The Five Schools of Islamic Law

Sub Title:

The Five Schools of Islamic Law: Al-Hanafi, al-Hanbali, al-Ja’fari, al-Maliki, al-Shafi’i

The Five Schools of Islamic Law: Al-Hanafi, al-Hanbali, al-Ja’fari, al-Maliki, al-Shafi’i

This work on the Shariah or Islamic Law offers a comparative study of the Divine Law that, according to authentic Islamic doctrines, embodies the Will of God in society. In the Islamic world view, God is the ultimate legislator. The five major schools that are used in the comparison are: Hanafi, Hanbali, Shafii, Maliki and Jafari.

The unity of the schools becomes apparent, but it is perhaps the differences that are of the greater interest because it shows how open the Law is to a variety of views.

It is from this diversity of interpretations of the Law, interpretations which are based on the Quran and the Sunnah, that unity develops when each diverse group is willing to concede the possibility of the other's interpretation when it is based on the same two sources. Inheritance is one of the Economic Issues of the five schools.

Other aspects of economic issues include prescribed poor-due (zakat), twenty percent tax (Khums), will and bequest (wasiyat) and inheritance (irs).

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Preface

The Islamic fiqh (jurisprudence) is divided into several sections: Ibadat (rituals) that include: ritual purity (taharah), prayers (salat), fasting (sawm), alms (zakat), one-fifth (khums) and pilgrimage (hajj).

These six chapters are included in the first part of the Book al-Fiqh 'ala al-madhilhib al-khamsah (Fiqh according to five schools of Islamic Law), which was published first by Dar al-'Ilm Ii al-Malayin, achieving unprecedented circulation, that prompted this foundation to republish it for the second, third and fourth time, all of which have run out of print.

The second section of Islamic fiqh contains the Individual conditions (al-'Ahwal al-shakhsiyyah), that include: marriage, divorce, will and bequest, endowment (waqf) and legal disability (hajr), which constitute the second part of the book published by Dar al-'Ilm Ii al-Malayin whose copies have run out of print.

Some honourable personages suggested to the Dar to republish the two parts in one volume, of which the first part to be Ibadat and the second al-'Ahwal al-shakhsiyyah. The Dar has complied, as the subject of the two parts being one, by the same author.

I hope that this work will be beneficial for the readers.

The Almighty Allah is the guarantor of success.

Author

Foreword

In the Name of Allah, the Beneficent the Merciful

Allah's benediction and peace be upon our Master Muhammad and his honourable Progeny and Companions.

It is stated in a holy tradition: "Gabriel descended upon Adam, and said to him: Allah has commanded me to let you choose one of these three: intellect ('aql), religion, and modesty (haya'). Adam said: I choose intellect. Then modesty and religion said: So we shall come with you, O Adam, as Allah has commanded us to be with intellect wherever it be."

The points to be derived from this hadith are:

1. Whatever is disdained by intellect has no place in religion, and one who has no intellect, has neither religion nor modesty, though praying all the night and fasting during daytime. Henceforth one of Muslims' Imams has said: The proper criterion with which we can distinguish between the Prophetic and non-Prophetic tradition is that it’s having substantial reality, and being un.der explicit light, since that which has no reality or luminosity is but an utterance of Satan.

2. As long as religion is inseparable from intellect, closing the door of ijtihad is regarded as closure to the door of religion, as ijtihad (inference of rules) means setting free of intellect ('aql), and giving room for deriving branches from their origins, since interdicting intellect is an interdiction to religion due to the interrelation between them. In other words, if we all for closing the door of ijtihad we have to abide by one of two choices: either to close the door of religion as we did with ijtihad, or to claim that intellect does not support religion, admitting none of its rules, which are both not accepted by logic of shar' (Islamic Law) and reason.

3. Any 'alim (scholar) who bigots for any creed (madhhab) is worse than the jahil (ignorant) who has not been a fanatic, in this case, for religion and Islam, but being fanatic for an individual, particularly the leader of the madhhab, as long as intellect does not necessitate following him in person. Also opposing the madhhab is not an opposition to the nature and reality of Islam, but to the leader of that madhhab, or more proper to the mental image he had of Islam.

Anyhow, we are all aware of the fact that in the first stage of Islam there were no madhahib (schools of law) nor firaq (sects), as Islam was free from any flaw and blemish, and Muslims have been the vanguard of all nations. We are also certainly aware that these sects and creeds have sown seeds of discord among Muslims, setting up barriers and distances that prevented their attaining to might and treading one path toward one end, creating thus a good chance for the colonialists and enemies of Islam to exploit this division for instigating seditions. The West could never dominate and extremely exploit and subdue the East, but only through this disunity and crumbling of forces.

For this reason, the staunch leaders made up their minds to apply the idea of making agreement among and consolidating the Islamic community, and striving for its interest with all available means, like opening the door of ijtihad, and annulling the prevalence of following a certain madhhab (creed).

It is known among the jurisprudents that the reason necessitating the closure of the door of ijtihad lies in that its opening has created confusion and chaos, as it was transgressed by juniors from among knowledge-seekers, and claimed by unqualified persons, that is: the reformers (muslihun) have cured the disease by exterminating the patient, not by uprooting the disease!

This claim was stated by the ancestors in their books, and reiterated by the tatters without any investigation or putting to the test. But I think the only reason for closing the door of ijtihad lies in that the oppressive ruler was fearing from freedom of opinion and criticism against him and his throne, so he resorted to trickery, using - as usual - the claim of protecting the religion, as a medium to rely upon any freeman disdaining from cooperating with his government upon debauchery and dissipation.

The best evidence for this fact is that the call for letting the door of ijtihad open has never emerged but only with the decline of the domination of the foreign and regressive powers, the call whose achievement was conditioned upon attaining freedom with its fullest meanings.

Thereafter, both imitation and submission to the avaricious are but slavery and servitude, which we have experienced for a long time, but time is opportune to have freedom in our thoughts, as we be free in our homeland, to abandon imitating a specific creed and a certain utterance, and to select from among the ijtihadat of all the madhahib (creeds) what can comply with development of life, and easiness of the Shari'ah (Islamic Law). If selecting from among the creeds is not an absolute ijtihad, it may be considered anyhow a sort of ijtihad.

On the basis, and for the sake of paving the way for selecting from among all the creeds, I have determined to compile this book, abridging in it all the opinions of the five schools of law: Ja'fari, Hanafi, Maliki, Shafi' i and Hanbali, from their sources.

These opinions include beliefs that conform to life and achieve justice, beside ideas which must be covered and rejected. So I have disdained from the latter for maintaining the honour of fiqh and fuqaha', and have published the former ones, doing my best to make them easy to understand by every knowledge-seeker, and expound them in a brief and explicit way.

On this course, I met with the difficulties that are faced by anyone intending to translate any book from a foreign language to his own language, as the difference between the old method and new method of writing is like that between the Arabic language and any other language.

I have come across some libraries, as I used to do every day, searching for what is recently brought out by publishers. In one of the libraries I saw a student from the Tunisian mission, intending to specialize in the Lebanese University, searching in books. When his eyes fell upon the book '"Ali wa al-Qur'an" in my hand, he asked my permission to look into it, but as soon as he read the advertisement on the cover about the book '"al-Fiqh 'ala al-madhahib al-khamsah", he rejoiced and said: “We are in bad need for a book like this”.

I said: What for? He replied: "We in Morocco follow the madhhab (creed) of al-'Imam Malik, and he is very strict in matters with which other imams deal leniently. We, the youth, whatever be our culture and trends, and regardless of others' opinions and charges against us, never intend to oppose Islam or rebel against its commandments. But we, at the same time, do not desire to be in distress and impediment while applying and abiding by Islam's rules, so in case of facing any trouble in which Malik is strict, we would like to know others' opinions in it, hoping for finding a way out to perform, feeling certain of not perpetrating any forbidden act. But getting acquainted with the fiqh of other schools of law has been infeasible for us, because our shaykhs ignore or disregard whatever contradicts Imam Malik's verdicts. If we refer to ancient books, it will be impossible for us to apprehend them due to the complexity, obscurity and prolixity that lead us nowhere, but in your book we shall find the simplification and facilitation badly needed by every youth."

I rejoiced at his saying, which prompted me to go forward in bringing out the other parts, making me not regretful or sorry for abandoning my former decision, as I intended in the outset to mention along with every opinion of every school, the proof upon which it was based, including a Qur'anic verse, or narration, or unanimity (ijma'), or reason ('aql), or a companion's utterance. But I have been recommended to suffice with mentioning the sayings alone, as this being easier for people to comprehend, and a good motive for the circulation of the book, as the proofs cannot be recognized but only by knowledgeable people.

It seem as if this saying has drawn my attention to a fact inherent inside me, since a large number of those who acquired fiqh are more concerned with fatwa more than with its proof or source, so how about others?! Then I changed my mind, being sufficed with abridging and exposing the opinions of the five schools of law, abandoning giving proofs and comments, except in some rare cases, with the aim that the book be for all people and not dedicated for certain elite, and for the public not for the elect.

Despite this, I faced a difficulty in translation not known but only by those who practised and suffered it, a difficulty I never met in all my previous works. Then I heard someone saying: Writing the fiqh according to the schools is too easy, as it is just conveying, no more no less, which is like the saying: War is no more than holding a weapon, and coming forth toward battle, with no consequences!

Whereas the fact is that fiqh is an infinite sea, as one matter can be divided into different ramifications, about any of which the schools' opinions may be numerous and contradictory, and rather the opinions of the fuqaha' of the same school, or even the opinions of the same scholar. Anyone trying to have full conception of any ethical matter, will encounter the severest hardship and suffering, so how about writing the whole fiqh, with its branches: the rituals ('ibadat) and transactions (mu'amalat) according to all schools?!

Thus when al-'Azhar Mosque intended to prepare the book "al-Fiqh 'ala al-madhahib al-'arba'ah" in 1922, it chose a committee of renowned 'ulama' of schools for this purpose, each writing according to his school. So the committee embarked on this task that lasted for years, till succeeding in compiling the rules without their proofs, as we witness in this book. While admitting that this work has relieved me of many efforts, but it has at the same time caused me many troubles in numerous matters, compelling me towards searching and investigation into lengthy and abridged books for so long time. I spent more than thirty-three years in acquiring, teaching and compiling fiqh, so how about one knowing nothing about it except the name?!

While the book "al-Fiqh 'ala al-madhahib al-'arba'ah" reports every school's opinion separately, as stated in the books of its fuqaha' except what is concurred by all the four schools, this book states together the agreement of two or more schools in one sentence, for the sake of brevity and easiness.

I never experienced a hardship like that I found in contradiction of transmission, and multiplicity of narrations from one imam about one matter, as this book supposes prohibition, the second one permission, while the third book considers the same matter as an honour. And as my intention has been facilitation for the readers, so I avoided, as possible, reporting various narrations, being sufficed with narrating from the previous authors, especially when the narrator being a follower of the imam he is narrating from. I may sometimes report the concurrence of the four Sunni imams about an issue being agreed upon by three of them, while two narrations have been reported from the fourth imam: one concurs with the three and the other contradicts them. So I choose the concurrent one for the sake of narrowing the gap and circle of difference and dispute.1

But if the narration was being concurred by all, I mention the disagreeing one explicitly referring most the time to the four schools: Shafi' i, Hanafi, Maliki and Hanbali by the term "al-'Arba'ah" (the four) alone.

Concerning the Ja'fari fiqh followed by the Imamiyyah2, I have reported from it that which got their unanimity, and chosen only that is widely known from the issues upon which they differed.

In conclusion I like to reiterate the statement mentioned in the preface of the book "al-Fiqh 'ala al-madhahib al-'arba'ah" whose compilation has been shared by seven renowned 'ulama' from al-'Azhar, which reads:

"It is no fault that this book being blamed for any shortage, since perfection is only Allah's, but the fault is in that who sees the wrong and never guides to its right, and in that who guides to the right but never corrects his wrong."

We implore Allah, the Exalted, to guide us to the truth, making these pages of benefit for those seeking it, and praise be for Him at first and last.

Muhammad Jawad Maghniyyah

- 1. Here is an example: The Imamiyyah, Shafi’is, Hanafis and Malikis hold that Zakat (alms) is due for the brothers and paternal uncles, while two opinions are ascribed to Al-Imam Ahmad Ibn Hanbabal. One observes permission adn the other prohibition, so I mentioned the concurrence.

- 2. The term Imamiyyah has been used for those believing in the obligation of (following) the Imamate (Twelve Imams) and the extablishment of the text (nass) from the Prophet (S) appointing Ali Ibn Abu Talib as his successor. The Imamiyyah fiqh is called al-Fiqh al-Ja’fari as the disciples of al-Ima Ja’far as-Sadiq have written from him four hundred compilations for four hundred compilers, that have been called “Usul al-‘Arba’mi’ah”. Then they were compiled in four books called “Al-Kafi”, “Man la-yahduruhu al-Faqih”, “Al-Istibsar” and “al-Tahdhib”, which are considered the most renowened references for getting acquantained with the traditions of rules for the Imamiyyah.

Part 1: Ibadah

1. Taharah, Ritual Purity

The Muslims have paid great attention to Taharah (ritual purity) and have written lengthy treat about it. They make their children get accustomed to it and teach it in their places of worship and instruction. The leaders of all the schools of fiqh have considered it a basic condition for the validity of 'ibadah (worship), and I am not exaggerating when I say no other religion had given importance to Taharah to the extent of Islam.

Taharah literally means purity, and in the terminology of the legists it implies the removal of hadath or khabath. The latter pertains to such physical impurities as blood and excrements. Hadath is a ritual condition which occurs to a person consequent to his performing an act that prohibits him from performing salat and necessitates the performance of wudhu or ghusl or tayammum. The tahara from hadath is not achieved unless accompanied by the intention (niyyah) to seek nearness to God (taqarrub) and obey His command regarding it. As to the tahara of the hands, clothes and utensils from najasah (impurity), it requires no niyyah; rather, if the wind carries a defiled (najis) piece of clothing and it falls into a 'large quantity' of water (al-mil al-kathir, details follow), it attains tahara automatically.

Water brings about tahara from both hadath and khabath. This accords with these statements of God Almighty:

وَيُنَزِّلُ عَلَيْكُمْ مِنَ السَّمَاءِ مَاءً لِيُطَهِّرَكُمْ بِهِ...

And He sends down upon you water from heaven to purify you thereby...(8:11)

وَأَنْزَلْنَا مِنَ السَّمَاءِ مَاءً طَهُورًا

And We sent down from heaven pure water. (25:48)

Tahur means that which is itself pure and capable of purifying others as well. Considering that water is found either in a small (qalil) or a large quantity (kathir), and includes juicy extracts, solutions and water in its natural form, the legists have divided water into two types: mutlaq (pure) and mudaf (mixed).

Al-Ma' al-Mutlaq (Pure Water)

Al-ma al-mutaq is water that has retained its natural state-the state possessed while coming down from the sky or welling from the ground that it is correct to apply the word 'water' to it without the addition of any adjective which would alter its natural state. That includes rainwater, seawater and water of river, well, spring and water derived from hail and snow.

Water is considered to remain in its 'pure' form if the change that occurs in it is due to factors usually unavoidable, e.g. mud, soil, stagnation, fallen leaves or collection of straw, etc., or the salt, sulphur, and other minerals that it contains at its source or picks up in its course. Al-ma al-Mutlaq is considered pure and purifying from both hadath and khabath by absolute consensus. As to the statement that has been narrated from 'Abd Allah ibn 'Umar, that he preferred tayammum to seawater, it stands refuted by these words of the Prophet(S).

من لم يطهره البحر فلا طهره الله

He whom the sea does not purify, will not be purified by God.

Al-Ma' al-Musta'mal (Used Water)

When najasah is removed from the body, a piece of clothing or a utensil by pure water, the water separating from the object purified, either freely or by wringing, is called 'ghusalaah' or 'musta'mal' by the legists. It is impure (najis) because it is water in 'small quantity' (al-ma' al-qalil) that has come into contact with the impurity and has consequently become najis, irrespective of whether it has itself undergone any change or not. Accordingly, it cannot remove khabath or hadath.

A group of legists belonging to different schools observe: If this water separating from the washed object undergoes a change by the najasah, it is najis. Otherwise its state would be the state of the washed object-if najis then najis, and if tahir then tahir.

This observation will not be correct unless we take into account the state of the object being washed before water has reached it, for the object containing najasah is purified by the water poured over it and the water separating from it would be najis due to having come into contact with najasah.

If water is used for removing hadath, it is considered pure (tahir) but not purifying (mutahhir). This is the preponderant opinion of the Hanafi school and the apparent view of al-Shafi'i and Ahmad. According to one of the two opinions narrated from Malik, it is both pure and capable of purifying1.

The Imamiyyah say: The water used for non-obligatory wudhu and ghusl --e.g ghusl al-tawbah or ghusl al-jumu'ah-is pure as well as capable of purifying from both hadath and khabath; i.e. it is valid to use it for ghusl, wudhu' and for removing najasah. As to the water used for performing obligatory ghusl -such as ghusl al-janabah and ghusl al-hayd-the Imami legists concur that it can remove najasah, but they differ concerning its ability to purify from hadath and the validity of wudhu' and a second ghusl with it.

A Subsidiary Issue

About a person in the state of janabah (the state of major ritual impurity following sexual intercourse) who dips himself in al-ma al-qalil after cleansing the locale of najasah and makes niayyah for purification from the hadath, the Hanbalis observe: The water will be considered used and the janabah too will not be removed; he will have to repeat the ghusl.

The Shafi'i, Imami and Hanafi schools state: The water will be considered used, though the janabah will be removed and he will not have to repeat the ghusl2.

The people of the Middle Ages stood in need of this and similar issues, which have been discussed in voluminous works of fiqh, because water was more scarce and expensive in those days than oil is today. But now, after human knowledge has become capable of transporting water from under the ground to every house in the highest of mountains, our interest in this issue is like the interest shown to historical relics kept in museums.

Mixed Water (al-Ma' al-Mudaf)

Al-ma al-mudaf is either water extracted from fruits, e.g. lime and grape juice, or that which was pure initially before something was added to it that changed its character, e.g. rose-water and soda-water. It is tahir, but does not purify khabath as per the consensus of all schools except the Hanafi. The Hanafis consider valid the removal of khabath with any non-oily liquid, except that which has changed by cooking, and al-Sayyid al-Murtada from among the Imamiyyah has concurred with them.

All the schools, except the Hanafi, also concur that it is not valid to perform wudhu or ghusl with al-ma' al-mudaf. According to Ibn Rushd's Bidayat al,-mujtahid wa nihayat al,-muqtasid3 and Majma ' al-'anhur4 Abu Hanifah has considered valid the performance of wudhu with date-wine (nabidh al-tamr) during travel. Further, it has been mentioned in Ibn Qudamah's al-Mughni5 according to Abu Hanifah it is valid to perform wudhu with al,-ma al-mudaf. Al-Shaykh al-Saduq, an Imami, held that it is valid to perform wudhu and ghusl al-janabah with rose-water.

The Hanafis have relied for proving the validity of wudhu with al-ma' al-mudaf on this Qur'amc verse:

… فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبً…

...And when you can find no water, then have recourse to wholesome dust... (5:6)

They say: The verse means, 'when you cannot find water, mutlaq or mudaf'; accordingly when al-ma' al-mudaf is available, it is not valid to resort to tayammum. The same verse has been relied upon by the imams of other schools to prove its invalidity. They observe: The word al-ma in the verse brings to one's mind al-ma' al-mutlaq and not al-ma al-mudaf.

Hence the meaning of the verse will be: If you do not find al-ma' al-mutlaq, then resort to tayammum. In this case the presence and absence of al-ma al-mudaf would be irrelevant. This is the correct opinion, because when you ask water from the owner of a cafe or someone else, he will not give you juice or soda, and it is a known fact that the subjects of the Shari'ah laws are understood on the basis of common usage.

This difference of opinion of the imams of fiqh concerning the interpretation of the word al-ma' in the verse is similar to the difference between men of letters concerning the meaning of a couplet or philologists concerning the meaning of a particular word. This difference is one of understanding and ijtihad and not of jurisprudential principles and sources.

Al-Kurr and al-Qullatan

All the schools concur that if the colour, taste or smell of water changes as a result of corning into contact with najasah, it will become najis, irrespective of its being qalil or kathir, flowing or stationary, mutlaq or mudaf. But if the smell of water is changed by the diffusion of the smell of najasah without its coming into contact with it (such as where there is a carcass nearby and the air carries its smell to the water) the water will remain tahir.

But in the case where najasah mixes with water without changing any of its qualities (colour, taste and smell), Malik, in one of the two opinions narrated from him, says: It is tahir whether it is qalil or kathir. The other schools observe: It is najis if qalil, and tahir if kathir.

But they differ in their definition of kathir. The Shafi'is and the Hanbalis6 state: 'Kathir' is that which has reached two qullahs (literally meaning jar, pot, bucket and olla) in accordance with the tradition: If water has reached two qui/ah s it is not affected by khabath Two qullahs equal 500 Iraqi ritl (1 ritl is approximately 330 grams). Some scholars of al-'Azhar consider it equal to 12 tanakah. The Imamniyyah observe: 'Kathir' is that which is at least equal to a kurr, because of the tradition:

إذا بلغ الماء قدر كر لم ينجسه شيء

If water has reached the extent of a kurr nothing makes it najis.

A kurr is equal to 1200 Iraqi ritl and approximately to 27 tanakah. The Hanafis say: 'Kathir' means a quantity of water whose other end remains motionless if one end of it is disturbed.7

From this discussion it becomes clear that the Malikis do not take into consideration the measures qullatan or kurr, and there is no specific quantity for water in their opinion. Hence 'qalil' and 'kathir' quantities are similar for them in that when one of the qualities is changed they become najis, not otherwise. Their opinion has been favoured from among the Imammiyyah by Ibn Abi 'Aqil who has acted on the general import of the tradition:

الماء طهور لا ينجسه شيء إلا ما غلب ريحه أو طعمه أو لونه

Water is pure, and nothing makes it najis except that which affects its smell, taste or colour.

But this tradition is general ('amm) and the tradition of qullataln and kurr is particular (khass), and the particular enjoys precedence over the general.

The Hanafis also do not take into account qullatan and kurr relying instead on movement, and regarding this movement I have not found any trace in the Qur'an and the Sunnah.

A Subsidiary Issue

The Shafi'i and the Imami schools observe: Liquids other than water, e.g. vinegar and oil, become najis merely on coming into contact with najasah, be their quantity qalil or kathir, and regardless of any change that may affect them.

This opinion corresponds with the principles of the Shari'ah because that which is understood from the Prophet's statement:

إذا بلغ الماء قلتين لم ينجسه شيء

al-ma al-mutlaq. The Hanafis say: The rule applicable to other liquids is the same as that of al-ma al-mutlaq in relation to their being qalil and kathir, and hence only their qalil, and not kathir, quantity will become najis on contact.

It has been mentioned in the Hashiyah of Ibn 'Abidin8: The rule applicable to liquids, as per the most correct opinion, is the one applicable to water, and even if urine falls into a juice of kathir quantity it will not be polluted, and if blood from someone's foot mixes with the juice it will not become najis.

Flowing and Stationary Water (al-Jari wa al-Rakid)

The schools differ concerning flowing water. The Hanafis observe: Every kind of flowing water-irrespective of its being qalil or kathir and regardless of its connection to a source-will not become najis solely on contact. Rather, if there is najis water in one vessell and (tahir water in another and both of them are poured together from a height so that they mix in the air before coming down, all the water will be tahir.

Similar is the case if the two are made to flow on the ground9. Thus the criterion is flow, and wherever and in whatever manner it is achieved, flowing water will enjoy the status of al-ma al-kathir. But if it does not flow, then it is like qalil even if it is connected to a source.

On this basis, they have ruled that when rainwater falls on najis ground and does not flow on it, the ground will remain najis.

Consequently, according to the Hanafis, water which does not become najis on coming into contact with najasah is of two types: first, a body of stationary water whose other end remains motionless when one end of it is disturbed; second, flowing water, irrespective of its mode of flow. As to al-ma al.-qalil that becomes najis on coming into contact with najasah, it is a body of stationary water whose other end is set in motion if one end of it is disturbed.

The Shafiis neither differentiate between flowing and stationary water nor between one connected to a source and one not connected. The criterion is simply its quantity, qalil or kathir. Hence kathir, which is a body of water at least equal to qullatan, will not become najis on contact, and that which is less than qullatan will become najis, whether flowing or stationary, and whether welling from a source or not.They rely on the unqualified nature of the tradition:

إذا بلغ الماء قلتين لم يحمل خبثا

They say: When -water is flowing and there is najasah in it, if the body of the flow containing the najasah has reached the quantity of qullatan without there being a change in its qualities, all the water will be tahir; and if the quantity of the body is less than qullatan, it will be najis, although the water above and beneath the flowing body of water will be tahir.

They interpret a flowing portion (jiryah) as the body of water between the two banks of a stream. Therefore, according to the Shafi'is the difference between flowing and stationary water is that stationary water is considered altogether as a single body of water, while flowing water, although its parts are connected with each other, is divided into flowing portions, each such portion having a separate status and becoming najis only if it is qalil and not otherwise.

Consequently, if one's hand is najis and one washes it in one of the portions of flowing water and this portion is less than qullatan, it is not valid for one to drink from it or perform wudhu with it, because it is najis. One must wait for the next portion or move upstream or downstream.

A great difference is noticeable between the opinions of the Shafi'i and the Hanfai schools concerning flowing water; the Hanafis consider flowing water-even if little-as capable of purifying.

This is indicated by their example of two vessels of water, one tahir and the other najis, and the water becomes tahir if the two waters are mixed in a state of flow. The Shafi'is, on the other hand, do not give credence to flow even if it is a big stream and consider each 'flowing portion' separately despite the portions being connected with each other.

The Hanbalis say: Stationary water becomes najis solely on contact if it is less than qullatan, irrespective of whether it is connected to a source or not. But flowing water does not become najis unless its qualities (colour, smell and taste) change. Thus the rule applicable to it is the rule applicable to al-ma al-kathir , even if it is not connected to a source. This opinion is close to the one held by the Hanafis.

As to the Maliki view, we have already mentioned that in their opinion qalil does not become najis solely by contact. They also do not differentiate between stationary and flowing water. To sum up, they do not differentiate between qalil and kathir , flowing and stationary, and water connected to a source and otherwise.

The only criterion for them is the change of qualities due to najasah. Hence if najasah changes any one of the qualities of water it becomes najis, otherwise it remains tahir irrespective of whether it is flowing or stationary, qalil or kathir.

The Imamiyyah state: Flow has no effect at all and the criterion is the existence of a source of flow or the presence of kathir quantity. Hence if water is connected to a source if through a trickle-it will fall under the rule applicable to kathir. That is, it will not become naiis solely on contact even if it is qalil and stationary, because of the preservative power and abundance of the source.

When water is not connected to a source, if it amounts to a kurr nothing will make it najis except the change of one of its qualities; but if it is less than a kurr , it will become najis on contact irrespective of its being stationary or flowing, except where it flows downstream, where the upstream part will not become najis by an insignificant contact.

It follows that the presence or absence of flow is equal in the eyes of the Irnamiyyah, and it is observable that they stand apart from the other schools in considering the source of flow a criterion and in applying to the water connected to it the rule applicable to al-ma al-kathir even though it may appear to be qalil.

Al-'Allamah al-Hilli is an exception here, because he does not attach any importance to source and considers water to become najis solely on contact if its quantity is less than a kurr. Rainwater, during rain, is considered by the Imamiyyah as equivalent to water connected to a source and al-ma al-kathir.

It does not become najis by contact and purifies the earth, clothes, vessels and other objects solely by raining upon them after the najasah itself is removed from them.

Purifying Najis Water

1. Concerning al-ma al-qalil that has become najis by contact without any of its qualities having undergone a change, the Shafi'is observe: If water is added to this najis water so that they together add up to qullatan, it will become both tahir and mutahhir, irrespective of whether the water added is tahir or najis.

And if this water is later separated after its coming together, it will retain its taharah. Therefore, if a person has two or more vessels, all containing najis water, and all their water is collected in a single place so that their total volume reaches qullatim, it will become both tahir and mutahhir10 .

The Hanbalis and most Imami legists state: Al-ma al-qalil is not purified after it is increased to a kurr or qullatan irrespective of whether the added water is najis or tahir, because adding najis water to another of its kind does not make the whole tahir. And similarly al-ma al-qalil which is tahir becomes najis by coming into contact with najis water.

Hence it is necessary for purifying it that it be connected to a kurr quantity or to water having a source of flow as per the Imami view, and to qullatan as per the opinion of the Hanbalis.

2. If the qualities of al-ma al-kathir have changed because of najasah, it will become tahir if the change vanishes; it will not require anything else. This is the opinion of the Hanbali and the Shafi'i schools.

The Imamiyyah say: If al-ma al-kathir does not have a source of flow it will not become tahir on the vanishing of the change; rather, it is necessary to add a kurr of tahir water to it after the vanishing of the change, or to connect it with a source of flow, or there be rain over it.

And if water has a source of flow it becomes tahir solely by the vanishing of the change even if it is qalil. The Malikis observe: Water which has become najis is purified by pouring al-ma al-mutlaq over it until the qualities of the najasah disappear.

The Hanafis state: Najis water becomes tahir on flowing. Thus if there is najis water in a tub and water is poured over it to make it overflow, it will become tahir. Similarly, if there is najis water in a pool or a pit, and then another pit is dug beside it at a distance, even if small, and the water is made to flow in the channel between them so that it gathers in the other pit, it will become tahir.

Now if this water becomes najis a second time after becoming stationary in the second pit, a third pit will be dug to repeat the same process, and the water will again become tahir. This process can go on infinitely.

Therefore a body of water that could not be used while it was stationary, can validly be used for wudhu' if caused to flow in any manner, even if it contains a carcass or people urinate in its downstream part without producing any observable effect in the flow. All this despite the knowledge that it is not connected to any ource of flow11.

Al-Najasat

Dog: It is najis except in the opinion of Malik, though he says: A vessel licked by a dog will be washed seven times not because it is najis, but because of ta'abbud (obedience to the command of the Lawgiver).

The Shafi'i and the Hanbali schools observe: A vessel licked by a dog will be washed seven times, of these once with dust. The Imamiyyah state: A vessel licked by a dog will be washed once with dust and then twice with water.

Pig: It is similar to a dog in the view of all the schools except the Imami which considers it necessary to wash on contamination with it seven times with water only. Similar to it is a dead juradh, which is a large land rat.

Corpse: The schools concur regarding the najasah of the carcass of a land animal-other than man-which possesses blood which flows on coming out. As to the human corpse, the Maliki, Shafi'i and Hanbali schools consider it tahir.

The Hanafis consider it tahir. The Hanafis consider it najis though it becomes tahir after ghusl. The Imami view is the same though they restrict it to the corpse of a Muslim. There is a consensus among all the schools concerning the (ahiuah of the musk derived from the musk-deer.

Taharah

Blood: The four Sunni schools concur upon the najasah of blood. Among exceptions to this is the blood of a martyr as long as it is on his body, the blood retained in the body of a slaughtered animal, and the blood of fish, lice, flea and bug.

According to the Imamiyyah, the blood of every animal whose blood flows on coming out is najis irrespective of whether it is human blood or not, the blood of a martyr or a non-martyr. They consider the blood of an animal which does not flow out, whether it is a terrestrial or sea animal, as tahir. Similarly, they consider the blood retained in a slaughtered animal as tahir.

Semen: The Imami, the Maliki and the Hanafi schools consider the semen of human beings and other animals as najis, though the Imamis exclude the animals whose blood does not flow out and regard their semen and blood as tahir.

The Shafi'is regard the semen of human beings as well as other animals, except the dog and the pig, as tahir. According to the Hanbalis, human semen and that of animals used for food is tahir and that of other animals najis.

Pus: It is najis in the opinion of the four schools and tahir according to the lmamis.

Human Urine and Excrement: They are considered najis by consensus.

Animal Excrement: Animals other than man, are either birds or other animals, and among the two are those which are used for food and those which are not. Among the birds that are eaten is the pigeon and the hen, and of those which are not eaten are the eagle and the falcon (although Malik permits all of them for food).

Among animals other than birds, there are some which may be used for food, e.g. the cow and the sheep, and others which are unlawful, e.g. the wolf and the cat (although Malik allows them).

The schools differ in their opinions regarding the tahara of animal excrement. The Shafi'is say: Every kind of animal excrement is najis. The Imamis state: The excrement of all birds is tahir, so also that of every animal whose blood does not flow on coming out.

But those animals whose blood flows on coming out, if permissible for food--e.g. the camel and the sheep-their excrement is tahir; if not-such as the bear and other beasts of prey-their excrement is najis. The excrement of every animal whose lawfulness for eating is doubtful is tahir.

The Hanafis observe: The excrement of animals other than birds is najis. Among the birds themselves, those which excrete in mid-air--e.g. the pigeon and the sparrow-their excrement is tahir, and those which excrete on the ground--e.g. hens and geese-their excrement is najis.

According to the Hanbali and the Maliki schools, the excrement of animals permitted for food is tahir, and that of animals forbidden for food whose blood flows on coming out, is najis, irrespective of its being a bird or any other animal. All the schools concur that the excrement of any animal that eats human excrement is najis.

Liquid Intoxicants: All the schools consider it najis. The Imamiyyah add a further qualification: that which is intrinsically liquid. By this condition they include an intoxicant that dries due to an external factor. Hence it continues to remain najis. An Imami legist states: Both the Sunni and Slui 'ulama' concur regarding the najasah of liquor, except a small group from among us and them whose opposition is not taken notice of by the two sects.

Vomit: The four schools consider it najis while the Imamiyyah regard it as tahir.

Madhy and Wadhy: The Shafi, the Maliki and the Hanafi schools consider both the secretions najis, while the Imamiyyah consider both tahir. The Hanbalis differentiate between these secretions of animals that make lawful food and others which may not be used for food.

They regard these secretions of the former as tahir and of the latter as najis. 'Madhy' is the thin genital discharge emitted while caressing, and wadhy is a dense discharge emitted following micturition.

In the same manner as the four schools differ with the Imamiyyah in considering the vomit, rnadhy and

wadhy as najis, the Imamiyyah differ with the other schools concerning the najasah of the sweat of a junub person whose janabah is consequent to an unlawful sexual act. They say: The sweat of one who becomes junub by fornication, sodomy, masturbation or copulation with an animal and perspires before performing the ghusl, is najis.

Left-over: The Hanafi, the Shafi'i and the Hanbali schools state: The left-over of a dog and pig is najis. They also concur that the left-over of an ass and a donkey are tahir , though not mutahhir (purifying). Rather, the Hanbalis observe: Wudhu may not be performed by the water left-over by any animal whose meat is not eaten, except a cat and that which is smaller than it in e.g. rat and weasel.

The Hanafis have added to the left-over of the dog and the pig: the left-over of a drunk person immediately after drinking, the left-over of a cat immediately after eating a mouse, and the left-over of a wolf, lion, panther, leopard, fox and hyena12.

The Imamiyyah state: The left-over of a najis animal--e.g. dog and pig-is najis, and that of a tahir animal is tahir , irrespective of its permissibility for food, the left-over of every animal is subordinate to its own tahirah and najasah.

The Malikis observe: The left-over water of a dog and a pig is tahir, and may be used for drinking and wudhu13.

Rules of the Closet

The Shafi'i, the Maliki and the Hanbali schools concur that it is not haram to face, or keep one's back to the qiblah while relieving oneself in a closet or in open air, provided there is a screen. However, they differ concerning relieving oneself outdoors without a screen. The Shlafi'is and the Hanbalis do not prohibit it, and the Malikis do.

The Hanafis say: It is reprehensible to the extent of being haram, whether it be in closed or open space14.

The Imamiyyah observe: It is totally haram to face or turn one's back to the qiblah while relieving oneself whether it be in a closed or open space, with or without a screen.

All the schools concur that al-ma' al-mutahhir removes najasah from the urinary and anal outlets. The four schools also concur that stones also suffice for purifying the two outlets. The Imamiyyah say: The urinary outlet is not purified except with water; as to the anal outlet there is an option, either to use water or to wipe it thrice with stones or a tahir rag, provided the excrement has not spread around the outlet, in which case only water may be used.

According to the Imami, the Shafi'i and the Hanbali schools repetition is necessary when stones and the like are used for wiping, even if purification is achieved the first time. The Malikis and Hanafis do not consider repetition necessary ·and regard the purification of the outlet as sufficient. Similarly, the Hanafis allow the removal of najasah from the two outlets with any tahir liquid other than water.

Al-Mutahhirat (The Purifiers)

Al-ma' al-mutlaq: It is tahir and mutahhir by consensus.

Other liquids: Only according to the Hanafis is any tahir liquid, e.g. vinegar and rose-water, mutahhir.

The Ground: It purifies the soles of the feet and the sole of shoes in the opinion of the Imami and the Hanafi schools provided it is walked on or they are rubbed on it and the actual najasah is thereby removed.

The Sun: The Imamiyyah observe: The sun purifies the earth and other fixed objects, such as trees (including leaves and fruit), buildings and poles. Similarly, it purifies straw mats among movable things, not carpets and sofas. The condition for its purifying is that these objects should dry solely as a result of the sun's heat without the aid of wind.

The Hanafis state: Drying purifies the ground and trees irrespective of its being achieved by the sun or the wind. The Shafi'i, the Maliki and the Hanbali schools concur that the ground is neither purified by the sun nor the wind; rather it requires the pouring of water over it.

They differ concerning the manner of its purification.

Al-Istihalah (Transformation): It is the changing of one substance to another (e.g. the changing of deer's blood into musk). It results in purification, by consensus.

Fire: The Hanafis say: The burning of najasah by fire purifies provided the actual najasah disappears. They consider najis clay as tahir when it is turned into fired clay and najis oil tahir when made into soap. The Shafi'i and the Hanbali schools observe: Fire is not among the mutahhirat. They hold an extreme position in this regard and consider even the ash and smoke of a najis object as najis. The Malikis regard the ash as tahir and the smoke as najis.

According to the lmamiyyah fire plays no part in purification and the criterion in it is istihala. If najis wood is transformed into ash or najis water into steam they become tahir. But if wood becomes charcoal and clay becomes earthenware, the najasah will remain because transformation has not occurred.

Tanning: The Hanafis observe: Tanning purifies the skin of a carcass and every other najis animal, except pigskin. As to the skin of a dog, it becomes tahir by tanning and fit to be prayed on15. The Shafi'is say: Tanning is mutahhir, except for the skin of the dog and the pig. The Malikis, the Hanbalis and the Imamis do not consider tanning as mutahhir, although the Hanbalis allow the use of a najis tanned skin where liquids are not involved, so that its use does not lead to the spread of najasah.

Carding: The Hanafis say: Cotton is purified. on being carded.

Disposition: According to the Hanafis, when a part of wheat and the like becomes najis, if a part of it equal to that which had become impure is disposed of by being eaten, gifted or sold, the remainder will be purified16.

Rubbing: The Hanafis say: Semen if removed by rubbing does not require water, because taharah is achieved by rubbing.

Wiping: The Hanafis observe: An object which has a polished surface, e.g. iron, copper and gold becomes tahir solely by wiping and does not require water. The Imamis state: The removal of najasah from the body of an animal, achieved in any manner, is sufficient for purification; but vessels, clothes and the human body require to be purified by water after the removal of najasah.

Saliva: The Hanafis say: if the breast or a finger becomes najis, they become tahir on being licked thrice17 .

Boiling: The Hanafis state: if najis oil or meat is boiled on fire, they become tahir. A group of Imamiyyah legists observe: The grape juice on boiling becomes najis, and when two-thirds of it evaporates on boiling it automatically becomes tahir.

Conditions Requiring Wudhu

Discharge of Urine, Faeces and Wind

There is a consensus among Muslims that discharge of urine and excrement, as well as wind, cause Wudhu’' to break. The coming out of a worm, stone, blood and pus breaks the Wudhu’' in the opinion of the Shafii, Hanafi and Hanbali schools and not in the opinion of the Malikis if these things have been produced in the stomach. But if they are not produced in the stomach (e.g. as when someone has swallowed a. pebble and it comes out) the Wudhu’ will break. The lmamis observe: The Wudhu’' will not break unless these things are discharged stained with excrement.

Discharge of Madhy and Wadhy

According to the four schools their discharge breaks the Wudhu’', but doesn't according to the Imamiyyah . The Malikis exempt a person who suffers with a chronic flow of madhy.

Loss of Consciousness

If someone loses his senses due to intoxication, madness, fainting or epilepsy, Wudhu’' is broken, by consensus of all the schools. As to sleep, the Imamiyyah say: Sleep breaks the Wudhu’' when it prevails over the mind, the hearing and the vision so that the person asleep neither hears nor understands the talk of those present nor sees anyone of them, irrespective of whether he is lying down, standing or sitting. The Hanbali view is nearly the same. The Hanafi observe: If a person who has performed Wudhu’' sleeps lying down or reclining on one of his sides, his Wudhu’ breaks. But if he dozes while sitting, standing, kneeling or prostrating, it will not. Hence if one sleeps in his salam in any of its postures, his Wudhu’ remains intact even if he sleeps for a long period18.

The Shafi'is state: If (the sleeping posture is such that) the outlet of the wind is pressed firmly like a capped bottle, the Wudhu’ is not broken by sleep, otherwise it is broken. The Mailikis differentiate between heavy and light sleep. Hence if sleep is light the Wudhu’ remains intact; so is the case if the person in Wudhu’ sleeps deeply for a short period while his outlet is blocked. But if he sleeps soundly for a long duration, his Wudhu’ will break irrespective of whether the outlet is blocked or not.

Emission of Semen

In the opinion of the Hanafis, the Mailikis and the Hanbalis, emission of semen breaks the Wudhu’; it does not in the opinion of the Shafi'is. The Imamiyyah state: Emission of semen requires ghusl and not Wudhu’.

Touch

The Shafi'is observe: If a man in Wudhu’ touches (the skin of) an ajnabi woman (any woman apart from wife and female relations within prohibited degrees of marriage) without there being any intervening medium (like clothing), his Wudhu’ will break. But if the woman is not an ajnabi -such as one's mother or sister-the Wudhu’ will not break. The Hanafis say: Wudhu’ is not broken except by touch accompanied with erection.

The Imamiyyah say: Touch has absolutely no effect. That was concerning touching women. As to a person in Wudhu’ touching his frontal or rear private parts without intervening medium, the Imami and the Hanafi schools do not regard that as invaliding Wudhu’. The Shafi'is and the Hanbalis say: Wudhu’ is invalidated by such a touch regardless of its being with the palm of one's hand or its back.

The Malikis are said to differentiate between touching with the palm-in which case the Wudhu’ is broken-and touching with the back of the hand-in which case it remains intact19.

Vomiting

According to the Hanbali school, vomiting in general breaks Wudhu’. In the opinion of the Hanafis it does so only when it fills the mouth. In the opinion of the Shafi'i, the Imami and the Maliki schools, it does not break the Wudhu’.

Blood and Pus

According to the Imamiyyah, the Malikis and the Shafis, anything that comes out of the body from a place other than the two outlets-e.g. blood and pus-does not invalidate the Wudhu’'. The Wudhu’' is broken, say the Hanafis, if it spreads from its source. The Hanbalis say: The Wudhu’' is broken if the quantity of blood or pus coming out is large.

Laughter

There is a consensus among all the Muslims that laughter makes salat batil. It does not invalidate the Wudhu’', during or outside salat, except in the opinion of the Hanafis, who say: Wudhu’' is broken if one laughs during Salat, but not if laughter occurs outside it.

Meat of a Slaughtered Animal

Only the Hanbalis consider the Wudhu’ to break if a person eats the meat of a slaughtered animal.

Istihadah Blood

Al-'Allamah al-Hilli, one of the major Imami legists, writes in al-Tadhkirah : The discharge of istihada blood, if its quantity is little, requires Wudhu’. Other lmami 'ulama', except Ibn Abi 'Aqil, have also adopted this view. Malik observes: Wudhu’ is not compulsory for a woman having istihadah discharge.

The Objects of Wudhu’

Legists consider hadath to be of two kinds: minor and major. Minor hadath requires only wutdu, and the major one is of two types: that which requires only ghusl and that which requires both ghusl and Wudhu’. The details will be given shortly. The presence of the minor hadath (al-hadath al-'asghar) is a hindrance to the performance of the following acts:

1. Wajab and mustahabb salat, as per the consensus of all the schools. The Imamiyyah have excepted the funeral prayer (salm al-janazah), observing: It is not necessary to be tahir for salat al-janazah, though it is mustahabb to be so, considering that it is a prayer and not salat in its real sense. This will be further discussed in its proper place.

2. Tawaaf, like salat, is not valid without taharah according to the Mailiki, Shafi'i, Imami and Hanbali schools, in accordance with the tradition :

الطواف في البيت صلاة

(Tawaaf in the Sanctuary is salat). The Hanafis say: One who performs tawaaf of the Ka'bah in a state of hadath performs it validly, though he sins thereby.

3. According to the four schools, tahirah is wajib for performing prostration (sujud) made obligatory by the recitation of certain verses of the Qur'an and the prostration performed to express gratitude (shukr). The Imamiyyah consider it mustahabb.

4. All the schools concur that it is prohibited to touch the script of the Qur'an without taharah, but they differ regarding the permissibility of someone in a state of minor hadath writing the Qur'an, reading it from a script or from memory, touching it through an intervening medium and wearing it as an amulet.

The Malikis observe: It is not permissible for him to write it or touch its binding even through an intervening medium, though he may read it from a script or from memory. But they, i.e. the Malikis, differ among themselves regarding carrying it as an amulet.

The Hanbalis state: Writing it and carrying it as an amulet with a cover is permissible.

The Shafi'is say: It is not permissible to touch its cover even if detached from it and its hanger while it is hanging from it, though it is permissible to write it, carry it as an amulet, and to touch a cloth embroidered with Qur'anic verses.

The Hanafis observe: It is not permissible to write or touch the Qur'an even if it is written in a different language; but it is permissible to read it from memory.

According to the Imami school, it is haram to touch Arabic script of the Qur'an without an intervening medium, irrespective of whether the script is in the Qur'an it lf or somewhere else. But it is not haram to recite or write it, or carry it as an amulet and to touch its non-Arabic transcription, excepting the glorious name, 'Allah,' which it is haram for a person in a state of hadath to touch, regardless of the language in which it is written and irrespective of whether it occurs in the Qur'an or elsewhere.

The Essentials of Wudhu’ (Fara'id al-Wudhu’)

Niyyah

It means the intention to perform an act with a motive of obedience and submission to the command of God Almighty. The schools concur that niyyah is essential for wudhu' and its time is at the commencement of Wudhu’'.The Hanafis say: The validity of salat does not depend upon a Wudhu’' performed with niyyah.

Hence if a person washes to cool or cleanse himself and it includes those pans of the body which are washed in Wudhu’ and then performs salat, his salat is valid, because the purpose of the Wudhu’ is to attain taharah and it has been achieved. But they exclude water which is mixed with water left over by a donkey or mixed with date-wine, considering niyyah necessary in these cases20.

Washing the Face

'Washing the face' means causing water to flow over it, and it is obligatory to do it once. Its extent lengthwise is from the place where the hair grow to the end of the chin. The Shafi'is observe: It is also obligatory to wash the area under the chin. Its extent breadth-wise, in the opinion of the lmamis and the Malikis, is the area covered between the thumb and the middle finger (when the open hand with the thumb pushed back is stretched across the face), while in the opinion of the other schools it is the area between the two earlobes.

The Imamiyyah consider it wajib to start washing the face down from the top and invalid to do its reverse. The four schools say: That which is wajib is to wash the face, irrespective of how it is done and from where it starts, though it is better to start from the top.

Washing of Hands

The Muslims concur that it is wajib to wash the hands along with the elbows once. The Imamiyyah consider it wajib to start from the elbows and consider its reverse batil (invalid). Similarly, they consider it wajib to wash the right hand before the left. The other schools observe: That which is wajib is to wash them, in any manner, though washing the right hand first and starting up from the fingers and washing towards the elbow is better.

Wiping the Head

The Hanbalis observe: It is wajib to wipe the whole head and the ears. In their opinion washing suffices in place of wiping, provided the hand is passed over the head. The Malikis say: It is wajib to wipe the whole head except the ears.

The Hanafis regard as wajib the wiping of one-fourth of the head. It also suffices if the head is dipped in water or water is poured over it.

The Shafi'is state: It is wajib to wipe a part of the head, even if little. Washing and sprinkling also suffice in place of wiping.

The Imamiyyah observe: It is wajib to wipe a part of the frontal part of the head and the wiping of a minimal area is sufficient. It is not valid to wash or sprinkle. They also consider it wajib that the wiping should be with the wetness of the earlier act of the Wudhu’ performed (i.e. the washing of hands).

Hence if hands are rinsed anew with water for wiping the Wudhu’ will become batil. The other four schools consider it wajib that new water be used21. As to wiping the turban ('imamah), the Hanbalis permit it, provided an end of the turban hangs down in the manner termed taht al-Hanak. The Hanafis, the Shafi'is and the Mailikis say: It is valid in the presence of an excuse, not ithout it.

The Imamis observe: It is in no manner valid to wipe the turban because of the words of the Qur'an وامسحوا برؤوسكم (and wipe your heads), and the turban is not-'head'

The Two Feet

The four schools state: It is wajib to wash the two feet along with the ankles once. The Imamiyyah observe: It is wajib to wipe the two feet with the wetness of the earlier act of Wudhu’ from the head of the toes to the ankles.

By 'ankle' is implied the raised bone of the foot It is valid to wipe the left foot before the right one in the opinion of all the schools, though it is against precaution (khilaf al-'ihtiyat’) in the view of the Imamiyyah and against preference (khilaf al-'awla) in the opinion of the other four ·schools.

The difference of opinion concerning the wiping or washing of the feet has its basis in the interpretation of the sixth verse of Surat al-Maidah:

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا قُمْتُمْ إِلَى الصَّلَاةِ فَاغْسِلُوا وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى الْمَرَافِقِ وَامْسَحُوا بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى الْكَعْبَيْنِ

O believers, when you stand up to pray, wash your faces, and your hands up to the elbows, and wipe your heads, and your feet up to the ankles (5:6)

Those interested in investigating the meaning of the verse should refer to al-Razi's exegesis of the Qur'an.

The four schools allow the wiping of shoes and socks instead of washing the feet, while the Imamis consider it as invalid in accordance with this statement of

Imam 'Ali ('a):

ما أبالي أمسح على الخفين أو على ظهر عير بالفلاة

I see no difference between the wiping of the shoes and wiping the back of a wild ass.

Sequence (al-Tartib)

It is in accordance with what the verse mentions: First the face, then the hands, and then the head, followed by the feet. This sequence is wajib and a condition for the validity of Wudhu’' in the opinion of the Imamis, Shafi'is and Hanbalis.

The Hanafis and the Malikis say: The observance of the sequence is not wajib and it is permissible to start with the feet and end with the face.

It is the observance of continuity in the washing of the different parts, i.e. to proceed immediately to the next act after having completed the earlier. The Imamis and the Hanbalis consider it wajib, the former adding a further condition that the part washed earlier should not dry before beginning washing the next. Hence if the whole of the part washed earlier dries the Wudhu’ will become batil and it will be wajib to start it anew.

The Hanafis and the Shafi'is say: Continuity is not obligatory, though it is reprehensible (makruh) to separate the washing of the different parts without any excuse, and on the presence of an excuse the karahah disappears.

The Malikis observe: The observance of continuity is wajib only when the person performing Wudhu’ is conscious of it and when no unforeseen incident takes place (e.g. spilling of the water he had brought for performing Wudhu’). Hence if he washes the face and forgets to wash the hands, or when he lacks the amount of water he believes to be necessary for taharah, he may complete the Wudhu’ from where he had left off, even if a period of time has passed.

Conditions of Wudhu’

Wudhu’' has certain conditions. Among them are: The water used should be mutlaq and tahir and must not have been used for removing khabath or Hadath, as per the details given while discussing water. There should be no hindrance such as illness in the way of using water or any urgent need for it.

Moreover, the parts of the body involved in Wudhu’ should be tahir and without a covering that might prevent water from reaching the skin. Also there should be sufficient time. The last condition will be dealt with in detail in the chapter on tayammum. All or most of these conditions are accepted by all the schools.

The Imamiyyah further consider it necessary that the water and the vessel used for Wudhu’ should not have been usurped, and the place where Wudhu’ is performed and where its water falls should be legitimate and not encroached land. If either of these two conditions does not exist, the Wudhu’ will be batil. In the view of the other schools the Wudhu’ will be valid though the performer of such a Wudhu’ will have sinned22.

Mustahabbat of Wudhu’

The number of acts recommended (mustahabb) in Wudhu’ is very large. They include starting by washing the hands, rinsing the mouth and drawing water into the nose. The Hanbalis consider the last two wajib. Wiping the ears is also among them, though the Hanbalis consider it wajib as well and the Imamis impermissible. Brushing the teeth and facing the qiblah while performing Wudhu’ is recommended and so is the reciting of traditional prayers. It also includes, in the opinion of the four schools, the washing of the face and hands twice and thrice.

The Imamis observe: Washing once is wajib, twice mustahabb, and thrice bidah (heretical) and the person doing so is a sinner if he performs it as a religious duty. But if he does not, there is no sin upon him, although the Wudhu’ will become batil on his wiping (the head) with this water23. There are many other recommended acts which are mentioned in voluminous books.

Doubt Regarding Taharah and Hadath

If a person certain of having been tahir doubts whether a hadath has occurred, he remains tahir. But if a person certain of hadath having occurred doubts having achieved tahirah later, his hadath shall remain. That is, he shall act in accordance with his earlier certainty and brush aside the subsequent doubt. This is based on the following tradition.

لا تنقض اليقين أبدا بالشك، ولكن تنقضه بيقين مثله

A condition of certainty is never invalidated by a doubt, but it can be invalidated by a certainty resembling it.

This principle has not been disregarded by anyone except the Mailikis, who say: If a person is certain of having been tahir and doubts later about the occurrence of hadath, he is considered tahir. But they do not differentiate between the two situations.

If both taharah and hadath have occurred and it is not known which of the two was subsequent so as to be made the basis, the Hanafis consider the person in such a situation tahir while the Imami authorities consider his hadath to prevail.

The Shafi'is and the Hanbalis observe: The opposite of the earlier condition will be accepted. Hence if he possessed taharah earlier he will now be considered in the condition of hadath and vice versa.

There is a fourth view which takes the condition prior to the occurrence of the taharah and hadath by denying the effect of both, because both possibilities being equal are nullified by the conflict, leaving the prior condition to be relied upon. That which is nearer to caution in this matter of ritual is always to renew taharah irrespective of whether the prior condition is known or unknown.

The Imamis and the Hanbalis say: When a person performing Wudhu’ doubts whether he has washed a particular part or wiped his head, if the doubt occurs while performing the Wudhu’ he will repeat the doubtful part and complete rest of the Wudhu’. But if the doubt occurs after the completion of Wudhu’ it will not be heeded, because it is a doubt which has occurred in an 'ibadah after its completion.

Al-'Allamah al-Hilli has narrated in al.-Tadhkirah from some Shafi'is that they do not differentiate between a doubt occurring during Wudhu’ and one occurring after its completion. They consider it wajib to restart from the place of doubt and to complete the Wudhu’ in both the situations.

The Hanafis observe: Every part of the Wudhu’ will be viewed separately. Hence if there occurs a doubt concerning a particular part before moving on to the next it will be repeated and not otherwise. For example, if he doubts having washed his face before starting washing his hands, he will restart from the face, and if he has started washing the hands he will carry on without heeding the doubt

All the schools concur that the doubt of a chronically uncertain person (kathir al-shakk) is not a valid doubt; i.e. his doubt has no value and it is wajib for him to carry on without heeding it, whatever the circumstances.

- 1. Ibn Qudamah, al-Mughni, vol. 1, p. 19

- 2. Ibn Qudamah in al-Mughni, vol. 1, p. 22, 3rd ed., and Ibn 'Abidin, vol. 1, p. 140, printed by al-Maymaniyyah

- 3. p. 32, 1354 H. ed

- 4. p. 37, Istanbul

- 5. vol. 1, p. 12

- 6. The Hanbalis observe: Al-ma ‘al-kathir does become najis on contact, provided the najasah is not urine or excrement. On contact with the two it will become najis, irrespective of whether its qualities have changed or not, unless it happens to be like those puddles visible on the way to Makkah (Ibo Qudamah, al-Mughni, vol. 1).

- 7. Apart from these, there are other definitions of al-ma ' al-kthir which have been omitted. Among them are those which state that al-kathir is forty qullah s, 2 pails (dalw), and 40 pails.

- 8. vol. 1, p. 130, printed by al-Maymaniyyah

- 9. lbn 'Abidin, vol. 1, p. 131

- 10. Sharh al-Muhadhdhab, vol. I, p. 136

- 11. Ibn 'Abidin, vol. 1, p. 131

- 12. Ibn 'Abidin, vol. 1, p. 156

- 13. Ibn Qudfunah, al-Mughni, vol. 1, p. 47, 3rd ed

- 14. al-Fiqh 'ala al-madhahib al-'arba'ah, vol. I, bahth qada' al-Hajah

- 15. al-Fiqh 'ala al-madhaib al-'arba'ah, vol. 1, mabhath izalat al-najasah

- 16. lbn 'Abidin, vol. 1, p. 119

- 17. lbn 'Abidin, vol. 1, p. 215

- 18. al-Shi'rani, al-Mizia, mabhath asbab al-hadath

- 19. Ibn Rushd, al-Bidayah wa al-nihayah, mabhath nawiqid al-Wudhu’

- 20. lbn 'Abidin, vol. 1, p. 76

- 21. lbn Qudamah, al-Mughni, vol. 1, fast mash al-ra's and al-'Allamah al-Hilli, al-Tadhkirah

- 22. Ibn 'Abidin, vol. 1 p. 128, and Sharh al-Muhadhdhab, vol. 1, p. 251

- 23. Aqa Ridla al-Hamadani's Misbah al-faqih

Ghusl

A ghusl (ritual bath) is required after the following different states of ritual impurity:

1. Major ritual impurity, as caused, e.g., by sexual intercourse (janizbah).

2. Menstruation (hayd).

3. Childbirth (nifas).

4. Death (mawt).

These four kinds of ghusl are recognized by all the schools. The Hanbalis add a fifth to this list: the ghusl of a non-Muslim (kafir) on his embracing Islam.

The Shafi'i and the Imami schools observe: If a kafir embraces Islam while being in a state of janabah, he will be required to perform the ghusl of janabah, not for embracing Islam; but if he is not in a state of janabah, he will have no obligatory (wajib) ghusl to perform.

The Hanafis say: No ghusl will be wajib upon him (on embracing Islam), irrespective of whether he is in a state of janabah or not1.

The Imamiyyah add to the above four ritual baths two more:

1. Ghusl al-mustahadah (i.e. the bath required of a woman at the end of her periods when she has intermittent discharge of blood).

2. The ritual bath after touching a corpse.

They consider it wajib for a person who has touched a corpse after it has turned cold and before it has been given a ritual bath, to perform a bath (more details will follow). From what has been mentioned it becomes clear that the number of obligatory baths are four in the opinion of the Hanafis and the Shafi'is, five in the opinion of the Hanbalis and the Malikis, and six in the opinion of the Imamis.

Ghusl al-Janabah

The state of janabah, which makes a ghusl obligatory, occurs in two situations.

1. On the discharge of semen, whether in sleep or the waking state. The Imami and the Shafi'i schools say:

The discharge of semen makes the ghusl wajib, regardless of whether one is sexually aroused or not. The Hanafis, the Malikis, and the Hanbalis observe: Ghusl is not wajib unless the discharge is accompanied with pleasure.

Hence if the discharge is due to a stroke, or cold or disease, and without sexual arousal, no bath is required. But if the seminal secretions are released internally without coming out of the body, ghusl is not wajib except in the opinion of the Hanbalis.

A Subsidiary Issue

If a person on waking up finds wetness in his cloth and is unable to ascertain whether it is semen or madhi, the Hanafis state that ghusl is wajib. The Shafi'i and Imami schools say: It is not wajib because the pre-existence of taharah is certain while the occurrence of hadath is doubtful. The Hanbalis observe: if he has seen something before sleeping which had excited him or thought about it, ghusl will not be wajib; and if the sleep was not preceded by any cause entailing such excitement, ghusl will become wajib on the presence of any dubious wetness.

2. The insertion of the glans (the part of the male organ covered by foreskin prior to circumcision) into the vagina or anus. The schools concur that the mere insertion of the glans makes ghusl wajib, even if no emission occurs, though they differ regarding the conditions, whether the sole insertion necessitate ghusl irrespective of its mode or if only a particular manner of insertion requires ghusl.

The Hanafis consider ghusl wajib on the fulfillment of the following conditions:

i. Puberty (bulugh): Hence if only one of the partners has attained puberty the ghusl will be wajib only on the one who has attained puberty. If both of them have not attained puberty, ghusl is not wajib on either.

ii. There should be no thick sheath preventing the warmth of the locale from being felt.

iii. The person with the passive role should be a living human being. Hence if it is an animal or a corpse, ghusl is not wajib.

The Imami and the Shafi'i schools say: The insertion of the glans suffices for making ghusl wajib, irrespective of whether the person has attained puberty or not, is the active or the passive partner, or if there exists a sheath or not, whether it is by choice or under duress, and whether the passive participant is alive or dead, a human being or an animal.

The Hanbalis and the Malikis observe: Ghusl is wajib on both the partners if a sheath preventing the sensation of pleasure from being felt is not used, regardless of whether the passive participant is a human being or an animal and dead or alive.

As to puberty, the Malikis state: Ghusl is wajib upon the active partner if he is a mukallaf and the passive participant is capable of having intercourse. It is wajib upon the passive partner if the active partner is an adult. Hence, if a boy has intercourse with a woman, ghusl will not be wajib upon her if she does not have an orgasm. The Hanbalis further stipulate that the male should not be less than ten years and the female not less than nine.

Acts Whose Validity Depends Upon Ghusl al-Janabah

All those acts which are dependent (for their validity or permissibility) upon Wudhu’ are also dependent upon ghusl al.-janabah, such as salat, tawaf and touching the script of the Qur'an. To this is added halting in a mosque, with all the schools concurring that it is not permissible for a junub person to remain in a mosque, though they differ regarding the permissibility of his passing through it, such as when he enters from one door and leaves through another.

The Malikis and the Hanafi's say: It is not permissible unless necessary.

According to the Shafi'is and the Hanbalis, passing is permissible though remaining is not.

The lmamiyyah observe: It is not permissible (for a junub person) either to remain or pass through Masjid al-Haram and al-Masjid al-Rasul; but he may pass through and not remain, in other mosques, in accordance with verse, 43 of the Surat al.-Nisa'

ولا جنبا إلا عباري سبيل

i.e., junub persons should not enter the place- of worship in mosques except as passerby. The Imamis exclude the above-mentioned two mosques on the basis of particular proofs.

As to the reciting of the Qur'an, the Mailikis state: It is forbidden for a junub person to recite anything from the Qur'an except a little for the sake of protection or citing it as a proof. What the Hanbalis observe is close to this view.

The Hanafis say: It is not valid except where the junub person is a teacher of Qur'an and he instructs by pronouncing each word separately. The Shafi'is consider it Haram to even recite a single word except when it is with the intention of remembrance, such as saying the tasmiyah

بسم الله الرحمن الرحيم

before meals.

The imamiyyah observe: It is not Haram for a junub person to recite the Qur'an except the four surahs called al-'azaim al-'arba'ah, which are lqra', al-Najm, Ha' Mim, Sajdah and Alif Lam Mim Tanzil; reciting a part of them is also Haram. Apart from these surahs, its recital is permissible, though if it exceeds seven verses it is considered makruh (reprehensible), and the karahah (reprehensibility) is aggravated if it exceeds 70 verses.

The lmamiyyah have added (to things dependent upon ghusl al-janabah) fasting during Ramadan and its qada'; they observe: The fast is not valid if a person remains junub, intentionally or forgetfully, at dawn. But if he sleeps during the day or at night and wakes up in the morning to find that he had an emission during sleep his fast remains valid. The Imamiyyah are alone among the schools in holding this view.

The Essentials of Ghusl al-Janabah

That which is wajib in a Wudhu’ is also wajib in ghusl al-janabah-such as that the water used should be talhir and mutlaq, the prior taharah of the body (from khabath), and the absence of anything on the body that may prevent water from reaching the skin, as already mentioned while discussing Wudhu’'. Niyyah is also wajib, except in the opinion of the Hanafis who do not consider it among the conditions for the validity of ghusl.

The four Sunni schools do not require any particular manner of performing the ghusl and consider it sufficient that it should include the whole body in any possible manner, irrespective of whether one begins from the top or the bottom. The Hanafis add that rinsing the mouth and drawing water into the nose is also wajib. They also say: It is mustahabb to start with the head, washing next the right half of the body and then the left half.

The Shafi'i and the Maliki schools observe: It is mustahabb to start with the upper parts of the body before moving to the lower pans, except the private parts, which it is mustahabb to wash first.

According to the Hanbalis, washing the right half before the left is mustahabb.

The Imamiyyah recognize two forms of ghusl al-janabah : tartib (in order) and irtimas (by immersion). In the tartib form, one pours water on himself. Here they consider it wajib that the start should be made with the head, followed by the right half and then the left. If he breaks this order by washing first that which is to come later in the order, the ghusl would be invalid. In the irtimas form one submerges the whole body under water all at once, and if any part of the body remains unsubmerged it will not suffice.

In the opinion of the Imamiyyah ghusl al-janabah dispenses the need for Wudhu’; they observe: Every ghusl requires Wudhu’ except ghusl al-janabah. The other four schools do not differentiate between ghusl al-janabah and other baths, in that none of them suffices where Wudhu’ is a requirement.

Menstruation (al-Hayd)

Lexically Hayd means 'flood' and in the terminology of the legists it is the periodic blood discharge experienced by women during specific days. Its effect is abstention from 'ibadah and termination of the period of 'iddah of a divorcee (if it is the third mense after the divorce). It is usually black or red, thick and warm, and comes out in spurts, though its qualities may differ from those mentioned depending upon constitution.

The Menstruating Age

All the schools concur that any discharge that occurs before a girl reaches the age of 9 years cannot possibly be menstrual; it is due to disease or injury. The same is true of the discharge of a woman who has reached the age of menopause. The schools differ concerning the age of menopause. The Hanbalis consider it to be 50 years, the Hanafis as 55, and the Malikis as 70.

The Shafi'is observe: As long as a woman is alive she can have menses, though generally it ceases at the age of 62 years.

The Imamiyyah say: The age of menopause for a non-Qurayshi woman and one whose being Qurayshi is doubtful is 50 years, and for a Qurayshi woman 60 years.

The Period of Menstruation

The Hanafis and the Imamis state: The minimum period of menstruation is three days and the maximum ten. Hence any discharge that does not last up to three days or exceeds ten days is not considered hayd.

The Hanbalis and the Shafi'is observe: The minimum period is one day and night and the maximum 15 days.

According to the Malikis, its maximum period for a non-pregnant woman is 15 days. They do not specify any minimum period.

The Imamis say: The minimum period between two menstruations is the maximum period of hayd, i.e. 10 days.

A Subsidiary issue

The schools differ concerning Hayd during pregnancy, as to whether any discharge of blood during it can be considered Hayd. The Shafi'i, Maliki and most Imami legists observe: Hayd can accompany pregnancy. The Hanafis, the Hanbalis and al-Shaykh al-Mufid from among the Imamiyyah say: Hayd can never occur during pregnancy.

Rules Applicable to a Ha’id

All that which is forbidden for a junub person is also haram for a Hayd (a menstruating woman), such as touching the script of the Qur'an, staying in a mosque, etc. Salat (prayer) and Sawm (fast) are not required of her during this period, though she will have to perform the qada' of the sawm of the month of Ramadan.. The qada of Salat is not required of her in accordance with the ahadith and for saving her from the strain of performing the large number of daily prayers omitted.

It is forbidden to divorce a Hayd; though in the opinion of the four Sunni schools, if given it is valid, although the divorcer will be considered as having sinned. Such a divorce is void in the opinion of the Imamiyyah if the divorcer has consummated the marriage, or is not travelling, or if the divorcee is not pregnant. Thus the divorce of a Hayd who is pregnant, or whose marriage has not been consummated, or whose husband is away from home, is valid. This has been discussed in detail in the chapter on divorce.

All the schools concur that ghusl al-hayd does not suffice for Wudhu’ and the Wudhu’ of a Hayd prior to ghusl does not remove her hadath There is also consensus regarding it being haram to have sexual intercourse with her during hayd. As to any other kind of sexual contact with her between her navel and knees, the lmamis and the Hanbalis say: It is permissible unconditionally, regardless of there being any covering in between or not.

The preponderant (mashhur) Maliki opinion is that it is not permissible even if there is a covering in between. The Hanafis and the Shafi'is say: It is haram without a covering and permissible with it.

Most lmami legists observe: If a person overcome by sexual desire has intercourse with his ha’id wife, he must atone by giving a dinar in charity if the intercourse occurs during the initial days of the hayd , a half dinar if in the middle of this period, and a quarter if in its last days.

The Shafi'is and the Malikis say: It is mustahabb and not wajib to give charity. As to the woman, there is no atonement for her in the opinion of all the schools, though she will be considered a sinner if she is willing and co-operative.

The Manner of the Ghusl

The ghusl al.-hayd is exactly like ghusl al-janabah in that the water used should be tahir and mutlaq, the body should be tahir, there should be nothing preventing the water from reaching the skin, the niyyah should have been made, and-according to the Imamis-the start should be made with the head, followed by the right and then the left half of the body. Also, according to the Imamis it is sufficient to submerge the entire body under water.

The other four schools consider it sufficient to wash the whole body in any manner, as already mentioned while discussing ghusl al-janabah.

Al-'Istihadah

Istihadah is a term used by the legists for the blood discharge which occurs outside the periods of hayd and nifas (postpartal discharge) and which cannot be considered hayd (such as a discharge occurring after the maximum period of hayd or within its minimum period). It is usually yellowish, cold, thin and flows out slowly as opposed to Hayd.

The Imamis regard a mustahadah (a woman undergoing istihadah) to be of three kinds:

I. Sughra (minor), when the blood stains the cotton without soaking it. Her duty is to perform Wudhu’ for every salat while changing the cotton. Thus she may not perform two salat with a single Wudhu’.

2. Wusta (medium), when the blood soaks the cotton without flowing from it. Her duty is to perform one ghusl every day before daybreak, change the cotton, and to perform Wudhu’ before every salat.

3. Kubra (major), when the blood flows after soaking the cotton. Her duty is to perform three ghusls daily, the first before the daybreak prayer, the second for the midday and afternoon prayers and the third for the sunset and night prayers. Most Imami legists observe: It is also wajib in this situation to perform Wudhu’ and change the cotton.

The other four schools do not recognize these categories, as they do not consider it obligatory for a mustahadah to perform ghusl. Al-Sayyid Sibiq in Fiqh al-sunnah (1957, p. 155) observes: "She has no wajib ghusl to perform for any salat or at any time except a single ghusl on the termination of hayd; that is, the ghusl is for Hayd and not for istihadah. This has been the opinion of the majority (jumhur) of scholars of the former and later generations.”

According to the four schools, those things which are prohibited during hayd, such as reading and touching the Qur'an, entering a mosque, itikaf , tawaf , sexual intercourse, etc.-as already mentioned in detail while discussing the acts prohibited for one in the state of major impurity-are not prohibited during istihadah2.

The Imamiyyah say: The 'minor' type of mustahdha is considered as being in a state of minor ritual impurity. Hence nothing that requires a Wudhu’ is permissible for her unless she performs Wudhu’. The 'medium' and 'major' types are regarded as being in a state of major impurity.

Therefore, they are prohibited from everything requiring a ghusl. They are like a haid as long as they have not performed what has been considered wajib for them. Once they have performed this wajib, they are considered tahir and it becomes valid for them to perform salat, enter a mosque, perform tawaf and have sexual intercourse. The Imamis regard the manner of performing ghusal-'istihadah to be exactly similar to the mode of ghusl al-hayd.

Nifas

The Imamis and the Malikis state: The nifas blood is a uterine discharge that occurs during or after childbirth, not before it.

The Hanbalis say: It is a discharge which occurs during or after parturition or up to two or three days before it, along with signs of labour.

According to the Shfai'is, it occurs only after parturition and not during or before it.

The Hanafis observe: It is a postpartal discharge. In the opinion of the Shafi'is, Hanafis and Malikis, ghusl is wajib upon a woman after giving birth, even if she has not had nifas; the Imamis and Hanbalis do not consider it wajib.

All the schools concur that there is no minimum period of nifas, though the maximum period is 10 days as per the preponderant Imami view, 40 days in the opinion of the Hanbalis and the
Hanafis, and 60 days in the opinion of the Shafi'is and the Malikis.

In a Caesarian delivery the woman will not have nifas, although this form of birth will bring to end the 'iddah of a divorcee.

Nifas is like Hayd in that salat and sawm are not permissible, the qada of the latter is wajib, sexual intercourse, entering or making a halt in a mosque, touching the script of the Qur'an is haram, and so on.

The manner and conditions for this ghusl are exactly like those of ghusl al-Janaba.

Touching a Corpse (Mass al-mayyit)

If a person touches a human corpse is it obligatory for him to perform a Wudhu’ or a ghusl or is neither obligatory upon him?

The four schools observe: Touching a dead body does not result either in a minor or major hadath; i.e. neither Wudhu’ nor ghusl is required. But it is mustahabb for a person who has given bath to a dead body and not just touched it, to perform ghusl.

Most Imamis say: Ghusl becomes wajib on touching a corpse after it has turned cold and before it is given the bath provided in the Shari'ah. Hence if it is touched before turning cold and immediately after death or after it has been given ghusl, such a touch will not require anything.

The Imamis do not differentiate between the corpse of a Muslim and a non-Muslim in relation to the ghusl becoming wajib to touch. Similarly they do not differentiate between the age of the dead body, whether it is of an adult, or a child or even a four-month foetus. There is also no difference between a touch prompted by necessity or by choice.

Further, the person touching may be sane or insane, an adult or a child. Hence the ghusl will become wajib on an insane person on attaining sanity and on a child on attaining puberty. The Imamis even require a person who touches an amputated part of a dead or living person to perform ghusl if it contains a bone.

Accordingly, if he touches an amputated finger of a living person, ghusl will become wajib. Also, if a tooth separated from a corpse is touched. But if a separated tooth of a living person is touched ghusl will be wajib only if it has flesh attached to it and not otherwise.

Though the Imamis require ghusl on touching a corpse, they regard such a person as being in minor hadat, i.e. he is prohibited from only those acts which require a Wudhu’ and not those which require ghusl. There, it is valid for him to enter a mosque and remain in it, and to recite the Qur'an.

The ghusl required on touching a corpse is performed like ghusl al-janabah.

The Rules Pertaining to a Dead Body

These will be discussed in the following sections:

1. Al-Ihtidar

Al-Ihtidar is to make a dying person face the qiblah. The schools differ regarding the manner in which this is to be done. The Imamis and the Shafi'is observe: He will be made to lie on his back with the soles of his feet facing the qiblah, so that if he sits up he will be facing it.

The Malikis, the Hanbalis and the Hanafis state: He will be made to recline on his right side with his face towards the qiblah, in the same manner as he would be buried.

As the schools differ in the manner of turning the dying man to face the qiblah, they also differ regarding its being obligatory. The four schools and a group from among the Imamis consider it mustahabb and not wajib, though the preponderant Imami view is that it is wajib kifa'i (explained below) like giving ghusl to the dead and their burial. It is observed in the Imami work Misbah al-faqih· The wujub of making those approaching death to face the qiblah includes both adults and children.

It should be noted that all those things which will be mentioned as wajib with reference to a dead body are all wajib kifai, i.e. if some persons perform it, others will be relieved of the duty of performing it, but if no one performs it, they will all be responsible and liable for its neglect.

2. The Ghusl of a Corpse

The schools concur that a shahid, i.e. one who is martyred in battle with infidels, will not be given ghusl.3 The schools, excepting the Shafi'is, also concur that it is not permissible to give ghusl to a non-Muslim; the Shafi'is consider it permissible. There is also consensus that a foetus of less than four months does not require ghusl.

They differ where the foetus has completed four months. The Hanbalis and the Imamis observe: It is wajib to give it ghusl. The Hanafis observe: If it is born alive and then dies or is still-born in a fully developed state, its ghusl is wajib.

According to the Malikis, giving ghusl will not be wajib unless a similar baby is considered by knowledgeable persons as capable of survival.

The Shafi'is state: If it is born after six months ghusl will be given, and even if born before six months if all pans of its body have fully developed. But if it is not born fully developed but is known to have been alive, then ghusl will be given but not otherwise.

A Subsidiary Issue

If a part of a corpse is destroyed by fire or disease or is eaten by an animal, will the ghusl of the rest be wajib?

The Hnafis say: Ghusl will not be wajib unless most of the body or half of it with the head is present.

The Malikis consider ghusl to be wajib if two-thirds of the body is present.

The Hanbalis and the Shafi'is observe: Ghusl will be given even if a small part of the body remains.

The Imamis state: If the part of the dead body found includes the chest or a part of it containing the heart, all the rules applicable to a complete corpse will apply to it and it will be given ghusl and kafan (shroud) and prayed upon. But if the part found does not contain the chest or a part of it, it would be given ghusl if it contains a bone and then buried by wrapping it in a piece of cloth. And if it does not contain a bone, it will be wrapped in a piece of cloth and buried without a ghusl.

The Person Giving Ghusl (Ghasil)

It is wajib that the ghalsil and the maghsul (the dead person being given ghusl) belong to the same sex: men should give ghusl to men and women to women.

The Imami, Shafi'i, Mfiliki and Hanbali schools consider it permissible for either husband and wife to give ghusl to the other on death.

The Hanafis say: It is not permissible for husband to give ghusl to his wife because her death dissolves the marital bond. The wife, however, can give ghusl to her dead husband because she is in his 'iddah; i.e. the marital bond exists in relation to her while it is non-existent in relation to the husband.

If she dies after his divorcing her and the divorce is irrevocable, there is consensus that neither of them can give ghusl to the other.

But if it is a revocable divorce, the Imamis allow either of them to give ghusl to the other. The Hanafis and the Hanbalis observe: Such a wife can give ghusl to the dead husband but not vice versa. The Malikis and the Shafi'is state: Neither of them may give ghusl to the other. Moreover, they do nof differentiate between a revocable and an irrevocable divorce.

The Imamis allow a woman to give ghusl to a boy of under three years, and allow a man to give ghusl to a girl of less than three years. The Hanafis permit up to four years and the Hanbalis up to seven years. The Malikis observe: A woman can give ghusl to a boy up to the age of eight years and a man can give ghusl to a girl of two years and eight months.

The Manner of Bathing the Dead

The Imamis say: It is wajib that the dead body be washed thrice; at first with water containing a little of sidr, then a second time with water containing a bit of camphor, and a third time with plain water. The ghasil should start by first washing the head, then the right half of the dead body and then the left.

The four Sunni schools observe: Washing only once with plain water is wajib, and the two additional washings are mustahabb. There is no specific manner of giving the ghusl and it is valid in any manner it takes place, just like ghusl al-janabah. The use of sidr and camphor is not wajib in the opinion; rather, it is mustahabb if camphor or a similar perfume is added to the water used for the last wash.

Niyyah, the plainness (itlaq) and ritual purity (taharah) of the water used, the removal of najasah from the dead body, and the removal of anything preventing water from reaching the skin, are indispensable for the validity of the ghusl.

The Imamis state: It is makruh to give ghusl to a dead body with hot water. The Hanafis say: Hot water is better. The Hanbali, Maliki and Shfafi'i schools observe: Cold water is mustahabb.

All the schools concur that camphor is not to be added to water used for the ghusl of a person that dies in the state of ihram of hajj. Similarly, they are of one opinion that in the state of ihram one must abstain from all kinds of perfumes.

If ghusl is not possible due to the non-availability of water, or the body being burnt or affected by a disease in such a manner that· it might cause the flesh to fall apart on being washed, there is a consensus that tayammum would be resorted to in place of ghusl.

As to the method of the tayammum, it is like the tayammum performed by a living person. Details follow in the discussion on tayamnuun.. A group of Imami legists says: It is wajib to perform the tayammum thrice, the first in place of washing with water containing sidr, the second in place of water containing camphor, and the third in place of washing with plain water. But the authorities among them consider a single tayammum as sufficient.

Hunut

Hunut means rubbing the seven pans of a dead body which touch the ground while prostrating with camphor after ghusl; these are the forehead, the two palms, the knees, and the heads of the big toes of the feet. The Imamis alone among the schools consider hunut as wajib in this manner, and in this regard there is no difference between an adult and a child, even if an aborted foetus, nor between a male and a female, the only exception being a person in ihram of hajj. In addition to the seven locations, they regard the hunut of the nose as mustahabb.

Kafan (Shroud)

All the schools consider takfin (providing with kafan) of a dead body as wajib. The four Sunni schools observe: That which is wajib in takfin is a single piece of cloth covering the whole body, though the use of three pieces is mustahabb.

The Imamis state: The use of three pieces is wajib, not mustahabb; the first is called mi'zar and resembles a loinloth extending from the navel to the knees; the second is the qamis, which covers the body from the shoulders to the shanks; and the third, called izar, covers the whole body.

The kafan should possess all the qualities necessary irrespective of sex, for clothes worn while performing salat, such as their being tahir, mubah (lawfully owned), their not being made of silk, gold or the skin or fur of an animal which is not eaten, and other qualities which will be mentioned in their appropriate place.

The Imamis, the Shafi'is and the Hanafis consider the husband responsible for the kafan of his wife if he is capable of providing it. The Malikis and the Hanbalis say: It is not compulsory for a husband to provide the kafan of his wife even if she is indigent.

The amount necessary for the kafan and other expenses of burial is taken from the legacy of the deceased before the satisfaction of the claims of his debtors, the beneficiaries of his will, and his heirs, though not in preference over the share of the wife and the mortgage of a specific property.

The Death of an Indigent Person

The four schools and a group from among the Imamis observe: If the deceased does not leave behind any wealth, his kafan will have to be provided by the person who was supposed to maintain him when he was alive. But if he had no supporter, or had but he too is indigent, the kafan will be provided from the public treasury or from zakat if possible. Otherwise it will be the duty of all Muslims capable of providing it to do so.

A group of Imami legists say: If a person dies a pauper and there exists no one who maintained him while he was alive, it is not wajib upon anyone to provide him with a kafan, because that which is wajib is the performance of an act and not the spending of wealth. Therefore spending wealth is mustahabb on the basis of charity, and in the absence of a charitable person he will be buried without a kafan.

The Salat Performed Over a Shahid

The schools concur that it is wajib to perform salat over Muslims and their children on death, irrespective of their sect and school of fiqh. They also concur that the salat is not valid unless performed after the dead body has been given ghusl and kafan, and that a shahid is not given ghusl and kafan, but is buried in his clothes.

The Shafi'is allow the option between burying him in his own clothes and removing them and giving him a kafan. The schools differ regarding offering salat over a martyr. The Shafi'is, the Malikis and thee Hanbalis observe: Salat will not be offered over him.

The Imamis and the Hanafis state: It is wajib to offer salat over him in the same manner as over the other dead.

The Salat Offered for Children

The schools differ regarding salat over a baby; the Shafi'is and the Malikis say: salat will be performed over it if it had cried on being born; i.e. the rule applicable to salat is the one applied for establishing inheritance.

The Hanbalis and the Hanafis consider salat wajib over it if it has completed four months in the womb. The Imami view is that salat is not wajib over the bodies of Muslim babies unless they have reached the age of six years, though it is mustahabb over babies below it.

Funeral Salat in Absentia

The Imami, Maliki and Hanafi schools observe: In no situation is salat in absentia valid. They argue that if it had been performed by the Prophet (S) and the sababah, it would have become widely known and a tawatur would exist; moreover, facing the qiblah with the dead body's face turned towards it and the presence of the musalli (the person performing salat) at the body while performing the salat are among its necessary conditions.

The Hanbalis and the Shafis say: Salat in absentia is valid. The basis of their argument is that the Prophet (S) performed it on hearing the news of Najashi's death. This argument has been countered by observing that this act was particular to the Prophet(S) or was particularly performed in the case of Najashi, and this explains why it was not repeated by the Prophet (S) when he heard of the death of prominent Sababah who died away from him (,s-).

The Awliya' of the Deceased

The Imamis state: The validity of the acts-whether ghusl, kafan, hunut or ,salat -wajib for preparing the corpse for burial depends upon the permission of the wali of the deceased. Any of these acts performed without the permission of the wali are void and their repetition is wajib.

The wali may carry out these himself or allow others to perform them. But where he neither carries them out himself nor permits others to perform them, his permission has no effect.

The Imamis give precedence to the husband in wilayah as regards the wife over all other relatives, and the awliya' besides the husband stand in the order applicable to inheritance. Hence the first category, which consists of her father and sons, has precedence over the second category, which includes her grandfather and brothers, which in turn has precedence over the third category to which paternal and maternal uncles belong.

The father is given priority over all others in the first category and the grandfather over the brothers in the second. Where no male exists in a category, the right to wilayah will belong to the female relatives. Where there are several brothers or paternal and maternal uncles, the funeral rites will depend upon the permission of all of them.

The other four schools have made no mention of the wali while discussing the ghusl and kafan, and this proves that his permission has no significance in their opinion for the performance of these rites. They do say who enjoys priority and has a better right to offer salat over the dead body.

The Hanafis observe: Those who have priority are: the ruler, then his representative, then the qadi, then the police chief, then the deceased person's imam in his life if he is better than the wali of the deceased, then the wali, and then as per the order applicable to authority with respect to marital affairs.

The Shafi'is say: The father of the deceased will come first, followed by the son, then the full brother, then the brother on father's side, and so on in the order of inheritance.

The Malikis state: Foremost is the person whom the deceased has appointed in his will for performing salat over his body seeking the barakah of the former's righteousness. After him comes the caliph, then the son, the grandson, the father, the brother, the brother's son, the grandfather, the paternal uncle, etc., in the descending order.

The Hanbalis give priority to the adil executor of the will, followed by the ruler, his representative, the father, the son, and so on in the order of inheritance4.

Uncertainty Concerning a Corpse

When a body is found and it is not known whether it belongs to a Muslim or a non-Muslim, if it is found in a Muslim locality it will be considered a Muslim's body; otherwise anyone who sees it has no obligation, for there is a doubt concerning the obligation itself.

Where the bodies of Muslims and non-Muslims are mixed and differentiating them is not possible, the Imamis, Hanbalis and Shafi'is observe: Salat will be performed on all of them with a conditional ni.yyah of "if he is a Muslim." The Hanafis say: The majority will be taken into consideration, and if the majority of bodies belong to Muslims, salat will be performed, not otherwise.

The Manner of the Samt

The dead body will be laid on its back and the musalli will stand not far behind it5 facing the qiblah with the head of the body to his right. There should be no intervening barrier in the form of a wall and the like and the musalli should be standing unless there exists a legitimate excuse. Then he will make niyyah and say takbir four times.

The Malikis observe: A prayer (du'a') is wajib after each of the four takbirat and the least that the musalli must say is

اللهم أغفر لهذا الميت

(O God, pardon this deceased). If the deceased is-a- child, the du'a' will be made for the parents. Salam will be said after the fourth takbir and the alli will not raise his hands except in the first takbir. Accordingly, the following form will suffice:

الله أكبر اللهم أغفر لهذا الميت، الله أكبر. اللهم أرحمه وارحمنا، الله أكبر. اللهم تب عليه وعلينا، الله أكبر. اللهم أسكنه فسيح جنانك، السلام عليكم.

The Hanafis say: God will be praised after the first takbir, salawat on the Prophet (S) will be said after the second, du'a after the third, and salam after the fourth. The musalli will not lift his hands except in the first takbir. The following form is sufficient:

الله أكبر سبحان الله وله الحمد، الله أكبر. اللهم صل على محمد، الله أكبر. اللهم أرحم هذا الميت، الله أكبر. السلام عليكم ورحمة الله، السلام عليكم ورحمة الله.

The Shafi'is and the Hanbalis state: The surat al.-Fatihah will be recited after the first takbir, salawat on the Prophet (S) after the second, du'a after the third, and salam after the fourth. The musallli will lift his hands at every takbir. Hence the following form suffices:

الله أكبر ويقرأ الفاتحة، الله أكبر. اللهم صل على محمد، الله أكبر. اللهم أرحمنا وإياه، الله أكبر. السلام عليكم

According to the Imamis, five takbirat are obligatory in consonance with the number of daily obligatory prayers. The mussalli will recite the shahadatayn after the first takbir; salawat on the Prophet(S) after the second; du'a.' for the faithful, men and women, after the third; du'a.' for the deceased after the fourth; and end with the fifth without reciting anything after it. Lifting the hands at every takbir is mustahabb. The following is the minimum which is wajib:

الله أكبر أشهد أن لا إله إلا الله وأن محمدا رسول الله، الله أكبر. اللهم صل على محمد وآله، الله أكبر. اللهم أغفر للمؤمنين والمؤمنات، الله أكبر. اللهم أغفر لهذا الميت الله أكبر.

Our intention in mentioning these short forms was to show the minimum which is wajib, otherwise all the schools have lengthy prescribed prayers which are mentioned in their appropriate place.

The four schools require taharah and covering of the private parts while performing salat over the deceased, in the same manner as in the daily obligatory prayers. The Imamis say: Here taharah and covering of the private parts are not conditions for its validity, though they are mustahaabb. This is because salat over the deceased is not salat in the real sense; rather it is a du'a.', and hence, in their opinion, the imam (in this salat) does not recite anything on behalf of the ma'mum.

This also explains why the four schools consider four takbirat as wajib over the deceased while the Imamis regard five takbirat to be wajib. Al-'lmam Ja'far al-Sadiq (a) says: "God has made five salats obligatory, and has appointed a takbir for the deceased in the place of each salat." He also observes: "The Prophet (S) used to say five takbirat over all the dead, and when God prohibited him from praying for the hypocrites (munafiqun.) he (S) would say five takbirat over those who were not hypocrites and four over the hypocrites without praying for them."

The Place of the Salat

The Shafi'is observe: It is mustahabb to offer salat over the deceased in a mosque. The Hanafi's consider it makruh to do so. The Imamis and the Hanbalis consider it permissible provided there is no fear of contaminating the mosque.

Time of Salat over the Deceased

The Shafi'is and the Imamis state: The salat over the deceased can be performed at any time. The Maliki, Hanbali and Hanafi schools say: The salat may not be performed over it at sunrise, midday and sunset

The Burial

The schools concur that it is not permissible, except where necessary, to place the body on the surface of the ground and to raise a tomb over it without digging, even if it is placed in a coffin. It is wajib to place it in a pit, where it would be secure and which would keep its smell from spreading. They also concur that the body should be laid to rest on its right side with its face towards the qiblah and the head to the west and the feet to the east.6

The Malikis say: To lay the body to rest in this manner is mustahibb and not wajib.

The Imamis observe: A woman must be lowered into the grave by her husband or anyone from among her maharim (male relatives within prohibited degrees of marriage), or by other women; if none of these are present, then any righteous person may do it.

The Hanbalis and the Hanafiis state: The husband becomes a stranger after dissolution of the marital bond on death. In al-Wajiz, al-Ghazfili, a Shafi'i, observes: "Only a man may lower the body into the grave. Therefore, if the deceased is a woman, her husband or mahram may perform it, and in their absence her slaves, followed by two eunuchs, her relatives and then strangers." This implies that a male stranger is preferred over a woman.

Disposing a Corpse into the Sea

If a person dies on a ship far away from land, if it is possible to retain it for burial on land, retaining it will be wajib. But if there is a fear of decay, it will be given ghusl and kafan and salat will be performed over it and then it will be placed in a firm coffin or a barrel which can be capped and thrown into the sea.

If this is not possible, a piece of iron or a stone will be tied to it. It is obvious that the legists have dealt with this and similar issues because during those days there was no means of preserving the body from decay.

But today, when it is possible to place it in cold storage or use other means which save the dead body from mutilation and harm, to retain the body becomes wajib even if it is for a prolonged period of time.

Making the Grave at Level with the Ground

All the schools concur that the sunnah in respect of the grave is to make it at level with the ground, because the Prophet (S) did so while making the grave of his son, Ibrahim. This sunnah is accepted by the Imamis and the Shafi'is.

The Hanbalis, Hanafis and Malikis say: To make it raised is better, only because to level the grave has become the slogan of some religious groups!

Reopening the Grave

All the schools concur that it is haram to reopen the grave, irrespective of whether the deceased is an adult or a child, sane or insane, unless the body is known to have decomposed and turned into dust or there is cause to be concerned for the body, such as where the grave is in the way of a flood or at the bank of a river, or it has been buried in a usurped land either forcefully or due to ignorance or negligence and the owner refuses to give permission and take compensation, or if it has been wrapped in an impermissible kind of kafan, or when something of value belonging to the deceased or someone else has been buried along with the body.

The schools differ regarding reopening where the body has been buried without a ghusl or after a ghusl which is not valid in the Shari'ah. In this regard, the Hanafis and some Imamis observe: It is not valid because it is irreverent and may cause mutilation of the corpse. The Hanbalis, Shafi'is, Malikis and most Imami legists observe: It may be reopened and ghusl and salat will be performed for it provided there is no fear of its having decayed.

Some Imamis further add: It may also be reopened where the establishment of a claim or right is dependent upon the examination of the body.

- 1. Ibn Qudamah, al-Mughni, i, 207).

- 2. al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 1, mabath al-'istihadah

- 3. The Hanafis say: A martyr is someone who is killed unjustly, irrespective of whether it is in war or by a robber or dacoit. The requirement that they lay down for not giving him ghusl is that he should not be in a state of major Hadath at the time of death.

- 4. al-Fiqh 'ala al-madhahib al-'arba'ah, mabhath al-'ahaqq bi al-salat 'ala al-mayyit).

- 5. The Shafiis and the Malikis permit salat to be offered over a dead body while it is placed on the back of a beast of burden or held on the hands or shoulders of men.

- 6. The description that the dead body's head would point towards the west and his feet towards the east applies to Lebanon, the author's homeland. (Editor)

Al-Tayammum

Performing tayammum (as a substitute for Wudhu’) is justified under certain circumstances. It is performed in a particular manner and with specific substances and there are certain rules which are applicable to it.

Conditions in which Tayammum is Performed

The schools differ concerning the permissibility of tayammum by a healthy person who is not travelling, in the event of his not finding water (for Wudhu’). The question is, does the absence of water justify the performance of tayammum only in the state of journey or ill-health, or is the permissibility general and includes the state of health and non-travel?

Abu Hanifah observes: A healthy person who is not travelling will neither perform tayammum nor salat if he is unable to find water1. He cites verse 6 of Surat al-Ma'idah as the basis of this opinion:

وَإِنْ كُنْتُمْ مَرْضَىٰ أَوْ عَلَىٰ سَفَرٍ أَوْ جَاءَ أَحَدٌ مِنْكُمْ مِنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبًا

If you are sick or on a journey, or if any of you comes from the privy, or you have touched women, and you can find no water, then perform tayammum on wholesome dust....(5:6)

The verse (the Hanafis say) is explicit that the sole unavailability of water does not justify tayammum unless the person is sick or on a journey. Therefore, if tayammum is limited to a sick person and a traveller, a healthy person who is not travelling has no obligation to perform salat in this situation because he cannot acquire tahara.

The remaining schools concur that a person not possessing water will perform tayammum and offer salatt regardless of his being a traveller or not, and irrespective of his being healthy or sick. This is in consonance with the following mutwatir tradition accepted by all the schools:

إن الصعيد الطيب طهور للمسلم، وان لم يجد الماء عشر سنين.

Wholesome dust is surely a purifier for a Muslim even if he does not find water for ten years.

These schools omit the condition of travel mentioned in the verse since it also implies the usual non-availability of water during journeys in the past.

Apart from this, if the argument of Abu Hanifah be accepted, the position of a traveller and a sick person would be more taxing than that of a non-travelling healthy person, because salat will be wajib on the two and not on the latter.

The Shafi'is and the Hanbalis say: If water available is not sufficient for performing complete tahara, it is wajib to perform as much of it as is possible with water and to do tayammum for the remaining parts. Hence if he has water which is only sufficient for washing the face, he will wash the face and then resort to tayammum.

The other schools observe: The presence of insufficient water is equivalent to its absence, and nothing is wajib in such a situation except tayammum.

However, the issue of non-availability of water does not have that applicability in our times because water is available in sufficient quantity for all people and at all places, at home as well as during travel.

The reason the legists dealt in detail with the wujub of searching for water and the extent of effort to be made, and with the case when there is a danger to one's life, ions or honour from robbers and wild animals and the case where he finds a well without a bucket, and the case where he has to pay more than the usual price for it, etc., was that travellers used to face great difficulty in obtaining water.

Harm to Health

The schools concur that among the reasons justifying tayammum is the harm the use of water may do to one's health or the probability of such a harm. Anyone who fears falling ill, or fears that his illness would become more acute or prolonged or that its cure would become more difficult, can reason to tayammum for tahara instead of using water.

A Subsidiary issue

Where there is no time for using water (such as when a person wakes up in the morning and finds so little time left for the wajib salat that if he intends to procure water for fahiuah he would have to perform its qada after the appointed time while if he resorts to tayammum he would be able to perform it ada') is it wajib for such a person to perform tayammum or must he perform tahara with water?

The Malikis and the lmamis observe: He should perform salat by making tayammum, but must repeat the salat with Wudhu’.

The Shafi'is say: In no situation is tayammum permissible in the presence of water.

The Hanbalis differentiate between the states of journey and stay, observing: If such a situation arises during a journey, he must perform salat with tayammum without being required to repeat it, and if it arises during a state of non-travel, there will be no justification for tayammum.

The Hanafis state: Tayammum is permissible in such a situation for performing those supererogatory (nafilah) salats which have a specific time of performance, e.g. the sunnah salats after the noon and sunset prayer. But tayammum is not permissible for a wajib salat if water is available, even if there is insufficient time; rather, he will do wu4u' and perform the qada', and if he performs it with a tayammum during the appointed time, he will have to repeat it after the time has passed.

The Substance on which Tayammum is Performed

There is a consensus among the schools regarding the wujub of performing tayammum on 'wholesome dust' (al.-sa'id al-tahur) in consonance with the verse and the noble tradition

خلقت الأرض مسجدا وطهورا

(The earth has been created a place for performing prostration and as a purifier). Tayyib means 'pure', and 'pure' means that which has not come into contact with najiisah. The schools differ concerning the interpretation of the word 'sa'id'.

The Hanafis and a group of Imamis understand it to mean the ground surface and therefore permit tayammum on dust, and sand and rocks and prohibit it on minerals such as quicklime, salt, arsenic, etc.

The Shafi'is interpret it as soil (turiib) and sand and consider tayammum wajib on these two if they contain fine dust. They do not permit tayammum on stones.

The Hanbalis take it to mean only dust and hence tayammum is not valid in their opinion if performed on sand and stones. This is also the opinion of most Imami legists, though they allow it on sand and rocks in case of necessity.

The Malikis take the word sa'id rather liberally and include in its meaning dust, sand, rocks, snow and minerals provided they have not been moved from their place. But they exclude gold, silver and precious stones and do not permit tayamnuun on them under any condition.

The Manner of Performing Tayammum

The schools concur that tayamnuun is not valid without niyyah. Even the Hanafis observe: It is required in tayammum though not in wuu; and as they accept that tayammum removes hadath like Wudhu’ and ghusl, they allow the niyyah of removing hadath to be made for its performance just like the niyyah of permissibility of salat (istibahat al-salat).

The other schools state: Tayammum only permits hadath without removing it. Hence a person performing tayammum should make niyyah of permissibility of that which requires tahara and not niyyah of removal of hadath But an Imami legist says: The niyyah of removal of hadath is valid with the knowledge that tayammum does not remove it, because the niyyah of removal of hadath necessarily implies the niyyah of permissibility.

The best way of reconciling all these opinions for a person performing tayammum is that he make niyyah of seeking the nearness of God (qurbatan ila Allah) by obeying the command pertaining to tayammum, irrespective of whether this command pertains to it as such or arises from the command of salat or some other act which requires the performance of tayammum.

The schools, in the same way as they differ in interpreting the word sa'id, also differ in their interpretation of the words wajh (face) and aydi (hands) occurring in the verse.

The four Sunni schools and Ibn Babawayh, an Imami, say: By wajh is meant the whole face including the beard, and by yadayn, the hands and the wrists along with the elbows. Accordingly, the parts of the face and arms to be wiped in tayammum are exactly the same as (are washed) in wut/.ii'. Thus the hands will be struck twice (on that upon which tayammum is valid), and the first time the whole face will be wiped and the second time the two arms from the end of the fingers to the elbows.

The Malikis and the Hanbalis say: The wiping of hands is fard up to the wrist-bones, and sunnah up to the elbows.

The Imamis state: The word wajh is to be interpreted as 'part of the face because ba' in the verse فامسحوا بوجوهكم connotes the meaning of a part (tab'id) when prefixed to an object (maf'ul). And if the ba' does not signify a part, it will have to be considered superfluous because the verb imsahu is transitive by itself. The part of the face that must be wiped in their opinion is from the upper part of the forehead where the hair grow, to the upper part of the nose including the eye-brows.

They say: By yadayn is meant only the hands (kaffan); since the word yad in Arabic has various meanings and the most common of them in usage is kaff 2.

Accordingly, the manner of performing tayammum in the Imami school is by first striking on the earth with the palms and wiping the face from where the hairs grow to the upper part of the nose, then striking a second time and wiping the entire back of the right hand with the left palm and then the entire back of the left hand with the right palm.

The Imamis also consider sequence to be wajib; hence if the hands are wiped before the face, the tayammum becomes invalid. Similarly, it is necessary to start from the top and proceed downwards; doing the opposite would invalidate it. Most of them consider striking on the earth as wajib, so that if one only places his hands on it without striking, the tayammum becomes batil.

The Hanafis observe: If dust settles on his face and one places his hand on it and wipes it, he can do without striking the earth.

All the schools concur that the taharah of the parts of the body involved in tayammum is a necessary condition, irrespective of whether it is the wiping or the wiped part. The same applies to the substance on which tayammum is being performed.

They also concur that it is ntial to remove one's ring while performing tayammum and that just moving it, as in Wudhu’.', is not sufficient.

They differ concerning continuity; the Imamis and the Malikis require it between its different parts. Hence if there is a time gap between them which vitiates continuity the tayammum becomes invalid.

The Hanbalis say: Both continuity and sequence are wajib if the tayammum is for minor hadath, but none for major hadath The Shafi'is require sequence, not continuity. The Hanafis require neither sequence nor continuity.

The Rules of Tayammum

1. All the schools, except the Hanafi, concur that it is not valid to perform tayammum for a salat before its time has arrived. The Hanafis say: Tayammum is valid before the arrival of time.

The Imamis observe: If one performs tayammum before the time of salat for any other purpose for which tayammum is permissible and then the time of salat arrives while his tayammum is still intact, he may perform salat with that tayammum.

The Imamis and the Hanafis allow the performance of two salats with a single tayammum.

The Shafi'is and the Malikis say: It is not permissible to offer two obligatory (fard.) salats with a single tayammum. The Hanbalis allow them, both as ada and qada'.

2. After one performs tayammum in accordance with the Shari'ah, he will be like one who has performed tahara with water, and everything which is permissible for the latter will be permissible for him. The tayammum is broken by all those kinds of major and minor hadath which require renewal of Wudhu’' or ghusl, as well as on the disappearance of the excuse of unavailability of water or disease.

3. If water becomes available after the performance of tayammum but before beginning the salat, tayammum becomes invalid in the opinion of all the schools. If it becomes available while he is performing the salat, some lmamis say: If that happens before his first ruku', both the tayammum and salat become batil, and if after the ruku, he will complete the salat, which will be deemed valid.

The Shafi'is, Malikis and Hanbalis in one of the two opinions narrated by them, as well as some lmamis state: After saying the takbirat al-'ihriun, he will continue the salat without paying attention, and the salat will be valid because God Almighty says: ولا تبطلوا أعمالكم (And do not make your acts invalid). The Hanafis observe: Such a salat will be invalid. The schools concur that if the justification (for performing tayammum) disappears after the performance of the salat while its time is still there, one is not obliged to repeat the salat again.

If a person in state of janabah performs tayamnuun in place of ghusl and then a minor hadath occurs and there is water enough for only perfomring Wudhu’, will Wudhu’ be wajib along with the repetition of tayammum in place of ghusl.

The Malikis and most Imamis observe: He will perform tayamnuun in the place of ghusl.

The Hanafis, Shafi'is, Hanbalis and a group of Imamis state: He will perform Wudhu’ because the tayammum was in place of janabah and was broken by something other than janabah. Hence he will not become junub again unless the janabah recurs, and he will be considered as being affected only by the minor hadath.

The Hanbalis differ from all the other schools in their acceptance of tayammum for material najiisah present on the body3.

If both the ways of acquiring taha.rah (i.e. with water and tayamnum) are not possible (such as in the case of a person who is imprisoned in a place where there is neither water nor any substance on which tayamnuun is performed, or he is so ill that he can neither perform Wudhu’' nor tayamnuun and there is no one to help him in peforming them) will it be wajib to perform salat without taharah? Furthher, presuming that the salar is wajib and he performs it, must he repeat it after taharah becomes possible?

The Malikis say: He is not required to perform salat, neither ada nor qada.'.

The Hanafis and the Shafi'is observe: It will remain wajib, either as ada or qada'. In the opinion of the Hanafis, the meaning of performing it ada' is that he will simulate the movements of a musalli, while the Shafi'is require him to perform real salat. After the excuse disappears he will repeat this salar as required by the Shari'ah.

Most Imamis state: He is not required to offer it as ada',though it will remain wajib as qada'.

The Schools and the Verse Concerning Tayammum

It became clear from our discussion on the topics of al-ma al-mudaf , the causes which break the Wudhu’', and tayammum, that the difference of opinion among the schools of Islamic fiqh relates mostly to the interpretation of the words of the verse dealing with tayammum:

وَإِنْ كُنْتُمْ مَرْضَىٰ أَوْ عَلَىٰ سَفَرٍ أَوْ جَاءَ أَحَدٌ مِنْكُمْ مِنَ الْغَائِطِ أَوْ لَامَسْتُمُ النِّسَاءَ فَلَمْ تَجِدُوا مَاءً فَتَيَمَّمُوا صَعِيدًا طَيِّبًا فَامْسَحُوا بِوُجُوهِكُمْ

If you are sick or on a journey, or if any of you comes from the privy, or you have touched women and you can find no water, then perform tayammum on wholesome dust and wipe your faces.... (5:6)

The legists first differ concerning one on whom tayammum is obligatory in the event of unavailability of water: is it one who is sick or on a journey, or does it also apply to a healthy non-traveller?

Is the meaning of 'touching' women sexual intercourse or just touching them with the hand? Does the word 'water' mean only plain water (al-ma al-mutlaq) or does it include al-ma al-mudaf as well? Does the word sa'id mean just dust or does it signify the surface of the earth, irrespective of its being dusty, sandy or rocky? Does the word wajh mean the complete face or just a part of it? Does the word yad imply only the hand or does it include the hand and the forearm? Here we will give a summary of the opinions discussed:

1. Abu Hanifah observes: Tayammum is not valid in the absence of water for a healthy person who is not travelling, and thus salat is also not wajib upon him because the verse permits only a sick person and a traveller to perform tayammum in the absence of water.

The four schools say: Touching a woman who is a 'stranger' (ajnabiyyah) with the hand has exactly the same effect as returning from the privy and breaks the Wudhu’.

The Imamis state: Sexual intercourse breaks the taharah and not touching with the hand.

2. The Hanafis say: The meaning of فلم تجدوا ماء فتيمموا is water, either mutlaq or mudaf. The other schools say: The word 'water' occurring in the verse is commonly understood to mean plain water and not al-ma al-mudaf.

3. The Hanafis and a group from among the Imamis observe: The word sa'id means dust, sand and rock.

The Shafi'is say: It means only dust and sand. According to the Hanbalis it means only dust. The Malikis state: It includes dust, sand, rock, snow and minerals.

The four schools say: By wajh in the verse is meant the whole face.

The Imamis say: It means only a part of it.

4. The four schools observe: The word aydi should be interpreted as including the hands, wrists and elbows.

The Imamis consider it to mean only the hands.

This difference of opinion among the schools, if it proves anything, proves that this divergence of views is superficial, not substantial, and one of language and not of principle. It resembles the difference between philologists concerning a particular word or between men of letters concerning the interpretation of a verse or couplet. This is the reason why we find that legists belonging to the same school differ among themselves exactly like one school differing with another.

- 1. Ibn Rushd, al-Bidayah wa al-nihayah, i, 63, 1935 ed. and Ibn Qudamah, al-Mughni, i, 234, 3rd ed.).

- 2. lbn Rushd, al-Bidayah wa al-nihayah, i, 66

- 3. al-Fiqh 'ala al-madhahib al-'arba'ah, mabhath arkan al-tayammum

2. Salat, Ritual Prayer

Salat

بِسْمِ اللَّـهِ الرَّحْمَـٰنِ الرَّحِيمِ

Salat (prayer) is either obligatory (wajib) or supererogatory (mandub).The most important of prayers are the obligatory prayers performed daily five times, and there is consensus among Muslims that a person who denies or doubts their wujub is not a Muslim, even if he recites the shahadah, for these prayers are among the ‘pillars’ (arkan) of Islam. They are the established necessity of the faith (al-Din) that does not need any ijtihad or study, taqlid or questioning.

The schools differ regarding a person who does not perform the salat (tarik al-salat) due to laziness or neglect though believes in its wujub. The Shafi’is, Malikis and Hanbalis observe: He will be killed.

The Hanafis state: He will get perpetual imprisonment unless he starts performing the salat.

The Imamis state: Whoever neglects any wajib duty such as salat, zakat, khums, hajj and sawm, will be chastened by the hakim in a manner deemed appropriate by him. If he does not yield to remonstrance, he will be chastened a second time, and if he does not turn penitent, a third time. And if he continues in the same manner, he will be killed the fourth time (al-Shaykh al-Kabir, Kashf al-Ghita, 1317 ed., p79).

The Daily Supererogatory Prayers (Rawatib)

Supererogatory prayers are of various kinds, and among them are those which are performed along with the obligatory daily prayers (fara’id). The schools differ regarding the number of their rak’ahs. The Shafi’is consider them to be eleven rak’ahs: two before the morning (subh) prayer, two before the noon (zuhr) prayer and two after it, two after the sunset (maghrib) prayer,two after the night (‘isha’) prayer and a single rak’ah called ‘al-watirah.’

The Hanbalis consider them to be ten rak’ahs; two rak’ahs before and after the noon prayer, two after the sunset and the night prayer, and two rak’ahs before the morning prayer.

According to the Malikis there is no fixed number for the supererogatory (nawafil) prayers performed with the obligatory salat, though it is best to offer four rak’ahs before the zuhr and six after the maghrib prayer.

The Hanafis classify the nawafil performed along with the fara’id into ‘masnunah’ and ‘mandubah’.1 The ‘masnunah’ are five: two rak’ahs before the subh; four before the zuhr, and two after it, except on Friday; two after the maghrib and two after the ‘isha’ prayer.

The ‘mandubah’ are four: four -or two- rak’ahs before the ‘asr, six after the maghrib, and four before and after the ‘isha’ prayer.

The Imamis observe: The rawatib are 34 rak’ahs: eight before the zuhr, eight before the ‘asr, four after the maghrib, two after the ‘isha’ (recited while sitting and counted as a single rak’ah; it is called ‘al-watirah’), eight rak’ahs of the midnight prayer (salat al-layl), two rak’ahs of al-shaf’, a single of al-watr,2 and two rak’ahs before the morning prayer, called ‘salat al-fajr’.

The Time of Zuhr and ‘Asr Prayers

The fuqaha’ begin with salat al-zuhr, because it was the first salat to be declared obligatory, followed by the ‘asr, the maghrib, the ‘isha’and the subh prayer, in that order. All the five prayers were made obligatory on the night of the Prophet’s cosmic journey (al-Isra’), nine years after the beginning of his mission (bi’thah). Those who hold this opinion cite as proof verse 78 of the Surat al-Isra’ which stipulates all the five prayers:

أَقِمِ الصَّلَاةَ لِدُلُوكِ الشَّمْسِ إِلَىٰ غَسَقِ اللَّيْلِ وَقُرْآنَ الْفَجْرِ ۖ إِنَّ قُرْآنَ الْفَجْرِ كَانَ مَشْهُودًا

“Perform salat from the declining of the sun to the darkening of the night and the recital of the dawn; surely the recital of the dawn is witnessed.”(Qur’an 17:78)

The schools concur that salat is not valid if performed before its appointed time and that the time of the zuhr prayer sets in when the sun passes the meridian. They differ concerning its duration.

The Imamis say: The specific period of the zuhr prayer extends from the moment the sun crosses the meridian up to a period required to perform it, and the specific period of the ‘asr prayer is the duration required to perform it just before sunset. The time between these two specific periods is the common period for the two salats.

This is the reason they consider it valid to perform both the prayers successively during their common period.3 But if the time remaining for the end of the day is sufficient only for performing the zuhr prayer, the ‘asr prayer will be offered first with the niyyah of ada’ and later the zuhr prayer will be performed as qada’.

The four Sunni schools observe: The time of the zuhr prayer begins when the sun crosses the meridian and continues till the shadow of an object becomes as long as its height; and when the length of the shadow exceeds the height of the object, the time for the zuhr prayer comes to an end. Here the Shafi’is and the Malikis add: These limits are for an unconstrained person (mukhtar); and for one who is constrained (mudtarr), the time for zuhr prayer extends even after an object’s shadow equals its height. The Imamis consider the time when an object’s shadow equals its height as the end of the time of fadilah (honor) for the zuhr, and when it equals twice the height of the object as the time of fadilah for the ‘asr prayer.

The Hanafis and the Shafi’is state: The time of ‘asr prayer begins when the length of an object’s shadow exceeds its height and continues upto sunset.

The Malikis say: For the ‘asr prayer there are two times, the first for ordinary circumstances and the second for exigencies. The former begins with an object’s shadow exceeding its height and lasts until the sun turns pale. The latter begins from when the sun turns pale and continues until sunset.

The Hanbalis observe: One who delays offering the ‘asr prayer till after an object’s shadow exceeds twice its height, his salat will be considered ada’ if performed before sunset, though he will have sinned because it is haram to delay it until this time. They are alone in all the schools in holding this opinion.

The Time of Maghrib and ‘Isha’ Prayers

The Shafi’i and the Hanbali schools (in accordance with the view of their respective Imams) state: The time for the maghrib prayer begins when the sun sets and ends when the reddish afterglow on the western horizon vanishes.

The Malikis say: The duration for the maghrib prayer is narrow and confined to the time required after sunset to perform the maghrib prayer along with its preliminaries of taharah and adhan, and it is not permissible to delay it voluntarily. But in an emergency, the time for the maghrib prayer extends until dawn. The Malikis are alone in considering it impermissible to delay the maghrib prayer beyond its initial time.

The Imamis observe: The period specific to the maghrib prayer extends from sunset4 for a duration required to perform it, and the specific period of the ‘isha’ prayer is the duration required to finish it before midnight. The time between these two specific periods is the common time for both maghrib and ‘isha’ prayers. Hence they allow the joint performance of these two salats during this common time.

That was with respect to someone who is in a position to act out of free choice (mukhtar), but as to a person constrained by sleep or forgetfulness, the time for these two salats extend until dawn, with the period specific for the ‘isha’ prayer becoming the time required to perform it just before dawn and the specific period for the maghrib prayer becoming the time required to perform it just after midnight.

The Time of Subh Prayer

There is consensus among the schools, with the exception of the Maliki, that the time for the morning prayer begins at day-break (al fajral-sadiq) and lasts until sunrise. The Malikis say: The subh prayer has two times: for one in a position to act out of free choice it begins with daybreak and lasts until there is enough twilight for faces to be recognized; for one in constrained circumstances it begins from the time when faces are recognizable and continues up to sunrise.

- 1. The Hanafis use two terms ('fard' and 'wajib') for something whose performance is obligatory and whose omission is impermissible. Hence they divide obligation into two kinds: fard and wajib. 'Fard 'is a duty for which there is definite proof, such as Qur'anic text, mutawatir sunnah, and ijma' (consensus).'Wajib' is a duty for which there is a Dhanni (non-definite) proof, such as qiyas (analogy) and khabar al-wahid (isolated tradition). That whose performance is preferable to its omission is also of two kinds: 'masnun' and 'mandub'. 'Masnun' is an act which the Prophet (S) and the 'Rashidun' caliphs performed regularly, and 'mandub' is an act ordered by the Prophet (S) though not performed regularly by him (S). That which it is wajib to avoid and whose performance is not permissible is 'muharram' if it is established by a definite proof. If based on a Dhanni proof, it is 'makruh', whose performance is forbidden.

- 2. According to the Hanafis, the salat al-watr consists of three rak'ahs with a single salam. Its time extends from the disappearance of twilight after sunset to dawn. The Hanbalis and Shafi'is say: At minimum it is one rak'ah and at maximum eleven rak'ahs, and its time is after the 'isha' prayer. The Malikis observe: It has only one rak'ah.

- 3. There are among 'ulama' of the Sunni schools those who agree with the Imamis on performing the two salats together even when one is not travelling. Al-Shaykh Ahmad al-Siddiq al-Ghumari has written a book on this topic, Izalat al khatar 'amman jama'a bayn al-salatayn fi al-hadar.

- 4. There is no difference regarding the definition of sunset between the Imamis and the other four schools. But the Imamis say that the setting of the sun is not ascertained simply by the vanishing of the sun from sight, but on the vanishing of the reddish afterglow from the eastern horizon, for the east overlooks the west and the eastern afterglow, which is a reflection of sun's light, pales away as the sun recedes.
That which is rumored regarding Shi'is that they do not break their fast during Ramadan until the stars become visible, has no basis. In fact they denounce this opinion in their books on fiqh with the argument that the stars may be visible before sunset, at the time of sunset or after it, and declare that "one who delays the maghrib prayer till the stars appear is an accursed man (mal'un ibn mal'un).”

They have said this in condemnation of the Khattabiyyah (an extremist sect which deviated from Shi’a), the followers of Abu al-Khattab, who held this belief. Thanks to God that they are now one of the extinct sects. Imam al-Sadiq a.s. was told that the people of Iraq delay the maghrib prayer until the stars become visible. He answered, "That is on account of Abu al-Khattab, enemy of Allah."

The Qiblah

The schools concur that the Ka’bah is the qiblah of the one who is near it and is able to see it. They differ regarding the qiblah of one who is away from the Ka’bah and unable to see it.

The Hanafis, Malikis, Hanbalis and a group of Imami legists observe: The qiblah of one at a distance is the direction of the Ka’bah and not the Ka’bah itself.

The Shafi’is and most Imamis state: It is wajib for one who is near the Ka’bah as well for one at a distance, to face the Ka’bah itself. Thus, if it is possible to ascertain that one is facing the Ka’bah itself, one must do so; otherwise the probability (zann) that one may be facing it, is sufficient. It is obvious that one who is far away from the Ka’bah is in no way capable of ascertaining that he is facing the Ka’bah, considering that the earth is spherical. Consequently, the qiblah of one away from the Ka’bah will be the direction of the Ka’bah and not the Ka’bah itself.

Ignorance of the Qiblah (Direction)

It is wajib for a person ignorant of the qiblah to inquire and strive to determine its exact or approximate direction1, and in case neither of the two is possible, the four Sunni schools and a group from among the Imamis say: He may perform salat in any direction; his salat will be valid and it will not be wajib for him to repeat it except in the opinion of the Shafi’is.

Most Imamis observe: He will perform Salat in four directions to comply with the command for salat and to ascertain its proper performance. But if there isn’t sufficient time for performing salat four times or if one is incapable of performing it in four directions, he may perform salat in the directions that he can.

A Subsidiary Issue

If a person prays not facing the qiblah and comes to know about his mistake, the Imamis state: If the error is known during the salat and the correct qiblah lies between his two hands, the part of the salat already performed will be valid and he will have to correct his direction for the remaining part of the salat. But if it is known that he has been praying facing the east, or the west, or the north with his back towards the qiblah (this is with reference to Lebanon where the qiblah lies to the south), the salat will be invalid and he will perform it anew.

If the error is known after performing the salat, it should be performed again if its time is still there, not otherwise. Some Imamis say: The salat will not be repeated if there is only a little deviation from the qiblah, irrespective of whether its time is still there or not.

But if it has been performed facing east or west [the right or the left (90 degrees off)], it should be repeated if its time is there, not otherwise. If the salat is performed with one’s back to the qiblah (180 degrees off), it should be repeated regardless of whether its time is still there or has passed.

The Hanafis and the Hanbalis observe: If after inquiring and striving to find the qiblah one is unable to ascertain its approximate direction and performs salat in a direction which turns out to be wrong, he must change his direction accordingly if the mistake is known during the salat, and if it is known afterwards his salat is valid and he has no further obligation.

The Shafi’is say: If it becomes certain that there has been a mistake in determining the qiblah, it is wajib to repeat the salat, but if there is only a likelihood of mistake, the salat is valid irrespective of whether the probability arises during the salat or after it.

As to one who neither makes an inquiry nor an effort to determine the qiblah, but by chance performs the salat in the right direction, the Malikis and Hanbalis consider his salat to be invalid (batil).

The opinion of the Imamis and the Hanafis is that his salat is valid provided he has no doubts while praying and was sure about the direction of the qiblah at the time of starting the salat, because, as pointed out by the Imamis, in such a situation it is correct for him to make the niyyah of acquiring nearness (qurbah) to God.

- 1. The command to face Masjid al-Haram has come in verse 144 of Surat al-Baqarah (...So turn your face towards Masjid al-Haram), and the leave to turn in any direction in verse 115: (To God belong the East and the West; where ever you turn there is the Face of God). Some scholars have held that the former verse abrogates the latter.
Others disagree and point out that there is no abrogation involved here, nor is it a case of one being particular and the other general. The way to reconcile the two verses, they point out, is that the former verse applies to those who know the direction of the qiblah and commands them to turn towards it. The latter verse specifically applies to one who is at a loss regarding its direction and orders him to perform salat in any direction he wants. This opinion seems to be more credible.

The Rules of Modesty

This issue is one of those from which numerous by laws are derived,such as those specifying the parts of one’s body that must be covered (‘awrah) and the parts of another person’s body which it is haram to look at, those relating to the difference between maharim (relatives through lineage or marriage with whom marriage is prohibited) and non-maharim persons in this regard, the difference in this regard due to sameness or difference of sex, the difference between looking and touching and similar rules which are discussed below.

1. Looking at One’s Own Body

The schools differ concerning covering of one’s ‘awrah (private parts) from one’s own view and whether it is haram for one to uncover one’s ‘awrah in privacy.

The Hanafis and the Hanbalis observe: In the same way that it is not permissible for a person to expose his ‘awrah in the presence of anyone for whom it is not permissible to look at it, it is not permissible for him to expose it when alone without necessity, as arises at the time or bathing or answering the call of nature.

The Malikis and Shafi’is say: It is not unlawful but reprehensible (makruh) to be bare without necessity.

The Imamis state: It is neither haram nor makruh when no one else is looking at it.

Ibn Abi Layla holds an uncommon opinion that prohibits one from baring oneself even for bath for the reason that water is inhabited by living beings (al-Majmu’ Sharh al-Muhadhdhab, ii, 197).

2. Woman and Her Maharim

The schools differ concerning the parts of the body a woman must cover in the presence of her maharim (except the husband) and Muslim women.1 In other words, what constitutes the ‘awrah of a woman in the presence of Muslim women as well as her maharim, both through lineage and marriage?

The Hanafis and the Shafi’is say: It is wajib for her to cover the area between the navel and the knees in their presence.

The Malikis and the Hanbalis observe: She must cover the area between the navel and the knees in front of women, and in the presence of her maharim, her whole body except the head and the arms.

Most Imamis state: It is wajib for her to cover her rear and private parts in the presence of women and her maharim; to cover other parts as well is better though not wajib, except where there is a fear of sin.

3. Women and ‘Strangers’

About the extent of the body to be covered by a woman in the presence of a ‘stranger’ (any male apart from the mahrim), the schools concur that it is wajib for her to cover her whole body except the face and hands (up to the wrists) in accordance with the verse 31 of Surat al-Nur:

وَلاَ يُبْدِينَ زِينَتَهُنَّ إِلاَّ مَا ظَهَرَ مِنهَا وَلْيَـضْرِبْنَ بِخُمُرِهِنَّ عَلَى جُيُوبِهِنَّ

...And reveal not their adornment save such as is outward; and let them cast their veils over their bosoms (Qur’an 24:31)

considering that ‘outward adornment’ (al-zeenah) implies the face and hands. The word ‘al-khimar’ (whose plural ‘khumur’ occurs in the verse) means the veil which covers the head, not the face, and the word ‘al-jayb’ (whose plural ‘juyub’ occurs in the verse) means the chest. The women have been commanded to put a covering on their heads and to lower it over their chests. As to verse 59 of Surat al-Ahzab:

يَا أَيُّهَا النَّبِيُّ قُلْ ِلأَزْوَاجِكَ وَبَنَاتِكَ وَنِسَاءِ الْمُؤْمنينَ يُدْنِينَ عَلَيْهِنَّ من جَلاَبِيبِهِنَّ

‘O Prophet, say to your wives and daughters and the believing women that they draw their veils close to them..., (Qur’an 33:59)

the word ‘al-jilbab’ (whose plural jalabib occurs in the verse) does not mean a veil covering the head; rather it is a shirt or garment.

