Professional Documents
Culture Documents
Editorial Staff......................................................................... xi
Admowl~dgemenl ........................... _...................................... x!!!
Tran$lator'l Prerace..............•.....•.... _ .....•....•..•. _........... _........ n
Introduction ...........................................................................
I TRADE TRANSACTIONS
Ch. pur I Trade 1hInsaclionl. ... ~_ ....... _. ___ .. _... __ .... ____ .. _.. _... _ 9
Chapter 2 Proh ibitw T...,w" T.. nsactions ........ __ ...............__ ~........ 15
Chapter .3 Tnade Trano.act ions Condition......................................... 19
Chapter" Option in Tra<k Transaction!..... _.... _............ .................. 23
Chaplet 5 Dispoul of. Pun:huod Commodity Mon. R«eipt
and RN<;i nding of aargains ............................................•
Chapterti Rib~ ............. ........................................................................ "
Chapler ' Selling A.aftS.._ ...•.•.•....•.... . _... __ ._.... _........ _..... ___ .. _... _ "
47
11 PARTNERSHIP
Chapter I Kinds of l'art nc:n.hip... ___ .__ ... ___ ..... ___ .__ .____ ._..... 125
Cha pter 2 'l n~n (Coopcntlve) PartnerJhlp..................................... 129
Chapter J Mull1robah (Sp«ulativt') Par1n~ip..._. __ ............ _.... III
C h.apter4 Repulablr Partner. Manua l, and Comprehensive
Partnersh ips.......... ............................................ 135
III SHARECROPPING AND RENTING
Chapter I ShartCropping (Muzdm'oo and MlH.Ilqdh)•. ,,~ __ .____ 141
C hapter 2 ~ntingThings .nd Hiring ~oVlt:' ~ias (1j4...h)... _ 147
Chapler 1 Comp<tition (Sabq)... ................ ".... ................................ 155
Chaplu 4 Lending Somtthing for \J$r ( . Ariy<lh) .. ____ .___ .•. _••. _ 161
Chapler 5 USurpation.................. _. __.. _..... _. __ ....... _______ .... __.... 165
Chapler 6 Damage and D~magef .. _.................................................... 171
Chapter 7 TrllSts. __ ........ _... __ ...... _.......... _.. _................ _............ _. ____ In
IV RECLAMATION OF WASTELANDS AND
POSSESSION OF ALLOWABLE OBJECfS
Chapter I RKLamation ofWu\(Land$. ...................... _.............. _...... 183
Chaplu 2 Job Wagn (ja·t!IDh) ___ .. __ ... _... _. ____ ..... _....... H ........ __ 189
C hapter J Finding Lof t Object< (Luqa[!lh) ........ .. ..........................
Chapter 4 Foundling .... _.............. _........................ _.................... _......
'"
201
aa. ptu 5 Endowmell' (W~<U). ___ .H __ ._~ _ _ _ • • • • • _ _ • _ _ _ • _ _ ••• _ _ _ • lOS
Chapter 6 Gifl and OOO.lion.............................................................. ZIJ
• A SU ........,. 01 humic JurupruJ.nc.
V INHERITANCE
Chapltl'l m.po53lo(o .."-' Proptrty D\lrin&Skknea. .•. ~ •.* •. *_.. 221
Chapttl' 1 WiUs. .......•. _....................._.. _... _....... _... _.._.•___ ............... 225
Chapln 1 Inh~ritanc(: Ruling............................. .... "...... .................. 239
C hapleT . Cau .... of !nh~ritan(~ Ind 1h. Lrgal [nht'ilol'S... .......... 245
Ch. pur 5 I nh~rilanc. O[Spoll"".................................................. ,... 251
Chapter 6 Inheritance of Fathers and ~lcrnal Gnnd f.th.rs........ 253
Chapter 7 Inh.ritance of Mother!...................................................... 257
Chapter 8 InhtTilan.c. of G"''''dmolh ..................................*_ • ••• _.. 259
Chapltr 9 Inh.rit."", of Daught......_. __ .__ .. __ .__ .... ___ .___ .. ___ 265
Chapter 10 Inhtritanct nf FuU S;s.(fI..... _... _.... _... _...... _....... __ .. __ . 269
Chapter 11 Inhmtaoc( of S;s.en with Daughten and Inhu itanu
of Matunal Siblings ...._.......... __ .•..... _..... _...... _........ _..... 275
Chaptt r 12 Agn.tion.......... ................................. .................................. 2~
Chaptu 18 I nhtrit.nc~ nf a Fetus. .... _•. _••• _.•. _•. _••.•.•. _•.•.•. __ .•.•.•.•.•.. )1)
C haplu 19 I nherit. " c~ of a Missing Ptrson ____ .____ •. __ ..... _.... __ 319
Chapter 20 In~ritanccnf l~ Drowned and Thos.e Killed Under
CoUaps.cd Buildings........................................................... 323
Chapler 21 Inherilanc e by Radd.......................................................... 327
C hapler 22 Inh.rilanCt ofKindml by 8100d..................................... 33 1
C hapler 23 Inh.ril.nc~ ofDivorcc:d Wom.n..................................... 335
Ch'plu 24 Inh~riliUlC. among People nfDiffc~nl R.lIgions. ........ 339
Chapter 25 Intlerilafl("e of tbe Murderer 01 the Inherited Pmtm_.. __ }43
CONTl':NTS
VI MARRIAGE
Chapter 1 M unag<' ... ...... ...................... ............................ H .......... _ ... ..
,.,
Chapte r 2 Engagrtntnl ...... _.•. _... _........ _... ___ ..................... _____ ..
Chapter ) Mar Tiali' Coni_ I: In.tgrals and COndi.ions. ........ _... _
'"
,.,
Chapte r. Equivalence in Marriag.................................................. .. '67
Chapter S Unmarriag.able Wom.n ........ ... ...................................... .
Chapter 6 Conditions Made Ikforr Marriage ......................... _......
Defe<:u in Spousn.............. __ ... ___ ....................._... _.....
'"
379
Chapter?
Chapter S MaI"riagr of DisbdieYm...__ .____ ..... ___ .... ____ ... _..... _
Chapter9 Dowry••...•• _ .•••.••.•.••.•..•..••••....• _ •.•.• _ •. •....
'"
389
'95
Chapter 10 Wedding ~~ It (Wall_h) .............................................. .. <0,
Chapte r 11 Hus band-Wife Relationship... .. ...................................... 407
Chapter 12 Matters Nullifying Wife', Right of Expenses and Shrn.
of NighlS•... _._ ..... _................... _._......................... ___ .___ .. 415
VII: DIVORCE
Chapter I Wir.'. Rd. .... aphut Paymenl (Khul') ..........................
Chapte r 2 Dive rt • ._............................................................................. '"
."
Chapter ) Sunn; and lnmwllt ive Divorc. .............................. ........ _._
Chapte r 4 Tak..ing Back One', o;,'Ora<! Wife (RJJj .J>h) ................... '"
W
Chaple r S
Chaple r6
fld' (R>rcswearing 0n01 wi&: Mort Than Four Monthsl_
Zili;Ir._... __ ... _._ ... __ .__ ... ___ .__ ... _....... _................. _... _.
."
Chaple r ? U' in (AIleg;Ition of Adultny Swtrn against: Onn: Wdtl_ '"
Chapler 8 Eslabll,hing Pal.rni.y........... _____ __.......................... .. ........ '"
46)
Chapte r9 Wai.ing PrriD<l.................. _..................................... 461
Cha pter 10 Verifying thcSla~ Girl. Non-Pregnancy.. _... ___ ... _.... 479
VIII BREAST FEEDING
Chaple r I
Chaplcr2
Chapler )
8 •• a.lf«<ling. ............................ _........................ _.......... __
Cu~lody..............................
Ca......,. Prcv.nlin~
..... _.................................. .. .. ..
Cullody.................................. ..
...,
483
Pun ishm~nt
for Slande r...............................
for Intoxicants ..........................
."'"
...
Chapter 5 Disc",tionary Pun ishm. nh .............................................. 'B
Prescribed Pun ishment for Stealing ...
Chapter 6
Chapter 7 Prescribed Punishment for Highway Robb.. y.............. .
'"
m
Fighting th. R.bels ........................................................... .
Chapter 8
Chapter 9 Apostasy.
'"
Xl FOOD
'"
Food . ..................................................................................
Chapter I
Slaughtering.... ...................... .
'"
Chapter 2
Hunting. ............... .............. .
'"
Chapter 3
XII OATHS AND VOWS
'"
Chapter 1 Oaths ..................
Chapter 2 Expiation fo r a Broun Oath ....... .... ..... ................... .. ...... .
Vows .................................................................................. .
Chapler 3
'"
";;1
XI II QADA' (JUDICIARY)
Chapln I Judici....y In Islam............. _......... _............... _... ___ ... _...... 695
Chapler 2 Judge Ettlits. .............. __ .......... _... _..... ___ ... _....... ___ .. _. 701
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 Al·Fawzin
S. A Brief Account "fthe Prophet Biography. Sheikh Muhammad
Ibn 'Abdul·Wahb~b
6. Allflh',1'l$ightju15igHJ' Tawfiq . Ulwan
7. The Way of the TroveluJ, An Explaoalory Bo()k 00 Islamic
Jurisprudence, Sheikh' Abdur·Rahman As·Sa - 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
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
i. done by some very carefully ch<>Scn translaton who are n.tive·spcaken
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.
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.
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.
D-INDlCES
To facilitate the proc::ess of going through the book and sa~ the reader's
time, we ha-.... ineluded two indkn. namd \" subj«1 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.
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 10 translate t he meanings as undeQlood by Muslim .s<:holars. We
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 m£SN'''V' aupl that We
rewtI/ed ta Ioim that there h lOO .mIYa«J>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:
"00 1101 drink ill gold or silvn- _t. .. 0, ClJt In 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:
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 $uMMah (Prophetic Tradition) and the Qurln.
I have previously delivefTd the wntent of this book in the form of sermons
broadcast on radio, and 1 have bun re~atedly asked by the audience to
redeliver them, and to publish them as a Ireal~. for the sake of w ntinuous
benefit. if Allah wills. Infact, ! never intended this book 10 bepublished when it
was underp"'paration, but in respon~ to the wish of many people, I reviewed
it. arranged its contents, and P,""StnlM. it to ~ published. And her~ it i. now,
gentle ",adcr, between your hands; whatever cor",ctness and ~ndit you find
therein ar e out of the Grace of Allah, Alone, and whatever mistakes you find
are mine, and l.uk the forgiveness of Allah for them.
, A Sun,,,,.,y of lrumic Jurisprud<r>e<
AI-Hif,", Jbn Ha;ar comments that the aforesaid Qur'anic ,·erse,"... And
say, 'My Lord, jnrreDJ' me in knowltdgt ,'" is a dear indi cation of the merit and
excdlenc. of knowledge, for Allah never commanded His Prophet (PBUH)
to invoke Him fo r mor<: of anything other than knowledge'. The Prophet
(PBUH) used to r<:fer to the assemblies wher<:in useful knowledge is taught as
"The GMdens of Paradiu," and he (PBUH) stated that "Men of knowledge are
the inlleritoll of prophtts."
,
The.., is no doubllhat before one staTU doing something one should know
hOWlo petro, on it in the b6t way.was to p(rfonn it wdl to h;orva;1 itsdesired
fruits. U~wise. it is by no means rnsonable that one Slam worshipping one's
Lord - the way through which o ne', ""Ivalion from Hellfireand adminanu 10
Pandise are gained - without hning d ue knowledge.
As su~h. pwple are divided into three cutegor ie~ regarding k nowledge
and duds;
Th e firl! category i~ repre~nted i n th ose who combine useful knowl«lge
along with righteous deeds. Thoseare thrones whom Allah hasguicled
10 the straight path; the path OfthOK upon whom Allah has bntoweG
favor ofthe prophru, the slndfasl affi rlTlel'$ 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 [ You,}
<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/>ove·mentioned
Quran;, invocation wing rrfug~ with Himfrom bdng one of the
A Summ.,y of id.mic J>.Iri'l"ude",,"
e~lra"erl 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
Trade Transactions
Allah, in Hi., Nobl~ Book, tb e Qur'an, and the Prophet (PBUH) through
hi' honorable Sunn~h (Prophetic Tradition), pointed out the ruling' Oil
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)
l,TRADE TRANSACTIONS
"
Thoe Prophet (PBUH) said:
"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
b«ause !"'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)
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 AI·Bukhari and Muslim)"
Chap,.r 1; Tttde T",n"",,;on ,
Endnotes
Allah. has ..... de trade pfrm;$.$ibk for His """'onts as long"" it d oe! no!
ca~ 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'""'-
It Is imptrmj~s ible for. Muslim UPO" whom the }"m" 'a"
(Friday) Pn)'C"
is obligatory tn buy Qr sell after its second pra~r call (adho:lll). for Allah,
Exa lted be He, says:
"0 yo .. who h.n~ I>tll.~.ul, 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)
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
H
,
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.
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 $dh <l1W<Ipon /0 JOmtont who
fights ill fM Cauu of Allah, i' is coruUkml (for the wkr) " sign of
obMitlKt alld ,u",,/;on 10 "lUll!. cm I~Ofhtr IuInd. it is impermissible
10 m/_pons 10 thou whofigh! Musiinu M those who use thtmfor
highway robWr),. as it is rtgarded as WOfHration in sill."'
Muslims an not ~rmined as well 10 cancrlthe sales of one anotoo. I'<:or
eumple, a MusJim KUer maYRY 10 a custom~ who has ~id Itn pounds for an
item from another seller. -] an sdI you a similar piece for only nine pounds,·
or"j can sell you a hfiler one for the same pr ice." This is prohibittd for the
Prophet WHUH) wd:
"You IIIIISI " 0' try 'Q (/lnullh, ""la ofOllt o"o/hno:
(Related by AI -Bukhlrl arwl MwJim)'
The Prophet (PBUH) also said:
"A Muslim muSI nollry 10 ,,,"celllie sa~ a/his (Muslim) brother."
