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Important Fiqh Decisions

Islamic Fiqh Academy (India)


Year of Publication 1996

Published by
Islamic Fiqh Academy (IFA), India
Post Box No. 9746, 161-F, Jogabai, Jamia Nagar, New Delhi -110025
Phone 6821779 Fax: (011) 6926106, 6820318
ifa@vsnl.net

Typed into Electronic Document format


without any changes to the original English translation

Additional footnotes have also been provided


By Ustdh,
Ahmed Fazel Ebrahim
Graduate of: Madrasah Arabiyyah Islamiyyah, Azaadville, South Africa
Also, Sanad in Hadth
from Mauln Abdur Rashid Numni, Allmah Binnori Town, Karachi, Pakistan

Johannesburg, South Africa


Document Version 8,63 Monday, 30 October 2006

Introduction
Fatw and contemporary needs
Compilations of contemporary fatw and of fatw upon which particular Ulam and
Muftn have achieved consensus during any period or geographic area is invaluable as
reference material to other Ulam, Muftn (Arabic plural of Muft) and fatw institutions.
These serve as readily available data for answering the many diverse queries that the Muftn
and Ulam receive. It also allows the evaluation of the scholastic opinions of other scholars
while simultaneously, perhaps, also lead us to other references and original sources of
information. Sometimes, we could learn details relative to the format in which particular ul
were applied in order to reach a decision. Historically, we find such compilations in every
time period and geographic sector of the Islamic world. Scholars of all schools of Islamic
jurisprudence participated to leave us a rich legacy of Islamic verdicts and other legal
material.
Although these can also be useful for the general Muslims, it could also create further
confusion and deviation from the path of Islam if the fatw are adopted, without guidance of
theUlam, for practical purposes since a fatw may relate only to a specific madhhab, or
express a ruling relative to a particular condition that cannot be applied everywhere, or it may
also relate to a matter that is associated to other factors that are not mentioned in the verdict.
A fatw will be very helpful if all the associated juridical reasoning is also included so that
the reader can clearly perceive the basis of the Islamic legal reasoning that governs a
particular condition or matter. This means that the verse and Surah be stated for Quranic
verses, sources and level of authenticity be provided for ahadith, references be given of other
sources of jurisprudence and details of provided in regard to the Usul adopted for inferring a
ruling. Often, due to time constraints, these matters are discarded from the verdict.
The poor levels of the Islamic education of general Muslims, and their ignorance in regard to
fatw, has led many of them to believe that a fatw from any source is a valid rule of Islamic
law. The reality is that a fatw, despite the possibility of it reflecting a correct rule on an issue
of Islamic law, may also be totally incorrect or limited in its scope for various reasons. It
could also specifically relate to the view of one mazhab and, thus, not apply to every other
person.
No rational person will use secular legal text books to do a cursory reading in order to argue a
case in the courts of law. Each secular legal system has its own unique identity, and its law is
interpreted and formulated through its very own formats. The same applies with the fatw of
the various mazhib. Often, only scholars with profound levels of Islamic knowledge grasp
the reasons and issues relative to the formulation of specific Islamic verdicts.
It is my ardent desire to gather the fatw of various institutions and academies of fiqh so that
these fatw can be evaluated against each other and against other opinions. This will enable
us to rectify errors as well as allow for detailed and greater information on any subject.
Unfortunately, in my attempt to do this, I found that the scholars refuse to co-operate. Some
Muftn fear that their errors would become manifest if they erred in any verdicts that they
issued. Thus, they prefered their personal glory above the need for spreading the Sharah in a
correct manner. Others scholars live with the humiliating mentality that if other people and
Ulam have the answers, they will loose their status, leadership, or recognition as Muftn.
Some institutes fear that they would loose their position as the leading fatw authority in the
community or country. Another shallow aspect pertaining to the weakness of the Imn of
some scholars and Ulam is that they refuse to share information due to jealously towards
other scholars, and because they fear that they would loose leadership amidst Muslims. They

thus desire to be the sole pivot upon who rests the function of issuing Islamic verdicts. Some
of them fear that this will lead to monetary and financial losses. Thus, Islamic knowledge is
deemed to be the private property of some of the very persons who ought to advocate its
spread. The early scholars of Islam always referred their students to those that were more
learned.
Other institutes and Muftn are obstinate and refuse to alter the rulings in their madhhab in
cases where the rulings have no sound basis and clearly conflict with authentic adth, or
where other authoritative views and interpretations of the Sharah refute the views that they
have adopted. May Allh save the Ummah from such a class of scholars and from such
institutions which promote and adopt their obstinate policies in relation to the affairs and
needs of the Ummah.
It is not uncommon for the Drul Ift (Division issuing Islamic verdicts) of some Islamic
institutes to prevent other Ulam from access to its fatw. This prevents other scholars from
evaluating the written fatw.
All Ulama, each Drul Ift and other institutes involved with the issuing of Islamic verdicts
must gather and collate their fatw or research conducted on an issue, have these re-checked,
then typed in a word processor and correctly filed in specific folders to ease referencing.
Other scholars, Ulam and institutions must then be allowed access to this information and
the created databases through distribution of disks, and any other digital and print storage
formats or via the internet and other digital copying methodologies.
The mutual exchange of scholarly writings is highly essential to the spread and growth of
Islamic knowledge. The international availability of internet services allows documents to be
transferred inter-continentally over night or within a few minutes. This information must be
shared purely for the sake of Allh. This will be a great means of help to all scholars and
Institutions that deal with fatw.
The need for the evaluation of the fatw of each madhhab is now at a critical juncture. The
Ulam of the different schools of Islamic law must gather all the fatw of their madhhib so
that these can be reviewed and errors be rectified. The most authentic viewpoints or allowable
differences must then be codified for use by the Muftn and Islamic courts.
Often serious mistakes are also found in the translations of the fatw. Thus, those that have
asked the questions are faced with incomprehensible or irrelevant answers. Sometimes a
single wrong word in a translation provides a wrong answer. Those translating fatw must
also check the original sources of reference to ensure the accurate transcription of the texts
that are translated.
We do recognize the need for confidentiality of names and the integrity of people. Private
details of persons and their names be extracted from the fatw in order to protect the dignity
and interests of the persons involved, but this is no excuse from concealing the fatw since
that would prevent evaluation from other scholars, as well as prevent others from benefiting
from what has already being researched.
A need exists for those engaged with fatw to understand the urgency relevant to unity since
the growing base of fatw written by scholars of various educational standards, diverse
madhhib and juridical trends or inclinations, and from a wide spectrum of international
institutions is placing the Ummah in havoc. The internet is also proliferating this conflict
although it is the very instrument that can serve to amalgamate the various viewpoints.

It is indeed a tragic moment of grievous proportions when we, as the ummah of Nabi S.A.W.,
sometimes or often, face a situation when certain ulam believe and promote the idea that
only ulam and scholars who graduated from their own type of institutions or their countries
are the people that have correctly understood Islm and that they alone are, therefore,
qualified to issue an Islamic verdict. Thus, there are cases where people making Haj,
unnecessarily phone their own Muft in a foreign country to resolve a matter that is easily
resolved by the Muftn of Saudi Arabia or by other Muftn who are also in the Haj. Allh had
not restricted the understanding of Islm to any geographic location or to a given race.
In an Islamic intellectual discourse, the objective is to reach the truth, to convey maximum
possible benefit and information to every other lim, Muft, scholar of Islamic law or any lay
Muslim. We cannot conceal information from each other. An Islamic panel that debates issues
in Islamic law ought to adopt taqw and earnestly and sincerely evaluate the opinions of other
jurists, fellow scholars or that which exists within any texts of the Sharah. Whenever Imm
Shfi debated with anyone, he desired that the truth be manifest on the tongue of the
opponent so that the opponent will more readily accept the truth.
The Public needs to financially support the Ulam so that this form of service can be granted
to the community. Unfortunately, we live in an era when the Muslims spend on entertainment
and on luxury goods. Many of them refuse to spend for Islamic and social needs but demand
the best of Islamic services.
Islamic jurisprudence requires an additional classification in the form of regulations and
Islamic case law. This is absolutely essential in order to establish a coherent Islamic Legal
system and for the purpose of the application of Muslim Personal Law in non-Muslim
countries.
I must thank Allah over and over for allowing me the pleasure and joy to respect every
madhhab, and every Mujtahid of Islam. The sweetness that flows from reading the texts of the
Fuqah of the various madhhib only broadens the intellectual horizons of true Islamic
scholars. Indeed, I do accept that not every scholar is erudite or intellectually and
educationally prepared, in order to correctly assimilate the differences and analyse the
contents of diverse verdicts relative to a single issue. Sincere efforts under scholastic guidance
will pave the way to understanding. The process may be a very long journey into the texts of
the primary and secondary sources of Islam, but it is not an impossible journey.
The inner dimensions relative to spiritual purity are highly effective in allowing the Islamic
scholar to gain insight into the oceanic content of Islamic jurisprudence. Let the external
aspects of the Sharah find expression on the limbs and allow the inner self to be in constant
submission and recognition of Allah. However, engagement with the esoteric only does not
provide an understanding of the technicalities of the Sharah, and neither qualifies any
individual to infer the orders of Allah from the sources of the Sharah. Rasulllah S.A.W.
instructed that the pious fuqah (jurists) be consulted in the formulation of an Islamic verdict.
This compilation
It was by pure coincidence that I desired to type the present work so that an electronic or
digital copy can be circulated over the internet. I subsequently found the need to place a few
footnotes on the material since much of the material required further elucidation for a wider
audience to benefit from the resolutions.
Certain sections of the translation have been badly translated and seem to very poorly reflect,
or fail to reflect, the sense of the original text. In this regard, the poor translation of the
Seventh Fiqh Seminar has been particularly noted. In such cases, I have taken the liberty, but
with great care and caution, as well as with much thought, to place my own interpretations

within the footnotes so that the readers get, at least, some idea of the subject and details
conveyed.
Readers, Ulam and Muftn are requested to forward any constructive criticism and notes to
me so that future versions of this document can be rectified or be presented in greater detail.
I have neither seen any subsequent issues of this compilation or any issues in other languages.
However, I have seen the English translation of the 14th seminar which dealt with Gelatine,
Alcohol, World Peace and Islam and Waqf. The latter was also poorly translated in some
sectors. I request that anyone having such information kindly informs me or, even better,
presents me copies of the same so that it may be used to further the cause of disseminating
sound Islamic viewpoints.
Another compilation of this nature has been published by the Islamic Fiqh Academy which is
a division of the Middle Eastern body, the OIC (Organization of Islamic Conference).
Nature of the Resolutions
Although these resolutions are invaluable to the general Muslim public and the Ulam, the
absence of the details of the scholastic and academic debates with all the sources of evidence
that led to each resolution does not allow those intending to have a deeper understanding to
evaluate the resolutions in relation to its arguments. Therefore, also, the strength of the
arguments cannot be ascertained. It is thus important to have such details within a separate
publication which is specifically meant for those at a higher level of Islamic jurisprudence.
This prompted me to add some matter to corroborate some of the views or to further elucidate
the subject.
Scholars in the India Pakistan region are generally followers of the Hanafi mazhab.
Southern India has a segment of Shfi followers. Within the past century or earlier, the Salafi
movement is also gaining ground in both India and in Pakistan. I consider it essential for the
scholars who express their views to also specify their religious allegiance in regard to the
following of a mazhab or a given trend of juridical thought. This then enables us to evaluate
their opinions in relation to particular works of fiqh, specified usl (Theories of Islamic
Jurisprudence) and a defined boundary of analysis.
In matters relative to the affairs of the general Muslims, it is absolutely essential that the
views of the various madhhib are considered. The choice of the followers of specific
madhhib to follow the opinions of their own fuqah must be respected. Although, the
resolutions of the Islamic Fiqh Academy of India are said to be the unanimous decisions of
various scholars from diverse mazhib who attended the seminar, yet many rules, directly or
through analyses, are adopted in terms of the Hanafi madhhab. It is therefore that we could
say that many of these resolutions reflect a consensus of the Hanafi Ulam of specific
countries like India or Pakistan.
Where time has allowed, I added fatw from other schools in order to clarify or present the
views of other madhhib or to specify whether any given resolution is the view of a specific
mazhab. In this regard it is essential to note that although you can have an ijma of the
Ulam of a particular region, that ijma might just be the predominant consensus of the
ulama of a specific madhhab. Ulam of another madhhab, might create an ijma in the same
region and on the same issue. The latter ijma may or may not have the same conclusions as
the ijma of the other group. An example of this nature is found in these resolutions, and a
fatw from Al-Azhar had been placed in the footnote to reflect the correct Islamic ruling on
the matter. A comparative technique in evaluating the consensus reached by each of the fiqh
institutions would thus have tremendous benefits in restricting errors as well as in the

presentation of alternative arguments. Such a course of action will allow those of other
mazahib to adopt alternative views.
Often, even the common Muslims would refuse to, intellectually or otherwise, accept the
opinions of an Islamic jurist unless they accept his strain of legal thought and madhhab; and,
in some cases, they want to be convinced of his piety and obedience to Allah.
We have failed to sufficiently educate our Muslim brethren on the differences within Islamic
fiqh. Thus, when integrating with Muslims of other cultures, the general non-scholastic
classes of Muslims and professional persons who have minimal Islamic education find that
there is a clash in Islamic interpretations. They need to be educated in regard to the
formulation of Islamic Law and in relation to the acceptance of the allowable differences that
emanate through legal inferences.
I request Ulam, from all schools of thought, to provide me their constructive criticism on
any aspects relating to the footnotes that I added to these resolutions of the Fiqh Academy, or
in respect of the actual resolutions. Also provide me other valuable material which can
enhance the juridical matter at hand or any other matters. I openly invite every lim, institute
and every other Muslim brother/sister that cares about Islam to join and direct me in the path
to Islamic elevation.
I was very fortunate to have found the digital version [at www.islamic-council.gov.eg or
www.alazhr.org ] of the fatw selected from the hundred year collection of fatw that were
written by scholars at Al-Azhar of Cairo, Egypt. It helped me clarify many issues and helped
to enhance the quality of this document. Some of these fatw were placed in the footnotes
while others were added as an addendum. May Allah reward the compilers, and grant them
further progress. Since many issues relating to Islamic or Muslim Personal law in Egypt
devolve upon Hanafi fiqh (jurisprudence), the review of the Al-Azhar fatw is highly
beneficial for Hanafi lam of other countries. The Al-Azhar fatw generally also included
juridical details from various mazahib, and thus form an essential and an additional reference
for Ulam of countries that have a wide variety of madhhib.
Some issues that were already discussed and resolved 20 or 30 years ago in the Egyptian set
of Al-Azhar fatw are found to have been only recently discussed at the Islamic Fiqh
Academy of India. Sometimes, the re-discussion is fruitful in a few aspects and adds more
detail to earlier fatw. At other times, the discussions were much less fruitful than that which
was already resolved a long time ago or decades ago in Al-Azhar. Thus, the interchange of
Islamic fatw would have saved time and monetary resources as well as resolved many
issues that are left pending for years. I am sure that adding a larger variety of fatw would
allow this document to be even more beneficial and more comprehensive.
The first Arabic fiqh text, Nrul dhh that I was taught is that of the Hanafi scholar,
Allmah Shurumbulli from Egypt. The Umdat-ul-Qr (Hanafi commentary of the
Bukhari) is by the Egyptian Allmah Badr-ud-dn Ayn. The major commentaries of the
Hanafi fiqh works of Hidyah and Kanz-ud-Daqiq have been by Egyptians. The
masterpiece, Fat-ul Bri is by an Egyptian. May other institutions also follow in the
footsteps of every other institution that helped to support and promote the various sectors of
the Sharah.
Ustdh, Ahmed Fazel Ebrahim

(Johannesburg, South Africa)

Graduate of Madrasah Arabia Islamia, Azaadville, South Africa

Contents
Preface
First Fiqh Seminar
1. Transplantation of organs
2. Pagdi
3. Birth Control
Conclusions
Second Fiqh Seminar
Conclusions
The issue of Pagdi
Transplantation of Human organs
Issue concerning Interest (Rib)
Bank Interest
Commercial interest and the Islamic Shariah
Dr-ul-Islam, Dr-ul-Harb and determining the status of other countries
according to the Shariah
Project for interest-free Banking
Third Fiqh Seminar
Islamic Banking
Suggestions to Islamic Scholars
1. Islamic Banking Guidelines
2. Murbaha or Mark-up pricing
3. Interest-Free Loan Societies
4. Sale of rights
5. Inter School debates
Fourth Fiqh Seminar
1. Problems of insurance in Indian background
2. Islamic Banking
Resolved
Fifth Fiqh Seminar
1. Bare necessities exempted from Zakh
2. Zakh on debts
3. Commercial Advances and Advance deposits on Account of House/Shop
Rents etc. and Zakh thereon.
4. Zakh on Diamonds
5. Zakh on Provident Funds
6. Amwl of Madaris
7. Zakh on Mal-e-Haraam
8. The meanings of Fee Sabeelillah
9. Stipends of the students
10. The status of Safeers, Muhassils and Mohtamims of Madrasah
11. Collection of Zakh on Commission
12. Life and property Insurance against communal violence

Sixth Fiqh Seminar


Ushri Lands
Following types of lands fall in the category of Khiraj lands
Conclusions
Method of payment of Khirj and adjusting it against the government revenue
On produce of Ushri Lands, trees and Khazrawat
Conclusions
Ushr and lands under tenancy
Deduction of expenses for determining the Nisaab
Ushr on Fish, makhana, silk, etc.
Ushr on the fruits and vegetables grown in the courtyard, roof-tops, adjoining
lands and on waqf lands
Islamic Banking and Shares
Seventh Fiqh Seminar
First resolution
Second resolution
Third resolution
Fourth resolution
Fifth resolution
Sixth resolution
Resolution regarding Zabiha by machine
1st resolution
ii nd resolution
iii rd. resolution
iv th resolution
Eight Fiqh Seminar
On Acquired Immune Deficiency syndrome (AIDS)
On Urf (USAGE) & Practises Urf and its forms
Conditions for Urf being acceptable
Urf and Shariah
Changes in Urf
Marriage with conditions
From resolution on the exclusion of females
The Agricultural Property
Islamic Fiqh Academy (India)
Aims and objectives

-------------------------------The following fatw from Al-Azhar (Cairo, Egypt)


were added by Ustaaz, Ahmed Fazel
Addendum 1:
Two Al- Azhar fatwas (1323) and (62) on Organ transplantation
Addendum 2:

Al-Azhar fatwa (27) on the distinction of a Darul Harb from Darul Islam
Addendum 3:
Al-Azhar fatwa (1314) Islamic and Ahlul Kitaab slaughtering requirements
Addendum No. 4 :
Al-Azhar fatwa (1315) The Slaughtering of the Ahlul Kitaab
Addendum No 5:
The Al-Azhar fatwa (1108) relating to stunning an animal by electricity
Addendum 5 (b)
Al-Azhar fatwa (1295) on stunning an animal
Addendum 6:
Al-Azhar fatwa (1109) Ahlul Kitaab slaughtering
Addendum No. 7:
Al-Azhar fatwa (305) on saying Bismillah at the time of slaughtering
Addendum 8:
Al-Azhar fatwa (1039) on the damages of an animal

Addendum No. 9:
Al-Azhar fatwa (1186) Intended wifes pre-marital condition to complete her
studies
Addendum No. 10
Al-Azhar fatwa 1150 and its response to the details in the magazine titled The
pulpit of Islamwhich was issued by Nasser Social Bank
Addendum 11
Bribery
Addendum 12
Amidst the errors of Shaikh Yusuf Al-Qardawi in his work The Halaal and the
Haraam in Islam
( ) :

A refutation of his view concerning the general allowance of consuming animals


or poultry that were electrically shocked/stunned by the Ahlul-Kitaab
An extraction by Ustadh Ahmed Fazel Ebrahim from a publication by
Imam Muhammad bin Saud Islamic University - Saudi Arabia
1396 27
Addendum 13
Urf

PREFACE
Law and jurisprudence survive only by their dynamism. Warmth and movement of
life is reflected in any living law. Implementation of law along with the changing pattern of
events is certainly a difficult and intricate task. Harmonious correlation of a moving law with
the changing pattern of time can be achieved only on the basis of certain basic principles and
concrete rules of its interpretation. The durability of Islamic jurisprudence, its vital capability
of giving correct lead and bringing discipline in human life is in fact indebted to the principles
deduced and drawn from the Quran and Sunnah by the jurists who have accomplished the
delicate task of correlating the rules of Fiqh in every age in keeping with the prevailing
conditions.
Once, there were versatile personalities having deep insight into the Holy Book, the Sunnah
and verdicts of the jurists, principles of analogy (al-Qiys) and methods of correlation. They
possessed a thorough knowledge of the general principles of Shariah, and its aims and
objectives. They were fully conversant with the trends, currents and under-currents of the
period they lived in. They used their skill with a high degree of God-fearingness and strict
adherence to the spirit of Shariah and tenets of the religion to find solutions of the problems
of their age. Their verdicts got credence and acceptance in the Muslim society.
The present era has brought multi-dimensional changes in the society. Progress of
science and technology has created new horizons. The world has shrunk down to the size of a
small settlement. New developments in social and economic fields have created new
problems and have thrown up new challenges. People who want to follow Islam and make
Sharah the standard guide in all the spheres of life are confronted with a number of
questions for which they seek guidance from theologians. On the other side such competent
persons who can solve these problems on the basis of their own knowledge and research and
whose verdict may be readily acceptable to the Muslim society are rare.
It was, therefore, a crying need to lay the foundation of a combined pool of opinions
where scholars of religion and theologians could find solutions of problems in the light of and
in conformity with the principles of Shariah.
The Islamic Fiqh Academy of India was founded in which renowned scholars and
experts of Medical Sciences, economics, sociology and psychology, in addition to Islamic
jurists and theologians were also included and it is heartening to note its echo outside India as
well. This small booklet includes the decisions taken in the seven seminars organised by the
Islamic Fiqh Academy and also the Aims and Objectives of the Academy. I am confident that
our intellectual class will be benefited by it and we will ever in future receive the cooperation
of the theologians, jurists and savants in fulfilling our aims and objects.
Mujahidul Islam Qasmi (Qadhi-e-Shariah, Bihar & Orissa, Phulwari Sharif, Patna)
Secretary General
Islamic Fiqh Academy (India)

FIRST FIQH SEMINAR NEW DELHI


April 1-3, 1989
The First Islamic Fiqh Seminar was held with the co-operation of the Institution of
Objective Studies (Chairman Dr. M..Manzoor Alam) at the Jamia Hamdard Campus, New
Delhi. Over 120 scholars, jurists and intellectuals from all parts of India representing different
seminaries and schools of thought participated.
In the Seminar, three issues were put for deliberations:
1. Transplantation of organs, 2. Pagdi and

3. Birth Control.

Exhaustive and scholarly papers were read on all the three subjects. After considering several
aspects of the Pagdi system and Transplantation of organs it was felt that they required
further deliberation and should not be decided in haste. Therefore, a questionnaire was
decided to be sent in this regard to theologians and experts of medical and social sciences. As
for birth control, the following conclusions were arrived at unanimously.
Conclusions:
1. Any practice snapping the process of or restricting the human birth is against the
basic tenets of Islam.
2. In no case does the Shariah approve the evasion or refusal of shouldering the
responsibility of procreation on the ground of keeping the family small as a fashion or
because of hindrance in cultural pursuits or because of effecting employment or
business engagements of the parents.
3. Women who take up employment as a career to achieve higher standards of living or
to amass wealth ignore their function of procreation and also forget the sacred
obligation which nature has blessed them with as mother of human race. Therefore,
the idea of limiting the family under these considerations is totally un-Islamic.
4. If due care and nourishment of the child falls in jeopardy because of early pregnancy
of the mother, in that case, to keep a suitable interval, temporary birth control devices
can be adopted.
5. Adopting permanent birth control devices (like vasectomy) are in no case permissible
for men. Such devices are prohibited for women as well.1 However, only in
1

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the following fatwa from Al-Azhar
.

. :

:
.( 1201)
. 1980 29 - 1401
:

1 .
. 2 : 1980 182 :

exceptional cases this is permissible, that is, if in the opinion of expert doctors there is
danger to life of the woman or apprehension of destruction of some organ of the
woman while delivering a child, oviductomy operation can be performed on the
woman to prevent future pregnancy.2
- 1 .

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Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the following fatwa from Al-Azhar
:
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1997 : .

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:
:

6. Use of temporary birth control measures under ordinary circumstances is not


permitted in Islam.3

.

.

.

.
"
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.
****************
Footnote by Ustdh, Ahmed Fazel Ebrahim

Refer to the following fatwa from Al-Azhar


:
) (211 .
1355 25 1937.

: .

:
1 . 2 .
3 . .
:

.
.
:

.






.
.

7. Under the following exceptional circumstances use of temporary birth control devices
or taking medicine for that purpose is permissible for men or women:
(a) If the woman is very weak and, in the opinion of doctors, she cannot bear the
rigours of child-birth without the risk of grave danger to her life.
(b) If the pains of child-birth are going to be, in the opinion of expert doctors,
unbearable for the woman and shall expose her to grave harm.

SECOND FIQH SEMINAR NEW DELHI


Dec. 8-11, 1989
The Second Fiqh Seminar was held by the Academy with the co-operation of the
Institute of Objective Studies in New Delhi from the 8th to the 11th of December, 1989 and
was inaugurated by the eminent Fiqh scholar of the Arab World, Dr. Jamaluddin Atiah
(Cairo). More than seventy jurists, intellectuals and Ulama from all parts of the country
participated in this Seminar. Many eminent persons and representatives of great seats of
Islamic learning in India also attended it.

CONCLUSIONS:
1. The issue of Pagdi.
Different views had been expressed in the first Fiqh Seminar (April 1989) on
the issue of Pagdi. In the light of those opinions, five questions were formulated and
were sent to various renowned Ulama and Muftis of India for eliciting their views.
Recorded below is the consensus as emerged from replies received:(i) As for the amount which the owner of a house receives from a tenant by way of
security deposit, it is desirable that the owner of the house keeps that amount with him
as it is. However, in case he makes use of the amount, it would be his responsibility to
repay the amount to the tenant forthwith on the termination of tenancy.4
.
.
. .
******************
4
Footnote by Ustdh, Ahmed Fazel Ebrahim: This basically means that where tenants or the lessee has
paid a deposit to the landlord or lessor, the landlord or the lessor is not entitled to use such a deposit
since it is money given in trust as a form of security in the possible event that the tenant fails to pay
rental, water & lights, etc. Thus, in the event that the tenant complies with the rental or lease
agreement and does not breach any terms of the contract, the lessor is obligated to refund the deposit.
Where the tenant has failed to pay the rental or water and lights; or, if agreed upon, the rates & taxes,
the lessor is entitled to deduct such payments, which are due from the tenant, from the deposit given.
Similar is the situation if the tenant has damaged anything in the property leased. Where, the lessor
has used the deposit, the tenant has a rightful claim to demand its payment on the termination of the
lease or, in the case where the lessor fails to meet the terms of the lease, upon the tenants justified
termination of the lease contract due to any breach by the landlord in relation to the terms of the
lease/rental contract. Where such a lease deposit is placed by the landlord into a conventional interest
banking account, then any interest received on the account would, despite its Islamic prohibition,
accrue to the account of the lessee.

(ii) When a house or shop is rented out and the landlord extracts5 some amount in
cash by way of Pagdi, as it is known these days, over and above and in addition to the
stipulated monthly rent, it could be deemed that the amount so received is in lieu of
his relinquishing his right to reclaim possession of his house from the tenant and it
would thus be Islamically permissible for him as being in lieu of his right to reclaim
possession of the house at will.6 In that case, when the landlord wishes to take back
the premises in his possession, it would be permissible for the tenant to demand and
obtain some mutually agreed amount from the landlord in lieu of his vacating the
premises and, further, it would also be permissible for him to obtain some mutually
agreed amount from another prospective tenant in lieu of transferring to him his right
to possession which he had earlier acquired against the landlord by paying some
amount to him for this purpose.7
Alternatively, if the lease deposit was placed in an Islamic Bank, any profits would likewise accrue
to the account of the lessee. Since, the lease deposit does not belong to the lessor, if the latter uses it
for any business without the consent of the lessee, any money earned on the deposit would accrue to
the account of the lessee. Also, the lessor would be liable for any losses made on the deposit in such
a case. Where the lessee grants the lessor the right to use the money, it would be considered a repayable loan that the lessor has to discharge on demand or as agreed between the parties.
Most likely these matters are concluded within the secular law lease agreements that the tenant enters
into with the landlord. Thus, when engaging into such lease agreements, it is essential to revise the
contract to comply with Shariah rulings in the matter. Refer to the chapters on Rahn (pledging) in
the works of Islamic jurisprudence to get details on this matter. In the case where Islamic Banks
secular sales or lease agreements with deposits, any return on the deposits will accrue to the benefit
of the purchaser or the lessee. This is in the case where the deposits are not deducted as partial
payment towards the purchased commodity or towards the lease agreement. Thus, in all these
situations, the lessor or landlord cannot stipulate a clause that states the lease deposit is nonrefundable.
5

Footnote by Ustdh Ahmed Fazel: i.e. he takes

Footnote by Ustdh, Ahmed Fazel Ebrahim: The Pagdi [lease deposit] (Rahn in Islamic terms) is not
in lieu of his relinquishing his right to reclaim possession of his house since the rental is actually in
lieu of his relinquishing his right to the leased property. Rather, the monetary consideration (rahn [in
Arabic]or Pagdi [in Indian terms]) is actually given to secure the lessor against any default in paying
the rental, water & lights or damage to the leased property. Thus, it is Islamically permissible to take
a Rahn in view of the latter aspects. Also, the landlord or lessor may not be enabled to take the leased
property back at will in some countries in accordance to the secular laws. Islamically also, it is unfair
and unethical to demand the lessees exit at will. It would be justified to provide the lessee a
reasonable notice in order to depart, failing which appropriate legal measures may be taken. The
terms of the lease agreement require to be upheld and, in the case of a breach of agreement, the
necessary measures should be adopted to ensure that the aggrieved party acquires legal relief.