4. Man’s ‘Awrah

The schools differ concerning the parts of man’s body which it is haram for others to see and for him to expose. The Hanafis and the Hanbalis state: It is wajib for a male to cover the area between the navel and the knees before all except his wife. It is permissible for others, irrespective of their being men or women, maharim or strangers, to look at the rest of his body when there is no fear of sin.

The Malikis and the Shafi’is say: There are two different situations for a male with respect to the extent he can expose his body: the first, in the presence of men or those women who are his maharim; the second, in the presence of women who are not his maharim.

In the former instance he is only supposed to cover the area between the waist and the knees, while in the latter it is haram for a woman stranger to look at any part of a man’s body. Though the Malikis exclude the face and the arms if looked at without any sensual motive, the Shafi’is do not permit any exception2.

The Imamis differentiate between the parts of other person’s body which can be looked at and those parts of one’s own body which ought to be covered. They observe: It is wajib for a male to cover only his rear and private parts, though it is wajib for women who are not his maharim to abstain from looking at any part of his body except his head and hands (upto the wrist).

To summarize the Imami opinion, it is permissible for a male to view the body of other men and his female maharim except the rear and private parts provided no sensual motive is involved. Similarly, a woman can view the body of another woman and her male maharim excepting the rear and private parts provided no sensual motive is involved.

5. Children

Concerning the body of a child, the Hanbalis say: It is not prohibited to touch or look at the body of a child below seven years. It is not permissible to look at the rear and private parts of a male child between the age of 7 to 9 years, and for ‘strangers’ the whole body of a female child above the age of seven.

The Hanafis observe: No part of the body of a boy of four years and below is prohibited from being looked at. Above this age only his rear and private parts are prohibited from being looked at as long as sexual desire has not awakened in him. If he reaches the age of sexual desire, the rule applicable to adults will be applicable to him with respect to both the sexes.

The Malikis state: It is permissible for a woman to look at and touch the body of a boy below the age of eight years, and only look at it till the age of twelve. A boy above the age of twelve is considered similar to an adult. It is permissible for a man to look at and touch the body of girl below two years and eight months, and to look at, though not touch, till she reaches the age of four years.

According to the Shafi’is, the rules applicable to an adult apply to an adolescent male child. But if a child is below that age and is also incapable of describing what he sees, all parts of his body can be looked at. But if he can describe what he sees with a sexual interest, he will be considered similar to an adult. As to a girl below the age of adolescence, only if she has developed sexual appeal will she be considered similar to a full-grown woman, not otherwise, though it will be haram for anyone except someone who looks after her to look at her parts.

The Imamiyyah observe: It is wajib to cover one’s ‘awrah in front of a child of discriminating age, who can describe what he sees, though it is not wajib before the one who is incapable of doing so, because (in this respect) he is similar to an animal. That was regarding the covering of the body in the presence of a child, but with respect to looking at a child’s ‘awrah, al-Shaykh Ja’far in his book Kashf al-ghita’ states: It is not wajib to abstain from looking at the parts of a child below five years, though it is absolutely impermissible to look at them with a sexual interest.

From what I have been able to ascertain from the traditions of the Ahl al-Bayt, the age limit for the permissibility of looking at the child’s ‘awrah is six years, not five.

6. Woman’s Voice

All the schools concur that listening to the voice of a woman is not prohibited, except where pleasure is involved or when there is a fear of sin. The (Imami) author of al-Jawahir, at the beginning of the chapter on marriage, has mentioned as his proof the continuing practice of Muslims belonging to different periods and regions, the sermons of Fatimah (sa) and her daughters, the innumerable instances of conversations of the wives of the Prophet (S), the Imams and the ‘ulama’ – which cannot possibly be considered as having taken place due to emergency - and also the holding of mourning and wedding ceremonies by women in the presence of men from early times, the conversations between opposite sexes while conducting transactions, as well as the Qur’anic verse:

ولا تَخْضَعْنَ بِالْقَوْلِ

Be not complaisant in your speech.. (Qur’an 33:32),

in which not speech itself but its manner and complaisance have been prohibited.

7. The Colour, Not the Shape

The schools concur that it is wajib to cover (the body’s) colour, not its shape. This writer comments: If the colour of the covering is similar to the colour of the skin, so that it is not discernable from it, as in the case of skin-coloured stockings, the presence or absence of covering will be equal.

8. The difference between Looking and Touching

Every part that is permissible to touch, may be looked at, and every part that is haram to be looked at may not be touched. Here there is a general consent among the schools because touching involves greater pleasure than looking, and no legist of any school claims concomitance between the permissibility of looking and the permissibility of touching.

Hence, though it is permissible for a man to look at a female stranger’s face or hands, it is not permissible for him to touch her except in an emergency such as for medical treatment or for rescuing her from drowning. The following tradition has been narrated from al-Imam al-Sadiq (as):

هل يصافح الرجل المرأة ليست له بذي محرم؟ قال: (لا، إلاّ من وراء ثياب).

(Al-Imam al-Sadiq (A) was asked:) "Can a man shake hands with a woman who is not his mahram?” The Imam (A) replied: "No, unless there is a cloth in between.”

The Hanafis exclude shaking hands with an old woman from the prohibition. In the book of Ibn ‘Abidin (vol.1, p.284) it is stated: It is not permissible to touch the hands or face of a young woman even with the assurance of absence of any sexual motive. As to an old woman who has no sexual appeal, there is nothing wrong in shaking hands with her with the assurance of absence of a sexual motive.

The Imamis and the Hanafis allow touching the body of any mahram provided no sexual motive or pleasure is involved.

The Shafi’is prohibit touching even those parts of a mahram’s body which it is permissible to look at. It is even not permissible in their opinion for a person to touch the belly or back of his mother, pinch her ankles or feet or kiss her face. Similarly, it is not permissible for a person to ask his daughter or sister to press his legs. (al-‘Allamah al-Hilli, al-Tadhkirah, vol.2, beginning of “bab al-zawaj”).

9. The Difference Between Exposing and Looking at

The Imamis observe: There is no concomitance between the permissibility of exposing the body and the permissibility of looking at it. Hence it is permissible in their opinion for a man to expose the whole of his body except his rear and private parts, while it is not permissible for a non-mahram woman to look at it. I have not found anyone expressing this opinion in the numerous books of the four Sunni schools.

10. Old Women

God Almighty says in the Qur’an:

وَالْقَوَاعِدُ مِنْ النِّسَاءِ اللاَّتِي لاَ يَرْجُونَ نِكَاحاً فَلَيْسَ عَلَيْهِنَّ جُنَاحٌ أَنْ يَضَعْنَ ثِيَابَهُنَّ غَيْرَ مُتَبَرِّجَاتٍ بِزِينَةٍ وَأَنْ يَسْتَعْفِفْنَ خَيْرٌ لَهُنَّ وَاللَّهُ سَمِيعٌ عَلِيمٌ

And such women as are past child-bearing and have no hope of marriage, it is no sin for them if they put off their clothes, so be it that they flaunt no ornament; but to abstain is better for them, and God is All-hearing, All-knowing. (Qur’an 24:60)

This noble verse indicates that it is permissible for old women who have no desire for marriage due to their old age "to expose their face and a part of their hair and arms, and such other parts which aged women usually keep exposed. The traditions of the Ahl al-Bayt (as) also point to the same, on condition that such exposure be not with the intent of display. Rather, it is to allow them to come out for fulfilling their needs, though it is better for them to keep themselves covered."3

This permission is with the assumption that it is not permissible to expose any of the above-mentioned parts of the body if there is fear of its leading to something haram, because a woman, regardless of her elderly age, may remain sexually attractive. Therefore, if there is any likelihood of that kind, the rule applicable to her will be the rule applicable to young women.

Islam is lenient with respect to elderly women and strict regarding young women. But in practice we observe the opposite of what the Qur’an has ordered. We see shamelessness and display of charms among some young women, while elderly women keep themselves covered and are reserved. So where God is strict, they are lenient, and where He is lenient, they are strict.

- 1. Verse 31 of Surat al-Nur mentions those before whom women can expose their adornment, and among them are Muslim women. Thus the verse prohibits a Muslim woman from exposing herself before a non-Muslim woman. The Shafi’is, Malikis and Hanafis construe this prohibition as implying tahrim.
Most Imamis and Hanbalis say: There is no difference between Muslim women and non-Muslim women. But according to the Imamis, it is makruh for a Muslim woman to expose herself before a non-Muslim woman, because she may describe what she observes to her husband.

- 2. al-Fiqh ‘ala al-madhahib al’arba’ah, vol.1, mabhath satral-’awrah.

- 3. Al-Jawahir, at the beginning of “bab al-Zawaj”.

Wajib Covering During Salat

The schools concur that it is wajib upon both men and women to cover those parts of their bodies during salat which should ordinarily be kept covered before ‘strangers’. Beyond that their positions differ. Is it wajib for a woman to cover, fully or partly, her face and hands during salat, although she is not required to do so outside salat? Is it wajib for a man to cover other parts of his body during salat apart from the area between the navel and the knees, though it is not wajib to do so outside salat?

The Hanafis observe: It is wajib upon a woman to cover the back of her hands and the soles of her feet as well, and upon a man to cover his knees in addition to the area between the navel and the knees.

The Shafi’is and Malikis say: It is permissible for a woman to keep her face and both the palms and the back of her hands uncovered during salat.

The Hanbalis state: It is not permissible for her to expose any part except the face.

The Imamis observe: It is wajib for both men and women to cover only those parts of their body during salat which they are supposed to cover ordinarily in the presence of a ‘stranger’. Hence it is permissible for a woman to expose during salat that part of her face which is washed during wudu’; her hands up to the wrists, and her feet up to the ankles both the back as well as the palms of hands and the soles of feet. For a man, it is wajib to cover the rear and the private parts, though better to cover the entire area between the navel and the knees.

The Requirements for the Covering during Salat

The covering should meet the following requirements where the ability and freedom to meet them exist:

1.Taharah

The purity of the covering and the body are necessary for the validity of salat in the opinion of all the schools, although each of them concedes certain exceptions in accordance with the following details:

The Imamis state: Blood from wounds and sores, irrespective of its quantity, is considered excusable on the dress as well as the body if its removal entails difficulty and harm (mashaqqah wa haraj). A blood spot smaller than the size of a dirham coin, regardless of its being due to one’s blood or that of someone else, is also excusable provided that: it is in a single place and not in different places; it is not the blood of hayd, nifas and istihadah; it is not the blood of anything intrinsically najis, such as dog and pig, or the blood of a dead body (maytah).

Also excusable is the impurity (najasah) of anything that does not constitute part of essential dress during salat, e.g. a sash, cap, socks, shoes, ring, anklet and that which one carries with oneself, e.g. knife or currency. The najasah of the dress of a woman rearing a child, irrespective of whether she is the mother or someone else, is exempted on condition that it be difficult for her to change it and that she washes it once every day. In other words, in their opinion every najasah on dress or body is exempted in conditions of emergency (idtirar).

The Malikis observe: Cases of uncontrolled discharge of urine or excrement, as well as piles, are excusable; so is any impurity on the body or clothes of a woman suckling an infant that may be soiled by the infant’s urine or faeces. So also are exempted the body and clothes of a butcher, surgeon and scavenger. Also exempted is: blood – even that of a pig - if it is less than the size of a dirham coin: the discharge from boils, the excrement of fleas, and other things which need not be mentioned because they occur rarely.

The Hanafis say: Najasah, blood or anything else, if less than the size of a dirham coin is exempted. Also exempted in emergencies is the urine and excrement of a cat and mouse. Tiny splashes - as small as the point of a needle - of urine, the blood that unavoidably stains a butcher, and the mud on roads - even if it is usually mixed with najasah and provided the najasah itself is not visible - are exempted. Consequently, they consider najasah in a small quantity as exempted, such as the urine of an animal eating which is halal, if it covers a fourth of the clothes and less than one-fourth of the body.

According to the Shafi’is, every najasah which is in such a small quantity that the eye cannot see it is exempted. So is the mud on roads which is mixed with a small quantity of najasah, worms present in fruits and cheese, najis liquids added in medicines and perfumes, excrements of birds, najis hair in small quantity if they do not belong to a dog or a pig, and other things as well which are mentioned in detailed works.

The Hanbalis say: Minute quantities of blood and pus are exempted, and so is the mud on roads whose najasah is certain, as well as the najasah that enters the eyes and washing which is harmful.

2. Wearing Silk

There is consensus among the schools that wearing silk and gold is haram for men both during and outside salat, while it is permissible for women. This is in accordance with this statement of the Prophet (S):

حرّم لباس الحرير والذهب على ذكور أُمتي، وأحلّ لإناثهم

“Wearing silk and gold is unlawful for the men of my ummah, while it is lawful for its women”.

Accordingly, the Imamis observe: A man’s salat is not valid if he wears pure silk and any clothing embroidered with gold during it, regardless of whether it is a waistband, cap, socks, or even a gold ring. They allow wearing silk during salat in times of illness and during war.

The Shafi’is state: If a man performs salat while wearing silk or over something made of it, it will be considered a haram act, though his salat will be valid (al-Nawawi, Sharh al-Muhadhdhab, iii, 179). I have not found an express statement in the books of the remaining schools concerning the validity or invalidity of salat performed in silk, though the Hanafis as well as the Hanbalis (in accordance with one of two narrations) concur with the Shafi’is regarding the general rule that if there is any command prohibiting something which is not directly connected with salat such as the command prohibiting usurpation - the salat will be valid if it is not observed and the person will be considered as having performed a wajib and a haram act together. Accordingly the salat performed in a dress of silk is valid.

The author of Al-fiqh ‘ala al-madhahib al-’arba’ah reports a consensus (for the Sunni schools) that that it is valid for a man constrained to perform salat while wearing silk, and it is not wajib for him to repeat it.

3. Lawfulness of the Clothing

The Imamis consider it necessary that the clothing worn be lawfully owned. Hence if a person performs salat in usurped clothes with the knowledge of their being so, his salat is batil (invalid). This is also the opinion of Ibn Hanbal in one of the two statements narrated from him.

The other schools regard salat in usurped clothes as valid on the grounds that the prohibition does not directly relate to salat so as to invalidate it.

The Imamiyyah are very strict concerning usurpation, and some of them even observe: If a person performs salat in clothes in which a single thread is usurped, or carries with him an usurped knife, dirham, or any other thing, his salat will not be valid. But they also say: If one performs salat in usurped clothes out of ignorance or forgetfulness, his salat is valid.

4. The Skin of Animals Not Used for Food

The Imamis are alone in holding that it is invalid to perform salat while wearing the skin (even if tanned) of an animal whose flesh is not allowed to be eaten, as well as anything consisting its hair, wool, fur or feathers. The same is true of clothes bearing any secretion from its body- eg. sweat and saliva - as long as it is wet.

Hence, even if a single hair of a cat or any such animal happens to be present on the dress of a person performing salat and if he performs it with the knowledge of its presence, his salat is invalid (batil).

They exclude wax, honey, the blood of bugs; lice, fleas and other insects which have no flesh, as well as the hair, sweat and saliva of human beings.

They also consider salat invalid if any part of a dead animal (maytah) happens to be on the clothes, irrespective of whether the animal is one used for food or not, whether its blood flows when cut or not, and its skin is tanned or not.

A Subsidiary Issue

If there is only a single clothing to cover the body and that too is najis to an extent that is not excusable, what should one do if he has no alternative other than either performing salat in the najis clothing or in the state of nature?

The Hanbalis say: He should perform salat in the najis clothing, but it is wajib upon him to repeat it later.

The Malikis and a large number of Imamis observe: He should perform salat in the najis clothing and its repetition is not wajib upon him.

The Hanafis and the Shafi’is state: He should perform salat naked and it is not valid for him to cover himself with the najis clothing.

The Place of Salat

A Usurped Place

The Imamis consider salat performed in a usurped place and usurped clothing as invalid (batil) provided it is done voluntarily and with the knowledge of the usurpation. The other schools observe: The salat performed in a usurped place is valid, though the person performing it will have sinned, since the prohibition does not relate directly to salat; rather, it relates to dispensations (of property). Their position in this regard is the same as in the case of usurped clothing.

What a great distance between this opinion of the four schools the a usurper’s salat is valid in usurped property, and the opinion of the Zaydiyah that because of the prohibition on the use of anything usurped, it is not valid even for the true owner to perform salat in his property as long as it remains usurped.

The Imami view represents a middle position, because they consider as valid the salat of the true owner and anyone whom he permits, and regard as invalid (batil) the salat of the usurper and anyone whom the owner has not granted permission. The Imamis also permit salat in vast stretches of (owned) land which are either impossible or difficult for people to avoid, even if the permission of the owner has not been acquired.

Taharah (purity) of the Place

The four Sunni schools observe: The place should be free from both wet and dry najasah (impurity). The Shafi’is overdo by saying: The taharah of all that which touches and comes into contact with the body or clothes of the musalli is wajib.

Therefore, if he rubs himself against a najis wall or cloth or holds a najis object or a rope laying over najasah, his salat will be invalid (batil). The Hanafis require only the location of the feet and the forehead to be tahir. The Imamis restrict it to the location of the forehead, i.e. the place of sajdah. As to the najasah of other locations, the salat will not be batil unless the najasah is transmitted to the body or clothing of the musalli (the person performing salat).

Salat performed on a Mount

The Hanafis and the Imamis require the place to be stationary; hence it is not valid in their opinion to perform salat while riding an animal or something that swings back and forth, except out of necessity, because one who has no choice will perform salat in accordance with his capacity.

The Shafi’is, Malikis and Hanbalis observe: Salat performed on a mount is valid even during times of peace and despite the ability to perform it on the ground, provided it is performed completely and meets all the requirements.

Salat inside the Ka’bah

The Imamis, Shafi’is and Hanafis state: It is valid to perform salat, faridah or nafilah, inside the Ka’bah.

The Malikis and the Hanbalis say: Only nafilah, not faridah, is valid therein.

A Woman’s Prayer beside a Man

A group of Imami legists observe: If a man and a woman perform salat in a single place so that she is either in front of him or beside him, and there is neither any screen between them nor does the distance between the two exceed 10 cubits, the salat of the one who starts earlier will not be invalid (batil), and if both start simultaneously, the salat of both will be batil.

The Hanafis say: If the woman is in front or beside a man, the salat will be invalid (batil) if performed in a single place with no screen at least a cubit high between them, the woman has sex appeal, her shanks and ankles are adjacent to his, the salat is not a funeral prayer, and the salat is being jointly performed, i.e. either she is following him or both are following a single imam.

The Shafi’is, the Hanbalis and most Imamis are of the view that the salat is valid, though the manner of performance is makruh.

The Locale of Sajdah

The schools concur that the place where the forehead is placed during prostration should be stationary and should not be inordinately higher than the location of the knees (during sajdah). They differ regarding that on which sajdah is valid.

The Imamis state: It is valid to perform sajdah only on earth and those things which grow on it and are not used for food or clothing. Therefore, a person cannot perform sajdah on wool, cotton, minerals and that which grows on the surface of water, for water is not earth.

They permit sajdah on paper because it is made of a material which grows on earth. They argue their position by pointing out that sajdah is an ‘ibadah prescribed by the Shari’ah that depends for its particulars on textual evidence (nass). The legists of all the schools concur regarding the validity of sajdah on earth and that which grows on it, thus Imamis restrict it to that because there is certainty. They offer as further evidence these traditions of the Prophet (S):

لا تتم صلاة أحدكم حتى يتوضأ كما أمر الله، ثُمّ يسجد ممكناً جبهته مِن الأرض

The salat of any of you will not be valid unless he performs wudu’ as instructed by God and then performs sajdah by placing his forehead on the earth.

خلقت الأرض مسجداً وطهوراً

The earth has been created a masjid (a place for performing sajdah) and a purifier.

Khabbab says: "We complained to the Prophet (S) regarding the excessive heat of sun-baked ground on our foreheads, but he did not accept our complaint."
Had it been valid to perform sajdah on carpets, why would they have complained?

Imamis permit sajdah on cotton and linen in the case of idtirar (emergency).

The four schools observe: It is valid to perform sajdah on anything, including even a part of one’s turban, provided it is tahir. Rather, the Hanafis permit sajdah on one’s palm even without an emergency, though it is considered as makruh.

Adhan (Call for Prayer)

Adhan literally means ‘announcement’, and in the Shari’ah it means the announcement made in specific words at the time of salat. It was introduced in the first year of the Hijrah at Madinah. The cause of its introduction, in the opinion of the Imamis, was that Gabriel came down with the adhan in a message from God to the Prophet (S). The Sunnis say that ‘Abd Allah ibn Zayd saw a dream in which he was taught the adhan by someone. When he related his dream to the Prophet (S), he approved it.

Adhan is a Sunnah

The Hanafis, Shafi’is and Imamis say: Adhan is a sunnah which has been emphatically recommended (mu’akkadah).

The Hanbalis observe: It is a kifa’i fard for non-traveling men in villages and towns to make the adhan for the five daily prayers.

The Malikis state: It is a wajib kifa’i in towns where the Friday prayer is held, and if the people of such a place abandon adhan they will be fought on that account.

Adhan is Invalid in Certain Cases

The Hanbalis observe: It is not valid to make adhan for a funeral prayer (salat al-janazah) or for a supererogatory prayer (al-salat al-nafilah) or for one performed to fulfil a vow (al-salat al-mandhurah).

The Malikis say: It is not valid for a supererogatory or funeral prayer or for an obligatory daily prayer performed after the lapsing of its time (al-salat al-fa’itah).

The Hanafis state: It is not valid for the prayers performed on the two ‘ids (‘idayn), for the prayer performed on the occurrence of an eclipse (salat al-kusuf), for prayers made for rain (istisqa’), and for tarawih and sunnah prayers.

The Shafi’is do not consider it valid for janazah, mandhurah and nawafil prayers.

The Imamis observe: The Shari’ah has introduced adhan only for the five daily salats, and it is mustahabb for them, whether performed as ada’ or qada’, with a group (jama’ah) or singly (furada), during journey or stay, both for men and women. It is not valid for any other salat, mustahabb or wajib, and the mu’adhdhin will call out "al-salat” three times on occasions of salat al-kusuf and ‘Idayn.

The Conditions for Adhan

The schools concur that the conditions for the validity of adhan are: maintaining continuity of its recital and the sequence of its different parts, and that the mu’adhdhin be a sane Muslim man.1 Adhan by a child of discerning age is valid. All the schools concur that Taharah is not required for adhan.

The schools differ regarding other aspects. The Hanafis and the Shafi’is say: Adhan is valid even without niyyah. The other schools require niyyah.

The Hanbalis consider making adhan in any language other than Arabic as being unconditionally valid. The Malikis, Hanafis and Shafi’is state: It is not valid for an Arab to make adhan in any other language, though it is valid for a non-Arab to make it in his own tongue, for himself and his co-linguals.

The Imamis observe: Adhan is not valid before the arrival of the time of salat except in the case of salat al-fajr. The Shafi’is, Malikis, Hanbalis and many Imamis permit the making of the adhan of announcement before the dawn. The Hanafis do not permit it, making no difference between salat al-fajr and other salats. This opinion is closer to caution.

The Form of Adhan

The following is the form of adhan:

Allahu akbar -- four times according to all the schools and twice according to the Malikis.

Ashhadu an la ilaha illallah -- twice according to all the schools.

Ashhadu anna Muhammadan rasul Allah - twice according to all the schools.

(It is Mustahabb (recommended) to also say at this point:Ashhadu anna Aliyyan wali Allah - twice according Imamis only.It means I bear witness that ‘Ali is protected by Allah (from any evil))

Hayya ‘ala al-salat -- twice according to all the schools.

Hayya’ala al- falah -- twice according to all the schools.

Hayyah ‘ala khayril-’amal -- twice according to the Imamis only.

Allahu akbar-- twice according to all the schools.

La ilaha illallah -- once according to the four schools and twice according to the Imamis.
The Malikis and Shafi’is permit repetition of the last line, considering it sunnah; that is the adhan, according to them, is not invalid if it is recited only once, as the Imamis hold.

The author of al-Fiqh ‘ala al-madhahib al-’arba’ah mentions a consensus among the four Sunni schools regarding ‘al-tathwib’ being mustahabb. Al-tathwib means reciting the words "al-salatu khayrun min al-nawm", (‘Salat is better than sleep’) twice after "hayya ‘ala al-falah ".The Imamis prohibit it.2

Iqamah (A call immediately before prayer)

For both men and women it is mustahabb to recite iqamah before every daily obligatory salat, with the salat immediately following it. The rules applicable to adhan, such as continuity, sequence, its being in Arabic, etc., apply to iqamah as well. Its form is as follows:

Allahu akbar - -twice according to all the schools except the Hanafis who require it four times.
Ashhadu an la ilaha illallah -- once according to the Shafi’is, Malikis and Hanbalis and twice according to the Hanafis and Imamis.

Ashhaduanna Muhammadan Rasulullah -- once in the opinion of the Shafi’is, Malikis and Hanbalis, and twice according to the Hanafis and Imamis.

Hayya ‘ala as-salat -- once in the opinion of the Shafi’is, Malikis and Hanbalis, and twice according to the Hanafis and Imamis.

Hayya ‘ala al-falah -- once in the opinion of the Shafi’is, Malikis and Hanbalis, and twice according to the Hanafis and Imamis.

Hayya’ala khayr il-’amal -- twice according to the Imamis only.

Qad qamat is-salat -- twice in the opinion of all schools, except the Malikis who recite it once.

Allahu akbar -- twice in the opinion of all the schools.

La ilaha illallah -- once in the opinion of all the schools.

A group of Imami legists observe: It is valid for a ‘traveler’ and a person in a hurry to recite each sentence of the Adhan and Iqamah only once.

- 1. The Imamis observe: It is mustahabb for a woman to say adhan for her salat, though not as a call to prayer. Similarly it is mustahabb for women while holding their own jama’ah that one of them make the adhan call and the iqamah in a manner that men do not hear it. The four Sunni schools consider iqamah as mustahabb and adhan as makruh for women.

- 2. Ibn Rushd in Bidayat al-Mujtahid (1935 ed.) vol.1, p.103, says: “Others have said: The phrase ‘al-salatu khayrun min al-nawm’ should not be recited because it is not a masnun part of the adhan, and this is the opinion of al-Shafi’i. The cause for the disagreement is whether it was said (as part of the adhan) during the time of the Prophet (S) or during that of ‘Umar.” It is stated in Ibn Qudama’s al-Mughni, (3rd ed.) vol.1, p.408: “Ishaq has said that this thing has been innovated by the people and Abu ‘Isa has said: ‘This tathwib is something that the learned (ahl al-‘ilm) have regarded with distaste. It is that on hearing which Ibn ‘Umar left the mosque.’”

The Essentials (Arkan) of Salat

The validity of the salat is dependent upon taharah (purity) - both from hadath and khabath, the time of performing it, facing the qiblah, and wearing sufficient clothing. The fulfilment of these conditions (called shurut) before starting the salat is necessary, and they have been discussed in detail in the preceding sections. Salat also comprises certain essentials (arkan wa fara’id) which are performed as parts of salat.

They are many, and among them are the following:

1. Intention (Niyyah)

The schools -- or rather the legists of each school among themselves -- differ regarding the content of the niyyah (intention) required for salat, that is, whether it is necessary to specify the salat (such as its being zuhr or ‘asr prayer), whether it is obligatory or supererogatory, complete (tamam) or shortened (qasr), in time (ada’) or late (qada’), and so on.

The essence of the niyyah, as mentioned in the chapter on wudu’ (ablution) is the intention to perform an act with the motive of obedience to a command of God Almighty. Specification of a particular salat, whether it is obligatory or supererogatory, ada’ or qada’, is dependent upon the intention of the musalli. Thus if he intends to perform a supererogatory salat at the beginning and performs it with this intention, it will be supererogatory; if he intends to perform an obligatory salat, such as zuhr or ‘asr prayers, it will be so.

But if he does not intend anything it will be a waste of labour, though it is impossible for one not to intend anything. Because any act performed by a sane person cannot be without an intention regardless of whether he expresses it in specific words or not, and irrespective of whether he is attentive to his intention or not. Therefore, all the schools concur that expressing the niyyah in words is not necessary. Similarly, it is also ordinarily impossible for one who knows the difference involved to intend zuhr while performing ‘asr and an obligatory salat while performing a supererogatory one.

However discussions regarding niyyah and its various forms were not in vogue among the pioneering scholars of the shari’ah. It would be good to quote here the observations of two great scholars, Ibn al-Qayyim from among the Sunni legists, and Sayyid Muhammad, the author of al-Madarik, from the Imamiyyah.

The former observes in his Zad al-Ma’ad as quoted in the first volume of Ibn Qudamah’s al-Mughni: "The Prophet (S) used to say ‘Allahu Akbar’ when he stood for prayer and did not say anything before it. He did not expresss the niyyah in words, such as saying: ‘I perform such and such prayer in four rak’ahs facing the qibla as an imam or ma’mum (one who follows the imam). Neither did he mention whether it was ada’ or qada’ nor its time.These ten are later elaborations and no one has ever narrated them from him (S) in either sahih or da’if form. And neither the tabi’un nor the four imams have opted for them."

The latter, in Madarik al-Ahkam (mabhath al-niyyah awwal al-salat) observes: "That which is inferable from the sources of the shari’ah is that niyyah is a simple matter and all that it involves is the intention to perform an act in obedience to God, the Exalted. This is something which no sane person can do without while turning to perform an act of worship (‘ibadah)."

Here some scholars have observed: If God were to enjoin the performance of salat or any other ‘ibadah without a niyyah, it would have amounted to something impossible. Al-Shahid has mentioned in al-Dhikra that our earlier scholars did not mention niyyah in their books on fiqh. They would state: ‘The first wajib in wudu’ is washing the face, the first wajib in salat is takbirat al-ihram’. The reason for this is that that which is essential in regard to niyyah is something inescapable, and anything in addition to it is not wajib. That which confirms this is that niyyah has not been mentioned in the context of any of the ‘ibadat – and particularly not in their case – and the traditions describing the wudu, ghusl and tayammum of the Prophet (S) do not make any mention of it.

2. Takbirat al-Ihram

Salat does not materialize without ‘takbirat al-ihram.’ Its name derives from the statement of the Prophet (S):

مفتاح الصلاة الطهور و تحريمها التكبيرة و تحليلها التسليم.

Taharah (purity) is the key to salat; its consecration (tahrim) is the takbirah; and its termination (tahlil) is taslim.

It means that with takbirat al-ihram it becomes haram to speak and perform any act incompatible with salat, and by reciting taslim those acts which were prohibited after reciting the takbir become permissible again.

Its formula is ‘Allahu akbar’, and according to the Imamis, Malikis and Hanbalis no other form is permissible. The Shafi’is observe: Both "Allahu akbar", and "Allahu al-’akbar” (with the addition of alif and lam to "akbar") are permissible. The Hanafis state: Any other synonymous words such as ‘Allahu al-’a’zam’ and ‘Allahu al-’ajall’ will do.

All the schools, excepting the Hanafi, concur that it is wajib to recite it in Arabic, even if the musalli is a non-Arab. If he cannot, it is obligatory for him to learn it; and if he cannot learn, he may translate it into his own tongue. The Hanafis observe: It is valid to recite it in any language even if one can recite it in Arabic.

There is consensus among the schools that at the time of reciting takbirat al-ihram all the conditions necessary for salat (such as taharah, facing the qiblah, covering the body etc.) should be present, and that it should be recited - when one has the ability to do so - while standing stationarily, and in a voice that he can hear. The word ‘Allah’ should precede ‘akbar’, and the reverse, ‘akbar Allah’, will not suffice for entry into qiyam.

3. Qiyam (standing)

The schools concur that qiyam is wajib in the obligatory salats from the beginning of takbirat al-ihram until going to ruku’, and that standing uprightly, stationarily and independently are its requisites.

Hence it is not valid to recline on any support when one is able to stand without it. If one cannot stand, he may perform salat sitting, and if this too is not possible, while laying down on the right side facing the qiblah (in the same position that a dead body is placed in the grave).

This is the opinion of all the schools except the Hanafis, who state: A person who cannot sit will perform salat laying down on his back with his feet pointing towards the qiblah, so that his gestures in lieu of ruku’ and sajdah are made towards the qiblah.

If it is not possible to perform salat while laying on the right side, the Imamis, Shafi’is and Hanbalis permit him to perform salat laying on his back by making gestures with his head. If gesturing with the head is not possible, he will gesture with the eyelids.

The Hanafis say: If his state is as bad as that, the duty of salat will no longer apply to him, though he will have to perform it qada’ when his condition improves and the hindrance is removed.

According to the Malikis, a sick person such as this is not required to perform salat and it is also not wajib for him to perform its qada’.

The Imamis, Shafi’is and Hanbalis state: The duty of salat does not disappear in any situation; if he is unable to gesture by blinking his eyes he will pass the salat through his mind and move his tongue for reciting the qira’ah and dhikr. If he is unable to move the tongue he will imagine it in his mind as long as his mind works. To sum up, salat is wajib upon those who are fully capable and those who are not so capable. It may not be neglected in any situation, and every person must perform it in accordance with his ability.

Hence it is performed while standing, then sitting, then laying down on one’s side, then laying down on one’s back, then gesturing by blinking the eyes, and passing it through the mind, in that order. A fully capable person as well as one not capable will move from the previous state to the new situation which has come into existence. Hence if a fully capable person loses his ability during salat or one not capable regains it, either of them will perform the remaining part in accordance with his ability.

Therefore, if he performs one rak’ah (unit) standing and is then unable to stand, he will complete it sitting, and if he performs the first rak’ah sitting and then regains the strength to stand, he will complete the remaining salat standing.

4. Qira’ah (reciting)

The schools differ whether the recitation of Surat al-Fatihah is wajib in every rak’ah (unit), or in the first two rak’ahs, or in all the rak’ahs without there being any other alternative. They give different answers to the following questions: Is the bismillah an essential part of al-Fatihah or is it valid to omit it? Is it wajib or mustahabb to recite aloud or in a low voice? Is it wajib to recite another surah after al-Fatihah in the first two rak’ahs? Can the tasbih1 replace the surah? Is takattuf (the folding of arms during salat) a sunnah or is it haram? And so on.

The Hanafis observe: It is not compulsory to recite only Surat al-Fatihah in the daily obligatory salats, and anything recited from the Qur’an may take its place, because God the Exalted, says:

فاقرَأوا ما تيَسَّرَ من القُرآن

‘Therefore recite of the Qur’an so much as is feasible’ (73:20) (Bidayat al-mujtahid, vol.1, p.122 and al-Shi’rani’s Mizan, "bab sifat al-salat").

The recital from the Qur’an is wajib in the first two rak’ahs; but in the third rak’ah of the maghrib prayer and the last two rak’ahs of ‘asr and ‘isha’ prayer there is an option between reciting from the Qur’an or saying the tasbih or keeping quiet (al-Nawawi, Sharh al-Muhadhdhab, vol.3, p.361).

Moreover, the Hanafis say: It is valid to skip the basmalah because it is not a part of any surah. Neither reciting aloud nor in a low voice are mustahabb, and a musalli praying alone is free to recite in a voice that he alone can hear or in a voice hearable to others. There is no qunut in salat with the exception of salatal-watr. As to takattuf, it is masnun (a sunnah) but it is not wajib, and its preferable form is for a man to place the palm of his right hand on the back of his left hand below the navel, and for a woman to place her hands on her chest.

The Shafi’is state: Surat al-Fatihah is wajib in every rak’ah, without there being any difference in this regard between the first two rak’ahs and the other rak’ahs and between wajib and mustahabb salats.

The basmalah is a part of the surah and cannot be omitted in any circumstance. The recitation should be aloud in the morning prayer and the first two rak’ahs of maghrib and ‘isha’ prayers; the remaining recitals are to be in a low voice. The qunut is mustahabb only in the morning prayer, and is to be performed after rising from the ruku’ of the second rak’ah. Similarly, it is mustahabb to recite another surah after al-Fatihah only in the first two rak’ahs. Takattuf is not wajib but a sunnah for both the sexes, and its preferable form is to place the right hand palm on the back of the left hand between the chest and the navel and towards the left side.

According to the Malikis, reciting Surat al-Fatihah is necessary in every rak’ah, without there being any difference in this regard between the earlier and later rak’ahs and between fard and mustahabb salats, as observed earlier by the Shafi’is. It is mustahabb to recite another surah after al-Fatihah in the first two rak’ahs.

The basmalah is not a part of the surah and it is mustahabb to omit it altogether. Reciting aloud is mustahabb in the morning prayer and the first two rak’ahs of maghrib and ‘isha’ prayers. Qunut is to be recited only in the morning prayer.

Takattuf is valid in their opinion, though it is mustahabb to keep the hands hanging freely in the fard prayers.

The Hanbalis consider al-Fatihah to be wajib in every rak’ah, and to recite a surah after it in the first two rak’ahs as mustahabb. The morning prayer and the first two rak’ahs of maghrib and ‘isha’ prayers are to be recited aloud. The basmalah is a part of surahs though it will be recited in a low voice and not aloud. Qunut is to be recited in Salat al-watr and not in any other salat. Takattuf is a sunnah for both men and women and its preferable form is to place the right hand palm on the back of the left hand below the navel.

It is evident that takattuf, which the Sunni legists call ‘qabd’ and the Shi’a legists call ‘takfir’ - i.e. to conceal - is not wajib in the opinion of any of the four Sunni schools.

The Imamis state: Reciting Surat al-Fatihah is necessary in the first two rak’ahs of every salat and no other surah can replace it. But it is not wajib in the third rak’ah of maghrib and the last two rak’ahs of four-rak’ah prayers; rather, one has an option between it and tasbih. Tasbih means the recitation of:

سبحان الله و الحمد لله و لا الهَ الا الله و الله اكبر

thrice, though even once is sufficient. It is wajib to recite another complete surah in the first two rak’ahs, and the basmalah is a part of the surahs which cannot be omitted in any circumstance.

It is wajib to recite aloud only the surahs and not the other recitations in the morning prayer and the first two rak’ahs of maghrib and ‘isha’ prayers. The qira’ah in zuhr and ‘asr prayers is to be done, except for the basmalah, in a low voice in their first two rak’ahs and also in the third rak’ah of maghrib and the last two rak’ahs of ‘isha’ prayers.

Qunut is mustahabb in the five daily prayers and its place is the second rak’ah after the recital of the surahs and before ruku’. The minimum level of voice considered ‘loud’ is that a person nearby be able to hear it, and the minimum for ‘low’ voice is that the person himself be able to hear it. The schools concur that reciting aloud is not prescribed for women, nor is reciting in a voice lower than what can be heard by herself. If a musalli voluntarily recites loudly something which is to be recited in a low voice and vice versa, his/her salat will be invalid, if this is not done due to ignorance or forgetfulness.

The Imamis also considers saying "Ammin” (Amen) during salat to be haram and doing so invalidates the salat, irrespective of whether one is praying individually or in group prayer as an imam or ma’mum,because it is something adopted by the people, and nothing adopted by people is capable of being included in the salat.

The four Sunni schools concur that it is mustahabb in accordance with the narration of Abu Hurayrah that the Prophet (S) said:

When the imam says, "ghayr il maghdubi ‘alaymhim wa la-ddallin,’ then say: "Ammin."

The Imamis negate the authenticity of the above tradition.

Most Imamis consider takattuf (putting hands over each other) renders the salat invalid (batil) because there is no explicit text (nass) in support of it. However, some of them say: Takattuf is haram and the one who does it has committed sin, though his salat is not invalid. A third group from among them observe: It is makruh (discouraged) and not haram.

5. Ruku’ (bowing)

There is consensus among the schools that ruku’ is obligatory (wajib) in salat but they differ regarding the extent to which it is wajib and the necessity of staying motionless in that position. The Hanafis observe: What is obligatory is to bend down in any possible manner, and staying motionless is not obligatory. The remaining schools consider it obligatory to kneel down until the palms of the hands of the musalli reach his knees and to stay motionless during bowing.

The Shafi’is, Hanafis and Malikis state: It is not obligatory to recite anything during ruku’, though it is sunnah that the musalli say: "Subhana Rabbi al-’azim”.
The Imamis and the Hanbalis consider tasbih to be obligatory during ruku’ and its formula in the opinion of the Hanbalis is "Subhana Rabi al-’azim", and according to the Imamis "Subhana Rabbi al-‘azim wa bi hamdih” or just "SubhanAllah” thrice. It is encouraged (mustahabb) in the opinion of the Imamis to add after the tasbih, a benediction for Muhammad (S) and his Family (Allahumma salli ‘ala Muhammadin wa Ale Muhammad).

The Hanafis say: It is not obligatory to return to the standing position after ruku’, and it is sufficient, though makruh (discouraged), to perform sajdah (prostration) straightaway. The other schools consider it obligatory to return to the standing position and mustahabb to recite the tasmi’, which is to say: "Sami ‘allahu li man hamidah” (God hears one who praises Him). According to the Imamis, it is obligatory to stay motionless in this standing (qiyam).

6. Sujud (prostration)

There is consensus among the schools that sujud (prostration) is obligatory twice in each rak’ah. They differ regarding its details, as to whether itis obligatory to prostrate with all the seven parts of the body touching the ground while performing it or if it is sufficient to lay on the ground only some of them. These seven parts are: the forehead, the palms, the knees and the big toes.

The Malikis, Shafi’is and Hanafis state: It is obligatory to lay only the forehead on the ground in sujud, and laying down the other parts is encouraged (mustahabb).

The Imamis and the Hanbalis observe: It is obligatory to lay on the ground all the seven parts while performing sujud. It has been narrated from the Hanbalis that they add the nose to these seven, thus making them eight. The difference of opinion regarding reciting tasbih and being motionless during sujud is similar to the difference mentioned concerning ruku’. Those who consider them obligatory there, consider them here as well.

The Hanafis do not consider it obligatory to sit between the sajdahs; the remaining schools consider it obligatory.

7. Tashahhud

Tashahhud is at most recited twice in salat; the first, after the second rak’ah of zuhr, ‘asr, maghrib and ‘isha’ prayers, which is not followed by taslim; the second in the last rak’ah of the two-, three-, and four- rak’ah prayers, which is followed by taslim.

The Imamis and the Hanbalis state: The first tashahhud is wajib. The remaining schools consider it mustahabb and not wajib. The second tashahhud is considered wajib by the Shafi’is, Imamis and Hanbalis, and mustahabb by the Malikis and Hanafis (Bidayat al-mujtahid, vol.1, p.125).

The following are the forms of tashahhud observed by the different schools:

The Hanafis

التحيات لله والصلوات والطيّبات، والسلام عليك أيّها النبي ورحمة الله وبركاته، السلام علينا وعلى عباد الله الصالحين، أشهد أن لا إله إلاّ الله، وأشهد أنّ محمداً عبده ورسوله

"attahiyyatu lillahi wassalawatu wattayyibatu wassalamu ‘alayka ayyuhaannabiyyu warahmatullahi wabarakatuhu,assalamu ‘alayna wa ‘ala`abadillahi assaliheena, ash-hadu anna la ilaha illa Allah, waAsh-haduanna Mohammmedan ‘abduhu warasuluhu."

The Malikis

التحيات لله الزاكيات لله الطيّبات الصلوات لله، السلام عليك أيّها النبي ورحمة الله وبركاته، السلام علينا وعلى عباد الله الصالحين، أشهد أن لا إله إلاّ الله وحده لا شريك له، وأشهد أنّ محمداً عبده ورسوله

"Attahiyyatu lillah, azzakiyyatu lillah, attayyibatu assalawatu lillah.Assalamu alayka ayyuha annabiyyu warahmatu allahi wabarakatuhu,assalamu alayna wa ‘ala ‘abadi Allahi assaliheena, ash-hadu anna la ilaha illa Allah, wa ash-hadu anna muhammadan ‘abduhu warasuluhu.

The Shafi’is

التحيات المباركات الصلوات الطيبات لله، السلام عليك أيّها النبي ورحمة الله وبركاته، السلام علينا وعلى عباد الله الصالحين، أشهد أن لا إله إلاّ الله، وأشهد أنّ سيدنا محمداً رسول الله

"Attahiyyatu almubarakatu assalawatu attayyibatu lillah, assalamu ‘alayka ayyuha annabiyyu warahmatu allahi wabarakatuhu, assalamu alayna wa ‘ala ‘abadi allahi assalaiheena.Ash-hadu anna la ilaha illa Allah, wa ash-hadu anna sayyidana muhammadan rasulu Allah."

The Hanbalis

التحيات لله والصلوات والطيبات، السلام عليك أيّها النبي ورحمة الله وبركاته، السلام علينا وعلى عباد الله الصالحين، أشهد أن لا إله إلاّ الله وحده لا شريك له، وأشهد أنّ محمداً عبده ورسوله، اللّهم صلِّ على محمد

"Attahiyyatu lillahi wa-assalawatu wa-attayyibatu. assalamu ‘alayka ayyuha annabiyyu warahmatu allahi wabarakatuhu, assalamu alayna wa ‘ala ‘abadi allahi assalaiheena. Ash-hadu anna la ilaha illa Allah, wahdahu la shareekalah,wa ash-hadu anna sayyidana muhammadan ‘abduhu wa- rasuluhu. Allahumma salli ala Muhammadin."

The Imamis

أشهد أن لا إله إلاّ الله وحده لا شريك له، وأشهد أنّ محمداً عبده ورسوله، اللّهم صلِّ على محمد وآل محمد

"Ash-hadu anna la ilaha illa Allah, wahdahu la shareeka lah,wa ash- hadu anna muhammadan ‘abduhu wa-rasuluhu. Allahumma salli ala Muhammadin wa ‘‘Ali Muhammad."

8. Tasleem

The Shafi’is, Malikis, and Hanbalis observe: Tasleem is wajib (obligatory). The Hanafis do not consider it wajib (Bidayat al-Mujtahid, vol.1, p.126).

The Imamis differ among themselves, a group considers it wajib, while others, including al-Mufid, al-Shaykh al-Tusi and al-’Allamah al-Hilli, regard it as mustahabb.

Tasleem (farewell) has only one form in the opinion of the four Sunni schools, and it is:

السلام عليكم ورحمة الله

"Assalamu alaikum warahmatu allah".

The Hanbalis say: It is obligatory to recite it twice. The others consider reciting once as sufficient.

The Imamis state: Tasleem consists of two formulas; the first is:

السلام علينا وعلى عباد الله الصالحين

"Assalamu alaina wa ‘ala ‘ibadi allahi assaliheen".

The second:

السلام عليكم ورحمة الله وبركاته

"Assalamu alaikum wa rahmatu allahi wa barakatuh".

One of them is wajib. Hence if a person recites the former, the latter will be mustahabb, and if he recites the latter, he will stop at it. As to:

السلام عليك أيّها النبي ورحمة الله وبركاته

"Assalamu alaika ayyuha annabiyyu wa rahmatu allahi wa barakatuhu", it is not a part of tasleem, and is a mustahabb addition to the tashahhud.

9. Sequence (tartib)

Proper sequence (tartib) is wajib between the different parts of salat. Hence the takbirat al-ihram must precede reciting (qira’ah), the qira’ah must precede ruku’, the ruku’ must come before the sujud, and so on.

10. Continuity

Continuity (muwalat and tatabu’, i.e. to occur one after another) is wajib between the parts of salat and between the different portions of a part. Therefore, the reciting (qira’ah) must begin immediately after the takbirah and ruku’ must similarly follow the qira’ah, and so on. The verses, words and letters must not be recited in a manner breaking continuity.

- 1. ‘tasbih’ means: saying "subhanallah wal-hamdu lillah wala ilaha illallahwallahu akbar”which is usually recited three times in the third and theforth rak’ahs (units).Also ‘qunut’ means rasing both hands toward the sky and holding them infront of the chest or face and then reciting a supplication, like askingfor forgiveness. It could be some verses of Qur’an or not. However it should be in Arabic for obligatory prayers.

Error and Doubt During Salat

The schools concur that a wilful violation of any wajib act in prayer invalidates it. However mistake (sahw) can be compensated by performing sujud al-sahw as described below.

The Hanafis state: The form of sujud al-sahw is that the musalli should perform two sajdahs followed by the recitation of tashahhud and taslim, prayer and benediction for the Prophet (S). This sujud should be performed after the taslim, provided there is sufficient time (for the salat).

Hence if, for instance, someone makes an involuntary error in al-fajr prayer and finds that the sun has risen before his performing sujud al-sahw, he is not required to perform it any more. The cause necessitating sujud al-sahw is the musalli’s omitting an obligatory part or repeating an essential part (rukn) --such as ruku’ or sujud. If numerous lapses occur (in a single salat), the two sajdahs will suffice for them all, because their repetition is not valid in their opinion. And if there occurs a lapse in the sujud al-sahw it requires no rectification (Majma’ al-’anhur, vol.1, "bab sujud al-sahw").

The Malikis observe: In its form, sujud al-sahw consists of two sajdahs followed by tashahhud without any supplication and benediction for the Prophet (S). As to the place of this sujud, in the event that it is on account of an omission or due to both an omission and an addition, it will be performed before the taslim; but if the cause is only an addition, then after the taslim.

Moreover, sujud al-sahw atones for an involuntary omission of a mustahabb part of salat; hence if the omitted part is a fard (obligatory) part of salat, it cannot be compensated by sujud al-sahw and must be performed.

However, if the mistake is one of involuntary addition -- such as an extra ruku’ or two, or one or two additional rak’ahs -- it is atonable by sujud al-sahw.

The Hanbalis say: It is valid to perform sujud al-sahw before or after the taslim. It consists of two sajdahs followed by tashahhud and taslim. Its causes are involuntary addition or omission as well as doubt. An example of addition is to perform an additional qiyam (standing) or qu’ud (sitting). One who sits where he is supposed to stand or vice versa will perform sujud al-sahw.

Where there is an omission, the following procedure is to be followed in their opinion. If he remembers the omission before starting the qira’ah of the next rak’ah, it is wajib for him to perform the part omitted as well as sujud al-sahw; and if he comes to remember it only after starting the qira’ah of the next rak’ah, the former rak’ah will be annulled and the latter will take its place and sujud al-sahw will also be performed.

To illustrate the same, if a person forgets ruku’ in the first rak’ah and becomes aware of it after performing the sujud (of the same rak’ah), he will perform the ruku’ and then repeat the sujud, and if he becomes aware of it only after starting the qira’ah of the second rak’ah, the former rak’ah will be considered null and void and the second rak’ah will take its place.

An example of doubt necessitating sujud al-sahw is the case when one doubts whether he has performed the ruku’, or has a doubt regarding the number of rak’ahs performed. Here he will consider that portion of the salat he is sure of having performed as the basis and will perform the remaining, and carry out sujud al-sahw on finishing it. Two sajdahs suffice for several mistakes, even if their causes differ, and a lapse committed by someone prone to making mistakes will not be considered a lapse.

According to the Shafi’is, the place of sujud al-sahw is after the tashahhud and benediction of the Prophet (S) and before the taslim. Its mode of performance is like the one prescribed by the above-mentioned schools. The reasons for its performance are: omission of an emphasized (mu’akkadah) sunnah, a little additional recital, the recital of al-Fatihah by mistake, the following of an imam whose salat is vitiated, a doubt in the number of rak’ahs, and the omission of a specific part.

The Imamis differentiate between the rules applicable to cases of doubt and those applicable to errors. They state: No attention will be paid to a doubt arising concerning any act of salat after its completion, or the doubt of a ma’mum regarding the number of rak’ahs if the imam has ascertained their number and vice versa, with each of them referring to the memory of the other.

No significance is attached to the doubts of a person who doubts excessively, and similarly to a doubt with respect to any act of salat arising after entry into its subsequent act. Hence if a doubt occurs regarding the reciting (qira’ah) of al-Fatihah after starting the qira’ah of the subsequent surah, or regarding the surah after having gone into the ruku’, or with respect to the ruku’ after having entered the sajdah, the salat will be continued without heeding the doubt.

But if the doubt occurs before starting the performance of the subsequent act, it is wajib to rectify it. Hence a person who has doubt regarding the recital of al-Fatihah before starting the subsequent surah, will recite it, and similarly the surah if he has a doubt concerning its recital before entering the ruku’.

As to sujud al-sahw, it should be done for every omission and addition, except for reciting aloud instead of in a low voice and vice versa -- as it does not entail anything -- and except for any omission or addition that does not pertain to the essentials (arkan) of salat because their omission or addition invalidates the salat irrespective of its being wilful or by mistake.

The arkan, in their opinion, are the following five: niyyah (intention), takbirat al-ihram, qiyam, ruku’ and the two sajdahs of a rak’ah. It is not obligatory to perform any part omitted by mistake after the salat except sajdah and tashahhud, which are alone required to be performed among the forgotten parts.

These will be performed after the completion of the salat followed by sujud al-sahw, which consists of making two sajdahs and reciting

بسم الله وبالله، اللّهم صلّ على محمد وآل محمد

in the state of prostration, followed by tashahhud and taslim.

The number of sujud al-sahw required is equal to the number of causes entailing it. They consider the mistake of a person committing excessive mistakes and a mistake committed while rectifying one, as no mistake.

Doubt in the Number of Rak’ahs

The Shafi’is, Malikis and Hanbalis observe: If the musalli has a doubt regarding the number of rak’ahs performed, he will consider the number of rak’ahs he is certain of having performed as the base and will complete the salat by performing the rest.

The Hanafis state: If the musalli’s doubt in salat is for the first time in his life, he will repeat it from the beginning. But if it occurs to him that he has doubted in salat earlier as well, he will think for quite a while and will act in accordance with what seems more probable to him. But if the doubt remains (even after thinking), he will consider the number of rak’ahs he is certain of having performed as the base.

The Imamis state: If the doubt concerning the number of rak’ahs performed occurs in a two-rak’ah salat (such as salat al-subh, the salat of a traveler, salat al-jumu’ah, salat al-’idayn and salat al- kusuf, or in salat al-maghrib or in the first two rak’ahs of ‘isha’, zuhr and ‘asr prayers, the salat will become invalid and it will be wajib to start it again from the beginning. But if the doubt occurs in the rak’ahs subsequent to the first two rak’ahs of the four-rak’ah prayers, he will perform salat al-ihtiyat after completing the salat and before performing any act incompatible with salat.

For example, if a doubt arises after the completion of the two sajdahs of the second rak’ah as to whether it is the second or the third rak’ah, he will take the greater number of rak’ahs as his basis and complete the salat. He will then perform as ihtiyat (caution) a single rak’ah while standing or two rak’ahs while sitting. If the doubt concerns his being in third or fourth rak’ah, he will consider it the fourth rak’ah and complete the salat and follow it up with a single rak’ah standing or two rak’ahs sitting by way of caution.

If the doubt concerns his being in second or fourth rak’ah, he will consider it the fourth rak’ah. He will then offer two rak’ahs standing. If there is a doubt regarding its being second, third or fourth rak’ah, he will assume it to be the fourth rak’ah, and offer following it two rak’ahs standing and two rak’ahs sitting.

According to them, the reason for performing these rak’ahs is to preserve the prescribed form of salat and avoid additions and omissions. Their point is illustrated by the example of a person who has a doubt between its being third or fourth rak’ah. He will consider it to be the fourth rak’ah and perform a single rak’ah separately after completing the salat. If his salat has been complete, the additional rak’ah performed separately will be considered as nafilah, and if the salat had been incomplete, the separate rak’ah will complement it.

However, this manner of performing salat al-ihtiyat (cautionary prayer) is particular to the Imamis. They limit this procedure to the obligatory salats, and among them to zuhr, ‘asr and ‘isha’ prayers only. As to the nafilah prayers, the musalli is free to consider the minimum or maximum rak’ahs probably performed as the basis, provided such supposition does not invalidate the salat (such as where he doubts his being in second or third rak’ah with the knowledge that the nafilah comprises only two rak’ahs; here he will consider the minimum number of rak’ahs probably performed as the basis).

It is better in all mustahabb prayers to consider the minimum ascertainable number of rak’ahs as the basis. If a doubt concerning rak’ahs arises in salat al-ihtiyat, the maximum number of rak’ahs probably performed will be made the basis, except where doing so invalidates the salat, in which case the minimum number of rak’ahs will be the basis. Some Imamis observe: One is free to choose as the basis either the minimum or maximum rak’ahs probably performed.

The Friday Prayer

Its Wujub (necessity)

There is consensus among all the Muslims regarding the Friday prayer (salat al-jumu’ah) being wajib in accordance with the words of God, the Exalted:

يَاأَيُّهَا الَّذِينَ آمَنُوا إِذَا نُودِي لِلصَّلاَةِ مِنْ يَوْمِ الْجُمُعَةِ فَاسْعَوْا إِلَى ذِكْرِ اللَّهِ وَذَرُوا الْبَيْعَ

O believers, when proclamation is made for prayer on the Day of Congregation (yawm al-jumu’ah) hasten to God’s remembrance and leave trading aside (Qur’an 62:9)

as well as the mutawatir traditions narrated both by Shi’i and Sunni sources.

They differ as to whether its wujub is conditional to the presence of the ruler or his deputy in it or if it is wajib unconditionally.

The Hanafis and the Imamis state: The presence of the ruler or his deputy is necessary; the Friday prayer is not wajib if neither of them is present. The Imamis require the ruler to be just (‘adil); otherwise his presence is equal to his absence. To the Hanafis, his presence is sufficient even if he is not just.

The Shafi’is, Malikis and Hanbalis attach no significance to the presence of the ruler, and a large number of Imamis observe: In the absence of a ruler or his representative and the presence of a just faqih, there exists an option between performing either the Friday or the zuhr prayer, although preference lies with the performance of Friday prayer.1

Conditions

The schools concur that the requirements for other salats (such as taharah, covering the body, and facing the qiblah) also apply to Friday prayers, that its time is from when the sun crosses the meridian up to when the shadow of an object equals its height, and that it can be performed in a mosque as well as any other place, except in the opinion of the Malikis who don’t consider it valid except in a mosque.

There is also consensus that it is wajib for men and not for women, and that one who performs is not required to perform the zuhr prayer, and that it is not wajib for the blind, and that it is not valid except when performed in jama’ah (congregation).

They differ regarding the minimum number of persons required to form a jama’ah; the Malikis state: Its minimum is 12, excluding the imam. The Imamis consider it to be 4, excluding the imam. In the opinion of the Shafi’is and Hanbalis, it is 40, including the imam; according to the Hanafis it is 5, though some of them say it is 7.

The schools, except the Hanafi, concur in its being prohibited for someone upon whom the Friday prayer has become wajib and its conditions fulfilled, to travel after the sun has crossed the meridian before performing it. The Hanafis allow it.

The Friday Sermons

There is consensus that the two sermons are required for convening the Friday prayer and that they are to be delivered before the salat, though after the setting in of its time and not earlier. They differ regarding the wujub of standing while delivering them. The Imamis, Shafi’is and Malikis require it, but not the Hanafis and Hanbalis.

As to their content, the Hanafis say: The sermon will be considered delivered even by a minimal dhikr, such as uttering "al-hamdulillah” or "astaghfirullah", though such brevity is makruh.

The Shafi’is observe: It is necessary in both the sermons to praise God, invoke blessings on the Prophet (S), to exhort to piety, to recite a verse in at least one of the sermons, though reciting it in the first is better, and to supplicate for the faithful in the second sermon.

According to the Malikis anything considered by custom as a sermon suffices, provided it includes exhortation and announcement of good news.

The Hanbalis consider it essential to praise God, invoke blessings on the Prophet (S), recite a verse and counsel piety.

The Imamis state: It is wajib in each of the sermons to praise and extol God, invoke blessings on the Prophet (S) and his Family (A), preach, and recite something from the Qur’an, and in the second sermon, to implore God’s forgiveness and to pray for the faithful.

The Shafi’is and Imamis observe: It is wajib for the preacher to separate the two sermons by sitting down for a short while between them.
The Malikis and Hanafis consider it mustahabb.

According to the Hanbalis, the sermon should be delivered in Arabic, if possible.

The Shafi’is consider Arabic necessary if the people are Arabs, and if they are non-Arabs, the preacher should preach in their language even if he is well-versed in Arabic.

The Malikis say: It is wajib to preach in Arabic even if the people are non-Arabs and do not understand a word of Arabic. If there is no one among them who knows Arabic, there is no obligation to perform the Friday prayer.

The Hanafis and the Imamis do not consider Arabic a condition for delivering the sermons.

Its Mode of Performance

The Friday prayer comprises two units (rak’ahs), just like the morning prayers. The Imamis and the Shafi’is observe: After Surat al-Hamd of each rak’ah, it is mustahabb to recite Surat al-Jumu’ah in the first rak’ah and Surat al-Munafiqun in the second.

The Malikis state: Surat al-Jumu’ah will be recited in the first rak’ah and Surat al-Ghashiyah in the second. According to the Hanafis, it is makruh to confine to a particular surah.

- 1. Al-Shahid al-Thani in al-Lum’ah, vol.1, “bab al-salat”, fasl 6, observes: The wujub of salat al-jumu’ah duing the occultation of the Imam is obvious in the opinion of most ‘ulama’... and if there has been no claim of ijma’ regarding its not being wajib, the opinion that it is wajib ‘ayni would have been extremely strong. Therefore, the least that can be said is that there is an option between it (salat al-jumu’ah) and the zuhr prayer, with the Jumu’ah (prayer) enjoying preference”.

The ‘Id Prayers

The schools differ concerning the prayers performed on the two ‘Ids (festivals), al-Fitr and al-’Adha, as to whether they are obligatory (wajib) or recommended (mustahabb). The Imamis and the Hanafis observe: It is wajib for every individual if the conditions mentioned in Friday prayer are fulfilled. If some or all of these conditions do not exist, there is no obligation in the opinion of the two schools, except that the Imamis add:

In the absence of conditions necessary for its wujub, one can perform it as mustahabb either singly or in jama’ah, during both journey and stay.

According to the Hanbalis it is fard kifa’i. The Shafi’is and the Malikis consider it a highly recommended practice (sunnah mu’akkadah).

In the opinion of the Imamis and the Shafi’is its time is from sunrise until the sun crosses the meridian. According to the Hanbalis, its time is from when the sun rises to the height of a spear until it crosses the meridian.

The Imamis say: Delivering of two sermons is wajib here as in the Friday prayer. The other schools consider it as mustahabb. All the schools concur that the sermons are to be delivered after the salat, as against the Friday prayer, in which they are delivered earlier.

According to the Imamis and the Shafi’is it can be validly performed individually as well as in jama’ah. The other schools consider perfoming in jama’ah is necessary for salat al-’ld.

As to the mode of its performance, it comprises two units (rak’ahs) performed differently by the various schools in the following manner:

The Hanafis

Takbirat al-ihram will be said after making the niyyah, followed by the praise of God. Then will follow three more takbirahs, with an interval of silence equaling three takbirahs, and it is also correct to say:

سبحان الله والحمد لله ولا إله إلاّ الله والله أكبر

"Subhana Allahi wa alhamdu lillahi wa la ilahailla Allah wa Allahu Akbar".

Then will follow the recital of Surat al-Fatihah, another surah, then ruku’ and sujud, in that order. The second rak’ah will begin by reciting Surat al-Fatihah, which will be followed by another surah, three takbirahs, ruku’ and sujud. After this the salat will be completed.

The Shafi’is

After saying the takbirat al-ihram, the Du’a’ al-Istiftah1 will be recited, followed by seven takbirahs, reciting after every two of them in a low voice:

سبحان الله والحمد لله ولا إله إلاّ الله والله أكبر

"Subhana Allahi wa alhamdu lillahiwa la ilaha illa Allah wa Allahu Akbar”;
then after ta’awwudh

اعوذ بالله من الشيطان الرجيم

(A’udhubillahi mina al-shaitani al-Rajeem), al-Fatihah and Surat Qaf will be recited, followed by ruku’ and sujud.

After standing up for the second rak’ah and saying a single takbirah for it, five more takbirahs will be added, reciting after every two of them:

سبحان الله والحمد لله ولا إله إلاّ الله والله أكبر

"Subhana Allahi wa alhamdulillahi wa la ilaha illa Allah wa Allahu Akbar".
This will be followed by al-Fatihah and Surat Iqtarabat, and then the salat will be completed.

The Hanbalis

The Du’a’ al-Istiftah will be recited followed by six takbirahs reciting after every two of them in a low voice:

الله أكبر كبيراً، والحمد لله كثيراً، وسبحان الله بكرة وأصيلاً، وصلّى الله على محمد وآله وسلم تسليماً

"Allahu akbaruKabeera, wa alhamdu lillahi katheera, wa subhana allahi bukratan waaseela, wa salla allahu ala Muhammadin wa alihi wa sallama tasleema".

This will be followed by ta’awwudh, basmalah, al-Fatihah and Surat Sabbihisma Rabbik.

The rak’ah will be then completed. Upon standing up for the second rak’ah, five takbirahs, apart from the takbirah for the qiyam, will be said, reciting after every two of them what was mentioned concerning the first rak’ah. Then the basmalah will be followed by Surat al-Ghashiyah and ruku’ and the salat will then be completed.

The Malikis

After the takbirat al-ihram, six more takbirahs will be said, followed by al-Fatihah, Surat al-A’la, ruku’ and sujud. Then standing up for the second rak’ah and saying the takbirah for it, five more takb’irahs will be said, followed by al-Fatihah, Surat al-Shams or a similar surah; the salat will then be completed.

The Imamis

The takbirat al-ihram will be followed by al-Fatihah and another surah. Then five takbirahs will be said with qunut (raising and holding hand in front of body for supplication) after each of them, then ruku’ and sujud will follow. After standing up for the second rak’ah, al-Fatihah and another surah will be recited, followed by four takbirahs, each of them followed by qunut. Then the ruku’ will be performed and the salat completed.

- 1. According to the Sunni schools, Du’a al-Ifititah or Du’a al-Istiftah is:
سبحانك اللّهم وبحمدك وتبارك اسمك وتعالى جدّك ولا إله غيرك

The Prayer of the Eclipses

The four Sunni schools observe: The solar- and lunar- eclipse prayer is an emphasized sunnah, but not wajib.The Imamis state: It is obligatory for every mukallaf (sane mature person).

It does not have a special form in the opinion of the Hanafis; rather it is to be performed in two rak’ahs like a nafilah prayer, each rak’ah comprising a single qiyam and ruku’. The musalli is free to perform it in two, four, or more rak’ahs.

According to the Hanbalis, Shafi’is and Malikis, it has two rak’ahs, with each rak’ah having two qiyams and two ruku’s. After the takbirat al-ihram, al-Fatihah and another surah will be recited, followed by ruku’: After rising from the ruku’al-Fatihah and another surah will be recited, followed by ruku’ and sujud. Then standing up for the second rak’ah, it will be performed like the first, and the salat completed. It is also valid to perform it in the manner of a nafilah salat.

There is consensus that it can be performed singly as well as in jama’ah, except that the Hanafis observe regarding the lunar eclipse prayer: It has not been enacted for jama’ah, and has to be performed singly, at home.

As to its time, all the schools excepting the Malikis concur that it begins and ends with the eclipse. The Malikis say: Its time begins when the sun is at a spear’s height above the horizon and continues until noon.

The Hanafis and the Malikis say: A two-rak’ah salat is recommended at the time of any fearsome incident, such as an earthquake, thunderbolt, unusual darkness, epidemic, etc.

According to the Hanbalis, it is recommended only for earthquakes. The schools concur that this salat does not have an adhan and Iqamah, though an announcer will call out "al-salat” three times according to the Imamis, and "al-salat jami’ah” according to the other schools.

The Imamis observe: The salat is wajib upon every individual during solar and lunar eclipses, earthquakes, and on the occurrence of all unsettling celestial phenomena such as the sky’s darkening or becoming extraordinarily red, strong winds, big sounds, etc.

If performed in jama’ah, the imam will recite only the surahs on behalf of those following him, just as in the daily prayers.The time for performing the salat for solar and lunar eclipses is the period of their occurrence, and one who does not perform them at that time will perform them later as qada’.

There is no specific time for salats to be performed consequent to earthquakes and similar fearsome incidents; rather, it is wajib to perform these salats as soon as they occur, though in the event of delay they can be performed as ada’ as long as one is alive.

Its mode of performance is that after takbirat al-ihram, al-Fatihah and another surah are recited, followed by ruku’. Upon rising from the ruku’, al-Fatihah and a surah will be repeated, followed again by ruku’. This will continue until five ruku’s are performed, and they will be followed by two sajdahs. On standing up for the second rak’ah, al-Fatihah and another surah will be recited, followed by a ruku’; this will be repeated till five ruku’s are performed in the second rak’ah as well. Then will follow two sajdahs, tashahhud, and tasleem.

Thus altogether there are ten ruku’s, and every five of them is followed by two sajdahs, both in the first and the second rak’ahs.

Prayer For Rain

Prayer for rain (salat al-’istisqa’) has been expressly mentioned in the Qur’an and the Sunnah, and there is consensus concerning it. God Almighty says:

وَإِذْ اسْتَسْقَى مُوسَى لِقَوْمِهِ...

When Moses prayed for water for his people,... (Qur’an 2:60)

فَقُلْتُ اسْتَغْفِرُوا رَبَّكُمْ إِنَّهُ كَانَ غَفَّاراً * يُرْسِلْ السَّمَاءَ عَلَيْكُمْ مِدْرَاراً

And I said: ‘Ask forgiveness of your Lord; surely He is ever All-forgiving, and He will loose heaven upon you in torrents. (Qur’an 71:10-11)

A tradition reports that once when the people of Madinah were facing drought and the Prophet (S) was delivering a sermon, a man stood up and said: "Horses and women have perished. Pray to God to give us rain.”The Prophet (S) extended his hands and prayed.

Anas narrates: "The sky was (clear) like a piece of glass. Then the wind began to blow. The clouds emerged and gathered and the sky poured forth its blessings. We went forth wading through the pools till we reached our homes. It continued to rain till the next Friday, and the same person stood up again and said: ‘O Prophet of Allah, houses have fallen and the caravans have been detained. So pray to God to stop it’. The Prophet (S) smiled and then said: ‘O God, make rain around us, not upon us.’ Then I looked at the sky and saw it (i.e. the clouds) split and form a garland around Madinah."

The occasion for this salat is drought, scanty rainfall, and drying up of springs. The schools concur that if rain is delayed even after performing the salat, it is mustahabb to repeat it. If it is preceded by three days of fasting and the people go forth on foot, in a humble and supplicating manner, accompanied by their women and children, their elderly, men and women, and cattle, it will be more conducive for invoking Divine mercy.

There is consensus that it is valid to perform it individually as well as in jama’ah, and that it does not have an adhan and iqamah; it is mustahabb for the imam to deliver a sermon after the salat. As to its mode, the schools concur that it comprises two rak’ahs to be performed like the two rak’ahs of salat al-‘id in accordance with what each school specifies in that regard. The Malikis and the Hanafis say: It is like salat al-‘Id though without the additional takbirat.

The Imamis observe: It is mustahabb after every takbirah to recite qunut imploring the mercy and blessing of God and seeking rainfall.

The four Sunni schools state: This kind of supplication will be mentioned by the preacher after the salat during the sermon, not in the salat itself.

Salat al-Qada’

There is consensus among the schools that it is wajib to perform qada' of every obligatory salat omitted either intentionally, or on account of forgetfulness, ignorance or sleep, and that there is no qada’ for a woman for the prayers left during hayd and nifas, because salat is not wajib during these periods. The schools differ regarding one who is insane, unconscious or intoxicated.

The Hanafis state: Qada’ is wajib upon one who loses his senses by consuming a haram intoxicant, such as wine or something of its kind. As to someone insane or in a swoon, he is not required to perform salat in the following two situations: firstly, if the state of swoon or insanity continues for a period exceeding five salats (hence if it lasts for less than that period the person should perform its qada.'); secondly, if the recovery from insantiy or swoon does not occur at the time of salat (hence if he recovers and does not perform the salat its qada’ will be wajib upon him).

The Malikis are of the opinion that an unconscious or insane person has to perform qada’. An intoxicated person will perform qada’ if the cause of intoxication is the drinking of something haram; but if it is something halal (such as sour milk) there is no qada’ for it.

According to the Hanbalis, an unconscious person and one intoxicated by something haram will perform qada’, though an insane person is not required to do so.

The Shafi'is state: An insane person whose state of insanity extends over the entire period of salat will not perform its qada’. The same applies to one in a swoon or one intoxicated, provided he is not responsible for his state.

The Imamis consider it wajib for anyone who has consumed an intoxicant to perform qada’, irrespective of whether he drinks it knowingly or unknowingly, voluntarily or out of an exigency or under duress. As to an insane person and one in a swoon, they have no qada’ to perform.

The Mode of Performing Qada’

The Hanafis and Imamis observe: A person who has omitted an obligatory salat will perform its qada’ exactly in the manner he would have performed it ada’. Hence if a person with an outstanding complete salat intends to perform it during journey, he should perform it completely, and one performing a qasr prayer as qada’ at home will perform it qasr. Similar is the rule respecting recital in a high or low voice. Hence if maghrib and 'isha’ prayers are performed qada’ during daytime, their recital will be loud, and in the qada’ of zuhr and 'asr prayers during night the recital will be in a low voice.

The Hanbalis and the Shafi'is state: The one who intends to perform the qada’ of a qasr prayer during journey will perform it qasr in accordance with the salat missed by him. But if he happens to be staying (hadr), it is wajib upon him to perform it complete as qada’. This was with respect to the number of rak’ahs.

As to its recital in a high or low voice, the Shafi'is say: The one who performs the qada’ of zuhr at night will recite in a loud voice and one performing qada’ of maghrib during daytime will do so in a low voice. The Hanbalis require all qada’ prayers to be recited in a low voice, irrespective of their being those that are recited in a high voice or low, and regardless of whether the qada’ is performed during daytime or at night, except where the person performing it is an imam and the salat is one which is recited in a high voice and it happens to be nighttime.

The schools, excepting the Shafi'i, concur that sequence should be maintained in the performance of the prayers missed. Thus the qada’ of one missed earlier will be performed before the qada’ of one missed later. Hence if maghrib and ‘isha’ prayers are missed, the former will be offered before the latter, as is the case while performing them ada'.

According to the Shafi'is, the maintaining of sequence in prayers missed is sunnah and not wajib. Hence the salat of a person who performs the ‘isha’ prayer before the maghrib prayer is valid.

Proxy for Acts of Worship

There is a general consensus that appointing a proxy for carrying out prayers and fasts for a living person is not valid in any situation irrespective of whether he is capable or incapable of performing them himself. The Imamis state: It is valid to appoint a proxy for carrying out fasts and prayers on behalf of a dead person. The four Sunni schools observe: It is not valid in the case of a dead person, in the same manner as it is not valid for a living one.

The schools concur that appointing a proxy for Hajj is valid in the case of a living person provided he is incapable of performing it himself, and with greater reason in the case of a dead person. An exception are the Malikis who say: The appointing of a proxy, both for a living or a dead person, is of no consequence.

The Imamis are alone in observing that it is wajib for a child to perform the qada’ of the fasts and prayers left unperformed by its father. But they differ among themselves, and some of them state: It is wajib to perform all that which has been missed by the father, even if intentionally. Others say: It is necessary to perform the qada’ of only those acts which he has been unable to perform due to illness or some similar cause. There are others who observe: Nothing except that which has been missed by him during death-illness is to be performed as qada’ by the child. According to some others, the qada’ of the mother will also be performed by the child in the same manner as that of the father.

Salat al-Jama'ah

The Muslims are one voice regarding salat al-jama’ah (congregational prayer) being a ceremony and symbol of Islam. It was performed perpetually by the Prophet (S) and by the Caliphs and the Imams after him. The schools differ as to whether it is wajib or mustahabb.

The Hanbalis state: It is wajib upon every person capable of it. But if he forsakes the jama’ah and prays individually, his salat will be valid, though he will have sinned.

The Imamis, Hanafis, Malikis and most Shafi'is observe: It is neither wajib individually ('ayni) nor collectively (kifa’i) but is an emphasized mustahabb.

According to the Imamis, the Shari'ah has ordained jama’ah only for wajib, not for mustahabb prayers, except istisqa’ and ‘idayn prayers despite the absence of its conditions. The four schools consider it ordained for both wajib and mustahabb prayers.

Conditions for Jama'ah

The following conditions have been laid down for the validity of jama’ah:

1. Being a Muslim. There is a consensus about it.

2. Sanity. They concur regarding it.

3. According to the Imamis, the Malikis and the Hanbalis, in one of the two opinions narrated from Imam Ahmad, ‘adalah (i.e. 'justice' of the imam ) is necessary. The Imamis cite as their evidence the Prophet's statement, "A woman will not act as an imam for a man, nor a fajir (a libertine) for a believer", the consensus of the Ahl al-Bayt ('a), as well as the reason that the imamah in salat is suggestive of leadership, and a fasiq is not competent to assume it under any circumstance. But they also observe: If a person were to trust someone and pray behind him, later coming to know that he is a fasiq person, it is not wajib upon him to repeat the prayer.

4. Being a male is necessary, and a woman cannot act as an imam for men, though other women can follow her as their imam according to all the schools except the Malikis who say: A woman cannot act as an imam even for women.

5. The Malikis, Hanafis and Hanbalis consider maturity as a requirement for the imam. The Shafi'is are of the opinion that it is valid to follow a child of discriminating age (mumayyiz). The Imamis have two opinions; in accordance with the first, maturity is necessary, and according to the second the imamah of an adolescent mumayyiz is valid.

6. As per consensus, the minimum number of persons required for jama’ah is two, one of them being the imam; this does not include the Friday prayer.

7. The ma’mum should not stand ahead of the imam, in the opinion of all the schools except the Malikis, who observe: The salat of the ma’mum will not be invalid even if he stands ahead of the imam.

8. The jama’ah should be conducted in a single place and there should be no partitions. The Imamis state: There should not be an unusual distance between the ma’mum and the imam without there being a connection through the continuity of the rows. The jama’ah is not valid if there exists between the imam and a male ma'mum an obstacle which prevents the latter from seeing the imam or seeing those ahead of him who see the imam. Women are excepted, and they can follow a male imam despite the presence of a partition provided the acts of the imam are not uncertain for them.

The Shafi’is observe: A distance of more than 300 cubits between the imam and the ma’mum is not objectionable provided there exists no obstacle.

The Hanafis are of the opinion that if a person whose house adjoins a mosque follows the imam from his house with only a wall separating them, his salat will be valid, provided the actions of the imam are known to him. But if the house and the mosque are separated by a road or stream, following the imam is not valid.

The Malikis state: The difference of place does not preclude the validity of following the imam; hence if the imam and the ma’mum are separated by a road, stream or wall, the salat will be valid as long as the ma’mum is capable of ascertaining the acts of the imam.

9. There is consensus that it is necessary for the ma’mum to make the niyyah of following the imam (niyyat al-'iqtida’).

10. The identity of the salat of the ma’mum and the imam. The schools concur that following the imam is not valid if the two salats differ in their arkan and af’al (acts) (such as the daily prayers as compared to the salat of funeral or ‘id), they differ regarding the remaining matters.

The Hanafis and the Malikis observe: It is not valid for a person offering zuhr prayer to follow one offering ‘asr, and for one offering qada’ to follow someone offering ada’, and vice versa.

The Imamis and the Shafi'is consider all these as valid. The Hanbalis consider it invalid to offer zuhr prayer behind someone offering ‘asr and vice versa, but they consider valid the offering of zuhr prayer as qada’ behind someone performing it ada’.

11. The qira'ah of the imam should be perfect. Hence the schools concur that it is not valid for a person knowing qira'ah to follow one who does not know it, and if he does so his salat will be invalid. According to the Hanafis, the salat of both the imam and the ma'mun will be invalid; and they have a sound ground for holding the opinion that an illiterate person should follow, as far as it is possible, someone whose recital is correct, and it is not valid for him to pray singly where he can pray with a correct qira'ah by attending a jama'ah.

Following the Imam

There is consensus that one praying with wudu’ can follow an imam who prays with tayammum and that it is obligatory for the ma'mun to follow the imam in the recital of the adhkar such as:

سبحان ربّي العظيم،سبحان ربّي الأعلى، سمع الله لمن حمده

They differ concerning following him in the qira’ah.

The Shafi'is observe: The ma’mum should follow the imam in the salats that are recited silently and not in those that are recited loudly, and it is wajib for him· to recite al-Fatihah in all the rak’ahs.

The Hanafis state: He should not imitate the imam either in the salats where the qira’ah is silent nor in those where it is loud; rather, it has been narrated from Imam Abu Hanifah that the qira'ah of a ma’mum behind the imam is a sin (al-Nawawi, Sharh al-Muhadhdhab, vol. 3, p. 365).

According to the Malikis, the ma’mum should perform the qira’ah in the salats where it is silent, not in the salats where it is loud.

The Imamis do not consider it wajib (for the ma’mum) to perform qira’ah in the first two rak'ahs, but consider it wajib in the third rak'ah of maghrib prayer and the last two rak'ahs of the four-rak'ah prayers.

All the schools concur concerning the wujub of following the imam’s actions by the ma'mun, but differ in their interpretation of the term ‘following’ (mutaba’ah).

The Imamis state: The meaning of mutaba’ah is that every act of the ma’mum should neither precede the corresponding act of the imam nor follow it after an inordinate delay; rather it should be either simultaneous or follow it with a small lag.

In the opinion of the Hanafis, mutaba’ah is achieved by performing simultaneously or immediately afterwards or with some lag, the acts performed by the imam. Hence if the ma’mum performs ruku’ after the imam has raised his head from the ruku’ but before his going down for sajdah, he will be considered as having 'followed' the imam in the ruku’.

The Malikis say: The meaning of mutaba’ah is that every act of the ma’mum should take place after the corresponding act of the imam without preceding it or occurring simultaneously with it or following it after excessive delay, so that the ma’mum will perform ruku’ before the imam has raised his head from it.

The Hanbalis are of the opinion that mutaba’ah implies that the ma’mum should neither precede the imam in any of the acts of salat nor delay any act after the imam has performed it. Hence the ma’mum should not enter ruku’ after the imam has finished it, and the imam should not have ended the ruku' before the ma’mum has entered it.

Joining the Jama'ah in the Middle

If a person joins the jama’ah after the imam has finished one or more rak'ahs, the schools concur that he will make the niyyah for jama’ah and continue to perform it with the imam. But the question is whether he will consider the rak'ahs being performed along with the imam as the initial part of his salat or the end part of it. For example, if he performs only the last rak'ah of maghrib prayer with the imam, there remain two more rak'ahs which have to be performed; now, will the third rak'ah which he has performed with the imam be considered his third rak'ah as well with the first two rak'ahs remaining to be performed, or will it be considered his first rak'ah, with the second and the third rak'ahs remaining to be performed?

The Hanafis, Malikis and Hanbalis observe: The part of the salat which the ma'mum performs with the imam will be considered the end part of the former's salat. Therefore if he performs only the last rak'ah of maghrib prayerin in jama’ah, it will be considered his last rak'ah as well, and he will perform after it a rak'ah in which he will recite al-Fatihah and another surah, followed by tashahhud, and in the next rak'ah, al-Fatihah and a surah. To put it briefly, in such a situation he will offer the third rak'ah before the first two rak'ahs by considering the part of his salat performed with the imam as the end part, and the part performed without the imam as the initial part.

The Shafi'is and the Imamis state: The part of the salat which the ma'mum performs with the imam will be considered the initial part of his salat, not the end part of it. Hence if he performs the last rak'ah of maghrib prayer with the imam, he will count it as his first rak'ah and will stand up for performing the second rak'ah, which will include tashahhud, and will follow it up with the third rak'ah that will be the end part of his salat.

Preference for the Imamah

The Hanafis say: If equally qualified men gather for salat, the person most learned in its rules will be preferred for leading it, followed by one with the best qira’ah, then the most pious, then the one whose acceptance of Islam was earlier, then the eldest, then the superior in character, then the most handsome, then the noblest in respect of lineage, and then the most cleanly dressed, in that order. If they are all equal in respect of these qualities, the selection will be by casting lots among them.

The Malikis are of the opinion that the ruler or his deputy will lead the prayers, followed by the imam of the mosque, then the master of the house, then the one most learned in hadith, then the most just, then the one having the best qira'ah, then the most devout (al-'a'bad), then the one preceding others in his acceptance of Islam, then the one having the best lineage, then the one with the best character, and then the one who is best dressed, in that order. If they are equal in these respects, lots will be cast among them.

The Hanbalis observe: The most learned in fiqh (Islamic law) and having the best qira'ah will be preferred, followed by one who excels only in qira’ah; then comes the one who excels in the rules of salat, then the one who excels in qira’ah but does not know the fiqh of salat, then the most aged, then the person with the best lineage, then the one who has migrated earliest, then the most God-fearing (al-atqa), and then the most pious (al-awra'), in that order. If they are equal in these qualities, lots will be cast.

The Shafi'is prefer the ruler, and then the imam of the mosque, then the one most learned in fiqh, then the one having the best qira'ah, then the most ascetic (al-azhad ), then the most pious (al-awra'), then the one who has migrated earliest, then the most eloquent, then the best in terms of lineage,then the best in character, then the cleanest in matters of dress, body and craft, then the one with the best voice, then the most handsome, and then a married person, in that order. In the event of their being equal in respect of these qualities, lots will be cast.

The Irnamis state: If a number of persons are eager to lead the prayers for the sake of the thawab (spiritual reward) of imamah and not for any worldly purpose, the one whom the ma’mums prefer on the basis of the preferential qualities mentioned in the Shari'ah with a religious intent in mind and not with mundane intentions, will be the imam. But if they differ, it is better that a faqih be preferred, followed by one who has the best qira’ah, then the most eloquent, and then one who enjoys a preference in accordance with the Shari'ah.

Salat During Travel (Salat al-Musafir)

The schools concur that the shortening (qasr) of prayers during travel is limited to the obligatory four-rak'ah prayers. Hence zuhr, 'asr and 'isha’ prayers will be performed in two rak'ahs, like the morning prayer. The schools differ as to whether qasr is obligatory during travel or if there is an option between it and complete salat?

The Hanafis and the Imamis observe: It is obligatory and has to be performed.
The other schools state: There is an option and a person may either perform it qasr or complete.

Conditions for Qasr

Qasr requires the following conditions:

1. There is consensus that travelling over a certain distance is a condition. The distance in the opinion of the Hanafis, is 24 parasangs in the direction of journey; below this, qasr is not permissible.

The Imamis consider it to be 8 parasangs in the direction of journey or to and fro together.1

The Hanbalis, Malikis and Shafi’is regard it as 16 parasangs, only in the direction of journey, though it does not matter if the distance travelled is less than this distance by two miles (eight miles, in the opinion of the Malikis).

A parasang is equal to 5.04 km (al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 4, "mabhath shurut al-qasr").
Hence the minimum distance to be travelled in the opinion of the Hanafis, the three other schools, and the Imamis is 120.96 kms, 80.64 kms and 40.32 kms respectively.

2. The schools concur that the intention to travel the complete distance should be present at the start of the journey, and that the intention of a 'follower' – such as wife, servant, captive or soldier - is subject to the intention of the 'commander' whom he follows, provided that the one under command knows the intention of that commander or leader; in the event of ignorance he/she will perform the salat complete.

3. Qasr is not valid in the opinion of the four schools except after leaving behind the buildings of a town.

The Imamis observe: Leaving the constructed areas is not sufficient; rather, it is necessary that either the walls of the town should disappear from sight or its adhan should not be hearable. The limit they have set for the beginning of the journey is also the limit for terminating it; i.e. if a person is returning back home, he is supposed to pray qasr until he sees the walls of his town or is able to hear its adhan.

4. The journey should be for a legitimate purpose. Hence if it is for an illegitimate purpose, such as a journey for the sake of committing theft, etc., he may not pray qasr in the opinion of all the schools, except the Hanafis, who observe: He will pray qasr in all journeys, even if the journey is an illegitimate one; at the most he will be sinning by performing an unlawful act.

5. In the opinion of the four schools, the traveller may not pray in a jama’ah being led by a local imam or another traveller whose salat is complete. If he does so, it is wajib for him to perform the complete salat.

The Imamis do not accept this condition and consider it valid for a person whose salat is complete to pray behind a person praying qasr and vice versa, provided each performs his own duty. Therefore, if a traveler prays behind a local resident the zuhr, 'asr and 'isha' prayers, he will perform two rak'ahs and tashahhud along with the imam and say the taslim individually, while the imam continues with his salat till its end. And if a local person prays behind a traveller, he will perform two rak'ahs in jama'ah and complete the remaining part of his salat individually.

6. The niyyah of qasr is essential for the salat being so performed. Hence if a person prays without making niyyah of qasr, he will perform that salat complete in the opinion of the Hanbalis and the Shafi’is.

The Malikis state: It is sufficient to make the niyyah of qasr in the first qasr salat of the journey, and it is not necessary to repeat it in every salat.

The Hanafis and the Imamis observe: The niyyah of qasr is not a condition for qasr becoming wajib, so that if one does not make it he will have to perform it complete, because the actual status of a duty is not altered by intentions. Moreover, such a person has intended the journey from the very beginning. However, the Imamis say: If a traveller intends to stay at a particular place and later changes his mind, he will offer qasr as long as he has not performed any complete salat. Hence if he performs even one complete salat and then changes his plan of staying there, he will continue to perform salat completely.

7. His intention should not be to stay continuously at one place for: fifteen days in the opinion of the Hanafis, ten days in the opinion of the Imamis, and four days in the opinion of the Malikis and the Shafi’is, and a period during which more than 20 salats become wajib in the opinion of the Hanbalis. The Imamis further add: If he is unable to decide for how long he will stay at a particular place, he will continue to perform qasr for thirty days, and after this period it will be wajib for him to perform complete salat even if it happens to be a single one.

8. The traveller's nature of work should not require continuous travel - e.g. one who hires out his beast of burden or a tradesman whose trade requires continuous travelling - so that he is unable to stay at home for the stipulated period of days. This condition has been upheld only by the Hanbalis and the Imamis.

9. The traveler should not be a nomad who has no fixed house and keeps moving from place to place. Only the Imamis have expressly stated this condition.

10. The Hanafis, Hanbalis and Malikis observe: If a traveller changes his mind and intends to return to the place from where he began his journey, in the event of his not having travelled the distance required for performing qasr, his journey will be considered concluded and he will perform his salat complete. But if he has travelled the distance stipulated by the Shari'ah, he will pray qasr till returning back to his native place.

The Shafi’is say: Whenever a person decides to tum back in the course of his journey, he will perform his salat complete (al-Ghazali, al-Wajiz, "salat al-musafirin"). This implies that he will start performing salat complete on his way back despite having travelled the stipulated distance, because the absence of the mention of any conditions proves inclusiveness and generality.

The Imamis state: If one desists from his journey or becomes hesitant before covering the stipulated distance, it is wajib for him to offer his prayers completely; and if the stipulated distance has been covered, he will pray qasr. The continuous presence of the intent of journey is a condition as long as the stipulated distance has not been travelled, but after it has been covered, the subject is, of necessity, realized and its existence no longer depends upon intention.

There is consensus among the schools that every condition that entails qasr is also a condition for the validity of breaking one's fast during journey, though some schools have added other conditions for the validity of breaking the fast which will be mentioned in the chapter on fasting. The Imamis add no further conditions; they observe:

مَن أفطر قصر، ومَن قصر أفطر

i.e. one who breaks the fast (consequent to travelling) will perform his salat as qasr, and he who performs salat as qasr will break his fast.

Successive Performance (Jam') of Two Salats

Malik, al-Shafi'i and Ahmad consider it permissible while travelling to perform zuhr and ‘asr prayers, as well as maghrib and 'isha’, successively by either advancing the performance of one of them or delaying the performance of the other. Abu Hanifah observes: It is not valid to perform two salats successively for the excuse of journey under any circumstance.

The meaning of 'advancing' their successive performance is to perform zuhr and ‘asr prayers in the time meant for zuhr, and by 'delaying' is meant their successive performance in the time specified for ‘asr.

Ignorance and Forgetfulness

The Imamis observe: The salat of one who intentionally performs complete salat while travelling is batil, and he is supposed to repeat it ada’ if its time has not elapsed, and qada’ if it has elapsed. But if a person who is ignorant about qasr being wajib does so, he will not repeat the salat, irrespective of whether its time has elapsed or not. If a person performs it complete out of forgetfulness and then remembers while its time has not elapsed, he will repeat the salat, and if he remembers it after its time has elapsed, he will not repeat it.

The Imamis further state: If the time of a salat sets in while a person is at home and capable of performing it and he sets out on his journey before performing it, he will perform it qasr. But if the time of a salat comes while a person is travelling and he does not perform it till he has reached his native place or a place where he intends to remain for ten days, he will perform the salat complete. Hence the criterion is the time when the salat is performed and not the time when it becomes wajib.

- 1. Provided he returns within one day and one night, because in this case his journey has taken up all his day. Some others among them say: One should perform qasr if he intends to return within 10 days.

The Invalidating Causes of Salat (Mubtilat)

The following causes render salat invalid:

1. Speech. Its minimum is anything composed of two letters, even if they are meaningless and of a single letter if it makes sense (such as the word قِ which is a verb in the imperative case of the root waqa).

The salat will not become batil by uttering a single letter which has no meaning and by an involuntary sound comprising many letters.

The Hanafis and the Hanbalis do not differentiate between intentional speech and anything spoken by mistake in respect of its being a cause that invalidates salat.
The Imamis, Shafi'is and Malikis observe: Salat is not invalidated by anything spoken by mistake provided it is short and does not vitiate the form of the salat.

The Imamis and the Malikis are of the opinion that salat is not invalidated by clearing the throat, irrespective of whether it is done due to necessity or not. The other schools consider it a cause that invalidates salat if done needlessly but not otherwise, such as for clearing one's voice for better phonation or for signalling the imam to correct himself.

The schools concur that it is valid to supplicate during salat, seeking blessing and forgiveness from Allah, subhanahu, except that the Hanafis and the Hanbalis restrict this supplication to what has been mentioned in the Qur'an and the Sunnah, or that which is sought only from God, such as rizq (provision) and barakah.

To recite tasbih (subhan Allah) to indicate that one is performing salat, or to guide the imam, or to correct his mistake, is not considered as a speech that invalidates salat.

The four Sunni schools state: Included in speech that invalidates salat is the returning of salam. Hence if someone says salam to a person who is praying and he returns the salam verbally, the salat becomes invalid. However, there is no harm if the salam is returned by a gesture.

The Imamis observe: It is wajib for the musalli to return a salutation which contains the word 'salam' with a similar salutation, though not any other salutation such as 'good morning', etc. They also specify that the form of the salutation being returned should be exactly like the initial salutation without any difference. Hence the reply of 'salam 'alaykum' will be the same without alif and lam, and the reply of 'al-salam 'alaykum' will be with the alif and lam.

2. Every action which destroys the form of the salat invalidates it. The schools concur that the form is destroyed by any act which gives an onlooker the impression that the person performing that act is not praying.

3. There is a consensus regarding eating and drinking though they differ regarding the quantity that invalidates salat.

The Imamis observe: Eating and drinking invalidate salat if they distort the form of salat or violate any of its conditions, such as continuity, etc.

The Hanafis observe: Every form of eating and drinking invalidates salat irrespective of the quanity consumed, even if it is one sesame seed or a drop of water and regardless of whether it is done intentionally or otherwise.

The Shafi'is state: Any food or drink which reaches the stomach of a musalli, irrespective of its being a small or a large quantity, invalidates salat if the musalli does so intentionally and with the knowledge of its being haram. But if done out of ignorance or forgetfulness, a small quantity will not invalidate salat, though a large quantity will.

According to the Hanbalis, a large quantity will invalidate salat, whether consumed intentionally or by mistake, and a small quantity only if consumed intentionally, not otherwise.

4. The occurrence of any minor or major hadath, which causes the wudu' or the ghusl to break, will also invalidate salat in the opinion of all the schools except the Hanafis, who observe: It will invalidate salat if it occurs before the last qu’ud (sitting) by a duration equal to tashahhud, and if it occurs after it and before taslim, the salat will not become invalid.

5. The schools concur that laughter invalidates salat, though the Hanafis apply to it the same rule that they apply to hadath, as mentioned above.

* * *

Considering the importance of the causes that invalidate salat and their number and diversity, and considering that each school has its own opinion which at times concurs or differs with the opinions of other schools, it would be appropriate to give a summary of these causes in accordance with the opinion of.each school separately.

The Shafi'is observe: The causes invalidating salat are: hadath, which necessitates the performance of wudu’ or ghusl; speech; crying; groaning, in certain situations; inordinate movement(S), a doubt concerning niyyah; indecision concerning discontinuing the salat while continuing to perform it; shifting one's niyyah from one salat to another, except where it is an obligatory salat, for it is valid to change one's niyyah to that of a supererogatory salat in order to perform the obligatory salat with jama’ah; exposure of the 'awrah when one is capable of covering it; nakedness, as soon as a covering becomes available; the presence of najasah to an inexcusable extent, when one does not speedily remove it from himself; the repetition of takbirat al-ihram; intentional omission of a rukn; praying in jama’ah behind an imam who is not fit for imamah due to his kufr, etc; performing an additional rukn intentionally; the reaching of any food or drink to the stomach; turning away with the chest from the qiblah; and wrongly performing a rukn involving movement before other acts.

The Malikis say: Salat is invalidated by: omitting a rukn, intentionally or by mistake, if the musalli, thinking that his salat is correct, does not remember having omitted it until after taslim and the passage of an inordinate duration; intentionally performing an additional rukn, such as ruku’ or sujud; performing tashahhud out of place while sitting; laughter, both intentional and otherwise; eating and drinking intentionally; speaking intentionally and not for correcting the imam; vomiting, if intentional; puffing intentionally with the mouth; occurrence of anything that causes wudu’ to break; exposure of the 'awrah or any part of it; najasah falling on the musalli; inordinate movement; performing four additional rak'ahs in a four-rak’ah salat knowingly or by mistake; doing sujud before taslim; inadvertent omission of three masnun acts from among the sunan of salat and then failing to perform sujud al-sahw.

The Hanbalis state: The causes that invalidate salat are: any inordinate movement; the presence of najasah to an inexcusable extent; turning one's back to the qiblah; incidence of any hadath breaking the wudu'; intentional exposure of the 'awrah; reclining heavily on a support without any excuse; returning to perform the first tashahhud after starting the qira’ah, provided the musalli is aware and conscious of it; performing an additional rukn intentionally; intentionally changing the sequence of the arkan; mispronunciation that results in a change of meaning despite being capable of proper pronunciation; intending to disrupt the salat or indecision regarding it; a doubt regarding takbirat al-ihram; laughter, speech, both intentional or otherwise; saying taslim intentionally before the imam; eating and drinking, even if due to forgetfulness or ignorance; needlessly clearing the throat; any puffing that may be construed as phonation of two letters; and weeping if not out of the fear of God.

According to the Hanafis, the causes that invalidate salat are: speech, whether intentional, by mistake, or due to ignorance; any supplication (du'a') not out of the Qur'an or Sunnah; any inordinate movement; turning the chest away from the qiblah; eating and drinking; clearing the throat without reason; saying "uff" (i.e.'fie; or 'ugh'; an expression of anger or displeasure); groaning; saying "Ah!" (ta'awwuh); weeping loudly; saying "al-hamdulillah " on sneezing; saying "Inna lillah..." on hearing some bad news and "al-hamdulillah " on hearing some pleasing news; saying "subhan Allah" or "la ililha illallah" as an expression of surprise; availability of water for one praying with tayammum; the rising of the sun for one offering the morning prayer or its crossing the meridian for one performing salat al-‘id; the falling off of a bandage from one who attains recovery; wilful occurrence of hadath, but if the hadath is involuntary it will not invalidate the salat, though one will have to perform wudu’ again and recommence the salat from where he had left it. 1

The Imamis observe: The causes that render salat invalid are: ostentation (riya'); uncertainty in niyyah; performing any act of salat while having made up one's mind to discontinue it; changing one's intent from a preceding salat to a subsequent salat, such as from zuhr to ‘asr. However, the transition from ‘asr to zuhr prayer is permissible; hence if a person makes the niyyah of performing 'asr prayer with the idea that he has performed the zuhr prayer and remembers during it that he has not performed the prayer, it is valid for him to shift his niyyah to offering the zuhr prayer. Similarly, it is permissible to shift from the niyyah of jama’ah to niyyah of performing it individually; but the opposite is not valid. However, it is valid for a person performing an obligatory salat individually to change his niyyah to that of a supererogatory salat in order to perform the obligatory salat with jama’ah. Salat is also invalidated by an additional takbirat al-ihram. Hence if one says takbirah for a salat and then repeats it, the salat becomes invalid and a third takbirah will be necessary. Again if he says takbirah for the fourth time, the salat will become invalid and a fifth takbirah will be neressary; thus every even takbirah results in the salat becoming batil due to the addition of a rukn, and becomes valid again by every odd takbirah.

Among the causes that invalidate salat is the incidence of najasah to an extent not excusable, when the musalli is unable to remove it without any inordinate movement that may vitiate the form of the salat. The availability of water during salat for a person praying with tayammum invalidates both the tayammum and salat, provided it becomes available before performing the ruku’ of the first rak’ah; if later, he will complete the salat which will be valid. Salat will also be invalidated by: the absence of certain conditions, such as the covering and the lawfulness of a particular location; the occurrence of a hadath; intentional deviation with the whole body from the qiblah either to the right or the left or any other direction in between; speaking voluntarily and weeping on account of one's worldly woes; laughter; any act that destroys the form of salat; eating and drinking; the intentional addition or omission of a part; and the omission, intentional or otherwise, of a rukn from among the five arkan. The five arkan are: niyyah, takbirat al-ihram, qiyam, ruku’ and the two sajdahs of every rak'ah.

Crossing over in Front of the Musalli

The schools concur that someone's passing from in front of the musalli does not invalidate the salat, but they differ regarding its impermissibility.

The Imamis state: It is neither impermissible for a person to pass from in front of the musalli, nor for the latter (to pray in such a place). But it is mustahabb for the musalli to place before him an 'obstruction' if there is no barrier before him to prevent passers. The 'obstruction' can be a stick, a rope, a pile of earth, etc. which the musalli may place before him as a mark of veneration for salat, which signifies detachment from the creation and attention towards the Creator.

The Malikis, Hanafis and Hanbalis observe: It is haram to cross over in front of a musalli in any circumstance, irrespective of whether he has placed an obstruction or not. Rather, the Hanafis and the Malikis add: It is haram for the musalli to create interference for passers-by if he can keep out of their way.

According to the Shafi'is, it is haram to cross over in front of the musalli if he has not placed an obstruction, and if he has done so, it is neither haram nor makruh.

- 1. This is a summary from ‘al-Fiqh ‘ala’ al-madhahib al-‘arba’ah.

3. Siyam, Fasting

Fasting in the month of Ramadan is one of the `pillars' of the Islamic faith. No proof is required to establish its being obligatory (wajib) and one denying it goes out of the fold of Islam, because it is obvious like salat, and in respect of anything so evidently established both the learned and the unlettered, the elderly and the young, all stand on an equal footing.

It was declared an obligatory duty (fard) in the second year of the Hijrah upon each and every mukallaf (one capable of carrying out religious duties, i.e. a sane adult) and breaking it (iftar) is not permissible except for any of the following reasons:

1. Hayd and nifas: The schools concur that fasting is not valid for women during menstruation and puerperal bleeding.

2. Illness: The schools differ here.

• The Imamis observe: Fasting is not valid if it would cause illness or aggravate it, or intensify the pain, or delay recovery, because illness entails harm (darar) and causing harm is prohibited (muharram).

Moreover, a prohibition concerning an `ibadah (a rite of worship) invalidates it. Hence if a person fasts in such a condition, his fast is not valid (sahih). A predominant likelihood of its resulting in illness or its aggravation is sufficient for refraining from fasting. As to excessive weakness, it is not a justification for iftar as long as it is generally bearable. Hence the extenuating cause is illness, not weakness, emaciation or strain, because every duty involves hardship and discomfort.

• The four Sunni schools state: If one who is fasting (sa'im) falls ill, or fears the aggravation of his illness, or delay in recovery, he has the option to fast or refrain. Iftar is not incumbent upon him; it is a relaxation and not an obligation in this situation. But where there is likelihood of death or loss of any of the senses, iftar is obligatory for him and his fasting is not valid.

3. A woman in the final stage of pregnancy and nursing mothers.

• The four schools say: If a pregnant or nursing woman fears harm for her own health or that of her child, her fasting is valid though it is permissible for her to refrain from fasting. If she opts for iftar, the schools concur that she is bound to perform its make up (qada') later. They differ regarding its substitute (fidyah) and atonement (kaffarah).

- In this regard the Hanafis observe: It is not at all wajib.

- The Malikis are of the opinion that it is wajib for a nursing woman, not for a pregnant one.

- The Hanbalis and the Shafi`is say: Fidyah is wajib upon a pregnant and a nursing woman only if they fear danger for the child; but if they fear harm for their own health as well as that of the child, they are bound to perform the qada' only without being required to give fidyah. The fidyah for each day is one mudd, which amounts to feeding one needy person (miskin.).1

• The Imamis state: If a pregnant woman nearing childbirth or the child of a nursing mother may suffer harm, both of them ought to break their fast and it is not valid for them to continue fasting due to the impermissibility of harm. They concur that both are to perform the qada' as well as give fidyah, equalling one mudd, if the harm is feared for the child. But if the harm is feared only for her own person, some among them observe: She is bound to perform qada' but not to give fidyah, others say: She is bound to perform qada' and give fidyah as well.

4. Travel, provided the conditions necessary for salat al-qasr, as mentioned earlier, are fulfilled as per the opinion of each school.

• The four Sunni schools add a further condition to these:

• The journey should commence before dawn and the traveler should have reached the point from where salat becomes qasr before dawn. Hence if he commences the journey after the setting in of dawn, it is haram for him to break the fast, and if he breaks it, its qada' will be wajib upon him without a kaffarah.

• The Shafi'is add another condition, which is that the traveller should not be one who generally travels continuously, such as a driver. Thus if he travels habitually, he is not entitled to break the fast.

• In the opinion of the four Sunni schools, breaking the fast is optional and not compulsory. Therefore, a traveller who fulfils all the conditions has the option of fasting or iftar. This is despite the observation of the Hanafis that performing salat as qasr during journey is compulsory and not optional.

• The Imamis say: If the conditions required for praying qasr are fulfilled for a traveler, his fast is not acceptable. Therefore, if he fasts, he will have to perform the qada' without being liable to kaffarah. This is if he starts his journey before midday, but if he starts it at midday or later, he will keep his fast and in the event of his breaking it will be liable to the kaffarah of one who deliberately breaks his fast.

And if a traveler reaches his hometown, or a place where he intends to stay for at least ten days, before midday without performing any act that breaks the fast, it is wajib upon him to continue fasting, and in the event of his breaking it he will be like one who deliberately breaks his fast.

5. There is consensus among all the schools that one suffering from a malady of acute thirst can break his fast, and if he can carry out its qada' later, it will be wajib upon him without any kaffarah, in the opinion of the four schools. In the opinion of the Imamis, he should give a mudd by way of kaffarah. The schools differ in regard to acute hunger, as to whether it is one of the causes permitting iftar, like thirst.

• The four schools say: Hunger and thirst are similar and both make iftar permissible.

• The Imamis state: Hunger is not a cause permitting iftar except where it is expected to cause illness.

6. Old people, men and women, in late years of life for whom fasting is harmful and difficult, can break their fast, but are required to give fidyah by feeding a miskin for each fast day omitted: similarly a sick person who does not hope to recover during the whole year. The schools concur upon this rule excepting the Hanbalis, who say: Fidyah is mustahabb and not wajib.

7. The Imamis state: Fasting is not wajib upon one in a swoon, even if it occurs only for a part of the day, unless where he has formed the niyyah of fasting before it and recovers subsequently, whereat he will continue his fast.

Disappearance of the Excuse

If the excuse permitting iftar ceases--such as on recovery of a sick person, maturing of a child, homecoming of a traveller, or termination of the menses--it is mustahabb in the view of the Imamis and the Shafi`is to refrain (imsak) from things that break the fast (muftirat) as a token of respect. The Hanbalis and the Hanafis consider imsak as wajib, but Malikis consider it neither wajib nor mustahabb.

Conditions (Shurot) of Fasting

As mentioned earlier, fasting in the month of Ramadan is wajib for each and every mukallaf. Every sane adult (al-baligh al-`aqil) is considered mukallaf. Hence fasting is neither wajib upon an insane person in the state of insanity nor is it valid if he observes it. As to a child, it is not wajib upon him, though valid if observed by a mumayyiz.

Also essential for the validity of the fast are Islam and niyyah (intention). Therefore, as per consensus, neither the fast of a non-Muslim nor the imsak of one who has not formed the niyyah is acceptable. This is apart from the afore-mentioned conditions of freedom from menses, puerperal bleeding, illness and travel.

As to a person in an intoxicated or unconscious state:

• The Shafi`is observe: His fast is not valid if he is not in his senses for the whole period of the fast. But if he is in his senses for a part of this period, his fast is valid, although the unconscious person is liable to its qada', whatever the circumstances, irrespective of whether his unconsciousness is self-induced or forced upon him. But the qada' is not wajib upon an intoxicated person unless he is personally responsible for his state.

• The Malikis state: The fast is not valid if the state of unconsciousness or intoxication persists for the whole or most of the day from dawn to sunset. But if it covers a half of the day or less and he was in possession of his senses at the time of making niyyah and did make it, becoming unconscious or intoxicated later, qada' is not wajib upon him. The time of making niyyah for the fast in their opinion extends from sunset to dawn.

• The Hanafis, an unconscious person is exactly like an insane one in this respect, and their opinion regarding the latter is that if the insanity lasts through the whole month of Ramadan, qada' is not wajib upon him, and if it covers half of the month, he will fast for the remaining half and perform the qada' of the fasts missed due to insanity.

• The Hanbalis observe: Qada' is wajib upon a person in a state of unconsciousness as well as one in a state of intoxication, irrespective of whether these states are self-induced or forced upon them.

• In the opinion of the Imamis, qada' is only wajib upon a person in an intoxicated state, irrespective of its being self-induced or otherwise; it is not wajib upon an unconscious person even if his loss of consciousness is brief.

Muftirat

The muftirat are those things from which it is obligatory to refrain during the fast, from dawn to sunset. They are:

2. Eating and drinking (shurb) deliberately. Both invalidate the fast and necessitate qada' in the opinion of all the schools, though they differ as to whether kaffarah is also wajib. The Hanafis and the Imamis require it, but not the Shafi`is and the Hanbalis.

A person who eats and drinks by an oversight is neither liable to qada' nor kaffarah, except in the opinion of the Malikis, who only require its qada'. Included in shurb [drinking] is inhaling tobacco smoke

2. Sexual intercourse, when deliberate, invalidates the fast and makes one liable to qada' and kaffarah, in the opinion of all the schools.

The kaffarah is the manumission of a slave, and if that is not possible, fasting for two consecutive months; if even that is not possible, feeding sixty poor persons. The Imamis and the Malikis allow an option between any one of these; i.e. a mukallaf may choose between freeing a slave, fasting or feeding the poor. The Shafi'is, Hanbalis and Hanafis impose kaffarah in the above-mentioned order; i.e. releasing a slave is specifically wajib, and in the event of incapacity fasting becomes wajib. If that too is not possible, giving food to the poor becomes wajib.

The Imamis state: All the three kaffarahs become wajib together if the act breaking the fast (muftir) is itself haram, such as eating anything usurped (maghsub), drinking wine, or fornicating. As to sexual intercourse by oversight, it does not invalidate the fast in the opinion of the Hanafis, Shafi`is and Imamis, but does according to the Hanbalis and the Malikis.

3. Seminal emission (al-'istimna'): There is consensus that it invalidates the fast if caused deliberately. The Hanbalis say: If manhy is discharged due to repeated sensual glances and the like the fast will become invalid:

• The four schools say: Seminal emission will necessitate qada' without kaffarah.

• The Imamis observe: It requires both qada' and kaffarah.

4. Vomiting: It invalidates the fast if deliberate, and in the opinion of the Imamis, Shafi`is and Malikis, also necessitates qada'. The Hanafis state: Deliberate vomiting does not break the fast unless the quantity vomited fills the mouth. Two views have been narrated from Imam Ahmad. The schools concur that involuntary vomiting does not invalidate the fast.

5. Cupping (hijamah) is muftir only in the opinion of the Hanbalis, who observe: The cupper and his patient both break the fast.

6. Injection invalidates the fast and requires qada' in the opinion of all the schools. A group of Imami legists observe: It also requires kaffarah if taken without an emergency.

7. Inhaling a dense cloud of suspended dust invalidates the fast only in the opinion of the Imamis. They say: If a dense suspended dust, such as flour or something of the kind, enters the body the fast is rendered invalid, because it is something more substantial than an injection or tobacco smoke.

8. Application of kohl invalidates the fast only in the opinion of the Malikis, provided it is applied during the day and its taste is felt in the throat.

9. The intention to discontinue the fast: If a person intends to discontinue his fast and then refrains from doing so, his fast is considered invalid in the opinion of the Imamis and Hanbalis; not so in the opinion of the other schools.

10. Most Imamis state: Fully submerging the head, alone or together with other parts of the body, under water invalidates the fast and necessitates both qada' and kaffarah. The other schools consider it inconsequential.

11. The Imamis observe: A person who deliberately remains in the state of janabah after the dawn during the month of Ramadan, his fast will be invalid and its qada' as well as kaffarah will be wajib upon him. The remaining schools state: His fast remains valid and he is not liable to anything.

12. The Imamis observe: A person who deliberately ascribes something falsely to God or the Messenger (S) (i.e. if he speaks or writes that God or the Messenger said so and so or ordered such and such a thing while he is aware that it is not true), his fast will be invalid and he will be liable to its qada' as well as a kaffarah.

A group of Imami legists go further by requiring of such a fabricator the kaffarah of freeing a slave, fasting for two months, and feeding sixty poor persons. This shows the ignorance or malice of those who say that the Imamis consider it permissible to forge lies against God and His Messenger (S).

The Various Kinds of Fasts

The legists of various schools classify fasts into four categories: Wajib, mustahabb (supererogatory), muharram (forbidden), and makruh (reprehensible).

Obligatory fasts

All the schools concur that the wajih fasts are those of the month of Ramadan, their qada', the expiatory fasts performed as kaffarah, and those performed for fulfilling a vow. The Imamis add further two, related to the Hajj and solitude in masjid (i`tikaf). We have already dealt in some detail with the fast of Ramadan, its conditions and the things that invalidate it. Here we intend to discuss its qada' and the kaffarah to which one who breaks it becomes liable. Other types of obligatory fasts have been discussed under the related chapters.

Qada' of the Ramadan Fasts

1. The schools concur that a person liable to the qada' of Ramadan fasts is bound to perform it during the same year in which the fasts were missed by him, i.e. the period between the past and the forthcoming Ramadan. He is free to choose the days he intends to fast, excepting those days on which fasting is prohibited (their discussion will soon follow). However it is wajib upon him to immediately begin their qada' if the days remaining for the next Ramadan are equal to the number of fasts missed in the earlier Ramadan.

2. If one capable of performing the qada' during the year neglects it until the next Ramadan, he should fast during the current Ramadan and then perform the qada' of the past year and also give a kaffarah of one mudd for each day in the opinion of all the schools except the Hanafi which requires him to perform only the qada'' without any kaffarah.

And if he is unable to perform the qada'--such as when his illness continues throughout the period between the first and the second Ramadan--he is neither required to perform its qada ' nor required to give kaffarah in the opinion of the four schools, while the Imamis say: He will not be liable to qada' but is bound to give a mudd as kaffarah for each fast day missed.

3. If one is capable of performing the qada' during the year but delays it with the intention of performing it just before the second Ramadan, so that the qada' fasts are immediately followed by the next Ramadan, and then a legitimate excuse prevents him from performing the qada' before the arrival of Ramadan, in such a situation he will be liable only to qada' not to kaffarah.

4. One who breaks a Ramadan fast due to an excuse, and is capable of later performing its qada' but fails to perform the qada ' during his lifetime:

• The Imamis observe: It is wajib upon his eldest child to perform the qada' on his behalf.

• The Hanafis, Shafi`is and Hanbalis state: A sadaqah of a mudd for each fast missed will be given on his behalf.

• According to the Malikis, his legal guardian (wali) will give sadaqah on his behalf if he has so provided in the will; in the absence of a will it is not wajib.

5. In the opinion of the four schools, a person performing the qada' of Ramadan can change his intention and break the fast both before and after midday without being liable to any kaffarah provided there is time for him to perform the qada' later.

The Imamis observe: It is permissible for him to break this fast before midday and not later, because continuation of the fast becomes compulsory after the passing of the major part of its duration and the time of altering the niyyah also expires. Hence if he acts contrarily and breaks the fast after midday, he is liable to kaffarah by giving food to ten poor persons; if he is incapable of doing that, he will fast for three days.

Fasts of Atonement (Kaffarah)

The fasts of atonement are of various kinds. Among them are atonement fasts for involuntary homicide, fasts for atonement of a broken oath or vow, and atonement fasts for zihar. These atonement fasts have their own rules which are discussed in the related chapters. Here we shall discuss the rules applicable to a person fasting by way of kaffarah for not having observed the fast of Ramadan:

• The Shafi`is, Malikis and Hanafis say: It is not permissible for a person upon whom fasting for two consecutive months has become wajib consequent to deliberately breaking a Ramadan fast to miss even a single fast during these two months, because that would break their continuity. Hence, on his missing a fast, with or without an excuse, he should fast anew for two months.

• The Hanbalis observe: If he misses a fast due to a legitimate excuse, the continuity is not broken.

• The Imamis state: It is sufficient for the materialization of continuity that he fast for a full month and then a day of the next month. After that he can skip days and then continue from where he had left. But if he misses a fast during the first month without any excuse, he is bound to start anew; but if it is due to a lawful excuse, such as illness or menstruation, the continuity is not broken and he/she will wait till the excuse is removed and then resume the fasts.

Furthermore:

• The Imamis further observe: One who is unable to fast for two months, or release a slave or feed sixty poor persons, has the option either to fast for 18 days or give whatever he can as sadaqah. If even this is not possible, he may give alms or fast to any extent possible. If none of these are possible, he should seek forgiveness from God Almighty.

• The Shafi'is, Malikis and Hanafis state: If a person is unable to offer any form of kaffarah, he will remain liable for it until he comes to possess the capacity to offer it, and this is what the rules of the Shari'ah require.

• The Hanbalis are of the opinion that if he is unable to give kaffarah, his liability for the same disappears, and even in the event of his becoming capable of it later, he will not be liable to anything.

The schools concur that the number of kaffarahs will be equal to the number of causes entailing it. Hence a person who breaks two fasts will have to give two kaffarahs. But if he eats, drinks or has sexual intercourse several times in a single day:

• The Hanafis, Malikis and Shafi`is observe: The number of ka ffarahs will not increase if iftar occurs several times, irrespective of its manner.

• The Hanbalis state: If in a single day there occur several violations entailing kaffarah, if the person gives kaffarah for the first violation of the fast before the perpetration of the second, he should offer kaffarah for the latter violation as well, but if he has not given kaffarah for the first violation before committing the second, a single kaffarah suffices.

• According to the Imamis, if sexual intercourse is repeated a number of times in a single day, the number of kaffarahs will also increase proportionately, but if a person eats or drinks a number of times, a single kaffarah suffices.

Prohibited Fasts

All the schools except the Hanafi concur that fasting on the days of `Id al-Fitr and `Id al-Adha is prohibited (haram):

• The Hanafis observe: Fasting on these two `Ids is makruh to the extent of being haram.

• The Imamis say: Fasting on the days of Tashriq is prohibited only for those who are at Mina. The days of Tashriq are the eleventh, twelfth and thirteenth of Dhu al-Hijjah.

• The Shafi`is are of the opinion that fasting is not valid on the days of Tashriq both for those performing Hajj as well as others.

• According to the Hanbalis, it is haram to fast on these days for those not performing Hajj, not for those performing it.

• The Hanafis observe: Fasting on these days is makruh to the extent of being haram.

• The Malikis state: It is haram to fast on the eleventh and the twelfth of Dhu al-Hijjah for those not performing Hajj, not for those performing it.

All the schools excepting the Hanafi concur that it is not valid for a woman to observe a supererogatory fast without her husband's consent if her fast interferes with the fulfillment of any of his rights. The Hanafis observe: A woman's fasting without the permission of her husband is makruh, not haram.

The Doubtful Days

There is consensus among the schools that imsak is obligatory upon one who does not fast on a “doubtful day” (yawm al-shakk) that later turns out to be a day of Ramadan, and he is liable to its qada' later.

Where one fasts on a doubtful day that is later known to have been a day of Ramadan, they differ as to whether it suffices without requiring qada':

• The Shafi’i, Maliki and Hanbali schools observe: This fast will not suffice and its qada' is wajib upon him.

• In the opinion of the Hanafis, it suffices and does not require qada'.

• Most Imamis state: Its qada' is not wajib upon him, except when he had fasted with the niyyah of Ramadan.

Supererogatory Fasts

Fasting is considered mustahabb on all the days of the year except those on which it has been prohibited. But there are days whose fast has been specifically stressed and they include three days of each month, preferably the `moonlit' days (al-'ayyam al-bid), which are the thirteenth, fourteenth and fifteenth of each lunar month.

Among them is the day of `Arafah (9th of Dhu al-Hijjah). Also emphasized is the fasting of the months of Rajab and Sha'ban. Fasting on Mondays and Thursdays has also been emphasized. There are other days as well which have been mentioned in elaborate works. There is consensus among all the schools that fasting on these days is mustahabb.

Reprehensible (Makrah) Fasts

It is mentioned in al-Fiqh `ala al-madhahib al-'arba`ah that it is makruh to single out Fridays and Saturdays for fasting. So is fasting on the day of Now Ruz (21st March) in the opinion of all the schools except the Shafi`i, and fasting on the day or the two days just before the month of Ramadan.

It has been stated in Imami books on fiqh that it is makruh for a guest to fast without the permission of his host, for a child to fast without the permission of its father, and when there is doubt regarding the new moon of Dhu al-Hijjah and the consequent possibility of the day being that of `Id.

Evidence of the New Moon

There is a general consensus among Muslims that a person who has seen the new moon is himself bound to act in accordance with his knowledge, whether it is the new moon of Ramadan or Shawwal.

Hence it is wajib upon one who has seen the former to fast even if all other people don't, 2 and to refrain from fasting on seeing the latter even if everyone else on the earth is fasting, irrespective of whether the observer is `adil or not, man or woman. The schools differ regarding the following issues:

1. The Hanbalis, Malikis and Hanafis state: If the sighting (ru'yah) of the new moon has been confirmed in a particular region, the people of all other regions are bound by it regardless of the distance between them; the difference of the horizon of the new moon is of no consequence. The Imamis and the Shafi`is observe: If the people of a particular place see the new moon while those at another place don't, in the event of these two places being closeby with respect to the horizon, the latter's duty will be the same; but not if their horizons differ.

2. If the new moon is seen during day, either before or after midday, on 30th Sha'ban, will it be reckoned the last day of Sha'ban (in which case, fasting on it will not be wajib) or the first of Ramadan (in which case fasting is wajib)? Similarly, if the new moon is seen during the day on the 30th of Ramadan, will it be reckoned a day of Ramadan or that of Shawwal? In other words, will the day on which the new moon is observed be reckoned as belonging to the past or to the forthcoming month?

The Imamis, Shafi`is, Malikis and Hanafis observe: It belongs to the past month and not to the forthcoming one. Accordingly, it is wajib to fast on the next day if the new moon is seen at the end of Sha'ban, and to refrain from fasting the next day if it is seen at the end of Ramadan.

3. The schools concur that the new moon is confirmed if sighted, as observed in this tradition of the Prophet (S):

صوموا لرؤيته وأفطروا لرؤيته

(`Fast on seeing the new moon and stop fasting on seeing it').

They differ regarding the other methods of confirming it.

• The Imamis observe: It is confirmed for both Ramadan and Shawwal by tawatur (i.e. the testimony of a sufficiently large number of people whose conspiring over a false claim is impossible), and by the testimony of two `adil men, irrespective of whether the sky is clear or cloudy and regardless of whether they belong to the same or two different nearby towns, provided their descriptions of the new moon are not contradictory. The evidence of women, children, fasiq men and those of unknown character is not acceptable.

• The Hanafis differentiate between the new moons of Ramadan and Shawwal; they state: The new moon of Ramadan is confirmed by the testimony of a single man and a single woman, provided they are Muslim, sane and `adil. The Shawwal new moon is not confirmed except by the testimony of two men or a man and two women. This is when the sky is not clear. But if the sky is clear--and there is no difference in this respect between the new moon of Ramadan and Shawwal--it is not confirmed except by the testimony of a considerable number of persons whose reports result in certainty.