(Kdattd by AJ -Bukh5r1 and Mu.Jim)'
"uave tJl{I people ulone, AI/"h wj/J gi~ them prol'iJionfro'" one
01110/ I .n .. '
Thus.• town dweller is prohibited t" sell Or buy on Nhalf " f a d<"$(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
I: TRADE TRANSACTIONS
"
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,.. 11from IlK same man (who lIu just bought it) for
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
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 religiorr:'
H~ (PBUH) also p id:
"There will (ome 11 Ilm~ when people cOll$ider riM Ill wful by
means of trade:
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 S«th. fuo:t(not. in !bn Qbjm', book .nl~1rd ·A,..R.>"'" AI-Mu"'; ·'1(1)74/.
1 Al·llukhirl (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
Endnotes
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.
Endnotes
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
r«e;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·
""'i'
ration, i\ states, •... he hIU ~;ghed it.">
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 n(Jt wU it until ,.,.. nllwc
compkrdy rraiV't'd it.··
MOf'roVeT. AbO Dlwild ~llled:
Endnotes
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 Res-
IlrrteNonl 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$Ilm"
may become richer and richer, Allah will wipr off the bJeGing ofhis money and
thert will be no good in it. Rather, this money will result in ~ consequmca
upon its 0W11«; he will be wary in this life. ptltlishrd in lhe He~er, and it
will be of roo avail for him.
In addition, Allah describes the usurer as I li nning disbeliever. Allah ,
Enlled be He, says:
~AII,," destroys inttral Ilnd glwI /m~11U for c1uJritiu. A.nd
.Mlnh dou nollike every .inning di,btllrwr."
(Qur"n: Al-Baqarah: 276)
rh 11$. 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 uc«dingly 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~, Allah, EnIted 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,
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'$tS that del ... dealing in
ribd and a«~ing ink ,""!, many OI her proh ibit~ badllhs a~ stated in the
Prophet.. Su",...1I (Tradilion). 'That is. the Prophel (PRUH) has ~~ded ribd
as o ne ofl he grnl dest~ sins '. He (PBUH) has also rurscd tht 00II0e who
acrepts ribd, the o ne who pays it, Ihe one who records it and the !WO witnesses
to il '. Mo reover, the Prophet (PBUH) said that if OM bmefiu from <Inly 0,",
dirham' of ribd, (when he knows that it is ill·gott"," money), it will be m~
than (the evil 00 commilling adultery thi rty three times'. Jn another narration,
the Prophet (PBUH) p id:
' Ribd is like committing adull~ry lhirty Jlx li"'eJ aJI~r th~ advent
oJ IJl~ m'"
He, (P BUH), also pid:
"Rib.! is sewlll! two tUgr«J (oJ 11'11), Ih£ u asl oJ whicll rtU",bk.
(in 1/$ sillJulntJ$) w",,,,iffillg adultery with olle; motlla."·
In this connwion, Shaykh ul-Idlm Ibtt Tlymlyah (may Allah ha~ men:y
o n him) said:
-ne prohibition aJ riM iJ ,trongn" (b«<lust ofits dtgr« of,illfulness)
t'UIn rhe prohibition of ga mb/I"g. 11IiJ I,
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:
•... 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
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. Yet, scholars
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:
~... If theu
classes differ, then seII a, y<lu wish if payment is made
hand to hand."
(Rdated by Muslim and Aba DAwUd)"
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
mca'Ufe.
.
with equal measure, and barley is to be paid for barley with equal
.,
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
In these noble ~rses, Allah. Exalrt<!. be He. th~telUl those taking and
dealing in ,ib/! with man y thrtal.i. ~ thlnts invol~
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 )'/'111froM 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$, IS t~ conclude
transactions through lending loans (or thUM nuding them. traders, factory
owners. elC. They lend th~ CIItegories chllrging them a fIXed in terest
calculated according to i speci fied percentage. Such percentage is inc~rMd
In ca.se of failure to ply the amount of the lo;r.n on its due time. Thus. such
typtofknding involvel both lypes of rib.l, namely rib.ll·fod.l (excess usury)
and rilnln-1U1Jir<lh (delay usury).
Similarly. depositing at banking institutiOll.l for a 5pecif.ed period and
.gainst a sptcified intertS! Is (onsid .....,d om: of the u$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 pT«llution lest rib.! should ~ mingled
WiTh 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
I
,
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 10 il; auxiliary, complementary or installat ions attached 10 or
detached from this sold item. Besides, the sold item may be of a conTinuous
growth (e.g.. selling a pi«c 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,
air·conditioners, 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, lire fmil.S will be fOT the
Sellt T unl~ss th e buyu stipulalts thM they will be for himst/f (ond
tht selltr ogTUl)."
(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 $;l me ruling pe rtnining tQ d~le palms appli,. tQ other
Qbjects by means of anal<;>ginl deduction.
Th~ I« realize how complete l OO I"'n<'Ct i$ 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 Gr«t. 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
M
and lhe Lmr o..y. Thar i. rloe #>fir l-y/ and bal in !'t.It/I.
(Qura n: An·Nl$l': 59)
Vml)·, no judgment Glh .... Ih an Ihat of Allah and His Mesungtr (PBUH)
can decis ively sttlle any dispute among pwple, and btondil them and convince
Ihe believers.
As. for the human J)'$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':
MBul if tlot Trlt 'lo {J.t. Allfllo/ load follawto"he;r iltd iltalimu,
11ot' Ioeann. IIltd ,lot' ear,h altd...rn..v.,r I, lit ,1If'm _uld Iofln
17ftlt ruilttd ..•" (Qurln: AI.Mu·minun: 71)
rnv.D£ l"RANSt\CIlONS
~tdore, 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 is" . .'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)
W~ invoke Allah 10 ~nder His Rel igion (15bm) victorious O\"Cr falsehood,
ekvat~ His word, and protect Muslims from wh.:ltever plots their enemies
contrive: Hi:' is the Hearing and th~ Rtspollsive.
Endnotes
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.
J TRADE TRANSACTIONS
" B~.ides, 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
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 b«ome. 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 b«ome ripe with their
trees. That is, fruits b«ome 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 Case wh en fruit. and plants are picked or cut imm ediately after
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
Endnotes
Blight ref~ r5 to any plant disease affecting fruits resulting in their de-
struction. 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 what-
ever 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 aOOve·mentioned 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>
Endnotes
TheSalam
(Sale of Payment in Advance)
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
As·salamtlnl (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 $p«ified 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, 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.
MOr«lver, 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). AI·llayhoql (111)8 1) [N.lO) and' Abur.R ..dq ( 14064) IlI/5)
2 11.1- BukMrt (2239) 141540I.nd Muslim (409-4) 16142). See .1", AI-Bukh~ rt (225) ( {/~5 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
"No Muslim lends <I 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:
"He wlw Mliodim from hardship Allah ...iII ,.,/itvt him from
~Jjro>eJ D
the h~rdships (IQ which he would be put) on Ihe Day ojResumction."
[ TRADE TRANSACTIONS
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 mannCrll and it i.'l not
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
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 AI·Bukhl rl (2305) [4/608] and Muslim (4086) [61.J.8].
6 AI· Bayhaql (10933) (51573].
7]lm M1j . h (2432) Ill . 54].
8 AI·Bukhirt (n05) [4/6081 .nd Muslim (4088) 16/39].
CHAPTER
Mortgage
Mortgaging refers 10 the security for a debt again$!. an artide mat can (!IW'
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. lCribr, th"n
a "curi,,, deposit/should bel tw"...~
(Qu rln: Al -Baqarah: 283)
Wh ..... the Prnphl't (PBUH ) died, his annor had b«n 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:
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 Ibnul·Musayyab 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.~
(Rebt~d 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.
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: Al·Baqarah: 283)
,M
Endnotes
I AI-Elukhirl (:!'lIS) [tSIllil , So..bo AI·Bukhirl (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
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 m
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 10)'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 b«omes 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.
I TRADETRAN5.ACTlONS
"Endnotes
I Ahmad (21195) (512671, AbO /)h'l1d (1565) [31527J. At·li,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 ..m-
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.
CHAPTER
Suretyship (Kafalah)
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) 131 ~331 . nd
lb" Mlj.h (2405) 131141 1.
CHAPTER
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 dirre~nce in wording Il5:
· WhO('\It'r 's transftrrted (from his debtor) to /I ricll debtor, should
.'
Ilgrttl.
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.
,. 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 Ibnul-
Qayyl.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
of srlling.1-k says:
~E""n 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, it is pennissible for IM original debtor
"
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.
Third: 'IlK con~nt of the original debtor is nccruary here, as he is
nOl obliged 10 P"Y baek his dmt through transference. However,
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 10BO 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 b«aust 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 10 pay back th.. debts. as it makes things easy for ~ple when
they make useofil ln I good manner without de«pcion Or procrastination.
Endnotes
Commissioning (Wakalah)
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",
~O UI1~YS! Go
has committed adultery), then stone her to demh'"
(Related by AI·BukhAri 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$.
The authorizer must fulfill rome legal commitments with regard to trans-
actions, 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.
Interdiction
Islam h'M b«n onbintd to prot«t !he properties and righu of pcuplr;
Ihertfo~, 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, _Ic·miruJitd 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'.
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:
"If the debtors entire property is required to co""r his debts. 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 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
"And whell the childrell among ,.,11 uach puberty, k t them ask
p"rmiuioll {at all time.j ...
H (Qur'An: An·Nur: 59)
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:
"The Mess~mser of A.llah (PBUH) CtJlled me to present myself infront
of him on the Day oJOhe Battk of) Uhlld whild w<I$Jourteerr years oJ
age at that time, and he did not allow me (to join the battle). Then he
called me infront of him on the Day oJOhe Battle) of the AI-Khandaq
(the Trtnch) when I was fifteen years old, and he allowed me (to join
the battle):
(Rdated by Al·Bukh~rl and Muslim)"
This hadlth proves that a child reaches puberty when he is fifteen
years old. In another narration, . AbdullAh Ibn 'Umar explained
the reason k hind !>ting forbidd~n from jOining lhe Baule ofUhud
saying:
". .. He (the Prophet) saw that I had no/ reached the age o/maturity (10
be able to fight).""
The fourth sign concern, the young gir!, for she is known to have nached
puberty when she has her fi rst menstrual period, for the Prophet
(PBUH) said:
"Allah does not accept the praye r oJ a woman who h<l$ reamed puberty
u l1le~ me wears Q veil."
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
(Qur'An: An·Nis;\': 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: An·Nisa: 6)
Endnotes
Conciliation
The Third Type: Conciliation ~tW«f\ the husband and his wife for ftar
of disKnsion
The Fourth Type: Concilia tion ~ t~n two parties regarding a mane.
other than financial affairs
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.
~ i«Ond 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"$O)rl a deht Of"
aeknowledges owing him a 5WJl of monqr, which is in one·s po~ion.
Both parties then agree to conciliate when the indebkd party pays
part of the debt and the creditor, on his side, relinquishes the rest
\her«lf. Also, thil kind of conciliation may happen when the creditor
cedes to the Ikbtor tn .mQllIlI of th( owed object and takes the rest
Ihereof. Thillype of conciliation is Yll id unless the acknowledgment
is stipulated. For example, the debtor may say that he acknowledges
owing money to the creditor provided that the laller gives him s.o and
so Or compen.ates him wilh 00 and JO, or the creditor moy releuc the
dd>tor from th~ deht stipulating that the debtor gives him a certain
thing. Arranging conciliation in this manner is invalid. for the credilor
hllll Ihe right 10 ask for all his rights (all thal which the debtor o~
him). For rendering this type of conciliation valid, the debt or is oot
10 refuse to give the creditor what he Owes him in case there is no
concUi~tion. for this wou ld be In act of consuming people's wealth
! TRADE TRANSACTIONS
'"
unjustly, which i. forbidden by Allah. Also, the debtor is to pay what
be OWeS unconditionally (whether IMre is conciliation Or not). In
addition. for validating this type. of conciliatio n, the crMilor must be
of tho~ whose donation i.s valid; if not, this conciliation would be then
invalid. An example for this is the donation giv.n by a guardian of an
orphan or an insane person, since the guardian would be donating
somdhing that d oes not belong to him.
In a few words, it is permissible to arrange conciliation betwttn two
disputing parties to '"turn the establisht<! object of conciliation by
part of the same type provided that the debtor doe. not ,..,[u"" to give
back his d . bt in case the,.., is no conciliation. Be$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'.
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 "'Ir«m~nl ofboth I'artia Sincr th~ obj«t 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$, Ihese
punishmenll are Ihe right of Allah, Exalted Jl.e He, Ind among Ih e rights of
the (ommunity. The~by, conciliating something related to these punishments
~nd~" them inval id. denies the community of their beMfits and open. the
way for those Intending corruption.
Endnotes
I AIIIud (877'O) IV166I, At·Tlfmidhi (llS6) U/6l<lj. Ibn MIjm IZJSl) (311121 and
Abol Dtw6d (l~I [4/ 161.
2 AI ·Bulchlrl (MI)[1Il1711OI1d Muslim (943)[213651 .
J Al· Bukhlrl (1127) [ ~Imj
4 AIImaJ (87701iV3MI, At·lirmidhl (1JS061IJ/6l<1j, Ibn MIJah (2351) (J11I21 and
At..l OIwOd (1594) [4/)6 1.
S Ad.DlraqUlnl (4425) [./132J and AI-B.yhIGl (20SJ71[IOI2521 ,
6 AIImad (26596) [6IHO] an d AbU DlwCld (1514) 14/1lJ.
7 Di)'<lJt in A"bic me .... . comp<: ....'ion paY"""' for . rnul'<kr or an injury: iI mainty
"'"... - blood I1>On.,.-, . nd iI an 000 rnn.n "indtmnily",
CHAPTER
FIU/.lts' have dealt with the issue of neighoorhood and roadways and I~
rulings rdattd rnertQfb.mlll$c o( th~ grat importance Ihis iS$ue has. Proble~
may arUe bet,,"Cnl Mighbors and ought 10 be im.mdiately solved lest thry
should cause dispute and hostility.
MlUlinu; oogh! tQ tQjvc l h~ probkm:; by amnging conciliation bfiWffll
n~lghoors who a~ in disagl'ffmen l in a w~r that achieves justice and ~ndlt.lf
someone makes conciliation, fornam ple. toallow waler to pass 10 him through the
land of the ntighooT Or ~t· hi s housetop (by mt.nsofa water pi~, fOruample).
jn nfu rn (or compen ...Uon, this conciliation i< v.l id since 11 ]s nec«Sary. If th il
compensaHOI\ is 10 be paid In relnt" for a ben.efil or for making use of lhe land or
the hoUJdop whik they still belong 10 lheir "'"""t, Ihis 1$ 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 ."cl Roadw')'J
'"
What is mentioned above a,.., some otthe rolings on neighborhood. As for
the rulings with respect to road ways. they are as follows:
.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.