Footnote by Ustdh, Ahmed Fazel Ebrahim: I do not have the original Arabic or urdu texts of these
resolutions. I presume that since this Seminar was held in New Delhi, the original texts were either in
Arabic or Urdu. Details of the translator have not been given in the work from which these details
were extracted.
Nevertheless, in the event that the tenant is required to vacate the leased premises, the tenant may
only justifiably claim for costs to relocate and other justified costs that increased or have to be
incurred as a result of an unfair termination of the lease in the event that the lessor has breached the
lease agreement. In the case where, the tenant was notified, at the inception of the lease, that he may
be required to vacate the premises on a contingent matter, then it is the tenant that takes the risk to
lease the property. Where, the landlord decides at will to evict the lessee, it is important for the lessee
to seek legal address where such an eviction is unjustified or based on the arbitrary decision of the

(iii) In case the owner has leased out the premises without securing Pagdi and without
specifying the period of lease, the landlord shall have the right to reclaim possession
of the premises whenever so desired. However, the landlord should give prior notice
to the tenant and allow him suitable time commensurate with the interest and
convenience of both to vacate the premises and the tenant should vacate within that
time.8
(iv) It will not be permissible for the tenant to demand any amount by way of Pagdi
from the landlord for vacating the premises in case the premises had been rented out
to him without obtaining any amount from him by way of Pagdi.
(v) The Seminar calls upon Muslims to observe the injunctions of Shariah in all
matters. The Shariah enjoins that all terms governing a contract must be explicitly and
unambiguously settled between the contracting parties so as to leave no room for any
difference or dispute in future and both parties are safe from any harm visiting them.
The seminar particularly emphasises that the tenure of lease should be clearly fixed
landlord. It is impossible for us to conceive that these measures are not allowed in Islam within the
context of the contemporary world. If Islam did not cater for economic justice and consideration of
human needs, its teachings would be held in contempt. In the case where no lease agreement exists
and there were no confirmed discussion on the format of ending the lease, and the tenant accepts to
re-locate, then, depending on the tenants financial position, it would be an act of Islamic kindness for
the lessor to financially aid the lessee with relocation costs.
Very often, secular states have all these matters codified in its legal system or its case law. It is
unfortunate that absolute essentialities of this nature cannot be found in a codified Islamic format
within the legal systems of Muslim countries. To be precise, I cannot make the latter claim. It is a
presumption.
Since the lease contract is between the lessee and the lessor, the lessee can only demand a mutually
agreed payment from another prospective lessee in the case where the lessor, prior to termination of
the lessees lease, agrees to allow the prospective lessee to lease the property. Such a payment will
then be in regard of the costs that the lessee will incur in relation to the lessees relinquishing his
right to the lease.
If we claim, that such a payment is also in relation to the loss of profits that a lessee of a business
property will incur, then we will be justifying the giving of a goodwill (extra amount beyond the
physical value of the goods and property of a business). The later is incorrect since that implies
demanding a value for no reciprocal return. The businessman has a choice to relinquish his lease or
continue it under normal circumstances. His acceptance to end his lease, since another prospective
lessee agrees to lease the property, implies his own willingness to forfeit possible profits that he may
make until the end of the lease term. In secular non-Islamic law, this is a valid consideration. If this
was a consideration in Islam, then everyone who sold anything that could be leased could demand a
consideration for the possible income received over the term of a lease or the possible life period of
the sold article. Thus, a person would be then be allowed to demand to demand a monetary
consideration beyond the price of the property or house that is leased purely because the landlord
earned an income from the house. Such a demand will be equivalent to the demand for interest which
is defined as a demand for a return without reciprocal financial value as recognized by Islam. The
latter is different from an intangible asset like a license to run a taxi for a given period within a given
city. Since such a intangible right is purchased, it may be resold by its owner to whoever pays the
price he claims.
8

Footnote by Ustdh, Ahmed Fazel: All these details were discussed in the previous footnotes. These
matters arise as arguments within Muslims when legal contracts are not made between the landlords
and the tenants. Sometimes, this is not done because of evading state taxes on income. In other cases,
it is not financially feasible to have official legal lease contracts. Muslims must learn to honour their
agreements in these matters and also not exploit their tenants.

and in case the landlord wishes to relinquish his right to reclaim possession of the
leased premises, the parties should specifically agree to it and to the terms thereof.
2. Transplantation of Human Organs
The problems and issues related to transplantation of human organs were
discussed thread-bare in the First Fiqh Seminar held on 1-3 April, 1989. The papers
presented in that Seminar and details of discussions have been published in the Bahso-Nazr, Quarterly, Patna.
In the First Seminar, there was consensus on some issues. For the rest of issues, in
order to arrive at a final decision, a sub-committee was formed to prepare a
questionnaire in the light of issues that emerged in the Seminar and to send it to
Ulama and Fuqaha for their opinion. The opinion of Ulama and Fuqaha was obtained
accordingly.
After going through those deliberations and the opinions so received, the
following conclusions were unanimously arrived at:
(i) If an organ of a person stops functioning and for the purpose of restarting its
functioning it becomes necessary to replace that organ, it is lawful to use:
(a) Inorganic objects such as metal, plastic etc.
(b) Organs of halaal animals which have been slaughtered according to Islamic
methods.9
9

Footnote by Ustdh, Ahmed Fazel Ebrahim: Mufti Shafi R.A. had advocated this in his urdu work
titled Insaani Ahdaa ke pehwandkaari (Transplantation of human organs). Refer to the following
fatwa from Al-Azhar
.

. :

:
.( 166)
. : 1997

:
: : :



:
.
. : .
:
" .733 1 "

3710". - "
*******************
The above fatwa where Imm Nawawi (of the Shfi school) expresses that a broken bone must be
replaced with a Thir bone. Besides the other details also given, he said that this is the view of Ab

(c) For replacement, the organs of such animals whose meat is haram, or of such
animals whose meat is halal but which have not been slaughtered in the prescribed
Islamic manner, in cases where there is no alternative available and either the life of
the person is in danger or the organ is in the danger of being completely damaged.10
If there is no strong danger to life or the organ being damaged, the use of the
organs of pigs11 is not permissible.
(ii) It is valid to replace a part of a persons body with another part of the same person
if necessity so demands.
(iii) It is not permissible to sell ones organs. It is Haram12.
(iv) In case a patient has reached the stage where his organ has stopped functioning
and there is strong danger that he will loose his life if the organ is not replaced
through transplantation, and there is no substitute for it except the human organ, and
medical experts are of the opinion that there is a strong likelihood of his life being
saved if transplantation of human organ is made and that the needed organs are also
available13, in such a desperate and unavoidable situation, transplantation of human
organ will be permissible for the patient to save his life.
(v) If a healthy person, in the light of the opinion of medical experts, is sure that
he/she can live with one kidney only, it will be valid for him/her to donate one kidney
to an ailing relative14, if it be necessary to save his life while no alternative is
available, but without charging any price.15
Hanfah and Mlik. It is thus possible and most likely that Mufti M. Shafi based his inferences
through the rulings given by the Fuqah on bone replacement.
10

Footnote by Ustdh, Ahmed Fazel Ebrahim: this is based on the Quranic allowance to eat pig in
order to protect life in the situation where there is absolutely no other Hall food available.

11

Footnote by Ustdh, Ahmed Fazel Ebrahim: or any Harm animal or hall animal that is not
slaughtered in a manner acceptable to the Shariah.

12

Prohibited in Islamic Law.

13

Footnote by Ustdh, Ahmed Fazel Ebrahim: The next point implies that if, in the case of a need for a
kidney, the absence of availability allows you to receive a kidney from a donor.

14

Footnote by Ustdh, Ahmed Fazel Ebrahim: This ruling is not limited to a relative but is extended to
any other Muslim. Often, because of other biological considerations, a Muslim is compelled to
accept the kidney of a non-Muslim. This would be allowed. No discussion as been done in relation to
a Muslim donating his kidney towards a non-Muslim. Some of our jurists would not permit that.

15

Footnote by Ustdh, Ahmed Fazel Ebrahim:

Refer to the following fatwa (74) from Al-Azhar


. :

:
.( 74)
. : 1997

(vi) If someone expressed his wish that after his death (testamentary disposition as it
is commonly known) his organs may be used for transplantation, it cannot be
considered as Wasiyah (Will) according to Shariah and is invalid according to
Shariah and such a wish is not to be honoured.16
: .
:

.


.


.
.

.

.
**********************
Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the following two fatwas from Al-Azhar
:
) ( 1087 .
1378 14 - 1959.

16

: .

:
1 .
2 . 3 . 4 . .
:
-

.
: .
-








. .

- -


-

.


. .
.
***********************
:
) ( 1069 .
1392 3 - 1973.

: .

:
1 . 2 .
3 .
4 . 5 . : - - 216 -1972/10/18

.
: -
-
-

.

.





.

.

. -
-
. .
.
****************

Names of the Ulama17 who have endorsed their views on Transplantation of


organs and have put their signatures to the above, are given below:
1. Maulana Zafeeruddin Saheb, Darul Uloom, Deoband.
2. Maulana Mohammad Habibur Rahman Khairabadi, Mufti Darul Uloom, Deoband.
3. Maulana Mohammad Rafi Usmani, Mufti & President, Darul Uloom Karachi, Pakistan.
4. Maulana Mufti Saeed Ahmad Palanpuri, Muhaddith, Darul Uloom, Deoband.
5. Maulana Abdur Rahman Saheb, Mufti Madrasa Aminia, Delhi.
6. Maulana Mujeebullah Nadvi, Jamiatur Rashad, Azamgarh.
7. Maulana Mohammad Adam Palanpuri, Mufti Jamia Naziria, Kakosi, Dist. Mehsana,
Gujrat.
8. Maulana Anwar Azmi, Mufti Darul Uloom, Mau.
9. Maulana Jamil Ahmad Naziri, Mufti & Nazim, Jamia Arabiah Ahyaul Uloom,
Mubarakpur.
10. Maulana Mehfoozur Rahman, Mufti, Jamia Miftahul Uloom, Mau.
11. Maulana Khalilur Rahman Azmi Umri, Nazim Jamia Arabiah Darussalam, Oomerabad
(Tamil Nadu).
12. Maulana Muhammad Ayub Nadvi, Jamia Islamia Bhatkal (Kamataka).
13. Maulana Zubair Ahmad Qasmi, Shaikhul Hadith, Darul Uloom Sabeelussalam,
Hyderabad.
15. Maulana Obaidullah Asadi, Ustad-e-Hadith, Jamia Arabiah, Hathwara, Banda, U.P.
16. Maulana Ziauddin Islahi, Nazim, Darul Musannefeen, Azamgarh.
17. Maulana Mohammad Abdullah Tariq, Basti Hazrat Nizamuddin, New Delhi.
18. Maulana Mohammad Asad Qasmi, Darul Uloom Islamia, Basti, U.P.
19. Maulana Maazul Islam. Ustad Madrasa Imdadia, Moradabad, U.P.
20. Maulana Mohammad Mustafa Miftahi, Mufti Darul Uloom, Rajasthan.
21. Maulana Abdul Ahad Azhari, Qazi-e-Shariat, Darul Qadha, Malegaon (Maharashtra).
22. Maulana Siraj Ahmad. Mufti, Madrasa Mahed-e-Millat, Malegaon (Maharashtra).
23. Maulana Abdul Hasan Ali, Shaikhul Hadith, Darul Uloom Islamia Arabiah, Bharuch,
Gujrat.
24. Maulana Ateeque Ahmad Bastawi. Ustad, Darul Uloom, Nadwatul Ulama, Lucknow.
25. Maulana Anisur Rahman Qasmi. Assistant Qadhi Shariat Emarat-e-Shariah, Phulwari
Sharif, Patna.
26. Maulana Saud Alam Qasmi, Nazim Diniyat, Aligarh Muslim University, Aligarh.
27. Maulana Dr. Fazlur Rahman Ginnori. Prof. Department of Theology, AMU18, Aligarh.
28. Maulana Naseem Ahmad Qasmi, Gole Bazar, Sarha, Nepal.
29. Maulana Azizur Rahman Fatehpuri, Mufti, Darul Uloom Imdadia, Mumbai.
30. Maulana Fuzailur Rahman Hilal Usmani, Mufti, Jamia Darussalam, Maler Kotla (Punjab).
31. Maulana Naseem Ahmad Qasmi Muzaffarpuri, Behs-o-Nazar, Phulwari Sharif, Patna.
17

Footnote by Ustdh, Ahmed Fazel Ebrahim: Almost all the issues discussed under organ
transplantation have already been answered by Mufti Shafi R.A., the late Grand Mufti of Pakistan in
his urdu work Insaan ke Ahdaa ke pehwandkaari. Although this seminar reaches the same
conclusions, the endorsement of 35 scholars of the Shariah (Ulama, Muftis and Shuyukh of Hadith)
strengthens and supports the answers. In fact, this number of prominent Ulam from all over the
India-Pakistan sub-continent creates a form of Ijma (Islamic Legal consensus) of the Ulam of that
area on issues related to organ transplantation.
The Arab Ulama have also allowed organ transplantation. [Refer to the Al-Azhar, (Cairo, Egypt)
fatwa in addendum 1]. Some of their Ulama prohibited it. However, their fatwa on this issue needs
to be attached to this view to express the Ijm of the scholars of the Islamic world in relation to
given issues relative to organ transplantation. Furthermore, I view it essential that the compiler of
these resolutions and the translator should have given the mazhab of each scholar on this panel.

18

Footnote by Ustdh, Ahmed Fazel Ebrahim: AMU might mean Aligarh Muslim University.

32. Maulana Muhammad Zaid Saheb, Ustad and Mufti, Jamia Arabiah, Hathora, Banda, U.P.
33. Maulana Muhammad Junaid Alam Nadvi Qasmi, Mufti Darul Iftaa, Amarat-e-Shariah,
Phulwari Sharif, Patna.
34. Maulana Habibullah Qasmi, Mufti and Ustad-e-Hadith, Madrasa Riazul Uloom, Goreni,
Jaunpur, U.P.
35. Maulana Mujahidul Islam Qasmi, Qadhi-e-Shariah, Bihar & Orissa, Phulwari Sharif,
Patna and Secretary General Islamic Fiqh Academy (India).

Issues Concerning Interest (Riba)


Certain issues concerning interest were discussed in the Second Fiqh Seminar.
Consensus on the following points emerged after deliberations in the light of Shariah,
rules of Islamic Jurisprudence, precedents and the demands of prevailing conditions.
(i) Riba (interest) is totally haram (prohibited), both giving and taking of it.19
(ii) Paying of interest is not forbidden for itself20 but is so because it opens the doors
for the taking of interest. Hence, under certain constrained circumstances the paying
19

Footnote by Ustdh, Ahmed Fazel Ebrahim: This matter is concluded in the Quran and Hadith and
requires no deliberation.

20

Footnote by Ustdh, Ahmed Fazel Ebrahim: Allah had made Riba harm in the Quran. This
prohibition was general. It entails the prohibition of giving and taking of interest at an equivalent
level. The ahdith further emphasize the prohibition. Thus, giving interest is neither prohibited since
it allows the taking of interest, nor is the taking of taking of interest prohibited because it will create
an environment of giving interest. It is obvious that interest can only be taken if it is given. Sophistic
reasoning or a false argument would lead us to say that giving bribes is prohibited since it allows the
taking of bribes. This is because the taking of bribes can only be done through the giving of bribes.
Also, the taking of interest can only be done through the giving of interest. The mutual and nonindependent nature of giving and taking in both these examples is mutual. It is thus that we also find
clear ahdith to prohibit giving interest just as we find clear ahdith that prohibit taking interest. For
the panel to thus conclude on the basis of a false argument which states that the giving of interest is
not an actual prohibition but is prohibited because of the causative effect it has, leads it to thus
incorrectly deduce that the giving of interest is therefore permissible under specific but non-defined
circumstances. Although the causative effect of giving interest is nothing else but the taking of
interest, the reverse also holds true since the demand for interest also initiates the market for the
payment of interest. Considering the paying of interest to be purely a causative factor, and not an
inherently prohibited act would deny the implications of the ahdith which prohibit the giving of
interest since it would mean, according to these Ulam that the ahdith imply that the giving of
interest is allowed in specific conditions. The latter is not found anywhere in the ahdith.
Every interest transaction has a giver and a taker. This reciprocal nature is inseparable, because
interest cannot be taken without a giver of interest. Also, every giver of interest is necessarily
conferring it to someone or some entity that takes it. Also, an interest contract is generally always a
mutual contract that comes into existence through mutual agreement. Thus, a person financing his
home through interest cannot conclude the contract except with the lending institutions consent.
Neither can the bank or lender have a contract to charge interest unless the borrower consents to
such a contract.
This case is analogous, in one sense, to the prohibition of drinking beer. The production of beer is
not prohibited purely because it will be consumed. Even if the beer is not to be consumed, the
manufacture of it remains prohibited. The manufacturing of beer can be through a single person or
entity but remains prohibited even if no sales are incurred. Thus, although the production of

beer/wine is causative to consumption, yet the absence of consumption does not eliminate the
prohibition of producing beer/wine.
On the other hand, interest due to one person demands interest to be paid from another person.
We cannot state that only taking interest is prohibited since the offer to pay interest can emanate
from the buyer, borrower or person requiring capital. Providers of capital demand interest as a return
while those in need of such capital willingly offer to pay interest as a consideration since they either
expect to generate more money on the loan than the interest they have to repay, or because other
urgent capital needs demand that they become willing to pay the interest.
The extent of interest money created, in any single contract, when it is received by the taker, is the
very same extent of interest money that comes into being due to the interest payer.
Banks exist in the market and are known to take interest. The fact that banks take interest on money
it lends is also a factor for people to borrow on such a basis and to re-pay their loans with interest.
Thus, the taking of interest is also a factor for the giving of interest. Likewise, the taking of bribes is
also the cause of giving bribes. The reality on the ground is that people are sometimes compelled and
constrained to pay interest. The allowance that some Ulama may grant under specific circumstances
is not derived because the paying of interest is not inherently forbidden. Rather, it is due to the
demanding Dharoorah (necessity) in a given situation.
In terms of usul, we sometimes search for an Illah (reason for the order or prohibition). Where the
illah is manss alaihi (provided explicitly) by the Quran and ahadith, the absence of the illah in a
specific case, may allow a permission to engage in an act. However, where the illah is not manss
alaihi (provided explicitly) by the Quran and ahadith, then it is possible that the assumed illah,
which is deduced by any jurist or panel of jurists, is wrong. It may also be possible that the assumed
illah, which is deduced by any jurist or panel of jurists, has its justification to some degree, but is
not the only illah in relation to the ruling. There could be other ilal (plural of illah) or stronger
ilal (plural of illah).
Refer to the following in the 7th Seminar of the same Islamic Fiqh Academy.
SEVENTH FIQH SEMINAR BHARUCH INDIA
Dec. 30, 1994 Jan. 2, 1995
7. Determination about something whether it has the status of need or necessity under prevailing
circumstances requires deep insight, careful screening and detailed contemplation. Therefore it is the
duty of jurists and theologians in every age to determine the category of need and necessity which
can commente the orders, keeping in view the condition of that age. It is also very necessary that
such delicate and important decisions should not be taken by individual efforts but by a body of
authentic and prominent jurists and theologians so that the path of detestation may not be opened in
the name of the prevention of harm to the Ummah.
Note by Ustaaz, Ahmed Fazel Ebrahim: He means: Therefore it is the duty of jurists and theologians
in every era to determine the categories of need and religious allowance due to absolute
necessity since the latter principle of Dharoorah could, in specific cases, allow exemption during
the period of such necessity from the categorical orders of the Quran and Sunnah. The jurists must
keep in view the conditions of that era in relation to the location of application as well as in relation
to other associated factors when they evaluate whether the principle of religious allowance due to
absolute necessity will apply.
However, on p132 of Al-Ashbh wan-Nair of Allmah Ibn Nujaim, Ash-Shaikh Zain-ud-Dn bin
Ebrahim bin Muhammad (death 970 A.H.) [Printed by Dar-ul-Kutub-Ilmiyyah, Lebanon], the
following is stated:
The Fourteenth rule: That which is Harm to take is also Harm to give

of interest may become permissible. The circumstances under which it may become
permissible for the needy person will depend on individual cases for the determination
of which the person concerned should consult a competent Mufti and abide by his
guidance.
(iii) The Government of India advances loans on a subsidy basis and interest is also
charged on the loan amount. In such cases, if the total amount of interest charged does
not exceed the amount of subsidy or falls short of it, then the amount charged as
interest will not be interest according to Shariah (Islamic Law).21
Like Rib, prostitution fees, payment to astrologers, bribery, fees given to women mourners and the
Zmir (a piper or someone palying on any wooden or other musical instrument) except in some
issues: bribery can be given if you fear loss of your life or wealth or to acquire your rights or have
your matters attended before a government authority (Sultn or Amr) except for a judge since it is
Harm for him to take and give as we have elucidated in the Sharh on the Kanz-ud-Daqiq in the
section on Qadh and in relation to the freeing of a prisoner and giving something to someone whose
vituperation is feared. Likewise, if an executor fears that a Ghsib (usurper) would get control over
wealth, he can give him something to remove him (from control) as mentioned in the Khulsah.
From the above, you could say that the Ahnf would, under extreme circumstances having no
alternatives, allow the payment of interest to fulfil valid needs and necessities.
I do not know if the allowance in the above is given, despite the act of giving a bribe is Harm, on
the basis that Allah allows the eating of Harm to protect life, so likewise, under extreme cases, the
giving of a bride is also allowed to protect life since the ultimate objective is the same. However, the
allowance in this case, is also extended to giving a bribe for other reasons in order to protect the
financial and material interests. I would not regard the giving of a bribe to any government authority
as valid when it leads to the violation of the rights of others, as well as when others are equally or
more entitled to something. Thus, the allowance granted here is relative to protecting any existing
material interests where the latter do not violate the rules of the state, and nor does it form the means
of achieving something that Islam does not allow you to acquire entitlement.
We learn from the above that sometimes a rule that is created through ijtihaad in order to infer other
rulings, does not become a rule of law that is absolutely cast in stone since there are cases and
circumstances that would justify its violation.
In these matters the safest approach is to strengthen the levels of your Imn and absolutely abstain
from the giving of a bribe.
Refer to addendum 11 which relates to a fatwa from Al-Azhar on the giving of bribes.
8. If some special condition of a forbidden thing has been exempted from prohibition either explicitly
or through guidance, in that case, it no longer remains prohibited and it is necessary to take
advantage of this exemption. Apart from this where exemption or facility is proved through the
contemplation/collective deliberation of the jurists or by some categorical order, it is only for the
removal of sin.
Note by Ustdh, Ahmed Fazel Ebrahim: This means - If some special exemption related to a
forbidden thing has been mentioned, either explicitly or through inference and analysis of the sources
of the Sharah, in that case, the forbidden thing no longer remains prohibited and it is necessary to
take advantage of this exemption. Although eating pig is prohibited, Allah allows eating pig if there
is absolutely no other form of Hall food. Thus, in order to sustain life, a person having access to
only pork would have to eat it to an extent that allows him to protect his life or end his dire hunger.
21

Footnote by Ustdh, Ahmed Fazel Ebrahim: The loans may be related to government assistance
schemes on the purchase of homes or real estate. It might relate to something else. Nevertheless, any
interest charged on the loan that the government gives, remains to be interest immaterial whether
such interest is more or less than the government subsidy. The subsidy is a government or state grant

(iv) In cases where the Government compulsorily acquires land (or any other
property) under the Land Acquisition Act and fixes its market value according to its
own formula; and the land owner, being dissatisfied with the price so fixed, gets the
dispute referred to courts of law for adjudication and the court fixes a higher price and
orders the Government to pay the same along with interest at a fixed rate on the
difference, this Seminar is of the view that this additional amount paid under the name
of interest is not, in fact, interest but should be treated as part of the price of the
property in question, receiving and using of which is permissible.22
(v) In cases where the Government fails to pay the just dues of its employees at proper
time and the employee ultimately approaches a court of law for redress and the court,
while fixing the quantum of the amount payable to the employee, further orders that
interest at a certain rate be also paid over and above the due amount, this Seminar is
of the view that the additional amount ordered to be so paid by way of interest is not,
in fact, interest and such a person can take and use the amount.23
to given individuals with particular circumstances. It is a form of gift. Thus, the value of the subsidy
cannot be considered to be paid for with any interest given on the loans. This will imply the
offsetting of interest payments to a specific extent of the subsidy. The state is a separate entity and
we have no clarity on the accounting system used and implemented in regard to their financial or
public schemes. The subsidy may be from a specific budget allocation for poverty alleviation or aid
to its citizens while the loan accounts of the state represent a separate asset in its financial statements.
This is similar to borrowing money (e.g. 20 000) from a man who grants you a gift (of 5 000) but
charges you 7000 in interest for the loan. You cannot thus say that you are only paying 2000 in
interest. Although, in accounting terms, you are effectively only paying him 2000 more than the loan
you took. Yet in reality, you are paying 7000 Harm interest while the 5000 was a Hall gift.
22

Footnote by Ustdh, Ahmed Fazel Ebrahim: I would only consider the interest on the difference that
is due to be part of a persons rightful assets in the case where the new and higher price fixed by the
court together with the interest due on the difference is equal or less in value than the market value of
the property acquired by the State at the instance of acquisition. However, this leads to the continued
problem in all other matters of injustice, for the entitled beneficiary to disregard a legal courts
evaluation and consider any interest to be received to be part of his rightful asset. Thus, the safest
approach in these matters is not to consider the interest portion to be received as part of your rightful
asset.
Sometimes, a State, because of its limited financial resources, may be restricted in the amount that it
pays to claim private property. The inability to pay is not a justification for an unfair evaluation. The
need for nationalization or State purchase could also be due to a need for a public amenity or state
facility like a dam or other need. In some cases, the subsequent use of the property does not justify a
higher payment by the state. It is judicious for the state to provide fair payment and also to be
indebted to the property owners to the extent that it cannot immediately pay. In some cases, one
property owner feels injustice while another is contented at the States initial price. This would vary
in relation to the extent of development on the land, its use and any adjacent facilities. Since many of
these issues may be subjective, the State pays an average price in relation to the size of land or other
variables.

23

Footnote by Ustdh, Ahmed Fazel Ebrahim: I differ with this view. It would be justified for the
plaintiff to seek payment in relation to damages and cost entailed to procure his dues, but not
permissible to exact an interest on unpaid debt. If this was allowed, then all other creditors would
likewise be entitled to take interest payments from debtors who defaulted in payment and were
ordered by the court to settle such payments with interest. Accepting the view of the members of this
Seminar who approved this ruling implies rejection of one of the forms of Rib which entails
increasing the debt in lieu of a default in payment. This type of juridical consensus by a group of
Ulam is reflective of an incorrect ijm (juridical consensus) that occurs in many generations after
the great era of the Tbin.

(vi) As regards the question of interest-bearing development loans advanced by


nationalised banks, in view of the peculiar context of India, this Seminar recommends
to the Islamic Fiqh Academy to constitute a committee of religious scholars and other
experts and assign to it the task of examining the issue in all its dimensions and give
its findings on the issue.
Bank Interest
Participants of the Seminar were unanimously of the opinion that the interest
paid by the banks undoubtedly comes under Riba. Some questions came up during the
Seminar as to whether the amount should be withdrawn or left in the bank?
Furthermore, in case it is withdrawn from the bank, how should the bank-paid interest
be spent?
It was agreed that the accruing interest should not be left with the bank.
Instead it should be withdrawn to be used under the following heads:
(i) The interest paid by the banks may be spent on the poor and needy without
expecting any recompense from Allah.24

24

Footnote by Ustdh, Ahmed Fazel Ebrahim: Since the Sharah had ruled that taking of interest is
Harm upon Muslims, this rule applies to Muslims not only when intending to take interest from
Muslims but also when Muslims intend to take interest from non-Muslims.
Non-Muslim financial entities earn interest from its clients and other investments in order to pay
interest to depositors and those who have invested funds with their institutions. We also recognize
that returning interest received from these institutions to the very same source from where it was
acquired is futile since these institutions do not, in-turn, return the interest to sources from where
they acquired it. Rather, such financial institutions would either use the interest for internal benefit or
distribute it to other charities many or all of which are non-Muslim and, sometimes, are also
engaged in missionary work against the teachings of Islam.
On the contrary, the other fatwa given in Imdd-ul -Fatw which relates to returning interest from
where it was taken is 100% in compliance to the Sharah. Thus, where interest is then to be returned
to the source from which it was taken, we as Muslims are not responsible regarding their subsequent
use and disbursement of interest returned to them by the clients. This is a great test on the Imn of
Muslims!
In the case of financial institutions, the owners of the interest, in the legal sense of the non-Islamic
law, are the shareholders of the institution until the point of their distribution of such interest when
ownership is legally transferred to depositors and investors who deposit or invest with such
institutions.
In the case of shares, the issue is different; the actual shareholder is a recipient of fractions of interest
earned by companies. In the latter case, the shareholder actually earns interest directly. In the former
case, his deposit of funds on an interest basis entitles the banking and financial institutions to reinvest and lend on interest and non-interest basis.
Thus, in the case of not knowing who the actual owners of interest taken, it is correct to distribute the
interest to the poor. However, the Na (text) of the Qurn makes interest Harm for all Muslims rich and poor. It is therefore that interest is not to be discharged to poor Muslims.

(ii) The above mentioned amount may not be spent on any mosque25 and its related
requirements in any way.
(iii) Majority of the participants held the opinion that the above mentioned interest
may be used for social welfare activities as well as on paying obligatory alms.
However, some Ulam opined to limit its use for the poor and needy persons only.26
Commercial Interest and the Islamic Shariah
After taking into account all the relevant facts and after comprehensive
discussions, the Seminar arrived at the following conclusion regarding consumptional
and productive loans and reasonable and unreasonable rates of interest.
The Sharah has categorically prohibited interest on all types of loans,
consumptional as well as productive. It is sheer misunderstanding that the Shariah
prohibits interest only against consumptional loans and allows it on productive loans.
It is entirely incorrect that productive loans did not exist during the period of
revelation of the Quran. It has been established historically that the Arabs of the
Jahiliah period as well as the nations who had commercial relations with pre-Islam
Arabs had well established practices of receiving and paying extra on productive
loans. Moreover, even if the practice of obtaining productive loans and extra payment
thereupon is not to be found during the period of revelation of the Quran, it could not
be made to mean that the Sharah permitted interest on productive loans because
several independent proofs of the prohibition of interest on such loans do exists. The
Quran, the Sunnah, the Ijm, the Qiys and the precedents of unbroken chain of
practice of the Ummah, each one of them, declares in unequivocal terms that the
motives behind receiving or advancing a loan is entirely irrelevant to the prohibition
of interest.
Further, the prohibition is in no way affected positively or negatively, by the
rate of interest being reasonable or unreasonable (moderate or excessive). The Shariah
does never admit that interest may be permissible if the rate of interest is reasonably
low and prohibits only when it is unreasonable high. The Shariah refuses to make any
such distinction. Both are equally prohibited according to Islamic Law.
The only situation, and as a lesser evil, where I would consider it allowable for poor Muslims to use
interest, as a lesser evil, is in the case where these very poor Muslims are obliged to pay interestrelated debt on necessities. Thus, interest given to them can only be possibly used to pay or off-set
interest that they have to pay towards mortgage and other interest payments that they have to make.
This allowance cannot be extended to the rich since they do not have the dire need to purchase on an
interest basis. The rich may argue that financial rules in non-Muslim countries oblige them to make
purchases on interest. This is true for tax purposes but their purchases of luxury goods, nonessentials and other essentials on an interest basis is purely investment based and not on dire
necessity for subsistence.
25

Footnote by Ustdh, Ahmed Fazel Ebrahim: It can neither be spent on any assets of an Islamic
Institution e.g. Madrasah property or a building used to receive rental, spares and repairs to
equipment and motor vehicles of an Islamic Institution or Waqf Trust. It cannot even be used to
pay the salaries of non-Muslim staff who work in any Islamic organization.

26

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to previous notes which entail details in this
regard.

Dr-ul-Islam, Dr-ul-Harb27 and determining the status of other countries


according to the Sharah
The issue of permissibility of Uqd-e-fsidah (Islamically invalid deals), the absence
of the condition of any property being Protected property (Amwl-e-masm), necessary for
the applicability of the doctrine of interest, and hence interest becoming permissible in a Drul-Harb28; whether India is Dr-ul-Harb or not; whether the republic of India, if treated as
Dr-ul-Kufr, falls in the category of those countries in which properties do not bear the
character of protected property (Amwl-e-masm), these and other related issues came
under consideration in the Seminar from various angles. Although the general trend of
thought in the Seminar was that interest-bearing deals cannot be held as Islamically
permissible in a country like India, still in view of the divergent opinions expressed through
papers presented at the Seminar and in the discussions there at, the Seminar called upon the
Islamic Fiqh Academy to set up a committee consisting of Ulama and Jurists, and those wellversed in contemporary political science, constitutional law and laws relating to International
relations. This Committee should be asked to determine the nature, character and categories
of different prevailing forms of government in the light of constitutional guidelines provided
Footnote by Ustdh, Ahmed Fazel Ebrahim: See Addendum 2

27

Footnote by Ustdh, Ahmed Fazel Ebrahim : Refer to the following from Al-Azhar

28

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by Islam and Islamic Law of International Relations and how each one of these should be
treated Islamically.
The Committee should also look into the issue of mutual relationship between any
two countries and accordingly their position vis--vis one another, and the nature of legal
relationship in the light of the Shariah of Muslims vis--vis the government of the country of
which they are citizens and vis--vis the other citizens of the country.
The committee should also consider if there can develop a situation when interestbearing and other Islamically invalid deals (Uqood-e-fasidah) between Muslims and nonMuslims could become permissible.
Project for Interest-Free Banking
The Second Fiqh Seminar, while considering the conclusions arrived at the Seminar
was of the view that setting up of interest-free banks and establishing such societies at local
levels which help in such interest-free investment as are within the parameter of Shariah can
be beneficial for Muslims. However, for this purpose it is necessary to provide such working
models which are not in conflict with Shariah. The Seminar takes note of the fact that some
such institutions are already functioning at different places but there is no coordination
between them nor is there uniformity in their method of working. Hence, this Seminar feels it
desirable that a comprehensive project report on feasibility and working of an interest-free
bank be prepared keeping in view the contemporary banking principles and the injunctions of
Shariah, so that not only Muslims are rescued from the curse of interest and be the source of
economic strength for themselves but may also be a boon and blessing for other backward and
weaker sections of humanity as is the wont of the Muslim community being the follower of
Prophet Muhammad (Sallallahu Alaihi wa Sallam), the Benefactor of mankind.
For this purpose, this Seminar calls upon the Islamic Fiqh Academy to constitute a
Committee consisting of Ulama, Jurists and other experts in the field of banking, economics
and commerce, and assign to it the task of preparing a project report on the subject.

