CONTENTS

Engluh l$I.amk Ubrary.......................................................... Editorial Staff.........................................................................

Admowl~dgemenl ........................... _......................................

ix

x i
x!!! n

........ Tran$lator'l Prerace....................... _ ............ _........... _ Introduction ...........................................................................

I TRADE TRANSACTIONS
Ch. pur I Trade 1hInsaclionl. ... ~_ ....... _. ___ .. _... __ .... ____ .. _.. _... _
Proh ibitw T...,w" T.. nsactions ........ __ ...............__ ~........

Chapter 2

15

Chapter .3 Chapter" Chaplet 5 Chapterti Chapler ' Chap'tr 8 Chapter 9

Tnade Trano.act ions Condition......................................... Option in Tra<k Transaction!..... _.... _............ .................. Dispoul of. Pun:huod Commodity Mon. Reipt and RN<;i nding of aargains ............................................ Rib~ ............. ........................................................................ Selling A.aftS.._ ............. . _... __ ._.... _........ _..... ___ .. _... _

19 23

" "
SI
59

47

Selling FruilS. .. __ .._.......... _... __ ......... _...... _......... _... __ .

Blightt<l Fruits: Rulings ....................................................

Chapttr 10 "T"lM: Salam (Salt Qf Paymcm in Advancc) ......... __ .. __ .... Ch. pIU 11 l<Nning a nd loans..___ ._.. __ .___ .. ____ .... _... _______ _ Chapter J2 Mortgagc............................................................................ Chapler 13 Gu.rant............................................................................ Chaplu l4 Su'ctyship ( Ka/llah)___ ..... _... __ .. __________ .... _......

.
n

"

"
79

73

Chapter I S liawllah (T",nsfcrcnaof Debu)....................................

CONTENTS

Iv

Chapter 17 Interdiction ........ ,......... __ ............ ,...................... ,................ Chapter 18 COncili.tiOl1........................................................................ Chaptu III Nrighbomood and Roadways. ..
H _ _ _ _ . . _ _ _ _ _ _ _

105
11] 117

"

Chapter 20 P!"ffmption ................................................................... _....

11 PARTNERSHIP
Chapter I Cha pter 2 Chapter J
C h.apter4
Kinds of l'art nc:n.hip... ___ .__ ... ___ ..... ___ .__ .____ ._.....
'l n~n

125 129

(Coopcntlve) PartnerJhlp.....................................
Par1n~ip..._. __ ............ _....

Mull1robah (Spulativt')

III 135

Repulablr Partner. Manua l, and Comprehensive Partnersh ips.......... ............................................

III SHARECROPPING AND RENTING

Chapter I
C hapter 2

ShartCropping (Muzdm'oo and MlH.Ilqdh). ,,~ __ .____

~ntingThings .nd Hiring ~oVlt:' ~ias (1j4...h)... _
Comp<tition (Sabq)... ................ ".... ................................

141
147

Chapler 1 Chaplu 4 Chapler 5 Chapler 6

Chapter 7

155
161

Lending Somtthing for \J$r ( . Ariy<lh) .. ____ .___ .. _. _ USurpation.................. _. __ _..... _. __ ....... _______ .... __.... ..
D~magef .. _ ....................................................

165
171

Damage and

TrllSts. __ ........ _... __ ...... _.......... _.. _................ _............ _. ____

In

IV RECLAMATION OF WASTELANDS AND

POSSESSION OF ALLOWABLE OBJECfS
Chapter I
RKLamation ofWu\(Land$. ...................... _.............. _......

183

Chaplu 2
C hapter J Chapter 4 aa. ptu 5

Job Wagn (jat!IDh) ___ .. __ ... _... _. ____ ..... _.......

H ........ __

189

Finding Lof t Object< (Luqa[!lh) ........ .. ..........................

Foundling .... _.............. _........................ _ .................... _......

201

'"

Endowmell' (W~<U). ___

.H __

._~ _ _ _ _ _ _ _ _ _ _ _ _ _

lOS
ZIJ

Chapter 6

Gifl and OOO.lion..............................................................

A SU ........,. 01 humic JurupruJ.nc.

V INHERITANCE
Chapltl'l Chapttl' 1 m.po53lo(o .."-' Proptrty D\lrin&Skknea. .. ~ .* . *_.. WiUs. ........ _....................._.. _... _....... _... _.._.___ ...............
Inh~ritanc(:

221 225

Chapln 1
C hapleT .

Ruling............................. .... "...... .................. Ind 1h. Lrgal [nht'ilol'S... ..........

239
245

Cau .... of

!nh~ritan(~

Ch. pur 5

I nh~rilanc.

O[Spoll"".................................................. ,...
~lcrnal

251

Chapter 6

Inheritance of Fathers and

Gnnd f.th.rs........

253

Chapter 7 Chapter 8 Chapltr 9

Inh.ritance of M other!...................................................... InhtTilan.c. of G"''''dmolh ..................................*_ _.. Inh.rit."", of Daught......_. __ .__ .. __ .__ .... ___ .___ .. ___

257 259 265

269 275
2~

Chapter 10 Inhtritanct nf FuU S;s.(fI..... _... _.... _... _...... _....... __ .. __ . Chapter 11 Inhmtaoc( of S;s.en with Daughten and Inhu itanu of Matunal Siblings ...._.......... __ ...... _..... _...... _........ _..... Chaptt r 12 Agn.tion.......... ................................. .................................. Chaptt r 13 P, e""ntion from Inhui tancc (tl~jb)................. .............. C hapter 14 Inherit"""" ofSiblinS' with the: Pat~.nal Gnmdf.lh(r.. ..... Chapter I S Th. Mulddah... ................................................................ Chapt(r 16 Dividing Prtscribro Sh.," IOC'cording 10 A$.IIumption
and Pruautionary ProccduJU. .................... __ ............. _. C haplu 17 InM,ilallcc nf a Hcrmaphroditt... _. ___ .......... ___ .. __ ...

285
289

299
~7

J09

Chaptu 18 C haplu 19 Chapter 20

I nhtrit.nc~ nf a
I nherit. " c~

Fetus. .... _. _ _.. _. _... _... __ .......

)1)
319

of a Missing Ptrson ____ .____ . __ ..... _.... __

Drowned and Thos.e Killed Under CoUaps.cd Buildings...........................................................

In~ritanccnf l~

323

Chapler 21 Inherilanc e by Radd.......................................................... C hapler 22 Inh.rilanCt ofKindml by 8100d..................................... C hapler 23 Ch'plu 24

Inh.ril.nc~ Inh~riliUlC.

327
33 1

ofDivorcc:d Wom.n..................................... among People nfDiffc~nl R.lIgions. ........

335
339

Chapter 25 Intlerilafl("e of tbe Murderer 01 the Inherited Pmtm_.. __

}43

CONTl':NTS

VI

MARRIAGE
M unag<' ... ...... ...................... ............................
H .......... _ ... ..

Chapter 1 Chapte r 2 Chapter ) Chapte r.

Engagrtntnl ...... _.. _... _........ _... ___ ..................... _____ .. Mar T iali' Coni_ I: In.tgrals and COndi.ions. ........ _... _ Equivalence in Marriag.................................................. .. Unmarriag.able Wom.n ........ ... ...................................... . Conditions Made Ikforr Marriage ......................... _...... Defe<:u in Spousn.............. __ ... ___ ....................._... _..... MaI"riagr of DisbdieYm...__ .____ ..... ___ .... ____ ... _..... _

,., '" ,.,

'67

Chapter S Chapter 6 Chapter? Chapter S Chapter9 Dowry... _ ............. _ .. _ . .... Chapter 10 Wedding ~~ It (Wall_h) .............................................. .. Chapte r 11 Hus band-Wife Relationship... .. ......................................

'" '"
379
389

'95 <0,
407 415

Chapter 12 Matters Nullifying Wife', Right of Expenses and Shrn. of NighlS... _._ ..... _................... _ ......................... ___ .___ .. ._

VII: DIVORCE Chapter I Wir.'. Rd. .... aphut Paymenl (Khul') ..........................
Chapte r 2 Chapter ) Chapte r 4 Chaple r S Chaple r6 Chaple r ? Chapler 8 Dive rt ._ ............................................................................. Sunn; and lnmwllt ive Divorc. .............................. ........ _ ._ Tak..ing Back One', o;,'Ora<! Wife (RJJj .J>h) ...................
fld' (R>rcswearing 0n01 wi&: Mort Than Four Monthsl_ Zili;Ir._... __ ... _._ ... __ .__ ... ___ .__ ... _....... _................. _... _.
U' in (AIleg;Ition of Adultny Swtrn against: Onn: Wdtl_

."
W

Eslabll,hing Pal.rni.y........... _____ _.......................... .. ........ _

." '" '"

46) 461 479

'" '"

_ ..................................... Chapte r9 Wai.ing PrriD<l.................. Cha pter 10 Verifying thcSla~ Girl. Non-Pregnancy.. _... ___ ... _....

VIII BREAST FEEDING

Chaple r I Chaplcr2 Chapler ) Chapte r .. Chaple r S 8 a.lf<ling. ............................ _........................ _.......... __
Cu~lody..............................

..... _ .................................. .. .. ..

Ca......,.

Cullody.................................. .. The Wif., Alimony.. _...... __ ..... __ ........................... _.. _._ Maintaining Rflal ittS and ~iol\$.._~_. ___ ._. __ _

Prcv.nlin~

.., .
483

"" S01

y;;

A Summ.. y of bhmk ju";,p'uJ ..:e

IX QISAS (LEGAL RETRIBUTION)

Chapter I Chapler 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7
Murd~r

and its T~s... . .... ....

......... ..........

515 527

Qj~d~
Qj..,J~

for Murder................................................................ for Parts of the Body and Wound .. ..................... .

QiIJ,I Wh~n a Group Kills an Indivi duaL.

,,,

Diyah (Blood Money) , ..... ......,...................... .

Amounts ofDiyah (Blood Money) .................................

Di)'lh (Ind~mnity) for Body Organs. Stnses and Functions.

", 5S?
5"
~,

Chapter 8 Diyah (Indemnity) for Wounds and Fractu"'s .. Chapter 9 Expiation for Murder................. . Chapter 10 Q~sJmah (COmpurg~t;on ) . ........................... .

'" S?, '"' '" ."

'B

X PRESCRIBED PUNISHMENTS
Chapter I Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9
HuJilJ (PrtSCr ibed P unishm~nts) ..........................

Prescribed Punishments for 2ind ................................... Prescribed Prescribed

Pu n i,hm ~ nt

for Slande r............................... for Intoxicants ..........................

Pun ishm~nt

...
'" m '" '" '" '"
'"

Disc",tionary Pun ishm. nh .............................................. Prescribed Pun ishment for Stealing ... Prescribed Punishment for Highway Robb.. y.............. . Fighting th. R.bels ........................................................... . Apostasy.

Xl FOOD
Chapter I Chapter 2 Chapter 3 Chapter 1 Chapter 2 Chapler 3
Food . ..................................................................................

Slaughtering.... ...................... . Hunting. ............... .............. .

XII OATHS AND VOWS

Oaths .................. Expiation fo r a Broun Oath ....... .... ..... ................... .. ...... .

Vows .................................................................................. .

'"

";;1

XI II QADA' (JUDICIARY)
Chapln I Chapler 2 Chnpler 1 Chapter '" Chapln 5 Chapter 6 Chapler 7 Chapler 8 Chapln 9
Judici....y In Islam............. _......... _............... _... ___ ... _...... Judge Ettlits. .............. __ .......... _... _..... ___ ... _....... ___ .. _.

695
701 707 71) 719

Method ofUndmaking )udgm"nt.................................. Valid Coon Claim: Cooditiollli._.....................................

DividilllSharn among Panf"let"l..... ____ __ ____ .__.

Cl.im and Evidmce .................... _........................... _..... Tostimony......... ................................................................. .

725

n,

Judges. Testifying to Testimony. IIld Takins Back Testimony ___ ... __

~ amoI1J!

Oath, in Oaims.......................... _................. ___ .._.....

741 747

Chapler 10 Confwion.........................................................................

APPENDICES
GlolSaf}'.........................""..... ""'~"'''H'''''' ...........
M ..._ ..._.....

'"
759

Name IndeL...................................................................... _... Subject Index......................................................................... Quran k Verw Indu...............................................................

Hadith Index. ..................................................................... _... "Tranalllert.llon System.................................................................

767
773

7a}
789

809

ENGLISH ISLAMIC LIBRARY

and various issues in Creed, Jurisprudence and Islamic Sdences by authors who have e~pert knowledge inlhei r fields. It targets bolh the Muslims

nglish Islamic Library: A seri"'S

in English

covering central

and the non-Muslims in the west as well as those who slu dylslamic Sciences in English in Arab countries.1l also targets Ihme who are engaged in propagating Islam in the West.

IN THIS SERIES:

L Condsf: Commentaryon the BookofTDwl!ld, Sheikh professor

SillihAl-FawzAn

2. A Summary at Islamic Juri.prudence (Volume one), Sheikh professor S;l.lih AI- Fawzan 3. A Summary "f l"omie 'url.prudenc .. (Volume two) : Sheikh professor Sllih AI FawzAn

4. Guide to SC)fJtul Cre..d: Sheikh professor SAlih AlFawzin

S. A Brief Account "fthe Prophet Biography. Sheikh Muhammad Ibn 'AbdulWahb~b 6. Allflh',1'l$ightju15igHJ' Tawfiq . Ulwan
7. The Way of the TroveluJ, An Explaoalory Bo()k 00 Islamic Jurisprudence, Sheikh' AbdurRahman AsSa - dl

8. fu:!Jtrerllting the Gmlt fm<lms from .Blame: Imam Ibn 'raymiyilh

9. UniversQlity oflsrl""" Imam Ibn Taymiyah
lQ.Urn Tay miyohl Collection nfFotwtu (Volum.. 21 & 22 & 23)

EDITORIAL STAFF
MA!NEDlIDRS NATlyE EDITOR Umm Abtiull. h

Dr. Mi, E<-Sa)')'td Alii> Dr_ Muh.ammad .h)1l

Dr_Fohad M_ AI M.lik, KFS<, Saudi Arabia

REVISERS

CONIRI 8UTING TMNSLtJORS

Mu tliommild Abdul-Moodm All
j-Lm; Mahmoud A><iu]F. ttah

M1hmoud I'<>uly Muham.ntad

Bah.. EIDin Ibrahim

D ESIG N AND IECHNQI.O GY

SHAft'! AND ARABlcCQNSlnIAtm

Graphic Designer: Muh.m""'" S. lih

Layout: Mokhtar ' !lwany

st,. ikh Hat,m Amin All

H.omada E.b<Od Ahm!

Mulumrnu! N"",ir Mog>h<d

About the Author

Sheikh
S~ lih AJFawz.~n

(born in 1935) has obtained a PhD in Islamic

Jurisprudence and has a J"og history in teaching jurisprudence.

He is a member of many academic institutions including the Board of &n io r Ulema, th e Permanent Committee for Fatwa and Re... arch, the Islamic Audemy of Muslim World uague, th e Committ~ ofSll~rvising Du' ah. and many other scholastic ho<Iies.

He has written more than sixty published works coveri ng Muslim Cll'ed, Islamic Jurisprudence and Muslim's Conduct.

ACKNOWLEDGEMENT
All prai~ and thanks are due 10 All ah, o ur Lord Who facil it at~d translating and completing tbis invaluable book In t he (Ou= of translating this invaluable book into English, we find ourselves indebted to more people than ~ can possibly nominate he"" without their hdp. this book would have never come to the light. At the outsct, we deeply apPll'ciate and thank sheikh ,professor SaJih Al Faw7J.n for giving us exclusive ptrmission to translate andipublish h is books as well as his follow-up with the diffen:nt stages o f publishing the books. May Allah give him success in this Worldly Life and He...,aftu .

We arr pleased to have the opportunity to express our gratitude and profound thanks 10 Dr. Muhammad Mahmud GMIl. professor of Linguistics
and the ex -dean of Facu lty of Languages and Translation, AI-Azhar Unjv~rsjty, for the great help and moral support he rendered uS wh ~ 1l w~ startM the process of translation.
W~ would also lih to extend our g:ratitude and deep appreciation to Dr.

Muhammad Muh ammad AhCl Layla, professo r of Islamic Studies in English and Head of English Department, Faculty of Languages and Translation, for his ptnetrating advice and inspiration throughout the process of translation. Moreover, we are behold~n to h eartil y thank Dr. Ahmad Zaki tiamm~d, professor of Islamic Stud ies in English, Faculty of Languages and Translation for p roviding us wi th invaluable suggestions and important insights on translation. In addition. we extend our thanks to Dr. Muhammad Yahya, p rofessor of Lit~rary Criticism at Faculty of Arts, Cairo Un iversity, for his edilorial nsistanct". Thanks are also due to Dr.. Atlia EsSayyed . Atlia, lecturer in ElT and Applied Linguistics. Faculty of Education, AIM.har Unive rsity for having professionally edited this work and others. H i, pertinent comments and valuable touches at the final stage of writing the book added much to the final version of th~ book. Finally yet important ly, we thank Umm Abdullah, the native editor, who exerted great effo r ts in editing the book, and wit h whose final touches she made it mo,"" appea ling to the target audience.

Pub6sMr
Sulaiman A A1malman .

Translator's Preface
This book is an English translation of shdkh professor S!lih AI Fawzan's '"' ';'.. 11' A Summary of 1slamic Jurisprudence: DAr Al' kimah. 2001 (ISBN:3967121), Our main aim in providing th e English translation is
~.

propagating the true Da ' wah that derives from Allah's Book and His Messenger's Sun nah . Tbi. is a duty that evuy Muslim should cherish. Allah says: HAnd /1 that be [lIrisingl from you 11 nation inviting la {all fhut is] good, tnjolning what is right imd forbidding what I. wrong. IInd tho.e wil/I>e th~ ,uCCU$fuJ,~

(Alu 'lmran: 104), With this in mind, this translated work is. then, a humble

"".p<mse to our realization of a gl"C'at responsibility to give the English speaking ""ad acC<'&S to rich Islamic Jurisprudence Literatur. that simply focuses on
the rules of jurispruden.:;e and their proof~ from the Qur'~n, Sunnah and the practice of the Righteous Salaf in addit ion to the opinions of the scholars of jurisprudence on controversial issues as well as the proofs they quote in support of their opinions. In doing so, we have left no Slone unturned to make sure that the final copy of a translated hook meets a sp<:cific high quality standard that would con""y the same meaning intended by the author and e~pressed in the original SOurCe te~t. In effect, we ha"" tried to ",t a balance between th e originality of thought and the nature of the style ofIanguage. To attain this aim, nur work (in this hook and others) exhibits certain distinctive features, namely, the process of translation. the style, the atlention paid to the soc iolingu istic aspects (i.e., transliteration, glossary and endnOles). We touch upon these features in the following section.

I.PROCESS
Before reaching the publisher, our work goes through a developmental process to guarantee that the final version of the translated hook is as p<:rfe<.:t as can k. In effe<.:t, this process commenC.eS with th e first -hand translation, which done by some very carefully ch<>Scn translaton who are n.tivespcaken of Arabic and have a native_l ike command of the target language. The main principle that governs t he translation process is that the translator is after integrity. With integrity as the main target, th e translators would not be tempted to impo'" their own idea< on the lext nor would they glos.s over the difficult paragraphs inuead of taking the trouble to find out what is really meant. Translators would do th eir best to convey both th e content and spirit of the original.
i.

The next st(P of the process i. undertaken by a reviser who has a high profile in translating religious texts and is a"" re of the traps that one might fall into. In addition, he has a thorough religious background knowledge that enables him 10 detect any unintended error in conveying the meaning. The revised version is then submitted to a picky editor who is well-versed in the target language and has substantial knowledge of Islamic Sciences. Finally, the edited version is handed over to a native ' srcahr of English who is knowledgeable in Islamic Sciences to make su re tha t the translation is readable and meani ngful to the larget audi ence.

2.STYLE
A natural outgrowth of the processes adopted in translalion is the style the fina l version has come out in. Th. intended mean in g of the anthor has bten conveyed in a style that is authentic and as dose to the original as possible. It really sounds authentic, So natura l that the work does not read like a translation, but an indigenous piece of writing. The translatjon version is marked by remarkable variety and richness as well as tremendous skill at writing within formal religious genre. Moreover, attempts have!J.e.en made to have it simple, dear and appealing to the target audience.

3.ATTENTION TO SOCIOLINGUISTiC ASPECTS

As a way to fiJJ up the gap caused by sociolinguistic differences bttween the two languages (source language and target language) , our work includes some additional featuros (i.e., transliteration, glossary and endnotcs) that would guarantee ben~r understanding of the concepts and ideas that might confuse tile English speaking reader due to the lack of schemata ill this field.

A, TRANSUTERATION SYSTEM
In the process oftr~nsl~tion , we made a se rious attempt to limit the uS(' of transliterated Arabic lerms (see table in p. Xl to the following two situations: il There is no Engtish expression that can reflect the same meanins as the originallerm. ii) The Arabic term is of such importance thal it is essential 10 fami liarize: the reader with it. 8 -GLOSSARY At the end of the book, we have induded a glo.<sary defining common Arabic terms that fulfill the above criteria. Included in th e glos>ary also are lerms t hat need furlM" explanatiol"l.

svii

A Sum"",.,. of Isbmic J~

C-ENDNOTES
In the end notes, wc have gi~n clur and concise explanations of the terms that au nO! eluror understandable to the target u ader d ue to the 5OCiolinguistic diffeunces in addition to the co mmentaries written by th e author himself, Furthermou, each badith rrn:ntionw in the tnt oflhe book is ascribrd in Ihe endnotes 10 the book il is qUOted from.

the reader's time, we ha-.... ineluded two indkn. namd \" subj1 i nde~ and name in~. So. if the reader is looking far specific in formation or a giv... " name, ~he would go directly to the index to find the page numher.

D-INDlCES To facilitate the proc::ess of going through the book and

sa~

4, QUR'AN TRANSLATION
The Qur'in is Allah's exact words.. These words ca n never ~er be exactly translated inlO other la nguages because 0(, among OIlier things. possible misinterpmations and li mited human understandins . What is followc-d in the book is 1 translate t he meanings as undeQlood by Muslim .s<:holars. We 0 solely dq>ended on the ' Tra/U/QUon of the MMnln, OJI"'" Qurlln: tr.mslatfd by Saheeh Inlernatio",,1 _ Riyadh and published by Abu lqasim Publishing Houu. When a VeTJe i, dted, the English interpret ation is given between quotation marks . ..... in indented, bold, and ibl iciud formal. The location of the Qur'anic verse, the name of th e Sun is given below to Ihe verse as il is i11ustnted in the nampk below: -Ami 110.. N'nl " 01 INfon you a"y mSN'''V' aupl that We rewtI/ed ta Ioim that there h lOO .mIYaJ>l ~. 10 wonhip Me.(AI-Anby;1o': 25)

5, l:lADITH TRANSLATION
Sim ilarly, when we cite. aa,/ith, w~ mention the book of !Jnd,~h it is quotW from in add ition to 115 number in the book. Further, the Inn,lal"'" of Propllctk !Jm/ith is represented in .n indentW format, italk ilW and between qUOIltion marks ~.. : as it is iIIustntw in tile example below:
sim ilar bowls (i.e. bowls mllde of gold or silllf'r), for they /If /ong 10 Ihrm (/ht disbelitvers) ill th is world Imd /0 U5 in Iht Hrrt!ajtt r:
"00 1101 drink ill
ClJt In

gold or silvn- _t. ..0,

PART

INTRODUCTION

All pnise be 10 Allah, the Lord of the Worlds, and peace be upon our Prophet Muhammad, Ihe Seal of prophets, and upon his household. his Companions, and whOf'""r follows tu.,ir example with good cond uct until the Day of Recom~ns".

To commence, this is a brief accoU!l\ of juristic is.sul'S, in which views are

provided with proofs from the $uMMah (Prophetic Tradition) and the Qurln. I have previously delivefTd the wntent of this book in the form of sermons broadcast on radio, and 1 have bun re~atedly asked by the audience to redeliver them, and to publish them as a Ireal~. for the sake of w ntinuous

benefit. if Allah wills. Infact, ! never intended this book 10 bepublished when it
was underp"'paration, but in respon~ to the wish of many people, I reviewed it. arranged its contents, and P,""StnlM. it to ~ published. And her~ it i. now, gentle ",adcr, between your hands; whatever cor",ctness and ~ndit you find therein ar e out of the Grace of Allah, Alone, and whatever mistakes you find are mine, and l.uk the forgiveness of Allah for them.

A Sun,,,,.,y of lrumic Jurisprud<r>e<

Th i. treatise is an ahstract of a hook entitlrd A r-Rawdul-Murb;' fi ShariI ZAdu/-Mustaqni' including its footnotes, written by Sheikh' Abdur-Rahrml.n Iho Muhammad Ihn Qbim (may Allah have mercy on him). bearing in mind that [addrd some remarks, when necessary.
I askAIJah. Glorifiedand Exalted be He, to gu ide usall to useful knowledge

and righteous dews. May Allah confer peace and blessings upon our Prophet
Muhamm ad, his household, and h is Companions.

The Virtues of Understanding Religion

All praise be to Allah, Lord of the Worlds, and pea"" be upon our Prophet Muh.mmad, and upon his household, his Companions. and whoever follows their "xample with good cond uct until th e Day of Recompense.

To commence. understanding the religion is considered one of the best dud .... and a sign of goodness. Th: Prophet (PBUH) ~ys:

'if Allah wants to do goodfor a person, He makes him understand the religion."'
This is beause comprehending the religion leads to useful knowledge upon wh ich righteous deeds depend. Allah, Exalted be He, says:

a/ t is H e Who has sent His Mtsstngtr with guidance alld the nllgion of trllth ..." (Qur'an: Al- Fath: 28)
"Go.Jidance" here refers to useful knowledge, and "the religion oftruth" is that which leads to righteous deeds. Besides, Allah commanded the Prophet (PBUH) to invoke h im for more knowledge; Allah . Exalted be He, sa id: .... , And say, 'My Lard, increase me in knaw/t dge: " (Qur'an: nhl: 114) AI-Hif,", Jbn Ha;ar comments that the aforesaid Qur'anic ,erse,"... And say, 'My Lord, jnrreDJ' me in knowltdgt ,'" is a dear indi cation of the merit and excdlenc. of knowledge, for Allah never commanded His Prophet (PBUH) to invoke Him fo r mor<: of anything other than knowledge'. The Prophet (PBUH) used to r<:fer to the assemblies wher<:in useful knowledge is taught as "The GMdens of Paradiu," and he (PBUH) stated that "Men of knowledge are the inlleritoll of prophtts."

,
The.., is no doubllhat before one staTU doing something one should know hOWlo on it in the b6t way.was to p(rfonn it wdl to h;orva;1 itsdesired fruits. U~wise. it is by no means rnsonable that one Slam worshipping one's Lord - the way through which o ne', ""Ivalion from Hellfireand adminanu 10 Pandise are gained - without hning d ue knowledge.

petro,

As su~h. pwple are divided into three cutegor ie~ regarding k nowledge

and duds;
Th e firl! category i~ repre~nted i n th ose who combine useful knowllge

along with righteous deeds. Thoseare thrones whom Allah hasguicled

10 the straight path; the path OfthOK upon whom Allah has bntoweG favor ofthe prophru, the slndfasl affi rlTlel'$ of truth. the martyrs and the righteous. and excellent ind<l are t~ as companions..

The $f:'Cond ca1e&ory is rep~nled in those woo learn useful knowledge but do 11<)1 act a.ccordingly. ThOK a", the one5 who haY<' rvoked Allah', anger.like the Jews and whoever fol lOWSlheir foomeps.
The third category is repr=ntN in tho~ who act without having

knowledge. ThO!ioe an the on("S who ar t .stray, namtly the ChriSliam and their likl!$. These three catego ries are mentioned in th e Sura of AI- F<l tihah (the 0Mnj"g Ch<lpter of the Qurlln), whi.ch we recite in every mk 'aM (unit of prayer) of our prayers:
"Guide "" to tht "might /H'th - tht polh of Ih_ upon wTwm You h"u MsIOwN f<ll'OT, ""t.of Ih,," wh" h""" t ....bd [ Y ou,} <lllIV "r "f th_ wh" <lTt tU/ray." (Qur'in: AI- El.lihah: 6 -7)
In his inlerpTtlat ion oflhe aforesaid verses oflhe Sura of AI-Mtiullh, Sheikh Muh. mm. d Ibn ' Abdu l-Wahhi b ( may Allah haw: mtn:y On him) hu stattcl:

"nle sdtoItlrs IIUIIIlI in the .... ,-w t/lar reil/Is, 'th,," who h""" ~ (Alt.. h~) ""K""' <lrt those who do not IK"/ in acforJ"nCt with their knowltd~, <lnd ~ Iho" who "rt Illlr"y' art the "nu who act wilhout knowlrd~. The forme r is the quality of tile Jews, while the lmter is thal of the Cll risliant. :wme ignorll", /'fople mislilkenly />(>lieve thal Ihou /11'0 qualities art restricted /0 Ihe Jews and the Chrisritlns, jorgdling IhM Allah <omm"nd. tlttm 10 recile IlIe II/>ovementioned Quran;, invocation wing rrfug~ with Himfrom bdng one of the

A Summ.,y of id.mic J>.Iri'l"ude",,"

~ople Of these two q~lllilies.

Glory Pe to Allah! How do those igHoran t people think that they are 'afe from tl,est qualities. though they,,,,, taught and commanded by Allah 10 keep on invoking Him (through Ihe afoTl'Sllid verses) seeking His "'fuge against them!! Are they nol Ilwa", that they thus rllSume evil about AllaM!"'

This shows th e wisdom behind t.he obligation of re<:iting th;, guat Sura (i.e . A/Pdtil!ah) in every rak'ah o f our prayers (whether obligatory or supererogatory), It is because this sura contains many great sec",ts. among them is the great Qur'anic invocation that reads, "Guide u. to thutraighl path - the palh of thou Upoll whom You h~v, be.towed favar, nat af thou who have evoked {Your} anger or of those wha an astray." (Qur'An: AJFMihah: 6-7) Through this invocation, we ask Allah to guide us to follow tbe conduct and the way of the pe<lple who have us",ful knowledge and perform righteous du ds, which is the way to salvation in both this world and the Hneafter. We also invoke Him to safeguard uSfrom the pathway of the ones astray. who have neglected either the righteous deeds or the useful knowledge. ThUs. we could argue that useful knowledge is that derived from the Qur'an and the S~"nah (Propheti' Tradition ). It is gaintd by means of d('(p undemanding and comprehension of both, wh ich can be achieved through the help of religious instructoTl or scbolars. This can also be achiev" d through the books of exegesis of the Qur'~ n and those of Hadilh, as well as the books of jurispru dence and those of Arabic grammar _ the language in which th" Qur1n has bun uvealeJ. Such books are the best means of compuh"nding the Qur'A n and th" Sunnah.

So as to perform th e acts ofwoTlhip so perfectly. you ,hould, dear Muslim brother. learn what leads to the pe-rfection of your performance of th"" various acts of worship, such as Prayer, Fasting and Hajj (Pilgrimage). You should also be aware of the rulings on Zakdh' as well as the rulings on the dealings that concern you, so os to m ake us. of what Allah ha. made lawful for you and avoid what He has made unlawfu l. You should observe this to erume t hat the mon"YYOu earn and the food you eat are lawfully obtained, in order to be one of those whose suppli cations are granted by Allah. In fact, you have to know about all these matt" ", and thi s could be easily achieved. Allah willing. provid"d that you have rewlute determ in ation and sincere intention. So. be m n on reading useful relevant hooks. and keep in touch with religious scholars to ask them about whatever ruling you are in doubt about ilIId to be acquainted with the ruling.1 of your religion.

Introduction

In addition, you should take an in t.erest in attending religious sympos iums and lectures delivered at mosques and the like, li!;tening to the broadcast rdigious programs, and roading religious magazines and publications. If you concern yourSl:lf with such good activities, you r religious knowledge will incroaSl:, and your insight will be enlightened. Also. do not forget, dear brother, that knowledge increases and grows when it is practically applied. Thus, if your deeds aro according to your knowledge. Allah surely will increaSl: your knowledge. Thi!; cor",sponds with the maxim stating, ~He whOSl: duds aro done in accordance with his knowledge, Allah will bestow upon him the knowledge of that which he ha.< no knowledge about." This is confirmed by th e Glorious Qur'ank ve= that roads:
".. Andjell' Allah. And Allah t eaches yau. And Allah i5 Krwwing (Qur'an: A1-Baqarah: 282) ofllll things."

In fact, the worthiest thing to spend your time on is Sl:eking knowledge, for which the ~ple of good judgment compete. It is through knowledge that hearts maintain living and deeds are purified. Allah, Exalted be Hi!; Words and Glorified Ix His Attributes, praiSl:S the scholars who act in accordance with their knowledge, and states their elevated degrus, as He mentions in His Glorious Book, the Qurln:
"." Say, :otTe IhMe who know ",qUill to those who do nOf knowl" Only they will remember {wlw arel p~ple af understanding:

(Qur'An: Az-Zumar: 9) Allah, Exalted be He, also says:

"; . Allah will rllist Ihose wlto hllw be/iewd Ilmongyou aM tlw,e who wue giwn knowledge, by degreu. AndAlIllh is Acqullfllted with what you do. (Qur'ln: Al -MujAd ilah: 11 )
So, Allah, Glorified and Exalted be He, shows Ihe merit of thoSl: given

along with faith. and td!s us that He is A<:quaiot.d with ~nd Aware of whal we do. Thus , All ah shows us the necessity of combining both knowledge and righteous deeds, and tc:lls us that both have to be out of one's sincere faith and fear of Him, Glorified be He. In accordance with the Quianic duty of cooperating in righteousness and piety, we will - if Allah will s - provide you, gentle reader, through this book with some information of the juristic inh~ritance which Our scholars

knowJ~dge

,
e~lra"erl

A S"mmuy of bl"mi< Jur;,;pr...dol>

and wrote down in their books. We will provide you with what

can be easily understood, so that it can ~nefit you and help you in gaining
more useful knowledge.

Finally. we invoh Allah to J>.,s!ow useful knowledge upon all of us, and 10
guide u s to the righteous d.,.,ds. We also invoke Him. Glorified and Exalted be He, t o make us see the truth as it really is, and guide us 10 follow it, and to Stt falsehood as it really is. and grant us the ability to avoid il, He is Hearing and Responsive.

Endnotes
I AI Bukh1rl (71). Muslim (2386), 2 s.. Fathul.Bdri (11 187) 3 Seelbn Ghannlm', Tdrlkh Najd. 4 Zakdh is an m nual <J[ptnd;1Un: for Ill< benefit of tile Muslim oommunity, primarily to help t he poor. ~ ui"'" from ,ha Musl; IIU who ha,.. ox""," _allh. Payin,Zal.lh;'; on. of the five mo in p; lIars of I". m (for morr "aborat",n, ",fer to the chap .. , on ZoUh).

CHAPTER

Trade Transactions

Allah, in Hi.,
hi' honorable

Nobl~

Book, tb e Qur'an, and the Prophet (PBUH) through

(Prophetic Tradition), pointed out the ruling'
Oil

Sunn~h

tr.nsaction& because of pwple's need for th em; people in general need food. dothes, houses, vehicle.~ and other ne.:es.,ities of life in addition to different luxuries which are obtained through trade. Trade i" ~rmi .. ibl. accord ing to Ih . Qur'ln, ~u'm<lh, consensus of Muslim scholars. and analogical deduction.

Allah says:
H

but Allal,

ha~ pm" itt~d

trade... ~ (Qur'an: A[- Baqarah: 275)

And:
~Thtrt is no blame upon you foe setklng 11O""'y from your Lord (during Hajj)..... (Qur'~n: Al -Baqarah: \98)

"
Thoe Prophet (PBUH) said:

l,TRADE TRANSACTIONS

"The seller and the buyer haw the right/a keep or rtturn goods as long as they have no/ parted. if bOlh parties speak Ihe truth and point OUl rhe defects Imd qualities (of the goods), then they will be blessed in th eir transa<fiol1. But if they tell/ies or hide something, then tht blessings of their tranUlction will be destroyed."'
Muslim scholars uniformly agcN' on the permissibility of trade in general.

Concerning analogical deducti()n, trade transactions are permissible

bause !"'opl. '. nu ds are interd ependent, and !"'ople grant nothing for nothing. A person does not give what he has, money or goods, in return for nothing. sO wisdom ne.;essitates the permissibility of trade in order to enable people to get th . ir n..,d .

Trade transactions can be validated by means of a verbal formula Or an actual on~. The verbal formula ~xpr~sses the seller's verbal agreement On the sale wh~n he. for ~xample. says to the buyer. ""WH. I sell it to you" and the buydsverbal acceptance when he. for example. says. "And I buy it". The actual formula is the act of achange itself. when the seller is given the usual price and the buyer takes the commodity. without any verbal declaration. Sometimes a trade transaction is validated by means of both verbal and actual formulas. Shaykhul-Islim Taqiyyud-Oin (may Allah have mercy On him} said,

"There are some ways of txch~nge. First. when the seller gives only ~ verbtd acceptanc< and the buyer takes the commodity (without declaring his acuptance). For nample. a seller may ,ay to the buy". 'Tau this piece of cloth for a din~r: ' and the buyer takes it (without sllying g word). The lamr ruling applies when the price is a giYfn material;farexample, thesdler may ,ay to the buyer. "Tah this piece of dothfor you rs" and then Ihe buyer takes il. Second. when Ihe buyer declarts his acceplance and the ..lIer only gives him the commodity whe/her the price is a gi""n material or the sale is on credit (.md the bUY'T is honestly guoTonteed to pay). 11,;rd. when neither the seller nor the buyer speaks (a!>oul the price) for Ihere is a custom to Ihat effed.~J
The..., a,.., ""rtain conditions to be fulfilled (""me related to the two partie~ while others to the commodity) to make a trade transaction valid. lacking any of which invalidat~ the transaction:

"
Conditions Related to the Seller and the Buyer
First: Mutual Consent A trade transaction becomes invalid if either the seller ur the buyer is unjust ly forced tn condude it. Allah, baited be He, says:
"... but " ..Iy [in lawf ul} busintSJ by mutual CO'Utllt ,"
(Qur'an: An-Nisa', 29)

Mo,wver, the Prophet (PBUH) said:

"&lIing should be ol1ly by mulual consent:

(Related by Ihn l:IibMn, Ihn Mljah, and other compilers of i:ladilh)'
However. a transaction conduded through just compuls ion is d..,med valid. as in the ellM' when the ruler (or the one in authority) (orces a bankrupt person 10 sell his remaining prop"rty in order to payoff his debts.

Second: Being fr~. having reache<! puberty. being legally accountable. and being sane: A trade transaction becomes invalid if either of the

sdler or the buyer

i~

a minor, a foolish or weak-minded person, an

insane person, or a slave who has nOltaken his master's permission (10 conclude the t ransaction). Third: Being th eowner{oftherommodityorthe money)orarq>",,,,ntali,,,, ofth., owner: The Prophet (PBUH) said to Hakim Ibn HizAm:
"Do nor sell whal you do 1101 hllve (or poSSNSr

(Related by Ibn M~jah and At-Tirmidhi who deems it a ~ab.ib (authentic)

badrth)'

AJ-W r said: ul
Scholars agree that it is impermissible fo r a Muslim 10 sell whatever is 110/ pment wirh him ur whatever he dON not possess, and then goes out to buy thal thing/or hi. customer, for this is a void trtlde transaction."

Conditions Related to the Commodity

Fint: Being absolutely lawful to~: It is impermissible to sdI whatever is prohibited for a Muslim to make use of, such as intoxicants, the flesh of . win e. musical instruments, and dead animals. The Prophet

(PBUH) said:

"

I: TRADE TRANSAGnONS

"AI/tU. and Hi5

an/mills.

M~(1t8"'

prohibittd Iht

l1lld~

of ;nt.rucan/$,

d~

pigs. /md idols."

(ReL.ted by AJ-Bukh1ct and Mullim)' He (PBU H) also said:

"Allah prohibit~d j"toxiCQntf and thtir (galntd) prices, dead Imima/s

ond their prices, and pigs mid r/lfir prius."

(Related
(t

by Ab\J D;\wild)'

is .1$0 illegal to sell the impure fats (or the onn affected by impurity)

for the Prophd (PBUH) ""id:

"WhCllllllah prohibits wmellting, Ht prohibits the price paid/or ir."'

Also. Al-BukMri and Muslim related

tm.t thr Prophd (PBUH) was

asked,

"0 Allahi MImf'''ger! WIIIlI

.woul Iht fal of dtud animals. for it is

lIud for grtil$ing tht /rwts fln,ltlle hidtS, ilnd propk USt it (as oil) for
IDmps7" Ht (PBUH) replied, 'No. it js prohi"ittd.'

Second, The price ~n d the co mmodity mu" be ava ilable, (when th e trade transactio n is concluded), for any unavailable commodity is considered nonexistent and i. ill~Sal to bt sold. fur . umplc, it is illcgl] to sell a fugitive slave, a runaway camel, or a bird in the air. likewise. it i. illegal for a Muslim 10 s.:ll something taken by force except in Ihe p~nce of the 0 .... who look il forcefully. or 00. wt.o is able 10 I1$lon: il (such as Ihe police or a judge or the like. to guaranl.., dcli~ring illo the bu~r).

Third: The pria lOO

tl\( commodity must Ix known to tM sell~ and burrr, for hiding any is rrgankd as fraud which is prohibited in l5Iam. Theftupon. il is invalid for Ih. bu~r 10 b... y 50melhing h. does not see or n:cogniu,and forlhc sellcr to sell an .nimal embryo in its mother's

womb or milk in udders. sepanlely. Also. Ihe sellinS syslems ca lled muI6masah ' and mu"dbadll<lh" are prohibited Abii Hurayrah (may AII 3h be pleased with him ) narratl'd:

"Tilt Messenger of Allah (PBUH) farbadc s..i1ing /ry mulamllsah IInd

mun"badlltlh:

(Related by AIBukhari and Muslim)"

Chap,.r 1; Tttde T",n"",,;on ,

Selling by h~<lh (stone). [ik~wise, is prohibited; it is another type of sal e which means that when th e buyer throws a stone at a certain commodity displayed for sale. he has to buy it at the price decided by the seller.

Endnotes
(2079) [4139 1J and MmUm () 836) 151416]_ 2 Dinar: An old Arab coin thiit cquaIl4.~' grilnll <.>f gQld. l S- 'M~jm~ 'ul-Fmdll'd' 12917-81_ 4 tbn M1joh (2185) [3129 ] and lbn jjibb~n (4%7) [111.J40[. 5 So~i~ (authentic) /iadith i~ a lIadith wh<>s< chain of lrln,mis.;ion ha, bun tran.mitted by truly pious persons who h,,'e bun mown for lheir uprightne.. ond euctilude , .u<h o /1adith i< ftte from .eentridty and blemi'h. 6 Abtl Dlwtld (3505) (3/495J, At Tlrmidhl ( 1235) 13/5341. An_Nu11 (4627) (413341 and rbn Mljoh (2187) [3/301. 7 Al - Bukh~r! (2236) 1415351 .nd Mn.t im (4024) [6/8]. 8 AbY Diwiid (3485) [JI487 1. 9 Abn Dtwiid (3488) (31488]. 10 Muidmasa/!, A way of selling used 10 be practked before (.t.m, it m .. n, thal when ,he buY'r to""h .. .omrthing di<plaY'd for .. le. he ha. to buy it at the price de<ided by the ~ le,11 Mundbadhah: A way of ~lIing u,.ed to be practiced before Warn; il mean, th.t when the buyer throw .omething to lhe .. ne r. the buyer ha, 10 buy il at the price decided by the .. Uer. 12 AI BuWr! (2146) [41453 ] .nd Mu.tim (3780) [51393 1. I
Al-Bul<h~r!

CHAPTER

Prohibited Trade Transactions

Allah. has ..... de trade pfrm;$.$ibk for His """'onts as long"" it d oe! no! them 10 miM wlu t i5 rno~ usriul and much important, such as an obliptory act of worship. TI'1I<.k " also p=nissiblc SO Ion8 as it does not calLS" any harm In oth'""'-

ca~

It Is imptrmj~s ible for. Muslim UPO" whom the }"m" (Friday) Pn)'C" is obligatory tn buy Qr sell after its second pra~r call (adho:lll). for Allah, Exa lted be He, says:
wh." [flu. .. alrtl .. } u ",.dIM for the prrt.)'t. 0" 'h~ 01.., "" / ....... ..h [Frid""J, ,h",,, prtJcud to IM "",""Iot"nrt of All"," "lid u.,w m.dc. 11u>11I klt...- foT you, if J'9Uonl.,kM"',~ (Qur'An : Al ' Jumu 'ah: 9) "0 who
h.n~ I>tll.~.ul,

'a"

yo ..

Thus Allah, Glorified .nd Enhed "" He, has proh ibited I....&. when lhe pray<" call for the lumu . ah (Friday) Prayer i. d ecla red le" Muslims sh ould b<"

too bu~y with tl'llde tn attend the Prayer. Allah has mentioned trade in p~rticular

I: TRADE TRANSACTIONS

as it is one of the most important worldly activities that occupy people's times, as most people earn their Hvingthrough track, This Divine prohibition impHel; that trade is prohibited and invalid at such a time (when the Jurnu 'ah Prayer
is due). Then Allah, Glorified and Exalted N: He, says, "TlUlt ~ferring to leaving trade and attending the Jumu 'ah Prayer, "Is bdUr for y.lI,Hthan N:ing occupied with trade "if you only kntw~ your own good and inte~sts. Likewise, it is prohibited for a Muslim to b.. occupied with any worldly activity, not only track, at the due time of Jumu'ah Prayer.
H ,

It is impermissible for Muslims as well to Jet trade or any other worldly activity divert them from establishing obligatory pra~rs after hearing the prayer call. Allah, Exalted b.. He. says: "{Such nich.,.. are] in hallUJ [i.t. mOJqueJ] which Allah hili o'llfred to IN! rai.ed and thot Hi. Name be mmtloned {i.e. praiJlld] therein; aa/ting Him within them in the morning and tlu ",,,,,ning>. [A~J men whom neither comme"", nor . o/e di.tnu:ts fro'" the remembrance of Allah mul perfonnan" of pra)"" and givingofZalulh '. They fear a Day In which the heart. and eye> will [fearfully} turn about - that Allah may reward them [according t01 the best rljwhat they did and InCTNst them from Hi. bounty. And Allah gives provbloJ1 to whom He wills without occount {i.t. Umit}.H (Qur'an: An -Nur: 36-38)
It i. also illegal to , d l anything which can be used for disobeying Allah and commiUing a sin, To illustrate, it is illegal to sell certain fruit juices to whoever use! them for making intoxicants, as it would be cooperation in sinning. Allah, Exalted be He, says:
"... hIIt do not CfXJperate in sin atuJ aggrtuion ...

(Qur'1n: AI-M1'idah: 2) This kind of sale i$ cornidered cooperation in aggression. Similarly. it i$ illegal to sdi w~apons, armaments, and munitions at th e tim e of dissention among Muslims lest they might be used ror killi ng Muslims; the Prophet (PBUH) prohibited Muslim, to do so, .nd Allah, Exalted be He, says: "... but do not (ooperflte in .in and aggression ..
(Qur'~n:

Al-Ma'idah: 2)

In this connection, Ibnul-Qayyim said:

All legal prooft demomlrate tilm the validity, legality and ~rmis.!jbility of ~ SIlI~ an! also affected by intentions and u,age. For example, on~ is prohibited from ~e/ling 50m~one ~ weapon if onc knows that he would

"
we it for killiHg a Mwlim, as this is cotlSidtrtd COOpmltiOH i" .sin and <lggm.lioll. H<m...wr, if a Muslim $dh <l1W<Ipon /0 JOmtont who fights ill fM Cauu of Allah, i' is coruUkml (for the wkr) " sign of obMitlKt alld ,u",,/;on 10 "lUll!. cm I~Ofhtr IuInd. it is impermissible 10 m/_pons 10 thou whofigh! Musiinu M those who use thtmfor

highway robWr),. as it is rtgarded as WOfHration in sill."' Muslims an not ~rmined as well 10 cancrlthe sales of one anotoo. I'<:or
eumple, a MusJim KUer maYRY 10 a custom~ who has ~id Itn pounds for an

item from another seller. -] an sdI you a similar piece for only nine pounds,
or"j can sell you a hfiler one for the same pr ice." This is prohibittd for the

Prophet WHUH) wd:

"You
IIIIISI " 0'

try

'Q (/lnullh, ""la ofOllt o"o/hno:

(Related by AI -Bukhlrl arwl MwJim)' The Prophet (PBUH) also said:

"A Muslim muSI nollry 1 ,,,"celllie sa~ a/his (Muslim) brother." 0

(Kdattd by AJ -Bukh5r1 and Mu.Jim)'

il is impermissible for M,,~im' 10 cancel the purchases of one another. For instance, a Muslim buyer may say to . seller who has sold another Muslim a commodity for nine pounds, "r Cln buy it for ten pounds: or the lil:. Nowada)'$, many a prohibitM trade tranp,ction like the .fon:mo: ntiolled ones OCCuR in thr m~tS of MuslinlS. So. a tr~ Musl im mllSl avoid such violations, forbid them. and showdisap~1 oftho:;r: who comm it them. Among the prohibited trade transactions i$ that made by a town dweller on behalf of. desert dweller, for the Proph et ( PBUH) said,
"A t014l11 dwdln should nol tralk 0/1

likewi~,

bdmljof a desert dweller.-'

r~at

Ihn . AbMs. commenti ng on this /Ladllh, Aid, "It meanS dwdlrr) should nOI act a.lllis (a desert dweller s) I>rohr.""
The Prophd (PBUH) airo sa id:

Ire (a town

"uave tJl{I people ulone, AI/"h wj/J gi~ them prol'iJionfro'" one
01110/ I

.n .. '

Thus. town dweller is prohibited t" sell Or buy on Nhalf " f a d<"$(rl dweller. In fact, what is prohibiTed ilThal a t"wn dweller g<lel to R de!.ert dweller and offers hu l<!rvice to buy Or sell something on his .,.,half. Yel, il becomes

permissible only if rhe desert d~ller is the Olle who comes to the town dweller asking him to buy or ~ll on his !>.rhalf.
Another type of prohibited trade is that called In ~h. in wh ich a sell er sclb a com modity on credit 10 a buyer and then buys it from him at Ih e same time 81 a I~r priu. kiT example, a tnder ",Us a car for M llty thoul<lnd pounds on credit then boo,.. 1 from IlK same man (who lIu just bought it) for 1 fifteen thousand pounds cash. ThUs. tile origi nal bu~r owe tMselIer tlWnty th01.lS;md pounds 10 b.r p;!id at the cl"" time. Th is kind of selling is proh ibited

"

I: TRADE TRANSACTIONS

as it is merr fraud and OIl( or llle furms of riW', In this way. Ihe Kilt. sells.
sum of money on c.edit for ,mother 0"" in cull, makins the commodity JUS! a mUlls offraud. The Prophet (PBUH) "'id:

"Ifyou sdlro on~ anorh . rwirh " nah. hold the lails ofco~ (i.. b.:come c>upi.d with worldly gain,). btcomt p/(<ljed with agricullun:, and givt up jihlld (fighting in the Ca~.<t of AIIIlh), Allah will mah disgrou preWlil <I~r you. Ilnd will nOI wirhdrllw il urrtil}'Oll return
(i_e. lllIhertJ 1<I,our
H~

religiorr:'
Ilm~

(PBUH) also p id:

"There will (ome 11 means of trade:

when people cOll$ider riM Ill wful by

Endnotes
I Zd4It is ... ann ...... pmdilu .. ~ "'" b<ndit oIlhe M<>tIim community. primuily 10 hdp lh< poor. ...... ill!d from !boo< M<>tIimswho ha~=......nhh.Paying z..t.llr ;,. .".... 01 .h. (j.., oWn pillarJ of lslam ( ro. moR"dobonliM. l'fft. 10 .... m.pk. on z..oA:4h). 2 Sth. fuo:t(not. in !bn Qbjm', book .nl~1rd A,..R.>"'" AI-Mu"'; '1(1)74/. 1 Alllukhirl (213'1) 14/446) all<l Mwlirn (.l4i1l ) l~lOO/.
4 Al- Bukhltl (5 (42) 19/249j.nd Muoli m (344 1) [5/201 /. S AI - 8ukhJrl (21 ( 0) 14/446] .nd MUlli m (380) ) [51201 /. 6 AI_Bukh:lrl (2158) 14/4671 a nd Musli m (.J.804) [5/4114/ . 7 Muslim (3805) [SI_I. s Rib.t: A ,....., ,hot indl>llet usury . nd uourious pin . nd inltf'eS!. 'I At.ol Dhriid (:w62) IlI4n].

CHAPTER

Conditions of Trade Transactions

Re.:urnnt are the conditions set by a seller or a buyer when concluding a trade transaction. Accordingly, it has be<:ome a nessity to study and tackle the dilTerent kinds of such conditions, pointing ou1 the legal and the illegal ones among t h em. Thejaqihs' (may Allah have mereynn them) defined a condition (of a trade transaction) as follows : "It is obligating one of th e two parties (of the sale) by th" olh er for Ihlf: benefit a/the latter." According to the faqlhs, a transactional condition is invalid unless it is
mad e at the t ime of the transaction and embedded in the transactional contract. In other words, a condition is invalid if made before or after

concluding the contract.

In general, the conditions in trade transactions are divided into val id ~onditions and invalid OMS.

], TRADE TRANSAcnONS

First: Valid Conditions

Valid conditions are those that do not contradict the obje<:tive of the contract. Such a kind of condition obligates its fulfillment; the Prophet (PBUH) said:
"Muslims must kup to the condition. they make.'"

Such conditions obligate fulfillment also bocause all ronditions in trade transactions are originally legal except for tho"" invalidated and prohibited by the Lawgiver ' . The valid conditions an: of two kind~:
1- The first kind of valid ronditions of trade transactions is that which ensures and consolidates the contract, and benefits the One who sets

mch conditions. Examples of such valid conditions a..., thoSl:' made by the seller such as stipulating taking a security deposit or stipulating surety; this surdy makes the seller f...,. from worry. Th ..., a..., similar valid conditions in favor of the buyer, such as stipulating delaying the payment or part of it for a spttified term, i.e. to pay it at a specific date. So long as the buyer is committed to this condition the sale is valid. A buyer may ... t a rondition roncerning a specification of the commodity, such as ..quiring a special brand or product, as people have different preferences. In such a case, the sale is legally valid as I,mg as the commodity meets this condition; otherw;..., the bu)"'r has th e right to cancel the contract or at least get a compensation for the missing stipulated quality. This compensation is estimated by comparing the v~lue of the commodity meeting the ""qu i...,d condition and the one lacking it, and then the difference betwe. n the two values can bo paid to the bUl"'r ifh. asks for that.

2- The second kind of valid transactional conditions is that in which one of the two parties stipulates benefiting lawfully from the commodity in a c. rtain way. For example, a seller of a house may stipulate staying the...,in for a sf'<'cific period. or a seller of a riding animal or a car may stipulate riding it to a certain place. J;\bi r (may Allah be pleased with him) narrated:
"The Prophet (PBUHJ sold" ("mel and stipulated to ride it ("nd it) until he reQcha Medina." (Related by Al -Bukhlri and Muslim)'
us~

This nadlth ,tates the permissibilityof selling an animal and stipulating riding it to a certain place; the ",me g""s for similar transactional ca~. An01hu example is when the buyer stipulates a specific work

to be done 10 the com modity, such as buying firewood stipulating that the seller should d eliwr it, or buying cloth making a condition that the ~Jer .mould :;tilch it,

"

Second: Invalid Cond itions

There are tw<I kinds of in\l;llid (onditio~
1- The first kind is the invalid illegal condition that basictlly nulliroa the Klling conlra e!. luch as when OM of the two part, ... stipulates annthtt' COnl1'a(1 within the main onc. For uample. il ;. an i11~1 condition when a Kller of a commodi ty makes a condition that the burn must make him his partner in busi ness. lend him ~ lium of money, or allow him to share his houK, etc., o r that he uys, "1 sdi you this commodity on the condition that you rent me yout home." Such

a (andi!;.;," is legally inV<lHd SI') it nullifies the o riginal contract. This is btcollSt the Prophet (PBUH) forbade conclud ing a selling contract based OIl another wnd il ion"i contract '. This Prophetic prohibition was interpreted by Im"m Ahmad Ihn Ii.nhal (may Allah ha~ ~rq
on him) enctly as ~ ha~ pointed OOt above..

2 The s.econd type of invalid transactional conditions is the one which itselfi , null and void. ye t it does not nullify the contract. For example. a buyu of a commodity may mili a condition t hat he will give it back ifhe undergoo:s Iou, or a seller of a commodity may make a condition that the buyer must not mell it. Such a type o f conditio ns is legally invalid u it violat~ the principk of a bU $inas co ntract that absolutely allows tne buyer to use the (purchaoed) co mmodity in whatever nunner he likn. TIw Prophet (PBUH) said:
~If anyone imposes a conditirm wh idr is not;n the Book of Alklh. thtn that condition is invalid , ...... n if he imposts onc hundred conditions,"

(Related by AJ Bukhbl and Muslim)' The phr .., "in the Hookof Allah" in the aforementionedb.adith refers to Sharf'ah (llIamic Law) induding tIK Qu rln and tM Sunnah. Still, such an inVlll lid t~ of conditions does not nulIi?, the cont ract. To illustrate. in the ~1Iknown incident of R.arln.h, the one who sold her made a condit ion that her .... I.t would go to him if ~ ",u emancipated. HOwevff. the Pmph<'t (PBU H) declared that tIK conditio n W15 null. yet he (PHUH) did not consider the contrad to bC' invalid. Then, th e Prophet (PBUH) said:

k TRADE TRANSACl'IONS

'Verily, th~ wal<l' is for the emancipator:'

A Ml.l5lim invol""d in businesses, purchasing and selling, should learn the l.gal rulings on trade !ran~actions as well as the valid and invalid conditions of any business deal to be awa..., of the legal situations io such dealings. Thus, Muslims can find legal solutioos to their controversies ...,sulting from trade transactions, most of which result from the igno ranee of the seller, the buyer, Or both, of such rulings, as well as the invalid conditions they set in transactions.

Endnotes
1 Faqih' A .d>Ol.r of bl.amic luri.prudence. 2 Aoo. D1woo (3594) [~/16J. Sec .100 At-T L rmidhi (1352) 13/634]. 3 "The Ulwgivcr ofShari' all (Islamic Law) i. AD.h. Exalted be He; the term can also refer 10 Ihe Prophet (PBUH) as h. ,,"ver ord.inM but .. hat rne.1ed 10 him by Allah . 4 AI_Bukh1ri (2718) [5f385 ] and (~074) [6132). 5 At-Tirmidhl (1234) [3/533] and An-N ..n (4646) [4/340]. 6 AI_Bukhir1 (2155) 14f467] and Mu,lim (3156) [5/380]. 7 . A'ishah'. Mu,lim f. mal I.Y<. 8 Wald'; "The r.... d 01 .....:. lo)""lly by .irtue of tmancil"'tioo. 9 AI-Bukhit1 (2155) J4I4(7) and MmJim (3756) [5/380].

w"

CHAPTER

Option in Trade Transactions

Islam is a lenient and eomp",hcmive rdigion that cares for Muslims' Interests and mitigates d ifficulties to make thi ngs easy for Ihnn. This is evident in the legal .uJj n19 concffn ing !r.ode lranacl iom as Islam givnnch oi tb" Jd k . and the buyer the choice 10 consider hi' own lnlnn! 50 that he can con firm what bcncfil. llim and C1lncdsout what appears 1 be agai nst his 0 Interest r~arding the !.a1C!. Option in s,llts mUD' 5tcking that which i! better in either the conclusion or the voidana of the SOII(.

There arc eight types of opt ion in trade tranSAction s:

First: Option during the Session

Both the sclIer and the bu~r ha~ the choice 10 confinn Or cancd the deal as long as they have nol Mp'ra,ed from IM place of th" deal, for the Prophel (P8UH ) said:
"Barh the b"y<T"And litt ulllr ha"" rh. op/ion (ofC llllc.UngOT <anfinnj"g

the bA,!ojn) "" 10"11 IIJ thty hA"" not P<lrl.d mId are"ill rr>g<tl","'

I TRADE TRANSACTIONS

His Eminencudtobr Ibnu.l-Qayyim (may Allilh

~TM

ha~

mercy on him) said:

~II

lAwgMr has orooilWl tM oplion during tM

while

=Iudillg tnuk ITtuIsadlmu for tk illUrt$l$ Df t~ hro p"rtia to t1Chkw fuU consent IInd wlisfiwlon which Allah Jtipuiat", III
when He J<Jys, ', by mut...,] <oll<nlL.' (Qur'an: An-Nis;l.:29) Sometim", ~ contract if concludtd without being rf'O"fid~rtd or rtviewed. Thertfort, th~ perfr Shllrf'ah (Isklmic Ltl w) 'Ieu~jtaus the ujjten~ af a flss/on durillg which the two pn rrln ran rtromidtT tht deal. Thut. lIuordlng ID tht d/(Jftm.ntiolltd h.adllh. borh rht selltr Ilnd tht bu~r ha-ve rh. chlllc. to cOllfirm or canul the deal 05 long 05 th., haw 1Iot stpamltd from IM plact 0fth. dud, H~. iflhe hropaflies 0' ~ oflhtm iFortS this O5/>1 of ClO"'t. IM dtDl is mll dtmled VIIlid (lit" il i, (oncluded. This cIIok. is Il righl maled to both tht. sdlu "nd th. buyer. "nJ tIIdr of Ihtm i. IlUoowd to Igntm" it ~ ..... long as tit., hllw II()/ partM olld "Tt still togeth.r, or 01lt of tht.m giws Iht othtr Ih. option (of /cuping Or ctmalillg the ""rxuinJ: aJ tltt Prophet (PBUH) J<Jid. HIlWt>'tr, it if prohibitedfor tach OftM two partits to hasrtll to k<lw th. other In ordtr to prtvtnl him/rom recontldt'i", thtdt<ll. 'Am, Ibn Shu 'ayb rtporttd fhm the Prophet (PBUH) J<J/d, :,.alld It is nol pt,mis.siblt: for on. of them 10 separate from the Ollrer for ftar tMf the klNt , may demand that th e bargain br rtsclnded:
tTIIllwctjOIlJ

.>'

Second: Option of Stipulation

The !WO plrlits can stipulate. during Or afin concluding the contrxt, that iI OO1aln puiod of option (to acctpl or ~ the dui) ilto bupedfied. Ifboth 01 them agree 1 thilt, Ihtn thq haw the right of option whctMr to ac<:qIl or rcj1 0 lhe dtal within the spKified period. 'This;1 baus.e the Prophet (PBUH) saki:
~Muslims m .... t utp 10 the (ondition,lhey m...u:'

Morwv.,.. the validityofthc option of stipulation i5 indicated in the II"ne....1

rru:aning of the following Qur'anic vene:

"0 you who how beliewd, [ .. Iftll (1l1I1 (~"tM""" (Qurln: AI-Ml'idah: 1)

However, it is petmissiblt for tOlch of the two pa,tin to nukt a special condition to scr~ h .. own intcrtsb even if the other does not make Iny. ptovided the other agrtn.. At. any ....tt. option Itipulltion is something that

or

concerns the Kiln and the buyer. and thq.~ IlIloww to U$t it in the wooy they lib providtd tM~ is mutual consenL

Third: Option in Case of Deception

If the buyn or the seller is gravely deceivw due 10 misjudgment of the sale. he is permittw to confirm or cancel the deal. The Prophet (PBUH) said:

"One should 1I0t harm othen lIor should Ollt sttk btlltfit for ollc>df b)' (~wjllg harm to othen:'
He (PBUH) also said:
"The proprrty of a Mwlim is 1101 lAwful (10 bt ra/erll) e:CCtpl by

his COllStlll....
None libs to be decrivW through the: sale, but if the MSlIlling loss is imignif'icant and ~Iy occurs among people. IM draivtd person has no o ption 10 CllIullhe: deal

The oplion in ase of deception or misjudgment lJ. applicable in Ih= CUd:

The

nnt cue is that of deceiving a stranger seller (or merchant) by

m~ling him before he reaches the market. If I Muslim entets inlo a buslne$i lransaclion wilh 5uch I stll er (or merChanl), and then Ih e merchant finds o ullhal he has be<n paid less. he legally ha. the option 10 canctl Or confirm Ihe Iransaction. Im~m Muslim rdated that the Prophet (PBUH) said:

"00 1I0t mct't" m=h""t 0/1 his ",,,),,,"d tiller inl" business II'IlIIS4ction ..,ith him, Whoevt7 mMS him "nd buysfrom him and Ihen rht oWlln of mtrchandise comes inlo Iht markel (and fillds Ihal ht has bun g'lid less). ht has Iht oplion (la drch!rr l/re Imnrocrionnul/IlM Wlid)."
Thus. the Prophet (PBU H) prohibill a Muslim to meet a stnngc=r (merchanl) before he reaches the: marb:L 'The Prophe:t (PBUH) teaches US th.1 if lOch a m erchanl findJ oultha' he: hll been paid less. he legal ly has,he: option 1 <11n(1 or confirm lhe t ransaction, 0 Slhykhu l-lsllm Ibn Taymiyah {may All ah have mercy cm him} md: "Tht Proph~t (PB UH) .tre.mi Ih~t a Jlr<lllgt"r (merchant) hru Iht option 10 c~M,tI or confirm Iht tmde transactloll if Ih' bu~r mttts him ouu;,u Iht markel (lNforr tht former kn(nO'J "boul Ih, ",nu mllrkct , ... Iut), fur

IIIJ a kind of dueption and fm~d:

I TRADE TRANSACfIONS

Ibnul.Qayyim (may Allah have mw :yon him) slated:

"This Irallsaction is forbidden as the buytrcolI d.ceiVfl the ..lIer merchallt,

willg tht latters UnawarentSS of the market mllle, alld pay him lesJ than what is dllt. Therefore, the Prophet (PBUH) giVI!J such a merchant the

right of option whelher to ca"cd or confirm such a deal whom he tnt/m the market (alld ktlows the rent marker value). Such a merchallts right of optioll in case of deceptio'l is illdi>putabIe, as he does 110/ ktlow the actual market valu efor his gpods, Gild, thus, the buyer is legalJy COllsidered deceitful. Likewise, a slrangn has the same right if he is ",Id "''''''thillg exceedingly more aptmi", thall that of the marlcet vallle....
The se<:ond C~ in which the option in c",e of deception il; applicable is that of najsh, in which the buyer is deceived and ensnaT<'d by the artifICial outbidding of a fake buyn This is an illegal act ... it involves fraud and dc<eption to ensnaT<' the buyer; such a kind of sale, najsh, was prohibited by th e Prophet (PBUH) who said, "Do not oil/bid in a sale in order /0 ensnare (others)."' A similar form of such a fraudulent selling is when the owner of the commodity lies to the buyer and tells him that he has been offered sw;h and such a price for his commodity or that he has bought it at sw;h and such (a price). Likewise, it is ...,garded as naj.h when the seller appa...,ntly insists on a certain price for his commodity, which costs much less (than this), so thal the buyer may take it for the highest price po!;/;ible. For instance, a seller may ask for ten pounds 10 sell a commodity that is worth only five in order to make the buyer pay a little le!;/; than ten. The third c~ (in which the option in case of deception is applicable) is that of a gullible buyer. In this regard,lm~m IbnulQayyim said:

"The Prophet (PBUH) "'Y'. 'Cheating a glllliblt buyer is (a kind of) riM'" ". A gullible buyer is a person who does not know the ,l(tllal value of goods and is not good at bargaining. Rather, such a penon, out of his kind naturn and inMoanC~, trust. the .ell~r. Thu., if such a buyer is grav~Jy dea ived through a sale, he has the right of option (whether to cancel the deal or not).""
Cknerally s~aking, ..,!ling based on deception is prohibited as il is a meanS of cheating the buyer. In some market> of Muslims, when a new merchant offus some goods for sale, the main market merchants conspiT<' and send One of them to bargain with the seller for a lower price. Thus, the seller becomes obliged to sell him the good~at a cheap

Cbarm i: Op'''''' in T...do: TrollS. ion,

price (as nobody oIse outbids). Afterwards, the buyer returns to feUow merchants to divide tbe goods among tbemsolv ... This is a prohibited sale for it is a kind of deception and injustice. In such a case, the deceived ..,ller has the right of option to caneol the deal and re.Wre hi. goods once be knows about the plot. Wboever commits sucb deceitful transactions must give tbem up and turn to Allah in repentance. Al.o, whoever is acquainted with tbe l.gal ruling on such sales must show hi., disapproval of those who practice them and report them to tho.., in authority in order to receive deterunt punishment.

" his

Fourth: Option in Case of Cheating

Cheating in a trade transaction means to swindle by making the oommodity's advantage visible and concealing its defect. In such transactions, the seller keeps the buyer in a state of darkness so that the latter would be unable to see the defect. There are two kinds of such transactional cheating:
1) Hiding the defect of the commodity

2) Displayiog the commodity beautifu lly in order to raise its price

AU kinds of cheating are prohibited, and the Shad'ah (Islamic Law) permits the bu)'!'r in this case to cancd the deal as he has paid th e seller for a fal.., quality. In addition . if the buyer had known the truth, he would not have paid that much. An example of such cheating is keeping camels, cows or sheep without milking for a long time before displaying them for sale to make the buyer believe that they alwal'" give a lot of milk. The Prophet (PBUH) said:
"Do nor ktep camels or sheep without millcingfor a Iol1g time, for

whoever buys such an animal haJ the option to milk it and then deci& whether to keep it or return it to the own" long with ont Id . Il of dates (in compensAtion for milking it):"
Another example of .uch t ransact ional cheating is hiding the defects of a hou.., or a used car di.played for sale to d:eive the buyer. A Muslim trader mu.t tell the truth about his commodity for the Prophet
(PBUH) said,

"The seller and the buyer have the right to keep or return goods as wng as they hae 110/ parted. If both parties sJnak the truth al1d poi'!t out tht defects and qualities (of the goods), then they will ~ blessed ill their tranmction. But if they tell lies or hide som ething, th ... the hlnsings of their tr~nsattion will be destroyed: "

,.

111IADE lltANSACllONS

ThUs, m Prophet (PBUH) stiles that telling tM truth (while buying or ( Klling) is a means to get Allah', blessin&, wherus telling lioes ClU&eS the bleMings to be <kslroyW.. That is to Py. a little money gained through tell ing the truth 1 blessed by Allah, but much ill -gonen money, gained through lying, has no 5 blessing at all.

Fifth : Option in Case of Defect

I1 is the option p o 10 tM bu~r m eaned or confi rm the ckaI brQux of drll. In this case. the commodity hu I defect bd 'tn pie and the iellcr has fK)t ~nlion..:l it or he knows nothing about it. The kp! principle that givn th e buyer that option in elSe of defect i. that I considerable def..." usual ly reduces thevalu e orthl' co mmodity or d~rc_s the materi. l of lhe commodity iudf. tn order to judge such. def...,t, the buyer should consult experienced, trustwonhy traders; if they consider something I defect, the buyer is legally pmnitted to caned the deal, and if they sec nO defect that reduces the value of the commodity or d1'H$H its material, the OO)'ff has no right to caned the draL Themo",. whtn the buyt"r disc~rs and ...,rifles the defed aft.". ronduding the dral. he ill kg~lly permitted to con fi, m the deal, taking due compensatioo (which is IM diffi,~nce in price due la this defect) for the \os.s caused by this defect, or to cancd the deal, giving back the commodity and taking back his money.

Sixth: Option in Case of False Price

This right of opIion is applicable in fou, cases:

1- v.'hen the Kilt , d.im$ that he will ~U the commodity at the SUn<' price he has paid for it, and then the buyer discovers dull the actuil price is mo~ or ltu than what the ~Uer has claimed.
2 When one claims that he will mal<e another hi s partner in a transaction, then th e latte r dl"ov." thatth., actual capital pul by Ihe fonner is le" than whal he has daimed.
3- When Ihe ..,l1t , dalm$ that he will gain only a cenain sum of mooey mort than what he has paid for the commodity, and then the buyt"r d~n thal the actual price is less tIwllhaL 4- When the "Il~ dums that"" will sdl the commodity for a certain sum of money less th an what he h... p~id fat it, and then the buyt"r dis<:overs that the Ktull price is less thin th at.

Ch'Fr "" Option in T..... T,.,,,,.",,,;o,,,

In th",,~ four """,,s, as long as the actual price differs from th~ pri"" mentioned by the srlleT, th~ buyer has the right of oplion whether to caned Or confirm th~ deal, according to one of the opinions of the Hanbal! School. The second opinion (in the Hanball School) is that the buyer has no option to can",,) the deal, but the deal will be hasrd On the actual pric~, not the false one told by th~ srller, and Allah knows best.

Seventh: Option in Case of Difference

If the buyer and seller differ about the price, the commodity, its amount, Or it. quality, and they have no proof, each of them must swear by Allah that he tells th~ truth. Aft~r that, each of them has the right to can",,] the d~a1 ifhe is not satisfied with the oath of the oth~r.

Eighth: Option in Case of Quality Change

b efo~ (concluding

Sometime a buyer purchases a commodity which he has ~en some tim~ the deal), and then he discovers that its quality has changed. In this case, the buyer has the right of option wheth~r to cancel or confirm the deal, and Allah knows best.

Endnotes
I AIBuWrI (2112) [41420] and Mu.slim (3833) [514151. 2 Ab;. DAw(ld (3-156) [314741. A! TirmidhJ (1250) [31550] and An-Nu l; (4495) 14/2881. 3 See: "f'ldmul.M~waqqi 'In ' (21307, 376), (l/Wl). 4 AbiI Diwild (3594) (4/16J. See also A! Tirmidht (1352) (3/6341. 5 A.hmad (2867) I iIlIJ] and Ibn Mljl h (234ll) [3/lOti) . nd (nU). 6 AbiI y. ' a (t570) !3/l4ll].

7 Mu.<lim (3802) (5/403]. 8 See the footnote <)/"" MRa.w/i AIMurbi' " [414341.
9 Mwlim (3445) [51302]. J() Rib.!: A l~rm !h&1 indudes usury and u.W"iou. gain ond int~re,!. J J Al l!ayhaql (10924). (10925) ond (10926) [51571].

12 See the footnote of ' Ar-R.>WQ' AIMurbi' " 1 4/435.436] . 13 S<I', A standard m .... ure rho! <qual. 2172 grams. 14 AJBukhir! (2148) 141456) and Muslim (3812) [51406] . 15 AlBukhlrl (2079) [4I39J I ' lid Muslim (3836) [514161.

CHAPTER

Disposal of a Purchased Commodity Before Receipt and Rescinding of Bargains

In thi, 'hapter. AUah will ing. we will deal with the ru lings on the lawful

dispO!;al of a pu rchased commodity before receiving it. We will alro i!Iustrnte

how the bargain is legally conduded and whe n it ~om ... ill egaL One should ~ aware th at it is invalid to sdi a purchased commodity before re;ving it whether it i. mea,un:d, weighed. cou nted. or measured by cubit, a. the Imdms asree. The same ruling appl ies to other kind, of co mmodities accord ing to the preponderant view of the Muslim scholars (may Allah have mercy on them). for the Prophet (P BUH) ~id:

"fie who I:>U)';l g food5tuff .hould not ull it until he has received it w;rh exact full mea,un: (Related by AI.Bukh~rl and Muslim) '

"

I TRADE TRANSACnONS

In .nother narn.tion,lt rnds, ".. . until ~ haJ mf'ivtd il..l ln Muslim', nar ration, i\ states, ... he hIU ~;ghed it.">

""'i'

Ibn . Abbb (may Allah be pleased with him) hid, "/ considtr that t",same ruling (of foodstuffs) is applied to all types of S<llt$. This ruling is direct ly st.kd in the Sunnah (Prophetic Tradition); lm~m Ahmad rdatnl that the
Prophet (P BUH ) hid:

When )'Oil bl/)' JOmerhi"g, you slrm.ld compkrdy rraiV't'd it.

MOf'roVeT. AbO Dlwild
~llled:

n(Jt

wU it until ,.,.. nllwc

"The Messenger of ....lIah (PBUH) forbade ulling the goods whert they all' boug/lt wrtll the /mdumm take them 10 Iheir housu"
Sh.ykbul-bllm Ibn T.ymiyah and his ,tudenl Ibnul.Qayyim (may Allah

have mercy on them) Slated:

"Tht: cause brhi"d prohibiting Ihe buyv 10 sttl <I comm""ity until he has compktdy rei.",d;, is IM wcond ""Y"~ i..Qbility 10 m:riYe Iht commodity. TM origiMl wler may 1101 ddiwr I~ commodity to

the first buyer nptdol/y wlrl!ll the former rw tht ttpted profit of the bu)"'r after stlling the &ame commodity to allothn' ptrson.In this cast, tilt original 5tlln' nwy do his WJt to cannl the deal whether through rescinding or Jw;~dli"g. This ruling i5 [urthtr confirmtd by
tht (Propht/ic) prohibition of making profit through wlult ;. not in one:' possession:"

Ac:tordingly, Mu~ inu muS! adhr 10 the aforementioned lranSaCtional Ic-gal rulings. When. MU$lim buys a commod ity, he " not pennilled 10 $('11 ;1 until ht Itas fully =eivtd it. H~. many peopk a~ negligent in this resard, as they buy goods and sell them before Ihey rt<:eive them, or when they receive only pan oflhem, ,nd this is not altgal receipt oflhe goods. For example, a buyer may count 5IIcks, parctls, or boxes in the .to~ of the ... Uer. and then sell them to another penon, which is not considered a legal receipt of tn. gocxls that enable$ the bu~r to sell them.

Some may ask. -What is Ihen the legal receipt Ihat enable$ the bu~r to have d isposal of the purchaKd commodity!" The answn is thal the legal ,"tip! of goods d iffcl'l acc(lroing to Iheir kinds; every kind IIas its own valid receipt If the good ~ meaMlred. ~ighed. counted. or m .... ured by (ubit, their valid <Kelpt must be through measuring. weighing, counting. or measuring by cubit rt~pectively, provided th e goods l~ taken to a place

belonging to the buyer. If the good. au clothes, animals. ca .... or the like. their valid receipt i. fulfilled by taking them to a place belonging to the buyer. If the goods can be delivered by hand. such as jewels. books and the like. their valid receipt is fuIfilIfii by the buyer's actual possession of them. Yet. if what is purchased cannot be moved to deliver. such as houses, lands, Or fruit on tr= , its valid receipt is fulfilled by handing it over to the buyer to be at his disposal as its new owner. Tb e valid re<;eipt of a house (or the like) is fulfilled by giving its key to the buyer and handing him over the property as a new Owner. We have al ready mentioned some badiths prohibiting a Muslim to sell good. ifhe has not validly and fully received them from the seller. This ruling serves th e interests of both the buyer and the seller. and prevents cont roversies and disputes resulting from the remissness of the buyer and seller when the former receives the goods from the latler, or when the buyer neitber chrcks the commodity nor verifies its quality and specifications befou exempting the sdler from liability. A Muslim must adhero to and carry out the aforem entioned rulings while concluding business dea ls. However, many !",ople today are remiss in the valid receipt of the goods they purchase, committing what has be en prohibited by the Prophet (PBUH), and thus they suffer controversies and disputes. Sometimes, the buyer resrots when he discovers the actual specifications of the goods (after concluding the deal) and then he cannot cancel the deal except through long arguments and disputes; whoever violates the orders of the Prophet (PBUH) must regrot and suffer consequences in the end. Among the transactional acts that have been stressed and highly rocommended by the Prophet (PBUH) is that either of the contractual parties is to rescind the bargain ifhe regrets concluding the sale, drxs not need the commodity mymorl'. or is unable \0 pay its price. He (PBUH) said:

' Whoever accepts the demand af a Muslim to rescind a bargain, Allah will rucind his/aults on the Day o/Resurrection."'
ReSCinding the bargain means 10 cancel it giving each of the seller and buyer his due right. Among the duties of a Muslim towards his f..llaw Muslim brother is to agree to rescind the bargain when the latter needs that urgently; this i. asign of gentleness and good tuatment. as well as one of the mJuirem<:>nts of brotherliness and fellowship in Islam.

ITRAOETAANSAGnONS

Endnotes
1 AI-Bukhirl (2 126) [~ 1~35] and .l.iu'lIm (3819) [51~()9] . 2 AI Bukh.l.ri (ll.l6) [4/44 1] and ).lu,linl (3823) [514101. J Muslim (3818) . nd (3826) [SI4()9, ~ 111 4 AIBukh1ri (2 135) [4/441] and Mu,lim (3815) (51408). S Al!nl. d (I 5253) [31402J and AnNo.n (461 0) [7IJ2\l1. 6 Abii Diwlid (3499) [31492[. 7 Abil. Dlwoid (3504) [3/495], At Tirmidhl (ll37) [31535 ], An Nui1 (464J) [4/340J .nd Ibn MJ.;.h (2 188) [3/3 1]. 8 ->: '\/Akhb.lr AI .nmiyJ'!'h min AI.nh,;),!,r,l, AIF4jhi)'!'h" [po 187) . 9 rbn Ml;.h (2199) [3/.l6[.

CHAPTER

RiM

Verily. the issue of riM is One of the most .."iOllS matters that should be tackled In this regard, all of the heavenly Tffi:lations have prohibited dealing in it. and Allah WlIrm those delOling in it with the severest threat. Allah. Exalted

p., He, says,

"17rose who consume Interest Mn"ot ,tlUld {on the Dlly of ResIlrrteNonl except as one '"!IIds who b btlng beaUn by SiWm I",,, Insnnlty..." (Qur'ln: AI-Baqarah: 275)
In this ~rse, A!Iah decrees for the person, who deals in rib<! and accepa its interest that he 'c//ilnClt sflmd' from his grave 'txctpt <IS one sr<llld,who Is bting bHtm by S.. tnll Into Insanity', This means that the usurer only stands from his grave like the epileptic when being at the time of paroxysm of epilepsy. Figuratively, this is because the usurer used to accept interest on hi. money in

his life and thereby his abdomen became bulky with it.

"

J TRADE TIlANSAcnONS

Fu rthefltlOU. Allah thuoatms tbe onc who ~urns to dealing in riM after knowing that Allah has prohibited il, that he will ~ onc of the inhabitantsof the Fire whtftin he wiD abide eternally. Allah , Euhed be He, ....)'5' -. B.d """""ver",r,m'JI (","-lilt, i" jnrnut ",. wury/ - th ou" ... flu: mmp.ut;""s "I the Firr, lltey ",11/ "b~ ek.."dly tMnin.-

(Qur'ln: AI-Baqarah: 275)

Allah. Exalted be lk, also says:

MAII..It de.,my>
j .. te~ut tlltd

gl"",/II"""'"for , haritju...~
(Qu r'ln: AI. Baqarah: 276)

Th i$ VCI'K means that Allah wipes out the blessing of money that is mingled with the Interest gained from dealing in ribd. ~pile the bet that the Il$Ilm" may become richer and richer, Allah will wipr off the bJeGing ofhis money and thert will be no good in it. Rather, this money will result in ~ consequmca upon its 0W11; he will be wary in this life. ptltlishrd in lhe He~er, and it will be of roo avail for him.
In addition, Allah describes the usurer as I li nning disbeliever. Allah ,

Enlled be He, says:

destroys inttral Ilnd glwI /m~11U for c1uJritiu. A.nd .Mlnh dou nollike every .inning di,btllrwr." (Qur"n: Al-Baqarah: 276)
~AII,,"

rh 11$. Alllh ! ells (us) that He doc.'s not likt those dealing in riM. Accord; ngly.
deprivation of d>e Divine l~ mean. beill1l baled and detested by AUah. Thm(orr, Allah. baited be He.caIls the one dealing in rib4 a disbeliever. The word 'd isbdirveT' may be intorprrl...! according to lwo meanings. A5 for the fi B! Ol>e, ;1 ~rers 10 Ihe pc:rwn woo is ucdingly ungr;l.IefullO d>e favors of Allah. Yet. his disbelief dors not mean thal he i$ no longer a Mu..lim.ln other words, the murrr shows ungratefulness to Ihe divine favors but still beliews in Allah. Th is if due to the rulthal Ihls pel'3On does not show mercy toward the dl5abled. help the poor. nor grant a respite to the insolvent person until the latter" ( il'(um$tances allow him tn pay (to iIeIT1e his due debt). With "'Bard to th e iccond meaning. the word ~diibel/ewr may refer to the actual di~heli ever who Is no longer a Muslim. Thl. i. when . uch. penon deals in riM deeming it lawful. Hence. Allah. Exalted be He. dcscribe. such . person in lh is vene IS "'''"lIng dl.bellrwr" since he i. immered In commItting sins and wholly clljlulfttl in enjoying the material benmt, illegally acquired from rib4. and at EM SllTIt lime causes harm 10 othn5.

a..p... 6: RiI-J
furdlelmor~,

He, as >Odl as Hit ~ (PBUH) ... ~ ~ war .pinst the usum, sin: the Laner is an enemy of Allah and Hi5 MessmF unless he stops dealing in ribd. Allah describrs the USUm" U' wrongdon,
Allah, EnIted
~

"

U Hr $1)'$:

"'0 you WhD h..ve IHliend, fur AU ..II ....d glw up what "' ..... ins {du, tD you] of illt~""'t, if you u.ould IH ~I/,~~ ... AIId if)'Du dD lIot, Ihtll ~ IlIformed of <I w<lr {agllirut youljrom Allah a ..d HII MtIUIlCV. 8u' if you "'('e"t, you mIly h.. n your priru;ilH'i / ,huJj you dtJ IltJ wrong, ntJr 11ft you wronged. (Qurln: AI. Baqarah: 278 279)
In addition 10 all these prohibilive Qur'ank vel'$tS that del ... dealing in

ribd and a~ing ink ,""!, many OI her proh ibit~ badllhs a~ stated in the Prophet.. Su",...1I (Tradilion). 'That is. the Prophel (PRUH) has ~~ded ribd
as o ne ofl he grnl dest~ sins '. He (PBUH) has also rurscd tht 00II0e who acrepts ribd, the o ne who pays it, Ihe one who records it and the !WO witnesses to il '. Mo reover, the Prophet (PBUH) said that if OM bmefiu from <Inly 0,", dirham' of ribd, (when he knows that it is illgott"," money), it will be m~ than (the evil 00 commilling adultery thi rty three times'. Jn another narration, the Prophet (PBUH) p id:

' Ribd is like committing adull~ry lhirty Jlx li"'eJ aJI~r th~ advent
oJ IJl~ m'"

He, (P BUH), also pid:

"Rib.! is sewlll! two tUgrJ (oJ 11'11), Ih u asl oJ whicll rtU",bk. (in 1/$ sillJulntJ$) w",,,,iffillg adultery with olle; motlla."
In this connwion, Shaykh ul-Idlm Ibtt Tlymlyah (may Allah o n him) said:
t'UIn

ha~

men:y

-ne prohibition aJ riM iJ ,trongn" (b<lust ofits dtgr of,illfulness)

bmru.u lilt USUM" taka u"lawfully a" iTlcmue (the ;nfelUl) fro'" "('eNDM who i. ill IIu d, wIr;~ Iht gamblu may gai" rhi, iMcrtaSll! Or Iou it." Then, Ibn Taymiyl h demo nstrated that riM, beyond do ubt , i.! injustice. This II because when dealing in riM, th ~ rich perso n in~ests his power overthe poor (the OOr,..,..,..,r). while in gambling, the poor may gain money from the rich or bo th gamblers may be equal in p;>VCrty or rkh nc. Then he added:

rhe prohibition

of ga mb/I"g. 11IiJ I,

... As gamblillg involves laking ",ono/ unj ustly. A/la}, prohibits if. Yet, tilt illjustk~ alld harm aJJ1idt d upon lhe "my pi!!rSOll (wllo has

I T RADE TRANSACnONS

ta /Jvrmw) due to riM art not the case in 8'lmbling. Furrhermorf, it is known that doing injwtict to those in need (as the case of riM) is gra""r than doing injus/ict ro oihers who are not in need: '
In add ition to this, t.king the interest (accrued from ribd transactiom) is on. of th~ characteristics of the Jews for which th. y hav~ deserv~d dernal and contin ual curse. Allah, Exalted bt He, says:
"For wrongdoing on the pan of th~ !t WS, Wt mDdt UnlDWfol for thtm {etrtDin] good food. which hod betn lawful to them, fl.nd for thtiruwrHng/rom t"eWDyofA IIu" mDny [mop/e}. And {for} thtir taking ofU$ury ",1Ii1~ they had betn forblddt n from it, and thtir colttum ing of the pt"ple'. ",eulth unju$tly. And ..... Jwve prepared for the diJbtlltWrI um"ng them 01 {>Dinful punimmtnt.H (Qur'an: An -NisA': 16(1 - 161)

The Wisdom behind Prohibiting Dealing in RiM

D~aling in ribd involves consum ing !",oplls wulth unjustly. That is, the usurer takes riM from P"Qpk without giving th~m anyth ing useful in [(IUrn.

Dealing in ribd involves causing harm to those in n~~d and who borrow by increasing the debu due upon them (interest rates) wh en they are unable to pay their debts. Ribd prev. nts favors and kind treatm . nt among peopk block.! good loans {i.e. loans without interests}, opens the door wide for lending for interest, which """rburdens the needy borrower. RiM also results in stopping gains, trades, professions and crafts without which other peopl~'s interests would not be ~t right. This is ~au.." when the usurer incr.ases his mon~y through riM, without tlerting any effort, then wh y should he look for othe r ways to gain bis livelihood? In tbis regard, Allah, Exalted be H~, ha. made dealings among people be ba..,d on mutual benefit in return for work or a material return. On the ot her band, dealing in riM dOts not involve this, since it is simply giving money multiplied, from on e party to anoth~r, without any visible product or work. UnguisticaJly, the word "rib.:!" 1n Arabic means increase, wh ile jurisprudentiaUy, riM mean~ increa.., in particular things, and it is divided into two kinds. Th~ first is rib.>n -na<;ah (conditional tlCeM for delay of payment) and the ot.ber ki nd is riballadl (the sellinS of an item fnr another of the same t~, on the spot, but in excess)

Riban-Nasi'ah (Delay Usury)

Th~

word 'Mslah' in Arabic ref~rs to delay. Rlba~-~~$I"h involves two type-s,

Flnt: Increasing the debt on the insolvent person (by way of an interost rate). This is the origin of rivd which used to be don e in th~ Pro Islamic Period of Ignoranc~ (AI-J<lhi/iyyah). Jt means that a person owes another person a sum of money that is to be paid at a certain tim e. $0, when it is tim~ for paying back, the creditor gives the debtor the option either to pay th~ debt or to allow him much more time in return for an interost on the bmrowed sum. Therefore, if the debtor choose. not to settle his d~bt, th~ cTWitor prolongs the period of payment against an interest, which thereby results in the excessive increase of the debt. This is why Allah, Exalted be He. prohibits this ~ of transactions saying:
K . Alld ifwme'Jlle is ill hardmip, the .. {Id there M Ipo.tpollelllellt . u ..ul fa time ofl e(Ut ...~ (Qur'An: AI- Baqarah: 280)

Th. ve"", signifies that if the time of payment i. du~ and the debtor is unable to fulfill his debt, it is impermissible for the creditor te> increase d ebt; rather the cTWitor should give the debtor a grace period. On the other hand, if the debtor is weal thy, he is to pay his due debt. Hence, no increa.., on the debt (by way of an inte",st) should be made whether the debtor is insolvent or not. Second: It refers to th. riM taken through selling goods of the same type but in excess (which is the property in the case of rib~lladJ) with delaying the date of delivery. whether for both or just One ofth. it~ms. There are many examples of this type, such as selling gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, salt for ~lt and the like. Besides, this type includes ..,lIing any type of lhese items for the same on credit. The same applie. to whatever shares these items in the property (of ribal-JaiJJ), as will be pointed oul below.

Ribal-Fodl (Excess Usury)

This type of riM r.,ren to the selling of an item for another of the same IyJ'" but in excess. With regard to this issue, the Prophet (PBUH) dictates that this kind of transactions is prohibited in six items, namely, gold, silver, wheat, barley, dates and salt. Thus, if any of these items is sold in exchange for another of the sam~ type, then it is prohibited to take mo~ than the other {in weight or

I TRADE TRANSAcnONS

measmd. This is du~ to the i1adith narrated by 'UbMah IbnUl-S;l.mit (may Allah be pleased with him) as a mMfa' (Inceable) i1adith.' in which the Prophet (PBUH) said:

"Gold is to be paid for gold, silvtr for silv", whellt for whell!, b~rlq for bllrley, cfuus for dlltes, ~nd salt for salt, lih forlike and equal for equlli, and pllyment is 10 be mllde hand 10 hand:
(Related by Im~m Ahmad and Im~m Muslim)" The above hadith states the prohibition of paying gold for gold, aU its t~s; coined Or nOl, saver for silver, wheat for wheat, barley for barley or dates for dates, unless like for like, equal for equal and payment is made on the spot. Furth ermore, the majority of $Chola" uniformly agree on the prohibition of selling an item as a paym ent for another unleS& both are e<:Jual. Th. sam e ruling applies to other things thal share the same cause of judgment. Y scholars et, differ as regards seaing .uch cause of judgment. In this respect, the sounde.t view is that th e common property in money (coins or banknotes) is its value. That is other 'imilar types are to be valued according to the value of money. such as those banknoles used today. Hence, it is maintained prohibited to sell anyof such items in acess for another of the same type, namely, being issued in the Same country.
As for the cause of judgment of the rest of the . ix items - mentioned in the previous Iladith, namdy, wheat, barley, dates and salt - it is the measure Or weight; !H.,ides, such items are edible. Thw, the sam~ ruling applies to whatever shares any of their property_ as regards weight or m easure and edibility. That is, such type of transactions (i.e. ribllljadl) is view~d prohibit~d, unless th~re is equality in measure or weight.

In this connection, Shaykhul-Isl1m Ibn Taymiyah (may Allah have mercy on him) says,

"... The rrit~rion in prohibiting the trall.iactions 0/ ribal-fadl jj measure or weight (of items being paid for other items) ill addirion 10 ~jbj/jty. This is one of the two vi, ... maintain.d by Im.1m Allmad:"
Accordingly, whatever item shares th~se six item s mentioned in the i1adlth in that cause of judgment (namely being edible and measurable or!H.ingedible and can !H. weighed, or is paid for as a price), it i. to b e included in trao,actions conde mned as riM. Similarly, if such item hare that cause of judgment as well as !H.ing of the same type, then it is prohibited to seU wheat for wheat, for example, in excess or with delaying the payme nt. This is based on the i1adith ofth~ Prophet (PBUH), in which h( says:

Chapter 6:

R;U

"Gold is to be paid for gold, silver for silver, wheat for wheat, barlty for bnrley, dattj for dates, and salt jor sait, Iikz for like and equal for equal, and payment is to bi! made hand to hand. "
Furthermore. if the items share the same cause of judgment but differ in type, such as in cases of selling wheat for barley, it is prohibited to delay payment; it must be made on the spot. While. in this case, it is p"rmissib[e to seII one type for more ofth., other. This is due to the b.adith. in wbich the Prophet (PBUH) says:

classes differ, then seII a, y<lu wish hand to hand."

(Rdated by Muslim and Aba DAwUd)"

~... If theu

if payment is made

The phrase ~hand to hand" here means th at payment must taJu. pia"" on the spot ~fore the two parties separate. On the other hand, if the items are different in both cauSe of judgment and type, it is maintained permissible to pay one type for mOre of another, so is Ihe case of delaying payment, such as seUing gold for wheat or silver for barley. Lel il be known to you, dear Muslim reader, that it i. viewed impermissible 10 sell an item which could ~ weighed for another of the same typ e except with equal weight. Besides, it is impermissible to sell a measurable item for another of the same type except with equal measure. This is due to the Iladith, in which the Prophet (PBUH) says:

"Gold is to be paid for gold with equal wdght, and silv~ is to be J><1id for silver with ~qual weight, and wheat is to be paid for wheat with equal measure, and barley is to be paid for barley with equal ., mca'Ufe.

Besides, ,ince items will not ~ equal when thdr legal criterion (menur<: or weight) is diffe r<:nt, it is impermissibl e to sell an item that can be weighed or m~asurtd with a random weight or musure foranother of the same type. This is because one does not guamllt..: that both items are equal; hellCe, ignoranc e of equality i.like knowing abollt ~xceSs (in one item OVer the other). As for the issue of money exchange, whether of the same type or not, and whether money is of gold, silver or banknotes, which are common these days, the same ruling applied to the selling of gold and silver is to be applied to it. This is based on the fact that they share the same property; being of value that

I TRAD E TRANSACTIONS

can ~ measured. The,..,upon, if an amount of money i. exchanged for another of the sam~ type, .uch as gold coins for gold coins, silvt r coins for . ilver .:oins or any category of paper money for another ofthe same type (e.g., a dollar for a dollar or Saudi pap-er dirham. for the like). both exchanged items must ~ equal in value. Besides, paym ent must take place on the spot. However, if an amount of money of one type is exchanged for another of a different type, such as exchanging Saudi paper riyals for US dollars, or exchanging gold coin~ for silver coins. both parties (the buyer and th e seller) must ~ p,..,sent at the time of the cx~h3!lgc, and paymel"l! ml.l~1 take place on th. spot. In such a case, it i. permissible to exchange one type for mo,.., of the other type, both according to their value. Similarly, if a piece of gold jewelry is .old for silver dirhams Or for paper money, both the buyer and the seller must be p,..,se nt at the time of the transaction, and the payment mllSt take place nn the spot. The same applies to the selling of ~ilver jewelry for gold coins. On th e other hand, if a piece of gold or silver jewelry is sold for jewelry or money of the same type, mch a. in the case of selling a pie<:. of gold for gold or a pie<:e of silver for silver, the,.., a"" two matte ... that should be fulfilled. First, both pieces must ~ equal in weight. Second, both the buyer and the seller must be present at the time of concluding the transaction and the paym eot must take place on th e ~pol. With regard to th is, dealing in ribd implies a great danger that one cannot avoid, unle... one is well acquainted with its rulings. Therefore, whoever is not able to know about its rulings by himself can ask th e people of knowledge. Thi' is because it is not permissible for someone to undenake anytrall53ction, except when m.ing certain that it does not involve ri/xl, SO that his ~ligion can be saved and he can rescue himself from Allah's punishment, with which He has threatened the usurers. It is also impermissible to imitate oth ers in any kind of transactions, without considering it carefully, .spe(ially nowadays when people do not consider the ways through which they can get their wealth and gains: ~ they lamn! or not. In Ihi' respect, the Prophet (PBUH) said:
Ther. will come a time when people will ~at (i.e., mke) rib~. Even the on . who will nor ea! it may not spart: its dust (i.e. he will be affected by it in a way or another).""

It i. worth mentioning here that there are many usurious trans.actions undenakcn nowadays. One of these transactions i5 inaea.ing the debt on the insolvent debtor (by way of an inte~st rate) when ones debt m.comes due and one is unable to fulfill it. That is, Ihe creditor allows the debtor to

postpone fulfilling the debt and in return. he inc/eaStS that debt in a cert~in pc:rcenta~ according to the dd>to..-'~ ~rlod of delay. This is the rib4 done at the Pre-Islamic Prriod of Ignorance (A/'I<lhiliy)'llh) which is prohibited itCCording 1 Ihe unanimou~ ag.ment of Muslim scholars. In th is ~rd. 0 Allah. Exalted be He. !-ays:

{due

01" Uwho have bdltved,fear Allah tI"d give up what ,..,mai", 10 JIOU} of 'ltterUI. if you , hould bt Nlieve.,. Altd if you do nol, Ihen N inio""M of" .....r /", ,,i,," you] from AII"h Olt"

HI, Mcsunp. BUllffoll rc~n', you m"y M IIf' you r prindpal - [lhu'l 'DU do liD wron,. nor "'c y<l u wronged. And if IOmtO"e
u in hard,hip, Ihe" (11 there btl pallpancm ent unlil fa time ofl eaK .. ~ (Qur'~n: AI -IJ.aqa rah: 278-280) Allah. Exalrt<!. be He. th~telUl those taking and dealing in ,ib/! with man y thrtal.i. ~ thlnts invol~
~rses,

In these noble

Fin t. Allah. baited be He. addrtues His servants saying. MO you ",,"0 h ....e bditwd..." and .. ifyou "'ou/d be btli..verl .. ~ which indicatell that il is not pro~r for a believer 10 deal in ribd.

Second. Allah. Exaited be He. says. ". .ftar A.lluh...~ which ilKllallto that thaw deali ng in ,iM do nol obey Allah oor do they ftar Him.
Third. All ah sa)", _ .tlIld give up what "mai"s {dIU to youl uji"ttrut.." Thl. part of th e "c," Is con.ide~. divine command Ihat obligatell refraining from dealing in riM. Hence. this prohibition indicates that w~r deals in it disobeys the Command of Allah. Fourth, Allah. Exalted be He, has decla..,d war against those who do nO! give up dealing in riM, as He. sa)'$. ...and if YIJU do "01..: which means if tOOse dealing in riM do nOl gl"" up ..... then N i"f....mcd of Q wOlr (ag,uIfR )'/'111 froM Allah lUId HIJ Mtf.U!lfger. ~ This mnru that thosoe dealing in rib/! $hould come to know that they, indeed, wage war again$t Allah and His Mess.engn Fifth. All ah. Ex.aJted be He. add res.ses th e usurer as a wrongdoer. sayinll. "": .. bUI if you "'perr, you IIta, have you, prindPDi - {Ihou} you do 11 0 wfll"g, ...... an ".,.. wronged.

11lc.., is aootMr usurious transaction, naowly lending against a spKified interest. This Is through lending something to someone. such as an amoonl of money, on the con d ition Ihat the borrowed amount be paid back with an ;nltrest . It may alw be through cl"tdltlng an amount of moocy On the

I TRADE TRAN~ON'S

condit ion that the borro_r must return mo~ than ill actual value according to an agreed upon per<:entage. Th~ a~ uplicit usurious traru.action, donr in banks as well as the other lxlnking institution$, IS t~ conclude transactions through lending loans (or thUM nuding them. traders, factory owners. elC. They lend th~ CIItegories chllrging them a fIXed in terest calculated according to i speci fied percentage. Such percentage is inc~rMd In ca.se of failure to ply the amount of the lo;r.n on its due time. Thus. such typtofknding involvel both lypes of rib.l, namely rib.llfod.l (excess usury) and rilnln-1U1Jir<lh (delay usury). Similarly. depositing at banking institutiOll.l for a 5pecif.ed period and .gainst a sptcified intertS! Is (onsid .....,d om: of the u$uriow transaction . During th is period. the bank has the right of free disposal. as regards th e deposited amount until the maturity date. So, the depositors a~ pa id (by the lxlnk) a fued interest according to a CCluin percentage on the toul sum of the deposits, such as 5 or IQ percent
Likewise. the l.siue of """h" transactions is considered amonpl the usurio us transactions. It rtf"ers to a transaction in which one buys a commodit y on ,..,d it then seUs it in cash to the same person but at a kw prke, In thu kind of t","sact ion s., the buyer takes an amount of cash against the commodity p..,viously bought on credit, yd it is but a pretext for gaining riM. 'The.., are many /Jpdtths and t raditions forbidding dealing in 'In~h transaction . For example, AbiI D1wQd relates ah~drrh. in whkh the Prophet (PBUH ) says:

"1f)'t>U sdi to oroe Ilnothu with 'fnllh, hold the tllils oJ COli.'! (i.t. become occupitd with worldly pins). Ilre pkw<d with agriculture, and giw up conducting ji/rdd (fighting in fht OIust ofAIWh). AI14h will makt disgfllCt pre"llil owr }-W./lnd wil/ not witMmw it until you return (i.t. adhere) to your ..,Ugion."'
Tht
Pruph~t

(PBUH) also "'ys:

"Thtre will ,,,me a timt for propl. whm lilt)' will ,,,nsidtr riM lawful by means oJtrade'Thercfor~, "MY Muslim must take pTllution lest rib.! should ~ mingled iTh W hill transactions.nd money, This ill beaUK taking rib.! and dtaling in it are among the major sins. Bni<ks. no .-.ple deal in rib.! and commil adulltl")', but Allah, Exalted be Ht, affl icts tMm with povnt y, Incurable dt..cases and inj U51i from Tukn, MortQV~T, riM causes destruction to one's wealth and wipes off its blessing.

Furth~rmor~, Allahstronglywarnsand thr~at~n.s Muslim. against accepting

riM making it on~ ofth~ moot abominable d~ds and on~ ofth~ most grievous
of major sins. Allah, Exalt~d ~ H~, also demonstrates the penalty ~ impos~d on the usurer in both this life and in the Hereafter, as H" sta.ted, in the Glorious Qur'~n, that the usurer wages war against Allah and His Messenger (PBUH). Thus, Allah punish~s th~ usurers in this world through destroying the bbsing oftheir wealth making it subjed to damage and ruin. How often we hear about people's huge wealth ~ing damaged by way of fires and flood, thus turning ito; ownm inlo poor prople! However, if thoS(: UlUriOUS people still keep their wealth acquirod through riM, such wealth will ~ of no use sin", Allah takes away its blessing. Besides, those pwp[e only suffer the t rouble of its collection, bear its imposed punishment (on the Day of Resurrect ion) as well as become tormented in th~ Hellfire for it. In addition, the uSurer is hated by Allah as well as by the pwpl~, sinc~ he takes money but nev"r giv~s in roturn, collects wealth and withholds it from people, and spends but never in charity. Moreover, he is a grttdy miser who colleds money and abstains from spending it in goodness. AI; a result, pwple's hearts and the community are disinclined towards such a perron.ln fact, this is comidered th.e worldly torment for this person whil~ his torment in the Hereafter is more ""vere and more ~nduring, as demonstrated in th~ Glorious Qur'ln. This is because ribd is a prohibited gain that causes a harmful privation and is regarded as a frightening nightmare from which all societies suffer.

Endnotes
1 AIBukhlrl (2766) !5/48IJ and Muolim (258) [1/2731 2 Mu.lim (4069) [6,1281 and (4068). 3 A dirham ohilver equals 2.975 gram. of . ilver. 4 Abmad (21855) (5122S ] .. nd Ad-OlroqUlnI (2820) IJto I.

S Ahmad {2185-(} IS/225[, Ad.D1rqulni (2821) (JIB ] and AJ- rabarinl in hi> boo!< Al-

A_I" (7151) [71158). 6 !bn Mij ah (2274) [~In l and (2275). 7 Set: "Majma wl FIlM""'" (201341, 347). 8 M1.>rfo (traceable) 1lJl<i1l1r is whatever word, deNl, approval or ottribute. tncNl directly bad to Ih. Prophet (Pl'IUH) with. conneaNl or disconnected <hoin of transmission. 9 Muslim (4039) (61161 and Ahmad (9605) [21438J.

I TRADE TRANSACTIONS 10 s<:e; "Mojm('ul fut~wd_' I I Mu<lim (4039) 16116] and Abmad (%05) 121438]. 12 Mu.lim (4039) [611 6] and Aboi O;\wUd (J350) 13/41 13 Mu<lim (45-40) [6117]. 14 AM o.\w6d (333t) 131407J. An-N ..ri (4467) [4/279 ] and Ibn Mi jah (2278) [31741. 15 '/"ahe A u. urioo. kind of t~" w;tion in which a ",,11.. ..11. a commodity on crtdit to a buy.. and th. n buys it from him Rt the .. me tirm at I low.. pric<. For exampl I trado, ",,11. I cor for twe nty ,hou ... nd pounds ()fl c.-.dit thm buy< it from the .. me man (who h .. just bought it) for fir' .. n thou .. nd pounds ca.h. ThUs, th. original buy .. O~ th . ..Jl.. twenty thousand pounds to be paid at t ~ duo .iID<_ 16 Aboi Db'lid (34152) [31477] .

CHAPTER

Selling Assets

Assds indudt houses, lands and I,..,e<. It <;aJl he Sil fely u.id that what~r

is rtiall'<! 10 Ihrsc assets when $Old. is for the bu~r, and what~r is not rt;lated 10 IheK items remains the p~rty of the seller. When botl! the bu~r and the seller a,.., aequa inted with tooe rulings, they will se ttle any dispu te that may arise bet wn ll "thcm. They will also recogniu each one's duties and obligations. This is bea l.lSC Islam hu not left a matter in wh.ich
there may be a benefit for Muslim~or harm bu t has demonstrated it. Be~ides, if the ruli ngs orblam a", p~rly appLied, any mnmCIS or diJpules will be properly scttk<!. One of lhes.e matte .. i. sdling an item while the", a R otM ' items ..,lated 1 il; auxiliary, complementary or installat ions attached 10 or 0 detached from this sold item. Besides, the sold item may be of a conTinuous growth (e.g.. selling a pic Qf b nd containing a certain crop that GIn be harvested for nu.ny timH; so the~ ]s a continual gain) and may not be like th at All of these matt~n may caUK a d isp UI~ betwe.:n th~ buyer and th e K\l~ r. as to whom shall all these au ~lliarie . complementary items and installat;nn s

r TRADE TRANSACTIONS

h..long. In order to issue a judgment in this dispute, the faqihs (may Allah

have mercy on them) have decided to dedicate a chapter.in jurisprudence

and h.. entitled Selling Assets and Fruits" wherein they have demonstrated all such penaining rulings.

If someone seUs a bouse, the sale include. the buildi ng and roof, since both
are included in the appdlation of a house, Thi. sale a]"" includes what~r items are attached 10 the house and considered among it. necessities, such as doors, stairs, shelves and machineri". installed in the house. These machineries include electrical lools, lifting apparatuses, lamps, water lanks positioned under the ground or above the roofs, pipes specified for distributing water, airconditioners, elc. This kind of sale will also include whatever the house contaim of trees, plants and sunshades setup in it. This sale also includ~s whatever is inside the land of the hou"" of solid m~tals.
AI; for objects lo<Iged in the house and detached from it. the sale d~s not include them. These detached things indnde WO<XI. ropes. vessels. furniture and whatever is buried in the gronnd of the house for ke<:ping. such as stones. treasures and the like. All thes. items are not to be included in the sale in"" they are detached frOll'I. the house and art not within itll ap~llation, exdnding things without which one could not make use of the house. such as keys. even if these things al"<' detached from the house.

If one sells a land. this sale includes whatever is attached to it and which will last for a perio-d, such as tr~s and buildings. In the case of selling a garden, the sale includes the land. the trees, th~ walls and the buildings thereof. If one sells a land with plants that are to be harvested for only one time, such as wheat and barley, then these plants belong to the seller and al"<' not to be inclnded in the contract of sale. However. if the land is sold with plants that are fl"<'quently cui (like the grass) or picked (such as cucumber or eggplants). the plants belong to the buyer since it is attached to the land. At the time of sale. if there are any plants that are to be harvested. they belong to the seller. All of this detailed explanation and rulings are applicable to whatever belongs to the seller and the buyer when selling an asset, in case both parties do not agree on other conditiOn<. Hen",,> if a party makes a condition stating that such obj eds are pos~ssed by onlyol)c of them, both parties must keep 10 this condition. This i. bc.cause the Prophet (PBUH) says:
"Muslim. must keep 10 the (o"ditions they make."'

49

If somebody sells poIlin~tcd dale ~Inu, the dates a~ fQTthe seller. This is KCQrding IQIhe Wth , in whil:b the Prophet (PDUH ) says:

-If wmtbody u lls pollinaud dMe palms,

Sellt T unl~ss tht selltr ogTUl)."

lire fmil.S will be fOT the th e buyu stipulalts thM they will be for himst/f (ond

(Rel.tt<! by AI Bu kh~rl and Musl im)' The same ~ppli es loot her plan ts, such as STal"'s, O1ulbe rry and pomegr~nale; if wld after the aPf"l'arance of Iheir fruits, the fruits are 10 be for Ihe seller, Thneupon, whatever is sold befQre the pt)ll ination of date ~ I ms or Ihe appearanceQf fruils, u regard!; grapes and the like, weh plants and fruils are fur the buyer. This is based on the ge neral mea ning of the above mentioned hadith , Besides, the $;l me ruling pe rtnining tQ d~le palms appli,. tQ other Qbjects by means of anal<;>ginl deduction. realize how complete l OO I"'n<'Ct i$ our Shnrf'ah (Islamic Uow), which solves (he problems facing pe<>ple, gives righls to whom are entitled to them in a just manner without UUJing any harm, There is nQ problem but our Shorl 'oh has provided for it a jU$llfying. ~ $OIution. Tbi$ S/ulrf 'uh ;5 a kgWalion from QUT Lord, the W ise and the Praisewort hy. Alla h knows what benefits His serYlln15 lOO what causes harm 10 them, in all places and timu, True are Ihe Words of Allah, tile Most Grt. WIw says.:
"0 yolt ..,hahawbdievrd, obq Allah alld oky .10.. Mtuf'ltgennd I/u)~ ilt au.harily amallg you. Alld ifyou diSdgr-u awr anyrloills, !'tfer il to Allah alUllhe MtUellgtr, if yclu ,hauEd belitvt /n Allah and lhe Lmr o..y. Thar i. rloe #>fir l-y/ and bal in !'t.It/I. (Qura n: AnNl$l': 59)
M

Th~ I

Vml), no judgment Glh .... Ih an Ihat of Allah and His Mesungtr (PBUH) can decis ively sttlle any dispute among pwple, and btondil them and convince Ihe believers.
As. for the human J)'$lems oflegislation, Ihey aT<' as imperfect l OO incapable

as humans themscJI't"S aT(', Besides, these sy~lem ' are influenced by personal inclinations and tendtnci<s, as Allah. Exalted be He. ~Y':
M if tlot Trlt 'lo {J.t. Allfllo/ load follawto"he;r iltd iltalimu, Bul 11ot' Ioeann. IIltd ,lot' ear,h altd...rn..v.,r I, lit ,1If'm _uld Iofln
17ftlt

ruilttd .."

(Qurln: AI.Muminun: 71)

rnv.D l"RANSt\CIlONS
away with those who ha'-e replaced the judgment of Allah and His M~nger (PBUH) with laws of humans! And may they w ruined. In this r~garJ, Allah says:
" Then 11/1 ,FIt judgm~nr uf Ilh~ limt ...fJ 'llnct th~y deS/fer But wh ... i. bd'n- ,h,m AII... h ill judgmell/ j ... , a pwple wh ... a rt ""..tain {in j ..irh lr~ (Qu i l n: AI-MI'idah: SO)
~tdore,

is" . .

invoke Allah 1 ~nder His Rel igion (15bm) victorious O\"Cr falsehood, 0 ekvat~ His word, and protect Muslims from wh.:ltever plots their enemies contrive: Hi:' is the Hearing and th~ Rtspollsive.

W~

Endnotes
t AbO Diwiid (159<1) 141L61. ~ .tJo AI Tirmidhl (LlS2 ) {lI~l. 2 AI_Bukhid (2379) 1S/621 and MwJim ( :1811) [5W2].

CHAPTER

Selling Fruits

Fruits are whatever date palm. or other kinds of trees carry of edible ripe produce. On e of the rulings on selling fruits is that it is impermissible

to sell the fruits on trees before the appearance of ripeness. This is because the Prophet (PBUH) forbade the sak of fruits until they are ritx: (fret: from blight). He forbade both the seller and the buyer such aule L. Thereupon, the Prophet forbade the seUer from selling his fruits before they become ripe and free from any bligbt lest he should devour the buyer's money unjustly. The Prophet (PBUH) also forbade the buyer from that kind of transactions since he would thus hell' the sell er in devouring money unjustly. It is also stated in the Two Sahihs that the Prophet (PBUH) forbade selling fruits until they are almost rip", When he (PBUH) was asked about the signs of ripeness, he replied, ~Ther get red OT yellow (fitfor ealing)."' The forbiddance in the two above-stated badiths indicates the invalidity of any transaction concluded ~fore the signs ofripeness appcilr.

it is im~rmissible ID sell plants until th~y a", almost full-grown (safe from blight). This is according to the h.adilh related by Im~m Muslim On

"

J TRADE TRANSACTIONS
B~.ides,

the authority of Ibn ' Urnar, statins,

"The Messenger of Allah (PBUH) forbade selling dMe palms until the dales are almost ri~, ana (he forbade se/ling) turs aJcorn "ntil Ihey art white and safe from blight. He forbade bOlh the seller and
the buyer fro'" such $tlle:-

This Iladirh proves Ihat it is forbidd~n 10 sdI plants until they are almost full-grown, that is by ~oming while (ears of corn) and safe from any plant disease. The wisdom behind forbidding the sale of fruits until th")' are almost ripe and of plants until they are almost full -grown, is thal1hey are subjected, before their ripeness and full growth, to plant disea"", and damage. Th e Prophet (PBUH) demonstrates this by saying'

"IfAlklh destroytd tile fruits (prrseMt OM the tru s), what right would
olle ofyou have to take Ihe mOlley of his (Muslim) brotller~n '
He has also forbidden US from u lling ears of corn "until they are white /!Md rofe from blight." 'Blight' here means any plant disease which may afflict plants result ing in their destruction. Th is Prophetic injunction is verily a mercy for people, and a means of preserving their money as well as preventing any conflict that may arist among them, and which may lead to animosity and hatred. Thereby. it manifestly appears how much attention Islam pays to the sanctity of the Mnslim. property. The Prophet (PBUH) says:

"If Allah destroyed the fruits (premll 011 the trees). with what right would you (the seller) take the mOlley ofyour (Muslim) brother?"
In this hodlth, there is a warning for whoever resorts to tricky methods for taking people's money unlawfully. 11lis hadlth also urges Ihe Muslim to en'ure the safety of his money and ket>p away from wasting it. as the Prophet (PBUH) forbade the buyer from buying frnit' until they are almost ripe and free from blight. This is because iflhese fruits were damaged and their money was paid by the buyer, the buyer'. money would be lost Or it would ~ difficult to return it. It becomes dear from the above-mentioned badith that the Prophetic prohibition of selling fruits until they are almost ripe illdicat~s making Ihe ruling dependent On th e most probable condition. In other words, it is more probable that fruits be damag~d before ripeness; ther~upon. it !J<,com~s impermis.sible to sell them. While, the most probable rondition is that fruils

Ch.aP'" 8, s",lIin5 Frui "

bt safe from blight after their ripeness , and therefore it bome. f'<'rmissibJe to sell them. Moreover, it can ~ understood from the same had/rh that it is imf'<'rmissible for one to expose one's money to danger or wa.te, even ifboth pMtie. agree that there will ~ a sort of compensation for the damaged fruit., which is con.idered an unsafe procedure. Due to the above, it is impermissible to sell fruits ~fore they are almmt ripe, namely fruits can bt sold alone without the trees (carrying them) provided tbat these fruits are left (on the trtts) until they are ripe btfore ~ing sold. However, if these fruits are sold along with the trees or sold in their present condition (Le., before ripeness), this btcomes permissible according to three cases mentioned and demonstrated by the jaqlhs (may Allah have mercy on them). First: It is permissible to sell fruits ~fore they bome ripe with their trees. That is, fruits bome part of the sold item (th eir trees). The same applies to the selling of the unripe plants along with th e land, as the unripe plants ~Iong to the land in this case. Seoond: It is permissible to ~ll the fruits or unripe plants bdore becoming ripe or full-grown to the owner of the land or the fruits. This is because if th"" e fruit. are sold to the owner, then he gets the fruits or the unr ipe plants fully, as he is the actual owner. Though this kind of selling is valid, it is a debatable issue since some scholars maintain that this case implicitly falls under the general meaning of the Prophetic injunction forbidding the sale of fruits before they are almost ripe. Third: It is permissible to ~II fruits and plants (ears of corn for example) befon: th eir rip<'ness and full growth on the condition that they are picked or cut immediately after the sale, and that the buyer can make uSe of them at that time. T hi s is bc:cause the Prophet (PBUH) forbade the sale oHruit. (and th e like) bc:fore they are almost ripe for fear that they may get damaged or blighted; however, this will not be the C wh en fruit. and plants are picked or cut imm ediately after ase concluding th e sale. By contrast, if the fruit. and plant. will be of no use if they are cut immediately after conduding the .ale, selling them becomes impermissible. This is becau. e this leads to damage and waste of one's money, while the Prophet (PBUH) forbade wasting on e's property ' .

I TRADE TRANSAcnONS

Yet, according to Ihe sOUndeSI view of scholars in this I"<'gard, it is p"rmissible 10 sdi crops that art fl"<'quently c ut or pid,ed, such as grass plants of the p"a family, cucum~r, eggplant and Ihe like, So, it is p"rmissible 10 .elltheir present or ful ul"<' produce, With regard 10 Ihis, Shaykhul- Isltm Ibn Taymlyah {may Allah have mercy on him) &aY"

',., The so~ndest view with regard to this i..ue is that this (the "'tier) kind of sale i. lIot illd~ded in the Prophet. prohibilion. The .onlract of sale is valid whe .. olle sells the present prod~et and the future olle whose fruits ha", not appeartd )'I"t, until the freq uently cut or pichd prod~c. become> dry, .inet ntet..ity "quires this. ThU s, il is permi..ible 10 sell the frequmtly cui or picked produce withoultheir plants:'
MOre<Jver,lhe gr<:a1..,holar Ibnul-Qlyyim {may Allah have mercy on him) ,ay"

"The Prophet (PBUH) rmly forbade/ht selling offruits which could bt .old at a later lime untiltheyappt ar to be almost ripe. Ho"""",r, the frequm tly c~t or picked product (s~ch as cucumber) is not i"cluded in the Prophet. prohibilion ....

Endnotes
I AI -lIukhlrt (2194) 14/4971 and Mu.lim (3MO) ISH 18]..

2 The Two S<>fJifJ" 11>< TW<) AutM"ti< BooIo.s of AI,lIukhlrt and Muslim.
3 AI -Bukhl" (2195) (4/ 498J and Muslim (3954) (5/.601_ 4 Muslim (3842) !514 19 ( .nd AI-IIukhtrl (2 197) (4/502], 5 AI -IIukhlr! (22()8) [4/5101 and Mu. lim (3954) (5/460]. 6 AI, lIukhir! (6473) (111371 ] and Muslim (4459) (61238[ . 7 S; "Majmu 'u l_ fut~wd- (37/205). g SoH th. footnOle of" A.r-Rawd AIMum [4I546J.

CHAPTER

Blighted Fruits: Rulings

Blight ref~ r5 to any plant disease affecting fruits resulting in their destruction. In this ..,sard, fruits may be sold whcn they al"<' almml rip e, and it is permissible to sdi them, and after that. they may be hit by blight. Divin e Blights refer to mallers that are beyond the powers of human intervention, such iI.S wind, heat, drought, rain, coldness, locusts, etc, If Ihe buyer then could

not collect the fruits before being afnkted, the buyer is allowed to take whatever amount of money he had paid for those blighted fruits. This is due 10 the Iladrth narrated by Jabi. Ibn 'Abdull;\h (may Allah be pleased with him) and related by Im~m Muslim, stating that th e Prophet (PBUH) has commanded to
return the paym ent ofthose (fruitS) !irud: with" blight '.

The aforementionNlfladitn signifies thattht blighted fruits belong to Ihe seller and the buyer is 10 take whatever price he has paid for them. Thus, if alJ the {sold} fruits are blightNl, the buytr is to be repaid whatever payment he has given, bnt if some of thos: fruits are blightNl, he is to ask only for what is equal to the value of the blighted fruits. Thi. i~ based on the general meaning of the aOOvementioned hadUh. This abo applit~ whether the sak

ITRADETRAN~ONS

has bft.n rondulkd ~f~ the ripeness of the fru its or afterwards, according 10 general meaning of this hadlth and according to the hadlrh in which the Prophet (PBUH) says:

"HoWCl!uld you take the mO'lq Ofyour (Muslim) Itrother without a right?"'
However, if the blighted quantity of the sold fruits is little and could not be CIa< tlyddined, the buyer, and not the sell er, is to bear its respon sibi lity, since this il com mon among prod ucts. MortOver, this damaged quantity is not considered blight and cannot be avoided; for example, it may happen wh en birds tat from fruits or what may drop on the ground and the like. In thi s respect. schol ars mainu!n that this quant ity Is not to be regarded u a blighted produce u long u th e damage do es not reach the third of th e whole quantity. Yet, the most prepon derant opi nio n is that the amount is nOI to be dete r mined in this manner, but it il to be decided according to the common convention among people in this regard . T hi, is because d ecid ing a ce rtai n qua ntity necessitates the presence of a proof. Scholars (m ay Allah ha~ mercy on lbem) maintain thtthe seller should bear the responsibili ty of the blightM fruits bee.uS(" when th~ seller S<'115 th e fruits on the tl"C'U by luving them to the buyer, frul" are not actually handed over. In other words.. it I, a5 ifhe has not given him those fruits from the start This applies to the fruits struck with a divine blight However, if the fruits a~ damaged by way of a human cauS<', such as a fi re (startM willfully), the buyer is to be gi~n the choice between two thi ngs. The first iJ abrogating the sale and asking the so:lIer to repay what he has paid. The se!ler shO\lld then ask the ptr$on who caused damage to bear the responsibility (or what he has damaged. The second option it co ncluding the salt and .skins the one who hat ca used th e damage 10 give compensation. The Prophet (PIIUH) stipulated tht fruits an 001 to be sold until they an almost: ript. Actually, the ,ig~ through which trCC$ other than palm are known to have n<1oChtd ripeness differ according to each kind of trees. As for grapes. the sign of riptM$$ is whm their taste becomes sweet. This is due to the IIadilh narntM by Anas that the Prophet (PBU H) fom..dc the sak of grapes until they become black (ripen) '. (RelltM by Imtm Ahmad with a trustworthy chain of tranJmitters)

Chop' 9; Bligl1ted Fruits, Ruling>

Asforthuigrtindicatingthe ri~nessofotherfruits (suchasappl.., watermelon, pomegranate, apricots. plum, walnuts and the IiUl, it is the appnrance of their ripeness and being fit for eating. This is base<! on the hadrth rdat~ by AIBukMrt and Mudim in whkh the Prophet (PBUH) forbade ",Wng fruits nntil they get riP" '. This hadith is narrated in another wording as. ~ .. whim it is fit for eating." As for cucumber and the lli, the sign of their ripeness is when they become fit for eating. However, grains are known to be riP" when they are fully-grown and white, since the Prophet (PBUH) <leems it pennissible to sdi grains only when they are folJy-grown and hard ' .

Endnotes
I Muslim (3957) [5/4(2). 2 Mnolim (J952) [5/4601. s .10 AI-Bukhlr1 (2208) [f /SIO[ .nd Muslim (3954) [5/460 1. 3 AM DtwU<! (3371) [ 31~321, Atli ,midht (l231) [315301 .nd lbn Mlj . h (2217) [3/45 [. 4 AIBulmirl (2196) [~/~98J . nd Muslim (31H9) [5142t J. 5 Relate<! by the Five Compile .. C>f Hodith acopt An Nun

CHAPTER

,.. ' _' _,C__ '-.

TheSalam
(Sale of Payment in Advance)

The St!lllm is payment in advance wH h delaying the receipt of the $Old ite m . The Muslim/nll'hs (may Allah have me rcy on them) ddlne the salam as:
"A wn/rart according 10 w/Jid! the p~i'f of a di!a rly.dtfi,,~d item ~ paid in ad"'Jn~ ar tire place of", .. eluding the conrrrlCf, and tltt scld
iltm is to ~ rl!Uiwd /Q/O'."

This kind of transactions is permissible according to the Qur'h. tile SunMh (Prophetk T""ditlon) and the consensus of Muslim scholars. What pl"OWS that is what Allah. Exalted be He, says:
01<'''' wIw haw kllt wd, when yo .. contr.u-I" d~lforl~ ,pIfitd rum, wrIte 11do ........ (Q urln: Al-Baqara h: 282)

I1ltADE TRANSACJ10NS

Ibn Abbh (may Anah be pleased with him) sa)'$'

"I ttjtify that A/Iilh has made lawful to us (Muslims) to pay in advanu for the priet of a thing 10 bt: d~liwrtd Iilttr afuT a specified ItTm. Ht Iht n rtciltd this abovementioned VtlU: '
When tbe Prophtt (PBUH) rind at Mwim Il!ld found itJ prople paying in advanCl: the price of fruiU to be delivered latn after I ~ar. two or three, he said: WhW:l" /HlfS in tuiWlI1ct Ihe priu of a Ihing - (or ... offruiu ... according fo t11l0lhtr narration } - to be dtlivtrtd I.lltr should pa, il jor a specified mNSU/1! at sp;ifiw welglll for a spuified pmod." (Related by AIBukMr! and Muslim) ' Thi. fuIdith provts that the sa/am is !"'.mi.$$lble when these condition, are fulfilled Bo::;idts, Ibnul_Mundhir and othu $(holau report that scholart uniformly agree that the Uliam is !",rmiMible '. MQUOYer. people need the salilm. since one of the panics o f the lransaclion may be in n<l fOT being paid the price o f an item in advanc:e while Ihe other may be in need for buying an item fo r a cheap price. In addition to the conditions of selling, there are $Ome conditions necesPry for v.lidating the sa/am:
FIrst: The sold item whose price is to be paid in advance mmt have definite pro!""ti". This is beCOlU5e itenu; whOle pro!",nies cannot be definw undr'l!0 many changrs, which UI,lUS disputes between the two parties oltht sale (at the time o f receiving the IOld item). Thereupon. the safum is not valid in items whOK propenies may change. such as pnbn.leath~r, I,IteruUs and jewels. Second.: The kind and the class of the IOld item must be d efined. For example, if th e sold item is ..... heat, the kind must be defined. which is wheat here. and the class of that wheat mU5t be defined such as Assalamtlnl (a type of wheat). Thin:!: The IOld item mUJl be a specified quantity. weight or measure. This is according to the meaning o f the badilh in which the Prophet (PBUH) says:
.~ paY' in advrlnU IM pria of Q Ihing 10 be dcli..errJ iDler should />flY il/or a $pified measure Or a specified weight and for

a specifit d period. (Related by AI -B ukhl" and Muslim)

Chop'''' 10, 11>< s..J.,,,, (Solo of Payment in Advan)

Besides, if th~ quantity of th e sold item is unspecified, it becomes difficult to be exact.

Fourth: Ther~ must be a s?"cified period for receiving Ihe sold item. This is becau.., the Prophet says in the above-mentioned hadfth, .. .for a .puified pmod." Besides, Allah, Exahed be He, says:
"0 you who ha..., be/inow, ....h.".J(>u rontl"llCt a dt"tforD.~dfied term, write itdoWH .. . (Qur'an: Al-Baqarah: 282)

With ,..,gard to this issue, both the lladllh and the noble verse state that in the sa/am both parlies agree 10 the condition stating thal the sold item is to be delivered later acconling to a specified period known to both of them.
Fifth: The item sold must be present when Ihe lime of reception is due, in order to be del iv~red at the stipulated time. The",by, if that item is not available when its time of delivery is due, the salam does nOI become valid, such as paying Ihe price of ripe dat~s and grapes in advance and stipulating that the sold item b e delivered in winter, (such crop, a", nOI available at such a time). Sixth: The price of Ihe sold item must be paid fully in advance al the time of concluding the conlract. This i, according to the had/th in which the Prophet (PBUH) says:

' Whoever pays in advance the price of a Ihing 10 be delivered late, should pay itfor a specified mea5ure ...
In this conneclion.lmam Ash-ShMi' I (may Allah have m ercy on him) said:

'The transactio" of the salam i5 not valid. except ",he" the pri~e is paid in advance and before the two pa.rties (the seller and the buyer) ieaw. the plDee where tht y havt condudtd the transQetian. Besides. if tile priu of tht .old item is nat paid at the timt of concluding the controet, it will be reg,mied as selling a debt fo r a debt, whi~h i. impermissible."
Seventh: Th~ ""Id it~m is not to bt 'p.:dfic (e.g. a certain house or a specified Iree). Rather, it should bt "'garded as a debt in th .. ..,ller"$ liability. The",by, the ... Iam is not valid when specifying a ,ertain houS<' or a certain t",e to be giv",n, because this tree or house may get damaged before being delivered to the buyer. In this way, the de~ired purpo~ for which th( salam ha~ been deu~d will not bt fulfilled.

I TRADE TRANSAcrlONS Besides, the deliv .. y of the sold item is to be in the _<ame place whe..., the COnlract of the sal~m has been concluded, if po.. ible. If this place is not fit for delivery (e.g. they concluded the conl"'~CI at a certain spot On land or at sea). Ihen the place of delivery must be mentioned in the contrac t. MOrlver, if the two par!ie, ag...,e 0 n the place of delivery, the s~lam becomes perm j.. ible. Otherwise, they must resort to the place wh ..e the contract has been concluded, for it was fit for concluding tru, transaction from the ,tart, as ment ioned befon:. One of the rulings On the sala", is that it is impermi.. ible to sdi the item sold according to the sa/am to someone else (by the buyer) t>efon: it is re<:eived. This is becau.,e the Prophet (PBUH) forhade ",Iling foodstuffs befo n: re<:eiving them' . In this case. the b.awd lah' i~ invalid, since the b.awdlah is only valid n:garding a stable debt while th e salam can then be annulled. Another Tuling on the salam is that ifthe sold item is uot pre",n! or available at th e due time, such as in cases wh en the tn:es have not born fruits at the Y"ar of ddivery, the one who has paid for the item in advance may choose whether to wa it until the fru its an: available. Or he may ask for annulling t he contract and ask for the money he has paid. This is because in C3S1: the contract is annulle<!, it is obligatory for th e ",ller to repay the price paid in advance. If the paym ent given by the buyer against the sold item is damaged, a compensation for it must be paid. And AUah . Exalted be He, knows best.

In fa~t. allowing such a kind of transactions is a sign of the faci litation and benevolence by which o ur Shari'ah i, characteriud. This is becau", tht sa/a m fadlitates many things for peoplt and helps tht m do what benefits them . Besides, the <alllm does not involve riM Or the like of other forbidden transactions. All praise is due to Allah for the fadlitation He grant s.

Endnotes
t AJ-J::Ilkim (31 8~) 121342). AIllayhoql (111)8 1) [N.lO) and' Abur.R ..dq ( 14064) IlI/5) 6142). See .1", AI-Bukh~ rt (225) ( {/~5 1). 2 11.1- BukMrt (2239) 141540I.nd Muslim (409-4) 1

3 See: AI-lj.,J Ip. $4)

4 Ah.m. d (1525) ) (l/402I and An Nw', (46tO) ( ml~ l. S H.w6.lah: Th< trorukrence or. debt from the liability of Ihe debtor to t he liobilily of .n<llhe r pe,...,n.

CHAPTER

Loaning and Loans

The loan means p'ying an amount of wealth to 5Omeone who wants to bo.onefil from it, and then he pays it bad Later. Th is is considemi a kind of utility so the Prophet (PBUH) calls it mQn,/Iah I as lilt, bono_r ""nd i... from it and then 1"")'$ it back 10 the lendn'. Lending u; dtsirable and is greatly ,warded by AUah, as the Prophet
(PBUH)
say~,
<I

"No Muslim lends

loan to Imolher Muslim twice but it will b~ likt

giving it anU in charily,"

(klated by Ibn M:Ioj.h)'

It ii Nid thal lrnding . loan is legally bene. than giving charity. as none OOl'TOWJ n<:~1 WMn being in bad nmi In a l"lJib (authentic) bud/rlt, the
ProplKt (PBUH) says:

Mliodim from hardship Allah ...iII ,.,/itvt him from the h~rdships (IQ which he would be put) on Ihe Day ojResumction." "He wlw
~Jjro>eJ D

[ TRADE TRANSACTIONS

So, lending i. considered a good deed as it nlieve$ a Muslim from hardship and meets hi s bad need. Ht nce. bo rrowing i. not. detestable act. for it happened that the Prophet (PBUH) borrowed Thi s is related and stated in many b<ldltMlboultM Prophet (P BUH)'.

the loan mm!: be from JO;Im"""",, w~ km! is legal (valid); it for !be guard ian of an orphan. fur uample. to taR from the orphao's money In order to lend othe~. The amount and quality of the IolIn must be known and defined in order to make the receiver able to pay it Welt. A l();ln iscon5idered a debt upon the liability oHu receiver. and then he hLS to return it. without dela)'. as soon as he can afford iL
is impermissible

~r.

In addilion . il il prohibited upon Ihe knder to stipulate any inc~ 10 hulou. SchoIarl ufI.lllimously agree lhal if the lendn- stipulates any increaK and tales [I. it 1 considered ribd. Nowadays. banks len d money otipulaling 5 In interest on money. whkh is plain ribd. whether the loan i5 the so -cal led consumer or developmental loan . It is imperm issible for the lender (a bank, a person, or a company) to take I stipulated increut regardk:u of the name giVftl to il (profit, interest. gift), or to makt ...., of a utilily against tm loan such as staying in a house or using a car. N kmS as this profit. gift. or utility is obu.ined through stipulation, il is considered impermis.sible. The Prophet (PBUH ) says:

"An)' iO<ln that bring511 profit i$ (a kind of) rib4."

Anas (may Allah be pleased with him) namted that the ?raphe! (PBUH) said:

and Ihut iJ 11 gift pmenlN 10 him or he iJ asIud to ~ rllrriui a" the mounl (lIf the b<l",,_), Itt should nol ride 1111 ;1 liar should Ite arupl Iht gift tJCCtpl if Iltlll used 10 hllpptn /ltlwet" Ihem (Iltl Ilnder dnd lhe
bort"tl'o<'tr)
btfort.~

-1/ llllyont of)'O" gill$ 11 loan (10 JOmrOOdy)

(Related by Ibn M1jah as a mllrfo' (t~nblt) Qlldlrh)'

There art mlTly similar narrations of thi5hadilh.

Furthennore. it is rda~ aboul . Abdullih Ibn SaJ!m (may Allah be pkued

with him) that he said:

-If SlImton t illdebltd 10 )'Ou givlll you 11 load of h~)' /I. 11 gift. do not
ncctpt it, for it is riM:
This tradition 11 viewed by ICholars IS a had!t" narrated aboul the Prophec. (PBUH ). Thus, il it impenni~ible for the knder In acpl a gift or any form

Oup'.' ! 10 waning and w.",

of utility from the d~btor. Such a profit is prohibit~d sin"" lending is supposed to k a kind of leniency on ~half of the Muslim lender towards the n~dy debtor, and also a means to draw n~ar to Allah. So, if the lender stipulates or anticipates a profit, then he violates the aim ofl~nding; that is to draw near to Allah through relieving th e needy instead of seeking a profit from him. as it will not \>., consid~red a good loan. Therefore, Muslims must avoid su.::h transactions that may involve rib<!. Moreover, they must have good intentions, as regards giving loans and doing other good deeds. That is, the purpose of giving loans is not direct~d to material gains: rather, it is a means of gaining a moral benefit through drawing n ear to Allah. This can k attained by relieving the needy without gaining any profit. If a Muslim lend~r intends to reliev~ the needy. Allah will bless his money.
It is worth m ~ntioning that the prohibited profit is th e stipulated one. For
exampl~, the lend~r may stipulate that h~ g~t. back his money with such and such amount of money as due interest, makes use of a house or a shop of the borrower, or g~ts a gift from him. It is also forbidd~n that the lend. r intends Or anticipates takins an increase even if he does not stipulate such an increase, However. if there is SOme increase siven to the lender simply as an act of showing kindness from the borrower not by means of stipulating. th~re i.'l no harm in that as it is consid~red of the better ways of repaying loans. Once, the Prophet (PBUH) gave a choke camel in return for a small camel that he had rN:eived as a loan. Then h~ (PBUH) said:

"The bm amongst you is he who pays tM rights of athm handromdy."'

Accordingto the Shari'ah (Islamic Law) and common convention, paying the righl~ of others handsomely is among the good mannC and it i.'l not rll among the prohibited loans that beget benefits as long as such an increas e is neither stipulat~d nOT anticipated by th~ lender, but it is simply a donation from the borrower. Likewise, it is permissible for the lend~r to accept a benefit which th .. borrower us..d to give him before the loan as long as it is not given to him be.:ause of the loan. The borrower must pay back the loan without procrastination or delay as soon as h e is able to afford it. Allah, Exalted k He, .ays'

rs the rewardfor good (anything) !>ut goodr

(Qur'~n:

Ar-Rahm!n: 60)

I TR./IDETRANSACTJONS some people.,.., ,..,miss in giving th~ rights of olh~rs especially d~b{s. This is a bad mann er that has made many people abstain from lending th~ needy and ,..,li<'Vi ng them. Thus, Ihe needy Muslim may be.:ome obliged 10 borrow from the usurious banks and commi t what Allah prohibits since he find! no one ready to give him a good loan and the lender finds no one trustworthy to repay him on due time. This leads t o the absence of kindness among people.
How~v~r,

Endnotes
I 1he word maM!hah in Arabic indicat.. somrthing gifl.d to b. made use of then

...-turnM I<> il.< owner. 2 Muolim (39l8) 15/45 Z]. 3 Ibn Mi jah (2430) [311531. 4 A!BukMrl (2442) IS1l2 1] .nd Muolim (679l) [9123J. 5 AIBukhl rl (2305) [4/608] and Muslim (4086) [61.J.8]. 6 AI Bayhaql (10933) (51573]. 7]lm M1j . h (2432) Ill . 54]. 8 AIBukhirt (n05) [4/6081 .nd Muslim (4088) 16/39].

CHAPTER

Mortgage

Mortgaging refers 1 the security for a debt again$!. an artide mat can (!IW' 0 it or its value (in case of non -fulfIllmmt).

Mortgaging is permissible according 10 the Noble Qurln, the SlIlIlIGh

(Prophetic Tradition) and the COns<:IlSUS of Muslim scholars. Allah, Exahed

M He, ny",
"; . A.nd if you are on u journty fmd Ulnllor find
Q.

a "curi,,, deposit/should bel

tw"...~

lCribr, th"n

(Qu rln: Al -Baqarah: 283)

Wh ..... the Prnphl't (PBUH ) died, his annor had bn mongooge<! '. SchoIan
unanimouslyagrrt that mortgaging is p... missible on joo rneysand

tne majo rity

of scholars maintain that mortgagi ng is also prrmis.!ible in rnidencc. The wisd.om ~hind the. lega lity of mortgaging i. to keep p~rlies and proled them again.t loss.

"

I TRAOETRAN~ONS

Allah, Exalted be He, commands Muslinu 10 write down the debts IU

He f.;l)'ll:

"0 y"" w/w haw btll,wd, whtll you to1l1r<lC11I dtbt for 01 spedfUd term, Writl I1 410,.," .. (Qur'ln: Al -Baqarah: 282)
And He says:

-And if ytI1l ..rt on G journey and c"""1I//1"" "KriM, then a IUrityfhpmit fslte"ld kJI4km ... (Qur'S,,: AI-8aqanh: 283)

Such pennissibililY is considered of the mercy of Allah upon His servants

as He guides them to what benefits them. The amount, quality, and ducription oflhecollalual must be known. The
dtbIor mm! bc.lqjally permitted to contract; he must ~ the coUaten.1 Or haw ~ission 1 Ikal ((Inclusively with iL Man \$ pmninN to mortll"~ 0 his own property for the drot 01 anothrr. The collateral mu'" be a PI'OJ"'" Y

valid for selling in ordrr 10 enable the c..roilor 10 maM we ofil in case of non fulftllrnenL It is permissible to stipu late the collateral in or after cond uding the contract as Allah says;
':And if,., .. .are on 11 Journey IIlId '<lnllot find .. ucurity dtJH>$l, {mould wj , .. knt .. ~
11

KrlIH, then

(Qur'ln: AllJaqarah.: 283)

Thus. Allah, Exalted ~ H(, has made tlH: stipulation of the collateral a substihlle for writinS the (onlnet of debt, which L! written after lhe debt becomes in effect and obligatory to be settled by the indebted person. The collateral I. obligltory to ~ gi~n by the debtor, as he owes the (",wtor who is not obliged to accepl the collaterallnd 11 permitted to cance! the mortgaging contract &J lie alone has a right to claim it. [t is permissible for Ihe dri>1OT 10 mor1pSC his sitar.. of a proper!)' owoW by him and orhe r. because he is permitled to sdlllis shan!: to pay back his debt.
It is pe.-missibl., ID morlpge Ihe pureha.sed .rtid., for iu price, as Ihis

pric. i. a liability on the deblor, i.e. the mortgagor, and the purchued artide i. pos.seued by him, 10 he ca n mortg.ge It. For example, if .omeone

Chapt.r 12, Mortgage

bUY$ a hous~ or a car on credit or in cash but the price is not paid yet, he is permitt~d to mortgage it fO U to pay its price to the seller. However, neither the debtor nOr the cr~ditor i. p"rmitt~d to dispose of the collatera[ except after getting the permission of the other. If eith~r of them difpofes of the col[ateral, he cau~es a [on to the other. That is, if the debtor -difposes of the collateral without the creditor's p"rmi~sion, he deprives him from securing the deal. Similarly, if the creditor disposes of the collateral (without the debtor's permission), h" will be disposing of a property that does not belong to him. Concerning making use of the collateral, il is to be according to what the two parties (the debtor and the creditor) agItt on. So, if they agree on renting or concluding any other transactions with regard to the collateral, it will be p"rmissible. However, if they do not agree (to make use of the collateral), the collateral remains SUSp"nded until it is redeemed. The debtor is to be made able to maintaio and keep the collateral; for example, watering, pollinating, and treating the trees. as this is done for the benefit of the collateral. The earnings received from the collateral whether by itself (such as an animal when it womes fatter or is ab[etodo some work) oTthrough its product (such as offspring, wool and whatever is begotten from it) l = consid",red part of the collateral that can be sold with the collateral for fulfil[ing the debt. The same ro[ing applie~ to the crops of a mortgaged land. Besides, if there is any damage caused to the collateral, the compensation for this damag'" is to be joined to th. collateral, as it is a substitute for part of it. The debtor must provide the eXp"nditun:.s of the collateral. This is because Sa 'ld IbnulMusayyab reported on the authority of Abii Hurayrah (may Allah be pl. ased with them) that the Prophet (PBUH) said:

"When someone mortgages an ilem, it is not to be foreclosed; any incre/lse in its yalue goes to him and allY loss or liability must be borne by him.~
by Ash-SMfi'! and Ad-D!raqUlnt who grades it as having a good and authentic chain oftra nsmittersl' This is h<:cause the collateral is the property of the debtor and it is his responsibility to provide whatever it requires for it. maintenance. Aim, it is th~ resporuibility of th~ debtor to pay the Rnt of the store where the collateral i~ kept, the wagts of guarding it, and the wages of grning the mortgaged cattle.
(Rebt~d

'"

1 TRADE TRANSACTIONS

If part of the collateral is damaged, lhe rest is legally considered collateral for the whole debt as the debt is guarant~d by the whole collateral, and as long as part of the collateral is damaged. th en Ihe rest is collateral for Ihe whole debt.
If t he debtor paY" hack part of the debt. no part of the collateral is to be
redeemed until the debtor pays the whole debt.

When the drbt is due, the debtor must pay back the whole deb t to comply with , h . contract, whether h e has given a collateral or not. Allah, Exalted be

He, say"
", . Ilren let /rim who is mtrU$ted di$harp Iti' trwt {ftl ithfollyJ and let himfell' Allah, hislAJrd .. (Qur'An: AlBaqarah: 283)
,M

And He also says:

H...

Dnd notltaw tiny/king out of it...~ (Qur'An: Al -Baqarah: 282)

If the debtor abstains from paying back the d.bt ID the creditor, h. is

considered a procrastinator and then the judge is to oblige him to pay back the debt. Ho~ver, iflhe debtor slill refuses 10 pay hack Ihe debt, the judge must imprison and effect discretionary punishment on him until he pays back the debt. Then, if he does not pay back the debt, the judge is to ~ll the collateral and pay back the debt, The judge must behave On behalf of the debtor when the latter refuses to pay back, since such a debt is an obligation on the debtor and the collateral is a mere guarantee for the debt to be returned when due. [home money remains after paying back the debt, it must be given to the debtor as it belongs to him. Yet, if the money of the sold collateral does not cover the debt, the rest of the debt is still on the crt<lit of the debtor and be bas 10 return il. If the collateral is an animal which needs ex~nditures and is kept by the creditor. the w~ Lawgiver ~rmjts him 10 ride it, ifil i. a riding animal, and to milk it, if il is a milch animal. provided that he provides the expenditures. The Prophet (PBUH) says:
"The mortgaged anim~1 (on be used for riding as long as it is fed, and the milk of the milch animal mn be drunk acwrding to whal one s~nds On it. Tht one wlw rides the animal or drinks its milk should provide the exptndilUrt!S."

(Related by A I- Bukh~ri)'

So, whoever rides the animal or drinks its milk must provide the expen ditu..,! in return for his making use of it. Any other utility gained from this animal b<:lOllgs to its ownu , the debtor.
Ibnul-Qayyim (may Allah b<: pleased with him) says:

"

"The Iladlllr as well as Ihe generlll principles ,,"d the originlll rules of the Sharl 'alr (Is/urn;, Law) indl, ..te that the Mus/im

must take care of tire mortgaged an;mal in ordtr 10 observe l/re

ordtrs of Allah. Moreover. Ihe Qwner of such an animallras tire

right of owne rship and the mortgagee has th e right 10 guaranltt his OWII property (by keeping th e collattml). If Ihe mortgagee keeps the animal and neither rides nor milks it, he misses his right 10 mah use of it. Thus, depending on justice, analogical deduction , as wdl as the interests of the mor/gager. mortgagee. and the mortgaged onimal. the mortgagee is pamitted to ride and milk the mortgaged animal in r~turn for his pmviding its t xptndUurts. When the mortgagee lawfully makts use of the mortgaged animal and provides the expenditures. this satisfies the interests of both the mortgager and mortgagee and keeps their rights."' Some oflhe faqih. ' (may Allah have mercy on them) maintain Ihat there are two categories of w llaterab: The first needs npenditures while the second does not The first category of collaterals is divided inlo two .ubcategories. The firs! i. the animal that can be ridden or milked whose ruling has been explained above. The second subcategory is not to be ridden or milked such as the male or female slave. The mortgagee i. not permitted to make use of Ihi$ kind of collateral$ except with Ih e pcrmi$sion oflhe mortgager. So, if the owner oflhe slave permits the mortgagee to make use of the slave provided Ihal the mortgagee provides th e expenditures. then il is permissible, as this is considered a sort of compensati on. The sc<:ond category of collaterals is the kind that does not need expenditures, such as a house, belongings. and the like. The mortgagee is permitted 10 make use of Ihis kind of collaterals with the permission of t ile mortgager except when this collateral guarantees a loan. for it is prohibited to gain any interest out of a loan as we previously nplained that it is a kind of riM .

n
Endnotes

! TRADE TRANSACTIONS

I AI-Elukhirl (:!'lIS) [tSIllil , So..bo AIBukhirl (20611) 1-11:1821 ond Muslim (4090) [61401. 2 Ad-[);i<aqu1n1 (2897) [lI19l . nd AI.8oyba<[1 (Iml) (6/651. Se< also !bn Mijah (244I) (1/161]_ J A1.B.ukIW1 (2512) IS/m]. 4 s.. r!lt fOOlrotes in AT-/!",.,j Itl-Mwrlri ' (SI9II . S l'<IqiJJ: A.cholar oflslamic IUIisprud<nc .

CHAPTER

Guarantee

GUln.JIlee ill ~ of the legal WlI)'IIG rttOrd debu. ln Islamic terminology. it is the guarantors eommitmenl In p;ay back the debt of InOlhu person while thll person is still coruilkred the original debtor. In this case, tht gtanntor must fulfill the obligations oflhe debl:or. For aample. the guarantor may say tn the creditor. - , guarantee the debt of 50 and so,- Guarantee is permissible according to the Nobl e Qur'~n, the SU"rlalr (Prophetic Traditi on), and the

co nKnsus. All ah, Exalted be He. says:

. .Olndfor he

"'''1'1 pl'lHluu. il 1$ { flu ,,,,,,,,,rrI 011 " .... md~ '_d,

(Qurln: Yllsuf. 72)

....d' "'" rnporulblejor it.M

l'M word "nspomllllt'"" implin that this person is. guarantor.

hnlm At.TIrmidhl maIn, LS. marfu " (~able) /ltutfth, that the Prophd
(PBU H ) says:

"The gwm:lIlfOT iJ rf'$pon$iblt jnr ({XIying) the thing ht guaranltld:'

I T RADE TRANSACTIONS

Schola,.. unanimously agree Ihal guarantee i~ generally permissible. The intertst. and needs of p"0ple ne<:es.sitate the permissibility of a guarantee, as it is a means of cooperation in rightoousness and piety so as to rtlieve Muslims from difficulties. In order to maintain the validity of the guaralltee. the guarantor must be legally permitted to di.,JX>$ of his assets since guarantee is a form of financial obligation. So. a child or a ~ak -minded interdicted of his legal capacity is not permitted to be a guaranlor. Morrowr, Ih. guarantor must accept (willingly) to bear Ihis liability, and ifht is forced to do so, then the guarantee: bcwmes void. Sillce liability is a volunlary dedaration to fulfil! an obligation, a guarantors con~nt is obligatory, as is Ih. case of financial donation . Furthermort, guarantee: is a kind of benevolence to benefit and help th e person, so it is imp"rmis.sible to take compensation out of it. That is, compensation rtsulting from gnarant.., is as prohibited as a benefit resulting from a loan. The guarantor must pay the debt on behalf of tbe gnaranteed perwn when tim e is dn. for the creditor to ask for it. When the gnarantor pays the debt, h. is permiued afterwards to take back the ~ame amount of money from th e gua ranteed person withont any inlerest, sine.. guarantee is legally intended to show leniency and help the nee<iy, not to exploit and place burdens upon them.
guarant~

Guarant.., is valid when the guarantor gives his consent by whatever

words indicate this. such as "1 am responsible for Ihis debt." "I guarantee this
debt," "This debt is on my liability." and the like, since the Llwgiver ' does not necessitate a spedfic phrase to be said and it dep"nd.! on th~ COmmon convention of the society. creditor has the right to ask the guarantor or th e guaranteed p",..on to get his money ba,k a~ it i~ a debt Qn the liability <,If\x.>th Qf them. The Prophet (PBUH) says: "The guaranror
jj
Th~

respomible for (paying)

th~

th;"g he guortmteed.

(Related by Abo.l D;lwild and At-Tirmidhi who grades it a /lasan (good) badith )' This is the opinion of the majority of schola,... However, some scholars are of the opinion that the ~rtditor has no right to ~sk the guarantor to pay him ex"'pt when il is difficult to ask the guarant..,d person for the d ebt. Thi. i. beca~ a guarantor is legally considertd subsidiary to the original debtor, and he is not to be asked for anythirtg except wh ert it is impossible to get the debt

OuP"" 1.\: Gu.ar.m.",

from th~ debtor. Guarantee, like mongaglng, i$ ~ w~y to guarantee the right of tlKufilitor; tlKcollau,nJ is not to tH, taken by th e mortgagee except when the mongager a nnot pay bad. the debt at its due time.. It is not accrptabk to Ihe guaranlor IQr Ihe debt 'Ill long as tlK guaronlm person can be: found and is able 10 pay. According 10 common convent ion, th e creditor asks Ihc guarantor for the debt on ly when the guaranteed is not found orwhen he is unablelo pay it back. Th is ;s the mean;ng Implifil by Ibnul.Qayyim whocondudes, .. This

"

is IM p<efJOllckronl view <IS ,..,.. sa."

The liability of the guaran tor is not absolved until the liability of the
guaranteed person is dischargfil whether by paying back his debt to the creditor or by tH,ing cJ[[used by him. Moreover, it is perm issible for the ddMor to have a numtH,t of guarantors whnher every guarantor claims liabilily on Ihc wholc debt or on only part of i!. However. the rel; poosibility of nch of the guarantors is nOI absolved untH the responsibilities of an of them are discharged or when thc responsibility of the guarantcrd person is ab50lvrd. I1 is not necessary for th e guaranto r to know u..- guaraotet"d person 10 make his guarantee valid. Thc guano tor can simply uy 10 the ci"tditor. "I guaranlee IlK person who is indebted 1 0)'QIL" Likcwi$(, il is not necessa ry for the guarantor to know th-e creditor as th-e consent or knowledge of either th~ creditor or the guaranteed pel"$On is nOI necn.sary to mau the guarantee valid. In addition, it is permissible to guarantee a known amoun! or an unknown amount if il iI to be known afterwards. as Anah, Eultcd be He, "'}'S' .. 'mdfor II~ ",110 produus it is (tilt I"I'ward ofl a camdlload, and r am ,....p"'..,blrfor it.H (Qur'an: YOsuf: 72) This i, because a earners load iI unknown at firsl oot thtn bomes known . Thil vtrse implies the perm issibility of guaranteeing a known am(Hlnt or an unknown amount if il is to be known afterwards. It is permir.sible for Iht guara ntor to bear the sdi er's responsibility if the commodity turn, oulln tH, pos~ssed by 5OmC:One el.e. Also. il i. p<'rmi ..ibk for a Muslim person to guannlC<" IM: obIigalio,," of 5OmtOI[C eis<e, such 11 p.a.ying back his debt and lhe like.

" Endnotes

I TRADETRAN5.ACTlONS

I Ahmad (21195) (512671, AbO /)h'l1d (1565) [31527J. Atli,midhl (2125) [1/~33 1 Iba MJ.j.h (2405) [1/l4 1] . 21ho La~r of SIulrl",u, (lllamic L.>wj is Allah. Exalted be & , tbt W"m can Wo ID1Il00 Prop/>c1 (PBUH) he "C""" ... wM<l but ....tw _ m'ftIed 10 him by Allah. 3 ~ (sood) a...nlh .o/illJlrll wt.- chain oltoansmiHion I. ~nkrd 10 It.. narntioo<:i on authority wi1h weak aa(titudt, and the IIP4hh is r1ft from antricily or bItmish. 4 $H: "f'IoI," AI-M""""Hn,," jll4111.

..m-

CHAPTER

Suretyship (Kafalah)
(Koif<ll.lh) is ones commi tment la pramtt he indebud ~rson to tht credilor. So, suR1yship concerns the guaranteed person himself and 11 is valid for anyone in ddM. No suretyship is petmiuible for prescribed
SU~lyship

pt.InWllneots beClIu~ surt'lyd!ip depends on ~rt.inty while prescriba! Pl'nishment5 an: not to be executed when combined with suspicious proou.
In addi tion. suretyship does not apply in a case ofl~al retributio n as it is to be

executed only on the off"nders. It is impermissible 10 execute legal retribution on a surety when th e one guar;lntd cannot be fOl,lnd.
The surety must si"" his consent in order 10 make lurel)'$hip valid. as he is nOl obIigd to kat the raponsib ilily of 5uretydlip. The obligatio.. o f IBr surety is Icg:ally ~ if tM guar-lIIt=!. perwn dits,. Likwi$oe, the Slimy is legally aiKolvcd when the guaranteed person subm its himsel f befon: tM , m;lito<" al tht d"" tim<: and place since he then fulflU. the obligation of thf: surety. However. if tbe surety cannot pre~ nt tbe guaranteed person at tbe due tIme or if the guaranteed person hu been abRIlI for I long period du ring

1 TRADE TRANSACflONS

which he could have been presented, then the surety must guarantee th e debt. This is according to the general meaning of the Prophetic iladith in which he (PBUH) says:

"The guarrmtor (hfr(' the sur('ty) is mponsible for (paying) the thing he guaranteed."'
It is permissible to guarantee the acquaintance of a P<'ISOn. For uample, a person comes 10 borrow money from another and the latter says, "I do not know you, so I will not lend you~ Ih en a third person .ays, "I guarantee my acquaintan, of him to you' meaning "I know who he is and where he lives". In such a case, the surety (who guarantees the acquaintance of the guaranteed person) is not only required to mention the name and address ofthe guaranteed, but he must also present him to the creditor. If the guaranteed person is alive and the surety cannot present him to the creditor, the su rety must guarantee the debt (pay it back) as he is the one who has guaranteed the acquaintan", of the debtor (the guaranteed person) and P<'rsuaded the creditor to lend him . Such an acquaintance is like saying, "I guarantee to present the debtor to you whenever you want."

Endnotes
I Ahm.d (llt95) ISIl67]. Abn D1wud (3565) ]31527). At TIrmidhl (2115) lb" Mlj.h (2405) 131141 1.
131 ~331 . nd

CHAPTER

Hawalah (Transference of Debts)

The foqlhi define a..wdlah as th( transference of a debt from the liability of tbe dtbtor to the liability of another !'CI'$()I'\. The trarufuence of debts ;1 pnmisslble and approvrd by the &",.lIh (Prophet ic Tradition) and the
rotlHTlSUl. 1~ Prophet (PBUH) says:
~Ij the debt of 0"" "i you is trtJniftrml (from your debtor) to" rich del1lor, he. should agru."'

TIlt same fladlth is narTa~ with. slight

Ilgrttl.

dirre~nce

in wording Il5:

WhO('\It'r 's transftrrted (from his debtor) to /I ricll debtor, should

.'

Many IIChol~rs maint"in that Ihue Is a conse nsu& on Ih" perm issibility of tile InmJie rence of debts. The transference of debrs I kind of 1en;ency legally intended to facilitate the transactions of pwple and help them meet their neW.s. ply back thrir ddJu wd be comfortable.

,.
of srlling.1-k says:
~E""n

I TRADE TRANSACTIONS

Some people think that the ~rmissibility of the transference of debts does not accord with analogical drduclion. They allege that it is a kind of selling a debt fQr another debt, which is forbkkkn. However, IM g""al scholar IbnulQayyl.m argues against this opinion and affirms that the ~rmissibility of the transkrence of debts is not an exception as it is a kind of paying back debts not

if th~ transftrt"u ofdebts iJ a kind ofselling a debt for IInother,

the Lawgiver dotJ no! prohibit it .inet the principltj of the Sharl"ah (bklmidaw) necessitate/he permi$$iNlity to tram/ora drotfrom the liability of the (J1'jginal debtor to the litlbility of a new ant (substitute
d ebtor)."'

There are some legal conditions on the transfe""nce of debts 10 make it valid. They'''' as follows: First: The debt must he under the responsibility of the substitute debtor since the transference of debts obliges the substitute debtor to pay the debt back. If the d ebt is not yet determined to be under the responsibility of the original debtor, its transference is not valid,.. it can be canceled. For example, it is not legal to transfer the price of a purchased article as long as it is still subject to approval. Also, a son cannot transfer his debt to the (...,dit of his father unless his father gives his w~n1. Second: The substitute debt must be identical to the transferred debt with regard to the kind, e.g. dirh~ms for dirhams. Likewise, the substitute debt and the transfer...,d d ebt mwt be equal with regard to the description, e.g. Saudi currency for Saudi currency. Also, the two debts must have the .ame time for due payment; whether they are to be paid in cash or on credi t. That is, the transfe...,nc. of debts is not valid if one debt is paid in cash and the other ison credit, or if the due timo of one debt is after a month while the time of the othe, is after two months. Besides, the amounts of the two debts must be the same; it is impermissible to transfer a debt of one hundred riyals, for e:<arn.ple, for another debt of only ninety riyals. This is because the t ransference of debts, like lending loans, is intended to be a kind ofleniency not a means to gain profit. Hence. if there is any difference in the value between the two debts, this will violate the legal objective of the transference of debts, which is leniency, and set instead the objective of gaining interests which i~ impermissible in the transference of debts

and in I~ding loan&. Ho~r, 10 transfer only part of hi$ debt 10 the credit of. s ubstitute debtor, or to 'Nnsfcr his debt to the credit of someone owing him more than the orig inal debt, and th e remaining debt in nch case i. still due for ils cred it or.

" it is pennissible for IM original debtor

Third: 'IlK

con~nt

of the original debtor is nccruary here, as he is

nOl obliged 1 P"Y baek his dmt through transference. However, 0 the COnK"1 of the c~ilor is nm necessary. Abo. tM COn=lll of the creditor is not Ileussary in order to I"nsfer the debt to t~ .:redit of a rich person who is nOI procrastinati ng. Rtther. suen a c.witor must be foreW \0 accept the transference of the debt and then he has Ih" right to cl aim his 1 0BO from the substitute debtor. The Prophet (PBUH) saY":

PTOmlSIination (tk"'Y) in ptlyingdtbls bylllWallhy puWrt is ;" jUJliu. S<l. if/M.ubl of Qflt of)'O<l u /nmsfrrml (from your debfOl') 10 01 rich debtor. M should ague..
(Related by A1 Bukhiri I nd Muslim) In another narnolioo of this badflh. Ih e wording Is:

Wh"..""r i. trrlrl$ferrtd (from hi. dwtor) 10 a rith rkblor, 5/lol.lld agree."

This mcaru; that the c ~ditor should agree on Ihe tnonsferene<" of his debt. If the lu~tllute debtor is not ab/c 10 fu lfil! the debt or may procrastinate,then tlKcreditorill noxobli~ loagree tothe- transference of tlKdebt 10 that person as this may darnage hb Inleres ..... In this rrspe<:1. the indebted persoru; who a~ able 10 pay back s/l<MJld hasten 10 be: ah..,lved by paying bad th.-irdebts to the original creditors nr t he lOubstilute c~di'on for whom the debt becomes enti tled through lramfe~nce. The indebted ptrsons ,hould not ruin their rtputations through procrastination. Often. we hear Ihe crtditor{ complaints when they , uffi,r from the illega l delay and negligence oflhe d ebton in paying Mek their debts. AJs.o. _ frequently hnT IlK crmitori complaints owing 10 the proc:rastinalion of the rich substitute debtors In paying back I.... ir dl.K' transf.,~ debts, sine<" they cause a lot of difficulty to the creditors. This has made tlK trallsference of debts. ~pu1sive maller which many people di.like baust of the injustice of th e sub!;titute debtot5.

"

rTllAOE TRANSACI1QNS

When the traNiferenceof debts mttU its aro~ntionw legal conditions, the dd>! transfers from the liability of the original debtor to the liability of a

substitute debtor. and the original debtor becomes absolved. This is becau&e the tran~ference of debts means the transferen ce from 'lne liability 10 another.
Thus. theereditor is nol permined to claim his righl from the original debtor;

rather. he has 10 refer 10 the substitute debtor in order 10 get back his right or rnch an aglftIllnll with him. n..,rdOrr, the kgal transferm 'lf debts is P<'""issible way 1 pay back th.. debts. as it makes things easy for ~ple when 0 they make useofil ln I good manner without depcion Or procrastination.

Endnotes
I AlBuI<h1rt (87) It/S8S) a nd Muolim (3976) ISl4;1).

2 MrnIioocd in tM book entitled'AI-null (515871. 1 See: " rldm Al-M ~ In11 /1801.

CHAPTER

Commissioning (Wakalah)
In Islamic terminology. wakAlah (commissioning) refers to the act in which

a legally accountable person appoints another legally accountable perwn to act on his behalf in a certain matter in whkh such authorization is p"rmis.sible. Commissioning is permissible according to the Noble Qur'ln, the SUIIMh (Prophetic Tl'l\dilion), and the CODSl:mWl of Muslim scholars. Allah, .Exalted

tit He, sa)'$:

, S<J

Jt lld "lit ofyou with Ihls l'ilvrr coin "fyours to tM dty.

(Qur'.1n: Al-Kahf 19)

And He IlaYS:
{J o.~ph J

said, 'Appmntme <WeT flu .kJrmmua of the ",,,.t .: H

(Qur'an: Y(\suf. 55)

And He aIw says:

": .. and for !iuJu

empl~d

t" coUu! [Z<lkdhJ ..."

(Qur'1n: At-Tawbah: 60)

lTRADETRANSAcnONS Moreover, the Prophet (PBUH) aUlhoriZl 'Urwah IbnuJ-Ja'd to buy a ewe. ' authorized Abil RHi' to ~rform the maaiage contract on his behalf with Maymunah,' and used to send his men to co11:t Zak<lh. In addition. AJ-Muwaffaq and other scholars maintain that there ioi a consensus on the pennissibility of commissioning. The wisdom behind this ~rmissibility is that peopl.'. needs n :essitate th. legality of commissioning since not every person can do himself whatever he nuds. Whal is Required in Order 10 Make Commissioning Valid and Confirmed Commissioning i. confirmed by any statement that indicates permission for it (e.g. "Do so and so" or "I perm it you to do so and so"). It is permissible to accept commissiening inslant~neously Or to defer it. This is due to the facl that the Prophet's representatives deferred their acceptance when he (PBUH) commissioned th em. Furthermore, commioisioning can be timed or conditioned. For example, the authori""r may say to Ihe representative, You will be my representative for one month" Or "When the le...., period of my house expires, you can sdI it." The authoriur must designate a particular perw/l., w con'uni!.Sioning becomes void if the authorizer says, ' I authnri"" anyone of theR two ~rsens to be my representative." Alw, commissioning be.:omes void if the authorizer appoints .omeone whom he d""s not know. Matters in Whi,h Commissioning is Permissible It is ~rmissible for a persen to commission another in matters in which repre",ntation is permitted, such as concluding or canceling all kinds of contraclS. To clarify. selling. buying, renting, lending loans, and speculating are examples of concluding transactions. while div/me, khul' (th~ wife's rele...., for payment), emancipation. and cancellation of the sale are examples of canceling the transactions. Commissioning i. also permissible in the matters relating to Allah's righl. (some acts of worship) in which authorization on behalf of somecne is permissible. Thi. is like the distribution of Zak<lh and charity, fulfiIlment of vows, expiation, and performing I1ajj and 'Umrah (Lesser Pilgrimage), according to the related authentic proofs in this ..,sard. Howevtr, designating a representative is not ~nnis.sible in the matter~ relating to individual aCIS of worship, in which ~uthorization on behalf of someone is not permiMible,

Chap .., 16, c.,mmWionios (W~J"'h)

such as ~rforming prayer, fasting, and the purification of major and minor ritual impurities, since the", acts of worship are to be oo",rved by the legally accountable person himself. In addit ion, commis.ioning is permissible in in,,",stigating and executing the prescribed punishm ents as the Prophd (PBUH) said:

to the wift ofthiJ (man) and if she wnfess", (that 51", has committed adultery), then stone her to demh'"
~O UI1~YS! Go

(Related by AIBukhAri and Muslim) ' Th e authorized (commissioned) person has no right to designate another representative to act on his behalf except in the following matteCll'
Fint: "When the authorizer permits the authorized person to do w by saying wmething like, ' You can designate a "'p",sentative to act on your behalfif you like) or (Do as you like),"

Second: If the designated act is not to he carried out by the authorized person, as he is an honorable person who is far above doing such an act. Third: If the authorized person is unable to carry out the designated work. Fourth: When the authorized person cannot do the designated work properly, In the afo",mentioned four cases, it is impermissible for the authorized person to designate anyone except a trustworthy repre",ntative. Commissioning is permissible for both the authorizer and the authorized person as it is considered permission given by the authorizer and a ~rvice rendered by the representative, but both are not obligatory; each of the authorizer and authorized person is permitted to cancel commissioning at any time he desirr$. Matters Nullifying Commiss.ioning Commissioning;" nullified by cancellation, death, or absolute madness with "'gard to either of the parties. This is because commissioning depends on the life and sani ty of both parties, so when one party lacks either of them, it becomes invalid. Commissioning also ~comes in".lid if the .uthorizer disch.rg~ the authorized person, or when either of them is interdicted of his legal capacity due to his foolishness, (since he then lacks the authority of disposition).

I TRADE TRANSACTIONS

When Commissioning Becomes Permissible

Whoever has the authority to dispose of something can authorize or be authorized in ...,gard to this same thing. However, whoever has no legal authority to dispose of something, his representative has not the authority to dispose ofthis same thing. with greater reason. A representative who is authorized for buying and selling is oot permitted to sell Or buy from himsdf as the customs necessitate that a person sells and buys from others not from himselfIest he should be SUSJXcted. Likewise, he is not permitteil to sdI or buy from his ron, father, wife or those whose testimony in hi. avor is to m, rejected because there is suspicion of favoritism and partiality due to family relations. Actions ReJated to the Authorizer and the Authorized Person The authorizer must fulfill rome legal commitments with regard to transactions, such as dd ivering the price ...,ceiving the purchased article. canceling transactions for defects, asking for his rights and guaranteeing the rights of the other party. As for the authorized person who is authorized for selling, he may deliver the purchased article but he is not permitted to receive the price without the p"nniss ion of his authorizer Or at least a situation indicating his permission. For example, the authoriud p"rson may receive the price if h .sells the artide in a sto..., wh ere the price may k lost if he does not ",ceive it. An authorized person who is authorizrd for buying may deliver the due price to complete the transaction. However, the person authorized for settling a dispute is not p"rmittrd to receive the price, bu t the person authorized for r~eiving the price i. permitted to settle the dispute u it is the only way to receive the price.

Commihnents of the Representative

The authoriud person is accoumable. But. he i. not liable for thing. that are lost or damaged with him as long as he does not neglect or ,"](Cerd limits with regard to such items. However, ifhe negl~t exceeds limits or rrluses, without any legal excuse, to pay the money due for the authori",r, he is to k liable for what is lost or damaged and legally obligrd to pay any money due to the authorizer. The authori7.ed person is to be trustrd with gard to the deSignated work whether it is selling, renting, or the like. In other words, what he says about the price, the rent , or the damaged artides is to be trustrd and believed. And Allah know. b~t.

Ch.pta 16: Commi"ioning (WakJt.h)

"

Endnotes
1 AIBukhl r1 (3642) (6/772 1. 2 AI Tirmidhl (841) 13/200J. 3 A1Bukhlri (23!4) (4161 ~l and Muslim (44! 0) (612041 _

CHAPTER

Interdiction

Ihertfo~,

Islam h'M bn onbintd to prott !he properties and righu of pcuplr; interdktion has lIftn kpliud on OOQ who sh(MJld ~ preventw. from disposing of their proJl(tlieS.
)urisprl.ldenlially speaking. interdklion meanS preventing someone from disposing of his property. What proves that interdiction i.! legaJiud is that AiWl. Eulled bt He, ...)'$ in IlIe NobLe Q"'ln:
"AItd df) not ziw th, _IcmiruJitd J'D1It' PI'f1IH'I"y, ""'leII Allah

Nu ....uk .. " ' _ of UlJ'a . _ for,.. ... "." provitk for Ihem witl! i' ffNI dolM 'Mm""" Jf>ftIk to tMt.. wvnI. flf IIP"."".u.u /drodru:u. And tal tM 0""'4/u fl .. tlKirobilitla/llltrll tMy mu:II mlUf';"ge<lble "I'. 11o"./f'/0" pnuiYe in the", ,,,..,,d judgment, IYlftIU tilt!' propert)l ID tlsnn..... (Qu r'An: An Nill': 5-6)

I TRADE TIVINSACfrON S

The.., two ""rses pr""" that Allah, Exalted be He, has dec",ed interdiction on the weak-minded and the orphans lest they should waste or destroy thdr prop<:rties. MOrffiver, hoth are not t o be given back their property except when they become of sound judgment. Th e Prophet (PBUH) hirnselfinteroicted SOme of his Companions (and hM old some ortheir propt'rties) to ..,ttle thdr debts'.