Endnotes
Preemption
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
Endnotes
•
,l
,
,'rt; ~:;
.,
>
h
"
'(I
" ' '.
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 $Chola ... , a.. reconk d by Ibnu.l-Mondhir (may Allah
have mercy on him), Yet , scho lars disagree only c oncerning some of its
cond itioM.
Evuy partner has the right to dispose of the capital Qf rh e partnership due
to his share and his being commissiooed by the other parlnn. Th is i~ bc<:ause
the word · partnership· indicate~ each partner·$ dcallns on behalf of the other
without taking his permissiun.
H:!'ARTNERSHIP
Mudarabah (Speculative)
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
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.
Ilk SHARECROPPING AND RENTING
'"
Mu7.ira'ah
Endnotes
Th~ 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~, 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 agr«ment} 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(
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.
Endnotes
Competition (Sabq)
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-Akwa-
also 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 com~tition is of
two kinds;
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
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
cooperation in righteousness and piety.
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 AI·H1kim 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
Usurpation
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'
~And do 1I0tconsume one anolheJ":r wealth ulljwtly or Sf lld il
[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)
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
painful pUII,.hm£nt. H
(Qur'An: Alu ' immn: 77)
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.surr«tionr'
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
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
m 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'" m
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,:
~And (mention/ D/lvld /lnd Solomon, ",h.m 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•• ,H (Qu rh: AI·Anbiya': 78 -79)
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
h~dilh 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
Trusts
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$t is regarded as th e trustee', own property,
so he does not make up for it if it is damaged, provided he does not abuse il.
Ibn M1jah related I bad/rh ' - wh ich has a rather weak chain of transmitten
- st ating that the Prophet (PBUH ) said:
"If""" 11 trusud with St)mething, thm ht is "01 /iQble for c:ompt" -
SIltion (ifit isdQmugedr
Ad-D!raqUlnl rdatfil tile Hme With ' with the following wording:
"There ;s no ,0"'~nJQtion to be paid 1>, <In honest "",row...,. (if the
I1orrowed obj«t i. dQm~ged), Qnd the", is no compenSQtion tQ be
p~id by ~n hon u ltruslee (if the trusted object js damaged)."
In another nanltion:
- There il no rompensaliofl to be poid by the trustee (if the trusled
object is dDm<lged)."·
A t~"'" kreps I trust voluntarily. So. if ~p~ are liable for the troSI$
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"., .. 10 rt ,.d...,. I",sll '" whom they
",., 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 10 the tru5l""". obligation to t.ue ~ of Ihe enlrusted
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.
,. li lt SHARECRO PPING AND RENTING
Endnolcs
I Muslim (2699).
2 Ibn M dja~ (2401) [111381.
J Ad·[)fInoqutni (2939) [31361.
"A.d·Dil'aqUlnl (J9J8) [3136[.
5 A.1·1\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_
"Cl Zubayr! [rrigMe (your land) and Ihen wilhhold the waler until
il reaches th e walls between the pits round the trees.""
Endnotes
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 ...
Endnotes
Luqatah ufers 10 any 10S1 property. exclud ing animals, found by ..,m~on~.
[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 .. ,
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 AI·Haram 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
ha¥ingfound it publicly)."'
This is alS(l the opinion maintained by Shaykhul-lslSm Ibn Taymiyah
(may Allah have mer<:y on h im) who said,
"Th, lost article within AI·U<>ram COM MtvI:, ~ owned by the one who pich
itup. 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).
Ninth: if a person picks up a lost articl~
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~
Endnotes
Foundlings
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 lamUah wu the first one to
lak( this lost child. At b«ame 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) 15 legally considered his
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 10 choose eilher ~alial.ion or blood money mal
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
mUJI be "'fUmed to hin. or her, u long as Ihtre are no other cl aimants. Thu It.
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 RF£tAMAnON O F WASTf.lANDS AND...
Endnotes
, CoIIe<.1i~ duty; A rdipouI duly wflidJ if sulfJOmtly ful6ikd br......., MuNima.. Ilw
tnt will 00( br a«IJW1l.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· Abdur·Rndq (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 weak·mindw person, or a slave is not legaHy qualified to
grant an endowment.
Arab tribe refers to both the SOn5 and daughte rs of the tribe, though "Ban()"
munssons.
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.
III RECL\MATION OFW~TEl.ANDS ANO...
'" An rndowmnu 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 $old nOt"
giw" a. a prrurtt, lIor """"""thed.··
AI-Tinnidhi said, "Scholtlrt rei, on this hlldlrh (for tM nJing on mOO..,-
mm/)." In short. it is imptrmiSl5ible 10 canal an endowment, as;1 is kgally
considertd an eternal tOl1lTa't. MQJ'alRr, an endowment <;an ncithtr ~
!.Old nor lransfcrrro from ils pia< .. unl .... il5 bendllS eompktdy vani.h. For
example, when Ihe endowed houS<' collapu$ 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 endow-
menl 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 d«reIlleS ilS
""'=-
If the donor makes an rndowment for In. ~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,
Chapter S: Endowment (W"'If)
Endnotes
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 m«I
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
, ,
Th~ 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
being in sickness.
Allah, Exalted be He. say.,
~And Iptnd [ill 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 wh,,. Its
fi'lI t hw CO"'t. And AIUdt ;. Acq ....;nkd with "'lull you /k)."
(Qur'An: Al -MunMiqi.\n: 10 - I 1)
m 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'
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
one·third 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) one-
IlIird 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 one·third 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
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
(Qur'ln: An-Nid': I I)
V INHE.RITANCE
'"
MOIl'Ov~r, th~ Prophet (PBUH) said :
"Allah mad~ a charity upon you at death by (aUowing you to give) one-
third 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 peop!~. he
must dearly list and re.:ord them in his legacy.
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:
~And knowtlultanytlringyou obtain of war booty -Ihtn indttd.
/orAl/ah is onefiflh ofil..." (Qur'an: AI-Anf3.l: 41)
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
ont·third 10 11 /fUIlT'« (of the propeny),jor Iht Prophtt (PBUH ) said.
: .. OnNhird: )/'tt, em! one-third is /00 much: ..
• It i~ imptrmi.. ible for. to btquuth mo~ than ollt· t hird of
tnl~tor
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.
• It ill I~y invalid to Mqutath.n u tn portiOf1 to .1~llKir, for the
Prophet (PBUH ) said:
"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 Ash·SMfi 'i >lllltd
Ilral lhe ajorrnK"lllionn/ b.<ldith is a mutaWilllr (conlllluowl, rrcunmt)
Ilodith,' .",d Ite $<lId. ·Thtrt i. ""''''I''''' .... "gm'mAl omong Iht
schokm s~"lizn/ ill issllingltgol rulings oNl l ite scholars of mililory
txpldi/iom of Iht Prophet (PBUH) from Quraysh and orhm rhatthl
Proph<l (PBUH) said Ih ;1 Iladi/h iM Ihe )'tllr 01 th t Conqutst of MI!(:(Il,
MoftOvtf, Ikty I'l!!port Ilrll badith OM the allthority pfthost they met from
among tht ~opk ofkllowltdge:' Thus. ony btque/t madt in 1~\lDr of ~"y
Itgol heir ..tread, t " titkd 10" prtJeribnJ W"' is i"""lid Ilnitss ,,-pprrwtd
by othn Itgal hrir$, $i,,« il i. tluir right. Corm:'I"mtl,. " Imlllor mo,
bequeoth " n utm portion 10 oltgAl htir Of" dispose ofQ porlion ..-.:modi"g
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."
V I~ HERITANC E
'" A ~unt is """irnble from,. wtal!hy JI'"'On whost hrir is wd]·off, for
AIW!, Exalted be He, SIIYS:
~~for you,..""" dtGllJ a~ {....,.J ...... ofJO .. if
he ""'''" tWQ/lh {is dun M JIw ..ld mab] /I ~M... ~
(Qur'ln: AI·Baqar2h: 180)
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:
~... '" lo"g /lJ 'h~ is
"0 detrl",ml !"'uudJ...•
(Qur'ln: An·Nis;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 b«omu i",vi'lIblt 10 him.~1I
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 III IMn Q no ddrim.,,' {clluudj .. .'
(Qur'in: An-Nid': 12) m' llrIJ IlrOl 1l ItSlIlIOr"," mllbll ~qu'JI ifonly
il will not "'USt OilY kind of harm 10 his inhtTitQrs sudt lIS sto/ing owing
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,
,km, is MO 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.'
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 testalor·slifetime. 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
tion~d 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:
"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
/Ihrough Mql/estJ ...~ (Qur'An: Al-Ahzab: 6)
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
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.
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 consid-
el"<'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) 14/85).
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
tn. PropheI (PBUH) os lie ~ ordained but whOI ..... """,oIed to him by AlWL
a""rrlrr to
4 ' Abdur.Rattiq (16363) 1 ~166]. A >im il..r b.ndith Wo" 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 A1·Bukh.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].
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 AI·Bukh1rl (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) 1311951: 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). Al·llayt..q! reponrd it
in • m<Ujil' form of /wdilh (12586), . Abdur·Ramq (16456) 19/881: Ihn Ab<) Shaybab
(3(927) [612291 and Ad.D:lraqujn! (4249) 14/86(,
15 AI·Bukhlrl (l295) [3/2101 and Mus! im (f18S) 161791 .
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]: Ad·Dirim! (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 AI·Bukh1rl (2660) ISJ2861 and Muo.lim (2]21) (4/90J-
24 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 Ad·Dl.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
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$,' as will bot explaintd later.
Changing the laws of inherilance, which are decrud by Allah. is imper·
missible aod is cooside..w an lel of dilbelid'. fo r ADah , Eulttd be He. says:
- TIteu an tIu /imill fld by/ A /lA h, anJ w!toewroWyf AIWI fUIJ
Hi. MtslCngn will NIUl",lr'N b,. Him 'oprderll flrI P<l.rodi.e/
unde~ which riwrI flow, alndiltg elernp/I,. ,h,",lrI; PM Ill.. ,
Is the gretJt p!tp;nmlm'. IlIId ",haew:r d;so/Jeyl Allah and His
Mu.trlgn' arid trIJrI'gnuu His li",lts - He will pur him Imo Iht
Fin la ,,&i.u elt,,"dl,. ,htrtln, ....d he will ," .. w "lIumilUlling
p""id"n,n,.- (Qurln: An·Ni""': 13·14 )
With r~ to theso: vnws, Imlm Aoh-Sb.awUnl (may Allah ha..., mercy
o n him) stated in his ~b of l~ Qur'ln:
'71tt word 'firut', ;11 thi af"'tmtlltj"ntd ""rst. refors 10 Ihe laws of
inherilanct which are diKusstd in Iht IWO ""rstS prtuding 'htu lwo
vmes menlioned above. A/lnh, Exalttd bt He, refers 10 rht5e In..,.
AS 'I/miV btCaUS f il is im~rmiS$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$Senp in
applying ,ht laws of Ufalt division or any Illhtr Islami' .... Iings, w
implW by the genual mtaning of the ph~ ~ .. wilJ N ..dmillttl by
Him ,,, prdem fin P,mtdiu/ un,u,r whid! ri~", flow .. : -
After Ihal, Imim Aoh ·ShawUnl added;
-It is AI~o related by fbn Mdjah on the authority uf Anas thal the
Messenger of Allah (PBUH) said, 'If all)l<lM di~inhtrit~ his heir,
Allah will dtprj~ him from his mOl", in Pamdi$t on 'he DAy of
Ruurredjon: -"
Thus. whoever changes Iny of Ihe laws of in herillnce and perverts them
($ueh;os allowing an ilkg;d hn r to ;nh~rit. disin~riling • legal hcir o rdepriving
him of pm ofhis dare) will be nil into the Fill' foll'ver. Also, if anyone, for
txamplr, make. mal" and female,; rqual wh~n divkl.ing an " tate (as applied
in some non·Mu~lim kgal system$). 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,
~Far 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.
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: An·Nisa: 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
Causes of Inheritance
and the Legal Inheritors
• 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
Endnotes
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 ~'1u£St thq {may have] madeordebt... 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 0", btquts! ro" /ltUly"o.""J ...o.dt Or 4"b!.-
(Qur'~n: An ·N i51': \2)
CHAPTER
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
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,.,
Endnotes
"
Inheritance of Mothers
by his son, nOr does h~ have two or more siblings, wh.th~r mal~ or
females. This is becaus.. Almighty Allah says:
But if h .. had ,I<) childre.. arid the /H1re ..ts {a/cme} inherit
D•• •
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 Ibnul-
KhallAb 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.. Shaykhul·lsl~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
di¥ide 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
V INHERITANCE
""
• Th e one whose SOn 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.
Th. ~idence 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
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 Ibnul·Khattdb
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 At·Tirmidhlj
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 lbnus-
Sakan, Ibn Khuzaymah and Ibnul-JArftd)
Chaprer 8: t"h.ri,.""", of c.; r>ndmothm
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 one·sixth, 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 d«eued
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
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
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)
""r
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
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 An·Nasa'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 b«au~ 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.
Al; 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.
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. Two·thirds
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
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
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 lwo,ut",., {or more], ,My will
/law fw<I thirds of whtlt he I"ft. if ,It"u ",." both brvtiKn "",d
IiJlnJ, the m..u will I..",,, the Ihan oI'WC' frma/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
w.. .
duc£ndant. but I",. .. bmlht' l1r a sister, Ihe .. f//r each oneofthem
is .. mlh. Blit iflh£)l ..n man th .... tw!), they . hon .. third ..•~
(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 .....
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 AI·Bukh1r1 (6736) [12121 [.
CHAPTER
In cast lberc Is I daughter (ofthc dC'CCUCd) or mort, with one or mon: full
or pat«nal 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 Sue«ssol1 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 rightly-
guided. 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)
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
Agnation
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: '
Ho~r, if nothing remains after the legal hei" takr their prescribed
shares, tbe agnate ..,Iatives inherit nothing,
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 $On's male child.