THIRD FIQH SEMINAR BANGALORE


JUNE 08-11, 1990
The Third Fiqh Seminar was held between June 8-11, 1990 at Darul Uloom Sabeelur
Rashad, Bangalore. Maulana Rafi Usmani of Pakistan and Dr. Mehroos Al-Mudarris of Iraq
were the guest scholars.
Legal aspects of Islamic Banking and practical difficulties in its way were reviewed
and the Juristic and legal aspects of the subject were discussed. Papers on the subject of sale
and purchase of rights were presented and debated. The discussion ended with the detailed
scholarly paper by Dr. Mehroos Al-Mudarris.
The proposals which were accepted in the Seminar are as follows:

Islamic Banking
Regarding Islamic Banking, it was decided that it should be based on Mudharabah29,
Mushrakah30, Ijrah31 and Murbahah32 and should necessarily be kept clean of Riba
29

Provision of investment capital.

(interest). To chalk out its practical aspects, a committee of economic experts and Islamic
scholars was formed consisting of (1) Dr. Rahmatullah Ansari, (2) Dr. Abdul Haseeb, (3) Dr.
K.G. Munshi, (4) Dr. Fazlur Rahman Faridi, (5) Dr. Nejatullah Siddiqi (Saudi Arabia), (6) Dr.
Mohammad Manzoor Alam, (7) Dr. Mohammad Anwar (Malaysia), (8) Janab Abdul Wahab
Dalvi, (9) Mufti Saeed Ahmed Planpuri, (10) Maulana Khalid Saifullah Rahmani, (11)
Maulana Ateeque Ahmad Bastavi, and (12) Qadhi Mujahidul Islam Qasmi.

Suggestions to Islamic Scholars


The Seminar suggested to the Islamic schools to hold inter-madrasah debates on
contemporary issues in order to stimulate juristic interest among the students. They should
also arrange to impart education at least on the elementaries of modern sciences like
economics and other new sciences which deal with various aspects of human life.
The Seminar also desires the trustees of the Islamic schools to arrange lectures by
experts of Islamic jurisprudence for their students to benefit them with the knowledge about
the fundamentals of Islamic laws, their basic ideology and their capability of giving guidance
to human beings in every age. The Academy offers to give them full co-operation in this
regard.
1. Islamic Banking - Guidelines
The following guiding principles will have to be kept in mind while preparing the
scheme for an Islamic banking system.
1. Interest-bearing deals and transactions of all kinds involving interest are strictly prohibited
in Islam.
2. Islam holds justice to all the parties to economic and commercial transactions as prime
condition which means full justice to both the investor and the entrepreneur. The investor
should have a share in profit and must also fully bear the loss, if any, while the entrepreneur
should have a share in profit and in case of loss should stand deprived of any return for his
labour
3. Money should be treated as a means for procuring the necessities and conveniences of life
and not as an end in itself.
4. Capital should be regarded as a trust from Allah to be utilized to meet the real needs of men
and to improve their economic potential, unlike the current manner of utilization by the
investors and the Banks which is aimed simply at multiplying the wealth.
5. Distribution of wealth should be in a manner so as to improve the economic condition of
the weak and backward classes of people and to minimize inequitability and disparity in its
distribution. Keeping this in view, the Islamic Banks, while providing the capital, should give
precedence to necessities over luxuries and keep the ratio of their profit at a level conducive
to give encouragement to small entrepreneurs.

30

Partnership.

31

Leasing of property, vehicles and other equipment.

32

Sale of commodities, property, vehicles and other equipment through adding specific or variable
percentages profit on the cost price.

6. There should be a check on all such means of acquisition of wealth which are commonly
practised these days but are outstandingly dishonest and deceitful.
7. Besides adhering to the above guidelines and while keeping in mind the general objectives
of the Islamic socio-economic system, care should be taken to retain its moral spirit and the
values of honesty and truthfulness that go with it, so that it may not be a soulless mechanical
exercise but should effectively replace the contemporary system which is based on hypocrisy,
exploitation and selfishness, with one founded on compassion, good-will and fraternal
cooperation.
With this end in view, this Seminar decides to set up a Committee comprising Islamic
scholars and experts in the science of economics to formulate a scheme for a new fiscal
system embodying the principles of Shariah and the guidelines mentioned above which may,
keeping in view the conditions prevailing in India and the problems facing Muslims, be in
consonance with the aspirations of Muslims and the values they cherish and may also provide
solution to their real economic problems.
2. Murabaha or Mark-up Pricing
The Seminar also considered at length the issue of Murabaha (Mark-up Pricing) and
after due deliberations arrived at the following conclusions:
1. The term Murabaha has a definite connotation with Muslim jurists.33
2. Only those forms of Murabaha have been considered by the Seminar which are currently in
vogue among Islamic Banks.
3. It is an established principle of Islamic Jurisprudence that the object is central to all
transactions and not the nomenclature they go under.34 Hence, the deals made under the name
of Murabaha will have to be scrutinized in accordance with their nature, not resting content
with just the name those are made under.
4. Besides the commonly known conditions covering Murabaha, all deals entered into by the
Islamic banks as Murabaha, will be Islamically permissible only when:
(a) The quotation forms issued by the banks give full description and quality of the goods
offered for sale and in which other necessary particulars have been fully and clearly
mentioned so as to eliminate the possibility of disputes between the contracting parties
because of lack of full information or ambiguity. Moreover, the profit to accrue to the bank
(Sale-price) over its purchase price or cost price along with the terms of payment i.e., the
period of payment and quantum of instalments should be clearly mentioned.
(b) It will not be proper to quote, at the time of making the deal, two separate sale-prices, one
for down payment sale and the other for credit sale, or to link the sale price with the length of
payment period at the time of making the deal. The Bank should show the sample of
commodity offered for sale and should clearly inform the buyer about the period and the
number of instalments fixed for the payment and the quantum of profit to the Bank which will
be the purchase price for the buyer from the Bank.
33

Footnote by Ustdh, Ahmed Fazel Ebrahim: For the purpose of Islamic Banking as well as for
Muslims to commercially apply the Murabaha contract, it is essential that Murbaha is defined in a
format that amalgamates the opinions of our jurists as well as in a manner that defines it in terms of
each specific jurist or madhhab.

34

Footnote by Ustdh, Ahmed Fazel Ebrahim: This refers to Al-ibratu lil maqsid wa l lil alfz

Interest-free Loan Societies


The functioning of interest-free loan societies and problems relating to the same were
considered in the Seminar. The conclusions arrived at after due deliberations are:1. Such institutions are welfare institutions in their nature which are based on compassion,
righteousness, virtue and fellow-feeling.
2. To collect any amount, by whatever means, from the debtor over and above the actual loan
amount is not permitted in Islam as all amounts so collected fall within the category of
interest. Hence to collect any excess amount, be it for the benefit of ones own self, or the
loaning institution or for the purpose of financing any other charities or welfare institution, is
Islamically not at all permissible. Similarly it s also haram (prohibited) to put the amounts
belonging to such institutions as fixed deposits in banks and utilize the interest accruing
thereon.
As to the finances necessary for the operational expenses of such institutions, this
Seminar suggests the following measures:
(a) The charity-minded well-off and affluent persons should bear all the operational expenses
treating it as an act of service for their community and to seek the pleasure of Allah. If such
institutions succeed in bringing it home to the people that they operate strictly within the
bounds of Shariah under the guidance of Ulama and by offering financial assistance to their
brethren to save them from the curse of interest, it is strongly hoped that the affluent Muslims
will come forward to shoulder the burden of the operational costs of such institutions and
even to provide finances for the expansion of their activities.
(b) This Seminar is of the view that such institutions should try to invest a part of the capital
in their hands in productive ventures to earn some Jaiz (Islamically permissible) income, at
least to the extent of being able to meet the operational costs of the institutions.
(c) Many of the participant Ulama are of the view that service charges of operational costs,
though indispensable and even if at the level of bare actual, cannot be charged to the
creditors35. Some other Ulama hold that although, in essence, this may be Islamically
permissible, it should necessarily be held as impermissible36 as inherent in it is the danger of
the door of interest getting opened.
Some other participating Ulama put forth the view that in as much as setting up of
such welfare institutions fulfil a great need of the community and in case required co35

36

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the translator erred. It refers to debtors i.e.
those who borrow money on a interest-free basis from an Organization that provides interest-free
loans to those Muslims who are in need.
Footnote by Ustdh, Ahmed Fazel Ebrahim: This would have been better expressed as Some other
Ulam hold that although, in essence, this may be Islamically permissible, it should necessarily not
be held as allowed 36 as the inherent nature of the Islamic loan contract is void of such a charge, and
to thus add a service charge places the actual Islamic contract of loan in danger due to the possibility
of creating a form of allowance for charging interest and opening the door of interest. People may be
willing to borrow knowing that a minimum charge is levied, although in reality, the charge is for the
service and not related to the loan. Furthermore, the institution might just be eventually charging a
service which exceeds the rates of interest in commercial banks because a) those who borrow do not
repay or do not repay on time, b) the cost of litigation and retrieval of loans given becomes high, c)
very few or non of the members of the society are willing to continuously fund the operations of the
institution d) earnings from other Hall avenues are diminished.

operation from the well-to-do of the community is not forthcoming, nor it be possible to
generate capital for the operational costs through Islamically lawful productive investments,
in that case the actual cost necessary to meet the operational cost may be charged to the
debtors37 because the amount thus collected goes neither to the persons collecting it nor forms
a source of income for the institution per se.38
However, even those holding this view are firmly of the opinion that as charging any
amount to the debtor over and above the loan amount is quite against the Islamic spirit of
loaning and since it is to be permitted only because of its unavoidability, extreme care should
be taken in computing the operational costs to be charged to the debtors.
In case the operational costs, estimated with great caution and collected from the
debtors, are found, at the end of the accounting period, to be in excess of the actual
expenditure incurred, it would be incumbent on the institution, according to Shariah, to return
the balance to the debtors from whom it had been collected, on pro rata basis.39

37

Footnote by Ustdh, Ahmed Fazel: i.e. those who borrow from the institute providing interest-free
finance.

38

Footnote by Ustdh, Ahmed Fazel: These Ulam are thus restricting the operational costs towards
rental of the institution, water & lights, equipment and office furniture and stationary. They are
excluding salaries to staff.
Their argument is logically flawed since if it is possible to charge the borrowing persons for the other
costs, the costs related to salaries of staff administering such an institution is also a justified cost that
must be paid.
It is also financially impossible to exactly discern the extent of loans that will be made in any given
month, while the operational costs could be fairly estimated. Also, neither would all the borrowers
repay the loan within a month. We neither have conclusively knowledge relating to each borrowers
capacity to discharge the debt within/on the due date. Sometimes, the institution would itself have to
engage legal services to ensure payment from specific borrowers. Thus, actual expenses in one
month or one financial period can differ from the expenses of another month or another financial
period. It is therefore financially not feasible and to run such a fund based on the expenses of a given
month. It would neither be fair to the rest of the borrowers who would be, in such a case, be tasked to
meet the costs related to defaulting debtors.
Furthermore, the generating of any income beyond the actual operational costs on the loans provided
would lead to a financial benefit to the lending persons or institute, it would thus become Harm
because of the ahdith relating to Every loan which brings benefit, is a form from the various forms
of Riba. It may be possible that the lenders agree that all additional profit is granted as a vloluntary
contribution towards the operational costs of the institution.
The above text unfortunately does not specify which Ulam proposed the above given view.
However, it forms an example of a view from Ulam who fail to see the illogical perspectives of
their proposal in relation to the real accounting and economic framework of the proposal. It is thus
absolutely essential for our jurists of Islamic law to also use the services, expertise and experience of
Muslim accountants and economists when dealing with the application of Islamic commercial law.
Reading university level textbooks in the field of accounting and economics is helpful in this area.

39

Footnote by Ustdh, Ahmed Fazel Ebrahim: Although it is possible, whether to some degree or to a
great extent, to match the operational expenditure of specific months at the end of specified financial
periods, this would be purely on the assumption that the accounting records are done on the basis of
a going or running concern. The latter is absolutely valid in the case of a normal business but
requires mathematical and accounting precision in the case of an entity whose sole function is the
provision of loans. Losses in any period due to default in payment from specific borrowers cannot
be considered as a financial expense that is to be written off against income from other borrowers

Here again, another formula can express the admin costs in terms of a weighted average costs relating
to the number of days the loan was taken.
since that would entail charging other borrowers with the cost and value of loss that is not attributed
to their loan.
Likewise, any non-recovered legal expenses against specific borrowers who defaulted would also not
be a justified expense in relation to other borrowers who have not defaulted in payment. Leaving the
exact cost of the loan to be only finally calculated at the end of a specific term places the borrower
under some level of uncertainty. Any amounts paid by borrowers towards operational costs which
exceed the actual costs must be returned to them.
Alternatively, a clause can in included that states Any amounts paid by borrowers towards
operational costs which exceed the actual costs will be deposited in a specific fund as a voluntary
contribution from the debtors towards the operational costs of the institution. This would then allow
the fund to use any additional amount beyond the actual costs for the continued needs and running of
the institution.
Precise mathematical calculations need to be made in relation to the cost of the loan. In some cases, a
lease agreement can inflate the cost purely because the institution failed to continue till the end of the
lease period. Thus the normal monthly cost has to be actually adjusted to cater for the months in
which the lease had to be legally met. The true adjusted cost of the loans would then be beyond the
financial feasibility of some borrowers. The lease could be related to the property/premises, to a
motor vehicle or to leased equipment e.g. a photocopy or fax machine. Although, in such cases, a fair
charge would be to allocate the normal monthly running lease charge as the amount of monthly
expense for that equipment or premises, while any unfortunate lease expense must be disbursed from
other charitable funds that are voluntary given.
When such a society provides interest-free loans, the following mathematical formula would hold
valid under a normal circumstances.
Total Monthly Expenses of Institute x Amount of clients loan
Total interest-free loans extended for the month
$300 x $50/$3000 = $5
Total monthly Expenses (Salaries + motor vehicle [for period} + fuel + water & lights + rental
[excluding legal costs and losses relating to loans])
Here again, another formula can express the admin costs in terms of a weighted average costs
relating to the number of days the loan was taken.
In fact, where an Islamic Bank provides interest-free loans, it could charge its clients as follows:
Amount of clients loan
x Total interest-free loans extended for the month
Total interest-free loans extended for the month
Total monthly expenses of the Bank
$50/$3000 x $3000/$30 000
0.0166 x 0.1
Here again, the monthly expenses will not entail specific legal or extra-ordinary costs relating to
procuring loans from the clients.
It is also possible that such an institution channels repayable loans made from other Muslims to those
in need. In such a case, the lending institution does not own the funds that were extended as loans to
it. Although this has economic advantages in terms of available capital for extending loans, it would
place the institution at risk against its creditors. This can be avoided if the creditors accept such a risk
and do not hold the institution liable for unforeseen losses.

4. Sale of Rights
After due deliberations on the question of sale and purchase of rights, the Seminar
arrived at the following conclusions:
1. Commodity40 is central to all sale transactions.
2. As to what constitutes commodity has not been specified by the Shariah; it will have to be
determined in accordance with contemporary usages, provided they do not conflict with the
Shariah.41
3. It is not Islamically permissible to obtain consideration for those rights which are not rights
in personem but are meant to save the person claiming the right from some harm e.g., the
right of pre-emption.
4. It is permissible to obtain consideration for such rights as have been so classified by the
Islamic Shariah and have come to have their value in terms of money and obtaining which is
part of usage, and further that they are, in their nature, not meant to save the person from
some harm and are otherwise not in conflict with the general objectives and principles of the
Shariah.
5. For determining the nature of rights which, according to contemporary usage are, subject to
the conditions stated above, fit to be sold and purchased for consideration, reference should be
made to authentic theological institutions and scholars for their verdict.
5. Inter-School Debates
The Seminar requested the management of Arabic Madrasas42 that:1. Inter-School debates43 should be held to promote, among the students, the capability to
correlate the principles of Shariah with modern conditions and to acquaint them with present
40

Footnote by Ustdh, Ahmed Fazel Ebrahim: This implies that any form of tangible goods are valid
for the purpose of sale or purchase provided that the Shariah allows the purchase or sale of such
tangible objects, goods or animals. Thus, selling beer is impermissible since the Shariah has
prohibited its sale and purchase.

41

Footnote by Ustdh, Ahmed Fazel Ebrahim: In the prophetic period, the economy was only based on
tangible goods. Thus, there was no discussion on the concept of intangible forms of ownership. The
right to pre-emption in the case of the sale of property was also actually only considered as a legal
right. It was not regarded as a form of ownership that could be bought or sold. Rather, it was a form
of option that could be exercised or relinquished. Where it was relinquished, it could not be
transferred to the favour of any other person. The jurists of Islamic Law have classed Islamically
prohibited items to be of no monetary value. Since the Shariah, during the early days, did not deal
with intangible forms of ownership, the latter are subject to juridical discourse and debate.

42

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refers to scholars from Drul Ulms (as known in
India, Pakistan & associated Muslim societies) and students of Islamic law from Islamic Universities
(in the Arab & Islamic world). Graduates from Departments of Islamic Studies of secular nonMuslim universities may also participate.

43

Footnote by Ustdh, Ahmed Fazel Ebrahim: Senior students as well as those in the Ift (Issuing
Islamic verdicts) divisions of Islamic institutions are ideal participants to such a debate. Students in
lower classes may participate as observers and could be allowed to ask questions at the end of the
session. However, such juridical debates would only be fruitful if the students are fairly acquainted
with the usul of hadith, tafsr and fiqh. Otherwise, we would be allowing students who are ignorant

problems and also the problems coming for consideration before the Fiqh Seminar and other
contemporary problems. The Islamic Fiqh Academy, on its part, offers to request any of the
prominent theologians to participate and co-operate in such debates, if so desired.
2. This Seminar thinks it also desirable for the Islamic Madrasas to arrange for periodic
lectures by experts on economics and other modern sciences so that the students may be able
to acquire an elementary knowledge of these sciences and are able to correlate them with the
principles of Shariah. The Islamic Fiqh Academy offers its co-operation in this regard.
3. The Seminar thinks it necessary that students and scholars from educational institutions of
modern sciences be invited to workshops and camps to impart to them the basic knowledge of
fundamentals of Islam, the basic principles and history of Islamic laws and their capability to
provide guidance in every age, and of the necessary terminology. The Seminar calls upon the
Islamic Fiqh Academy to take the necessary steps in this regard.

FOURTH FIQH SEMINAR HYDERABAD


(August 9-12, 1991)
The Fourth Islamic Fiqh Seminar was held at and hosted by Madrasa Darul Uloom
Sabeel-us Salaam (Rector Maulana Rizwan al-Qasmi) in the historic city of Hyderabad from
9th to 12th August 1991. Nearly two hundred theologians, jurists and experts in various fields
of learning participated. Islamic luminaries from foreign countries: Justice Mufti Taqi Usmani
(Pakistan), Dr. Anas Zarqa (Saudi Arabia), Dr. Ali Jumma (Professor, Al-Azhar University,
Cairo, Egypt) and Mufti Abdul Rahman of Bangladesh and Advisor of African Islamic Bank)
also graced the occasion and took active part in the deliberations at the Seminar.
The conclusions arrived at in the Seminar are given below:
No. 1: Problems of Insurance in Indian Background
The justification or otherwise of insurance under the prevailing conditions of India
was put for deliberation in the light of the questionnaire issued by the Academy. All kinds of
life, property and various other insurances were discussed at length and a committee was
formed consisting of the following persons to submit its proposals:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.

Maulana Abdullah Asadi (Banda), Covenor


Maulana Khalil-ur Rahman Sajjad Nadvi (Lucknow)
Maulana Syed Nizamuddin (Patna)
Maulana Zubair Ahmad Qasmi (Hyderabad)
Mufti Zafeeruddin Maftahi (Deoband)
Maulana Nizamuddin Rizvi (Mubarakpur)
Maulana Khalil-ur Rehman Azmi (Oomerabad)
Maulana Atiq Ahmad Qasmi (Lucknow)
Mufti Fuzail-ur Rehman Helal Usmani (Punjab)
Maulana Sadar-ul Hasan Nadvi (Aurangabad)
Mufti Habibur Rehman Khairabadi (Deoband)
Maulana Mohammad Nooh Qsmi (Kerala)
Maulana Riazur Rehman Rashadi (Bangalore)

of the analytical process of Islamic law to embark on the task of elucidating and inferring Islamic
law.

14. Maulana Moosa Ibn-e-Ahmad (Kerala)


15. Syed Ameenul Hasan Rizvi (Delhi)
The committee considered all pros and cons of the issue and felt that the policy of
Insurance Companies is not clear whether the loss of life and properties because of communal
riots is covered under the existing laws and regulations of Insurance.44
It was felt that the issue should be further probed and discussed in detail and full
details regarding different schemes be obtained from insurance experts.
This proposal of the committee was accepted in the general session of the Seminar
and a Committee consisting of the following members was constituted to form a final opinion
after considering the issue from every angle in consultation with the experts.
1. Maulana Mujeebullah Nadvi, Azamagarh.
2. Maulana Burhanuddin Sambhali, Lucknow.
3. Maulana Obaidallah Asadi, Banda.
4. Maulana Ateeq Ahmad Bastavi, Lucknow
5. Maulana Mufti Habibur Rehman Khairbadi, Deoband.
6. Maulana Mufti Ahmad Khanpuri, Dabhel.
7. Maulana Abdul Ahmad Azhari, Malegoan.
8. Mufti Manzoor Ahmad Kanpuri, Kanpur
9. Maulana Nizamuddin Ashrafi, Mubarakpur.
10. Maulana Mufti Zafeeruddin Miftahi, Deoband.
11. Mufti Abdul Quddus Roomi, Agra.
12. Maulana Zubair Ahmad Qasmi, Hyderabad.
13. Mufti Junaid Alam Qasmi, Phulwari Sharif.
14. Maulana Khalil-ur Rehman Azmi, Oomerabad.
15. Maulana Khalil-ur Rahman Sajjad Nadvi, Lucknow.
16. Janab Abdus Sattar Yousuf Shaikh, Mumbai.
17. Maulana Mujahidul Islam Qasmi, Patna
No. 2: Islamic Banking
The detailed sixty-page report of the Banking Committee on the issue of Islamic
Banking was presented. The abridgement of this report in Urdu was put up before the
participants of the Seminar by Mr. Abdul Haseeb, former Director, Reserve Bank of India and
Mr. Muhammad Husain Khatkhatey.
It was highlighted in this report that interest-free Islamic Banks cannot be established
in India unless prevailing Banking laws are suitably amended and Banks are permitted to
directly finance the trade and industry.
As an alternative, the report recommended the setting up of Islamic Financial
Institutions and interest-free societies under the Indian Companies Act and Co-operative
Credit Societies Act with adoption of Partnership under certain conditions.
Islamic modes of Business like Muzarabah45, Shirkah46, Murbahah and Ijrah are
recommended to be adopted in this report as also those banking services which are free from
interest and which are called Non-Banking Services.
44

Footnote by Ustdh, Ahmed Fazel Ebrahim: The translator has not clearly expressed the original
textual implication. Unfortunately, the translator and the Islamic Fiqh Academy did not edit the
translators translation so that a more accurate reflection of the original texts could be conveyed in a
clearer manner.

Establishment of a central (federal) institution to control such Islamic Financial


Institutions is also recommended in the report. The central institution will issue certificate of
financial stability and validity of such bodies and take stock of the credibility and
administrative ability and capability of any new financial institution in case it is planned.47 It
will also impart them useful advice and arrange to utilize the surplus capital of one institution
through another in some profitable and permissible business48.
It is also recommended that a Board consisting of prominent theologians and jurists
be formed to guide the Islamic Financial Institutions from time to time in the light of Shariah
in connection with the business methods to be adopted by them.49
45

The Arabic word is better transliterated as Mudhrabah.

46

Partnership

47

Footnote by Ustdh, Ahmed Fazel Ebrahim: In non-Islamic countries, such a Supervisory institution
which would oversee Islamic financial institutions will have to operate under the supervision of other
Central financial authorities or the Reserve Bank. It would be impossible to act as an autonomous
regulatory institution. Even, in contemporary Muslim countries, such an institution would only be
credible and have legal status if it is subject to the financial organs of the State. A supervisory
institution that researches Islamic Banking and Finance is indeed highly necessary and could provide
global support to Islamic Financial institutions.

48

Footnote by Ustdh, Ahmed Fazel Ebrahim:


The need to arrange partnerships and joint financing of large projects could be required in Islamic
countries. In non-Islamic countries, Islamic banks are seldom required to finance such huge
operations like the building of a dam or developing a state road network, etc. Nevertheless, Islamic
Financial Institutions within a country or across national boundaries can directly engage into
discussion between the institutes to finance a project or join in a venture on a partnership basis.
Sometimes, a bank in one state is a subsidiary of a major bank in another state. It is thus possible for
the subsidiary bank to source funds from the Head Bank or another subsidiary of it. An International
Central Islamic Financial Institution like Islamic Development Bank is ideal for certain forms of
project finance. Research into the monetary institutions of the Middle East and the secular nonIslamic world is vital for business development. In fact, Islamic banks can also source funds from
interest-dealing banks on the basis of contracts allowed by Islam.

49

Footnote by Ustdh, Ahmed Fazel Ebrahim:


The disciplines of Islamic finance is also one that is least understood both by the western financial
community and, paradoxically, also by Muslim professionals whose training in finance has been
purely in accordance to non-Islamic models.
In the same manner that no layperson cannot interpret the law from a few legal texts, similarly the
exposition and understanding of Islamic law is not derived from the reading of a few Islamic texts on
the subject. All material written in this area is subject to critical reviews, and interpretations of the
early Islamic jurists govern the format of Islamic contracts. Thus, what one reader finds in a text may
not necessarily be the sound opinion of scholars of Islamic law. It is thus that a left wing extremist
group of contemporary Muslims deny the validity of Islamic Banking since these forms of financial
entities did not exist in the early Islamic era. It is therefore judicious for any professional who is not
conversant with Arabic and the schools of Islamic law to abstain from advocating assumed
interpretations of Islamic law or the formats of its contracts unless these are authoritatively subjected
to critical Islamic evaluation.
Scholars of Islamic law are generally known as Ulam. Not all of them specialize on Islamic finance.
Many of them totally do not engage with finance. However, there are a growing number of Muslim
scholars whose interest in the field has had a remarkable impact in the growth of Islamic finance and
in the development and marketing of Islamic financial products. The services of these scholars is

absolutely essential in order to monitor the formats of all the types of transactions concluded by the
fund managers as well as by other persons who deal with the assets into which Islamic funds are
invested. Thus, in reality, even when an Islamic bank invests in an external fund or property
syndicate, the Islamic compliance of the latter entities is also essential to the greater whole of the
Islamic Bank concerned.
In some sense, their acknowledgment and acceptance of the financial practices of the fund is
essential for Muslim trust and confidence on the Islamic nature of the investment.
Some of these scholars Ulam graduated from Dr-ul-Ulooms (traditional Islamic educational
institutions that provide higher levels of Islamic education). Scholars from this sector sometimes
further their education to become Muftis. A mufti is a scholar who is entitled to issue Islamic
verdicts. However, not all muftis have the same level of education or knowledge in every area of the
law. Thus, it is possible that an lim (Singular of Ulam) Islamic religious scholar is more
conversant with an aspect of the law than a mufti. These scholars, together with having Arabic skills
that is essential to research issues in Islamic commercial law, also deal with the intricate details
relating to the methodologies of interpreting the Quran and the prophetic teachings.
Others, graduate from Muslim and / or non-Muslim secular universities and either have written a
thesis or dissertation on some aspect of Islamic Banking, Finance or Insurance. Each group of
scholars have their unique skills. An amalgamation of the Dr-ul-Uloom type of Islamic
knowledge to contemporary economic, financial and accounting skills is the ideal blend of attributes
for this task. Indeed, much learning has to be continually gained in the various sectors of the
financial world. Some M.A. and PhD. scholars also have a very good and focussed idea to the
concepts that they researched but their knowledge is generally limited to the researched sector.
However, I have also seen a Muslim PhD scholars work (accredited in an American university)
whose definition of interest, in terms of Islam, is a thousand kilometres away form its mark, let alone
use the phrase a miss is as good as a mile. In some cases, conservative scholars failed to
adequately grasp the full economic, accounting and legal implications of the contract.
All Islamic banking institutions employ one or Muslim scholars / jurists of Islamic law to research
issues related to the law and to sanction their transactions. Alternatively, they may also have a panel
of such scholars to oversee the transactions that they undertake. Such panels are normally designated
as Religious Supervisory Boards.
It is my considered opinion that one or more qualified Muslim accountants or C.A.s also be part of
such a board in order to amalgamate the secular accounting procedure to the demands of Islamic
commercial law.
It is also essential to have one or more lawyers who are skilled in commercial law to be part of the
panel so that they could formulate contracts in terms of Islamic law as well as discern when such
contracts violate the statutory or commercial law provisions of the country concerned.
Some of the Islamic verdicts issued by these boards could maybe be procured from the individual
Islamic Banks or Insurance companies. A software company in Egypt, Harf has published many such
verdicts of many different banks on a single CD rom. However, this material is in Arabic. An
English translation of many such verdicts has been done by Sheikh Yusuf Talal de Lorenzo, Islamic
Advisor to the Dow Jones Islamic Index and on the panel of Islamic religious Advisors of Oasis
Asset Management (South Africa). At one stage, the verdicts issued by the R.S.B. (Religious
Supervisory Board) of Al-Baraka Bank (Head Office) was also available on line. The verdicts of the
Islamic Fiqh Academy, Saudi Arabia are also often adopted by these institutions.
What needs to be noted is that many verdicts are issued related to the format of a financial contract
that has specific definitions, or which is in vogue in a specific financial market. The international
differences in the format of these transactions may sometimes imply that one format is allowed while
another is prohibited due to given considerations. Also, depending on the source and nature of the
verdict, other Muslim jurists may either criticize it or support its contents.