• In the opinion of the Shafi`is, the new moon of Ramadan and Shawwalis confirmed by the testimony of a single witnesss provided he is Muslim, sane, and `adil. The sky's being clear or cloudy makes no difference in this regard.

• According to the Malikis, the new moon of Ramadan and Shawwalis not confirmed except by the testimony of two `adil men, irrespective of the sky's being cloudy or cloudless.

• The Hanbalis say: The new moon of Ramadan is confirmed by the testimony of an `adil man or woman, while that of Shawwalis only confirmed by the testimony of two `adil men.

4. There is consensus among the schools, excepting the Hanafi, that if no one claims to have seen the new moon of Ramadan, fasting will be wajib after the thirtieth day allowing thirty days for Sha'ban. According to the Hanafis, fasting becomes wajib after the twenty-ninth day of Sha'ban. This was with respect to the new moon of Ramadan. As to the new moon of Shawwal:

• The Hanafis and the Malikis observe: If the sky is cloudy, thirty days of Ramadan will be completed and iftar will be wajib on the following day. But if the sky is clear, it is wajib to fast on the day following the thirtieth day by rejecting the earlier testimony of witnesses confirming the first of Ramadan regardless of their number.

• The Shafi`is consider iftar as wajib after thirty days even if the setting in of Ramadan was confirmed by the evidence of a single witness, irrespective of the sky's having been cloudy or clear.

• According to the Hanbalis, if the setting in of Ramadan was confirmed by the testimony of two `adil men, iftar following the thirtieth day is wajib, and if it was confirmed by the evidence of a single `adl, it is wajib to fast on the thirty-first day as well.

• In the opinion of the Imamis, both Ramadan and Shawwal are confirmed after the completion of thirty days regardless of the sky's being cloudy or clear, provided their beginning was confirmed in a manner approved by the Shari`ah.

The New Moon and Astronomy

This year (1960) the governments of Pakistan and Tunisia have decided to rely upon the opinion of astronomers for the confirmation of the new moon with a view of putting an end to confusion 3 and the general inconvenience resulting from not knowing in advance the day of `Id, which at times comes as a surprise, and at other times is delayed despite all the preparations.

This decision of the two governments has become an issue of heated controversy in religious circles. The protagonists of the move observe that there is nothing in the religion that disapproves of reliance on the opinion of astronomers; rather it is supported by this verse of Surat al-Nahl:

وَعَلامَاتٍ وَبِالنَّجْمِ هُمْ يَهْتَدُونَ

“...And way marks; and by the stars they are guided.” (16.16)

The antagonists state: The decision contradicts the above-mentioned prophetic tradition-

صوموا لرؤيته وأفطروا لرؤيته

That, because the word ru'yah (sighting) implies sighting the moon with the eyes, which was common among the people during the time of the Prophet (S). As to using a telescope or relying on astronomical calculations, they are inconsistent with the literal import of the tradition, they point out.

In fact, none of the sides has advanced sound reasons, because `guidance by the stars' implies determination of land and sea routes with the help of the stars, and not determination of days of months and new moons. As to the tradition, it does not contradict sound scientific knowledge, because `seeing' is a means for acquiring knowledge and not an end in itself, as is the case with any means that helps confirm facts.

However, in my opinion, the judgment of astronomers do not lead to certain knowledge, nor do they remove all doubts as removed by vision, because their judgments are based on probability not on certainty. This is evident from their divergent judgments about the night of the new moon as well as the time of its occurrence and the period that it remains (above the horizon).

If a time comes when the astronomers attain accurate and sufficient knowledge, so that there is consensus among them and they repeatedly prove to be right to the extent that their forecasts become a certainty like the days of the week, then it will be possible to rely upon them. Rather, then it will be obligatory to follow their judgments and to reject everything that goes against them. 4

- 1. Approximately 800 grams of wheat or something similar to it.

- 2. But the Hanafis observe: If he testifies before a qadi who rejects his testimony, it is wajib upon him to perform its qada' without liability to kaffarah (al-Fiqh `ala al-madhahib al-'arba`ah).

- 3. In 1939 the `Id al- Adha was observed on Monday in Egypt, on Tuesday in Saudi Arabia, and on Wednesday in Bombay.

- 4. Refer to the discussion on this issue in the first volume of our book Fiqh al-'Imam Jafar al-Sadiq (`a), the section on the proof of the new moon at the end of section on fasting bab al-sawm.

4. Zakat and Khums

Zakat

Zakat is of two kinds: on property and on individuals. The schools concur that payment of zakat is not valid without niyyah. Its obligation depends on the following conditions:

Conditions for Zakat on Property

1. The Hanafis and the Imamis observe: Sanity and adulthood are necessary for liability to zakat; hence the property of a child or an insane person is not liable to it.1

The Malikis, Hanbalis and Shafi'is state: Neither sanity nor adulthood is required: it is wajib on the property of a minor as well as an insane person and the guardian is responsible for its payment from his ward's property.

2. The Hanafis, Shafi'is and Hanbalis say: Zakat is not wajib upon a non-Muslim (al-Fiqh 'ala al-madhahib at-'arba'ah). According to the Imamis and the Malikis, a non-Muslim is as liable to it as a Muslim, without there being any difference.

3. Complete ownership is necessary for the incidence of zakat. Every school has elaborate discussions concerning the definition of 'complete ownership.' What is common in their observations is that the owner should have complete control over the property and must be able to dispense of it at his will. Hence lost property or property usurped from its owner - though he will retain its ownership - will not be liable to zakat. As to debt, it will be liable to zakat only after the creditor has recovered it (for example, the wife's dower owed by the husband), for a debt is not possessed unless collected. The rule applicable to the debtor will be discussed later.

4. A lunar year of uninterrupted possession for property other than grain, fruits and minerals. Details are given below.

5. The possession of a certain minimum (nisab) which differs with the kind of property liable to zakat, will be explained later.

6. ls a debtor who possesses property to the extent of the nisab liable to zakat? In other words, does debt prevent liability to zakat?

The Imamis and the Shafi'is state: The property's freedom from debt is not a condition; hence a debtor will be liable to zakat even if the debt covers his entire property equaling the nisab. Rather, the Imamis say: If one borrows something on which zakat is payable, in a quantity equaling its nisab and it remains in his possession for a year, the borrower shall be liable to zakat.

According to the Hanbalis, debt prevents liability to zakat. Hence a debtor who possesses property should first meet his debt; he will pay zakat if the remainder reaches the nisab limit, not otherwise.

The Malikis are of the opinion that debt prevents the incidence of zakat on gold and silver, not on grain, livestock and minerals. Therefore a debtor possessing gold and silver in the quantity of nisab is supposed to meet the debt, and zakat is not wajib upon him. But if the debtor possesses something other than gold and silver in the quantity of the nisab, he is liable to zakat.

The Hanafis observe: if the debt is a duty owed to God (haqq Allah). such as the obligation of hajj and kaffarah, and persons have no claims against him, such a debt does not prevent liability to zakat. But if the debt is owed to persons or to God when there is such a claim against him as outstanding zakat whose payment is demanded by the ruler (imam), such a debt prevents liability to zakat on all kinds of property except crops of the field and fruits.

All the schools concur that ornaments, jewelry, one's dwelling, clothes, household articles, mount, weapons and other things of personal use such as instruments, books and tools are not liable to zakat. The Imamis also exclude gold and silver ingots. Related details are given below.

Kinds of Property Liable to Zakat

The Noble Qur'an considers the needy as real sharers in the wealth of the rich. Verse 19 of Surah al-Dhariyat states:

وَفِي أَمْوَالِهِمْ حَقٌّ لِلسَّائِلِ وَالْمَحْرُومِ

And in their possessions is a share for the beggar and the deprived (51:19)

The verse does not differentiate between wealth acquired through agriculture, industry or trade in respect of this right, and hence the legists of all the schools acknowledge it as wajib in livestock, grain, fruits, currency and minerals.

However, they differ in delimiting some of these categories, in specifying the nisab applicable to some of them, and the size of the share of the needy in some others. Thus the Imamis consider it wajib to pay one-fifth (khums) from the profits of trade, while the four schools prescribe one-fortieth (2 1/2%) on merchandise. The same applies to minerals, from which the Hanafis, Imamis and Hanbalis prescribe payment of khums while the remaining two schools that of 2 1/2%. The following description gives the details of the points of agreement and difference of the schools.

Zakat on Livestock

There is a consensus that zakat is wajib upon three kinds of livestock: camels, cattle, sheep and goats. They concur that zakat is not wajib upon horses, mules and donkeys, except when they form a part of merchandise. The Hanafis consider horses to be liable to zakat only when these include mares.

Conditions for Zakat on Livestock:

There are four conditions for the incidence of zakat on livestock:

1. The Nisab:

The nisab of camels is as follows:

If the number of camels is 5, one sheep: if it reaches 10, two sheep: for 15, three sheep; and for 20, four. All the schools agree on this prescription. But if the number of camels reaches 25, the zakat according to the Imamis is 5 sheep, and a camel in its second year according to the other four schools. However, the Imamis consider that as zakat of 26 camels; thus if the number of camel reaches this limit they form a single nisab.

The schools concur that the zakat of 36 camels, is a camel in its third year; of 46 camels, a camel in its fourth year; of 61 camels, a camel in its fifth year; of 76 camels, two camels in their third year; of 91 camels, two camels in their fourth year.

The schools also concur that there is no additional zakat for camels over 91 and below 121. For this number the different opinions of the schools and their details can be found in elaborate works.

There is consensus that there is no zakat on less than 5 camels, as well as on the number above a particular nisab and below the next nisab.

Nisab of Cattle:

The zakat for every 30 cattle is a tabi' or tabi'ah (an ox or cow in its second year); for every 40, a musinnah (cow in its third year). Thus for 60, the zakat is two tabi'; for 70, one tabi' and one musinnah; for 80, two musinnah; for 90, three tabi’; for 100, two tabi' and one musinnah; for 110, two musinnah and one tabi'; for 120, three musinnah, or four tabi', and so on. No zakat is levied on a number which exceeds a certain limit but falls short of the next higher limit. All the schools concur regarding the above-mentioned nisab.2

'Tabi' is a cow which has completed a year and entered the second, and musinnah is one which has entered the third year. The Malikis define tabi' as one which has completed two years and entered the third, and musinnah as one which has completed three years and entered the fourth.

The Nisab of Sheep:

The schools concur that the zakat for 40 sheep is one sheep; for 121, two; for 201, three.
The Imamis state: If their number reaches 301, the zakat is four sheep up to 400; from then on for each extra 100 the zakat is one sheep.
The four Sunni schools observe: the zakat for 301, like that for 201, is three sheep up to 400, on which four sheep become due: thereafter for each extra 100 the zakat is one sheep.
There is consensus among the schools that a number between any two limit is exempt from zakat.

2. Grazing: 'Grazing livestock' is that which grazes freely on public pastures for most of the year and whose owner does not bear the cost of providing it with grass except rarely. This is a condition on which all the schools excepting the Maliki concur. The Maliki levy zakat on both 'grazing' and 'non-grazing' livestock.

3. One Year of Ownership: All the livestock in the nisab should be owned by its owner for a complete lunar year. Thus if its number falls short of the nisab even by one during the year, it will not be liable to zakat even if the nisab materializes at the end of the year (e.g. if a person owns 40 sheep at the beginning of the year and after a few months their number is reduced by one for some reason, such as sale, gift or death, and later becomes 40 again, zakat will not be levied at the end of the year). The Imamis. Shafi'is and Hanbalis concur regarding this condition, while the Hanafis observe: If the number falls below the nisab during the year but is resumed at the end of it, zakat will be levied as if the nisab had existed throughout the year.

4. The animals should not be those intended for work, such as an ox used for tilling or a camel for transport. Hence there is consensus among the schools, excepting the Maliki, that zakat is not levied on animals used for work, irrespective of their number. According to the Malikis, zakat is levied on both working as well as other animals without any difference.
The schools concur that if a person possesses many kinds of livestock of which no single kind reaches the number required for nisab, it is not wajib upon him to consider them jointly (thus if he has less than 30 cattle and less than 40 sheep, it is not wajib to make up the nisab of the cattle with the sheep or vice versa).

The schools differ where two persons jointly own a single nisab. The Imamis, Hanafis and Malikis state: They are not liable to zakat, together or singly, unless the share of each one of them separately reaches the nisab limit. The Shafi'is and the Hanbalis observe: Wealth owned jointly is liable to zakat if it reaches the nisab limit, even if each share falls short of it.

Zakat on Gold and Silver

The legists prescribe zakat on gold and silver if their respective nisabs are reached. According to them the nisab of gold is 20 mithqal (4.8 grams) and that of silver 200 dirhams (2.52 grams). They further require that the nisab be owned for one complete year. The rate of zakat on these two is 2 1/2%.
The Imamis observe: Zakat is wajib on gold and silver coins used as money, not on ingots or jewellery.

The four Sunni schools concur that zakat is wajib on gold and silver ingots in the same manner as on money coined from them. They differ regarding zakat on jewelery made of them; some consider it wajib, others don't.
The above remarks concerning zakat on gold and silver coins will suffice, for they have practically no role in our times. As to bank-notes, the Imamis prescribe the payment of one-fifth (khums) of the surplus left after a year's expenses. Details are given below.
The Shafi'is, Malikis and Hanafis state: Zakat is not wajib on bank-notes unless all the conditions including nisab and the completion of a year are fulfilled.
The Hanbalis say: Zakat is not wajib on bank-notes except when converted into gold or silver.

Zakat on Crops and Fruits

The schools concur that the rate of zakat on crops of the field and fruits is 10% if irrigated by rain or river water, and 5% if irrigated by Artesian wells and the like.
There is also consensus among the schools, excepting the Hanafi, that the nisab for crops and fruits is 5 wasq (60 sa', approx. 910 kg). There is no zakat under this limit. The Hanafis prescribe zakat irrespective of the quantity of the produce.

The schools differ regarding the kinds of crops and fruits on which zakat is wajib. The Hanafis prescribe zakat on all fruits and crops and all agricultural produce except wood, hay and Persian cane.
The Malikis and the Shafi'is prescribe zakat on everything that is stored as a provision, such as wheat, barley, rice, dates and raisins.
The Hanbalis require zakat on everything that is weighed and stored from among fruits and grains.
The Imamis do not levy zakat on anything except wheat and barley among grains, and dates and raisins from among fruits. Apart from these, it is mustahab, not wajib.

Zakat on Merchandise

'Merchandise' (mal al-tijarah) consists of property whose ownership is acquired through commercial transactions made for profit. It is necessary here that the ownership be acquired through the owner's own activity; hence, if acquired through inheritance, there is consensus that it will not be considered merchandise.

According to the four Sunni schools, zakat is wajib on merchandise. The Imamis consider it mustahab. The zakat is paid from the price of the commodities of trade at the rate of 2 1/2%.
The schools concur that a year's passage is necessary for the incidence of zakat. It is considered to begin from the time commercial transactions commence. When a year passes and profit is made, zakat becomes payable.

The Imamis observe: The capital should remain undiminished throughout the year. Thus if it is reduced during the year, zakat will not be levied. When restored, the new year will be reckoned from the date of recovery.

According to the Shafi'is and the Hanbalis, the criterion for liability to zakat is only the position at the end of year. Thus if the nisab is not reached at the beginning of the year or during it but only at its end, zakat becomes wajib.

The Hanafis state: The criterion is the position at the beginning and the end of the year not what happens in its middle. Thus if at the beginning of the year a person owns merchandise fulfilling the nisab and its value falls below this limit during the year recovering to reach the limit at the end of the year, he will be liable to zakat. But if the nisab is not reached either at the year's beginning or end, zakat will not be levied.
Also, the value of merchandise should reach the nisab. On evaluation its total value will be compared with the nisab of gold and silver; zakat will be levied if it equals or exceeds any of them, not if it is less than the nisab of silver. The authors of al-Fiqh 'ala al-madhahib al-'arba'ah (1922) calculate this nisab as 529.2/3 Egyptian piasters.

The Character of Liability

The schools differ as to whether zakat pertains to the property itself that is liable to zakat, so that one entitled to receive it has a share in it together with the owner (like all property owned jointly by partners), or if it is a personal liability like other debts, though it pertains to a specific property, like the debt pertaining to the legacy of a deceased person.

The Shafi'is, Imamis and Malikis state: Zakat is wajib upon the zakatable property itself and its recipient is a real co-sharer in it with the owner in accordance with the statement of God, the Most High:

وَفِي أَمْوَالِهِمْ حَقٌّ لِلسَّائِلِ وَالْمَحْرُومِ

And in their wealth is a share for the beggar and the deprived. (51:19)

They point out that there is also a tawatur of traditions stating that God has made the rich and the poor partners in wealth. However, the Shari'ah has out of lenience permitted the owner to pay zakat out of his other assets not subject to zakat.

The Hanafis observe: The incidence of zakat pertains to the property subject to zakat itself. It is like the claim of a mortgagor over mortgaged property and is not met except by being handed over to the recipient.

Two views have been narrated from Imam Ahmad, one of which agrees with the Hanafi position.

Classes Entitled to Receive Zakat

The schools concur that there are eight different classes of those who deserve to receive zakat as mentioned in the following verse of Surat al-Tawbah:

إِنَّمَا الصَّدَقَاتُ لِلْفُقَرَاءِ وَالْمَسَاكِينِ وَالْعَامِلِينَ عَلَيْهَا وَالْمُؤَلَّفَةِ قُلُوبُهُمْ وَفِي الرِّقَابِ وَالْغَارِمِينَ وَفِي سَبِيلِ اللَّهِ وَاِبْنِ السَّبِيلِ

The sadaqat are for the poor (fuqara') and the needy (masakin), their collectors (‘amilin), those whose hearts are to be conciliated (mu'allafatu qulubuhum), the ransoming of slaves (riqab), debtors (gharimin), in God's way (sabil Allah), and the traveler (ibn al-sabil) ... ( 9:60)

The views of the schools in determining these classes are as follows:

1. The Needy (Faqir)

According to the Hanafis, ‘faqir’ is someone who owns less than the nisab even if he is physically fit and earning. As to one who owns any property equal to the nisab of its category after providing for his basic needs - such as house, articles, clothes, and etc. - it is not valid to spend zakat on him. The proof they offer is that zakat becomes wajib upon one who owns assets equal to the nisab of anything and one who is himself liable to zakat cannot receive it. According to the other schools, the criterion is need, not ownership: zakat is haram for a needy person although he may own one or several nisabs, because the word 'faqr' means need. God, the Exalted.says:

يَاأَيُّهَا النَّاسُ أَنْتُمْ الْفُقَرَاءُ إِلَى اللَّهِ

O men, you are the ones that have need of God. (35:15)

The Shafi'is and the Hanbalis say: One who possesses half of what suffices him will not be considered faqir; consequently it is not permissible for him to receive zakat.

According to the Imamis and the Malikis, ‘faqir’ in the context of the Shari'ah is one who does not possess a year's provision for himself and his family. Thus one who owns property or livestock not sufficient to provide his family for a whole year can be given zakat.
The Imamis, Shafi'is and Hanbalis further observe: It is not permissible for one capable of earning to receive zakat.
The Imamis and the Malikis permit him to receive zakat and it may be given to him.

The Imamis state: One's claim to be faqir will be accepted without requiring a witness or an oath, provided he has no visible wealth and the falsehood of his claim is not known. This is because once two men came to the Prophet (S) while he was distributing sadaqah and asked him to give them something from it. The Prophet (S) lifted his eyes and fixing his glance on them said: "If you like I will give it to you, for there is no share in it for one who is well-provided or one who makes an earning." Thus he left it to them to benefit from zakat without requiring witness or oath.

2. Al-Miskin

The Imamis, Hanafis and Malikis consider 'miskin' to be one who is worse off than a faqir person.
The Hanbalis and the Shafi'is, however, define faqir as someone worse off than a miskin because, they say, 'faqir' is one who has nothing or lacks even half of what he needs, while 'miskin' is one who possesses more than half of what he needs, and he is provided the other half from zakat.
Whatever be the case, there is no essential difference between the schools in their interpretation of the tenns 'faqir' and 'miskin’, for the objective is that zakat be used to fulfil the urgent need for housing, food, clothing, medical care, education, and such other needs.

The schools, excepting the Maliki, also concur that it is not permissible for one liable to zakat to give it to his parents, grandparents, children, grandchildren or wife. The Malikis allow its payment to grandparents and grandchildren because their maintenance is not one's obligation in their opinion.

There is also consensus that it is valid to give zakat to brothers, uncles and aunts. However, the prohibition on giving of zakat to one's father and children pertains only to the share meant for the two classes of the needy (fuqara' and masakin). Hence if they belong to a class other than these two, they are permitted to receive it, e.g. if the father or the son is a warrior fighting in the way of God, or one of 'those whose hearts are to be conciliated,' or a debtor whose debt arises out of a legitimate act, or one involved in a case of peacemaking, or a collector of zakat, because these classes of recipients are entitled to receive it even if they are well off (Al-'Allamah al-Hilli, al-Tadhkirah, vol. 1, "Bab al-Zakat").

However, it is preferable to give zakat to a relative whose maintenance is not wajib upon the giver.

The schools differ regarding the transfer of zakat from one town to another. The Hanafis and the Imamis observe: It is preferable and more meritorious to spend the zakat on the residents of the town except where some urgent need necessitates its transfer to another place.
The Shafi'is and the Malikis do not permit the transfer of zakat from one town to another.
The Hanbalis allow its transfer to a place at a distance where salat does not become qasr on one making the journey, and forbid its transfer beyond that distance.

3. Al-'Amilin

A per consensus, by ‘amilun ‘alayha’ in the verse is meant the collectors of zakat.

4. Al-Mu'allafatu qulubuhum

They are those who are won over by paying a part of zakat in the interest of Islam. The schools differ as to whether this category still holds or if it has been abrogated, and if not abrogated whether this winning over is restricted to non-Muslims or includes Muslims of weak conviction as well.

The Hanafis observe: This principle was introduced in the Shari'ah at the advent of Islam when the Muslims were weak. But now, when Islam has become firmly established, this provision has no applicability due to the absence of its cause.

The other schools have elaborately discussed the different kinds of 'those whose hearts are to be conciliated,' and their observations may be summarized as follows:
The regulation holds and has not been abrogated; the share of zakat pertaining to al-mu’allafatu qulubuhum can be given to a Muslim as well as a non-Muslim, on condition that this bestowal secures the advantage of Islam and Muslims. The Prophet (S) gave zakat to Safwan ibn Umayyah who was an idolater, and to Abu Sufyan and his like, after they embraced Islam, as a measure of precaution to safeguard Islam and Muslims from their malice.

5. Al-Riqab

It implies the buying of slaves with zakat fund to set them free. This provision clearly shows that Islam devised numerous ways to end slavery. In any case, this provision has no practical application in our times.

6. Al-Gharimin

They are the debtors who have fallen in debt for some non-sinful cause. The schools concur that they may be given zakat to help them repay their debts.

7. Sabil Allah

The four Sunni schools consider it to imply those warriors who have volunteered to fight for the defence of Islam.
The Imamis observe: Apart from warriors, this category includes building of mosques, hospitals, schools and other public works.

8. Ibn al-Sabil

It means a traveler cut off from his hometown and means. Hence it is valid to give him zakat to an extent that will enable him to reach his hometown.

Subsidiary Issues

1. The schools concur that it is haram for one belonging to the Bani Hashim to receive zakat from someone who is not a Hashimite himself. But he may receive zakat from a Hashimite.

2. Is it permissible to give one's entire zakat to a single miskin?

The Imamis permit it even if it makes the recipient well off by being given all at once.
The Hanafis and the Hanbalis state: It may be given to a single person if this does not make him sufficiently provided.
The Malikis permit giving of one's entire zakat to a single recipient provided he is not a collector of zakat, because he may not take more than the remuneration of his work.
The Shafi’is are of the opinion that it is obligatory to so spread out the zakat as to include all the eight categories, if they exist; in the absence of some of them it should be distributed among the categories present. A minimum of three persons from each category should receive it.

3. The property liable to zakat is of two types. First, that which is possessed for a year, such as livestock and merchandise. In this case, zakat does not become obligatory before the completion of a year. A 'year' in the opinion of the Imamis means eleven months of possession of the property liable to zakat and the setting in of the twelfth month.

The second type does not require the passage of a year, such as fruits and grains, and zakat becomes wajib upon them at the time of harvest. As to the time of payment, there is consensus that it is when the fruits are gathered and dried in the sun, and when the crop is harvested and the straw and husk removed. One who delays taking out the zakat after its time has arrived and its payment has become possible is a sinner (though he remains liable to it), because he has delayed the carrying out of a time-bound obligation and been negligent.

Zakat al-Fitr

Zakat al-fitr is also called ‘zakat al-abadan’ (the zakat of the bodies). Its pertinent issues include the following questions: by whom it is to be paid? for whom? what is its quantity, its time of payment, and who are its eligible recipients?

Those on Whom it is Wajib

The four Sunni schools state: Zakat al-fitr is wajib upon every financially capable (qadir) Muslim, major or minor. Thus it is wajib for a guardian to pay it out from the property of his ward to the needy.
A financially capable person in the opinion of the Hanafis is one who owns property equal to a nisab of zakat or something equal in value after meeting all his needs. According to the Shafi'is, Malikis and Hanbalis, it is one who possesses anything in excess of his and his family's food on the day and night of the 'Id, apart from such essential needs as house, clothes and other necessities. The Malikis add: One who is capable of borrowing will be considered capable if he hopes to repay it.

According to the Imamis, zakat al-fitr is wajib only upon a capable sane adult. Therefore it is not wajib on a child's property or that of an insane person in accordance with the tradition:

رُفع القلم عن ثلاثة: عن الصبي حتى يحتلم، وعن المجنون حتى يفيق، وعن النائم حتى يستيقظ

The (lawgiver's) pen has absolved these three of obligations: a child, till he reaches the age of puberty; an insane person, until he regains sanity, and a person in sleep, until he wakes up.

A financially capable person in their opinion is one who possesses, either actually or potentially, a year's provision for himself and his family - such as when he possesses an asset that he can utilize or a skill by which he can earn.

The Hanafis observe: It is wajib for a capable person to pay the zakat al-fitr for himself, his minor children, his servant, and his major child if he happens to be insane. But if the major child is sane, his zakat is not wajib upon the father. Also the wife's zakat is not wajib upon the husband.
The Hanbalis and the Shafi'is consider it wajib to pay the zakat al-fitr for oneself as well as those whose maintenance is wajib upon one, such as wife, father and son.

The Malikis say: It is wajib for oneself and for those one is maintaining; they include: one's indigent parents; sons, who have no means of their own, provided they are still young and incapable of earning themselves; indigent daughters who have not yet been married; and wife.

The Imamis state: It is wajib to pay zakat al-fitr for oneself and for all those whom one feeds on the night of ‘Id al-fitr, irrespective of whether their maintenance is wajib upon one or not, and regardless of their being children or adults, Muslims or non-Muslims, relatives or strangers. Hence if a guest comes to his house moments before the new moon for the month of Shawwal is sighted and joins the family, it becomes wajib to pay zakat al-fitr for him as well. Similarly, if a child is born to him or he marries before or at the time of sunset preceding the night of 'Id al-fitr. But if the child is born, or he marries, or a guest arrives, after sunset, it will not be wajib to pay the fitrah for them. Anyone whose fitrah is wajib upon another is not required to pay his own fitrah even if he is wealthy.

Its Quantity

The schools, excepting the Hanafi, concur that the wajib quantity of fitrah per head is one sa’ (approx. 3 kg) of wheat, barley, dates, raisins, rice, maize or any other staple crop. The Hanafis consider half a sa' of wheat per head as sufficient.

Time of Wujub

The Hanafis observe: Its wujub commences from the dawn of the day of 'Id and continues till the end of life, because zakat al-fitr is among those obligations which do not have a time limit and it is valid to pay it early or late.

The Hanbalis say: It is haram to delay its payment beyond the day of 'Id and it may be paid two days before the 'Id, though not earlier.

The Shafi'is state: The time of its wujub extends from the last part of Ramadan (i.e. from a little before sunset on the last day of Ramadan) up to the first part of Shawwal. It is sunnah to set it aside during the early part of the day of 'Id and haram to delay it beyond the sunset of the day without an excuse.

There are two narrations from Imam Malik, and in accordance with one of them its wujub commences from sunset on the last day of Ramadan.

The Imamis observe: Zakat al-fitr becomes wajib with the falling of the night of the 'Id, and its payment is wajib from sunset up to noon on the day of ‘Id; it is meritorious to pay it before salat al-‘Id. But if no deserving person (mustahiqq) is found at that time, it should be set aside with the intent of giving it at the first opportunity. If the payment is delayed beyond this time despite the presence of a deserving recipient, it remains wajib to pay it later because this obligation is not annulled in any situation.

Mustahiqq

The schools concur that those entitled to receive ordinary zakat, as per the Qur'anic verse:

إِنَّمَا الصَّدَقَاتُ لِلْفُقَرَاءِ وَالْمَسَاكِينِ

are also entitled to receive zakat al-fitr.
In the place of paying in kind, it suffices to pay the price of the cereals, and it is mustahabb to give it to one's needy relative, and then to the neighbours, as there is a tradition which says:

جيران الصدقة أحقّ بها

The neighbour of (someone paying) sadaqah is more entitled to receive it.

- 1. Except that sanity and adulthood are not considered essential for liability to zakat on crops of the field and fruits in the opinion of the Hanafis.

- 2. The Hanafis observe: The number of cows between the two limits is exempt from zakat except when their number is between 40 and 60. After 40, zakat will be levied n each extra cow at the rate of 2 ½% of a musinnah (al-Fiqh ‘ala al-madhahib al-arba’ah, bab al-zakat).

Khums

The Imamis assign a separate chapter to khums in their books on fiqh, after the chapter on zakat, and its basis is verse 41 of Surat al-Anfal:

وَاعْلَمُوا أَنَّمَا غَنِمْتُمْ مِنْ شَيْءٍ فَأَنَّ لِلَّهِ خُمُسَهُ وَلِلرَّسُولِ وَلِذِي الْقُرْبَى وَالْيَتَامَى وَالْمَسَاكِينِ وَابْنِ السَّبِيلِ

Know that, whatever booty you take, the fifth of it is God's and the Messenger's, and the near kinsman's and the orphans', and for the needy and the traveler (8:41)

They do not confine the scope of the term 'ghanimah' to the spoils of war acquired by Muslims, but consider it to include seven categories, mentioned below along with what information we could gather about the view of other schools regarding each category:

1. Booty acquired in war: All the schools concur that it is liable to khums.

2. Minerals: It includes everything that is of value extracted from the earth - apart from soil - e.g. gold, silver, lead, copper, mercury, petroleum, sulfur, etc.
The Imamis observe: It is wajib to pay khums (20%) on minerals if their value reaches the nisab of gold, which is 20 dinars, or the nisab of silver, which is 200 dirhams. There is no khums below this limit.

The Hanafis state: There is no nisab for minerals, and their khums is wajib irrespective of value.
The Malikis, Shafi'is and Hanbalis are of the opinion that there is no levy if the mineral extracted is lesser in value than the nisab, but if it reaches that limit it is liable to zakat at the rate of 2 1/2%.

3. Rikaz: It consists of articles of value buried at a place whose inhabitants have perished and there is no sign left of them, such as sites which the archaeologists excavate for this purpose.

The four schools state: Khums is wajib on rikaz, and it has no nisab and therefore entails khums irrespective of its worth.
The Imamis observe: Rikaz is like minerals with respect to nisab and liability to khums.

4. The Imamis say: That which is retrieved from the sea through diving, e.g. pearls and corals, is liable to khums if its value is one dinar or more after deducting the cost of retrieval.
In the opinion of the four schools, there is no levy on such things, whatever their value.

5. The Imamis observe: Khums is wajib upon the surplus remaining after a person has made provision for himself and his family for a period of one year, irrespective of his profession and the mode of income - trade or industry, agriculture or office work, or work on daily wages, or real estate, gift or something else. Hence if there remains a single piaster or anything of that value after a year's expenditure, it is liable to khums.

6. The Imamis state: If a person comes to acquire some illegitimate wealth which gets mixed with his legitimate wealth and neither the quantity of the haram wealth nor its owner is known, he is obliged to pay khums from his whole wealth in the way of God. If he does so, his remaining wealth will become halal irrespective of whether the illegitimate portion was lesser or greater than a fifth.

But if the illegitimate wealth is identifiable, it is obligatory to return it itself; and if it is not identifiable but its quantity is known, he will return that quantity fully even if it equals all his wealth. If he knows the people from whom he has embezzled it without knowing the quantity of the portion due to them, he is bound to seek their satisfaction by reaching a settlement or seeking their pardon. In short, the payment of khums from adulterated wealth is correct only when both the quantity and the owner of its illegitimate portion are not known.

7. According to the Imamis, if a dhimmi purchases land from a Muslim, the dhimmi is personally liable to pay its khums.

Uses of Khums

The Shafi'is and the Hanbalis observe: Khums will be divided into five parts, of which one part will be the share of the Prophet (S) and used for the benefit of Muslims. Another part will be the share of dhawi al-qurba, and they are those who have descended from Hashim through their fathers, irrespective of any distinction between the rich or the poor among them. The three other parts will be spent on orphans, the poor and the travelers, whether they belong to the Bani Hashim or not.

The Hanafis consider the share of the Prophet as annulled after his demise. As to the dhawi al-qurba (i.e. those belonging to Bani Hashim), they are like other poor in receiving khums, they say; they will be entitled to it on account of their need, not by virtue of their kinship with the Prophet (S).
The Malikis state: The ruler (imam) has complete authority over khums funds and he may use it for any purpose that he deems fit.

According to the Imamis, the shares of God, the Prophet (S) and the dhawi al-qurba will be paid to the Imam (A) or his representative, to be spent for the benefit of the Muslim community. The other three parts are to be given to the orphans, destitutes and travelers belonging exclusively to Banii Hashim.

We conclude this chapter with al-Shi'rani's words in his Kitab al-mizan (the chapter on zakat al-ma’din). He says:

The ruler (imam) is authorized to tax the mine owners in accordance with the interest of the public exchequer to avoid the concentration of wealth in the hands of mine owners who may thereby seek political power and spend money on the troops. This would lead to evil (political) consequences (fasad).

This is another way of expressing the "modern" view that capital enables the capitalists to gain control of the government. 406 years have passed since the death of the author of this opinion.

5. Hajj, The Pilgrimage

The Hajj

The Acts of the Hajj

At the beginning, in order to make it easier for the reader to follow the opinions of the five schools of fiqh about various aspects of Hajj, we shall briefly outline their sequence as ordained by the Shari'ah.

The Hajj pilgrim coming from a place distant from Mecca assumes ihram1 from the miqat2 on his way, or from a point parallel to the closest miqat, and starts reciting the talbiyah.3 In this there is no difference between one performing ‘Umrah mufradah or any of the three types of Hajj (i.e. tamattu, ifrad, qiran). However, those who live within the haram4 of Mecca assume ihram from their houses.'5

On sighting the Holy Ka'bah, he recites takbir اللَّهِ أَكْبَر (i.e. ‘God is the greatest') and tahlil لا إله إلا الله (i.e. ‘There is no god except Allah') which is mustahabb 6 (desirable, though not obligatory). On entering Mecca, he takes a bath, which is again mustahabb. After entering al‑Masjid al‑Haram, first he greets the Black Stone (al‑Hajar al‑'Aswad) ‑ if possible kisses it, otherwise makes a gesture with his hand - then makes the tawaf (seven fold circumambulation of the Ka'bah) of the first entry, which is mustahabb for one performing Hajj al‑'ifrad or Hajj al-qiran. Then he offers the two raka'at of the tawaf, again greets the Black Stone if he can, and leaves al‑Masjid al‑Haram. After this, he remains in the state of ihram in Mecca. On the day of tarwiyah, i.e. the eighth day of the month of Dhu al‑Hijjah, or if he wants a day earlier, he goes forth towards ‘Arafat.

If the pilgrim has come for ‘Umrah mufradah or Hajj al-tamattu; he performs the tawaf of the entry, which is obligatory (wajib) for him, and prays the two raka'at of the tawaf. Then he performs the sa’y between Safa and Marwah, and, following it, the halq (complete head shave) or taqsir 7 (partial shortening of the hair of the head). Then he is relieved of the state of ihram and its related restrictions, and things prohibited in ihram become permissible for him, including sexual intercourse.8 Then he proceeds from Mecca after assuming ihram for a second time, early enough to be present at the wuquf (halt) at ‘Arafat (referred to as ‘mawqif; i.e. the place of halting) at noontime on the ninth of Dhu al‑Hijjah. Assumption of ihram on the day of tarwiyah, i.e. eighth Dhu al‑Hijjah, is preferable.

The Hajj pilgrim, irrespective of the type of Hajj he intends to perform, turns towards ‘Arafat, passing through Mina. The period of the wufuq at ‘Arafat is, for the Hanafi, Shafi’i, and Maliki schools, from the noon of the ninth until the day break of the tenth; for the Hanbali school, from the daybreak of the ninth until the daybreak of the tenth; and for the Imamiyyah, from noon until sunset on the ninth, and in exigency until the daybreak of the tenth. 9 The pilgrim offers invocations (dua') at ‘Arafat, preferably (istihbaban) in an imploring manner.

Then he turns towards Muzdalifah (also called al‑Mash'ar al‑Haram), where he offers the Maghrib and Isha' prayers on the night of the ‘Id (i.e. the tenth of Dhu al‑Hijjah). Offering the two prayers immediately after one another is considered mustahabb by all the five schools. According to the Hanafi, Shafi'i, and Hanbali schools, it is obligatory to spend this night (i.e. the night of the ‘Id) at Muzdalifah; for the Imamiyyah, it is not obligatory but preferable. After the daybreak, he makes the wuquf at al‑Mash'ar al‑Haram, which is wajib for the Imamiyyah and mustahabb for other schools. And at Muzdalifah, preferably, he picks up seven pebbles to be thrown at Mina.

After this, he turns towards Mina before sunrise on the day of ‘Id. There he performs the ritual throwing of stones, called ramy, at Jamarat al‑‘Aqabah, no matter which of the three kinds of Hajj he is performing. The ramy is performed between sunrise and sunset, preferably (istihbaban)
accompanied by takbir and tasbi سُبْحَانَ اللَّهِ (i.e. proclaiming God's glory by saying ‘How far God is from every imperfection!').

Then if a non‑Meccan on Hajj al-tamattu; he should slaughter the sacrificial animal (a camel, cow or a sheep), by agreement of all the five schools. However, it is not obligatory for one on Hajj al‑'ifrad; again by consensus of all the five schools. For one on Hajj al-qiran, the sacrifice is obligatory from the viewpoint o the four Sunni schools, and for the Imamiyyah it is not obligatory except when the pilgrim brings the sacrificial animal (al‑hady) along with him at the time of assuming ihram.

For a Meccan performing Hajj al-tamattu; the sacrifice is obligatory from the viewpoint of the Imamiyyah school, but not according to the four Sunni schools.

After this, he performs the halq or taqsir, irrespective of the kind of Hajj he is performing. After halq or taqsir, everything except sexual intercourse becomes permissible for him according to the Hanbali, Shafi'i and Hanafi schools, and according to the Maliki and Imamiyyah schools, everything except intercourse and perfume.

Then he returns to Mecca on the same day, i.e. the day of the ‘Id, performs the tawaf al‑ziyarah, prays its related two raka'at, regardless of which kind of Hajj he is performing. After this, according to the four Sunni schools, he is free from all restrictions including that of sexual intercourse. Then he performs the sa’y between Safa and Marwah if on Hajj al-tamattu; by agreement of all the five schools. For the Imamiyyah school, the sa’y after tawaf al‑ziyarah is also obligatory for one performing Hajj al-qiran and Hajj al‑'ifrad. But for other schools, it is not obligatory if the pilgrim had performed the sa’y after the tawaf of first entry, otherwise it is.

For the Imamiyyah, it is obligatory for all the types of Hajj to perform another tawaf after this sa’y. Without this tawaf, called tawaf al-nisa; one is not relieved of the interdiction of abstinence from intercourse.

Then the pilgrim returns to Mina on the same day, i.e. the tenth, where he sleeps on the night of the eleventh, performs the threefold throwing of stones (ramy al jamarat) during the interval from the noon until the sunset of the eleventh‑ by consensus of all the five schools. For the Imamiyyah, the ramy is permissible after sunrise and before noon. After this, on the day of the twelfth, he does what he had done the day before. All the legal schools agree that he may now depart from Mina before sunset. And if he stays there until sunset, he is obliged to spend the night of the thirteenth there and to perform the threefold ramy on the day of thirteenth.

After the ramy, he returns to Mecca, before or after noon. On entering Mecca, he performs another tawaf, tawaf al‑wada’ (the tawaf of farewell), which is mustahabb for the Imamiyyah and Maliki schools and obligatory for the non‑Meccans from the viewpoint of the remaining three. Here the acts of the Hajj come to conclusion.

The Conditions (Shurut) that make the Hajj Obligatory (Wajib)

The conditions (shurut) which make the Hajj obligatory (wajib) for a Muslim are: maturity (bulugh), sanity (‘aql), and ‘capability' (istita'ah).

The Proviso of Bulugh

The Hajj is not obligatory for children, regardless of whether a child is of the age of discretion (mumayyiz) or not (ghayr mumayyiz). For a mumayyiz child, the Hajj is voluntary and valid. However, it does not relieve him/her of the obligation to perform the obligatory Hajj (called hijjat al‑'Islam) later as an adult possessing istita'ah; this, in case he/she does not attain adulthood before the wuquf. On this all the five schools of fiqh are in agreement.

It is permissible for the guardian (wali) of a ghayr mumayyiz child to take him along on the Hajj pilgrimage. In that case, he puts on the child the dress of ihram; instructs him to say the talbiyah, if the child can say it well, or otherwise says it himself on the child's behalf; and is cautious lest the child commits some act unlawful (haram) for the pilgrims (hujjaj). The accompanying guardian also tells him to perform every act that the child can perform himself, and what he cannot, the guardian performs it on the child's behalf.

The schools of fiqh differ on two questions relating to the Hajj of a mumayyiz child: firstly, whether his Hajj is valid, irrespective of the permission of the guardian; secondly, whether he is relieved of the obligation of Hajj if he attains adulthood before mawqif. According to the Imamiyyah, Hanbali, and Shafi'i schools, the guardian's permission is a provision for the ihram to be valid. According to Abu Hanifah, the idea of validity is inapplicable to the child's Hajj, even if mumayyiz, and regardless of whether he obtains the permission of the guardian or not; because, according to him, there is nothing to a child's Hajj except its significance as an exercise (Fath al‑Bari, al‑Mughni, al‑Tadhkirah).

According to the Imamiyyah, Hanbali and Shafi’i schools, if the child attains adulthood before mawqif, his obligatory duty of Hajj (hijjat al‑'Islam) is thereby fulfilled. And according to Imamiyyah and Maliki schools, the duty is fulfilled if he renews ihram (as an adult), otherwise not; which means that he should start the Hajj all over again from the beginning. (al‑Tadhkirah)

Insanity

Basically the condition of insanity relieves a person of all duties. Even if he was to perform the Hajj, and presumably in the way expected of a sane person, it would not fulfil his obligatory duty were he to return to sanity. If his insanity is periodic, when regained for a sufficiently long interval it is wajib for him to perform the Hajj with all its conditions and in all its details. However, if the interval of sanity is not sufficient to perform all the acts of the Hajj, he is quit of the obligation.

Istita’ah

All the five schools of fiqh agree that istita’ah is a requirement for the Hajj duty to become obligatory as mentioned by the Qu’ranic verse:

مَنِ اسْتَطَاعَ إِلَيْهِ سَبِيلًا

(“… whoever is able to make his way there”) 10 .

However, there is disagreement about the meaning of istita’ah. In hadith it has been defined as consisting of "al‑zad wa al‑rahilah". ‘Al‑rahilah' implies the expenses of to and fro journey to Mecca, and ‘al‑zad' stands for the expenses required for transport, food, lodging, passport fees, and the like. Moreover, the funds needed to meet such expenses must come out of the surplus after paying one's debts, after arranging for one's family's livelihood, meeting the requirements of one's source of income (such as land for a farmer, tools for a craftsman, capital for a tradesman, and so on), and without compromising the security of his life, property and honour.

All schools agree about it except the Malikis, who say that the duty of Hajj is obligatory for anyone who can walk. The Malikis also do not consider the necessity of providing for the living expenses of the family. Rather, they consider it compulsory for one to sell off his essential means of life, such as land, livestock, tools, and even books and unessential clothes. (al‑Fiqh ‘ala al‑madhahib al‑'arba’ah).

If a person upon whom the Hajj duty is not obligatory due to absence of istita'ah, takes upon himself the burden and performs the Hajj, in case he attains istita'ah afterwards, is his first Hajj sufficient or should he perform the Hajj once again? According to the Maliki and Hanafi schools, yes, repetition is not compulsory. According to the Hanbali school, yes, but a duty left unattended, such as an unpaid debt, must be discharged.

According to the Imamiyyah school, it does not suffice the obligation of Hajj if he attains istita'ah afterwards, because the provisional is inseparable from the provision both in its presence and its absence. The Hajj performed before the attainment of istita'ah is considered supererogatory (nafl). Later, with its realization, repetition of the Hajj becomes obligatory.

Immediacy (al-Fawr)

The Imamiyyah, the Maliki, and the Hanbali schools consider the obligation (wujub) of the Hajj duty to be immediately applicable (fawri); i.e. it is not permissible to delay it from the moment of its possibility. It is sinful to delay, though the Hajj performed with delay is correct and fulfils the obligation. The author of al-Jawahir says:

The immediacy of the obligation of Hajj means that it is necessary to take initiative to perform the Hajj in the first year of attaining istita'ah, and failing that at one's next earliest opportunity....Thereafter, there is no doubt about the sinfulness of the delay if one were to forgo the first opportunity in the case of absence of another.

According to the Shafi’i school, the obligation of Hajj is not immediate (upon attainment of istita'ah); rather one may delay it and perform it when he wishes.11 According to Abu Yusuf, the Hajj is an immediate obligation. Muhammad ibn al‑Hasan considers delay (tarakhi) permissible. Abu Hanifah has no explicit text on the matter, though some of his contemporaries state that he implicitly believes in the immediacy of the obligation.

Secondary Issues Related to Istita’ah

Women and the Hajj

Are there any additional conditions for women with regard to performance of the Hajj? All the five schools agree that it is not required that a woman should obtain the husband's permission for the obligatory Hajj duty, nor may he prevent her from undertaking it. However, there is a difference of opinion about whether the Hajj is obligatory upon her or not if she does not find a husband or a mahram 12 to accompany her on the journey.

According to the Imamiyyah, Maliki and Shafi’i schools, the mahram's company or that of the husband is not at all a condition, regardless of whether she is young or old, married or unmarried; since the mahram's company is a means of her safety, not an end in itself. Accordingly, we have two cases: either she feels confident of her security on the journey, or she doesn't. In the first case, the Hajj is obligatory upon her and the mahram's company is irrelevant. In the second case, she lacks the requirement of istita'ah, in spite of the mahram's company.

Accordingly, there is no essential difference between a man and a woman in this respect.

According to the Hanbali and Hanafi schools, the company of the husband or mahram is a provision for the woman's Hajj, even if she were old. It is not permissible for her to perform the Hajj without his company. The Hanafi school further stipulates the condition that her location should be at a distance of three days' journey from Mecca.

Bequest (al‑Badhl)

Al‑Mughni, a text of Hanbali fiqh, states: "If a person bequeaths money to another, it is not binding upon him to accept it, and it does not make the recipient mustati’ (possessing istita'ah), irrespective of whether the bequeathed is a relative or a stranger, regardless of whether the bequest suffices for the expenses of the journey and food. According to al‑Shafi’i, if the bequest is made by one's son, enough to enable him to undertake the Hajj journey, the Hajj becomes obligatory. This is because it enables him to perform the Hajj without having to bear a stranger's favour or without any accompanying encumbrance or harm.

According to the Imamiyyah school, if the bequest is an unconditional gift made without the provision of performing the Hajj by the recipient, the Hajj is not binding, irrespective of who makes the bequest. But if the bequest is made with the condition that one perform the Hajj, the acceptance of the bequest is binding and may not be rejected, even if the bequest is made by a stranger; since it makes him mustati ‘ to undertake the pilgrimage.

Marriage

What if one has only enough money either to get married or to perform the Hajj? Which of them is prior? The Hanafi text Fath al‑qadir (vol. II, "Bab al‑Hajj") mentions this question being put to Abu Hanifah, who, in his reply, considered that priority lies with the Hajj. The generality (itlaq) of this answer in which he gives priority to the Hajj, taking into consideration that marriage is obligatory under certain conditions, allows us to conclude that for Abu Hanifah delay in Hajj is not permissible.

According to the Shafi'i, Hanbali and Imamiyyah scholars, marriage has priority if there is likelihood of distress (haraj) or difficulty (mashaqqah)in refraining from marriage. In that case priority does not lie with the Hajj. (Kifayat al‑'akhbar, al‑Mughni, al‑‘Urwat al‑wuthqa)

Khums and Zakat

Payment of the khums and zakat has priority over the Hajj. The condition of istita'ah is not realized until both are paid off, like other kinds of debts.

Istita'ah by Chance

If someone travels to a place in the vicinity of the holy city of Mecca, on business or for some other purpose, and his stay continues until the Hajj season, and if it is possible for him to reach the Holy Ka'bah, he thereby becomes mustati’. And if he were to return home without performing the Hajj, by consensus of all the schools, he is not relieved of the obligation.

Istinabah (Deputation)

The Islamic duties (‘ibadat) are divisible into three categories, depending on a duty's nature whether it mainly involves bodily acts or financial expenditure.

1. The purely bodily ‘ibadat are those which, like fasting (sawm) and prayer (salat), do not involve any financial aspect. According to the four Sunni schools, such duties cannot in any circumstance be delegated to a proxy (na'ib), either on behalf of a living or a dead person. But according to the Imamiyyah school, taking a na'ib is permissible on behalf of a dead person, though not for a living person, to perform sawm and salat for him, and under all circumstances.

2. The purely financial ‘ibadat are those which do not involve bodily acts, such as khums and zakat. In such ‘ibadat, all legal schools agree, it is permissible to take a na'ib. It is permissible for one to depute another to take out zakat and pay other kind of alms (sadaqat) from his assets.

3. The duties which involve both bodily and financial aspects, such as the Hajj, which requires such bodily acts as tawaf (circumambulation of the Ka'bah), say’ (to and fro movement between Marwah and Safa), ramy (the symbolic throwing of stones), and financial expenditures such as for the journey and its accompanying requirements.

All the five legal schools agree that one who is capable of undertaking the Hajj in person and fulfils all the conditions thereof, should do so himself in person. It is not permissible for him to depute another to undertake it, and if he does so it would not relieve him of his obligation to perform it himself. If he does not do it in his life, according to the Shafi'i, Hanbali and Imamiyyah schools, he is not relieved of the duty because of the preponderance of the financial aspect, and it is obligatory to hire someone to perform the Hajj with a similar expenditure. In case he does not make a will for the Hajj, the amount should be taken out from his undivided heritage.13

According to the Hanafi and Maliki schools, he is relieved of the obligation due to the bodily aspect; but if he mentions it in his will, the expense is taken out from the one third of his inheritance‑‑like all other bequests‑‑and if he doesn't, istinabah is not obligatory.

The Physically Incapable (al-Qadir al-’Ajiz)

One who meets all the financial conditions for the Hajj pilgrimage but is incapable of undertaking it personally due to old age or some incurable disease, all the legal schools agree, is relieved of the obligation of performing the Hajj in person, for God says:

وَمَا جَعَلَ عَلَيْكُمْ فِي الدِّينِ مِنْ حَرَجٍ

(... and He has laid no impediment in your religion ....). 14

However, it is obligatory upon him to hire someone to perform the Hajj for him. But if he doesn't, is it a negligence of a duty whose fulfilment continues to remain upon him? All the legal schools, with the exception of the Maliki, agree that it is obligatory upon him to hire someone to perform the Hajj for him. The Maliki says that the Hajj is not obligatory upon one who is incapable of undertaking it in person. (al‑Mughni, al‑Tadhkirah)

Furthermore, if a sick person recovers after deputing someone to perform his Hajj, is it obligatory upon him on recovery to perform the Hajj in person? According to the Hanbali school, another Hajj is not obligatory. But according to the Imamiyyah, Shafi'i and Hanafi schools it is obligatory, because what was fulfilled was the financial obligation, and the bodily obligation has remained unfulfilled.

Istinabah in al-Hajj al-Mustahabb

According to the Imamiyyah and Hanafi legal schools; one who has performed the Hijjat al‑'Islam, if he wants to depute another for a voluntary, mustahabb Hajj, may do so, even if he is capable of undertaking it in person. But according to the Shafi’i school, it is not permissible. There are two narrations from Ahmad ibn Hanbal, one indicating prohibition and the other permission.

According to the Maliki school, it is permissible for an incurable sick person and for one who has performed the obligatory Hajj to hire another for the Hajj. The Hajj so performed is valid, though makruh (reprehensible). It is not considered as the Hajj of the hirer (mustajir) and is counted as the mustahabb Hajj of the hired (ajir).

The hirer gets the reward for providing assistance in the performance of the Hajj and shares the blessings of the prayers offered. When the Hajj is performed for the benefit of a dead person, irrespective of whether he has asked for it in his will or not, it is counted neither as fulfilment of the duty (fard) nor as a supererogatory (nafl) act, nor does it relieve him of the duty of the obligatory Hajj. (al‑Fiqh ‘ala al‑madhahib al‑'arba’ah).

The Conditions for the Na'ib

The na'ib should fulfil the conditions of: bulugh (adulthood), ‘aql (sanity), belief in Islam, exemption from the duty of obligatory Hajj, and ability to perform the Hajj properly. A man may represent a woman and a‑woman may represent a man, even if both the na'ib and the one whom he represents have not performed the Hajj before.15

Should the na'ib commence the journey from his own place or that of the deceased whom he represents, or from one of the mawaqit? According to the Hanafi and Maliki schools, the na'ib should commence the pilgrimage journey from the place of the deceased, if he has not specified the starting point; otherwise according to his wish.

According to the Shafi’i school, the pilgrimage commences from one of the mawaqit; if the deceased person has specified one, then the na'ib must act accordingly, otherwise he is free to choose one of the mawaqit.

According to the Hanbali school, the na'ib must start from the place that the deceased was obliged to begin from if he had performed the Hajj himself, and not from the place of his death. If the deceased person had attained istita'ah at a place to which he had migrated, later returning to his own place, the na'ib should start from the place of migration, not from the deceased person's home, except when the distance (between his home‑town and the place of migration) is less than what is required for qasr in prayers performed by a traveller. 16

According to the Imamiyyah school, the Hajj is classified into miqati (i.e. one which starts from one of the mawaqit) and baladi (i.e. one which starts from the town of the deceased). If the deceased has specified one of these two kinds, then the one specified.

If he has not specified, any one of the two may be performed. Otherwise the Hajj is miqati and, if possible, starts from the miqat nearest to Mecca, or else the miqat nearest to the town of the deceased. The cost of al‑Hijjat al‑miqatiyyah is taken out from the undivided legacy in the case of obligatory Hajj, and the expense exceeding the cost of al‑Hijjat al‑miqatiyyah is taken from the one third. (al‑Jawahir)

Delay by the Na'ib

Once the na'ib is hired, it is obligatory for him to act with immediacy. He may not postpone the Hajj beyond the first year. Also, it is not permissible for him to depute another, since the duty is his own. If we do not know that he actually went on the pilgrimage and performed all its essential acts, or if we doubt whether he performed them correctly and properly or not, or whether he failed to fulfil any of its obligatory essentials, then we assume that he acted correctly and properly, unless there is proof to the contrary.

Change of Purpose by the Na'ib (al‑‘Udal)

According to the Hanafi and Imamiyyah schools, if one specifies to the na'ib a particular kind of Hajj; such as Jajj al‑'ifrad, or Hajj al-qiran; then it is not permissible for him to make any change. However, if a particular town was specified as the starting point and the na'ib starts from another town, the purpose of the one who hires him is considered as fulfilled if the said specification was not really intended by the hirer; i.e. if by mentioning the route he meant the Hajj itself, and not the route specifically. (al‑Tadhkirah, al‑Fiqh ‘ala al‑madhahib al‑'arba’ah).

- 1. `Ihram' is the state of pilgrim sanctity, which a pilgrim of Hajj or `Umrah assumes on reaching miqat (see note No. 2). A pilgrim in the state of ihram is called muhrim. (Tr.)

- 2. Miqat (pl. mawaqit) refers to a number of stations outside Mecca from where the pilgrims intending Hajj or `Umrah assume ihram. They are: (1) Dhu al‑Hulayfah (specifically, Masjid al‑Shajarah); (2) Yalamlam; (3) Qarn al‑Manazil; (4) al‑Juhfah; (5) three points situated in the valley of al‑`Aqiq: al‑Maslakh, al‑Ghamrah, and Dhat al‑`Irq. Those pilgrims whose houses are nearer to Mecca than to any of the above mawaqit, assume ihram from their houses. (Tr.)

- 3. The talbiyah is wajib according to the Imamiyyah, Hanafi, and Maliki schools, and mustahabb according to the Hanbalis. Its time is the moment of beginning of ihram.

- 4. The area roughly within a radius of six miles, with the Holy Ka'bah at the centre, is called ‘haram’, the sacred and inviolable territory of the sanctuary of the Holy Ka'bah. See the brief discussion under the subheading; "The Limits of the Harams of Mecca and al‑Madinah" in the present article. (Tr.)

- 5. According to the Imamiyyah school, Hajj al-tamattu` is obligatory for non‑Meccans, and Meccans may choose between Hajj al-qiran and Hajj al‑'ifrad. According to the four Sunni schools, there is no difference between a Meccan and a non‑Meccan with regard to choice of any particular kind of Hajj, except that according to the Hanafi school Hajj al-tamattu` and Hajj al-qiran are makruh for the Meccan.

- 6. The tawaf of the first entry or the arrival (called tawaf al‑qudum) is mustahabb from the viewpoint of all except the Maliki school, which regards it as obligatory.

- 7. According to the Imamiyyah school, one is free to choose between halq and taqsir if on `Umrah mufradah'. But a pilgrim on Hajj al-tamattu` is required to perform taqsir. Also according to the Imamiyyah, it is obligatory for one on `Umrah mufradah to perform, after the halq or taqsir, a second tawaf, the tawaf al-nisa', before which sexual intimacy is not permissible to the pilgrim. According to the four Sunni schools, one is free to choose between halq and taqsir in both. They do not require the pilgrim of Hajj or ‘Umrah to perform tawaf al-nisa; and according to the Maliki school halq or taqsir is not obligatory on one performing `Umrah mufradah.

- 8. According to the Imamiyyah school, the mutamatti` (pilgrim on Hajj al-tamattu' and its conjugate `Umrah) acquires tahlil (i.e. relief from ihram) after taqsir, even when he brings along with him the sacrificial animal (hady). But according to the other schools, the mutamatti` who assumes ihram for `Umrah from the miqat obtains tahlil on halq or taqsir when not accompanied by hady, but if he has brought along with him the hady, he remains in the state of ihram. However, according to them, the pilgrim of `Umrah mufradah obtains tahlil regardless of whether the hady accompanies him or not. The author of al‑Mughni, after making the above statement, says, "I have not come across a contrary opinion on this matter."

- 9. According to the Imamiyyah school, the halt in Arafat is obligatory for the entire period of time. But according to the other schools, a moment of halt is sufficient. All the legal schools are in agreement that offering the zuhr (noon) and `asr (afternoon) prayers immediately after one another is mustahabb, because the Prophet (S) had done so.

- 10. The Qur'an, 3:97

- 11. Although the times have tended to support this opinion, and even though the traditions in favour of immediacy (al‑fawr) of the duty of Hajj are open to criticism and controversy, but it leads towards negligence, and gradually towards abandonment of this sacred rite. Accordingly, the stress on immediacy is preferable, being more conducive from the viewpoint of the necessity to preserve the vitality of the Islamic faith.

- 12. Mahram is a male relation with whom marriage is not permissible; viz; father, grandfathers, sons, grandsons, brothers, sons and grandsons of one's sister or brother, etc.

- 13. The Imamiyyah, Shafi'i, and Maliki schools permit hiring another person to perform the Hajj for a fee. The Hanafi and Hanbali schools do not consider it permissible. Nothing more than the expenses of journey, food and lodging may be given to the hired, they say.

- 14. The Qur'an, 22:78.

- 15. One who has not performed the Hajj before is called sarurah. According to the Shafi'i and Hanbali schools, if one who has not performed the Hajj before, undertakes it on behalf of another, the Hajj performed is considered his own. But according to the Maliki, Hanafi, and Imamiyyah schools, the Hajj performed depends on his intention (niyyah).

- 16. The minimum distance required for qasr in zuhr, 'asr and 'isha' prayers is 8 parasangs (approximately 44 km or 27.5 miles). (Tr.)

Al‑‘Umrah

The Meaning of ‘Umrah

The word ‘umrah in common speech "visit", but in the Shari’ah it means paying a visit to the Bayt Allah al‑Haram (the Sacred House of God, i.e. the Holy Ka'bah) in a specific form.

The Kinds of ‘Umrah

The ‘Umrah is of two kinds: the first which is performed independently of the Hajj (called al‑‘Umrat al‑mufradah al‑mustaqillah ‘an al‑Hajj), and the second kind which is performed in conjunction with the Hajj (al‑‘Umrat al‑mundammah ila al‑Hajj). The al‑‘Umrat al‑mufradah, the independent ‘Umrah, all the five legal schools agree, can be performed at all times of the year, though it is meritorious to perform it during the month of Rajab according to the Imamiyyah, and in Ramadan according to the four Sunni schools.

The time of the conjugate ‘Umrah, which is performed before the Hajj and in the course of the same journey by the Hujjaj coming to the Holy Makkah from distant countries, by consensus of all five schools, extends from Shawwal to Dhul Hijjah. However, there is disagreement among legists about the month of Dhul Hijjah, whether the entire month or only the first ten days belong to the Hajj season. Anyone who performs the conjugate ‘Umrah is considered relieved of the obligation to perform the al‑‘Umrat al‑mufradah by those who believe in its being obligatory.

Difference Between the Two Kinds of ‘Umrah

The Imamiyyah scholars make a distinction between al‑‘Umrat al‑mufradah and ‘Umrat al‑tamattu’, citing the following reasons:

1. The Tawaf al-nisa' (to be explained later) is obligatory in al‑‘Umrat al‑mufradah, not in the ‘Umrat al‑tamattu; and according to some jurists is forbidden.

2. The time of ‘Umrat al‑tamattu’ extends from the first of the month of Shawwal to the ninth of Dhu al‑Hijjah, whereas al‑‘Umrat al‑mufradah can be performed at all times of the year.

3. The pilgrim (mu'tamir) performing the ‘Umrat al‑tamattu’ is required to shorten his hair (al‑taqsir), whereas the mu’tamir of al‑‘Umrat al‑mufradah can choose between shortening his hair or completely shaving his head (al‑halq), as shall be explained later.

4. The ‘Umrat al‑tamattu’ and the Hajj occur in the same year, which is not the case with al‑‘Umrat al‑mufradah.

Karrarah, in his book al‑Din wa al‑Hajj ‘ala al‑madhahib al‑'arba'ah, says that, according to the Maliki and Shafi’i schools, for the mu'tamir of al‑‘Umrat al‑mufradah all things are permissible, even sexual intercourse, after the shortening of hair (al‑taqsir) or the head shave (al‑halq), irrespective of whether he brings along with him the sacrificial offering (al‑hady) or not. But according to the Hanbali and Hanafi schools, the mu'tamir gets away with al‑taqsir or al‑halq, if he does not bring the sacrificial offering; otherwise he remains in the state of ihram until he gets through the Hajj and the ‘Umrah on the day of sacrifice (yawm al‑nahr).

The Conditions of the ‘Umrah

The conditions for the ‘Umrah are essentially the same as mentioned in the case of the Hajj.

The Status of ‘Umrah

According to the Hanafi and Maliki schools, the ‘Umrah is not obligatory but a highly recommended sunnah (sunnah mu'akkadah). But according to the Shafi’i and Hanbali schools and the majority of Imamiyyah legists, it is obligatory (wajib) for one who is mustati’, and desirable (mustahabb) for one who is not mustati: In support, they cite the Qur'anic verse:

وَأَتِمُّوا الْحَجَّ وَالْعُمْرَةَ لِلَّهِ

(Perform the Hajj and the ‘Umrah for Allah.)1

(Fiqh al‑Sunnah, vol. V; al‑Fiqh ‘ala al‑madhahib al‑'arba’ah; al‑Jawahir; al‑Mughni)2

The Acts of the ‘Umrah

According to al‑Fiqh ‘ala al‑madhahib al‑'arba’ah, whatever is wajib or sunnah for the Hajj is also wajib and sunnah for the ‘Umrah. But the ‘Umrah does differ from the Hajj in certain respects: there is no specific time for performing the ‘Umrah; it does not involve the halt (wuquf) in the plain of ‘Arafat; neither the departure thenceforth to al‑Muzdalifah; nor the ramy al‑jamarat.3

The Imamiyyah book al‑Jawahir mentions that: "The obligatory acts (af'al or a'mal) of the Hajj are twelve: ihram; the wuquf at ‘Arafat; the wuquf at al‑Mash'ar al‑Haram; the entry into Mina; the ramy; the dhibh (sacrifice); its related taqsir or halq; the tawaf (the sevenfold circumambulation of the Ka'bah), and its related raka'at (units of the length of prayers); the sa’y; the tawaf al-nisa', and its related raka'at. The obligatory acts of al‑‘Umrat al‑mufradah are eight: niyyah (intention); ihram4 ; tawaf and its related raka'at; the sa’y; the taqsi; the tawaf al-nisa'; and its related raka'at."

This indicates that all the legal schools agree that the acts of the Hajj exceed those of the ‘Umrah by the acts associated with the wuquf. Moreover, the Imamiyyah school considers it obligatory for the performer of the al‑‘Umrat al‑mufradah to perform a second tawaf, the tawaf al-nisa'. Similarly the Maliki school differs from others in considering halq or taqsir as non‑obligatory for al‑‘Umrat al‑mufradah.

Two Subsidiary Issues

1. The obligation (wujub) of al‑‘Umrat al‑mufradah is not connected with the istita’ah for the Hajj. If, supposedly, it is possible for a person to go to Mecca at a time other than that of the Hajj and not possible at the time of the Hajj, then the ‘Umrah instead of the Hajj becomes obligatory for him. If he dies without performing it, its expense is taken out from his heritage."5

Similarly, if one has istita'ah for Hajj al‑'ifrad instead of the ‘Umrah, it becomes obligatory upon him; because each of them is independent of the other. This applies to al‑‘Umrat al‑mufradah. As to ‘Umrat al‑tamattu’, which shall be explained later, its wujub depends upon that of the Hajj, since it is a part of it.

2. According to the Imamiyyah, it is not permissible for one intending to enter the Holy Mecca to cross the miqat or enter its haram (sacred precincts) without getting into the state of ihram, even if he has performed the Hajj and the ‘Umrah many times before. Only when the exit and entry recur several times during month, or when after entering the city as a muhrim he goes out and re‑enters for a second time in less than thirty days, it is not obligatory. Therefore, ihram with respect to entry into Mecca is comparable to the wudu' before touching the Holy Qur'an. This clearly demonstrates the baselessness of the lie that the Shi’ah do not consider al‑Bayt al‑Haram as sacred, and that they pretend to perform the Hajj for the sake of polluting the holy sanctuaries. (!)

According to Abu Hanifah, it is not permissible to go beyond the miqat and enter the haram without ihram, but entry into the remaining area is permissible without ihram. Malik does not agree with this, and two opinions are ascribed to al‑Shafi'i on the matter.

This much of discussion about the ‘Umrah is sufficient for throwing light upon it, so that the reader may grasp its difference with the Hajj, though only in some aspects. What we shall say later will offer further clarification.

- 1. The Qur'an, 2:196.

- 2. According to al‑Mughni, Ahmad ibn Hanbal did not consider the ‘Umrah as being obligatory for Meccans, for the reason that the most important act of the ‘Umrah is tawaf (circumambulation of the Ka'bah) which they do and it suffices them.

- 3. In the book al‑Fiqh 'ala al‑madhahib al‑'arba’ah, it is the author's want to give the text followed by a commentary and notes. In the text, he states the points of consensus of all the four Sunni schools, the different position of each is given in the commentary. What we have quoted here is taken from the text, not from the commentary.

- 4. According to al‑Din wa al‑Hajj 'ala al‑madhahib al‑'arba'ah, by Karrarah, one of the things which distinguishes the ‘Umrah from the Hajj is that its ihram is not assumed from any of the mawaqit specified for the Hajj. From the Imamiyyah viewpoint, there is no difference between the miqat for one performing ‘Umrah and the miqat for one on Hajj with regard to ihram.

- 5. The Imamiyyah author of al‑Madarik says: "The better known and sounder of opinions is that the obligation of ‘Umrah is independent of the obligation of Hajj." The author of al‑Jawahir states, "The statements of fuqaha' are not free of confusion... the one which appears sounder is that those who live far away from Mecca are relieved of the obligation of ‘Umrah mufradah, and that which is obligatory upon them is 'Umrat al‑tamattu; whose wujub is related to that of Hajj.

The Forms of Hajj

All the five legal schools agree that there are three kinds of Hajj: tamattu’, qiran, and ifrad. They also agree that by Hajj al-tamattu’ is meant performance of the acts of the ‘Umrah during the months of the Hajj. The acts of the Hajj itself are performed after getting through the ‘Umrah. They also agree that by Hajj al‑'ifrad is meant performing the Hajj first and then, after getting through the acts of the Hajj, getting into the state of ihram for performing the ‘Umrah and its related acts. The four Sunni legal schools agree that the meaning of the Hajj al-qiran is to get into ihram for the Hajj and the ‘Umrah together. Then the talbiyyah uttered by the pilgrim is لبيك اللهم بحج وعمرة .

According to the Imamiyyah school, the Hajj al-qiran and Hajj al‑‘ifrad are one and the same. There is no difference between them except when the pilgrim performing the Hajj al-qiran brings the hady at the time of assuming the ihram. Then it is obligatory upon him to offer what he has brought. But one who performs the Hajj al‑‘ifrad has essentially no obligation to offer the hady.

In brief, the Imamiyyah do not consider it permissible to interchange two different ihram's,1 or to perform the Hajj and the ‘Umrah with a single niyyah (intention) under any condition; but the other legal schools permit it in Hajj al-qiran. They say that it has been named ‘al‑qiran' because it involves union between the Hajj and the ‘Umrah. But the Imamiyyah say that it is because of the additional feature of the hady accompanying the pilgrim at the time of ihram.2

According to the four Sunni legal schools, it is permissible for the pilgrim, Meccan or non‑Meccan, to choose from any of the three forms of the Hajj: al‑tamattu; al‑qiran, or al‑'ifrad, without involving any karahah (reprehensibility). Only Abu Hanifah considers Hajj al-tamattu’ and Hajj al-qiran as makruh for the Meccan.

The four Sunni legal schools also differ as to which of the three kinds of Hajj is superior to the others. The best according to the Shafi’i school is al‑‘ifrad, and al‑tamattu’ is superior to al‑qiran. According to the Hanafi school, al‑qiran has greater merit than the other two. The best according to the Maliki school is al‑‘ifrad, and according to the Hanbali and Imamiyyah schools is al‑tamattu’.

According to the Imamiyyah school, Hajj al-tamattu’ is obligatory upon one living at a distance of over forty‑eight miles from Mecca, and he may not choose any other kind except in emergency. The Hajj al-qiran and Hajj al‑‘ifrad are performable by the people of Mecca and those living around it within a distance of forty‑eight miles, and it is not permissible for them to perform except one of these two kinds. The Imamiyyah base their argument on this verse of the Qur'an:

فَمَنْ تَمَتَّعَ بِالْعُمْرَةِ إِلَى الْحَجِّ فَمَا اسْتَيْسَرَ مِنَ الْهَدْيِ فَمَنْ لَمْ يَجِدْ فَصِيَامُ ثَلَاثَةِ أَيَّامٍ فِي الْحَجِّ وَسَبْعَةٍ إِذَا رَجَعْتُمْ تِلْكَ عَشَرَةٌ كَامِلَةٌ ذَٰلِكَ لِمَنْ لَمْ يَكُنْ أَهْلُهُ حَاضِرِي الْمَسْجِدِ الْحَرَامِ

…if any one wishes to continue the 'umra on to the hajj, He must make an offering, such as he can afford, but if he cannot afford it, He should fast three days during the hajj and seven days on his return, Making ten days in all. This is for those whose household is not in (the precincts of) the Sacred Mosque…..(2:196)

Moreover, according to the Imamiyyah school, it is not permissible for one obliged to perform the Hajj al-tamattu’ to change over to something else, except for the problem of shortage of time available, or, in the case of women, due to impending menses. In those cases it is permissible to change either to al‑qiran or al‑‘ifrad on condition that the ‘Umrah is performed after the Hajj. The limit of the shortage of time is failure to be present at the wuquf in ‘Arafat until noon.

For one whose duty is al‑qiran or al‑‘ifrad, such as the natives of Mecca or those from its surrounding region, it is not permissible to change to al‑tamattu’, except in exigency (such as the fear of impending menses). After explaining this position of the Imamiyyah school, the author of al‑Jawahir says, "I have not come across any different opinion on this matter."

And all the five legal schools agree that the hady is not compulsory for one performing Hajj al‑'ifrad, though better if performed voluntarily.

- 1. According to al‑Jawahir, al‑Madarik, al‑Hada'iq and other Imamiyyah works on fiqh, it is not permissible for one already in the state of ihram to assume ihram for another purpose, until he completes all the acts of the rite (Hajj or ‘Umrah) for which he had assumed ihram.

- 2. Ibn 'Aqil is alone among Imamiyyah legists in agreeing with the Sunni legists in that the acts of both the Hajj and the ‘Umrah may be performed with a single ihram in Hajj al-qiran.

The ‘Ihram

Mawaqit al-'Ihram

The ihram is compulsory for all the various kinds of Hajj as well as' ‘Umrah, and is regarded as their basic element (rukn) by the Imamiyyah, and as obligatory by other schools. All the five schools agree that the miqat of the people of al‑Madinah from where they assume ihram is Masjid al-Shajarah, also known as Dhu al-Hulayfah;1 for the pilgrims of al‑Sham (which includes the Syrians, the Lebanese, the Palestinians and the Jordanians, noting further that the routes have changed from what they used to be in the past), Morocco and Egypt the miqat is al‑Juhfah;2 for the pilgrims of Iraq, it is al-’Aqiq;3 for those from Yemen and others who take the same route, it is Yalamlam. 4

According to the Imamiyyah, Qarn al-Manazil5 is the miqat for the people of al‑Ta'if and those who take their route towards Makkah. But according to the four Sunni schools, it is the miqat of the people of Najd. The miqat for those from Najd and Iraq according to the Imamiyyah is al‑‘Aqiq. All the legal schools agree that these mawaqit also apply to those who in their journey take similar routes, even though they may not be natives of those regions.

For instance, if a Syrian starts on Hajj from al‑Madinah, it is permissible for him to assume ihram from Dhu al‑Hulayfah; if he starts on Hajj from Yemen, his miqat is Yalamlam; if from Iraq, then al‑‘Aqiq, and so on. If one does not pass the mentioned mawaqit on his route, the miqat for him is the place parallel to any one of them.

If someone lives at a place nearer to Makkah than any of the prescribed mawaqit, then he assumes ihram from the place of his residence. For, someone who resides in Makkah itself, his miqat is Makkah. For one performing the al‑‘Umrat al‑mufradah, the mawaqit, according to the Imamiyyah, are the same as for the Hajj.

Ihram Before Miqat

The four Sunni legal schools agree on the permissibility of assuming ihram before the point of miqat, but disagree as to which has greater merit. According to Malik and Ibn Hanbal, ihram before miqat is more meritorious (afdal). According to Abu Hanifah, the merit lies in assuming ihram while starting the Hajj journey from one's town: Two opinions are ascribed to al‑Shafi'i in this regard.

However, according to the Imamiyyah school, ihram before miqat is not permissible except for one who intends to perform the ‘Umrah in the month of Rajab and is afraid of missing it if ihram is delayed until miqat is reached, and for one who makes a vow (nadhr) to assume ihram before the miqat. (al‑Tadhkirah, Fiqh al‑Sunnah)

Ihram after Miqat

There is consensus among all the legal schools that it is not permissible to cross the miqat without ihram, and one who does so must return to the miqat for assuming ihram. If he does not return, according to the four Sunni schools, his Hajj is correct though he should offer a hady in atonement. But if there be any impediment, such as fear of insecurity on the way or shortage of time, there is no sin. This, regardless of whether there are other mawaqit before him on his path or not.

According to the Imamiyyah, if he has deliberately neglected to assume ihram at the miqat while intending to perform the Hajj or the ‘Umrah, if he does not turn back to the miqat, there being no other miqat before him from which he can assume ihram, his ihram and Hajj are invalid, whether he had a valid pretext for not returning or not.

But if his failure to assume ihram at miqat was on account of forgetfulness or ignorance, if it is possible to return, he must do so; but if it is not possible, then from the next miqat before him. Otherwise he ought to assume ihram as far as possible outside the haram of Makkah, or within it; though the former is preferable. (al‑Tadhkirah, al‑Fiqh ‘ala al‑madhahib al‑'arba’ah)

Ihram before the Hajj Months

According to the Imamiyyah and Shafi'i schools, the ihram before the months of the Hajj is invalid if assumed with the purpose of Hajj, though it is valid when assumed for the purpose of the ‘Umrah. They cite in this regard the Qur'anic verse:

الْحَجُّ أَشْهُرٌ مَعْلُومَاتٌ

The pilgrimage is (performed in) the well-known months… (2:197)

But according to the Hanafi, Maliki and Hanbali schools, it is permissible with karahah. (al‑Tadhkirah, Fiqh al‑Sunnah)

The Mustahabbat of Ihram

There is no disagreement among the legal schools with respect to the ihram being an essential rukn of the ‘Umrah and all the three forms of the Hajj, namely, tamattu; qiran and ifrad. Also, there is no difference of opinion that ihram is the first act of the pilgrim, irrespective of whether his purpose is ‘Umrah mufradah, or any of the three forms of Hajj. There are certain wajibat and mustahabbat related to the ihram.

The legal schools agree that it is mustahabb for anyone intending ihram to cleanse his body, clip his fingernails, shorten his moustaches, and to take a bath (even for women undergoing hayd or nifas, for the aim is cleanliness). It is also mustahabb for one intending Hajj to abstain from cutting the hair of his head from the beginning of the month of Dhu al‑Qi'dah, to remove the hair from his body and armpits, and to enter ihram after the zuhr (noon) or any other obligatory prayers. It is also mustahabb to pray six, four or at least two raka’at. However, freedom from the state of ritual impurity (hadath) is not a condition for the ihram to be valid.

According to the Hanafi and Maliki schools, if water is not available, one is relieved of the duty to take the bath (ghusl), and tayammum as an alternative is not permissible. According to the Hanbali and Shafi'i schools, tayammum substitutes ghusl. The Imamiyyah jurists differ on this matter, some consider it permissible, others not.

According to the Imamiyyah school, it is mustahabb to leave the hair of the head uncut, but according to the Shafi'i, Hanafi and Hanbali schools, it is mustahabb to shave the head. (al‑Fiqh ‘ala al‑madhahib al‑'arba’ah)

According to the Hanafi school, it is sunnah for one who wants to assume ihram to scent his body and clothes with a perfume whose trace does not remain after ihram except the smell. According to the Shafi'i school, it is sunnah, except when one is fasting, to apply perfume to the body after the bath. Also, perfuming the clothes does not matter. According to the Hanbali school, one may perfume the body; and the clothes with karahah. (al‑Fiqh ‘ala al‑madhahib al‑'arba ‘ah)

According to the Hanafi, Maliki and Shafi'i schools, it is mustahabb for the muhrim to pray two raka'at before assuming ihram after the noon prayer or any other obligatory prayer. If he has no obligatory prayer to make at the time of ihram, he should offer six, or four or at least two raka’at for the ihram. (al‑Jawahir)

Al- 'Ishtirat

Al‑Muhaqqiq al‑Hilli, the Imamiyyah scholar, in his work Tadhkirat al‑fuqaha', says that for one intending ihram it is mustahabb to make a condition with God at the time of assuming ihram, by saying:

اللهم اني أريد ما أمرتني به، فإن منعني مانعٌ عن تمامه وحبسني عنه حابسٌ فاجعلني في حل.

O God, indeed I wish to fulfill Thy command, but if any impediment keeps me from completing it or a barrier obstructs me from it, exonerate me.

Abu Hanifah, al‑Shafi'i, and Ahmad ibn Hanbal also consider it mustahabb. However, this ishtirat does not help in relieving one of the obligations of the Hajj if he were to encounter an impediment which keeps him from getting through it.

The Wajibat of Ihram

The wajibat of ihram, with some difference between the legal schools on some points, are three: niyyah (intention); talbiyah; and putting on of the clothes of ihram.

Al-Niyyah

Obviously niyyah or intention is essential to every voluntary act; for every such act is motivated by conscious intent. Therefore, some scholars have pointed out that had we been assigned a duty to be performed without intention it would have been impossible to be carried out. However, when the question of intention is raised in relation to the pilgrim (of the Hajj or the ‘Umrah), what is meant is whether he becomes muhrim solely on account of the niyyah or if something else is required in addition, acknowledging that ihram is void if assumed frivolously or absent‑mindedly.

According to the Hanafi school, ihram is not considered to commence solely with intention unless it is accompanied by the utterance of the talbiyah (Fath al‑qadir). According to the Shafi'i, Imamiyyah and Hanbali schools, the ihram is assumed merely by niyyah (al‑Jawahir, Fiqh al‑Sunnah). The Imamiyyah add that it is obligatory for the niyyah to coincide with the commencement of ihram, and it is not sufficient for the act of niyyah to occur in the course of assuming ihram.

Also while making the niyyah it is essential to specify the purpose of ihram, whether it is Hajj or ‘Umrah, whether it is Hajj al‑tamattu; Hajj al‑qiran or Hajj al‑'ifrad, whether he is performing the Hajj for himself or as a na'ib of someone else, whether for the obligatory Hajj (Hijjat al‑'Islam) or for something else. If one assumes ihram without specifying these particulars, postponing their determination to future, the ihram is invalid. (al‑‘Urwat al‑wuthqa).

According to the Hanafi text al‑Mughni, “It is mustahabb to specify the purpose of ihram. Malik is of the same opinion. Two opinions are ascribed to al‑Shafi'i. According to one of them, it is adequate if one assumes ihram with a general, non‑specific purpose of pilgrimage... without determining the exact purpose, whether Hajj or ‘Umrah. The ihram thus assumed is valid and makes one a muhrim .... Afterwards, he may select any of the kinds of pilgrimage." All the five schools agree that if one assumes ihram with the intention to follow another person's intention, his ihram is valid if the other person's purpose is specific. (al‑Jawahir; al‑Mughni)

The Talbiyah

That the talbiyah is legitimate in ihram is acknowledged by all the five schools, but they disagree as to its being wajib or mustahabb, and also about its timing. According to the Shafi’i and Hanbali schools, it is sunnah, preferably performed concurrently with ihram. However, if the intention to assume ihram is not accompanied by talbiyah, the ihram is correct.

According to the Imamiyyah, Hanafi6, and Maliki schools, the talbiyah is obligatory, though they differ about its details. According to the Hanafi school, pronouncement of talbiyah or its substitute –such as tasbih, or bringing along of the sacrificial animal (al‑hady)– is a provision for ihram to be valid. According to the Maliki school, the ihram neither becomes invalid if talbiyah is recited after a long gap of time, nor if it is not pronounced altogether. However, one who fails to pronounce it must offer a blood sacrifice.

According to the Imamiyyah, neither the ihram for Hajj al‑tamattu; nor Hajj al‑'ifrad, nor their conjugate ‘umrahs, nor for al‑‘Umrat al‑mufradah, is valid without talbiyah. However, one who intends to perform Hajj al‑qiran may choose between. talbiyah, ish'ar7 or taqlid; ish'ar for this school being exclusively restricted to a camel, though taqlid may apply to a camel or the other forms of hady.

The Formula of Talbiyah

لبيك اللهم لبيك، لا شريك لك لبيك، إن الحمد والنعمة لك والملك لا شريك لك

All the legal schools agree that taharah is not a proviso for pronouncing talbiyah. (al‑Tadhkirah).

As to its occasion, the muhrim starts reciting it from the moment of ihram, being mustahabb for him to continue it—all the five schools agree—until the ramy of Jamarat al‑‘aqabah. To utter it loudly is mustahabb for men (not for women), except in mosques where prayers are offered in congregation, particularly in the Mosque of ‘Arafat. According to the Imamiyyah school, it is mustahabb to discontinue reciting the talbiyah on sighting the houses of Makkah. A woman may recite the talbiyah just aloud enough to be heard by herself or someone near her. It is also mustahabb to proclaim blessings on the Prophet and his Family (S). (al‑Tadhkirah; Fiqh al‑Sunnah).

The Muhrim's Dress

All the five schools agree that it is not permissible for a muhrim man to wear stitched clothing, shirts or trousers, nor may he cover his face. Also, it is not permissible for him to wear shoes (khuffan) except when he cannot find a pair of sandals (na’lan),8 and that after removing the covering on the back of the heels from the base. A woman, however, should cover her head, keep her face exposed, except when she fears that men may ogle at her.

It is not permissible for her to wear gloves, but she may put on silk and wear shoes (khuffan). According to Abu Hanifah, it is permissible for a woman to wear gloves. (al‑Tadhkirah; Ibn Rushd's al‑Bidayah wa al‑nihayah).

The book al‑Fiqh ‘ala al‑madhahib al‑'arba’ah, under the heading ‘That which is required of one intending ihram before he starts to assume it', states, "According to the Hanafi school, among other things he wears izar (loin‑cloth) and rida' (cloak). The izar covers the lower part of the body from the navel to the knees. The rida' covers the back, the chest and the shoulders, and its wearing is mustahabb.

According to the Maliki school, it is mustahabb to wear izar, rida and na’lan; but there is no restriction on wearing something else that is not stitched and does not encircle any of the parts of the body.

According to the Hanbali school, it is sunnah to put on a new, white and clean rida' and izar together with a pair of na’lan before assuming ihram. According to the Shafi’i school, the rida' and izar should be white, new or washed ones.

According to the Imamiyyah school, the rida' and the izar are obligatory, preferably (istihbaban) of white cotton. The muhrim may put on more than these two pieces of clothing on condition that they are not stitched. Also it is permissible to change the clothes in which one commenced ihram, though it is better to perform the tawaf in the same rida' and izar as worn at the beginning.

All the requirements of the dress for salat apply to the dress of ihram, such as taharah, its being non‑silken for men, not made of the skin of an animal eating whose flesh is not permissible. According to some Imamiyyah legists, clothing made of skin is not permissible (in salat and ihram).

In any case, the disagreement between the legal schools about the muhrim's dress is very limited. This is well indicated by the fact that whatever is regarded as permissible by the Imamiyyah is also considered permissible by the remaining schools.

Restrictions of Ihram

There are certain restrictions for the muhrim, most of which are discussed below.

Marriage

According to the Imamiyyah, Shafi'i, Maliki and Hanbali schools, it is not permissible for the muhrim to contract marriage for himself or on behalf of another. Also he may not act as another's agent for concluding a marriage contract, and if he does, the contract is invalid.

Furthermore, according to the Imamiyyah school, he may not act as a witness to such a contract.

According to Abu Hanifah, marriage contract is permissible and the contract concluded is valid.

According to the Hanafi, Maliki, Shafi’i and Imamiyyah schools, it is permissible for the muhrim to revoke divorce of his former wife during the period of her ‘iddah. According to the Hanbali school, it is not permissible. From the viewpoint of the Imamiyyah, if one enters a marriage contract with the knowledge of its prohibition, the woman becomes haram for him for life merely by the act of concluding the contract, even if the marriage is not consummated. But if done in ignorance of the interdiction, she is not prohibited to him, even if consummation has been affected. (al‑Jawahir Fiqh al‑Sunnah; al‑Fiqh ‘ala al‑madhahib al‑'arba’ah).

Intercourse

All the five legal schools agree that it is not permissible for the muhrim to have sexual intercourse with his wife, or to derive any kind of sexual pleasure from her. If he performs intercourse before tahlil9 (i.e. relief from the state of ihram) his Hajj becomes void, although he must perform all its acts to the conclusion. Thereafter, he must repeat the Hajj the next year, performing it ‘separately' from his spouse.10 The seclusion is obligatory according to the Imamiyyah, Maliki and Hanbali schools, and voluntary from the viewpoint of the Shafi'i and Hanafi schools. (al‑Hada'iq; Fiqh al‑Sunnah).

Moreover, according to the Imamiyyah, Shafi'i, and Maliki schools, besides the fact that his Hajj becomes invalid, he must sacrifice a camel in atonement, and according to the Hanafi school, a sheep.

All the five legal schools agree that if he commits intercourse after the first tahlil (i.e. after the halq or taqsir in Mina, after which everything except intercourse—and also perfume according to the Imamiyyah school—become permissible for the pilgrim), his Hajj is not void, nor is he called upon to repeat it. Nevertheless, he must offer a camel, according to the Imamiyyah and Hanafi schools and according to one of the two opinions ascribed to al‑Shafi'i. But according to the Maliki school, he is obliged to offer a sheep only. (al‑Hada'iq; Fiqh al‑Sunnah).

If the wife yields willingly to intercourse, her Hajj is also void, and she must sacrifice a camel in expiation and repeat the Hajj the year after. But if she was forced, then nothing is required of her, but the husband is obliged to offer two camels: one on his own behalf, and the second on hers. If the wife was not in the state of ihram, but the husband was, nothing is required of her, nor is she obliged to offer anything in atonement, nor is anything required of the husband on her account. (al‑Tadhkirah).

If the husband kisses his wife, his Hajj is not void if it does not result in ejaculation. On this all schools are in agreement. But according to the four Sunni schools, he is obliged to make a sacrificial offering in atonement even if it be a sheep. The Imamiyyah author of al‑Tadhkirah says, the sacrifice of a camel is obligatory only if the kiss is taken with sexual desire, otherwise he should sacrifice only a sheep. If he ejaculates, the Hajj is void according to the Maliki school, but remains valid according to the other schools, although he should make an offering in atonement, which is a camel according to the Hanbali school and a group of Imamiyyah legists, and a sheep according to the Shafi'i' and Hanafi schools. (al‑Hada'iq; al‑Mughni).

Use of Perfume

All the legal schools agree that the muhrim, man or woman, may not make use of any perfume, either for smelling, or for applying on himself, or for scenting edibles. Indeed it is not permissible to wash the dead body of a muhrim, or to perform hunut upon it by applying camphor or any other kind of perfumery. If the muhrim uses perfume forgetfully or on account of ignorance, he needs not make any offering in atonement according to the Imamiyyah and Shafi'i schools. But according to the Hanafi and Maliki schools, he must make a sacrificial offering (fidyah). In this relation two different opinions are ascribed to Ahmad ibn Hanbal.

However, when one is forced to use perfume on account of disease, it is permissible and no fidyah is required. According to the Imamiyyah school, if one uses perfume intentionally, he must offer a sheep, irrespective of the use, whether applied to the body or eaten. However, there is nothing wrong in the Khaluq of Ka'bah even if it contains saffron, and the same applies to fruits and aromatic plants. (al‑Jawahir).

Use of Kohl

Al‑Tadhkirah states: "There is consensus among the Imamiyyah legists on the point that darkening the eyelids with kohl or applying a kohl containing perfume is not permissible for the muhrim, man or woman. Apart from that (i.e. ihram) it is permissible." According to the author of al‑Mughni, "Kohl containing antimony is makruh, and does not require any fidyah. I haven't come across any different opinion on this topic. However, there is no karahah in use of kohl without antimony, as long as it does not contain any perfume."

Shortening of Nails and Hair; Cutting of Trees

All the five legal schools agree about impermissibility of shortening the nails and shaving or shortening of the hair of the head or the body in the state of ihram, fidyah being required of the offender.11 As to cutting of trees and plants within the haram, all the legal schools agree that it is impermissible to cut or uproot anything grown naturally without human mediation.

Al‑Shafi'i' states that there is no difference between the two with regard to the prohibition, and fidyah is required for both: cutting of a big tree requires fidyah of a cow, and of other plants of a sheep. According to Malik, cutting of a tree is a sin, though nothing is required of the offender, regardless of whether it has grown with or without human mediation.

According to the Imamiyyah, Hanafi, and Hanbali schools, cutting of something planted by human hands is permissible and does not require a fidyah; but anything grown by nature requires fidyah, which is a cow according to the Imamiyyah for cutting a big tree and a sheep for cutting smaller plants. According to the Hanafi school, the owner of the tree is entitled to a payment equivalent to the cost of the hady. (Fiqh al‑Sunnah, al‑Lum’ah)

All the five schools agree that there is no restriction for cutting a dry tree or for pulling out withered grass.

Looking into a Mirror

It is not permissible for a muhrim to look into a mirror, and all the five schools agree that there is no fidyah for doing so. However, there is no restriction on looking into water.

Use of Henna

According to the Hanafi school, it is permissible for the muhrim, man or woman, to dye with henna any part of his body, except the head. According to the Shafi’i school, it is permissible, with the exception of hands and feet. According to the Hanafi school, dyeing is not permissible for the muhrim, man or woman. (Fiqh al‑Sunnah) The predominant view among the Imamiyyah legists is that dyeing is makruh not haram. (al‑Lum’ah)

Use of Shade; Covering the Head

All the five schools agree that it is not permissible for the muhrim man to cover his head voluntarily. According to the Maliki and Imamiyyah schools, it is not permissible for him to immerse himself under water until the head is completely submerged, although it is permissible for him, all the five schools except the Shafi'i agree, to wash his head or pour water over it. The Malikis say that with the exception of the hands it is not permissible to remove dirt by washing. If he covers the head forgetfully, nothing is required of him according to the Imamiyyah and Shafi'i schools, but a fidyah is required according to the Hanafi school.

All the schools, with the exception of the Shafi'i, agree that it is impermissible for the muhrim to shade himself while moving. Neither it is permissible for him to ride an automobile, an aeroplane or the like, which are covered by a roof. But it is permissible while walking to pass under a shadow.12

Stitched Clothing and Ring

All the five schools agree that it is forbidden for the muhrim man to wear stitched clothes and clothes which encircle body members, e.g. turban, hat and the like. These are permissible for women, with the exception of gloves and clothes which have come into contact with perfume. According to the Imamiyyah school, if the muhrim wears stitched clothes forgetfully, or in ignorance of the restriction, nothing is required of him. But if one wears them intentionally to protect himself from heat or cold, he should offer a sheep. Also according to them it is not permissible to wear a ring for adornment, but it is permissible for other purposes. Also, it is not permissible for woman to wear jewellery for the sake of adornment.

‘Fusuq' and Jidal'

God, the most Exalted, says in the Quran:

…فَلَا رَفَثَ وَلَا فُسُوقَ وَلَا جِدَالَ فِي الْحَجِّ ۗ…

. ...There should be no obscenity, neither impiety, nor disputing in Hajj ....' (2:197).

In the above verse, the meaning of ‘rafath' is taken to be sexual intercourse, to which reference has been made earlier. ‘Fusuq' is taken to mean lying, cursing, or commission of sins. In any case, all of them are forbidden for the pilgrims of Hajj and the non‑pilgrims as well. The stress here is meant to emphasize abstention from them in the state of ihram. The meaning of jidal' is quarrelling. According to an Imamiyyah tradition from al‑'Imam al‑Sadiq (‘a), he is reported to have said, "It (i.e. jidal' in the above‑mentioned verse) means using such expressions as ‘Yes, by God!' or ‘No, by God!' in conversation. This is the lowest degree of jidal"

According to the Imamiyyah school, if the muhrim tells a lie for once, he must offer a sheep; if twice, a cow; if thrice, a camel. And if he swears once taking a veritable oath, there is nothing upon him; but if he repeats it three times, he is obliged to sacrifice a sheep.

Cupping (Hijamah)

All the five schools agree on permissibility of cupping in case of necessity, and the four Sunni schools permit it even when not necessary as long as it does not require removal of hair. The Imamiyyah legists disagree on this issue; some of them permit it and others not. (al‑Tadhkirah; al‑Fiqh ‘ala al‑madhahib al‑'arba’ah)

Hunting (al-Sayd)

All the five schools are in agreement about the prohibition on hunting of land animals, either through killing or through dhabh, and also on guiding the hunter or pointing out the game to him in the state of ihram. Also prohibited is meddling with their eggs and their young ones. However, hunting of the animals of water is permitted and requires no fidyah. This, in accordance with the Qur'anic verse:

أُحِلَّ لَكُمْ صَيْدُ الْبَحْرِ وَطَعَامُهُ مَتَاعًا لَكُمْ وَلِلسَّيَّارَةِ وَحُرِّمَ عَلَيْكُمْ صَيْدُ الْبَرِّ مَا دُمْتُمْ حُرُمًا وَاتَّقُوا اللَّهَ الَّذِي إِلَيْهِ تُحْشَرُونَ

Permitted to you is the game of the sea and the food of it, as a provision for you and for the journeyers; but forbidden to you is the game of the land, so long as you remain in the state of ihram: and fear God, unto whom you shall be mustered. (5:96)

The prohibition on hunting within the precincts of the haram apply to the muhrim and the non‑muhrim (muhill) equally. However, outside the haram, the prohibition applies only to the muhrim. If the muhrim slaughters a game, it is considered maytah (a dead animal not slaughtered in accordance with ritual requirements), and its flesh is unlawful for all human beings. The five legal schools agree that the muhrim may kill a predatory bird called hada'ah, crows, mice and scorpions. Others include wild dogs and anything harmful.

According to the Imamiyyah and Shafi'i schools, if the game hunted on land resembles some domestic beast in shape and form (like the Oryx, which resembles the cow), he has the choice between:

(1) giving the meat of one of similar beasts of his livestock in charity after slaughtering it;

(2) estimating its price and buying food of the amount to be given in expiation and charity to the needy, distributing it by giving two mudds (the mudd is a dry measure equal to 800 grams) to every individual;

(3) fasting, a day for every two mudds.

The Malikis hold the same viewpoint, except that, they add, the price of the hunted animal itself should be estimated, not that of its domestic equivalent. The Hanafis say that one who hunts in the state of ihram should arrange for the estimated price of the hunted animal, whether there is a domestic animal similar to it or not. When the price has been estimated, he is free to choose between:

(1) purchasing livestock of the money and giving its meat away in charity;

(2) giving it from his own livestock;

(3) purchasing food of the amount to be given away in charity;

(4) fasting, a day for every mudd of food to be given away. (al‑Tadhkirah; Fiqh al‑Sunnah) In this connection all the legal schools base their position on this Qur'anic verse:

يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَقْتُلُوا الصَّيْدَ وَأَنْتُمْ حُرُمٌ وَمَنْ قَتَلَهُ مِنْكُمْ مُتَعَمِّدًا فَجَزَاءٌ مِثْلُ مَا قَتَلَ مِنَ النَّعَمِ يَحْكُمُ بِهِ ذَوَا عَدْلٍ مِنْكُمْ هَدْيًا بَالِغَ الْكَعْبَةِ أَوْ كَفَّارَةٌ طَعَامُ مَسَاكِينَ أَوْ عَدْلُ ذَٰلِكَ صِيَامًا لِيَذُوقَ وَبَالَ أَمْرِهِ عَفَا اللَّهُ عَمَّا سَلَفَ وَمَنْ عَادَ فَيَنْتَقِمُ اللَّهُ مِنْهُ وَاللَّهُ عَزِيزٌ ذُو انْتِقَامٍ

O believers, slay not the game while you are in the state of ihram. Whosoever of you slays it wilfully, there shall be reparation—the like of what he has slain, in livestock, as shall be judged by two men of equity among you, as offering on reaching the Ka’bah; or expiation—food for poor persons or the equivalent of that in fasting, so that he may taste the mischief of his action. God has pardoned what is past; but whoever offends again, God will take vengeance on him; God is All‑mighty, Vengeful. ( 5:95 )

The meaning of the phrase: يَحْكُمُ بِهِ ذَوَا عَدْلٍ in the above verse is that two equitable (‘adil) witnesses should judge whether a certain domestic animal is similar to the hunted wild beast. The meaning of the phrase: هدياً بالغ الكعبة is that he should slaughter the equivalent livestock and give its meat in charity on arrival in Makkah.

According to the Imamiyyah work al‑Shara'i’, "Every muhrim who wears or eats anything forbidden for him should slaughter a sheep, regardless of whether his action was intentional, forgetful, or on account of ignorance."

The Imamiyyah and Shafi'i schools agree that no expiation (kafarah) is required of someone who commits a haram act forgetfully or in ignorance, except in the case of hunting, in which case even killing by mistake requires kaffarah.

The Limits of the Harams of Makkah and of Al‑Madinah

The prohibition of hunting and cutting of trees applies both to the haram of Makkah and that of al‑Madinah. According to Fiqh al‑Sunnah, the limits of the haram of Makkah are indicated by signs in five directions, which are one‑meter‑high stones fixed on both sides of the roads. The limits of the haram of Makkah are as follows: (1) the northern limit is marked by al‑Tan'im, which is a place at a distance of 6 km from Makkah; (2) the southern limit is marked by Idah, 12 km from Makkah; (3) the eastern limit is al‑Ja'ranah, 16 km from Makkah; (4) the western limit is al‑Shumaysi, 15 km from Makkah.

The limits of the haram of the Prophet's shrine extend from ‘Ir to Thawr, a distance of 12 km ‘Ir is a hill near the miqat, and Thawr is a hill at Uhud.

Al‑‘Allamah al‑Hilli, an Imamiyyah legist, states in his work al‑Tadhkirah that "the haram of Makkah extends over an area of one band by one band (1 band =12miles), and the haram of al‑Madinah extends from ‘Ayir to ‘Ir. 13

- 1. Dhu al‑Hulayfah, nowadays known as Bi'r `Ali or Abyar `Ali, is at a distance of about 486 kms. from Makkah to the north and 12 km from al‑Madinah. (Tr.)

- 2. Al‑Juhfah, lies a distance of about 156 km from Makkah to the north‑west. (Tr.)

- 3. There are three points in the valley of al‑`Aqiq, 94 km from Makkah in the north‑east, from where ihram is assumed: al‑Maslakh, al‑Ghamrah, and Dhat al‑`Irq. According to the Imamiyyah fuqaha', it is permissible to assume ihram from any of these points, though al‑Maslakh is considered best, then al‑Ghamrah, and then Dhat al-Irq. (Tr.)

- 4. Yalamlam is a mountain of the Tahamah range, lying at a distance of 84 km from Makkah (Tr.)

- 5. Qarn al‑Manazil, the miqat for those coming from al‑Ta'if, lies at a distance of 94 km east of Makkah.

- 6. According to the Hanafi school, bringing along of hady substitutes the talbiyah, as mentioned by Ibn `Abidin and the author of Fath al‑Qadir.

- 7. "Ish'ar" here means slitting the right side of the camel's hump. By "taqlid" is it meant the hanging of an old horseshoe in the neck of the hady, which is meant to identify the sacrificial animal as such.

- 8. The nal has a sole, but is devoid of the covering on the sides and the back of the foot at the heels. The khuff is the common shoe, which covers the foot on the sides and the heels.

- 9. After performing ramy al jamarat and halq, everything except intercourse and perfume becomes permissible to the pilgrim—such as wearing of stitched clothes and other things. This is called al‑hill al‑'awwal (or "the first relief" from the restrictions of ihram). After the last tawaf all things including intercourse become permissible to him. This "second relief”—to be explained later‑‑is called al‑hill al‑thani.

- 10. According to al‑Tadhkirah, it is necessary during the next Hajj that the `separation' should take place from the point where the misdemeanour was committed during the first Hajj. The meaning of `separation' (tafriq) is that the two should not be alone together without there being present a third muhrim, whose presence acts as a deterrent.

- 11. According to the Imamiyyah, the kaffarah for cutting a single nail is giving one mudd (800 grams) of food in charity. If all the nails of fingers and toes are cut in one sitting, the kaffarah is one sheep, but if done in several sittings, it is sacrifice of two sheep.

- 12. The author of al‑Tadhkirah ascribes impermissibility of shadowing oneself while moving to Abu Hanifah, and the author of Rahmat al‑'ummah ascribes to him permissibility.

- 13. Al‑Mughni states, "Those knowledgeable about al‑Madinah do not know of any Thawr or `Ir," but it is possible that names have changed with time.

Tawaf

Tawaf is an essential part (rukn) of ‘Umrah, and the tawaf al‑ziyarah (also called ‘tawaf al‑'ifadah') is a rukn of the Hajj al‑tamattu; Hajj al‑'ifrad and Hajj al‑qiran. As said earlier, the assumption of ihram is the first act of the pilgrim regardless of whether he comes for ‘Umrah mufradah or for any of the three types of Hajj.

Now, after the assuming of ihram, what is the next step for the pilgrim? Is it tawaf, or wuquf, or something else? The answer is: it depends on the purpose (niyyah) with which the pilgrim assumes ihram. If it is ‘Umrah, then the next step is tawaf, regardless of whether it is ‘Umrah mufradah or ‘Umrat al‑tamattu.’ Thus tawaf is the second step for the mu'tamir (pilgrim intending ‘Umrah), by agreement of all the legal schools.

However, if the purpose of ihram is Hajj only‑‑such as in the case of pilgrim on Hajj al‑'ifrad, or one intending to perform the Hajj al‑tamattu’ after getting through the acts of ‘Umrah‑‑the second step is (as shall be explained later) wuquf in ‘Arafat.

In other words, one who enters Makkah with the sole purpose of ‘Umrah or Hajj al‑tamattu’ performs tawaf before everything else, then sa’y and then taqsir. After this, if on Hajj al‑tamattu’, he assumes ihram for a second time; but he is not required to perform another tawaf after this ihram. The tawaf (pertaining to the Hajj acts), as we shall explain, comes after getting through the wuquf at ‘Arafat and passage through Mina.

Kinds of ‘Umrah in View of the Ahl al-Sunnah

The imams of the four Sunni schools distinguish between three kinds of tawaf:

1. Tawaf al-Qudum

It is the tawaf performed by the ‘outsiders', (i.e. those coming from outside Makkah and from beyond its outskirts within a radius of 88 km) on entry into Makkah. It is similar to the two raka'at of salat performed as tahiyyat al‑masjid (lit. ‘greeting of the mosque'), and so is also called ‘tawaf al‑tahiyyah'' The four Sunni schools agree on its being mustahabb, and no penalty is required for default according to all except the Malikis who require a blood sacrifice.

2. Tawaf al-Ziyarah

This tawaf (also called ‘tawaf al‑'ifadah')is performed by Hajj pilgrims after getting through the acts of Mina, the ramy of jamarat al‑‘aqabah, the sacrifice (dhibh), and the halq or the taqsir. The pilgrim performs this tawaf on returning to Makkah. It is called ‘tawaf al‑ziyarah' because it is performed on the visit (ziyarah) to the Ka'bah after leaving Mina. It is called ‘tawaf al‑'ifadah' because the pilgrims pour forth (‘ifadah' means ‘pouring forth') into Makkah from Mina. It is also called ‘tawaf al‑hajj' because by consensus of all the schools it is rukn of the Hajj.

After performing this tawaf all things become permissible for the (Sunni) Hajj pilgrim, even sexual intimacy with women. The Imamiyyah, who disagree, say that sex is not permitted before performing the sa’y between Safa and Marwah followed by a second tawaf, which they call ‘tawaf al‑nisa'.' This shall be further clarified presently.

3. Tawaf al-Wada’

It is the last tawaf performed by the Hujjaj before departing from Makkah. The Hanafi and Hanbali schools consider it obligatory, though all that is required of the defaulter is a sacrifice. The Malikis consider it mustahabb and do not require any penalty for the default. Al‑Shafi'i has two opinions on this matter. (al‑Mughni, al‑Fiqh ‘ala al‑madhahib al‑'arba’ah, Fiqh al‑Sunnah)

Kinds of Tawaf from the Imamiyyah Viewpoint

The Shi’ah agree with the Sunni schools about the legitimacy of the above three kinds of tawaf, and regard the second tawaf i.e. tawaf al‑ziyarah as a rukn of the Hajj whose omission makes the Hajj invalid.1 However, the first kind, i.e. tawaf al‑qudum is considered mustahabb, and may be omitted. Regarding the third, i.e. tawaf al‑wada; they agree with the Maliki school in its being mustahabb, there being nothing on the defaulter.

However, the Shi’ah add another kind of tawaf to the above three, the tawaf al‑nisa', which they consider obligatory, its omission being impermissible in ‘Umrah mufradah as well as in all the three kinds of Hajj (i.e. tamattu; qiran, and ifrad). They do not permit its omission except in case of ‘Umrat al‑tamattu; considering the tawaf al‑nisa' performed during the course of Hajj al‑tamattu’ as sufficient.

The schools of the Ahl al‑Sunnah state that there is no obligatory tawaf after the tawaf al‑ziyarah, after which sexual intimacy is permissible. The Shi'ah say that it is obligatory upon the pilgrim, after performing tawaf al‑ziyarah and the sa’y, to perform another tawaf, the tawaf al‑nisa; which derives its name precisely because of the sanction of permissibility of relations with women (nisa') following it.

They say that if the pilgrim defaults in regard to this tawaf, sexual relations are forbidden for man and woman (for men even the conclusion of marriage contract), unless he/she performs it in person or deputes another to perform it on his/her behalf; and if he/she dies without performing it or without deputing someone to do it for him/her, it is incumbent upon the heir (wali) to have it performed on the behalf of the dead person.

According to them, even in case of a mumayyiz child who fails to perform the tawaf al‑nisa' while performing the Hajj, even if he omits it by mistake or on account of ignorance, women are forbidden to him after adulthood nor he may conclude a marriage contract (‘aqd) unless he performs it himself or deputes another for the job.

To summarize, the Shi’ah consider three tawaf's to be obligatory for the pilgrim on the Hajj al‑tamattu’: (1) the tawaf of the conjugate ‘Umrah, of which it is rukn;(2) the tawaf al‑ziyarah (or tawaf al‑hajj), which is a rukn of the Hajj; and (3) the tawaf al‑nisa', which is also an obligatory part of it, though not a rukn similar to the Surat al‑Fatihah in relation to the salat. The Ahl al‑Sunnah agree with the Shi’ah in all except tawaf al‑nisa; which they do not recognize. However, of a pilgrim on the Hajj al‑'ifrad or Hajj al‑qiran, only two tawaf's are required by the Shi’ah.2

Entry into Makkah

All the schools agree that it is mustahabb for one entering Makkah to take a bath, pass through its heights during the approach towards the city, enter through Bab Bani Shaybah, raise his hands on sighting al‑Bayt al‑Haram, pronounce takbir and tahlil, and to recite whatever he can of certain prayers prescribed by tradition. The Malikis, however, disagree about the istihbab of raising the hands for the du’a'.

Thereafter, he approaches the Black Stone; if possible kisses it or caresses it with his hand or else just makes a gesture with his hand, and prays.

According to the Imamiyyah, it is mustahabb while entering the haram of Makkah to be barefooted, to chew the leaves of a plant called ‘adhkhir' used for refreshing the mouth, or to clean the mouth to purge its odour.

The Conditions (Shurut) of Tawaf

According to the Shafi'i, Maliki, and Hanbali schools ritual purity (taharah, i.e. freedom from hadath and khabath) is required; thus the tawaf of one who is Junub or a woman undergoing hayd or nifas, is not valid. Also, it is necessary to cover one's private parts completely as in salat.

The author of the Fiqh al‑Sunnah (p. 154, 1955) says: "In the opinion of the Hanafis, freedom from hadath is not an essential requirement. However, it is an obligation whose omission may be compensated through a blood sacrifice. So, if one performs tawaf in the state of minor impurity (hadath asghar) his/her tawaf is valid, though one is required to sacrifice a sheep. If tawaf is performed in the state of janabah or hayd,3 the tawaf is valid, though the sacrifice of a camel is required during the pilgrim's stay in Makkah."

According to al‑Fiqh ‘ala al‑madhdhib al‑'arba ‘ah (vol.I, p. 535, 1939): "The taharah of the clothes, the body, and the location of prayer (in salat) is (only) a highly recommended sunnah (sunnah mu'akkadah) from the Hanafi viewpoint; (this is true) even of tawaf, there being no penalty even if all the clothes are completely ritually unclean (najis)."

According to the Imamiyyah, taharah from hadath and khabath is a proviso for validity of an obligatory tawaf. In the same way, covering the private parts (satr al‑‘awrah) with a ritually clean cloth legitimately owned (ghayr maghsub) is also a requirement. Moreover, it should not be made of silk or the skin of an animal whose flesh may not be eaten, nor made of golden fabric –requirements which are the same as for salat.

It may be said that the Imamiyyah are even more stringent with regard to tawaf than salat. They consider a blood spot of the size of a dirham as pardonable for one performing salat, but not for one performing tawaf. Further, they consider wearing of silk and gold as impermissible even for women during tawaf (which is permissible for women in salat). According to the Imamiyyah, circumcision is a requirement for tawaf without which it is invalid, both for an adult man and a child (al‑Jawahir, al‑Hada'iq).

The manner of Performing Tawaf

According to the Imamiyyah and Hanbali schools, the purpose or niyyah must be specified in every tawaf; but according to the Maliki, Shafi’i and Hanbali schools, a general niyyah for the Hajj is
sufficient and no separate niyyah for tawaf is required. (al‑Jawahir, Fiqh al‑Sunnah) As pointed out earlier, niyyah as a motive behind all voluntary actions is an inevitable and necessary matter; as such, debate and controversy regarding it is futile.

Ibn Rushd, in his Bidayat al‑mujahid, writes: "The Sunni legists are in consensus on the opinion that every tawaf whether obligatory or not, begins from the Black Stone (and according to the Fiqh al‑Sunnah ends thereat). The pilgrim, if he can, kisses it, otherwise touches it with his hand. Then, with the Ka'bah on his left, starts moving towards the right to make the seven circumambulations, walking with a moderately fast pace (ramal) during the first three rounds and with an ordinary pace during the last four rounds. (The ramal4 applies to the tawaf al‑qudum performed on entry into Makkah by the ‘Umrah and Hajj pilgrim, not one on Hajj al‑tamattu; also no ramal is required of women pilgrims). Then he kisses al‑Rukn al‑Yamani" (the south‑western corner or rukn of the Ka'bah which falls before the one with the Black Stone mounted on it during the anti‑clockwise rounds made during tawaf.—Tr.).

According to the Imamiyyah, there are certain things obligatory (wajib) in tawaf they are as follows:

1. The niyyah, to which reference has already been made.

2. The tawaf should be made on foot, and in case of inability on a mount. Many Imamiyyah fuqaha' do not recognize this requirement and a group of them explicitly permit tawaf on a mount. They cite the precedent of the Prophet (S) who performed tawaf on camelback, according to traditions in al‑Kafi and Man la yahduruhu al faqih.

3. The condition that the tawaf should begin and end at the Black Stone is stated in this manner in many books of fiqh: "The tawaf should be begun at the Black Stone, so that the first part of one's body is in front of the first part of the Black Stone. Then the pilgrim begins moving with the Black Stone on his left, ending the last circumambulation exactly in line with the point where he commenced his first, thus ensuring that the seven rounds are completed without advancing or falling behind a single step or more.

The danger of advancing or falling behind necessitates that the first circumambulation should commence at the beginning of the Black Stone; because if begun in front of its middle, one cannot be sure of having advanced or fallen behind some steps; and if one began from its end, then the beginning may not be said to have commenced from the Black Stone ...." and so on and so forth.

The author of the Jawahir al‑kalam makes elaborate critical remarks about this kind of meticulousness, which show his balanced and moderate taste and temperament. This is the substance of what he has to say: "The difficulty and the exasperating haraj (impediment) inherent in realizing such a requirement is not concealed .... To give it consideration is to fall into silly scruples. The debate is similar to the depraved and unseemly musings of madmen.5 And it has been narrated of the Prophet (S) that he performed tawaf on camelback, and attaining this kind of precision is infeasible when on a mount."

That which can be understood from the remarks of the author of al‑Jawahir is that he agrees with the author of al‑Shara'i’, who confines himself to this statement, without adding another word: "It is obligatory to begin and end the tawaf at the Stone." It means—as is also apparent from his above‑mentioned remarks‑‑that in the opinion of the author of al‑Jawahir it is sufficient to fulfil this condition in the commonly understood sense. Al‑Sayyid al‑Hakim, in al‑Munsik, holds a similar position when he says, "The pilgrim performing tawaf should begin a little before the Stone with the intent of performing what is really obligatory. When he performs in this fashion he knows that he began at the Stone and finished thereat."

4. The Ka'bah must be on the left during tawaf. According to al‑Sayyid al‑Khu'i, it is sufficient to realize this requirement in the commonly understood sense (i.e. without giving scrupulous attention to precision); slight shifts of direction do not matter as long as the movement meets the requirement in the ordinary sense. According to him the only crucial factor is satisfaction of the requirement in its ordinary sense.

5. The Hajar Isma'il must be included in tawaf. That is the circumambulation should be made around it and without entering it, 6 and it should be kept to the left while making the tawaf. Thus if one passes between it and the Ka'bah during tawaf making it fall to his right, the tawaf becomes invalid.

6. The body should be completely out of the Ka'bah (because God says وَلْيَطَّوَّفُوا بِالْبَيْتِ الْعَتِيقِ which means that tawaf should be made around and outside the Ka'bah, not inside it). Also if one were to walk on its walls or on the protruding part of its walls' foundations, the tawaf would be invalid.

7. The tawaf should be performed between the Ka'bah and the rock called Maqam Ibrahim, which is a stone on which Abraham (‘a) stood during the building of the Ka'bah.

8. The tawaf should consist of seven rounds, no more and no less. Obviously, recognition of these points requires an informed guide to indicate them to the pilgrims.

After finishing tawaf it is obligatory to offer two rak'ah's of salat behind the Maqam Ibrahim regardless of the crowd; but if it is not possible, one may offer the prayer in front of it, and if that, too, is not possible, anywhere in al‑Masjid al‑Haram. It is not permissible to begin a second tawaf without performing the two‑rak’ah prayer. If one forgets performing them, it is obligatory on him to return and perform them. But if returning were not feasible, he can offer them wherever he can. This is true of the obligatory tawaf. But if the tawaf were a mustahabb one, he can offer the two rak’ah's wherever he can. (al‑Tadhkirah, al‑Jawahir, al‑Hada'iq)

This shows that the jurists of all the legal schools are in agreement over certain points: the tawaf starts and ends at the Black Stone; the Ka'bah should be on the left during tawaf; the tawaf should be made outside the Ka'bah; seven rounds should be made; kissing the Black Stone and the Rukn is mustahabb. However, they disagree with respect to the permissibility of break between successive rounds of the tawaf.

According to the Maliki, Imamiyyah, and Hanbali schools, continuity without break (muwalat) is obligatory. According to the Shafi’i and Hanafi schools, it is sunnah (i.e. mustahabb) to observe muwalat, so if there is a substantial break between the rounds without any excuse, the tawaf is not invalidated. (Fiqh al‑Sunnah). Similarly according to Abu Hanifah, if one leaves off after the fourth round, he must complete his tawaf if he is in Makkah; but if he leaves Makkah, he must compensate it with a blood sacrifice. (al‑Tadhkirah)

The schools disagree with respect to the necessity of the tawaf being undertaken on foot. The Hanafi, Hanbali, and Maliki schools consider it obligatory. According to the Shafi'i school and a group of Imamiyyah scholars it is not obligatory and one may perform tawaf on a mount. Also, they disagree with respect to the two‑rak'ah prayer (rak'atan) after tawaf. According to the Maliki, Hanafi, and Imamiyyah schools, the rak’atan—which is exactly like the daybreak prayer—are obligatory. The Shafi'i and Hanbali schools regard it as mustahabb.

The Mustahabbat of Tawaf

The book Fiqh al‑Sunnah, discussing the topic under the heading “Sunan al‑tawaf;” states, “Of things which are sunnah in tawaf are: kissing the Black Stone while starting the tawaf, accompanied with tahlil and takbir, to raise the two hands as in salat, to greet the Stone by drawing one's hands upon it (istilam), to kiss it soundlessly, to lay one's cheek on it if possible, otherwise to touch it only.” Other mustahabbat are: idtiba 7 for men, ramal, and istilam of al‑Rukn al‑Yamani.

According to al‑Lum’at al‑Dimashqiyyah, an Imamiyyah work, of things mustahabb in tawaf are: to halt in front of the Black Stone, to make the prayer later offered with the hands raised, to recite the Surat al‑Qadr, remember Allah—subhanahu wa ta'ala—, to walk peacefully, to draw one's hand on the Black Stone, to kiss it if possible otherwise to make a gesture, to draw one's hand on every corner of the Ka'bah every time one basses by or to kiss it, to draw one's hand on al‑Mustajar—which is in front of the door and before al‑Rukn al‑Yamani—during the seventh round, and to keep oneself as near as possible to the Ka'bah. To speak during tawaf apart from dhikr and recitation of the Qur'an, is makruh.

The Ahkam of Tawaf

According to the Imamiyyah, if a woman undergoes hayd during tawaf she discontinues tawaf and performs sa’y, if it happens after the fourth round. Then she completes the tawaf after attaining taharah, and she is not required to repeat the sa’y. But if the hadath occurs before completing the fourth round, she waits until the day of ‘Arafah. If by that time she regains taharah and is in a position to complete the remaining acts, she does so. Otherwise her Hajj is converted to Hajj al‑'ifrad.

As mentioned earlier, the Hanafis permit tawaf for a woman in the state of hayd, and do not require taharah. According to the Hanafi work Fath al‑Qadir, one who leaves three or fewer rounds of the tawaf al‑ziyarah should sacrifice a sheep; if four, he remains in the state of ihram as long as he does not complete the rounds of tawaf. But if he leaves off more than four rounds, it is as if he had not started the tawaf at all.

According to the Imdmiyyah, if after completing the rounds of tawaf one doubts whether he performed them correctly as required by the Shari’ah or whether he performed the exact number of rounds, his doubt is of no consequence. His tawaf is considered valid and complete and there is nothing upon him. But if the doubt occurs before finishing the tawaf, he should consider whether he has performed at least seven rounds, such as when he doubts whether he made seven or eight rounds. If he is certain of having performed seven rounds, then his tawaf is considered valid.

However, if he is not certain of having performed seven rounds‑‑as in the case when he doubts whether he is in his sixth or seventh round, or in his fifth or sixth‑‑in that case his tawaf is invalid and he should start afresh. It is preferable in such a case to complete the present tawaf before starting afresh.8 This is true of a wajib tawaf. In case of a mustahabb tawaf, the basis is the least number of rounds under seven one is certain of having performed, regardless of whether the doubt occurs during or after the last round.

For the non‑Imamiyyah schools, the rule is the least number of rounds one is certain of having performed—a rule which is similar to the one they apply to the doubt in the number of rak’ah's of salat.

These are the ahkam, the mustahabbat, and the wajibat of tawaf, which, like the ruku’ and sujud in salat, is always the same in all cases, whether as a part of the ‘Umrah mufradah, ‘Umrat al‑tamattu; Hajj al‑qiran, or Hajj al‑'ifrad, and regardless of whether it is tawaf al‑ziyarah, tawaf al‑nisa; tawaf al‑qudum, or tawaf al‑wada’.

As mentioned above, the tawaf is the next act after ihram in ‘Umrat al‑tamattu; but in the Hajj its turn comes after the pilgrim has gone through the rituals of Mina’ (on the ‘Id day) as shall be explained later.

- 1. According to the author of al‑Hada'iq, Hajj is invalid if tawaf is omitted intentionally, but not if omitted by mistake; although it is obligatory to perform it after omission.

- 2. According to Ibn Rushd, in his Bidayah, the four Sunni schools agree that the pilgrim of Hajj al‑ramattu 'and its related `Umrah is required to perform tawaf twice; the one on Hajj al‑afrad is required to perform tawaf once. They disagree regarding Hajj al‑qiran, in which case according to al‑Shafi`i, Malik, and Ahmad ibn Hanbal, one tawaf is required, but two according to Abd Hanifah.

- 3. According to al‑Jawahir, al‑Masalik al‑`Urwat al‑wuthqa and other works of Imamiyyah fiqh, it is not permissible for one in the state of janabah or hayd to enter or pass through al‑Masjid al‑Haram or Masjid al‑Rasul (al‑Madinah), to say nothing of tarrying (makth) therein. However, it is permissible for one in the state of janabah or hayd to pass, without stopping or halting, through other mosques.

- 4. `Ramal' means walking fast, without running or making a rush. According to the Imamiyyah work al‑Lum`ah, ramal is mustahabb in the first three rounds of tawaf—a position which is exactly the same as that of the four Sunni schools.

- 5. The author of al‑Jawahir makes this remark when comparing those who stipulate such kind of conditions for tawaf to others with a similar attitude with regard to the niyyah of salat.