In this case, the son ha. the priority over the grandson, as he is closer to
the dC(casoo in the level of kiru;hip.
o..pm12, Apion 283
The Courth o;ase: Thq nuy wn: Ih~ Amc agnation silk and kvd
of kin$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
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),
V INHERITANCE
'"
Prevention from inheritance is divided into two categories:
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.
Endnotes
t ·... wI: An incr""~ in the nu~r '" ,h.res . nd 0 dtcre.~ in their . mDunto according
to the destfVing partits.
CHAPTER
With rrgard to this c....,. Im~m Ahmad, ImAm Ash·SHfrt 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 .
(n this respect. if the l iblings with the pillernal gl1lndfa!her Ire eithcT full
~p<lternal 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 two-
fifth!.. which Ir"t mort than OM-third..
s- Thc paternal gnndfather and onc brother and one sister; in this
case, the grandfather gets two-fifth •• just like the fourth ""..,.
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 nne·half, 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 nne·fnunh nf the estate is mnre than d ther nne·third 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:, one·fOlunh
is for the paternal grandfather, and one·founh is fnr the brother. This
Can be illustrated in the following tabl~
Brother
6X2 12 sIuorn
""""""
Molher
PaIemaJ grandf'lher
3
I
I
6
2
2
Two brothers I 2(1 for each)
.......,
1
Patmlolll grandfather
B""-
F- When his prescribed. one-sixth oftllt estate iI equal to one·third 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~ OIK·sixth of the estate is "'IuaI
to o nc-third of thee rt'mainder in this case as thoe hu5band gets the onc-
half 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 one·third 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.
one·half 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 se" haIr 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:
V INHERITANCE
'"
,
Husband
''''I 3
~" I,.
9 ""1
Pate~1 grahdfa!.ber . .~ % , :d:t,j~ 1 +41,l\Sfi...ji.?"
2
Three brothers
" 6 (2 for each)
Note
All for the remainder of the estate after the prescribed shares all'distrib-
uted, 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 one-
s~th of the estate as a prescribed share, and so the case is sUbje<t to the
rules of 'awl, as in the former case,
In the last three cases, the siblings have no shan:~ except for the ~ister in
the case called the Mdariyyah' on which we will elaborate later ',
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 e·third 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 one·sixth 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", m....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
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. 134·138.
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, 0 matMr. a pat.rnal grondf.th« ond
on< ful! sist«,
6 Set the footnot.. in AI.&ljutr p. 1)8 ,
7 Set AI· 'Mho A/.FJ'id (1/110),
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
tak~ 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.
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'.
Pate"";~ather
, IOXl,
'Xl
4
10 .!lares
8
One full sister
TWo pc.temal halfsisll:rs '"" 1
10
2(lforemch)
"""'" """""'"
Paternal lullf siSkr
2
4
2
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 sp«ify 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 $~res (lI/1 g). The remaining shan:
cannot be divided among t"" paternal halr liblings. Then:fore, 5 (the
number of sibling; mam as they m: two male, and I fcrnalc) is to be
mu ltiplied by 18 (the co mmon denomin ator) that results in 90 (th e
new common denomInator):
)0 ThemothergelsIS,haU$(3X5 IS)
}o- The paternal gnndfat""r gets 2S shares (5XS 25)
}o- The fuU sister get ••s shaJ"e!l (\lXS .5)
)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:
Y lNH ERfrANCE
, "
Mother
paternal grandfatbH
Full sister
Two fIIIlemaI halfbrolhen
, , I
"
43
4 (2 for eacb)
One paternal hal fsister I
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 ,w.., Into <Or'IIIkIenIion th<drath oI tlll'l .... 110;, occor-din& to Cfttlin
k£ubtioolJ.
CHAPTER
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 d«ided. 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.
v INHERITANCE
'" Owing 10 the ul\(cttalnly in such casn, there ire spec ial chapters ded i-
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
4·The drownfd and tOOst kilkd undrr c.oU~pstd buildings
CHAPTER
Inheritance of a Hermaphrodite
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_g_, being a male only), such a person is
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
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: AI·Ahqlf. 15)
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.
$chola,.,. differ with regard to determining th e maximum period of preg-
nancy. There are three opinions:
I. The maximum period of pregnancy is two )",a". This is due to the
statement of the Mother of the Believe,.,.•. Ni'hah (may Allah \}.,
pleased with her), who said:
·Th~ f~tus does not stay in the womb ofth~ mother for more than iW<)
.>
yeal'$.
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.
V IKHERTTANCE
'" In this regard, Muslim ~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.
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 &p«ific 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 Ad·Dl""l'Jllll ()8l'.i) (3221) Ind Al-lIayhaql (l~SS2) 11I7U).
CHAPTER
The miMing ~l$On mrans the 0"'" wh<);sc $lI te is not dffined and il is not
known whether .IM or dead. This may be due 10 tJavel ing. participating in it
battk, bring thl~. orbrins captured by enemies, t IC.
Since the missing persons state is nof determined as 10 whether bring
aislent or nol. each case of the two has i!5 own rulin,_Sotm ofth~ rulings
pertain to:
• Hil wife
• HI$ 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
The issue of ma.5ll duths, in which many propIc die and some of them
.~ legal heirs of other$, is I problematic issue that eauiltS great con fusion.
ThiJ iJ ~use it is difficult to realize who has died n'st
to be consid.,,,,,d an
inhuitor and who has died I'lff to be considered an hcir. Nowadays. ma5$
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
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.ps«I ..
Endnotes
1 A;h·Sh1rn, 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
10 prescribed shares, in caw there i§ no agnate nlative() enlilled \0 gt't the
n:main&r. .... llah. Enlttd "" He, Stilled [he p!l'S(ribed shares as 1Wf, o ne-
fourth. 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) 10
those who are en fitled to rya;,'t: them. Tire" wllMt~er 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:
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
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, Inh«i"'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 foUowing 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
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$t tluy {m .., hA wl m ad, or debt. And jor thom ( i.f!.
tll, ....i_1 if ON' fourlh iflOll INW 11<) mild. Blit ifro"/IIIW 11 child,
,h... for fit,.... i. om riptJ! of ...n4l1 YO" leave, tifler ...., tv/fuw you
(_ y ".wl ~.uDrdn.c ...~ (Q u.'iln, An-NW': 12)
In consi deration IQ this, the two. spousn inherit from each other as long as
Ihe marri.ge co ntract has been valid unt ilth, death of lhe inheri ted spouse,
" nle» then: is • eause that preve nU o ne of them from in heriting from Ih.
OIher. However, no inheritance ;5 to laM place in case of the irrevocable
divorce. for Im rule of thumb staIn that ift ht rt i$ 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 ill·intentioned 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.
Mo~er, the twospouses inherit from each other by virtueof lhc marriage
contract if either of them dies before the consummation 0( th e marriage Or
m«ting in privacy du e to the generality of the ver5/::
·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 k«p us mictly adhering and embracing il forever.
Endnotes
CHAPTER
Endnoles
c....sn o{inhrrilance ""'Y uist, ~t an (1IlillM hei r may not be given hill
her prescribed~. There are many causes that ~nl one from receivi ng
one's share of estate. One of thl$e caU$6 is the case of an heir who murdeR the
inherited p"r'SOn. To mun.ale. the Prophet (PBUH) 51)'$:
"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 10 committing what is prohibited, as
kw! for wnhh may drive an hei r 10 murder whom he may inherit. The wrll-
known rule 511tes, ~oewT hasknl lo possess something befon' III due time
wlll be punished by not having 11.-
V INHERITANCE
Endnotes
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
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; An·Nisa'; 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
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 f«I 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:'
Th~ Prophet (PBUH) r~ commended that a man marry a virgin. H~ (PBUH)
said to I~bir (may Allah bt plea..,d with him):
' 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 condi-
tion of the person, his physical and financial ability, as wel l as his pre-
paredn~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
d«r«d 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
Engagement
(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
Marriage Contract:
Integrals and Conditions
'" Aft~r 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: An·Nis;l.': 1)
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-and·so."
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:
Endnotes
1 AM ·Diwi\d (21 18J (21408). At·TIrmidhl (1106) [3H13). An·Nw.; (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 Abii·Dtwlid (2OB5) ]2/392 ]. Al-lirrnidhi (1102) [3/407 ] .nd Ibn MI-j01 (1881) [2/428] _
5 Sft Ih~ footnol< in • Ar·Rowd M·Murbi "[6/276·217 [.
CHAPTER
Equivalence in Marriage
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.
2· 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.
VI MARRIAGE
'"
3- Profession
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 -r black frNd ~
1 M.aiim (3631) !SJl34].
3 An-Nul1 (l269) [31395].
4 5« !t.. '-noI' in "Ar-R.>WJI' AI·Mu." '. 1612821.
CHAPTER
Unmarriageable Women
haw KO'" i... Butifyou haw ..at go ..e i" unto them, then is ..0
si .. upo .. you ... ~ (Q ur'.iJl: An-Ni$;1': 23)
After mentioning the women prohibited for one to marry, it will be more
convenient to stale Ihe verse containing thm as a whole once again: Allah,
Exalted be He, says:
KProhibited to you !for marriageJ are y" ..r mlltheT$, 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)
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 ...N (Qurln: AI-Baqarah: 230)
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: m~ ( 1(1 ,our 1+'OfftDI} urrii1
lluy bditw ...• (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)
Endnotes
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:
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!.""
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:
_I f a wife find$ out th~t 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
Endnote-s
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$btliewrs if thq convert to ulam o r .tt!< the
judgment of the Islamic judicia ry cooccm ing marital cases while they are still
disbelievers.
The rulings on th e marrlage$ of the disbelievefl are th e $ame as thov
on the marriages of MllII lml with respect to validi ty, divorce, , ;h/Jf.' lld','
alimony, and the nights Ont I~nds with one', wives. n't 11 to Ay. th e worn,."
a,
• disbdin-i"ll man is prohibit~ 10 marry are the .. me ,hO$ot prohibitrd for
• Musl im man tomarry{such as the m<M oo, Ihesisler,etc). Th il is because Ihe
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
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 • .•
H
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 At·Timidhl (l LlO) 13/-1351rod Ibn Majah (l9S~) IlH64I.
CHAPTER
Dowry
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, sim-
plicity 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
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", consum-
mating 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)
Endnotes
The wNding feast il a large mnl for many people held on t he occasion
of marriage.
Endnotes
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
al them, "cord/"l'o ",/ull jJ ",,,",omlbl,.. ."
(Qur'An; AJ. Baqarah: 218)
VI MARRIAGE
'"'
Momwer, the Prophet (PBUH) &1icl:
"The best amongst you;s the OMe who treats his/amily b~t'"
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, """ a"""' 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,
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'"
"Men ou in c/ro,p 01"",men by {right ofl ..hg! {q,ullltitJ] ..tUg"
""S given one overthe olher...• (Qur'in: An· Nis;i', 34)
Allah, Exalted be He, also says:
"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. b«allSl: 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 iyyud·Din 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
Endnotes
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"
~And ifilwomiln 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. "".t... H
Endnotes
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 c1~nes.s,
union, and intimacy. Alla h. Exalted be He, say",
"... 11uy are dothing/or)'flll and )'<Ill fl.re clothingfor them .••H
(Qur'An: Al·Baqarah: 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
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:
":,.unk-.. thty commit a dear immorality {i.e. Qdu/tery]...~
(Qur'o1n: An·Nisa': 19)
Commenting on the aforementioned v~rse. lbn . Abb"-!; (may Allah be
pleased with him) s~id:
'This ytrse add,...:;e. the man ....ho hales his ....ife. and mam
diffi~ultie.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:
Vlk DIVORCE
'" Rel~a ..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
«, •• but if}'OlI
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)
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 ef«ts in
his character or his religion, but I, being a Muslim, dj,lib behaving
in an un·Islamic 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.
~r, 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$td hill opinion on the fullowing st1juenc~ of verH5: Allah. Exalted bf: He,
uy!. ~Di""1U is ' ...'(e..... (Qu rln: AI · Baqar.lh: 229), and then urs. ~... II~"
'''en is .... W.. me "pon <'i,"....
of ,''"'' rcmu,."j"g '''tIt
1>, ...10/(" site ,..."som,
~"'f ...- (Q urln: Al- Baqarah: 229) After lhat, Allah u.)"$, - ... 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.
E ndno l es
tAbO. NwiId (2226>(lf4631. AI · n rmidhl (1190) ()J4'Ul. ond Ibn MJjab (:lOSS) 12151 al .
2 5« MJljmu 'ul-Fat6Md 112/2821,
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$(d 10 him by k«ping hi. wife, and the non-fulfillment
ofth. l~al obj~ tjve of marriage by keeping her.
H"w~r, d iVQTct i. d etestable if there i. no need for it, a. when there i.
no problem betw~ n the married couple; some s.cholars deem it prohibited in
such a cu • . According to the prepo nderan t view, divorce i. p" rm is.sible with
detestability in this cue, for the Prophet (P BUH ) says:
"Th. mOST thtestab~ lawful act in th. Sight of Alklh is diWJrce,·'
(Related by Ab" Dlw(\d and lb n M1jah, and the Inen ofit5 chain of
transmitters ne tru stworthy)
VI[ DIl;QRCl!
In thi.! l!adith, the Propnct (PBUH) refm to divoru as lawful tbough it i.!
detMahle in th e Sight of Allah, indicating its detestabili ty-based permissibility
In this caSl:. The reaSOn for its dctesu,bility in th i' case is that it puts an end to
a marriage that fulfi1l5 Ihe lega lly desired interestS.
On Ihe other hand, divorce txcomes desirable if the wife suffers harm
during her marital life, such 1.$ when there is diw-ension bttwttn her and her
husband or when shoe dislikes him. In this Ca$oe, malntaining the marriage
~ mo.., harm I(lthe wire, while !he Prophet (PBUH) says:
"Ont sho"ld nor hllrM o/hus I"IOr should one S«k bultfit for ontstlf
by causing harm /0 others."