Resolved:
1. The Seminar directs this Report to be filed in the record of the Fiqh Academy of India
along with other documents and thanks the committee for submitting such an enlightening
and comprehensive report.50
2. The Seminar resolves that a Board of theologians be formed by the Fiqh Academy of India
to give legal advice and suggestions in the light of Shariah regarding problems and practical
difficulties to be faced by the contemplated Financial Institutions presented before them by
It must also be noted that there are diverse schools of Islamic law. Each adopts, throughout its
legislational procedure, specific theories for the extension and development of the law. Thus, a
juridical religious edict that allows laxity in one such school, may not necessarily be the same in
another school. Also, a ruling relating to a specific contract may be allowed in one legal school but
prohibited in another school for various reasons which relate to the inferential methodology applied
to infer the law. This does not imply that Muslim jurists are now free to selectively adopt a ruling in
terms of need or an exigency. A complex process of juridical reasoning then needs to be employed to
evaluate conflicting opinions on the basis of ascertain the soundness of the arguments in relation to
the greater pool of source material on Islamic primary law. If this be the case in relation to Muslim
jurists, then a fortiori, non-Muslims associated to the field of Islamic products must understand that
this domain is exclusive to specialist jurists of our law.
Islamic verdicts can either be sourced from the net, local and international Islamic organizations
which deal with Islamic verdicts
e.g.
Some sources
Title
Important fiqh
decisions
(this same
work)

Year of
Publicat
ion
1996

Published by or place of
publication

Contents

Islamic Fiqh Academy


(IFA), India
Post Box No. 9746.
161-F, Jogabai, Jamia Nagar
New Delhi -110025
Phone 6821779 Fax: (011)
6926106, 6820318

Verdicts on
medical
issues,
finance,
Islamic
banking,
other Islamic
issues

Bahs-o-Nazr,

Patna, India

Fatawa
(Islamic
Verdicts)
issued at AlAzhar (Cairo,
Egypt)

www.islamic-council.gov.eg or

www.alazhr.org

Verdicts on
all sectors of
Islamic
jurisprudence

Language

Period

English

Perhaps
annually

Most likely
in Urdu
Arabic

Quarterly
Download
file from
the net

Verdicts from the Islamic world would often have to be translated from Arabic or Urdu to English.
Many Islamic scholars / Muslim religious leaders would be enabled to do this.
50

Footnote by Ustdh, Ahmed Fazel Ebrahim: Muslims in all countries that do not have Islamic
Banking must engage with the legal, banking, financial and marketing aspects related to Islamic
Banking. The final proposals that would allow the establishment of an Islamic Bank could be
forwarded to other larger International Islamic Banks so that that may review the possibility and
feasibility of engaging into such a project.

the Banking experts. This Board will also consider the questions raised in this report and
present their solution in the light of Shariah.
3. This Seminar also resolves that a permanent Board consisting of experts on Banking and
Islamic economy be set up to continue the task and prepare a blueprint for financial
institutions which may be able to render such diverse financial services for the benefit of
Indian Muslims as are permissible under Shariah and practicable legally.
4. It was also resolved that the Board of Theologians should include one or two Banking
experts and the Board of Experts should include a couple of theologians.51
FIFTH FIQH SEMINAR AZAMGARH
Oct. 30 Nov 2. 1992
The Fifth Islamic Fiqh Seminar, devoted to the sole issue of Zakat was held at
Azamgarh (U.P.) from 30th October to 2 November, 1992. The Seminar was hosted by the
Jamia Al-Rashad of which Maulana Mujeebullah Nadvi is the Rector. About two hundred
luminaries who included Ulama representing reputed institutions of Islamic learning all over
India and belonging to all schools of thought participated in the Seminar, Dr. Mehroos AlMudarris (Iraq), Dr. Ali Jumma, Professor in the Al-Azhar Univrsity, Cairo (Egypt) and
Maulana Budrul Hasan Qasmi (Kuwait), participated as special invitees.
The issue of insurance of life and property against communal violence, which was left
undecided in the 4th Seminar (at Hyderabad) awaiting report of a committee set up to collect
further necessary information, was also take up in the Seminar and resolved.
The conclusions arrived at in the Seminar are given below:
1. Bare Necessities Exempted from Zakah
An important condition for the obligation of Zakah is that the goods in ones
possession should be in excess to his essential needs and requirements. The following items
fall under this category.
(a) The daily expenditure incurred on self, direct dependents and dependent relatives.
(b) The house in which one resides, clothes, means of transport (vehicle, horse, cart,
tanga52 or any other mode of transport), tools of trade, machinery or any other means
used for earning livelihood.
(c) The necessities of life will be determined according to the standard of living of a
person in conformity with the times and region.
51

Footnote by Ustdh, Ahmed Fazel Ebrahim: I am of the opinion that a database of Islamic Banking
Case Law be prepared. An expert on Banking law would indeed enhance the skills base of a Board
which serves as the Religious Supervisory Board of an Islamic Bank. Such a scholar is also essential
to have within an internal Arbitration & Mediation Board so that commercial disputes related to the
banks operations could, as far as possible, be amicably be resolved within our own fraternity.
The theologians (Ulam and Muftn [Arabic plural of Mufti] ) who are selected must be scholars
who are engaged with research related to Islamic commercial law.

52

Footnote by Ustdh, Ahmed Fazel Ebrahim: A tanga is a horse and cart.

(d) These include the necessities, needs and requirements of life and the daily
expenditure thereon. The total calculations of Zakah shall be of one whole year.
However, the funds or any other goods which are in excess to necessary requirements
and are set aside as reserve for next year will not be deducted53 for computing the
Nisaab54 for determining the obligation of Zakaht.
2. Zakah on Debts
(a) The debts given to others are of two kinds. One which is recoverable and there is
every hope of receiving it. The second is the dead loan55 of which there is no hope of
recovery.
(b) Zakat will not be obligatory on the lender if, inspite of his56 persistent demands
the debtor dilly-dallies to such an extent that the creditor loses all hope of the
realization of the loan. If ever such loan is realized Zakah will be liable on it one year
after its recovery.57
53

Footnote by Ustdh, Ahmed Fazel Ebrahim: The reserve funds allocated for the period following the
day on which your Zakh became due will not be deducted from the assets. In terms of goods that are
excess to immediate requirements, which will not be used for resale, e.g. extra sugar, flour or rice
that may last the family for another few months, has the Shariah specified that Zakh be discharged
on such items since these are required items that would be consumed in the process of time? Perhaps,
some jurists have adopted the opinion that Zakh has to be discharged since these are not immediate
needs. Some of the sahbah, as a norm, provided their families with forward provisions for an entire
year. Even Nabi S.A.W. did this. Was Zakh exacted on such provisions? We need to get evidence
from hadith. Likewise, people keep extra clothing. Sometimes, these clothes are seldom worm or on
rare occasions. Is such clothing beyond need? What is the exact description of goods in the above
fatwa? Women often keep additional cutlery and ceramics for future use or for special occasions. Are
such plates, dishes, etc Zakatable? Would people then have to pay Zakh for art work hanging on the
walls, which is far more expensive then some of the dishes kept for future use or would the artwork
be regarded as used items, when in Shariah terms, it is a non-essentiality?

54

Footnote by Ustdh, Ahmed Fazel Ebrahim: i.e. to ascertain whether your assets exceed the Nisb
(not to compute the actual value of Nisb).

55

In South African accounting terms, irrecoverable loans are classified as Bad debts. Other countries
would have other usages. The terms for this would necessarily be different in different languages.

56

Footnote by Ustdh, Ahmed Fazel Ebrahim: This should have been if, despite his

57

Footnote by Ustdh, Ahmed Fazel Ebrahim: A person might have lost hope of recovering a debt
from his debtor due to the latters financial position or devious financial conduct. However, if such a
debt is not written off or waived, then despite the loss of hope relating to the recovery, the debt is
still due upon the debtor. I do not think that a clear Shariah text of hadith exists in regard to such a
matter. The Seminar panel concludes that the subsequent recovery of such a debt will be treated as a
new income into a persons asset base due to which Zakh is not liable on that amount for the
previous years. No textual evidence for such a conclusion is provided. Sometimes, it would be true to
say that recovery of the loan after many years would imply, in the case of obligating the owner to
Zakh, on the debt, of the previous years that the recovered loan is totally consumed. It would also
imply, in some situations, that the person, because of regarding the debt as still due from the debtor,
becomes obligated to discharge Zakh either in every year subsequent to the loan or during specific
years thereafter. Such an obligation, in the case of a person with no other financial resources, would
place him under severe constraint in a period when he has no access to his capital and has neither
hope of recovery. To thus, consider the recovery as a new income into the asset base is, in rational
terms, best for the purpose of protecting the owners capital. Nevertheless, I would still prefer, in the
case of those who are financially well off, to discharge the Zakh of all the previous years of the loan
recovered.

(c) The recoverable loan is of three kinds58:


i) That which is loaned in cash or as the price59 of commercial goods due from
somebody. Zakah will be due on this amount, after its realization, for the previous
years as well.
ii) The liability which is neither in lieu of commercial goods nor as loan e.g. inherited
goods or those received through a will.60

Furthermore, the opinion arrived at the above fiqh academy relating to the discharge of loans
recovered in the case where recovery was not expected has also been the resolution of The
Fatwas delivered by the Islamic Jurisprudence Academy in Jeddah (Islamic Conference
Organization). If I correctly remember, the English translation of the verdict was taken from the
Harf (Egyptian) Website.
Zakah on debts (Decree No. 1 Session 2)
After the Academy surveyed the different studies submitted about "Zakah on Debts" and after
detailed discussion on the subject, the following has been decided:
1. There is no Qur'anic verse or a Prophet's Hadith regarding the subject.
2. The Companions and their followers hold different points of view on how to give Zakah on debts.
3. Therefore, Juristic Schools hold different opinions on the same subject.
4. These different opinions are based on the controversial point whether Zakah is due on money
expected to be settled or not. There are two viewpoints in this regard:
First: Zakah is due on the lender annually if the borrower is rich and can settle his debts.
Second: Zakah is due on the lender following the lapse of a year after he receives the debt if the
borrower is insolvent or used to procrastinate.
The Second resolution here above given amalgamated with the resolution of the Indian Fiqh
Academy allows us to say that a level of consensus exists between the Arab and Indian Ulama on
this matter. Here again, I state that a level of consensus since the Islamic Fiqh Academy of Jeddah
does not embody all the Ulama of the Arab region.
58

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the following categorization comes from the
classification of loans made by Imam Abu Hanifa R.A. The source of his view needs to be given.
Furthermore, whether this form of a conclusion will be a form of ijm on a ruling will be dependant
on the actual format of consensus on the ruling. Did all the scholars verbally or otherwise express
consensus? Did they express consensus in writing? Did some of them disagree but were dominated
by the overpowering votes of scholars of the Hanafi mazhab? Were some of the scholars silent on the
matter? The absence of all the latter mentioned possibilities fails to provide clear consensus on this
matter although the introduction to this Seminars conclusions state that scholars of all the mazahib
attended the Seminar. This is because there might have just been a few or one scholar from another
mazhab. I doubt whether there was a Mlik scholar at the Seminar. Were most of the attendees from
the Hanafi School? In the case where we can establish that most of the scholars who adopted these
views were Ahnf, we can conclusively say that this is the ijm (consensus) of the Hanafi scholars in
the India region. Such an ijm reflects a form of localized and limited ijm that is not binding on
scholars and followers of other mazahib.

59

Footnote by Ustdh, Ahmed Fazel Ebrahim: This should read as: That which is loaned in cash or is
the price of commercial goods that is due from somebody.

60

Footnote by Ustdh, Ahmed Fazel Ebrahim: In the case of inheritance to be received, it is my


personal opinion that where the inheritor is assured of receiving his/her share of inheritance, the

iii) The liability which is not in lieu of some goods, e.g. the amount of (dower).
Zakah will be obligatory on ii) and iii) one year after its realization. No previous
years Zakah will be payable on them.61
(d) As for instalment amount to be paid in a year for the long-term loans taken from
government or private institutions, Zakah will be obligatory on the amount of all such
long-term loans. Only the yearly instalment of repayment will be deducted for the
purpose of computing the Nisab.62
portion of inheritance to be received must be added to the inheritors assets on the date of the death
of the deceased person. Sometimes, the inheritance value is only finalized after years, in such a case
also, the inheritance received will be considered as part of the inheritors assets since the death of the
deceased from whom the inheritance has been received. In the case where an inheritor is unsure of
receiving the inheritance or has been deprived thereof, the inheritor may assume any subsequent
receipt of inheritance as an additional entry into his/her asset base for the purpose of Zakh
Calculation. Muslims can receive money from a deceased estate either through entitlement to inherit
or through a bequest from another Muslims estate.
61

Footnote by Ustdh, Ahmed Fazel Ebrahim: The original translation incorrectly reads as Zakt will
be obligatory on (b) and (c) one year after its realization.

62

Footnote by Ustdh, Ahmed Fazel Ebrahim: The translator or the original urdu/Arabic text ought to
state:(d) As for instalment amounts to be paid in a year for long-term loans taken from government or
private institutions, only the yearly instalment of repayment will be deducted for the purpose of
computing the Zakh due.
In regard to loans and liabilities due for major purchases like expensive vehicles or homes etc,
people sometimes become indebted over spans of 3 or 4 decades in order to repay the loan,
especially when we add the interest factor into the equation.
I do not know of a hadith that restricts the deduction of the yearly instalments on any given asset as
the value of liability. In reality also, the yearly instalments due do not form the absolute liability in
terms of that asset.
Let us compare another resolution
The Fatwas delivered by the First Symposium of Zakah Contemporary Issues (Held in Cairo
Rabi` Al-Awwal 14, 1409 A.H. / October 25, 1988 A.D.)
Fatwas and Recommendations
9. Zakah on housing and postponed investment loans
According to clause 10 issued by the First Zakah Conference regarding Zakh due on investment
debts, and according to the opinion adopted in this conference which states that: "If the debt is
postponed, it does not affect the obligatory nature of Zakh", the subject still needs further study. In
this symposium, the following opinion is adopted:
As for housing loans which finance a fixed asset upon which no Zakh is due and which are settled
on long-term instalments, their value is to be deducted from the required annual instalment if the
debtor does not have other money to settle such debts.
Notes by Ahmed Fazel Ebrahim

The English translation of the above resolution is somewhat poor. I think it ought to read as:
As for housing loans which finance a fixed asset upon which no Zakh is due and which are settled
on long-term instalments, the required annual instalment value is to be deducted from the Zakatable
assets if the debtor does not have other money to settle such debts.
Nevertheless, the obvious meaning intended to be conveyed is that a person owing money on any
asset that is purchased over a period that extends beyond a year will only deduct the coming years
instalment amount as a liability if he has no other assets to settle the full debt.
The distinction made regarding the ability to settle the debt is unique in the above resolution. It
obligates a person, who has the financial capacity to discharge such long term debts, not to deduct
any amount of the full value of such debts from the Zakatable assets since given such an allowance
will allow them financial benefit.
I would allow the deduction of the total long-term liability from the Zakatable Assets. In the case of
the poor, this would be fine. However, in the case of some of the rich who have long-term
liabilities in respect of luxury vehicles and other major investment assets, the allowance to deduct
such long-term liabilities from the Zakatable assets imply that they , in most instances, are not
obligated to discharge any Zakh. From a theoretical viewpoint of the concept of liability in terms of
Hanafi fiqh, it would be correct to say that they, despite their affluence, are not obligated to Zakh.
Yet, at some stage or other, according to the normal investment trends, their liability will not remain
to be same. We need to admit that despite the increase in affluence, such persons also have larger
expenses and are at greater financial risks.
I previously answered a question in this regard with the following:
Assalaamu Alaykum, With regard to:
I own a house that is worth $400,000 but I have a mortgage loan of $300,000 still on it that I am
currently paying. Also, some of the assets that I have are in retirement funds that will pay for
pension ISA after age 60-65. Would I pay zakah on the retirement funds I and my
employer have saved . Also would the $300,000 loan have to be offset first with my current
assets before calculating what to pay zakah on?
1. The $300,000 loan will be first offset against the total of your assets upon which Zakaah is due in
terms of the Hanafi mazhab. In terms of the Shafi mazhab, you will offset only current liabilities
against your total assets upon which Zakaah is due. Thus, in terms of the Shafi mazhab, you will
offset only the monthly instalments due towards the house.
On this matter, I adopt the opinion of the Hanafi scholars which states
32 : 1 :
"

96 : 1 :




Also, in all cases where the home is bought through interest-financing, there is a interest liability
which is added to the original cost of the property which the Bank or financial institute charges the

3. Commercial Advances and Advance Deposits on Account of House/shop


Rents etc. and Zakat thereon.
(a) Zakah will not be obligatory on the amount which one pays as advance price of
commercial goods but has not been delivered the possession thereof. It will, however,
be obligatory on the seller who still holds the goods and has also received the price in
advance.63
(b) As for Zakah on the sold goods, in case of Bai Salam and Bai Istisna it will be
obligatory on the seller64 before handing over the goods to the buyer. Apart from the

client. In such a case, I am of the opinion that the interest part is not included in the liability since the
Shariah does not regard interest payments that are due to others, to be a valid form of debt and
liability. Others might say that although that is valid, the reality is that the interest is a debt that we
have to discharge within the non-Islamic financial world that we operate. Thus, the interest owed
must be included in liabilities. This is valid, yet I would only allow this if it was absolutely dire and
critical that such a interest-related debt be taken. If this debt was for Islamically impermissible items
or items of luxury where the person could abstain from such debt, then I would not allow such a
person to include such interest liabilities within the other liabilities that the Shariah acknowledges.
The Shfi position of current liabilities seems to have been considered by some contemporary
scholars, or by Shfi scholars of the last two centuries, as monthly instalment due. This seems to
be extended by other scholars to yearly instalments due.
Zakh on the retirement funds is separately discussed. Nevertheless, the total of halaal premiums
paid by you to the Retirement fund + (plus) total amount of employers contribution to the fund as a
gift to the employee + any Hall returns on the fund would be Zakatable. Non-Halaal returns in the
fund will not be Zakatable.
63

Footnote by Ustdh, Ahmed Fazel Ebrahim: The above answer is flawed in accounting terms. If
money is forwarded to the seller in advance, then on the day when Zakh is due, either the forwarded
money is considered as an asset or, alternatively, the same amount of goods would be regarded as an
asset.

64

Footnote by Ustdh, Ahmed Fazel Ebrahim: The seller is liable for Zakh on the sellers cost of the
goods only if the seller has not taken payment for the goods and has neither sold the goods. To
obligate the seller to zakaah on the goods that have been sold on credit but not yet delivered will
imply obligating the seller to double Zakaah first on the value of the goods, and secondly on the
amount of debt created by the purchaser. The Bai Istisna contract is similar, in one sense, to the
credit sale contract since the contract is concluded and the debt is established on the client who
orders the goods. To consider the amount owing by the client as the value on which Zakh is due will
imply regarding the profits to be realized before actual and real realization of the same. This will be
unfair. Thus, the sellers or manufacturers cost value of the goods produced or in production line
prior to delivery will be a fair value on which Zakh is to be paid. Where partial payment has already
been made for such goods, the value of clients goods in production (minus) payment will be a
fair value to calculate Zakh on the value of clients goods in production. In the latter case, the
balance owed by the client is also a debt on which Zakh is due. Although the profits are not
immediately realized, but it is generally realizable. The only time when the debt is not to be realized
is if the contract is terminated. In such a case, the Zakh paid on the debt to be realized from the
client can be considered as pre-paid Zakh. The necessary adjustments relating to the forward
payment and its refund will also have to be made in order to exactly discern the Zakh value. If a
client owed R3000 and paid R9000 as a pre-payment for an order which was done before the date on
which Zakh was due upon you, and cancels the order after any day following the day on which
Zakh was due on you, then in the case where this cancellation is mutually accepted, 2,5% of R3000
will be pre-paid Zakaah (if Zakaah has been already discharged on debtors), and 2,5 % of R9000 will
also be regarded as pre-paid Zakaah (if Zakaah has been already discharged on the cash received).
The Zakaah of the goods manufactured will then be recalculated at cost price without deduction of

clients payment since the latter was refunded. Zakaah of such production goods for the client has
to be then discharged.
Where such goods were not yet produced, but the raw materials were allocated for the production, the
following will apply:
----------

Zakaah on raw materials used by manufacturing concerns


Assalamu Alaykum Wa Rahmatullaahi Wa Barakatuhu
In regard to:
Have you done research on whether zakaah is payable on raw materials that are used to make
items that would be sold, e.g. raw materials of an oil manufacturer, or raw materials of a
carpenter. Would zakaah be payable on plastics and bottles that would be used to pack the items
manufactured.
Answer
All raw materials that are used in the actual production of goods that would be ultimately classified as
"finished or end products," would naturally be part of the business assets.
Examples:
1. A carpenter has 2000 meters of oak wood of a specific quality and size which he uses to make tables
and cupboards for clients. Any wood from this 2000 meters that is still unused or not allocated to a
client for wood purchases made would be part of his assets at the latest market price (his cost price)
from his wood suppliers.
However, if he has already taken orders for 50 cupboards that have still to be made and has already
collected the money for the 50 cupboards (each cupboard uses e.g. 8 metres of wood), then he will
deduct 50 x 8 = 400 meters from his stock of 2000 metres since that quantity of wood is already sold
and he has received the money.
Likewise, if the orders were confirmed and the client was billed on credit, he will likewise deduct the
amount of raw materials to be used for the orders since the money he is to receive will be included into
his net assets. Otherwise, if this procedure is not followed, we will be placing double zakaah on him a)
on raw materials + b) money received for "end or finished products" in which some of the raw
materials are to be used.
He will also add the value of all unused nails, wood glue, beams and all other supplies that he uses to
manufacture the cupboards.
2. Apply a similar analogy in the case of a cooking oil wholesaler or manufacturer. 100,000 litres of
unpacked oil will be part of raw materials and assets at the latest market price in the wholesale
industry (not retail market).
All bottles (plastic and glass) of all sizes will be part of assets used in the production process. Thus,
Zakaah will be on total litres of oil + total value of all packaging material.
Here, if e.g. Hyper-Market had confirmed and order for 20,000 litres (twenty thousand x 1 litre
bottles), then, if he has billed Hypermarket already, then he will deduct 20,000 from the 100,000
litres. He will also deduct 20,000 plastic bottles from his stock of plastic bottles. He will then add
this 80,000 litres + remaining bottles to the value of his stock of finished products.

sales in the above two manners, another sort of sale in which the sale has been
finalised but the buyer has not taken possession of the goods, also falls in this
category, and therefore, the Zakat on such goods will be obligatory on the seller and
not on the buyer.
Note: Bai Salam is the deal in which the price is paid in advance but the buyer receives the
goods after quite sometime e.g., the farmers take the amount of their produce at the time of
sowing the crop and deliver the grain after it is harvested.
3. If a man deals with making leather belts and bags. He has 80,000 metres of leather of various
colours, quality and types. 20,000 metres is used up in the manufacture of belts and bags. Then
Zakaah is due on the 60,000 metres at the market value (for the manufacturing industry) (not retail or
wholesale industry). He will then add this to the value of his stock of finished products.
4. A man makes "Squeeza cold drinks." They have 40,000 litres of unused flavourings still in stock.
He will have to pay Zakaah on that. However, if he had already sold and taken the money for 20,000
litres of cold drinks (and each 10 litres of the end product is made with one litre of flavouring) but
has to still produce and deliver the drinks, then (20,000 divided by 10 = 2000 litres of flavouring)
will be deducted from the stock of 40,000 litres of unused flavouring. To this they will add their
value of "finished products" which in their case is number of litres already filled in the various sizes
of bottles and ready for sale and distribution.
5. "Mufti Kurta wala" sells kurtas (long shirts). He has 400 metres of different colours and types of
material left. There are no confirmed orders in relation to the 400 metres. Thus, Zakaah is also due
on 400 metres of kurta material + stock of kurtas available for sale.
6. A Muslim company makes "Badaam (Almond) toothpaste." They have two thousand litres of the
paste still in containers. They did not yet pack the paste into tubes. Thus, they will pay Zakaah on
2000 litre of badaam (almond) paste.
7. One Malaysian guy sells Dabb (lizard) oil. He has 500 litres of the oil still unpacked into the little
glass bottles. He will pay Zakaah at the market value of 500 litres of dabb oil in terms of the
wholesale or industrial industry where gets his supply of Dabb oil. He will add to his Zakaah, the
value of all the empty glass bottles that he must still fill. The same applies to Itr Walaa (person
selling oil-based perfumes).
8. A jersey and socks company makes jerseys and socks, they have 80,000 metres of acrylic and
20,000 metres of cotton unused. They will pay Zakaah on this stock which will be eventually
consumed by the end products.
9. In many industries, certain extents of the raw materials used to manufacture the end product is
often on the production belt / line. In such a case, you will either evaluate the total extent of the
various raw materials that have thus far been used to create or manufacture the product, then you will
add the added economic value to the product under manufacture by evaluation of the added monetary
value given to the raw materials because of the labour and time put in to create the product. In such a
case, total cost of labour hours to develop the raw materials to present stage of unfinished product +
lights, water, and other economic costs added to the unfinished product. Examples of this will be
found in the furniture industry, dental technologists who make teeth, etc.
The more complex the manufacturing process becomes, the more technical would the calculation of
available raw materials become. In all the above examples, many accounting principles of "Cost and
management accounting" would apply and should be used to accurately assess the value of unused
raw materials.
Ustaaz, Ahmed Fazel Ebrahim, Johannesburg
The Zakah of Bai Salam is an issue that I still have to research.

Bai Istisna is the deal in which the artisan or manufacturer or the entrepreneur obtains order
from somebody for the manufacture of some item/goods and gets its whole or part payment
from the person who places the order and the goods are delivered at a later date after they are
ready for delivery.
(c) Regarding the security deposits paid while taking a property on rent, general opinion of
the participants was that Zakah on such deposits will not be due on the tenant. Some were of
the opinion that Zakah on the advance deposits shall be due on the landlord while some
favoured the view that Zakah will be due on nobody.65
4. Zakat on Diamonds
(a) Diamonds and other precious stones are highly valuable. Zakah on the diamonds etc. will
be obligatory on the purchaser if purchased for commercial purposes66.
(b) Zakah will not be due on diamonds purchased for use as ornaments67.

65

Footnote by Ustdh, Ahmed Fazel Ebrahim: The basic principle of Zakh is that it is obligatory on
the owner of the wealth. From this simple principle, we understand that a rental deposit remains in
the ownership of the tenant, thus the tenant is obligated to pay Zakh on the deposit. The landlord or
lessor is not obligated to Zakh on the lease deposit taken from the tenant since the deposit is not
his/her/their ownership. The landlord is sometimes a non-Muslim or a juristic person. How can a
non-Muslim landlord be obligated to pay Zakh on the lease deposit? The stupidity of obligating the
lessor to pay Zakh is also manifest from the latter question cum argument? We can neither discard
the obligation of Zakh on the wealth since it is not wealth that is owned by a juristic person that has
the nature of a charitable institute. Thus, it is rational that the tenant be obligated to pay the Zakh on
the lease deposit. This argument can be extended to the case where a person has come out of prison
on bail. Thus, despite the bail going into the possession of the State or the State account, ownership
is retained with the individual released. If such a persons Zakh due date has matured, he will have
to pay Zakh on the bail. It is a different matter if the person violates the terms of the bail and thus
forfeits the bail.
Also see the following fatw (769) from Al-Azhar

:
. :
. ( 769 )
. :
. 1952 2
:
.
. :
:
.
.

********
66

Footnote by Ustdh, Ahmed Fazel Ebrahim: If the diamonds are for personal use in jewellery, then
no Zakaah is liable according to the some members of this seminar. Refer to later parts of this
document where the scholars expressed differences in this matter.

(c) A small diamond is even much costlier than gold and people purchase them to convert
their wealth and thus preserve their cash for certain considerations. These diamonds can be
readily cashed at the jewellers shops and often they fetch higher price than their purchase
price. Therefore, they are not only the means of preservation of wealth but a means of
profitability as well.
This aspect of the issue also came under deliberation at the Seminar that a cash amount of
millions of rupees can not only be preserved through purchase of some diamonds, they can be
again converted into ready cash anytime.
In case diamonds are not vegetal like gold or silver68, nor the purchaser trades in
jewels, nor he has the intention of its trade at the time of purchasing nor has any intention of
making it a commercial commodity, it does not fall in the category of Nmi69. Therefore,
under such conditions, Zakh will not be obligatory on him.
A second argument was that diamonds are not considered as a necessity of life but a
means of preserving the accumulated wealth and a means of profit as well. Therefore, Zakah
will be obligatory on these diamonds.
Keeping in view all the arguments, many participants opined that under the former
condition Zakah is not obligatory. But an equally large number of participants argued that
non-obligation of Zakah on this hoarded wealth will deprive the poor of their share of income
and insisted on Zakah being obligatory on diamonds.
The following Ulama were in favour of Zakh being levied.
1. Qadhi Mujahidul Islam Qasmi.
2. Maulana Tayyab-ur Rahman, Ameer-e-Shariah Assam.
3. Maulana Mufti Azizur Rahman, Mumbai
4. Maulana Aijaz Ahmad Azmi.
5. Maulana Mujeebullah Nadvi.
6. Maulana Shams Peerzada, Mumbai.
7. Maulana Aneesur Rahman Qasmi, Patna
8. Maulana Abdul Raheem, Bhopal.
9. Maulana Mufti Abdul Rahman, Delhi
67

Footnote by Ustdh Ahmed Fazel Ebrahim: This means that if the diamonds are used in any personal
jewelry or watch etc that is not primarily for the purpose of resale, then Zakh is not due on such
diamonds immaterial of its value. The Hanafi interpretation comes from the hadith There is no
Zakh on stone. The details relating to this hadith need discussion. The ruling will also be extended
to other precious or semi-precious stones.

68

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the translator meant to use the word flexible.
Gold and silver are both not vegetal. However, both of the latter minerals can be moulded and
shaped to various forms. Diamonds differ in nature. Diamonds cannot be alloyed with other
minerals. Diamonds are cut to particular sizes and shapes depending on the original size of the raw
diamond that is mined.

69

Footnote by Ustdh, Ahmed Fazel Ebrahim: Nmi refers to wealth that has growth. Inherently,
diamonds can appreciate or depreciate in value depending on the colour and size. Sometimes due to
rarity of the unique features of certain diamonds, its price can appreciate to a very high value.
However, a home in which you reside could also appreciate in relation to the property market in the
area of its location. Nevertheless, it is not regarded as Nmi since the appreciation brings no
tangible and immediate financial gain to its owner. The gain is only realized after selling it.

10. Maulana Zubair Ahmad Qasmi, Sitamarhi


The following Ulama were against the liability of Zakh.
1. Maulana Burhanuddin, Lucknow.
2. Maulana Habibur Rahman Khairabadi.
3. Maulana Nematullah Qasmi, Deoband.
4. Maulana Obaidullah Asadi, Banda.
5. Maulana Khalid Saifullah Rahmani, Hyderabad.
6. Maulana Naseem Ahmed Qasmi, Patna
7. Maulana Sadarul Hasan Nadvi, Aurangabad.
8. Maulana Mohiuddin, Gujurat, and others
5. Zakh on Provident Funds70
Zakah will not be due on the provident fund unless it is finally received by the
employee.71 If it amounts to the Nisb, Zakh will be due on it after one year of its receipt by
the employee.
Provident fund is compulsorily deducted from the pay of an employee at a prescribed
percentage.72 But some persons (to avoid income tax or due to other expediencies) deposit
70

Footnote by Ustdh, Ahmed Fazel Ebrahim: I require to do further research in this field.