Interdiction Is of Two Types

The First Type of Interdiction is the one imposed for safeguarding others' share in the prop<'rty of the interdicted person, as the case of interdicting the insolvent person for safeguarding the .hare of the creditors in his existing prop erty. For safeguarding th e .hare of the heirs in the heritage, interdiction is also imposed on the sick person to prevent him from bequeathing mo", than the third of his property. The SKond Type of Interdiction is the one imposed on the p<:rson for his own benefit, lest he should waste his prop<'rtr or destroy it. Interdiction in this ca.., applies to the minor, the weak-minded and the insane. for Allah, Exalted be He, revealed: ~And do notgiw the wellk-minded yourpropn-ty..~ (Qur'an: An-Nisi', 5) Some scholars maintain that those meant in this ve= are the young child",n and women, thus the guardian should not wastefully gi"" them of his money. Other scholars are of the opinion that those meant in the verse are the we~k_mind.d, the young chi ld ",n and the insane persons; they are to be denied the right to dispo.., of their properties [est they should waste them. Allah, Exalted be He, make, the property - in the a~mentioned ver'" _ attach ed to the addre,..,.s ..... ~ur property...~ since they a", appointed as guardians of the property of the interdicted to protect it.

The First Type: Interdiction for Safeguarding others' Share

Thi. type of int~rdiction applies to the bankrupt, whose remaining pmp<:ny is insufficient (when wld) to meet all hi, due debts. Theuupon, he is to be denied the right to dispose of hi, ",maining prop"rtylest he should ca~ harm to hi, creditors. As for the insolvent debtor who is unable to fulfilllUlY of hi s debts, he is not to be asked (by hi. creditors) 10 pay them, but should rather be granted a gracr perioo until his financial circumstances allow him to pay. With regard to this, Allah, Exalted J,., He, says:
~And

ifsomeone ;, ;n hardship, then {let th~ I>eJ postpont ment

...n
(Qur'~n:

"nlil fa ti..... afJ _

A] .Baqarah: 280)

Regarding the favor and reward of granting a grace period for the inrolvent person, the Prophet (PBUH) says:
"He who is pl!a.ed to be granted shade by Allah under tile shade granted by Him (on tile Day of Resurrection) should relieve an il1solvent person:
Yet, discharging th e insolvent person is b<:ner than granting him a grace

period, in consideration of what Allah, Exalted be He, says:

But if y au give [from y aur right as/ charily, Ihen It is belftr for yau ... (Qur'~n: Al-Baqarah: 280)
M H

As for th e debtor who is able 10 settk his debts. it is impermis.sible la

interdict him, since the", is no need for that. However, ifhis crediwrs ask him to pay what he owes them, he is to b<: legally mdered to pay his debts. for the Prophet (PBUH) says:
"Prowwinl1tion ill paying debts by a wealthy mnn is injustice: '

This aadith signifies that wh en an indebted weahh y person procrastinates in paying his debts, he is thus causing injustice to his creditors since he ",fuses to pay what he owes them. If the indebted wealthy person ",fuses tn pay his debts, then he should b<: imprisoned. In this regurd. Sh ci kh Taq iyyud- Din Ibn Taymiyah (may Allah haw mercy on him) said:

". ,.As for the person who i$ able to meet hi> debts and (though) refuses (to pay them), lie is la be If'galIy forced to pay by means of beating or imprisoning him. This il a/50 the view of the followers of MJlik, AshShclfi'i. Ahmad and orher scllola rs.

He added:
". ,.It has nor conle to my know/edge that there ;, a disagreement among KhoIars in t";s concem , '

[n addition, Imam Ahmad, Abil Dawfld and other compilers of Hadlth rdate that the Prophet (PBUH) says;
"Procrastination in paying debts by a wealtllY man maw ir permis.sibk to be dishonored (by tile creditor) a/fd to be punished (by tile judge)."'

The word "be dishonored" means to b<: complained about (by his creditors), and "b<: punished; meanS to be impri soned. The person procrastinating in paying hi. debts deserve.! di$(r~!iOl\ary punidlmtnt ~nd impri~onmtnt. He is

I T RADE TRANSACTIONS

to tw: repeatedly punished in this manner until he fulfills his debts. In case the debto r insim on delaying his debts, those in authority."" to intervene and sell his property to pay the debts he owes. This is because those in authority are to take th e place of the person who refuses to pay his debts, in order to puvent any harm to the creditors. This is according to the b.adith in which the Prophet (PBUH) says: "OMe should Mot harm others tlor should one seek benefit for oneulj

by causing hMm to otllers."!

From what has bten demonslrMt<l , it apptars Ihallhe"" are two stales of the debtor: T he rlJ"Sl slate is when his debt is defer""d. Thereby, he is not to k asked to pay it until it is due, nor is he obliged to settle it hefo"" t hat. In case Ihe debtor's property is insufficient to meet his deferred debt, h. is not 10 be interdicted nor be denied the right to dispose of his property. The seco nd st ate of tbe debtor is when his debt is due. In this state, there are two oth er caSeS of th e debtor: The first u .se is when the value of the debtor', property exceeds his payable debt. in which cast he is not 10 be interdicted, but rather be ordered to pal' his debt when the creditors ask for that. If the debtor refuses to pay (upon the cred ilor's demand), he is to be punished with a diKretionary punishment and imprisoned until he pays his debts, If the debto r bears both punishments but stil l refuses 10 pay, those in authority are to intervene by selling from his property what suffices to cover the debts. The second case is when the value of Ihe debtor's property is less Ihan his due debt; in this Cost, he is 10 he interdicted if his creditors ask for th eir money lest he should cause harm to Ihe mon ey he owes them. This is according tothehadirh narrated by Ka'b !bn Malik (may Allah be pleased with him) which states:
"The Mes..nger of Allah (PBUH) interdicted Mu '&Ih and sold hi:< property (to fulfill the debts Mu 'ddh owes)'''

(Related by Ad- D!raqulnl and Al -H!kim and Ihe latter deems it a oab.ib. (authentic) fladirh) Ibnuj"Sallh s.aY', "Thi, hadith is surely reporrtd about the Prophet (PBUH)." In Ihi' case, if the debtor is interdicted, il is to be publicly decla""d lest people should be deceivt<l by him (in financial lransac tiorn), causing thdr property thus to be wasted.

There are Four RUlingll on the Interdicted Person

The first ruling is that his debts are to b<. paid from his property b ~fo", being interdicted, and from whatever property that comes to hi. pos~sion afterward<, su<;h as the money he obtains by mean. oflegacy, an injury compensation, a gift, a sha", from a will and the likt. The interdicted person is to be denied the right of disposing of h is property possessed before and after king interdicted, The",by, any disposal of his property becomes ineffective sin"" the rights of his cmiitOI'li a", due on his property. Thus, he has no right to grant any part of his property to anyone by any means. Even kfo", king interdicted, it is prohibited for the indebted to dispose of his property in a way that Causes harm to his creditors.
Iml m Ibnul-Qayyim (may Allah have meocy on him) says:

it will be in~alid for him to donalt thereof, in " way that causes any harm to the creditors. whether thou in authority ha"" interdicted him or not. This is th e opinion maintained by Imllm Md]ik and Shaykhul-JsMm Ibn ToAymiyah (may AUah ha"" mercy on him). Morto )'(r, it is the scundut ~;ew which bt:jits Ihe original rulings of the li!1nbali School and comes in a.:cordanct with the principlesofShari'ah (Islamic Law) and its rulings. This is ~C4luse the creditors' rights must be paid from the debto rs entire property. That is why those j" authority interdict the debtor. if the creditors' money "",re not to be paid from the debtors entire property. those i" authority would not ha"" the right to interdict him. Therefore. h is case membles that of the person on the deathbed as he i, not alIowW to dispose of hi. property. If the indebted person "",re gi~m the legal right to donate, this would waste the creditan' right., and the Sharl 'ah never legislates something like this. for among the principles of Shari 'ah is safeguarding ptopks rights by ail ways and blodcing means leading to wasting th=:'
The second ruling i. when a cud itor find. the very piece of m.rchanrus.. he hu sold 10 a bankrupt person or has given him as a loan or as a ",nlro article before interdiction, in which case the creditor is allowed to take. it back. This i. b<:cause the Prophet (PBUH) says:

"If the debtors entire property is required to co""r his debts.

"If a man finds his ""ry things with a bankrupt person, then he has more right to ta~ them back than anyane e/je." (Related by AI-Bukhlrt and Mu.dim) '

I TRADE TRANSACTIONS

In addition,jaqihs (may Allah have mercy on them) have stipulated six conditions for taking back an amount of money (a property or a piece of merchandise) given tothe bankrupt perwn before he is interdicted. The fint (ondition is that the bankrupt perwn be alive until the owner of the piece of m ..chandi.., tahs ba ck his property from him, for AbO D~w\id related that the Prophd (PBUH) &aid:

".. .If he (rhe bankrupt buyer) dies, then the owner of the property (i.e.
the seller) is /0 be rreared equally like the credirors (with regard ro distributing th t estate)."
T he !lecond condilion is that the bankrupt person st ill owes the whole price. Thereby, if the owner of th e property is paid a part of its price, it will not be valid for him to take it (the property) back. The third condition is that the bankrupt perwn still has the very property (he took from it, owner). If the owner of that property finds only part of it. he is not to take it back, since h. has not found all his piece of merchandise but only part of it. The fourth ~ondition i5 that the piece of merchandi~ be intact and nothing of it$ properties has changed. The fifth condition is that none has any right to claim with regard to that piece of merchandise. for the bankrupt person may have mortgaged it or have used it in any other transaction. The sixth condition is that the piece of merchand ise must not have increaSfii a continual increase, as in the case of animals that fatten and increase in weight ' . If all the above-m ent ioned cond; tions a re fu Ifilled. it becomes penn is.sible for the ownerof the piece of merchandi5eto take it back from the indebted person when t ht latter i, dt clared ltgally bankrupt. This is according 10 the afores;,id b~dith, in whkh the Prophet (PBUH) nys:

"If a man finch hi. very things with a bankrupt, then he has more right
to take them back than anyone else."
The third ruling on the interdicted ~rson is that the creditors are not to ask him to pay his debts after being interdicted until the interdiction ends. During the period ofinterdiction, if one sells a piece of merchandi.., for the interdicted or lends him an amount of money, one is to ask him to pay only after the interdiction has ended.

Ch.P<Cf 17: lntordie.k,"

"

The fourth ruling is that those in authority an: to sell th~ interdict~d pe..son's property and divid~ its pric~ among the creditors, to pay his due debts, according to the amount of debts he owes to each. This is because it i. for this purpose he ha. been int~rdicted. Thus, it will be procrutination and injustice to them if the payment of debts is d elayed. Those in authority are penniued to let the bankrupt person keep what he is in need of; his house, provi~ions and the like. As for th~ defern:d debt, it d""s not become due wh~n on~ becomes bankrupt. Besides, the defemd d~bt is not \0 be part of the due ones, since the bankrupt person has the right to delay the payment of a deferred debt until it becom es due; yet, he is still obliged to pay it. Moreover, this right to delay the payment of a defern:d debt is not to be violated, unlike hi. other rights to dispose of his n:maining property. After dividing the property of t.he bankrupt person to settle his due debts, interdiction ends without a legal verdict from those in authority if the property covers all his debts. since then: is no more reasOn for it and debts are settled In case the sold property ofth~ bankrupt person dl>e'5 not cov~r all his debts, int erdiction does not end exc~pt with a legal verdict from those in authority, who have interdicted bim and thus they alone can legally end this interdiction.

The Second Type of Interdiction

This type has been ~stablished in the Sl!ar/llh (Islamic Law) for the benefit of the interdicted person for safeguarding his property. This is because Islam is the religion of mercy and it does not leave a useful matter but urges ~ple to do it, nor does it leave a harmful matter but warn. against it. Among the things that show the leniency of 1,lam is giving the person who is legally competent the right 10 dispose of his property and carry on commercial transactions, within the allowable limits, to gain a legal profit, .ince this will benellt both the individual and the society. Howev~r, if a person is unfit to gain profits and to carry on trade due to being a minor, weak-minded or insane, Islam <unies him th~ right of disposing of his own Froperty, and appoints a guardian to protect, k"",p safe and increase his property. This is to continue until th ..e is no legal impediment; only at that time, he is given back his property in fulL Concerning this, Allah, Exalted be He, saY"
"A.ud d" twl giVfl the wak-mln/kd yt>ur proptrly, whkh Allah has

m./lde 11 mtans "fljjJl~UiItJlt for you.,.~

(Qur'An! An -Nid: 5)

"

I TRADE l 1lANSACTIONS
And:

.. A.lld tal the , .plums {in their ..oi/lt/", ""HI IMr mull them round J..dgment, '?'eMt '1It1. proPfrty ta them .. , (Qur'ln: An-Nid': 6)
m~rriagN"fe ap. Thtlll/)'O .. ~n:tit ill

These two noble verse. refer to th., interdiction er.,td for tht benefit of the p"rson (who is \lnabl., 10 dt.post of his property)since this protects his interests.
This ~ of inlenik lion is imposed on onl s propmy and liability. Thus, the interdicted perwn dOft not Iu.~ W right to d ispose of his own ~r1y through &elling. donating or olher kinds of trannetionl. Th.,rd"O<"e, it is legally inval id for him 10 be responsible for paying I debt, guarantee, sponsorship or the like, [.,., he should cause loss to other pt'llple's properties.
I! is invalid for one 1 be involved with a ~ak- mlnded pe'!.On in financial 0

aITain., such as buying. lending (money or objects ) or depo5iling. In case <>ne one is allowed 10 like back Ont'S proputy if it is still 'n!i>CI. If such a property is dama~d intentionally or unintentionally. it will desenoe no compensation since the _~k m;nded person is nOl kgally ~irm. to be liable
dOG,

for 5UCh drumg!'. In such a~, one is considered negleclful as one willingly
and voluntarily has concluded trannction with an Inlerdicted person. If the interdklc<l J>('rson (such u a minor or a weak-minded person) caU!\CS harm 10 a person or a property, he I, to bear Ihe consequenccs and be liable 10 any consequent fInes.. since the wronged party has not been negle<:tful nor ha.! iIt given the interdicted ptfSOn tilt permi"ion. 8e$1 dts., the jurutk rule Itates that in fnponsibility for d.lNgo:, both thost with IepI cap.acity and Ihou withoul art equal belort the law. With regard 10 this, lilt great scholar l\tuulQlyyimsaid:
"The mild. Ihe inSDnt and IM sJuping perlOn ",re 10 compensate for wlu!t 'hq Jpoi/ of propmia. Thi$ is Ont of tht (ommonl,. agrud upon rulingJ without which />lop/ts intcrem l<i(Iuld not"'" f .. /fiUcd. lfthoSl withollt kgal capacit,. ........ nOI to 'omptHSDUjor what tht)'

d4mage, peoplt ...".. Id damtJ~ rac.h otht,s proptrtitJ prtlalding that it iJ IKddml"'U,. And IIniltltHtioHaU,. dont.""
Interdicting the Mino r EDds In Two Cues:
The first case is reaching puberty, which is known by some signs:

The f'ust $.lgn for the male is diJ;charging semen in wakefu lness or during
sletp; Allah, Exalted be He, '-1ys:

Chapt<r 17: In!<rdiction

"And whell the childrell among ,.,11 uach puberty, k t them ask p"rmiuioll {at all time.j ... (Qur'An: AnNur: 59)
H

Puberty applies to a male person after the first wet dream. The second sign is the growth ofthe pubic hair. The third sign is be<:oming fifteen year~ old. What proves this is what . Abdulllh Ibn 'Umar (may Allah be pleased wilh him) said:

of A.llah (PBUH) CtJlled me to present myself infront of him on the Day oJOhe Battk of) Uhlld whild w<I$Jourteerr years oJ age at that time, and he did not allow me (to join the battle). Then he called me infront of him on the Day oJOhe Battle) of the AI-Khandaq (the Trtnch) when I was fifteen years old, and he allowed me (to join the battle):
"The (Rdated by AlBukh~rl and Muslim)" This hadlth proves that a child reaches puberty when he is fifteen years old. In another narration, . AbdullAh Ibn 'Umar explained the reason k hind !>ting forbidd~n from jOining lhe Baule ofUhud saying:

Mess~mser

". .. He (the Prophet) saw that I had no/ reached the age o/maturity (10 be able to fight).""
The fourth sign concern, the young gir!, for she is known to have nached puberty when she has her fi rst menstrual period, for the Prophet (PBUH) said:

"Allah does not accept the praye r oJ a woman who h<l$ reamed puberty u l1le~ me wears Q veil."
{Related by At_Ti rmidhi who deemed it a has<ln (good) ftadith}"

The second case is sound judgment along with reaching puberty. which means displaying competence in handling one', property, for Allah, Exalted be He, says:
tut the orphan, {in thei~ abilitiQj until thq re~h marriageable age. Then ifyou. perceive in them round j udg_ m ent, relet.." their property to them
~nd

(Qurln: An-NisA 6) ':

I TRADE TR~NS"CT10NS

Sound judgment is recognized b}' testing a person's abili ti es conc~rning financial dealings (handling proJl<'rt}'), To pr",'. a person's sound judgment. he is to be allowed 10 conclude business deal. repealedly. and if he is nol ""crssivel}, cheated. and he does not 'Jl<'nd his mon"}' on prohibited or usde., malters. he thus shows sound judgment. Interdicting an insane person of his legal capacity ends in two ca~; Ihe first is regaining sanity and Ihe second is being of sound judgment, as previously stipulated with ...gard to th minor. Interdicti on of the weak mi nded person ends when he com es to hi! Senses and hecom. s ... asonabl e in financial transactions. The guardianship of the financial affairs of any of soch th ru kinds o( person> (the ch ild , the insane person and the weakminded person) is carried out during their interdiction by 5 uch a persons father ifhe is just and o( sound judgmen t. This is because a (ather is the nrarest one to show mercy towards his charge. After lhe father com~s the One stated in the father. will as the guardian. for this guardian will be taking th. father's place, acting as if he is the father', "'presentative during his lifelime. The guardian ought to deal with his ward's property in the ward's best finan,;al inlereSl, Allah, &alted be He, says:

"And do not <lpprooch the orphan~ properly pI in " mly Ih"l is wst /I., intending impr" ...mentl ...~
(Qur'An: AI-An ' Am: 152) This means that the guardian must not manage or administer the property orthe orphan except in a way that benefits the orphan and makes his property leg. lly inc .......,. Though this nobl ~ verse refers only to the property of the orphan, it ...fers. by an.logical deduction, to the property of both the weak minded and the insane, Moreo"er. th e guardian as wdl, must prese en and look after the property of the o rphan or the like and never expose it to risk or devour it unjustly, for All ah, Exalted he He, says:

"Indud, ,k""t wh" dev",.. 'ht properly of "rphans unjustly",re only ,,,mumlng int" 'htir btlliu fire, And they will bt burned in " Bluzt [i,t, Htllfirt},H (Quran: An- Nis~': ID)
Allah, Exalted be He, advised the guardians about orphan, to consider th e fact that thei r own children could be under the guardiansh ip of oth.r people at any time in the fulu ..,; thus, since they like that their children be treated kindly (when they are wards), they must treat o ther peopl e's children in the s.arne manner. In this ~ard, Allah , Exalted he He, s.ays:

Chapt<, 17 : lnt<rdl",ioo

Itt those (executor. and guardian.) fe .. r [injnstict} as if they {therm"l"e.} hod left weak ojJ.pring behind and fearedfor them. 50 let themf"ar Allah and speak words of appropriate ju.tic".~ (Qur'an: An Nisi': 9)
Since the wards arc: unabl~ either to pr~serve their property or to conclude business deals in a way that would increase property, Allah has appointed guardians over them to take care of their financial transactions on their hehalf and to act to their hest fin ancial advantage. Allah has given those guardians commands to abide by: He has forbidde n the guardians to give the minors their (the minors') property lest they should waste or spoil it. On the other hand, Allah, Exah~d he He, S3l"': ~And,u, not gi .... the wtakm;flded your pro/Hrty, whkh Allah ha. made a me..... ofsus/manu fur you ... (Qur'1n: AnNisil': 5) A1H1fi, lbn Kathlr (may Allah have mercy on him) said:

'~nd

'III/ah, Glorifiul al1d Exalted be He, forb id. rha t the weakminded be gi" ... the right of d;spo:<ing of the prople' proptrty, which Allah has made a means of /ivelihood and sustenance for f>/'ople, through lronsactions and other ways of invatmeflt. Hence, interdicting the weak minded of their legal capacity has been introduced: "
Just as Allah, Exalted he He, h... forbidden allowing the minors 10 handle their own property and has ordained that upright and sagacious gu ardians take carc: of it instead, He warns those guardians against dealing with that property except in a way that legally improves it and makes it grow. Allah, Exalted he He. says:

""'t

~And do not approach IlItorphulI'. property except in U

w"y that i. {i.t. in/ending improvement] until he rtfuhts mu/urity.. ~ (Qur'an: AIAn ' am: 152)

In this verse, Allah, Exalted be He, orden Muslims to dui with th~ orphan', property in his best interc:st. . Abdull~h Ibn ' Abb~s (may Allah he pleased with him) narrated:

When Allah, Exalted be He, re~ealed Ihe verse, 'A nd do not approach tht orphun's property exupt in " way thllt I. ""'t {i.t. Intending improvement} : (Qur'an: A/ A n' 1m: 152) and Ihe ~trse, 'lttdud, tho K who dewur Ihe property of orphans unjustly

'00
ar~

I TRADFTRANSACfIONS

"n/y consuming illlo their bl"lIIu fire . : (Qurln: An-Nis.i', IO). eY~ry one (of the CompanioMs) who had an orphan with him (u"der hi. guardianship) hastened to sepamu his food and drink

from the orphan.~, Therwpoll, the orphans food used 10 be kept until it was ealen (by the orphan) or gol spoiled. This was difficult for them so they mentioned this to the Messengero! Allah (PBUH).
Thus, Allah, Exalted ~ Ht, revealed the verse, : . And thtylUkJtnl .wollt orphall'. 54", 'lmp:rovt!ment for thtm is bat. And ifyou mix. your tljJal" with theirs - they are your brot"el'$ .. ~ (Qur'An: AlBaqarah: 220) Thertupon, they(Jhe Companions) mixedthei,food with the orpham;'food and thdr drink with th t orphans' drink."

In addition, among th e deeds through which one could deal kindly and fairly in the orphan's prop"rty i. employing it in trade to gain profits and make it incll'ase. Thus, the guardi~n is entitled to trade in the orphan's property Or give it to another P""on sharing the profit and the 10", for' A:ishah (may Allah be pleased with her) used the money ofMuhammad Ibn AbO. Bakr (may Allah be pleased with him) in trade on his behalf", Besides, 'Umar IbnulKhanab (may Allah be pleased with him) said:

Trade in the property of orphans; otherwise, it wil/ />e consum ed by means of (paying from it for) Zakllh.""
In addition, the guardian is entitled to spend (reasonably) from the orphan's property to cover the latter's upense . In this regard, Shaykhul-Isl!m Ibn Taymiyah (may Allah have mercy On him) said:

desirable 10 honor the orphan, mou him glad and prolW him from />eing hum.-liated; sinCl! protecting and looking after him is for his />est />enifits,~"
"It is

The guardian of the orphan is also entitled to buy the sacrificial animal on the Feast of Sacrifice ( 'ldu/-Adb.<l) from the orphan'. prop"rtr if he i. wealthy, sinco this i. a day of happin ... and joy, The guardian is entitled as well to spend on the education of the orphan from the latter'. prop"rty, since this benefits the orphan. In case the guardian is poor, he i. entitled 10 lake from the orphans property as a fee for managing and administering il, for Allah, Exalted be He, says:

and who ...... is poo, - Id him tuke accordIng UJ what Is "mlptable.." (Qur'An; An-NiilA'; 6)

ctupo..

17: In'mlittion

'"

Thlt ~ means that when tM guardian needs monr)', he is permitted 10 take from the o rphan's p'"'rty according to what is acceptable. In Ihis rollCem, Imlm Ibn K..thir said:

"This ~ W<1,\" rtWahd wllc""ing Ihe g""n/,'"n of ,'''' orphmt, who mailltalll' "rUJ m"nages the "'tltr~ pmperry alld I"hs Ihereof In case he neMs. As for Ihe wne, '",Alld whotwr. {what ,l(tlllg'" flUUdl~IIJ, Is stlf-suffinntl should "'Ir";n [from taking a f~J; .",d ..hflever Is poor - Id hi", Ulke Ilc;rording to ..h", /s ~cctpttlble.. : (Qur'!n: An -Niu': 6), ' A'ishah SIIld, 'ft was rtvt"led rfK"rd;nK the ' list of tht orphan'! guardiall; ht;s permitrtd to taufrom tht orphans proptrty a fet tqu;vlI/t ntla mlln"gillg and protecting hiJ (tht orpha,,~) propnty.' "
filqlh $ mai ntain that the guardian ~r the orphan may take the least of either his due ftt (fur managing the orphan's p~) or the sum that meeb hi, nd$.. ll It narrated that a man eame to tbe Prophet (PBUH) and said:

/ hal't "" orplum who hll!" proptrty bUI I hal't nOlhing. MAy 1 Sptrld from his properry~" The Prophel (PBUH) replil, 'Ust Iht property of your orphan ..ilhoul spending it IlIv;shly."

Thus, it is impennissibie for the guardian to sptnd from th e orphan>s properly mo re than th e limit Allah has made allowable. Ailah warns those using the orphan's properly lavishly with the sevuel l th reat revealing:
..... A"d do "01 CII".ume il uc_iwly a"d qltltkly. (antlc/Pllli"g) that tht)' will grow up ... (Qur'h: An-Nisi: 6)
Allah, Euht<! b<: He, also say.:

..... And do "'" co,....",e Iheir ~liQ ;,,10 ym<r <>WII. Indud, that Is tWUVWU sin," (Qur'ln: An-Ni~-: 2)

In thisvt~, AUah means that it in grut sin toconSUIm tile orphans' po operties into 1hoseof tlleir guardians, thus Muslims must be keen on abiding by Allah', arder and lOiding that greatlin. Furthermort. Allah, Exalted boe He. says: "-Indd, Ih,," wh" de"",,, lhe p"'pnt)' of orp"a,., u"joul'), "re ..."Iy ")II.um;"$ j"IO t"eir I>tlll~. fire. A nd III~y will be burMd I" 11 Blau {I,e. Hellfire]." (Qu rln: An-Niu', l O)
Iml m Ibn Kathir interprets thiJ verse sayi ng: "11 mtclnl wht1l Ihe goulTdjam NI lip (!.t. lab ,,"/.lw/ulfy) rh. orphan!" ~rtin wilh",,/ an =eputbk ......,.. (i.e. unjullly), if ;1 fin. in /ad, wItid! r~ 11", ... ring "I' in rltm btlJia. and ..,;n tM Day of R...",utiDn.--

w.w ""

'"

I TRADE TRANSACflONS

It is rdated in the Two SabilIs" on the authority of Abil Hurayrah:

"The Prophet (PBUH) said, tlYDid the uwngreat destructive 5;n.: The people asked, '0 Messenger of Allah! What are they?' He said. 'To associate others in worship along with Allah. to prncUce wrctry. to kill/h e IOul which Allak has forbidden (10 be killed) except by (legal) right, to elll up riM," 10 eM up an orphans wealrh, 10 flee from the battlefield at the rime of fighting, and to accuse chaste women, who a~ good l>elievm and never even think of anything

touching chastily.' "

Besidr$, Allah, Exaltrd bt He, commands that the orphans' proper!i.. bt roturned to them in full when th~ a,.., oompettnt; become mentally and physically mature to dispose of them. Allah, Exalted bt He, says:
And gIve 10 the orphanJ Iheir properti..
M

(Qur'An: AnNis;\': 2)

He also says:
"... ""til thq rEach marriagea"le age. Then if you Jlffceivt in them ''''''Id judgment, rEle".e their proJlffty t" them ... ~ (Qur'm: AnNisa: 6)

Morrover, Allah, Elfahed be He, says:

". Then whm you ft/ease thtlr pro~rty to them, bringwitllU<e' "P"" them. And '''!fie/ent i. Allah ". Atco..nt"nt.~
(Qur'An:
AnNis~':

6)

The verse indicates that Sufficient is A1[ah a. Accountant, Witness and Observer OVtr the guardians when conducting the affairs of the orphans and when returning them their pro!,<"rties. whether in full or incomplete,

Endnotes
I Ad -~ulnj ("SOS) [''It''B[ and AH:l1kim (2403) [2175 1_ 2 AI-Bukhltl (2287) [415851 and Mwlim (3978) (51471). 1 Su: M~j"'" 'u{li>t~l<'<I (2/5 t2, 513). 4 Ahmad (J9J5S) (4/3891, AM Dlwful (3628) [4nll, An - Nul' (4703) (4/3631 and Tbn
~

M1jah (2427) [3115 1). Ahmw (2(1(;7) Illm j, irnl Jbn

M~j ilh

(mO) 1JlIOOIII1d (2341).

Clup"" 17: In,ffiiicrKm

'"'

6 Ad-DlriqUlnl (4505) [4/148J and (1403) ]2175]. 7 "r Idm AI-Muwaqqi 'in" (418-9 ]. 8 Al-BukMrl (2402) (Sf79] and M",lim (3%3) [51465] 9 Ab" D!wiid (3520) ]315GS ]. 10 th. footnote in Ar- Rowtl AI_Mur/1i' [5/183]. 11 Al-Bul:h1rl (261)1) [5/HOJ and Mu,lim (481 4) [7115]. 12 Ad_Dhaquln! (4156) [41601] _ 11 Ahmad (25710), AM Dlwi1d (6041) [1/1981, A, Tirm idhl (377) [l/l15 ] ond Ibo Mljah

s..:

s..

(655) [1/:1621.

14 See: "Toft/' Ibn KOlhl, (11428). 15' Abdur_Rawq (6983) 13166].

16 Ad-Dtroqull1l (1954) [2195]. AI-Bi yhaql (7340) ]41i 79J and' Abdur-Rau1q (6990) [4/68 ]_ . Iso At_ Tirm>dh! ((j.4()) 1m2] and AI-&yh. qI (7339) [411791_ 17 th. footn<>1. in Ar~Rowtl AIMur/1i 15/1941_ 18 "Tojsl' Ibn Kalh/, ]11428]. 19 Ahmad (6747) 1211861. Abii Dtwud (2872) [3/197]. An-Nun (3670) [3/567] and Ibn Mljah (2718) [J/J!J]_ 20 See: "Tofslrllm Kalhl, [11595J. 21 The Two &lllllls: The "1'.... 0 Authentic Books of AI -Bukh!rl and Mu.lim . 22 Ribd: A I<rm that indud ... u,ury and "'uriou, gain and int"..!.

s.. s..:

s..

CHAPTER

Conciliation
Conciliation is an agrnment on the baois of which 5ettlemenl is reached beiWffn two displlling pIIn in. In fact. concil iation is of the grnlest useful ront..clS. The",fo~, it is advisable to lie a littie, if necessary, when making senlemm t betwttn two p.lrties in . di.,.~nt

Concil iation is kgalilted accordi ng 10 the Qur'lln, the SlIlIMh (Prophdic Tradition ) and COn ~ n Sul. Tbe~ arc nume rous vcrse" which provrConc il ialion: Allah, Exalted k He, ~ay$.
~.. /JmI uttlemmt

/, I1ut ...~

(Qur'An: An -Nis;l': 128)

He al. o says:

bdkwrJlnould ftpl, Ihen ..... ok u ttlmllml bd_ tlfe , ..... &.t if onc of 'hem oppreun IM othe,., lire .. fig'" agai"st IlK 0..., that opprGla 1/,,111 it .... ' ..nu: IQ the omi"'..." of .411.. ,.. Alld if it ...,'"mJ, Ihen "".Jet uttlnn ..", betwunlkem injl/llla: ....d act j".rly. I ndud, Allah 14_ 'hoft ",ho adjust/y.w (Q urln: Al-HujurAt: 9 )
~ltnd if,....., f<ldi o... "",<Ntg the

'" Moreover. Allah, Exahed be He,

[ TRADE T RANSACfIQNS
~ys:

-Nu good 1. therf in much of their prlwm co...... ,.,atlon, exctpt for ,hOIfI who ..njoln chorily or thAt which JJ right or conciliation bdwun people. And who,."",does trn.t su king m <'" nS ojt"" tlppro ..al of Allah - th .... We " u gaing to giw him ag",D' r-e_I'Il," (Qu r'An: An-Nist', 114)

He also says:
..SOp, All.." IInd amaul 'h,,' wltlch iJ MI_ 1"" ...

(Qur'ln: A1-AnfM: 1)
Besides, the Prophet (PBUH) said in a b.odilh regarded IS tabib. (authentic) by AI -TirmidH
"Conciliatio n is permi"'b'.. among M uslims except the co nciliation that makes what is low/Ill prohibited or mohs wIult is prohibited lawfuL"'
In addition. the Prophel (PBUH) used to make $eltlemml ~ ~J ..
who ~re in disagr~me nt '.

The penniMible conciliation here is the one which is justly arnnged, as

ordai ned by Allah and His M es~ nS .. r (PBUH). and in which o n. Sl'ck$ Allah'$

pleasure and then thar of those in dispute. The one who undertakes conciliation betwun people ought to be wdl . informed oflhe circu mstances of tile disagreement, aware of what he ought to do in Ihal regard and inlendingjuslke when a rranging a scttIemenl. In fie!, Ihe degree of the Muslim woo makes peace among Muslims is belter et, than that of the Muslim who fa~ts and performs p fll)'Cr continuously. Y if P'".,emaking isdone without justice, it wiU turn into oppression and doing w!"(lng to the right of the oppressed party; !uch as making peace between powerful unjust person and a weak he1pl eu w!"(Inged one in a way that pleases the powerful one enabling him to violate and deny the right of the
~ak one.

Besides. pcacemlli ngls arnnged OI1ly with rcganI to tM righlli of palple, O when th.. wronged ont could gi"" it up or be C /1lptnPted for iL H""""""ff,
as for the rights of Al lah, Exalted be He, such u the prescribed punishments .nd the LWlh, there Is no way whatsoever 10 han<J.Ie it wilh , orw:iliation, for ronciliation wilh Albh In thne asn Oln be reached by pc:rfonning these very acts of worship (i.e. presc ribed punishmenU and Zakdh etc.)

Chop'''' t8: Coneiti..;"'n

'"
~twffn

Concil.i ation is of Five Types

The Ftnt Type: Conciliation show I\o$tility to Muslim~
re~llious Mu~lims

MuslilIl5 and non MuslilIl5 who

The Second Type: Conciliation between the Muslim community and The Third Type: Conciliation of disKnsion
~tWf\

the husband and his wife for ftar two parties regarding a

The Fourth Type: Concilia tion other than financial affairs

~ t~n

mane.

The Fi fth Type: Condllation between two parties disputing over pr~rty. which will ~ demonstrated here. This type is divid ed Inlo two oth types: i C ondliatlon of acimowledgment: Which 11 of two kinds: The fi J1:t kind is to arrange conciliation between the two parties in order 10 ",rum the vcry rype of the objn:t of disa!Jftment.
~ iOnd kind

is 10 arran~ conciliation for rtnJ.rning a th ing othe. than

the objn:t of disagrttment. The first kind of eoncili.tion of acknowledgment is conciliation to ",turn the vcry tYJ"l' of the object of disagreement is in casa when one, for uample. acknowledges owing another ptl"$O)rl a deht Of" aeknowledges owing him a 5WJl of monqr, which is in ones po~ion. Both parties then agree to conciliate when the indebkd party pays part of the debt and the creditor, on his side, relinquishes the rest \herlf. Also, thil kind of conciliation may happen when the creditor cedes to the Ikbtor tn .mQllIlI of th( owed object and takes the rest Ihereof. Thillype of conciliation is Yll id unless the acknowledgment is stipulated. For example, the debtor may say that he acknowledges owing money to the creditor provided that the laller gives him s.o and so Or compen.ates him wilh 00 and JO, or the creditor moy releuc the dd>tor from th~ deht stipulating that the debtor gives him a certain thing. Arranging conciliation in this manner is invalid. for the credilor hllll Ihe right 10 ask for all his rights (all thal which the debtor o~ him). For rendering this type of conciliation valid, the debt or is oot 10 refuse to give the creditor what he Owes him in case there is no concUi~tion. for this wou ld be In act of consuming people's wealth

'"
be
OWeS

! TRADE TRANSACTIONS

unjustly, which i. forbidden by Allah. Also, the debtor is to pay what

unconditionally (whether IMre is conciliation Or not). In

addition. for validating this type. of conciliatio n, the crMilor must be of tho~ whose donation i.s valid; if not, this conciliation would be then

invalid. An example for this is the donation giv.n by a guardian of an orphan or an insane person, since the guardian would be donating somdhing that d oes not belong to him. In a few words, it is permissible to arrange conciliation betwttn two disputing parties to '"turn the establisht<! object of conciliation by part of the same type provided that the debtor doe. not ,..,[u"" to give
back his d . bt in case the,.., is no conciliation. Be$idcs, the creditor must be ofthosc whose donation is valid. It is pennissible as wdl to effect conciliation in ca.s~ th~ afo'"<'said requi'"<'m~nts are fulfilled, lince this would k a donation and one i, not to k p>"<'V~nIW from relinquishing part of what he lend, or from having it back in full. This is kcause Ihe Prophet (PBUH) ask",d th .. c,.,ditors of Jabir rbn 'Abdull~h to make sorn~ rWuction in his debts'.

The ""cond kind of condliation of acknowledgment is oonciliation to substitute an object of a difbent ~ for Ihe obje<:1 of disagreement. This hap~ns in Ca&CS when someone acknowlWges that he owes another ~",on a debt or an obj~ct. and both agree Ihat the credilor is 10 lake an obje<:1 as compens~lion fur a diff~"'nt on~. Thus. if conciliation is to k arrang~d 10 return money for money, then this will k considered an exchange whose rulings",.., to k appliw in this transaction. If oonciliation is 10 k arranged to give back an obj ect in return for mon~y, this will be considered selling whose rulings are to be applied in this trans~ction, Moreover, if conciliation is agreed upon for establishing a knellt, as in the case when tk creditor hires a place lxlonging to the debtor, it will be a kind of renting whose rulings af!' to be applied. If conciliat ion is arrangw to give back mon ey in return for the disputed object, it will be consid~,.,d ..,mng.

2- Conciliation of Denial
It refe" to a person claiming Ih .. t anoth er person owes him an object or a

upon lhat daim, the other person d<)r$ not deny the claim but is ignorant of lh. claimed obj,""l. Th. ""pondenllhen asks the claimer to relinquish hi' claim and to arrange conciliation in which the claimer will obtain a sum of money, wh~ther paid on ,h. spot or deferred. Conciliation in this case is valid according 10 th., majority ofth~ peopl~ of knowledge, for the Prophet (PBUH) said,

d~bt;

,~

"Conciliation is per-mwible Ilmong MU5limsvccepllhe concili <If;O" that makes what is lawful pro"ibit~d or makes what is prohibited lawful."
(Related by Aba D~wI'ld and At-Tirmldhl.and the laner said, "Thi. is a aaUl" (good), ~ahlb (authOllic) Iladlth.~ Al Hlkim regards thi,

b<ldith asl"b.ih)'
Urna. Ibnul-Khatllb strIl th is badilh (in a ktla) lIS a proof of tffming conciliation) 10 AbO MIWo. Thus. this /iadllh can be gfely applied as a proof in thl$ ~ because of the afOl'e$l.ld con&ideratiolU.

The benefit of thi s typf of (ondllation which the respondent gains is avoiding the legal proceeding5 IU1d taking an oalh befo~ the judge. A1J for the claImer, it spares him the trouble of C$tablishing evidence and helps him obtain what he claims ( 0 be his as soon as possible. In conciliation of droial, the claifTler is ~ded as $dlmg the claimed object , inc/! hr bdicva; Ih il! wfu,1 he taUs is comptnsalion (o r his money
(Ihe cl.imed objed). lhenby he ought 10 abitk by what he bdkYts. It is as lrt~ rupondent had bought the claimed object from the claimer, thus the Nlings on ~lling apply to thl, tl"lln$aCllon. Among the~ rulings ;s tM right to re!Urn the sold item for be ing faulty and the right of prttmption, if the right of prtemption can be applied there in . AI for the resp(mdent, he i.! considered, after effecting conciliation with the claimer, aequined from the claim. He has paid mon~y (ror the claimed objrct) to avoid taking an oath, rcmo~ hum tIt2I may afflict him, cnd the dispule, and Pn:)tect himself against being indulged in disputes. Besides. hononble ptOpk rqect being invulved in such matlers and would rather pay rnonq 10 aVQid web claims. If IhI: claimer (who bomcs a buyer in this case) finds a defect in ttu. object (gi~n to him in comp"nsation for Ihe dispu ted one), he d~s not have the right to return il, and it ca nnot be taken by preemption from the rtspon<icnt, as he d~s not co nsider it a real compensation for anything. Conciliation of denial becomes invalid in case either perty lin to the other. The claimer may l~ claiming his righlto an objecl which he knows well that il don nOl bdong 10 him. UkewiR, the RSpOndent may deny whate~r claim is advand by the claimer though he knows that he is lying and he own the <;l.imer sudt a thing. Ox>ci!iation Ihm becomes null for thl: on~ who lies concealing th~ truth, since he knows thl: truth, and is able to give the right to its Owner. and does not beJieW! that he is in the right. Thus. wh.te~r he takes

""

I TRADE TRANSACfIONS

or obtains in thi~ case by means of th~ conciliation is prohibited, for h~ takes it

unjustly and wrongfully and not in comp<:nsations for somethi ng he d eserves. Allah, Exalted be He, say, in this COncern:

"And do naf co,uume ,me ""oth er's wtllllh unjustly. ," (Qur'in: A1-Baqarab: 188) This coodlialion appears to be valid since ~opl. do not know the hidden truth, ~t, Allah, from Whom nothing is hidden in the earth nor in the heaven,

invillidales it. Therefoft, Mwliln$ must be keen {)o aYl,liding $u,h prohibited
actions and should ~p away from obtaining mon ey fraudulently.
On. of the rulings on conciliation of deni~1 is that conciliation is valid if a third party tahs the place of the denying party (the respondent) in th. conciliation

without his permission. This is k<:auS( the third party intend. to acquit the denying party in order to avoid any dispute with the daimu. It is as ifth~ third party had paid the debts of the denying party on hi~ behalf. Yd. lhe third party is not to ask the denying party to pay what he has granted, since he does not have Ihe right to do so; tbe Ihird party in this case is comidertd a donalor. Anolher ruling is that conciliation is valid when being arrange.! to end a disagreement over an unknown object whether both parties owe one anolher 0, one of them owes Ihe olher. l"al is, conciliation i, applicable ifil is difficult 10 know Ihis obje<:1 such as Ihe case, of unsenled account from a long time ago and neither of the parties knows what he ow"Slhe other. Once, two men dispule<! over their heritage which was along lime ago. The Prophet (PBUH) said to both of th em:

"Draw lots, seek th, truth, and then I,t ,,,,,,.)'On, ofyou absolve his companion (from any right on his side)." {Rdaled hy Abii J)~wiid and olher compile~ of HadUhl'
In Ihis case, since one of the two parti.. absolves the olher from his righl on his liability, conciliation becom~s valid. In spi1e of the fact 1ha1 the dispute is over an unknown obje<:t, il is valid he..., for o e<:e ... i1y, in order to avoid wasting money Or being burdened by righlS of others. The Prophetic order, in the above-mentioned b.adith of absolving one anolher from any liabililies, signifies that one should be co ncerned with be-ing absolved from p<eople's rights in order to free one'. liability. It also signifies how g...,a1 and inviolable the right.s of people a...,. Annth .. ruling on concilia1ion is that it is valid in Cll&eS of q4J~ (legal rttribUlion) through the payment of diyah ' i~ a ~ubstilute according (0 the

0..1""" 18: eonc:ilja,lon

'"

amounl of diyah Sf"led in the SIulri' ah (Islamic Law). or less or m.- d~ndml on the "'Irm~nl ofboth I'artia Sincr th~ objt of d;'l'ul~ is not Il'roptrty tIw can be compensated for, as it is " human soul, 10 Ihe~ canlU)( be rompenslllion bued 0fI human e$timalion in this~. Rather, the blood money is to be paid according to the SIulrl ',v,. It is not valid 10 conciliate something ~Iated to tht pRlII;ribrd puni,hments (punlshmenlS ensh rined in the Qur'1n and the Sunllal,), since Allah. Exalted be He, has prescribed these punishments for de terrence. Beside$, Ihese punishmenll are Ihe right of Allah, Exalted Jl.e He, Ind among Ih e rights of the (ommunity. The~by, conciliating something related to these punishments ~nd~" them inval id. denies the community of their beMfits and open. the way for those Intending corruption.

Endnotes
I

AIIIud (877'O) IV166I, AtTlfmidhi (llS6) U/6l<lj. Ibn MIjm IZJSl) (311121 and
Abol Dtw6d (l~I [4/ 161.

2 AI Bulchlrl (MI)[1Il1711OI1d Muslim (943)[213651 . J Al Bukhlrl (1127) [ ~Imj

4 AIImaJ (87701iV3MI, Atlirmidhl (1JS061IJ/6l<1j, Ibn MIJah (2351) (J11I21 and At..l OIwOd (1594) [4/)6 1. S Ad.DlraqUlnl (4425) [./132J and AI-B.yhIGl (20SJ71[IOI2521 , 6 AIImad (26596) [6IHO] an d AbU DlwCld (1514) 14/1lJ. 7 Di)'<lJt in A"bic me .... . comp<: ....'ion paY"""' for . rnul'<kr or an injury: iI mainty "'"... - blood I1>On.,.-, . nd iI an 000 rnn.n "indtmnily",

CHAPTER

Neighborhood and Roadways

FIU/.lts' have dealt with the issue of neighoorhood and roadways and I~ rulings rdattd rnertQfb.mlll$c o( th~ grat importance Ihis iS$ue has. Proble~ may arUe bet,,"Cnl Mighbors and ought 10 be im.mdiately solved lest thry

should cause dispute and hostility.

n~lghoors

MlUlinu; oogh! tQ tQjvc l h~ probkm:; by amnging conciliation bfiWffll who a~ in disagl'ffmen l in a w~r that achieves justice and ~ndlt.lf

someone makes conciliation, fornam ple. toallow waler to pass 10 him through the land of the ntighooT Or ~t hi s housetop (by mt.nsofa water pi~, fOruample).
jn nfu rn (or compen ...Uon, this conciliation i< v.l id since 11 ]s necSary. If th il compensaHOI\ is 10 be paid In relnt" for a ben.efil or for making use of lhe land or the hoUJdop whik they still belong 10 lheir "'"""t, Ihis 1$ considnftl rntting. If

one wUhI$ 10 p<JS5QS the part or hi' ncisbbo{s !too:;ctop or land through .."'ich walllT puon. tMn this i. ronsi<U~ sd1ins. If a neighb I. in lIeN of a p"""'ge through a prop<:ny of tM ncighbor in .rmm fo r a oXI I11!'(nJl.tion or through conciliation, this wiU be pcnn!s.o!bJe $ince il ~ nec~ry,

,"

I TRADE TRANSAGnONS

The owner of the land or the houselOp should not take advantage of hi~ neighbor's n.,.,d, by asking for a high compensation or refusing to lel him make use of that passageway; thus, the owner CauseS hardshi p 10 his neighbor and prevents him from fulfilling his needs. Moreover, if a branch of one's tree (in his land or his house) extends 10 reach the land orthe house ofthe person next to him, it becomes obligatory on the owner to remove it, either by cutting or bending it toward another d; re.:tion \0 pull il away from th e land or house of the neighbor. If the owner of the branch refuses to do one of the aforesaid actions, the landowner Or the house owner is entitled 10 remove the harm caused by that branch with one of these actions, si nce this branch is thus a violation which is to be removed by an action that causes the least damage. If both agree by means of conciliation to leave the branch in it, plac .... this will be permissible, whether in return for a compensation, according to th~ soundest view of scholars in this regard, or on the basis of sharing the fruit of the branch. The same ruling on a branch applies to the Case when a wooden column e~tends and reaches the land or house of one's neighbor. It is impermissible to have in one's property that which may cause harm to one's neighbor($), $uch as having a bathroom, a kitch ...n, a bakery or a cafe whose harms may extend to reach one', neighbor(s) Or haviog a factory whose noise and working of machinery could disturb one's n... ighbor(s). Even having a wind ow overlooking the house o f one's neighbor may cause harm to him. Moreover, if there is a joint wall between two persons, it is prohibited 10 open a window through it without the neighbor>~ permission. Furthermore, il is impermissible to put or fix wooden pegs in the joint wall or in that of the neighbor, except when oecessary, and when the wall could bear those wooden pegs and th ... roof cannot stand without t hem. This is according to a mar/u' (traceable) badilh narrated by AM Hurayrah, in whkh th e prophet (PBUH) ~YS'

"No on.! should prevelll his lIeighbor from flXillg a wooden peg in his wall: AM Hurayrah Ihen 5<>id (10 hi. Companion.), 'Why dQ 1find you averse 10 it? By Allah, 1 (erMillly willllarrate il to you:
(Rdated by AI - BukhArt and Muslim) ' This badilh proves that it is impermissibl~ to pl'tVent on e. neighbor from fixing wooden P"Si in on~'i wall. If One ref~s, those in authority arc to force him to a"~pt, since il is a permanent right Qf Qnc's neighbor.

Otopttr 19; N<ighborh<:><:HJ

'" What is mentioned above a,.., some otthe rolings on neighborhood. As for
.It is impermiss ible to annoy prople on the roadways; one should rather d ear a passage for prople and remove harmful things from the road. since these deeds are parts of fa ith as the Prophet (PBUH) st ated in
hi~hadlths.

."cl Roadw')'J

the rulings with respect to road ways. they are as follows:

[t is impermissible

as well for a person to bui ld in his land what may cause trouble 10 the passage of vehides. prople or animals. such as building a roof (to be shaded by in the mad) which pre\'ents the passage of people riding vehicles or an imals. or what they carry.

It is impermissible also to spe.:ify a parking place on the road (or the street) for one's riding animal or one'. vehicle as long as this may make the road narrow or result in ac~idents.

Shaykhul-lslSm lbn Taymiyah (may Allah have mercy on him) said,

"It is imp~rmiS5jb~ to ha"" any thing protruding from oneS building inw the road. lr is .""nforbidden to plusterunes wall (that is n~xt to rhe

.trut or the road) except when leaving a spau (equal to the thicKn"", of plustniMg) to the inside of one:' house and plostering rh. wall as wide as OMe has left of space .. ' One is also prohibited to do certain things o n the road (or on the stred). such as planting. building. digging. putting firewood. slaughtering. throwing garbage and ashes or the like. which may Cause harm to the passers-by. Municipality official s are to prevent such actions and inflict a deterring punishment upon whoever acts contl1lrily, for many prople do not tah this matter seriously. Some of them occupy the roads to serve their own interests; they use the road for parking their vehicles, puning their construction materials such as bricks. iron or cement, digging the roads, and doing many other violating aclions. Others Ihrow harmful things. such as food wastes, rubbish and impure objects in marketplaces without any Concern for harming other Muslims. All of these actions 3re prohibited by Allah and His Me""nger (PBUH); Allah. Exalted ~ He. says:
~And

those who h/lrm believi..g merr /lnd belitving WOme .. for

{.o mething] other th .." wh"t they have ~ar"ed {i.~. dun-ved{ Iulw cerf.. irrly ha", Upoll Ihtmsd ves " sl..rn1tr "lid mllllife. 1nll.H

(Qur'An; AI - A~'t>: SS)

".
Th. Prophet (PBUH) also said:

J TRADE TRANSAC"T[ONS

iI. Muslim is he from whose h"nd and tongue Muslims m? sa/e,)

Moreover, he (PBUH) said:

"Faith has over sixty branches, Ihe mml excellent of which is ded'1.1ing that there is no deity but Allah, and the lowest of which is removing
harmful/kingsfmm the way; and modesty is a branch offaith ," '

There are numerous b.adfths in which the Proph~ (PBUH) urges Muslims to m;~ct mch other's righU and to keep away from "-wing any harm to one another. In fact, one of the things that harm Muslims mw! is causing th em trouble. on th. ir way and putting obstacles therein.

Endnotes
I """rh: A ochoI.. of Islamic )ur;'prudrncc, 2 AIllukhlrt (2463) [5JI36] l nd Mu.lim (~I06) [6148] . 3 Al-Bukhlrt (10) [I17~1 . 00 Muslim (161) [11221 _ 4 AIBuIoMrl (9) [1nl] md Mu~im (152 ) [111 951.

CHAPTER

Preemption
P~mplion i$ aUIMnlically slated in the SunllM (Prophetic Tradition) and Allah. Enheel be He, has ordained il for blotking evil mnns rdated to

parlMTshlp.

The ~lI

lm'm

Ibnnl.Qayyim (may Allah ha~ IMrcy on him) said:

"f'rttmptilm is OM of the merits of SIuut'a/r (lwmic /.#"') which pT't:MJ ilS j ustiu and ability to fulfiU p>pk"J jnltU1U and nuds. 'J1a.. wisdom M~iM kgWatingprumplion is 'he I1taSSity to prewnlllny IuIrm cauud la J>Np/t <ufo, as poniblt. Since pamtnship. in moSI cases. rnults in hIITm (di$puuJ. such harm "'" M ry:mowd rither by diYidlng tht property or by pl'(:lmpl;"'" Whtn Q J'Qrmtr w;shts 10 Jell his shart taking rtea"'pe"" (it. dut prlet ), tilt othtr co-owner i$ leplly mort. rn/itled to buy it/hall any o,her slra,,~ party. ThUtjOrf:, Iht b..yrr prt~tntJ tht harm cauud / 0 himfrom par/ntrfhip; and the stlltr IJ paid his dut right of IN. pr;c, "md /zt ll" he Is 'lO1 harmed. Prttmptitm 1I~ pro/mslllt bu~agai,"llht hOffll tlluud by Jlulring

H'

! TRADETRAN:iAcnONS

the property with a 5lrang~ parly. Thus, prumption is chamcterized with great justict and is Ont ofth e best rulings which are in conformity
with round mind., natural dispositions and interest. a/prople."' Thus, it be<:omes d~ar that trying byfrauduknt m~ans to invalidat~ the right

to pr..,mptcontradicts the purpose for which preemption has been legislated.

At the P",l,lamic Period of IguoTan"" (AIJllhiliyyah), the right of

pr mption had been common. So, if one wanted to sell one's house or garden, the neighbor or the co-owner would demand the right ofpru mption to buy the sold share, for such j>C'ople more entitled to buy it. Aocording to the faqihs, prumption means that the partner is more
entitled to tah his counterpart', share sold to another person (a thied party)

for recompense which is the same price agrd upon by the third party and the other partner. Thus, the buyer has to sell the sh= he bought to the p..,emptor against the price upon which both (the buyer and the seller) agreed. This is according to what Imam Abmad and AIBukMri ..,lated on the authority of Jabir (may Allah ~ pleased with him) that:

The Prophet (PBUH) decided th e validity of prumption in every joint ~ndivided property, but if the ooundarie5 are well marked and the ways and streets a~ fixed, then there i, no preemption"'
This alxove-mentioned badith proves that the co-owner has the right to preempt, and that preemption is only applicable and valid in land and real estates (immovable properties) but not in movable pcsses.sions, furnitu.." animals and the like. The Prophet (PBUH) also said: ... It is not lawful for him (the partner) to reil that "ntillhe olher partner gives h is consen!."' This hadith proves that it is impermissible for the partner to seU his share (to a person other than his counterpart) unless he informs his counterpart about that sale. In this ..,gard, Il... ul-Qayyim said:
"It is impermissiblefor the partner IQ sdi his mare without informing the other pMiner. If he does, the other partner is more entilW to b"y that share. If the partner has asbd the permission of the olh., parlner beforo .elling ~ co-owned propertyand the latter expresses no intention to b"y it, then he does not have the right to preempt it aftu the salt. This is the wnd"s;"" ru/ing which the SluIri 'ah (Islamic Law) has stated and the", a ~ no other contradictory vie..., in this regard.'"

Chapttr 2G: Prttmrtion

'"

IbnuI-Qayyim mainlains Ihat the partn er has no right to p=mpl a .old prol"'rty "'long a. he h", been asked l"'rmission before the sale and showed no intention for buying. In fact, this view is only one of two views of scholars on preemption. However, the majority of scholars are of the view that the partner still has Ihe righl 10 preempl, and hi. being aske;;! permission doe. nol nullify his righllO preempt Allah, Exalted be He, knows best. Pteemption is a legal right that mu.t be observed, and il is impermissible to try deceitfully to make Ih " other partner lose il, for preemption has been ordained to save the partner from any hann. Thu if someone uses deceitful ways and plays Iricks 10 deprive his partner from this right. he will harm .uch a partner and violate his legal right. Imim Ahmad (may Allah have me rcy on him) in this concern says:

"/r is impermissible to uSt- deceiiful....,ys in order to nullify the right ofpreemption or any other right due to a Muslim. This is ~UlU5e the Prophet (PBUH) ",id, 'Do notcommil what Ihe fe .....' had committed in order to make lawful what Allah has prohibited. through the lowe.t trj,~: .'
One of Ihe tricks that t h e partner may do to nullify the right of preemplion is to pretend to have given his .hare to a third party as a gift. while he ha. sold it for a price. Also, the partner may ask for a high price from the other partner to make him unab le to pay and thus prevents h im from preempling. ShaykhuI-lslim Ibn Taymiyah said:

"Dectiiful actiom and tricks played by th e partner 10 dmy the preemplor his right to prumpt. invalidate the contract of .ale (with the buyer), besides. whatever words are written do not change the fach of the rontmW.~'
P",emption, in fact. is valid in joint land if undivided. and what~v~r tre .. and buildings the", a'" part of the land. MorffiVer, if the land has been divided and there are still some joint utilities, such as a joint walkway or a joint source of watu or the like, th~ pre<:mptor .till has Ihe right to prttmpl according to the soundest view of scholars in this regard. It is also according to the general meaning oflh~ hadith in which the Prophet (PBUH) . aY":

... if the boundaries are well marked and the ways and street. are ju:rd, then then! i5 n 0 prumption."

""

I TRADE TRANSACTIONS

T his aruiil" signifi es that pr mption i. valid and applicable in d ivisibl e things who"" boundaries are established and whore roads have not b<.cn designated. In this concern, Ibnul-Qayyim say"

"This is the soundest vitw as far as the prumpHon of neighborhood is concerned. It jj <llse the view maintained by th. Propl. of BaSrQ and Shaykhul-lsMm Ibn TaymiY"'" and is ant of th e two yi.,... reported uOOmlhe school of Imdm Ahmad:
Furthermore, Sheikh Taqiyyud -Din said,

"Pret mptian of neighborhood is valid in case of Jhoring One of the rights of ownership; such IU sharing in a utility of a relll tstart, a joint wat,.".,..)' or /I walkway or the like. Th;. i, the view maintained by
ImdmAhmad:
Th e same view is also maintained by Ibn . Aqll, Abo. Muhammad and others. In addition, AJ-HAriml said:

"Prumption of neighborhood is ""lid when bringing about a benefit and prt~~nting a harm, and th~e are nummJus hadiths sup1X'rting Ihi~ yiew, Thjj jj bf:l;aus~ nlighborhood d()(s nOI nWllilafe prumption except when neighb,,,, .ha... the walkway or th~ lib. Be.ide., p...emption h~. been ordained for prrvemlng hann, which (lCeu,." In most cmes of co -ownership, or .haring the same ulility such as a walkway, a waterway or the like."
Pr~emption iI; valid when someone claims it immediatd y after having heen informed that his pann er (or his ne ighbor) has sold his share (of a real estatd to anothe r party. If the other partner (pr~mptor) doc! not demand the right of pr...,mption, h e will then Ime it. However, if th e preemptor do es not know about the sale, he .till has the right to preempt, even ifhe remairu uninformed about it for years. In this concern, Ibn Hubayrah .ays:

"... Mwlim sc;hol~rs "niformly "g"'. thm whtn the p....mptor is absent

(and thus uninformed about the sale;, he is .till entitk:d 10 demand his right ofprtemption /0 buy the sold share m soon as he rerum ."
If there ace ."""ral part ne,.", then they art entitled to precmpt according to the shares each POSleS&eli of the wbole property, since they enjoy their right of precmption by virtue of thei r ownership. If a partner gi,," up his right to precmpt, the other panner is entitled to buy the rest of the property or relinquish it all, since taki ng only part ofthe property will hann the buyer, and harm is not to he removed by causing harm.

'"
Endnotes
I St.: "/'lot.. A.IM""""I' 'I"' [2/119). 2 Aj .J!ukhlrl (22 14) 141515 ] 100 Muslim (41 001) [11146] . J Muslim l41{l3) (6I.6J. 4 S: "' '1<1", AI-M~"""Hi """ 1211212071 5 Rd.a,rd bJo lbn IlonolL
6

S: ./ ''''", Al -M~"""Ni 'IN" (31299).

''''''i'''~ MIF"'~""'

7 See:

(XlfZU).

CHAPTER

Kinds of Partnership

S<lme light should be thrown on th~ issue of partnership and its rulings. as partnership is obviously widespread nowadays. People s!ill practice dealing

and trading with each other. and this is considered a me~ns of coo~ration. with the purpose of attaining common interests through d~Joping and
investing wu lth and exchanging eI~riences ,

Partnership in trade and the like is deemed ptrmiSliible according to the Book (the Qur'ln) and the Sunnah (Prophetic Tradition) , Allah, Exalted be
He, say"
K,

Alld Indttd, numy <luodatts oPP"'" < ~ another.. , ...

(Qur1n: Sld: 24)

Here, the word "associates' refers to partnen. The noble verse proves the p<"rmiO$ibility of p artnership and the prohibition of opprnsing one another
II

parlous,

lLPARTNERSH1P

The proof of the permissibility of partnership is also swed in the SUMMah, as the Prophet (PBUH) said:

"Allah, E:w.lted be He, says, 'f am the third afthe two partMers (i.e. Allah is with them, taldngcare oj. kuping. supporting, and sending dowM bfeSjing upon their IT/lde) as long as one of them does not cheM the other. BUI wheN he cheals him, 1 depart from them (i.e. to lake blessing away from their IT/lde):"
The hadith involves the legality of partnership and exhorts people to maintain it provided they do not cheat one another. This is because partnership involves cooperation and assistance, and the Prophet (PBUH) said:

"Alklh QSj;"ts Ihe person so long as he assists his (Muslim) brother."'

The person has to choose the one whoS/: wealth is lawfully obtained in order to set up a partnership with him . In addition, he is to keep away from the people whose wealth is completely Or partially mgotten. It is permissible for a Muslim to go into partnership with a disbeliever, provided that the disbeliever is not to be given full authority to run the business alone. That is, partnership is to be under the supervision of the Muslim partner so as not to let that disbeliever deal in riM' or any kind of prohibited matters, so making uS/: of his Muslim partner's absence of supervision. Partnen;hip is divided into two sections: Partnership in properties and p ... tnership in contra(ts. As for the first, it implies sharing the ownership of a :real estate, factory, automobil"'5, etc. However, the second section of partn ~rship involves sharing in running the busin ess, such as sharing in selling, purchasing, renting, etc. It can be by sharing in both capital and work. or sharing in work without capital.

Partnership in Contracts Consists of Five Types

1- 'ln4n (Cooperative) Partnership: It invul""s equal sharing in both

capital and work.

2 _ MudMllbah

Partnerohip: It ref~ .. to partn~rship in which one of the two parties is a sil~nt partne r, who only provides capital, while the other runs the business.
(SpKUlat;v~)

3_ Reputable Partner Partnership: It refers to partnership in trade based On the reputation, not the capital, of the partners.

Chap'" 1, Kind. of PUUlcm.ip

4 Manual Partnership: 11 rerers to partnership in which the two partners share whatever they earn by their own work, not by their wealth .

.s. Cnmprehensive

Partnenltip: [t includes all the aforesaid types of partnership; cooperative, reputable partner, manual, and speculative partnersh ips. In this kind of partnership, each partner authori= the other to freely handl e every aspect of the capital and Jabor.

This is just a summary of the types of partnership. and We shall deal with each in detail ~low.

Endnotes
1 Ab~ Nwlld (3383)
[)/~ )81.

2 MouJim (6793) [9/231 . ] J!i!>d, A term !hot includes u,u'y and u.u,i"... gain ond in!",O"S!.

~u

.....

CHAPTER

,l

,'rt; ~:;
>

,
'

.,

'(I

"

'.

"

'Inan (Cooperative) Partnership

It ",fers to th~ ~qoival~ nce ~tw~en the two partners, in both capital and labor; they equally participate in th e business. 'I'he r~a l ",uning of such a type of pa rtnership is that two Or mOre partn~rs provide equal capital for the bus;""u w th at the total capital is regarded as one unit. Th~y may wwk
togeth~r to in",st it or, p" ,hap$, on e of them runs thc bus iness and so lal<~$ mon' profit than the Olh " r($).

'!nJn

(coop~ rative)

partnership is deemed

permis.sibl~

in accordance

with tht consensus of $Chola ... , cond itioM.

a..

reconk d by Ibnu.l-Mondhir (may Allah

have mercy on him), Yet , scho lars disagree only c oncerning some of its

Evuy partner has the right to dispose of the capital Qf rh e partnership due to his share and his being commissiooed by the other parlnn. Th is i~ bc<:ause the word partnership indicate~ each partner$ dcallns on behalf of the other without taking his permissiun.

H:!'ARTNERSHIP ScholaN agree Ihal il is permis.ibl~ to ma~ the capital of the partnership gold or silver, as people have Mn in the habil of doing sO ,in u Ih e lime oflhe Prophet (PBUH) up until nOw without any disapproval However. they d iS3.gr~ whether i1 is permissible or not 10 make the capital of cooperalive partneNhip consist of merchandise (instead of money. gold, or silver). Some scholars maintain that il is impermissible be<:ause Ihe value of the merchandise of onc partner may increase before selling. while that of the olher may nOI, and thus o ne partner shares the increase of the other's wealth. Others view thal il is permissible 10 provide m~rchandi.., as capital in cooperative partnership, which is a sound opinion. This is because th e bas;,; of partnership is that both of the two partn ers can dispose freely of all their funds. and that they share whatever they urn. and this applies to merchandise as well as money.
~ithcr

Among the conditions of the validity of cooperative partnership is that the profit of each partner should be previously specified (such as having onethird or one-fourth of the profit) according to his shal'<'s in the business. This is be<:ause the partners share in the profits, and none of\h em should be favored over the oth er neept with their p",vious mutual agreement. Therefore, the share in the profit of each partner has to be previously specified; otherwise. their partnership is neither permissible nor valid. Accordingly, it is impermissible for each partner 10 stipulate thal he will get his profit from a C<.'rtain object (of the capital). Or that he will get it at a certain time. or that he will get the profit collected on a ce rtain trade journey. The reason for this is that the speCified object alone mayor may nm achieve profit. or that the trade may ma ke only the profit concerning the shar. of one person only. This undoubt~dl y may lead to dispute~ among the partners. Or may make the effort of one ofth~m go in vain, which is prohibited in our lenient Slwr/'~h (Islamic Law). as it involves deception and harm .

CHAPTER

Mudarabah (Speculative) Partnership

, ... ristically, mudtlnlbtlh (Spulativc) part nersllip means giving a certain lmount r>f money loothers in order to Ir..dewith it in return for a shalT in the

profit. Allah, Exalted ~ He, says:

", And oth~"" 'M vtll"glh rnughoutlhflalldJlfklllg{wmdhjngl of the bo ....ty "I Alla" ...~ (Qur'An: Al -Muu.ammil: 20)
The vcrw invalva
~ng

bounty thl'<Mlgh Ime and IIriking of deals.

.~Lo.liw

According to the oo~nsu.s of sd>olan,

p.artnn-ship is d~mtd

pmni5siblc. M~r, this typ<eO( pill1nocl'$hip wa$ p~lictd during th e liklimc

of the ProphH (PBUH ) and he approved of it That JMrtnrnhip system ;.

rq>arted 10 haw WO praClited by 'Urna. Ibnul-Khanih. ' lhh~n Ibn 'Af(ln, . "lIlbn AbfI Dlib, Ibn Ma" lid and other compilers of Hadlrh, with whom none

of the Companions (may All ah be

plea~d

with them all) has disagreed.

]!,PARTN ERSHIP

Wisdom requires the ptrmi..ibility of spe<:ulatiun with wealth, as prople need it; wealth can only be. devdoped or invested through trade and tran...ction. With regard to this is.sue, the great s.;holar lbnul-Qayyim said:

':4. specula/or i. a trustu , a hired f"-rson, a repre~ntative, and partner. He is a trU5te. when he takes the oth.r partners wealth and becomes entrU5ted with it; he is a hired person as he works himself on wealth; he is a representative as he fredy disposes of it; and he I. a partntr as ht sham in tht profit if any' , In order to maintain th. alidity of the speculative partnership, th e entrusted speculators slulre ofth. profit should bt previously specified, as it would be his dut according to such a mullIal agreement."
Ibnul-Mundhir said:

"Scholars unanimously agreed rhat the work",. (the entrusted specuImor) has the right to stipulate a certain peTCtntage of the profit from tht beginning, such as ont-third or half of rhe profit, or whatever is agnt d upon by tht two parlnm, Still, if the owner of tht money specifitS a u rtain amount of the profit or til e whole profit for the worker (the entrusled speculator), or specifies nothing at all, their partnership becomes inWllid ,"'
The share of the profit that the entrusted .pteulator will gd depend.. on the mutual agreement be.tween him and the investor (the owner). Therefore, if the owner ash the worker to trade with his money telling him that they will share the profit together, then the profit is to be. equally divided between them. Moreover, it is permissible for th e owner to stipulate that he will get a certain share of the profit, such as thr~e-fourths or on~-third of the profit. This is beca~ when tht share of each is known, both of them will get his due share of the profit. In other words, wh en the share of one of them is spe<:ifiw, the other's share will be. known accordingly,
If the two parln.ers disputt regarding whoot share of the profit i. the spe<:ified one, it must be given to the entrusted speculator, be. it much or little, This is because he is the on e who dese~s it due to his work and effort. The worker's share of the profit already varies depending on how much effort he exerts; he may get a small shue of the profit for an easy or simple work. or get a large share in CaSe of hard work. In addition, the estimation of the share of profit spe<:ified for the entrwted spN:nlator depends on his skill. Consequently, his share of the profit is to be stipulated, unlike the owner who deserves his shart due to tht wu Lth he OWtIS and provides, not through ~onditions.

1.13

If the ipe<:ulative partnen;hip is cancelled, the profit is to be for the owner, as the capital as well as its innease belongs to him. However, the entrusted spe<:ulator is just to get hi. wage, as the profit is to be according to the stated condition, and th e condition is abrogated n a ~sult of the abrogation of the speculation. It is permissible to set a certain period for the speculative partnership. after which the partnership is to be terminated. That is, the owner of the wealth may stipulate that he will agree on a speculative partnership with the worker for a year for uample. A speculative partnership is also permissible to be based on a future condition. To illustrate, it is permissible for the owner to .pecify a certain month for the entrusted speculator to start using the money of the formu for .peculat ion. He may also ask the entmsted .peculator to use his money for speculation after the latter gets it from such and such a person. This is because speculative partnership is permission of free disposal of the money given by the owner orthe money to the entrusted 'p"culator, SO it can be dependent on a future wndition. On the other hand, it is impermissible for an entrusted speculator in a speculative partnersh ip to work as a partner for another capital owner if that will n~tiydy aff.-.;t his first partner, unless the latter give~ him jl(rmission. For rxample, the wealth of the worker's new partner may be.so much that it takes all his time and thus negatively affects the intel"C'sts of his first partner. Moreover, the wealth oftlte first partner may be so much that it takes all the time of the entrusted speculator, and thus if the latter gets into another speculative partn ership, he may be inattentive of Wme of the first partner's interests. Yel, it is permissible for the worker to speculate in the wealth of another partner when the first partner gives him permission to do so and when there will be no hann caused to th~ first partner's interests. In this connection, if the worker speculates in the wealth of a second partner without th e permiS!lion of the first, cousing harm to the first partner's intere'ts, the worker is to take hi. share of the profit made through his SKond speculative partnership and add it to the profit of the first partnership. After that, the total profit is to be divided hetwun him and hi' first partner according 10 their previously .tated conditions. This is because the effort exerted by the worker in his second speculative partnership should have been exertNl in the first. It i. impermissible for the worker (entrusted speculator) to . pe nd from the capital of the speculation, neither for travel . XV"nses nor for anything e~, unle.. it is previouilystipulated. This is because the worker is supposed to speculate in his part nu'. wealth in relllrn for part of the profit, .0 he is

n'

lI:PARTNERSHIP

not allow~d to spend from the main capital in petty expenses and thus take more than his share. This is only p ermissible if it is previously approved by the owner of the money or there is a conventional trade practice that enables
one to do so.

The profit should not be cli,! ributed as long as the contract of the speculative
partnership is in effect. unless both parties agIN to divide it. This is benuse the profit is rrgarded as a means of protecting the capital; the profit is used to cover any aaidentalloss during speculation. So, if it i.! divided while the
partner~hip

contract is in dfect, it will not he possible to make up for any

accidental loss, In brief, the profit is a way of saving the capital, $0 the w{)Tkrr does not have the right to claim any profit tlcep! after the capital .!"'fit is

complddy "'gained. Since the worker is a trustee, he has to fea r Allah regarding what he is entrusted with, and should bt btli~ved r'1lard ing any claim about loss or damag~ of th~ prop"rty. H~ should also bt btli~d cona.ming what~~r h~ claims h~ has purcha,~d for himsdf not for the sp"culation, or vice versa, os h~ is entrusted with that from the btginning. And Allah knows Mst.

Endnotes
1 ~ ilh. Iootnot .. in A,.Ra"'ll ,o.lM"rbi' " 151253). 2 See : K;I~b AJ{imJ ' " (p. 58).

CHAPTER

Reputable Partner, Manual, and Comprehensive Partnerships

First: Reputable Partner Partnership
It is a tme pa rtnership in which T or mon partners provide no capital WO

but lhey are reputable enough to purchase !Tllde goods for deftrml. payment.
Thr partners 5hare what~r Io&s or profit in accordance with w/w they have pn:viously itipula\ffl. Th u kind of partnership involve\! no ,.pibl Rather, the partners pu rch .., and sell good. dependi ng on t heir good reputation, covenant. and penplc', ' .UlIlln them, and shan: In the p rofit according to their pfe'Vious slated conditions; the Proph .-t (P HUH ) said:

"MuJJims musl kp to the conditiollJ /ho/

"11"" W1l1de."'

Thu type: or partnenhip Ui $imil or to . ind" (COOf>eralive) pMtnership. so it is given the same ruli ngs. Each of lhe two pl'l ncrs is considered a rep r~lll.tive commissioned by the olher partner, U this type of part nership i. bastd on commission and spon.onhip.

II ,PARTNERSHI P The share of each partner, wilh regard to the ownership, is to be specified according to their mutual agreem e nt, be il an Njualless, or more share. In addition, each of them is to bear his share of Ihe loss in accordance with what he owos in the partnership; if one owns half the company, one is 10 bear half the loss, and so on. Likewise, th e share of the profit of each partner depends On Iheir previous stipulation, be it half, fourth, or third of Ihe profit. This is benl.l5e one of them may be more reputable and trustworthy among merch ants Ihan the other, or more skillful in trade than the oth er. Moreover, the effort orthe kind of work done by one parlner may differ from thal done by the other, so one of them may d=rve to have a larger share than that of the other. In such a case, th ey are 10 stick and refer to the co nditions they agreed upon. It is worlh m enlioning thal each partner in Ihis type of partnership hai the same rights 'taled in 'in<ln (cooper.u ive) partnership.

Second: Manual Partnership

It is a kind of partn ership in which IWO or more partners sha re whalever

they e arn by their Own work. h is so called be.:ause the partners use their manual po~r in working, as a means of earning money, and they share whatever profit they get. The legal proof of the permi"' ibil ity of marmai partnenhip is the b.adilh in which Ibn Mu'Cld (may Allah be pleased wilh him) said:

"I, 'Amm<lr, und & 'd became partM m in whut we wouldget (from th. booty) on Ihe DuyofUhe &Itle of) Badr, & 'd then brought two prisoners, bUll and 'Ammdr did not bring any thing."

(Relaud by Abu DAwild. An Nasal. and other compilers of Hadllh)'

Imlim

Ahmad commented:

"TIu: Prophet (PBUH) made them share in Ih. <>wnership ofth. two prisoners. Hen,", this hadith pro"", the ~rm;ssib;lity of manual

/XIrtnrnhip:
As soon as partners gel inlO manual partnership, the work, accepted by

one ofthern become obl igatory 10 be accepted by the Olher(s) . So, each of the panners is demanded to fulflll what has 1>n accepted by Ihe othe r, as enta iled by the manual pattnmhip ~n them.

Manual partner!ihlp is still valid e~ n if the partnen do different kinds of work. For example. It Is permissibl e to make a manual partnership bttween a tatlorand a mdalworker. and 50 on. w r y partner has the right to demaod his tqual sbarc in !he: prol1t made by the nthn. Also. in ~ lheyieue a place, it is pnm;wble for the tenant to pay any of them the rent; aod in <;Ut Ihey rent a place. the wdlord has the right 1 as.kanyofthem for the rent. This is becaUK 0 eadt of the IWO partners is considered. I'I'presenlatiw of the other. 50 they , hare whatever respon'ibilities or duti es due 10 their manua l partnership. Manual partnmhip is also Vllid in castS of lawful manual work such as , uu ing firrwood, col lecting fruit from m ountains. mining, d e. If oroe of!he: pilrlllmi bomes ill, the profil gairoed by the other should AiII be divided between both partners. This is supported by the aforementioned narration which lIates that Sad . Amm!r and lbn Mu'Od made a manual partnersh ip, lInd Sa'd then brought two prisoners, while the othe rs failed to ~t any; howewr. the Prophet (PBUH) rnlde them shllre in the ownermip of the !WO prisoners. With regard to this iUll(, if the healthy p;ortner demanded the $id ooe to appoint a new worI<.er as a ,ubsfitule, the sick pa rtnn is obliged In agIft. This is \)aUK their partnersh ip il based nn manual worit 00 the part ofbothofthem. So. if one of them is unable to work. he hUlo appoint another in his place to maintain the validity of Their partnership contract. Therefore, if the ill partner refuses to appoint someone In his place. the other partner can cancel the partnership contract. In man ual part nership, it is pnmissible t~t partnersshau in theownership of riding animals or tuis and share wbat~r fo res they get from them, fOT it is a tneilI\S of eam ing .fler all. It is also permissible that. person gives an animal Or a tui to anothe r to work on and sha re whatever fares th ey get. Similarly. it is permissible that such manual parlnership is concluded betwee n three partners; one provides the animal fo r example, the other provides the n~ tools., and the third works 1'11'1 it. and that whatever Ill.,. earn is tn be distribu ted among !he:m. Likewise, such panroership among agencs (woo promote the selling proc('$$, display the guods, and bring C Ullome ...) is dHmoed. permissible. and what evn they earn is to be diSlributed among !he:m.

Third: Comprehensive Partnership

It is a type of partnership in which each pa rtner authorizes the o ther to handk fr"",1y evff)' aspect of the capitalllnd labor, It includes all the afOleaid types of partnersh ip; cooperati~, reputable plrtner. manual, and speculatiw

It also inwlve. that weU as what they OWe.

pann ~rship .

'"

IU'ARTNERSHIP
lh~ partn~r:s

may shau what the y possess as

This comprehensive type of partnership is p"rmiSllible. as it comprises f>l'rmissible types of partnership: it is d~med permissible be<:a~ all its component! arc d..,rned so.
With regard to this Iy!"', the profit is 10 be distributed in accordana. with the partner:f mutual agreement. As for Ihe [o$S, it should be borne according to each partner's financial contribution.

In this way, our sacred ShM/'ah (Islamic law) extends the means of earning within the permissible limits. It allows man to get his earning, whether individually or through sharing wi th others, and makes people obliged to fu[fiJltheir condition~ provided they ore lawful and just. All this confinns the validity and applicability of Ihi. Sh,.rr ',.h everywhere and at any time.

Finally, we invoke Allah to grant us the abidance by this sacred Shurf',.h and to hdp us follow its path, as He is the Hearing and th e Rcsp<Jnsive,

Endnotes
I AM Dilwold (3594) 1411 6]. ~ . Iso At_ Tirmidht (1352) (3 /634). 2 At>(; Diwud (3 3~S) (3/440), An N. .. 1 (J941) [41611 . nd Ibn Mijah (2288) (]n9j .

CHAPTER

Sharecropping (Muzara 'ah and Musaqah)

MuzJra' air and musdqJ/r arc [WO ~ySlems among the systems of condu~t;ng agrkuiturollransaclions which peoplf practiced fmm the andent times due 10 the di"" human need !lf thern . A person may possess a c~rlain number oftrecs that he cannot atte nd to Or use. Another may have the capacity [0 work but he owns neither trees nor land. Thus, the [wQsystem,uf muzJ,.. 'all and muS<lqah were pcrmined for th e bendi! of the Iwo parh ... , just as all the Islamic legal transactions which are based upon just ice, the achievement of benefits, and the prevention o f ouses o f corruption.

Muso1qdh
Faqlhs define musdqllh as gi,-ing planted Or unplantcd trees along wilh a pie<:e ofland to SODlwne to plan t them therein , waler th em . and J"'rform the necessary work until th.ry- bea, fruit. The farmer then is to be given . specified share of the fruits of these trees., from 3n unspecified p" . 1of Iheland, while the

rest goes 10 I h~ir owner.

'"
Mu7.ira'ah
land along with some
~ds

Ilk SHARECROPPING AND RENTING

Muwra 'all is d efined as giving a land to someone to cultivate Or giving a

10 Wmecne to plant them the"'in and tah ca,..,

of the plan tation in return for a spe.;ifled portion of th e harvest, from an

unspe<:ified part of the land, while the rest is for th e landowner.

A pTe.:onditioned part of the harvest in musdq<lh and muzolra "air goes to the landown er while the ,,"sI is for the sha",cropp.. r. The legal evidence ofthepermissibility of musdq<lh and mu~dra 'a!J isd ear in thebadlth narrated by lbn 'Urnar (may Allah bf, pleased with him) in which he said:
a contract with the prople of Khaybar for them to uti/iu Ihe land Oil lite condition that half the
har~m offruits or plants would /te Iheir rhare.~ 1

"The Prophet (PBUH)

co"dud~d

Moreover, Im'm Muslim related:

"The Prophel (PBUH) returned to the Jews of Khaybar the date palms of Khaybar and their ulIId on the condition that they should work upon them with their own wealth (seeds, implement" etc.) in return for half of the haryest."'
Im' m Ahmad also rel ated:

"The Prophet (PBUH) gave the people of Khaybar Ihe date palms and the land of Khaybaron th e condition that they wil/give halfof the yield {to Muslims).'"
These b.adiths prove the validity of musdqJh in Islam.
Imim IbnulQayyim said:

"In the story ofKhaybar. there is a legal evidenuofthe permissibilily of mu.<llqilh and muzdra ah in return for a specified portion of the yield, be it fruits or crops. The Messenger of Allah (PBUH) continued dealing wilh Ihe people of Khaybar (through musllqJh and muulra ah) until his death, and he ne"" inyalidated it. The Rightly-guided Caliphs continued dealing with these two systems as wdl, not as aform of rent but as a kind {}jpartnership which is t.Wclly like s~cu/atio"."'

'"
AI.Muwaff... Ibn Qu.d i mah ... id:

"TIr.. Rightlyguirhd Clliplu applied th~ ,,,tun. during Ih~jr cilliphates. Tht.e systems Wf'rt widesprMd and none prohibited them. Thus, there was u (ons....."s among th .. MllJlim scholars cm
Ihdr VIl/idily'-

He added,
"/1 is impamiJjjb/e /0

my on that which disllgna with rht s..nMh

(PropItdk T,...mtwn) andjuriSliurm<tnsus in this ngfJrd. Mllnyart Ihou: wh" a ...n dat.. pill,", and /rrn wltiell IIrq 11'" ,,"abl.. I() atrCld Ill, wartr. or kll .... 0 .. the olher 1Mnd. tire..., QTf! peopk ..,110 do not own any trees but rlrq lIud tire fru;tJ. Thus, th .. ptrmiJjibility of rlr ..

two systems satisfies both "ttds and accomplishes tht l>enefits of the
/WlI

parties" '

Firstly: Rulings on Musdqdh

Fa/jlhs (may Allah ha~ IMrcy on !Mm all) mmtioM>d that for the mus4qolh 10 be valid, tM Irm in qU <'$tlon would ~ that of wibl .. prOO""". They also stlted that it is imp"rmissible 10 apply this system on fru!!l6S lrus Or on~ that bear inedible fruits, as the~ a~ no rulings pertaining to i uch cases.

Among the conditions for the validity of mJ.,<lq<lh is the estimation of the sharec roppers or the own er" share with a sp"cified portion of the produce, like, for exampk a third or a quarte r. whethoer the stipu lated oharoe is littloe or big. Accordingly, it i, invalid if they stipulate that all the yield would be {or one of them. boecal1i'C in this case One ofthoem would ha~.ll thoe han~ while the othtT would have ncMhing. It is also invalid to stipulate a certain number of 1<1 .' of t he harvest . like tC1l or twenty 14 11, for the trttS may yield noth ing but this amoum and. in this ca:>oe. the one with the specified sha~ would have all the yield. Simi larly. if a certain sum of money is sti pulated for onc of the parties it will be inva lid. for the harvest may not be of the same value prc-v>ously oe5timated. Mo~over. it i. invalid to make the sha~ of onc of them limited to the frui t of one or somoe specified tnet.;&J it may happoen that only those spirted t rffS arc the onrs which will be", fruit. SO onc of the p,artits wiU havoe all the harve$t. On the other hand . the JpKifted. Irroe(ij may not bear fruit at all. and thus the onc with the pl"KOndilioned share woul d be deprived of any shl~ of lhe harvest. ThU$. there will be riok and Iou in such Clses.

Ill: SHAItCROPPlNG AND RENTlNG

The valid opinion maintained by the majority of Kholan ts that mll5<lq<1/r ts a binding tontracltha t t annot bot cancdled by o ne o rtM two parties unless the other gives hi' consent. It shou ld be. for a specified period oftime even if il
\s long, so long as the trees are there. It binds the sharecropP<'r to do whateve r Is needed for having a good harvest; like plowing, watering, removing the harmful pliUllS, grafting date palms, drying the fruilS, fixi ng waterrou""s, and d iitrib uting waler among the l IftS.

The owner of the IrffS has 10 do whatever is nccQSJry 10 preserve the assel ,
rwndy the l IftS.. by diginS a wdI (or providing a ny IJOUKf of water), building walls, aod the like. The ownc.r has also 10 provide liI.e maln-ials n e<:es.5ary for lIfIvi ns strong healthy trcn like fertiliun and I~ like.

Secondly: Rulings on Muutra' ah

Giving the ~s to the sharecropper aJong with the land by the landowner is nOl a condition for Ihe valid ity of muz..:!", "h. Thus. if ~ bands 0'I'Ct" the land to the ~arccroppcr 10 cultivate using Sds belonging 10 the latter, il is considered penniSiibJe as maintainfd by iOffit of Ihe Prophets Companions and acled upon by people aftet wards. This opinion Is band 011 the rvidenteof the validity of mu:.lro .ah. namely the hadith illustraling the Prophet's <kallng with the ICW5 of Khaybar in this agricuhuu l 5)'5tem; the Prophet (PBUH) granled them th e land to utilize on the cond ition that half th e ha"""!t would be their share. Yet, it was not men tioned in the had/rh that provid iog 5CCds Will incumbent OIIlhe Muslims. Imt m Ib.IUI-Q.yylm (may Allah have mcrcyon him) said: I1Iose schoItns who Slipu&lre- r/"1I lilt limdlorrl mWI prrwitk "long with tN /al1d (111 mu~ra aIr) Mu thdr C1piniOI1 (111 <Ill att<llogy wilh Iht judgmenl fMr'"il1ing 10 spccul.ilivt parlllrnhip. HCtI'ItVtI'; thjj aMIPgy dcQ nor alliy wlttradictlht ~ulhenli, SUl1l1a1r (Proph~lk Tradition) ~"d II,e OpiMions oflh. Prophd. ec"'p'lnions. bul 1I is nlso ~rdM "s om oflhe IWrJI nlld mOSI cortuprlw ana/og'"'''/ dfiiudioMS. This is ba~ tilt (lIpi,,,/ in sp.=/aliYe parrncship go<'S bad: 10 ill """,", Ihtn lite 1_ /"'rtnut divide tlte profit "mong!Mm. ThI! /and ;" momf",WI jj Jjmj/4r 10 lIu mpilal ;" I/,u/atiw frtnuship. for both go back to Ihfi, 0WII1Tl. ~. fhl! SdJ. if prrwNkJ ":r rJw /andlmd. donOl m um 10 him, <l< Ihry ,,,,, f<lflSumcd jUSllik allOlMr limd cOlllum<tbitJ. Tha-rjon, "K",dlng lite $HdJ nl Aconsumable ~I

-.u

is IWrthj~r Ih~1I regardillg the-m as a rtmaining ont."

,.,
The legal proof of tht permissibility of muzAra 'ah is stated in the
hononoble Su nnah as mentioned above. The nttd for ", .....Ira 'a" also caUs for It' permissibility. as there are many peopl" who own agrkulturallands

but cannot attend to them, and there au many others who can work in
agriculture but do nOI own lands. Thus., the lslarnk legal wisdom ascertains the poerm i.. ibility of ",,,.. am 'a/l for the brndit of the two parties, Ihe landlord and Ihe sharro~r. ln this way. cooperation for K<'om plishing ben<fil$ a nd avoiding dall'\;lgei will br achi~cd.

S/ulykhul-blim, Ibn liymlyah (nu.y Allah luvt mercy on him) said,

M"Z<l", ',u, iJ of mort: lHuie origin than tenaltcy l11ld dQSer to main taining justice, ,u the two parlie. share the profit DJ mll Q$ tht kw:'

Imim Ibnul-Qayyim (may All ah

ha~

mercy on him) laid:

for

"/1 (i.t . muzdra .ah) is jar/htrlrom inj.. rti'f and Iu! rm t,na"C)I in tnwncy ont 01 tht /K'rtin ",ill Jurdy gllin profit "'hilt in nluulro 'Ilh, if thut ii Il crop. bo,h "'ill mlln Iht profit, lInd if thut ;1 .,<11, IIIq M'iII mlln Ih t kJ,u."

I"""

Having a specified mal'( for th~ sham:ropptr or the landow~r from the crop is a condition for the validity of muZ<lrll 'llh, a nd the $pifiNl sha~ sho uld be a known part ofth" hrvest, such as a third o r fourth of the ha"""st, This is because the Prophet (PBUH) granted the !",ople of Khaybar the lands on the condition that half of the yield should be for the Muslims, rhhe share of one of the fNlMin is spified, the rest will be for the other; . Inu the yield is theirs, if one &hare is spifled, the other &hare will be known accord ingly, It is in",",id to specify a certain weigh t ofthto ~rop. such as a certain number of 111 '5, or to spKify the yield of a c"Main fNlrt of the land, for 0 ""' of the two f>M1i.,., It i5 at.o invarld for the r.ndowne, to stipula te that he will take an amount of the cropequar to that of th e seeds he has provided and then they both share the rest. This is beca use the land may not yi eld but this amount, and in liuch a case, the landowner will have all the crop and the share.:rowr will hive oothing. 1t was narrated that when Ri n ' Ibn KhadlJ (may Allah be plea$l:d with him) was asked about renting L and in re1urn for gold and lilve. (Le. d inan and dirhams; money), he said:
"'/"he", is noham! in i/, Ho""""'''' pmpk (Io.,do ..mer$) usnll"

""If

Iht:i. 1<Hld.during 'he liftlimto/lkt Messengerol AI/Ilh (PBUH) in rtturn lor 'he yitld situllled "("Or canals, />;Inks 11IId a/ the t Mds 01
Ihul""am kls, "rjn rt'lurn for Ih. ""gela/i"n "I a specific Ilna "I,he

'"
I~Md.

Ill: SHARECROPPING AND RENT!NG

Sometimes the wgetatioM of the specified ~rea was damaged (by blights) while Ihe ,t s/ remained safe, and vice ve'.l, Peopk did not rent their lands eXCfpt through that way. Yet, Ihe Prophet (PBUH) prohibited it, l>ecauu it involves harm to peopleS interests tlwt may lead to disputes at1d devouring peoples wealth unjustly. Howevet; there is no harm in renting the land for something specified and guaranletd (such as silYer and gold; money;'-"
This narration prov~s the unlawfulness of muzdra 'ak in return for what may bring about harm and dispu te among people.
lbnul-Mundhlr sa id:

"Records reported/mm Rdfi' came with reaSOnS whl,h demonstrale that the Prophetic prohibirion was for /heu same reasom thty did
habitually. Rdfi' S<lid, 'We used to rent the land for the yield of a 'ruifi' porlion. Bul .omelime. that porlion did Mt give yield whil~ Ihe ".1 of Ih. land did. and yiu versa.' . "

Endnotes
I A IBuxMri (2328) [5114] and Muslim (39)9) [51453]. 2 Muslim (3943) [51456]. J Ibn M~jah (2468) [31174].
4 See the footn<Jte in ,/,...RaM"fi,/I_M"rl>i .. [5/2 76].

5 See: ,/I.M"gnnf" (71 530). 6 See: "the footnolc in ~,/,...R"wr.l '/1 -M",1>1" [5/289]. 7 See: 'Majmu'ul-FatawQ' (2&185 ). 8 See: "the footnOle in ''/I-RaWf/. '/I-Murhi ' .. (51287). 9 Mu.lim (3929) [~449J. See .1.., AI_BuxMri (2327) [5/13]. 10 AIBukhiri (2722) [513%].

CHAPTER

Renting Things and Hiring People's Services (Ijarah)

contracts of renting and hiring continually recur in the lives of people concerning their different interests and their daily. monthly and yearly deal iogs.
Thu~,

Th~

it i~ important to know the rulings pertaining to such dealings, for all !,<,ople's dealings. wh=r and whenever they are, are codified in Shari'oh (Islamic Law) in accordance with legal nOnnS which guard interests and put an end to harm.
Ijdrtlh means renting !;()mething or hiring somronc's ~rvices in return for a certain payment. Allah, Exalted be He, says:

..... {Molu} said, 'Ifyo,. wls.lu d, you could ha ve 1000nfor it

/J pay~nt!"

(QuI'lln: Al-Kahf: 77)

According to Muslim jurists, (lArah i. defined as follows: a lea.., for a lawful

identified \lie of either an identified presl:nt or described anticipated thing, for

...
=.

Ht SHARECROPPING AND RENTING

a specified purpose and for a known perioo of time, or(a hiring agrment} for the performance of a cerlain ~ervice in return for a specified com~nS1ltion.
Th e aforesaid ge neral d efinition comprises most of the validity conditions for ijJrah as well as its types:

The phrase "a lease for a ... use" implies that the hiring of slaves is not included in ijJrah, for it is rath er felling than hiring or renting in this The word "lawful" excludes all kinds of renting or hiring for unlawful

use, like adultery for e:<ample.

The phra.., "identified use" exdudes any unknown knell! or
US(

through

ijJr~h,

in which case the lease becomes invalid.

The phrase ", lawful identified use of either an identified (present) or described anticipated thing ... or (a hiring agreement) f()r the performance of a certain service" indicates that ijarah i. of two trP<'s:
Fintly, ijdrah can \>(: for the use of an identified (present) or described anticipated thing. An example of renting an identified thing i. when a landlord ~ays, .] rtllt you thi~ hou~', while an example of renting a described thing is wh en an owner of a pack animal who rents it !-ays, . , rent you a pack animal of such and such a description for transporting Or riding." Secondly, ij4rah can al,o be hiring someone for performing a specific ,ervice, like, for exampl e, someone who hi",s another to drive him to such and such a place, or to build him a wall Or the liL:. The phr"",, "for a known period of lime" mea"" that the rent period should be specified; a day or a momh, elC. The phr= "(or a specified compen,ation " indicates the necessity of specifying I he paymenl for renling something or hiring SOmeOne. Thus. all the val idi IYco nd it ions of the two types of ij~rah can be summarized in the following: The lease hu to be ",lated to the use ofthl:" object, not the object itsc:lf. This use of Ihe obj ect should be lawful The purpose of reming should be known. If the rem objecl is not identified (present). il should agree with Ihe description ofi15 OWner.

Ch'p'et 2: Renting Thing< .nd Hiring I'tpk', Sef'YW:e' (lj4",h)

'"

Th" ""nt period should he specified. Th" rental payment should he specified. Thevalid ijllmh is pennissible accordingto the Qur'An. tbeSunnah (Prophetic Tradition). and juristic consensus: Allah. Exalted he He, says:
~"

,And if they l>rtastfud for you, the" gin them thtir pa.ymmt . : {Qur'ln: At-Iallq: (i)

Allah also saY":

{Moses] said, 'lfyou wi.hed, you could hay" tau"fo, it a payme"t.' " (Qur'An: Al- Kahf: 77)
H .. ,

Tb" Prophet (PBUH) also hi""d a man to show him the way during his Emigration from Meeca to Medina. Ibnul, Mundhirsta ted that jurists unanimously ag""e on the pe rmissi bility of ijllrah (renting something or hiring somwne's service) '. Mo""over, ij4rah is a human necessity. as there i. n""d for the henefits of rmt a~ much a5 theer is need for the objects of r~nt. It is permissible to hi"" a person for a certain job. such as for tailoring a gannent, building a wall, or for guiding one through one's way, It is stated in S<lbill AI-BukMrl (Ai-BukhMll Authem,c Book of l:Iadllh) that' Rishah (the Prophet'. wife, may Allah be pleased with her) narrated in the bad/Ill of the Prophet'. Hijrah (Emigration to Medina):
Prophet (PBUH) and AM Bakr (may Allah be pleased with him) employed 'AbdulMh Ibn Urayqi!AI-lAylhl as aguide; he was an expert guide."'
~The

It is impermissible to rl'nt hous~, ~hop.o; and stores for committing sins, such as selling intoxicants or forbidden things like tobacco or making pictures, as renting here is considered an assistance in oommitting sins. It i. permissible for a tenant 10 rent what he has rented to somwne else 10 make use of, for the tenant is consideerd a temporary owner of what he rents_ Thus, it i. permissible for him to use it or let someone else use it instead. Still, the second tenant must use the rented object in the same way of the first, or in a better way, For example, a tenant of a house can rent it to another tenant provided the laller u~s it for living the""in or for a less damaging u~, However, it is impermissible for him to rent the place for someone who will use it as a factory or a laboratory,

Ill, SHARECROPPING IIND RENT[NG

11 is impermissible 10 hire someone to perform am of worship Or piety that bring one near to Allah, such as performing liajj (pilgrimage) on one's behalf, or announcing Ihe prayer call (adhdn). This is because such deeds are individually performed to draw one do~r to Allah, and m::eiving wages for them makes them far away from being acts of worship. However, it is permiss ible to receive financial mpport from the Muslims' Public Treasury foracls oflranscending benefit., such as performing Hajj, announcing prayer call (adhcln), leading people in pr~yer, teachin~ the Qur'an andfiqh (Islamic Jurisprudence), judging, and deliveringjatwa . Receiving payment in such cases is not a kind of com]l<!nsat ion, but rather a hdp to perform acts of obedience. This does not void such pious and righteous acls, nor d""s it affect the sincerity of their performance. Shaykhul-Isl i rn Ibn Tayrniyah (may Allah have men:y on him) said:

"Fallih, ~n"nimo~siy agree On the difffr~Hct between hi~ing to perform various acts of worship and granting financial support for their p~rform.". Giving provision 10 fighte", judges, prayer caller> (mu~dhdhins) aMd imdms ' is indisputably permissible. As for hirmg someone to perform SIIch acls of wo"hip OM ones behalf. il is impermissible au:ording to most of them (i.e. Muslim scholars)."'
Ibn Taymiyah also said:

"In such cases, whatever is taken from the M,.dims' Public Treasury is not a kiMd of compensation or wages, but it is provision for helping in performing such acts of obedience. Whoever uses such a financial supporl for working such acts for Ihe sake of Allah will be rewarded, and what he is granted by the MHslims' Public' TreasHry will be regarded as an aid in performing such acts of worship.'"

T he Duties of a Lessor a nd a Lessee

A [e,,,or ha, to do what"""r can help th e lessee to benefit from the object of renl, such as fixing the rented car and preparing it for working and freight, and reconstructing the rented house and fixing whatever i. damaged therein and preparing its utilities for use . When the period of renl is over, a lessee has to tlx whatever damages he has caused.

Oupler 2: Renting ThinI\' ond Hiring Propk', &rvka (ljJrshJ

oljtlrah (",ntingl is a binding contract for th~ two parties, the lessor and th~ I=e, for it is regarded as a kind of .ale,'o the judgments of sale applies to it. A leswr or a less~ cannot cancel the lease exc~pt with the con ... nt of the ot her. But if a certain defec t ap~ar~ about which the less~ has not b<.en informed before . igning the contTact, he has the right to cancel it.

'"

The lessor is obliged to hand OveI the object of rent to the le.. ~, and to enable him to utilize it. If the lessor rents something and then pr~yents the lessee from us ing it during all or some of the period of ",n t, he has no right to receive all or some of the ,<,ntal. for he has not handed the lessee what the leas., has stated, If the lessor enable. the lessee to utilize the object of rent but did not take the rent during all or wm e oflhe per iod of lease, full'<'nt is due upon the Jessee, Thi. is because the lease is a binding one, thus what is stated therein should be carried OUI; rental is the righ I of the lessor while ut ilization is the right of the lessee.

Two Cases in Which the Lease Can be Cancdled

First: when the object of rent is damaged, as in the case when one rents a riding animal and then it dirs, or a house and then it collapsrs, or a land for cultivat ion and then it b~comes deprived of water, Second: When the purpose of renting or hiring is no longer there, as in the case when a ptrwn hi",. or sends for a physician to t'<'at him and then he becomes well b<.fore the physician treats him, In .uch a case, the hiring agr~ment is canceled because its pu rpose is no longer the"" When wmeon~ is hired for a certain work and he b<.comes ill, someone else has to b<. hi",d at his expense to "'plac. him, unless it is stipu lated t hat the work should b<. done by tbe original hired ptrson. This is because the purpose of biring m ay not b<. achieved through another person. In this case, th e hi",r does not have to accept the work of. ptISon otber than the one he ha.. hi",d, but he is given the option either to wait unti l the hi",d ptrson gets well or to cancel the contract b<.cause he cannot get his right.

A Hired Person Is of Two Kinds

i-Privat e hired per son : One who is hired for a specific period of time, during which all his work is a due right only 10 one perwn, t he one who hi!'\!$ him, wi th M paft ~tf$ (~uch a$ a $trvant or ~ driver),

Ill, SHARECROPPlNG AND RENTING

2-Public hired person, On~ who .. us~fuln~ .. is ffiimated according 10 his work, which is nOI dedicaled ID one person, bUI h: can work for more than one person at a lim~ (such os a toilor). A private hired person is not financially liable for what he damages by mistake during his work, such as the case when the machine Or the tool he is using is damaged, This is because he is regarded as Ihe owner's deputy, thus he is not asked for recompen ... How"",er, h~ is to compensate for whatever he damages out of negligence, transgression, or misu ... As for a public hired person, h. is financially liable for whalever he damages becau.. hedoes not de.. rve his payment exceptt hrougb the accomplishment of hi. work. Hence, he is financially liable for his work, and whatever he damages falls under his liability. The payment oflhe hired person becomes due through the hiring contract. He cannot ask for hi. wage. eu:cpt after delivering the work, which is r:garded as hi. obligation, accomplishing the service, or handing over the object of rent (in ca.. of renting, not hiring) ~fter the period of r~nt is over, provided there is no hindrance. This is hecau.. lhe hired person is paid his due coml'f'nsation after finishing his work or delivering what is in hi, responsibility. In fact, the payment for renting or hiring is a kind of oompens.ation, so it is not due except after Ihe delivery of the oompensatory obj ect. be it ...mce or an object. A hired person has 10 perfect and complete his work; he i! forbidden to cheat or deceive. Hoe al.o ha. to rontinue the work during the period he is hired in, and he is not to waste any time during that period without working. A hired person has 10 fear Allah while performing his due work. On the other hand, the duty of a hirer is to payth~ person whom he hired his complete wages upon finishing the work he is hired to do. The Me... ngu of Allah (PBUH) said:
Gi~ the labom his wages before hi~ sweat is dry (i. e. immediately aftu he finishes his work)."'

Ab" Hu",yrah (may Allah be pleased with him) also nar"'ted that the Prophet (PBUH) soid:

"Allah, Exalted be He, says. 'f will be against thru (persons) on the Day ofludgment - and f defeat whomever I am against on the Day of judgment: one who makes a coVt'nant in My Name but he proves trtacherous; one who sells a frt t person (as a slaw) and eats the priet; and Ont who employs a laborer and gets the full work done by him but does not pay him hi. wages.' (Related by Al-BukMrI and other compilers of Hadlth) '

In
The work of a hired penon, a lahorer. is a trust in his responsibility; he has [0 perform and accomplish hi. duty perfe.:tly and sincerely. On the other hand. the wages of a hired person is a d~bt and a duty on the part of the hirer. which is incumbent upon him to fulfil! without procrastination or injustice. And Allah, uahed be He. knows best.

Endnotes
t StC; .... I -Ijm~' (p. 60). 2 AIBukhltrl (2263) 1415531 _
3 Fa,,,,,,, A legal <>pinion i..""d by. mufti lA Mrnlim scholar 'p&iali=:l in issuing I"gal rulingsl in Iflpon .. to .l.yrnon'qu.-.,ion on a poin' ofth< Islamk Law. 4 The imdm i. the 0"" who lead, the cOIlgrtgational prayrr. S Set: 'Majm,; 'ulFatdwd (30/206). 6 Set: AIAI:h/oJr AI .IImtyyah min .... j. [khriyd"'l .... ,FiqhiYY"h (p. 223) .

7 Ibn M:ljal> (24H) 13/162]. 8 AIBukhlrl (2227) 1415271 and

n,., M:ljah (2442) 1311621.

CHAPTER

Competition (Sabq)
Competition in Shari'ah refers to a r~,e between two
such as archery and shooting. Such ['"..lees and contests a .. permi<s;ble according to the Qur'an, SUMMah. and juristic consensus, as thq may be used to improve abilities, Allah, Exalted b.. He, says:
~And prepare ..gainst animal~

or <;ontests

them whaleVl'r you IIrt ablt ofpowtr..."

(Qur'~n:

AI -Ann!: 60)

Moreover. th e Proph et (PBUH) said, "Indeed, stT"l1"gth is (in) archery."' Allah. Euhed be He, states in the Qur'an that the brother,; ofYiisuf (Jo .. ph) said, ~... ;ndud ..... wentracingtach othtr.(Qur'an: Yusuf: 17). i.e. competing
with
t~ch

other through archery or running. Abii Hurayrah also narrated that

the Prophet (PBUH) said:

Ilk SHARECROPPING AND RENT!NG

"No (rewllrd should be givtn for) a competition ucept that made betwem (Ilnimals with) haofs (like come/,), or (those with) clovtn hooft (like horses) or (Ilrms with) blades (ill ftllcing).~
(Related by the Five Compiler s of Hadrth) ' This budfth shows that entering competition for seeking a cer tain reward is permi..ible. Many scholan slated the unan imous ju ristic agreement On the p"rrnissibility

of racing and comests. ShaykuHslht Ibn Taymlyah (may Allah on him) said:

hav~ m~rcy

"HOTStracillg and archery and suchlike warlike contests mjoilled by Allah and His Messmgrr (PBUH) are permissible. as tht)' are useful ill jih~d (fighting in the Cau..: ofAllah):
He also said:

Wrestlillg, running Taces and the like are acts of obedience (to Allah) if they are intended for rendering fslam victorious. and taking l1'Ward (or prize) for winning them is also permissible.~'
Such spnrts arc: permissible if there is no harm in them. Ibn Taymiyah also said:

'Whate""r di$lracls ant from performillg what Allah has ordained is prohibited - even if it is ariginally permissible - such as ~elling. trading and all other activities the idle divtrt themsdvts with, and all kinds of ,ports that do not help in achieving a legal purpose; all such acts art prohibited."'
Scholars paid such great attention to this is.5ue thal they used to sptcify a chapter in their well -known volumes and writings for it. entitling it 'Chapter on Heroism.~

Heroism Is of Four Kinds:

1 Horsemanship contest! and how to attack and retreat with hm_ 2-Archery contest! or their equ ivalents according 10 every age 3-Spear throwing and marksmanship contests 4-Fencing contests

a.. pto. 3: Comrctidon (Sa,)

Whoever excels in the~ four kinds has completed the aspects of heroism. It is permissible to race on foot (as in running races) Or using any riding or pack animals. lmlm AI-Qurtubl (may Allah have mercy on him) said:
"There is no disagreem",/ on the permissibility of horsemanship racing, racing through other riding beast ond foot racing (.uch a. running). Similarly. <lrrhery conte.ts and other weapon contests art permissible. for thue are all considered training for fighting in the c..use of Allah:'

The Prophet (PBUH) raced with -A'ishah (may Allah be pleased with her)' and wrestled with Rukdnah and ~at him ' . Salamah Ibnul-Akwaalso raced with a man from the An1dr' in the p~s.ence of the Messenger of Allah (PBUH)' , The competition for a ",rtain reward (or priu) is impermissible except in camel-riding races, horsemanship. and archery contests, for the Prophet (PBUH) said:
"No (reWtlrd .hould be given for) competition except that made among (anima/s with) hoofs (like camels), or (those with) doven hoofs (Iih horses) 0' (arms with) bladts (in fenci ng).'

(Related by the Five Compilers of Hadith on the authority of Ab .. Hurayrah) This mean. that it is impermissible to get a ",ward (or a prize) for a competition except for camel-riding races, horsemanship, and archery contest., for these are the tools of war the Prophet (PBUH) enjoined Muslims to learn and master. The meaningofthe aforesaid badllh is that it is impermissible to receive prizes for other kinds of competitions. The badlth may also mean that these three are the worthiest kinds of competitions to be practiced due to their significant and general benefits. Thus. we can say that every competition that benefits religion is ~rmissible. as indicated in the story of Abil Bakr and RuHnah ". ImAm IbnuI-Qayylm said:
"As for betting on th e victory of /51am or the materialization of ony of its signs, as don~ by Abll Bob A1-Sidd1q, it is the worthiest kind of competilion, and il is more t!1/itltd to be permimd than bming through marksmanship. horsemandup and camd_riding racing Tt is the worthiest and m05t significant .IOrt of competition with regard to the ~"efit. it achieves to religion.""

'"

III SHARECROPPING AND RHIT ING

There are Five Conditions for a Competition to be Valid

1- Specifying th~ riding animals (hmugh =ing them
2- The riding animals have to be o(th~ same kind. Contestant archers.", also 10 be specified. as the purpose behind the exercise is to find out

their competence and skill in archery.

3- Specifying the distance. so as to identify the winner (in running races)

and the skilled sharpshoorer (in archery Or the likt). The beginning and the end of the race have to be clearly identified and agrrw upon, for the purpose is to know who will win, and this will not be achi~
except through complete equ ality in their aims.

4- The prize should b. known and should k something lawful.

s- The competition has to be completely ("". from gambling; that is, the reward (prize) ,hould be offen-d by SOmeone e).." other than the contestants. or by only One contestant If the prize belongs to the contestants, permissibility of the matt"' is disputabl e, Le. whether it is p"nni.. ible or not except with a mul1allil (a non-contestant who shares in Ca", of profit and does n[lt !hare in case of 10.. ). Shaykhul-1s1;lm Ibn Taymiyah (may Allah have mercy [Ill him) chose nOI to stipulate a muhallil," and said,
"Non- taking a muhallil is worthier and fairer tha" having the ",ward (prize) from on. of tile ..oIl/atalils. It also helps mo", tv achieve the aim of both contestants which is proving the i"competenc< of the other. HOYinga financial reward in this way is permissible."

Ibn Taymlyah concluded "'ying:

"I do no/ know of any of th. Prophels companion. wlw .tipulated a mufyJlliI (in conum). It wil> only known to have been done by Sa ' id
Ibnul-Musayyib. afta- whom people Mh this convention ....

Due to the above, we can condude th.t the p"rmi..ible two kinds;

com~tition

is of

I) ComI'dition that accomplishes a legal Islamic hf,n efit, like training for jiMd and ..,eking knowledge 2) Competition which is intended for entertainment in which the", is

no harm

'"
The firs! kind is the one in which il is permitted to ",cdve a prize within the afo~menlioneJ conditions. Howev"", the "",rood ~ of compe t ition is permi..ible provided that it does not distract one from a duty or divert one from remembering Allah or offering prayer. Yet, it is im('rmis.sible to get 3 prize fur the tauer kind of contests. Unfortunatdy, prople nowadays waste a lot of their tim e and money in that kind of entertaining contests which a.. of no benefi t to Muslims. We seek ..fuge with All ah, ant:! the,.., is no power or

st .. ngth save in Him.

Endnotes
I Muslim (4923) [71651. 2 AM Dl wtld (2574) [31461. At-Tirmidhi (17()4) [4/205 1, An-Na", (359 J) [315361, Ibn Mljah (1878) [3/4001 md Abm.d (7476) 1212561. 3 Set: "1t1_A/;hMr ..1.1-'IIrniYJl<lh mj~ Mlkht(vJrrU IoI.Fiqhiyyah" (p_233)

41he p.<viou. ""'rc<. S Se.: "Ta/.i, "'Hdmi ' " 19/ 1461_ 6 Abit Dlwi1d (2578) 131.SI.nd Ibn Mlj.h ( 11I79) 12I479J. 7 AM D1wi1d (4078) [4/2211 and At Tirmidhl (1789) [4/247J. 8 The An~d~ Ih. StJpporl.,..; It.. inhabitan .. ot MMin. woo had K pIM IsI.m and .upported lb. Prophet (PBUIl) and Olll M MuMji,On (Ih. Em ig .. m.) upon Iheir arriV1lllhe ... , 9 Mwlim (4654) [6/3821 _ 10 Whtn the """ia", derealed Ihe Byunlineo, All ah rev..led, "The B)'UIn/in .. ha". bun <hfr"-ud - In ' he neartSllalUi. BUllh." a/Ur Ihelr <hINt. ",m Qv.m.me wi/h in thru 1<1 nine run .." (Qur'1n: A,RUm : 2 - 4) Therefore. Ab{) B.k, bel tr.. dislxli.", .. ofQu.-.y>h that the Byzootin.. wo"ld d.f.. t the hrsiano Kcording to \he "'..... , 11 $, "Ar-RaW<:! "'1Mu,M [5/350] _ 12 Set: AI .. UhMr AI-' lI",t)"ytlh "'in M_Ik!ltiyt!"lt "'1.Fiqhi)"ytlh" (p_233)_ 13 Set the footnote in "".Rawd "'1Mum; " [51353-354 ].

CHAPTER

Lending SO!flething for Use

CAriyah)

Faqihs (may Allah havemercy onallofthem)define 'driyahasa permission for benefiting from an article who"" use u; permissible, and then the borrowM article ~mains until it is returned 10 its Owner.

The aforesaid definition excludes whatever is impermissible 10 UK, for such a thillg is naturally prohibited 10 b.e lent. It also excludes any object that ,annot be used without being consumed, such as food and drink.
undillg objects for use is legal according 10 the Qur'in, the Su"noh (Prophetic Trodilion), and juristic consensus:

Allah, nJted be He, states in the Qur"n Ihal He damns those who
": ..,U/UwUf {,/mpl,{ _IJ/o" ".n (Qur';!.n : Al-M;I.' itn : 7) The verse refers to thost: who withhold the different wares and articles Ihat

people use and lend each other. Those who abmin from lending rueh

,.,

ilL SHAREC ROPPING AND RENTING

objects 10 people in dire need of them are dispraised in the above

mentionw Verst that proves the obligation of lending as maintained

by Shaykhul -Islam Ibn Taymiyah (may Allah have mercy on him),
provided the owner oflh. needed object is wdltodo ' .
It is stated in the Sunn~h that the Prophet (PBUH) borrowed a ho"" fmm

Abu Ialhah 1 and .IS{) borrowed shidds from Safw;\.lllbn Umayyah',

something to someone who badly n eeds it is ,.,gankd.s an act of obedience to Allah. for which th.e lender wiU he greatly rewarded by Allah. This is becaust it falls under the gener~J meaning of mutual assistance and
~ ndjng

cooperation in righteousness and piety.

There are Four Conditions for the Validity of Lending

I ) The Jegal wmpetence of the lender to lend, as lending is a kind of donation which is invalid 10 be done by a minor, an insane person, or a foolish and weakminded one.
2) The legal compe1ena. of Ihe borrower to be lent; he must be legally

C(lmjJ(lent to accept the term.1 of the agn:em ent (10 give the artide back) .

lent

3) The permissibility of using the lent objed; for example, it is impermis sible for a Muslim 10 lend a Muslim slave 10 a disbeliever. Similarly, it is impermissible to lend a hunting tool to one in the state of 'IIrJm (ritual consecration duringHaji or 'Umrah); Allah, Exalted be He, says, ". .. but d" notro<Jpn-a~ alld aggrewolI ... (Quran: A1Mi'"iciah: 2).

i",,"

4) The lenl arlicle must Il'main

as it is after use, not to be consumed as

mentioned above. The loaner can retrieve the lent object whenever he wishes unless it results in causing harm to the boIT~T, as, for example, when. person lends something that causes damages to the borrow", if it is Il'daimed by the loaner while it is being used. To illustrate, if someone lends another a ship to carry his good.., he cannot redaim it so long as it is in the sea. Another ezample is that if someone permits another 10 use his wall to support his wood on, the Owner may not reclaim his wall ... lo ng as the wood i. on it. The borro~r must preserve the loan more than he preserves his own money, SO as to give it back to ilS owner undamagro. Allah, Exalted be He, says:

Ch.apttr 4: unding Som<rhing for lJ>< ('A"",IJ)

163

"Indud, Allah command. you to rendn tlUSt. to whom they aredue... (Qur'~n: AnNis~': 58)
H

This ven;e proves the obligation of rendering back trusts, including loans, s.ak to their owners. Morr<lver, th e Prophet (PBUH) said:

"The hand (referring to man) has to give back whM il had laken (by meanS of borrowing, stealing, ete.)."'
He (PBUH) also said:

"Render the trust to him who entrusted you (with it)."'

The above legal texts prove the obligation of safekeeping whatever one is entrusted with and returning it in a good condition to its oWner. Loam are indicated in the general meaning of these texts, as the borrower is in fact entrusted with what he borrow> and he is obliged to return it; he is only permitted to "'" it within the limits of usual usage. Thus, it is imp erm issible for a borrower to overuse the borrowed object in a way that may damage it. nor is he permitted to use it unsuitably or improperly. for he is not given permission to use it that way. Allah, Exalted be He, says;
" Is the rewardfor good {anything] blltgoodr

(Qur'an: ArRahm;\n: 60) If the borrower uses the loan for any purpose other than Ihat fo r which it has been lent and thus il i. damaged, he has to compensate for it, u the Prophet (PBUH) said:

"The hand (referring to man) has to gi"" back what it hlld taken (by means of borrowing. maUng. ete.)."
(Rdattd by the Five Compilers of Hadith, and AIH1kim regarded il as a ~alJtll (authentic) b,adith)

This hadith pro~ the oblig~l iOll of retumitlg wh~uver otle has borrowed
from another, and that O!l~ is not f= from this duty except through ",turning the loan 10 its owner or 10 someone on his behalf. However. if the borrowed object i ~ damaged while being properly used, the borrower is nol financially liable for il, as the lender has permilled him for such proper utilization. T hus. the borrower is not obliged to mah up for any damage ",suIting from such permitted u...
It i. impermissible for the borrower to lend the borrowed thing. because whOtVer i. permitted to lIse something is not perm itte<l to lend it to someone else. for this will subjecl il even mol\' 10 bt damaged.

HJ: SHARECROPP!NG AND REUflNG

Scholars disagreeon the obligation of the borrower's liability for the damage o( the loan due to misuse. Some .scholars maintain that it is obligatory for the borrower to make up (or the damaged loan. whether he has used it properly or not. They b~ their opinion on the general meaning of the following IJpdlth: the Prophet (PBUH ):

"Tht hand (reforring tQ man) haj to gin back what it h<ld taken (by means of borrowing. jteaUng. el c.)."
This applies. for example. when the borrowed beast dies. the borrowed

garment is burned. or the borrowed object is stolen. However, some scholars

are of the opinion that a borrower is not financially liable for the loan so long as he has not transgressed in its utilization; he is liable for it only when he misllS<'S it. hrhaps this is the most likely opinion. as the borrower gets the loan with the permission of its owner. so it is regarded as 11 trust kept by him. The borrower has to safeguard the loan. care for it. and return it to its owner as soon as he achieves th e purpose of borrowing it. H. should by no means be negligent in using it or expose il to damage. This is kcause the loan is regarded u a Irust kept by the borrower. and ils Owner is supposed to haV<' done good to him; Allah. Exalted be He. says:

-" the re'!IIud for good {anything] Imt goodr (Qurln: Ar-RahmAn: 60)

Endnotes
, S=" M-';'khlrJr ';'1 I1miyy<lh min M/kMy.lrrlt AI-Fiqhiyyah" (p. 231).
2 A1_Bul<h!.rt (2627) 15/296) and Mu<lim (5962 [8/67). 3 AbO DAwOd (3562) [3 /526 }.

4 Ab~ Dolwtld (3561) [3/526). At Tirmidhl (1269) [)/5661.lbn MAj.h (2400) (3/138] ilIld Al-Hlkim (2357) [1J60). 5 AbO DAwOd (3535) 13/516) .nd AI Tinnidh! (1267) [31564].

CHAPTER

Usurpation
According to thefaqfhs. usurpation refers to usurping other's possessions by force without having the right to take them.

Usurpation is prohibited according to juristic consensus. for Allah. Exalted be He, I<Ifs:
~Alld do

nol consume 0 .... alIother', ",ealtll u"Jusllr...~

(Qurln: Al Baqarah: 188) Usurpation is considered one of the grievous waY' of eating up money
unjustly, for the Prophet (PBUH) said:

Verily, )'Our blood. property and honor art sacred to one another (a, Muslim,)." '
He (PBUH) also s.aid:
"The pro,,",! of 11 Muslim i5 not lawful (to be tllk.,n) txctpl by

his consent."

'" The usurped wealth C(luld be real cstale or

(PBUH) said,

111, SHARECROPPING AND RENTING

~

movable property; the Prophet

"If allyone u

tvrts a span of land ""justly, hiSlltc/c will be encircled

with it down seven earths (on the Day of Resurrection);'

A usurper has to repent 10 Allah, Almighty and Ever-Majestic be He, and return whatever he has extorted to its rightful owners, asking them for
forgi""nes.s. The Prophd (PBUH) .aid:

Wlwever wrongs anyone In a matter that concerns hiT honor or

any other matrer should ask his forgiveness as soon oU possible, before a time comt$ when there is lIeither dinar nor dirham (ie. before the Day of RcsurlYctiOIl when wealth cannot comprnrore for ones wrongdoing); if the usurper hasgood <keds, they will be taleen from him according 10 his usurpatioll, and ifhe hIU no good detds,
fhe .ills of the opprt:5Sed person will bt /""ded on him:'

If th~ usurpi'd property is availabl~. h~ should rd um it in the same condition he has taken it. but ifit is damag~d. h~ would rdum its equival~nt.
hum AI-Muwaffaq said:
"Scholars unanimously agree Ihal il is obligatory to rt:turn th e u$urprd properly if it is .MiII in the same clmdirion and unchanged:'

Furthermore. the uSUIp"r has to pay back the uSUIpi'd prop"rty along with the profit he has made through it. be it connected wit h the proP<'rtyor separated. This is because the profit is th~ outcom~ of what has been taken unjustly, so it belongs to its rightfu l owner just like the originallL'lurped prop"rty. If the usurp"r h.as built on the usurped land or has planted vegetation therein, he has to remove the building or the crop in the case the rightful own~r demands so. The Prophet (PBUH) said:
"The unjust root (planted in romeonesland without his permission) hIU no right:

(Related by At Tirmidhl and othn compilers of Hadith; At-Tirmidhl regarded it as a b.asan (good) hadith)' If so doing will negativdy affect the land, the usurper has to comp"nsate for the damage. He has also to remove th e remains of the crop orthe structure so that he may deliver the land in good condition t o its rightful owner.

The usurper has also 10 pay. compa15ation for using the land from the dalt of its usurpation until ils delivery, as he hn unright fully prewnted its owner from using ilduring that period. Morwvcr, jfthe usurper withholds the ... ,urped property until its v~lue and price al"<' ~duted, he has to pay il back according to it.. original pr ke acwrdi ng to IM $(lund opinion in Ihis regard On the olher hand. if the usurped obtt is miud with IOmdbing elK that can be dist inguished from il - liU .... hrat and lively - the usurptT has 10 ~nte what he has usurped and rrtum il.lfh .. has mixed il with $Onlething that QIUlOI be distinguished,.such as mixing wheat with wheat. he ha!;; to JnY baek the U5IIrptdobjro in meuun:orw" ighl Yet, ifhe has mixed Ihe usurped object with something of Inferior Or superior q .... lily, or with $Omdhi ng

'"

different but indi~tinguishable. the mixture is to bt sold and each one of them is \0 he given his share of the price. In this case, if Ihe value of u surpt:d property Is ~ in tb~ mixtuu tban its v;a]\K wb . n unmi~w, th~ usurper bas to compensate the owner for Ibe decreas e in its price.
Among Ih. juristic opinions in Ihis connection is Ihal whonfi taU, Ih. usurped propeny from IM usurper is financially liable for il in cas.: il is

w,nu.gW i n his ~ion.

Theu au leD examples ofpeople who may lI ke a usurped property from tbe usurper:

1. One wbo may buy the usurped l>bject from Ihe usurper Or lb. like.
2. O"c who may "'nllh. I,IJl,lrp! objt from Ihe wurpcr. 3. One 4.
On~

woo may be granlW Ih. lISurped object by lhe usurper grnli$.

who may lake possession al lhe Wl,lrped obj1 o n behalf of the l,lsurpcr such as a If\lstee or a <kputy.

5. One whc may borrow the usurped cbjec\ from the usur!"'r.
6. One wbo may usurp tbe usurped obj ect from Ihe first usu.!"' . 7. One who may bavc th. us .... ped object at his disposal, such as a speculator on behalf of It..: I,Is... rpe'.

8. Onc who may marry an approprialed bond maid from her usur per.
9. O ne whOOlihe usurper may grant. oot sell him, Ih. I,I$UrpM objm as a compensalion for something. 10.On. who may damage th ....surped object whU. having it on behalf of the ....... rper.

In all these cases, if the ~co nd party is awart that the obj ~t i. originally llSll,!",d, he becomes financially liable for it for obtaining something withoul the p"rmission of its rightful owner, However, if he is unawa.., of that, the

'"

111, SHARECROPPING AND RENTING

original usurper moulders the liability.

If the usurped prop"rty is something that i. lL'lually ""nIM, the usurper i'l

to pay comp"usation estimated according to the !,<,riod of his possrssion of the usuf!"'d property. This is becau~ utilities represent assets, so they have to
~ paid for just like real estate.

All the dealinss of a usurper OIl the usurped object afe invalid. as they are carried out without the permission ofthe rightful owner.
If the usu,!"" d"". not know Ihe owner of the usurped object and thus is un able to return it to him, he should deliver it to the ruler (or the one in
authority) to put it in its right plaa: or give it in charity on behalf of its owner. In SO doing, the ~al owner o(the usurped obj ect will get the rewa rd of charity, and the usurp(" becomes free from the guilt.

The ""urp.lion of property is not limited to taking it by force, it rather includes seizing it through unjust disputes an d f~lse oaths. Attah, Exalted b.e He, saJ'S'

consume one anolheJ":r wealth ulljwtly or S lld il f [ill bril>ery) to the rn/m in order that [they might /lid])'<Ill [to] consum a portion of the welllth of the people in ,In, whJle you /mow {it i. unlawful}." (Qur'an: Al Baqarah: IS8)

~And

do

1I0t

Allah also says;

qlndud, those who exchllnge the covenant of AIWh IInd their [own] oathsfor /I SIfUJII price will have nO share in the Ht N aftt I, and Alum will not .ptak fo them Or look Of them on the Day of RtJuruction, nor will Ht purify them; "lid they will haw a (Qur'An: Alu ' immn: 77) painful pUII,.hmnt.
H

In fact. the Divine command is s o strong and binding, and the punishment of violating it i$ $() ..-vere.
Mo'ov", the Prophet (PBUH ) ""id:

"If anyone extorts a span of land unjustly. his neck willl>e e71circled
with it down se.n earths (0 11 the Day of R.surrtionr'
He ( PBUH) also said,

"If I gaw wme ones rigllt to anoth er (mistakenly bernus. of the lallers tricky presentation of th . rnse), h (the /aft",) should n,wr tab it.jor I would ~ really giving hIm a piu , offi"': '

Endnotes

'"

LMuslim (2941) (.,.021. 2 AbO Y,fll irI hit 'MowoatT(l570) 11II-tO). l Muslim (41011) (6149[. Sce also AI-Bukhlr1 (3 198) [613Sl].nd MwJim (41 10) [6I~I . 4 AJ BnIdWI (!4491 (51 116]. S ~ M-Mw:/I~r VIII Aoh-shaot A/./GIbi"- [51J7f]. 6 Al.. TIrmidh! (1382) [31662] . nd AbO. DlwOd (3073) [JIH7-2981 . 7 AM DiW1ld (3073) [l/2971 . nd At-Tlrmidh L(1381) [1/662]. s. Iso AI Bukhbt [51211. S A1 l!ukhl rl (26eO) l5Il~1 and Muslim (44<43) [6123 11.

CHAPTER

Damage and Damages

Allah has prohibited usurping other people's prop erty and has imposed liability for whatever is damaged of the property taken without right even ifby mistake. Whoever damages another's property - and this ~ing considerable - without its ownds permission, is financially liabl~ to make up for it. Imlm AI-Muwdfaq said:
"There is no juristic disagreement in thi. regard, whe/ha the d~m ogt is intentional or nol, and whether the ant causing it i.legally accountable or nor:

Similarly. whoever cauus the damage of anothers wealth i. financially liable for it For n ample, when one opens a gate causing what is locked in to bt [rut or stokn , or when one "flfastens a container cawing what is therein 10 bt wasted and damaged, one i. li able fo r them . Likewise. if ""meant ties a riding animal in a narrow street causing a pa.s.erby to stumbl~ and be harmed or injured. he ha. to pay him for the damage c3u<ed_'This is exactly like the

Ill, SHARECROPPING AND RENTING

one who parks a car in the middle of the st rut and as a resu lt another car or a person is hit, whereby damage is caused, the one who has parked the car is liable to make up for the damage. This opinion is ba~ on the tJpdith mated by Ad-Dmqu1nl and other compil ers of H><dirh that states:
~If ont tits a riding animal in one of the pathways of the Muslims, or in one of their mllrkds, and it treads on somront (or something) by one of its front or back legs, Ont is liable for it.o '

The same ruling applies when one [eavo:!) day, a piece of wood or a stone in a pathway Or digs a hole in it, causing harm or injury 10 a passerby. In th e same way. if someone throws wakrmdon peels or lets water in the Sired, caming a pa~rby to slip and get injured, he is to make up for it. People who do all such actions are financially liable fm the ",suIting damage, u such deeds are "'garded as transg",ssion.
Unfortunatdy, the", a", many such instances of "",lessness everywhe", nowadays; too many holes or. heedlessly dug on the roads and st",elS, too many blocks and obstacles are put the",in, and too much damage is caused by that heedlessness due to the lack of control and supervision. Some people may even occupy str~elS ill! if they wrrt their own, dedicating them for th eir own u~, causing harm to tho~ passing by without caring for the sins they are committ ing in this way or the punishment that awaits them. Among the matters that incur financial liability is when one has a mad dog that assaults the passcrsby Or bites any of them. The owner of the dog is liable to make up fur the resu lting damages or injuries, for having such a dog is an act of transgression. On the other hand, if somWlle d igs a well in his co urtyard for hi s own be nefit, he is financially liable for any damage that might be caused through it; he is obliged to keep it in a condition that p~nts harming the passersby. However, ifhe leaves itw ithout such precautions,h e is deemed a tramsre.sor. Moreover. if someone owns .:attle, he is obliged to keep them away from damaging other people's nops especially at night; otherwise he is financially liable for whatever they damage. The Prophet (PBUH) judged in such a CaSe:
"The owner.< of property (i.e. cattle) should ketp it during the daytime ~nd they ~re Ii~ble far the damages Ihey (the WIll. ) cau.e during Ihe nighllime:

(Rdatro by Imlm Ahmad, Abil D;\'wild, and Ibn MAjah)'

a..r<<r 6: D:lIIugc and

o.nug'"

The owner of a domestic animal is not liable for it during the daytime, ex<;epl if he releases it clos<= to what it usually damages. lmJ.m AI-Baghawl (may Allah have mercy on him) said:

"Scholars maintain that the Owners ofgrazing cattle are no/liable for the peoplis properties they (the cattle) damage during the daytime, Howe~r, their OwnerS art' liabk for whatever they damage during the night, for it is con~ntional that the owners of gardens and orchards art! to protect them properly during the dtlytime whilt the caltleowners are to detain them during Ihe nightti""', Thus, whoever breaks this habit ha. deviated from the convention. This is in ca,e the owner of the callle is absent, but ifhe is there, he has to pay for what his cattle ha~ damaged,"'
In the Qur'1n, Allah mentions a ,tory about Prophets D~wud (David) and Sulaym~n (Solomon) and their judgment concerning a similar case of damage. Allah, Exalted ~ He <ay,:

IheyJudgtdconarning Ihe field - wkm the shU/' ofa proplt Overran it (at night), /lnd We were witneu to tlulr Judgment. And We guVt understanding of it (I.e. tlue....,/ to Solomon, and to each {ofthem/ Wegaw judgment and knowledgt (Qu rh: AIAnbiya': 78 -79)
,H

~And (mention/ D/lvld /lnd Solomon, ",h.m

Shaykhui-blim Ibn Taymiyah (may Allah have mercy on him) said:

"According to the Quran, Sulaym"n (Solomon) W(l.f dearly favored by understanding the wisdom of liability on equal tfTms. The shttp were grazing at nigM and damaged a grope orchard. Ddwlld judged that the shepherds should pay the exaclmlue of the damage, and then he estimaled the sMep and found thallheir value was equal to the compensation for the damage. Therefort', he ga"" ju4gment Ih~1 all the sheep should bt given to the owner of the orchard. HOWt'ver, Sulayman judged that the owners of the shup were liable for tile dam"ged orchMd and that they should pay ils exact equivalent in compen<atio" by cultivating the orchard until it retur". to it. original state. He d id no t also depr;"" the owners of the orchard ofthe crops th at were supposed 10 be yieldedfrom Ihe lime of damage until the time of rt'Covery. Thus, Sulaym"n gave the owners of Ihe orchard the sheep so QS to btnefitfrom them as much us the sheep owners uud 10 benefit from the orchard. In other WflrdS, they would utiliu Ihe shepherds' sheep in return for Ihe fruits Ihey mi;j.jed of Iheir orchard until the

,,.

Ill: SHARECROPPING AND RENTING

orr:hard was recultiwred by rh. sheph~rd$ (in ccmpen",/i",,). ~ Sulaym<ln . ",,{ua/ed the two gua .... ntees andjound them tqua~ and that """ an uample of the knowledge Allah favored him with and the wisdom He praised him joro'

If an animal has been led Or ridden by someone, he is liable only for whatever il damages with its front organs, such as the fordeg. or the moUlh. Yet, he is not liable fur what is damaged by the animal's hind parts ,uch as the
hind kgs, for the Prophet (PBUH) said:

"There i, no wmpensufion for whatsoever is damaged (or killed or

injured) by a /leasr's Itg,'
Sh3ykhul-lslim Ibn Taymiyah (may AUth have mercr on him) said:

"The injuries or damagN

({lUled

by animals likt rows, sheep, and

Iht like are nor to be componsated (by the owner)

if they an. off a

leash. 'Fhi, occur>. for example. when an animal break. lorut from th~ permn leading it and then causes damage. In this case. thert is no financial liability on the owner for the damage pnwided tllat the animal is not used to biting and that its owner has not been negligent in detaining it at night and ke.epi"g it dW<ly frcm market plam and people's gatherings:
Th~ same opinion is maintained by some other scholars. who state that there is no compensatinn (for the damage caused) if the animal escap"s and wanders about aimlessly without a leadu or a rider. unless it is a wild heast' ,

In addition, if wmeone is attacked by a human being or an animal, and killing then is the only way to stop them, there will be no compensation on th.t perwn in case he killeJ them. Thi., is because killing here is a mean. of selfdefense which is permis.>ible, so there is 00 liability for its consequences . Mo~over. the killing of an assaulter is intended tu prevent its harm, so one will not he regarded as a killu when one kilts it in selfdefenK. Rather, the as.>aulter itself wilt be regarded a. a .elf_murderer in this case. Sh eikh T;oqifYud-Dln said:

"A person ha!; to stop theassaulter. and Ifil cannot be stopped except by killing. it i, permi.siblefor the attacked person to, do so according 10 the unanimou5 juri5tic agreement in this regard:
Among the object. for which there is nO com~osation in ca~ of damage are musical and entertainment instrument~. crosses, wine containers. and books on misguidanc~, supc:rstition, dissolutt'ne~s and profligacy, This is implied in the

Chapter 6,
h~dilh

Da~ and

Dam.so>

rdated by Im1m Ahmad on the .. uthority of Ibn 'Umar who narrated that the Prophet (PBUH) ordered him 10 get a knife and then he (PBUH) went to the markets of Medina, wh ere there were leather containers of intoxicants brought from Ash -SMm', Ibn . Umar adde<l that those leather conta iners of win. were torn by knives in the p,."encr of the Prophet (PBUH) who commanded his Companions to do the same ' . This hadith proves the commendableness of destroying such immoral things withou t anything in compensat ion. Still, this should be carried out under the control and supervision of authorities so as 10 guarantee public interests and prevent any evil or corruption resulting.

Endnotes
I Ad.Dir.o'lu1nl (33S2) [31!27) .nd AI-B.yhaql (17693) (8/597 ]. 2 AM Dlw<ld (3570) [3/530) . Ibn Mij. h (2HZ) [3/HHjand Ahm.d (HSSt) 3 Su the f<><>tnote in 'MRQ"'Ii AIMurl>i (SIU9]. 4 See lhe footnole in "A,.Rawil A/Mutioi' (S/~20]. 5 AIBukhir! (1499) . nd MwJim ( 17l0). 6 See the fooln<m in "M-Rowd A/Mw,bi ' " [SI412). 7 Seeo "'<'IAkhbdr ,<,,- 'lI"'iyan ",in ,<,1./kh,iyolrJI AI-fi~hiyyaJ." [p. 420) .
9 A,hrnad (6165)
( 5/~36] .

8 AshSh1m,The Levant; 11.. region ~ring Syria, Lebanon, Jordan, .nd Pal."ine.

121 132 mJ.

CHAPTER

Trusts
According to the SJulrl'ah (lsJamic Law), entrustment is ckpulingsomeone for the vulunlMy ~rvaliQn of something. comm illing it inlO his care.. "Trust" refers to the pmpcrt y Ih( lruslt<' is entrust! witlt.Afe~ng without
reco m~ lIK .

~ conditions

of the val id ity of entrustment is the salm as th.l of deputa-

tion. namely maturity. sanity. and puberty, for entrustment iI dq>utation for the purpoK of w ekeepi ng.

I1 is desirable (o r one to accept 1 be entrusted with something ifhe krlOWli 0 tllmKlf to be hon.esl enough and capable of kpi ng trusts. This is beaux
safekuping trusts has a S",,,I rrward; the Prophrt (PBU H ) $;lid:

.... . And Allah ~Ips 11 ~rwn $Cllong ... the ptrson he/ps his (MUJlim) brolhu.

However. ifone is nOl SlIt't that he iscap.ble of keeping Iru5lS, it is detestabl .. for him to a"cpt th~m.

178

Il l: SHARECROI'I'JNG AND RENTING

Among the roli ngll on entrustment is that if the tTll$l: i. damaged whik Ming in the care ofthe tr ustee who has not misused It, he wiU not M financially li~b le for it. Thi. is ~cause a IrU$t is regarded as th e trustee', own property, so he does not make up for it if it is damaged, provided he does not abuse il. Ibn M1jah related I bad/rh ' - wh ich has a rather weak chain of transmitten - st ating that the Prophet (PBUH ) said:

"If""" 11 trusud with St)mething, thm ht is "01 /iQble for c:ompt" SIltion (ifit isdQmugedr Ad-D!raqUlnl rdatfil tile Hme With ' with the following wording:

"There ;s no ,0"'~nJQtion to be paid 1>, <In honest "",row...,. (if the I1orrowed objt i. dQm~ged), Qnd the", is no compenSQtion tQ be p~id by ~n hon u ltruslee (if the trusted object js damaged)."
In another nanltion: - There il no rompensaliofl to be poid by the trustee (if the trusled

object is dDm<lged)."
A t~"'" kreps I trust voluntarily. So. if ~p~ are liable for the troSI$ they her, they will ~frain front safekeepi ng one "nOlher's trusts, which will negatively affect the ir dealings and hamper their Inte",.u. Howe~r, he who misuses a trust or neglects keeping it properly i. liable 10 make up for it in case it is damaged, for he it regarded as a damager of anoth er's property. Another ruling on entrustm .. nt is that the trustee has to secure tbe trun juM as he secura his own J'f'OP"rty. for Allah, Exalted ~ He. has cOfflmanded w to render truMS $aft to Ihrir owners. Allah Soars: "'lndu d. All,," fommQ,.ds"., .. 1 rt ,.d...,. I",sll '" whom they 0 ",., d ..t .. (Qurln: An- NilJo': 58) Trusts canno t be ~ndered safe to their owners without pr.-serving them, and wh~ n the t ru~tee accepts th t trust, he has obligal~d himself to k~ it, SO he hu to fulfill hisool18ation. If the trust i be'51, the tnL'it~ is to fodder it, but ifhe does not supply it with fodder without the permission ofits owner. nu!ing i\ harm. the trustet' becomes l...bJ .. to mm up fo r il. This is because fodd..nng animals is an obligation, in addition 1 the tru5l""". obligation to t.ue ~ of Ihe enlrusted 0 animal. Thus, the lrultet' is <Qnsid .. red sinful jf he stops providing ;1 with food and water until it dies. Generally, om shoul d provide such anim.a4 with fodder and wattr for the sake of Allah, Exal!ed be Ht, as thelt liVfi have inviolabili ty.

It ig p"rmi.. ibl~ for th~ trugt~e to leave the trust with whomever he usually

entrusts his own prop"rty, such as his wife, his slave, his treasurer, or his servant In this case, if the trust is damaged while ~ing in the care of anyone of them without the latt.er being negligent or transgressing, the tnlstee is not liable to make up for it. Tb;., is b.caus.. it is p" rmissibl~ for a trust~ to k~p the trust by himself or by deputing oomeQn.e trustworthy to ku p it on his behalf. Likewise, if the trustee commits the trust to someone who already p=rves the prop"rty of its owner honestly, he (the original trust~) bt.:ome~ free from the obligation of safek~ping it, as the social convention g""s, However, if the trust~ delivers it to a person who is a stranger to him and to the owner of the trust, he bNom.. liabl e for compensation in case it is damagw. This is hecaus.. he ig not to entrust it with anyon e else unl ..s there is a compelling excuse. For example, if the trustee is breathing his last, or ifhe has suddenly (0 travel and fears that th e trust might get damaged if he takes it with him, and there is no one else but a stranger to entrust it with, there is no sin on him in such cases.!n addition, he will not be liable for it in ca ... it is damaged. Generally, if the trustee is worriW about the trust, or irhe wants to travel, he has to render the trust to its owner or his deputy. If he d"". not find any of the two, he is to take it with him on his journey if thi s is the safest way. If not, he is to deliver it to the ruler (or the on e in authority) for the latter is a substitute for the owner in his absence. Iflhe trustee cannot entrust it with the ruler (or th~ one in authority), he is to entrust it with a trustworthy p"rson. To illustrate, when th e Prophet (PBUH) wanted to immigrate to Medina, he committed the trusts he had to Umm Ayman (may Allah ~ pleased with her). and commanded' Ali Ibn Ab" I.ilib to return trn:.m to th~ir owners '. Similarly, iflh. lrusl~e is dying. he has to rendu th~ trust. 10 their owne.., and ifhe d~ not find them, he is to del iver them 10 th~ ruler (or the one in authority) or to a trustworthy p"TSon. Abusing a Irl1<1 obligate. th~ trustee to compensate for it in ca", it is damaged. For example. on~ maybe ~ntrusted with a riding animal but rides it unnecessarily. ~ntIU.ted with. garm ent but wears it for a purpose othu than pr.. ~rvi ng it from dothes moth, or entrusted with oome money in a coin pur.., but takes th~ money out of it Or unf.stens th~ pur..,. In such cases, th~ trustee is Hable for compensation if lhe trust is damagw, as he transgresses others' property in 00 doing.

.
1M trustu is supposW 10
~

li lt SHARECRO PPING AND RENTING

lit an honest JOO trustworthy I't'l'SOn. 50 if~

SI)1Ilhat

has m>lkrnllh( ITU5I 10 ils owroer or to someone on h is bfflalf, Moreovu, if ,t... lru$let' claims that In., trust is tbmagro withoot misusing it and he Sw" ..... an o;Ilh, he ;slo be bdi"'vnI. This is beaollK a !tUII is supposed to be trustworthy person. whose a!tribute is dtrivNi from "tTUSt". Allah, Exaltw be He, says:
he is 1 be 0
bel~

Allah romllllmd. lire dut ...-

~l"dud,

YOII

to r,,,der Irum /0 whom they (Qur'An: An-Ni sa', 58)

The origi nal rul ing i. that. trust"e ;, trustworthy and in nocent until proven 10 be lying. O n the other hand. if tht truSlee claim. lhat Ihe trust is damaged due 10 an accident like firt, his claim is not 1 be accept..! until he 0 bringst'Yidence Ihat such an accident has ha~ned.
Finally, if the owner of the trust uks tM lru$let' 10 rnKkr il lo hin. bui lt... trustu delays il for no 6CllK until it is damaged, M is lil1b1e 10 compensate: for

;1. becaUK hf has oommined SOIlldhing prohibiled. nameiy " 'ilhholding Ihf (rllSl from ils _ r . And. Allah knows be$1.

Endnolcs
I Muslim (2699). 2 Ibn M dja~ (2401) [111381. J Ad[)fInoqutni (2939) [31361. "A.dDil'aqUlnl (J9J8) [3136[. 5 A.11\a)'haql ((26%) [1>'472).

AN"D

CHAPTER

Reclamation of Wastelands
fuqihs' (may Allah have mercy on them) define a wasteland .., a land
which is not reserved for utilities o r po.<s."""d by a legally prote<:tcd owner. This definition excludes two kinds of lands: I Privale land, a land o wned bya 1cgallyprotccted Musl im ordisbclievcr, wh~her he bcught it. took it as a gift. or Ihe like_

2 Public land: a land restrved or spcd fl ed fo r th e benefit of private prop"rties. such as roads, yards, and watercoul"SCS, or reserved for
th e utility of th e r<:sidtnl< ouch as cemeterie... garbage dumps, ... as

,..,..,rved for p"rforming the praye r. of the Two Feasts ("lds), ploces of firewood. and pastures_ All such kinds of land cannot be legally pos~s.ed by means of ,."darnalion.
If the land which is not
pos~

by any legally

prot~ted

owner is

reclaimed by so meone, it b<:longs to him due to th e following brulith narrate<! by J~bir (may AII. h ~ pl.,...'\ed with him) in which the Prophet (PBUH ) .... id:

1'1 RECU.MJr.ll0N OF WASITlANDS AND ...

"If Im)'One brings a OONl'."n land into OIltiVlltion, Ih~n it belongs

to him.~'
(Rdatffi by Imim Ahmad, and AtTirmidhi who deemffi it alllhib (authentic) badllh) There ;ore other IJ,ldlrhl having the same meaning; some of them are recorded in SahIb AI-&khArl (AI- BukhArfs Authmtie Book of lj,3dith).

All foqlm agree that the wastelands a n b<e possased by tOOse who rtclaim thmI, exapt tilt wasteland! of AJHaram (the Sanctuary of Mecca)
and the Ira. of ' Araf.h (Mount), SO as oot to narrow the piKes lipccifll for the pilgrims to ~rfurm the ritWlls of Hajj or occupy a pla specified for proplc. However,f~qll,s differ in determini ng the conditio ns requ ired to makt valid the reclamation of a wren or ownerlns rand.

In

A Wasteland ca n be Legally Possessed in Some Ways

Fint: When a IXrson liurrounds a wastdwd with an illVl11nenbk wall, il becomes his, for the propbet (PBUH) N.id:

"If all)'One SIIm1'HloU a "HId (i.e. a wa$telil"d)

belongs 10 him:'

with a WIlII, fhen it

{Rdatcd by Im~m Ahmad and Aba [);IwOd on the authority of jibir, and Ibnul-/irOd dH_d it a ~b (authentic) juldlth} There is an~her badit/. narrated on IN aUlhoriryofSamurab carrying the same meaning. lllIting that when :I. ~n $Urrounds a barrtn or ownmess land with a wall, it Mcomes h i$, provided that such:l. wall is strong wd impregnable enough. H~~r, if a pnwn jU$\ pull Wlnes or earth .round a wasteland. or surrounds it with a low fen or a small waU that d<M:s not prevent intruders. or digs a trench around il, the land still does not belong 10 him, yet he is "'ore e ntitlt<! to recl.im it. Moreo~r, it is impermissible for one to $Cll a WlIsttland unless One ha.s fully redaimed 1 1.

Second: If a person d ip a wdJ in a wasleland unt il he

water, 0 then il bdongs 1 h im a.s he ha." rrdaimed il. Howew.r, if one digs a wdl with(MJt gming any water, the wa>tcJ.nd does not belong to him , though he is still more entitled 10 redaim and own it .ince h. has started ils rc.;l.mal;on.

~hes

185

Third: If a person supplies a wasteland with wat~r from a well or riv~r, h~ thw has ,..,daimffi it, "" providing W<lt~r is mo,.., useful to the land than surrounding it with a walL Fourth, If there i. water that overflows into a wasteland ~nd causes it to be. infertile, one who puvents or drain. such waler is considered 10 he ...,claiming Ihe wasleland, and Ihus il be<:omes his. This is because Ihis kind of redamation is more useful to the land Ihan surrounding it wilh a wall_ which makes one owns;1 according to the aforementioned b.ad/III. Some scholars maintain that there is nO general rule to determin~ the cases in which a wasteland is deemed reclaimed, and that a Muslim must adh ..e 10 the common convention in this regard. What people conventionally comider to be ,..,clarnation of a wasteland entitles one who does it to possess the land. This is the opinion maintained by a group of the Hanbali scholars and otheu. The ShMi '~h (Islamk Law) states as a generil rule that a wasteland is owned by wh""""r =Iaims it, without elaboration . So, a Muslim must ,..,fer to the common convention to fmd out what is detmed redamation and whM is not. The Imlm of Muslims (the ruler or the one in authority) is permitted to grant the wasteland towh""ver TNiaims it, for the Prophel (PBUH) granted th~ Valley of A}-'Aqiq (in Mo:dina) to BilM Ibnul_H~rith' and a land in Hadramawt to W1'il Ibn H ujr '. The Prophet (PBUH) also granted fiefs 10 'Umar Ibnul-Khatt;\b,' - Uthmln Ibn . Aff~n,' and a group of Companions ' (may Allan be pleased with them an). St ill. the one who i. granted a wasteland as a fief does not own it until he rulaims it so as to hecome worthier Ihan others to possess it. Thus, if the one granted the wasteland reclaims it , then it belongs to him. Yd. if he cannot. the Im~m is permiued to re-take the w~steland and grant it 10 somwne else ~b1c to redaim it, for 'Umn IbnulKhan~b (may Allah he pleased with him) look back the fiefs from those who could not reclaim them'. Likewise, if one takes possession of a game animal, firewood or the like before others do. one be<:omes more entitled to possess it, provided that he get ~ it first. If a nalUral watercourse, such as tho.t of a river or a valley. passes through people's lands, it is permissible for those by whose land. the water pas.es firO! to irrigale their lan.u wilhholding water from otheu until it gathers and its height becomes ~qual to that of one" ankles. Then. they should allow it 10 flow to those next to them, and SO on and 50 forth. The Proph~t (PBUH) said to Zubayr on a ,i.nilar Q(casion:

IV RECIAMATIONOFWASTEtANDSAND...

"Cl Zubayr! [rrigMe (your land) and Ihen wilhhold the waler until il reaches th e walls between the pits round the trees.""
(Related by AI-BukhAri and Muslim) . Abdur-Raz~q related that Ma ' mar reported that Az_Zuhrl said:

"When we considered the Prophets wo.ru. :.. then withhold the waler until il reaches the walls bttween the pits round the trees,' we found out that the height (meant in the h<ldith) equals thm of ond two ankles.""
Thus, they measured the amount of water described in the iladith and found out that it waS as high as the ankles; then they made this amount l measurement to determine the target amount of water after which everyone should allow water to now to his ncighbors to irrigate from it successively. 'Amr lbn Shu' ayb narrated that the Prophd (PBUH) .aid about the torrents ofMahziir (a well -known valley in Medina):
'11 (water) should bt withheld until its height becomes equal to that

of OntS ankles, then let the water descend from the higher /and n""t to which water p;l,stS first to the lower (/and).""
(Related by AM
D~wUd

and other compileu of IiIldfth)

If the water is owned by some landown ers, it should be divided among ilS owners according to their proptrties, and each owner is p"rmitted to do whatever he likes to hi' water .hare. The Imlm of Muslims (the ruler or the one in authority) has the right to protect the pasture =erved for grazing the c8ttle belonging to the Muslims' Public Treasury, such as the horses ofjihtld (fighting in the Cause of Allah) and the camels of charity, as long as tbis does not narrow the public areas. rbn . Vmar (may Allab be pleased with him) natr8ted that the Prophet (PBUH) sptdfi ed 8 place called An-Naqi" a. a protected area for (grazing) the horses of Muslims ". So, as long as he d""s not narrow the Muslims' public places and it i. needed. it is permissible for the Im1m to protect the gras,;; grown in a wasteland for the grazin~ of the camels of charity, the horse. of Muslim fighters, the cattle ofjizyah, and the straying and wandering caute.

187

Endnotes
I F""ih, A ochol.,. ofl.lamit Juril pN<knce. 2 Ahrnad (1 4205) [)I)04] .nd At-T1rmidh i (13S)) [31663] . A . imil. r l1.adilh """. nlmoled by Said loo b y d Ind ",I.led by AbU Dlwlld (30 7 )) (31291] and AI_ T irmidhT (1382 ) [3/662]. ) ~ (20003 ""1.2) [:111 1] w Ab<! DIi....;;;.;! ",'-cl similar /tPdf/h ftam SamunII [JI298). AI-Bayhllql t 111124) 161' . .. wU ",Ioied in _ her wordi"ll by AbU Dh"ild (106 1) ..46]

(Jom

[31291Jand AJ. BayhlqI (11797) [cn..oj. , Abo} DiwUd (JMS) [31291] WKI 11.1-T1nnidhl ( 1381) [1I66!1].
6 AI. S.yh&ql (20394) [ 1012 12J. 7 AI. B.yh.aqi ( 11 795) [6.1239]. 8 AI-alyhaqi [61238] . 9 A.he took bad: the fief of the Viile)' o f AI . Aqiq fmm Bi lll lbnulttlrith; A I-BIoyhaql ( 11824) [6/246]. 10 AIOuthM (2JS9) [:1144] and M...slim (606S) l1li 1071. 11 AI-&khiri (SI491 in !be Iut pen or.... /pdiJIt ..... (23 62 ~ 12 Ab<! Di ...1ld (36l9) [41361 and lbn Mljlh (248 1Ill/I SI J. I ) AIS.y"-/i (1 18011) 16I24 l ]1Ild ill orip. was ...wl'd in AI-Bukhlrl (2370) 1 :IIS6I. 11 Juyoh: A tribule or I laX ""Iuired ofnon-M usli ..... jivine iun j.lI.mic Slal<' """",pI;n, lhem from military ser\' ice ar.d .<uid in, ,hem \0 It.. proIta;o., of It.. Islamic Slate. Concurrenlly. ZaUh; . 001 tak... from them. bein!! . " obliJiltiOll "" Iy upon M uslims.

s..:

CHAPTER

Job Wages Ua 'alah)

According to the Sha'; ' all (Islamic Law), job wage!) refer to the wage given to someone for som e help or work he does . In other words, they ""fer 10 the fixed amount of money given by someone to another for the lattds perform"""" of

a certain task, such as (reeling a wall.

The permiMihility of job wages i.o; demonstratro in the Qur'An; Allah., Exalted be H e. states in the Qurln that Ywuf (jo"",ph) said:
~.. a"dfor he .. /'" products it;, {the reward ofJ a c"md'lood, ,,,,d 1 "In re.JXmSiblefor it,N (Qur'an: Yusuf: 72)

The mu ning is that whoever report. about the thief who has stolen th e

measure of the king will get a camel's load as a joo wag<'. Thu .. tilt afortsaid
Qur'anic ve~ implies the pe,mis.sibility of giving wages. Its p"'missibility is also statffl in the SUMMah (Prophdic Tradition) through the had/lh about the stung pe.ron narnltW on the authority of Ab;, Sa'!d in th. Two Sahib.' and in oth.r boobof Htldltlr._Abil Sa 'ld AI-Khudrl (may All ah be pleased with him) narral~d,

IV RECU.MATION Of WASITU.NDS AND ...

Some of the Prophets Companions wmt on a journey until they reached some of the Arab tribes (at night). They asked the latter to treat Ihem as their guests hut they refused. The chief of that tribe was then bit/en by a snake (Dr stung by a scorpiDn) and they (his people) tried their best to cure him but in yain. They went to Ihe group of the Companions and asked whether they had a treatment or not. One of th em replied, 'Yes, by Allah! I can recite a reUgiow incantation for cure (ruqyah), bUI as you haye refused 10 accept w 11$ your gue5ts, I will nQI Te~jte the rtligiou. incantation for you unless you fix for uS som e wages for it.' They agreed to pay them a flock of shup. 50 he (that Companion) went with them and kept blowing and reciting Ihe Sura of AI-F<ltibah (the Opming Chapler oflhe Quriln)owr the stung man who !>ecame all right as ifhe was releasedfmm a chain (j.e. showing no signs of sickness). Thereupon, they paid Ihem (lhe Companions) the wage Ihey agreed to pay. After thaI, they (the Companions) came 10 the Prophet (PBUH) and narrated the whole story to him. upon which he (PBUH) said, 'You have done Ihe righl thing. Diyide it (the wtige) among yourselnJ and assign a siulre for me as wdl.' '"
[fthe person performs the work for which a certain wage is spified, then hedeserves it, fQr the agroement i, validated by the p erformam:e of the specified task. If a group of W{)rkers perfQrms the task, the wage is to be equally divided amQng them, for they participate in performing the same job for which the specified wage is pud. Whoev~r wQrk, when no wage is stipulat~d does not deserve anything, a~ it is con$id~red a task performed without the permission of the employer, and thus the worhr doe, not deserve any wage or reward. HQwever, if the wage is stipulated after he has started the work, the worker deserves only the appropriate amount of the wage according tQ the work done after th e stipulation of the wage. Giving wages to a worhr is a permiSSible agreement. Therofore, both parties, the worker and the employer, are entitled tQ oancel it. If the worker cancels the agreement, he deserves no wage or reward, for he thus drops his own right. However, if the employer cancels the agrttment after the WQrker .tart., the worker deserves an appropriate portion of the wage accoming to what he has alroady perfonned, for which compensation is due. Giving wages V4 'd1ah} " difTeront frQm hiring peQple', service. Uj"rahj in some aspects, among them are the fQllQwing:

19J

In job wa~, it is not I prerequisite for the validity of the agr~ment to 5pedfy accurately the task for the womr to perform in return for th~ wag~. Yet, specifying the s~rvice i5 a cond ition for the validity of hiring (ij<lmhl . It i5 not a condition for the validity of wages 10 specify a certain period for the task to be done in Il:turn for the wage, unlike hiring whose validity stipulates that the period of wort. must be $pifitd..
It is penniwblr in job wages to stipulal:e boIh the task and the period during whkll this wit is 1 be pe1 formw. For H~mplc. onc an say, 0 "Whot"YCT sews Ihis garment for me in one day deserves such and nlCh 1LI wages". In such a casc.lftheworker sews the garment in one day,he deserves Ihe specified wage; otherwise, he de5erves nothing. Howevcr, in hiring. il is impermissible for the employer 10 ..ipulate both the service and the t ime during which it is to be done (i.c. the worker receives his wages onCc hc performs his won).

In cue ofjob wages. one is not obliged to perform the tu!<. but in hiring. the him! person is obIigai to perform the .servin.

I1 is not a condition for the validity o f giving job wages to

~ify

certain person 10 perform the said task. Howevcr, In hiring, specifying th e worker is a conditio n for ils validity. Giving wages is a perm iloSible agreement which each of the two panics can cancel witho ut the perm ission of the other. Yet, hiring a perwn's ..,rvice is I binding Iglftmmt that neither of the parties can caned unless the other agTffS. filqlhs maintain thatw~rperforms.lask roranotberwithout stipulating a wa~ o. taking the employer's permission deserves nothing as wages. This iIi because he th\l$ performs a lask "fitOO\lt stip\l]aling compensation, so he dtstrvel nothing in compensation, and he cannot ~n;oin the employ~r 10 do $Omething the latter is not obliged to do. However. theR an: two exceptions in this case:

First: If", worlw-. such as a broker. "' porter or the like, ha. prepared
hinucif to do "' certain SoCrna for a nruin KWard M ~, when he performs the job. providrd he has already laken the employers pcr.mission, he daervn the $J'ifted wage, as it Is I conventional practice. Yet, he who has not already prctnll:d himself to do the said strvKe destrYr1 nothing as a Rward or wage, cvcn if he has wn permitted to do 11, un ltss thue h~s betn", per viout condition.

'"

IV ItEO.AMJ\TION OF WASlBANDS AN D_.

Second: If someone rescue, another's p~rty from damage or dtslruction, th e furmtr ~es an appropriatc WI~ for- this K'rvi<;e,
even if the
OWrI('T

ha, not

si""" him ~rmis.slon

to do it . This may

happen in cues such u rescuing onc's properly from .inking in the

sa, saving it from fi~, or protecting il from imminent danger. Such

a rescuer des.erves an appropriate w:l.ge, as lit is CQllcemW about others' properlies and kn on saving them from damage.. Thtldo~. giving him. wag.r h(n urges him, as _11 as OIh.ers. IO maintain such a good ~ IWJIdy rncuing othni properties from dmaagc and destruction.

Sh.ykhlll-bllm Tbn ..,....Iyah (may Allah have:

~WhO<' .... r

~rcy on

him) said:

",J1:uu dMlhtTS pr<J~rty from destrU{;/jo" and re/urns it safe (to the owner) dt:$tr ....s an appropriate WIIgt. r ...." if/he,., is 110 prtvious stip"'laliQn. lIa:om;ng to lilt prtpo"lkn, ' of the two ... opinioru in tlris rqard, 41 wdJ a.I the opinion nulinlainM by Im<lm

Ahmwl "Old oIher compilut of J:/;ldilh."

Mol'WYU. the greal ImAm Ibnul-Qayyim (IIUIY Allah ha"" mercy on him) said:
~lf a puson d~ something ;.. j(}.vor ofsomtone's proJ>tt"ty wir/t"ut r/t~ DWntrs pamiss;on to tndmr him..,/f to th~ PWn" of tht properly, (If if ht dotS it 10 proltcllM latltrJ proprrty and 10 prtUn>t it from darnagt (]I' kw, it ~ pamwlblt for him, Iht rESCuer, to ad: for a CDmpmsalory ""'gt for h~ Jt11'ict; th~ is fM opinion maiJ1taintd also by Imdm

I\hmaJ on mon, oa:.uions..

Endnotes
I The Two s.b.1/is: The '!'wo AUlhtnllc IIooiot< of AIllukhtrl l nd Muslim 2 Ai Bukh.i.r1 (2216) [4/511 [ . nd Muslim (5699) 17/4101.

CHAPTER

Finding Lost Objects (Luqatah)

Luqatah ufers 1 any 10S1 property. exclud ing animals, found by ..,m~on~. 0
[slam, the True Religion, enjoins the protection, safekeeping, and taking care

of one's fellow Musli ms' properties, even in case of lost-and-found pTOp"rties.

A loot property is surely onc of the following th ree kinds,

1- An insignificant object: A lost property can ~ an arlide 1hal people do not usually Cll''' about, such as a whip, a loaf of brc:ad, a fruit, a stick and the lil,:;". If someone finds such a lost object, il is permissible for him to take it and mm use of it at once witho ut advertising having found it. To illustrate, JAbir (may Allah be pleased with him) narrated: "The M essenger of Allah (PBUl-f) gaw .. s permission concerning stick, ropes. whips. o. s ..,hljk thing., whj,h a man of 'U may (accidentally) find, that one may benefitfmm them:'

(Related by AbO OawOd)

".

IV REClAMATION OF WASTELANDS AND .. ,

2- Animals safe from small predators: Th~ "",ond kind of lwt properties is animal. that Can dofend them,dve. against small wild ~ by mean~ of their big si"" such as came]., horse., cows, or mules, or by means of flying such as birds, or by means of running rast such as antelopes, or by using their canine tfflh such ... chedahs. It is prohibited to pick up such kinds of lost animals and tal<. them on the prtlexl that they a~ lo.st properties; such animals cannOl be posse~d when found. even if the finder advertises having

found them. When the man who found a lost camd asked the Prophet (PBUH)
what t<;l do, h. {PBUH) replied:
(reser~ojr); it can go until jlJ ownerfinds

"It is none of your COnCern. It has its feet and ifS wattr contai"..,.on drinking waler and eating (leaves o/J trees it."'

(Related by AJ Bukh~r1 and Muslim) Mort over. 'Umar IbnulKha1l1b (may Allah be pleased with him) said:

Who.yer takes a los/ allimal (that he finds) is considered IV haYI gone astray..'
According to the aforementioned aadith. the Prophet (PBUH) enjoins Muslims to lean such a lost animal alone to reach water. and eat (the leaves) of tr....s until its owner finds it The same ruling applies to hig objects and tools such as large pots, wooden articles, iron articles, and all such large things that can hardly be INt or moved from their places. Picking up such large objects and taking them as lost properties is prohibited; it is tven more entitled to be prohibited than the aforesaid kind oflnst animals. 3- Money, be1ongings, and animals menaced by small predators, The third kind of lost articles is properties such as money. belongings, and animals that cannot defend themselvCli against small wild beasts.. such as sheep, weaned camels, and calve. It i. pe rmi ..ible forthe person who is confident of hi. own trustworthiness to pick up and k""p such kinds of lost articles. which fall under three categories: A) Lawfully edible animals (sllcb as weaned camels, ewes, and hens): If a person finds such a lost animal, he is permitted to use it in Olle of the following three way. that benefit. it. original owner most: I He can eat it and thus owes its price to its owner. 2- He ooan sell it and keep its price to give it to its OWner when he appears and the finder i. certain that he is the rtal owner.

J . H t can knp il, withOUt possn.sing it, provide il with food and tm like 11 his own o:~nse, and then gel back what ~ has spent from
its owner when hoe appears to rtclaim it. When the Prophet (PBUH)

'"

was asked about the ruling on finding a lost and ownerleSi ewe, he
(PBUH) replied:

"Trlh il,for it is either for you.for )'Our Urolhtr (Le..foronathn- jdJow who may find it), orftw tM woJf'
(Related by AIBlllkhltt Ind Muslim)

Thil; btuiilh means Ihit the k>!it, ownorla.s ewc was weak and liable 10 puish. So, it would be better 10 be taken by the man wbo found il, for ifhe would no t lakt it someone the would do; otherwise the wolf would eat it. CommentIng on this hadlth. lbnul-Qayyim said:

"This aadlth implies tht ~rmilsibility of picking up /Hld taking" loll map. and thlll if tM own" of" /rut "'...., dou nO( ",,,,,. to clai,.. it, i/ witl bdong 10 lite ON who hllS found it. Thus, he aln eat il tuUl owo! ifs pric" 10 ;IS ownt>; or stlE it rmd Ir.~ 1 prke to givr to its _nt, 1$ whtn he ap~tlrs, or Icnp it and fud it al hl$ own n~n"'. Sdre>ltll'$ unan;mou.s!y agrtl that its owner hllS the right 10 lab it back if he COmt.i beforr it is taltn by tht Ont who has fo und 11."

Bj Perisbables: When th e found obje<:t i~ liable to bt,ome rolten, such as Watermelon and fruit, one who finw il should do what best benefil' the owner; IM finder can eat il and pay its price 10 Ihe owner, or sell it and keep its price 10 givt 10 IM owner when he mMI him.
Cl All kinds of propmiQ adudln8 A and B (Judl as mo.oey and ulwsUsj: If onc finds luch ,Iosl article, one mM keep it with him as I trust and adverti~ having found it. H()Wever, noone il p!'rmittcd to pid: up . ny lost arti,!. and kp it unl", he i$ confKknt ofhiJ own trustworthiness, and able to define its descriplion when necesoary. To Illustrate, lay<! [bn Kh1lid A1- Jun.n! ('""Y Allah be pleased with him) nurated: it man ~d the Prophtl (PBUH) about the ruling On finding lost gold or sill'ff (i.e. mOMY) and lit (PBUH) rtpliM, 'R~mber the dorription of it$ eonlolliMT (i.e. the p~ or the like) oIInd lilt Siring il U lied with, (Jnd mukt public announcement oIIooUI It for One )'U'T. Then. if no ont identifia it, you (oIIn utilize it &ut)'Ou haw toll /cup it lIS a Irust, "nd if its owner shows up (to rtr/aim it) at any lime afttrwards.

'"

IV RECLO.MATION OF IlIASTEu.NOS AND ...

giw ;1/0 him: 11Itl1. IM man ashd him II/JoU' fM ruling"" find;"8 a 10.1 sh~tp. Ire (PBUH) rtp/itd, 'Tak~ il.for Ills titk" fOT you,jiK your brother (i.e. fo r Qllorhu ft lww who "lily find it), Or for the wrJ/f After that, he (PBUH) was asked about the 11'11'118 on finding a 10$/ ~lImel. and ht replied, 'It js lI"n e ofyour ,,,nurn. It has itJ fu r and its watu mla;n,. (rtJtrVOir); 11 (an go 0" drinking ..al .... " nd ,,"till8 (Icava of) /raj ,,"Iil ils a_a finds il.'
(Related by AlBukhirl and Muslim)

By ... ying. ... mak, public Q """unum, ,,' ("bou' it) /or one ~r" .,
the Prophet (PBUH) wanu the person who picks up such a lost property (gold or silve r; money) to announce the description of the 1 article whe~er people assemble such is marketplace . in front 011 ofmo.sques, .nd in mffiings and gatherings, ror one year. During the first week, such a pe'DO/'I is required 1 make public annouom(nt 0 about tM lost article ~y, as it is mo~ liu ly that its owner will k snrming for it to clai m it during the fint wk.. Alia tru. ","k Is OYer, tM finder Is to follow the common con~ntion in his making a public announmem about it. The aforesaid flpdl'lr ind icates the obligation of making a public anOOllncement .bout finding a 10" article. The Prophet'l words, ' RmU'mbtr Iht dQcription of its ,orltairltr (i.e. tht purse or tht like) arid the string it is lied with.- indicate that it i$ obligatory upon the find" to know the description of the found object. Thus, wMn il$ own .... wmes and describes it corrt1y, il mUSI be ~n b.ck to him. However, if I ~non giYCS a faL d escription of K a L artkle, it is impnmi.~s"blo: 10 gi~ il lO him. When the Prophet ost ( P 8 U H) 5aid, ". .. 11un. if no one itknllfiu 11, )'(111 CQII utilize it: this implies that .fler o~ ~ar. the 1051 artk le belongs 10 l he frnder, after making the ntcnsary public an oounment about having found 11. However, the finder Ihould not mau uSt of it unless he knows ill description, IU container (or pune). tying material. amount, kind, and such distinctive descriptions. If il$ owner COmes after one year and describes il correctly, it must k gi~n b.ad: to him a~ the Prophel (PBUH) said, .. and if ils OWIIer shows lip (to rrc/Qim it) at any 'imt aftm ."mh , gillfl i, W /rim. In the lighl of the ~, th-e rulings on finding loll objecu can k summariucl aa follows:

First! If . prrson finds a lost objecl. M is nOI prnnined to pick ;1 up and keep ;t unle$5 he is confident of his own tru$tworthinew,.nd able to announce hailing found it publidy 50 a~ to find its owner.