Divo= be<:omes obllgalory far the husband If the wife is neither righteous
nar upright on the religious level. For example, the wife may be SO negligenl
In prayer thal she abandons it or performs it belatedly, while the husband
Is unable 10 rectify her, Of she may tx morally dishonest. In such casa.. it
Is obI igalory for the hwNnd 10 divoru her according 10 the prq>andennl
view in this '"'8'o'rd. Ibn Taymiyah (may Allah haw mercy on him) llid, ~I/
tlot wift rommits od"lury, it i$ 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 nOI for the wife to Itly
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 $Iill ref"mes !O do so and
expiate IOr bis oal h, il iJ obligatory for him !O diVOf"(c t..,r, and he must be
forced 10 00 so. This is b«auu ADah, I'.nJted be He, sa)'$:
«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: 226·227)
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 MAjm and Ad'[)haqUlnt, and lhe"" ...., other
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:
~•• _thm (/If/tr ,hat), eI,htr ktql (her) In all accepttoblr mOlllnrr
01' "'/taH {hrr] ...ith good matrllm t ..•"
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 10 the one who Illias hold of Ihe I~ (j.e.
lhe husband):
Hownorr, • Muslim b«Ort\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 10 drink an intoxicant. or ta king anc"het ic for medical
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.'"
Endnotes
Sunni Divorce
Th~ di_ = according '0 Ihe Su", ...h (Prophetic 1'radillon) ilthe divorce
that takn pIa« according 10 the W;ly orWoined by Allah and His M.....,!lg~r
(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 th~
fr1r [tucom l'MJ'lUmell' ofl their waiting pnlod .••~
(Qur';!.n: A.I ·lal~<l.: I)
VI I: DIVORCE
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,.., diVO«t in turns of num)x,r)
• Divorcing one's wife wh ile she is in a stale ofmenstruation o r conii ne-
mmt: (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)
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 afore-
mention.ed innovated ways of divoKe, whether concerning the numbe:rofthe
pronouncements of divorce o r its tim ing. Allah, Exattod be He. says:
~.f)j"",," is Iwiu,. T1mt [..fin tluaI}. eit/w k«p [" er} ill,.., 1lCUp1-
IIbIe IIIIlIIntT o~ mNN {1ter/ ...iUr pod trul"",,,I . .. ~
(Qur'ln: Al -Baqarah: 229)
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 aoo 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.
J
." VII, DIVORCE
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;
AUab, E:nltM be He, addreuel the Prophct and aU Muslim nvn saying:
"0 Proplld, wIo". )'O .. (/toIuollnu) aiwJr« wom"", alVOml! 'Mm
J« {the ,,,mmmumnl' of) ,Mlr ....uti"g pmod... ~
(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)
". VII: DIVORCE
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 sp«tivdy, 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: AI·AhZ<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.· "
.., VII: DIVORCE
The Prophet (PBUH) also said cOn(erning. man', urw;:ntainty whether be:
had passed wind during pra)'tt or not:
"Ht should not kaw 1Ii> prafD' ,,"Ius lie Iwm wurtd Or' smdIs
romt:u,;ng.""
~re 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.
Endnotes
back one's revocable ex·wife 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: AJ·lahiq: 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 ex·wife back secretly."'
The revocably divorced woman is Irgally considell'd a wife of her hll.5band
as long as she i. still in her waiting ~riod . The refo"" her husband must
provide for her and afford her clothing and accommodation. On the other
hand, the revocable ex·wife 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.
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 [p£riodJ ...~ (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 ex·husband 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
Endnotes
,
,
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, nD'
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 d«itk on divoru - the,,/nd«d, ....."..,. 11
Hearilrgllnd IVtowilll.- (Qur1n: AI·Baqarwh: 226-227)
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 Pre·lslamic 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)
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
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 10 blood relations, brustfeeding. or ut.tjons by marriage, il1Slead
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
~AmI 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••. ~
(Qur'm: Al- Muj~ilah; 3-4)
1- Emancipation of a Slave
The expiation of z.jMr can be through 7ndllg of a .1.",t if the husband
H
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).
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 ..•
H
(Qur'm: An -NisA': 92)
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.
Endnote.s
1 AbO Dlwtld (2221) \11462] , At·TIrmidhi ( 1202) (3/5031, An· N• •l1 (.J.457) /31479].
""d Ilm Mljah (2065) [215Hj.
2 AM Dlwl'ld (21460).
CHAPTER
Endnotes
Establishing Paternity
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 I«Ond 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 b«ome stW1I (yelm old)
.. /Id but them fix ("ttl«tirtg) 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
b«ause 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 10 him. as he thus denies any duty relllled to his
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:
"The child belongs 10 lite oW1le' of the baI (i.t. thl! hUWand 0, Ihe
,"lISler of G sI~ girl).·
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
H owever, 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:\ fr«dom or slavery. except when th ere is a previous
condition or a ki nd of deception.
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 p«ople'$ ~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)
Mo~, the ~rificttion of the .iMage is nOllntended for bua$tfulnn.s
and chauvinism known during the Pre- isJamic Period of Ignorance (Ihe
loihili)'Yllh). Rl1ther, it ai ms I1 cooperafion, maintaining the blood ties.. and
being merciful towardoi one another. May Allah guide liS all to what He likts
and pleases.
Endnotes
Waiting Period
The waiting ""nod i$ a """,le of divoru", and il ~(ef$lo a ltplly sprc iCoed
p«iod 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 $a)'$;
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:
~Alld1/wR ..ha "re 11'"" 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)
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. 11 isacondition to make the wailing period valid thatsudi a huswnd
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 ali~, , he
has no waiting period. Allah. E.r.alled be He, AYS:
"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 verb·to cmlll'· in the vent men to C(lunt ing the peri0d5 O£ months
to determine Ihe time or the waiting period. and -""ve .oudtM '''tm
implies
H
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.
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 betw«n Ihe
consummated and unconsummated muTiages in Ihis resp«l.
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: Al·AhqH: 15)
A,d
''Molhen /tiny "urse fi.".) breastfeedJ their child...,,, two
complete years .••" (Qur'an: Al-Baqarah: 233)
If we subtract the period of breastfeeding, twenty·four 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 non·pregnant 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 sLave girl, she must observe half the waiting period of
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.h-
Shtlfi '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
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
Ihrl't pniodl, IInd /f /, "01 '11 ..."" for lhe", IDto"ctlll ...hal AUah
htl$~ttd /n thrir .. '0"'"..... (Qur'An: .... l·s..qarah: 228)
This noble verw indi(;ltnlhal the divon:ro woman n.ust observe a waiting
period of three meMtrual periods. and thm w can MTII.rry if she likes.. The
word "periods" mmlioned in the wrse ",fen 10 men$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 bJ«ding 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) $;lid:
"The .....iting ~riod of liu Ji,...., womlln iJ two monthly pmods.-
Th il is Ihe opinion of ' Umar. itis son (' Abdwllh Ib n ' Umar), and ' All
Ibn Aba Dlib. and 00 one ohhc Prophet's Comp;an ions opposed this opinion ,
Thu •• this rul ing makes an t~cq>t ion rI the gmeraJity indioled by the Qur'anic
veru, UDiw.rreJ _mt" rt/f/alll /n Mlllin, {I.r., do nal rtmarryJ for rh,"
period$ .••~ (Q ur1 n: Al · B~qarah: 228) According to the analogical dedu ctio n,
the waiting period o(l he slave girl is half that of th e (,"wo man" i. ... one and
half mrnstmal peri(t(I$. Yet. u the "",nstmal period aonnOl be divided, tllus
the waiting ~riod of the ,la..., girl is lWO menstrual ~riods.
As for the divorced woman who does not haw a monthly menmu.d pniod
dur to m~use or young age. her wailing period i. three months. This is
according 10 the noble verw, ~And 1110# ""'0 ,,0 'on1ft' up«1 menslnlllliOll
amo"g)l1ur _mo" -Ifyou doubt, dun thei, perlfHIl' thr« "'/lnth., and (""0
!/lr}lhMt who hI/ill 1101 ItItH/lrUllltd ..•" (Qur'~n: Al-Iahlq: 4 )
Ch.p"" 9, W.i[ing l'<rOod 47~
With regard to this, Imim Muwaffaqud -Dtn Ibn Qudlmah and other
scholars stated that:
"Muslim scholars UIf a If i mously agree I hat I he wa i ti ng periodprescribed
for th~ mtMopausal freewoman and far Ihe youMgfreewomoll, who
ha> Mot mmstruatcd yet, is Ihree momhs·"
As for the woman who ha. reached the age of puberty but has not
menstruated yet, her waiting period is to be the same as the menopausal
woman, as she is induded in the verse: ~___ alld (also for] 'hos~ who have
no' mellltruat~d___'" (65: 4) \\/hen the menopausal divorce<! slave woman
or that who has nnt menstruated is the mother of a child of her master,
her wa it ing period is two months, for' Umar (may Allah be pleased with
him) said:
"The waiting period prescribed fo r the divorced s/a¥e girl who has
btgoltm a child to her master is two menstrual periods. If she has
not mell$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. brnstf«ding. 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 5«Ond ~ 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 $he is 10 observe
the same waiting pcriod of a menopausal divorced woman. namdy
three months..
Oneofthe rulings pertaining to IM wailing period is Ihe marriage propoJal
10 a woman ob.serving her wail ing period. It is prohibiled 10 propose frankly
to the widow or the irf'tVOCtlbly divorced woman as long as any o f ~ is
obierving her waiting period. For aample. I ma n is prohibited 10 say to
such a wormn something like. - I W;lm 10 marry you." Ho--..er.he CIn allude
concern]ng' proposal 10 her, such as when he says, - I want to marrysomcone
,,"0
like )'0\1", for Allah, Exalted he He, sa)'$, - Thm blame "pmt ro"/fIr th4t
to whlth Y"" [I"dlnet',] "I/rule "",,«r"/"I" propo'", t" wom~" ... (2: 235)
M
Endnotes
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 non·pregnant 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$f Day to
water what another has SOwt1 (meall;ng havi"S sexual in/n"roW'~
with a pregfUV11 woma,,)."
This indicates that the ooje.:tive of verifying tll/, pregnancy is to avoid any
possible confusion concerning the lineage of the offspring.
Endnotes
Breastfeeding
Allah. Exalted ~ He, .ay. conccrn ing women one is forbidden to marry
(temporarily or perpdually):
", .. your {milk] moth."., ",ha ""rwd you, your , ;ster> through
n.."lng...~ (Qur'an: An -Nid': 23)
This is also demonstrated in the Prophetic /1adiths as it is related in the two
authentic books of Al-BukMrl and Muslim that the Prophet (PBUH) said:
"All things which b;:com~ " ..lawful WCOUS( of blood reiations
are unklwful becallSe of the wrrespol1dil1g fos ter breastfeed;ng
reiatiorn'-
He (PBUH) also said ill " iladilh rdated by the Group of Compilers of 8Jldith:
·Wh<lt is unl<lwful buause of blood ",/a HQtI$ is also unlawful
because of the rornspanding!oster brtnstjetding relatjom:'
VIII BREASTFEEDlNG
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; An·Nisa.'; 23)
Thus, it is allowed for the foster·son (0 look at his foster·mother 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 Qur·anic or
a Prophetic text, such as being prohibited to one'. foster·mother 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 b«n 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 foster-
mother _ 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
Endnotes
Custody
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:
"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.p«t 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 prece-
dence 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, aC-
cording 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
Aj·Bukhari 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. Ab£I DAwCad (2276) [2/490], and At'H~k im (2889) 12I247J.
2 See: . Mojm~ ·"I·Fotawa· [t 712l6-2 t 8]
3 Al·BukMri (2699) [S/373].
4 See: 'Mojmu ·wl·Forawa· (341t22).
CHAPTER
The right of custody may W taun away due to the following ru som :
SIIV«y: 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 Ibnw-
Qa)'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."
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
give birth ..•~ (Qur'~n: AI-IaUq: 6)
And He, Exalted be He. alS<) says:
-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 I""
maintenance), the
hU5band is to pay tht maintenance at the beginning of the !by. It is permissible
to I»Y 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,
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.
,.nt.
•... 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)
Ch.pt,,~: The Wife', Alimony
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
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:
•... And "pon tlt e lf~lhu'JJ heir is (a dUly} Jib Ihal (o/'he
f~thu] ... H (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 10 Ix maintained by the
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
deemed a ~hlb. (authentic) uaaltu by AI-HAkim, that the Messenger of Allah
(PBUH)uid:
•... Start giYingfirstto your dependelllS: your mother, your falher,
your sister. your brother, and then your dosest relatiyes according
10 dOSfIlW.-'
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 mainte-
nance to the inheritance as in the noble verse:
".,.And UpOIl the [fatlu:r',] heir;' ]Il duty] /iU thllt (of tM fatlu:,/.,."
(Qur';\n: AI·Baqarah: 233)
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:
"Ol1tshould not harm othe", nOT should one seek benefit for himS>!/f
by causing harm to olhe",:
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
$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 $Iated in the
Ever·Glorious Book of thc Qur'h. Allah, Exalted ~ He , SI)'I:
-And newT is it for" bdlnon to kill " btlle~r Q"f]t by mist4ke.
And wh_r kill. " w/levno by mlJlilh - Wn tlw jrw'ng of "
IxUntlng.H4-.e "rid" ","'J>DI$lItiOfl /HIymcnJ (diyGhl presmled
I" /l1J /lA. lhe d«HNd',/ Jam»y /iI requirall u.Utu till]' gm {up
,"rir right "'''1 dtllrlly... But .m..n...r ki'" " /Id! 41 __ ;>JIentWlolllly
- his rrcompnue b HtI/, ~,d" he.nu abidedemllllJl andAuw,
h... beromt ""J7Y wl,,, "Im II1Id "... CllrutJ hi", "lid "... ptqHJ-'
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 pl~a..,d with him) narrakd
that th~ M~nge r of Allah (PBUH) said,
"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
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 quasi·premN!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 inten-
tiona/ 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 inanon-
vital spot but it "suIts in the latter's death. Such cases are "garded as quasi-
premeditated 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.
,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)
Endnotes
I Diyah in Arabic meam a compen .. tioll I"-ymenl f,.,.. 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].
Js...- 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 S«o "Bili4)101 AI·M "jlah;.r 1214861.