71

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the following details

Zakh on a Provident Fund


(Taken from Jamiah Binori, Karachi, Pakistan website Monday, 22 December 2003)
Question:
What is the ruling for Zakh on my retirement account (provident fund)? Do I need to pay Zakh every
year on this money, or only when I withdraw from it? This account has normally a restricted access.
This is my money, but I can only withdraw it after 60 years of age. If I want to withdraw before that, I
will have to pay 10% penalty on the amount I withdraw. Please advise.
Answer:
In the question until the amount does not come into the possession, it will remain the property of the
institution and for which you don't have to pay Zakh. However, if the whole amount or part of it
comes into your possession then Zakh is obligatory on the whole or part, as may be the case,
according to the rules and regulations of Zakh in Shari'ah. Istift No. 17109
Notes by Ustaaz, Ahmed Fazel Ebrahim on the above
a. The translator means until the amount does not come into your possession.
b. This fatwa does not specify whether Zakh will be due for all the past years once the money comes
into the possession of the policy holder. It neither States that Zakh will be due after a year has
lapsed on money received from the fund. It neither discusses the harm income that could accrue to
the fund through interest earnings and other Shariah prohibited transactions or investments. It also
erroneously regards the funds to be in the ownership of the company managing the provident fund.
The Managing company has possession of the funds assets but not ownership of it. Ownership is
vested in the persons contributing to the fund, and is related to individual investment capacities.
c. Istift means seeking a fatwa.
72

Footnote by Ustdh, Ahmed Fazel Ebrahim: If the Ulam at this Seminar viewed that zakt is not
due on such a provident fund because the employee is compelled to the fund by virtue of the

more than the obligatory amount in the provident fund. In case the accumulated amount thus
voluntarily contributed reaches the Nisaab, Zakah will become obligatory every year on that
amount. This excess amount deposited voluntarily in the provident fund is a sort of trust, and
Zakat becomes obligatory on the trust amount.
6. Amwl of Madaris
There is no fixed owner of the funds of Zakah paid in the Madaris or Baitul Mal73.
The owner of these Amwal is Allah. Likewise, the Amwal or amounts of money given as gift
employment contract, and the contribution to the fund is thus compulsorily deducted from the pay of
the employee, then the same can be said in regard to many other employees who are compelled to
contributions towards a Pension, medical aid fund or any other fund. Thus, in relation to the Ulam
at the Seminar, where you are compelled to financially contribute to any fund, you will not be
obligated to the zakh thereof although you are (or your family is) the ultimate beneficiary of the
fund. To the contributor or employee who pays towards the fund, this would, in the absence of being
affluent or financially well-off, be very suitable to the contributor since the annual Zakh of such a
fund could accumulate to a large amount that would have to be discharged on maturity of the fund.
Since ownership of the money in the fund is held by the contributor, I would personally favour an
opinion of obligating the person owning the Provident fund policy (or the beneficiaries thereof) to
discharge the Zakh on all contributions to the fund, as well as on any Hall returns on the fund. The
annual fund value (total contributions + hall returns (minus) tax liability) must be considered
together with other Zakatable assets on a yearly basis.
It seems that the panel of scholars at the Seminar considered that in cases where a persons monetary
resources are frozen, and such resources cannot be used towards personal needs or for generating
income, then Zakh is not liable during such a period. They thus considered that only extra
contributions to the fund become Zakatable since that was a voluntary contribution to the fund. It is
plausible that this is allowable in the Shariah. Nevertheless, although you cannot personally use the
funds to generate income, the fund itself, as a juristic person, financially engages the contributions of
the policy holders to generate income. It is thus that I would favour a position relating to the
discharge of Zakh on such funds. In fact, the purpose of not releasing the funds to the contributor, is
also purely for the financial benefit of the policy holder, and is kept as a reserve savings for later life.
Many people are also affluent and have the means of surviving without the need for the proceeds of
such a fund. In fact, they engage with further investments of the same nature of the provident fund to
secure further income or provide for beneficiaries in the event of any accident or death. Thus, those
who adopt the view that the fund would not be Zaktable, would also not consider such an asset
when evaluating whether the contributor is entitled to Zakh in particular cases of need. This would
also be a suitable economic position for those in need who are not wealthy. All scholars would thus
agree to Zakh in the case where contributions to the provident fund has been on a voluntary basis.
The exact format of provident funds and the investment avenues employed by companies that
manage such funds differ in various periods as well as in various countries. Each fund has to be
assessed on an individual basis for a Shariah classification.
Also refer to
Payment of Zakat and receiving of interest on Provident Fund. Compiled by Mufti Muhammad
Shafi. Translated into English by Anwar Ahmed Meenai. Printed by Darul Ishaat, Urdu Bazaar,
Karachi 1. First Edition 1995. (63 pages)
73

Footnote by Ustdh, Ahmed Fazel Ebrahim: A juristic person/ institution that is formulated as a waqf
Islamic trust will not be obligated to Zakh since all capital and income in such a trust is due
towards the beneficiaries, and no more remains in the ownership of the persons who formed or
contributed to the trust. However, the formulation and definition of a trust in contemporary nonIslamic legal systems does not necessarily become classified as a waqf Islamic trust with defined
beneficiaries. This is because this non-Islamic trust concept is often used as a financial tool to
manipulate for the purposes of taxation or securing assets from creditors. There is no sincere
intention to remove the capital contributions to the trust from personal ownership. Very often,

or Sadaqat-e-Nafela to the institutions for expenditure on the deeds of virtue or for prescribed
heads of expenditures, enter into the domain of Allah. Therefore, Zakat is not at all obligatory
on the amounts deposited in Baitul Ml, Madris or other charitable institutions of utility and
service to religion.
7. Zakah on Ml-e-Haraam
1. If some ill-gottten Ml (Ml-e-Haraam) comes into ones possession, and if it is intact
as it was, and also if the real owner of this Mal is known, it is obligatory to return this
Ml to its real owner.
2. If the quantity of Ml-e-Haraam is not definitely known, its quantity should be fixed
to the best of knowledge and assessment. It should be returned to its real owner. In
case the owner is unknown, it should be given as alms without any expectation of
recompense from Allah.
3. If the owner of Haraam Ml has become known and its return has become obligatory
but it is not returned and kept in ones own possession, and also if there is nobody to
claim its ownership, in such a case not only Zakat on this Haraam Ml become
obligatory on the person, he will also have to give away this Ml as alms without
expecting any recompense from Allah.74

various and complex financial juggling is undertaken to prevent taxation of income on the trust or on
personal capital. In such a case, Zakh must be discharged on all non-utility assets of the trust.
In the case of companies or legal business partnerships that are registered with the financial
authorities of any State, the giving of Zakh from company profits, in the case where these business
institutions or co-operations are owned by Muslims, is not because the company is obligated by the
Shariah to discharge Zakh. Rather, it is the personal choice of the shareholders or partners to
directly discharge Zakh from the company instead of making such an allocation from any of their
other assets.
Some Islamic countries may perhaps intend to directly obligate businesses to discharge Zakh to a
State fund. Where this is done, the Zakh would be calculated in the normal Shariah format.
However, this places some shareholders or partners at a disadvantage since the individual or other
owners or partners may not be liable to discharge Zakh after their remaining assets and liabilities
are related to their ownership in the company/institution/business/legal partnership etc.
Any institution that collects funds for charity and distribution will neither pay Zakh on any of the
money collected since all money received by the institute belongs to Allah and has to be distributed
in conformity to the nature of the funds received, and in relation to the intention of the donor. Even,
in the case where any such Islamic institution has invested non-Zakh funds, then also, no further
Zakh can be levied on the capital growth or the income since the capital as well as any income or
appreciation of the capital investment has already been allocated for Islamic work or for the pleasure
of Allah.
Likewise. It is also illogical to pay Zakh on Zakh that is collected for distribution.
74

Footnote by Ustdh, Ahmed Fazel Ebrahim: If the owner of the Harm Ml has become known,
returning that prohibited wealth is absolutely obligatory. You cannot keep it in your possession
and you must return it to its lawful owner as quick as possible. You cannot distribute this money as
alms and charity when the lawful owner can be reached. The Shariah has not levied Zakh on Harm
wealth, thus, despite the crime of usurping and retaining such wealth with you, it is preposterous to
conceive of the Shariah levying Zakh on Harm wealth. If there is nobody to claim its ownership, in
such a case also, there is no Zakah obligation on this Harm Ml. The person will also have to give
away this Ml as alms without expecting any recompense from Allah.

Basically such ill-gotten acquisition (Ml-e-Haraam) should be returned to the owner.


If the owner is not known, it should be given away as alms without expecting any
recompense. If the Haraam and Halaal Ml become intermingled, the estimated
Haraam Ml should not only be given away as alms but Zakah should also be paid on
it. This is to discourage acquisition of ill-gotten wealth75.
It is strange that a entire panel of scholars at the Seminar embark on obligating Zakh on Harm
wealth. This is illogical and against the usul (principles of Islamic jurisprudence). Such a ruling is an
example of a ijma (consensus) that is absolutely void in terms of the Shariah. It reflects the
possibility of consensus on Islamic juridical matters which, in terms of the usul of Islamic
jurisprudence, is absolutely incorrect. This type of consensus will very rarely be found amidst the
early jurists of Islam. Its prevalence seems to become rife among contemporary Ulama.
75

Footnote by Ustdh, Ahmed Fazel Ebrahim: Discouraging ill-gotten wealth is necessary. However,
this cannot be accomplished by violation of the principles of the Shariah. There is no Zakh on
Harm wealth. Zakh is strictly due on hall wealth. It is thus that Zakh is not due on interest
income and income earned from contracts that the Shariah has prohibited. Otherwise, if such
reasoning was valid, we could have obligated people to pay Zakh on interest earned in bank
accounts.
Zakh is a Ibdah and a pillar of Islam. To obligate Zakh on Harm wealth is making a mockery of
the Ibadah. Zakh is to purify wealth. The so-called discharge of Zakh from the Harm wealth does
not purify it, it rather ridicules the concept of Zakh and allows the thief or usurper to think that his
ill-gotten wealth can be used since Zakh has been discharged. Even ordinary Muslims know that it
is stupid to give Zakh on Harm wealth.
In the Sixth Seminar of the Islamic Fiqh Academy of India which was subsequently held at
Oomerabad (North Arcot District, Tamil Nadu) from December 31, 1993 to January 3, 1994, hosted
by the Jamia Dar-us-Salam, Oomerabad, the following is clearly stated:
The Holy Quran has enjoined upon Muslims to pay Zakh out of their clean, lawful earning and to
pay ushr out of the produce one obtains from the lands (O you who believe, spend out of your clean
and lawful earning and out of what you get from the lands 2:26)
How can Zakh then be made, for any reason whatsoever, obligatory on Harm wealth?

The following fatwa delivered by the Fourth Symposium on Zakah Contemporary Issues (Held in
Bahrain Shawwal 17, 1414 A.H. / March 29, 1994 A.D.) is valid. Also refer to notes on it

The Fatwas delivered by the Fourth Symposium on Zakah Contemporary Issues (Held in
Bahrain Shawwal 17, 1414 A.H. / March 29, 1994 A.D.)
Second: Zakah on ill-gotten money
1. Ill-gotten money refers to any sort of possessions which the Islamic Shari`ah prohibits owning it,
either because it is harmful such as wine, illegally acquired such as looted money or illegally gained
such as usury and bribe.
a- If one acquires money illegally, he should return it to its original owner or his inheritors however
long period passed with such money already in hand. If one does not manage to know its real owner,
he should spend it on charitable deeds on behalf of its owner.
b- If one receives money as remuneration of a prohibited work, he should spend it on charitable deeds
but not return it to the payer.

8. The meanings of Fi Sabilillah76


1. The participants of the Seminar were unanimous in the opinion that the
Ayah laying down the heads of expenditure of Zakah (Surah Taubah: 60) has limited

c- Ill-gotten money is not to be returned to its real owner if he insists on illegal transactions such as
dealing in usurious interest. Such money is to be spent on charitable deeds.
d- If it is difficult to return the very same money to its real owner, an equivalent sum of money should
be returned instead. If its real owner is not known, such sum of money is to be spent on charitable
deeds on behalf of its owner.
2. No Zakah is due on ill-gotten money and it should be eliminated.
3. No Zakah is due on illegally acquired money because it is not entirely owned by its present owner. If
returned to its real owner, he should pay Zakah on it for one year even if it remained in the
possession of another for years.
4. If the holder of ill-gotten money does not return such money to its real owner and pays Zakah on it,
he is still sinful as far as he has such money because he has just paid a part of it while the rest is still
in his hand. He is not acquitted unless he returns it to its real owner or gives it as charity.
Notes by Ahmed Fazel
On (1 c.) I would prefer the money to be returned to the person you took it from immaterial what such a
persons deeds are. If the ill gotten money was interest, then perhaps the interest can be given to
people from whom such a person interest. If the money was stolen from him, then you have to return
it to him. In cases where such a person stole from others, the money may be returned to those he
stole from.
On (2.) This means that the ill-gotten money must be disposed through distribution to the poor and
needy. It does not mean that you must burn the money or destroy the coins. Maybe, some jurists
might have such an opinion.
On (4.) The money can only be given in charity if the original owners or their inheritors cannot be
located.
Further discussion by Ustaaz, Ahmed Fazel Ebrahim
The above fatwa delivered by the Fourth Symposium on Zakah Contemporary Issues (Held in
Bahrain Shawwal 17, 1414 A.H. / March 29, 1994 A.D.) correctly deduces that there is no Zakh on
Haram wealth, while the fatwa of the Islamic Fiqh Academy of India has erred in this regard. We thus
note that Ulama of different regions issue diverse rulings on the same matter. The absence of interexchange of fatwa and failure of the Ulama to compare their fatawa against that of other scholars will
seriously harm the path of Islam. Fiqh (Islamic jurisprudence) was only spread through humility. It will
also only be learnt through respect of the views of others, and by giving true consideration and honest
evaluation of the views of other Ulama.
76

Footnote by Ustdh, Ahmed Fazel Ebrahim: I have to research this area before I conclude on any
views. In this regard, because it is a matter of Tafsr, I prefer that the interpretations of the Sahbah
and the great jurists be collated. Thereafter, we can conclude that some Ulam adopt the opinion of
those who restricted the meaning to Jihad, and others accept the interpretation of other Mufassirn or
jurists. This would give us a better understanding since acceptance of any view in this regard is
purely based on the ahdith and the interpretations of the Salaf of this Ummah. I acknowledge that
the members of the Seminar also adopt an opinion in relation to the interpretations of the Salaf, but I
prefer that attribution of the opinions held by members of the Seminar must be made to the Salaf.

the expenditure to eight heads only and this is full and final. No addition can be made
to it. The recommending of these eight heads is factual and not supplementary.
2. The participants were unanimous that the meaning77 of Fi Sabilillah in this
Ayah is only Askari Jehad78. But a few participants opined that Jehad Askari includes
77

Footnote by Ustz, Ahmed Fazel Ebrahim:

Refer to the following sets of fatwa, the first were resolved in Cairo and the second in Mecca.
The Fatwas delivered by the First Symposium of Zakah Contemporary Issues (Held in Cairo
Rabi` Al-Awwal 14, 1409 A.H. / October 25, 1988 A.D.)
7- The Zakah channel : "in the way of Allah"
The Zakah channel "in the way of Allah" refers to jihad in its broad sense including the efforts exerted
for spreading Allah's word, implementing the rules of Shari`ah, calling for Islam and defending Islam
against its enemies. Therefore, jihad is not restricted to military activity.
Under this broad sense of jihad, the following are included:
a- Financing the jihad military movements which defend Muslims and protect their land as in Palestine,
Afghanistan and the Philippines.
b- Supporting the individual and collective efforts which aim at implementing the rules of Shari`ah and
opposing the plans of the Muslims' enemies.
c- Financing Da`wa centers in non-Muslim countries with the aim of spreading Islam by following the
appropriate contemporary methods. This applies to every mosque established in a non-Muslim country.
d- Financing the efforts directed to spread religious teachings among the Muslim minorities in nonMuslim countries.
---------------------------------Decrees issued by the Islamic Jurisprudence Academy in Mecca (Islamic World League)
Fourth Decree - Eighth Session

Levying and Distributing Zakah in Pakistan


In its eighth session held in Mecca, the Islamic Jurisprudence Academy discussed the question directed
by the Pakistani Embassy in Jeddah regarding the distribution of Zakh. The question deals with the
channels of Zakh and whether the meaning of the Qur'anic phrase "in the way of Allah" refers only to
Mujahidin or all sorts of charitable deeds such as public facilities, building mosques and bridges,
spreading religious teachings and preparing missionaries.
After studying the subject, it appeared that there are two interpretations of the phrase:
1. Most scholars hold that "in the way of Allah" refers to Mujahidin only.
2. Some other scholars regard this as reference to all charitable deeds such as building mosques, roads,
bridges and schools, preparing ammunition and spreading religious teachings by helping
missionaries as well as any other public interests, which may be of benefit to Muslims.

all those efforts as well which are currently being made for the Dawah of Islam and
its expansion. These participants included: (1) Janb Shams Peerzada, (2) Mauln
Sultanuddin Islahi, (3) Maulana Dr. Abdul Azeem Islhi.
Sheikh Mehroos Al-Mudarris opined that there is generalization in the
meaning of Fi Sabilillah. Sheikh Dr. Jumma also expressed the same view. But
general opinion was that in spite of the great difficulties in providing capital and
financial assistance to boost up the Dawah work these days, there is no room for
extending and generalising the meaning of Fi Sabilillah to include in it all the
religious and Dahwah efforts because there is no precedent found in the early period
of Islam in this regard. Moreover, diversion of Zakat funds towards Dawah efforts
will deprive the poor Muslims of their succour which is the main object of Zakat.
9. Stipends of the students
The average of monthly expenditure per student should be sorted out from the
overall expenditure on he boarding, lodging and education of the students and this
amount be paid to the students from the Zakat fund either in cash or through cheque.
The manager of the Madrasa can also draw this amount from Zakat fund and deposit
it in the Madrasa account, provided the student himself (in case he is major) or his
guardian (in case the student is minor) gives such authority in writing on the
admission form at the time of his admission).79
After discussing the opinions held by both parties, the Academy decided the following:
1. The second opinion is held by a number of Muslim scholars and it refers to other Qur'anic verses
such as: "Those who spend their substance in the cause of Allah, and follow not up their gifts with
reminders of their generosity or with injury, for them their reward is with their Lord; on them shall be
no fear, nor shall they grieve." It also refers to a Hadith narrated by Abu Dwud. A Companion
allocated a she-camel for riding during battles (in the way of Allah). When his wife wanted to perform
Hajj, the Messenger of Allah (peace be upon him) said to her: Use it in riding, for Hajj is also in the
way of Allah.
2. As long as the purpose of jihad is spreading Islam, preparing missionaries and spreading religious
teachings are also a means for spreading Islam and hence a sort of jihad. The Messenger of Allah
(peace be upon him) said: Fight the polytheists with your money, souls and tongues.
3. As long as atheists, Jews and Christians wage war against Islam and they are supported by money,
the Muslims must face them by using their very same weapons.
4. As long as jihad in Islamic countries has its ministry if compared with the missionary call which is
not supported by money or ministries, the Academy decides - in absolute majority - that "in the way of
Allah" includes missionary call and all its complementary deeds.
Note by Ustaaz, Ahmed Fazel
No. 4 here above means Muslim countries have military and army divisions, and associate sectors that
are supported with State finance. These Muslim governments are departing from supporting Islamic
theological education and its associated sectors. They also either minimally support Islamic missionary
work or do not support such centres that engage with the spreading of Islam.
78

Footnote by Ustdh, Ahmed Fazel Ebrahim: Military Jihd includes all forms of expenditure relating
to military personnel, equipment, arms, technological development for military use.

79

Footnote by Ustdh, Ahmed Fazel Ebrahim: The translation is unclear to me. Either the translation is
unclear in expressing the exact intent of the text or the original text is poorly written. It seems to
imply the following 1. The administration must do an average costing relating to the various

10. The status of Safeers, Muhassils and Mohtamims of Madrasah.


It is true that the amounts received by the Madris on account of alms are not
readily spent and are held over for quite a long time in many cases.80 This gives rise
to the question of non-payment of Zakat. Therefore, in the light of the answers
received in response to the questionnaire in this regard, the Seminar resolves that the
Mohtamim or his assistant (Safeer81, Mohassil) is the Wakil of the student and when
the Zakah is paid to the Mohtamim or his Nib82, the Zakah stands paid. It is the duty
of the Mohtamim83 to spend the Zakah amount on the students as per the principles
laid down by the Shariah.
11. Collection of Zakah on commission

amenities and services provided to the students. This analysis will consider lodging, education,
washing of clothing, meals, provision of text books etc. [It seems that the Seminar has included
expenditure on the building. However such a cost is to be minimal in relation to the student].
Students (who are entitled to receive Zakh) should be (if necessity demands) be provided Zakh (on
a periodic basis) from the Zakh fund (administered by the Madrasah or by any other institution) (in
order that they may take the same Zakah and pay it to the Madrasah for their education, lodging and
other expenses, and 2. The Madrasah (or its accountants) can also draw this amount from Zakh
fund (on behalf of the students) and deposit it directly in the Madrasah account, provided the student
himself (in case he is major) or his guardian (in case the student is minor) gives such authority in
writing on the admission form at the time of his admission.
Thus, the fatwa expresses that if the institutions expenses are not met with voluntary contributions
and only Zakh is available, then although the students are poor, they could still be charged an
educational fee. This fee will then be met by giving the students Zakaah so that they may use it to
pay for the fee. Alternatively, Zakaah collected on the students behalf can be directly paid to the
Madrasah. The Madrasah could then use such money for whatever needs it has without any
restriction.
80

Footnote by Ustdh, Ahmed Fazel Ebrahim: This means: When people give their Zakh to Madris
and Drul-Ulm type institutes, often it takes a while before the Zakh is disbursed to the recipients.
Therefore, can those who have given the Zakh regard their Zakh as disbursed since the Zakh has
not reached its recipients? The Seminar resolves that the Zakh will be considered paid because the
Mohtamim (Principal of the Institution) or his assistant (Safeer [ambassador] or Muhassil
[collector]) is the Wakil (Agent) of the student, thus giving the Zakh to these mentioned persons for
distribution would be considered as actually giving the Zakh to the recipient students since these
people are the agents or representatives of the students. The Seminar thus views the zakah to be
considered as discharged although it still remains in the Zakh fund of the institute.
Extrapolating the above, we can say that the Seminar acknowledges, on the basis of regarding the
institute or its agents/representatives as the Wakil (Wukal) Agent (Agents) of the ultimate recipients
that any other institution collecting Zakh would also be collecting the Zakh on behalf of the
ultimate agents. Therefore, when people grant their Zakah to any institute for distribution, their
Zakah will be considered as discharged even though the money still remains with the institute for a
long while. Thus, if Zakh money is stolen from the institution, those who have given the Zakah are
not liable to re-discharge their Zakah.

81

Footnote by Ustdh, Ahmed Fazel Ebrahim: ambassador or representative

82

Footnote by Ustdh, Ahmed Fazel Ebrahim: Deputy.

83

Footnote by Ustdh, Ahmed Fazel Ebrahim: principal.

The issue of the collection of Zakah on commission basis was put to


deliberations and it was resolved that the collection of Zakah on payment of
commission to the collector is unlawful.
12. Life and Property Insurance against communal violence.
The constant peril to the life and properties of Muslims in India under the prevailing
circumstances due to recurring communal riots and the gross negligence of the government
officials towards their prime duty of providing protection to the Muslims bordering on
encouragement and, at times, actual participation in the riots as also the lack of interest shown
by the government machinery in providing compensation for the destruction of the life and
property of the Muslims was discussed at length in the fourth Seminar held at Hyderabad. It
was decided to form a committee to go into the issue and submit its observations to be
considered at the next Seminar (See report of the Fourth Seminar). Keeping in views the fact
that The Majlis-e-Tehqiat-e-Shariah, Lucknow had taken the decision in favour of Insurance
in 1960 and also the recent fatwa issued by Darul Ifta, Darul Uloom, Deoband, the committee
gave its recommendations in favour of insurance.
Hence it was resolved: Although insurance itself is not permissible as it contains the
elements of chance, gamble and interest, however, in view of the grave and constant danger to
the life, property and business of the Muslims under the conditions prevailing in India,
Insurance of life and property is allowed against communal violence and with certain
conditions.
The following theologians and Muftis have put their signatures on this important
decision84.
84

Footnote by Ustdh, Ahmed Fazel Ebrahim: This is an example of an ijma of 50 ulama in the
region relating to the need and allowance for insurance and the severity of financial loses to the
Ummah in India during a period of Hindu-Muslim contention and riots against Muslims.
Ulam in South Africa could possibly extend this ruling to South Africa as well due to the high rate
of car theft, possibility of hijackings and murders related to house breakings or robberies. Ulam in
other countries will deal with the matter in relation to their local circumstances.
The striking feature of the above ijma (consensus) is that is formed in a period and geographical
region where no Islamic insurance companies exist. The subsequent existence of Islamic insurance
companies which prove to be stable and financially solid as well as has the capacity to service the
large population of India will terminate the permissibility of insurance with interest based
conventional insurance companies. In fact, the permission to deal with the conventional insurance
companies is limited to the period in which Islamic insurance /Takaful companies are not existing or
cannot be created. The creation of Islamic Takaful/insurance companies becomes an obligation in
this case. It does not mean that it is not a fard Kifyah for Muslims to establish Islamic insurance
companies in such a situation since, not regarding the creation of such companies as fard kifyah will
mean that people are given continual permission to engage with contemporary interest based and
non-Islamic models of insurance.
In other countries, the having an insurance contract is a legal obligation in certain types of contracts.
Thus, Muslims, purchasing homes, vehicles or certain types of assets would be compelled in such
circumstances to have an insurance contract.
Another aspect not to be forgotten is that the prophet history and lives of the Sahabah was void of a
financial insurance. We neither find the earliest generation of Muslims to have insurance on their
lives and property. Their level of Imn and compliance to the Shariah was at the highest. No
conventional insurance existed in their period and none of them ever conceived of such an idea.
Therefore, it is also imperative that we, as Muslims, develop our Imn in Allah and fulfill our
monetary obligations to others. There are, even in contemporary times, examples of Muslims who

1. Maulana Qadhi Mujahidul Islam Qasmi, Patna.


2. Maulana Mufti Habibur Rahman Khairabadi, Mufti, Deoband.
3. Maulana Mufti Nematullah, Mufti, Deoband.
4. Maulana Mufti Zafeeruddin Miftahi, Deoband
5. Maulana Mufti Burhanuddin Sambhali, Lucknow.
6. Maulana Mujeebullah Nadvi, Azamgarh.
7. Maulana Habibullah Qasmi, Jaunpur.
8. Maulana Atiq Ahmad Bastavi Qasmi, Lucknow.
9. Maulana Khalid Saifullah Rehmani, Hyderabad.
10. Maulana Abdul Rahman Qasmi, Gujurat.
11. Maulana Shams Peerzada, Bombay.
12. Maulana Zubair Ahmad Qasmi, Hyderabad.
13. Maulana Anisur Rahman Qasmi, Patna.
14. Maulana Obaidullah Asadi, Banda
15. Maulana Junaid Alam Nadvi, Patna.
16. Maulana Jamil Ahmad Naziri, Mubarakpur.
17. Maulana Sanaullah Qasmi, Vaishali.
18. Maulana Sultan Ahmad Islahi, Aligarh.
19. Maulana Dr. Abdul Azim Islahi, Aligarh.
20. Maulana Badrul Hasan Qasmi, Ministry of Aukaf, Kuwait.
21. Maulana Mufti Azizur Rehman Fatehpuri, Mumbai.
22. Maulana Rafiq Al-Mannan, Ahya-ulUloom, Mobarakpur.
23. Maulana S Mustafa Rifai Nadvi, Bangalore
24. Maulana Maazul Islam. Moradabad.
25. Maulana Abdullah Mughisi, Nazim, Meerut
26. Maulana Arshad Qasmi, Meerut.
27. Maulana Abdul Jalil Qasmi, Champaran.
28. Maulana Mufti Sadarul Hasan Nadvi, Aurangabad.
29. Maulana Abdul Rahim, Qasmi, Bhopal.
30. Maulana Tabarak Husain Nadvi, Nepal.
31. Maulana Afzalul Haq Qasmi, Gorakhpur.
32. Maulana Shamim Ahmed, Mau.
33. Maulana Sayeedul Haq Qasmi Madani, Mau.
34. Maulana Mohammad Yousuf Qasmi, Mobarakpur.
35. Maulana Sarfraz Ahmad, Jamia Mobarakpur.
36. Maulana Afzal Ahmad Qasmi, Patna.
37. Maulana Dr. Qudratullah Baqui, Mysore.
38. Maulana Abdul Qaiyyoom Palanpuri, Gujurat.
39. Maulana Abdullah Qasmi, Varanasi.
40. Maulana Abdul Rahman Qasmi, Chhapi, Gujarat.
41. Maulana Mohammad Imran Mazahir, Chhapi, Gujarat.
42. Maulana Mohammad Qamaruz Zaman, Allahabad.
43. Maulana Naseem Ahmad Qasmi, Patna.
44. Maulana Shah Badar Ahmad Mojibi, Patna.
45. Maulana Tanveer Alam Qasmi, Sita Marhi.
have this high tawakkul on Allah, comply to His orders and have all their property protected without
any form of insurance. An allowance, in case of absolute need, by the jurists in regard to
conventional insurance does not imply that it is an instruction and an obligation to have a
conventional insurance upon your property or life. Sometimes even the insurance companies go
bankrupt. Sadaqah can also be given to avert calamity. There are many Sunnah duaas (supplications)
that we could read to save us from calamity.

46. Maulana Muhammad Rashid, Deoband.


47. Maulana Iqbal Ahmad, Deoband.
48. Maulana Shoaib Islahi, Azamgarh.
49. Maulana Nazeer Ahmad Qasmi, Bara Banki.
50. Maulana Ashfaq Ahmed Qasmi.
However, three Ulema, named below, were of the view that insurance of property only is
permissible.
1. Maulana Shabbir Ahmad Qasmi, Moradabad.
2. Maulana Abdullah Phoolpuri, Sarai Meer.
8. Maulana Mufti Mohiuddin, Tarkesar, Gujurat.

SIXTH FIQH SEMINAR OOMARABAD


31 December 1993 3 January 1994
Sixth Seminar of the Islamic Fiqh Academy was held at Oomerabad (North Arcot
District, Tamil Nadu) from December 31, 1993 to January 3, 1994, hosted by the Jamia Darus-Salam, Oomerabad of which Kaka Saeed Umri was the Secretary). The participants,
comprising Ulama representing respected Seminaries and belonging to all schools of
thought, intellectuals and economic experts, from all parts of India, numbered over two
hundred. Dr. Mohammad Hanbib bin Khowjah, Secretary, Islamic Fiqh Academy, Jeddah
(Saudi Arabia) and Mufti Abdul Rahman of Bangladesh were the guest invitees.
The issues discussed at the Seminar were Ushr and Khiraj85. After detailed and
thread-bare deliberations, the Seminar arrived at the following conclusions:
Ushri Lands
1. Those lands, whose owners voluntarily embraced Islam before the conquest of
those territories by Muslims.
2. The lands in a conquered territory which have been distributed among Muslims by
the State.
3. Lands granted to Muslims by a Muslim government as Jagir.
4. All the lands in the Arabian Peninsula which have already been demarcated as such
by early jurists.
5. House-site lands converted into agricultural lands while adjoining lands are also
Ushri.
6. All such fallow lands in a Muslim country which have been made cultivable by a
Muslim, while adjoining lands are already Ushri lands.

85

Footnote by Ustdh, Ahmed Fazel Ebrahim: At the stage of typing this document, I have not made
Tahqq on this subject. I am thus not entitled to comment on most of the details or conclusions. I
would appreciate it if you kindly supplicate to Allah to grant me knowledge in this area as well.
Besides the fiqh sources of the various madhhib, and the relevant sections in the works of ahadith,
also refer to (I think the title is) Kitab-ul-Kharaj by Imam Abu Yusuf.

Following types of lands fall in the category of Khiraji lands.


1. Lands in a conquered territory which have been left in the possession of local
non-Muslims.
2. Lands of a town, the non-Muslim people whereof have made truce with the
Muslim government and have been allowed to retain possession thereof.
3. Lands of Muslims which go over into the ownership of non-Muslims and later
return to the possession of Muslims.
4. The lands granted by a Muslim government as Jagir to non-Muslims.
As a broad principle, the Shariah has placed all lands possessed by Muslims in the
category of Ushri lands and those in possession of non-Muslims as Khiraji. However,
because the ushr is a type of Ibadah (act of worship) and is, in its essence, a kind of Zakah,
as far as Muslims are concerned all their agricultural lands are, basically, to be treated as
ushri lands as abrogating ushr would tantamount to abrogation of an act of ibadah. Hence,
unless there is clear authority of Quran or Sunnah to take any land out of the category of
ushri land, the prudent course would be to classify all lands in Muslims possession as Ushri
lands.
Keeping in view these unanimous opinions on Ushri and the existing political set-up
in India, the Seminar, in respect of the status of lands in India according to Shariah, arrived at
the following.
Conclusions:
1. It is incorrect to hold that all lands in possession of Muslims in India are neither liable for
Ushr nor for Khiraj.
2. Lands in India, falling in the following categories are, as per consensus, Ushri lands.
a) Lands granted to Muslims by a Muslim government which continue to be in
possession of Muslims.
b) Lands in those regions the people whereof voluntarily embraced Islam even before
the establishment of Muslims rule there.
c) Lands in possession of Muslims since a considerably long time and there being no
historical evidence of those having ever been Khiraji lands.
d) Those cultivated or fallow lands which are given to Muslims by the Government of
India. However, in view of some, such lands will be treated as Khiraji lands.
3. There is a difference of opinion in respect of lands obtained by Muslims either from a nonMuslim Government or from a non-Muslim individual. Some of the participants of the
Seminar hold that all lands in the hands of Muslims in India, irrespective of their origin, are
ushri lands while others hold that the same must be treated as Khiriji lands.
However, it is commonly agreed that as a matter of abundant caution all lands should
be treated as subjected to Ushr.