O up, 3, Fioding ,-"" Ob;..:" (L"f't;<h )

197

Accordingly, if one doe. not trust on~sdfto take th~ prop"r m~asures for th e found object, it is imp"nnis,ible for one to pick up and kttp it; if one does, on e is legally ~ruiderNI a usur!"', for subjecting others' pro!",rties to 10... Second: Bdou taking a lost artide, its finder must know its container, tying material, amount, kind, and such descriptions as enjoined by the Prophet (PBlJH) in the afoumemioDed b.adllh, and the Prophet's commands indicate obligation. The word ~container indudes any envelope, purse, hag, piece of doth, or the like, in whi~h the found obj ect is wOlp!"'d and tied_ Thkd: It is obligatory upon the p"rson who picks up a lost anicle to make publi~ announcement about it for one year. During the first week, such a p"rsDn is uquired to make p ublic announce ments about it everyday, and then h e is to follow the common convention in his making public announcement about it. He can &ay in his public announcements something like, "Has anyone lost anything?"; or anything of th e kind. Such an announcement should be made in plac.. where: people a~ble, such a.:; marketpb.ce. and in front of mosques after !",rforming congregational prayeu. Howevl:r, it is prohibited to make such an announcement (of finding a lost object) inside the mosque, for mosques are not built for thoot. The Prophet (PBUH) said:

"If anyone hears a man in Ihe masque asking aboul samelhing It, Itm wsl, It, shauld say 10 him, 'May Allah nol restart: il to rou: for the mosques au not buill for Iltal."'
Fourth: If the claimant o f a lost artide describes it corrc:ctly, it i. obligatory upon the fmdn to giv~ it to him without a5king for any more proof or an oath a5 enjoined by the Prophet (PBUH). Mouover, adaimant'scorn:ct d escription of a lost artide substitutes any further proof or oath, Rather, his correct description is more rdiable and crc:dible than a proof nr an natl,_ Also, the finder of a lost artide must give back to its owner a n )' di r~ ~t or ind;""t profits he obtain~ through the artide. However, if the daimant cannot give the right d escription of the artide, it must not be given to him as it i. considered a trust in the custody of the finder. Therefore, it i. impermissible for the finder to give the artid~ to someon e who cannot prove that he is ih owner.

,,.

IV RECU-MIITION OF WASTELANDS AND ...

Fifth: if the Owner of the lost artide does not come to claim it during thenne year of the public ano(tUncement made brlhe finder. it becomes the latter's. However. before using the article in any way, the finder must know its description well. so that whenever its owner shows up and identifies it the findtr can give it back to him or compensate him for it if it is not the~. This is ~cau~ the ownership of a finder of a lost artide is a temporary one which beco mes void once the real owner .pp"ars and claims it.

Sixth: Scholars differ regarding the ruling on picking up a lost object

within AI-Haram (the Sanctuary of Mecca). They differ regarding wh.ther the lost obj ect found thu e belongs to the finder after making public announcements about it for one year, Or whether it does not belong to him at all. Some scholars are of the opinion that the lost obje<:t found within AIHaram takes the same ruling o n other lost obje<:u found elsewhert due to tht gtnerali zation of the badlths in this regard. However. other scholars maintain that it i. im~rmi.<sible to possess a lost article found there. and that it is obligatory to make public announctment about it forever. as the Prophet (PBUH) said aboutAI Haram:
~ . .it is not allowed 10 pick IIp its fallm things (i.t . the lost objects found there) except by a pasoM who will look for its owner (by announcing haingfound it publicly)."'

This is alS(l the opinion maintained by Shaykhul-lslSm Ibn Taymiyah (may Allah have mer<:y on h im) who said,
it

"Th, lost article within AIU<>ram COM MtvI:, ~ owned by the one who pich up. and it is obligatory to mah publi, announcem.nt about it fo'.....'.-

This opinion is implied in the aforementioned aadirh that prohibits picking up a lost article found within AI-Haram. Seventh: if someone leaves an an imal in a desert due to its inability to walk or his inability 10 kup it. it will b-elong to the one who finds and takes it. The Prophet (PBUH) said:

"Ifanyone finds aM animal whou own ..... could not afford it and so Ihq haw rtleased it. and then he (thefinda) takes it. it will ~Iong to him ....
This is b-eeause the owner of such an animal released it out of lack of int.rest in it. $0 it ha< the same rulings o n things whose owners get rid of due to lack of interest.

",
When wmrone loses his pair of .hO<:$, or any of hi. belongings, and finds a diffcll'nt one instead in the same place, it is considell'd a lost article that does not belong to h irn. Being found in the same place or .imilar to his lost item does not make it his. Rather, he is obliged to advertise having found il foroneyear,and then he is ~rmilted to take

only what is worth his lost onc and then give the rest in charity on behalf of its own er.
Eigbth: if a child Or a foolish person takes a lost article. his guardian must lake il and make a publi' announcement about having it. This is because a child or a foolish person is not legally qualified to keep trusts. If the guardian leaves the lost article to the child or the foolish ~rson, and it is damaged, he btcome. financially liable for it. as he is the OnC to be blamed for its damage. If the guardian makes a public announcement about the lost article (for On~ )",ar) and no on~ ide ntifies it, then it belongs to th~ child or the foolish person in his custody (as is th~ cas~ of any grown up or san~ person).
from a plac~ and th~n h ~ places it again in th~ same place, he becomes legally liable for it, a. it bc:comeo a trust in his custody that must be kept like OIher trusts, whereas leaving it may Ca~ it to be lwt. In fad, the Islamic legal rulings concerning lost an d found propertieo show how Islam takeo gr~at interest in Mu.slims' properties and how it is keen on protecting and sa~uarding them. This, in g~n<:ral, indicates that Islam urgeo MlL'llims to coopc:rat~ in righteousn~s.s and good. We pray to Allah, Glorified and Exalted be He, to make us fion in Islam and let w die as Muslim~

Ninth: if a person picks up a lost

articl~

Endnotes
I Ab(; DiwiKI (1717) [212321. 2 AI_Bukhlri (91 ) [11246] alld Muslim (447) (61247]. 3 Thi. W"" nomtod by Sa'id tbnul.Mu.sayyab in At-Bayhaq; ( 12075) [6131 51_rod MAlik (853). Mu<tim ret. 1ed it in I marfo form of /JadiIh from Zayd Ibn khili<! AIJubanl (4485) {61254]. 4 Mu.lim (1260) [3/56]. S AIBuk""; (2433) [SIlOS] and Mu. lim (3289) [SII27I, 6 AbU O!wUd (3524) [315 101.

CHAPTER

Foundlings

The ru lings on lw babie$ and those on lost ob;ec1S a~ high ly nbted This indicates IM comprehen!iveness of I"ami<: rulings in lMCIing all the worldly rtqu;,-.,,,,,,nts as Ishm a1wat'S pioneers (v ft)' \i1al and useful field The servkes rendercl through the Islam;': t"""hing. ""pa" tht contemporary Krvlces or nurseries, orphanages, and such pia,," th.1 provIde (or orpharu and disabl~d child ren who do not have supponen. Among Ihe unprecedented
noble tCJchings of Islam is its ca~ and in terest in fo ... ndlings.
A foundling i. a baby dnoorttd Or ab'\J1doncd by his p arents
Of ....110

is 1051

from them. and whost p..... ntage Is unknuwn in both case.lfa Muslim findsa I'oundling. hdw ha510 la~ him, 5Upporl and provide lodging for him. as i1 is a collect;", dUlY ' upon lilt- Muslim commu niI)'; if done by 5(>me Muslims then will be no 'in upon the rest. Yd, il will t.., a sin upon lhe Muslim community if ~II of them leave foundlings homde... ~nd hdplt$$ while they arc " hie to supporl them. Allah, Eulted be Ht. laYS:

""

~... "Nd K1f>f ....

'fIn rlfhlt-OiWtaI and pld,..

(Qur'tn: AlMl' idah: 2)

The generality of the veru indicates the obligation upon M,ulims to take lost babies and look after them, u it is considered cooperation in rightffiusne$$ . nd pirty. To pick up I fOtlndling is a "",an. of!laving his life, so it is as obligatory 1.1 lHding someone starving Or rr:lcuing SOInfflM: drowning.

A lost mild is considered a flU hu~ ~ing in all cases, as tTttOOm is the main ruling and .sJavtry is IM acqmon. So, when lhe~ is no proof of slavery. the child is conskkred a freo. one. On the OCher hand, whalev<:T money found with the foundling or near him is ~garded u his, .. it is found in hit
poJlltlo5ion. The finder of the foundling is to use such money in spend ing on him acco rding to what is acceptable, as he be<::omes his guard ian. However. if the foundling has nOChing with him to ~ ~Jtd for spending on him, the g\l.llrdian i. p!'nnitled to get financial lid from tIK M~inu' Public Treasury ror tla! pUrp<>Sl'. ' Utnar Ibrlul K....n~b (may Allah ~ pleased with him), wIKn IK was a ruin-, ... id to Ih' finder of a mundlins:

"Go.

fI~

and W l

(Ihl found bAby) ;s frrr,)'01I h,,,,, bomt his tUllmilm, are liable/or his txptndituTn .1

By saying so, 'Umar meant that the finder would take money from the Public Treasury of Muslims to spend on the foundling he picked up. According to another nuration, 'Umar SIIid to the man, ... Il,," we art liable Jor hil bmutfteding,"' Le. the MUSlims' Public Treuury would ~ Il'sponsible for the mmlffrling of IlK (OI.I ndling baby. Thus, it is not obligatory upon tht finw of a lost b.aby to atTord his/her bJ"rutfrtdin8 o r any other C"Ipc:ndilull', but it is an obligation upon tht M ..... ims' Public Trtasu ry in.lead. Vel, if the PublK Treasury of MuiJims is unable to ,fforo his/her expenditure, it beromn obligatory upon those Muslims know about this baby to afford hi5lhcr expenditu re, for Allah sa)'$:

woo

... and cDO{MrtJle In rlgh/oousnUJ <",d plery.. ."

(Qur'An: Al-Mt'idah: 2) In addition,lravin& ' foundling nuy Irad to his death, but taking him . nd spending on him is I kind ofhospitalily l ike that $hown 10 guests.. As regards a foundling's rdigion, ifhe is fou nd in an I..... mic: ilate OT in a non-lilamic state ....here a lot of MlI$Iims live:, IK is considered I MlI$Iim, for the Prophet (PBUH ) said:

"Every newborn is born with Filmh (rhe True Religion of 1slum)."'

20)

Yet. ifth( Iosl child is four><! in . non- I"'amic country ",he,., none or kW Mwlims liV(. M is cons id~red a dw",I~V(r liu th~ j>(Opl~ of his country. In this caS(, his finder b(comes his guardian if he Is a trustworthy p6!1On. When 'Umar (may Allah \)( pleased with him) knew that AMI lamilah was a righteow man, he approvtd of him u . guardian ofth( foundl ing an d Slid to him, YOl< MW ~m~ h i, B"lIrdian.' 5inct AbiI lamU wu the first one to ah lak( this lost child. At bame more entitled to M his gw.rdian. Concerning Iny money found with 1/>( lost baby. tm findrr must sper><! it on Ibis baby according to what is acceptable. as h( hu ~ome his SUlrdian. A guardian of I Muslim foundling can ncK ~ defiantly disobtdienl lO Allah or . disbditV(r. for It is prohibited to mak( a defiantly disobedient or disbeli(V(r guardian of any Musl im lest he should persecute him or make hIm 51r.ay from Islam. Likewise, a Bedouin, who moves from place to plaee. cannot be approvrd of u a guardian of a losl baby, aJ M may exhaust him/her. In this case, the baby is to be taken from the Bcdouin and be given 10 one of Ihe residents. Th is is ~cause staying in an urban are. is hetler for the foundling for both his religious and worldly mallers. 6Gides, il gives him/her a hetler chanc( of find ing his!htr lost family. Wlltn Ihe foundling grows up., and then dies or is kilkd. his inheritm ce or his blood money {diy"k> will belong to IAt Public Treasury of MuslilIl$, as long u he has no childre n to inllt rit from him. Yet, ifh( has a wife, me gets One fourth of the inheritance. If an heirless foundling is premeditatedly killed, the Imlm of M...Jims (the Tulu or th e one in auth ority) 1 legally considered his 5 guardian. Thi!is because an hc:!rlcss foundling is inllerited by all Muslims, whose rtprtSentati\.., is IM Im"'m. A<:cordingly, when a foondHng is pmnrditatedly ki1led, the lmlm has the right 1 choose eilher ~alial.ion or blood money mal 0 wiUbe kq>l in Ibe Publk ~asu ry, as ttN, lmim of Mu.sJi ms is deemed a Irgal guanlian of any M...Jim wllo hu no guardian. On the othc:r hand, if a foundling is int(ntionally """,ulted and injured, lie must be Id! unlil he reaclles the age of pubertyto deddr whether to ~aliate or pardon th e criminal {who assaulted him }. If a man or a woman claims the lmil ,hild to be his or lien.. the child mU be "'fUmed to hin. or her, u long as Ihtre are no other cl aimants. Thu It. JI because it is for the fooOOJ lng'lown good to know his J"Irenta.ge and rejotn his fam ily, and Ih= will be no llarm to others in Ibat. HOW('V(r, if different p"1"SQIU claim the lost child to be IMin. h( is to be giV(n to "'hOC"VeT produces IAt proof of hil tlU( claim. If no on( lIu a proof, or if thq produce conlr.adic:tory proof" the decision mu.1 be laken by the geoealogi.lI. To illustrlt~, in I similar case, . Umar Ibnul-Khauib ' "'!lOfted 10 people who judge and dlStin8ui5h parentage

IV RFtAMAnON O F WASTf.lANDS AND...

Ih rough R5fttlbIancc 0( child..,n and daimants,lnd that wu in the I""*'f"ICe 0( some of the Prophet'. Companions (may Allah be: plt~ with them). ThOle people were lib. g<',,",aloglsU nowadays, and the testimony of o ne of th<:m is sufficient in such cases, u long u he is a male. just person, and experienced in the fidd.

Endnotes
,
CoIIe<.1i~
tnt

duty; A rdipouI duly wflidJ if sulfJOmtly ful6ikd

br......., MuNima.. Ilw

will 00( br aIJW1l.blt /Or it .. on obligation, ..... i, beODI ..... an Kt of,h<: Sunnah

2 AI. Blyhaql (12ill) (6/2321. l lbn AM. Shaybah (l lS60) 16/2981. 4 AI Buk),J.r1 035'.1) [lI2791 ond Muslim (6697) [814231 . 5 Relaled by MlIik ond AI.Boy!laql o. menboo..d prnlously. III oriKin ... .. rNlod by AJ_Bul<tWI (51337). 6 "'l~ (2 1Z5S) [10l4421Ind AbdurRndq (13oI1S) 171J6OJ.

""","

CHAPTER
"

"

,
,

Endowment (Waqf)

In Shad ' ah (Islamic Law) , endowment (waqj) refers to Ihe retent ion of any pro~rty that can k knefited from, by sus~nding disposal of it and dedicating its revenueS to publ ic use as an act of charity_ Houses, shops, gardens, and

the like, can be examples of property endowment.

who~

bcnefitl (such as

fruils, rents. and lodging) Can be given in charity. Endowment is desirable in Islam, and it is considered a pious act that brings man near to Allah, as proved through the authentic S,mlWh (Prophetic Tradition). To illustrate, it is stated io the Two ~iliils that ' Urn", (may Allah be pleased with him) said to the Prophet (PBUH):

'0 Messenger of AI/o.h! I have a Ilmd in Khaybar which I priu highly, sa what do you order me tQ do with it?" The Prop/m S4jd,

"Ifyou lik., you ca" give the Itmd a> ~nd<>wment andgive itsfruils in charily." Thrrcupon . . Umar gave it in charily (a$ an endowment

""

IV RECu.MATION OF WASTELANDS AND .. ,

on the condition) thM the land and trees will neilha be sold nor given as a present, 1I0r bequeathed. He endowed it for the poorJor his kith and kill, jor emancipation of slans, for the Cause of Allah, for trawlers and for gums L.

[m!m Muslim also rdatM in hil; Sahib (Authentic Book of liadlth) that the Prophet (PBUH) said:

"When a human being dies, his deeds come to an end except for Ih"e deeds (whose ,,",wards art! everiasti"p: on8Qing charit)',

knowledge benefited from (hy otheN). or a pious son who prays for hjm.~l
J;1bir (may Allah be plea~d with him) said:

"All the rich of the Prophets Companimu ga"" endowment...

Al-Qurtubl (may Allah have m ercy On him) said:

"There ;5 no disag= mtnl among the Jaqlhs 011 the permissibiUty of endowing barrages and mosques. Yet they difftr about othn
propertifS:
The donor of an endowment must hf, legally qualificd to manage his own property. This mcans that slhe nmst hf, a fl"<'c, adult, and sane person. Thus, a child, a foolish or weakmindw person, or a slave is not legaHy qualified to grant an endowment.

An Endowment is Established through

Either of the Following Two Ways

I.VerbaJ indication of endowment, such as saying, -I endow this
place; or saying. -I endow this place to hf, UM'd u a mosque." 2.Actions thatlndicateendowmentaccordingtocommon con""ntion, such as turning onl s house into. mosque and giving penuission for pe<lple to perform prayer therein, or turning one'. land into a cemdery and permitting people to bury d ead persons thel"<'in. A Verbal Statement of an Endowment Is of Two Kinds 1. Direct statement: such as saying, "I ""dowed such and such property," or !;lying. "I grant sl.!rn and 51.!rn properly as ,m endowment in the

Ouptrt 5: Endowmm.
~

(~)

of Allah": and the like.. These a~ direct lIatements thal ha"" only the meaning of granting endowment$. When. donor jus! ulkrs $UCh words. his endowmenl becomc:I valid (if il m",l$ lh~ nn:~ conditlons), .nd he does nOl r>ecd to !;Iy any othu fomaulu to ronfinn the endowment.

2. Metonymy: here it means saying metonymk words that Can h."" mtanlng5 other than endowment, iuch as saying, "' give such and such property in charily." "I granl such and such property to ~ uS! roreVflr." or Ih~ Jik~. When a donor uses su~h metonymic words. he mUll have the int~ntion of granting an endowment. or use some direct statements side by side wi th such metonymic words to clarify them.

Conditions for the Validity of Establishing an Endowment

\l~

donor must be mentioned above.

I~ly

qualir.ed 10 manage his own proprrty, '""

2 The endowed objr-ct musl be an identified anide wh ich is con~ant!y uliliuble and non-consumable, unlike food and Ihe IiM. 3- The endoww objut must be specified. It is invalid 10 grant unspedfied endowments; it is invalid. for example. 10 say. "I endow one of my slav~.,~ or saying. "' endow one or my hou.e.," without specifying il. 4_ The endowm~nl must be for something beneficial, for it i means of gelling nearer to Allah. such as mO&Cjues. barrages. measuring bowls, houSC$, books of useful knowlfilge, etc. Another example of endowments for right.-ous UR is mdowing iomething 10 support kilh and kin. Accordingly. an endowmenl is invalid 10 be made for temples of I~ disbdie""rs. for books of d isbel ief" and atheism, or for lighti ng or incen~ing shrines or providing food and water for the C\lstodi.n, of artain grave" Thi,;, bau" such endowmenl$.re regarded as means of ' '''sting othres;n disobeditna, polytheism, and dl,belief. 5 lftheendowmenl is made for a crrt~in per.SQ n.thal p"fSon must be one who5e ownership is legally 'on.id~red va lid. because an r ndowment is a kind of ownership that is nOl valid for those who cannot pOMesS pTOperliet-. ouch as. dead or an anim.l.

IV RECLAMATION OF WASTEUNDS AND ..

6- An endowment must be fulfllled once it is made; it is invalid to be temporary Or suspended except in ca", it is a coodition for it to be given On the donor'sdeath. For example, it i,valid fora donor of an endowment to say, "When I die, my house will be an endowment for the poor,~ To illustrate, Abti D~wCtd related that' Vmar IbnulKhatt<l.b (may Allah be pIea",d wilh him) determined in his will that after his death, land of his called Thamgh would be an endowment for charity'. Since this tradition was well known and no scholar disapproved of it, it is considered consensus. Thus, if an endowment is made conditional on the donor', death, it must be given from only one third of his property, a. endowme nts take the same ruling on bequests. [( is obligatory to ful611 the condition of th e donor of Ihe endowment as long as it doe, nOI violate Shari'ah, for the Prophet (PBUH) said: -Muslims mu.! hep to tl" conditiol1s they moh, except for a condition thM makes something prohibited lawful or something lawful prohibited:' Besides, 'Umar Ibnul-KhattAb (may Allah be pleased with him) made a condition when he granted an endowment, and if il were not obligatory to be fulfilled, it would be of no use to make it Thuefore, the donor of an endowm ent can mako conditions ,oncerning the amount of the endowment, the priority order ofth e beneficiaries, the preS(nce or the Jack of certain quality (or qualities) of the beneficiaries, the guardianship of the endowm ent, and so on. That is to say, the condition made by the donor mUSI be fulfilled unless it viobtes the Qur'an or the SuMMah (PropheticTradilion). However, if the donor ~tipulate. nothing, those to wllom the endowment is donated will be equal; there will be no differena:: between the rich and th e poor or between the mal~s and the f"",ales among them. If no guardian i. stipulated by th~ donor to take care of the endowment, or if the appointed guardian dies, Ihe endowm ent mwt be supervised by thol>e 10 whom t~ endowment is donated if thty are specified persons. If the endowment is granted 10 an association like a mosqu e, or for unspecified people or unlimited num~r of people such as the needy or the poor in general, the authoriti es are responsible to take care of the endowment or, at least, to appoint someone to do so.

