It is a grave sin to
intimidate a Believer or a dhimmî.
It is stated in the
nine hundred and forty-ninth (949) article of Durer-ul-hukkâm in the fifth volume of
Ibni ’Âbidîn ‘rahmatullâhi ta’âlâ ’alaih’: Ikrâh means to unjustly use pressure to force a
person to do something that he does not want to do. There are four conditions
that a certain act of pressure will be required to fulfil so that it may be
called an act of ikrâh: The person using the pressure has to be capable of
carrying out the threat he intimidates the other person with; the person being
intimidated has to know for certain that the threat he is being intimidated
with shall be carried out; the threat he is being intimidated with has to be
something catastrophic such as death and/or amputation of a limb; the act he is
being intimidated into doing has to be something that must not be done. There
two types of ikrâh: An ikrâh that is muljî (compelling, forcing); and one that
is not muljî. A muljî ikrâh is one in the full sense, a heavy one, which eliminates
one’s consent and option, so that it becomes a darûrat, (an inevitable
necessity that compels one to do what one is being intimidated into doing.) And
that ikrâh is either of death or of amputation of a limb, or an imprisonment or
beating that will cause (at least one of these two) catastrophic results. It is
written in Ibni ‘Âbidîn that being intimidated with the threat of destroying
one’s entire property also will be an ikrâh that is muljî. [Hence, if one is
intimidated with the threat of being prevented from earning a bare pittance of
nafaqa[1]
---------------------------------
[1] Please see the eighth chapter for ‘nafaqa’.
and there is the fear that one cannot
find another job to work at, the ikrâh will be one that is muljî.] Ikrâh that is non-muljî will eliminate one’s consent only; an example of which is to be
intimidated with being kept in prison for a period longer than a day or with
being vehemently beaten. [This type of ikrâh would constitute an ’udhr, (i.e.
an excuse, a good reason,) for kufr-i-hukmî.] (Please see the second paragraph
of the twenty-ninth chapter of the first fascicle of Endless Bliss for ‘kufr-i-hukmî’.)
To scold or castigate people of knowledge and honour will mean ikrâh for them.
To send one’s mahram relative to prison will mean ikrâh for one. Commandments
of the Sultân, [of the government and of laws] mean ikrâh. There are various
things that one may find oneself being intimidated into doing:
1– Things that are permissible to do but (better because) it yields thawâb not to do. Examples of them
are to make a statement that causes unbelief and to speak ill of the Messenger of Allah as a result of an ikrâh that is muljî. However, the person who is being
forced to do so will have to make tawriya (or tevriya), i.e. he has to think of someone else with the name Muhammad, (supposing he is being intimidated into
speaking ill of Muhammad ‘alaihis-salâm’, the Blessed Messenger of Allah;) and he should be innerly convinced that you are prostrating yourself as an act of
worship towards Allâhu ta’âlâ, (supposing you are being intimidated into prostrating yourself before icons or idols.) Even with that
inner conviction, it would be an act of makrûh to prostrate oneself before such things. And if the person under duress does not make tawriya although he
remembers that he should do so, he will become an unbeliever. He will be excusable if he does not remember to do so. Other examples in this category are: Not to
perform namâz (five times daily); (disobedience to) any of the Islamic commandments declared in the Qur’ân al-kerîm; to destroy one’s own or someone else’s property; to vituperate
or slander a Muslim; to commit an act of harâm under duress, e.g. a woman’s
fornicating or a person’s committing an act of sodomy. It is dhulm (cruelty,
wrongdoing) to extort someone else’s property. Like unbelief, it will never
become halâl. It is a sin graver than consumption wine to extort someone else’s
property, even if he is a dhimmî. A person who has committed the act of ikrâh
will have to repay the property. In an act of ikrâh perpetrated by someone
other than the Sultân, presence of the person who gave the commandment or of
the person he appointed, is essential. Sodomy is an act of harâm graver than
fornication. It is in this category of ikrâh for a person to
divorce his wife. [Hence, it is permissible for a woman under an
ikrâh that is not mulji to expose her head (when she goes out or is in a mixed
gathering).]