METHOD OF PAYMENT OF KHIRAJ AND ADJUSTING IT AGAINST THE


GOVERNMENT REVENUE86
1. Some participants of the Seminar hold the view that the obligation to pay Khiraj terminates
after paying the land revenue (Cess) to the Government.
Some others are of the opinion that Khiraj is, in any event, obligatory on all Khiraji
lands in India. They hold that payment of land revenue to the Govt. does not absolve the landowner from the obligation of Khiraj, and it is incumbent on a Muslim land-owner to separate
the due quantum from the total product and give it on the prescribed heads of Khiraj.
Still others opine that the land revenue paid should be adjusted against the due Khiraj and the
balance be spent as Khiraj.87
2. On the question whether Khiraj-e-Muqasima will be due on Khiriji lands in India, or the
Khiraj-e-muazzaf, some participants of the Seminar, for the sake of convenience, favour the
Khiraj-e-Muqasima on all Khiraji lands.
But those participants who are inclined towards holding Khiraj as obligation in all
events, hold that on all such lands in respect of which it is historically established that after
their conquest by Muslims, Khiraj-e-Muqasima was levied (as in Gujarat and Rajputana),
Khiraj-e-Muqasima will have to be paid, and the quantum would be the same as was initially
levied. In respect of all other Khiraji lands, Khiraj-e-Muazzaf will be leviable.
3. Those favouring Khiraj as obligatory in all cases, make tanzeef-e-Umri as the basis and
thereby fix one (silver) dirham in cash per jareeb (i.e. equal to 3 masha of silver, or its value)
and one sa (Three kilograms and 325 grams) of the product on Khiraji lands producing usual
crops like grains and cotton.
On vegetable-growing lands, they fix 5 silver dirhams (or its equivalent currency in
use) per jareeb, 10 silver dirhams or its equivalent in cash, per jareeb, on lands adjoining the
grape or date groves.
ON PRODUCE OF USHRI LANDS, TREES AND KHAZRAWAT
Like Zakah, payment of ushr is also a religious obligation which relates to produce
from lands. The Holy Quran has enjoined upon Muslims to pay Zakah out of their clean,
lawful earning and to pay ushr out of the produce one obtains from the lands (O you who
believe, spend out of your clean and lawful earning and out of what you get from the lands
2:26)
On whether Ushr is due on all the produce of lands or some produce are exempted,
after studying the general instructions found in the Quran and Hadith in the matter and
considering the papers presented and views put forth by the participants, the committee
arrived at the following
CONCLUSIONS:
1. That Ushr will be leviable on every produce, including grass and trees, which is grown for
the purpose of trade and for developing the land. Hence all grains, fruits and flowers grown

86

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the Al-Azhar fatwa in addendum no. 10

87

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to footnote No. 81 where the Al-Azhar fatwa
expresses that Zakah is not due on Kharaj lands in terms of the Hanafiyyah.

on a land are liable for ushr.88 However, the self-grown (wild) grass and trees, not grown
with the intention of trade, will be exempted from the liability of ushr.
2. Such non-fruit bearing trees, the timber of which is used as fuel or for making furniture or
used in the construction of houses, like Sanoobar, Sheesham, Saqwan, Sakku etc. for the
growing of which an ushri land is set apart and are meant for trade, will be liable for Ushr,
either in kind or cash, at the time of their being put to such a use, howsoever long it may take.
3. Vegetable grown for trade in an Ushri land. However, vegetables grown in the courtyard
or in fallow adjoining lands or on the roofs of houses are exempt from liability of ushr.
Ushr on lands under tenancy
1. In case the landlord and tenant both are Muslims, both will be liable to pay ushr on the
produce coming to their respective shares.
2. In case the landlord is a Muslim and the tenant a non-Muslim, the Muslim landlord will
have to pay ushr on the total produce falling to his share.
Deduction of expenses for determining the Nisaab.
Footnote by Ustdh, Ahmed Fazel: Refer to the following Fatwa from Al-Azhar

88


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1. The extra expenses incurred through employing modern means like the use of fertilizers
and insecticides etc. should not be deducted from the (cost of) total produce obtained.89
2. According to Imam Abu Hanifa and some other Muslim jurists, considering the generality
of certain yaat (verses) of the Quran and some Traditions of the Prophet, there is no nisab
(exemption limit) for payment of ushr on agricultural produce.90 Ushr will be payable on
89

Footnote by Ustdh, Ahmed Fazel: Refer to the following

(Sixth Albaraka Seminar, Fatwa No. 15)


Zakah
1. Zakah on Agricultural Produce
Question:
Albaraka is working on a number of agricultural investment projects, and is spending large
amounts of money on reclamation of soil for cultivation and betterment of its produce. On
what basis then, are these expenses to be decided? And is Zakah to be paid on these
projects in the light of the original principle of the ('ushr') or half-tithe (one twentieth)
depending on the condition of irrigation?
Fatwa:
After thorough discussion it appeared that in this regard there are three opinions.
First, deduct all expenses and then take out tithe or half-tithe (i.e., one tenth or even
twentieth) from the remainder.
Second, not to deduct expenses and pay a tithe as Zakah on rainfall cultivation and a halftithe on irrigation cultivation.
Third, take out one third of produce and then pay Zakah on the remaining produce
according to the condition of irrigation.
The participants concluded in favor of deducting expenses before taking out Zakah provided
that such deduction should not exceed one third, and then calculate Zakah by taking out
'ushr' for a land irrigated by rain, and half 'ushar' for that irrigated artificially.

Furthermore, the Al-Azhar fatwa in footnote No. 81 reflects that deduction of expenses is not
allowed by the Hanafi scholars.
90

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the hadith in Kitab uz Zakh, Sahih Muslim
where Nabi S.A.W. said : Ushr (plural of Ushr) will be obligatory on (crops) (naturally) watered
by rivers and clouds, and half of 1/10 is obligatory on (crops) watered by camels (this can be
extended to irrigation schemes as well Ahmed Fazel).
In terms of the following fatwa 778 from Al-Azhar, the Hanafi view neither stiputes Nisb, nor
regards the passing of a Islamic lunar year as a condition for the obligation of the Ushr (or 1/20
depending on format of irrigation) . Thus, in terms of the Hanafiyyah, the Ushr (or 1/20 depending
on format of irrigation) will be due after each harvesting of any crop. The daleel for payment after
each harvesting of any crop is in the Quranic verse (Surah Anaam 141) Aatoo haqqahu yauma
hasaadih.
A fatwa from Al-Azhar, Cairo, Egypt
. :
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. ( 778 )
. 1967 19
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everything produced from the land irrespective of its quantity. However, Imam Ab Ysuf,
Imm Mohammad and a majority of other jurists, relying on a Prophets reported saying, hold
that there will be no liability of paying ushr if the total produce is less than 5 (five) wasqs.91

1 .
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Footnote by Ustdh, Ahmed Fazel Ebrahim: I would prefer the acceptance of this view for the
purpose of issuing a fatwa since the hadith stating that no obligation of Ushr relates to that which is
less than 5 wisq/wasaq is making an exclusion istisna from the m (general implications) of the
Quranic verse regarding the amount of the Sadaqah and from other hadith which obligate the
payment of ushr on a general basis upon crop that is irrigated by rains or natural streams. We learn
from this ruling, provided the strengths of the ahadith relating to an issue are of equal or equivalent
nature, that exclusions istisna can be made from the general implications in some of the ahadith
through the exclusions given in other ahadith. We infer that this Asl (principle) of hadith is the
adoption of Imam and Qadhi Abu Yusuf (R.A.) and Imam Muhammad (R.A.).
If someone claimed, whether erroneously or correctly, that these two Imams did not know the hadith
which generally obligated the payment of ushr, therefore to claim istisna an exclusion, in this case,
from the general ruling on ushr in other ahadith, and adopting it as a principle of hadith is wrong,
then refutation to their argument is given in the Quran. This is because it is impossible for them to be

91

The Seminar is also of the view that placing the liability of ushr in all cases will be hard on
small land-owners or in case of the crop getting damaged because of some natural calamity.
Therefore following the view propounded by Imam Abu Yusuf and Imam Mohammad
(Shibain) and other jurists, it is held that in case the produce be less than 5 (five) wasqs92 i.e.
less than six quintals and 53 kilograms93), it will be permissible for the land-owner to himself
ignorant in regard to the Quranic verse relative to the payment of the right Ushr or 1/20 of the
crops on the day of harvest. Therefore, if an additional clause to the Quranic verse was also made
through ahadith in regard to the method of irrigation as a determination of the quantity ushr or 1/20
then istisna can also be made through an authentic Sahih hadith that excludes a given amount of 5
Ausuq from the general harvest.
However, in the case of Imam Abu Hanifa (R.A.), it is possible that someone claims that he did not
know the hadith that provides the exclusion of the 5 Ausuq. If we find that Imam Abu Hanifah had
never made an exclusion, through hadith, from the general ruling of the Quran, then we could say
that Imam Abu Hanifah does not allow exclusions through hadith when the Aayaat of the Quran are
general. In such a case, we cannot claim that Imam Abu Hanifa was unaware of this hadith. Also, the
fact that he was in Iraq and born in the era of the Tabieen makes it impossible for him to have been
ignorant of this hadith.
I have not reviewed the other major works of Hanafi fiqh, I am sure that more clarity in this matter
can be obtained from the Mabst of Sarakhsi and other works of scholars like Imam Tahawi etc.
92

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the first hadith in Kitab uz Zakh, Sahih
Muslim

93

Footnote by Ustdh, Ahmed Fazel Ebrahim:


The following is in the footnotes to the hadith in Sahih Muslim A Wasq (or wisaq) is 60 (sixty)
saaah. Each saaah is 5 + 1/3 (five and one third) of the Baghdad Ratl. Scholars differed on the
Baghdad Ratl. The most famous of which is that it is 128 + 4/7 dirhams (one hundred and twenty
eight and four over seven dirhams). It is also that it is only 128 dirhams (one hundred and twenty
eight dirhams). It is also said that it is one hundred and thirty. Thus the five Awsuq is one thousand
and six hundred Baghdad Ratls. The most authentic view is that this weight in Artaal (plural of Ratl)
is an approximation. The print is with the Tahqq of Muhammed Fuad Abdul Baqi and the
supervision of Dr. Mustafa Zahabi, volume 2, page 100, Darul Hadith, Cairo.
If we take 128 + 4/7 = 128.57142857142857142857142857143 dirhams
Now 128.57142857142857142857142857143 dirhams x (one dirham = 3,086419753 grams)
We get 396.8253968142857142857 per Baghdad Ratl
396.8253968142857142857 per Baghdad Ratl X 5.33333333 = 2 kg and 116,402 grams [per
wasaq]
The Al-Azhar fatwa by Sheikh Atiyyah Saqar gives us a result of 2148,148148088 grams
Mufti Shafi, the late Grand Mufti of Pakistan, quotes the Baghdad ratl to be 398.034 grams. See his
Auzaan-e-Sharaih page 49, Published by Idaratul Maarif, Karachi, Pakistan. Multiplying 398.034
grams to 1600 (figure given here above), we get 636 kg and 854 grams to be five Ausuq (plural of
wasaq/wisq). This is about 10 kg less than the result from the following Al-Azhar fatwa. Although
any of these two calculations could be followed, for the purpose of safety, it is preferable to adopt the
lower calculation.
The calculations of scholars from the East of Arabia has thus not been a far mark away from the
scholars of the west of Arabia. Maybe, others would say, The calculations of scholars from the West
of Arabia has thus not been a far mark away from the scholars of the East of Arabia.
In another hadith in Sahh Muslim, Kitb uz Zakh, Ab Sad Al-Khudri says Nabi S.A.W. said :
There is no Sadaqah (Zakh) on less than five Awsuq of dates or grain.
Refer to the following fatwa from Al-Azhar

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130 174 696.
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324 696 324
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Notes by Ahmed Fazel


In terms of the above, 324 dirhams make a kilogram, and 696 dirhams make a Sa, thus
(one thousand) grams divided by 324 dirhams gives us (one dirham = 3,086419753
)grams

1000

Thus, 696 dirhams x 3,086419753 grams = 2148,148148088 grams = 2kg and one hundred and
forty eight grams and 14 decigrams.
There seems to be a calculation error in the above fatwa since the additional 100 grams is not
accounted for. Unless the figure 1 was mistakenly deleted or not typed. However, the conclusion
and final measure for five wisq/wasaq is correctly approximated to 645kg.
If one wisq = 60 Sa, then 60 x 2148,148148088 grams = 128888,8888 grams = 128kg
(kilograms) + 888,88 grams
Therefore 5 Ausuq (plural of wisq) x 128888,88 grams = 644444,4 grams = 644kg and 444 grams
Since this is equal to 50 Egyptian Kailah, one Egyptian Kailah = 12kg and 888,888 grams.
Since 4 Araadeeb and two Kailahs = 50 Egyptian Kailah, thus 4 Araadeeb = 48 Egyptian Kailahs.
Therefore one Irdeeb = 12 Egyptian Kailahs = 154kg and 666,656 grams.
Also, the nisaab in the hadith is expressed as 5 Awaaq (plural of Auqiyah). Each Auqiyah is 40
dirhams. Thus 5 Awaaq x 40 dirhams x 3,086419753 grams = 617,284 grams.
The above fatwa gives 20 Mithqals to be approximately = 85 grams and that according to another
calculation it is 87 grams.

consume the entire produce without paying the ushr (one-tenth). Some participants, however,
expressed the view that this may be acceptable only if the produce is less than nisb and the
person concerned has no other means of sustenance.
Ushr on Fish, Makhana, Silk, etc.
1. Things cultivated within water e.g. Makhana, singhada (water chestnut) etc are akin to land
produce as they cause Istighll-e-ard, hence these are liable for Ushr.94
2. Fish-breeding done for commercial purposes95 does not fall in the category of land produce
but comes under the classification of commercial commodity. Thereafter, these will not be
liable for ushr but Zakah will be payable on the same.
3. In case shehtoot (Mulberry) is grown on an ushri land for the purpose of extracting silk
therewith and the Mulberry leaves are used as food for the silkworms, it is held that ushr will
be liable on such Mulberry leaves.96 Some participants are, however, of the view that such
Mulberry leaves will not be liable for Ushr but Zakah will be levied on the silk obtained
therefrom, like in the case of other commodities liable for zakah.97

The fatwa further says: In these small differences, it is best to adopt the safest calculation so that
people feel content about discharging their obligations.
The Hans Wehr Arabic-English Dictionary, edited by J.M. Cowan states (kaila pl. t kilah), a
dry measure (Egypt =16.72 litres; Palestine = 36 litres)
I recently found the following advert in an e-mail:
Genuine original silver Dirham - over 1200 years old. Period of Abbasid Caliph Al-Amin 194
A.H. Minted in Samaqand. Approx 3g of silver. For Sale R280 Also available: Silver Dirham from
Ummayid Period of Caliph Hisham Minted in Wasit 121 A.H. Price: R350 Location: Durban
South Africa Call 0846836358 After 2pm. This proves that the above calculation of the dirhams
weight is fairly accurate.
94

Where these forms of crop or trees are irrigated through human or mechanical means, then half of the
ushr will be liable in terms of the hadith in footnote 78.

95

Footnote by Ustdh, Ahmed Fazel Ebrahim: There are various new techniques relating to fish
breeding. Some people employ external tanks to breed fish while others use the natural rivers and
streams and dams. Lately, I think in Japan, tuna are also bred on land tanks and in laboratories but
are then allowed to grow in the sea within huge net enclosures. I saw a documentary on South
African DSTV in this regard. The various diverse methodologies employed for fish breeding still
does not classify fish to be liable for ushr since fish, despite its proximity to land, and living on
water that flows upon land, is not a natural product of the sand and ground.

96

Footnote by Ustdh, Ahmed Fazel Ebrahim: In case where a person regularly sells mulberry leaves
to others who use silkworms to produce silk, then we can say that the seller will pay ushr on the
value of sold leaves, and not on the amount of leaves on the trees since the leaves do not necessarily
form a commodity that will be sold. It is possible that in some cases, such leaves represent a form of
a crop that is regularly sold. Thus, ushr becomes obligatory on it. We need to study the silk
producing industry to clarify this matter.

97

Footnote by Ustdh, Ahmed Fazel Ebrahim: This is a good view, since a person who deals with
producing silk is not trading with the mulberry leaves. The latter is allowed growth to feed the
worms to produce silk. He is ultimately charged on Zakaah on his total assets that would also
comprise of assets earned from selling silk, or include a stock of raw or treated silk. To thus charge
him Zakaah on both the silk produced as well as on the leaves would be a form of double taxation.
Thus, obligating him to discharge Zakh on the ultimate produce of silk only is fair to the Zakah

Ushr on the Fruits and vegetables grown in courtyard, roof-tops, adjoining lands and on
Waqf lands.
1. As the liability to pay Ushr accrues only when a land is in itself an Ushri land, and the
land on which a house stands is neither an Ushri nor Khiraji land, hence the vegetables and
fruits etc. grown in the courtyard, on roof-tops or on the fallow land surrounding the houses,
will not be liable for Ushr.
2. As, for the liability to pay Ushr, it is not necessary that a person should actually own the
land; Ushr becomes liable on the produce of the land even if not in the ownership of one.
Further, Ushr is levied on the produce and not on the land as such. Therefore, the produce of
a waqf land, be it a general waqf or waqf-alal-auld, will be liable for Ushr.98
Islamic Banking and Shares
1. As per orders of the Reserve Bank, all financial institutions and Banks are compulsorily
required to invest 5% (five percent) of their total capital in interest-bearing government
bonds/securities. Therefore, it would be proper to allow the interest thus accrued to be
accumulated and proportionately withdraw the amount invested in interest-bearing
bond/securities making the accrued interest to gradually replace the deposited capital.99
2. An Islamic financial institution or Muslims in general can purchase equity shares of
companies which do purely Hall business.
3. Investing in shares of such companies as undertake solely harm business is totally
impermissible.
payer. Where the silk producer also sells mulberry leaves to others, then ushr can be made
obligatory on him to the extent of his sales of the leaves, and also on the available stock of leaves for
sale.
However, it is not far fetched to place the Ushr obligation on the leaves which are not for sale, on the
silk stock and on the silk worms since each of these form separate assets just like a stock of cattle
feed which is a separate asset from the cattle. Therefore a milk producer will pay Zakaah on his stock
of cattle feed, on the cattle and on the remaining balance of the income earned through milk sales.
98

Footnote by Ustdh, Ahmed Fazel Ebrahim: The obligation of ushr on land designated as waqf
seems to be an inference of some jurists. I do not think that all the ulama from all other schools
agree on this. Nevertheless, I need to research this area.

99

Footnote by Ustdh, Ahmed Fazel Ebrahim: Different countries would have different requirements
or diverse percentages of deposit of capital into central or reserve banks. The reason of
proportionately allocating interest earned into such an account is so that Hall money which is used
by such statutory and banking requirements is slowly brought back into the Hall investment sector
and is not held up into a given account where no halaal resources are earned. In fact, shareholders
and people having accounts with the bank could be asked to voluntarily contribute any interest
money they have towards such accounts or investments which form part of the legal banking
requirements but which violate the rules of the Shariah. This will allow a faster replacement of the
hall capital that is held into such accounts.
In fact, in some countries, even funds of particular categories that are invested, require to have an
extent of the capital of such defined funds to be invested in Harm-sectors. The same principle can
be extended here. Interest earned in such a sector could be allocated towards the required legal
percentages that need to be invested in non-Shariah compliant sectors.

4. As regards various other issues concerning banking and shares put up in the Seminar, the
Seminar directs the Islamic Fiqh Academy of India to call a special meeting of the Ulama and
experts to go through in detail over all such issues and arrive at a final conclusion.
SEVENTH FIQH SEMINAR BHARUCH INDIA
Dec. 30, 1994 Jan. 2, 1995
The extent100 of Islamic Shariah is not restricted to a certain age, country or people
but it remains obligatory on all the Muslims to observe it till the Doomsday. The Islamic
Shariah is binding and obligatory as on Muslims who live in countries governed by nonMuslims as it is on those who are governed by Muslims.
The extent of governments governance today has not remained restricted to only a
few areas as it has assumed as its right to make laws, plan and oversee all aspects of human
life. Millions of Muslims living in the system and atmosphere raised on western non-Islamic
style (especially those who live in non-Muslim countries) are in a cute101 suffocation and
construction102 as the observance of Islamic limits have been rendered more difficult for them
due to governmental legislation. If they give up observance of Islamic Ahkam, their heart
censures them, and the fear of accounting and hence torments in the Hereafter keep on
agonising them. If, on the other hand, they strictly abide by those Islamic ahkam they are put
to severe construction103 and restriction. Contemporary laws restrict and compel them to
withdraw from many areas of life.
Under104 such circumstances it is badly needed to identify those basic guidelines in
the light of the principles105 of Raful-Harj (Elimination of constriction), Dafud-Dharar

100

Footnote by Ustdh,, Ahmed Fazel Ebrahim: Perhaps the translator meant application.

101

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the translator meant acute.

102

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the translator meant constriction.

103

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the translator meant constriction.

104

Footnote by Ustdh,, Ahmed Fazel Ebrahim:

The translation is better expressed as


Under such circumstances it is extremely essential to identify those basic guidelines in relation to the
following concepts within the principles of Islamic Jurisprudence: Raful-Harj (Elimination of
constriction), Darud-Dharar (Removal of harm),104 Dharrah (need) and Idhtirr
(compulsion). Ulama and scholars engaged with Ifta (Islamic Juridical verdicts) may use these
concepts to make decisions on problems relating to all-prevailing tribulations and contemporary
needs of people so that the Ummah can be relieved of certain severe religious restrictions where
there exist any possibility of alternate juridical opinions that allow for some degree of laxity. The
Shariah permanently aims to provide Muslims with ease and facilitates certain amenities through a
review of precepts within the body of its law. The serious and persisting danger posed by the
unrestricted use of the principle relating to the demands of Life and Dharrah needs to be prevented
through crystallised and structured definitions of the extent of laxity that the Shariah allows in
relation to such demands.
105

Footnote by Ustdh,, Ahmed Fazel Ebrahim: For a better and thorough understanding of all these
principles and the various differences expressed by the Fuqaha in relation to the definitions of these

(Removal of harm),106 Dharoorah (need)107 and Idhtirr (compulsion), on which grounds,


ulama and people of Ifta may make proper decisions on problems of all-prevading108
tribulation and need in the present age so that the Ummah can be relieved of acute restriction
and countruction109 where there exist any possibility and permanently in the Shariah Muslims
are provided with ease and amenity, within the precepts of the Shariah and the serious danger
of persist year posed by unrestricted use of the principle of Hayat110 and Dharoorah are
nmytslised111
Resolution No. 1.112
Basically there are five Masalah113 (exigencies)114 whose achievement is the object of the
Islamic Laws: (a) Religion115 (b) Life (including chastity and honour) protection of intellect,
principles refer to the works of Usul ul-Fiqh. Furthermore, this section is also related to the adoption
of other principles of jurisprudence like istihsan and Maslih-ul-Mursalah.
106

Footnote by Ustdh,, Ahmed Fazel Ebrahim: It is better translated as Prevention of harm

107

Footnote by Ustdh, Ahmed Fazel Ebrahim: It is better translated as Absolute necessity.

108

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the word is prevailing. Maybe the translator
intended all-pervading.

109

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the translator meant constriction.

110

Footnote by Ustdh, Ahmed Fazel Ebrahim: Im sure the word is hjah (need).

111

Footnote by Ustdh, Ahmed Fazel Ebrahim:I do not know what the intended word is.

112

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113

Footnote by Ustdh, Ahmed Fazel Ebrahim: The translator ought to have said Maslih.

114

Footnote by Ustdh, Ahmed Fazel Ebrahim: The translation of Maslih in this context is
ultimate benefits and interests.

115

Footnote by Ustdh, Ahmed Fazel Ebrahim: Preservation and protection of Islam as an entity as
well as a religious identity of people.

wealth and race116. The thing which is so imperative that its want causes strong presumption,
rather surety117, of the loss of these expediencies is called necessity.118 Necessity is a
permanent terminology for the jurists and it includes want as well as.119 However,
comparatively to want to term necessity contains vast and general connotations.120
2. Want is a stage in which man indulges to achieve the above noted five experiences and in
doing so falls prey to such toil and harm from which Shariah aims to protect.121
3. Want and necessity both are basically related to toil and labour. To a certain degree, toil is
deligatory in all Shariah execepts and it can not be used in any chage of the precepts.
Sometimes the toil becomes so rigorous that if no leniency is made it surely causes grave
harm. This stage is called necessity. 122 Sometimes the toil is of comparatively less severity

116

Footnote by Ustdh, Ahmed Fazel Ebrahim: This refers to protection of the marital relations
allowed by Islam for the continuation of the human race. Thus, surrogate motherhood, cloning and
marital relations with prohibited categories of people is intended to protect the family unit and the
family structure. The latter is necessary for kinship, brotherhood and other reasons.

117

Footnote by Ustdh, Ahmed Fazel Ebrahim: It is better translated as certainty.

118

Footnote by Ustdh, Ahmed Fazel Ebrahim: The translator is trying to define necessity. I do not
have the original text but would define it as follows A necessity, is such a thing or practise that has
become so imperative because its absence causes a strong presumption, or rather a definite certainty,
of the loss of one or more of these ultimate benefits and interests.

119

Footnote by Ustdh, Ahmed Fazel Ebrahim: Dharrah (Necessity) is an established concept


within the terminology relative to the Theories of Islamic jurisprudence, and is used by jurists to
describe exceptional Shariah allowances in matters of dire and essential needs. However, these
allowances related to matters that are normally prohibited in the Shariah. Although a need is
something that is also included within the purview of the variety of wants, all wants are not
needs. Also, in terms of the Shariah, a need is also restricted to that which is essential for the
basic necessities of life.

120

Footnote by Ustdh, Ahmed Fazel Ebrahim: However, comparatively to a want which entails a
general and unlimited amount of issues, desires and objects of diverse types and natures, the term
Dharrah (Necessity) is rather limited and specific to given situations and circumstances where
the Shariah would admit to the dire need of applying an exemption from a Shariah instruction or
prohibition in order to fulfil an absolute material essentiality or religious requirement. From a study
of the details relating to the English translation of the Seminars resolutions, I conclude that the
translator uses the word wants for needs.

121

Footnote by Ustdh, Ahmed Fazel Ebrahim: I do not have the original text from where the translator
had translated, so I cannot claim to accurately reflect the text and sense of the original script.
Nevertheless, I would define wants as Wants are the objects of desire and the issues in which a
person indulges to achieve the above noted five ultimate benefits and interests and/or those objects
of desire and issues that also extend beyond the actual and true needs of a person at a level associated
to the individual person. The Shariah aims to protect people from unnecessary toil and harm that is
resultant from the persons violation of his/her overstepping their personal and relative limitations in
relation to the fulfilment of the various forms of wants.
It is possible that the translator might have used the word want to describe another concept all
together. In such a case, my explanation will not apply. From details in the English translation, I
conclude that the translator uses wants for needs. In such a case the text could have validly read
as Needs are issues in which man indulges to achieve the above noted five experiences. However, in
doing so, people fall prey to various forms of toil and harm. The Shariah aims to protect people
from some forms of these toils and desires to protect people from the harms associated therewith.

122

Footnote by Ustdh, Ahmed Fazel Ebrahim:

but in comparison to the toil made deligatoryly Shariah for the human beings it is of extra
ordinary nature. This state is want. Hence the basic difference in the variety of Want
and necessity is only the fluctuation of labour.123

I do not have the original text from where the translator had translated, so I cannot claim to
accurately reflect the text and sense of the original script. Nevertheless, I would attempt, due to the
extremely poor expressions in the above paragraph, to give some details relative to a
differentiation between wants and needs. However, these details are strictly my personal
inclusions and do not represent a translation or explanation of the original text of the resolution
Both anything that is wanted or any necessity is basically related to some degree of toil and
labour. Sometimes, these wants and necessities are achieved without any degree of direct labour
but are created or achieved indirectly through the labour and efforts of others. All Shariah
instructions entail toil to a certain degree since an effort is fundamentally related to every act done.
Thus, every act of worship demands some extent of effort. Immaterial of the degree of toil
required, in some cases, to fulfil a Shariah instruction, the severity of such a toil in any situation
cannot be an excuse to alter or change any of the orders of Islam. Fasting on an extremely hot day
during a period of heat waves will not terminate the obligation of fasting although it may allow
people who absolutely cannot bear to continue their fasts to break their fasts on those specifically
severe days. Such persons will then have to keep the fasts that they missed. The latter reflects an
example expressed in Sometimes the toil becomes so rigorous that if no leniency is allowed, it
surely would cause grave harm. Thus, preventing people who cannot bear to continue their fasts
or keep their fasts during a heat wave may lead to death. This would be a grave harm.
The specific circumstance/s within the period of implementing a Shariah obligation, or which
exists at the inception of applying a Shariah rule, which prevents the continued application of the
basic Shariah regulation due to circumstances that justify an alternative course of action is also
termed as a Dharrah (necessity) that exempts the person/or people from that rule, and allows
them to apply, if necessary, an alternative that is normally prohibited in the Shariah. Pelting the
jamart during pilgrimage is extremely difficult and severe for elderly pilgrims during the boiling
hot days, yet it is absolutely essential that this rite of the pilgrimage is fulfilled. Dharrah
(necessity), in such a context, relates to the allowance given by the jurists relating to further or
wider times for pelting due to the extra-ordinary large crowds.
It is possible that some jurists termed a Shariah exemption on matters relating to Ibadah as an
exemption due to Dharrah, while allowances in matters of material need were considered as
allowances due to Hjah need. Others might have use there terms interchangeably.
123

Footnote by Ustdh, Ahmed Fazel Ebrahim: I cannot fathom what the translator is trying to express
in the last few sentences. There are also too many typing errors. Recourse to the original text of the
resolutions will enable us to resolve the misunderstanding created through the translation.
If we replace the words reading as want in the following text with the word need then the
following ambiguous statement can be interpreted The translation reads as
(Sometimes the toil is of comparatively less severity but in comparison to the toil made
deligatoryly Shariah for the human beings it is of extra ordinary nature. This state is want.
Hence the basic difference in the variety of Want and necessity is only the fluctuation of
labour)
I interpret the above to mean: When humans engage in their desires and own material occupations,
they have needs (which are not classified as Necessity Dharrah in the Shariah since the needs
are material and not directly related to the fulfilment of the five primary benefits and interests of
people). Thus, when a person works hard in a mining company or engineering project, his task and
occupational functions could be less severe in comparison to other workers at the mine. Despite,
being less severe in comparison to the work done by other workers, his toils and efforts remain to
be classified to be of an extra-ordinary nature because of the strain and efforts involved. Such
duties are often far more severe than the toils demanded in the application of the orders of the
Shariah. Hence, a need is relative to strict material necessities that are unrelated to the discharge

4. The jurists have differentiated in the orders of want and necessity as well, which, in short,
is that under Necessity, there can be room for exemption from such definite and
categorical orders which are irrevocably prohibited.124 But if want is not of a prohibitive
nature, it can have the room of exemption only in such orders which are not required to be
prohibited by themselves dout for the remedy and prohabation of another forbidden
things.125
5. In case the want is of general nature and people are in general exposed to in it, such want
comes in the category of necessity and causes exception and singularity in the categorical
orders.126
of religious obligations, but a Dharrah is the application of a Shariah allowance or exemption
to engage or use specific issues under circumstances that justify the adoption of such an allowance
in matters which are normally prohibited. The latter distinction may be in terms of the Hanafi
mazhab, but would not necessarily be a distinction in terms of the usul of other mazhib.
124

Footnote by Ustdh, Ahmed Fazel Ebrahim: This means Certain orders of the Shariah express a
definite prohibition that eternally applies. Such a prohibition cannot be revoked by any human being
at any point of time. The prohibition of eating pork is such an example since it is categorically
prohibited in the Quran.
The rule of absolute Necessity will allow room for religious exemption from such a definite and
categorical order that is irrevocably prohibited. Thus, if no other Halaal food was available, and there
was no halaal meat, nor vegetables, nor anything else to survive upon, then pork would be allowed
for consumption to the extent of necessity. Thus, we find that the jurists have differentiated the rules
pertaining to necessity from others that pertain to wants or from those that relate to needs.