the guardian of an tndow~nt mllSt ft ar Allah and!m good care of the endowmen!, for it is considered a tl'U$! in hislilbilily_ If the do nor makes an endowment for his children, male and female children will be equal, as he hIS ma<k the m equal partners In hl$ endowment. Since there is 00 spifk division 51ipulatnl by the donor, al l his children wUl ha~ equal ~an in it, jllst like the ~ whrn one granu something to his dlik\r.,n ; it is equally dividnl among them. After the death of the d onor's children, the rndowmmt is to be givt'n to the children of his $OIlS. not those of his daughters. This is because daughters' children belong to at""r men (their fathers) whose nameli are gi~n to them, and thlll thosechildren are not indu<kd in the Qur'anic verse that $Iates:
-AIl.!h instrum ),ou ronu l7ltng )'(}ur childrm (I. e. ,"elr portW,u (}f jnherltll/'l(eJ .. ,~ (Qurln: An-Nis1': 11)

~~~Ily,

Howe-w:r. SOme scholars maintain that ~)'OII' , hj/dl'Pl- i n the afornaid ~rse also indudt daughttr$' ch ild ren, as one's daughten are one's children, and their ch ildren are the children of one'. childrrn. And, Allah knows best.. trthe donor says. "I make this endowment for my sons, Of" for the som of so and 10, then the endowment will belong only to the som, nOllhe daughters, fur the word "son' refen to the male children not to the female ones. Allah, Exalted be He, sbows such di stinction when He says:
"Or h<13 He dllughttn while )'011 hllw sonf' -

(Qurln: AI-Iur: 39)

if the donor specifIeS Ihat he makes the endowmrnt fOl" a certain tribe. such .. Ranu Hish im (Le. sons of t he Tribe ofHhhim) or Bana Tamlm (i.e. SORi of the tribe ofTamlm), th e endowmmt will belong to both the ~n' and the daughters of the spe<:ified tribe. This is be<:aust the title "Bmu of an Arab tribe refers to both the SOn5 and daughte rs of the tribe, though "Ban()" munssons.
W

H~r,

If the dODOr makes an endowment for a limited STOOP of pwpl~ whOM' membCt"s can be specified, nch of them mm!: ha~ an equal share. but if It [s for a group whose members cannot be specified or limited, il is nO!
obIiplory to divide It among them, .. it will be impossible then. RaTher, it is permissible 10 make the endowment restrictnlto some of them, according to a priority order.

'" An rndowmnu

III RECL\MATION OFW~TEl.ANDS ANO...

is one oflhe binding oommi{n~nu lhat become obIigiotory to fulfil! once they a~ made. Hence. il if im~rmissible \0 caned it, for t~

PropMI (PBUH) said:

... the klnd cnd IrttJ (of 011 endowment) will "tithe. be $old giw" a. a prrurtt, lIor """"""thed.
nOt"

AI-Tinnidhi said, "Scholtlrt rei, on this hlldlrh (for tM nJing on mOO..,mm/)." In short. it is imptrmiSl5ible 1 canal an endowment, as;1 is kgally 0

considertd an eternal tOl1lTa't. MQJ'alRr, an endowment <;an ncithtr ~ !.Old nor lransfcrrro from ils pia< .. unl .... il5 bendllS eompktdy vani.h. For
example, when Ihe endowed houS<' collapu$ and the profit i1 mak.,. cannot affo rd its repair. or when Iht endowed agricu lt ural land \m:omes infertil e
and ilS yield cannot afford its ""damation. il is permi$&ible in such CI~S 10 RII thceruJowr.d obJt<:1 . nd us.. iu price to gel its 1i~, for this best serves Ihe ob;ecli~ of i15 granter. HOWl:""T, if Ihe value of the 50Id en<iowrd property

cannot afford an tqual substitute. the price is 10 ~ Spent to gel a similar one ""en if of less valut. Thus. lhe new property will ~ regarded as an endowmenl otKe il is bought.

If the endowed prop<'ly is a mm.que thal is no longer in use U il Is damaged o. Ih" like. it is 10 ~ sold and its price muSI ~ ,!",nt on getting anolher mosque. If the prollt of all endowm ent is dedicated 10 a mOilque. and the profit is mo,e than enough. it is permissible to spend the surplus money on another mosque, for this serves and complles with Ihe main purpose of' the endowment. Similarly. it is permissible lo giw charity to Ihe needy from Ihe surplus profil of an endowment originally allocated to a mosque.
Iftn. donor designalts a particular person I. In. endoWJJlCIlt ~neficiary. and specifies a urt,in amou nt of money of the endowment profit to bf granted to that person every ~ar, the .urplu~ money is to ~ spe cified. Sheikh TI"lyyud-Dln (may Allah have mer<y on him) Aid In th is regard:

""'=-

if the pracudJ of the e.,dowment Ifrr always more than enough. the surplus must ~ 'hari/ably spent, for kuping il dreIlleS ilS
~ndil

of a mosque. and Ihm IlIis mo,,!"" is ruined and the endowmenl yield can not afford its repair. il mUSI be spent on anotMr mos.que,
If the donor makes an rndowment for In.

Chapter S: Endowment (W"'If)

Endnotes
1 Al_BukhOrl (2737) [51435] .nd Muslim (4200) (6188]. 2 Mus li m (4 199) (6187]; Abll DAwUd (2gg0) ()1201]: AI-Tirrnidhi (1380) (31660] and An_Nod' i (:l6S3) [31561] 3 Alii DiwUd (2879) (31201], 4 Alii !)'!wUd (3594) (4/16] and .0.1_ Tirmiclhi (1352) [)1634 J. 5 Al_ Bukhhi (2764) [51479] _

CHAPTER

Gift and Donation

The gift rdtrs to a dOll at ion of a specific amount of prop".ty given by a person legally qualified to manage his own property. The Prophet (PBUH) u",d to gi"" md accept gifts_Thu<, giving or ",c.pting a gift is a re<:ommendffi act of the Sunnah (Prophdic Tradition) due to its consequent virtues. The Prophet (PBUH) ",id:

"Give presents to one (mother 10 gain the low of o..t another."'

'Xi.hab (may Allah be ple.....,d with her) said:

something in nlurn ,~ '

"The Messenger of Alklh (PBUH) used

10

"ccept gifts "nd gi""

Th. Prophet (PBUH) said:

"Give presents to one "'lOther, for a prtsent removes .ancor:'

Th. gift belongs to the recipient Once h. get, it with the permission ofth. giver, .fter which the btter is prohibited to tah it back. However, if th e gift

'"

IV RECLAMATION OF WASTELANDS AND .. ,

is not yn giv..n to th~ =ipi~nt, it U p"nnissible for the giver to take it back due to the following badilh narrated by 'fi.'isbah (may Allah he pleased with her). She narrated that Abo Bake A.i,-Siddlq, her father. granted her an ilIIIoont of twenty wasqs' of the dates of some palm llUS in Al 'Aliyah (a plaa n ear

Medina) a year. Then when Abii Bakr fen ill, he said to her:

'0 my daughter, 1 granted you som e palm IreN In Al 'Aliyan which

would produce twenty wasqs of dates a year. If you re"ewed "nd possessed them, they would belong 10 you. Yet, they art! considered

now a property of all my heil}_So, divide them according to the Book of Allah. E.wlttd be He:'
If one is granted a gift that is already a trust with him or borrowed money
in his liability, it become, his without having to give it back and retake it from the giver. Also, il is permissible for the creditor to give up the d"bt as a gift to the debtor, and thus then: will b<' no liability on th~ part of the d ebtor 10 pay back such a debt. In addition, it is pernlissible to giv~ as a gift what~vu can be legally sold.
1 is invalid to make th~ gift dependent on a future condition, as when the 1 give r .ayS to the ~ipiel1!, "If such and such happens, this gift will bt yours." An exc~ption of this ruling is when the giver stipulates that the gift is to b<' giv~n to the recipient after the giver dies, as when he says to the recipient, "When I die, such and such is youn."!n this case, the gift will be regarded as a b<'qnest and will entail th~ latter"s mlings.

On the other hand, it is invalid to gi"" a temporary gift, as when the giv~r says, "! will give you such and such as a gift only for a month (or a year); This is b<xallS" a gift is a kind of property possession, just like a sold artide, sO it cannot b<' temporarily gram~d.

T is impermissible for a father to give a gift to one or some ofhis children l

without giving similar gift, to th~ oth~n, as it is obligatory for him to be just and to treat all of them as equals, giving them ~qual gifts. An_Nu' m'n Ibn Bashir narrated that onc~ his father gav~ him a gift and accompanied him to the Prophet (PBUH) in order to make him a witness to thi'l gift. The Prophet (PBUH) asked him:

"HaW! YOUgiveM equivalent Ones to everyone ofyourchildrt"r" Whu Ihe man answered in th~ negatillt, the Prophet (PBUH) said to him, 'Take it back,' ~nd ~dde4, '~ar AIIQh, and ~ ju,t la your children: "
(Related by AI.BukMr! and Muslim)

Our"" 6: Gir, .nd 000.. .100

This Iludrth states that it is obligatory for parents to treat their children justly and equally and to give th "'m equal gifts. Jt al.o indicat.s that it is prohibite<! for a Muslim to h<: a witness to such a gift or help to carry it out, as long as he knows its injustice. When the recipient take. the gift. the giver is prohihitffi to takt it back, due to the following /J.adirh narrated by Ibn . AbM,: the Prophet (PBUH) said:

"He who takes back agift (which he IIIlS already given) is like a dog that vamits, and then swallows its vami/."'
This badith indicates the prohibition of taking back the gift, except for a gift granted by a father to hi. child, a. stated in the following badith: the Prophet (PBUH) said:
"It is not lawful to anyone /<) give a gift then take it back except fo r the parent who takes back wMt he has given to his child."'

(Relate<! by the Five Compilers ofHad ,'I h, and deemro ~a!J. ill (a uthrntic) by At- Tirnlidhi}
A. long as he does not harm his child or deprive him of his needs. the

father is permitted to take from the property of his child, due to the bad/th narrated by' Nishah stating that the Prophet (l'BUH) said:

"The plellsantest things you enjoy mme from what you earn, and your childrtn come from what you earn ru well."'
(Related by At -Tirmidhi and other compilers of Hadith, and he deemed il /YlSlm (good) badith) There are wme simi l ar badilhs indicating the permiss ibility for Ihe father to takt, possess, and eat from the property of his child, provided that the father does not h arm his ch ild or affect his needs. Morwver, by saying to a man, "You and your property belong to your father: " th e Prophet (PBUH) obligate. the child to serve his father. This make. it permiss ible foe the father to lake from the property o( his child when ever he needs. Still. it is impermissible for the father to take and posse... from the property of his child in a way that harms the latter or deprives him of his needs, as the Prophet (PBUH) said:

"One should no/ harm others nor should one seek benefitforonese/f by causing harm /oothers.-"

'"

IV RECLAMATION OF WASTEL'.NDSAND .. .
It is impermissible for the son 10 claim a debt from his father. Ono:. a man

accompanied his father to the Prophet (PBU H) to claim a debt from him (the

father), and the Prophet (PBUH) said to the SOn:

' You and ),our property brlong to your father:
This hadlth slates that it is imp ermissibl. for the son to claim a debt from

his father. In addition. Allah. Exalt.ed k He, says:

... ond to parents do good . ~

(Qurln: AI-Baqarah: 83)

Thus, Allah, Glorified be He, ordains Muslims to do good 10 parentl;, SO

a Mwlim child should n ever claim a debt from his parents. Yet. if the child is unable to earn his living and his father can afford his expenditures., he is p"rmitted to claim the remittance h. d.",rve$ from his father in order to safeguard his life. To illustnte. the Prophd said to Hind Bint 'Utbah:
"Tab what is sufficient foryou and your ,hildrt:n, and the amaunt

shauld be just and reasonable,'" "

In fact, giving gift. 10 one another "'moves rancor and malice from people's

heam and begets love and concord among th~m; th~ Proph~t (PBUH) s.ay~'
"Give presents to ont another; for a pruent removes ranCOr from th t ht art, "
On the other hand, a gift should not be rejected ~en if it is very humble or littk It is an act of the Sunnah to give romrthing in return for the gift as the Prophet (PBUH) ~d to accept gifts and give romething in rdurn, which reflects the glorious Islamic values and noble character.

Endnotes
I Imlm Mtlik', Cotl""t;oo Book of ib</if/" ent;~.d A/Muwalla (16) [2I326J; AI_ Bukhjrl. book entitled 'AI 'Adahuf.MuJrod (594) and AI-Baynaqt (11946) [61280]. 2 A I-BukMri (2585) [51259]. J Ajvnad (9222) [21405] and Al_Tirmidht (2135) [41441 ]. 4 Wasq: A standard me ure (hot equals 130320 gromo. S AI_Bayh&ql (ll94S) (61280). Ii A I_Bukhiri (2587) [51260] a rid Mud im (4157) [6169]. 7 AI_Bukhiri (2589) [51266] a rid Mud im (2 t 52) [6167]. 8 A biI DiwUd (3539) [31518]: An-N ...n (3692) [3/576] ood Ibn M!jah (2377) [3/ 126J.

At-1innidhi mentKmed it wit~ut mentioning h. chain of transmission (31592),

Chapter 6: Gift and Donation

9 AbU Dawiid (3528) [315 13); At-TInn idhl (1362) [31639); An_Nw', (446 I ) (41276]_nd loo M'jah (2290) (3/80] _Abii Diiwiid (353 0) [3f5 14] and loo Mij.h (2292) [3/80). 10 Ab(; Diwiid (3530) [31514] and lbn Mlj l " (2292) (3180). t 1 Ahmad (2867) [11313) "nd Ibn MAjah (2340) [31106]. and (234 1). 12 That ...... tile Prophet's reply wilen Hind Bint 'Uthah complain! to him that her hu,har.d. AbU Sufyln, wa miStr who did not give ller wt.,u was suffic ient to mI btt and It.. childml', ~ds .ski ng the Prophet if it wo, penni.,ible for her to Lake som. of hi, property without hi' knowledge. 13 AI-Bukltiri (5364) [91628) and Muslim (4452) [61.!34). 14 Altmad (9222) [21(05) and AI-Tinnidhi (2135) [41441 J.

V:INHERIT

CHAPTER

Disposal of One's Property during Sickness

validity of one's dispo ...1of one's own prop<i'rty while being in a sound health differs from Ihal in sickness, as long as one disposes of his property acoording 10 the Shurrah (Islamic Law) and reason. and as long as this disposition is nOI open to question. It is worth mentioning that giving charity in sound health is much brtter and more rewardabJe than giving charitywh ile
Th~

being in sickness.
Allah, Exalted be He. say.,

th e wayof,,".. It/from wSwt w~ have providtd ,..,,, 1Je.fore death "pproaPtf'S "ne ofyou "lid htlll)'S, 'My wrd, If only You would /hillY ""jor" Ilritfurm ro I would giw charity aruJ be "mMg the righteous: But ntver ",ill A/lah deI"y a row Its fi'lI t hw CO"'t. And AIUdt ;. Acq ....;nkd with "'lull you /k)." (Qur'An: Al -MunMiqi.\n: 10 - I 1)

~And Iptnd [ill

wh,,.

Y INHERITANCE

It is related in the l'wo s.ab.ibs I that when the Prophet (PBUH) was aslced about the kind of charity thal ha. the Srtatesl ,",ward, He (PBUH) aruwe,..,d:

"(The greatest charily ;s that which) you give in dwrity when you are htalthy and niggardly hoping to be wealthy and afraid of becoming poor. Do MO/ delay giving in charity until the time when it (i,e. the soul al death) reachf$ the throat I",d you SlIY, 'Give sv much to.o and so andro much /0 so and so,' and a/ that time the property ;s nol y<lurs but it belongs /0 so and so (j.e. your inherirorsr'

There are Two Types of Diseases

First: Curable di",,,,e.: These are diseases which do not normally lead to death, such as toothache, ~e pa in or non-acute headache. In such cases, similar to a healthy ptrson, a sick person's disposal of his own properly is valid. Thus, one. disposition of all one's property (such as gifts, ~ndowments and donations etc.) in this case is valid, even if on~'. illn~s.s changes into an incu!"llbl~ di, .., and l~ads to deatb.
Second: Incurable di.., ..." This is the illness which usually results in death. In ,uch cases, a sick person, donalions and gifl~ art "alid up 10 only onethird of hi. mon"}" and not from hi. fixed capital. lfhis dispositions of his propertyncu d on. third, then they are invalid, unless approved by hi. h~irs .ft~r his d~.th. The Prophet (PBUH) said:

"Allah made a charity upon you m demit by (allawjng you to give) oneIlIird ofyou. wealllt (as a charily) to iHaease y"ur (good) deed,: '
(Related by Ibn
M~jah

and Ad mraqutni)

Th. aforementioned /lad/Ill and those with similar meanings indicate that a sick persons disposal of his money upon his d eath should not exceed one third of his wealth. This is the opinion adopted by the majority of schol.rs. This i, because a person suffuing from an incurable disease is likdy 10 die and any disposition of his fixed capital will harm hi. inheritors; therdore, his gift, are limited to one-third only, the ..me", the will. Simi lar to incurable diseases a"" dangerous circumstances, such as being in a country ",h. ,.., th ",~ i. an tpidemic, in the battlefield, or whil. traveling on rough ~eas in a ,tonn. In such cases, disposing of more than onethird of the ~ntir~ prope rty is invalid unless approved by the inheritors after his death. Likewise, ifa person in such conditions

eltap''' 1, IJilpoW of 011<" P .....p''''r Jur;ng Sidrncn

223

donales 10 1I legal h~ir (who is enlilled 10 a pr~SCTibed share) un der any of such circumstances, th~n his disposition is invalid unles.s approv~d by hi~ inh~ ritors. This is in case he dies in th~..., circumstances. Y et, if;). perron recovers from such a '~rious disease, then all his gift. ar~ (0 nsid~red val id, du e to the ab!;Cn(e of the impedimentary cause. The ruling! on a healthy person are the same as thos~ pertaining to th e person having a chronic disea~e, but not confining him to bed. The donation, given by su(h a pe rson from all of his money (not only one-third) i ~ valid. That il ~cause this chronic disease docs not normally lead to death, so it is the .ame as the case of old age. Neverthd~,", if this chronic disease forces a pen;on to stay in ~d, then his case is the same as the one affiicted with an incurable illness. Thus, he (an not ~ueath mor~ than one-third orhis property and he is not to b-equeath to anyone ofth~ legal heirs ~xcept when the hein; approve of that. That is ~cause, a bedridden person is likely to die. One-third of the decea,ed person', property should ~ taken into consid.ration at the tim e of his death, since it is the time at which ownership of a bequest is transferred fro m the te.tator (or his heirs) to the legatee. Thus, at this time ~quests and donations are to be fulfilled from one-third of the property. How~v~r, if his entire property is not ~nough to cover his bequests and donations, th(n donations take precedena: over ~quests in being applied since they are effectl\'e ~fore his death (while ~u.'ts are effective afte,), as if they a,~ made while he is in sound health.

Faqihs' (may Allah have mercy on them) state that ~quests are different from current dispositions {such as gifts, endowments and donations, etc.} in four things: Firstly: There is no difference betwn the firstly mentioned legatees and th()s~ m{>ntioned later in the bequest, because all of the bequeathed pr0p"rty is to be disposed of after th e testator's d~ath, all at once. On the mntrary, current dispositions are intplemen ted one after anoth~r according to their order.
Mcondly: One cannot cancel on e's curr~nt dispositions after they have alr~ady be<: n giv~n while on~ has th e righ t to nullify the bequest or revoke it at any time since it is applicable only after one's death. Thirdly: Current dispositions a,e tffective before the death of th e donor while bequests are effective after. In other words, current dispositions are normally implemented whenever they nisI. As for a bequest, it is a transfer of ownen;hip which comes into operation after the testator's death; therefore, it is nol dfective ~fore his death.

V INH ERITANCE

Fou rthly: The lransfer of own(fship of current dispositions is at the time of accepting them, even before the death of Ihe donor. Convc:rwly, the time al which ownenhip of a ~ueJt is lno nderftd from the t~r 1 0 the k-gatec: is the death of the testator, since it is a transfer of ownership which COrnU into operation after th e !citator's de"h, 50 it must not be taken before its due time.

Endnotes
1 Th. 1'w<> SoIblbo: The 1'w<> Autn.ntic IIooI<e of Al BLlkhl.rl . nd Mu. llm. 2 Al t\ulthirl (2701l1) and Muslim (!OJ2).
llbn MtjIh (1709) l3IlOII}. AI.8oyhaqI (11571) (6J44lj and AH)w'IlI\III (4245) 14/85J. 4 faqIII: A.mow oflsWnlc luril:prudc1l.

CHAPTER
,

"

Wills

A will , acw rding to / oql"$' d~finition. is a legal declaration orhow a perwn wishes his posse~ io ns to be dispOsM of after his death. In other words, it is an a<:tion in whk h on e donates on,,'s property to be given after one's death. The wi ll is legislated aC(ording to the Qur'1n, the SrmnaJi (Prophetic Tradition) and co nsensus. Allah . Exalt ed be He. says:

"PrtKrilndfo~you wh.n death 4pproachu {any] OM ofyou ifhe ieaw. _alth (h thllt he ./t"uld mllke] " beqllu t for th e par. ,,'. 0114 nt il' re"'tlve, accord;"g 10 wh<lt;' aut pt.u.lt - a duty ..pon the righteo .... (Qu r'~n: AIBaqarah: 180)
B

And He also s.ays:

... Aft" ""Y Inquest he (may It..".,) made orde"t.. (Qur'ln: An-Nid': I I)
B

'"

V INHE.RITANCE
MOIl'Ov~r, th~

Prophet (PBUH) said :

"Allah mad~ a charity upon you at death by (aUowing you to give) onethird o/your wtalth (a. a charity) to increase your (good) deeds."'
in addition, there i ~ a unanimous agreement among MlI.5lim scholars on the pe rmissibility of the wiU.

The will is obligatory to be made in SOme cases and is desirable in others. It is obligatory fOT a person to determin e by a will all financial rights of others which he is holding, or his financial rights whidJ others are holding. This is to be done in ,a~ these righn are nOl recorded, lest they should be lost. The
Prophet (PBUH) said:

"11 is nor permissible for any Muslim who has somerhing to will
to stay for two nights without having his last wi/l and les/ame'" written and hpl ready with him."'

Thus, if someone has deposits Or rights which he OweS to sOme must dearly list and re.:ord them in his legacy.

peop!~.

he

It is desirable for iI pnson to bequeath a portion of his property to charity. the r.. ward of which will be recorded for him after death. The Lawgiver' permined one to give one-third of o nes wealth (as a charity) to increa.., ones good deed. Si milar to prayer. a will is valid from ~ sane boy. A will is legally valid if there are witnesses to an oral de.:!aration, or if it is written in tb e known hand writing of the testator. Among the rulings on a will are the following: Tbe testator is permissible to bequeath up to a maximum of one third of his property. Somf scholars deem it desirable to bequeath less than one-third of the property, a $ reported about AMl Bakr A.I;-Siddiq . AI! lbn AbO. I~lib, ~nd . AbduJl~b Ibn . AbbAs (may Allah be pleased with them all). Abil Bakr A}Siddiq (may Allah be pleased with him) said:
~I

bequearhed ,he amounT which Allah has determinedfor Himself"

The amount indicated in this phrase is that mentioned in the Qur'anic verse:

knowtlultanytlringyou obtain of war booty -Ihtn indttd. /orAl/ah is onefiflh ofil..." (Qur'an: AI-Anf3.l: 41)

~And

Morwver, . Alllbn AMI lllib (may Allah

~ pJe~d

with him) said:

"Iruutd, to /Jequealh one-frfth (Dflht pro~rlyJ 11 prtftrrtd for me to bequetllh a quarlu."'

lbn . Abbb (m,y Allah bt plellSed with him) said:

"It would /Je EN,IUr fOT tmJPk ID lower the value of the /N,q~1 from 0 ontthird 1 11 /fUIlT' (of the propeny),jor Iht Prophtt (PBUH ) said. : .. OnNhird: )/'tt, em! one-third is /00 much: ..
It i~ imptrmi.. ible

to btquuth mo~ than ollt t hird of his ntau, if IK ha.! leg.1 hein;, unl.... approvt'd by them, since il is thei r right. However, if they authorize Ihi~ tllcns, th en his bNjunt is conside,..,d valid. M(lrt(l~r, their auth nri>.ation is to ~ valued after th e testator'. de.t h.
tnl~tor .1~llKir,

for.

It ill I~y invalid to Mqutath.n u tn portiOf1 to Prophet (PBUH ) said:

for the

"No l>equl!Sl mUSI EN, mook 10 an heir."'

(Related by Ahmad, Abo. Dlwild and At-Tirmidhl, and the latter dee med il b."UIn)

There a,.., olher narntions similar to this hadllh bu t wit h .tight change
in wording. Sheikh Tl qlyyud Oin sai d:
"1'hert is .. uniform 'WUrntlll Oil IhisbtWffh. I'Mm AshSMfi 'i >lllltd Ilral lhe ajorrnK"lllionn/ b.<ldith is a mutaWilllr (conlllluowl, rrcunmt) Ilodith,' .",d Ite $<lId. Thtrt i. ""''''I''''' .... "gm'mAl omong Iht schokm s~"lizn/ ill issllingltgol rulings oNl l ite scholars of mililory

txpldi/iom of Iht Prophet (PBUH) from Quraysh and orhm rhatthl Proph<l (PBUH) said Ih ;1 Iladi/h iM Ihe )'tllr 01 th t Conqutst of MI!(:(Il, MoftOvtf, Ikty I'l!!port Ilrll badith OM the allthority pfthost they met from among tht ~opk ofkllowltdge:' Thus. ony btque/t madt in 1~\lDr of ~"y Itgol heir ..tread, t " titkd 1 prtJeribnJ W"' is i"""lid Ilnitss ,,-pprrwtd 0" by othn Itgal hrir$, $i,, il i. tluir right. Corm:'I"mtl,. " Imlllor mo, bequeoth " n utm portion 1 oltgAl htir Of" dispose ofQ porlion ..-.:modi"g 0 ont-third to 0 nO/l.I'f'J1 htir if mM kg<ll htirs (oruc-IIt 10 lhe btq~, providing Iktir ~rmlssion is madt while Iht ttslalOf" is Oil lite d""rh/Jed or ~fttr his dmrh."

I~ HERITANC E

'" A ~unt is """irnble from,. wtal!hy JI'"'On whost hrir is wd]off, for AIW!, Exalted be He, SIIYS:
dtGllJ a~ {....,.J ...... ofJO .. if he ""'''" tWQ/lh {is dun M JIw ..ld mab] /I ~M... ~ (Qur'ln: AIBaqar2h: 180)
~~for you,.."""

The word 'wealth' in the .fortSllid ~rse implies that the testator should be rich in order to makea bequeil. Furthermore, a bequest is not desirable from the poor person who h:u little money and whose

heirs are in need of his mon~y. Sy doing so, h~ will b<! abandoning his
relallves, who arc in need of his mont')', for the ~fit of strangers. The Prophet (PBUH ) uid to Sa ' d loo Abit Waqqq:

"You would bellt'T Itll~ your inhtrilOl'J W<eIIlthy mlher rhll" having rhtm poor, begging olhtrs." '
l mim Asb-SIuo ' hi: uid, ~No ",""", h/U a gmJlt'TrrwanJ IMn Iht mon", 1I ufi by I> '""" to his mi/JrtII 11> Jlllfrct lite", front begging 1IIhtn All Ih" Aha IlIib said 10 a mall ,
"fOil

hove Itft only litlle property. UJ /'' il go 10 )'Our heirs.""

Moreover, maoy of t~ Prophd's Companions did not make: ~Ik'sts .

It is prohibito:d for a testator to m~ke btqw:st with the inlention of harming and annoying his inherilors. for, by doing Ihi', he wiU be commining a sin. Allah, Ex.aJted be He, said:

"0 detrl",ml !"'uudJ... (Qur'ln: AnNis;l,': 12) A sirniIM meaning iI impl inl ln tht following IJ,adilh in which th. Prophet (PBUHJ uys:
"It ClIIlId hllpptn liuu Il nmn JPlnds sixty ~Ilrs in oMdiena 10 AUIlh and wht n he is 0" his dMlhbtti, he mlly tllU~ harm (Ill Iris heirs) in his will, UJ'~ Hdlfirt bomu i",vi'lIblt 10 him.~1I

~... '" lo"g /lJ 'h~ is

lbn . Abbh (may Allah be rleased with him) said:

"Ca using harm by ,ht will is ont of the major sinJ.""

ImAm ..uh-ShwUnI (may Allllh have mercy on him) Sllid,

"Th. Qurimic Vtrst '... <IS l{lnt

(Qur'in: An-Nid':

Q no ddrim.,,' {clluudj .. .' 12) m' llrIJ IlrOl 1l ItSlIlIOr"," mllbll ~qu'JI ifonly
III

IMn

il will not "'USt OilY kind of harm 1 his inhtTitQ sudt lIS sto/ing owing 0 rs

Chap"" 2, Will.

229

some(hing he, in faCI, does not a..... to Qny<m e, making a ""quest with no intention but harming his inheritors, btqueathing an extra portion 10 an heir, or bequ~alhing more than one-third to a non_legQI heir while nOI approvt:d by the other inheritors. Thi. condition, i, ~. '....... long as th..... lino detriment {caused} .. : is applied to beque.t. and debts which are mentioned in tlit <lforesaid noble verse. In other words, any assignment. of debts or bequests. which are forbidden or made with nQ intention otkr than harming the inheritors. a", cmuide.-ed invalid and "'jeeted and nothing of them is to be fulfilled. either one-third or less,'
One may l>equeath his entill' property if he has no inheritors, for the Prophet (PBUH) said:

You would bette r leave your inheritors wealthy rather than leaving them poor, begging othas.""
The p<:rmi..ibility of bequeathing the entir<: property, providing there ar<: no legal heirs, is stated in a hadith reported about Ibn Mu . lid {may Allah be pleased with him) " . Also, the majority of Muslim scholars all' of the same view, because the prohibition of bequeathing more than one-third is only for the sake of the inheIitors; thus, if there are no inheritors, then thell' will be no ll'a50n for prohibition. Moreover, bequeathing the entire prop<:rty will not harm anyone since there ar<: no heirs or Cll'ditors, and it is as if the testator had devoted all his money in charity during his life. In this regard, Im6m Ihnnl-Qayyim said,

"The sound..,t opinion is that the testator has the right to bequroth Ms mtire property, providing he has no heirs. That is bteause the Lawgiver has forbidden btqueMhing mort thQn One third only if thtrt are legal inheritors, SO the on~ who has no inheritors can do whatever ht wants with his n!onty:"
If one third of the testator's current money doe~ not cover the amount of the money assigned in his bequest, and the heirs have refused to authorize the excess over one-third, then the amount of the portions of all the legatees is to be decreased, each one by virtue of his allotted share. There i. no difference between the legatees mentioned first and those mentioned later in the bequest becawe all of the bequeathed prop<:rty is to be disposed of after the testator's death; ther<:for<:, the bequeathed property has be<:ome due at the same time. Thus, the excess is to be deducted from the legatees' portions at the same time. ince they {the legatees} equally "har<: the property but may differ in

""

V INHERITANCE

the amount d educted from each one', .har.., just a. the CM. with the . awl ". Similar 10 this is the Case wherein a testator bequeaths a

hundre<! riyal. fo r a person. a hundred dyal. for a second person. fifty firal. for a third person. thirty fira!. for a fourth person, and twenty riyals for a fifth person, thereby the total amount he has bequeathed
is three hundred liyal . Yet, one-third of his entire property is only hundred liral . Thus, each person is to be given only one-third of the portion h e was allocated in the bequest.

The validity or the invalidity of the bequest, ....ith regard 10 legatees,

i. considered at the time of the death of the testator. for example,

if a person bequeaths to a legal heir and at the time of death of the

testator this heir becomes an illegal heir, such as th~ c""'" of a brother who has been excluded (of being an heir) bya leslator's newborn son. In this case, the bequest is considered valid at the time of d~ath of the testator be<:ause it is the time at which ownership of a bequ~st is transferred from Ihe teslalor to his heirs and legatees. On the contrary, if a lestator makes a bequest for an illegal heir and at the time of death of the testator this illegal heir becomes a legal heir, th~ bequest will not be valid. An example for that is th~ ca", of a testator who bequeaths to his brother while th~ testator, son is still alive at the time of the bequest and this soo dies after that. Thus, the bequest is considered invalid unless authoriud by the other heirs becau", the testator's brother has be.:ome a legal heir at the time of the testator's death. Con"'quently, the acceptance of a bequest by the legalee is only relevant after the death of the testator and not before, and also the transfer of ownership of a bequest from th e testator or his heirs to the legatee is only after Ihe death of the testator, and it is not permissible for the legatee to accept the bequest before the death of the testator. Al-Muwaffaq said,

diff""n"" of opinion among.1 .cholan rhal Ih~ validity of the bequtJl is ronsidered at the time of the ttJtator"s death. If the bequest is to nOM-specific individWlIs, such as the poor. the fama}' of so and so, or Jar a public interesl such as building mosqUIt$, tlltn il is effeclivt immediately after (he tes/alarS death, and the acceptance of the bequest by the legatee is irrelevant in such casts. BUI if the bequest is made iM Javor of a particular individual, then the ownership of the article bequeathed depends On the acaptanc~ DJ the legate~ after the testalor's death.'
MO

,km, is

o...pter 2: Will,

231

The testator has the right to revoke his will by a subsequent will, or nullify it. completely or partially, To illustrate. 'Umar (may Allah be pleased wilh him) said;

"0". lu:!s the right to change whatever one likes in ones bequest:"
There is also an agreement amongsl people of knowledge with regard to this matter. If a testator makes some article a bfijuest but then he says. "f changed my mind," Or says any word which implies that he is nullifying his bequest or part of it, then his bequest is nullified That is because the time of the death of the testator is the only relevant lime. with rrgard 10 the validily of the bequest and the acceptance or Ihe rejection of the bequests by the legatee. Thus. the lestator has the right to revoke his will during his lifet ime. For example, if a testator says, If X come1l, I bequealh to him what I have bequeathed to Z;' and X has com e during the testalorslifetime. then the bequ.. t is to X, and in such case the testator's bequesl to Z is nullified. However, if X comes after the testator's <kath, then tbe bequesl is to Z, That is because the testator's <kath has betn b<.fore the arrival of Xi thus. the bequest has (been) . ettled and transferred to Z, Obligatory expensfi .uch a. debts and religious obligations like Zak~h, expiations, vows and Hajj. must be paid first. whether mentione<! in the will or not. as Allah, Exalte<! be He".says:
'. ,after 1In)' bequ e.t which W<I.I made or debt".' (Qur'an: An -Nisa': 11)
'All Ibn Ab" Dlib (may Allah be pleased with him) said:

"The MtlSengeroj AI/llh (PBUH) decretd that ones debt is to ~stttl~d be/or, ones will i~ mrried Ol/t,"'"

(Relate<! by At-Tirmidh!, Abmad and other compilers of 1:iadilh) According to the aforementioned, paying debts comes b<.fon: fulfilling the will, It i. recorde<! in Sahih AI-BukMri (AI-BukMris Authentic Book of 1:i~dlth):
"" ,So fulfiU Allah's Rights, as Ht iJ morn entit/ed to rect i"" His rights:"

Thus. according to the consensus, the sequenc e of rights is as follows: debts are to be settle<!, the bequest is 10 be fulfilled, and then the remaining property is to be divide<! belween the legal heirs. It should be note<! that the- kquesl is mentioned befoft debts in the aforem~n-

V lNHERlTANCE noble v~rs.~ despite of the fact that debts take precedence Over b<.quests wh~n fulfilling them. This i, becau(;l', similar to inheritance, fulfilling a bequest is granting property with no compensation, so the inheritor carries it out with great difficulty. Thus, ~quest is mentioned in the above ve= ~fore debts in order to urge inheri tors to carry it out, and 10 emphasize its importance. It is noteworthy that the con junction 'or: which indic~tes equality, is used in the ve=, "..after any bUjl/ut whith was made o,debt .." in order to str= t""t both things are equally important, although debts take pm:edence over bequests when fulfilling them. Accordingly, the will is of a fundamental impor' tance. Allah, Exalted be He. mentions it in the Noble Qur"~n and gives it preced ence over other matters, thus stre..ing its importance and encouraging people to fulfill it, as long as it complies with the Islamic rulings. Moreover, Allah, E:<altro be He, warn$ whoever neglects the will or changes it without any legal excuse. He, Exalted be He. says:
tion~d

"Thtn wh ....veT alters it {i.t . tht />equat] after ht has heard It - tht ,/.. Is o.. ly ..pon thost who have ~Ittnd it, Indeed, AI/..h is Hearing""d Knowing." (Qur'An: Al-Baqarah: 181)
Imim A.-ShawUnl. in his eugese. ofth" Qur'an stated:

':Altering means chmlging. It is a Ihreat from Allah 10 whoever alters a legally valid will which does not harm anyone. The Jin of altering the will shall befall those re'ponsible for altering it and there will be no sin upon the t~stator, for he has absolved himself by making a bequest"
A b<.qu~st is p .. missible to be made in favnr of anyone capable of possessing such bequest, whether a believer or a disbeliever. This is due to Allah's statement:

..... uctpl that you may do 10 your clost aSJodattJ a kindness (Qur'An: Al-Ahzab: 6) /Ihrough Mql/estJ ...~
Mnhamn,ad Ibnul-Hana fiyyah said, "111;s vel>"e ref,. to the b"'lWl$/ of a Muslim to a kw or a Chri,tian: Mo"",over, 'Vmar Ibnul-KhaU1b (may Allah be pleased with him) gave his polytheist brother a garment striped with silk, " and Asmil' gave a gift to her mother though the laller was a disbeliever, " and S1fwyah , Mother of the Belie~rs, bequeathed one-third of her property to her Jewish broth er". Allah, Exalted be He, says:

"Alklh dots "0' forbid )'ou from Iha." ",ha da ."" fighl )'tJu b"Clluu aj religin .. and da nO/t"pel )'tJu from ),our homu - from being righleous t01+'<lrd Ihem and acting justl), /(Iward Ihem. r"dud, Allah lovu tlllnt who acl juJtI)'.~

(Qur'An: Al-Mumtahinah: 8) BC<jueathing to a particular non Muslim individual iI valid, as previously mention ed; however, il is impermissible 10 bequealh 10 di.b .!itvel'S in general. For example, if one bequeaths to Jews Or Christians, in general, Or their poor people, then his bequesl is considered invalid. Similarly, il is impermissible to bequeath anything which must nol be owntd by a non-Muslim 10 a particular disbditver, ,uch a. the Noble Qur'in. a Muslim slave, or arms. Bequeathing to a person yel unborn is permissible. providtd thal the child is either born alive within six monlhs af the time the bequest is made, if the mother has a husband, or is born alivewilhin a period less than four ~ar~ after the bequesl is made if the mother is husbandless. Such fetus legally inherits; Ihereupon, bequealhing to it i~ permissible wilh greater reason. However, if the child is born dead, the bequesl becomes invalid. Nevertheless, a bequest to an unborn child, who has not existed al the time during which the bC<juest i. made, is invalid. For example, if one says, "I bequeath such and such a thing to the child whom this woman will be pregnant wilh: Ihen his bequest is invalid .in he is bequeathing to a nonexislenl person. If the teslator bequeaths a great amount of money for performing Hajj on his behalf, then the bequeathed money should be fully paid for doing as many limes as can be untillhe money is exhausted. But if the be.queathed money is little, then it nlUst be. paid in doing pilgrimage on behalf of Ihe deceased according 10 its amount. Ho~""r, if the lestator stipulates that th" big amount of money he has bequeathed is to be spent in one HP.jj On his behalf, Ihen il mu.t be .pent in one Hajj. for he ha. intended by doing this the benefil of the one perfonning Hajj on his behalf. In such cases. it is not permissible for the executor or an inheritor to perform Haj) on behalf of the deceased, because Ihe testator apparently specified another on. to perform Hajj on his behalf. Bequeathing to anyone who is not capable of posses sing the bequest is inVlllid such as h!'<jutalhing 10 a jinni, an animal or a de~d perroll.

V INHERITANCE

o Needless to say, nothing in the will should bt ",ntrary to Shart' ah (Islamic Law). such os bequeathing to churches or temples of di!;btli~ers and polytheists. Similarly, it is impermissible to bequeath to keeping or lighting graves Or to the gatekeepers of these graves, whether the testator is a Muslim or a disbdi~er. Shaykhul-Islim Tbn Taymiyah said:

"If a Jewish or a Christian ~queaths a portion of Ms property to their templu . then Muslims must inY/.llidate thi5 bequest, bt=u"" they must judge by what Allah has ""vealed, and Allah h/.!J revealed Ihal Muslims mu,t not cooperate in aid of disbtditj, defiance or diso/wdien.;e to AI/nh. Thus. Muslims musl notfulfil! a ~qutsllo placts wherein people disbelieve in Au"h: "
Similarly, it is imp"rmissible to bequeath to publisbing abrogated books such as the Torah and the Gospel, or publishing perverted books such as books of atheism. o It in ne<.:essary wndition forthe validityof a btquestto bt ofkgal money or of utilizing something permissible even if the item bequeathed is something undeliverable, ouch as, a flying bird, an embryo, the milk in th e udder of a milch animal. or something nOl yet existent. For eumple, Wllleone may bequeath the fruits of a tfte forever or for a certain period, one year, for example, or he may btqueath what a certain animal may deliver. In such a case. the bequest is for the legatee only wh en such ino:istent thing materializes. However, if such ino:istent thing does not materialize. then the bequest is considered invalid, for in such case there is no bequeathed item in fact. o Among things that may bt beqo""thed is something or someone unknown such as bequeathing an unknown animal. III such a =, the legatee i.'l given anything by that means, in reality or according to custom . If the testator bequeaths one-third of his estate, and after making his bequest he gets more money, then this o:t ra money must bt included ill his bequest. This is becao se. the on e- third is considered from the entire property owned by the testator at the time of his death . If the bequeathed property is damaged before or after the death of the testator, then the bequest is considered invalid. and the legatee's right is terminate<!, due to the damage caused to the bequeathed item. o If the testator doe. not define the amount of the bequeathed item such as bequeathing a share from hi. mon ey, then this share i. to be set as one sixth. This is becau~, in the Arabic language. a share indicates

Ch'pr 1: Will>

one-sixth. This is the opinion of' AI! Ibn Abo.lllib, and' Abdullah [bn Mas' CId in this regard. In addition, one-sixt h is th e least prescribed sha",; th e",fore, it is referred to in indicating the undefined bequeathed share. If a testator bequeaths some of his property to a legatee, and he has not spedfied the amount of the bequeathed property, then the inheritor is to give the legatee any amount of money, since the word ..,m e~ linguistically and legally, does not imply any specific amount. So, the word "..,me" can refer to anything that ~ conside",d property, and whatever is not considered a pro!",rty does not fulfill th e bequest.

Rulings Related to the Executor

The executor is the person who is appointed by the testator to dispose of the estate after the testator dies. That is to say, the necutor is in charge of all that the testator has been in charge of during his life. So, the bequest executor is the testator's deputy . Accepting this deputyship (Le. to be the executor) is desirable, and is considet"(d an act of wO[1;h ip by whi~h on e at! aim nearness to Allah, Yet, this deputyship ~ permi"ible only for the on e who has the capacity and the honesty to undertake the bequest. Allah, Exalted be He, say"
".And coolUrate in righttousneJS Ilnd piety." (Qur'an: Al-Ma'idah: 2)

The Messenger of Allah (PBUH) said:

... AlIllh help. a person so long as the person helps his (Mmi;",) brother."'"

Also. th e Prophet's Companions U&W to a"igo deputie& to dispo~ of their properties after their death. To illustrate, a group of the Prophds Companions appointed Az-Zubayr Ibnul-' AwwJm to be their executo r," Abu ' Ubaydah Ibnul Jarr~h appointed' Um ar lbnul-Khauab as the executor of his will, "" and 'Umar lbnu[ -KhaUAb appointed his daughter liaf~ah " (may A1[ah be pleased with her) as his executor, and also assigned the eldest of his sons to take over her position successively after her. AI for the one who has not the capacity to properly undertake the beque&t or feels that he might waste it, then it is impermissible for him IQ accepl thi& respon~ibility,

V IN HERITANCE

The eIttUIOr of Ihe ~ue. t mll$l ~ a Muslim. l5;1 is impenni1Sible to Ippoint. non Muslim to ~ an executor of I will. Moreover. the exrcutor mu SI be legally .. ccount~ble. for it is not val id to appoinl a little boy. an ins.ne or . foolish (or weakmi nded) person as execut ors of wilb. beeiU" they are not capable of undertaking guardianship '"'SponJi biliti e,. Yel. one may appoint. boy to be t he executor WMn that boy reachts 1e-gaJ majority, a, the Prophet (PBUH) toid concerning the Banle of Mu~ah, when he appointed Zayd as the commander ofthe Muslim army:

~If Zllyd i5 marryml, '" 'far iJ lulm uwr Iris /'(ni/iu". Appointing a female uoxutor is(onsidCTtd valid, providffi thl t sm has th e ability 10 undertah the ~u est I'<'sponsibHilies. That is becau,e Uma. ibnul Kh~Uib appointed his daughter l:iaf~h as the execulOT of his wi ll . MortOver,. WO man Un be I legal witness; hence. !he can be appointw U In UtcUlOr of a will.
11 is also valid 1 appoim an executor who cannot pnctiu the wor k 0 by himself, prov ided that he is of $OUnd reuoning, and can appoint

another honest one 10 help him. [n add ition, it is valid

appoint mol'<' than one exe<:Ulor. whether they are appointed by the testalor at the sam e time or one after anOlher. If the testator appoints more than one (l);f'<;utor. then they shou ld manage the bequest colle<:tively. Each exec utor should not act independently of the other exe,utorh), I.e. the ir acts procd (rom the decision of th ... group. If one of them dies or is absent, then those in aut hority ""' to appoint another one in$t"ld. who m USI be ("pabk of lmde rtaking the responsibility.
10

Appointing an eXf'<;utor of the ~ue$t 1$ considered valid if the execu tor accepts th is rl'sp<>nsibility wh ile the lestator is n ill alive or after his death . MOl'<'over, both the bequ est e~utor and the testator have the right 10 ca ncel th iS appointmen t whenever they wish I.e. before or afte r the te5talor. death . This is becauK the neculor i' just a dq>llty. It is impt'nnissibk for !he ""quest executor to .ppgint another executor unless the testator l uthorins the exOXU to appoint whomever he lor chooses as executor of the ~""'" The Items in the will muu be known and defined iI<l the exc<: utor of the wlll can uphold and dispoK

of IheSt'! ltem ~,

Ch.p, 2, Will,

o The testator must have the legal authority to dis?Ose of whatever he be queaths in his will, such "" paying a debt, distributing the bequeathrd thint looking after the welfsl"<' of his children, and so forth. Conse quently, the bequest eumtor undertakes the bequest according to permission from the testator. Thus, as in the case of deputy.hip, the bequest executor cannot dispose of anything which the testator d""s not have the legal authority to dispose of. Morwver, the testator is the original owner and the bequest executor is his deputy; consequently. the deputy ~ not OWn what the original owner d""s not actually possess. In brief, it is invalid for the testator to bequeath what he does not really own, such as the case wh erein a woman testator appoints someone as the guardian of her childl"<'n, this appointment is considel"<'d invalid since guardianship is only for the fathu. o The authority of the executor of the will is limited to what the testator has sp"cified i.e. if the executor is appointed by the testator to pay his debts, then he d",,! not have the legal right to act as the guardian of the children. Thus,like the deputy, the execntor's duty as an executor of the will is limited to what the testator has authorized him to do. o It is valid forthe bequest executor to be a Muslim ifthe testator is a non Muslim. provided that the testator's estate does not include anything legally prohibited. So, if the testator's estate includes what is forbidden such as liquor or swine, then this appointment (the appointment of a Muslim executor) is invalid. That is because it is impermissible for a Muslim to be in charge of such prohibited things . If the testator says to the executor. for example, "\ authorize you to distribute the bequeathed third (of my property) as you wish: Or "I authorize you to spend the bequeathed third in charity among whomever you chex>se," then it is imp"rmissible for the executor to take anything of this mon~y for himself, be\:aUSl: the testator has not permitkd this. More<)ver, it is not p"rmissible for the necutor to give his children or his heirs anything from this money, because in this case he is more likely to be biased toward them. If SOmeOne dies in a place whel"<' there is no governor or guardian, such as some<)ne dies in a desert, then it is permissible for one of those who al"<' present to manage his estate, ;;nd do what is appropriate such", selling his estate and the like. That is because it is a state of nec=ity, for if his estate is left, it will be spoiled, and protect ing that person's estate is a collective duty. It is worth mentioning that funeral exp"nses, in such a case, al"<' to be paid from the estate of the d~ased.

Y INHERITANCE

Endnotes
I Ii>n M1;an (271)9) 13/3(8), Aj.Bayh"'ll (12571) (6I44tj and A<H)liraqutnl (4245) 1 4/85). 2 A1-Bukh.irl (2738) 15/436J and Muslim (4180) 161771. 31he Lawgi>=of Sharl 'oh (1slMnic Law) is Allah, !lulled be He; Ihelenn an rrlrr to tn. PropheI (PBUH) os lie ~ ordained but whOI ..... """,oIed to him by AlWL 4 ' Abdur.Rattiq (16363) 1 ~166]. A >im il..r b.ndith n."",t<d by o..tJdah; AI-&yh"'ll ( 12574) (6I442) . nd lbn AIXI Shoybah (30909) (61228). 5 'Abdur-Ramq (16361) (9166] and Al -Ilayhaql (12576) (6/4(2 ]. 6 A1Bukh.irt (2743) 15/452 ] .nd Muslim (4 1'U) 16185 1. 7 Abii D:lwiId (3565) (31527): At TIrmidhi (2115) (lJ433 ) . nd Ibn Mlljah (2714) 13131 I].

a""

Wo"

8 Mmawd,;" (continuously =ur .. nt) b<>dllh i. a biuJlrh rq><>tIrd by o!uge numb<.- of narnlon whoot agrt<m<'!1t upon telling. lit i< ioconceivIDk (tbi< cor>dition mu" be met in the enti .. dtain from tile beginning 10 the end). 9 Sa: the footnote in Ar.R<I"'lI A/Murloi"
10 AIBukh1rl (1295) (1/210) ilIld Muslim (4185) 16179]. 11 Sa: Ihe footnote in ~r-R<l"'IIItI-Mutbi., 12 Ad-Diriml (3072) 121862J: Ibn AM Shaybah (30937) (6J230] and 'Abdur-Rattiq
(16352)(9/63!-

13 Ab<) D:lwM (2867) 1 311951: At-Tirmidh! (2122) [4/431) and loo Ml;ah (271)4) (3/305). 14 Ad-Dlnquinl (4~9) ]4/86). And AI .Rayhaqi (12587) (6J444). Alllayt..q! reponrd it in m<Ujil' form of /wdilh (12586), . AbdurRamq (16456) 1 9/881: Ihn Ab<) Shaybab
(3(927) [612291 and Ad.D:lraqujn! (4249) 1 4/86(, 15 AIBukhlrl (l295) [3/2101 and Mus! im (f18S) 1 61791 . 16 ' Abdur.1Wziq (16371) [9/68 ]. 17 Sa: thdootnot. in )Jr-R.:Iwd It/Mutbi"' 18 'Awl: An inc ..... in ,lie number of oh . ... and a de< ..... in llIeir amounts according to the deoerving parties. 19 Ad-D1raqu.Ln! in hi< book of s"nul1 16/460]: AdDirim! (3094) (2I116710nd loo At>Q sn.yt>ah (J(I795) (61217]. 20 Allmad (595) 111801: ,0.1-TIrmidh! (1127) (41435 ] and Ibn Ml j. h (2715) (3/311]. 21 AI .Bukhir1 (6699) (lll71 I I. 22 Al-Bukhlrl (886) 121480]. 23 AIBukh1rl (2660) ISJ2861 and Muo.lim (2]21) (4/90J24 Ab<) mWlld (3180) 1218851. A1-BoyMqi (126.50) (6/4591. Abdur.1Wili[ (l93) (10l3,JI and Jbn ,0.1>1:1 Sh.yb.oh (3075-1) 16/213J. 25 Sa: tile footnot< in :-'r-R<lwd A/-Murl>i" 26 MuoIim (2699). 27 Ibn Abii Shaybah (>089'1) (6/2271. 28 Ibn Ab(l Shaybah (4261) 1716391. 29 AdDl.riml (J17'il) !21S]. Ad-D!ta<J.Ilnl (437'i1) 1311771: 5.1so Ibn AbIi Sb.yt>ah (J076J) 16J21~ ] . 30 AI-lIukhirl (4261) 1716J9].

CHAPTER

Inheritance: Rulings
The iisu( of inheritance is of ; fundamental importance. The Prophel (PBU H) encouraged Mullims 1 learn the rules of inherita nce and leach Ih,"", 0 10 otMn. is he (PBUH) said;

u"rn the rules of innuirallce and mull thtm fa OfhttJ fo~ Ihey arl'

halfoflmowkdge and they IIrt liable 10 he forgotfen, /ksidl!$, they " ....
rhefirsr (branch a/know/tdff) 10 be rakeeM away from my nalion,-'
(Related by Ibn Mijah)

In . noth .... vn1ion, he (PBU H) ~id:

"I,,,,, " morllll /lM knowkdgt will be tah .. aWGy ond mills will until (W.... would~) two fJDWI's who would differ "bour .. rau "'! iMmt.."" rlnd ""'lW' find "")'OM la gillfl Q jwJ~nt conar";"g ;1:'
QP~Qr

(Related by AI-Tirmidh! l nd AI_H1kim)

'"
guarant~

V INHERITANCE

N<ikss to Ay. what the Prophet (PBUH) said has happmed; Ihis branch of Shilr/'ah (Warnic Law) hu been ignored and forgonen; it" n~1y taught

in mosques or in Muslims' K hool! except through very insufficient studies in

some educational instit ... ti ons., which neith er give the , ,,,fident knowledge nor
its survival. Thus. Muslim$ lhou ld set to renew this branch of SMrt '<!h (Islamic Law), and ~ it in mGSqutS. K hooIs and uniwrslties, for they ne in dire nd olthis knowledge. and ,Iso !hey will be held rapont.ible for it Mo~. it is Slated that the Prophet (PBUH) Rid;

"(Religious) kno ...ltdge has tfun: cllftgories; I,"ything elst is extTIJ; a pruist YffH'. or IIn established Su"nolz (Prophtlic Traditicm), or a firm rule ()J /n/ztTila"ct.-'
ah 'Urna. Ibnul-Khanib (may AU be pleased with him) said:

"u.un the ruks of inMritanct. fo r they "R' part ofyour rrligion....

Also. Abdulll h [00 Mu ' Qd (may Allah be pleaKd with him) said:

Whoewf reads the (Noble) Qurltn ,nould /tllm Ihe rules 0/ i/Thm/om;"."
The rule. of inhcrita n' r have probahly bern refer..w. to u ~half of kno wled~' in the hadlt/, ~ported from the Prophet (PBUH), hecau5<' they
Include IllOIit of the ilbmic rulings that h~ to do with human beings in the state of death. and the OIhcr remaining ruHngJ are concerned with human life, It u abu said thal the rules of inherilanu are iD caJJed (le. ~balfofknowledgt") !>aUK an human ~ ngs are in ""ed of them. Actually, there are many reasons for merring tQ the rules of inheritance that way, the importanl of which is Ihal il encourages .,.... 10 '\udy the rules of inhrrilan. The law$ of inheritaIl(( ~fer to the shares aUotte.:l to legal heir! by the Noble Qur'~n. In other words, they are the prescribed shares of the estate which HUO bc. given to thOle who deserve them. Th e laws ofinheritanudeal with the correct distribution of the wealth of a deaued person. 1"hc. study of rules Qf inheritanoe Is the gudy of estate divUion, their juristic rulings, and the aJcub,tions for di.5tn"buling shares. When a MUllim dies. five righl5 are deduc:ted from his rstate. The firlot thing taken from his property is the apenlltS of preparing his body for being buried such as tht co.t of the shroud, washing his body and the washer's fee, preparing his gravt, and SO forth. Then, the rights he owes an: to be paJa ,

241
w~t~r thq are r ighll of AJI~h. Exalted ~ He, (11I,h u u.W, apiatiOfls, VOWS or obligatory Hajj), 0<' debu to people. After these npenSt:$ Ire de<lucted, hi s ~uest mwl be fu]f,J led, provided that il does nOl exceed one third of his estale, as previously menti oned, After that, the remaining property is d ivided between his legal hei rs. acco rding to the law. of inh(Tilance. Fin~lly, Ihe ",si of t~ property, iflh e", is any, il for agnate ",lalive$,' as will bot explaintd later.

Changing the laws of inherilance, which are decrud by Allah. is imper missible aod is cooside..w an lel of dilbelid'. fo r ADah , Eulttd be He. says: - TIteu an tIu /imill fld by/ A /lA h, anJ w!toewroWyf AIWI fUIJ Hi. MtslCngn will NIUl",lr'N b,. Him 'oprderll flrI P<l.rodi.e/ unde~ which riwrI flow, alndiltg elernp/I,. ,h,",lrI; PM Ill.. , Is the gretJt p!tp;nmlm'. IlIId ",haew:r d;so/Jeyl Allah and His Mu.trlgn' arid trIJrI'gnuu His li",lts - He will pur him Imo Iht Fin la ,,&i.u elt,,"dl,. ,htrtln, ....d he will ," .. w "lIumilUlling p""id"n,n,.(Qurln: AnNi""': 1314 ) With r~ to theso: vnws, Imlm Aoh-Sb.awUnl (may Allah ha..., mercy o n him) stated in his ~b of l~ Qur'ln:

'71tt word 'firut', ;11 thi af"'tmtlltj"ntd ""rst. refors 10 Ihe laws of inherilanct which are diKusstd in Iht IWO ""rstS prtuding 'htu lwo
vmes menlioned above. A/lnh, Exalttd bt He, refers 10 rht5e AS 'I/miV btCaUS f il is im~rmiS$iblt fo exceed Ihe IimllS of ,heu rult.s or violate Ihem. The phrase : . "nd wh""",,~ I>heyt AIUzh ..nd HIJ Muunger.. .' mt<lllS: whonon ohq> Allah ond His Mt$Senp in applying ,ht laws of Ufalt division or any Illhtr Islami' .... Iings, w implW by the genual mtaning of the ph~ ~ .. wilJ N ..dmillttl by Him ,,, prdem fin P,mtdiu/ un,u,r whid! ri~", flow .. : After Ihal, Imim Aoh ShawUnl added;

In..,.

-It is AI~o related by fbn Mdjah on the authority uf Anas thal the Messenger of Allah (PBUH) said, 'If all)l<lM di~inhtrit~ his heir, Allah will dtprj~ him from his mOl", in Pamdi$t on 'he DAy of Ruurredjon: -"
Thus. whoever changes Iny of Ihe laws of in herillnce and perverts them ($ueh;os allowing an ilkg;d hn r to ;nh~rit. disin~riling legal hcir o rdepriving him of pm ofhis dare) will be nil into the Fill' foll'ver. Also, if anyone, for txamplr, make. mal" and female,; rqual wh~n divkl.ing an " tate (as applied in some nonMu~lim kgal system$). he thus contradicu Allah's Law, a~ He,

V INHERITANCE

Exalted bt H~, has n'v~aled in His Book that a male is to inherit a p<lrtion equal to that of two females. Such a person is d~med a disbeliever and will be cast into the Fin' to abid~ eternally then'in unless he repents to Allah hefo .... he dies.
People of the Pre -Islamic Period of Ignorance (AI-JJhiliyyah) used to

disinherit women and child",n; only adult males, who can ride horses and hold weapons, we.... ~ntitled to inherit. Then, the Islamic .... ligion came to invalidate this system, and All~h, Exalted be He, sa id,
men is a .hart' I)f what the /Iflr,n/$ and dl>5f! rel4ti ...... leave, and for women iJ a share of what the purent. and dl>5f! rel4tive.
~Far

le"VII, be it little or much _

"n obligatory .h"re.

(Qur'an: An -Nisa': 7) T his verse abolish e., th~ system that used to be applied before Islam when women and child .... n used to be disinherited, The following two verses also abolish the contemp<lrary systems that treat males and females on an .qual footing, with regard to the shares of inheritance. This is considered an act of OPP'lSing Allah, Exalted be He, and His Messenger (PBUH) and tnmsgn'ssing His limits, as Allah says:
~Allah

ill$tnu:1J you """erning your children (i_e, their f'Ortimu

of inheritance); for the malt, wh"t i"'qual to the .ha.., of the two ftmtdn ..." {Qur'an: An-NW': 11)

And He also say"

"... If that "rt both brotht .. and slstt .., the ",,,le will haVII the $h ..reoftwofemale.... ~ (Qur'an: AnNisa: 176)
Th~ PR -Islamic Period of! gnorance (AI-J4hiliyyah) deprive.! women lotal! y

from all th. ir rights in inheritanc .., wnereas, ironicaUy enough, contemporary ignorance nas given ner what .ne legally does nOI dese rve. On the contrary, Islam honors woman and treats her witn ju.tice, giving her all ner legal rights. So, may Allah fight those disbelievers, hypocrite. and atheists, whom Allah, the Almighty, nas described saying;
"They wantto <'Xtlllguim the light ofAI/"h with their mouths, but AI/"h refuu. <'Xcept to perfect His light, "Ithough the dlJlHlievtrs dislike it.H ( Qur'~n: At-Tawbah: 32)

O:apm ); Jnhori.. na:: Rulinp

EndnotH
I tbA M... (2119) 13I31~1 . 1 At Thmldlll (2096) 1011411 ) onc! AI Hlkim (8020. 8021) [4tH })

l Abol OlWlld (2&85) 1)12011 and Ibn Mliah (S4) 1 11~ 11 . 4 Ad Dtriml (2744) [21779[ and Ibn Abol Shaybth (J 1(125) 16J2-411. 5 AdDlriml (215 1) 1218001. 6 Agnate ",Iotlves arc those rtl.ted on or &..0.:.0&<1 from Ihe f~th.r. or m. 1< . ki<. 7100 MIJlh (270J) [J/J04l l nd Ibn Abol Shoybah ('1032) 16J24 21. 8 See: F.uIl..I.QaJI, 1117001.

CHAPTER

Causes of Inheritance and the Legal Inheritors

Inheritance. is the transfer of the legal possess ion of a deceased person to his heir1, accord ing to the law~ of inheritance ordained by Allah.

There are three causes of inheritance:

I. Blood Relationship: Blood ,dation ref'.,rs to the ..,lalion betw,""fl two persons by b irt h ",the r than by marriage. no matter how far or near the relationship is, as long"" nothing or none block.. them from rttdving thei r prescriMd sha"" . Anah, Exaltro ~ He, '"-Y"

... Bllt t/1(JU ()f /blood]

r~lat;or..hip

inheritance/ ;n th e du,u of A.llah,H

collateral
..,lati~e$.

au m<lre entitled (to (Qur'ln: AI-AnfM: 75)

Blood rdationships include the fordather., the offspring and the

The paternal forefathers indude the father, the

'"

V INHERITANCE

paternal grandfather and so forth in ascending lineage, who are

linked through males to a common anc",.tor. The offspring include the son, the srandson by the son and so forth in desandinglineage.

The collateral relatives include the brothers and their children. no

matter how far down they descend, as well as pate-mol undes, sons of pate-mal uncles (cousins), and SO forth in a de-sanding lineage '.

2. Marriage: The marriage must be according to a oorrt (valid) contract of marriage. even if there is no -consummation and the two
spouses have not yet met in privacy. This is due to the statement of Allah, Exalt ed be He:
"And for you i. half uf what your wiVl's leavr if th~y h .."" 1UJ chUd. Bul if thq havr n child, for you i. (me fourth of what they

fellVI', IIft"r any bequeJI!hey {may hllW!] made or debt. Andfor them {i,e, the wives}" "ne fourth, ,, (Qurln: An -Nis~.': 12)
The two sp(JUses inherit from each othu according to the aforesaid verse, and also in the case if a revocable divorce is pronounced as long as the wOman i, still in the waiting period, for, during th e waiting period, the woman is still a legal wife, The phrase "the corrc:ct contract of marriage~ ""eludes the incorre<:t contracts of marriage, for the right of inherita nce arises from only a valid contract of marriage, and the incorrect marriage does not affect the rulings on inheritance,

3, Tbe waId' (tbe freed slave's loyalty by virtue of emancipation): [t is a relationship between the mastu and the manumitted slave, in which the former inherits any property the latter may acquire due to the former's favor done to the la!!er. The inheritance i. from only one side, j,e. if the manumitted slave dies. the emancipator inherits from him, and not vice versa. If the emanc ipator dies, th en his universa l heirs by oneself, and no! co-universal heirs, inherit from this manumilled slave. To illustrate, the Prophet (PBUH) says.

"The waM' is a bond like that a/kinship, '

(Related by Ibn Hibb~n in hi. Authmtic Book of HadUh, and also related and deemed fQbrlI (authentic) by AI-HlkimJ Thus. he (PBUH) made the walll' similar to blood relationships. Therc:fore, the waM' is a cau~ for inheritance like blood relation.hips, according to the consensu~ of Muslim scholars. Moreover, it is relaled in the Two SalIilI" that the Prophet (PBUH) said:

'Vtrily, the walJ' is/or th e emancipator."

247

Inheritors According to Gender

Inh~ritors ar~ divid~d

into male and female heirs . Male heics are ten:

The son, the son of the son, and so froth in a descending male lineage, for Allah, Exalted be He, says:
"Allah jm"u(/s you cOllctTning your chlld""n [i.e. their portian, of inheritallu/, far the male, what is equal/o thesho"" of the two fnntJ/u .. (Qur1n: An-Nis!': 11)
H

The g",ndson is the same as the son: Ihis is due to Allah's statement: "0 child",," af Adam ...
H

(Qur'an: AI_A' raf: 26)

And also Allah, Exalted be He, says:

HO Child""lI of I,rael ...H

(Qur'an: Al-Baqarah: 40)

The father, the paternal grandfather, and any forefath ers of the paternal grandfath er. This is because Allah, halted be He, says:
". And for one', porents, to each ,me of them i, a sixth ofhi$ estate . " (Qur'~n: An NisA': 11)

MOTeOver. th e paternal grandfather is the same as the father, for the Prophet (PBUH) judges that he inherits one-sjxth of the estate, the same as the father-.

The brother, whether he is a full or half brothe r. This is because Allah,

halted be He, says:
"They ""quut from you 0 [ltgol/ ruling. Soy, 'Alloh givu you I' ruling conunI ing one hayiIIg lIeit her df$(flldon IS nor oscendant. [I" heirs].' ifI' mtJH diu, I~ving liD child but {allly1 0 sister, she will have half of what he left. And he inherit. from her if she {diuiUUl/ hI'S no chi/d...H (Qur'an: AnNisf: 176)

This vu,," refers to broth~rs who have different mothers. As for tho,," who have the same mother. but have diffe",nt fathers, Allah, Exalted be He, says:
": . Alld if 0 mall or woman leavu ""ilker ascelldollts nOr deJeelldollts but ha, a brother or a sister, thell for eoeh alle of themisasirth ... (Qurln: An-NIsa': 12)
H

H.

V INH ERITANCE

The son of a full brother or the son of a half brother from the
same father; itS for the son of the brother who has the same mother of the deceas~d. but a different father. he d",," not inherit ~callS<' he is one of the blood relatives.

The father's full brother (paternal uncle) and the father's baH brother from the same father and the son of tbe aforesaid patema.l uncle (cousin) and s.o forth in d escending lineage. However, the father's half brother from different fathen does not inherit from the detemlL To iUp~lrale, the PTQphel (PBUH) said:
Give the shares of tht inheritanu (prescribed ill the Qur<ln) ID those who are entitled 10 receive them. Then whatever remlll"" should be

given 10 the dosest male relative of the deceased."'

The husband, for Allah. Ex.lted b.. He, says:
~And for you

i& hQI! of what your wives le/IVe","

(Qur'An: An-Nisa': 12) The emancipator who has the right of the waUl' Or his heirs, ' fOT the Prophet (PBUH) said:
"'I'M wal4' (i.t. loyalty by virtut of emanciprllion) ;s a bond Iik that of btuhip."'

He (PBUH) said also:

Veril)\ Ihe wai<f is for the emancipator."Female Inherilor.s are Seven:

The daughter, the daughter of the son (granddaughter) and any

female grandchildren descending from male lineag . To illustrate,

Allah, Exalted be He, says;

",, /lllh imtruc/s youCC/ ..ctrningyourdrlldnn {i.t. Ihtlrporllon5 of I..herlta ..cej: for the ma/e, what 1$ equal 10 Ihe share of the lWO ftmalu. But If Ihen art {only] daughl"" two or more, for them is lwo Ihirds of on":' U IIlI". And lfthere i. only one,for htrishIJ/j. " (Qur~n :An-Nisa': 11)
The mother and the grandmother, for Allah, Exalted be He, says:

": .. Bul if h.. hlUl ..a childre .. and tlte parnlu rala....} inherit /ram Itim, then /rIr his matlt..,. i. one third. And ifltt had brotlttn {and! (J1"mtmJ,flWhismotlterisasixlh ...~ (Qur'An: An-NisA': 11)

Chapter ~ : Gotu"",

of Inhcri "lI1c< .nd the Lcgollnhcrit<>n

Buraydah (may Allah Ix pl~asM with him) narrateda marfu . (traceable) tladllh stating that the Prophet (PBUH) said , "Tht grandmolher (Of the tUu<ljed) is to bt! giytn sixth (of the inheritance) iflhe mOlher is nol aliye."' (Rdated by Abil The sister, He. says:
~, .. A.nd
D~wiid)

wheth~r

a full,i,ter o r a half ,ist~r for Allah, Exalted be

a ml1n or ",oman le~vu neither <ucendants nor descendant. /tut has a brother or a .i,tu, then for tach ont of them is l1.ixth, .. ~ (Qur'an: AnNis~: 12)

if

Allah also says:

... If a mon die., kilnng no child but {only] a .i.ta, .he wi/J ha..., half of ,.hat Iu left. And ht inherit. from her if she (dies and] has n" child, But if thtrt: art: tw" sist"" (ar mart:], they ",ill ha..., two thinU of what he 141.. : (Qurln: An Nis;\': 176)

The wife (ie. the widow) , for Allah, Exalted bt He. says:

... And for them {i.e. the wi\1eJJ ;6 ont fourth ..."
(Qur'an:
AnNis~':

12)

The femaJe emancipator (inherits from the slave she has freed due to the right of the wold) as the Prophet (PBUH) said:

"Vuil)l Ihe wl1ld' isfor the emancipator."

Th" aforesaid list generally covers the num 1><:r of possible male and female inheritors, but in detail, they are f'ift~n male inheritors and ten female inheritors, One may che<;i< the references of Shari"ah (Islamic Law) for more details in this rega rd; and Allah, Exalted 1><: H l<now, 1><:,1.

Types of Inheritors According to Their Shares of Inheritance

Inh~ritors

according to th~ir mar<:' of inberitanc~ ar<: of thrtt categories:

Those entitled to specified pr<:sc ril:>td shares that do not incr<:a~ unless through the nuld" nor decrease unless througb the' awl (r<:duction of the bei,,' shar<:'). Agnate relatives: Those whose ,hares of inheritane<: ar<: not defitl~d Blood relative!: They ar<: to inherit when there i! non~ entitled to prescribed ,hues except for the spouses - and when there ;ire no igrtllle heirs.

"0

V INHERITANCE

Those entitled to prescribc.d .ha"" a"" ten: spouses, parents, paternal

grandfathor, daughters, daughters of th e son, sisters (whether full sisters or half ,iste,,), and brothers and s;,t,,1'S who have the same mother. Each One of tho"" ent itled to p",scribed ,har~ will be explained in detail,

Endnotes
I S: 11>0 footnote in ilrwd .'.jMurb; '. 2 AI.!iikim (807 1) [414901. rbn Hibban (4950) 11 1/325J, AIBayhaql (2 143)) (10149<1 ); see 01.., AI -Bukhirl (25)5) (SJ206) .nd Mu,lim (3767) [SOS? ]. J The Twu Sallla" Th. Tw<> Auth<ntic Book. <>f At Bukhlr1 and Mu.rim . 41\.00 Dl wiid (28"") 1311141 and loo M1j.h (Z?n) [lIl18], S AlBukMrl (67n) 1121HJ and M",]im (41 17) [6/YlJ. 6 Tb;, me.n, that if the m.numiue<! ;1... din. Ih< <mancipot<>r or hi. inherito ...... to inherit the manumitt. d .. I"" due to the right" the _16' (th. freed ".ve'.loyalty by virtue of emancip. tion). 7 AI H!.kim (S07 1) (41(90] . Hm Hibb:tn (4950) ! 1l1l25), A)&yh.ql (214)3) (IOI494 j; .... . 40 AIl\ukhArI (25)5) ]51206].,,<1 Muslim (3767) (51J.87]. g AI Bukhlir! (2535) (51206) and Muslim (3767) (51387).

9 Abu DlwUd (2895) 13/2014).

I01h. raJd, It ;, the di.tribution of tt..: rnnaining portion of ..tote . mong the prnoribed
IKif">. To iUu,t",t if 50IIlrlhing .. main. of the fter the prescribed hoi .. take toor ohar ....nd the .. ;. no O8n . .. h.irto take over the remaining portion.lhis portion i. to hc rcdimibutl amon.g the prncribtd heirs, ch .ccording to his sh.a ....

.".t

CHAPTER

Inheritance of Spouses

Tne husband inherits onc-half the eSlate if th e deceased wife do<" not have a child (male or female; even if from another husband), or a grandc hild by her son. However, the husband inherits one-fourth if th e deceased wife has a child, or a grandchild by he r son. To illustrate, Allah, Exalted be He. says:
HAnd for y<>u i. half of ",hat your wiV<'. lrove if they hav" no chilli. But ifthq hav~ a child, for you. is one fourth of what they Itave, after any ~'1uSt thq {may have] madeordebt... (Qu r'1n: An-Nisi' : 12)
H

The wife (or the wives loget her) in heri Is une- fourth t he est at e ift he d~.a",d

husba nd does not have a child (male Or female; even if from another wife), or a grandchild by his snn. She (or the wives togelh er) inherits one-eighth if the dece"",d husband has a child or a grandchi ld by his son. To i1lustrat~, Aliah, Exalted bt Ht, says:

v INHERITANCE "; . AJwIfor Ihmo //.~. flu wn-aJ is ......{our!" If1"" k,",,, "" mifd. B..! if,... .. /""W <I c/r,/4, IhnI for thtm 11 "" "/g"!" of """111 ,... .. kllW, o.fter btquts! ro" /ltUly"o.""J ...o.dt Or 4"b!.-

0",

(Qur'~n:

An N i51': \2)

CHAPTER

Inheritance of Fathers and Paternal Grandfathers

Th~

father of the dec~ased Or th~ paternal grandfather (in case Ih", fath er

is dead) is entitled to inherit one- sixth of the estate a.'I a p""scri\>nl shan: if the

decea",d h ... a "'0 or a grandson by hi< son. Thil; is because Allah, Exalted be He, say"
.... And for <lilt', pO/rm/s, to tllch "".. /If rlwn is a ,ixth at IIi, enatt Iflu Itftddld,..,,, ... ~ (Qur'An: An_Nis!': 11 )

The father ofth., deceased (or the paternal grandfath er in case the father is dud) inherits only by virtue of agnation if the deceased has no child, or a grandchild by his son. This is acco rding 10 the noble \'er", that state.:
N, Bllt if M had 110 chiUJ,."" and the parent. (Went ) inherit from him, tlumfor his mother is /llIe tl!i,d. ~ (Qur'~n: An-Nill:\.': 11)

V INHERITANCE In this V~=, Allah, Exalted be He, entitles the inheritance to both pa",nts; the moth~r inherits one-third of the estate whereas the share of the father is not defined. The",fo"" th~ father gets whatever ",mains of the estate by "Virtue of agnation. The filther (or the pat~rnal grandfather in case the father is dead) inherit.! by "Virtu~ of both pres<:ribed <ha", and agnation if the deceased has a daughter, or agranddaughter by his son. The Prophet (PBUH) says:

"Giw the sh~rf'S of the inheritance (prescribtd in the Qur~n) to tho,t who ~re entitled to receive them. Then whattl'tr remains should be give" to the closest mak relative of the deceased."'
That is to say, the rest of the inheritance goes to the closest male relati-ve of the deceased namely the father, who is considered the cles<:st male after the SOn and the grandson. To sum up. the father has thr~ Cases: The first: The father inherits only by "Virtue of prescribed <han: if the deceased has a wn, Or a grandson by his son, and so forth in a descending lineage. The second: The father inh erits only by "Virtue of agnation in case the deceased has no son, or a grandson by his son, and so forth in a dew.:nding lineage. The third: The father inherits by "Virtue of both p",s.;:ribed shan: and agnation in case the doceased has a daughter, or a daughter of his son. The paternal grandfather is the same as the father in the abo"V.. thn:e cases as mentioned in the Quran and the Sunnah (Prophetic Tradition) in case the father is dead. Howe"Ver, the paternal grandfather has an additional fourth case, namdy if the deceased has full broth ers, or half brothers from the father's side. Scholars have two diffe",nt opinions in this regard. T he first opinion is that pa ternal grandfather of the doceased equally sha",s the estate with the doceased's brother. without pn:venting them from re( ei"Ving their <ha"" and then they all equally shan: the rema ining .. tate by virtue of agnation according to cenain known rules in this regard. This opinion i. based on the fact that the paternal grandfather and the brothers of the deceased a", equally agnate n:lati~s of the doceased's father, who is already dead; the deceased's paternal grnndfather is his father, and the deceased's brot hers are his

Ch.p"" 6, ' nt..riunc< of F1lhm . 00 Po"'rn.' C .... oof"hc,.,

sons. Therefore, the dec.a""d's paternal grandfather and the decea~d's brothers share together the estMe and the paternal grandfather is to be treatNlas anyone of them regarding inheritance. This is the opinion of a group of the Prophet's Companions such as 'All Tbn AM l;1.lib, Tbn Mas' Od, Zayd Tbn TMbit, and it is also the opinion of Imlm Malik, Imam Ash-ShMi';, th e two DiSCiples of Im1m Abii Hanlfab, ' and th., wen-known opinion reported to have been maintained by Imlm Ahmad in this regard. They reached this opinion on the b'ISis of many ev;dences, ijtihad,) and analogical deductions, which are mentionNl in the elaboralive main volumes on inheritanc .
The second opinion is that the existenc. of the paternal grandfather pr.,vents the de<:ea",d's brothers from inheritance just as the existence of the father does. This is the opinion of Abii Bakr N.-Siddiq, Ibn 'AbMs, and Tbn A.-Zubayr, It is also reported to have been adopted by 'VthOlm Ibn 'Aaan, . A:ishah. Ubayy Ibn Ka 'b, I~bir Tbn 'Abdulllh and oth ers. It is also the opinion maintained by Tm~m AbClJjanifah, and it is on e ofth. opinions reportNl to have been adopted by Imlm Abmad. Moreover, this opinion is the on e maintained by Shaykhul !slim Ibn Taymiyah, Ibnul-QaYYlm, and Sheikh Muhammad Ibn 'Abdul-WahMb (may Allah have mercy On them all). They have based th.ir opinion on many proofs, and this is the prepo nderant one compared to the first, and Allah knows best.

Endnotes
t AI-Bukhtrl (6732) [12/ t41 ond Mu>!im (41 17) 16/5<11_

2 The two disciples of AbU H. ntf. h m.... nt h~'I"rt' hil two prominent fo))low~1"\: AbCi yw.uf and Muhammad lbnul-l1 ... n A.Ih-Shoyblnl. 3 ij,jhdd (leg.1 "'"$Oning'OO diK",Iion): An i"""pendent judgmenl in legal qunlion, b. ot<! on Iht inl..-prel.Iion and application of It.. Fou. Mund.!ion>; lhe Qur'1n, lh. Prophel" Sunnah, eo"""""u. of ochol . .. and Anal,,&y_

CHAPTER
"

Inheritance of Mothers

The mother of the deceas.ed has three cases regarding inheritance:

The fint cast:: The mother inherits one-.ixth of tbe estate if the d tcuKd has an inheriting desan dan!, such .. a child (male o r female) o, a

grandch ild by the wo, or in case the deceased has two or more siblings, whethu mal.. or females. Th i. i. btcau.<e Anah , Exa lted be He. says,
".. " nd for "ne'. paren tJ, to w ch olle of th~m e.tllte ;fh e left children.. ,"
Then AlI ah .. Y" in th e Same verse:

i. " . ixlh at hIs.

... .. Alld /fhe had brothers md/or "sterol, jor hi' mothu i,

".iJ(th ...~
dl'(taS~d ha~

(Qu r'an: An -Nisl': l l)

The second case: Th e mother in herits one-thi rd o f the e,t.at. if the

neither a de,;ce n d~nt heir, wch. a~ a child or a grn ndchild

Y INHERITANCE

by his son, nOr does

D

h~ have two or more siblings, females. This is becaus.. Almighty Allah says:

wh.th~r mal~

or

But if h .. had ,I<) childre.. arid the /H1re ..ts {a/cme} inherit fro,., hi,." then for his ,.,other is 0 ... third...D

(Qur'1n: AnNis!': 11)

The third case: The mother inherits one-third of the remainder ofthe estate, not l>f the eslate itself, in any of the following two cases:

!fthe deceased is a female and she has left a husband a father and
a mother
If the deceased is a mal~ and h~ ha. left a wife, a father, and a mother These two cases are known as the 'Umariyyatdn' because' Umar IbnulKhallAb bas judged that the mother is to inherit one-third of the remainder of the estate after tru. deceased's spouse recei= his/her share of the estate'. Commenting On th ese two cases.. Shaykhullsl~m Ibn Taymiyah (may Anah have mercy on him) said:
'The opinion judged by 'Umar is the round"t opinion, bewuse Allah, Exalted I>e He, ttllit/OS the mother 10 inherit One third of the estate if the fw<J parents will inherit the d,wased w .. or daughter; Allah says. '.. But if h. had no childre .. a ..d th. pare ..ts {aJone} i"herit from him, th ...for hi. ,.,olh. r i. o .. e third.. : (Qur'an: An -NisA'; 11) After the deUllstd:' ~pou,e reu i""s his/h" p",-,oi!>ed share, the remainder of the estate j. wmidertd the inh"itanc~ of the pa rents; they art to diide it betw", .. them in the same WIly the whole e.tate is dMded between them if the da:l<!lsed has nejth" a descendanr heir nor a .pow. This is jwtlike the ca .. when the da:wsed lea"". ~n unsettled debl ora will; il has 10 be settled first, then the p~rtnt. together share the rem~inder of the estate as one third for the mOlher and the rest forth'fath":

Endnotes
I The 'UrnuriYy<lldn (the Two Ruling. Attribu{.d (o Urn", Ibnul-Khot1;lb), Tow cases of inMritlllU. {M ~,..{ of which invol..,. hu.b.and f.{M, &nd mother of {he dcc ...J: {he .. rond involves I wif I f.th.,. &nd mother. 2 AI-Soyhaql (J 2299) [60'373 1. Ad_Dlriml (2756) 12/8031 . Abdur.Ra.uq (t901 S) [t0l252) and Jbn Ab<! Sh.yb~ h (3 [(}H) 1612431 .

CHAPTER

Inheritance of Grandmothers
The grand mother meant here is the full grandmother, who i. entitled 10 inherit. In other words, il is every grandmother related \0 the deaased through the mothers only. such as the maternal grandmother, her mother, the lauer's mother. etc. 11 is also every grandmoTher related to the deceased

through Ihe fathers only, such as the father's mother, the pattnl.al grandfalhds
mother, and so on. A full grandmother is also the one whose daughTer i. a mother of the father, a mother of the paternal grandfather, or a mother of the palernal grandfather's father. ele. Howe~r, the grandmoth er who i. nOI emitled 10 inherit is the one who son is the mothd. father, or the paternal grandmother's father, etc. Such. grandmother does not inherit u she is regarded as a cognate relative.

In short, the grandmother entitled to inherit is either one of three, The one whose daughter is either the mother Or a maternal grandmother of the dectased; she is rtlated to th~ deceased only through a female lineage

""
Th e one whose
SOn

V INHERITANCE
is oither the father or a paterna! gralldfathu ofth.

de.:eased; she is related to the decea",d only through a male lineage The one whose daughter is a lJKIther of either the father or a paternal
grandfather of the dec=;M

However, the grandmother who is not entitled to inherit is the one whose
$On is the mother's father, or the paternal grandmothds father, etc. In other words, she is the one who has a male child wh""" immediate ancestor and offspring are two females, provided that she is One of them.

that a grandmother is to inherit is derived from the Sunn/lh (Prophnk Tradition) and scholars' consensus. As forth. proofin the Sunnah, it is narrated on the aUlhori!yofQabi~h Iho Dhu'ayb (may Allah be pleased Th.
~idence

with him) that:

iI. grandmothtT "","t 10 AM Bakr asking him for her share of inheritanu. He said, 'Ther~ is nothing prescribed far yall in AlIahs Book (Ihe Qllriln), nor do I know anythingfor yau prescribed in th e SlInnah of the Musenger of Allah (PBUH). Go home until I ask th~ ~(lple. Ht thm asktd the ~()plt. and AI-MlIghinih l/m Shu'bah said, 'f had bun present with the Messenger of AII<ih (PBUH) when he gave agrandmolher ont-sixth oftm estate.' Ab" Bakr said, 'Is there anyone with you (to testify that the Prophet (PBUH) did so)?' Mllhammad Jbn Masiamah stood and u:id the same as AI-Mughirah lbn Shu 'bah had said, So Abu Baler granted her the >ixth. Another grandm other came to . Umar IbnulKhattdb asking him far her share of inheritance. He said. 'No/hing h<l.< been prescribed for you in Allahs Book bUI a sixth (of the estatt). If there are two ofyou, it is ~hared between YOII, bllt whoeva ofyou is the only one left gel> it all.''

(Related by the Five Compile... of Hadllh except An-NasAl, and it is deemed ~bJb (authentic) by AtTirmidhlj
It is also narrated on the authority ofBuraydah who said:

"The Prophet (PBUH) en/illt<! Ih.grandmather to one-sixth of the utate in CUM of Ihe abunce of the mother of the deceased:'
(Related by Abu mwt'ld and deemed ~blb (authentic) by lbnusSakan, Ibn Khuzaymah and Ibnul-JArftd)

Chaprer 8: t"h.ri,.""", of c.; r>ndmothm

The aforementioned t wo iladiths imply that a grandmother has the right to inherit one'iixth though, as Ah(j Bakr A.i.-Siddiq and' Umar Ibnul-Khall1b indicated, there is no ruling for grandmothers in this regard in the Quran, This is beea..... the ruling of inheritance r~arding mothers that is mentioned in the Book of Allah is restricted to the direct mother_ The grandmother can also M called a mother, a~ Almighty Allah, says:
"Prohibitftllo Y"u (for marriage] are y"ur mc>thas,,_~

'"

(Qur'an: An-Nisa': 23) But she is not one of l hose entitled to the prescrib..d shares of inheritance mentioned in Quran. In spite of this, it is the Messenger of Allah (PBUH) who entitled the grandmnther to get one-sixth of the eitate, so her inheritance is confinned by a prooffrorn the Sunnah (Prophetic Tradition). Likewise, a grandmnther's inheritance is confirmed by the consensus of scholars. There is no disagreement among schola.. r~arding the right of inheritance either for the direct maternal grandmother or the direct paternal grandmother; however, they disagree:d concerning other grandmothers. Ibn . AbMs and some scholars entitled grandmothers to inherit however numerous they are, provided they are on the same level of kinship 10 the deceased, ocepl the grandmother whose son ii a noninheriting grandfather of the deceased, such as the mother of mother's father. Some other scholars are of the opinion that only three grandmothers are entitled to inheritance, namely the moth .. of the deceased's moth er, the mother of the deceased's father, and the mother ofthe paternal grandfather of th e deceased. The non- existence of the mother of the deceased (such as bring dead) i. a condition for the grandmother to inherit. This is because the grandmother is related to the deceased through the mother, and the legal principle in this regard states that whoever is related to the deceased through a certain puson is prevented from inheritance by the same person (except in ceMain cases). Scholars unanimously agree: that the mother excludes all grandmothe.. from inheritance.

How Gnutdmothers Inherit

If a grandmother is the only surviving grandmother, with the abs~nce (Le. death) of the mother, she is to inherit one-sixth of the estate as previously stated. However, the opin ion stating that the grandmother, just like the mother, is to get one-third if the deceased has neither a descendant heir nor two or more ' iblings, 1$ irregular and unreliable.

v INHERnANCE In case there are more than one grandmother and they are on the same level of kinship to the de.:eased, they are to equally share one.ixth of the estale as the Prophet's Companions judged in such ca.... The reason for this i. that they are more than one and that the share of the grandmothec{s), which is onesixth, is indep"ndenl and equally dividnl among them, as the re is no male heir who can share them their one-. ixth . hare of the estate. Hence, On e grandmother i. equal to many grandmothers in this case, just like the ruling on the inhoritanee of more than one wife. So, none of such grandmothers is more privileged, as they all are on the sam e level of kinship to the de.:eared. How~er, if one of them is closer to the de.:eared, she is to take the one-sixth of the estate alone, whether she is from the paternal or the maternal s ide. Thus, such a grandmother prevents the other remote grandmothers, as they all are ronsidered mothers sharing the same inh eritance, so if they are more than one but with diffe rent level. of kinship. the inheritance goe. to the closest to the d eceased. The grandmother who i. the father's mother is to inherit despite the existen ce of the fathn. and, likewi... the grandmother who is mother of the father's father is to inherit despite the exi.tence of the father's father (i.e. he r son); thus. she is not excluded by the one though which she is related to the de.:eased. in contrast to the rule that states: Whoever i. relaud to the deued through a ""rtain person is prevented from inheritance by Ihe same person. This is according to the hadUh narrated by Ibn Ma. Ud (may Allah be pleared with him) who said regarding the grandmother and her son ,

' She w"s th efi~st gr"ndmoth er whom the Prophet (PBUH) judged to be giw:" sixth (of the esl"le) despite Ihe fact th"t she had", son who was still "Uw::
(Related by AI- Tirmidh1) The reason behin d this is that the grandmother in this case does not replace the one through whom she i5 related to the dtceu ed in inherit. nce, so .h e is not to be prevented from inheritance in case that perwn exists. Shaykhul_IsU.m Ibn Taymiyah (may Allah have mercy on him) said: "The opinion of thrue who maimain that 'Wh""vtr is rrlaud to the

deu"sed through" u rt,,;n person is prrvented from inherit"nce by the ",me penon: jj iMV<lHd in . ""ry rrspeel, jorWIJrd "nd backward. On Ihe one h"nd. not every on. who is rrlated to the deceased by som~ne is prevented by the latter from inherit"nu. To j[J~stralt, "

263

moterMI MlfbnMMr or 11 sister iJ riot pre"",,1ed from i"heritalJU by the existm~ of the mother. On the other-. iftht dtctllud has a wn who has ditd, tlu lafter s JOn prevtnu the du~ds paternal unch from inheritanct . Likewise, if the dect ased has a brother who has died. the /alttT$ son prevents his patuMI unclt from inheritance. Thtrl! are athtT ullmpln showing thllt Ih. excluslan afa peTlOn from inherilllltCe Clln k Ihrollgh IhevciJtenct ofJOmton' whom Ih. former dqn not ..m.1. /0 lire ~easM. RIIlhn. the TtDl ""son i, lhat whaewr gtts the sIuIrt of .motht r is vcclutkd from inhtritanu fry lhe /all mS/ence, provided Ihe ~lftT is closer in lcinship 10 lire dtuMed. SiIJU IIu gnmdmotlurs rtplace the mother in inheritance in ca.t tht lalter is absent (i.t. d.lld), they art .xcluded fro," inh.ritance by th e "'other. lXistencl, .ven if they do not rtlar. th. "'olher 10 the dtctllsed. And Allah knows 001."

Endnotes
I AbO DaWOd ( Z3~ (lIZ U (. At Tl. mldhl (Zt OS) (4I4 Il1( and Ibn MIJab (7124) (1I} /1]. 2 Ab6 DlwUd (:!A9~) [l/10141. 1 At.T1.midhl (2 101) (41421 ].

CHAPTER

Inheritance of Daughters
The deads daaghter Inherits half or the estate on
two condition,:

11K fint condition: is Ihal she is the onlydaughterorthe deceasnl. The 5KOod oondition: ;5 that the deceased don nO)! have a son (or soru) iiO that they jointly con~i lule agnation 10 the deceased.
The evidence is shown in the verse as Allah, the Almighty, says:
~A.IIGh ins'ructl you ' ''nr....''ingyuur rhildrrll (i.e. thdrportiOIll of ,,,heri"',,"]: for Ih. maJ~, ...10", iJ e'l"fl' to rh4,JuJrt! ..fthe two fnn,"a. But if tltn. II/'t fonly) dif,ugh'n-I, two "" ,"Ort,jar 111ft>! U two "lIrdJ of OII"~ _le. AnJ if ,Mu Mr is MJf..... (Qurln: An-Nisl': 11)

"0111,. ""',""

The phruc . NulI! l~rr " only .... e. . . Implies the lndilion that Ihe does 1'101 Inherit half the estate unless she has no $i~ten (from the dt'(:~J: an d the phra.., ...forthe nulle, /",q.lI.l to IhuM,.. of ,lretwo ftm ..la ....

""',,>I

V !NHf.RITANCE

implies th e condition that she must have no broth ers who are agnate heirs 10 the deceased. The daughter of a late son of the deceased inberits balf the dfi:eased's estate on thu e conditions : The first condition: is the flofl-uistence of a male relative to make her an agnate heir, namely a brother or a ..on of her paternal uncle, who are of the same level of ki nship to the deceas<:d The second condition: is the non-existence of a participant heir or lhe deceased, namely a sister or a daughter of her paternal unde, who i. of the same level of kinship to the deceased. The third condition: i. the non-uisten"" of a descendant heir who is highe r than her in level of kinship to t~e deceased. Two daughters or more inherit two-thirds oflhe estate on two conditions: The fi rst condition: is that they must be two Or more. The second condition: is th e non-uisten", of an agnate relative orthe deceased, namely his SOn. In this regard, Allah, Exalted be He, says:
"AI/Ilh Instructs you <"(>IIr erll;lIg your childrell [i. e, their portiora of;u~ritllflceJ1or the male, ,..hat Is equlll to tht s"llre oft"t two f emalu But If tht rt Ilrt [o,,/y] dllug"ttrs, two or mo"', for them is two thirds of O"t~ utate ...(Qur'~n: An-N is!I': 11)

The phrase K, the malt, ,..hat is equllllO the Iluln Ilf tht twll fem alts"." indicates that the non-existence of an agnate male relative is condition . 0 that daughters can inherit two_ thirds. The phrase ": .,But if there ..re [o"ly} daugllters, two or mort ... indicates that they must be two or more. Some Kholars hll"" mistakenly understood the aforementioned velU and thought that two daughters are not to inherit two tbirds of the estate and that they must be thr~ daughters or mo=. This is the opinion adopted by Jbn . Abb;U, unlike the majo rity of scholars who maintain that two daughters or more are to inherit two-thi rds of the estate. This is stated in the /l.adrth narrated by J~bir Ibn . Abdull M! (may Allah be pleased with him) as saying:
"TM wife of& 'd [/",ur-Rabi' _nt to the MtlStngtrofAllah (PBUH) with her lwo dDughters a"d said, '0 Mt ssengtr of Allah! Thue are the daughurs ofSll 'd lbnur-Rabi' whose fathe r WlIS killed a. a martyr

""r

whw he was with you a/ th e Bailie of Ublld. Their paternal unclt hru taken all their property, and he has not left anythingfor them. Thus, they will not be married unless they have some property.' The Messenger of Allah (PBUH) Ulid, iHlah will decide regarding the

'"

matter. Then the vent of inheritance was revealed. Therefore, the Messenger of Allah (PBUH) called Ihe uncle of the daughters and >aid to him, 'G;"" the two daughters vfs.. 'd two-thirds (of/heeslate)
and their mother an dghth, and what remai ... i. you,.,,: '

(Related by the Five Compilers of Hadilh excopt AnNasa'j and is deemed u<uan (good) by At -Tirmidh1j
Th~

baditl! proves that two daughter!l are to take two-thirds oflhe estate

of the deceased; it is a juristic proof that Sl:ttks the dispute with regard 10 this
subject and a Prophetic explanation of the verse that states, "..Bllt if thert art [only] daughtf'f"S, tW(I or mort, for them i. two thirds of O1It'$ ~Iaft ... The hadilh is a demonstration of the meaning, the verse, particularly bau~ the reaSOn for the revelation of this ver~ is the story of the two daughters of Sa . d lbnur-Rabf and the question ortheir mother rtgarding th eir inheritance. Moreover, when this ""rse was revealed. the Prophet (PBUH) caned their uncle to order him to give them their .hart of estate. previously stated, some scholars are of the opinion that three or more daughters. not two or more, are to inherit two-thirds of the estate. The reply to this opinion can be through many proofs. Among them is the fact that AIl~h, Exalted be He, has entitled the mal e to inherit a share equal to that of two females; sin", a female gets one-third in ca~ the,.., is a male, whose degree of agnation is higher, then, with greater reason, she gets one-third in case there is a female like her, whose degr..., is lower. It is a method of pointing out the major by rdating it to the minor. Allah, Exalted be He, ha. mentioned the .ha,.., of One daughter literally and that of two daughters by indication. Hence, the phrase -: . two <Ir mOIT." in the aforementioned Qur'ank verse indicates that the pr=ribed share of daughters dcw:s not increase with their number. even if they art more than two: and Allah knows best.
Al;

The two daughters of the de,ea~d. SOn are regarded"" daughters of the deceased himself all regards inheritance (if the deceased's son is.dead). So, they are to be given two-thirds whether they are sisters or cousins {daughters of two sons of the deceased} of the same deg,..,e of kinship to the d",e""ed. Twothirds are to be given to the granddaughters of the deceased by means of analogical deduction, i e. considering them two daughters of the deceased, providw the Ihm following eonditions ll"f' fulfilled,

V INHERITANCE

1- They must be two or mo' daughters, 2- The non-existence of an agnate male heir of the deceased, namely a grandson ($On of the deceased\; son), whether he is their brother or a cousin of the same degree of kinship to the deceased
J - Tbe non-existence of an inheriting deKendant of the deceaw, for

such an heir is higher in level of kinship to th e deceased, such "" a son or a daughter of the deceased; and Allah knows best '.

End notes
I Abt Dlwiid (2891 ) [3m21. AHirmidhl (2()11S) 1.(J4151ond Ibn MIj. h (2120) 1313161. 2 In !hi! ~ it .h",,1d be token into clHI.<ideration tla! 0""'1 gon<11tion i, prio' to tho following ono in inhori~.

CHAPTER

Inheritance of Full Sisters

Al\.ah, Glorified and En.Ited be Hr, has instructed the $hare of full sisters (from tile ume ~renls) and patemal half l isten with brothers who are nol from the UrM mother. This is stated in the following verse al the end of tlK Sura of A".Nis,n Womtll)',

-n.ty rtqutJI/rOm )"". " {"'pl} nll/"t. S4y, 'ltllah liws you ..
rul/rrltollarnlngoruluwing nd rJrn duundallUlUJroUUnd.i1l1s flU /sdr./. If .. "'.... dia, ", .. villI 110 mild ,"u' {onl,./ .. ,iJl tf', me ...111 h,,,'f' halfof what he kft. And It" I"h",./I, from h",. ifme {diu IInd} 114, ",)child. But ift~ ..n {or more], ,My will /law fw<I thirds of whtlt he I"ft. if ,It"u ",." both brvtiKn "",d IiJlnJ, the will I..",,, the Ihan oI'WC' frma/u .

lwo,ut",.,

m..u

(Qur'An: An-N isA': 176)

V INHERITANCE

Allah, the Almighty, has also ddin~d th e inh ~ritanc~ of maternal half sisters with maternal half brothers in th e following verse:
And if " n".n I1r W(ltlUln leave. neither tuan.u,nt. nor ducndant. but I",. .. bmlht' l1r a sister, Ihe .. f//r each oneofthem is .. mlh. Blit iflh)l ..n man th .... tw!), they . hon .. third ..~
w.. .

(Qur'An: An-N isi': 12) According to the two verses mentioned above, the full sister is to ~ given half of the estate provided that th e followi ng four conditions are fulfilled, The first condition: is the non-~xisten,~ of an agnate ,dative, namely, a full brother. This is according to the verse, ~... 1fthere on both ,"athen and mu,." the mllle ",1// /raw Ihe Shll n of two fem ..lts ..... The SKODd ,0Ddition: is the non-existence of a part.icipant heir. namely, a full sister, as Allah, Exalted be He, says. "... If .. m .... din, leaving no child but [only} a mter, .he will hllve half of "'hat lit left. And he inherit. from her if she [ditJ and] h... no child. But if there an t"'o sislers {or more], they will haw tW(lthirds of",hilt he Itft ~

The third

condition~ is the non -ex istence of asce ndant

male heirs.

namely, a father and a pat~rnal grandfath er, according to the soundest opin ion of scholars with "'gard to th is case. The fourth condition: is the nonexistence of descend ant heirs, namely, the son, the grand$On by the son in descending lineage, the daugh ter, th e granddaughter by the son however is her fa th er in descending lineage. The (viden," of th ese two cond itions (i.e. the third and the fourth) is that brothers and sisters an the heirs in the case of the kaM/ah' wh ich is th e ca~ of the du t a.!M haVing neither descendants nor ascenda nts (as heirs) .
A paternal half sister inherits half of the estat e on five conditi ons, four

of wnich an the same conditions that govern the inheritance of a full sister mentionNl above and the fifth cond ition is the non -existence of a full bmther or sister. This is becau se they an stronger in their degree of ki ns hip than the paternal hal f sister.
Two or more full sisters a", to inherit twothird$ as stated in the Qur'ank verse, "... Bul if there an lwo .i.,~. lIlT morel, they will have tWf) third. of ",hat he left ..~ However, then are four condit ions that must be fuLfiliNl so that

they can inherit the two thirds,

TIle first condition: Tht:y , hould b<: two or more, according to It.., Vll'rw, -.. Bul If 'h~rf 111'1 ,...., .llIen [or mOrf/ .....
The second condition: The nonexistence of an agnate male rdative 10 them, namely one or more full brothers, as Allah. Exalted b<: He, %ys, ".. ,If then /IR ""rh brolht,." .." d ,i,wl, Iht mtllt will IuIn Ihe .n..n I)f t_ jtmlllt'" ," The third condition: Tht: n.onuistence of descentbot heirs who a..., the children and grandch ildren by the soru., as Allah, the Almighr:y, says......1/a mall din, Itllring nil mild !Jut /llnly111 sintf', 1It/IViU ha..., half of ",ha, he left, .... and then A.11ah SAys, .... , But If the,." I),." '10'0 ,uftr. {or ",on}, they 101111 ha..., I...., thinl, I)fwF'lIl he left ..... The fourth condition: The non-existence of male as.cendant hein, who is the father according to the con""nSOl of Muslim scholars. Tht male _encbnt heir in this cue may be aoo the pate rnal grandfather, according to the 5Ounde$t opinion in this rq;..d , Two paternal half sisters or more are to inherit tW(Hhirds as tMre is a oonscl\SllS that the verse regard ing the ktWllill. is applicable to them ... If a mlln din, Iwving no child but f01lI,} fI liltn, lite will have hlllf of what M left. A."d he inherit, from /,er if ,he (din IIIIdl hlU 110 child, BUI if there lire two 11",,.,, {or ml),."l, th~y will ha..., 11010 third, of what he Itfl ...~ (Qur'An: An-N isi': 176) Ho"'Cver, they are not to be given the two-thirds unlen they fulfill fl..., condition,; the first four conditions a~ tile same li k~ the p!'CViousl y mentioned conditions rrgarding the inherilanCe of full sisters_

The fifth condition : is .he nonai>tencc of full Jit ters or full hrothers. Hence, if t~ is one or mo~ full sistn or ~her, the paternal half si,ttrs a~ not tn inherit two-thirds. Tht:y are to b<: ududed from the Inheritance by the elI iltence of a full brother Or two fu 1l5isters unle .. they
have an agnate relati..." However, if;t is only one fuli , isteT, the pat. rnal half sister(s) is to be giwn one-sixth to compkte the two-thi rds.
JOn,

In cue th ere ill only a daughter and One or more granddaughters by the Iht daughkr is to take a half and the granddaughter{s) by the son is 10 take one-sixth as the ...,maiOOe. of lbe two-thirds. This wu the ...,rdle. of Ibn Mas ' M (may Allah be pleased with him) in such I case as he said:

"rm. WIl< the verdkto/lhe Mr=ngerof Allah (PBUHJ i" Ihi. rtgQni."'
(Related by Al-Bukh!lrl )

'"

V INHERITANCE

TM RaWD fur thi$ is that tben a~ m~ than one daughter for the deaaKd and hence they IT. entitled to twothirds according 10 the verse in which Allah, Exalted be He, nYl', ": .. Bul ifthtr'll1'1! ' ..... '/JI"" [or more], thq willlta~t tlI'O third. of ..,hilt Irt I$ft...- Th. daughter 1$ given a half because she is higher in the level of kinship and 00.-5;';lh is left for the granddaughter( s) of th. SOD as the rerminder of the lwo-thirdi., provided that the following two conditions ~ fulfilled: The first condition: The non-=i$tmc"" of an 'gnale rdative to her. namdy. grandson (by. son) who is equal lCl her in the level ofkinship
whether he is het brother or a male cousin (son of I p<lternal uncle)

ofheu. The second condition: Th. non-uistence of a descendant heir wh o is higher th,n htr in the l~ of kinship tlcq>! the daughter (of the ~) who inllt'rits I half, as the granddaughtu n~r takes onesixth except with the daughter. In ase !here is I paternal half sWer wilh a fulllisler, the I'ormer taW O/"C-

sixth as a rtllUlnder of tht two-thirds, according [0 tilt cons.ensw; of scholars as

ttated by mOre than one scholar. Thil is a.ccording to the ~ n alogical deduction by comparing thil cue to the c..se of the granddaughter (by the son) and the daughter. However, the paternal half .ister is not to take one-sixth unlen two conditions are fulfilled. The fin! condition: is that she must have only one full &.isle.. who inhmlli a half IS a procribW share. If, h~, there are lILIlDy ......1 sisters, they nclude the paternal half liste. IS they together take the tWl.H hirds luving nothing for her. The $Coond condition: i. the ab""nce of an as nate ..dative of hers who. in this ca"", il hn brother. If oh. h... brQlhr. then they (oh e and her brother) are to inherit the remainder by vlrtllC' of agnation, after th e full Iisler receives her share. This n:mail"llkr will be divkied between them o n the basis that a male is to receive the $hare of two {milia
And Allah
kn~

besI .

o..pt<'r 10: l.heM"."" of Full Si" ....

Endnotes

'"

I Chaptn- No. 4 cl tilt Qur"." 2 Kl>lAloh, A cn" rdated to lilt ruling< on i nher ;tan~ , in !hi, callt IM <I"a..d 1 _ ntith<r dtfundant. nOr ..und.nll (u 00,.,) . 3 AIBukh1r1 (6736) [12121 [.

CHAPTER

Inheritance of Sisters with Daughters and Inheritance of Maternal Siblings

In cast lberc Is I daughter (ofthc dC'CCUCd) or mort, with one or mon: full or patnal lWf soon (of the deceased), the existing daughlcr{1) whether OIK or mOtt Ware to be givm h er/their prescribed dIare. However, the .rujo rity of scbolm from IltIOng!lllhe Companionl ond the Suessol1 ollhc Companions
bdicvo: that fuU listen Or paternal halflislen form an Ig n.te .-dation with the daughter&. Thl. is what the sellolan of inhcritllrl caU agnation with other relatives," Thus, they art \0 be given wh atever remai n. from the prescribd

share of the daughters or son's daughter. Thll is ill ullrate<lln the badlth related by Al-Bukhir' a nd other compilers o f l!tJdllh that stata:
"Ab!) M as<l (may Allah

wpkasd w ith him) W<I.I mJctd regarding

"auc ojil1Mrit"nu in which IM dtuaSUI had left a dllughtn; Il

'"

V INHERITANCE

,OilS daughttr. and <I sister. He said, 'Th~ daughter is to take ol'l'e half and the sister is/o take ont-half. Ab" Mu,.! adlkd, 'G<l to Ibn Mas '(jJ and ht will tell you the same.' Ibn Mas '(jd ww asked and was told of Ab!) Mtlsd~ verdict. 11171 Ma. 'ad then said, '(If I gi'>'t the same verdict,) I would stray and would nOI bt oftM rightlyguided. The yudict I willg!ve in this cast will be tht same as that oftht Prophet (PBUH); one-half isfor tht daughter, Ollt -sixth/or tilt son'> daughter so tlmt both sham mab: two-thirds of the total tl"tate, and the rest is for th~ si.fer: "' This hadirh is a clear prooftbat the sisler, with the existence of a daughter,

is considered an agnate relative and is to b!. given what remains from the

prescribed share of the daughter and the son', daughter.

A maternal sib-ling, whether a male Or a female, is to inherit one-sixth and if they are two or mo~, they are to inherit one-third and then it is to be divided equally among them, whether males or females. In this ~gard, Allah, Exalted be He, says,
";,.Alld if a mall "" wornall leans ndtluT alamdatlts 1I0T dtsalldallu InIt Iuls a brother"" a sislt'r, tlt~II far ~ on~ ofthem Is a sixth. Bat if thry au maR thOll two, ,hry ,hart a third.,"

(Qur'An: An-NiIl~': 12) Muslim scholars ha"" unanimously agreed that th e siblings intended in the verse a"" maternal halfbrothers and sisters. It was ~en Rcited by Ibn Ma5' ad and ~. d Ibn Aba Waqqas in the following way of recitation: , but hd$ a """ther "" a ,I,ter by the ,ame nwth.,.., ,- Allah, Exalted be He, has mentioned the siblings in this ver~ without giving preference to anyone over the other, acwrdingly, the femal e i~ equal to th e male in this regard', Imhn IbnulQayylm (may Allah have mercy on him) said. "This is IM 50lmd analogiUlI <kdw(lioll and rhe balance that conforms with the metl,,;ng of the Qur1",;" ve ....
and the ""dfflIQnding of the prominent CcmJ><lniOlu of the Prophet (PBUH)."

One maternal sibling is to inherit one-sixth provided that the three following conditions are fulfilled: The first ,ondition: The non-existence of a descendant heir The second condition: The non-existence of an ascendant male heir (such as a father of the d~ceased or t n~ dt<:eased's patern , I grandfather, and so fortn in ascending lineage)

Ch'pm- 11: Inhcritmc< of S;' .. wi,h D,ugh" .nd... The third condition: He or she must ~ alone.
As for the inheritance of maternal siblings, they are to inherit onethird under thl"<'e conditions. They al"<' as follows:

The rll"lil condition: They must ~ two Or more whether males, females, or both males and females. The second condition: The non-existence of a male descendant heir, namely a deceased's son or a grandson (by the son) and so forth in des~nding lineage. The third condition: The non-existence of an as<:endant male heir, namely the father and the paternal grandfather and so forth in ascending lineage.

The maternal siblings are characterized by five rulings:

The fint and the second rulings: Thel"<' is nO preference for the male over the female among them in inheritance, whether there i. one maternal sibling or more. In case there is only one sibling, Allah, Exalted be He, says, ~. A"d if" man UT ... oman I""..." "eUher ".IceM"nls nOr de.lceMants but h". " bmtMr or" sister, then for ....ch 0 .... of the ... is " sjnh ...~ and in case they are many, Allah, Exalted ~ He. says, ".. But if they "n ... ore thlln two, they sh"rt Il third. .~ According to the majority of Muslim scholars, the meaning of kIllotlah is: the One who dies leaving neither ascendants nOr descendants; thus, the non -existence of ascendants and descendants is a condition in such a case. The descendants include the male and the female children and grandchildren (children of the de<:.eased .. on) and so forth in descending lineage, and the ascendants include the father and the paternal grandfather and so forth in desc""nding lineage. As a proof that there is no prefer~nce for th~ mal e oVer the female in this case, Allah, ExalteJ ~ He, says, ". Bllt if they are nwre than two, they .hare a third ..... Therefol"<', it i. dear that Allah has entitled them to share the inheritance together, and the sharing indicates that each one is given an equal share. The wisdom b ehind this, Alla.h knows ~st, is that tltey are relatives on the maternal side only, and they all are the same with regard to this. Hence, there is no preference for th~ male over the female in contrast to kinship through the paternal ,ideo

V INHERITANCE

The third ruling: Th~ male sibling is rflated to the deceased through a female relative (i.~. his mother). yet he still has the right to inherit in cont rast to others who do not inherit if the relation to the deceased is through a femal e such as the case of a .on of a daughter. The fourth ruJing: They partially ndude whOt,""r caused th eir relat ion to the deceased and decrea", his share (namely th e mother in this ca"'). Therefore, the mOlhd, share of the estale in this case decreases from one-thi rd to one-sixth. ) as she is the cause of their relationship to the deceased. This ruling comes in contnst with the general rule which states that whoever is related to the decea",d through a certain person is prevented from inheritance by the same person. The fifth ruling: They inh erit with the one through whom they are related to the decea",d. i.e. their mother. while this is not the ca", normally. For example. the son', child (male Or female) is not to inherit with th e SOn. However. the patemal grandmother (i.e. the mother of a father. the mother of the paternal grandfather and so forth in alCending lineage) re.embles the matem al siblings in this ruling, as she is ..latM to the de"'ased thruugh her son, and yt! she still has the right to inherit. despite the existenc~ of her son. To conclude. whoever is related to the deceased through a certain peJ>on is not prevented from inheritance by the same person unless the latter replaces the former in inheritance. However, if the latter does not replace the fonner. then there is no exclusion. This is as in the Ca'" of maternal siblings; they do not inherit the shar e of the mother in case of her non-existence. Similarly, the paternal grandmoth er (mother of th e falher or mother of th e patemal grandfather and so forth in ascending lineage) does not take the father's or the paternal grandfathers shares. but she is to inh erit with any of them by virtue of motherhood in case of th e mothers non-existence; and Allah knows best. Endnotes
1 AJ-Bukhlrl (6736) 112121 J. 2 Al-Bayhaqi (]2322) 1 6I179J.

3 The short oflht dec .... d. rnolhe, dec,.a... from ooe-lhi,d to ont -&lxth of the .. tat~ if the d.aotd h.. siblings. whether they art full Or half siblings. ond whether they
inherit Ol llOt.

CHAPTER

Agnation
Agnation Jin8ui~tically in Arabk ",f~11 to the meaning of ,upp<.Irl ing. In the rulel of inMrilance, the word tu one'l agnate relalive(s). Thus.. IM Ignate relalive$ of a pnson are his . d.tlW:5 from the paternal oi<k: tM {arher. the son. the (full or palernil halO brother and the fat he., (full or half p.aternal) b rother. Accordins 1 the laws of inheritance, the agnate mal;"" is 0 the pa10n who getl an undd'intd . hare, beauu if he is alone without any other claimants to the inheritance. he gelS the whole (Slate. H~, u ht is not alOOf, he i$ to gel what ",lTI.il.iru after tM pregribtd .ha' rlI of inher itan ue dillributed. This is corrl ing to the b-wllh orlh., Prophet (PBUH):

me,S

'Giw tht shares of tht inheritance (prescribtd in lilt Qur<lnj 10 thOle who MC en/itled to rlu iw them. Th en whatever ."maj" s should btgiwn to the dosest male relative of the deceased:'
Agnation is divided into th",e categorie': hfing Itn agnalt ..dative by oNKlf, bring an agnate ",]alive by other ...,Ialivn, . nd being an agnate ...,lativ( with oth( r n lativea.

V INH ERITANCE

The First Category: Agnation by Oneself

This cakgory includes all males concerning whom there i$ a consensus that they are entitled to inherit except the husband and the makrnal half brother. Tholie who are agmte relatives by themselves are fourteen: The son, the son's male child and so forth in descending lineage, the father, the paternal grandfather and sO forth in ascending lineage, the full brother and the paternal haIfbrother, the son of a full brother or the paternal half brother and so forth in descending lin eage, the father's full brother and the father', paternal half brother and so forth in a~ending linnge, the son of a full or a half-paternal uncle and so forth in,descending lineage. It .1"" includes the manumitter, male or female, of a slav.- .

The Second Category: Agnation by Other Relatives

This category includes four groups:
1-

One or more daughters of the decealied with on e or more deceased.

SOilS

of the

2- Thedaughter(s) of the deceaiied'sson's with oneor moreofthe deceased's ,on's mal e children, provided that he should be at the Same level of kinship with her whether he is her brother or her paternal cousin. Sh e could also be an agnate relative by the grandson who is lower than her in the level of kinship to the deceased. The evidence that these two group. are categories of beillg all agnate rdative by other relatives is shown in the noble verse in which Allah, Exalted be He, says:
'!4.lIl1h in$trllcu y<Jue,mcerningy<JIlr children {i.e. their portion.

ofinheril4na}: for the m,ue, ",hilt IJ tquIII to the of the (Qur'!n: AnN isl': II) two females ...
Thislloble verlie considers the children and the son's grandchildren.
3- One or more full sister of the deceased with Olle or more full brother

,I"",.,

of the deceased.
4- One or more paternal half ,ister of th e

with one Or more paternalluolfbrother of the decused. Th", evidellce regarding the last two groups is shown in the "" ...e that reads:

de~eased

';,.If the,., art both brothtrs and Ii,ters, the male will hllyt the .hare oftwofrmalu.,." (Qur'!n: An-Nis!': 176)

Th~ ve.u considers full sibl ings and p,atema.l side half sibli ngs. Thus, I"," sillers of the following male relatiVC'S of the deceased art to inherit by virtue of agnation by them, th e deceastd's $On, the deceued's son's moJe child, the de;:used's full brother and the de;:ustd's patern al half brother. However, the sisten of other male r~latives or the dcceaSf'd do not shne them in inheritance, such as sisters of the de~aud'l male nep","wl, the sisleT', of the deceased's paternal uncles., and the sistu's of the dn:east:d"s pate rnal cousins.

The Third Catego~: Agnation with Other Relatives

This categocy is divided into two kinds: I Onc or more full sister OfTh~ deceaud with one or more daughTer of the de;:eased or with one o r more oflhe deceased's son's daughter. 2- One or mOr~ paternal half sister of the dea'aud with one or mo daughter of the deceased or with one o. more of the dn:o:ued', iIOn's daughter. This is the opiIDon of th~ m.a;Ority of a:hoIan from amongst the Corn~iom of Ih~ Prophet (P BU H), the S"ccnwTl of the Companions, 1UId IhOk who came after them. They say that the full sisters and Ihe p;tternal hlf s)stet$ of the deceased become agnate relatiYe$ with the dt<eastd's daughten or th~ dcaased's son".! daughters. The eviden~ is illll$traTed in the badlth that states:

"A.bll MIlS<l (may Allah be pltrued with him) w<lSasktd regarding (tlu inJuritana of) <I daughttr, <I sons rhlughler, <lnd <I sisfer. fk said, "Th~ daughter is to lake one-half and Ihe sis'" is to taU o~-half AM Mllscl tuUM, 'Go to Ibn MIU '(id <1Nl he "'ill tell you the SQme.' [b" Mas 'ud was askd and w<u told of Abll MIlS<ls vm:Iict. lbn M<IS 'Ud th~n said, '(If I giw the sam~ wrdict,) 1 would strll.y <I"d would "o1 ~ of the rightly-guided. Tht verdict I will give i" this c<lse will be the S<lltIe as that of Ihe Prophet (PBUH); one-half is for the daughter, ont-sixth for Ihe son:' rhlughter SO that bolh shares make tWO-lhirds ol lhe total mllte, and the rnt ;s Jor 'he sisler.' ...

(R.cl.lted by the Group of Compilen of Had;,h' except Im'm

MlUIim and An-Null')
The agnate relative by OrICKlf gtU the whole estale
ifh~

it alone, .. Allah,

Exalted be He, says~

V INHERITANCE
~... And he

inherit.from herif.M {diff and1 ha. no ,hM..N

(Qur'an: AnNisa', 176)

Thus, in this case the brother is to inherit all the estate of his sister. Only the agnate relative by oneself enjoys such a ruling, but ruch an agnate relative shares the ..,st of agnate rdatives in inheriting what remains after the prescribNi shares of inheritance are distributNi. This is basNi on the I!adith ofthe Prophet (PBUH):

"Give the shares of th~ inhuitance (prtSCribed in the Quri1n) to those who an: entitled to receive them. Then whatever remains should be given to the c/OseJl male rela/lYe of the deceased: '
if nothing remains after the legal hei" takr their prescribed shares, tbe agnate ..,Iatives inherit nothing,
Ho~r,

The.., are six sides for the agnate relations; they are Ies~ctive!y as follows: filiation, paternity, brotherbood, brother', sons, ..,Iationsh ip of the paternal uncle, and waM', ' which is - as mentioned before- ca~d by the favor the manumitter does for the manumitt. d, The following b.adith of the Propbet (PBUH) illustrates this as he says:

"Veril)\ the walci' is for the ema"cipato~"

(Related by AI- Bukh~t1 and Mnslim) In case two or more agnate relatives are involved, they have one of the following fonr case" Tbe first case: They may sha.., the !Olllle agnation side, the same level of kinship. and the <kgrec ofk in.hip.ln this case, they share th e inheritance together such as the sons, the full brothers and paternal un':! ... The second case: They may differ in their agnation side only. Thus, the one having the dos ..1 sidoe of kiniliip has the priority in inheritance (according to the above-mentionNi order), such as the case of a son and a father. In tbi. case, the Mm has more priority than the father by agnation. The third case, They may sha.., the same agnation side and differ in the level of kinship such as the case with the son and the $On's male child. In this case, the son ha. the priority over the grandson, as he is closer to the dC(casoo in the level of kiru;hip.

o..pm12, Apion

283

The C ourth o;ase: Thq nuy wn: Ih~ Amc agnation silk and kvd of kin$hip but differ in the dqj,rcc. of kinship so thal onc of th~m is $Imnger In deglft than tM other. In this case, the one having the $Imnges! ~ofkinship will hJYe tM priorit y such ua full brotMr with a paterna! ha Ifbrother. Thus, the full brolh~r ha.! the priority oy~r the paterna! half bro{her, as the full brolh~r is related to the deceased through the two pan:nts while the paternal half broth er is rdated to the decea~d through the father only.

Endnoles
1 At8uklWl (67)1) l t llt~J and Muolim (411 7) 161541. beca ..... Messenger of Allah (pBUH h .. id. , he ....1.1. (;..,. Ioy.o.lty b,..i nur of 1 ...... no:;p.ion) iI .. bond lit. !ha! of l:inship." 1 AlBukIW1 (6736)1 UJ!J). 41he G"",p ofCornpilcnofl1aJjrh ~ AllluklWl, r.hb!im. Ahnud. Ahoi NwUd, AI Tirmidh l. AnNo$l'l. and Ihn Mijah. 5 Al8uWrl (6711) IIVl~1 .od Mwlim (41 17) j6JS.I.

This"

t""

6 1'.\11", The frffi:I slal't11oy1J1y by virtue of emano:l~'iorI. 7 AlBukhlrlIlSlS) 1512061 . od MmJim (1767) 15J3~ ? 1 .

,
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o~lj

ollli
j<ln

, ,;

,
,,'

CHAPTER

"

,I

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,

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,.

c,
I

Prevention from Inheritance (Hajb)

This chapler has a specific importance among the rulings on inhe ritance
~use

knowing its dt1a.i1s will help assign rights 10 thOiiC deserving them.

On the co n tra ry, unawareness of the rul ings On such an issue may cause great harm, as th e inheritance might be si,.n to those who are not legal heirs while depriving the right ~ rsons (rom it Thenfore. SOme scholars say,
"ft is prohjlJit~d for those who do nol know the rulings On pre-

vention (bujb) to give a jarwa ("nu rning a mutter of the ruks of

inhcritana:
Accordi ng to the scholars o( inheritance, "bujb" m eanS preventings.omrone, who is " ntitlM to inh" 'I, partially or tota lly, fmm rece iving all his/her s hare o f inheritana (aaording to the rtle>1.tlt rulings),

'"
The First Category: Prevention by Description

V INHERITANCE

Prevention from inheritance is divided into two categories:

This mearu that iIOmfflne is characterized by som~hing that Ca~ him to be totally prevented from inheritance. Th~ ",,,,oM that ca~ one to be totally prevented from inheritance are: being a slave, being a murd.,.", or being of a different religion than that of th. deceased. Those who have any

th,,,.

of these characteristics do not inherit. and their existence or

makes no difference in th is regard.

non-existen~

The Second Category: Prevention by Persons

Th is meam that a specific person is either excluded from th e inheritance

altogether and this is called 'complete preven tion", or that this person is p,",vented from ,,",,,,iving a bigg.. sha..., of the inheritance but allowed to
re:ive a smaller o n... and this is (a!l~d "partial pr~v~ntion". Th~ r<:ason for this category of pr<:ventio n is the existence of. ~rson who is mor<: entitled to that inheritance tha n the one prevented, and that is why it is called "prevention by ~rsons". This category is divided into seven types, four of which OCCur as a result of the presence of many differ<:nt kinds oflegal heirs and th e oth erthree <xcur due to th e transition from one state to anolh e r as a result of the existence of other heirs. These seven types ar<: ~s follows: First: Th e transitio n from OnC tYJ'<' of a p r<:scribed shar<: to a lower one, such as the alteration ofthe husband's share from a halfto a quarter. Second: The transitio n from one category of agnation to anolher one that i$ lower, such as the alteration of th e (full or the paternal halO siKtu from ht-ing an agnate with other Tl'lalives to being an agnate by other Tl'iatives. Third: The transition from Mingentitled to a prescribed share to a cat~gory of agnation lower than the pr= ribed share. such as the alteration of the femak hei r from M ing entitled to inherit a half as a pr=ribed share to M ing an agnate by other rdatives. Fourth: The transition from being entitled to inherit by agnation to inherit a smaller prescribed shar~. such as the alteration of the father or the paternal grandfather from the inher itance by virt ue of agnation to th e inheritance by virtue of a prescribed share.

C!taptor 13: Pr=ntioo from Inhori .. ",,< (!bib)

Fifth: Th~ incr~as.e in the number of legal heirs to a particular pru cribM shal"C', such as the increase in the number of wives sharing Ih e same one-fourlh or one - ~ighlh of the .estate.

Sixth: The incl"C'ase in Ihe number of legal heirs in agnation, such as Ihe
incl"C'ase of agnale heirs in sharing Ihe whole estate or the remaind er after distributing the prescribed shal"C's , Seventh: The incl"C'ase in Ihe numbo!r of legal heirs as a I"C's ult of the 'awl, ' such as the in"eas.e of Ihe number of those enlitle.;! to prescribed shares in cases of the ' ~wI, Thus, each one of these legal heirs is 10 take his legal shal"C' reduced in amounl as a I"C'Sull of this increase.

Prevention is governed by some rules as follows:

The first rule: Whoever is related to Ihe deceased through a certain person is pl"C'vented from inheritance by Ihe sam~ person (bearing in mind what has hn previously mentioned in Ihis regard), such as the case of a son's male child with the son, the maternal grandmOlher with th e mother, the paternal grandfather with the falher, and brothers with the father. The second rule: In case two or more agnate heirs ar~ involved, the onc who is closer in Ih e agnalion sid e will have Ihe priority in inheritance. Hence, if Ihere is a .on and a falher or a palernal grandfather, the agnat ion is claimed 10 the son a.'l he is of the closest side. In cas/: they bolh share the same agnation side, the doser one to Ihe deceased has Ih e priority over the other, as in Ihe case of a son and a son's male child, or the case of a full brother and the son of anolh~r full brother, and so forth. If the rdatives involved are fijual in Iheir agnation side lronger degree of kinship ha. and level 10 the dec.as~d, the one of the S th ~ priority in inherilance, such as in Ihe case of a full brolher and a palernal half brother. In Ihis case, the full brother has the priority over the paternal half bruth er, as Ihe full brolher is ...,laled 10 Ihe deceased through the two parents whil e the paternal half brother is rdated 10 the deceased through the father only. Tbe tbird rule: This rule concerns the complete pun nlion. An ascendant heir is nol to be prevenled from the inheritance except by another asc~ndanl heir. For example, a palernal grandfalher is only prevented by a father or another paternal grandfather who h clOs(f

V INHERITANCE

to the deceased. Also, a grandmother cannot be prevented except by a mother Or another grandmother who is closer to the deceased. Likewi~, a descendant heir is not to be preventt<! from the inheritance ucept by another descendant heir. For example, a son's mak child is only prev..nted by a son or another grandson of a higher level of kinship. In addition, the collateral relatives, namely the brothen and their sons, and the paternal uncles and th eir sons, may be prevente<l by ascendant heirs, descendant heirs or oollateral relatives. For example, the paternal half brothers of the deceased are prevented from the inheritance by the decea.sed's son, a deceased's son', maLe child, and so forth in descending lincage. They are also prevented by the father of the deceased Or the deceased's paternal grandfather (and so forth in ascending lineage), according to the soundest opinion of scholars in this regard. Moreover, the paternal halfbrother(s) is prevented from inheritance by a full brother and a full sister if she is an agnate relative with another relative. Thus, the paternal half brother, as illustrated, is prevented by ascendant, descendant and collateral relatives. Again, it is important to stress thatthe is.sue of prevention from inheritance (b.ajb) is very imponant: therefore. whoever is assigned to give jatwa regarding the rules ofinheritance should be completely well-v..rsed in its ruling and even apply them practically lest he should giv.. a wrong fatwa and co~quentLy chonge the kgal rulings of inheritance and deprive the legal heirs from their rights. And Allah is the One Who grants suce""s.

Endnotes
t ... wI: An incr""~ in the nu~r '" ,h.res . nd 0 dtcre.~ in their . mDunto according to the destfVing partits.

CHAPTER

Inheritance of Siblings' with the Paternal Grandfather

With rrgard to this c....,. Im~m Ahmad, ImAm AshSHfrt and ImAm MAlik adopt~d th~ opinion stated by Zayd Ibn Th~bit (may Allah ~ pl~a~d with him). Alro, Abil Yllsuf and Muhammad Ibnul-Hasan, the two Dis<:ipb of lrnhn Abillianlfah, as well as many of tht men of rdigioU5 knowlffise have adhered 10 this opinion .

According to this opinion, theee are three cases of the siblings

existing with the paternal grandfather:

I-They may b. full siblings. 2-They may be paternal half siblings.

3-They may include both types, full siblings and paternal half siblings.

,.,
~p<lternal

V It-IHERlTANCE

(n this respect. if the l iblings with the pillernal gl1lndfa!her Ire eithcT full

half ~ibHngs. tht grandratha has two casn with them:

The fltst cue: Wllen lhe~ i~ no oth:r heirbyvinue ofprtSCTib.ed sha~.ln sud! a cue, the,." are ,h""e cases for the paternal grandfather as follows: A) Wben the mU'l"Mm"j, ' entitles the paternal grandfather 10 8~ more than on~ lhlrd of the eslalr: The criterion of this caK il that the Siblings' share is less than double the paternal grandfather's share. For 02mpk, Ihcit share ca n Ix equal to Or\e and I half of the p;lkmal

grandfathtrs share Or lm than that This ~ in~ fi~ fonns:

1- The decei\Kd', paternal gnmdfather and one sister ohm, decaKd;

in this ca!>!:. the palernal g... ndfather sets two -thirds of the e"ale.
2- The paternal grandfather and one b rother; in this CaM. the grand{a . Ih ... lids ont haIf of the estate.

3 TM paternal gn.ndblher and two sisters; in this case, he getl half the estate (similar 10 the sc<:ond f()fm) which is mon than one-third.

4 The patemalgrandfather and thlft linen; in this case, he gelS twofifth!.. which Ir"t mort than OM-third..

s- Thc paternal gnndfather and onc brother and one sister; in

case, the grandfather gets two-fifth just like the fourth ""..,.

this

B) When the paternal grandfather gets one-th ird of the estate, whether

through the muq4s<!m"" or not. The criterion ofthil; case is that the siblings' share is doubLe the paternal grandfath.ers share. This case involves thlft forms:
1- The dcceased"1 paternal gnndfather and two brothers

2 The paternalgl"llndfather and one brother and two Jilters

3- The paternal grandfather and four sisters In the.., forms, the paternal grandfather gets one.third of th e filate, whether through tlte muqd...,,,,,,h or TOOt. With rTgIrd to this illlUC, there is disa~ment among scholars. whether the paurnal grandfather is 10 =aV4' hi. !-hare, whic:h is onHhird, through the muqo!UI .....h :u an agna'" mat lV4' or receiV4' il :u I prucribcd share. Or that he Is 10 be giV4'n the opIion 10 reaiV4' it through either of the two ways. Some "OOlln givr preponderance to the opinion Ihat the paltmal grandfather Is 10 receive one-third of lhe eJtMe iU a prucrihed sha re

rather than the muqds<lmah. This is because considering the prescribed share, whenever possible. is worthier, for the prescribed share has more consideration. Moreover, those entitled to prescribed shares are given preponderance to the agnate relatives. And Allah, Exalted be He, knows bes!. C) When one-third of Ihe estate yields mOre than the share that the paternal grandfather will gel through the fIIuqobamah.ln tbi. case, the paternal grandfather gets one-third of the estate as a prescribed share. This is when the siblings" share is more than double hi. share. However, there are no limited fonn. for such a case, unlike t be two previous cases. The least number in such a case is the existence of the decused's paternal grandfather and two brothers and one sister, or the pa.lernal grandfather and five sisteu, or the paternal grandfather and one brother and three siste.., and upward. The second case: When there is one entitled to a prescribW. share besides the de..:eased's paternal grandfather and siblings. There are .. ven cases for the paternal grandfather u follows:
A~

He is to get his share through the muqJsamah

8- He is to get one-third of tbe remainder of the estate (after the prescribed shares are distributed) C- He is to get one-sixth of the estate D- When his share through Ihe muqllsamah is equal to one-third of the ",mainder E- When his share through the muqJsamah is equal to one-sixth ofthe estate F When his prescribed one-sixth of the estate is equal to one-third of th e remainder G- When his share through the muqJsamah is equal to one-sixth of th e estale as well as one-third of the remainder To tackle these cases in detail, they'''' as follows: A- Tbe paternal grandfather is to get his sha", through the muqkamah when his sha", through the muqJsamah is more than one-third of the remainder of the estate (after the prescribed sha",s are distributed) as well as one-sixth of the estate. An example of this c"",, is when the deceased has left a husband, a paterna! grandfather, and one brother.

V INHERllANC

That is, when the prescribed ,hare amnu.nts tn half th~ estate (that goes tn th~ husband) and the siblings' share is less than dnubl~ th~ paternal grandfather's share. In this case, the paternal grandfather is to get his sh""" through the muq<hamah a$ the remainder Olfthe estate is nnehalf, after giving nne halftn the husband. This remaining halfistn be rquallydividedbetween the p;ltemal grandfather and th~ brnth er (due tn the muq"S<lmah). Nn doubt that nnefnunh nf the estate is mnre than d ther nnethird of the remainder or onNixth of the estate. ThUs. the estate is to be divided as fnllows: nne half is fnr the hmband as a prescribed share:, onefOlunh is for the paternal grandfather, and onefounh is fnr the brother. This Can be illustrated in the following tabl~

Brother B The p<lternal grandfather is tn get Olnethird nf th e remainder nf the estate (after the prescribed shires are distributed). This is when nne third nf the remainder is mnre than the share received thro ugh the muqJsamah and mnre: than onesixth of the estate as well An example of such a case is when th e deceastd has left a mnther, a paternal grandfather and five brothers, and such like cases when the prescribed share is les, than half the estate (nam ely nnesixth, which gocs tn the mnther in this case) and that th e sibli ngs' share is more: than double the paternal grandfather's share. The paternal grandfather gets onetbird Olf the remainder of the estate (afte r the mother gets her prescribed share, namely one.sixth) in this case as the remaining five sixths are to be distributed amnng the paternal grandfather and the five brothers. So, the paternal grandfath er gets nnethird nf the five,ixths that juals (I ,.) and the five brothers take the nthertwo thirds Olfthe five-sixths. Undoubtedly, the nne-third nfthe remainder gning to t.he paternal grandfather is mnre than the share he would have got through the muq<lS<lmah and also mnre than one-.lixth of the estate. However, one third nf the

293

remaining five-sixth is nO! a n:alUral number_ Therefore, for easier calculations, we can get the common denominator by multiplying 3 by 6 and deal with case u an IS -share estate_ Thus, the mother gets her prescribed share (one-sixth) that equals three shares, i..,. 3118. The paternal grandfather gets one-third of the remainder. which equals five shares, i.e. S/18. The 6"" brothen get the other two thirth of the remainder, i.e. 10118, each gets two shares, ie. 2118. This can be shown in the foUowing table;

c- The paternal

grandfather is to get one- sixth of the estate when one-sixth of the estate is mo..., than the share he would have got th.rough the rnuq4n'mah and also more than one-third of the remainder. An example of this c~ is when the deceased has left a husband, a mother, a paternal grandfather and two brothers, and suchlike cases in which the prescribed shares reach two-thirds of the estate and that the siblings' share is more than the shar e of the paternal grandfather. The paternal grandfather is to get one-s ixth of the estate in this case as the husband gel.! one -half of the estate, the mother gets one-sixth, and the remaining third of the estate go to the two brothers and the paternal grandfather. Undoubtedly, the one-sixth that goes to the paternal grandfather is mo,"" than one-third of the remainder and also mo,"" than the share he would ha"" got through the muq"samah. However, dividing the remaining one- sixth of the estate is not a natural number. Thereio,"", for easier calculations, we can get the common denominator by multiplying 2 by 6 and duI with case as a 12sha,"" estate. Thus, the husband gel.! his one- half of the estate, namely six shares, i.e. 6/12. The mother gel.! one-sixth of the estate which is two shares, i.c. 2112. Thc patcrnal grandf:athergel.!one-sixth ofthc estate as weJl, which is two sharcs., i.e. 2/12. The two brathen get two shares, i.e. 2/12: onc share for each. This can be illustrated in the following table:

INHERITANCE

""""""
Molher

PaIemaJ grandf'lher
Two brothers

6X2 3 I I I

12 sIuorn

6 2 2
2(1 for each)

0 - When th~ patunal grandfathds sha~ t hrough the muqdsamah is equal to one- third of the ~m,lnder of the estate (after the prn<:rib..d ~artS a~ distributed) and alw more than one-sixth of the estate. An example of this case is when the dtcrloSro hu left a mother. paternal grandfather, and two brothers, and suchlikt cases in which the prncribtd sham ~ Ins than halfthemate and the siblings' shl~ is double the share of the pat~rna.lgrandr.ther. The Jntt111al grandfather's sha~ through the muq<1samah is equal to o~ lhinl of the ~m.oindCToflhenl'lr in Ihisnse as the mother geu her one-sixth as a prescribtd share and Ihe rfiJliliIing fi""-sixths go to the paternal grandfather and the two brothers. The o~-th ird of the ~maind er equals (1;'), which Is equal to Ihe paternal grandfather's share through the muqd.samah. However, one.t hird of the remainder Is not a natural number. The~fo~, for casler calculations. we can gd the common denominator by multiplying J by 6 and deal with case as In t8mau estate. Thus., the mother gels one_Sixth of IJ.. <:slate as a prescribed share, which is (3118). Tht )nltrnal grandfather gm five sham (5/ 18) either through the muq<lsamah or as one third of the ~maindcr. The \WO brothers get ten ~an:' (101 18): fi"" shares (SI 18) for nch' . This is shown in the follow ing table:

E- When the paternal grandfather's shan: through the muqdsamah is equal to one-sixth of the estate and that each yields more: than oneth Ird of the remainder of tht eSlate (afler the prescri bed shares arc di5ITibuted). An example of this case is when the deceased has Id'! a husband, a grandmother, a palernal gn:mdfather, and one brochtr,

a..p.er 14: hlhcriWJa: ofSibII"" wllh .... r.tcmaI Grandf.mn

and IRKhlin ~ in which th~ pn:scri~ .hans Irt' "'Iual to twothlrch of th~ e:stlt,e and the elisten! siblings' shirt' Is equal to that of the paternal grandfather. The paternal grandfather's sha re through Ihe muq~S<lmw. is equal to on,e.ixth of the estlte In Ihis case u the hu$blnd gell one-half of t"" estate as a prescribed wrt' and the grandmother gets one-sinh. "The rt'maining two-sixths go to the paternal grandfather Ind the brother; the paternal grandfather get.s one-sixth of the estate either through the mlUJ<lsamalr or as a prncribcd WR, and the other sixth gOCli to the brother. This is illwlnned in tht following table:

....... ,
1

Patmlolll grandfather

B""F- When his prescribed. one-sixth oftllt estate iI equal to onethird of the rt'mainde r (after the pl't'SCribed .hares are distributed). An enmpl~ of
this ca~ is when rh edectued ha. left a husband, a paternll grandfather iUld three brothers, and suchlike cases in which the prescribed shart's ~ "'Iual to onc- half of the estate and the siblings' share is more than double the shart' of the paternal grandfather.

1he paternal grandfather, pl't'Kri~ OIKsixth of the estate is "'IuaI to o nc-third of thee rt'mainder in this case as thoe hu5band gets the onchalf of the e:stlle:.u a PU5Cribed share, and the paternal grandfather and th( thm: brothers WK the other half. In this cast, onNixth ofthe
estate is equll to onethird of the rt'mainder. However, onc.third of Ihe remainder i. not a natural number. Therefore, for easier calculation.!, wc (:an gd the common denominator by multiplying 2 by 3 and deal with cas,e as I 6-shart' estate. Thus.. the husband gets th re,e shares. Le. onehalf of the estatr; (l/6). In the same way, we get another common deoominatm by multiplying l by 6 and deal with the whole case as an IS-dIMe ~te. Accordingly, the husband the ~t,e (nine , hares) as a pmcribed mare, namdy (9f1S), the plternal gnndfather gets thre,e .shares (3118), .nd the thlft brothm get th e other six shares (6118). Thit can be i1hJ..ltr.t~d in the following table:

se" haIr

'"
Husband Pate~1 grahdfa!.ber . .~ % Three brothers

V INHERITANCE

'''' I

~" I,.

, :d:t,j~
2

""1

1 +41,l\Sfi...ji.?"
6 (2 for each)

G- When the paternal grandfather's .hare through the muqdsamah is

"

equal to one-sixth of the estate as weUas onethird of the remaind~r

(after the prescribed shares are distributed). An examp!~ oflhis case is when Ihe dee~astd has left is a husband, a paternal grandfather and two brothers, and suchlike cases in which the prescribf,d share. equal half the estate and the siblings' share i. double that of the paternal grandfather.
The palernal grandfath u's shaI~ through the muq<lsamah is equal 10 on~-.ixth of the estate as well as one-third of lhe remainder in thi$ case as the husband gets half the ~.tate and Ih., remaining half goes to the p~ternal grandfath er and th e two broth~rs. Thus, the Doe-third cfthe remaindu, the paternal grandfather's share through the muq.:!samah and the one-sixth of the estate all' all ~uaL How<'Ver, one-third of the remainder is not a natural numbn Therefore, for easier calculations, we can get the common denominator by multiplyiog 2 by 3 and deal with case as a 6-share estate. So, the husband gets three shares (3/6), which represent half the estate, the paternal grandfather gets one sha", (1/6) and the two brothen get the ",maining two sha",s (216), one for each. See the following table,

Note
All for the remainder of the estate after the prescribed shares all'distributed, there are four cases for the paternal grandfather: (I) If the ",mainder is mOre than one sixth of the estate, the paternal grandfather gets the largest share of the three alternatives, namely the muqdsamah, on e-third of the remainder or one-sixth of the estate.

(2) If the n:mainder equals one sixth of the estate, then it gm.s to the paternal grandfather as a prescribed share.
(3) If the rem ainder is less than one sixth of the estate, the paternal grandfather is entitled to get one-sixth of the estate as a pres<:ribed man:, and so the case is subject to the rule. of 'awl', (4) If there is nothing left for the paternal grandfather after dividing the prescribed shares, then the paternal grandfather is entitled to get ones~th of the estate as a prescribed share, and so the case is sUbje<t to

the
in

rules of 'awl, as in the former case, In the last three cases, the siblings have no shan:~ except for the the case called the Mdariyyah' on which we will elaborate later ',
~ister

Note
In some cues, the paternal grandfather gets one-third of the remainder by analogy with the mother in the two cases known as the 'Ummiyyat.t11 (the two ruling. attributed to . Umar Ibnul-Kbanlb). This is because bQth the paternal grandfather and the mother an: cnnsidered ascendants of the deceased. On the other hand, if then: is no a legal heir entitled tn prescribed .har"". each of the paternal grandfather and the mother gets nne-third of the estate. If ther., i. a legal heir entitled to pn:scribed shares, the paternal grandfather gets on ethird of the remai nder and the remaining part gm.s to the siblings. When there are siblings, the paternal grandfather is not to receive one-third of the estate, as this will cause harm to the shares of the siblings. The paternal grandfather gets one sixth as he does not get less than onesixth de~pite the existen"" of the deceased's wn{s}, who is the mo.t entitled inheriting heirs. Hence, with greater reason, the paternal grandfather's share does not decl"<'ase with other hein '.

V INHERITANCE

Eodnotes
I "Siblings" he", only to tI.. ful! ,iblings or tll< hal f palerna! "", le. they must be from the <ame father. 2 Muqo1<a"",h: It mea", that tll< p.t .. ~l gr~ndfother i. "'gard<d o. on< of the siblings

m....

in inMritm.
3 Set: ;;'H ..,,'jd ,';J.{.Uyyan' p 21 22 and 'S},arb. A,},SlitJn,harl 'AI.I Ar.Rohfuyyah hi if,l,};iy<lf A/.Bdijllrl' p. 134138.

4 'Awl: An incn:1ISC in [be number gf loh ilreli and a 0=,," in th=ir iiJl1~\IIIb: a<:<ording to tb. d<o<rving porti,
5 The Akdariyyah: The ca.. including a nu.b.and, on< ful! sist, 6 Set the footnot.. in AI.&ljutr p. 1)8 , 7 Set AI 'Mho A/.FJ'id (1/110),
0

matMr. a pat.rnal grondf.th ond

CHAPTER

The Mu 'addah'
What h:l.$ bttn prtviously discusstd, namely the inheritance of the paternal grandfather t.esides the siblings, is ..dated to the case ofth", existence of only onc type of siblings, either full siblings or paternal half siblings. As for the C1t!C when there 3ro a paternal grandfather, full siblings and paternal half siblings,

then the fu 11 sibli ngs rount thdr paternal half siblings in thei r favor against the paternal gr.andfather to decrease hi~ share. Then. after th e paternal gr.mdbther
hls ilia..." the full siblings tili the .ha,.., of the palunal half siblings. If there is only one full sister existing. she gets her prescribed share in full and the !'tmainder g"'" to the paternal half siblings.
Thus, the full sibling counts the pat .. rnal half sibling against the paternal grandfather, as they ooth type, of siblings share the same futher, and that the side of the mother of the full siblings is blocked by the existence of the paternal grandfather_ So, the full sibling counts the paternal half sibling against the paternal grandfather to decreas.e the latlc r', share in ca~ he ge\$ it through the ,"uqJs~,"~h so that he get' at most one third of the estate, or one-third of th e remainder of the e,Late, or one-.hth of tbe e,Lale.
tak~

'"

V INHERITANCE

Another reason ~hind th~ mu' dddah is that the full siblings and the p;lternal half siblings are equally related to the paternal grandfather, as they all are his son's children. ThUs. the paternal half siblings an: considered in the division of the estate, which is not in favor of the paternal grandfather. After the paternal grandfather', sha"" de~re,..es (due to the existence of the paternal half siblings), the fun siblings block the paternal half siblings and take their share. as ifthen: is no paternal grandfather'.

When is the Mu 'dddah Considered!

This method is effected when the full siblings' shacr less than double the

paternal grandfather's shart, and that the remainder after distributing the
pre&erikd shar"" is mo", than one-fourth of the estate. But if the siblings' sha", is equal to double the paternal grandfather'S share or moce. then there will no need to apply the mu 'tldd<!h.

The Forms of the Mu 'dddah:

There are ~ixtyeight cases in which the method of the mu' Mduh i~ applied. The reason for restricting the form. of the mu "6.ddah to such a numb", i. that the full .iblings' share must be less than double the paternal grandfather's ~hare. There are only five forms in this regard, and they are a~ fol1ow~: 1) A paternal grandfather and one full sister 2) A paternal grandfather and two full.i.sters 3) A paternal grandfather and thre<: full sisters 4) A paternal grandfather and one full brother 5) A paternal grandfather and one full brother and one full sister These five forms may involve paternal half ~ibl ings SO that the Siblings' share may reach doubl e the ~hare of the paternal grandfather or less. I ) A paternal grandfath er and one full sister: ThLs fu rm involves five possible cases a. follows: One full sister and a paternal half sister One full sister and tWO paternal half sisters One full.ist .. and three paternal half sisters One full sister and a paterna l halfbruther One full sister and a paternal halfbrolher and a paltrnal half sister

301

2) A paternal grandfather and two full $isters: This furm thru possible cases as follows: Two full sisters and a paternal half sister Two full sisters and two paternal half sisters Two full sisters and a paternal halfbrolher

involv~s

3) A paterna] grandfather and three full sisters: This form

on ly one possible case: Th",e full sist~rs and one patu nal half sister.

involv~s

4) A paternal grandfather and one full brother: This form involves

three possible caSeS as follows: O ne full

broth~r

and

on~

paternal half sister

One full brother and two paternal half sisters One full brother and one paternal half brother
S) A paternal grandfather and one full brother and one full sister: This

form involv." one possible case: One full brother and one full sister and a paternal half sister. The a\>ovementionW a", thirte<:n casc:s. all of which mayor may not include legal heirs who a", entitle.! to p",scribed shares. In case there are hein entitled to pres<.:rib<:d sha",s, their prescrib<:d .ha",s may be one of the following: .. Onefourth ;.. One-sixth ;..
On~ fourth

and one-sixth

.. One-half By adding the cue that does not include an heir entitled to a p",,",,ribed share. th ey become five cases. Wh~u th ese fiv~ ca= a", multiplied by the thirteen ~s mention~d above, the total cases a", sixty.five.
AtJ for the .ixty-sixth cas." it involves a paternal grandfather, siblings, and

two heirs whose p",scribed sha",s are one-half and one-sixth of the estat~ for each. An o;ample of this case i$ the following;

V INHERlTANC

A paternal grandfathtr, on .. daughter, a son's daughter, one full ,ist.. r, and on .. paternal half sister. As r ..gards the sixty~venth case, it involves pll'scrikd heirs who inh .. rit twothirds ofthe estate along with the siblings and the paternal grandfather. This can k illustrated by the following example: A paternal grandfather, two daughters, one full sister and paternal half sister.
M for t he sixty eigh th case, namely the last one, it indudes tW(l prescribed

heirs entitled to one-half and one-eighth of th .. estate, along with the siblings and the paternal grandfather, such as the following case: A paternal grandfat .... r, one daught .. r, a wife, on .. full siskr, and on .. paternal half sister.

Is there any po$Sibility that the paternal h alf siblings get any share along with the fuU siblings in case of the mu 'addah?
If the full siblings include a mal .. brother, or two or more full sisters, then ther" is no possibility that the paternal half siblings can get any shar .. of the estate. However, if there is only One full siste., she gets her full shall' even if it reaches half the estate (as previously mentioned), and if there is something left, it goes to the pot .. rnal half sibl ing..

Among the cases in which there is something that may k left for the paternal half siblings are the four cas .. s judged by Zayd T Th~bil, so they all' bn called th .. Four Zaydi Cases. They are as follows: 1 The 'Ashriyyah (i.e. using a com mon denominalor oflO; decimal) : This case includes a pate r nal grandfather, one full sist er, and one paternal half brother. Though th e.le pel"!ions art entitled to take five shares of the ..state, it is called 'AshriY)"'h. for a common denominator of 10 i. consider<:d in order to r<:ach a natural numbers . The reason of co nsidering a common denominator of 10: The full sister is entitled to tal<.- half th .. ... tat ..: however, thell' is no integer number resulting when dividing the number 5 (shares). In order to settle this iMU", (2) is to be multipli .. d by 5 (the number of shares) that ends up a.> I() shares. Thus, the paternal grandfather gets twofifths (4 shares), th .. full sist ... gets hal f (5 ohar ... ), th .. paternal half brother gets the Il'ma ining one share. See the following table;

Paternal grandfather

'''' ,

to Ihares

""

Full $iSle. Paternal half brotller

2~

Th e 'l,hri"i,."ah (L.e. the caM de~ndlng On using. C<,Immon denominator 20)! Th is is who> Illtt\' are a paterna l gnllldfather. one full srn,"," and tWO p.a.lemal half sisten.. So. the principle of division ;s 5 (the number of shares, bearing in mind that I male's share equals that of two females), similar to th e above case. nat is, the pa ternal grandfather get1l two sharel thro ugh the muq<lsam<lh, and the (ull ~ister geg half the n lale. Ho~r, there is no ;nl~r fUuhing (rom dividing fl"" sham! by 2 10 gi"" W fuU sister her

'" "

,
4

pre$Cribed half. Therefore, for easier , .kulatio"s. is to be multiplied by 5 (the numbe r of mares), wh ich results in 10 shares. So, Ihe paternal grandfather gelS four shun (2 X 2 4 ), '!.nd the full sister
gets half the estate, nAmely five shares. After th at, there is one !.hare kft trn.t gun to the tWO !WemaJ half l isten and it is to be equally

divided betw~n them. However. the~ is no integer by dividing such remaining share. 10 2 is to be multiplied by the 10 (the fi rst wmmon denominator in this case) that results in twenty (the new common denominator). In this way. the paternal gnndfathds 5hare ls eight sharn (4J{2 8). and the full si<ter's $line is ten shares (5X2 10). Then, the two paternal hal f ,isters get the ~maining two sharel (2Xl 2). Le. one ,hare for each. This can be illustrated in the following table:
,
Pate"";~ather One full sister

'Xl

TWo pc.temal halfsisll:rs

, , '" "
4
1

IOXl

10 .!lares 8 10 2(lforemch)

lM~

Moreover. this issue can be senled by followins another method. are fiw wrn: the paternal grandfather receives two through tbe mwqdsamah. the full sister geu half the estate. namely (2\10) shares. Thus. there is only a half share (112 share) remaining for the tWO pAtt mal half siJltn. S<I each of Iht two half sisters gt!$ a fourth

V INHERITANCE

shllle (1/4 sha~). In order to avoid fractions, 4 is multiplied by S (thf: numbf,r 0( shar~) that rnults in 20 shar (i.e. using 20 as a common denominator). Th~ pilternal grandfathf:r gets eight shares (2 X 4 8). The full siSler gc1s half the es[ate, which equals 10 shares. The two paternal half .i.tel'$ get two shares: one for each. ) . Th~ Abbreviated ea... ofZayd: This Cl~ indudes a mother, a paternal g randfather. o ne full.ister. one pillernal halfbrother, and one paternal half sister. II Is so called beaUS<' the common denominator in this cut is loa iccording to tilt mllq4S11nuUt, and it \:all be abbreviated through dividing it by 2 Ihat ~sults in 54. For more illustration, the main number of sha,..,. is six. for the mother gets <.me-.uth of the estate. and Iht: remaining five sixths are: dividN among the paternal grandfather and the siblings through tht: m~h. Therefore:, the", must be six shares aceord ing to their number (a mal,,s 'ha", equals the share of two fema les); however, tht: ,..,maining five six ths cannot be divided by six. So, 6 (th e common d enominator) is to be multiplied by 6 (their number of shares) so the result is l6 shalU. n.e mother gets o~sixth , namely equals 6 sham (6136). The remaining shares are five sixth of the estate, namely (30136), of which the paternal grandfather gelS ten shar (10136) through the muq<lsamah. The full.i.ter gCls half the eSlAt e that equ als 18 sha",s (18136). Tile ",maining two shares (2/36) are to be d ivided among the piltemal half brother and the pilternal half sister. However, the IWO shares (2136) Annot be d ivickd by Ibree (for the mak gets doubl~ the share o{the female), so 3 is to be multiplitd by 36 (the common denominator) that result . in 108 sha",s (as a new denominator). Thus, the mothu ta1<.,. 18 shITn (6X3 18). The paternal grandfather gets 30 shares ( IOU 30). The full !iSler lake$ 54 shares (18XJ 54). The palernal half brother and pilternal half sister get > shares (2X3 6); the brother lieu 4 $ha"", and Ihe sister gel' 2lohar.. (for the male gets doub!.: the share of the female). After doing sueh cakulation. We find that both the shares and the common denominator (108) a m bedivided by 2, mulling in (54) as common denominator. Thus, the mother gets 9 shares. the full sister gets half the .,.tate, namely 27 slures. the paternal grandn.ther gelS IS shares, th e paternal balfbrOlher gets 2lhar.. and the pilternal half 5i~ter onc share. Sec: t he following table:

'new


MotheT Paternal grandfather
Full sister

, ''''' ,........ ""

J05

"""'" """""'"
Paternal lullf siSkr

6 10

18

,..
4 2

18 30

54 ...."" 9 15 27 2

4 The Tu -bliyyah of lard (i.t. the ease depending on 1I&In8:_ (Gmmon

denominator 90): This elS(' ind udes I mother, I paternal grandfather, o ne full sister, two paternal halfbrothen. and one paternal half sister. It is """led Tu 'Iniyyah 1$ the COmmOn denominalor in such a case

is ninely.
The _ " for wing the common denominator 90: One-third of thoe mnairwkr of d'IC Wale. after giving !)m-Ilxth of tne Qtak to the

mother, is the bat mare for the patunal grandfather. n.at is, the COnuDOn denom inator betWffll the onHhird (of the rmWnoo) and the one.sixth (entitltc! 10 lilt mc.therl is IB Moreover. we can COfUider .
the common denominator 6 (to spify the one-sixth oflhe mother).

After the mother gets one ixth. the remai ning fi""sixths do not have a third as I natural number (i.e. integer). For el$ier calculations, Wc multiply 3 by 6 thlt resulu in IB as a common denominator. The mother gets one-wlh that equals 3 shares (3118). The palnnal grwldf.uher gels one-third of m e ~mainder, i.e. S shares (51 18). The full sister gets half the e.tale, k. \I $~res (lI/1 g). The remaining shan: cannot be divided among paternal halr liblings. Then:fore, 5 (the number of sibling; mam as they m: two male, and I fcrnalc) is to be mu ltiplied by 18 (the co mmon denomin ator) that results in 90 (th e

t""

new common denomInator):

)0

ThemothergelsIS,haU$(3X5 IS) The paternal gnndfat""r gets 2S shares (5XS 25)

The fuU sister get s shaJ"e!l (\lXS .5)

}o}o)0

The I\OOJ paternal halfsiblings get 5 shares (I XS 5); each of the two brothe,.. gets 2 shares and the 5i ster gets the remlinlng one share. This I3.JI be illustrated through the two following tables:

'"
Mother

IIX' 3

........
" "
43

Y lNH ERfrANCE

Paternal gnlndfather
Flll! 5ister

, ,
I

TWo patemalluolrbrotbers
One paternal ..... fsi5ler

4(2 for cacb)

Mother

, ""

11)(5
3

98.lIun

paternal grandfatbH Full sister Two fIIIlemaI halfbrolhen

One paternal hal fsister

, , ,
I

43

" "
I

4 (2 for eacb)

After elaborating on the ;!.Sues and cas6 of Inheritance. tkm: is nothing left e~pl what iI related to th '!" subject of "Inheritance Calculation", [t involves of the topics of calculatio n. mundsakiwh ' and divilian of the estate, which are detailed in the bookI dedicated 10 tackUng the prncriW shun of inhuitan<:c.

End notes
l1M Mu' dddah: Dt<;'Ullng the pat. mal grandfath.r. "'. re by tM full.ib~ngs through the ... i.t.n~ the p,ue' ol l ho ll ,Ibli",. , ond !fltO bloddns the potern,l half sibl;np by
the full liblinlP U ..... I.tt .. . r< worth ;"r in Inhc.it. oc . 2 See: 041_'NI},b Aj.F,f'; a ( 1/ 114). J M~ refers ", !he ptooraof re-di'lidiJl& th<ntok ln wo . legal l\e;r dies btfon: ,"" divis;o.a oflhr 'ahnito"", oft!>< fu.t ~ In JUd! I cue, the inhmtanot Is I(J IN' ~ivid..:I Into <Or'IIIkIenIion th<drath oI tlll'l .... 110;, occor-din& to Cfttlin kubtioolJ.

,w..,

CHAPTER

Dividing Prescribed Shares According to Assumption and Precautionary Procedures

As for all the issues of lnherlllnce di.Kussro lbove, they .due to cer talnly of the death of the inh erited penon and certainty of exi5tence of the
inheri tor,. Those issues do not involve any problematic 155UCS as regards the division ofthe estate. But here we will shed light on lome problematic !"~I In wh ich neither the case of lhe inherited ~rson nor the case of tht inherit!;>r is dided. ThaI is, t here rnay ~ uncertainty concerning the exiMu.u of 50fJlC heirs., such 11 Iht ~ of the fctus, drowned pr.-sons, thou who are killed u nder collapsed build ings, t1w miuing ptl'lOn5, and the like. Mor>ver. such problematic issues may be related 10 the gcnd~ of !he heirs; whetho:r the heir is male or female, IUch as Ihe case of the hermaphrodite and the fetus.

'"

INHERITANCE

Owing 1 the ul\(cttalnly in such casn, there ire spec ial chapters ded i0 cated for such i.s.sun in the $IOOy of inheritance entitled -The Chapters of Dividing Sham; lCcordin8 10 A... umption and Precautionary Procedu!'e$." They are as foUow$:

1-'The doublful hermaphrodite 2-Thc ftttu

3-Tbe missing person

4The drownfd and tOOst kilkd undrr c.oU~pstd buildings

CHAPTER

Inheritance of a Hermaphrodite
According to the .chola,., of inh eritance, the hermaphrodite i$ the pcrson who has h()(h the sexual organs orthe male and the female. or the person who has not any at all.

A hermaphrodite heir can be relate.J to the de<:ea""d ... a descendant, a

sibling,a father's sibling. or an emandpated slave. All such peapl.can beeither

male. or f.,males. However, a hennaphrodite cannot \>(, a father. a mother, a grandfather. or a grandmother, as the sex of each is aluady known. Further, it is uur.uonable to .ay that a husband or a wife is a hermaphroditt. as it is impermissible to conclude the marriage of such a 1"''"00 as long as his gender is not decided.

Allah, Exalted be He, created humankind as mal"" and fema)"". Allah, ualled be: He, says:
"0 m ....J:i"d, f ear ytnl, wrd, ",h" ~rea~d you [mm ''''~ M>,u ""d cuaud from it iu maIL atuJ disp~rsw /ram both at th~m many mt" and lo'()mtll .." (Qur';\r]: An-Ni,r: 1)

310

V INHERITAN CE

Allah, Exalted b e He, also sap:

Allah belongs the dominion of tM he.lVem and the earth; He createJ what he wills. He gives to whom Ht wills female {children], and Ht givts to whom He wills males." (Qurh: Ash-ShO.n1: 49)
~To

Needless to say, Allah has shown and explained the rulings pertaining to each gender and He did not state the ca.. of the hermaphrodite. This means that a person cannot be called a male and a female at the same time, as theer is discrepancy ~~en the feature. of each gender. In order to dilltinguillh between the two ..""s, Allah, Exalted be He, .. t distinctive featuers; however, some dubiousness and confusion might happen due to the existence of both th e male and female sex organs. Muslim scholars unanimously agree that hermaphrodites inherit according to the most predominant features they have of the two sexes. For example, a hermaphrodite who urinates from the male organ is to in herit the .hare of a male, and the one who urinates from the female organ is to inherit the shaer of a female. This is ~cause, the sign of urinati ng is among.t the most common and indicative signs designating one's sex, as it is a natural sign, whether one is a child or an adult . So. whoever urinates from the male organ ill conside... d a mal", and vice ve rsa, and, in such a case, the other organ is considered an additio nal on e that goes back to a natural defect. In this re"f'N't, if a hermaphrodite person urinates from both the male and female organ .. the matter is decided according to the organ from which such a person urinates much. But if such a person btgins urinating from one of the two organs, then starts to urinale frolll them both, the malter is decided according to the first organ urinated from. In this regard, if a hermaphrodite child st~rts urinating from both male and female organs at the same time and with similar quantity. it is not to ~ decided until such a person reaches puberty. SO as to be able to decide then what the child's actual sex is. Thus, such a person'. case continues 10 ~ problematic until the age of puberty, as it is expected to ~ decided at that time.

As for the signs that appear at the ase of puberty. they are of two kinds: some ...Iate to men and others relate to women. W ith regard to the first kind, nam ely, the sign. that erlate to men, they involve the growth of the hair of th e moustache and ~ard. and ejaculation. So, if any of these signs appears, that person i. a male. A. regards the ,""nd kind, nam ely, the signs that relat e to women, thq invol'n menstruating. prtgnancy and growing of breasts. Thus, if

311 any of such signs appear, that p"rson i, a ~mak However, if the signs of being a male or a female do not app"ar at the "ge of puberty, such a person', case is ,till coruide""d problematic and the situation is nOI expected to be decided. In ,uch cases, it is for the Muslim scholars to decide Ihe way according to which ,uch a p"rson inherill;. The"" a"" differenl opinions of scholars concerning the inheritance ofh.rmaphrodites and those involved wilh Ihem in cases of inheritance. These opinions are as follows: A group of scholars vi ew Ihat the hermaphrodite is to be gi""n the ,maller share (whether he gets it as a male or a female); yet, they say that this d~s not applytothe rest of inheritors. Therefore, if a hermaphrodite i, conside""d to be a male, then he receives the least possible share for him as a male. However, if a h.rmaphrodite is considered 10 be a ~male, then she gets her share. Morwver, if the hermaphrodite is not entitled to any,har<: in the deceased's estate in one of the two cases (being a male or a female), then such a person is not to get any share. Some scholars view tnat the hermaphrodite as wd l as other heirs are to get the smallest possible shares they may ""ceive, and the remaining ponion is to be reserved until the situation of such a person is decided, whether a male or a female, or that the heirs reach an agreement concerning the division of the remaining portion. Some other scholars view that the hermaphrodite is to be given half the share of a male and half the share of a female, if such a person is to inherit acrording to both possibilities. However, if the hermaphrodite is to inherit according to only one pos.sibility (e_ , being a male only), such a person is g_ given half the sha"" entitled to such a pos.sibility, This is the applicable ruling whdher it is expected that the "ctual sex of such a person be decided or not. Anothcrgroup of !(;holars maintairu that the.., must k distinction between the two case., Le. whether the actual sex of the hermaphrodite is expected be known or not That is, if the sex of a hermaphrodite is expected to be known, such a person and other h eirs get the least possible shares they may dese"",. So, the hermaphrodite and other heirs are to ""ceive the specified shares of the inheritance, and the remaind. r is not to be distributed until the sex of the hermaphrodite is known. However, the hermaphrodile is to be gi""n half the share of a male and half the share of a female if such a person is to inherit according to both possibilities. But if the hermaphrodite is to inherit acrording to only one possibility (e.g., being a male only), such a person is given half the shar~ fntitlfd to such a possibility. And Allah, Exalted. be He, knows best.

CHAPTER

Inheritance of a Fetus
[n ~ cases. tM legal heirs may indu& a fetus. In fact, iOrnC prublenu may ~ as reganIs lhe fefU$'s life or death, being a male or. ~, one or mort, t IC. Thus. the ruling in wch caKS differs accord ing to each possibility. Hence, Muillim scholars (may Allah ho."" mercy on them) pay gml attention 10 the cur of the fetm. u Ihey dedicate a whole chapler for it in their boob o( in k"ritanc'" Ht rt. the issue that concerns us is the ca~ of a d eceased lcavins beh ind a pregnant woman, whether the fetus Is t nt itled to inherit (when del ivered al;",,) or that his/M. oh..., is chminatw. (iA. blockt<l) in all cun, Or Ihllluch a fetuJ is enti tled to inherit in some cnea and blocked in DIMrs.
Iu for the fetus that is uniformly asreed upon hislheT right in inheritance. thert $h.ouId be two condiliOJU;:

Flnt: Making sun: of the aistma of~ fttus in the womb of. woman at
It;" !ilnt of th. inherited ptrson's do:ath, cwn If it is just drops of male and

f"mile sexual disc:har8e.

V INHERITANC E

Second: The fetus ildf,li""",d ali"" and ;n a slable condition . This is due to the badilh of the Prophet (PBUH) in which he $aYS:

-If <I ne"'bom cries (IJ' shows any otht, signs indicating life), film it is
10 gtl a silare of/nllerilance:'
(RdatW by AbO. D~wiid. and it is rq>(>rtW thal lbn Hibb!n gntded it as a I/lhlb (authentic) badftlr)

The signsoflife,concemingthe rkWbornchild.lnvol""crying.sncaing.

moving or any other signs indicating lif~. and if is not "",",",110 crying. Hence, li'I~ p~nceof sigruoflife ind;catelti'l~ stable condition of the n~wborn and thu.l the 5e<:ond condition is fu lfilled As fo r the fi " l condition, namely the uistence of a fetus in the womb of a WOman al th e time of the inherited ""rson~ duth. it Cln be verirted by ~ing born within the specified period of prq;nancy. the maximum and ti'le minimum period of pcqnancy. As. regards the "".iod ofprrgnancy, th= .", ti'llft possible cases as follows: The first case: Th is;s when 11 woman ddl""" a newborn ali"" before the minimum p<'flod ofpregnancy pas.sH; in this <:ast. ,he new born gets its shall' in the n tate as scholars una nimowJy agll'e. Thus. when the woman delivers that newborn for a ""riod less than six months after th e death of th e inherited person. this indicates that ~he was actually pregn~nt during the lifetime of the inherited person. According to the consensus of Muslim schol ars. the minimum period of pregnan(y is six monlhl. This is due: tn the statement of Allah. Exalted be He, in which He says:

...and hi. tn,a' um ..nd """"';"g {period} b ,"Irty ntOlltIu. .(Qur'in: AIAhqlf. 15) Allah. Exalted bf: He. also says:
~MOf"".., ~arl ...-

,"Ily " ....,,, {h. b""4stfenlJ c""d~1I two c~,"pkt" (Qur'ln: AIBaqarah: 233)

'''t/,

So. if the ""riod of bmlstfenling. t~nty fOllr months. is subtracted from thirty montlla. the Il'maioing ism months which i.tl'lt mini mum .,..nod of p~ncy.
The K(ond case: This i5 when the fetus is born after the muimum ""riod of pregn;ll1cy puses after the duth of the inheritw pnWn. [n iuch ~ caSt', th~ newlx>rn does not have any right in the estate.

Chap!<I i8 : loberi,,!\ o>f. f<m,

.l i S

This is ~cau"," th~ ddiv~ry oflh. child after the maximum p eriod of pregnancy indicates that pregnancy has hap~ne<! after the death of the inherited person. $chola,.,. differ with regard to determining th e maximum period of pregnancy. There are three opinions:
I. The maximum period of pregnancy is two )",a". This is due to the

statement of the Mother of the Believe,.,.. Ni'hah (may Allah \}., pleased with her), who said:
Th~ f~tus

yeal'$.

.>

does not stay in the womb ofth~ mother for more than iW<)

Th ere is no room for ijtihJd regarding this statement, as it is dealt with as a marfii' (traceable) hadith. 2. The maximum period of pregnancy is four years . This is \}.,cau "," when there is no legal text, we must resort to the actual cases, and some cases of pregnancy have ~en ,..,porte<! to last for about four years. 3. The maximum period of p~gnan(y is fiv~ years. The preponderant of those opinions - Allah knows ~st - is that the maximum period of pregnancy is foUl" )"''''''. This is based on the fact that there is no decisive proof indicat ing such period, so we should consider the actual cases, and it truly happened that ~om. cases of pregnancy lasted for four years: and Allah know, best. The third case: This is wh en the newborn is delivered after a period more than the minimum period of pregnancy and less than the maximum period of pregnancy. In such a ca",", if such a woman has a husband or a master (i.e., if she is a slave girl) who copulates with her during that period, the born child does not have any right in inheritance. This is because, there is no evicknce that pregnancy happened during the lifetim e of the inherited ~",on; pregnancy might have happened due to copulation that took place after the death of th e inherited. pcl'$on. Hown'er, if that woman does not have a husband or a master or that they are absent during that p"riod, or that they cannot copulate with her due to impotency or for any other reason, then the newborn is entitled to inherit, as there is a proof indicating its uistence during the lifetime of the inherited pet"S{ln.

'" In this regard, Muslim

V IKHERTTANCE
~holan;

lInanimouslyagrtt that when the newborn

cries, then there is a certainty that it is born alive and is in a stable condition.
However, they differ as ..,gards thwe signs indicating life other than crying, such as moving. suckling or breathing. Some scholars view thallhe sign of the

newoorn's life is restricted 10 crying, "" eluding any ofthe other accompanying
signs, Other 5(:holal"1 consider the sign of crying as wdl as any olher signs indicating life, The latter is the preponderant opinion, as the sign of life is not restricted to crying, but it includes other signs, such as moving and the like, as viewed by W m e scholars. Even if the sign oflife refers 10 just crying or

making any voice, this does not mean that we should exclude any other signs
indicating life; and Allah knows best.

How to Give the Fetus Its Share

If th~r~ is a fdus among the legal heirs, they should wait until its birth to know whdh~rthe newborn will M entitled to any .har~ in th e estale or not, so that the estate is distributed at onc~. But if the heirs do not agr~ to wait until the baby isddivu~d and demand th e distribution of the estau, Mfol"C' its birth, is that ~rmis.sible for them? Muslim scholars have two different opinions with I"C'gard to this issue: The fint opinion, The heirs al"C' not permitted to distribute the estate. This is due to the uncertainty concerning the Case of the retus, as there al"C' many pos.sibilities, such as the number of r. tu .... Such a matter may cause a great difference in the fdus'. share u well as the shares of oth. r heirs. The !ioecond opinion: It is permissible for th~ heirs to distribute the estate before the child is born and they are not obligated to wait, a. it may cauSe harm to them. This i. because some of the heirs may be needy and the period of pregnancy might be long. Thus, according to this opinion, the share ofthe fetus is to be considered so that there is a gl.larantee that the newborn gds its due share:. So, there is no need for ddaying th e distribution of the estate. According to the appare:nt circumstances, the second opinion is the preponderant one. Yet, the scholars adopting the second opinion differ as regards the amount (share) that should M left for the fetus. This is because no one can know the actual case of the fetus except Allah. Besides, the case of the fetus involves so many pos.sibilities: Ming alive of dead, o ne or mol"C', a male er female, eu. Undoubtedly, those s~ral possibilities havt their effect

Chapt., 18; 1.heri"r.ce <>f .I'w

317

on the sha", of the fetus as wdl as the shares of those involved with him in the inheritance. The",fore, scholars differ concerning the amount that should h<: left for the fetu . The", are three opinions with regard to this issue: Fltst: The..., u. no criterion ",garding the number of fetuses a woman may carry. He,"", the criterion is the cases of the other heirs who inherit along with the fetus. That is, if a person inherits only in some cases or hislher shal"<' is unspecified, such as the case of the agnate ",latives, such a person is Dot to be given anything. As for the heir who inherits in all ca.ses and whose amount of share may differ. such a person is to be given the least sha..., helshe may get. With regard 10 the heir whose shal"<' does not differ in amount in all cases, he/she is to h<: given hisl her full share. After doing so, the remainder of the estate is reserved until the Case of the fetus is dedded. SKond: The fetus is to be tl"<'a ted according to what is h<:sl for it (Le. the possibility according to which the fetus may get the largest possible shal"<') and those inheriting alo ng with it a,.., to receive their least possible sha...,s. Thus, the bigger sha", of that of two males or that of two females is to be reserved for the fetus, and the other heirs who have specified shares al"<' to receive the least of the shares they deserve. The",fore, after the child is horn and the case is dedded (concerning sex and number, etc.), the", are thr procedures to be followed: I The newhom gets it. due share from the reserved amount, and what ",mains i. to be redistributed among the heirs. 2- The newhorn gets all the ...,served amount ifit equals its share. 3- The newhom completes its due share from the share. of the other inheritors if the reservffi amount is less than ils due sha",. Tbird: A share equal to the sha", of one male or one female, the larger of which is to be ",served for the fetus. The l"<'<lSon behind this is that it happen. in most cases that a woman ddivers only one baby each time. Hence. the ruling should be establish~d on what happens most often, According to this opinion, the judge is to assign a sponsor, from among the heirs. to guarantu that the newborn babies will get their full sha",s (if they are mo", than one). Thi~ is btca~ a newhom cannot ask for its rightful shar~, so the judge does this on the child's behalf as a precautionary proa~u(t.

v INHERfrANCE

Finally. the soundut ofl~ tn= ofo""mrnti(lntd opin ions is that which involves more precaution. namely th., &e<:ond on.,. Thlt is. it happens many limt$ that women Siv., birth to twins. but ddive-ring more than two babies ntrdyoccurs. Besides. assig ning a sponsor. as mentioned in the third opin ion, m~y be difficult: even if it is done. some mallers may hap~n and pre""nt such sponsor from obM:rving th., ~igned mission . Thus. the newborn child""n may not reccivr their due sham ifthq tu rned oot to be mOll' than o ne child, so their righlS may be 1o6t.

Acwrdiug to the :ooundesl opinioo. there art l ix p!KSibilities for the fetus.:
!) T~ child may be ddi""rtd dead

2) It may be only one male 3) It may be only o ne female 4) It may be o ne male and OBe female S) It may be two males 6) It may be two femalu These I"" ~ix possibil ities. for exit is I &pific cast at regards the distri bution of the estate. Besides. the distribution Qf the estlte is tQ be accQrding to, mathematical proctss fQr each possibility. The cases of the heirs are tQ be cQnsidered. As for th., heir who gets Ihe same share in aU cast .. he/she is to get his/1w:r full share. HQ~ver. tho$e heirs whn&e shares may diffu in amount from a case 10 another are to rt<:ei"" th. least of thei r lhares.. With regard tQ those who inherit in .IOme casu and are blockrd in o thffl.. tMy srt nnfhing of the estate. After that, the remainder of the estate i,to be ~rvN until the fnus 11 deli""red and its case 1$ dKidtd as mrntioned _bOYt; and Allah knows best.

Endnotes
I Abd Dlw6d (2920) 131225): Set &110 Jbn Mijah ( 15011) [lJ121J. 2 AdDl""l'Jllll ()8l'.i) (3221) Ind Al-lIayhaql (l~SS2) 11I7U).

CHAPTER

Inheritance of a Missing Person

The miMing ~l$On mrans the 0"'" wh<);sc $lI te is not dffined and il is not known whether .IM or dead. This may be due 1 tJavel ing. participating in it 0 battk, bring thl~. orbrins captured by enemies, t IC.

Since the missing persons state is nof determined as 10 whether bring aislent or nol. each case of the two has i!5 own rulin,_Sotm ofth~ rulings
pertain to: Hil wife

HI$ inheritance from olhen Bei"g inherit...! by othen Being an dJec\i"" heir on the .n..ra of other hein

'"

V INHERITANCE

As neither of the two possibilities (being alive Of dead) i. considered more probable than the othu, there must ~ a designated period until the reil state of the missing person is verified, providing a chance to look for him. Ifthal period d ap..,. with nothing known about such a person, this will \>( evidence that he is nO longer alive. In view of this, scholars unanimously have agreed to designate such a period; yet, there is disagreement regarding how long it should be according to two opinions:

First opinion: The criterion is the estimation oftbe judge regarding

this period. This is because the original rule is thallhe musing person is alive and this is not 10 be overlooked (Xcep! with a
decisive pr-oof or the like. This opinion is unanimously adopted by the majority of Muslim scholars, whether such a missing person is expected to be safe or deceased, and whether he has b""n lost before Or after the age of ninety. Thus, a missing persoo is to be exp ected to come back until there is a proof that he has died, or that a period ends after which it becomes certain that he has died. St,ond opinion: Thi$ opinion adopn an ~la\xll1lted. view whi,h implie$ that the missing person has two cases: I -If the missing person is most likely to be deceased. ilis imperat ive to wait for four years since he was last seen. To elaborate. persons such as those who go missing in a peri l. while fighting. or in ship wreckage of which some passengers were safe while others drowned. and persons who are lost within the locality - for example. going out for prayer and new:r came back - are to be expected back for a four-year period since they were last seen. If nO newS abo ut a missing persoo is heard throughout this period, he is surely deemed to be dead. 2- If the missing person is most likely to be s.ah and sound (e.g.. those who traw:l for trade. tourism or learning. and nothing is heard about them), it is irnperatiw: to wait until such a person reach.. ninety since his birth. until it is not lihly for him to be living any more, before declaring his death. The first opinion, referring to the estimation of the judge in deciding the period to wait for a missing person to come back before declaring his death. is the preponderant. for such a period varies 3C1;Orning to time, states and persons. This is because communications and transport means haw: made the whole world much .:ioser, quite unlike the pasl.

Ch.p, 19: lnhorit2nc< of a Mi.s<ing l'<rson

321

If the Person from whom the Missing one Inherits Dies

within the Said Designated Wailing Period
If the inherited ~rson ha. no other heirs except the missing person, all his estate is to be withheld . until it is dear (whether the missing person is alive or dead), or the d esignated waiting period is over. Scholars maintain different view. concerning th e wn e of the inherited person who has heirs other than th e missing person. The soundest view is the opinion of the majority of scholars: that is the heirs who co-inherit with the missing p"rson are given the least possihle shalfi. ThllS, each heir is to be given his/her [east amount while the remainder is to be withheld. Hence, the estate is to be divided a.! if the missing p"rson is alive, then as d ead. The heir who is entitled to a bigger share in On e of the two cases (i.e. the missing person's being alive or dead) is to be given the [east share; the heir is entitl. d to an tqual .hare in both cases will be given his/her share in full; and the heir who inherits only in one of th e two cases will be given nothing. The remainder of the estate wlll be withheld until the missing person's state is verified

If the Missing Person is Deemed Dead

The missing person is deemed dead if the designated waiting p eriod has passed with no evidence d isdosing his status. ThllS, his own estate and share (which h e/she has inherite d, as mentiontd in the previollS case) are to be divided among hi, h eirs wh o are still alive, excluding those who died during the designated waiting period. That is because his death was determined later after the death of his heirs who are not then entitled to in herit.

CHAPTER

Inheritance of the Drowned and Those Killed Under Collapsed Buildings

The issue of ma.5ll duths, in which many propIc die and some of them
ThiJ iJ ~use it is difficult to realize who has died n'st to be consid.,,,,,d an inhuitor and who has died I'lff to be considered an hcir. Nowadays. ma5$
deaths frequently happen all a result of road accidenu.. $Uch all Car and train ,oxideo!$, and plaM crashes. M:us dnoths can also be ruuh of buildinll ooIlap$e. accidental fi,." drowning. bombardment, de. With this in mind, the I$sueI invol~ in the ;nhm l'nu of those ~ people, who Irg:a1Iy iohml
.~

legal heirs of other$, is I problematic issue that eauiltS great con fusion.

from (lone another, ~ summariU'<l in flY., cases:

Wh.". all the druaKd p4'rtOm.re known to hive died allhtc Ame time: In thi.! case, scholars unanimously maintain that there I, no Inhuilance,

V INHERITANCE

as inheritance is based upon ""tifying that the heir is alive aftu the death of the inherited person, which i. not available in such a ca~. When some of them are stiU known to have died befo~ some others: In such a case, s.ch.olaf1 unanimously view that th~ who have died later are entitled to inherit from tho~ who have died earlier, since it is verified that the heir has temporarily survived the inherited person. When some of them are known to have died before some others without determining who have died first. When some Qf them are known to have died before some others yet that is forgonen. When the sequence oftheir dcaths is unverified and it is not recogn ized if they all have died at the same time or at different times. In the~ last three cases, there is a great room for probability, ijtiMd (legal reasoning and discretion) and spe<:ulation among scholars (may Allah have mercy on them) who entertained two different opinions: The first opinion: entails that there is no inheritance between th~ deceased people in all these three cases. This view is supported by the opinion of a group of the Prophet's Companions, including AM Bake Ai-Siddiq, Zayd lbn 1Mbit and . Abdull~h Ibn . AbbAs (may Allah be pleased with them all). The three Im~ms AM Hanifah, MAlik and Ash-SMfi] (may Allah have mercy on th em) said the same, and it is one of the opinions adopted in the school of ImAm Abmad. This is based on the fact that one of the conditions to inherit is the ""rtainty that the heir is alive after the death of the inherited person, whkh is not only unfulfilled here, but also doubted, and th e rule of thumb is that there is no inheritance with doubt. Moreover, those who died in the Battles of Al YamAmah, Siffin and Al-Harrah, did not inherit from onc another. The second opinion: enta ils that each of them inherit. from the other, following th e opinion of a group of the Companiollli (may Allah be pleased with th em) including 'Umar Ibnul_Khan~b and 'Ali lbn Ab'; Dlib (may Allah be pleased with them), which is the opinion acted upon in the Hanbalt School. Th. un<krlying assumption beh ind this view i. that each onc of them has certainly been alive and mUgt have lasted until after the death ohhe other. To illustrate, when Umar (may Allah be plea~d with him) Waf informed of the plague that afnicted

o..pter 20: Inh<riWlC< of rh< Drown<d .<1<1 Tho"" K;[kd U<I<l<r Coll.psI ..

Ash ShAm I and that whole families died as a result, he orderalthat the estates of the dead p"rsons would be estimated according to the shares they were to re~ive from one another, and then the Jivingheirs would inherit from the dead p"rsons '. It is stipulated that the living heirs of the dead p"rsons do not differ with regard to the precedence of one to another in the order of death. When every heir claims that his inherited p"rson has died later. with no evidence, then they have to take oaths and no inheritance is to take place. According to this opinion, every heir (among the dead p"rsons) inherits from the original estate of the othe r dead heir excluding the new estate. To elaborate, if an heir is assumed to ha~ died earlier than another, the share the latter gets from the fanner is to be distributed among latter's live heirs only, Le. we exclude the fanner from whom the latter has inherited, and we reverse the assum ption, and apply the same way of distribution. The first view, indicating that they do not inherit from one another as no inheritance is to be made with doubt, is the preponderant one. This i. hecause the actual status of the deceased Ones (the heirs) is unknown, and what is unknown is deemed nonexistent. Moreover, the precedence of the death of one another is unknown, so it is insignificant in this case, Besides, it is not reasonable to have deceased heirs inherit from one another, as inheritan~ is made to let the heir make use of the inherited property, which is not the case here. Also, making the deceased p"rsons inherit one another is a contradictory view. This is because giving a deceased heir from the estate of another indicates that the former has survived the latter, and then giving the latter from the estate of the former indicates the opposite; this implies that each of them has died before the other, which is not logical. With this in mind, the preponderant view is that only live heirs inherit the estate of the de~ased ones, in order to adhere to what is certain and kup away from doubtful matters; and Allah knows best.

Endnotes
1 A;hSh1rn, n.. Levant the region covcring Syria. lebanon. Jordan. and p. lestine. 2 lho AbiI Shaybah (31337) [612791.

CHAPTER

Inheritance by Radd
Acrordin8 to IOChola ... of inh~rilanc~, t}w, rodd 1Tl~~n$ giving the n:maindcr

ol the "Iale (after tile prescribed shares are divided) 10 I he legal heir,; rnli!lrd
1 prescribed shares, in caw there i no agnate nlative() enlilled \0 gt't the 0 n:main&r. .... llah. Enlttd "" He, Stilled [he p!l'S(ribed shares as 1Wf, o nefourth. ont~8hlh. two-t hirds, onc-third, and one-Ib.th, and nplainni bow

the agnm males and fenu.lts inherit. The Prophel (PBU H) also uid: "Gi~ the Jharcs of I~ i..Jteriflltlct (prm:ribnl in Ihe Qurlhr)
those who are en fitled to rya;,'t: them. Tire"
wllMt~er

10 nm<l;ns

should bl glW''' to flu. closest malt .dlll;Ye of Ihe Jeuased,"' Thil noble bad/lh darifico the text of the Glorious Qur'ln l nd puts the
heirs of both types in th e right order: ThOR entitl ed 10 re.:eive prescribed shares th t n the agnate relatives. According to thi s b.ad/tlr, whenever both ly!"'S Ut involved in a caw "finheritance, those entitled 10 prescribed shues are to be given their due shares fint, and lhe.n the. ,..,malndcr, if any. is to bc given to the agnate ,..,Ialive . Jf the .... an: agnate n: lalivcli only, they an: In be given the wholf UIAlt divided according 10 their !ha""

V tNHERITANCE Th( problem arises when th~u are persons entitl~d to prescri~d shares wh()~ shares of th( estate are less than the amount of the estate, and there are no agnate relatives to get the remainder. In such a case, the remainckr will be redistributed among those entitled to prescribed shares in proportion to their prescri~d shares, e:<eept the two spouses, according to the following proofs: First: Allah, Exalted be He, says:
ki"dred by blood art IItartr to olle allother regarding i"herltance ill the dtrru (Jrdailled Iry Allah ...~
~... B ..t

(Qur'an: AI-AllfM: 75) Those entitled to the prescribed sharesare the deceased's blood relatives, 50 they are more entitled to the deceasc:d's estate than an}'Qne dsc:. Second: The Prophet (PBUH) says:

"lfallYO"c kaves a property. if goes to his heirs."

(Related by AI-BukMrI and Muslim) ' This ruling is general in all types of estate left by the deceased, including

what is left over (the remainder) after distributing the prescribed

shares. Thus, onl s legal heirs, who are entitled to prescribed shares, are more entitled to one's estate than anyone else.
Third: Sa ' d Ibn Abo. Waqq4 (may Allah be pleasc:d with him), narrate.;! that he said to the Prophet (PBUH) while he was visiting him ~use he was ill:

"0 Messellger of Allah! I havt 110 heirs except my ollly .u.ughter."'

The Prophet (PBUH) did not deny restricting the inheritan ce to the daughter. If it wue impermissible, it would not ~ approved by the Prophet (PBUH). This denotes that the one entitled to a prescri~d share gets the remainder of the estate if there are nO other agnate relatives; and this is what i. m eant by the radd. The ,add is applicable with regard to the persons entitled to receive prescri~d shares except the two spouses, for they may not have a common blood relationship. Thus, the husband and the wife are not induded in the general denotation of the following v~rse:
kitU1rtd by blood an: to o,,~ ""other r~gardi"g i"heritana I" the decree ordaill~d by AJ/ah. ~ (Qur';in: AI-AnBI : 75)
~.. B,.t

,,On,

329

Scholars ha"" unanimously ag=d that th~ two spoUSl:S are not among thos~ who are to ~ giv~n the ezcess of estat~. y~. il was reporkd that ' Uthm!n Ibn . Am.n (may Allah ~ pl~asNl with him) onc~ judgNl that th~ r~maind~r of th~ ~'tat~ is 10 ~ given a husband. Scholars view that 'Uthm~n's judgm~nt may have been due to a reason other than the mdd. such as ~ing an agnate relativ~ o r having a blood relationship with his wif~; and Allah knows best.

Endnotes
t AlBukMrt (6732) [12/l4]ond Muslim (4 117) [6I5-4j. 2 Al-Bukhlrt (6731) [l2l13]ond Muslim H tJl) !6I6tJ 3 AlBukhl.rl (1295) [36I2\o[ ond Mu<lim (4145) [6179 ]

CHAPTER

Inheritance of Kindred by Blood

According 10 scholars of inheritance, kindred by blood are the rdatives who are not entit led 10 have prescribed shares nor are they from one~ agnate