2– Things that are
harâm to do under an ikrâh that is mulji. Examples in the category are: To kill
a Muslim or a dhimmî or to cut off one of their limbs; to subject them to
imprisonment long enough or to battery vehement enough to cause such
catastrophic results; and for a man to fornicate under duress. In an event of
killing (under this type of duress), the qisâs (retaliation) will be inflicted
on the person guilty of the ikrâh, although the sin for killing will be blamed
on the killer. If a person not under an ikrâh permits that his arm be cut off,
it will be sinful to cut off his arm, unless it is necessary for medical
reasons. Supposing a person is being intimidated into killing another person;
if the person intended to be killed consents to his being killed, he will be
sinful when he is killed. If the President of the State intimidates a person
into cutting off someone’s limb with the threat of death, it will be
permissible for that person to carry out the amputation. If a person is
intimidated into killing himself with the threat of death, it will not be
permissible for him to kill himself.
[Hence, supposing a
person (under enemy attack) knows that when they fall into the hands of the
enemy they will be killed after gang rapes and vehement torments; it will not
be permissible for him to kill himself and his closest relatives. A woman’s
being subjected to a rape under duress has been dealt with in the first article
above. It is stated as follows in the chapter entitled Subject of Jihâd (of the aforesaid
book): “If a person knows that he will be killed if he attacks the enemy and
that he will be taken captive if he does not (attack the enemy), then he should
not attack the enemy. If he attacks the enemy because he knows that he will
inflict some losses on them and thereafter gets killed by the enemy, his attack
will have been a permissible one. It will not be permissible, however, for him
to attack if doing so will be of no effect with respect to losses on the enemy.
Not so is the case with dissuading fâsiq Muslims from sinning.” [Please see the
fortieth chapter of the first fascicle, and the fourth chapter of the second
fascicle, of Endless Bliss, and also article 1003 in the book entitled Majalla! The fifty-fifth
letter in the third volume of Maktûbât-i-Ma’thûmiyya, (by Muhammad Ma’thûm Fârûqî ‘rahmatullâhi ta’âlâ ’alaih’,
1007, Serhend – 1079 [1668 A.D.], the same place; the third blessed son of Imâm
Rabbânî ‘quddisa sirruhumâ’,) provides detailed information on this subject.]
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3– Things that are halâl, and even farz
to do, and sinful not to do and die, for a person under an ikrâh that is muljî.
Examples of this case are to drink wine and to eat lesh or pork. For, being
under an ikrâh that is muljî is a darûrât that makes consumption of these
things justifiable in Islam. When someone else’s property is annihilated by a
person under an ikrâh that is muljî, it will be paid for by the person guilty
of the ikrâh. In the case of an ikrâh that is not muljî, the compensation will
incumbent on the person who has done the annihilation.
Agreements [aqds] made
under an ikrâh, muljî and otherwise alike, will not be sahîh (valid). For,
consent on the part of both parties is essential for an agreement’s being
sahîh. Supposing a person (under duress) transacted a business such as selling
his property, purchasing something, renting out, giving a present, cancelling
or postponing a debt (to be paid to him), avowing that he is indebted; when he
attains safety from the threat he will make a choice between denying the
transaction and consenting to it. A person who is in possession of property
sold (by its former owner) under duress, is the owner of that property. For, a
sale made under duress is fâsid. (Please see the third article in the
thirty-first chapter of the fifth fascicle of Endless Bliss!) [It is not
permissible to intimidate or beat a person into signing a confession at a
police station. A person has the right to retract the confession he has made
under duress.]
Interactions such as
nikâh (marriage performed in a manner prescribed by Islam), talâq (divorce,
dissolution of nikâh), nazr (or nedhr), oath, rij’at, i.e. remarrying a woman
that one has divorced, will be sahîh also when they are performed under an
ikrâh that is not muljî. When the ikrâh is over, the nikâh and the talâq may be
repudiated. Yet the nazr cannot be. A person who has given something for the
fulfilment of the nazr made under an ikrâh cannot demand it from the person who
forced him by way of ikrâh. If a person is intimidated into forgiving his
debtor or into turning a renegade, the outcome will not be sahîh.
An ikrâh that is not
muljî cannot be grounds for consuming lesh, blood, pork, or wine, or for
annihilating a Muslims property. For, an ikrâh that is not muljî will not
constitute a darûrat. One may eat lesh or pork or drink blood or wine lest one
should die. If a person dies because he does not eat lesh or pork or drink
blood or wine (although it is the only available means to keep him alive), he
will go to Hell.