125

Footnote by Ustdh, Ahmed Fazel Ebrahim: The translator has messed up the interpretation of the
resolution. The statement makes no sense. This translation of the resolutions seems to have had no
editor. Such incomprehensible statements of a serious resolution issued by the Islamic Fiqh Academy
is reflective of the poor level at which the Shariah and its texts are treated by some institutions.
Sometimes, the institution did its best in terms of the available expertise. Thus, I appreciate the
translation despite its flaws since it, at least, allow us to gain some knowledge about the contents of
the resolution or discussions at the Seminar.
Nevertheless, after adopting the word need for the translators use of the word want, I interpret
the meaning of the text to be Wants are either of a prohibitive nature or of a permitted nature.
However, needs, in Islam, must be of a permitted nature. Thus, the need for a home and purchasing
it is essentially permitted in Islam. However, this need is prohibited if the purchase is with stolen
money or is done, without Dharrah, through interest financing. Thus, a permissible need could be
prohibited due to the prohibition of other matters which would be associated to the fulfillment of the
Islamically permissible material need.

126

Footnote by Ustdh, Ahmed Fazel Ebrahim: This means In case the need is of general nature
and people are, in general, exposed to it, then such a need comes in the category of Dharrah
(absolute necessity), and the allowance thus given which gives laxity from a religious prohibition is
an exception to the general religious rule/order that is categorically stated in the Quran, or hadith (or
is inferred there from). However, such an allowance may be limited to a given geographical
boundary and a given era. If I am not mistaken, soaps produced with pig fat as an ingredient was
allowed by jurists of a certain geographic area in a particular period of time. (I do not have the source
of this ruling). Soap is something that is used by everyone.
Centuries later, a South African Islamic newspaper The Majlis published by a Port Elizabeth
Muslim organization published a view in the Question-Answer section of its paper which stated
that since the early jurists allowed the use of Haraam fat in the soap, thus any contemporary soap
produced in this way in any part of the world is allowed. The flaw in such a conclusion is that the
original ruling was limited to a given geographic area and period in history. We now have other
chemical technologies that allow the production of soap without the use of soap having pig fat as an

6. Toil is the foundation of want and necessity. Toil is a supplementary thing. Therefore, there
can be differences in the determination of want and necessity in view of the place, area,
prevalufisitation, the peoples capacity of endurance and also taking account of the
countries where Muslims are in minority. Therefore, while determining want and necessity
the countries like India where the Muslims are not in a position of playing effective role in
legislation, this angle should also be taken into account.127
7. Determination about something whether it has the status of want128 or necessity under
prevailing circumstances requires deep insight, careful screening and detailed
contemplation. Therefore it is the duty of jurists and theologians in every age to determine
the category of want129 and necessity which can commente130 the orders, keeping in view
the condition of that age. It is also very necessary that such delicate and important decisions

ingredient. Thus, the previous allowance ended at a given period. Also, Muslims of any country,
which has the ability to import soap that is not produced with Haraam ingredients, would not be
allowed the use of soap produced with Haraam ingredients.
127

Footnote by Ustdh, Ahmed Fazel Ebrahim: I would redraft the above with Toil is the
foundation of any need and necessity. Toil is related to the creation of any thing. The degree of
toil differs in relation to the product created or the physical act that is done. Thus, toil is needed in
the creation of a pen, but does not form part of the pen. Toil is thus a supplementary issue to the
creation of any material product. However, in the case of physical exercise or doing an act, toil is
also created and exerted to produce the physical act. In such a case, toil is not a permanent
expression of the human body. Rather, it is exerted by the human body, to extents possible for
individuals, as a result of the human intent to do any given act. There are differences in the
determination of need and necessity in view of the place, area, privatization of industry, the peoples
capacity of enduring the suffering relative to an issue or need. Consideration needs to be expressed
regarding countries where Muslims are in a minority. Therefore, while determining the possibility of
religious allowance, due to Dharrah (absolute necessity), we must also consider political factors
that can effectively govern and limit certain matters. Thus, countries like India where Muslims are
not in a position of playing effective role in legislation, would limit Muslim freedom in terms of the
application of Islamic criminal law or issues in Islamic commercial and personal law. This may
demand, in certain matters that Muslims are faced with a legislation that prohibits them from
compliance to an Islamic rule. Thus, such political and legislational or other angles should also be
taken into account when evaluating whether an Islamic allowance is given in a specific matter on the
basis of the concept and principle of Dharrah.
I do not know what is intended by the incorrectly spelled word prevalufisitation that is used here
above. The typist used by the publishers is also responsible for the errors on this document since any
clever typist would have discerned the inaccuracies and advise the translator to make the necessary
changes and rectifications. I assume that it might refer to privatization.

128

Footnote by Ustdh, Ahmed Fazel Ebrahim: Replace the word want with need in order to make
sense of the text in terms of previous footnotes given.

129

Footnote by Ustdh, Ahmed Fazel Ebrahim: Replace the word want with need in order to make
sense of the text in terms of previous footnotes given.

130

Footnote by Ustdh, Ahmed Fazel Ebrahim: He means : Therefore it is the duty of jurists and
theologians in every era to determine the categories of need and religious allowance due to
absolute necessity since the latter principle of Dharrah could, in specific cases, allow
exemption during the period of such necessity from the categorical orders of the Quran and
Sunnah. The jurists must keep in view the conditions of that era in relation to the location of
application as well as in relation to other associated factors when they evaluate whether the principle
of religious allowance due to absolute necessity will apply.

should not be taken by individual efforts but by a body of authentic131 and prominent jurists
and theologians so that the path of detestation132 may not be opened in the name of the
prevention of harm to the Ummah.
8. If some special condition of a forbidden thing has been exempted from prohibition either
explicitly or through guidance, in that case, it no longer remains prohibited and it is
necessary to take advantage of this exemption.133 Apart from this where exemption or
facility is proved through the contemplation/collective deliberation of the jurists or by some
categorical order, it is only for the removal of sin.
9. The facility provided on account of want of necessity it is exceptional in nature and
principle.134
Second Resolution
The order of permission and indulgence on the ground of necessity will be applicable
on nearly all the chapters of jurisprudence with the exception of Haraam-bi-ain-e-hi135 like
the rights of persons, murder of Nafs136 and Zina (adultery) etc. and the limits of its
influence will be different according to the details noted below.
1. If the orders belong to the category of the commanded ones and their non-compliance
afflicts only the right of the share137, like uttering profane words or blasphemy; in such a
131

Footnote by Ustdh, Ahmed Fazel Ebrahim: Replace the word authentic with dependable and
reliable.

132

Footnote by Ustdh, Ahmed Fazel Ebrahim: i.e. so that certain Islamic prohibitions are not
sanctioned as permissibilities through the use of the principle of Dharrah which is meant to be
applied in specific situations, or under particular conditions or related to specified groups of people
or a given individual. The principle of Dharoorah is meant to be applied in order to protect
Muslims from particular and diverse forms of harm, but its application is restricted and limited to
particular cases. It does not mean that such an allowance should then be considered as an eternal
allowance for all Muslims in every place.

133

Footnote by Ustdh, Ahmed Fazel Ebrahim: This means - If some special exemption related to a
forbidden thing has been mentioned, either explicitly or through inference and analysis of the sources
of the Shariah, in that case, the forbidden thing no longer remains prohibited and it is necessary to
take advantage of this exemption. Although eating pig is prohibited, Allah allows eating pig if there
is absolutely no other form of Halaal food. Thus, in order to sustain life, a person having access to
only pork would have to eat it to an extent that allows him to protect his life or end his dire hunger.

134

Footnote by Ustdh, Ahmed Fazel Ebrahim: This ought to read as - The facility provided on account
of need or necessity is exceptional in nature and principle.

135

Footnote by Ustdh, Ahmed Fazel Ebrahim: This refers to things that are inherently prohibited.

136

Footnote by Ustdh, Ahmed Fazel Ebrahim: This refers to the murder of any human soul. The issue
of unjustified abortion will fall in this category. Does a Muslim doctor have the right to do a
unjustified abortion if he is working in a hospital or a medical clinic and does not have an
independent right or decision to refuse to do the abortion? The rulings relating to warfare will also
change the ruling relating to killing persons fighting and killing Muslims. Can a Muslim kill another
person if he is held under duress/force/coercion/threat to do so? This question is answered later in the
resolutions.

137

Footnote by Ustdh, Ahmed Fazel Ebrahim: This word is not the English word Share. It is the
Arabic word meaning legislator and refers to a right and form of obedience and subjugation that is
due towards Allah.

case although these are themselves prohibited but will be allowed for him in the state of
helplessness and constrain i.e. despite its illegality it will be simply be considered a sin.138
2. If the order belong to the category of the forbidden things and their disobedience affects
only the rights of the individual, like eating pork, dead meat/ carrion, wine, etc. under duress,
such things are permissible only in case of compulsion and coercion, hence these offlict139 no
sin or penalty as the person involved will have no choice but to do accordingly.140
3. If the orders are in the category of forbidden things but their disobedience afflicts the rights
to other people e.g. unreasonable murders, rape, adultery, destruction of the goods/property of
a Muslim etc. it will be dealt with in two ways.
a) If it is possible to compensate the rights of people, e.g. the destroyed goods of a
Muslim141 can be compensated by payment or support, it will be permitted142 in the
case of duress.
b) But if it is not possible to compensate the destroyed right of the people, as can be
in the case of murder or rape, its exemption will not be possible even if is murder
under duress, and it will be illegal to act upon it.
Third Resolution
Sometimes want143 also plays an effective role like necessity in the permission of
the prohibited and sometimes under certain conditions Necessity is made replacement to
want.144 But there are certain conditions and limitations which should positively be kept in
mind.

138

Footnote by Ustdh, Ahmed Fazel Ebrahim: This means - 1. If the prohibitions (like uttering
heretical words or blasphemy) of the Shariah are of a nature that their non-compliance to it would
only affect the right of Allah, in such a case although these are inherently prohibited, a person would
be allowed in the state of helplessness and constraint to articulate these words provided that he/she
does not believe in such words. Despite its inherent illegality (religious prohibition), the allowance
under duress will not place a person in the domain of kufr (disbelief), but his act of blasphemous
utterance will be considered a sin for which he/she has to repent.

139

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the word is offense.

140

Footnote by Ustdh, Ahmed Fazel Ebrahim: This means - If the Islamic prohibition belongs to the
category of the forbidden things in which disobedience to Allah affects only the duties of the
individual, like eating pork, dead meat/ carrion, wine, etc. under duress, then such things would be
permissible only in case of compulsion and coercion, hence these offences carry no sin or penalty as
the person involved may have no choice but to do accordingly.

141

Footnote by Ustdh, Ahmed Fazel Ebrahim: Or non-Muslim

142

Footnote by Ustdh, Ahmed Fazel Ebrahim: i.e. permitted to destroy such goods under duress.
However, what would happen if the person doing the destruction is financially incapable of replacing
the destroyed goods? Perhaps, under duress, he is asked to bomb a place or burn a building?

143

Footnote by Ustdh, Ahmed Fazel Ebrahim: Replace the word want with need.

144

Footnote by Ustdh, Ahmed Fazel Ebrahim: Replace the word want with need.

(a) Prevention of Haraam should be the motive in allowing the prohibition for the
sake of want145 and not the acquisition of any benefit. No prohibited thing can be
permitted for the sake of benefit.
(b) When the motive is to avoid the unaccustomed labour on account of want146,
such labour cannot be counted as reliable want147 which is generally associated with
human actions and Shariah orders.148
(c) When there is no other legal alternative to achieve the end, or if there is such a
way, it is achieved with hard labour.
(d) Any order granted on account of want, will be consonant to degree of want
and no extension will be permitted in it.149
(e) No greater harm should emerge to avoid a harm.150
(g) The want should be genuine and not a fancied one.151
Fourth Resolution
The following conditions should be positively found regarding genuine Necessity in order
to permit the prohibited things.
1. The necessity should be present and not presumed or surmised to occur in
the future.
2. It may have no legal alternative.

145

Footnote by Ustdh, Ahmed Fazel Ebrahim: Replace the word want with need.

146

Footnote by Ustdh, Ahmed Fazel Ebrahim: Replace the word want with need.

147

Footnote by Ustdh, Ahmed Fazel Ebrahim: Replace the word want with need.

148

Footnote by Ustdh, Ahmed Fazel Ebrahim: I do not know what the translator is trying to convey.
The following might relate to what he is trying to express When the motive is to avoid any extraordinary labour or costs in relation to the fulfilment of any material need, then any alternative
measures, which violate the Shariah, to fulfil such a need cannot be counted as a necessary and
valid Shariah need since such needs are generally either exclusively associated to human wants
although, sometimes, these needs are or could be related to human wants and Shariah orders.

149

Footnote by Ustdh, Ahmed Fazel Ebrahim: This means Any Shariah allowance granted due to
the demand of need, will be consonant to the degree of that particular need. Thus, such an
allowance cannot be extended to every other facet of that need, or cannot be extended to every other
case and situation, unless juridical analyses by the Fuqaha establish that such an allowance could
also be extended to other similar cases in other places or other parts of the world.

150

Footnote by Ustdh, Ahmed Fazel Ebrahim: An example of this is when poorer Muslim countries
consider their desire and want relating to economic progress as a need, and thus heavily indebts the
nations to interest that is due to foreign nations. These countries than become impoverished and
eternally remain indebted to the foreign countries. Compounded interest than destroys their economy
and prevents their states from free progress into other sectors.

151

Footnote by Ustdh, Ahmed Fazel Ebrahim: Replace the word want with need.

3. Danger of death or loss should be sure or it should be a very strongly


presumed one.
4. There should be surity152 that usage or commission of the prohibited will
ensure revocation of any grave harm and in case of non-usage, the grave
harm will positively occur.
5. The prohibited should be used only in accordance to need.
6. Its commitment will not cause any other mischief wither greater than it or
equal to it.153
Fifth Resolution
There are several reasons in the back ground of the case and abolition granted by the
Shariah in many orders due to want and necessity.154 The theologians and jurists call these
reasons as reasons of exemption and reasons of remission.155 According to a prominent
saying, these reasons are seven in number: Journey, ailment, abhorrence (duress),
forgetfulness, ignorance, distress and general harm, deficiency.
2. Very often, want, necessity and avoidance of harm is involved in the orders based
on common and general usage, although, from the juristic point, the filed of common usage
and the orders derived from it are somewhat more vast.156
Sixth Resolution
1. Participants of the Seminar unanimously agree that in case of general harm and
distress in some matter, it is sometimes given the status of necessity and compulsion, and
prohibited and illegal things are permitted in case of extra-ordinary harm and distress to the
society.
2. If general necessity, general harm and distress occur in matters whose prohibition is
established by categorical Shariah orders, it is a very delicate another157 of great
152

Footnote by Ustdh, Ahmed Fazel: By surity he means certainty.

153

Footnote by Ustdh, Ahmed Fazel Ebrahim: This means - Allowing the prohibited must not lead to
the creation of any other evils immaterial whether these evils are greater than it or equal to it in sin or
in nature.

154

Footnote by Ustdh, Ahmed Fazel Ebrahim: This means - Footnote by Ustaaz, Ahmed Fazel
Ebrahim: This means - There are several reasons, in the back grounds of individual cases and issues,
which need to be evaluated for the purpose of exemption from Shariah prohibitions. This would not
be an abolition of the Shariah rules, but would be classified as exemptions in given situations and
conditions for specific persons due to the demands of material needs and Dharrah or necessity
relative to the matter concerned.

155

Footnote by Ustdh, Ahmed Fazel Ebrahim: reasons of remission are often noted in regard to
those travelling. Thus, a person who is classified in the shariah as a traveller is not exempted from
the performance of salh, but is required to reduce the number of rakaat in the fard Salawt
(obligatory 5 daily prayers).

156

Footnote by Ustdh, Ahmed Fazel Ebrahim: This means - Very often, a need, a Dharrah
religious allowance due to a necessity and avoidance of harm is involved in the orders based on
common and general usage, although, from the juristic point, the filed of common usage and the
orders derived from it are somewhat more vast

responsibility to exempt them from prohibition158 in the name of necessity159. All the
collective and communal necessities are not of the same degree and their circle and
inevitability is also different from one another. There it is imperative to deeply study each of
them before taking juristice decision regarding collective necessities.160
3. When a collective necessity assumes so much importance that it may become hard for the
people to avoid it, and there may become hard for the people to avoid it161, and there may be
no legal and practical alternative of it, or there may be no way out due to the local legal
coercion. In such cases, justification can be found for the remission in that matter inspite162 of
its categorical prohibition but only till that collective necessity lasts.
4. Very deep and detailed exploration of the collective necessity is very necessary before
taking a decision of this serious nature and the help of legal and social experts should be
requisitioned according to the need in this regard. After consulting the experts of the field in
which the collective necessity arises, and having obtained necessary details of the issue, the
God-fearing prudent theologians and jurists can conclude which collective necessity has
reached the stage where the Millat163 will face grave harm either immediately or in near future
if this necessity is over looked, hence decision of its justification should be adopted.164
5. The decision about distinction or exemption in the categorical orders regarding the matters
on the ground of collective necessity should not be taken by the theologians and jurists
through their individual efforts. Instead if it the decision should be taken by a large number of
theologians and jurists through their individual efforts. Instead of it the decision should be
taken by a large number of theologians and jurists after collective deliberation in the light of
juristic after collective deliveration in the light of juristic principles keeping in view the
Shariah orders and their reasons.165 Only collective decision in such delicate matters can be a
careful and satisfactory one.
157

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the word is act or affair instead of
another.

158

Footnote by Ustdh, Ahmed Fazel Ebrahim: From any established prohibitions of the Quran and
ahadith.

159

Footnote by Ustdh, Ahmed Fazel Ebrahim: i.e. through the use of the juridical principle of
Dharoorah.

160

Footnote by Ustdh, Ahmed Fazel Ebrahim: It means Thus, it is imperative to deeply study each
of these collective and communal necessities before taking a juristic decision regarding an exemption
from an established order or prohibition of the Shariah in relation to each of these issues.

161

Footnote by Ustdh, Ahmed Fazel Ebrahim: This last phrase is either a typist error or an incorrect
translation.

162

Footnote by Ustdh, Ahmed Fazel Ebrahim: He means despite.

163

Footnote by Ustdh, Ahmed Fazel Ebrahim: It means Islamic fraternity

164

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to Resolution No. 1: Problems of Insurance
in Indian Background that was resolved at the FOURTH FIQH SEMINAR HYDERABAD,
India, (August 9-12, 1991) which related to the collective need for conventional insurance due to riots
against Muslims where Muslim properties were destroyed.
165

Footnote by Ustdh, Ahmed Fazel Ebrahim: He means Instead of the decision being taken by a
large number of theologians and jurists through their individual efforts, the decision should be taken
by a large number of theologians and jurists after collective deliberation in the light of juristic
principles keeping in view the Shariah orders and their reasons.

Note: Mufti Shabbir Ahmad Sahib of Moradabad discendes166 in the remission on the ground
of public necessity in the categorically prohibited matters.
Resolutions Regarding Zabhah by Machine
1 st. Resolution :
1 According to the dictionary, Zibh means to perform a surgical operation, and in the
Sharah it means to cut the food and breath pipes and both or one of the jugular veins of an
under control animal167 or to injure or inflict wound on any part of an animal that is not
under your control for slaughtering.168
166

Footnote by Ustdh, Ahmed Fazel Ebrahim: He means differs.

167

Which is Halaal

168

Footnote by Ustdh, Ahmed Fazel Ebrahim: This definition cannot be classified as the only
definition of the Sharah since the Aimmah (plural of Imm) have differed in regard to what must be
cut

The following is in pp351-352 of Volume 2 of Bb-us-Said waz Zabih of the work Ikhtilf-ulAimmat-il-lam by Al-Wazr Ab-l-Muzaffar Yahy bin Muhammad bin Hubairah Ash-Shaibn
(death 560 A.H.) with the Tahqq of As-Sayyid Ysuf Ahmed, (Printed by Drul kutubil Ilmiyyah,
Lebanon, Beirut),
Ab Hanfah R.A. said: It is compulsory to cut the Hulqm (throat/gullet), the Mar
(esophagus/gullet) and any one of the jugular veins. There is another narration from him which
states that it would be Hall when each of the four stated veins/arteries are cut, and it would not be
halaal when half (any two) of the four veins are cut. There is also another narration from him which
states that when any three of the four stated veins/arteries are cut, then it would be hall.
Imm Mlik said: the Hulqm (throat) and the two jugular veins must be cut simultaneously in a
single act of slaughtering.
Imm Shf and Imm Ahmed in one of the two narrations from him- said: * and it is the view
selected by Al-Kharqi * that it is sufficient to cut the Hulqm and the Mar, and it is not essential to
cut the Audj (jugular veins).
There is another narration from Imm Ahmed R.A where he stated: It would not be permitted except
if the Hulqm, the Mar, and one vein from each side is cut.
The procedure of Nahr for slaughtering camels also differs from Zabh.
The folowing appears in the Mudawwanah


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The following has been taken from a Cd (not yet checked with original printed text of Qurtubi
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The following has been taken from a Cd (not yet checked with original printed text of AdDiryah fi takhrji ahdith-il-hdyah.
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As-Sayyid Ysuf Ahmed, in his footnotes, quotes from Sharh Muslim of Nawawi 13/106, and
says : Abu Hanifah said - It would suffice when three of these four are cut [Hulqm, the Mar and
the Wadajain (two jugular veins)]. There is a narration from Mlik which says that it is sufficient
to cut the Wadajain (two jugular veins). Another narration from him, through Al-Laith and Abu
Thaur, specifies the cutting of all four. There are three views from Abu Yusuf: The first is like
that of Ab Hanfah. The second is cutting the Hulqm and any two of the remaining three. The
third is the cutting of the Hulqm, the Mar and any one of the Wadajain (two jugular veins). See
p352 of Volume 2 of Bb-us-Said waz Zabih of the work Ikhtilf-ul-Aimmat-il-lam by Al-

2. Zabhah is of two kinds: Zibah Ikhtiyri and Ghair Ikhtiyr. In the first kind of
Zabh, all the four arteries or most of them are severed and it happens with those animals that
are under the full control of the slaughterer at the time of Zbah (slaughter according to
Islamic tenets). This sort of slaughter according to Islamic tenets).169 This sort of slaughter is

Wazr Ab-l-Muzaffar Yahy bin Muhammad bin Hubairah Ash-Shaibn (death 560 A.H.) with
the Tahqq of As-Sayyid Ysuf Ahmed, (Printed by Drul kutubil Ilmiyyah, Lebanon, Beirut).
As-Sayyid Ysuf Ahmed, in his footnotes, quotes from Sharh Muslim of Nawawi 13/106, and
says : Muhammed bin Hasan (the student of Ab Hanifah) said - It would suffice when most of
each of these four are cut. Otherwise, it would not be Hall. See p352 of Volume 2 of Bb-usSaid waz Zabih of the work Ikhtilf-ul-Aimmat-il-lam by Al-Wazr Ab-l-Muzaffar Yahy
bin Muhammad bin Hubairah Ash-Shaibn (death 560 A.H.) with the Tahqq of As-Sayyid Ysuf
Ahmed, (Printed by Drul kutubil Ilmiyyah, Lebanon, Beirut).







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generally done to reared animals with the exception that the animal may somehow become
out of control at the time of slaughter170. In the second type of slaughter, wound is inflicted on
any part of the body of the out of control animal and let the blood flow from the wound. This
sort of slaughter is done on untamed (hunting) wild animals that are not under the control of
human beings with the exception that the wild animal may be caught and tamed or is
somehow caught alive.
3. Common conditions171 of both types of slaughter are:
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Footnote by Ustdh, Ahmed Fazel Ebrahim: I was asked if it is permissible for a non-Baaligh to
slaughter an animal. Yes, it is permissible since there is no daleel to the contrary, nor any Shart to
specify physical maturity, in Islamic terms, in order to slaughter. However, the folowing fatwa is
essential to note

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Refer to addendum No. 4 and addendum No. 6 Two fatwas from Al-Azhar. Also see the
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should be included with the name of Allah (e) The animal should be alive at the time of
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Special condition of Zbah Ikhtiyr:


(a) To recite Tasmyah (In the name of Allah, the Compassionate, The Merciful) on the
animal set for slaughter.178
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Footnote by Ustdh, Ahmed Fazel Ebrahim: There is Ikhtilf in regard to forgetting the recitation of
Bismillah at the time of slaughtering the animal. See p 343 Volume 2 of Bb-us-Said waz Zabih of
the work Ikhtilf-ul-Aimmat-il-lam by Al-Wazr Ab-l-Muzaffar Yahy bin Muhammad bin
Hubairah Ash-Shaibn (death 560 A.H.) with the Tahqq of As-Sayyid Ysuf Ahmed, (Printed by
Drul kutubil Ilmiyyah, Lebanon, Beirut).

(b) To severe the particular arteries.


(c) There should not be much delay between the recitation of Tasmyah and the Zibah.
Special condition of Zbah Ghair Ikhtiyr179
(a) The hunter should not be in his Ihrm.180
(b) The animal belonging to the Haram should not be hunted.
(c) The bird or animal181 who hunts should be a trained one182.

Also see addendum No. 7 The Al-Azhar Fatwa.


179

Footnote by Ustdh, Ahmed Fazel Ebrahim: Very surprisingly, the Seminar totally avoids
discussion on shooting an animal with a hunting rifle or gun. It would have been ideal to discuss
such an issue in view of the prevalence of hunting in this format. Other fatawa in regard to hunting
with rifles will have to be appended to this section. See Fatwal Khaws f Hilli m sda bir rass
The verdict of the Selected in regard to the permissibility of that which is hunted by a bullet by the
Mufti of Damascus, Sheikh Mahmood bin Muhammad Al-Hamzawi (death 1305 A.H.)

There is also Ikhtilf in regard to when the hunted game escapes and is found dead after a long while.
See pp 344-345 Volume 2 of Bb-us-Said waz Zabih of the work Ikhtilf-ul-Aimmat-il-lam by
Al-Wazr Ab-l-Muzaffar Yahy bin Muhammad bin Hubairah Ash-Shaibn (death 560 A.H.) with
the Tahqq of As-Sayyid Ysuf Ahmed, (Printed by Drul kutubil Ilmiyyah, Lebanon, Beirut).
According to the Mlikiyyah the Zabhah of a Kitb is Hall but game hunted by them is not Hall
unless the game was slaughtered before it died. However, others among them consider game hunted
by them to be equivalent to their slaughter. See p 348 Volume 2 of Bb-us-Said waz Zabih of the
work Ikhtilf-ul-Aimmat-il-lam by Al-Wazr Ab-l-Muzaffar Yahy bin Muhammad bin
Hubairah Ash-Shaibn (death 560 A.H.) with the Tahqq of As-Sayyid Ysuf Ahmed, (Printed by
Drul kutubil Ilmiyyah, Lebanon, Beirut).
180

Footnote by Ustdh, Ahmed Fazel Ebrahim:

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Footnote by Ustdh, Ahmed Fazel Ebrahim: The following is in pp339 of Volume 2 of Bb-us-Said
waz Zabih of the work Ikhtilf-ul-Aimmat-il-lam by Al-Wazr Ab-l-Muzaffar Yahy bin
Muhammad bin Hubairah Ash-Shaibn (death 560 A.H.) with the Tahqq of As-Sayyid Ysuf
Ahmed, (Printed by Drul kutubil Ilmiyyah, Lebanon, Beirut),
Hasan Al-Basri, An-Nakha, Qatdah and Ishq said that game hunted by a black dog is
impermissible since it is a (specie) of Shaytn. See Sharh of Muslim by Nawawi 13/64

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(d) Tasmyah should be recited while releasing the hunter bird or animal or while throwing
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Footnote by Ustdh, Ahmed Fazel Ebrahim: There is Ikhtilf in regard to forgetting the recitation of
Bismillah when shooting the arrow or releasing the hunting animal. See p 342 Volume 2 of Bb-usSaid waz Zabih of the work Ikhtilf-ul-Aimmat-il-lam by Al-Wazr Ab-l-Muzaffar Yahy bin
Muhammad bin Hubairah Ash-Shaibn (death 560 A.H.) with the Tahqq of As-Sayyid Ysuf
Ahmed, (Printed by Drul kutubil Ilmiyyah, Lebanon, Beirut).
There is also Ikhtilf in regard to when the hunting animal or bird kills an animal that was not
specifically intended. See p 342 Volume 2 of Bb-us-Said waz Zabih of the work Ikhtilf-ulAimmat-il-lam by Al-Wazr Ab-l-Muzaffar Yahy bin Muhammad bin Hubairah Ash-Shaibn
(death 560 A.H.) with the Tahqq of As-Sayyid Ysuf Ahmed, (Printed by Drul kutubil Ilmiyyah,
Lebanon, Beirut).
Imam Shafi viewed it Mustahabb (preferable) to recite Salh upon Nabi S.A.W. over the Zabhah.
This was also preferred by Ibn Shqil and Ab Ishq from the companions of Imam Ahmed. See pp
344-345 Volume 2 of Bb-us-Said waz Zabih of the work Ikhtilf-ul-Aimmat-il-lam by AlWazr Ab-l-Muzaffar Yahy bin Muhammad bin Hubairah Ash-Shaibn (death 560 A.H.) with the
Tahqq of As-Sayyid Ysuf Ahmed, (Printed by Drul kutubil Ilmiyyah, Lebanon, Beirut).

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An issue to be noted in the above is that the bullets of the guns in the early days did not tear when
penetrating a body or, in some cases, did not even penetrate. Contemporary bullets pierce into the body
as well as fragment and split open in divorce forms which result in cutting or slicing through flesh and
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4. The occasions of Zabh under control and Zabh out of control are very different. The out of
control type of Zabh is permissible only when the Zabh under control is not possible.
Therefore the permission of Zabh out of control in the place of Zabh under control is
not unanimous.184
IInd Resolution :
1. The qualifications of the person performing the act of Zibh (the slaughterer185) according
to the Sharah are that he186 should be sane, major or minor, he should be wise and
sagacious and least but not the least he should be either Muslim or should be the follower
of some Divine/revealed book.
2. By the revealed book means that he should follow one of the revealed187 testified by the
Holy Quran. The Jews and Christians are such persons in the present age.
3. The Zabhah188 of the Jews and Christians will be lawful with the exception that if it is
proved beyond doubt that such a person is heathen and does not believe in Allah.189
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Footnote by Ustdh, Ahmed Fazel Ebrahim: I dont know what he is trying to express. Perhaps the
sentence means: Some scholars allowed Zabh of non-docile wild animals that are Hall to be done
in the format of Zibh Ghair Ikhtiari even when such animals are in an enclosure where it can be
caught, fastened and slaughtered in the format of Zibh Ikhtiari. However, other scholars rejected
this view and, in such circumstances, obligates a person to do the Zibah of wild Hall animals in the
format of Zibah Ikhtiari.

185

Footnote by Ustdh, Ahmed Fazel Ebrahim: This aught to be slaughtering.

186

Footnote by Ustdh, Ahmed Fazel Ebrahim: It could be he or she, in fact even if a hermaphrodite
Muslim slaughters an animal in the Islamic format, the animal would be Hall. To go a step beyond,
even if a Muslim has done a Harm act of having a sex change, then also, if he/she slaughters an
animal in the Islamic format, the animal would be Hall.

187

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the word Book is missing after this word.

188

Footnote by Ustdh, Ahmed Fazel Ebrahim: Although Allah allows the Zabihah, but the animal
slaughtered or the poultry must be Halaal to eat. Thus, the slaughter of a pig by a Christian does not
make it Hall for Muslim consumption.