relatives. They are offour typeli: First: Those who belong to the deceaud, namely daughters' children and the children of the sons' daughters and so forth ;n a descending lineage. Secon d: Those to whom the deceased belongs, namely the 000 inheriting grandfathers and grandmothers . and so forth in an ascending lineage. Third: Those who belong to the parents of the deceased, namely the
sisters' children, the brothers' daughters, the child,..,n of malernal half brothe ..... and whoever is rdated to thedeo::eased through litem, and so

froth in adescending lineage.

332

v INHERITANCE Fourth: Those who belong to grandfath ers and grandmothers of the deceased, namely Ihe deceased's falher's maternal half brothen, all patern al aunts, all female palernal cousin s, all maternal uncles, and all malernal aunts, no matter far Ihey (a ll these relatives) are, and their children however low in a descending lineage.

Th ese are the types of kindred by blood in general. They are to mheril if there is none entitled to inherit prescribed shares e~cept the husNnd and the wife, provided there are no agnate relatives. This is according 10 Ihe following evidences:

First: Allah, Exahed be He, says:

": .But kindl'ld !ry blood art nMRr to one another regaming Inheritanu ill the dru ordained by Allah."

(Qur'An: AI-AnBl: 75) This meanS that blood relatives are entitled to inherit each others a",ording t o the Judgment of Allah. Se,ond: The general implkation of the following Qur'anic verse:
-For me" is a shal'l of what the /HIre"ts and dose relatlve, leavt, arulfor WOmtn u a mart of what tJu pan"ts and dose relatillts letllIt, be itUttle or muth - ~n obligatory shal't.~

(Quran; An -Nisa': 7) The words 'men', 'women', and 'close relativd include one's kindred by blood. Thus, whoever claims Ihal the verse rders to a certain case should prove his claim. Third: The Prophet (PBUH) said:

"Tht maternalunde is the heir of him who has none."

(Rdated by Allmad, Abi! DlwM, Ibn Wjah, and At-Tirmidh! who d,med it bamn)' This had/Ill signifies that the maternal uncl~ becom.. it legal heir wh~n th~re is none entitled to it prescribed share or agnate relatives. As the maternal und~ is from one'skindred by blood, then the same rule can be applied to oth~r relatives fmm one'. bndred. These are SOIllt proofs supporting th~ vi~w that on~'s kindred by blood may in herit. This view is reported itlxm! some of the Prophets Companiollli

Clup'<r 22, Inhi"'n'" of Kind~ 'or Blood

including ' Umar Ibn ul-Khanlh and' A!1lbn Abillllib (may Allah be pleaSl:d with them). This opinion is adopted by the HanbaU and .l:lanaft scholars, and it is one ofthe two view. ad opted by the SMfi'! School in caSl: the affairs of the Public T...,asu ry are not settled or it i. not established as a unique institution. The scholars who view that the kind...,d by blood are to inherit diff.r regarding the way they reo:eive their sha.. of inheritance, and they have some views the commonest of which aTO the foU owing two: Fint view: They (kindred by blood) aTO entitled to inherit by considering everyone of them in the place of the one to whom be/she is related to the de.:eased, i.e, to be given such a perwn's s ha ... Thus, daughters' childTOn and the child...,n of the sons' daughters aTO to be tTOated like: their mothers. Likewise, the de.:eased's father's maternal half brothers and also paternal aunts aTO to be treated like: the father. Similarly, the maternal uncles, maternal aunt. and maternal grandfathers aTO to be tTOated like the deceased's mother. Moreover, brothers' daughters and th. daughters of the brothers' WflS are to be treated like: their fathers and so on. Second view: The kindred by blood are to inherit th .same as the agnate relatives do, i. e. the closer the relative is, the more he/she is entitled to inherit; and Allah knows best.

Endnotes
l1hoot non_inheriting grandfathm and grandmolhm .... prrviously mt"Ilbont<l in detail 2 AbODAwM (289'9) [312151.nd Ibn M1j.h (26J-1) 1312711: ... . 1.., Atl1rmidhl (21 08) 1~ 14211 and (2109) 1~1~22I.

CHAPTER

Inheritance of Divorced Women

W rHy, Allah, Ex.alt~d "" He. made Ih~ marriage cont ract. nuse for inheritan . All ah, Almighty and E~r- Maj~tic "" He, s.ys:
"/u,J far you i, half of what YO"T ...1_ lea .... if tlr~r Ira..., "" child. But if tlrq " avI a <Mid, for YOIl ;. On. fourtlr of what th,y "liVe, aftt:r any btqllt$t tluy {m .., hA wl m ad, or debt. And jor thom ( i.f!. tll, ....i_1 if ON' fourlh iflOll INW 11<) mild. Blit ifro"/IIIW 11 child, ,h... for fit,.... i. om riptJ! of ...n4l1 YO" leave, tifler ...., tv/fuw you
(Q u.'iln, An-NW': 12) In consi deration IQ this, the two. spousn inherit from each other as long as Ihe marri.ge co ntract has been valid unt ilth, death of lhe inheri ted spouse, " nle then: is eause that preve nU o ne of them from in heriting from Ih.
(_ y ".wl ~.uDrdn.c ...~

OIher. However, no inheritance ;5 to laM place in case of the irrevocable divorce. for Im rule of thumb staIn that ift ht rt i$ no ClIust, theR is no dTccl Howevt'r. Inert miShl bot SOITlt condition. in which divor.:c does not prtvtnt

'"

V INHERITANCE

the two spouses from inheriting one another. To illustrate, the two spouse:.

inherit from one another in cue of the revocable divorce. as long u the vrife ;s
still in the waiting period. Muslim scholars have singled out a s~cific section for "The Inheritance of DiVOrcM Woman~ Regarding this, divorced women a~ of th""e ~s:

First type: A revocably-divon:ed woman, no matter the divo= has occnT""d while the husband is in good health or not.
SK ond type: A woman irrevocably divorced while her husband is in

good health.
Third type: A woman irrevocably divorced while her husband is in his last illness.
Con~rning

the legal ruling of each of the above cases, the revocably

divorced woman i. unanimously agreed 10 be entitled 10 inherit once her

husband dies as long as she is still in her waiting period. This is because she is
still regarded as a wife and she is entitled 10 aU the rights a wife has. It is also unanimously ag=d by scholars that the irrevocably divorced woman, while her husband is in a good health or suffers from a curable disease (i.e. is not seriously in) and not being suspected to have disinherited his wife (ie. by divorcing her), is not entitled to inherit from her husband, for she is no longer related to him. Liuwise, the irrevocably divorced woman, whose husband is incurably ill and he is not suspected to have disinherited his wife (i. e. by divorcing her), is not entitled to inherit from him. In contrast to the previous case, the irrevocably divorced woman while her husband is in his last illness. is entitled to inherit from him during the waiting period and after it ends, provided that the husband is suspected to have intentionally disinh~rit~d her (by divorcing her) and that she has neither remarried nor apostatized after the divorce. This view is asserted by the inddent when Caliph Uthm.m (may Allah be pleased with him) judged that th e wife of'Abdur-Rahmln Ibn . Awf(may AUah be pleased with him), whom he irrevocably divorced in his last illness to disinherit her, had the right to inherit from him (i.e . . Abdur- Rahm~n Ihn . Awf).' This judgment, which is not restricted to the waiting period, was known among the Prophet's Companions and none disapproved of it, despite rule of the avoidance of disputes and sios. This is because such an illintentioned husband is treated according to hili bad intent (Le. his iotentional divorce of his wife in his last illness to disinherit her); and Allah knows best.

other by virtueof lhc marriage contract if either of them dies before the consummation 0( th e marriage Or mting in privacy du e to the generality of the ver5/::

Mo~er, the twospouses inherit from each

A,nd flJT YO" i. half uf ",hat yo"r wiv~. Icaw If Ihry havc no rhl/d. Blit if Ih~y Iulw a , hlld, fo,. YOII i. onr follrth "f what thry

1'4w, Ilftcr ""Y '-/lIr" Ih,y (may hllwJ m"dc " . thbt. AM /<If them (j.t. tht ,.,;-J.. "nc fourth ...~ (Q ur';l.n: An-Nid': 12)
Th is is because: the matrimonial relat ionship Is an inlimatt and noble On(

upon which great rulings and i nt(~1i art tlItai1~. 1'htrefort. Allah, Eulled be He, prescribed for both spouses some sh~ of th e eslale of one another
when the OIher di es. u All ah did for the relatives. This en.lures that both spouses should respe<:t and venerate onc another. Theseare the blessing and graclo w rulingsoflslam 10 whith we.upplkatt Allah 10 kp us mictly adhering and embracing il forever.

Endnotes

CHAPTER

Inheritance among People of Different Religions

By rdttring to difl"el'n'"lU in nligion, ~ mean that the inhmted person nnbn:s. migion difftorml from that mu.. heir. This topic indudes two '-'sur$:

Fint: Wben a Disbeliever Inherits from a Muslim and Vice Versa

Muslim Kholal'S have entertained four
thi5 iUllt:
djrre~nl

opinions with regard 10

First opinion: The m ajority of 5Chobrs state that a Muslim n~vcr inheril$ from a disbeliever nor does a disbeliever inherit from a Muslim. This

Is because the Prophet (PBUH) saY':

i\ Muslim cannot M the heiro! a dirbtlitwr. tlcr C a dubtliew. bt all rhe hti, of a Muslim: (Rtlated by AI Bukhlrl and Muslim)'

31'

Y INHERITANCE

Second opinion: The Muslim one never inh.,rits from the disbeliever and
vice versa, except through the waM" according to the hadith that ",ad.,

"A. Mad/m GannOI be tht heir ofa Christian except whrn ht (tht Christian pmfm) is hjj (tht MusUm~) slave or his slave-gir/."
(Related by Ad-D~uln!)

This hadirh signifies thal1he Musli m heir inherits from his Christian
manumitted slave and vice versa according to analogical deduction.

Tbird opinion: The disbeliever inherits from his Muslim ",[aiM if the former converts to Islam before the estate of the Muslim d~d is di,ided. This is according to the hadlrh: Itn estafe which WIU divided In the Pre- Isklmic Period of Ignorance (the /tihiIiyyah) may folu,w the division in force then, but ""y estate in Islamic limes must follow tht division laid down by Islam."'
The fl;ldir It signifies that a disbd iever is entitled to inh erit from a Muslim if the formeT converts to b lam kfol"<' the estak of the Muslim okceasro isdivided.

Fourth opinion: The Muslim inherits from the disbeliever and not vice versa due to the aQd1th,

"[slam increases and neer dtcreases.'"

This is becau.. when the Muslim inherits from the disbdiever that is considered an increa.o;e, and not via verSa. The hadilh signifies that Islam leads to incl"<'a.. not to d ecrea... The preponderate view - and Allah knows best - is the first one, (i.e. the Mwlim never inherits from the diskli~r and vice versa) due 10 it. sound and explicit proof unlike those of the other views, which are either weak or inexplicit proofs.

Second: Inheritance among Disbelievers

As far as inheritance is concern ed. disbeli evers are div id ed into two states: First stale: It is indisputable that disbelievers of the same I"<'ligion inherit from one another (e.g. a Jew from another Jew and a Christian from a Christian).

Chap,er 24; In"'; .. n .moo!,! Prop!c of Diffcnt R.ligioru

Second state: Scholars maintain three diffe",nt views concerning disbelievers of various religions k g. Jews, Christ ians, magi, Or pagans) whether they inherit from one another Or not in "'gard to determining whether disb<:lief involves one or several religions. Fint view: The Hanafi and ShaWl s<:hools maintain that disb<:lief involves one religion (Le. all disbelievers a", of the sam e state). This is also one ofthe opinions adopted in the Hanbali SchooL Moreover, this is the opinion of th e majority of scholars that disbelief, including all its creeds, is regarded as One religion. Thus, disbdievers inherit from On e another rq;ardleS$ of difference in religion. This i. because the l.gal texts with r.gard are general, so they a", not to be restricted unless by the Lawgiver. To illustrate, Allah, Exalted b<: He, says:
K A,nd thost who disbelieved art <llliu of Ollt allothtr..
H

'"

(Qur'An: AI-Anfal: 73) Second view: Disheliefcomprises three religions: judaism, Ch ristianity, and the other types OS one religion, as they have no Sacred Book. Thu., a Jew is not to inherit from a Christian and both of them a", not to inherit from a pagan, and so on , Third view: Disbelief comprises several c",ws; people of each are not to inherit from those of others. To illu,trate, the Prophet (PBUH) says:

People of two different religions CQnnot inherit from One anotht r."
(Related by Ahmad, Ab(l mw(\d, An -N.wl and Ibn MAjah)' According to the afor ementioned b.adith. the third view seems to be the preponderant one. That is, !",ople of different ",ligions, e.g. Muslims and disb<:lievers, t'" not to inh erit from one another due to the lack of mutual support among them, and also ber;ause the caust for inherit~ n,e in Ibis case contradicts the cause im!",ding inheritance. In otber words, dif~",nce in rdigion entaib conflict in all other matter~, and this leads to the disinhe ritance from One another. The ",hola" who view that disbc:lief involve~ one ",Iigio n con.ider that the diffe",nce oflocation (Le. living in two different states) is a disinheriting factor due to the lack of mutual support among them, which is app licable when there is difference in ",ligion. Thus, it s~ms more appropriate that !",ople of different rdigions, a Chr;.,tian and his Jewisb ",lative for example. cannot inherit from one another. However, disbelieven of the same ",ligion can inherit from one another; and Allah knows best.

V INHERITANCE

Endnoles

I AI Bukhiri (6764) [12I61 1. nd Mulim (4116) 16153).

2 Wald, The freed .la...' Iorolt)' by .irtu< of tmancip.tti<>n . J Ad-Diraqullll (4036) [4/41 j. "AM-Dl wi1d (2914) )3/222 ) .nd lbn M1j.h (2485) ]31221].
5 AI-Bayh"'ll (12153) [61338 ]. 6 Ab6 Dlwi1d (2911) ]31221 ]. lbn-Mlj.h (2731) [3n22] and At-Tirmidhl (l iB) [-tl4241 .

CHAPTER

Inheritance of the Murderer of the Inherited Person

c....sn o{inhrrilance ""'Y uist, ~t an (1IlillM hei r may not be given hill
There are many causes that ~nl one from receivi ng one's share of estate. One of thl$e caU$6 is the case of an heir who murdeR the her
inherited p"r'SOn. To
prescribed~.

mun.ale. the Prophet (PBUH) 51)'$:

"No (5hIlTe of the) ."hed/mICe (of the mul"lkred person) is 10 be givm to tht murdt~r.'
The Prophet (PBUH ) aoo "ra'

i4 murt/nu is 110/ to inherit Iln1thing (from the . nlruil<lna of the pmorr he kiIkd. This mainly aims al blocki ng means 1 committing what is prohibited, as 0 kw! for wnhh may drive an hei r 10 murder whom he may inherit. The wrllknown rule 511tes, ~oewT hasknl lo possess something befon' III due time wlll be punished by not having 11.-

V INHERITANCE

SdIobrs, un.mimously Iglft tltal tm, mur!krer of the inhentNl pn-son is tON disinherited. Yet, they maintain diffe~nlv~WI with ~d to the typeof murder that prevent.! one from inheritance. According to lm lm Ath-ShUi'i (may Allah have mercy on him) the murde~r ~r inherits anything. no matter wh at type of murder it is. That is due to the gene~litr ofthepilh ohhe Prophet (PBUH) in which he says.:

"A ,mmmer is no! 10 illhml lVlylhing (from rhl inhmllUlU of Iht:

i'"JOfI he Idllnl).'"
This signifies tluu the murdem- is not ent itled to inherit from his victim in order not to let killi ng N I mean . to hast en obtaining inheritance. Consequently, whoever ha.! I hand in th e killing iI to be disinherited, ne n If rightful. For exampl e, the one who uecutes th e qi~4.i (legal retribution) , th e IW'r$on who gives the judgment of killing such u the judge, the witne" in mu rder case, I re all to N disinhe rited. Thi. is applicable evC1l if the act of kiDing is unintentionally committed, such as the killing done by one who is aslttp, insane or a ch ild, Sm del, this nile is to be appliNI in case the killing mistakenly results from a ptrmiSiible act,such u the cue of a discipli ner or the phys ician who helps the IW'rson in treatment. Followers of th e Iochool of Im1m Ahmad view thlt unrightful killing is the only kind that diSinherits the killer. Unrightful killi ng is that which entail legal liabili ty, such as qil.!'! (lega1 rdribution), di)'llh (blood money), or eapiation, such as the premeditated mur!k r, quasi-premeditlted mu rder. and accidentll homic ide. Thili is al50lppl icable with regard 10 wh" resembles KCidtntal homicide, l uch as being the ClUK of killing, or the killing committed. by. child, an iMaIle or a slping pcr$On. In conlrut 10 this. if the type of ki lli ng does nO( entail qit<tL d i)'llh or e.rpiation. then it does no! cauS-t otle to be di5inherited. To illustrate. killing someone as in qil.!I or in self-d efense doc$ not ~nt.iI blocking one from inheritance. This i. llso to be applied In case the killer i. a jUlt IW'rlon whereas the murdered IW'cson is an o ppre" or of the killer and also in case the killing results from I IW'rmwibleact such IS disclpHni ng or curing. What is mtnt ioned above is also the view of Ihe HllIafl School whou followcrs coosiderbei ngacauscondlling cioesnlMcausconetoN disinherited, as in cases when one d igs I well or puts a stone tccidentally causing tM inherited IW'non to die. TIIi. is .1&0 applicable In CIs.t of accidental hnmid de or killing by I child or an Innne person.

Cru.pm 2~: lnhi .. ncc of the Muro.ret of ,he I"h.. j,.,j Person According to
th~ M~liki

&hoot a murderer has two states,

First case: When a murde...,r intmtionally kills th~ inh~rited person; in such a case, the murder~r is not to inherit either from Ihe eSlale of the murdere<! or th~ diyah (blood money). Second case: When one accid~ntaLly kills the inherited person, in such ~ case, on~ i. to inherit from the murdered person's estate, but not from his diyah. This is because, in such a case, the killer does not int~nd to kill th~ inherited person, yet it is obligatory upon him (th~ kill~r) to pay the diyah, so he cannot inhe rit something h~ is obliged to pay. On ...,viewing the aforesaid opinions. the preponderant one seems to be that the kind of killing that disinherits one is that which entails a legal liability, whil~ the accidental homicide does not disinherit one, as maintain~d by the lianball and the Hanafl: Schools. This is because in case murder entails a legal liability, Ih e killer is not excused and must bear the ...,sponsibility; thw, he is to be disinherited. However, in case killing does not entail a legal liability, the killer is excused and is not ...,sponsibl~ for it; thus. he is not 10 be disinherited. If we are to follow th~ opinion adopted by the followers of lmAm AshShMi"t, which stat.. that any type of murder prevents the h~ir (the killer in such cases) from inheritance, this will prev~nt ex~cuting the prescribed punishments.
h~drth

According to what is mentioned above, the generality of the Prophet's "No (shart of the) inheritance (of the murd=d person) is to begiwn to the murdner: is ...,strkted only to the case of killing unrightfully which does not entail a legal liability. Allah, Exalted be He, knows best.

Endnotes
1 AM-mwild (<1564) [~/91 and Ibn-Mijob. (2646) [31277]. 2 Ab\JDlwild (4564) [4/449 [. At-TIrmidhl (21 H) [412S[ and Ibn.Ml j. h (2M5) 13/277].

CHAPTER

Marriage
Marriage is a serious and crucial subjN:! that made faqihs (Muslim ju rists) dedicate great parts of their volumes to t ackle it, explaining its rulings as well u its purposes and virtues. This is becall5e marriage is ordained through the Qurln, th e Sunnah (Prophetic Tradition), and juristic consensus.

Allah, halted be He, says:

~... t"ell marry thou Ilwl p/eau you of [other} "" .. e ", two Or " thruorfour... (Qur'!n: An -Nid': 3)

In the Qu~n, Allah , Exalted be He, alro mentions the women one ;s prohibited to marry then s.ays'
"; . Aruf fu ..jul fa you 4re {Illl "thm] l>ey.>nd titat , [provided} III at you leek them {It! marriage} with [gijh from} ,.,UT f"OI=ty, desiring duutity, "", unlawful suual intercourst ... ~

(Qur'An: An-NisA': 24)

350

VI

MARRIAG E

More"",r, th~ Prophd (PBUH) exhorted people to marry and made marriage de:.irous and recommendable; He (PBUH) said:

"0 ytllmg people! Whoever among you has lhe ability 10 marry should marry, for il helps in Ioweringonesgau and guarding ond cJu,stity (j,(, it guards ond- private paris against immorality),."'
He (PBUH) also said:

"Murry women who are loving and very pmlific,for 1 shalll>e proud of the great numha of you (i. e, the Muslim nation) in comparison with (other) nations on the Day of Resurrection,"'
Among the glorious virtue:. of marriage are the following:
(0

Marriage involves keeping the existenre ofthe human mre, increasing the numh<:r afMuslims, causing annoyance 10 the dish<:lievers tbrough the procrealion of thos.. slriving in the CallS/: of Allah as well as those defending Hi, religian, Islam. Marriage leads to maintaining chaslily and keeping away from the unlawful """,al int.<caurs.. that ruins human communiti es. Marriage involves the w;ponsibililya{ men taward wamen that indudes sheltering tbc:m and providing far them, Allah, Exalled be He, .ays:
"Men IlT in duup af ... by {right of] w!utt {tp/a/ilia] Alllllt Ital given anI Over the (Jther and whtlt they s~"d {for (Qur'an: AnNid': 34) maintenance] from their ...etllth ...-

(0

(0

,,""'n

-(0

Marriage creates an almosphere of tranquility, mutu.al concord. sc:curity. and spiritual comfort belween bolh husband and wife, Allah, Exalted be Ht , says;
that HlcrMted for you from your.eivQ mata that you may find Ira"'luility ill thtm ...H (Qur'tn: Ar-Rlim: 21)
~Alld o/Hls signs /s

AUah also says:

Kit iJ He Wh" created y ou/rom one J(Ju/ /l.nd creatldfrom it itJ mtlte thtlt hI mighl d.....1I in JtrJIrity with her...(Qur'an:AI-A'rlf 189)
(0

Marriage is a meanS of keeping the human cammunit ies from indulged in immoralities that ruin mom ls and eliminate virtue.

~ing

Ch.ptor I: M.rri.g,

.:.

is a m~ans of pre"' rving progeny, keeping blood relations, .nd establishing honorabl~ familie. involving m~rcy, unity, and support in what is right. Marriage rai",. man above leadi ng animal life and enable, him to lead an honorable human life.

Marriag~

<-

Thero aro so many other virtues of lawful, honorable marriage which is based on Ihe instruclions of Ihe Noble Book of Allah, the Qur'~n, and Ihe Su~nah of His Prophet (PBUH). Marriage is a legal contract enabling each

spouse to have lawful enjoyment of the other. In support of Ihis view, the
Prophet {PBUH} said:

-Trrat women kindly, as they are (1iI(~) capl;""s in you , hous~s:'

In another narration of th", b.adfth:

-Intercourse with them (worn",) has been made lawful unto you by the Word of Allah (through legal marriage)"'
The marriage contract i, a covenant between the two spou",,". as Allah, Exalted be He, ,ays: ": .. and th/!)' ha"" taun from you " solemn c(IPenant. (Qur'an: An -Nisa: 21) Thus, it is a binding contract obligating each 'pou"" to observe the other"s rights dutifully; Allah, Exalted be He. 53YS'
~O you

who Iwve belU-.ed, fu/fill [all/ contracts ..

{Quia,,: AI-Maidah: I}

Polygamy
11 has been made lawful for the man to marry more than one, provided thal he is able to do so, and is certain he would not be unjust in dealing with them. Allah, Exalted be He. says' ". then marry tho,e that please you of [other} womm, two Or thru orfour. But if you fear that you Willllat IH just, thm [mllrry only/olle".H (Qur'An; AnNisa'; 3) The kind of justice required from the man is to treat his wives equally as much a, possible. putting them all on an equal footing regarding provision, dothing. housing. and even the number of nights spent with them .

VI

MARRIAGE

In addition, p<:rmissibility of polygamy is one of the virtues of this Shnrl'ah (Isl amic Law). It is applicable at all times and anywhere, as it involves great ~nefits for men, women, and society. In explaining more, it is known that the number of wOmen """,,.ds that of men due to the dangers men are more likely to face, such as wars and traveling. This results in less numbu of men compared to wOmen. Thus, if it is impermissible for a man to marry more than one woman, many women will remain unmarried. Moreover, it is known that women are afflicted with menses and confinement,.o if it is made prohibited for a man to marry more than One woman, there wiU be many times at which a man i. deprived of enjoym ent and procreation. Furthermore, it is known that enjoying one's wife fully and fruitfully begins to <kcline when she reaches menopause at the age of fifty, unlike man, who still has the ability as well as the desire for enjoyment and procreation until he reaches senility. Therefore, if marriage is restricted to one woman, man will then miss much good in addition to losing the benefits of having progeny and procreation. Since the num~r of women "", eeds that of men in most communitie., allowing man to marry only one woman will r esult in that many women will not find breadwinners to provide for them. Consequently, lacking breadwinners may lead wOmen to immorality and corruption, and their deprivation of the joy and adornment of life, Hence, there are sO many virtues resulting from th e perm issibility of polygamy, so may Allah curse whoever intends to view oth erwise and tries to invalidate such ~neficial, lawful malters.

Different Rulings on Marriage

According to the Shari'ah (Islamic Law), there are five rulings on marriage, obligatory, desirable. allowabl e. prohibited, and d.t t. ble. Marriage becomes obligatory for those who feu committing :in'! (adult~ry or fornication), as marriage is a means of chastity and avoidance of what is prohibited. In th is connection. Shaykhul-lsl;I,m Ibn Taymiyah (may Allah have mercy on him) said,

"If one IJ In need of marriage and he fears committing ~ .in Iry leaving i/, one may give priority /0 g<lting marriage 0""" performing obligatory Pilgrimage."'

Chapter 1: M..rriag.

Others view that marriage, for such a person, i. more p,..,ferable than supe,..,rogatory Pilgrimage, Fasting, or Prayer. They also maintain that in this case ont's financial state does not matter. Sheikh Ta'liyyud-Dln said:

"Acwrding I" Ihe ~ppurtnl view of Ahmad <15 well <15 Ihe majority of <ehokm, OM ' flhould not (amide, wealth before marriage, as Allah, Exalted be Ht, says, "..,if they Ih<Ju/d N poor, Allah will rorkh tlumfrom Hilbounl),...M{Qur'an: An-Nur: 32) Ewn the MtsStnge, of Ai/ah (PBUH) mmetime. had nolMng in hi.J house <15 well' . Ht (PBUIi) onu concluded marriage for a man who could not t ""n afford a ring of iron (as a dowr),).-'
Marriage becomes desirable when the,.., is a desire [or libido], but there i. no fear of committing unlawful sexual in terrourse, as marriage involves many benefit. for both men and women. Marriage becomes allowable when the,.., is no lust, but then': i. a desire for marriage i~lf, such as the case with the impotent and the old However, in such ca.es marriage might be detenable, as it deprive. the wife of the actual purpose of marriage, namely safeguarding her chastity, as a husband', impotency causes a wife gn':at hann. Marriage become. prohibited for a Muslim man who lives in a disbelieving country engaged in a war with Muslims. Marriage in this case may expose his family to danger and being captufI':d by the disbelievers. In addition, he will not fI seCUfl': for his wife living among t hem.
It i. an act of the Surmah (Prophetic Tradition) to marry a religious, chaste woman of a noble origin. Abfl Hurayrah (may Allah be pleased with him) narrated that the Prophn (PBUH) said:

iI. I\l()man is

mUrTi~d

for four (reasons): her wealth, her famil)'

'la/u5, her beauty, or her religiou$Iless. So, )'ou should marry the religi(Jus OMe or else )'Ou will be a lose~"'
(Rtlattd by Al_Bukhlrt and Muslim) Morrover, it is stattd that the Prophet (PBUH) forbade marrying a woman for the sake of something other than her religiousness. To illustrate, the Prophet (PBUH) said:

' You should nol marry women for the sau of their beauty, for it might lead them 10 ruin (through arrogance and concd t), nor should)'Ou marr), them for the sa ke of their wealth, for it might

VI

MARRIAGE

Ifad them to transgrrssion. R<lther, you should marry them for the sake of their IYligiouSM ts5:'
Prophet (PBUH) r~ commended that a man marry a virgin. H~ (PBUH) said to I~bir (may Allah bt plea..,d with him):
Th~

' Why haye you not married <l viWn so that you may play with her and she may play with you?" "
(Related by
Al-Bukh~ri

and Mu.slim)

This is btcause marrying a virgin involves absolute intima<;y and affection, as she has no ex-hu.sband to whom her hean might bt attached affe<:ting her drsire and affection for the presenr husband. MOrffiver, it is consid ered an ~ct of the 5unnah that one marries a fertile woman; one of those women known for their f~cundity. Anas (may Allah bt pleased with him) narrated that th e Prophet (PBUH) said:

"Marry women who are loYing and v'"'"y prolific,for I shall be proud of the great numberofyou (i.e. Muslim nation) in comparison with (other) narions on tile Day of Rtjurrection."
{Related by An Nasi'; and other compile,. of Hadith)JI There are also other badiths caHying the same meaning. The ruling pertaining to marriage differs according to the condition of the person, his physical and financial ability, as wel l as his preparedn~ss 10 shoulder its responsibility. The Prophet (PBUH) exhorts young people to get married early, as they lleed it more than othe,. do. He (PBUH) said:

"0 youngpeople! Whoeveramongyou has til e ability to mMryshould

marry,for it help. in lowering one!< gaze and guarding one!! chastity (i. r. il guards ones priYClte parIS against committingaduIUry), and wh""""r does nOI have the abilily 10 marry should fastJor fasling i, prourlion for him (a s il dimini<he< oni. urual de,i,..)."
(Related by AI BukhaM Muslim, and oth er compilers of Jjadlth)" , In explaining th e aforem~ntiOlled hadilh, some scholars view that "ability" refers 10 Ih~ abilily to copulal~, while oth~ rs bdi ev~ that "ability" h~r~ refers to th e financial abili ty to afford marriage. In addition. th e

phrase "JOT iI helps in lo .....ring Ollt' gUlt: meanslhat marriage helps the mar ried one to ku p away from gati ng at ojnabiyyahs". Mo~ver, the phnose lI l1d guardillg ane' chastity melns that m.rriage keep. one &WlIy from commin ing fornical ion. Then, the Prophet (PBUH) enjoined th at whae~tr daeJ n Of h<l~t t ht ability to m arry an d ca nnot afford it should fut, i.e. sho uld resort to perform ing vo lun" ry fut ing u ... sub.t itutivc re medy, IS fUli ng i. protection" aga inst committi ng unl awful sex ual int erco urse because it d i minish es one's snu pl des ire . Thi s is du e to the factl hat abstaining from food and watu les.em one'.lu. t. [n addilion to this, fasling invo lves a sp ecial feeling of piety and fear of Allah, Exa lted be Ht, Who '"YS:

"0 YO" who haW' lwliewJ, dtcrud IIplllI you I. fiJl/in6 tu It _s drd Ilpllll those before YO" tloat you m4y /I"",e r;61oft",...(Qurln: AI-Raqarah: 183) Allah, Euhed be He. also "'y"

.", Bur 10 fll$l if ~t for }'tlll, if you ollly knew.(Q ur'An: AI_Baqarah: 184) In brief, the Prophd (PBUH) comm anded resisting lu", and avoiding ils dangers by reso rt ing to two . ucces..s ivt matters. The fi rst one is to marry when there is the ab ili ty 10 do so and The second is 10 resort 10 vol untary fasting in case one cannot afford marriagc. Thi~ ind iutes that il is impermlnible for a ma n \0 let himse[fbe upoud to the dangers of ~ ns. Allah, Eultcd be He. says:

"nd ""'TT)' IlK unmllTried limon, YOlllllld 'he riglo'toulllmon, YO"' ",,,le ,u.WI1i "nd jnnalu/,,_ Ifther ,J,ould be poor, AIW ..ill tnrkh tl1tm /mm Hi$ bollnty. "Md AI/air" AlI-En"'m",,";ng "nd Knowi",. But let tloem ,.,110 fi"d "ot ,.hu"t"", frn-J ,., ..m..ge 111"'''/11 f.frnm ~ex ..,,' rel"li,,"~J until AII"h en,l,h the,.,fmm HI. bolln'y.. (Qur'A n: An -Nll.r: 32-33)

VI

MARRIAGE

Endnotes
t AI-Bukhl,1 (5066) [91141] . nd Muslim (331!4) 151175). 2 At.l-D'wtld (J227) [31373J ~"" AnN. si' (2050) [2/374].
3 Ibn M_jah (1851) [214{)11j and At TirmKlht (3096) [51273]. 4 Mwlim (2941) 1414(2). 5 Set tilt footnote in ArRaIo1/ M-Murt-f" (61228) 6 AIBill),1 (2566) [5/243 ) ond Mu,lim (7378) [9/308 ]. 7 AI-8ullir! (5087) [9/1641 and Musl im (4372) [5/2151 _ 8 AIBulliir! (5090) [91165]ond Mu,lim (3620) [Sn9l]. 9lbn.Mljah (18S9) [21415). 10 AIDukhl r! (5367) [9/635] &J\d MurJim (3627) [51297]. I I At.l-DaWlUl (3227) [J/J7JJ and An-Nodlt (2050) [21374]. 12 AIDuhl ,! (5066) (9/l41 ) &J\d Mudim (331!4) [5/175]. 13 Ajnabl))\1h i. tny woman "'her lhan 0 man', wife and hi. lcgally,unma"ioge. bt. kin

CHAPTER

Engagement
The Prophet (PBUH) said:

When ane o/you gets tngaged to <I woman. ifhe CllII /ook a/ what
will induct him to marry her, he mould do 50:' (Rdated by Jm~m Ahmad and Ab,; Dawild)
Ht (PBUH) also s.aid:

wok at her,for it is bett..,. that thtrt should M lo~ ""twun you:' The aforesaid b.adilhs indicat. the permissibility of looking at what
usually app" .... of th. body of one's fi.n~o!. furtivdy an d also Without .itting privately with hu.

Faqihs say:
"It is dumtd allowable for a man who intcnds to g<f engaged 10 <I woman and bdieves that she i'likely to "",utilI/a /ook 01 what usually apperlrS of htr body. without sitting priv<lIdy with her, provided that

he/eels secure agaimt temptation,

VI

MARRIAGE

/1bir (may Allah ~ pleased with him) narrated:

"llmd to look at he, (i.e. his fiancee) secretly, untill MW of k, what induced me to marry her.'"
This indicates that a man is not to sit privately with the woman he intends to marry, and that he can look at her stealthily. Yet, One is not allowed to look except at what is usually and conventionally 'pp,,..,nt of the body of the woman one intends to marry. This permission is ,..,strictrd to the p"rson who thinks that the woman is likely to ""'pond to his proposal of marriage. Otherwise, if it is not attainable ror the p"rson to have a look at the woman he intends to marry, he may send a trustworthy woman to sec her on his lxhalf, and then she may descri~ her 10 him. This is based. on the /ladrrh related by Im1m Ahmad slaling that the Prophet (PBUH) once sent Umm Sulaym in order to see and exam ine a woman '. Whoever is askrd about his opinion on somenne intended to be engaged should answer honestly, mentioning the bad qualities of the intended p"rson (if any) as well as any ,..,Ievant things, which is not considered backbiting in this C,st.
It is prohibited for a man to use di,..,ct declaration while proposing to a widow or a divorced wOman during her waiting period, such as saying to her, 1 would like to marry }'<lu." This is because, Allah, Exalted be He, says:
~Thn-e

is "., blame Upoll you for that to which you {llIdlrut/y]

(Qur'~n:

allude (onamillg a proposal ta women .. _n

Al-Baqarah: 235) Hence, Allah, Exalted Ix He, allow, indirect allusion while proposing to a widow or a divorced woman during her waiting period, such" saying to her, "I am interested in }'<lu; or suchlike indi,..,ct expressions. This indicates the prohibition of di,..,ct declaration of proposal to a widow or a divorced woman during her waiting period, such as saying, 1 would lik< to marry }'<lu." This is because such a di,..,,, prop<al to a widow or a divorcrd woman may urge her to lie about her waiting period out of her desire for marriage.
Imlm Ibnul-Qayyim said:

i\lIah prohibited direct proposal of marriage to a widow or a divorced "",man during her waiting period, though she i, not the one who decides tht end of her wailing period. Th;, is buall"" djr"t proprual may incite htr to /iasten 10 respond and lie about the passage of her waiting period: '

On the other hand, proposing to a widow or a divorc~d woman during her waiting period, wheth~r through allusion or di,..,ct proposal, is permissibl~ for him (i. ~. th e divorce) who hu divorced her irrevocably but less than Ihree limes, as he is allowed 10 remarry h~r during h ~r waiting period. In this ""spe<:l, Shaykhul- IsIAm Taq iyyud _Dln said, "Allusion as well as dirtct proposal i$ permissiblefor the one (i.e. divorct) wh" has the right to marry her during her waitingptriod."
It i. prohibited for a Muslim to propos~ to a woman who is al,..,ady engaged to anolher Muslim . Thus, wh""ver prop<lS<:s 10 a woman and his proposal is answered, it beeom.. prohibited for anyone ds~ to propose to her unlilthe first suitor giv.. him permission or when the proposal of the first is reject.:.d The Prophet (PBUH) said:

"None s/wuld ask for the hand of a WOman who is already engaged to his (Muslim) brother; but on e should wait and see if Ihe first suitor will marry or leave her."
(Rdat~d by AJ-BukMrl and An-Nastll'

lmam Muslim also related that the Prophet (PBUH) said:

"None should ask for th, hand of a woman who is already engaged to his (Muslim) brother until he (rhe first suitor) leaves her.'"
Mo~ver,

Ibn 'Urnar narrat~ d that the Prophet (PBUH) said,

"None should ask for th, hand ofa wOman who is already engaged to his (Muslim) brother."'

(Related by AI-BukUri and Muslim) AI_BukHri also rdate.! that Allah's Mesu:nger said:

'11. man should not ask for the hand of a woman who is alread), engaged to his (Muslim) brother unku the first suitor gi~.s her up or give< him permission (to propose to her).""
All of th~ afo,""menlionro b.ad/ths, as well as other ones having the same meaning, stress the prohibition of proposing to a woman who is already e[]gag~d 10 another Muslim. This is ~u.., such an act may spoil the engagement of the first suitor, spread hatred among people, and involve ~ncroachm~nl on others' rights. Hence, if the proposal of the first suitor is rejected, or he gives permission to anoth~r person to prof'OS<' to her. or h~ leaves her, it becomes permissible for the second suitor to propose to that woman, as the Prophet

VI

MARRIAGE

(PBUH)

stipulat~d:

... unltSj the first suitor gives her up or gives him ptrmission (to propose 10 her):
This is the duty of a Muslim towards the .audity and inviolability of his fellow Muslim who~ violation is prohibited.

Neverthele.s. some pwpk do not pay the lea.t anenlion to such matter. In other words. one may knowingly propose to a woman who is already engaged to another and gave her consent. By doing ~o, one is encroaching on allother's right and spoil. his proposal, which is by all means prohibited. In addition, the one who intentiona1ly does so deserves to be rejected and punished as well. Therefore, a Muslim should beware of such a matter and show respect toward the rights of other fellow Muslims. Every Muslim has inviolable rights that should be respected by otber Muslims; a Muslim should not propme 10 a wOman already engaged 10 his fellow Muslim; he should not try to caned the purchase of hi. fdlow Mu.lim trader to gain it for himself, nOr should he caus<: any kind of harm to hi. fellow Muslim.

Endnotes
1 AbO-DlWl1d (2082) [21390]. 2 At- Tinnidhl (1088) 131397]. An N.,i; (3235) (3/378] and lbn Mijah (1865) [2/4 18]. 1 Ahmad and Ab\i DAwlid 4 Allm. d. ~ S th. footnot. in A,Rawt/ A/M",bi " [6/239 1. 6 Stc IM footnot. in A,-RawJ A/-M",bj"" (61240]. 7 A/-8ukhtrl (5144) [9/294] .nd An Nod'! (3241) [l/382}.

8 Muslim (H49) [51J(l2] . 9 Muslim (3441) (5/201] ond AlBulli1r1 (2140) (41446).
10 AI Bukhlrl (5142 ) ]91249].

CHAPTER

Marriage Contract: Integrals and Conditions

It is dnirabk: 10 delive r I sermon befo~ concluding the manias<' contract.

Th is sermon is ca ll ed "the ~rmon ol l bn Mu 'jlG. [t may ~ delivered by th e onc who concl ... dcs the cont ract or by anyone else of the attendant. It.

wording is as follows:
' Vtril,l\ /lU prllise ~ ID AIIIlIt;
lit!!,

Wf plliK

Him, ask His help /lM~'

ami lu,"

/0

llim in Ttf'tn/Illt(t. We Ik

rrfup with Him fro m

the mU of oundva. IIndfrom Iht tvlls of 011' dud!.. W/oomeW'r Au..h guidn. for him tlu~ is no miskouftr. IInd """"""'" Ht /ttJds aura)'. far him 11n~ is 1I<l guide. Iltslify Ihlll /lnrr is no deity but Allah, and 1 twify that Muhammad is HisXtwtf/ IUId M=~gn:' (Related by the Five
Compl~n

of ltJuIlrh. and dttmed a /lasan

(pxll 1Iad11 by At-llnnidhlj' 1t

'"

VI
Aft~r

MARRIAGE

delivering the sermon, the following lh~e verse of Allah's Book, the

Qur';\n, arc 10 \>(, ,..,cited. The first verse is:

"0 you who hill'/! beUewd,fear Allah as HI! mmlld EH: ftand aM do not d~ ""'tl!pt a. Mu.Um. [in ."bmissioll to HimJ.~ (Qurln: Alu . Imnin: 102) The second one iso
"0 mankind, ftll' your Lord, Who r:rrnttd you from onl! wul fmd cmlttdfrom it it. matt/md di.~r"d from both altMm mall}' mm and wom ..... And fear 14.11..10. through Whom,,,.,.. <Ilk <me a..<Jther, and the ...",,.In. lndud M/all is lwr, over ,Y(lU, /1/1 Obm'wr,"
(Qur!n: AnNis;l.': 1)
The th ird is:

"0 you who have In,jieved, f ell. AI/llh and .peak word. oJ Ilppropriatt judice.. H e will ( the,,/ amend for you your du d.

and forgi"" you y<)ur .im. And whoever obe)" AI/lilt .md
Hi. Messenger has ,,,rtainEr attained a great attainmtnt.~
(Qur1n: Al-Abzab: 70-71)

The Three Integral Parts of Marriage

First: Spouses must b<: free from any barriers that may deter the validity of their marriage. For example, the woman mwt not b<: one of tbose whom the prospective groom is prohibited to marry, such as b<:ing a do~ blood relative (marrying wbom is incest), being a sister tbrough having b<:en brust-fed by th e sa me woman, or being a widow or a divorced wOman in her waiting pe ri od, and tbe like. Another example is that tbe man must not be a disb<:liever while the woman is a b<:Jiever. There are some oth .. legal barriers that we will sbed light on, if Allab wins. Se<:ond: The bride's consent must be ""rifled. It i!; expressed through the spoken form uttered by tbe legal guardian of the bride or anyone in bi!; place; he says to the groom, "I marry you so-andso." Third, The groom. acceptance must be verified. It is expressed tbrough the spoken form uttem! by the groom in r"ply to the guardian, namely, "I marry her," or "I accept her marriage."

Chap'or 3: Mmi.g< Controct: In'q;"l, .nd Condition,

Shaykhul-bllm Tbn Taymiyah ~nd hi, discipl~ Ibnul-Qayyim mainlained Ihat marriage can beconduded by any wording Ihal indicales the same meaning of the aforementioned spoken form." and thal il is nol reslricted 10 them. However, Ihos.. schola rs who made the spoken forms of marriage restricted to Ihe aforemenlioned ones argue Ihal "marriage" is o:plicitly referred 10 in Ihe Qur'an, wilhoUI implicalion; Allah, Exa lled be He, sa)"" ". So whtn Z<lyd had her to you ...N Allah also says: "And do not .....rry tlwst {women/ whom,.,..,. fotlurs mani.m...~
(Qur'an: AnNis;1.': 22)
nO

longtr any need for her, W. married (Qur'an: Al-Ahtib: 37)

In fact. this dots not mean that marriage i. not 10 be consummated except through these spoken forms; and Allah knows bes!. A marriage contracI is de.:med valid for a mule when Ih. legal form of consenl or acceptance is expressed through writing or understood gesture. When mulual consent and acceplance are reached, marriage is to b. deemed valid even if the one uttering the legal spoken form of marriage is jesting and dots not mean Ihe actual marriage. Thi. is due to the i1~dith in which the Prophet said; "There are three thi"gs which, whether undertaken seriously or in jest, are treated as serious: divorce, marri~ge, and taking back a wife (ufter Tevocublt divorce)." (Related by At -Tirm idhi) '

The Four Conditions for the Validity of Marriage

1- A(:(:urate Spe<:ifil.:ation of the Two Spouses Each of the lwo 'pouses must be accurately sp"cifkd while referring to th em. For example. it i. insufficient for ~ bride', fath" r to .ay to the groom as a legal spoken form, " [ marry you my daughter." whil e he has many daughters . Similarly, he can nol say to the groom's father, "I marry my daughter to your . on; while the latter has many sons. Accordingly, the .pous.. ...,ferred to musl be accurately 'pified eilher by pointing at him/her, referring to him/h er by menlioning his/her name, or mentioning ~ ' ertain quality that distinguiffie~ himlhn .

VI

MAIUUAGE

2- Mutual Causent
Th~r~ must ~ mutual consent ~tween the two spouses, marriag~ i. not d,mro valid jf any of th e two is forad to ac<~pt i1. To illustrate, AM HUnlyrah (may Allah be pl~ased with him) narrated that the Prophet (PBUH) said:

"A. previousiy married woman should not be gi""n in marriage excep' in marriage afttr consulling htr, and a virgin slwuld nOI be t"u pl afttr her permission,"

gi"""

(Rolated by AI_BukhAr1 and Muslim)' This is applied except for the minor who has not reach ed maturity Or the insane, as the legal guardian can marry any of them without thei r permission.

3- The Bride', Guardian's Permiss.iou

A WOman is to be given in marriage by the permission of h er legal guardian. This is due to the badltlt of th e Prophet (PBUH) in which he says:

"No marriag.! (is valid) wilhoul (Ihe permission of) aguardinn ....
(Rolated by the Fiw Compliers of I:iadtth except An Nasi1)' Consequent ly, if a woman gives herself in marriage without a legal guardian, her marriage is regarded as invalid, as such an act is a means leading to unlawful .exual intercourse. This is becau.e a woman is considered partially unabl e to ch oose her ~st-su ited husband. In this resped, Allah, Exalted ~ He, addresses legal guardians of women saying:
~And

marry Iht unmarried am ong you, (Qur'1n: An-Nur: 32)

Allah also .ays:

"... D<! not pn-venl themfrom remorrying...

(Qur'an: Al -Baqarah: 232) There are some other verseli in the same regard.

Th~

kp.I guardian of a womlJl is assigned according to thisor<kr:

H~r father

~ one authoriud by Ih., hothc:r to bI' hfr guard ian

Hfr paternal grandfath~r or Onf of his paternal mille ascrndants Her son or o,,~ of his paternal male deKendallts Her full brother Her paternal brother
A son of her full or paternal brothen

Her faIMr'. full brocher Hn fatMr. paternal brotMr

A son ofM' f:llh.,,-'s full or ""t<'mal brotMr

~ do~

agnale matlve

Heremancipator The ruler

4- Th~ Presence of Two Wiln~s5H

The marriage conlract mu~t be witnessed due 10 the aadlth narrated by Jlbi r which states that the Prophet (PBU H) said:
"No m4lTiag<! (iJ WJlid) withollt (tht ~""wi(m of) a guardian and

(in p~n of) t""'ll just "';lnrun."

Hence, maniage is not just witnew:s. At -TInnldhl &aid:
"Till, condirio" MS butt foJlo~ by rht '''t'' of migious knowfNI~ amo"g rhe Ccmpa,,;oIU of rht Prophet (PBUH), rheir followtN who came ~fter Ihtm. "!Md others. They mai"la/ned thus. 'No marriogc is ""lid withoul Ihe p ....eMCt of wilnessn: No OM ..,mong Ih ..m dis~grttd i" Ihis "'K"rd uupl wm . of Iht lalt me" of kltowled~'-'
d~rncd

valid upt wi1h the prt$Wce oClwo

VI MARRIAGE

Endnotes
1 AM Diwi\d (21 18J (21408). AtTIrmidhl (1106) [3H13). AnNw.; (3277) [31391[. Ibn M~j .h (1892) ]2/4:14] and Mu. lim (2005) ]31395J. 2 Abii Dl-wild (2194) ]21.47], At Tirrnidhi (1186) ]l/4901 .nd lbn Mijob (2039) ]2/5 10). 3 Al Bukhtr1 (5136) [9IHD] .nd Musl im (3453) [5/206]. 4 AbiiDtwlid (2OB5) ]2/392 ]. Al-lirrnidhi (1102) [3/407 ] .nd Ibn MI-j01 (1881) [2/428] _ 5 Sft Ih~ footnol< in ArRowd MMurbi "[6/276217 [.

CHAPTER

Equivalence in Marriage

The two spouses must be equivalent in four things:

1 Religiou.sness
A defiantly disobedient Or a corrupt person is nol a suitable match for a , haste. virtuous woman. This is becau~ the testimony or report of such a pUIOl'l is ~jected, which il coru.i<k.-N align ofinferiority.

F~edom

A slave (or a slave who i. partially free due to his agreement with his master 10 be fully free after the paym ent of I certain amount of money or after his mastrr's dUlh) is no;>! a suilabk match (w a free woman. IlS the for~r is

inferior due 10 ~lavt'ry.

'"
3- Profession

VI

MARRIAGE

One of a lowly profession, sllch as a cupper or a weaver, is not a suitable match for a daughter of one in a high profession, such as a merchant or a businessman.
4- Solvency
The groom should be &<lIven! enough 10 afford the dowry and marriage expenses. That is, an insolvent man is not a ,uitabl!. match for a prosperous

woman, as lhi5 causes h~r hann owing to his inability to mett her due expenses.
Accordingly. if the condition of any of the two spouses is diff"unt from that of the Olher with "'gard to any of the above-mentioned four Jrultters, equivalence is violated. However, this does not aff",! the validity of marriage, as equivalence is not a condition for its validity. To illustrate, the Prophet (PBUH) instructed Htimah Bin! Qays to marry Ul<\mah Ihn Zayd, L so their marriage was consummated due to the Prophet\; command regardless oftheir inequality', Yet, equivalence is still regarded as a condition required for a spouse's commitment to the marriage agreement. For example, if a woman was given in marriage to wmeone who is not it ~uitabk match for her. she or any of her legal guardians who do not consent to such an inequality may cancd the muriage contract. At the lifetime of the Prophet ( PBUH), it happened that a man married hi' daughter to his nephew in order to raise the latter's meanness and low status, SO the Prophet (PBUH) gave her the right of option whether to stay with him or to be separated'. Still, wme scholan maintain that equivalence is a condition for the validity of marriage, such as lm~m Ahmad according to one of the opinions attributed to him.
Sheikh Ta<Jiyyud-Din said:

According 10 Ihe opinion of Imdm Allmad, if the husbQnd turns out 10 be unequal to the wifr. they Qre 10 be separated. Momw~r, the guardian d""" not have the right to marry the woman who i. under his guardianship (daught~r, ,ister, de.) to Q man thm is not a suitable mmchfor her, Similarly, il i. impermissible fo r a man or 11 woman to marry an uflS",UabJe m~lch. Alsc. according to Allmad, e'luival. nu is not just lih marital financial matt.".. .uch ~s the dowry that rhe bride or any ofher legal gUQrdja~$ mQy demand or disregard. Rarher, it is a mattu tr.at has to be well considered."'

Endnotes
Hp,,'" 8im Qoro wu a fTet _ whiIo Uslrnlh Ibn Za)d WU a 1 M.aiim (3631) !SJl34]. 3 An-Nul1 (l269) [31395]. 4 5 !t.. '-noI' in "Ar-R.>WJI' AIMu." '. 1612821.

-r black frNd ~

CHAPTER

Unmarriageable Women

Unmarriageable Women Are of Two Klnds:

Finl: WOl:l'len Eternally Prohibited for One to Marry
~artfourlttnkind$ofthem;~Il 'rc prohibited due toblood I'dalions

0 and _ n Ut prohibited d .... 1 other spial rtaSOnJ. Thty an: pointed 01,11 in thf vmtS n l,l!Ilber 21 and 23 of the SuJ"ll of A,,-Nisd' ( Wp..un) '.

A- Women Eternally Prohibited for One to Marry Due 10 Blood Rdatlons I) The mother, gnondmothcl'3, .nd on up: Allah, Exalted be He, says: -ProhJIri,I to YflIl {for tn4l7'/iJgeJ IIN YOllr ... ot~ .. ~ (Cur'ln: AnNiU': 23)

on
down: Allah, Exalted be He, says:

VI

MARRIAGE

2) Daughters. granddaughters, daughters of granddaughters, and On

"Prohibited to you {far marriage/ ar2 .. your daughterl ~

(Qur'an: An-N isK: 23)

3) Sisters.: One i5 prohibited to marry one's sist~r, whether she is a full,

paternal, Or maternal sister. This is bau~. Allah. Exalted be He, reveals:

"Prohibited ta you IJllr m arrillgt] /U't )'Our fil IUS . ,

(Qur'1n: An-Nid': 23)

4) Sistn's da ughters. their sons' or daughters' daughters, and on down; Allah. Exalted be He, says:
"Prohibited to you (for marriage} a u ... [.."d1 your sister:' daugltten . ." (Q ur';1n: An- N isi': 23)
5) Brother's daughters, their sons' or daughters' d aughters, and on down; Allah, Exalted be He, says:

"Prohibited to you {for marriage] " .... .. . {Imd] yours;"t.,.,.:' a/Jught...... .." (Qur'ln: An-Nid.': 23)

6) Patern al aunts and (7) maternal aunu; Allah , Exalted be He, says;
"Prohibit.,n to you [for tJUlrr/age/ an . {lInd} )'<JUT foth tr'. mkrs, )'<lil t motht t" slstn5 ...~ (Qur'an: An -NisA': 23)

B- Women Eternally Prohibited for Ont

to Marry Out to Special Reasons
I) It is eternally prohibited fora man to remarry his ex-wife againstwhom he has SWOrn allegation of adultery and divorced by public impm:alion. [n Ihis respect, Al- raWUlj~t rq>arted that Sahl lbn Sa' d said,

"According to the SunJ1ah (Prophetic Tnuliri(}n), Ihe hwband IInd wif e who swe~r allegation ag~il'l5t each oth" (i.. allegation of adulttry' sworn by the husband ~nd aJJegation sworn by the wife in defense of hrr honor) ~re 10 b. sep~rattd and ntvu be reunited."'
A1-Muwaffaq commented, ' We know none who has ~ different view'"
2) The same categories of ,latives who are prohibited for on. lOmarry because of one's blood relationi to Ihem are also proh ibited 10 one by foster suck.ling ,latiom. Thui-, women that are prohibited for marriage

due to suckling Ire the S<l1Ue as those prohibited fOI marriage due to blood relation!, tuch ":
(.) Women by whom one is
(b) Sisters through suckling
b~ea.tfed

Allah, Exalted \Ho He, say"

~Prohibikd

/0 yo.. (fo, tnIIrrWgd fm... your

wftCI ,,>UXd YO", yo .. , Ii.,en "'...IIp

""I'$i",,..~

(mJlk/ mother.

(Qulan: An Nis.l': 23)

In this regard, the Prophet (PSUH) said:

..... 11 things which become .. " k>wful b~ust of blood I?I~rions al? unltJwful bausc of III ~ rorrnpol1dingfosltr Ju(/ding rtlatio",.~
(ReLated by AI SukMrl and MUI.lim)

3) ~ wiva of ont', falher, the WiV5 of onc's grandfathers. and on up, are prohib ited for I)I1C tQ many a". 500D as thc marriJgc contl"llCl of tht f~ther (<;If grandfather, d c.) iI conduded. Al lah, Exalted be He, SiI)'5:
"Artd do not mtJIT)'lhOH (womm ] ..hum 'your forhtl"l mtJnltd...~

(Qur'dn: An Nis!': 22)

4) TM wives of one'l lOns, the wives of one's grandSON, and on down, arc: prohibited for one 10 marry. Allah, Exalted \Ho He. says:
,.,... {-.oJ willS.

... ,A"d IeIH pto",blled III'r/ .ht wiO'ft offO'" _ who a~from (Quran: An NisA'; 23)

$) The wife" mother, her grandmO(her, and on up, arc: proh ibit ed for one to marry a.! soon:u Ihe marriagecontl"llCt (betwun one and o",,'s

wife) i! concluded . Allah, Exa lted be He, says:

Prohiblttd to yow [for marriage} "re... ),011' ..1Yl!" malMI"I ... '"

(Qurln: An Nis!', 23 )

6) Daughter and granddaughters of ones wi fe. and On down, a.... prohibited for one IQ marry OMt 0 "", coD5Ummates the marriage with one's wife. Allah, Enlttd be He, 51J"1'
Prohil1ikd 10 YOII (for ".tJ~pJ A"~ ... 'yo1I. IUpda"Pte... .."drr you. p"rd/"",/olp lbam) of'fOllr .. j _ .. Mto ..horn you

.174

VI

MARRIAGE

haw KO'" i... Butifyou haw ..at go ..e i" unto them, then is ..0 si .. upo .. you ... ~ (Q ur'.iJl: An-Ni$;1': 23)
After mentioning the women prohibited for one to marry, it will be more convenient to stale Ihe verse containing thm as a whole once again: Allah, Exalted be He, says:

K Prohibited to you !for marriageJ are y" ..r mlltheT$, your daughters, you, si.teN, you, father" sisters, you, rnllther's sister', you, brotlu1r', dDughters, your .ister~ dDughters, your [milk} motheN ...hll .. ursed Y"U, your sisters thro ..gh .... rsi ..g, your ...I~el molh""" and your .Iepdaughters .... der y"ur guardla .. shlp [OO"'J ofyour ...ives ....tll whom you IU1vt go .. , in. But ifyou haw "lit golle i .. u..to them, there is no sill Upll" you. A ..d I also prohi"ited areJ the wives IIfyour sons who are from your III ..... J lo;ns, and that you take {i .. marriageJ lwo oist. .. simultaneously, txuptfllr ...hat h,u already occurred. l,wud, Allah;o Ew,...Forglvlngll ..d Merciful.~ (Qur'An: An Nisi': 23)
Second: Women Temporarily Prohibited for One 10 Marry

They are of two kinds:

A- Women Prohibited for One to Marry Due to Simullaneow Marriage It is prohibited for one 10 marry two sisters and have them as wives at the same time. Allah, Exalted be He, "')":

K Prohiltittd III you .. Ihat you ttUcl (I .. marriageJ lwo ,isl.,.. olm ulkmeously... (Qur'an: An-NisA': 23)
H

I1 is also prohibited to take in marriage a wornat) and her patern,1! or maternal aunt.t the same time. This is because the Prophet (PBUH) said:
"A man is prohi"ited to many both a woman and her palernal aunt ora ...Oman and her maternal aum (at the same time)."'

(Related by AI-Bukhari and Muslim) The Prophet (PBUH)

~howed

the idea ~hind such prohibition, as he said:

"If you did so, then you would sewr your tits of ki ..ship."
This is be.:ause fellow wives usuaHy fed jealous toward each other, SO if they were rdatives. such a marriage would C1IUSe severing the ties of their kinship.

However, if a woman is divorcro and her prescribed waiting period is over, her sister and her paternal or maternal aunt become lawful for her exhusband to marry, as the reason for prohibition is not there anymore. One is also prohibited to have more than four women as wives at the same time. Thi. is because Allah, baited be He, says:
". .. the" marry thost that pleau you I)f {otherJ "",me", two I)r thruor four..~ (Quc';).n: An -Nisa': 3)

The Prophet (PBUH) ordered those new converts 10 Islam who had more than four wives under th. ir authority to choose just fou r of them '.

B- Women Prohibited for One 10 Marry Due to Contingent Malters

It i. prohibited to marry a widow or a divorced woman in her legal waiting

period. for Allah, Exalted be He, says:

". Alld do "ot delenni", to u"dertake a marriage Cl)lItr..ct u"til the decrud ~rjod rt:achu it. ""d ...
H

(Qur'an: AI-Baqarah: 235) The idea behind such prohibition is that the widow CIf the divorced woman might be pregnant, which might lead to lineal confusion and intenningling. It is also prohibitro for one to marry a woman who has comm itted zi"J (adultery or fornication) if one knows about it until she repents and her waiting p"riod is over. Allah, Exalted be He, ,ays:
M nd no"e maP"Tlu her except a fornic ..tl)' or a polytheist, ..... and that {I.e. marT/age to such p ersons} ha. bu" u"lawful to the belit1lers.(Qur'an: An -Nilr: 3)

On e is prohibited to remarry the woman whom he has divorcc:d by thr.., pronouncements of divorce until she validly gets married to another husband. Allah, Exalted be He, says,
"Di1'Orr:e i. twice"

(Qur'an: AI-Baqarah: 229)

Then Allah says:

"And if he ha. divorced her [JOT the third time}, thm she I. lIot lawful to him afterward UlltiI (after) me marrltl a h"s/mru1 I)ther than hlm ... (Qurln: AI-Baqarah: 230)
N

It is prohibited for one to marry a mulirim' woman until she gets out of her state of iardm. Similarly, it is prohibited for a mubrim man to conclude

,n;
I

marriage contract during the itate of il:trdm (a state of ritual consecration during liajj or 'Umlllh). The Prophrt (PBUH) h id:

"A mullrim must ntithtr marry himst/f. nor Qrrlmge the rIt(1.rriage of anothu o"e, 110r should he make the proposal of 1!1llrriagt."
(Related by IM Group ofCornpl.. rs tlcept AJ. Bukhlrl) '
A Muslim woman is prohibited 10 get married to I disbelieving or

polytheistic man, for Allah, EJ:alced be He. add.uses Muslim women saying:

...AII4 do 1101 _ "1 ""',fMWU:

lluy bditw ...

m~ ( 1(1 ,our 1+'OfftDI} urrii1

(Qur1n: Al -Baqarah: 221)

Likewis.e, a Muslim man is prohibited to marry a disbelieving or polythei stic woman . Allah, Exalted be He. h}":
-Alld da "ot marry poIy/ht/sl k WOI'MII ...,/i' they bdl_ .

(Qur'ln: AI-Baqarah: 221)

Allah. Exalted be He. also sa)'$'

. And /uHd nOf 10 _rrilJp

/.,,,.d. willl dlJbd.....,,' _

_ n.

(Qur'ln; Al -Mumtahinah: 10)

However. the aforementioned VCl'lie doeli not apply to Jewish or Christian flU women , as il is ptrmis.sible for a Mu~lim man to marry any of them, for
Allah, baited be He, addrt"" MuMim!mn laying:
... A lld {'aw/od /11 <In/.. t'"lIre _ " fr- amOllg ,hose ..no _ giWlf rite Scrip'"l'f' kftnY fOIl

""'"'av

(Qur'in: AIMI'idah: S) Scholars unanimowly agree that this verse il ~rdcd as an exception of the genel1l1 rul e "ated in th e aforementioned fW() verses, (2: 221) and (60: 10), which prohibit the marriage bdwe<:n di sbelieving or polytheistic women and Muslim men.

MmJim man i$ prohibited to marry a slave Muslim woman, al such a marriage causes his ch ildren 10 be slaves ofhis wifes masler. lt is permissible to marry. slave Mudim woman only when one re.rswmmitting fornication and one cannot afford marrying a free Muslim woman or afford the price or . slove woman to em.neipalt and marry her. Allah , Eulted be He. sap:
-And while",' .....0111,..,.. UUlnol {jirul/ I" e ... t "III ID marryfm, NJitnllg "",... ell, Ih," {~"'''Y marry} fro m thOle whom ,..,ur

A ~

m
right hallds PO""" oJbtlitvillgslavtgirls. This [allow..nuJ i..s for him amo"g)"," wlw fean afflictioll {i.t .inl ...~ (Qur'an: AnNis;!', 25)

A slave is prohibited to marry his mistr<:lS according to the consensus of

Muslim s<:bolars. This is b~ause being a mist'"'" of a slave contradicts being his wife, as the rights, duties, and rulings are diff.,..,n! in each case. Similarly. a masu'r is prohibited to marry his slave girl. This is because the contract of po=..ing a woman is stronger than that of marrying her, and a strong rontract cannot ~ combined with a wraker one.

Having ",:mal intm;ourse with one's slave girl has the same ruling as having
sexual inten:ourse through a marriage contract. provided the aforementioned

conditions .. rrconsider<:d. In other words. those who are temporarily prohibited

for one to marry - such as a widow or a divorced woman in ber waiting period, a mullrim woman, a female fornicator, Qr a woman wbom one bas divorced tbrice - are probibited for one to have sexual intuoourse with as one', slave women. This is because if a marriage contract i, prohibMd as a me anS of lawful sexual intercourse in such cases, then baving sexual intercourse with One! slave woman, witb greater reason, is prohibited in these cases as well

Endnotes
1 Ch.pt., No. ~ of the Qur'ln. 2 AbitDiwitd (22~) (21474 ] and AI- Bukhirl (7304) 113/339]. 3 See the footnote in A,..Ro""'ll AIMurbi " 1 61286 ]. 4 AIBukhlri (26014) 1 51312 ] and Muslim (J>64) [SIJ64 ]. S AiBukhlri (51()\1) Imoo] and Muslim (3.(22) [51! 93 ]. 6 Abit-DiW1ld (2241) 12I4M] and lbn Ml j.h (1952) [2/464]_ 7MuiIrl"" Th. on. in I 11.11t /If mOO eomemtion for Hajj (Pilgrimage) or 'U".rah (Laser Pilgrimage). S MoaIim (}<I32) [51196), AM- Dlwtld (lM1) [21.89J, At.'fj rmidhl (MO) 131199J, An Nut1 (21l42) (3/21 I1 ond Ibn Mtjah (1966) [214721.

CHAPTER

Conditions Made Before Marriage

Th~y are conditions set in the marriage contract by onc of the two spouses to he fulfilled by the othe r in the hest interest of the former. They are st ipulated

whether through the marriage contract or any previous agreement. Such

conditions are of two kinds:

First: Valid Conditions

Accordi ng 10 the majority of f<Ujihs, it is a valid condition when a wOman stipulat"" that her .uitor mu.t d ivorce hi s first wife, a. such a divorce i s in her inte,..,sl. Other scholars view that such a condition is invalid . as the Prophet (PBUH) forbade a woman to ask for th e divorce of another woman so as 10 take her pJace as a wi~' , Thi. Prophetic forbiddance indicates the invalid ity of such a condition.
Among the valid cond itions made by a woma n before marriage is when

she

~tjpulates

that her suitor must not (&exuallyl enjoy a slave girl or marry

'"

VI

MARRIACE

IUKlther woman after tMir marriage.. 1'hi5 iI _ valid wndilioo that has 10 be

fulfilled by tbe h\.lsMnd; otherwise, she has the right to invalidate the marriage. In this regard. the Prophet (PBUH) said:

"The worthiest condillom 10 bt Julfrlkd are rhO$t that make it Itgalfur you to hallf' uxual rdatiom (i.t, the condiliollJ ut in the

marrillgt contr(l(t):'
Among such valid cond itions is when the bride stipulates Ihat her suitor muM nOl: taU her out oflle! house or homeland. Thus, Ihe man mU51 nol lake her out eKept by her permission in accordance with ber oondition. Li~wise, it is. valid condition if the briG. stipulates thll her future hU5band must nOI sq._ratt between her and her children or parents. This condition must be fulfilled by tht husband; otherwiu, she has the right 10 rescind tht marriage contract. is .lso valid condition if Iht bride stipulates. larger amount of dowry or ,"", the dowry mll$l be paid in a certain currency. This is a valid and bindi ng condition tMllhe groom must fulflll;OI herwiK, ~ has the right to invalidate the marria~ contra<:t. ThU$, she has the option IQ invalidate it.t .nytime she likes, unless th~ ;5 a sign of her coolltnt although bdng aware of his violation of her condition. In such a ca$C', her right of choice is to be disregarded. In th it regard, . Umu [bnul-KhatlAb {may Allah be pleased with him) obliged a man 10 fulfi ll whal hi. wife made as a condition befQn: thei r marriage. The man 5&ld:
[t

"They (womell) may divorce u. IhnI!" 'Umar amwnm. "Tht judgmtlllOIl righls is baRd "/'011 ,Iu .taltd umdihom.O>
This view is also $IIpponed by

tne bOOf/h of tht Prophet (PBUH) in which

hcp.ys:
"Muslims musl kup 10 rht uJlldirion, Iher ha~t madt."
Th e great scholar Ibnul . Qayylm said:

"Such condjljom m...,/ be bpt, <l.llhq<lrr Ihe worlhiu t to ""fulfil/td ACcordillg 10 th~ prlnclplu f1j Sharl"ah (Is/amic ..:Iw), rrauJning, and SlJund aTHllogiC<ll dtductifnt. Hmct, if tht WOmaJI dCH'J IKII COII5mI 10 giw heM! to SlJmrotft ucqH on 11 _lain condition, such 11 condition must b fulfrl ltd; othtrWi~, jht marri~ contmct will not /le u/4hUsIttd on her co ...... nl, alld il ..,ia mllkt /ur U<lhlt for uncal/td-for dutiu that are 110/ mjoillt d on her by Allah alld Hit Mcxngtr."

38t

Second: Invalid Conditions

They are of two kinds:

A-Invalid Conditions Invalidating Marriage

They invol~ thr~ kinds:
I _Slrigh4r Mamage (Marriage of Exchanging Women under Guardiany,jp)

It is the type of marriage in which a guardian gives his daughter (or a woman under his guardianship) in marriage to another person on the condition that the other gives him his daughter Or a woman under his guardianship) in marriage too, and without any dowry paid by either. In this type of marriage. a woman is given in marriage in return for another. Scholars unanimously agree that such a marriage is prohibited; it i. deemed invalid and the couple must b.. legally separated in this <ase. whether they stated that there is no dowry paid or they kept silent about it. To illustrate, Ibn . Umar (may Allah be pleased with him) narrated: Prophet (PBUH) forbade mighar marriage, which m eans that someOl"le marries his daughter 10 anolher and the latter marries his daughl" la the farmer, without any dowry paid by either." (Related by Al-Bukh~r! and Muslim )' Sheikh Taqiyyud-Din said: "The unmistakable conclusion is that Allah prohibited the m<lrri<lge of shightk Th;, is Incause the legal guardian must not gi~ his daught" in marriage except to the one who is considered a suitable match for her. In addition. the guardian is supposed to loolc for h" bat interest, not jllSt to SIltisf)' his desirt in such a marriaCt exchanse. Moreover, th e dowry is the brides due right. not the guardians. Therefore, neither the guardian nor the father is to giYe the woman in marriage unless in her b.!sl interest. nol to fayor his own desire and interest over hers. Otherwise. his guardianship is deemed invalid. WhM tire guardian a:changes Ihe woman under hi' guardianship in return for another. he then is not looking for her best intertst. Thus. h~ is acting as if he is giYing her in marriage in return for Some money that would be his not hers; both case, are imJHrmissible. Consequently, if he pretends a dowry was paid as a way to malet this marriage lawful while in fact intm ding g,igMr marriage, it will not be permissible, as stated
Th~

382

VI

MARRIAGE

by Imdm Aflmad. This is because his "al aim is to marry another woman in return for (ma rrying) his dilughter (or any woman under his guardiallShip). In this respeet. Shari'ah (Islamic l.4w) states that such a behavi<>r of the guardian is only intended to serve his own desire. not the woman .. best interest, wheth"" there is a dowry or not, as maintained by Mu 'dwiyah and oth",n. Ho"",...,r, Ahmad views it permissible only when there is a dowry, which is not just intended to be a means of chealing, provided the wvmans interest with regard to h .. due dowry has been conside",d:'
Still, if th~r~ i. a (~rtaill dowry given separately to each of the two brides, without any illtention of cheating, provided that each of the two brides gives her conS1:nt, such a marriage then is deemed valid, a.'l the causative of harm is no longer there.
2 Mu/wlli/ Marriage

It is a kind of unlawful marriage when a m~n marries a woman, who is divorced irrevocably for three times, just to make her lawful to be remarried to her former husband. On the condition that he will divorc~ her once this purpoS( is achieved. Whether there is a conditioll stated in the marriage or agree<;! upon before concluding the contract or not. such marriage is deemed invalid anyway according to the following hadilh :

"The Prophet (PBUH) sa id ID his Companions, 'Shall I tell you about the borro"",d billy goal?' They (the Companion.) said, 'Ye., 0 Mtllel1ger of Allah!' H~ (PBUH) said, 'It is the muballi~' may AII~h cum the muhallil ~nd the mub.allal.lahu.' 1I
(Related by rbn M~jah, AIH~k.im, and other compile,.. of Had!th)" 3- The Marriage Dependent on a Future Condition An example of $uch marriage ;$ when the guardian of the woman says to the suitor, "I will let you marry her when the fi,..t of soand 50 month comes," or .. .if her mother consents." Such a marriage contract is deemed invalid, for marri~ge is considered a contract of compensation ('q>resented in the dowry that makes ;t lawful fur the man to enjoy the wOman as a wife). "fhe,..,fore, it is invalid to make such a contract dependent o n a future possibility. Similarly, it is invalid to make the marriage contract tempor.lry, as when a guardian says to the suitor, "I will let you marry her on the condition that you divorce

Clupter 6: Condi,ion. Mod< B<forc M,rri'ge

htr tomorrow; or, "' will let you marry her for a month (or a year)," Such temporary marri~ge is what is called "marriage of mut'ah~ Lt. tht temporary marriage intended just for having Sl:xual intercourse. Sheikh Taqiyyud-Dln said:
':All the m~ny eI~borate mUMw<ltir (continuously recurrent) nadi/hs agTu that Allah, Exalted be He, prohibited the marriage of mut'ah (temporary marriage) after it had been made lawfu!.""

Moreover, Al Qurtubl said:

':All badlthl agree that the time when the marriage of mut' ah was lawful did nor las/ for long, as it was soon prohibited. Then, bolh Ihe Salaf(,arly Muslim scho/o.,,; and Khalaf (lau Muslim scholars) unanimously agree on its prohibition, except for those scholars of Ihe Mfidah " who .. opinion count. for nothing."

I""

B- Invalid Conditions that do not Invalidate Marriage If there is a conditio" in the marriage contract that involves violating anyof the woman's rights, such a condition is invalid though the marriage itSl:lf is still deemed valid. Examples of such invalid conditions tbat do not invalidate marriage are the cases when the man st ipulates tb at tbere will be no dnwry for th e woman Or that tbere will be no alimony for her, or that tbe nights he will sptnd with her will be less than those of her fellow wife. Though such conditions are invalid, they do not invalidate the marriage, as they are of additinnal meaning to the marriage contract. Thus, mentioning them in the cont ract is not nece ssary, and ignoring them is not harmfuL For instance, if the suitor makes a condition that th e woman must Ix: a Muslim, and then she turns out to lx: one of the P~ople of th~ Scripture, i,e, a Christian or a Jew, the marriage in this case is valid, and the husband has the choice whether tQ invalid.ate it or nQt. Similarly, if the sui tor stipulates that the woman must lx: a virgin, a pretty woman, or a wOman of noble origin, and then he discovers that she is otheTwiSl:, he has tht right to invalidate the marriage, as his condition is not fulfillnl,

EndnotH
I AI BW:h.I<1 (2 1.fII) [4J446[ and Muslim (3(29) [5,1 11161.

1 AI fIukIIhI (2721) [SI}961 and Muslim ()4 57) [SIlOS[.

1 Al &ukhlrl {5Il96[. Ab/I. Dlwdd (3594) 14/1 6{ . S Set the k>o!not. In "Ar-R<lWJI AIMurb/' "1601 5[. 6 Al-Bukhlrl (5112) (91203) _nd MW/i m (l( SO) (51203). 7 Thll rullng.1so . pplies to ony woman und Ofl~~ gu ~ rdl.JUhip ,uch os 0,..', d.ugh~., litt.,. ok. BSee lke k>o!noIo in "ArR.:IWJI AIf,/urll/' "161318) 19 ). 9 Tht mw""llil, The OD< who marrin . _ _ who h*'I been in-evocably diYortod thrn 11",," 1(> mn., ..... lawful (or beT n lIu>bond 1(> mna.ry. 10 The ",~. 1oVw: lhr !Or....- husband; lhe bendidory from ouch IIW"I"iage. I I lboo Mljah (1936) [214S5j .... AI-HWm (186l) [21237 1. 12 Set tl>t roor ...... in "Ar.R.nt,I AI.f,/ urin "I6/32S). 13 11w IIII/iPIr: A sruif< I!fO'IP who ..-fldftl 11.. ""~ptwa '" AbO Bakr- A,i.SiddIq ..... . Unw lbooul-KhoUi/> ..... . -erd _lioN them and apt .... monr '" the Prophet. Coml""iom os wdl.

"*""'"

CHAPTER

Defects in Spouses
There are defects that if found in One of th~ marTi~d couple, the other has the right of option whether to caned the marriage contract or not. The
following
a~

some rxamples:
th~t

_I f a wife find$ out

he' hu~band

i~

unable 10 ,opulate with her

due to his impotency. sh e hu the right to rescind th e marriage

contract. In addition, if a woman cla ims that her husband is

impotent and the latter does not deny il, the hu&band is to b.
give n a chanc e for a year (10 copubte wi th her). Yet, if he st ill

could not copulate with her duing that period, she has the right

to rescind the marriage contract.

If the husband fmd. that his wife is afflicted with a shortcoming that hampers copulation. such as colpat resia. and that s uch a defect is incurable, the husband then has the right to rescind the marriage contract.

VI

MARRlACE

If oneof I~ two~pouoes find.! a MI In Ihe OlMr. such as hemorrhoio:&.. insanity. vitiligo. leprosy, bilk1nw.. or halilosis, theJorrner then has the righl of choiu whdher to cancel the marria~ conlract or 001 d ue 10 the ~pulsion callS<'d by sIKh def1$. The g",at scholar Ibnul-Qayyim said,

"EVllr, defrcl lhal Causes a spouu 10 b.: dlsi"c/intti 10 Ih. olher and P"'VllnIS Ihe fulfil/menl of Ih. purpose of mnrringe (i.e. ",pulation) entail$ Ihe right of cho/ee (whdht r III canc.111 or not), InV(llidntion In thiJ rau is worthier than th. invalidalion of 0 trade lransaction
(du. I" a dtjKI)."J The righl of oplion 10 rddnd IM marr~ conlracl is due 10 I~ $pOuse who does 001 a<:cq>lthe defrcl of Ihe other, tnn if IM furmrr has a limilar or a differenl dcfrct. This isbecause man does nol fed dissusIed with his own def1S. ~r, if any of the married couple ICcepU the MI of the other-. provided being aware o{the defl and showing a l ign of acceptance such as sayi ng, "1lCCf:pt that defKt," suo:;h a $pOUW does not ha~ the right of option to rescind the marriage COn1raCI (d~ to that defect) afterwards. When one of the married rouple has Ihe right of option (to resdnd the marriagerontrnct or not), the eneution mUln bedone by Ihe jud ge (or the one In authority). as such a mall.r needs ijlihdd and 'OllS ideration. Thus. the judge (or Ihe 0..., in authority) can ro:sdnd the marriage rontrnc! if demanded by the cliiman l Spouse, or give the laUer permission 10 do so. If Ihe contfllct is rescinded before Ihe coruIum malion of marriage. Ihe wife d0t5 not havr Ihe righl to claim hn dowry. This is because if $he is the claimanl 01 the rncinding of IM marria~ cootTIKI, Ihen she is Ihe 0..., who aUla KpMation. On the OIher hand. if the husband was Ihe daimanl of tht mcinding. then it ....,ans thal she hu noIloid him about her- defect In both cases, she does not ha~ the righllo daim her dowry. However. if the 1TllIrri. is rtS(inded aft... consummation, the: wife has the right to claim the dowry spified in the marriage contract. This il bau~ the wift's dowry becomo:s obligatory for being statw in contract .nd seuled by the consummalion oflhe marriage (I.e. having sexual int~rcourse). Thus. the dowry becomo:s tht wife's right and cannot be invalidated in th is Clse. 11 is invalid 10 marry a young girl, an insane wom.n, or a rJavr girl. 10 man who it affiitted wilh a defl thal affecl, !ht cOM ummation of the marriage. This is btall$t tht 8uardian is ,uppost.i to look for the best inttrest of lhe

woman I.In <kr h is guardianship. Yet, if the guard ian i$ not acquainted with the suilor"s <kfect. he i, 10 rescind the marriage contract ona he knows about it in ortkrto 5J ~ thc wonu.n UJUkr hi5 guardianship tht harmful constq'-""nc~

'"

In this (onntclion. if a WIt, matun' woman 1Jive$ herCQruent 10 marry an impottTll man or one who~ penis i. amputated, the guardian does not have the righl lO prevent the marriage. as sexual intercourse I matter that concerns the bride alone, nooneelse. However, if she accepts 10 marry an in$llneperson,

a lepe r, or a man afflicted wilh vitiligo, her guardian can prevent the marriage

in this cue, as the negative elfu:1S of the

hus~nd's defe<:t

may exceed the wife

10 Nfall th eir children , in addition 10 the blemish Ihal may befall the family.

Endnote-s
1

* "ZMoJ. """

'4Ir 151 1661.

CHAPTER

Marriage of Disbelievers
"DisbeIitYfl'S" here ,den to the Christians, the lews, and the people of other ~licl;; such as magi and idolatrrs. This chapter dnJs with the ruli ngs on the marriagts of such di$btliewrs if thq convert to ulam o r .tt!< the judgment of the Islamic judicia ry cooccm ing marital cases while they are still

disbelievers.
alimony, and the nights Ont I~nds with one', wives. n't 11 to Ay. th e worn,." disbdin-i"ll man is prohibit~ 10 marry are the .. me ,hO$ot prohibitrd for Musl im man tomarry{such as the m<M oo, Ihesisler,etc). Th il is because Ihe

The rulings on th e marrlage$ of the disbelievefl are th e $ame as thov on the marriages of MllII lml with respect to validi ty, divorce, , ;h/Jf.' lld','

a,

disbelieving married wolmn are rrlerm:l lo as "wives" in the Qur'!,,; Allah.

Eui\c'd be He, !Ia~:

"And /tu wift (IU
~1I1-

tM CIlrrj~r(Jffirewrxxl.

(Qur'An: AI Mlsad: 4 )

VI

MARRIAGE

Allah also says:

-AJld the wife "I P/uIrQ"h $lIiJ.. ~

(Qur'an:

AIQ~~:

9)

Hen",", referring to those di~~lieving WOmen as "wives" in the QUI'an indicates the validity of their marriage. Shaykhul-Isllm Ibn Taymiyah (may Allah have mercy on him) said:

"The round opi"i,," is that the marriages of disbelievers which are

viewtd prohibited in Islam ~re absolutely prohibited (in lItIy other religion). Iftlrey do "01 C(mvert /0 Ts1~m, they will bepunishedfor ,lrem (in 'he Herellf/er), but if thq become Muslims, they will be pardoned for ,hem, as ,hey have been u~aware of Ihe prohibition of such marriages. As for the validity or invalidity af s!<Ch marriagt. they art viewed VIl/id from one pm~ctive IInd in",,/id from IInother. if what is meant by validity is Ihe IDwfulntsS of takingfull responsibility liS a couple and fulfilli"g th e marriage contract, then Ihe yalidity of their marriage in thjj case is dependent on its co1lSummation according to the IsIDmic regul~ti"m. HCJWeW!T, if wh~t i$ meant by ",,/idity jj the enforceability of the rulings pert~ini"g to murriage, such (IS the rescindment uf th~ mUrrillge comrllCt due 10 a threefold irrevocllble diYO,u, the effectiveness of divorce. IInd the establishment of mllrrillge and the re$ult~nt chllstity, then the marriage is deemed ~~/id."
Among the ruling. on the di.-lbdievers marriage. i. that their invalid marriages are to be concnl~d to on two conditions:
a. Their invalid marriages are to be conceded (by Muslims) if th ey believe

them to ~ valid in their creed. Whatever marriages they do not deem valid are not to ~ conceded. a.'l they a", not admittnl in their religion.

b. Their invalid marriages an: to ~ conc.ded as long as they do not 5e~k the judgment of the Islamic judiciary in thi. concern. But if they do.
the Muslim. are not to concede such marriages. This is be<::au5e Allah, Exalted ~ He, .ays:
"AM judge. (0 Muhammadj, betwun t"em by whllt Allllh "'" rntll/ed . (Qur'an: Al- Ma'idah, 49)

In this regard, if the disbelievers bd ieve in th~ validity of th~ir marriages according to thei r creed and do not .~k th~ Islamic judgment, we are not to disapprove ofth~m. To illustrate. th~ Prophet (PBUH) took jiz)"ah from the mllsi of Haj~r alld did 1101 objtet 10 their marriages

Ch'p" " S, M"ri'ge of Diob<li .......

391

although he (PBUH) knew that they allowNi marrying thdr legally unmarriageable kin '. In addition, many people converted to Islam in the lifetime of the Prophet (PBUH) and he concedNi their marriag~ without pointing out the way they were consummatNi. If a disbelieving couple romes to Muslims seeking thdr judgment before the consummation of th eir marriage, Muslims are to rondude it in accordance with the religion of Islam, i.e. there must be the groom's spoken proposal, the bride's consent, the bride's guardian, and two equitable Muslim witnesses. Allah, halted be He, says:

"... And if10" i"dge, j"d~ iHtwtm them with jwtice ..."
(Qur'an: AI-MHdah: 42) However, if a disbelieving couple seeks the Islamic judgment after the ronsummation of their marriage, Muslims are not to object to the marmer of its consummation. Similarly, if the two di.bd ieving .pou.es ron""rt t o Islam, Muslims are not to object to the way their marriage was consummated or whether the conditions for its validity weft there or not Rather, if such a couple comeli seeking the Islamic judgment regarding their marriage, Muslims are to consider that matter at the time when they seek the Islamic judgment or the time of their conversion to Islam. Hence, if the wife then is among the women lawful for her husband to marry as a Muslim without any legal barrier, the marriage i. to be appr"""d of. Since there ha! been no legal barrier from the beginning. there is nothing to prevent maintaining th eir marriage after their conve~ion to Islam. Yet, if the wife is originally prohibitNi for the man to marry (at the time when they seek the Islamic judgmen t or at the time of their conve~ion to Islam), they are to be separated. This is because Ihe invalidity of their marriage contract from the beginning causes the prohibition of its being continued. As for the dowry specified for the wife before their conversion to Islam, if it i omething lawful, she can lIaVfc it, for it is lI er due right according to the marriage contract, and there is no legal reason preventi ng its being given to her. However, if th e dowry i. something corrupt Or unlawful. such as wine and swine, there will be two rulings: Fint, if the wife ha! already =eivNi it as her dowry, then it is deemed fulfilled. i. e. she is not entitled to get something instead, ;is .he ha! received it according to thei r previous cred (i.e. disbeli ef). Tbw, th e

392

VI

MARRIAG E

obligation of the dowry is d.,emed fulfllled. on the part of Ihe husband. Moreover, if Muslims raise their objection On such matters, it will C ause difficulty and disincline !",ople to convert to I.lam. Therefore, such matters are pardoned. due 10 the married. couple's con""rsion to Islam just like all other acts disbelievers used. to practice before their conversion to Islam. sond. if the wife has not got such an unlawful dowry then, a pro!",r lawful dowry like that given to ones like her is to be specified for her. However, if she has already received part of her unlawful dowry during the time of disbelief, the other part is to be estimated. and given to her according to the pro!",r lawful dowry like that given to ones like her. Similarly, if her dowry has not been specified before converting to Islam, then .he i. to receive a pro!",r lawful dowry like that given to ones lik., her, as it i. invalid not to s!",dfya dowry in the marriage contrad. Moreover, if the two spouses convert to Islam at the same time, their mar riage is to be maintained, as there is no rel igious distinction between them. Furthennore, if the husb.nd of a Christian or a [ewish woman converts to Islam whereas she ~s not, their marriage is to be maintained, as a Muslim man is originally allowed to marry a Christian or a [ewish woman, so it i.valid, with greater reason, to maintain her as a wife after the husband's conversion to Isi8m. On the other hand, if a disbelieving woman converts to Islam while being married. to a disbeliever and before the consummation of marriage, their marriage is invalidated. Allah, Exalted be He, says:
": .. lhell do IIOt mur" them to the disbeliever.; thq arenaf lawful

(wiwJ for thml, 1I0r arr they lawful {husbandf} for thtm . ~
(Qur'an: AI -Mumtahinah: IQ) Accordingly, the woman in this Case does not have the right to claim her dowry. as the reocindment of marriage is on hoc part. Similarly, if a hU$band of a disbelieving woman, who i. neither a Christian nor a Jew, converts to Islam before the consummation of marriage, their marriage is invalidated.. Allah, Exalted be He, says:

": .,tlld h{)Ul 1101 to marriage ball,u wilh disbelievlllg WflIHffl .

(Qurln: Al-Mumtahillah: ID)

Ch'p"" 8: Morriog: <>f Dishel ...."

393

In this <:as<', the man has to pay her halfthe dowry. as the re",indment of marriage is on his part. In Ihis connection, if one of the two disb..lieving spouses, who are neither Christians nor Jews. converts to Islam. Or if a disb..b,"ving woman converts to Islam after the consummation of her marriage to a disbdiever, the matter b..comes dependent on the wife's waiting period. In other word ... if one of them converts to !.slam during the wife. waiting period, thdr marriage is to M maintained u valid. However, if the other spouse does not convert to Islam during that period.. their marriage i~ deemed invalid since one spouse has convened to Islam. In addition, he who converts to Islam while having more than four wives who have converted to Islam too, Or who are Christians or Jews, has to choose only four of them to keep as wives. This is based on the fact that when Qays Ibnul'H~rith converted to Islam while having dght wives. the Prophet (PBUH) said to him, 'Select four (wives to keep) of them."' The Prophet (PBUH) said the same to othen on similar occasions. And, Allah knows best.

Endnotes
Zihdr i< tM ..ying of. hu,band to hi< wife. wM n M .... nts to . bst.in from having ><x with h<r, "(SOJIuilly.) you .~ to melik. the b:u:k of my moth.,.." i.e. unl. wfullo appmach oexu.lIy_That wu . typ< of divo= pn<lked by Arab<. in the Pr. lslamic Period of Ignorance (the IJhj{jYJl'h). 2 114', The potenl hu<bond', oath not 10 have , exua] inten:ou". wilh hi. wife for a ,.,.I.in period. ] Se.: "AI./khtiy<lrdt AI.Fiqhiyy<>J." !322.]2]] 4 AI Bukhl rl (] 157) ]6J.109 J.

5 AtTimidhl (l LlO) 13/-1351rod Ibn Majah (l9S~) IlH64I.

CHAPTER

Dowry
Juristically. the word dowry refers to a kind of compen!;;ltion ~pecified in the marriage contract or after concluding it. and it is to be paid by the husband. As for its ruling. it is obligatory according to theQurln, Ih eSunl'lah (Prophetic Tradition) and the COns..nSuS of Muslim scholar., Allah. Exalted

be He, says:
"And give the WOm"" [upon marriage) their {br/dall gifts gradawly. But if they give up willingly to you anythingo/it, then tah it hI ~"'isfQctjo" (",d uue," (Qur';\n: An-N i$1', 4-) Moreover, the Prophtl (PBUH) never let a marriage be consummated in his lifetime without a dowry. In this regard, h. (PBUH) said \0 a .uitor:

"Find something (to gi" .. the bride as a dowry), even iron ril1g.-'

if it is an

In addition, all

Mu~lim

scholan uniformly agret on itl legality.

'"

VI

MAAAIIIG

Ju forthe legal amount of dowry, it has no spifk min imum or maximum. Whatew.r is valid to ~ gi~n Illi price or I wage iI vl.Hd to be gi~ u dowry, ""gardle of lts amount. Still, we should follow the example of th e Prophet (PBUH) rrguding dowries, verifying that a dowry should k .boul four hundred dirhanu' of lil~r, likr the dowries given 10 the daughtel'$ of the Prophet (PBUH)'.

Shaykhul-IsUm Ibn 'hrmlyah (may Allah have mercy o n him) said:

pm is tWk to (Jlford 11, u"Iess /Ju u.~ ..""'.lnl of dowry is offomi fo r dtttstabk purprues. Judr 4J OOasljulMSS, showing off. .md tht likt. Ho_ r. ij rht gnJO'" i. "nabk to afford , udr (J large dowry. it is. detestablefor him to pruent;1. Mon'over. s~ tlt a matt" is vie-.wd prohibited if llu dowry C lU1not be flllllinM except through begging or JuchHe prohibited rutallS.1f Iht "mount of do"',y is m ..ch rmd it is difr;Tnd 10 k p4id kmr, it should be dttll\ld dttestllblt a/ro dut to tht mffirulty ttJllud 10 lilt groom by tilt liability burdt.rtd.'
In boo, giving a Large amount of dowry is not dttmed ckl(5tabk as long as it is not oul ofboastfulness and aln.vagana, and il does nol burd~n It\( groom causing him 10 ask othm for financial help .nd suchlik In addition, a largt amount of dowry is not deemed d(testable liD long aJ it does not burden the groom with heavy debll. These are valuable regulations and criteria that ensure well-king and eliminate harm. According to the above. it bom<:s ~ent that eUSile"'tion. nc=~ness,

-If iN duwry giO't'" is mllCh, it is not dn:m~ dtll$labk 4J long ... /Ju

and extravagance in demanding b'll" dowries art undoubtedly deemed d(tcstablt or evm prohibitM. This is h.a1lM dnnanding such la'll" dowries
does nol COII5ider the condition o f poor men, and so it has home a major _y of marriage. In addition. there art many othe!" UIInes$Iry obslacle in marital expenses w ch as the purdt~ of expensive dothes and jc~lries, hold ing expensive wedd ing rtptions and blll'lquets. etc. In fact. such mattel'1 involve nothing but lavishness. extravagan~. and w151efulnes.s, as they He void of anybenditlo any of thc Ipc use . Undoubtedly. such m.ttel'1a~ ~nsldered among the burden" obstade$. and bad traditions that must be avoided and eliminated to clear the obstacles standing in the way of marriage.

I""

In this connrction A'is/Wl (may AUah be p~ with her) narrated thal Ihe I>ropmt (PBUH) AId:
"Tltt '"011 /IImtd of wo",,," .,," 11UJ~ ",ilh ltu a~nditu.., (in dawri~ m" rriQ~. /lYing. tIC.)."

(Related by Ahm_d. AJBaybaq!. Ai-liilim ~nd othm)

Moreover, . Uma. IbnulKhanab (may Allah be pleased with him) said:

"Do not go to extrt:mes concerning the dowrits of women, for if it rtprerented horlOf in this world Ilnd pit ty in the Sight of Allah, the one of you most entitled to do so would have been the M=enger of Allah (PBUH). He (PBUH) did not marry ~ny of his wives or conclude the m~rri~ge of any of his d~ughters for mOre th~n twelve uqirytlhs'. Verily, the man might be overburdened with the dowry of his wife until/here could be ~n enmity low~rd her in hi. heart and he would 5IlY, '1 have bun demanded to get (nerything even) the hanger of water skin" '

(Rdated by An-Na"'>; and Abfl

D~wiid)

In fact, extravagance in dowries may drive the husband to disliko his wife whenever he recalls the huge amount of dowry he had to give to her. Ther.fo", the most blessed of wOm en a", tho~ with less expcnditu", (in dowries, marriage, living, etc). This is as in the Prophdic hlUifth narrated by . A'ishah. Accordingly, simplicity and easiness in dowries result in the wives k ing ble=<! and endear them to their husbands. The legal purpose behind the legality of the dowry stated for marriage is that it is conside",d a compensation given to the woman due to th e husband's sexual inter<;ourse with her. In addition, the dowry is wnsidered a sign of honor granted to the wife showing that she is ",sptc\ed and highly esteemed by her husband. It is desirable to sptdf'y and state the amount of dowry in the marriage contract to avoid any possible dispute that might arise. Nevertheless, it is ptrm i5Sible to sptcify and state it later, after wnduding the marriage contract, for Allah, Exalted be He, say"

-There i, "0 IJ/Qme upon you ifyou diwru womtll YOII hllve 1101
louched liar .pecified for Ihem 1111 obligation .. _" (Qur'tn: AI- Saqarah: 236)

This verse indicates th.at the dowry can be deferred and stated later aftor the marriage. As regards the quality and natu", of the dowry, it is obvious that whatever is permissible to be given as a price, a wage, or a rent, is permissible to be offered as a dowry. ThuJ, a dowry can ~ a kind of property. a d~bt owed by the

".

VI

MARRlAGE

groom (whdh~r it i. d~ferrM or to bt paid in advana:), or anyspedlk service offered by the groom. Th i. indicates that the dowry n~ds to ~ simplified and mack obtainable in accordance with the groom's conditions and financial stat .."o as to make marriage attainable due to the g""al be ndits of marriage 10 both individual. and communities.

Some Important Issues Relating to the Dowry

First: Th. dowry belong. to the woman, and the guardian does nO! have the right to claim it. except for what she willingly ptrmits him to take.

This is becauSl' Allah, Exa he<.! be He, ~ys,

'~nd give

the women {upon marriage] their {bridal} gifts

{Qur'1n: An-Nisi' , 4}

graciolUly..."

Yet, the briMs father, in particular. is entided 10 take from her dowry, even without her p"rm ission, provided it does neith er affect her basic

nuds or cause her any harm. The Prophet (PB UH) once said,
'You and your property belong to your fa ther."

Scwnd: The initial stage of the woman's po.=ssion of her dowry btgin~
with the conclw ion of the marriage cont""t. the same ..., in ~lIing. However, her complete possession ofit becomes due by the consum mation of the marr iage (Le. the husband's having ~xual interconf"" with h ..), the husband Slaying privately wilh her, or by lhe dealh of any of them.

Third: If the husband divurces his wife befo", consummating the mar
riage (Le. copulating with her) or staying privately with her, and he has specified a dowry for her, then she is entitled to get half the dowry. This is because Allah, Exa lted be He, says:
':4.nd If you dlvon:e them befo~ you have touched th"", tlQd )'<1u h....., alm.dy spedfid for th ." an obligatioll, Ih.n {glw] half of whtll)'<1u .puifit d ..~ (Qur'1n: AIBaqarah: 237)
So, in case of divorce, both of them

a,.., enhtled to

get half of Ihe

sptcified dowry. In addition, it is permissible for any of them to give up his/her eligible half willingly to the other while being in full possession of it, for Allah, Exalted be He, says:

".. uQle.., they JOrt:g(l the right or the on. in whou lumd is the m,m/a~'onII'Q{IJortgot$ if... ~ (Qur'~n: Al -Baqarah: 237)

Furtru,r, Allah, Eultfd ~ He, shows the virl IK and de$irability of such act s.aying:
il /. IIe11,e, 10 ,Ighlrou.ne... Alld do 1101 forget n gmdou.nesJ bdweell )'Du (Qur'An: AI Baqarah: 237)
~. Alld 1<1 forego

Thw. Allah, Enhed ~ He. commands each of Ihe Kparaled coup!<: 10 maintain gradOWlIIt55 th rough giving up willingly h islber right of half of the dowry 10 lhoe olMr. nu. is 3 Divine if1S(ruclion for both
divon;rd couple la forgd any hard feelings betwn lhem and to show lol~rana toward 00 other due 10 the sacrtd I"I!lalionship that once unilrd them. Fourth: All that i.I taken bylhe wife', fathu or brother from Ihe husband. such as clolh es and the like, i. I"I!garded a.'l part of lh e dowry. Fifth: [f the dowry gi~n by Ihe husband is n:preKnted by ill-gotten or prohibitc:d money, the marriage is still deemed valid. Howew:r, a p~r lawful dowry Jin Ihal given 10 ones [in her ;'10 be ~fied ins tead of Ihe prohibited o ne.

Sixth:

[{the marriage conlracl is concluded without stat ing a dowry for the woman, the marriage is still <imed valid, and this ~ is called the marriage of l<lfwlti (l.e. Ihe marriage in which Ihere is no dowry spedfird). In such a ClIse, a proper dowry like Ihat given 10 OneS like her must he estimaled Ind given 10 the woma n, for Allah, Exalted he He, says:

Tlltu is "" bt..m.: "P"" you if 10U diwnn wom". )'0" h.a ~ not ttJumN NOT 'Pfflfk;lfor Iltem .... obIi'..ti.m .. (Quran: AI-Baqarah: 236)

In addilion, whoen [bn Mas ' M (may Allah be pl~ased willt Itim) WlI~ a&ked aboul lite ruling on I man who mnrkd woman and did no! specify a dowry for her and he did not copulal~ wltlt her until his deallt, he said:
10 pI .. p~' d"",'Y like Ihal g/wn 10 "nuliJr.e her, "rilhn more nor Ins. Moreover, her dllly is 10 obserw htr "",ili"g period ..nd her right is to pI her pnscribt:d 5h.a1Y ill inhait..",e: Ma 'qUI"" Si...tn $<lid 10 him. 'T~ MQ.ungtr of A,1t..h (PBUH) 8<l~ Ihe Ulmejudgm<'n' i" Ihe taU of Bir ..... ' mll' WaPr;q: '"
Sh~ is ~Mit/ed

(Rel.le<! by At-Tinnidhl and other compilers of Hadilh. and AtTIrmidhl dtemed it t ~hlh (~uthentic) u.,dllh)

VI

MARRIAGE

With regard to the dowry, t"jwid. may alS{) refer to the amount of dowry specified by either the bride's guardian or the groom, or even by a third party. In such a ca~, the marriage contract is deemed valid, and if there is a disagreement concerning the amount of dowry. the woman is to ~ given a dowry like that gi""n to ones like her, estimated by the judge (arbitrator or the one in authority). The judge is to estimate. and s~cify for her a dowry similar to that given to her relatives who have similar qualities to he,.,., such a. her mother, or her maternal or paternal aunt. That is to say, the judge is to consider those who are similar to the woman among her rel.tives, with regard to wealth, ~auty, ",ason, manne,.,., age, and virginity or ~ing p",viously married, etc. [f th e woman does not have any relatives, she is to ~ given a dowry like that gi""n to oneS like her in her town. In this connection, if the hu,band divorce. his wife ~fo", consummating the marriage (i.e. copulating with her), .he is enlitled to re<:eive a spe<:ial compensation whose value is de~nd.nt On the husband's financial Slate. Allah, Exalted ~ He, says, "There Is no blame upon you If you dll'Orce women YOII Iulw no/ touched nor specified for tJum <In obligation, But giW! Ihem fa gift of] compenmtion - the we<lllhy acrordlng to his c"i"'bility and the poor accord,ng to hi. capilbility - a pro";"on ""cord,ng to whal is acctpt<lble, <I duty upon the doers ofgood.~ (Qur'an: Al-Baqarah: 236) Divine command in the aforementioned ve,.,.e i.ndicatos the obl igatinn of giving the divorced woman com~nsation in such a case, and shows that fu!filling such an obligation is among the good, righteous deeds. Bad.: to the i.. ue of unspecifIed dowries, if the separation OCCurS due to Ihe death of any of the two spouse. ~fo", the con,ummation of the marriage, a dowry like that given to ones like the wife i. to he .tated and inherite.d by the other spouse (i.e. the one who i. alive). This i. beciUse the non spe<:ification of the dowry does not affect the validity of marriage: this opinion i. supported by the ~bovementioned judgment delivered by Ibn Masud.
T~

On the other hand, if the marriage isconsummatedorthespouses have stayed privately together, the wife is entitled to ",c.ive a dowry like that given to on.s like her. This is supported by the opinion oflm:1m

.,
Abmad as wdl as o lher judgments ;SSUW by the Rightly- guided Caliphs.. in which they judged that if the door (of a room whe~ the

married couple are) Is close<! Or a sc""en is lowered (Le. marriage is deemed consummated). then the dowry mUSt be paid ',
lftbe separation is IM wifes choice, and it occurs before the consummation of the marriagt". $he does IIOt ha"" the right to claim anything of Ihe dowry. This is just like the case when the wi~ ml~ on Islam o r rescinds the maJ'l"ilIgt contract due 10 a anain ddecl in ,h. hw.band; she does not have th. right to dum her dowry in sU(h ~

Sennth: Jkforc: the consummation of the marriage, thc wife hlS the

rig ht to abstain from having sexu al int. rcouI"U with her husband until
she gets her du e dowry. This is b 3"-'" if she givt$ herself sexually to her husband willingly and then she wants to hold herself back again until she gets her dowry. $h. will not be ..bl. t() get il. On thoe other hand, if the dowry has alrudy bn agreed 10 M dertrred, stx don nOI ha~ the rigilllO 'Mllin from having sexual inlercoul'Sl' with ha husband. as she has consenled 10 reivc: her do ..... ry laler rrom the ~ry beginn ing. IikewiK, the wife is nOl entitled 10 aMuiD from havinll 5auII intercoul'Sl' with her hlUband until sh e geu her dowry, if she hil.5 al...,ady had K~UI I ;nlercour:<e with him.

Endnotes
I AI BllkhArl (S01S) [91164].r>d Muslim (43"12) 15121 ~ I . 2 A dirham orsilver equall 2.975 ""'''''' or si lver. 1 M",lim (1414) 1SJ21 K] . 4 S: -.-I/./omi}wlrril .-I/.Fiqlrl".,lo Ip. 1l71. ~ AlI,mId (201999) 16(14~], AI Baybaql ( 14J ~) [713841. and AIJjlkim (2791) [21213]. 6 An (lqiyyan equal. forty dir"',,", of .ilver. i.e. 119 "",rn! of .ilver (a. I dirham of . ilv.... equl l. 2.975 gram. oflitver). 1 AbO Dlwiid (2 106) [214021. AI1irmidn; (11 I~) [31422). and An-N...; (1349) (31427~ 8 Ab() Dlwil<l (21104) [214(6). AI. TIrmidhl (1147) [3/4SO), AnN ..", (11S4 ) [1I410] Md Ibn Mlja~ (189 1) [21-041. 9 AIBayhaqi (14434) [7/41 1].

CHAPTER

Wedding Feast (Walimah)

The wNding feast il a large mnl for many people held on t he occasion of marriage.

The Ruling on Wedding Feasts

Hold ing I ~ing banqud is an act oftM ,Su"naJr (Prophttk Tradition) according 10 the un.nimOlU agrttm<'llt of Mus./im 5(holltS. Some sdtolars maintain that it is obligatory due to the command afthe Prophet (PBUH) and that one I1 obliged to . lIend it wh en invited. To ill ustrate, the Prophet (PBUH) said to ' AbduT -Rahmln Ibn . Awf(m ay Allah tit pJeastd with him) when th e latter informed the Ptofhe! of his marriage. "Hold 11 wtdding i ta.t t vtn if by (o/foring) on' $http," (Related by AI-BOWrI and Muslim) Moreover, the Prophet (PBU H) himKlf offcml. ~dding feaSl when he married his wivn Zayno.b,' Safiyyah,'....o M.ymolnah Bintul-H1rith.

from the time of concluding the marriage contract until the end of the wedding days; it can be held within this ""Tlod. As for the amount of food offered in a wedding feast. some flUjihs view that it is not to be less than one sheep and that the mOre the better. They
ext~n<b

"" The time for offering a wedding feast

VI

MARRIAGE

base their opinion on the above-mentioned I1ruiith in which the Prophet (PBUH) said to 'Ahdur-Rahmdn Iho' Awf, "Hold ~ wt dd;"gfew;t even ifl;y{ufftring)one V1tfP: This is to be:. done when one is able to afford it; otherwise, the wtdding feast is to be held according to one. financial capability. For example, the Prophet (PBUH) hdd a wedding feast of .!i~yJ (a coohd food consisting of flour,

cooking fat, and ch~) when he (PBUH) marrkd Safiyyah. This indicates that a wedding feast is sufficient to be held without slaughtering a shup.
ExtI1lvagance in offering wedding feasts is impennissible. However, people nowadays offer lots of sh~p, camels.. and different kinds of foods, out oflavishness and excessiveness. Such extravagance causes a huge amount of food to ~ left uneaten and thrown into rubbish bins.. and thUS money is just wasted in vain, Which is forbidden by our SJwrJ"~h (I&lamic law) and rejected by reason. Those who hold such lavish wedding feasts as weUas those satisfied with them are liable todivine punisJunm tand deprivation of blessing. S ..idrs, such luxurious wedding feasts may contain illegal kinds of amusements and m~tings that usually lead to sinfuln.... They may also ~ held in hotet. where women may not pay much attention to their d""",ncy and mod .. ty and mingle fredy and iliamelessly with men, which may lead to disastrous con"'quences. Furthermore, such ...wding banquets nowadays may invol"" corrupti"" songs and music, as weU as dissolute ,jngers and photographers. In addition, lots of money is ~ing ~t and wasted on such celebrations u.sel ...ly and, rather, corrupti""ly, leading to nothing but dissolution. Therefore, those who held such cormpt banquets must fear AUah and beware oflfu punishment. Allah, Exalted be He, says:

"And how mallya city OOV<! We destroyed that was illSlllent 1/1 Its [-Yllf] liyjng... (Qur'an: AJ-Q~: 58)
H

Allah also says:

": ....,w lat and drillk, bill bl1101 uas.i...,. lllthed, He /ilea nol /hruewho CIImmil ae_. (Qur'~n: AIA 'rH: 31)
H

Moreover, Allah, Exalted be He, says:

".. . E.. I ..nd drinJ: from the provUwn ofAI/.. h, ..nd do 110t c..mmit ablllt on Iht tarth, Iprtadlng corruptlrm.H

(Qur'ID: AI-Baqarah: 60)

There a,,-~ so many known

ver~es

with regard to this issu~.

It is obligatory for whoev~r is invit~d to a wedding feast to attend, provided it m~ts the following conditions:
I ) The wedding feast one is invited to must ~ the first onc held on the occasion of that marriage. If it is r-epeated on the occasion of the same marriage, one is not obligated to attend mo"," than the first one. The Prophet (PBUH) said:

"Holding a wedding feast on 'he first dilY (of 'he wedding) is a duly, an the second day ;s a good practice. but an the third day is a sign of hypccrisy and ostentation ....
(Related by Abo D1wU.d and oth ers) Sheikh Taqiyyud-DIn said:

"It is prohibited /0 offer food and slaughter animals extravagantly (as a weddingfe(l.t) on the re.t of the wdding days (j.e, other than the first one), even if it is (I ,'uSlom or a ffle(lnS of spreading joy among ones prople.lf one holds it repeatedly (after the first day), one is to />t discrttionarily punished."'
2)

The host must

a Muslim.

3) The host must not be one of those manifestly and shamelessly diso~dient to Allah. for such !",ople must ~ avoided and deserted.
4) The invitee must ~ personally invited, i.e. it is not to ~ just an open

general invitation.
5) Th. wedding feast one is invited to must be void of anything unlawful,

such as intoxicants, singers or songs, musk, et,., ilIi happens in some

wedding banquets nowadays.

If th ese C<Jnditions are met, the invitee should attend th e wedding feast, for the Prophet (PBUH ) said,

"The W<Jrs/ ki"d of food is that of th e weddingfe(lsJ. to which are invited those ignoring it (i.e. the rich) and f rom which are forbidden those keen an coming to it (i.e. the poor). He who does not respond to the invitation (of the weddingjetlst) h(ls diso/>tyed Al/(lh and Hi5 Messengtr."
(Related by ImAm Muslim)

""

VI

MARRIAGE

It is an act "fthe Sutlnah to publicly annouoc .. th~ marriag~, for th~ Prophd (PBUH) said:
'M~~

marriage publidy known."'

rdat~d

Ibn Wjah

it in the following wording:

"Mab

maffiag~

publidy announced:

Moreover, it is considered an act of the Sunnah to c<:lebrate it by kating duffi (Arab musical instrument similar to a tambourine. but without metal

jingling disksl _The Prophd (PBUH) said: "Tht distinction between what ;$ lawful and what is prohibited (wMe celebrating a wrdding) ;J (the permi""bility oj) the )'{lice, (of

people while making the marriage publiciy known) and the duff at
the marriage (ceremony)."

(Related by

An.Nas~'I,

Ahmad, and AITirmidhl who

d~med

it a

has"" (good) hadith)

Endnotes
I AlBukhlr1 (5 ISS) {912761 and Mu"im (3 ~7S) 151218 j,
2 Al-Bukhlrl (4791) [816691 and Muslim (349 1) 15/B I) . l AlBulliIrl (371) 11 / 621 I.nd MU>lim (3482) 15/221 ). 4 AM mwfui (3745) [4/831.nd Ibn M;\jah (l915) [2/4451 _ 5 Set th. [001001. in Ar-Rawd AI-Murbj' (41)8-40\11. 6 MLaiim (3511) 15/2391 .nd AIBukh~rl (5177) 19/1OoI 1_ 7 At-Tirmidht (l09Q) (3/398) .nd Ibn Mlj.h (1 895) (21436). HAt Tirmidh! (lO89) )3/3981. An N.d i (3369) )314371. ond Ibn Mijoh (1896) [2/(37).

CHAPTER

Husband-Wife Relationship

The husNnd.wife .d ation. hip ..,ft r.s It) the ""latiol\$hip bd~n tru, married p;a rlocl'$. which should be based on kindness aoo intimacy. Each of tM IWO SPO\l5a must live kindly and fait hfully with the ()\her; nOllc of them

should with hold the other $ rights, ~~ an a\lffiiion to fulfilling any of ,hem, or gi\~ the olh.er his/her righlS bUI follow it wilh injury or reminders offavor and ~nerosily. All ah. Euiled be He. commands husband~ 10 be ki nd 10 their wives; Allah saY$:
.. . Mld live wllh them in kind .. ,"". ~
(Qur'''n : An - Nis:\'; 19)

Allah, Exa lted be He. also say"

~.. A"d due

la th~", [i.e. the wi~ul b .1."II"r lo ",h .. , b upn;ted

(Qur'An; AJ. Baqarah: 218)

al them, "cord/"l'o ",/ull jJ ",,,",omlbl,.. ."

'"'
Momwer, the Prophet (PBUH) &1icl:
"The best amongst you;s the OMe who treats his/amily
He (PBUH) also said:

VI

MARRIAGE

b~t'"

"If I were to command anyone 10 prostrate to anolher, f would command a woman to prostrale herself before her husband due 10
the greatness of his right over her: '

Furthermore, the Prophet (PBUH) said:

woman spends the night d",erting h"" husbands bed. the angels keep rending their curses On her until morning: '
It is an aCl of the Sunnan (Prophetic Trad ition) that each of the two spouses should t~al1he other clemently. show good manners towards the other, and be tolerant concerning th e harm caused by the uther. Allah, Xalted h<: He, says:
... and to fH'renrs M good, and 10 .. the compllnion 4t yowr side...

"If a

(Qur'An: An-Nisi': 36)

II i5 viewed that the word "companion" in Ihe aforementioned verse rtfcrs 10 each of lhe two spouses, Simil~rly, the Prophet (PBUH) said:
"Treat wome" kindly, as tlley are (likt) captives in y<lur housts."

In this connection, the husband should hep the bond of marriage even if he dislikes his wife, This is t>ecause Allah, ExoIte<l "" He, says:
,And live with them i" kind"eso. For if you dislib themperhaps y;>u dislib a thi"g ""d ",,,kef therd" much (Qur'an: An -Nid': 19) good.
K

A",,"

In his interpretation of this noble verse, lbn . Abb:l.s (may Allah be pleased with him) said:
"The o"e who disliu.. his wife """y beget a child fro .... h"" "nd tllat Allah "'''y ...."ke the child a means of muchgooil.'"
It is also related as a ~bib (authentic) bad/th that the Prophd (PBUH) said:
"A bdievlng mgn should not

if he dislikes on. of her quglities, h. will b. p~lll.d with "nother."'

11",. a believing wo ....,," (i .. his wif.);

It is prohibited for any of the two spous.. to withhold any of the other', du e rights, or to have an aversion to fulfilling it.

o,'pm- 11: Hwb"ndWifc Rdartoruhip

If the marriage contract is conduded, the wife, who is matu", ~nough for the consummation of marriag~, is to be giv~n to h~r husband in his house, ifhe so desir~s, unl~ ... h~ has made a condition in the marriage contract that sh~ will r~main in h~r hou~ or in her town. It is permissible for the husband to take hi. wif~ along with him when he travels as long as such a journey involves n~ith~r disobedienc~ to Allah nor any danger. This is based on the fact that the Proph~t (PBUH) and his Companions uud to take their wives along with them wh~n th~y travded. However, most of today journeys are made to disbeli~ving countries, which patronize corruption, lic~ntiou,n~ss, and dissoluteness. Hence, it is imp"rmissibl~ to tra""l to such countries just for tour ism and having fun, for such journ~ys gr~atly th...,at~n on~'s religion as well as one's manners. Mo...,ov~r, th~ woman h~rself and h~r guardians should ...,fuse her traveling with her husband to such countri~ ,. Thue is a COmmOn practice innovated by th~ w~althy n~wlyweds; they travel on th~ sN:{)nd morning of th~ w~dding to such disbelieving countries in ord~r to s?"nd th~ir so-.called honeymoon. In fact, it is more appropriate to call it the evil month, as il involves committing prohibited deeds, such as taking off the Islamic veil, putting on dothes similar to those of the disbeli~vers' as well as witnessing their bad traditions and deeds, and viSiting places of immorality. As a result, the Muslim women may return to th~ir homes affect~d by ,uch evil traditions desiring to imitate them and renounce those of the Islamic community. Hence, such journeys ar~ by all m~ans prohibited, and those who makt th~m .hould be reprove<! and prevente<! from doing so. Moreover, the woman's guardians a", to prevent her from tmveling with her husband to such countries and rid her of such a heedless husband, as she is consider~d a trust that tht guardians should preserve. Even iflhe woman herself agrees to travel with her husband to such countries, she may be unawar e of her interest and mindless oftht coruequtncts of such travcl~, That is why there are persons to control and observe her interests, namely her guardians, and preventing h~r from such acts is one of their duties. As for ~exual intercourse, the husband is prohibited to copulalt with his wife in her menses, for Allah, Exalted be He, sayJ:
~nd they ask, """ menstruation, Say, '11;' harm, so kup aW<1yjrom wivudurlngmenstTuation.Anddo notapproach them Wltil tmyart pure. And ...hen Ihey haVl! purified thtm,t/ya, Ihen come to them from ",hen AI/llh has ortiailU!d ff}' }'lilt. lmfetd,

a"""'

""

VI

MARRJIIGE

11111111 lovu tlr05t who on ronslo!1l1y rtpentant 'IIIJ tov... thw, who puri!)' ,Mm,dve..' ~ (Qur'in: AI Baqarah: 222)

In addition, ;1 is

~rmissible

for the husband to fofU hi.

wif~

to wash

herselfw remove dirt, to shave undesirable hair in her body, and to clip long dirty nails. He Can also prevent her from eating what~er caus a bad smell in the mouth. as such m.lte,.,. cau"" the husband's .version, Moreover. it i~ I"'rrnissible for the husband to fora his wife 10 take a ritual bath to remove her state of major ritual impurity, and to observe the Five Prayen. If the wife refuses 10 observe !lu'm, he is to oblige and discipline her, After that, if .he insists on her ",rusal of observing prayer, it becomes proh ibited for the husband to continue living with her. Thus, the husband should force his wife to giv~ up and avoid what~v~r is prohibited, for Allah, Exalted be He, saY'"

""S given one overthe olher...

Allah, Exalted be He, also says:

"Men ou in c/ro,p 01"",men by {right ofl ..hg! {q,ullltitJ] ..tUg"

(Qur'in: An Nis;i', 34)

"0 you who hove believed, prolul yourulvll< ond your lammN
from a Fire wIt(}sr luel is pt(}P'" and ,'(}nU, (}..er which 0 .... / app(}/nted 14J1gel$, IlImh flud HYm; they d() n(}t dl,OO,y Allrm in ../tm He (om m.mds !htm but d() whot they are commlmded."

(Qur'h: At-Tahrlm: 6)
Moreover, All ah says:
"And enjo in p,oye' upon y<lur lomily {and peoplt ] and be steadltUl tlr,...ein. We ask you notlor provi$l(}n; We provWe lor you, and Ihe {besrl (}u/Come 1$ for {tlto.e ul] rigltrtou.ne...
(Qur'~n:

11h.i: 132)

Allah also praised His Prophet

Ism~ '11 (l~hmael)

{PBUH) saying:

'!-tnd mtllfion in the Book, Ishmfltl. Indeed, he waS true t(} hi.
promile, and he wa. a me..engerand 0 prophet. And he ustd to enjoin on his peoplt pfQy"illfd Zablh ...

(Qur'in: Maryam: 54-SS)

ThUs. the husband i. re.pons ible for the righteou.nel>$, religiousness and manners of his wife, as sh e i. th e one who rai..,. hi. child,..,n and leads the family as well. Hence, if she is corrupt and neghgent of her ,..,ligion, she will su,..,ly cause th ecorruption ofhischi ld ren and his family. Accordingly, Muslims should fear Allah with ,..,gard to their wives and observe th~ir cond uct, as the Prophet (PBUH) f.a id, "Twit womtn kindly."

Ch.ptot 11: Hwrtnncl-W ifo Rd .. ion.hip

The husband is requimllo spend one of every fou r night. with hi' wi~, providro ,he i, a free woman, if ,he a,h him to do '0. This i. ballSl: he cannot marry but three olher women ~, ides her, and has 10 spend a night with each in Ihi, case. This is based On Ihe fac l that Ka ' b Ibn SiwAr pas.sed such a judgme nl during the Caliphat. of 'Umar Ibnul-Khat1~b (may Allah be pleased wilh him) and il was such a well-known judgment that il waS met with approval and none cOlllradicted it It is also the opinion adopted by .<ome faqihs, and what is mentioned above shows ils proof and Ihe principle on whieh il is based. However, Sheikh Taq iyyudDin ha~ a different view in this regard; he says thatlhe case ofbeing married to one woman differs from that of being married to four concerning the ruling on the number of nights spent with one', wife/wives. And, Allah knows h<:sl.
It is obligatory for the potent husband to have sexual intercourse with his wife, if she asks him to do, at least once every four months. This is because Allah, Exalted be He, decrm that t he maximum period for a husband who SwearS not to have sexual intercourse wit h his wife is four months; so scholars apply this rulin g on other cases of men. Yel, Shaykhul-Isl1m Ib" Taymiyah viewS that having sexual intercourse with one's wife is obligatory according 10 the wife's satisfaction, and that it i. not restricted to a certain period, as long as it d~s not cause harm to th~ hushand or hep him from , u king provision.

'"

In this ,onn"<;t ion, if tht husband h.... bttn abroad for more than six month, and his wi~ ask:s him to come back, the hushand is obligated to do so. unless he is performing an obligatory Ilajj (pilgrimage), or participating in jiMd (fighting in the Cause of Allah), or excusably un able to come back. But if he refuses to come back without having any excus preventing him from coming back, and so she rub for separation, the judge (or the one in authority) is to separate them after jnforming the husbMd. This is because the husband has neglKted one of the wife's rights, which CauSes her harm.
Sheikh Taqiyyud-Dln said:

"The harm caused to the wife by the husband when he does not have sexual ;ntucourse with her necessitates th e invalidatio n of the marriage contract. This is to be applied whatever the cau may be, whether it;, intended by the husband or not. and whether he ;5 potent or not. just like the ruling.on maintenance, but rather worthier."

VI

MARlUAGE

two spou..sa to Idl othen; aboUI Ih~ir private l1llurn ""lated 1 thrir ~ual inltn;ourw. Th is is brcausc the Prophd 0 (PBUH) said:

It i. prohibited for each of

th~

Veril~ Among the most wichd of ptopk ;/1 tht Sight of Mlilh on lire o..y of ksurrrctiOIl ;. IhemAII who hlls ~xuAI relatioll' with his wife And I~" he divulges htr (SUUIl/) ucrtts."'

(Rellttd by lmim Muslim)

Thls hndith i$ regarded as a proof of the prohibition of di\f\J.[ging the >ecrets

of lhel r sexual relations, whdher they arc words or actiGlls.
It is (CIf the husband to ~nt his wife from going out oflh., hOOK un neUarily. He sho uld not lrt her go whereVff $he liM:! wilhout his pnmis l ion. Mo~r, it is prohibited for the wife 10 go o ut of the house witho ul II\(- pennlnion of hn- hl15band. u nksl nCCr$5l ry. On the other hand, il i5 desirable for Ihe husbIDd 10 granl his wife permission 1 go o ul 10 nurse 0 her I~lly unmarriageable rd ativ<':l. such as hn- brother Or und e, for Ihis
involves maintaining the lics of kinship. FurthermOft", the husband i. 001 enT led to prevent his wife's part"ts from visiti ng her at home, unless he it furs that they may tum her against him whenever they OOme to visit h ... i n this CISe, il ls for the husband to pr event th em from visiting her. The husba nd is also entitled to p~nt hl5 wife from being hired Or employed. as he is supposed to provide for her and to meet all her needs. This is also brcausc being hired or employed makes the wife too busy to fully observe her husbar>d's rights o r to look aftef her children. Work may also nposc the wlk to immoral5itualions, especially now;aclays. when dn:rrK.")' and rnorlIlity ha~ become rare wherns dissoluteness and immoral ity are widespread. In other wom. women nowadays mi nglt with men In offices and workplaces involving prohibited privacy, which ill J great moral danger Ihat undoubtedly must be avoided. Furthermore. it ill for the husband to prevfnt his wif~ from br<:aJtf~ing her baby from a fonn~r husband unLo:$s necesslll'y. In addition. th~ wife is not to obey her parents when th~y ask her to separate from her husband, nor should she obey them when they askher to visit them ir her husba nd disag rees. Thi , is because her obedience to her husband is worthie r than that to her parents. To Illustrate, it I, narrated that the paternal aunt of jjU&ayn came to the Ptophd (PBUH) and ht asked her:

Ch'p' 11:

H,~b.nd-'Wik

Rd,tion>nip

"Do you haW! a husband?" When sh~ replied in Ihe ajfimwliYe, he "Se~ your stotus wUh him (i.e. whetha you try to $atj'fy him or not),for he is your pamdise and yourfire (i. ~. your entering either Paradise Or Hell-fire can be dependent on the way you treat him).'
(PBUH) said 10 her,

If the hushand has mor~ than one wik it is obligatory for him to treat them as ~uals and to divide the time he spends with them justly. Alla.h, Exalted be He, says:
M

And live with them in kindne.s ...

(Qur'an: An-Nisa': 19)

Allah, Exalted be He, also says:

".. So do not incline comp/tldy {toward one! and leave another Iwnging..." (Qur'an: An-Ni!"': 129)
Tbis m eans that when the husband favors one of his wives over th e otber, it makes the other as if suspended or hanging", for she has a husband and does not have him at the Same time. In thi' regard, the equal treatment the husband gives each i, mainly based on his just division ofthe nights he spends with them. This is because th e night is the time when a man goes back home, finds tranquility with his family, and generally g"'" to bed with his wife. As for those who mainly wo rk at night, such as se.:urity gunds and the like, they are to divide daytime. among their wive" as daytime for th em is regarded as night for others. Moreover, even if one of one's wives is in her puerperium or menstrual period or she is sick, she is still entit led to have her equal share of one's time. This is because the husband', presence with his wife creates intimacy and affection between them, even if without having sexual intercourse. In addition, it is not [Or the husband to set the order of his wives in his schedule according to his own desire. Rather. it is to be done by means of dr~wing lots Or by the consent of all his w ives. This is because placing a certain wife first in the husband'. schedule means that h~ favors her ove r the oth. rs, while it is obligatory for him to treat them all as equals. On the other hand, the husband is n01 entitled to take One of hi. wives along with him on a journey and leave the others, unless he draws lots among them or all his wive, give their consent. Thi' is based on the fact that whenever the Prophet (PBUH) intended to go on a journey, he drew lots among hi' wives ~nd took with him the one upon whom the lot fell ',

VI

MARRIAGE

Endnotes
I At_ Tirmidht (3904) [517(9) .nd Ibn M:ijah (1977) [21478 1. 2 At _Ti,mi<lhl ( 1161) [l/-I6Sj. J AJ_8u~lr1 (5194) 19/36Sj.nd Mwlirn (3524) [~H81. 4 Sce Ibn JarI, AI1.1rl and tlm AbIl J::.\;\1im in l!>cir boob "" raftl,.

S MuoIim (J633) [SJ2991.

6 Sce Ih. IOotnou In ... ,b""ll AIMurlri [61(38). 7 Mmlim (3527) [51249[. 8 Ibn Ab(j Sbaybah (11 1 t9) IJlm[ and AJ BayhaqI ( 147()6) (714761. Q Al-1\uldlAri (5211) [91.J.85[ and M"sii,n (62411) (&'2051.

CHAPTER

Matters Nullifying Wife's Right of Expenses and Share of Nights

If th e wife travel, with out the permission of her husban d, o r w ith hi, permission but 10 fu]foll som ething for he rself, hcr right of expenses and her share uf her hmbamr~ time (i ll ca.\~ she is n()t his only wife) drop. This is ~(ause when t he wife tra""ls with out her husband', permission, she is regarded as a di,obedient, ..calcitra nt wife. On the other hand, if she travels with the permission of hcr husband but JUM to observe her own inl"rest. it be<:ome. u nattainable for him to enjoy h er due 10 her pe""oal ..... son . Th . Same ruli ng applies whe n the husba nd wishes to take his wife along with him 00 a journey and she re fme,; ,he does nO! have any rigll( of expen ses or sh a.. of her husband:, allot ment of night, in this case, os ,h. is wmidcrcd a d i,ok<!ient wif.. Likewi" if the wife refuse. to go to bffl with her hmhand, her right o f up"n~ and her "h are of n ights are nullified, a., "h. b(JolnCS as dis~dient ... ,"".ldl,.nl wife.

'"

VJ

MARRIAGE

I! is prohibited fur th~ husband to have sexual intercou= with one of his wiv .. on a night or a day which is nO! hus unless fl""5Sary.
On the other hand, it is p-ermissihle for one of the husband'. wives 10 give

up her share of the nighls allotted by th e fm,hand, after taking his permission, to her fellow wife. This is becau~ the nights allotted arc among the wives'
rights, in addition to the fact that both wives agree to such a deal. To illustrate,

Sawdah (one of the Prophet's wives. may Allah b.. pleased with her) gave her night to her fellow wife' A'i.,hah (may Allah be plea~d with her) SO that the Prophd (PBUH) used to spend wilh ').'ishah both her night and that of Sawdah'. However, if the wife who ha. given he r share of night. to anothe, daims her share back, the husband is to comply with her requ~'t MOl'eover, it i, permissible for the wife to give up he, right of expenses and .hare of night. for th~ purpo"" of making the husband keep h~r as a wife. Allah, Exalted be He, say"

womiln foilr. fmm h~r hu.band "("'tempt Or n a.i"n, ther~ i. n" ';n upon th"m if th ey make temu of odtllmlent betwten them _ and stttlemtnt i. (Qur'an: AnN~': 128)

~And ifil

"".t...

With n:gard to the aforementioned verse, . },'ishah said:

"U cOncern' the woman whose husband does not want to kup he, with him any longer, but he wants to divorce her. So, she says to him, 'Keep me and do not diYorce me, and I give up my right of expenses and my share of nights.'!
In addition, when Sawd~h grew old and fear<:d that the Messengerof Allah (PBUH) may leave her, she said:

"r giw my night (i.e. the night the Prophet 'pends with her) to .A'ishah: '
It is important to point out that if o ne marries a virgin while having other wive., one should spend the fir,t S<'ven night. with her and then by turn., without deducting tho"" ""ven nights from he, share afterward,. However, if such a man mani .. a woman who ha, bn previously marri~d (i.e. not a virgin), he should spend the first three nights with her and then by turns, without deducting those three nights frum her ,har<: afterward,. This is becau~ AJBukh<irl and Muslim reJa~d:

"AM Qildbah narrated an the authority of Anas (may Allah be pleased with him), 'It is 011 a<t of the Sunnah (Prophetic Tradition) rhat if a man marrie~ n l'irgiM ~~d he has Illready a wife wh" has

C1up,tr 12: M .... " Nullifying Wifi . Righ' Qf hp<.-. and

S..,. of Nigh "

~ 17

been previously married {i.e. not a virgin}. then he should spend the fiTst st"l'en nights with her (i. e. the virgin) and then by turns. And if a man marries a woman who has been previously married, then lit should spend the first three nights with her. and then /'y turns.'AbU Qildbah commented, 'If1 wished, I would have said th(;lt Anas ascribed this b.adfth to the Prophet (PBUH).""
(Related by AI-BukhArl and Muslim) Still, if the man's bride who has bttn previously married (Le. not a virgin) asks him to spend with her the first ~en nights instead of thru, he should comply. Yet, he has to spend the same number of nights with his other wives. After that, he is to apportion nights among them all, one night for each by tum.<. This is because when the Prophet (PBUH) married Umm Salamah who had bttn previously married, Le. she was not virgin then, he (PBUH) said to her:

"The,e is no lack of estimMionfor you on the part of your husband (i.e. himse/fJ. So, if you wish. I wn stay with you for seven night.s, but in case I do, I ,hall have also to ,pend seven night, with each of my wives afterwards."'
(Related by Ahmad, Muslim, and other compilers of Hadith) One of the relevant issues in this connection i. the wife. disobedience, recalcitrance, arrogance, or violation of her marital duties towards her husband. In this respect, it is prohibited for the wife 10 disobey her husband unjustifiably. For example. a husband may notice that his wife shows disapproval of having sexual intercourse with him or slackens when he asks her to. In this cast, the husband ;s to admonish her and I"(:mind her of Allah's punishment. of his rights ov~r her as a husband, and ofth. sin of not fulfilling her marital duties towards him. If she persists in disobeying him despit~ his admonishment, he should sex ually forsake her in bed and stop speaking to her for th ree days. After that, if she still disob<:ys him, he should discipline her by b<:alins her but not violently, i.e. in a way that do<:s not cause her injury. This is b<:cause Allah, Exalted b<: He, saY$:

Butlhou lw/vnljrom whom you fiar arroganct - [first] .wvi5e th"",; [th~n if they per';'t], forsa ke them ;n l>ed; ,,,,d !finally), ,tri"thettl..~ (Qur'an: An -Nisa': 34)
H

In this ronne~tion, if ea~h of the two spouse. claims the injustic" of the other and t here is no way to reconcile them, the judse (or the one in authority) should su.k the intervention of two equitable arbitrators of their famili.s to

VI

MARRIAGE

,,",,oncile them. This is ~au.e relatives are supposed to be more acquainted with Ih. actual ",aSoftS behind the couple', dispute and more honest and keen for their best inlerest. Those two arbilrators shou ld have the intention of "conciling between the two spouses. for Allah, Exahed be He, say,:

"A.nd if )'(IU ftar dlsstnsion IH:lwtm Ih~ lwo, .end all arbitratar from his ptopl~ and an arltitralor from hflT' people. if they ooth desi,." reconciliation. A.llah will 'aWt it belween them. 111dud, A.llah i. E..~rKllowing and Acquainted (with all Ihing.,.H

(Qurln: AnNisa': 35)

The two arbitr.tors should do their besl to bring about reconciliat ion and
agreemenl belwun Ihe married couple. However. if th ey are unable 10 achicvc it. they may separale belween Ihem justly. be it with or without co mpensalion , AI a ny rat whatever Ihe arbilralors de<:id. should be complied with in order 10 fewlve the dispute. And. Allah knows best.

Endnotes
I AI-Bukhl rl (5212) [91387] and Mu,lim (:l6 14) (S/289]. 2 AI llukht rl (4<5(1) (8/)35) alld Muslim (J021) , JAb" D;\wiId (2135) 12/416]_ 4 AI Bukhlrl (5214) (9/389 ] Ind Muslim (:l6II) 151287)
j

Mu.lim (3606) 151284), AbiI Dlowild (2112 ) (21411 J nd !bn Mlj l h (1917) 1214%].

CHAPTER

Wife's Release against Payment

(Khu/')

A wife's release against payment is the wife', separa tion from h .. hl15band in ,..,turn for remuneration paid to the husband, and it is effected through a

certain sp<lken form.

Llngu~ti,ally,

the Arabic W<)rd AA"I' means taking off

something. and Ihi& term implies that the wife in this n.., "'parates from her husband just like taking off her clothing. since the husband and hi. wife are

rder""d to in the Qurln as clothing for one another due to their

union, and intimacy. Alla h. Exalted be He, say",

c1~nes.s,

"... 11uy are dothing/or)'flll and )'<Ill fl.re clothingfor them .H

(Qur'An: AlBaqarah: 187)

It is well known that marriage is a union bnwee n the husband and his wife to live logrther in kind" . ... bu ild up a new family. and bring up a new ge neration. Allah, Exalted M Ht, !aY':

VII: DIVORC E

-And DfHiuig.u lf 11r,1/ H~ crulMfor you fro", youndws IIUI"'" Ilrat you "'ay filld tn"''IUililY ;II tire",; an d He pllKnl l/dwa ..

YO" "/fertion fuod ",~rcy. ..

(Qurln: Ar- Rum: 21)

If this noble obj ective of ma rriage is not fulfilled, as when there is no mutual affection betwn th e ,pauses, or when there is no affection of the huslxlnd towards his wife, or when tMir living together be.:omtt unbeanble and it If too difficult to scale thrir disputrs, the husband in w eh C3$($ is obl iged to release her kindly. ALlah, Exalted bt- He, says:
~ .. the ..
M"

{after 'hat}, ri'Mr IcNp (lw"/ ill a .. IIIPfabk ""'..,.... Tf!WlR (her) wlllr fTf!Dlme .. I..

,ood

(Qur';1n: AIBaqarah: 229) Allah at&o says: -S"t iflhty Iqi!rtJle (I')' diw"n/. 1I11t111 .../U " ,rkh tacit (oftlttm}

from Hi. "lrundRltCl. 1IN1 twr if Allah McomJIfWIIIg " ..d W",.
(Qur'ilo n: An-Nisi': 130) However, when the: husband loves his wife but she dislikcs him, his marmeR, his ' ppear:m , or hislaclt of reUgiown....., or fea T$ th e sin of not observing his rights, it is permiloSible for her to aslt for separa ti on by ransoming herself thn:lUgh payi ng him B monetary compensation. Allah, Exalted bt- He, says:

... /rut if you pr tluu lhey will .."I knp lwllhln/ the limits "f 1I11t111, lhen '''~ .. M IIJtJmt upon elthtr "f 'htm '''''etminl tlull by which she nIIII(}III./tnsdf.... (Qu r'An: AIBaqarnh: 229)
This ~ ",",aJU that when any oftM two spouK$ f1s [hal living togethu results in disputes and violations of one another', rights, ", when the wife fears that 5h~ may disobey h~r h... Wand, it is permissible for the wife in this eau to talte the initiative aod lSlt for her release aga inst payment. LiLtewise, it is permissible for the h .... sb.nd to Keept such rem l,ln eratlon in such cas..s and to release her. The wisdom beh ind ordinance of a wife's release agai nst payment (l h"l") is to enable the wife 10 irrevocably oeparate from her hU$band. as it is a just setlletnent for Ihe husband and the wife in casn like the a/Qre",",nlioned onC$. It is I n act of the S"nn"h (Prophetic Tradition) for the hltSband to ag.r to his wife', request of releue. How~r, if lhe husband IovC"i his wife, it is dC"iinbk: for the wife to be patient and nO! to as.k for separation.

The wifes ,lease agai nst payment is permissible when its 'ason is fulmled as stated in the aforem~ntioned Qur'anic ver",. namely the fear that the two spouses will not keep a good ,lation within the limits of Allah. How~ver. when th~, i. no need for such separation. it be<.:omes detestable in this c....,. or ~n prohibited according to others. This is because the Prophet (PBUH) says:

"If any ....oman wb her husband for divorce withoul ,ome ,frong rewon. the odor of Paradise .... i/l be forbidden to her."'
(Rdated by the Five Compilers of Hadilh In this regard. Sheikll Taqiyyud-Dln said:
ex~pt AnNas~i)

"When a wife dislikes her husballd, the SUllllah permits h. r to ask for release in return for remunemtioll alld ",nsom herself from her husband, just w the capli<mll,Om. himself.'"
Sometimes, the husband does not like his wife but keeps her so that she may become bored with living with him and may ask him for ,lease for monetary compensation. In this case. the husband is considered unjust to his wife and it is prohibited for him to take such compensation. and the release against payment (khu/') bc:comes invalid. Allah, Exalted be He, say"

da "(It mlJlce difficultiu for them III ordtr to take {Inuk] part of what you gan them ..." (Qur'~n: AnNisA': 19)
The meaning of this Qur'anic verse is that the husband must not treat his wife badly to make her give him back all or part of what he has paid as dowry or give up some of her rights. Still. the verse makes an exception as it permits the husband to make difficulties for his wife to get back the dowry he has given her if .he is an adulteress; Allah, Exalted be He, says:

~... And

":,.unk-.. thty commit a dear immorality {i.e. Qdu/tery]...~

(Qur'o1n: AnNisa': 19) Commenting on the aforementioned pleased with him) s~id:
diffi~ultie. v~rse.

lbn . Abb"-!; (may Allah be

'This ytrse add,...:;e. the man ....ho hales his ....ife. and mam for her so that she may mnsom herself from him (by rel. au again.t payment). Allah. E:ullled be He, forbaae such an a~l. Yet, Allah Ihen says, '.. un/us they commit a clwrlmn"wality {i.e. adultery] .', in .... hich CWt it is permissible for him (i.e, the husband) 10 make difficulties for her until.he asks for stparalion and thus he gets back the dowry he ha. paid her. separatingfrom her in return for getting remuntnltion:

against paym~nl (khun is ~rmi&Sible according to th~ Qur'an, the S..""ah (Prophetic Tradition) and the consensus of .cholors, provi.drd there o:ists good rtason for it The Qur'ank evidence of the permissibility of release against payment is the aforementioned "",.se, in which Allah, Exalted be He, says:
fear IIUII thty ",ill not keep (withilt] th. limits "I Allah, thtn thtn iJ 110 bla"", Upoll t itJu, afthnu tD"ce,ning tlull by which me rallSOms he"elf. ." (Qur'an: AI-Baqarah: 229)
, but if}'OlI

'"

Vlk DIVORCE
Rel~a ..

As for the SU""llh, the following Iyldfth, wh.ich is related in the SMi/1 (Authentic Book) of Al- Bukh~ri, is a proof of the permissibility of a wife'. rdea .. in ,turn for remuneration:

"The wife of TMbil Ibn Qays came to the Prophet (PBUH) and
said, '0 Messmger of Allah! 1 do not blame Yhabil for d efts in his character or his religion, but I, being a Muslim, dj,lib behaving in an unIslamic manner (if I remain wilh him): Upan that, the Me~enger of Allah (PBUH) ,aid (la her), 'Will you give back the garden which he (Thabil, Ihe husband) has givm you (as dowry)?' She said, 'YeJ.' Thereupon, the Mt~mger of Allah (PBUH) said to him (Thabit), ~ccepl the garden, and divorce her once:"
As "'gard, Ihe consensus "fMuslim scholars, Ibn 'Abdul-Barr said:

"A1.Muzanl is the only scholar who disagreeJ in Ihu regard (i,t . disagrteJ on the pt'rmwibility of relea.e againsl payment). Ht argues that the verse (i.e. the aforementioned on"; AI-Baqarah: 229) u abrogaud by the following ve"e in which A.llah, Exalted be Ht, says, 'Bul if you w,ml 10 "place ant Wift wilh ,1IIothtr and you have given one of them a groal amaunl {in gifts}, do not take [back) from it anything.. : (Qur'an: An-Ni,a': 20)~

There are some conditions for the validity of release against payment (khul'):
o The monetary compens~tion must be paid in return by solllrene who is legally qualified to don~te, o The husband must be leg~lIy qualified 10 divorce. o If there is no legal reason, the husband must not make difficulties for his wife to get back the dowry he has given her. o The ",lease againsl payment (khu!") must bt done through it, legal ,!'Ohn form.

If it is do"" through a SJI'OIten form of divorce Or an implicit form. provided the husband has the int~ntion of divorce, ,hen it is regarded u divorce. In this CIS(". the ruling On ,dease in ,tlurn for payment (khu!") ill applied so that the husband is not entitled to take hill wife back. but he can remarry her with a new marr iage contl1lCl. even without . he marrieo and n pal1ltes from another huslnnd first, provided it (the releaK in return for poiymentJ has not bf:en pnceded by \WO divorc..s that makr it a thred"oId ir~ocable d ivorce.

if the separation is done through cM legal $pokrn fonn of a release in retum fOf p~y ment (kllld ' ) Of its equi\"lIknt forms which indjCllt~ the CIIncdlation ofmarriage or the likr. provided the hwband does not intend it to b<: a divorce, it i. con$ide~ a me re cancellation of the marriage contract which does not affect the nu mber of divorces. This ;s the opinion reported to have been adopted by lbn . AbW. (may All ah bf: pleased with him). Ibn 'Abbb ba$td hill opinion on the fullowing st1juenc~ of verH5: Allah. Exalted bf: He, uy!. ~Di""1U is ' ...'(e..... (Qu rln: AI Baqar.lh: 229), and then urs. ~... II~" '''en is .... W me "pon .. of ,''"'' rcmu,."j"g 1>, ...10/(" site ,..."som, ~"'f ...- (Q urln: Al- Baqarah: 229) After lhat, Allah u.)"$, - ... A"d if " e" .... dlwm:u "" (for tM 1 "/nll/_I, '''no . he is lIof kI ...',,/ /0 him IIftffWfIrd "",il [aft,,] ,u /tI""in" hUJ/UfHd ,/11" 1/1," him ..." (Qur'An: Al -Baqarah : 230) lbn . Abbb argu ed that Allah !TIcntion. two acts of divon:c, then an act of the release against p~ym e nl (khu/,), then an act of divorce. If the release in retu rn for payment affec ted the number of divorces, there would be four acts of divorce. not three, which is invalid. And, Allah knows best.

~r,

<'i,"....

'''tIt

E ndno l es
t AbO. NwiId (2226>(lf4631. AI n rmidhl (1190) ()J4'Ul. ond 2 5 MJljmu 'ul-Fat6Md 112/2821,

Ibn MJjab (:lOSS) 12151 al .

1 AI Bukhl r1 (5273) 1914891.

CHAPTER

Divorce
Divorce is the di!5<J]ulion oft h. bond o f marriage o r part of it. 'in. ruling on divorce varies acmrding to the diffue nt situations. It can k p"rmissibl . detestabl. > d.,.;,.bl", obligatory. or prohibited. So, il ca n involve any of the m~in 11"" rulings.

Divorce i!i permissible when th. husband needs it becaus.t of his wife's ill
(onduct, the harm cau$(d 10 him by kping hi. wife, and the non-fulfillment

ofth.

l~al obj~ tjve

of marriage by keeping her.

d iVQTct i. d etestable if there i. no need for it, a. when there i. no problem betw~ n the married couple; some s.cholars deem it prohibited in such a cu . According to the prepo nderan t view, divorce i. p" rm is.sible with detestability in this cue, for the Prophet (P BUH ) says:

H"w~r,

"Th. mOST thtestab~ lawful act in th. Sight of Alklh is diWJrce,' (Related by Ab" Dlw(\d and lb n M1jah, and the Inen ofit5 chain of transmitters ne tru stworthy)

VI[ DIl;QRCl!

In thi.! l!adith, the Propnct (PBUH) refm to divoru as lawful tbough it i.! detMahle in th e Sight of Allah, indicating its detestabili ty-based permissibility In this caSl:. The reaSOn for its dctesu,bility in th i' case is that it puts an end to a marriage that fulfi1l5 Ihe lega lly desired interestS. On Ihe other hand, divorce txcomes desirable if the wife suffers harm during her marital life, such 1.$ when there is diw-ension bttwttn her and her husband or when shoe dislikes him. In this Ca$oe, malntaining the marriage ~ mo.., harm I(lthe wire, while !he Prophet (PBUH) says:

"Ont sho"ld nor hllrM o/hus I"IOr should one Sk bultfit for ontstlf by causing harm /0 others."
Divo= be<:omes obllgalory far the husband If the wife is neither righteous

nar upright on the religious level. For example, the wife may be SO negligenl In prayer thal she abandons it or performs it belatedly, while the husband Is unable 10 rectify her, Of she may tx morally dishonest. In such casa.. it Is obI igalory for the hwNnd 10 divoru her according 10 the prq>andennl view in this '"'8'o'rd. Ibn Taymiyah (may Allah haw mercy on him) llid, ~I/ tlot wift rommits od"lury, it i$ I"lOl for the hurMMd /0 kNp hn Olher .....re, Itt 1$ comide.w 11 cwdcold.'" Similarly, if the husband i.I neither righteous our upright concerning religion, it iJ obligatory for the wife 10 nk for divorce, or separa te from him by release agaInst rem uneration (khul ") . h is nO for the wife to Itly I with him as long as he Is negligent of his religious duties. If the hl15band hu sworn not 10 haw saual intercourse with his wik and then the waiting period of four monlM pilS$tS and he $Iill ref"mes !O do so and expiate IOr bis oal h, il iJ obligatory for him !O diVOf"(c t..,r, and he must be forced 10 00 so. This is bauu ADah, I'.nJted be He, sa)'$:

For thOH II'hOlwtll r1101 to h,1't '"lUll rtllltloll' wi rh their w/w:s Is, waitlllg Hme offour monlhs, but I/thq return (Io nOnllll1
""wHon.) - thtn /lIdud, Alwh /J Forgiving "Md Merciful. And 1/ /hty dt( ldt on di'O'(Jra - tht ll indud, AI/"h /.0 Htllrillg and Knowing." (Qur'in: AI-Baqarah: 226227)

It is prohibiled for lhe husband to divorce h is wife while she is in heT Imnses. during hu period of confinement, duri ng her swe of major ritual puriry (ie.the period bet_n the wif~. mrmln,aations) in which he has aln:ady had lUual inlcn:ou.rw with her. The husband is also prohibited to divorce his wife thrice at a time, as ~ will point out won in detail, Allah willing.

TM prool's 0( the legality of divarc .. . "" iIIuStl"llN in th .. Q UT'in. the $un .....h (Prophttic Tradition) and the COnKnSUS 0( K hoIaTl, Allah Eu1tN "'"

He, says:
(Qui"ln: AI-Baq~Bh' 229) Allah ab o says:

"0 Proput, ...hell Y"" (Muslim.) dl"" ..... Wilm~, dil'OTa Ih..... for (,hu ommmctmellt of] their walt/II' period .. ." (Qur'an: Al-Ia11q: I)
Mouover, the Prop""'t (PBUH ) says;

"DillOr bdongs oll/y '0 tllr a nr wha ,akt$ hold oflhr kg (i.f!. Iht husband)."
(Rd N by Ibn MA and Ad'[)haqUlnt, and lhe"" ...., other jm IJ,adllhs indiat ing the same mailing)
Bcidn, many Kholan rq>Ort tlx ron5I':ruu5 0( foqllts on the kpIity of divorce.

The wisdom behind divorce is d ea r, and it is one ofthe merits of this grut rcUgion,ld am, When ne,rssary, divor, .. becomes the legal s.o!ution to marital probleml, All ah, Exalted be He, says:
(/If/tr ,hat), eI,htr ktql (her) In all accepttoblr mOlllnrr 01' "'/taH {hrr] ...ith good matrllm t .. "
~ _thm

(Qur'an: Al -Baqarah: 229) Allah a1l0 &ays:

l lry di....ra/, AI/all ",1/1 rnri(h rQCIt {of IhemJfrum His IlbwnIW"". And ewr il IJIOlh Enromf'"Ri"1 ..lid Wi.... (Q ur'An: An-Nid" 130)
M .., 8
If'~ KfHUt'k

Divorce is a ""lid and a good s.o!ution when the"" is no longer a benefit out of kHping the marriage tie, or when the wife il harmed by staying with her husband, or when either of the married couple is immoral, defiantly disobedient, and irreligiou~ unli ke th e other, The commun iti es prohibiting divorce always suffer many serious social problem.! slI(:h as the spread of su icide. crime, and the corruption of fil mily lif~. The 8"'11 ""Iigion of Islam permits di~~e and makes propcr rulrs to l"I'8ulale il in order to achieve the desired inlrrffiS m d f\'P\'l any possibk n<i1,

.,.

VU, DIVORCE

and this is the typical way of Islam in all ils g""~1 laws and ~liOf\S that maintain t~ int~fe$t5 o(humans in IlK long and the short run. Then:foll'. we praise Allah, Exal1n1 be Ht. for Hi s bounty and bcsloWJ[ ofl&lam upon w.

The statemen t of divorce is valid when pronounced by a legally qualified, f~wiUed, 5af\C husband o r by his aUlhoriud reprne ntative, as the Prophet
(PBUH ) says:

-Divorce ~IOIrK' only 1 the one who Illias hold of Ihe I~ (j.e. 0 lhe husband):
Hownorr, Muslim bOrt\l'S '~ly unqualified to divorcr if his "",nl.1 faculties all' lacking due to something cxtuu,ble. such as h..ing inunc.

unconscious, aslet'?> a suffere r from a di ~aK that c.u~ unawareness such as pleurisy, king forced 1 drink an intoxicant. or ta king anc"het ic for medical 0 t!'talmon L [f one in any of the aforementioned cases pronouncn the spoken form of divon:r, the dIvorce i. oot legally cffeclive. To illustr:l.le. AI-Bu kMrl rflatn! in hisSahlh (Authmlic Book of lftIdllh) that ' All Ibn AbCllllib (may Allah be pleased wilh him) $aid:
E1I<Uf divorct! iJ ~rmis.$ibk uupt that /Iy an Insant man.'"

This is because lanlly i$ the principle upon which a legal judgment Is h.ased. On th e olher hand. if a p"rw n's memal (~cu lt ie$ are lacking due to his willi ngly taking an intoxicant. scholars differ ,boUI the validity of his divorce in such a '....,. In g<:ncral. the Four Im Ams as weU :tU a group of Muslim scholars maint";n that such. divorce is valid. If a person is forced to divorce his wik and he divorces her in order 10 avoid injustice. opprusion. or p"rseculion. his divorce is noI lqr,ally dftive. This is because lhe Prophel (PBU H) says:

"Thm is no divorce or t rnllnripafion in case oJ dufl!SS."

(Related by Abmad. Ab(l Dlwild nd lbn M lja hJ

Moreover. Allah, Eultn! be He. laYS:

fH:Uef. . aapl for ...... who /, fo,.u: fro ...."o.."'"e "iJ ..../lpml wIoUe his d heart is -=u .... i"/allh ... (Qu rln: AnNaIll: 106)

.Whot>...., JI,klie~a in {i e.. d"'ia) All"" QJtn "iJ

Though di.beUe( is mOft serious lhan divorce. Allah ~ lhose: who pretend to be disbetl~R under durrs$. Th us, divorce. wilh g""al .... lftS()n. i$ nOllegally effective when th e hlLSband is fon:ed to do it. However, divon:e Cln

a..fIlt! 1: DiOOlO: be vaUd under dures.. This is in Cll$C thr husband ha.! JWOrn not to have sexual
interrouTSe with his wife and thm four months pass and he nill rt:fuses 10 have suual intucou~ with her and expiate fllr his oath. When a man is in a St~te o f anger but still awart: of what he is s.aying. his divorce is valid in this CaK. Yd. if h. is too enraged to be aware of what he is "'ying, his divorce is dmcd void. Moreover, if a man "lItCl"J the statement of divOKe jokingly, h is divorce is dtcmed valid though hr doe$ nOl mean it, a.! he <MI nt to ullCI" the spoUn form of divorce. And. Allah knows bcit

Endnotes
I ... bll m ,..M (2178) [2/418j.nd Ibn M.Ijoh (2018) !2/SOOj . 2 Se< M.ljtnu ul-F.ototw.! (32/ tU ). 3 Thl$ upr.,..;c,n, namrly""takln, hold to(. woman.Icg~; n ..... bIc, implies havin8......:t inkmlUn< with h ... Th ........ m..Ri", of Iho b4dftl. is tMi .... husband is tl.. ""'r OM 10 whom the rigIM of diYoru bdonp. <4 Iba Mlj.oh (2OII1) [21SJ2] and Ad . Da~ (_ ) roW4].

S "'1BIlkhIoi (9/48 11. "" l1nnldhl (1194) [Jl4'.161.

6 AbO NW1'>d (1193) (11446' and Ibn Mljah (lO46) (2/S1 4).

CHAPTER

Sunni' and Innovative Divorce

Sunni Divorce
Th~ di_ = according '0 Ihe Su", ... h (Prophetic 1'radillon) ilthe divorce that takn pIa according 1 the W;ly orWoined by Allah and His M.....,!lg~r 0 (PBUH ). It is effectnl. by the hU$band 's single pronQ ',,"cefMnt of divQK e in an interval between the wife', men muat ions in wh ich. he has not hld sexual i nte rcQur~ with her, and then he leaves he r until her wail ing period il ov", Tills divorce acconls wilh Ih( 5.. ,,,,anin tUIllS of n u rn~ r, as he prono unces . lingle diva",,. on his wife and leave. ht. until her waitlns ~rlod ls over. It also accord$ wit h the Su"n" h in term, of tim ing. as he divorcu her d ur ing her stl tt 0( major ritual purity (i.e. Ihe ~riod betwttn her menst ruations) in which he Iw 001 had sexual intn'Cou~ wIth her. Allah, Enlttd bt He. says:

"0 Prophet, ..mn you (M usli,..,j di'l'fJf'Ce _/M!!, din".:e fr1r [tucom l'MJ'lUmell' ofl their waiting pnlod .~

th~

(Qur';!.n: A.I lal~<l.: I)

VI I: DIVORCE

Commenting o n tht aforemtntinntd Qur'anlc verse., Ibn Mali 'Qd (may Allah be pleastd with him) "Id:

"The erse mums tilnl WOmen can bt divorced only during their state ofpurity when no stxllal inrercouru has taken place."'
Mnreover, ' All Ibn AMllllib (may Allah be pleased with him) said:
"""If

"lfI-'pk adherY to the ardimmu of AlMh conurning divorce, tk w;U newt' rvgrtl diovn:ing a _ .m. Ht prollOunU!J a singk dWorce (at a time) on his w and thm ktJ_ her for thr periods ife, of me/lS/n/ation during ",hich he C fake her back ifht /itA"' /ln

Th is mearu; that as long as the W(lman ;s sti ll in her woiting period, her husband can take htr back, as Allah grants the man who has pronounced a single divorce on hil wife a chance to take her bade du ring her waiting ]>I'riod if he regrets divorcing her, provided it is not hil third pronooncemrnt of divo=on her, Howf'ver, If It ~ tM third divoree, the hU$band CIInnot take his tJtwife bad<.

Innovative Divorce
Innovative divo. ct refers to the divorce that takes place in a prohibited way 5uch as the following cases: Divorcing ont's wife by pronouncing the spoktn form of divorce thrice simultaneously: (lnnovati,.., diVOt in turns of num)x,r) Divorcing one's wife wh ile she is in a stale ofmenstruation o r conii nemmt: (innovat ive divorce in ttm'l5of timing) Divorcing ont'S wife whll< she is in a Sllttofpurily in which he has ~ ~xual intercourst with lKr; (lrmovative d ivora in terms of timing) Innovative divorce concern ing the num!)(,. of th( pronouncements of divorce make. ont', ex -wife prohib ited for on c 10 lake back until she marries another man and Ih(n ~paratu from him, Allah, Eu lt ed!)(' He, says:
-And di'l'Orcai "e~ {fo~ flu ,"ird "me}, tMn sit. iJ; 1101 lawfu' to IUm afterward ullli' [lIfter} IIx .....rrtQ If "oaband O,~ thOll hlm ...(Qu ~'~n: Al-Baqarah: 230)

if". "as

As for the innonlive divorc. concerning thelimi "3 of divorce, when Mlch divorce takes plact, it i, desil1lbk for the hll$bomd to take hili wife h.ack. Th ili is btcllmewhcn' Alx1ull~h Ibn ' Umar(may Anah be plu$td with them) divorced

his wife during her menses. the Messengtf" of Allah (PIlUH) orderm him to take hu back,' as related by the Group of Compilen of l;J.tJdith. Thus, jf the husband In such a ca", taUs his wife back. he must keep her unal she bf:comes In a state of major ritual purity Ind then he can divorce her ifhe pleases. It is proh ibited for the husband to divorce his wife through the aforemention.ed innovated ways of divoKe, whether concerning the numbe:rofthe pronouncements of divorce o r its tim ing. Allah, Exattod be He. says:

T1mt [..fin tluaI}. eit/w kp [" er} ill,.., 1lCUp1IIbIe IIIIlIIntT o~ mNN {1ter/ ...iUr pod trul"",,,I . .. ~
~.f)j"",," is Iwiu,.

(Qur'ln: Al -Baqarah: 229) Allah also says:

"0 Prophet, ...hltn you {M uslilfU/ dim",,,, _m",". di~Mn th"'m for (the """''''etltenUllt of! Ihtir ..... mllK period .. ~
(Qur'An: I\1-Ial~: l) I.e. while they are in a ilate of majo r ritual purity provided no SCltual intercourse with them has t .ktn pl;\Ce.ln addition. when Ihe Prophet (PBUH) was informed. that a man had divorced. his wife with th ree pronouncements of divorce at I time. he (PBUH) wondered angrily:

"Is the Book of AlIllh made light ofwhilt IlIm IImongst you?!"'
Besides, . Umar IOOul Khant b (may AUah bf: pIea5ed with him) used tobe.t any man who divorced his wife thrice (alI lilM) if he was brought to him'. For m~ illuslration., when the Prophet (PBUH) was informoed Ihal . Abdulllh Ibn ' Umar (may Allah be pIeasN with him) divorced. his wife during r..,r menses, he (PBUH ) gOl angry Ind ordmd him 10 lake: her back'. All the previous proofs indicate (hat it is obligatory for every Muslim man to adhere to the legal ruling5 on divorce observIng both its number of pronouncements timing. A Musli m ha. al.., to avoid the prohibited way. of d ivorce whether concerning the number of tr.., pronooncemc nts of divorce o r it' liming. H~r, many IMn, ~tably. do not understand or carr about this nowadays,and. conseque ntly. they cause them~ dimculty and~, and then mey""'" solutions 10 get their wi~ hack.. di.5CCll1\flt;ng tr.., muftis whom they refer to. In fact. In .uch problems arc consequences of making light of the Book of Allah. EJ:a\ted be He.

aoo

."

VII, DIVORCE

Some men, unfortunately, ~ diYQIU as a wupon 1 threaten their wivn 0 with, forcing them to do somClhing or prn'C'nting them from doing anol\w; r.
Ot her men
h~dl essJy

USe divorce as an oalh wh ile dealing with or talking

to others. Such men mU51 rear Allah and keep away from uttering the oaths
of divo rce, fur diVOrce is not made 10 ~ u~ U an Oath, but to be rc$Ortcd to when ness.ary and according to the s.pedfied number and timing of the pronouncn.." nt of d iVO<"(c.

The Spoken Fonns of Divorce

There au two spoken forms of divorce: A- Direct pron ouncement: It indudes the word "divorce or any of its derivatives that indicate that the husband divorces hi. wife, and it <:wri". no other muning tlun divorce', such as uying to onc's wife, "[

divorc.. YOU,," or, You are dimrced," or, You ru.~ become a divorc." In such cases, the divoro: ~ ~ valid and dfcctive. Yr(, if the husband says something like, You a.., being divoocrd: or, "en your divora; and tM like, divora in such cases il invalid, as the spobn form dOQ nQl indicate its t!k<:1",",ess.
B- Indirect prono uncement: I1 induda melonymic words Ihat imply divorceas well as ol her mnn ings, such as s.aying to one's wife somtthing like, Y are free; ur, "Go and keep away from me; or, "Go back 1 ou 0 your parents," or, "There i5 no liability on your pari lownds ~ . bdwn direcl and indirect lpokm forms of diVOt is that divorce is valid ona the husb;r,nd uners any of the din:ct pronouncements. evm if jokingly or unintentionally. This is because tM Prophet (PBUH) $afJ: "There 1111' /hm ,hings which, whether .. nder/llbn wiuwly Of" in jNt, 11", trttmd lIS serious: divorre, mllrri(1.ge IInd llikjng bild: 11 wife (after 11'liOCabl. divorrt)." (1:1.11 by the fl~ CompileT$ of Had/II xcept An-Nod'l) is invalid in CI""of uttering any ofthe indirect metonymlc words of divorce, unless IM husband does inlend to divorce his wife, This it lxausr sw:h indirlKt melonymic words indiat., some meanings OI:her than divorce. ThUs. if the tlllSband does not mean to divorce his wife when unering such words., divorce is Invalid and indfedive, excq>! in th= (2StS: I) If M Utltrs thn.e words whfil there is a conlro~rsy brtWn him and his wife:
How~r, divorce

~ legal diffe:nce

21lfhe umrs (line worru whtn ht is angry;

3) lfhe utters these words in reply to his wife when she asks him to

divorce her. In the afO"'lD<'ntioned thl" ea~, divorce is & emed "'lid and dfective u fOOn u the husband utten such metonymic words, even ifht claim. that he has nOl intended divorce, for tkc state he is in shOWl lhe inlenlion of divorce. And. Allah knows best. It is pennissi\lle for IlK ht.LStnnd 10 daiglljte repTa(f\tatlvt 10 divolU hll wife whether the rqwesentative is a str.mgcr or even the wifto kcrself, as it Is permissible for the husband to authorize his wifto 10 divorce herself if she wantl. The authorized representative legally acts on beha lf of the husband, and thut the rulings on direct or indi...,c! pronouncement.! and the number and the timing of divorce are applied u if he ill the husband himj.elf, unless the husband restricts his representative to effect the divorce In I ce M n way. ai

OiYoroe is not valid unleu it is pronounced by the husband (or his jfpl etUlbtivr). ln otherwords, If the husband hasthc intmtion of diYora withoIJ; pronouncing it, divurcc is stiR ~ Invalid. The Ptop.'let (PBUH) says: /w.s forgiven m)' joilowtrstm evil thoughts tlult occur to Iheir minds, oU kmgll$ such thoughts are nO put into act/o" or ultcrtd.-' I
However, there are two ex~ptional ca~ in which divorce is valid even if the husband (or his rtpre.wntative) does not pronounce the SpoUll form of divorce. The lirst case is when the hw.boond writcsdown I (U'CI pronouncement of divorcing his wife provided hc does intend to dMllu her. Yet, scholars differ if he does not hi.vt the intention of diVQl"Ct by sIKh writing. but the majoriry of them '"' ol lhe opinion that divorce is abo valid in this auc. 11>c second case is when a dumb husbmd maJr.et an understandable gesture indiating divorce.
Concerning the number of th~ pronoun<Xments of divorce, it depends on whether the husband is a f~man or I slave, but it has noth ing to do with women; AU E:nltM be He, addreuel the Prophct and aU Muslim nvn saying: ab,
~11ah

"0 Proplld, wIo". )'O .. (/toIuollnu) aiwJr alVOml! 'Mm J {the ,,,mmmumnl' of) ,Mlr ....uti"g pmod... ~

wom"",

(Qur'ln: Ai-I al1q: l)

Allah o..Iso saY':

-And when ,... .. aivo":"

WOnltrl

'lnd 'lie), Iur~ f nurl)'] fulfilled

their krm .

(Qur"n: Al-B. qau h: 231)

".
Mo",ov~r,

VII: DIVORCE

the Prophet (PBUH) says:

"Divorce belongs only to the ont who tQkes hold of the leg (i,e. the husband)."'
A freeman is entitled \0 divorce his wife thr limes even if she is a slave, while a s!a~ man is entitled to divorce hi. wife only twiC<' """n if she is , {rce woman, Th ere i$ no dispute that if both the husband and wife a"" fr (Le. not slaves), the husband is entitled to divOICf his wife thre<: times, and if they
are slaves, the husband is entitled to divOIU his wife only twice. Yet, scholars differ when either the husband or the wire is free while the oth er is a slave. The preponderant view is that the number of the pronoufla:ment. of divorce is on.ly dependent on the state of the husband., as previously explained, ,ince divo= is essentially a right of the husband not the wife.

It is permissible for the husband to mah uceptions while divorcing hi' wife or wives. Such exceptions can be related to the number of the pronounaments of divorce, such as saying, "You are divorced thru times e:<cept one (Le. twia)." Lihwise, a man can exclude one of his wives while divorcing them, such as saying, ~I divorce all my wives e:<cept Htimah". However. the exduded thing must be half or less than half the general ttrrn. In other words. it is invalid to make the thing excepted more than the general term, such as saying to one's wife, "You are divorced three times except two (i.e. once)." Moreover, it is necessary to utter the exception when it umcerns the number of divorce. For uample, if the hu.band says to his wife, You are divorced three times.- white having the intention of excluding one time of divorce, it is deemed a threefold d ivorce. This is because the uttered number is considered a term that cannot be altered by a mere intention, since the spoken word is more reliabl e than the hidden intention, Nevertheless, it is permissible for the husband to exclude one of his wi"", by his mere intention while uttering the pronouncement of divorce. For e:<ample. if t he husband says, "My wives are divor",d," and he intends to make an exception of one of them, this exception is legally valid, though it is not verbally expressed . This is because the word! "my wives" can refer to all orsome of them, and thus the intention is a decisive criterion in this case. It is pennissible to mak", cond itions for divorce. For example, the husband un say to his wife. "If you enter the house, you will be divorced,~ making the divorce dependent on her entrance to the said house. The onty one permitted to make conditions in divorce is the husband. Thus. if a man says, "If] marry so and '0. [ will divorce her;"' and then he marries

Ch.p,,,, 3; s..~ni .nd Inoo ... i.< DiVUfC<

her, such a condition is J~med invalid, for the man was not htr husband when he made it This is due to the b.adllh narrated On the authority of' Amr lbn Shu'ayh, from his father and his grandfather u sptivdy, in which the Prophet (PBUH) says:

'"

"The son of Adam (Ad~m) should not m~h a vow about whM he d~ not posuss, or "I fret what he does not possess, or divorce what he does not PVSSfSS:'"
(Rd atffi by Ahmad, Abli D!wud, and At-Tirmidhi who de<:med it ahasan (good) hadrth) Allah, Enhed be He, says:

"0 YO" who have iH:lieved, when you marry bdievillg womell and thell divorce them ... ~ (Qur'!n: AIAhZ<lh: 49 )
This ve!lle and the aforementionffi hJu/ith indicate that a man's divorce: of an ajnabiyyah is invalid; thue is cons-;niUi on this ruling when it is a diu,t pronouncement of divorce, and it is "loo agreffi upon by the majority of scholars when it is a conditional pronouncement of divorce.

If the "husband" makes acondition for divorce, d ivorce is invalid unless the
condition is fulfilled. Further, oometimel; the hushand is uncertain about his utterance of the spoken form of divorce, the numbt rofthe pronouncements of divorce he has made. Or the ful fillment of the divorce conditions. If the husband is uncertain whether he has uttered the spoken form of divorce or not, divorce is deemed invalid, as marriage is a certain fact that cannot be nullified by a mere doubt. Likewise, divorce is invalid if the husband doubts the fulfillment of it. conditions. as when he says to his wife, "If you enter such and such a house, you will be divorced," and then he doubts whether she has en!Cud such a house or not, for marriage cannot be nullified due 10 mere uncertainty. On the other hand, if the husband is certain that he has divorced his wife but uncertain about the number of pronouncements of divorce he has made, it is only regarded as the one pronouncement of divorce which he i. certain about. Other pronouncements of divorce are nnt taken into consideration as they au still doubtful, and the general legal principle is that certainty cannot b.:: nullififfi by mere suspicion. This legal principle i. a general, dfe<:\ ive on e, d erived from some uadi/hs of the Prophet (l'BUH); he (PBUH) says:

uave that which make$ you doubt for that which does not make you dOU bt. "

..,
"Ht should not kaw 1Ii> prafD' ,,"Ius lie Iwm wurtd

VII: DIVORCE

The Prophet (PBUH) also said cOn(erning. man', urw;:ntainty whether be: had passed wind during pra)'tt or not:
Or'

smdIs

romt:u,;ng.""
an some ot"", I1ad;th~ con~yin8 the $lime meaning. Such ruli ngs Ind icate the leniency and perfection of Sharl 'ah ( Islamic Law ), SO all praise is due to Allah, Lord of the worlds.
~re

Endnotes
I s..~ 1ti: A<tordi"i ID t~ SwrIl4h (Prop/>cIic Tradition). 2 AMLayhaql ( I.91S) P /5321. 3 Ibn AbG Shaybah (1 1716) 14151] 4 AI-BukIU<I (5332) 1 915911. MPJiim (l63S) ISlJOll. Abo) DlorlId (2179) [1I43BI. Al..
Thmidh! (1 177) [lIH8 ). An-Nul' (3l99) (:lJ4SZ). lton Mt;ah (20 19) I2I'iOOJ. 5 An Nun (:HOI) (114S1]. 6 IboI.IJ>jI Shaybah (I77IU) 14191].

1 Mull;'" ( J642) ]513(16). 8 AJ-Sukhlrl (S2ii9J [91(81 ) and Mu5lim ()la) [1m3) . 9 Ibn Mijah (2081) IlI5321 I nd Ad -Oaraqutnl (3~) 14/241.
10 AI T1rmldh! (lIB) [3/4861 . nd loo MlJ ah (]1)oI7) 1:1.151 4).

11 AI T1rmidhl (252)) (4/1>68]. 12 AI Bukhtrl (l l7) ! 1/31 2) , and Mutlirn (802) 1111121.

CHAPTER

Taking Back One's Divorced Wife (Raj'ah)

Taking back ont's revocably divorced wi fe during her waiting pe riod
without a new marriage contract ;. permiss ible according to the Quran, the

Sunnah (Prophetic Tradition), and the consensus of Muslim scholars.

Concerning the proof of its legality from the Noble
Qur'~n,

Allah. Exalted

be He. JaYS:
haw mort right to tab t"tm back In this [perlod1 if they ",.."t ru" ..dliati" ... ..
M

~.. And thtlrhusfNmd,

(Qur'1n: AI -Baqarah: 228)

Allah also $11)'5'

Di,,01'c, Is twi,.., Then [..fin th"t}, t ither kup [herl;" an Qcuptablt manner or reletut [her} with good matmtnt...
M

(Qur'~,

Al-Baqarah: 229)

VI!: DIVORCE Moreover, Allah, Exalted be He, says:

~And when thq havt tneaTly/ fulfilled thtir ttrm, titht~ rtlta/n them according 10 occeptable term. ar part with them <u:cording 10 acceptabk lern:l .." (Qur'1n: At Ial1q: 2)

As for lhe Sum"ah, lhe divorced his wife:

Proph~ t

(PBUH) said aooutlbn 'Umar when

h~

"Order him to tab her baek."'

Moreover, he (PBUH) divorced. his wife Haf~ah and then took her back'. Regarding the consensus of scholars On the legality of taking one'. divorced wife back, Ibnul~Mundhir said:

Scholm'$ unanimously agree that taking back ones wift during her waitjngperiad is permi$Sib/e for the freeman who /UlS made 1= than three pronouncements of dillOrce (011 his wift), and for the man who has made Ius than two pronouncements ofdjllOrce,'

.Ia",

The wisdom behind the legality of taking one's divorced wife back is that it
is a chan~ for the husband ifh~ regrets divorcing her and wants to maintain the marilallife with her again, and this i. a kind of divine mercy bestowed by Allah u]Xln His servants.

There are some conditions for the validity of taking back one's divorced wife:
1) The number of pronouncements of divorc~ made by the husband must be I... than thr~ ifhe is a f""'man and le.. than two ifhe is a slave. If the

husband has already used up his lawful number of pronouncements of divorce, his exwife becomes unmarriag~ablc to him until she marries and separates from another man.
2) The divorce mllSt be after the consummation of marriage (Le. having

S(:xual intercourse). If lhe husband divorces his wife before having S(:xual intercourse with her, h. cannot lake her back, for .he has no waiting period in this caS(:. Allah, Exalted be He, says:

"0 you who havt b. U.v.d, ...h. n you marry IHUeving wom.n alld rhm dlWJrc. IMm ""for. you luwe touched th.m [I.t., consumrrwted the nuuriap], th. " Iherds not for Y<'" any_itlns period ta co .. ,., conctrning Im,m. So provide for them alld give Ih. m agraaou. reltll.e." (Qur'An: AIA,hub, 49)

.,
3) The divorce must not be in return fur a comptm,ation given tl> the husband. If th e wife pays comp.!nsMion to hu husband to gd divorced, she becom es unlawful to him to take back unless with a new marriage contract and with her consent. This is because she ranwms herself

by paying compensation 10 her husband to separate from him, and taking her back in this case contradicts her purpose in paying him
such comptnsation.

4) Marriage must be originally va lid. If the husband divorce, his wife during an invalid marriage, he cannot take her back a~ she beco mes irTn'ocable for him by divorce. 5) The husband must la"" hi' wife back during her waiting period, for Allah, Exalted be He, says:

", . And

th~ir

hU$l>ands ha"" mn.... right to tau them ""ek ill

( Qur'~n,

this rptriodl ...~

AI -Baqarah: 228)

6) The husband's taking back of his wift must not (,., conditional. For t xample, it is invalid for a husband to say to his ex-wift, "If such and such happens, I will take you hack," Scholar. d iffer On whether it i. a condition for tht validity of returning one's ex-wife that each of the separated couple intend, ,",conciliation. Some scholars maintain that it is a condition th at must be fulfilled, for Allah, Exalted (,., Ht, ""y' in this regard;

", if they "'<lnt reconciliation ,"

(Qur'an: AI -Baqamh: 228)

ShaykhuJ.Ish\m Ibn Taymiyah (may Allah have mercy on him) said :

"The husband is nol perrnilled 1 lake back his ...ife during her waiting 0 period unle" he intends rrxonciliation and wants 10 keep her in an acuplable manner,"'
Some other scholar. are ofthe opinion that the intention of ,",conciliation is not a condition for the validity of taking back one', ex- wife. They argue that tht afo,.,mentioned noble ver ..,. -. .. if thq ",a"t reconciliation ...-, only call, th em to !'e<:oncile and keep away from hurting one another, but it d~ not mean that reconciliation is a condition. Yd, th e first opinion is the preponderant; and Allah knows best. The legal spoken form pronounced by th e husband to ta ke back hi. revocable ex-wife can be through any proper words indicating that purpose, mma.saying, "' take my wife back," or, "' ,.,turn to my w ife," or the like. Taking

vu: DIVORCE
back one's revocable exwife can also be valid by having sexual interr:ou= with her with the intention of taking her back according to the preponderant vi ew in this rrgard If the husband take, his revocable ",,wife back, it is an .ct of the SUHHuh to bring some ~ople as witnesses; some scholars say that it is obligatory, as Allah, Exalted. he He, says:
~.. And

,"inK to witneu two just meH from among Y<' .....~

(QuTan: AJlahiq: 2)

And the latter is one o f the opinions attributed to ImAm Ahmad. MO",over, Sheikh Ta'liyyuddin (may Allah han mercy on him) said, 'It is by all means invalid for the husband to take his .... V<X<lble exwife back secretly."' The revocably divorced woman is Irgally considell'd a wife of her hll.5band ~riod . The refo"" her husband must provide for her and afford her clothing and accommodation. On the other hand, the revocable exwife has the same duties of any wife; she has to stay at her husband's house and beautify he=lf so that he may take her back. If any of the ~pant ed couple dies during the waiting period, the other is entitled to inherit from himlher. In addition, it i. permi.. ible for the man to travel with his revocably divorced wife. to he aloM with her, and to have sexual intercou= with her with the intention of taking her back.

as long as she i. still in her waiting

The end of the wait ing period is the dndline for taking one's revocable "". wife back. Thus, if she hecomes pure after her third menstruation period after the divorce, the waiting period is deemed. over, and she be<:omes unlawful to him unless he ~marries her with a new marriage contract, the consent of her guardian, and the presence of two just witnesses. Allah, Exalted he He, says:

"; And their husbGnds ha...., more right to take them !Pack In this [priodJ ...~ (Qur'an: AI Baqarah: 228)
The meaning of this ""rse is that when the waiting period i. over, the revocable ex wife hecome. unlawful to her exhusband unless he remarries her with a new marriage contract, fulfilling its conditions. If the husband take. her back during her waiting period. m~ting the legal condition~ the permissible numher of pronouncements of divorce for him become. one le .. than hefore. When the husband llSI:s up the permissible number of pronouncements of divorce, i.e. wh en he divorces his wife for the third time, me hccomes unlawful for him to marry unless she lawfully marrie. and separates from another man. There a", thr~ conditions to make such an """wife lawful to her first husband:

1) She must marry another man

2) Her marriage to the other man must be legal

3) The second husband must have s.exual intercourse with her

This is because Allah, Exalted be He. says: ':And ifhehasdivorcw her {fart~ third Nmej, thell she /$lIOt lawful to him afterward .mm {ajUr} .he marria a husband other than him. And if he {i.e. the latter husblmdl dlvorcu her, t~re i, lIa blame UpOIl 'hem [I.e. the woman and her

former husband] for returning ta each other if they thillk that they call kup {within] the limits of Allah ...~
(Qur'~n:

AIBaqarah: 230)

The great Muslim scholar Ibnul-Qayyim (may Allah have m ercy on him) said:

"It i5 wnsidered on e of the greatest favors bestowed upon Muslims Ihal Ihe irnvocablt ex wife becomes lawful to her first husband after she marri", and then separates from another man. The low of the Tomh permits the divorrtd WOman to ",marry her husband if sh e does not marry another man whereas Ihe law of tht Gospel ab.iOlutd y prohibits divorce. However. our Shtlri"ah (Isklmic Law) is mo", perfect, comprehe".ive, and suitable for the interests of /'tople; Islam permits the M uslim man to marry four women. and to have as many slave women as he likes. Morwver, Ihe Muslim man can divorce his wife and Ihen, ifhe longsftr her. ht is permitted to take her back. Yet, if h e divorc .. her for Ihe third time, it becomes prohibited for him to lake her back unle55 she legally marries and stparales fmm another ma n: '
This means that the se<:ond man must be willing to take her as a wife, not to marry her and then separates from her to make her lawful to the first husband; ifhe does so. he is considered a borrowed billy goat, as referred to by the Prophet (PBUH). In additio n, such a false marriage is invalid, and it do es not make the woman lawful to the first husband. And. Allah knows best.

VII: DIVORCE

Endnotes
1 AI-Bukhbl (5251)
[9I~29 [

and Muslim (3637) [5/302[.

2 AM Nwad (2283) (2/4931, AnN.st1 (lW) [3/523) and Ibn MAjah (2016) [2/499). 3 Se<::-AI.ljmd- (p. 126). 4 See the foo tnol<: in - A"RoWli .-\IMum' (616021. S See: AIlkhliJdI"llI (p. 392 ]. 6 Se<:: -' Mm AI_M"""Ii 'n- (2192) .

CHAPTER
,
h'h

,
,

fIn' (Foreswearing One's Wife More

Than Four Months)
fuqillS dd'ine fM ' as the potent husha "d's swcaring, by Allah or one of His Allriliut.., not 10 ha"" ""xua] intercou",~ wilh his wife forever or fo r a period of more tha" four month" . Th is dd initioIl implies th.t the CaSe is not regarded as iltl' (whi(h is prohibitffi in Islam) unless the following conditions are [litre:

I ) The husband is potent

2) The husband swears by Allah or one of His Att ribut es. not by divorce.
en1andp;otio n, OT vow.

3) The husband ,wears that he will not have a legal sexual intercou rse wit h his wife (i ,e. in the vagina).
4 ) Th" husband swears not to have a Ie!;al sex ual intercourse wit h h is wife ror nlQ,e than fOllr months.

5) The wife is fit for havi ng sex ual inu rcou~,

'"

VII, DIVORCE

If all the aforemenliomd conditions are IMre, the husband is l~ly U'8arded IS committing /lit', and thus the rulings on rill' apply 10 him. Ho~, If one of these conditions is missing. the caK is not consider~ 114'. T/A' i. mentione<! in the Noble Qur'An, u Allah, Exalted be He, says:

"J'()r 'hose "'ha .WN, to ,",VI! UXIUII re/at/OM with ,/wi, w/vu u " .wdtllll tilnt of four ,"OII,n., &ut 1/ they 1Yhlm
1'0 IIoOmwIi rdiUlo/U} - thm InIlUJI, "UIIII Is Fotflrlnf4ln4 MtrdfoL AIId I/'My ditk on divoru - the,,/ndd, ....."..,. 11 Hearilrgllnd IVtowilll.(Qur1n: AIBaqarwh: 226-227)

nD'

The meaning of these two ~ is that [ftht husband, who swean not to

have sexual intercollrst with his wife, for more than four months, insists on nOI having sexual intercourst with hcr after the four months. he is to be ordered to (Imf back to nannalluual relation wi th hcr and txpiate for his "'"-14 OtJt.etwise, he must be legaUy ordered to divorce her If she dcmancb divorce.
This Islamic wise and Just ruling removes IIw hann IUId inju~tke ClUKd to women and nullifies what some men UKd 10 do in the Prelslamic Pt.riod of lsnonn~ (the 16hiliYJll>II), whn> they used to prolong the period of lid'.

11A' for moll' than four months is p<Vhibil~ in blam, u it is III oath of
abandoniog a marilal obliption. As indicated in the general meaning of the afor.. mentioned verses.. the husband i.I not considered to rn.ve forsworn his wife unle$$ he (In validly divorce her, whether he i.I a Muslim, a disbeliever, freeman, a slave, an adull, or a p"rcipient child (who will be legally ordered, when he rcacha pubfrty, either to IYve normal (setl,lal) relation wilh his wife or 10 divorce her). The ,l,Iling on ild'is abo appl i~d ev.:n if tht husband made it when angry, or while 5l,1rrering from. curable disease. Morewer, iI4: ...... in& I1 also applied even if th~ marria~ is not yet consl,Immatw (Le. the m. rritd eouple ....ve nol had stXl,Ial int ....co~ yet). However, the hl,lsband iJ not <;considered to have forsworn having stXl,Ia l ioterrourst his wife if he i. iou ne or utlcon Kious, in wh ich casei man i. unaware of what he I1 saying and Ihe intention if lacking. In addition, the cast il not regarded as lld' if the hlJ.5band is impotent, Iuch as a castrated 0' I paralytic, for his oath iJ not the only reason for his abandonment ofhaving stXl,Ia! intm:ourse wilh his wife.
1be case is also deoemed ".I' if the husband ~I"I by Allah that he will not have stX\I.Il intercourse with his wife foreveT, or for a period more than four month.!., or wMn he stipulates something \llIeJ.pKled to Imppen before four months.. such M the Advent of Jesus Christ, the son of Mary (PBU H),

a.apter 5: !U'(Fo=wcuing Ono', Wi!i:

MOf<

'lhan Four Mon,,,")

Or the coming out of the Antichrist. likewise, the case is considered ,W' if the husband make. a condition that his wife must commit a prohibited deed or leave an obligation, For example, he may say to her, -I .wear by Allah that I will not have sexual intercourse with you until you abandon performing prayer (or drink wine, etc.)," This is because he stipulate. what i. legally forbidden, which is similar to th e case of stipulating something impossible to happen. In all the previous cas~, the period of ild'must not exceed four months, as Allah, Exalted be H e, says: "For tlwse who ,weo. not to have sexwal ,..,Iotio", with their ""vu u " .....Wng time offour mo"ths...~ (Qur'An: AI-Baqarah: 226)
It is related in ~hlh AIBukh<lr! (AI-Bukhtlris Authentic Book of Hodith) thallbn 'Umar (may Allah be pleased with him) said:

"When the four mc>nths art over, the hUJband must be legally ordered either to giy e up 114' (i,e, ta hove narmal sexulll relation with his wife) Or to climr'Ce her. still, divorce is not effected unless the husband makes its pronouncement:'
The same ruling was related by Al Bukh~ri on the authority of more than ten Companions',

Sulaym:ln Ibn Yas!r said:

"I was a contemporary of more than ten of the Cc>mpilnions of the Mrnenger of AUoh (PBUH) and all of them were of the opinion that when the four months are over, th~ husband must be legally ordered tither to give up ild' or to dillorct ht~"'
This is aloo the opinion of the majority of Muslim schola" and the apparent meaning of the aforementioned Qur'anic verses, The days of menstruation are not legally included in the four months of lld', If the husband h .. sexual intercourse with his wife after this period is over, he is considered to have returned to normal marital lift with his wife, as having sexual intercourse is a sign of returning to normal martial life, Ibnul Mundhir said, "As f~' ~s I ~m concerned, all5Cholars unanimously agrte that the returning to oneS wife (after flJ') means h~ving sexual intercourse with her."' Thus, the WOman regains her marital right (rom her husMnd.

vu: DIVORCE
If the four month~ are over and the husband still rdu~s to have sexual intercourse with his wife, he must be forced by the judge to divorce her, provided it i~ the wife's wish, This is becaus.e Allah, Exalted be He, ~ays:
"And If they decld" on divorce - then ,ndud, Allah ,. H"ar;ng and K"()wi"g.~ (Qur'an: AI -Baqarah: 227)

Howeve r, if such a hu~band still refuses ei ther to have normal sexual relation with his wife or to divorce her, the judge divorces her or cancels the marriage contract, as the judge i~ legally considered the husband's guardian in this case, so he is entitled to divorce her On behalf of the husband.
Faqlhs apply the same ruling~ to thos.e men who inexcusably and harmfully abandon having ~xual intercourse with their wives for more than four months, evm if without forswearing. The same applies in case of vhdr for a period that exceeds four months after which the husband still refuses to expiate for it. These two cases have the same ruling on IM', as husbands in both cases abstain from having sex with their wives, causing them harm. And Allah, Exalted be He, knows best.

It may happen that the four months of lid' are over while any of the spou~s has a certain excus.e that makes him/her unable to have ~xual intercourse as a sign of returning to normal marital life. In such a case, scholars maintain that the husband must be legally ordered 10 remrn to his wife by sayin g something indicating returning to normal.exual relation wi th One anoth~r, such as saying, "I will have sexual intercour~ with you once I can.~ This is because the main purpose of returning to on t's wife is giving up the intention of harming her (through i/a). Such a statement m.ad~ by the husband indicates his inttntion not to harm his wife (by illl,) any more. Afterwards, when he becomes able to have sexual int~rcourse, he has either to have sexual intercourse with hi. wife or to divorce her, as th e excu~ for not having sexual intercour~ is no longer there; and Allah knows best.

Endnotes
t AIBukh1r1 (5291) [91 5261. 2 AI-Bukhlrl (9/526). 3 Ad -Dariqulni (3996) [4/331 OIld Al. llayh.qt (15207) [716 t 81. 4 Stt th. foolrIOt<' in Ar.RlIwd .... 1Mu.-/li [616241 .

CHAPTER

Zihar
Zih"r is the saying by a hmband IQhis wiff, when he wanls to abstain from I)aviol stX with her. "(Sexually,) you ilK 10 me like the back of my moilirr.Sometimes the husband likens his wife le hil siller or any woman prohibited

for him du.e 1 blood relations, brustfeeding. or ut.tjons by marriage, il1Slead 0 of saying - my mOlher': whik pronouncing ~h"r. ZihAr is prohibited according 10 theQur'ln, a5 Allah, Exalted be He. says:
"Thou """,, pro .." .. ,," the iihAr IImo"I "",, {Io u fHI ....tt1 fro ... their ",Ivu _ rhq ore 1101 {>nSfij",,,,lyl their mo/hen. Tht/. molM" ",." lIollt bullhQU w"o guI'C' blr'" to 'hem. And '''dud, ,h, y Ilruoylng all objtctl,mable 1IIII, m ' III and .. joIJtlrood ..
,H

(Qur'~n:

A)Muji dila h, 2)

The mean ing iI that those men, who pronounce ~ihAr. say grievous and faIR wonh thallhe Sharf"aJr (Islamic Law) disapproves of. Such words an

'"

VII: DIVORCE

men lia and objcctklllable statements lhal arc ddinitdy prohibited, for sw:h a man prohibits for hi~lf what Allah has nol proh ibi ted (or him, making his wife sex ually prohibited for himself u if she is his mother. though she is nol.

Zihtlr wall considered a kind of divorce durlng the Pre- Islamic Period of Ignorance (the }dhiliYY"h), but afterwards Islam repudiated it and consilkred it an oath m{uiring npiation. Thus. tht man who pronouncG zUt4r and his wife ~ prohibited 10 enjoy one another by having sexual intercourx or enn foKplay until tbe husNnd expialn his pronouncetmnt of ziMr. This il

because Allah. Eulted be He, ~ys:

~Alld

thou who pronou"c. pM. from IMfr wiYu ""d thm

{wWo m] go luuk 011 wIIlll they,.,UI . the .. {IMU mu" Nj 'he

furin, of <I .JaW! be/ou they touch Ollt ""otker...~ (Qur'ln: A] MujAdilah: 3)

Moreover, the Pmpbd (PBUH) said 10 a man who pronounced rJhArfrom his wife:

for it),'

"Then do not lIpprotlch " " (i.e. do lIof Iuwe inltm1U1K with her) until you do what Allah ordmd you to do (i.t. un til you apialt

(Related by At -Ti rmidhl who deemed it I 1<Iblh had/rh)

So. the man who pronounces i,ih~r from hii wife must expiate his :.ihdr first if he wants to have JauaJ intercourse with her, for Allah, Exalted be He, nY"
~ ..Ihar

frMn "'.." be} ,~jrfrit, of" d40 befon tMy towlI

OIIe _Ilter. 1"11.11 is ""'at ,...... n 1UI", .".Q4QI aNI Allah u AC'l"",,,,ftI wit" w#tat,.... dOl. AltJ IN who don Mt fiNl

' 'erWy;

(.. si4Yf1J -

to,,," o.u""olhrr.. :

"It" "fallfor two "'0111111 ",nsu..,inl, bel<- Ihq

(Q ur'An: A!. Mujldilah: 3-4)

Th..e two nobl . verJe5 Indicate that it is obligatory for the husband who has pronounud liMr to expiate for it before bavinS sexual Intercourse with hi, wife,and that his wife is prohibited for him until he expiates his pronouncement of i,iMr. This is the opinion of the majority of the Kholars in this rqard

To expiate hill pronouncanent of lilt4r, the h usband must follow thoe sequence of expillions mentioned in the af~mentloncd verses. He mUft flft &Iave if pos3iblc-; oth.~. he must observe fUling for two month..! (()n$(:cutively, and If he Qll\not d"" to an illneu or the like, th e last alternative for him ill to feed sixty poor pe rj,()I\~. Allah, Exalted be He. says:

Ch.p .... 6: ZlhJr

thou who proltounce Pho:l~ from their wivu .md /h"1t (wim to] go bild; On what thty said - thtll [then m~1 bt] tht freeing of a skw.. ~fort! tht)' touch Ont ano/h~. That is ""'lit yo:u art! adtmmlmtd tMrdry; ami AIWI is AUfUl'iltttd with whtlt yo .. do. And ht who doa 1I0tfind {asl4.,..] -/htll afanfo~ two month. collucutivtly befort! th,y toud! Ollt altother; and ht who is ......bIt - thtll the fudi"g of siKty poor PtrsOIlS. ~
~AmI

(Qur'm: Al- Muj~ilah; 3-4) In the aforementioned verses, AUah states that "/ho.e who prolloullct pho:l, from their wjvn~ and then regret it and wish to return to normal ~xual relations with them have to expiate for their pronouncement of ;:iltdr "btfof"t they touch. 0"" lIowthtr" Such expiation can be one of thf"te things:

1- Emancipation of a Slave
The expiation of z.jMr can be through 7ndllg of a .1.",t if the husband has any, or able to afford to buy one with his surplus money (that i.'! not net<lt<l 10 meet his essential net<ls and the needs ofthas<: whom he supports).
H

The slave to be freed must be a believer. as Allah .tipulates a believing slave for the expiation prescrih<.d for manslaughter: Allah, Exalted be He, says:
". And whMwr Idlb .. btlitwr by mista" - thtn the freeillg of/l bdltvillg sl/lw .. (Qur'm: An -NisA': 92)
H

Thus, according to analogical dt<luction, the slave to be freed in expiation for phdr must be a believer as well, for the unrestricted ruling prevail. over the restricted similar one. Alro. the slave to be freed in expiation for z.iMr must be free of any defect that badly affects his/her ability to work, for the emancipation is intended to free the slave and enable him/her to earn his/her living. This cannot be achieved if the .lave is .fflictt<l with a defect that badly affects bis/her ability to work, such as blindntSl, paralysis, and the like.

2- Fasting for Two Successive Months

There are three conditions for the validity of expiating ziMr through fasting:
1) Th e husband must be unable to free a slave.

2) Th .. husband must observe fasting for two consecutive months. during which he is prohibited to interrupt his futing except for an obligatory fasting. like fasting the month of Rama.din. It is also prohibited to

VII, DIVORCE

interrupt tho", two months of fa~ting except for an obligatory breaking offasting,lik/, that on the days of the Two 'Ids (Feasts) and on the Days of Tashriq (11 ", \2'" and 13" of Dhul -Hijjah; the th .,., days following the Day of Sacrifice), Fast ing tho'" two months can also he interrupted if there is a legal excuse, such as an exhausting journey Or an illnus. Breaking the fast due to either of th e above reasons is not an interruption of the conse.:utive two-month fasting in expiation for "iMr. 3) The hwband must have the intention of pnformi ng expiatory fuling for "fM, at the night pre<:eJing his fasting day.

3- Feeding Sixty Poor Persons

There are thru condit ions for the validity of expiating feeding sixty poor perS<lnS:
~iMr

through

I) The husband must he unable to ob",rve the expiatory fasting.

2) The poor person to he fed must he a fI'<'e Muslim entitled to receive M6.h. 3) The amount to he give n to the poor p"rso n must not he (ess than one mudd (a standard measure that equals 543 grams) of wheat or half a &I' (a standard meaSUI'<' that rquals 2172 grams) of any other ceI'<'als, In general. intention is a main condition for th e validity of any expiation, for the ?rophet (PBUH) said, Verily. (the correctness and rewards of) deeds dqlend upon intentions, and every person gets but whM he has inttnded.~ Bes ides the Qur'anic proof, there is another proof stated in the Sunnah (Prophetic Tradition) illustrating the legal ways of expiating for "ih.tr and their priority order. It is a hadith narrat ed by Khawlah Bint Mdlik Ibn Tha'labah (may Allah he pleased with her) who said: "My husband, Aws IbHulS.6.mit. pronounced " ihdr from m~. so 1 went 10 Ihe Messenger of Al'ah (PBUH) to complain to him. Th e Messtnger of Allah (PBUH) disagreed with me abaut him ( iot. her hwband) and said, 'F~ar Allah, for h. (i, . her husband) is )'<Jur (ousin: He (PBUH) kept disagreeing with me until the following Qur,mic verse was revealed: 'Urtainly ha. Allah Iwlrd the spuch of thl OM who argues (i.t., plelldJ) with )'<JU, (0 MuI!wJllnod),

c,mcerning her hcuband..: (Qur'an: 58: I) The Prophet (PBUH) th . n said, 'He $hould emanci~le a $lavt then: 1 said, 'He cannot affGTd it: He said, 'Then he shouldf~st for two roMS<'cu/;~e momh~: 1 ,aid, '0 Messenger of Allah! He is an old man; he ,an not observe justing: He (PBUH) s~id, Then he should f u d sixty poor people: 1 said, 'He hus nothing which he may givt in charity: He (PBUH) said, '1 shall help him with a basket ofdMes: 1said, '1 shall help him with another basket of dntes: The Prophet (PBUH) said, 'That is 8000 o/you. Go and/ted sixtypoor ~ople on his behalf. and return to your cousin.' . l
(Related by Abl'l Dawl'ld) As we s<:e, our great religion, Islam, offe.. oolutions for all kinds of problems including marital OneS. As shown a~, Islam has oolved the problem of the phM that used to be a dilemma duriug the Pre Islamic Period of Ignorance (th e Jdhiliyyah), wheu prople had to separate the married couple as a solutiou, causing their family breakup. What a g,..,at ,..,!igion Islam;'! In addi.lion. our religion, wheu ordaining the expiation for ;ihdr, gently considers the conditions of the husband, and thus the husband can frte a slave. observe fasting, or fu d p<>e>r people, according to his ability; all praise be to Allah for th at.

Endnote.s
1 AbO Dlwtld (2221) \11462] , AtTIrmidhi ( 1202) (3/5031, An N l1 (.J.457) /31479]. ""d Ilm Mljah (2065) [215Hj. 2 AM Dlwl'ld (21460).

CHAPTER

Li 'an (Allegation of Adultery Sworn against One's Wife)

Allah. Exalted be He, prohibits Muslims to fa lsely accuse the it1nocent people of adultery, and He th ~at. n' those comm itting such a 'in wit h .,cvell' punishment All ah, Exalted be He, say"
thou who [falo. 'yl aceu.echo. te, unaw",..,,,,,d believing wom,,".,re cursed in tllis world .alld the Hltntlfter: and they will hay. a gnat prmishm . n', 0" a /Jay whm thdr tongutJ, their hand. "nd their fed will bear witntss agailllt them ,,. la what they "",d to do. That D">I Alia', will 1'''y them infull their true (Lt., dt.trvtdj rtC<I"'pMSt, "mllhty wil/ kn"w that it ;. AlI.. h Who i. the M,miftst Truth (i.t., Perfect jn j ... tiul.~
~llldetd,

(Qurln: An -Nu r: 23-25)

VII, DIVORCE

Morto""r, Allah ru.. ordained Ibal whoever accuses a Muslim of adultery or fornication without producing four witnesses must be punished with eighty lashes and considered a defiantly disobedient person unless he ~pcnts after that and corrects himself. Allah, Exalted be He, says,