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Supposing a person is being intimidated
by way of an ikrâh that is muljî to drink a certain glass of wine or to sell a
certain unit of property belonging to him; he will sell that property of his.
When the ikrâh is over, he will have a choice between retracting the sale and
consenting to the outcome. It will also be permissible for him to drink the
wine. If he gets killed because he has refused to drink (the wine) or to sell
(the property) because he did not know that it would be permissible to do so,
he will attain martyrdom. Confiscation on the part of the Sultân, i.e. his
demanding money or property in an unjust and cruel manner, is a case of ikrâh.
In that case, it will be permissible to give what is demanded.
HIJR (forbidding) — It means to ban
certain people from certain agreements and/or transactions. [Please scan the
book entitled Majalla from article 941 on.] If a child is able to discern that
something bought will be the buyer’s property and that something sold will no
longer be the seller’s property, this child is called mumeyyiz; that is, discreet,
(or discriminating.) All sorts of agreements performed by children who are not
mumeyyiz are bâtil. (Please scan the thirty-first chapter of the fifth fascicle
of Endless
Bliss for
‘sales and agreements that are bâtil’.) Agreements that entail loss and which
have been made by a child that is mumayyiz will not be sahîh, even if they have
been made with the permission of the child’s walî. Its performing a talâq,
manumiting a slave, avowing that it is indebted to a certain person, lending,
giving alms or a present are a few examples. Its agreements with profitable
results will be sahîh, even if they have been performed without its walî’s
permission. (Please scan the twelfth chapter of the fifth fascicle of Endless Bliss for ‘people eligible
for being a child’s walî.’) Examples of this case are a child’s accepting
presents or alms and taking the money paid for work it has done for payment. If
a discreet child acts as someone’s deputy, the statements it makes pertaining
to property or talâq on behalf of that person will be functional and
acceptable. As for the agreements that it makes and which may entail profitable
results as well as loss; their being sahîh requires its walî’s permission. This
rule applies to the sales and purchases it carries on by using its own
property. Old people who have become senile are like a mumeyyiz child. Their
sales and purchases are subject to acceptance or rejection on the part of their
walî. If they destroy someone’s property or life, they will have to pay. The
twentieth article of the ruinations incurred by way of speech dealt with in Hadîqa reads as follows: “As
it is forbidden for a child to transact with its property;
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likewise, its serving another person will be permissible only if
its walî allows it to do so. Supposing a small child fills its container from a
pool and thereafter pours the water back into the pool; it will not be halâl
for anybody to drink water from that pool. For, the child has filled its
container with water that is mubâh (free) for the public; the water in the
container is its personal property now; when it pours the water into the pool,
the child’s right has mixed with the water in the pool. Its parents, if they
are rich, cannot drink or use any water from that pool; nor can anyone else.
The only way to make it permissible for them to drink or use that water is to empty
the entire pool and thereafter refill it [or, by following the stages of
distribution of the shares in a shirkat-i-mulk (company of property), as explained in article 1128 of the book
entitled Majalla, to take from the
pool an amount of water equal to the amount that the child poured into it, and
give the water to the child’s walî. (Please see the first article in the
forty-fifth chapter of the fifth fascicle of Endless Bliss!) This method is
written also in the final section of the booklet entitled Bey’ ve Shirâ (Buying and Selling).
The walî will use the water he is given, for the child. So is the case with the
water that a child carries home from a public fountain. The walî is not
accredited to give the child’s property to any one as a present. If he wants to
give it to someone as a present; first he gives its monetary equivalent to that
person as a present. Thereafter, that person spends the money buying the
child’s property from the child’s walî. The money is the child’s now. As for
the things which the walî has purchased for the child by spending his own
money; he may give them away as presents at will. Property that a child gives
its parents will not be their property.]