- 6. Hajar Isma`il ibn Ibrahim (`a) is the place where his house was built, and there he buried his mother.

- 7. By `idtiba is meant the style of wearing the rida' whose hanging sides are drawn under the right armpit and then thrown over the left shoulder. In the book al‑Fiqh `ala al‑madhahib al‑'arba`ah, the istihbab of idtibta'is ascribed to the Hanafi, Shafi`i, and the Hanbali, not to the Maliki, schools.

- 8. This is in agreement with the fatawa of al‑Sayyid al‑Hakim and al‑Sayyid al‑Khu'i.

Sa'y

All the schools agree that sa’y follows the tawaf, or its rak'atayn for those who consider them wajib. So also they agree that one who performs sa’y before tawaf should revert and perform his tawaf first and then the sa’y. I haven't come across any opinion holding that the sa’y must immediately follow the tawaf (muwalat).1

The Mustahabbat of Sa’y

According to the book Fiqh al‑Sunnah, it is mustahabb to ascend the hills of Safa and Marwah, and, facing the Holy Ka'bah, to pray to God for some religious or secular matter. It is well known that the Prophet (S), going out from Bab al‑Safa until he could see the Ka'bah. Facing it, he thrice declared the Unity of God and magnified Him; then praising God he said:

لا إله إلا الله وحده لا شريك له، له الملك، وله الحمد، يحيي ويمت، وهو على كل شيءٍ قدير،

لا إله إلا الله وحده، أنجز وعده، ونصر عبده، وهزم الأحزاب وحده

There is no god except Allah. He is One, and has no partner. To Him belongs the Kingdom and the Praise. He gives life and makes to die, and He is powerful over every thing. There is no god except Allah. He is One. He has fulfilled His promise and granted victory to His slave, vanquishing all the parties (of the infidels). He is One.

The mustahabbat of sa’y according to the Imamiyyah book al-Jawahir are the following: to draw one's hand on the Black Stone; to drink from the water of Zamzam and to sprinkle it on oneself; to leave [al‑Masjid al‑Haram] through the door facing the Black Stone; to ascend the Safa; to face al‑Rukn al‑‘Iraqi; to praise God (hamd) and magnify Him (takbir); to prolong one's stay at al‑Safa; and, after seven takbirs, to say three times:

لا إله إلا الله وحده، لا شريك له، له الملك، وله الحمد، يحيي ويميت،

وهو حيٌ لا يموت، بيده الخير، وهو على كل شيءٍ قدير.

After this he recites the prayer recommended by tradition (al‑du’a' al‑ma'thur).

As can be seen from the above, there is no divergence in this matter between the Shi’ah and the Sunni schools, except for some difference of expressions used. Also, I have not come across any jurist who regards taharah (from hadath and khabath) as obligatory for sa’y; most of the schools have expressly stated its being only mustahabb and the same is true (except for the Shafi'i) of the drawing of the hand (istilam) on the Black Stone before leaving for sa’y.

Also, all the schools are explicit about the istihbab of covering the distance between ‘the Milayn' (an expression used by the Hanafis and Malikis) or ‘the intervening distance' (wasat al‑masafah, an expression used by Shafi'is) or ‘between the Minaret and the Alley of the Pharmacists' (as Imamiyyah say) with a fast pace (harwalah).2 Without doubt, an informed guide is necessary to enable the pilgrims to recognize the points designated as ‘Milayn' or ‘the Alley of the Pharmacists' (Zuqaq al‑‘Attarin), or ‘the Minaret'.

The Way of Performing Sa’y

Although there is agreement between the schools about the necessity of sa’y, they disagree about its being an essential part (rukn) of the rites of Hajj. According to the Imami, Shafi’i, and Maliki schools, it is a rukn; according to Abu Hanifah, it is not a rukn, though a wajib. Two different traditions are narrated from Ahmad ibn Hanbal. (al‑Tadhkirah, Fiqh al‑Sunnah)

All are agreed on the number of ashwat (sing. shawt) being seven, and that the performer of sa’y (i.e. sa’i) should begin at Safa going towards Marwah, and return again to Safa,3 covering this distance seven times. Thus the pilgrim makes four ashwat going from Safa to Marwah and three ashwat while returning from Marwah to Safa, beginning his first shawt from Safa and finishing the seventh at Marwah.

The schools disagree as to the permissibility of making the sa’y on a mount in spite of the ability to walk, and all of them, with the exception of the Hanbalis, permit it regardless of whether one can walk or not. The Hanbalis say that it is permissible only for one who cannot walk.

I have not come across any opinion regarding continuity (muwalat) between the ashwat as wajib4, with the exception of the Hanbalis, who, as also mentioned by the author of al‑Fiqh ‘ala al‑madhahib al‑'arba’ah, consider it wajib. Also, it is said of Malikis that according to them if the gap between the ashwat were to become inordinate, one should begin sa’y afresh; but if the gap were not prolonged, such as when one discontinues for selling or purchasing something, it is forgivable.

Note

Al‑Sayyid Muhsin al‑Hakim, in his book on the rites of Hajj, says, "It is obligatory, while going and returning, to keep one's face turned towards one's destination .... Therefore, if someone were to turn his face away from it or were to walk backwards, or in a lateral way, it is not correct. However, there is nothing wrong in turning the face this way and that way while continuing to face the destination in the course of movement."

He means that it is obligatory that the body should face Marwah while going and should be toward Safa while returning, and it is not permissible to make the approach with only a shoulder facing the direction of the destination—as may happen due to overcrowding of the pilgrims; also, while moving, the face in particular should remain in the right direction.

Al‑Sayyid al‑Khu'i makes a similar statement in his work on the rites of Hajj; his words are: "It is wajib to face Marwah while going and to be towards Safa while returning. Thus if one turns his back towards Marwah while going and towards Safa while returning, it does not satisfy (lam yujzi', i.e. the conditions for a correct sa’y). Also, one should not turn towards his right or left, neither should he turn back either during the going (dhahab) or during the return (iyab).

The Ahkam of Sa’y

One who cannot perform the sa’y, either on foot or on a mount, may depute another to perform it on his/her behalf, and the Hajj would be correct. There is nothing wrong in looking to the right or the left or turning back to look during the coming and the going.

If someone makes more than seven ashwat intentionally, his sa’y is invalid, but not if the lapse was unintentional. If one were to have doubts about the number of the ashwat performed after finishing his sa’y, it is assumed to have been correct and nothing is required of him. The author of al‑Jawahir bases this hukm about the doubt after finishing on the principle of negation of haraj, as well as on tradition.

However, if the doubt were to occur before finishing the sa’y, the author of al‑Jawahir says that there is no difference of opinion about, nor any objection against, the invalidity of the sa’y in case of any doubt about the number of the ashwat performed, whether of having exceeded or fallen short of the required number. In both cases the sa’y at hand is invalid. If one suspects one's having begun from Safa, his sa’y is correct. But if he thinks that he might have started from some other place, it is invalid. Also if one suspects the number of ashwat already performed, and does not know how many one has completed, one's sa’y is invalid.

If one has recorded the number of ashwat performed, but doubts whether one started the first one from Safa or Marwah, he should consider the number of his present shawt and the direction he is facing. If, for instance, the number is an even one (2, 4, or 6) and he is at Safa or facing it, his sa’y is correct; because this shows that he had begun at Safa. Similarly, if the number is odd (3, 5, or 7) and he is at Marwah or facing it. But if the case is reverse, that is in an even shawt he is facing Marwah or in an odd one facing towards Safa, his sa’y is invalid and should be begun anew. (al‑Jawahir)

According to the other schools, the rule is to take the minimum one is certain of having performed, as in the case of salat. (Kifayat al‑'akhyar)

According to Abu Hanifah the Hajj is not invalid even if the sa’y is omitted altogether, because it is not a rukn and can be made good by a sacrifice. (al‑Shi'rani's al‑Mizan)

- 1. Al‑Sayyid al‑Hakim says: "It is not obligatory to hasten to perform the sa'y after finishing the tawaf and its salat, but it is also not permissible to delay voluntarily until the next day." Al‑Sayyid al‑Khu'i says, "It is binding on one not to make a considerable delay without need in performing the sa’y after the tawaf and its salat, and it is not permissible to delay it intentionally until the next day." I say, these verdicts of the two scholars are supported by sahih ahadith.

- 2. Harwalah is a kind of walk which resembles that of a camel when it wants to pick up speed. According to the Imamiyyah, if the one performing the sa’y is riding, he should spur it to make the beast walk faster.

- 3. The author of al‑Mizan quotes Abu Hanifah to the effect that he does not see any objection in the converse, i.e. performing of the sa’y by starting at Marwah and finishing at Saf’a.

- 4. Al‑Sayyid al‑Hakim in his book on the manasik of Hajj says that muwalat (continuity of succession) is not required in the ashwal of the sa’y, and it is permissible to separate or interrupt them—even after a single shawt—and to pick up the count again after the break.

Taqsir

According to Ahmad ibn Hanbal and Malik, it is necessary to shave (halq) or shorten the hair (taqsir) of the entire head. According to Abu Hanifah the same of a one‑fourth portion of the head is sufficient; according to al‑Shafi'i cutting of three hairs suffices. (Karrarah's al‑Din wa al‑Hajj)

According to the Imamiyyah, in taqsir one has the free choice of performing it by shortening either the hair of the head, the beard, or the moustaches or the fingernails.

All the five schools agree that taqsir is an obligatory rite, though not a rukn. According to al‑Sayyid al‑Hakim, its relationship to Hajj is the same as that of the salam with respect to the salat, because the muhrim is relieved after it of his state of ihram in the same way as one performing the salat is after the salam.

The taqsir or the halq, whatever be the divergence of opinion about them, is to be performed once during 'Umrah mufradah and twice during Hajj al‑tamattu’. The details follow.

Taqsir in ‘Umrah

According to the Imamiyyah, one performing 'Umrat al‑tamattu' has to perform taqsir after the sa’y; it is not permissible for him to perform halq. After it, everything forbidden to him in the state of ihram becomes permissible. But if he performs halq, he should sacrifice a sheep. However, if he is on 'Umrah mufradah, he may choose between halq and taqsir, regardless of whether he brings along with him the hady or not.

If the taqsir is omitted intentionally, in case one had planned to perform Hajj al‑tamattu' and had assumed ihram before performing the taqsir, his 'Umrah is invalid and it is then obligatory upon him to perform Hajj al‑'ifrad: that is, the rites of Hajj followed by 'Umrah mufradah, and it is better for him to do Hajj again the next year.1

According to non‑Imamiyyah schools, one has a choice between taqsir and halq after finishing his sa’y. As to relief from the state of ihram, if one were performing a non‑tamattu' 'Umrah, he obtains relief from ihram after halq or taqsir, regardless of whether the hady accompanies him or not. But if one is performing 'Umrat al‑tamattu; he is relieved of ihram if not accompanied by the hady; but if accompanied he remains in the state of ihram. (al‑Mughni)

Taqsir in Hajj

The second type of taqsir is a part of the rites of all the various kinds of Hajj‑tamattu', qiran, or ifrad‑‑to be performed by Hajj pilgrim after the dhabh or nahr (animal sacrifice) in Mina. All the schools agree that here one has a choice between taqsir and halq, halq being more meritorious. They disagree, however, in regard to one with matted hair, whether he must shave his head or if, like others, he also has a choice between halq and taqsir. The Hanbali, the Shafi' i, and the Maliki schools prescribe only halq for him, but the Imamiyyah and the Hanafi give him the same choice as others.

All the legal schools agree that women don't have to perform halq, rather, they may perform only taqsir.

Abu Hanifah and a group of Imamiyyah legists say that one who is bald, completely or partially, as when only the frontal portion of the head is hairless, must nevertheless draw the razor over the [hairless portion of the] head. The rest only consider it mustahabb (al‑Hada'iq, Fiqh al‑Sunnah).

According to the Imamiyyah, the halq or the taqsir is obligatory in Mina. Therefore, one who departs without halq or taqsir should return to perform either of the two, regardless of whether his lapse was intentional or not, and despite the knowledge or out of ignorance. However, if it is difficult or infeasible for him to return, he may perform it wherever he can.

As to the rest, they say that it should be performed within the haram. (Fiqh al‑Sunnah)

All agree that sex is not permitted after the halq or the taqsir. The Malikis include perfume as also being impermissible. The Imamiyyah include with the above two hunting (sayd), which is forbidden because of the respect for the sanctity of the haram. Apart from these three things, the rest are permissible by the consensus of all the five schools. For the four Sunni schools, everything, including sex, becomes permissible after the tawaf al‑ziyarah. As for the Imamiyyah, sex and perfume are not allowed until after the tawaf al‑nisa'.

We conclude this section with the words of al‑'Allamah al‑Hilli in his Tadhkirah:

If [the pilgrim] departs from Mina without halq or taqsir, he returns to perform it there‑‑an obligation if within the reach of possibility. But if his returning is not possible, he performs halq wherever he is, sending his hair to be carried to Mina to be buried there, which if he cannot there is nothing upon him .... The time for halq is on the day of ‘Id, by consensus, for the Almighty has said [in Qur'an]:

وَلَا تَحْلِقُوا رُءُوسَكُمْ حَتَّىٰ يَبْلُغَ الْهَدْيُ مَحِلَّهُ

"And do not shave your head until the sacrifice reaches its [specified] destination." (2:196);

and the place of the sacrifice (hady) is Mina on the day of ‘Id. It has been recorded that the Prophet (S) performed first ramy, then nahr, and then halq, at Mina on the ‘Id day.

We shall have occasion to refer to the hukm about the ha1q performed prior to the dhabh while discussing later the rites of Mina.2

- 1. This agrees with the fatwas of al‑Hakim and al‑Khu'i. Al‑Hakim, however, distinguishes between one who forgets (nasi) and one who is ignorant (jahil); he excuses the first not the latter, who is included with the willful defaulter (`amid).

- 2. This agrees with the fatwas of al‑Hakim and al‑Khu'i. Al‑Hakim, however, distinguishes between one who forgets (nasi) and one who is ignorant (jahil); he excuses the first not the latter, who is included with the willful defaulter (`amid).

The Wuq’uf

The Wuq’uf in ‘Arafat

The pilgrim performing ‘Umrah mufradah or Hajj al‑tamattu’ first assumes ihram, then performs tawaf offers the rak’atayn, then performs sa’y, then taqsir. This order is obligatory, and in it while the ihram precedes all the other steps, the tawaf precedes the salat, the salat is prior to the sa’y, and at the end is taqsir.1

The Second Rite of Hajj

The rites of Hajj, as in the case of ‘Umrah, start with ihram. However, the rite which is next to ihram in the case of Hajj, and is considered one of the arkan of Hajj by consensus, in the wuquf (halt) in ‘Arafat, there being no difference whether one is on Hajj al‑'ifrad or Hajj al‑tamattu; although it is permissible for those on Hajj al‑'ifrad or Hajj al‑qiran to enter Makkah to perform a tawaf after assuming ihram and before proceeding to ‘Arafat. This tawaf (called tawaf al‑qudam) resembles the rak’atayn called tahiyyat al‑masjid, recommended as a mark of respect to a mosque.

Al‑Sayyid al‑Hakim, in his book on the rites of Hajj, says, "It is permissible for one intending Hajj al‑qiran or al‑'ifrad to perform the mustahabb tawaf on entering Makkah and before proceeding to wuquf [in ‘Arafat]." Ibn Hajar, in Fath al‑Bart bi Sharh al‑Bukhari, writes: "All of them [the four legal schools] agree that there is no harm if one who has assumed ihram for Hajj al‑'ifrad performs a tawaf of the (Holy) House," that is, before proceeding to ‘Arafat. One on Hajj al‑tamattu', as said, should perform the tawaf of ‘Umrat al‑tamattu’ instead of the tawaf al‑qudum.

Before the Halt in ‘Arafat

There is consensus among the legal schools that it is mustahabb for the Hajj pilgrim to go out from Makkah in the state of ihram on the day of Tarwiyah (the 8th of Dhu al‑Hijjah), passing towards Mina on his way to ‘Arafat.

According to the Imamiyyah books al‑Tadhkirah and al-Jawahir, it is mustahabb for one intending to proceed towards ‘Arafat not to leave Makkah before offering the zuhr and ‘asr prayers. The four Sunni schools say that it is mustahabb to offer them at Mina. (al‑Mughni)

In any case, it is permissible to proceed to ‘Arafat a day or two before that of Tarwiyah, in particular for the ill, the aged, women, and those who are claustrophobic. Also it is permissible to delay until the morning of the 9th so as to arrive at ‘Arafat by the time when the sun crosses the meridian (zawal).

I have not come across any jurist who considers it wajib to spend at Mina the night before the day of wuquf at ‘Arafat, or to perform some rite there. Al‑‘Allamah al‑Hilli, in his Tadhkirah, writes: "To spend the night of ‘Arafah at Mina for resting is mustahabb; but it is not a rite, nor is there anything against one who doesn't do it." Fath al‑Bari and Fath al‑Qadir have something similar to say.

The word ‘rest' (for istirahah) used by al‑‘Allamah al‑Hilli does not need to be explained, for travel in the past used to be exhausting; so he considered it mustahabb for the pilgrims to stay for the night at Mina so as to arrive looking fresh and in good spirits at ‘Arafat. But travel today is quite a pleasure. Therefore, if one spends the night of ‘Arafah in Makkah, going to ‘Arafat the following morning, or after the zuhr prayer, passing through Mina on his way—as the pilgrims' practice is nowadays—that is sufficient and there is nothing wrong in that. The pilgrim will return to Mina later after the halt in ‘Arafat, for the ramy al‑Jamrah—but to that we shall come later.

The Period of the Halt in Arafat

There is consensus among the legal schools that the day of the halt in 'Arafat is the 9th of Dhu al‑Hijjah, but they disagree as to the hour of its beginning and end on that day. According to the Hanafi, the Shafi'i, and the Maliki schools, it begins at midday on the 9th and lasts until the daybreak (fajr) on the tenth. According to the Hanbali school, it begins from the daybreak on the 9th until daybreak on the tenth. According to the Imamiyyah, from midday on the 9th until sunset on the same day, for one who is free to plan; and in case of one in an exigency, until the following daybreak.

It is mustahabb to take a bath for the wuquf in 'Arafat, to be performed like the Friday bath. There is no rite to be performed in 'Arafat except one's presence there: one may sleep or keep awake, sit, stand, walk around or ride a mount.

The Limits of ‘Arafat

The limits of 'Arafat are ‘Arnah, Thawbah, and from Nimrah to Dhu al‑Majaz, which are names of places around 'Arafat. One may not make the halt in any of those places, neither in Taht al‑'Arak, because they are outside 'Arafat. If one were to make the halt in any of those places, his Hajj is invalid by consensus of all the schools, with the exception of the Maliki, according to which one may halt at ‘Arnah though he will have to make a sacrifice.

The entire area of 'Arafat is mawqif (permissible for the wuqaf) and one may make the halt at any spot within it by consensus of all schools. Al‑'Imam al‑Sadiq (‘a) relates that when the Prophet (S) made the halt at 'Arafat, the people crowded around him, rushing along on the hoof‑prints of his camel. Whenever the camel moved, they moved along with it. (When he saw this), the Prophet said, "O people, the mawqif is not confined to where my camel stands, rather this entire 'Arafat is mawqif," and pointed to the plains of 'Arafat. "If the mawqif were limited to where my camel stands, the place would be too little for the people." (al‑Tadhkirah)

The Conditions Applicable to the Halt

Taharah (ritual purity) is not a condition for the halt at 'Arafat, by consensus of all the schools.

According to the Imamiyyah and the Maliki schools, the halt at ‘Arafat must be made with prior intention (niyyah) and with the implied knowledge that the place where he is halting is indeed 'Arafat. Thus if he were to pass on without knowing, or know without intending the wuquf it is not considered wuquf as such.

According to the Shafi’i and the Maliki schools, neither intent nor knowledge is a condition. All that is required is freedom from insanity, intoxication, and loss of consciousness. According to the Hanafis, neither intent, nor knowledge, nor sanity is a condition; whosoever is present in 'Arafat during the specific period, his Hajj is correct, intent or no intent, whether he knows the place or not, whether sane or insane. (Fiqh al‑Sunnah, al‑Tadhkirah)

Is it necessary to make the halt in 'Arafat for the full specified period, or is it sufficient to be present there for some time, even if it is for a single moment?

According to the Imamiyyah, there are two kinds of periods for the halt, depending on whether one arrives at a time of his own choice (ikhtiyari) or the time is forced upon him by circumstances beyond his control (idtirari). In the case of the former, the period of halt for him is from midday on the ninth until sunset on the same day; in the case of the latter, the period lasts until the daybreak of the tenth.

So one who can make the halt from noon until sunset for the entire period, it is wajib upon him; although halt not for the entire period but halt for a part of it is rukn [that is without it the Hajj would not be valid], the rest being merely a wajib. This means that if someone omits the halt his Hajj is invalid for not performing a rukn of it. But if one makes a short halt, he has omitted only a wajib which is not rukn, and so his Hajj does not lose its validity [on this account]. Moreover, if someone cannot make the halt for the entire ikhtiyari period, due to some legitimate excuse, it is sufficient for him to make the halt for a part of the night of ‘Id.

According to the Shafi'i, the Maliki, and the Hanbali schools, mere presence even if for a single moment, is sufficient. (al‑Fiqh ‘ala al‑madhdhib al‑'arba ‘ah, Manar al‑sabil)

According to the Imamiyyah, if one leaves ‘Arafat intentionally before the midday, he must return and there is nothing upon him if he does. But if he doesn't, he must sacrifice a camel, and if that is beyond his means fast for 18 days in succession. But if the lapse were by oversight and he does not discover it until the time is past, there is nothing upon him, on condition that he is present at the halt in al‑Mash'ar al‑Haram in time. But if he remembers before the period expires, he must return as far as possible, and if he doesn't he must sacrifice a camel.

The Malikis say that one who makes the halt in ‘Arafat after the midday and leaves ‘Arafat before the sunset, he must repeat the Hajj the following year if he does not return to ‘Arafat before the daybreak (on the 9th). But all other legists say that his Hajj is complete. (Ibn Rushd's Bidayah)

According to al‑Fiqh al‑musawwar ‘ala madhhab al‑Shafi'i, "if one forgets and omits the halt, it is obligatory upon him to change his Hajj into ‘Umrah, and then complete the remaining rites of Hajj after performing its rites; also he must repeat the Hajj in the immediate following year."

It is mustahabb for one performing the halt in 'Arafat to: observe taharah; face the Holy Ka'bah; and do a lot of dua' and istighfar, with due surrender, humility, and with a heart‑felt presence before God.

The Wu’quf in Muzdalifah

The halt in Muzdalifah is the next rite after the halt in ‘Arafat, by consensus of all the schools. They also agree that when the Hajj pilgrim turns to Muzdalifah (where al‑Mash'ar al‑Haram is situated) after the halt in ‘Arafat, he is acting in accordance with the following Divine verse of the Qur'an:

فَإِذَا أَفَضْتُمْ مِنْ عَرَفَاتٍ فَاذْكُرُوا اللَّهَ عِنْدَ الْمَشْعَرِ الْحَرَامِ وَاذْكُرُوهُ كَمَا هَدَاكُمْ

When you pour forth from 'Arafat, then remember Allah in al‑Mash'ar al‑Haram,

remembering Him in the way you have been shown. (2:198)

Also, there is agreement that it is mustahabb to delay the maghrib (sunset) prayer on the night preceding the ‘Id day until Muzdalifah is reached. The author of al‑Tadhkirah writes that when the sun sets in ‘Arafat, then one should go forth before the (maghrib) prayer towards al‑Mash'ar al‑Haram and recite there the supplication prescribed by tradition. The author of al‑Mughni says, "It is sunnah (i.e. mustahabb) for one leaving ‘Arafat not to offer the maghrib prayer until Muzdalifah is reached, where at the maghrib and the ‘isha' prayers should be offered together.

There is no difference regarding this, as Ibn al‑Mundhir also points out when he says: "There is consensus among the ‘ulama', and no divergence of opinion, that it is sunnah for the Hajj pilgrim to offer the maghrib and the ‘isha' prayers together; the basis for it is that the Prophet (S) offered them together.'"2

All the legal schools, with the exception of the Hanafi, agree that if one were to offer the maghrib prayer before reaching Muzdalifah and not offer the two prayers together, his salat is nevertheless valid despite its being contrary to what is mustahabb. Abu Hanifah does not consider it valid.

The Limits of Muzdalifah

According to al‑Tadhkirah and al‑Mughni, Muzdalifah has three names: Muzdalifah, Jam’, and al‑Mash'ar al‑Haram, its limits are from al‑Ma'zamayn to al‑Hiyad, towards the valley of Muhassir. The entire Muzdalifah is mawqif, like ‘Arafat, and it is legitimate to make the halt at any spot inside it. According to al‑Madarik, it is a settled and definite matter among the Imamiyyah legists that it is permissible, in case of overcrowding, to ascend the heights towards the hill, which is one of the limits of Muzdalifah.

The Night at Muzdalifah

Is it obligatory to spend the entire night of ‘Id at Muzdalifah, or is it sufficient to halt in al‑Mash'ar al‑Haram even for a moment after the daybreak? (It is assumed, of course, that the meaning of wuquf is mere presence: one may be walking around, sitting or riding a mount, as in the case of the halt at 'Arafat).

According to the Hanafi, the Shafi’i, and the Hanbali schools, it is obligatory to spend the entire night at Muzdalifah and the defaulter is required to make a sacrifice. (al‑Mughni) According to the Imamiyyah and the Maliki, it is not wajib, though meritorious. This is what Shihab al‑Din al‑Baghdadi the Maliki, in his Irshad al‑salik, and al‑Hakim and al‑Khu'i have confirmed. However, no one has considered it a rukn.

As to halting in al‑Mash'ar al‑Haram after the daybreak, Ibn Rushd, in al‑Bidayah wa al‑nihayah, cites the consensus of the Sunni fuqaha' to the effect that it is one of the sunan (sing. sunnah) of the Hajj, not one of its furud (duties; sing. fard).

According to al‑Tadhkirah, "It is obligatory to halt in al‑Mash'ar al‑Haram after the daybreak, and if someone were to leave intentionally before the daybreak after halting there for the night, he must sacrifice a sheep. Abu Hanifah also says that it is obligatory to halt after the daybreak. The rest of the schools permit departure after midnight." Therefore, with the exception of the Imamiyyah and the Hanafi schools, others permit departure from Muzdalifah before the daybreak.

The Imamiyyah say that the time of halt in al‑Mash'ar al‑Haram is of two kinds: the first (ikhtiyari) is for one who has no reason for delaying, and that is the entire period between the daybreak and the sunrise on the day of ‘Id; whoever leaves advertently and knowingly from the Mash'ar before the daybreak and after being there for the whole or part of the night, his Hajj is not invalidated if he had halted at 'Arafat, although he must sacrifice a sheep. If he had left the Mash'ar on account of ignorance, there is nothing upon him, as made explicit in the above quotation.

The second (idtirari) is for women and those who have an excuse for not halting between the daybreak and the sunrise; their time extends to midday on the day of ‘Id. The author of al‑Jawahir says that there is both textual evidence (from hadith) as well as consensus to support the above prescription, and the fatawa of al‑Sayyid al‑Hakim and al‑Sayyid al‑Khu'i are also in accordance with it. The latter has not stated midday as the idtirari time limit, but says that it is sufficient to make the halt after sunrise.

The Imamiyyah also say that the wuquf in the two specified periods of time is a rukn of the Hajj. Therefore, if someone does not perform it altogether either in the ikhtiyari period for the night or in the idtirari period, his Hajj is invalid if he hadn't spent the night there; but not if the default ‑was on account of a legitimate excuse, on condition that he had performed the halt at 'Arafat. So one who fails to make the halts at 'Arafat and the Mash'ar, neither in the ikhtiyari nor in the idtirari period, his Hajj is invalid even if the failure was on account of a legitimate reason. It is obligatory upon him to perform Hajj the year after if the Hajj intended was a wajib one; and if it was a mustahabb Hajj, it is mustahabb for him to perform it the next year. (al-Jawahir)

The halt in al‑Mash'ar al‑Haram is held in greater importance by the Imamiyyah than the one in 'Arafat; that is why they say that one who loses the chance to be present at the halt in 'Arafat but participates in the halt at the Mash'ar before the sunrise, his Hajj is complete. (al‑Tadhkirah)

Mustahabbat of the Mash’ar

According to the Imamiyyah it is mustahabb for one performing Hajj for the first time to put his feet on the ground of the Mash'ar. (al-Jawahir)

According to the Imamiyyah, the Shafi’i and the Maliki schools, it is mustahabb while leaving for Mina to gather seventy pebbles, for the ramy al‑jamarat, at Muzdalifah. The reason for this, according to the author of al‑Tadhkirah, is that when the Hajj pilgrim arrives in Mina he should not be detained by anything from the rite of the ramy. Ibn Hanbal is narrated to have said that the pebbles may be gathered from any place; and there is no disagreement that it suffices to gather them from whatever place one wishes.

The maintenance of taharah, the pronouncing of tahlil, takbir, and du’a' (the prescribed one or something else) is also mustahabb.

- 1. Al‑Shaykh `Abd al‑Muta'al al‑Sa`idi says: This order is obligatory in the rites of `Umrah, but in the rites of Hajj there is no order of sequence between the tawaf and the halq, or between the sa’y and the wuquf at 'Arafat. See al‑Fiqh al‑musawwar ala Madhhabal‑Shafi'i.

- 2. This act of the Prophet (S) makes the grounds for the Imamiyyah for the permissibility of offering the two prayers together, because the Prophet (S) had said, صلوا كما رأيتموني اصلي "Pray in the same way as you see me praying." The fact that something is permitted at one time or a place suggests its permissibility in all places and at all times, unless there is some textual proof (nass) to show that it is particular and not general. But there is no nass in favour of its being particular (takhsis). Therefore, offering the two prayers together is permissible in general and at all times and in all places.

At Mina

All the schools are in agreement that the rites after the halt at al‑Mash'ar al‑Haram are those of Mina, and that departure from Muzdalifah is after the sunrise, and one who leaves before sunrise, passing beyond its limits, according to al‑Khu'i, must sacrifice a sheep as kaffarah.

At Mina one performs several rites which continue from the Day of Sacrifice (yawm al‑nahr), or the day of ‘Id, until the morning of the thirteenth or the night of the twelfth. The wajibat of Hajj are completed in Mina. The three days following the day of ‘Id (the 11th, 12th, and the 13th) are called "ayyam al‑tashriq."1

Three rites are obligatory at Mina on the day of ‘Id:
(1) ramy of the Jamrat al‑‘Aqabah;
(2) al‑dhabh (slaughtering of the sacrificial animal);
(3) halq or taqsir.

Agreeing that the Prophet (S) performed first the ramy, then the nahr (or dhabh) and then the taqsir, the schools disagree whether this order is obligatory and if it is impermissible to change that order, or if the order is only mustahabb and may be altered.

According to al‑Shafi’i and Ahmad ibn Hanbal, there is nothing upon one who changes the order. Malik says that if someone performs halq before the nahr or the ramy, he must make a sacrifice; and if he was performing Hajj al‑qiran then two sacrifices. (Ibn Rushd's al‑Bidayah). According to the Imamiyyah, it is a sin to change the order knowingly and intentionally, although repetition is not required. The author of al‑Jawahir says, "I have not found any difference of opinion on this point", and al‑Madarik states that the jurists are definite on this point.

Now we shall deal with each one of these rites under a separate heading.

- 1. There is disagreement about the Ayyam al‑Tashriq as to whether they comprise two or three days. As to their naming, it is because during those days the pilgrims used to dry strips of the meat of the sacrificed animals in the sun.

Jamrat al ‘Aqabah

The Number of Jimar

Ramy al jimar, or the symbolic throwing of pebbles performed in Mina, is obligatory upon all pilgrims of the Hajj, whether tamattu; qiran or ifrad. This rite is performed ten times during the four days. The first ramy, in which only one point called Jamrat al‑‘Aqabah is stoned, is performed on the day of ‘Id. On the second day, i.e. 11th of Dhu al‑Hijjah, the three jimar are stoned, and again every three on the third and the fourth day. This applies to the Hajj pilgrim who spends the night of the twelfth in Mina; otherwise there is no ramy for him on that day.

Jamrah of the Tenth of Dhu al‑Hijjah

The legal schools agree that it suffices to perform the ramy of the Jamrat al‑‘Aqabah any time from sunrise until sunset on the tenth of Dhu al‑Hijjah, but disagree as to its performance before or after that period. According to the Maliki, the Hanafi, the Hanbali and the Imami schools, it is not permissible to perform the ramy of the Jamrat al‑‘Aqabah before the daybreak, and if performed without an excuse, must be repeated. They permit it for an excuse like sickness, weakness, or insecurity (fear).

According to the Shafi'i school, performing the rite earlier is unobjectionable, for the specified period is mustahabb not wajib (al‑Tadhkirah, Ibn Rushd's Bidayah). However, if delayed until after sunset on the day of ‘Id, according to Malik, the defaulter must make a sacrifice if he performs the rite during the night or the next day. According to the Shafi’is, there is nothing upon him if he performs the rite of ramy in the night or the next day. (Ibn Rushd's Bidayah)

According to the Imamiyyah, the time of this ramy extends from sunrise until sunset on that day. If forgotten, the rite must be performed the next day. If again forgotten, on the 12th, and if one fails again, it can be performed on the 13th. But if one forgets until one has left Makkah, he may carry it out the following year, either himself or through a deputy who carries it out on his behalf.1

The Conditions of Ramy

There are certain conditions for the validity of ramy al jamarat:

1. Niyyah: stated by the Imamiyyah explicitly.

2. That each ramy must be carried out with seven pebbles; there is agreement on this point.

3. The pebbles must be thrown one at a time, not more; again there is consensus on this point.

4. The pebbles must strike the known target; there is also consensus on this point.

5. The pebbles must reach their target through being thrown (ramy); thus if they are tossed in some other manner, it does not suffice according to the Imami and the Shafi'i schools, and is not permissible according to the Hanbali and the Hanafi schools. (al‑Mughni)

6. The pebbles must be of stone, not of other material, like salt, iron, copper, wood or porcelain, etc.; this is accepted unanimously by all the schools except that of Abu Hanifah, who says that it is all right if pebbles are made of some earthen material, such as porcelain, clay or stone. (al‑Mughni)

7. The pebbles must be ‘new', that is, not used for ramy before; the Hanbalis state this condition expressly.

Taharah is not a condition in ramy, though desirable.

The Imamiyyah say that it is mustahabb that the pebbles be about the size of a fingertip and rough, neither black, nor white, nor red. The other schools say that their size must be about that of the seed of a broad bean (baqila').

The Imamiyyah also say that it is mustahabb for the Hajj pilgrim to perform all the rites facing the Qiblah, with the exception of the ramy of the Jamrat al‑‘Aqabah on the day of ‘Id, which is mustahabb to perform with one's back towards the Qiblah, since the Prophet (S) had performed this rite in that way. The other schools say that facing the Qiblah is mustahabb even in this rite.

Also, it is mustahabb to perform the ramy on foot (though riding a mount is permissible), not to be farther from the Jamrah than 10 cubits, to perform it with the right hand, to recite the prayers prescribed by tradition and other prayers. Following is one of the prayers prescribed by tradition:

اللهم اجعله حجاً مبروراً، وذنباً مغفوراً. اللهم إن هذه حصيائي، فأحصهن لي،

وارفعهن في عملي ... الله أكبر. اللهم أدحر الشيطان عني.

O God, make my Hajj a blessing, a forgiving of my sins. O God, these pebbles of mine, reckon them and place them high in my actions. God is Great. O God, repel Satan from me.

Doubt

What if one doubts whether the pebble thrown has struck its target or not? It is assumed not to have hit. If one doubts the number thrown, he may count from the least number of which he is sure he has thrown.
Jamrat al‑‘Aqabah is the first rite performed by the Hajj pilgrim in Mina on the day of ‘Id, which is followed by the dhabh, then halq or taqsir. After that he proceeds to Makkah for tawaf the same day.

On this day, there is no other rite of ramy for him. Now we shall proceed to discuss the sacrifice (hady).

Hady

The second obligatory rite in Mina is the hady or animal sacrifice. The issues related to it are: (1) its kinds, wajib and mustahabb, and the various kinds of wajib sacrifice; (2) regarding those for whom the hady is wajib; (3) the requirements of the hady; (4) its time and place; (5) the legal rules about its flesh; (6) the substitute duty of one who can neither find the hady nor possess the means to purchase one. The details are as follow:

The Kinds of Hady

The hady is of two kinds; wajib and mustahabb. The mustahabb sacrifice is the one mentioned in the following verse of the Qur'an:

فَصَلِّ لِرَبِّكَ وَانْحَرْ.

So pray unto the Lord and sacrifice (108:2),

which is interpreted as a commandment to the Prophet (S) to sacrifice after the ‘Id day prayer. A tradition relates that the Prophet (S) sacrificed two rams, one white and the other black.

According to the Malikis and the Hanafis, the sacrifice is obligatory for every family once every year; it is, they say, similar to the zakat al fitr: The Imamiyyah and the Shafi’i schools say that the mustahabb sacrifice can be carried out in Mina on any of the four days, the day of ‘Id and the three days following it (called ayyam al‑tashriq).

But at places other than Mina the sacrifice may be carried out only during three days: the day of ‘Id, and the 11th and the 12th. According to the Hanbalis, the Malikis, and the Hanafis, its time is three days whether in Mina or elsewhere. In any case, the best time for the sacrifice is after sunrise on the day of ‘Id during a period sufficient for holding the ‘Id prayer and delivering its two khutbahs (sermons).

The obligatory sacrifices, in accordance with the Qur'anic text, are four:

(1) The sacrifice related to Hajj al‑tamattu’ in accordance with the verse:

فَإِذَا أَمِنْتُمْ فَمَنْ تَمَتَّعَ بِالْعُمْرَةِ إِلَى الْحَجِّ فَمَا اسْتَيْسَرَ مِنَ الْهَدْيِ

If in peacetime anyone of you combines the ‘Umrah with the Hajj,

he must offer such sacrifice as he can (2:196)

(2) The sacrifice related to halq, which is a wajib open to choice, in accordance with the verse:

فَمَنْ كَانَ مِنْكُمْ مَرِيضًا أَوْ بِهِ أَذًى مِنْ رَأْسِهِ فَفِدْيَةٌ مِنْ صِيَامٍ أَوْ صَدَقَةٍ أَوْ نُسُكٍ

But if any of you is ill or suffers from an ailment of the head, he must offer a fidyah either by fasting or by alms‑giving or by offering a sacrifice. (2:196)

(3) The sacrifice related to the penalty (jaza') for hunting, in accordance with the verse:

وَمَنْ قَتَلَهُ مِنْكُمْ مُتَعَمِّدًا فَجَزَاءٌ مِثْلُ مَا قَتَلَ مِنَ النَّعَمِ يَحْكُمُ بِهِ ذَوَا عَدْلٍ مِنْكُمْ هَدْيًا بَالِغَ الْكَعْبَةِ

He that kills game by design, shall present, as an offering near the Ka’bah, a domestic beast equivalent to that which he has killed, to be determined by two honest men among you; (5:95)

(4) The sacrifice related to "ihsar" [some hindrance which keeps one from completing the rites of Hajj, such as illness or interruption due to an enemy], in accordance with the following verse (al‑Tadhkirah):

إِنْ أُحْصِرْتُمْ فَمَا اسْتَيْسَرَ مِنَ الْهَدْيِ

If you cannot; offer such sacrifice as you can afford (2:196)

Besides the above four, there are also the obligatory sacrifices related to any of the following: ‘ahd (pledge), nadhr (vow), yamin (oath). In what follows we shall discuss hady as one of the rites of Hajj.

For Whom is Hady Wajib?

The hady is not obligatory, by consensus of all the schools, upon one performing ‘Umrah mufradah, nor on one performing Hajj al‑'ifrad. Similarly, there is consensus regarding its being obligatory upon the non‑Makkan pilgrim on Hajj al‑tamattu’. The four Sunni schools add that it is also obligatory upon the pilgrim on Hajjal‑qiran.

According to the Imamiyyah, it is not obligatory on one on Hajj al‑qiran except with nadhr (vow), or when he brings along with him the sacrificial animal at the time of assuming ihram.

There is disagreement regarding whether the Makkan performing Hajj al‑tamattu’ must offer a sacrifice or not. According to the four Sunni schools, the hady is not wajib upon him. Al‑Mughni states that "there is no disagreement among scholars that the sacrifice of tamattu’ is not wajib on those living in the neighbourhood of al‑Masjid al‑Haram." The Imamiyyah say that if the Makkan performs Hajj al‑tamattu’ the hady is obligatory upon him." This is stated by al‑Jawahir where it says, "If the Makkan were to perform Hajj al‑tamattu; the hady is wajib upon him according to the widely held (mashhur) opinion [of the Imami fuqaha'].

The legal schools, however, agree that the obligatory hady is not one of the arkan of Hajj.

The Requirements of the Hady

The hady must meet the following requirements:

1. It must belong to cattle, such as camel, cow, sheep, or goat, by consensus of all the five schools. As stated by al‑Mughni, according to the Hanafi, the Maliki, the Shafi'i and the Hanbali schools: if a sheep, it must be at least six months; if a goat, of one year; if a cow, of two years; and if a camel of five years. This agrees with the Imamiyyah view as stated by al-Jawahir, with the difference that the camel must have entered its sixth and the goat its second year.

Al‑Sayyid al‑Hakim and al‑Sayyid al‑Khu'i have said that it suffices if the camel has entered its sixth and the cow or the goat its third. As to the sheep, they add, to be cautious, the sheep must have entered its second.

2. The sacrificial animal must be free of any defect, and, by consensus, must not be one‑eyed, lame, sick or old and decrepit. There is disagreement, however, regarding its acceptability in case of castration, being without horns or with broken ones, missing or mutilated ears or tail. Such are not acceptable according to al‑Sayyid al‑Hakim and al‑Sayyid al‑Khu'i, but acceptable according to the author of al‑Mughni.

Al‑‘Allamah al‑Hilli, in al‑Tadhkirah, says that female camel and cow and male sheep and goats are to be preferred, although the permissibility of the converse in the two cases is not disputed by any school. The author of al‑Mughni' says that the sex of the sacrificial animal is irrelevant.

The Time and the Place of the Sacrifice

As to the occasion of the sacrifice, it is, according to the Maliki, the Hanafi, and the Hanbali schools, the day of ‘Id and the two days following it. Abu Hanifah adds that this time is specific for the sacrificial rite of Hajj al‑qiran and tamattu; but for the others he sets no such time limit. The Malikis do not recognize any difference between various kinds of hady, as mentioned by al‑Fiqh ‘ala al‑madhahib al‑'arba’ah.

The Hanbalis say that if the sacrifice is made before its time, it must be made again. If after its time, in case of mustahabb the lapse of time cancels it; and in case of wajib it must be fulfilled. According to the Hanafis, slaughtering the sacrificial animal before the three days of ‘Id is not sufficient, but is if done later though a kaffarah is required for the delay. According to the Shafi’is, the time of the obligatory sacrifice for Hajj al‑tamattu’ starts with ihram; therefore, performing it earlier [than the day of ‘Id] is permissible, and there is no time limit for delaying, although it is best performed on the ‘Id day. (al‑Fiqh ‘ala al‑madhahib al‑'arba’ah)

The Imamiyyah regard niyyah as being obligatory in slaughtering (dhabh or nahr), and say that its time is on the day of ‘Id; although it is acceptable until the third day following it, or even until the end of Dhu al‑Hijjah, although the delay is a sin. The author of al‑Jawahir reports that there is no divergence [among Imami legists] on this point, even if the delay is without a [legitimate] excuse. It is not permissible, according to the Imamiyyah, to make the sacrifice before the 10th of Dhu al‑Hijjah.

As to the place, it is the Haram, according to the Hanbali, the Shafi'i, and the Hanafi schools, which includes Mina 2 and other places, as mentioned above while discussing ihram and the limits of the harams of Makkah and al‑Madinah.

According to the Imamiyyah, there are three conditions for slaughtering the hady in Mina:
(1) that the hady must have been brought in the ihram assumed for Hajj, not in the ihram for ‘Umrah;
(2) the pilgrim should have halted for some time of the night with the hady in ‘Arafat;
(3) he should have made the resolve to make the sacrifice on the day of ‘Id or the following day.

Also the Imamiyyah say that the pilgrim of Hajj al‑tamattu’ may make the sacrifice nowhere but in Mina, even if his Hajj is supererogatory. But the hady brought along in the ihram of ‘Umrah is to be slaughtered in Makkah. (al‑Tadhkirah)

In any case, for all the schools offering of the sacrifice is legitimate and preferable at Mina. Ibn Rushd says that the consensus of the ‘ulama' is in favour of slaughtering the hady at Mina. Secondly, the difference between the Imamiyyah and the other schools is that the Imamiyyah specify Mina, while others allow an open choice between Mina and other places inside the haram of Makkah.

The Flesh of the Hady

The Hanbalis and the Shafi'is say that the flesh of the hady whose slaughtering inside the haram is wajib is to be distributed among the poor inside it. The Hanafis and the Malikis say: it is permissible to distribute it inside or outside the haram. The Shafi'is say: one may not (oneself) eat the flesh of a wajib hady, but that of a voluntary or mustahabb hady is permissible. The Malikis say: with the exception of the sacrifice made as fidyah for hurting someone (adha), hunting, or sacrifice vowed (nadhr) specifically for the poor, and the voluntary hady which dies before reaching its destination; the flesh of the hady may be eaten in all cases. (al‑Mughni, al‑Fiqh ala al‑madhahib al‑'arba’ah, Fiqh al‑Sunnah)

The Imamiyyah say: a third of the flesh should be given to the poor believers; another third to other believers, even the well-off; and the remaining third may be consumed by the pilgrim. (al-Jawahir, al‑Sayyid al‑Hakim and al‑Sayyid al‑Khu'i in their books on the manasik of Hajj).

The Substitute Duty (al‑Badal)

All the legal schools agree that when the Hajj pilgrim cannot find the hady nor possesses means to acquire one, its substitute is to keep fasts for ten days, three of which for successive days, are to be kept during the Hajj days and the remaining seven on returning home. This is in accordance with the Divine verse: 3

فَمَنْ لَمْ يَجِدْ فَصِيَامُ ثَلَاثَةِ أَيَّامٍ فِي الْحَجِّ وَسَبْعَةٍ إِذَا رَجَعْتُمْ تِلْكَ عَشَرَةٌ كَامِلَةٌ

But if he lacks the means let him fast three days during the pilgrimage and seven when he has returned; that is ten days in all. (2:196)

The criterion of capacity to offer the hady is ability to arrange one in the place, and when it can't be done the duty of hady is changed into that of the fasts. This holds even if the pilgrim should be a man of means in his own homeland. This is because the obligation is specific to the occasion and so is the capacity to fulfil it. A similar case is that of availability of water for taharah.

Dhabh by a Wakil

It is preferable that the Hajj pilgrim should slaughter the hady himself, though it is permissible to ask someone else to do it, because it is one of the rites in which delegation is possible. The one deputed (wakil) makes the niyyah of slaughtering on behalf of the one who deputes, and it is better that both of them should make the niyyah together. According to the Imamiyyah it is mustahabb for the pilgrim to put his hand on that of him who slaughters or at least be present at the time of slaughtering.

Shaykh ‘Abd Allah al‑Mamqani, in Manahij al‑yaqin, writes: "If the wakil makes an error in mentioning the name of the one who appoints him, or forgets his name altogether, there is no harm in it." There is a good point here, for it is related from one of the Imams (‘a) that in a marriage ceremony the wakil made a mistake while mentioning the bride's name or mentioned some other name. The Imam (‘a) said, "It doesn't matter."

Qani’ and Mu’tarr

In regard to the verse 36 of the Surat al‑Hajj:

فَكُلُوا مِنْهَا وَأَطْعِمُوا الْقَانِعَ وَالْمُعْتَرَّ

and eat of their flesh and feed with it the qani 'and the mu’tarr (22:36)

al‑Imam al‑Sadiq (‘a) said, "The qani’ is the (poor) man who is content with what you give him and does not show his displeasure and does not frown or twitch his mouth in irritation. The mu’tarr is one who comes to you for charity and presents himself."

The Substitute for Camel Sacrifice

If the sacrifice of a camel is obligatory upon someone, through kaffarah or nadhr, and he cannot arrange it, he must sacrifice seven sheep one after another, and if that is not possible fast for 18 days. (al‑Tadhkirah)

Taqlid and Ish’ar

‘Taqlid; in this context, means putting a shoe or the like in the neck of the sacrificial animal. ‘Ish’ar' means making an incision in the right side of the hump of a camel or cow and letting it be stained by blood. The Sunni jurists regard ish’ar and taqlid as mustahabb except Abu Hanifah, who says that the taqlid of the sheep and the camel is sunnah, but ish'ar is by no means permissible due to the pain it causes to the animal. (al‑Mughni) We all favour kind treatment of the animals, and at the same time we are all Muslims. Islam has permitted the slaughtering of animals and even made it obligatory in case of hady, as Abu Hanifah also concedes by his act and verdict. In this light, ish'ar is more entitled to permissibility.

Charity to Non‑Muslims

Al‑Sayyid al‑Khu'i, in his book on the rites of Hajj, says, “The Hajj pilgrim giving something in charity (sadaqah) or gifting the meat of the slaughtered animal, may give the latter to anybody he wishes, even a non‑mu'min or a non‑Muslim.”

In general the Imamiyyah permit the giving of non‑wajib sadaqat or making of endowment (waqf) in favour of a Muslim or a non‑Muslim. Sayyid Abu al‑Hasan al‑'Isfahani, in his Wasilat al‑najat, says: "In giving of mustahabb sadaqah, poverty or possession of iman or islam is not a condition for the recipient. He may be a well‑to‑do man, a non‑'Imami, a Dhimmi, and a total stranger (not a blood relation of the giver of charity)." Al‑Sayyid al‑Kazim, in the appendices of al‑‘Urwat al‑wuthqa, permits giving of sadaqah even to a warring infidel (kafir harbi).

The Burning or Burying of Slaughtered Animals

It is a custom among Hajj pilgrims nowadays that they offer money to whoever would accept the hady4, which he on receiving either buries or throws away because the number of the slaughtered animals is great and nobody is around to make use of their meat.

Throughout whatever I have read I did not come across anyone who should raise a question about the permissibility or otherwise of this practice. In 1949 a group of Egyptian pilgrims asked the al‑'Azhar for a fatwa, asking the permission for giving the price of the hady as help to the needy.

In reply, al‑Shaykh Mahmud Shaltut, in Vol. 1, No.4 of the journal Risalat al‑'Islam which was issued by the Dar al‑Taqrib at Cairo, considered it obligatory to make the slaughter even if it should require burning or burial of the bodies of the slaughtered beasts.

I contested his opinion in a long article which appeared in two successive numbers of the above‑mentioned journal in the year 1950. When the Dar al‑‘Ilm li al‑Malayin, Beirut, wanted to bring out a new edition of my book al‑'Islam ma’a al‑hayat, I included it also with a title "Hal ta’abbadana al‑Shar’ bi al‑hadyfi hl yutrak fihi li‑al fasad?" ("Does the Shari'ah command us to make the sacrifice in order to rot?").

There, I have drawn the conclusion that the hady is obligatory only when one can find someone to eat it or where it is possible to preserve the meat through drying or canning. But when the sacrifice is solely carried out for destruction through burning or burying, its permissibility in the present conditions seems doubtful and questionable. Anyone who wishes to see the details of my argument may refer to the second edition of al‑'Islam ma’a al‑hayat.

Later I came across a tradition in al‑ Wasa'il which confirmed my position, and which the author had placed in the Book of udhiyyah (sacrifice) in a section entitled "Bab ta'akkud istihbab al‑'udhiyyah". The tradition reads:

عن الصادق عن أبائه عن رسول الله (ص) أنه قال:

"إنما جُعل هذا الأضحى لتشبع مساكينكم من اللحم فأطعموهم."

From al‑Sadiq (‘a), from his ancestors, from the Prophet (S), that he said:

"This sacrifice has been instituted to feed the poor among you with meat. So feed them."

Although this tradition is related particularly to voluntary sacrifice, it also throws light on the purpose behind al‑hady al‑wajib.

- 1. This is in agreement with the fatwas of al‑Hakim and al‑Khu'i.

- 2. The distance of Mina from Makkah is one parasang (approx. 4 miles).

- 3. It may be noted that whenever there is an explicit text of the Qur'an there is also agreement and consensus between the Islamic schools of fiqh and no difference between the Sunni s and the Shi`ah. The divergence of opinion between them arises either on account of the absence of nass (text), or its being synoptic (mujmal), or its weakness, or its contrariety with another text, or in its interpretation and application. This is a definite proof of the fact that all of them are derived from a single source.

- 4. Al‑Sayyid al‑Hakim says, "The duty to offer the hady in sadaqah does not remain if one cannot do it... and when the poor man would not accept it without money, it is not obligatory."

Between Makkah and Medina

As mentioned, the first rite in Mina on the 10th is ramy of Jamrat al‑‘Aqabah, after that the offering of hady, and then thirdly, halq or taqsir. We have already discussed the third under the head "Halq or Taqsir." We have referred to the rule about doing the halq or taqsir before the dhabh when discussing the order of the rites under the head "In Mina", where the reader will find its details.

When the pilgrim completes his rites in Mina on the day of ‘Id (such as ramy and dhabh), he returns to Makkah to perform the tawaf al‑ziyarah; then he offers its related rak'atayn and performs the sa’y between Safa and Marwah. According to the four Sunni schools, he returns to Mina after that tawaf and everything becomes permissible to him thereupon, even sex. According to the Imamiyyah, he has to perform another tawaf the tawaf al‑nisa', and offer its related rak'atayn. Sex does not become permissible to the pilgrim, from the Imamiyyah viewpoint, without this tawaf which we have already discussed in detail above.

The Night at Mina

After completing the tawaf, the pilgrim must return to Mina during what are called Layali al‑Tashriq, which are the nights of the llth, 12th, and 13th‑‑with the exception of him who being in a hurry departs after midday and before sunset on the 12th; there being nothing against him who leaves under these circumstances on the third day, in accordance with the verse:

فَمَنْ تَعَجَّلَ فِي يَوْمَيْنِ فَلَا إِثْمَ عَلَيْهِ

He that departs on the second day incurs no sin (2:203)

According to Abu Hanifah, to stay overnight in Mina is Sunnah not wajib. Those who consider it wajib agree that it is a rite and not a rukn. They disagree, however, regarding the necessity of kaffarah upon the defaulter. According to Ahmad ibn Hanbal, there is none; according to al‑Shafi’i, a mudd (al‑Tadhkirah, al‑Mughni, Fiqh al‑Sunnah); and according to Malikis, a sacrifice (al‑Zarqani's sharh of Malik's Muwatta').

According to the Irnamiyyah, "If one spends the night at a place other than Mina, there is nothing upon him if he spends it at Makkah praying all the night until morning; but if the night is spent there without prayer, or somewhere else, in prayer or otherwise, he must sacrifice a sheep, even if the default was on account of oversight or ignorance". (al‑Sayyid al‑Hakim's Manahij al‑nasikin).

There is no obligatory rite for the nights in Mina, though spending them in prayer and worship is mustahabb.

Ramy during the Ayyam al-Tashriq

The schools agree that there is no rite except ramy of the three jimar every day during the three days called ayyam al‑tashriq, regardless of whether the pilgrim is performing Hajj al‑tamattu; al‑'ifrad or al‑qiran. As to the number of pebbles and other things they have been mentioned under "Jamrat al‑‘Aqabah."

According to the Imamiyyah, the time of ramy on each of the three days extends from sunrise until sunset, midday being the preferable hour. The other schools say that it extends from midday until sunset, and if done earlier should be repeated. Abu Hanifah permits ramy before midday only on the third day. Ramy after sunset is permissible only for those with a [valid] excuse.

All the five schools are in consensus about the number of jimar and the way of performing the ramy on the three days. Below is the way of its performance as described by al‑Tadhkirah and al‑Mughni.

The pilgrim performs ramy on each of the three days by throwing 21 pebbles, seven in each of the three times. He begins at the first jamrah, al‑Jamrat al‑'Ula, which is the farthest of them from Makkah and nearer to Masjid al‑Khayf. It is mustahabb to toss the pebble in a fashion called hadhf1, from the left side standing at Batn al‑Masil, and to say takbir with every pebble that is thrown and to pray.

After that, he proceeds to the second jamrah, called al‑Jamrat al‑Wusta, halts at the left side of the way, and, facing the Qiblah, praises Allah and prays for blessings upon the Prophet (S), then moving ahead a little prays, and then throws the pebbles in the same way as above, then pauses and prays after the last pebble.

Then he moves on to the third point called Jamrat al‑‘Aqabah, and performs the rite of ramy as before, without any pause after finishing. With this the rites of ramy for the day are complete.2

The total number of pebbles thrown on the three days is 63 (that is, if one spends the night of the 13th in Mina), 21 each day.

With the seven thrown on the day of ‘Id the total number is 70.

The author of al‑Tadhkirah, after the above description, says that there is no difference of opinion about it. The author of al‑Mughni makes a similar remark, adding that Malik has opposed the raising of hands.

The description of the rites of ramy given by the author of al‑Mughni is similar if not exactly the same as the one given above by the author of al‑Tadhkirah.

All schools, except Abu Hanifah, agree about the order of the ramy of the jimar, and that if one of them is stoned out of turn, then it is obligatory to repeat the rite in the correct order. Abu Hanifah says that the order is not binding. (al‑Tadhkirah, al‑Mughni)

The ramy may be performed on foot or from a mount, though the former is better. It is permissible for one who has an excuse that someone else may perform it for him, and there is nothing upon one if he omits the takbir, the prayer or the pause after the second jamrah.

If the ramy is delayed by a day intentionally, or on account of ignorance or oversight, or is put over completely until the last day of Tashriq and is performed on a single day, the pilgrim does not incur a kaffarah according to the Shafi’is and the Malikis. Abu Hanifah says that if one, two, or three pebbles are delayed by a day, for every pebble delayed a poor man must be fed; if four are delayed by a day, a sacrifice becomes essential.

All the four schools are in consensus that if one does not perform the ramy at all until the days of Tashriq are past, he is not obliged to perform the rite later any time. But they disagree as to the related kaffarah, which, according to the Malikis is sacrifice regardless of some‑‑even one‑‑or all of the pebbles being omitted; according to the Hanafis the sacrifice is required for omitting all, and for fewer one must feed a poor man for every pebble omitted.

The kaffarah according to Shafi'is is a mudd of food for every pebble if two are omitted; for three a sacrifice becomes obligatory. (Ibn Rushd's Bidayah, al‑Mughni)

The Imamiyyah say, if the ramy of one or more jimar is forgotten, the rite must be performed during the days of Tashriq; but if forgotten altogether until one reaches Makkah, the pilgrim is obliged to return to Mina to perform them if the days of Tashriq are not past; otherwise he must perform the rite himself the following year, or depute another to perform it; in any case there is no kaffarah upon him. (al‑Tadhkirah) This agrees with the fatawa of al‑Sayyid al‑Hakim and al‑Sayyid al‑Khu'i, with the difference that the former regards the legal grounds in favour of the obligation of completion of the rite as stronger (aqwa), whereas the latter considers it as dictated by caution (ahwat), and both agree that intentional omission of ramy does not invalidate the Hajj.

We referred earlier to the consensus of all the schools that it is sufficient for the Hajj pilgrim to remain for only two days of Tashriq in Mina and that he may depart before the sunset on 12th; if he remains until sunset, it is obligatory upon him to stay overnight and perform the rite of ramy on the 13th. The Imdmiyyah, however, say that the permissibility of leaving on the 12th is only for one who has not violated the prohibition on hunting and sex in the state of ihram; otherwise he is obliged to remain in Mina on the night of the 13th.

Offering salat in the Masjid al‑Khayf at Mina is mustahabb, so also on the hill called Khayf. (al‑Tadhkirah)

On returning to Makkah after the rites of Mina, it is, according to Imamis and Malikis, mustahabb to perform the tawaf al‑wada; which, according to Hanafis and Hanbalis, is wajib for non‑Makkans and those who do not wish to stay on in Makkah after returning from Mina. There is no tawaf al‑wada; nor any fidyah, for women who enter their periods before the departure, even from the viewpoint of those who consider the tawaf as obligatory; however, it is mustahabb for her to bid farewell to the House from the door nearest to it and without entering al‑Masjid al‑Haram.

Here we conclude the discussion about the rites of Hajj.

- 1. Hadhf means a certain way of tossing in which the pebble is held under the thumb and tossed by the back of the index finger.

- 2. Al‑Sayyid al‑Hakim says that it is desirable that the third ramy should be done with one's back toward the Qiblah. According to al‑Mughni it should be done facing the Ka'bah.

The Dhu al-Hijjah Moon

It happens often that the Dhu al‑Hijjah new moon is established for a non‑Imami scholar, and he declares its sighting, and the authorities of al‑Haramayn al‑Sharifayn make it compulsory for all pilgrims to follow his ruling, regardless of whether the new moon has been established for an Imami mujtahid or not. In such a case, what is an Imami pilgrim to do about the wuquf in ‘Arafat and other rites related to specific dates and times if he cannot act according to his own school of fiqh? Is his Hajj invalid if he makes the halt with others, performing all the rites simultaneously with them?

Al‑Sayyid al‑ Hakim, in his Manahij al‑hajj (1381 H.), p. 91, says: "When the non‑Imami authority (hakim) rules that the new moon has been sighted, so that the halt in ‘Arafat takes place on the 8th of Dhu al‑Hijjah and the halt in the Mash'ar on the 9th, then on the principle of taqiyyah, or the fear of being harmed, the halt with others is valid and relieves one of the duty. The same holds in case of a na'ib undertaking Hajj on another's behalf or one on a mustahabb Hajj of oneself or that of another. Also, there is no difference with respect to fulfilment of the duty whether he knows or not that the ruling (of the non‑Imami hakim) is contrary to the reality."

Al‑Sayyid al‑Khu'i in Manasik al‑hajj (1380 H.), p. 80, says: "When the new moon is established for a non‑Imami qadi and he rules that it has been sighted, but the sighting of the new moon is not established for the Shi’ah ‘ulama', to follow others in making the halt is obligatory and satisfactory of the Hajj duty if there is a probability of the ruling being correct. One who acts contrary to the dictates of taqiyyah and the possibility of being harmed, thinking that legal caution lies in acting contrary to them, has committed something forbidden and his Hajj is invalid.”1

There is no doubt that God desires ease not hardship for His servants, and there is hardship in repeating the Hajj another time, even for one who has the means to undertake it more than once. But what should a poor man do who returns the next year to find the same thing to have occurred again? Should he keep on repeating the pilgrimage, two, three, or four times... until it coincides with the ruling of his school? May God's peace and benedictions be upon Amir al‑Mu'minin, the Sayyid al‑Wasiyyin, who said:

إن الله كلّف يسيراً ، ولم يُكلف عسيراً ، وأعطى على القليل كثيراً.

God has assigned duties which are easy to fulfil not difficult to cope with; and He rewards much for little.

Besides, we know that such kind of things happened during the era of the Infallible Imams (‘a) and not one of them is known to have commanded the Shi’ah to repeat the Hajj. It is on this basis that al‑Sayyid al‑Hakim, in Dalil al‑nasikin, says, "To fall in with the ruling of the non‑Imami qadi is permissible; this is in accordance with definitive practice from the times of the Imams (‘a), which has been to follow them (i.e. the non‑Imamis) in the halt (at ‘Arafat), and no other alternative has ever been suggested."

However, al‑Sayyid al‑Shahrudi, in his Manasik al‑hajj, says, "It is permissible to follow, in regard to this question, the fatwa of the absolute mujtahid (al‑mujtahid al‑mutlaq) who considers it permissible." To tell the truth, to me this kind of thing is not digestible when coming from a mujtahid mutlaq, although I have read and heard such things from more than one mujtahid whom the common people follow.

Because, a mujtahid mutlaq in his fatwas should either take an affirmative or a negative stand, and if he doesn't, has no right to be a legal authority (for taqlid). Someone may say that it is not a condition for being mujtahid mutlaq that he should never abstain from giving a definitive fatwa or give up caution (ihtiyat) in some matter, for ‘caution is the path of salvation' (al‑'ihtiyat sabil al‑najat). In answer I would say, this is an obvious fallacy.

Because, ihtiyat in a matter is something, and giving a fatwa to consult someone else is another matter. In fact when the mujtahid sees the necessity of ihtiyat in a matter, he does not give a fatwa upon it—as is the practice of legal authorities regarding several issues?

Here we affirm al‑Hakim's position, because we understand from the necessary grounds for taqiyyah that the 9th is a requirement for wuquf in 'Arafat when that requirement can be satisfied in presence of security and absence of any fear of harm. But in case of insecurity and fear this condition does not stand, exactly like the requirement for sajdah (prostration) in salat that it should be made on something which is not edible or wearable (ghayr al‑ma'kul wa al‑malbus)—a requirement which applies to conditions when security is present and which falls in case of insecurity and fear.

- 1. Our teacher al‑Sayyid al‑Khu'i makes the absence of knowledge (that the fatwa of the non‑Imami authority about the sighting of the new moon is contrary to fact) a condition for the Hajj being satisfactory of the duty. But al‑Sayyid al‑Hakim considers the knowledge of its contradiction with reality or absence of such knowledge indifferent to the Hajj (performed on the basis of the non‑Imami faqih's declaration) being satisfactory of the duty. Here we affirm al‑Hakim's position, because we understand from the necessary grounds for taqiyyah that the 9th is a requirement for wuquf in 'Arafat when that requirement can be satisfied in presence of security and absence of any fear of harm. But in case of insecurity and fear this condition does not stand, exactly like the requirement for sajdah (prostration) in salat that it should be made on something which is not edible or wearable (ghayr al‑ma'kul wa al‑malbus)—a requirement which applies to conditions when security is present and which falls in case of insecurity and fear.

Ziyarah of the Greatest Prophet (S)

The ziyarah of the Greatest Prophet‑ may Allah's peace and benedictions be upon him and his Family‑ is a highly mustahabb duty. He is reported to have said, "Whoever visits my grave after my death is like one who has migrated with me in my life." He also said, "A salat in my mosque is like a thousand ones offered elsewhere with the exception of al‑Masjid al‑Haram, as to which a salat there is equal to a thousand in my mosque." It is emphasized that the mustahabb salat in the Prophet's Mosque should be offered between his tomb and the minbar, where, a tradition says, is a ‘garden of the gardens of Paradise.'

To visit all other mosques of al‑Madinah, like Masjid Quba, Mashrabat Umm Ibrahim, Masjid al‑'Ahzab, etc. and also the graves of the martyrs, in particular that of Hamzah (‘a) at Uhud, is also mustahabb. Also mustahabb is paying visit to the tombs of the Imams (‘a) buried in al‑Baqi’, viz., al‑'Imam al‑Hasan, al‑Imam Zayn al‑‘Abidin, al‑Imam al‑Baqir, and al‑'Imam al‑Sadiq, who upon whom all be peace and best of blessings.

As to the ziyarah of Fatimah (‘a), the mother of al‑Hasan and al‑Husayn, it is as important as that of her father, of whom she is a part (bidha'ah). There are several reports about the location of her honoured tomb, of which the most probable seems to be the one according to which she was buried in her house adjacent to her father's mosque. When the mosque was extended by the Umayyads, the grave also came to be included inside it. This is what Ibn Babawayh (al‑Shaykh al‑Saduq) believed. We think this is highly probable, because it agrees closely with the tradition that her grave is in a garden between the grave (of the Prophet) and the minbar. Allah alone has knowledge of everything.

History of al-Haramayn al-Sharifayn

The Ka’bah

‘It is the first temple ever to be built for men, a blessed place a beacon for the nations' (3:96) and the most ancient of them in the Middle East. It was first built by Ibrahim, the ancestor of the prophets, and Isma'il, his son, and the Qur'an quotes them praying as they raised its walls:

وَإِذْ يَرْفَعُ إِبْرَاهِيمُ الْقَوَاعِدَ مِنَ الْبَيْتِ وَإِسْمَاعِيلُ رَبَّنَا تَقَبَّلْ مِنَّا إِنَّكَ أَنْتَ السَّمِيعُ الْعَلِيمُ

And when Ibrahim and Isma'il raised up the foundations of the House ( and dedicated it, saying): ‘Our Lord, accept this from us; Thou hear all and know all'. (2:127)

Isma'il gathered the stones and Ibrahim put them on one another until the walls were raised to the height of a man. Then the Black Stone was put in its place. According to tradition, the Ka'bah (al‑Bayt al‑Atiq) was nine cubits high and had an area of twenty by thirty cubits when Ibrahim (‘a) built it. It had two doors, but was without a roof.

As to the Black Stone, it is said to have been brought by Gabriel from heaven. It is also said that Adam brought it along with him on his descent from Paradise, that at first it was snow‑white and was blackened by the deeds of men, and so on. There is no harm in not believing any of these stories and the like, nor are we obliged to establish their verity, nor to know the origin of the Stone. All we are obliged to do is to revere it because the Prophet (S) considered it sacred and revered it. If someone asks the secret behind the Prophet's regarding this stone as sacred, all we can say is that only God and His Apostle know best.

According to some traditions the Ka'bah stood as Ibrahim and Isma’il had built it until it was rebuilt by Qusayy ibn Kilab, the fifth ancestor of the Prophet (S). The structure built by Qusayy stood until the time when the Prophet was 35 years old, when a great flood demolished its walls. The Quraysh rebuilt it. When the walls were raised to a man's height the clans disputed as to who should receive the honour of lifting the Black Stone into its place. They almost came to war with one another, if it was not for their making Muhammad the arbiter amongst themselves.

The Prophet's solution was to spread a cloak on the ground. Then taking up the Black Stone he laid it on the middle of the garment. "Let the eldest of each clan take hold of the border of the cloak," he said. "Then lift it up, all of you together." When they had raised it to the right height, he took the Stone and placed it in the corner with his own hands.

May God's benedictions and His mercy be upon you, O Apostle of God! You raised the Stone first with your noble hands from the ground and then put it into its place again with your hands. Thus you made God and man well pleased with you. This event was a definite evidence of your superiority over all, and of your being a ‘mercy for all the worlds', before your declaration of the apostlehood as after it. Your act was a clear sign that you were the bearer of a Divine mission, and that those who rejected you were enemies and opponents of the truth and of humanity.

The Ka'bah remained in its condition until Yazid ibn Mu'awiyah became caliph and till ‘Abd Allah ibn al‑Zubayr challenged his sovereignty over the Hijaz. Yazid's forces installed catapults on the hills around Makkah and bombarded the Ka'bah with tens of thousands of stones. The Ka'bah caught fire which finally demolished its structure. Ibn al‑Zubayr repaired it as it was before without making any changes, and he put a wooden fence around it. When ‘Abd al‑Malik ibn Marwan came to power, Ibn al‑Zubayr was besieged by his forces under al‑Hajjaj ibn Yusuf, who ultimately killed Ibn al‑Zubayr after causing damage to a part of the Ka'bah. Al‑Hajjaj rebuilt the demolished portions and made some changes in the walls as they used to be, and also had one of its doors (the ‘western door') blocked.

The Ka'bah remained in the altered condition after al‑Hajjaj's repairs until the year 1040/1630 when its walls collapsed due to heavy rains. Thereafter the Muslims from every corner gathered together to restore it and collected contributions from various regions of the Muslim world to rebuild it in the form as it stands to this day.

The Prophet's Mosque

When the Prophet came to al‑Madinah after the migration, the first thing that he built there was the mosque. Afterwards he built the houses by its side. At first its area was 30 by 35 metres, which the Prophet (S) extended, making it 57 by 50 metres.

There was no minbar in the mosque at the time of its making. The Prophet (S) used to deliver his sermons leaning against one of the pillars, which were made of trunks of date‑palms. Later, the Companions built a wooden minbar with two steps. ‘Umar ibn al‑Khattab, during his reign, extended the mosque by five metres on southern and western sides and fifteen on the northern. He left untouched the eastern side where the dwellings of the Prophet's wives were situated.

‘Uthman ibn ‘Affan demolished the mosque and rebuilt it, extending it in area by an amount almost equal to the one before by ‘Umar and left the houses of the Prophet's wives untouched. The building remained as ‘Uthman had made it until al‑Walid ibn ‘Abd al‑Malik demolished it again and extended it on all sides, and including even the houses of the Prophet's wives, together with that of ‘A'ishah, thus making the Prophet's tomb a part of the mosque.

The building constructed by al‑Walid stood until 266/879 when al‑Mahdi, the ‘Abbasid caliph, greatly extended its northern side. The building endured until the year 654/1256 when a fire broke out bringing down the roof and burning doors and the Prophet's minbar. The Mamluk sultan al‑Zahir rukn al‑Din Baybars I (658‑676/1260‑1277) ordered its reconstruction and the mosque was restored to its original form before the fire.

In 886/1481, lightning struck the mosque destroying all the building except the chamber of the Prophet's tomb and a dome in the mosque's courtyard. It was rebuilt by the Mamluk king al‑'Ashraf Sayf al‑Din Qait Bay (872‑901/1467‑95) in a fashion better than before. In the 10th/16th century the Ottoman sultan Salim had it renovated, building the mihrab (niche) on the western side of the minbar and which is still there.

In the 13th/19th century the Ottoman sultan Mahmud II (1223‑1255/1808‑1839) had the green dome constructed. During the same century the mosque again needed repairs, which were carried out by the orders of the Ottoman sultan. This time, the engineers dismantled the old building little by little gradually building in its place the new structure which was completed in 1277/1861.

و صل اللهم على محمد و اهله الطاهرين و عرف بيننا و بينهم, و ارزقنا شفاعتهم يوم نلقاك,

يا مبدل السيئات بأضعافها من الحسنات... انك ذو الفضل العظيم

Part 2: Personal Law

6. Marriage

The Marriage Contract and its Conditions

All the five schools of fiqh concur that marriage is performed by the recital of a marriage contract which contains an offer made by the bride or her deputy (na'ib), such as her guardian or agent (wakil), and a corresponding acceptance by the groom or his deputy. A mere agreement without the recital of the contract does not amount to marriage.

The schools also agree that a marriage contract is valid when recited by the bride or her deputy by employing the words, ankahtu or zawwajtu (both meaning. I gave in marriage) and accepted by the groom or his deputy with the words, 'qabiltu' (I have accepted) or 'raditu' (I have agreed).

The schools of fiqh differ regarding the validity of the contract when not recited in the past tense or recited by using words other than those derived from the roots al-zawaj and al-nikah, such as, al-hibah and al-bay'.

The Hanafi’s say: A marriage contract is valid if recited by any word conveying the intention of marriage, even if the words belong to the roots al-tamlik, al-hibah, al-bay', al-'ata, al-'ibahah and al-'ihlal, provided these words indicate their being used for the purpose of marriage. But the contract will not conclude if the word used are derived from al-'ijarah (hiring) and al-'i'arah (lending), because these words do not convey the meaning of perpetuity and continuity.

They have based their argument on this narration from the Sahih al-Bukhari and the Sahih Muslim. A woman came to the Prophet (S) and said: "O Apostle of Allah. I have come to offer myself to you." On hearing this, the Prophet (S) lowered his head and did not reply. Then one of those present said: "If you do not want her marry her to me." The Prophet (S) asked him: "Have you anything?" He replied, "By God. I have nothing." Again the Prophet asked him. "Have you any knowledge of the Qur'an?" He replied regarding the extent of his knowledge of the Qur'an. Then the Prophet said. "I make her your property in exchange for your knowledge of the Qur'an" (using the word mallaktul)1.

The Maliki’s and the Hanbali’s say: The contract is valid if recited by using the words al-nikah and al-zawai or their derivatives and is also valid when the word used is al-hibah, with the condition that the amount payable as dower (mahr or sidaq) is also mentioned. Words other than these cannot be used. They have based their argument for the use of the word al-hibah on this verse of the Qur'an (see Abu Zuhrah. al-'Ahwal al-shakhsiyyah [1948] p. 36):

وَامْرَأَةً مُؤْمِنَةً إِنْ وَهَبَتْ نَفْسَهَا لِلنَّبِيِّ إِنْ أَرَادَ النَّبِيُّ أَنْ يَسْتَنْكِحَهَا

...And a believing woman if she gave (wahabat, derived from al-hibah) herself to the Prophet, if the Prophet desired to marry her... (33:50)

The Shafi'i scholars consider it wajib that the words used in the contract should be either the derivatives of the root al-zawaj or that of al-nikah.

The Imamiyyah say: It is wajib that the offer be made by using the words ankahtu and zawwajtu in the past tense. The marriage is not concluded if the word used is not in the past tense and does not belong to the roots al-zawaj and al-nikah, because these two roots conventionally convey the meaning of marriage and the past tense conveys the meaning of certainty and also because the Qur'an testifies their use:

فَلَمَّا قَضَىٰ زَيْدٌ مِنْهَا وَطَرًا زَوَّجْنَاكَهَا

أُرِيدُ أَنْ أُنْكِحَكَ

(33:37 ,28:27).

Apart from -this, the absence of consensus invalidates the use of words other than these in such a contract. For acceptance, according to them, the word qabiltu or raitu can be used.

The Imamiyyah, the Shafi'i and the Hanbali schools mention 'immediacy' as a condition for a marriage contract. By immediacy they mean the acceptance of the offer without any delay. The Malikis consider a minor delay inconsequential, such as a delay caused due to the recital of a short sermon or the like of it. The Hanafi school is of the opinion that immediacy is not necessary.

Even if a man addresses a letter to a woman conveying his proposal of marrying her and the woman gathers witnesses and reads out the letter to them and says. "I marry myself to him," the marriage is performed (al-Fiqh 'ala al-madhahib al-'arbiah, vol. 4. the discussion regarding conditions of marriage; al-'Abwal al-shakhsiyyah by Muhammad Muhy al-Din 'Abd al-Hamid).

All the schools concur that the contract can be recited in any language when it is impossible to recite it in Arabic but differ as regards the validity of the contract when so recited despite the possibility of its being recited in Arabic. The Hanafi, the Maliki and the Hanbali schools consider this as valid. The Shafi'i and the Imamiyyah Schools consider it as invalid. (Abu Zuhrah. al-'Ahwal al-shakhsiyyah. p. 27)

The Imamiyyah, the Hanbali and the Shafi'i schools consider a contract in writing as invalid. The Hanafi school is of the opinion that a written contract is valid provided the bride and the groom are not present together at the place of contract. The schools concur that a dumb person can convey his intention to marry by signs in case he is incapable of expressing it in writing. If he can express it in writing, it is better for him to combine both, writing and signs. in conveying his intention.

According to the Hanbali and the Hanafi schools, if a clause is included in the contract giving a choice to the bride and the groom to annul the contract. The contract is valid but the condition is void. The Maliki school is of the opinion that, if the marriage is not consummated, this condition as well as the contract are both void. But if the marriage has been consummated, the condition is void, not the contract. The Imamiyyah and the Shafi'i schools have declared both the contract and the condition as void irrespective of whether the marriage has been consummated or not.2 (al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 4; al-Tadhkirah by al-'Allamah al-Hilli, vol. 2; and al-Masalik by al-Shahid al-Thani, vol. 2J)

As a matter of course, the offer is made by the bride and is accepted by the groom. The bride says, 'zawwa jtuka' (I have married myself to you) and the groom accepts by saying, 'qabiltu' (I have accepted). The question which now arises is, is the contract valid when the acceptance precedes the offer and the groom addresses the guardian of the bride saying, 'zawwijnihu ' (marry her to me) and the guardian replies, 'zawwa jtukahu ' (I have married her to you)? The Hanbali school considers it as invalid while the other schools concur on its validity (al-Tadhkirah by al-'Allamah al-Hilli, vol. 2). Al-'Allamah al-Hilli, an Imamiyyah scholar, in his book al-Tadhkirah, says, "A marriage contract cannot be made contingent on a future event because certainty is one of its conditions. If a condition is included prescribing a certain time or a certain quality, such as, when the offer is made with the condition that the marriage will conclude at the beginning of the forthcoming month and this offer is accepted, the contract is not valid. Al-Shafi'i is of the same opinion."

Abu Zuhrah, a Hanafi scholar, writes m his book al-'Ahwal al-shakhsiyyah: “A marriage should be concluded on the recital of the contract, because marriage is a contract and the consequences of the contract cannot be delayed after its conclusion. Therefore it is not possible to postpone the consequences of a contract till the fulfillment of a future condition”. In the book A'lam al-muqlin, Imam Ahmad has been referred to as validating a conditional contract of marriage.

A Subsidiary Issue

Al-Fiqh 'ala al-madhahib al-'arba'ah, quoting Hanafi and Shafi'i scholars, states: If an illiterate person mispronounces the word 'zawwaitu' and says instead, ''zawwajtu," the contract is valid. Al-Sayyid Abu al-Hasan al-'Isfahani, an Imamiyyah scholar, in his Wasilat al-najat, gives a similar fatwa.

Witnesses

The Shafi'i, the Hanafi and the Hanbali schools concur that the presence of witnesses is a necessary condition for a valid contract. The Hanafi school considers as sufficient the presence of two men or a man and two women. However, if all the witnesses are women, the contract is not valid. This school does not consider ‘adalah’ (justice) as a condition for the acceptability of the witnesses. The Shafi’i and the Hanbali schools consider as necessary the presence of two male Muslim witnesses possessing the quality of ‘adallah’.

According to the Malikis, the presence of witnesses is not necessary at the time of the contract but their presence is necessary at the time when marriage is to be consummated. Therefore, if the contract is recited without the presence of witnesses, it is valid. But, when the groom intends to consummate the marriage it is incumbent upon him to have two witnesses. If the marriage is consummated without the witnesses, the contract becomes void compulsorily, and this is considered as amounting to an irrevocable divorce. (Bidayat al-mujtahid by Ibn Rushd: Maqsad al-nabih by Ibn Jamii'ah al-Shafi’i)

The Imamiyyah do not consider the presence of witnesses as wajib but only mustababb.3

- 1. The Imamiyyah have narrated this tradition with different words. According to their version: A woman came to the Prophet (S) and said, '"Get me married." The Prophet then announced, "Who is ready to marry her?" One of those present stood up and said, “I”. The Prophet (S) then asked him, "What can you give her?" He replied, "I have nothing." The Prophet said, "No." The woman repeated her request and the Prophet (S) repeated the announcement but none stood up except the same man. The woman again repeated her request and the Prophet (S) announced again. Then the Prophet (S) asked him, "Do you have any good knowledge of the Qur'an?" He replied, "Yes. I do." The Prophet (S) then said, "I marry her to you (zawwajtukaha) in exchange for your teaching her what you know well of the Qur"an." Therefore, the word used was al-zawaj, not al-milk.

- 2. This is the view of most of the Imamiyyah scholars. But some of them, such as Ibn Idris among the early legists, and al-Sayyid Abu al-Hasan al-'Isfahani among the recent ones are of the opinion that the contract is valid and the condition is void. Accordingly, the Imamiyyah scholars in both their views are on the whole like the scholars of the other schools.

- 3. Dr. Muhammad Yusuf Musa, in his book al-Ahwal al-shakhsiyyah (1958) page 74, states: "The Shi'ah consider the presence of witnesses as necessary for marriage." He considers the Shi'ah and the Hanafi, the Shafi'i and the Hanbali schools to hold a common view. But there is no source of reference for what he states.

Capacity to Enter into a Marriage Contract

All the schools agree that sanity and adulthood (bulugh) are necessary qualities for both the parties to the contract, unless the contract is concluded by the guardian of any of them. The contract with the guardian shall be discussed later. The schools also agree that there should be no obstacle to marriage between the man and the woman such as consanguinity or any other disabling factor of a permanent or temporary character. We will discuss the legal obstacles to marriage in a separate chapter.

The schools also consider the ascertainment of both the parties to the contract as necessary. Therefore, when it is said. "I marry you to one of these two daughters." or "I marry myself to one of these two men." the contract will not be valid.

All the school except the Hanafi consider free consent as a sine qua non without which the contract does not conclude. The Hanafis are of the opinion that the contract is concluded even if coercion is present (al-Fiqh 'ala al-madhahib al-'arbdah). Al-Shaykh Murtada, al-'Ansari, an Imamiyyah scholar, after mentioning free consent as a condition, writes: "That which is commonly held by the Imamiyyah scholars of the latter period is that, when a person coerced consent freely later on, the contract is valid. In the book al-Hada'iq wa al-riyad their consensus has been reported on this issue." Al-Sayyid Abu al-Ha'san al-'Isfahani, an Imamiyyah legist, in his al-Wasilah in the chapter on marriage, writes: "Free consent of both the parties is a necessary condition for a valid contract. If both of them or any of them is coerced, the contract is invalid. But if the party coerced consents later, the reason in favor of the validity of the contract seems strong." According to the above-mentioned criterion, if the man or the woman pleads coercion and then willingly live together like a married couple and show the happiness of a newly married bride and groom, or if the woman takes the mahr or does any other act proving consent, the claim of coercion will be rejected and no other evidence will be accepted contradicting the consent.

According to the four school of fiqh, a contract recited in jest concludes the marriage. Therefore, when a woman says jokingly. “I marry myself to you” and the man accepts it in a similar fashion, the contract is concluded. Divorce and the freeing of a slave also conclude if recited in jest according to the tradition:

ثلاث جدهن جد وهزلهن جد: الزواج والطلاق والعتق

The three whose intentional and jestful (recital) is considered intentional are: marriage, divorce and freeing of a slave.

The Imamiyyah school considers all contracts involving jest as null and void due to the absence of the will to contract and as regards the above-mentioned tradition, they consider the narrators as unreliable.

The Hanafi and the Hanbali schools regard the marriage of an idiot as valid irrespective of whether the guardian has given permission or not. The permission of the guardian is necessary in the view of the Imamiyyah and the Shafi’i schools.

According to the Imamiyyah and the Hanafi schools, the consent given when the two conditions of sanity and adulthood (bulugh) are present concludes the marriage as per the authority of the tradition.

إفرار العقلاء على أنفسهم جائز

The consent of sane persons even if detrimental to their interest, is valid.

Al-Shafi’i, in the latter of his two views, considers the marriage as established when the bride being a sane adult acknowledges the marriage and the husband confirms her acknowledgement, because marriage is the right of both the parties. Malik recognizes a difference here. According to him, when the bride and the groom are in a foreign land their acknowledgement establishes the marriage; but when they are in their hometown they will have to furnish a proof of their marriage because it i convenient for them to do so. This was the former view of al-Shafi’i. (al-Tadhkirah by al- Allamah al-Hilli)

Bulugh

There is consensus among the schools that menses and pregnancy are the proofs of female adulthood. Pregnancy is a proof because a child comes into being as a result of the uniting of the sperm with the ovum: and menses, because, like the production of sperm in male, is a mark of female puberty. All schools, except the Hanafi, consider the growth of pubic hair as a sign of adulthood, but the Hanafis consider them no different from other hair of the body. According to the Shafi’i and the Hanbali schools, the adulthood of both the sexes is established on their completing fifteen years. According to the Malikis, it seventeen years for both the sexes. The Hanafis consider eighteen years for a boy and seventeen years for a girl a the age of maturity (Ibn Qudamah, al-Mughni, Bab al-Hijr. vol. 4). The Imamiyyah have mentioned fifteen years for a boy and nine years for a girl as the age of maturity on the authority of the following tradition narrated by Ibn Sinan:

إذا بلغت الجارية تسع سنين دفع إليها مالها وجاز أمرها وأقيمت الحدود التامة لها وعليها.

When a girl reaches the age of nine her property will he returned to her and it will be rightful for her to handle her own affairs, and the hudud are applied against her and in her favor.

Experience also proves that a girl can conceive at the age of nine, and the ability to conceive is equivalent to conception in all aspects.

Note: That which the Hanafis have said regarding the age of maturity is the maximum age limit for maturity. The minimum age limit according to them is twelve years and nine years for a boy and a girl respectively: because at this age it is possible for a boy to ejaculate and to impregnate, and for a girl to have orgasm. to menstruate, and to conceive (Ibn 'Abidin [1326 H.] Bab al-hijr, vol. 5, p. 100).

Stipulation of Conditions by the Wife

The Hanbali school is of the opinion that if the husband stipulates at the time of marriage that he will not make her leave her home or city, or will not take her along on journey or that he will not take yet another wife, the condition and the contract are both valid and it is compulsory that they be fulfilled, and in the event of their being violated, she can dissolve the marriage. The Hanafi, the Shafi’i and the Maliki schools regard the conditions as void and the contract as valid, and the Hanafi and the Shafi’i schools consider it compulsory in such a situation that the wife be given a suitable mahr, not the mahr mentioned (Ibn Qudamah. al-Mughni. vol. 6. chapter on marriage).

According to the Hanafi school, when the man puts the condition that the woman would have the right to divorce, such as when he says. ''I marry you on the condition that you can divorce yourself," the condition is invalid. But if the woman makes such a condition and says to the man, "I marry myself to you on the condition that I shall have the right to divorce," and the man says in reply. "I accept." the contract and the condition are both valid and the woman can divorce herself whenever she desires.

According to the Imamiyyah school, if at the time of contract, the woman stipulates such conditions as that the man shall not take another wife, or shall not divorce her. or shall not prohibit her from leaving home whenever she wants and wherever she wants to go, or that the right to divorce will be hers, or that he shall not inherit her, or any other such condition which is against the spirit of the contract, the condition will be considered void and the contract will be valid.1 But if she lays down such conditions as that the man will not make her leave her city, or will keep her in a specific home, or will not take her along on journeys, the contract and the condition are both valid. But if any of these conditions are not met, she does not have the right to dissolve the marriage.

However, if in such a situation the woman refuses to accompany him, she still enjoys all the rights of a wife, such as being provided with maintenance and the like of it.2 When the wife pleads of having included a valid condition in the contract and the husband repudiates the inclusion of such a condition, the wife will have to furnish evidence, because she has pleaded this extra condition. On the wife being unable to furnish the evidence, the husband will take an oath regarding the non-inclusion of the condition because he is the one who negates it.

- 1. According to the Imamiyyah, an invalid condition in a non-marriage contract results in the contract becoming void. But in a contract of marriage such a condition does not cause the contract nor the mahr to be void unless a choice is given regarding the voiding of the contract or a condition is laid that none of the consequences of the contract will follow, which is against the spirit of the contract. They have argued on the basis of reliable traditions that there is a difference between a marriage contract and other forms of contract.
Some of the legists have said: "The secret of this difference is that marriage is not an exchange in the true sense of the word as in the case of other forms of contract." The Imamiyyah scholars have extensive discussions on these conditions the like of which are not found in books of other schools. Those who want further information regarding these conditions may refer to al-Makasib of Shaykh Murtada al-'Ansari and Taqrirat al-Na'ini of al-Khwansar i, vol. 2, and the third part of Fiqh al- Imam al-Sadiq by this author.

- 2. In Farq al-zawaj of Ustadh 'Ali al-Khafif. it is stated that the Imamiyyah consider these kind of conditions as void. This is a mistake which has been caused as a result of confusing these kind of conditions with those which negate the spirit of the contract.

Claim of Marriage

If a man claims having married a woman and she repudiates the claim, or the woman claims so and the man repudiates it, the burden of proof will lie on the claimant and the party negating the claim will take an oath.

The schools concur regarding an acceptable proof that it requires the testimony of two just men. The evidence of women alone or along with a man is not acceptable except to the Hanafi school which considers the evidence of a just man and two just women as acceptable. Therefore, the 'adalah of witnesses is necessary according to the Hanafi school, at the time of establishing the fact of manage when any of the parties negates or contends it, but not a condition at the time of conclusion of the marriage contract.

The Hanafi and the Imamiyyah schools consider the testimony of a witness as sufficient without his mentioning any conditions and details of the marriage. But the Hanbali school considers it necessary that the witness describe the conditions of marriage because there is a divergence of opinion regarding the conditions and it is possible for a witness to believe in the validity of a marriage whereas it may have been actually invalid.

The Imamiyyah, the Hanafi, the Shafi'i and the Hanbali schools regard a marriage as proved even if a few people have knowledge of it and it is not necessary that it be commonly known.

Does the Living Together of a Couple Prove Marriage?

From time to time claims of marriage are brought before Shari'ah courts and often the claimant brings witnesses to prove their living together and having a common residence in the manner of a husband and wife. The question now is, does this prove marriage or not?

On the face of it, it can be said that marriage is prima facie considered as established unless the contrary is proved. This means that the living together of a man and woman apparently establishes marriage, and this conclusion compels the acceptance of the claimant's contention unless he is proved to lie. Apart from this, to decide the contention of the claimant claiming marriage as a lie is very difficult on the basis of the Imamiyyah view which considers the presence of witnesses as not necessary at the time of marriage. But this prima facie conclusion in favor of the claimant is contrary to the general rule according to which every event-marriage or something else-whose occurrence is doubtful is assumed not to have occurred unless there is evidence to the contrary.

Accordingly, the stand of the respondent, repudiating the claim of marriage, becomes congruent with the general rule. Therefore, the proof of marriage will be demanded from the claimant, and in the event of his failure to do so the respondent will take an oath and the claim will be dismissed.

This way of settling a claim is the right approach which corresponds with the rules of the Shari'ah, because the Imamiyyah scholars accept the rule that, when there is a conflict between a prima facie conclusion and a general rule, the rule will be given precedence and the prima facie conclusion will not be given credence without additional proof in its favor and there is no such proof in this case.

When it is known that a marriage contract has been recited, but there is a doubt regarding its having been carried out correctly, the contract will be undoubtedly considered valid. But when there is a doubt as regards the occurrence of the contract itself, it is not possible to substantiate it on the strength of the social intercourse or co-residence of the two.

A question can be raised here: The principle that the act of a Muslim is to be considered as valid on the face of it, compels the acceptance of the claim of the person claiming marriage by giving precedence to halal over haram and to good over evil. We are also commanded a regards every act in which there is a possibility of it being valid or invalid, that we rule out the possibility of its invalidity and give credit to the possibility of its validity.

The reply is that, the consideration of the act of the claimant as valid in the present problem does not prove marriage, and that which is proved is that the two have not committed any haram by social intercourse and sharing a common residence. The absence of any ground to consider their association as illegitimate may be due to marriage or due to a misconception (shubhah) on their part about the legitimacy of marriage, such as when both of them imagine it as halal and later on discover it to be haram (details of this will come later while discussing doubtful nikah). It is obvious that a general premise does not prove a particular one. For Instance, when you say, "There is an animal in the house," it does not prove the presence therein of a horse or a deer. In the same manner, here, when a man has social intercourse with a woman, not knowing the cause we may say, "She is his wife," but we should say that, "They have not committed haram," for it is possible that their associating with one another may be the result of marriage or the result of a misconception of marriage.

We shall give another example to further clarify the point. If you hear a passer-by say something without knowing whether that utterance is a curse or a greeting, it is not permissible for you to consider it a curse. Also, in such a situation it is not binding on you to return the greeting, because you are not sure of the greeting. But if you are certain that he greeted you and doubt whether it was meant as a greeting or intended to ridicule, it is binding upon you to return the greeting, considering it to be a genuine greeting and by giving precedence to good over evil. Our problem is also like this. Even if living together be considered valid, it does not prove the presence of a contract. But if we are sure about the occurrence of a contract and doubt only its validity, we will consider the contract as valid without any hesitation.

In any case, the social intercourse by itself does not prove anything, but it supplements and strengthens any other proof available. The decision in such a situation depends upon the view, satisfaction, and assessment of the judge. on the condition that he does not consider their living together as an independent proof in itself for basing his judgement.1

The above-mentioned conclusion was as regards the establishment of marriage. But as regards children, the rule of considering the act of a Muslim as valid compels the regarding of the children as legitimate at all times, because the living together of the parents is either the result of marriage or the result of a false impression of marriage, and the children born due to such false impression are equal in status to children born of marriage for all legal purposes. Therefore, if a woman has claimed a man as her lawful husband and also of having a child by him, while the man refutes marriage but acknowledges the child is his, his claim will be accepted because it is possible that the child was born due to a false impression of marriage.

To conclude, it needs to be mentioned that this problem is based on the supposition that witnesses are not required for concluding a marriage contract, as is the Imamiyyah view. But according to the other schools, it is for the party claiming marriage that it mentions the name of the witnesses, and if the party pleads its inability to present the witnesses due to their death or absence, it is possible that the above-mentioned criterion be applied.

It is also necessary to point out that the living together does not prove marriage when there is contention and disagreement to that effect; but when there is no such disagreement; we settle the claim of inheritance and it’s like by giving credit to the possibility of marriage, and on this issue there is a consensus among the schools.

- 1. Apart from this, the statements of the legists in al-Bulghah, al-Shara'i', and al-Jawahir (chapter on marriage) regarding the question at hand indicate that living together prima facie shows the presence of marriage, and this is not farfetched.

The Prohibited Degrees of Female Relations (al-Muharramat)

One of the conditions of a valid marriage contract is that the woman be free from all legal obstacles, which means that she be competent to contract marriage. The restrictions are of two kinds: the prohibition due to consanguinity and those due to other causal factors. The first include seven categories which permanently prohibit marriage. Of the second, ten categories prohibit marriage permanently and others only temporarily.

Consanguinity (al-nasab)

The schools concur that the female relatives with whom marriage is prohibited are of seven kinds:

1. Mother, which includes paternal and maternal grandmothers.

2. Daughters, which includes granddaughters how low so ever.

3. Sisters, both full and half.

4. Paternal aunts, which includes fathers' and grandfathers' paternal aunts.

5. Maternal aunts, which includes fathers' and grandfathers' maternal aunts.

6. Brother's daughters how low so ever.

7. Sister's daughters how low so ever.

The above prohibition has, its origin in the following verse of the Qur'an:

حُرِّمَتْ عَلَيْكُمْ أُمَّهَاتُكُمْ وَبَنَاتُكُمْ وَأَخَوَاتُكُمْ وَعَمَّاتُكُمْ وَخَالَاتُكُمْ وَبَنَاتُ الْأَخِ وَبَنَاتُ الْأُخْتِ

Forbidden to you are your mothers and your daughters und your s1siers and your paternal aunts and your maternal aunts and brother's daughters and sister's daughters... (4:23)

These were the prohibited degrees of relations as a result of consanguinity. Those which are the result of causal factors (al-sabab) are as follows:

Al- Musaharah (Affinity)

Affinity is the relationship between a man and a woman which forbids marriage between them; it includes the following:

1. The schools agree that the father's wife is forbidden for the son and the grandson how low so ever by the sole conclusion of the marriage contract irrespective of the establishment of sexual contact. The origin of this concurrence is this verse of the Qur'an:

وَلَا تَنْكِحُوا مَا نَكَحَ آبَاؤُكُمْ مِنَ النِّسَاءِ

And marry not women whom your fathers married... (4:22)

2. The schools concur that the son's wife is forbidden for the father and grandfather, how high so ever, merely by the conclusion of the contract. This view is based on the following verse of the Qur'an:

وَحَلَائِلُ أَبْنَائِكُمُ الَّذِينَ مِنْ أَصْلَابِكُمْ

...And the wives of your sons who are of your own loins... (4:23)

3. The schools concur that the wife's mother and her grandmother how high so ever, is forbidden on the mere conclusion of the contract, though sexual contact may not have been established as per this verse of the Qur'an:

وَأُمَّهَاتُ نِسَائِكُمْ

... And the mothers of your wives... (4:23)

4. The schools agree that marriage with the wife's daughter is not forbidden merely on the conclusion of the contract, and they consider it permissible for a man, if he divorces that wife before sexual intercourse, or before looking at her or touching her with a sexual intent, to marry her daughter on the authority of this verse of the Qur'an:

وَرَبَائِبُكُمُ اللَّاتِي فِي حُجُورِكُمْ مِنْ نِسَائِكُمُ اللَّاتِي دَخَلْتُمْ بِهِنَّ

... And your step-daughters who are in your guardianship, (born) of your wives to whom you have gone in... (4:23)

The condition فِي حُجُورِكُمْ explains the general situation. The schools concur that the daughter is forbidden when a person marries her mother and establishes sexual contact with her. But the schools differ as regards the daughter being forbidden when the marriage has been concluded and sexual contact has not been established but when he has looked at her or touched her with a sexual intent.

The Imamiyyah. the Shafii and the Hanbali schools are of the view that the daughter would be forbidden only on sexual intercourse and looking and touching with or without sexual intent does not have any effect. The Hanafi and the Maliki school consider both, looking and touching with sexual intent, as sufficient causes for prohibition and are like sexual intercourse in all aspects. (Bidayat al-mujtahid vol. 2; al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 4, the chapter on marriage)

There is a consensus among the schools that the establishment of sexual contact due to a mistake or a false impression is like marriage itself in establishing affinity and creating its related prohibition. The meaning of 'sexual contact due to mistake' is occurrence of sexual contact between a man and a woman under the false impression that they are lawfully wedded followed by the discovery that they are strangers and that the contact was a result of a mistake of fact. As a consequence of this latter knowledge, the two will separate immediately and the woman will observe an obligatory period of 'iddah1 and a reasonable mahr will become wajib on the man. Affinity would be established as a result, but the two will not inherit each other and the woman will not have the privilege of alimony (nafaqah).

II. Consanguinity Between Wives

The schools concur that combining two sisters in marriage at the same time is forbidden according to this verse of the Qur'an:

وَأَنْ تَجْمَعُوا بَيْنَ الْأُخْتَيْنِ

...And that you should have two sisters together... (4:23)

The four schools agree that a man cannot combine in marriage neither a woman and her paternal aunt nor a woman and her maternal aunt because they have a general rule that it is not permissible to marry two women of whom if one were to be a male it would be haram for him to marry the other. Therefore, if we suppose the paternal aunt a male, she would become a paternal uncle and it is not permissible for an uncle to marry his niece and if we suppose the niece a male, she would become a nephew and it is not permissible for a nephew to marry his aunt. The same rule applies to a maternal aunt and her sister's daughter.

The Khawarij considered as permissible combining as wives the aunt and her niece, irrespective of whether the aunt has granted permission for marrying her niece or not.

Among the Imamiyyah legists there is a divergence of opinion. Some of them concur with the view of the other four schools, but most of them are of the opinion that if the niece is the first to be married. It is permissible for him to marry her paternal or maternal aunt even if the niece does not grant permission for this marriage. But if the paternal or the maternal aunt has been first married, the marriage with her niece is permissible only by her permission. The proponents of the above view have based their argument on the following verse of the Qur'an:

وَأُحِلَّ لَكُمْ مَا وَرَاءَ ذَٰلِكُمْ

...And lawful to you are (all women) besides those... (4:24)

In this verse, after mentioning those women with whom marriage is forbidden, the rest have been permitted, and this permission extends to combining the aunt and the niece together in marriage, and had it been Haram the Qur'an would have explicitly mentioned it as it expressly mentions the prohibition regarding combining two sisters in marriage. As regards the general rule which supposes one of the two women to be a male, it is istihsan, which is considered unreliable by the Imamiyyah. Apart from this, Abu Hanifah has considered it permissible for a man to marry a woman and her father's wife despite of the fact that if any of these two were supposed a male, his marriage with the other would not be permissible. Obviously, it is not permissible for a man to marry his daughter or step-daughter, in the same way as it is not permissible for him to marry his mother or his father's wife. (Kitab ikhtilaf Abi Hanifah: Ibn Abi Layla, the chapter on marriage)

III Fornication (al-Zina)

It comprises the following issues:

1. The Shafi’i and the Maliki schools consider a man's marrying his daughter born of fornication as permissible and so also marrying his sister, his son's daughter, his daughter's daughter, his brother's daughter, and his sister's daughter, because she is legally a stranger to him and because the law of inheritance does not apply between them, nor the law of maintenance. (al-Mughni. vol. 6, the chapter on marriage)

The Hanafi, the Imamiyah and the Hanbali schools regard marriage with a daughter by fornication as haram (prohibited) as one with a lawful daughter, because. they say, the daughter by fornication is born of his seed and is therefore considered his daughter in the literal sense and by the society in general. Her legal disability to inherit does not negate the fact of her being his daughter: it only negates such legal effects as inheritance and maintenance.

2. The Imamiyyah have observed: He who commits fornication with a woman or establishes sexual contact with her by mistake, while that woman is either married or is observing the 'iddah period as a result of a revocable divorce, she would become haram for him permanently, i.e. it is forbidden for him to marry her even if she separates from her husband as a result of an irrevocable divorce or death. But if he establishes sexual contact with a woman while she is unmarried or is undergoing the 'iddah period as a result of the death of her husband or as a result of an irrevocable divorce, she would not be forbidden for him.

According to the four schools, fornication or adultery is no obstacle to marriage between the two, regardless of whether the woman is married or unmarried.

3. According to the Hanafi and the Hanbali schools fornication and adultery establish affinity. Therefore, he who establishes illegitimate sexual contact with a woman, the mother and daughter of that woman will become haram for him, and that woman will be haram for his father and his son. These schools do not make any difference between the establishments of such illegitimate contact before marriage or after it. Therefore, when a person establishes sexual contact with his wife's mother or a son with his father's wife, the wife will become haram for her lawful husband permanently; rather, according to the Hanafi book Multaqa al-'anhur (volume 1, the chapter on marriage): "If a person intends to wake up his wife for intercourse and his hand reaches her daughter and he caresses her with sexual emotion while she, thinking it to be her mother, entertains it, her mother will become haram for him permanently. The same will apply to a woman who intends to wake up her husband and (mistakenly) caresses his son from another wife."

The Shafi’i school is of the opinion that fornication does not establish affinity in the light of this tradition:

الحرام لا يحرم الحلال

A haram does not illegitimate a halal.

The Malikis have two views on this question.

One of them favors the Shafi’i view, the other, the Hanafi view. The Imamiyyah consider fornication as capable of creating the prohibition pertaining to affinity. Thus, he who fornicates with a woman, makes her haram for his father and his son. But as regards adultery after marriage, they observe that it does not illegitimate the lawful conjugal ties. Thus he who commits adultery with his wife's mother or his wife's daughter, his marriage with her stays as it is. The same applies to a father who commits adultery with his son's wife or a son with his father's wife; in both the cases the wife would not be considered haram for her lawful husband.

IV. Number of Wives

The legal schools concur that it is permissible for a man to have four wives at a time2, but not a fifth as per the verse:

فَانْكِحُوا مَا طَابَ لَكُمْ مِنَ النِّسَاءِ مَثْنَىٰ وَثُلَاثَ وَرُبَاعَ

... Then marry such women as seem good to you, two and three and four... (4:3)

When any one of those wives is released from the bonds of marriage, either due to her death or divorce, it becomes permissible for him to marry another. The Imamiyyah and the Shafi’i schools say: When a man gives one of his wives a revocable divorce, it is not permissible for him to marry another till the expiry of the 'iddah period. But if it be an irrevocable divorce it is permissible for him to do so. Also, it is permissible that he marry his irrevocably divorced wife's sister during his wife's 'iddah because an irrevocable divorce prohibits marriage and breaks the marital bond.

According to the other schools, it is not permissible for him to marry a fifth wife or the sister of his divorced wife until the expiry of the 'iddah period irrespective of whether the divorce is a revocable or an irrevocable one.

V. Li'an

When a man accuses his wife of adultery or denies the paternity of her child, and she denies the charge and he has no proof to offer, it is permissible for him to pronounce the lian against her. The method of taking the oath of condemnation is that, first the man swears by Allah four times that he is indeed speaking the truth in accusing her, and the fifth time that the curse of Allah fall on him should he be lying. Then the woman will swear four times by Allah that he is lying, and the fifth time that the wrath of Allah be on her if he be speaking the truth.

If the man ref uses to pronounce the lian, he is punished with the hadd (for qadhf); but if he takes the oath of li'an and the woman refuses to pronounce the lian, she is liable to the badd for adultery. If both of them pronounce lian against each other, none is liable to hadd and the two will separate and the child whose paternity he had denied would not be given to him.

The source of the above discussion is these verses of the Surat al-Nur:

وَالَّذِينَ يَرْمُونَ أَزْوَاجَهُمْ وَلَمْ يَكُنْ لَهُمْ شُهَدَاءُ إِلَّا أَنْفُسُهُمْ فَشَهَادَةُ أَحَدِهِمْ أَرْبَعُ شَهَادَاتٍ بِاللَّهِ ۙ إِنَّهُ لَمِنَ الصَّادِقِينَ

وَالْخَامِسَةُ أَنَّ لَعْنَتَ اللَّهِ عَلَيْهِ إِنْ كَانَ مِنَ الْكَاذِبِينَ

وَيَدْرَأُ عَنْهَا الْعَذَابَ أَنْ تَشْهَدَ أَرْبَعَ شَهَادَاتٍ بِاللَّهِ ۙ إِنَّهُ لَمِنَ الْكَاذِبِينَ

وَالْخَامِسَةَ أَنَّ غَضَبَ اللَّهِ عَلَيْهَا إِنْ كَانَ مِنَ الصَّادِقِينَ

If a man accuses his wife but has no witnesses except himself, he shall swear four times by Allah that his charge is true, calling down upon himself the curse of Allah if he is lying. But if his wife swears four times by Allah that his charge is false and calls down His curse upon herself if it be true, she shall receive no punishment. (24:6-9)

There is consensus among the school that it is wajib for the two to separate after the lian. But they differ as to whether such a wife is permanently haram for her husband so as to make it impermissible for him to remarry her later, even if he denies his own charge, or if she is haram only temporarily so as to permit him to marry her after withdrawing his own accusation.

The Shafi'i, the Imamiyyah, the Hanbali and the Mailiki schools forbid her permanently for him even if he denies his own accusation. The Hanafi school considers separation due to the lian like divorce; it would not make her Haram permanently because the prohibition arises from the lian and is removed on the withdrawal of his accusation. (al-Mughni, vol. 7; al-Sha'rani, al-Mizan, the chapter on mula'anah)

VI. Number of Divorces

The schools concur that if a man divorces his wife for the third time having resumed conjugal relations twice earlier, she will become haram for him and will not become halal for him again unless she marries another husband. This requires that she observe the 'iddah after her third divorce and after the completion of this period consummate a permanent marriage with another man. Then if she separates from the second husband, due to his death or as a result of divorce, and completes the 'iddah, it becomes permissible for the first to remarry again. After this, if he again repeats the same sequence and divorces her three times, she becomes haram for him until she consummates marriage with another man. Similarly, she becomes haram for him after every third divorce and becomes halal by marrying another, even if she be divorced a hundred times. Accordingly, every third divorce is considered a temporary not a permanent obstacle to marriage.

But the Imamiyyah observe: If a woman is divorced nine times in the talaq al-'iddah form she becomes haram permanently. By talaq al-'iddah they mean that the husband first divorces his wife, then resumes conjugal and sexual relations: then he divorces her again during another period when she is not having menses, then again resumes conjugal and sexual relations; then divorces her in yet another period when she is free from menses. Now she will not be halal for him until she consummates a permanent marriage with another man. Now, if this first husband marries her again after her separating from that second husband and divorces her three times in the talaq al-'iddah form, she becomes halal again by consummating marriage with another. If he then marries her (for the third time) and divorces her in the talaq al-'iddah form, the divorces completed, she will become haram for him permanently. But when the divorce is not a talaq al-'iddah, such as when he returns to her and then divorces her without establishing sexual relations or marries her by another fresh contract after her completing the 'iddah, she will not become haram for him even if she is divorced a hundred times.

VII. Difference of Religion

The schools agree that it is not permissible for a male Muslim nor for a female Muslim to marry those who do not neither a revealed nor a quasi-revealed scripture, or those who worship idols, fire or the sun, the stars and other forms, or non-believers who do not believe in Allah. The four schools concur that marriage is not permissible with those who a quasi-scripture, such as the Zoroastrians. By 'quasi-scripture' is meant a scripture which is said to have originally existed, as in the case of the Zoroastrians, but was changed, causing it to be lifted from them.

According to the four schools, it is permissible for a Muslim man to marry a woman belonging to the Ahl al-Kitab, which implies Christians and Jews. But it is not permissible for a Muslim woman to marry a man belonging to the Ahl al-Kitab. The Imamiyyah scholars agree with the other four schools that a Muslim woman cannot marry a man belonging to the Ahl al-Kitab, but differ among themselves regarding the marriage of a Muslim man with a female belonging to the Ahl al-Kitab. Some of them hold that intermarriage, either permanent or temporary, is not permissible. They base their argument on these verses of the Qur'an:·

وَلَا تُمْسِكُوا بِعِصَمِ الْكَوَافِرِ

...And hold not to the ties of marriage of unbelieving women... (60:10)

وَلَا تَنْكِحُوا الْمُشْرِكَاتِ حَتَّىٰ يُؤْمِنَّ

... And do not marry the idolatresses until they believe... (2:221)

Here they interpret shirk as kufr and not having faith in Islam. According to the Qur'an the Ahl al-Kitab are not mushrikun, as this verse shows:

لَمْ يَكُنِ الَّذِينَ كَفَرُوا مِنْ أَهْلِ الْكِتَابِ وَالْمُشْرِكِينَ مُنْفَكِّينَ حَتَّىٰ تَأْتِيَهُمُ الْبَيِّنَةُ

The unbelievers among the People of the Book and the pagans did not break off (from the rest of their communities) until the proof came unto them. (98:1)

Others are of the opinion that such a marriage, both temporary and permanent, is permissible, and as a proof they quote the following verse of the Qur'an:

وَالْمُحْصَنَاتُ مِنَ الْمُؤْمِنَاتِ وَالْمُحْصَنَاتُ مِنَ الَّذِينَ أُوتُوا الْكِتَابَ مِنْ قَبْلِكُمْ

...And the chaste from among the believing women and the chaste from among those who have been given the Book before you (are lawful to you)... (5:5)

This verse, according to them, explicitly permits marriage with women of the Ahl al-Kitab. The third group, seeking to reconcile the texts in favor and against such intermarriage, only permits temporary not permanent marriage. They take those texts which forbid such marriage to imply permanent marriage, and those which permit it are taken to imply temporary marriage. On the whole most of the contemporary Imamiyyah scholars consider permanent marriage with a woman belonging to the Ahl al-Kitab as permissible and the Imami Shari'ah courts in Lebanon marry a Muslim male to a female belonging to the Ahl al-Kitab. They register such a marriage with all the legal effects proceeding therefrom.

All schools, except the Maliki, recognize the marriages of all non-Muslims as valid if performed according to their tenets. The Muslims confer upon such a marriage all the legal effects of a valid marriage without differentiating between the Ahl al-Kitab and others-even if they permit marriage within prohibitive limits of consanguinity. The Malikis consider such a marriage as invalid because, they explain, it would be invalid if performed by a Muslim. Therefore, the same is true of non-Muslims. This stance of the Malikis is not reasonable, because it makes non-Muslims scared of Islam and leads to anarchy and disruption of the social order. Apart from this, the Imamiyyah have recorded these traditions which confirm their stance:

من دان بدين قوم لزمته أحكامهم...

For one who follows the religion of a community, its rules would be binding upon him...

وألزموهم بما ألزموا به أنفسهم.

And require them to follow that which they consider binding upon themselves. (al-Jawahir, chapter on divorce)

Litigation Between the Ahl al-Kitab

In the Imamiyyah work, al-Jawahir (chapter on jihad), there is a useful discussion which is relevant here. Its summary is as follows:

If two non-Muslims litigate before a Muslim judge, should he give his judgment according to the laws of their religion or according to the Islamic law? The answer is: If the litigants are dhimmis, the judge has discretion to either judge according to the Islamic law or to dismiss the case without any hearing. The following verse of the Qur'an gives this discretion:

فَاحْكُمْ بَيْنَهُمْ أَوْ أَعْرِضْ عَنْهُمْ ۖ وَإِنْ تُعْرِضْ عَنْهُمْ فَلَنْ يَضُرُّوكَ شَيْئًا ۖ وَإِنْ حَكَمْتَ فَاحْكُمْ بَيْنَهُمْ بِالْقِسْطِ

...Judge between them or turn aside from them, and if you turn aside from them, they shall not harm you in any way; and I/ you judge, judge between them with fairness... (5:42)

It was asked of al-'Imam al-Sadiq ('a) regarding two men of the Ahl al-Kitab between whom there is a dispute and they take the case before their own judge and when this judge judges between them, the one against whom the judgment was given refuses to comply and asks that the issue be settled before the Muslim judge. The Imam ('a) replied, "The judgment shall be according to the law of Islam."

If the litigants are those who are at war with the Islamic State (harbi), the judge is not obliged to settle their dispute and to protect some of them against others, as he is in the case of dhimmis.

If one of the litigants is a dhimmi or a harbi and the other a Muslim, the judge is obliged to accept the suit and to judge between them according to the Islamic law, in accordance with the Divine command:

وَأَنِ احْكُمْ بَيْنَهُمْ بِمَا أَنْزَلَ اللَّهُ وَلَا تَتَّبِعْ أَهْوَاءَهُمْ وَاحْذَرْهُمْ أَنْ يَفْتِنُوكَ عَنْ بَعْضِ مَا أَنْزَلَ اللَّهُ إِلَيْكَ

Pronounce judgement between them in accordance with Allah's revelations and do not be led by their desires. Take heed lest they should turn you away from a part of that which Allah has revealed to you... (5:49)

Moreover, if a dhimmi woman sues her husband, the judgment will be given according to the Islamic law.

The above discussion makes it clear that Muslims should recognize as valid all those transactions of non-Muslims which are in conformity with their religion, as long as they do not refer it to Muslims for a decision. But if they seek a decision from Muslims, it is wajib for them to decide, at all times, according to the Islamic law. As is understandable from the verses of the Qur'an and the traditions, it is also wajib to judge between them in accordance with the norms of justice and fairness.

VIII. Fosterage (al-Ridi')

All the schools concur regarding the veracity of the tradition:

يحرم من الرضاع ما يحرم من النسب

(That which becomes haram due to consanguinity becomes haram due to fosterage). According to this tradition fosterage includes the same limits of relationship prohibitive to marriage as consanguinity. Thus any woman who as a result of breast-feeding becomes a foster-mother or a foster daughter or a sister or an aunt (both maternal and paternal) or a niece, marriage with her is haram according to all the schools. But the schools differ regarding the number of breast-feedings which cause the prohibition and the conditions applicable to the foster-mother and the foster-child.

1. The Imamiyyah say: It is necessary that the woman's milk be the result of lawful sexual relations, and if it secretes without marriage or as a result of a pregnancy due to adultery, the prohibition does not come into effect. It is not necessary that the woman remain conjugally bound to the person who is the cause of her turning lactiferous. Even if he divorces her or dies while she is pregnant or lactiferous, the prohibition comes into effect if she breast-feeds a child, even though she marries another and has intercourse with him.

The Hanafi, the Shafi'i and the Maliki schools are of the opinion that there is no difference between the woman being a virgin or a widow and between her being married or unmarried as long as she has milk with which she feeds the child. According to the Hanbali school the legal effects of fosterage will not follow unless the milk is the result of a pregnancy, and they do not set a condition that the pregnancy be due to lawful intercourse (Muhammad Muhyi al-Din 'Abd al-Hamid in al-'Ahwal al-shakhsiyyah).

2. The Imamiyyah consider it necessary that the child should have sucked milk from the breast, so if it is dropped in his mouth or he drinks it in a manner other than direct sucking, the prohibitive relationship would not be established. The other four schools consider it sufficient that the milk reach the child's stomach, whatever the manner (Bidayat al-mujtahid ; Hashiyat al-Bajuri, "Bab al-rida"'). According to al-Fiqh 'ala al-madhahib al-'arba'ah , the Hanbalis consider it sufficient that the milk reach the child's stomach, even if through his nose.

3. According to the Imamiyyah, the prohibitive relationship is not realized unless the child is suckled one day and one night in a manner that his exclusive diet during this period be the milk of that woman without any other food, or is breast-fed fully fifteen times uninterrupted by breast-feeding by another woman. In the book al-Masalik the giving of food has been considered effect-less. The reason given for the above-mentioned quantity is that it leads to the growth of flesh and hardens the bones.

The Shafi’i and the Hanbali schools regard five breast-feedings as the minimum necessary. The Hanafi and the Maliki schools consider that the prohibitive relationship is established simply by being breast-fed irrespective of the quantity fed. be it more or less or even a drop. (al-Fiqh 'ala al-madhahib al-'arbaah)

4. The Imamiyyah, the Shafi’i, the Maliki and the Hanbali schools have mentioned the period of breast feeding to be up to two years of the age of the child. The Hanafi school considers it to be two and a half years.

5. According to the Hanafi, the Maliki, and the Hanbali schools, it is not necessary that the foster-mother be alive at the time of feeding. Therefore, if she dies and the child crawls up to her and sucks from her breast, it is sufficient to establish the prohibitive relationship. But the Malikis have gone further and observed that even if there is a doubt as to that which the child has sucked, whether it is milk or not, the prohibitive relationship would be established. (al-Fiqh 'ala al-madhahib al-'arbaah)

The Imamiyyah and the Shafi’i schools consider it necessary that the woman be alive at the time of breast-feeding and if she dies before completion of the minimum feedings, the prohibitive relationship would not be established.

The schools concur that the sahib al-laban, i.e. the husband of that woman, will become the foster-father of the breast-fed child, and between the two all those things which are haram between fathers and sons will be haram. His mother will become a grandmother for the breast-fed child, and his sister the child's aunt in the same manner as the woman who breast-feeds the child becomes his mother and her mother his grandmother and her sister his aunt.

IX. Al-'Iddah

There is consensus among the schools that marriage with a woman undergoing 'iddah is not permissible and she is like a married woman in all aspects, irrespective of whether she is undergoing 'iddah due to the death of her husband or as a result of divorce, revocable or irrevocable, in accordance with the following verses of the Qur'an:

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ

And the divorced women should keep themselves in waiting far three menstrual courses... (2:228)

وَالَّذِينَ يُتَوَفَّوْنَ مِنْكُمْ وَيَذَرُونَ أَزْوَاجًا يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا

And (as for) those of you who die and leave wives behind, they (the wives) should keep themselves in waiting for four months and ten days... (2:234)

The meaning of al-tarabbus is to be patient and to wait.

The schools differ regarding one who marries a woman during her 'iddah, as to whether she will become haram for him. According to the Maliki School she becomes haram for him permanently if intercourse takes place, otherwise not. According to the Hanafi and the Shafi'i schools the two should separate, there being no impediment to remarriage on completion of the 'iddah. (Bidayat al-mujtahid)

It is mentioned m the seventh pan of al-Mughni, a book of the Hanbali s (chapter on 'iddah): "If a person consummates marriage with a woman during her 'iddah and both know it and know that marriage is haram during 'iddah, both of them would be considered fornicators and liable to punishment." In the sixth pan of the same book (chapter on marriage) it is stated: "If a woman fornicates, marriage with her will not be halal for one who knows it unless these two conditions are fulfilled: completion of the 'iddah and penitence for fornicating... If these two conditions are fulfilled, there is no obstacle to her marriage with the fornicator or someone else." This shows that according to the Hanbalis, marriage during 'iddah does not result in permanent prohibition to marriage.

According to the Imamiyyah, marriage with a woman during 'iddah, after a revocable or an irrevocable divorce, is not permissible, and if one marries her with the knowledge of the 'iddah and the related prohibition, the contract is void and she would become haram for him permanently, irrespective of sexual contact. But if he has no knowledge of the 'iddah and of such marriage being haram, she would not become haram permanently unless he has had intercourse with her. If he has not had intercourse, only the contract would become void, and he may marry her after the completion of the 'iddah (al-Masalik, vol. 2, chapter on divorce).

X. Al-'Ihram

The Imamiyyah, the Shafi'i, the Maliki and the Hanbali schools say:· A muhrim for Hajj or 'Umrah, man or woman, cannot marry nor conclude marriage on behalf of another acting as a guardian or an agent. The marriage, if performed, is void in accordance with the tradition:

لا ينكح المحرم ولا ينكح ولا يخطبز

A muhrim may not propose, nor marry, nor conclude marriage for another.

The Hanafi school considers ihram as no hindrance to marriage. The Imamiyyah hold that if a marriage is performed without the knowledge of the prohibition during the state of ihram, it will make the woman temporarily haram. When they are relieved of ihram-or he, when the woman had not been in the state of ihram at all-it is permissible for him to marry her. But if concluded with the knowledge of the prohibition, the two should separate. and she would become permanently haram to him. The other schools hold that she would become haram only temporarily. (al-'Allamah al-Hilli in al-Tadhkirah, vol. 1, chapter on Hajj; Bidayat al-mujtahid, chapter on marriage).

- 1. ‘Iddah is a period of waiting prescribed by the Shari’ah to be observed by a woman on divorce or the death of her husband. The 'iddah for divorce is three months (three menstrual cycles): for death, four months and ten days. (Tr.)

- 2. It is strange that al-Shaykh Abu Zuhrah, in al-'Ahwal al-shakhsiyyah, page 83, ascribes it to some Shi'ahs that they consider it valid to have nine wives at a time on the basis that mathna, thulath, and ruba’ (in the Qur'anic verse about the permissible number of wives ) i.e. two, three and four, adds up to a total of nine! Firstly, there is no source for this statement. Al-'Allamah al-Hilli, in al-Tadhkirah, says, "This view is attributed to some Zaydiyyah, but they categorically deny it, and I have not seen anyone expressing this view."