-And tlwse who a(cu,e chalu womtll and thtll do 1101 product four ",itnuses - lash them eighty IA$hu tuld do not ""tpl from them te.rinwny ever "fier. And thoot " N! the defitultly diS<>ln:ditn.t. Exctpt f(JT thoH who rtipmt "fter th"t ",u! correct Ihemulves. For. indud, A/I"II i, FQrgiving "lid Merciful."

(Qur'an: An-Nll.r: 45) The afo ,<, mentioned ver",s show the stern punishment and ruling applied wh en a Muslim accuses a woman other than his wife of adultery. However, when a Muslim man acc~s his own wife with adultery, there is another ruling to be applied called the li "". [;'<In is four testimonies ensured by sworn oaths taken by each spouse, and accompanied by the curse or wrath of Allah upon the liar, as will soon be explained. If a man charges h is wife with adulte ry and cannot produ ce dear evidence (through witnes""sj,U''!n can spare him the legal punishment for the false accusation of adultery. Allah. Exalted be He, says:
-And th"ot w/w "CCIlU their wiveo ["f adultery] tmd havt 110 witntntl exctpt themselves - tht n ,'''' wilnus at on, "/ them [shall be) four tuti",,,niu (swt"rillg) by A/I"h Ih"l imfud, he Is of tlu: tns.thful. And Iht fifth [lNlth will bel tJw.t the curse o! Allah be upon him ifhe .hould be among the liars. But it will prtVtIIt punishment from her if .he gives four te.rimonie. [.wearing] by A/I"h th<lt imfud, "., is "f the /i"rs. And Ihe fifth [oath will be) that the wrath of Allah be "pon her ifhe was of the truthful.M
(Qur'~:

AnNo.r: 6-9)

Th"". th~ husband says four tim~s . , testify by Allah that my wif~ has committed adultery. He must p"int at his wife if she is p~sent, or m ~ntion her name if she is absent. In the fifth testimony, he says the S3me but he adds. ... and may the curse of Allah be upon me if I am lying." In reply and def~nse, the wife says four times, "I t~stify by Allah th~t he is lying about the adultery h. has charged me with." In the fifth testimony, she .ays the same but she adds, ".. .and may the wrath of Allah be upon me ifhe is telling the truth." This is because the on e who knows the t ruth and denie. it incurs the "wrath- of Allah.

o.,pt<r 7: U

',jR

(A11cfuion of Aduh<ry Sworn

~g:ti,",[

0",,', Wife)

Th..e ,,-re some conditions for the validity of ".. an : The two spouses are legally accountable. The husband charges his wife with adultery. The wife keeps on refuting him and charging him with lying until the endofli'4n. The U'dn is conducted by a judge. Ifthe case ofli'dn meets all the aforementioned conditions and is made in the aforementioned way, it results in the following legal rulings:
I) The husband becomes no longer liable to be pun ished for false accusa-

tion of adultery. 2) The couple must beseparated, and the wife be<.:omes prohibited for the husband to remarry forever. 3) Her child will no longer bear th e name of the husband if the latter denies the child during Ii'dn by uying, "This child is not mine,~ The husband resorts 10 /i'an if he sees his wife committing adultery but he cannot produce evidence, or if he hilsstrong presumptions that his wife commits adultery, as when he sees a wicked man notorious for dissolution secrctlyvisiting her, Therefore, there is a legal wisdom behind the pr=ription of Ii 'an; namely that it spares the husband the disgract and shame of his wife's adultery, the painful marital life with her, and the paternity of a child who is not his. The husband cannot often produce the evidence of his wife's adultery, and his wife d""s not often confess her cri me. Accordingly, since the husbands accusation cannot be accepted without evidence, the only legal solution is public imprecation through strong oaths taken by the spouses, Thus, the pre&eription of the li 'dn solves the problem of such a husband and relieves him from any discomfort. Since the husband has no witness against his wife but himself, the wife i5 legally entitled to oppose his testimonies by equivalent repeated testimonies to avert th e punishment. If the husband refrains from swearing the allegation of adultery against his wife in the way mentioned a~, he is to suffer the legal punishment for false accusation, Likewi se, if she refuses to s....ear by Allah that he is telling lies in the way previously pointed out, his testimonies a", considered irrefutable evidence ofher sin. In this regard, Ibnul-Qayyim said:

"Thi. ruling on li'an accords with the legal proofs. According to

Iit!' Mdlikr, Shdfi 'I, and lianbaJi &hoo~

A.'l

well AS other.!, the wife

'"'

VI!: DI VORCE

must sujf" the legal pun;shmmt for adultery if she refusa 10 swear (her husband is lying about her committing adultery); this is the sound opinion, as it is the opinion indiUlled in the Noble Qudln. It;s alro the opinion maintained by ShaykhuI.lsMm l/m TaymiYllh and others:'

Ae<.:orrling 10 th~ Sunnah {Prophd ic Tradition}, th~ proof of th~ legality of resorting 10 Jj '<l" when ne<:essary is the aadrth related by Al-BukMrl and Muslim on the authority of Ibn 'Urn."

Ibn 'Umar (may Allak be pleased with him) was asked if there should be separatiQn between the two spouses in case of
~Whw

11 'dn, he said, 'Glorified be Allah. yes. The fir.! one who asked (the Prophet) about it was so ,md SQ. He said. '0 Messenger of Ai/oh! If one of us finds his wife committing adultery, wkot should he do? If he talks, that is something great, and if he keeps silent, that is also something great: The Prophet (PBUH) kept quiet and did not answer him. After some time, he (that very person) Cam e to him (the Prophet) and said, '/ have been involved in that very . ase about which / had a5ked you: Allah, Almighty and EverMajestic be He, then revealed the verses (regarding the ruling on li .<In) of the Sura of An-Nar (the Light), :.tnd those who accuse their wives (of adultery}, ..' (Qur'~n: AnNilr: 6) Thereupon . he (the Prophet) recited them to him. admonished him. exhorted him, and informed him that the torment of the world is less painful than that of the Hereafter. He (the man) said. 'No, by Him Who sent you with Truth as Pr{Jphrt, 1 havr n{Jt told a lie against hfr: He (the Pr{Jphet) then ClCll/ed her (th e mans wife). admonished her, exhorted her, and informed her thalth. tormenl of this world is less painful than Ihat of the Hereafter. Sh e said, 'No. by Him Who sent you with Truth as Prophe(, he is a liar: The Prophet started with th e man and made him swear and the man swore four lesl;monieJ (swearing) by Allah that indud he was speaking Ihe truth . and hisftflh (oath) was that the curse ofAllah be upon him ifh. was /e/Jinga lie. Then the woman was summoned and she gave four testimonies (swearing) by Alklh that indeed he (her husband)

o...p"" 7: uh (All<g><ion of Aduh.ry Sworn "eiM 0",,', Wif"c:)

."

was u.liar; and her fifth (oath) W./IS that the wrath of Allah bt upon her if he was speaking the truth. He (the Prophet) then effut ed separation between the two:'

Endnotes
1 Se., "ZM,,{Ma tu!" (-tl95) and AI-lkhrjJ'1'rdr [po 345]. 2 AIBuU.W (no. 5311. 5312) ond Mu.slim (no. 1(93).

CHAPTER

Establishing Paternity
If a man. wif~ or IMmdmaid givu birth to . child, the man il consider~ to tit his {atht< when lhen: is a pouibility that the child could bt hi$. as who:n th( woman is living with him as his wife. This is brausr t~ Prophd (PRUH) said,

"The child ~loJ1gs masttr):'

10 a certai n man:

/0

tlte OWll t r aftht bM (i.t. rh" husband

(I'

the

There are thr"" cases ill whi ch thtre is a possibility tha t Ihe chil d belongs
The first cue is when the woman is his wife uwlgives birth to her child after half a year of their firs! sexual inttteoun<, whdher the man lives with ~ Of not, si n the n~rn baby can be this man's child and
the.., is nothing to
~

Qd.e rwiu.

The IOnd cue is when the woman is divon:ed a nd gives birth to her

child afk r less than four years after her irrevocable divolU. for the

'"

VII, DIVORCE

muimum period of pregmIDcy is four years. In this caK, t~.., i, ~ possibility that th e child is from her a -husband, and thm lhe child is attributed to him.

In the tw<) afOfe$ald cases, the husband mUSI be Itn years old or more (to be abk 10 hive children). for the Prophet (PBU H) &aid:
"Command yourchildrm 10 pray wIwr they bome stW1I (yelm old) .. /Id but them fix ("ttltirtg) if (Lt.. pmytr) "'km rMy become tor (ycan old}; Il"d Ilmmgr IkiT hub (toslup) Hptlfilltly.The I'rrlphtt's command tn make the children sleep separa~ly when they beco me ten years old is a proof that they ao have $nul) intercourse, whleh leads to pregnancy and giving birth. This impUe. th.t. ten-yur-old ch ild can be a father even though hi.! puberty is nol n'ident. as puberty is evident only when tu signs Ire apparent on him . Thus. Muslim scholars are of the opinion that the husband's ability 10 haw: 5aUl.l lnlercoune is enough to make tM ~wbom b,aby belong tQ him, and thus pwpIes 'inngts being ~rvtd. The third Cl$<! (in which th~ newborn baby can bdong to the husband ) is when the revocably divorced wife gives birth to h~r child in I four-year pHiod slarting after divorce and M fore the expiry of her waiting peri od, The same applies when the revocably divorced wife gives birth to a child before a four-year ptriod afler the expiry of her waiting pniod. This it bea ...... the ruling on rtVOCI.bly divoreed womln in her wailing ptriod it the $l.me as that of a wife. to the ruling on paternity in ca~ of I'e'YOC.Ible d ivorce is similar to that in case ofbeillg married.

If a master admit' that he has had SHualinlercoul"Se with his oondmaid. or if there in proof (If their w:ual intercoum. then the child the gives birth t(l l ix months or more after the intercou!"$C belong~ to thi.! man. This it because she is legally comidered hl l lawfut woman by l uch l nlen:our~ ,,0.dio8 10 the gene",liry of th~ li~drrh in which th~ Prophet (PBVH) said:

-Tht child belongs to the OWn"" of tilt MI (I.t . tilt Juul,.",d or the nuuter of Q slo .... girl)."
If a master adm il$ that he has bad sexual intercourse with his oondmaid. IlIId then he has IOId he, or set her frtf!. he is considered the father of the dlild she gives binh to in Ins 111.1111 six months after her sale o r emandpation. This Is bause the minimum ptriod of pregnancy iuix m Onths. and ifthis oondmaid

0ueT 8: EM2bIi.bi"ll P,...",j,y

giva birth 10 hn child in less than six months after Ih~r ~"'tion, and her child livtS, it becomes clear !luIt she had conceivW her <hlld when she h.d bttn her ma~ter's lawfu l woman ~fou her..ale or emancipation; the Prophet (PBUH) said:

'"

"The ,hild belongs to the owner of the bed (i.e. the husblmd or the masterJ."
There Irt: two casn in whidlthe dtikl cannol belong 10 Ihe bushand.: The fint cue is when the woman gives binh tul n Ili~ child in I period I<'SS than six mOlllhs . fter her marria~, for Ihis ~riod is nOl en<MIgh for conceiving and giving birth 10 a child. In th is CI~, the wife mu~t have ~en pregnanl ~fore her marriage 10 her present husband. The _ond cue it when lhoe husband irrevocably dlyorce$ his wife and thm she give:! birth 10 a child In " 1IIOft" lhan foot ytfIl'S afttr divo=_ This is bfaU5e it is rndmt thal she Iw c~ the mild after her divoru..

The child of a bondmaid wUl not ""long 10 he. mastn if he claims that he
made sure she had ""r menstrual period aftn having suual ;ntercourw with him, u this maI= him ctrtain lobe did not conceive adtild .fter having sexual intercourse with him. Therefore. her doild su""y ""'ongs to anolher man. The master's claim is accepted in this case, a~ it is so difficult to verify whether she really had her menstrual period and did not conceive a child after having ~xual inlercoUI-~ with him or not. However, such a claim to disown the child is oot legally laepto:d unk" the master takes an ~Ih and swean by Anah thltthis ch ild don nOl ""long 1 him. as he thus denies any duty relllled to his 0 pllnnity of the child.
If there is a dispute over the IinnS" of I newborn b~by. the bwful brd rclltion$ ue kg:dly mOf"t oon$idero:d than a mere resemblance between the newborn baby and ils claimer. For example, when a master claims the child of his bondmaid 10 be hi. and anOlher man who had sexuol intercourse wilh her claims the child btcau$C the child "'i<'mblt'S him, Ihe child legally belongs to the mUlt fur lhe Proph et (P IlUH) laid:
,"lISler

"The child belongs 10 lite oW1le' of G sI~ girl).

of the baI (i.t. thl! hUWand 0,

Ihe

The child follows Ihe pt!digrtt ofhis father, for Allah, EXllled bc He. says:
"(All them by Ilhe nGmU 0/1 thei'fot"e ......~

(Qur"n: Al-Ahub: 5)

VII, DIVORCE

when il C()f11otS to ttu, child's rdigion, Ihe child follows Ihe ~tlH ITligion of his paten ... For example, if a Christian man ma rries a polythei$1 woman or vie( verMl, Ihe ch ild follows Ch ri$tianity. Yet, th e chil d followli hi s mother con cerninl:\ frdom or slavery. except when th ere is a previous condition or a ki nd of deception.
H owever,

AfleT this qukk illustration oftk I.lamic rulings on the establishment of palernity and verifkation of li nea~, "'" realize the keen interest of Isbm ID protm and verify pople'$ ~igrcrs as IhelT ue con$Cq\ICnt inteRS!$, such as mainlaining the lies of kinship, inheritance, guard ianship. and th e like. Allah, Enlt ed be He, says:
"0 mankind, Ind"d We h.."" created YO" from m/ll, "nd jtttwle "nd m"de you peopl" and ,.i/la th"t you may know one allo/heT. lndud, th" most nobl, of )'011 in th, light of Allah Is the most riglt/nJIU of yo". Indurl, Allah .. Knowing and A'Illlllintrd.M (Qur'ln: Al-Hujurit: Il)

of the .iMage is nOllntended for bua$tfulnn.s and chauvinism known during the Pre- isJamic Period of Ignorance (Ihe loihili)'Yllh). Rl1ther, it ai ms I1 cooperafion, maintaining the blood ties.. and being merciful towardoi one another. May Allah guide liS all to what He likts and pleases.

Mo~, the ~rificttion

Endnotes
I Al-IluWr1 (21 18) 1415191100 M irn (3600) [5Jt79]. ....

CHAPTER

Waiting Period
The waiting ""nod i$ a """,le of divoru", and il ~(ef$lo a ltplly sprc iCoed piod of wailing afln divor. The proofs of the waitlng.,mod are drr:i~ from tM NOOIe Qurln. the Su"mrJr (Prophetic Tradition) and the Const:nrus ofMwlim scholars.
Conc~rning

Ill.. proofs in the Noble Qu.lo, All ah, Exalted be He, say"

-Divorced wom.n ",",,/n ill ,..tIWnl (j.e" do no/ r"marry) for t"~ periodl ... ~ ( Qur'~n : AI.Baqarah: 228) He alw
$a)'$;

-A ..d tIrnM: om.. no ",lIP' n/Wct mnut.... ...,..,ell - if 1011 dOflb/, IMIf puiod i,

,Itn,

"'icHt '''''''''g ,.,u,

'''tu ,"olltl.,. ,,/'Id

Iho~ """"

/alsD for/ I""",,, ''"0 MW "ot "" ".stTlUltN. Alld fo ,

.. re PrYJfUlltt, ,lld, le"" I, ulllil theY,,\I birtlr .. ,~

(Q url n: A1Ialiq~ 4)

VII: DIVORCE

This concerns Ihe cases of separal ion bdWffn wife Ind husband in li fe. However, concerning Ihe case of the death of the hu,\)and, Allah , E.r.altC1l ~
He, says:

1/wR ..ha "re 1 1'"" in d~alh 1'1It""! YON tuld I~a"" wivQ' "'hind - thcy. {thc "';w" shll11] "",it!llUr monu" alld tCII/d4y,r
(Qur'An; AI-Baq"uh: 234)

~Alld

The proof deri'ltd from the SII"""" is the /!4dlth narnllro on Ihe aUlhority o f ' A'ishah (may Allah be pleased with her) who $aid:
"&lr/rah IVIIS ordered (by the Prophet) 10 COllnl Ihru monlhly periods as a ..aIling f/friod."'
(Rdatcd. by Ibn Mljah) There are other hadi,h, indica ting the same legal ruling.
As for the wisdom bdlirl<l the prescription of Ihe waiti ng period.;t is 10 makt: sure the woman has not concci'ltd I child be~ sq>arating from her husband. in order not 10 let any ronfusiOlllab pl..:c concern ing the lineage of IIIe child Mo~r. th is wa~ing period gives lhe husband lhe chance 10 rtptrIl d ivorcing her alld to take his wife back IS long is his divorce is '!.'VOCable. Hoooring the marriage contract and pointing ou t its hncti ty are :also intended through the prescription of the w:aiting period, and so is est=ning the right of th e ex-husb and . Besides, th e right of Ihe fetus is highly obileIVed through ttu- prescription of Ihe waiting p.::r iod when Ihe divorced wife is pregnant. In general.11tt waiting period il considered prolCCli~ of the prmOlll marriage.

The wailing pciod is obligatory upon every woman who has sq>;In.ttd from her husband whether by d ivorce, by IItt khul' (wifei rd~ .insl p~ym~nl). by a d i:;.s<)Jution of the marriag~ contract, or by the d eath of her husbomd. 1 isacondition to make the wailing period valid thatsudi a huswnd 1 cunKKmsly had privacy with the wife with her conllent and he was polent, whether !he was a f~woman or a . lave girl, an adult or. minor of those fit 10 have ~x ual intercourse.
As fortltt woman from .. horn her hwband 5Cp<Irata beforeconsummaling

marri.age wilh her, whether Ihrough divorce or the 1iM, .. hile hc is has no waiting period. Allah. E.r.alled be He, AYS:

ali~,

, he

"0 ,..11 ""'0 how hd icwd. ""'no ,.... ml'rry klini", lOO,.,,". OM the" dlO'OlTc 'ht m btfort 1<'11 IUI .... 101lch,., Ih,.", [i.t., COlISumml'ltd Ih, marriagf']. the" Ih_ 1I 11'" forYOII I'IIy .."ifi", per/oJ 10 rolllll c""Ctl7li"8 thtm, ..(Qur'An: A!- Ahzab; 49)

The verbto cmlll' in the vent men to C(lunt ing the peri0d5 O months to determine Ihe time or the waiting period. and -""ve .oudtM implies hiving $tXull intercourlt with them. Th~ noble verw indicateJ th at the~ is no waiting period for the woman divorced befou consummating m arriage. and theu is no di..pute am ong scholars OVer this ruling. The mentioning of the "bd/,,,/,,t""""''''' in the vuw is a m,~ nfeunce 10 the majority of the wives of Muslims. sinn Muslim scholan unanimoU$ly .~e that the..., il; no difference het " Un the believing women and thoK of the People of t/u: ScriptUu (Christian Or Jewish women) concerning this ruling.

'''tm

However. when the husband dies. his wif~ must C(lunt her prescribed Wilting period whether he has had comummated the marriage or nO(. for Allah. Exalted be He. 1lI)'l1:
"Alld those ",ho ..re , .. lee .. III de .. ,h ..mOllg you ....d leavc wlYft beh/lld - the)'> {the wJ,,", shall} wait/our IHOII'''J and " " {days } (Qurln: AI 8aqarah: 234 )

Moreover. there il; no lepl la t or proof to dilTenntiate betwn Ihe consummated and unconsummated muTiages in Ihis respl.

There aU six kinds of women in thei r waiting period: 1l The pregnant widow or the pregn ant divorced woman
2)

The non-pregnant widow

3) The divorced woman who still has her monthly menst rual period
<I) The divorced woman who does not have. monthly menslroai period,

due to young age or menopause

5) The divorced woman who no longer has her monthly menst:rual period,

without an

appa~nt

rcuon

6) The wife of a missing man

Concerni ng Ihe pregnant widow or the pregnant divor~d woman. her waiting period laslS until she givff birth. for Allah, Exal t~d be He. says:

M. And joT "'DSC WftO ...... Pretnllnt, their tu m /J UlltIl they .. t iw birth.(Qu r'An: A1-lill~: 4 )
The noble wnw ind;~n that the waiting I'C'riod of lhe prepant woman
encU wben .me givesbirth. Someo( tbes.. klj(ewly Muslim schot..rs) maintained that the pregnant widow mutt consider the Ion1u period: dther until she gives birth or until four month alnd ten days pass . However. afterwards. Muslim

".

VI1, OlVORCE

scholars unanimou.Jy agrN d th.t th e waiting period for the pregnant woman

ends when she give. birth, whether she is a divorae d or a widow.

However. the waiting period pr rscri~d for the pregnant woman does not end if she miscarries, and h OT embryo is a me1l' unformed lump of flesh. Th. waiting period of the pregnant woman ends when she gives birth to a newborn that belongs to Ih. separatro (by divorce. death, etc.) husband; thus. her

waiting period does not end if ,he gives birth to a child that does not belong to the separated hushand. For aampl e, if the husband cannot have children due to a congenital ddect or young age, or when the child is born alive in a period of pregnancy 1 , than six months an.r consummating their marriage, this ..
child does not belong to this ~paratw husband. Therdore, her waiting period d ""s not ond by giving birth in such cases.
Th. minimum period of pregnancy is six month .... Allah, Exolted be He, says:

... and hi_tutatlon imd m'Wling {pniodJ i. thirtynwnths .

(Qur';ln: AlAhqH: 15)

A,d
''Molhen /tiny "urse complete years ."

fi.".) breastfeedJ their child...,,, two

(Qur'an: Al-Baqarah: 233)

If we subtract the period of breastfeeding, twentyfour month" from

thirty months, the remaining i. six months which is the minimum l'<'riod of pregnancy. and there is nO child that can live ifhorn il) less than six months after conception. Muslim scholandifferon d etermining the maximum l'<'riod of pregnancy. The most preponderant view is that this period depends on the actual cas th,,\ h"ve already occurred. Al-Muwaffaq Ibll Qudamah said, When there;$ no leg~1 t:.lt, we must resort to the act~al (am, and some cases of pregnancy have bun reported to last for five years and more:' However, the common p"rioo of pregnancy is nine months, for most women give birth after nine months of the conception.
It is impermissible to harm or ass.ault the embryo .. it is highly protected in the Islamic snarl ah (Isllllllic Law). If the embryo, after the soul ha, ~n b",athed in it. ;,. miscarried and di<$, due to an assault against it, blood money and expiation are obligatory upon the erimi....!. If the pregnant woman deserves the legal puni.mment ofla.ming or that of stoning to death, it mmt bt prutponed until she gives birth. Also, it is impermissible for the pregnant woman to cause herself to miscarry by taking medicine or the like.

Ch.p'''?: W.j[ing I>.:,iod

These rulings indicate the comprehensivenrs.s of the Shad 'ah that observes and protects the rights of the embryos. Then, all pra i"" is due to Allah, Lord of the worlds., for His granti ng us this just and comprehensive Shari'ah. We ask Allah to help us adhere to His ShMi'~h and be sincere to Him in religion, although the disbelievers dislike it. Concerning the nonpregnant widow, her waiting period i. four months and ten days. whether her husband ha., died before or after the consummation of marri age. and whether she i. fit to have ""xual intercourse or not. This is bream. Allah. Exalted be He, says: "A nd th~Je who ort taUn in death am''''g you and /ea". wjus behind - they, {the wives, shall] waitfour months and te .. {days]..." (Qu r'an: Al-Saqarah: 234) lbnul -Qayyim said: "The WIliting period prfscrlped for the widow is obligatory. whether ht r mMriage has been consummaled or nol. IJccording to the generoli ty ofthe legal texts 1nl he Noble Qur :In. th eS unnah (Prophet ie Trodition) as well a.'I the u n~nimous agreement ~f Muslims. The w~iting period for the widow is not merely intended for making sure of pregn~n cy nor is il an absolute act of worship. sillet eyery ruling in the Shad '~h has ilS wisdom which is understandable to SOme and ambiguous to others."'
AI-Wadr and oth er scholau stated, Schol~rs unanimously agr.. that the waiting period for the non -pregnant widow is four months and ten days'-'

As for the widowed sL girl, she must observe half the waiting period of ave the fr~ widow; that is two months and five days (including five nights). This is hecau"" the Prophd's Companions (may Allah bt pleased with them all) unanimously agree<;! that the divorce<! slave girl must observe half the waiting period prescribed for the fr~ divorced woman. and so is the ruling on the wido_d slave girl compared to that on th e fr~ widow. AI -Muwaffaq Ibn Qudtmah <aid, "Thi< i< the view of the majority of <eha/an. ,ueh ~< Mdlik. A.hShtlfi 'I. ~nd Scholars of Interpretative Opinions." AI-Mu waffaq Ibn Qudtmah also said in hi, book enti tled AI.Mubdi" (the Creative):
"The Comp~nio"s rmanimousiy agreed that the widow sl~ve girl must observe half the waiting ""riod prescribed for Ihe fru widow W<)maM; otherwi5t. the verse slales a general ruling concerning both the salve ~nd.free wvmtn:'

VII: DIVORCE

There are some Rulings pertaining to the Widow

Th~

widow must spend her prescribed waiting period in the house wh~1l' she

was stiying it the deat h of her husband, and it is impermissible for her to leave thll house w:epI for I legal excUK, ou the ProphC't (PBUH) Jaid to a widow:

"Stay at your horn",:'

In :an<>thu namollon, he (PBUH) said:
"SIll)' durlllg )\Iltr

MJiting fWriod in tht hOIol$t wltm

~1oI Ift'r't

infonrrd afyour hu"band\: delUlt."

(Related by the Compilers of the Sunan)'" if the widow Is obliged 10 move Into another house, she Is to go whell'w, she desires in order to avert any harm. For example, she can leaw the Ilouse If she fears fOf herself from staying lhell' or u forced 10 Inve it, or if the hO\lK is rt nted and its owna asks her to leavr Of asb for
~milted
I

How~.,

higher Il'nl.

It ;1 pennissible for the widow 10 go OUI from her house for her needs during the daytime, nOl It night when evil incidents Il/"e expected, for the Prophet (PBUH) &lid to the widows observing waiting periods:
"Talk as much ~J you WlInt at tk I",mt of one ofyou and when you

want to sltep. Ihtn twryOl! ofyou should rtlurn 10 hu home.""

Moreover, it ill obligatory for the widow 1 show the Ioigns ofhe. IDOllming 0 by avoiding an that whkh may I/"OUie othen' desire IOWIrds 00 01" mm bet IttI"ICtift to look It With rq.ard to this. the greM tcholar Imba .... uI-Qarrlm (may Allah h~ mercy on him) said:

"This (the widows mourning 0,," htr latt husband) imiiC4/!!S Ihe
ptrJtion and wisdom of Iht lsiamic Sharl ah ((slami' LA",) and how i. thoroughly look. ..fier th", inr~'IS of Mus/i",.. Mourning tht dtetastd JjgnifltltM big disasler afdtath which prop't UJtd 10 uo.ggtmtt urnsivdy during tlv i'rt-lslo.mi, Period of Ignoran,,,, (rhllt!hi!iyy<lh). During such Ihys, llu widow used 10 stay in Iht wont .."" 5m.. UtJt houu, willwut lou,hing ptrfUmts., "I'plyingoiJ 10 her bcd~ /liking .. !>..th or Jumlil:e lids tlW i'ldia.u diuatufadion with rht DMnr PmltllilUJ'io" . Qu, ofHu mrlt"~ AIIllh, Emll~d /Je Ht, mu nullifltd this way of mOllNling obserwd by the people of rhr Prt-Islamic Ptriod. of 19nortlnu (rhe /dhiliyyalr), Ilnd substirured

pmience, thankfulness, ~nd turning back to Allah by saying 'Indeed, Wt belong to AI/oh and ind ..d to Him we will return: Since the di",st. r of deaJh naturally causes jU>in and sadness to the ptople of the deceased, Allah, tlu Wise, the Acquainted. <1l1ows them (th e relMjws other than the wife) to show only afew signs of mourning, that Inst for three daY' only in order to provide them with comfort and release their sadnw. So, mourn ing is prohibited after these three days <IS it is considered a prospective ."i/. What is meant hert. is that Allah permits women to mourn over their deceased. other than the husband, fo r thrt.e days. However, mourning aver the husband is related to the wailing period as it is considered af its nect ssities alld complementary practiC es."
A1J for the pl'<'gnanl widow. she ends her obligatory mourning as ~{)()n as she gives birth 10 her child. Her mourning is reslricted 10 her waiting ~riod and is complementary to it, and ont of i Is rulings and obligatiom. Thel'<'fore. her mourning is obligatory as long as she is slill in her waiting ~riod.
Imho Ibnul-Qayyim then said:

iI. l1I"mOI! needs to adDrn hml lflO /It lowly for her husballd. When
he dies and she is still ill her wailillg period and connat be the wife of another man, she must be preve nted from doing what a womall does for her husband. in .n-der to observe the right of Ihe deceased husband by preventing herself from another man until th e decreed waiting period ends. This also htlps block the means to desire men or be desired by men if she ad"rns herst!f.'''
Thel'<'fore, Ihe widow in her waiting ~riod musl avoid adorningherselfby applying dyes, henna, and the like. She musl not wear ally j~welry, apply any perfume. or wear any adorned dothes, a5 she has to wear only unadorned on~. How.,,~r, there is no special clothing for Ih~ mourning period, and hence the widow can ~ar her usual clothes ""cept Ihe adorned oneS. When her waiting period is over, she has nO legal obligation to say or do anything. unlike what som~ common ~op!t think.
Th~ wailing period prescribed for Ih~ WOman who no longer expects menstruation is three monlhs, for Allah, Exalted be He, says:

"Alld thfIU who 110 /ollpr e1C/,t menstTuatloll "mong your

_'11'" -Ify<lu dlIub1, then tht ir perrod 11 thrte manth$...~

(Ql1r~n: A1-Ial~q:

4)

VII, DIVORCE
'fhf, pr..aibcd waiting period for a diVOf'Ced woman, who iI not !=Snanf

and . till 11. ... m...,strual period" is fhree "",,,,frual periods, for Allah, EDited

be He, saY"
QVillOrud women rl'mai" in Mlmng {I,e., do no/ 1?marry} for
htl$~ttd

Ihrl't pniodl, IInd /f /, "01 '11 ..."" /n thrir ..

'0"'".....

for lhe", IDto"ctlll ...hal AUah

(Qur'An: .... ls..qarah: 228)

This noble verw indi(;ltnlhal the divon:ro woman n.ust observe a waiting period of three meMtrual periods. and thm w can MTII.rry if she likes.. The word "periods" mmlioned in the wrse ",fen 10 men$lrual periods, a5 narnted from ' Umar IbnuJ - I<III1.U~b, ' Ali Ibn AbU. Dlib, and Ibn ' Abbjs (may Allall be pleased witll th em all), The Prophet (PBUH) used tile ltame word 10 re~r to Ihe same meaning as he (PBUH) said 10 a woman In a Slate of ;,tibAdah (Le. a woman having vasi nal bJding other than mmslruation):

. .. When )I1ur menslrutJlion com"" do /10/ perfo,m /'To.,,""-"

Moreover. Ih.,., Ihlft menstrual periods must be compk~. and Ihus if Iht woman is divorced during her meMtrual period, this period will not be counted a5 one of the thl" menstrual periods pres<:ritlfil for t",r as a waiting period. It is worth mentioning that though divorce i~ prohibited during the mr ... trual Jl('riod, it is legally vllii d.

The prescribed waiting period for the divorced rJ.a..., girl is only tWO menstrual Jl('riodJ, for tite Prophet (PBUH) $;lid:
"The .....iting ~riod of liu Ji,...., womlln iJ two monthly pmods.-

Th il is Ihe opinion of ' Umar. itis son (' Abdwllh Ib n ' Umar), and ' All Ibn Aba Dlib. and 00 one ohhc Prophet's Comp;an ions opposed this opinion , Thu this rul ing makes an t~cq>t ion rI the gmeraJity indioled by the Qur'anic veru, U Diw.rreJ rt/f/alll /n Mlllin, {I.r., do nal rtmarryJ for rh," period$ .~ (Q ur1 n: Al B~qarah: 228) According to the analogical dedu ctio n,

_mt"

the waiting period o(l he slave girl is half that of th e (,"wo man" i. ... one and half mrnstmal peri(t(I$. Yet. u the "",nstmal period aonnOl be divided, tllus the waiting ~riod of the girl is lWO menstrual ~riods.

,la...,

As for the divorced woman who does not haw a monthly menmu.d pniod dur to m~use or young age. her wailing period i. three months. This is according 10 the noble verw, ~And 1110# ""'0 ,,0 'on1ft' up1 menslnlllliOll amo"g)l1ur _mo" -Ifyou doubt, dun thei, perlfHIl' thr "'/lnth., and (""0 !/lr}lhMt who hI/ill 1101 ItItH/lrUllltd .. (Qur'~n: Al-Iahlq: 4 ) "

Ch.p"" 9, W.i[ing l'<rOod

47~

With regard to this, Imim Muwaffaqud -Dtn Ibn Qudlmah and other scholars stated that:

"Muslim scholars UIf a If i mously agree I hat I he wa i ti ng periodprescribed for th~ mtMopausal freewoman and far Ihe youMgfreewomoll, who ha> Mot mmstruatcd yet, is Ihree momhs"
As for the woman who ha. reached the age of puberty but has not menstruated yet, her waiting period is to be the same as the menopausal woman, as she is induded in the verse: ~___ alld (also for] 'hos~ who have no' mellltruat~d___'" (65: 4) \\/hen the menopausal divorce<! slave woman or that who has nnt menstruated is the mother of a child of her master, her wa it ing period is two months, for' Umar (may Allah be pleased with him) said:

"The waiting period prescribed fo r the divorced s/ae girl who has btgoltm a child to her master is two menstrual periods. If she has not mell$tnwled, he' wailillg period is IWO montlls, "
This is because the months substitu te for the me nstrual periods. 5<>me scholars maintain that waiting period of such a WOman is only one and half months. Thei r proof oflhi s is that the waiting period prescribed for the slave girl is half that observed by the freewoman, and the wailing period for the freewoman who has not menstruated is three months; thus, the menopausal slave woman is one month and a half.
Co ncerning the divorce<;! woman who used to menstruate but suddenly stops menstruating not because of old age, she has two cases:
The firft CIl5t is when she does not know the cause that prevents her menstrual period, and hence, she is to observe a waiting period of on e ~ar: nine months for pregnancy and three months for the waiting period prescribed for the menop.usal wOman. Aih-SUfi'l (may Allah have mercy on him) said:

This is Ihe judgment of ' Umar issued among the MuMjir,," " alld the An.!"'" and none of rhem dellied it. Th. rearon btkind l~is1ating s~ch waitingperioo is to make sure Ihat the woman is "01 pregna/lf, and when nine manlhs pass, it btcomes cerlai" IkM she is n OI pregnant. Then, she '" to observe Ih. wailing perioo pmcribed for Ihe menIJpausal woman, i.e.. three montm. The lotal wailing period '" Ihus twdve monlm, during which it wiU bt urlaill that she is 1101 pregnant and that the three months .upposed to be fc r mtmlruatj"H have palSed:

."

VII, OIVORCE
The HCond cast is when such a _man knows IM cause that prevents her mmstrual.,..riod. such as iIInm. brnstfding. or taking a medic:iM thi.! pn:YI:nts mensln.l2l:ion. In this (list, ,he is to wail until tk U~ no longer nisI>., and thm if silt menstruatn again. she is 10 observe a wailing per iod ofthl' memtrual.,..riods. However, if she does nO! menstruate, she is to observe ~ wailing period of one year just as the woman who dDe not know the ClIUst that pn:vents her menstrual p<:riO<l, according to the most prepondentnt view. This is the opinion
ofShaykhul-bl~m Ibn Taymiyah and onc of the I>piniom [dated about

[mlm Ahmad. Theft are tomt cases .,..rllininSlo the mUSllh'lIah" : TM first case is when she knows her time and habit of menstruation bd'on istib4dPh ".11Ien,her wait ingperiod must equal th= ~nstrual periods according 10 her \l5Ual ~ Iern.
Tht 5Ond ~ is Whrll she fofldj tM dUrlItton other menstrual period before the iSliiI4dah, 001 shtdistingul$l\e$ her menstrual blood (from the blood of isrill6d.ah); thut. sh e must consider her men.trnlion pcriod relying on the di5tinclion bclwten the menmual blood and t~t of iftih4bh .

The third case is when .he forgets the lime'! of her men.truation and she cannot distinguish her menstrual b lood. Ihen $he is 10 observe the same waiting pcriod of a menopausal divorced woman. namdy three months.. Oneofthe rulings pertaining to IM wailing period is Ihe marriage propoJal 10 a woman ob.serving her wail ing period. It is prohibiled 10 propose frankly to the widow or the irf'tVOCtlbly divorced woman as long as any o f ~ is obierving her waiting period. For aample. I ma n is prohibited 10 say to such a wormn something like. - I W;lm 10 marry you." Ho--..er.he CIn allude concern]ng' proposal 10 her, such as when he says, - I want to marrysomcone like )'0\1", for Allah, Exalted he He, sa)'$, - Thm blame "pmt ro"/fIr th4t to whlth Y"" [I"dlnet',] "I/rule "",,r"/"I" t" wom~" ... (2: 235)

propo'",

,,"0

In addition, it is permissible for the man 10 p ropo"', whdher frankly or indirectly, to hi. revocably divorced wife during Or aftu hu waiting period. since M b permine.:l 10 lau back his TCv(l.;ably diV<)rced wife during heT

waiting period or remarry her ;dler her wailing period.

As for the wife of a missing man who has disappeared and it is not certain that he i! alivr, she is to wait a sufficient period, set by the judge, for him to come backor until something certain is known about him. During this period, me is still considered his wife, since thte principle acted upon in this case is that he is considered alive. Wh en thi' f'C'riod expires. he is legally considered a dead person, and his wife is to observe the waiting period prescribed in case of death, which is four months and ten days. Thil iI the judgment the Companions (may Allah be pleased with them all) gavr in such a case. Iml m Ibuw-Qayyim said:

... The Rightly-guidM Caliphs gave judgments conuming the wife of 1I missing m<ln a, n<lrrMed "hour Um<l' Ibnul-Kh<lUAb. Im<lm Ahm<id Ibn U<lnhol said. 'r do nor doubr this ruling, fo r five of the Companions ordered rhe wife of the mming m<ln to obs ....w the w<liting ~riod prescribed fo' tlu: widow.' .>0
Imlm Ibnul-Qayyim added, "Tlu:opinion of' Um"r is rhe most preponde'<lnt

view by means of an<l/ogic<I/ deduction. "nd SJ,,,ykhu/-bliJm Ibn T<lymiY<lh said, 'This is the sounde$t opinion.'
When the waiting period of the wife of a missing man expires, she is permitted to marry another man, and she does not need to get a divoKe from the guardian of her miMing husband. If she remarries and then her fi!"$\ husband returns, he has the option to take her back or approve of he.- second marriage and restore his dowry, according to the preponderant view, whether his return ill hefo.., o r after the consumDllltion of her marpage 10 the other man. Wrtt> reJlard 10 this, Shlykb..I -lalAm Ibn Tl yml)'llh (may Allah have men:yon him) said:

"The sounkst ruling On tlu: wife of a mining m<ln is the judgment of Umar "Md some other Complmiol15; site must ..".it four ~rs. then abuTW the wtlitiMg period pnscribed for th~ widow. A.fter completing h.... w<liting period. she is permitted to m"ffY "n(}th .... m<ln. if her first husb<md ,..,turns after slu: has mllrrltd, he has the option 10 take her back or to restore his dowry, whetlu:, his return is EH.fore or after rhe COllSllmm<ltion of her mtlrrl"ge to the oth .... maM. A.nd this is the opin km <leted upon iM the liaM""lf School."
He added, "Giving the man the optian af t<iking hoek his wife Or restoring his dowry is the most prepond....anl view.""

VU, DIVORCE

Endnotes
1 1bn M~j.h (lW7) [215311 2 Th" i. the waiting period <>ftn. non-pregnant widow_ 3 See; M-M"ghni (11/B4). 4 See: "Z<ldul-Ma 'Jd" (4/206), 5 See the footno t. in ..... r.Rowd AI-Murbi '" (7/5S) , 6 See: "AI-Mughni [9/107). 7 Se. the footnot. in ..... ,..Rowd AI-Murbi" [7/561, 8 Abu Diwfld (BOO) [21500j. At-TIrmidhi (J21H) [315C191, An.N""! (3528) [3/5101. and Ibn M~j.h (2031 ) (USOIiI_ 9 Ibn Mi j.h (2031) 121 SOIij .nd An-Na ..t (3529) (31S J I). 10Th. Sunon r&11I to compilation. of th. Proph<l;c fI<ldlih. cla"'ified acc<:>rding to 1.lamic ju,i.prude ntial.ubj<ct.; th. main rom compiler:< oftht Suntln ore AbQ N.wOd. Ibo Mlj~h, At TirmidhJ a nd An-NW . 11 AI .B"l"haqi (15512) [71717 1. 12 S "J"Mm AI-M""'<!j'in' (21 t651_ .. I J AIHi Dl.woid (280) 1111391. An-N ..., (211) (1/1311, .nd Ibn MAj.h (620) (l/3-(J]. 14 Thi. i. becau.e the diyah (blood !IHlney) <>fa girl " half that of. freewoman ond. likewi"', the punishment girl ,ei"". i. h.lf th.t of a freewoman_ IS Su").I-Mughni" (11/2651_ 16 Ad.Dar-.qutnI (3785) [312J~), Al -lI.lyh>tqi (154,1) 171~1, ,Dd 'A!>dur_lumlq (l21!7l) 1 71ll1 1 _ 17 The MuMjin;'n: The Emigrant" those Mu.<linu who emigrat.d from Mec<. to Modin. for bring pe,,,,,,ulod in Mca becaUK of embr:u;ing I.lam_ 18 Mu,wJJMpJ., A worn.n in tat. of i'li/J.Jd<lh (i . , 0 woman having vaginal bleeding other than mtIlSlru.tioo). 19 l<Ii/J.Jd<oh: Voginal bleeding othtr than merutruatiQn. 20 See"/ ' lam AI-Muqi 'in" (215J). 21 ~. Majmu u/ Fo,dwJ" (IOI377-JIl 11 ,

tn.

1 .""

si.""

CHAPTER

Verifying the Slave Girl's Non-Pregnancy

Verifying that the slave Sirl is not p""snant is achieved by hcr master abs tain ing from having s..xllal int~rcours.e ,,i lh her [or a specified ~riod suffic ient to make sure that she has I\ot conceivw. Thus, when a slave girl "is w ld, given as a gift Of capturw and sh e is fit to have snua] intercourse, her new master i, prohibited to have sexual intercourse with her or even foreplay until making sur. that oh .. is not pregnant , for the Prophet (PBUH) said:
"It is not/awful for a man who wliey~, in ..... lIah and th . Laot [),.y to watu what anothu has Sawn (meaning having sexual intercou rse

with a pregnant woman;'-'

(Rdated by Abmad, At-Tirmidhl and Ah(l mwUd)

In another narra tion related by Ab6 O.wud, the Prophet (PBUH) said:

"No one should hill'e sexual inter(oul'1e witlt a pregnant woman (from a prt'I'ioUJ man) until sire gives birflt:'

VII: DIVORCE

The period of verifying the pregnancy of a slave girl la.'lts until she giVe!; birth, due to th e generality of the Qur'anic vcne:

"; /lnd for tho,e who .. .., p"'gnant, th eir term is until they give b;rth ..~ (Qur'~n: Al-Ial1q: 4)
The period of verifying the non -pregnancy of the nonpregnant slave girl who menstruates is on ly one menstrual period. as the Prophet (PBUH) said about the enslaved women of A"'lh':

'No one should have somal intercour~e with a pregnant woman (from a previou~ man) until she gives birth. nor shauld anyone have ,~I intercourse with a non'pregnant woman ""til a menstrual period passes'(Relatw by Abmad and AbCl mwild) This IJlldith indicates the obligation of verifying if the slave girl is pregnant or not. whether captured or not. before having sexu al intercourse with her. Morrover. this lJadith illustrates how to verify the pregnancy of the pregnant slave girl and that of the menstruating one.

As for the menopausal ,lave girl or one who is still young and has not menstruated yet. she needs one month to verify her pregnancy. since one month substitutes for one menstrual period in counting the waiting period.
The wisdom behind tJu, prescription of verifying the PrqpuulC)' or the non-pregnancy afthe slave girl is implied in the badlth in which the Prophet (PBUH) sari
"It is no/lawful for a mall who ~ieveJ ilt Allah /VId I~ l4$f Day to
water what another has SOwt1 (meall;ng havi"S sexual in/n"roW'~

with a pregfUV11 woma,,)."

This indicates that the ooje.:tive of verifying tll/, pregnancy is to avoid any possible confusion concerning the lineage of the offspring.

Endnotes
I Ahll Dlwdd (2 158) 121425J and At Tirmidht (1133) (JI437 ]. 2 Ahll DlwM (21 57) 121424].

1 Th~ pLtct who", tru: Battt~ oHuna)'IItook place.

VIII:

CHAPTER

Breastfeeding

Allah. Exalted ~ He, .ay. conccrn ing women one is forbidden to marry (temporarily or perpdually):
", .. your {milk] moth."., ",ha ""rwd you, your , ;ster> through

n.."lng...~

(Qur'an: An -Nid': 23)

This is also demonstrated in the Prophetic /1adiths as it is related in the two authentic books of Al-BukMrl and Muslim that the Prophet (PBUH) said:
"All things which b;:com~ " ..lawful WCOUS( of blood reiations are unklwful becallSe of the wrrespol1dil1g fos ter breastfeed;ng reiatiorn'-

He (PBUH) also said ill " iladilh rdated by the Group of Compilers of 8Jldith:
Wh<lt is unl<lwful buause of blood ",/a HQtI$ is also unlawful

because of the rornspanding!oster brtnstjetding relatjom:'

VIII BREASTFEEDlNG

Linguistically, breastf~eding refers to ,ucki ng milk at th~ breast or drinking it (wh~n milked in a container). Jurisprudentially, the tenn refers to ,ucking milk at the breast or drinking it in another way by a child less than two years of age provided that the milk re,ults from pregnancy. As for the rulings on foster breastfeeding relation" they are treated like blood relation, in marital affairs., being alone with a woman, bdng a mabram (a woman's husband or any unmarriageable kin of hers) and the ~rmisl;jbility of exchanging looks, which will be demonstrated in detail later, if Allah wills. However, there are two conditions tilt fulfilling of which renders the rulings on blood relations applicable to foster hr~ast(eeding relations:

The first condition: Th~ nursed baby must have five such or more, for Rishah (may Allah be pleased with her) narrated:
"11 had re~aJed ill theGloriousQuriln th~t ten ck~r 5ucks make th e marriage unlawful, then it wa5 abrogated (~nd sub51itu led) by [M ,ucks and Allah~ Me55enger (PBUH) died while it (i. e. Ihe ~rse indiC<ltingfivr sucks) wa5 still recited as a verse of the Qurilll (for some Muslims were unaware that il was also abrogated.)"'
(Related by lm~m Muslim) T he abrogation here is applicable only to the recitation and not to the juristic ruling. This narration gives more elabo ration to the general meming of the aoovr-mentioned verse and hadifh as far as nursing is ,oncemed. T he second condition is th.at the nursed baby is to be breastfed five sucks (or more) during the nursing period which is two years, for Allah, Exalted be He, say>:

m.m

"Mothen may nurse {i.e., UrtfUtJudJ theirchiIMen two compku )'flln for whoeur wishes 10 wmpl~f the nuning (period],,,~
(Qur'~:

AIBaqarah: 233)

ThLs vuse signifies that the brustfeeding meant here is the one which takes place during the two years of nursing. This is also asserted in a lJ.adrth in which the Prophet (PBUH) says:

"The only brtastfeeding which makN rn/lrr;Qge unklwful is tfult which is laken from the brea~t and entm Ihe bowels, and is fQken before the time of weaning."At- 'limaldhl .says, "This is a basan (good) labib (authentic) b.adlth."This

badith means that the nursing which prohibits marriage is that which the

1: B",as,ftcding

nuned baby gets into his boweIs in a way that nut1Ures him and makes his bowels grow and enlarg~. Thus, trn, littk insigniftcant nUClling that does not enter the b~s of the nursed baby r>Or render them wide does not prohibit marriage. Besides, the nursing which prohibits marriage and to which the rulings on blood relationships are applied is that which take! place befOJre the ~ning. That is to say, the prohibiting nUClling (prohibiting marriage and other affairs) is the one occurring while the nuned baby is still taking his nourishment only by breastfeeding; only milk which makes his flesh grow and thus becomes a part ofhirn (in the fonn offlesh and bones). It is considered a suck when the nursed baby starts sucking milk at the breast then stops for breathing or sucking another breast Or for another reason. Ifhe returns to the same breast afresh after that pau~, it is considered two sucks even if this occurs at One time. This is because the lawgiver has defined a certain number for the prohibiting nursing and not the way of nursing it~lf. It is rather determined to be a suck according to the commonly acknowledged customs. If the milk enters the abdomen of the nursed l.by without being sucked, by way of lening it fall in drops into his mouth or nose or by drinking it from a container and the like, it is then lreated as being sucked at the breast as far the juristic ruling is concerned. This is because the nursed baby takes nourishment from it that way the same as done in breastfeeding, provided that he sucks five time. M for prohibited things due to nurq the nul'$ed baby is considem:l as the son of his wet nurse since the latter hu ~ bim at least fi~ times when he has been WIder the age oftwo. Thereby.}t if proIu"bi\l:d for her to marry him, and be iI; a mabra". for ber, in consideration tG.wiw Allah, Exalled be He, says:
~.,.your {mUk}

moth..,., who _ _ ,.....~

(Qur'An; AnNisa.'; 23)

Thus, it is allowed for the fosterson (0 look at his fostermother and be alone with her. However, the foster son U oot regarded as the son of the wet nurlie regarding the other rulings: he is Dot obliged to provide her sustenance, they an not entitled to inherit each other, he is r>Ot to pay the blood money on her behalf if she kills or injures some person, and he is not empowered to act as her legal guardian. Thi. is becaulIe blood relationships are stronger than that resulting from nursing. Yet, both relationships an not to be treated alike as far as juristic rulings are concerned except in m~tlers stated in a Quranic or a Prophetic text, such as being prohibited to one'. fostermother in marriage, being l.wful to look at each other and being alone with each other.

VIH BREASTFEEDlNG

The nurse<! baby i.'l regarde<! as the son ohhe man to whom the milk of the foster.motber is ascribed to have bn cause<! by him byway of pregnancy or sexual intercourse through marriage or the like, since her pregnancy is ascribed to him and nursing is one of its results. Thereby. the nursed baby is regarded as the son of the foster-father, and the same rulings that concern the foster-mother apply to the foster- father. That is. it is prohibite<! for the foster-father to marry his foster-daughter. yet it is permissible to look at her, be alone with her and be her mahram, but she is not regarded as his daughter in other rulings. Besides, all the mahram. of the foster-father - his fathers. children, mothers, grandfathers, grandmothers, brothers and sisters and thdr children, his paternal unci"", his paternal aunts, his maternal unci .. and malernalaunts - are mahrnm. for the nursed baby. likewi se, all the mahrums of th e fostermother _ her fathers, children, mothers. sisters, maternal aunts, paternal aunts and the like are his mahram. Since nursing makes it prohibited for the foster-fath er (or mother) 10 marry the nursed person. beside the rulings on marital affairs. all of these rulings apply to the children of the fwter child. his grondchildren. but not to hi. fathers. mothers. paternal uncles, paternal aunts, maternal und .. and maternal aunts nor 10 his broth ers and si.'lters. If a baby breastreeds at the breast of a woman who is married through an invalid marriage contract or a woman who has committed adultery. he is to be ascribed only (as a foster child) to the foster-mother. since hi.'l paternity has not bun established from family rel.tionship (h is father is unidentified). As paternity is not established through a blood relation, it is nOI established from nursing. for nursing is a branch of paternity. If two dJildren (a male and a female) have breastfed from the milk of a milch animal, this is not a prohibiting nursing. Scholars di. agree as to the case of the child being nursed from a woman who may breastfeed without ~ing p...,gnant or having sexual intercourse, whether this nursing is a prohibiting one or not. Some scholars maintain that it is not a prohibiting nursing, since her milk is not a real one (not resulting from having sexual in((rCQurse). but rather a biological. unnatural one. Besides. real milk is the one sucked from a female breast making the bones and the flesh ofthe nursed babygruw. while this milk does not do this. Other scholars. such as Al-Muwaffaq and others. are of the view that this nursing is a prohibiting one.

Ch. p'cr I, B....."tt~ing

487

Breastfuding is confirmed by a testimony of an upright woman. In this

regard, Shaykhul-ls1O.m Ibn Taymiyah says,

known to bo: truthJu~ and hm mtntioned llulf sht "'as brl'aslJed a certain baby (under tht age oJ /wo) five times, htr lalimony is acceptable according 10 th sound"" view. and Ihe rulings on nursing are applicable in this case."'
jj

... If this woman

Ifth. nUr!ling is nol confirmed, or the .ucks are doubted to be five Or less and there is no evidence proving the COnlTary. then there i. no prohibition. ThiJ is because the original ruling iJ that there is no nUr!ling. And. Allah. Exalted be He. knows best.

Endnotes
1 A1-BukhArl (2645) and Muslim (1447). 2 AI-Bukhtrl (2646) [513t21 ond Muslim (3554) [5126<l1 .

3 Mudim (3582) [5/271 ].

4 At-Tirmidhl (1154) [lH58]. S See: 'Majrnu 'uJ-""I~wd' (34/52).

CHAPTER

Custody
Jurisprudentially. custody is the protect ion of a ch ild or a mentally ill adult and the like, pl1:venting any harm from befalling him, bringinghirn up through "'t ing to his physical and moral ne.:ds.

The wisdom beh ind custody is manifest; the child and those. of his ca", (lacking discernment, such as the insane and the lunatic person) arC unable to manage their own interests. Therefore, they n~d a guardian to take Ca"" of them by protecting them from any harm, bringing about whatever is useful for them and bringing them up in the proper way.
The S~wrl'ah (Islamic Law) has decreed custody, ;lnd it is in facl a divi ne

mercy through which the affai['l; oflhc wards an: conducted. a way iD do them the power of good. If the wards are left without being taken care of. they will be lost. As Islam is the ...,Ugion of m ucy. solidarity. and consolation. it enjoins Muslim$ 10 show mercy 10 Ihem. take care of them and solace them. Islam also forbids Muslims from k aving such ~rsons without a guardian and make~ it

VII! BREASTFEEOING

obligatory upon Mu.slims to provide for them. Mortover, it is a right of the ward to ~ cartd for by hi. rtlatives, and it is at the same time a duty upon the guardian to tak( care of him as in the ca", of guamianships.

Custody is Obligatory upon Guardians in the Following Order

The person mmt entitled to have the custody of a child is the mother. In this con~rn, Im~m Muwaffaqud-Din Ibn Qud~mah (may Allah haw mercy on him) says:

husoond and the wife (Ire leg(ll/y sej><zml..i (lnd Ihey h(lw (I child (W(lM or ins(lM whdher male or fema le), his/her molher has Ihe best right to h(lve custody, if she fulfiliJ rhe conditions nece55(l'y for Ihe person to haw custody over (I child. This is the view maintoined by Imdm MJIik and the scholars known for perwnal interpretative j"dgments, (lMd it ha .. not come /0 my knowWge Ih(l/ there is (I contrary opinion:
A woman has no right of the custody (of her child from a previous marriage) when she marries (another person), and the child's custody in such a case automati~lly devolves to the nCltt most eligible person. This is bn:aUst once a woman came to the Messengerof Allah (PBUH) and said:

"If Ihe

"0 Messenger of AI/(lh! My womb was a vessel to this SO" of mine, my breasts were (I me(lTlS of quenching his thirst, and my lap was (I pl(lce of protection for him. Yel, his father has divorud me, Imd wants to take him away from me: The Prophet (PBUH) said, "You have more right to him as long as you do not marry (another person)."'
(Related by Im;1m Ahmad, Abil Dawfld, and AI-H1kim who deems it a iIlbJb (authentic) badirh) The b.adith signifies that the mother has the best right to have custody of the ch ild ifher husband (the child's father) divorces her and wishes 10 have him under his custody. I1 also signifies that if the mother marries another person, she is no more entit1~ to k the child's guardian, The mother takes precedence in having the child in her custody since she is tenderer toward the child Ihan his closesl rtlalive. None shares her do~."s of blood relationship ucept the child's father, yet his tendernCS$ is less than hers. In case the child's fat her is entitled to haw custody owr the child, he would let his prestnt wife tak( can: of him. The child's mother has the best right than

Ch.pt 2, ClIItooy

'"

the husband's wife to have the child under her custody. In this connection, Ibn 'Abb~s (may Allah be plea=:! with him) onc" said to a man:

"Her (the mOlhtrs) smell, bed Imd lap are bel//" for your $on until he renchC3 the age of dis=tion and jsgi~el1 choice as /0 which afMs parmu he want$ /0 stay with."
In this regard,
Shaykhul-Isl~m

Ibn Taymiyah says:

"The mother has. more right 10 have cu$tody over her child rhan the father, since she is doser to the child than his father, as. sht knows bt~t

about his nourishment, carrying him, lulling him to sleep and giving him things ro pl~y with and th.like, Moreovn the mothu knows better about her child, and is more merciful, capable, patient with him/her than anyo~t eu(, There/m", sh~ i, specifically d.,ignat.d, according to Shad' al., to ha"" custody over her ul1discriminaling child: '
However, when a mothers right to th . custody of her child is lost, it devolves to her mother (th e child'. maternal grandmothers in ascending lineage) according to their do.eness to the child, This is because they are regarded as the child's mother, for they are the ~rsons who have begot the child's mother, and whost mercy to the ward i~ more ensured than others, Then the fathe r, to whom the child's existence is ascribed, is given precedence over other relativ~ concerning the custody of his child (after the child\; mat. mal grandmothers), for he is doser and more loving to him than others, After that, the right of th e custody of the chi ld devolves to the paternal grandmothers for they are among the child\; agnate relativ"" They are preferred to grandfathers, for when there are SOme persons with the same degree of rdation to th e child, the woman is more ent itled to take pr. cedence, for she is closer to the child, This is the same a~ in the case of the father and the mother, The right of cu~tody d"volv~ then to the child's paternal grandfathers, aCcording to their closeness to the child, for they are rogarded a~ the ward's father, Then, the right of custody devolves to mothers of grandfathers (mother of the rnatemal grandfather then mother of the paternal grandfather), for they relate to the ward by his/h er grandfather and they have begotten the ward's grandfather, Thus, the ward is regarded as part of their lineage, After that, the ward's si.ters have the right of the custody of the ward, for they ,..,Iate to him/her by both or either parents, So, the full si~ter is given pr~cden,e over half sisters, for she hali priority in inheritance, The

V11l BRfASTFITDING

half maternal sist~r comes nnt in having the right of the ward's custody, for she ...,lates to his/her moth n who is given precedence Over the father as far as the right of custody is concerned; then the half paternal sister. However, some scholars maintain a ,.,asonable opinion that the half paternal sister takes precedence o""r the maternal one, for the position of aut bority is for the father's side. They also say that the paternal father is more eotitled to inheritance than the maternal .ister, since she is regarded as a full sister in case the full sister is absent . The right of custody then devolves 10 malernal aunts for thtir relation 10 the ward's mother. In this regard, il i. narrated in the Two Authentic Books of AjBukhari and Muslim that th e Prophet (PBUH) said,
"The matern,.) aunt is of the same slMw as the mother:'

Howev.r, the mother's full sister takes preadence, then the mother's maternal sister, then th e mother's paternal .ister, as in the sisters' case. Th. paternal.unts then have the right of custody for their relation to the ward's father, who come. after the mother as far as the right of custody is concerned. 10 this regard, Shaykhul-Islirn Ibn Taymiyah <may Allah have mercy on him) says:
"The paternal Qlml is more emilled to the righ t ofth. wstody of the w~rd than the maternal aunl, Ihe S<im~ i. true with the paternal femal e relatiyes who take pr~,d~nce owr the mM"m") ones, for the father has the upper hand ~nd sa the same will be with his cia.. relatives. The mOlher tak .. pr~udenu o""r the father in having the <ustady of thuhild, for she is , he b..I on~ to sa to the childs interull than anyone elre. In this con,em. th. l~wgi""r gave precedence to th~ maternal aunt ofHamzahs d~ughter over her paternal aunl ~fiYY"h, for the lattff did nol claim the cuslody of th e ward wh ile /a far (the hwband of th. wards maternal aunt) claimed it on behalf afhis wife (rh. ward, maternal ~u nt). Thu,. the Prophet (PBUH) jud~d that H~mz~h5 daughter i, to be iM the custody of her materMal ~u"t while she (Ihe aunt) was ab..nt."'

Shaykhul-bllm Ibn Taymiyah (may Allah have mercy on him) also sa)":
A lllhe principles of the Shari'oh appro ....e that the f~th.r's relntives are to taU prfJCedence o""r thou of the mother in having cu~tody of the W<lrd. Thus, whoe""r does the oppruite breaches the.. principles and the SharJ'ah :

Ch.p, .. 2, Q",ody

493

After the ward's paternal aunts, the right of custody devolves to the ward's brothe ...' daughters, then to the siste ...' daughters, theo to the paternal uncles' daughte ..., then to the paternal aunts' daughters, then to the rest of closest agnate ' elatms to the ward This must be according to their relation to the ward; the closer takes p",a.den"", as follows; brothers, their sons, paternal uncles, then their sons (cousins). If the ward is a female, the person who is entitled to have her custody must be one of her mahrams. If he is not from her mahrams, he should eotrust her to some trustworthy woman he chooses for the ward.

Endnotes
1 Allmad (6707) [2I182J. AbI DAwCad (2276) [2/490], and At'H~k im (2889) 12I247J.
2 See: . Mojm~ "IFotawa [t 712l6-2 t 8]

3 AlBukMri (2699) [S/373]. 4 See: 'Mojmu wlForawa (341t22).

CHAPTER

Causes Preventing Cu stody

The right of custody may W taun away due to the following ru som :

SIIVy: A.-Jave is nOl aJl~ 10 ha\~ the custody of a ward. for custody is a po$ilion of authority to which a , la\"(C is nOl entitled. This il because a slave is
always busy serving his maiM. and totally dcvuted lu his ~~fitJ.

Diwbedienct: A dethotly di robedient pt'rs.on ;1 nOI ent rusted to the cu$todyof a ward for fear that he may reoder harm 10 the ward by blIdly raising
him/her according 10 the sam e ~vi l nlanncl"$.
l.ikcwise. I disbeliever is nOI enlill ed to take a ",,,r<! in c ustody. for he c....5tJ m uch harm 10 the ward by turni ng h im/her aWiy from Islam b)' raising

him/her according 10 the teach ing!' and man~!'l; of di~liri.

MQm;n....r, the woman who is married to someone who is not among the agnate ~Lal iW$ orm., ward is nOl entitled to takt .t.., atIOtody (If Ih.. ward. This is because the Prophet (PBU H ) O l~ sa id to a child', mother:

"You hove mort rigl1110 Itim a,long as you do not marry."

VIII BRFASTFEEDING

This is because she is entirely devoted to her husband who has the right to prevent her from looking after the ward, Thus, if the woman is married to someone from amongst her ward'$ relatives, she still has the right to the custody of the ward. However, if the aforementioned causes are eliminated, those who are prev,"nted from having custody of a WlIrd may take this righl. To elaborate, if the slave is set free. the diwJH,dient person repents, the disJH,liever embraces Islam Or the remarried woman is divorced, then either of them will JH, entitled to take the custody of the ward. Thi$ i$ because there is no QlI$e pI~nting taking it in such cases.

If one of the parents of the ward wishes 10 travel a long journey in order to Slay in a distanl place, intending no harm to the other party, then the father is more entitled to take the custody of the child. It does not make any difference whether the father is the one tmveling Or the one staying JH,hind in the homeland. It is also stipulated that the way and the place this one is traveling to JH, safe. This is JH,cause the father is the one who undertakes disciplining and protectiug himJher as hest as possible. So. if the father were to be away from his child, he would not be able 10 undertake this duty and thus the child would he 1051.
On the contrary, the mother is more entitled to the custody of her child if either of the parents travds to live in a near place, the distance of which is less than that of shortening prayer. 11 does not make any difference whether the mother is the One traveling or the one staying behind. This is because she is more merciful to the ward and in such a cast' the ward's father can look after him/her. However, if the travel Was for a certain purpose after fulfilling which the one traveling will return, then the ward is to be kept in the custody of the one staying behind of either of the parents. This also is to be applied in case th e place of travel Or the way is perilou!;, This is be<:ause taking the ward alollg in sl.Ich cues may cause harm to him/her. With regard to this. Im'm IbnwQa)'l'im (may Allah have m."y on him) said:
"It is a trick contnulicling wMtthe Lawgiwr intends that a falh~r intentionally tnlY/'1s to tab his child away from hiJ/h., mother to deprive her from the right of thechildhuslody. The LawgiVt r decru d that the moth., is more tntitl~d to haw the custody of nU child than Ih. father in eau they live nea r tach other and it is possible for them (the fatktr and the child) to meet at Qny tirnt .. :'

Ibnul-Qayyim then .dckd:

"Thf! Prophd (PBUH) said Ihal wh~wr 5ef'<lraltJ a mother and htr child, Allah will separate him from his ~lovtd persons on Iht Day of Resurru tlon, Moreover, the Prophet (PBUH) fo rbade stlling a slaw w" mon O/Ollt withoul htr child or vin wrso, tven if th.er al? both in tht samt town. ThUs. it is mOrt deser ..ing to be forbiddtn flwl a fatht. mabs a trick to stparole /H:twan 0 motl1er And he. , hild in such a way lhat ;1 beromtJ hard for the mother /0 s.... , mtd and bea. Ih .. obsen'" of her child. This is /00 hl1rd for her; thus. the judgment of Allah I1l1d His Mtsullger is Ihe worthit SI to be followed; tht rnothu is mort t lllitlt d to kl1vt Ihe custody of th e child. wheth ..r the fl1ther travels Or $lays lit hom t . To illustrate. the Prophet (PBUH) said to a womall. 'You have mOrt right 10 him as 10llg <U y<JU do 110/ mI1Tr)': Thertjore, how is it reAsOllabl.. /" sa)' IluIt the nwther is mal? tnlilltd to hA .... th .. custody of her child as long as Iht childsfalher does nal trAvel? Surtly. this vitw is 110/ SUpf1Mttd b)' 1111)' t .. jtkllct from Ih .. Glorious Qurilll, lite SUllnah (Tniditioll ) of/he Ma~ngrr of AI!.lh (PBUH), Ihe falwas ' of rh e Prnphds Comp<llllon Or rh .. lIulltelltic olllllogicul deductioll."

The Child's Right to Choose between His/Her Parents

' Umar and 'All (may Allah be plea=! with thtm bolh) decrttd rhal a ~ge of seven ~nd being~, can thOOK 10 sl~y wilh mhrr partnts. Th is view is assened by rht fJuJith rdatn:i by At- Ti rmidhl ~nd other cDmpikl"ll 00 Ihe authority of AM Hunyrah who narrated
thUd, at

mt

"A. WClmall camtla Ihe Prophet (PBUH) IIlId $Uid. 'M)' husNJlld wants to takellwllY m)' son (afterdil'Qrcing me).' The Prophet (PBUH) said ID the child, 'This is your fllth er and Ihis is your mDlhtr, 50 IlIke tht hl1l1d of any of Ih~m wham yau lih mo.t: The boy loolc his mothers h,,"d olld sh e _lit away ",llh him.~'
Thr aforesaid b.wlilh signifteS that a child, if abI~ 10 discern, is 10 t.., given t~ choiu 1 512y with fithtr p;a~nl (in case of divon:f). Whtn a child =u;hrs 0 the age of discriminalion and ltans 10 "'ithtr p~nt. Ihi, mnns lhot th~ onc chosen is mor~ mfrdful lo th~ child than Ih~ uth~r. Th~ child is onLy givm such a choi,~ whfn two conditionl art fullill~d;

'"

VlII BREASTFEEDlNG

First: Both parents must ~ entitled to have the custody orlhe child.

Second: The child must be s.ant and if not SQ, ./he is tn st ay with the mother who is more mercifu l to him/he r and knows ~uer about hisl her in tereS!5.
If a sane child chooSl:s the father (as guard ian), slhe stays with him day and night, to protect. instruct and educate him/her. How.". r, a father i. not allowed to prevent the child from visiting his/her mother. for this may render the child undutiful and mak/, him/her sever tkl; of

relationship. If a child chooses the mother, slhe is to s!'('nd the night with her and the day with his/h er fath er in order 10 educate him/h er. If a child chooses neith er of the parents, then lots are to k drawn in
order to see who receives th e custody of h im/her, as this is the only way to prefer one to the other.

The fathtr is more (ntitkd to hav~ the custody of his daughter on c( she is ..,nll, for M i. more able to protec.t Mr and has more right than anyone dse to M her gund ian and this is to continue until she is married. However, the mother is to M penn ined to visit her daugh ter in case no evil might happen'. If the fath ~r is not ahle to protect hi~ daughter or that he neglects her due to his bei ng busy or impious, wh ile her mother is apt to preSl'rve her wen, th en th e daughter i. to stay with her mother.
Shaykhul-IsIAm Ibn llIymiyah (may Allah have mercy on him) says:

"Imam Ahm~d ~nd his follow ers give tht father preeedena over the motht r with rtg~rd to the custody o/their daughter in C<Ut this ~ not ca ...t her ~ny harm . If the jmher is "ot able to protect his daughter or that he n.-gleets her due to !>eing busy and the mother is uble 10 take Clm other and protect her, then sile (the mother) is 10 take prtctdenct D~er Ine fathe, in regard to their daughters custody. Thus, if the daughter may "ot be safe with one of th e two parents, then the other P"rtMt is surely more entjtled to keep her in his/her custody'-'
Shaykhul-Islhn lbn Taymlyah, (may Allah have mercy on him) also said:

marries another woman who causes harm 10 his daughter and n.-gleets !he girls inte ....ts while the mother observ"" the girls inlemts and dMs not hurt her, th~n definitely tilt mother has 1II0re right to have the euslody of 11: daughla-."
And Allah knows best.

"If the fmhIT

."
Endnotes
I SH: 'I'JoIm AI-M~-..w I" (lIl95 ). 1 ""'_ "lrpl opinion ~ '" a .....jII Ill. Muslim IChoIar <pIoli~ in u.uing ItpI full".] in m.po<I 10. layman" queotion on . point 01 Ihr IiLamIc law. 1 AbO DlwUd (2277) [U490]. Al -Tirmldhl ( 1l6 1l [l/6JII I. An-Nad1 (l496) [31497 1. on<! loo Mtjah (ll51) 11I111 I. 4 !hi.;" becau.. .tter d ivofC" . it i. nOl . lIowed till ' the mOlher M in priva<:y with Ihe f.,htr.
$ Stt 'Majm,; u/ F.lld,...t (WD I ).

CHAPTER

The Wife's Alimony

/lIrisprudenlially. alimony refen 10 the maintenance one provides to whom one financially supports in tmns of rood, clothing. housing and the like, accordi ng 10 what is reasonable.

Malntalni", one'5wife. in ICrlTl5 of food (provision), clothing and bousing

of the same quality as that of ou.c,r similar womtn. tomes at thr top of onc's dUlieot toward her. For Allah. EDited be He, says:
"Ld .. II\QiO 0f_Alt" sptrulfrom hh ..,..,Irlt ...

(Qurln: A.t-IaJi q: 7)

And He tI.so says:

", .. AM due to dum {I.~., ,~ ",lilt" ] 11 , lmU"r to wlult is upectul <lf'Mm, acconll"g to w,",t is ""<UOMbI' ... (Qur'in: AI.Baqarah: 228)

502

VIII BREASTFEEDlNG

Moreover, the Prophet (PBUH) said:

"Their rights upon you ~'" that you should prGl'ide them with provi,iQn ~nd clothing in ~ re~$on~ble manner:'
(Rdattd by ImAm Muslim and Abu D!wUd) Shaykhul-Islim Ibn Taymiyah (may Allah ha,..,
m~rcy

on him) said:

"The Qurimic verse ~ . And JUt to them (i.e., the wiyu] i. nmilll1' to what 1$ e~ecled of them, IICcording to what 11 UtlS<J_"le.. .' in~lycs all rights of the wife and other right, she is 10 do. Tllis maUer can be judged according to what is commonly acknowledged and reptmed among ptoplt,"
When there is a dispute l>dwec:n the two spouses, the judge estimates th e amount of the wife's alimony according to the final\cial level of them both. whether they both are rich or onl), one of them is rich. Thus well-off wife who is married to a well -offhusballd is entitled to have a sufficieTlt amount of provision of the sam e quality as that of similar women in that town; the sam e is true for dothing and furniture. Likewis... a poor wife with a poor husband is entitled to have a sufficient amount of f<><>d, clothing and furniture of the same quality as that of similar women, However. the wife of the middle class with a similar husband (of the sam~ condition s), a welloff wife with a poor husband, and a poor wife with a wel l-off husband. are entitl ed to have the maintenance of the average level. according to the known customs. Moreover, the husband is to provide for what his wife need, ,uch as water for personal cleanliness, drinking and purifICation, etc. Howe,,,r. the husband is not to provide the aforemention ed nee<is if they al'<: no longer married. Once. wife is divorced and be<:omes in her waiting period. the following cas<:s al'<: to be obsuved: A revocably divorced wOman i~ entitled to be maintained by her husband as lnng as sh~ is in her waiting perilXl. as she is regarded as a wife. This is beeaus.. Allah, Exalted be He, says:
~... A"d

this [period] ...n

their hus"'mds htwe man right 10 take them bock in (Qurln: Al-Baqarab: 228)

A major or minor irrevocably divorced woman is not entitled to any financial support or housing by her husband. This is ba~d on the /ladith narrat ed in the Two Authentic Book.. of Al -BukMri and Muslim th.t when the husband ofFAlimah BintQays (may Allah bc pleaSld with her) irrevocably divorced her, the Prophet (PIlUH) said to her:

"There is ntither alimony nor IlJdgi~gfor you.-'

SO)

With regard to this. the great scholar Ibnul.Qayyim (may Allah hav~ m ..,y on him) said,

According 10 the authmtic Sunnah (Tradition) of the Messmger of Allah (PBUH) which agrees with the Glorious QuraM, ~n jrrrvoc~bly divorced woman is not enlitled to any aUmony or lodging. This also comes in ,onformity with the analogical deduction tmd is the yiew of the scholars of Hadith as woll:'
However. a pregnant irrevocably divorced woman is entitled to alimony, for Allah. Enlted k He, says:
~. ,And

if they should be pregnant, thnl.pmd an them until they

(Qur'~n:

give birth ..~

And He, Exalted be He. alS<) says:

AI-IaUq: 6)

-Lodge them rin a stetlon] of wh""" -""" dlnll out of-""UT ..... am ...

(Qur'an: At-IaMq: 6) Moreover. the Prophet (PBUH) said to FAtimah Bint Qays;
'Ther~

is no alimony jar you except ifyou are pregnant.~'

This is because since the husband is the father of the unborn child. he then is to financially support it and this cannot be achieved except through maintaining the mother. Concerning this view. Al~Muwaffaq and other s<:holars oomm~nt~d saying:

"This opinion is unanimously agreed upon by all .cholnrs. HOMwr, they entertained different views concerning whtthtr alimony is paid for th e fetus itsdfor for the womanjor the sake of the fetus?"
With this in mind, th ", issuoes invol""d in the aforesa id two opinions are summariz~d in numerouS rulings explained in books of jurisprudence and legal rulings.
A wifoe is not entitled
(0

maintenance by her husband for severalr<:3sons

as follows:
When the wife '=ps hersdf away from her husband. then she is not entitled to hoe maintained by her husband, this is becau"", in such a case, he does not ""xually enjoy hoer and he is to maintain her in return for enjoying her. The same is true when a wif~ shows disohedi~nce to her husband, i.e. disobeys her husband in doing her marital duties, such as refusing to allow him to have ""xual intercou rse with h~r, refusing to move in to another suitable

VI II BREASTFEEDINC

house. or leaving his house without his ~rmission , In such CU(S, the wife is consld~""d d~itnt. as ht cannot enjoy her. Thus, she is not entitkd 10 receive her alimony. for, u mentioned bdo,.." he is to maintain her in return for enjoying her. I'urthermo"", when the wife keeps herulf away from her husband by traveHng for some purpoK. then .she has no right to ~ maintained by her tuubaoo, for, in sud,. cu/:, he cannot enjoy hn. Morrover, a widow is to be pl'O'Vidtd for by hel'$df or whoevrr is ruponsibk for her if she is poor. Th i$ if beame she is not entitle.:! 10 ha~ the alimony OUI of her husbands estale, which belongs then to his heirs. A pregnant widow is entided to be maintained from the est1lte of her husband, if he has left any, due to the existence of the fetus; if the deceased husband has left nnlhing. the wdl-off among the fclu~' legal heirs (in case the fetus dies) is to maintain the mother.
[t

is ~rmiuible that the twos.pousrs aglft that the maintenance ~ afforded

in advance Or ~ delayed either for a long or a short time; they have the full ri&hl to do so. If they diu.gn't' (concerning when to par maintenance), the hU5band is to pay tht maintenance at the beginning of the !by. It is permissible to IY it In grain, ,fthey agree 10 do so, bUI U it requ i""s a great deal of tffOrl, she has the right to accept or rdu5<: the maintenance in grain,

I""

Likewise, the husband is 10 provid e his wife with Ihe annual clothing at the beginning of every year. [fthe husband is a~nt and has nOlleft the usual maintenance for hi.! wife: or ifhe is present but hu not given ttu, maintenance 10 her. then he still has to give the pnvious delayed maintenance. for it isstill ha right which the husband must give in ease or hardships. This righl doa not become invalid 'With the passage of time.

The hwband is to "art maintaini ng his wife once she allows him to cn}oy her in the marilal life. J( he is unable to financially support her, it is ~rmissible for her to nullify the mar riage cn ntract. This Is based on the hadllh AbO Hurayrah (may Allah be plea5<:d with him) narrated that the Prophet (PBUH) said concerning a man who cannot fmancially support his wife: "'1'My are to ~ ~JNlrrlfed (by di",,,,:t)." (Related by Ad Dir'aqutnl)
This is also lSKrted by I"" following ~ U Allah, the Almlghly, ")'I.

... Tht,. [af tt . thIJtj, either ktq [hlf} i,. IJn Muptabu ..... 0, n ltast [htrl ,.,Ith good tI'i'IJ/lfItnl ..- (Qu r'A n: AI-Baqarah: 229)

,.nt.

Ch.pt,,~:

The Wife', Alimony

Undoubt~dly.

keeping a wife without financially supporting her is not an

acceptable

mann~r.

If a well-off husband is absent without leaving suffici~nt ,""p"nditure to his wife and she cannot take it from his estate or borrow it to hi. debit. then she has the right to nullify the marriag.e contract by the p"rmission of the judge. If she is able to take from his estate. she is allowed to take the amount that suffices her. The evidence of this is shown in the hadith related in the Two Authentic Book. of AI-Bukhari and Muslim that when Hind Bint 'Utbah told the Prophet (PBUH) that her husband (AbO Sufyan) does not givr her sufficient money, he (PBUH) said to he"
"Take what i5 sufficimt for y<lu and y<lur children, and the amount shauld be just and reasonable:

In view of the aforementioned opinions, we realize how perf""t the Sharf'ah (Islamic Law) is in rendering every right to him who is e ntitled to it. This is in fact the case in all its wiu legislation . Shame on tho se who replace the Divine Sharf'ah with the human laws! Allah, Exalted be He, says concerning such p"0pk
"u. Then illt the judgment of {the time Of) ignorance they d.,.ir"r But who is !>ttter thlm Alluh in judgmmtfor u people whu un c...-tain {infaith/." (Qur'An: AI -MA' idah: SO)

Endnotes
I Mu.lim (2941) [414021 ...d Abii Db'lid (19'05) 1213121 _

2 See: 'M~jmcl 'u/-Ftl/JwJ' (341132).

3 Muslim (.1682) [513381 _

4 &t: 'ZMul-Ma'd<f [5/470-m J.

S AM Dl Wlid (229(1) 1214961 , An Nul'l (3222) jJ/3701, and Mu,lim (3M3) [5/3401.

6 Ad-mraquInl (3742) [3/).061.

CHAPTER

Maintaining Relatives and Possessions

Onc's dose relatm. he~ refer to those who are entitled to inherit from one either by virtue of the prescribed shares or by being an agnate relative.
Pon~sions

refer to those who are under onc's possession, slaves or animals.

When one's relatives are descending from the two origins oflineage, i.e., parents and grandparents of the maint.ainer no matter how high they a"" in ascending lineage. or children no matter how low they are in a descending lineage, then it is obligatory to maintain them. provided that the following conditions are fulfilled: ,.. The maintained persons must be poorwho possess nothing, or possess insufficient provision .. while being unable to earn their living.
0}

Moreover, the maintain.,r must J,., wdl-off who poss= abundant provision for himself, his wife and his daves (if any),

VIII BRf..OSfFEfl}ING

-> ->

The maintaine r and Ihe m aintained p""$On& must be: of the same religion . If the maintal n.,c pe rso n(s) is not among the maintainer', forefathell or offspring, then it is l1 ipu lated. in addition to the above- mentioned conditions, that the maintai",,. mu.t bC' entitled to inhtri! from the maintained one.

O ne must maintain OM'S pa.rm .... accord ing to whal Allah, Exalted be He. says:
". .... /UlIO ~lIlsdo pod ...~

(Qu"" n: AI Baqarah: 83)

Needless to say that maintaining one's parents Isone of tbe best wa~ to do

good 10 Ihem.
The evidence that the father must maintain his children is ~wn in the

nobk verse as Allah, the Almighty, says.:

~... Upon

lite I"'M, " Ilteir [i.e., Ihe mlltkn'/ P"'lfiu.m <lnd ,luir doIltl" , IKCOrdint'D ""'AI is DuqIDble.... (Qur'A n: AI-Baqarah: 233)

The noble verse ilates th the father is to provide his wife with provision and clothing in an a"epuble man nor as followed with similar women in their town. in a(coroa nee wi th the husband's fi nancial conditions with no lquandering or niggardliness. Wit h regard tn this. the Prophet (PBUH) said:

"Tab what iJ JlJ.f fidt ntfor you Dnd )'Our (hildren, .:and the amount should ~ jusl /lnd ,"uontlb/e.~
Onc is to maintai n the penon onc is to inherit by vir1ue of the prescribed shares or by agnation. The evidfflCe to that is ' hown in the verse as Allah. Exalted be He, says:
f~thu] ... H

... And "pon tlt e lf~lhu'JJ heir is (a dUly} Jib Ihal (o/'he (Qurln: AI _Baq arah: 233)

This is because the kinship betwttn the inheritor and the inherited person necessitates that the hei r I, the most entitled person to the inheritor's estate than any OM tIse. Thus., the inherited person is moreffitil led 1 Ix maintained by the 0 inhrrilor nOl by Iho5c who ar(' not mtitird 10 inherit him (Ihe inherito:d person). In ronsKkration o f this wrse:
~. .. And "PO"

Iltt lIathtr"/ Irt ir i. [Il d",y] like Ihlll /", lhe ftlllr err (Qu r'An: Al-Baqarab: 233)

Allah, Exaltrd be H~, mnn. that th", one who is ~ntitlrd to inh erit a child (in case this child dies) is to maintain this child the same way as the child's father would do. Morwver, Allah, the Almighty, says:
":_ .Alld gnoe tlu mati"" his right ..
H

(Qur'An: Al Isr1': 26)

The ... are many other ~videnc~s signifying that the afflu~nt person is to maintain his needy relatives. In this connection, AbO D~wfld related:

1!. man asked the Prophet (PBUH), '0 MtsSwger of Allah! To

whom should I show killdlless?" The Prophet (PBUH) said, 'Your mother, your father, your sisl", aMd your broth",: -'

It is also relatrd by An Nasal, on the authority ofDriq AI-Muharibi, and by AI-HAkim, that the Messenger of Allah deemed a ~hlb. (authentic) (PBUH)uid:

uaaltu

... Start giYingfirstto your dependelllS: your mother, your falher, your sister. your brother, and then your dosest relatiyes according
10 dOSfIlW.-'

This lladlth ""plains the noble ve,..., that state.:

". Alld give the nEatl"" his right ...H
Th~ fath~r

(Qur'An: AI-bra': 26)

solely is to fully maintain his children, for the Prophet (PBUH) said to Hind Bint 'Utbah when she complained of her miserly husband:
"Take what is slljficient for YO" and yo"rchildrtn, and the amount should be just and reawllable.-

This noble I:Jadlth signifies that the father solely is to maintain his children, a ruling tbat is assertrd by th~ nobl~ v~rSe:
". upon the fathed. their {i.e., the mothers'] provision ond their clothillg according to what Is I!(ttptl!IIJe. ~

(Qur'an: AI-Baqarah: 233) And the noble ve,...,:

" And If th ey IIreastfttdfor yOIl, then give them their payment ... " (Qur'~n: At-Iallq: 6)

This implies that the father is the one who must maintain the brea.ifttding baby. not th~ mother. M for the poor per:son who has well off relatives, excluding his father, they sha,.., in maintaining him according to the amount of thdr shares of inheri-

VIJI BRf.ASTFHDING

tance from him. Thi$ is because Allah, Exalted be He, has ",latt<! the maintenance to the inheritance as in the noble verse:
".,.And UpOIl the [fatlu:r',] heir;' ]Il duty] /iU thllt (of tM fatlu:,/.,."

(Qur';\n: AIBaqarah: 233) Thus, the amount of maintenance is to be proportional to that of the inheritW estate. Hence, whoever has arichgrandmotheranda full brother, the former is to und ertake onesixth of his (the inheritw person's) mainten.nce while the mt is to be undertaken by the latter, as they inherit him aaording to the same shares, and so on. As for the maintenance of slaves and animals, thdr master is to maintain his slaves in terms of food, clothing, and howing in an acceptable manner. This is bast<! on the badith in wh ich the Prophet (PBUH) says:
"/I is esul/tial to feed the slave, (wthe him (properly) and not to burden him with work which is bqond his power:

(Related by A.h-ShMl't in his MusHad (Collection of Ascribfd HadHhs)) It is related in the two authentic books of Al-BukMr! and Muslim thatAbil Dharr (may Allah be pleasfii with him) narratt<!:
"The Prophet (PBUH) s/lid, 'Your slaves are your bmthe .. (in [slam) and Allah has put them uHder your command. So whoever has a bmther uHder his command should feed him of what he Mts and dress him of what he "",a ... Do not ask thtm (.Iaves) to do thing. beyond their cap~cities (power)."'

This is also asserted in the noble verse as AUah, the Almighty, Sllys:
.... Wt ctrt~in/y kn"w what W~ have madt the o!>Ugal"ry uP"" Ih ~m c.,,,cerning Ih~ir wiv~. and those Ih~ir right hand. po ..t .....~ (Qur'an: AI-AlvAb: SO)

The..., texts signify that the slaves' maintenance is obligatory upon their masters. If a male sla..., a.5ks ~rmission for marriage, his master must either get him marrit<! or sold, for Allah, Eultt<! be He. says:
"And marry eht unmarried amoHg JIO" and th~ righteous a....,ng JIOur mal ../aveJ a",lft ...aJ..lavu ,~ (Qur1n: An Nur: 32)

Chapter ~, Maintaining Rdati~ ,od """""-i",,,

~ 11

The imperative statem ent in the aforem entioned ve= implies obligation when requested by the concerned person. Likewise, if the same i. asked. by a female ,la>"" her master i~ gi>"'n a choiu as to have u xual intercoufS.< with her, get her married or sdI her to ""litve her of any harm. Wh(l(ver OWns an animal is to feed it, provide it with water, and do what i. good for it, for the Prophet (PBUH) says:

"A woman was puni$hed because of a cal which she had imprisoned until it dit d our of hunger. She neither gave it food ",or water, nor sel it free 10 ealfrom rhe ~ermin of the earth."
(Related by AI-BumMt and Muslim) This /wdith signifies that one is to maintain onl s animals, for the said wOman was admitted to Hellfi" due to leaving the cat unfed Or maintained. If this is the case with a cat, then other possessed animals a"" more entitled to he fed and maintained. Furthermore, it is impermissible for the owner of an animal to overburden it, or 10 milk it in a way that harms il.'l off'pring. The Prophet (PBUH) says:

should not harm othe", nOT should one seek benefit for himS>!/f by causing harm to olhe",:
"Ol1t

Moreover. it is prohibited for the owner of an animal to eu=, hit or brand it on the fact. If the animal's Owner is unahle to maintain it, he is to he forced (by the judge) to have it sold. hi"d out or slaughte""d, if il is lawful to he eaten, ..s keeping it without maintenance is an act of injustice that must he eliminated. And Allah. Exalted he He, knows best.

Endnotes
t Ab" Diwiid (5140) [5/221]. 2 An_Nad', (253 t ) [3/65]. AI -Jj~kim (7327) [411491. rnd Abii Diwiid (SiJ9) [51220). 3 AJ-BnkMri (2545) [5/21 ( ) a nd Muslim (429t) (6/t36). 4 Aj-Bukhi rt (3482) [61629 ) a nd Muslim (SSI3) [7/459) _

IX.
(LEGAL
.T,VT

CHAPTER

Murder and its Types

/';jqths defl ne crime as one's transgression agatnsllnolller's body, pro~rly, or bono . They have spifird "iM Book on Crimt$" for the rulings on the fint kind, which is transgression against IOmtOtIf. body. and "the Book on Pmaltit$" ror !he s.econd and tM third ont$, ru.mdy ~on ..gainK SOmwntl p.O l1 and that apimt somfOM', hor>Or. pd

1m act of assaulting son"!on~:s body is the act that obligates qis4s. (legal retribuTion), diyah, ' or expiation. MUJli m .mo/an unanimously agree on the prohlbltlon 0( ,aklng a ~rson's lif. without right. The proof of this prohibition
iJ dtrived from both the Ever-Glori ous !look. the Qurln, and the (Prophetic: Tradit ion), Allah, Exalted k He, s.ays:
S~""~h

"And do Itot /rill the ..,lIl l i.r. pentJnJ ...hlth AII"h uupt by rlp!...-

"tu forbidden,

(Qur'f,n: AI An 'lm: 15 1)

,,,
Mo~ovcr,

IX Q!sAS(LEGAL RETRlBvnQN)

the Prophd (PBUH) says:

"The bwod of a Muslim who Itstifits that there is no deity but Allah and that I am His Messenger U ltlnot be shed exupt in One of three cwes: the case of a married person who rommits adultery. in qii<1.! (legal retribution) for murder, Imd the one who reverts from l>1am (i,e. apostates) and /blWS Ihe Muslim community."' (Related by Muslim and other compilers of HadUhj
There are various lIadith51hat carry the same meaning of the aforemen-

tioned one.
Therefore, whoevertakrs the life of a Muslim intentionally and without right, Allah, Exalted be He, will punish him severely in the Hereafter, as He says:

"But whMwr ki'IJ a I>tlltwr inttlltioIJlllly - his ,ompen,e is Hell, wll..,....; .. he will abi,u dernally. and Allah Iuu Meum"

angry with him and has

great p.mishment.
H

""'M him /md has prepaml for him

<l

(Qur'an: An Nisl': 93)

Such a murderer is regarded as a d efiantly disobedient person, as he commits one of the major ~i llll, namely munler. Still, Allah i5 the One to judge such a pc:rson; He will punish him if He wills or forgive him if He wills. Allah, Exalted be He, says:

AIIIIh dots not forgillt _""iQtion with Him, but Ht forgillto what io/nJ than thm for whom He wills. ~ (Qur'An: An~NisA': 48)
Hence, such a sin, murder, may bt forgiven, as it is leSiler than associating others in worship with Allah. This is the case when the murderer does not repent. t>~1 ifhe !"<"pentI-, his ...,pc:ntaru;e is accepted, as Allah, Exalte.;! be He, sa~:

~lndud,

"Say, '0 My JtrvalltJ who h<lllt traJUgn'SJM agaillit thenut/""" {by sillllillg], do "0' dupuir of th~ m~n:y of AI/w.. IlIdud, A/lllhforgiv.eo1111 sillo. IlIdud, it io H~ Who is the Forgivillg, the Mercijllt.' ~ (Qur'An: Az Zumar: 53)
However, the right of the murdered person is not dropped in the Hereafter by the repentance of the murderer. The right of the murde...,d pc:rron will bt taken from the good d e<:ds of his murderer according to the wrong done to him, or Allah will grant the murdered person good deed. out of His bounty, i.e. without taking from the good de<:ds ofthe murderer. In addition, the right of the murdered person is not dropped through qi1dt (legal retribution), as

a...e.. I,MwdcrandluT1J><!

517

$llCh ~ribution i~ onJy thc right of the family of thc murdued penon. In this respect, lbllul -Qayyim (may Allah ha~ mercy on him) said:
"Thtrt art thru righ ll >tlatlns to murder; tht firs! btkmgs to Allah. tht rl!l'OM to tht murdertd /Hrum, und the third to thefmnily ofth~ murdt mi /Hnon. Hcnu. if tht murdtrtr gin> himuif u.p to the fumily of tht murdt rtd /HruJ" , showing rwrl, jN. of Allah. "NI sincvt ~ntana, Allalrs .1gItt will j,., droppeJ and tM right of fht fomil, of rite murdtrtd pason will W droppd whm Ihe qilAt (kpI rtrribution) 0' UC"QllriliDtion is"pplial.1ls rtgQrds tM right ofthe murdered ptrwn, All<Ih will com/Hnsatt him "n rlre whlllf of tire rYPf'" I"nt mu~r on rht Day of Rejurmt;Qn und rtcOncil~ btt"""l" thtm "5 well.-'

Types of Murder According to the majority of Muslim lCbola .... there Ire three kindsofkilling; Premniitatcd murder Quasi-premniitated murdn Mlndaughter As for the premedi tat ed kill ing and manslaughter. tm-y I re $Iated in the EverGlorious Book of thc Qur'h. Allah, Exalted ~ He , SI)'I:
-And newT is it for" bdlnon to kill " btlle~r Q"f]t by mist4ke. And wh_r kill. " w/levno by mlJlilh - Wn tlw jrw'ng of " IxUntlng.H4-.e "rid" ","'J>DI$lItiOfl /HIymcnJ (diyGhl presmled I" /l1J /lA. lhe dHNd',/ Jamy /iI requirall u.Utu till]' gm {up right "'''1 dtllrlly... But .m..n...r ki'" " /Id! 41 __ ;>JIentWlolllly - his rrcompnue b HtI/, ~,d" abidedemllllJl andAuw, h... beromt ""J7Y wl,,, "Im II1Id "... CllrutJ hi", "lid "... ptqHJ-'

,"rir

he.nu

forh/m agreat pllnl$lrmtllt.-

(Quran: An -Ni,~': 92-93)

Co ncerning the ruli ng on quasi-premeditated murder, it is stated in th~ hOl1Qrable Sunna/' of th e Prophet (PBUH). For example, . Amr lbn Shu ayb ""POlted on the authority of his father and grandfather ces~cti~ly that the Prophet (PBUH) said: "The diY'lh (blood mtmq) /Of qlUUi-prtmedit<lfed murder is 10 bt ",.,de m much m thllt fqr pcemeditated munlv, bill the <culprit in tht former a.se is riot to bt killnL 5<lt"n (in qUll$i.p"",,,edilllttd murder) insinuatej Jlfl"pk "nd lht n blood is sired blindly without ""Y prtVious ma/iu "Twt"pon." (Related by Ahmad and Ab,; mwUd)

IX QfW(LEGAl RETRIBUTION) Morrover, 'AbdulUh Ibn 'Amr (may Allah k that th~ M~nge r of Allah (PBUH) said,
pl~a..,d

with him) narrakd

"The diyah (blood money) jo~ quasi-premeditated murder; such os that committed with 0 whip or a stick, is on~ hundred camds, forty Dj which are pregnant."'

(Related by the Five Compilers of iIadlth except At Tirmidht) Premeditated Murder

It is the type of murder in which one intentionally kills a human being while beingawarethat his blood is inviolable - by attacking him with something fatal. Thi. ddlnition involve. that the ca.., i. not r~gankd as premeditated murder unless the following conditions are met:
I) Ha,ing the intention of killing 2) Being previously aware of the inviolability of the victim's blood as a

human being
3) The weapon or the tool used is a fatal one, whether it is
s~cified

for

killing or not. Therefore, if one of these conditions is not present, the case will not b<: "'garded a. p",meditated murder. This is b<:cau.., the abs~nc" of intention d~, not obligate qQ~ (l~gal ""-ribulion) , and the ocwr",nce of duth with something that i. not suppo..,d to be fatal indicates that deatb may have been due to something et.., ... scholars ag=d. According to induction, the", are nine forms of premeditated murder: [. The murder<:r wounds a person with something sharp and body ~netrating, such as a knife, a spike, or the like. In this regard, Al Muwaffaq said, "As far as "'" know, there is no juristic disagreement among scholars on this ruling (i .... killing using surn tools is deemed premeditated murder)." 2 The murderer kills a person with something heavy, such as a stone and the like. Ther<:fore, if the st<lne, for example, is small, the caSt will not b<: regarded as premeditated murder, unltss it is intentionally aimed at a vital spot of the body. Similarly, it will be regarded as premeditated murder if such a small stone (that usually does not cause death) is used while the victim is in a state of weakness, illne .., youngness, oldness,

519

coldness, hotness, and the like. The .ame appli es when the murderer repeats the action of beating the victim with such a small stone or the like until he dies. This is also similar to the cases when a person kills another by letting a wall fall on him, hilling him with a car, or throwing him from 11 high place.

3- The murderer throw. a person to a deadly an imal, .uch as a lion or a serpent. Thus, if one intentionally throw. another to such deadly creatures. the case i. d..,mN! premeditated murder, for such c,..,alure. are generally known to be kilkn.
4- The murderer throws a person into fire or deep water, which may cause

him to drown, while thevktim cannot escape from them.

5- The murderer strangle. a person with a rope or the like or stifles him

to death. 6- The murderer imprisons the victim and deprives him of (ood and drink until he dies, being imprisoned for a period in which anyone is supposed to die out of hunger and thirst if they do not find food or water. Such a care is consid erN! premeditated murder. 7 The murderer, knowingly, uses sorcery or black magic that often causes death to the victim.
8- The murderer knowingly makes the victim drink poison or cunningly

mixes it with the victim'. food while the latter is unaware. ,- Some witneSSl:S falsely testify against someone causing the latter to be senteneN! to death, as in cases like adultery, apostasy, or premeditatN! murder, whose penalty in I.lam i. capital punishment. Such witnesses n e regarded as murderers, as they intentionally k ill a n in nacent p"rson. So, if they renege on their testimony or if their plot is disdosed, they are to be . entenced to dealh as well.

Quasi-premeditated Murder
According to faqlhs, quasi-premeditated murder oCCurs when somwne kills another with th~ intention of causing him harm Or injury, not d~ath. Such a case is regarded as quasipremN!itatN! murder whether the murd~re r's purpose i. aggression or mere disciplinary punishment, as the offender ~xceeds the limits in doing 80 until it results in death. It is call~J "quasi premeditated murder" as the perpetrntor just intend. harm or injury, but he unintentionally kills th~ victim. In this collnf<:tion, Ib1\ RU!hd s:lid:

IX Q1W(LEGAL RETRIBUTION)

"As for the one who inte~ds harm to another person and striw him with something genually nonfatal, the ruling wavers bd_en intentiona/ and unintentional killing, 1t is similar to premeditated murder as the perpetro.tor intentionally ~ats the victim, and it is similM to manslaughter as he beats him with something that is generally not intended to CaUst dtmh."
Among the examples of quasi -p"meditated murder is the case in which one strikes a ~rson in a non -vital bodily spot with a whip or small .tick, Anotherexampl e is the ca~wh en one punchesanotherwith the hand inanonvital spot but it "suIts in the latter's death. Such cases are "garded as quasipremeditated murder that obligates expiation taken from the perpdrator's money. The expiation for quasi-p"meditated murder is emancipating a slave; if the perpetrator does not have a slave or cannot afford to buy one to emancipate, he must perform fasting for two consecutive months, just like the case of manslaughter. In addition, binding diyah (blood money) is to be paid by the murde"r'. agnate " Iat;"" . To illustrate, AM Hurayrah (may Allah be pleased with him) narrated:

"Two women from (the tribe of) Hudhayl fought with ear;}, other
and one of them hit th e other with a stone that killed both htr and the fetus she carries. The killerJ agnate relatives and those of the victim submitted their case to the Prophfl (PBUH) who judged thM thediyahfor the murdered woman was to be paid by the murderers agnate relatives,-'
(Related by AJ-BukMri and Muslim) Hence, the aforementioned hadith .how. that 'li~4!. (l~gal retribution) is not obligatory in the caSe of quasi-prem~ditated murder. It also indicates that th~ diyah is to be paid from the w~alth of the murderer'sagnate relatives. Since it is conSidered a murder that doe. not obligat~ 'li~4!.. the diyah is to be paid by the murderer's relatives just lik<. the ca~ of manslaughter. In this reganl, IbnuI-Mundhir said, iW Mudim jcholars unanimously agree that the diyah (for quasi-prem~ditated murder) is to be Pflid by the murderer. agnate n:latiYe!.-' In addition, A1-Muwaffaq said, "We know no juristicdisagreemtnt On the ruling that the diyah (jar quasi-premeditated murder) is to be p.lid by the murdertrJ agnate reJali~s: ' The same opinion was adopt",d by other sch.olars as well.

a.a,.... I: Mwdo< ""'Il l.. T)'pOO

MlIUIll.ugbtef Aeoording toflUjlhl (may All.hhave mercy on them), manslaughter occura when someone kin. an inviolable hu man being by miJtrn wh ile doing something permissible for him to do, such as shooting Or hunting. The same applies when a MU$lJm kills a fellow Muslim in a ~ttle, thinking he is one of the disbclie~ra.

The ruling on Ihe intentional murder committed by. child or an insane pel"$Oll is Ihe same aJ that o n manslaughter. This is because the condition of inlention is lack.ing in cue of such persons (due t o their lack of mental maturity Or soundn6S). ThU$, Ihe premeditated murder of I. minor 01" an inPlle is regarded a..o the mansJl.ugh~r of a legally I coountabJe person.
Ukewt.e, the ruling on kill ing due to being a ca usative factor is the ume as that of manslaughter. Foru.mple, when onC digs a"Wtll or a hole On a road or a stnet and another falls therein and die!, or when one stops a car on the roltd or I. street and one crashe. IpIns! it and dies, the ruli ng in such casn is the _ IS that of manslaughter. The apialion fOT mansbughlCl" is obligato ry to be taken from the wealth of the mun:lercr; the api~t ion for it is the emancipation of a bdining Jla~, and if onc does not have one 01" can not afford to buy one to emancipate, then he should perfonn f..tl ng for two consccuti~ months in$tead. Mon~o~r, th e diyah for manslaugh ter ls obligatory 10 be paid by the perpdrator's male agna~ relatives.

Furthermore, if a Muslim klllu Muslim mistakenly in I WlU believing that he is o nc of the disbe\kvus, there will be nothing obligatOf}' on him except (or Ih<- cEpialion. Allah, baited be He. says:
. AJuJ ...h~r killl 4 bcilel'fl" "" mflt4h - 'htl,1hc jru'/l1 fIj a bel/C"'in& .Iave 4"d .. (4m~"lQtion pa,mnr' (dlyoll / presen,ed to hi. {i.t. 'MdfUfUtd'lJ family {u utlllired/unltu they lillt {up thtir right tu a1 charity. But ifhe fi.e.. tht d~,tdl "",. from a
~oplt at ",ar ... I,h you 4nd he "'4$ a btllt""r - th", {o/lly/ tM frulngof" bdk"lng,I..vr, .. nd jfiw ......from "/HOpE, "",h ... hom

)'Ou ha .... 4 trCfIty - th, n" mmpalQtlon ,...ymc<t ~nud ID

h,. /4mllJ' IIIId ,10, /rfflng of" believing 114..... And ...Itoewr does
no' find 1_ or ( _nM 4ffim1ID "'"

fIII'/ - '#Un IIIIS,uulJ. 4 ftut

(Qur'An : An -Nisi': 92)

for t_ ..... ndu <:OfIJ'IINwly. /udlngl tU"Up14I1U 01 rqH111"fr'U from AIW.. And AlliUr'. ewr KllowlllgalUl Wu."

IX Q1W(lEGAL RETRlBlJfION)

Hen,e, Allah, Exalted ~ He, stated two kinds of manslaughter: Finl: the first kind of manslaughtu is that in which the npiation is obligatory on the murderer and the diyah on his agnate relative. This kind involves killing a ~liever unintentionally without mistaking him for a disbeliever in the battldidd. The same ruling applies to the case of unintentional killing of one of tho .. with whom Muslims have a peace: treaty. Sond: the second kind of m.1ns1aughter i. that in whkh only the diyah is obligatory. This kind involves killing a believer unintentionally in the battlefield, mistaking him for one of the disbelieving enemies. In his book enlilled Fatb,ulQadir (The &stowal of the Omnipotent)," Imlm A4J,Shawldnl (may Allah have mercy on him) said:

"Allah, Exalted be He, says, ~ . Bllt if h e [i.e. the deceased] W<I$ from a prople tit war with yall and he WQS a IHllever the~ [anly] thtfrttlngofll IHlievingslove .. : (Qur'1n: An~NisA': 92) The verse indicates Ihal in case of killing a bcluver whose peopl. an: in 11 sMe af war agaiml Muslims, such as killing a belieyer in a disbelieving country to whIch h. belong..~, thinking he was s/ill a disbeliever, there is no diyah to be paid by hjj murderc~ Yet, it is obligatory for him (Le, the murdmor) 10 emancipme a believing slave in up;"tion. Muslim scholars diffrr concerning the principle on which there is no diyah obligatory in case of killing a believer mistaking him for a disbelieving enemy. Some scholall soy O",t the ~ople of the killed ~rson are disbelievers, 50 they are not eHlitled to claim hi' diyah. Others maintain that Ihe Wood sanctity and inviolability of the one who has converted to Is/om bUI has not ~I moved from his dis~li.ving country i, ,till insufficient. Thi, i, b. cause AI/ah, Exalted be He, says. ~ . But those who ~!ltwd ond did not em/vote - far y<m there is no guardianship of them .. : (Quian: AlAnf.:l.l: 72) Yet, some other scholars view IIIm Ihe diyah is obligmory in rhis case. and that it is to be paid 10 the Muslims' Public Treasury."
1n this respect, Sbaykhul1sUm 1bn Taymiyah (may Allah have mercy on him) said:

"The diyah is due in c~5t of mistakenly killing a Muslim whose ~ple an: disbelieve,.., providtd he is among them due to a legal acuu. ,u,h a, being a captive or ane who is unable to emigrate. Contrarily, there is by /10 meam diy.lh fO!' mistakenly killing a Mus/im who willingly

Ch.oP'" I, Murd., .nd h, Trp

,hooreJ 10 remain among his disbelieving people who are enemie. of Ih., Muslim>, ns M Ihw exposes himself 1<> danger wilhout n legnleuUM.
R

The proof of the fact Ihal il is obligalory forthe perpetrator. agnate rdatives to pay the diyah in CaSl: of manslaughler is derived from the following hadllh narraled by Ab" Hurayrah (may Allah be pleased wilh him). He narraled:

"Th e Messenger of Alloh (PBUH) gave the judgmenl Ihat a male or female slave is 10 lit given (as diyah) in compensMion for al1 abortion of a woman from (the tri~ of) Ban" u./lytln. Then the woman on whom the compensati<>n had been imposed died, so the Messenger of Allah (PBUH) ordered Ihat her offspring and her huslxmd are to inheril her profHrty and Ihat her agnale reklliw5 are 10 pay Ihe diyah (blood mOl1ey).~"
(Rdatrd by Al - Bukh~l and Muslim) So, the badlth states t hat the diy<lh for manslaughter is to be paid by the perpetrator's agnale relatives; an opinion on which there is co nsensus among scholars.
Pfrhap~ thf wisdom behind th is opinion is that iCthe djyah for mallSlaughter

is to be paid by the perpetrator, thre will be a g,..,at finandal harm caused to him for a sin he has unintenlionally COmmilled, as such accidenls happen recur,..,ndy. Thus, if the comm itter is to shoulder the consequences alone, i.e. paying the .diyah, it will be regarded as doing him financial injustice. On the other hand, Ihe,.., must bt a kind of compensation for the murdered p erson, as he is considered an inviolable soul, whose killing causes harm 10 his heirs, especially his family. Hence, the Wise Lawgiver" obliges Ihose who sland bc.side and support the perpelrator 10 help him in such a maller (i.e. in paying the diyah), just like th~ obligation of providing for th~ir needy relatives or freeing their captivated rdatives. Since one's agnale relatives generally inherit from one when one dies, they have to compensate on one's behalf when on e commits manslaughler due to Ih e general principle stating, KSharing in affliction in ,..,turn for getting henelit.H However, the expiation is obligatory on the perpetralor of manslaughter for the following ,..,""OIlll:
I. Such expiation is means of showing respect 10 Ihe inviolable mur

dered ""ul.
2. Manslaughter il by no mtMJ void oftht ptrpdrator'$ httdlt!.Sntu.

IX

QIW (LEGAL Rl::TRlBUTION)

), Such expiation does not allow the perpetrator to be complddy free from paying for hi. guilt; sincr the diyuh is not obligatory upon him (as it is paid by his agnate relatives), he mu.t expiate for his offense. That is to say, thrre are sew:ral wisdoms and benefits behind obligating the payment of diyah upon the p"rpdrator', agnate relatives and the expiation for the manslaughter upon the p"rp"trator himself. Glory be to Allah, the Wise and the Knowing. Who has ordained for P"<'ple what benefits them in both their religious and worldly li~ It is important to point out that slaves. poor p"'0ple, minors, insane P"<'ple, tnnales, and th""" of religions diffel"<'nt from that of the perpetrator, are not considered among the p"rpetrator's agnate relatives (who are obliged to pay the diyah), a. they are not among those who are supposed to be hi uppor~rs and backers. In this conne<:tion, the agnate relatives of the p"rpetrator of manslaughter are allowed to defer the payment of the diyah for thrtt years. Moreover, the magistrate (or the one in authority) should re&art to ijtihM to 'pecify a certain share of the diyah for each of them to pay according to their financial ,tates. In doing so, he is \(I begin with the dosest relative", then the doser, and so on and so forth. Yet, Shaykhul-IsUm Ibn Taymiyah (may Allah have mercy on him) said:
"The diyah jj lIot to bt delayed illjtant paym~nI .... "

if the ruler pe,u;ve,

a btneftt ill

Endnotes
I Diyah in Arabic meam a compen .. tioll I"-ymenl murd" or an injury; it mainly m<ans "blood money", ond it can a"" mean "indtmnilyc 2 AI-BukMr1 (687Sj ] t2/250] and Mu,lim (4~51) ]61166]. J the tOOtnot< in Ar.l!aw.tftI_M"rbi ' 111165). 4 Abmad (671S) [l/183I and Abll D1wUd (45-65) (~I~SI] . S Ahmad (4S83) 12/11], Abll D!wtld (4547) 141-Hl]. An N ..i 1 (~80S) 141409], and Ibn Mi jah (2611) 1)/2671 . 6 So "Bili4)101 AIM "jlah;.r 1214861. "/ Aj!lukl>ltl (6910) ]1213 t 4] and Mu.lim (4367) [6/ 177 1.

f,.,..

s...-

a.."... I: Munlcnlld luTrecs

8 S: "'.IjmoI"!p. In]. 9 S: AlM~gIr"i ! 12{16]. 10 S- "FarhulQ.>dlr (The BUlo1o'<l1 eft"" Omnil"'t<nt)" (11792).
11 AI Bukhlt1 (6740) [12130) I nd Muslim (4366) 16/176). 12 The L>wgiver M SIuuf aJI (i<ll mic L>w) i. AlI.1I. EJ:.l~ b< He; Ihe ~rm can .lso refer 10 I'" Prophet (PBUH) .. M TIfVCT ordaInt<l bol w.....t _ rewallto him by ,,!bit 13 Stc tbo ~ io ArhwQ' AIMIIriN tm87~

CHAPTER

Qisas for Murder

Muslim K ho/lll unanimously 'SrN on the Its-lilY e( qit<l.\ (legal retribution ) (or murder in t"~ cast of pmneditattd murder provided the coooitiOJ1!l or such. murder are mer. This is because Allah , Exalted be He. la}'$'

"0 ~II will/MW! M~ve4, praaibcd for you il 1tlal rdribu'wn for thOU! ..."rtkrM - 'he fr ffJr IlK /r. rile ""~ for tlv sla .....
IIltd theltlfUlltfor tMfrm4le. .~ (Qur'An: AI-Baqarah: 178)

"n.h. Exalted M He. also says:

"A.nd We (mlaintd fo r IlKm thc~;" Q llfo for IJ 'lft ...~

(Qur'A n:

AI M~'idah:

45)

This is also staled in Ihe law ofthe Torah, and we an. 10 abide by the laws of the prtviOll' huvenly ,,",,,ultd rtligiolU as long 115 they are not abrogated by ou r Sharfalr {IiJ,mk Law).!" addition, Allah, Jc.alttd ~ He. lays:

IX Q/W(LEGAL RETRlBIJTION)

"And thu is far you inltgal rttribution [sovlng a/I lift, 0 you [ptopkJ a/understanding, that you may blJmt righttous.
H

(Qur>~n:

Al-Baqarah: 179)

Imlm A&h-ShawUnl (may Allah have mercy 011 him) commenled 011 the aforemenliolled verse saying:

is saving of/ife in this ruling ordained Iry Allah, as whm one mi"d that thm is q~ (legal rmibution) if he kills orlOther, he wiU ab.tain from killing, avoid it, and restrain himself from committing it. Thu., qi~ (legal retribution) is wnsidw:d a mean. of saving human Ii~. Th;. ytO,.,e i. a great :Camp!.: 0/ doqurnce, as Allah mild, the qiIAlIor murder, ",hich is dttlth, a mellns ofpres""ing human IiVls. This is beca~st s~ch a ruling deters people from killing one another 10 p~serVl IInd maintain their own lives. In this verse, Allah addreS$ts the 'people of understanding', as they art the Ones who consider the con"'quences of their actions and avoid that which may cau'" anticipmtd harm. However, those Cha1"QClmud by httdlmnw and lightheadtdnw do not, M Iheir times of roge, consider or listen to the voice of rroso" regarding the bad colIsequences that may result from thtir actions. Some of those murderous persons said:
'Th~re

belli., in

., will dear my disgrace with my sword And let Allah ordllinfor me whartver Ht may ordain"
Then. Allah. Exalted be He, shows the reason behind ordaining rdribution (qi!diJ i" cast of mlJrder saying, '._.thllt you mlly btCOmt righttow.' (QlH'~n: Al-Baqarah: 21) That is to SIIy. avoiding killing L btCIIUlt of the qiIA~ btromf!S a mta"s leading to righltousness.

In Ihis connection, the Sunnah (Prophetic Tradition) states that the heir
or lq;a! representative of the murdered perwn would choose one of thru choices: to occk qi~~, to pardon the murderer in return for the diyah. Or to pardon him and give it (Le. the diyah) up, which is considered the ~st thing to do. Ab(l Hurayrah (may Allah ~ ple.sed with him) narrated th.t the Prophet (PBUH) said:

murdtr ofa rtiatiw, he hos tht choiet betwetn two optiam: either he may receive the puyment af di)'llh (blood money) Or ht may choose qiI.<l~ (legal retribution)."'
' Who~~tI" .uffors tht

(Related by the GroupofCompilm of J:iadlth)

",
Moreover. Allah, Exalted M He, says:
~ ..&twhwrowrloob from his brotJrD" {i. ~. 'he /dlkr] =rthi"& thm WrY' Jlwllld /J<! ~ lull4b1t foHo ......p and jHI)'Imnr 10 him {I.... rhe d~'t hei,. or kpl rtprflUHhltiwJ with fOOd conduct..
,H

(Qur'in: AI Baqarah: 178)

Thus, both Ih" "erse and Ih" b."dith mention ed above indicate that
the ~laljve or the Irga l represe ntat ive of the deCe lSed has the r ight to choose between carrying out the 'Iilal and m:eiving the diYll h, Yel, pard oning th e murdere r and giving up the diyah is consi dered the ~st

Ihing to be don e by th e deceased's he ir or legal repreu ntat ive. All ah,

Exa lt ed be He, says:
~.. .And to forego

It /.

"tQl'l!r to

righko .....Q$ . . ...

(Qurh: A I-Baqarah: 237)

Thi$ is also supported by 'he lv>dllh narrated by AbO Hu raynh (may Allah be pleas! with him) in which tht Prophet (PBUH ) la)'$'

"No person forgi ves "If /let of injustice (don" to him) "ut AI!J2h will add 10 his honor for if,"'

(Relaled by Abmad, Muslim, and Al -Tirmidhl) forgoing Ill<! qiidl (ltga' rdribulion ) is the besl lhing to do a.s long as it doe. not ClUJe nil or any kind of corruption. Shaykhul- Isli m Ib .. Taym.i,..h (may Allah haw mercy o n him) mainlainm, "Pard(lning;' not fobt opp/in! in tM CIU/!' ofawusinafilm , Qj Judr a kiltd of ","nkr canllQi bt guardtd a",lnu, Jud! Qj tlu: aue of killing in ""nditry." MOI"Wver, AI-QJllt views that the qi~ is to be applied On the killer of lm!nu {Mlluim rulers}, a.s it is an act of seneral corruption. TIle great Muslim schola r Ibnul -Qayylm commented on the 510ry of the men of ' Uraynah ' saying
M~r,

Kill! ng throllgh alMUSi nali"n <>bUgal e. "pp/ylnK Ihe qil6.i on rh~ kill.....

Such " ~ pe7I,,/ly is 1101 bt drop~d '" JMrdonillg Iht killer, and no rompe7lsaljoll can be IKCqlltd Qj a Jubslilllle. ThiJ is lhe opillion aJoplftl '" Ihe Ww/tlrs of Amiilttl. "lid il ;. WIt of Iht lwo opinions 0 attributed 1 Abrrrad. In additwn. it is the opinion ",a;lIt,,;M<i by Sltaykhul-IlI"m Ibn r"ymiy"" (n,,,y A/lah h<lw mercy on /rIm; "Md ht g"w" f,,'w<I ""Imilng 10 il."

,,"
are met:

IX Q/W(LEGAL RETRIBUTION)

The heirs or the legal rq>res~ ntatives ofth~ killed ptrson do not ha"" the right of qilm (legal retribution) unless the following four conditions
1- The rnun:l.e r.. d ptrsoll must be one of thou whose blood i. inviolable. as qi~04 was ordained 10 save human lives. Thus, if a Muslim kills a dis~lieve r W hOM p=ple are in a state of war with Muslims, or if he kills an apostate before the latter declares hi. rep"ntance or an

adulterer, there will be neither

qi~d~

nor

diy~h

due on the part of

the perpetrator. Yel. he is to undergo discretionary punishment for arrogating to himself the ruler's authority.
2_ The murduer must be malo,", and sane, for qj~~ is a severe punish ment that is not permissible to be applied to a minor or an insane whose ca~ is lacking the condition of intention and premeditation, or their intentions, if any, a"" dttmed void. This is based on the b.ad/th of the Prophet (PBUH) in which he said:

"There are three (persons) whose <lelions are not recorded: a sle~p~r until hf awakes, a minor u7llil ~e rea(ne$ puberty, and a lunatic until he comes to reason:'
Imlm Muwaffaqud-Dln Tbn Qudlmah said:

-There is no disagreement among M""lim .chow" that tMre is no q;~~ to be tx<lcted against a minor or an insane; the .ame applies to anyone in a state of uncons.:iousne5> due to an ucu.ablt reason, such as !>ting arieep or losing consciousness:'
3- There must bf, equivalence bf,tween the murdered person and the murderer when the action of killing has taken place. In other words, they must bf,equal in rdigion, and freedom or slavery. That i., the murderer should not be sup erior to the murdered por..,n due 10 being a Muslim or being a free person while the murdered is a disbdiever or slave. Accordingly, a Muslim is not to bf, sentenced to death in qi~J.~ for killing a disbeliever. To illustrate, the Prophet (PBUH) said:

"No Muslim should be killed in qi!J.! (legal retribution) for killing " disbelieve,,"'
(Rrlale.l by Al-Bukh~rl and AbiJ. mWlld)

Ch'pta" 2: Qil4 fOr Murder

S31

Moreovu, a fr.~ p. ,..on is not to be killed in qi~ol~ for killing a slave, as Im;\m Ahmad related that 'AlIlhn AM IaJib (may Allah be pleased with him) said, 'It is an "et of the $unn"h that no free puwn is to be killed in killing" s/,,, ..
qi5A~foT

This is be.:ause if lhe murdered .,.,,..on is not equal 10 the murderer with regard 10 the aforementioned aspects, carrying out the q;~~ on the latter will be more than what the murdered person is entitled to. No pr~f~rence is to be t aken into consideration between the murdered person and the murd erer in matters other than those mentioned above. So, a handsome person is not preferred to an ugly one; if the former kills tn e latter, Ihe qi~tl,s. is to be applied. The same ruling applies when an nonorable man kill s a mean one, an adult kills a minor, a male kills a female, Or a sane p ersnn kills an insane one. Tnis is due to the generality of the Qur'anic verse in which Allah, Exalted be He, say"
KAnd We ordl1ined for them therein a lift for a lift .. ~

(Qur'<in: AI Mfidah: 45) Allah, Exalled be He, also says:

"; . thefreeforthtfru ..~

(Qur'~n:

AI Baqacah: 178)

4- The murdered person must not b.. one of the murderer's children o r

de&<:endants. ThaI is to say, none of the parents is to be killed in q;~<4 for killing his/her wn. daughter, or any of his/her des.:.:endants. This is because the Propnet {PBUH} said:

11 parent is nol to be kjl/ed (in qi~tl1Jfor his/her child:'

Commenting on the aforementioned i:Jadith. Ibn 'Abdul-Barr said, "This badith is wellknown among th~ scholars of l:i~jaz and Iraq .... This badilh and the other badllhs that carry the same meaning art of the general rule stating Ihe obligation of q;lol1 for murder; this i. the opinion adopted by the majorily of Muslim s.:.:holars. However, Iheson is to be killed in qi~~whenkillinganyofhis parent~, due to the generality of the Qu,'a nic verse in which Allah, Exalted be He, says:

"; . prucrlbtdfor YOII i. legal rdriIJlllion for those murtkred." (Qur'An: AI-Baqarah; 178)

!X Q/W(LF.GAL RF.TRlBlTT!ON)

Yet, th~ ca", when a parent ki1ls any ofhislher child",n is an nception of the afo",said genoral ru ling according to the legal pro<>fs. Hence, if the aforementioned four conditions are met, th~ rdatives or the legal "'pm.entatives of the murderw person will have the right of qiliJI.. In fact, Allah's ordainment of qi~l involves a divine mercy on people as well as a means of saving human live$, as Allah, Exalted be He, says: "And there is for)'OlI in Iq:al retriblltWn {"wiflg of] life ..... (Qudn: AI-Baqarah: 179) So wO( to those who d aim that the obligation of qi~l involves brutality and mercilessness. Such people do not consider the cruelty of the offender when he kills an innocent person, spreads panic in the country, widows women, orphans children, and ruins hou",s. Such people show mercy toward the murderer rather than the innocent, so WO( to their narrow-mindedness and unenlightenment. In this regard, Allah, Exalt~d be He, says: K Then is it the judgmetlt of {the lime ofl ignorallct thty desirer 8ul who Is belt" Ihall Allah III jlldgmtllt for a pwple who are certaill {in faithl.~ (Qur'an: AI-Ma'idah: SO) The qj~1 is a rdaliatory punishment exacted by the victim or his/her heir or legal "'Pr=ntative against th~ off~ndu, "'turning likt for likt or evil for evil. The wisdom behind qj~~1 is that it quenches th e names of wrath and ire of the victim or his/h .... people. Allah, Exalted be He, ordained qi~l as a meanS of restraining agg/"fiSinn, extinguishing the flames of wrath in th e hearts, le"ing the murderer taste what he has done to his victim, and saving and pre",rving human live . In this connection, the people of the P",-Islamic Ptriod of Ignorance (th e
Illhiliyyah) u",d to exaggerate in retaliation, killing other innocent people, in

addition to the murd~rer. in revenge. This is undoubtedly a kind of aggr:ssion an d enll ami ng of th~ passion< that does not ful fi lithe purpo", of fair retribution. Rather, it is considered a mean. of more di ..ention and bloodshed. This is wby 'Islam and it. perfe<;! Shari'ah (l.damk Law) ordain qiliJI. through which fair retaliation is executw only again.tthe perpetrator, not against any innocent people; thus justk~, mercy, and pl"(:vention of bloodsh ed are achieved. We bav~ previously mentioned the conditions obligating qim, However, if such conditions are met and thus the qi,j<l.! is obligated, it is not to be carri~d out ul'lless some oth er conditions are fulfilled. Those conditions have been slaled

by foqf~ ('I'' 'Y Allah have ~n:y on t~m ), who ell] th em, "the coooilions for

the fulfill~nl of qiw." They are thrH condilions:

). TM onc who has the right 10 carry 0<11 lhe qil4l in rdalWion is to ~ a kgalty accountable penan. llIat i, one in thi! cue must ~ adull
and aane. Therefore. iflhe one (or one of those) entitled 10 carry out the q;l"l is I minor or an insane pt'rson, one's guardi illl is not 10 carry It out on one', ~half. This is ~cause Ihe qil"llnvolves vengeance to que nch ont's Ihirst of one's wrath , so ils purpose will nOI be attained if It Is taken by others on one's behalf. Thertfore, the fulfiUment of the q~ must be postponed in such a case, and the offender is to he jailed until the one who has the right of qi~1 reaches puberty if he/she is I mi nor or rtgains sanity if hr/she i. I n in",n" person. This is hn:a~ Mu ' .wiyah (may AUah ~ ~ wilh him ) }aiIed Hudbah Ibn Khuh r;om in '~ CIItailing qitoit until the son oflht mu rduN! perWn readied pubo:rty, and none of Ihe Prophtt's Co mpanions who livnl at that li me denied that ruling. Hence, it was considered a unanimow ag.rment by the Companions contempol'1lry to MU ' lwiy;oh (may Allah ~ plO'aSed wit h him) on that ruling. In such I case, ifthe minor or the ins.ane pe~on who is entitled 10 carry ou l lhe qiAi: nu ds money for expenditure, o nly the guardi an of the insane person has the right to forgo the qil<l.l and accept the diyah insteRd. This is because no one knows when san ity is regained, unlike th e minor who will grow up and reach puberty anyway. 2 There must be an agreement among the legal representatives of the murdered penon if the q4d.I i. to ~ carried out. Therefore, it i. no! permissible (or some of them 10 carry il out singlehandedly without the COI"ISent of the others. This is hn:a Ust, fulfilling the qis.Al is considered a shared undividable right, SO if wme of thnn fulfill it on their own in itiative, they th... tnllu gn:$S Ihe right of the otM' n:presentatives without their penniu.lon and without being Ihn r legal guardian. In thI s regard, if any of thoK having the right of qil'4 is absen t, a minor, or insane. the fulftllment of qil<l.! Is tQ ~ delayed until th e abse nt return&, t he minor reaches puberty, a nd the in&ane regairu sanity. Moreover, if any of those entitled to carry out the qj~~~ dies, his heirs art: to act in this regard on his hehalf. In addition, if som. of those entitled to carry out the qj~1 agree to forgo it, then the qil<l1 is no longer applicabk.

IX QJSAS (LEGAL RETRIBUTION) The pwple entitled to carry out th. q~aI a,.., all the heirs of the d""eased, men or women and ,hild,..,n or adulls, whether through blood or marital ties. However, some scholars maintain that the right of fulfIlling or forgoing th. qioJ! is ,..,stricted to the deceased" agnate relatives. The latter is the opinion adopted by ImAm M~lik and one of the opinions report ed to be adopted by !mam Ahmad. It is also the opinion maintained by Shaykhul-Isldm Ibn Taymiyah (may Allah have mercy on him). }- EXe\:uting the q~ shou ld never rea~h per:son~ other than th e offender, for Allah. Exalted be He, . ays:
". .And wiwetler;' kil"'d unju.tly - We h4"., g;vtII his ,",iT 4wthority,

bUild him n.ol acted limits in fth e matt" of) taking lift. Indeed, he Iwsbunsupporttd {by the /4wJ." (Qur'an: AI-bra': 33)
Therefore, if the action of carrying out the qioJI ex~eds the limits. it is considered exc= iveness, which is forbidden according to the aforementioned noble Qur'anic verse, Accordingly. if the qila! i. to be applied to a pregnant WOman Or a woman who conceived after being liable for the qi~aI' she is not to be killed in q~~ until she gives birth to her baby. Thil is hause killing such a p,..,gnant woman caul;eS the death of the fetus deWit. its innocence; Allah. Exalted be He, say~:
~, And

no "eonr of burden. will I1e4r the burden rif another.. (Qurln:AlAn'dm: 164)
H

Hener. the p,..,gnant murderer is not to be killed in THaliation unl ~ss she gives bi rth to her baby. Furthermore, after she gives birth to the baby, if the", i.'l another woman to breastf~d and take care of th e infant, the q;llll can be applied to the mother. as there will be no barrier preventing the execUlion of the qjIa~ then. Otherwis~, carrying out the qi~ is to be delayed for two years, until th e mother weans her infant. This i. becam e the Prophet (PBUH) $0)'1':

"If a pregn4nt woman intt nti(mally murders someone, she is not to be

killed (In qi~IJ until she giVe! birth and ca",s for her baby. And if a wom~n commit. adultery (and becomes pregnant), she is not /0 be killed (a. "'gal purri.hment) until she gives birth and car.. for her baby:"
(Related by Ibn Majah) Moreover. the Prophet (PBUH) said addressing the woman who confessed committing adultery:

"Go home until you give birth."Later, when she gave birth to the baby and came back to the Prophet (PBUH), he said to her, "Go home until you well" him.""
Thus, the two hlldUhs, as wdl as the Qur'anic verse mentioned above, indicatetheobligationof delaying the qj~for murder ifth e perpttralor is pregnant, and thi s is unanimously agreed upon by Muslim scholars. Such obligation is a proof of the perfection and justice of Shari'lIh, as it maintain. the fduses in their moth ers' wombs, and prohibits cawinll them allY harm, Mortover, Shari'nh observes the rights of children as well as the weak, protecting th em against any harm and providing them with what pre,erves their live . So, all praise be to Allah (or endowing us with ,uch a lenient, ~rf~t, comprehensive Shart'lIh that encompa"e, all people', interests, the q;~~ for murder has to lit in the preSl:nce and under the ,uprrvi,ion of the ruler (or hi' "'presentative or the one in authority), to avoid injustice and ensu", the legality of execution. Moreover, the tool used for exuting the q~ for murder must lit quile sharp, such as a sword or a knife. for the Prophet (PBUH) says:
Ex~uting

'When you kill (in qi1Jt!, do il in 0 good mamU<T (i, e, gently and mm:i[ullyr"
Thus, it i$ prohibited to execute the qildl using a blunt tool, as this is considered excessiveness in killing. If the person entitled to execute the '1;1<11 is able to p"rform it in the prescrilltd legal manner, he is allowed to do it. If not, h. is to be ordered by the ruler (or the one in authority) to appoint another person to p"rform it on hi. ~half.
A!J for retaliation, the mOllt p",ponderant opinion among scbolan is that the offender is 10 be punished in a way equal to the barrn he caused to the victim, Thi~ is because Allah, Exalted b. Ht, says:

"Alld if )'0" p"",sh [/llI tlltmy. 0 Mlitvtrl/, p""i.h with all equiv,J/.ent of thut with whim you Wtre harmtd.,,"
(Qur'1n: AnNahl; 126) Allah, Exalted be He. also says:
";"s.;, whoewr has aS$au./~d )1(>'" then ""a"lt him In tht SlImt wily that ht assll"Jted JO" ...K (Qur1n: Al. Baqarah: 194)

"as

IX Q/W(LEGAl. RETRIBUTION) In addition, the Prophet (PBUH) ordeted that the head of a Jew would be crushed between two stones in retaliation for crushing Ihe head of a girl of the AII~ar (the Supporters) .

Imtrn Ibnul-Qayyirn (may Allah have mercy on him) said,

"Tht Quran and the prilldples ofju.tia agree that tht offender, before being killed in retribution, i;- to be- retaliated against in tht some way he did to the victim before murderillg him. That was applied by the Prophet (PBUH), and it is proved through the Quran, Sunnah (Prophetic Tradition), and the traditions of . Compamom .. .."
Hence, if Ihe perpetrator has cut off the hand of the victim and Ihen killed him, he is to be punished in Ihe same way h e acted, i.e. his hand is to be cut off and then he is to be killed in retribution. Similarly, if the perpetrator has killed the victim wilh a stone, Or has drowned him, or anything of the kind, h e is to be punished in Ihe same way before killing him. Still, the deceased's heir or legal representative, who is enli!led to carry oul the qi~b.L has the righl to furgo such retaliation for injuries and make Ihe qi~~ restricted to cutUng off the head of the offen der with a sword, and this is more favorable. In this respect, if the offender has killed the victim with an unlawful means, h e i. to be killed wilh a sword in qi~. Nowadays, the act of killing with a sword in qi~can be replaced with killing by shooting, provided it is performed by someone who shools accurately.

Endnotes
1 See:' FIlth~JQadir (IM Btsto"'lll of the OmnipoM~tr (1/179). 2 A1,Bukh1r1 (204) [511[13], M".!im (3292) [51132 1. AM DiWCld (~5(l5) [~1~20], At Tirrnldhr (14(1\1) 1 4/11 j, An-Nw! (479'1) 1.,>107] 00 Ibn Mtj ah (3624) [312651. 1 Mu.lim (6535) [81357] .nd At Tirmidhi (2034) 141l76]. 4 ~; AI'lkhriyardt .... 1.Fiqhi,.,w. [po422]. S Some people from the rri"" of U".ynth came to Modin. and commined rh<fi .nd murd oft.r ernbrocing Islam . 1ht I'mphel (PBUH) ordered that their han'" and fffi "",re to be cut (and it wo. d""e): then their ~ were brandtd with h.. ted pi .. of iron and th<y mu left without wat until they ditd. 6 s.. the footnoto of" Ar,RaWJ/ AIMur/n '"1712071 .
7 AM D~wUd (<<Ol) and AnN.d! (3462). 8 Se<:: MMugnnr ["'3571.

(Ill), Abii D;\wUd (4530) 1414331. Al Tinnidhl (1416) 14124 1. A<l -No,t1 (475l1) (4092 1. and Il>n M;\joh (2658) (3/282] )0 AI-Tirmidht (1405) 14/l91. IIm Mljoh (2661) IlI2B3]. 11 Il>n Mt jah (269-4) 13/300]. 12 Abii Nwiid (4442) 14/381) and Muslim (-H06) (61 198). 13 Mu.lim (S028) 17/107] 14 AIBukhir! (6877) 1121649) ond Muslim (4]l7) (6J 1591 _ IS ~ , '["Id", A.I.MW<Ioji'ln" I J/3O J - 302].

,'.I8ukh~r!

CHAPTER

Qisas for Parts of the Body and Wounds

The qi~l for parts ofthe body and wounds iutaled according 10 the Qur'An, the Sunnah. and the con~nsus of Muslim scholars. Allah, Exalted be He, says:
A.nd We ordained for them therei" .. life for .. life, "" e~ fo r an eyr, a nase far a nOH, an ear f(Jr an ear, a tooth far a tooth, and for wou"ds i. legal rdrlbution .. (Qur'~n: Al -M1'idah: 45)
H

Moreover. it i. recorded in the Two Authentic Booki (of AlBukh~rl and Muslim) tha! when Ar-Rubayyr broke a gir)', ioci""" the Prophet (PBUH) ""id,

"(The law prescribed in) the Book of Allah is qi~dl."'

Thus. the ruling applying to the killing of a human soul is to be applied ,..,garding para of the body and wounds, provided that the aforementioned

conditions for the validity of the qiiJ.t

a~

met. Such conditions involve

th~t

IX Q!W(LEGAL RETRlBlJJ10N)

the victim's blood must be inviolable, the offender must be mature and .ane, both the nffender and the victim must be equal as regards slavery or freedom, and the offender is not to be one of t he victim's pal"<'nts. On the other hand, the ruling inapplicable in the case of killing is inapplicable in the case of injuries of parts of the body and wounds; this is the general rule in this connection. Likewise, the condition that obligates the qj~d~ for parts of th e body and wounds is the same as that which obligates it for killing. namely premeditation. Accordingly, there i.I no q~ in cases of injuries done by mistake or quasiintentional ones. With I"<'gard to qim for parts of the body, an eye is to be taken in retaliation for an eye, a nOR for a nose, an ear for an ear, a hand for a hand, a foot for a foot, etc.; the right organ for the right organ and the left for the left. By the same token. a tooth of the offender i. to be broken in retaliation for a similar tooth of the victim, an upper eyelid for an upper eyelid, a lower eyelid for a lower eyelid, an upper lip for an upper lip, and a lower lip for a lower lip. This is because Allah. Exalted be He, says:
OO:

and for ""'"n<is i.legal ,..,tri""tion ...

(Qur'an: Al-M~'idah: 45) This is because eyelids and lips ha"" up!"'r and lower parts which should be considered in order to make the q;~d~ carried out accurately. In addition, the same finger of the !"'tpetrator is to be taken in retaliation for that of the victim, and a right hand for a right hand, a left hand for a left hand, a right elbow for a right elbow, and so on and so forth, as such parts of the body can be accurately distinguished. Likewise. a !",nis is to be taken in retaliation for a penis, as a penis has a specific end, so the qi,\A~ can be accurately exacted, without transgression. This is indicated in the general meaning oftheQur'ank verse that states:
K,

,.rmdfur wound. i.l1,,1I1 ntri!>ution .K (Qur';1n: AI-M~'idah: 45)

There are three conditions for the validity of the qjl~ for parts (If the body: Flnt: Thel"<' must be assurance that there will be neither injustice nor transgression. That is, cutting off the pan of the body in retaliation must be from a specific joint or to a crMain point. Thus, if there is no specific limit, retaliation will be impermissible. In oth~r words, thel"<' i. no retribution applicahlr fur an unlimited wound, such as a deep flrsh-cutting wound that reaches one's abdomen, as there is nO specific depth that can he pointed out. Similarly, there is no retribution

Clupr 3, Qq.q for Po"" of the Body and Wound.

541

applicable for fractures (not teeth breaking) such as breaking someone', tibias, [emu"" or arm, as accurate application of retaliation cannot be guaranteed. Al; for breaking someone" tooth, the '14~ <:an be accurately applied by rasping the tooth of the perpetrator until it becomes just like that of the victim broken by the former. Second: There must be equivalence between the part of the body of the offender and that of the victim in both name and location. That i.. a right organ is not to be cut off in retribution for cutting off a left one and vice versa; this applies to hands, legs, eyes, ears, and the like. Thi' is because each ofthe aforementioned organs has 11 specific name and use, so they are different from each other. For example, a little finger is not to be cnt off in retaliation for a ring finger, for each has a differmt name. Similarly, a main body part is not to be cnt off for a secondary one. Third: The body part of the perpetrator in question must be in the same condition as that of the victim ,""gaming soundnes.s and completion. So. a sound, functional hand or leg is not to be cut off in retaliation for a paralyud one. Likewise, a hand or leg with complete fingers is not to be cut off for a defective hand or leg. Furthennore, the q~ is not 1 be appHffi. 10 a sound eye for a blind one. as they are not equal. 0 Similarly, a sound, articnlate tongue is not to be cut off in retribution for a speechles.s one, due to the inferiority of the latter. C<lntrarily, a defective organ can be cut off in retribution for a sound, complete organ. That is, 11 paralyzed limb can be cut off for a functional one, and a ddective limb (such as one having incomplete fingers) can be cut off in retaliation for a sound one. This is because the defective organ is similar to the sound organ in respect of the nature of creation, but they differ in quality. Moreover, by cutting off the defecti~ organ, th e one who has the right of q~ receives part of his right, sO there will be neith.. injnstice nor excessiveness. And if he is not satisfied. it is permissibl~ for him to receive th., di)'llh (indemnity) instead.

Qitd, for Wounds

The qj!~ is to be carried out for eve ry wound that reaches the bones, as it can be exacted with neither injustice nor excessiveness, such as the wound of the head, face. upper arm. leg, thigh and foot. This is hecause Allah. Exalted

be He, says:
".. .awl for ....""th ;. kga/ rdrlb"t;o ..... (Qur'An: AI-MA'idah:45)

IX Q!W(LECAL RETRIBUTION)

As for the wounds that do not reach the bon... it i. im!",rmiss.ible to apply the qiItI.I to th em, even ifthel' are head wounds or Ihe like. To illustrate, there is no retribut ion applicable a' regards the caS( of the wound in Ihe internal part of the abdomen, the ch.. t or the up!"'r part of the ch.. t, as the depth of the wound cannot be specified SO there is no assurance that there will be neither injustice nor excess.iveness. In this regard, Ihn Majah related that the Prophet (PBUH) said,

"No q;"dl il to be executed ;n ~ skullfracturing wound, an abdomen detp f1em -cutting wound, no r ~ /.one.br.akjng-~nd-dis1lXating wound."'
Moreover, Sbaykhnl-lsUm rbo 1"I.ymiyab (may Allah have mercy on him) said:

"The qil~for wound. is stated by the Noble Qur'dn, the S:amnah and the consemu. of Muslim scholars. provided th~t the retaliatory injury i. just like the original one. That is. if the head ofa perron ;l fractured by romeone, the injured person has the right to retaliate for it in the sam e way. But if it i, un~tlainable 10 ",",ct just, accurate retribution, as in th e cast of breaking an intern~1 bone or any other kind of he~d fracture less in degree than a /.one-de~ring wound, mribution becomes impermiss.ible, ~nd the diyah (indemnity) btcom .. obligatory instead."
M for applying the qildl in Cases of striking ,omw n e witb tb e hand, a Slick. a whip. or the like. Sbaykbul Is1am Ib" Taymiyah , aid:

"Some !Chola .. say that there is no retribu!ion (ql~V iM such ca.ts. but that must be a discretionary punishment. Howtve., it ;s " ported that the Rightly-guided Caliphs. the Companions and their fuflowe .... maintaiMed the penniss.ibilily of carrying ou! the ql,l.,\,t in such cases. TM lalter opinion is tht OMt adopted by Imdm Ab.mad and other faqihl, and jJ is the ant "ar.d in the SUMnah of AUah:' Mts.enger (PBUH); this is the sound opinion in this regard. In support of !hil view, Umar l/mul-Khatldb (may Allah be pleased with him) ~aid to his subjects, 'I do not send my governors to stri~ your bodies. By Him in Whose Hand my .oul is, 1 .hall carry out the qi~d~ aga;"'t whoevrr (governor) dotl so, as I have seen the Mess.enger of Allah (PBUH) applying the qi1dl to himself'
(Related by Im1m Ahmad)

This is wM" the g<We11l0T impmnissibly strika his subjts. Yd. d~ 10 the scholan' ronst"lU'l" Ihnr is no q~ tWIillSl the gowrnaTif h~

ItgIllly strilcu 11mn."'

MoKO~r,

Ibnl.ll-Qloyyim (may Allah .... ~ mcrcyon him) .said:

Shdji ." Hannji, Mdlikr, and lart Hnnba/r schallln mn;n/njn Ihlll Ihffl1 is no rttributirm fora Jlap or<lrike. 5<Jmtoflhtm claim that thel"(: il a jurillic consensus on tllis, "-"cted!ng Ihe analogi'nl deduction, the obligalion slllltd in th~ kglll ten. (of I/lt Qu rilll alld Sunnoh) III wt/I al the conunsus oftht Prophtt . Companions. MortOvtT, Allah, &alltd bt Ht, u>)'1, 'And if 1"u p,mlJh [an tn",,!> 0 btlinotnJ. punllh with an tqul.....w.t of fMI ",11" ""'Id! ycI" ""'.... hantlM.. .' (Ql.lr'ln: An - Nah1: 126) Henu, it ilforlhtptrson sJappoJ orstrvck 10 do lhe SIItm" 10 lhe PfT"SOn who Ms d_ il, Ttlu,-ning likt for like; Il JJap for a slap Ilnd a .'rike for a slrib, in Iht SIImt spot Ilnd ",Ilh Iht samt /00/ '" Il similar one This _Icn il 10 d Olt /0 llChitvlt I'" plYSCribul tqualify in qi1dl rtllWnobly and ItgIllly as Il discmioMI')' punlshmtnt void of Inmsgrasion o"d onylhing Ttlottd /0 il. This is Iht opinion dtriwd from tht guidon<t of AI/ohi: MtJStngtr (PBUH) and Iht Righll,.guid~d Caliph$, tht nlUllogical d,duction, and I"t Itxts ,an/oining tht opinions of Imdm A/unnd."'

'Th~

Endnotes
1 AIEklkll'" (21113) [SJ376 1 I nd MwJim (dSO) [61164[ . 1 lINo MIj.h (26.)7) [J/273]. l Ab61wOd (45l7) (414)8.1. 45ft ehc-lOoIeoote of'"r-Ra>o-tl ill_Murbi - [7/22 1I. j Ste: "IM"" AI.Muqi"l"- [I m4J.

CHAPTER

Qisas When a Group

Kills an Individual

When a group ofpwplepremeditatedly and wrongfully kills an individual. the whole group i. to be killed in qil<ll acrording to the most preponderant

opinion adopted by the Muslim scholars

Allah, Exalted be He, says:

(m~y

Allah have men:y on them).

This opinion is based Oil the general muning of the Qur'ani<: verse in which
"O}'<III who ha .... believed, pra<:ribed for YOII is leg'" retribution for those murder..d ... And there is for 1011 in legal rdrlbuticm [Iilvlllg ofl lift , 0 Y"" [p eoplt] ut undeN/anding, fhllt you m<lJ'

,,",come righteous:

(Qur'~n:

Al -Baqarah: 178- 179)

The afOrl'menlioned opinion is also the one unanimously maintained by the Prophet's Companions. To illustrate. Sa'ld Ibnol -M usayyab reporu,d

that 'Umar IhtlUI-Khil!l.ab (may Allah be pleased with him) had killed

~n

IX QIW(l.EGAL R11lI8UT10 N)

men of t~ peopk ofSuaa in ~ribution fm- killing one man . . Umar said; "1/ aJJ Ihe people o/5.lna had acted together i" kill;.,g him, I would have kilhd them aI/ i" qil4. ' It is also .tated that olher Compa nions were of the same
o pinion, and they wou ld kill a gTOUp of peopl e in ret ribution (or killing one person; the..., waS nOne wh o disagreed with them, 50 the..., was a consensus on this juristic view. In this rnpm. the gmt Muslim scholar Ibnul-QI)'Ylm (may Allah have mtrcy on him) said: "TM OImp.miotu IUld IM IMjorilyoffo'Ii/u ..n.."imowsly /lgrtt OIIlhe ruling Ihal ll group of II/f to '" tiUtd (i" rtlributitmJ for tilling OM person, tho ..gh it may op~r 10 conlrAdict the //>alk pri",jplt of qi~ namely saving ofli",,$. They maintain so IU Mt to Itt the nonapplication oftheqiw to A

pro,v

group of murderers !>t Ihe pretat for furth . r rompi, ary to $hed blood."'
Mo/eoyer, Ibn R" slld (AverrOO) said: "Th. wildom iHltind the ApplicAtion of the qi~l]ar m.. nltr IJ 10 Avoid fu rthu murder flH/llItd inlM QlIran. Th us. if Agroup of ronspimlol"J js not killnl I" rtlribuliAn fo r /Cilling fln IrJdivid",,~ pwp/t will //>and t~her In /cilling. A_her reason Is tMI mlllilllion Ilnd detnun" flU nllt AIlIlin.td acepf Ihrrlllgh /cllling al/IM m..rdeurs (I" qi1<1l/."' In this regard, a gTOO p of m"~rs is kUltd for killing an individual provided tile action of each member of tilt group i.! fatal. In other words, to kill them all in qiilll, it is a condition that al l of them have participated In kiUing the victim , and that th e deed of each one of them ha$ bee n enough to uuse death if done stparately. 110 e;oeh o( tllem Is considered a separate murderer. Even i(lII e deft! of e;oeh one of them i.! not stparatdy fatal and they h~ ..... rkrd tOSdhtr in killing the ,"ictim, the ql;illi, namely kiD ing them al~ i.! obligatory, as tht indirect act ions of some of them ha~ w ppontd IM direct actiOlUl oftht rat, ~ltlng in the murder. Si milarly, if I penon is forced by someone to kill another, it i.! obligatory to aP1'ly the qil"J. (or murder to both of them (i.t . to kill both), the murderer and the one wl>o compdled him 1 do 0 it, providt<! the conditi ons for the valid ity o((ull1ll1ng the qjill~ are met. Thi! i.! btcau,", the murderer meam to preserve his own life by kill ing another, and the one wl>o has compelled him to do it lIas Notn the Instigator and ditt cause of certain death. However. if the murder is committrd by a minor or 0 an insane penon d ue 1 the order of somf"OOe, only the latter, who hili gMn the order, i.! to be kiIJrd in qiiIJl. This is beause thr murden:r has just bttn a tool wed by weh person, so the qif<4 is 10 be applied only to him as the rHl cause of the murder, not to the one wed a.s a tool. likewise, if the m"rdnn ;1 a Itg311y 3IXounlable pt'fI,on (i.t. adult and tane) but unaware of the prohibition

Ch.pto, 4: Qi"" Who" , Group Kill! an In.:iividu.l of killing, such as those brought up in nonlslamic countries. the qi~dt is to be applied only to the instigator. It is not to be applied to the perpdrator due to his ignorance of the prohibition of killing, so the qi~d~ is applied to the ..,al cause of the murder, namely the instigator. On the other hand, if the one ordered to murder is a legally accountable p"rson and aware of the prohibition of killing, then the qi~dt is to be applied to him as well, as he has committed the murder without right. In this regard, the Prophet (PBUH) saY". "No perSiln is to ~ o~yd in ~ m~tter of disOOfdienCf to the Creator."' This i, the rule to follow, whdher the accessory is a ruler, a master or whoever. Mo,""over, the one who enjoins such deeds of disobedience to Allah should be discretionarily punished according to what the Im~m of Muslims (the ruler or the one in authority) judges. This is because such an aoc.ssory is considem! to have committed an act of disohedien ceto Allah,.o he has to receive a discretionary punishment as a mean, of deterrence, Furthermo.." if two pe rsons conspired and premeditatedly killed someone unjustly. and one of the two doe. not m ed the conditions for the application of the qj~, it is to be applied only to the other one who meets them (i.e. he is to be killed in qi"'~), a~ he ha, participated in a murder intentionally and wrongfully. That is, the q;~~ for murder, namdyeapita! punishment, is not to be applied to his partner due to the absence of the conditions obligating the qildt on him, not due to absence of the reason for the qiIdI. Accordingly, the qi1dtis to be applied to the one who meets the conditions obligating it. In this connection. if someone holds a person for someone else to kill, th e killer is to be killed in qi~1. and the other. who has held the victim for him, i. to be gi~n life imprisonment. The ruling appli~d to the group killing an individual is the same ruling applied in the case ofinjuries to parts of the body and wounds caus..d by a group to an individual. To clarify, if a group of people participates in damaging or cutting off a part of the body of a person or wounding him. the qio.JI (namely a similar injury) is applied to every memberofthe group, provided their actions in the crimt are undistinguished from one anothe r. For example. if they put a piece of iron on tht hand of a person and begin to press heavily On it until his hand is cut off. th en the hands of them all are to be cut offin qiw,I. This is based on the fact that two witnesses cam e to 'AIi Ibn AM lllib (may Allah be pleased with him) and testified against SilmeOne that he had stolen. Thereupon . All ordered to amputate the hauds of the thief(as a prescribed punishment) . After that, they (the two witnesses) cam e to him along with aoother pefron and said, "This is the real thief, u we were wrong concerning the first one."

IX QfAS(LEGAL RETRIBUT!ON)

'AI! Ibn AbO. lllib Il'jecled their testimony concerning the ~cond man and them to pay an indemnity to the first, and said to them: ~IfI thought you loud inlentionully lestified uguinslthe first, I would hul't umpututtd your hund5."' (This narration is rdated by Al- Bukh~rt in a mu 'ulllUl ' form and related by others as well) This incident indicates that the qi~o:I.!, namdy cutting their hands off, would have b<.en applied if they had intentionally testified against the man. This is also supported by analogkal deduction regarding the case when a group of people kills an individual, in which ca~ the q~ is killing the murderers. The qj~J~ is estimated according to the consequence of the offense. whether the consequence is death or a minor result. This i. b<.cau"" the reoulting effect of an offen,e is tb<. actual crime. To illustrate. if someone cuts off a finger of another. and the wound causes other fingers or the entire hand to b<. cut off (due to gangrene for example), then the similar hand of the offendu is to b<. cut 0([ in qi~l, not just a finger. Moreover, if the injury spreads to the rest of the body until it causes the death of the victim, the perpetrator is to b<. killed in qi,[o:I.! for murder.
ob~gated

It is impennissibJe to apply the qiw for an injury or a wound before it heals to verify that there is no further damage. This is due to the h~di", narrated by J~bir (may Allah be pleased with him) in which he said:
"A m~n WU$ wounded und he wunled qi.i:J~ to be upplied to the offentkr. However, the Prophet (PBUH) forbade applying 'Jj1A~ to the culprit until the wounded person was wholly recovered,"

(Related by AdDAraqulni and other compilers of liadlth) This is surely in the best interest of the victim, as it verifies that the wound will neither affe~t the function of any other part of the body nor cau"" death. Tberdoll', if the claimer opposes this ruling and exact& the qj14~ b<.foll' he wholly rt<:ovtl1l, and then his wound spreads and affects another part of the body. he has no right to seek any kind of qid.! for the effects ofthe injury. In this regard . Amr Ibn Shu' ayb, on lhe authority of his father and hi$ grandfath er respectively, narrated:

"A mun 5t"bbed unother in his knee with u horn, ro the injured man mme to the Prophet (PBUH) and suid, '[ wunt to upply the qi1AI (i.t. to cause the offender an equul injury): The Prophet (PBUH) said to him, 'Only when you art reww"d: Then the mQn mme "gain (before recovery) und said, '[ want to apply the qiI%' 54 the Mtlltngaof Allah (PBUH) enabled him 10 exult the qiI~~ Ajta

Ch.p'" 4, Qilll:. ~n 1 Gl'Ollp Kilt. >lI Individual

that. the man came /0 the Prophet and said. '0 Messenger ofAllah! I am limping.' Thereupon. the Prophet (PBUH) said. 'Iforbade you (to apply the q;~04 until you ""rify you are wholly recovered) but yuu disobeyed me, so Allah disgraced you. thus, you have no right to ask. forqj~04for the lameness that afJIicted you.' Then the Messenger of Allah (PBUH)forbade u ecuting qj~l4for injuries until the injured puson was completely recovered.' ~.
(Related by Imlm Ahmad and Ad- Dlraquln!) Hereby, Muslims come to know the v-irtues of their Shad 'ah (Islamic Law) and realize the perfect justice and the broad mercy it encompasses. True a", the Words of Allah. Exalted be He, Who says,

HAnd the Word of yowr Lord has been fulfilled in truth and Injustice, NOlle can "Iter His Words, and He is the Hearing, the Kllowing.~ (Qur'!n: AI -An ';1m: 115)
to th~ who replace the sacred Shart'ah with unjust. innovated. dd'ective. imperfect laws. Allah. Exalted be He, says about such people and their innovated laws:

So,

WO(:

Wrdched It Is for the wrollgtk>en as "n exclwlnge."

(Qur'1n: AI-Kahf: 50)

All praise be 10 Allah. Loed of the Worlds.

Endnotes
I 'Ab<!ur.RauAq (18075) 19/4761 and Ad-Daraqutn! (.H27) [J/B21.

2 ~ tht footnote of "Ar-Rawd A/Murbi [7/180 1 _

3 Set, "Bidd)"lt AIMujt,u,id' (21489). 4 Ibn AbU Shayboh (3371l1i) 1615-49). AI-Bul<hlrl (72)7) [012861, . rod Muslim (4741 ) {6141oOlS Ad_Danqutnl (336 t ) [311281 .nd Al_Bukhlr! r121282). 6 Mu 'aJlaq (SLUp<nd. d) IJpdith : It i. the bPdith. the beginning o f whO$< chain o f I... ", mi"ion h.. one or mo~ .ucceuive n....tors miolling. ~ until t he =d of the ch.in

of ~ioIIion.
7 Ad-DlnGulnl (3092) (3171) >lid AI-B.yhaql (16112) 18/1171. & Ad-DlraqUlnl (3091) {ll7ll and AI_!layh.oq! (1/;115) [8/ 1181,

CHAPTER

Diyah (Blood Money)

Di)'/lh (blood money) is Ihe ffiOMY paid by the offender \0 'he victim or represenlaliw .. legal com~nsal ion.

hiJ

1~

Its Ruling
Oi)'lZh (blood monq)
i$ obligatory

IICrording 10 Allah', Book, the Qurln,

the S""mlh (Prophel icTradit;onj and the conseosus o rMuslim scholars. Allah, Exalted bt He. JaYS:
~.. Alfd ""'oew~ kilb" Mlltw~ try ",/s,1Ib - fhnt thefru/"g of" kll''''''Il I/aw ..rut " com/>t'.....II"" "",m,nt Idlya"] pTflI!nltd (Qur'~n: An . Nis1': 92) 1 ,,11/1.,. the decMJw~}ftlmily. .. ~ 0

Moreover, it is stated in a labia hadftn that the Prophet (PBUH) ys:

"Ht ""hO$t .-till/lYe iJ ",u,den d h"J to ,hfX)jt ant of two W<lYJ: '1/11", If} "cUpl Ih, di)'/lh (blood monty) or .....W llt tht q;lA,'-

(Rtlmd hy the Group of Compilers of lJ.ndllh)

IX QIW (LEGAL RETRIBLmON)

Hence, the diy~h is obligatory to t"., paid by whoever kill. a ~rson di=tly, such a.s hitting a p"rson o r running OVer him by a Car. Th" same applies when

onCis a causative factor in killing another, such as digging a hole on th " road
or blocking it with a stone causing anothd. death, wh~"r Ih" victim is a Muslim, Dhimmt ' one of a pffiple who are not Muslims' enem ies, Or One of a people engaged in a ""ace treaty with Muslims. This is k cause Allah, Exalted k He. says:
": . Alld

if M

W4J

from

If

p u pil wilh whom

)'(Ill

han a trNty

- thell Q

com~lIsall('" paymtll/ prtStllttd

to IUs famjJy.,.~ (Qur'in: AnNis1': 92)

Diyah (Blood Money) for Premeditated Murder

Uthe murder is intentionally committed, th e diyah is to k paid from the killds owD money, as the original rule states that the comp"nsation for an offen se is obligatory to bI' paid by th e offender. In this regard. AI-Muwdraq

loo Qudtmah said:

"Muslim $(holaN UHanimously agre~ that the d/yah for premeditated murder is obligMory to ~ taktn from Ihe murderers wealth acto.ding to the originol rule, not to be paid by the ~rpetmlor"s ognate re/olives. Allah. Exalted be Ht. says, ~ And no Manr ofburdl ltJ will Mar
tlu burdelt of altother.. .' (Qur'iIn: AI -An ' am: 164)'

this original rule - th .t the diyah is to bI' paid from the !",r""tralOrs own money - is inapplicable in the ca~ of manslaughter. This is bl'cause cases of manslaughter recurrently happen and the amount of diyah for killing a human bl'ing is ""I)' large. Thus, it would bI' unfair if the offender
h ~d

Ho~r,

10 pay il alone. Thertforc, wi~dom ncccssitates thal such a large amount

of diyah is to bI' paid by the offender'~ agnate ,datives as a means of helping and supporting the offender and" wayofrdieving him .. his case is excusable. However, in the case of premeditated murder, the murderer has nO excuse for his crime, SO he deserves nO commu tation of ""nalty; rather, klll ing him as qi~~ (legal retribution) is applicable 10 him. Yet, if the prem.ditator murd.rer is pardoned by Ihe de<;eased's fam ily or legal representatives, i. . they decide not 10 kill him in retalialion, he is to bI' burdened by paying the diyah alone, without hi. r~lati"'es' support, as a m ~ans of redeeming his life. Thus, the d;yah becomes obligatory for him to pay, just like Ih~ obligation of paying indemnity for damages.

O>ap.<t s:DiE (Blood Mon.,.)

Diyah for Quasi-premeditated Murder and Manslaughter

Thf diyrJh in Iht:$ctwo cue! is paidby lhf Pf' PflnllOrl agnak~iVQ:. To iIl~ nlle, Ab6 Hunyrah (may An~ "" pleas! wilh him) narr:oted,

to""

"Two womenfrom (IM trillt oj) Hudiwylfo ught with taeh ot/w"'md of tMm hit the othu with 0 stone lhat killtd fMlh ~ and th~ fetus she comes. TII., killers agnate rela,;.....' ilrtd thOSt of rh", victim submju~d th",;, eau to the Prophel (P1JUH) whojudged thM tilt diyah for the fttus wru!l m!llt or f,m!ll, skive, !lnd that for the murdered woman was /0 I>e paid by Ihe mummer s agMlt relMivu"
on~

(Rdated by AI-Bukh1rl and Mus.lim) Thi. Qlldllh inclicatts that the diy<lh for quui ~meditaltd murder is 10 "" ~id by the f. mily ofth~ offmdrr. Conceminglhe diyrJh for maJUiaughter, Ibnul-Mundhlr said,

-)./1 rht jurislic sdwltlrs, on whost rulirtgs ~ rely, unllrtimousiy <w lhat rht diyWi (blood mont:y) for manskaughltT i$ to lit paid by tilt agnate rtkltilW of lire ptrpetfflIOr,"'
Moreover, AI_Muwaffaq said,
'Wt art not acquainted with any disagreement among scholars on lilt facl lhat it (j.t. Ih", diyah for man$laughltr) is 10 I>e paid by th", agrtale re/t21i1lf'S oJ the pcpetrtlIOr."

the same ruling alw applkli 10 I"" c..sa similar to manslaughter, such as falling on someone while asleep and killing him, digging a well or a hole aclt$Slvtly whtre someone falls therein and dies, and $uchlib casts.
Iht difGh is not required w""n killing is I"" rmolt of lcgaUy pc:rml$$iblc mallcrs, such as d iscipline and Ih~ like. For uamp!c, if a man kills his wife or son while disciplining Ihem, or if a ruler kiUs any of his subjects while diKiplioing him, th~re is no diyah Imposed on the kilkr. Th it b ~~ dillC ipline i. a legally pcnniuible deed, provl dcdthe killer has 001 ""en excus!ve nor hll5 he t!"llnsgressed the cuslomary li rnits whil e disciplining them. Othuwisc, if there is excessiveness or transgression IlIid death is the res\llt, then the diyah is to be paid. In thit concern. if di!.ciplining a pregnant woman causes her abortion. the pc:rpctnltor Is 10 pay tm di)'<lh for killing the felu" namely giving a mal e Of female siavf as ai,.,h. Thill ill due 10 the b."dllh recorded In the Two s",b.lb.s'
Ha...~r.

,,.

IX Ql,uS(lEGAL RETRIBUTION)

which .taus that the Prophet (PBUH) ga"" the judgment that a male or female slav.. is to k given as the diyah for causing a woman" abortion", This is the upio ion adopted by th. maj",ity of s(holal'!).

h er abortion, as when a mighty ruler summons her or when an en emy of h.", turns people of high of au thority against her. In such case .. th. is liable for tb. diyah for killing the fetus, as the d"", i. the main callS<' for its duth, To
C8llS<'$

It may happ"fl that someone scar a p~nant woman that

cl"",

exemplify, 'Umar Ibnul Khall~b, the gl"C'at Muslim Caliph. sent for a woman

whost husballd was ahstnt al\d th e-It wert rotne f>tOple who used 10 visit her.
Thereupon, she sa id:

' Woe to me! Why does 'Uma r ,end/or mel" On hIT way to . Urnr. being uared at the idea of meeting him, she sufJertdfrom the Ih~ of childbirth and gave birth to ~ m~le baby who just cried twiu ~nd died. 'Umar~sMdsom e of the Prophets Companions about the legal judgment concerning this incident ~nd .romt of them s~id to him, 'The,." i, no blame on you wnctTning th~t (i.e. you ~re not guilty;: Thereupon. 'AIi lbn Ab!) I<llib (moy Allah bt pleilJed with him) said, 'if/hey say that to 5uti5jy you, then they are not sinare 10 yow. You a,." to pay the diyah (blood money) for the boby, as you have scured her (by summoning h,,) so she ga~e birth to him untim ely: '
Furthermore, whoe~er orde,.,. " legally acrountable p"rson to desce nd a wd l, climb a tr~, or the lih, and that perS<ln rall< down ~nd dies while fulfilling Ihe o rder, the former is not liabl e for any di)'(lh, as he has done him neither wrongdoing nor transgression. Yer, if the victim is nOl a legally accountabl e pe!"S<ln, then the p"!"S<ln who has orderl'd him is liable for the diyah, as be i. th., cause of the victim's dutl!. In addition, if a perS<ln hires someone to descend a well or climb a tree for example and that hired p",.,.on di es dnring perform ing the task, th e hirl'r will not be liable for any di)'(lh, as there is neither transgression nor a.<sault on hi' part. Similarly, whoever hire omeone to dig him a well in his house and the hired p"rson dies due to an accidental collapse not cau",d by anyone, the hirer will not be liable for anything, as there is no transgression on his part. Hence, we realize to what extent Islam takes an intero.t in the pre..,rvation of lives And the prevention of blO<ldshed. Ne""rtheless, carel essness and negligen"" have become so widespread nowadays that some !",ople drive heedlessly and recklessly endangering their lives as well as the live. of others. Manyan innOCent ~()ul is destroyed as a re~ult of such h~dlessn=! Nowadays,

Chapter 5: Diyah (Blood M""9') the death of an ent i", gro up of (>topi c or 3 wh ole family can simply he caustd 311he hand~ of a yout h driving his car = kbsly and ir",$ponsibly wilhout the least consideration of the consequence$. Unforlunatdy, the parents of such h dless youth and Ins m ay he thecause of such tragedies, as they buy them lUJ(urious cars as if urging them to destroy innocent livrs. In this way, such parenlS give thei r children fatal weapons to play with, playing with the lives of inn"",nt people, causing them panic as well. Tho.se peopl e have to fear Allah concerning the way Ihey bring up their

children in their best inlerest, safeguarding their live! and the lives of others.
Moreover, those in autho rity have to deler whoever deserves deterrence to guarant safety, sec urity, and stability, for Allah may make authority the means of a mo", powerful deterrent - to some people _ than th e teachings ofth, Qur'1n.

Endnotes
1 Ditirnrn/: A fr non -Muslim hying in and und .. the prOl.cti"" of an 1.lam ic . tat . 2 &.: A./_Mug/,nl" (2128).

J See: A./ljrn~ " (po 74) . 4 See: A./. Mughnr (llI2l). S Th. TWo S/lb.lbo: the Two Authentic Books of Al-Bukhl.rI a nd Mcalim. 6 A.l-Bukh!rl (73 l7) [13/3651 and (6740) [ll130 1 a nd M",,]im (4373) (4366) (61176]. 7 . Abdur. Ruz1q ([&lllO) [9/4581_

[6/179J and

CHAPTER

Amounts of Diyah (Blood Money)

An amount ofdiyah differs on basi50fTslam, freedom, gender, and whether the murdered human is existent or still a fetus. The greatest amount of di)'<lh is the amount paid for killing a Muslim flU man; it is a thousand mithqdls I
of gold, twd"" thousand dirhams (Islamic dirhams of which every ten equal seve n mithq<lls of gold),' . hund red camels. two hundred cows, or two thousand sheep. This is according 10 the /.!adilh related by Aba DAwild on the authority of I,hi. (may Allah bf, plca..,d with him) that g~:
"The MeSjenger of Allah (PBUH) guve judgment that the diyah /0 be /'<lid by those possessing Cllme/s is o"e hundred camels. !ry those pout5j;ng wws is two hundred cow.., Ilnd by those poss=ing sheep

is two thousand sheep:'

IX

Q1W (LEGAL RETRlBtmON)

In addition, 'Ikrimah ""ported on the authority oflbn . Abbb;

A man was kiUed ,,,,d the Me""nger ofAllah (PBUH) gaw:j~dgment Ihm the diyah to be paid W<I$I ...elve Iho~$Cmd dirhams: ' (Related by AM mW\'ld and lbn M~jah)
Moreomc, it i~ stated in th. leUer the Prophet (PBUH) gave to . Amr lbn Jjazm: '

"One thousand dinars are 10 be paid (os diyah) by Ihe people possessing geld,"
(Related by An-NasaL) Scholars di.as"", as to which of the afo,..,mentionW types .hould be regardw as the orisinal type of diyah, Le. the sufficient one. In other words, they disas,..,e regard ing which type the guardian of a killw p" ... on i. obligw to aaept if the di}'tlh is paid in. According to some .cholars, th e victim's guardian is obliged to accept whatever typeofthe above-mentioned diyah, regardless of wh ether the guardian is originally a rosse!isor of that type or not, as long as the payer has fuInUed his obligation . A ""cond opinion, which is the judgment maintained by the majority of scholars, stipulates th.t only camels are th e main type to b<: paid as diyah. Thry base their opinion on the following two hodilhs: tht Prophet (PBUH) said:

"(The diyah) for (killing) 0 bdicv;ng soul (i.e. perSQn) is one hundred camel!;."
And:

Vuily. the diyah for mmels"

q~asi-premeditated

murder is one h~ndred

AM D~W\'Id also related that 'Umar !bnul-Khall~b (may Allah b<: pleased with him) once d eli""red a ""rmon and said:

"(Ameli have become dear," so he decreed thal the diyah /Q /Je paid by Iha,e PQsse.,ing gold is one thousand dinars, by those possessing . i/""r twelve thousands, by tl..,.~ {Wss/!Ssing cows two hundred rows, by those possessing sheep two thousand sheep, and by those possessing garments two h~ndred garments.'"
Sine.. the Messeng~r of Allah (I'BUH) was ,trict ,on,erning the payment of camd, as di}'tlh in ca"" of premeditated murder and was lenient in this regard in cases of manslaughter, then camels are the original type to be paid as di}'tlh; this is also the opinion upon which scho lars unanimowly agru d. In fact, this is the preponderant opinion in this regard, according to which the oth er aforementioned types of di)'llh are subsidiary and dependent on estimation.

In cues 0( premeditated .nd quasi-p~meditated murders. the di)'llh of camel" whicb a~ one hundrrd ClImd" a.~ paid exactly by being divid ed into four parU: ~nty five one-ytlr-old $he-CHIld" twenty five two-year-o ld sbe"mels. twenty five three-ytar-old me-c.;tmel and twen ty five fou r-year-old 5he-came~, That is according to the following rurration of Az_Zuh rl on the authority of As -Sl'ib Ibn Ynld, wl\o said:

"During the lifetime of Ihe Mesungu of AI/Ill! (PBUH). Ihe diJ"'lh WlIS divided inlo quarte~ twenty five ~~ar-o/J JhN~Ilmd5, Iwmty {Iff two-yeflr-otd sIre-aJmm, twmt)' fiw Ihrte-)"t"r-iHd she-comw. Ilnd hwnt)' fi'V't four-Y''llr-014 me-cllmtls."

So. if the p~Y"r of diyllh p;ays It In thi5 fashion. the guardian of the murderrd
person l$ o bliged to accept it. Moreover, t he payer can pay th e value o f each of the four groups of camels according to their esti mated price if M lik ...
At ftP, dsmanslaughter.the di)'flh U oot that strict; the hundred camels arc divided into fwe groups: twenty on.e-year-<>Id w -camels, twenty twG-yearokI l he-c;amds, ~nty th rff-ytar-oId she-camels. Iwtllty fou r-year-old sheeamel$. and IwfiIty one-year-old M-camels. or the value of these five groups according to their estimated pria.

The diyah to be paid for killing a free man of the People of the Scripturc (the Jews and the Christiaru) e<juals half the di)'~h paid for killing a M llSlim, be he a Dhimml, one of a people who are not Muslims' e nemies. or on e of a people enga~d in a peace treaty with Muslims. This ruling i5 based on the followinglllldirh narrated by "Amr Ihn Shu" ayb on the authority of his fatlw:r .nd hil grandfather rnptctil'dy:

lite MesMftgerof Allah (PBUHJ ga'V't judgment Ihm the diJ"lhfor (killing Ollt the Pfople of the Scriprurc is Mlf the diJ"lh fHlid for

on

(killinsJ a Muslim."
(Rdated by Imlm Abmad, Abll Dtwl1J. and oth~rcompnm of l:iildllh) The diyah paid for killins a magus is eight hund~d Islamic dirhams' (of which n-t:ry ten equal seven mirhI, " of gold). be he a Dhimml." ont of I people who a~ IIOt Musliml' enemit$, or """ of J people engaged in a peace Ircatywith Mw.lim.s. Th is judgment Is based on the following '""'If) -(traceable) hGdlth rqxx1ed by Ibn Adin on the authority of ' Uqbah Ihn "Amir (may Anah be pIeastd. with him) Ihal lhe Prophet (PBUH) said:

"The dl"yah paidfor killi"g a M~gi il right hu"drul dirl!llms.""

This I, t he opinion maintained by m05t IChollrs.

The diyah paid for killing a female Jew, Christian, Magi, Or Pagan i~ half the diyah paid for their mal .., just like the diyah paid for killing a Muslim woman is half the diyah paid for killing a Muslim man. IbnulMundhlr said in this connection, Schoia71llnanimOllsly agru thal the diyah paidfor killing a

'"'

IX Qf,v{S(LEGAL RE.TRIBLmON)

Muslim woman equals half th e diyah paid for killing a Muslim man. It;s slMed in the lettor the Prophtt (PBUH) gaVl' /0 'Amr Ibn Hazm: "The diyah paid for killing a woman is ha/fthe diyah paid for kiUing a man.""
The great Muslim scholar Ibnul-Qayylm (may Allah have mercy on him) "id:
Women art not equal to mm and are no/ as btnt.fidal as men are,

Mm can assume religious "fficts, assume guardianships. obstrW night watching. per/onn the dUly of jihcld (fighting in the CAuse
of Allah), Nlablish civilizat,"on., perform craft. indisperuabl. for

human lift. prottct their {>toplt and PrtSerw religion. unlib womel1. Hell"", the diyah paidfor killing a womal1 iJ Mot equal to that paid for killil1g a mall. Sil1ce wom" l1 are 1101 equal 10 mm. the Lawgiver" rel1dered a WOmal1~ diyah half a mans diyah: "

In castS of wounds, tht di)'llh of a woman is tqual to that of a man as long as the legal amount to be paid is It$.!; than the third of the di}'Qh for murder. This
is based on the marfU' badllh narrated by , Amr Ibo Shu' ayb 00 the authority

of his father and his grandfather resp"ctivd y; the Prophet (PBUH) said:

"Th. diyah (il1demnity for a wound) of a WOmal1 is equat to that

of a man unit.. it d~ not reach a third of the mans diyah (blood money).""
This badith was rdated by An-Nu:"!, and the ruling therein was stated as SUllllah (Prophffi<: Tradition) by Sa'id IbnulMwayyab, lhnul-Qayyim also
~ id:

':4.lthouglt Ab .. Iial1ijah, AJ},SMji", and oth.,. disagree with that ruling, mainJail1ing that the diyah of a woman ;s half that of a maM ill all ruses, the Sunn"h is more deserving to be followed. If, ill cases of wounds, a WOman iJ paid halfoflht diyah, i.e. half a marls diyah for a similar wound, it will be loo lilt~ to com{>tllsate an afflicted woman. Therefore, ill cases of wounds, a womans diyah (indemnity) is equal 10 that of a man as long as i/ doel not rt a{:h third of the mans diyah (blood mOl1q) paid in case of murda. A "'Qmans diyah

Ch.p,,,, 6, Amountl of DiJah (Blood Mon:y)

~,

ij made equalta (hat of a mnn, not halfafit, as long as it is It ss than

the third of the amount oftht man" di)'llh in ,"se of murder, so that a woman may be compen$<lted sufficitntly. For this same ",,,,on, the diyah paid for killh1g a fttus, mnle Or female, is th e sam e because the diyah of a fttus i> already so littl . The some ruling O/l fetuU$ i> applied to the a1Ut of diyahfor a woman. wound as long as it doa not r<w;h OM third of the man. diyah for a murder.""

The diyah for a .. rfis equal his/her worth, be the serf a male Or .. female, a child or an adult, with no maximum amount, as long as it d""s not exceed a flU man's diy<th, a~ schol..", unanimowly ag=. However, Ahmad, r-ulik, Ash -Shafi 'i, and AM Yusuf maintain that a .. rf's diyah is equal his/her worth, evtn ifit exceeds the di)'llh of a fr~ man. If a pregnant woman is assaulted and she has suffered abortion as a result, the diyah for the dead fetus, be it male or female, is aghurmh. which is a child J male of female 5e f whose value is estimatM as five camels. This is according to the hadilh narrated by AM Hurayrah (may Allah be pleased with him) that states; "The MessengITof Allah (PBUH) gave thejudgment that aghurrah is to be given (as diyah) for an abortion caS/! of a woman from (the (ribe of) Bam' Labyo1n."" (Related by A[-BukMrl and Mus[im), According to the majority of ",holars, that ghurrah (the serf or the five camels), which equals one tenth of the diyah (blood money) paid for killing a woman, is inherited by the dead fetus' legal heirs, because it i. the diyah for its murder.

Endnotes
I Mit/"1<IJ: A .... ndaru meMur< that <qu. l. 4.15 gra m. 2 A dirhom of , ;I,-e, <quol. 2.975 g",m. of 5il...". 3 AM DIWlld (4!>H) [4/44 tl. 4 Ab.:. DiWlld (4546) [4/ 4431, A, Ti,midhi ( 1392) [4/ IZI, An N...'! (480; ) [414131, .nd lbn Mljah (2629) [31268]. 5 The Proph<1 (PB UH) oru"r<J th.t thi. l<1'<r b. written and gi""n '0 Am, Ib" liazm '0 J.Ii r it to 'he pwpte of Yemen.

'"

IX Q/W (LEGAL RETRJlIlJIlON)

6 Din, ,, An ok! Arah <oin ,h., {ual, 4.25 g",n" of gold. 7 AM Diwli.d (4542) [4/HI ), 8 An N ...11 (noo 41\68 48n) [4/42A.430 1 9 A dirh, m of .ilver 0<1",,1. 2.975 StoOl' of .il,... 10 Milhq~l: A "ondanl me,'urt th.t <quol. ( .25 gram . I1 Dili",,,,I: A f= ""nMmlim living in and under t~ prottiOl1 of an IsJ,mk .t.le. 12 AiHl Dl wUd (4583) 14/459J, AtTirmidhi (1417) 14/251, An-Nw, (4820) (4/4141 nd loo Ml.jah (26(4) [3/ 276]. 13 AI a.yhoql in his. A,S~n~" ( 16344) (S1176j, At-Tirmidhl (4126], . nd AI. Bayla<jl (16338) ISI!7S1. 14 Thr u W!;"'" ofth. ,<,:h.,rl' oh (Wornic law);, Allah, Euhed be He, thottrm can.l'<l rtkr to the Prophet (PIIUH) as he ntVtf ",dained but ,,hal waS ,.v.oird to him by AIl, h15 ~: "/ ' Mm AI.M"""'!i'ln" 12/149] and ZMu1MIl'd,r' 1 312(5) . 16 AnNod'l (48 19) 1414141_ 17 ~ ' l'Ulm AI-M_qj'ln"jlIl48-149]. 18 Al-Bukhlrl (6740) and An-N.slii (4821).

CHAPTER

Diyah (Indemnity) for Body Organs, Senses and Functions

First: Diyilh (Indemnity) for Organs

Some scholars aver lhat there are fortyrlVe organs ill tilt hllll\an body.
Some oftheseorgam IU unique. others a~ in pairs. and IOn"~ ~ more than two paru. Jfa unique o'W"'. ~h as the n()$t, the tongue. or IM,.w" organ. is damagw. diJlDh (indemnity) for it nJual~ the diya}l (blood money) p oid if
th., injured person was murdered. Thercfon, the amount of dj)'llh i. e-oti mated o n the prevl(lu$iy defined basis. wh ether th e injured person is male or female,

free or a $Iave. Musli m or not Thi. is because damasing a 5(11. organ that Allah
ha.! created unique damages the enti re rU1Idion of th~t organ. This is what makes it ,I mill' 1 murder. hence deRrving diyah equal to that paid in cases 0 of murder i.i agrttd upon by all scholars. 11 i. Italed in the Idler the Prophet (PBUH) gaw to ' Am. [bn Hazrn:

IX QfW(LEGAL RETRlBUllON)

-The malt argan (if rul off or wholly damaged) neCe5jilales Ihe lotal amount of diyah (blood money); and (similarly) the nose, if cut off or wholly damaged, necessila/e5 the total amount of diyah; and (similarly) the tongue necessitates the total amount ofdiyah."
(Related by Ahmad, An-Nas;\'. and deemed ~h'h {.utheotic} /!adith by Ahmad.lbn t\ibban, AI-t\1kim, aod AIBayhaqi)

As for the body organs existing in pairs, they are, for example. the eyes. the ears. the lips, the jaws, the bl'<'asts. the hands, the arms. the legs. and the testicles. If the pair of organs is damaged. the total amount of diya}t is to k paid; if one of them is damaged. half the diyah is to k paid, because their
lies in their function. aesthetic value, and the fact that thel'<' '1'<' only two of them in the body. Al-Muwaffaq said that there was not a single scholar who disagret-d on that ruling '.
It is stated in the letter the Prophet {PBUH} gave to . Amr Ibn t\azm:
importan~

The nose, if ,ut off or wholly damaged, necessitates the total "mount of "iy"h (blood money); ,,"d (simil"r/y) the tongue (if cut off or wholly damaged) necessitates the total amount of diyah; "nd (similarly) the lips necessU"te the to/al amount of diyah; and (similarly) the testicles necessit<lle the total amount af diyah; and (similarly) Ihe backbone nece5jitates the total amount of diyah; and (similarly) the eyes necessitate the total amount of diyah; and (similarly) one leg necessitates half the lotal amoum of diyah."
Ibn . AbduJ -Ban (may Allah have mercy on him) said,
H '

-ne Idter written

(by the Proph.r) to Amr IIm Hazm is well-known 10 scholars. Its contents ure agreed upon, with 0 few exctpa"n .
As for th~ human body organs conSisting of thr.., parts. if the thrtt an:

damaged, the total amount of diY"h (blood money) is to k paid, and if one is damaged, one third of the diyah is to k paid. and so on. For example, a nose consist.'l of thrtt parts. namely two nostrils and the cartilage that separates them; the diyah is dividt-d among the thl'<'e of them. Regarding the body organs consisting offour parts, if the four are damaged. the total amount of diYl'h {blood money} is to be paid. If only one of the four

Ch'er 7, [);ph (lndemni<y) for Rodr O'lfIU, Sroo<a ",d FuncOoIU

organs is damaged, one-fo urth of the di)'ilh is to be paid. The four eyelids are an example of such O'1!an.s; if the four eyelids are damaged, the total amount of diyah is to be paid. Thil is because the eyelids have an aesthetk value and an important function, as they cover the eyes and protect them against hot and cold weather. So, a quarter of the total amount of dry,m is to be paid if one of them is damaged, and so on.

If the ten fingers or the ten toes are cut off, the total amount of di}'llh is to be paid. The indemnity for each finger or toe equals one_tenth of the total amount of di)'ilh. lbn 'AbMs narrated (in a marfo ' bad/lh) that the Prophet (PBUH) ",id:
The indemnify to be paid in C<l.5~ th~ fi"gm Or tlu toes a re cut off is equal; ttn camro for ellCh finger or t~.~'

(Related and d~med Iahlll (authentic) by At-TIrmidht) AJ-Bukhlrl also related on the authority of Ibn . Abbb that the Prophet
(PBUH ) said:

"This and th~t (referring to the little fing" and the thumb) are th e same (conc~rning Ih~ dut di)'ilh). ... Those two nMl"3tio!U show that it is obligatory to pay the diyah (indemnity) in case of damaging (or cuning off) any of the fingers Or the toes; one-tenth of the total amount of diya}t is to be paid for each. The diyah (indemnity) for each knucklebone of a finger or a toe is onethird of a tenth oflhe tob.! amount of di)'ilh (approximately 3.3%). Since each finger has Ihrff knucklebones. the di}'llh for each finger is divided among the thr~ knucklebones. Similarly, since a thumb has only two knucklebones, the di)'ilh for each is half the tenth of the total amount of di)'llh (i.e. 5%), and the !IIlme applies to the toes.. The diy<lh for each tooth i$ half the tenth of the total amount of diyah, i.e., five camels. In a marfir lladith, Amr lbn Hazm narrated that the Prophet
(PBUH ) said:

"F;"".:am.!1.$ an: to

~ paid

(as indemnity) for a tooth."

(Related by An-Nad1) Al_Muwffaq oommented. "Then: iJ no diliagru mm t among scholars On the fact that the indemnity for Ulch tooth is five camels."'

IX Q/W (LGAL REllUBl1ll0 N)

Second: Diyah (Indemnity) for Functions

word "fun'tions" h~~ ~fers to the functlo!l.l of lhe aforemenlioned orga ns, such as hearing, sight, smell, spttch, movement, etc., due to the fact thal tach organ has .. spirlC function. Thus, Ihe four stn$e$. namely h~uing, Slghl , smell, and !alle, art among IlK body functions. If any OIK of thnn is damagal, the lotal amounl of di)'llh is 10 ~ Jnid in compmsalion. "Tht majority ofschoIon Ilgrft 'IMII~ 101.. / omolllll of difrlh is 10 "'paid if the $mM ofltt:arillg is m.magtd." said Ibnul-Mondh ir. A1MuWflffaq also said. -n.n-e is
no jurislic disagru""n, 011 ,~ ab/iga'wlI of/"'1illg ,Ire 1010/ "ntOwn' of diyah ill (omptll!ill/ioll for dalllnglllg SOllltontS stnst of Ma ring:' It is stated in the letter
Th~

the Prophet (PBUH) gave to ' Amr Ibn Hazm:

total 01110",11 of diyah is la bt paid for damaging stnse of smell:

'Tht

someollt~

During the reign of ' Umar IbnulKha.u~b (may Allah ~ pleased with him). a man beat ilOOther IIntillhe latler lost hi. hu ring. , ight. Janit)'. and hiJ ability 10 ropulak. As a /"QUI! , . Umar passed a judgment Ihal four amounts of the total amount 0( diyah l'It1'e 10 ~ paid 10 that man (Le. his guardian). It is noteworthy that none of the Companion~ objectffi 10 that judgment paW<! by . Urnar.

The total amount of diyah is to be paid fm" each of lhese funclions, such u damaging som<'One's faculty of speech, ~r of reason. ability to walk. ability to eat, ability 10 copulate, ability to control urinating Or ac;reling. Thl' is becallse each of these fun"ions i$ of a gm! ~neflt for man that it could not ~ ooml"'nsatnL Damaging the hair of the four pans 0( tm body (namely the hair of the head . the beard, the eydlrows, and the eydashn) obligates paying the total amount of di",h (blood mo ney) in coml"'nsation for each. If one eyebrow Is damaged. halfthe total amount of diyah is to ~ paid. trlhe hair of one line of the eyelashe. is damaged. a quaru.r of the lotal .mount of diyah is to be paid, because the di",h is divldffi among Ihe four lines of e~Jashes. This d",," allention to the :act Ihat Islam gre~tly IUpts and honon a man's burd. This is why damaging a beard necefoSit.les: th, p.ayment of the IOtal amount of diyah. A man's beard is d i&nified thanla to its fun"ioo. aesthelic value. and Im solemnity it givn to onc', apl"'aran,e. The MeuenS"r of Allah (PBUH) enjoined Muslim, 10 grow their beard, and groom them well. He (PBUH) prohibited Musl ims from .having their beard.! orcutling them ,hoMo

ChaE' 7, DiE (Indemnity) for Body Organ &!IKS ond Function.

Therefore, woe 10 those who transgress by shaving their beards; Iheythuscopy the appearance of women, disbelieving people and hypocrites, and give up their manliness to effeminacy. This is why a poet "'id:

"Mun ut times of moral aiJl;clion

May ..e what is ugly as porfrction"

Men who follow this altitude should come to reason , reconsider their conduct, and obey the Messenger of Allah (PBUH), who ordered Muslim men to grow their beards that Allah created for them as signs of beauty and manliness.

Endnotes
1 Su tilt footnote in "Ar-Rawd A/Mumr" [7/257 ). 2 See tilt footnote in ",;rRawd AJMurbi '" [71257]. 3 At-Tinnidhl (1395) 141D1.

4 AIBukh! rI (6895) It 2/2801

6See" iII ljm~

5 See: "AI.Mughn; (12/ !.lO) Ip 168]. 7 Se.: AI-Mughn; (1 Ut I 5).

CHAPTER

Diyah (Indemnity) for Wounds and Fractures

A- Wounds
Andent Arabs dd'ined ten kinds of face and head wounds; each of them has its own name and rulin g conc",ning diyllh (indemnity). I -Abrasion, Injury t hat causes the ski n tn be scraped without bleeding. 2- Scarification: Injury that causes shallow cu ts in the epidermis with

little bleeding.
3-Flesh-cutting wound: Injury that causes bolh the epidermit and the flesh to be cut, but not ID duply.

4-Deep fla b-cutting wound: Injury that calJ.St;'l the fksh 10 b!: d:ply cuI.

''''
covering the surface of bone$).

IX Q/W {lEGAl. RITRiIlUllON)

S-NOIl-periosltOIl5 wound: Injury that ,.uses the skin!O be so deeply C that it il about to reach the ~riostt'Um (lhe dense fibrous membrane UI These five kinds of wounds do not ha"" fbed amounts of diyah stated by the Lawsiver. RalMr, diyah is left 10 the nli malion of th .. judge.

jurist, or the onc in Ieg;ol authority. 6-BoDc-dring wound: Injury'n which the wound is sodp that the 00"" is I,Inc~~. ~ diyah fur Ihis _nd is five Qlmds. for ' Amr Ibn Hum nllTlltro that IM Prophet {PBU H j Aid:

"Fiw romtls art /0 M paid (as intUmn;ly) for a bont-dMTing WQUlld."

' . Bone-breaklng wound: Inj ury in which Ihe bone is both unC<>Vt:rN and broke n. The diyah for this kind of wound is len amels as maintained by byd Ihn Th1bit (may Allah be pleased wilh him)' and no OM of th .. Prophet5 Companions was known to have questioned IM ""rity of th is . ... Iing.

8-8one-bnaklng-and -dislocating wound: Injury in wbkh the woun d Clu.stl the bones to be un oovtred, broken, an d dislocated so that a Done would need to be both rdocated and splinted. The diYDh (or such a wound is fifteen came~. It i tated in the letter written by the Prophet (PBUH ) to . Amr Ibn Hum that he (PBUH ) uid:
-Fif/un C4IWU arr 10 N fXlid (as inthmnity)joT Q IMnf.bnakingQnd. dislocQ.ing wound:

9-Skull-fracturing wound: Injury that rt.chu the outer cover of the brain . ID-Brain wound: Injury in which the layer coveri ng the br.tin i. p"ndratW. The di)'llh (indemnity) for the last two typn of wounds equals one third of the tou l amount of diylih (blood money). Th is is betaUK ' Amr Ibn Hu m narrated that the Prophe1 (PBU H) Rid.

"One thinlo! IM rOlo} oltKlunt of diy<lh (blood monq) jj to be fXlid (as

indl!mnity) fo r 11 sklll/inKtllnng WOllnd:

Since a brain wound il morr serious. and can hardly be survived. no certain indelll nity was spt'dfll'd for it. as it usually leads to death.

Chap1<r B: fJiyah (Indemnity) for Woundr.nd F""tuT<5

571

For a wound thal reaches Ih e inner part of the head (or Ihe abdomen. th.e head. the back. the chest, Ihe throal, elc.), one Ihird of the tOlal amounl of diyah (blood. money) is to be paid . It is stated in the teller given by the Prophet (PBUH) to 'Amr Ibn Hazm,

"One third of the diyah (blood money) is to bt p~id (~S indemnity) for the wound that reaches the imler part of the head."
Imim Al.M uwaffa'l said,

"This i$ the opinion maintained by Ih. majority ofscholars, among Ihem are the Scholars of Medina. thou of Kufa, the Scholars of l:i.adllh, and the Scholars of Interpmiyt: Opinions."'

B- Fractures
For a broken rib, that a splint could fix, the indemnity is one camel The indemnity i. also onc camel for each of t he two david e. '. It wa.'l narrated that ' Umar IbnulKhat!Jb (may Allah be pleased with him) said:

"Th" diyah (indemnity) for (breaking) a rib is one camel'. The diyah far a clavicle is one camel:'
However. if a rib or a davicle does not heal pro!",rly, a juristic assembly is la be held to estimate the pro!"" diyah to be paid. If an arm, forearm, thigh, leg, or wrist is broken and heals properly, the indemnity for it is two camels. Sa'id narrated on the authority of' Amr Ibn Shu'ayb:
"'Am . Ibnul 'AI (may Allah be pleased with him) wrote to 'Um .. r

Ibm.dKh<ln<lb asking him aboul/he legal diyah (indemnity) for .. broken forearm. Um.., ..nswered him that the diy..h fo, it is tW<J mme/s, .. nd four [..md, for breaking bMhfareMffis."
In addition, none of the Companions disagreed on that ruling. In cascs of wonnds and fractur .. for which nO certain sums of diyah (indemn ity) are specified, such as the spinal column and pubis, the diyah is 10 be estimated by a juristic assembly or the judge, Al Muwaffaq (may Allah have mercy on him) said:

"Th" sound opinion is / hat there is ""jurist icesti malio" (01 i ndem" jly) eXCf'Pf in tht five (05tS' <> rib, any of the two clavicles, and any "1 the two forearms (<>5 their indemnities are already s~(ifr,d). Indeed, t~filtlMjQtt i~ adDpted only to deternJin~ the du~ mHo~ nt afindemnity

IX Q/W(LEGAL RETRlBlTfION)

for fractum other than th. afo rementioned (m.s. According to kgal proofs. tstimation through juri.tic a.....mbly (or the judge) is obligatory in such ca~s as adopted during th. rtign of' Umar......
Scholars maintain that an .. timattd sum of compensation for a kind of a wound that afflicts a certain hody part must not exceed a fIXed sum of compensation allocated for. mOre ",rious wound in the same hody parI. That i. to say, the amount of indemnity estimMed by the judge to compensate a vktim for a wound 1 ",rious than a bonedearing wound must not exceed the fixed ."" indemnity paid in ca.se of a bone.c!earing wound, which is five ~amd . If the victim completely recovers and suffers no complications, the diyah (indemnity) should be r~roactively ..timated on the basis of hi. state while injured, when his state is worth diyah (indemnity) and his life is endange=:l due to the effect of injury.

Endnotes
I Al-Bayhaql (16203)
[8tl~41

and' Alxlur.R.a=1q (17348)

[~/J I4 ).

2 "A!.Mugilnr (12/!66).
3 C!avicle: A col!.rhont het .... n the ohould .. and the neck <>n ch ,id. of tM body. 4 Ibn AI>il Shaybah (27126) (5/3801 . nd . AbdurRaudq (17607) [9/36715 Ibn Abn Shaybl h (20946) (51365] and' Ahdur.RazzAq (17578) 19/362). 6 5<0: "A/.Mugnnr (12/166).

CHAPTER

Expiation for Murder

Expiation is a cover~ge of and an atonement for sino. The~ are evidenc ... in the Qur'~n, Sunn,," (Prophetic Tradition), and con""nsu. of Muslim scholars that expiation is an obligation. Allah, Exalted k He, .ay.,
~And /IeVeT

i$ it for a believ", to kill a InU""tr except by

mistilke. And whoner kills a b el/e"er by mlslake - then the

freting of a believing . Iave and a ,,,mptnslltlcl1l pllyment ("'),alll pr~enttd to hi' [i.e th e dece".td's) jllmi/y [/$ rtqulrtdJ unleu they give {up their right a. ,,} charity. But if he {i.e., t"e decea.ed] "'alfrom a people <It with rllll " ..d he wou a beline. then {only} the/ruing of a bt/ieving sI,lVe; and if he was from a people with wh"m you h,,,,,, a treaty _ then a compensation payment pu..,.. t"d to hl./amlly .md the frulng of a believing dove. And wh,..,,,er doe. "ot find

"'Q'

IX Q/W(LEGAL RETR!BlfI10N)
{one or eu,,"ot (l.fford to buy ollel- then {i".tead/, afu.tfor two mOllths comulltivel", {Jukillg] accepwtra ofrepentilnu from Allah. Alld Allah i. ever Kllow.ng (l.lld Wi.e.~ (Qur'An: An -NisA'; 92)

AbO. mwild and An-Na.,i1 rdated that ; said "'garding a murderer:

t~

Messenger of Allah (PBUH)

"Fru a slave for him (i.e., for the murdtrer) so that Allah would free for each part of his body (the freed ,Iav""s body) a part of the murdmr~fro," the Hellfire."

Expiation is an obligation only in cases of manslaughter and quasipremeditated murder, On the other hand, no expiation i~ enjoined ror premeditated murder, for Allah says:
"But whoever kills a believer intelltionally - hi. ruompense is Hell, wherelll he will abidedemol'y, and Allah hllSbecome angry with him <11Id hllScursed him ilIId hllS prtparedforhim u greut pUII/.hment." (Qur'an: An-NisA': 93)

Therc is nothing regarding expiation mentioned in this case,

It was also related that Suwayd Ibnuli-S~mit h ad intentionally murdered

a man, and the Me-ssenger of Allah (PBUH) commanded that he should

In, killed and did not obligate expiation in his case. Also. when' Amr lbn

Umayyah AJi-Uamrl intentionally murdeTed two men. the Messenger of Allah (PBUH) ordered diyah (blood money) to In, paid to their kinfolks, and did ask 'Amr Ibn Umayyah to make any expialion. The wisdom bdtind expiation is the alleviation of the sin. as marnlaughter in most cases results from inattentiveness, unlike the major sin of premeditated murder, wbich is too grave 10 be alleviated by expiation. Shaykhal-bUm Ibn Taymiyah (may Allah have mercy 0J1. him) !aid:
perj~ry.

"No expiation is enjoined for premedilaud murder. nor i. it for And this i. not commutation of the penalty to be applied to the siMe,,"'

Moreover, Muwaffaqud-Dln Ibn Qudimah et a1. maintain that:

"Mamlaughter can neither mckl"ified <lS a prohibittd nOT permissible act, for it is jwt lih the Cllse of a mu.rder committed by a demented person. However, sinCll it (mallsIQughttr) caU.us the upiry of a h~man soul, which enjoy. a slale of sanctily and preservation, expiotion becomes obligatory in this c<lse .. :

Ch'ptor 9: Expi .. ion fo' Mu,"" According to the above, the wisdom behind the prescription of expiation for manslaughter lies in two points: First, Manslaughter is always the result of the murderer's negligence and inattenti""ness. Second: Expiation is enjoined due to the sanctity of the human soul extermi nated. As for premeditated murder, there is no expiation called for in such a case, as expiation cannot alleviate such a grave sin. Nevertheless, remorse, repentance, and giving oneself up to the authorities for retaliati on, assuage a murderer', .in. Hence. his duty towards Allah will b. fulfilled through repentance, and thaltoward, the victim's guardians through retaliation, unless they grant him forgiveness . Only the right of the victim remains unfuLfilled and Allah would compensate him in the way He please~ Thi s is th e opinion maintained by lbnul Qayyim in this regard, as stated in his A/-/awJbu/Kllfi (The S"fficimf AnsWI'T) ' . A person who commits manslaughter against any inviolable soul, even if it was that of a slave, a disbeliever under a covenant with Muslim., Or a fetus through assaulti ng it, mother, must expiate for it. Allah, Exalted be He, say.,
. And ",h_r kill. a beliepu by mlslau - the" thefruing t)f a be/ieplng .Iaw IJtld a eomJU"sati"tI p"yme"t (diyah] preJented to h" {Le., the decea.ed'.] family [is required] utlleu they giw [up their right as a] charity, But iflu [i.e., Ihe decea.ed] was frt)m a JUople at war with y"u a"d he was a believer then {t)"ly} the /reeitlg ofa bellevf"g slaYl'; and ifhe wa.o from a f1e<'ple with whom you have a treaty - the" a ct)mJUusatil}ll P"y,",nl prutHltd It) hu family ond the freeing of a believing .laYl'. And ..mt)epu dlJa tlot fitld [one t)rcannt)1 afford to buy one] - then [instead}, a fast for tWl> months e,..,secutiwly, {..,eking] acclptanN! of repentanu from Allah. And Allah I. ever Knowing and Wi.u:."

(Qur'an: An-Nisa': 92)

So, expiation is obligatory in manslaughter whether the murderer commits it himself or with accomplice<, directly or indirectly, a. in cases of digging a big hole excessively and carelessly, setting up a knife or a pointed thing !;Omewhere, or committing any suchlike trespasses that result in someone', death. AlMuwaffaq said:

"Each of the accomplices (in manslaughter) is obliged to expiate for it, as maintained by most scho/a", among them are Mdlile. AshSMfi't, and all Scho/ars of Inlerpee/IV(' Opinion,.")

576

tX Q/SA.\:(lEGAL REllUBUTION)