The following has been taken from a Cd (not yet checked with original printed text of Qurtubi

4. The Zabhah by a Qadyani will in no case be lawful even if he calls himself Ahmadi or
Lahori.
5. It should be made clear that the conditions set by Sharah should be positively found in
Zabh even though the slaughter is a Muslim or a follower of some revealed Book. Hence all
those conditions in which an animal is slaughtered directly or by means of some machine in
such a way that it cannot be dubbed as Zabihah according to Sharah, the animal thus
slaughtered will neither be Zibh190 nor will it be legal for consumption. Its examples are to
shoot and kill the animal191, to burn the places of Zabh by electric current or by wounding
some part of the body and let the animal die by the flow of blood from that wound or other
means similar to these.
IIIrd Resolution: According to Islamic Sharah, the name of Allh should be utterred at the
time of slaughter, and if the animal is slaughtered in the name of some one other than Allah, it
will not be permissible.
If an animal is slaughtered without uttering the name of Allh, such thing happen only either
knowlingly or by forgetfulness. The slaughter will be lawful if the Bismillh, is simply
forgotton to recite. But if it is deliberately not recited, such slaughter, according to the
majority of jurists will not be permissible.
Imm Shfi holds that if Bismillh is not read as a matter of disdain, the slaughter
(Zabhah) will not be lawful. But if the reason is not disdain, and Bismillh is not read
intentionally, such slaughter will be lawful because according to him, it is sunnah to say
Bismillah.192

55 : 6 :

78 : 10 :

189

Footnote by Ustdh, Ahmed Fazel Ebrahim: Does this apply to the Christians who adopt trinity as a
belief system in which they express that Esa is the son of Allah? Have they not made Kufr?
Presently, from all the Christian sects, it is only the Jehovahs Messengers who believe that Esa A.S.
was not the son of Allah. Has, the figurative meaning of son of Allah become a literal meaning for
the subsequent generations of Christians? It is important that the Seminar and other Muslim
organizations make a detailed study of the various Christian & Jewish sects and beliefs. There are
many so called Christians who believe in Allah but who reject the bible and the prophets, including
Esa A.S.

190

Footnote by Ustdh, Ahmed Fazel Ebrahim: He meant Zabihah.

191

Footnote by Ustdh, Ahmed Fazel Ebrahim: This refers to Zabihah Ikhtiyri.

192

Footnote by Ustdh, Ahmed Fazel Ebrahim:

The Shafiyah view that the Zabhah of the Ahlul Kitb is Hall whether they mentioned the name
of Allah or not provided that they do not recite the name of anyone other than Allh e.g. on the name
of the cross, or s or their king etc. See p 348 Volume 2 of Bb-us-Said waz Zabih of the work
Ikhtilf-ul-Aimmat-il-lam by Al-Wazr Ab-l-Muzaffar Yahy bin Muhammad bin Hubairah
Ash-Shaibn (death 560 A.H.) with the Tahqq of As-Sayyid Ysuf Ahmed, (Printed by Drul
kutubil Ilmiyyah, Lebanon, Beirut).

Be it clear that majority of jurists hold the utterence of Bismillah as obligatory and Imam
Shfi thinks it is traditional (masnoon). However, Tasmyah (recitation of Bismillah) is
obligatory or traditional, every Muslim is generally expected that he will not perform
Dhibh by intentionally not reciting the name of Allah was deliberatly omitted by a Muslim
while performing Zibah.193 Therefore the Zabha by every Muslim should be considered as
lawful.
2. It should be known that, while slaughtering, the recitation of the name of Allah is
obligatory on each animal. Therefore if the act of slaughter is performed several times, the
recitation of Allahs name will also be as many times, and if the slaughter is only once, the
name of Allah will be recited only once, for example, an animal was being slaughtered after
reciting Bismillah once, but before the act of Zibh is complete, the animal somehow gets
out of grip and runs away. Now, if it is caught and again put down for Zibh, in this case
Bismillh will have to be recited again a second time. But if the knife is used only once, and
from this action, several animals are put to slaughter, it will be enough to recite Bismillh
only once.194 Let it be made clear that in Zabhah Iktiyri everytime when an animal is

The Hanbalah view that the Zabhah of the Ahlul Kitb is Hall only if they mentioned the name
of Allh over the animal. Thus, if they intentionally leave Tasmiyyah or mention the name of anyone
other than Allh e.g. on the name s, then their Zabihah will not be eaten. See p 342 Volume 2 of
Bb-us-Said waz Zabih of the work Ikhtilf-ul-Aimmat-il-lam by Al-Wazr Ab-l-Muzaffar
Yahy bin Muhammad bin Hubairah Ash-Shaibn (death 560 A.H.) with the Tahqq of As-Sayyid
Ysuf Ahmed, (Printed by Drul kutubil Ilmiyyah, Lebanon, Beirut).
193

Footnote by Ustdh, Ahmed Fazel Ebrahim: There seems to be some text left out here. Perhaps a
typing or computer deletion error.

194

Footnote by Ustdh, Ahmed Fazel Ebrahim: Thus, if two chickens are placed adjacent to each other,
and the single act of slaughtering the one chicken allows the adjacent chicken to also be slaughtered,
then both will be Halaal from the single Bismillh said. From this, it seems that the resolution is
allowing Bismillh to only be said one time when a single electric blade is started or powered up
by an electric current in order to slaughter hundreds of poultry that are hanged in a specific way
around a conveyor belt type of system that allows each chicken or poultry to be slaughtered by that
specific electric blade. Thus, if the blade stops due to a power failure or necessary stop of the
machine, then Bismillh must be said again when re-starting the electric blade. However, the
difference between this and when the two chickens are adjacent to each other is that the chickens, in
the first case, are both immediately slaughtered, while in the case of the conveyor belt system, the
slaughter of each subsequent on the belt follows the slaughter of the previous chicken. Therefore, the
above fatwa inadequately expresses the Single act of slaughter since for the latter act, to allow
multiple slaughters to be valid with a single bismillh will imply that the animals must be
simultaneously be slaughtered with that single act. However, in the electric conveyor belt system, the
single act of starting an electric blade does not simultaneously slaughter the other chickens. Thus, the
latter is equivalent to taking a hand held electric knife, putting it in motion with a single bismillah,
and thereafter slaughtering 100 chickens, one after the other, but with Bismillh on the first
chicken alone. Therefore, the preponderance of my thought on this matter is that it is impermissible
to slaughter chickens on an electric conveyor belt system with a single Bismillh.

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slaughtered and Bismillh is read, there should be full knowledge and determination of the
animal which is being slaughtered, and if some other animal instead of the pre-determined
animal is slaughtered, it will not be lawful.195
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Footnote by Ustdh, Ahmed Fazel Ebrahim: It seems, that the fatwa is permitting slaughter via a
conveyor belt system for chicken processing plants, and, thus, also states that when the slaughter is
started, then any other animal mistakenly slaughtered by the belt, would not become halaal since
there was no intention of slaughtering it. Perhaps some other chicken in the plant ran across the belt
and was trapped. It thus got slaughtered without there being an intention to slaughter it. Otherwise, it
is impossible to say that you dont have knowledge of the animal you are slaughtering unless you are
blind. In fact, I would say if a blind man slaughtered, in an Islamically valid format, the wrong
animal or chicken, the slaughter is Halaal and he would be liable to its owner for the costs. Thus,
even on the day of Eid-ul-Adha, if a person slaughters another persons animal by mistake, the
slaughter itself, in an Islamic manner, will render the slaughtered animal as Hall for consumption.

Refer to the following from the work of Abul Mahsin Ysuf bin Ms Al-Hanaf (Maktabatul
Mutanabb, Cairo, Egypt) . The text was taken from Maktabatul Fiqh wa Usulihi version 1,5 1419
A.H. (after hijra) 1999 C.E. (Christian Era) cd rom edition by Al-turth. I do not have a printed
text to check the correctness of the text. Takhrj of the ahadith from other sources is thus
essential
1 :266 267 :














Refer to the following from the work of Khall bin Kaikald Al-Al, Dr-ul Kutub is-Thaqfyah
)Kuwait. . The text was taken from Maktabatul Fiqh wa Usulihi version 1,5 1419 A.H. (after hijra
1999 C.E. (Christian Era) cd rom edition by Al-turth. I do not have a printed text to check the
correctness of the text.
Khall bin Kaikald Al-Al, Dr-ul Kutub is-Thaqfyah Kuwait
1 :192 :


3. Sometimes while slaughtering an animal more than one person joins this act; for example
two hands of two different people are gripping the handle of the knife, one hand of a weak
person, and on his hand, the hand of a stronger person, in such a case both these persons
will have to recite the name of Allah but the persons holding the head or legs or body of the
animal will not participants in the slaughter.
IV Resolution:196
Nowadays it is becoming a general practice that before putting the animal to slaughter, it is
made unconscious by electric shock or some other means thinking that it is a way of
mitigating the pain of the animal. This Seminar does not agree with this acception and holds
that the better way is to complete the act of Zabh without making it unconscious.
But in case this practise is in vogue somewhere, and the animal is slaughtered only after
rendering it unconscious, and it is also felt certain that the animal has become only
unconscious temporarily by the electric shock or some other means and is not dead, and if it is
made sure carefully that the electric voltage is adjusted to render the animal unconscious only,
in this case if such unconscious animal is slaughtered, this Zabhah will be lawful.197
Note by Ustadh Ahmed Fazel Ebrahim: The resolution does not discuss
1. Skinning the animal198
2. Mistakingly or intentionally cutting off the head of the animal199

196

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to Addendum 5 The Al-Azhar Fatwa. Also
refer to other footnotes in this regard.

197

Footnote by Ustdh, Ahmed Fazel Ebrahim:

See addendum 12 on the refutation of the view of Shaikh Yusuf Al-Qardawi


198

Footnote by Ustdh, Ahmed Fazel Ebrahim:




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Footnote by Ustdh, Ahmed Fazel Ebrahim:

3. Slaughtering by a female200
4. Slaughtering animals with particular wound inflictions201
5. The resolutions do not discuss the issue of facing the animal towards qiblah.202
6. What is to be done to a foetus found in the womb203

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203

EIGHTH FIQH SEMINAR ALIGARH INDIA


OCT 22-24, 1995
The Eight Islamic Fiqh Seminar was held at the Aligarh Muslim University Campus,
Aligarh. It was hosted by the Department of Sunni Theology of which Maulana Saud Qasmi
is the Nazim. The Seminar was attended by Ulama, Muslim scholars, jurists and
representatives of reputed seminaries from all parts of India representing all schools of
thought. The participants included a good number of the members of the teaching community
of the University also. Sheikh Wahba Zuhaili, the renowned Muslim jurist of Syria was the
chief guest.
Following conclusions, after exhaustive and thread-bare discussions, were arrived at.
1. (A) Only a duly qualified person whose competency in the matter has been authenticated
by a credible source is competent to undertake treatment of patients. It is not permissible in
Sharah to treat patients without competence.204

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(B) If, during the course of treatment by a person not permitted by Sharah to do so, some
major injury is caused to the patients health, the treating person shall be liable.205
2. If the patient suffers injury to his health due to the negligence of, or some lapse, on the part
of the person treating him, that person will be liable.

**************
Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the following fatwa of Al-Azhar

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3. If, in spite of opportunity, the doctor performs an operation without the consent of the
patient or his next of kin and the operation either causes death or some injury to the patient,
liability will be on the doctor.206
Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the following fatwa of Al-Azhar

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4. If the patient be not in control of his senses, and his next of kin are also not available, and
the doctor feels that to save the life or any limb of the patient, immediate operation is called
for and he performs the operation without obtaining anyones consent, and it results in some
injury to the patient, the doctor will be held liable.207
5. If a person negotiating for marriage with some woman is suffering from some such disease
or deficiency which if becomes known to the woman she may decline to accept the proposal,
and his doctor is in the know of that disease or deficiency, and the concerned lady or her
guardian contact the doctor and in the context of the impending marriage proposal enquires
about the true state of the health of the person, it would be incumbent on the doctor to state
the factual position. In case the lady or any of her guardians do not contact the doctor in this
regard, it will not be incumbent on the doctor to, of his own accord, inform the lady or her
guardians of the persons disease or deficiency.208
6. If the eye-sight of a driver employee gets impaired, it will be incumbent on his doctor to
inform the employer of the same. Similarly, if the pilot of an aeroplane or bus-driver is so

-





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207

Footnote by Ustdh, Ahmed Fazel Ebrahim: it is possible that, in the case of hospitals and private or
public clinics, the doctor would consult with colleagues or senior doctors in the respective fields in
order to do an operation. Thus, where consent is acquired through the respective department of a
hospital, etc, then the operating doctor will not be liable for any injury or negative effects. However,
in such a case, the hospital etc must be trustable. These forms of approvals would be recorded by
hospitals. In fact, in many cases, the doctors, because of heavy legal suits against them, require that
patients sign indemnity forms against any unforeseen results. However, signing an indemnity, cannot
waive proven negligence from a doctor or physician.

208

Footnote by Ustdh, Ahmed Fazel Ebrahim: Thus, in terms of the Seminar, and those who adhere to
its teachings, if a doctor knows that patient Mr. U has aids, the doctor is not obligated to inform the
lady of the family of the lady to whom Mr. U has proposed for marriage. Thus, the Seminar is
promoting the idea of allowing Mr. U to afflicted his intended spouse with aids, as well as afflict
another women with aids if he was a person who constantly flirted with other woman. Is this sane?
Would society accept this? Which man in his rational state of mind would allow this? I am sure that
every member of the Seminar would not like his daughter to get Aids through an uninformed
decision on the marriage.
Thus, most likely, the Seminar is not discussing contagious diseases since that would be allowing
others to be afflicted and hurt, as well as place the lives of society at risk. However, there are also
non-contagious diseases which can seriously jeopardize a relationship or the health and future life of
the person afflicted with such a disease. It would be unfair for the person proposing to conceal such
matters from the intended spouse. Thus, I disagree with the members of the Seminar.
Furthermore, since the entire society is at risk because of the prevalence of Aids, it is essential that
every person who has aids to inform every one with whom he associates in his immediate
environment with regard to his disease. Otherwise, the lives and health of others is placed in serious
jeopardy.

addicted to drinking as may jeopardize the safety of the passengers, it will be incumbent on
the doctor to inform of it to the concerned department.
7. If the doctor knows about an offense having been committed by his patient and someone
else is being prosecuted for that offence, it will be incumbent on the doctor to make the fact
known in order to save the innocent person. The principle of confidentiality will not operate
in such a case.
ON ACQUIRED IMMUNE DEFICIENCY SYNDROME (AIDS)209
1. If a person, not disclosing that he is suffering from AIDS, contracts a marriage, the wife
shall have the right to have the marriage dissolved. She will have the same right in the case of
her husband contacting AIDS subsequent to marriage and AIDS assuming serious
proportion.210
2. If a woman suffering from AIDS gets pregnant and a qualified doctor be of the opinion that
in all likelihood the child in foetus will also develop AIDs, in that case, prior to life coming in
the embryo, the period for which the Muslim jurists have fixed at 120 days211, permission for
abortion can be given212.
209

Footnote by Ustdh, Ahmed Fazel Ebrahim: There are special also chemicals that should be used
when making the ghusl of a deceased person who was afflicted of aids.

210

Footnote by Ustdh, Ahmed Fazel Ebrahim: The reverse will also apply. The husband has the right
to terminate his marriage if the wife contracts AIDS. Whether such a bilateral right is only applicable
when the degree of AIDs is of an intense nature is a matter of contention. Some jurists may allow a
mere positive identification of the disease in the patient as sufficient grounds for the other spouse to
consider a continuation of the marriage. In fact, where a person willfully keeps his positive Aids
status concealed from his sexual spouse, and thus becomes the means for him/her to contract the
disease, then the penalty of diyyah Blood money as well as medical costs could be made
obligatory on the spouse responsible for the transfer of Aids.

211

Footnote by Ustdh, Ahmed Fazel Ebrahim: All the jurists are not unanimous on the 120 day
period. Therefore consideration needs to be granted to the views of the other Mazhib and Fuqah.

Refer also to the following


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Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the following fatwa of Al-Azhar

Al-Azhar Fatwa (26) on the prohibition of euthanasia in the case of an Aids patient

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3. If an AIDs patient is completely in the grip of the disease and is rendered incapable of
performing normal functions of life, such a person will be treated as one on death-bed.213
4. It is the moral responsibility of an AIDs patient to inform his kinsmen of it and to also take
all necessary precautionary measures.
5. If an AIDS patient insists upon his doctor to keep it under wraps, and the doctor is of the
opinion that by so doing there is the likelihood of injury to the members of the patients
household, to the patients relatives and to the society at large, then it will be incumbent on
the doctor to convey the information to the relatives of the patient and to the department of
health.
6. In respect of the persons suffering from AIDS or other infectious disease, it is the duty of
their folks, relatives, and the society as a whole, not to leave them isolated and uncared for.
Taking all necessary precautions, good care should be taken of the patients and due cooperation offered in their treatment and in their adopting all precautionary measure.
7. It is improper to keep the AIDs-infected children deprived of education. Observing due
precautions, arrangements for imparting education to them should be made.
8. Restriction on movement in and out of plague-affected areas is desirable except in cases of
extreme necessity.
9. It is haraam (totally forbidden) and a major sin for AIDS patient to knowingly transmit the
disease to any other person. Such a person will be liable for penalization in view of the nature
of the act and for the harmful affect it has on an individual or on the society as a whole.
ON URF (USAGE) & PRACTICES
URF AND ITS FORMS:
1. Literally Urf means a commonly known matter. In the terminology of Shariah, by Urf
are meant such sayings and acts which are prevalent in a given society and people act in
accordance thereof.
2. Aadat, in lexicon, means the occurance of something. Terminologically, it covers such
things which, without any rational relationship, occur so repeatedly that observance of the
same becomes as common as of something natural.
3. There is no substantial diffeeences between Urf and dah. Both are the same in their
intent and import, though different in their application.


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Footnote by Ustdh, Ahmed Fazel Ebrahim: this means that certain rules relative to inheritance and
talaaq will apply.

4. The difference between Urf and Ijma (consensus) is that Urf emerges out of the conduct
of the people whereas Ijma (Consensus) is unanimity of opinion of Mujtahidn on a given
issue.
5. Urf is of two kinds: spoken Urf and Urf by deeds. When some word or combination of
some words begin to have a particular meaning among a people and, when spoken, every
one starts taking them to mean the same without necessarily any rational or logical
connection, it is termed a spoken Urf (Urf-e-Qauli). The way in which a people normally
and usually act is Urf-e-Amali (Practice).
6. Shariah acknowledges both the Urf-e-Qauli and the Urf-e-Amali. If something gains
currency among a majority of the Muslim population of the world it would be Urf-e-aam
(general usage). If it becomes prevalent in a particular city, province or township or limited
among a particular group of persons, it will be Urf-e-Khs i.e. limited Urf.
7. Every such Urf or usage which runs contrary to any specific injunction of shariah, or its
spirit or any accepted objective of Shariah, will be invalid e.g. giving of Jehaz (dowry) at
the time of marriage as has become customary; or demanding money and other valuable
items from the brides people by the bridegroom; depriving girls from inheritance, utilizing
the usufruct of property taken in mortgage etc.
CONDITIONS FOR URF BEING ACCEPTABLE
1. It should be either total or shared by a large number of people i.e. either a hundred percent
persons in a given society be its adherents or an overwhelming majority of them.
2. It should already have been in existence prior to the occurrence of a particular incident and
be in vogue at the time of the occurrence.
3. There be no specific understanding between the parties to a deal running counter to the
Urf.
4. Acting according to the Urf should not entail the contravention of any clear injunction of
the Shariah or violation of a clear principle laid down by the Shariah.
URF AND SHARIAH
1. If a commonly in vogue Urf is at variance with a general Nass (plural Nuss i.e. an
injunction of the Shariah) in such a manner that acting according to Urf may not entail the
giving up of the Nass altogether but only particularizes the general Nass, in that case it is
permissible to particularize the Nass in its application for the purpose of acting according to
the urf.
2. In case a commonly in vogue Urf is in conflict with the Nass, so much so that acting on
urf entails the giving up of the Nass altogether, then the urf will not be acceptable and
shall not be acted upon.
3. Those Nuss, in respect of which it is conclusively established that those are based on some
Urf, the injunctions flowing from such a Nass may be altered with the change in the Urf.
However, it is emphasized that to decide whether a Nass is based on urf is an extremely
delicate job warranting extreme caution. An authentic finding in the matter can only be
given collectively by top grade Islamic scholars who are quite God-fearing and cautious in
their approach.

4. If a commonly in vogue Urf (Urf-e-Aam) is in conflict with something based on Qiys


(analogy), Urf will take precedence and Qiys will not be acted upon against Urf.
5. In case where an Urf-e-Khss is in vogue in a very limited area, then Qiys (analogy)
cannot be given up because of such an Urf.
6. If an Urf-e-Khss is prevalent in a very large area, then it would be acceptable if Qiys is
given a go by as against it.214
7. If any Urf is in conflict with the fundamental objectives of Shariah, then such an Urf will
have no value and will be ignored.
CHANGE IN URF
1. Those issues of Zhir Riwyah215 which stand proved on the strength of clear Nuss
(Quran and Sunnah) will not be given up because of any Urf. However, the issues
emanating from the same can be given up against an Urf.
2. If an opinion expressed in one school of Fiqh (Islamic Jurisprudence) be contrary to an
Urf while there is another opinion in any other school of Fiqh which is in consonance with
the general conditions governing the validity of an urf, adopting that other opinion will not
tantamount to (going out of the parameters of one mazhab), but would amount to acting on
the urf.216
3. Those verdicts which are not based on Nuss (Quran and Sunnah) but only on Urf and
practice, will be modified in consonance with newly emerged Urf in case the urf
changes.217

214

Footnote by Ustdh, Ahmed Fazel Ebrahim: He means to say - If an Urf-e-Khss is prevalent in a


very large area, then it would be acceptable if Qiys is given preference against the urf.

215

Footnote by Ustdh, Ahmed Fazel Ebrahim: The Zhir Riwyah in Hanafi fiqh normally refers to
the writings in the 6 major works of Imm Muhammed Shaibani, the student of Imam Abu Hanifah
(R.A). These are Al-Jami-ul-Kabr, Al-Jami-us-Saghr, As-Siyar- ul-Kabr, As-Siyar-us-Saghr,
Ziydt and the Mabst. Refer to the Hanafi fiqh work rasm-ul-Mufti which relates to the issuing
of fatw.

216

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the following extract from one of my papers

12. Research and Academic Papers on Urf


Title or Subject

Institution

Author

Level

Custum ('Urf) as a
marginal discourse in the
formulation of Islamic
Law: myth or reality? With
special reference to Ibn
Abidin's discourse on 'Urf:
1-87.

University of Cape Town.

Sitoto, F. 2000.

M.A.

217

Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to Addendum 13 from Al-Azhar

MARRIAGE WITH CONDITIONS218


Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to the following from Al-Azhar
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1. If marriage is conditioned with such terms as are meant only to emphasize such rights and
obligations which are ipso facto created by a wedlock, such conditions will be valid and it
will be incumbent to fulfill those.
2. To encumber a marriage tie with such conditions as go against the very philosophy and
objectives of marriage219, or which are forbidden by Shariah, will be of no consequence,
e.g. the condition of absolving the husband of his liability to provide maintenance to the
wife or the giving of Jahez (dowry) or payment of Tilak220 etc.
3. If such conditions are agreed upon which neither the Shariah has ordained nor has
specifically prohibited, then it will be incumbent to act according to such conditions.221
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Footnote by Ustdh, Ahmed Fazel Ebrahim: What if the intended wife specifies that she marries on
?condition that she will not have kids

220

Footnote by Ustdh, Ahmed Fazel Ebrahim: I do not know what is tilak. Perhaps it might refer to
the return of the mahr during a Khulah.
Footnote by Ustdh, Ahmed Fazel Ebrahim: Refer to addendum No. 9

221

FROM RESOLUTION ON THE EXCLUSION OF FEMALES


THE AGRICULTURAL PROPERTY
This meeting of eminent Ulama and Muftis coming from all parts of India and abroad
expresses its grave concern over the immoral, illegal and unconstitutional exclusion of
Muslim females in particular, and females in general from the repulsive but still prevalent
scheme of succession under U.P.Zamindari Abolition & Land Reforms Act (U.P. Act No. 1 of
1951).
The participants of this 8th Fiqhi Seminar similarly express their displeasure at the omission of
Agricultural Land from the definition of Muslim Personal Law as defined in Section z of
the Muslim Personal Law (Shariat) Application Act, 1937. The participants of the 8th Fiqhi
Seminar wish to impress upon the Central Government and the state Government of Uttar
Pradesh of the long standing demand of the Muslim community for the restoration of the
Islamic right of inheritance to their Muslim sisters by including agricultural land within the
purview of Muslim Personal Law.222

This Seminar is alive to the fact that most Muslim females do get a share even in the
agricultural lands because of many fatwas which have been issued to this effect in the
past.223 Still, there is urgent need for an amendment in both the Shariat Act as well as the U.P.
Zamindari Abolition Act to undo this injustice from the Statute Book itself.
This meeting therefore unanimously resolves to request the All India Muslim Personal Law
Board to seek an amendment in the impugned laws and demand the inclusion of agricultural
land in section 2 of Shariat Act so that what Islam has given to women is not denied to them.
This meeting further issues a directive to the Muslims of Uttar Pradesh to give women their
share of property in accordance with the Holy Quran and Sunnah, inclusive of agricultural
lands and not to deny this right of theirs on the basis of any man made legal system.
ISLAMIC FIQH ACADEMY (INDIA)
AIMS AND OBJECTIVES
The religion of Islam which was revealed to the last Apostle of Almighty Allah, is an eternal,
universal and comprehensive message for the mundane well being and spiritual salvation of
human kind irrespective of spatio-temporal boundaries and diversity of ethnicities and
civilizations. Islamic jurisprudence organizes all the principles and laws of human life derived
222

Footnote by Ustdh, Ahmed Fazel Ebrahim: Perhaps the State did not intend to exclude agricultural
lands from inheritance but was compelled to do so because of local conduct that led to lands being
divided to smaller and smaller sizes, which led to the inability of local farmers to sustain their
agricultural capacity on a feasible level. Therefore, what needs to be established is the minimum land
holding sizes of the various areas. Inheritors would then not be allowed to reduce the farm or land
sizes. They would then be compelled to sell the share of some persons in the estate or to sell the land
in order to distribute the estate.

223

Footnote by Ustdh, Ahmed Fazel Ebrahim: Specific females who are directly, or by cause, related
to the deceased receive a percentage from the net estate of the deceased. This is established from the
Quran and the prophetic teachings. Islamic verdicts fatawa = Arabic plural of fatwa have further
corroborated the Islamic validity of this position.

from the fountainhead of Prophethood. Hence, the jurisprudence of Islam is a living dynamic
law for humanity, it is inevitable for the Ummah to work out harmonious correlation between
the changing pattern and demands of time under the guiding principles of Shariah. Now it is
the responsibility of jurists and servants of Islamic Shariah to work out the harmonious
application of the dynamic jurisprudence of Islam in the ever changing patterns and
circumstances of the milieu. It rests on their practical wisdom how to face these challenges of
the time and fulfill this genuine religious and academic imperative with the following aims
and objectives:
1. To find solutions for the problems brought up by the contemporary developments and
changes in social, political, economic and industrial spheres of life in the light of the
guidelines provided by the Quran and Sunnah and deliberations and interpretations of the
Companions of the Prophet and our pious ancestors.
2. To make collective efforts to find solutions for the contemporary problems and those
problems of past which demand re-thinking and research in the changing circumstances, in
keeping with the principles and methodology of fiqh.
3. To conduct research projects on the interpretation of the sources, principles, methodology,
paradigms and the theoretical infrastructure of Islamic Fiqh and its application in the
modern times.
4. To conduct contemporary interpretation of Islamic Fiqh.
5. To conduct research projects on juristic topics keeping in view of the demands of the
contemporary requirements and trends.
6. To provide and publish the verdicts and writings of the genuine experts of Islamic Law and
thought from eminent religious institutions vis--vis the challenging problems, and bring
them to the notice of the Muslim masses.
7. To promote co-ordination between all juristic and research institutions in India and abroad
and know the academic works and endeavours of each other.
8. To prepare index on different topics relating to Islamic Jurisprudence.
9. To collect, edit and publish the verdicts (both published and unpublished) of the eminent
savants and institutions as the common academic and juristic legacy in the contemporary
idioms and style in order to preserve it for the benefit of future generations.
10. To publish the findings of different researches already carried out on social, economical,
medical, environmental and sociological problems arising in different parts of the world on
national and global levels.
11. To publish the appraisals of the court verdicts vis--vis the interpretation and application
of Islamic Law in India and abroad, and highlight their consequences.
12. To appraise the misunderstandings and misinterpretation of the western orientalists and
others concerning Islamic jurisprudence, and come bring forth the genuine outlook of
Islam.
13. To prepare literature in the contemporary idiom and style consisting of the new issues and
challenges.

14. To direct the emerging Muslim scholarship and help it acquire scientific and research
dimensions, and encourage the emerging scholars to promote a milieu of academic and
research activities, and link them with a centre.
15. To arrange necessary facilities of the contemporary education for the able and intelligent
graduates of the Islamic madrasas, and of the religious and juristic education for the
scholars of universities, aiming at the preparation of a new generation well-versed both in
religious and modern sciences.
;16. To hold seminars, symposia and conferences aiming at the fulfillment of objectives
organize study teams; establish academic and research institutions and adopt all measures
permitted by the resources of the Academy to serve these ends.

The following were added by Ustaaz, Ahmed Fazel Ebrahim


Addendum 1: Al- Azhar Fatwa on Organ transplantation
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21 ).

Addendum 2
Al-Azhar Fatwa (27) on the distinction of a Darul Harb from Darul Islam
:
) (27 .
1997 : .

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************

Addendum 3:
Al-Azhar Fatwa - Islamic and Ahlul Kitaab slaughtering requirements
:
: .
) (1314 .
12 1401 - 1981.

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*********************************************************************

Addendum No. 4 : Al-Azhar Fatwa (1315) The Slaughtering of the Ahlul Kitaab
:
-

) (1315 .
.
:
3 1402 31 - 1981.
:
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***************

Addendum No 5: The Al-Azhar fatwa (1108) relating to stunning animal by electricity


:
:
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. 1374 17 - 1955 28
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Addendum 5 (b) Al-Azhar fatwa (1295) on stunning an animal


:
) (1295 .
1399 18 - 1978.

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****************************************************************************
Addendum 6: Al-Azhar Fatwa (1109) Ahlul Kitaab slaughtering
:
) ( 1109 .
9 1382 6 - 1962.

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Addendum No. 7: Al-Azhar fatwa (305) on saying Bismillah at the time of slaughtering
:
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1997 : .

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*****************************************

Addendum 8: Al-Azhar Fatwa (1039) on the damages of an animal


:
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1382 1 - 1962.
:

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1 .
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*****************

Addendum No. 9: Al-Azhar fatwa (1186) Intended wifes pre-marital condition


to complete her studies
:
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15 1402 12 - 1981.
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.
.
********************************************

Addendum No. 10
Al-Azhar fatwa 1150 and its response to the details in the magazine titled The
pulpit of Islamwhich was issued by Nasser Social Bank
:
: .
) ( 1150 .
: .
18 1402 14 - 1981.
15 . 16 ) ( . 17 . :
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Addendum 11
Bribery
-
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*********************************************************************

Addendum 12

Amidst the errors of Shaikh Yusuf Al-Qardawi in his work The


Halaal and the Haraam in Islam

) : (
A refutation of his view concerning the general allowance of
consuming animals or poultry that were electrically shocked/stunned
by the Ahlul-Kitaab
An extraction by Ustadh Ahmed Fazel Ebrahim
from a publication by
Imam Muhammad bin Saud Islamic University
Saudi Arabia

27 1396


Others who had previously written on the errors of Shaikh Yusuf
.1
.2

-6 :

) (48 ) :
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Addendum 13
Urf

:
: .
-------------------------------------------------------------------------- ) (244.
: .

1997 : .
: " "
.
:
:


" " 367
.

.
.
" 12 " 45
.
:

"
".
*********************************************************************
*******

All praise is due to Allh,

All thanks is due to Allh


O Allh make our deeds purely for Your sake and do not let
any extent of our deeds be done for any being besides You
In regard to all footnotes placed by me (Ahmed Fazel),

Allh

where these are correct, it is due to the grace of


,
where the footnotes have errors, it is from the aberrations of my own self, and

Allh

allow those more learned on the subject to rectify my errors so


may
that I do not become the means of misguidance for anyone on any matter.

Completed, by the grace of Allh,


on Wednesday, 15 March 2006

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