Matrimonial Guardianship

Wilayah in marriage implies the legal authority granted to a competent guardian to be exercised over one under a legal disability for his or her advantage. This discussion comprises the following issues:

Wilayah over a Mature and Sane Girl

The Shafi'i, the Maliki and the Hanbali schools are of the opinion that the wali (guardian) has the sole authority with respect to the marriage of his sane and major female ward if she is a maiden. But if she is a thayyib (that is, a girl who has had sexual intercourse), his authority is contingent on her consent. Neither he can exercise his authority without her consent, nor she can contract marriage without his permission. It is wajib that the wali take the responsibility of concluding the contract, which would not conclude if the woman recites it, though it is essential that she consent.

The Hanafis regard a sane, grown-up female as competent to choose her husband and to contract marriage, irrespective of her being a maiden or a thayyib. No one has any authority over her, nor any right to object, provided she chooses one her equal and does not stipulate less than a proper dower (mahr al-mithl) for the marriage. If she marries someone who is not her equal, the wali has the right to object and demand the annulment of the contract by the qadi, and if she marries her equal but for less than the proper dower, the wali has the right to demand annulment if the husband does not agree to a proper dower. (Abu Zuhrah, al-'Ahwal al-shakhsiyyah)

Most of the Imamiyyah scholars are of the view that a sane girl of full age, on maturing, is fully competent to decide her contractual as well as non-contractual affairs and this includes marriage, regardless of her being a maiden or thayyib. Therefore, it is valid for her to contract for herself or on behalf of others, directly or by appointing a deputy, by making an offer or giving her acceptance, and irrespective of her having or not having a father, a grandfather, or other relatives. It is of no consequence whether the father agrees or not. The social status of the girl, higher or lower, and whether she marries a respectable or an abject person, is of no consequence. No one has a right of objection in this regard. Thus, she is in all respects on a par with a male, without any difference whatsoever. The scholars support this argument by quoting the following verse of the Qur'an:

فَلَا تَعْضُلُوهُنَّ أَنْ يَنْكِحْنَ أَزْوَاجَهُنَّ

... Then do not prevent them from marrying their husbands... (2:232)

The following tradition of the Prophet(S) narrated by Ibn al-'Abbas also supports their view:

الأيم أحق بنفسها من وليها

An aym has more authority over him/herself than his/her guardian.

'Aym' is one who is without a mate, man or woman; a maiden or thayyib.

The scholars have also put forth a rational argument and observed that reason dictates that every human being has total liberty regarding his own affairs and no other person, regardless of his being a near or distant relative, has any authority over him. Ibn al-Qayyim has well observed when he says: "How can it be legitimate for a father to marry his daughter without her consent to anyone of his choice, while she disapproves such a marriage and regards him as the most detestable person in the world, and yet he should forcefully marry her and hand her over as a captive to him!..."

Wilayah in Cases of Minority, Insanity and Idiocy

The legal schools concur that the guardian is authorized to contract marriage on behalf of his minor or insane ward (male or female). But the Shafi’i and the Hanbali schools have limited this authority to the case of a minor maiden, and as regards a ward who is minor thayyib, they do not recognize any such authority for the guardian. (al-Mughni, vol. 6, Chapter on Marriage)

The Imamiyyah and the Shafi’i schools consider only the father and the paternal grandfather as competent to contract marriage on behalf of a minor ward. The Malikis and the Hanbalis further limit it to the father. The Hanafi School extends it to other relatives, even if it be a brother or an uncle.

The Hanafi, the Imamiyyah, and the Shafi’i schools regard a contract of marriage with an idiot as invalid without the consent of his guardian. The Maliki and the Hanbali schools consider it valid, and the consent of the guardian is not required. (al-Tadhkirah, vol. 2; al-Mughni, vol. 2, chapter on hijr)

The Order of Priority in Guardianship

The Hanafis give priority to the son as regards wilayah over his mother, even if he be an illegitimate one. After the son, his son is given the right to wilayah and then follow: the father, the paternal grandfather, the full brother, the half-brother (paternal), the full brother's son, the half-brother's son, the paternal uncle, the paternal uncle's son, and so on.

From this it is clear that the executor of the ward's father's will does not have matrimonial guardianship even if he has been explicitly given this authority.

The Malikis give priority to the father and after him the wilayah goes to the executor of his will. Then comes the turn of the son, even if he be an illegitimate one. Thereafter come the brother, the brother's son, the paternal grandfather, the paternal uncle... and so on. On this order being exhausted the wilayah will finally lie with the hakim.

The Shafi'i scholars give the father priority in exercising wilayah. After him, the paternal grandfather, the full brother, the half-brother (paternal), the brother's son, the paternal uncle, the paternal uncle's son, and so on, will exercise wilayah in the descending order till it finally reaches the hakim.

The Hanbalis regard the father, and after him the executor of his will, as those competent to exercise wilayah. After these two, the order follows the pattern of inheritance till it finally reaches the hakim.

According to the Imamiyyah, only the father and the paternal grandfather-and on some occasion, the hakim -are those authorized to exercise wilayah with respect to marriage. Both the father and the grandfather are independent in the exercise of their wilayah over a minor (girl or boy) or over an adult whose lunacy or idiocy precedes his adulthood. That is, when he/she has been a lunatic or an idiot when a minor and this state has continued into adulthood. But if lunacy or idiocy has resulted after maturity, the father and the grandfather have no authority for contracting marriage on behalf of such an adult. In this case the hakim will exercise his wilayah despite the presence of the father and the grandfather.

When the father chooses one mate and the grandfather another, the latter's choice shall prevail.

The marriage contracted by the wali -be it the father, the grandfather or the hakim-comes into effect if it is not against the interests of the ward. If it is, the ward has the option of dissolving the marriage on attaining maturity.

The Hanafis have observed; When the father or the grandfather of a minor girl marries her to a person who is not her equal or for less than mahr al-mithl, the marriage will be valid unless it is evident that there has been a misuse of authority. But if such a marriage is concluded on behalf of a minor girl by her wali who is neither her father nor her grandfather, the marriage will be considered void ab initio.

The Hanbali and the Maliki schools have said: The father may give his daughter in marriage for less than mahr al-mithl. The Shafi’i school says that he may not, and if he does so, the daughter has the right to claim mahr al-mithl.

The Imamiyyah have said; If the wali gives his minor female ward in marriage for less than mahr al-mithl or contracts marriage on behalf of his minor male ward for more than such mahr, the contract and the mahr will both be valid on there being a good reason for doing so. In the absence of such a reason, only the contract will be valid and the validity of the mahr will depend upon the ward's agreeing to it after maturity. If the ward does not agree the mahr will be reduced to the mahr al-mithl.

There is consensus among the schools that a just ruler (hakim) can contract marriage on behalf of a lunatic, male or female, if he/she has no wait from among their relatives. This consensus is based on the following tradition:

السلطان ولي من لا ولي له.

The ruler is the wali of him who has no wali.

The Imamiyyah and the Shafi’i schools do not consider the hakim competent to exercise wilayah over a minor girl. The Hanafi School gives this authority to the hakim, but does not consider the contract so concluded as binding. Therefore, the girl can set it aside on maturity. Thus the position of the Hanafis is in fact similar to that of the Imamiyyah and the Shafi’i schools because the hakim becomes redundant in this matter. According to the Maliki school, the hakim is competent to contract marriage on behalf of a minor or a lunatic (male or female) with their equals on their not having any relative to act as wali. The hakim is also given competence to conclude marriage on behalf of a sane grown-up girl, with her consent.

The schools concur that it is necessary for a wali: that he be an adult Muslim male. As to the condition of 'adalah (justice), it is required in the hakim who is acting as wali, not for a relative acting as such, except by the Hanbali school which considers 'adalah as necessary for every wali regardless of his being a relative or a hakim.

Al-Kafa'ah (Equality)

The meaning of "al-Kafa'ah'', according to those who consider it as consequential in marriage, is that the man be an 'equal' of the woman in certain things. Moreover, they require kafa'ah of men only, because it is not something dis-approvable for a man to marry a woman lower in status as against a woman doing the same.

The Hanafi, the Shafi’i and the Hanbali schools concur in requiring kafa'ah in religion (Islam), freedom1 (i.e. in his not being a slave), profession and lineage. These schools differ regarding kafa'ah in prosperity and wealth. The Hanafi and the Hanbali schools recognize it, while the Shafi’i school does not.

The Imamiyyah and the Maliki schools do not accept the notion of kafa'ah except in religion, in accordance with the following tradition:

إذا جاءكم من ترضون دينه وخلقه فزوجوه إلا تفعلوه تكن فتنة في الأرض وفساد كبير

When someone, whose faith and conduct is acceptable to you, comes to you with a proposal, then marry him. If you don't, it will result in corruption upon the earth and great discord.

In any case, the condition of kafaah in marriage does not harmonize with the following verse of the Qur'an:

إِنَّ أَكْرَمَكُمْ عِنْدَ اللَّهِ أَتْقَاكُمْ

...Surely the most honorable amongst you in God 's sight is the most pious amongst you... (49:13)

The condition of kafa’ah contradicts a basic principle of Islam which says:

لا فضل لعربي على عجمي إلا بالتقوى

There is no superiority for an Arab over a non-Arab except on the basis of taqwa(piety).

Also, it is opposed to the practice (sunnah) of the Prophet (S), who ordered Fatimah bint Qays to marry Zayd ibn Usamah and ordered Banu Bayadah to marry Abu Hind, who was a cupper. That is why we see a group of eminent scholars, such as Sufyan al-Thawri, al-Hasan al-Basri, 'al-Karkhi among the Hanafis and Abu Bakr al-Jassas and the followers of these two among the scholars of Iraq' (Ibn 'Abidin, vol. 2, chapter on marriage) disregarding kafa'ah as a condition in marriage.

- 1. By including freedom' as one of the conditions of al-kafa'ah, the Hanafi school contradicts one of its own fundamental principles. This school allows the death penalty of a freeman for murdering a slave and that of a slave for murdering a freeman, whereas the other schools, including the Imamiyyah, have said: A freeman may not be killed for killing a slave, but a slave will be killed for killing a freeman. Apart from this, the Hanafis do not consider it necessary that a guardian, in a contract of marriage, be a freeman, and this is contrary to the opinion of some other schools.

Al-'Uyub (Defects)

Is it possible for one of the spouses to dissolve the marriage on finding a certain defect in the other? The schools have differed regarding the defects which justify the dissolution of the marriage and also regarding the rules that apply in these circumstances.

Al-'Anan (Impotence)

Al-'anan is a disease which renders a man incapable of sexual intercourse. All the five schools give the wife the right to dissolve the marriage in such a situation. But in a situation where the husband's inability is limited to his wife and he is capable of intercourse with any other, the schools have different views regarding the wife's right of dissolving the marriage.

The Imamiyyah have said: The wife's right to dissolve the marriage is not ascertained unless the husband is incapable of having intercourse with any woman whatsoever. Therefore, on his inability being limited to his wife and not others, the right of dissolving the marriage does not accrue,1 because the source of this right is a rule which gives the power of dissolving marriage to the wife of an impotent man; one who is capable of having intercourse with other women is not considered impotent in the true sense of the word. This is so because impotence is a bodily defect which renders a man incapable of intercourse with any woman, exactly like a blind man who cannot see anything.

In a case where a person is incapable of intercourse, with his wife and not others, then the reason is necessarily an external cause apart from an innate physical defect. The reason could be shyness or fear or a quality of the wife which makes her detestable, or something else. It has also been observed that there are such criminals whose dislike of legitimate (sexual) relations has reached such a degree that they are unable to perform it. On the contrary, their inclination towards haram is such that it gives them the required strength and the pleasure of performing it.

According to the Shafi’i, the Hanbali and the Hanafi schools, a person's inability to copulate with his wife gives her the right to dissolve the marriage despite his being capable of it with other women, because in such a case he will be considered impotent with respect to her. Besides, they point out, of what benefit is to the wife if he is capable of having intercourse with other women!

However, there is consensus among the schools that when a woman pleads the impotence of her husband and he denies the charge, the burden of proof will rest on her to prove that he is impotent. On no proof being offered2 it will be seen whether she was a maiden prior to marriage or not. If she had been one, she will be referred to female specialists to determine her present condition, and their opinion will be acted upon. In a case where the wife is not a maiden, the husband will be made to take an oath because it is he who denies the charge made by the wife claiming the presence of a defect sufficient for dissolving the marriage. If he takes the oath, the wife's claim will be dismissed. But on his abstaining from taking the oath, the wife will take the oath and then the qadi will give him a lunar years’ time.

When this period also does not yield any benefit for the wife, the qadi will grant her the option of remaining with him or of dissolving the marriage. If she elects to remain with him, the choice is hers and if she desires dissolution, she will herself annul the marriage or the hakim on her request. According to the Imamiyyah, the Shafi'i and the Hanbali schools, she does not require a divorce for the separation. The Malikis have said: She will divorce herself by the order of the qadi. This observation of the Malikis does in fact mean annulment. The Hanafi school is of the opinion that the qadi will order the husband to pronounce the divorce and on his refusal the qadi will pronounce the divorce.

The Hanafis, in such a case, regard the payment of the full mahr as necessary: the Imamiyyah consider the payment of half the mahr as sufficient. The Maliki, the Shafi’i and the Hanbali schools are of the opinion that she will not be entitled to receive any mahr.

If the husband's impotence is subsequent to the consummation (al-'aqd wa al-dukhul) of marriage, the wife will not have the choice of dissolving the marriage. However, if impotence occurs after the contract but before the consummation of marriage, she will have the choice of annulment in the same manner as when impotence precedes the contract.3

Al-Jabb and al-Khisa'

Al-jabb means; the state of mutilation of the male organ and by al-khisa' is meant castration, either by the removal or by the crushing of both testicles. Both, al-jabb and al-khisa, if present before the consummation of marriage, give the wife the immediate right to annul the contract. But if these two defects occur after the consummation of marriage, the right to annul the marriage will not result.

The Hanafis have observed that if the castrated person has the capacity of erection, the right to annul the marriage does not arise, even though ejaculation be absent. The other schools regard ejaculation as a necessary condition regardless of erection, because the inability to ejaculate is a defect similar to impotence.

Al-Shahid al-Thani, in the chapter on marriage of his book al-Masalik, volume 1, has narrated that a castrated person can penetrate and have orgasm, and his condition during the act is more intense than a normal male, although he does not ejaculate. This inability is sufficient for rescinding the contract, because the traditions prove the right of the wife of a castrated person to opt for separation.

The Hanafi have said: When the contract is rescinded as a result of any of these two defects, the wife shall be entitled to full mahr. The other schools have observed that. if the contract is annulled as a consequence of al-jabb, no mahr need be paid because marriage has not been consummated. But if al-khisa be the cause for rescinding the contract, she will receive mahr only when consummation has occurred.

The Hanafi School does not recognize any ground on which the husband may annul the contract, even though there may be tens of defects in the wife. On the contrary, the wife has the right of annulling the marriage on the basis of any of the three above-mentioned defects, i.e. al-'anan, al-jabb and al-khisa. Therefore, the Hanafis have nothing to say about the forthcoming defects.

Insanity

The Maliki, the Shafi’i and the Hanbali schools concur that the insanity of one spouse gives the other the right to annul the marriage. But these schools differ regarding the details. The Shafi’i and the Hanbali schools have granted the right of annulment irrespective of whether madness results before or after marriage, and even after consummation. There is no period of waiting before annulment, as required in the case of impotence.

According to the Malikis, if the insanity occurs before marriage, the right to annul the contract results for the sane spouse, on the condition that he or she suffers harm in living with the other. But if the insanity results after marriage, only the wife has the right to annul the marriage after a probationary period of a year granted by the judge. The husband cannot annul the marriage if his wife loses sanity after marriage.

According to the Imamiyyah, the husband will not annul the marriage where the wife has become insane after marriage, because he has the option of divorce. The wife, on the contrary, can annul the marriage on the husband's insanity, regardless of its preceding the marriage or occurring afterwards, and even after consummation.

The Imamiyyah, the Hanbali, the Shafii and the Maliki schools concur that the wife is entitled to receive full mahr if the marriage has been consummated, and nothing if not.

Leprosy and Leukoderma

According to the Imamiyyah, leprosy and leukoderma are among defects that give the husband, not the wife, the right to annul the marriage on condition that such disease be antecedent to the marriage without the husband's knowledge. The right to annul the marriage does not exist for the wife if her husband suffers from any of these two diseases.

The Shafi'i, the Maliki and the Hanbali schools regard these two diseases among the causes that give both the man and the woman an equal right to annul marriage. On one of the spouses suffering from any of these two diseases, the other acquires the right to annul the contract. According to the Shafi’i and the Hanbali schools, the rule that applies in the case of insanity applies here as well.

The Malikis are of the opinion that the wife has the right of annulment equally whether the husband's leprosy antedates the marriage or follows it. As regard the husband's right. he can do so on the wife's being leprous before marriage or at the time of marriage. Regarding leukoderma, both the spouses have the choice of annulment if the disease precedes marriage, and if it occurs after marriage. Only the wife can exercise her choice and not the husband. The milder forms of leukoderma, on their appearance after marriage, do not give rise to any right. The judge gives a probationary period of one lunar year for those suffering from these two diseases for there is a possibility of cure.

Al-Ratq, al-Qarn, al-'Afal & al-'Ijda

...These four defects,4 which occur only among women give the husband according to the Malikis and the Hanbalis the right to annul the marriage contract. According to the Shafi'is, only in case of either al-ratq or al-qarn the husband has such a right; not when the wife suffers from al-'ifda or al-'afal. According to the Imamiyyah, such a legal effect follows only in the case of al-qarn or al-'ifda', not in the case of al-rarq or al-'afal. They also state that the husband, if he wishes, can annul the marriage contract when he finds blindness or visible lameness in the wife after the conclusion of the contract if he had no knowledge of it before. But either of the defects when found in the husband does not give such a right to the wife.

In our opinion, any disease, regardless of its being peculiar to one of the sexes or its being common to both of them, that is capable of being diagnosed and cured without leaving behind any deformity or defect, does not give rise to any legal right and its occurrence, like its non-occurrence, is legally without any effect. The reason behind this opinion is that, when a disease becomes curable, it becomes similar to any other ordinary disease that may affect any person. The time-honored significance attached by the legists to the above-mentioned defects is because they could not be treated surgically during the past.

Immediacy (al-Fawriyyah)

According to the Imamiyyah School, the choice of annulling the marriage exists so long as it is exercised immediately. Therefore, if the man or the woman, on knowing the defect, does not initiate the proceedings for annulling the marriage, the contract will become binding. The same rule applies for annulling the marriage in a case of deception

The author of al-Jawahir has said that ignorance regarding the right to annul the marriage, and even immediacy, is a good excuse, considering that this right has been given without imposing any conditions. He has also observed that the annulment of marriage, in all its forms does not depend on the judge. He has only the power to grant a probationary period in the case of impotence.

- 1. Al-Shahid al-Thani, in al-Masalik, quotes al-Shaykh al-Mufid: The criterion regarding the annulment of marriage by a woman is that her husband be incapable of intercourse with her irrespective of his ability regarding other women. The general notion supports this view.

- 2. A case of similar nature was brought before me and I referred the respondent tor medical check-up. The reply given was: Medical science has not yet devised any method for diagnosing impotence and the inability to have sexual intercourse is the only method of proving it.

- 3. After this, in the original Arabic text, the author in a note discusses the opinion of the Imami author of al-Jawahir relating to a case of allegation of impotence against the husband. This note, which extends over a page of the book, has been deleted in this translation. (Trans.)

- 4. Al-ratq means the presence of obstruction in the vaginal opening making intercourse difficult. al-qarn (lit. horn) means the presence of a horn-like protrusion inside the vaginal passage: Al-'afal means a fleshy obstruction in it. Al-'ifda · means the condition of merging of anal and vaginal passages. (Trans.)

The Option to Include Conditions (Khayar al-Shari)

The difference between shart al-khayar and khayar al-shari is that in the first the option to annul the marriage be included in the contract. For example, when the bride making the offer says, "I marry myself to you on the condition that I shall have the choice of annulling the marriage within three days," and the groom accepts with a qabiltu, or when the bride says, "I marry myself to you." and the groom, while accepting. says, "I accept on the condition that I shall have the choice to annul the marriage within such and such a time;" we see that in both the cases the option to annul the marriage is mentioned in the contract itself, and this, as has been mentioned earlier, results in the contract becoming null and void, according to all the five schools.

But in khayar al-shari(the option to annul the marriage is not mentioned as a condition per se in the contract. That which is mentioned as a condition in this case, is a particular quality-such as the bride's virginity or the groom's possessing a university degree-in a manner that if the said quality is not found to exist the other shall have the right to annul the contract. The schools have a difference of opinion in this regard.

The Hanafi’s have said: If a spouse mentions a negative condition in the contract, such as the absence of blindness or a disease, or a positive condition, such as presence of beauty, virginity, etc., and then the opposite of it comes to light, the contract will be valid. Regarding the condition, it will not apply except when the wife lays down a condition related to al-kafa'ah; such as a condition regarding lineage, profession or wealth. Here she has the right to annul the contract. But as regards the husband, any similar condition laid down by him will not be considered applicable because al-kafa'ah, as mentioned earlier, is a condition with reference to the husband, not the wife.

The Maliki, the Shafi’i, the Imamiyyah and the Hanbali schools have said: The condition is valid and if not satisfied results in the spouse laying the condition acquiring the option of either upholding or annulling the contract. The following tradition is cited in support of this view:

المسلمون عند شروطهمز

The Muslims are bound to (fulfil) their conditions.

Furthermore, they state, therefore said conditions are not against the spirit of the contract and do not contradict the Qur'an or the Prophet's Sunnah; neither they amount to changing halal into haram nor vice versa.

Deceit (Tadlis)

The Imamiyyah have discussed under this head the deception of the groom by the bride by either hiding a defect or by claiming a merit which is absent. In the first case, i.e., her hiding a defect and not mentioning it. The right to annul the contract will not accrue if he has not mentioned the absence of such a condition specifically in some way or another. A tradition is narrated from al-'Imam al-Sadiq ('a) which says:

في الرجل يتزوج إلى قوم فإذا امرأته عوراء ولم يبينوا له قال: لا ترد

About a person who marries i n a family and finds his wife to be one-eyed while they have not revealed it to him. The Imam said: The contract will not be withdrawn.

This is the opinion of all the schools.

As regards the second form of deceit i.e., where she claims a merit which in fact she does not possess-if the claimed merit has been mentioned as a condition in the contract, as said earlier, the condition will hold good according to all except the Hanafis. But if the claimed merit has not been mentioned in the contract as a condition-i.e., it has either been mentioned simply as a quality in the contract, or has been mentioned before the contract and the contract has been recited on that basis-then two different situations arise:

1. The merit has been mentioned in the contract as a quality, such as when the bride's attorney says, "I marry this maiden to you." or, "I marry this girl who is free from any defect to you." The Imamiyyah state that when it is known that she does not possess the mentioned merit, the husband has the choice to annul the contract.

2. The merit has neither been mentioned as a condition nor as a quality in the contract, but has been mentioned during the course of the marriage negotiations, such as when she herself or her attorney says that she is a virgin and has no defect, and then the contract is recited on the basis of this statement, so that it is understood that the contract has been recited on the girl's possessing this particular quality. In the legal sources that I have referred to, I have not come across anyone who has discussed this particular aspect except the Imamiyyah, among whom there is a difference of opinion as to whether in such a case the husband has an option of annulment. Some of them, including al-Sayyid Abu al-Hasan al-Ishfahani, in al-Wasilah, uphold the husband's option, because they point out, the negotiations of the contracting parties regarding a particular quality followed by the conclusion of the contract on their basis, makes this quality similar to an implicit condition. Others, who oppose this view, have said that it will have no effect unless the quality is mentioned in the contract or its presence in the contract established in some way or another. Al-Shahid al-Thani, in al-Masalik, holds the same opinion, on the basis that a contract is binding unless there is categorical proof of its invalidity and such a proof is not present in this case.

To summarize, if the quality has been recognized in the contract in one of the three ways (i.e., as a condition, as a quality mentioned in the contract. or when mentioned during pre-contract negotiations), the husband has the option to annul or retain the contract. If he retains it, he will not have any right of reducing her mahr, whatever the defect except when the condition was virginity. According to the Imamiyyah, in this case, the husband may reduce the mahr by an amount equal to the difference between a maiden's mahr and that of a woman who is not a maiden.

If he chooses to annul the contract, she will not be entitled to receive any mahr if marriage has not been consummated according to the Imamiyyah and those of the four schools who permit the option of annulment in case of deceit. On the marriage being annulled after consummation, she will receive the mahr al-mithl, and, according to the Shafi’i school. The husband paying such mahr will not claim it from the person responsible for the deceit.

The Imamiyyah observe: It depends upon who is responsible for the fraud. If it is the bride, she will not be entitled to any mahr, even after consummation. If someone else, then she will receive her full mahr, and the husband will claim this amount from the deceiver in accordance with the rule, 'the deceived will level his claim against the deceiver.'

Supplementary Issue

1. If after marriage, one of the spouses finds a defect in the other and claims that the contract was concluded after freedom from such defect was understood through one of the three above-mentioned modes, the other refuting, the burden of proof will lie with the claimant. If the claimant furnishes the proof, the judge will grant him/her the right to dissolve the marriage. If the claimant is unable to prove his/her claim, the respondent will take an oath and the case will be dismissed by the judge.

2. When a person marries a woman after it has been understood, through one of the three mentioned ways, that she is a virgin, and then finds her to be otherwise, he will not be entitled to dissolve the marriage, unless it is proved that her loss of virginity preceded the contract. This can be proved, either by her confession, or through evidence, or any such circumstantial evidence a may lead to certain knowledge-such as when after the marriage, intercourse takes place within a period during which the chances of her losing her virginity (due to other causes) do not exist.

If the issue stays unsettled and it cannot be proved in any of the said ways, whether she lost her virginity before the marriage or after it the right to dissolve the marriage will not accrue to the husband, because the presumption is that her loss of virginity does not precede the marriage, and also because the possibility of her having lost it due to an unknown reason-such as riding or jumping- also exists (al-Masalik of al-Shahid al-Thani. vol. 2, Chapter on Marriage in Imamiyyah Fiqh).

3. Al-Sayyid Abu al-Hasan al-Isfahani. in al-Wasilah. the chapter on marriage. writes: If a man marries a girl without virginity being mentioned in the negotiations previous to the marriage without the contract being based on it. and without it being included as a condition or a quality in the contract, but only believing her to be so because of her not having married anyone before him. He will not have the right to dissolve the marriage if it is later proved that she was not a virgin. But he has the right to partly reduce her mahr. This reduction will be proportional to the difference between the mahr of her like if a virgin and if not a virgin. Therefore, if her mahr be fixed at 100 and the mahr of a virgin like her is 80 and a non-maiden like her is 60, he will reduce from 100 a fourth part, i.e. 25, with 75 remaining as mahr.

Accordingly, al-Sayyid al-'Isfahani envisages four possible conditions regarding virginity:

i. Where virginity is mentioned m the contract as a condition:

ii. Where it is mentioned in the contract as a quality:

iii. Where it is mentioned during settlement of marriage and the contract is based upon it;

iv. Where he marries her believing her to be a virgin and does not mention it, neither before the contract nor in the contract.

In the first three conditions, the husband has the choice to annul the marriage; in the fourth, he has no such choice, but can reduce a part of the mahr in the above-mentioned manner.

Al- Mahr

Mahr is one of the (pecuniary) rights of a wife established in the Qur'An and the Sunnah, and on which there is consensus (ijma') among Muslims.

There are two kinds of mahr: al-musamma and mahr al-mithl.

1. Al-Mahr al-Musamma:

Al-mahr al-musamma is the mahr agreed by the couple and specified by them in the contract. This mahr does not have any upper limit, by consensus of all the schools, in accordance with the following verse of the Qur'an:

وَإِنْ أَرَدْتُمُ اسْتِبْدَالَ زَوْجٍ مَكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنْطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا

And if you wish to take a wife in place of another and have given one of them a heap of gold, then take not from it a thing. (4:20)

But the schools differ regarding the lower limit. The Shafi'i, the Hanafi and the Imamiyyah schools observe: Everything which is valid as price in a contract of sale is valid as mahr in a marriage contract, though it be a single morsel.

The minimum mahr according to the Hanafi is ten dirhams, and a contract concluded for a lesser amount is valid and the minimum-i.e. ten dirhams-shall be payable.

The Malikis have said: The minimum is three dirhams. Therefore, if something less is specified and later the marriage is consummated, the husband will pay her three dirhams; if it has not been consummated, he has a choice between giving her three dirhams or dissolving the contract by paying her half the specified mahr.

Conditions of Mahr

It is valid that mahr be specified in terms of currency, jewelry, farmland, cattle, profit, trade commodities and other things of value. It is necessary that the value of the mahr be known, either exactly (e.g. a thousand Lira) or approximately (e.g. a particular piece of gold or a particular stock of wheat). If the mahr is totally vague, so that its value is unascertainable in any manner, according to all the schools except the Maliki, the contract is valid and the mahr void. The Malikis observe: The contract is invalid and will be considered void before consummation but if consummation has occurred it will be valid on the basis of mahr al-mithl.

Among the conditions is the being halal of the mahr and its being valued in terms of a commodity whose transaction is considered legal by the Islamic Shari'ah. Therefore, if it is mentioned in terms of liquor, swine or m’aytah or anything else whose ownership is invalid, according to the Malikis the contract shall be invalid if it has not been consummated, and if consummated, shall be valid and the mahr al-mithl shall be payable.

The Shafi'i, the Hanafi, the Hanbali and most of the Imamiyyah legists have said: The contract is valid and she shall be entitled to the mahr al-mithl. Some Imamiyyah legists have entitled her to the mahr al-mithl only if the marriage has been consummated, while others amongst them lay no such condition and are in consonance with the other four schools.

If the mahr is usurped property, such as when she is married for a farm as her mahr and later it is known to belong to the groom's father or someone else, the Malikis have said: If the farm is known to the two and both happen to be sane, the contract shall be invalid if not consummated and if consummated shall be considered valid on the basis of mahr al-mithl. The Shafi'i and the Hanbali schools regard the contract as valid and entitle her to the mahr al-mithl. The Imamiyyah and the Hanafi schools are of the opinion that the contract is unconditionally valid; but regarding the mahr they observe: If the owner agrees, she shall receive the farm itself; if the owner ref uses, she shall be entitled to receive a similar farm or its price because the stipulated mahr in this case is capable of being validly owned though ownership does not materialize, in contra t with liquor or swine which cannot be owned at all.

Mahr al-Mithl

The concept of mahr al-mithl is relevant in the following cases:

1. There is consensus among the schools that mahr is not an essential ingredient (rukn) of a marriage contract, as price is in a contract of sale. On the contrary, mahr is only one of the effects of a marriage contract, and even without its stipulation the contract is valid. Thus, mahr al-mithl shall be payable on consummation (when mahr was not specified) and if he divorces her before the consummation of marriage, she shall not be entitled to any mahr, but will receive al-muat'ah, which is a gift given by the husband to his wife (at the time of divorce) in accordance with his status, such as a ring or a dress, etc. If they both agree on this gift it will suffice: otherwise it will be fixed by the judge. The issue whether the couple's retiring to seclusion (khalwah) is tantamount to consummation or not, will be discussed later.

The Hanafi and the Hanbali schools observe: If the husband or the wife dies before consummation, full mahr al-mithl shall be payable as if the marriage had been consummated (Majma' al-'anhur and al-Mughni, chapters on marriage).

According to the Malikis and the Imamiyyah, no mahr is payable if any of the two dies before consummation (al-Mughni and al-Wasilah).

The Shafi'ls have two views: (a) That the mahr shall be payable; (b) no mahr shall be paid (Maqsad al-nabih).

2. If the marriage contract is concluded with specification of mahr in terms of a commodity which cannot be owned, e.g. liquor or swine, as mentioned earlier.

3. All the schools agree that mahr al-mithl becomes wajib as a result of intercourse-by-mistake. Intercourse-by-mistake is intercourse with someone with whom it is not legally permissible, though without the knowledge of it being so; such as a person marrying a woman without the knowledge of her being his foster sister and coming to know of it later, or his having intercourse with her after both have appointed their deputies for reciting the contract, thinking it to be sufficient for establishing sexual contact. In other words, intercourse-by-mistake is intercourse without proper marriage, though the presence of a legal excuse precludes penal action. On this account the Imamiyyah include under this head intercourse by a person who is either insane or intoxicated or in sleep.

4. The Imamiyyah, the Shafi'i and the Hanbali schools have said: One who coerces a woman to fornicate shall bave to pay mahr al-mithl; but if she had yielded voluntarily she shall not be entitled to anything.

5. A marriage concluded on the condition that no mahr shall be paid is valid according to all except the Malikis who say: The contract shall be invalid if not consummated and valid if consummated due to the obligation to pay mahr al-mithl. A large number of Imamiyyah legists have said: He shall give her something, be it much or little. Traditions from the Ahl al-Bayt ('a) support this view.

According to the Imamiyyah and the Hanafi schools, if an invalid marriage contract is recited with a certain mahr and the marriage is consummated, she shall be entitled to receive the mahr stipulated even though it was less than the mahr al-mithl because of her prior consent. But if the stipulated mahr is more, she shall receive only the mahr al-mithl, because she is not entitled to receive more than mahr al-mithl.

Mahr al-mithl is computed by the Hanafis by taking into account the mahr of her equals from the paternal, not the maternal side. According to the Malikis, her mahr shall be commensurate with her physical and mental qualities. The Shafi’is, take the mahr al-mithl of the wives of her paternal relatives as reference, i.e. the wife of her brother, that of her paternal uncle, then her sister etc. For the Hanbalis, the judges shall compute the mahr al-mithl by taking into account the mahr of her female relations, such as the mother or maternal aunt.

The Imamiyyah have said: There is no fixed way of determining mahr al-mithl in the Shari'ah. It is estimated by those who know her status, descent, and all those aspects which influence the increase or decrease of mahr. But this mahr shall not exceed the mahr al-sunnah, which is equal to five hundred dirharms.

Immediate and Deferred Payment of Mahr

All the schools concur regarding the validity of deferred payment of mahr, fully or partly, provided that the period be known, either exactly (such as when it is said, "I marry you for a hundred, of which fifty shall be paid immediately and the rest after one year") or in an indeterminate manner (such as when it is said, "The mahr is deferred till death or divorce"). The Shafi’i school disapproves the latter form of deferment.

But if the period is so mentioned that it is totally vague, such as when it is stated that the payment of mahr shall be made on the return of a certain traveler, the time clause shall be void.1

The Imamiyyah and the Hanbali schools have said: If the mahr has been mentioned without specifying whether its payment is immediate or deferred, the entire mahr shall be immediately payable.

According to the Hanafis, the local practice shall be observed; i.e. the portions to be immediately paid and deferred will follow the local custom.

The Hanafis have also said: If the mahr is deferred without mentioning the period of deferment (such as when it is said, "Half of it is immediately payable and the rest deferred"), the full mahr shall be immediately payable.

The Hanbalis observe: The mahr can be deferred until death or divorce.

The Malikis are of the opinion that such a marriage is invalid; it is voidable before consummation, though valid after it on the basis of mahr al-mithl.

The Shafi’is state: If the period is known not exactly but in an indeterminate manner (such as until death or divorce) the mahr stipulated shall become invalid and the mahr al-mithl will be payable (al-Fiqh 'ala al-madhahib al-'arba'ah).

The Hanafi and the Hanbali schools have said: If the bride's father apportions for himself, as a condition. A part of her mahr, the mahr is valid and the condition shall have to be complied with.

The Shafi’is say: The mahr stipulated shall become invalid and mahr al-mithl shall be payable.

According to the Malikis, if this condition is included at the time of marriage, the bride shall receive the entire mahr, including her father's share; and if the condition is laid after the marriage, the bride's father shall receive his share (al-Mughni and Bidayat al-mujtahid).

The Imamiyyah observe: If her mahr has been specified with a fixed portion of it mentioned for her father, she shall get her full stipulated mahr and her father will not get his share.

The Wife's Right to Refuse Her Conjugal Society

There is consensus among the schools that the wife, simply after the recital of the contract, has the right to demand her full specified mahr immediately and to ref use her conjugal society until the mahr is paid. But, if she surrenders once willingly without demanding the mahr, she loses her right of refusal; all concur on this issue except Abu Hanifah. He observes: She has the right to ref use even after surrender. Abu Hanifah's disciples, Muhammad and Abu Yusuf oppose his view.

The wife is entitled to receive maintenance if she ref uses her conjugal society until the payment of mahr; because her refusal in such a case is legally valid. But if she refuses to fulfill her conjugal duties after receiving mahr or after voluntary surrender, she shall not be entitled to maintenance except according to Abu Hanifah.

If the wife be a minor unfit for marital relations and the husband a major, it is up to her wali to demand the mahr; it is not necessary that he wait until her maturity. Similarly, if the wife be a major and the husband a minor, the wife has the right to demand the mahr, from his wali, and it is not necessary for her to wait until his maturity.

The Imamiyyah and the Shafi schools state: If a dispute arises between the couple, with the wife refusing to surrender until payment of mahr and the husband refusing payment until her surrender, the husband shall be compelled to deposit the mahr with a trustee and the wife will be asked to surrender. Then if she surrenders, she shall receive her mahr and be entitled to maintenance. But if she ref uses, she shall not receive the mahr and will not be entitled to any maintenance. If the husband refuses to deposit the mahr, he will be ordered to pay her maintenance on her demanding it.

The Hanafi and the Maliki schools state: The payment of mahr has precedence over the woman's surrender, and the man may not say, "I will not pay the mahr until she surrenders". If he insists on this, he shall be ordered to pay her maintenance, and if she after receiving the mahr, refuses her conjugal society, the husband is not entitled to claim the return of mahr.

According to the Hanbali School, the husband shall be first compelled to pay the mahr.

This opinion concurs with the Hanafi view except that according to the Hanbalis, if she refuses her conjugal society after receiving the mahr, he has the right to demand the return of the mahr. (Maqsad al-nabih, M ajma ' al-'anhur and al-Fiqh 'ala al-madhahib al-'arba'ah)

Inability of the Husband to Pay the Mahr

The Imamiyyah and the Hanafi schools observe: If the husband is unable to pay the mahr, the wife is not entitled to dissolve the marriage, and the judge, too, cannot pronounce her divorce. But she has the right to deny her conjugal society.

The Malikis state: If his inability is proved before the consummation of marriage, the judge will grant him time according to his own discretion.

If, after the expiry of such period his inability continues, the judge will pronounce divorce, or the wife will divorce herself and the judge shall endorse its validity. But if he has consummated the marriage, she can in no way dissolve it.

The Shafi’i school is of the opinion that if his inability is proved while the marriage has not been consummated, she can dissolve it. But if it has been, she cannot dissolve it.

The Hanbalis state: She may dissolve the marriage even after its consummation, provided she had no knowledge of his inability before the marriage. Therefore, if she had the knowledge the question of dissolving the marriage does not arise. Even when the marriage is dissolvable, only the judge has the authority to do so.

The Father and His Daughter-in- Law's Mahr

The Shafi’i the Maliki and the Hanbali schools hold that if a father concludes the marriage of his pauper son, he shall be liable for payment of mahr even if the son be a major and the father acts as his wali for the marriage as his son's deputy. If the father dies before mahr is paid, which was wajib upon him, it shall be paid out of his legacy.

The Hanafi school observes: The payment of mahr is not wajib upon the father, regardless of whether the son is a well-to-do person or a pauper, a major or a minor (al-'Ahwal al-shakhiyyah by Abu Zuhrah).

The Imamiyyah state: If the minor son possesses property and his father gets him married the mahr shall be paid from the son's assets and the father shall not be liable at all. But if the minor has no property at the time of marriage, the father shall be liable to pay the mahr; the husband (son) shall not be liable even if he becomes a man of means later. Also, the father is not required to pay the mahr of his major son's wife unless he guarantees it on the conclusion of the contract.

Consummation and Mahr

Sex relations with a woman fall within these three categories:

1. Fornication (zina) to which she surrenders with the knowledge of its being haram. In this instance, she will not get any mahr; rather shall be liable to penal action.

2. As a result of a misunderstanding on her behalf of its being legal, followed by later knowledge that it was haram. Here, her act has no penal consequences and she is entitled to receive mahr al-mithl, irrespective of the man's knowledge of the act being haram.

3. As a result of a valid marriage. In this case she is entitled to receive the specified mahr if it has been validly stipulated, and the mahr al-mithl if no mahr was specified in the contract or was specified in an invalid form (e.g. in terms of liquor or swine).

If one of the spouses dies before consummation, then, according to the four schools, she is entitled to receive the entire specified mahr. The Imamiyyah jurists differ. Some of them, in consonance with the four Sunni schools entitle her to the entire specified mahr, while others (including al-Sayyid Abu al-Hasan al-Isfahani in his al-Wasilah and Shaykh Ahmad Kashif al-Ghita' in Safinat al-najat) to half the specified mahr on a par with a divorcee.

Wife's Crime Against Husband

The Shafi, the Maliki and the Hanhali schools have observed: If a wife kills her husband before the consummation of marriage she shall not be entitled to any mahr According to the Hanafi and the Imamiyyah schools. she shall not be deprived of her right to mahr, though she loses her right to inherit him.

Al-Khalwah

According to the Shafi’i school and the majority of Imamiyyah jurists, the mere enjoyment of privacy or retirement by the couple has no effect on mahr nor any other consequence. Only the consummation of marriage is consequential in this regard.

The Hanafi and the Hanbali schools have observed: 'Valid seclusion· confirms mahr, establishes descent, and requires observance of 'iddah in case of divorce, even though such seclusion does not result in consummation. The Hanbalis also consider gazing and touching with a sexual intent and kissing on a par with consummation and therefore sufficient for confirming mahr. By 'valid seclusion' is meant the seclusion of the couple in a place where they are secure from observation by others and where there is no impediment to intercourse.

The Malikis state: If the period of seclusion is prolonged, mahr is established even without consummation. Some of them have fixed the period of 'prolonged seclusion' at one complete year (al-'Ahwal al-shakhsiyyah of Abu Zuhrah: Rahmat al-'ummah of al-Dimashqi).

Half the Mahr

There is consensus among the school that if mahr is specified at the time of the contract and then the husband pronounces divorce without consummation, or seclusion-for those who consider the latter to be consequential-half the mahr shall be payable. But if the contract is recited without specifying mahr , she shall get nothing except al-mut'ah, as mentioned earlier in accordance with the following verse:

لَا جُنَاحَ عَلَيْكُمْ إِنْ طَلَّقْتُمُ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً ۚ وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ ۖ حَقًّا عَلَى الْمُحْسِنِينَ

وَإِنْ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ

There is no blame on you if you divorce women when you have not touched them or appointed for them a portion: yet make provision for them, the wealthy man according to his means and the needy man according to his means, a provision according to honorable usage: (this is) a duty on the good -doers. And if you divorce them before you have touched them and you have appointed for them a portion, then (pay them) half of what you have appointed... (2:236--37)

Therefore, if the husband, not having paid anything to the wife whose mahr has been specified, divorces her before consummating the marriage, he shall pay her half the mahr. But if he has paid the entire mahr, half of it shall be returned if it still exists and the equivalent of it in cash or kind if it has perished.

If the husband and wife do not specify mahr in the contract but later agree upon it and then the husband divorces her before consummation, in this case, shall she be entitled to receive half of the mahr agreed upon if the mahr had been specified in the contract, or shall she get nothing except the mut'ah, as if they had not agreed upon mahr later?

The Shafi’i, the Imamiyyah 2 and the Maliki schools are of the opinion that she is entitled to half the mahr agreed upon, and according to the Hanbali book al-Mughni (vol. 6, chapter on marriage), she is entitled to half the mahr agreed upon after the contract. but not mut'ah.

This discussion was related to the right to full mahr and the right to half mahr. Instances of annulment of the right to full mahr can be found in our above discussion on 'defects'.

An Exceptional Case

If the husband (by his finger or something else) causes the wife's loss of virginity, will it be considered consummation for the sake of confirming mahr?

There is no doubt that such an act followed by intercourse has all the legal consequences such as mahr, 'iddah, establishment of parenthood and so on.

But the question is, if he, without intercourse, divorces her after causing her loss of virginity in this manner, does it confirm only half the specified mahr because the marriage has not been consummated, or will the full mahr be payable on account of her loss of virginity?

I put this question to Ayatullah al-Sayyid Abu al-Qasim al-Khu'i. This was his reply: "The husband is liable to pay the full mahr because of the loss of virginity, on the basis of the tradition narrated by 'Ali ibn Ri'ab in which the Imam ('a) has stated: If they (wives) are as they were when they joined the husband, then she will get half the specified mahr. That which is understood from this conditional clause is that after divorce only half the mahr is to be paid if the wife's condition at the time of divorce is the same as it was when she joined him. Therefore, due to the general meaning connoted, it indicates that the wife, if she is not what she was, the husband is liable to pay the entire mahr, and it shall not be reduced to half irrespective of whether the change and loss of virginity occurs as a result of intercourse or some other factor."3

- 1. I had stated in my book al-Fusal al-Shariyyah that the deferring of mahr till death or divorce is not correct due to the need to avoid vagueness; is not the period of deferment. Later on, it occurred to me that it is correct. hecauc rnahr can stand vagucnc:-.s to a greater extent than price in a transaction of sale, and also becausc it is not a compensation ('nwad ) in the real sense of the term. Thus, it is sufficient for mahr that it be determinable by sight (i.e. without being weighed or measured) or receivable or that it be teaching the wife of that which the husband knows of the Qur'an. Apart from this, one of the two terms (death or divorce) is in fact known, though not to the parties to the contract. Thus one of these two events, death or divorce, will inevitably occur. Moreover, it is also valid that a marriage be concluded without mentioning the mahr, as well as when a third person is delegated to determine the mahr.

- 2. The author of al-Jawahir has observed about the third problem relating to the issue of al-tafwid : whenever there is an agreement on a thing, that thing shall be the mahr and shall in fact become the property of the wife, either by itself or in the form of a debt, immediately or in a deferred form, and all those rules which apply to mahr specified in the contract, shall apply to it.

- 3. It has been observed in a tradition on the authority of Yunus ibn Ya'qub that:
لا يوجب الصداق إلا الوقاع في الفرج

(Nothing makes mahr wajib except vaginal intercourse).

- This tradition is an explanation of the one narrated by Ibn Ri'ab, and on this basis the Imam's words:
فإن كن كما دخلن عليه

(If they are as they were when they joined him'), would appear to include only the natural form of copulation, not those instances where virginity is lost as a result of unnatural means, and the tradition narrated by Ibn Ri'ab fails to provide a valid basis for argument. Whatever be the case, the fatwa of al-Sayyid al-Khu'i concurs with those of al-Sayyid al-Hakim in Minhaj al-salihin (where he states: "If he causes her to lose her virginity by using his finger without her consent, the mahr shall be payable") and al-Shaykh Ahmad Kashif al-Ghita' in Safinat al-najat (chapter on hud’ud ).

Disagreement between the Spouses

The spouses may at times differ regarding the consummation of marriage and sometimes regarding the specification of mahr, its value, its receipt by the wife or as to whether that which was received was given as a present or as mahr. Here we have the following issues:

1. Where the husband and wife differ regarding the consummation, the Hanafi school has two opinions, the more preferable of which is: If the wife claims the occurrence of consummation or seclusion, which the husband refutes. the wife's word shall be accepted and the burden of proof will rest on the husband, because it is she who actually contests the reduction of half her mahr (al-Fiqh 'ala al-madhahib al-'arbah).

The Malikis say: If the wife visits the husband at his home and then claims consummation while he denies it, her word shall be accepted on oath. If the husband visits her at her place and then she claims consummation while he denies it. his word shall be accepted on oath. And similarly, if they both go to see someone else at his place and she then claims consummation while he denies it, his word shall be accepted.

According to the Shafi’is, m case of dispute regarding consummation, the husband's word shall be accepted (Maqsad al-nabih).

The Imamiyyah observe: If the spouses differ regarding consummation and the wife denies its taking place in order to preserve her right to deny him her conjugal society until payment of her mahr, agreed to be paid promptly, and he claims consummation in order to establish his claim that her refusal is without legal justification, or if he denies consummation seeking to reduce his liability to half the mahr and she claims consummation to have occurred, seeking to establish her right to full mahr and maintenance during the 'iddah, in both these instances the word of the party denying consummation shall be accepted irrespective of whether it is the husband or the wife; and, as said earlier, seclusion has no effect.

This may lead a question to arise in one's mind: how do the Imamiyyah jurists accept in this case the word of the party denying consummation, while, as mentioned earlier, they accept the word of even an impotent man claiming consummation?

The answer is that the issue here is the act of consummation, which is an occurrence and an event claimed to have happened.

The presumption is that an event claimed to have happened has not occurred, and therefore the burden of proof rests on the party claiming its occurrence. That which was in dispute in the issue regarding impotence is the presence of this defect, which justifies dissolution of marriage. Therefore, the wife's denial of consummation implies that she is claiming the presence of that defect, and thereby becoming the claimant. The husband's statement that consummation has occurred implies that he refutes the claim of the presence of the said defect, thereby challenging the claim.

2. If they differ regarding the fact of stipulation of mahr, with one of them claiming that valid mahr was stipulated prior to the contract, while the other refutes it, saying that the contract was recited without mahr stipulation, the Imamiyyah and the Hanafi schools observe: The burden of proof rests on the party claiming stipulation and the party refuting it shall take an oath. But if the wife claims that the mahr has been specified and the husband refutes it, and takes an oath after her failure to prove the stipulation, she shall receive mahr al-mithl if the marriage has been consummated, on condition that mahr al-mithl does not exceed the amount she claims as having been specified. Thus, if she claims that the contract was concluded with a mahr of ten units while he denies it and the mahr al-mithl happens to be twenty units, she shall receive only ten, in view of her own admission that she is not entitled to more.

The Shafi’is are of the opinion that both the parties are claimants, i.e. each one of them is a claimant as well as a refuter. Therefore, if one of them furnishes proof while the other fails to do so, the judgement shall be given in favor of the party furnishing proof, and if both furnish proof or both fail to do so, they shall both take oath and mahr al-mithl shall be confirmed.

3. If both agree that mahr has been specified, but disagree regarding its amount, here the Hanafi and the Hanbali schools are of the opinion that the word of the party claiming an amount equal to the mahr al-mithl shall be accepted. Therefore, if she claims the mahr al-mithl or something else, her claim shall be accepted. If the husband's claim amounts to the mahr al-mithl or more, his word shall be accepted. (al-Mughni and Ibn 'Abidin).

The Shafi’is state: Both are claimants, and if both are unable to furnish proof, mahr al-mithl shall be confirmed after their oath.

According to the Imamiyyah and the Maliki schools, the wife is the claimant and the burden of proof shall rest on her. The husband challenging the claim shall take an oath.

4. Where the spouses disagree regarding the actual payment of mahr, with the wife denying that she received it and the husband claiming to have paid it, the Imamiyyah, the Shafi’i and the Hanbali school have observed: The wife's word shall be accepted because she challenges the husband's claim who shall have to furnish proof. The Hanafi and the Maliki schools observe: The wife's word shall be accepted if the dispute arises before consummation and the husband's word if consummation has occurred.

5. When both admit that she has received something and the wife claims that it was a present, while the husband claims it to have been mahr, the Imamiyyah and the Hanafi schools observe: The husband's word shall be accepted because he knows his own intention. Therefore, he shall take an oath and it is for the wife to furnish proof that it was a present (al-Jawahir and Ibn 'Abidin).

Such is the case when there is no circumstantial evidence such a local custom or a particular circumstance of the husband showing that it was a present, such as when it is something eatable or a gift of dress, or what the Lebanese call al-'alomah (mark or token) and the Egyptians al-shabakah (net), which is a ring or something similar given as a gift to the fiancée by the fiancé so that she may decline other proposals. Therefore, if the thing is something of this kind, the word of the wife shall be accepted.

If the fiancée changes her mind about the marriage after having accepted the ring but before the contract, she is liable to return the ring on his demanding it, and if the fiancé changes his mind, the custom gives him no right to claim it back. But the rules of the Shariah do not recognize any difference between his or her changing his/her mind and therefore she is liable to return the gift as long as it is with her and she has not sold it or gifted it or changed its form.

Dowry (al-Jihaz)

The Imamiyyah and the Hanafi schools concur that mahr is the sole property of the wife and one of her rights. She can use it according to her own will, bequeathing it or buying her dowry with it, or saving it for her own use at her pleasure, and no one has the right to question or oppose her. The responsibility of furnishing their home lies solely on the husband and she is in no way responsible for anything, because maintenance, in all its different forms, is required only of the husband.

The Malikis observe: It is incumbent upon the wife to buy from the mahr she has received all those things which women of her status buy as their dowry, and if she has not received any mahr then it is not wajib for her to bring dowry except in the two cases: (1) if the local custom considers it compulsory for the wife to bring dowry even though she has not received anything; (2) if the husband sets the condition that she furnish their home with her own means.

If the husband and wife dispute regarding the ownership of any household item, it will be seen whether the item is used only by men or women or by both. Thus three different situations arise:

(1) Where the item is used by men only, such as his clothes, his books, his measuring instruments if he is an engineer or his medical apparatus if a doctor. The ownership of this kind of items shall be determined by accepting the word of the husband under oath, except when the wife furnishes proof that she is the owner. This is the opinion of the Imamiyyah and the Hanafi schools.

(2) Where the item is used only by women, such as her clothes, jewelry, sewing machine, cosmetics. etc., the ownership of these shall be determined by accepting her word under oath, except when the husband furnishes proof to the contrary.

(3) Where the item is used by both of them, such as carpets, curtains, etc. It shall be given to the party furnishing proof of its ownership. But if both are unable to furnish proof, each of them shall testify under oath that the said item belongs to him/her; then the items will be equally divided between them. If one of the parties takes an oath while the other abstains, the party taking oath shall be given the item. This is the opinion of the Imamiyyah.

Abu Hanifah and his pupil Muhammad are of the view that the husband's word shall be accepted regarding items of common use.

The Shafi’is say: If the husband and wife dispute regarding the ownership of household goods, these shall be divided between them irrespective of their being of individual or common use. (Mulhaqat al-Sayyid Kazim. chapter on qada'; al-‘Ahwal al-shakhsiyyah: Abu Zuhrah)

Lineage (Al-Nasab)

Introduction

Every man is free within the limits of law and morality to say whatever he wants, and no one is entitled to stop him from doing so. But it is also not incumbent upon anyone to heed his statements or to consider them with respect. This is true irrespective of the speaker's station, whether high or low, venerable or otherwise, when his speech pertains to something outside the area of his specialty. Therefore, if an authority on law gives an opinion on a question of medicine or agriculture, it is not correct for a plaintiff to cite that opinion in support of his case, nor is it correct for a judge to base his judgment upon it.

Similarly, in the case of apostles, prophets, Imams and authorities on law, it is not obligatory upon anyone to believe their statements about issues concerning physical nature, such as the creation of the earth and the heavens, the distances between them, their origin and end, the elements of which they are composed and the forces therein. Sacred personalities at times explained a certain phenomenon in their capacity as a sacred authority; at other times they spoke about things in their personal capacity, like all other human beings who say what they conjecture or hear from others. Therefore, when they speak in their religious capacity, it is wajib upon us to listen to them and to obey them, as long as their religious decree does not exceed the limits of their specialty. But when they speak in their personal capacity, it is not wajib to follow them, because, here, their word is not regarding religion or things related to it.1

Thus a legislating authority, religious or secular, should limit itself to framing and expounding laws and regulations, with the aim of encouraging some acts and discouraging others, and explaining their causes and effects, approving one contract as binding together with its terms and conditions and invalidating another as not binding, and issues of this kind which safeguard the social order and ensure the common good.

But as regards natural phenomenon-such as the minimum or the maximum period of pregnancy-it is not within the domain of a lawgiver to either affirm or deny them or to make amendments. This is because the realities of nature and their causes are not alterable; they do not change due to the change of conditions and passage of time in contrast with social laws, which are laid down, abrogated and modified by the lawgiver's will.

It is obvious that a lawgiver does make external realities of nature the subject of his laws, for instance, when he lays down that a child in the womb has the right to inherit from the father, that the birth of a child leads to an increase in the statutory allowance of the mother, or that when the wheat produce exceeds the consumption of farmers, the surplus should be taken into government custody, etc. But the explanation of natural phenomena relating to the subject of laws is the task of specialists. If there is anything in the statements of legal authorities explaining or defining such phenomena, it is nothing but an attestation of what specialists have reported. Therefore, when a judge refers an issue for specialist opinion and the fact is known showing the error of its description by legists, it is not wajib that their observations be followed, because we know with certainty that the legists have spoken regarding a phenomenon which pre-existed legislation; the intent of their remarks was to explain this pre-existing fact. Thus, when the opposite is proved, to follow their word would be equivalent to acting against their purpose and intention. The legists themselves name this kind of mistake "mistake in application"; it is similar to the mistake of a person who asks for a cup while pointing towards a stone resembling it.

After this introduction, we move on to our actual subject. As the child is the subject of many Islamic laws-such as its right to inherit from the father; the illegitimacy of its marriage with it sibling, the father's right to act as a guardian of its person and property until maturity; the wajib of its maintenance, and such other legal and moral rights-the legists are forced to determine the minimum and the maximum period of gestation. It is obvious that this issue pertains to the specialty of doctors of medicine not of law, and, therefore, it is not necessary that the word of legists be acted upon if it contradicts actual fact and reality. Because, in such circumstances, the logic of reality is stronger than their logic, and its proof prevails over their evidence. When the opinions of natural philosophers and physical scientists collapse before reality, it is more in order that the observations of those who are in no way connected with a particular field of specialization should collapse before facts. We mention here the views of different schools of Islamic law regarding the minimum and maximum period of gestation, on the assumption that one is not obliged to follow these views when they are not in consonance with facts.

The Minimum Period of Gestation

The opinion of all the legal schools of Islam, both Sunni and Shi'i, is that the minimum gestation period is six month because the 15th verse of the Surat al-'Ahqaf expressly states that the gestation period (muddat al-haml) along with the period of suckling (rida'ah) is thirty months

وَحَمْلُهُ وَفِصَالُهُ ثَلَاثُونَ شَهْرًا

and the 14th verse of the Swat Luqman states that the period of suckling is to be two complete years

وَفِصَالُهُ فِي عَامَيْنِ.

When two years are subtracted from thirty months, the remainder is six months, which is the minimum period of gestation. Modern medicine supports this view and the French legislature has also adopted it.

The following rules are derived from the above observations:

1. When within six months of her marriage a woman gives birth to a child, the child will not be attributed to her husband. Al-Shaykh al-Mufid and al-Shaykh al-Tusi-both lmami-and al-Shaykh Muhyi al-Din 'Abd al-Hamid of the Hanafi School have said that the choice of denying or accepting the child's parentage lies with the husband. If he accepts the child as his, the child shall be considered his legitimate offspring, and shall enjoy all the rights of a legitimate child. Similarly, the father shall have all those powers over it a over the other legitimate children.2

When the couple differs regarding the period of their conjugal relationship (she claiming that they existed since six months or more, and he denying it, claiming the period to be shorter than six months and denying the child to be his), Abu Hanifah is of the opinion that the wife's word shall be considered true and acted upon without her taking an oath.3

The Imamiyyah have said: If circumstantial evidence favors his or her contention, it will be acted upon, and if no such evidence exists, the judge shall accept the wife's word after her taking an oath that sex relations with the husband had existed since six months; then the child shall be attributed to the husband.4

2. When a husband divorces his wife after intercourse and she, after observing the 'iddah, marries another and gives birth to a child within six months of her second marriage, if six months or more-but not exceeding the maximum period of gestation-have elapsed since her intercourse with the first husband, the child shall be attributed to the former husband. But if more than six months have elapsed after her second marriage, the child is attributed to the second husband.

3. When a woman contracts a second marriage after divorce and then gives birth to a child within six months of intercourse with the second husband, if more than the maximum period of gestation has elapsed since intercourse with the former husband, the child shall not be attributed to any of them. For example, if eight months after divorce a woman marries another person and after living with him for five months gives birth to a child, supposing the maximum period of gestation to be a year, it is not possible to attribute the child to the former husband, because more than a year has elapsed since they had intercourse. It is neither possible to attribute the child to her present husband because six months have not yet passed since their marriage.

The Maximum Period of Gestation According to Ahl al-Sunnah

Abu Hanifah ha' said: The maximum gestation period is two years on account of a tradition narrated by 'A'ishah that a woman does not carry a child in her womb for more than two years. Malik, al-Shafi’i and Ibn Hanbal state the period to be four years, on the basis that the wife of 'Ajlan carried her child for four years before delivery. It is strange that the wife of his son, Muhammad, had a similar gestation period. In fact all women of Bani 'Ajlan have a gestation period of four years,5 which indicates God's power over His creation.

This argument, if it proves anything, shows the piousness of these legists and their good intentions, and how often the logic of piety prevails over the logic of reality.

'Abbad ibn 'Awwam puts the maximum period of gestation at 5 years. al-Zuhari at 7 years, and according to Abii 'Ubayd there is no maximum period of gestation.6

It follows from these conflicting opinions, that if a person divorces his wife or dies and she, without marrying again after him, bears a child, the child shall be attributed to him if born after: two years, according to Abu Hanifah; four years, according to Shafi'is, Malikis and Hanbalis; five years, according to Ibn 'Awwam; seven years according to al-Zuhari; and twenty years according to Abu 'Ubayd.

Legislation in Egypt relieves us from a critical examination of these varied opinions. The Egyptian Shari'ah courts followed the Hanafi code until the passing of Act 25 of 1929. Section 15 of this Act categorically mentions that the maximum period of gestation is one year.7

The Maximum Gestation Period According to the Shi'ah

There is a difference of opinion among Imami scholars regarding the maximum period of gestation. Most of them have stated it to be nine months, some of them ten months, and some others a year. Thus there is a consensus that the period does not exceed a year, even by an hour. Therefore, if a woman, divorced or widowed, gives birth to a child after one year, the child shall not be attributed to the husband, because there is a tradition from al-'Imam al-Sadiq (a):

إذا طلق الرجل زوجته وقالت أنا حبلى وجاءت به لأكثر من سنة ولو ساعة واحدة لم تصدق في دعواها

If a man divorces his wife and she claims to be pregnant, and then gives birth to a child after more than a year has passed , even though by an hour, her claim shall not be accepted. 8

Walad al- Shubhah

Shubhah -that is a mistake which leads a man to have intercourse with a woman haram to him, as a result of his ignorance of her being such-is of two kinds: subhat 'aqd(mistake of contract) and sublat fil (mistake of act).

1. 'Mistake of contract' occurs where a man concludes a marriage contract with a woman in a manner in which legal contracts of marriage are concluded and later it is known that the contract was invalid due to the presence of a cause sufficient to invalidate the contract.

2. 'Mistake of act' occurs where a person copulates with a woman without there being between them any contract, valid or invalid, and he does so either without conscious attention or thinking that she is fulfill to him, and later the opposite is discovered.

Sexual intercourse by a lunatic, or an intoxicated person, or a person in sleep, or a man under the false impression that the woman is his wife, comes under this category. Abu Hanifah has extended the meaning of this form of 'mistake' to its utmost limits where he has observed: Where a man hires a woman for some work and then fornicates with her, or hires her for fornication and does so, the two will not be penalized for fornication. because of his ignorance that his hiring her does not include this act.9

Accordingly, if she is working in a business establishment or a factory and the proprietor of such establishment copulates with her believing this to be one of the benefits which accrue to him as a result of his hiring her, this act will not be termed fornication, but will be considered 'a mistake' and shall be a valid excuse for the proprietor in Abu Hanifah's opinion.

It follows from the above discussion that a child born as a result of 'intercourse by mistake' is a legitimate offspring and is equal in all respects to a child born out of a valid wedlock, irrespective of whether the mistake is a 'mistake of contract' or a 'mistake of act'. Therefore, he who has intercourse with a woman while in a state of intoxication, or in sleep, or in a state of lunacy or under coercion, or before reaching the age of maturity, or under an impression that she is his wife, with the opposite being discovered later-in all such cases if she gives birth to a child, it shall be attributed to him.

The Imamiyyah have said: In all such cases of mistake, the legality of lineage is established and if the man ref uses to recognize the child as his, his refusal shall not be accepted and the child will be compulsorily attributed to him.10

Muammad Muhyi al-Din, in al-'Ahwal al-shakhsiyyah, p. 480, observes that lineage is not established in any form of 'copulation by mistake' unless the person acting mistakenly claims the child to be his and acknowledges it, because he knows himself better. But this view is incorrect when applied to a lunatic, to one in sleep, or to an intoxicated person, because they do not act with conscious intent. It is also inapplicable in the case of mistake of contract because there is no difference between a valid contract and an invalid contract except that the couple shall separate when the invalidity of the contract becomes known, and there is a consensus among the Sunni and Shi'i schools that whenever a mistake, in any one of its different forms is proved, it is wajib for the woman to observe 'iddah, as observed by a divorcee; she is also entitled to receive the full mahr. Therefore, the rules which apply to a wife will apply to her as regards 'iddah, mahr and child's lineage.11

The mistake may be from the side of the man as well as the woman so that both are ignorant and inattentive. It may be from only one side, such as when the woman knows that she has a lawful husband but hides it from the man, or when he is aware while she is a lunatic or in a state of intoxication. When the mistake is from both sides the child shall be attributed to both of them, and if the mistake is from only one side the child shall be attributed to the parent acting under mistake and not to the parent who was aware.

If a person copulates with a woman and then claims ignorance regarding its being haram, his word shall be accepted without proof and oath.12

In any case, the legal principles, according to Sunni and Shi'i schools, do not permit any ruling ascribing illegitimate birth to a child born of a father when there is a possibility of ascribing its qadi to a mistake. Therefore, if a qadi has evidence before him to suggest 99% probability of the child's illegitimate birth and only 1% probability suggesting it is 'a child by mistake', it is incumbent upon him to accept the latter evidence and disregard the former, giving preference to halal over haram and legitimacy over illegitimacy, in consonance with the Divine injunctions:

وَقُولُوا لِلنَّاسِ حُسْنًا

And speak good to the people (2:83)

اجْتَنِبُوا كَثِيرًا مِنَ الظَّنِّ إِنَّ بَعْضَ الظَّنِّ إِثْمٌ

Eschew much suspicion, for surely some suspicion is a sin. (49:12)

Commentators of the Holy Qur'an have narrated that one day when the Prophet (S) was delivering a sermon, a man who was taunted by people regarding his lineage, stood up and asked, "O Prophet, who is my father?" The Prophet (S) replied, "Your father is Hudhayfah ibn Qays." Another person asked him (S), "O Prophet, where is my father?" The Prophet (S) replied, "Your father is in hell." Here verse 101 of the Swat al-Maidah was revealed:

يَا أَيُّهَا الَّذِينَ آمَنُوا لَا تَسْأَلُوا عَنْ أَشْيَاءَ إِنْ تُبْدَ لَكُمْ تَسُؤْكُمْ

O believers, question not concerning things which, if they were revealed to you, would vex you 13

Traditions of the Prophet (S) recorded by Sunni and Shi'i sources state:

الحدود تدرأ بالشبهات

Penal consequences are repelled hy doubts.

دع ما يريبك إلى ما لا يريبك

Leave that which puts you into doubt for that which does not. 14

Imam 'Ali ibn Abi Talib ('a) has said:

ضع أمر أخيك على أحسنه

Give the best interpretation to your brother's act.

Al-'Imam al-Sadiq ('a) has said:

كذب سمعك وبصرك عن أخيك

Reject the evidence of your ear and eye regarding your brother. 15

The above-mentioned verses of the Qur'an and the reliable and unambiguous traditions quoted, as well as many other verses and traditions of the kind, make it incumbent upon every person to abstain from testifying and judging anyone as an illegitimate offspring unless there exists certainty that he is not in reality a child of mistake in any of its forms.

Child Born of al-Mut'ah

There is something in this regard of which most people are not aware, and I thank the person who wrote me a letter inquiring about this issue. Now, with the present opportunity to explain this legal and historical issue, I intend to be brief to the best of my ability. I shall be a narrator, not a partisan or critic, and shall leave the reader to judge for himself, keeping the matter open for him to affirm or reject.

There is a consensus amongst the Sunni and Shi'i schools that mutah (temporary marriage) was halal by the order of the Prophet (S) and that Muslims performed mut'ah during his time. But they differ regarding its revocation. The Sunnis say: M ut'ah has been revoked and made haram after being halal earlier.16

The Shi'ah state: Revocation has not been proved: it was halal and shall remain so until the Day of Judgment. The Shi'ah cite verse 24 of the Surat al-Nisa' a evidence:

فَمَا اسْتَمْتَعْتُمْ بِهِ مِنْهُنَّ فَآتُوهُنَّ أُجُورَهُنَّ فَرِيضَةً

...Give them their dowry for the mut'ah you have had with them as a duty... (4:24)

And that which Muslim ha narrated in his al-Sahih as a proof:

إستمتع الأصحاب في عهد رسول الله وأبي بكر وعمر

The Companions of the Prophet (S) performed mut'ah during his lifetime and during the reigns of Abu Bakr and 'Umar.

The mut'ah form of marriage is a marriage for a fixed period of time, and according to the Shi'ah it is similar to the permanent marriage a regards the recital of a contract proving express intention of marriage.

Consequently, any form of sexual contact between a man and woman without a contract will not be considered mut’ah even if it is by mutual consent and inclination. When the contract is recited it becomes binding and its observance becomes obligatory.

It is compulsory that mahr be mentioned in the contract of mut'ah. This mahr is similar to the mahr of a permanent wife, there being no prescribed minimum or maximum limit. and half of it subsides when the stipulated period is gif ted or expires without consummation, in consonance with the rule applied in the mahr of a permanent wife divorced before consummation.

It is incumbent upon the woman with whom mut'ah has been contracted to undergo the 'iddah after the completion of the stipulated time, with the difference that a divorcee observes an 'iddah of three months or three menstrual cycles, while in mut'ah she observes an 'iddah of two menstrual cycles or forty-five days. But as to the 'iddah observed on the death of the husband, the wife in mut'ah observes it for four months and ten days, which is the same as observed by a permanent wife, irrespective of consummation.

The child born of this form of marriage is legitimate and enjoys all the rights of a legitimate child without the exception of a single legal or moral right.

It is compulsory that mut'ah be contracted for a fixed period of time and it is necessary that this stipulated time be mentioned in the contract. The wife in mutah does not inherit from her husband and her maintenance is also not obligatory upon him. in contrast with the permanent wife, who both inherits and is entitled to maintenance. But a wife in mut'ah can stipulate at the time of the contract that she shall inherit and be entitled to maintenance, and if the contract is concluded on these terms, the wife in mut'ah becomes similar to a permanent wife.17

In spite of their belief in the validity of mut'ah, the Shi'is of Syria, Iraq and Lebanon do not practice it, and the Ja'fari Shariah Courts in Lebanon, since their inception, have neither applied this form of marriage nor authorized it.

The Illegitimate Child (Walad al-Zina)

One who studies the verses of the Qur'an, the traditions of the Prophet (S) and the statements of Muslim legists, finds that Islam leaves no room for anyone to accuse others of fornication. Islam has framed the related rules of furnishing proof and giving judgment in a manner that makes this task difficult or even impossible. Whereas Islam considers two just ('adil) witnesses sufficient for proving homicide, in the case of fornication it requires four just witnesses to testify that they have witnessed the act of penetration itself. It is not sufficient for them to say that so and so fornicated with so and so, or that they saw the two naked hugging each other in a bed under a single cover. If three witnesses bear witness while the fourth abstains, each of the three shall be liable to a punishment of eighty lashes. Similarly a person who accuses a man or a woman of fornication shall be liable to eighty lashes.18

The purpose behind all this is to cover the deed' of people, to protect their honor, to protect the family from the fear of ruined descent and the children from homelessness.

Fornication is the committing of the act by a mature and sane person with the knowledge of its being haram. Therefore fornication cannot be committed by a person who has not attained maturity or is insane or is ignorant or has been coerced or is in a state of intoxication. The act committed by these people will be considered 'intercourse by mistake', and we have discussed earlier the rules which apply to it. From the above discussion, it becomes clear that the Islamic Law gives a very restricted interpretation to fornication; firstly, by limiting its application to an act committed with knowledge and intention, wherein there is no scope for attributing it to a mistake or fault in any manner. Secondly, it has restricted the manner of proving it in court by requiring four just witnesses who have seen it with their own eyes, whereas, generally, such an act is not observable. It is possible for a single witness to have seen it, while it is almost impossible for three or four persons to do so. All this clearly indicates that Islam has firmly closed the door in the face of those who seek to raise this thorny issue, because God does not like the spread of indecency among His creatures.

There is a consensus among legists of all the legal schools that when fornication is proved in its above-mentioned meaning and manner, the child born of it shall not inherit from the father because no legal lineal bond is established between them.

But the legists have landed themselves in a legal difficulty by giving the fatwa that an illegitimate issue cannot inherit, and are puzzled in finding a way out of this difficulty: If an illegitimate child is not attributable legally to its male 'parent', then, accordingly, in such a situation, it cannot be impermissible for a man to marry his illegitimate daughter and for an illegitimate son to marry his sister or paternal aunt as long as he is considered a stranger to the male 'parent'.

Therefore, an illegitimate son is either a legally recognized issue and thereby entitled to everything to which legally recognized children are entitled, including the right of inheritance and maintenance, or he is not a legally recognized issue and thereby entitled to all those things which are established as regards those who are legally unrelated, including the marriage with a daughter or a sister. To differentiate between the effects of a single undivided cause is to claim something without requisite proof: it amounts to inclining towards something without any reason for doing so. Therefore, we see the legists differ on this question after having concurred earlier (i.e. in excluding him from inheritance). Maliki and al-Shafi' have said: It is permissible (in such a case) for the person to marry his daughter, his sister, his son's daughter, his daughter's daughter, his brother's daughter and his sister's daughter when these relations have been established as a result of fornication, because they are 'strangers' to him and no legal lineal bond exists between them.19 But this manner of solving the problem reminds one of the saying: "The cure is worse than the disease."

Imamiyyah legists, Abu Hanifah and Ibn Hanbal have observed: We ought to differentiate between the two situations. We must disqualify the child from inheriting, while at the same time prohibiting matrimonial relationship between the child or its father within the prohibited degrees of relationship. Apart from marriage, to touch and to look at each other is also haram for both of them. Therefore, a father cannot look at or touch his illegitimate daughter despite her inability to inherit from him and his of inheriting from her.20

They argue that the establishment of matrimonial relationship is haram by pointing out that an illegitimate child is after all an offspring, both literally and by general acceptance. Consequently, whatever is haram between fathers and children is also haram for the illegitimate child and its father. Their argument about the child's disqualification from inheriting is based upon the fact that the child is not acknowledged by the Shari'ah as its father's offspring and this is expressly stated by the verses of the Qur'iin and traditions.

Al-Laqit

Al-laqit is a child found by a person in a state in which it is incapable of fending for itself, whom he takes and brings it up along with the rest of his family. All the legal schools concur that the laqit if and its guardian do not inherit from each other, because the act of giving shelter to an abandoned child is purely an act of kindness done in the spirit of cooperating in the performance of good and righteous deeds. It resembles the gif ting of a fortune to someone making him prosperous after earlier indigence and distress with the hope of acquiring God's grace. As this act of kindness is no cause for inheritance, similarly the giving of shelter to an abandoned child.

Adoption (al-Tabanni)

Adoption is the taking by a person of a child of known parentage and attributing it to himself. The Islamic Shari'ah does not consider adoption as a cause of inheritance, for it does not change the actual fact from what it is; the lineage of the child is both known and established and lineage can neither be abrogated nor eliminated. This has been clearly mentioned in this verse of the Surat al-'Ahzab:

مَا جَعَلَ اللَّهُ لِرَجُلٍ مِنْ قَلْبَيْنِ فِي جَوْفِهِ ۚ وَمَا جَعَلَ أَزْوَاجَكُمُ اللَّائِي تُظَاهِرُونَ مِنْهُنَّ أُمَّهَاتِكُمْ ۚ وَمَا جَعَلَ أَدْعِيَاءَكُمْ أَبْنَاءَكُمْ ۚ ذَٰلِكُمْ قَوْلُكُمْ بِأَفْوَاهِكُمْ ۖ وَاللَّهُ يَقُولُ الْحَقَّ وَهُوَ يَهْدِي السَّبِيلَ

ادْعُوهُمْ لِآبَائِهِمْ هُوَ أَقْسَطُ عِنْدَ اللَّهِ

...Neither has He made your adopted sons your sons (in fact). That is your own saying, the words of your mouths; but God speaks the truth, and guides on the way. Call them after their true fathers; that is more equitable in the sight of God... (33:4,5)

The exegetes have mentioned an interesting episode in relation to the revelation of this verse. Zayd ibn Harithah was made captive during the jahiliyyah and the Prophet (S) bought him. After the advent of Islam Harithah came to Makkah and asked the Prophet (S) to sell his son to him or to free him. The Prophet (S) said: "He is free; he can go wherever he wants." But Zayd refused to leave the Prophet(S). His father, Harithah, became angry and said: "O people of Quraysh; bear witness that Zayd is not my son." The Prophet (S) then said: "O people of Quraysh, bear witness that Zayd is my son."21

The legists have mentioned many other subsidiary issues under this head, and of these are some which are neither acceptable to human reason nor in harmony with the Shari'ah. One of them is the one quoted by the author of al-Mughni (vol.7, p.439) from Abu Hanifah, who holds: If a man marries a woman in a gathering and then divorces her in the same gathering before leaving it, or marries her while he is in the east and she in the west, either way if she gives birth to a child six months after the marriage, the child shall be attributed to the husband.

Other opinions are such as whose validity seems questionable from the viewpoint of medical science. The author of al-Mughni, in the same volume and on the same page, says: "If the husband is a child of 10 years and his wife becomes pregnant, the child shall be attributed to him."

Similar is the one quoted by the Shi'i author of al-Masalik (vol.2, Fasi ahkaim al-'awlad): "If penetration occurs without discharge taking place, the child shall be attributed to the husband."

- 1. The Editors· Note: The late author's statement about prophets and Imams does not seem to be in accordance with the Shi'i belief in their 'ismah. To say that prophets and Imams, like ordinary human beings, make statements about things unknown to them on the basis of conjecture and hearsay, goes against the doctrine of ‘ismah, i.e. the belief that they, as God's representatives and the trustees of His doctrines and laws, are saved by God from falling not only in minor sins but even errors and omissions.
An important question relevant here is that pertaining to the relationship between religion and nature.

From the viewpoint of Islam, religion, as a system of doctrines and laws, is closely associated with nature and reality. While the doctrines of the faith, in order to be true, must reflect the reality, the entire philosophy of law in Islam is based on the close association between law and nature. The lawgiver, in order to be able to legislate beneficial laws, must know thoroughly the facts and realities which are relevant to his laws.

Hence God's prerogative to legislate is based, in addition to His Sovereignty and Beneficence, upon His Omniscience: that His knowledge encompasses all things. Now if God authorizes prophets and Imams to legislate about certain matters and to lay down rules and regulations, it cannot be without His putting at their disposal the knowledge of the realities related to those rules and regulations.

Furthermore, we know from the Qur'an that it is a Divine command that one should not go beyond the limits of one's knowledge to make statements based on conjecture and hearsay:

وَلَا تَقْفُ مَا لَيْسَ لَكَ بِهِ عِلْمٌ ۚ إِنَّ السَّمْعَ وَالْبَصَرَ وَالْفُؤَادَ كُلُّ أُولَٰئِكَ كَانَ عَنْهُ مَسْئُولًا

And pursue not that thou hast no knowledge of the hearing, the sight and the heart--all of these shall be questioned. (17:36)

Therefore, it is not possible for prophets and Imams, who are most obedient to God in all matters and hence are models for other human beings to emulate, to make statements about things of which they are ignorant.

Nevertheless, the author is right in rejecting tradition as a source of knowledge in a field which lies well within the scope and range of scientific inquiry, for it is not possible to ascertain the authenticity of traditions with certainty.

- 2. The Shi'i work al-Jawahir, Bab al-zawaj, ahkam al-'awlad and al-Ahwal al-shakhsiyyah of Muhammad Muhyi al-Din, p.476.

- 3. Al-Durar fi sharh al-Ghurar, vol.1. p.307.

- 4. Al-Mughni of Ibn Qudamah, 3rd edition, vol.7, p.477, and al-Fiqh ala al-madhahib al-'arba'ah, 1st ed. vol.4, p.523, mention the maximum period of gestation according to the Malikis to be five years.

- 5. Al-Mughni, 3rd ed. vol.7, p.477.

- 6. Al- Ahwal al-shakhsiyyah, p.474.

- 7. See al-Jawahir, al-Masalik, al-Hada'iq and other Shi'i books.

- 8. Al-Mughni, 3rd. ed. vol.8, p.211.

- 9. Al-Jawahir, al-Hada'iq and other Shi’i works.

- 10. Al-Mughni, vol.7, p.483; vol.6, p.534; and the Shi'i works al-Jawahir and al-Masalik.

- 11. Al-Mughni, vol.8, p.185.

- 12. See Majma al-Baylm fi tasfsir al-Qur'an.

- 13. Al-Rasa’il, al-Shaykh al-'Ansari , chapter on al-Bara’ah.

- 14. Ibid, chapter on Asl al-sihhah.

- 15. Al-Mughni, 3rd. ed., vol.6, p.644

- 16. Al-Jawahir

- 17. The Shi'i work al-Lum'ah, vol.2, the chapter on hudid; the Sunni work al-Mughni, vol.8, p.198 ff.

- 18. Al-Mughni, 3rd. ed., vol.6, p.578.

- 19. Al-Mughni, vol.6, p.577, and the Shi'i work al-Masalik, vol.1, chapter on marriage, fasi al-musaharah.

- 20. Majma al-Bayan fi tafsir al-Qur'an.

- 21. Al-Jawahir and al-Masalik, chapters on hudud.

Artificial Insemination

A hot debate is going on in the West regarding the answer to this question: If a barren husband agrees with his wife that she be artificially inseminated with a stranger's sperm, is this legally permissible?

This question was raised before the House of Commons in England and a committee of the House was set up to deliberate on the issue. In Italy the Pope declared it illegal. In France, the doctors observed: It is permissible if done by the couple's consent. In Austria, the government recognizes the child as a legitimate issue of the couple unless the husband makes a formal objection.

As to Islamic legists, I doubt whether they have dealt with this question, since it is a problem of recent origin. The Imamiyyah scholars have narrated a tradition under the head of hudud. Al-Hasan ibn 'Ali ('a) was asked regarding a woman who after intercourse with her husband engages in Lesbian intercourse with a virgin transferring his sperm to her, consequently making the latter pregnant. The Imam ('a) replied: The mahr of the virgin shall be exacted from the married woman because the child would not be delivered without the virgin losing her virginity. Then, the other woman shall be stoned to death because of her marital status. Regarding the pregnant woman, they shall wait until she delivers and the child shall be given to the father, i.e. the person of whose sperm it was born. After this, she shall be flogged.1

Four rules can be deduced from this tradition:

(1) Stoning of the married woman, (2) Liability of the married woman to pay the mahr of the other woman as a compensation for her lost virginity. (3) Flogging of the other woman, (4) Attribution of the child to the person of whose sperm the child was born.

The Imamiyyah legists differ regarding application of this tradition. Of those who have applied this tradition in totality are al-Shaykh al-Tusi and his followers. Others, who accept the last three rules without accepting the first one, include the author of al-Sharai, who holds the punishment of the married woman to be flogging instead of stoning.2 Ibn Idris has rejected the tradition totally, objecting to the statement about the stoning of the married woman, because the sentence for Lesbian intercourse is flogging, not stoning. He also objects to the attribution of the child to the person of whose sperm it was born, because it was not born as a result of intercourse through valid marriage or by mistake. He even objects to the rule which compels the married woman to pay the mahr of the pregnant woman, because, according to him, the woman made pregnant was not coerced, and Lesbian intercourse with consent is similar to fornication, which does not result in liability to pay mahr.

This is what I have found in the legal books closely or distantly relating to the question at hand. In any case, we have two questions at hand: (1) Is artificial insemination permissible or not in the Islamic Shariah? (2) If, as a result of artificial insemination, a child is born, what shall be its legal status and to whom shall it be attributed?

Artificial Insemination is Prohibited

Regarding the first question, there is no doubt that such insemination is prohibited due to following reasons: (1) Our knowledge of the Shariah, and its warning and emphasis concerning sexual matters, tell us that permissibility of anything in this regard rests upon permission of the Shari'ah. Therefore, the mere possibility of its being impermissible is sufficient for making restraint and caution obligatory. (2) In the thirty-first verse of Surat al-Nur:

وَقُلْ لِلْمُؤْمِنَاتِ يَغْضُضْنَ مِنْ أَبْصَارِهِنَّ وَيَحْفَظْنَ فُرُوجَهُنَّ

And say to the believing women that they cast down their looks and guard their private parts... (24:31)

God has commanded women that they 'safeguard' their organs of reproduction; but He has not mentioned from what they are supposed to be safeguarded. Neither has He specified that they safeguard them from intercourse or some other thing. The jurisprudents as well as linguists of the Arabic language concur that any proposition devoid of any particular specification implies the generality of inclusion. Similarly the inclusion of a specification in a proposition limits the proposition to that extent. For example, if it is said, "Safeguard your wealth from thieves", it denotes that wealth must be protected only from being robbed. But if it is said, "Safeguard your wealth," without specifying any specific thing, it implies that wealth is to be protected from being robbed, from damage, from waste, etc. Accordingly, the verse of the Qur'an connotes that the organs of reproduction be safeguarded from everything including insemination. This verse is reinforced by verses 5-7 of the Surat al-Mu'minun:

وَالَّذِينَ هُمْ لِفُرُوجِهِمْ حَافِظُونَ

إِلَّا عَلَىٰ أَزْوَاجِهِمْ أَوْ مَا مَلَكَتْ أَيْمَانُهُمْ فَإِنَّهُمْ غَيْرُ مَلُومِينَ

فَمَنِ ابْتَغَىٰ وَرَاءَ ذَٰلِكَ فَأُولَٰئِكَ هُمُ الْعَادُونَ

And who guard their private parts. Save from their wives or those whom their right hands own, for then they surely are not blameworthy. But whoever seeks to go beyond that, those are the transgressors. (23:5-7)

The phrase

لِكَ فَأُولَٰئِكَ هُمُ الْعَادُونَ

indicates that any act contrary to the guarding of the parts amounts to transgression of the lawful limits, except that which occurs through marriage or ownership.

Though the verses speak specifically of men, it does not hinder their application to women, because there is consensus that there is no difference between men and women in rules of this kind.

Some may say that the phrase

يَحْفَظْنَ فُرُوجَهُنَّ

does not prove that this kind of insemination is haram. It only indicates the impermissibility of (extra-marital) sexual relations, and this is the meaning that comes to mind and is understood from the verse. In other word, this verse may imply a wider meaning which includes artificial insemination or something else; but that which is apparent from its word is fornication, and it is a known fact that it is the generally understood meanings of dicta that are accepted for deriving the rules of the Shari'ah, not their literal meaning.

The answer is that this apparent meaning of the verse is not inherent in it; rather, this meaning has come to be associated with the verse because of its frequent usage in that context (i.e. to mean fornication). This is similar to the use of the word 'water' in Baghdad to mean the water of the Tigris and in Cairo to mean the water of the Nile, but this apparent meaning is of no consequence at all, for it fades on a little amount of reflection. No one can claim that the word 'water' in Baghdad was coined to mean only the water of the Tigris and in Cairo to mean only that of the Nile. Moreover, if artificial insemination were considered permissible on this ground, so would be the licking of dogs..., because both these notions are far removed from the meaning which immediately comes to the mind.

The Offspring by Artificial Insemination

Now a child is born as a result of artificial insemination: shall it be a legitimate child, and to whom shall it be attributed?

The answer i: As regards the sterile husband, the child cannot be attributed to him under any circumstances, and adoption is not valid in Islam:

وَمَا جَعَلَ أَدْعِيَاءَكُمْ أَبْنَاءَكُمْ

And He has not made those whom you call your sons, your sons. (33:4)

As to the woman who bears it, some legal schools attribute the child to her, because an illegitimate child inherits from its mother and from its relatives through her and they inherit from it.3 Therefore, if an illegitimate child can be attributed to its mother, a child born by artificial insemination is better entitled to be similarly attributed.

The Imamiyyah, who do not attribute an illegitimate child to the fornicator or the fornicatress, observe: The child born by artificial insemination does not inherit from its father or mother, and neither do they inherit from it. Ayatullah al-Sayyid Muhsin al-Hakim al-Tabatab'i has differentiated between an illegitimate child and a child born by insemination. He observes: A child born by insemination shall be attributed to its mother, because there is no valid reason to negate its status, and the grounds which prohibit an illegitimate child from attribution to its mother do not apply here.

But as regards the man whose sperm is inseminated, al-Sayyid al-Hakim says: The child shall not be attributed to him, because in order for a child to be attributed to a person it requires that he should have had intercourse irrespective of whether he performs it, or is unable to perform it but has his sperm reach her reproductive organ during his effort, or is transferred to another woman as a result of Lesbian intercourse as mentioned in the tradition from al-'Imam al-Hasan ('a). Apart from these cases, a child shall not be attributed to the person of whose sperm it was conceived, even if he is the husband."

Whatever the case, artificial insemination is haram and no Muslim may pronounce it halal. But the impermissibility of artificial insemination does not necessarily imply that the child born of it is an illegitimate issue, for at times intercourse may be prohibited but the child born of it is considered legitimate-as in the case of the person who has intercourse with his wife during her menses or during the fast of Ramadan, in both of which cases it is a prohibited act; but nevertheless the lineal bond between the child and the parents shall be established.

Accordingly, if a person has artificial insemination performed despite its impermissibility, the child born shall not be attributable to the husband because it was not born of his sperm, nor shall it be attributable to the man whose sperm was inseminated, because he has not had sexual intercourse, neither by marriage nor by mistake. But the child shall be attributed to its mother because it is her actual offspring and her legal child, and every actual offspring is a legally recognized issue unless the opposite is proved.

- 1. As mentioned in al-Jawahir, most Shi'i legists observe that the sentence for Lesbian intercourse is 100 lashes for a married as well as an unmarried woman, irrespective of the passive or active roles of the participants. In Ibn Qudamah's al-Mughni, 3rd. ed. vol.8, p.189, it has been observed: There is no hadd for Lesbian intercourse because there is no penetration involved, and it is for the judge to award a suitable punishment (tazir) to the two culprits.

- 2. Al-Mirath fi al-Shari'at al-'Islamiyyah of al-'Ustadh 'Ali Hasb Allah, 2nd. ed. p.94; Ibn 'Abidin, and Ibn Qudamah in al-Mughni, chapter on inheritance. fasi al-'asabat (male relatives).

- 3. The letter of al-Sayyid al-Hakim, dated 7th Ramadan 1377, in reply to a question regarding this issue.

Custody (Al-Hidanah)

Custody has no connection with guardianship (wilayah) over the ward with respect to marriage; it is limited to the care of a child for its upbringing and protection for a period of time during which it requires the care of women. Custody is the right of the mother by consensus, though there is a difference of opinion regarding: the period after which it expires, the person who is entitled to custody after the mother, the qualification for a woman to act as a custodian, her right to receive a fee for it, and other aspects which we shall discuss subsequently.

The Right to Act as a Custodian

If it is not possible for a mother to act as the custodian of her child, to whom will this right belong?

The Hanafis observe: It is transferred from the mother to the mother's mother, then to the father’s mother, then to the full sister’s, then to the uterine sister’s, then to the paternal sister’s, then to the full sister's daughter, and so on till it reaches the maternal and paternal aunts.

The Malikis say: The right is transferred from the mother to her mother, how high so ever; then to the full maternal aunt; then the uterine maternal aunt, then the mother's maternal aunt, then the mother's paternal aunt, then the father's paternal aunt, then his (father's) mother's mother. then his father's mother and so on.

The Shafi’is say: The mother, then the mother's mother, how high so ever, on condition that she inherits: then the father, then his mother, how high so ever, on condition that she inherits; then the nearest among the female relatives, and then the nearest among the male relatives.

According to the Hanbali, the mother is followed by her mother, then her mother's mother, then the father, followed by his mother: then the grandfather followed by his mother; then the full sister; then the uterine sister; then the paternal sister; then the full maternal aunt; then the uterine maternal aunt, and so on.

The Imamiyyah observe: The mother, and then the father. and if the father dies or becomes insane after he has taken the child's custody, the right to custody will revert to the mother on her being alive, because she is better entitled than others-including the paternal grandfather-even if she has married a stranger. If the parents are not there, the custody of the child will lie with the paternal grandfather, and if he isn't there nor has an executor, the child's custody will lie with its relatives in order of inheritance, the nearer taking precedence over the remote. If there is more than one relative of the same class, such as the maternal and paternal grandmothers or maternal and paternal aunts, the matter will be decided by drawing lots in the event of contention and dispute. The person in whose name the lot is drawn becomes entitled to act as the custodian till his death or till he forgoes his right.1 This is also the view of the Hanbalis (al-Mughni, vol. 9, bab al-hidanah).

The Qualifications for Custody

The scholars concur regarding the qualifications required for a female custodian, which are: her being sane, chaste and trustworthy, her not being an adulteress, a dancer, an imbiber of wine, or oblivious to child care. The purpose of these requirements is to ensure the proper care of the child from the viewpoint of physical and mental health. These conditions also apply if the custodian is a man.

The schools differ as to whether being Muslim is a condition for custodianship. The Imamiyyah and the Shafi'i schools say: A non-Muslim has no right to the custody of a Muslim.

The other schools do not consider Islam as a requirement for a custodian, except that the Hanafis say: The apostasy of a custodian, male or female, terminates his/her right to custody.

The Imamiyyah state: It is compulsory that the female custodian be free from any contagious disease.

The Hanbali school says: It is compulsory that she should not suffer from leprosy and leukoderma, and that which is important is that the child should not face any harm.

The four schools have said: If the mother is divorced and marries a person who is unrelated to the child, her right to custody shall terminate. But if the husband is of the child's kin, the right to custody remains with the mother.

The Imamiyyah observe: The right to custody terminates with her marriage irrespective of whether the husband is related to the child or not.

The Hanafi, the Shafi’i, the Imamiyyah and the Hanbali schools have said: If the mother is divorced by the second husband, the disability is removed and her right to custody reverts after its earlier termination due to her marriage.

According to the Maliki school, her right to custody does not revert.

The Period of Custody

The Hanafis say: The period of custody for a boy is 7 years, and for a girl 9 years.

The Shafi’i school observes: There is no definite period of custody; the child shall remain with it mother until it is able to choose between the two parents; and when it has reached the discriminating age it will choose between the two. If a boy chooses to stay with his mother, he will stay with her during the night and spend the day with his father, so that the father can arrange for his instruction. If a girl chooses to stay with her mother, she will continue to stay with her during the day as well as in the night. If the child chooses both the parents together, lots will be drawn between them, and if the child keeps quiet and does not choose any one of them, the custody shall lie with the mother.

The Malikis consider the period of custody for a boy to be from birth until puberty and for a girl until her marriage.

According to the Hanbali school, it is 7 years irrespective of the child's sex, and, after that, the child can choose to live with one of the parents.

The Imamiyyah have said: The period of custody for a boy is 2 years, and for a girl 7 years. After this, the custody shall lie with the father until the girl reaches the age of 9, and the boy the age of 15; there after they can choose to live with one of the parents.2

Fee for Custody

The Shafi'i and the Hanbali schools state: A female custodian has the right to claim a fee for her services irrespective of whether she is the mother or someone else. The Shafi'i’s clarify that this fee shall be paid from the child assets if any; otherwise it is incumbent upon the father, or upon whoever is responsible for the child's maintenance.

The Malikis and the Imamiyyah3 observe: The female custodian is not entitled to any fee for her services. But the Imamiyyah add: She is entitled to be paid for breast-feeding. Therefore, if the child has any assets she shall be paid out of that: otherwise, the father shall pay it if he is capable of doing so (al-Fiqh 'ala al-madhahib al-'arbdah, vol.4: al-Masalik; vol.2).

The Hanafi school has said: The payment of fee for custody is wajib if: there does not exist any marital relationship between the female custodian and the child's father: if she is not in the course of observing the 'iddah of a revocable divorce given by the child's father: if she is observing the 'iddah of an irrevocable divorce of an invalid marriage, in which case she is entitled to receive maintenance from the child's father. If the child has any property, the payment shall be made from it: otherwise the payment shall be made by the one responsible for the child's maintenance (al-'Ahwal al-shakhsiyyah by Abu Zuhrah).

Travelling With the Child

In case the mother takes the child under her custody, and the father intends to travel with his child to settle down in another town, the Imamis and the Hanafis say: He cannot do so. The Shafi’i, the Maliki and the Hanbali schools observe: He can do so.

But if it is the mother who intends to travel with the child, the Hanafi school gives her the right to do so if the two following conditions are met: (1) That she be migrating to her own town; (2) that the marriage contract should have been recited in the town to which she is migrating. If any of these two conditions is not met, she is forbidden to travel except to a place so near that it is possible to return before it gets dark.

The Shafi'i and the Maliki schools, and Ahmad in one of the two traditions narrated from him, observe: The father has greater right over the child irrespective of whether he is moving or she (Rahmat al-'ummah fi ikhtilaf al-'a'imah).

The Irnamiyyah state: A divorced mother is not permitted to travel with the child under her custody to a far-off place without the consent of the child's father. The father, too, is not permitted to travel with the child to any town which is not the mother's hometown while the child is in her custody.

Voluntary Breast-Feeding and Custody

The difference between custody and breast-feeding (al-ridad) is that by 'custody' is meant only the upbringing and care of the child: it excludes breast-feeding, which involves the infant's nourishment. Because of this difference, it is valid for a mother to forgo her right to breast-feed while her right to custody remains intact. The Imamiyyah and the Hanafi schools concur that if a woman volunteers to breast-feed a child gratuitously while the mother refuses to breast-feed without recompense. the woman volunteering shall be given precedence over the mother, whose right to suckle her child is lost. But her right to the custody of her child shall remain as it is, and the child shall be under her care while the nurse comes to feed it or it is taken to the nurse to be fed.

If a woman volunteers to act as a child's custodian, the child shall not be separated from the mother, according to the Imamiyyah and the other schools which do not require compensation for a custodian's services.

But the Hanafis, who consider the payment of compensation for custody as wajib, observe: Where the mother refuses to act as a custodian unless she is paid and another woman volunteers to act as a custodian, the mother is better entitled to custody if the compensation is to be paid by the father, or if the woman is an outsider and there are no women custodians among the child's relatives. But if the woman volunteering is related to the child and the compensation lies upon an indigent father, or is to be paid from the child's property, the other woman shall be preferred, because, in such a situation, the child is saved from payment of fee out of its assets by the woman volunteering. Therefore, she shall be given preference over the mother in the child's interest (al-'Ahwal al-shakhsiyyah by Abu Zuhrah).

Surrendering of the Right to Custody

Is the right to custody specifically the right of a female custodian that terminates on her surrendering it- similar to the right of pre-emption which can he surrendered- or is it a right of the child that binds the female custodian precluding her right to surrender it, as in the case of a mother's right which cannot be surrendered?

The Imamiyyah, the Shafi'i and the Hanbali schools observe: Custody is the specific right of a female custodian, and she can surrender it whenever she pleases and she shall not be compelled to act as a custodian on her refusing to do so. There is a tradition from Malik regarding this. and the author of al-Jawahir has argued on its authority that the legists have not concurred that a female custodian can be compelled to act as a custodian, and the Shari'ah does not express y mention such compulsion; on the contrary, the texts of the Shari'ah apparently consider custody similar to breast-feeding, and, consequently, she has the right to surrender her custody at will.

The same principle applies where a child's mother seeks a divorce from her husband by surrendering in his favor her right to custody of the child, or when the husband surrenders to her his right to take away the child after the expiry of her period of custody. This form of divorce is valid and neither of the two can refrain from discharging their agreement after it is concluded, except by mutual consent Similarly, if the two compromise and she surrenders her right to custody or he surrenders his right to take away the child, the compromise is binding and its fulfillment is wajib.

Ibn 'Abidin has reported a difference of opinion amongst the Hanaf'is on this issue. He has pointed out that it is better that custody be considered as a right of the child, so that the mother does not have the right to surrender her responsibility to act as a custodian to make compromise over it, or to exchange it for securing a divorce.

The Sunni Shari'ah courts in Lebanon consider a divorce of this kind as valid, but consider as invalid the condition that she would surrender her right to custody; any compromise which includes the surrendering of her right to custody is considered void ab initio. But the Ja'fari Shariah courts consider the divorce, the condition and the compromise as valid.

- 1. Al-Jawahir and al-Masalik, bab al-zawaj: al-hidanah.

- 2. The child's right to choose to live with the father or the mother on reaching this age is not in conflict with the (Lebanese) law according to which the age of majority is 18 years; because this age has been considered by the law as a condition for marriage and not for choosing between the parents.

- 3. The author of al-Masalik has inclined towards the absence of any compensation for custody, and the author of al-Jawahir has inclined towards its presence. Considering that there is no explicit reference in the Shari'ah about compensation being wajib, and considering that it is not customary to pay compensation for custody, the opinion expressed by the author of al-Masalik is correct.

The Right to Maintenance

There is consensus among all Muslims that marriage is one of the causes that make maintenance wajib. A similar consensus exists regarding kinship (al-qarabah). The Holy Qur'an has explicitly mentioned the wife's maintenance in the following verse:

وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ

...And on the child "s father (the husband) is their food and clothing... (2:233)

By the pronoun هُنَّare meant wives and theالْمَوْلُودِ لَهُ is the husband. There is also a tradition which says:

حق الزوجة على زوجها أن يشبع بطنها ويكسو جثتها وإن جهلت غفر لها

The right of a woman over her husband is that he feed her, clothe her, and if she acts out of ignorance, to forgive her.

The Qur'an has referred to the maintenance of relatives in the phraseوبالوالدين إحسانا , and the Prophet (S) has said (You and your property are for your father).

Our discussion comprises two issues: first, the maintenance of a wife and her maintenance during the 'iddah period; second, the maintenance of relatives.

The Maintenance of a Wife and a Divorcee During 'Iddah

The legal schools concur that the wife's maintenance is wajib if the requisite conditions, to be mentioned subsequently, are fulfilled, and that the maintenance of a divorcee is wajib during the 'iddah of a revocable divorce. The schools also concur that a woman observing the 'iddah following her husband's death is not entitled to maintenance, whether she is pregnant or not, except that the Shafi'i and the Maliki schools state: If the husband dies, she is entitled to maintenance only to the extent of housing.

The Shafi'is have said: If he separates from her while she is pregnant and then dies, her maintenance shall not cease.

The Hanafis observe: If she is a revocable divorcee and the husband dies during the 'iddah, her 'iddah of divorce shall change into an 'iddah of death, and her maintenance shall cease, except where she had been asked (by count) to borrow her maintenance and she had actually done so. In this case, the maintenance shall not cease.

There is consensus that a woman observing ‘iddah as a result of 'intercourse by mistake' is not entitled to maintenance.

The schools differ regarding the maintenance of a divorcee during the 'iddah of an irrevocable divorce. The Hanafis observe: She is entitled to maintenance even if she has been divorced thrice, whether she is pregnant or not, on condition that she does not leave the house provided by the divorcee (husband) for her to spend the period of 'iddah. According to the Hanafi school, the rules which apply to a woman in an 'iddah following the dissolution of a valid contract are the same as those which apply to a divorcee in an irrevocable divorce.

According to the Maliki school, if the divorcee is not pregnant, she shall not be entitled to any maintenance except residence, and if she is pregnant she is entitled to her full maintenance; it shall not subside even if she leaves the house provided for spending the 'iddah, because the maintenance is intended for the child in the womb and not for the divorcee.

The Shafi'i, the Imamiyyah and the Hanbali schools state: If she is not pregnant she is not entitled to maintenance, and if pregnant, she is entitled to it. But the Shafi’is add: If she leaves the house of her 'iddah without any necessity, her maintenance shall cease.

The Imamiyyah do not consider the dissolution of a valid contract similar to an irrevocable divorce; they observe: A divorcee undergoing the 'iddah of a dissolved contract is not entitled to any maintenance whether she is pregnant or not.

A Disobedient Wife (al-Nashizah)

The schools concur that a disobedient wife is not entitled to maintenance. But they differ regarding the extent of disobedience which causes the maintenance to subside. According to the Hanaf"is, when a wife confines herself to her husband's house and does not leave it except with his permission, she shall be regarded as 'obedient' even if she denies him her sexual company without any valid reason. Therefore, though such an act is Haram for her, it shall not cause her maintenance to cease. Thus, the cause which entitles her to maintenance, according to the Hanafis, is her confining herself to her husband's home, and her denial of her sexual company has no effect at all. This view of the Hanafi school is contrary to the view of all the other schools who concur that if a wife does not allow her husband free access to her person without any legal and reasonable excuse, she shall be considered 'disobedient' and shall not be entitled to any maintenance. The Shafi’is further add: Her allowing him free access is not enough unless she comes forth and says expressly to him: 'I surrender myself to you'.

In fact, the criterion for ascertaining 'obedience' and 'submission' is the general custom and there is no doubt that the people consider a wife obedient if she does not deny him access when he demands it, and they do not consider it necessary that she offer herself to him morning and evening. Whatever be the case, we have here the following questions concerning 'obedience' and 'disobedience'.

(1) If the wife is a minor, unfit for intercourse, and the husband a major capable of it, shall maintenance be wajib?

The Hanafis say: There are three types of female minors:

(i) A minor wife who is neither of any use for service nor for sociability, shall not be entitled to maintenance.

(ii) A minor wife with whom intercourse is possible enjoys the rights of a major wife.

(iii) A minor wife who is of use for service or for sociability alone, but not for intercourse, shall not be entitled to maintenance.

The remaining schools state: A minor wife is not entitled to maintenance even if the husband is a major.

(2) If the wife is a major capable of intercourse while the husband is a minor and incapable of it, the Hanafi, the Shafi’i and the Hanbali schools observe: Her maintenance is wajib because the hindrance is from his side, not her.

The Malikis and some scholars of the Imamiyyah have said: Maintenance is not wajib because the sole granting of access from her side has no effect while there exists a natural disability in the husband, and a minor husband is free of obligations (ghayr mukallaf), and as to the duty of his guardian, there is no proof (that he is responsible for his ward's wife's maintenance).

(3) If the wife is sick or suffers from al-ratq or al-qarn,1 her maintenance does not cease according to the Imamiyyah, the Hanbali and the Hanafi schools,2 and it does according to the Maliki school if she is suffering from a serious disease or if the husband himself is similarly ill.

(4) If the wife apostatizes, her maintenance ceases according to all the schools. The maintenance of a wife belonging to the Ahl al-Kitab is wajib, and there is no difference between her and a Muslim wife from the viewpoint of maintenance.

(5) If a wife leaves her husband's home without his permission or refuses to reside in a house which fit her status, she shall be considered 'disobedient' and shall not be entitled to maintenance according to all the schools. The Shafi’i and the Hanbali schools further add: If she goes out with his permission for his need she shall be entitled to maintenance, and if she goes out not for his need, her maintenance shall cease even if he had granted her permission to do so.

(6) If she goes out for performing the obligatory Hajj pilgrimage, her maintenance shall cease according to the Shafi’i and the Hanafi schools, and according to the Imamiyyah and the Hanbali, it shall not.

(7) If the wife is obedient to the husband in granting him access and resides with him wherever he wants. but uses harsh language while talking to him, frowns in his face and opposes him in many matters, a is the case with many women, shall this be a cause for the maintenance to cease or not?

I have not come across the views of the schools on this question, but in my opinion if the wife has a hot-tempered disposition by nature and this is her way of behavior with everyone including her parents, she shall not be considered disobedient. But if she is not so by nature and is well-disposed towards everyone except her husband, she should be considered disobedient and not entitled to maintenance.

(8) If the wife refuses to obey her husband unless she is paid her mahr, agreed to be paid immediately, shall she be considered disobedient? The schools have divided the question-as mentioned in the chapter on mahr -between her refusing him before granting him access to her person and her refusal after granting him access willingly before taking the mahr.

In the first case, her refusal is due to a legally valid excuse and therefore she shall not be considered disobedient. In the second case, her refusal is without any valid excuse and. therefore, she shall be considered disobedient.

(9) I have come across an opinion expressed by the Hanbali’s that if a wife imprisons her husband, demanding her maintenance or mahr, her maintenance shall cease if he is indigent and unable to meet her monetary rights, and if he has the means to pay but delays doing so it shall not.

This opinion is both good and firm because if she has imprisoned him while he is an indigent man unable to pay, she is oppressing him; and if she has imprisoned a husband who has the means to pay her but delays doing it, he is oppressing her. A verse of the Qur'an says:

وَإِنْ كَانَ ذُو عُسْرَةٍ فَنَظِرَةٌ إِلَىٰ مَيْسَرَةٍ

And if the debtor is in straitness, let there be postponement till the lime of ease... (2:280)

And there is a tradition which says:

الواجد تحل عقوبته وعرضهز

It is permissible to punish and dishonor a person who possesses (but does not pay his liabilities).

It has also been narrated that 'Ali (A) used to detain one who delayed his creditors and release him if his penury was ascertained. Accordingly, a judge, after having ascertained that the circumstances of the husband are straitened and that the wife is entitled to maintenance, will order it to be considered a debt payable by the husband until further notification. If the judge determines the maintenance without mentioning the period during which it is to be paid, and the wife then imprisons the husband despite indigence and poverty, the husband is entitled to approach the judge to have her maintenance annulled from the date of his imprisonment, and the judge is bound to respond to his plea.

(10) If a wife is divorced while she is disobedient. she will not be entitled to maintenance; and if she is undergoing the 'iddah of a revocable divorce and turns disobedient during this period, her maintenance shall cease; but on her reverting to obedience, it shall resume from the date of his knowledge of her becoming obedient.

(11) If the wife remains at her father's home after -the recital of the marriage contract for a period of time and then claims maintenance for that period, shall she be entitled to it?

The Hanafis observe: She is entitled to maintenance even if she hasn't shifted to her husband's home, either because the husband hasn't asked her to do so, or has but she has refused to come until she is given her mahr (Ibn 'Abidin).

According to the Maliki and the Shafi’i schools, she is entitled to maintenance if the marriage has been consummated or she has offered herself to him.

The Hanbali school states: If she doesn't offer herself, she is not entitled to maintenance even if she remains in such a state for years.

The Imamiyyah consider her entitled to maintenance from the date of the consummation of marriage-even if such consummation should occur while she is with her family-and from the date of her asking him to take her along with him.

From the above-mentioned views, it follows that all the schools entitle her to maintenance if she has offered herself and showed her readiness to comply, and also if the marriage has been consummated, except that the Hanafis do not suffice with consummation but consider her willingness to confine herself also necessary. Apart from this, it has been pointed in the answer to the eighth question of this section that the wife has the right to refuse obedience till she is paid her prompt mahr, and her doing so is legally valid and does not cause her maintenance to cease.

(12) The Maliki, the Shafi’i and the Hanbali school state: An absent husband is similar to a husband present in regard to the rules of maintenance. Therefore, if an absent husband has any known assets, the judge shall order her maintenance to be paid from them, and if he does not possess such property, the judge shall pass an order of maintenance against him and the wife will borrow against his name. This is the procedure followed in Egypt (al-'Ahwal al-shakhsiyyah, Abu Zuhrah).

In al -'Ahwal al-shakhsiyyah (1942, pp. 269. 272) of Muhammad Muhyi al-Din 'Abd al-Hamid it is stated: The Hanafi school presumes that the absent husband has left in his property a share for his wife... and if he has not left any property, the judge shall consider him liable to pay the maintenance and will order the wife to borrow against his name. If she complains of not having found a person ready to lend her in her husband's name, the judge shall order the person on whom her maintenance is wajib to lend her on the supposition that she has no husband, and if this person refuses to lend her maintenance. The judge will imprison him.

The Imamiyyah observe: If the husband disappears after her surrendering herself to him, her maintenance is wajib upon him on the supposition that her obedience still persists from the time he left her; and if he disappears before consummation, she shall appear before the court and declare her obedience and willingness to live with him. The judge will then order the husband to present himself to inform him of her willingness. If the husband presents himself, or sends for her, or sends her, her maintenance, it suffices. But if he does not fulfill any of these alternatives, the judge shall allow a period of time sufficient for the issuance of a notification and the reception of his reply or for his sending of her maintenance; he will not issue any order during this period. After the expiry of this period he shall issue orders. If, for instance, such a period is two months, he shall order the payment of maintenance beginning from the date of expiry of the two months. Or if the wife informs the husband of her state without the mediacy of the judge and proves it, it shall also suffice. Then she shall be entitled to maintenance from that date.

(13) If the wife pleads before a judge to pass an order against the husband for the payment of her maintenance without mentioning the date from which she is entitled to receive it, the judge shall order payment from the date of her demanding maintenance, after ascertaining that the conditions have been fulfilled. If the wife mentions a date which is prior to the date of demand, shall the judge order payment of her maintenance for the period prior to the date of demand?

The Hanafis have said: Past maintenance may not be demanded from the husband; it is annulled by the passage of time except when the period is less than a month or if the judge has ordered its payment, because maintenance ordered to be paid by court remains a debt for the husband irrespective of the passage of time.

The Malikis observe: If the wife demands her past maintenance, and the husband possessed the means to pay her during that time, she has the right to such a claim against him even if it had not been ordered by the court. But if the husband was indigent and unable to pay during that period, she cannot claim her maintenance from him, because, according to this school, indigence annuls maintenance; and if his indigence is subsequent to his affluence, the maintenance for the period of indigence shall be void and he shall be liable for the payment of the maintenance pertaining to his period of affluence.

The Imamiyyah, the Shafi’i and the Hanbali schools state: The wife's maintenance remains his liability, if the conditions entitling the wife to maintenance are fulfilled, no matter how much time has passed and irrespective of whether he was affluent or indigent during that time and regardless of whether the judge had ordered such payment or not.

- 1. The Hanafis state: If she falls sick at her husband's home, she is entitled to maintenance; and if she falls sick before consummation and it is not possible to shift her to his home, she will not be entitled to maintenance. This opinion of the Hanafis is in accordance with their basic principle that maintenance is a compensation for her confining herself to her husband's home.

- 2. The Malikis state: The wife's maintenance ceases during the husband's indigence, irrespective of consummation. If he becomes well-off later on, she does not have the right to claim maintenance for the period during which he was indigent.

Determination of Maintenance

The schools concur that a wife's maintenance is wajib in all its three forms: food, clothing and housing. They also concur that maintenance will be determined in accordance with the financial status of the two if both are of equal status. Here, by the financial status of the wife is meant the financial status of her family and its standard of living.

But when one of them is well-off and the other indigent, the schools differ whether maintenance should be in accordance with the husband's financial status (commensurable with his means if he is well-off and the wife indigent, and commensurable with hi indigence if he is indigent and she is well-off), or whether the financial status of both should be considered and a median maintenance be fixed for her.

The Maliki and the Hanbali schools state: If the couple differ in financial status, a median course will be followed.

The Shafi'i school observes: Maintenance will be determined in accordance with the financial status of the husband, and the status of the wife will not be considered: this is regarding food and clothing. But as regards housing, it should be according to her status, not his (al-Bajuri, 1343 H., vol.2, p.197).

The Hanafi’s have two views. According to the first, the status of both will be considered, and according to the second only the status of the husband.

Most Imamiyyah legists; observe that maintenance will be fixed in accordance with her requirements of food, clothing, housing, servants and cosmetics used by women of her standing among her townspeople. Some Imamiyyah legists consider the husband's not the wife's financial status as the criterion for fixing maintenance.

Whatever the case, it is necessary that the financial condition of the husband be taken into consideration as the Qur'an has expressly stated:

أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنْتُمْ مِنْ وُجْدِكُمْ وَلَا تُضَارُّوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ ۚ وَإِنْ كُنَّ أُولَاتِ حَمْلٍ فَأَنْفِقُوا عَلَيْهِنَّ حَتَّىٰ يَضَعْنَ حَمْلَهُنَّ ۚ فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ ۖ وَأْتَمِرُوا بَيْنَكُمْ بِمَعْرُوفٍ ۖ وَإِنْ تَعَاسَرْتُمْ فَسَتُرْضِعُ لَهُ أُخْرَى

لِيُنْفِقْ ذُو سَعَةٍ مِنْ سَعَتِهِ ۖ وَمَنْ قُدِرَ عَلَيْهِ رِزْقُهُ فَلْيُنْفِقْ مِمَّا آتَاهُ اللَّهُ ۚ لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا مَا آتَاهَا

Lodge them where you are lodging, according to your means ..Let the man of plenty expend out of his plenty... . As for him who has his means of subsistence straitened, let him expend of what God has given him. God does not burden anyone ercep1 to the extent of what He has granted him... (65:6,7)

Under Egyptian law (act 25. 1929), the wife's maintenance, to be paid by the husband, is fixed in accordance with his financial condition, irrespective of the condition of the wife.

Here it becomes clear that providing a servant and expenses of tobacco, cosmetics, tailoring, etc., requires that two things be taken into consideration; the husband's condition and the custom prevailing among her likes. Therefore, if she demands more than that the husband is not obliged to comply, irrespective of his financial condition; and if she demands what her likes generally require, it is compulsory that the husband meet her demands if he is well-off , but not if his means are straitened. Here, the following questions are also pertinent:

Medical Expenses

If the wife needs medicines or surgery, will the husband be compelled to pay her medical and surgical expenses?

The answer to this question leads us to another one: Is medical care part of maintenance or something apart from it? When we refer to the canonical sources, we find that the Qur'an makes the wife's food and clothing wajib. The ahadith say: It is for the husband to satiate her hunger and to clothe her. There is no mention of medicine and medical treatment in the Qur'an and the traditions. The legists have limited maintenance to the providing of food, clothing and housing, and have not touched the matter of medical care. On the contrary, some of them have explicitly said that it is not wajib for the husband. In al-Fiqh 'ala al-madhahib al-'arba'ah, it has been narrated from the Hanafis that medicines and fruits are not wajib on the husband during the period of dispute between the couple. In the Imami work al-Jawahir (vol. 5) it is stated: The wife is not entitled to claim from the husband medicine during illness, or the expenses of cupping and bathing except during winter. Al-Sayyid Abu al-Hasan observes in al-Wasilah: If the medicines are of common use and needed for common ailments, such medicines are included in maintenance and are wajib upon the husband; but if the medicines are for difficult cures and uncommon ailments, which require expensive treatment, they are not included in maintenance and it is not the husband's duty to provide them.

This was a summary of the opinions of the legists which I have come across. It is also said that the treatment of simple diseases, such as malaria and ophthalmia, is included in maintenance, as observed by the author of al-Wasilah. But regarding surgeries, which require large sums of money, if the husband is poor and the wife is financially well-off she will bear the expenditure; and if he is a man of means while she is poor, he will meet the expenses - for of all people the husband, being her life partner, is most entitled to be kind to her. If, both of them are indigent, they will share in meeting the expenses.

In any case, it is certain that the Shari'ah has not explicitly defined the limits of maintenance, but has only made it wajib on the husband, leaving it to be determined in accordance with 'urf (usage). Therefore, we should refer to 'urf and not make anything wajib for the husband except after ascertaining that it is considered part of maintenance by 'urf. And there is no doubt that 'urf disapproves the conduct of a husband who while possessing the means neglects his wife who needs medical attention, exactly as it considers a father blameworthy if he neglects his ailing children while having the means to buy medicines and pay the doctor's fee.

Expenses of Child-birth

The essential expenses of child-birth and the obstetrician's fee will be paid by the husband when called upon by need.

Adjustment of Maintenance

If a judge determines a certain sum of money, or the spouses mutually settle it in lieu of maintenance, it is valid to adjust it by increasing or decreasing it in accordance with changes in prices or changes in the financial condition of the husband.

The Wife's Housing

The Imamiyyah, the Hanafi and the Hanbali schools state: It is necessary that the house provided to the wife befit the couple's status, and that the husband's family and children not reside in it except by her consent.

Marriage

The Malikis observe: If the wife is of a humble status, she may not refuse to stay with the husband's relatives, and if of a high social status she can refuse to stay with them except if it had been mentioned as a condition in the contract. If so, it is wajib for her to reside with his family on being provided a room; where she can enjoy privacy whenever she desires and does not suffer from mistreatment by his family.

According to the Shafi’i school, it is wajib that the housing suit her and not his status, even if he is poor.

The truth is that it is necessary to consider the condition of the husband in everything concerning maintenance, without there being any difference between food, clothing and housing in this regard, because the Qur'an says,

أَسْكِنُوهُنَّ مِنْ حَيْثُ سَكَنْتُمْ مِنْ وُجْدِكُمْ

Lodge them where you lodge, according to your means, (65:6)

on condition that she have an independent home and does not suffer by staying in it.

A Working Wife

The Hanafis are explicit that a woman if she works and does not stay at home is not entitled to maintenance if the husband demands her to stay at home and she does not concede to his demand. This view is in concurrence with what the other schools hold regarding the impermissibility of her leaving her home without his permission. The Shafi’i and the Hanbali schools further state, as mentioned earlier, that if she leaves home with his permission for meeting her own requirements, her maintenance ceases.

But a correct view would be to differentiate between a husband who knows at the time of marriage that she is employed and her employment prevents her staying at home, and a husband who is ignorant about her employment at the time of marriage. Therefore, if he knew and remained silent and did not include a condition that she leave her job, he has no right in this case to ask her to forgo her job; and if he demands and she refuses to comply, her maintenance shall not cease, because he has concluded the contract with the knowledge that she works. And many men marry working women with an intention of exploiting them, and when they are unable to do so they ask the wives to stop working with the purpose of harming them (financially).

But if the husband does not know that she works at the time of marriage, he can demand that she stop working, and if she does not comply, she shall not be entitled to maintenance.

Surety for Maintenance

Is the wife entitled to claim from her husband a surety to secure her future maintenance if the husband intends to travel alone without leaving anything for her?

The Hanafi, the Maliki and the Hanbali schools observe: She is entitled to do so, and he is bound to arrange a surety for maintenance, and on his refusal she can ask that he be prevented from making the journey. The Malikis further add: She is entitled to claim from him advance payment of maintenance if he intends to go for a usual journey, and if the wife accuses him of planning to go for an unusual journey she has the right to claim immediate payment of maintenance for the period of a usual journey and to provide her a surety for the period which exceeds the period of a usual journey.

The Imamiyyah and the Shafi'i schools state: She is not entitled to claim a surety for her future maintenance because its payment hasn't become due, and in the future the possibility of its ceasing due to her disobedience or divorce or death is always present.

My opinion is that she has the right to claim a surety because the cause on whose basis a surety is demanded is present, and this is her present obedience. Therefore, al-Shaykh Ahmad Kashif al-Ghita' has observed in his Safinat al-najat (bab al-daman): But the opinion (that she can claim a surety) is not farfetched if not opposed by consensus (ijma'), so that her future maintenance is insured like her past and present maintenance.

No the matter leads to consensus, it lacks strength from the Imami viewpoint, because, according to their principles of jurisprudence, every consensus reached after the period of the Imams (A) faces the possibility of being refuted. Thus if there is a possibility that the consensus of the concurring legists is based on their belief that future maintenance does not become payable presently because it is not correct to provide surety for something which has not become payable, the argument on the basis of consensus fails due to the presence of this possibility. Now it should be seen whether the rule (that everything which has not yet become payable does not require a surety) on which the legists have based their argument is correct and whether it can be applied here or not. Here, as already explained, the cause (the wife's obedience) is present, which is sufficient to justify surety. Accordingly, the wife is entitled to claim a surety for her maintenance if the husband intends to travel, especially when he cannot be relied upon and is known to be irresponsible.

Dispute between Spouses

If after the husband accepts the wife's right to maintenance, the two differ about the actual payment of maintenance (she denying that he has paid, and he claiming to have paid it) the Hanafi, the Shafi'i and the Hanbali schools observe: The wife's word shall be accepted because she ' the refuter and the burden of proof is not on her.

The Imamiyyah and the Maliki schools state: If the husband resides with her in the same house, his word will be accepted, otherwise her word.

If the husband concedes that he has not paid maintenance on the excuse that she is not entitled to it due to her not surrendering herself to him, his word will be accepted according to all the schools. The consensus on this issue is a corollary to the consensus of the schools on the issue that mahr becomes payable on the conclusion of the contract and becomes fully payable on consummation: but maintenance does not become payable solely on the conclusion of the contract, it is necessary for her to surrender herself to the husband. It is the practice of the Shari'ah courts of Lebanon, both Sunni and Shii, when the spouses differ regarding disobedience (nushuz) (he claiming that she is disobedient and she charging him with disobedience), to order the husband to provide a suitable house and to order the wife to reside in it. If the husband refuses to provide a house, he will be considered disobedient; and if he provides a house which fulfils all the conditions and she refuses to reside in it and to obey him, she will be considered disobedient.

The Wife's Claim of Expulsion

If the wife leaves her husband's home claiming that she has been expelled, and he denies this, the burden of proof will rest on her and he will be made to take an oath; because it is not valid for her to leave home without an acceptable excuse, and as she claims the presence of such an excuse, she is burdened with proving it.