According to the general meaning of th e aforementioned verse. expiation for manslaughter is an obligation on the murderer with no exception, e""n if hewas a minor, an insane person. or a slave. The manner of expiation for manslaughter is freeing a bdiev:ing Muslim slave, or, if one cannot afford emancipation, ob~rving fast for two months consecutively. It is worth mentioning here that the feeding of an adequate number of underprivileged people is not a sufficient suhstitute for fasting. So, if the murderer is unahle to fast, his obligation of expiation will remain unfulfilled. This is because: Allah d=.! not mention any substitute for expiation in the verse, and the availability of alternative expiation depends on legal texts, not on analogical deduction. In case: the killer in manslaughter is an insane p"rson or a minor, his guardian i. obliged 10 free a slave on his behalf. This is because none of them is qualified toobserve fasting, nor is il permissible to observefastingon someone's behalf. Thw, in cas-e of manslaughter, expiation is an obligation on these two incompetent p"rsons (an ins.ane p"rson or a minor) because expiation is it pecuniary duty like diyah, or a pecuniary act of worship like Zak<lh. Expiation is ne<:es.sitated for each manslaughter committed by the same p"rson,just like the case with diyah (blood money). However, it is noteworthy that there are some cases in which killing is (>f'rmiilSible, such as killing a trespasser, an apostate, or an adulterer, in addition to killing in cases of retaliation, retrihution, and selfdefense. In such cases, no expiation is called for, because there would be no s.anctity for the mu rdeted soul It i. important to point out that people nowadays disregard the expiation for manslaughter, although many are killed in car accidents. It usuaUy happens that perpetrators of manslaughter are reluctant to observe fasting, especially if they have to expiate for more than one accident of manslaughter. Hence, their duty of expiation remains unfulfilled. Moreover, it has become common that the families of the manslaughter perpetrators do not payor even share in the legal diyah, and th();Se who share in it regard it as a voluntary act of charity. It i. no wonder then that some p"rp<trators of manslaughter ask for charity in order to be able to pay the expiatory money, which hinders the fulfillment of such a religious obligation out of ignorance of such religious rulings. On the other hand, som e swindlers may daim they are under debt to pay their expiatory money w that they would unjustly get charity. Such frauds might even support their lies with illegal, forged, or outdated document., so they must be severely d<terred.

EndnotH
1 SH: "UlJjrtrlt 'IIlF.ot.twd" ( 131170). 2 Sec JbnuJ-Qoyyim in h i<' AI-/4w4bvJ-KJJJr' ( Tht

s..JJ'odI"' Aiu ....r) (p. .H8-lSO).

1 SH: "AI.MUJlmI" 11 01391.

CHAPTER

Qasamah (Compurgation)
(compurgat ion) refers to a num~r of oaths ta~n to d ear someone from the accusation of murdering an innocent person. Such procnlu,", of taking oath is to be followed when the body of a murdned p"lson i. found, the identity of his murderer is not known. and SOmeone in particular is SUSpIW.
Qas~mah

Evidence from the Sw",,,h and the consensus of juristic scholars prove, the authenticity of this practice. It is , d ated in th e Two ~biflS Oil the authority

of Sah! Ibn Abu Hathmah,

"Both 'AbdullAh lbn Sahl and Muu"yyi~ Ibn Mas'ud set forward to Khaybar. Then, Mubayyilah found 'Abdu/Mh 1/", s"hl while the latler wa.< bleeding profusely. Mub.ayyj~ah said 10 ,he Jews there, 'YOII ha~e muroued him.' They said, 'No.' 111.", (when 'Abdu/Mh:' rdatj~es wtlll and informed A/lahs MWenger,! the Messenger of Allah (PBUH) said to Ihem 'Would you take an oalh (that the Jews did it) and In dtjerving of your kinsman$ d,'yaM' (In anorher

580

IX Q1W (LEGAL RETRIBUTION)

narration, he (PBUH) said to them, 'Om you prr:wide a prooj?J When they said they Ciluld nor, the Mem nger of Allah (PBUH) asked, 'Would you wu an oath (that the Jews have kilk d him}?'1ky ('AbdullAhs re!ati\lej) replied, 'How run we tau an oath while we witnessed nothing?' 1k Messenger of Allah (PBUH) then suggtjted, 'Then the Jews are to clear themselves (from the charge) by taking fifty aaths.' 'fMy ('AbdullAhs relatives) Ulid, 'How am we trwlthe aatJu of a disbelieving peopk (reforring to the Jews)?' Finally, (to put an end to the dispute), tilt Mesunger of Allah (PBUH) ordered that a hundred camtls ohould be paid (to the vidim~ folks) as diyahfor the murdered."'
This badllh is all evidence th.t qa.amah is a legal procedure in ].slam and that it is an independent part of Sahrl' ah (Islamic Law) and one of the principles oflegal rulings, which particularize general proofs.

The Conditions for Qasdmah (Compurgation)

1- Enmity
One of the most important conditions for qasWnllh is the existen~ of manifest hostility b<:tween the victim and the susp!:ct, like the case with vindictive trib<:s or individuals leading to likdy swpicion. The !tinfoils of the victim are then entitled to tale the oaths of anyone they susp!:ct, even if they were not eyewitnesses of the crime. Shaykhul-lsUm Ibn Taymlyah (may Allah have mercy on him) maintains that hostility (borne by the suspect to th e victim) is not th e only factor considered in the case, but there are other aJipel'ls that male the .ausation likelier to be valid, such as a group of peoples departure from a certain place leaving a killed ptt"S<ln behind, the testimony of incompetent witnesses ... eIC. Imbn Ahnu.d said:

resort 10 q~,""h if then is SOme inadequatt tes1imon)l if thtrt is ~ good reaso/'! fin" the accusation, if there is hostility (belwe,," the swpt IInd the vidim), or if the smptct is notorious for committing such a murder."'
"I

ShaykJIul-lslim Ibn Tayml)'2h commented on this saying;

-lm4m Ahmad mentionMfour uasons (fin" rWJrring IQ qasdmllh); the pmenet of witlltSStS whrue /tjtimony is iMdtquate due to incompetence, the existenet of11 good reason for the IIccuUlrion, such as

~RI

group ofJ-opl/s dcp~rturt' from ~ ctrt~in pl~ct ltaviMg the victim behind, the prt'StMct of hostility betWM the ...spect ~nd the victim, or the SWJ-Cl's notodou'n .... for committing murder. And these ~re sound rt'asom."
~

Ibnul-Qayylm (may Allah have mercy on him) also said:

"These nrt' the be.t bt" .. of compurg~tion, n. they rely on the nppart'nt sigm that support the plaintiffs allegation and, aCCOrdiMgly, it becomts permissible for the plaintiff to tMe <Xltm. Th e judg>: in this caSt ;' entitled, or rather obligated, to eMtitle the pl<lintiff- in this case tlu: victims ne~rjt kinfo1k- to retaliation or diy<lh, eVtn though the judge knows the plaintiff is not an eye witness of the crime.
The victim's kinfolks, however, muSI not take oath~ unlrss thl:)' art' nearly certain of their allegation, On the other hand, the judge must preach the victim's kinfolk on the punishment awaiting those. who rommit p<:rjury. 2- Legal Accountability Among the conditions for qasdmah i. that the susp<:ct must bt legally accountable; allegation cannot be made against a ch ild Or an insane p<:rson.

3- Availability
11 is a rondition that Ihe SUSpe.:1 must be able to have committed the murder. Hence, if the suspect has been far from the crime scene at the time when il has been committed, the allegation is reje.:ted.

The Way Qasdmah (Compurgation) is Made

If the pro:viou.sly mentioned conditions all' fulfilled, Ihe plainliffs. Ihe victim's kin folks, are asked to take fifty oaths that they believe a particular p<:rson commitled Ihe murder. The share of each of them in the number of oaths should be equal to their .hall' in the victim'. inheritance, The accu~d p<:rson must be prese.nt during the taking of oaths. If the vktim's inheritors abstain from taking the fifty oaths or from rompleting Ih em , the accused is asked to take fifty oaths that he is innocent, provided that the plaintiffs accept his taking of oaths. If the accus<:d person completes the fifty oaths, then he is deemed innocent. However, if the plaintiffs do not agree to the accused person's taking of oaths, the judge must order the diyah to be paid from the Public TIl'a5ury. Thi. is because when the An..<lr Il'fused to let the Jews take oaths, .. menlioned above, the MesiU: nger of Allah (PBUH) oroell'd the diy<lh

~82

IX Q/W (LEGAL RETRISUllON)

to be paid from the Public Treasury, as there is no longer any means of proving the guilt of the a"u~d, so that th e murder of the innocent victim would not be uncompensated. Scholan disagree regarding th e legal con~quencc. of a valid process of qasJmah if its conditions are fuWJled and the guardians of the victim have taken the fifty oaths. However, the wund opinion i. that if th", conditions ofretaliation are fulfilled, the a"u~d person i. to he killffi. in q;~~. This is because the Prophet (PBUH) said:

"If fifty men of YOII take oaths against a man of them (that he is believed to be gllilty). he will be delivered /0 you (to execute
ref<lliation).~'

Hence, taking o.th. replaces, or is rtgardffi. as, an rvidence. A1J regards the legal consequence of a valid process of compurgation, the great ",holar Ibnul---Qayyim .... id:

"Mer. allegMion is not sufficient for any liabilitit$ to follow. if an allegation is based OM presumptions such as notoriety and manifest hostility, the legislator ~lIows this allegation to bt: supported Yi~ till proceJj of takingfifly oaths.for it is most unlikely that fifty mm would unjustly accuse an innount man of murder. The hadith that slales, "Ifproplearegranted (what they claim) OM basis of their claim, they would claim the lives and properties of persom. but the ooth musl be takm by the defendant .. . H' does not contradict Ihe oalhtaking proc= whatsoever, but it stresses that a mue claim is no/ eMugh for getting the right of retaliation .. :
&:holars have the op; M ion that ifa person d ies as a result of over crowdffi.ness on the lumu .ah (Friday) Prayeror during performing!awJf(circumambulating the Ka'bah), his diyah is to he paid from the Public Treasury. They base their opin ion On the following narntion: A man had be<:n killed on the Day of . Arafah (the ninth of Dhul-liijjah) during Hajj (Pilgrimage) as a result of over-crowdedness. His kinfolks went to Caliph 'Urnar IhnulKhattAb and he told Ihem they had to prove who had murden:d him . . Ali Ibn Abu Dlib was pn:sent aud he said to . Umar,

0 Commander of the Believers! A Muslim~ blood must In SOOn compensated. It is either to find OIIt who murdered him or 10 pay his diyahfrom th e trtasury."

Endnotes
I AI Bui<hlrl (6142) (1016581 and
M~o.!!m

(4318) [6/ I 46[ .

2 See: AI lkJtlil"1'Il, ArFiqlliJr"h" (I' 425[. 3 Mu5llm ( 4l19) 16I149J.

AI8u~

(4552) 181268) and

M~sI!m

(4445) [61229].

CHAPTER

Hudud (Prescribed Punishments)

liudud a~ the prescribed punishm"ots legally decr~d to be e~uted when cenain sins are committed in order \0 forbid recommining them. The origin of the legality of these preKTibW punishments is the Noble Qur'1n, the Su",,";' (Pr<:>ph~ic Tradition) and the con~rn;us of Musl im scholars.

Shayldlul-llIlm Ibn Taym lyah (may Allah have mercy on him) said:

"The prescribed punishnrentssrem from the mucy to all ,reatures and doing ..,ha/fvtr is good for them. Thus, he who executes
such punishments should h""" rhe inremion of doing good and showing mercy 10 those on whom lhey are imposed, just like the fl1lher who seeh /0 discipline his SOn or the doctor who ~ecks to cun a patiem."'
The wisdom behind ordaining the prescribed punishments is that they ."" means of deter ... nce, resl raint. and purifiClllion from .ins. They ar" ordained to fuJfjJJ the Rights of AJJah, Exalted"" He, in the fiut pJace, and then {or

~88

X PRESCRlJlED AND DISCRETIONARY PUNISHMENTS

the benefit of the Muslim community. Allah, Euhed be He, has made thrse punishments incumbent upon those who commit crimes stemming from weaknesses in human nature. Thus, such prescribed punishments are in the best interest of humankind in this world as well as in the Hereafter. To illust rate, the affairs of any state do not settle ucept through having restraints. deterrents, and punishments to be imposed on criminals. Through applying these punishments, the disobedient people and outlaws are deterred, the obedient and law-abiding people feel safe, justice is established on earth, and people fed oecure with regard to their souls. honors and properties. This can be seen in the societies that apply the punishments prescribed by Allah, where Sfeurity, stability, and welfare are ach ieved in a way that nooe can deny. In contrast to this are the societies that dispense with the punishments prescribed by Allah on the pretext that such punishments are savage and incompatibl e with modern civi lization. Thus, these communities are deprived of this divine justice achieved through these presc ribed punishments and the virtues of sfeurity and stability they maintain. Whatenr arms and high tfehoology such strayi ng communities have, it avails them nothing until they apply the punishments prescribed by Allah for the benefit of His $ervants. This is hecau$e human societies cannot be ruled only by power and technology, but they are to be ruled by the Law of Allah and His prescribed punishments; power and tfehnology can only !;trVe as means to execute these legal punishments, provided they are properly used. How could those deviating people describe the punishments prescribed by A!lah as being savage while in reality they repre!;tnt divine mercy to all humankind? How could they regard tho!;t div ine decrees as savage while not regarding the wrongdoing done by criminals as savage, though they, the criminals, horrify safe people, harm the innocent, and disturb social peace and stability? In fact, this is the real savagery; the one who showl mercy toward such criminals is moll' unjust and mure savage than the criminals themselves. So regrettably. whtn minds are spoiled and morality vanishes, people Sff what is right wrong and vice versa. In this regard, a poet says ,
"For Q sore eye. sunlight might look obscure And/ora Wre tongue. wattr migntta,te impure".
I! is impermi.. ible to execute a prescribed punishment on a culprit unle..

the following two conditions ore met: The first condition: is that the culprit must be a legally accountable person, i.e. sane and adult. for th e Prophet (PBU H ) said:

Choper I: 11..... (Pmcribed I\aniJhm......)

IhT (~IU) whOK"criolUarr 1101 T"rrl~d: Jt minor "ntif M rraches p"berty. Q I"n"tic until he rrg"ins his rr<lS<lll, and "sleeper ulltil ht awakes."
(Related by the Compilers of SU""" and others) Since none of the act. of wollhip is obligatory upon such po:rsons. they art: morr entilJed to be exempted from legal punishments. for they are aire;ody legally unaccountable persons. in addition 10 the fact Ihal legal ~ art inapplicable in case of suspicion. The second condition: is that a cu lprit mu.t be .wIrr of the prohibition 0( the IO(:t he has committed: otheTWi.." the prrKribed punishment is Inapplicable. This is beCIU"' Umar Ibnul-Khanolb, Uthmoln Ibn . AIDn, and . AI! Ibn AM Dlib (may Allah be pleased with them all) maintained:
"~rrQrr

"No prrstTibtd punishmtnl i$ 10 bf! exe,,"~d uctpl on him who i.! aWCIrY of il (i.t.. oWCIrr Ihal hi.! dud rnlQiis such a puniJhmtllt.'"
ThaI opinion of thein WII not rqectoed by any of the Companions, and Al-

M UWllffaq Ibn Qudimah said, "Thu is lire apinion

of IM nrlljority of scholars."

When these conditions Irr met by rhe culprit woo commils a crime that incull a prescribed punishment, then it is to be carried out by the judge (or his deputy). The Prophet (PBUH) uled to eucut. the prrlcrihed punishment$ and 10 did the Rightly-guickd Caliph$. In addition, it happened that the Prophet (PBUH ) appointed I perJOO to execute. pmcribnl puni.!hlrn'nt on his behalf, as he (PBU H) once Aid 10 Unays (in a certain incident):

"0 Utul)'S! Go ID the wife of this mon omI if JIlt (ollf_ (thal she h4s COll1m;ltol adulttTy). Ihtll stone htT to dullh."
MoreovtT, he (PBUH) ordtred lh1t M.1"iz ~ to I>e stoned 10 death and he (PBUH) did not witneu him being Iton~d '. The Prophet (PBUH) abo said co ncerning a thief:
"Tau him and cut hi$ hand ojJ..:'

I<4tbe prescribnl puni.!hlrn'nt need5 ijlihdd, and bec~u.., then! is.a risk of In.nlgra.sing during its extculion, it must be undertaken by the judge or hi.! dtpu.ty 10 as to gu.aranlH complete justice during execution. This should be the way 10 follow, whdher the prescribed punishment concerns violating om: of the Rights of Allah, as in Ihe case of z;n<! (adultery or (orniQltion), o-r a right ora buman ~ing, ~ in th e case offalse accusation of !ind .

""

X I'RfSCR1BED AND DISCRETIONARY PUNISHMEl'ITS

Sheikh Taqyyud-Din rbn Taymiyah (may Allah ha\'~ rn ercyon him) said:
'Th~ lirn its whose violation dot!s n01 0 nlr affect ceria j "people are called 'the Limits of Allah' and 'the Rights of Allah', such as banditry, theft, and zind. This auo appU", to running public properties, endowments, and bequests that are no/ mild. 10 specified people. Such limits are

among th. most important affairs of any slate, so it is the duly oJ rn/m 10 pursu e them and execule the punishments for violating them even

if without any claimants. and tt.<timoni .. are 10 b. aoup/ed .""" if

without any claimants as well. Mor1'(Mr, Iht prescribed punishments
are 10 ~ ...:t,uled without anydis/inc/ion befwe<n the honorableand

the mean, or the migh/rand rhe weak ..: '

It is imp"rmissible to tl~ut~ prescri!>(,d puni~hments in the mosque.

Rather. they are to be exe<:uted outside it. fo r Haklm Ibn Hi:clm (may Allah be pl ea~ with him) narrated:

"The Messenger of .... 1I~h (PBUH) forbade executing qi1<l.s. (legal retribution). reciting poetry. Or executing pnscribed punishments (budud) in the mosque.-The poetry meant in this badith is the immoral one. I n addition, one is prohibited to intercede to prevent executing a prescribed punishment after it has reached the judge. and it is al"" prohibited for those in authority to accept any intercession in this concern. This is becau.. the Prophet {PBUH} said:

"If anyone:' interee..,;on hinders the eucuti071 of one of the punishments prescribed by .... lIah. then he has opposed .... lIah in what He IIas ordained:'
Morrovcr, the Prophet (PBUH) said to the one who wanted to pardon a thief:

"Why did you

Mol

do rhM Nlore bringing him to

,ne'"

Shaykhul-lsI;\m lbn Taymiyah (may Allah have mercy on him) said:

"It is pron ib iled to suspend executing a prescribed pu nishmenl whether by an inlercession, a gift, or anything of Ih e kind..... nd it is already prohibited 10 inlercede in a crime I hal enlail.! a presa-i bed pun ishmen I, Wh""ver stop. executing it (i.e. Ih . prescribed punishment) for any of such reasons - though he is able to execute it - upon him is the curse of Allah, the angt/s. and ~/I nMnkind. altogether: '

591

Ibn Taymiyah

add~d,

"It is impermissible to get money from ~ thief. ~n adu/ten'lr,

~ drunk, ~ b~'ldit, or the lilce, to .Iop o;:eculjng a prescribed punishment, whether this money is paid to the treasury or to any other person. Such money is dremed iII-golten and evil, so if Ihe one in authority accepts it, then he is cOlI$iden'ld to be committing two evil deeds; the first is preventing the execution of a prescribed punishment, and the second is taking illgolten money. Thus, such a pe~on (who aCCfpts such a bribe) abandons what is obligatory and does what is prohibiled. It is unanimously agreed that the property taken (os a bribe) from a'l adll/ttrer. a thief. a drunk, a b~ndjl, and their likes, to .Iop executing a prescribed plmishmem, is evil and ill-goUen money, and it is among llle most evil things that spoil Muslims' affairs. It also causes the violability of th t one in autllority, his disrespect in llle lIearts of people, and the JO diminishment of hi. power:

This is be<;awe nothing can stop crimes and safeguard the society againsl their evils but the establishment of th~ pres.cribed punishments against P"fJ"'trators. However, replacing Ihe legal punishments with mere fines, imprisonmenl . or suchlike innovated positive punishments, leads only to corruption. injustice, and spread of evil. Ourfaq ihs (scholars of Islam ic Jurisprudence) slate that th e crimes for wh ich executing the prescri~d punishments is obligatory are five: Zind (adu ltery or fornication). theft, banditry. drinking intoxicants, and fa l", accusation of zind. As for crimes other than these five, th~y jusl ~ntail discretionary punishments. ~s will ~ explained later if Allah wills. They also maintain that th e ",verest lashing is that cxc~uted as a pun ishment for fornication. then that for false accusation of zin'}, whereas the lashing for drinking intoxicants is less s~r~. and the least is that executed as a discrelionary punishment. This is because Allah, Exalted ~ He, stresses that the punishment for zjnd in partkular must ~ s.~r.; Allah says,
"... and do not be taktn by pity for tlltm in tht rdigio {i.t. lawl "fAllall ...~ (Qur'an: An -Nur: 2)

Whatever sin less than fornkation in grievousness is to be le... with r~gard to the number of lashes. for no other sin entailing a punishment by lashing is to be gl':lver than fornication.

X PRE5CRIBEDAND DISCRETIONARY PUNISHMENTS

maintain thal if the offender dies during the execution of a prescribed punishment, the executu will hi. liable for nothing. for he has been carrying out the punishment prescribed by Allah, in the w:;oy ordained by Allah, Exalted be He, and enjoined by Hi. Me....,nger (PBUH), However, ifth~ executer exceed! the legal way of execution that the one being punished dies, the former hl.comes liable for diyah. In this case, the death of the one being punished h.., be..n the ",suIt of the transgression of the executer, so the CaSe becomes similar to murder rather than a p",scribed punishment. Thus, the executer becomes liable to pay the diyah; this opinion is maintained by A1-Muwaffa'l (may Allah have mercy on him) who said, 'We do not /mow any juriltic diS4greement on this ruling.~

Fl1rth~rmo"',foqihs

Endnotes
1 Sn In. rOOlnok: in "A,...R~/.MurM- [71300].
2 . Abdur_R"dq (13644)[7/403]. (I 3648)[7/405J, and (13644 )(7/403] and AI-Bayhaqi

(17065) [8141 5].

3 AI_BuKhlrf (681 S) [12/1 47J .nd Mu<lim (4396) [611 93]. 4 An-Nun (4692) ["'4:J8]. S Sn: "Majmu 'ul-Fakfw<f' (281297). 6 Ab'; D!wUd (4490) (41401). AI_Tinnfdhi (1405) [411 9J and loo Mij l h (259'l) [31248]. J 1 AM D!wfid (3591) [411 R and AI.Bayhaqi ( 17617) [81576]. 8 Ab'; Diwild (43'14) [41360], An_Nw ", (4893) [41438] and loo Mijah (259S) [ 31246]. 9 $n: "Majmu 'JiI_FaJJW(1~' (2Yl98). 10 S: ~ MajmJi ' ul- Falawa ' (2&1302). ~

CHAPTER

Prescribed Punishments for Zina

Faqlhs view thal lhe judge o r his d eputy must wilnru the execution of the puni$hmmt for %;",1 (adultery or fornication). In ~ddilion. l hc executio n must be witnessed by SOIm bt.li~rs as well. for Allah. Exalted be He, says:
M Arullet

a ,",lip

1)1'''. bdicvcn willl.... llteir

pUlIlJltmclI1.M

(Qur" n: An . Nur: 2)
Z,'~d i~ OM of th e mOSt grievous trim .., and th~ cnes o f ~j~d differ in the dcgr of immo rality. sinfu lncu.. and ugliness. T11 ilhulrale, hav ing sexual

intcrc:oune with a marriW woman, commilting ineftt, and having sa ual intm:ourse with noli neighbor', wife are the most grievous lypn of lin.:!.

z;nd is a major ' in as it r....mlls in abom inable consequencCl such u lineal d iurray and confusion that lead 10 disconnect ion and
mi"om m u n ication amo ng peopl e and to th. ir lac k o f mUllnl sllppon in

Mor~r.

righteoumcliS. It al so causes the w rruptiOll and destru ction of all aspects

,,.

x PRESC RIBED AND DISCRETIONARY PUNISHM ENTS

of human life, Due 10 such grievous consequences of zin4. Allah , Exalted be He, has prescribed a seve re punishment for adultery, namely stoning to death, or lashing and banishment in case of fornication. Such severe

punishments are decreed as means of deterrence and avoidance of the resulting moral and sIKial diseases that amiCI wciety. ThaI is why the
Lawgiver of Sharj'ah firmly prohibited comm itting zind; Allah, Exalted be He, says,
A nd do 1I01llPPlWUh unlawJid JUual
int~TCOurse.

lruJUJJ, it is

ew.ran immoralitYllnd is evil as a way." (Qur'An: AI-Iscl', 32)

Then [o"" Allah has pre5Cribe<i severe punish ments for comm itting the

sin of zin<l.
ddine z,mj as follows: It is the comm itting of illegal sexual intercourse in the vagina or the anus. lbn Rushd (AverroOs) ~aid:
"It is every .erual jntercourse th~t happen. jn any cjrr;um.t~nc", other th~n valid marriagt Or wh~t m~y be thought Qj marri~ge. or with one lave girl. This is unanimously agreed upon by Mu.lim schol~rs. but they have disagreed On whether wh~t may be thought ~s
F~ihs

marriage can prevent execuring rhe prescribed punishment or nor:'

If the perpetrator of illeg~1 sex ual intercourse. male or female. is married and legally major (i.e. if the case is adultery), he/she is to ~ stoned to death. This is the opinion maintained by the men of rel igious knowle.:!ge of the Prophet's Companions. the SUCCfSSOrs of the Companions. and those who followed them in the various Islamic states through different eras; none has disagreed on this opinion except the Kharijites', In addition to this, stoning to death as a legal punishment for adultery is stated in the $unnah (Tradition) of the Messeoger of Allah (PBUH), and clearly shown through the Prophetic sayings and actions that are recur",mly narraled. Sloning Ihe offender 10 death in case of adultery waS also mentione.:! in the Nobl e Qur'An. then it was abrogated in wording but its ruling is still valid. It had been stated in the following verse ~fore it was abrogated: ~And ",hm an old man (I.e .. m ..rried mu,,) or OIl old ",aman (I.e. a m ..rrled ",aman) commits adulttry, illtvitably stunt t <u:h ant at /h= os .. de/IT"n/ fp,,"iJhment] from Allah. And Allah is Exalted In Might ulld Wlst.Stoning to death in case of adultery is clearly SUlle.:! in the Quiln (through the aforementianed verse that was abrogated in wording but not in ruling), the ""'UrN'nt SUM Moh. and theconsensusofMuslim scholars. However, the Kharijites as well as some similar modern writers have dared to deny it, following their

ChaJ>' 2; P....."ibcd Punilhm<n" fo, ZilOi

own de&ires and disregarding of Muslim scholars.

th~

p,",scri""d legal rulings and the consensus

The man supposed to be mulwm' is the One who has already had sexual intercourse with his wife in her vagina. whether she is Muslim or non-Muslim (i.e. a Christian or a Jew), provided both the married couple are adult, sane, and free, not slaves. However, if any of these conditions is not fulfilled in one of the two spouses, then th~ stat~ of ib.!an i. not fulfilled. These conditions can be summari""d as follows: I-The stlual intercourse must"" done in the vagi na. 2-The sexual intercourse must be within a valid marriage. 3-Both of the two spouses must be adult, sane, and free persons. The married person is singled out for stoning to death because hr/she has already got married and become acquainted with abstinence from unlawful sexual intercourse and aware of the way to safeguard oneself against such prohibited sexual affairs. Such a p.!rson i~ ~uppo~w to have known how to abstain from committing adu ltery and consequently from suff~ring its legal punishment. ThUs, thel"<' is no nmse (or him/her at all, as ./he has been completely favored over single people (through marriage), and wh<>eVer is favor~d by Allah OVer others his guilt is mol"<' grievous, and thus ~uch a person deserV<'s to be punished more severd y. If a l~gaUy accountabl~ fr~ person commits fornkation while he/she is not in a .tate of i1w!n (i.~. not married or pr~viously married), he/she is 10 be lashed a bundred l"'hes, .... Allah, Exal t~d be He, u.J'S:

.,,,1UIl

"The {"nmarried] woman ar {""marrieJJj man fo""d guilty of I"tereo"" .. - lllsh ellch "ne of them 11 h"ndred Illshes . ." (Quran: An-Nur: 2)

Thus, the prescribed punishment for adultery, whkh is stoning to death, i. inapplicable in case of fornication, wh~n One is not m"/ua,,. Rather. the offender offornication is to be lashed irutead of ""ing stoned to death .... his/ her case involves a kind of tlcuse. Thus, the life of a fornicator is spared. yet &Jhe is to be punished for his/her sin by hurting all hislh er body through the severest kind of lashing. Allah, Exalted be He, says: ... ond da Iwt be take" Iry pity for them afAllah .."
j"

the religirJII fi.e./ .. w] (Qur'1n: An-Nur: 2)

so,

X PRESCRI BED "NO OISCRJ:oTlONAIlY PUNISH MENTS

Th is means that there should be no mercy toward forniCllOrs oonc~mi ng the execut ion of the prncribnl. punishment, namely lash ing. Moreover. AUah. F .nIled be He. addresses Ihe nKUIn- saying:
~.. if,.,.u

Mould bd~ ill AI/all "nd 'he Lm DtJ,... (Qur'An: An-Nur: 2)

ThaI is, there 5hould be no mercy in such cues if the executer is a true
believer. as fait h ent~i1.. firmness in the r<ligious a{fa,,, and exerting all effort

to establish thei r rullngs.

It is authentically stated in the Sunnah of the Me~ngcr of Allah (PBUH ) th at a fornicator i5 to be banished for a ~at in addit ion 10 lashing him/her. Th<lt is becaulIe it is related by At-Tirmidhland other compilers of Haditlt that:
~11re Prophet (PBUH) uulfd the punishm ent of lashing I"td oolliJlrillg (lite /omi",'or), ,,,,d Abll 80kT u~urtd Ihe punishment of/luhing(Jlld b'mUlling, Ilmi (/loo) .UmQUxuftd IM pun ishment

of Illshing and btlnish;ng.'>

MOf~r. lh~ Proph~

(PBU H) said:

When an unmarried male commits fo rnication with an unmarriM female (they should rt;vt) a hundrtd lashes and M"ishmenl
foraye~ r."

If the adulterer is ~ sl~ve. he i. to be la shed fifty lashes. as Allah. Exalted be Ht. 5aY' concern ing female .:la",,, "... But once they are meltned In marrlap, if they mould ",mmil adult"", then for tht m I, hal! rhe puniJhment for free (unmarried] """m ..... .." (Qu ran: An-Nis;\'; 25) There is no difference belw>n ma~ and female in this rrgard. The p~ribed punishmrnt mcntionnl in the Qurln i.la.d!ing. S!Qning 1 dt~th 0 was also mentiollw in the Qur'ln as the p~ribed punishment for muletT)', ~t 'l$ wording was abrogatnl bul il. ",",ing is still in force.

The punishment ofbanishing i. not 10 be uutt"d on slaves, for il hanns the inlere$! of Iheir ma.le .... In addition. Ihere iJ nothing mentioned in th e Still Slating th at ~ slave shuuld be banished in this C~. The Prophet (PBUH) 5aid concerning the c~se of a nlve girl who com mits fornication while not being in a stale of i/uJ'r. i.e. nOI sheltered in marri~ge: "If she commit. forniwtion. then IMh her; if she commits it again. IhtlllaJil htr again; mrd if Jilt rtptfmll fo r (a third lime). then lash her fo, (d Iltlrd lime) .. : '

"a"

Ch'l"<f 2:?rucribcd Puni,hmontl fOr ZinJ However, he (PBUH) did not mention banishment concerning the fornication of slaves. The prescrihed punishment is not to he exec uted unless the ca ... is void of suspicion of (adultery Or fornication), for the Messenger of Allah (PBUH) said,

zi""

'A~ert punishments in the ClUt of ,,,,picion

a, much IU you wn ....

Thw, there is nO prescrihed punishment applicable to the one who has sexual intercourse in the following cases:
I If One h ... sexual intercourse with a woman mistakenly helieving that

sh" is his wife 2 If One thinks ones marriage contract is valid while it i'l not
3- If the validity of one's marriage is controversial

4- If one is unaware of the prohibition of zin" because of b eing a

new convert to Islam or being brought up somewh","" away from Islamic states
5 If one is forced to commit zillll

Ibnul-Mundhir said:

'All Im pwple of rdigious knowledg" (scholars) from whom we haw derived /mowledge unanimously agrl'e that the exuution ofprt5cribed punishments .hould be averted i" the wst of suspidon."Infact, this isan"'p"ctoftheeasinessand leniencyofShorl oh (Islamic Law), as suspicion indicates that the sinner has commilled the sin unintentionally. Allah, Exalted "" He, says:

And thrl"f! iJ no blllm" uprm you for that in which you hllV2 erred but {only for] whllt ""ur hlarh intended. And lW' is Allah Forgiving andMerciful.H (Quian: AI-AhzAb: 5)
H

Among the condition. that obligate executing the prescrihed punishment on the offen der of z;",1 is that there must"" ""rtainty that s/he has commillcd it. Such certainty cannot be reached except through two ways:

The first way is that the offender confesses four

time~ that s}he has

committed zj .. ~. This i~ due to the fact that M~iz Ibn MMik (may Allah be pleased with him ) confessed to the Prophet (PBUH) four times that he had committed it after which the Prophet (PBUH) applied the legal punishment

".

x PRESCRIBED AND DISCRETIONARY PUNISHMENTS

to him; h~ (PBUH) kepi refraining (rom punishing him th""e times, until Ml'iz con fessed for the fourth time. If confessing less than four times had been enough to execute the punishme nt, the Prophet (PBUH) would have executed il on him al any of the three times of confession.
The confession is not deem ed valid unless the offe nder d eclares Ihat 1'11.'1

she has committed zhl<l in plain words. Ifhdsh" do<:s nOl mention the sin
of z;,,~ in the confeS5ion, then no punishment is applicable, as the offender might mean any prohibited act of lust that does no! entail a prescribed punishment, unlike zina. That is why the Prophet (PBUH) said to Ma'iz (may Allah be pleased with him) when the latter confessed to the Prophet (PBUH):

"M/.Iybe you have only kissed her, winkai at hf'T, or looked af her (Iustfully), '
When M~' iz insisted he did it, the Prophet (PBUH) kept inquiring until there were no other possibiliti"" Moreover, if the offender recants his/her ronfession before the execution o(the punishment, he/she must n011x punished, Thi.! is illwtrated in the way the Prophet (PBUH) continued asking M~'it (and others in other cases) in case th e laner takes his confession back, Also, when Ma 'iz tried to escape while being punished and then the prople caught him and stoned him to death, the Prophet (PBUH) said:

'Why did you not /eae him,for he might repent and Allah would auept hi, repentancer"
The second way to reach certainty concerning a case of zin" (adultery Or (ornication) is the presence of four wilnesses, Allah, Exalted be He, says:

-Why did thq {wIw .landere4] IWt prfHlua: for itfour witntssat.. ,~
(Qur'~n:

AnNiir: 13)

Allah also says:

Iha.e who aC(we chaste WOmell alld thell d{J 1101 product four w/tlle"es .. ,~ (Quran: An -Nllr: 4) Moreo"er, Allah, Exalted be He, says:

~"d

". .. bring Ilgllinst them four {WitlltiUS]from Ilmong you .. ,~

(Qur'an : An.Nis~': 15)

Ch.pt<r 2: l'r=ribcd Punilhmcnu for Zi ... The conditions for the val idity of testimony in the ca", of ZiMd, ]- The four witnesses must testify against the adulterer (or the fornicator) at the same place of assembly.
2 They must testify for the same single cast of ziMd, i.e. their te~timony must concern the same specific case of ZiMd committed by that p"rson.

3- They must describe the committed ~xual intercourse in a way that puts aside the possibility of committing any sin other than zimi. This is because some actions preceding the se~ual intercourse do not deserve the legal penalty fo r ,;nd. such as kissing and foreplay, so the witnessd te~timonies must be made clear to put aside any doubt.
4 The four witnesses must be just men, for neither the testimony of W()men nor that of wicked, dissolute people is accepted. 5 There must be no defe.:ts invalidating the testimony of any of them, such as blindness or th e like.

If one of these conditions is not fulfilled, then the prescribed punishment of slandering must be executed upon the witnesses, for in this ~ they are considem:! slanderers. Allah, Exalted be He. says:

':-t"d thou who tU''"'' choste ....,."ell/lMd thm do not producefaur witllaJes - Iwh them tlghty I~shes .. (Qur'an: An-N(w 4)
Scholars unanimously agree that zind can be proven by any of the afo rementioned two ways, namely confession and testimony. Yet, they disagree on whether there is a third way that ca n prove it, namely pregnancy, a. in the case when a woman conceive. while having neither a husband nor a master (if she is a slave girl). Some of the scholars maintain that this case d oes not entail a pre$Crihoed punishment on the woman, for .h~ may hoe pregnant due to a doubtful marriage or compulsion. Other scholars hoelieve that this case deserves necuting the prescrihoed punishment as long as the woman does not claim any m~!ter of suspicion concerning her pregnancy. Shaykhul_blim Ibn Taymiyah said:
"Thi$ ruling - that a pregnant woman who hw neither a husband nor a master;" to be legally punished - i5 the One kMown to haY< ball carried out m the times ofrhe Rightly-guided Caliphs, and it;" more cons;"teMt with the legal prinCiples. MorroY<r, it is the opinion maintained by the "holars of Medina; it ;s based OM the fact Illat

uncertain poS5ibiliti(S arl' disregarded,""

X PRESCRIBED AND DISCRET[ONARPUN!SHMENTS

Furth~rmo"",

Ibnul-Qayyim said:

., Umar Ibnul-Khattdh jud~d that the woman who becomes pregnant while haing neither a husband nor a master is to be stoned to death. This i. the opiMion adopted by the M~liki School, and it is the mort vulid of the two opinions Mrributt d to Imdm Ahm<ld, being based on irrtfUI~bJe evidtnce. namely th. womans pregnancy."

Just as the prescribed punishment i. to k eIe<:uted in case of zin~ (adultery Or fornication) when its conditions are fulfilled, it i. to be executed in cose of sodomy, namely having anal sex. which is an evil crim e and an ugly~rversion contradictory to natural disposition. Allah, Exalted k He, said regarding the People of Prophet Lut (Lot) who used to practice 5odomy:
K

Do you commit such immol'flllty 01 no one Iuu pren,ded

you with from among the worlds ri.. peoplu]? Indud, you appro<U:h m ..n with desire, instead of women. R..ther, you an
a
transgreuingJm!ple.~

(Qur';tn: AI-A 'raf: SO-8i)

In fact. sodomy is prohibited according to the Noble Qur'An, the Sum'wh. and the consell5llS of ilCholan. Allah, Exalted k He, descri\le$ the People of Prophet Lilt as committing an unprecedented immoral act, SO such people a"" deviants in this world. Ailah also deiICribe. them as k ing trespasse .... transgll'SSO .... and criminals. Thus, bt'c.use of the ugliness of their sin. Allah punished the People of Prophet Lut with a punishment that He had never afflicted any other ~ple with; He turned th eir town upside down and rained on them stones ofhud day. In addition to this, the Messenger of Allah (PBUH) cursed both the one who practices sodomy and his partner". Shaykhul-W4m loo Taymiyah (may Allah have mercy on him) said:
"The most valid opinion maintain . d by the Prophets Companion, is that both tl10u who practice sodomy are to be killed, wht ther they art mumans" or no t.~ Ht ~dded: "The Companions of the Prophet IIa~e not differed on killing sodomites. and some of them a re of the opinion tllm a .odomite is to be raised to the top of the highest building in town and thrown from Ih ere,fallowed by stones thrown at him:"

A1-Muwaffa'l"o.id: ~ the judgment afkilling rhe sodomite i. unanimously agreed upon omong the Prophets Companions, tllty all hat acted in accordance with that ruling. Yet. they have differed regarding tlu: way a sodomite is 10 be killed,~ "

Ch'pt<r 2: Pr<Kribe.:! Punishment> for ZinJ

Moreover, Ibn Rajab said: "The sound opinion is that a sodomite is to be killed, whether he is mullIan or notJor Allah, Exalted be He, says (about the sodomites of the People ofLut), '. and Nlined upon them stones o/Iayered hard clay.' (Quran: Hud: 82)"
In this connedion. lmim Ahmad said, "The prescribed punishment for a sodomitt is stoning to dMth, wh t ther he has previously married or "ol.~This i. the same opinion maintained by Imam M l lik and others. and it is also one of the two opinions attributed to Imam AshShHii. This is because th . Proph~ (PBUH) said:
anyane committing tht deed of the People of Lul (i_ t . sodomy), kill the one who doe. it, and the one to whom il i. done.
9 "

"If you find

(Rdated by Ahii Diiwild) According to another narration , the Prophet (PBUH) said:
... k.ilI the upper and Jhe lower (i.e. the two partnersr"

Among the acts of sodomy is having anal sexual intercourm. with one's wife. Allah, Exalted be He, says:
": then come to them {i. e_ wiYf!s/from whtreAllah has ordained for )'<l0<. 'ndeed, Allah loves those who are constantly rt~nla"t and /0 Yf!S those who purify IhemstlYf!s."

(Qurln: AI-Baqarah: 222) Ibn . Abb~s, Mujahid, and others, maintained that the lawful sexual intercour~ meant in the verm. is that made through one's wife" vagina; "from where AI/ah has o rdtlined for )'<lu.~ In addition, 'Ali Ibn Ab,; Ialhah repone.;! that Ibn 'Abbl! said:
"The verse thllt reads, '... Ihtn (ome 10 Ihemfrom where Allah has ordained for )'<l ... . .' (Qurln: AI-Baqarah: 222) means that you must haw $exu~1 intercourse only through the yagina and never exceed it. h~ying it elsewhere; whoever does anything of the kind is rtgarded as a transgreSjor."

Whor:ver has anal sexual intercourse with hi s wife must receive a deterrent punishment. If such a person continues committing it. then it is obtigatory for his wife to ask for separation from him. for he is such a low, villainous perso n with whom she mu,t by no means live under such circumstances.

x PRF}iCR I!'.ED " ND DlSCRETION"RY PUNISHMHITS

Endnotes
I S<e: HBiJ.iyOI AI_Mujlahid' (21529),

2 The Kharijite, (AI-Kha"'i rij, i,e, the Seceden): An 1,lamic radical secT who broke away from the ",ill" of' "11 loo Ai>U Iilib. lhe Mu,lim Caliph then, and murde1'ed him, Their followeB believe thot lbe M",lim ,",'1>0 """mi" a m.jor , in i, . di sbeliever. They . Iso cu ... and revile lhe prophet', Companions.nd deem the blood of Mu dim. violaok 31bn Majah (2553) [312251, AI8ukhOrl (6830) (121176) and Muslim (4394) [611 91]. 4 M"Man: One in a .tate of im.m, i_ ~ _ in a st.t. of fortification again' t illegal ""xual imereou ... 0Ild irnnlOl'll ity by "irtue of vaHd (current or pvio",,) marriage, SAl Tirmidhi (1442) [41441 .nd III.B.yh"'li (16977 ) [8/389]. 6 Muslim (4890) [611891. 7 AI_BukMIf (2 153) [414(6) and MLlOlim (4422) [61111]. 8 AI- Ti rmidhi ( 1428) [41331 and loo Mijah (2S45) [31219]. 9 See : " AI_ljmJ - (p, 162) 10 AI_Buk!.lri (6824) [1211651_ 11 Ai>U D;'w\id (44 19) [41373), 12 See: "Ma)m,; 'u/Fm""yj' (28/334) IJ s.. loo . "diyy in his A!Kflmer aod AI-Bayha.Ji (170 11) [8/402J .od " 'Tirmidhi [4158114 Aill&,an: One in a .ta", of i/win, i,e_in a .... '" offon ific8lion against illegal """"I inlerrourx and immonlily by virtue of valid (current or previou,) marriage. I S See: "Ulj'mll 'ul_Fala""T (21!f.l61 )_
16 See: AI.Mugnnl" ( 101161 )
H

11 Abii DtwiKl (4462) [41393). Al-Tirmidhi ( 1460 ) (4157) and 11>0 M'jah (2561) [31229). 18 loo Mijlh (2562) Pf229).

CHAPTER

Prescribed Punishment for Slander

J."ljih, defin e slander as accusing some person of adultery, fornication. Or sodomy. Jt is a prohibited act according to the Noble Qur'an, the Sunnah and

the consensus of Muslim scholars.

Allah, Exalt...:!
~

He, says:

':.t rid /ho$( who fluusuhasle womell and Ilrm J 0 "<>1 Produufo ..r
witlle....> - /Mlr them eighty I,,.he, and d" nol "" ep/from them

lutimony ever after. And those art Iht de/hmll}' disolH.dimt. (Qur'ln: An-Nur: 4)
H

Th e legal punishment for the slanderer in this world is lashing, the rejection of his testimony, and considering him a defiantly disobedient wicked p,,",on

as long as he does not prove what he has claimed. As for his punishment in the
Hereafter, it is staled in the ve,,,,, ill which Allah, Exaittd
~

Ht, says:

"Indeed, tlt"'t wit., [fab",'y] tlcc ...ed"lJtt, " ....ware.md belie ..ing wome .... recurud in this world ....d the Here..fter; ....d they will

X PRE5CRJBED AND DISCRlmONAllY PUN ISHMENTS

IIl1w 11 pHI ,.tldsJtnwtt. On .. Da)' when tlleir '''npa, thrir lI..nd~ .. nd INir ft wiU N ..r ",itnlW ..,,,,;1Ul IlIe", /U to ""'''', they wed '0 do. Th .., Day, A/f.. II will POI1 t~'" in fulltllnr Inle (i.e. d_"""1 reamrpenK, .. nd 'key ",11( blow ,full i, 11 A/lair Who 11 'he Manifat Truth [I.e. Pnfl ln Jrutl"J.~ (Q ur"n: An-Nur: 23 -25) Moreovt r, the Prophet (PBUH) mentioned slander as one of th e enormous, destructive major sins when he said:

'Avold rhe se~tn most desr,u,tiw major sins."

H. (PBUH) pointed out that among t,""*

stYe" destruc:tm mator sins was:

... J!lInderi/lg d!1IS1e, u" .. "'Un Mimng women (i.e. wo"",,, "",,0 IIn lO duutt thll//hey lire """' "n.. WOlre of i mnwrlllity)."

FUrthnmou, Muslim 5h~ars unan imously agr on the prohibition of slander, reprding it as one of th. major J.in$. Allah, Eul~ be: He, has ordained a delerrmt legal punishment for the sland.rer. If . Itgally ux:ountable ~l1On falsely accuses a chaste ~l1On of committ ing adultery, fornication, or sodomy, the slanderer is to be: lashed eighty luhes, for Allah, Exalted be: He, says:
And tllou ...110 II"UN , h,"'t WOme" II/ld ,hen do nol produce

follr wilJlusu - IMh tkrm t1th1 yltuhu .. (Qur'An: An-NfU: 4)

WI'$C indicates that if tho$<- who accuse Cha$lt modest womm do nOl produce four wtlnessn to testify 10 whal Ihey have claimed. thm they ( the 1ICCUStI'$) are 10 be: lashed eighty lashes.. It does not mm any difference whelher the accused person is a man or a woman, but women art mcntiolKd in pMticularbea.use the verse refers 10 a 'pecir1c incident. and beause slandering wo"'"' is an uglier and mo~ recu~nt <ked than slandering men. This pun isllment is ordained to be: uecuted on the .I.nde~r in order to p~strve Ih~ honors of Mu~lim 5 from profanation, to safeguard innocent chule pwple against such offenses and obJCenities, and to protect the Mudim com munily from the .p~ad of . in and corruptio n. Th. mlllua" penon. defaming whom enlail$ the legal punishment for slander, is Ihe one who is f!"tt, Muslim, sane, chaste, and able to hoove sexual lnttrcourse. lbn Rulhd (Averrois) said:
~

"SdtoUuJ /w"f wumimously ag=d tltal tht sJandeml persotl must haw tht folfuwingfiw dumu:feriJtics (to I'f!gard tht 'Il~ AI slander}: kgal majority,ftudom, chas/il)l/sitlm, and tiu abilit)' /0 haw sexual inttrwuru.1f any u/ thtH "mditi"n> is not fulfilltd . tht "ppli,,,!i,,,,
of the punishment for JlandtT I>amel in>'Q/id;'

'"

Clrrying out tlw: pun ish ment for slander is a right belonging only to the $landem:! person; it is dropPftl if he forgiva the slanderu. and il cannot be nut(d npt upon his rtquest. Thus. if the slandend ptr$On pardons tIu: slandeur.lht:laner isto be enmptM from tMprncribW punishment. H~r, the slanderer in this c.aK is IQ be disc>rtionarily p1.Inished 1 dder him from 0 going on slanderingOlh en, which is. prohibited act that in~urs the curse and the p;ainful punishment of Allah as ilated in th e Qurln. Shaykhul-Isllm Ibn l'Iymiyah (may Allah have mercy on him) said, ul'UIl1imousiy agrte 'lUll tht pmcriMd punWlmMI for slander is "at 10 k vclCuwi U(tpt upon tM

"Sc""'",J

rtqW$I of the Jklntkr-td pcson.":

If someone slanders an .bKnt ~rson, he iI not to be punisbtd until the ILantkred ~non returns and ub to uute the pRKribcd punWunent or if it is proven that he has asked for it in his absence.

Words of Slander are of Two Types

I Plain words: such words imply nothing but slanckr, I(l the slanderer's allegation of intending IOmdhing oth .... than slander is not accq>lable in thi$ case. Sland.... in direct, plain words includes such ClCpressiOOS as "you adulteJ'C1'," "you fornicator; or "you sodom ite." 2- Allusive words: such words imply s1anckr along with ot~r ~anings., so I~ slandu....s claim of intending something other than slander i.! acceptable in this cas<!. Slander in such allusive, Indirect, metonymic words includes such upresslons as "you 1 lIu," or "you dissolute," or t~ liu. In the lalte r eau, if the slanderer clai"" that he mum IOmethingother than .dultery bycalling t"" othe r ~rson a "dissolute" Of I "lecher", his claim is to be acc:cptrd and be dOC$ not become liable to punishment T h is is because his words a~ allusive and ~ indicate OIhet' meanings., 110 tbe~ 5hould ~ no pun Wlment according to the legal rule that Rates, "legal punishments IlJ'e IveTted in the cas<! of

5uspidon."

X PRSCRIIloEDAND DISCRETIONARY PUNISHMENTS

If the slanderer accuses a group of prople of adultery while they are far a~ suspicion, or ifhe slanders Ihe people of a whole town, then no prescribe<! punishment is to be execuled upon him, yet he is to be discretionarily punished. Th is is because it is cerlain Ihal such a person is telling a lie, so no shame befalls the acc ustd ones. Still, he is 10 receive a discretionary puni shmenl 10 give up such offense. and obscenities thal involve a si n enlailing punishment. even if none ofthe accused persons a&ks for it
If anyone slanders a prophet. h", is garded as a disbdi""",r, for it is an act of apostasy. Shaykhul-lsUm Ibn Taymiyah (may Allah have mercy on him) said, "Slandering the wives of the Prophet (PBUH) is th, "''''' ~s slandering the Propher (PBUH) himulf, the ,Ianderer is considered an apostate")

Concerning whether the sland",r', pentanee i, accepled if he repents before the .lande d person is acquainted with Ihe slander,Shaykul-hllm fbn Taymiyah said, "The sound opinion i, thM itdi!!,rs from one ~rson tounO/herdu. to the differences between people. Most scholars maintain that if the slandered person knows about th. slander, then the rtpentanu of th~ ;Ianduu i; Hot Mupfed. But if Ih, slandered persiln does not know. then the slanderers repentance is accepted, yet he should pray for the slandertd person and ask Allahs forgiwness for slandering him ... Thus, it has be<:ome obvious how a dangerous organ one's tongue is and bow grievous what one ull .." could be. That is why Ihe Propbel (PBUH) rbetorically ...y", 'Is there anything that causes people to be thrown into the Hellfire upon their faces other than the outcome of their tongues (j.e. the wrbal sins)?"' Morwver, Allab, E:<ahed be He, "')'$:
~He {i.e. mgnj dor. lIat utter dny W()rd except that with him is an ab..,.....". preptmd {to ruardl.~ (Qur'an: Qat: 18)

So, One musl keep one's longu. away from saying what is prohibitt<!, weigh one', words, and say only what is right and jusl, for Allah. Eullt<! be He, says: "0 you who haw beUewd, fur Allah and ,pet>k W()rtU of appropriate justice." (Qur'an: Al-Abz!b: 70)

Dlapt<r 3: Pr=ribe.i Pun, .. "," fur Slander

Endnotes
1 See: "Biddyal A/.MujlahiJ' (21539). 2 See : "Majl"" u/Fatci14Yj"' (321119). 3 See: "Uajmii ,,/Fatci,...r ' (321119). 4 See : "Maj"';' 'u/FatliK-{i' (341541), 5 AI Tirrn idhi (2621) [5111 ].

CHAPTER

Prescribed Punishment for Intoxicants

Every ~ Ihal intoxicate! is prohibited accord ing 10 the Qur "'n, the Sun ....h and the consmsus of MuiJim scholars. Allah , the Exalted, 1oaYS:

"0 YOII who hll~t lIt/lnld, indud, intox/cIlI1L1, gllmbling, (~c

riflclrlg on) done "11,,,, (to other than Allah/, and divining arrow. art buf deft/,ment from the w(JrA: of SII'''" " ""lIid it Ihal )'(Ill' may bt ."C(,,"/ul. $.:ItQ" only wants 10 COIl/Sf: b...t...., .." ,..,,, ani",o.ity ,,,,d ""'red through j"t<>X1, ,,,,U and , ..",IoU ng /lmJ to "VU, )'Oil fmm the ....",emb."nce of AI/rUt "rut from f'"l~. So will)'O.. not duWr" (Qur'An; AI M,'idah: 90-9 1)
MOT~,

the Propk\ (PBUH) .. id:

"E"".." ~r"~ thallnlruklllts jJ prohilrittd (I" drink)." '

(RdalN by Al-Bukhlrl, Muslim. ilnd other com plltrl of Hrul1thJ )

."

X PRSC RJIIF.D AND DISCRETIONARY PUN1SHMENTS

In another iJIuIltll, M (PBUH) said:

"E""" i"d/rilln' is /UI in/(lXiaml. Ilnd not? infoxU:<IIrl is prohibird.,.l

Thus, every beverage that intoxicat~ when raktl> in large quantities is .lw prohibilnl 10 be tlktn in small quantitifi. a$ it is still called wine afttr all, whether il is made or gra~ juice or 11l}1hin, d sr.
'Urnar
[bnul Kha.l1~b

(may Allah be plt'lsN with him) said:

":.4.11 in/oxictult js that which deranges Ilrt nli lid."'

Morrover, Slwik h Taqlyyud-Dll1lbn Taymlyall (may Anah h~ mercy on

h im ) said:

"H,,5l!ijh is impu .... IlcrortiillK to Ihr prtpondmmt opinion; it is

prollibittd will/her it jllloxi,m~ or no/. HllsnisJ. Ihal in/ox;caln Is prohihi/rd Ilmmling 10 tM ..nail/m"". olpttmtlll of MllJIim scltoMTJ.
lI SIwm! in so"'" tupls it gtUYn'

,Ita" /hlll '"wim. 11lNpnllltlpptllf

in the sixth ctlrfUry A.H. (after Hijralr )""

Hashish and all other drogs a .... among the moot destructive means that ruin the Muslim youth nowadays. They ilK considcm:l tht ITI03t dangt'rou5 wnpon rxported 10 u. by (Mlr I'11t1T1i a. "!"My.re p",!g~ted in our IamiJ by the Jews and their agents so as to destroy Mu.Jims, corrupt their youth , hinder them from ~ndltlng their societies. from striving for their religion, and from defcnding their ~t;'ms awoinSI Irarugre$$OJ1.. In suc:h a way, many of the Muslim youth ha", borne nucotiud, living either as de~ndents on thei r societies Or in priw ns. 1best a.." regrettably, the consequences of the s~ld of narcotics and intoxicants in the '~lamic co untries. There is neither might nor power except in Allah, the Most High, the Most Great. lnloxianlS are by all means prohibited, Ind drinking is impermissible: wluttver the case may be; it is im~rrni$Siblc 10 drink for pleasure, as medication, for quenching thirst, or fur any other re.uon.
As for the prohibition of drin king intoxicants as a means of mediation. the Prophet {PBUHJ says:
"11 is nolll rtrntdy; it iJ 11 .nll/lldy." '

(Rclattd by Imlam Muslim) In . ddition, Ibn Mu"M (may Allah ~ pleas.rd with him) fIid:

i\//aJr hlls ntvtr nradr your remedy in 11 proh ibited thing."'

Ch.pta i: Pr=ribcd Puniohmcnt for Intoxicam.!

."

As rrgards th~ prohibition of drin king for queochiog one's thil'St, it is due to the fact that intoxicants do not actually quench thirst, but they rather increase it. If a Muslim will ingly drinks alcoholic liquor or anythiog miud with it, such as cologne or suchlike !",rfumes that conta in alcohol, while being aware that it intoxkates, th e prescribed punishment for drinking is to be imposed on him, for the Prophet (PBUH) says:

"If IInyone drinks 11" into:>;;i" ...t, then lash him."'

(Relatw by Abil
D~wUd

and other compilers of li.lldith)

The prescribed punishment for drinking is eighty [ashes, 'Umar [bnulKhan1b (may AUah be pleased with him) consulted the !",ople as regards the prescribed punishmen t for drinking intoxicanl$. Thereupon, . AbduI-Rahm1n rbn . Awf said:
"M~

it the Sllme ~s tile lightest presc,iOOj pllnishme"~ eighty lashn"

Thus, 'Umar executed it as eighty lashes. Then, he wrote to KM]id lbnu] Walid and Abil 'Ubaydah in Ash -SMm (the Levant) informing them of that new Iuling. {Related by Ad-Doiraqutni and other~}' That incident waS witnessed by both the Muhdjirun and the An,i<lr and none of them disapproved of the new ruling.
lmint Ibnul-Qayyim (may Allah have mercy on him ) said:
"In fact, 'Umar made the prescribed punishment for drinking the Sllme

as rhal of ,lander (i.e. tighty lashes), Imd the Companions ratified this judgment ..
Moreover, Shaykhul-IsLlm Ibn Taymiyah (may Allah have mercy on him) said:

"According to the Sun"ah and the consenslls of Muslim "ho/ars, the prt5Cl"ibed punishme nl for drinking isforty lashes. Any increase can be derrud by the jud~ oMly when M<'<U<ar)\ Qj in rhe case. wheM peopl~ i>uome addicud to Ilkohol aMd they Il'" M"I dotund except Ihrough more lashing:
He also said:

"Tht to eighty lames fo rty sound opinion prohibited. Rather, jt depends

;:,'~h:;"~'~i:;:~~tf:i:~~i:~
On

, ,
judge, just

X PRESCRIBE[) AND DISCRETIONARY PUNISHMHITS

aJ it

is ~rmj..ible for Mm 10 tJ'rcise ijnMd (Igal re""oMing and discretion) as "'gard, the WIly of lashing:"

The p",scrihe.d punishment becomes incumbent upon the confession of the drinker or after the testimony of two just witnesses, Yet, scholars disag= concerning the one who smdls of alcohol and wheth ... that proves his guilt or no\. Som e maiMtai.Mthat the proscribe.d punishment is inapplicable in this case, and that only a discretionary punishment is to be. carried out. Others say that the p",scribed punishment is applicable to the One who smdls of alcohol unless he claims IIOmething that makes the case suspicious. The latter is the opinion '""ported to have ~n maintained by ImAm Ahmad. Likewise, it is the opinion of Imam M~lik, and it is also the opinion chosen by Sheikh TaqyyudOin Ibn Taymiyah (may Allah han mercy on him), ShaykhullslAm Ibn Taymiyah said:

"He who has circumstantial evidences proving he is guilty of drinking. like the smell of alcohol, is more deserving to be punished than the one who..: guilt is proven by witne..es or confo..ion, aJ both may be true Or fa/je (un like the smell of alwhol). The Prophet. Comp,mions unanimously IIgree on this opinion:"
Mo,""onr, IbnulQayyim (may Allah have mercy on him) said:

"Both' Umar and Ibn.Mas "d judged that the pmcribfd punishment is to bf carried out on the ~rson who smells of alcohol, wheth er he i, a man or not. None disagreed on that judgment of' Umarand Ibn M",,'lld then."
The danger of into:w;icants is really grave. It is the cunning mean. used by Satan to mislead Muslims. Allah, Exalted he. He, says:
"Salan only ....,nl. 10 CllUU between yo .. animo.ityand Mlred through inloxicanlJ and gambling and 10 atT' you from .ht nmemlmmce ofAI/Ilh and from prayr. Sa will yon ""' duislr (Qur'An: Al~1>U'idah: 91)

In addition, win~ repres~nt. the mother of all evils. The Prophet (PBUH) cursed ten persons related to wine, among them are those included in the following h.adith:

"Allah has cu ..d wine, the one who drinh it, the one who serves it, the one who sells it, the one who buys il, the olle who presses it, the one for whom it is pressed. the one who ",nyeys it, and the one to whom il is convtytd:"

Ch.tpt.r~:

Pn:ocribcd Punishm.m for [n",,,ic;,,,,,

613

In the narration rdated by Ibn Mljah, there is another one added:

"... and the one wllO euts up its price."

Thus, all Muslims should resist wine firmly and ~ourageoll.'lIy, through blocking it. SOUrrfl and imposing a dder~nt punishment on those who drink or promote it. This is becau"" wine leads one to al l evils and sin. and alienates one from all kinds of goodness . May Allah spa~ all Muslims its evils anddangen;. The Prophe t {PBUH} pointed out in ah.:ufith that toward th.end of time, some people would d""m wine permissible; they would ~fer to it Wilh other names and would shamdossly drink it " . n.orefo,"", Mll.'llims must be on their guard against such wicked people.

Endnotes
I AIBukMrI (242) (lI460] a nd Muslim (5179) (71170). 2 Muslim (5J89) 171137 1. 3 AJ Bukhlrl (5581) 110/ 45 ] and Mu,lim (1475) 19I.l6O]. 4 Hijrah: The Prophef. Immigration to Medin>. S See Ibn T' l""iyah'. Maim~' ulFa,d..-J (34/213). 6 Mu,lim (l9S4) . 7 AJ.BilllrlI74]. 8 AbIl. Dtw(Jd (<<83) (414Cl4] and AnNas;!'] (56n) (4n 16]. 9 Muslim (1706) (J5. 36) Abdu, R. ..uq (! 3542) 171378 1. Ml lik (710). Ad-Datiqutnl (3290) [3/l !2].nd AbIl. DawUd (<<89) [4/406].

10 See Zddul-M"'M [5144] . 11 See Ibn Taymiyah', Maimu 'ul_fuldwd (34/2'19).

12 Ibn AbO. Shaybah (28619) [51519). 'Abdu , Rawq (17029) 19/2281 and Mi lik (709). 13 AbIl. D ~wUd (J.674) [4/551. Ibn Mij.h (BW) 14/64 ] .nd AI Tirmidhi (J 298) [3/589). 14 AbIl. DSwUd (3688) [4/61 ] .nd Ihn Mijah (4020) [4/368)

CHAPTER

Discretionary Punishments

From the juri~lic point of view, a diS<:l"C"tionary punishment is a disdp linary

one intended to wrongdoing and transgreosion. It is also a means {If honor and respect, for when one is deterred through it and refrains from
p~ent

wrongdoing, one becomes more honorabLe and respectable.

As for the ruling on the discrrtionary p unishment in Islam, it is obligatory to b.. carried out fur every sin for which there is neithe r a p=ribtd
punishment nor expiation. whdher it is related to doing.om.thing prohibited or abandoning something obligatory. A discretionary punishment is to b.. cxc<:uled by the judge in cast h. finds it ben eficial to apply il, ye1 1h. judge is to gi"" it up if he sees otherwi ..,. Exocuting discrdionary punishments not nud to b.! rtquest..d, so an aggressor is to ~ diSCn1ionarily punished even without th~ r~quest of the aggr~d p<'n;()n; it depends upon the judg~>s discN'tion, as crimes differ as regards tht dtgru of enormity and fN'qutncy_

d"".

wund opinion is that th~r" is no fixed discretionary punishment, but jfthr: offenu is rdated to a sin that already has a prescribed punishment, 100, rin4 (adultery or fornication) or theft, a discretionary punishment should n~er reach the amount of the p,.,scrib<.d one.
A discretionary punishment may reach killing if necessary, such as killing spy. killing one who seeds dissention among Muslims and ~el'1i their unity, and killing one who invites people t o abjde by wmething other than the Book of Allah, the Quran, and the S """h (Tradition) of His Me~ng.r (PBUH). .. Thus, killing as a discretionary punishment is applicable in suchlike ~as% for which th ..., is no deU,rl"<'nl punishment other than killing.
Shaykhnl-Isllm Ibn Taymiyah (may Allah have mercy on him) said:

'"

x rRESCRlBED AND DISCRETIONARY PUNlSHMElITS

Th~

"This is tht most just opinion,

~"d

it is stated in tlu Sunnah and

the tradition of the Rightlyguided CAliphs. To mustratt, the Prophet

(PBUH) ordtrtd that the husband whose wife made ht r sl""" girl

lowful for him (to haVl' sexual inttrcourse with) was to be scourged a hund~d lashts. Liktwise, Abu Bakr AsSiddiq and 'Umar Ibnu! Khatt~b crrde~d that the man and Ih t woman who we~ found in onc bed (though not a m~rried couple) ww : to ~ bea/m a hundred lash tJ each. Also, 'Umar ordered that Sablgh was to be .courged So stVt rtly (as a discmionary punishment)..:'
ShaykhullsIam
add~d,

"If the inlention (behind the discretionary punishm ent) is to ~pel corruption that would nol be ~pelkd <:tapt Ihrough killing. then killing is to be atcuted. Thus, when the offender repeats the Ulffle wrongdoingas he has nol been dt temd by the prescribed punis"mm t, then he ... regarded as an aa",lling ptrson whose aggrtion Inno/ be stopped u uptthrollgh killing, so he is to be killed:'
There is no minimal limit for a discretionary punishment, as crimes differ in the degru of aggre .. ion and acrording to the different drcumstanres and ages, Thus. some punishment, are referred to the discretion of the judge who should decide according to the n ece .. ity and the public interest, provided his discretionary punishment accords with what Allah hu ordained and avoids what Allah has prohibited . lust as discretionary punishments may be executed through l,uhing, they may also be ("-uted through detention, slapping, admonition. banishm ent, and Ihe like. ShlYkhuHsam Ibn Taymiyah (may Allah have mercy on him) said:

"A dUcretio=ry 1"...islomtnl IMf bt admiltiutml through mriling

the hOllOr
(<1$

'"

"j the transgrtssor by calling him_ for tomp/e, 'you

oppressor' or 'you 1,,,'l$grtssor: and d;,missing him lrom Ih e as.stmbly

a .ig" of diJdain) .. ;
Tht~

is a htuiith in which tilt Me_ngr. of Allah ( PBUH) says;

"Nobody $hould bt Ia1htd moll" Ihon ttll lasha UII/W hdsltt ;. gllill)' uf Il crime that ell/ails" i"'nW"tlmt prescri btd by Ill/all."

(Rdalnl by Al -Bukhirl and Muslim,' Those scholars who permil making a disc",' ionary puni$hmtnt mo", than ttn lash" argue that the phrase ""nltss ht/she i~ guillY of <I (rime that e",aib a punishment prtscribtd by AI/(I/t" he..., means unl ess ht t~ceeds one of th e limits set by Allah", which is acceptable in Arabic. Thus, Ihey argue Ihal the sins tltat incnr morr than ten lashes are those related to prohibited malters, and the prohibited mal1CTS ..., Iht limils 5d by Alla h. A(cordingly. a discrdionary punish~nl for a (eruin " rime i' 10 "" <kct<kd according 10 IIM: bmefil of th~ pUnishlm'nl and 1~ ,nlVily oftht t rime.

It is impmnissibk 10 cut off (lIlt of tht parts (If tht offmder', body, to wound him, or 10 shave his ""ard al a diK ll'lionary puni shment, for Ihis cau&e'S mutilation and disfigull'lTlent. Jt is also impermissible to apply a discretionary punishment through something unlawful, such as mak.lng the offender drink wine as a punishm~nL
Whoever i. notorious for hurting people or damaging their properties i5 10 be jailed until his death or reptntan. In this regard, Imi m IbftulQanim (may Allah h","~ mercy on him) said:

pawn i$ 10 ~ obligalorily tkloiMM. 11Ii$ is IM opinion mainlainfd by IIIl1ny Muslim scholars. and it should not hi disputable, as il is in the best inllrtsls of Mu.lim, and a w~y of $pMing them
"51;(/, a

wrongdoing:

He added:

"Working as a ruin- VI/ail. firmness, so " fuitr should nOl h>ck firrnnw as long as ht is IKling in IlCcordana ...ith IM Shu,i"ah
(fw.mic Law). Achirving JUJlire in whattwr ""<Iy U rtgardtd 0. ont of lilt kilO" prncribffl by Mlah. Tht poJicy 1/1111 a(hit~ jUSlict am nt~r be said 10 contrrll/iCllht Shad ah. NOI oMly does il agl' wilh t"t Shad a". but it is auo (omidffld OHt of i/$ inltgral ""rls. Wuall

x PKESCRlBD AN D DlSCREnONARY PUNISHMENTS

it a policyjurt to keep up with Ihe modern legal terminology, but it is one of the enentiallslamic laWl' mther Ihan a policy. To iHuSlrale, t"" Prophet (PBUH) once detained a man who wru acruud of a crime,' and punished another man who wru accused when signs of his guilt appeared. ThUl, whoever believes IIUlI such persons should N released orfreed upon taking an oath, despite their Ning nOlurious for corrup tion and evil di,agree' with the Islamic legal policy. Ralha, accused persons should be punished (if sign5 of their guilt appear) and Ihose in aUlhorily should nOI accepl the claims of suspects Nlied by custom and convention.- I
Sheikh TaqiyyudOln (may Allah have mercy on him ) said concerning .orce",r. and conju",,,:

"A discretionary punishment should be applied 10 those who hold snaw (i.e. snake charmers), those who pl(ly tricks with fire, and the like."
A discretionary punishmenl should als.o ~ applied to whoever disparnges the Islam of aMuslim or makes fun ofhis rd igiousncss. Likewise, a discretionary punishment is to be applied to wh~vcr calls a Dhimm' "a hajji" and wh~r calls the one who visils graves (and idolizes the dead) "a hajji", and the like. MorwV(r, if the complainant is proV(n to ~ a liar and th e IC(USed person to innocent of the charge alleged by the former, a discretionary punishment is 10 ~ imposed on the complainant. He should also ~ liable for a compensation for Ihe injustice and wrongdoing he ha. done to the accused person without right.
~

Endnotes
I S lbn Toymiy;oh' Majmu u!.FatdwJ (281344). 2 Ibid_ 3 Al- Bukhirl (6848) 1121217 ] .nd Muslim (44)5) 161219]. 4 Abu DI...-.ld (J.6J.O) )41321 . At TIrmidhl (1421) 14128J ~ S the footnm. in M RGwd 1!.IMurbi 1 71351 ]. 6 the f_"m. in A,. Rawd It/Mu,!'; (71352 1.

."d An-N.,i1 (4891) 141071.

s...-

CHAPTER

Prescribed Punishment for Stealing

Allah, E""hM k H~. uP'

"""tU

[As for} the th;tf, the m .. /e ,,,,d the fem<l/e, amputate their in ruompenst for wh"t they ear .."d {i. t ., cammittedJ

<lsn dett"tnl {punishment/from Allah. And Allah i$ Exalted in Mlgh' and Wi.... (Qur'an: AlMA'idah: 38)
Moreover, the Prophet (PBUH) saY"

"The hand should be cut offfor steali11g something that is worth a quarter of a dinar or more."' In addition. Muslim scholars have unanimously agreed on the legal neces.sity of cutting off the hand of the thi efin general.

X PRESCRJ REDAND DlSCRE110NARY PUN ISHMENTS

The thief is a COlT\lpl membeT of society; if left. his corruption would in the body 0( the nJtion, Thus, ht should be ff$lnined by applying the suitable penalty 10 inhibit him. Therefore. Allah. Exalted be He. has legi$laled eutting off the hand mt he thief; ~u(h an unjust hand thilt reachn out for what is not rightful for il. such a hand that destroys rather than constructs. and taw rather than givn.
~prad

Stealing is Ihe acl laking a propnty stealthily from its owner or his deputy whik tm thief is $Ubjected to tm laws of Islam and the stolen property hu reached the "qdb. ' provided that he has taken the lilolen property from a repository for safelw-ping objecu ot the kind. ]t is abo I condilion, to rqfard the case as theft, that the owner of the stolen property i. protected by Islam, and that there i. no doubt that the offender IllS no right 10 tlke il. Thus, there are cert~in qualities that must be fulfilled in the th ief, th e stolen pe,",n, the stolen property and the manner of stealing, and alltl>ese qualities Ire included i" the ,uoTerMntloned definition. ~never Iny of these conditions is n01 fulrilled, the band should not be cut off. These conditions are: must be committed 5IealthUy. Qthnwiso" me ptl'Kribed punishmenl of CUlling the band off is not to be executed, as when tne property is plundered publicly or 1$ usurped, fo r in such case the ownt"r of the property ean seek help and punish the oppressor and the usurper. With regard to this, lm&m Ibnul Qayylm says:
"The ~nally of culrlng off tile hand is to N o:tcuud on the thief rathN" than lloe plundn-t, and the usu~" tU it is impossible '" gwmled ag<lill5l IIIm. for he (tlte thief) digs DUI houJeS, rips open ' T"tposiloritJ of properlifs and brNks tht KaIJ. So. if furring off the ha"d ..."., "of ItgiJlaud, JI'f'k would sual one another. dDma~ would aggn:no.:lte, and hardship would gro'" Hwrer:'
~ ad of 5Iealing

or

MOrtOVfi, th e au thor of tht book ~ntitl~ AI-lfl<ih [Ckmon.trlltionj :;.ays:

Scholars una/limal"ly IIgru Ihllt for the embtuler, I/f' plundertr and the usu'ptr, dt $pilt the gravity of Ihtir ,rime ~nd their $in. no amputation TJj Iht hands i~ to W 0:1,1/(,1 on ~ny of lhem . 11 is permissible 10 pT"tvtnl Ihri, aggrwum by mtans of disciplining, punishing, kmg imp,islmmenl. and delem'nl pt"""y by fOnjiKaling lheir proptrties.."'

Furthermore. to execute the prnaibed pun imrMnt of ampulation. what is !!olen mUSI be an inviolabk propeny. for what is nOl deemed a propt"rty is not illviolable. such as the inmuments of amusement, in!odCW1S, the swine

Ch. pttr 6: PlnCriixd

I\m~hmcnt

fOr S,.. ling

and th~ dead animals. Alw. cona rning what is considerr<! a non.inviolable property due to its owner's b..ing a disb..lieving warrior against Muslims, no amputatiou is to b.. executed. This is because the blood and property of such a person is lawful. In addition. to exec ute the punishment of amputation in stealing, the stolen property must not b", le.. than the ni16b, wh ich i~ three Islamic di rhams that equal a quarter of an Islamic dinar. This amounl can b.. estimated by comparing its value 10 what equals it in other currendes or by estimating the value of the stolen properties according to ea,h age. In regard to this ruling. the Prophet (PBUH) says:

'"

"The hand of a thief is flat to be cut offbut for a qUflrter of a dinar or mOre..' (Related by Ahmad, Muslim and other compilers of Hfldlth)
During lhe lifetime of the Prophet (PBUH), the value of a quarter of a dinar, which waS made of gold, used to equal three dirhams, which were made of ~ilvrr. There iJ a dear wisdom in ordaining such amount fur the prrs<:rib..d punishment of amputation, for such amOUnt can mostly suffice a person and those he provides for in a day. Thus, it is worthy of cOnsiderntion that a hand is to be cut off for stealing a quarter of a dinar though th~ indemnity paid for cutting it off is five hundred dinars. This is because when it is honest, it is precious; whereas, when it betrays, it becom es wort hless. Abul-' Alt AlMa 'arrl, one of the atheist ~ts, obj ected to th is saying:

A hand whost indemnity is fl w hund",d golden pieces Wherefore (Ut offfor stealing a quarttr of a djnar!
On~

of the Muslim scholars replied to him saying:

Honesty made it valuable; berrayai made it cheaper

~

milld the Wjsdom of the Creator

Among the conditions that must be fulfilled for amputating th e hand of the thiefis Ihal the stolen property is taken from its rt]>05ilory. The repository of a property is the place where things are usually pUI fo~ sa{.,keeping, becau~ depositing somd hing indi cates safekeeping it. The reposi tory differs acco rding to the kind of property. diff",rence of places. and the ruler', being just Or unjust, and his power or weakness. For example, the valuable properties are to be prtscrvrd inside hou~s, stores, and fortified buildings and the like under secure conditions. and so nn according to the naturt of th e preserved properly

622

X PRESCRIBED AND DISCRETIONARY PUNISHMENTS

and the cwloms ofth~ place. Hencf, if a properly is stolen from a place which is nol considered a reposilOry of such a thing, as when a thief steals from a building whose door is open or from a broken repru itory, then no amputation is to ~ ~x~culed on him. Then. muSI nOI be any doubt on Ihe side of the thief. That is, if there is any doubtlhat may justify the thi ef stealing, then his h~nd is nOllO be CUI ofT, according to Ihe hadith of the Proph et (PBUH) in which he &ay!:

"Avert punishments in the case of suspicion as much as you can."

Thus, Ihe penalty of cutting off Ihe hand is not 10 be = uted in case someone steals from his falhds property or from his son's property, as each of them has a right in the pro~rty of the other. This constitutes a doubt Ihal averlS the exe<:ution of the prescribed penalIy. Similarly, everyone who is enlitJed 10 a righl in a properly and lakes from il. his hand is not to be cut off. However, it is prohibiled for such a person to do such an aCI; thus, he must be punished for doing this and the property he has taken must be returned 10 ilSowner. In addition 10 Ihe above-mentioned cond itiorn , theft has to be proved by one of two ways. Firstly, two upright men mUSI testify to the Iheft and describe how stellling has ox.;url"fd, ilS repository, the amount stokn and ilS kind, in order to .. move all other doubts and possibilities. Secondly, the thi~f may confess twke that he has sloIen. This is based on the followinghadfth related by Abil OawUd:

"A thief wllo admitted stealing wru summoned before the Prophet (PBUH). The Propllet (PBUH) said to him, '[ do not think you have ,tolen: He (the thief) rtplied, '/ did: The Propllet (PBUH) repeated it twict or thrice (and the man insisted On hi, confwion). Thus, the Prophet (PBUH) ordered that his hand be cut off and it was don ."'
The confession made by a thief musl include a description of the way he has committed stealing i n order to refute the possibility that he might mistakenly ~li .ve that his hand must be amputated wherea~ the case does not entail .uch a penalty. Moreover, this helps establish whether the condirions of amputating the thief', hand a", fulfilled or not. The person whose property is ~lOlen must reclaim his property. In case he does not, the penalty of culling off the hand is not to be executed, since properly becomes allowable by Ihe pennission of its owner. Consequently, if Ihe Owner does not demand his property back, th en it is possible that he has allowed the a"wed person to take il, and this constitules a dOllbt that averts the execution of Ih~ h'gal penalty.

623

If IM condilions for culling off Ih'" MOO all' all fulfilltd, ;1 is o bligalo ry to a mp',Uale lhe Ihitfs haoo. Thcll'fore, his righl hand is 10 be CUI off. Th is is l><.wn:ling 10 the ~y in which ' Abdull;l.h Ihl! Mu ' M (may Allah be pleased with him) used to Il'cite the Qur'an k ""I'$e "... amput..te their h ..M ...." (Qur'!n : AIM';'idah: 38) as ".....mput.. tt t"dr ri,"1 handJ. .. T~ position of cuUing is from the wrist joint, as the hand is the organ one wn in stealing; thus, the thief .. punWted by deSlroying such a means. After amputating the hand, the proper tll'atmenl should be applied in order to Slop the bleeding and eu", the wound Ihrough the aV1lilable means of medication, And, Allah, E.ulled be He, knows best

Endnotes
1 AJ.B .... h1 (6789) 11 V! 17] and M.... im (4)74) 1611811. 2 Nii!>h: A. far as thcfi iocon<oml tM,.;J4b rri<on 10 It.. minimum .mounl of proprny .... lin8 whim enl.iI ecUling Ih. P""KribN I"'niduntnt, namely cutting off lhe thi.f. hand. 3 s.-. /'I~m AjMu_owi 'In 12161 6J)
~

S tilt footnote in ,4rRtlwd A~Murbf 17/35' 1, S AJBukhlrf (6790) [l2I 1t 11. MlIIIim (0 76) [611821 , AbO Dtrid (4)8<1 ) 14/JS51 on<!
An,N ..;\1 (4930) [414491, AIn,mlclhi (1(28) [4 /l3]; 0 al'" Ibn M!jah (254S) [)I2l9j. 7 Aboll.ll wUd (080) (4/J5l] AnNbl1 (4892) [4/4Jaj ond loo MJ}ah (2S97) [3/247),
~

CHAPTER

Prescribed Punishment for Highway Robbery

Allah. Exalted be He. wan ts Muslim s to walk safdy through His land, for interchanging be nefits. inc reasing th~ir p ropert ies, maintain ing good relations

with their relatives and help ing one another in virtue, righl('ougot'!(s and piet y.
especially when travding to the Ka'b;,h (at Mecca) to (,<,rfo rm the .it"" o f Hajj (Pilgrimage) and 'Umrah (Lcs<t:r Pi lgrim age). Thus. whl>t'ver intends to obstruct pwplc's course, o r terrorize them on their jou rneys, Allah has legislated a d~errin g p<'n alty to el iminate such an obstacle and h arm from the way of Musli ms. Anah, baited be He, ,;3}'1'

"f"deed, the f't" ..lty for tllou who wage war against AI/Ilh ond His Mnunger "tuf ,tr;"" upon ...rlh {to 'DUse] corruption il no1U but thilll1""y /M killed orcru dfitd or Ih .t their hand. ,,,,d

Jut bf CIIt o1!from oppositt sidtJ or thllt they be u iledfrom tht

x PRESCRIBED AND DISCRETIONARY PUNISHMHITS

kmd. Th"t i$ for them " disgr"u in thi, world; "ltd for them In the H""<ljttr Is <I great punishment. Except for tlrose who murn /rtpentlngJ IHfort you overcome [I."., apprthendJ them. And know that Alf"h i, Forgiv;"g,,"d Mm:iful. u (Qur'An: Al-Ma'idah: 3334)
The meant warmongers in the afo",mentionrd noble Qur'anic verse who strive throughout th"land causing harm and mischief all: the highwaymen, who harass people in the desert or inhabited a rea. and seize their proputies publidy not !tealthily.

[I is stipulated to "xecule the prescribed penalty on the highwaymen that what they have seized be tantamount to th e "i~db of theft. It is also stipu[atrd that they ha .... stolen from a repository, like seizing the property from Ihe hands of its owner whil e being in a Caravan. Also, the highway robbery must be proved whether through the highwaymen's own confession or th rough the testimony of two upright men. The legal punishments highwaymen are to receive differ according to their crimes as follows:

Whoevtr kUls and seizes people's property is to be killed and cru<:ified until
his crime is weIl known. Such a person must not be pardoned according to tbe consensus of Muslim scholars as stated by IbnulMundhir. Whoever kiUs without seizing any pr<lP"rty must be killed without being cruc ified . Whoever seizes the property without committing murder, his right hand and his left leg are to be cut off at one time. then the ble<'ding is to be stopped. and then he is to be released. Whoever just terrorizes people on the way without committing murder or se izing any property must be exiled from the land causing him to be homeless. He shou ld not be allowed to stay in any country but should be expelled. ThUs, the punishments the highwaymen =eive differ aCUlrding to the degree of enormity of their crimes. In this respt. Allah, Exalted be He, says:

"Indud, the pt""lty for thoot wha wtlp ",ar ag<llnst AH<lh <lM H is Museng" and , trive upon t<lrth {to (a""J Cflrruptian i, nan~ but thM they EH 1<iJ/ed ar crucified or that their I"md, " nd f u t Iu cut offfrom opposite ,id". ar that they be txlltd from the "'"d...~ (Qur'~n: AlMfidah: 33)

Sl;hol~rs),

Accordi ng 10 the opinion adopted by the maJorltyofthe Salaf{nrly Muslim Ih is noblewlW was mre;lled ~rdi ng the highwaymen. and this is the base on which they founded their judgmenl$. With rq;ard 10 th ~ lmim AshShj{a' l related that Ibn . Abbb (may Allah be pleaKd with him) said:

"If lhe IIighwllyme" kill alld stiu peop/e~ properties. Iht)' must ~ killtd tlnd crucijird.1f they kill bUI dC1 "01 stiu properlitJ, they must I>t killed Wilhout brillg crucifi~d. MOrt<i\lf'r, if Iher $tiu properlirs wilhow killillg, Iheir llands and foel Iln 10 be cw offfrom opposite sidt$. l/lhq only trrrorize people on WI:Iys withollt sti~ing Ihtir proper lits, Ihty an to ".. exiled from Iht land."
[f $O<1le highwaymen com mit murder. the duth sen tence mUSI be paMed on them all. If IOme of then. commit mumtf and 04hen seiu the property, all of them are 10 be killed and cnu:ifird. If one of $lid! bandits ..,penlS before being apprdIended, Ihe penallil':s pmcribed concern ing hili crime, such asnile, amputating a hand and a foot and inevitability of killing. are to be annulled. H~, tht rights owtd to humans must be ~mrd, be il a IOUI, a limb, or a p roperty (as a fulll]]"",nt of qi~1. i.e., legal retribut ion), uc~ if the bandit is pardoned by the righ tful claimt'rs. Th;" is based on the noble Qur'anic verse in which Allah, E.uhed be He, $aYS:

"Except for Ihole who return {repentlngl before)'Ou oveT(Ome (1.1., apprehend] them. A.nd know that Allah il Forgiving and Merciful." (Qu r'An: AI _MA'idah: 34)
In this respecl, Shaykhul-Isli m, Ibn Taymlyah (may Allah have mercy on him) uid: "Mwlim Mholan have unanimously agnm Ihlll if a high"""""",n, a IhNl and r/tri, lib I/I"t broughl to juslia INjort rh( ruin. or the jud~, and lhey rtptnlll!IUlwmJs.lhc pmcr;brd ptna/I, impoKd OII lhtm is no' 1l'lIIu/ltd, bur i' mwt ".. =Itd e>'l'~ if rhey "'pe"t JinrnYiy."! Thus, the ""eptio n of repenta nce mentioned in the noble vent i. only applicable before they are apprehended. So. the one who I~ penitent after being apprehended If still considered among those on whom the legal penalty mu~t be executed. This is base<! o n the general meani ng indi cated in the previous noble verK. Moreover. acc epting th e repentance of the bandit after being apprehended may be UK d a. a mean. to .u.pend executi ng Ihe legal penalt i.. prncribed by Allah. That is, it i. u .sy for the onc o n whom the penalty must be eueuled to pretend that he has repented in order to be pardoned for the oITenses he h as com mi" rd.

".

X PRESCRl BfD ANI) IlISCRF.TlQNARY PUNISHMENTS

If a!l)'Q~ is atul./;:ked. h~ Itn I"" right 10 <kf~nd himself against the. 0"., who wants to kill him, or dishonor him by "'ping any of hi, fem. l~ ",lalives, JUch as his mother, his daughter, hil s,ster m hil wife, o r usurp hi! property or ruin it.

Thus, one has th e right 1 defend oneself in such e'5(l, whether the .!oSaHant 0 is human or ;on animal. However, one should dri~ the assai lant away by the means one believes the leasl harmful. bfiaUH if one were inhibited from d& nding o~f. one would be ll.armN either physlta1ly or ...garding one" honor and propffly. Bnidcs, if il ~TO 001 pa-miUed, prople would oppress OM an()(her. Rather, if the _ilanl cannot be d rivm away except by kiDing, onc has the right 10 kill him without having 10 pay blood money Or being subjected 10 legal rc1ribulion, baUK OM has killed hIm to ward offhis evil.
If the a!lacked person is killed. he is consid ered a martyr, based 00 the badith in which the Prophet (PBUH) sa)'ll:

"If Ihe proJ1ft'ry flf anylme is bting taun IIway withflld right and he fighlJ; (in dtfrnst)and if killhl, thm ~ if 11 ma,Iyr.'"
loWn Mudim and other compilers of liadillt
(may Allah be pka#d with h im) ha.. narn.lI:d,
~I~'t

tha. ABll Hurayrah

i\ man fin" ClIme 10 rht Me_Mge. flf A.llah (PBUH)) and mid, '0 Mf!SJtMger f1j AI/ah! What if a man W"'tl dtsiring to ,eizt my propertyr' Ht (the Prophel) " plied, 'Then do 1'101 su.rrender your property to him: Tht mlln "'id, ;.tnd what if he fights mt ?' The Prophet rtplied, 'Then fight him bt.(i;: The m"It ,,$ktd QgIlin, ;.tnd what if lot kills mer TIrt Prophel (PBUH) Qru"'f"fTd, 'Thm YOIl ""''' ltIJI.,tyr.' Tht m Dn ",id, ;.tnd whQI if ' kill him?' Ht (PBUH) rtp/ifll. 'Ht will bt crut in lilt Htllfi~'"

Ont must defend oneself ~"d one's II000r provided that this doe. r>ot to lny sffiilion, as A1i3h, Eulted be He. sa)'ll:
Ih",w ()",ane/Yu) wilh ;ytJur IDwn/ hDnds /nlO dulTllcl;'m ... (Qur'dn: A I. B~qarah: 195)

le~d

... A.nd do

1'101

0"" ~ou ld aJso defend IM lift and honor of ,me's Muslim bmtMr. according 10 tM badilll of/he Prophet (PBUH ) in which he says:
"Hrlp Y"ur (Muslim) bro",,~r. wllLlh" ~ iJ <In Oppf?SSt)r Dr he is <lit oppressed ont.
Whal is mean! by helping onc's Muslim brother whilc he is an Opprt$Wf is rtst raining his oppreuion,

Chaptor 7: Pn:scrib! l'uni.hmonr for High"ay R<>hbeIJ

If a thief sneaks into somronc's hou~, he is regarded the same as an assailant; he should ~ driven away by the means least harmful"" p<>$Sibk Whoever peeps into .omrone's house through a crack, a window Or from above the roof, the homeowner h ... the right to drive him away and prevent him from doing so, MorffiVer, if the homeowner hits such perwn's eye and gouges it out, then no indemnity is to be paid for .uch i njury, Similarly, if the homrowner stabs such a perwn wilh a Slick and injures his eye, no compensa tion is to be paid for it. With regard to this, the Prophet (PBUH) says:

NIf anytlllt pUpt into the houS/! of some people without their
permission and "is eye is "",,cMd oul, "either diyah (i"demnily) I10r qit"l (legal retribution) is due then,N'
This is for the sake of guarding the Muslim's inviolability, as well as the inviolability of his properly, his honor and his dignity that Allah has endued him wilh. This is the justice of Islam and how it secures the safety ofthe community and the regulation of its interests in order to develop countries, make people feel .a~, and regulate the m earu of transportation between different regions SO that people may travel securely by night and day. Indeed, humanity would never gain pl"Ollperity save by applying this wi~ legislation, for all the worldly systems and its material powe r have failed to achieve even a little of the aspired security without applying this Shari'ah (Islamic Law). Verily, Almighty Allah, thc Most Truthful, has spoken the truth when saying:

"ThIn is it the judgment of [the time of} igrwranct tluy duil"l~ But who Is better dUll! AlIllh In judgmmt for 11 ptflpll who al"l urtlli" [i" fll;thr (Qur'an: Al M~'idah: 50)

Endnotes
1 S lbn Taymiyah', Mnj"'~ 'ul-FaM-...l [2813761. 2 AbO NwM (4771) [5183], At Tirrnidht (1424) ]4/29] .nd AnNod't (41001[41 UlJ. 3 Muslim (358) 1113421. 4 Al -Bukh ~r1 (2443) [S/122] a nd Muslim (6525) [8/353]. S See Muslim (5607) [7/3631; .... at"" AtBukhirl (690:1) [12l303) and Muslim (56011) 171363].

CHAPTER

Fighting the Rebels

A1llh. Exalted ~ He, JaYS:

be/levt'fI should fight, then mw ItltltlmlIn' IHtwun the two. BIl' if (me of 'hem oppn:_ /be olhn, then figh t Olgaimt tM " ne thAt opprruu IIntil " mUmI to tIN ordi""'It of A/luJr. And if it ""'"....s, then ItfJlh nnlatVn' k,..w" tMm ;"i OUlletl aM dd joud,.. IruJd. AI"'''
lOVs thou ..."" ad justly. TIle lHlitllf'l"J ""' b." m/hen. 10

HAnd

if twCl /Cld/om 'IIHO", 'he

make nil/limen' bo:twun your &rolh" .... And fear AflIlI! that you mlly reln ,""ry.~ (Qur'An: AJ 'liuJur~t: 9 10)
ThUI, Allah, Exahed Ix He. onk" t~ btl~1'$, in th is nOble Q llr'anic ve .... 10 fight the opprusol'l or IM rebels ifthcy do not lK'pl To nciliation.

Furthermore. tile Prophet (PBU H) tays:

6,p

X PRESCRIBED AND DlSCRTIONARY PUNISHMENTS "W/we you (MuJlil7lJ) art hold,'lIg to Ollt single mall lIS your hadtr alld somtollt coma std;;lIg to sow discord amollg)'llu or disrupt )'IIur UII;ty, tlu!II)'11U should km him,"' (Related by Jmtm Mu$/im) lmlm Muslim . lso matw that the Prophd (PBUH) has said:
tuf)'tlfIf! tries 1 disrupl the affair'$ ofthu "a'/OII whik it is ulliltd. 0 )'01' ,J,ould $lriu him with 'ht sword w/lot\'eT h, is',.I

"If

The Prophet'1 Companions also ~ unanilllOU$ly.grd 011 Ap.ting the rd\el,

The word reMlIlon, In Arabic, indicates oppnession, inequity, injustice and deviation from the righ t pat h, Ill; the ubels au those notorious for their inequity and Injustice, and diNen! from the lC3dcn of MutJil'n.!, for M uslim~ must M unitw as onc group under One leadership, Allah. F.uitw M He, uys:
-And hold jinltl"o 'he ~ of .... ,1411 ull together aM do not

MtHttf divided",

(Ql,lr'i n: "lu 'Im rio: 101)

And Ht also says:

"0 )'1111 "'"0 haw bdi~d, obey and thOlf /n lIulhorl'll1mong you __ ,"

AI"''' and obey the M Dffngtr

(Qur'An: An- NisJ,': 59)

In addition, the Prophet (PBUH) says: "I tlljoin)'llu 10 fMr AIIl'h, and 10 hear and obq tWn lWignffl as )'tIur /ctuler,J

if a s/aw is

This is consideml I neea:sily, for pMpk a re In need of leadership. 10 presc~ the rntity of tht Muslim community, protfCI Muslim possessions, ueeute the prescribed penalties. fulfil! due rights" enjoin whal is right and forbid what is evil, In Ihis regard, Shaykhul-Isllm Ibn Taymlyah (may Allah have mercy on him) sa~
"/I must M /mow" ,hal undmakfng rhe rtJPO.uibilill of /'tOpics affairs is one of the fffllresl dulin of the rtligion; ""/uT, neither rrligion nor lift ",n rise Mthour ir. 'TIuI1 is, ~i inlt'TtSt, ",n nfWl' be folJillcrl uUpI throug" ,he u"ill of rht comllluni!}', Mom:wu. any communi/,l1luII /Iow 11 leada TIlt UiwgivtT of Sharl' all "as ordaintd it;n no"tS$ftllial small galhtri'lgs Q,S an alIor/arion 10 do rht samt in olhtr ki"ds ofgath",;"g,"

6JJ

Ibn Taymlyah also says:

"/t is ...d1kM"", tiuu people do rwlthriW U(tpl with the p~nrt' 0/ rultlT, e.... n if thou who tOM 0....,. ore from tlrt unjusI people, for it is bmtr fo r ~ ID ha .... a" u"just rult r Ihlln "O"t, It Is snld /110/: yf<lr u"dtr <l df!Spolic iLad" is berr" than <lnigh/l4li/hour <l rula"'

Thus, if a group of people who U~ strong and powerful revolt against the luder on Ihe buis of misinterpretation, aiming to dethrone him Or oppose: him and to IOW the Sds of dis.sc:nt among ptopl e and disrupt their unity. they are considered rebels, who an: Oppre5S0T$ and transgre""'r>l. [n su,h a caM', the leader m u st ..:nd to them askinS them about the reason behind their rtbellion. If they complain about any Kt of injustice. he should eliminale il. and if lhey claim an unclea r maller, he i hould dear il. Allah, Exalted be He. says:
... 'lrtn .....uMttJemm' wr-n ,he/lOO,. ,

(Qur'ln: Al'l:iujurit: 9) Thus., the peacemaking should be implemented in , uch a way. If wlutlhq bold against rails under what is prohibited. he must remove it; however. if it is lawful but th ey misconceive the matt er belie~ing that it is prohibited. he is to clarify th e proof of its legilimacy and reveal its truth 10 them . After Ihat, if they return to the right path and show all egiance. he should leave them, but if they in!lsl on disobedience, he must by law fight again5l lhem and his subjectl mWI support him. Allah, Enlled be He. $<1)'5:

. T/om filh, ",.,i"st tlrt .,,",,, IluI/ the (lrdj,,(JJK~ (1 Allw. ... /

""p~_

(Qu r'~n:

,. .

t il it ~Iunu t(l AI1fujurit: 9)

Accordingly. fightins tho~ rebds is obligatory in ord~r to ward I>ff th~ir evil and sUpprnI thC'ir $edition.

In fighting against rebels, the following m atten .hould be laken Into consideration:
First: It Ii prohibited t o use weapons of mass destruction while fighting th em. like deSl ruclive bomb . Second: It i~ prohibited to kill their child",n. their t scapets, Iheir injured. &lnd those who give up fighting among them. Third: Thtir D.ptives Ut 10 be imprisoned until IIw! rebtllion is suppressed.

634

X PRESCRIBED AND DlSCIli.'IONARY PUNISHMENTS

Forth: Their pro~rtics should not ~ taken as spoils of war, as they still ~long to thcm just lih the inviolable properties that ~Iong to other Mu.slims. Thus, thcy are impermissible to ~ looted, as theyare still the owners' properties. When fighting comeS to an end and the suppression of rebellion is achieved, those rebd" who find their properties in the possession of any of those supporters of the ruler have th e right to take them back. However, wha t has been damaged during the war is considered a wasted property entailing no compensation, and there is no diyah (blood money) for whoever is killed on both sides. In this conne<:tion. Az-Zuhrl said:
')I. rebellion erupted and was witnessed by many of Iht Companions of Ihe Messenger of Allah (PBUH). They unanimously agreed that none was to be killed in qi~d~ (legal retribution), alld no properly II'<lS 10 bt 1001<1 011 r/,e basis of a misinterpretation of the Quriln, and Ihe proputy found safe on the spot, after the fighl, is 10 be rt.turned to ils owner:'

Moreover. it is stated in the book entitled AIlfsah (Demonstration). They (the Companions) haw agreed that rhere is no compensation for lilt property

spoiled by the just rig/It/ut people for Ihe rebel. alld vire versa.
Iftwo Muslim parties are engaged in fighting and none of them is obedient
10 the ruler, i.e. they fight out of partisanship or craving for leadersh ip, both are considered oppressors. This is ~cause each of them oppresses the other, and

none of them is better than the other. Therefore. each is liabl e for compensation for the damage it may cause to the other. However. if oneofthem fights by the order of the ruler. it is regarded as the rightful one while the other is the unjust rebellious pany as mentioned above. If a group of people supports the opinion of the Kharijites, considering the Muslim who wmmits a major ,in a di,believer, cursing and reviling the ProphdsCompanions. and deeming the blood ofMu.:tims violable. then they ore regard ed as followers of the KhaTi;;te. and considered as diss.olute, vidous and inequitable as them. And if they, in addition to the above, mutiny against the authority of the ruler of Muslims. they must ~ fought. Concerning the Kharijites. Shaykhul-Isllm Ibn Taymiyah (may Allah have mercy on him) said:

"The Adheretrl sof I/Ie S~ nnah agree Ihat fhey Meinnovator> in religion and thal fh,y must be fough.t accordillg ro the authe>ltic religious tUt5. Furthermore. thc OJmpaniom hav agreed on fighting them.

C1u1"<r

8, Figh,ing ,h. R<bd,

There is no dis~gremlent ~mong the Sunni Scholars that Muslims

should confederate with ti,e just nllers who fight agai"s! them (i.~. Ih. Kharijites). Yet, there is a di!;agr~ement on whether Muslims should confederate with th e despotic rulers wha fight against the Kharijites or not. 11 is reported that some scholars agree that it is permissible 10 ally with unjust rulers in fighting against tlrem. and it is permi5Slble to do the same in fighting against the Dhimmis' who have breached their co"mant with Muslims; this is th e opinion maintained by the m~jority of Mu!;/!m scholar<. They also maintain that it is pumiJsible to fight along with ~ny ",Ier, whether he is righteous or depraved, so long as his C<l use is legitimate. That is, if he fights against disbelievers, ap"stnus, covenant-breakers, or the Khar;jires, Muslims shou ld fight alorlg with him, yet they should nOl if the fighting is illegitimate."'
If those who support the ~lid of th~ Kharijites do not mutiny against the rul~r or sow the seeds of dI."ention among the Muslim subjects, they shoul d not ~ fonght against, and th e Islamic laws are applied to them as Muslims. Yet.

they sho,ald be discretionarily punished, rebuked, {ondemnro, and prtVented

from e~pressing their wicked views and spreading th eir heresy among the Muslims, This is the o pinion of those sc h olars who do not regard the Kharijites as disbelievers, which is also the opinion of th e majority of scholars. Ho.....,~r, those who ronsider them dis~lievers maintain that they are to l>e fought against whatcv. r the case may~.

Endnotes
I Muslim (4n S) /6.'4441. 2 Muslim (4nJ) 16/4441. J Ab<l Dl wild (4607) 15/121, AI _ Tirmidht (2680) 15/441 and llm Mlj.h (42) 111301. 4 St. loo Toymiyoh', MOj",Q ""I""MwJ (181)76). ~ Ibid . 6 S.., Ibn Ab~ Shaybah (2795-1) 15/4 571 7 Dlrimm;: A non _ Mculim living in and under the prote<tion of.n Islamic ,tole. 8 s.., lho Toymiyoh's Mo)rn" ""/ /l:Il<lwJ (281376).

.'

'.

CHAPTER

Apostasy
Linguistically, th~ word "apostasy' in A... bic is d~riv(d from "turning back" or "backsliding". So. an apostate is a backslider; Allah, Exalted b.. He, sa~:
..... nd do nol turn btuk ... ~ That i., do not backslide. (Qur'ln: AI-Ma' idah; 21)

According to the religious tfrminology, an apostate is the one who wi!1ingly disbelieve, after embracing IsJ~m. whether through utterance, bdid, doubt,
or action.

There are prescribed penalties ;mp<l~d on the apo.tate in this world and in Ihe H",eoft ... A, for his world ly plmi,hmem, it is ' Iated in the bad,th in which Ihe Prophet (PBUH) IklYS:

"If ~nyont (Muslim) changcj hi, religion (i.t. upoJwtius), kill him."'
Thore is con..,mu, among Muslim scholar. on this judgment and its

Il'levant ruling" such as separating between the apostate and his wife and preventing him from dispoSing of hi. prop"rly before killing him .

".

x PRESCRJBED AN D DISCRETIONARY PUNISHMENTS

As ugards the prescrihf:d punishment awai ting the apoola!., in th e Hereafter, Allah, Exailed br He, states ;1 in the Qur'anic verse that reads:
"': .. And ",hoe ,," of YO" """"'" from his nligio" {t" di.~lufJ mw die, whilt /,e is 11 disbeliever - far ,ha'e, !hriT du ds /Illlit' Mome worth/US;>I this ~rld and the Hereafte~ ,nul thou"rt the ca",p'''''t.". the Fire; Ihey wi/l llbide Ihereln etn .wlly.

at

(Qur'an: AI-Baqarah: 217)

Apootasy takes place by committing one of the breaches of Islam, whether

seriously, playfully, or mockingly. Allah , Exalted be He, says:

' We were only cOllvusil1g <'ind plllyl ..g: SO}\ 'Is it Allah ,,,,d His ver.es and Hi, M"unge, that YOII we,... ",()Cking?' Make no .,xcuse; YOII ha"" disbelieved (i.e. reject..dfailhJ ofte, you, bdief. ."
wjll '1I1'<'/Y SOl}'>
~A "d

if you ask Ihem, Ihey

(Qur'~n: At-Tawbah:

65 -66)

Ho ....ever. if a Muslim is compdled to utter words o f disM lief. he is not "'garded a~ an apostate. as Allah, Exalted M He. says:

"W/roevtr disbelieves ill {i.e. dtllitsJ All4JI afttr his btlitf. Uctpt for "lie who ;s forced I/o ""O~lIct his nUgioll/ while his ht"rt is sullrtlnj"lrh ..." (Qur'an: An-Nahl: 106)

The Brea(hes of Islam by Which Apostasy Takes Place are Many

Th e most grievous among them is associating others in wonmip with Albh. Exalted M He . For example, SOme people associate others in worship with Allah. such as supplicat ing the dead. the fait h ful servan ts of Allah. a nd th e righteous people, slaughtering sacrificial animals for their graves, vowing to them. or seeking help and support from th e dead as grave worshipp"r~ dQ nowadays. So, whoever co mmits any of such acts o f association is considered to have apostatized. Allah. Exahd M He, says:
~lnJuJ, Minh dou 1101 forgive "uod"tioll with Him, bUI He forgllltS ...hllt is "Slllum 'h,,' for whom HI' wills ..."

(Qur'An: An- Nis.1: 48 ) [n this conn N:tion. Shaykhul_blim Ibn Taymiyah. said:

Whoewr makt. medi"to", between Allah alld him,elf, ,uppiic" tillg them .".killg rheir aid. alld putting hi' Inlst ill them. Iuu surely disbtlieved acc"rding 10 Ihe COilS"" '" of Mu,lim ,cho/a",."!

who..ver deni~s some of Allah's messengerll or some of th~ Divin~ Books has surelyapostatiud, as he disbelieves Allah and denies one of His messengerll or onc of His Books. The same applies to who..ver denies the angels or the resur""ction after death; wh.oever does this is an apostate, as he thus disbelieves Allah's Book (the Qur'An), the Sunn<lh (Prophetic Tradition), and the consensus of Muslim scholars. Moreover, whoever disparages o r ""vil es Allah, Exalted he He, or any of His prophets, is conside""d a disbeliever. Similarly, whoever claims prophethood, or believes in anyone who claims prophethood after Prophet Muhammad (PBUH), is considered a disbeliever. Thi, is because such people thus deny the Qur'anic verse in which Allah, Exalted be He. says:

Furth~rmo"",

KMuJ!;unmad is I10t thefather <Jj[ al1YJol1e <Jjyou r mm" but {he is1 , the me&smgtr of A.llah and ,al {i.e. the 1".tJ of the prophm ..." (Qur'An: AI -AhzAb: 40)
Moreover, whoever denies the prohibition of adultery (fornication and sodomy), or denies the unlawfulness of any of the consensually and obviously prohibited things, such as eating the flesh of swine, d rinking intru:icants, is regarded as an apostate. The same applies to whoever prohibits something consensually and indisputably lawful. such as the lawful slaughter of the animals of grazing livestock. The same also applieos to whoever denies the obLigation of any of the p""scribed five actsofworllhip mention ed in the followinghadith in which the Prophet (PBUH) sal'"

"[slam is built on (the following) five (principles); Testifying that

there is no deity but Allah and that Muhammad ;s the Messenger of Allah. estrdJlishing the (compulsory congTtg<ltiona/) Pmym dutifully and perfeelly. paying the ZAkilh, fasting the month of Ramad<\n, and performing liajj (Pilgrimage) to the Sacr.,d House ofAllah (i.t . the M ' bah).~
Whoever denies any of them is de~med an apostate. Additionally, whoever mocks religion, despises the Noble Qur'An, or alleges that something of the Qur'An is lost, missing, or concealed, is indisputably

regarded as a disbeliever.

x I'RF.5CRrBEO AND DISCR.l:.T10NARY PUNISHMENTS

Shlykhul-IsJ' rn Ibn Tlymiyah (may Allah ha~ mercy on him) said:

"/1 is religiously tauII p II'll/UI'd Im.t, alld according to IM COtlSt'lUW ~ Mw/lm sdwJa.,. ..no.on...... vimli(lIln t~ profmion of" m igioll Ollru IIrM/sIn", or rlre snarl'''''' rrwllled 10 Prop/rtl Mulll"""'lld (PBUH) i, a di/btUewr alld hi' disbtUtfrese",blet Ilrau who btlitvt ill parI of Iht Scriptu(#! Illld disbtlitllf' ill the ,tst."
He also said:

"Alld ~r ridiru/u rlrt Pnnniu of AIlIlh or HiJ Thml!, or dotf IIor cOIIsidu l/rose who profell a .digioll ollrer IIIall Is/n", diJbditwl'/' such /lj Ihe Clrrillinll/. ar doubtl Ihtir disbelitf Or "'IIIIII"il1l Iht ""lidit)' of Ihti. crud, is COnsnrJlIIlil), "K"rdtd IlS" disbdi~rr:'
Sbaykhut.lillm Ibn Tooymiyah added:
IIrt Proplrd's Co"'palllo"s or Oll( of rlrt"" and adds his rtYilt",.,,1 ,," Illl~aljoll Ihll/ 'AIi Ibll Abll1i2lib is a god or a prophellllld that llbI'll (Gllbrld) has m id (Illld mTllled tht MtJ.$ap 10 MubJ>"'mlld Inslm) is IIndowbttdJ)' Il disbduwr:'
ID
Wlr~r cuntS

Additionally. whoevtr judgts with thoe positi~ laws instead of th., !$Ilmi' Sharl' Illt, btIievillg that they art mort btneficial to people than the latter, or whotYer adopts the Ideology of ,ommunism Or Arab nationalism instead of Imm. i, undoubtedly an af>O'tate. There an many typa or apostasy. For aample. claiming knowledge of the unKtn is an act 0( apr,tI'bsy. absolving tbt d isbelitYm; rrom disbelier. dO\lbtlng their disbtli er. or deeming their erud valid art aets of apo;stasy. and belitv ins that ceru in guidance or ~ certain judgment i5 mort perf"'t than that of the Prophet (PBUH) It an act of lpo&tasy. In addition. dtUsting something brought by Ihe ~nger of Allah (PBUH). mocking something related to the rdigion Of lhe ~ngn of Allah (PBUH), and denying. entaln rewa rd Of" punishment stated by him art IKU or apostasy. M(:II't()VCr, supporting the infidels and helping them against Muslim.! an: acts Or apostasy. The un'e appIin to those who believe that some people are permined to deviate rrom the Sharl' ll11 brought by Prophet Muh.mmad (PBUH). su.c:h all the ntremW SurL5; thty an regarded as apostates. Liktwl5e. thou who 11.11'11 _ _ , from the Rtligion of Allah. Wam. refraining from learning il 01" acting acrordins to its ttlchlngs art considered apootates. All thf aforementlont'd art amons the asptdS of apostuy and the \In:a,hcs of l~am.

o.,l"Cf 9: Apos""'l

Sheikh Muhammad Ibn . Abdul-Wahh'" (moy Allah ha"" mercy on him) said:
"There is no distinction regarding all these breaches between committing them jokingly, seriously, or fearfully, saw the case when on e is forced to commit them. All of them are extremely dangerous and they happen so f~quentJy. Therefore, Muslims must beware of them and beon their guard against them. Verily. we seek refuge with Allah form the acts incurring His wrath and painful torment."

These are some example. of the breaches of Islam, which exc..,d by far what is mentioned above. Therefore, Mwlims have to learn and know them in order to k on their guard against thern and k ahle to avoid them. This is because if one is not aware of the aspects of associating others in worship with Allah, one kcomes apt to commit it. Urnar lbnul -Khan~b (may Allah k pleased with him), said:
"The knots (i,e. haf'ldholds) of Islam arT about to be unrawltd Ol1t aftt, al10th er if there arise in Islam pMple who kl10w not the PTe Islamic u a."

So, I advise you, gentl e readtr, to r ead Shaykhul-Is11m Ibn Tayrniyah's hook entitLed "AdherTnct: to the Stmightway Requires Opposing the People of the Htllfil'f'~ and Sheikh Muhammad Ibn Abdul-Wahh1b's hook entitled "The MMters in Which the Messtrlger of Allah Opposed the Poople of the Pre-lslami' Period of [gnoranc. and it. explanation by the great Iraqi Muslim scholar Mahmud Shukr! AIAlru!, may Allah have mercy on them all.

Whoever apostatius must be asked to repent and k given a thn:e-day respite: either to repent Or to k killed. This is kcause wh~n . Umar Ibnul KhaUab (may Allah be pLea.5~d with him) was informed that a man had apostatiud after his ~mbracement of Islam and had been killed without king asked for ""pentan"", . Umar said:
Why have you not imprisontd him for three days, fed him a loaf of bread every d~y, and asked him to ,"pmt? Perhaps he may have repented and recansidtred the Commandment of Allah (i.e. Islam). o Allah! I have not witneSjed it, and I would not have approved (Df killing the man) ifT h~d been informed."

(Related by Im~m , AI-MuwaUa)

M~lik

in his collection of

l1.~dfth

entitled

'"

onu, a

Owing IQ I~ {:>Cl that IIp')Slasy is caused by doolM and is nol dispdlcd a' ~pit~ must M gi~n 10 Ib~ apmt~t( before killing him that he may

mWilate and recant. As for the proof of the obliglltion r>f killinS the apostate if
h. dot. not repent. the Proph et (PBUH ) says:

"If ",n,ran. (Mullim) ,hallgts his religion (j.e. aposl<ll;ztj), kill him;
(Related by AI-Bukh~rI and AbU Dlwild) '

The killing of an apmtate must br handkd by 1~ jud~ or his dept..y. for it isa punishmenl fo~ violating onc ohM Rights of Allah. so il is the duty of Ih.. one in authority 10 establish il. TIle wisdom bdd nd the obligation of killing the apostale is Ihe fact that h.. has known the Religion of Truth and then abandoned it. Thus, he has ~ome . corrupt person who no longn- dele,ve$ 10 live; he ha~ become a corrupl~d memkr that may harm the society as wen

a.s Ihe Religion of Islam .

Rq.rntance is fl,llfilkd by uttering the Two Tescifications of Faith. due to ,hc ~ mean in g of thoe budilh in which th( Prophet (PBUH) says:

. ( haw ban commanded (by A/lIlh) 10 f'KllI Ihe people IInlil they say. 'Thert i5 110 dtily bill AIIIlh.' If Ihry fay il, they will pro/m IMir blood IHld property from "'t, explfor (~iolllril1gJ lUll",;':"'.., (jor which they will dtJtrvt /0 be juslly pr""imelf)."'
whou aposla,y i5 based on the denial of on~ of the along with uttering thc Two T~Slifi,atioru ofFa;th '- is fulfi lled by hi s ICknowkdgmcnt ofwhat "" hu denied.
A. for an
fundam.ntalson~.m, his repentance ap<l$tAI~

An apostate is p!"(~nted from d isposing o f his properly due: to tilt dtpen<k~ of othn peopIe's rights on it, just like: ' he Pl"OpC'rty of a bankrupl. ThU$. lh~ ddm o f an apo$1atc, his own el~n5CS. and th.eelpemes of his family are 10 b-e managed through hi, PrDJ'f'rty, throughout Ihe period he is prevented from disposing of it. If the apostate rean!s and rtturn s 10 1.lam, hc re!rit"Ves his property and he I, enabled to di,pou of it once agai n, as the ",aSOn for preventing him from disposing orhi. property i. no longer the,..,. Howc~r, if the apostate dies without rt'Caotatjon, or gets ki lled while . till an apostate, his property bn:om(s /ay' (i.e. spoil! gained without fight jog or war) belonging 1 0 t,," Muslim. Publ k Trtas ... ry. Thi. is bcca ... ~ an apostate is supposed to ha~ no heirs, for h~ is rqprdcd:os a disbdievcr. and Muslims do nm inhtril from disbtl~ In addition. he is rool to be inMited by any of d~ di.sbf:1~rs. llOIeven those to whose religion he con~"ed, fo~ hi' aposta<y is by no meanS acknowledged. Furthoermore, an apostate inhoerita from neither a disbelie~r nor a Muslim, for the Prop~t (PBUH) SJ}'I:

Ch,p'" 9, Ap?swz

iI. Muslim does not inherit fro m a dis!>eliewr, nOr does a disbeliever inherit from a Muslim."Muslim scholars (may Allah have mercy on them) have disagrm regardi ng th~ judgmon t pertaining to the acceptance of the repentance of th e one who has disparaged or reviled Allah, Exalted be He, or His Messenger (PBUH). Some of them are of the opinion that his r~ntana. is not accepted as regards the worldly rulings and prescribed penalties; h. is to be kill.d and disallowed to inherit or have heirs. They maintain that h. is to be killed anyway for the gri evousness of his sin, the viciousn ess of his creed, and his belittlement of Allah, Exalted be He. Anothergroup of scholars believes that his repentance is accepted, for Allah, Exalted be He. says:
"Say ta tha.t wha have d/obeliewd [that} If they (tau, whlll has p~vious/y o"urrw will /Je forgiven for them . .~

(Qur'an: Al-AnBl: 38) Likewise, Muslim scholars (may Allah hav~ mercy on them ail) have disagreed regarding th" acceptance of the repentance of the one who has recurrently aposlatiud. Some of them maintain that his repentance is not accepted in Ihis world, a nd the prescribed penalty p<'rtaining to apostasy must be imposed on him, even if he repents. This opinion is based on the fact that Allah, Exalted be He, says:
"IMUd, thos .....ho have /Jelinoed then dis/Je/kvt d, then belitvw, th.n dis/Je/ieved, Ilnd I/I.n inCTf1llsM in di.belief - never will Allahforg/w them, nor will Htguide them to a way".

(Qurln: An-Nisi': 137) However, another group of schola~ btlieves that his repentat\~e is accepted. bas ing their opinion on the Quianic verse in which Allah. Exalted be He, says:
"Stly ItI t/l<ne who have d"/Jell~wd {t/un! ifrhqce.u., wlwl /ltI. previously cw:(urred will /Je forgiven for th. m . ~

(Qurln: AI-AnfM: 38) The aforementioned verse i~ a general one, and the phrase thost who haw di./Je/itvw indudes th~ who havt n:peatedly apostatized. as apostasy is a kind of disbelief.

".

X PRESCRIBEOAN O DISCRrnQNARY PUNISHMENTS

Scholars ha~ also disagrd rrg:oming t~ <a"tpl.ncfl of rm ""pentana of

hypocrit~. who pll'lrnds to bt a Muslim and hides disbdief. Some scholan maintai n that the repentan ce of such a pe""'" is not accepted, as he cannot mow a ny more signs of hit re~!"5ion tn Isl~m. Allah, Exa ltcd be He, say"
njd~lIt { ...hlll 'htytONUalulJ ...

K Excrpl for those who rtpnit ,...d CO" " , ,h, ,"IeweI lI"d mGu (Qur'ln: Al-Baqarah: 160)

nw is 10 say, if such hypocrites declare ~ntanc( and try 10 !.how signs of their l"-m. il will not Mlrpu5 I~ir previous i 'ale, as they used to show Warn and hid( disbc:lid' anyway.
However, some olher scholars maintain thllthe ",pentanee of such hypocrites Is acceptffl, for All ah, Exalted be He, says:

Indeed, tllelryptKrlttS will be in Ihe IOIHII dep/III of the Fin: - alld "....." w/ll >'1''' find for Ilrm! .. ht/pt. EJ(Cflpt for thou who

"1""'. corTeet dumuJ-. holdf<lSt 10 Alloh. ""d a",sinctre i"

tltnr ..digioll ftw All..., for ,11. - w;U N with the Wllewn. Alld AlWIlI gfHII, 'O'/O'C /he btll~n " VU' rtWdrd.(QuIln: AnNisl'; 145- 146)

In addition, the Prophet (PBUH) rff'rained from punishing the hypocrile! due to Ihe signs they showed of their Islam. Among the sects of atheism and disbelief arc IhOR who believe in Ihe tll1ltlli)'yah (immanentism or pantheism) and the lWbi)'yah (libertinism). Other examples of disbdief are the One who prefers his maskr (or sheikh) to Prop~ Muhammad (PBUH) and IIle one who beliC'vu Ihal if he ~ knowledge, he is exempltd from what is divinely ordained or prohibited. The sarno: applirs 10 the OM who bdicv,", that if he POClessn knowl~, hi" is permitted to profess the cl'Nd of the Jews. the Christians, or i uchlike sects that have abjured !:;Iam, such a.I the extremis{ Su!iJ I nd others. MU51im Khola... (may All ah have mercy on them all) have also disagreed concerning the validity of Islam embraced by a dls.crlminaling child and the ru ling on hi. apollta.ly. Some scholars maintain that apolltasy of such dis.criminaling child occun if he perpetrates any of iu forms., because if the Isbm of. person is deemed valid, his aposta5y is deemed valid as wdl Since Islam embraced by. dikrimi .... ling child is valid, his apoctuy is deemed v:aiid, yet luth an apostate ch ild i. !'lO110 be killed until he is asked 10 repent aft.,. be has rea.ched puberty and hu been given a three...uy respite then. If he repents, his repentance is acpted, bllt ifhe d oa not, he ;$ \0 be killed.

Moreover, scholars have disagreed regarding the one who abandons the performance of pra~r out of negligence despite his acknowledgment of it, obligation. The sound opinion in this regard is that such a person is regarded as a disbeliever. This is beeau.., the Prophet (PBUH) says:

"Between a man and polytheism and disbelief is the negligence of Prayer.-"

He (PBUH) also says: "The (only) COIIWI1HOII betwetn us and them (i.e. the disbeliever.) is Prayer, so whoever lIeglecls il has become unbeliever."
In add ition, Allah, Exalted be He. says:

"[And asking Ihem1, 'Whllt put you into Salj<lYr" I Tlu:y will sll)'J 'We wtre not of thol{l who prayed.. .' ~ (Qur'ln: AlMuddaththir: 42-43)
Allah, Exalted k He, also says:
"But

if they repent, u tablish pr"}",,, and gi_ ZtlkAh, thell they

(Qur'an: At-Tawbah: 11)

"re ,..,UT broth.".. jn nligic",.w

The aforementioned noble Qur'ank verse indicates that whoever does not perform prayer is not on e of our fellow Muslim brothers, unless he "establishes' prayer, as mentioned in the ver"". not only acknowledges its being obligatory. Moreover, the Prophet (PBUH) ,aid:

"Islam is built on (the following) five (principles): Testifying that thert is no deity but Allah and that Mub.ammad is the Me~enger of Allah, est"blish;ng the (compulsory ccmgreg"fion"l) PT"yers dutifully and ptrfetlly.. .~
The Prophet (PBUH) did not say, "acknowledging the obligation of prayer," but he said, "tstablishing prayers." Unfortunately, slackness and negligence regarding prayer have bt<:ome so recurrent nowadays. It is really a ..,rious matter, so those people who are negligent of prayer have to repent WAllah and rescue themselves from Hellfire, as prayer i, the basic pill~r of Islam that safeguards one against immorality, wrongdoing, and sin.

x rRESCRIHFD AND DISCRETIONARY I'UNISHM ENTS

Endnoles
I A1 8ukhlrt ( 301 7) 16I ISOI. Ab.) N....od (41SI) l4Ill9] ..... Ti, mldhT (1462) 1"'S91. AlINu. 1 (<4071)) 1(1130) and Ion Mljab (lSl S) IlI!14 1_ 1 2 See Ihe fontnol. in II. "' R~"'II II.IMurb/ " 1714001. ) See tile (OOInOle in i\.t Ra"'llIoI-Murb;" 17/4021. 4 See [bn T~)'miTal". MojmQ (2811i6). S N1lik (WJ)and lbo AbI\ Shaybah (moW) (61+44 1. 6 AI lklkh1rt (.lOI n 16HSOI. AbO DowOd (4)51) ["'3)91. .... Ti' midltl (1462) 1"'591. An Nul' (010) 141 130I.nd Ibn Ml joh (lS3S) !lIZ l( 1. 7 Mu, lim [127) {1/156]: IIH .1<0 AIHukhlrl ( I J99) Illllll and Mullim [124) [IIISOI. 8 The 1'wu T... ificalioll' ofFo~h; Saying. "[ IUI;fy thallhe .. i. no deity bul AlIak."d 111.01 MulPmmod is ItIt M..... nt.. of Allah. " 9 A"""" It.. rulings mill,.. 10 opo>l-OOy;' 1 !he opo5UIIo and his (MwJim) wift I .. 1\01 10'" ~ Y<t, Ir h< repn>b bef<n hrr woitlng pniod io donf. 1h<y an ....... I~ in mmiI.... ond if lhe wUiinl pniod is done bofon: h< repent .. Ih< "",'rlago """t fOCl is d<tmed InI'Ilid from I~O Ilnw hUpoMoliu d: thi. oppIi<o ...... n Ifh. had opostatiU'd bftor< the mmll 8'" w:u C<Jn8I!mnlal.d. AjBukhlrl (6764) 112/61 I .00 Muslim (4116) I6IS1j. 10 M.wlm (243) 111259). 11 s..q.tr. One oflhe ptes la,.... of It.. HelI6...

" u/"","""

CHAPTER

Food
Food is the means of oourlshment of the human body. and its dfrcl is rtfIedtd on man's bdIav10 r and conduct; ""nee. good .,,,,ful food ha.. a good nTea on thr human bo:ing, and rvil food ~ an n-il dTrct. for this ~ason , Allah. wlled too: He, hu oommandrd Hi. w-varn s la eat good lawful food, and bu fo rbidden th em from eating wh at is un lawful. Th is is illustrated in th e

foll owing verses:

Allah , Enltrd bo: He, SKyS:

M ",,,,,'d,,d, eat from "'''"teW>" is on .".rl', {tlta' h/lawful O

ilndpod .. ,"
Allah, tM Almight y, also 58.~

(Qurln: A IBaqal1lh: 168)

-0 ".... who MW! IH/lewd, tIJ/fNJm IM good ".e., ,,,wful} thinK' which We haw proYldtdfor you tllld be Irllttfi;1 to ;\/1"" if iI i. (Indeed) Him ,h", }'('u w"nhlp'(Qur'1n: Al -Baqara h: 172)

'"

XI FOOD

10 addition, Allah, Exalted be He, says: "0 muungrn, Ntfrom Ihe goodfoodslmd W(lrk righteolUneu, lndud, I, of what you do, .. m Knowing." (Qur'An: AI-Mu'mimln: 51) Allah, the Exalted, also says, ~Say, 'Who hru forbidden the adornment of (I.t" from) A/lllh whkh Ht hll' produced/or HIJ ,ervallu and the go<NI flawfrd} tb111p o/provisilmt' ~ (Qurh: AI-A' rif": 32)

Linguistically, food is generally everything that can be eaten or drunk, and all kinds of food are originally lawful according to the general m~ing of the noble versr'
-It is He Who
cr~td for

you all of that which is "n the urlh .. ,

(Qur'~n:

A1-Baqarah: 29)

In addi tion to thi s verse. there are many Jegal texts in th e Qurln and the Sunn"h, which indicate that all kinds of food are originally lawful except what is particularly excluded. With ,..,gard to this, Shaykhul-lsl1m Ibn Taymiyah says:
"Th. basic ru~ i. th~t ail good kind. offood ~re "'wful fw the Muslim who dOl'< "'wful deeds. Th~1 is, Allah, the Almighty, has made I~wful Ihe good food for Ihou who makt use of it in ob.ying Him, nol in disobedience. AJ an illustTlllion to Ihl., Allah, Exalted be He, says, 'Tht~ 11 nol upon thou who bdltYflllnd dl1 rlghttousnt.. (~rry] bw..t amarning ",lwlthty h~w: tlllm (m Ih~ PIl"] .. : (Qur'an: AIM~'idah: 93 ) Therefore, it j. impenniJsjble 10 utiliu what is lawful in disobeying AIIIlh. For e:wmple, it is not i'""'issibI~ to giw: meat and bread to someone who drinks alcohol and commits immoralities. Thost who eat from the lawful food and do not thank AI"'h fw this blessing, are ""nsured. for Allah. the Almighly, '~>",. 'Th~n)'<>u will filmy be askM that Day Ilbout pltasu~: (Qur'~n: Al-Kawthar: 8) "'

The w:..se mearu that one will be asked on the Day of judgment whether one has thanked Allah in return for this pleasure or not. Allah, Exalted be He, has allowed the believers to avail themselves of the lawful thing, as indicated in the following noble verse:
{O Mubammml], whllt hll' bun mlldt lawful for th.".. Say, 'Lawful for )'<>u Ilre {1lI11 good jood, ...
H

~They n.k you,

(Qurln: AI-MA'idah: 4)

9.apkr I : Food
Allah has darirted to H i ..,rvanu what Ht has forbidden drink. IS He says:
t~m

651

1 eat or 0

", .. He lull up/Ailled i" tkl..il IDyou wIw He Ill"JorbUltlm YOIl, ucepll"l ,ha, to ",hid rou tl~ fO",pdlrd .. : (Qurh: AI An'Am: 119) Thus, tny food that is not prohibited by Allah is deemed lawful, as illustrated In the following badith in which the Prophet (PBUH) says:

Ewt,Mdjtjt;( be He, has ",ade obligations so do no/ ""g/I them, ,,,,d He h", sd limits so do nol transgress Ihem, and He has prvhibittd things Sf) 00 nol violate Ihem, and Ht h/U IWl made 01 menlion ol(OIlher) things (i,t., He htlS neither decnulthe", lD"'ful nor prohibited) not out offorgetfulnns Sf) do not suI< to know them.'" "Allalt, Almighty
dlld

I ...

bad/lh ~ying, "This is 01 b<wln (good) badith which is lYialtd by Ad-DdraquIII;

'm N.wawl (may Allah ha,.., mercy on him) commented on this A,,

OInd otller (,,"'pilus "I Had;,h:

Any kind of food, drink or clothes that is not prohibited by Allah Or His Metstnger (PBUH ) is cons idered lawful and it is impermissible \0 prohibit il. That Is he.:IUiC Allah, Exalted be He, hu defined and explained to us what is prohibited: thus, whatever Allah prohibits il wellexplained. As it i. impermissible to unction what i, prohibited, it is also impermissible to prohibit what Allah hl5 decreed "-' lawful and ha5 not mentioned U prohibited. The ruk ollhumb in lhi$ ~rd i, that Iny pIIlY and harmless food is lawful, in conlnst 10 the: impur~ food such as the mut of dead animals., blood, droppings. urine, liquor, hashish, and anything dtfiltd wilh an impun: object All such things an: forbiddrn. as Iiq- art :.111 evil aod harmful, ~ 00 tht following vtne in whieh Allah, I"" Almighty, 5BYS:
"Prollllrlttd to roll a re defMI anj",ab,

"'ood,theflesh ,,"wint .....

(Qur'in: Al.M"idah: J)

an imal that dies wllhou t being sl.u ght~red according \0 the legal way of slaughtering. It is forbidden by reason of being an evil food, as one', purity i~ ~urely affected by the ki nd of food one,eau;. Prohibiting IUth kinds of food is 0". of It..: virluc, of the Shar/'tlh (Islamic Law). However, if one iscompt'lled 10 cat5uch a food, it is lawful for him todo >0 and the ISp! o{~ing imputt and rvil is nullified undcr the d rcumslancn
As for the du d, it i.

th~

Xl rOOD
of necessity. This is because the evil impure effect of the evil food is only there when one is willing to accrpt eating such a kind of food. So. when one is obliged, under the -circumstances of necessi ty, to eat such a food, one'. pllrity is nOI aff~led by eating it. as the bad effect only happens when one voluntarily eat. such an evi l food. Thus, when there is no choice other than eating evil food, there is no harm in eating it.
As for blood, it is the blood sht<! as a result of slaughtering an animal.

of the Pre-lslamic Period of Ignorance (AI-Jdhi/i)Y<lh) u",d to put it in the entrails, griU it and e8t it. However, whatever blood remain ing inside the flesh of the slaughtered animal or in the veins is lawful. Rather, it is not cons id ert<! impure even if one toureel; it with th e hand o r with a piece of colton for example and it leaves visible traces. In this respect, Shaykhul-lsbl.m lbn Taymiyah (may Allah have mercy Oil him) say"

~ople

"The right opinion is th~tthe blood that is forbidden is rhe shed. the spilled or Ihe poured blood; however, the blood left in lire wins is not dumed prohibited by ~ny of MU5lim .a.oIars."'
Moreover, it is prohibited to have any kind of food or drink that causes harm to the body, su~h as paison. intoxicants, hashish, or tobacco. Allah, Exalted be He, says:

"; . And do not th,..,,,, lyf}l,rs~I\IU] with your {own] hands /"to du tructiolt n (Qur'an: Al -Saqa rah: 195)
Thi. noble Qur'anic verse indicates the pro hibition of eating or drinking
anything that may cau", harm. In addition, there are many other legal proofs that emphas ize the prohibition of any kind of food or drink that may be harmful either to one's mind Or body. Lawful kinds offood are divided into two kinds: anima4 and plants such as cereals and fruits. Thll~ ~ny harmless kind of food is lawful. Animal. in turn are di~ided into two kinds: land animals and sea animals. Land animals are lawful excepl th ~ type> prohibited by the Lawgiver ofS harf"ah and they are as follows: The domestic donkeys; this is illustratt<! in the badith narratt<! by Jibir (may Allah be pleased with him) who ha. said:
"The Prophet (PBUH) forbade (eating) the meal of dom ..tic donkeys and he permitted the (ellling of the) meat of horses."'

(Related by AI Bukh~r! and Muslim)

Oupm I: Food
Ihnul-Mundhlt RI~ "The,., u ,.., d iUJgl'IItt/l/ "mOtlg Mudim schoWl'S ~rding tlu prohibition of /~ flesh of domtstic donays."'

Land an imal, that have fang~ used for preying .re al$o prohibited, according to tht hlldllh narrated by Abit Thl laball AI. Khu.han i (may Allah Iw: plea..ed with him) who has Rlid:
"Th t MtsMIIgt7 of A/lnh (PBUH) prohibited Ullillg ""l of/Iu jll/lgtd

Mutsofprq."
(Rdattd by AlBukhl rl n d MtUl im) excq>lion to th is ruling and thlt is the h)"'na; it iI lawful to eat its meat as indicattd in the bM/lh narrated by Jibir (may Allah Iw: pleased with him) as:
Tht,""

i5 only

OIIt

"Th", Mwt llpr of Allah (PBUH) onitrtd us to t al (Ihtfltsh of) h~na."'

In this connection, the great Kholar Ibnul-Qayyhn (may Alla h havr mt rcy 011 him) has Hid:

/lI", animals ,lull a,., proIribittd "rt lhost h"villg lilt two ,,"ribll/ts
of hmng fo/lt:J Ilnd bf;/lt pmhllors '" lUll",., JUch as lions. woIw:s, tigers, and kopIJrrb.. B.. " asp rh", h~"", it anly h<u O t O " flhNt two Mlrib.. tts; ;1 h<u fangs b.. t it iJ 110111 prWalor btasl by /1111"",. The be<utl of prey a,., forbiddell to bt t aun owillg to the prtdmory lIat"rt they pouw which Il IfTlrumilltd 10 the olle ju:ding on Iht m. HoWl>,"- the "lffla is nol <<m$ide,.,d a bt<u' of prey by "a' ...... whrrher lillg ..isllClllly or cOIIw/llw""II1'''
Birds...., genrrally IawfuilO Iw: ealm. with the exception ofbirds with talons u.ed fo r preyI ng and hunting animals. Eumpln of such birds are eagles, falcons. and hawks. The prohibition of eating such kinds of birds is illustrated in the ttaJ;,h narrated by lbn . Abbb (may Allah Iw: pleased with him) who hlJ said,

"Th", Mt=ngtr of Allnh (PBUH) prohibited tating any of /ht fangtd btMlJ ofp~y 07" "ny of Ih, bjrtb having I"JonJ.~
(Rd altd by AbCl DIowod Ind other compilers of Had/I" )'
Im1 m lbnul-QIIyyim (may Allah hIM" mercy o n him) Hf$' "There a .... m:urnnl III1lTlllwru reWlw about Iht Prophd (PB UH) illdicming he (PBUH) /tu prohibited taUng oIni......r. with fant:J, i.t.. btMts ofprey (or birds with la/on.). Tht validily ofJllch tradition. is

"'111

XI FOOD

accordiMg to 11.. b~dith. n~rmted by 'AIi lbn Ab" Idlrh, Ibn "AbMs, AM Humyrah ~nd Abo1 Th~ '/abah AI-Khushanr (m~)' Allah bt plooud with th,m ~II;: " Among the birds that are forbidden 10 be ealen are IhoK which feed on carrions. like vultures and crows, owing 10 the evil food they feed on. It is also prohibited to eat the animal5 that are considered fouJ, such as snakes. rats. and insects. Shaykhu l-ls1lm Ibn Taymiyah (may Allah have m ercy on him) say"

irrtfUr~b/e

"11 is un~nimousl)' ~greed upon ~mong Muslim scholars that eating snakes ond scorpiolls is prohibited. Therefort, if 011)' on, eots such animals rtgarding Ihem as lawful 10 be earen, he is 10 be urged 10 repent (jor Mn)';ng an agreed upon legal ruling). aMd whoever rrgards them as prohibitul foods but eats them is 'muidered sinful and defiantly disobedient to Allah and His Messenger (PBUH;:'1
A. mentioned above. it is prohibited to eat insects, as they are injurious.

Among the animals that are prohibited is whatever is born as a result of copulation between an an imal that is lawful to be eaten and another animal prohibited to be eaten, such as the mule, which is theoffspringofa horse and a domestic donkey. The reason behind prohibiting the eating of such an animal i, giving priority to the aspect of prohibition over that of lawfuln .... Some Muslim scholars have classified the land animals prohibited to be uten in six type"
1) Animals particularly stated in the Quran and Sumlah such as the

domestic donkeys
2) Animals

by certain characteristics and criteria, like the fanged beasts of prey and the birds with talorn
re~tricted

3) Whatever feeds on carrions, like vultures and crows

4)

Whatever i~ perniciOUS and injuriOUS, like rats and snakes

S) Whatever is born as a result of COpUlalion between two animals, one of which is lawful to be eaten and the other is prohibited, like the mule
6) Whatever th e Lawgiver of 5harf"~h has ordered

us 10 kill, like the five pernidous animals (i, . , the rat, the snake, th e scorpion, th e rabid dog, and the kite), and whal He, the Almighty, has forbidden uS from killing, like Ihe hoopoe, and Ihe shrike.

Chapter L Food

655

An other animals and birds that are not included under the above mentioned categories are considered lawful according to the rule stating that any thing is deemed lawful until proved otherwise. The examples of such animals are horses, animals of grazing livel;tock, poultry, zebras, antelopes, ostriches, rabbits and other wild animals. All these animals are considered good food, so they are included under t he meaning of the Qur'anic verse in which. Allah, Exalted be He, says:
"; ""d ItUlku lawful/or th~m
th~ goad thi"g.~

(Qur'an: AlA'r.if: 157)

The ja!ldlah" of cow. and camels are excluded from being oflawful food. Imlm Ahmad, AhU DAwlid and other compil ers of Hadith have ,-dated that Ibn 'Umar (may Allah be pleased with lIim) has said:

"The Messengerof Allah (PBUH)forbadt eatingjalllllah or (drink ing) its milk.""

It is also related on the authority of' Amr Ibn Shu' ayb that the Messenger of Allah (PBUH) forbade eating the meat of domestic donkeys and (forbade) ridingjaUalah or ~ating its meat", It does not make any difference whether the ja/Id/an is from the animals of grazing livu tock, poultry or other animals. Moreover, its milk and eggs are also considered impu.., until the animal is detained for thrff days" and fed on pure fodder only. In this ..,gard, Ihou! Qayyim says:

"Muslim uholaT$ have unanimousiy agrred that if the animal is fod on impure fodder, then detained and fed on pure food, its meat ""d milk Meome lawful. Likewise, if plants and fruits are watered with impure water, then watered wirh pure water, they are deemed lawful. Thus, they art no longer deemed impure food because they have Men converted to good and lawfulfood by means afpure wate~" "
Eating onion, garlic and suchlike foods with a bad smell is detestable, especially when attending mmquu , as illustrated in th e /wdilh in which th e Prophet (PBUH) says:

Whotvtr ears from this plant (i.e., g<lriic) shouJa ""I enl" our m"'qu~." "
If anyone is compelled by necessity f(} eat a prohibited food other than poison food, lest he should perish, it is deemed lawful fOT him to eat only the amount that will support him and keq> him alive. The proof of this is shown in Ihe noble verse in which Allah, Exalted ~ He, say~:

'"

XI FOOD

", .. B'" wIIMWflljorud [Iry IItuaity}, " rith,.,.dalrillg [#1rrllrlSgrnsillg /It, IImltl. th,," U 110 lin ,,1'<'"111"' .. (Qur'in: AI-Baqarah: 173)

Also. if anyone il compelled to eat from the food of others, provided that the owner of such a food dOts not racc the same circumstances of compulsion, Ille fOOTlef must ~ o(fe~ .. hatn<er may kup him aUn: in Amlm for ~yin8

the price of the food. FurthermOK, Shaykb1l1-liUom Ibn Taymfyah (may Albh
h:m: mercyon him) $;I)'$'

"If the person ill Nud '" IM food is poor, 'hen Iu dOtJ 110/ hll>'f' to pay
,,,mpenstltion In nrurnjor food,for Juding tht and clothing rh. nilUd is a colltctil'fl duty. and;1 becomtJ an Indi~ldlWl duty " on rh. ptnO" orhu than whom no Ont can ulld~rrab such a duty:"

"""l')'

Morrovtr, if &OmeQnt Is comptlled 10 use the properties of others withoot consuming such p['()ptrty. like .wng clothes to prolKI the body from coldness, rope o r a buckrt to obtain wat"r. Or a cooking pot. h.r must be given such things at J>(l cost, providN that the OWTltt is neM in nd of them. This is baUK Allah. the Almlgllty. has dispraisW withholding such things from the poor in the, Qur'anic WT!It:
"And withhold /llmplt} QUlltllnct.
(Qur'An: Al MA' itn: 7)

Commenting on tllis noble verse.lbn 'Abbh. Jbn Mu'Qd and others laid:
~This vnTt

"it,., /0 tht I'tt lui/s fJUJplt !hart and ""rrow among

iI

thmue/vn JUch as IIUJ, pots. blktJ and rhlllkl,'"

p;LSKrby 10 eiII from the fru itJ of a g..rden thill has neither iI fence nor guard, whdhrr the fruits are "ill on the trees or haw fallen 10 tilt grourKI, However, one has DO right 10 any anything of it. Thit is the opinion adopted by lbn 'Abbb, Anas [bn M:iJik and others. Yet. one is nol to climb a tree. nor aim at it with a th ing, Ilor eat {rom coll ected froitJ, except In cue of neceuity,
It is permissiblt!'or

In .hart, a pencn pusing by a garden is allowed to rat fonn provided that tilt following conditions are fulr.Jled:
first: I1 mU$! haw ~ithrr. frnce OOr a guard.

j"

froilS

Seoond: The {ruilS mwt ~ ei ther stiD on the trttt: or faIkn 10 the ground but nor: ,oUec:led,

Third: He must not climb I trct, but ju~t pick tht fruili without ascending,

Oapt.:r 1: Food
Fou rth: H~ mUM ~rry nothing of it with him. Fifth : He mu~t be in need of ,uch food as 51ipulltfii by the majority of Muslim scholars. Acco rdi ngly, if any of the above-mentioned co ndition, is not fulfillnl, one 11 not permitted to eat from such. garden.

A MuiJim should '-t. Mud im tra.vrIing through vill.ga., for a day and I night_HoweYff, in towns prO'liding accommodation, it 11 not obl igatory btta~ IUWJrutlS and holds c:an be found thtrrin .so Ihe tnvder is not in need of being hOited. in contrut to the cue in villages and dI'$('rli. Hosting a Mu$l.im passenger i, a duty according to the badhh in which the Prophet (PBUH) says:
'Whoew:r ""l;e~es in Allah and tlu La,t Day should ~erw: his guest pntrousJy by gi~ing him his n!WIlrd." They (the Comp<!nionJ) IUlctd. 'What is his mvard. 0 Me~nga of AUahf" Ht (PBUH ) ""id, "(To bt mtm/l illtd gtlltrolLdy ) joT" d"l and a IIlghl."
(~lalnl by AI- Bukhir1 and Muslim)"

The badfrh provu Ihat hosting a puscngc:r is. dUly a$ indiC*led in tht phrase ' Wh(l<'Yt'T btUt""s in Alwh .... wh ich indicatn that one', trut faith is dependent on showing hospitality to on.5 guest. It WK, also rdatnl in the Two 1l SIlb.lb.s that the M..sse nger of Allah (PBU H) soid:

'1f )'Ou slay with some Pf"p/e and Iht)' enttrlain )'0 11 a$ Ihey $lwuld
d" joT a guesl. Ilcupt their hospit/llily. but if lht)' do nol. l/lU fro m
them Iht righl of the guw Ihey $houlJ offrr."'" The story of Allah', Prophet Ibrihlm (Abraham) (PBUH) with his guests. wh ich dlows how ht entenlilled them with a calf. indicattltbat hospita.lity is a dtaracteristi( of the religion of the Prophcllbrlh!m (PUBH). It al50 5hows that one should off~r th e guc5U more than what on~ usually Cat5. This i5 one oflhe vlrtue$ and noble m.rill of this r.liglon which remalnnl th roughout lbrjhirn's offspring until Islam ,am., Strtl$<l tMm a nd urg.d Mu.sIilDllto adhn-c to th.m. More-cwer. isbm has cntitlnl th. wayfarer a right among the ten due rights mentiolled in the noble Qur'anic Vtrse in which Allah, the Almighty, says:

W'onhip ADaI! ..mI ..uod.. ..."lIing ...,,11 Him, ..nd 10 p4~1I1I d o pod, ouullo ~lati-' O?haou, IN naJ)" IIIe Mar lIdth""r. Iht Ift/p/Jot forth,r ..WIlY. Ill. (Om,..,lIiOlf at ),our $/lIt. Ih, ""'wI~r. :
(Qur'an: An-Nid', 36)

,e

XI FOOD

Allah, the Exalted, also saY'"

"So giw IM rtwtiYe Iou rig/U, ... well ~J tht nttdy IUId tht trirVder...(Qur'An: Ar-Riim: 38)
rdigion of Islam has also assignNl a right in the Zak~h, among the eight categories that are entitled to reive the Zakah. to be paid to the wayfarer. The wayfarer meant here is the traveler who cannot afford to cont inue on his journey or return home.
Th~

All praises be to Allah for this

~rfed religion and that wise and Divine

Law which is grantNl to Muslims as a guidance and mercy.

Endnotes
1 ~ [bn T>ymiyah, M~j"'~ u/F6,dwd (7144) and M. /k}"iy<lnlt AI.Fiqhiy,.,t. p. 464. 2 Ad . Dar.lqujnl (4350) (41109J ,nd AIa.yhaql (19716 ) [1 0/1 1[. 3 ~ Ih. fOOlnOl. in .... ,.Rnwd MMurbi [7/417[ . 4 AIBukhir! (4219) (7/60I [ and Mu.lim (4997) [7195 1 S ~ Ih. fDO'n"'. in Ar.Rnwd MMurbi [71418 [. 6 AJ-Bukh1r! (5530) (91812)aOO Muslim (4967) [7184 [. 7 ~ A' Tirmidhl (17%) (412S2 J. 8 ~ /"Mm M. MuWD<Jqi in (21ll6J. (-t/ 140.380). 9 Mu'~m (4970) PIIIS[, AbU [)jwild (3803) [411031 and Ibn Ml.j,h (32};!) 1315821 . I 0 ~ 1"I<1m AIMu"""l'li 1" (l/II ~), (4IlSCI). I1 s.. Ibn T.ymiyohs Maimw .,/F <1ldwd ( 111690). 12 Mldlah: A t. ,m .... f."ing to .nim." Ih.t .ot intpuriti . 13 AtTinnidhi (1829) [412701 and Um Ml jah (1 189) [3/5601,!ON .Iso Abit Di wild (l81 I) (41106J and A n Nw"! (4459) [412751. 14 Ab.:. Dtwild (381 J ) (41106) . "d An N2d' (4459) 14/275)

151h. C!ilUion in tb is regard i, h.ing suII' thl l the Inimal"s blood and flesh hive be<:ome
1"' an.r feeding (tn pu food, thus. the f'<, iod may diffe, from on ."imallO anolh .. ocoordinog to it< body. 16 Se< ["Mm AI.Muwu</<li"ln OIW). 17 Mu.lint (1251) 1315 11. 18 Individual duty: A rdip,i"'" d uty wl>osc obligation .xtends to every Muslim. 19 ~ AI./khtiydnlt (p. -165). 20 ~ loo AbO Shayb.oh ( I061 ~) [214 N I,OO AI Rayhaq i (7792) (41308]: '"'""" Ab<l Dl wi1d (1657) 1212061. [00 Ab.:. Shaybah (10617) (21402 1_00 AI llayhaql (17119) 1413081. 21 AI_BukhJ.r1 (60 19) [1015<17) ond Muslim (44SS) (61256) . 22 Th< T"" ~1I111s: The "fW(J Auth.nti< Rook< of AI"ukh~ rI and Muolim. 23 AI BoW,1 (2-161) [51134] and Mu.tim (449 1) 1612511.

CHAPTER

Slaughtering
Slaughtering land animals according to the rules of the Sharl 'alt (Islamic Law) is a prerequisite 10 make an animal's meat lawful to be eaten; otherwise. il will be considered a dead animal whose meat is prohibited. for this reaS<Jn, studying the rules of slaughtering and whatever is related 10 it has become of great impartance. Faqihs (may Allah have mercy on them) have defined slaughtering as: slaying a land animal lawful to be eaten by cutting it. th roat and erophagus, or wounding the animal that cannot be slaughtered. for being wild for instanu.. Allah, the Exalted, says:
Prohil1ited 10 you art dead an/mals, blood. the fle.h of .wine, and that ",hich Iuu Men dd;calw ta ather than AIl..h, and {those animalsj killed by stnmgling or by a v/o/ellt blow or I>y a headlcmK fall or by the goring af horns, and th(lst from which 0 wild all/mal hlU eaUII, exupt what YOII {an ablt ta} sWIIghter [before its death/ . ." (Qur'! n: AIM!'idah: 3)

XI FOOD

That i. to .ay, the animal that can be .laughtertd I>.fo"" it dies is deemed lawful. It does not matter whether the ~ct of slaughtering is a second .tep after first injuring the animal or it is the fint step. Slaughtering is obl igatory and the meat of the animal is not considered lawful un less it is sJaugh tertd according to the rulings of Sltarlah. Thecefo"" the animal that is not slaughtered in such a way is considered dead and the", is a consensus among Muslim scholars that the dead an imals' meat is prohibited to I>. eaten except in case of necessity. Allah. the Exalted. saY'"

"Prohilnted to you a"" detul animal, ...~

(Qur~n: A1- M~idah:

3)

Loc usts. fish. and all sea animals are lawful to be eaten without slaughtering. for the dead animals of th e sea are lawful. This is based on the blldlth narrated by Ibn 'Umar who narrated that the Messenger of Allah (PBUH) said:

Two delld (Ilnimals) and two (organs containing) blood h~vt bun m~delawfull~ us (Musiims). The lwod~ad (animtlls) are the whale and th~ locust, Ilnd the two (0'X~nJ containing) blood are the liver and the splten:
(Rdated by [mAm Abmad and other compilers of Hadith)'. The Prophet (PBUH) al,o said ..,garding sea animals:
"It (the se~) is that w/wJt water is pure and whose dead (the fish) are lawful (to eal):'
~nimals

There are Four Conditions for Lawful Slaughtering

Tbe First Condition: The slaughte..,r must I>. legally competent. That is. the on e who performs slaughtering must I>. sane, profess ing a heavenly religion. i.e., a Muslim or a person belonging to the People of the Scripture. Thus. whatever is slaughtered by an insane, a drunk Of a chi ld under the age of disc""tion. is judged as unlawful. du e to th e invalidity of the intention of slaughtering from any of such person! for their lack of disc""tion. It is also unlawful to eat what is slaughtered by an idolater. a Magus. an apostate. or the one who ""sorts to graveyards and seeks the help ofth. dead. beeause it is considered a sort of major polytheism. Neverthdess, th e slaughtering done by di.believers. who belong to the People of the Scripture, Jews and Christians. is deemed lawful. In thi' regard, Allah. Exalted he He. says:

Chapter 2: Slaugh t<ring

~... /Uld

tm foo d ofthost who 1Vtrt' giptn the Scripture i.

'"

f w you ... ~

lawful (Qurln: AIMHdah: 5)

That is to say, Allah has allowed us, Muslims. to ~at whatever is slaughtered by a Jewor a Christian. It is worth mentioning that there is a co~nsw among Muslim scholars regarding this matter. Im1m AIBukhlri (may Allah have mercy on him) related that Ibn . Abb4 (may Allah be pleased with him) said: "The food meant in the t rf t is their slaughtered animals:' It is also indicated in the meaning of the aforementioned verse that it is unlawful to eat what is slaughtered by a disbeliever who dm:. not belong to the People of the Scripture, which is an unanimously agreed upon opinion. It is p<:rmitted to eat the animals slaughtered by the disbeliever who belongs to the People of the Scripture in contrast to those slaughtered by other disbelievers. This is because the P~ople of th~ Scripture, Jews and Christians. believe in the prohibition of slaughtering animal. for other than Allah and alro beii(ve in the proh ibit ion of dead animal., based on the teachings of their Prophet., Contrarily. other disbelievers may slaughter animals for the sake of idols and regard the dead animals as lawful The Sn:ond Condition: Availability of a tool for .laughtering. Slaughtu ing is p<:rmitted with any sharp~dged tool that causes blood to gush. This tool may be made nfiron, stone or other materials. However. it is unlawful to slaugh!", an animal using a tooth or a claw as a tool. This is according to the /ldith in which the Prophet (PBUH) said: and if Ihe Nam e of Allah is mentioned, eat (of the slaughtered animal); but do not slaughttr using a toorh or a nail: (Related by AI-Bukhari and Muslim)' With regard to this Iladllh. Imlm Ibnul-Qayyim (may Allah have mercy on him) says: "The hadith warll.l us not to slnughttr using a bon e, eilher becnuse some I"me. may be impure, or becau,," slaughtering with" boM e dtfil~ it ,,"d Ihus Ihe />tlitllCn among Iht jinn cannol make u,," of it'. Th. lladith ~Iso confirms this ~s ht (PBUH) $Slid afttr that, '" .1 willlell you why: As for Ih . toolh, it is 11 bone, and liS for the nllil, il is Ihe knife used by th" Ethiopian.: Th" Iladith declare. thaJ it is no/lawful to s1aughler U$;ng the tooth d. it;'" bone, and that il

"If the slaughtering tool causes blood 10 gush

Xl HX>D

is unl~wfullO slaughter using nails as they wert used as kniws for slaughttring by the Ethiopi~ns (who were disbelievm)."
The Third Condition: Cutting the throat which is the respiratory track. the esophagu~, which is the passage offood and drink, and one of the two jugular veins. Shaykhul_bHlm Ibn To.ymiyah (may Allah have mercy on him) says:

"In slaughtfring. the tsophagus. the throat and the two jugular wins have to ~ cuI. Yet, according to the !iOundtst opinion, cutting thrte out of Ihtse four sliII make< the slaughtering lawful. whether the throat is one of Ihtst three ports or not, for cutting the two jugular veins is more ~fficient than cutting the throat and mOrt sufficient to cause the blood to gush"'
Concerning the way of .laughtering camels, it is an act of the Sunnah (Prophetic Tradition) to stab the camel by an e<iged tool at the upper part of it.! chest, whereas other animals are slaughtered by cutt ing the throat. The reason behind specifying such p"~rticular parts in the body of the animal to be cut while slaughtering is to ensure the blood gushes out. Such spots are the junction of veins. Therefore, this wiU make the slaughtering faster, the meat more delicious, and this will cau~ leSoS pain to the iJaughtered animal. The Prophet (PBUH) says:

When you slaughter, slaughter in a good way."'

With regard to those animals that the slaught~ro r cannnt manage to ,daughter at the aforementioned spot~, as in game, wild cattle, an imals falling into a well and the Hke, they can be slaughtered by injuring the an imal at any spot of its hody and this will be enough for slaughtering the animal according to the Sharlah. This is illumated in the /lad/th narrated by Riift (may Allah be plea=:! with him) that says:
... One of the camels once ran QWay, so a mQnshot it with QII arrow Ihat stoppfd it. Thereupon, the Messenger ofAllah (PBUH)Mid, 'if all)' allimal TUns away from yo~, treQt it ill this way {i.e.. shoot il with an arrow}." "

(Rdated by AI_Bukh~rl and Muslim) Other badiths indicting the same meaning have been narrated 011 the authority of All Ibn Abii Illib, Ibn Mas"ud, Ibn Umar, Ibn 'AbMs and . A'ishah (may Allah be pleased with them all) " .

Ch.p'" 2: Sbugh'ing The animals injured by strangling. by a violen t blow. by a hndlong fall, or by the gming of horns. and those from which a wild animal has eaten. can br lawful provided that the animal is caught whik still ali"" and slaughtered brfore it dies. This is based on a noble verse:
"Prohibited to you are dwd animall. blood. the-fluh of swine, and that which has betn dt dic,attd to other than Allah, ,...d {tho.e a"imals] killed by strangling or by a violent blow or fry a huuJ/ongfall or by the goring of /w".. , and thOK from ...hleh 11 wild animal Juu I!'a/ el'!, exupt "'hat)'01l {are abll to] slaught!!r (Qur'~n: Al -M~'idah: 3) {before its dellth]....

That is. when (he animal i, slaughtered before it dies. it is deemed lawful to bt eaten. The animal killed by strangling is the animal strangled bya ropt or the like wrapptd around it. neck:. The animal killed by violent blow is (he animal that is stricken by violent blow causing it to die. The animal killed from a height

by a headlong fall is the animal that has fallen

Th e animal killed by the goring of horns is (he animal that is butted by another animal and consequently dies. The animal from which a wild animal has eaten is the animal that is hunted and killed by a wild beast such as the wolf and the like. In consideration of (he lawfuln ess of slaughtering ~uch previously mentioned kinds. Shaykhl-Isli m Ibn Taymiyah (may Allah have mercy on him) saY":

... If such an animal i laughtered ,md Ihe normal n:d blood, which
is not the blood of a dead a"imal. gl1lhed oul of il. Ihen il i. dumed
lawful 10 t al il. mont, evtt! if the animal doe. nol mow its fon:limb or hind limb Or blink or wove its tail or tht like".

The Fourth Condition: The s1aughtere r must say tasmi}"'h" while his hand is doi ng the act of slaughtering. as Allah, the Almighty, saY":
-A"d do "0' eat oflhat upon which tlu Name of Allah has "al ""en men/ian. d,far /"dud, it is grave di.abediertc...." (Qur'An: AI-An '~m: 121)

XI FOOD

Imlm Ibnul-Qayyim says:

"Thel'f' is no doubt that uttering the Name of Allah while slaught"jng the animal purifies it and drives Satan aWlly from tlu: sl~ughtel'f'r ~nd the sl~ughte",d ~"im~l. On the contrary, if Ihjj condition is vjol~ted, S~I~n will bu d the s!<lughlerer ~nd the slaughtered ~nim~1 and will ,~use fou/nw 10 Ihe ~nimaL The Prophet (PBUH) ustd to mention the N~me of AII~h when s!<lughtt ring. MOl'f'Over, the ~foremM tioned noble V<Tl;e indic~tu Ihat the slaughttl'f'd ~nimal is not I~wful to be tUl len if 11.. Name oJ AII~h is not mentioned whm s/aughltrring it, n..,n if flu: sl~ughl"er is a Muslim: "
In addi tion, it is oo nsidored an act of the Sunnah to say takbir {saying, "AIL1hu-Akbar" (Le. All ah is the Greate.t along with mentioning the Name of AUah.

Proprieties of Slaughtering
It is detestable to .laughter with a blunt tool, as illustrated in the had!th of th~ Prophet (PBUH) in whim he says:

"Everyone of yo u should sh~rpen his knife, and It! the slaughtered " "im,,1 die without causing il suffering: "
It i, detestable to sharpen the knife, the slaughtering tool while being seen

by the animal . This is based on the hadith related by Imlm Ahmad as the Messenger of AHah {PBUH} ordered that knives should be shar~ned and that they {knives} should be hidden from the animals " . It is detestable to turn the animal to a direction other than that of the qiblah" . It is detestable to break the .nima!". neck or skin it before its body be<:omes cool.
It is an act of the Sunn"h to slaughtu the camel while it is in the stand ing position and its left forel imb is shackled; and to slaughter the cow or the sheep while it is lying down on its left sid e. And Allah knows best.

'"
Endnotes
I AIlmad (5723) 12/97J and [bn Mo1jah (3218) {3IS76] . 2 AM D' w6d (83) 11 1521, AI-l1rmidht (6\1) [111001. AnNw') (59) [ 115)1 and Ibn Ml jah (386) [ 112361.

3 ~ AJ-BukMrlI917871.
4 AIBLli:b l rl (2488) [51 162 ) and Mu'~m (5065) [71124 1.

5 B ~ . r< the food ofth. I><j;~... <>f lh. jiIm .. ".t.d in nt h" Proph.,ic lIadi,h.. 6 s... [,ldm AlMuwaqqi 'In (~/l62) _ 7 s... AI-lkhlif'l"'l (468) ,
S Mu.lim ( ! 955). 9 A1-BillIlr1 (5065) 17/124 10nd MwJim (3075) l6In6]. 10 Se< AlBukMrl (9089 1.

11 See A!Jkhrif'!rdr p. 468. 12 r..,miyah: Saying "Bi,miU<lh' (i.e., In 11", NartH' of Allah). 13 s... the footnote of Ar.R.l"1i AIMu rbi ]714SOI
14 hluolim (1955). 15 Abm.d (!;8M) Ill 1081 a nd Ibn Mljoh (3 I 72) PIS>!] 16 Th. qibl.n: lh. dirTion of prayer, namely toward. th. Ka .~.

CHAPTER

Hunting
Hunting means chasing and killing a lawful wild animal that ,annot
~

grasPI'd easily for slaughtering.

The Islamic ruling Jl('rtailling to hunting dictate. that it is lawful to hunt an animal for food; however, if il is don e only for fun or sport, th en it is detestable. Likew~, it is considered prohibited if any harm is caused 10 people's pmpertks or farms as a result of hunting. The legal evidence of its legitimacy in cases

other than the last one is 3S follow.:

Allah, Exalted k He, ""Y" ~ But when you corn. out ojihnlm, then )'('u mu)'} "u"I .. ~

(Qur'an: Al-Ml'idah: 2)
He, the Almighty, also says:

[game caught by] what you ""vt tra,"ed of h..nt'ng ,minuili which you IT<I'" as AI/M hlU /aught )'<I'" Sol 'flt "f what

~ .alld

'" 0'000

tMr CIIfdJ for ,.,11, alUl mmtio.. t~ N.. tfle ofAIWr of "PO" It. ~
(Qur'ln: AI- M"idah: 4)
MortOvu, the Prophet (PBUH) says;

of/you Id /oou your trAilttd dog (for hurtring) and mention AI/ahs
Nllme (while nkas;ng it). the" ro'" may NI (the game):

(Rdalrd by /J6\JWrt and Mmlim)'

The hunted animal, the game, has dther one of two ases after being chased and caught:
The First State: It may be caught alive. [n Juch a case, the animal mu.!! be slaugh ler<:d aceo rd i ng to th e ruin of legal ~ au gluering - is previously explained in the ch apt. tof $laughtering _ and it is not ROOU ro lawful just by hunting.
The Sond Sla le : The game may be caugh t killed Or caught while unstably al~. In such cases. il is only consideud lawful if the fol lowing conditions al"C' fulfi lled:

The First Condition: The hunter mu$! fulftll the conditions of Ihe
competent $Iaughter<:r. namely, th e Ont who is legally acpled to slau ghtn. This is because th~ hunter aSSumes the role of the slaughterer in this cue. Th e~fore, the hunter must be legally competent by lxing une, Musli m or belongi ng to the People of the Scriptu~ (Christians or Jews). To illmlRte, it is not la...ful to eat what is hunted by an insan.e or a druo~n pcl$On. for thei.lad of disc:1dion. Similarly. iI is not lawful 1 eal what i$ hunted by al1lllgw., an idolatrl", or other d~rs. just 0 loo, Iheir slaughtered animals. The Second CondItion: There must be a tool used in hunting. which is O of the following two kinds, ne Firsl: A ,ha. pt"ned lOO), wh ieh must be )il: I he one used for sI. ught"ing in order to caU&e blood to be shed. Momwer. it must be neither I IOOIh nor a fmgernail, and it must wound the an imal with its edge not by lu wei&ht ThU$,. iflhe 1001 wlvreby Ihr game iI kiiled is blunt li~ a pdlble, a staff snare, a net or a piece o(iron , Ihr hunted animal is considerN unlawful, escept those hunt...! by gun bulleU. This is because thili 1001 possesses a d riving force Ihat pierces and Cl U lhe blood to gu"" oul seS the SIJTI e as the shlrp tool does or even mo re.

'"
Second: P~dalory animals, such as birds of prey and hunting dogs.
The game klUed by s uch animals is dumed lawful provided that they

are trained, wheth er they hunt using their fangs, like dogs, Or their claws, like birds. This is according to the noble verse in which Allah,
Exilled be He, says:
~..... nd

(gtmlt ,,~uglrt by) what }'Oil haw fr"ined of I!lmling

allirruUs which Y"" fTai" a.o Iuu taught you. So t ilt of what they cald, few yo", and mentWn tlte N{I~ of Allah upon It " (Qur'in: Al Ma'idah: 4)
The phrase: ". which you fTai" a.o AIIDh hlls taught you . ind icates

Al,,,"

that you have to train and luch them the rul",. of catching the game out ofth .. knowledge Allah has gran ted you. Training and teaching a predatory bird or animal mtans that it should ob<:y orders; ifit is set off for hunting. it ~s, and if it is summoned, it complies., and when it sdus th e gam e, it keeps it for its master until he reaches the hunted an imal, and that it does not catch the game for itself.

The Third Condition, To aim or ..,t off the means, or the tool, of hunting while having the intentio n of hunting. This is based on the badith in which the Prophet (PBUH) says:

let loose your trained dog (for hunting) and mention Allah"s Name (while T t/easing it), then you may eat (the game)."
(Rdated by AIBukhAri and Muslim) The /iadlth indicates Ihat setling off a hunling bird or animal has the same cond itions of slaughtering. That is. One must have the intention of hunting; accordingly, if the tool fall. from the hunter's hand and kill. a game, this gam e is considered unlawful beeau.., of the ab..,nce of intention. Likewi.." if a hound sets off on its own and kills a gam e, the game is considered unla wful for the sam e reason. However, if someone shoots al a certain game and this shot hits more than one game, all are render! lawfuJ beeause Ihe hunler basically had the intention of hunting. The Fourth Condition: The hunter must pmnouoce IlUmiyah while aiming Ihe arrow or ..,!ting off t he predatory hum ing animal or bird as illustrated in !.he noble ve~:

"If you

bu n mentiontd.. ."

H And do 1101,..,1 afllull "pall which Ihe Name of Allah haJ ll al (Q ur'.in: AI An ' 1m: 12 1)

""

Xl FOOD

And the other ve= in which Allah, the Almighty, saY'"

-. So eat of what they catch/or you, and mmtioll the Name of AUah upon it . ." (Qurln: AI-M1'idah: 4)

Funhermort, the Prophet (PBUH) says:

"If you

let loose your trained dog (jor hunting) and mm/ion A/Jahs

Name (while rdea,ing it). then you may eat (thegllme)."

(Related by AI-BukHrl and Muslim)

According 10 thf previously mentioned noble verse and hadirk, if Allah\; Name is nOl mentioned while hu nting (i.e. if th e hunter does
nOI say lasmiyoh). the game i. not lawfuL

Along with mentioning tasmiyah, it is an act of the Sunnah to glorify Allah by pronouncing wkblr while hunting a game, just like th e case with slaughtering. Thi. is because when slaughtering, the Prophet
(PBUH) u..,d to say:

"BismilMh (1n the Name of Allah) walldhu Akbar (and Allah is the
Gremest).,.1

Two Warnings
prohibited: It is forbidd~n for a muarim ' \0 kill the land game, hunt it or help in hunting it by giving guidance, a gesture or something el se. This is basN! on the noble verse in which Allah, the Almighty, says:
"0 you who h,,"" believed, do not kill g"me while you ",.../" tM state o/illrdm." (Qur'~n: AI -Mfidah: 95)

The First Waming: There are certain cases in which hunling is

It is also prohibi t~d for the mubrim to eal from the game that he has hunted, helped in hunting, or that has been hunted for him; Allah, Exalted be He, says:
but forbidden to you is game from Ihe lalld <I, /ong <IS you are i" the sklte 01 ihrdm. And le<l' .... II<1h to Whom you will be g<lthe,...d." (Qur 'An: AI-Ma'idah: 96)
H

In addition, according to th e conse nsus of Muslim scholars, it is prohibited for a muhrim or a non-mulJrim to hunt the game of Mecca. With Il'spt to Ihis.llrn A.bM! (may Allah be pl eased with him) narrated:

"On the Day of the Conque,t of Mecw, the Mwtn~r of A.I/ah (PBUH) ...id, :""11";' hllS made ,his IOwn (j.e.. Mecca) a sanctu"ry

OuP"" 3, Hun'ing

671

:linee th~ day He creattd the Hea vens and the Earth, and it will remain a .sanctuary by virtut of the ICInctity AUah ha:l bestowd On it until the Day of Resurrection .. , Its trees mwt not baut, nOr mu" its gam t be chased, nor mu,t ifs vegetation or grass be uprooted .. : -'
The Second Warning: It is prohibited to possess a dog for reasons oth er than those permitted by the Messenger of Allah (PBUH), and they are one of three CaSCS: hunting, guarding a livestock or guarding a plantation. The Prophet (PBUH) said:

"He who heps 11 dog except one mellnl for walching a Mrd, jor hunting, or for watching fields, will/ose one qlr~1 (i. e.. a great amount) of his reward every day."'
(Related by AI-BukMrl and Muslim)
Yet, some peopl e care nothing for such a threat and own dogs for purposes oth er than these three permitted by the Messenger of Allah (PBUH), they m p dogs just fm showiness and imitation of the disbeli""'.... They pay no attention to the loss. of rewards resulting from what they do, though if they were to lose anything of their worldly benefits, they would not endure it. There is neither might nOr power save in Allah! In this connection, the Prophet (PBUH) says:

"IIngds (of Mercy) do not enler a house wherein there is a dog or a picture of Cl /iYingcreMure (a human being or an animal),'"
So, a Muslim mnst fear his Lord and not wrong himself by committing
such sins and deprive himself from rewards. Indeed, Allah, Alone, is the One Who"" Help is sought.

Endnotes
I Al_Bukldr! (5484) (9/756] a nd MU>Jim (4949) 17175]. 2 Al-Bw:MrI (5565) [IOJ29] and Mrnlim (5060) [7/l 21). 3 Muhrim: 1M one in 0 "at< of rimal con secro,ion for Hiljj (Pilgrim.g.) or ' UmraJ.
(Less" Pilgrim,,!!'), 4 Al-BukMrl (1834) (4/61) and Muslim (J289) [511271. S AJ-Bul<h~rI (2322) [5181 . nd Muslim (4007) [S/4S4)_ 6 AJ_Bukhirl (3225) (6J315[ and Muslim (548 I) [71410] ,

XII: OATHSAND

.'.,

CHAPTER

Oaths

An oath is a solemn, formal declaration to fulfill a pledge, to do or refrain

from doing something. or to confirm that something is true, often calling on a

sao:;rw object as witness. An oath has a certain way to ~ taken.

An oath that requires rxpiat ion if not fulfilled is that taken by ulling on the Name of Allah or on one of His Attributes, such as swearing "by Allah; "by th e Face of Allah,~ "by His Magnificence, Uby His Glory,K"by His Sublimity," "by His Power; "by His Mercy," "by His Covenant," "by His Will,
'by th e Q ur'in; . .. elc.
It is prohibited to take an oath by calling on other than Allab, as it is

considered an act of polytheism, for the Prophet (PBUH) says:

"If Ont

has /0 take an oath, "n" mwt ,,"..ar by Allah or otherwi$e

kup quiet."

(Related by Al -Bukh1r! and Muslim)'

."
Also. he (PBUH) AY" Wlroeva SM'Qn 17)' othe~ th"n disbelief or polytheism."'
Furthcrmo~.

XII DArnS AND VOWS

A~h is

committing all act of

the Prophet (P IlUH) says:

"Ht WM ~arJ by AI-Amol",'III ' is 110/ onc follow Iht true P'llhlflll)' of Mll5lims): (Rdalftl. by AbQ OlwGdj '

if us (i.e. ht doe 110/

n.c, afull'mmtionw b<ulillrs . Iatc the prohibition of $Wnring by QlMr

than Allah and that it ili cons.idCTed an act of polytheism. Examples of I Uch unlawful oaths are Iwuring. "By the Prophd," 'By your life,' "By A I-Am,!""h, "By the Ka' bah; Or the like. Ibn . AMul-Ban said, "This (i.t. the prohibition of SWNrjng by othtr th"n AI/ah) is ",,,anjmo~sl)' "grew IlfXJ'l:
Sheikh Taqiyyuddln Ibn Taymiyah said:
"It .. prohibirtd 10 Iilkt dll oo/h by olh" Ilu," It/llIh, "nd this is flu opinion.uud Ilpon in tht Jjpnbllll ScJrool. MOmlm', Ilm Mtu ' iuJ and ad!ns 1t'n\'.' quoud <U Ulying. 'I would n:l1"", l4ie a f~ oath by

Allll" llull'! takt ~ true Il<4rlr &y DIll"

rh,," Mlah: .'

CcImmcnting on the aforementioned Taymlyah said:

st~tement

of Ibn Ma.s Od.lbn

"Thi. is bft:"uu Iht vir/lit of monothrism i$ grratv than I~ virtut of lru.thflllnns. "nd IM sin of ttlling a lit is not so grow oU rhat "1 poIythtism...
EIpiation for brn.kinS

.n sworn by the !).Ith

N~IM of Allah

is obligatory if

the following thrtt conditions are fulrllled: First: An ~th mu.st be bound with int(nUon 50 IU 10 entail expiation if broken. That is. one mu.st int end the oath to do a certain possible deed in the future. Allah. Euhed be He. "'r':
""a" ",ill "01 Imf'OU bla ...t u.po" you. fo r whal U mN"ing/tu I" your 0IItJu, hI Ht wllllmpou ""'mt ..pon yo.. for {'"-kinK! you Intnul", o/OfItJu. (Qurln: A1 -M.fidah: 89)

.mm

l1w: VffK ind icalelllh.t apiation is nO obligatory unless the oath is I bound with intenlion.
'Therefore, an oath is not validly effected unJe$S I1 rneTS to somdhing in the future. not in the pa5i. :ilS it is impossible to in tend 10 do or refrain

Chtptcr I: 0. ...

677

from doing something in the p "'l. However, if a ~rson deliberately tama false oath that he had done something in the past but in fact he had not for aample, $lKh an o ath is called "an irnmtning Wse oath," as it "immerse&" the one whooommiU it into .inning and, hence, into the Hellfire, Such ~rjury cannot be upiated for, as It is considered too gnve to be expIated for. Furthcrmo,.." it is regarded as onc of the major sins.

Ifone utters an oath unintmtionaUyduc to a fon:eofhabil,lS in sayin(!. "No, by Allah," or "Yes. by A!lah," such are not con~idered oaths bound
with intention, but muningl= words. Hence, no expiation is caUed for in this~, fur Allah, Exalt-ed be He, $;I}""

....."4h willllot impou "'''me upon JOI4 for wIIat iJ mUlllllg/a. in fOIU'HlIu. .. (Qurln: AI Mi'ldah; 89)
In addition, .1:ishah. the prophet's wife, (may Allah be pltaiCd with her) nerrated that the Prophet (PBUH) said regarding a meaningless oath:

It i$ tht IIslIal talk. of <l m<ln 01 hi$ homt, (slIch os) 'No. by Allah: or 'YQ, by Allah..'
(Rebled by AbQ DlwUdl' Likewise, if one takes an oath concerning something believing it to be true but later it proves to be untrue,luch an unfulfil led oath does not entail expiation. Shaylthul-b lJ.m Ibn Taymiyah said:

'The samt ruling applies 10 __ ring mnting JOtndhillg ill tIrt fulll.Tt bdieving it will hap~n, IU wken ont tak.d all oath to do somdhillg,.l>dkving thal alloth" penon will do it fo r him, and Ihal penon d~J not."
Second: An oath must be takrn voluntarily so u to (n taU expiation if broktn. Thus, if I ptl'$Ol'I is foruc:l to lake an oath, his oath is not validJy effected. Thil is because the Prophet (PBUH jlays:

"My lIat;on is ptlrdoned fo r what Ih ey commit by mistak.e, Ollt of jorgetju/neJS, and fo r what they wen compelled to do."
The flpdilh states that breaking an oath one has been compelled to takt is pardoned. Third: An oath entllll expiation if it I1 broken, such as doi.ng what ont has sworn not to do or n:fralnlng from whit one ha. sworn 10 do, Nevertheless, if one b,..,IlQ one's oath out of forgetfulness or compulsion, no u pilltion is a!led for, be<;ause, in such I case, ont is

67.

XJ I Oo\ll-ISAND VOWS

not COI\SidefW IO have (ommiufd a si n. Thi$ i$ purmant lo of the Prophet (PBUH) that JUte:

th~

/itulitlo

' My I'Illnol'l is ptlrriOflN for . , they com mit",. mistQk, 0111 fo~tfulnQ.S, Ilnd for what lilt)' WC're (om~lkd 10 cia'"

of

Somt'limes the One taking an oath add! a conditional phrase as an integra l pan of the wording of the oath. as in saying. "By Allah. I sh, n do !ID and so. if Allah will s." In this CIISI:. if o~ fails 10 fulfill one's oath. one i5 nol consideud to h a~ committw J>Crjury. as Ions as the conditiona l phrase was an integral pan of the oath. The Prophet (PBUH) $lid, inc/udts 'if Allah wills' in hi5 O/l/h, ht will 1101 bt nmJidertd 1 hove rommitttd !,"jllry if ht d oes brtOk his O/llh.~ 0 (Relattd by ImIm Abnwl. and oth<rcornpiie'rs of U<ldilh )"

"If onyont

Hownrr, ifthc phl'Ul: "if Allah wi lls" is not melOntto be conditional in the oath, but only to suk IIllahs bles&ing by mentioning His Name.lhe oath will entail expiation if broken. Liktwise. if this conditional phl'Ul:. namdy - if Allah wi ll$," 1 sepan ted from tbe utterance of tbe oath by a pause for no reason, 5 Ih il conditional phnse does not sp",e one th e e~pialion for breaking ",ch an oath. However. SOme other scholars maintain that tbe phra5e, -if Allah wills," spares ex piation, even if it i. utlered a whil e after the utterance of the oalh, or even iftbe one laking the oath utlers il o nly after being urged by others to do so. Shaykhul b lim Ibn Taymiyah commented o n tbc lattt ' opinion saying, ...<llId this is Iht sou"d opillion".
Breakin, an oalh m ay be obIip lory. prohibi~td or pc m,issible. To ilIustrale. an Oll~ h must be broktn if il is taken to abandon an obligation, as wMn one lailts an oath to st:Ve. the lies of kinship. Abo. an oath must be b~n if il is taken to do :iOmrthing prohibi~ed, such U sweilringlo drink an akollolic d rink. In such cases, CM must break onls ollh Ind expiale for il. It is probibited to break an oalh ifit II la ken 1 abandon a prohibited deed 0 or 1 do an obIigatoryont. [n w,b a C1l~, th( pcnon hu 1 fulflU his oath and 0 0 it is impermiss ible 10 buak it. However, It i. pcrmiSlibie 10 bn:ak an oa lh t.k.n to do something pcm,iibi . Th. Prophet (PBUH) n ys:
Of

abandon

Whentwr Ilak <Ill omh 10:> do somtlhing Illld (lmtr 011) I filld some/hing tlse bdler to do, I do whm I filld bttur <llId upiilte for

(brr<lking) my oolh .... '

TM Prophet (PBUH) a1w Jayt:

taka all oafh /0 do something and (lain' on) finds Sl)m~thj"g elu betttr to do. ht sh ould do what is belMr and tM m

'"

"If onyom

up; att for (brnlking) his oatli.")

Sometill\e'i onc takn an oath to abstain from something permi$.Sible, such as food. drinks, or cLothes. n<:epl' for 0""' wife, as when one swears saying,
"By Allah , I will d m what Allah has permitted p roh ibittd (o r me," or, " By Allah. I will deem !hill food prohibited for me." That permissible Ihing does

nOI become prohibited for one to haw: or use due: 10 iuch an oath. Rmror. it
;1 permissible for onc 10 have il or use it. ~ 0"" in this cue h u to apiate for

breaking onc's ooth. This is ~UK Alla h Exalted be He, Jays:

0 Pmp~, why do you prohibit [yoursd!froml wlwt AI/4h has madt Illw/ul for you, .nkill: the approwlJ of your w/wsr And Allah i, fVrKi~j"gand Mtrriful. AII"h II/u Illrftldy ordQjndfor )'Oil (Muslim. ) the dWl/tuna" ofyourO<llh . (Qur'h: AtTahrim: 1-2)
tJ~n

The word "disKll\llion" here rer.. rs 10 the u pial ion for braking a n oath to prohibit for on*,f &OOlething made lawful by Allah.

In case a man takes an oath to abstain from having sexual intercourse with his wife, it is conside rw :;hdr" that entails a special kind of expiation. as th e expiation (or buaking an oath is insufficient in this case.
In this chapter _ ha"" to point out t M ru ling on taking an oath by ,aUlng on religion other than l$lam, such t i saying, "I will be Jew (or Christian) if r do so and so (or if! d o not do 50 and so).~ Such oaths a~ abominable and strictly prohibilrd. ll is rdakd in the Two ~jlIs that the PropMI (PBU H) says:

"WhOffl'r illtl llticmllliy J~rs folsely fry c.a1ling Oil A migioll nth"" t/wn l.dam (i.e. ~wtflrjng by $<lying tiutl he i$ (I nonMuslim ill cast ht is !tllillg a lit). Ihtn ht is AS ht SIIY' (i.t. lit homes allon.Muslim).""
Accordi ng to the narration of [m~m Ahmad. the Prophet (PBUH) said:

"Wh ,.n any<me lakn an oolh Jtlying that he willlufrufrom I.Jam if M is telling a /i,.), ht willlH! as whal he hnt $(lld (j.t. n non Muslim) if h,. is lyil1g; nnd if M is tt/ling IM truth, he will 1101 mum 10 Islam S4fdy (j.,.. he will tlot n!fum 10 lslamfru from sin or puniJhm,.nt. ..
(i.1.

We invoke Allah 10 prolecl us agai nst evil spch,.,. and 10 mend our worcb, deeds, and intention. Verily, Alla h is Near and Responsive.

""
Endnotes
I AjBukh1r1 (611)8) [I 01634[ and Muslim (U33) [MOlIj.

XII OATHS AND VOWS

2 AbU DlwUd (3251) [313711 and At-Tlrmidhl (1539) [ ~1l10J. 3 Al.Amin,h, in Arabic, carries the me.nings of ho","sty, tru,t, and obedience, It can 0.1"", in this m ntnt, ref<r 10 the obligatory Kt. of worship ordainrd by AlIah,'uch as P,..yer, Pasting.1:1aJj (Pilgrimo&<). "Co
4 Ab6 Dlwild (3253) [3/371].

, . AW~rRimq (15929) [eI%9j iIlld Abil Nu' arm in hi3 boo~ AI-tf;/)'IIh" [712671. 6 See: "AI-Ikhtiy<lrdr AI_Fiqhi)')'Qh" [p_ 4711.
7 Ab6 Dl~ (3254) 1313721. Sa also AjBukhl rt (4612) [813481. 8 See: 'M~j",~ 'ull'<ll~wd' [351324).
9 Ibn Mij.h (2045) [2JSU j and Ad-Dir.oqujni (4.J.06) 1 4/9\1).

10 rb" Mijah (2043) ]21511).

11

Ahmad (8074) [21309], Al-Tirmidh! (1536) ["/lOBI, an d An -Na," (3864) [41381 _Se. also AMI DIW1l.d (3261) [3/374).
(4239) [6/1111 _

12 Al-Bukhlrt (6621) [11/629). Se. also Al -Bukhlr! (6623) [11l6J{)j and Muslim
13 Muslim (4249) [611 17].

14 Zih.lr ;. ~ ..ying (If a hushond to hi< wife. wh<n he wants to abstain from h . ving sex with het. "(Suua lly.) you are (0 me like the ba.:k of my mother," i.e. unlawful to approllch ~xu.lly. That wo typ< of divolU practiced by Arabs in 'he Pro-Islamic ~riod mlgnonnc. (th. Jllhill)')'<lh). 15 AIBukhl rl (1.163) /3/288J and Muolim (300) (WOl].
16 Ahmad (22906) 151355), Abil Dl wiJd (3258) 13/3731. Ibn MIJa h (2100) 12I54 1J.

CHAPTER

Expiation for a Broken Oath

Almighty Allah if SO Mtr(ifuJ 10 H is S<'rvants lh.a.! H t hu declftd expiation

for broken OlIth,. Allah, E.J:.lted be He, says:

Allah hru Illu aJy f w/ned fur y ou (Mu$lims) the diuolutjr of m m.

your OlllhJ,,,

(Qur1n: AI-Tabrtm: 2)

Besides. it Is !'dale.:! in the Two s.ahilIs Ihal the Prophd (P8UH) saf$:

"If you Iou an oolh ro do something and (1nl" 011) you find tkat something tlse ;s hemr Ih,," th~ flNl, th t n do the beller ant and expiatt!oT (,,"airing) you, oot"
l'beu: are option and p riority order oonctm ing the expiation for a broken oath. OM can ebooot brt_ f<ling Itn ndy palple (half. l4 " of food for each). clothing Itn needy !'COpk (each one gets a garment proper 10 be worn during performing prayer), or f",ting a Muslim slave void of defects. If one canrKl! afford any ortht three . fo"",,,,nlioned chok", one b'S10 fast for

'"

XII 0ATI-lS ANDVOWS

Ihm: days. Hence, it is dur that IlK upiation for brc-aking an oath combines both choice and priority order. Choice is between feeding ten needy propl", dothing them, or freeing. Mu slim slave, in the &lime order o f priority, then com~ fasting as the Jut ~hernative. Theevidcnce oflhis ru ling is the Qur'ank ~ne t hat reads: ..... 10 W vcpw/wn 1 .1ht:fu<lilft often tIUd,. peoplr from the '''''<Tap of/hll' whklr you ftud your (0"''') I_Uln ordothing

,h"",..,. ''",,/ruIn, of" d"w but """0 "',,"off/nd (or ..fJord

il) - rhtll

,,/tu, OJ thfff do,.. (;. nquiuJ)...

(Qu r'An: A1-M~'idah: 89)

This vers<: as whole mU DIi that the expiation for breaching an oath bound with intention is ""he fuding of!tlt >lUlIy people from rh .. tlW-Mp of IhQt youfuJ )'ON' (ow .. Jj"mlliU", Le. from the bnt food that onc nonnaUy provides for ones family. "or doll' In: u. ....... with dOlhes pro!"" to be worn during p"rforming pnytr, "'or ,he fr-inf of" ",,>'It"; moll scholars agrH tbat this da~ must be a belimng Muolim.ln addition, Allah .mmga theoroerof the Ihrn optioos of expiation ICcording to e-asinm and if any of th(K options is fulfilled, tht expiation Is unan imously deemed valid. As for the expiatory fasting of th~ three days, the majority of sehola,", stipulate that it mUSt be perfo rmed successively accord ing to . Abdull~h Ibn Ma.s 'Ild's recitation of the .fomentioned verse In which Im: W<lrd -.ucun/"'~ is added; -" . the .. a ftUt ofthrw: JIKCUliu daY' (I. ffllll;ll'd) ... ~ (Qur'~n: A] -MI'idah: g9)

Nowa<by>.. most common people mistakmly bd~ that they h~ t~ choice whelher 1 fMt or to fulfil! any of lhe Ihlft afo~tioned options to 0 npiat-e for thei r broken oaths. Hnw:~, thty fast while they can afford the fding o f Im nttdy prop/e o r clothing them. and this Is nOl a valid expiation for a broken oath, since asting is nOl a valid muns of expiation unless one cannot afford Ih . other , h natlves. So, .very Mu.lim must be I Wf. '" o( this (act .
A Muslim is permitted 1 make the expiation before or after breaking The 0 oath. If it pn!Ced~ perju ry, it is con.;dered dissolution of the oath, and if it succKds perjury, it is co nsidered expillion for the sin of perjury. The emenu of this ruling is a b.lldlth .-dated in Ihe Two Sollrib.s tlutt Il'ads:

"If J'O" I"k.e a n oalh 10 do something "NI ("'In- ",,) you find Ihat
something tlu is better /I,,,n Ihe fiNl. Ihen tU, Iht blttn- om and u pimejor (breaking) your OIlIIt.N

683

This kadith proves that it is lawful to delay expiation until after breaking one's oath; the b.adith related by AbiJ Dlwild reads:
... then make expiation for yuuroalh and do the belter one,"'

The latter hadfth indicates the permissibility of making expiation for an oath before breaking it. Thus, the aforementioned b.adiths state that a Muslim can mah expiation before or after breaking his 0.1th. It is an act of the Sunnah (Prophetic Tradition) and a duty of a Muslim toward his Muslim brother to fulfil! the latter's oath. AI-Bani' Ibn 'Azib (may Allah be plea",d with him) said:

"The Prophet (PBUH) ",joined us to do seven things. He (PBIJH)

.njoined uS ro visit Ihe sick. follow fun eral proassions. pray for a snetU, (/ry saying to him. 'May Ai/ah have mercy on you'). fulfill a Muslims oath, htlp tht oppressed, accept invitations, and propagatt greetings (by saying when meetillg one another, 'Peace be with you.' . '

[fan o.ath i. ref"'ated then broken, om is obliged to expiate for it only once, as it is regarded as on e oath. Similarly, if one breaks an oath tahn to do or ab~tain from doing many thingl (such as saying, "By Allah, I will neither eat, nor drink. nor do so and so;) on., in Case of non fulfillment, has to expiaU, for it only once, as it is considered one oath as well. Nevertheless, if on. takes more than one oath to do or refmin from doing more than one dttd. and then one breaks one's oaths, on e has to expiate for each of the broken oaths_ Sh.ykhul~I.lim Ibll Taym lyah (may Anah have mercy on him) said:
"Co nefr ni ng repeating an oa th befar~ ,-"piatio n. Iherr. arr. three opi"ions, the third of Ihem, which is the prep<mderant on., i. that if an oath pert"ins to one deed. expiating OIlCt is caUed for, otherwise expiatio" a, many times a. the duds 10 which an oath pertains is called for:'

If anyone swears not to do something. then he does it out offorgetfulne!'S, compulsion, or unawareness, it ;s not d.., med f"'rjury, nOr does it entail expiation. This is because Allah. Exalted be He, Slates in the Qur'an that His righteou er""nts invoh Him saying:
"Our Lord, d" not Impo$t or red",n
bla",~

up"n

if we have forgotten (Qur'an: AI-Baqarab: 286)

UJ

Furthermore, a pe""n is not hdd u"pon,ible fur a deed be is forc ed to do, and Allah forgi"". the Muslim nation for the sins they commit by mistah. out of forgetfulness, or while being compelled tn do them.

Xl i OATHSAN DVO'\IVS

Shaykh u.l-b llm Ibn Taymip.h (may Allah

Ila~

ItleKyon him) Aid:

"If Olle SwrIlrJ, OUI of showing ho.pitality or gfntrosity 10 ~l1otlu:r; that the I~tler 'should' ao something, b~Aking s~ ,h all oath is 1101 considered perjury. Yd. ,., ,', comidM'ed pujury if ont rnt~nS tloat the other person 'mUll' do it .....
Notice
Allah, Enlt~ bt. He, AYS in the Ame Ye.w. art"" mmtioning the expiation

fora

b~noath :

... "nJ leap lip your Nlh .. .

(Qur"o; Al M~'idah : 89 )

Therefore. Allah commands us to ke<'p up our oaths., and this means Ihal ont should 001 rush in to taking oalhs nor should he rush 1010 hreaking them nd that broken oaths must ~ expiated for. In gtntral, this noblc~= enjoins the believers to hold oath. in high esteem and not to uooer<:Sl imate them.
11 is important 1 poinl out tha t some pIple resort 1 trid:rry to evade 0 0

fulfilling their oaths., mistab:nly believing that Ihey, thus, ha~ exempted themselves from upiation.nd from the ooosequtnctloftaking <ths. In this rttifd. Ibnul-Qayyi m (may Allah have mercy on him) warned against wd! evasion saying;

Some ~ople make ~nlawful tricks in Drd~r 10 evad~ fulfiUing thrir oaths or expiatingfor b.-raking Ihem_For example. a man may swear nOlIO ta/ a cmain loaf, no/ to livt in a 'main houJt for a ytaT. or nol to tal ","la;" food. alld l/te" M w' Ihe wIwIt Irxif ex,ept few tI small bilt. li_ in Ihe ilIid ho~Jt for ....'hole JlNf uctpf few one day. or tal. thl: ...idfood uupl for" little ..",,,,,,,,. Thrst 'mb art grollndk::u and such oaths arr lIrus brokn. Sudr ..... <ivI' propk may permit "'''' ....illing ull kinds of duds prohibiltd by tilt r..."'8i~r by "YIliding co"'milling Q little /HIrl of cam artd. Howevrr. kuping an OIlth or /making il is ;wl Ilk. rh . mallu pf obtdienct and disobfdirnu regarding Divine ordinances. Onti oalh Is nOI fulfi lled Ilnlw 11 i. fulfillcd 10 tht full, " ot OIIly p;lrl of i/, Illld Ihus onr iJ rtgankd as an obfditnl StTvanl CJj AII<III. On Ill. Olhtr hlll1d. brtoking p;lr1 "i Ihe OIllh i.J rt'g<lrrlrd a. pnjury, t2I1d Ihw on. i.J rrgankd as Q disobtdiel1l JtrWInl of AIJ<III."'
h happms that someone may s""ar not to do SO,,",lh ing and Ihm he "",Us someone d~ do it {or him 10 avoid petjury. In {Kt. such evasion don nOl sparr such I pcnon 1he liability of his oath, unlas he has already mUllt not to do it him~lfwh ~n toking th ~ oolh.

In a nuuMlI. it must be ~ed that oaths havr such a high esteem and must not ~ dealt with lighdy. nor should peopl( mort 10 trickery 10 evade fulfilling the liabilitia of t heir oaths.

'"

Endnotes
IS<! ': A ttandard m... un' thot oquol. 2172 8~ 2 AI Bukhlt! (662l) (1 116291 and Muslim (4257) 1611181 .

3 AbO OtWlld (3278) 13/3801 and AI-Tinnidhl (lS14) [4/107J.

4 AI 8ukh .... (l:IJ9) IlI145) and MwJim (5356) 111lS1!. S Sce AI./lduiy.lnll" [p. 474J and 14ajm~ '''' 1'.014'''''' (12J119). 6Scc 'MotJmIl .. , . ~ (l2l2l9). 7 Sec "1'1<1",

A/.M"-.,q;',,," (312\14).

CHAPTER

"
"

Vows
Li nguistica lly. 10 lake ~ vow, in Arabic, means tn obligate on~lf solemnly 10 do 5Omdhing. H~r. according 10 Islamic Jllrisprud~nce. a VOW is a voluntary obI iplion bun by a compdml, Icplly accountable ~rson upon himsdflO do &Omelhingseeking the pleasu re of Allah, Exalted be He..

A vow is considtrrd an a<;:1of wunh ip that should ne~ be !MiUI! 1 Sttk Ihe 0 pleullu of anyone olher ,nan Allah. Exalted be He. I1 mUS( nIM be dedicated 10. <kad perwn in his grav-e. an angel, a prophet, or a righteotJ$ .."van! of Allah, ..
one, bydoin, 00, is a~. t ing p.. tnen with Allah, .. hjell; , cono.idered an.cI of majorpolythd lm Ihal renders a ~rwn non Muslim,1S il i5 r<'garded ua kind of worsh ip to som~one olher th.n Allah. Accordingly, those who ta ke vows Sttking the pleasure of the dead righteous pwple at their graves nowad~)'$ commi t major polytheism. May Allah prQte<:! us all against fa ll ing into polytheism! So, lh~

people who commit su ch acts must re~nt IUAllah and avoid this major sin. and wun their people against it lhilllhey may kar Allah.

...
"Making 11 vow does

Xli OAlliS AND VOWS

Making vows is originally delnlable, and it is deemed prohibited by a group of scholars according to the badith narrated by lbn 'Umar (may Allah !w. pleased with him) that ..,ads:

,.,,,t prtvenl anything (reltlted to fale),

but il

makes a miser spend his property."

The compiler of the book entitl . d A/,Muntaqd (the ~kCltd) ~id, "This hadith

iJ related by the Group of the Compi/m of Hadith txduding At1irmidhl. Th. ""... on beh ind the~ two rulings ;5 that one who makes a vow obligatcson.~lfto

ol

do somethins; that is not originally a religious obligation, and gets one~lf into a critical situation by such a vow, whereas a Muslim is enjoined to do good dl!<'ds
without having to make vows.

Nevertheless, if one makes a vow to J"' ,form an act of worship, One has to fulfil! it. for Allah, Exalted be He, says:
"A nd whOl/t""r 1<'11 sptnd of ~%pendituru or mau ()f Y<lW. -

inde. d, Allalt knows of it ~

w()rship~rs

(Qur'an: AI- Baqarah , 270)

In another verse ()f the Qur'An, Almighty Allah describ<:s His faithful, pious

sayi ng,

"They {are thou wlw ffulfi l/llIteirf vow. andfwra o..y who., . vil will b. widtsprtad.~ (Qur'h: Allns:'n: 7) Al lah, Exalted bt He, also says:

"... and frs/flllllt eir vows, .."

(Qur'An: Al-Hajj: 29)

Moreover, it is related in SabinAI-BukMrI (AI-Bukhdrrs Aurhentic Book of tlildlth) that the Prophet (PBUH) .ays:
~WhO<!'ver

vows t() obey Allah mu;-t ()/n!y Him, and whO<!'ver vows to

dimbty Allah must not dirobry Him.~'

Imlm Ibnul-Qayyim said:

"As far thou who commi/ themselves 10 voluntarily perform acts of worship /0 Allah, they do that in on. of four WIlY'. They ejlh.. tab an oath to perfarm it, or vow to ptrform it, Or take an aa/h emphasiud by a vow ta perform it, or take a vow emphasized by an ooth to perform it. Aliah says, "And "m()ng Ihem "'"" those wlw .....a. a C<n'.....nt with A.llah, {saying], 'If H h()uld give us fr"m Hu I>ounty, ,.,., will .urely sptnd /n charity.. : ~ (Qur'An: AtTawbah: 75) Such ~ vow mUlt btfulfilled or We th. one who makes

.,
il ",m

wsubject to I/~ p..n;mmtlll stalnJ in lire ~ lhill mu1s. .50

He ~ ..aliud /hem wlllt hypocrisy ill thdr " taTtl ... ~ (Qur';!.,,: AtTawbah: 77) Thus, Wlw/ng /0 ptrform a mlun/ary !let a/worship is worthitr offulfil/me .. ' than fuling obli~d to ptrfo rm it Q.5 in saying. '/ CWI! Allah to do so "nd S(J: .'

Faqlhs (may Allah. have mercy on them) stipulat e that a vow must ~ volunllrily made by a com~tnt. sa~, discriminating. adull person SO as to ~ validly tffted. They ba$e IhU opinion on the hadill! in wh ich the Prophet (PBUH) '"'YS:
w Thtrrart three (penons) whoseaction5 art no/ recorded: A minor until he rtacha puberty. a luntni, until he comes 10 1'tOson. and a sl.-tptr unlil h e aWllk ts."'
Thisfladith prova that the above- mentioned th ru kinds of prople are nol oblljated 10 fulml any vow, lhey may takt, as IhG are r'tOllegaJIy ac(ountable for their dds.
Kt

TM vow made by a di~litV is dttmed ",did if I! is made to perform an of worship. and if .wch I disbeliever con""rts 10 Islam. he has 10 fulfill the VOWht Ita:5 liktn while !>ting I d isbd i~~. 'Umar IbnulKh,nab (may Anah N pleased with him) narrated that he had once made a vow in the Pu-t.lamic P1.rlod of ignor;mcc (Ihe )dhlliyyah) 10 seclude in the Sacred Mosque for on c night, $0 the Prnphet (PBUH) $.;l id to him: "fI.'lJili your vow.'<

Valid Vows are of Five Kinds

1_An Absolute Vow made by saying, for example, ". owt Allah a V<YI.' without dellnin!a certain act ofworship 10 ~rform due 10 vowing. The expiation for such. vow i~ !ho: !iOme as that for a brohn nath, whether tht vow is conditional or 1I0t. This is bea use . Uqbah tbn . Amir (may All ah ~ pleased with him) n.rTatcd that the Prophet (PI:IUH) $Oid:

11 is the

vow

"The vrpiation for ( brw/(ing) " vow which iJ nor defined ij rht sa...., " J Ih"l for (Irn:<lking) an OIllh ....

loo M1j ah and AI -T .. midhl who deemed it ba'!aJI "'hlh &harlb)'

(Retaled by This badith "airs that il is oblig.:llOry to expiate for an absolute vow if the
Kt

of worship dedicated to Allah, Almigh ty and defi ned in the vow.

E~er-Majtslic

N He, is not

'"
It
i~ ~

XII OAntS AND VOWS

1- A Vow Taken in a State of Importunityor In a Fit of Anger

cond itional vow meant to tither prevent someo ne from doing 0 something. 10 urge him 1 do it, or to make wmeonc be li eve something, or disbelieve in it. For example. when one ")'lO, "[ vow to ~ rform Hajj (o r ftu a sl ..'e) if mys~ prowt untrue or if! speak 1 you, 04' about you." A perwn 0 who lakn ... ch a V(lW may choo~ brtwU" fulfilling his vow and expiating fOl" il jU51 liR a "roUn oath. This is b=i~ 'Imno Ib n l:iupyn (may Allah be pleaK<I wilh h im) na ' !'IIte<.! that he hrard the Prophet (P BUH) saying:

"No rows rabn in IIftr of "n~r (art valid), Gnd II.e rxpiation for such a I'(I"' ;S /11c samt as IlIatfor (breaking) <In 001":

(Related by Sa" Id Ibn Manjiur in his book of }ja.Jlth s)'

3- A Vow Taken to Do an Ordinary. Perminible Act An eumpleof such a VOw is wwing la ...earone's P"""nt or to ridtonc's pack animal. In this OK, onc may choose Mlwun fulfilling on,:. vow and expialing for il if OOe ~frains from doing Ihe said a CI. Ihe same ... lheexpialiof'l for breaking a n 001". just like the SOIld case. Thc opinion of lb o Taym iyah (ntlIy Allah hall<' mercy on him) in this rega rd is thatllO expiation whatsoever i. called for in cue of breaking a vow to perform a ~rmJ5Ilibk act. He ground! Ihis ruling on th e Iladrrl, rellted by Al-Bukh~rt that ~ad~: While the Prophet (PBUH) was ddiverin8 a jermon. he saw 11 man who ~m" intd standing. <0 he asJwJ about/he mlln. They Oh" propleJ SQid. It il Ablllsrd71 who has taken a vow to stand and nC\'\'r sit down. newr Ca,ne in 'he shtuk. nM $pttllc to IInybady. and ID f<l5l.' TM Propht-I (PBUHj SQid. "Ortkr him 10 mume $f>Nking. come in Ih" shnde. Qnd lil down. bUI 1", him compltte his /Q$r: '"
</.- A Vow Taken to Commit an Act of Disobedie nce to Allah
An namptc of , uch 0 kind of vow is vowing 10 drin k intoxicating liquors . or 10 fa~lt he d .~ of men.rruation or Ihe Day ofSacrifi,e. It i. impermis~ibtc 10 fulfill.och a vow. a, Ihe Prophn (PBUH) ."p:
Wh~r

vows /0 disolwy Allah mUSf nOI disabq Hi",:

This hadith . lalC$ Ihal il i. irnpnmissibk 1 fulfill a vow 10 disobey Allah. 0 bc-caLlS" OM is never permitted to d isobry Atlah u nd er any cirrumslan.:es.. Another =>.mpl", of vow. of disobedience In Allah is Ihe vows ta ken 1 be 0 fulfilled at the gravtyards S('eking the pleasure of the dead buried therein. Such

Chap ... 3, Vow>

'"

a deed i5 considered major polythfism as previously mentioned. Expiation for such a vow is the same as that for a broken oath according to some scholars, the opinion which is based on the narrations of Ibn Mas'ud, Ibn . AbMs, ' Imr~n Ibn Hu~yn, and Samurah Ibn Jundub (may Allah be pl eased with th em all) , How""er, some scholars maintain that a vow taken to commit an act of disobedience to Allah is originally invalid and it entails no expiation. This is one of the opinions amibuted to Im~m Ahmad, an d it is the opinion of the Hanaf!, the Mllikl, and the ShMl'1 Schools. It is also the opinion maintained by Shaykhul-Idim Ibn Taymiyah who said:

"The vows ro f~r";sh a grave, u moullta;n. or a tree with lights, and th. vows dedkated to such plau" their inhabit~'''s, or Ihe;r visitors. are impumissible 10 be lakrn: such ,"ows are impermissible to be fulfilled as scholars w1~nimously agret. Such objects (j.e. the lamps, money, or whQ/ever is put in s~ch places d"e 10 vows) are to be gathered mid used for the benefil of the public, QS long as Ihe identities of Iheir owners Qrt! unknown (to return these objects to Ihem p "

s- A Vow to Perform a Pious Act

It is a vow taken to p"rform an act of ~diell(e to Allah, like performing Prayu, Fasting, /:iajj (Pilgrimage) and so forth. Such a vow can be absolute (i.e. unconditional), as in saying, "I have taken a vow to fast (or pray), or conditional, as in saying, "I f Allah cure. so and 50, I vow to p"rform such and such an act of worship." In the latt~r case, once th" condition is fulfilled, it become. obligatory for the one taking the vow to fu lfil! it. Th e Prophet (PBUH) says:

"Whoever vows 10 obey Allah must obey Him."

(Related by AI-Bukh<1rI)" Morrover, Allah, exalted be He, says:

"They (an: thooe who) fulfill their (VD .... )

(Qur'an: At -Tahdm: 7) Almighty Allah also says:

"".and fulfil! tMlr vows.,."

And, Allah knows best.

(Qur'an: AH:lajj: 29)

XII OATHS AND VOWS

Endnotes
I AIBuOhlorl (6608) 111/601\), Mw.1im (~1Il) W99), AbtI Dlw6d (3287) [313841. AnNHli (3810) 101/2 11 and rbn Mlijalt (2121) [21551). 5'00 At Tirmidhl (15-12) (41112). 2 AIBuOhltl (6696) [111706). 3 See I"Idm A!-Ma""qqi 'IM" (21122),

4 AM Dl,,"tld (+103 ) ond An -Nun (3462).

s AIaul:hltl (2032) [4/348) ond Muslim (4261l) [61126),
~

,0,1-Tirlllidhi (I,m [~/1(6), Ibn Mo;. )' (2127) [21554]. See . 100 Mu,lim (4229) [6.1 106 1.

AbO DlwM (3323) (31l98[ond An-Nw; (3841) [4/331. 7 G},arlb (Un&miliar) /1<Jdirh, A /1<Jdllh reported by j .... t on. na,noto, . 1 . ven on lOg. of tn. dWn of tran. miMion.

8 An-N.,n (3851) (4135 [.

9 A IBukhlrl (6704) (1 117141. 10 See ':4.//kh.!iydr.lr AI-Fiqhiyyah" [4761.

1TSee "["Mm A!Ma....,qqi'lM (2 / 122).

CHAPTER

Judiciary in Islam
ShaykhullsUm Ibn Taymiyah (may Allah have mercy on him) said:
"It is obligatory to aSSl/me tht judiciary M a Il'ligiolls dutrand as Q mtO'1S oJ dra wing near to AUah. ln fact . it j, one of/he be.t means oJ achi(Ving M ame... to Allah. H,,_va; many persons in this po.I';oM haw bn ( (orrupted />au,e of seeking leadmhip and wealth through it: '

Judiciary is legislat~d according to the Qur'an. the SUMMah (Prophetic Tradition) and COnsenSus of Muslim scholars. Allah . Exalted ~ He. says:

"Alldjudge, (0 Mu/!ammtuJ/, between them Iry ",hal AI/tU. ha.

revealed

(Qur'an: AI- Ma'idah: 49)

And He also says:

0 D"y;d, ;"dud We haW! nuu/e Y"" a JuaeJ$or "pcJn tht earth, 10 judge betwtm Iht people In truth . ," (Qur'An: sad: 26)
~rWe Jaid},

xm Q.tDof'UUDt(lARy)
Prophet (P8UH) himself umkl100k that ""P'Jnsibility and IpJl<>inted judges In the regions that we~ under the Isl amic rule, and so did the Caliphs Ihat succeeded him. Furthermore, Mu~lim scholars agree uniform ly on the necessity of assigning judges to Ktt le disputes amo ng prople. Jurisprudentially ,peak.l ng. th.e judkiary indicatn the clarification of th.e legal ruling and applying it l$ well as srttling disp.lIet.
00
Mo~,lhe

A5. for the jud~, SMyk.hu l-bUm Ibn Taymlyah (may Allah ha~ mercy him) said:

"TIre judge assu"ra fhe role cif '" wir"ess wifh rtgfIrd to providi"t tvidmu, tilt rok of'" mufti ' with rtgIIrd to issui"g rulings. ",,,d th. rol. of'" peNOlt in authority with rtgard 10 having judgmentJ impumentl'Ci.' ' In Islam. the judiciary is a (ol.lrdi~ duty as it is an indispensable thing
In people's affaiR. In th is rtSpKt, [ ",1nl Ahmld R;id, "'Jltmo "'ust ~ a jud~ "mcmf propk 14 rhlJ1 rigltls "'''' nm /051: Mouow:r. ShaykhuJ-Wlm Ibn Taymiy.h said. "TIre PrcIpIwt (PBUH) hw _ik it., duly la appoilll Ollt 4J kadtr wlltn a smaH group il Oil '" joUrMY'. Sl.ch '" coMmand ~ for ",U kinds

of "'_mbli~'"
If only onc competent person u.ists who CIOn undertake judgeship, th en it is an individual obligation upon him to do so. That is beea",,, un(i(I1.k.ing judgeship invol~s. g~at reward for tht one who is cap;able of observing it according IQ tlw legally prncribed way. NfVenhekA.. llUuming judpip invo/ws gJlI~ dan~r (or the Ont who does not apply it aaording 10 the kpUy

prescribed way.
When appointing judges, the ruler of Muslims has to appoint judges according to the ~ui5iles of Ihe public interest $(I that right~ arc: not lost. lk5ides, the ruler hIS to Jl'lect the best ~rson5 In terms of knowledge Ind pitty. However, if the ruler is not able to decide wheth tr a certain person foil that position or not, he shQuld inq uin: about him. With rtgani to the judge, he has to make ~ry dl'ort to establish justice among people. ThUs, the judge is not obligated to ohscrve what is beyond his capacity or be blamed for it. The penon in authority has to .llocate a suffICient salary from tiM: Muslims' Public TrnJ.Ilry for tlw judgt to cover his U~1UeI so that he can dedicate himsdf uclusivdy 10 his;ob. ]n support ofthil view, the Rightly-guid ed Caliphs ha~ Issigned suffICient ..Itri.. from the Mu$lin's' Public Treasury for Judges.

The judge's powers I re to be rrfffffii to the conventions prevailing in CO>Ch age separately. In this ,dation, Shykhul blim Ibn Taymlya.h (fIl.iIy Allah havc
mercy on him) said:

'"

"AJ fo r tht powers of riot rlller, they art! no/ sptci/ied by Itgislalion;