"/ Aj·!lukl>ltl (6910) ]1213 t 4] and Mu.lim (4367) [6/ 177 1.
a.."... I: Munlcnlld luTrecs
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 b«lJmt righttous. H
Imlm A&h-ShawUnl (may Allah have mercy 011 him) commenled 011 the
aforemenliolled verse saying:
'Th~re is saving of/ife in this ruling ordained Iry Allah, as whm one
belli., inmi"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:
., 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
btCIIUlt of the qiIA~ btromf!S a mta"s leading to righltousness.·
L
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
' Who~~tI" .uffors tht
two optiam: either he may receive the puyment af di)'llh (blood
money) Or ht may choose qiI.<l~ (legal retribution)."'
(Related by the GroupofCompilm of J:iadlth)
",
Moreover. Allah, Exalted M He, says:
~ ..&twh«wrowrloob 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
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)
M~r, 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
• 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
attributed 10 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."
,," 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
are met:
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 WhOM 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
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:
KThen 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.r«ment 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 single·handedly
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 h«ause 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..• H
(Qurln:Al·An'dm: 164)
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) $0)'1':
"If a pregn4nt woman intt nti(mally murders someone, she is not to be
killed (In qi~IJ until she giVe! birth and ca",s for her baby. And if a
wom~n commit. adultery (and becomes pregnant), she is not /0 be killed
(a. "'gal purri.hment) until she gives birth and car.. for her baby:"
(Related by Ibn Majah)
Moreover. the Prophet (PBUH) said addressing the woman who
confessed committing adultery:
"Go home until you give birth."Later, when she gave birth to the baby
and came back to the Prophet (PBUH), he said to her, "Go home until
you well" him.""
Thus, the two hlldUhs, as wdl as the Qur'anic verse mentioned above,
indicatetheobligationof delaying the qj~for murder ifth e perpttralor
is pregnant, and thi s is unanimously agreed upon by Muslim scholars.
Such obligation is a proof of the perfection and justice of Shari'lIh,
as it maintain. the fduses in their moth ers' wombs, and prohibits
cawinll them allY harm, Mortover, Shari'nh observes the rights of
children as well as the weak, protecting th em against any harm and
providing them with what pre,erves their live •. So, all praise be to
Allah (or endowing us with ,uch a lenient, ~rf~t, comprehensive
Shart'lIh that encompa"e, all people', interests,
Ex~uting the q;~~ for murder has to lit in the preSl:nce and under the
,uprrvi,ion of the ruler (or hi' "'presentative or the one in authority), to avoid
injustice and ensu", the legality of execution. Moreover, the tool used for
ex«uting the q~ for murder must lit quile sharp, such as a sword or a knife.
for the Prophet (PBUH) says:
'When you kill (in qi1Jt!, do il in 0 good mamU<T (i, e, gently and
mm:i[ullyr"
Thus, it i$ 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: An·Nahl; 126)
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) .
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
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
(Qur'~n: Al -M1'idah: 45)
H
for wou"ds i. legal rdrlbution .•.
Moreover. it i. recorded in the Two Authentic Booki (of Al·Bukh~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 quasi-
intentional 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:
and for ""'"n<is i.legal ,..,tri""tion ...
W
OO: ••
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 ~ skull·fracturing 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 subj«ts. 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:
'Th~ 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$, tht nlUllogical d,duction, and I"t
Itxts ,an/oining tht opinions of Imdm A/unnd."'
Endnotes
men of t~ peopk ofSuaa in ~ribution fm- killing one man . . Umar said; "1/
aJJ Ihe people o/5.lna had acted together i" kill;.,g him, I would have kilhd
them aI/ i" qi£l4.· ' It is also .tated that olher Compa nions were of the same
o pinion, and they wou ld kill a gTOUp of peopl e in ret ribution (or killing one
person; the..., waS nOne wh o disagreed with them, 50 the..., was a consensus
on this juristic view.
In this rnpm. the gmt Muslim scholar Ibnul-QI)'Ylm (may Allah have
mtrcy on him) said: "TM OImp.miotu IUld IM IMjorilyoffo'Ii/u ..n.."imowsly
pro,v
/lgrtt OIIlhe ruling Ihal ll group of II/f to '" tiUtd (i" rtlributitmJ for tilling
OM person, tho ..gh it may op~r 10 conlrAdict the //>alk pri",jplt of qi~ namely
saving ofli",,$. They maintain so IU Mt to Itt the non·application oftheqiw to A
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/."'
'AI! Ibn AbO. lllib Il'jecled their testimony concerning the ~cond man and
ob~gated 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.
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:
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)
So, to th~ who replace the sacred Shart'ah with unjust. innovated.
WO(:
dd'ective. imperfect laws. Allah. Exalted be He, says about such people and
their innovated laws:
H ••• Wrdched It Is for the wrollgtk>en as "n exclwlnge."
(Qur'1n: AI-Kahf: 50)
Endnotes
Di)'/lh (blood money) is Ihe ffiOMY paid by the offender \0 'he victim or
hiJ 1~ represenlaliw .. legal com~nsal ion.
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
10 ,,11/1.,. the decMJw~}ftlmily. .. ~ (Qur'~n: An . Nis1': 92)
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: An·Nis1': 92)
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'!).
It may happ"fl that someone scar •• a p~nant woman that C8llS<'$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. cl"",is liable
for tb. diyah for killing the fetus, as the d"", i. the main callS<' for its duth, To
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 . Urn«r.
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 I«ns 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) [6/179J and
(4366) (61176].
7 . Abdur. Ruz1q ([&lllO) [9/4581_
CHAPTER
Amounts of Diyah
(Blood Money)
'"' 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. Ibnul·Mundhlr said
in this connection, ·Schoia71llnanimOllsly agru thal the diyah paidfor killing a
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 Ibnul·Mwayyab,
lhnul-Qayyim also ~ id:
Endnotes
•
CHAPTER
-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 AI·Bayhaqi)
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
importan~ 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:
«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, -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 •.
H
'
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~.~'
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 IUp«ts 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.
Endnotes
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.
IX Q/W {lEGAl. RITRiIlUllON)
''''
S-NOIl-periosltOIl5 wound: Injury that ,.uses the skin!O be so deeply
CUI that it il about to reach the ~riostt'Um (lhe dense fibrous membrane
covering the surface of bone$).
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-d«ring wound: Injury'n which the wound is sod«p 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.bnaking·Qnd.
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 Ibnul·Khat!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.d·Kh<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 bone·dearing 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
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 schol-
ars 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 "'Q'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
IX Q/W(LEGAL RETR!BlfI10N)
Qasamah (Compurgation)
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).~'
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......)
"... 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
Endnotes
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.:!.
Mor~r. z;nd is a major ' in as it r....mlls in abom inable consequenc-
Cl 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
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.
F~ihsddine 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
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 th~ p,",scri""d legal rulings and the consensus
of Muslim scholars.
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:
"The {"nmarried] woman ar {""marrieJJj man fo""d guilty of
.,,,1UIl
I"tereo"" .. - lllsh ellch "ne of them 11 h"ndred Illshes •. ."
(Quran: An-Nur: 2)
erred but {only for] whllt ""ur hlarh intended. And lW' is Allah
Forgiving andMerciful.H (Quian: AI-AhzAb: 5)
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 /ea¥e 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: An·Niir: 13)
Allah also says:
~"d 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:
". .. 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[ONAR¥PUN!SHMENTS
Ibn . Abb~s, Mujahid, and others, maintained that the lawful sexual inter-
cour~ 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, AI·8ukhOrl (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 p«vio",,) 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 [41581-
14 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
(Qur'ln: An-Nur: 4)
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
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 appro-
priate justice." (Qur'an: Al-Abz!b: 70)
Dlapt<r 3: Pr=ribe.i Pun, .. ",••" fur Slander
Endnotes
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. $.:ItQ" only wants 10 COIl/Sf: b...t...., .."
,..,,, ani",o.ity ,,,,d ""'red through j"t<>X1, ,,,,U and , ..",IoU ng
/lmJ to "VU, )'Oil fmm the ....",emb."nce of AI/rUt "rut from
f'"l~. So will)'O.. not duWr" (Qur'An; AI· M,'idah: 90-9 1)
Endnotes
Discretionary Punishments
He added:
"Working as a ruin- VI/ail. firmness, so " fuitr should nOl h>ck
firrnnw as long as ht is IKling in IlCcordana ...ith IM Shu,i"ah
(fw.mic Law). Achirving JUJlire in whattwr ""<Iy U rtgardtd 0. ont
of lilt kilO" prncribffl by Mlah. Tht poJicy 1/1111 a(hit~ jUSlict am
nt~r be said 10 contrrll/iCllht Shad ·ah. NOI oMly does il agl'« wilh
t"t Shad· a". but it is auo (omidffld OHt of i/$ inltgral ""rls. Wuall
x PKESCRlB£D AN D DlSCREnONARY PUNISHMENTS
Endnotes
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 Al-
Ma '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:
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'$e "... amput..te their h ..M ...."
(Qur'!n : AI·M';'idah: 38) as ".....mput.. tt t"dr ri,"1 handJ. ..• T~ position
of cuUing is from the wrist joint, as the hand is the organ one wn in stealing;
thus, the thief .. punWted by deSlroying such a means. After amputating the
hand, the proper tll'atmenl should be applied in order to Slop the bleeding
and eu", the wound Ihrough the aV1lilable means of medication, And, Allah,
E.ulled be He, knows best
Endnotes
Allah. Exalted be He. wan ts Muslim s to walk safdy through His land, for
interchanging be nefits. inc reasing th~ir p ropert ies, maintain ing good relations
with their relatives and help ing one another in virtue, righl('ougot'!(s and piet y.
especially when travding to the Ka'b;,h (at Mecca) to (,<,rfo rm the .it"" o f
Hajj (Pilgrimage) and 'Umrah (Lcs<t:r Pi lgrim age). Thus. whl>t'ver intends
to obstruct pwplc's course, o r terrorize them on their jou rneys, Allah has
legislated a d~errin g p<'n alty to el iminate such an obstacle and h arm from the
way of Musli ms. Anah, baited be He, ,;3}'1'
"f"deed, the f't" ..lty for tllou who wage war against AI/Ilh ond
His Mnunger "tuf ,tr;"" upon ...rlh {to 'DUse] corruption il
no1U but thilll1""y /M killed orcru dfitd or Ih •.t their hand. ,,,,d
Jut bf CIIt o1!from oppositt sidtJ or thllt they be u iledfrom tht
x PRESCRIBED AND DISCRETIONARY PUNISHMHITS
kmd. Th"t i$ 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: 33·34)
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 Ibnul·Mundhir.
• 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 resp«t. 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: Al·Mfidah: 33)
Accordi ng 10 the opinion adopted by the maJorltyofthe Salaf{nrly Muslim
Sl;hol~rs), 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
Ash·Shj{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 10 defend oneself in such e'5(l, whether the .!oSaHant
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, b«aUK 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 ~I~'t tha. ABll Hurayrah
(may Allah be pka#d with h im) ha.. narn.lI:d,
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 le~d
to lny sffiilion, as A1i3h, Eulted be He. sa)'ll:
•... A.nd do Ih",w ()",ane/Yu) wilh ;ytJur IDwn/ hDnds /nlO
1'101
dulTllcl;'m ...• (Qur'dn: A I. B~qarah: 195)
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$Wf is
rtst raining his oppreuion,
Chaptor 7: Pn:scrib«! l'uni.hmonr for High"ay R<>hbeIJ
Endnotes
"W/we you (MuJlil7lJ) art hold,'lIg to Ollt single mall lIS your hadtr
alld somtollt coma std;;lIg to sow discord amollg)'llu or disrupt
)'IIur UII;ty, tlu!II)'11U should km him,"'
(Related by Jmtm Mu$/im)
lmlm Muslim . lso matw that the Prophd (PBUH) has said:
"Iftuf)'tlfIf! tries 10 disrupl the affair'$ ofthu "a'/OII whik it is ulliltd.
)'01' ,J,ould $lriu him with 'ht sword w/lot\'eT h, is',.I
The Prophet'1 Companions also ~ unanilllOU$ly.gr«d 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 AI"''' and obey the M Dffngtr
and thOlf /n lIulhorl'll1mong you __ ," (Qur'An: An- NisJ,': 59)
In addition, the Prophet (PBUH) says:
"I tlljoin)'llu 10 fMr AIIl'h, and 10 hear and obq tWn if a s/aw is
lWignffl as )'tIur /ctuler,·J
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
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 AI·lfsah (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
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 ... ~ (Qur'ln: AI-Ma' idah; 21)
That i., do not backslide.
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
at
the ca",p'''''t.". the Fire; Ihey wi/l llbide Ihereln etn .wlly.»
(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:
~A "d if you ask Ihem, Ihey ' We were only
wjll '1I1'<'/Y SOl}'>
cOllvusil1g <'ind plllyl ..g: SO}\ 'Is it Allah ,,,,d His ver.es and
Hi, M"u£nge, that YOII we,... ",()Cking?' Make no .,xcuse; YOII
ha"" disbelieved (i.e. reject..dfailhJ ofte, you, bdief. .•"
(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)
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! AI·Alru!, 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 M~lik in his collection of l1.~dfth entitled
,
AI-MuwaUa)
'" Owing IQ I~ {:>Cl that IIp')Slasy is caused by doolM and is nol dispdlcd a'
onu, 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, ex«plfor (~iolllril1gJ lUll",;':"'.., (jor
which they will dtJtrvt /0 be juslly pr""imelf)."'
A. for an ap<l$tAI~ whou aposla,y i5 based on the denial of on~ of the
fundam.ntalson~.m, his repentance - along with uttering thc Two T~Slifi,atioru
ofFa;th '- is fulfi lled by hi s ICknowkdgmcnt ofwhat "" hu denied.
An apostate is p!"(~nted from d isposing o f his properly due: to tilt
dtpen<k~ of othn peopIe's rights on it, just like: ' he Pl"OpC'rty of a bankrupl.
ThU$. 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 10
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 . •.~
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)
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
Endnoles
I A1· 8ukhlrt ( 301 7) 16I ISOI. Ab.) N....od (41SI) l4Ill9] ..... ·Ti, mldhT (1462) 1"'S91.
AlI·Nu.11 (<4071)) 1(1130) and Ion Mljab (lSl S) IlI!14 1_
2 See Ihe fontnol. in II. "' R~"'II II.I·Murb/ " 1714001.
) See tile (OOInOle in i\.t· Ra"'llIoI-Murb;" 17/4021.