It is stated in Ibni
’Âbidîn: “Accoding to the Two Imâms, (i.e. Imâm Abû Yûsuf and Imâm Muhammad
‘rahmatullâhi ’alaihimâ’,) a sefîh (spendthrift) person, i.e. a person who
wastes his property as he makes a living, i.e. a person who has reached the
ages of disretion and puberty but who spends money needlessly at places that
are justified neither by Islam nor by reason or at places that are harâm, will
be forbidden (hijr) by the judge as if he were a child. The fatwâ is in
agreement with this ijtihâd. Any needless expenditure will make a person sefîh,
be it gone into for doing charity; for instance, a person who spends more than
necessary for building a mosque will be sefîh. A person who commits sins that
do not involve expenditure of property, such as consumption of alcoholic
beverages and fornication, will not be called ‘sefîh’; he
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will be called ‘fâsiq’. A person who is cheated too much in
buying and selling will be called ‘sefîh’. Religious teachers who misguide
their pupils out of Islam by teaching them hîla-i-bâtila, unlearned doctors and
pharmacists, tradesmen who perpetrate fraudulent bankruptcy, ignorant judges,
fraudulent salesman, and profiteers will be subjected to a ban. They will be
banned from their business. Ignorant and fâsiq muftîs also will be banned.” It
is stated in Mejma’ul-anhur: “According to the Imâmeyn (Two Imâms), a debtor will be banned
upon his creditor’s demand. The judge will ban the debtor after sending him to
prison. Thereafter, he, (i.e. the judge,) will get some of the debtor’s
property sold, pay the nafaqa of people whose nafaqa is incumbent (on the
debtor), and spend the remainder paying the (debtor’s) debts; the debtor,
however, should be informed about the entire process. If the money does not
suffice, the judge will have the debtor’s other property that is more than
necessary sold. If the money thereby obtained is not sufficient, either, then
the judge will have the buildings belonging to the debtor sold, if they are
more than he needs. The fatwâ also says so.” If a person has been banned
because he is a spendthrift or as a result of bankruptcy, his statements
pertaining to nikâh and talâq will be valid. For, expenditure for a marriage is
included in vital needs. The spendthrift’s property will be delievered to him
by the qâdî, [i.e. judge,] so that he will separate one-fortieth of his property
for the payment of zakât. However, lest he should go into inappropriate
expenses, the judge will appoint a reliable person to keep him company. He will
not be prohibited from going on hajj, either. The money he will need for the
journey will be entrusted to a reliable person lest he should waste it. The
father or grandfather of a child can be its walî, but (one of) those of a sefîh
man, (i.e. a sendthrift,) cannot be his walî.
When an indiscreet
child reaches puberty, he gains the right of disposition over its property.
However, unless it is seen that he is not a sefîh person, his property will not
be delivered into his hands until he reaches the age of twenty-five. According
to the Two Imâms, (i.e. Imâm Abû Yûsuf and Imâm Muhammad,) and also in the
other three Madhhabs, (i.e. in the Shâfi’î, Mâlikî, and Hanbalî Madhhabs,) even
if he lives to an old age, his property will not be delivered to him unless it
is observed that he is a discreet person, (i.e. not a sefîh one.) His power of
disposition over his property will be as much sahîh as will be determined by
the judge. If this person claims that he is discreet and his creditors argue
that he has not freed himself from sefâhat, (i.e. from the state of being a
sefîh
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person,) and if both parties produce witnesses, the judge will
endorse the person’s discretion.
If a boy beyond the
age of twelve or a girl over nine years old states the he or she has become
pubescent, his or her statement will be taken to be true. If they do not say
so, they will be accepted to be pubescent by the time they reach beyond the age
of fifteen. Information concerning a child’s walî is available from the
twenty-ninth chapter of the fifth fascicle of Endless Bliss.
Supposing a person in
his death-bed appoints someone as his small child’s wasî concerning the legacy
that the child will inherit from him and so that that person (appointed) will
provide the child’s needs by spending the property he is to leave behind for
the child; the child cannot get his property from that wasî even after reaching
the ages of disretion and puperty unless he proves to be discreet. The wasî
neither has the right to perform a nikâh on the male child’s behalf, nor can he
stay in halwat[1] with the female child. People who adopt children must be
watchful about this Islamic rule.
Supposing a person in
his death-bed appoints someone as wasî (executor, guardian) to administer his
will or to care for his orphan child and the latter accepts it; the person
appointed cannot withdraw from his position of wasî after the invalid’s death.