ralhtl'. riot)' Mt depend, nt 011 tht , ...tom< ,HId cO'l~miollJ.'"

This is dut 10 Ihe fact Ihat whatev.:r is nOf decided by legislation is to be rtfel1'td to oonvmlion. Ibn Taymtyah added:

"Tht posilion of Iht judge can N divided; namely. it con M htld

by many ~oplt.for tach is a "'''/ain Qrea ofjurisdkrirm. Besides, it is 110/ obligMory for the j udge 10 be 'og"i~tl"' of "",,,,, Dlntr than hi. Thai is btcQlIse tht position of praClic;n8 ~til,,'d (an be divided. Assuming thallht judgt i. as!lign,d 10 decide on "" mtrs rela ting 10 th e dIJtributi,'" flj thl share of i"heriltHlet. il is not obIiptory ..pon him la ~ cogn;z.ml CIf mlll/ers Olhtr 1/"111 tht ",linK" ~rtQining 10 Iht laws of inheritanct , beqUt SlS and such TeWltd .....lIen. Uk~wj~, if Iht j udgt is lWig" t d 10 d"dde on matters relating ID m~rr;~gt conl r~c/5, i l Is no/ required from him /() I>e blOwWgcable of ~rher unrela/ed marrers. Henu. it is ptrmissible to assig" a judgr to decide on maUtTS rlla/ing /0 hi. are.. of know/tdgt and whall Yl' dots '101 l>eloTlg /0 Ihal area is vi~d aUI of hil wr1Iptftnct. This is applicable in th t etue oftht on' who Ilndtrlakts Iht position of tht judgt / 0 rtndlr a judgment concerni"g 11 Ctr/II/" mlllln 't//lled /II/h, disbdit l'f'fS who (IInfas $/Ilisfrul/OI' eo",,,.,,/,,g his being a jud~ MOTtOl'f'f, if somtont. who is in Iht stalt of ibrdm . h"nls a gAmt from Iht //I nd. Iht n t..., just ptrsom art to be appointed to judge hi$ '/1St. Hence, it is ptrmissiblt If) appo inl perJolU Q.f judges 10 dtcide on c,rlain CQ.fts al specific situMions; ytl, they lire n011D be viewed 11$ Judgu who hav, tht compel'''" 10 dt eldt on al/ (asts."'

Nowadap.. tht Ministry of )mtict has adopted a Sf$ttm to whio:h judgts $tl,k; ~ch judgf' has h is own a nll of jurisdiction and ~ ..... 11lat i$, judgts have 10 nr.:.- to that system and ~ committed to 11 , for such a system is con,idet-td a mans of regulaling mauus and specifying jurisdiction. BaidG, that 1}'1lem dotS nO( con tndict any oftht texts of t~ Qur'in {)I" the Slmnah (Prophetic Tradition), so it must be acted upon and adhered to.

M"

XIll QALlA"'UUD1ClARY)

The necessary qualifications (that should be considered as much as possible) for being an Islamic judge are:
To be. a legally accountable person. namely to ~ adult and sanc. That is lxcallSl' the non -legally accountable person is under the guard ianship of ot he.... so such a perso n cannot be the judge of others, for the judge assumes the position orlhe ruler.
To lx a male; this is due to the hadilh in wh"h the Prophet {PBUH) &aY"

"The pe(Jp~ who ore ruled by a W()man will never be successful:'

To bt a ["""man; that is bc;:ause the slave is busy looking after the rights

of his maSItT.
To be a Muslim; this i.'l due to the fact that Islam is the cond ition of being just. Besides, it is requirM to degrade the disbeliever, not 10 ra;"" him in rank through appointing hi m in such a sublime p<:>5ition ofjudgeship. To be up right ; that is becau.., it is imperm issible to appoint the defiantly disobedient person. This is due to the statement of AUah, in which He says:

whl) how Nllewd, if th~Tf! ctnnn to JOo 0 dl&obt.dltnt ant with Informotlcm, Invt$tlgalt .~ (Qur'an: Al-Hujurk 6)
~O

roll

Accordingly, as it is not ptrmissible to accept information from such a person, his judgment is to be rejected wit h greate r rtason. To have sound hearing; that is because the deaf cannot hearthe sptech of the two lit igants. To have sound eyesight; that is because the bLind j udg~ cannot distinguish hetWttn the plaintiff and the defendan t. In this rtspect. Sha)1<h ul l.llm Ibn Taymiyah said:

"According to the <In<lwgical deduction of r~ Ht>nbal/ School, it is ~rmissible to appoiMr a bliMd p..rsoM as a jud~ just as hi. testimony ;S aCCf'pled. Thm i. because such a person lacks noth;ng but .re;ng Ihe litigants, a tlliMg which he dO<'J not nred. for h. C/lM judge accordiMg to di:jaiption. This is supported by the fact that Prophet Ddwfld (Doid) (PBUH) judged between two angels. Btsidi:j. il tends to be vie"",d ~bsQlulely permissible to appoifU a bli~d man Illll judge. IM such a CIlSf,

a..,.n.r I: JudKiuz in l.bm

",

Iht blindjuJ~ is 10 b.: loId ...no lilt wilntutj ami litiganls alT, j llst lIS tht nvrmaJ judgt ;s told vf tht mtarrirrgs vf thtir s{!teeh in taU translation i, nu dt d. This i, btcause knowing who the litigallls' ilitn/ilia and ~lIiMg tht mtaning of th eir speech aIT tqually imporlalll."'

l1w judge must hav( Ih( facuhy of s~h. nat is breau"" the dumb I""rson cannot delj~ the judg ments. Bnides, many people do not comprrhend the signs used by such a person .
Tht judge mUSl be one whocxel"Cises ijtiMtl. Ht must ~isoe ijlihold, tven in tht school he adopts.. in which he follows the opin ions of one of the grrat scholars. That is. the judge has to be able to diff.,..,ntiale octween the 50u nd and unsound rulings in that school With regard to th ese conditions. Shaykhul]sUm Ibn Taymiyah (may Allah have merry on him ) Slid: 10 b.: eonsidtrM as much lIS pouible. Furth", lilt po$i/ion of judiJdlrip mltSI b.: underltlUn '" Iht best amOllg people. This is Ihe ~invadopltd by Imllm Abmtld and cnhtTS.ltmmiingly, if ,hm lirt dtjilirrl/y disobedi(IH ptnons lind onr of Ihem musl b.: dJOUII 10 undtrtakt judgt>hip. Iht mosl Suilable amongst Ihem is 10 Ix ch()jtn. Likewiu. if Ihtre 11ft Some f'<'TSon. who do "0' e;urri", ijlihdd bUI follow tI errlain j uri,prudenlill/ school, Iht moSl wprighllilld /rurned of thtm .....ith regard to foUo wing Ih. opinions of weh a sdtooI, is 10 b.: appoimtd:
till"

"11teK nn$<Jry qutllifkaliom

In tMs connection. the compiler o f A/Fu", (Tht 8ranclrc-t) ~id, -The soundal opiniQ1l iJ ","Ill hllJ bun said by 11;'1 Taymiftlh." Iksi<ks. the "ompiler of the book mti!lnI AI/rqAfUustict) Slid with regard to the issue of appointing tht one who imitates th~ opi nion$ adoptal in a particular juri~rlldcntial scholar, '":. ..Such a vitw hlls Wt" app/itd Jor a long ti"'t. so IlJ not 10 5ws~nd ~ople"s affai,. aMd inttrt$I$:"
Moreover, lmim Ibnlll Qlyyl m Hid:

"The 0"" ..ha UL"isa ijrihM is tht Ont ..-ha f'USStutj

knowitd~

oftl.. Noble Qurjtn lIod tht s.."naII. /n /lddilioll, IlIt ijrihdd of .wch 11 pvJOII don not JorfM him fro'" tuJopring IlIt opinions of other schokm in ctrlain Cllus. That is baawu 0 ... finds all Ihe guat schala... building Ihtir j wdgmeMI. on tht opinio~ of thOlt who li re "ha"" Ihtm in kno ... led~ with rrg<lrd 10 .omt muu:"

""
Endnotes

Xl II QAllA"(lUDlOARV)

I Stt "AI. /khtjy.1n1t"lp. .801. 2 Mufti, A Muslim ocOOiar Ipi. liud i n u.uingl.gal ,ulin&l in rnponoc 10 a ll ymln'. qualion on I point of lilt lolam"= '-"w , 3 So< Al-li:IIli)ob'4l" Ip. d l J. 4 Ai nmr in thr /iaJJ1It rd.>tflI by Abio DIi...oo (261)8., 26(9) 13ISB). , Stt Al-llIoliJolrdl" Jp. 4801.
6SttAI-~ [p. 480J.

7 $H AI./iM,.trdI" [pp. '"'5-436 1. 8 AI . 8u Wrl (4415) l1li 1S9), 9 See AI-ll:Jt/iy.1n1I" [I' 4861. 10 Se<, 'AI-1n.i<lj" (1111701. 11 ~. '["lAm A/-Mu""''i'li 'M On).

CHAPTER

Judge Ethics
Imlm Abmad (may Allah have mercy on him) said, 'Good manners means

nor to get angry or rancorous." Moreover, Imlm Ibnul-Qayylm (may Allah have mercy on him) said:
the judgmtHl
m~lters. if any of >viii,,, is !Ibm!!, knowing the evidence, reasons. and dear proofs. For mort: illustration, the tvidenct gujdu th e judgt /0 know the geMrai legal ruling, th e ""as0115 guide him to know the

"The judge

needs 1(1 know Ihr

~cornu invalid:

dppiicabilily af such a ruling 10 a <:trial/! cast, while the d ear prooft

guide him to know the way DJ plUSing a judgment when then is contradiction in evidence. Thus, whoevertrrs in Ont of the three, em in his judgment.
I1 is recommended that the judge b" .trong without harshness so thallhe oppressor d(H's not b"little him,and nexible without weakness so that the propl.,
entitled to rights may not fear him. In this r~pect, Shaykhul-lsl4m Taqiyyud-

XHI QAaA"UUDI(]ARy)

Din Ibn Taymiyah (may Allah hav~ m~rcy on him) said, "Judgeship hili two pilla,-,;: slrength and tfu.tworthiness."' In addilion, the judge should b.. patienl SO as not 10 get angry a t the words ofthe litigant an d thus unable to judge justly. That is, patience is the ornament, beauty and splendor of knowledge; and it is contrary to impatience, rashness, hal1iness, irritabil ity, and instabil ity. Besides, th e judge should be patknt so as not to misjudge among litigants. Moreover, he should be discerning so that he could not be deceived by some litigants. Furthermore, the judge should be virtuous by keeping himself away from all prohibited matters. !'urthu, he should be knowledgeable of th~ judgments passed by the preudingjudges . The place of the court should b.. in the middle of the town, if possible, so that people do not face hardship in reaching it Besides, there is no harm in silting in a mosque to decide cases, as it is reported that' Uma. Ibnul. Khan~b, 'Uthm~n Ibn . AfThn and' Alt Ibn Ab([ Dlib u=l 10 sit in the mosque to decide cases. In addition, the judge should treat the two litigants impartially and just ly in terms of th~ war h e looks at them, the way h e addresse, them, the places where they sit, the way he receives them, and so forth. In this regard, Ab" D~w"d related on the authority o f IbnuzZubayr (may Allah be plea",d with him) who narrated:

"The Messenger of Allah (PBUH) gaW! the judgment that the two ad"",-,;aries should be made to sit before the judgr.-'
With regard to this, Imlm Ibnu] QaJ')'im said,

"/t is prohibited Jor the judge to set on , of the two litigants above the other, giW! him mOrt altention, UJ/ljult him, or stand up for him as a means ofhonoring him. That is hffause .uch acts may,ause the other litigant to feel disheartrned and unable to express his argumenr. The judge also should nol show his di,approval of the litigants, os it may eau .. them disheartenment and frust ration, and hold th~ir tong~e3 from upressing their argument .'"
In addition to thi s, it is deemed prohibited fOT th e judg~ to have a secret discourse with o ne of the litigants, to tell him what to say. to ente rtain him, or to teach him how to deliver his argumen t, except when on e o f the litigants forgets something necessary and it must be explained to him when presenting the case. Besides, the judge's sessions should be anended by the faqlhs and he should consult th em concerning whatever may b e difficult or doubtful for him. Thus, if the ruling is dear to the judge, he is to pass hi. judgm~ nt; if not, he must delay passing his judgment until he makes sure of il.

o..ptn 1: judJ;< Ethics

[I is deemed prohibiled for lhe judS<' 10 decide casu wh~" being in a slal~ of greal anger. This is due 10 Ihe budlrh, in whkh IM Prophet (PBUHJ said:
jI,

""

judge must no/ judge betwrtn two prrwn& whilt he is in IIn

IIngr)' mood."'
ThaI is beause mger affects boI:h Ihe judgc', mind and hurt and thus blocks his 5QUnd compr ..nenslon and wise coruidcratlon. LiUwix, .-wry malln-thal may affecl lh .. judge's lemperamenl for lne worse, such as hunger, Ihirsl, .nl~, hortdom. $Ie-epinm, rctmlion of urine or $100[, or~" the ..-..alher is irrilalingly hot or cold, has Ihesame ruling appJird to anger. This is ~d on the facl that suell mallei dlslurb and eonfuK Ihe mind in a way Ihal may p",~nt Ihe judge from reaching a sound decision. Further, it is prohibited for lM judge 10 ra::..iVl' bribes. This is dUI: 10 the badillt narrated by [bn Umar (may Allah be pleased with him) in whidt. ne said:

Mt:S5t"gu (PBU H) " .vd,M ont who bribes and Ihe olfe who lakrs bribe."
Commenti"8 on this /lad/fir, At Tintl idhl said, "TIru In thll resard, briba. arc of two ki nds: I A brib<: laken from o nc of the two 1itiganu In order 10 decide in his favoT.
2- A bribe given 10 Ihe judge who abslains from judging in f..vo. of the rightful person until he bribes him . This is one of Ihe g~vest acts of injus t ic...

~rm

u .. /lDsDn !"bill badith."

In addition, it is prohibittd for tht judge to accrpt girts from those who did not use to ~ him gH4 b<:fore he bameajudge. ln Ih is mprc:l, IM Proph~

(PBUH) said: "Gifts given

10 goVl!fnQI"$

ure (considered)

iIl-gollen

properly."

(Related by Ahmad)'
~ is ~ acupting gifu from IOIIleOIle who did not use to p thc judge gifts befon: he barnt: a judge is m ~ to <kc:idc in th;.t per$Of1s fa..,...

FUrlnennoR. il is delestable for the judge 10 sdI or buy excepllhrough an agent who should nOl be known as thc judge's agent, for (car of partiality. That il, parliality in purchasins and Kll ing is $imila r 10 IM P",ViOll$ ruling pertai ning to gifts.

Xlll QAlU' (jUD IClARYj The judge may not decide cases in which he is involved or cases involving any of tho~ to whom hi.! t~timony cannot be accepted. such as his father. son. wife, Or enemy. for. in such cases, he is sus!",cte<i of partiality. Therefore, if any of such cases i5 asIligned to him. he is to refer it to another judge. This is supported by the fact that ' Umar Ib nul-Khanah referred the ca~ ofUbayy to Zayd Ibn Thabit to decide it. and' AI; refern'd an Iraqi man to Shurayh to judge his case, and 'Uthman rderre<llalhah to lubayr Ibn Mu!' im (may Allah be pleased with them all) for judgment
[t is desirable for the judge to first

look into the cases demanding summary

decisions, such as those of the imprisoned. minor orph ans and lunatics, then the cases of endowments and bequests that have no guardian. With regard 10 thedeci sions made by the judge, t hey are not to be invalidated unbs they oontradicl lhe rulings ofthe Noble Qur'an. the Sunnah. or a decisive con~ruus of Muslim scholars. [fthe judge does so, his decisions are not to be implemented, as they contradict the Qurln. SlInnah o r the con~nsus. In the [jght of this brief pre..,ntation ofthe ethics of the judge, the justice of the judiciary in Islam becomes evident In other words, judges in Islam assum e a high ran k that cannot be reached th rough all th e worldly law systems. True an' the Words of Allah in which He says, of (tlu time of) Ignurana they de.i..,t But WM i. b.,tter than Allah in judgm~nt for 01 people who OIn cvt.<lin {infaithl . (Q urln: Al-M;1'idah: SO)
H

" Then ;' it

th~ judgm~nt

May Alla h disgrace Ihose who turn away from that divine judgment and n'p[ace it with Satan's law. Those are the people whom Allah meant in the noble verses: "". those who exchlmged th~ fawr of Allah fo. di.belief aM settled their people (inl th~ home of rain l ltt u l Hell, which they will [elltt~ to) /la,.", and wrdched u tlu .ettlement.n (Qur'An: Ibrthim: 28-29)

Endnotes
IS ' AI-lkhliyolrJt" Ip . 41>0].

'"

2 AOO DlwM (3588) [(lt4). 3 S -ZJdulMa 'M" (4'96). 4 AI /lukhlrl (7J 58) (UI1691 and Muslim (4465) [61241). S Ab1:i DiwCld (3580) [41l0j . lbn Mijah (2313) {l19l) l nd At TIrmidhl (iWl) (31622). 6 Ahm.d (23492) [51424 1 ond A]IIay!laql (21).(74) (101233).

CHAPTER

Method of Undertaking Judgment

to dKk thdr caK, he Rats IMm bdo~ him and iUU, "Who is the plaintim " Or he may -.it until the plaintiff sp<ab pr~nl1ng hisdaim. Tht' judge then should lislen carefuUy to the claim.

Wbrn two Iitiganl5 come to a

iud~

If the claim Is pre5tnted property. the judgt! thm is to u k the defendant, "What
is )'OIIt deftns,er " lrthc defendant admil$ that the d.u m is InN', the juclW may give a dteision in favor of the plamtiff. But iflhe dt-fendant denies the cbim, the judgt is 10 turn again to Ihe plaintiff asking Mm to preRnt proof ifhe h.u any. That ;$ because Ihe plainliffiJ the onc who 'hould substantiate his claim in order to get his right. When the plaintiff brings the proof, the judge is 10

pass the Judgmen t according to the proofs.

The judge is not to judge according to his own knowledge (apart from Qthcr toUfUS of Information) as this may lead to his being luspected. In thi'

regard. the gm! scholar Ibnul-Qayylm (may AUah have mercy on him) said:

XIII QADA'aUDlCIARY)

"When the judge duides a caS<' according to his own knowledge, thm he mayduide it unjustly and defend hill15e/f saying that he has done 50 depending on his own knowledge,"'
He also said:

"It is authenticaUy reported that Ab,) Bak,. 'Ilmar; 'Abdur-Rahm<ln Ilm 'Awf and Mu '<lw/yah viewed rum an act prohibiud and none of the Prophet~ Companions was known to disagru with thtm. Bt-sidts, the master ofjudges. the Prophet (PBUH), knew some marttrsabout the hypocrites that would makt i1lawfwlto kiU them Imd /alu Jhl:ir W&llth. Homver, he did not decide their ""se in t""'" of his own knowledge. though thm would be no offtn", on him ifhe did so.for lit isjru from any suspicion and trusted by Allah. His angw and Hi. servant.l."
Ibnul-Q.yyim added:

".. , Ho_ver. it is pennissible for the judge to decide the casts according to what is available before him of recurrently reported information, namely, there art many who share knowledge with him. Moreoyer; il is permissiblefor the judge to decide a C<lS<' IUcording to the information that many people orher rhan him have knowledge of Thus, it is permissible for him to depend on such recurrent infonnation in passing judgments as they are considered among the most preponderant proofs. Consequmtly, the decision of the judge will not be suspected if he establisheJ hi< opinion on this common information. as it will be based on proof no/ merely on his own knowledge."
With regard to the plaintiff. if Itr says, "' have no proof to substantiatr my daim, tlten the judge is to inform him that he may request that the defendant swear. This is according to the hadlth related by Muslim and Abl'l Dawild that states:

"Two person, referred theircase to the Prophet (PBUH); one of them w'" from Hadramaut and th~ other was from Kindan, The one who had come from Hadramaut said. '0 Messenger of Allah! This man has appropriated my land which belonged to my father. The on" who had rome from Kindah said, This is my /and and it is in my possession; h~ IuIs no right in it: The Messenger of Allah (PBUH) said 10 the manJrom Hadramaut, 'Do)'<'u have any evidence (to support )'<'ur claim)?' He replied in the neglltiw . ThtreupoH, the Mtsunger of AUah (PB UH) said, 'Then, )'<'ur case is to be decided on his oath.' 8'

o..prer 3: M.. hod of UrukraltlnS joogmcn'

zO?

In this respect, fmAm fbnul Qayyim said:

"ThiJ iune fOllfinuow rule of rM SMrf'llh (lslllmic Lllw). HfflU, rM oath iJ ro be IIlkm by IhllkfofUUlIIt, <lI IM pklintiff has _ brouglll forrh Ilnyrhing ,,,pporting hi, cia;m. Thmupon, tM dtf,..wt iJ IM one who Is to tah tht O<Ith. as Ihe~ /1 110 proof against him "nd ht
i. pri_TU)' innocent. In othtr word.. tht deftlldalll iJ tht 6trongt"f of Ihe fwo litigtUlts due 1 the original principk of bang in"octrll; thus, 0

IM oom iJ /0 be !akin by him.'"

Therefore, if the pla inliIT requesu Ihat Iht defendant Take an oath, the judge is to make him do SO and then set him free. as the principle states his innocence. NevcrTMless . iT is STipulated, for Ihe validity of the defendanT's oalh. thal the oath is 1 be a reply 10 what the plainl iIT claims. Moreover, the oath is 0 1 be taUn by the defendanTafter the plainliff's ~Utsl, at il is right of the 0 plaintiff which must 001 be taken except after h is request. However. if the defendant .b~tain~ and refu$.e!l to ~wear, then he i~ judged as being guilty, under the conditions of hi I abstention from taking the oalh. Thai is becall$t iftheplainliffl claim was unl rue, the defendanl would d efend hiImdf by taking the oath. So, his refusal to IIU an oath il considered an evident proofindicaling the truthfuines.$ of the plaintiff in whatevcr he claims. Thus, such a proof i$ to be con$idered regard le" of the principle stating the innocence of Ihe defendan r until pr~n guUTy. Ccru;iderlng rhe defendant guilty in case he rduses to lau a n oath is theopin ion adopted by manyscholars, and . UthmJ.n (may AU~h be pleased with h im ) passed judgmenu according TO it. In this regard, som e scholars " y, "If the dtfellwt "/usu la s.......r, tilmlhe judge ;s 1 ask the plaintiff ro Jwear, ~p;ally ifhis claim is subslan tia/td," 0 With regard to the wue of taking an oalh, ImAm Ibnul. Qayyim (may

A11ah have mercy on him) said:

S/!Ilrl ah omains l/rllr rM oarh iJ 10 be r.:rhn by fM one whou proofs outwrigh those of the a/ha litigant. A=lrdingly. Ihe on~ whose
~

side i6 6ubstantialt a mOrt than Ihe otht. I. tht ant who I. 10 takt an oalh. This is tht opin ion adopttd by Ihl majorily of scholar.. such as tht IChoIIlrs of Mullna and IM scholOfJ of IJpdlm like Ab,mod. A5h. Shdft ' ~ Mdlik and others."
He added,

this opinloH hIU been applied by tM Prophlt~ Compan ilmS, ond lIi~ sound by 1,.,<lm AlImad Ilnd other scholars."

~ ..Mo~owr,

XII! QAD,A'OUOlClARY)

He also said;

"Thi. opinion is not diffiwillo be applied; the OIllh is 10 be taken by the plaintiff and he will lake his right, Furthermore, Shaykhul-Isldm Ibn Taymiyah adopled that opinion:'
In addition to this, Ab .. . Ubayd said:

':4.sking the plaintiff to lake Ih e oalh (in case the defendant reJures 10 lake the oalh) has its rools in Polh Ihe Noble Qurlln and IIu Sunnah (Pmphdic Tradition):
Shayldiullslirn Ih n Taymiyah (may Allah
hav~ m~rcy

on him) said:

"'What has been ref'<>rledfrom the Prophel's Companions concerning the defimrhlnt's "'fwal to take an oath and that the judge in Ihis case ash the pwintiff 10 swear, does not contradict each olher. Ralhtr, each of the two matt"" has its own f'<>sition, To iIIusrrate more, in '<Ue the pwintiff knows the truth of his claim and the defendanl refure. to swear, the plaintiff may swear that his claim is true and thus be-comes entitled to what he claims. Bul if tht plaintiff refuse:< to tab Ihe OIllh, then the judge is not to judge in hi, Jawr on basi, oJ the ahstentiOn of the defendanl to take the Oillh. This is the SOmt as th e care of 'Uth mdn Ibn 'Affdn (may Allah be pleased with him)."'
Commenting on what Ibn Taymiyah ha. said, Ibnul-Qayyim says:
~The opinion adopted byour Sh eikh Ibn Taymiyah is Ihe decisiw one concerning the defendant. refusal to take an oath and permitting the plaintiff 10 do so,"

He went on saying:

defendant and he refuses to lake an oath, then the judge is 10 judge againSl him, WhtreuI, if the truth iHokly dependent on the plaintiff. then the judge is to ask him to .wear, but if he refuses, then the judge il not to dtcide in his favar on rhe basis oflhe defendant's rifu.al (to taU the oath). This;s the bNI review concerning Ihe rulings On both the tkfendant' r4wal to lake an oath and referring Ihe oalh to the pl~intifT'
However, if th e defendant takes an oath denying the claim ofth~ plaintiff and thus the judge sets him free, a, mentioned above, and after that the plaintiff <omeli again with proof, then it is on~ of two cases. The first cast, if the plaintiffh ... previously said that tM,.., i. no proof, th~n the judge is not to

~Jf

Ihe Irulh of the claim is

~pendfnl

solely on

Ih~

711
liJ.(e/l

to his proof. as the plaintiff has d~nird it bdore. TM second cue, if th~ plaintiff has not denied iu nlst~nu. thm the jud~ is to listen to this proof IUld judge accordingly.

In this connectio n, it Is worth mentioning th8\ the oath taken by the denier
(the defendant) is not cOfl$ldereJ a means of elim inating the truth of the claim, a.s the claim is not invalidated through laking Qilths. Rather, the Qilth taken by the dm ier is a means of e ndi ng the d ispute. not dim ina!ing t"" right of the plaintiff: Ukewist, ifUle plaintiff states that he has no proof and after that he finds one, then the jud~ shoold conskkr il and judge accordingly. This U b:ausc the pIalntiffhas nCM denied il in the first plaoe. And Allah. Eulted Ix

He, knows best.

Endnotes
1 Stt "LW A/-MQ 'IJ" (4196). 2 MwIim (JS6) 111l4O). Sa- oho AbO DtwGd () 2~ S) [1I1611and ..... .T\nnldhI (1 344) IlllWl. ] Sot foomocc in Ar-R<lwIt AIM,,",, ' [7/S41 ). 4 Sot "Z4d A/MlI '<IIr (4J9(;). $ See the bl(JI()(e in ArRaw!! AIM!I1bi (1/S4;). 6 AJ:I"""I A/Hub.d)7<J1l" (pp. 121135). 7 the fooInou in Ar-IWWI! AIMuTbi {7/S45).

m..

s.. " s..

CHAPTER

Valid Court Claim: Conditions

The claim ill nOl Y1lIid unless it is presented in detail. So. if the claim is oboul a debt ~ from a dead pSOIl. for oamplt.lhen the dealh oflhe indebtrd, the typt of 11\(0 debt and il$ amount"" wdl ~ all the othtr !"dated information !bat may cbrify the claim must be mentioned. This is due 10 the m . that the decision is dependent on such cUlails. ThaI is why AIIahi: Messmger{PBUHj said:

... 1givr my judgmrntaccording /0 wluu f IwIr."'

the IJpdItJt refers to the obtigalion of dartfying th.., claim so .. \0 clarify 10 the judge tile reasons and facu needed for the decision.
H~y;

It is n<)\ valid abo to litigate over something unknown or unspe<:ified; the

object of claim should be known 50 illS 10 be attained and obligated when the validity or the daim is pro""". H~, there are.om., exceptions to this ruling.
illS

Ills valid 10 do so in SOme cues. such as claim; ng a bequrst in which a person

bcquealhsloOme ofh ls wealth or Olle of his slava as a dowry Or suchliU.ln

XIII QALIA'UUDlaARY)

such a ~. the claim is valid. ~n jf the thill8litigated ovtr is unknown or u/Upmfinl. Moorwvtr. the claim mwt ~ declaml. So. it is IIOt enough fur t he plaintlff to say. ~He owes me SlI(h and slICh; but he (th e plaintiff) mwt o;kcla", that he clainu such a thing. Ba.ides. the thing litigatnl ovtr mwt be d~. as t he claim is not valid for a dd)I: on ~it. This is because the defendant is not lobe demanded for the dtbt b"fore its dlX UIlU' and. also, he is IIOX to be imprisoned for iL I'u~. the claim must not in~ what disprovt$ it. For c:xample. it is invalid ro c:bim that someone killnl somebody or $Iok something twenty years ago wbik tilt defendanfs a~ is less than ~nty. as tilt claim would be illogical. If il is litiptnl o~r 8 selling or renting cont!"lld. the claim. in order 10 be valid. mwt involve the conditions of the rontract. 1nis is due to the fad that some people may dispute o~r them . Bnid~. tlut contract may be invalid from the judg.:,!; point of \>kw. In addition. if the claim relates to inheritana. the ruson entitling it mwt be darifled. "!"bE is btcause the rnsons cbligating inhmtance differ. so the rnson o n which the claim is estabiishnl musI be defined. FioInher, the valid claim must dmIW the object litigated (lVer; whetlltr it is prtsent in the rourt or the country-. SO all to eliminate ob$Curity. However. if the cla imed obj ect is no t pre#nt. then it must be de$Crlbed with a description like that connected with buying. namely. to Slate all the nece.",ry description s oflhe object. In addition 10 this. ;usti (truthfulness) i, cOIIsidered a prerequisite for the validity of the evldenct. This is due to the noble vtQC in which Allah. Exalted be He. says: ~... And /mnl III orittlfU 111'0 jwt mn /mm ""'0116 yc>li~ (Qurln: A.l-Ial1q: 2) Allah also says: ...frrnn Ih.,. ..h"m"., .. aeapt a. orit _ u .(Qur'in: AI-Baqarah: 282)

A"""0 ,..... ,..,.., 1o"!Ie bdlI'ftI, if

IJwr CD"a ,,, ,..... " diulWdin1 _oriM in.frwr-ll"n, i_tigOlk.. (Qu rlll: AJl:iujurit: 6 )

In ,hi, rrgam.foqlh, (may Allah haw mcrey on them) differ u to whrtlltr the witness mUllI be In outwardly and inwardly just (true) person or being an ou tward jwt person Is enough. There are two different opinions. t he prepon-

Cnapta 4: Valid Court Claim: Condit;glU

715

derant of which deems an outwardly just person a valid witness. This is based on the fact that the Prophet (PBUH) acc.,pted the testimony of a Bedt>uin (Le., the Prophrt (PBUH) ronsidue d his outward state). Besides. 'Umar (may AI. lah ~ plea.s~d with him) said, "Muslims are just."' In this respect, the judge is to judge depending On the just evidence unless he knows otherwisf:. That is, ifhe knows that such evidence is contradicted (by others), th ~n it is not permissible for him to decide according to il. As for the witnesses whose justice {i.e., truthfulness} is not known to the judge, h e is to inqmre about them, He may ask persons who,,", well acquainted with those witnesses such as friends, neighbors Or persons d ealing with th em financially. In this regard, 'Umar (may Allah be pleased with him) said to a man who recommended another man b.efo", him:

"Are you a neighbor of his?" The man replied in the negative. Then, 'Umar mud him again, "Have you eyer accompanied him in fmve1ing where the true nature of mm appears)?" Th ~ man wid, "No,- 'Umar asked him for the third time, "Have you eye, dealt with himfinandally?" The man replied in the negative. Upon this,

'Umar mid, "Then, you do not know him.]

If there is contradiction betw~n the proofs invalidating and those vali dating the witne&<es, namely, thell' all' signs indicating their non-uprightness for testimony as well as others indicating their uprightness, the judge must gi"" p=edence to the issue of the ir non-uprightness (Le., not to accept their testimony). This is supported by the fact that the one refuting the upright ness of a witness knows something unperceived by the one who r:<>mmends him. Besid es. such a person tells about something unknown by others while the one viewing the uprightness of the witness for testimony tells only about wmething: outward. MOreQvtr, the One r efuting the uprightneSli of a witnts.l is proving romething (to substantiate his view) while the one who views otherwise tries to deny something alll'ady proved. It i, slated as a general principle that what is proved is to ~ given precedence to what is denied. In this connection, when the defendant acknowle<1ges the just ice and truthfulnu. of the evidence, it is coruide",d just and true accordingly. That is because seeking the truthfulness of the evidence is a means of ensuring his right. MOll'oYer, his acknowledgement of the truthfulne ss of the evidence is regarded as an acknowledgment of the right h e Owes to the other litigant (the p lainti ff). So, the defendant is to be judged in coruideration of his acknowle<igment of the truthfulness of the evidence.

XIll QAQA'UUDlClARy)

As for the judge. if he knows the truthfulness of the evidence. then he mwt decide the caSe according to it and he does not n..,d recommendation. Otherwise. if the judge knows the untruthfulness of the evidence. he must not judge according to it. Mo"""",,,. ifhe has some doubt with regard to the witnesses, he must ask them how they bo", such a witn .... and whe", they bore it. IbnuI-Qayyim (may Allah have mercy on him) said:

.. . The judge must do this (i.e. 10 txclude doubted evidenu and judge according to the proven ones). Thus, ifhedeviatesfrom doing Jhis. then he is regarded as committing a sin and turning away from the right judgment. In this regard. ;1 happened that two witnesses testified before 'A/i Ibn Ab!l1Jllib (may Allah be pleased with him) thal a man had stolen samething, but 'All doubted their testimony. Therefore, he ordered them to cut off/he man:' hand themselves (to test their truthfulness). so they fled ."'

If a litigant claims the invalidation of a witness, he must introduce proof. This is due to thehadith in which the Prophet (PBUH) said:
"Proof lies
Oil

the plailltijf"

In such a case, such a litigant is to be granted a respite of thr.., days to present his proofs, but if h. brings none, then he is judged in consideration with the evidence. That is becaus e his inability to bring a proof that the witne.sses are not upright during th .. specified j>(' riod is considered a proof of the voidance of what he claims. If the judge does not know the aCl\lal state of the witnesses, he is to ask the plaintiff to prove their uprightness. so as to judge according to what they testify. In order to accept the uprightne.ss of th.. witness, there ,hould hi: two j>('rsons testifying before the judge that he is just and truthful. Howe""., it is viewed sufficient by some scholars that one perso n testifies that the witness is upright. It is permissible to judge an abs .. nt j>(' rson provided that he is far-off for a distance that requires shortening prayers as long as the claim is proved against him. This is due to the bad/m in which Hind Bint 'Utbah complained to the Prophet (PBUH) saying:
"0 Messenger of Allah! Ab" Sufydn (her husband) i. a stinKY man and he does not give me what suffices my children and m... The Messenger said 10 her, "Take what i. sufficient for you and your chi/dTfn, and the amount should be just and reasonable:

(Related by Al Bu\:h:lri and Muslim)'

ZI7
H~l'tby, the hadilh indic't~s th~ ~rmissjbility of judging 'gainst the absent J>(rson. Neverthdcss. when th~ absent person returns., he may present his qument before the jU.;iS l~ l't<lSOn obstructing the caso: is eliminated by his mum . That is baUR proving t:M truthfulness of I<lfMthing does neM invalidate the d~im ag<linst it or n..gleet it,

When decIding agains t an absent person, he must M: o ut of the area falling under the authority of the iud~, However, if tM absent person i& in t~t area and there is no Judge therein, the judge is to write to a person fitting to decide among the litigants 10 judge betWffn them, Ho wever, if it is unattainable to do so, then the judge is to write to whoever is fit to effect conciliation between the litigants. Hu t, if it is un attainable to do so, then the judge is to ask the plaintiff to bring a proof sub$tantialing his claim. Therefore, If the plaintiff suMtantialed his claim wi th proofs. then the jud~ is 10 bring the other litigant even ifhe is fa, of[ In relation to this. lmim Abmad m~nlioned that the opinion adopted by the scholars of Medina stated that they decided castS against Ihe lIbsenl persons. He comllN'nted on this saying that this is a good o pinion. Momwer, MZarbsht said, "111'14", AbmllJ did ,,01 de"y rht vit ... of Iuari"g Iht claim or lilt evidtnct (ill "nkr ID didt dpinst ... " ~"f perS(m,." 8t$ides,lmim Ahmad cited lIle opinion oflhe people afMedina and Iraq a$ ifll was uncontroversial. In addition 10 this, it is permlloS ible to listen to th~ claim against someone who is not legally .ccountab~ and then decide according to the proofs. This is supported by the aforementioned fladith of Hind Bint Ulbah. Ir $uch a penon bKomes ~LIy a.ccountable after passi ng a judpnt agaiTUt him, then he hu Ihe right to present whatever proofs to substantiate his defen~ ' . Endnotes

t A1. lk1kh1tt (6%7) (t2l424 ) and Muolim (4448) 1611)11. 2 AlSayhlql (20537) 11012521. 7/55 I]. 3 See Ill< foolnole in "",Ra"1l' AI...,"rb;' 1 4 See the footnote in AJo.Raw,;i AIM",/>;' 17/5521.
5 At TllttIidhl

(1345) [31(26). 6 AIBuWI1 (5364) [9{6lt1l and Mwllm (+152) 1612341.

7 S!he fOotllOle ;n Ar.Ra"1l' A/ M.';'; [7/5561.

CHAPTER

Dividing Shares among Partners

The proofs of di viding shares amo ng partners are deri~d from the Noble Ql,lr'~n. thesnnah ( Prophetic Tradition) and the con~JUusofMuslim ""hol an, Allah, Exalted be He, "")'5:
~A "d

;,,/0,... 'hem lluIl 'he _'er I, !hand btlwuII 'h'''' ....

(Qurl n : Al-Qamar: 28)

He .ao $I)'$'
p~"t

"AM ../w" {other! ffla' ;,.a aM "'1'''''016 a nd 'he nNdy .. ~ at the II;m, ofl di>'is;c .,. ", (Qur'An: An-Nid.': 8)

Moreo""r, the Prophet (PBUH) .. yJ:

"11lt

prct!mption is applied in every j"j", wlldiYlded property."'

Moreover, he (PBUH) hi mself used to divide th e spoils of war among Mu slims '. In addition, many scholars m aintain Ih.1 th ere is con.ensus among sc holars on the ilol ue of division. Tlli. i. due 10 t he facl that nec= ity calls for i\ at there is nO other way to givr righlli ofth<: joint proprrty to thost en titled 10 them except th rough division.

720

XJlI

QAl2A' (JUDICIARy)

Division Is of Two Types: Consensual Division and Compulsory Division

First Type: Consensual Division I1 refers to the division that must b.. implemented with the mutual consent of an partners and it is impermissible to implement it without their mutual consent. For mOre illustration, it is the kind of division that cannot be implementtd without causing harm to one or some of the panners, or that cannot be implemented except when one of the panners gives something in compensation to the other. Such a ~ may be witnessed in properties such as small howes, shops or lands consisting of different spots distinguished by buildings, trees or the like, or when a certain spot represents a kind of benefit for one of the partners exduding the others. Therefore, it is impermissible to divide such a ~ of joint properti es except with the mutual corusent of all the partners. This is due to the hadith in which the Prophet (PBUH) says:

harm others nor should one seek benefit for himself by C<lusing harm to others."
(Related by Im;\m Ahmad and other compilers of Hadllh) The 8"neral meaning of the hadlth indicates that it is impermissible to divide something that may cause harm to any of the panners except with the partners' mutual consent. Such a division takes the same ruling applying to ~e transactions. That is, the rold item maybe retumtd if defective. Beside!, it involves the option to conclude the contact or cancel it in the session of selling, making conditions, and suchlike matters. N.".,rtheless, no partner is to be forced to accept such a division, But if one of the partners demands selling the joint item, the one who rd uses division is to be obliged to submit, and if he insists on his stand, then the judge may sell the item on their behalf and divide the price between them, each according to his share. T he rort of harm that forbids implementing such. type of division is the undervaluation of the property when divided, regardless of whether the partners benefit from the division or no!. That is, it is not included in such harm that the partners do not benefit from the joint property if dividtd. Second Type: Compulsory Divisjon This is when there is no harm caused in dividing a property, and there is no compensation required. It is called 1-0 becau"" the judge forces the One who refuses division to accept and implement it when its conditions are fulfilled.

"On~ should not

Such a lYJ>eofdivUion may be concluded in p~rt in such as a village. a garden, big hauoa and shops. ~iou' ]Inds, .. well .. musurable and weighable Ilems from the same kind, In order 10 make it permiloSible to oblige the one abstain ing from division 1 ICcept il. three conditions must be fulfilled: 0 1- The judge must mue $lire of tlte partners' owner$hip of the _rtick 2, He must mU.: SU~ thalthe~ will M no hann resulting from ttw: division.

J- Ht mUSl mm su re of Ihe possibility of dividing the shares of the joinl

property in a way allowing Ihe shares 10 be changed withouI giving compensation to any or lhe partners in return for this change. Thus. if one of the parlnerJ demand. division, .fter fUlfilling these condi tIons, the ClIher partner is to be forced to implement it ~n ifhe ~fu~ to do 110. This is based on the fact that division eliminates the harm caused by the u istence o f partnership, and e!Ublts each partner to dispoK freely of his own thare and benefit from It through planting. building and suchlike matins that are not attainable with the uistence of partnership. With Ttgard to the above hsue, if one of Ihe partners i, not legally ."ountable, th en his guardian may impl ement the division on his behalf. Moreover. if one of th e partners is absent (for any reason) , then the judge may implemen t t he division on his beha lf upon the demand of the other partner. In fact, that type of divisIon is a means of distinguishing the share of one ~rtner from that of the OIher. Morwver. it does 001 take the same ruling applied to sale transactions, .. each has its own specified rulings. ]t is permissible for the ~rtnen to d ivide the ;oint property by them~1ves. assi gn ~nme to divide it among them. or refer to the judge to ass ign some ont to do so. At for adjusting the divisIon of the shares, it may be through dividing the join t property into part., If the property i. w~;ghable or m~""urabl~ and of the same kind. Moreover, just division of Iham may be t hrough considering the value of the sham in case the properly it of different pHlS; each having a value different from that of the others. In wch a cue. the t hare cons isting of parts of less value muSl be mo~ than the share consist ing of pa rts of higher value, so as 10 make a kind of balance betw~n them. However, if implementing _ jU~1 division is not attainab le, neither t hrough

XIII

~(JUOlaAllY')

dividi ng tM properly nor consid<'ring Ihe vallle. Ihen partners may mort 10 com p<'nnlion. namely. Ihe o ne who takes a share of value m(l~ than Ihe share of Ihe othe r parlner has 10 pay him an amounl of money equal to the d ifference in value. Wh en Ih e partntr, divide. Ihe prope rty among th emselves ur draw lots for the shares, Ihe division becomes binding, Th ai is because che one who d ivides Ihe propcrty a mong them u liu the judge and lhe acl o f drawing lots on th e,harn i.like Ihe dt(Uion made by IM jud~. $0 the d ivi. ion becomes bind ing. It is permilSible 10 draw 10ls o n Ihe sharel in any (arm. Howr~r. the mosl p~ferabk way of d rawing lot. is Ihe o ne in whkh the names o f the partners a re written on pieces o( paper and Ihen they aa rolled up Ind mue<! togelher. Then, Ihe partners may invite a pel'$On, who waS nOI pre,enl (so he did not Ice 5uch ple.:el o f paper) and ask him 10 pick those pieces and PUI them on the shll"t's. So. wh~ver finds his name on a certain share, II belongs 10 him. Besides.. if each parlMr l ives lhe other the risht 10choose between share$, the division becomes bi nding, by mnns ofl heirconsenl and by IM endinlOf the session of division wilhoul any objection.
Morro~r. if OM parlner claims tbal lhere is a mistake in IM d~ion Ihey have implemenled among Ihe mllCJves, though Ihere a~ wilnesses on tlldr mutual consent. then such a claim is not considered. Th is is due 10 the fact thal he has already consenled 10 the division accordI ng 1 Ihe way il ha.! been 0 implemented. 10 he is to accept the inc",ase of the sha", of the other partner.

In add ilion, wh~ cI.. ims Ihal tM~ is mlstaU in the divi, ion imple mented by the person assigned by the jud~ or the penon lhey ha~ usigned. such a claim is considered o nly with . proof; o therwise. the OIMr p,Jrtner i. 10 !:tU a n OiIth dfnying that daim. The o riginal ruling states that Ihf claim i. nOt trut \lntil provt n olnerwi!.e. ThUs, if . uc h a ptl'$(ln prnent ~ p roof sub,tanliat ing hi, claim, the n it is comidercd and th e division is to be Inval idated Thi. is baK<i on the f"c' that hi il~nce (I.e .. accepting Ih e divi.ion) goes back to hi. view concerning the appa~nt jUlIl1ce of the ]><,rso" who hlS implnnented the division. So. ifthe person .ubmits a proof substantiati ng hit claim of the injustice mad( to h is right, he may claim his right back. W herns. if noch of the tWO partners daims his right to 50IIIdhing in the property, they may rC$OTl to ,.. king oalhs and the d ivision is to be invaHdated. Trult is because the thing they bot h claim has nOlIOnl IQ ... mcone other Ihan them, and none oflhem has a prooflo outweigh the claim of the other.

As for the defects that ap~ar in the sh~ of one putner. he h~s the right to choose belWttn ~voking the division or kping the def~1ive sha~ and taking com~nsation. That i.! based on the fac1 that th e dcft in the ,han: of anyofthe partners i, n:ga rded as giving him les.s th an hi, entitled , hn:. Thus, such a ~rson is 10 be give n the choice either to revoke the division or kp it lod ge1 com~nsation, the IoQme as applied in sale transactions. And Allah, Eulted be He. knows best.

Endnotes
I Muolim (4 105) 16147), 2 Muo1im (4595) [613l 7).

s... . 1\<1 AlBukhlrl (1257) [415501 100 Muolim (411).1) [61-46).

CHAPTER

Claim and Evidence

The term "claim" refers to the act of requesting or

Allah, Exalttd M He, say.,

d~manding

something.

....."dfor them U "'''''In .... they ""'1unt far wish]."

(Qurln: Yasln: 57)

Ju rispruden tially, the t ..,rn "claim" ""fe rs to the act when a person demands 50mtlhing in the poSSf'ssion of another perwn or in his liability. As for the "evidence; it refers to any sign indicating one'. right, such as witness and oaths. !mAm Ibnul-Qayyim (may Allah have mercy on him) said:

"In the $hart"fllI, dear

~idence

re/m 10 whatever clarifies and

manifest! any right. A.llah. Exalted and Glorified b. Ht , h ... mad. right. clear w;lh signs and indications signifying and leading to them. So, ",h"""", ignores tho 'igns and indicalwnJ jn general. ,.,""/'" a
/01

of rulings as ..oil as right. '

726

XIII QAW'(JUDIC1ARY)

The difference betwe~n the plaintiff and the defendant is that the former is the one who is released when . ilent (d"". not claim) while th~ lalter is the One who is not rde~d when silent, as he is claimed against. In order to dedde on the validityofthe claim or the denial (defensc), each must be from ~ person who has the freedom of action Le.. h. must be a free, major, and legally . ccountabl e person. If two persons claim for a particular property that is already in the possession of one of the litigants, then it belongs to the person who has it, provided that he swears an oath that it is his, in this regard, the litigant who is in full possession of th e property is ca ll ed the ~ingoing while th~ one who doe. not possess it is called the outgoing." if each of the two litiga nts submits proof that the property is his, the property is to be given to the "outgoing party (i,e" the One who d""s not possess it)," This is based on the fladith nmated by Ibn 'AbM. (may Allah be pleased with him), as a marf'" bad/IIr, In this bodilh, tk Prophet (PBUH) said,
How~r,

"If prople were 10 be given whal they claim (without provillg their claim), thell some people W{)uld cltlim the life tllld property of otker people, The <HIlh is to be token by Ihe defmdant (in the ob,ence of any proof against him)."
(Related by ImAm Ahmad and ImAm Muslim)
Mor~ over,

th e Prophet (PBUH) said:

"Prooflirs on the plaintiff and the oalh is 10 be sworn by the defendant,"

(Related by At -'firmidhij' Thus, the two b,adillls indic~te that the plain tiff is th~ one who must bring proof substa llti ating his claim; if he brings it, the decis ion will be in hi. favor, Th ey also indicate that th e oa th i. to be taken by the person who denies the claim (the defendant) when th e plaintiff does not have proofs substantia ting hi. claim. in this ,a,e, the majority of schola rs say that the property be longs to the one who already is in full possession of it; the ingoing party, Those s,hola.. are of the view that the bJldlrh concerns the cas e in which the one who is in possession of the property does not hav~ a proof; thu!, his po,"es.ion of this property next to the proof will be stronger. It is worth mentioning that the opinion of the majority of scholars has more Ilght to be followed .

727

Howev(r, when the proJ>(rty is in the possession of neither, then each is to swear an oath that it does not helong to the other, and half the property is to he C<jually divided hetwec.n them. This is be<:ause they are C<jual in their daim. and none of them has proofs to outweigh those ofthe other. However. if the~ is an apparent sign indicating that the property belongs to one of them, it is to he conside~d in the decision. For example, if two spouses litigate over the dothes and suchlike of the house belongings, then whatever fits a man is to be given to the husband and whatever fits a woman is to he given to the wife, and whatever fits both is to be gi""" to both.

Endnotes
1 Se< th< f_noI. in "M -Rawi!' AI-Murlli ' " 1 7/576] 2 Mu.lim (+H5) [612291 a nd AI _ Bukh~rl (~5S2) 1812661. 3 At_TiTIIlidhl (134 5) 13/6261 .

CHAPTER

Testimony

Tntimony. in Arabic. refers to seeing, since the wit ness informs about what hdshe has already seen and known. It is a cont~r5i.1 matter among Khol~rs whether the witness should begin his/her IUt;ITOony with saying. ". tdtify,,; or"1 haw testified ... Or not. In this regard, then an two views; the first is tht wtO -known view maintained by the Hlnball scholars., namtly. that it is obl igatory to say such word. when t~lifyi ng. The second is one of the views reported 10 be mainto.ined by trolm Ahmad and a group of scbolHs; they maintain Ihat it is not obligatory to bqin one', testimony with "' Irstify.. ," or the like. Th il is the ,;am e opinion adopted by lmim T.qiyyud-Dln Ibn Taym iyah. hi. dl&eiple Ibnul-Qayyim, and other Musl im Kholars. Sh.ykhulbllm Ibn Taymlyab said:

a pm-tquUiIC of ttstimonJ /0 Slly '[ ttstify.. .' This is tM samI' opinioft adopted !ry Imdm Ahmlld fJnd otllm, Ilnd ;, Nu not <:Om/! to my ~ 1Nl' I~ is" ronfnlry ~ tUf hi Ihis FUTthnmorr:,
"/1 is IlOt

_m.

XllJ QAQA"UUD1CIARYj

noJ1e of JJ~ OJmp<!nions of rhe Prophet (PBUH) or of rhe OJmpal1io/lS' Successors has stipulated mying such worW when lestifyil1g:'
IbnulQayyim sayJ'

i\ccording to the sound view of the mojority (Jf Muslim scholars il1 this regard, informing about what one has witnessed is il1 fact a lestimony, That is to my, it is not a condition for th~ validity of tire testimony to my 'I testify.. .' Rather, whenever tht witness mY' /lwt he has =n 5uch and 5uch a thing or that he has heard 5uch and ruch a thing and the like, this is regarded as a valid testimony. In addition, there is no text either in the Gwrious Quran or in the Sunnah stipulating thar the witness is to say 'I te.tify' when bearing a testimony. Furthermore. aon. of the Companions of the Prophet (PBUH) i5 reported 10 Ilavt stipulated sayiJ1g so when testifying. nor can il hi! concluded by means of analogical deduction or inference. Further. the numerous prooft of the Glorious Quriln. the SUl1nah, the statement. of the Companions and the Arabic language assert that it is not required to say ,uch words when testifying.">
It is a collective duty to undertake testimony in matters other than the limits m by Allah. Exalted k He. That is to say, if someon e assumes the resp<Jnsibility oftestifying. it kcomes sufficient and (he rest of the Muslims are not to be accountable, since the purp<Jse of testimony ha, k en accomplished. Ifthert is only one person to do so. then it is personally obligatory up<Jn him. in consideration with what Allah. Exalted b~ H~. says:

", .. And Id Not the witnesses refuse when thty an aUkd U/H"' ...

(Qurln: AIBaqarah: 282)

That is, if witnesses art asked to assume (he responsibility of testifying to what lhey have witnessed. they are to offer the testimony. The g~necal meaning of the verse implies both assuming the r~sponsibility of testifying and offering the testimony itself. According to rbn AbMsand others. the above-mentioned nr", means assuming th e responsibility of testifying and declaring testimony in front of a judge {or a court. a deli~",ti"" body, or thos~ in authority}. Since necessity r~quires legal testimony for confirming the rights of people and the concluded contracts, te'tifying kcomes an obligation like enjoini ng what is right and forbidding what i, wrong. As for declaring testimony. it is an individual duty on whomever undertakes it. and is asked to testify, in consideration of whal Allah. Exalted be He, says:

CNP!Cf 1: Too""",,

": And do ....1 ~lIUaI IDlilftO .. Is i..dffll si..

"ell,'

f"' ...

"fo' "'''_r ro ..uah il _ llis

(Qur'An; Al -Baqarah: 283)

That is. when one is a~ked to testify of what one has witneSMd. one Is not to conceal tnli mony nor oventate in declaring il. since Al lah says. ~.. .for ...hot-nr (""Utl/s it - his hVlrt U i..~d $i","I...~ That is 10 say. lhe heart of lhe one concealing lestimony i5 wicked; a ~re d ivine threal of turning ont'. heart into a wicked disflguml 01lC. AUah mcntkms the heart in particular ,inn it is the position acquain ted with what one hu wilnessed The a~ ~ signifIeS th'll testifyi ng is an individual duty upon whoever wil~ ~n event whenever he/she is asked 10 testify. The guat scholar Ibnul.Qayyim (may All ah have mercy on him ) says. Undertaking and declaring testimony are an obligmioOl 'h, nonperformance of ...hie" is a ,in: H e add,:
.... B, me",.. of <lnalogiCll/ deduClion of the "ie... m<linl<lintd I>y the U"nbt.U ",holm. jn this COMtnI. if Ihe wifmess roTlcnJlJ his ItsJimOllY (i.e., re:fwses '0 undrrlak.t or dtdore fesfimony' coMtnling an)' righl. he is 1 rcduss Ihis righl in fM form of"fine. This is ball~ he has 0 I1n able to giw: 'he righllo whom il ij dlle (by dlllring !estimony) bUI refrained. It;s '15 ifone has h<ld th~ apportunlly to $<IW <I person from <I dangerolls situation. Y"f one ha. not done JO...,

If theu is no harm on the side of the witness (because of declaring t~S!lmony). it Ihen bet:omtS obligatory upon him to testify. Howe""r. if 1~$Iimony will cause harm to him ptnonally or 10 his sens.e of honor. property or family, in litis case, it is not obl igatory upon him. Thi.s is according to wh.J.t Allah, Exalted he H~. says:

.... UI .... serito.. to.. h",mM '" lIIty ...ilna6... (Qur'an: Al -Baqarah; 282)
This alw is demonstrated in the /t<>dith in whkh the Prophet (PBUH) says:

One should n Of harm otht" nor should he suk btntfi'./o, himst/f by c"U1ing h"rm lo O/he,,:
And Allah, EIalted be He. knows hnt. The wit""'" must be cert ain abou t Ih~ matl~r concern ing which h~ is 10 lestify. [t is prohibited for the wilnns 10 testify to having witness.ed anything except what he/she knows with certainty (by $Cdng or hearing for example), in co nside!';ltion to what All ah. Exalted J", He, says:

7J2

XI II QAaA'(JUDtClARY)

"And do not PUNU tlwt of which you have IUIlrnowltdgt, ,," (Qur'~n: AI-lsd', 36)
And His ~tattment:

"... but only thou who ttdify to the truth [can bentflt], and thylrnow." (Qur'an: Az-Zukhruf: 36)
That is. the witness must be wholly c"Main regarding what hdshe is to te.tify. In this connection,lbn 'AbM~ (may Allah be pleased with him) narrated:

When the Prophet (PBUH) was asked about le,timany, he said to the inquirtr, 'ThJ you su the sun!" The man replied in Iht affirmative. He (PBUH) Ihen said, '5<J testify Ii~ this or leave it {i.e., be wholly u rtain regarding what you art tmifying th" same as you are cerlain of seeing the sun, or do not ttstify).'
Thi5 narration is rclated by Al-Kha1l11 in his book entitled AI16mi' (The Collection)'. A}-Bayhaqi says, "Tit;. narrarion iJ not narrated by a rtliable chain of transmitters. How.:.ver, Al-H:l.f\l: Ibn Hajar says commenting on this badith, ... But tltt mtoMingofthe badfth $/oied in Ihis nMrMion is correct.Q To illustrate, knowledge about the matter, regarding which one is to te.tify, should be based dther upon hearing it or upon seeing it. The",by, one is not to testify to having witnessed anything except what One know. with certainty by way of seeing or hearing, or through hearing about ao issue which is a public event discussed among people and which is difficult to know except in this way, as in cases like relationship" by marriage and death (of a person). Howe-ver, One i. not to offer testimony d epending upon heariog .!>out an issue discussed among people ncept when it comes to one's knowledge through a number of people enough to prove the certainty of such matter.

There are six conditions to be fulfilled by the one who is to deliver testimony:
1- Reaching puberty: Testimony i. not acceptable from children except when it COncerns matters relating to them. In this concern, the great scholar Ibnul _Qayyim says;

"The Olmpunions of tht PTophet (PBUH) and the faqllu of Medina used to accept the testimony of childrtn when it is related to q,,"rreis occurring Amongstlhem. Tltis is beCAuse men tire not typiCAlly present <If Juth $itu<ltiom. If tht testimony of tho~ cJ,ildren Wl're nol 10 he

CNfIIO! 1: TatimoJIy

tlcaplabk In sm:h 'it ....''"5. p ropk's rights would be /os!. IUlfolfrlld ~nd thus disrtprded. tsptcltllly when their testimony i$ nwre probable to b. truthfol or rtU~bly truthfwl. This is as in casts such as when Ihty COm. dirtdly. withoul going 10 their homts. /0 Itslify 10 an indde7l1 Ihty ha"", witnt S&td. agm on Iht same infor...ation and art uparaltd at tht lime of delivering tht /tllimony. Whrn their Intimony is identical In such a UlSt. their InlimonY;5 considt:Ttd m Oll! rdlabk lhun Ihal of ,_ men. This Is 01 ~itw thOlI cannot be denlcd or lYfw.d ...'"
1- Sanity: The testimony of the: insan~ or the: foolish person is not acaptable. M for the one who sometimes 1o$t$ ,onsciousn~ his testimony is acceptable when he regains consciousness and assumes the responsibi lity of testifying. This is because in his conscioU$ness. it is a testimony from a la ne person who resembles a puson who has n(llloil his mind. ) - TM Ability 10 Speak: The testimony of the mute is not acceptable CVl:n if his signs Ind gntures are undersflndable. since cenai.nty must be, fuIf.u~ in testimony. The signs of the mutt. in spile of that. an cffcctivt: and ~uffkitnt in rulinp pntaining 10 his affain: 5Uch as marriage and divorce, for necessity. Howevu. If ~uch I person write~ his testimony, it is th en acccpt&ble. for writing is suggestive of speech (i.e . what he cannot lay can be written). 4- Being I Muslim: A witness muu be, a Mw.lim according to the verse in which ALlah. EDIted be He. $IY'"

..... AM bri"K le ...

1 ,wo }tal mm from ...nonl ,..,....... ,_

(Qur'ln: A,t-Ial'q: 2)
Th us., the tl'Stimony of 1 diJb.!liev~r is un.ccep"ble txc:ept when being a witness to a wIlL at the time of bequest wh en one is t raveling and is about to die. Only in this case the testimony of two dl.!believers are acceptable when theN! ne no MusLim$. in considerali<:>n 10 what ALlah. Exalted be He, $IY': "'O)Vu who NlW brllf"Wtl, It:ltinullf}' [Mould H 'ann} OIlnOng )VU wIwn thatll a~ _ of)Vu at IIN 11..." of Hqum - / tIuIt ofl two Jrut ~ /rPm """'nl" ,..,.. or OIhe" from outside if".u ...... 'rllwllnl IbTUllp tM land and IlK disGst~r of dlMth ,hould Itrib )VII.. ... (Qurln: AIM4idah: 106)

'wo

'"

XJIJ

QADIf'u UDlCIARy)

The tnlimony of IWO this case.

disbdkv~n i.

Itgal iztd for necessity on ly in

5- Having a Good Memory: The testimony of a foolish or a forgetful puson i. not I,(eploblt, since it is kn uwn th at l uch a ptnon makc$ many mistake, and u&ually forgets, and bt<:a~ he is unreliabk in leUing the truth. Iksidn. w!ut.....,r .... says 1.$ thought to be incorrect sill;\ may ~ O~ of h is misbkes. Yet, testimony i. acceptable from I.... pnson woo mues fewer mistakes and 60n not uwally forJet. $in~ MM is fret from both dffl$.
6- Uprlptneu: rurisprudcntially spnking, the term ~uprighlness refers 10 ones rightcousntss ~nd modcratcncSl whatever onc says or doe .

What proves Iha' uprightness is one of the conditions OflCSlimony is what Allah. Exalted be He, says in IItr Glorious Qu,'ln:
M

from,hMI ...lrom you tlccepr as

""'MUn...

(Qurln: AI-Baqara/l: 282)

And

-. And br/nllo ... I,nta /"", ju.st men from "mOllI >"'N .. (QlIr'ln: At-Jallq: 2)

The majority of Muslim scholars maintain lhat uprightness is an addition al characteristic 10 being a Muslim, A just and upright Muslim is the o~ who abides by the n ligious obligations and acts of worsh ip. obsnws the desirable deeds, and kccps aW1llY from committing Ihe prohibitw and ~h( d(les~abl( ones. In ~hi, rtprd, Sh.ykhul-Isl~m Ibn Taymiyah (may Allah ha"" m ercy on him) $a)'$, "TMfoqilu Nnifornlly ap that the Inl/mollY of the one brown to bt untruthful is rtjtCltd," Ibn Taym lyah also add"

'". The ronctpl of uprighlnl!SJ ;, valucd =rding la tach "g'. plact and pwp/. ThN$, a wilnn. mU>l bt an upright ptrstm according 10 hiJ own ptopk, fltoug/llM upright~ of tht $Dml ~n may bt ~~wtd diff=nlly by ot~r pwpk (IJwugh stilt amsidtml uprighIness). This is how judgmtnlJ C"n bt umdwcltd "moJ'If ptOf>k; orhtrwiJt, if Irstimony is rrslrirltd To rhIM wifnn!f wIto t:J1tJb!i$h IlIc rr!igiml5 obIig<lfwnJ Ilnd "bando" rllt prohil1lrtd mll/rtn, /lJ Iuu bn dont by tht Proplrni

Camptlniol'ls, Illm all rht rmimonin or mO$/ of /hem would bt ilMifid:'

Ch.!"", 7: T"nimony

73 5

Ibn Taymlyah goes on saying:

".. .It i.< advisable to acupt the tNtimony of thrue known to be outwardly truthful in case. of ne,,,",sily evCt. if they do /"101 ob~rvfI the limits set by Allah. Thus, their /w imony =y be acup/ed ;/"1 casts related to imprisonment, incidents ilmong Bedouin. or in villages where thtre ilrt no upright witnesses. H' Faqihs (may Allah have mercy on them) maintain that ones uprightness is known by two things, the first of which is performing the religious obligations: the Fi"" Obligatory Prayers and AI-Iumu ah (Friday) Prayer along with their stressed ,up"rerogalory practices. Thereupon. the testimony of th e one regularly neglecting these prayers and the Wit. Pra)",r ' i. unacceptable. ConIXrning th e one who p"rsisll; in abandoning the sUp"rerogatory acts of prayer, Imlm Abmad (may Allah have mercy on him ) says., ... Such a person;s il wicked ont,forhis persistence makes him a /"Ionob~.yant of the Sunnah (out of reluctance), and so he is always blamable.... Uprightness is also considered through avoiding prohibited acts, the same a.\ it is considered through observing religiollS obligations. Thus, such an upright person should nOI commil the major sirn nor persisl in rommilling a minor one.
Furthermore, Allah has forbidden Muslims from accepting the lestimony of the sland erer (the one who accUses a chaste person of committing adultery or fnrnicatio n without producing four witnesses). Likewise, by means of analogical deduction, everyone who has committed a major sin is 1 ~ t",ated the same as the slanderer. 0 Jurisprudentially, a major sin i. the crime which deserves executing a p rescri~d punishment in this world Or is severely th reatened against (in the Qur'An or the Sunn(lh) with a punishment in the Hereafter. These sins are like taking usury, delivering a false testimony, zind (adultery or fornication), robbery, drinking intoxicanls and other sins. Thereby, the testimony of the defiantly disobedient person is unacceptable. The second sign by which ones uprightness is known is respectability, nam ely observing Ihe good deeds and having the traits that beautify and adorn one'. character and conduct, such as gen erosity, good manners, and neighborliness. It .lso involves avoiding whatever may dishonor on eself of the ignominious and ignoble things, such as singing and comic acting. In this concern, Shaykhul-Isllm Ibn Taymiyah sal"', "... It is forbidden to imitate people sll1castically. and whoever dotHa, or

Xli! QAD4' UUDlOARY)

cmkrs SOlTIIM 10 tW I{), is 10 /IJItkrgo discrerioMry p"IIish mOll, !iller it is a harmful ad:" By means of analogical dW\I(tion, this appliu to the
TV ..,ri~. prtSt"nled nowadays. How strang~ il It to consider .inging nowadays as an art whose performers are supported and p raised! And there is neither might nor power except in Allah! thn.e . foresaid impedirmnlS preventing the :acceptability of the testimony ceaK to exist. th~ testimony becomes acuptabLe. HellCe, when the dUld mldteiI puberty, tM ins.ne puson Rgains sanity, the di$bclievcr embu ca Islam and the defiantly disobroirnt person repents, the testimony of any oftMm it to be accepted. This is because there are no impediments l i tM conditions of the testimony are fulfilled. And Allah. Exalted be He, knows best.
When~r

The testimony (If the following is (legally) unacceptable:

A person testifying in favor of his paren" and foref.r.thMll and On up in ascending linngc or in &.vor of his offspring and on down in descmding linel~. This isheause oroe's testimonylhm isdouhtful d ue to kinll a relatlw of the litigant one (($I1fi($ for. However, testimony i. acceptable from . brothcr for hili brother and from a friend for his friend accordinll to the IIcneral meaning of the verses related to such an issue and since test imony then is not doubtful.

The testimony of a spouse for t}", other [, unacceptable, for each of them is already obtaining bendlt from the other. P"'P"rty, and .lso ~ of the clo5e relationship combining both: all this makes Iheir testimony in f.-..or of each otha doubtful. Howeva-, testimony If the same time is accqHable against one'. spowe. in consideration to wlut Allah, Exalted be He. says.

-; .. b~ penl. tell/ly , tl/ndlng firm in j JUti(e, wltneua for Allah,

tYnl

if It "" 'gQi"" ,..,....,.t/vn or f'IIrtll tI and "u.tl"".

(Qur'An: AnNid': 135)

lhat la to say, if one testifies against onc's parent, child, wife or the latter testifIeS against her husband. the testimony in thil case is aa:q>bbJe.
The testimony of a person that may gel him some benefit o r span- him some hann is unacceptable. The testimony of I penon
aaain~t

his enemy if unaccepto.ble. In thl'

U7
~gard,

the gn'at scholar Ibnul-Qayyim says:

The Slwri'lIh has dtcrud that testimony iJ rmaept(ll>1e when born

by wm~ont (lglliml his/her enemy, les//tstimony be Idtd as (l pn-textlo gain benefit or (lnnft MUtlffrom on. :' "nemy through perjury.. :"
An imosity which ~ndtu ones testimony unacuptable is the c:asc of being happy when another per""" is in adversity or wrrow, Of unhappy when he is in prosperity or joy. It is worth mentioning Ihat the animosity meant hen is the worldly OM, unlikeanill105ity in ~ligion; thereby the: testimony or a b.!1;.,vcr :opinst a dilb.!liever is acceptable. Likewise, the testimony of one following the Srmnah agai nst an

innovator in ~!igion is acCtptable, since Islam enjoins Mllslims nOllO commil whalever is prohibited. In addition. the testlmony of a penon known to be a bigot and of n:t~me zealotry for his clan is nOllO be accepttd. since his te'rtimony will then be doubtful.

The number of witnesses differs according to

the case or issue testified in
If testimony oo"","rn$ a ease ofzjno:\ (adllltery or fornication) or sodomy, it is nolllCCepted unless Ihe~ a~ four mile witnesses, as Allah, Exalted be He, says:

-.. . Why did ,h,y [wh o 1I11ltdendJ not produce for it fo", wU Iten,., ... (Qurln: An . Nur; I ])

Siro Muslims arc ordrml lo conceal IRe faulu of their Muslim brotho:q .ndfO I"" faulu of those commilli nganyof tho5c sins. lhe number of witnesses
is four males.

Whrn t~imony concerns proving the insol~ncy of person known to be wealthy hut claiming the opposite, then it requires mitt rnale witnesst:s. according to t/w:budith relaled by !mm Muslim in which the Prophet (PBUH) says: ... ""tillh,,,,, wise ~11$ from amonpl hi, ptoplc wi/neu tlt.t:rt ~ and sa (i.~. thlll i'"son) has bun smitten by fXTo'eT1 y."'

:;11<1, such :as the

If lesli mony concerns Ihe prescribed punishmenu for crimes other than ~bed punishment for $Iander, drinking intoricanu, ~ry and banditry, or if it conccrO$ "i1<4 (legal ~Iribution), then il is valid 10 accept the testimony of only two mile wilnn~. Alw, in ,uch cut$, I<o'Omen'$testim(}ny is unacctptable.

7)8

XlJI QAa,.{'(jUD IClARYj

Lf testimony concerns matters other than th~ prescribed punishments or financial affair~. which men often see or witness. such as mareiage. divorce or remarriage to one's revocably divorced wif~ . then two male witnesses may testify. Shaykhul- lslam lbn Taymiyah and his disciple Ibnul-Qayyim (may Allah have mercy on them both) maintain that if testimony concerns remarriage with on es f<'vocably divorced wife. then wOmen. t"ltimony is acceptable. since it is easier for th em to ~ present at that time than at the time of writing the documents (i.e . marriage Or divorce contracts). If testimony cOnCernS properti es and transactions related therwf, such as sab:. rent ing and the like, then two men Or a man and two women are to testi fy. for Allah. Exalted ~ He. says:
~ ...t"d Itring 10 witnUllwo wi/nUln from alnOng your mm. And if thre art nol two "'en {aWli/a"'ej. tlrm It ",an and two womtn .~ (Qurln: AI -Baqarah: 282)

Thecontext of this signifies that testimony here COncerns fmancial affairs. The ~at Muslim scholar Ibnul-Qayyim (may Allah have mercy on him) says:

,=

"Muslim schola" uniformly agru tlrat if testimony conu rmfinancial affairs, then a ",an and IWO wom.n art ,uffu;ient as witnesses. The sam. applies to IrmlS<l<lion, re/;,ted to financial affairs. suclr as sales. sal" on =dit. tire choi 10 cone/ud. a sale or to cancel it. me>rtgages, granting prop"ties Illrouglr wills. gifls or endowments. Thi, also applies 10 IM cases ofguaranteeing a properly or spoiling it, the claim of slavery of one of unknown lineage, defi"ing tire ~mOUnl ofdowry or lire recampenst of KI",/' (a wife. ,.,*au for payment).""
The wisdom ~hind accepting t he testimony of women in financial affairs - Allah, Exalted ~ He, knows ~st - is that in such transactions both men and women often witneS!! them; th ereupon. th e Sharl 'ah allows men and women to testify in such affairs.
Allah, I'.xahed be He, has stated that a man's share e<juals that of two women in many rulings. such as testimony. inheritance, diyah (blood money) . slaughtering for a newborn child. and en",ncipation. Allah. Exalted ~ He, hasdemon&tr.lIed the wisdom behind thi, in His statement in the Glorious Qurln:
call

".$0 that if One of lire m [i.e., tire womtn) e ....'. tlren tire other ,..,mind her...~ (Qur'~n : Al-Baqarah: 282)

That is, if either ofth. two female witnesses forgets (any of Ihe details of what sh e has witnessed). th e other woman may remind her. This is because

WOITI4'n, by natur~, tend to (OllItt. which rrnden the tCSlimony of two women equal to that of one man, Yet. if the testimony of . woman we~ to ~ wholly unacc~ptable, this would lfad to w..ting many right s and ~ndering them ineffective. That i~ why a womans te~timOlly ;. added to that of another wom an to ~mi nd each other in case any of them forgets.

Saidcs. if testimony COII(CrIlS financial affairs. it is sufIk;"nt for th~ plaintiff to ha,~. male wilness together wilh taking an oalh. This is buM on the badllll in which loo Abbb (may Allah ~ pleaKd wilh him) said:

-71re MtsstngtrofAllah (PBUH)decmd thal lalimony(ronmning

C lues involving fin(lncioloff(lin) is ""'et>tablc of 11 IIIlIle wilnm-

logt lh u with tht 04lh of the plaintiff'

(Related by lm ~ nl Ahmad and other compilers of l:J.dllh)" In this collCerll. lm' m Ahmad (may Allah have mercy on him) said, 11 is stated in Ihe Sun""" Ihal a jlldgmml etm bf 00scd 011 Ihe leslimcmy of 11 mlllt ",,'Iness IIlong willl Iht oolh 01 Iht pl(linliJr In this conneclion. IbnulQayyim said:

... . This rllling (MU pli"g Iht tnli",on! of" m"te will1w lI/on8 wilh Iht oolh of Iht pl" in lif! in fin"nd,,1 ''If,,jnJ d<1t$ nOI '"nl",dicl Iht badith in which Ihe Prophel (PBUH) UI)'J. "The O<Ilh is 10 bf , worn by tht defend,mt."' What is ",tualiy mtant here is llial if th e plaintiff dlH:. nolliave any willlwes or proofs subslmllia/ing his clllim. thtn Iht i. nol to be dtcide./ in hi'l<",or_ H olI't'wr; il tht pl(liMliff fun <lrI upright witnw or lhe like, Ih~ ~" ... U " ot 10 Ill! dtcided in his /Allt}r untes. he is to inlrOOlI" rtmIt witness, 10 .upporl IIu claim, ,,/vng with I"king "n 0011,.. ."

"U"

If testimony con<:erm th ings chat men do nOl often s Or witness, such a5 conCH I~d female defects. virgin IC)'. being ddlowt rtd. me Mt rull [ion. childbi rC h.
participat ing in the childbirth and the like. the testimony or an uprigh t woman is acceptable. This is according to the Iladitli narrated by Hudhayfllh (m ay Allah be pleiStd with him ) who sai"':
b~astfctding,

"The Prophet (PBUH) IIccepted Ihe testimony of

(I

midwife."

( Rebtcd by Ad- D;!.nqutnt and other oompikrs of Had/lltl"

Yet. some scholars han vitwtd that this /yldl, h has a weak chain of transmitttrs.lt is worth mentioning that it is stated in the 1Wo S<ib.ibs" that the Prophet (PBUH) accepted the testimony of one woman in rulings pertaining
10 b~ ..tfeeding.

"" Endnotes
1 See AI-lkhtiydrJI AI-Fiqhiyyah" [pp. 522-523] . 2 See Ih. footnote in Ar.Ra"'ll AI-Murb;' [715801_ - 3 Set the footnote in A ... /W ....d AI-Murbi ' ]11581 I. 4 Al-Hlkim (7124) [198J I n<! Al-Bayhaql (20579) [1012631. 5 Set the footnote in Ar.Rawl! A/_Murh;' [71591]. 6 See 'Majma 'u/-FarJ ..J' (151356).

XIII QADA'QUDlCIARy)

7 See th< footnote inAr-RilwdAI-Murbi' [71593-594[. 8 See 'Majma 'ul-FarJ ..J' (151356). 9 Th.. Witr PraY": A , upr'oroptory pnyer con.i.ting 0( In odd numM' of rnl" an. [one, three, five, 5eVfl1, nine. eltven <>r thit'''''''] l nd it is p<normed any time betw n the 'I,M' (Night) and the Fajr (Dawn) Proy.... 10 50. the footnote in A,rRa"'!1 A/-Murbi' [71594] . t 1 See AI-lkhriydnll" (p. 358). 12 Su It.. footnote in Ar-&l ...... AI.Murbr [7/604J. 13 Muolirn (2401) J41l.l4J . 14 Su Ill. footno te in A,..Rawd MMurhr [7/611]. 15 Mwlim (4447) [6/2301. AM DiwUd (3608) [4/241, Ibn M ~j.h (2370) [31122]. See 01<0
At-Tmni<ih! (1 3<17) [3/6271.

16 MlIdim (<<45) [61229]lIld A/-Bul:hlri (~552) [8/261!].

17 Ad-DI",qutnl (4510) [41149) ond Al. S.yhaql (20542) [ iOll5-il. 18 Al- Bnkh1rt (88) [11lH 1.

CHAPTER

Letters among Judges, Testifying to Testimony, and Taking Back Testimony

A judge may send a letter for another judge if ne<:essary; for example. a person may be living in another town other than hi!; and he has a right that he cannot substantiate or claim except in front of tJu, judge of hili town. In this case, the judge of the town where ru, lives is allowed to send a letter to that of the other town to complete legal procrdures. That is beause it may b.e difficult for
witnessa to travd; be$ide$, they may ~ known (concerning their uprightness) in a town but not in the other. Due to the above, it would b<e difficult to substantiate one's right or claim without a letter sent from a judge to another.

Muslim scholars uniformly ag""" upon accepting the letter sent from a judge to another for proving and establishing rights. In this connection, Prophet Sulaymln (Solomon) (PBUH) sent a idler IQ Bilqls; ' the Prophet (PBUH) also sent letters to An-Naj1shl (Negus, King of Aby$sinia), Qa)'Pr (Caesar,

XIlI Q-mAUUDlCIARYj

the Roman (m~ror) and to KisrA (Khoseau. King of Persia) inviting them all to embrace Islam. He (PBUH) used to ~n d letters to Muslim governors in Islamic countries as recurrently ...,Iatn! in man)" h.a4iths. All the above prove the legality of ~ndins letters among judges for proving rights and the like. It is worth mentioning here that the letter . ent from a judge to another is acceptable when ...,lated to pwple's rights and is unacceptable in cases of the limits ~t by Allah (i.e., prescribn! punishmen ts), such .., the p rescribed punishments for committing zi"<l (adultery or fornication) and drinking intoxicants. This is based on the fact that such divine limits are Allah's rights which are ba~d upon concealing the fault ofth"",,, violating any of them and their p...,scribed punishme nts ore not to be. applin! on suspicious proofs.

The letter sent by a judge to another is one of two types:

The first typf:: The letter sem by a judge including a judgment of his to be effected by his counterpart. In this case, the letter is acceptable even ifthe two judges aro in the same town. since the judgment of a judge is to be applied whatever the case may be; otherwise, judgments would be suspended and dispu tes WIluld increase. The second type: The letter induding whatever the sending judge has proved and sUNtantiated to be w.kc:n as evidence in giving the judgment by hiscounterpart. It is stipulatn!, however. that the distance betw...,n the two judges is equa l to or more than the d istance that entails shortening prayer. That is becau~ it is an act of transfe rring a written testimony 10 the receiver, his counterpart; thereby, it is impermissible when the distance between the ~nd ingjudge and the receiving one is d"",,,. The WIlrdingof sub>itantiation may be as follows: "It h ... ~ proved. to m e that so and so owes so and so such and such a right." However, sub>itantiation is not a judgmo:nt; it is eath~r informing the other judge about what has been proved.. In this connection. Sheikh AbdurRahmln Ibn Qlllm .ays:

"It is permiuible 10 $end ~ lerrer 10 ~ j~dge cOJ1lui"ing what hill bee" proyed 10 anOlher j~dge when Ihe dislance belween bOlh is equ~1 to or more Ih~nlhe distance Ih~t en lails shortening prayer, eV<'n if the sender yiew. that it i. impermiuible 10 iu~e aj~dgmtJ11 0" the basis of wIJal has !>ten proved to him. Th is is because he only informs the recej.,.j"gjudge about what i. proved and Iht latter may iuue his j~dgmenl according to what has bun proytd if he yie ...s ~ucIJ proofs as y"lid." '

7-0
Furthermore, il is permissible for a judge to soend letter 10 all unli;pified Judge. Ihe wording may bt as follows: "To whomever realve5 my letter of the Muslim judges," without spifying a certain .,.erson. Whatever judge receiVC$ i uch a letter has 10 accept il alnce it i~ ~nt from I judge 10 another judge. Thus, it is the lame as t he case when the letter is sent to a certain judge. TI\(re are twoviewJ concerning theaccrptabilityof ti"lt ktler sent 10 another judge. The first vi.-w is Ihal lhe Judge must call two upright wi tnesses to testify to il. Those two wil~ Ire to dri"ute its meaning Ind the rulings related 10 what il includes.. The second view is thlll it is permisslble to :Kt upon a lener unt (rom a judge IQ another when Ihe receiving one knows the handwriting of the sending judge, cvtn !fthcre are no witnems. This is onc of lhe views reported to be adopted by lmlm Ahmad. Howeve r. at the present t im e, the formal 5C1Il of the court is sufficient and takes the place of witnesses.
In this regard, lmim Ibnul. Qayyim (may All ah have mercy on him) ")'5:

'7M Prophel:' Companions haw .. niformly aguM upon ""ling IKCOrriing ID mallen prowJ. aM I'Orrhd in 0 let/er SOIl 10 om: amllltn. The Wlm has ,,"n obsnwd by ~ Muslim CAliph It is MId/ known Ihal pcoplealways depeM on whal is included in manu.nipts and lerrers; iftht)' 1Wr? not to acl upon whatlhose writings inc/u.u. the Jaws ojSharl"ah (Islamic Law) would nOI be in e ffect."
lmim Ihllul-Qayyim adds:

... Muslim cmiplu, jw/~s, flIlm Ilnd gowmors haw bun ""fing ..pon InIOs fhey ..sed tllstnd 10 coch OIher. They would nOl inpm persons carrying sueh letfen Ilbo,,'the content fhey included IIOT n!Ad lhem in fhLir prtwn ce. Thi$ U the woyaa:ording to whidl pw.>plt used

/0 behave during the Ii/elime ojthe Prophet (PBIlH) unliJ pram!."

Ibnul-Qayyim goes on saying:

U known with calain,>, thal il is of a Ctrftlin ptl"llln, it bu.,,,,.. the same lIS o.scrltring 11 cnlllin sf'm'h to him. ABllh, &Olted be Ik, has

. . The p1-Irpose intended here is that the judp nu/ving the letter "'out be certai" 0/ the ptl"lOn who ""5 written It. 1/ Ihe hllndwriting

",tuIe a distindion belwun tt'UJ' .mbe.. ""ndwrilingfrom that of the <llhn, ,Ioe w".,. as (Vf."r)"neJ form is distinguished from others'. &sides. wilnWtJ....:Iy dte/ort undoubled tejti",ony ,,"sed On that a

certain hllndwrit;ng is urlainly of so and so ... 01

XlII ~UUDlaARY)

Sheikh Taqiyyudotn Ibn Taymiyah (may Allah

ha~ 1lKIq"0Jl

him) says:

". .. And whou hAndwriting ~ rtcOf"iud by w"y 0/ con/fssion, . tylf of writing or A1"";IIIOny, should be acted upon ... As fortestifying to. testImony, it refers to a case when IOmeone asksanOlher 10 testify to 11>.. testimOf1y of the former. He may .... y. "Testify to my testimony thal. ;' or "Testify that I bear witne5s that ... and the like. It, in facl, bean. the meaning of tq)resenlalion wl>..re the firs! witness is rd"ermJ 10 as Ihe origin~ w,Inas and 11>.. OIher at the 5ondary witntiS. In Ihis regard, Abii ' Uha.yd .... id. "Muslim JdtoI.lrs from tht peopk of Htjru:' and IrAq uniformly agree on accepling tilt mlifying to A laUlllony in C"IQ rt"'ltd to jinanci,,/ "jf..in." Imlm Al;tmad was asked abou t testifyi ng to a testimony, and he replied saying, "... /1 isperrnj~;ble." Neces.sity, in fact, requires accepting testi fying to a testimony. If it were unacceptable, testimony would not be in effecl and judgments would be smpmded. In addition, in somf(:a~ 50me proofs maybe established bte or wil~ may die befort le5tifyi ng, which causa hum to pw pk and is considered a ~ difflCuJly. This is why il is obligatory 10 aept leslifying 10 testimony the same as the originalle!ltimony is ' ecepled.

To accept testifying to a testimony, there are many conditions that must be fulfilled:
First: Th e original witness must give permission 10 the secondary witnes5 to lestify 10 his testimony, since testifying to one's testimony mellU represen~tion that is 1 be donf only wilh ones permission. 0 SKOnd: Testifying 10 testimony must be in cues wh~ it is permissible that a judge Knds to anoth er as menliolled before. namely, in ca$t$ where peoplis rigtlll rather than Allah's limitJ are eoncerlled. Third: When the testimony of the original witnts.s is unallainable be elUS<: of hi. death, illn ess. ab,ence in a place far away, fear of. ruler and the like. Fourt.!o: The eircum$t.nc~ hino:kring the testimOfly of the original wit, ness continue unl;l lJivlnll tl>.. judgment. Fifth: Both 11>.. origilllll and the represcnllti~ wit nesses mUSl be eharactcrned by uprighlness until the judgment is issued. Six: The tq)~ntllive wiln~ mmt declare the identity of the original witness on whos<: behalf he i.! as.suming the I'C!iponsibility of testifying.

Chopt 8: ktt<r1 .mong Judg. "l<stifyin& to Tatimony. and ...

As for the rulings on taking back one's testimony,

they are as foUows:

If tile witne~ in cases p"rtaining to financial affairs take back their testimony. the judgment does not become null. sine/: it has ~n al,..,ady issued; besides. the plaintiff h,.. become entitled to take what lIas been testified to bdong to him. However, the witnesses are accused of trying to nullify the judgment, so tile judgment is to take effect and the witnesses are to be fined the equivalent of what they testified to, since they thus unlawfully deprived the real owner of his riglltful property. If tile judge gives a judgment according to tile testimony of a witnes.s and an oath (taken by the plaintiff). and the witness lakes back his testimony, IlIe w itn ess is 10 guarantee the whole prop"rty in dispule. for the whole d aim is hased on lIis testimony. Morrover. the oalh is to be taken by the plaintiff and it is not necessarily acceptable against the otller party (as proof). since it is only on e of Ihe conditions for giving the judgment. If the witne~ take back their testimonies before tile judgment is issued, the judgment is t o be cancelled and the witnesses are not accountahle for guaranteeing any thing. And Allah. Exalted be He. knows best.

Endnotes
I BilqlJ.; also Balki" 1M Quttn ofSoba' (Sheb.: a place in Yemen): <he ruted during the

lif<'1ime of Prophet Sulaym1n (Solomon). and 5he and her people u=d to wonhip
the sun. 2 :;.., the fOOln<>lo in A rRa",1I A{Murbi ' \715>601
3 :;.., the footnole in ",\r.RaW!l AIMurbi' !7Is.6I s.6l). 4 :;.., Majma 'k{ FarAwd" (35166, 428 1. S Hej .. (Hij""): A '<gion of northwnt Saudi Arabia on the Gulf of Aq.ba and the Red Su. It induda the citi .. of Mecca and Medina.

"."re<!

CHAPTER

Oaths in Claims
Taking an oath is one of the legal procedures, for the Prophet (PBUH) said:

... The oath is to I>e sworn by the dej ndallt."' "

The~by.

the oath is to be taken by the defendan t jfth., plain tiff does not

ha\'c any proof against him. The oalh dQel; e nd the dispute but not annul the plaintiff's right. That is to say, if the plaintiff establishes evidence after the cast i. ended, his proof is to be take" in considera tio n and the judgment is

d"".

to be in his favaT. Likewise, if !h" defenda nt takes back hi. oath and returns whatt"'" right he owes to the plaintiff. it i. then wnsiderro acplable and it
is perm issible for the plaintiff to take what he d ai ms to be h is.

Oalm are to be specifically sworn concerning people'. rights, which is not the cast concerning the rights of Allah, Euhed be He, such as the act. of worship, and the prescribed puni~hrn ents. [f a Musl im says, "[ have already paid the z"l;Ah due on me; or -The re is nO atonement or expiation due on me; this is acceptable from him, and he is not to be asked to take: an oath , The

XII[ QALl.:fUUDlCIARY)

.same g~ for a Muslim who denies lransgrusing lhe limilS se! by Allah; he is
nOl 10 be ~ to taU an oa!h.linc:c il is de$lnble 10 conceal peopk's hults. 8e$lde$, IrlOmeoneconfesses lransgrusing. divine limil. then likes back his confession.lhis is to be acceptable from him .tId he is to be: rdClKd. Thus, it is WOI1hier not to ask such a pcnon to take an OIth without havingconfesKd

TakIng an oalh i, worthless in claims rdatingto people's rights. acept when the judge orders the defendant 10 swtar upon the rrqucst of the plaintiff. In this case, the oath is to be In the ronn of an answer to the plaintiff. Taking an oath i, to be done in the uxmbly of the judge. An oath is valid only ir sworn by Allah. Exalted be He. since taking an oath by other than Allah is an ICI polytheiNn.

or

o When taking an oath by Allah. it is JlIff'ldcnt 10 say. "By Allah ... which SIlffices as an oath. Taking an Oioth with these words has bn mentioned in many positions in I~ GloriOllS Qur'ln. Allah, Enltrd.

be: He, 51)'5:

": """d they IWflIr &y Allah thdr ItrollgeJl f)Qt/u.. . "
(Qur'ln:AI-An'Am: 109) And He says,
~ ,/J"d

Id them both IIW'/Jf by A//ah ... (Qurln: AI-Ml'idah: 1(6)

Healsosays:
~...fo"f lemmOllja

(6Wf'IJriIlS) '" ItJ1lJh ..." (Qurln: An-Nur: 6 )

Besides. the word "Allah" il a proper name which iodiales one or the
Best Narn6 attributrd. 10 none but Him. Eultrd.1x Hco A solemn oath is only taken concerning matten or great importance, , uch as a crime that d,," nol nessitale legal n:tribulion or emancI pating I slave (at the time or slavery). In such caso, the judge may alk the defendant to swear a solemn oath, such as saying: ' By Allah, o th er than Whom there is no deity, the Knrnver of the unseen and the witncs.st:d, the Predominant, the Harm-Inflkting, the BenefitGiver and the Knowu of that whkh deceives the eyes and what the

brtasu conceal.

d?p". 9: Ooth. in Claim.

In ca~ one owes a righ t to a group of ~ple. one is to take an oath for each. for each ofthem has a right upon the one. which is regacdNl as separate and diff"rent from the othds right. Howe~r. the defendant is to take only on e oath in Ca~ those ~ple as""e upon that, which then is sufficient. for they have ag""ed to disclaim thdr own right.

'"

Endnotes
1 At lirmidh! (1345) [3/626).

CHAPTER

~ ,.. 1.1

Confession
/lIrisprud(ntially, con fo:Mion rc:f( r5 to acknowlwging tllat 0'-": owes a righl to someont (bt.Jn fact, conk-ssioll is just an act of acknowl(dging rights which olle 0Wft olhers; it doa 1101 ntabli~h a 11(\<11 light. III this COII,(rll, Shrikh T..qiyyud-Dln Ibn Taymiy.o.b (may Allah hav( m(ICY on him) said:

"If wm_ ;"ftmru (a ptr"SOn) .woul wh", MOwt!S olh=. IM" he is "C lPlfusor, ""d if he i"forms (a ptTJO,,) aooul w/,ol olh= 01..' him,
rM" he is a plaiM'iff /" ",,",c somro"t ;"forms "/.o,,r righl. which a pt'IO" owu orheN. while he io eMrn.",M with ouch righ,s, hr thus iJ rtgordtd as ~ mert' reporlcr. Howt!vtr, if lit iJ not cMtn'stM with meh rights. ht thm i , regarded <I. <I wiIMtS). Tht judge, til t agcMt, the s<ri~. Ihe guanli,m aMd the aUlhor;ud pcrso", un 01/ cMtru.led wirh wh"Uvtr jobs they ~rform. HO""'vtr, if Ihey ~n: di.missM from Ihtir "fficu ~nd inform <lbo.. r what Ihey kn,w, rhis is "", corui~nd

"c"n/mi,,", it IJ ,,,thtr ;"form;"g:'

752

XIII QiLM'UUDlClARy)

Ibn Taymiyah then adds

~ .. Confessjon d<N!; not establish a ntW right; rath~r it brings right into light IInd inform. ptople abour what ont owes oth~rs.

There are many conditions that must he fulfilled to make the confession valid, one of which is that it is valid when the confessor i~ legally accountabk Hence, it is not valid when made by a child, an insane p"rson Or a sleeping p"rson. However, confession is acceptable, and legally binding, from a minor providM tbat it must be within the limits specified fot him in commercial affairs. Also, confession must be ma<k with one's free will. That is, confession i. not acceptable when one is fot"CM, except when confessing to a thing other than what one hili bee n forcM to confe.. to. Moreover, confe.. ion is not valid when the confessor is interdktM; the confession of a weak-minded person is not legally valid. Confession is not 10 be made to a thing in other people's posse..ion or under other people's guardianship. as in cases where a stranger confesses (claims) the paternity of a child or confesses to an endowment which belongs to another person or is under someone dsc's guardianship. If the confessor daims that he has conu,ssed involuntarily, this is accepted from him provided that he introduce. a proof substantiating what he elai ms.

The ,onbion of a sick per50n that a prop"rty bdongs to anyone other than th. legal heirs is legally binding, since he is not ~usp"'ted of showing favoritism. Moreover. when one is sick. one is keen to return whatever right. one ow.. othen. If someone daims that another person owes him something and the respondent acknowledge~ this person's claim, the r~spon<knfs acl<nowledgem~nt i! acceptable and binding as well, and it;$ regard...:! as a confession which he is bound to. This is according to the IIadfth of lhe Prophet (PBUH) in which he said:

"Thtre is no excus. for th t One who COnfellt:S.,.J

Confession is valid and legally binding when d~lared with any wording indicating confession. For aampl~, the respondent may say (to the plaintiff), "You have told the truth: or "Y~s: (as a confinnation to hi!

daiIn) or "I confess to that."

m
I! is valid to exclude hal f or less of the totol am ount (or whatever one own another) when confessing. That is to say when one eonfessQ that heowes someone ten (of such and l\I(h . thing) eu~ fi~ ofit, he is bo1md 10 gi~ him fi~, The style of exclusion is used al many positions in the Glorious Qur'ln; Allah, Exalted be He, says,

hI rtm ..i"ed 4I,"ollg thl m a thousand ytarr mlll usfifty ytan. ~ (Qur'~n.: A I-' Ankabtll: 14)
In addition, many idtolars ..... intain that it is ~rmissible for the confessor 10 adudc more than half. To be valid, eulusion in confession must be said nonstop, If the confessor says. "I owe soandJO one hundred (of an article, for example): th en he pallKS though he nn continue, then he says. "profitless Or "on cmiit," the confessor then is bound 1 gi~ him one saleable hundmi 0 on the spot Besida, whatever thuonreuor says after his pause is not to be liken into consideration, since he thus trieS to remove a right which i.! already bin di ng on him, If someone sells something o r gives it as a gift. and then he confCli$(l thatlhis thing ~kmgs to ~ne elK. his wnfeuion is 11()( to be accep!ed. M~r, neither the we nor Inyol her transaction "ebled to th is pro~rty becomes null. since he con fesses to something that belongs to someone else. In add iti on to this, th e ron fessor i.! to pay th e value of the object to the original owner in wm~ns.t ion.. 5'I>(e t .... I.ltn has bcm deprind of his righlful property. Confession is valid and legally binding when il concenu a thing the co nfessor does no t exactly specify, which could be Interprded in two ways o r more. all be ing the same for th e confessor. If a ptBOn confesses $<lying. "I owe so -and -so sU(h and such a thing.' his (onf=ion is valid a nd kplly bind ing. Yet he is 1 be askfd to 0 a plain what be intended and make himself d.-ar 50 u to be liable for il. In CIlM' th e oonf..nor ",fuses to point out wh at he intended. he is to be put under arr.." until he point . out what he Intended. Thi . l. bcc:a~ th .. oonfeNOr mu,! make oor what h.. h.as inte nded 10 say, for it is I right lhat he has 1 clarify Ind give to its owner. lfth .. ronfnsor 0 dcnia knowing the object to which he hu ron fesKd. he is 10 take an oalh confirming thal . B~ide ... he is 10 pay 10 il-s o wner a fine equal to lhe In51 value of Ih~t object. If Ihe (onfessor dies before explainin!! what he has intendrll, h iJ heirs Ire not to be responsible for giving it to

~... tm d

xm QADA' UUDlClARY)
its owner, even if the confessor has left an estate, for that thing might lx something other than a proputy. If someone s~ys, "I owe so and so a sum less than one thousand; it is to lx interpreted as having intended what is less than the half. If someone says. for examp\.e, "I owe so and SO an amount lxtween ooe dirham and ten: he is to give eight dirhams to the owner since this is the meaning he has intended; eight is the numlxr lxtween one and ten. If someone says, "I owe so and so an amount from One dirham to ten: one is to give nine dirhams to the owner, for the maximum number (which is ten here) is not included in what is intended by the confeliSOr. Besides, some scholars maintain that if the extreme limit is of the same kind of the thing intende<l, it is to lx considered a part of the total; otherwise, it is not to lx included. If someone confesses laying, '"The space between this wall and the other wall belongs to SO and so: the two walls are not to lx included, for he only has confessed to whatever is lxtween them. If someone confes!>es that a treeor some trees belong to someone el!>e, his confession does not include the land. Thus, neither the rightful owner of the trees has the right to replant them in case they are removed nOr does the owner of the Land have the right 10 remove them. This is bause it is obvious that the trees ha"" lxen rightfully planted. If someone confesses that a garden belongs 10 someone else, his confession includes the trees, th e buildings and the land. since the garden refers to all these things. If someone confesses owing someone some dates in a bag, a knife in a sheath, or a garm ent in a wrapping, his confession includes the enveloped object (the dates, th e knife or the garment) rather than the envelope (th. bag, shath, or the wrapping). This i~ became the enveloped object and the envelop. are not the sam . for the form ..r does not completely absorb the latter. Besides, the enveloped object and the ennlope do not necessarily lxlong to one person, and confe:;sion i. not binding in probable cases where there may be more than one Owner of the object.

If someone confesses saying, "I and .o-and-so share the ownership of such and such an object: he i. to ddormine the shar~ of his partner. Some s.c:holars maintain that in ~uch casts each partn~r is cOMidered

a..pte, 10: Con~ion as having an equal share according to the general rule stating that "the partnership in general entails having equal shares" , Allah. ExaltM ht He, say"
~ ,theyshGn G

third .. ,"

If anyone owes any right to oth...,;, he must make a confession Slating that when necessary. Allah, Exalted be He, say"

who MW !.elievtd, be prsistently standing firm in jus/ict, witnt&Sts for Allah. even if il M againsf )'{Jurstlvts...
H

~O )'<)11

(Qur'an: And He says:

AnNi.~':

135)

-.. .and let theone who hoslheob/igation (i.e., Ih"d"btor) die/Gle. And let him fear Allah, hi. Lord, and nolleo...., anything out of it. Bul if Ihe one who ho. the ol1ligolion is oflimited undentanding or weak or unol1le to dictate hinuelf, then Id hi. guardian dictate injll$lict ... (Qur'~n: Al -Saqarnh: 282)
H

In this regard, in his book entitled Al-KAjI (The Sufficient), A1-Muwaffaq said:

".. . Dictation in this ","cse means confession, and th e judgmenr musr be issued according to the confession, for the Proph er (PBUH) has said, : .. 0 Unays! Go /0 the wife of this (m.:",) and if she confwes (that sh e has committed adultery), then stone he. to death:' Besides, he (P8UH) ordered that Md 'jz and AI-Ghclmidiyyah (a woman from the tribe of Ghdmid) be ston ed to d, ath after confessing that they had committed adultery (in lWO uporau Cales). Moreo"ef, ,;nee Il judgment must N given according to the substantiated proofs, then it is worthier to be gi""n by "irtue of an undoubted confession"
And,.1I praise ht to Allah, Ih~ Lord of the Worlds. Finally, gentle reader, h ere is an abstract of the Islamic jurisprudence between your hands, and I .",k Allah'. Forgi""n, .., for whatever mistakes o r ddec!. may ht herein. I also invoke Allah to grant us.1l benefit from whJI.v~r sound m.lters are in it, aod 10 guide us .11 to the useful knowledge and righteous d",ds ,

756

XJII QAL!A'UUDlOARY)

Endnotes
I See"AI-lkhliy4rdt" lp. 527). 2 AI-Hili, l\m Hoju <;aid. " It ha. no origin in the Sunnah. Beside . il' meoning i. nOl ron. idcrfil 100aUy <or,..,,1." s.. Al-Sal:h.l.wr. book "AI.Maq~d AIHas",,,,h" (!31 !) and Al " ;h1nl" book "Ki<shf AI-Khaf6'" (215! I) . s.. also "AI-..... nlr A/.Mnrfo ah" by
Mulll All A1.Qlrl (383). 3 Muslim (+4(16) [61198].

APPENDICES

GLOSSARY
NOTE: For easier ~ ..~h forth. t.rms beginning with "'AI ' "Ar_ "Ad ' "As_ ' etc. omit them ... they .~ in "'rabic ~uival.m, to the article "the", For exom pi., !<'TIlli;}" AI-Safl will I>< (""od under loner "S", and Al-W..Uah nnok, lelte, MW',

A
AI.Amdnah, in A .. hie. <oHi .. the m ning> of hon ..ty. tru.t,

and <>bed;"""" It can .150, in <omat, mer 10 the obI igOlory act. of worship ordained by Allah, ouch Prayer, F tin g, H~jj
(Pilgrimage) " .
Tbe~r

,hi.

'The MIini an He\p<1'!I; the inhabi,ant. of Medina who h. d l epted Islam. and oupporti tll< Proph<' (PBUH) and . n the M~Mji'':m (,h. Emigrants) upon lhoir . rrival .1 Medina,

"Ari,.,h ~rmission for I><nefiting from an artick wh O': not

i, ~iMibk, . nd thrn th. oorro",.. d ulid.... main> until it ;.

returned to its own ...

'Awl

An in the nurn "', of mar .. ol inhe ritance ond. d .cr.... in their amount. oaocding to the descrving I'lrh .

i"",....

B
Bilqlo The Quren of Shtbt (a place in Y.."en); she ruled during tht lifetime of Propn.t Sulaymin (Solomon), and she ond h...- j>>plt uotd to W<>r>hip the 'UT>.

c
CoUedi"" duty A rdigiouo duty which i f wllkitnlly fulfolled by..,.". Muollm"lho _ will not b. K<OIlnlablo ~ n obligation. and ~ b-omeo

ro.- ...

an oct of the Sunnoh for thorn.

Dhjmml
Dinar

A I'IOll -Mu.iim liviD,l!

Pnand undo, llIe proIe<li<>n of. Muslim ".1.

An <>Id A... b coin ltlat ~u als 4.25 gram. of gold.

GIoowy

760

Dfr-Jo

DiytJh in Anobi< .......... compensalion papnoenl for murder or III injuty, mainly InCanI "blood money': and il an ..... m,.... indemni'Y".

,,,-

F
A och04r 0( hJlmk Iyri.prudtnu.
A ltgol opinion i1&fd by. ",wftl 10 Muslim KhoIar ope<~liud in
i ..uinM legal Nlin!!'lln ... JpOnH 10. qunlion on. poinl ofllw

Islamic Law.
lMy IlK Abrnad. AIKl DIowtld, AI.Tlrmidhl AnNad1. 1110;1 Ibn M'jah.

G
~(U.r-IIiIr)

blrdUh rq>ortrd. bp- ,.... ..... I\IrnIOr .1 n f t ) one ..., of !he

"....

chain of tnnsmiu\oll.

H
A woy 0( selling \IoN 10 bo pn<11c.rd I>ri:>rt ldam, it _ .... thlt ....htn the bu~ th,.",.. I ItO"" I l I ~rllin rommodity displlyN fo r .. le, h" h.. to bYr it I t th'l"l" dKid.d by the ",,11. ,.
k is. Mdlrh w"'*,baln oflftll$mllflon is linh-d to thr ourolion of on aUlhoriIy with WHk nactltudo. orld th. bodHh is 6vm Kttntricity ot bkmi$h.

m.

.......
HlfrM

Tb< ~n of. dtb! (""" tloe llobi~'Y of the dobto.. \0 !he 6.bility of aJ>OIlwr pc-non.

Htju (.... UijhJ A rqion of northwnt Saudi "robi. on tM Gulf of Aqaba and
Tb< PTophot. Immigrllion 10 Mf<Iino.

I
lj~ rah is d.flnrd 11 follows; I lOll .. f<)r ' lawful idmlifled u"" of . ith .. on identified p...... nt or deK'ibed ontidpo.t<d thing. fo, a specifoed P"I"J'OK and for 0 known period 0( lime. or (. hlrinll ogretmont) for the perfornu."". of 0 "'rllin oerv;a, in mum (or

spa:iftCd COlltpt.lloIIion.

A Summary of Islamic juri>prudrn

rjJiJr4J (kpl reasoning Ind

dJs.cnllon)

A~

ir>dep<1><kn1 judgm<n! in a lrgol question, haS! on th. in!.,-, pre!a!ion alld application of the R>ur Foundations, the Qur~n, the Prophel's Si.nlUlh, Consensu. of schob .. and Analogical D<duction-

114'

The polenl husband', <);llh no! to h."" .. xual intac<>u~ with hi. wife for artain ptriod. Ihi> pttiod is spteified by four months or mo,..,.

rm4m (Ill pra)'H)

The j",d", is the one who lea& the conSptional p",y<r. A usuriou. kind of transaction in which a sdltr ..Il< a commodity

'/ndh

on credit to a buy<r . 1Id then buys it from him . t th< iaIJ>< tim< .t iow<r price. For <.ompl<, trad<, .. a car fOllWtnty thou..,..!

n.

pound&. on credit thm buys it from the same man (who ha. just bought ~) Iorfifl<'<IJ tl>ou<and pounds cub. Thus, the original buyer owes tht sdl tw.nty Ihousand pound. to be paid 0111>< d"" timr.
It refen to the equivalence betwn th.e two partn .... in both capital and W>or: th<y .quony particil"'te in the hwil>HS. Individual dllty
lsl~

A religioll' duty who .. obligotion oxtends to .""ry Muslim. VaginaJ bIoeding OIhthan menstruation.

J
A term ,ef"";ng to animals that e. t impurili ... Fithting in the Cauoe of AIl.h A tribute 0" tu required ofnon-Mu.li"", living in "" I.lamic .tate exempting them fmm military ... rvice and emitling them to !h. p!'OIe.:tion of the Islamic $!alt. COI\C\I"...nlly, Z>kdh i. nol akn from thrm, being on obhgotion only upon Muslims.

K
A CO"" relat.d to ,I>e n.dlng. "" inh .. ~oll', In .hls cOS< ,I>e deceud luvn neilher de=ndan" nor ~ndanl! ( .. hei,..). The KhuljltH Ihe Seccde.r. An hlamic radical O<ct who bmke awa y fmm tbr reign of 'All Ibn Abii DUb, the Muslim Caliph then, and murdered him. Th~ir f<>llowers believe that the Mu.sJim who ~ommits a major >in is disbeliever. They . 1"" cor.. and revile the Prophef' Componions .nd deem tbr blood of Mudim. violable.

(Al.KIm<lriI' i.e.

L
n..
Lawgivu of SJIOri'an (Islam;'; Law) is Allah, E.xolt.d t.. Ho; the wm can 0100 refer 10 the Prophet (PBUH) as hI' n"""

orda ined but what was reveak<i to him by An.h.

Lujalan rd'. .. to a")')",,, property, excluding animal<.. fou nd by scmeoo._

M
Manljpoh

The w<>rd "'"ffihah in Arabic indicat. , .....,.. hing gilt ... 10 be mid. uS<' of111'0 retu'ntd to it< OWn".
It i. whale"'" word, d....d, approval or lllrihte,

Morftl' (traceable)
bodllh

!,",cM di r tly

MCX to 'Il< Prophet (PIIUH) with. conntcttd Or d i><:on nectM

chain of trm.ml .. ion.

Mllhqd/

A .,.ndOl'(I me u... that equal. 4.25 gr.om.

MuJi<lMra/t (Sf''" loll ... ) p&rtI>tt'SItIp

Juristically. muJ~raboh (>rem!..;",,) parm."hip m.in, giving, Ut,.in . mount of money \0 ",her, in ordor to trade with it in ",turn f<>r "ore in th. profit.
A non -con,,,,,anl who >h.= in ca.. of pn:>fl' ."d does no! .na..:
in case oflo ...

,,,.1<)

Muh../1iI (In con-

Mu /i4l111 (tn mo, 'Ioge)

Th. on .. who "",cri ... 0 woman who ha. bun irn!Vt><.bly

divOTC.. d thn-e time. to make hor lawful for h<'r exhu.band to remarry. Th. cxhu.b..nd <>f tn. woman whom n. ha. irrevocobly d ivorad (Lo. ho divorc. d 1><, Ih re. times) ond see" r<rn..-ry;ng her through mubaflil morri.gt whi<;h i. unlawful.

Muh rim

The o~;n. state of ritual ron""ralion for Hajj (Pilgrimage) or 'Vmran (Lts.tr Pilgrim.ge) Ono in a .!ote of i[u.:m. i.e. in utat~ of fonif>cation agaln.t illtgol sexual ;n!.",oo,... and imm""lity by virtue of valid (current or pr eviou.) m,maS"

' 63

A Summ .., ollohmic: Juri.!'....... ":,,

A .... y of "dlinl uoed ~o be pnocIiud before l.tom; it m..". IIw ... """ ,he "")'Cl" touche. oomtthi", dispLoycd (or saI<, he n.. 10 buy it .t t!>c pri'" dmdi by th~ ..n.
It ... ft.s to Ill< proc ... of re-dividing the .:sate In cue lesal hoti.

din belote the division of tht inheritance of th.< fiN! deccaKd. In .uch co .., the in htritan", is to be divlded in,o

twns

ronsi<kn.ion I'" &.th of that lopl hrir.

A ... y oI .. Uing wd 10 lit pracli<l btfor. ldam; it mtanO that when the bill'" throws _ning to the M'llcr. It.. bur<. hu to
buy it allhe pri d<ddNi by the od1 .....
Mu s4qAA lJ defintd ... giving pl . "ltd o r uopl.nted , ..... aloog with. pit oIl."d 10 oomeone 10 pla nt them ,h ei n, wal them. and I"f'fonn the """..... ry wotIt unlll they bnr fruiL Tht far ..... Ihm i. lO be gn-en opedfied ilia... of Ih" fruils oIlheoe t-s. room on ulU(lifotd (Wt olthe land, while''''' ...... pp<S
Io l ~rown ...

A won n In I "'.,. of ;Ui/!dd.u. (i.r. I """""" hIving ""Sinal bl ding oth.r dton menstrultion).
Mwl~"'<lli' (con1I.lIouUy rOC1l'rut) ll!>41U.

It is /iIIdlth rtpontd by large number nl n ..m .... woo.. ~.nt llpon 1dli"l! lie i. inconcriv.bIe (this condition m~SI be rm1 In thunti'" choin from oh< beginning 10 thund).

MIWIN <ih il <kilned I . giving 1 land

givins I Ilnd
t~n

I<> ..:>nM"On~

-Ions ,..;th .....,. ....... to JOmt<>.....

to rul1inor or 10 plant tbetn

and ,okt CUI' of ,.... plantation in .mm for I ~ifiN po<tlon of th. h arvest. from an ~n.pifotd pan of the IODd. ",hil . the rest i, for lb. land","".,,-.

N
An illqpil"'MaClio>n buod on ' rid throu&h which Iho boror do...iYtd and ~ by thr .... if"'w OUlbidding of . fakr buy".

N4M>(lntbcft)

A. far , hc(t iI conmtd. ,he mlOlb rricn 10 Ih.

min j m~m

. ""'" nl of property ~ ling which enl.iil elutinS ,he prescribed I"' nlshmmt, nlnlC"!y ruuing off oh< lh itf's h.nd.

Q
"Ib. dirKlion of pr")"" , namely toward. th. Ka' bah

,,

R
11 is tM distribution of the remaining portion of eslat. a mong

Ih. preo<ribed hei ... To ill"" ... t... if "'mething mulin. of the tate after the preK,ibed h<il"l take th. ir sharcs.. and there i. no agnate heir to tah ~r th. remaining port;"", this portion .. to b. rroi$lributed ilmong the prucribf;d ru.;n. uch a<cording to hi. shal't.
A S},iit. gl'lllip who ",fUK<i the .aliphat .. of Aim Ihh AI.-Siddlq and 'UmaI IbnulKhou.~b ""d wagM U <w.alioN again.t tbtm and against many of the Proph"". Companiom as welL

lb. RtfIJlah

Rib4

A term lhOl induoo u.ury and usuri""" glin and inlt ....1. The .. Iling of an item fo r l noIher of the ume 1),]><, on the o:poI, but in H(~.
Conditional exc ... f'" dtlay of payment.

RlbQt.fotP. (UCUI
U5IIry)

Rilum_....l1lzi1 (delay ... u,y)

...
s.olam

s
A standa rd m.... ure that <quob 2172 gr. "",
It in ho>ditlr who d.i n oh,anomission tt... be.n Iran.m ined by

truly pious re""'ru who ha"" t-n koown for th.ir uprightness .nd eIactitud.; such hadirh i. fr from e<e<ntridty and
blemish,

The ",la .. i. payomnl in Ildvan.:. with delaying lhe =ipl ohM: sold il.m,
0". of th. gale< Or 1.1"''' of th. H.llfi.." Th. Levant; th. rtgion <""",ing Syria, Leb. tI<ln, Jordan, and

hl..ti .... ,

'"

ASum""'lJ' 01 bbmic JllIisptudmot

It it lilt !ype 0( rnuriag< in which "I"""'!.n gi_ b is dao&ht... (or I woman under hi. guudlanah;p) In ~ to anoo:her prtoon on Ih< >n<iilion that the OI h" Sly.. him his daugh!<"t (or

WOman unde. hi> guardianship) in marrlag" too, and without any dowry pII,! by .ith.... Thf Sw...... ...t... 10 romp;btionJ 0( rho J>ropheIic /J4Jd1rJu .....lfocd toCCORIing to rh< blamic jurUpnod....ial ...bjeclS; the main IOu, compiItts 01 the Sot...... ""' Ab(! otw6d, IbD Mljah.,
AITIrmldbl and AnNod'_

According to The SuN~ak (I'rophttic T dirlon).

T
The Two Authtntit Books of AIBukMrl and Muslim.

n . Two T..tifi_ Soying."] ~lify ..... ~ is no drily but Allah and Ihat Muhamcollona of faith

u
An tlqiy~ equal. f<>rty di rham. "foil""., Le. 11 9 grim. ohiJ .... ' (u. dim.m of .U ... , equal. 2.975 sranu of oil"". ).

act in

In blamk -u/ah (rommWionin&! m.n to tht which IloepIlyaccountabk person appoints another I<pIIy

'""'tool..)'.

accountlbk penon 10 act on hi, bdWf In I artain JJUtIrr in which MId! IUlhoriulion is penlI*lbk.

w...'

Tt.. frffd sll"~ loyalty by vinu< of emancipation,

A ItandanJ m...u", Ihat <qUI" I J()110 grams.

w.,

A "'pc"rtroplO<y ""'Y"'" consisIi,. 01 an odd nwnbtt of ...!""'" (onc. thrtt. rr ......,. ft i.... "'""" or Ihiruen) I nd it iI pnformed any time I><t-.-n the ' Ish,,. (Ni"'t) and ,he I'tIfr

(Dawn) 1'nI~.

z
Llhlh i. an annu al rxpenditurt for the bto.fit cri th. Mwlim community. primarily to help lht poor..... quittd from thou Mu.<Iim.< who have excess wtllth. Poying Zakolil ;. Oil< oftl>< flv< main pillan of Islam (for rno .. dabo....tion. ' HU to th. ch.p'"
ooZak~h).

ZiMr i, tit. . .ying cl . husb.1nd to hi. wi f., when he...anl< to aMt.in from h.tvina u x with ht . "(s..xl.LIlly,) yell ".ta m. like
Ill. back <>f my mOlh.,.- L. unlawful to appmoch oe'\Lllly. Thai
,..... ' YJ>' of diVQl'"C< prxticM by A.... bs in lh. Pr. l$lomic Period of Igooran (MhjJiyyoh).

NAME INDEX
-AAbdulllh Ihn . Abbh ...99, 226, 324
AbdulUh Ibn SaIIL ............ _ ..579 __

Abdulllh Ihn Sallm................... 64

Abdur-Rahmb Ibn ' AwL ..... 336,

Abo. ytisuL ....................... 289, 5(i I Abul-' AI" AI-Ma' arrL .......... 621 AbyJ.Sinia ................................... 742 Ad-DiraquinL .................... 69, 92, 172. 178, 222, 340. 429. 504, 548, 549, 611. 651, 739 Adherence to the Straightway Requira Opposing the People of the Hcllfire ........................... 641 AI-Bar" Ibn 'Azib......... _ ....... 683 ._ AI-BayhaqL ............ .3%. 564. 732 AI- BukhirL __ ...................... .12, 17. 20,21. 31. 49. 56, 60. 70, SI, S5, 93.97.114, 118,149,153,184, IU . 194, 195, 196, 214, 231. 271, 275, 328, 339, 353. 354. 359, 364, 373, 374, 376. 381. 417,424, 430,449.460.483. 492 , 502, SOS, 510. 51 I. 520. 523. 530, 539, 548, 553, 561. 565, 609, 617, 642. 652, 653. 657, 661, 662, 668. 669, 670. 671,675,688,690,691,716 AIGUmidiyyah .............. _ 755 ...... AI'H;tfillbn Hajar.............. 2, 732 AI-Hakim .................... 92, 109.163. 239,246,382.490.509,564 All Ibn AbiI Iilib ............ .13 I. 179, 226, 227, 228. 231. 235. 255, 324, 333, 430. 434, 474. 530, 547. 554, 582. 589, 640, 654, 662,702,716

403,404,611,708
Abdur-RahmAn Ibn Qh im .... 742

AM . Ubayd ..............,....... 235, 611, 710,744

Ab/l'Ubaydah Ibnul-Jllrrih .. 235 AM Bab Ajjiiddlq........ 157, 214, 226, 255, 261, 324, 616

AbiJ Diwild.......................... ,12, 31,

41, 44, 74, 172. 1S4, 249, 260, 397, 405, 479, 480, 91. 94, 109. 110, 136, 1S6, 193, 207. 227, 314, 332, 341, 357, 427, 430, 439, 455, 490, 5{}2, 509, 517,

530, 557, 558, 559, 574. 601. 611, 622. 642, 653, 655, 676,

677,683,702.708,
AM Dharr ................................. 51O Abft Hurayrah ...................... 12, 69, 102, 114. 152, 155, 157,353,
364, 497, 504, 520, 523, 528, 529, 553, 56l. 654

Abo.Mo.sL ............... 109.275. 276,281 Abo. Qil.bah..............................417 AM Sufyin........................ 505, 716 AbiI Tha. 'IabahAl-KhwhanL653, 654

Nunc Ind<. AI-Ift!h ..............................620, 634 A1-Jami. ......................................732 A1-J.wibul-lGfI ....................... 575 A1-KhalW ............................... 732 AI-Mubdi ................................... 471 A1-Mllghirah Ibn Shu 'bah ..... 26O A1-Muntaqli .............................. 6S8 AI-MllwaffaqlbnQud~mah ..... S4,
143, 166, 171, 230, 372, 470, 471, 486, S03, 5111, 520. 552, 553, 564, 566, 571, 575. 589, Aws Ibnul-Simit .....................454

Az-Zubayr Ibnul- . Awwirn ..... 235 Az-Zuhrt ................... 1116. 559. 63<1

-BBanft Lahy1n ..................... 523, 561 B.... irah ................................. 21.468 Bilqis..........................................742 Birwa' Bint Wishiq .................399 Buraydah.......................... 249. 260

592,600,755 AI-Mllwana'..............................641 A1-MllunL ............................... 424 Al-Qld.i ......................................529 A1-Wazir .............................. 11.471 AlYamimah ............................ .324 AnQ .. ..................................... 56, 64,
241,354,417,656

-DDayo' Arafah .................,. ...... 5112

-FFathul-Qadir............................. S22 FAtimah Binl Qayl .. 36II. 502. 503

-HHadramaut. ...................... ,. ....... 708 Haklm Ibn Hlz1om ............. ll. 590 HalClilyyah ................................. 644 HanbaIlSchool .................. ...29.93.
324. 341, 459,477,676,698

An-NajishL ............................. 742 An-NouA'I. ......................... 136, 260,

267, 281, 341, 354. 359. 364, 397. 406, 423. 436. 509. 5511.

560.564,565.574 An-N .. w.wi ............................... 6S1 Ar-Rubayyi' .............................. 539 Ash-Sh~m .................. 175. 325. 611 AI-SA'ib Ibn Yuld .................... 559 AI-TlrmidhL ... ll. 73. 74. 97, 106. 109. 166, 184. 209, 21S. 227,
231, 239, 260. 262. 267. 332, 361, 363. 365, 399. 406. 439, 452. 479. 4114. 497. 518. 529, 565.596.688,689,703.726

Hind Bint ' Utbah ............ 216, SOS.

509.716,717

Hudbah Ibn Khashram ........... 533 Hudhayl. ............................S20.553

-1Ibihiyyah ...................................644 Ibn 'Abbb .............. 17, 32. 60, 215, 227. 228. 255, 261, 266. 408. 423. 425. 474, 558, S6S. 601,
627. 653. 654, 656. 661. 662,
670,69 1 ,7~,

aunt o-f HUlIyn ......................... 412

730, 732. 739

A Sum"",,), of Ill. mic Juri.prudeno:

Ibn' Abdul-Barr............. A24. 531. 564.676 Ibn Umar ..................... 52, 97. 142. 175, 186, 359. 381. 434, 435. 442. 449. 460. 474. 655, 660. 662. 688, 703 Ibn A~Zubayr .......................... 255 Ibn IiibbAn ................. 11, 246, 314 Ibn Khuuyrnah ........................ 260 Ibn Mljah .............................. 11, 63. 64,172,178.222,239,241,332. 341. 382, 406, 427, 429, 430. 468,534,542,558,613,689 Ibn Mas' Cd ...................... 13 1, 136. 137. 229, 235, 240, 255. 262. 271, 276, 281, 361, 399. 4(1(), 434, 579, 610, 612, 623. 656, 662.676, 682, 691

Ibn MiUlamah........................... 260 Ibn Rajab ...................................601 Ibn RuJhd ........ 520, S46. 594, 605 Ibn T.ymiyah ................. IO, 25. 32, 37,40,54,91, 93, 100, 115, 119, 120. 145. 150, 156. 158, 162, 173, 174, 192, 198, 234, 255, 258. 262. 352. 359. 363, 390, 3%, 411, 428, 443, 460, 476, 477. 487. 491, 492, 498, 502, 522, 524, 529, 534, 542, 574, 580, 587, 590, 591, 599, 600, 605, 606, 610, 611, 612, 616, 627, 632, 633, 634, 639, 640. 641, 650, 652, 654, 656, 662. 663, 676, 677, 678, 683, 684, 690, 691, 695, 6%, 697, 698. 699, 701, 702, 710, 729, 734, 735, 7]8,744,751,752 Ibnul-Hanaf\yyah .................... 232

IbnuJ-Mundhlr.................. 60, 129, 132, 146, 149, 442, 449, 520, 553,560,566.597,626,653 IbnuJ-Qayyim...................... 16. 24, 25.26,32,54.71,75.80, \13, %, 117, 118, 119. 120, 132, 142, 144, 145, 157, 192, 195. 229, 255, 276, 358, 363, 380. 386, 445, 459, 471, 472, 473. 477, 496,497,503,51 7,529.536, 543, 546, 560. 575, 581. 582, 600,611,612,617,620,653, 655, 661, 663, 684, 688, 699, 701, 702, 707, 708. 709, 710, 716, 725. 729, 730, 731, 732, 737,738.739,743 Ibnns-Sakan.............................. 260 Ibnul-SaIth ................................. 92 Ikrimah ......................................558 Im.tm AbO. Harufah ......... 255. 289. 324,560 Im.tmAhotadlbnHankt ......... 21. 32,40,56,91,118, 119. 120. 136, 142. 172, 175. 11)4, 192. 227. 231, 255, 289, 324, 332. 341, 344, 353, 357, 358, 368. 382, 396, 400, 406, 417, 430. 439, 444, 476, 477, 479, 480. 490, 498, 5 17. 529, 530, 534, 542, 543, 549, 559, 561, 564, 580, 600, 601 , 612, 621, 655. 660, 664, 678. 679, 691, 696, 699, 701, 703. 709, 717. 720, 726,729,735,739,743,744 Imlm Ash-Shabl. .................... 228 Imlm Ash-Sh.tfi'I... ............61. 69, 91.227,255.289,324,344,345. 471, 475, 510, 560, 575, 601.

""

N.m< Index
Im~m

Ash-ShawUnl... ............. 22 8,241, 522, 528

Kindah ................................... ... 708 Kisn .......................................... 742

Imw.. Ibnul-Qayyim ......... 16, 24, 25,26,32,54,71,75,80,93,96, 117, 118, 119, 120, 132, 142, 144, 145, 157, 192, 195, 229, 255, 276, 358, 363, 380, 3&l, 445, 459, 471. 472, 473, 477, 4%,497,503.517,529,536, 543, 546, S60, 575, 58\, 582. 600,611,612,617,620,653, 655, 66\, 663, 684, 688, 6~, iOI , 702, 707, 708, 709, no, 716, 725, 729, 730, 73 1, 732, 737,738,739,743 Im~m M;l.1ik. ......................... 91, 93, 255, 289, 324, 47\, 490. 534. 561. 575, 597, 601, 612, 641, 656,709 Imnn Ibn Hu~yn .... .......690, 691

-MM.' qil Tbn Sinin...................... 399 magi of Hajar........................... .391 Mahmud Shukri AI-AIOsl... ... .641
Maymilnah Bintul-IDrith...84, 403

Mu .wiyah ................ 382. 533, 708 Muhammad Ibn . Abdul-Wahh~b. ................................. 3, 255, 641 Muhammad Ibn AM Bakr..... l00 Muhummad Ibnul-Hasan ....... 289 Muhayyl!ah Ibn Mu'ild ........579 Mujibid .....................................60J Muslim ................................ 12,17, 20,21,3['40.41,49, 52. 55, 56, 60,81,85,93,97,114,142,194, 195, 196, 206. 214, 281, 328, 339, 353, 354, 359, 364, 373, 374, 381, 403, 405, 412, 417, 460, 483. 484, 492, 5(12, 5(15, 510,511.516,520,523,529, , 553, 56\, 609. 610, 617, 621, 628, 632, 652, 653, 657, 661, 662, 668, 669, 670, 671, 675, 708 , 716,726,737
-NNegus .........................................742

Ju far ................................. 231},492

I~bir

-I-

Ibn . Abduili.h ............ 2O' 55,

108, 118, 184, 193, 206, 255, 266 , 354, 358, 365, 548, 557, 652 , 653

Jibril".,...." .................................. 640

-K!(a' b Ibn MlIik. .......... .......... 92

K. bIbnSiwk...................... ..411
!(a'buh .............. 582, 625, 639, 676 KhlIid IbnuI-Wulid ................. 611 KharIjim .................. S94, 634, 635 Kbawlah BlntMIDkIbn Tba 'labah ....., ......................................... 454

-pJ>tOple of Hejaz. ........................ 744 people of Sana.........................546

-QQabillh Ibn Dhu'ayb .............. 260

m
Q.yIlbnul-HArith ................. _393 Qaypr................... ,.................... 742 Qur.ysh.....................................227

A Sumn>''Y o>fblamk JurispruJc.n<:<

-T Thibil Ibn Qay..................... .... 424 The Battle ofUhud ............97. 261 The ConquC$1 of MKU ...221.
The Mau et. In whkh the Mes se nger of Allah Oppo!cd the People ofthe Pte -hlamic Pe riod of I gno~ n ce ............ 64 1 trlMof Ghlmld ........................ 755

-RRifl!lah ..................................... ,38 3

""

-5Sa' d Ibn AbO Waqqlt. ............. 228. 276,328 Sa' d Ibnur-Rabl.. ............. 266, 267 Sa' ld Ibn Mal\iGr... ..................690 Sa'ld Ibnul-Muuyyab ...... " .. " .. 69.

-ul1bldah IbnuJ -S.mit................. 40 Ubayy Ib n K.t. b................. __... 255 Umm Sal.amah ................. _........ 17 Umm Sul.yn............................JS8 Uqbah Ibn . A.mir............. S60. 689
Unnb Ibnul-J. d ... _...............~ .84

S4S.560
Sablgh __ . __ . __ ......... _._.....6 16 ,5afiyy.h ..................... 403, 404, 492

SifiYrlh............. ,... ,."._ _ ".' .... 23 2 .. ..

Sahllba Ab6 Hathmah .... ___ S79

Samunh Iltn Jundub ...............691 S.... dah ...................................... .416 SIffi n.__ ... __ .___.... _. __............ _3 24

Udmah Ibn Zayd ..................... J68

-zlayd Ibn Thibit ............... 2S5. 2119.

302,324,510. 104

SuJaymin Ibn Yaslr .................9

Suwayd Ilmus-Sl mit ................ 574

lay nab Blnt Jah5h .....................03

SUBJECT INDEX
Agnation
Agn~lion

no
by one.tlf

Rrqui .."",nts

of

v:alidity

llld

",

Agnation by other mal ivu 281.282 Agnation with oth.r mat ives 281-282

,,,,,firm.lion <>f Gommissioning S4 When commi .. iooing become< pt nnisoible 86 Competition (S<lbq) 155
O>ndihoru of VIIi<! <ornpelitiOfl ISS

C.togori.. of agnalion

Kind. ofhe rol'm

Sides of agnate reI'lions
Kinds of ""lid competition

156-157

Apolasy
Acu of aposta.y Killing OIl apostate: Ruling<

m
6JIH;41

".
155156
IOS I06

LtgaUtyof competition Conciliation

6416-(2
LegaJityof

'"

Punishment of the apostate in this

world aod in the h.,.,.ft<, 637638

Rtpento",. of apmtates 6426-(5

_of
Cu",,',

Rnlingson

lQ9!l1 106109

Breastfecd.ing
How h<...lf<eding is confLrmtd 487

Confession

Ltgolity of cabl.

."
484-<186

ConditioN of .alid confnsion 7517n

FornIlof

'"

Whon breutfding rolin&, Or<' appl;

...
490493 489-490 495 495-497
~w".n

Claim and Evidence

ConditiOlU of roid daim

wtto i. ~nti tled to

Wiodorn. behind

Proof lits on the plaintiff and oath i, ,WOrn by t he defendant 726-727 Commls.ioning (WakAlah) 83
Actions ",1.led to tI>< mtnori r and tht authorired perlO" 86 Commitments oft'" rq>re><ntatift 86

UIUleI ~ti"l! Cuotody

Causes p"' .... nting cwtody

Child', right to cl>oosc

nU

Damage and Damaga

p= 497-49S 171

Legality of

83-1>1

Dlmag .. ,awed by animal. 172.1 73

On~

Mane", in which Comm isoioning i. p.,mi .. ib1e ~-B5

M'lIen nuUifyiI13 commi .. ioning 85

i, ,t5ponoibl. for proporti .. 0 ""

damas..

17l-172

Story dD.vid .nd Solomon 173174

A Sum ""'r .,rlsl.mic JurLsprudcnce

Disposal of One', PToputy during Sicknc.. 221

T)l>e'ofdi .. ases

m
bcqucsu. ..,d

Diyoh for quasi -premeditated murder 553-55-1 and manslaughter !.eH lity of diyan . 551-552
Warning against making linl. of ptoples "",Is 55-1-555

Dilfe"f>CtS beI,..,.n

ondow"",nlS and donations 223-224

DIviding Sbares ltnOtlOg Partners 719 Compulsory diyi.ion

no-723

Am""nt.

Amoonts defined by the Sum",h

'"

CO .... ruual divi, ion

LegoHty of divi.ion

'"
m m

557559 Diyoh for killing . JOw or . Chri.li.n

Ty;>es of divi,ion
Dlvol'
Legalityof

'" n.

Di>"h for killing . magus 0 < 0 pagan Di),," fo< killing . ..rf Di>"h fo r killing . wornan Diyah in manslaughter

'"
561
560

'"

Who Ls aU!ho<ized to dj"",,,

~ 27-429

Wooom b.hind p"'rmi .. i!>ility of

Diyah of

p~medir . rtd

. nd quasi.

429-43(l
S""n;.od Innon.~ Divol'C< Condition. of divorc . bnption in divor<. .Ill
~38 4 39 ~38 4JR

premeditartd murders
Indemnit y far wound>

,., '"

Diy.. h (Indemnity) for Body Or

gans, Sen~. and Functions 563

In&mnity for !Unctions 565 -567 563565

Innovati"" divorc.
Spoken fotm. of dil'Or Sunnidivoru Une<rtointy in divo",.

434-436
436-H7
43304
439440

Indemnity for organ>

Diyah(lndernnity)forWoundnnd F,acturt'S 569

Fractures
Kind. of wound,

571 -572 569-571

WlfU 11. ...... opl ...I...,......1 (Khu/'J

m
Condi6o(l.l of khul" Legolity of khul' Wb.n khut' i. ptrmwibl.
Wisdom behind khu/'

Do,,",

414 425
42)-no!

Dowry in conntCtion with <onoummoting mlrnag. 398401 Dowry, ~ing, !.g>liry .nd ~mount

'"

HI

421 422

Endowmenl (W"'lf)

395398 205
207 201!

Condition. of valid endowment

Diya" (Blood Money)

Vi>"h for p~meditat<d murder 552
Form. of

Subject Inda
Foundlingi' rcllSiOn

Howtodulwith Munin8 and Icp~ty of

Eng~(1\t

lO8l10 205206 ) 57

Right. offu"",,U" 8'

lO l la}

""

Gift ""d Oonotlon

Ltgoliryo(

21121 .

'"
l iS

Pmnlaibilily 0( ... gogtd _

Iooklnt

at the 3S7 }58

Pramu mTIO>'< rano:ot '" hea.u 216

~sifu:.rulinp

PnIp<>oing to a di..,rud ~ or widow: Ru!inp )58.)5'.1 Propoa"ll to In ~ngagnl _ no RIIllngs l59 l) Flghlin.8 the ReNu 61 1
I'orbiddonu 0( rcWlIing OgallUl Mu..slim rulo,,, 6ll-633
Motltrl lO considtf wbrn

RuIa to be .;oruideml in )Jifts and

donotions Gu .... nt~

21 .... l1S

Conditio,.. 0(
Ltgalityof Ru];np on

"
7) 74

r"""..., robcIo

m-'"

fI...w.g Loot Objcdl (r....,.>y.Jo)

Kinds oflost property

."

19J

Conditio'" of
Ltgaliryof

" .,"
~,

How to d..1 with loot prtIpOrty

195 199
19] 195

f ....

....

...

Hudfld (PnoK . lbcd Punishm ents)

Condition of ou<:uting ~"'ri l>rd ""nW"".n.. S88.5a9 lepIitrof "UCIt..d ""ni.llIn...u 50117

"... EotjngpW>1:5

"""'"

6SHISl

'"

No-........ .. pm<rb:dl""'"
DiKl'C!lonuyPwn lo/tm<nto

",

655,,(;51

W,""""" btIolnd pmaibod punilhmmu

Enltnlininggual'

6SNiS8

I.owful.nd prohihi'I kind. of I."d

'"
615
615 617.fiIB
OM

and ... aninl&1s 651.655 DriSin.1 ruling """",,.nlng fuod

604965 '

Diff.,..nc. between diocrotionory . nd

proscribed punl"'""",u 61 6617

Juri'I" ""'"nlng
punl"'"","IO ........... I'TaaibH
......,

or dio.cmionary

Klnds ofprohibilNlOoob

65 1

Foundlinp

FInancial offai"O(fowodli"ll 1O} 204

""

Who is 10 rri .. ~ puni

,..,101.._.., ro. Hit/>...,

A Sum .....,. oflolamic: J~

De/lniban of 1Ugm..y~.,. 615
Punishmmto diff.r a.;<ordln& to the crim.""",mi\\(d 626621
Righ.ll0 dof.nd ol>f501f

. ,....
m

670-6"

6211 629

"'-riI>ed. P1IJlidt....... l ro. lntoDr.lnto

Logal ....mIw'ofWha
Prohibition of InlGlllcants

610612

..

Inh itUlC<! Imons People of Dlf(onn' Rdlslonl ll9 m,bell.wr', lnMrllin8 f mm a M.,.Iim and viol: ~ Jl9-J.40
Inhnicanu """"" ditbdieYort
-~,

609-610

Inheritance by RflM

W&ming >pins! drln~ in!GXlcanu

612-613 Preo<ribcd Pltnlsb .....1 for Slandtr 603
CQnditiMs of oxul l", I~. ",,",(rib!

)27)29
M.. nlngof

puoiohmmlofobrKltr

6OH,()5

Inherilanu oh Fetus
~ 10

III
31 63 18
l l}J IS

[)ofUlitioll and pn>/I lbition of!land<:< 60).604 I'Wn and aDusiYr wonIa of ... ndro-

si" 0 t.t.. 1U1hare

lnhoriclOn of lotus: conditioN

MuinlW'II period 01 ~ 315316

",."

P......II.N

"""'!oh......t

(01' SIooli ...

A...,rting an'pulallon In "'Be of .u.pidon 622,(;23

Condilions of eucutinltN ""..... ibcd puni>hnH'nt ,,(ocaling 620621

."
611

Inhorillme of a Hom.aphrodi~ 309

SchoIon' dl rr... nt opi nio,," .. g~ rdin8 h.,mlphrodic. 310311

Inhcrltu1 oh Mining i'a'son JI9

Period def;;"""e<i for tb. mlssl,,!! pnw>n l l9-no
WMn

Iwrillic mnning of ...alinl 619620

NiJ<1bmtailingamplllllon

r,<KO lbed h"""-- for ZIU

S93

ml"""

penDII

io.s......d dead

Am1ing puniehmtnllln o:aft of Ildp icion S\l7 Good ;tion/. of ne,,,tinl 1h. pmc.ibcd punishment of Zlno! 597 600 Pro:ocribed punishm ...... ofl he ",wiIIan and tho """"'ubfM S9S-S96

Inhnitanu of o..ughren

265

'"

O,ug!ltc1'lIl OhM decUKd', la", oon

!nlotr~Jn of th< d"".....r, d,ugh"r{ s)

".

265266
Leplily 01 m. Int.eric.an of dMlghttf{l)

Rulinssonoodonrr LJsIlncso of zm,I

600601 SII}'594

IIllwriWl 01 DI--' W....... JlS

,..'"
336

Huntinll

667

How divorced -.man ruoivn het aharc 3)7

c....&nd conditiono of

668610

Typa of

Subjc<:' Index
IMmtanccolhthen.aAdP. Ierna] 2S3 Grandfl tMra e ... . in wh ich I fother Inherit. 1S4

m
IlI.buttanoe oft.... Murderer of the Inherited PerIon 343 Kin<b of m ur<k, "l$l nh.rilin, the
murderer loW )4 S

ea- ol lhe ~ ICCOldioI to

11><0 Mllikls )4S
inhn~

Inheritanu of Full Slslfl'l

l~ of fuU

iislen: cooditioos 269272

'"

Inheritance: RullnlJl
Imponanct of !runl".

'"

lJIheriWl of Grandmoth"' 259

How 10 giw arandmalh., htr ",",.

RighlllSSOdoted with

ow' property1 24(114

241142

239 1..,

1612(,3 Ltplityofthe In~ of If'lndm ",her 159 261 Inllerllancc of Klndnod by Blood

Willdom o f inherit....... in Islam lnterdktloro

LegalilY of Ruli"", on intmIicted perwn 91 101 89

How kindn!d by blood m:oriw their shatts 33) 'l'ypes ofklndred by blood 331-)32
'nhitan~c

9092

of Mothcn

2.57

Cua ID wbicll .......htr inhrnto 157258

Dividing Pn:lICrlbcd Sharu lI<XWdillg 10 AMumplion and PreatutlonAry PromIIlfU lO'7.lO8

Inheritance ofSlbllnga with Pater naI Grandfather 23'J

Cua indodin,oIbIin&o wil lI ~ vandfalher 289290 Srodyina di fferent cos<. 290297

CalUao Onh.ritan u andthd.q:11

Inherito r. Blood itdolionship 24S 24S-146

Brothe .... IO<l

143

Cat.g<lI'IQ of mllo heirs

CaUMf oflnh<ritonce

247
24S
" tIC.

inhuilaDCe o fSblfl'lwhh Daugh len and Inh.rilana ofM ltem al

Sibling!
lnherilan~

Daugf"., I nu g",nddaughttr

248

of /mumal Jiblinp 2n178 Inheriw.o. of AAen with doughler.

275277

FlI her on<! pate< ...1gnndfa'htr ... tIC

Inheritanu of SpouOflt

151 252

Fnnal< ."",,,,,ipotor

Inbmtancc of Ihe Drowned and 'J'ho.e Kilkd Uncler Collapsed 8ulldlngl l21 CO$n cowrlng peopIt dyinl coUli ~y )23315

Full or hllr
Hwband

.i""

'" '" '"

149

A SummaI)' <>fWornic Juri.prudence Inheritor. according. !O gender 247 M.rril gt M<>!hotandgrandmc!Mr .. fl<. 248 puernal cnd.. and hi. ron (""""in)
~.

Qu.[ifications of judg.

698-699

..

' .... geEthk.

How judge should dnl wilh cases and litiganto 70271)4

'"

Son and the

Trr

,.,

&OIl

of th ...,n ... m:.

Letters among Judges. Teslifying to Testimony. aod Taking Back

Testimony
741

of inMrilDnl . ording 10 sha," of inh,ritano: 249-250 ,% Ward'

HO

Condition. 10 .c"'"pt testifying to testimony 744-745

Wife (widow)

Kind. of k U amongjudgeo 7427 e"

Legality of leuers among judge. 74 1-742 Tui ng bK X testimony 745 MOlhod of Und<<to.ktnl Judilmen. 707 Proof J~ on the pl. intiff 707 -709

Mu'oUIJ#h
A.sJ.ri"..h /5Jrrini"..h

,W
302-.lO3 303-.lO4

Al>breviated Ca.. ofz..yd .lO4 .lO5

Forrn. of Mu
foot z"jIll

' dddn},

.lOO.lO2
~,

ea..,.

Kinds of Partnership
Ethic. of p. rtnenhip
Kinds of p.rtnuship
'hld~

Meaningof

. 9':1-300
.lOS-306

125126 126 127 129

'"

n. 'Inj),J-"h of Zayd

Wh,n Mu 'dddah is <on.idered .lOO

(Coop<ntln) P.rtn<nlI ip

MuQIrA"-" (SpccoWin) P.r1,...-./tip 131

Meani ngof

Categories of
Rul .. governing

Ropulablt ""rlner, Manual, aod (Amprehen,lve Plt"lllet'Shlp' 135

Coolp<ehensil'<' Partn....hip [37 138

M,null ""rt"".-ship

lltit37

}ob Wages (Ill' dlah)

Repulable l'ulner l'uI""rship [35-136 Diff.",= beiwt<'JI ;ob wages and hiring 191-192 189 191 !.egaJityofjobwo8<" Judida r y in Warn Lendins S-omcthing for Use ('Ariyah) Condition. of valid lending Legalityofl<nding
162

",

N" ... ity of judiciary

161[62

m
Wb.at borrowt. should <>bs."..
l62164

o.fecu
m'ITi.~

permitting
ront",cl 386':l./17 407

Loaning and Loam

Condition. of

How marriage contract is ""ncelkd

H .....nd-Wif< Relotiondllp

Legality of

Malnlalnlng Relatives and Po~ oions 507 Mainuining 51.ve. and animal<

How 'l""'oes should t ... l Me oOOlher 407409 Right> .pou= h.ave on on 1>011><,
E<f.ni ... ~JK.ln Marri0V
Crit.ria of e<ju;vale ne<
.\(19413 367

510-511
Proof of the legality of maintaining
... Inl;",. SO/I510 When maintaining ",l. tivn I>omn
obligato<y

Wedding Fe"" (W411"'4h) Wedding

amount

403
40]404

507-508

Marriage
Diff..... m rulings ""

r...l; leg.lily, tio,i ng and

Whon 0". should att.nd wedding feast, 405 4(16

UnDUlrrlalubk Wom~n

Ltgalityof

n.. Prophri'. abort. lion to 353 -355

Virtue<of Wiodom bthind the p<rmi ..;bili!y of

Kioo. of unmarrias.abk worn.n 371

W"'"." rlenuUy unml rri.l gtobl. ~71

polygamy

351 -352

Condllh>n. Mod. Bdo.. Marriage 37'l

Invalid condi1;o".

InVllbd rondrtioru i"">Iid.ting .".rrOagt

Invalid ,,,,,dilio,,,,
invalidate marriage

that do not
38~

,.

Wom<n ... mall r un marriage.bl. for blood I"tion, 37 1]n Worn.n elern ally u n rnarriageable for special reuon, 3n 37' Women .. mporarily unmarriag.. blr Women trmporuily unmarrilg<abk forcontingrn t man." 375 3n

'"

Kinds of in.oiid conditi"",

tiolll
M~lIil

38!

Marriage okptndent "" future condil82-.J.83

m. "i0g<

Women l<mporarily unmaniag<abIe tOr simultaneous marriage )74315 M..... I.ge Conlract: Inl.-gm .nd Conditions .l61
Conditions of .. lid marriage 363 )65

SlJighilr marriage
Valid -rondilion.

Int.g ....l. pan, of ma"iago 362363

~rmon

of marriage

361362

Marriage of DisMli""....

389

A Sumffillry of I.I:unic Juri.pruden M arriages of disbelieves: Rulings on vtlidily 389391 When both spouses <>r one of them convert, 10 Islam 391-393 M.tters Nullifying tbe Wifc'l Right of Expl'nsa and Shart of NIghts 415
ExpiotlOll foro Brobn Oub 681685

Oatb. in C laims

How oath i. token

When oath is considered P",emptlon kgalityof Rulings on Qild.! for MurdeT

7411749 747748

'"

WhallpOUSCS should do wt.... disputing 41 74 18 Mortgage

Condition. of Legolity of Rulings on MUIdet' and 115 Types
68 -69 67-68 69-71

"

117119

'"

119120

Condition. of executins ql~ 5J2-535 Conditioru of obligating qj~ 529-532 Legality of qi,[o!i Way of eucuting qi~I

H<>rridnts. of committing murder

SI5 5 1~

'"

m
535-536
527529

Man,laughter

521 -524

Premeditated murdn and its form; 518-519 QLlUi.p=n.ditat.d murder 519 520
~ofMurder

Wisdom behind qi,[<ll

Wounds

QiJ4l (or Parts o( the Body and

539 Conditions of executing qild.! in bodypam 540541

517SHI

Expiation for Murder

Am"",nt of "'pillion for murder 576 Ug.lity of expi.tion for murder 573-574 Wi,dom behind expiotion f<>r murder 574575 NeiShborhood and RoadwaY' 11-1Ruling. on ndghborhood 113-114

'"

Lq:ality of qiW in body ram 539-540

Qi~I f<>r

""",nd!

541543

Qi1<ll When a Group Kill. an Individual 545 Condition, of executing qild.i when group kill. an ind iVidual 545547 Indemnity when a group injn .. an individual 547549
QtI~mtlh

Ruling' wilh '"'1'1 to roodw. y. 115-J!6

(Com purgallon)

57<;l

Oar""
Bee.king o.th; Ruling'
676-679

Condition, of l..-galityof

580-581

57<;l-580

Ta king oaths mnS! only be in Alla h's Nlme 675676

Way of performing compurgation 581582

hdamation ofWaatd.no.

lU

ConditioN 0(
Ddinilion of

'" n
n
77-78
,~

How W llteland at< poutUtd \8-4-186

\..<pliry of reclaimlna .... n.land.

lSHS4

Ruling' On

Rentln8 Things and H1 l\l Peorl

pk'a Serric:ca(/j<InIIo) (;ondi tionsohalid ijArlfh
Dulial ol lesoo . ..... ~
147

Testimony
ConditioN of tho wim...

732135

143 \50
150[51

liowupriSIIl_iln-.. nS-716
Numbn of witM$$H

7l7-7W 72') 7)2

'"

Unde,nklnlll<$llmonies

Wbos< tatimony I. occoptable 736-737

.".

When in.. is c&nul1cd

151

T",d.. Trlmlo;tlo...
Cor>d~""'rdoIC'dlO <~

11 13

Banki"ll intnnls~(O~mI rib.!

~~ ,

R;N/.n.ar (bua u....,.)

)9 4 4

Conditiont mated 10 dor odlrr and lheburer 11

RitwI_MlIf'ah (Dd.ty Usury) and iu kinds 39

Wotninc .gain<! dnUnS In rilHl 35-38

Legolityof
c..ndl!lon. of Tr6d. tnnOKllon.

910

'"

19

Wisdom b.hind rro/\Ib~inll ,I!o.I 38

Invalid cond~iono Valid cood~ioN

OpIioD l n Tl'Odo~

2 'll

Sharuropping (MouAnI ' ,u, and

M~~q4h)

1ft

"."

MO<S6q6k meani", - ' Wplil)' IU IO

1d1mir.. .Jr-.mNDi"' ..... 1tpIity 1..

n
23-14

Option duri"l tIw ocooion

RulinjllonmlU4qdh

143 144

OptiQn I"

"* of chealing

27-23
25-27

Option in ClIP: 0( dK<plion

Slaughtering
Condi. i""" of lawful
1.tpIily '" slaushlcri",
PmpritliosofSlougbleri. .

659
~I ..inl

0rtlon In cut cA defect

Option In ..... of differenc< Option in cue of (ab< piu

.......
66'

"

U~

"

6S9660

Option In cue oI ......iIy change 29 Option of KipWltlon

24 15

SurflytJllp (KJJjdJ""J

A Summ.ry ofl.lami< Juri'PIlIdroa: Probibited Trade T.. nsaction. I:; U.urper must r.turn t he w urptd property 166-167

Nothing i. to be <old for ptohibilro \LIo>ge 16- 17 I'rohibilion lnd me.ning I>f 'In~h 18 Trod< Os DOl 10 divn1 from prayer 15- 16

Valid Court aaim: Condilio", 713

Condilion. "Iat..! 10 d,l"" 713 -714 Condilions related to litiganlO 7 14-717
VO~

What i. indud..! in _ What is no! indu.d..! in . ... ts

S<Ulnl Fruits C...,. in which sdling fru it. before rip<'IItsSls ptrmissible 53-54 Impc1"missibility of xlling fru it. befortript..... 515}

."
VOWS

Kind . 1>f valid

689-691

48

Muslim should fulfiU lili vow 688-689

Onc m",t DOl vow for OIh<:r than AUah

M'
Wife'. Alimony
Alimony <stim .. ion Leplity of . limony

502-5(13
50 1-502

""

R-espectability of Muslim', right. 5<5

Whe n wife i. notemilled 10 alimony 501SO<I When wife'. alimony i. due SO<I-505

Vllpou] of FurdtUfd ComMOdIty before R..,eipt ond R.... iading of

Barpl n. 1I lmptrmi .. ib;[ity of dl>po.ing of c"",mod ili", before receipt 31 _)3 Permi.. ibi lity of ... scindi ng conlract.

u,gal obl igation. before fulfilling be<Ju t 231-232 legality of will> 225-227 227

wh.n nec .... ry

)3

s..1"m (Sal. of l'oym01lI in Advan<t)

Condition> I>f valid ,alam

5 ..

Maximum amount oflhe will No b<qu"'t for.n heir No drtrim<nt . hould b<

6062
W

u,gality I>f

,.uoed to heirS
231 235237

Trust.
u,gality of

228-229 Permissibility of bequeathing on 229 <ntlre prnp<"y Right to I'<voke bequ",t

Whal l1n1S1et should oI>sm'< 178- 180 Ruling> related to Ulurpation Inviol.bility of
~.. .~.rut<>r

165

prnp<rtie. 165-166 Usurptr i. r pomibl< fur u.urptd p"'ptrti<s 167-168

QUR'ANIC VERSE INDEX

Sura I : AI-Htihah
1:6,7 ... .... .. ,

",
"" '" , '" ,... '" '"
.~

2:262,272. 2:227 ......_ ._

428,448

"

Sura 2: AI-Baqarah
2'21... .......

2:29 .... .... .. 2:40 .......... 2:60 .......... 2:83... .. 2:160 .. ......

'"

2:228. .. ......

407,44 1,443.

""

444.467,474,
501502
2:229 .... .. 422,424,4 25, 429.435,441, 375,425,434.

216,5()8

2:230 .... ... . ,

2:1611...
2:172. _ ____
2:173 .._
2:178 ... __

2:231 .........
2:232 ,......

527,529,531

2;2:33".......
2:234 ,........

2:178,179.

)14,471).484, 508509,511 468,469,471

358,375.476 397,399.400

"" '" '" '"

H79 ,.......
2:180 ...

528,532 525.528

2:235. _ ._
2:236 2:237 ...
2:270 .. __

2:181... .....
2:183,.. .... ,

2:184..2:187 ..... ...

2:188 ...
2:194 _ ... __

m m
llO ,I~~ ,l ()IJ

398,399592

'"

2:275 .........

9,35,36

2:276........ ,
2:278,279. 2:278,2SO. 2:280. 2:282 .... .....

;;;
628,652

2:195 ... 2:198 ........ 2:217 ........ 2:220 .. ...... 2:221 .... .... 2:222 ...... .. 2:226 .. ,,,,,,

'" '"0
no
410,60 1

39,90,91 5,59,61,68,70

" " "

,n030,731

..................
2:283 .. ....... 2:286 .........

,734,738,755 67,68,70,731

....

'"

Qur>n k V.... lnde.

Sura 3, Al u 'Imrbt
3:77........... 3:102......... 3:103........ .

4:21... ........

'"

'" '" on
309.362 101,102 349,351,375 395,398
90,95,99

4:22 4:23. ..........

363,373 261.371,372, 373,374,483,

Sura 4 : An-NIsl'
4: 1......... .... 4:2. 4:3 ...... ....... 4:4 .... 4:5 ... 4:5,6 .......... 4'6 ............. 4:7............. 4:8 .............
4:9 .............

4:24 ........... 4:25 ........... 4:29 .. 4:34 4:35 .... 4:36 ........... 4:48 ........... 4:58 ........... 101.102 242.332 4:59 ........... 4:92 ...........

377,.396 11,24 350,410,417

'" '"
'"

96,97,100,

..
"

408,657 638.516 163,178. 180 49,632 453,521,522, 551.552.574.

'"
98.100,101 4:92.93... ... 4:93. 4: 114........ 4:128 ......... 4:129 ......... 4:130 4:135 ... 252,270,276, 335.337.755.
4:137.........

4:10 ........ .. . 4: 11... ..... ...

209.225.231. 242,247.248.

516,574

249,15l,2S8,
265,266.268 4; 12, ......... , 228,246,247. 248,249,25 1.

105,128

422,429

'" '" "" '"

736.755

4:13,14 .... .. 4:15 .. ......... 4: 19........... 4:20 ...........

;;,
41)7.40&,413,

'"
m

4:145,1464, 160. 161. 4:176 .........

'" ...
242,247,249, 269,271,280.

"

'"

282

'"
Sura S : Al-MA' klab
5:1_ .. _.. _.. 5:2.............
5:3.._____ .

A Summuy of W.mk Jun.prudon"

6:151-. ___

24.35
16. 162,202,

6:152: ..... ",.

6:16<1. .........

'" ,.."
53-1,552

235,661
651,659,660,

Suta7: Al-A' rif

7:26 .. _ .. __

5:4.............
5:5-. __ .. _..

65-0,668,669. 610
376.661

'"

1:3 1... .... ....

7;32... __ .
7:80-81.-.

'" '" 650

600

5:2 1.... _...

5:33........... 5:.3 4.-_.. _

5:33-34.-_
s:l8 ... ........

6l' 626

7:157 .........

7: 189 ... ......

6SS >50

61 9,623 391
531 ,539.540.

'" ".
,

Sura 8, AI.,.\Rlll
8:1._____ . 8:38...........
8:41... ........

5'.2...........
5>45__ . ___

5:49 ........... 5:50 ..... ...... 5:89. ____ ....

390.695 50,505,532, 629.1CH 676,6n .682, OS<

609

8:60....___.
8:72 ........... 8:73 .......... ,

". '" '" '55

m
3< , ,<6

8:75..... ___

245,328,332

Sura SI : AI -TIIwbab
9: 11...........
9:32 ..... ......

5:90,9 1..... $:91.. ___ ..

S:93"_M"M.

'12 '50

9:60__ _____ 'r.56-66"M ' ~75 ...........

5:95 ...........
5'96. .... .... .. 5:106 ____

'10 '10
733,743

9:n ...........
Su... 11 , Had 11:82.. ___ .

'" " '" OS,

638
60 '

Sura6,A] An ' lm 6:1 09 ......... 6:115...... _. 6:119__ ,__ 6:12L ........

'",
' 61

Su ra 12 : Ylbul 12:17. ___ .. 12:55. ____ 12:72.".. ""

'"
n75, 169

663.669

"

Qur:mk Vcr>< Index

Sura 14 : Ibrihim
U:28-29 ....

24:6 ......... ..

640,748

Sura 16: An - Nabl

16:106....... 16:126.... .. .

""

24:6_9 ....... 24:13... ..... 24:23-25 ... 24:32,.. ...... 24:32,33 .... 24:3638 ... 24:59 .........

598,737 457#)4

".
'" " 97 "" ""

430,438 535,543

353,364,510

Sura 17: AI-Isra'

17:26 .. ...... . 17:32.... .... . 17:33......... 17'36........ .

Sura 28: Al-Qa~

28:9 ......... .. 28:58 ......

Sura 18: Al-Kahf

18:19....... .. 18:77.. __ ..... 19:54-55.. 147.149 410

Sura 29 : AI-' Ankabiit

29:14 .....

Sura 19 : Maryam Sura 10: Ilh6.

20:114 ..... 20:132 ... .. ..

Sura 30: Ar_R6m

,
.w
173 688,691

30:21 .. ..... .. 3O:3L......

350,422

Sura 33: AI-Ahzib

33:5........ 33:6........... 33:37........ 33:40......... 33:49... 33:50......... 33:58 __ . 33:70......... 33:70 7l. ..

'"
m

Sura 21 ,Ai-Anbly1'
21:78,79....

597,465

Sura 22: AI-Hajj

22:29.... .....

Sura 23, AI-Mu'mlnt"ln

23:5l. 23:71... ... .. .

439,442,468 510

'" '"

Sura 24: An-Nllr

24:2..... 24:3.. 24:4..... 24:4,L..... 591,593,595.

".
375

Sura 36 : Ylsln
36:57.

'" "" '"

'"

598599,603,
458

..,..

Sura 38: std

38:24......... 38:26.........

'" ."

'"
Sura 39: Az-Zum ...

A Summuy ofhlami< Jllrioprudma

Sura 62 : AI-Jumu ' ah

5
62;9...........
!SHO,!!....

39':9........... 39:53......... ..3:36.........

15
221

Sun. 43 : Az-Zukhruf

'"

Sura 63 : AI-MunlfiqOn Sura 65: At-Ial4q

65' \ . ___ .... 429.433,435.

132
3 1<4.470

Sun. 46 : A1-Abqlf
46:15.____

Sun 48 : AI-Fatb.
"'8:28........ .

,
'" '"

65:2...........
65:L........ 65:6...........

2.4,71 4,
733,7].4

'" ""
501

467,-4$,473, 149.503,509

Sun 49 : Al -HuJurit 698,714 4906 .......... . 4 ~_ ..._._ . 105,633

49:9.1 0 __ _

65:7...........

.. 9:13 ____ _

Sura 66 : At-Tahrlm 66:1.2_. _.. 679

66:2_.........
66:6...........
66:7.......... .

Sura SO : Qlf
50:1 8.......

68 '
410

Sun 52 : Al-f(l.r 52:39......... 209 Sura 54 : AI-Qamlr

5<1:28 .. ._._.

'"
719

Sura 73 : Ai.Mll7ZIlmmil

'"
645

13:20......... 131 Sun 74 : Ai-Muddatbthir

74042,4L.

Sura 55 : Ar- RahmJn

SS:60 __ .. _. 65,1 63, 16<1

Sura 58 : A1Mu, .dUab

58:1 58:2... ...... ..

Sura 76 : AI-ID5in 76:7...........

688

58:3......... .
58:3,4.-__ .

45H S3

58:11-___ .

'" '" '" ,

'"

Sura 102 : AI-Taklthur 102:8......... 650

Sun 107: AI-Mol' un
107:7......... 16 1.656

Sura I11 : A1-MaM.d I II :4.____ 389

Sura 60 : Al-MumlaAlnah

60:8 ........... 60:10 .. .......

376.392

HADITH INDEX
No.
"The KIlt. oliId rlr. bll.,..... haw rhe right to /cup or n!/U'" goods 01 kmg................. .........................................................
2

PP.
10,27

Sdllng ,hould "" only by mulu,,1","se"I: ....... "",,.............

11

3
4

"Do 1101"11 whot you

M II0t hI/V/'

(or ~) .. .. "...............

11
12

"AUolr ,,>id HU M_lip'" prohihittd the II'IIdt of /" IIIXICIIJlII...

5
4;

"A/I";' prohibiltd iII!Ori,,,1ltS olld tlrrir (gIli..tfi) prices.........

"WItD! AIIaIo pnwihituuHdlrb fk phJUItiD".. priu paidfor i/.." _

12
12

7 8
9
11

"0 AUaJU Mmmgff! W/wn.wm.1 tItt for of kld 411'-u... "11w Muse1lp of AIWI (PBUH) JorbtW m/ill, by mll/d"...,.u, aml mu~ .............................. ~ ... ".. ".~

12
12
17

Yow "'"1f nof Iry 10 C411Cd the II>In of OM OIlOIIw." ..........

" /QwI! tIwtIln sIxluld POOl tnW "" ~ <f11 dNrr dweUd' ,.... /I

10 :4 MM IfIIiSlllOflrytoamaldtts.Jaofhis(MwIim)Iwdttr." ._
11
13
14

17

17

"!.4aYIIlht ~plt olont, Allah will giw tlw:m pro"bi011 from

OM O"Olht~ .......... ....... .................... ...... ....... ,., ... "",, .......... ..

"//)'CtII sdi /0 """ onor/w "';tlr 'I.w. and hold ,he 'd~ of ('J;)WJ, ,,

"'TIIm- ",ill com~ d I;"", wMn J>ft>PI~ ClHIIid" ribol Id ",,,,',,,

1tIftI... ' " Irtuh.~........ _ __.................. ___ ~_ . _~~ ... ~_ ... _....... ..

IS
16

Muslims mlUf UqJ Id Ih~rondilicmJ tINy m.>4 .... _ __ .. ....

"TJr, PropItd (PBUH) IOId d ctUIW:I "'" Iliptlklud III ritk 11.. _.

17

-1/ 0lII)IIII<' ~
Y~.il)ll""

",1Odi/ion IrIridI if IlOl iIr ~ Boot '" A/LlL

18 19

......kt' is for liu e.......apo:llDr. ............................ .. "&11t liu buyer d>ld tlt~ ulur Mw Iht Dplld" ......................

20
21
22

... Ia ID"g",'lIey haw IIDI parled ~"d dl"f mU 1~lh",...... ...lUId it iI: IIDI P""'i Jj;bu fo r 0111' oftht m 10 up~"'lc from
Ih~

''''''''''' 20 " " "

m.mm

_'..."
"
"

OIlier. ... ..... ............................ ................. ... ... ............. ..... .. .

"OtU! Uwuld flOI hIlrm othcn lID. Uwuld OM IUk /1("ejil for lIimu/f by """";"8" IIdmt 10 others.........................................

25,92,.215,428

Hadi'~

Ind..

23
24

"The property of a Muslim is "0' lawful (10 be lakell) txUpl by hi' romm!." .... ................................................................. "00 nolmul a merchanl on h is way and enlt/" inre bU$inru
lransaction wilh him .... ...... ....... ... ......... ........ ....... ................. "00 nol oullnd in a salt in order 10 mma ... (olhers)." .... .... . "Chealing a gullible buyer is (a kind of) ribd... .................... . Dont ktepmme!> or shotp without milkingfora long time.. .

25
26

27
2S

He who buY' a foodsruff should nol < il until he hM ell rec.,ved it with exacl full measu",.' ............ ....... ....... ......... . . "He who buY' a foodstuff should nOI l't!Ci!i .... d it." ..........................

" " " "

32 32

29
30

<ell it until he hat

"He who buy. a foodstuff ,hould nor . ell il until he ha< weighed it." ..... ......... ................ ................... ...... ......... ...

31

./ consider that the same ruli"g (of foo<btuff.) is applied 10 alllypN of salN." ..... .... ........... .. ....... ..... ...... ........
"When you buy >emelhing. you should nO/ ..1I il unlil you haWl romplerely ...ceived it." ... ............. ...............................

32

32
32 33
37

33
34 35
36

"Tht Mrnt~gtr of Allah (PBUH) forbade ;elli"g tlu goodl

wh .... thq are !>oug/,t umil..... .................................. ............ Wh"""r ",al'l< Ihe d,,,,,,,,d of" MuJiim to ",<cind a NW'in...

"RiM is like committing adul,.ry thirty six lime< after the "dWlnt of blam." ..... ...... ................ .......... ... ........ ... ...... .......
RiM i, sevent, dcgr... (of cvi/). th least of which rNi:mbu.. .

37

"Gold i, to be paid fOT gold. ,j/VCT for , jiver. wheat for wheat..

37 40,4 1
41
41

38 39
40
41

... if Ihese classes differ. Ihen ",/I as you M.h if paymenl i. mad. hand to hand." .... ........... ..... ......... ............ .......
Gold ;$ !O bt paid for geld with equal weighl. alld silver j, to be paid for si/ver with ",/ual w<lighl. ..... .......... ..... ... .. ....... .....

"The.. will corn ea lime when f>"<Jpie wiJi .a' (i.e., 'ale) riM...

42
49

ifsomebody sdi, pollinated dale palms. the fruits will be for

Ihe stilt/" unle!.!.... .. ........ .... ...... .. . ....... .......... ....... ........ ..... ...... They get ",d or yellow (fit for ruring!." .............. ............ .... "The Me""nger of A.1I~h (PBUH) forbade sellh'g dalt p<llms until the dales art almOSI ripe ............................................... .

43
44

"

"if A.llah dtJtroyed

the fruit, (prtUnt OM the trec< whal ). right would vnr v/you ha. 10 tab . .....................................

'"

. " ., .
"
SI 50

A Summary oflsbrni<: J~

..... rill/t.ty <m

.mil~ and Ulfo

from blight."..__ ...__ ....__ ...

' -~ . wo.,'-.'" " "/0',1,".......... _.... ........................................ . ' ......

_. .J. ." """"" rr

"Hqw (,OItld "'"

lake the monqof JIO"r (Muslim) broflteT

IS 11

fi fiortGung. .............................................. " ... . .

"/ ftJtlj, that AI/oh has mad. iDw!ul to w (MusiimJ) /0 i"'Y ill "dV<ln't jor................................... ,......................................

Whoo ...r paY' in adWlna rh. pde< of a Ihing..................... .

"No Mw/lm ItNlsa w..n to anolher Mu slim twictbllr il will lit liIu grv/ns il onc. ill charil,: ............................................
"/-k w/Ja mina" Muslimfrom "".whip A.llah wi/l ~ Mm from ,~ ItIJrdship1.................... .....................................

" " '" '"

63

63

52

"All)' kHm thal brillt' If profit" (a killd of) rilld." ........... *...

64
64 64 6S

53
54

"If ""f1H'" of you giw. .. w.,II (la wmebotl,) <Utd lh,rr: is 11

gift prutnltd to him or...........................................................
"1 f _ iNkbted 11>

"""gi_ """ .. 104Idof"",asll gift. ..

it.""
it is 1101 la bf fourlmed...

SS "The bQl arnangsl)\lu is he ",ha pill' Iht righu of a/hm

hm.dJomely." .................................................................... ,... ...
56

"When w",,,,,ne ",,,rlg<>g.<J IIn

69

S7
S8

"Tht I1Wf'lgagtd ""i",,,1 can be wed for ,idi"g"l kmg as Jt Is fod."

"7'Itt fIII"IlIIIOr Is rapt>tuibkfx (f'IlPnr) the thing Ittgwl1llllffll."_.
"/flh e <hbl of tm. ofyou U IrtJruftrrr:d (from ",,~r deblor) 10
lho~1d

70

73.74
79,81

S9

rid! dtblor. he

agrn: ..............................................

60
61
62

"Wh""""", is IrrJIIsftnwl (/mm his 4'*".,,) /Cl .. ridt dftnor.

JItouId "t'ft': .......................................................................... "Procnulinalitm (tkUI,J In payingdebl. by o weallhy (>trIO"

is IIIjlUlia................................................................................

19

81
8S
9)

61 64

"0 u.."}'f.' Go la lhe wife oflhi. (man) and ifw co"Jw.a (Ihal w has eam ... IIIM adullery}.... ..................................... "He who u plcaud 10 bf gra"lullh"de by Allah ""dtr Ihe shadtgranud by Him......... ....................................................
"Pro,:mlli""lion in f>Il1ing debu by " .....allhy man ","k"" it

ptrmilJibit 10 6S

w................................................. ,., .............. ,...

91
92

"The Memngtr of AIIIlh (PBUH) interdicted M~ " dh "nd

wld his proptrIJl.................... .................................................

66 61

"'/_ ""'" finds /tU >'t?" tIIingJ will!" t-kno" JI'mOII, Ihm .. . "... ,/Iv (11v bw!krupt m.,..,J die>, tMlI..~ ............................

9).~

68
69

70
71

i" JrotIt of hi'" 0" the P"y 0/ Uhwl....................................... .. .He (Iht Prnphet} ...... Ihall Md not rmclrd the aif< of maturity (ID be able ta fight)." .............................................. . 'Allah dMs "ot accept the pnl)'fr 0/ a wo .... on who has ftaCht-d puberty un/.u. ......................................................... .
"Tradt in tht property of orphan>; olhor ... iu . .. ...... ............ . . ' 11 ....u ~W rtg<Irdi1lf tilt elm of tht "'pha"~ FrIli"n...
"' /uI"o'I' <In orpMn wIw has " propmy bUI I """0'1' nOlhing.. . "'A1Vid t/lt 5t"o'f'II gmu dtsIructior $iru. ......................... _.............

~ MtssengerufAIIdr (PBUH) calW _ '0 I'~t

"'rs!

72 13 74

"C/lllrili",ion is. pmnWibk among MwSill1l uuqt.............. 16 "Dn>w /oI$, suJ;. IIv !nidI. "nd tlwtt Id '~ryo,"", of fO" " Indw: hu wmpanitm ............................................................ 77 "No 0'"'" sJwuld pm-t!nlhu '''ighbor from (wng" -Un fH"I in hil walL .. ...................... .. ...........................................
7S

106,109

" " "" '" '" '"

78 79
80

"'A MIIIii", i. /It;from """'" Iwtd .nd ~ Muslims art "'fr.... "/'4ilh has QV(!" sixI)' 1",,,,m.1, lit. mosI u n/knl of whid! i.......

"Th. Proph., (PBUH) duid.d the ""lidily 0/pru mplion in fW'y joinl undivided pro""'y.............................................. 81 .. 11 Is nOllawfoljor him (Ih. parlner) 10 ul/ Iltal IUlli/lht
82

'" '" '" '"

'"

other pa.tnn givn hi. ",nunl." ............................................ "00 nOl """m;l whaJ the Jews Md oomlllilttd ill order la ",ab lawful ............................................................................

83
84

"... i/ tM boulldarit:s a~ wdl """rktd alld IIv ""')'J IUrd

Jfrttll Qt1' fixtd- .-.-.... _........ _............................ _ . ......

"A!I.M, Wild /It &. U1y<. '1Gm IN Ihi"J"ftlv t..., pan""" .. .

85 86

"'A1/a114ISi</. W pmotl '" long ... 1ft -su Itis (Mushm) bfttdw."_ .
"1. 'AmmM and Sa' d """"me pa,m, ,, in whal "'" would gtl (fro'" Ih. booly................................................................. . "Th. Proph.t (PBUH) eonclwiUd Q am/met wilh Ih. people 0/ Khayba ..... ..................................................... ...... ...... ....... . dolt palmi of KhayOOT......................................................

'" '" '" '" '"

""

8i
88

"Th. Proplvl (PBUH) murMd 10 Iht ItWl 0/ Khayba. Ih,

'"
'42

A Summa". of Wamic

Jun..p~

89
90

'The Prophet (PBUH) ga"" t~ pwpk: af Khaybar the date palms and the land ofKhaybar.............................................. ' People (Ia~downm) uud 10 un! their landJ during the ..................... lifetim. 0/ the M ....nger........... ................ "Th. Prop~t(PBUH) and AM &kr (moy ...Uoh W pleased with him) . mployed........... .....................................................

142

146
149

91

92

"G;"" th. labo ...r hi< wages wJort hi' Sk'rIIt is dry................

152 153

93

"Allah, Exalted w He, says. 'I will be against three (persons) on th. DayofJudgmmt................. . ...........................
"Indeed, smmgth is (in)
aTC~ry." ....................................... .

" 9S
96 97

' No (... ward should w gi ....n/or a) competition ."upt that made ""twun ............................................ ............ .......... ....

'"
156.157 163,164

"The hand (nferring /0 "''''') IIaJ /0 gM b<ick what it had t.Jaon ... . ' Render the trust to him who entrusted you (with it)." ....... .
Veril)l your blood, property and hOnOT a ... SilcrM 10 One another (as Muslims)." .... .................................... ..

98

'"
,OS
166,168

99

"if ",n)'l''U! ~rQrt$ a SPIU' Q/ land unjustly............................. .

100 "W h""",r wrong.< anyone in a matter that can",rm his hOrlor or any olher malleT. ..................................................

"The unjllSt root (planted in someo",,:' land without his permission) has no right." ...................................................... 102 "If 1 gavt Silme on.:' right to anotheT. ............................. .
101

103

'1/0,," tit> a riding ""i",.1 ill one of lhe path .....ys of tIx Mwslilm ..

104

Th.... is no compensation/ar wha/soe>'l1r i, damaged....... .

'" '" '" m ,,.

105 ...... nd All<lh helps a peNon so long as the /'=On help. his (Muslim) brolher." .............................................................. .
106

trusted with something. then he is not /iabk: for compensation (if it is damaged)." ......................................... .

'If one is

107 Th . ... i. no compensation /0 "" JXlid by an honm borrowor.. . 108 The,., is Mo compelWltion to be paid by the trust (if the ..................................... Irusted object is damaged)-.
109 "If anyone brings a ha,.,.,n I<lnd into cultivanon, Ihen it belong.< to him." ................................................................ .. ....
110

'" '"
'" '"

'If anyo"" surrounds a I<lnd (i.e. a

wasteland) with a wall tMII it btlongs 10 him." ........... .............. ................ .. ..............

fudlth Index I11 112 113

114 115

'"

"0 Zubayr! lrrigate (your/and) and then withhold tM wM,r until it """he... ....... . ............. .
"It (_Ier) ';wuld M witlWld until it. height !..com .... ."ual to. . .

"Som. of the Prophet. Companion. ",mt OM a jaurM'J until th'J reMh.d som . of the Arab tribt. .................. .................. .
"Th. M .... Mger of Allah (PBVH) ga"" Uj permission cOMcerning stick., whip ... ... .........................................

'" '"

"'P".

"It i. MOMe of your concern. It has its fut and ItI W<iUr container (,....rvolr). ....
"Wh~"er

lakts a /asl ani",al (that he find.) i. "muiderr:d to ha"" gon e astray. .............................................................. . 117 "Take it, for it is t ithtr far you, for your brother.. ...........
118

116

, ,

'''' '"

.
.

iI man asMd Ihe Prophel (PBUH) about the ruling on

finding lost gold or silver..... .................................................. .

anyone hu m a man in the mosque asking about something h. h... I""t.............................................................. 120 ... i/l. not allowed to pick up ils falltn lhing. .. .
119
I II

"If

'" '"

"If aMyone finas <m animal whose own .... could not afford it. . . 122 Go. It (th. found baby) il frot; you Imve bome its gUllrdwn .. .

'" ".

123
124

"fury newborn i. born with Fiirah (rh. True R1igion of I.u.m).".. .

"0 At....Mg"' of Allah! l ha"" a land in Khaybar which I

'"
"" "" "" m
m m m

'"

'"

prize highly. so ......................................................................... 125 'When a human "'-ing di .., hi. deedsccme to all tnd except for th,.. d ds- ..
126 127 128 ....lIth. rid!

of th e Propha; Comf<lMi<ms ga .... . n.wwmrnt.......

. .. th. land and t,. .. (of an mdowmtnt) will ntilher '" sold nor gj""n as a pr.... mt................... ............ .

"Give presents to on. mlOtkr to gain Ih.lo .... of onc anothe'..... . "Th. Messenger of Allah (PBUH) ustd 10 acrept gifl< and g,w,ome ong on re urn . ......................................................

129
130
13 1

,h,

"GM pn<Stnr. 10 OIl. anolh<'l",jor a ~nt mn""", I"IInoor....

"0 my daughter, I granttd )"" $I"" p"/'" I", .. in AI ;'Uyah .. .

132 133

'HaY< you gi""" equivaltnt O"ts te t""yo"t of)'(Jur children!.. .

"H. who takes pack a gifr (which he has alrtady givtn) is like ~ dog that IIOmit' ................................................... ...... .......... .

'"

A Summary .,(hlam;< Juri.prudence

134

"/I is nor '-ful fur "'1JI"H' to gil't agift lholli1fl it

""'*

txpI fer--.

215

135 "The pleasanUst Ihings you enjoy comt from what you tarn_.,
136 ' You and your propt'rty belong to fOur falhe r: ..................... 137 "Take what is sufficienl for you and your children.. .

215 115,116,398
216.SOS,5(lS

138 '(;i"" prr~nu 10 one another. for <l pr",enl rrmOves rlmcor
from the heart: ............

139 "(The grratest charity is thm ...ho"ch) you give in d.aro"ty when you arr h."lthy and ........................ ....................................... .

"" '"
222.226

141) "Allah made a charily upon you at death by (allowing you to

giw) one-third of your wealth ............................................... .
141

"/I is not permissible fo r any Muslim wh~ has romelhing t~ w ill 10 SMy for lwo nighu without......................................... .

no

142

"I btque<lIhtd IN amoom

..mm A.11aJr has dermniood fur Hirnsdj"..

143
144

"Ind....d. to bequeath onef"ifth (of the property) i, preferred fo r me to bfqufmh ~ quart. r."........ ............................... "..... "It would be belter for peopk to lower Ihe ""Iue of the ""qu ..t from one-third to a quarter.............. .....................

'"
227
227

145 "No bequest must br made to an heir: ,,_ 146 "You would ""Iter your inherilOr< "",althy rather Ihan leaving them poor. ....................................... .. ....... .. ............... .

l,,,,,,,

228.229

147 "You hal'<lift only lillk proptrty,

148

SO

le' i, go 10 )'OUr hd".. ..

"/I could happen that a m"n SPfnd ssixty year< in obedience 10 Allah... ..... ....... ....................................................

'"
228

149

"Causing ha,m by the will i, one oflhe major 'ins............. .

ISO -0'11' Iw lhe righl 10 dttmgr "nar..- 0'11' liUs in 0.."; MjutSl.""" ....
ISI

'" m
231 231

The Mtssmger of Allah (PBUH) decrud ,hat on debt is to be swled before one . ...m is carried out: ................ .. ..... ..
~ .. So fuifill Allah's Righls.

152
1 S3

rrghls. ............
154

as He is maTt mtitled to reuivt His ___ '''' __ .... ..................................

"if Znyd is martyred. fa far is 10 lake aYe' his po,itio":.

"Learn Ihe r~les of i"h"iran"" and teach them to others fa, th"y are half of knowledg... ........... _"

'"
239

I:i.dhh IncIa

I ss
I S6 157

"[ "'"" 1fHJr1,,/1Irtd klIowIttlge ""iU W IIlkm "lid triIlh ",iU "PJ>Nr ..lItiL ...... __ ........ _.. __ .. _~~~_ . _................ _.....
"~ge

""""Y

239

It... t~_ art'l"rV..; allyt~i ..g filf is ut ..........

t~e

"/.mnI lilt ruJ.s oJinhtriuuta,fr r!tqan- pII11 Ifyour fftirion."-

1.53 "W/oorvrr retUU

L59 161
162

Nob'" Qurllll Jioou/d /tQ, .. t"" ",la of

'" '" '" '"

24<l
246.2-tl1 249.282 243.254 279.282

jllh",rit" ..u. ........................................................................... "if al1""e djsjllherits his ""ir.................................................

"Wrll". the "",/4' U fo r Ihe ' mI111C;paIO'............................. .
"Cj ... Ihe Qurln) to

160 "The wald is R bond likt fhaf of kinship. ..............................

' 'OK who " '" ","titl~ to ......

wr-u of ,''''

jllherit",," (pnurjb.td jll ,''''

",jw

Ih",m...............

163

liu rIuu ofkiruhjp." ................... _......................................

"n... ....u.t. (j.e.. loyalty by l'irt..", of ellumciP<l'iDlI) is" bond

'" '"
260 260

164 "The tralldmDlher (of lhe rh<=ud) i. la lot gi""" sixth ..... . 165 "A grlllldmol""," 11'<'"1 10 Abo) &krouking him fo r her u..,,,, of ill""';la""".. ... .... ..... .......... ..... .... ............. ...... .. .... ....... ....... .. 166 "The Proph,l (PBUH) f"tjll~ th., grandmolher 10 on.,sixth of Ihe mare in CIIS< of........... .................................................. 167 "SM ..... s Ih"'firJIgraridmolher ",hom Ih", Proph",' (PBUH) judgtd la lot giWII " sixth...... .... ........................................... 168 "The ...ifo of s,,d 11m1ll"-RJJIt/' IW01I I" lite Mnunger of 1tu..Jt (PBUH) with Iter """ d...,ghltl"l "Nl IRid. ....... _.... _... 169 This ....... lhe """'id ofllte Mnullgerof ItU (PBUH) ill ,.}, Ihis ,.,..nl...... _............. __ .. _........ _............. _...................... _. 170 '"/tbt) Mw.! (_y 1tu..Jt be pi""'" ...irh him) ....... ~ rqardillg a CIIS< of illhtrira"u i" wlrldr................................ 171 ' If" pwwborn <Tits (or sha .... 011)' 01""," .igm iridiarli"g life), Ih",,, it js 10 gel" <ha", of ;lIh"'ri'a"c"'.................................. . L 72 "T"" ft/us dots liar "111;" Iht ...."mb of Ih", mOlher for mo", Ihl1" lwo yea,s. ........................................................... ............ L7J "If "")-I'n", "'"va " pro~rty. ;r gottl" hit h"'irJ................... L 74 "0 M~ ofJJJ..h! I hwr "" hrin.-pl """,...,. dmIghttr."._ 115 "TIlt IIIalmralll"dt il tilt IInr of him w/w) hat "O"t:......~.

'"

262 267 27 1 276

314

315

328 328 332

A Sum_If ofbl .... ic Jwi>pnodmo<

176
~

Mllslim

"'""0/ ~ tire Mlr ofa dlsbdinft'. .......................

3)9
J.4O
.l4O .l4O

177 ..... Muulm "'"lIOt N th~ h~lr of a Chri.tiall O:'~PI whtll....

1 78
~n ~Ialt which II'<IS dMikd in Iht fuWam!c ~rlod of Iz"o,an,t (tht Idhi/iyJ'l'h.................... .....................................

17'9 Islam i1tCrNm aruI nt>'Oi'r dml.I'$.....................................

180 1'topItr!twadiffr"" ' ~_illhmlt- _ _-....
IS 1 "Ha (share aJthe) ;nhtritallCt (aJ tire mllrdtffll pnKlfI) Is It) be ti- tt) tire mlln:ltm:.......................... ............... ..... _.....

341
l43,l4S

182

mllrtkrt, is rro/ to inherit ""yll1jllg (from Ihe jll/lcritallU of the pmorr Ire killed."................ ..........................................

343,344 3SO,3S<1 3SQ,3S<1

351.408,410

]83 "0 you ng ptopk! Wh~ amorrg you has tlte abllit}' to m,,"y $hollld m",,)\...............................................................
]8<1

.MJ."y womm who "It" lav!.., "lid ""1 pro/i[I(...................

18S "T""'1MIIIIt/I imdI.lt as tlwy <m lib ~ m your Itoosa,0"_ ]86 "illlermufSt wilh Ihem r....",.....) Ittu bun ...ad<- J.I""fuillrrto fOil by. ....................................................._..............................
187

351

iI. "",mall Is m,,"i,d fo, foil' ('....mu)...... ..................... ....

]88
]89

"YOIl should not marry Wf)m.II for the sou of their Mauly.. .
Why haw)'Oll 1111/ "",mM" viliill so thal)'Oll may pkoy wilh hu IInd sh~ may pI"y wilh your.. ..................... ............
0 "

353
3S<1

190 "\VMII <In<: ofyou gets tllf<lKtd to a woma"-_... __ ._..... __ .. 191 Ld allon;Jiw il idetltr """ tIonr IhowId be low ki-.-.. J'l"L 192

351 351

"' "sed 111i00i< at Irn (I.e. his fwndr) secrttly, ""Ii/......... _.

353 359
359
361

19) "NOli. $hould lllic fo, th. /!and of a "",man who is IIlrtady
'"KI'gtd to his (Mllslim) brotht,........ ................................... 194 iI. m,," $hould not <id; for th. hand of a WOman who Is already mgagtd to hi. (Muuim) brotht, un/a..................... 195 'Vtril)l All fmI;H be 10 A/Ialo; ..... fmIiH Him, ask His htlp "NI fihgilhUl. .......................................... _... _................. _.

196
197

~..,.. thr IMIIl'

whido. whethtr undtrfaktn seriously

or ill jest............. .__.__ .................... _.._.

iI. /="lowJy ItI/Imld wOman Mould 110/ be glWII ill ,.,arrlagt txctpl aftu consulting h~r... .................................

'"
3M

Hadith Inde.

199 "No marriage (is Ylllid) without (the ~rmwion of) a guardian and (ill p"'~nct of) two just witness .......... ...........
200

36S
372

'According to the Sunnah, tht husband and wi/t who ' ....ar allegation agaiml each Qtht~. ................. .. .......... ........... .. .....

201 ';\11 things which Wcom. u"laWfUI bau~ofbWod ",Iation, a ... unlawfuL......... .............................................. .............. 202 .... man is prohibited 10 marry bath a WOman ~Md her pat",na/ aUMI 01".............................. ........................ ..............
203
204

373 374

'If you did '0. theM you would ..,ver your tie. of kiruhip.......
':-\ mub.rim must neith", m~"y himself, Mar....

205

'The "",rthitst condilions to

~ fulfilled

are .........................

'" '" 'so

380
381

206
2{)7

"Thq ("",mm) maydivorrt Us rhm!" Umar ans ....rtd..... "Tht Prophel (PBUH) forbade shigMr marriage.. ..............
"Sh~1I

20S

I lell you about the borrowed billy gOalr.

10

209

"$elect four (wi..."

kl'l'p) of them.". ................................. .

210
211

"Find .omething (to give Ihe bridet1l a dowry), even if it jj on iron ring.".............. ....................... "The m05t blts.sed of"",men are Ih"", with less expendiIUrt ..

212 213 214

' Do notgo to extrem .... mcoming the dawri .. of women ...

"She is enli/led 1(> gel a proper dqwry like that gien to on .. likt her.............................. ................................. . ' Hold a .... ddingfeast twn if by (offn-iniJ an t sheep."... ' Holding a weddingft ast OM the first day (of Ihe wfflding) i, a duly.................. .............................. .............. ......... ............... . 'The worsl kind offood i, Ihat of the weddingfeast............. . "Maju, marriage publicly announctd."........................ .

'" '" '" '" '" 403,404

." ."

'"

219

TIt. dislinct;"" /It/wet" what is klWf"1 and what j, prohibitrd..

"n... bt<t amongos )Ill' i< IN "''' WM IrMI, hi, /omily bt<t.".. .. ..... "If I ""'''' to command anYOMe 10 prostrale 10 ana/her.... 'If a woman spends the night deserting h., hU5band' bed. ..
"The one who diJlik .. hi. wif may btgel a child from h",.. . . e

'" '"
406
408 408 408

220

221 222 223

408

224 '11 bt/itvillK man mould not hate a bditving WOmaM. ..........

408

A Summ.ry of IsI.mic Jurisprlidcn"" 225

226

"Ve-rily, ~mOllg the most wicked oJ prop~ in rhe Sighl of Allah On Ihe v..y of R..urreclion 1<. ..................................... .
~ffi rmaliw:,

"Do you h~w: a huslumdr" W"~n .M r.p/j~d in Ih~ he (PBUH) said ro her.. .. .................... .............

227 228

"11 concerns rhe woman whou: h""band d"". nol wanl to ket:p hor wilh him any longer. "I giw: my night (i.~. the nighllhe Prophet s~nds with her) to . A:W,ah: ...... ................... . . . .... ... .......... . ................ .
~ .. if a mm! mUlTieJ a virgin and he has already a wife who has bun p,""viousiy ma"ied (I .... nol a virgin). ................... .

."

229
HO

...
m m

"71",.. i, MO lack of mimalio" for yow on Ih~ part of yowr husband................. ..................... . ......................... .

23 1 "If any woman ask, her husband for dirorc.. without .ome strong

"""w" .. ........................................................................

232 233

"This veru: addresus IM man who hate. his w'f................... "The wife oJThdbit Ibn QaY' came to rh .. PropMI (PBUH) and said..................... ...................... ........................... .
"Divorce belongs only to the Ont who lakes /wld of Ihe kg (i.e. the husband) ..................................................... ........... .

2.34 "The most detalable /awful ad ill the Sight of .... 11ah is diwru:
235

".
<27
429,430

236 "Every divoITe i, pn-mwibk n eeprthal by an i">IIne man: .. ..

237
238

"There is no divoIT .. or emancip"lion in cast of duress."..... "The VtNe m eans Ihat women can ~ divorced only during their Slate ofpurity..................................

239

"If ~P"' adht:re to Ihe rm/inance of Allah collctTfli"g divo"e.. .

"Thert ~re thru thing! whkh, whether undertaken seriously or ill jesl.. .

24Q "Il/he Book of .... lIah made lighrofwhile I am amonpl you~!'

241

"" "" "" "" m

<3.

'"

"Aliah hasforg; ...." my folloW<!N Ihe evil thoughts Ihat ocCur to their m;ntU ..................

"Th.. wn of Adam (Adam) .houlcl nOI make a VOW about whal he dot! 1101 pass ...... ........................ .............................
"Le-ave Ihal which mak... you doubt for Ihat which dDtS nol make)",u doubt. ............................. .......................................

tbdith Inda
U S "He slwuld ""I leaw Iris pm>," u"less Irt hftJl'J _nd or

..
'0
449 452
.~

s.....lls >o_llri"I...................................................................
246 247 'Wh"" I~ four monlhs a ... owr. IM husDlmd musl belt p1ly ordertd tit~r glw up I/,L .................................................

"1"Mn do not approaclr ht. {i.t. do Mollraw iMllM:ouIW witlr MrJ ""til. ...................... _.........._.........................._.... _....... _ 2411 VnilJl ( rM>rm:I"t:JI "mI ........td$ of) dttds dt~nd "pori
24~

"Mylr...bcmd, AIO'J IbnlQ.,s,tmil. "...,..""tKd PM, tr- _

...

m
..0
463,464

~ ..if tlrt ... should lot 1tp"",lio" bet"'"'" t~ """ .poUfft in castofU4M ..... ....................................................................... 25 1 ' TM clrild lIdongs 10 Ihe O WM,r of Ihe bt d (i.t. Ih. hu.haMd Or tire ""'.1..,.). ....... ... ...... ................... .... .. ....... ... .................... . 252 "CI!m"",,,d your chi/drm to pmy wh"" IlrtT b OtIIf It...." (yurJ old). ................. _.. __ ........ _...... ____.. __ ....... _..........

250

253 "&rllilh
"""',,~)'

(by ......y---'-'cmkmI .,mglire .Proplret) III ""'"l__,Ir_ . . 1""""'".......................... ...... --.: . ....... s
W/JS

lIS " .....

2S4 "Stay durillg your waiting p.".;od ill IM Iroust wIttI'I! )'<)"
wal'

... ...
m

..S

informed ofyour husband. d ...tlr."......... ......................

IU

255

muclr as you .....111 al Ih. home of OM4' of you aMd wheM you waMI to I/ttP. ....................... .................................. . "Talk

256 .. . Wht " your 1I1.IIS I,,,alion coma, do Mol perfarm pm>,".' 257 "T"M "",ilin: pniod of $I.wt _ if hoo:I "","Ihly ptrMItb." 2SB ' n.., _ ilillg p..,.iod p.-.u:riMl for the di"l'OfUd girl who Iw bt:oll4'1I 11 dUld. ............... _............ __ ....... _..........

I'"

u.w..

'" '"
479.430
479,480

259 "'I is I'/Of lawful fo r a "'11" "'*'0 !Jdit_ in Allah ,,"d IM Last Day '0 _11'1" ",lUll "Moth..,. /raJ WWn.._........................

'"

260 "Ne 0"" dtculd "".... otX1lIII inlerrourst with /I prtgn/lMi IMfIIln.. . 'Ml lhinp which become "nlawful becau .. ofblood ,w,loIU a ... u"lawful b<-ca .... 0 ....................................................... /_

'" '"
'" '"

trua ..... af.-........... __ ..-..........................................................

"11 11ad bn .,....... W in IM Glarioou Qur an lhallt n dt<U sudJ m..u lh. marridgl: ulllawfuL .......................................

"What is .."",,.,/,,1 /lccllust o{blood .,la tiom if "isq

"""'wf"/

'" ."
'S< <S. ..0

"The Q brtttsJjtling ""' ich ",akes ""'~ ~ nlawful i ... nly

'0 Mr=ngrr of.-.Iklh! My!!'OlPlb !tW a I'CSt/ /(/ lh/s MII of millt. "

" '" '" 26. ".

'"

" Summary of !sL.mic Jurispru<koo<

" fitr (tht molhtri) smtll.

btd and /lip nn bmtr for)\M' "'" untiL..

495.497

"Tht maternal aunt iJ of the sa"", slatu, as the mothu..... ..

' You have man right to him as wng a. you do not marry... . "A woman cam. ID the Prophet (PBUH) and said, 'My hl/.Jbtlnd w<mts 10 take oWQy my .,,"......_ ............................. "Thdr rights upon you an that you .hal/ld provirk tht ... with provision and......................... ,...................................... ..

> ,

'" '" '" '"

m

m "Th= ii MifMr alimony nor ICldgingfor J<lu ....................." "Ther>: iJ /la alimony for you unpt if }'OU art pregnant: ... .. m "They or< to I>I! "'1""alrd (by di""n:.;:................................ .
'iI. man asked the Prophet (PBUH), '0 Musmger of Allah!
To whom .hould / show kind"""? . .......................................
~ . Sta't giving

'" '"

''''

fi ...1 10 your ck:~tuhlll" your molh .., your

510
510

father, your sist..,., your brother. ................................ .. "It is tsstntiQI to fttd the slave, c/<Jtm him (pro~rly) and not to bur.Un him with ................ _ .......................................... "Your Mm art your /WO/hm and AII~h h~$ pullh~m undfT your rnmmand................. ....................................................... ~ woman was punilmd bmlUSt of Q cat which sht /lad impriwMd unril il died................. ......................................... "Tht blood af a Mu.lim who te.tifi .. that Ihtre i. no deily
bUI Allah and Ihall am His Mt5U'nger.................................

'"

511
516 517

'"
""
'"

"Th. diyah (blood money) for qumi-prtmtdil4lltd murdtr is to bt madt as much as................................ "Tht dlyoh (blood money) for quasiprt'l1ltditated murder, $1I(:h d$ thd(6)mltlitud with a whip or a srick, iJ.................
"Two womt nfrom (th. tribt oj) Hud/laylfought with tach

518

'" '" '" '"

other and........................... .............. ..................................... . "T/u M ...rngtrof Allah (PBUH) gaW' thtjudgnrtnt that Cl malt or ftmal .ta... i............................................................. "WhOO'vtr" suffers tht murder of Cl ",lariW', ht has thH holct betwttn /W(l options... ............................................................ "No pe,...,n forgi ...s an act of injustict (MM to him) 1nl/ Allah ... IU add 10 hiJ honorfor It.... ....................................... "Th,,,, an thru (p,rsont) whOJtadionJ art not ruorded...

52"
523

528 529

'"

530

l:iodllh lnck.

."
5JO 5JO

287
288

'No Mw/im should be killed in qiidl (!.-gal I"f'tribulwn) for killing a di.beli."',,.... ............................................ ........
' U i. ~n act of th. Sunnah that no fr pe....,n i. to be Idll.d in qiFl>for killing a slave: . ..... .... ... .......... .......... ............... ....

289 290 291

292

'A l'<'N'nt is nollo be km.d Un qiltlV for his/her child:....

"If a prrgnant ...,man inl.ntionally murden .om.o'"'........ "Go home until you give birth:. .... .................. ... .................... "Wh.n you kill (in qi~J. do it in ~ good mann.r (i.e. g.ntly and mercifully)."..... .............................. .............. ......... ...... ......

53 J 534

534
535

293 294 295

296

' (The law pmcribed in) th. Bookof Allah i. qi~ ...............
in Whose Hand my ",ul is. I .hall carry (Jut th. qijdj agai",t whoever (gowrnor) doe. so.......... .......
~ .. By Him

539

542

'If all the people of Sun a had acted rogelh .. in killing him..
Cr""to~". ..

546
547

'No penon is 10 be obeytd in a matter of diS<Jbedi."" to the ......... .............. ............... .............. .. ....... ........ ......... .

297
298 299

"If Ilnought you had intentionally t.stifim against the fint ...
... The Prophe-t (P8UN) forbad. applying qi,as ro rh. culpril until.... . ......... ... ..... ............ .. .. ... .

".
548 549
551

':4 man stabbed anolher in hiJ knee with a horn. so the

injured man rame 10 the Prophet (PBUH) and Ulid

300 "H. wit"" "Ia/i... .. murdered has to .hoost 0'"' of two ways.. .
JOJ

Umar a<ked some of th. Proph,," Companions about the legal judgm."t canuming th .. incident. ............ ...... ......
~ ..

554

302
J03
J04

"Th. Messengtr of Allah (PBUH) gaY< judg.nenl thal the di)'l2h to be paid Iry those p<>ssening ."md. i........................
'A man WItS killed and Ih. M<S5engerof Allah (PBUH) gave judgment that the di)'l2h to be paid was.
"One thousond dinars are to be p<lid (as di)'l2hJ by the rn'ple posstssinCgold..... .. ........ .............. .... .... ..... ..... ......... ...... .... ...

557
558
558

305
306

'(The diy<1h) for (killing) a bdieving .oul (j.e. p'Non) js on. hundred camels: . .................. .... ... ...................... ......... .. ........ .
' Verily, th. diyah (blood money) for quasi pN'rnedjla/~d murd., i. one IzuMdred carnels.". ............ . ........ ...... "Camel> h~ Y< /Jecom. dmr.o . Umar ("'ferring to him.dfJ htlS dreed Ihal.. .................................. ......... ............. ...... ..... .

558 558

J07

558

'"

,., Sum"",,}, cl bbmi< Jurisprudrn

308 "Ouri", IIot lifrti~ rf ''''"ltkmllgtr of A/I"" (PBUH}. lilt

di"'lt ...... divided {nu. '1"<lrtnJ............................................
SW

"" /ulIf '"

'"

~ .. 1'Iu diydr for (killing one "" Ih~ ~

of lite Scripf,,,,,~ is IIot di)"lh paid.for (hUing) " MUJlim.".........................."

SW

-TM diyalt {'('id jar kiI/ing a Magi 'night IIIJtldroJ a;m"nu," "Tht di)'/lh paid fo r killing" worn" .. i,l/fllj Ihe diy<>" paid

560

'" '" '" '"

'"
~

for killing" m"n,...................... ............................................. , "The liiyah (jnd",,,,Uy for a WOUlld) of a WOrn,," jJ tljunllo Ihal of a m"n unl ......................................................... ,........ .
561

~ .. A glr ......h U 10 M g;""" (as <lirah) jor an ,,/>orllon C of IUl " womon/""" (,/u 'riw of) &111" Lahydn.......................... "rile ",,,It "'f'I" (if"" uJJ (IT wIwll, d"mngtrll nnJillltu lite ll>ltJ/ a", ....,,' of JiyoJt...... _............... _._ ......... _._ ....... _.. "Tht ..."... ifcuI offor wlrollydt!~ nW.iIOIU. I~ total olnOu,,' of di,..u.................._...................................... "Tht i"/km",', 10 be p<>it1 i" (OH' IM fi"gr:n or IIot lOts an CUI "ff is tquoJ ......................................... _............................. . 317 'This ami that (rtf!"l"ring 10 rht Iitr~ fin~r and tht thumb) al"f Iht UI'nt............ ....... ....... .... .. ..... .......... ....... .. ...... ... .. ... ... "Fil't camels an 10 he paid (as indemnily) for a loo/h."....... "The IDlo/ omo""t of di)"'h is /0 bt lHl;d for dumag'''g

'" '"
'"

'" '" '" '"

some,,,,e; UMU of .m.IL....................................................... .

"Fiw (omt/s an 10 be p<>id (i" romptllUllicm) for a bt",." c!eorilfg ...,,,"d."..... .............__ ....................................._........ .

no
m

"fifimt camtls.,n 10 be "...id (... 'nd. ,"II;I,) for a bont

/HvUcillK.,Nl-disloaotillg .."""'d.".... _~~~ .. _.... ..............

of d i,w. (blood ""'" . , ) is 10 be paid (... ,,,/kmlli',) for..............................................

(Nood m one,) Is 10 bt p;>id (as /"dtm"/Iy) for Iht , ....uttd IIuII =rh .................... ... ............ .

-o"f Ih,rd of tIw IOta/ 0'"01""

'"
'"

m -o"t Ihird of Ih. di)"'h

'" m
'"

"Th. di)'t'h (illdfmniry) for (bnoki"g) a , ib i, OI1t r amd ...

"'Am, IImu/ 'AI (may Allah bt pleaud Mlilh him) wmte la 'U'''nr J1",,,/.Kh.,Wb askiMg him aboul .............................. .

"F,," a tla l't for him (i.e.. fo, tM murdtm) 10 /lUll Allah would frtt for toch fI'lTt of hi, /IodJL ....................................

Hadith Indo:

804

327

"Bolh 'Abdulldh Ibn Sa!!! and Muhayyi1Qh Ibn MaJfid..,1 forward 10 Khaybar......... ............................ "... ..... ...............

580 582

328
329 330 331 332 333
334

"Iffiftr men ofyou la~ oaths 10 (that) a man oJ thtm (is bdievtd to be guilty). ..................... ............................ ,.,......... "IfptOplt are grlWtui (whal thty d<lim) ON Ixlsi. of theirc/aim ...
0 Commandtr oftht &Iitv=! A Muslim. blood mwt be .(>On "'m~nS<lted........ ,.... ...... ..................................... .......... "No prescribt d p"ni,hmenl u to bt: ex~led tl<Cq>t on him who i, awar< ofll...................... .................................... "........

'"
582

589
590 590

""I'M Mwmgtr of Allah (PBUH) forbade a eculing '1isds (kgal relribulion). ,., .............. ............................. .. ..........

"If an)'llnt~ inttrassion hinders Ihe extc"tion of one of tht

punishmenl' p,.,ocribed by ltllah ....... .................... , .............

"'The Prophet (PBUH) exr:cut,d Ihe puni<hment of iaJhing

596

and banishing (I~ fornicator)....... ... ..................................... 335 "When an unmarried malt commil. fornication with an

IIMmarritdfrmak. ..... ,... ,.,.,.,.,.,.,., ........................................ .

336

th.n !.Ish h..; if she commit. it again then..................... ........................ ............. ..............

"If ,he commits fornication

'96
596
597,622 598 598
601 601 601 604 606 609

337

"'\wrt punishments in the of suspidon "" mud! a, >"'U can" 338 "Maybe you haw: only ",,,. d her, wink.d 01 her, or looked at her (tu.ljuUy).". ............................... ........................................
339 "Why did YO" "oll.aw: him, for III might repmt and ltUah would accept hi< "'pentan'"!...... ............... ,.... .....................

,=

340 341 342 343 344

"Ifyou find an",ne committing the dud of IIu PMpk o/Ut. ,.

.... kill/he Upptr

and Ih.I"ltitr (i.t. the two pnrtnn.). .......

~ .. You mwt haw: sullal intereou"" only through the ""gina and n<Vtr exceta il. .............................................. . ................
~ .. slanderingchast. ,

U""wart bt/inlng women...................

"15 the... anything that call'eo peopl. 10 bt: thrown Into th. Hellfi'" upon Iheir /au< Mh .. tha1l... ..... ...............................
"Ew:ry lx_agt that intoxicat .. i. prohibited (10 drink)."... prohibitaL ....................... ,.. ... ,.,.,.,... ........... ............ ... ... ..........

345

346 "E".rl llItbriant i< an inloxicant. and ' ''''y intoxicant is

610

."

A Summary of hla",ic Juri>prud.=

347 "All inlori.:<IJI' is rJu.t

""'id! ,unlngt:s the m;..J: __ .... __ ...

6 10

"It is nat .. rmody; it is " malady.................."..................... 349 "Allllh ha. n~r mad~ you, nmtdy h, .. prohibitw thing.".. 350 "'/,,"yont drlllles. .", ;n'oxk.. M. 'lint kuI! him.................... 351 M.w it Iht liglUnt prr:sai~ pu"Wllrvnt:

tM,.,_ ...

610 610 611

611 612

ri""l'I4<h~........ .. .. ....................... ..... ........ ..... ....... .. . ..... .......

352 ..... ,Iah has ,uI'I,d wine, tht ont who drinb il.......................

J5J ... II"d the ont ..h" rllh up ill p1ict:.................................... 354 "NcboJy shoWd k ,lull! k" kuItn ,,"IDs.. ......

huJrftI....,,.,

613
611

3SS

"Tht /r""d should ". cuI off for . tt aling $(Imtlhing Iha/ ;$

worth" quartrr of a dinar or mo".". .....................................

3.56 "TN /land cf" dritfis no! ~ flu", cf//Julj;w a ~ rfa diNir...
)S? .,. thief""'" admitted it~iMg WIU ~fo"" the Prophet (PBUH) ... ...... ,., ............. ,., .... ,.,.,., ...........,...... ... ,. .. .....

619
621
622

,"m"""'<'II

.3$8 "'ftM highWdymt n kill and uiu ~ple' pro~rtia, they nI..u ~ kilkd ami cYl/Cifltd........... _ ............... ~. _...........
359 ' If tIw: prtJt>m}' of ""yont' is. Iwilll f.<!U" '"""'r with""t right.. .

6Z7

62$
628

360 ... 0

of Allah! Wh~1 if a mon .om... desiring ID ulu my propn1yr...... .......... ,.,.,.,.................. ,.,.,......... ,.... ,.....
Mffltn~r

.361 ' Htlp J'OIIr (M..wm ) /n-olhtr. wltdh..,............ ~ ........ ~....

362

628
629

'q ~n,..,.,t pnps inft> tM /t(N.ou f>{some peopk witiuJut Ihd~

~rmi... ion .................. . ,... .......... ,., .... ,.,., ..... ........ ,......... ,. .........

363 WMnyou (Mu";"'i)a ,.. holding toon' iingll man

364

ai your INdnond................. _.......................__ ...................~... ......

632 632

"If ""fOnt tria 1 dimlpl thf IIffiUn oflhis nmilln whik il is 0 " "ittd.... ..... ,........ ,............... ,., ...................... ,. ,.,....................

365 "' . Mjo;n)'01I to fta, Allah ........... ,., ....................................... .

366

"q "",.,"" (MlI slim ) dllUliP his. ITligion (~ . op<lf!olius).

kill him.-............ ~_ ............ ~ ....................... _...... _ ........

637M 2
639.645 64 1

367 "'Mm i, built OM (th. follawing) fiw (pri"cipm) ... ......... ,., 368 "Th. kIIots (I.t. /onndholds) of Wo", art about to be
""fOvtled """ ..per QItOthn. ____ ........_......._.....

369 ' Wlly """"')'I< _ impriKJrted him for lit," days.ftd Itim a /oaf of brMJ .wry d ajl., ...... .... ........ ,.,.,., .................... . ,., .... ,. ..

6-41

lhWth Index

'"
642 643

370
371

"I h~"" buM commaMd"" (by Allah) to figh t ogaimt th~ pt opk until rh,,! say. ................... ...............

"It Muslim dON not iMh",il from a disbe/i""",_ ._

"BetW""M a ma" aMd polytheism aMd di.bliq is th~ MtgligtMctofPnlyt'.... _ ._.. ............... _ _ ._ _ . ._ ... .......
"The (oMly)
ran~ntion ~Iwun

372
373 374

645
645

u. and rhem..... ................. b. He. llru madt

;-"I/ah. Almighty aMd

EverM~jtslir

obligations so M 1I0r ntgll>ct thmL.

375 376

65 1
652

"The Prophet (PB UH) forixul. (tating) th . ....at of domrnic donkey....... ........................................................... ................... "The Messttlgt' of ,;,lIa/l (PBUHJ prohibit"" tating aMY 0/ tMfangtd beasts o/prey: . ... _ ............... _ _ _ ... ....... .........
"The Mtsst;ng~rof Allah (PBUH) ord.red us to eat (th. flesh of) hy...a.".. ...................... .......... .................................

653
653

377
378

"The Messmgtr of Allah (PBUH)/orlxld. eati"gj~IM/ah or (drinking) it. milk..................................................................

655

379 "WhOI've, eats from this plant (j.e., garlic) should M ~nt"' ot
our mOjut." 380 "Thi ... rse ttfers to the utensil. proplt shart a .. d OO""W among Ihemstlve, such a.. ............ ................... .............. 38 1 "WhOf'_ believes iM Allah and the lA,t Day should ~r ... hi' gutst generously by giving him his ""'ard... ...................
382
383
3S4

'"
656
657
657

"If you stay with ,om. peopl. and th.y entertain you as they ._ ._ ._ ._ ... ._ should do Jor a gum. ... _ ....... _ ._ ._ ......... _ ._ _ ......
ha~

"Two dead (aMimals) and two (o~aMs rantaining) blood bun mad. lawful to uS (Muslims). .............................. .
66()

"It (tM ~a) i, thal w/rou water i, putt and whoS<' dead animals ( Ihe fish) art /awful (to Nt).".. .. ..............................

385 "TM food meanl in the "'rs/! ;. their slaught. red a"imal<.". ......
386

661 661 661 662 662

"If tM slaughtering 1001 cau>e< blood to gush and ifth. Nam.

oJAll,,}, is m.n/iv".d.................................. ........................... 387 ". _ wil/ uU you why: A. Jar th.loolh. it i. a bone... .1
388 "When you .Iaughter. ,/aughter in a good way.... .................. 389
~ . . On. oJ thecantt/s once ran aW<l)l SI! a

man shot it with an

._ ._ ._ ............. _ . ....... _ ._ .......... _ _ .. ..... .. arrow trw.t stopptd it .. ._ ._ ._ ._

..,

'"

"" '" '"

"Ewry OM off<1" JhmUJ JIunpm IW btifo.........._ "1/1011 h:l1oo:Jt,.,.., fminaf dog (for Iw",inll I'M mtfIfiM 1Ilt.>h~ N4".... ... ~ ... _.. _..........................................~ .... ~ .... __ .

......,
OM

'92 "BLc,.,11WI (1n IN: N~ofAUdr) WIIllAhw Akhar (aM Allah

Le W G..... II!St).............................. " .................. ...... ,............. ,

'"
'"

... Allah ha. made fhi. tawn 0 .. M=) a ",ltduary ,ilia th. day..................................................................................... "H. whD kuPJ iJ dog Uctpt meant far WQ/(h11l8 a MnI.,. (of Mmy) do not rnter Q h<l1lU' ...hnftll thin dog "" a pictun. .............................. _...................................... "If on. Iuu /0 ,,," ..It 0<1111, """ "'...., by Al/,,}, or olMon" kNp qui. ,."....................... ______ .__ ... _....... _..... _.

'" '"

...."gtJ.

1'' .

,n ,n

._r

j,,,

'"
675.676

,
I

by (Ilh" AIl4h if com ...i/lmg "" (JICt of dUbdiq ". pclrthdsm.~....~ ......~~~~ ..............__ ...._. __ . "Ht wIro ~TJ"l AIAm<l""" u "'" 0 10t of us._....... _...... "/I if ,lie uwGll4lk of" ""'" <If hif 1oo1M. ............ ~~._ ........ <00 "My ll/lrion is f"lrd"",fd for wIuItthty rommll by m{IIa}q ... <01 "If inclwks 'if .... u..n wills' {" hi, OG'h .......................

'" ". '"

' ~r SW<'!OTJ

,/Ill"

'" '" on
(;m,678
679,681

""fO"t

<0, "WhtntW"r II.. ~ ..n OGlh 10 do wm.thing............... ........... <0, "If ""fO"t IIlMS 11" OGlh 10 do something..............................

..,

."

"WJoo,rwr ;"/t",io....UySWUTJ fabely bywli"go"" migion (Ilh" llu;,,, ls1tJm .......................... ~~ ......................................

....
'" '"
'" m

..

Wh." "")'0"" l"kG "" ",,'h "'ylng Ih"t ht will k fr fro ... IsIGm . ____ ...................... _.. ___ __ .. _ : I#ttIo .....u apittlion Jot ,.,... ..,,11. arid do lht ",",," _ :._..

'" '" '" '"

'" '" '"

O? "The PrcpJur ( PBUH J t"jol~ IU /0 do ""t" Ihi"IP .........

"MIZkJ.., .. ""'" dot. 1I0l pm'f'nl "nyrhlng (rtortJ 10 folt). 001 ....
" Wh~"tr..,ws

10 obry .... Ilah mu" ~y Him ....................

'"
690

"Tht uplaliol1 jr" (bmlking) ..

..,w which /1 nOI dtji.ud i, .. .

"N.. "" .... laktn iM afir of aMge. (A,.. ..,lid).......................... . Whilt th. Prophtl (PBUHJ ww dditwing" ".mOM. h. Ul .. d IIIIIII..-hl:l rrmlli"Mltlllldilll- SIl .................................... .

..,
413 ' Whotvtr V(}m to disobey A/iah mw/not disobty Him."..
414 415

"TIlt propk ....ho nTt rWtd by" ""'" ..In will""""," /It suufSSjul."...

'"

"Th. M=<ngtr ofAllah (PBUH) ga .... the judgment that flu:

'"

two ad~rJ.rjts........... .................................................. , 416 i'.judge mU$' not judge btr .....en lwo pmot/j ... /lil. h. is in an angry mood...... .. ................... ......,..... _ ._ 417 "Th. M __ ngtr (PBUH) <u':led on. who bribu "lid th.

'" '" '" m

no

I""

one who takes bribe.................................................. .......... ..

"Gift' given to gow:rnors air (considtrtd) iU~.n property....... 419 "Two porIOns rif.r ..d rh, ir case /0 th. Prophet (PBUH) .... .
418

'" '" '"

n,

420 "A,. )'<'U " nrighbor of his?" Th. man r. pllod ;n the Mg<lti..... . 421 "0 M~ r!AJI.v.! Abo) (Ita husband) U a stingy /IIIIn ... . 422 "111. pmmption is "pp/itd in tvl'ry jcinl undivUW pruperty..,....

Sun-m

423
424 425
426

"If people W<'n' t<> be given whnt th.y claim (with"ut pnwing
thtirdaim) dffmdant..... .. ,_ ..................... ,_ .................................. .. .... . ........... _ ......... _ _.... ......

'Proof /itj on tM plaintiff and the ""th is to be sworn by the

716,720

'When tht Prophet (PBUH) was ask. d about tt stimony, he said .. ....... .. ....... ............ ............. .. ........ .............................. .. .
.... until three w"" ~rso/U from amongst his people witn .....

that 5 0 and m ,....... ,., .......,., ........... ,.......... ,.,..... ,.................... .

427 428
429

"Th. M ......ngtr of Itllah (PBUH) decrud that testimony... . The Mth is /0 be sworn by the dtftndant, ......... ............. .....

739,747

'"
'" '"

'"

"T'ht Prop/ltr (PBUH) acapttd rh. ttslimony of a midwifo.".......

'111= is no acw . fo r the one who crmf"""s,........... _ ........ .

430

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