Loss of Maintenance

When the husband provides his wife with maintenance for the future, and then it is stolen or destroyed while in her possession, it is not wajib upon the husband to replenish it, irrespective of whether such loss occurs due to an unavoidable cause or on account of her negligence.

Husband's Debt Claim against Wife

If a wife owes a debt to her husband, can he adjust this debt against her present or future maintenance?

The Imamiyyah legists have dealt with this issue; they observe: If she is financially well-off and yet refuses to repay the debt, it is permissible for him to adjust it from her day-to-day maintenance, which means that he consider her debt to him as her maintenance for each day, separately. But if she is financially straitened, he cannot do so; because any payment towards debt should be from what exceeds her daily expenditures.

Maintenance of Relatives

Who are the relatives entitled to maintenance and who amongst them is liable to provide maintenance? What are the conditions which make such maintenance wajib?

Definition of a Relative's Maintenance

According to the Hanafi’s, the criterion for the responsibility of the relative to provide maintenance of another is the prohibited degree of marriage, so that if one of them is supposed a male and the other a female, marriage between them would be considered haram.

Therefore, this responsibility includes fathers-how high so ever-and sons-how low so ever-and also includes brothers, sisters, uncles and aunts, both paternal and maternal, because marriage between any two of them is prohibited.

The nearest relative shall be liable to provide maintenance, and affinity here has nothing to do with the title to inheritance. Therefore, if there is someone in the two classes of lineal ascendants and descendants, maintenance will be wajib on him, even if he is not entitled to inherit (from the person he is liable to maintain). One not belonging to these two classes will not be liable to provide maintenance, though he should be entitled to inherit. For example, if a person has a daughter's son and a brother, his maintenance will be wajib upon the former and not the latter, though the latter alone be entitled to the entire legacy to the exclusion of the former (al-Durar fi sharh al-Gharar, vol. 1, bab al-nafaqat).

Similarly, between two relatives of the same class, the nearer one will be responsible, even if he isn't entitled to any share in the legacy. Therefore, if a child has a paternal great grandfather and a maternal grandfather, his maintenance will be wajib upon the latter not the former, though the former should be an heir to the exclusion of the other. The secret here is that the maternal grandfather is nearer though he does not inherit, while the paternal great grandfather is comparatively distant, though he is an heir.

The Hanafis also state: The well-to-do son is responsible for the maintenance of his indigent father's wife, and he is also liable to get his indigent father married if he needs a wife.

The Malikis observe: Maintenance is wajib only on parents and children, not on other relatives. Thus, a grandson is not responsible to maintain his paternal or maternal grandfathers or grandmothers, and, reciprocally, a grandfather is not liable to maintain his grandsons and granddaughters. On the whole, the responsibility for maintenance is limited to parents and children, to the exclusion of grandparents and grandchildren.

They also state: It is wajib upon a well-to-do son to maintain the servant of his indigent parents, even if they don't need him; but it is not wajib for a father to maintain his son's servant. A son is also liable to maintain his father's wife and her servant and have his father married to one or more wives, if one wife does not suffice.

The Hanbalis state: It is wajib that fathers, how high so ever, provide and receive maintenance. Similarly, it is wajib that sons, how low so ever, provide and receive maintenance, irrespective of their title to inheritance. Maintenance of relatives not belonging to the two classes is also wajib if the person liable to provide maintenance inherits from the person being maintained either by fard1 or by ta'sib2; but if excluded from inheritance, he will not be responsible for maintenance. Thus, if a person has an indigent son and a well-to-do brother, neither may be compelled to maintain him, because the son's indigence relieves him of the responsibility, and the brother by being excluded from inheritance due to the son's presence (al-Mughni, vol. 7, bab al-nafaqat).

They also state: It is wajib on the son to arrange for his father's marriage and to maintain his wife, in the same way as it is wajib on the father to have his son married if he is in need of marriage.

According to the Imamiyyah and the Shafi'i schools, it is wajib for sons to maintain their fathers and mothers, how high so ever, and it is wajib for fathers to maintain sons and daughters, how low so ever. The obligation of maintenance does not transcend these two main lineal classes to include others, such as brothers and paternal and maternal uncles.

But the Shafi’is are of the view that a well-to-do father is liable to have his indigent son married if in need of marriage: and a son is likewise bound to arrange for his indigent father's marriage if in need of marriage. Moreover, the liability for a person's maintenance includes the maintenance of his wife (Maqsad al-nabih, bab nafaqat al-'aqarib).

Most Imamiyyah legists state: It is not wajib to arrange for the marriage of a person whose maintenance is wajib, irrespective of whether he is father or son. Similarly, it is not wajiib for a son to maintain his father's wife if she is not his mother, or for a father to maintain his son's wife, because the canonical proofs (adillah) which make maintenance wajiib include neither the father's wife nor the son's, and an obligation is assumed to be non-existent until proved.

Conditions for the Wujub of Maintenance

The following conditions are necessary for making the maintenance of one relative wajib upon another.

1. The person to be maintained must be in need of maintenance. Therefore, maintaining a person who is not needy is not wajib. The schools differ regarding a person who is needy and can earn his livelihood but does not do so, as to whether it is wajib to maintain him or not.

The Hanafi and the Shafi’i school state: The inability to earn is not a necessary condition for the wajib of the maintenance of fathers and grandfathers. Therefore, their maintenance is wajib on sons even if they have the ability to work but neglect to do so. Regarding other relatives who are able to make a living for themselves, their maintenance is not wajib; rather, they will be compelled to make a living, and a one who neglects to work or is sluggish commits only a crime against himself. But the Shafi'is say regarding a daughter: Her maintenance is wajib on the father until she is married.

The Imamiyyah, the Maliki and the Hanbali schools state: If one who was earlier making his livelihood by engaging in a trade that suited hi condition and status later neglects to do so, his maintenance is not wajib upon anyone, irrespective of whether it is the father or the mother or the son. The Malikis agree with the Shafi’is' position regarding a daughter and the reason for this is that formerly women were considered generally incapable of earning their own livelihood.

2. That the maintainer be well-off, according to all the schools, except the Hanafi’s who say: Being well-to-do of the maintainer is a condition only for the maintenance of those who are neither ascendants nor descendants; but financial capacity is not a condition in the maintenance of the scion by one of the parents or the maintenance of the parents by the scion. The only condition here is the presence of the actual ability to maintain or the presence of the ability to earn. Therefore, a father who is capable of work will be ordered to maintain his child, and similarly a son with respect to his father, except where one of them is indigent and incapable of making an earning, such as due to blindness. etc.

The schools differ regarding the degree of financial ease necessary to cause the liability for providing maintenance to a relative. According to the Shafi'i school, it is the surplus over the daily expenditure of his own, his wife's and his children's.

The Malikis add to this the expenditure incurred upon servants and domestic animals.

According to the Imamiyyah and the Hanbali schools: It is the surplus over the daily expenditure of oneself and one's wife, as the maintenance of descendants and ascendant belongs to the same category.

Hanafi legists differ in defining the state of financial ease. According to some of them, it is possession of an amount of wealth which gives rise to the incidence of zakat (nisab); according to others, it should be enough to prohibit his taking of zakat. The third opinion differentiates between the farmer and the worker, allowing the farmer his and his family's expenditure for a period of one month and the worker a day's expenditure as deduction

3. According to the Hanbalis, their belonging to the same religion is necessary: thus, if one of them is a Muslim and the other a non-Muslim, maintenance will not be wajib (al-Mughni , vol. 7).

The Maliki, the Shafi’i and the Imamiyyah schools state: Their belonging to the same religion is not necessary. Therefore, a Muslim can maintain a relative who is not a Muslim, as is the case when maintenance is provided by a Muslim husband to his wife belonging to Ahl al-Kitab.

The Hanaf'is observe: Belonging to the same religion is not required between ascendants and descendants, but necessary between other relatives. Therefore, a Muslim will not maintain his non-Muslim brother and vice versa (Ab Zuhrah).

Determination of Relative’s Maintenance

It is necessary that maintenance paid to a relative be sufficient to cover his/her essential needs, such as food, clothing and housing, because maintenance has been made wajib to protect life and to provide its needs. Thus it is to be determined in accordance with the needs (al-Mughni, vol. 7. al-Tawahir, vol. 5).

It should be noted that if a relative entitled to maintenance receives the maintenance of a day or more through litigation, through gift, zakat or some other manner, the maintenance due to him will be deducted to the extent of what he reived through these means, even if the judge has ordered the payment of maintenance.

The Order of Relatives on Whom Maintenance is Wajib

The Hanafis observe: If there is only one person responsible for maintenance, he will pay it; if two or more belonging to the same category and capacity are responsible-such as two sons or two daughters-they will share equally in providing maintenance, even if they differ in wealth, after their financial capacity has been proved.3

But where they are of different categories of relationship or of varying capacities, there is confusion in the views of Hanafi legists in providing the order of those responsible for maintenance (al-'Ahwat al-shakhsiyyah, Abu Zuhrah).

The Shafi'is state: If a person in need has a father and a grandfather who are both well-off, his maintenance will be provided solely by the father. If he has a mother and a grandmother, the maintenance will be solely provided by the mother. If both the parents are there, the father will provide the maintenance. If he has a grandfather and a mother, the grandfather will provide the maintenance. If he has a paternal grandmother and a maternal grandmother according to one opinion, both are equally responsible according to another opinion. the paternal grandmother will be solely liable (Maqsad al-nabih, nafaqat al-'aqarib).

The Hanbalis state: If a child does not have a father, his maintenance will be on his heirs; and if he has two heirs, they will contribute in proportion to each's share in legacy. If there are three or more heirs, they will contribute in proportion to their share in legacy. Tutt if he has a mother and a grandfather, the mother will contribute one-third of maintenance and the grandfather the remainder, as they inherit in the same proportion (al-Mughni. vol. 7).

The Imamiyyah state: The child's maintenance is wajib on the father, If the father is dead or indigent, its maintenance will lie upon the paternal grandfather; and if the grandfather is dead or indigent, the mother will be liable for maintenance. After him, her father and mother along with the child's paternal grandmother will share equally in the maintenance of the grandchild if they are financially capable. But if only some of them are well-off, the maintenance will lie only on those who are such.

If an indigent person has father and a son, or father and a daughter, they will contribute to his maintenance equally. Similarly, if he has many children, it will be shouldered equally by them without any distinction between sons and daughters. On the whole, the Imamiyyah consider the nearness of relationship a criterion while determining the order of relatives who are liable to provide maintenance; on their belonging to the same class, they are compelled to contribute equally without any distinction between males and females or between ascendants and descendants, except that the father and the paternal grandfather are given priority over the mother.

- 1. By fard is meant the specific share of inheritance decreed for an heir by the Qur'an.

- 2. Al-Tasib is a doctrine accepted by the Sunni schools. It applies in situations where the total shares of the decreed sharers fall short of the total legacy. Here, the Sunni schools assign the balance to be inherited by distant relatives, as the nearer relative have already received their decreed shares and are not entitled to anything in addition to their decreed shares. For example, if a person dies leaving behind a daughter and an uncle, the decreed share of the daughter being half, the other half will be inherited by the uncle and the daughter will not be entitled to inherit more than her decreed share.
The Imamiyyah do not accept this doctrine and in the above example entitle the daughter to inherit the whole heritable interest to the exclusion of the father's uncle. They apply the rule: the nearer in degree excludes the remote.

- 3. Some judges distribute the maintenance of a relative between those on whom his maintenance is wajib in accordance with the financial capacity of each. Therefore, if an indigent father has two sons, one of them very rich, and the other merely well-off, the first will contribute more than the second to the father's maintenance.
The Hanafis give no weightage to this difference in financial capacity and consider the two equally liable after their capacity has been proved. This is a right required by the legal bases, and the statements of the author of al-Jawahir also bear this out where he says: If he has a son who is presently well-off and another son who is in the course of becoming such, the two will contribute equally because the applicable adillah are unconditional.

7. Divorce

Divorce

The Divorcer (al-Mutalliq)

A divorcer should possess the following characteristics:

1. Adulthood: Divorce by a child is not valid, even if of a discerning age (mumayyiz), according to all the schools except the Hanbali, which observes: Divorce by a discerning child is valid even if his age is below ten years.

2. Sanity: Divorce by an insane person is not valid, irrespective of the insanity being permanent or recurring, when the divorce is pronounced during the state of insanity. Divorce by an unconscious person and one in a state of delirium due to high fever is also not valid. The schools differ regarding the state of intoxication. The Imamiyah observe: Such a divorce is not valid under any circumstance. The other four schools1 remark: The divorce is valid if the divorcer has voluntarily consumed an unlawful intoxicant. But if he drinks something permissible and is stupefied, or is coerced to drink, the divorce does not materialize.

Divorce by a person in a fit of anger is valid if the intention to divorce exists. But if he loses his senses completely, the rule which applies to an insane person will apply to him.

3. Free volition: All the schools except the Hanafi concur that divorce by a person under duress does not take place in view of the tradition:

رُفع عن أُمتي الخطأ والنسيان وما استكرهوا عليه

My ummah have been exculpated of genuine mistakes, forgetfulness, and that which they are coerced to do.

The Hanafis say: Divorce by a person under duress is valid.
The practice of the Egyptian courts has been not to recognize the divorce by a person under duress or intoxication.

4. Intention: According to the Imamiyyah, divorce pronounced unintentionally or by mistake or in jest is not valid.

Abu Zuhrah says (page 283): The Hanafi school considers divorce by all persons except minors, lunatics and idiots as valid. Thus divorce pronounced by a person in jest or under intoxication by an unlawful intoxicant, or under duress, is valid. On page 286 he writes: It is the accepted view of the Hanafi school that a divorce by mistake or in a state of forgetfulness is valid. On page 284 he observes: Malik and al-Shafi'i concur with Abu Hanifah and his followers regarding a divorce pronounced in jest, while Ahmad differs and regards such a divorce as invalid.

Ibn Rushd states (Bidayat al-mujtahid, vol. 2, p. 74): Al-Shafi'i and Abu Hanifah have said, "Intention (niyyah) is not required in divorce".

The Imamiyyah have narrated from the Imams of the Ahl al-Bayt (A):

لا طلاق إلاّ لمن أراد الطلاق ، لا طلاق إلاّ بنية

No divorce (takes effect) except by one who intends divorce. Divorce does not take place except by intention.

The author of al-Jawahir says: If one pronounces divorce and subsequently denies intention, his word shall be accepted as long as the divorcee is undergoing her 'iddah, because the fact of his intention cannot be known except from him.

Divorce by the Guardian (Talaq al-Wali)

The Imamiyyah, the Hanafi and the Shafi'i schools state: A father may not divorce on behalf of his minor son, because of the tradition:

الطلاق لمن أخذ بالساق

The Malikis state: A father may divorce his minor son's wife in the khul' form of divorce. Two opinions are ascribed to Ahmad.

The Imamiyyah observe: When a child of an unsound mind matures, his father or paternal grandfather may pronounce divorce on his behalf if it is beneficial for him. If the father and the paternal grandfather do not exist, the judge may pronounce the divorce on his behalf. As mentioned earlier, the Imamiyyah allow the wife of a lunatic to annul the marriage.

The Hanafis state: If a lunatic's wife suffers harm by living with him, she may raise the issue before a judge and demand separation. The judge is empowered to pronounce divorce to rescue her from the harm and the husband's father has no say in this affair.

All the schools concur that divorce by a stupid husband (safih) and his agreeing to khul' are both valid.2

The Divorcee (al-Mutallaqah)

There is consensus that the divorcee is the wife. For the validity of the divorce of a wife with whom intercourse has occurred, the Imamiyyah require that she should not have undergone menopause nor she should be pregnant, that she be free from menses at the time of divorce, and that intercourse should not have occurred during the period of purity. Thus, if she is divorced during her menses or nifas,3 or in a period of purity in which she has been copulated with, the divorce will be invalid.

Al-Razi in his exegesis of the first verse of Surat al-Talaq:

يَاأَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمْ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ

has said, “By 'iddah is meant the period of purity from menses, by consensus of all Muslims. A group of exegetes has observed that by divorce at the time of ‘iddah is meant that the wife may be divorced only during the period of purity in which intercourse has not occurred. In brief, it is compulsory that divorce occur during the period of purity, otherwise it will not be according to the Sunnah, and divorce according to the Sunnah is conceivable only in the case of an adult wife with whom marriage has been consummated, and one who is neither pregnant nor menopausal."

For there is no sunnah concerning the divorce of a minor wife, a wife who has not been copulated with, or a wife in menopause or pregnancy. This is exactly what the Imamiyyah hold.

In al-Mughni (vol.7, p.98, 3rd.ed.) the author states: "The meaning of a sunnah divorce (talaq al-sunnah) is a divorce in consonance with the command of God and His Prophet (S); it is divorce given during a period of purity in which intercourse with her has not occurred." He continues (p. 99): "A divorce contrary to the sunnah (talaq al-bid’ah) is a divorce given during menses or during a period of purity in which she has been copulated with. But if a person pronounces such a divorce, he sins, though the divorce is valid according to the view generally held by the scholars. Ibn al-Mundhir and lbn 'Abd al-Birr have said: None oppose the validity of this form of divorce except the heretics (ahl al-bida' wa al-dalalah)"! If to follow the command of Allah and the Sunnah of His prophet (S) is heresy and misguidance, then it is of course proper that following Satan be called 'sunnah' and 'guidance'.

Whatever the case, the Sunnis and the Shi'ah concur that Islam has prohibited the divorcing of an adult, non-pregnant wife with whom marriage has been consummated, who is either undergoing periods or has been copulated with during her period of purity. But the Sunni schools add that the Shari'ah's prohibition makes the divorce haram (unlawful) but not invalid, and one who pronounces divorce in the absence of these conditions sins and is liable to punishment, but the divorce will be valid. The Shi'ah state: The Shari'ah's prohibition is for invalidating such a divorce, not for making it haram, for the mere pronouncing of divorce is not haram and the sole purpose is to nullify the divorce as if it had not taken place at all, exactly like the prohibition of sale of liquor and swine, where the mere recital of the contract of sale is not haram, only the transfer of ownership fails to take effect.

The Imamiyyah permit the divorce of the following five classes of wives, regardless of their state of menstruation or purity:

1. A minor wife under the age of nine.
2. A wife whose marriage has not been consummated, regardless of whether she was a virgin or not, and irrespective of his having enjoyed privacy with her.
3. A menopausal wife; menopause is taken to set in at fifty for ordinary women and at sixty for Qurayshi women.
4. A wife who is pregnant.
5. A wife whose husband has been away from her for a whole month and the divorce is given during his absence from her, since it is not possible for him to determine her condition (whether she is in her menses or not). A prisoner husband is similar to a husband who has been away.

The Imamiyyah state: The divorce of a wife who has reached the age of menstruation but does not have menses due to some defect or disease or childbirth, is not valid unless the husband abstains from intercourse with her for three months. Such a woman is called al-mustarabah (a term derived from rayb, doubt).

The Pronouncement of Divorce (al-Sighah)

The Imamiyyah observe: Divorce requires the pronouncement of a specific formula without which it does not take place. This formula is:
أنتِ طالق (you are divorced), or فلانة طالق ('so and so' is divorced), or هي طالق (she is divorced).
Thus if the husband uses the words: الطالق or المطلّقة or طُلّقت, or الطلاق or المطلّقات etc., it will have no effect even if he intends a divorce because the form طالق is absent despite the presence of its root (t-l-q). It is necessary that the formula be properly recited without any error in pronunciation and that it be unconditional. Even a condition of certain occurrence such as, 'at sunrise', etc. is not adequate.

If the husband gives the wife the option of divorcing herself and she does so, divorce will not take place according to Imami scholars. Similarly, divorce will not take place if the husband is questioned. "Have you divorced your wife", and he answers affirmatively with the intention of effecting a divorce. If the husband says, "You are divorced, three times", or repeats the words, "You are divorced", thrice, only a single divorce takes place if the other conditions are fulfilled. Divorce does not take place through writing or by gesticulation, unless the divorcer is dumb, incapable of speech. It is necessary that the divorce be recited in Arabic when possible. It is better for a non-Arab and a dumb person to appoint an attorney, if possible, to recite the divorce on his behalf. Similarly, according to the Imamiyyah, divorce will not take place by an oath, a vow, a pledge or any other thing except by the word طالق, on fulfillment of all the limitations and conditions.

The author of al-Jawahir, citing a statement from al-Kafi, says: "There can be no divorce except (in the form) as narrated by Bukayr ibn A'yan, and it is this: The husband says to his wife (while she is free from menses and has not been copulated with during that period of purity): انتِ طالق (You are divorced), and (his pronouncement is witnessed by two just ('adil) witnesses. Every other form except this one is void". Then the author of al-Jawahir quotes al-Intisar to the effect that there exists consensus on this issue among the Imamiyyah.

Consequently, the Imamiyyah have restricted the scope of divorce to its extreme limits and impose severe conditions regarding the divorcer, the divorcee, the formula of divorce, and the witnesses to divorce. All this is because marriage is a bond of love and mercy, a covenant with God. The Qur’an says:

و كيف تأخذونهُ و قَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَأَخَذْنَ مِنْكُمْ مِيثَاقاً غَلِيظاً

How can you take it back after one of you hath gone in into the other, and they (the wives) have taken a strong pledge from you? (4:21)

وَمِنْ آيَاتِهِ أَنْ خَلَقَ لَكُمْ مِنْ أَنفُسِكُمْ أَزْوَاجاً لِتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُمْ مَوَدَّةً وَرَحْمَةً

And one of His signs is that He created mates for you from yourselves that you may find tranquility in them, and He ordained between you love and compassion. (30:21)

وَلاَ تُمْسِكُوا بِعِصَمِ الْكَوَافِرِ

...And hold not to the ties of marriage of unbelieving women.... (60:10)

Therefore, it is not permissible in any manner that one break this bond of love and compassion, this pledge and covenant, except with a knowledge that leaves no doubt that the Shari'ah has surely dissolved the marriage and has broken the tie which it had earlier established and confirmed.

But the other schools allow divorce in any manner in which there is an indication of it, either by oral word or in writing, explicitly or implicitly (such as when the husband says: "You are haram for me", or "You are separated" or "Go, get married", or "You are free to go wherever you want," or "Join your family," and so on). Similarly, these schools allow an unconditional as well as a conditional divorce (such as when the husband says: "If you leave the house, you are divorced," or. "If you speak to your father you are divorced," or "If I do this, you are divorced," or "Any woman I marry, she is divorced:" in the last case the divorce takes place as soon as the contract of marriage is concluded!). There are various other pronouncements through which divorce is effected, but our discussion does not warrant such detail. These schools also permit a divorce in which the wife or someone else has been authorized to initiate it. They also allow a triple divorce by the use of a single pronouncement. The legists of these schools have filled many a long page with no result except undermining the foundation of the family and letting it hang in the air.4

The Egyptian government has done well in following the Imamiyyah in most aspects of divorce. Apart from this, the four schools do not consider the presence of witnesses a condition for the validity of divorce, whereas the Imamiyyah consider it an essential condition. We hand over the discussion to al-Shaykh Abu Zuhrah regarding this issue.

Divorce and Witnesses

In al-Ahwal al-shakhsiyyah (p. 365), al-Shaykh Abu Zuhrah has observed: "The Twelve-Imami Shi’i legists and the Isma'iliyah state: A divorce does not materialize if not witnessed by two just ('adil) witnesses, in accordance with the Divine utterance regarding the rules of divorce and its pronouncement:

فَاذا بلغنَ اجَلَهُنَّ فَأمسِكوهُنَّ بِمعروفٍ أو فارِقوهُنَّ بِمعروفٍ وَأَشْهِدُوا ذَوَى عَدْلٍ مِنْكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ ذَلِكُمْ يُوعَظُ بِهِ مَنْ كَانَ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الآخِرِ وَمَنْ يَتَّقِ اللَّهَ يَجْعَلْ لَهُ مَخْرَجاً * وَيَرْزُقْهُ مِنْ حَيْثُ لاَ يَحْتَسِبُ

Then when they (the wives) have reached their 'iddah retain them honourably, or part from them honourablv. And have two just men from among yourselves bear witness, and give testimony for Allah's sake. By this then is admonished he who believes in Allah and the Last Day. And whoever is careful of (his duty to) Allah, He will provide for him an outlet and give him sustenance from whence he never reckoned .... (65:2-3)

This command about the witnesses in the Qur'an follows the mention of divorce and the validity of revoking it. Therefore, it is appropriate that the calling in of witnesses should be related to divorce. Moreover, the reason given for calling in the witnesses, that God seeks thereby to admonish those who believe in God and the Last Day, confirms this interpretation, because the presence of just witnesses is not without the good advice which they would offer to the couple; and this could bring about for them an escape from divorce, which is the most hated of lawful things in the eyes of God. If it were for us to choose the law to be acted upon in Egypt, we would choose this opinion, which requires the presence of two just witnesses for effecting a divorce".

Together with the restrictions that the Imamiyyah have laid down for the divorcer, the divorcee, and the pronouncement of divorce, they have also laid down an additional limitation regarding the witnesses by demanding that if all conditions are fulfilled except that the two just witnesses do not hear the pronouncement of the divorce, the divorce will not take place. Therefore, a single witness will not suffice even if he is a good substitute, not even if he is an infallible (ma'sum) person.5

Further, the witnessing of the pronouncement by one of them by listening and of the other by testifying to their admission (of having concluded the divorce) is not sufficient. The testimony of a group of people will also not suffice, even if it is big enough to make the divorce a known public fact. The testimony of women, with or without the testimony of men, is not sufficient. Similarly, if the husband pronounces the divorce and then brings in the witnesses, it will have no effect.

The Case of a Sunni Husband and a Shi'i Wife

If a Sunni husband divorces his Shi’i wife, either through a conditional divorce contingent upon something, or in a period of purity during which sexual intercourse has occurred, or during menses or nifas, or without two just witnesses being present or by an oath of divorce, or by saying, حبلك على غاربك ; “Go wherever you want,” or in any other form which is valid in accordance with Sunni law and invalid according to Shi’i law, is such a divorce considered valid by the Shi'ah, so that the woman may remarry after completing her 'iddah?

The answer is that there is consensus among the Imami jurists that every sect is bound by its own precepts,6 and that the transactions of its followers, as well as their affairs pertaining to inheritance, marriage and divorce, are valid if performed according to rules of their shari'ah. A tradition has been narrated from the Imams of Ahl al-Bayt (A):

ألزموهم من ذلك ما ألزموا أنفسهم

Bind them with the laws with which they have bound themselves.

In another tradition, al-Imam al-Sadiq (A) was questioned regarding a woman who had been divorced by a Sunni husband against the principles of the Sunnah, whose compliance is necessary for the validity of a divorce according to the Shi'ah. The Imam (A) replied:

تتزوج، ولا تُترك المرأة من غير زوج

She will marry, and a woman shall not be left without a husband.

In a third tradition it is stated:

يجوز على أهل كل دين ما يستحلّون

For the followers of every religion, that which they consider lawful is permissible for them.

A fourth tradition says:

من دان بدين قوم لزمته أحكامهم

One who follows the religion of a particular sect, is bound by its rules, (al-Jawahir, vol. 5, the discussion regarding sighat al-talaq).

Consequently, if a Shi'i husband divorces his Sunni wife according to the principles of her school and not his, the divorce is invalid, and if a Sunni divorces his Shi'i wife according to the principles of his own school, the divorce is valid.

Revocable and Irrevocable Divorce

A divorce is either revocable or irrevocable. The schools concur that a revocable divorce is one in which the husband is empowered to revoke the divorce during the 'iddah, irrespective of the divorcee's consent. One of the conditions of a revocable divorce is that the marriage should have been consummated, because a wife divorced before consummation does not have to observe the 'iddah in accordance with verse 49 of Surat al-Ahzab:

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمْ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا

O believers! When you marry the believing women and then divorce them before you touch them, you are not entitled to reckon for them an 'iddah....

Among the other conditions of a revocable divorce are that the divorce should not have been given on the payment of a consideration and that it should not be one which completes three divorces.

The divorcee in a revocable divorce enjoys the rights of a wife, and the divorcer has all the rights of a husband. Therefore, both will inherit from each other in the event of death of one of them during the 'iddah. The deferred mahr payable on the occurrence of any of the two events, death or divorce, will become payable only after the expiry of the 'iddah if the husband does not revoke the divorce during that period. On the whole, a revocable divorce does not give rise to a new situation except its being accountable for ascertaining whether the number of divorces has reached three.

In an irrevocable divorce, the divorcer may not return to the divorced wife, who belongs to one of the following categories:

1. A wife divorced before consummation, by consensus of all the schools.

2. A wife who has been divorced thrice. There is consensus here as well.

3. A divorcee through khul'. Some legists consider this form of divorce void and say that it is not a divorce at all.

4. A menopausal divorcee, in the Imami school, which observes: She has no 'iddah and the rules applicable to a divorcee before consummation apply to her as well. According to it, in verse 4 of Surat al-Talaq:

وَاللاَّئِي يَئِسْنَ مِنْ الْمَحِيضِ مِنْ نِسَائِكُمْ إِنْ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلاَثَةُ أَشْهُرٍ وَاللاَّئِي لَمْ يَحِضْنَ

If you are in doubt concerning those of your wives who have ceased menstruating, know that their waiting period is three months, and (the same is the waiting period of) those who have not yet menstruated ...

the phrase· اللائي يئسن does not imply those women who are known to have reached menopause but those whose menses have stopped and it is not known whether the reason is disease or age; consequently, their 'iddah is three months. There is no question of doubt regarding those whose menopause is certain. The doubt arises in cases of uncertainty, as indicated by the words: إِنْ ارْتَبْتُمْ (if you are in doubt) of the verse, because it is not the Lawgiver's wont when explaining a law to say: "If you are in doubt regarding the law regarding something, the law is that....". This confirms that the doubt mentioned in the verse relates to the fact of menopause, in which case she is to observe an 'iddah of three months. As to the phrase: وَاللاَّئِي لَمْ يَحِضْنَ it refers to women who despite attaining the age of menses do not have them due to some congenital or contingent factor. Many traditions have been narrated from the Imams of the Ahl al-Bayt (A) with this interpretation of this verse.

5. The Hanafis say: Valid seclusion (khalwah) with the wife, even without consummation, requires the observance of 'iddah. But the divorcer is not entitled to return to her during the 'iddah, because here the divorce is irrevocable.

The Hanbalis state: Seclusion is similar to consummation in all respects so far as the necessity of 'iddah and the right of revocation is concerned. As mentioned earlier, seclusion has no effect according to the Imamiyyah and the Shafi'i schools.

The Hanafis observe: If a husband says to his wife: "You are divorced irrevocably" or "divorced firmly," "(with a divorce as firm) as a mountain," and such similar strong words, the divorce will be irrevocable and the divorcer will not be entitled to return during the 'iddah. Similarly, a divorce pronounced by using words which connote a break of relationship (such as, "She is separated," "cut off," "disassociated").

The Triple Divorcee

The schools concur that a husband who divorces his wife thrice cannot remarry her unless she marries another person through a valid nikah, and this second person consummates the marriage, in accordance with verse 230 of Surat al-Baqarah:

فَإِنْ طَلَّقَهَا فَلاَ تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنكِحَ زَوْجاً غَيْرَهُ

So if he divorces her, she shall not be lawful to him afterwards, until she marries another husband .... (2:230)

The Imami and the Maliki schools consider it necessary that the person who marries her (muhallil) be an adult. The Hanafi, the Shafi'i and the Hanbali schools consider his capacity for intercourse as sufficient, even if he is not an adult. The Imami and the Hanbali schools state: If in a marriage contract tahlil (causing the woman to become permissible for her former husband to remarry) is included as a condition (such as when the second husband says, "I am marrying you to make you halal for your divorcer), the condition is void and the contract valid. But the Hanafis add: If the woman fears that the muhallil may not divorce her after the tahlil, it is permissible for her to say, "I marry you on the condition that the power to divorce be in my hands," and for the muhallil to say, '"I accept this condition." Then the contract will be valid and she will be entitled to divorce herself whenever she desires. But if the muhallil says to her: '"I marry you on the condition that your affair (of divorce) be in your own hands," the contract is valid and the condition void.

The Maliki, the Shafi'i and the Hanbali schools state: The contract is void ab initio if tahlil is included as a condition. The Maliki and Hanbali schools further add: Even if tahlil is intended and not expressed the contract is void.

The Malikis and some Imami legists consider it necessary that the second husband (muhallil) have intercourse with her in a lawful manner (such as when she is not menstruating or having nifas, and while both are not fasting a Ramadan fast). But most Imami legists give no credence to this condition and regard mere intercourse, even if unlawful, to be sufficient for tahlil.

Whatever be the case, when a divorcee marries another husband and is separated from him, either due to his death or by divorce, and completes the 'iddah, it becomes permissible for the first husband to contract a new marriage with her. Then, if he again divorces her thrice, she will become haram for him until she marries another. This is how she will become haram for him after every third divorce, and will again become halal by marrying a muhallil, even if she is divorced a hundred times.

But the Imamiyyah state: If a wife is divorced nine times in the talaq al-'iddah form, and is married twice (i.e. following tahlil after every third divorce), she will become permanently haram. The meaning of talaq al-'iddah, according to the Imamiyyah, is a divorce in which the husband after divorcing returns to her during the 'iddah and has intercourse with her, and then divorces her again in another period of purity, then returns to her and has intercourse, then divorces her for a third time and remarries her, after a muhallil does the tahlil, by concluding a fresh contract, and divorces her thrice in the same manner, with a muhallil doing the second tahlil, and remarries her again. Now if he divorces her thrice again, the ninth talaq al-'iddah completed, she will become haram for him permanently. But if the divorce is not a talaq al-'iddah (such as when he divorces her, then returns to her and then divorces her again before having intercourse), she will not become haram perpetually, and will become halal through a muhallil, even if the number of divorces is countless.

Doubt in the Number of Divorces

The schools (except the Maliki) concur that he who has doubt regarding the number of divorces (whether a single divorce has taken place or more) will base his count on the lower number. The Malikis observe: The aspect of divorce shall preponderate and the count will be based on the higher number.

Divorcee's Claim of Tahlil

The Imami, the Shafi'i and the Hanafi schools state: If the husband divorces his wife thrice, and he or she knows nothing about the other for some time and thereafter she claims having married a second husband and separated from him and having completed the 'iddah, her word will be accepted without an oath if this period is sufficient for her undergoing all this, and her first husband is entitled to marry her if he is satisfied regarding her veracity, and it is not necessary for him to inquire further. (al-Jawahir, Ibn 'Abidin, and Maqsad al-nabih)

- 1. The Hanafi and the Maliki schools are explicit regarding the validity of a divorce by an intoxicated person. Two opinions have been narrated from al-Shafi’i and Ahmad, the preponderant among them is that the divorce does take place.

- 2. Al-Ustadh al-Khafif writes in his book Farq al-zawaj (p.57): “The Imamiyah accept the validity of a divorce by a safih, if effected by the permission of his guardian, as expressly mentioned in Sharh Shara’i’ al-Islam.” There is no mention of this statement in the said book. Rather, such a statement is not present in any Imami book, and that which is mentioned in Sharh Shara’i’ al-Islam is that the safih husband is entitled to divorce without the permission of his guardian. See al-Jawahir, vol.4, “Bab al-hijr”.

- 3. Nifas means the vaginal discharge of blood at the time of birth or thereafter, for a maximum period of: ten days according to the Imamiyah, forty days according to the Hanbalis and the Hanafis, and sixty days according to the Shafi’is and Malikis.

- 4. The author of Ta’sis al-nazar (1st ed. p.49) has narrated from Imam Malik that he has observed: If a person resolves to divorce his wife, the divorce takes place by mere resolution, even if he does not pronounce it.

- 5. The use of the expression ‘infallible’ (ma’sum) here belongs to the author of al-Jawahir.

- 6. In Ta’sis al-nazar of Abu Zayd al-Dabusi al-Hanafi it is stated: “According to Abu Hanifah the presumption ab initio is that non-Muslims living under the protection of an Islamic state will be left to follow their beliefs and precepts. But his two disciples, Abu Yusuf and Muhammad, say that they will not be left to themselves.”

Al-Khul'

Khul' is a form of divorce in which the wife releases herself (from the marriage tie) by paying consideration to the husband. Here we have the following issues.

The Condition of the Wife's Destestation

When they both agree to khul’ and she pays him the consideration to divorce her, though they are well settled and their conduct towards each other is agreeable, is their mutual agreement to khul’ valid?

The four schools state: The khul’ is valid and the rules applicable to it and their effects will follow. But it is makruh1 (detestable though lawful).

According to the Imamiyyah, such a khul’ is not valid and the divorcer will not own the consideration. But the divorce (so pronounced) will be valid and revocable if all the conditions for revocability are present. The proof they offer are traditions of the Imams of the Ahl al-Bayt (A) and verse 229 of Surat al-Baqarah:

فَإِنْ خِفْتُمْ أَلاَّ يُقِيمَا حُدُودَ اللَّهِ فَلاَ جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ

...Then if you fear that they cannot maintain the limits set by Allah, there is no blame on the two for what she gives to release herself ..

wherein the verse has made the validity of consideration contingent upon the fear of sinning in case the marital relationship were to continue.

Mutual Agreement to Khul' for a Consideration Greater than Mahr

The schools concur that the consideration should have material value and that its value may be equal to, lesser, or greater than the mahr.

Conditions for Consideration Payable in Khul'

According to the four schools, it is also valid to conclude a khul' agreement with anyone apart from the wife. Therefore, if a stranger asks the husband to divorce his wife for a sum which he undertakes to pay and the husband divorces her, the divorce is valid even if the wife is unaware of it and on coming to know does not consent. The stranger will have to pay the ransom to the divorcer. (Rahmat al-ummah and Farq al-zawaj of al-Ustadh al-Khafif )

The Imamiyyah observe: Such a khul' is invalid and it is not binding upon the stranger to pay anything. But it is valid for a stranger to act as a guarantor of the consideration by the wife's permission and ask the husband, after the wife's permission, to divorce her for such· a consideration guaranteed by him. Thus, if the husband divorces her on this condition, it is binding on the guarantor to pay him that amount and then claim it from the divorcee.

All that which is validly payable as mahr is also valid as consideration in khul’, by consensus of all the five schools. It is also not necessary that the amount of consideration be known in detail beforehand if it can be known eventually (such as when she says: "Grant me khul' for that which is at home", or "in the locker", or "my share of inheritance from my father", or "the fruits of my garden").

If khul' is given in return for that which cannot be owned, such as liquor or swine, the Hanafi, the Maliki and the Hanbali schools observe: If both knew that such ownership is haram, the khul' is valid and the divorcer is not entitled to anything, making it a khul' without consideration. The Shafi'is say: The khul' is valid and she is entitled to the mahr al-mithl (al-Mughni, vol. 7).

Most Imami legists state: The khul' shall be void and the divorce will be considered revocable if it is an instance of revocable divorce; otherwise, it will be irrevocable. In all the cases, the divorcer shall not be entitled to anything.

If the husband grants her khul' for a consideration that he believes to be halal and it later turns out to be haram (such as when she says: "Grant me khul’ for this jar of vinegar," which turns out to be wine) the Imami and the Hanbali schools observe: He shall claim from her a similar quantity of vinegar. The Hanafis state: He shall claim from her the stipulated mahr. According to the Shafi'i school, he shall claim from her the mahr al-mithl.

If she seeks khul' for a consideration she considers to be her property and it turns out to be someone else's, the Hanafi school and most Imami legists observe: If the owner allows it, the khul' will be valid and the husband will take it, but if he disallows, the husband is entitled to a similar consideration either in cash or kind. The Shafi'i school states: The husband is entitled to mahr al-mithl. This is in accordance with the Shafi'i principle that when a consideration becomes invalid, it becomes void and mahr al-mithl becomes payable (Maqsad al-nabih). According to the Malikis, the divorce becomes irrevocable, the consideration becomes void, and the divorcer gets nothing even if the owner permits (al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 4).

If the wife seeks khul’ by undertaking to nurse and maintain his child for a certain period, the khul’ will be valid and she will be bound to nurse and maintain the child, as per consensus. The Hanafi the Maliki and the Hanbali schools further clarify that it is valid for a pregnant wife to seek khul’ from her husband in return for maintaining the child in her womb on the same grounds on which it is valid for her to seek khul' by undertaking the maintenance of a born child. I have not come across in the lmami and Shafi'i sources accessible to me anyone who has dealt with this issue, although the principles of the Shari'ah do not prohibit it, because the cause, which is the child in the womb, is present, and the wife's pledge is a condition by which she binds herself to the effect that in the event of the child being born alive she will be responsible for its nursing and maintenance for a specific period, and Muslims are bound by the conditions they lay down, provided this does not result in a halal becoming haram or vice versa. Hence this condition is valid in itself, for it does not suggest anything legally void; therefore its fulfillment is compulsory because it is part of a binding contract. The uncertainty concerning the child being born alive or dead, and its dying after birth before the stipulated period, is overlooked in a khul’.

The furthest one can go in asserting its impermissibility and invalidity is by likening a pledge to maintain with a discharge from maintenance. Therefore, when a discharge from maintenance is invalid because it is an annulment of something not binding, similarly a pledge to maintain is not valid because it is not presently wajib. But there is a great difference between a pledge and a discharge, because it is necessary that a discharge be from something present and actual, while a pledge need not be so. Apart from this, we have already discussed in the chapter on marriage regarding khul’ in return for foregoing the right to custody of a child by the father or the mother.

A Related Issue

If a husband grants khul’ to his wife in return for her maintaining the child, she is entitled to claim the child's maintenance from its father on her not being able to maintain it, and he will be compelled to pay the maintenance. But he can reclaim this maintenance from the mother if she comes to possess the means. If the child dies during the stipulated period, the divorcer is entitled to claim a compensation for the remaining period in accordance with the words of the verse (2:229) فِيمَا افْتَدَتْ بِه . It is better for a woman to undertake the nursing and maintenance of the child for a certain period so long as it is alive. Then the divorcer will not have the right to a claim against her if the child dies.

Conditions for a Wife Seeking Khul'

There is consensus among the schools that a wife seeking khul’ should be a sane adult. They also concur that the khul’ of a stupid (safih) wife is not valid without the permission of her wali (guardian). The schools differ regarding the validity of khul’ where the guardian has granted her the permission to seek khul’. The Hanafis observe: If the guardian undertakes to pay the consideration from his own personal assets, the khul’ is valid; otherwise, the consideration is void, while the divorce takes place according to the more authentic of two traditions (Abu Zuhrah).

The Imami and the Maliki schools state: With the guardian's permission to her to pay the consideration, the khul’ is valid by payment from her wealth not his. (al-Jawahir and al-Fiqh 'ala’ al-madhahib al-'arba’ah)

The Shafi'i and the Hanbali schools consider the khul’ of a stupid wife as invalid irrespective of the guardian's permission. The Shafi'i school allows one exception to the above opinion, wherein the guardian fears the husband's squandering her wealth and grants her permission to seek a khul’ from him for the protection of her property. The Shafi'is then add: Such a khul’ is invalid and the divorce is revocable. The Hanbalis say: Neither the khul’ nor the divorce will take place except when the husband intends a divorce through khul’ or if the khul’ takes place in the words of a divorce.

If a woman seeks khul’ during her last illness, it is considered valid by all schools. But they differ where she pays as consideration more than a third of her wealth or more than the husband's share to be inherited from her on assumption of her death during the 'iddah. As said above, they inherit from each other in this situation.

The Imami and the Shafi'i schools state: If she seeks khul' for mahr al-mithl, it is valid and the consideration is payable from her undivided legacy. But if it exceeds mahr al-mithl, the excess will be deducted from one-third of her legacy.

The Hanafis observe: Such a khul’ is valid and the divorcer is entitled to the consideration if it does not exceed either one-third of her wealth or his share of inheritance from her were she to die during the 'iddah. This means that he will take the least of the three amounts: the consideration of the khul’, his share of inheritance from her, or a third of her legacy. (Therefore, if the consideration for the khul’ is 5, his share of inheritance 4, and a third of her legacy 3, he shall be entitled to 3).

According to the Hanbali school, if she seeks khul’ in return for a consideration equaling his share of inheritance from her or something lesser, the khul’ and the consideration are valid. But if she seeks khul' for a higher consideration, only the excess will be void (al-Mughni, vol. 7).

The Imamiyyah moreover require the wife seeking khul' to fulfil all the requirements in a divorcee (such as her purity from menses, non-occurrence of intercourse in the period of purity if her marriage has been consummated, her being neither menopausal nor pregnant, her not being a minor below the age of nine). Similarly, they require the presence of two just witnesses for the khul’ to be valid. But the other schools validate a khul’ irrespective of the state of the wife seeking it, exactly like a divorce.

Conditions for a Husband Granting Khul’

Excepting the Hanbali, all the other schools concur that a husband granting khul' requires to be a sane adult. The Hanbalis state: Khul’ granted by a discerning minor (mumayyiz) is valid, as is a divorce given by him. As mentioned at the beginning of this chapter on divorce, the Hanafis permit a divorce pronounced in jest, under duress, or in a state of intoxication, and the Shafi'i and the Maliki schools concur with them concerning divorce pronounced in jest. A khul' granted in a state of rage is valid if the rage does not eliminate the element of intention.

There is consensus among the schools concerning the validity of a khul’ granted by a stupid (safih) husband. But the consideration will be given to his guardian, and its being given to him is not valid.

Regarding a khul’ granted by a sick husband on his death bed, it is undoubtedly valid, because when his divorcing without receiving any consideration is valid, a divorce along with consideration would be more so.

The Pronouncement of Khul’

The four schools permit the use of explicit words – such as derivatives of al-khul’ and al-faskh (dissolution) – in the pronouncement, as well as implicit words (such as "bara'tuki" [I relinquish you] and "abantuki" [I separate myself from you]). The Hanafis have said: The use of the words al-bay' (to sell) and al-shira' (to purchase) is valid (for instance, when the husband says to the wife: "I sell you to yourself for so much", and the wife replies: "I purchase", or when he says: "Buy your divorce for so much", and she replies: "I accept"). Similarly the Shafi'i school accepts the validity of a khul’ pronounced with the word al-bay'.

The Hanafis allow the conditional khul’, the khul’ by exercise of an option, and the khul’ in which the pronouncement and the payment of consideration is separated by an extended time interval (such as, where a husband is away from his wife and it reaches him that she has said, "I seek a khul’ for so much," and he accepts it). Similarly the Malikis also do not consider the time factor an impediment.

Khul’ is valid according to the Hanbali school even without an intention if the word used is explicit (such as al-khul’, al-faskh and al-mufadat); but it requires that the pronouncement and payment take place simultaneously and unconditionally.

The Imamiyyah have said: Khul' does not take place by using implicit words or even explicit words other than al-khul' and al-talaq. If desired, they can be used together or singly (thus, she may say: "I pay you this much for divorcing me", and he will reply: "I grant you khul' for it, and therefore you are divorced". This form of pronouncement is the safest and most suitable in the view of all Imami legists. It also suffices if he says: "You are divorced in return for it," or "I grant you khul' in return for it"). The Imamiyyah require that khul' should be unconditional, exactly as in divorce, and consider necessary the absence of any time gap between its pronouncement and payment of consideration.

- 1. Al-Ustadh al-Khafif, Farq al-zawaj (1958), p.159.

Al-'Iddah

There is consensus among Muslims about the general necessity of 'iddah. Its basis is the Qur’an and the Sunnah. As to the Qur’an, we have the following verse:

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلاَثَةَ قُرُوءٍ

Women who are divorced shall wait, keeping themselves apart, three (monthly) courses.. (2:228)

As to the Sunnah, there is the Prophet's tradition commanding Fatimah bint Qays:

اعتدّي في بيت ابن أُم مكتوم

Observe 'iddah in the house of lbn Umm Maktum.

They differ, however, regarding: the 'iddah of a wife separated from her husband due to divorce or annulment of marriage; the 'iddah of a widow; the 'iddah of a woman copulated by mistake; the relief of an adulteress (from menses); and the 'iddah of a wife whose husband has disappeared.

Divorcee's ‘Iddah

The five schools concur that a woman divorced before consummation and before the occurrence of valid seclusion has no 'iddah to observe. The Hanafi, the Maliki and the Hanbali schools state: If the husband secludes with her without consummating the marriage and then divorces her, she will have to observe 'iddah, exactly as if consummation had occurred.

The Imamiyyah and the Shafi'is observe: Seclusion has no effect. As mentioned earlier in relation with the distinction between revocable and irrevocable divorce, the Imamiyyah do not require a menopausal wife with whom coitus has taken place to observe 'iddah. The reasons given by the Imamiyyah for this opinion were also mentioned earlier.

The 'iddah for every kind of separation between husband and wife, except the one by death is the 'iddah of divorce irrespective of its being due to: khul’, li'an, annulment due to a defect, dissolution arising from rida’ (breast-feeding), or as a result of difference of religion.1

Moreover, the schools concur that the 'iddah is wajib on a wife divorced after consummation and that the 'iddah will be one of the following kinds:

I. The five schools concur that a pregnant divorcee will observe 'iddah till childbirth in accordance with the verse:

وَأُوْلاَتُ الأَحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ

And as for pregnant women, their term shall end with delivery. (65:4)

If she is pregnant with more than one child, her 'iddah will not terminate until she gives birth to the last of them, as per consensus. The schools differ concerning a miscarriage if the foetus is not completely formed: the Hanafi, the Shafi'i and the Hanbali schools observe: Her 'iddah will not terminate by its detachment. The Imami and the Maliki schools state: It will, even if it is a lump of flesh, so far as it is a foetus.

The maximum period of gestation is two years according to the Hanafis, four years according to the Shafi'is and the Hanbalis, and five years according to the Malikis, as mentioned by al-Fiqh 'ala al-madhahib al-'arba'ah. In al-Mughni, it is narrated from Malik to be four years. Details of this were mentioned in the chapter on marriage.

A pregnant woman cannot menstruate according to the Hanafi and the Hanbali schools. The Imami, the Shafi'i and the Maliki schools allow the possibility of its occurrence.

She will observe an 'iddah of three lunar months if she is: an adult divorcee who has not yet menstruated or a divorcee who has reached the age of menopause.2 This age is seventy years according to the Malikis, fifty years according to the Hanbalis, fifty-five years according to the Hanafis, sixty-two years according to the Shafi'is, and according to the Imamiyyah fifty for ordinary women and sixty for those of Qurayshi descent.

Regarding a wife copulated with before her completing nine years, the Hanafis observe: 'Iddah is wajib on her even if she is a child. The Maliki and the Shafi’i schools state: 'Iddah is not wajib on a minor incapable of intercourse, but wajib on one who is capable even if she is under nine. The Imami and the Hanbali schools do not consider 'iddah wajib on a minor under nine years even if she has the capacity for intercourse. (al-Fiqh 'ala al-madhahib al-'arba’ah, vol. 4, discussion on the 'iddah of a menopausal divorcee).

A divorcee over nine who has had monthlies and is neither pregnant nor menopausal has an 'iddah of three quru’, as per consensus. The Imami, the Maliki and the Shafi'i schools have interpreted the word qara' to mean purity from menses. Thus, if she is divorced at the last moment of her present period of purity, it will be counted as a part of 'iddah, which will be completed after two more of such terms of purity. The Hanafis and the Hanbalis interpret the term to mean menstruation. Thus, it is necessary that there be three monthlies after the divorce, and the monthly during which she is divorced is disregarded. (Majma’ al-anhur)

If a divorcee undergoing this kind of 'iddah claims having completed the period, her word will be accepted if the period is sufficient for the completion of 'iddah. According to the Imamiyyah, the minimum period required for accepting such a claim is twenty-six days and two 'moments', by supposing that she is divorced at the last moment of her first purity, followed by three days of menses (which is the minimum period) followed by a ten-day purity period (which is the minimum period of purity according to the Imamiyyah) followed again by three days of menses, then a second ten-day purity followed by menses. The period of 'iddah comes to an end with the sole recommencement of menses, and the first moment of the third monthly is to make certain the completion of the third period of purity.

Nifas is similar to menses, in the opinion of the Imamiyyah. Accordingly, it is possible for an 'iddah to be completed in twenty-three days, if the wife is divorced immediately after childbirth but before the commencement of nifas (in which case the 'iddah is 23 days, considering a moment of nifas followed by ten days of the first purity, followed by three days of menses - which is the minimum period for it - followed by a second ten-day purity).

The minimum period for accepting such a claim by a divorcee is thirty-nine days according to the Hanafi school, by supposing his divorcing her at the end of her purity, and supposing again the minimum three-day period of menstruation, followed by a 15-day purity (which is the minimum in the opinion of the Hanafis). Thus, three menses, covering nine days, separated by two periods of purity, making up thirty days, make up a total of thirty-nine.

Maximum Period of 'Iddah

As mentioned earlier, a mature divorcee who has not yet menstruated will observe a three-month 'iddah, as per consensus. But if she menstruates and then ceases to do so - as a result of her nursing a child or due to some disease – the Hanbali and the Maliki schools observe: She will observe 'iddah for one complete year. In the later of his two opinions, al-Shafi'i has said: Her ‘iddah will continue until she menstruates or reaches menopause; after this, she will observe an 'iddah of three months. (al-Mughni, vol. 7. "bab al-'idad")

The Hanafi school is of the opinion that if she menstruates once and then ceases perpetually due to disease or breast-feeding a child, her 'iddah will not terminate before menopause. Accordingly, the period of 'iddah can extend for more than forty years in the opinion of the Hanafi and the Shafi’i schools. (al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 4. the discussion on 'iddat al-mutallaqh idha kanat min dhawat al-hayd).

The Imamiyyah observe: If menstruation ceases due to some accidental cause the divorcee will observe an 'iddah of three months, similar to a divorcee who has never menstruated. If menses resume after the divorce, she will observe 'iddah for the shorter of the two terms. i.e. three months or three quru'. This means that if three quru' are completed before three months, the 'iddah will be over on their completion, and if three months are completed before three quru', then again the 'iddah will terminate. If she menstruates even a moment before the completion of three months, she will have to wait for nine months, and it will not benefit her if she is later free from menses for a period of three months. After the completion of nine months, if she gives birth before the completion of a year, her 'iddah will terminate, and similarly if she menstruates and completes the periods of purity. But if she neither gives birth nor completes the periods of purity before the end of the year, she will observe an additional 'iddah of three months after completing the nine months. This adds up to a year, which is the maximum period of ‘iddah according to the Imamiyyah.3

The Widow's 'Iddah:

There is consensus among the schools that the 'iddah of a widow who is not pregnant is four months and ten days, irrespective of her being a major or a minor, her being menopausal or otherwise, and regardless of the consummation of her marriage, in accordance with the verse:

وَالَّذِينَ يُتَوَفَّوْنَ مِنْكُمْ وَيَذَرُونَ أَزْوَاجاً يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْراً

And those among you who die and leave behind wives, (these wives) should keep themselves waiting for four months and ten days. (2:234)

This is the case when she is sure of not being pregnant. But if she has a doubt she is bound to wait until delivery or attainment of certainty that she is not pregnant. This is the opinion of many legists belonging to different schools.

The four Sunni schools state: The 'iddah of a pregnant widow will terminate on delivery, even if it occurs a moment after the husband's death. This permits her to remarrying immediately after giving birth, even if the husband has not yet been buried, as per the verse:

وَأُوْلاَتُ الأَحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ

And as for pregnant women, their term shall end with delivery. (65:4)

The Imamiyyah state: Her 'iddah will be whichsoever is longer of the two terms, i.e. delivery or four months and ten days. Thus if four months and ten days pass without her giving birth, her 'iddah will continue until childbirth; and if she delivers before the completion of four months and ten days, her 'iddah will be four months and ten days. The Imamiyyah argue that it is necessary to combine the verse 2:234:

يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ و عشراً

with the verse 65:4:

أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ

The former verse has fixed the 'iddah at four months and ten days, and it includes both a pregnant and a non-pregnant wife. The latter verse has stipulated the 'iddah of a pregnant wife to last until childbirth, and it includes both a divorcee and a widow. Thus an incompatibility emerges between the apparent import of the two verses regarding a pregnant widow who delivers before the completion of four months and ten days. In accordance with the latter verse her 'iddah terminates on delivery, and in accordance with the former the 'iddah will not terminate until four months and ten days have been completed. An incompatibility also appears if she does not deliver after the completion of four months and ten days; according to the former verse her 'iddah terminates when four months and ten days are over, and in accordance with the latter the 'iddah will not terminate because she has not yet delivered. The word of the Qur'an is unequivocal, and it is necessary that parts of it harmonize with one another. Now, if we join the two verses like this:

وَالَّذِينَ يُتَوَفَّوْنَ مِنْكُمْ وَيَذَرُونَ أَزْوَاجاً يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْراً ،وَأُوْلاَتُ الأَحْمَالِ أَجَلُهُنَّ أَنْ يَضَعْنَ حَمْلَهُنَّ

the meaning will be that the 'iddah of a widow who is not pregnant, or is pregnant but delivers within four months and ten days, is four months and ten days; and that of a widow who delivers after four months and ten days is until the time of her delivery.

If someone questions how the Imamiyyah specify the 'iddah of a pregnant widow to be the longer of the two terms (delivery or four months and ten days) while the verse وَأُوْلاَتُ الأَحْمَالِ is explicit that the 'iddah of a pregnant woman terminates on her giving birth, the Imamiyyah say: How have the four schools said that the 'iddah of a pregnant widow is two years, if the gestation period so extends, in spite of the verse:

وَالَّذِينَ يُتَوَفَّوْنَ مِنْكُمْ وَيَذَرُونَ أَزْوَاجاً يَتَرَبَّصْنَ بِأَنفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْراً

which is explicit that it is four months and ten days? If the questioner replies: The four schools have done so acting in accordance with the verse أُولات الأحمال, the Imamiyyah reply: We have acted in accordance with the verse: والذين يتوفّون .
Therefore it is not possible to apply both the verses except by stipulating the longer of the two terms as 'iddah.

The schools excepting the Hanafi, concur that al-hidad is wajib on the widow, irrespective of her being major or minor, Muslim or non-Muslim. The Hanafis do not consider it wajib for a non-Muslim and a minor widow because they are not mukallaf (responsible for religious duties).

The meaning of al-hidad is that the woman mourning her husband's death refrain from every adornment that makes her attractive. It determination depends on prevailing customs and usage.

The Imamiyyah observe: The 'iddah of divorce will commence on the recital of the divorce, irrespective of the husband's presence or absence. The 'iddah of a widow commences on the news of his death reaching her, if he is away. But if the husband is present and she comes to know of his death after some time, her 'iddah will commence from the time of his death, as per the predominant opinion among Imamiyyah legists.

The schools concur that if the husband of a revocable divorcee dies while she is undergoing 'iddah, she is bound to start anew with a widow's 'iddah from the time of his death, irrespective of the divorce taking place during the husband's mortal illness or health, because the marital bond between her and the husband has not yet broken. But if the divorce is irrevocable, it will depend. If he divorces her while healthy, she will complete the 'iddah of divorce and will not have to observe any 'iddah due to the husband's death, as per consensus, even if the divorce was without her consent. Similar is the case if he divorces her during his mortal illness on her demand. But what if he divorces her during his mortal illness without her demanding it, and then dies before the termination of her 'iddah? Shall she start the widow's ‘iddah, like a revocable divorcee, or shall she continue to observe the 'iddah of divorce?

The Imami, the Maliki and Shafi'i schools state: She shall continue to observe the 'iddah of divorce without changing over to the 'iddah of widowhood.
According to the Hanafi and the Hanbali schools, she shall change over to the 'iddah of widowhood.

In short, a revocable divorcee will start observing the ‘iddah of widowhood if the divorcer dies before the termination of her 'iddah of divorce, and an irrevocable divorcee will continue to observe the 'iddah of divorce, as per the concurrence of all the schools except the Hanafi and the Hanbali, who exclude an irrevocable divorcee if the divorce takes place during the divorcer's mortal illness without her consent.

'Iddah for Intercourse by Mistake

According to the Imamiyyah, the 'iddah of 'intercourse by mistake' is similar to the 'iddah of a divorcee. Therefore, if the woman is pregnant, she will observe 'iddah until childbirth; if she has menstruated, her 'iddah will be three quru’, otherwise three months. An 'intercourse by mistake' is, according to the Imamiyyah, one in which the man involved is not liable to penal consequences, irrespective of the woman being one with whom marriage is unlawful (such a wife's sister or a married woman) or lawful (such as any unmarried woman outside the prohibited degrees of marriage). The view held by the Hanbalis is nearly similar to this view, where they observe that every form of sex relations necessitate the observance of 'iddah. They do not differ from the Imamiyyah except in some details, as indicated below on the discussion of the 'iddah of a fornicatress.

The Hanafis state: ‘Iddah is wajib both as a result of intercourse by mistake or an invalid marriage. 'lddah is not wajib if the marriage is void. An example of the 'mistake' is a man's having relations with a sleeping woman thinking her to be his wife. An invalid (fasid) marriage is one with a woman with whom marriage is lawful but in which some essential conditions remain unfulfilled (such as where a contract has been recited without the presence of witnesses). A void (batil) marriage is a contract with a woman belonging to the prohibited degrees of relatives (e.g. sister or aunt). The 'iddah for intercourse by mistake according to them is three menstruations if she menstruates, or three months if she is not pregnant. If she is pregnant, the 'iddah will continue until childbirth.

The Malikis state: She will release herself after three quru’; if she does not menstruate, by three months; if pregnant, on childbirth.

Whatever be the case, if a man who has had intercourse by mistake dies, the woman will not observe the 'iddah of widowhood, because her 'iddah is due to intercourse, not marriage.

The 'Iddah of a Fornicatress

The Hanafi and the Shafi'i schools, as well as the majority of Imamiyyah legists, remark: 'lddah is not required for fornication, because the relations have no sanctity. Thus, marriage and intercourse with a fornicatress is lawful, even if she is pregnant. But the Hanafis permit marriage with a woman pregnant through fornication without allowing intercourse with her before her delivery.

The Malikis state: Fornication is similar to intercourse by mistake. Thus she will release herself in a period equal to the period of 'iddah except when she is to undergo the punishment, in which case she will release herself after a single menstruation.

The Hanbalis observe: ‘Iddah is as wajib on a fornicatress as on a divorcee (al-Mughni, vol.6 and Majma' al-anhur).

The 'Iddah of a Kitabiyyah

The schools concur that a kitabiyyah (a non-Muslim female adherent of a religion having a scripture) wife of a Muslim will be governed by the laws applicable to a Muslim wife concerning the necessity of 'iddah, and al-hidad in an 'iddah of widowhood. But if she is a wife of a non-Muslim kitabi, the Imami,4 the Shafi'i, the Maliki and the Hanbali schools consider 'iddah wajib upon her. But the Shafi'i, the Maliki and the Hanbali schools do not consider al-hidad wajib for her while observing the 'iddah of widowhood.

The Hanafis state: A non-Muslim woman married to a non-Muslim does not have an 'iddah. (al-Shi'rani, Mizan, bab al-'idad wa al-'istibra')

Wife of a Missing Husband

A missing person can be in one of these two situations: First, where his absence is continuous but his whereabouts are known and news about him is received. Here, according to consensus, his wife is not entitled to remarry. The second situation arises where there is no more any news of him and his whereabouts. The imams of the various schools differ regarding the law applicable to his wife.

Abu Hanifah, al-Shafi'i according to his later and preferred opinion, and Ahmad according to one of his two traditions, observe: Marriage is impermissible for the wife of a missing husband as long as he may be considered alive on the basis of a usual life-span. Abu Hanifah has fixed this period at 120 years; al-Shafi'i and Ahmad at 90 years.

Malik states: She shall wait for 4 years and then observe an 'iddah of four months and ten days, after which she may remarry.

Abu Hanifah and al-Shafi'i in the more reliable of his two opinions state: If the first husband returns after she marries another, the second marriage shall become void and she will become the first's wife.

Malik observes: If the first husband returns before the consummation of the second marriage, she will belong to the first husband, but if he returns after consummation she will remain the second's wife. It will be wajib however, for the second husband to pay mahr to the first.

According to Ahmad, if the second husband has not consummated the marriage she belongs to the first; but if he has, the choice lies with the first husband: he may either reclaim her from the second husband and give him the mahr or allow her to remain with him by taking the mahr. (al-Mughni, vol. 7 and Rahmat al-ummah) 5

The Imamiyyah state: The case of a missing person who is not known to be living or dead will be studied. If he has any assets by which the wife can be maintained, or has a guardian willing to maintain her, or someone volunteering to do it, it is wajib for her to patiently wait for him; it is not permissible for her to marry in any circumstance until she learns of his death or his divorcing her. But if the missing husband has neither any property nor someone willing to maintain her, if the wife bears it patiently, well and good; but if she wants to remarry, she will raise the issue before the judge. The judge will order a four-year waiting period for her from the time the issue was brought to him, and then start a search for the husband during that time.

If nothing is known, and the missing husband has a guardian or an attorney in charge of his affairs, the judge will order him to divorce her. But if the husband has neither a guardian nor an attorney, or has, but has prohibited him from divorcing, and it is not possible to compel him, the judge will himself pronounce the divorce by using the authority granted to him by the Shari'ah. After this divorce the wife will observe an 'iddah of four months and ten days after which she may remarry.

The method of search is that the judge will question about his presence and seek information from those coming from the place where there is a possibility of his being present. The best way of it is to depute a reliable person from among the people of the place where the search is being conducted to supervise the search on his behalf and report to him the result. A search of an ordinary extent is sufficient, and it is neither necessary that his whereabouts be inquired in every place which can possibly be reached, nor that the inquiry be conducted continually. When the search is completed in a period of less than four years in a manner that it becomes certain that further inquiry is fruitless, the search is no longer wajib. Yet it is necessary that the wife wait for four years; this is in compliance with an explicit tradition and the demand of precaution in marital ties, as well as the possibility of the husband returning during these four years.

After the completion of this period the divorce will take place and she will observe an 'iddah of four months and ten days without hidad. She is entitled to maintenance during this period, and the spouses inherit from each other as long as she is in 'iddah. If the husband comes back during the 'iddah, he may return to her if he wants or let her remain as she is. But if he comes back after the completion of the 'iddah but before her marrying another, the preferable opinion is that he has no right over her; and more so if he finds her married.6

The Rules Governing 'Iddah

We said in the chapter on maintenance that there is consensus regarding a revocable divorcee's right to maintenance during her 'iddah. We also said that there is a difference of opinion regarding an irrevocable divorcee during her 'iddah. Here we shall discuss the following issues:

Inheritance between a Divorcer and a Divorcee

There is consensus that when a husband revocably divorces his wife, their right of inheriting from each other does not disappear as long as she is in 'iddah, irrespective of the divorce being given in mortal illness or in condition of health. The right to mutual inheritance is annulled on the completion of the 'iddah. There is a consensus again regarding the absence of mutual inheritance if the husband divorces his wife irrevocably in health.

Divorce by a Sick Person

The schools differ when a sick person divorces his wife irrevocably and then dies in the same sickness.

The Hanfis entitle her to inherit as long as she is in 'iddah, provided the husband is considered attempting to bar her from inheriting from him and the divorce takes place without her consent. In the absence of any of these two conditions she will not be entitled to inherit.

The Hanbalis state: She will inherit from him as long as she does not remarry, even if her 'iddah terminates.

The Malikis state: She inherits from him even after her remarriage.

Three opinions of al-Shafi'i have been reported, and one of them is that she will not inherit even if he dies while she is observing 'iddah.

It is notable that apart from the Imamiyyah the other schools speak of a divorce by a sick person only when it is irrevocable. But the Imamiyyah have observed: If he divorces her while sick, she will inherit from him irrespective of the divorce being revocable or irrevocable, on the realization of the following four conditions:

1. That the husband's death occurs before the completion of one year from the date of divorce. Thus, if he dies one year after the divorce, even if by an hour, she will not inherit from him.

2. That she does not remarry before his death. If she does and he dies within a year (of the divorce), she will not inherit.

3. That he does not recover from the illness in which he divorced her. Thus, if he recovers and then dies within a year, she will not be entitled to inherit.

4. That the divorce does not take place on her demand.

'Iddah and Location

The schools concur that a revocable divorcee will observe 'iddah at the husband's home. Therefore, it is not permissible for him to expel her. Similarly, it is not permissible for her to leave it. The schools differ regarding an irrevocable divorcee. The four schools are of the opinion that she will observe 'iddah like a revocable divorcee, without there being any difference, in accordance with the verse:

ولاَ تُخْرِجُوهُنَّ مِنْ بُيُوتِهِنَّ وَلاَ يَخْرُجْنَ إِلاَّ أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ

Do not expel them from their homes, and neither should they themselves go forth, unless they commit an obvious indecency. (65:1)

The Imamiyyah state: An irrevocable divorcee is free to decide about her own affairs and may observe 'iddah wherever she wants, because the marital bond between her and the husband has snapped; neither do they inherit from each other, nor is she entitled to maintenance, unless pregnant. Accordingly, the husband is not entitled to confine her. As to the above verse, they say that it relates specifically to revocable divorcees, and there are many traditions from the Imams of the Ahl al-Bayt (A) to this effect.

Marriage with a Divorcee's Sister in 'Iddah

If a person marries a woman, it is haram for him to marry her sister. However, if she dies or is divorced and her period of 'iddah terminates, it becomes halal for him to marry her sister. But is it halal for him to marry her sister before her 'iddah comes to an end? The schools concur that it is haram to marry the sister of a divorcee in 'iddah if the divorce is revocable, and differ where the divorce is irrevocable. The Hanafi and Hanbali schools observe: Neither marriage with her sister is permissible nor the marrying of a fifth wife (if he had four, one of whom he has divorced) until the completion of her 'iddah, irrespective of the divorce being revocable or irrevocable.

The Imami, the Maliki and the Shafi'i schools state: It is permissible to marry the sister of a divorcee and a fifth wife before the completion of 'iddah if the divorce is irrevocable.

Can a Divorcee in 'Iddah be Redivorced?

The four schools state: In revocable divorce, he is entitled to divorce her again while she is observing 'iddah, without returning to her, but not if the divorce is irrevocable (al-Mughni, vol.7, chapters on khul' and raj’ah; al-Fiqh 'als al-madhahib al-'arba'ah, the discussion on conditions of divorce).

The Imamiyyah observe: Divorce of a divorcee, revocable or irrevocable, does not take place unless he returns to her, because it is meaningless to divorce a divorcee.

- 1. The Imamiyah state: When the husband, a born Muslim, apostatizes, his wife will observe the ‘iddah of widowhood, and if he apostatizes by returning to his former faith, she will observe a divorcee’s ‘iddah.

- 2. As mentioned earlier, the Imamiyah do not consider ‘iddah wajib for a menopausal woman. But they say: If he divorces her, and she menstruates once before reaching menopause, she will complete her ‘iddah after two more months. The four Sunni schools observe: She will start observing ‘iddah anew, for three months, and her menstruation will not be included in the ‘iddah.

- 3. The authors of al-Jawahir and al-Masalik have mentioned the prevalent opinion (mashhur) in this regard, acting in accordance with the tradition narrated by Sawdah ibn Kulayb. Both have discussed this issue at length and narrated other views which are not mashhur and which most Imamiyyah legists have deliberately ignored.

- 4. The following observation has been made in al-Jawahir, (vol.5, bab al-‘idad). The ‘iddah of a non-Muslim woman is exactly like that of a free Muslim woman in regard to both divorce and death. I have not come across any difference of opinion because of the generality of the proofs and an explicit tradition from al-Sadiq (A) from al-Sarraj, who asked him (A): “What is the ‘iddah of a Christian woman whose husband, a Christian, has died.” He replied: “Her ‘iddah is four months and ten days.”

- 5. This is when she does not raise the issue before a judge. But if she suffers as a result of his absence and files a complaint in court demanding separation, both Ahmad and Malik allow her to be divorced in such a situation. Details follow under the section on divorce by a judge.

- 6. See al-Jawahir, appendices to al-‘Urwah of al-Sayyid Kazim, al-Wasilah of al-Sayyid Abu al-Hasan, and other books on Imamiyyah fiqh. But the greater part of our discussion is based on al-Wasilah, because it is both comprehensive and lucid.

Return To The Divorcee (Al-Raj’ah)

Al-raj’ah in the terminology of legists is restoration of the divorcee and her marital status. It is valid by consensus and does not require a guardian, or mahr, or the divorcee's consent, or any action on her part, in accordance with the verses:

وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ

Their husbands are better entitled to restore them.. (2:228)

إذا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ

So when they have reached their prescribed term retain them honourably or separate from them honourably... (65:2)

The schools concur that it is necessary that the divorcee being restored be in the 'iddah of a revocable divorce. Thus there is no raj’ah for: an irrevocable divorcee of an unconsummated marriage, because there is no 'iddah for her; for a triple divorcee, because she requires a muhallil; and for the divorcee of khul' against a consideration, because the marital bond between the two has been dissolved.

There is consensus among the schools that the return is effected by oral word, and they consider it necessary that the pronouncement be complete and unconditional. Thus if the raj'ah is made contingent upon something (such as when he says: "I return to you if you so desire"), it will not be valid.1 Accordingly, if neither an act nor a satisfactory declaration proving raj’ah takes place on his part after the unsatisfactory pronouncement and the period of 'iddah expires eventually, the divorcee will become a stranger for him.

The schools differ regarding the possibility of raj’ah being effected by an act, such as sexual intercourse or its preliminaries, without any pronouncement preceding it. The Shafi'is observe: It is necessary that raj’ah be either by spoken word or in writing. Thus it is not valid by intercourse even if he intends raj’ah through it, and such intercourse with her during 'iddah is haram, making him liable to mahr al-mithl because it is an 'intercourse by mistake.'

The Malikis state: Raj’ah is valid by an act if it is with the intention of raj’ah. Thus, if he has intercourse without this intention, the divorcee will not return to him. But such intercourse does not make him liable to any penal consequences nor mahr, and if she becomes pregnant consequently, the child will be attributed to him; and if she does not become pregnant she will release herself after a single menstrual course.

The Hanbalis are of the opinion that raj’ah is valid by an act only if he has intercourse. Thus, where he has intercourse, she will be considered restored even if he does not intend it. Any act apart from intercourse, such as caressing and kissing, etc., does not result in raj’ah

According to the Hanafis, raj’ah is effected by intercourse, as well as caressing, kissing, etc., by the divorcer and the divorcee, provided it is with a sexual intent. Also. raj’ah by an act of one in sleep, or by an act performed absent-mindedly or under coercion, or in a state of insanity (as when the husband divorces his wife, turns insane, and has intercourse with her before the termination of her ‘iddah) is valid. (Majma’ al-anhur, bab al-raj’ah)

The Imamiyyah state: Raj'ah is effected through intercourse, kissing and caressing, with and without a sexual intent, as well as by any other act which is not permissible except between a married couple. It is not necessary that raj’ah be preceded by an oral pronouncement, because the divorcee is a wife as long as she is observing ‘iddah, and all it requires is an intention of raj’ah. The author of al-Jawahir goes a step further, observing: “Perhaps the unconditional nature of the canonical texts (al-nass) and the fatwas requires that raj’ah take place by an act even if he does not intend to restore her by it." Sayyid Abu al-Hasan writes m al-Wasilah: "It is highly probable that it (the act) be considered raj’ah even if the intent is absent."

The Imamiyyah attach no significance to an act of a person in sleep or something done absent-mindedly, or under a false impression (such as his having intercourse under the impression that she is not his divorcee).

Raj'ah and Witnesses

The Imami, the Hanafi and the Maliki schools state: Raj’ah does not require witnessing, though it is desirable (mustahabb). A tradition narrated from Ahmad conveys the same, and so does the more reliable opinion of al-Shafi'i. Accordingly, it is possible to claim a consensus of all the schools regarding the non-necessity of witnesses in raj’ah.

Raj'ah of an Irrevocable Divorcee

The restoration of an irrevocable divorcee during 'iddah is possible only in the case of a divorcee who has been granted khul’ in return for a consideration, provided that the marriage has been consummated and the divorce is not one which completes three divorces. The four schools concur that the law applicable here is the one which applies to a stranger and requires a new marriage contract, along with mahr, her consent and the permission of the guardian (if necessary), with the exception that she is not required to complete the 'iddah. (Bidayat al-mujtahid, vol. 2)

The Imamiyyah observe: A divorcee of khul' is entitled to reclaim what she has paid as a consideration as long as she is in 'iddah, provided the husband is aware of her reclaiming the consideration and has not married her sister or a fourth wife. Thus, when he is aware of it and there is no impediment, he is entitled to recant the divorce. By his recanting she becomes his lawful wife and there is no need for a new contract or mahr. If he becomes aware of her reclaiming the consideration but does not recant the divorce, the divorce which was irrevocable becomes revocable and all the rules applicable to it and its consequences will follow, and the divorcer will be compelled to restore what the divorcee had given him for divorcing her.

Disagreement During the 'Iddah

If there is a disagreement between the divorcer and a revocable divorcee, such as when he claims: "I have returned to her," and she denies it, the divorcer will be considered to have made the return if it takes place during the 'iddah, and similarly if he denies having divorced her at all, because his saying this guarantees his connection with the wife.

The burden of proof rests on the divorcer to prove raj’ah if the two differ regarding it after the expiry of the 'iddah. On his failing to do so, she will take an oath that he has not returned to her, if he claims having returned to her by an act (such as sexual intercourse, etc.). If the divorcer claims raj’ah by oral word and not by an act, she will take an oath that she knows nothing about it. According to Abu Hanifah, her word will be accepted without an oath. (Ibn 'Abidin)

If they differ regarding the expiry of 'iddah, such as when she claims its expiry by menstruation in a period sufficient for creating the possibility of her claim being veracious, her word will be accepted, as per consensus, though the Imami, the Shafi'i and the Hanbali schools also require her to take an oath. The author of al-Mughni (vol.7, bab al-raj’ah) has narrated from al-Shafi'i and al-Khiraqi: "In all cases where we said that her word will be accepted, she will have to take an oath if the husband denies her claim."

If she claims the expiry of 'iddah by the completion of three months, the author of al-Mughni, a Hanbali, and the author of al-Shara’i, an Imami, observe: The husband's word will be accepted. Both argue that the difference is in reality regarding the time of divorce and not the 'iddah, and divorce being his act, his word will be accepted.

But the author of al-Jawahir observes that the acceptance of the divorcer's word is in accordance with the principle of presumption regarding the continuation of 'iddah (unless the opposite is proved) and the presumption that any new situation is a latter development; but it contradicts the literal import of the canonical texts and the prevalent opinion among the legists, which place the affair of 'iddah in the woman's hand. He further adds: The sole possibility of her veracity in a matter concerning 'iddah is sufficient for its acceptance. This preference in accepting her word is in accordance with the tradition:

فَوّض الله إلى النساء ثلاثة أشياء: الحيض والطهر والحمل

God has placed three things in the hands of women: menstruation, purity, and pregnancy.

In another tradition, menstruation and 'iddah are mentioned instead of the above three.

- 1. The author of al-Jawahir and al-Masalik state that the mashhur opinion among the Imamiyyah legists is that a conditional raj’ah is not valid. The author of al-Masalik (vol.2, bab al-talaq) says: The more mashhur opinion is that raj’ah will not take place, and even those who consider contingent divorce valid hold this opinion by placing raj’ah alongside nikah.

The Acceptance of a Claim without Proof

We have referred above to the acceptance of the woman's word in matters concerning 'iddah. Here it is appropriate to explain an important rule of the Shari'ah closely related to our present discussion that has often been referred to in the works of the legists, especially those of the Imami and the Hanafi schools. However, these legists have discussed it as a side issue, in the context of other related issues. I have not come across in the sources I know of anyone who has written a separate section on this problem except my brother, the late al-Shaykh 'Abd al-Karim Maghniyyah,1 in his work Kitab al-qada'.

It is a known fact that both in the ancient and modern system of law the burden of proof lies on the claimant and the negator is burdened with an oath. The rule under discussion is just the opposite of it. According to it, it is binding to accept the claimant's word where it concerns his intention and cannot be known except from him, and which cannot possibly be witnessed. Examples of it abound in law, both in matters related to rituals (‘ibadat) and transactions (mu’amalat). Some of them are the following:

1. If something is entrusted to a person and he claims having returned it, or claims its destruction without any negligence or misuse on his part, his word will be accepted on oath despite his being the claimant.

2. When a marriage contract is concluded between two minors by an officious third party, if one of them, on maturing, agrees and gives his/her consent to the contract and then dies before the other's majority, a part of his/her estate, equal to the minor's share will be set apart, and on his/her majority and agreement to the contract, he/she would also be required to take an oath that his/her consent is not motivated by greed for the legacy. On his/her taking the oath, he/she will take his/her share of the deceased's estate. This is so because the intention of a person can be known only from him.

3. If a person pronounces the divorce of his wife and then claims that he did not intend it, his claim will be accepted as long as she is undergoing 'iddah.

4. The claim of a person to have paid zakat or khums will be accepted.

5. The claim of a woman concerning her state of menstruation, purity, pregnancy and ‘iddah will be accepted.

6. The claim of indigence and need.

7. The claim by a woman that she is free of all impediments to marriage.

8. The claim of a youth that he has attained puberty (ihtilam).

9. The husband's claim that he has had intercourse with his wife, after she claims that he is impotent and the judge grants him a year's time. Details of it were mentioned while discussing impotence (in the chapter on marriage).

10. The claim of a working partner in a mudarabah partnership (where one partner contributes capital while the other contributes his skill, labour and know-how) that he has purchased a particular commodity for himself, which the partner contributing capital denies. Here the purchaser's word is accepted because he knows his intention better. There are other such examples.

Al-Shaykh 'Abd al-Karim has mentioned three proofs in his Kitab al-qada':

The first proof is confirmed consensus, both in theory and practice. I have seen legists invoking this principle in all instances of its application, issuing fatwas on its basis in different branches of law, considering it as one of the most incontrovertible of principles. All this points towards a definite proof and a consensus regarding its being a general premise referred to in instances of doubt. The legists invoke this principle as a cause while accepting the word of an insolvent person, because if his word is not accepted, it will result in a sentence of perpetual imprisonment due to his inability to prove it...

The second proof is that which has been explicitly reported in some traditions. A certain narrator says. "I asked al-lmam al-Rida (A), '(What is to be done) if a man marries a woman and then a doubt arises in his mind that she has a husband?' The Imam (A) replied, 'He is not required to do anything; don't you see that if he asks her for a proof, she will not be able to find anyone who can bear witness that she has no husband?' "

Thus, the impossibility of producing witnesses is common to all these instances where another person's testimony is not possible due to the act being a private fact between the person and his Lord, which cannot be known except from the person himself. This is in addition to what has been narrated in the tradition regarding the acceptability of women's claim concerning menses, purity, 'iddah and pregnancy.

The third proof is that in the event of not accepting the claimant's word in matters that cannot be known except from him, the dispute would of necessity remain unresolved and there would be no means in the Shari'ah for deciding disputes, and this is contradictory to the basic principle that says that there is a solution for everything in the Shari’ah. Therefore, in such circumstances the claimant's claim will be accepted after his taking an oath, because apart from this there is no other way to settle the dispute.

As to the need for an oath, it is in line with the consensus that in every claim in which the claimant's word is given precedence, he is bound to take an oath, because disputes are solved either by evidence or oath, and when it is not possible to produce a proof, the claimant's oath is the only alternative. Here it is not possible to burden the negator with an oath, because among the requirements of an oath is certain knowledge of the fact for which the oath is being taken, and there is no way a negator can have knowledge of the claimant's intention. It is necessary to point out that the need to make such a claimant take an oath arises in the case of a dispute that cannot be settled except by his oath. But if there is no such dispute, his word will be accepted without an oath (e.g. his claim of having paid zakat and khums, or his claim of their not being wajib upon him because he does not fulfil the conditions for their incidence).

Also necessary for accepting the claim of such a claimant is the absence of circumstantial evidence refuting the veracity of his claim. Thus if an act of his proves his intention - such as when he buys or sells and then claims that it was unintentional - it would result in his proving his own falsity because the apparent circumstances establish his intention. As to the acceptance of a claimant that he did not intend divorce, it is limited, as mentioned earlier, to a revocable divorce as long as the divorcee is undergoing 'iddah, and this claim of his is considered his reclaiming her. Hence his word will not be given credence and his claim will not be heard if the divorce is irrevocable or if he makes the claim after the completion of 'iddah.

- 1. He died in 1936 and left behind many compilations, all of them related to law and jurisprudence, and none of which have appeared in print. Among them is a good and useful treatise on ‘adalah. The best of these works is a big book on qada’, and there exists only a single copy of this work written in his own hand. It is a unique work and no other book like it has been compiled on this issue. My first reliance in writing this section has been on that book, then on al-Jawahir and the appendices of al-‘Urwah.

Court Divorce (Talaq Al-Qadi)

Is a judge entitled to divorce someone's wife against his will? Abu Hanifah says: A judge is not entitled to divorce someone's wife, whatever the cause, except when the husband is majbub, khasi or ‘anin,1 as mentioned earlier in the section on defects. Thus, failure to provide maintenance, intermittent absence, life imprisonment, etc., do not validate a woman's divorce without the husband's consent, because divorce is the husband's prerogative.

Malik, al-Shafi'i and Ibn Hanbal allow a woman to demand separation before a judge on certain grounds, of which some are the following:

I. Non-provision of maintenance: These three legists concur that when the incapability of a husband to provide essential maintenance is proved, it is valid for his wife to demand separation. But if his inability is not proved and he refuses to provide maintenance, al-Shafi'i observes: The two may not be separated; Malik and Ahmad remark: Separation may take place, because the failure to provide his maintenance is similar to insolvency. The law in Egypt explicitly validates the right to claim separation on the failure to provide maintenance.

2. Causing harm to the wife with word or deed: Abu Zuhrah, in al-Ahwal al-shakhsiyyah (page 358). says: It is stated in Egyptian law, Act 25 of 1929, that if a wife pleads harm being caused to her by the husband, so that the like of her cannot continue living with him, the judge will divorce her irrevocably on her proving her claim and after the judge's failing to reform the husband. If the wife fails to prove her claim but repeats her complaint, the judge will appoint two just arbitrators related to the couple to find out the reasons for the dispute and to make an effort to resolve it. On their failing to do so, they will identify the party at fault, and if it is the husband or both of them, they will cause their separation through an irrevocable divorce on the judge's order. This law is based on the opinion of Malik and Ahmad.

The Sunni Shari'ah courts in Lebanon rule separation if a dispute arises between them and two arbitrators specify the necessity of separation.

3. On harm being caused to a wife by the husband's absence, according to Malik and Ahmad, even if he leaves behind what she requires as maintenance for the period of his absence. The minimum period after which a wife can claim separation is six months according to Ahmad, and three years according to Malik, though a period of one year has also been narrated from the latter. The Egyptian law specifies a year. Whatever the case, she will not be divorced unless he refuses both to come to her or to take her to the place of his residence. Moreover, Malik does not differentiate between a husband having an excuse for his absence and one who has none with regard to the application of this rule. Thus both the situations necessitate separation. But the Hanbalis state: Separation is not valid unless his absence is without an excuse. (al-Ahwal al-shakhsiyyah of Abu Zuhrah and Farq al-zawaj of al-Khafif)

4. On harm being caused to a wife as a result of the husband's imprisonment. Ibn Taymiyyah, a Hanbali, has explicitly mentioned it and it has also been incorporated in Egyptian law that if a person is imprisoned for a period of three years or more, his wife is entitled to demand separation pleading damage after a year of his imprisonment, and the judge will order her divorce.

Most Imamiyyah legists do not empower the judge to affect a divorce, regardless of the circumstances except in the case of the wife of a missing husband, after the fulfillment of the conditions mentioned earlier. This stand of the Imamiyyah is in consonance with the literal meaning of the tradition:

الطلاق بيد مَن أخذ بالساق.

But a group of grand legal authorities (al-maraji’ al-kibar) have permitted divorce by a judge, with a difference of opinion regarding its conditions and limitations. We cite their observations here.

Al-Sayyid Kazim al-Yazdi, in the appendices to al-'Urwah (bab al-'iddah), has said: The validity of a wife's divorce by a judge is not remote if it comes to his knowledge that the husband is imprisoned in a place from where he will never return, and similarly where the husband though present is indigent and incapable of providing maintenance, along with the wife's refusal to bear it patiently.

Al-Sayyid Abu al-Hasan al-Isfahani, in the bab al-zawaj of al-Wasilah (under the caption, al-qawl fi al-kufr), writes: If a husband refuses to provide maintenance while possessing the means to· do so and the wife raises the issue before a judge, the judge will order him to provide her maintenance or to divorce her. On his refusing to do either, and it not being possible to maintain her from his wealth or to compel him to divorce, the obvious thing which comes to the mind is that the judge will divorce her, if she so desires. Al-Sayyid Muhsin al-Hakim has given a similar fatwa in Minhaj al-Salihin (bab al-nafaqat).

The author of al-Mukhtalif has narrated from Ibn Junayd that the wife has the option to dissolve marriage on the husband's inability to provide maintenance. The author of al-Masalik, while discussing the divorce of a missing person's wife, observes: As per an opinion, the wife is entitled to break off marriage on the basis of non-provision of maintenance due to pennilessness. The author of Rawdat al-jannat (vol.4), in the biographical account of Ibn Aqa Mubammad Baqir al-Behbahani, one of the great scholars says: He wrote a treatise (risalah) on the rules of marriage concerning indigence, entitled Muzhir al-mukhtar. In it, he has upheld the validity of wife's annulling marriage in event of husband's refusing, despite his presence, to maintain or divorce her, even if his refusal is a result of poverty and indigence.

The Imams of the Ahl al-Bayt (A) are on record as having said: "If a husband fails to provide his wife clothes to cover her body ('awrah) and food to fill her stomach, the imam is entitled to separate them." This, along with other reliable traditions, especially the tradition:

الطلاق لمن أخذ بالساق,

bestows upon the Imami legist the authority to grant divorce on the fulfilment of the requisite conditions and no one may object to him for it as long as his act is in accordance with the principles of Islam and those of the legal schools.

There is no doubt that the scholars who have refrained from granting divorces have done so on account of caution and the fear lest this power should be misused by persons devoid of the necessary learning and commitment to the faith, resulting in divorces being granted without the fulfilment of the conditions of the Shari'ah. This is the sole reason which has caused me to refrain despite the knowledge that if I do so I would be justified before God. I consider that a sensible solution to this problem and one which would prevent every unfit person from exercising this authority is the appointment by the maraji’ of reliable representatives in Iraq or Iran bound by certain conditions and limitations within which they may affect a divorce – as was done by al-Sayyid Abu al-Hasan al-Isfahani.

- 1. For the meaning of these terms, see “Marriage according to Five Schools of Islamic Fiqh”, Part 2, under “al-‘Uyub (defects)”, al-Tawhid, vol. IV, No.4, pp.39-41.

Al-Zihar

Zihar means a husband telling his wife: "You are to me like the back of my mother." The schools concur that if a husband utters these words to his wife, it is not permissible for him to have sex with her unless he atones by freeing a slave. If he is unable to do so, he should fast for two successive months. If even this is not possible, he is required to feed sixty poor persons.

The schools also concur in considering a husband who has intercourse before the atonement a sinner, and the Imamiyyah also require him to make a double atonement.

The Imamiyyah consider zihar valid if it takes place before two just male witnesses hearing the husband's pronouncement to the wife in a period of purity in which she has not been copulated with, exactly as in the case of divorce. Similarly, researchers among them also require her marriage to have been consummated, otherwise zihar will not take place.

The reason for opening a separate chapter for zihar in Islamic law are the opening verses of the Surat al-Mujadilah. The exegetes describe that Aws ibn Samit, one of the Prophet's (S) Companions, had a wife with a shapely body. Once he saw her prostrating in prayer. When she had finished, he desired her. She declined. On this he became angry and said: "You are to me like the back of my mother". Later he repented having said so. Zihar was a form of divorce amongst the pagan Arabs, and so he said to her: "I presume that you have become haram for me. She replied: "Don't say so, but go to the Prophet (S) and ask him". He told her that he felt ashamed to question the Prophet (S) about such a matter. She asked him to permit her to question the Prophet (S), which he did. When she went to the Prophet (S), ‘A'ishah was washing his (S) head. She said: "O Apostle of God! My husband Aws married me when I was a young girl with wealth and had a family. Now when he has eaten up my wealth and destroyed my youth, and when my family has scattered and I have become old, he has pronounced zihar, repenting subsequently. Is there a way for our coming together, by which you could restore our relationship?"

The Prophet (S) replied, "I see that you have become haram for him." She said, "O Prophet of God! By Him Who has given you the Book, my husband did not divorce me. He is the father of my child and the most beloved of all people to me." The Prophet (S) replied, "I have not been commanded regarding your affair." The woman kept coming back to the Prophet (S) and once when the Prophet (S) turned back she cried out and said: "I complain to God regarding my indigence, my need and my plight! O God, send upon Thy Prophet (S) that which would end my suffering". She then returned to the Prophet and implored his mercy saying, "May I be your ransom, O Prophet of God, look into my affair." 'A'ishah then said to her: "Curtail your speech and your quarrel. Don't you see the face of the Apostle of God?" Whenever the Prophet (S) received revelation a form of trance would overtake him.

The Prophet (S) then turned towards her and said: "Call your husband." When he came, the Prophet (S) recited to him the verses:

قَدْ سَمِعَ اللَّهُ قَوْلَ الَّتِي تُجَادِلُكَ فِي زَوْجِهَا وَتَشْتَكِي إِلَى اللَّهِ وَاللَّهُ يَسْمَعُ تَحَاوُرَكُمَا إِنَّ اللَّهَ سَمِيعٌ بَصِير * الَّذِينَ يُظَاهِرُونَ مِنْكُمْ مِنْ نِسَائِهِمْ مَا هُنَّ أُمَّهَاتِهِمْ إِنْ أُمَّهَاتُهُمْ إِلاَّ اللاَّئِي وَلَدْنَهُمْ وَإِنَّهُمْ لَيَقُولُونَ مُنْكَراً مِنْ الْقَوْلِ وَزُوراً وَإِنَّ اللَّهَ لَعَفُوٌّ غَفُورٌ * وَالَّذِينَ يُظَاهِرُونَ مِنْ نِسَائِهِمْ ثُمَّ يَعُودُونَ لِمَا قَالُوا فَتَحْرِيرُ رَقَبَةٍ مِنْ قَبْلِ أَنْ يَتَمَاسَّا ذَلِكُمْ تُوعَظُونَ بِهِ وَاللَّهُ بِمَا تَعْمَلُونَ خَبِيرٌ * فَمَنْ لَمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ مِنْ قَبْلِ أَنْ يَتَمَاسَّا فَمَنْ لَمْ يَسْتَطِعْ فَإِطْعَامُ سِتِّينَ مِسْكِيناً ذَلِكَ لِتُؤْمِنُوا بِاللَّهِ وَرَسُولِهِ وَتِلْكَ حُدُودُ اللَّهِ وَلِلْكَافِرِينَ ٌ عَذَابٌ أَلِيم .

God has heard the speech of her who disputes with you concerning her husband and complains to God. And God hears your colloquy. Surely God is the Hearer, the Seer. Those among you who pronounce zihar to their wives, they (the wives) are not their mothers. Their mothers are only those who gave them birth; and they indeed utter an ill word and a lie, and indeed God is Pardoning, Forgiving. And those who pronounce zihar to their wives and then recant their words, should free a slave before they touch each other. Unto this you are exhorted; and God is aware of your actions. And he who does not possess the means, should fast for two successive months before they touch each other. And he who is unable to do so, should feed sixty needy ones. This, that you may put trust in God and His Apostle. These are the limits set by God; and for unbelievers is a painful chastisement. (58:1-4)

After reciting these verses the Prophet (S) said to the husband: "Can you afford to free a slave?" The husband replied: "That will take up all my means." The Prophet (S) then asked him, "Are you capable of fasting for two successive months?" He replied: "By God, if I do not eat three times a day my eyesight becomes dim and I fear that my eyes may go blind." Then the Prophet (S) asked him, "Can you afford to feed sixty needy persons?" He replied: "Only if you aid me, O Apostle of God." The Prophet (S) said, "Surely I will aid you with fifteen Sa’ (a cubic measure) and pray for blessings upon you." Aws, taking what the Prophet (S) had ordered for him, fed the needy and ate along with them and thus his affair with his wife was settled.

Al-Ila'

Ila’ is an oath taken by a husband in God's name to refrain from having sex with his wife. The Qur'anic basis of this concept is verse 226 of the Surat al-Baqarah:

للَّذِينَ يُؤْلُونَ مِنْ نِسَائِهِمْ تَرَبُّصُ أَرْبَعَةِ أَشْهُرٍ فَإِنْ فَاءُوا فَإِنَّ اللَّهَ غَفُورٌ رَحِيمٌ * وَإِنْ عَزَمُوا الطَّلاَقَ فَإِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ

Those who forswear their wives (by pronouncing ila') must wait for four months; then if they change their mind, lo! God is Forgiving, Merciful. And if they decide upon divorce, then God is surely Hearing, Knowing. ( 2:226--227)

The Imamiyyah require that marriage should have been consummated in order for ila' to be valid, otherwise ila' will not take place.

The schools concur that ila’ takes place where the husband swears not to have sex with his wife for the rest of her life or for a period exceeding four months.1 The schools differ if the period is four months; the Hanafis assert that it takes place and the other schools maintain that it doesn't.

There is consensus that if the husband has sex within four months, he must atone (for breaking his oath), but the hindrance to the continuation of marital relations will be removed. The schools differ where four months pass without sex. The Hanafis observe: She will divorce herself irrevocably without raising the issue before the judge, or the husband will divorce her. (Bidayat al-mujtahid)

The Maliki, the Shafi'i and the Hanbali schools state: If more than four months pass without his having sex, the wife will raise the issue before the judge so that he may order the husband to resume sexual relations. If the husband declines, the judge will order him to divorce her. If the husband declines again, the judge will pronounce her divorce, and in all situations the divorce will be revocable. (Farq al-zawaj of al-Khafif)

The Imamiyyah state: If more than four months pass without sex, and the wife is patient and willing, it is up to her and no one is entitled to object. But if she loses patience, she may raise the issue before the judge, who, on the completion of four months,2 will compel the husband to resume conjugal relations, or to divorce her. If he refrains from doing either, the judge will press him and imprison him until he agrees to do either of the two things, and the judge is not entitled to pronounce divorce forcibly on behalf of the husband.

All the schools concur that the atonement for an oath is that the person taking the oath should perform one of these alternatives: feed ten needy persons, provide clothing to ten needy persons, free a slave. If he has no means for performing any of these, he should fast for three days.

Furthermore, according to the Imamiyyah, only those oaths which are sworn in the name of the sacred Essence of God will be binding. The oath of a child and a wife is not binding if the father and the husband prohibit it, except when the oath is taken for performing a wajib or for refraining from a haram. Similarly, an oath will not be binding upon anyone if it is taken to perform an act refraining from which is better than performing it, or is taken to refrain from an act whose performance is better than refraining from it, except, of course, the oath of ila’, which is binding despite the fact that it is better to refrain from it.

- 1. The secret of stipulating this period is that a wife has the right to sex at least once every four months. It has been said that the difference goes back to the interpretation of the verse لِلَّذِينَ يُؤْلُونَ . Here there are those who say that the verse has not stipulated any period for ila’, and others who consider it necessary that four months pass before the judge may warn the husband either to restore conjugal ties or to divorce here, and this obviously requires a period of more than four months, even though by a moment.

- 2. Most Imamiyyah legists state: The judge will allow the husband four months’ time from the day the matter was brought to his notice, and not from the day of the oath.

8. Wasaya, Will and Endowments

Will and Bequest (Wasaya)

The five schools concur regarding the legality of making a will (wasiyyah) and its permissibility in the Islamic Shari'ah. Wasiyyah is a gift of property or its benefit subject to the death of the testator. A will is valid irrespective of its being made in a state of health or during the last illness, and in both cases the rules applicable are the same according to all the schools.

A will requires a testator (musi), a legatee (musa lahu), the bequeathed property (musa bihi), and the pronouncement (sighah) of bequest.

The Pronouncement

No specific wording is essential for making a will. Hence any statement conveying the intention of gratuitous transfer (of property or its benefit) after the death of the testator is valid. Thus if a testator says: "I make a will in favour of so and so," the words indicate testamentary intention, without needing the condition 'after death' to be specified. But if he says (addressing the executor): "Give it" or "Hand it over to so and so", or when he says, "I make so and so the owner of such and such a thing" it is necessary to specify the condition, 'after death', because without this consideration his words do not prove the intention of making a will.

The Imami, the Shafi'i and the Maliki schools observe: It is valid for a sick person who cannot speak to make a will by comprehensible gestures. Al-Shi'rani, in al-Mizan, narrates from Abu Hanifah and Ahmad the invalidity of making a will in this condition. In al-Fiqh 'ala al-madhahib al-'arba'ah (vol. 3, ‘bab al-wasiyyah’) this opinion is ascribed to Hanafis and Hanbalis: If a person suffers loss of speech due to illness, it is not valid for him to make a will (by gestures), unless it continues for a long period of time and he becomes dumb, settling down to communicating in familiar gestures. In that case, his gestures and writing will be considered equivalent to his speech.

Al-Shi'rani ascribes this opinion to Abu Hanifah, al-Shafi'i and Malik: If a person writes his own will and it is known that it is in his hand, it will not be acted upon unless he has it attested. This implies that if a will written in his hand is found which he neither got attested nor made known its contents to people, the will will not be probated even if it is known to have been made by him.

Ahmad says: It will be acted upon, unless he is known to have revoked it. Researchers among the Imami legists observe: Writing proves a will, because the apparent import of a person's acts is similar to the import of his spoken statements, and writing is the sister of speech in the sense that both make known his intent; rather, writing is the superior of the two in this regard, and is preferable to all other evidence that proves intent.1

The Testator

There is consensus among all the schools that the will of a lunatic in the state of insanity and the will of an undiscerning child (ghayr mumayyiz) are not valid.

The schools differ regarding the will of a discerning child; the Malikis, the Hanbalis, and al-Shafi'i in one of his two opinions, observe: The will of a child of ten complete years is valid because the Caliph 'Umar probated it. The Hanafis say: It is not valid except where the will concerns his funeral arrangements and burial. And it is well-known that these things do not require a will. The Imamiyyah are of the opinion that the will of a discerning child is valid if it is for a good and benevolent cause and not otherwise, because al-Imam al-Sadiq considered it executable only in such cases. (al-Jawahir and Abu Zuhrah's al-Ahwal al-shakhsiyyah)

According to the Hanafis, if a sane adult makes a will and then turns insane, his will is void if his insanity is complete and continues for six months; otherwise, it is valid. If he makes a will in sound mind and then develops a condition of delusion leading to mental derangement lasting until death, his will will be void (al-Fiqh 'ala al-madhahib al-'arba'ah, vol.3, ‘bab al-wasiyyah’). The Imami, the Maliki and the Hanbali schools are of the opinion that subsequent insanity does not nullify a will even if it continues till death, because subsequent factors do not nullify preceding decisions.

The Hanafis, the Shafi'is and the Malikis consider the will of an idiot as valid. The Hanbalis observe: It is valid in regard to his property and invalid regarding his children. Therefore, if he appoints an executor over them, his will will not be acted upon (al-Ahwal al-shakhsiyyah of Abu Zuhrah and al-Fiqh 'ala al-madhahib al-'arba'ah). The Imamiyyah state: The will of an idiot is not valid concerning his property and valid in other matters. Thus if he appoints an executor over his children, his will is valid, but if he wills the bequest of something from his property, it is void.

The Imamiyyah are unique in their opinion that if a person inflicts injury upon himself with an intention of suicide and then makes a will and dies, his will is void. But if he first makes a will and then commits suicide, his will is valid.

The Maliki and the Hanbali schools regard the will of an intoxicated person as invalid. The Shafi'is say: The will of a person in a swoon is not valid. But the will of a person who has intoxicated himself voluntarily is valid.

The Hanafi school is of the opinion that a will made in jest or by mistake or under coercion is not valid (al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 3, ‘bab al-wasiyyah’)

The Imamiyyah observe: A will is not valid if made in a state of intoxication or stupor, in jest, by mistake, or under coercion.

The Legatee

The four Sunni schools concur that a will in favour of an heir is not valid unless permitted by other heirs.

The Imamiyyah observe: It is valid in favour of an heir as well as a non-heir, and its validity does not depend upon the permission of the heirs as long as it does not exceed a third of the estate. The courts in Egypt earlier used to apply the opinion of the Sunni schools, but then switched over to the Imami view. The Lebanese Sunni Shari'ah courts continue to consider a will in favour of an heir as invalid. But since some years their judges have inclined towards the other view and have brought a bill to the government authorizing wills in favour of heirs.

All the schools concur that it is valid for a dhimmi (a non-Muslim living under the protection of an Islamic State) to make a will in favour of another dhimmi or a Muslim, and for a Muslim to make a will in favour of a dhimmi or another Muslim, in consonance with the verse:

لاَ يَنْهَاكُمْ اللَّهُ عَنْ الَّذِينَ لَمْ يُقَاتِلُوكُمْ فِي الدِّينِ وَلَمْ يُخْرِجُوكُمْ مِنْ دِيَارِكُمْ أَنْ تَبَرُّوهُمْ وَتُقْسِطُوا إِلَيْهِمْ إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ * إِنَّمَا يَنْهَاكُمْ اللَّهُ عَنْ الَّذِينَ قَاتَلُوكُمْ فِي الدِّينِ وَأَخْرَجُوكُمْ مِنْ دِيَارِكُمْ وَظَاهَرُوا عَلَى إِخْرَاجِكُمْ أَنْ تَوَلَّوْهُمْ وَمَنْ يَتَوَلَّهُمْ فَأُوْلَئِكَ هُمْ الظَّالِمُونَ

God does not forbid you respecting those who have not made war against you on account of your religion, and have not expelled you from your homes, that you show kindness to them and deal with them justly; surely God loves the just. God only forbids you respecting those who made war with you on account of your religion, and expelled you from your homes and assisted in your expulsion, that you befriend them. And whosoever takes them for friends - they are the evildoers. (60: 8--9)

The schools differ regarding the validity of a will made by a Muslim in favour of a harbi.2 The Malikis, the Hanbalis and most of the Shafi'is consider it valid.

According to the Hanafi and most Imami legists, it is not valid. (al-Mughni, vol.6, al-Jawahir, vol. 5, ‘bab al-wasiyyah’)

The schools concur regarding the validity of a will made in favour of a foetus, provided it is born alive. Bequest is similar to inheritance, and there is ijma’ that afterbom children inherit; hence their capacity to own bequests as well.

The schools differ as to whether it is necessary for the foetus to exist at the time of making the will. The Imami, the Hanafi and the Hanbali schools, as well as al-Shafi'i in the more authentic of his two opinions, say: It is necessary, and a foetus will not inherit unless it is known to exist at the time of making the will. The knowledge of its existence is acquired if its mother has a husband capable of intercourse with her and it is born alive within a period of less than six months from the date of the bequest. But it it is born after six months or more it will not receive anything from the legacy, because of the possibility of its being conceived after the time of the bequest. This opinion is based on the invalidity of a bequest in favour of one not in existence.

The Malikis state that bequest in favour of existing foetus as well as one to be conceived in the future is valid, for that they regard a bequest in favour of someone non-existent as valid.3 (al-'Allamah al-Hilli’s Tadhkirah; al-Fiqh 'ala al-madhahib al-'arba’ah; al-'Uddah fi fiqh al-Hanabilah, ‘bab al-wasiyyah’)

If a person makes a will in favour of a foetus and then twins, a boy and a girl, are born, the legacy will be distributed among them equally because a bequest is a gift, not an inheritance: thus it resembles his giving them a gift after their birth.

The schools concur that it is valid to make a will for public benefit, such as for the poor and destitute, for students, for mosques and schools. Abu Hanifah excludes bequest in favour of a mosque or something of the kind because a mosque does not have the capacity to transfer ownership. Muhammad ibn al-Hasan, his pupil, considers it valid, the income of the legacy being spent for the mosque. This has been the custom among the Muslims in the east and the west, in the past and at the present.4

The schools differ where the legatee is a specific person, as to whether his acceptance is necessary or if the absence of rejection on his part is sufficient.

The Imami and the Hanafi schools observe: His not rejecting the bequest is sufficient. Therefore, if the legatee is silent and does not decline the bequest, he will become the owner of the legacy after the testator's death.

The Imamiyyah are of the opinion that if a legatee accepts the bequest during the life of the testator, he is entitled to decline it after his death; also if he refuses the bequest during the testator's life, he is entitled to accept it after his death, because his acceptance and refusal have no effect during the life of the testator, for ownership does not materialize during such time. According to the Hanafi school, if he refuses during the testator's life, he is entitled to accept after his death; but if he accepts during his life, he cannot reject it thereafter.

The Shafi'i and the Maliki schools state: It is necessary that the legatee accept the bequest after the death of the testator, and his silence and non-refusal do not suffice. (al-'Allamah al-Hilli's Tadhkirah, al-Fiqh 'ala al-madhahib al-'arba'ah)

The four Sunni schools observe: If the legatee dies before the testator, the will becomes void because the bequest then becomes a gift to a dead person, and this causes it to become void. (al-Mughni, vol.6, ‘bab al-wasiyyah’)

The Imamiyyah say: If the legatee dies before the testator and the testator does not revoke the will, the heirs of the legatee will take his place and play his role in accepting or rejecting the bequest. Thus if they do not reject the bequest, the legacy will be solely their property, which they will distribute between themselves in the form of an inheritance, without it being incumbent upon them to pay from this bequest the debts of the decedent or to comply with his will in regard to the bequest. They argue that acceptance of the bequest was the decedent's right, which is transferred to his heirs, like the option to reject (khayar al-radd). They also cite the traditions of the Ahl al-Bayt5 as another basis for their argument.

According to Malik, and al-Shafi'i in one of his two opinions, a bequest in favour of the murderer (of the testator) is valid regardless of its being an intentional or unintentional homicide. The Hanafis validate the bequest if permitted by the testator's heirs.

The Hanbalis observe: The bequest is valid if it is made after the injury causing death, and is void if murder takes place after the bequest. (Abu Zuhrah's al-Ahwal al-shakhsiyyah, ‘bab al-wasiyyah’)

The Imamiyyah say: A bequest is valid in favour of a murderer, because the proofs regarding the validity of a will are general. The verse:

مِنْ بَعْدِ وَصِيَّةٍ يُوصَى بِهَا أَوْ دَيْنٍ

includes a murderer as well as others, and to limit it to a non-murderer requires proof.

The Legacy

The schools concur that it is necessary that the bequest be capable of being owned, such as property, house and the benefits ensuing from them. Therefore, the bequest of a thing which cannot be owned customarily (e.g. insects) or legally (e.g. wine, where the testator is a Muslim) is not valid, because transfer of ownership is implicit in the concept of bequest and when it is not present there remains no subject for the bequest.

There is consensus among the schools regarding the validity of the bequest of the produce of a garden, perpetually or for a specific number of years.

The Imamiyyah extend the meaning of bequest to its utmost limit, permitting therein that which they don't permit in a sale and other transactions. They consider as valid a bequest of something non-existent with a probability of future existence, or something which the testator is incapable of delivering (e.g. a bird in the sky or a straying animal), or something which is indeterminate (e.g. the bequest of a dress or animal without mentioning what dress and which animal). They further observe: It is valid for the testator to be vague to the utmost extent (he may say: 'I promise to give something', 'a little', or 'a large quantity', ' a part', or 'a share', or 'a portion',6 to a certain person).

None of these forms is valid in a transaction of sale, though valid in a bequest. The author of al-Jawahir says: "Perhaps the validity of all these forms is due to the general nature of the proofs validating wills, which include all these forms and all interests that are capable of being transferred.... Perhaps the rule in bequests is that all things can be bequeathed except those that are known to be nonbequeathable, "i.e. those which have been excluded by a canonical proof (e.g. wine, swine, waqf, the right to qisas, the punishment for qadhf, etc.). Some of them have stated that it is not valid to sell an elephant, though it can be validly bequeathed.

Al-Shaykh Muhammad Abu Zuhrah, in al-Ahwal al-shakhsiyyah, ‘bab al-wasiyyah’, says: The fuqaha' have extended the scope of the rules of bequest and have permitted in it that which they don't permit in other forms of transfer, e.g. the bequest of something indeterminate. Thus if you make a will using the words, 'a share', 'a piece', 'something', 'a little', etc., the will will be valid .... and the heirs will have to give any quantity they desire from among the prohable quantities understood from that word.

This observation is in concurrence with the view of the Imamiyyah, and, accordingly, there is an agreement concerning this issue.

The Extent of Testamentary Rights

A gratuitous bequest is operative only up to one-third of the testator's estate in the event of having heir, irrespective of the bequest being made in illness or good health. As per consensus, any excess over one-third requires the permission of the heirs. Therefore, if all of them permit it, the will is valid, and if they refuse permission, it becomes void. If some heirs give permission and others refuse, the will will be executed by disposition of the excess over one-third from the share of the willing heirs. The permission of an heir will not be effective unless he be a sane and mature adult.

The Imamiyyah observe: Once the heirs give permission, they are not entitled to withdraw it, regardless of whether the permission was given during the life of the testator or later.

The Hanafi, the Shafi’i and the Hanbali schools say: The permission given by the heirs or their refusal to do so will have no consequences except after the testator's death. Thus if they give permission during his lifetime and then change their minds and decline permission after his death, it is valid, irrespective of the permission having been given during the health of the testator or during his illness. (al-Mughni)

The Malikis are of the opinion that if the heirs give permission during the illness of the testator, they are entitled to withdraw it, and if they permit while he is healthy, the will will be executed from their share of the legacy, without their having a right to revoke the permission.

The Imami, the Hanafi and the Maliki schools state: When permission is granted by the heir for that which exceeds one-third of the legacy, it is considered approval of the testator's act and the operationality of the bequest, not as a gift from the heir to the legatee. Accordingly, it neither requires possession, nor other rules applicable to a gift apply to it.

The schools differ concerning a testator who has bequeathed all his wealth and does not have any specific heir. Malik observes: The bequest is only valid up to one-third of the legacy. Abu Hanifah states: It is permissible for the whole legacy. Al-Shafi'i and Ahmad have two opinions, and so do the Imamiyyah, the more reliable of them being the one declaring its validity. (al-Bidayah wa al-nihayah; al-Tadhkirah, ‘bab al-wasiyyah’)

There is consensus among the schools that inheritance and bequest are operational only after the payment of the debt of the decedent or his release from it. Therefore, the one-third from which the will is executed is a third of what remains after the payment of debt. They differ concerning the time at which the one-third will be determined: Is it a third at the time of death or at the time of the distribution of the estate?

The Hanafis say: The one-third will be determined at the time of distributing the estate. Any increase or decrease in the estate will be shared by the heirs and the legatees. Some Hanbali and Maliki legists concur with this opinion.

The Shafi'is observe: The one-third will be determined at the time of the testator's death. (Abu Zuhrah)

The Imamiyyah state: That which the decedent comes to own after his death will be included in his estate (e.g. the reparation for unintentional homicide and for intentional murder, where the heirs compromise over reparation, and as when the decedent had during his life set up a net and birds or fish are trapped in it after his death; all these will be included in the estate and from it a third will be excluded). This observation of the Imamiyyah is close to the Hanafi view.

The Imami, the Shafi'i and the Hanbali schools state: If the decedent is liable for payment of zakat or any wajib expiation (kaffarah) or to perform the compulsory hajj or other wajib duties of monetary nature, these will be taken from his whole estate, not from a third of it, irrespective of his having willed to this effect or not, because these duties are related directly to God (haqq Allah), and as mentioned in the traditions have a greater right to be fulfilled. If the decedent has made a provision for their fulfilment in his will and has determined their expenses from a third of his estate, his word will be acted upon, in consideration of the heirs.

The Hanafis and the Malikis observe: If he has provided for his unfulfilled duties in the will, their expenses will be taken from a third of his estate and not the whole, and if he makes no provision for them in his will they will annul on his death (al-Mughni, al-Tadhkirah, al-Bidayah wa al-nihayah)

The schools concur that a will for performing mustahabb acts of worship will be executed from a third of the estate.

Clashing Wills

If the bequeathable third is insufficient for meeting all the provisions of a will (such as where the testator has made a bequest of one thousand for Zayd, two thousand for the poor, and three thousand for a mosque, while his bequeathable third is five thousand, and the heirs do not permit the excess to be met from their share), what is the rule here?

The Maliki, the Hanbali and the Shafi'i schools say: The bequeathable third will be distributed among them in proportion to their amounts; i.e. the deficit will affect every legatee in proportion to his share in the will. (al-Mughni)

The Imamiyyah state: If the testator makes many wills exceeding his bequeathable third, and the heirs do not permit the excess on the wills being conflicting to one another (such as when he says: "One-third of my estate is for Zayd," and says later,"One-third is for Khalid") the later will will be acted upon, and the former ignored. And if the wills include wajib and non-wajib provisions, the wajib provisions will be given precedence. If the wills are of equal weight, then if the testator has included them in a single statement and said: "Give Jamal and Ahmad 1000," while his bequeathable third is 500, this amount will be distributed among the two, each receiving 250. But if the testator gives precedence to one of them and says: "Give Jamal 500. and Ahmad 500", the whole amount will be given to the first and the second will will be considered void because the first will has completely exhausted the bequeathable third and no subject remains for the second.

The four Sunni schools observe: If a testator bequeaths a specific thing in favour of a person, and then bequeaths the same thing in favour of another, that thing will be equally distributed between them (thus, if he says: "Give this car to Zayd after my death," and says later: "Give it to Khalid," it will become the joint property of both).

The Imamiyyah say: It belongs to the second, because the second will implies abandonment of the earlier one.

According to the Imamiyyah, if a testator bequeaths a specific thing to every heir equal to each heir's share of the legacy, the will is valid (e.g. if he says: "The garden is for my son Ibrahim, and the house is for his brother, Hasan"), and the will will be executed if there is no favouritism involved, because there is no clash of interests of the heirs. Some Shafi'i legists and some Hanbalis concur with this view.

There is consensus among the schools that the thing bequeathed, regardless of its being an undifferentiated part (e.g. one-third or one-fourth of the whole estate) or something specific, the legatee will become its owner on the testator's death, regardless of the legacy's presence. Thus he takes his share along with the heirs if the subject of legacy is present, and similarly when the subject of legacy, not present earlier, appears.

When the subject of legacy is something distinct, independent and determinate, the Imami and the Hanafi schools say: The legatee will not become its owner unless the heirs possess twice its value (as their share of the testator's estate). But if the testator has assets not present or debts (receivable), and the subject of bequest is more than one-third in value of what the heirs possess, the heirs are entitled to resist the legatee and stop him from taking more than a third of the total estate into possession, especially where the assets not present are in danger of perishing or when it is infeasible to reclaim them. When the thing not present earlier turns up, the legatee is entitled to the remaining part of the bequest to the extent of a third of the entire present assets. But if nothing turns up, the rest of the legacy is for the heirs.

Revocation of Will

There is consensus among the schools that a will is not binding on the testator or the legatee. Thus it is valid for the former to revoke it, regardless of its being the bequest of an asset, or benefit (manfa'ah) or guardianship (wilayah). Discussion regarding the second point will follow shortly.

A revocation by the testator may take place by word or deed (e.g. his bequeathing an article and then consuming, gifting or selling it). The Hanafis are said to hold that selling is not considered a revocation, and the legatee is entitled to receive its price.

Bequest of Benefits

The schools concur regarding the validity of a bequest of benefit (e.g. the lease of a house, the right to reside in it, an orchard's produce, a goat's milk, and other such benefits which accrue in course of time) irrespective of the testator's restricting the benefit to a specific period or his bequeathing it perpetually.

The schools differ concerning the method of deriving the benefit from the bequeathable third. The Hanafis observe: The value of the bequeathed benefit will be estimated from the subject of the benefit, irrespective of whether the bequest of the benefit is temporary or perpetual. Thus, if a testator bequeaths the right to reside in a house for a year or more, the value of the whole house will be estimated, and if its value covers a third of the legacy, the will will be operational; otherwise it will be inoperational and void.

The Shafi'i and the Hanbali schools say: The value of the benefits will be estimated in separation from the property. If a third of the property covers the value of the benefit, the bequest will be fully operational, if not, to the extent covered by a third of the property. (Abu Zuhrah)

Researchers among the Imamiyyah state: If the bequest of the benefit is not perpetual, the calculation of its value is easy because the article or property will retain its own value after subtracting the value of the benefit. Therefore, if a testator bequeaths the benefit of an orchard for a period of five years, the value of the whole orchard will be initially estimated. Supposing its estimate is 10,000, it will be re-estimated after deducting from it the benefit of five years. Supposing the re-estimated value is 5000, the difference of 5000 will be deducted from a third of the estate if it can bear it; otherwise, the legatee will be entitled to the benefit to the extent of a third of the legacy, be it the benefit of a year or more.

But if the bequest of the benefit is perpetual, the value of the orchard along with its benefit will be estimated initially, and then the procedure followed in a temporary bequest will follow. If one asks: "How and in what way can we estimate the value of a property devoid of benefit, for that which has no benefit has no value?" The reply is that there are some benefits that have value even if little. Thus, in an orchard, the broken branches and dry wood can be utilized by the heir; if a tree dries up due to some reason, the land it covered can be of use; if a house falls into ruins and the legatee undertakes no repairs, the heirs may benefit from its stones and land; the meat and hide of a goat can be used after it is slaughtered; and in all situations a property is not devoid of benefits apart from the bequeathed benefit.

The Dispositional Rights of an Ailing Person

Here, by an 'ailing person' is meant one whose death follows his illness, in a manner that the illness creates apprehensions in the minds of people that his life is at an end. Therefore, a toothache, eye pain, a slight headache, and the like are not considered alarming forms of illness. Thus, gifts made by a person suffering from an alarming sickness, who may recover from it and die after his recovery, will be considered valid.

Powers of Disposition of a Healthy Person

There is no doubt nor disagreement between the schools that when a healthy person disposes of his wealth, completely and unconditionally - i.e. without making it contingent upon his death - his disposition is operative from his property, irrespective of the disposition being wajib (e.g. the payment of a debt) or an act of favour (e.g. giving a gift, or creating a waqf).

But if a healthy person makes the disposition of his property contingent upon his death, it becomes a bequest, as mentioned. Therefore, if it is a non-monetary wajib (e.g. prayer, Hajj, etc.), it will be executed from a third of his legacy, and if it is a debt, it will be paid from the undivided estate, according to the Imami, the Shafi'i and the Hanbali schools, and from a third, according to the Hanafi and the Maliki schools.

The Powers of Disposition of an Ill Person

Those dipositions of an ill person that are contingent upon his death are bequests, and the rules applicable to them are those mentioned above concerning valid wills, because there is no difference between a will made during a state of health or illness, provided the ill person is mentally sound and completely conscious and aware.

If an ill person disposes his wealth without making it contingent upon his death, it will be seen whether his disposition is for his own use, such as his buying an expensive dress, enjoying food and drink, spending on medicine and for improving his health, travelling for comfort and enjoyment, etc. All these dispositions are valid and no one, including heirs, may object.

And if he disposes it impartially, such as when he sells, rents or exchanges his possessions for a real consideration, these transactions of his are enforceable from his estate and the heirs are not entitled to dispute it, because they don't lose anything as its consequence.

If he disposes in a complete form without making it contingent upon his death, and his dispositions include acts of favour (such as when he gives a gift or alms, or relinquishes a debt, or pardons a crime entailing damages, or sells for less than its actual price or buys at a higher price, or makes other such dispositions which entail a financial loss for the heirs), such dispositions will be operational from a third of his estate.7 The meaning of its being from a third of his estate is that its enforcement is delayed until his death. Thus if he dies in his illness and a third of his estate covers his completed gratuitous acts, it is clear that they are enforceable from the very beginning, and if the third falls short of them, such dispositions in excess of the third are invalid without the heirs' permission.

Wills and ‘Completed Dispositions’ During Illness

The difference between a will and dispositions (munjazat) during illness is that the will is made contingent upon death, whereas dispositions during illness are not made contingent upon death, irrespective of their being incontingent perpetually or being contingent upon some event capable of conditionality (such as when he makes a vow during illness to sacrifice a particulat ram if he is granted a son and then a son is born to him posthumously; such an act will be considered among dispositions during disease).

According to al-Mughni (a Hanbali legal text) and al-Tadhkirah (a book on Imami fiqh), there are five similarities and six differences between dispositions during illness and a will, and the similar wording of the two texts shows that al-'Allamah al-Hilli, the author of al-Tadhkirah (d.726/1326), has taken it from Ibn Qudamah, the author of al-Mughni (d.620/1223).8 It is useful to give a summary here of their views.

The five similarities between dispositions during illness and a will are the following:

1. Both depend for their execution on a third of the estate, or the consent of the heirs.
2. Dispositions during illness are valid in favour of an heir, exactly like a will, according to the Imamiyyah; according to the other four schools, they are not valid in favour of an heir, as in the case of a will.
3. Both of them have a lesser reward with God compared to charity given during health.
4. Dispositions contest with wills, within the one-third of the estate (from which both are to be enforced).
5. Both will be enforced from the one-third of the estate only at the time of death, neither before nor after it.