The wasî appointed by the orphan’s father or grandfather or by the judge will
have adopted the orphan as a child only for the purpose of acquiring power of
disposition over the orphan’s (inherited) property. [When a man adopts a girls as his child, she can not be his
own daughter in the full sense. She will always be nâ-mahram to him. When she
grows up, he will not be allowed to look at her, with the exception of her
hands and face, or touch her. That girl has to cover herself from that man. The
man may marry the girl or let his son marry her. Her cannot go on a safar,
(i.e. a long-distance,) with her or stay in halwat with her. They cannot
inherit property from each other. So is the case with a boy adopted as a child
by that man. When the boy becomes pubescent, he will be nâ-mahram to the man’s
wife and daughter. He will be allowed to marry that girl. If that boy marries
a(nother) girl, the girl will not be the man’s daughter-in-law. She will be a
woman nâ-mahram to
---------------------------------
[1] Please scan the eighth
and the twentieth chapters of the fourth fascicle,
and also the twelfth chapter of the fifth fascicle, of Endless Bliss,
for ‘halwat’.
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him. It is stated in al-Halâl wa-l-harâm: “It is harâm to declare a nâ-mahram child as one’s own child.
It has been interdicted by the fourth âyat-i-kerîma of Ahzab Sûra.” It is
stated in Qâdî-Khân: “If a girld over the
age of puberty or her walî is intimidated into a nikâh by payment of an
inadequate mahr or with someone not her kufv, (i.e. no match for her,) they may
cancel the marriage thereafter.”]
It is stated in Eshbâh and also in its
commentary entitled Uyûn-ul-besâir: “No act of worship is farz for a child; not even zakât, in the
Hanafhi Madhhab. And nothing is harâm for it. The (chastisement termed) ta’zîr
will be inflicted on it (when necessary). Yet it will never be punished with
the (clogging termed) hadd or with the (retaliation termed) qisâs. Premeditated
homicide perpetrated by a child will be treated as homicide by mistake. It has
been stated (by scholars) that it is wâjib for a sane child to have îmân, (i.e.
it has to become a Believer in Islam.) There is not a consensus on whether it
is wâjib that the payment of Sadaqa-i-fitr and the performance of Qurbân be financed
from the child’s own property. (Please see the third and the fourth chapters of
the fifth fascicle of Endless Bliss, for ‘Sadaqa fitr’ and ‘Qurbân’, respectively.) If the child has land, he will have to pay ’ushr or kharâj. If the child is rich, he will have
to pay for the nafaqa (living) of his wife and kinsfolk. He will attain thawâb for his acts of worship that have not been (performed in a way termed) fâsid.
Plenty of thawâb has been promised (by Allâhu ta’âlâ) for people who provide a child with teachings (of Islam) and who make him perform acts of charity. A child cannot be imâm for adults, (i.e. he
cannot conduct a namâz in jamâ’at performed by adults.) If an adult conducts a prayer of namâz in jamâ’at, the child (being the only person) making up the
jamâ’at, the thawâb for namâz of jamâ’at will be attained. (Please see the twentieth chapter of the fifth fascicle of Endless Bliss for ‘namâz in jamâ’at!’ A child cannot be walî for another
person. It will be permissible for him to make (the speech termed) Khutba at
prayers of namâz on Fridays as well as on the days of ’Iyd. (Please see the
twenty-first and the twenty-second chapters of the fourth fascicle of Endless Bliss!) A child may be a
Sultân, i.e. President of the State, yet in that case he will have to appoint a
governor to preside over the people. With the proviso of a permission given, he
may file a suit, and the oath he takes will be accepted. His recital of an azân
(or adhân) will be sahîh, but makrûh. When he performs an act of farz-i-kifâya,
the adults will not be absolved from having to perform it. It is
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permissible to allow a child to perform a certain transaction.