4 See [bn T~)'miTal". MojmQ "u/·"",""" (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 AI·Hukhlrl ( 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;' 11\01 !he opo5UIIo and his (MwJim) wift I ..
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. Aj·Bukhlrl (6764) 112/61 I .00 Muslim (4116) I6IS1j.
10 M.wlm (243) 111259).
11 s..q.tr. One oflhe ptes «la,.... of It.. HelI6...
•
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:
MO",,,,,'d,,d, eat from "'''"teW>" is on .".rl', {tlta' h/lawful
ilndpod .. ," (Qurln: A I·Baqal1lh: 168)
• Allah, tM Almight y, also 58.~
-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: AI-
M~'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:
~They n.k you, {O Mubammml], whllt hll' bun mlldt lawful for
th.".. Say, 'Lawful for )'<>u Ilre {1lI11 good jood, ...
H
(Qurln: AI-MA'idah: 4)
9.apkr I : Food 651
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.
~ople 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"
"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 Al·Bukhl rl n d MtUl im)
Tht,"" i5 only OIIt 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:
"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 OflhNt 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 "'111
he (PBUH) /tu prohibited taUng oIni......r. with fant:J,
i.t.. btMts ofprey (or birds with la/on.). Tht validily ofJllch tradition. is
XI FOOD
irrtfUr~b/e
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"
"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 re~tricted by certain characteristics and criteria, like the
fanged beasts of prey and the birds with talorn
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.~
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 """l')'
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:"
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 n«d of them. This is
b«aUK 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
thmue/vn JUch as IIUJ, pots. bl«ktJ and rhlllkl,·'"
It is permissiblt!'or p;LSKrby 10 eiII from the fru itJ of a g..rden thill has
iI
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,
In .hart, a pencn pusing by a garden is allowed to rat fonn j" froilS
provided that tilt following conditions are fulr.Jled:
first: I1 mU$! haw ~ithrr. frnce OOr a guard.
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
Th~ rdigion of Islam has also assignNl a right in the Zak~h, among the
eight categories that are entitled to r«eive 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.
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
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 d£d;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: AI·M!'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 Sltarl·ah. 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 ~nimals
(the fish) are lawful (to eal):'
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 by a headlong fall is the animal that has fallen
from a height
• 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
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:
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:
~•• .alld
[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
'" 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 /J·6\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 $laughtering _ and it is not ROOU ro lawful just by hunting.
The S«ond Sla le : The game may be caugh t killed Or caught while
unstably al~. In such cases. il is only consideud lawful if the fol lowing
conditions al"C' fulfi lled:
The First Condition: The hunter mu$! fulftll the conditions of Ihe
competent $Iaughter<:r. namely, th e Ont who is legally ac«pled to
slau ghtn. This is because th~ hunter aSSumes the role of the slaughterer
in this cue. Th e~fore, the hunter must be legally competent by lxing
une, Musli m or belongi ng to the People of the Scriptu~ (Christians or
Jews). To illmlRte, it is not la...ful to eat what is hunted by an insan.e or
a druo~n pcl$On. for thei.lad of disc:1dion. Similarly. iI is not lawful
10 eal what i$ hunted by al1lllgw., an idolatrl", or other d~rs. just
loo, Iheir slaughtered animals.
The Second CondItion: There must be a tool used in hunting. which is
One of the following two kinds,
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 UseS lhe blood to gu"" oul
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 Al,,,"
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
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:
"If you
let loose your trained dog (for hunting) and mention Allah"s
Name (while Tt/easing it), then you may eat (the game)."
(Rdated by AI·BukhAri 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~:
HAnd do 1101,..,1 afllull "pall which Ihe Name of Allah haJ ll al
bu n mentiontd.. ." (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
The First Waming: There are certain cases in which hunling is
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)
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
H •••
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)
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'sp«t 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
Oaths
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 non·Muslim ill cast ht
is !tllillg a lit). Ihtn ht is AS ht SIIY' (i.t. lit h«omes 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·
(i.1.
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.· ..
We invoke Allah 10 prolecl us agai nst evil sp«ch,.,. and 10 mend our
worcb, deeds, and intention•. Verily, Alla h is Near and Responsive.
XII OATHS AND VOWS
""
Endnotes
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
.fo«mentioned 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 10 fMt or to fulfil! any of lhe Ihlft afo~tioned options to
npiat-e for thei r broken oaths. Hnw:~, thty fast while they can afford the f«ding
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 10 make the expiation before or after breaking The
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:
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 :
Endnotes
"
"
Vows
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 tff«ted. They ba$e IhU opinion on the hadill! in wh ich the Prophet
(PBUH) '"'YS:
wThtrrart 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 d«ds.
TM vow made by a di~litV« is dttmed ",did if I! is made to perform an
Kt 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 Ibnul·Kh,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.'<
Endnotes
I AI·BuOhlorl (6608) 111/601\), Mw.1im (~1Il) W99), AbtI Dlw6d (3287) [313841. An·NHli
(3810) 101/2 11 and rbn Mlijalt (2121) [21551). 5«'00 At· Tirmidhl (15-12) (41112).
2 AI·BuOhltl (6696) [111706).
3 See • I"Idm A!-Ma""qqi 'IM" (21122),
4 AM Dl,,"tld (+103 ) ond An -Nun (3462).
s AI·aul: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 I·Bukhlrl (6704) (1 117141.
10 See ':4./·/kh.!iydr.lr AI-Fiqhiyyah" [4761.
1TSee "["Mm A!·Ma....,qqi'lM· (2 / 122).
CHAPTER
Judiciary in Islam
"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)
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 judge needs 1(1 know Ihr« m~lters. if any of >viii,,, is !Ibm!!,
the judgmtHl ~cornu invalid: 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
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 Ibnuz·Zubayr
(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 $100[, or~" the
..-..alher is irrilalingly hot or cold, has Ihesame ruling appJird to anger. This is
~d on the facl that suell mallei dlslurb and eonfuK Ihe mind in a way Ihal
may p",~nt Ihe judge from reaching a sound decision.
Further, it is prohibited for lM judge 10 ra::..iVl' bribes. This is dUI: 10 the badillt
narrated by [bn ·Umar (may Allah be pleased with him) in whidt. ne said:
~rm Mt:S5t"gu (PBU H) " • .vd,M ont who bribes and Ihe olfe
who lakrs bribe."
Commenti"8 on this /lad/fir, At· Tintl idhl said, "TIru u .. /lDsDn !"bill badith."
In thll resard, briba. arc of two ki nds:
I· A brib<: laken from o nc of the two 1itiganu In order 10 decide in
his favoT.
2- A bribe given 10 Ihe judge who abslains from judging in f..vo. of
the rightful person until he bribes him . This is one of Ihe g~vest
acts of injus t ic...
In addition, it is prohibittd for tht judge to accrpt girts from those who did
not use to ~ him gH4 b<:fore he b«ameajudge. ln Ih is mprc:l, IM Proph~
(PBUH) said:
"Gifts given 10 goVl!fnQI"$ ure (considered) iIl-gollen properly."
(Related by Ahmad)'
~ is ~ acupting gifu from IOIIleOIle who did not use to p thc judge
gifts befon: he b«arnt: a judge is m ~ to <kc:idc in th;.t per$Of1·s 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,
" Then ;' it th~ judgm~nt
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 . H
(Q urln: Al-M;1'idah: SO)
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« -ZJdul·Ma '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
"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 10 the original principk of bang in"octrll; thus,
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 10 be a reply 10 what the plainl iIT claims. Moreover, the oath is
10 be taUn by the defendanTafter the plainliff's ~Utsl, at il is • right of the
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 10 ask the plaintiff ro Jwear, ~p«;ally ifhis claim is subslan tia/td,"
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,
~ ..Mo~owr, this opinloH hIU been applied by tM Prophlt~ Compan·
ilmS, ond lIi~ sound by 1,.,<lm AlImad Ilnd other scholars."
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):
Shayldiul·lslirn 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:
~Jf Ihe Irulh of the claim is ~pendfnl solely on Ih~
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
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
The claim ill nOl Y1lIid unless it is presented in detail. So. if the claim is oboul
a debt ~ from a dead p«SOIl. 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."'
H~y; the IJpdItJt refers to the obtigalion of dartfying th.., claim so .. \0
clarify 10 the judge tile reasons and facu needed for the decision.
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)
(Qurln: A.l-Ial1q: 2)
Allah also says:
•...frrnn Ih.,. ..h"m"., .. aeapt a. orit _ u .••-
(Qur'in: AI-Baqarah: 282)
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 other-
wise 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 con-
nection, 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)
Endnotes
The proofs of di viding shares amo ng partners are deri~d from the Noble
Ql,lr'~n.
thes«nnah ( 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 $I)'$'
"AM ../w" {other! ffla' ;,.a aM "'1'''''016 a nd 'he nNdy .. ~
p~"t 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)
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$,
the division becomes bi nding, by mnns ofl heirconsenl and by IM endinlOf
the session of division wilhoul any objection.
Morro~r. if OM parlner claims tbal lhere is a mistake in IM d~ion Ihey
have implemenled among Ihe mllCJves, though Ihere a~ wilnesses on tlldr
mutual consent. then such a claim is not considered. Th is is due 10 the fact
thal he has already consenled 10 the division accordI ng 10 Ihe way il ha.! been
implemented. 10 he is to accept the inc",ase of the sha", of the other partner.
In add ilion, wh~ cI.. ims Ihal tM~ is • mlstaU in the divi, ion
imple mented by the person assigned by the jud~ or the penon lhey ha~
usigned. such a claim is considered o nly with . proof; o therwise. the OIMr
p,Jrtner i. 10 !:tU a n OiIth dfnying that daim. The o riginal ruling states that
Ihf claim i. nOt trut \lntil provt n olnerwi!.e. ThUs, if . uc h a ptl'$(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 k«ping the def~1ive sha~ and
taking com~nsation. That i.! based on the fac1 that th e dcf«t 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 k«p
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),s... . 1\<1 Al·Bukhlrl (1257) [415501 100 Muolim (411).1) [61-46).
2 Muo1im (4595) [613l 7).
CHAPTER
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."
How~r, 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,
"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
Endnotes
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.ykhul·bllm Ibn Taymlyab said:
a pm-tquUiIC of ttstimonJ /0 Slly '[ ttstify.. .' This is tM samI'
"/1 is IlOt
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 $Cdng or hearing for example),
in co nside!';ltion to what All ah. Exalted J", He, says:
7J2 XI II QAaA'(JUDtClARY)
That is, if either ofth. two female witnesses forgets (any of Ihe details of
what sh e has witnessed). th e other woman may remind her. This is because
WOITI4'n, by natur~, tend to (OllItt. which rrnden the tCSlimony of two women
equal to that of one man, Yet. if the testimony of . woman we~ to ~ wholly
unacc~ptable, this would lfad to w..ting many right s and ~ndering them
ineffective. That i~ why a womans te~timOlly ;. added to that of another wom an
to ~mi nd each other in case any of them forgets.
Saidcs. if testimony COII(CrIlS financial affairs. it is sufIk;"nt for th~
plaintiff to ha,~. male wilness together wilh taking an oalh. This is buM on
the badllll in which loo • Abbb (may Allah ~ pleaKd wilh him) said:
-71re MtsstngtrofAllah (PBUH)decmd thal lalimony(ronmning
Clues involving fin(lncioloff(lin) is ""'et>tablc of 11 IIIlIle wilnm-
logt lh u with tht 04lh of the plaintiff'
(Related by lm ~ nl Ahmad and other compilers of l:J.dllh)"
In this collCerll. lm' m Ahmad (may Allah have mercy on him) said, ·11 is
stated in Ihe Sun""" Ihal a jlldgmml etm bf 00scd 011 Ihe leslimcmy of 11 mlllt
",,'Iness IIlong willl Iht oolh 01 Iht pl(linliJr
In this conneclion. Ibnul·Qayyim said:
... . This rllling (MU pli"g Iht tnli",on! of" m"te will1w lI/on8 wilh
Iht oolh of Iht pl" in lif! in fin"nd,,1 ''If,,jnJ d<1t$ 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 "U" 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,.. ."
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 rCh.
b~astfctding, 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"':
"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.
XIII QADA'QUDlCIARy)
""
Endnotes
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-mA·UUDlCIARYj
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.
Sheikh Taqiyyud·otn 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 5«ondary 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 a«ept leslifying 10
• testimony the same as the originalle!ltimony is ' ecepled.
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 r·Ra",1I A{·Murbi ' • \715>601·
3 :;.., the footnole in ",\r.RaW!l AI·Murbi' • !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 "."re<!
citi .. of Mecca and Medina.
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 d"".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
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 ac«plable 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.:f·UUDlCIARY)
.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
or
oath by other than Allah is an ICI polytheiNn.
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 b«n
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 Hc-
o A solemn oath is only taken concerning matten or great importance,
, uch as a crime that d,," nol n«essitale legal n:tribulion or eman-
cI 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 Benefit-
Giver 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
~ ,.. 1.1
Confession
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"
~O )'<)11who MW !.elievtd, be p£rsistently standing firm in
jus/ict, witnt&Sts for Allah. even if il M againsf )'{Jurstlvts... H
And He says:
-.. .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
A
AI.Amdnah, in A .. hie. <oHi .. the m • • ning> of hon ..ty. tru.t,
and <>bed;"""" It can .150, in ,hi.
<omat, mer 10 the obI igOlory
act. of worship ordained by Allah, ouch • • Prayer, F•• tin g, H~jj
(Pilgrimage) •• " .
'Awl An i"",....
in the nurn "', of mar .. ol inhe ritance ond. d .cr....
in their amount. oaocding to the descrving I'lrh ••.
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 ~ ro.- ...
n obligation. and ~ b-«omeo
an oct of the Sunnoh for thorn.
Dhjmml A I'IOll -Mu.iim liviD,l! Pnand undo, llIe proIe<li<>n of. Muslim ".1•.
Dinar An <>Id A... b coin ltlat ~u als 4.25 gram. of gold.
GIoowy 760
F
,,,- A och04r 0( hJlmk Iyri.prudtnu.
G
~(U.r-IIiIr) A 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. ,.
....... 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
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
I spa:iftCd COlltpt.lloIIion.
A Summary of Islamic juri>prudrn«
The polenl husband', <);llh no! to h."" .. xual intac<>u~ with hi.