The six differences between a will and dispositions during illness are:

1. It is valid for a testator to revoke his will, while it is not valid for a donor during ailment to revoke his gift after its acceptance by the donee and his taking its possession. The secret here is that a will is a bequest conditional to death, and, consequently, as long as the condition is not fulfilled, it is valid to recant it, whereas a gift during illness is unrestricted and unconditional.

2. Dispositions are required to be accepted or rejected immediately and during the life of the donor, whereas a will is not required to be accepted or rejected until the death of the testator.

3. Dispositions require the fulfilment of certain conditions, such as knowledge of the gift and absence of harm: a will is not bound by these conditions.

4. Dispositions enjoy precedence over a will if one-third of the estate falls short of meeting both of them together, except when the will involves the setting free of a slave, in which case a will takes precedence over completed gifts. This is the view of the Imami, the Hanafi and the Shafi'i schools (al-Tadhkirah, ‘bab al-wasiyyah’).

5. If one-third of the estate is not sufficient to enforce all the dispositions, then, according to the Shafi'is and Hanbalis, the first among them will be enforced first, and so on. But if the one-third is not sufficient to fulfil several wills, the deficit will affect all of them, as pointed out while discussing clashing wills. The Imamiyyah enforce both wills and dispositions on a first-come-first basis.

6. If a donor during his last illness dies before the donee has taken possession of the gift, the option lies with the heirs: if they desire they may grant it. But a will has to be compulsorily acccepted after the death of the testator, without requiring the consent of the heirs.

The sixth difference has been mentioned by the author of al-Mughni, while the author of al-Tadhkirah does not mention it. It is better not to mention this difference, as done by al-'Allamah al-Hilli, because dispositions during sickness have many forms such as gift (hibah), the relinquishing of a debt, favouritism in sale or purchase, etc. Hence, when dispositions are not limited to gifts, it is not appropriate, firstly, to say "If a donor during his last illness dies before the donee has taken possession ....".

Secondly, if a donor during his last illness makes a gift and dies before the donee has taken its possession, according to the Hanbali, the Shafi'i, the Imami and the Hanafi schools, the gift is void because taking possession is a condition for its completion, and if the donee takes possession before the death of the donor the gift is concluded and will be accounted for in the third of the estate, like a will, and will not depend for its execution on the consent of the heirs, provided it does not exceed a third of the estate.

Hence it is not in fact a disposition without taking possession and after the death of the donor, for it to be said that it differs from or is similar to a will. After taking possession, the rules concerning wills will apply to it. From this it is clear that the mention of the sixth difference is out of place.

Acknowledgment during Sickness

The four Sunni schools concur that if during last illness a person acknowledges the debt of a non-heir, his acknowledgment is enforceable from the undivided estate, exactly like his acknowledgment during health. They differ where he acknowledges the debt of an heir; the Hanafi and the Hanbali schools observe: The other heirs are not bound by this acknowledgment and it will be considered void unless that heir brings a valid proof to establish his claim.

The Malikis say: The acknowledgment is valid if the decedent is not accused of partiality, and is void if so accused (e.g. when a person having a daughter and a cousin brother acknowledges a debt of his daughter, it will not be accepted, and if he acknowledges in favour of his cousin, it will be accepted, because he cannot be accused here of depriving his daughter and transferring the wealth to his cousin). The reason for rejecting the acknowledgment is accusation, and therefore it is limited to those instances where there is an accusation. (al-Mughni, vol.5, ‘bab al-iqrar’)

The Imamiyyah state: If he makes an acknowledgment during last illness (marad al-mawt) for an heir or a stranger, concerning a property or a debt claim, it will be seen: If there are any indications raising the suspicion that he is not sincere in his acknowledgment, so that it seems, going by ordinary factors, far-fetched that the thing acknowledged should belong to the person to whom it has been acknowledged to belong and that the sick person intends to impress this on others for some reason, the rule applicable to such an acknowledgment is the one applicable to a will: It will be executed from a third. But if the ill person is secure from suspicion in his acknowledgment, so that there is no indication to prove that he has lied (such as when there has been between him and the person in whose favour he has made the acknowledgment, earlier dealings which ordinarily explain such an acknowledgment), the acknowledgment will be enforced from the original estate, whatever its value.

This is when the condition of the person acknowledging is known; what if it is not known?

If the heir says that the decedent was not honest in his acknowledgment, then the burden of proof rests on the person in whose favour the acknowledgment has been made, to prove that he owns the thing which the decedent acknowledged as his during his last illness. If he proves this by bringing two just witnesses (al-bayyinah), the acknowledgment will be enforced from the original estate; otherwise, the heir will take an oath that he does not know that the thing acknowledged by the decedent belongs to that person; then the acknowledgment will be enforced from a third of the estate. The Imamiyyah have based their argument on traditions narrated from the Ahl al-Bayt ('a) such as the tradition narrated by Abu Basir:

إذا كان مصدقاً يجوز

(When his verity is established, it is valid) and other traditions; and as اذا is used in a conditional clause, it implies that the enforcement is made conditional to his trustworthiness and the establishment of his verity. 9

Appointment of Executor (al-Wisayah)

Al-wisayah is an undertaking by a person to execute the will of another after his death, such as clearing his debts, pursuing his debtors, the care and maintenance of his children, and other such functions. Responsibility for these functions is called al-wilayah or al-wasiyyat al-ahdiyyah, and the person charged with performing it called al-wasi al-mukhtar (an authorized executor).

Requirements for a Wasi

1. He should be a mukallaf, i.e. a sane adult, because a lunatic and a minor do not have authority over themselves; so there is no question of their exercising authority over the affairs of others. However, the Imamiyyah observe in this regard: It is not valid for a child to act as an executor individually, though valid if he acts together with an adult. Then the adult will execute the will individually till the minor attains majority, and then he will join him in its execution.

The Hanafis state: If a minor is appointed as wasi (executor), the judge will replace him with another, and if the minor has executed the will before being removed by the judge, his acts of execution of the will are valid and enforceable. Similarly, if he attains majority before being removed, he will continue with the execution of the will (al-Fiqh ‘ala al-madhahib al-'arba’ah and al-'Allamah al-Hilli’s al-Tadhkirah).

2. The wasi’s nomination must be determinate; thus if the testator appoints one of two persons without determining which one of them is to be the executor, the appointment of both is void.

3. The specification of the subject of will (musa bihi). Thus if the testator makes a will without specifying it (as when he says: "So and so is my wasi", and does not mention the thing over which he is to exercise this authority), the appointment is void according to the Imami, the Hanafi, the Shafi'i and the Hanbali schools. It has been narrated from Malik that such a wasi will have authority over the whole estate.

4. That the wasi be a Muslim: Thus it is not valid, as per consensus, for a Muslim to appoint a non-Muslim executor. But the Hanafis state: If a Muslim appoints a non-Muslim, it is for the judge to replace him with a Muslim, though the appointment itself will be considered valid. Hence if the non-Muslim wasi executes the will before his removal by the judge, or becomes a Muslim, he will remain a wasi, as in the case of a minor.

5. The Shafi'i school observes: It is wajib that the wasi be an 'adil person.
The Maliki, the Hanafi and researchers among the Imamiyyah state: It is sufficient that he be trustworthy and truthful, because 'adalah is a means here and not an end, and when the wasi strives to fulfil the provisions of the will - as is wajib for him - the purpose is achieved. 10

The Hanbalis say: If the wasi is dishonest, the judge will appoint a trustworthy person as a co-executor. This opinion is in consonance with the opinion of al-Sayyid al-Hakim in Minhaj al-salihin (vol.2) where he observes: If a dishonest act is committed by the wasi, a trustworthy person will be appointed alongside him to stop him from doing so. If this is not possible, he will be replaced by another.

6. As reported in the third volume of al-Fiqh 'ala al-madhahib al-'arba’ah, ‘bab al-wasiyyah’, the Hanafi, the Maliki and the Shafi'i schools require the wasi to be capable of executing the provisions of the will.

Al-'Allamah al-Hilli has stated in al-Tadhkirah: Apparently, the view taken by our 'ulama', i.e. the Imamiyyah, is that it is valid to appoint an executor incapable of executing the will, and his incapacity will be compensated by the supervision of the hakim; i.e. the judge himself will supervise his dispositions, or appoint a capable, trustworthy person to cooperate with the executor.

Refusal to Act as Executor

The testator is entitled to revoke the appointment of an executor, and the executor is entitled to reject his appointment by announcing his refusal, because al-wasiyyat al-ahdiyyah in this situation is not binding, as per consensus.

The schools differ regarding the validity of a rejection to act as executor by an executor without informing the testator. The Imami and the Hanafi schools say: It is not valid in any situation for an executor to reject his appointment after the death of the testator, and it is not valid during his life without informing him.

The Shafi'i and the Hanbali schools observe: It is valid for a wasi to reject his appointment at the beginning as well as during its course, without any restraint or condition. Therefore, he can reject before acceptance and after it, during the testator's life, by announcing it or without doing so, as well as after his death (al-Mughni, vol.6, ‘bab al-wasiyyah’)

Appointment of Two Executors

There is consensus among the schools that a testator is entitled to appoint two or more executors. If he categorically mentions that each one of them is independent in his dispositions, his word will be acted upon. Similarly, if he categorically mentions that both should act together, then neither of them will have independence of individual action. The schools differ where the testator does not specify anything concerning their acting individually or jointly. The Imami, the Shafi'i, the Maliki, and the Hanbali schools observe: Both have no power to act individually. So if they quarrel and disagree, the judge will compel them to agreement, and if he is unable to do so, he will replace both of them.

The Hanafis say: Each of the two executors is free to act individually concerning seven things: Shrouding of the deceased, payment of his debt, recovering of his will, returning of articles held in trust by the decedent, buying necessary food and clothing for the minor heirs, acceptance of a gift on their behalf, and pursual of legal proceedings initiated for or against the decedent. This is because agreement in such things is difficult and delays are harmful. Therefore, to act individually is valid in them. (al-Sayyid Abu al-Hasan's Wasilat al-najat on Imami fiqh, and al-Mughni, vol.6, ‘bab al-wasiyyah’)

Al-Sayyid Abu al-Hasan has remarked in al-Wasilah: If one of the two executors dies or turns insane or anything occurs to him which annuls his appointment as an executor, the second will become independent in the execution of the will, and there is no need to appoint a new co-executor.

Ibn Qudamah states in al-Mughni: The qadi will appoint a trustworthy person as his counterpart, because the testator was not satisfied with the individual supervision of the surviving executor, and no difference of opinion has been narrated in this issue except from the Shafi'is.

If both the executors die or their condition changes in a manner annulling their appointment, should the judge appoint two new executors or one will suffice? Here the schools differ. The correct view is that the judge will pay attention to expediency. Consequently, if it is expedient to appoint two executors, he will do so; otherwise it will be adequate to appoint one, because what is important is the will's execution, and the reason for the multiplicity of executors is usually the concern and affection of the executor for the legally disable heir or his friendship with the testator. In any case, there is no doubt that when one or more executors (as the case may be) die, it is as if there was no executor from the very beginning.

The Imamiyyah, the Shafi'is, and the Hanbalis in the more preponderant of the two narrations from Ahmad, state: An executor is not entitled to hand over the job of executing the will to another without the prior permission of the testator.

The Hanafi and the Maliki schools observe: It is valid for an executor to appoint by will another person to fulfil the duties for which he was appointed executor.

Appointing an Executor for Marriage

The schools differ as to whether anyone having authority (wilayah) concerning marriage (of a ward) is entitled to transfer it to another through a will (for instance, when a father authorizes the executor of his will concerning the marriage of his daughter or son).

Malik considers if valid. Ahmad observes: if the father mentioned the name of the specific person to whom his child should be married, it is valid to appoint an executor for marriage, not otherwise.
Al-Shaykh Abu Zuhrah in al-Ahwal al-shakhsiyyah, ‘bab al-wilayah’, narrates from a multitude of fuqaha’ that it is not valid to appoint an executor for marriage; the Imamiyyah hold the same opinion.

A Wasi’s Acknowledgment

If a wasi makes an acknowledgment of the decedent’s liability regarding some property or debt, his acknowledgment is not executable against the heirs, minor or major, because it is an acknowledgment regarding another’s dues. If the issue is raised in the court, the wasi will be considered a witness, provided he is not himself a party to the case.

If an executor gives evidence in favour of minor heirs or the decedent, his testimony will not be accepted because his testimony affirms his own right of disposal in regard to the subject of his evidence.

Liability of a Wasi

If anything suffers damage at the hands of the wasi, he is not liable for it unless he has violated or neglected his duty. If a minor heir on attaining majority accuses the wasi of breach of trust or negligence, the burden of proof will rest on the heir, and the wasi shall take an oath, because the wasi is a trustee, and in accordance with the hadith:

ليس على الأمين إلاّ اليمين

A trustee is liable for nothing except an oath.

Anyone accusing a wasi of breach of trust or negligence is entitled to proceed against him legally, provided that he is sincere in his intent and by doing so seeks the pleasure of God. But if it is known that he has no aim except harassment and defamation of the wasi, due to some enmity between them, then his plea will not be heard.

If a person dies intestate, and it is not possible to refer to a qadi, a reliable and trustworthy person from among Muslims may take charge of the affairs of his estate, taking care to do what is good and beneficial, especially in matters which may not be delayed. It is the judge’s duty to later on endorse these dispositions, and he may not invalidate them.

Probating a Will

The schools concur that a will concerning property or its benefit is proved by the testimony of two males, or a male along with two female, witnesses from among ‘adil Muslims, in accordance with the verse:

وَاسْتَشْهِدُوا شَهِيدَيْنِ مِنْ رِجَالِكُمْ فَإِنْ لَمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَامْرَأَتَانِ مِمَّنْ تَرْضَوْنَ مِنْ الشُّهَدَاءِ

And call in to two witnesses from among your men, or if they are not two men, then one man and two women, such witnesses as you approve of… (2:282)

The schools differ concerning the acceptability of the testimony of ‘adil witness from Ahl al-Kitab in the particular case of proving a will. The Imamiyyah and the Hanbalis observe: The testimony of Ahl al-Kitab is valid in the case of will, only during a journey when none else is available, in accordance with the verse:

يَا أَيُّهَا الَّذِينَ آمَنُوا شَهَادَةُ بَيْنِكُمْ إِذَا حَضَرَ أَحَدَكُمْ الْمَوْتُ حِينَ الْوَصِيَّةِ اثْنَانِ ذَوَا عَدْلٍ مِنْكُمْ أَوْ آخَرَانِ مِنْ غَيْرِكُمْ إِنْ أَنْتُمْ ضَرَبْتُمْ فِي الأَرْضِ فَأَصَابَتْكُمْ مُصِيبَةُ الْمَوْتِ

O believers, the testimony between you when any of you is visited by death, at the time of making a will, shall be two ‘adil men from among you, or two others from another folk, if you are journeying in the land and the affliction of death befalls you. (5:106)

The Hanafi, the Shafi’i and the Maliki schools observe: The testimony of a non-Muslim will not be accepted in any condition. neither in case of a will nor in anything else. They add: The meaning of the words: مِنْ غَيْرِكُمْ in the verse is, ‘from among those who are not your relatives’, and not ‘from those who do not belong to your religion’. (al-Mughni, vol.9, ‘bab al-shahadah’)

The Imami, the Hanbali and the Shafi'i schools say: Ownership of a property is proved by the evidence of one witness along with an oath. The Hanafis observe: A judgment will not be given on the basis of a single witness and an oath. (al-Mughni, vol.9, ‘bab al-shahadah’, and al-Jawahir, ‘bab al-shahadah’)

The Imamiyyah state: The right to one-fourth of a bequeathed property is proved by the evidence of a single woman; to a half by the evidence of two women: to three-fourths by the evidence of three women, and to the whole property by four women witnesses, 'adalah being essential in all the cases. This opinion is particular to the Imamiyyah to the exclusion of other schools, because of authentic traditions from the Ahl al-Bayt ('a) in this regard.

This was as regards the bequest of property or its benefit. Concerning the nomination of an executor, it is not proved except by the evidence of two male ‘adil Muslims. Hence, as per consensus, the evidence of Ahl al-Kitab or women, both individually and jointly with men, or a single male witness along with an oath, will not be accepted.

- 1. Al-Jawahir, ‘bab al-wasiyyah’.

- 2. A dhimmi is a person who pays jizyah to Muslims, while a harbi, according to the Imamiyyah, is one who does not pay jizyah although he may not be at war with them. According to the other schools, harbi is one who takes up arms and attacks travellers on public highways (Ibn Rushd’s al-Bidayah wa al-nihayah, vol.2, ‘bab al-harabah’). Al-Shahid al-Thani in his book al-Masalik, ‘bab al-wasiyyah’, has said: A bequest in favour of anyone who does not fight us due to our religion, irrespective of his being dhimmi or harbi, is valid, in accordance with the verse: لاَ يَنْهَاكُمْ اللَّهُ (60:8,9), as well as the tradition from al-Imam al-Sadiq (A): Give the bequest to the legatee even if he is a Jew or Christian, for surely God has said:
فَمَنْ بَدَّلَهُ بَعْدَمَا سَمِعَهُ فَإِنَّمَا إِثْمُهُ عَلَى الَّذِينَ يُبَدِّلُونَهُ

Then he who alters after having heard it, its sin is on those who have altered it. (2:181)
Here no difference has been made between a harbi and others.

- 3. From among the Imami fuqaha’, al-Shaykh Ahmad Kashif al-Ghita’ favours the Maliki view that it is valid to bequeath in favour of a person not in existence; he remarks in Wasilat al-najat, ‘bab al-wasiyyah’: “There is no hindrance in a testator’s making the ownership of a bequest conditional to the coming into existence of the legatee. Thus the legatee will not own it unless after his coming into being, as is the rule in waqf.” But the author has given this view on the condition that there be no ijma’ opposing it.

- 4. The meaning of the word ‘property’ (al-milk) differs in relation to the owner. Thus, in relation to a person, it means the power and right of disposal over it in any manner the owner desires; in relation to a mosque, it implies the allocation of its income to its use. Consequently, the observation that ‘a mosque or something similar has a legal personality capable of holding property and transferring it,’ is meaningless.

- 5. The Imamiyyah consider it necessary that if the legatee rejects the bequest during the life of the testator and dies later, and after him the testator also dies, the right of accepting the will is transferred to the heirs of the legatee, because, they say: Accepting or rejecting a will has no effect during the life of the testator.

- 6. It is stated in al-Shara’i’, al-Masalik and al-Jawahir that if a testator uses vague words in his will for which the law has no interpretation, his heirs will be referred to to determine their meaning. Thus, if he says: “Give him a share from my property,” or “a part” or “a portion of it,” or “a little of it”, or “much of it,” or similar terms which do not denote any fixed quantity either lexically, or legally or customarily, the heirs will give anything considered as having value.

- 7. The four Sunni schools concur on these dispositions being enforceable from a third of the estate, and the Imamiyyah differ among themselves. Most of their earlier fuqaha’ considered it enforceable from the original estate, while most of the latter legists from a third. Those among them who favour its enforceability from a third are al-‘Allamah al-Hilli, al-Shahid al-Awwal, al-Shahid al-Thani and the authors of al-Jawahir and al-Shara’i, in accordance with the tradition narrated by Abu Basir from Imam al-Sadiq (A):
للرجل عند موته ثلث ماله

A person is entitled to a third of his wealth at the time of his death,
as well as an authentic tradition narrated by Ibn Yaqtin:

للرجل عند موته الثلث والثلث كثير

A person is entitled to a third at the time of his death, and a third is a lot.
These traditions do not differentiate between a bequest and dispositions. According to a tradition narrated by ‘Ali ibn ‘Uqabah concerning a person freeing his slave, the slave will be freed to the extent of one-third.
Had the Imam said: بعد موته (after his death) instead of عند موته (at the time of his death), it would have been appropriate to take his words to mean a will.

- 8. Often al-‘Allamah al-Hilli quotes al-Mughni verbatim et literatim, and relies on it to explain the views of the schools. It has become clear to me as a result of enquiry and research that scientific cooperation between Sunnis and Shi’is was much greater in the past than it is today. Al-‘Allamah al-Hilli quotes in al-Tadhkirah the opinions of the four schools, the Zahiriyyah, as well as other Sunni schools, and Zayn al-Din al-‘Amili, known as al-Shahid al-Thani, used to teach fiqh in accordance with five schools in Ba’labak (Lebanon) in 953/1546, apart from teaching in Damascus and at al-Azhar. Similarly, al-Shaykh ‘Ali ibn ‘Abd al-Al, known as al-Muhaqqiq al-Thani (d. 940/1533), taught in Syria and al-Azhar. If this proves anything, it proves the unbiased nature of the Imami ‘ulama’ and their pursuit of knowledge for knowledge’s sake, in accordance with the tradition:
الحكمة ضالة المؤمن يأخذها أنّى وجدها

Wisdom is the lost property of a believer; he acquires it from wherever he finds it.
Similarly, it proves at the same time the unity of Islamic jurisprudence (usul al-fiqh) and its sources amongst all the schools.

- 9. Al-Sayyid Kazim al-Yazdi, Mulhaq Hashiyat al-Makasib.

- 10. The Imamiyyah legists differ as to whether ‘adalah is a condition for a wasi. The prevalent (mashhur) view among them is that ‘adalah is necessary, while researchers consider his being trustworthy and reliable as sufficient. There is a third opinion which says that he should not be a known fasiq. The second view is correct, keeping in mind the general nature of the proofs, which include ‘adil and non-‘adil persons, as well as the exclusion by these proofs of an untrustworthy person because his dispositions do not fulfill the testator’s purpose and harm the legally disable beneficiaries.

9. Inheritance

Rules Concerning the Heritage

The Heritage

The heritage (al-tarikah) comprises the following things:

1. That which the deceased owned before his death in the form of:

a) tangible property,

b) debts,

c) any pecuniary right, e.g. the right consequent to tahjir (demarcation of ownerless vacant land with an intention of cultivating it), where he intends to cultivate ownerless vacant land and demarcates it by constructing a wall or something of the kind, thus acquiring a right to cultivate it in preference to others; or an option (haqq al-khayar) in a contract of sale; or the right of pre-emption; or the right of retaliation (qisas ) for murder or injury, where he is a guardian of the victim (e.g. if a person kills his son and then dies before retaliation, causing the right of qisas to change into a pecuniary right payable from the murderer's estate, exactly like a debt).

2. That which the decedent comes to own at his death, e.g. compensation for unintentional homicide (al-qatl al-khata’), where the heirs opt for compensation instead of qisas. The rule applicable to this compensation is the one applicable to all other properties, and all those entitled to inherit, including husband and wife, will inherit from it.1

3. That which the decedent comes to own after his death, e.g. an animal caught in a net that he had placed in his life, and similarly where he is a debtor and his creditor relinquishes the debt after his death or someone volunteers to pay it for him. Also, if an offender mutilates his body after his death and amputates his hand or leg, compensation will be taken from him. All these will be included in the heritage.2

Deductions from the Heritage

Different types of deductions are made from the heritage. Some of them are deducted from only a third of the heritage, and discussion regarding them has preceded in the chapter on wills. Some deductions are made from the whole heritage, and they too are of different types. Hence, if the heritage suffices, they will be completely met, and what remains of it after these deductions and the execution of the will, will be for the heirs. All the schools concur on this.

If the tarikah falls short of meeting these deductions, the more important among them will be given precedence over those of lesser importance. If anything remains after the preferred deductions are made, the next in order will follow; otherwise only the deductions of higher preference will be covered. The schools differ regarding the order of preference of these deductions.

The lmamiyyah state: The first deduction before any other thing, is to meet the wajib funeral expenses, such as expenses of ablution (al-ghusl), shrouding, carrying the body and digging the grave, if required, irrespective of whether the decedent has made a will to this effect or not. Therefore, funeral expenses, according to them, are prior to debts, irrespective of the debts being related to the fulfilment of religious duties (haqq Allah) or to creditors (haqq al-nas). They bring proof from the tradition narrated by al-Sakuni from al-'Imam Ja'far al-Sadiq ('a):

أَوَّلُ شَيْءٍ يُبْدَأُ بِهِ مِنْ المَالِ الكفن، ثُمَّ الدَّينُ، ثُمَّ الوَصِيَّةُ، ثُمَّ المِيرَاثُ

The first thing which is deducted from the decedent's estate is the shroud (funeral expenses),

then debt, then the will, and then the inheritance.

The Ima miyyah fuqaha' differ among themselves regarding the case where a creditor has a right over the estate itself, such as where the decedent dies after mortgaging his property with a pledgee, the property being all that he owned. Here, a group of fuqaha' give the funeral expenses preference over the right of the pledgee, because of the general nature of the traditions which include the above-mentioned tradition of al-Sakuni in which no difference has been made between pledged and unpledged properties.

Other fuqaha' give precedence to the right of the pledgee because the owner of the pledged property is forbidden by the Shari'ah to exercise his rights of ownership, and that which is forbidden by the Shari'ah is like that which is forbidden by reason.3

After meeting the funeral expenses, the repayment of debts will start, irrespective of their being haqq Allah or haqq al-nas, such as unpaid khums and zakat, pecuniary atonements (kaffarat), the returning of the mazalim,4 the unperformed obligatory Hajj, and other similar religious and non-religious liabilities. All these debts are in a single category.

Therefore, if all of them cannot be completely met from the estate, they will be covered pro rata like the liabilities of an insolvent person,5 allowing no exception to this except khums and zakat, provided these relate to the actual items of t heir incidence present, in which case the two will be preferred over other debts. But if these two are due (without the items of incidence being present), they will be treated as all other debts.

The four Sunni schools, along with the Imamiyyah, concur that funeral expenses are preferred over the debts payable from the estate before death. The four schools then differ among themselves in giving precedence to funeral expenses over debts relating to the heritage, such as an article which the owner pledged before his death. The Hanafi, the Shafi'I and the Maliki schools say: Those claims which are related to specific parts of the heritage will be given precedence over funeral expenses (hashiyat al-Bajuri ‘ala Sharh Ibn Qasim, vol. 1, fasl al-mayyit, and Abu Zuhra’s al-Mirath ‘inda al-Ja’fariyyah, p. 40, 1955).

The Hanbalis observe: Funeral expenses will be preferred over all other claims and debts including a pledge, penal damages, etc. (al-Tanqih fi fiqh al-Hanabilah, p. 71, al-Matba'at al-Salafiyyah).

In short, according to all the schools, the funeral expenses have precedence over debts unrelated to specific items of the heritage, and the Hanafi, the Shafi'I and the Maliki schools give priority to debts related to specific items of the heritage over funeral expenses, while the Hanbali school gives priority to funeral expenses in this case. Some Imami legists favour the view of the three schools, and others concur with the Hanbalis.

Heirs and the Decedent's Heritage

The schools concur that the heritage devolves on the heirs immediately after the death if there is no debt or will involved. They also concur that the remainder of the heritage exceeding debts and bequests stands transferred to the heirs. The schools differ whether that part of the heritage covered by debts and bequests will be considered transferred to the heirs or not.

The Hanafis state: The part which equals the value of debt will not be included in the property of the heirs. Consequently, if the complete estate is covered by debt, the heirs will not own anything from it. But they have a right to free the estate from the creditors by paying them their claim on the estate. If the estate is not totally covered by debt, the heirs will own the remainder.

The Shafi'is and the majority of Hanbali legists say: The heirs will come to own the indebted part of the estate, irrespective of whether the debt covers the whole estate or only a part of it. However, the debt will relate to the whole estate and the estate will be liable for it. (Abu Zuhrah, al-Mirath ‘inda al-Ja’fariyyah).

The Imamiyyah differ among themselves on the issue; the majority of them hold the opinion that the estate will be transferred to the heirs whether totally covered by debts or not. The debts will be linked to it in one of the various ways, like a claim of pledge, or like the claim of damages resulting from the crime of a slave, or linked directly in a way not resembling any of these two ways. In any case, a debt will not hinder the actual act of inheritance, although it hinders the right of disposal in regard to that which is covered by the debt. This opinion is close to the Shafi’i view. (al-Jawahir and al-Masalik, bab al-mirath)

The result of the difference of opinion appears in the increase in the estate which takes place between the time of death and the time of repayment of the debt. According to the opinion of the Shafi'is, the Hanbalis and most of the Imami legists, the increase belongs to the heirs and they will dispose it without any hindrance from the creditors and others. But according to the Hanafi view, the increase will be subject to the estate, being linked to the debts payable from it.

Causes of Inheritance and Impediments

Causes of Inheritance

There are three causes of inheritance:

a. blood relationship (al-qarabah),

b. marriage concluded by a valid contract, and

c. al-wila '.

We can bring these three causes under two heads: consanguinity (nasab) and affinity (sabab). By nasab is meant blood relationship and sabab includes both marriage and al-wila '. Al-wila’ is a bond existing between two persons which creates between them a relationship similar to nasab. Hence a person manumitting a slave becomes his mawla and inherits from the latter if he has no other heir. We will not discuss here al-wila’ with its different meanings and forms because it has no practical application today, and will discuss only the two other causes.

Blood relationship (al-qarabah) is established between two persons through legitimate birth when one of them is a direct descendant of the other (such as fathers how highsoever, and sons how lowsoever), or when both of them are descendants of a third person (such as brothers and maternal and paternal uncles). Legitimate birth materializes through a valid marriage as well as through 'intercourse by mistake.' But the marital bond will not materialize except through a valid marriage between man and woman. There is no difference of opinion regarding mutual inheritance between husband and wife. The schools, however, differ concerning the right of inheritance of certain relatives; the Shafi’i and the Maliki schools deny them such a right and consider them exactly like strangers.

These relatives are: Daughter's children, sister's children, daughters of brothers, children of uterine brothers, all kinds of paternal aunts, uterine paternal uncle, maternal uncles and aunts, daughters of paternal uncles and the maternal grandfather. Therefore, if a person dies and has no relatives except one of those mentioned the heritage escheats to the public treasury (bayt al-mal) and they will not receive anything, according to the Shafi’i and Maliki schools, because they are neither among the sharers (dhawu al-furud) nor among the residuaries (‘asabat). (al-Mughni, 3rd ed. vol. 6, p. 229)

The Hanafi and the Hanbali schools consider them capable of inheriting in the particular situation where there are no sharers and residuaries.

The Imamiyyah consider them capable of inheriting without this condition. Details will follow.

Impediments to Inheritance

The schools concur that there are three obstacles to inheritance:

a. difference of religion,

b. murder,

c. slavery.

Ignoring slavery, we will discuss the other two causes.

Difference of Religion

There is consensus that a non-Muslim will not inherit from a Muslim.6 The schools differ regarding a Muslim inheriting from a non-Muslim. 'He inherits,' say the Imamiyyah; 'He does not,' say the other four schools.

If one of the decedent's sons or relatives who is a non-Muslim becomes a Muslim after his death and after the distribution of the heritage between the heirs, he is not entitled to inherit by consensus. The schools differ as to whether he inherits if he becomes a Muslim after the death but before the distribution of the heritage. He inherits according to the Imamiyyah and the Hanbalis, and not, according to the Shafi’i, the Maliki and the Hanafi schools.

The Imamiyyah state: If there is a single Muslim heir, he will take the whole heritage and the conversion of another to Islam will not entitle him to inheritance.

An Apostate (Murtadd)

A murtadd from Islam does not inherit in the opinion of the four Sunni schools, irrespective of his apostasy being 'an fitrah or 'an millah,7 except if he returns and repents before the distribution of the heritage. (al-Mughni, vol. 6)

The Imamiyyah observe: A murtadd ‘an fitrah, if a male, will be sentenced to death without being asked to repent, and his wife will observe the 'iddah of death from the time of his apostasy, and his estate will be distributed even if he is not executed. His repentance will also not be accepted concerning the dissolution of his marriage, or the distribution of his estate, or the wujub of his execution, though it will be accepted in fact and by God, as well as in regard to other issues such as the ritual cleanliness of his body and the validity of his acts of worship (‘ibadat). Similarly, he may own after his repentance new properties acquired through work, trade, or inheritance.

A murtadd 'an millah will be asked to repent. If he does so, he will have all the rights and obligations of Muslims. If he does not repent, he will be executed and his wife will observe the 'iddah of divorce from the time of his apostasy. Then if he repents while she is undergoing 'iddah, she will return to him and his property will not be distributed unless he dies or is killed.

A woman will not be sentenced to death irrespective of her apostasy being 'an fitrah or 'an millah. But she will be imprisoned and beaten at the times of salat till she repents or dies. Her heritage will be distributed only after her death. (al-Sayyid Aba al-Hasan's Wasilat al-najat and al-Shaykh Ahmad Kashif al-Ghita’s Safinat al-najat, bab al- 'irth)

Inheritance of Followers of Other Religions

The Maliki and the Hanbali schools say: Followers of different religions will not inherit from each other. Hence a Jew will not inherit a Christian and vice versa, and similarly the followers of other religions.

The Imami, the Hanafi and the Shafi’i schools state: They will inherit from one another because they are a single religious group, considering that all of them are non-Muslims. But the Imamiyyah lay down a condition in the case of a non-Muslim inheriting from another of his kind, that there be no existing Muslim heir. Therefore, if such an heir is present, even though distant, his presence will prevent a non -Muslim heir, even if he is closely related, from inheriting. This condition is not relevant to the other four schools, because according to them, as mentioned earlier, a Muslim does not inherit from a non-Muslim . (Ghayat al-muntaha, vol. 2, al-Shi'rani's Mizan, al-Jawahir and al-Masalik)

The Ghulat

Muslims are unanimous in holding that the Ghulat are polytheists (mushrikun) and do not belong to Islam and Muslims in any manner. The lmamiyyah have been especially severe concerning the issue of the Ghulat because a large number of their Sunni brothers have unjustly attributed to them the deviations of the Ghulat. The Imami 'ulama' have unequivocally mentioned in their books on doctrine and law that the Ghulat are kafir. Accordingly, al-Shaykh al-Mufid in Sharh ‘Aqa’id al-Saduq (p. 63, 1371 H.) says:

The Ghulat feign to follow Islam. They are those who attribute divinity and prophethood to Amir al-Mu 'minin 'Ali and the Imams of his descent, and exceed all limits and deviate from the mean concerning their excellence in the religion and the world. They are misguided, unbelievers, whom Amir al-Mu'minin ordered to be killed and burnt, and the Imams judged them as unbelievers and apostates from Islam.

The Imami 'ulama' mention them in their legal works in the chapter on taharah (purification), and consider them ritually unclean. Their mention also occurs in the chapter on marriage, where it is observed that the marriage of Muslim women with them, as well as marrying their women, is haram, although the 'ulama ' permit marriage with women of Ahl al-Kitab. The mention of Ghulat is also made in the chapter on jihad, where they are considered polytheists in a state of war. In the chapter on inheritance, the 'ulama' prohibit their inheriting from Muslims.8

One Who Denies an Essential of the Faith

There is consensus among the schools that a person who denies any of the established and known doctrines of the faith and considers a haram as halal or vice versa, making that his creed, goes out of the pale of Islam and becomes an infidel. To this category also belongs one who attributes kufr to a Muslim.

It is worthwhile here to point out two issues that have been dealt in detail by the highly learned and leading Imami scholar Aqa Rida al-Hamadani in Misbah al-faqih, vol. I.

1. If a person appears to follow Islam and pronounces the Shahadatan, though we do not know whether he does so hypocritically, without having faith in it, or pronounces them with veritable faith, there is no difference of opinion in judging him a Muslim. But if we have knowledge of his falsity and know that he has no faith in God and the Prophet (S) but only presents himself as a Muslim hypocritically with a certain purpose in view, will we consider him a Muslim?

The gist of the Shaykh 's opinion is that this hypocrite has a reality and an appearance. As to the reality he is a non-Muslim, though his appearance presents him as a Muslim. It is our duty to leave his reality to God Almighty's judgement, and there is no doubt that God will deal with him as a non-Muslim, because it is presumed that he is such in reality. But we, Muslims, will accept his appearance and associate with him as a Muslim regarding marriage and inheritance, because we have been ordered to do so. It is stated in a tradition:

مَنْ قَالَ لَا إلَهَ إلاَّ اللَّه حُقِنَ دَمُهُ وَمَالُهُ

He who says ‘la‘ilaha ilia Allah,’ his life and property are secure.

This implies that he will be treated as a Muslim, irrespective of any doubt on our part and our knowledge of his verity or falsity. This is also confirmed by the Prophet's treatment of the hypocrites, whom he treated in the same manner in which he treated other Muslims, though he knew of their hypocrisy (nifaq).

2. The secret behind the consensus of Muslims regarding the kufr of a person denying an established rule is that this denial as such necessitates the denial of the Prophet's prophethood. It follows from this that a person making such a denial, on becoming aware that his rejection amounts to rejecting the prophethood and the messengerhood of the Prophet (S), will be doubtlessly considered a non-Muslim. But if he is not aware of it -- either because of ignorance, or his belief that his denial does not necessitate the denial of prophethood -- will he be considered a non-Muslim?

The summary of the Shaykh's reply is that an ignorant person can be viewed in different situations. At times his ignorance is the result of his absorption in sin and absence of attention to what is haram (like a person who has indulged constantly in fornication from the first day to his present old age, and this continuity has developed in him the belief that his act is halal, not haram); such a person is definitely a kafir.

At times his ignorance is due to his following a person whom it is not valid to follow. Such a person is also a non-Muslim even if he believes that his denial does not lead to denying the Prophet's messengerhood.9

It may be that none of the two above-mentioned causes are the result of his ignorance; rather, his ignorance may be the result of his lack of attention to the station of prophethood, so that if he is informed about it he would desist from his denial. Such a person is doubtlessly a Muslim because he resembles one who disputes regarding a certain thing with the Prophet (S) while not recognizing him, but when he comes to recognize that he is the Prophet (S), he refrains and is penitent.

There are other cases mentioned by the author of Misbah al-faqih which we leave for reasons of space. Those seeking details should refer to the first volume of the book.

Homicide

The schools concur that homicide, when intentional and without legal authority, impedes inheritance. This is based on the tradition:

لَا مِيرَاثَ لِلقَاتِلِ

There is no (share in) inheritance for a murderer.

Moreover, since the murderer's act expedites inheritance, his intention will be frustrated. Apart from this, the schools differ.

The Imamiyyah observe: He who kills his relative as qisas or in self-defence or on the orders of a just judge, or for similar other reasons justified by the Shari'ah, in these instances homicide is no obstacle to inheriting. Also, unintentional homicide (alqatl al-khata’) is no hindrance.10

The author of al-Jawahir states: The intentional act of a child and a lunatic is considered khata’ (mistake). Similarly khata’ includes a quasi-intentional act (shibh al-'amd). An instance of shibh al-'amd is where a father beats his child with an intention of correcting him and the child dies as a result of the beating. Al-Sayyid Aba al-Hasan al-‘Isfahani writes in al-Wasilah: "Some of the causes which lead to death--like digging a well on a road, if a relative falls in it--the person having dug the well will inherit him, though he will be liable to pay the compensation (diyah).” Accordingly, there is no hindrance to the concurrence of the liability to diyah and inheritance.

Each one of the four Sunni imams has a separate opinion in this case. The opinion of Imam Malik concurs with the Imamiyyah. The opinion of al-'Imam al-Shafi'i is that unintentional homicide is an obstacle to inheritance, just like intentional murder; the same is the case where the murderer is a child or a lunatic.

The opinion of Imam Ahmad is that a homicide that calls for punishment, even if of a monetary kind, impedes inheritance. This excludes lawful killing, such as killing for qisas, or in self-defence, or in war, the killing of a rebel (baghi) at the hands of an 'adil person -- in all these cases he will inherit.

The opinion of Imam Abu Hanifah is that a homicide which hinders inheritance is one which necessitates qisas or diya or kaffarah (atonement). This includes al-qatl al-khata’, but not al-qatl bi al-tasbib (where the accused is an indirect cause of homicide) or homicide by a lunatic or a minor. (al-Mughni, vol. 6, and Abu Zuhrah's Mirath al-Ja'fariyyah)

Distribution of the Heritage

As pointed out earlier, inheritance results due to marriage or consanguinity, and there is no difference of opinion that the husband or wife has a share with all other heirs, the husband being entitled to one-fourth when there are descendants and one-half in their absence, and the wife to one-eighth in the presence of descendants and one-fourth in their absence.

The schools differ concerning a daughter's off spring, whether he/she is in the category of descendants whose presence is capable of lowering the share of the spouse from its higher to its lower limit or if his/her presence and absence has no effect. Details of this will come while discussing the inheritance of spouses.

There is again no difference of opinion that the distribution of the heritage begins with ashab al-furud (the 'sharers,' whose shares have been determined by the Qur'an) and that there are six kinds of these shares. But the schools differ regarding the number of sharers entitled to these shares and regarding the residuaries (those entitled to the remainder after the sharers have received their shares).

The schools also differ about the capacity to inherit of: daughter's children; uterine paternal uncles and aunts; and maternal uncles, aunts and grandfather. We mentioned earlier that these heirs fall in the category of distant kindred in the classification adopted by the four Sunni schools, and the rules applicable to them differ from those applicable to the sharers and residuaries.

The Shares and Sharers

A 'share' (al-fard) is a fixed portion (of the heritage) determined by the Qur'an. According to consensus there are six such shares: 1/2, 1/4. 1/8, 1/3, 2/3 and 1/6. Some have summarized it by saying: "1/3 and 1/4, and the double and half of each."

1/2 is the share of the only daughter if there is no son sharing with her, and according to the four Sunni schools the son's daughter is like the daughter, while according to the Imamiyyah she takes the place of her father. Half is also given to the only sister, either full or half on the father's side, if there is no brother sharing with her. A husband gets half if the wife has no offspring to inherit her.

1/4 is the husband's share if the wife has a descendant and the wife's if the husband has no descendant.

1/8 is the share of a wife if the husband has a descendant.

2/3 is the combined share of two or more daughters in the absence of male children, and of two or more sisters, full or consanguine, if there is no brother sharing with them.

1/3 is the share of the mother if the decedent has no male child, or brothers whose presence, as per the forthcoming details, prevents her from inheriting more than one-sixth. Two or more uterine brothers and sisters also inherit one-third.

1/6 is the share of the father and the mother in the presence of a child. The mother also gets one-sixth if the decedent has brothers. The same is the share of a single uterine brother or sister. The inheriting of one-sixth as sharers by the above three enjoys concurrence. The four Sunni schools add to these sharers entitled to one-sixth, one or more son's daughters along with the daughter of the decedent. Hence if the decedent has a daughter and a son's daughter, the former will take half and the latter one-sixth.

But if the decedent has two or more daughters and a son's daughter, the latter will be prevented from inheriting unless she has a male counterpart of her class, such as when she has a brother or, lower in order, her brother's son, i.e. the great grandson of the deceased. One-sixth is also given to the paternal grandfather in the absence of the father.

A grandmother, just like a mother, inherits a sixth if she is a paternal or maternal grandmother or mother of the paternal grandfather. Thus if she is the mother of the decedent's mother's father, she will not inherit. If two parallel grandmothers, such as the mother's mother and the father's mother are present together, the share of one-sixth will be equally divided between them.11

Some of the six different shares coexist with some others. Hence, a half can exist with a half (e.g. husband and sister, each receiving a half), with one-fourth (e.g. husband and daughter, she receiving a half and he one-fourth), with one-eighth (e.g. wife and daughter, the former getting an eighth and the latter a half), with one-third (e.g. husband and mother, where her share is not reduced by a brother, he receiving a half and she a third), and with one-sixth, (e.g. husband and the only uterine brother or sister, the former receiving a half and the latter one-sixth).

One-fourth can coexist with two-thirds (e.g. husband and two daughters, he receiving a fourth and they two-thirds), with one-third (e.g. wife and two or more uterine brothers or sisters, she receiving one-fourth and they one-third) and also with one-sixth, (e.g. wife and a single uterine brother or sister, the former receiving one-fourth and the latter one-sixth).

One-eighth can coexist with two-thirds (e.g. wife and two daughters, she receiving one-eighth and they two-thirds) and with one-sixth (e.g. wife and either parent in the presence of a child).

Two-thirds can coexist with one-third (e.g. two or more consanguine sisters along with uterine brothers) and with one-sixth (e.g. two daughters and either parent).

One-sixth can coexist with itself (e.g. parents in the presence of a child).

Those shares which do not coexist are: one-fourth and one-eighth, one-eighth and one-third, and one-third and one-sixth.

The Residuaries (al-'Asbat)

According to the four Sunni schools, there are three types of nasabi residuaries:12 a residuary by himself ('asabah bi nafsiha), a residuary through another ('asabah bi ghayriha), and a residuary along with another ('a abah ma'a ghayriha).

A 'residuary by himself' includes all males between whom and the decedent there is no intervening woman, and the meaning of being such a residuary is that he is independent of others (in his right to inherit as a residuary), and that he is a residuary in all cases and situations. A 'residuary through another' and 'residuary along with another,' are residuaries in certain cases without being so in others, as will become clear later.

The 'residuaries by themselves' are the closest of residuaries and inherit in the following order:

• the son,

• then the son's son, how lowsoever; he takes the place of his father,

• then the father,

• then the paternal grandfather, how highsoever;

• then the full brother;

• then the half-brother by father;

• then the son of the full brother;

• then the son of the half-brother by father;

• then the full paternal uncle,

• then the consanguine paternal uncle (who is father's half-brother by grandfather),

• then the son of the full paternal uncle,

• then the son of the consanguine paternal uncle.

If some of them exist along with others, the son will supersede the father, in the sense that the father will take his fard (share) --which is one-sixth-- and the son will take the remainder as a residuary.

According to the four Sunni schools, the son's son will similarly supersede the father, and the father will supersede the paternal grandfather. They differ regarding the paternal grandfather as to whether he will supersede the brothers in inheritance or if they inherit jointly with him, so that all of them are considered as belonging to the same class.

Abu Hanifa observes: The grandfather will supersede the brothers and they will not inherit anything along with him. The Imami, the Shafi'i and the Maliki schools state: They will inherit with him because they belong to his class.

Among the residuaries, those related from bot h sides will supersede those related from only one side. Hence a full brother will supersede a consanguine brother and the full brother's son will supersede a consanguine brother's son. Similarly, in the case of paternal uncles the degree of their nearness (to the decedent) is taken into consideration, and the nearest is preferred. Therefore, the decedent's paternal uncle supersedes his father's paternal uncle, and he in turn will supersede the grandfather's paternal uncle.

The following four female relatives are considered 'residuaries through another ':

1. daughter or daughters,

2. son's daughter or daughters,

3. full sister or sisters,

4. consanguine sister or sisters.

It is known that all the above-mentioned inherit as sharers in the absence of a brother.13 One of them is entitled to a half, and if more, to two-thirds, and if they have a brother they inherit as residuaries --according to the four Sunni schools-- but not if they are alone, and will share the heritage with him, the male receiving twice the share of females.

As regards 'residuaries along with another,' they are full or consanguine sister or sisters that inherit along with a daughter or son's daughter. Therefore, a sister or sisters inherit as 'sharers' if there is no daughter or son's daughter inheriting along with them, and inherit as residuaries with a daughter or son's daughter. Hence the daughter or the son's daughter will take her share and the full or consanguine sister or sisters will take the remainder, thereby becoming residuaries along with the daughter.

After this explanation it becomes clear that a full or consanguine sister inherits in three different ways. She is a sharer if she has no brother and the decedent no daughter, a 'residuary through another' if she has a brother, and a 'residuary along with another' if the decedent has a daughter. The same applies in the case of two or more sisters. It also becomes clear that full and consanguine paternal uncles will not share in the heritage along with the daughter except in the absence of full or consanguine brothers and sisters.

The four Sunni schools concur that if there is a single residuary without any sharers, he will inherit the whole heritage, and in the presence of a sharer he will take the remainder after the sharer has taken his share. If there is no residuary, according to the Maliki and the Shafi'i schools, the excess will escheat to the bayt al-mal, and according to the Hanafi and the Hanbali schools it goes to the sharers by way of 'return' (radd), and the estate will not escheat to the bayt al-mal in the absence of sharers, residuaries and distant kindred.

The Residuaries From the Imami Viewpoint

The Imamiyyah do not recognize these three different kinds of residuaries and limit the heirs to 'sharers' and 'residuaries' without differentiating between male and female residuaries. Hence, a single son is entitled to the whole estate; a single daughter and a single sister too are similarly entitled. They classify the heirs, both males and females, into three categories:

1. Parents and children, how lowsoever.

2. Brothers and sisters (and their children), how lowsoever, and grandparents, both paternal and maternal, how highsoever.

3. Paternal and maternal uncles and aunts and their children.14

Whenever there exists a male or a female heir in the higher category, it will prevent all others belonging to the lower category from inheriting, whereas in the opinion of all the other schools these different categories may combine and inherit together, and at times all the three categories may inherit together, such as a mother along with a uterine sister and a full paternal uncle, in which case the mother receives one-third, the sister one-sixth, and the uncle the remainder.

Al-Ta'ib

The six kinds of shares determined in the Qur'an at times equal the whole estate, such as two daughters along with parents (2/3 + 1/6 + 1/6). Here the question of 'awl and ta'sib does not arise, because the two daughters will take two-thirds and the parents one-third.

At times the total of the shares does not exhaust the whole estate, such as a single daughter, whose share is half, or two daughters, whose share is two-thirds. This (in Sunni schools) results in ta'sib.

When the total shares exceed unity --such as when the husband, the parents and the daughter inherit together, the share of the husband, the daughter and the parents being one-fourth, one-half and one-third respectively-- the estate cannot cover all the three shares together. This results in 'awl. 'Awl will be discussed in the second chapter.

As to ta'sib, it has been defined here as the sharing of inheritance by the residuaries along with the closely-related sharers (such as where the decedent has two or more daughters and no son, or where he does not have any children, but has one or more sisters, no brother, and a paternal uncle).

Here, the Sunni schools regard the brother of the decedent as an heir along with the daughter or daughters, and he receives one-half with the one daughter, and one-third if there are two or more daughters. Similarly, they regard the paternal uncle to be an heir along with a sister or sisters.

The Imamiyyah state: Ta’sib is void, and it is wajib that that which remains after the sharers have received their shares be returned to the closely-related sharers. Hence, (in the above examples) the whole estate, according to them, will be inherited by the daughter or daughters and the brother will receive nothing, and if the deceased has no child at all, but has a sister or sisters, they will inherit the whole estate to the exclusion of the paternal uncle, because a sister is nearer to the decedent than him and the 'nearer excludes the remote.'

This difference between the Sunni schools and the Imamiyyah originates from the tradition of Tawus. The Sunni schools accept this tradition while the Imamiyyah reject it. The tradition states:

أُلْحِقوا الفَرَائِضَ بِأَهْلِهَا، فَمَا بَقِيَ فَلِأُولَّى عَصَبة ذَكَرٍ

Give the sharers their respective shares, and of what remains,

the first in order is a male relative.

It has also been narrated in another form:

فما بقي فَهُوَ لِرَجُلِ ذَكَرٍ

And what remains is for the male relative.

Hence, the daughter being a sharer is entitled to half the estate, and the brothers being the nearest male relatives of the decedent after her will be given the remaining half. Similarly, if the decedent has no children at all, and has a sister without any brother, the sister will take half as a sharer and the other half will be inherited by the decedent's paternal uncle, because he is the decedent's nearest male relative after his sister.

The Imamiyyah do not endorse the veracity of Tawus's tradition and reject its attribution to the Prophet (S), because, according to them, Tawus is an unreliable (da’if) narrator. Had they endorsed this tradition they would have concurred with the Sunni schools, in the same manner as the Sunni schools would have concurred with them if they had rejected this tradition. After rejecting this tradition's attribution to the Prophet (S), the Imamiyyah negate ta'sib on the basis of the Qur'anic verse:

لرِّجَالِ نَصِيبٌ مِّمَّا تَرَكَ الْوَالِدَانِ وَالْأَقْرَبُونَ وَلِلنِّسَاءِ نَصِيبٌ مِّمَّا تَرَكَ

الْوَالِدَانِ وَالْأَقْرَبُونَ مِمَّا قَلَّ مِنْهُ أَوْ كَثُرَ ۚ نَصِيبًا مَّفْرُوضًا

Men are entitled to a share of what the parents and near relatives leave, and women are entitled to a share of what the parents and near relatives leave,

whether it is little or more, a determined share. (4:7)

This verse proves an equality between men and women concerning the right of inheritance, because it speaks about the women's share exactly as it speaks about men's, whereas those who accept ta’sib differentiate between male and female relatives and give the males the right to inherit to the exclusion of females where the decedent has a daughter, a brother's son and a brother's daughter.

They give one half to the daughter and the other half to the brother's son, without the brother's daughter getting anything, although she is in the same category with him. Similarly, if the decedent has a sister, a paternal uncle and a paternal aunt, they divide the estate between the sister and the uncle and exclude the aunt.

The Qur'an entitles both men and women to inheritance, while these schools entitle men and neglect women. This shows that the opinion justifying ta'sib is void because it leads to a void conclusion.15

In objection to this stand, it is observed that the inheriting of the whole estate by a daughter or daughters is contrary to the verse of the Qur'an:

فَإِنْ كُنَّ نِسَاءً فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ وَإِنْ كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ

وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِنْ كَانَ لَهُ وَلَدٌ

Then if they are more than two females they shall have two-thirds of what

the deceased has left, and if there is only one, she is entitled to half the estate;

and for his parents, each is entitled to one-sixth of what he has left if he has a child (4:11)

Similarly, the inheriting of the whole estate by a single sister contradicts the explicit verse:

إِنِ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ وَلَهُ أُخْتٌ فَلَهَا نِصْفُ مَا تَرَكَ وَهُوَ يَرِثُهَا

إِنْ لَمْ يَكُنْ لَهَا وَلَدٌ فَإِنْ كَانَتَا اثْنَتَيْنِ فَلَهُمَا الثُّلُثَانِ

If a childless man dies and he has a sister, her share is half of what he has left, and he shall be her heir if she has no child; then if there be two sisters, their share is two-thirds (4:176)

The Qur'an determines the share of a single daughter as half and that of two or more daughters as two-thirds. Similarly, it determines the share of a single sister to be half and that of two or more sisters to be two-thirds, while the Imamiyyah obviously oppose this law.

The lmamiyyah give the following reply in regard to the first verse (4:11):

1. Certainly, the Qur'an has determined the share of two or more daughters to be two-thirds and that of a single daughter as half; but it is necessary that there be another person so that the remainder after the deduction of the share could revert to him. The Qur'an does not specifically mention this person, and had it done that, there would have been no difference of opinion. The Sunnah also makes no mention of it, neither explicitly nor implicitly, and the tradition, و أُلْحِقوا الفَرَائِضَ is not authentic as already mentioned.

Hence nothing remains to prove specifically to whom the remainder goes, except the following verse of the Qur'an:

وَأُولُو الْأَرْحَامِ بَعْضُهُمْ أَوْلَىٰ بِبَعْضٍ فِي كِتَابِ اللَّهِ

Some relatives are preferred over some others in the ordinance of God. (33:6)

It proves that the nearer relative is to be preferred to the more distant, and there is no doubt that one's daughter is more closely related to one than one's brother, because she is related to him directly while his brother is related to him through either parent or both of them. Therefore, in such a case, the remainder will revert to the daughter or daughters, to the exclusion of the brother.

2. The Hanafi and the Hanbali schools observe: If the deceased leaves behind a daughter or daughters and there exists none else from among the sharers and the residuaries,16 the whole estate will devolve on the daughter, half as a share and the other half by 'return,' and similarly on the two daughters, two-thirds as their share and the remaining by way of 'return.' If the verse does not prove the negation of the 'return' devolving on the sharers in this case, it will similarly not negate it in other cases, because a single proof is incapable of being broken into parts.

Furthermore, the Hanafi and Hanbali schools say: If the decedent leaves behind a mother and there are no other sharers and residuaries, she will take a third as a sharer and the remaining two-thirds by way of 'return'. If a mother can take the whole estate, it is similarly wajib that the daughter be also entitled to it, because bot h of t hem belong to the class of sharers. (al-Mughni and al-Shi'rani's Mizan, bab al-fara’id)

3. The four Sunni schools concur that if the decedent leaves behind his father and a daughter, the father will take one-sixth as a sharer and the daughter will similarly take half as a sharer, and the remainder will revert to the father, despite the Qur'anic verse:

وَلِأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِّنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِن كَانَ لَهُ وَلَدٌ

and for his parents, each is entitled to one-sixth of what he has left if he has a child (4:11)

Hence as the share determined by this verse does not negate the father's right to receive more than one-sixth, similarly the share determined in the verse:

فَلَهُنَّ ثُلُثَا مَا تَرَكَ

they shall have two-thirds of what the deceased has left (4:11)

will not negate the daughters' right to receive more than two-thirds nor a single daughter's right to the excess over half, especially after the shares of both the daughters and the father have been mentioned in the same verse and the same context.

4. The Qur'an says:

وَاسْتَشْهِدُوا شَهِيدَيْنِ مِنْ رِجَالِكُمْ فَإِنْ لَمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَامْرَأَتَانِ

And call two witnesses from among your men, but if there are not two men, then one man and two women (2:282)

This verse explicitly states that a debt is proved by two male witnesses and also by the evidence of a male and two female witnesses. Some of the four Sunni schools consider it provable by a single male witness and an oath; rather, Malik says: It is proved by the evidence of two women and an oath. Hence, as this verse does not prove that a debt is not provable by a single male witness along with an oath, similarly the verse relating to inheritance does not prove the invalidity of reverting the remainder to a daughter or daughters, and to a sister or sisters.

The Imami reply in regard to the second verse (4:176) إِنِ امْرُؤٌ هَلَكَ لَيْسَ لَهُ وَلَدٌ is that the word walad is applicable to both a male and a female child, because it is derived from wiladah (birth), which includes son and daughter, and also because the common denominator between a person and his relatives is kinship, which is inclusive of males and females. The Qur'an has used the word awlad for children of both sexes.

وصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنْثَيَيْنِ

God charges you, concerning your children: to the male the like of the portion of two females (4:11)

وَمَا يَنْبَغِي لِلرَّحْمَٰنِ أَنْ يَتَّخِذَ وَلَدًا

And it is not befitting the All-merciful to take a child. (19:92)

As these verses show, the word walad, stands for 'child,' irrespective of sex.

يا أَيُّهَا النَّاسُ إِنَّا خَلَقْنَاكُم مِّن ذَكَرٍ وَأُنثَىٰي

O mankind, we have created you from a male and a female (49:13)

Accordingly, since a son prevents the brother from inheriting, a daughter will also prevent him. What has been said about the daughter's inheritance applies in the case of the sister as well. Apart from this, the Imamiyyah have raised a number of objections against the Sunni schools, bringing to their notice certain conclusions that follow logically from their thesis, which are as unnatural as they are opposed to qiyas, which is practiced by these schools.

Among these criticisms is the one mentioned in al-Jawahir, that if the decedent has ten daughters and a son, the son, in this case, will take one-sixth and the daughters the remaining five-sixths. If in the place of the son the decedent has a paternal uncle's son (i.e. if he leaves behind ten daughters and a paternal uncle's son), according to the rule of ta’sib the uncle's son will receive one-third and the daughters two-thirds, and consequently the son's position here is worse than that of the uncle's son!

This is despite the fact that man has greater affection for his children when compared to his brothers, and he sees in his children, sons and daughters, an extension of his own existence. It is for this reason that we see individuals belonging to the Lebanese families having only daughters changing their school of fiqh from Sunni to Shi'i solely because they fear that their brothers and uncles will become coheirs with their children.

Presently, there are many Sunni scholars thinking of forsaking the principle of ta'sib and accepting the Imami view concerning the inheritance of a daughter, exactly as they have abandoned the view invalidating bequest in favour of an heir and have accepted the Imami view despite the consensus of the Sunni schools regarding its invalidity.

Al-'Awl

'Awl is applied where the shares exceed the heritage, such as where the decedent leaves behind a wife, parents and two daughters (the shares being, the wife's one-eighth, the parents' one-third, the two daughters' two-thirds; here the estate falls short of the sum of one-eighth, one-third and two-thirds [27/24]). Similarly, if a woman dies and leaves behind her husband and two agnate sisters, the share of the husband is one-half, and that of the sisters two-thirds; here the estate falls short of the sum of half and two-thirds (7/6). 'Awl occurs only if the husband or the wife is present.

The schools differ regarding the issue. Will he deficit, in such a case, be diminished proportionately from the shares of all the sharers, or will it be diminished from the shares of only some of them?

The four Sunni schools accept the doctrine of 'awl, the rule that all the shares will be diminished proportionately, exact like the creditors' claims when the assets fall short of meeting them. Hence the heirs are wife, parents and two daughters, according to these schools it will be an instance of 'awl. The obligation is met by dividing the heritage into 27 parts, though it earlier comprised 24 parts. The wife will take 3/27 (i.e. her share becomes 1/9 instead of 1/8), the parents take 8/27 and the daughter 16/27.

The Imamiyyah do not accept the doctrine of 'awl and keep the corpus (in the previous example) fixed at 24 parts by diminishing the share of the two daughters. Hence the wife takes her complete share of 1/8 (which is 3/24), the parents take 1/3 (which is 8/24), and the remainder goes to the two daughters.

The four schools argue in favour of the validity of 'awl and the reduction of all the shares by citing the precedent of a woman who died during the reign of the Second Caliph, 'Umar, leaving behind a husband and two agnate sisters. The Caliph gathered the Companions and said: “The shares determined by God for the husband and the two sisters are a half and two-thirds respectively. Now if I start with the husband's share, the two-thirds will not remain for the two sisters, and if I start with the two sisters, the half will not remain for the husband. So give me advice.”

Some advised him to follow 'awl by diminishing all the shares proportionately, while Ibn 'Abbas vehemently opposed it. But 'Umar did not accept his view and acted according to the opinion of others, telling the heirs: “I do not see any better way regarding this estate but to distribute it amongst you in proportion to your shares.” Hence 'Umar was the first person to apply 'awl to the shares and all the Sunni schools followed him.

The Imamiyyah argue regarding the invalidity of the doctrine of 'awl by observing that it is impossible for Allah, subhanahu, to divide an estate into shares of half and two-thirds, or shares of one-eighth, one-third and two-thirds, because, otherwise, ignorance and frivolity would be attributed to Him, while He is too exalted to deserve such attributes. Hence, it has been narrated from 'Ali ('a) and his pupil 'Abd Allah ibn 'Abbas that they said: “He Who can count the number of sand grains (in the universe) surely knows that the number of shares do not exceed six.”

The Imamiyyah always diminish the share of the daughters or sisters, and the shares of the husband, the wife and the parents remain unaltered; because the daughters and the sisters have been assigned a single share and do not face a reduction from a higher to a lower share. They, therefore, inherit as sharers in the absence of a male heir and as residuaries in his presence, and at times they are entitled along with him to less than what they are entitled to when alone.

However, the share of the husband is reduced from a half to one-fourth, the wife's from one-fourth to one-eighth, the mother's from one-third to one-sixth, and in certain cases the father, inherits one-sixth as a sharer; the share of none of them further diminishes from its determined minimum, and nothing is reduced from it. Hence, when the shares exceed the corpus, a start will be made from this minimum limit and the remainder will go to the daughters or sisters.

Al-Shaykh Abu Zuhrah, in al-Mirath 'inda al-Ja'fariyyah, quotes Ibn Shihab al-Zuhri17 as having said, “If it were not for the preference given to the fatwa of the just leader 'Umar ibn al-Khattab over the fatwa of Ibn 'Abbas, the observation of lbn 'Abbas is worthy of being followed by every scholar and worthy of consensus over it.” The Imamiyyah have adopted the opinion of Ibn 'Abbas --may God be pleased with both of them-- which is a good rule, as pointed out by Ibn Shihab al-Zuhri, who was an ocean of knowledge.

Exclusion (al-Hujb)

By Hujb is meant the exclusion of some relatives from inheritance. Hujb is either exclusion from the actual inheritance itself (such as the exclusion of the grandfather by the father, which is called ‘hujb al-hirman’) or prevention from a part of the inheritance (such as the reduction of the husband's share by a child from a half to one-fourth, which is called ‘hujb al-nuqsan’).

The schools concur that parents, children, husband and wife are not excluded by hujb al-hirman, and whenever present they will take their share from the inheritance and no impediment prevents them from it, because they are the nearest to the decedent, being related to him without any intermediary, while all others are related through an intermediary.

The schools concur that the son excludes brothers and sisters from inheritance, and, with greater cause, the paternal and maternal uncles. The son does not prevent the paternal grandfather and the maternal grandmother, in the opinion of the Sunni schools, and the son's son in the absence of the son, is exactly like the son, inheriting as his father would have inherited and excluding in the same manner.

There is consensus among the schools that the father excludes the brothers and sisters from inheritance, as well as the paternal grandfather. But the maternal grandmother, according to the Sunni schools, inherits along with the father and takes one-sixth in the absence of the mother, and in the opinion of the Hanbalis the paternal grandmother inherits along with the father, i.e. her son. The Shafi’i, the Hanafi and the Maliki schools say: She will not inherit with him, because she is excluded by him. (al-Mughni, vol. 6, p. 211, and al-Bidayah wa al-nihayah, vol. 2, p. 344)

The Imamiyyah state: The father is similar to the son and none of the grandparents inherit along with him, because they belong to the second category while he belongs to the first of the categories of heirs.

The four schools say: The mother excludes all kinds of grandmothers (al-Mughni, vol. 6, p. 206), but does not exclude grandfathers, brothers or sisters, nor the full and agnate paternal uncles and aunts, and all of them share the inheritance with her.

The Imamiyyah observe: The mother, like the father, excludes all kinds of grandparents, brothers and sisters.

The four schools state: The daughter does not exclude the son's son, and two or more daughters exclude the son's daughters, except when they have a male counterpart. But a single daughter does not exclude the son's daughters. A single daughter or daughters exclude cognate brothers.

The Imamiyyah say: A daughter is like a son and excludes the children 's children, both male and female, and, with greater justification, the brothers and sisters.

The schools concur that a grandfather and brother exclude paternal uncles and aunts, and a child, male or female, brings down the husband's share from a half to one-fourth and the wife's share from one-fourth to one-eighth. The schools differ regarding the minimum number of brothers or sisters required to diminish the mother's share from one-third to one-sixth.

The Malikis say: The minimum required to diminish her share is two brothers. The Hanafi, the Shafi’I and the Hanbali schools observe: Two brothers or two sisters suffice.

The Imamiyyah state: Brothers do not diminish the share of the mother unless the following conditions are fulfilled:

1. There should be two brothers, or a brother and two sisters, or four sisters. Hermaphrodites will be considered sisters.

2. The absence of impediments to inheritance, such as homicide and difference of religion.

3. That the father be present.

4. The brothers should be either full or agnate.

5. They should have been born. Hence, unborn brothers do not exclude.

6. They should be alive. Hence, if one of them is dead, he will not exclude.

On the whole, the difference between the Sunni schools and the Imami school is that the Imamiyyah prefer the nearer relative to the more distant, irrespective of his/her belonging to the same category (e.g. the son supersedes the son's son, and the father supersedes the grandfather) or another category (e.g. the son's son supersedes the brothers).

They say: One who is related through both parents excludes his consanguine (agnate) counterpart on the same side. Hence a full sister excludes a consanguine brother, and a full paternal aunt excludes a consanguine paternal uncle; but a full paternal uncle does not exclude a consanguine maternal uncle, because they are not from the same side. The Imamiyyah do not discriminate between male and female heirs regarding their right to inheritance. Therefore, in the same way as the children 's children represent the children in their absence, the children of brothers and sisters represent their parents in their absence.

The Sunni schools do accept the doctrine of preferring the nearer relatives to the more distant ones, though not totally; rather, they lay down the condition of unity of class, i.e. the nearer one excludes another who is related through him/her, except the uterine (cognate) brothers, who are not excluded by the mother though they are related through her, and similarly the great grandmother, who inherits with the grandmother, i.e. with her daughter.

But if he/she is not related through another, he/she is not excluded; e.g. the father, though he excludes the paternal grandfather, does not exclude the mother's mother, and similarly the mother, though she excludes the maternal grandmother, does not exclude the paternal grandfather. The uncles and aunts of the decedent are preferred over the uncles and aunts of the decedent's father. Similarly, the grandparents of the decedent are preferred over his/her father's grandparents. The nearer grandmother excludes the more distant grandmother. All this is due to the doctrine of the nearer being preferred.18

These schools also differentiate between male and female heirs. Hence, the brothers of the decedent inherit with his daughters, though they do not inherit with his sons. The brothers' children do not inherit with the grandparents in the opinion of these schools, as opposed to the Imamiyyah.

This is a very brief account of the exclusions through which I intended to highlight the salient features of the Imami and the Sunni schools. Otherwise, the chapter on exclusions is a vast one and it is possible for a writer to include in it all the issues of inheritance. This will become clear from the forthcoming discussions.

The Return (al-Radd)

The question of ''return' arises only in the case of the sharers, because their shares are fixed and determined. At times they exhaust the whole estate (e.g. parents and two daughters, the parents receiving one-third, and two-thirds going to the two daughters), and on other occasions they do not exhaust it (e.g. a daughter and the mother, the former receiving half and the latter one-sixth).

In the latter case, the question arises as to what is to be done with the remaining one-third and to whom should we return it. In the event of there being no specific shares for the heirs (such as brot hers and uncles, who do not inherit as sharers) the question of return does not arise.

The four Sunni schools say: The excess of the sharers' shares is given to the residuaries. Hence if the deceased has a single daughter she will take half and the remainder goes to the father; and in his absence, to the full or consanguine sisters because they are residuaries with a daughter; and in their absence to the full brother's son; and in his absence to the consanguine brother's son; and then, in this order: the paternal uncle, the consanguine uncle and the paternal uncle's son. In the absence of all of them, the excess will be returned to the sharers in the proportion of their shares, except the husband and the wife, as they are not entitled to the return.

For example, if a decedent leaves behind mother and a daughter, the mother will take one-sixth and the daughter half as their respective shares, and the remainder will be given to them as 'return' by division into four parts, the mother receiving one-fourth and the daughter three-fourths. Similarly, if he leaves behind a consanguine and a uterine sister, the former will take the daughter's share and the latter the mother's share.

The Shafi’I and the Maliki schools say: If there is no residuary, the remainder, after the assignment of the sharers' shares, will escheat to the bayt al-mal.

The Imamiyyah observe: The sharers are entitled to the remainder in proportion to their shares by way of 'return' if there exists no relative in their category; and if such a relative exists, after the sharer takes his share the remainder will go to that relative (e.g. when the mother and the father are heirs, after the mother takes her determined share, the remainder shall go to the father).

If there exists with a sharer a relative who does not belong to his category, the sharer will take his share and then also the remainder by way of 'return' (e.g. when the decedent is survived by his mother and a brother, she, after taking one- third as a sharer, will take the remainder by way of 'return,' the brother receiving nothing because he belongs to the second category, while she belongs to the first category).

Similarly, if there exists a consanguine sister with a paternal uncle, she will inherit the first half as a share and the second half by way of 'return,' to the exclusion of the uncle, because he belongs to the third category while she belongs to the second category.

The Imamiyyah do not give the 'return' to a uterine brother or sister in the presence of a consanguine brother or sister. Hence if the decedent is survived by a uterine and a consanguine sister, the former is entitled to one-sixth and the latter to a half (as sharer) as well as the remainder by way of 'return,' to the exclusion of the uterine sister.

Yes, a uterine brother or sister is entitled to the 'return' if there is none belonging to their category, such as if the decedent is survived by a uterine sister and a consanguine paternal uncle, the whole estate will devolve on her to his exclusion, because he belongs to the third category, while she belongs to the second category.

The Imamiyyah also do not entitle the mother to the 'return' in the presence of those who prevent her from inheriting in excess of one-sixth. Hence if the deceased has a daughter and parents, and also brothers -- who exclude the mother from inheriting one-third-- the remainder will go only to the father and the daughter. But if there are no brothers to exclude the mother, the 'return' will be shared by the father, the daughter, and the mother in proportion to their shares.

It will be seen while discussing the inheritance of husband and wife, that the Imamiyyah entitle the husband and not the wife to inherit by way of 'return' in the absence of all other heirs apart from them.

The Inheritance of a Fetus; Disowned and Illegitimate Children

The Inheritance of a Fetus

If a person dies while his wife is pregnant, the distribution will be postponed, if possible, till childbirth; otherwise, a share will be withheld for the child. The schools differ regarding the share to be withheld.

The Hanafis observe: The share of a single son will be withheld for the child in the womb, because it is generally so and it is improbable that it should fall short. (Kash al-haqa’iq fi sharh Kanz al-daqa’iq, vol. 2, bab al-fara’id fi fiqh al-Hanafiyyah)

Mu’awwad Muhammad Mustafa in al-Mirath fi al-Shari’ah al-‘Islamiyyah and Muhammad Muhammad Sa’afan, quoting from al-Sirajiyyah, state that Malik and al-Shafi’I have said: A share of four sons and four daughters will be withheld.

A curious incident has been reported in al-Mughni (3rd ed. p.314): It has been narrated from al-Maridini that a pious and learned resident of Yaman informed him that a woman of Yaman gave birth to a thing resembling a paunch. They thought that it contained no child and threw it away on the wayside. When the sun rose and it was warmed up by sunshine, it wriggled and burst open and seven male infants emerged from it. All of them survived and were physically sound, except for the smallness of their bodily members. This gentleman from Yaman further added: One of them wrestled with me and put me down, and I was reproached by the people, who would say, "You were beaten by a seventh of a man!"!

The Imamiyyah state: The share of two male children will be withheld for caution's sake and the husband and the wife will be given their minimum shares.

A child in the womb will inherit on condition of its being born alive19 and its mother giving birth to it in less than six months --or even six months, if her husband copulates and dies immediately afterwards. It is also necessary for the maximum gestation period not to expire after the death, in accordance with the difference among the schools regarding this period, as already mentioned in the chapters on marriage and divorce. Therefore, as per consensus, if the child is born after the expiry of the maximum gestation period, he will not inherit.

Child Disowned by the Father (Walad al-Mula'anah)

The schools concur that there will be no mutual inheritance between the couple if the husband accuses the wife of adultery, and between the child born thereafter and its father and paternal relatives. However, the child, its mother and maternal relatives will inherit mutually. While inheriting from the child, its relatives through both parents and relatives through the mother enjoy the same status. Hence his full and uterine brothers are considered equal in status.

The lmamiyyah observe: If the father takes back his accusation and accepts the child, the child will inherit from the father, but the father will not inherit from the child.

The Illegitimate Child (Walad al-Zina)

The four Sunni schools concur that an illegitimate child is similar to a child disowned by the father, in all that which has been mentioned concerning the absence of mutual inheritance between the child and the father and the presence of such inheritance between the child and its mother. (al-Mughni, vol. 6, bab al-fara'id)

The lmamiyyah say: There is no mutual inheritance between an illegitimate child and its fornicator mother, in the same manner as there is no such inheritance between the child and its fornicator father, because there is a common impeding cause between the two, i.e. fornication.

The Marriage and Divorce of an Ill-Person

The Hanafi, the Shafi’i and the Hanbali schools say: Marriage during illness is similar to marriage during health in respect of each spouse inheriting from the other, irrespective of whether the marriage is consummated or not. In this context an 'ill person' means one in his death-illness.

The Malikis observe: If a marriage contract is concluded during the illness of either spouse, the marriage will be considered invalid except where it has been consummated. (al-Mughni, bab al-fara'id)

The Imamiyyah state: If a person marries during death-illness and dies before consummation, the wife will neither be entitled to mahr nor inheritance from him. Further, he will not be entitled to inherit her if she dies before him, prior to consummation, and then he dies after her as a result of that illness (al-Jawahir, bab al-mirath). If a woman marries during death-illness, the rule applicable to a healthy woman applies to her concerning the right of the husband to inherit from her.

The schools concur that if an ill person divorces his wife and dies before the completion of the 'iddah, the wife will inherit from him irrespective of the revocability or irrevocability of the divorce.20 They also concur that she will not inherit if he dies after the completion of her 'iddah and before her marriage with another. The Malikis and the Hanbalis observe: She will inherit regardless of the length of time.

The Hanafi and the Shafi’i schools state: After the completion of her 'iddah she becomes a stranger and is not entitled to any share in the inheritance. (al-Mughni, bab al-fara’id)

This opinion is in accordance with the Islamic jurisprudential principles, because the marital bond snaps on the completion of the 'iddah, making her marriage with others permissible, and every woman whose marriage with others becomes permissible does not inherit from her former husband. This principle cannot be departed from except on the presence of a Qur'anic verse or a confirmed tradition.

The Imamiyyah say: If a husband divorces his wife during his death-illness in a revocable or irrevocable manner (as in the case of a triple, menopausal divorcee with whom marriage has not been consummated), and then dies before the completion of one year from the date of divorce, she will inherit from him if the following three conditions are fulfilled:

1. that his death be the result of the illness during which he divorced her;

2. that she should not have remarried;

3. that the divorce should not have been given on her demand.

They base these conditions on the traditions of the Ahl al-Bayt ('a).

The Father's Share in Inheritance

Following are the different situations relating to the father's share in inheritance:

1. The schools concur that the father, in the absence of the mother, children, children's children, grandmothers and spouse, is entitled to the whole estate, though by relationship (qarabah) according to the Imamiyyah, and through ta'sib according to the rest , i.e. the difference lies in naming the cause leading to inheritance, not in the actual inheritance and his share in it.

2. If a spouse exists with the father, he/she will take the maximum share to which he/she is entitled and the remainder, as per consensus, will go to the father.

3. If there are with the father a son, or sons, or sons and daughters, or the son's son how lowsoever, the father will take one-sixth and the remainder, as per consensus, will go to the others.

4. If there is a single daughter with the father, they will be entitled to a half and one-sixth respectively as sharers. The remaining one-third will return to him by way of ta’sib according to the Sunni schools. Hence the daughter receives half as share, and the father the other half as share and 'return.' The father excludes the grandfathers, brothers and sisters, both paternal and maternal, irrespective of their being full, consanguine or uterine.

The Imamiyyah observe: The remainder will return to the father and the daughter together, and not solely to the father. The remainder will be divided into four parts, the father receiving one part and the daughter three parts, because in every instance of 'return' in which two sharers are involved, the remainder will be divided into four parts, and if three sharers are involved, it will be divided into five parts (Miftah al-karamah, vol. 28, p. 115).

5. If there are two or more daughters with the father, according to the Sunni schools the daughters will take two-thirds and the father one-third.

The lmamiyyah say: The father receives one-fifth and the daughters four-fifths, because the one-sixth which remains after they have taken their shares returns to all of them and not solely to the father, as mentioned in the preceding example.

6. If a maternal grandmother is present with him, she will take one-sixth and he the remainder, because in the opinion of the Sunni schools a maternal grandmother is not excluded by the father (al-‘Iqna’ fi hall alfaz Abi Shuja’, vol. 2, bab al-farai’d)

The Imamiyyah observe: The father will receive the whole estate and the grandmother is not entitled to anything in any manner,because she belongs to the second category and he to the first.

7. If there are the father and mother together, she will take one-third if not prevented from it according to the Sunni schools, by two brothers or sisters, and by two brothers or one brother and two sisters or four sisters according to the Imamiyyah, as mentioned while explaining hujb; the father will take the remainder. But if she is partially excluded by the brothers, her share will be reduced to one-sixth and the father will take the rest. A consensus prevails here.

A question might be appropriately raised here: Why do the Imamiyyah not return the remainder to both parents, as done by them if a daughter inherits with the father?

The reply is that both the father and the daughter are sharers when they inherit together, and when sharers inherit together each takes his determined share and the remainder 'returns' to all of them in proportion to their shares. In the present case, the father while inheriting with the mother inherits as a residuary and not as a sharer because there is no child present, whereas the mother inherits as a sharer, and whenever a sharer inherits together with a residuary the latter takes the remainder. (al-Masalik, vol. 2, bab al-mirath)

8. If a daughter's son is present with the father, the father will take the whole estate and the daughter's son, according to the four Sunni schools, will get nothing because he is among the distant kindred.

The Imamiyyah say: The father will receive one-sixth as his share and the daughter's son will take half as his mother's share. The remainder will return to both exactly in the manner mentioned in the fourth illustration pertaining to his inheriting with the daughter.

The Mother's Share in Inheritance

Following are the different situations relating to the mother's inheritance:

1. The Imamiyyah observe: The mother is entitled to the whole estate in the absence of the father, children, children's children and spouse.

The other schools say: The mother will not receive the whole estate except in the absence of all sharers and residuaries, i.e. in the absence of the father, the paternal grandfather, children, children's children, brothers, sisters, their children, grandfathers how highsoever, paternal uncles and their children. As to the presence of grandmothers, they do not prevent her from inheriting the whole estate, because all of them are excluded by her in the same manner as the grandfathers are excluded by the father. Similarly, maternal uncles and aunts do not prevent her from inheriting the whole estate, because they are related to the decedent through her and one who is related through another person is excluded by that person.21

2. If the situation mentioned in the first mode prevails along with the presence of a spouse, the spouse will take his/her maximum share and the remainder will go to the mother.

3. If with the mother are present a son, or sons, or sons and daughters, or son's son how lowsoever, according to consensus she will take one-sixth and the remainder will be taken by the others.22

4. If a single daughter inherits with the mother and there are no other residuaries, such as the paternal grandfather, brothers, and paternal uncles, and no sharers, such as sisters and spouse, the mother will receive one-sixth and the daughter half as sharers, and the remainder, according to the Imami, the Hanafi and the Hanbali schools, will be shared by both after dividing it into four parts, the mother receiving one part and the daughter three parts.

The Shafi’i and the Maliki schools state: The remainder will escheat to the bayt al-mal, and it has been mentioned in al-'lqna' fi hall alfaz Abi Shuja’ (vol. 2) that if an -orderly system of bayt al-mal does not exist, as when the ruler is unjust, the remainder will return to the sharers in proportion of their shares.

5. If there are two daughters inheriting with the mother in the absence of all other sharers and residuaries, as in the preceding illustration, the views expressed there apply here as well, except that the remainder here will be divided into five parts, one part going to the mother and the other four to the two daughters.

6. The case where she inherits with the fat her has been discussed in the preceding section regarding the father's share in inheritance.

7. Where she inherits with the paternal grandfather in the absence of the father, the four Sunni schools observe: The paternal grandfather will represent the father, and the rule is the same in both cases.

The Imamiyyah say: The mother is entitled to the whole estate, to the exclusion of the grandfather, because he belongs to the second category and she to the first. As per consensus, the grandmothers, paternal as well as maternal, do not inherit with the mother and, similarly, the maternal grandfather too does not inherit with her. According to the Sunni schools, none of the grandparents except the paternal grandfather inherit with the mother, and none of them inherit with the father except the maternal grandmother. But the Imamiyyah do not consider grandparents capable of inheriting with either parent.

8. If a full or consanguine brother is present with the mother, she will, according to the Sunni schools, take one-third as sharer and the remainder will go to the brother on account of ta'sib, and if there are with her two full or consanguine or uterine brothers or sisters,23 she will take one-sixth and the remainder will be taken by the brothers, because she is excluded by them from inheriting more than one-sixth.

According to the Imamiyyah, she will take the whole estate by share and 'return,' to the exclusion of the brothers.

9. If, along with her, are present a full or consanguine sister or two such sisters, the rule is like the case where a daughter or two daughters are present with her, as mentioned in the fourth and fifth cases.

10. If a single uterine brother or sister is present with her, and there exists no other sharer or residuary, he/she will take one-sixth and the mother one-third, as sharers, and the remainder will 'return' to them in proportion to their shares. If there are with her two or more uterine brothers or sisters, they and the mother will each take one-third as sharers and the remainder will be proportionately shared by them together, because that which remains after the sharers have been assigned their shares returns to them proportionately in the opinion of the Hanafi and Hanbali schools, and escheats to the bayt al-mal according to the Shafi’is and the Malikis. The Imamiyyah give the whole estate to the mother.

11. If a full sister and a consanguine sister are present with her, the m other will take one- third, the full sister half, and the consanguine sister one-sixth to complete the two-thirds (for her one-sixth and the full sister's half add up to two-thirds, the maximum which two or more sisters can inherit). The Imamiyyah entitle the mother to the whole estate.

12. According to the Sunni schools the presence with her of full or consanguine paternal uncles and aunts is like that of full or consanguine brothers with respect to inheritance and their respective shares.

13. Where there are with her a paternal uncle and a uterine sister, the mother will take one-third, the sister one-sixth, and the remainder will go to the uncle. Hence the uncle who, according to the Imamiyyah, belongs to the third category, inherits together with the sister (who belongs to the second category) and the mother (who belongs to the first category). The Imamiyyah entitle the mother to the entire estate.

14. If with the mother are present the husband, uterine brothers and full brothers, this case is called al-mas’alat al-himariyyah (the case of the donkey), because in such a case the Caliph 'Umar had recognized the uterine brothers' right to inheritance and excluded the full brothers, which led one of the full brothers to say:

يَا أَمِيرَ المُؤَمِّنِينَ هَبْ أَنَّ أَبَانَا كَانَ حِمَاراً

O Leader of the Faithful, assume that our father were a donkey.

Thereat, 'Umar changed his decision and included them among the heirs.

The Hanafi and the Hanbali schools observe: The husband will take half, the mother one-sixth, and the uterine brother one-third. The full brothers will receive nothing as they are residuaries and the inheritance is exhausted by the sharers alone; i.e. every sharer takes his share and nothing remains for the residuaries. The Maliki and the Shafi’i schools say: The one-third will be distributed among the full and uterine brothers, a male receiving the share of two females (al-Mughni, vol. 6, p. 180, 3rd ed.)

The Imamiyyah state: The whole estate goes to the mother.

15. If only a daughter's daughter is present with the mother, according to the Sunni schools, the mother will take one-third as sharer and the rest as 'return' and the daughter's daughter will receive nothing.

The Imamiyyah say: The position of the mother with the daughter's daughter is similar to her position with the daughter, as mentioned in the fourth case.

Does the Mother Take One-Third of the Remainder?

The Sunni schools observe: If the father and a spouse are present with the mother, the mother will take one-third of what remains after the spouse has taken his/her share, not a third of the undivided estate. The stated reason, as mentioned in al-Mughni, is that if she takes one-third of the original estate, her share will exceed the father's share. Al-Shaykh Aba Zuhrah says in al-Mirath 'inda al-Ja’fariyyah: “The father's taking half the mother's share appears far-fetched from the viewpoint of the intent of the Qur'anic verse.”

He means that on the basis of the mother's taking one-third from the original estate and not from the remainder, her share will be 8/24, the husband's share 12/24 and the father's 4/24, which is half the mother's share. It is improbable for the verse to have intended such a result. But if she takes one-third of the remainder, her share will be 4/24 and the father's will be 8/24, which is twice her share; this is more probable and possibly what might have been intended by the verse.

The author of Kashf al-haqa’iq says: If the paternal grandfather is present instead of the father, he will not cause the mother to take one-third of the remainder; rather, she will take one-third of the original estate. Accordingly, this situation arises only when the father and a spouse are present with the mother, and other instances are not covered by it.

The Imamiyyah say: The mother is entitled to one-third of the original estate and not to a third of the remainder, irrespective of the presence of a spouse because the zahir (literal sense) of the Qur'anic verse:

فَلأُمِّهِ الثُّلُثُ

for his mother is one-third (4:11)

proves that it is one-third of what the decedent has left, and this statement has not been restricted to a situation where a spouse is not present. Further, the rules of the Shari'ah are not derived by reasoning or by applying the criterion of improbability.

The Inheritance of Children and Grandchildren

The Sons

In the absence of the decedent's parents and spouse, a son is entitled to the whole estate, and similarly two and more sons. When the sons and daughters inherit together, a male receives twice a female's share. A son, as per consensus, excludes grandchildren, brothers, sisters and grandparents. There is consensus that a son's son is like a son in the son's absence.

The Daughters

The Imamiyyah observe: A daughter or two or more daughters, in the absence of the parents and spouse, will inherit the whole estate (a single daughter takes half as her 'share' and the other half as 'return', and similarly two or more daughters take two-thirds as their 'share' and the remainder as 'return', without anything going to the residuaries).

The four Sunni schools say: Full and agnate sisters are residuaries with daughter or daughters. This implies that a single daughter will inherit half of the estate as her share in the absence of a son or another daughter, and that two or more daughters will inherit two-thirds as their share in the absence of a son. Hence if the decedent has a daughter, daughters, or a son's daughter, and also has a full or an agnate sister or sisters, if the decedent has no brother the sister or sisters will inherit the remainder as residuaries after the daughter or daughters have taken their share.
A full sister is like a full brother in the application of ta'sib and in excluding an agnate brother's son and those who come after him in the order of residuaries, and an agnate sister is a residuary like an agnate brother and excludes a full brother's son and those residuaries who come after him. (al-Mughni, 3rd. ed. vol. 6, p. 128, and al-Sa'idi’s al-Mirath fi al-Shari'at al- 'Islamiyyah, 5th ed. p.16)

The Imamiyyah state: None of the brothers or sisters inherit along with a daughter or daughters, nor with a son's daughter or a daughter's daughter, because a 'daughter', how lowsoever, belongs to the first category of heirs, whereas brothers and sisters belong to the second.

The Hanbali and the Hanafi schools state: If there is no sharer, residuary, or any other heir except daughters, they will be entitled to the whole estate, partly as a share and partly by the way of 'return'. But if the father is present with them, he will take the remainder after their share is given. If the father is not present, the remainder will go to the grandfather, and in his absence to the full brother, then to the agnate brother, then to the full brother's son, then to the agnate brother's son, then to the full paternal uncle, then to the agnate paternal uncle's son.

When none of these residuaries and sharers (such as sisters) is present, the daughters take the entire estate even if the decedent has daughters' children, sisters' children, brothers' daughters, uterine brothers' children, paternal aunts of all kinds, uterine paternal uncles, maternal uncles and aunts, and maternal grandmother.

The Maliki and the Shafi'i schools say: If the above-mentioned situation arises, a daughter or daughters will take their prescribed share and the remainder will escheat to the bayt al-mal. (al-Mughni, vol. 6, bab al-fara'id and Kashf al-Haqa'iq, vol. 2, p. 356)

Children's Children

The schools differ where the decedent is survived by children and grandchildren. The four Sunni schools concur that a son excludes both grandsons and granddaughters from inheritance; i.e. the children's children do not inherit anything in the presence of a son. But, if the decedent leaves behind a daughter and son's children, if the son's children are all males or some males and some females, the daughter will take a half and the other half will go to the son's children, who divide it among themselves in the proportion of the male taking twice a female's share. If there are son's daughters along with a daughter, the daughter will be entitled to a half and the son's daughter or daughters to one-sixth and the remainder will go to the sister. (al-Mughni, 3rd ed. vol. 6, p. 172)

If the decedent has two daughters and son's children, and there is no male among the son's children, the latter will not be entitled to anything. But if there is a male among them, the two or more daughters will take two-thirds and the remainder will go to the son's children, who divide it among themselves in the proportion of the male taking the share of two females (al-Mughni, vol. 6, pp. 170, 172). A daughter excludes the children of another daughter in a manner similar to the exclusion of a son's son by a son.

The Imamiyyah say: None of the grandchildren inherit in the presence of a single child, male or female, of the decedent. Hence if he leaves behind a daughter and a son's son, the entire estate will go to the daughter to the exclusion of the son's son.

If the decedent has no surviving children, male or female, though has children's children, the four Sunni schools concur that a son's son is like a son and represents him in excluding others from inheritance, in the application of ta'sib, etc. And if there are sisters inheriting with the son's son, the estate will be divided in the proportion of a male receiving twice a female's share. The four schools also concur that son's daughters are like daughters in the absence of daughters, in that a single son's daughter is entitled to half the estate, and if they are two or more they are entitled to two-thirds.

Like daughters, they exclude uterine brothers from inheritance, and share the estate with the son's son, a male receiving twice a female's share, irrespective of whether the son's son is their own brother or their paternal uncle's son. To sum up, a son's daughter is similar to a daughter. In other words, the children of the decedent's son are exactly like his own children. (al-Mughni, vol. 6, p. 169)

According to the Shafi'i and the Maliki schools, daughters' children do not inherit anything irrespective of their sex, because they are considered as distant kindred. Hence if none among the sharers and residuaries exist, the daughters' children will be excluded from inheritance and the estate will escheat to the bayt al-mal. The same applies to the son's daughters' children.

The Hanafi and the Hanbali schools state: The son's daughters' children will inherit in the absence of sharers and residuaries. (al-Mughni, vol. 6, fasl dhawi al-‘arham and Kashf al-haqa’iq, vol. 2, p. 255).

This was a summary of the opinions of the four Sunni schools regarding the inheritance of grandchildren in the absence of children.

The Imamiyyah observe: The children's children represent the children in their absence and each among them takes the share of the child through whom he is related. Therefore, the daughter's children, even if several and males, are entitled to one-third, and the son's children, even if a single daughter, are entitled to two-thirds. They distribute their share among themselves equally if of the same sex, and if they differ then a male is entitled to twice a female's share, irrespective of their being son's children or daughter's children, and the nearer descendants exclude the remote ones.

They inherit jointly with the decedent's parents and the 'return' reverts to the daughter's children, males or females, in the same manner as it does to the daughter. If the husband or the wife inherits with them, they are entitled to their minimum share.24

The Inheritance of Brothers and Sisters

Brothers and Sisters

In the opinion of the Sunni schools, brothers and sisters inherit in the absence of the son and the father,25 and inherit jointly with the mother and daughters. According to the Imamiyyah, they do not inherit except in the absence of parents, children and the children's children, male or female. Brothers and sisters are of three kinds:

1. full,

2. agnate (consanguine),

3. cognate (uterine).

Full Brothers and Sisters

The following situations pertain to the inheritance of full brothers and sisters:

1. Where males and females inherit together and there does not exist along with them any sharer or residuary (i.e. in the absence of the father, mother, daughter, grandmother, son and son's son), they are entitled to the whole estate and distribute it in accordance with the rule that a male receives twice a female's share.

2. Where they consist of males, or males and females, and there is along with them a uterine brother or sister, the uterine brother or sister will take one-sixth and the remainder will go to the full brothers and sisters, a male taking the share of two females. If there are two or more uterine brothers or sisters, they are entitled to one-third irrespective of their sex, with the remainder going to the full brothers and sisters.

3. Where the decedent has a full sister, she is entitled to a half as her share; if more than one, their share is two-thirds. If there does not exist along with a full sister or sisters a daughter or any uterine brothers and sisters, or sahih grandfathers26 and sahih grandmothers, the remainder, according to the Imamiyyah, will return to the sister or sisters.

The other four schools say: The remainder will return to the residuaries who are: the full paternal uncle, and in his absence the agnate paternal uncle, in his absence the full paternal uncle's son, and then the agnate paternal uncle's son, and in his absence the remainder will return, according to the Hanafi and the Hanbali schools, to the sister or sisters because only the sharers are entitled to the return conditional on the absence of residuaries; but according to the Shafi'i and the Maliki schools the remainder will escheat to the bayt al-mal.

To sum up, the position of full sisters is like that of daughters; a single sister takes a half, and two or more two-thirds, and if they inherit jointly with full brothers they divide the estate, with a male taking twice a female's share.

4. The Sunni schools say: If the decedent has a full and an agnate brother, the former will inherit to the exclusion of the latter, and the agnate brother will take the full brother's place in his absence.

If the decedent has full sister and one or more agnate sisters the full sister takes a half and the agnate sister or sisters one-sixth, except when there is also an agnate brother, in which case they are entitled along with their brother to a half, which they distribute in the proportion of a male taking twice a female's share.

If the decedent has full and agnate sisters, the full sisters are entitled to two-thirds and the agnate sisters receive nothing unless accompanied by an agnate brother, in which case they, along with their brother, are entitled to the remainder, which they distribute in the proportion of a male receiving twice a female's share.

To sum up, a full brother excludes an agnate brother; a single full sister does not exclude agnate sisters; and full sisters exclude the agnate sisters from inheritance when not accompanied by a male counterpart.

The Imamiyyah state: Full siblings exclude agnate siblings irrespective of their number and sex. Therefore, if the decedent leaves behind a full sister and ten agnate brothers, she will inherit to their exclusion.

5. If there is with a sister or sisters a daughter or two daughters of the deceased, the daughter or daughters will take their respective Qur'anic share of half or two-thirds, and the remainder, according to the Sunni schools, will go to the sister or sisters; a son's daughter is exactly like a daughter in this respect.

The Imamiyyah observe: The whole estate will go to the daughter or daughters and the sisters will receive nothing.

Agnate Brothers and Sisters

Agnate brothers and sisters take the place of full brothers and sisters in their absence, and the same rule applies to both. A single sister will receive a half and two or more sisters two-thirds; the principle of 'return' is similarly applicable to both in the manner mentioned earlier.

Uterine Brothers and Sisters

Uterine brothers and sisters do not inherit in the presence of the father, the mother, the paternal grandfather, children, sons' daughters (i.e. the uterine brothers and sisters are excluded by the mother, the daughter and the son's daughter).27

We have mentioned earlier while discussing the inheritance of the mother and the daughter that according to the Sunni schools full and agnate brothers and sisters inherit with the mother and the daughter. Rather, if they are present along with daughters' children, it is only they, according to the four Sunni schools, who inherit by excluding the daughters' children, even if they are males.

The uterine brothers and sisters are not excluded by the presence of full or agnate brothers and sisters, and a single uterine brother or sister inherits one-sixth; if more than one, they inherit one-third, irrespective of their sex, and, according to consensus, they share the inheritance equally, with a female receiving a share equal to that of a male.

A Subsidiary Issue

The author of al-Mughni observes: if there exists a full, an agnate and a cognate sister, the first will take a half, and the second and the third one-sixth, with the remainder returning to them in the proportion of their shares. This implies that the corpus be divided into five parts, the full sister taking three of them and the other two sisters one each.

The Imamiyyah say: The full sister will take a half and the uterine sister one-sixth, without the agnate sister receiving anything because of her exclusion by the full sister; the remainder will return solely to the full sister. 28 Here the corpus will be divided into six parts, five of them going to the full sister and one to the uterine sister.

Children of Brothers and Sisters

The four Sunni schools say: An agnate brother excludes from inheritance a full brother's son, and the full brother's sons exclude the agnate brother's sons. As to the children of sisters of all kinds (full, agnate and uterine), the uterine brothers' children and the full and agnate brothers' daughters, all of them belong to the group of distant kindred who do not inherit anything in the presence of full or agnate paternal uncles and their children. In the absence of full or agnate uncles and their children, they are entitled to inherit in the opinion of the Hanafi and Hanbali schools, while according to the Shafi'i and Maliki schools they are not so entitled and are considered essentially incapable of inheriting and the estate escheats to the bayt al-mal29 (al-Bidayah wa al-nihayah, vol. 2, p. 345, and al-Mughni, vol. 6, p. 229).

The lmamiyyah state: The children of brothers and sisters of all kinds do not inherit in the presence of even a single brother or sister of any kind, and when no brother or sister is present, their children take their place, each taking the share of the person through whom he is related to the decedent. Hence, one-sixth is the share of the son of a uterine brother or sister, and one-third is the share of the children of uterine brothers when the number of the brothers is more than one.

The remainder goes to the children of a full or agnate brother, the full brother's children excluding the agnate brother's children. Hence an agnate brother's son does not inherit with a full brother's son. The children of uterine brothers and sisters share the inheritance equally among themselves like their parents, while the children of agnate brothers and sisters share their inheritance with disparity, a male taking twice a female's share, like their parents.

The higher in generation among the brothers' and sisters' descendants exclude those of the lower generation; hence a brother's grandson is excluded in the presence of a sister's daughter, in accordance with the rule that the nearer excludes the remote. The children of brothers, like their parents, inherit jointly with the grandparents in the absence of their parents; hence, a brother's or sister's son will inherit with the paternal grandfather, and similarly the great grandfather will inherit with the brother in the absence of the grandfather.

The Maternal Grandfather

The Sunni schools observe: The maternal grandfather is included in the category of distant kindred who do not inherit in the presence of a sharer or residuary. Accordingly, the maternal grandfather does not inherit with the paternal grandfather, the brothers and sisters, the children of full or agnate brothers, the paternal uncles or their sons. When all of them are absent and there is no sharer present, according to the Hanafi and the Hanbali schools, the maternal grandfather is entitled to inherit. According to the Shafi’i and the Maliki schools, he is never entitled to any inheritance.

The Imamiyyah say: The maternal grandfather inherits with the paternal grandfather and with brothers and sisters of all kinds, and, likewise, he excludes paternal and maternal uncles and aunts of all kinds from inheritance, because he belongs to the second category of heirs, whereas they belong to the third. Hence if a maternal grandfather is present with a full paternal uncle, he takes the whole estate to the exclusion of the paternal uncle.

Grandmothers

There is consensus that the mother excludes from inheritance all kinds of grandmothers.

The Sunni legists state: In the absence of the mother, her mother represents her and inherits jointly with the father and the paternal grandfather, taking one-sixth in their presence. Similarly, there is no difference of opinion concerning the maternal and paternal grandmothers inheriting jointly. According to the Sunni schools, they are entitled to one-sixth, which they share equally among themselves.

The nearer grandmother excludes the more distant grandmother on her side. Hence the mother's mother excludes the latter's mother; the father's mother also excludes similarly. The nearer maternal grandmother (e.g. the mother's mother) prevents a remote paternal grandmother (e.g. the paternal grandfather's mother). The Sunni schools differ among themselves as to whether or not a nearer paternal grandmother, such as the father's mother, excludes a remote maternal grandmother, such as the maternal grandfather's mother (al-'Iqna' fi hall alfaz Abi Shuja', vol. 2, and al-Mughni, vol. 5, bab al-fara’id.). According to the Hanbalis, the father's mother inherits with her son; hence when they inherit together, she takes one-sixth and he the remainder.

The Imamiyyah say: If the maternal grandmother is present along with the paternal grandmother, the former takes one-third and the latter two-thirds, because the maternal grandfathers and grandmothers take one-third irrespective of whether they are one or more, dividing their share of the estate equally, and the paternal grandparents take two-thirds, whether one or more, and divide their share with disparity (a male taking twice a female's share).

The Paternal Grandfather

The four Sunni schools concur that the father's father represents the mother in her absence and inherits jointly with the son, like the father, though differing from the father in respect of his wife, the father's mother, because she does not inherit with the father, except in the opinion of the Hanbalis, but inherits jointly with the paternal grandfather, i.e. with her husband.

The father also differs from the paternal grandfather in the case of both parents jointly inheriting with a spouse; here, the mother inheriting jointly with the father and spouse receives one-third of the remainder after deducting the share of the spouse, and while inheriting jointly with the paternal grandfather and spouse she receives one-third of the original estate and not one-third of the remainder.

The four schools also concur that the paternal grandfather excludes from inheritance uterine brothers and sisters as well as the children of full and agnate brothers. These schools differ among themselves concerning whether the paternal grandfather excludes full and agnate brothers and sisters or if he inherits jointly with them.

Abu Hanifa observes: The paternal grandfather excludes all kinds of brothers and sisters from inheritance, exactly in the manner that they are excluded by the father. This is despite the fact that according to the Sunni schools the maternal grandfather excludes none of the different kinds of brothers and sisters, because he is included, as mentioned earlier, among distant kindred.

The Maliki, the Shafi’i, and the Hanbali schools and the two disciples of Abu Hanifa, Abu Yusuf and Muhammad ibn al-Hasan, state: Full and agnate brothers and sisters inherit jointly with the paternal grandfather. The manner of their inheriting with him is that he will be given the greater of these two: one-third of the whole estate or a brother's share. Accordingly, if there exist a brother and a sister, he will receive equal to a brother's share and take two-fifths of the estate, and if there exist three brothers, he will take one-third because a brother's share will be one-fourth. (al-Mughni, vol. 6, p. 218)

The Imamiyyah observe: The grandparents, brothers and sisters inherit together and belong to the same category. Hence if they exist together and are related to the decedent from the father's side, the grandfather and the grandmother will take the share of a brother and a sister respectively and the estate will be distributed with each male receiving twice a female's share. And if they are all related through the mother, they will distribute the estate with a male receiving twice the share of a female.

And if they exist together and are related to the deceased from either side --such as if there are with the maternal grandparents full or agnate brothers and sisters-- the grandfather or the grandmother or both together will inherit one-third and the brothers and sisters two-thirds.

And if the paternal grandparents exist along with uterine brothers and sisters, a sole uterine brother or sister will receive one-sixth; if they are more than one, they will be entitled to one-third, distributed equally among males and females, with the remainder going to the grandparents who distribute it with the grandfather receiving twice the share of the grandmother.

'Children' how low soever, of brothers and sisters of all kinds, represent their parents in their absence while inheriting along with all kinds of grandparents, each one of them inheriting the share of the person through whom he or she is related.

The Inheritance of Paternal and Maternal Uncles and Aunts

The four schools say: Aunts, both paternal and maternal, uterine paternal uncles and all kinds of maternal uncles and aunts do not inherit with full or agnate paternal uncles and their sons.30 Hence if there exists a full or agnate paternal uncle or his son, all the above-mentioned will be excluded from inheritance because they belong to the class of distant kindred, whereas he belongs to the class of residuaries, and according to them the residuaries supersede the distant kindred; rather, the Shafi'i and the Maliki schools do not consider them capable of inheriting at all, as mentioned repeatedly above.

A full paternal uncle inherits in the absence of full or agnate brothers and their sons, and not with full and agnate sisters, because though residuaries, they (the sisters) supersede the paternal uncle in the application of the doctrine of ta’sib.

A full paternal uncle inherits jointly with the daughter and the mother, because the two inherit as sharers and he as a result of ta’sib, and when a residuary inherits jointly with a sharer, the sharer takes his share and what remains of the estate goes to the residuary. And if there is no sharer at all, the residuary receives the whole estate.

Accordingly, if there are daughter's children or daughter's son's children with full or agnate paternal uncle or their sons, according to the four schools the whole estate will go to the uncle or his son to the exclusion of the daughter's children, even if there happen to be males among them. According to the Imamiyyah the opposite applies and the whole estate is inherited by the daughter's children to the exclusion of the paternal uncle.

In the absence of a full paternal uncle, the agnate paternal uncle takes his place, and in his absence the full paternal uncle's son. As to the mode of inheritance of a full paternal uncle and those who take his place, he takes, as pointed out earlier, the whole estate in the absence of all sharers, and in their presence he takes the remainder. To sum up, a full or an agnate paternal uncle is exactly like a full brother, or an agnate brother in the absence of a full brother.

The nearer 'paternal uncle' will supersede the distant one; hence the decedent's paternal uncle supersedes his father's paternal uncle, and the father's paternal uncle supersedes the grandfather's paternal uncle. Similarly, the full paternal uncle supersedes the agnate paternal uncle. In the absence of full and agnate paternal uncles and their sons, according to the Hanafi and the Hanbali schools, uterine paternal uncles, paternal aunts of all kinds, maternal uncles and maternal aunts become entitled to inherit.

f one of them exists solely, he will receive the whole estate, and if they exist together, the agnates will receive two-thirds and the cognates one-third. Hence if the decedent is survived by a maternal uncle and a paternal aunt, the uncle will receive one-third and the aunt two-thirds. The uterine maternal uncles and aunts distribute the estate in the proportion of a male receiving twice the share of a female, despite the fact that the uterine brother's children distribute the estate by allocating equal shares to males and females.31 ('Abd al-Muta'al al-Sa'idi's al-Mirath fi al-Shari'at al-'Islamiyyah, fas l irth dhawi al- 'arlham)

The Imamiyyah state: In the absence of the parents, children, children 's children, brothers, sisters, brothers' and sisters' children and the grandparents, the uncles and aunts, both maternal and paternal and of different kinds, become entitled to the estate. Some among them inherit to the exclusion of some others, while others among them inherit jointly.

If there exist paternal uncles and aunts and there are no maternal uncles and aunts with them, then a single paternal uncle or aunt is entitled to the entire estate irrespective of whether he or she is a full, an agnate, or a uterine uncle or aunt.

If there exist two or more paternal uncles and aunts related similarly to the decedent, and they are all full or agnate, they will distribute the estate with the male taking twice the female's share. If they are all uterine, they will distribute it without any difference between males and females. But if the paternal uncles and aunts differ in the manner of their relationship with the deceased (some being full, some agnate and others uterine) then only the agnates among them will be excluded from inheritance by the full paternal uncles, for they inherit only in the latter's absence. The agnate paternal uncle and aunt will take the same share which the full paternal uncle and aunt would take if present.

If full or agnate paternal uncles and aunts exist together with uterine paternal uncles and aunts, a sole uterine uncle or aunt will be entitled to one-sixth, and if more than one, they together will be entitled to one- third, sharing it equally without differentiating between the sexes.

If there exist maternal uncles and aunts but no paternal uncle or aunt, a sole maternal uncle will take the whole estate irrespective of his being full, agnate or uterine. If there are two or more maternal uncles or aunts who are similarly related to the deceased (i.e. they are all either full or agnate or uterine), they will distribute the estate equally among themselves, a male receiving an equal share with a female.

Bu t if they differ in the manner of their relation with the deceased (i.e. some are full, some agnate and others uterine) only the agnates among them will be excluded by their full counterparts. Where the full or agnate maternal uncles or aunts inherit with their uterine counterparts, a sole uterine uncle or aunt will take one-sixth, and if more than one, they together will be entitled to one-third, sharing it equally without differentiating between the sexes, with the remainder going to the full or agnate maternal uncles and aunts who also share it equally without differentiating between the sexes.

If a paternal and a maternal uncle or aunt inherit together, the maternal uncle or aunt will take one-third irrespective of their being one or more, and the paternal uncle or aunt two-thirds irrespective of their being one or more. The maternal uncles and aunts will distribute their share of one-third as they distributed it while they were the sole heirs in the absence of paternal uncles and aunts, and the paternal uncles and aunts will also similarly distribute their share of two-thirds.

In the absence of all paternal and maternal uncles and aunts their children take their place, each of them taking the share of the person through whom he or she is related, irrespective of there being one or more. Hence if one paternal uncle has a number of children and another paternal uncle only one daughter, the single daughter will be entitled to a half and the children of the other uncle to the other half.

The nearer from among the paternal or maternal side excludes the remote from its own side as well as from the opposite side; hence a paternal uncle's son does not inherit in the presence of a paternal or a maternal uncle, except in the particular instance where a full paternal uncle's son is present with an agnate paternal uncle, when the whole estate goes to the paternal uncle's son. A maternal uncle's son does not inherit in the presence of a maternal or a paternal uncle; hence if a paternal uncle's son is present with a maternal uncle, the entire estate goes to the maternal uncle, and if a maternal uncle's son is present with a paternal uncle, the whole estate goes to the paternal uncle.

Paternal and maternal uncles and aunts of the decedent and their children supersede in inheritance the paternal and maternal uncles and aunts of his father. Every child born to a nearer relative supersedes the remoter relative. Hence if a paternal uncle's son exists with the father's paternal uncle, the former is entitled to the estate, and similarly a maternal uncle's son when present with the father's maternal uncle, following the rule of the supersedence of the nearer relative.

If the husband, or wife, is present with paternal and maternal uncles or aunts, the husband or the wife will be entitled to his or her maximum share, the maternal uncles or aunts to one-third, irrespective of their number, and the remainder will go to the paternal uncles or aunts irrespective of their number. Hence the reduction of share is borne by the paternal uncle in all cases where the spouse is present along with the paternal and maternal uncles.

Therefore. if the husband is present with a maternal uncle or aunt and a paternal uncle or aunt, the husband will take three-sixths, the maternal uncle or aunt two-sixths, and the paternal uncle or aunt one-sixth; and if there is a wife, she will take three-twelfths, the maternal uncle or aunt four-twelfths, and the remainder of five-twelfths will go to the paternal uncle or aunt.

The Inheritance of the Spouses

The schools concur that the husband and the wife inherit jointly with all other inheritors without any exception, and that the husband is entitled to half the wife's estate if she does not have any child, neither from him nor from another husband, and to one-fourth if she has a child, either from him or from another husband. They also concur that a wife is entitled to one-fourth if the husband has no child, neither from her -nor from another wife, and to one-eighth if he has a child from her or from another wife.

The four Sunni schools observe: Here, by 'child' is meant only the decedent's own offspring or the son's child, irrespective of its sex. A daughter's child, on the contrary, does not prevent a spouse from taking his or her maximum share; rather, the Shafi’i and the Maliki schools say: The daughter's child neither inherits nor excludes others because it belongs to the category of distant kindred.

The Imamiyyah state: By 'child' is meant one's offspring as well as the children's, children irrespective of their being sons or daughters. Hence a daughter's daughter, exactly like a son, reduces the share of either spouse from the higher to the lower value.

If there are many wives, they will distribute their share of one-fourth or one-eighth equally among themselves. The schools concur that if a person divorces his wife revocably and then one of them dies during the period of 'iddah of the divorcee, they will inherit from each other as if the divorce had not occurred.

The schools differ regarding the situation where there is no other heir except the spouse as to whether the remainder will return to the spouse or escheat to the bayt al-mal.

The four schools say: It will return neither to the husband nor to the wife (al-Mughni).

The lmamiyyah are divided on this issue into three groups, each having a different opinion.

The first view is that it will return to the husband and not to the wife; this is the preponderant opinion and the legists have acted accordingly.

The second view is that it returns to both the husband and the wife in all situations.

The third view is that it returns to both in the absence of accessibility to a just ('adil) imam, as is the case at the present, and it returns to the husband and not the wife in the presence of an 'adil imam. This is the opinion of al-Saduq, Naji al-Din ibn Sa’id, al-‘Allama al-Hilli and al-Shahid al-‘Awwal, and their argument is that some traditions say that it returns to the wife while some other traditions say that it does not return to her; hence we consider the first group of traditions to be applicable in the absence of an 'adil imam and the second group of traditions to be applicable in the event of his presence.

A Missing Person's Property

A missing person is one who has disappeared with no news of his whereabouts and it is not known whether he is alive or dead. We have discussed in the chapters on marriage and divorce about the rules applicable to his wife and her divorce after four years, and here we intend to discuss the distribution of his property as well as his right to inheritance if any relative of his dies during the period of his disappearance. It is obvious that the divorce of the wife after four years neither entails that his estate be distributed after this period nor that it shouldn't; rather, it is possible that the wife be divorced but the estate be not distributed because there is no causal relationship between divorce and death.

The schools concur that it is wajib to delay the distribution of his estate so that a period of time passes after which he is not expected to be alive,32 and the specification of this period is the prerogative of the judge and differs with circumstances. When the judge gives a ruling announcing his death, the (surviving) relative nearest to him as regards inheritance at the time of this announcement will inherit him, but not any of his relatives who has died during the period of his disappearance.

If a relative of the missing person dies during the period of his disappearance in which there is no news of him, it is wajib to set aside his share, which will be considered like the rest of his property until his actual condition is known or until the judge rules announcing his death after the period of waiting.

Inheritance of Persons Killed by Drowning, Fire and Debris

Both Sunni and Shi'i legists have discussed the issue of the inheritance of persons killed by drowning, fire, building collapse and the like. They differ regarding the inheriting of one of them from another in an obscure situation in which it is not known whose death among them took place earlier.

The Imams of the four Sunni schools, the Hanafi, the Shafi'i, the Maliki and the Hanbali, have observed that none among them inherits from the other and the estate of each one of them will be transferred to the living heirs, excluding the heirs of the other decedent, irrespective of whether the cause of death, and the resultant ambiguity, is drowning, building collapse, murder, fire or plague.33

The Imami mujtahidun have done extensive work on this issue, and those of the last generation have sufficiently elucidated it by going into minute details which have not crossed the minds of the legists of early and latter eras. Before going into the specifics of the inheritance of victims of drowning, building collapse, etc., they take up the more general issue of two incidents of known occurrence but of unknown sequence, in which the precedence of each to the other leads to different legal consequences.

The latter day Shi'i mujtahidun (muta'akhkhirun) view the issue of the inheritance of victims of drowning and the like as a particular case of a more general problem that is not limited to any single chapter or issue of fiqh, but relates to any two events of known occurrence but of obscure precedence and subsequence, irrespective of whether the two events relate to contracts, inheritance, crime, etc.

Hence the problem includes two contracts of sale, one concluded by the owner himself with A regarding a particular article, and the second by his agent concerning the same article with B, it being unknown which of the two preceded the other so that the validity of the former and the invalidity of the latter contract could be ascertained.

The problem thus concerns any two events in which the consequences of one event are dependent on the precedence of the other over it, where there is nothing to prove that the two events took place simultaneously or successively. Therefore, the issue of drowned persons or the like is not an independent issue; rather, it is one of the many particular issues that come in the purview of a general rule.

Thus we see that the Shi'i mujtahidun initially concentrate on elucidating the rule itself and then discuss the issue of inheritance of victims of drowning and the like to see whether the general rule is applicable to them or if they are excluded from its application. There is no doubt that this manner of presenting the argument is more beneficial.

As the understanding of this rule depends upon the comprehension of two other closely-related principles, we shall explain them to the needed extent so as to grasp the said rule, although a discussion of these two principles is not less beneficial than that of the rule itself.

These two principles are as follows:

a) The presumption of non-occurrence of an event whose occurrence is doubtful.

b) The presumption of delayed occurrence of an event known to have occurred.

The Presumption of Non-Occurrence

Suppose you had a relative living abroad with whom you used to correspond. At one point he stopped writing to you and you did the same. After a long period of time it came to your mind that you should write to him. You wrote to him at his earlier address without the doubt troubling your mind that he might have died or moved to another place. What led you to pay no attention to the possibility of his death or change of his address?

Similarly, we believe in the honesty and integrity of a person, and rely upon him by depositing with him our valuables. Then he acts in a manner which raises a doubt in our minds that he might have changed, yet, we, despite this doubt, continue to treat him in the past manner. The same rule applies to all correspondences, transactions and communications.

The secret here is that man is led by his nature to accept the continuity of an earlier situation until the contrary is proved. Hence if A is known to be alive and later a doubt arises about his death, the presumption accepted by human nature is to consider him alive until his death is known in some manner. This is what is meant by 'the presumption of non-occurrence of an event' whose occurrence has not been proved, and the following statement of al-'Imam al-Sadiq (a) points towards it:

مَنْ كَانَ عَلَى يَقِين ثُمَّ شَكَّ فَلَا يُنْقَضُ اليَقِينُ بِالشَّكّ، إنَّ اليَقِينَ لَا يَنْقُضُهُ إلاّ اليَقِينُ،

لَا تُدْخِلِ الشَّكّ عَلَى اليَقِينِ، وَلَا تَخْلِطْ أَحَدُهُمَا عَلَى الآخَرِ،

وَلَا تَعْتَدَّ بِالشَّكِّ مَعَ اليَقِينِ فِي حَالٍ مِنْ الأَحْوَالِ

If a person is certain (about something) and then doubts (its remaining so),

his earlier certainty will not be demolished by the doubt.

Surely, certainty cannot be annulled by anything except certainty;

doubt cannot dislodge certainty, nor does any of them mix with the other,

under no circumstance give credence to doubt in the presence of certainty.

Hence, when we know that someone owes a debt for a particular sum and later claims having repaid it, the presumption is that he owes the debt until its repayment is proved. That is, we ought to know the payment of debt in the way that we know the fact of indebtedness, because knowledge is not annulled by anything except knowledge and a doubt arising after knowledge has no effect.

Therefore, one who makes a claim which contradicts the earlier condition of something, the burden of proof rests on him to prove his claim, and he whose claim is in accordance with the earlier condition is only liable to take an oath.

The gist of the above discussion is that the principle of presumption of non-occurrence of an event means the acceptance of an earlier existing situation until the contrary is proved.

The Presumption of the Delayed Occurrence of an Event

If a judge has knowledge of A's being alive on Wednesday and of his being among the dead on Friday, without knowing whether he died on Thursday or on Friday and has no clue to determine the time of his death, how should he decide the issue? Should he rule that A died on Friday, or that he died on Thursday?

Three different periods are involved in this case:

a) the period in which he was known to be living i.e. Wednesday;

b) the time at which he is known to be dead, i.e. Friday;

c) the period between the two times, i.e. Thursday, in which he is neither known to be alive nor dead.

The above principle requires that this intermediate period be considered similar to the period preceding it, not to the period subsequent to it. That is, the period of ignorance about his life will be regarded similar to the preceding period in which he was known to be alive. Hence we will remain on our knowledge of his being alive until the time of the knowledge of his death. The result is that his death will be presumed to have taken place on Friday. The same rule is applicable to every event of known occurrence in which a doubt arises regarding the time of its occurrence, provided that it is a single event and not a chain of events.

The Knowledge of Occurrence of Two Events with Ignorance of Their Order of Succession

Having explained the two principles concerning the presumption of non-occurrence of an event and the delayed occurrence of a single event, let us examine the general rule which is the end of this discussion.

The general rule concerns two events known to have occurred in which the consequences of each are dependent on its preceding the other, while there exists total ignorance about the precedence of any one of them. Among the instances when this problem arises are: the conclusion of two contracts, one concluded by the owner and the other by his agent; the occurrence of a birth and the making of a gift of property; the deaths of two mutual heirs none of whom is known to have died before the other.

The application of this rule depends upon the judge's knowledge of the time of occurrence of each one of the two events or his ignorance about the time of occurrence of both events or one of them. Hence three different situations arise:

1. Where the judge comes to know the time of occurrence of both the events by examining the statements made by the parties to the suit or through circumstantial evidence. Here he will rule in accordance with his knowledge.

2. Where the judge is ignorant of the precedence of one event over the other, though he comes to know the time of occurrence of one of them (such as, his knowing that a horse was sold on June 2, without knowing whether or not it was defective on June 1, to justify its return, or became such on June 3, to make it unreturnable).

Here the event whose time of occurrence is known will be given precedence over the event whose time of occurrence is unknown, because the presumption of delayed occurrence of an event will not be applicable to an event whose time of occurrence is known; this knowledge prevents the application of the presumption to it. As to the event whose time of occurrence is unknown, the presumption of delayed occurrence is applicable to it because this principle is relied upon in instances of ignorance.

To sum up, if two events take place one whose time is known and the other whose time is unknown, the one whose time is known will be considered as having occurred earlier irrespective of whether the two events are of the same kind (e.g. the death of two persons, or the conclusion of two contracts) or of different kinds.

3. Where the judge is ignorant of the time of occurrence of both the events, there is no rule capable of determining the precedence or subsequence of either event, because there are no grounds for applying the principle of presumption to one of them as opposed to the other.

Therefore, the presumption of delayed occurrence of an event is applicable only where a single event has taken place, or where two events occur and the time of occurrence of one of them is known. But where both the events have no known time of occurrence and there is nothing to differentiate between the time of occurrence of the two, reliance on the principle of presumption becomes impossible.34

Victims of Drowning and Burial under Debris

At times, there are two close relatives who do not inherit from each other--e.g. two brothers who have children--; such a case does not come in the purview of our present discussion, for the inheritance of each is received by his own children, irrespective of his and his brother's death occurring simultaneously or successively.

At times, only one of the two decedents is entitled to inherit from the other (e.g. two brothers of whom only one has children). This situation is also outside our ambit of discussion (because the estate of the brother having children will be transferred to his children, and the estate of the childless brother will be transferred to his relatives, excluding the brother who has died along with him by drowning, fire, etc.).

This is because a condition of inheritance is that the heir be known to live at the time of death of the person being inherited (while in the above case we have no knowledge of the brother having children being alive at the time of the childless brother's death).35

There are other cases where both are entitled to inherit from each other (e.g. a son and a father; two brothers who do not have surviving parents and are childless; a couple, where the heirs of some of them are not those of the other).

This situation is the focus of our discussion, and the Imamiyyah legists lay down two conditions for the mutual inheritance of each from the other.

1. The deaths of both should be the result of a single cause, and should result specifically either by drowning or by being buried under fallen debris (such as where they are in a building which collapses upon them or in a boat which sinks with them). Hence if one of them dies by drowning and the other due to fire or the collapse of a building, or both die together in a plague or battle, they will not inherit mutually. Reportedly, the French law requires the unity of cause for mutual inheritance, but does not limit the causes to drowning and burial under debris, as observed by the Imamiyyah; rather, in that law, mutual inheritance also takes place if the cause of death is fire.

2. The time of death of both should be unknown; hence if the time of death of just one of them is known, only the one whose time of death is unknown will inherit.

To give an example, suppose a building collapses on a couple or a boat sinks with both aboard and during the rescue operations the husband is found taking his last breath at 5 o'clock. Two hours later the wife is found dead, and no one knows whether she died before, after or simultaneously with the husband. The time of death of the husband is known, while that of the wife is unknown. The principle of presumption of delayed occurrence of an event requires that the wife, whose time of death is unknown, inherit the husband whose time of death is known, while he is not entitled to inherit anything from her.

Where the situation is reversed, the time of death of the wife being known and that of the husband remaining unknown, the husband will inherit not the wife. In other words, where the time of death of only one of them is known, the person whose time of death is unknown inherits from the one whose time of death is known, without the latter inheriting from the former. As the right to inherit is limited to the person whose time of death is unknown, there is no difference made in this situation by the cause of death, and the result is the same irrespective of whether the cause of death is drowning, fire, burial under fallen debris, epidemic or war.