When the child says that he has been given permission or that, for instance,
what he has brought was (sent as) a present, his statement will be accepted. It
will be permissible to buy something he is selling, after inquiring and finding
out that he has been given permission to sell it. So is the case with accepting
a present or alms that a child brings [and which is from someone else’s
property]. When it is doubted whether the child has been given permission, it
will be necessary to inquire into the matter. It is permissible to give a child
a copy of the Qur’ân al-kerîm so that he will learn (how to read) it. It is permissible to
pierce a small girl’s earlobes so that she will wear earrings on them. Food
brought as a gift to a child can be eaten only by its poor parents, and then it
should not be something that the child vitally needs at the moment. [It cannot
be eaten by other people, poor as they may be.] If it is something that its
parents do not have although they are not poor people, then they can eat it,
provided that thereafter they will pay the child for it. Something brought as a
gift to a child’s parents with the understatement that it is intended for the
child lest the parents should feel obliged, should be taken to have been
brought for the parents. (If it is something to eat,) the parents, rich as they
may be, eat it or offer it to others to eat. A discreet child may be appointed
as deputy for doing buying or selling or for paying zakât. He cannot be a kafîl
(surety) even if he has been permitted to stand surety. It is wâjib to respond
to a child’s salâm (greeting, salutation). It is permissible to greet a child,
(i.e. to say, “Salâm-un-’alaikum,” to a child.) It is sahîh for a child to
become a Muslim, and not sahîh for a child to become a murtadd (renegade). When
a child does something that will make it a murtadd, it will not be put to
death. An edible animal that a child jugulates after saying the Basmala, (i.e.
after saying, “Bismillah-ir-Rahmân-ir-Rahîm,”) can be eaten. It is permissible
for it to look at nâ-mahram women or to stay in halwat with them. A small girl
may go on a safar with a reliable man who is not her mahram relative. A person
who abducts a child or kidnaps a girl or someone else’s wife will be sent to
prison, being kept there until he brings them back or it is heard that they are
dead. If a child is employed at a risky job and dies, the employer will have to
pay a diyat for it. If a child falls into a pit or into a pool of water and
dies, its parents will not be punished for it. If a parent drops his or her
child and thereby causes its death, he or she will have to fast for sixty days
running for kaffârat. It is not permissible for a child to leave for any sort
of safar without a
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parental permission. It is farz-i-’ayn for a child to obey its
parents’ orders unless they involve acts of harâm. It is stated in a
hadîth-i-sherîf quoted in the initial paragraph of the section dealing with
ruinations incurred by means of one’s feet in the book entitled Berîqa: “A person who looks at
his or her parent’s face with compassion will be given such thawâb as would be
given for an acceptable hajj performed.” Even if the child has reached the age of
puberty, it will not be permissible for him to leave for a dangerous safar or
if his parents need him, without their permission. In the absence of parents,
grandparents will substitute for them. Hajj performed without their permission
will be makrûh. Parents, or the teacher to whose care a father has entrusted
his child for education, may chastise it by beating it three times with their
hands. It is wâjib for the father to finance the marriage of his poor son as
well. A child’s father or grandfather will act as the child’s walî to spend its
property buying its needs. Its mother cannot be its walî to perform this duty.
If the child is staying with its mother, she may buy the child’s needs by
spending its money.”
It is stated in the
five hundred and ninety-first (591) page of the second volume of Hadîqa: “A hadîth-i-sherîf
reads: ‘It
is halâl for a woman who believes Allâhu ta’âlâ and the (existence of) Judgment Day to go on a three days’ journey
in company with her husband or one of her zî-rahm-i-mahram relatives.’ When the Messenger of
Alah was asked, ‘Yâ Rasûlallah (O Messenger of Allah)! My wife is leaving for
hajj. And I am leaving for jihâd. I will not be able to
accompany her.’ The blessed Messenger said, ‘Give up jihâd and make hajj with your
wife!’
According to this hadîth-i-sherîf, a husband will have to desist from jihâd for
the purpose of taking his wife out for hajj if she has no other mahram relative
to join her. For, it is an act of farz-i-’ayn to protect one’s wife from
harâms. As it is not permissible for a woman to go out for a safar
(long-distance journey), without a mahram relative with her, likewise it is not
permissible for men who are nâ-mahram to her or for other women leaving for a
safar with their mahram relatives to take along a woman (who does not have a
mahram relative with her). As well, a woman has to have her husband or one of
her mahram relatives with her so that she may go out for hajj. The husband of a
woman’s sister or maternal aunt, i.e. a woman’s brother-i-law, is not her
mahram relative. [That people in this group are not mahram relatives is written
in Ni’mat
Islam,
in its chapter dealing with ‘haj’ as well as in the fatwâ of ’Alî Efendi.] The mahram relative
(to go with her) has to be a reliable person
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over the ages of discretion and puberty. He may be a dhimmî as
well as a Muslim. He cannot be a mejûsî (fire-worshipper). A Muslim woman
cannot set off for a long-distance journey (safar) with a mejûsî mahram
relative of hers or with a child who is her mahram relative but below the age
of puberty, although he may be a discreet one. [Presence of such a child (at a
place where a man and a woman are in private) cannot undo the state of halwat]
An attractive girl who has not yet attained puberty is like a (grown-up) woman.