But if the time of death of both is unknown, such as where the couple is found dead without the time of death of any of them being known, both are entitled to inherit mutually; that is, each inherits from the other. This difference between a situation where the time of death of one of two decedents is known and where the time of death of neither is known, has neither been reported from any foreign law, nor have I found it in the books of the early and latter Sunni legists nor the early Shi'i legists. This difference is only mentioned in the works of jurisprudence (usul al-fiqh) of recent Shi'i mujtahidun.

To sum up, the Imamiyyah limit the scope of mutual inheritance to the situations where the cause of death is either drowning or falling debris and where the time of death of both the decedents is unknown. Accordingly, if both die natural deaths, or by fire or are killed in battle, or as a result of a plague, etc., mutual inheritance will not take place, and the estate of each decedent will be transferred to his own living heirs without any of the two decedents inheriting from the other.

And where the time of death of only one of them is known, the decedent whose time of death is not known will inherit from the one whose time of death is known, without the latter inheriting from the former.

The Mode of Mutual Inheritance

The method applied in mutual inheritance is that it is first assumed, in the example given above, that the husband died before the wife. Consequently, her share of his estate is separated and her heirs inherit her property which existed while she was alive, along with her share of her husband's estate that was added to it.

Then it is assumed that the husband died after the wife. Consequently, his share of her estate is separated and his heirs inherit his property which existed prior to his death, along with his share of the wife's estate which was added to it. None of the two will inherit from the property which each of them has inherited from the other.

Hence, if the wife possessed 100 liras and the husband 1000 liras, the wife inherits from his 1000 and the husband from her 100 only, because if one of them inherits from the property which the other has inherited from him, it will lead to a person inheriting a part of his own property after his death! And it is impossible for a person to inherit a thing which he has left to be inherited by another.

To sum up, if two mutual heirs die by drowning or being buried under falling debris, when neither the sequence of their deaths is known nor the time of death of one of them, according to the Imamiyya h, each of them will inherit from the other from the property each owned prior to death.

Illustrations

A study of the above discussion will show that in many cases the four Sunni schools exclude women and those related through them from inheritance. The daughter 's children, paternal aunts, uterine paternal uncles, the maternal grandfather, maternal uncles and maternal aunts are not entitled to inheritance in the presence of any of the residuaries who are relatives of the deceased through the father.

A full, or agnate, brother's daughter does not inherit with her own brother, and similarly a paternal uncle's daughter does not inherit with her own brother. Had there not been an explicit mention in the Qur'an of the inheritance of daughter, agnate sister, or sisters, and uterine brothers and sisters, their situation would have been similar to that of other female relatives and those related through them.

This was the practice during the Jahiliyyah during which the system of inheritance was biased in favour of males and the practice of restricting inheritance to the eldest son who bore arms and fought was prevalent. Where there was no child capable of bearing arms, they gave the inheritance to the relatives of the father.

The reader has observed throughout the discussion of the Sunni system of inheritance that a woman inherits only where her share has been specifically mentioned in the Qur'an or where qiyas leads to her being considered equal to a female sharer --such as where a son's daughter is considered equivalent to a daughter. Apart from this, women are deprived from inheritance.

The Imamiyyah have considered both males and females as equally entitled to inherit, and the following examples illustrate this.

1. Where the decedent has left behind a daughter and a full or an agnate brother:
The four schools: Daughter: 1/2 Brother :1/2
The Imamiyyah: The whole estate goes to the daughter to the exclusion of
the brother.

2. Where the heirs are a daughter and the mother:

The four schools: Mother: 1/6 Daughter: 3/6
The remaining 2/6 will be taken by the paternal grandfather if present, otherwise by the full brother, in their absence by the agnate brothers, and so on in the descending order of residuaries.
The Imamiyyah: Mother: 1/4 Daughter: 3/4
The residuaries receive nothing.

3. Where the deceased is survived by the parents and daughter's children:
The four schools: Mother (in the absence of a hajib): 2/6 Father:4/6
The daughter's children receive nothing.
The Imamiyyah: Mother: 1/6 Father: 2/6 Daughter's children: 3/6

4. Where a woman is survived by her parents and husband:
The four schools: Husband: 6/12 Mother: 2/12 Father: 4/12
The Imamiyyah: Husband: 3/6 Mother: 2/6 Father: 1/6

5. Where the heirs are the parents and a wife:
The four schools: Wife: 3/12 Mother: 3/12 Father: 6/12
The Imamiyyah: Wife: 3/12 Mother: 4/12 Father: 5/12

6. Where the father and daughter inherit:
The four schools: Father: 1/2 Daughter: 1/2
The Imamiyyah: Father: 1/4 Daughter: 3/4

7. Where the daughter and the paternal grandfather are present:
The four schools: Daughter: 1/2 Grandfather: 1/2
The Imamiyyah: The daughter inherits the whole estate to the exclusion of
the grandfather.

8. Where the decedent is survived by a wife, the mother, and the paternal grandfather:
The four schools: Wife: 3/12 Mother: 4/12 Grandfather: 5/12
The Imamiyyah: Wife: 1/4 Mother: 3/4
The grandfather receives nothing.

9. Where the decedent is survived by the paternal and maternal grandfathers:
The four schools: The whole estate is inherited by the paternal grandfather with the maternal grandfather receiving nothing.
The Imamiyyah: Paternal grandfather: 2/3 Maternal grandfather: 1/3

10. Where the decedent is survived by the maternal grandmother and the maternal grandfather:
The four schools: The whole estate is inherited by the maternal grandmother to the exclusion of the maternal grandfather.
The Imamiyyah: Maternal grandmother: 1/2 Maternal grandfather: 1/2

11. Where the decedent is survived by the maternal and paternal grandmothers:
The four schools: They will together inherit 1/6 which they will distribute equally, and the remainder will go to the highest in the order of residuaries, and in their absence it will revert to the grandmothers in the opinion of the Hanafi and Hanbali schools, and escheat to the bayt al-mal in the opinion of the Maliki and the Shafi’I schools.
The Imamiyyah: Maternal grandmother: 1/3 Paternal grandmother: 2/3

12. Where the decedent leaves behind a son's daughter and a daughter's daughter.
The four schools: The son's daughter is entitled to a half and the remainder is given to the residuary without anything being given to the daughter's daughter.
The Imamiyyah: Each one of them will take the share of the person through whom they are related;
Son's daughter: 2/3 Daughter's daughter: 1/3

13. Where the decedent leaves behind a daughter's son and a son's daughter:
The four schools: The son's daughter gets a half and the remaining half goes to the residuary, without the daughter's son receiving anything.
The Imamiyyah: Daughter's son: 1/3 Son's daughter: 2/3

14. Where the decedent leaves behind a daughter and a son's daughter:
The four schools: Daughter: 3/6 Son's daughter: 1/6
The remainder goes to the residuary.
The Imamiyyah: The daughter takes the whole estate to the exclusion of the son's daughter.

15. Where the decedent is survived by two daughters and a son's daughter:
The four schools: Two or more daughters receive two-thirds and the remainder goes to the residuary, with the son's daughter receiving nothing.
The Imamiyyah: The whole estate goes to the daughters.

16. Where the decedent leaves behind two daughters, son 's daughters and a son's son:
The four schools: The two daughters receive two-thirds and the remaining one-third goes to the son's daughters and son's son who distribute it with a male receiving twice the share of a female.
The Imamiyyah: The whole estate goes to the two daughters without the son's children receiving anything.

17. Where the decedent is survived by a daughter and a full or agnate sister:
The four schools: Daughter 1/2 Sister 1/2
The Imamiyyah: The whole estate goes to the daughter and the sister receives nothing

18. Where the decedent leaves behind 10 daughters and a full or agnate sister:

The four schools: Sister: 1/2 10 daughters: 1/2
The Imamiyyah: The 10 daughters are entitled to the whole estate without the sister receiving anything.

19. Where the decedent is survived by a daughter and a uterine brother:
The four schools: The daughter receives a half as the sharer and the remainder goes to the residuaries. The uterine brother receives nothing.
The Imamiyyah: The whole estate goes to the daughter.

20. Where the decedent leaves behind a daughter, a full or an agnate sister, and a full or an agnate paternal uncle:
The four schools: Daughter 1/2 Sister ½
The paternal uncle receives nothing.
The Imamiyyah: The daughter receives the whole estate.

21. Where the decedent is survived by a full or an agnate paternal uncle and a similar aunt:
The four schools: The uncle receives the whole estate to the exclusion of the aunt.
The Imamiyyah: Uncle: 2/3 Aunt: 1/3

22. Where the decedent leaves behind a daughter and a full or an agnate paternal uncle:
The four schools: Daughter: 1/2 Uncle: 1/2
The Imamiyyah: The whole estate goes to the daughter.

23. Where the decedent is survived by a daughter, a full or an agnate paternal uncle's son and a uterine paternal uncle:
The four schools: Daughter: 1/2 Uncle's son: 1/2
The uncle receives nothing.
The Imamiyyah: The whole estate goes to the daughter.

24. Where the decedent leaves behind maternal uncles and aunts and a full or an agnate paternal uncle's son:
The four schools: The paternal uncle's son receives the whole estate without the maternal uncles and aunts receiving anything.
The Imamiyyah: The maternal uncles and aunts will take the whole estate without the paternal uncle 's son receiving anything. The method of distributing the estate between the maternal uncles and the maternal aunts has been mentioned earlier while discussing their inheritance.

25. Where the decedent is survived by a paternal uncle's daughter and a full or an agnate paternal uncle's son:
The four schools: The whole estate goes to the paternal uncle's son without the paternal uncle's daughter receiving anything, even where she is the full sister of the paternal uncle's son.
The Imamiyyah: Uncle's daughter: 1/3 Uncle's son: 2/3

26. Where the decedent leaves behind a maternal grandfather and a full or an agnate paternal uncle:
The four schools: The paternal uncle takes the whole estate to the exclusion of the maternal grandfather.
The Imamiyyah: The whole estate is inherited by the grandfather to the exclusion of the paternal uncle.

26. Where the decedent is survived by a full or an agnate brother's son and five sons of another full or agnate brother.
The four schools: The estate will be divided according to the number of sons and not as per the number of fathers. Hence the estate will be divided into six parts with each receiving one part
The Imamiyyah: The estate will be divided into as many partss as there are fathers and not into as many parts as there are heirs; each will receive the share of the person through whom he is related to the deceased. Hence one brother's son will receive five-tenths and the other brother's five sons will together receive five-tenths, each getting one-tenth.

27. Where the decedent leaves behind a brother's son and a full or an agnate brother's daughter:
The four schools: The male will inherit not the female, even though she is his full sister.
The Imamiyyah: They inherit jointly, the male receiving twice a female's share.

These examples are enough to give a complete picture of the intrinsic difference between the rules of inheritance of the Imamiyyah and the rules of inheritance of the Sunni schools.

- 1. The author of al-Jawahir says: The preponderant (mashhur) opinion among the Imamiyyah legists is that those related through the mother do not inherit the compensation for involuntary homicide. As to the right to qisas it is inherited by all those who inherit the heritage excepting the husband and the wife, who, however, will inherit the compensation in lieu of qisas.

- 2. Al-Shaykh Ahmad Kashif al-Ghita, Safinat al-najat, bab al-wasaya.

- 3. This is the proof (dalil) mentioned by al-Sayyid al-Hakim in al-Mustamsak, bab kafan al-mayyit. Al-Shaykh Muhammad Abu Zuhrah, in al-Mirath 'inda al-Ja'fariyyah, writes: It is obvious in this situation that the right of the creditors relates to the property itself and supersedes all other rights to that property. Through this observation, the Shaykh attributes to the Imamiyyah a consensus concerning the preference of the right of the pledger over funeral expenses, while there is a difference of opinion among them on this issue, and neither of the two differing opinions is preponderant to justify the attribution of consensus.

- 4. There is a difference between the mazalim and usurped (maghasib) properties. The mazalim are those in which haram and halal wealth has been mixed and the owner is unable to discern due to his ignorance, while the maghasib properties have a known owner. The mazalim also differ from those properties whose owners are not known (majhul al-malik), because in the latter the ignorance is concerning the property itself and its being mixed with other property is not necessary. The rule for the mazalim is to give them away as charity (sadaqah) on behalf of its (real) owner when there is no hope of finding him.

- 5. Al-Sayyid al-Hakim in Mustamsak al-'Urwah, vol. VII, mas'alah 83, says: This--i.e. pro rata distribution--is customary among us, and this is what is required by the principle of not preferring something without a cause for such preference (tarjih bila murajjih) as well as the tradition of the Prophet (S): "The debt due to God is better entitled to repayment," is understood not to imply a difference (between the debts due to God and the debts due to people); rather it solely explains that it is wajib to fulfil haqq Allah and that neglecting it is not permissible.

- 6. The word 'Muslim' includes all those who pray facing towards the Ka'bah (ahl al-qiblah). Hence a Sunni inherits from a Shi'i and vice versa, in accordance with Qur'anic nass, the Sunnah, and ijma'. Rather, this rule is among the essentials of the faith, exactly like the wujub of salat and fasting.

- 7. Al-Murtadd 'an fitrah is a born Muslim who apostatizes. Al-Murtadd 'an millah is one born to kafir parents who then becomes a Muslim and later deserts his faith.

- 8. I believe that there is no one today who considers 'Ali ('a) and his descendants to possess divinity and that this sect has become extinct. I have myself visited those places in Syria which are inhabited by the 'Alawis, who are accused of holding such beliefs. I lived among them for a few days and travelled from one village to another in their region. I saw them following Islamic practices like all other Muslims, without the least difference. What do we say about one who proclaims from the ma'adhin at the times of prayer "La ilaha ilia Allah, Muummad rasal Allah"? Is not negating the divinity of all except Allah contrary to accepting the divinity of others? Then how is it correct to attribute ghuluw to them, when God has said:
وَلَا تَقُولُوا لِمَنْ أَلْقَىٰ إِلَيْكُمُ السَّلَامَ لَسْتَ مُؤْمِنًا

And do not say to anyone who offers you peace: 'You are not a believer'? (4:94)

- 9. This when he can acquire knowledge of the facts but neglects to do so. But one incapable of acquiring such knowledge is excusable.

- 10. The author of al-Jawahir has narrated from a large number of Imami legists that a culprit in an unintentional homicide is prevented from inheriting the compensation, without being prevented from inheriting from the remaining heritage.

- 11. 'Abd al-Muta'al al-asa’idi, al-Mirath fi al-Shari 'at al-'lsllimiyyah, 5th ed., p. 14.

- 12. 'Asabiyyah is of two types, related to nasab or sabab, and by sabab is meant the wila' of the manumitter and his children.

- 13. A single daughter and daughters, according to the Imamiyyah inherit as sharers as well as by 'return,' similarly, a single sister and sisters. But a son's daughter/daughters take the share of the person through whom they are related, that is the son.

- 14. These three categories of heirs are natural, because there is no intermediary between the decedent and his/her parents and children; hence they belong to the first category. Subsequently, after them, come the brothers/sisters and the grandparents, because they are related to the decedent through a single intermediary, the parents; hence, they belong to the second category. After them is the category of the paternal and maternal uncles/aunts, because they are related to the decedent through two intermediaries, i.e. the grandfather or the grandmother, and the father or the mother; hence they belong to the third category.

- 15. Al-Shaykh Abu Zuhrah, in al-Mirath 'inda al-Ja'fariyyah, has dealt with the proofs mentioned by the Imamiyyah refuting ta'sib, but he has not mentioned this argument of theirs.

- 16. Full or consanguine sisters are residuaries with a daughter, and jointly share the estate with her like the full or consanguine brothers.

- 17. The famous and great Tabi'i faqih who has been highly eulogized by the Sunni 'ulama'. He had met ten Sahabah.

- 18. The paternal grandmother does not exclude a distant maternal grandmother in the opinion of the Shafi'i and the Mliki schools (e.g. the father's mother with the mother's mother's mother), while in the opinion of the Hanafi and the Hanbali schools she is excluded. (al-Sa’idi’s al-Mirath fi al-Shari’at al-Islamiyyah)

- 19. The schools differ regarding the signs of life, whether it is the making of sounds or movement (crying or breast-feeding). That which is important is that life be proved in any possible manner. Hence, if it is proved that the child was born unconscious and possessed life, he will doubtlessly inherit.

- 20. This is the earlier opinion of al-Shafi'i; his latter opinion is that a divorcee of a revocable divorce inherits during 'iddah, while a divorcee of an irrevocable divorce does not.

- 21. The rule that one who is related through another is excluded by the other, is fully accepted by the Imamiyyah, while the Sunni schools consider the uterine brothers an exception. Hence, according to them, they inherit with the mother though they are related through her. The Hanbalis are of the opinion that a paternal grandmother inherits along with the father, i.e. along with her son. (al-Mughni, 3rd. ed., vol. 6, p. 211)

- 22. According to the Sunni schools, the mother will receive one-sixth if the decedent has children or son's children, how lowsoever. As regards the daughter's children, their presence or absence is of no effect and they do not stop the mother from inheriting more than one-sixth. According to the Imamiyyah, the daughter's children are like one's own children. Hence, the daughter's daughter is considered a child who excludes the mother from inheriting more than one-sixth, exactly like a son.

- 23. Kashif al-haqa’iq fi sharh Kanz al-daqa’iq, vol. 2, and al-‘Iqna’ fi hall alfaz Abi Shuja, vol. 2, bab al-fara’id.

- 24. See al-Jawahir, al-Masalik and other books on Imami fiqh. The whole text quoted here is from al-Shaykh Ahmad Kashif al-Ghita’s Safinat al-najat, which I have preferred to the text of my own book al-Fusul al-Shar'iyyah, because it is more lucid and comprehensive.

- 25. Regarding the inheritance of brothers and sisters in the presence of the paternal grandfather, the Sunni schools differ among themselves. This is discussed in the part on grandparents of this section.

- 26. A “sahih” grandfather, in the terminology of Sunni fuqaha', is one between whom and the decedent no female intervenes (e.g. the father's father), and a sahih grandmother is one between whom and the decedent no "fasid" grandfather intervenes (e.g. the mother's mother). The intervening of a "fasid" grandfather (e.g. the mother's father's mother) makes the grandmother also a "fasid" grandmother.

- 27. According to the Sunni schools, a daughter excludes uterine brothers and sisters from inheritance, though not full or agnate brothers and sisters, despite their opinion that where a sharer and a residuary are present, the distribution will start with the sharer and the remainder will go to the residuary, and a uterine brother or sister is included in sharers while full and agnate brothers or sisters are residuaries. Hence it was obligatory here that the daughter not exclude a uterine brother and sister, or if she were to affect such exclusion, to exclude all kinds of brothers and sisters as observed by the Imamiyyah.

- 28. The Ima miyyah do not give the return to a uterine brother or sister where they jointly inherit with a full or agnate brother or sister; the return goes only to the latter.

- 29. On the basis that full or agnate brother's sons are regarded as residuaries and the brother's daughters as distant kindred, the four schools concur that if the decedent leaves behind a full or agnate brother's son who is accompanied by his own full sister, he takes the whole estate to her exclusion.

- 30. They don't inherit only with the paternal uncle's daughters; their presence is similar to their absence in the presence of paternal uncle's sons. Therefore, the four schools concur that if a decedent is survived by a full or agnate paternal uncle's son accompanied by the latter's own full sister, he will be entitled to the whole estate to her exclusion.

- 31. The Sunni fuqaha' have extensively discussed about distant kindred, whom they consider a third category of heirs after the sharers and the residuaries. They mention different situations and conditions, which cannot be recorded, enumerated and comprehended easily. Hence the instances mentioned here suffice to present a general outline of them. Those interested in details should refer to al-Mughni, 3rd ed. vol. 6, and al-Sa'idi's Kitab al-mirath fi al-Shari'at al-'Islamiyyah.

- 32. According to the authors of al-Masalik and al-Jawahir, the preponderant opinion among Shi'i fuqaha' is that the decedent's property will not be distributed until after confirming his death, either by tawatur, testimony, or by a report supported by indications capable of leading to such knowledge, or by the expiry of a period after which a like person does not generally stay alive.

- 33. Al-Shi'rani, vol. 2, Kitab al-mizan, bab al-'irth.

- 34. The details of this will be found in the books of usul al-fiqh of the Imamiyyah (bab tanbihat al-‘istishab); of these is the popular al-Rasa'il of al-Shaykh al-'Ansari, Taqrirat al-Na'ini of al-Sayyid al-Khu'i , and Hashiyat al-Rasa’il of al-Shaykh al-'Ashtiyani.

- 35. See Miftah al-Karamah, al-Masalik, and al-Lum'ah.

10. Waqf

Waqf

‘Wuquf’ and ‘awqaf’ are the plurals of ‘waqf’ and its verb is ‘waqafa’, though ‘awqafa’ is also rarely used, as in al-Tadhkirah of al-Allamah al-Hilli. The word 'waqf' literally means 'to detain' and 'to prevent', as in ‘wuqiftu 'an sayri’, i.e. 'I was prevented from making my journey.'

In the context of the Shari'ah it implies a form of gift in which the corpus is detained and the usufruct is set free. The meaning of 'detention' of the corpus is its prevention from being inherited, sold, gifted, mortgaged, rented, lent, etc. As to dedication of the usufruct, it means its devotion to the purpose mentioned by the waqif (donor) without any pecuniary return.

Some legists consider waqf to be illegal in the Islamic Shari'ah and regard it as contradictory to its basic principles except where it concerns a mosque. But this view has been abandoned by all the schools of fiqh.

Perpetuity and Continuity

All schools, excepting the Maliki, concur that a waqf is valid only when the waqif intends the waqf to be perpetual and continuous, and therefore it is considered a lasting charity. Hence if the waqif limits its period of operation (such as when he makes waqf for 10 years or until an unspecified time when he would revoke it at his own pleasure, or for as long as he or his children are not in need of it, etc.) it will not be considered a waqf in its true sense.

Many Imami legists hold that such a condition nullifies the waqf, though it will be considered as valid habs (detention)1 if the owner of the property intends habs. But if he intends it to be a waqf, it will be void both as waqf as well as habs. By a valid habs is meant that the usufruct donated by the owner for a particular object will be so applied during the period mentioned and return to him after the expiry of that period.

However, this is not something which contradicts the provisions of perpetuity and continuity in waqf, although al-Shaykh Abu Zuhrah has made a confusion here due to his inability to appreciate the difference between waqf and habs in Imami fiqh. Consequently he has ascribed to them the view that perpetual and temporary waqf are both valid. This is incorrect, because according to the Imamiyyah a waqf can only be perpetual.

The Malikis say: Perpetuity is not necessary in waqf and it is valid and binding even if its duration is fixed, and after the expiry of the stipulated period the property will return to the owner.
Similarly, if the waqif makes a provision entitling himself or the beneficiary to sell the wuquf property, the waqf is valid and the provision will be acted upon (Sharh al-Zarqani, vol. 7, ‘bab al-waqf’).2

If a waqf is made for an object which is liable to expiry (such as a waqf made for one's living children, or others who are bound to cease existing) will it be valid? Moreover, presuming its validity, upon whom will it devolve after the expiry of its object?

The Hanafis observe: Such a waqf is valid and it will be applied after the expiry of its original object to the benefit of the poor.

The Hanbalis say: It is valid and will thereafter be spent for the benefit of the nearest relation of the waqif. This is also one of two opinions of the Shafi'is.

The Malikis are of the opinion that it is valid and will devolve on the nearest poor relation of the waqif, and if all of them are wealthy, then on their poor relatives (al-Mughni, al-Zarqani, and al-Muhadhdhab).

The Imamiyyah state: The waqf is valid and will devolve on the heirs of the waqif (al-Jawahir).

Delivery of Possession

Delivery of possession implies the owner's relinquishment of his authority over the property and its transfer to the purpose for which it has been donated. According to the Imamiyyah, delivery is a necessary condition for the deed of waqf to become binding, though not for its validity. Therefore, if a waqif dedicates his property by way of waqf without delivering possession, he is entitled to revoke it.

If a waqif makes a waqf for public benefit (e.g. a mosque or a shrine or for the poor), the waqf will not become binding until the custodian (mutawalli) or the hakim al-shar' takes possession of the donated property, or until someone is buried in the donated plot of land, in the case of a graveyard, or prayers are offered in it, if it is a mosque, or until a poor person uses it with the permission of the waqif, in a waqf for the benefit of the poor. If delivery is not effected in any of the above-mentioned forms it is valid for a waqif to revoke the waqf.

If a waqf is made for a private purpose, such as for the benefit of the waqif' s children, if the children have attained majority, it will not become binding unless they take possession of it with his permission, and if they are minors the need for giving permission does not arise because the waqif's possession of it as their guardian amounts to their having taken possession.

If the waqif dies before possession has been taken, the waqf becomes void and the property assigned for waqf will be considered his heritage. For example, if he makes the charitable waqf of a shop and dies while it is still in his use, it will return to the heirs.

The Malikis say: Sole taking possession does not suffice and it is necessary that the donated property remain in the possession of the beneficiary or the mutawalli for one complete year. Only after the completion of one year will the waqf become binding and incapable of being annulled in any manner.

The Shafi'is and Ibn Hanbal in one of his opinions, state: A waqf is completed even without delivering possession; rather, the ownership of the waqf will cease on the pronouncement of waqf (Abu Zuhrah, Kitab al-waqf).

Ownership of the Waqf Property

There is no doubt that prior to donation the waqf property is owned by the waqif, because a person cannot make waqf of a property that he does not own. The question is whether, after the completion of the waqf, the ownership of the property remains with the waqif, with the difference that his control over its usufruct will cease, or if it is transferred to the beneficiaries. Or does the property become ownerless, being released from ownership?

The legists hold different opinions in this regard. The Malikis consider it to remain in the ownership of the waqif, though he is prohibited from using it.
The Hanafis observe: A waqf property has no owner at all, and this is the more reliable opinion according to the Shafi'i school.3 (Fath al-Qadir, vol.5, ‘bab al-waqf’; Abu Zuhrah, Kitab al-waqf)

The Hanbalis say: The ownership of the waqf property will be transferred to the beneficiaries.

Al-Shaykh Abu Zuhrah (1959, p.49) has ascribed to the Imamiyyah the view that the ownership of the waqf property remains with the waqif. He then observes (p.106): This is the preponderant view of the Imamiyyah.

Abu Zuhrah does not mention the source relied upon by him for ascribing this view, and I do not know from where he has extracted it, for it has been mentioned in al-Jawahir, which is the most important and authentic source of Imami fiqh. According to most legists, when a waqf is completed, the ownership of the waqif ceases; rather, it is the preponderant view and the authors of al-Ghunyah and al-Saria'ir have even reported an ijma' on this view.

Though all or most Imami legists concur that the ownership of the waqif ceases, they differ as to whether the waqf property totally loses the characteristic of being owned (in a manner that it is neither the property of the waqif, nor of the beneficiaries. and, as the legists would say, is released from ownership) or if it is transferred from the waqif to the beneficiaries.

A group among them differentiates between a public waqf (e.g. mosques, schools, sanatoriums, etc.) and a private waqf (e.g. a waqf for the benefit of one's descendants). The former is considered as involving a release from ownership and the latter a transfer of ownership from the waqif to the beneficiary.

The difference of opinion regarding the ownership of waqf property has practical significance in determining whether the sale of such property is valid or not, and in the case where a waqf is made for a limited period or for a terminable purpose. According to the Maliki view that the waqf remains the waqif's property, its sale is valid and the corpus will return to the waqif on expiry of the period of waqf or when the object for which the waqf was made terminates. But according to the view which totally negates the ownership of waqf property, its sale will not be valid, because only owned property can be sold, and a waqf for a limited period will also be invalid.

According to the view which considers the ownership of waqf property as transferred to the beneficiaries, the property will not return to the waqif. The consequences of this difference will be more obvious from the issues to be discussed below. It is necessary to understand this divergence of viewpoints because it affects many issues of waqf.

The Essentials of Waqf

There are four arkan (essentials) of waqf: (1) the declaration (al-sighah) (2) the waqif (3) the property given as waqf (al-mawqufah) (4) the beneficiary (al-mawquf 'alayh).

The Declaration

There is a consensus among all the schools that a waqf is created by using the word ‘waqaftu’ (I have made a waqf), because it explicitly signifies the intention of waqf without needing any further clarification. They differ regarding the creation of waqf by the use of such words as ‘habastu’ (I have detained), ‘sabbaltu’ (I have donated as charity), ‘abbadtu’ (I have perpetually settled) etc., and go into needless details.

The correct view is that a waqf is created and completed by using any word which is capable of proving the intention of creating a waqf, even if it belongs to another language, because here words are means of expressing one's intention, not an end in themselves.4

Al-Mu'atat (The creation of Waqf without the Sighah)

Is a waqf completed by an act (such as when someone makes a mosque and calls the people to pray in it, or allows burials to take place in a piece of land with an intention of making it a waqf for a graveyard) without one uttering 'waqaftu' or ‘habastu’ or similar words, or is it necessary that the declaration take place, the act by itself being insufficient?

The Hanafi, Maliki and Hanbali schools say: An act by itself is sufficient and the property becomes, consequent to the act, a waqf (Ibn Qudamah's al-Mughni, vol.5, ‘bab al-waqf’; Sharh al-Zarqani 'ala Mukhtasar Abi Diya', vol.7, ‘bab al-waqf’).

A group of major Imami scholars also holds this view, including al-Sayyid al-Yazdi in his work Mulhaqat al-'Urwah, al-Sayyid Abu al-Hasan al-Isfahani in Wasilat al-najat and al-Sayyid al-Hakim in Minhaj al-Salihin. Al-Shahid al-Awwal and Ibn Idris have also been reported to hold this view.

The Shafi'is observe: A waqf is completed only by the recital of the sighah (al-Mughni, vol.5).

Acceptance

Does waqf require acceptance or is its declaration as waqf (by the waqif) sufficient? In other words, is waqf created by a single decision, or is it necessary that there be two concurrent decisions?

In this context the legists have divided waqfs into public (in which the waqif has no specific beneficiary in his mind, e.g. waqfs made for the poor and waqfs of mosques and shrines) and private waqfs (e.g. a waqf made for the benefit of one's children).

The four Sunni schools concur that a public waqf requires no acceptance, and according to the Malikis and most Hanafi legists a private waqf, like a public one, requires no acceptance.

The Shafi'is incline towards the necessity of acceptance (al-Hisni al-Shafi'i, Kifayat al-akhyar, vol.1, ‘bab al-waqf’; Abu Zuhrah, Kitab al-waqf, p. 65, 1959 ed.).
The Imami legists differ among themselves, holding one of the following three opinions:

1. Necessity of acceptance in both public and private waqfs.
2. Absence of such necessity in both kinds of waqfs.
3. A distinction is made between a public and private waqf, and acceptance is necessary only in the latter. This is the same view which the Shafi'is have favoured, and is also the correct one.5

Al-Tanjiz

The Malikis observe: It is valid for a waqf to depend upon a contingency. Therefore, if the owner says: "When such and such a time comes, my house will become a waqf," it is valid and the waqf is completed (Sharh al-Zarqani 'ala Mukhtasar Abi Diya', vol. 7, ‘bab al-waqf’).

The Hanafi and the Shafi'i schools state: It is not valid to make a waqf contingent on the occurrence of an event; rather, it is wajib that waqf be unconditional, and if it is made to depend upon a contingency, as in the above-mentioned example, it will remain the property of the owner (Shirbini's al-'lqna’, vol. 2, ‘bab al-waqf’; Fath al-Qadir, vol. 5, ‘kitab al-waqf’).

I don't know how these two schools allow divorce to depend upon a contingency, while they disallow similar dependence in other spheres of fiqh, despite the fact that caution and stringency are more necessary in marital issues when compared to other issues.

The Hanbalis say: A waqf can be made contingent on the occurrence of death. Apart from this, dependence on any other contingency is invalid (Ghayat al-muntaha, vol. 2, ‘bab al-waqf’).

Most Imami legists consider tanjiz (its being unconditionally operational) as wajib and do not permit its being made contingent on a future event. (al-'Allamah al-Hilli, al-Tadhkirah, vol. 2; al-Jawahir, vol. 4; and Mulhaqat al-'Urwah, ‘bab al-waqf’ ).6 Therefore, if a person says: "When I die, this property will become a waqf," it will not become a waqf after his death. But if he says: "After my death, make this property a waqf," it will be considered a will for creating a waqf and the executor of the will will be responsible for creating the waqf.

Al-Waqif

The schools concur that sanity is a necessary condition for the creation of a waqf. Therefore, a waqf created by an insane person is not valid, because the Shari'ah does not burden him with any duty and does not attach any significance to his decisions, words or deeds.

The schools also concur upon maturity as a necessary condition. This implies that a waqf created by a child, irrespective of his being discerning or not, is invalid, and neither is the guardian entitled to create a waqf on his behalf, nor the waqif empowered to act as a guardian in this regard or to allow the creation of such a waqf. Some Imami legists consider a waqf created by a child over ten years as valid, but most of them oppose this view.

An idiot is also incapable of creating a waqf, for it is a disposition of property and an idiot is not authorized to carry out acts of such a nature.7 The Hanafis say: It is valid for an idiot to bequeath one-third of his wealth provided that the bequest is for charitable purposes, irrespective of whether it is in the form of a waqf or otherwise (al-Fiqh 'ala-madhahib al-'arba’ah, vol.2, ‘bab mabhath al-hajr ‘ala al-safih’).

Niyyat al-Qurbah

There is no doubt that the intention of creating a waqf is necessary for its creation. Hence if a declaration signifying the creation of waqf is made by a person who is intoxicated, unconscious, or asleep, or is made in jest, the recital will be void, because of the principle of unchanged status of the ownership of the property.

The schools differ on the question as to whether niyyat al-qurbah (the intention to seek God's good-pleasure) is a necessary condition like sanity and puberty (so that if a waqif makes a waqf for a worldly motive it would fail to be operative) or if it becomes operative without it.

The Hanafis say: Qurbah is a necessary condition and requires to be fulfilled, either presently or ultimately; i.e. the property donated should necessarily be used for charitable purposes, either from the time of creation of the waqf or at a later date; e.g. when one makes a waqf for the benefit of some wealthy people presently alive, and after them, for the benefit of their destitute descendants (Fath al-Qadir).8

Malik and the Shafii'is observe: Niyyat al-qurbah is not necessary in a waqf (Abu Zuhrah, Kitab al-waqf, p.92 ff.).

The Hanbalis state: It is necessary that waqf be made for a pious, spiritual purpose (e.g. for the poor or for mosques, bridges, books, for relatives, etc.,) because the Shari’ah has created the institution of waqf for acquiring spiritual reward, otherwise the purpose for which it was incorporated in the Shari'ah is not achieved (Ibn Dawayan, Manar al-sabil, p.6, 1st ed.).

From among the Imamiyyah, the authors of al-Jawahir and Mulhaqat al-‘Urwah observe: Qurbah is not a condition for the validity of waqf, or for taking its possession, rather it is essential for acquiring its spiritual reward. Therefore a waqf is completed without the presence of a spiritual motive.

Death Illness

An illness resulting in death or generally capable of causing it is called death illness (marad al-mawt).

All the schools concur that if a person in such an illness makes a waqf of his property, it will be valid and will be created from the bequeathable third, and if it exceeds this limit the consent of the heirs is necessary regarding the excess.

Summarily, all those conditions required of a seller (e.g. sanity, puberty [bulugh], maturity [rushd], ownership, absence of a legal disability, such as insolvency or idiocy) are also necessary for a waqif.

Al-Mawquf

The schools concur that a mawquf property should fulfil all the conditions required of a saleable commodity, that it should be a determinate article owned by the waqif. Therefore the waqf of a receivable debt or an unspecified property (such a when the owner says 'a field from my property' or 'a part of it') or that which cannot be owned by a Muslim (e.g. swine) is not valid. The schools also concur that the mawquf should have a usufruct and must not be perishable. Hence that which cannot be utilized except by consuming it (e.g. eatables) will not be valid as a waqf. To this class also belongs the waqf of usufruct; therefore, if a tenant makes a waqf of the usufruct of a house or land which he has rented for a specific period, it will not be valid, because the notion of waqf as something in which the property is detained and its usufruct dedicated for a charitable purpose is not fulfilled here.

There is consensus as well regarding the validity of waqf of immovable property, e.g. land, building, orchard, etc.

All the schools, excepting the Hanafis, concur on the validity of waqf of movable property, such as animals, implements and utensils, for they can be utilized without being consumed.

According to Abu Hanifah, the waqf of movable property is not valid. But of his two pupils, Abu Yusuf and Muhammad, the former accepts the waqf of movable property provided it is attached to an immovable property (for instance, cattle and implements attached to an agricultural land) and the latter limits its validity to the weapons and horses used in war (Fath al-Qadir, vol.5, and Sharh al-Zarqani, vol.7).

The schools further concur that it is valid to make waqf of an inseparate share (musha’) in a property (e.g. an undivided half or one-fourth or one-third) except where it is a mosque9 or graveyard, because these two are incapable of being jointly owned (al-'Allamah al-Hilli, in al-Tadhkirah; al-Shi'rani in al-Mizan; Muhammad Salam Madkur in al-Waqf).

According to the author of Mulhaqat al-‘Urwah, a work on Imami fiqh, the waqf of the following forms of property is not valid: 1) mortgaged property; (2) property whose possession cannot be delivered (for instance, a bird in the sky and a fish in water, even if they are owned by the waqif); (3) a stray animal; (4) usurped property which the waqif or the beneficiary are unable to recover; but if this property is made a waqf for the benefit of the usurper the waqf is valid because the condition of possession is achieved.

The Beneficiary (al-Mawquf 'Alayh)

Al-mawquf 'alayh is the person entitled to the proceeds of the waqf property and its usufruct. The following requirements must be fulfilled by the beneficiary:

1. He should exist at the time of the creation of the waqf. If he does not (as when a waqf is created for a child to be born later), the Imami, Shafi'i and Hanbali schools consider the waqf as invalid, while the Maliki school regards it as valid. It is stated in Sharh al-Zarqani 'ala’ Mukhtasar Abi Diya': A waqf in favour of a child to be born in the near future is valid, though it will become binding only on its birth. Therefore, if it is not conceived or miscarries, the waqf will become void.

According to all the schools, when the beneficiary ceases to exist after having existed at the time of the creation of waqf, the waqf is valid (as when a person creates a waqf for his existing children and their future descendants). Regarding a waqf in favour of a foetus, the Shafi'i, Imami and Hanbali schools consider it invalid, because a foetus is incapable of owning property until it is born alive. This principle is not negated by the allocation of a share in inheritance for an unborn child in anticipation of its birth and by the validity of a bequest in its favour, because these two instances have specific proofs for their validity. Furthermore, the allocation of a share in inheritance for an unborn child is meant to safeguard its right and to avoid the complications which would arise as a result of redistribution.

2. He should be capable of owning property. Hence it is neither valid to create a waqf nor to make a bequest in favour of an animal, as done by Westerners, especially women, who bequeath part of their wealth to dogs. Regarding the waqf of mosques, schools, sanatoriums etc., it is actually a waqf in favour of the people who benefit from them.

3. The purpose of the waqf should not be sinful (as it would be when made for a brothel, or a gambling club, pub or for highwaymen). As to a waqf made in favour of a non-Muslim, such as a dhimmi, there is consensus about its validity, in accordance with this declaration of God Almighty:

لاَ يَنْهَاكُمْ اللَّهُ عَنْ الَّذِينَ لَمْ يُقَاتِلُوكُمْ فِي الدِّينِ وَلَمْ يُخْرِجُوكُمْ مِنْ دِيَارِكُمْ أَنْ تَبَرُّوهُمْ وَتُقْسِطُوا إِلَيْهِمْ انَّ اللهَ يُحِبُّ المُقسِطين

God does not forbid you respecting those who have not waged war against you on account of your religion and have not driven you forth from your homes, that you show them kindness and deal with them justly. Verily, Allah loves the doers of justice. (60:8)

The Imami legist al-Sayyid Kazim al-Yazdi observes in the chapter on waqf of his book Mulhaqat al-'Urwah: "...Rather, it is also valid to create a waqf in favour of a harbi and to show kindness to him in order to encourage him to righteous conduct."

Al-Shahid al-Thani, in al-Lum'ah al-Dimashqiyyah, bab al-waqf, states: "A waqf in favour of dhimmis is valid, because it is not sin and also because they are creatures of God and a part of humanity which has been honoured by Him." He adds: "It is not valid to create a waqf in favour of any of the Khawarij or Ghulat,10 because the former charge Amir al-Mu'minin 'Ali ('a) with unbelief and the latter ascribe divinity to him, while the middle path is the right one, as mentioned by 'Ali ('a) himself:

هلك فيَّ اثنان: مبغض قالٍ، ومحبٌّ غال

Two kinds of people will perish concerning me: the one who hates me and the other who goes to the extreme in his love for me.

4. The beneficiary should be specifically known. Thus a waqf created in favour of an unidentified man or woman will be void.

The Malikis say: A waqf is valid even if the waqif does not mention the purpose of the waqf. Hence if he says: "I dedicate this house of mine as waqf, without adding anything else, the waqf will be valid and its usufruct will be spent for charitable purposes (Sharh al-Zarqani ‘ala Abi Diya’).

The Imami, Shafi and Maliki schools observe: It is not valid for a waqif to create a waqf for the benefit of his own person or to include himself among its beneficiaries, because there is no sense in a person transferring his property to himself. But if, for instance, he makes a waqf in favour of the poor and later becomes poor himself, he will be considered one of them, and similarly if he creates a waqf in favour of students and later becomes a student himself.

The Hanafi and Hanbali schools, however, permit such a waqf (al-Mughni; Abu Zuhrah, al-Shi'rani's al-Mizan; Mulhaqat al-'Urwah).

A Waqf for prayers (al-waqf 'ala al-salat)

The invalidity of a waqf created for the waqif's benefit reveals the invalidity of a large number of such waqfs in the villages of Jabal (Lebanon) which have been created by their waqifs to meet the expenses of the prayers to be offered posthumously on their behalf. This is so even if we accept the validity of a proxy reciting mustahabb salat on behalf of the dead - aside from its validity with respect to the wajib salat - because it is in fact a waqf in one's own favour.

Doubts Concerning Waqf

The Imami author of al-Mulhaqat observes: If a doubt arises as to which among two persons is the beneficiary, or which among two purposes is the intended object of the waqf, the solution is effected by drawing lots or by effecting a 'compulsory compromise.' (al-sulh al-qahri). 'Compulsory compromise' means distribution of the usufruct among the two parties or purposes.

If the purpose of the waqf is unknown and we do not know whether it is for a mosque or for the poor or for some other purpose, the waqf will be applied to charitable purposes.

If a doubt arises as to which of two properties is subject of waqf (such as where we know the existence of a waqf, but are not certain whether it relates to the waqif's house or shop) resort will be made to drawing lots or to a compulsory compromise; i.e. a half of both the house and the shop will be treated as waqf.

Conditions of a Waqif and His Pronouncement

The Waqif‘s Intention

If a waqf is a gift and a charity, the waqif is the giver of that gift and charity, and it is obvious that any sane and mature adult free of financial disability is free to grant from his property whatever he wishes to anyone in any manner he chooses. It is stated in the hadith:

الناس مسلّطون على أموالهم

People have been given full authority over their properties, and one of the Imams ('a) has said:

للوقوف بحسب ما يقفها أهلها

Waqfs are to be managed in a manner provided by their waqifs.

Accordingly, the legists say: The conditions laid down by the waqif are like the words of the Lawgiver, and his pronouncements are like His pronouncements as regards the obligation of following them. Similar is the case of a nadhir, halif, musi and muqirr.11

Consequently, if the intention of the waqif is known (that he had a specific intention and none else), it will be followed even if it is against the commonly understood meaning of his words. For instance, if we know that he intends by the words 'my brother' a particular friend of his the waqf will be given to the friend, not to his brother. This is because usage is valid as a means of determining one's intention, and where we already know the intention, the usage loses its significance. But if we are unaware of the intention, the usage is followed, and if there is no particular usage concerning it and nothing special is understood from the words of the waqif, the literal meaning will be resorted to, exactly like the procedure applied regarding the words of the Qur'an and the Sunnah.

The Permissible Conditions

We had observed that a waqif meeting all the conditions is entitled to lay down conditions of his choice. Here we mention the following exceptions.

1. A condition is binding and enforceable when it is contiguous to the creation of waqf and occurs along with it. Thus, if the waqif mentions it after completing the deed, it will be null and void, because the waqif has no authority over the waqf property after its ownership has passed on from him.

2. He may not lay down a condition which contradicts the nature of the contract (for instance, the condition that the ownership of the waqf property will be retained by him, so that he could pass it on as inheritance to his heirs, or sell it, or gift it or rent it or lend it if he so intends). The presence of such a condition implies that it is and is not a waqf at the same time. Because the presence of such a condition abrogates the deed creating the waqf, the waqf will be left without a deed, while the presumption is that it is not executed without a deed. In other words, such a waqif is similar to the seller who declares: "I sell this to you on the condition that its ownership will not be transferred to you and that its consideration will not be transferred to me." This is the reason why the legists have concurred that every condition contrary to the contract, apart from being void, also nullifies the contract.

But the famous legist al-Sinhuri mentions in his compilation of select laws from Islamic fiqh that the Hanafis exclude mosques from the above rule. Hence a void condition does not nullify its waqf, while in waqfs other than for mosques such a condition is void and also nullifies the waqf (Madkur's al-Waqf).

3. The condition should not oppose any rule of the Islamic Shari'ah. For instance, it should not require the performance of a prohibited or the omission of an obligatory act. It is mentioned in the hadith:

مَن اشترط شرطاً سوى كتاب الله عزّ وجلّ فلا يجوز ذلك له ولا عليه

He who lays down a condition contradicting the Book of God Almighty, it will neither be valid for him nor against him.

One of the Imams (A) states:

المسلمون عند شروطهم، إلاّ شرطاً حَرَّم حلالاً أو أحلّ حراماً

Muslims are bound by the conditions that they lay down, except those which prohibit a halal or permit a haram.

Excepting the above-mentioned kind, all other conditions mentioned at the time of the deed that neither contradict its spirit nor any rule of the Book and the Sunnah are valid and their fulfilment is wajib by consensus (for instance if the waqif lays down the condition that a home is to be built for the poor from the agricultural produce of the waqf or if it is to be spent on the scholars, etc). Summarily, the waqif, like anyone else, is required to base all his dispensations on the principles of logic and the Shari'ah, irrespective of whether they pertain to waqf or matters of diet, travel. etc. Therefore, if his act is in accordance with the Shari'ah and reason, it is wajib to respect it, not otherwise.

The Contract and This Condition

There is no doubt that a void condition, whatever its form, does not require to be fulfilled. It is also evident that a void condition which is contrary to the spirit of a contract nullifies the contract itself. Hence there is consensus regarding its being void in itself and its nullifying effect extending beyond itself, without there being any difference between waqf and other forms of contract in this regard.

The schools differ regarding a condition which is contrary to the Book and the Sunnah without going against the spirit of the contract (for instance, when a person makes his house a waqf in favour of Zayd on condition that he perform haram acts in it or abstain from performing wajib duties), as to whether the invalidity of this condition necessitates the annulment of the contract as well (so that the carrying out of the contract is not necessary, in the same way as fulfilment of the condition is not necessary), or if the invalidity would be limited to the condition.

According to the Hanafis, as mentioned by Abu Zuhrah in Kitab al-waqf, p.162: The conditions which contradict the regulations of the Shari'ah are void, while the waqf is valid. It does not become void due to their invalidity, because a waqf is a charity and charities are not invalidated by void conditions.

The Imamiyyah differ among themselves. Some among them observe that the presence of a void condition does not necessitate the annulment of the contract while others consider that necessary. A third group abstains from expressing any view (al-Jawahir and al-Ansari’s al-Makasib).

Our view here is that the invalidity of a condition which contradicts the precepts of the Book and the Sunnah does in no manner entail the invalidity of the contract. The reason is that a contract possesses certain essentials (arkan) and conditions, such as, the offer, its acceptance, the contracting party's sanity, maturity, and ownership of the subject of transaction, and its transferability. When these aspects of the contract are fulfilled, the contract is undoubtedly valid. As to the presence of void conditions, which have no bearing, immediate or remote, on the essentials and conditions of the contract but exist only marginally, their invalidity does not extend to the contract. Even if it is presumed that the invalidity of a condition creates a discrepancy in the contract - such as an uncertainty resulting in risk in a transaction of sale - the contract will be void in such a situation as a result of the uncertainty, not because the condition is void.

The author of al-Jawahir also holds this opinion. With his singular acumen and precision, he observes: "'The claim that an invalid condition if considered restrictive entails the invalidity of the contract and if considered hortative does not lead to its invalidity, is sophistic and fruitless."

Such a distinction is obviously sophistic and nonsensical, because in practice there is no recognizable difference between the two conditions, and it is evident that the regulations of the Shari'ah have been framed on the basis of the general level of understanding of the people and not on the basis of subtle logical distinctions.

We have mentioned that the legists divide the conditions into valid and invalid ones, and regard the fulfilment of the former as obligatory. They have also divided invalid conditions into those which contradict the spirit of the contract and those which do not, yet contradict the rules of the Shari'ah. They concur that the first kind is both invalid and invalidating, and differ concerning the second, some considering it as invalid without being invalidating, while others consider it both invalid and invalidating.

The legists then differ regarding many particular cases and issues as to whether they belong to the class of invalid conditions, and supposing that they do, as to whether they are invalidating as well. Here we shall mention a few of such cases.

The Option to revoke (al-Khayar)

According to the Shafi'i, Imami and Hanbali schools if a waqif lays down a condition giving himself the option for a known period to either confirm the waqf or revoke it, the condition is void along with the waqf, because this condition is contrary to the spirit of the contract.
According to the Hanafis both are valid (Fath al-Qadir, al-Mughni and al-Tadhkirah).

Inclusion and Exclusion (al-Idkhal wa al-Ikhraj)

According to the Hanbalis and the preponderant Shafi'i opinion, if a waqif lays down a condition entitling him to exclude from the beneficiaries of the waqf whomever he wishes and to include others as beneficiaries, the condition is not valid and the waqf is void, because the condition is contrary to the spirit of the contract and invalidates it (al-Mughni and al-Tadhkirah).

The Hanafis and the Malikis consider the condition valid (Sharh al-Zarqani and Abu Zuhrah).

The Imamiyyah make a distinction between the right to include and the right to exclude. They state: If he lays down a condition stipulating an option to exclude whomever he wishes from the beneficiaries, the waqf is void, and if the condition is that he may include those who would be born in the future among the beneficiaries, it is valid, irrespective of whether the waqf is in the favour of his own children or those of someone else (al-Tadhkirah).

Waqif’s Maintenance and the Payment of his Debts

The Imami and the Shafi'i schools say: If one creates a waqf in favour of someone and includes a condition requiring the payment of his debts and the provision of his maintenance from the proceeds of the waqf, the waqf and the condition are both void (al-Jawahir and al-Muhadhdhab).

A Note

In view of the mention above of the condition of option (shart al-khayar) and the cases of waqf which are limited by a condition, it will be appropriate here to point out the difference between the following terms commonly used by Imami legists: khayar al-shart and shart al-khayar, mutlaq al-'aqd and al-'aqd al-mutlaq.

Shart al-khayar is involved where the executor of a contract makes an explicit mention of the word khayar (option) while executing the contract and thereby reserves for himself the right to use it. For instance, he may say: "I sell this article to you and I shall have the option to annul the sale and revoke it within such and such a period." As to khayar al-shart, which is more properly an option that results from the non-fulfilment of a condition, the party executing the contract makes no mention of it in the contract; rather, it is implicit in some condition that he lays down; such as where .the seller says to the customer, "I sell this thing to you on the understanding that you are a scholar" and later on the buyer turns out to be illiterate. The non-fulfilment of the condition gives the seller the option to avoid the sale and revoke it; he may either confirm the sale if he wishes or revoke it. The difference between the meanings of the two terms is obviously great.

The difference between al-'aqd al-mutlaq and mutlaq al-'aqd will become clear when we understand the different forms of the contract. The kind of contract in which no conditions are stipulated is called al-'aqd al-mutlaq. Another kind is a conditional contract (al-'aqd al-muqayyad), which may contain either positive or negative conditions. A contract in general, irrespective of inclusion of any positive or negative conditions, is mutlaq al-'aqd, a term which includes both al-'aqd al-mutlaq and al-'aqd al-muqayyad. Accordingly, al-'aqd al-mutlaq and al-'aqd al-muqayyad differ from each other, yet are two kinds that fall under mutlaq al-'aqd (like 'man' and 'woman' with reference to 'human being').12

Sons and Daughters

If a waqf is created in favour of sons, it will not include daughters, and vice versa. If it is created in favour of children, both are included and will equally share the benefit. If the waqif states: "The male will receive twice the female's share" or "they will both share equally" or "the female will receive twice the male's share," or states, "the woman that I have married will not have a share in it," all these provisions are valid, considering that they are conditions laid down by the waqif. I did not find among the books of the five schools of fiqh that have been accessible to me any view which differs from what has been mentioned, excepting the one which Abu Zuhrah narrates on page 245 of Kitab al-waqf from the Malikis. There it is stated: Consensus prevails among the Malikis that it is a sin to create a waqf in favour of sons to the exclusion of daughters, and to entitle someone to its benefit on condition of his abstinence from marriage; and some of them consider its sinful character the cause of its invalidity.

I believe that the opinion holding the invalidity of the above conditions, as well as the opinion which includes daughters in the waqf when it has been created solely in favour of sons, have both been abandoned and carry no weight among the Malikis. Though I have with me more than five works of the Malikis, including their voluminous as well as shorter works, despite my search I have not found in them any reference to this view.

On the contrary, they contain the following observation: The words of the waqif will be understood according to the common usage and they are like the words of the Lawgiver with respect to the obligation of their observance. Indeed, it has been narrated from 'Umar ibn 'Abd al-'Aziz that he made an effort to include daughters in waqfs made in favour of sons, but he was not a Maliki. Apart from this, if his efforts prove anything, they prove his compassionate and humanitarian disposition.

The Grandchildren

In the same way as the legists differ concerning the validity of some conditions, as to whether the invalid ones are just void or are void as well as invalidating, they also differ concerning the meaning of certain words, and among such instances is the case where the waqif says: "This waqf is in favour of my children (awladi)," without making any further clarification. Here the question arises a to whether the words 'my children' includes grandchildren as well, and if they do, whether they include both the sons' and the daughters' children or the sons' children only.

The preponderant (mashhur) Imami view is that the words 'my children' do not include grandchildren, although al-Sayyid al-Isfahani states in Wasilat al-Najat: "The word 'children' (awlad) includes both male and female grandchildren," and this is the correct view because that is what it means in customary usage, which is the criterion in this regard.

The author of al-Mughni has narrated from Ibn Hanbal that the word 'child' (walad) applies to one's sons and daughters and to the son's children, not to the daughter's children.

The Shafi'is observe: The word' child' (walad) includes both sons and daughters, but it does not generally include grandchildren. But the words walad al-walad (grandchild), according to them as well as the Hanafis, include both the sexes (Fath al-Qadir and al-Muhadhdhab).

The Malikis say: Females are covered by the word awlad, but not by the phrase awlad al-awlad (children's children) (al-Zarqani).

This view of the Malikis is self-contradictory, because both the word awlad and the phrase awlad al-awlad are derived from the same root, w.l.d. How can it include both the sexes when used singly and only males when used in a construct phrase?

The Management of Waqf (al-Wilayah 'ala al-Waqf)

The wilayah over waqf is the authority granted to someone for managing, developing and utilizing the waqf and for applying its yield for its specified purpose. This wilayah is of two kinds: general and particular. The general wilayah is enjoyed by the wali al-'amr, and the particular one by any person appointed by the waqif at the time of the creation of waqf or by hakim al-shar'.

The schools concur that the mutawalli should be an adult, sane, mature and trustworthy person. Rather, the Shafi'i and some Imami legists include tbe condition of 'adalah as well. In fact, trustworthiness and reliability (wathaqah), along with the ability to fully administer the waqf, suffice.

The schools concur that the mutawalli is a trustee and is not liable except in the event of breach of trust and misfeasance.

The schools, except the Maliki, also concur that the waqif is entitled to grant himself the authority of administering the waqf, either alone or along with another person, for life or for a fixed period. He is also entitled to give this authority to someone else.

According to Fath al-Bari, Malik has stated: It is not valid for a waqif to grant himself the wilayah, for then it may become a waqf in one's own favour, or the passage of time may lead to the fact of its being a waqf being forgotten, or the waqif may become insolvent and apply it for his own benefit, or he may die and his heirs may apply it for their own benefit. But if there is no fear of any of these conditions arising, it does not matter if he keeps its administration in his own hands.

The schools differ where the waqif does not grant anyone this authority to himself or someone else. The Hanbalis and the Malikis observe: The authority of managing the waqf will rest with the beneficiaries provided they are known and limited, otherwise the hakim will exercise it (al-Tanqih and Sharh al-Zarqani).

The Hanafis state: The wilayah will remain with the waqif even if he does not explicitly mention it (Fath al-Qadir).

The Shafi'is differ among themselves, holding three opinions. The first opinion is that the wilayah will rest with the waqif, the second that it will rest with the beneficiaries, and the third that it will be exercised by the hakim (al-Muhadhdhab).

The preponderant view among the Imamiyyah is that when the waqif does not name the mutawalli the wilayah belongs to the hakim, which he may exercise personally or appoint someone to it. Al-Sayyid Kazim, in al-Mulhaqat, and al-Sayyid al-Isfahani, in al-Wasilah, observe: This is correct in respect of public waqfs, but as to private waqfs it is for the beneficiaries to safeguard, improve, rent the waqf and realize its income without the hakim's permission, and this has been the practice.

The Imamiyyah say: If the waqif retains the wilayah over the waqf for himself and is not trustworthy, or gives it to a person of known impiety (fisq), the hakim is not empowered to annul the wilayah of either the waqif or the person appointed by him. This is mentioned in al-'Allamah al-Hilli's al-Tadhkirah. Rather the author of al-Mulhaqat observes: If the waqif provides that the hakim should have no say in the affairs of his waqf, it is valid, and if the person appointed by the hakim to administer the waqf dies, this power will rest with the beneficiaries or 'adil individuals from among Muslims.

The Hanafi author of Fath al-Qadir (vol.5, p.61) states: If the waqif retains the wilayah with himself, in the event of his being untrustworthy the qadi is bound to abrogate his authority. Similarly, if he provides that the ruler and the qadi are not empowered to abrogate his authority and hand it over to another, the condition is void because it opposes the rule of the Shari'ah.

I do not know how this view could be reconciled with what Abu Zuhrah has narrated in Kitab al-waqf, p. 372, from al-Bahr, that a qadi is not to be removed on grounds of impiety; for in such a circumstance the mutawalli is better entitled to remain, because the administration of justice is a more elevated and sensitive job.

When the waqif or hakim has appointed a mutawalli, no one has any authority over him as long as he is fulfilling his wajib duty. But if he falls short of his duty or breaches the trust reposed in him, so that his remaining would be harmful, the hakim is empowered to replace him, though it is better that he appoint, as observed by the Hanbalis, a trustworthy and energetic person alongside the former.

If the person appointed by the waqif dies, or becomes insane, or is affected by any other disability which renders him incapable, the wilayah will not return to the waqif unless he had so stipulated at the time of executing the waqf contract.

The Malikis permit its return to the waqif, and he is also empowered to remove the mutawalli at his pleasure.

The Imamiyyah and the Hanbalis state: If the wilayah is granted to two persons, they will act independently if so stipulated by the waqif, and if one of them dies or becomes incapable of performing his duty, the other will singly perform the task. But if the waqif provides that they act jointly and not individually, it is not valid for any one of them to act individually. Where there is no explicit provision in this regard, the waqif will be understood to have meant that they should not act individually, and hence the hakim will appoint another person and make him join the existing one (al-Mulhaqat and al-Tanqih).

It has been narrated in Fath al-Qadir from Qadi Khan al-Hanafi: Where the waqif grants the wilayah to two persons, if one of them provides in his will that his companion is entitled to exercise his wilayah over the waqf, after he dies it becomes valid for the person alive to exercise wilayah over the whole waqf.

The author of al-Mulhaqat observes: If the waqif provides a part of the benefits of the waqf for the mutawalli, the same will hold good irrespective of whether it is a large or a small amount, and if nothing is provided, he will be entitled to the compensation for a comparable job (ujrat al-mithl). This is in concurrence with what Madkur narrates in Kitab al-waqf regarding the Egyptian law.

The schools concur that the mutawalli appointed by the waqif or the hakim is entitled to appoint an agent for the achievement of any purpose of the waqf, irrespective of whether the appointing authority explicitly provides for it or not, except where it insists on his performing it personally.

The schools also concur that the mutawalli is not empowered to transfer the wilayah after him to another person where the original wali prohibits it. Similarly, they concur upon the validity of his delegating the wilayah to someone else where he has been authorized to do so. But where the wali has made no mention of this issue, either affirmatively or negatively, the Hanafis hold that he is entitled to do so, while the Imami, Hanbali, Shafi'i and Maliki schools consider that he is not so entitled, and if he does delegate it, his act is null and void.

The Children of 'Ulama' and Awqaf

There exist in our times 'ulama' whose greed for mundane things equals Imam 'Ali's love for his faith. Hence, they give the wilayah over the waqf in their hands to their children and then to their grandchildren and so on till the day of resurrection. They hide their intention by using the words "...the most capable in order of capability from this lineage."

I do not intend to criticize this innovation - or tradition - by quoting verses and traditions. But I will raise some questions here. Is the intention of such an 'alim, while transferring this authority to his progeny, the betterment of the waqf and society, or is it only for securing the private advantage of his descendants? Does the motivation of this idea come from moral sense, continence, piety and self-denial for the cause of the faith, or is it motivated by a wish to provide some booty for his descendants by selling and exploiting one's religion? Does such a person have knowledge of the future through which he knows that the most capable among his descendants would be better for the cause of Islam and Muslims than the most capable individual from someone else's descent?

Consequently, why doesn't this 'alim take a lesson from the rift he has observed and witnessed between the children of the 'ulama' and the people of the place where the waqf exists, as well as between the children themselves in determining 'the most capable', and their eventually concurring over the distribution of waqf as if it were inherited property?

The Sale of Waqf

Do there actually exist causes which justify the sale of waqf property? What are these causes if they exist? And if such a sale is valid and takes place, what is the rule concerning the proceeds? May we replace it (the original waqf property) with something capable of fulfilling the objectives of the waqf, so that a new property takes the place of the old one and is governed by the rules applicable to it?

Al-Makasib and al-Jawahir

We will discuss the opinions of the different schools in detail and this discussion will make clear the replies to these as well as some other questions. I haven't come across anyone among the legists of the five schools who has dealt with this issue in such detail as the two Imami legists al-Shaykh al-Ansari, in al-Makasib, and al-Shaykh Muhammad Hasan, in al-Jawahir, ‘bab al-tijarah’. The two have examined the issue from all the angles, together with its numerous sub-issues, and have sifted the various opinions expressed in this regard. We will present a summary of the important issues dealt with in these two incomparable books on which we have relied more than any other work in presenting the Imami viewpoint.

In this regard it may be pointed out that al-Shaykh al-Ansari and the author of al-Jawahir, in what they have left of their works, do not save the reader from toil and effort; rather, they require from him application, patience, intelligence and a substantial educational background. Without these it is not possible to follow these two authors or even to trace the path they have taken. Rather, they leave him lost and unable to find safe passage.

But one who has a firm educational base is bestowed upon by them the most precious of gems (jawahir) and the most profitable of earnings (makasib), provided he possesses patience and persistence. I am not aware of any other Imami legist from among the earlier or later generations who has bestowed Ja'fari fiqh and its principles life and originality to the extent given to it by the mighty pen of these two.

I apologize for this digression which I was compelled to make by my sense of gratitude as a pupil of these two great figures, or more correctly of their works.

The Present Question

Numerous views have been expressed in this regard and the clash of opinions visible here is not to be seen in any other issue of fiqh, or at least in the chapter on waqf. The author of al-Jawahir has dealt with the medley of conflicting opinions and we mention here a collection of his observations:

The legists differ regarding the sale of waqf in a manner the like of which we do not generally encounter in any other issue of waqf. Some of them absolutely prohibit the sale of waqf, some others allow it under certain circumstances, while a group among them refrains from giving any opinion. Rather, the number of opinions expressed is so large that each legist has his own specific view, and there are instances where a single legist has expressed contradictory views in the same book; for example, the view expressed by him in the chapter on sale contradicts his opinion in the chapter on waqf. Sometimes contradictory ideas have been expressed in a single argument, so that that which is observed in the beginning differs from the observations at the time of conclusion. The author of al-Jawahir has recorded twelve different opinions and the reader will learn about the most important among them from the issues discussed below.

Mosques

The rule applicable to a mosque, in all the schools of Islamic law, differs from the rules applicable to other forms of waqf in a number of ways. Hence all the schools, except the Hanbali, concur that it is not permissible to sell a mosque irrespective of what the circumstances may be, even if it lies in ruins or the people of the village or locality where it is located have migrated and the road to it is cut in such a manner that it is certain that not a single person will pray in it. Despite all this, it is wajib that it remain in the same state without any change. The reason given for this is that the waqf of a mosque severs all links between it and the waqif as well as everyone else except God Almighty, and, therefore, it is at times termed fakk al-milk (release from ownership) and at times tahrir al-milk (liberation from ownership). That is, earlier it was confined, while now it has become free from all constraints. Now when it is not anyone's property, how can its sale be valid when it is known that sale cannot take place without ownership?

Consequently, if a usurper utilizes a mosque by residing in it or cultivating it (when it is a piece of land), though he be considered a sinner, he is not liable for any damages, because it is not owned by anyone.

It is noteworthy that its ceasing to be anyone's property precludes its ownership through sale or purchase, but this prohibition does not apply if its ownership is acquired through al-hiyazah (acquisition), like all other forms of natural bounties (al-mubahat al-'ammah).

The Hanbalis say: If the residents of a village migrate from the locale of the mosque and it stands in a place where no one prays in it, or if it is too small for the number of people praying in it and its extension or building a part of it is also not feasible without selling a part of it, its sale is valid, and if it is not possible to draw any benefit from it except through sale, it may be sold (al-Mughni, vol.5, ‘bab al-waqf’).

The opinion of the Hanbalis is similar in some aspects to the view expressed by the Imami legist al-Sayyid Kazim, who observes in Mulhaqat al-'Urwah that there is no difference between the waqf of a mosque and its other forms.

Thus dilapidation, which justifies the sale of other forms of waqf property, will also justify the sale of a mosque. As to the 'release from ownership', it does not hinder its sale in his view so long as the property has value. The correct view, in our opinion is that it is not valid to own a mosque through a contract of sale, though it is valid to do so through al-hiyazah.

That which gives strength to the view expressed by this great legist, that there is no difference (between the various kinds of waqf), is that those who permit the sale of a waqf which is not a mosque if it is in a dilapidated condition, do so because in a dilapidated state the structure is either unable to fulfill the purpose for which it was endowed or loses the quality made by the waqif as the subject of the waqf (such as where he endows an orchard because it is an orchard and not because it is a piece of land). This logic applies exactly in the case of a mosque as well, because the condition that it should be used as a place of prayer was what caused it to be made a waqf. Now when this condition is not being fulfilled, the property ceases in its use as a mosque. In such a situation, the rule applicable to a non-mosque waqf will also be applied here. In that it can be owned through any of the forms of acquisition of ownership, even if it be through al-hiyazah.

Properties Belonging to Mosques

Generally mosques have assets in the form of waqfs of shops, houses, trees or land, whose profits are utilized for the repairs and carpeting of mosques and for paying its attendants. Obviously, these forms of property do not enjoy the sanctity of a mosque and its merit as a place of worship, because there is a difference between a thing and the properties subject to it.

The two also differ with respect to the rules applicable to their sale. Therefore those who prohibit the sale of a mosque allow the sale of a mosque's assets because there is no causal shar'i or non-shar'i relationship between them, considering that a mosque is used for worship, a purely spiritual activity, while the waqf of a shop (owned by a mosque) is destined for material benefit. Hence a mosque belongs to the category of public waqfs - or rather it is one of the most prominent of its forms - while the properties owned by it are private waqfs belonging specifically to it. Consequently, it is doubtlessly valid to sell waqf properties belonging to mosques, cemeteries and schools, even if we accept the invalidity of the sale of a school or a graveyard.

But is it valid to sell the properties subject to a waqf unconditionally, even if there is no justifying cause - such as its being in a dilapidated condition or dwindling returns - or is it necessary that there exist a justifying cause so as to be treated exactly like a waqf in favour of one's descendants and other forms of private waqf?

These properties are of two types. The first type is one where the mutawalli buys the property from the proceeds of the waqf, such as where a mosque has an orchard which the mutawalli rents out, or buys or builds a shop from its proceeds for the waqf’s benefit, or obtains a shop from charitable donations received. In such a situation, both sale and exchange are valid if beneficial, irrespective of whether there exists any justifying cause mentioned by the legists, because, these properties are not waqf but only the proceeds or assets belonging to the waqf. Hence the mutawalli is free to deal with them in the interest of the waqf, exactly like he deals with the fruits of an orchard endowed for the benefit of a mosque,13 except where the religious judge (hakim al-shar') supervises the creation of the waqf of a real estate bought by the mutawalli in which case the real estate will not be sold unless there exists a cause justifying its sale. But where the mutawalli creates a waqf, it has no effect without the hakim's permission, because the mutawalli is appointed for managing the waqf and its utilization, not for creating waqfs.

The second type of property is one where the benefactors endow it as a waqf for the benefit of a mosque or school (as when a person provides in his will that his house, shop or land be made a waqf for the benefit of a mosque or school, or he himself makes a waqf of it). This kind of property is considered a private waqf and its sale is valid if the justifying causes, such as dilapidation or dwindling returns amounting to almost nothing, exist. But if they do not exist, it is not valid. I haven't come across in any work of the four Sunni schools in my possession anyone making this distinction.

This is what I have inferred from what al-Shaykh al-Ansari mentions in al-Makasib while discussing the rule applicable to a mosque's mat. He says: "A difference has been made between what is 'free' property (e.g. a mat purchased from the income of a mosque: in this case it is valid for a mutawalli to sell it if it is beneficial, if it has fallen into disuse or even if it is still new and unused) and between what is part of a waqf in favour of the mosque (e.g. a mat which a person buys and puts in the mosque, or the cloth used to cover the Ka'bah; the like of these are the public property of Muslims and it is not valid for them to alter their condition except in cases where the sale of waqf is valid)."

Thus when it is valid for a mutawalli to sell a new mat of the mosque which he has purchased from its funds, it is without doubt valid for him to sell other such items. and that which indicates an absence of difference (between a mat and something else) is the Shaykh's own observation soon after the above quotation. There he states: "The rule applicable to baths and shops which have been built for income through letting them and the like, is different from the rule applicable to mosques, cemeteries and shrines."

Exactly similar is the following view of al-Na'ini mentioned in al-Khwansari's Taqrirat: "Where a mosque is ruined or forsaken, in a manner that it is no longer in need of the income from its waqfs and other sources, the income from waqfs pertaining to it will be spent in worthy causes, though it is better that it be spent on another mosque." Similarly, if the waqf is in favour of a certain school or hospital which lies in ruins, its income will be used for charitable purposes or for another institution of its kind.

Waqfs which are not Mosques

We have referred to the opinions held by the different school concerning mosques, and pointed out that the Imami, Shafi'i, Hanafi and Maliki schools are opposed therein to the Hanbalis. But concerning waqfs other than mosques, the Imamiyyah have their own specific stand regarding their sale. We will first mention the views of the four Sunni schools and then deal separately with the opinion of the Imamiyyah.

Since the Hanbali have allowed the sale of a mosque on the existence of a justifying cause, it is more in order for them to allow the sale and exchange of a waqf which is not a mosque, provided a justifying cause exists.

As to the Shafi'is, they absolutely prohibit its sale and exchange even if it is a private waqf (e.g.in favour of one's progeny) and even if a thousand and one causes exist, though they allow the beneficiaries to use up the private waqf themselves in case of necessity (e.g. using a dried fruit tree as fuel, though its sale or replacement is not valid for them).

The Malikis, as mentioned in Sharh al-Zarqani 'ala Abi Diya’, permit the sale of a waqf in the following three situations. First, where the waqif stipulates its sale at the time of creation of waqf; here his condition will be followed. Second, where the waqf is a movable property and is considered unfit for its prescribed purpose; here it will be sold and the amount realized will be used to replace it. Third, an immovable property will be sold for the expansion of a mosque, road or cemetery. Apart from these its sale is not valid, even if it lies in ruins and is not being utilized for any purpose.

As to the Hanafi’s, according to Abu Zuhrah in Kitab al-waqf, they allow the replacement of public and private waqfs of all kinds except mosques. They have mentioned the following three situations in this regard:

1. That the waqif should have specified it at the time of creation of waqf.

2. The waqf should fall in a condition of disuse.

3. Where replacement is more profitable and there is an increase in its returns, and there exists no condition set by the waqif prohibiting its sale.

This was a brief account of the views of the four schools regarding a waqf which is not a mosque, and, as noticed, they, as against the Imamiyyah, do not differentiate between private and public waqfs - excepting mosques - from the point of view of their sale.

Public and Private Waqfs

The Imamiyyah divide waqfs into two categories and specify the rules applicable to each one of them as well as their consequences.

Private Waqf

It is a waqf which is the property of the beneficiaries, i.e. those who are entitled to utilize it and its profits. To this category belong waqfs in favour of one's progeny, 'ulama', or the needy, the waqfs of immovable property for the benefit of mosques, cemeteries, schools, etc. It is regarding this category that there is a difference of opinion between the legists as to whether its sale is valid when the justifying causes are present or if it is totally invalid even if a thousand and one causes exist.

Public Waqf

It is a waqf for the common benefit of people in general, not for a specific group or class among them. To this category belong schools, hospitals, mosques, shrines, cemeteries, bridges, caravansaries of the past, springs and trees dedicated for the use of passers-by, because they are not meant for any specific Muslim individual or group to the exclusion of other individuals or groups.

The Imamiyyah concur that these public waqfs cannot be sold or replaced in any situation even if they are in ruins or about to be destroyed and fall into disuse, because, according to them, or most of them, they are released from ownership, i.e. gone out of the ownership of the earlier owner without becoming anyone's property. Thus on becoming waqf such a property becomes exactly like the free gifts of nature, and it is obvious that there can be no sale except where there is ownership. This is in contrast to private waqfs which involve the transfer of ownership of the waqif to the beneficiaries in some particular manner. Hence (in the case of public waqfs), if the purpose of a waqf becomes totally impossible to achieve (such as a school which has no students and consequently no lessons can be held in it) it is valid to transform it into a public library or a conference hall.

We have already pointed out in the discussion on mosques that though they are precluded from being owned through sale, it is valid to own them through al-hiyazah. We also said that the author of Mulhaqat al-'Urwah has criticized the legists on the basis that there is no difference between public and private waqfs and that the reason justifying the sale of a private waqf also justifies the sale of a public waqf. He does not concede that a public waqf involves release and freedom from ownership, and there is no impediment to sale in his opinion even if it is accepted to be such, because, according to him, the factor justifying a thing's sale is that it should possess value.

However, we have some remarks to make about the opinion of the legists as well as that of the author of al-Mulhaqat. We reject the position of the legists on the ground that though the absence of ownership prevents ownership of a waqf through a contract of sale, it does not prevent its ownership through al-hiyazah.

Similarly, ownership by itself does not validate sale, because mortgaged property which is certainly owned (by the mortgagor), cannot validly be sold without the consent of the mortgagee.

We reject the position of the author of al-Mulhaqat because possession of value by itself is not sufficient, for the unowned gifts of nature, (such as the fishes in the water or the birds in the sky), though they possess value, cannot be sold (in that state). Therefore, as observed earlier, the only way of ownership is through al-hiyazah.

Cemeteries

We have already mentioned that cemeteries are public waqfs like mosques and that the Imamiyyah do not consider their sale valid in any situation, even if they are in ruins and their signs have been wiped out. I consider it useful to specifically discuss cemeteries in this chapter for the following two reasons.

1. The necessity of mentioning the rules in this regard because there are numerous Muslim cemeteries which have been forsaken and are used for other purposes.

2. Usually there is a difference between cemeteries and other forms of waqfs. This difference will become clear in the following discussion.

If we know about a cemetery that a person had donated his land for that purpose and it was used for burial, the rule applicable to public waqfs will apply to it, and it will be reckoned among waqfs whose sale is invalid even if its signs have disappeared and the bones of the buried have decayed.

But if we know that the cemetery was previously an unused land not owned by anyone and the people of the village used it as a cemetery - as is usually the case - then it is not a waqf ab initio, neither public nor private; rather it will remain the common property of all (al-musha’) and its hiyazah is valid for anyone who takes the initiative. But if a corpse is buried in a part of it, both the opening of the grave and using it in a desecrating manner are not valid. But anyone can personally utilize any part of this land by either cultivating it or building upon it if it is without graves or there are old graves whose occupants' bones have decayed.

Using this land is valid for him, exactly like it is valid for him to use abandoned land or land whose original user has migrated and it has reverted to its previous state.

Where we are unaware of the history of a piece of land which is being used as a cemetery - i.e. as to whether it was an owned land which was endowed by the owner, so that it would be considered a waqf and governed by its rules, or if it was an ownerless land which the villagers later used for burying their dead - it will not be considered a waqf because the presumption is the absence of a waqf unless its existence is proved according to the Shari'ah.

Here one might say: A waqf is proved if it is popularly known to be such; therefore why cannot the waqf of a cemetery be similarly proved?

Our reply is that if it is popularly known that a certain cemetery is a waqf and it has been narrated generation after generation that a particular person had endowed it for a cemetery, we would definitely confirm it as a waqf. But if all that is widely held is that it is a cemetery, the sole knowledge of its being a cemetery is not sufficient to prove that it is a waqf. It could have been common land.

A Sub-Issue

If a person digs a grave for himself to be buried in it at the time of his death, it is valid for others to bury in it another corpse even if there is extra space in the cemetery. But it is better to leave it for him, refraining from troubling a believer.

Causes Justifying the Sale of Waqf Property

We have already mentioned that Imami legists concur that the sale of public waqfs, like mosques and cemeteries, etc., is not valid. But regarding private waqfs (e.g. the waqfs made in favour of one's progeny, scholars, or the needy) there is a difference of opinion between them where there exists a cause justifying their sale. The following causes justifying the sale of private waqfs have been mentioned by these legists.

1. Where there remains no benefit of any kind in the property from the viewpoint of the purpose for which it was endowed (e.g. a dried branch not yielding fruit, a torn mat fit only for being burnt, a slaughtered animal which can only be eaten), there is no doubt that this cause justifies sale.

2. Al-Sayyid Abu al-Hasan al-Isfahani observes in Wasilat al-najat: "The articles, carpets, cloth coverings of tombs, and similar items cannot be sold if they can be utilized in their present state. But if they are not required in the location any longer, and their being there would only damage and destroy them, they should be utilized in a similar alternative place, and if such a place does not exist or exists but does not need them, they will be used for public benefit. But where no benefit can be derived from them except by selling them and their retention amounts to their damage and destruction, they will be sold and the proceeds used for the same place if it is in need of it. Otherwise, it will be used in any other similar place if possible or for public benefit.

3. If a waqf is in ruins (such as a dilapidated house or an orchard which is not productive) or its benefit is so little as to be reckoned nonexistent, if its repair is possible it will be repaired, even if it entails its being rented out for years; otherwise, its sale will become permissible, provided its proceeds are applied for replacing the former property as mentioned below.

4. If the waqif provides for the sale of waqf property in case of dispute between the beneficiaries, or dwindling profits, or any other reason which does not make a haram halal and vice versa, his desire will be carried out.

5. Where dispute occurs between the beneficiaries of a waqf threatening loss of life and property and there is no way of ending it except through its sale, the sale is permissible and the amount realized will be distributed among the beneficiaries.

This is what the legists say, though I do not know the basis of their opinion except what they have mentioned regarding the countering of a greater by a lesser harm. But it is obvious that it is not valid to remove harm from one person by shifting it to another, and the sale of the waqf entails loss to the succeeding generations of beneficiaries.

6. If it is possible to sell part of a dilapidated waqf property and repair the remaining part with the proceeds of the sale, such a sale is permissible.

7. If a mosque is ruined, its stones, beams, doors, etc. will neither be treated in accordance with the rules applicable to the mosque itself, nor the rules applicable to fixed property endowed for the benefit of a mosque which forbid its sale except on the presence of a justifying cause. Rather, the rules applicable to them will be those which apply to the income of the mosque and its waqfs (such as the rent of a shop belonging to or endowed in favour of the mosque). In this regard the mutawalli is free to utilize it in any manner beneficial for the mosque.

The Sale Proceeds of a Waqf

Where a waqf is sold on the presence of a justifying cause, how will the sale proceeds be used? Will they be distributed among the beneficiaries exactly like the income generated by the waqf, or is it necessary, if possible, to buy with these sale proceeds a similar property to replace the one sold?

Al-Shaykh al-Ansari, as well as many other mujtahids observe: The rule applicable to the sale proceeds is the rule applicable to the waqf sold, in that it is the property of the succeeding generations. Therefore, if the sale proceeds are in the form of immovable property, it will take the place of the waqf sold; if it is cash, we will buy with it the most suitable replacement. The replacement does not require the reciting of a sighah for making it a waqf, because the fact that it is a replacement naturally implies that the latter is exactly like the former. Hence al-Shahid states in Ghayat al-murad: 'The replacement is owned on the basis of the ownership of the replaced property, and it is impossible that it be owned separately.'

Then al-Ansari observes in al-Makasib, at the conclusion of the discussion on the first cause validating the sale of a waqf: "If it is not possible to buy immovable property from the sale proceeds, the money will be kept in the custody of a trustworthy person awaiting a future opportunity. If deemed beneficial, it is also permissible to do business with it, though the profits will not be distributed among the beneficiaries, as is done in the case of the income generated from the waqf; rather the rule applicable here will be the rule applicable to the waqf itself because it is part of the property sold and not a true increase."

This is what al-Ansari has said and he, may God be pleased with him, is better aware of his true intent. But I do not perceive any difference between the profits of the sale proceeds of a waqf and the income generated from the waqf itself. Therefore, as the income of the waqf is distributed among the beneficiaries, it is appropriate that the profits (from the sale proceeds invested) be similarly distributed, though it may be said that the income from the waqf's immovable property does not belong to the class of the waqf property itself but is separate from it, whereas the profits from business are in the form of money which does not differ from it, and where there is a difference, the rule applicable will also differ. Whatever the case, if the mind is set to work, it finds a solution for every difficulty and doubt from a theoretical point of view. But, obviously, practice should be the criterion, and the tangible reality is that usage does not distinguish between the two situations, and therefore it should be resorted to.

Al-Shaykh al-Na'ini observes in al-Khwansari's Taqrirat: If another property is purchased from the sale proceeds of the first property, the latter will neither take the place of the former nor will it be considered a waqf similar to the former; rather it is exactly like the income generated from a waqf .and it is permissible to sell it without any justifying cause if the mutawalli considers its sale to be beneficial.

The correct opinion is the one mentioned by al-Ansari, al-Shahid and other researchers that there is no difference between the replacement and the property replaced.

Some Curious Waqfs

I did not intend to add anything about waqf after having finished discussing it and having mentioned the positions of the schools. But incidentally at the time when I had finished the chapter on waqf to go on to the chapter on Hajr (legal disability), I read a curious and interesting account regarding Egyptian waqfs during the eras of the Mamluks and earlier 'Uthmanis. I had received two magazines, the Lebanese Lisan al-Hal and the Egyptian al-Akhbar dated 7th July 1964, and I set aside my pen and started perusing them so to know about the current developments and to relieve myself of monotony.

By chance I happened to read in the magazine al-Akhbar that in the Directorate of Waqf, Egypt, is an iron vault that had remained locked for hundreds of years. The Directorate decided to open it to find out its contents. When the doors of this vault were opened, thousands of deeds and agreements covered with dust and piled upon one another were found. Twenty persons were appointed to study them. When they started this work they came across curious and amazing things: 300 deeds written with gold water, a deed executed a thousand years ago, and so on. It made an interesting and enjoyable reading either because it was actually so or due to my immersion in related research and writing. I mention a part of these contents hoping that the reader too would also enjoy reading them:

An immovable property was endowed for providing grass for the mule ridden by the Shaykh of al-Azhar at that time.

A woman created a waqf of 3000 feddans (1 Egyptian feddan = 4200.833 sq. metre) for the benefit of the 'ulama' who followed Abu Hanifah.

Some pasha endowed 10,000 feddans for covering the graves of his relatives with branches of palm and myrtle.

A person endowed parts of his wealth for the water-carriers of the city mosque.

Another created a waqf for the reciter of the Friday sermon.

A lady created a waqf for providing ropes for pails used for supplying water to a mosque.

A waqf for providing caftans and outer garments for old persons.

A waqf for incensing study sessions.

I remember having read in the past about a waqf in Syria whose income is used to buy new plates to replace those broken by maid-servants to save them from the censure of their mistresses.

I have heard that in Homs there is a waqf for those who sight the new moon of the 'ld of Ramadan. For this reason there is a multitude of claims of having sighted it in that region. There are also present waqfs in some villages of Jabal 'Amil for providing shrouds for the dead.

These waqfs, if they reveal anything, show the thinking prevailing at that time, the mode of living and habits of the society in which the waqif lived, and that there were a large number of families who could not even provide their dead with a shroud.

- 1. The difference between waqf and habs is that in the former the ownership of the waqif is completely ended, and this prevents the property from being inherited or disposed of in any other manner. In the latter case, the ownership of the habis is preserved, and the habs property may be inherited, sold, etc. This difference was not noticed by al-Shaykh Abu Zuhrah and he, as will be noticed, has ascribed to the Imamiyyah that which they do not hold.

- 2. This issue of perpetuity in waqf is intimately linked with the question concerning ownership of waqf property, which has been discussed separately in this chapter.

- 3. Abu Zuhrah has rejected this view (p.50), on the basis that the concept of the ownership of God is meaningless in this context, for God Almighty owns everything. But it will be noticed that the meaning of God’s owning the waqf is not that it becomes a free natural bounty (like air and water); rather His ownership of it is like His ownership of khums al-ghanimah, as mentioned the Qur’anic verse:
وَاعْلَمُوا أَنَّمَا غَنِمْتُمْ مِنْ شَيْءٍ فَأَنَّ لِلَّهِ خُمُسَهُ
And know that whatever you acquire as ghanimah, a fifth of it is for God… (8:41)

- 4. As to those who say that waqf may be created only by using specific words, the gist of their argument is based on the presumption of the continuity of the ownership of the property by the owner. That is, the property was the owner's before the execution of the contract; following it, we will come to entertain a doubt (due to his failure to make his intent explicit through specific words) regarding the transfer of its ownership from him. Accordingly, we will presume the existing situation - which is the continuity of the owner's ownership - to continue.
It will be noticed that this argument holds where there is doubt as to whether the owner intended the creation of a waqf or not, or where despite the knowledge of his intention of creating a waqf there is doubt as to whether he has executed the contract and created the cause for its existence. But where we have knowledge of both his intention to create a waqf as well as his having fulfilled what is required to prove its existence, there remains no ground for doubt. Now, if a doubt arises, it will be considered a mere fancy and will have no effect, unless the doubt concerns the validity of the form of recital (al-sighah) as the cause creating the waqf and its effect from the point of view of the Shari’ah.

- 5. The distinction has been accepted by a group of leading Imami scholars, such as the author of al-Shara’i, al-Shahidayn (al-Shahid al-Awwal and al-Shahid al-Thani), al-‘Allamah al-Hilli, and others. According to it, a private waqf is a contract (‘aqd) and requires both an offer and an acceptance, and there is no legal and logical obstacle in a waqf being (bilateral) contract (‘aqd) in certain circumstances and a (unilateral) declaration (iqa’) in others, although the author of al-Jawahir has opposed it.

- 6. There is no proof based on the Qur’an, Sunnah or ‘aql (reason) concerning the invalidity of contingency (ta’liq) in ‘aqd and iqa’, and those who have considered it void have done so on the basis of ijma’. But it is obvious that ijma’ is authority only when we cannot identify the basis on which it is based; but if its basis is known, its authority will disappear, and the basis on which the mujtami’un (those who take part in the ijma’) have relied will itself be weighed to ascertain its authority. In this case the mujtami’un have relied on the assumption that the meaning of insha’ implies its immediate presence, and the meaning of being contingent on a future event is that the insha’ is not present, and this entails the presence and absence of insha’ at the same time.
This argument stands refuted on the ground that insha’ is present in actuality and is not contingent upon anything; only its effects will take place in the future on the realization of the contingency, exactly like a will, which becomes operational on death, and a vow that is contingent upon the fulfillment of a condition.

- 7. The schools differ concerning the disability of an idiot, as to whether it begins at the commencement of idiocy when the qadi has not yet made a declaration of his disability or if it begins after the declaration has been made. We will discuss it in detail in the chapter on wardship (‘bab al-hajr’).

- 8. By ‘Fath al-Qadir’ we mean the book which has become popular by this name, although we know it to be a collection of four books, one of which is Fath al-Qadir.

- 9. Al-Sayyid Kazim observes in al-Mulhaqat: If a person has a share in a house, he can make a waqf of it for a mosque, and those who come for prayers will take the permission of the other owners. I don’t understand what benefit lies in such a waqf.

- 10. For ascertaining the religious beliefs of a group, there is nothing more authentic than its religious texts – especially those on fiqh and law. Al-Shahid al-Thani, one of the greatest juristic authorities of the Imami Shi’is, has stated explicitly that the followers of other religions are better than the Ghulat and that they are honoured creatures of God. In view of this, is it possible to ascribe ghuluww to the Imamiyyah?

- 11. Nadhir means one who takes a vow (nadhr); halif means one who takes an oath (half); musi means one who makes a will (wasiyyah); and muqirr means one who makes a confession. (Trans.)

- 12. Of such pithy expressions common among the theological students of Najaf are: bi-shart shay’, bi shart la and la bi-shart. They mean by bi-shart shay’, ‘on condition that; laying down a positive condition, such as when one says: “I will give it to you if you do such and such a thing.” Bi-shart la implies stipulation of a negative condition, such as when one says: “I will give it to you if you don’t do such a thing.”
La bi-shart means regardless of any positive or negative conditions that may be involved (as when one says: “I will give it to you,” without mentioning any positive or negative condition). It is obvious that la bi-shart includes both bi-shart shay’ and bi-shart la.

- 13. The difference between property purchased from the income of the waqf and property purchased from the sale proceeds of a dilapidated waqf is noteworthy. In the former case, the property purchased will take the place of the waqf sold, while the property purchased from the waqf’s income will not take the position of a waqf.

11. Hajr, Legal Disability

Hajr literally means man' (to prohibit, refuse, prevent, deprive, detain), and this meaning is also evident from the Qur'anic verse:

وَيَقُولُونَ حِجْراً مَحْجُوراً

(Upon the day that they see the angels, no good tidings that day for sinners: they--i.e. the angels--shall say), 'A ban forbidden.' (25:22)

Legally it implies prohibiting the dispositions of a person with respect to all or some of his property. The causes of disability, which we will discuss here, are four: (1) insanity (al-junun); (2) minority (al-sighar); (3) idiocy (al-safah), (4) insolvency (al-'iflas).1

1. Insanity

In accordance with explicit traditions as well as consensus, an insane person is prohibited from all dispositions, irrespective of whether his insanity is permanent or recurring. But if a person suffering from recurring insanity manages his property during the period he is free from it, his dispositions are binding. Further, where it is uncertain whether a particular disposition belongs to the period of sanity, it will not become binding. Because sanity is a condition for the validity of an agreement and an uncertainty regarding it amounts to an uncertainty concerning the existence of the contract itself, not its validity, consequently its very basis is negated. In other words, where there is uncertainty about the validity of a contract due to uncertainty concerning the presence of sanity at the time of its conclusion, we will presume that the situation before the contract continues to exist and will leave it at that.

The rule applicable to an insane person is also applied to a person in a state of unconsciousness and intoxication.

If an insane person cohabits with a woman and she becomes pregnant, the child will be considered his, exactly like in the case of 'intercourse by mistake.'

2. Minority

A minor is considered legally incapable by consensus, and there is a difference of opinion regarding some dispositions of a child of discerning age, as will be mentioned later. When a minor matures mentally and attains puberty he becomes an adult and all his dispositions become enforceable.

The Imami and the Shafi'i schools observe: When a child reaches the age of ten, his will shall be considered valid in regard to matters of charity and benevolence. More than one Imami legist, relying on some traditions, has said: His divorce is also valid.

The reader may refer to the chapter on marriage, the section entitled "Capacity to enter into a Marriage Contract," regarding the age of puberty and its signs.

Liability (al-Daman)

If an insane person or a child destroys another person's property without his permission, they are considered liable, because liability pertains to al-'ahkam al-wad’iyyah in which mental maturity and puberty are not considered as conditions.2 Therefore, if they have any property that is being administered by their guardian, compensation will be claimed from this property; otherwise, the person entitled to the compensation will wait until the insane person regains sanity and the child attains puberty and then claim from them his dues.

A Discerning Child

A discerning child (mumayyiz) is one who can in general distinguish between that which is harmful and beneficial, and who understands the difference between contracts of sale and rent and between a profitable bargain and one entailing loss.

The Hanafis say: The dispositions of a discerning child without his guardian's permission are valid provided they involve sheer benefit, e.g. the acceptance of gifts, bequests and waqfs without giving anything in return. But the dispositions in which the possibility of profit and loss exists - such as transactions of sale, mortgage, rent and bailment - are not valid except by the permission of the guardian.

As to a non-discerning child, none of his dispositions are valid, irrespective of the permission of the guardian, and regardless of the thing involved being of petty or considerable worth.

The Hanbalis observe: A discerning child's dispositions are valid with the permission of the guardian; so are those of a non-discerning child, even without the guardian's permission, if the thing involved is of petty worth, e.g. where he buys from a confectioner what children usually purchase, or buys a bird from someone in order to set it free. (al-Tanqih and al-Tadhkirah)

The Imami and the Shafi'i schools state: A transaction by a child whether discerning or not, is altogether illegal, irrespective of whether he acts as an agent or for himself, irrespective of whether he gives or takes delivery, even if the object transacted is trivial and insignificant, and whether it involves a vow (nadhr) or a confession (iqrar). Al-Shaykh al-Ansari observes in al-Makasib: "The basis for invalidating a child's transaction is a narrated consensus (al-'ijma’ al-mahki) strengthened by an unusual preponderance (al-shuhrat al-'azimah). The criterion is to act in accordance with the preponderance."

The Imami legists have mentioned in this regard a number of subtle sub-issues which al-'Allamah al-Hilli has recorded in al-Tadhkirah. Among these are the following:

1. If one owes something to a person, and he tells one: "Give what you owe me to my son." when his son is legally incapable, and one does so on the basis of the father's behest, and by chance the child loses it, in such a situation one's liability concerning the debt does not cease and the creditor is still entitled to demand it from one, although it was he who asked one to deliver it to his son. Similarly, the child will not be responsible for the thing he has lost, and one is neither entitled to claim it from his guardian nor from him on his attaining majority.

As to one's remaining liable for the debt, this is because the debt is not cleared unless it is validly delivered, and it is presumed that neither the creditor nor his authorized representative has taken delivery. As to the delivery taken by the child, its occurrence and non-occurrence are equal, presuming his incapacity for taking and giving delivery. As to the father's permission to deliver to the child, it is exactly like someone telling one: "Throw what you owe me into the sea," and one does as he tells one. Here, one's liability for the debt is not cast off.

The reason for not considering the child liable for the thing delivered to him is that it is the deliverer who has destroyed it by improperly using his discretion and giving it to someone whose possession has no effect, even if it is by the permission and order of the child's guardian.

2. Where one has in one's possession something belonging to a child and his guardian tells one to give it to him, and one gives it to the child who destroys it, one will be liable for it because one is not entitled to act negligently regarding the property of someone legally incapable even if his guardian permits it.

3. If a child gives one a dinar to see whether it is genuine or counterfeit, or gives one an article for pricing it or selling it or for some other purpose, it is not valid for one, after it has come into one's hands, to return it to him; rather one must return it to his guardian.

4. If two children buy and sell between themselves and each takes delivery from the other and then both destroy what they have received, their guardians will be liable if they had permitted the transaction; if not, the liability will be borne from the property of each child.

This is what the Imami legists have observed, but what we consider appropriate is this: If we know doubtlessly that a particular disposition of a discerning child is cent per cent to his benefit, it is obligatory for his guardian to accept it and he cannot annul it, especially if his annulling it entails a loss for the child.

As to the general proofs which indicate that a child's disposition is void, they either do not include this situation or it is exempted from these general proofs. This is so because we are sure that the purpose of the Shari'ah is benefit, and when we are certain that it exists, we are bound to accept it exactly like our acceptance of a self-evident notion or a valid syllogism. And this is not ijtihad contradicting nass (an explicit Qur'anic verse or tradition); rather, it amounts to acting in accordance with nass for the knowledge of the aim of the Shari'ah is exactly like the knowledge of a nass, if not a nass itself.

If we were to accept the view of the Imami and the Shafi'i schools, a prize – for instance, a watch - given by the school to the best student would be something out of place, and if a child under the age of majority were to receive it he would not own it. This is something unnatural and goes against the practice of rational beings, creeds and religions.

A Child's Intentional Act is a Mistake

If a child kills a person or injures him or severs any part of his body, he will not be subject to retribution. He will be dealt exactly like an insane person, because he is not capable of being punished, neither in this world nor in the Hereafter. A tradition states:

عمد الصبي خطأ

A child's intentional act is a mistake.
There- no difference of opinion among the schools concerning this. As to the compensation given to the victim, it will be borne by the paternal relatives (al-‘aqilah).

In some circumstances where beating a child is permissible, it is only for reforming him, not as retribution (qisas) or punishment (ta’zir).

3. Idiocy (al-Safah)

An 'idot' differs from a child due to majority and from an insane person on account of sanity. Thus idiocy as such is accompanied with the capacity to comprehend and distinguish. An 'idiot' is one who cannot manage and expend his property properly, irrespective of whether he has all the qualities necessary for its proper management but is negligent and does not apply them, or lacks these qualities. In short, he is negligent and extravagant, in that he repeatedly performs acts of negligence and extravagance. The acts of extravagance may be such as donation by him of all or a major part of his wealth, or building a mosque, school or hospital which a person of his social and monetary status would not build, so that it is detrimental to his own interests and those of his dependants, and the people view him as having strayed from the practice of rational persons in the management of property.

Declaration of Legal Disability (al-Tahjir)

The schools - with the exception of Abu Hanifah - concur that the idiot's legal disability is confined to his financial dispositions, and excepting where his guardian permits him, his position in this regard is that of a child and an insane person. He is totally free regarding his other activities that are not closely or remotely connected with property. An idiot's disability continues until he attains mental maturity, in accordance with the following verse:

وَلاَ تُؤْتُوا السُّفَهَاءَ أَمْوَالَكُمْ الَّتِي جَعَلَ اللَّهُ لَكُمْ قِيَاماً وَارْزُقُوهُمْ فِيهَا وَاكْسُوهُمْ وَقُولُوا لَهُمْ قَوْلاً مَعْرُوفًا وَابْتَلُوا الْيَتَامَى حَتَّى إِذَا بَلَغُوا النِّكَاحَ فَإِنْ آنَسْتُمْ مِنْهُمْ رُشْداً فَادْفَعُوا إِلَيْهِمْ أَمْوَالَهُمْ

And do not give to fools your property which Allah has assigned to you to manage; provide for them and clothe them out of it, and speak to them words of honest advice. And test the orphans until they reach the age of marrying; then if you find in them mental maturity, deliver to them their property; (4:5-6) 3

This is the view of the Imami, Shafi'i, Maliki and the Hanbali schools, as well as that of Abu Yusuf and Muhammad, the two disciples of Abu Hanifah.

Abu Hanifah observes: Mental maturity is neither a condition for delivering property to its owners nor for the validity of their monetary dispositions. Thus if a person attains puberty in a state of mental maturity and then becomes an idiot, his dispositions are valid and it is not valid to consider him legally incapable even if his age is less than 25 years. Similarly, one who attains puberty in a state of idiocy so that his childhood and idiocy are concomitant, he will not be considered legally incapable in any manner after attaining maturity at 25 years (Fath al-Qadir and Ibn 'Abidin).

This contradicts the explicit ijma’ of the entire ummah, or rather it contradicts the obvious teaching of the faith as well as the unambiguous text of the Qur'an:

وَلاَ تُؤْتُوا السُّفَهَاءَ أَمْوَالَكُمْ

The Judge's Order

Imami legal authorities state: The criterion for considering the dispositions of an idiot as void is appearance of idiocy, not the order of a judge declaring him legally incapable. Thus every disposition of his during the state of idiocy is void, irrespective of whether a judge declares him incapable or not, and regardless of whether his idiocy continues from childhood or occurs after puberty. Hence, if an idiot acquires mental maturity, his disability will be removed, returning only on the return of idiocy and disappearing with its disappearance (al-Sayyid al-Isfahani, Wasilat al-najat). This opinion is very close to the one expressed by the Shafi'i school.

The Hanafi and the Hanbali schools observe: An idiot will not be considered legally incapable without the judge's declaration. Therefore, the dispositions prior to the declaration of his legal disability are valid even if they were improper: after the declaration his dispositions are not enforceable even if appropriate.

This opinion cannot be substantiated unless we accept that the declaration of the judge alters the actual fact. This view is confined to the Hanafis only. As to the Shafi'i, Maliki and the Hanbali schools, they concur with the Imamiyyah in holding that the judge's order has no bearing, close or remote, on the actual fact, because it is only a means and not an end in itself. We have dealt with this issue in detail in our book Usul al-ithbat.

The Malikis say: When a person, man or woman, comes to be characterized with idiocy he becomes liable to be declared legally incapable. But if idiocy occurs after a short period, say a year after his attaining puberty, the right to declare his legal incapacity lies with his father, because the time of its occurrence is close to the period of his attaining puberty. But if it occurs after a period exceeding a year after puberty, his disability can be only declared by a judge (al-Fiqh 'ala al-madhahib al-'arba'ah, vol. 2, ‘bab al-hajr’).

The Malikis also observe: A woman, even if she becomes mentally mature, is not entitled to dispose her property unless she has married and the marriage has been consummated. After the consummation of marriage, her right to donate is limited to one-third of the property, and for the remainder she requires the permission of the husband until her old age (al-Zarqani).

But all the other schools do not differentiate between the sexes, in accordance with the general import of the Qur'anic verse (4:6):

وَلاَ تُؤْتُوا السُّفَهَاءَ أَمْوَالَكُمْ

The Idiot's Confession, Oath and Vow

If an idiot is permitted to dispose his property and he does so, the schools concur that it is valid. As to non-financial acts, such as his acknowledgement of lineage (nasab) or his taking an oath or a vow to perform, or abstain from, a certain act that does not involve property, these acts are valid even if the guardian has not permitted them.

If he confesses to having committed theft, it will be accepted only for the purpose of amputation and not for financial liability, i.e. his confession will have effect vis-a-vis the right of God (haqq Allah) and not vis-a-vis the rights of other human beings (haqq al-nas),

The Hanafis state: His confession will be given credence in regard to those of his assets which have been realized after his disability and not from what he owned at its advent. Also, his will is valid to an extent of one-third in matters of charity and benevolence.

The Imamiyyah state: There is no difference between the former and the latter properties. Rather, they say, it is not valid for an idiot to hire himself for any work even if advantageous without his guardian's permission. They also observe: If a person deposits something with an idiot with the knowledge of his idiocy and the idiot personally destroys it, either voluntarily or by mistake, he will be liable. But if the deposited thing is not destroyed personally by the idiot but as a consequence of his negligence in preserving it, he will not be liable, because in this situation the depositor himself has been negligent and at fault. As to the liability of the idiot where he personally destroys the deposit, it has its basis in the dictum:

مَن أتلف مال غيره فهو له ضامن

'He who destroys another's property is liable for it.' (Wasilat al-najat)

The Idiot's Marriage and Divorce

The Shafi’i, Hanbali and Imami schools say: The idiot's marriage is not valid, and his divorce (talaq or khul’) is valid. But the Hanbalis allow his marriage where it is a necessity.

The Hanafis observe: His marriage, divorce, and freeing a slave are valid, because these three are valid even when performed in jest, and with greater reason in a state of idiocy. But if he marries for more than mahr al-mithl, the mahr will be valid only to the extent of mahr al-mithl.

The Proof of Mental Maturity

The schools concur that mental maturity (rushd) is ascertainable through testing, in accordance with the words of God Almighty:

وَابْتَلُوا ...فَإِنْ آنَسْتُمْ مِنْهُمْ رُشْدًا

But the modes of testing are not specific, though the legists mention as examples such methods as handing over to a child the management of his property, or relying upon him to buy or sell for fulfilling some of his needs, and the like.

If he shows good sense in these activities, he will be considered mentally mature. As to a girl, she will be given domestic responsibilities to ascertain her mental maturity or the lack of it.

As per consensus, mental maturity in both the sexes is proved by the testimony of two male witnesses because the testimony of two male witnesses is a principle. The Imamiyyah say: It is also proved in the case of women by the testimony of a man and two women, or that of four women. But in the case of men, it is only proved by the testimony of men (al-Tadhkirah).

The Guardian

A Minor's Guardian

We have discussed the legal disability of the minor, the insane person and the idiot. It is obvious that every legally incapable person needs a guardian or an executor to attend to the things concerning which his disability has been declared, and to manage them as his representative. Now, who is this guardian or executor? It is worth pointing out at the outset that the discussion in this chapter is limited to guardianship over property. As to guardianship concerning marriage, it has already been discussed in the related chapter.

The schools concur that the guardian of a minor is his father; the mother has no right in this regard except in the opinion of some Shafi'i legists. The schools differ concerning the guardianship of others apart from the father. The Hanbali and the Maliki schools state: The right to guardianship after the father is enjoyed by the executor of his will, and if there is no executor, by the judge (hakim al-shar'). The paternal grandfather has no right to guardianship whatsoever, because, according to them, he does not take the father's place in anything. When this is the state of the paternal grandfather, such is the case of the maternal grandfather with greater reason.

The Hanafis say: After the father the guardianship will belong to his executor, then to the paternal grandfather, and then to his executor. If none are present it will belong to the judge.

The Shafi'is observe: It will lie with the paternal grandfather after the father, and after him with the father's executor, followed by the executor of the paternal grandfather, and then the judge.

The Imamiyyah state: The guardianship belongs to the father and the paternal grandfather simultaneously in a manner that each is entitled to act independently of the other, though the act of whoever precedes acquires legality, in view of that which is necessary. If both act simultaneously in a contrary fashion, the act of the paternal grandfather will prevail. If both are absent, the executor of any of them will be the guardian. The grandfather's executor's acts will prevail over those of the father's executor. When there is no father or paternal grandfather nor their executors, the guardianship will be exercised by the judge.

The Guardian of an Insane Person

An insane person is exactly like a minor in this regard, and the views of the schools are similar for both the cases, irrespective of whether the child has attained puberty while continuing to be insane or has attained puberty in a state of mental maturity to become insane later. Only a group of Imami legists differ here by differentiating between insanity continuing from minority and that which occurs after puberty and mental maturity. They say: The father and the paternal grandfather have a right to guardianship over the former. As to the latter, the hakim al-shar' will act as his guardian despite the presence of both of them. This view is in consonance with qiyas (analogical reasoning) practised by the Hanafis, because the guardianship of both the father and the paternal grandfather had ended (on the child's attaining puberty and mental maturity), and that which ends does not return. But the Hanafis have acted here against qiyas and have opted for istihsan.

The Imami author of al-Jawahir says: It is in accordance with caution (ihtiyat) that the paternal grandfather, the father and the judge act in consonance, i.e. the property of an insane person between whose insanity and childhood there is a time gap, will be managed by mutual consultation among the three. Al-Sayyid al-Isfahani remarks in al-Wasilah: Caution will not be forsaken if they act by mutual consent.

In my opinion there is no doubt that caution is a good thing, but here it is only desirable and not obligatory, because the proofs establishing the guardianship of the father and the paternal grandfather do not differ in the two situations. Accordingly, the father and the paternal grandfather will always be preferred to the judge, because the applicability or inapplicability of a particular rule revolves around its subject, and the generality of the proofs proving the guardianship of the father and the paternal grandfather enjoy precedence over the generality of the proofs proving the judge's guardianship.

Apart from this, the sympathy of the judge or someone else cannot equal that of the father and the grandfather, and what rational person would approve the appointment by the judge of a stranger as a guardian over a legally incapable person whose father or paternal grandfather are present and fulfil all the necessary conditions and qualifications?

The Guardian of an Idiot

The Imami, Hanbali and Hanafi schools concur that if a child attains puberty in a state of mental maturity and then becomes an idiot, his guardianship will lie with the judge to the exclusion of the father and paternal grandfather, and, with greater reason, to the exclusion of the executors of their wills.

That which was observed concerning an insane person holds true here as well, that no rational person would approve that a judge appoint a stranger as guardian in the presence of the father and the paternal grandfather. Hence, as a measure of caution, it is better that the judge choose the father or the paternal grandfather as the guardian of their child. However, if the idiocy has continued from childhood and the subject has attained puberty in that state, the opinion of the three above-mentioned schools is similar to their opinion concerning a minor (al-Mughni, al-Fiqh 'ala al-madhahib al-'arba'ah, Abu Zuhrah and al-Jawahir). 4

The Shafi'is neither differentiate between the guardianship of a minor, an insane person and an idiot, nor between idiocy occurring after puberty and one continuing from childhood.

The Qualifications of a Guardian

The schools concur that a guardian and an executor require to be mentally mature adults sharing a common religion. Many jurists have also considered 'adalah (justice) as a requirement even if the guardian is the father or the grandfather.

There is no doubt that this condition (‘adalah) seals the door of guardianship firmly with reinforced concrete and not merely with stones and mud. Apart from this, 'adalah is a means for safeguarding and promoting welfare, not an end in itself. The inclusion of 'adalah as a condition, if it proves anything, proves that 'adalah was not something rare in the society in which those who consider it necessary lived.

There is consensus among the schools that those dispositions of a guardian which are for the good and advantage of the ward are valid, and those which are detrimental are invalid. The schools differ concerning those dispositions which are neither advantageous nor detrimental. A group of Imami legists observe: They are only valid if the guardian is the father or the paternal grandfather, because the condition for their dispositions is the absence of harm, not the presence of an advantage. But where a judge or an executor is involved, their dispositions are valid only when advantageous. Rather, some of them observe: The dispositions of a father are valid even if they are disadvantageous and entail a loss for the child. 5

Other non-Imami schools state: There is no difference between the father, the paternal grandfather, the judge and the executor in that the dispositions of all of them are invalid unless they are advantageous and entail benefit. This is also the opinion of a large number of Imami legists.

On this basis, it is valid for the guardian to trade with the wealth of his ward - be he a child, an insane person or an idiot - or to give it to another to trade with it, to buy with it real estate for his ward, and to sell and lend from what belongs to him, provided all this is done for benefit and with good intention, and the surety of benefit in lending is limited to where there is a fear of the property being destroyed.

It is beneficial here to mention some sub-issues mentioned by the great Imami legist al-‘Allamah al-Hilli in al-Tadhkirah, ‘bab al-hajr’.

1. Pardon and Compromise (al-'Afw and al-$ulh)

Some Imami scholars have said: A child's guardian can neither demand qisas (retaliation), a right to which his ward is entitled, because the child may opt for pardon, nor can he pardon, because the child may opt for the execution of the sentence for his own satisfaction. Al-'Allamah al-Hilli has then opined that a guardian can demand the execution of the sentence, or pardon, or conclude a compromise regarding a part of the child's property, provided it is advantageous.

2. Divorce and Pre-emption (al-Talaq and al-Shuf'ah)

A guardian is not entitled to divorce the wife of his ward, irrespective of whether it is with or without any monetary compensation.

If there is along with the child a co-sharer in a property and the co-sharer sells his share to a stranger, the guardian of the child is entitled to opt for pre-emption or to forgo it, depending on the child's interest. This is the more sahih of the two opinions subscribed to by the Shafi’is.

3. Deduction of Claims (lkhraj al-Huquq)

It is obligatory upon the guardian to deduct from the property of his ward those claims whose payment is compulsory, e.g. debts, criminal damages, zakat, even if they have not been claimed from him. As to the maintenance of those relatives whose maintenance is wajib upon the child, the guardian will not pay it to the person entitled unless it is demanded.

4. Spending Upon the Ward

It is obligatory upon the guardian to spend towards his ward's welfare and it is not permissible for him to act either niggardly or extravagantly. He is expected to act moderately, keeping in mind the standard of those similar to the ward.

The guardian and the executor are trustees and are not liable unless breach of trust or negligence is proved. Hence, when a child attains puberty and claims breach of trust or negligence on behalf of the guardian, the burden of proof lies on him, and the guardian is only liable to take an oath, because he is a trustee and the dictum, 'The trustee is liable to nothing except an oath' (وما على الأمين إلاّ اليمين. ) will apply.

A Guardian's Sale to Himself

The Shafi'is as well as some Imami legists observe: It is not valid for a guardian or an executor to sell himself any property belonging to his ward or to sell his own property to the ward. Al-'Allamah al-Hilli himself has considered it permissible, making no distinction between the guardian and a stranger, provided such a deal is advantageous (for the ward) and no blame is involved. Similarly it is also permissible for a guardian appointed by the judge to sell to the judge an orphan's property whose sale is valid. This also applies to an executor, even if he has been appointed by the judge to act as a guardian. As to the judge selling his property to the orphan, Abu Hanifah has prohibited it on the basis that it amounts to the judge's pronouncing a decision concerning himself, and such a judgment is void. Al-'Allamah al-Hilli says: "There is nothing objectionable in it," i.e. the opinion of Abu Hanifah.

As may be noted, there is more to it than mere objectionability, because this act is neither the same as pronouncing judgment nor related to it, closely or remotely. Therefore, if it is valid for a judge to buy from the property of an orphan provided it is advantageous, it is also valid for him to sell to the orphan if advantageous, and the distinction is arbitrary.

The Guardian's or Executor's Agent

The guardian and the executor are entitled to appoint others as their agents for those activities which they are not capable of performing personally, as well as for those activities which they are capable of performing personally but do not consider it appropriate on the basis of custom to perform them personally. But where they consider it appropriate, the opinion prohibiting it is preferable.

It is evident here that acting personally or through an agent is a means for securing the ward's advantage and for fulfilling what is wajib. So wherever this end is achieved, the act is valid, irrespective of whether it is performed by the guardian or his agent: otherwise, the act is not valid even if performed by the guardian himself.

4. The Insolvent Person (al-Muflis)

'Muflis', literally, means someone who has neither money nor a job to meet his needs. In legal terminology it means someone who has been declared legally incapable by the judge because his liabilities exceed his assets.

The schools concur that an insolvent person may not be prohibited from disposing his wealth, regardless of the extent of his liabilities, unless he has been declared legally incapable by the judge. Hence, if he has disposed of all his wealth before being declared incapable, his dispositions will be considered valid and his creditor, or anyone else, is not empowered to stop him from doing so, provided these dispositions are not with an intent to elude the creditors, especially where there is no reasonable hope of his wealth returning.

A judge will not declare a person insolvent unless the following conditions exist:

1. Where he is indebted and the debt is proven in accordance with the Shari'ah.

2. Where his assets are less than his liabilities. There is consensus among the schools regarding these two conditions.

The schools also concur on the validity of the declaration of disability where the assets are less than the liabilities. They differ where the liabilities are equal to the assets. The Imami, the Hanbali and the Shafi'i schools state: He will not be declared legally incapable (al-Jawahir, al-Tanqih and al-Fiqh 'ala al-madhahib al-'arba'ah). The two disciples of Abu Hanifah, Muhammad and Abu Yusuf, observe: He will be declared legally incapable. The Hanbalis have followed these two in their fatwa. But Abu Hanifah has basically rejected the idea of considering an insolvent person as legally incapable even if his liabilities exceed his assets because legal disability entails the waste of his capabilities and human qualities. However, Abu Hanlfah says: If his creditors demand payment, he will be imprisoned until he sells his property and clears his debts.

This form of imprisonment is reasonable - as we will point out later – where the debtor has some known property. But Abu Hanifah has permitted his detention even if no property is known to exist in his name. The following text has been narrated from him in Fath al-Qadir (vol.7, p.229, ‘bab al-hajr bi sabab al-dayn’): If no property is known to be owned by the insolvent person, and his creditors demand his detention while he says: "I have nothing." the judge will detain him for debts accruing from contractual obligations, e.g. mahr and kifalah.

This is contrary to the explicit Qur'anic verse:

وَإِنْ كَانَ ذُو عُسْرَةٍ فَنَظِرَةٌ إِلَى مَيْسَرَةٍ

...if the debtor is in straitened circumstances, then let there be postponement until they are eased. (2:280)

Moreover, there is consensus on the issue among all the legal schools of the Ummah: the Shafi'i, the Imami, the Hanbali, the Maliki, as well as Muhammad and Abu Yusuf (Fath al-Qadir, Ibn 'Abidin, al-Fiqh 'ala al-madhahib al-'arba'ah, and al-Sanhuri in Masadir al-haqq, vol. 5)

3. The debt should be payable presently, not in the future, in accordance with the opinion of the Imami, Shafi'i, Maliki and Hanbali schools. But if part of it is to be paid presently and part of it in the future, it will be seen whether the assets suffice for clearing the present debts; if they do, he will not be declared legally incapable; if not, he will be declared so. If he is declared legally incapable for debts presently payable, the debts payable in the future will remain till the time of their payment arrives (al-Tadhkirah and al-Fiqh 'ala al-madhahib al-'arba'ah).

4. That the creditors, all or some of them, demand the declaration of his legal disability.

When all these conditions are present, the judge will declare him legally incapable and stop him from disposing his property by selling, renting, mortgaging, lending, and so on, being detrimental to the interests of the creditors.

The judge will sell the assets of the insolvent person and distribute the proceeds among his creditors. If they suffice for repaying all the debts, they will be so applied. In the event of their falling short, a proportionate distribution will be affected.

On the completion of the distribution, the disability will automatically end, because its purpose was to safeguard the interests of the creditors and this has been achieved.

Exceptions:
Al-'Allamah al-Hilli observes in al-Tadhkirah, ‘bab al-taflis’: From among the assets of the insolvent person, the house where he resides, his slave, and the horse which he rides will not be sold. This is the view held by the Imamiyyah, Abu Hanifah and Ibn Hanbal. Al-Shafi'i and Malik state: All of these will be sold.

A day's provision will also be left for him and his family on the day of distribution, and if he dies before the distribution, the cost of his shroud and burial will be met from his own assets, because funeral expenses have precedence over debts.

In fact all that which is immediately necessary will be left for him, e.g. clothes, a day's provision or more, in accordance with the circumstances, books that are essential for someone like him, the tools of his trade by which he earns his living, the necessary household goods such as mattresses, blankets, pillows, cooking pots, plates, pitchers, and all other things which one requires for his immediate needs.

A Particular Thing and Its Owner

If an owner (from among the creditors) finds a particular thing which the insolvent person had purchased from him on credit, that thing will belong to him in preference to all other creditors even if there exists nothing else besides it. This is the opinion of the Imami, Maliki, Shafi'i and the Hanbali schools.

The Hanafis observe: He is not entitled to it but will have a joint interest in it with the other creditors (al-Tadhkirah and Fath al-Qadir).

Wealth Accruing after Insolvency

If after legal disability any wealth accrues to an insolvent person, will his disability extend to it exactly like the wealth existing at the time of the disability, or not? Will the insolvent person be completely free in his dispositions concerning it?

The Hanbalis say: There is no difference between the wealth acquired after insolvency and the wealth present at the time of it.

The Shafi'is hold two opinions, and so do the Imamiyyah. Al-'Allamah al-Hilli states: That which is more likely is that the disability extends to it as well, because the purpose of the disability is to give those entitled their claims, and this right is not limited to the wealth existing at the time of the declaration.

The Hanafis observe: The disability does not extend to it and his dispositions as well as acknowledgement (of debt) are valid in regard to it (Fath al-Qadir, al-Tadhkirah, and al-Fiqh 'ala al-madhahib al-'arba'ah).

If a crime has been committed against an insolvent person, if it is unintentional and requires the payment of damages, the insolvent person cannot pardon the crime because the right of the creditors extends to it, and if it is intentional and entails qisas, the insolvent person is entitled either to take qisas or to opt for damages, and the creditors are not entitled to force him to take damages and forsake qisas (al-Jawahir).

The Acknowledgement of an Insolvent Person

If after being declared legally incapable an insolvent person acknowledges being indebted to some person, will his word be accepted and that person included among the creditors at the time of distribution of the property?

The Shafi'i, the Hanafi and the Hanbali schools observe: His acceptance will not be valid in respect to his property present at the time of declaration of his insolvency.

The Imami legists differ among themselves, with the author of al-Jawahir and a large number of other authorities subscribing to the view of the Hanbali, Shafi'i and Hanafi schools.

Marriage

The Hanafis say: If an insolvent person marries after his being declared legally incapable, his marriage is valid and his wife is entitled to be included among the creditors to the extent of mahr al-mithl, and that which exceeds it remains a claim against him.

The Shafi’i and the Imami schools observe: The marriage is valid but the entire mahr will be considered a claim against him and the wife will not be entitled to anything along with the creditors.

Imprisonment

The Imamiyyah say: It is not valid to detain a person in financial straits despite the disclosure of his insolvency because the Qur'anic verse says:

وَإِنْ كَانَ ذُو عُسْرَةٍ فَنَظِرَةٌ إِلَى مَيْسَرَةٍ

And if the debtor is in straitened circumstances, then let there be postponement until they have eased (2:280).

If he is found to possess any known asset, the judge will order him to surrender it, and if he refuses to comply, the judge is entitled either to sell it and clear the debts - because the judge is the guardian (wali) of the uncompliant - or to imprison the debtor until he clears his debts himself, in accordance with the tradition:

الواجد تحلّ عقوبته وعرضه

It is legitimate to punish and humiliate (as when the creditor calls his debtor 'injust', 'a delayer', etc.) a debtor who possesses (financial capability).

Abu Hanifah observes: The judge is not entitled to sell his property against his will, but he can imprison him.

Al-Shafi'i and Ibn Hanbal state: The judge is empowered to sell and clear the debts (al-Tadhkirah and al-Jawahir).

Prohibition on Travelling

There is no doubt that if it is permissible to punish a debtor by imprisonment it is also valid to prohibit him from travelling provided the necessary conditions exist. These conditions are: the debt be proven as per the Shari'ah; the debtor be capable of repaying it, and he procrastinate and keep on postponing payment. Apart from this, the interests of the creditors should be feared to be in jeopardy if he travels, such as where the journey is long and dangerous. Hence if the debt is not proved, or is proved but the debtor's circumstances are straitened and he is unable to repay, or he has an agent or surety, or there is no fear of the creditors' interests being hurt if he travels, in all these circumstances it is in no way permissible to prohibit him from travelling.

From here it becomes clear that the measures taken by the courts in Lebanon for stopping a defendant from travelling simply on the initiation of proceedings against him have no basis in the Islamic Shari'ah but in positive law.

- 1. Last illness (marad al-mawt) is also one of the causes, considering that it leads the person in last illness to being prohibited from dispositions exceeding one-third of his property. We have already discussed this in the chapter on wills under the title, ‘Dispensations of a critically ill person.’ Please refer.

- 2. Every moral duty that is a duty vis-à-vis God Almighty is conditional on mental maturity (‘aql) and puberty (bulugh), whereas every economic duty vis-à-vis people is not conditional to mental maturity and puberty.

- 3. At first the Qur’anic verse mentions the property of the legally incapable while relating it to the second person (kaf al-mukhatab in اموالكم ) and the second time to the third person (ha’ al-gha’ib in امولهم ), alluding thereby that everything owned by an individual has two aspects: firstly, his personal authority over it, and secondly, that he apply it in a manner profitable to himself and the society, or, at the worst, in a manner unharmful to the two.

- 4. The author of al-Jawahir observes in the ‘bab al-hajr’: “There is ijma’ among the Imamiyyah that if idiocy occurs after the attainment of puberty, the guardianship will be exercised by the judge, and if it continues from childhood, the ijma’ has been narrated that it belongs to the father and the paternal grandfather. But the truth is that there is a difference of opinion in the latter case, and a group of scholars has explicitly mentioned that the guardianship belongs to the two.

- 5. Al-Na’ini, in al-Khwansari’s Taqrirat (1357 H., vol.1, p.324) states: “The truth is that the guardianship of the father is a proven fact, even if it entails disadvantage or loss for the child.” But the complier of this work narrates from his teacher, al-Na’ini, that he retracted from this opinion after having been emphatic about it earlier.

Bibliography

Author(s):

- Muhammad Jawad Mughniyya [2]

Publisher(s):

- Ansariyan Publications - Qum [3]

Source URL: https://www.al-islam.org/five-schools-islamic-law-muhammad-jawad-mughniyya#comment-0

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[4] https://www.al-islam.org/printpdf/book/export/html/42705
[5] https://www.al-islam.org/printepub/book/export/html/42705
[6] https://www.al-islam.org/printmobi/book/export/html/42705