That means to say that she cannot set out for a safar without a mahram relative
to accompany her. In the Hanafî Madhhab it is harâm, according to a consensus
of scholars, for a woman to set out for a safar without one of her mahram
relatives. In the Shâfi’î Madhhab, it is permissible for a woman who does not
have a mahram relative with her to join a group of trustable women and set out,
only if the purpose is to make hajj.” A woman in the Hanafî Madhhab cannot
perform a hajj of this sort by imitating the Shâfi’î Madhhab. For, imitation of
another Madhhab is an avenue of latitude intended to be had recourse to as a
means for getting out of a quandary fallen in during the performance of an
Islamic commandment. Why should a woman (in the Hanafî Madhhab) be compelled to
imitate the Shâfi’î Madhhab in the face of the fact that it is not an Islamic
commandment for a woman without a mahram relative to go out for hajj. In other
words, it is not farz for a woman who does not have a mahram relative to go on
a hajj.
The following excerpt
has been borrowed from the appentix to article [176] in the book Durer-ul-hukkâm:
The father, who may be
an ’âdil one as well one whose conduct is not known well, is accredited to sell
a building or any other property belonging to his child who is not mukallaf
yet, to himself or to others, at a market price or at an exorbitant price, and
to spend the money for the nafaqa (living) of the child, or for his own living
if he is poor. If the father is a fâsiq or wasteful one, he will not be
accredited with a sale of that sort. (If he does,) the child will be accredited
to get the sold item back from the purchaser when it attains puberty. However,
a sale that he makes at a price twice as high as its market price will be
sahîh, and the themen (money) earned thereby will be entrusted to an ’âdil
person for safekeeping. A poor father may sell only the movable property of his
absent grown-up son for his own nafaqa. He cannot sell his building(s) or landed
property. If the father does not exist and there not a wasî, either, the
father’s father will be accredited to make the sale. A
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wasî, on the other hand, would be
accredited to sell only the child’s movable property, and then it could only be
sold to others. If the wasî is a person appointed by the dying person, he will
also be accredited to sell the child’s property to himself at a fifty-per-cent
profit. Yet a wasî appointed by the judge of lawcourt will by no means be
accredited to buy the property. Yet he will be accredited to sell the
(deceased’s) movable property for the nafaqa of his orphans. The wasî cannot
sell the deceased’s building(s) or landed property despite the existence of
movable property in the ‘taraka’ for the purpose of the deceased’s deyn (debt).
Nor can he sell any property in excess of the deyn.
If one of the
inheritors pay a debt of the dead person he may collect it from the ‘taraka’.
If the dead person’s inheritors pay the dead person’s debts, the creditors (of
the dead person) cannot demand that the debts be paid from the ‘taraka’
(property left behind by the dead person). When the debts are in excess of the
‘taraka’, the inheritors cannot say, “We will save the ‘taraka’ by paying the
amount of debt equal to the value of the ‘taraka’. A person who is not one of
the inheritors cannot pay all the debts and then exact the goods in the
‘taraka’ from the creditors by force.
If the debt is in
excess of the ‘taraka’, and if the ‘dâyin’, i.e. the gharîm, i.e. the creditor
is only one person, all the ‘taraka’ will be given to him. If there are more
than one creditors, the ‘taraka’ will be divided and each creditor will be
given an amount in proportion to the debt owed to him. A debt due to a waqf
takes no priority over the others. If, after the division and distribution of
the debts, another creditor appears, the entire division and distribution will
be rearranged. The inheritors cannot be forced to pay the dead person’s debts
from their personal property.
There are just two things whose separation
Will scourge all, with
no one an exception;
Eyes that shed blood would fail to pay their rights:
Young
age; and brother by religious rights!
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