114'
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 conS«ptional p",y<r.
J
A term ,ef"";ng to animals that e. t impurili ...
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 An hlamic radical O<ct who bmke awa y fmm tbr reign of 'All
(Al.KIm<lriI' i.e. Ibn Abii DUb, the Muslim Caliph then, and murdered him. Th~ir
Ihe Seccde.r.
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.
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.
M
Manljpoh The w<>rd "'"ffihah in Arabic indicat. , .....,.. hing gilt ... 10 be
mid. uS<' of111'0 retu'ntd to it< OWn".
Muh../1iI (In con- A non -con,,,,,anl who >h.= in ca.. of pn:>fl' ."d does no! .na..:
,,,.1<) in case oflo ...
Mu /i4l111 (tn mo, - Th. on .. who "",cri ... 0 woman who ha. bun irn!Vt><.bly
'Ioge) divOTC.. d thn-e time. to make hor lawful for h<'r ex·hu.band
to remarry.
Muh rim The o~;n. state of ritual ron""ralion for Hajj (Pilgrimage) or
'Vmran (Lts.tr Pilgrim.ge)
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 twns in,o
ronsi<kn.ion I'" &.th of that lopl hrir.
N4M>(lntbcft) A. far •• , hc(t iI con«mtd. ,he mlOlb rricn 10 Ih. min j m~m
.
,, 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.
lb. RtfIJlah A S},iit. gl'lllip who ",fUK<i the .aliphat .. of Aim Ihh AI.-Siddlq
and 'UmaI Ibnul·Khou.~b ""d wagM U <w.alioN again.t tbtm
and against many of the Proph"". Companiom as welL
Rib4 A term lhOl induoo u.ury and usuri""" glin and inlt ....1.
RlbQt.fotP. (UCUI The .. Iling of an item fo r l noIher of the ume 1),]><, on the o:poI,
U5IIry) but in H(~.
... s
A standa rd m.... ure that <quob 2172 gr. "",
s.olam The ",la .. i. payomnl in Ildvan.:. with delaying lhe =ipl ohM:
sold il.m,
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....
T
The Two Authtntit Books of AI·BukMrl and Muslim.
n . Two T..tifi_ Soying."] ~lify ..... ~ is no drily but Allah and Ihat Muham-
collona 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"". ).
w
In blamk '""'tool..)'.-u/ah (rommWionin&! m.n to tht
act in which IloepIlyaccountabk person appoints another I<pIIy
accountlbk penon 10 act on hi, bdWf In I artain JJUtIrr in
which MId! IUlhoriulion is penlI*lbk.
""
N.m< Index
-K- -N-
!(a' b Ibn MlIik. .......... .......... 92 Negus .........................................742
K. ·bIbnSiwk...................... ..411
!(a'buh .............. 582, 625, 639, 676 -p-
KhlIid IbnuI-Wulid ................. 611 J>tOple of Hejaz. ........................ 744
KharIjim .................. S94, 634, 635 people of Sana.....................•....546
Kbawlah BlntMIDkIbn Tba 'labah
-Q-
....., ......................................... 454 Qabillh Ibn Dhu'ayb .............. 260
m A Sumn>''Y o>fblamk JurispruJc.n<:<
Apo»lasy m
Kinds of ""lid competition ".
LtgaUtyof competition 155·156
Acu of aposta.y 6JIH;41
Conciliation
Killing OIl apostate: Ruling< 641·6-(2
LegaJityof
'"
IOS· I06
_of
Punishment of the apostate in this
world aod in the h.,.,.ft<, 637·638 Rnlingson lQ9·!l1
Rtpento",. of apmtates 642·6-(5
106·109
Breastfecd.ing Confession
How h<...lf<eding is confLrmtd 487
ConditioN of .alid confnsion 751·7n
'"
Ltgolity of ."
Whon breutf«ding rolin&, Or<' appl;
cabl.
Claim and Evidence
484-<186
FornIlof
Cu",,',
wtto i. ~nti tled to
...
490·493
ConditiOlU of roid daim Wiodorn. behind 489-490
Proof lits on the plaintiff and oath i, UIUleI ~ti"l! Cuotody 495
,WOrn by t he defendant 726-727
Commls.ioning (WakAlah) 83 Causes p"' .... nting cwtody 495-497
Condi6o(l.l of khul"
m
414 ·425
Do,,",
Foundlingi' rcllSiOn
) 57 Ltgoliryo(
'"
211·21 .
....
f .... ...
19] · 195
"... """'"
EotjngpW>1:5
6SHISl
655,,(;51
No-........ .. pm<rb:dl""'·" ",
..
Righ.ll0 dof.nd ol>f501f 6211 ·629
Inh •• itUlC<! Imons People of Dlf-
(onn' Rdlslonl ll9
"'-riI>ed. P1IJlidt....... l ro. lntoDr.lnto m,bell.wr', lnMrllin8 f mm a M.,.Iim
and viol: ~ Jl9-J.40
Logal ....mIw'ofWha 610·612 Inhnicanu """"" ditbdieYort
-~,
Prohibition of InlGlllcants 609-610
Inheritance by RflM m
W&ming >pins! drln~ in!GXlcanu
)27·)29
612-613
Preo<ribcd Pltnlsb .....1 for Slandtr 603 M.. nlngof
CQnditiMs of ox«ul l", I~. ",,",(rib«! Inherilanu oh Fetus III
puoiohmmlofobrKltr 6OH,()5
[)ofUlitioll and pn>/I lbition of!land<:<
~ 10 si" 0 t.t.. 1U1hare 31 6·3 18
60).604 lnhoriclOn« of • lotus: conditioN
I'Wn and aDusiYr wonIa of ... ndro- l l}·J IS
",." MuinlW'II period 01 ~
P.·.....II.N """'!oh......t (01' SIooli ... 315·316
~.
,.,
Son and the &OIl of th • ...,n ... m:. Letters among Judges. Teslifying
to Testimony. aod Taking Back
Trr of inMrilDnl . «ording 10 Testimony 741
sha," of inh,ritano: 249-250 Condition. 10 .c"'"pt testifying
Ward' ,% to testimony 744-745
Wife (widow) HO Kind. of k Ue" amongjudgeo 742·7«
,.
Women .. mporarily unmarriag.. blr
InVllbd rondrtioru i"">Iid.ting .".rrOagt
Marriage okptndent "" future condi- M..... I.ge Conlract: Inl.-gm .nd
tiolll l82-.J.83 Conditions .l61
M~lIil m. "i0g< Conditions of .. lid marriage 363· )65
Condition. of
"
68 -69
Rulings on 119·120
.".
When in.. is c&nul1cd 151
T",d.. Trlmlo;tlo...
•
Cor>d~""'rdoIC'dlO <~ 11· 13
Banki"ll intnnls~(O~mI rib.!
~~ , Conditiont mated 10 dor odlrr and
R;N/.n.ar (bua u....,.) )9· 4 4 lheburer 11
6S9·660
Option In ..... of differenc<
What i. indud..! in _
VO~
""
375,425,434.
2:280.
"
39,90,91
2:217 ........
2:220 .. ......
'"
'"0
2:282 .... ..... 5,59,61,68,70
,n030,731
2:221 .... .... no .................. ,734,738,755
2:222 ...... .. 410,60 1
2:226 .. ,,,,,, .... 2:283 .. .......
2:286 .........
67,68,70,731
'"
Qur>n k V.... lnde.
'"
Sura 3, Al u 'Imrbt 4:21... ........ m
4:22 363,373
3:77...........
'" 4:23. .......... 261.371,372,
3:102.........
3:103........ .
'"on 373,374,483,
96,97,100,
4:36 ...........
4:48 ...........
4:58 ...........
408,657
638.516
163,178. 180
101.102
4:59 ........... 49,632
4:7............. 242.332
4:92 ........... 453,521,522,
4:8 .............
'" 551.552.574.
4:9 .............
4:10 ........ .. .
"
98.100,101
'"
4: 11... ..... ... 209.225.231.
4:92.93... ...
4:93.
'"
516,574
242,247.248.
249,15l,2S8,
4: 114........
4:128 .........
""
105,128
265,266.268
4:130
'"
422,429
248,249,25 1.
4:135 ... 736.755
252,270,276,
4:13,14 .... ..
335.337.755.
'"
;;,
4:137.........
4:145,146-
4, 160. 161.
...'"
4:15 .. .........
4: 19........... 41)7.40&,413, 4:176 ......... "
242,247,249,
m 269,271,280.
4:20 ...........
'" 282
A Summuy of W.mk Jun.prudon"
'"
Sura S : Al-MA' klab 6:151-. ___
5:1_ .. _.. _.. 24.35 6:152: ..... ",.
'"
,.."
5:2............. 16. 162,202,
53-1,552
6:16<1. .........
235,661
5:3.._____ . 651,659,660,
Suta7: Al-A' rif
7:26 .. _ .. __
5:4............. '" '"
65-0,668,669.
610
1:3 1... .... ....
7;32... __ . '"
650
5:5-. __ .. _.. 376.661 7:80-81.-.• 600
5:2 1•.... _... 6l' 7:157 ......... 6SS
5:33........... 626 7: 189 ... ...... >50
5:.3 4.-_.. _
5:33-34.-_ '"
".
Sura 8, AI.,.\Rlll
8:1._____ .•
".
s:l8 ... ........ 61 9,623 8:38...........
'"
5'.2........... 391 8:41... ........
'"'55
5>45__ .• ___
5:49 ...........
.
531 ,539.540.
,
390.695
8:60....___.
8:72 ...........
8:73 .......... ,
m
3< ,
5:50 ..... ...... 50,505,532, 8:75..... ___ 245,328,332
629.1CH
5:89. ____.... 676,6n .682,
Sura SI : AI -TIIwbab
OS< 9: 11........... ,<6
5:90,9 1...•..
$:91.. ___ .•.
609 9:32 ..... ......
9:60_______ '"
S:93"_M"M.
'12
'50 'r.56-66"M' 638"
5:95 ........... '10 ~75 ...........
'"OS,
5'96. .... .... ..
5:106 ____
'10 9:n ...........
733,743 Su... 11 , Had
Sura6,A]· An ' lm 11:82.. ___ .
60 '
6:1 09 .........
6:115...... _.
6:119__ ,__
.
'", Su ra 12 : Ylbul
12:17. ___ ..
12:55. ____ '"
6:12L ........
' 61
663.669 12:72.".. "" "
n75, 169
Qur:mk Vcr>< Index
_...'"
13
14 "'TIIm- ",ill com~ d I;"", wMn J>ft>PI~ ClHIIid" ribol Id ",,,,',,,
1tIftI... ' " Irtuh.~........ _.. __.................. ___ ~_ •.• _~~ ... ~_ ... _.......
16 "TJr, PropItd (PBUH) IOId d ctUIW:I "'" Iliptlklud III ritk 11.. _.•
'''''''''''20
-1/ 0lII)IIII<' ~ ",1Odi/ion IrIridI if IlOl iIr ~ Boot '" A/LlL
17
18
Q
43
· 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 ............................................... .
44 "if A.llah dtJtroyed
the fruit, (prtUnt OM the trec<). whal
right would vnr v/you ha. 10 tab . .....................................
A Summary oflsbrni<: J~
.
'" ..... rill/t.ty <m .mil~ and Ulfo from blight.".•.__ ...__ .•...__ ...
.,"
"Hqw (,OItld "'" lake the monqof JIO"r (Muslim) broflteT
wo.,'-.'" ,"
' -~ . ..•..•.•.•.•.••.•••. _.... ........................................ .
' ...... " "/0',1
"
. - _. .J. • •
." """"" rr • fi fiortGung
IS 11
. •. .............................................. " ... .
"/ ftJtlj, that AI/oh has mad. iDw!ul to w (MusiimJ) /0 i"'Y
ill "dV<ln't jor................................... ,......................................
"
'"
"
50
·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,: ............................................ 63
SI "/-k w/Ja mina" Muslimfrom "".whip A.llah wi/l ~
Mm from ,~ ItIJrdship1.................... ..................................... 63
52 "All)' kHm thal brillt' If profit" (a killd of) rilld." ........... *... 64
53 "If ""f1H'" of you giw. .. w.,II (la wmebotl,) <Utd lh,rr: is 11
gift prutnltd to him or........................................................... 64
"A!I.M, £Wild /It &. U1y<. '1Gm IN Ihi"J"ftlv t..., pan""" .. . '"
84
"'A1/a114ISi</. W pmotl '" long ... 1ft -su Itis (Mushm) bfttdw."_ .
'"
85
86 "1. 'AmmM and Sa' d """"me pa,m, ,, in whal "'" would
'"
gtl (fro'" Ih. booly................................................................. .
8i "Th. Proph.t (PBUH) eonclwiUd Q am/met wilh Ih. people ""
0/ Khayba •..... .....................................................• ...... ...... ....... .
88 "Th. Proplvl (PBUH) murMd 10 Iht ItWl 0/ Khayba. Ih, '"
dolt palmi of KhayOOT...................•.•.•.....•.....•...•.................... '42
A Summa". of Wamic Jun..p~
134 "/I is nor '-ful fur "'1JI"H' to gil't agift lholli1fl it ""'* tx«pI fer--. 215
135 "The pleasanUst Ihings you enjoy comt from what you tarn_., 215
136 ' You and your propt'rty belong to fOur falhe r: ..................... 115,116,398
137 "Take what is sufficienl for you and your children.. . 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 ........................ ....................................... .
141) "Allah made a charily upon you at death by (allowing you to
giw) one-third of your wealth ............................................... . 222.226
162 "Cj ... Ihe wr-u of ,'''' jllherit",," (pnurjb.td jll ,'''' 243.254
Qurln) to ' 'OK who " '" ","titl~ to ...... ",jw Ih",m............... 279.282
163 "n... ....u.t. (j.e.. loyalty by l'irt..", of ellumciP<l'iDlI) is" bond '"
liu rIuu ofkiruhjp." ................... _........•.....•.•.....•......•.............
'"
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""".. ... .... ..... .......... ..... .... ............. ...... .. .... ....... ....... .. 260
166 "The Proph,l (PBUH) f"tjll~ th., grandmolher 10 on.,·sixth
of Ihe mare in CIIS< of........... .................................................. 260
167 "SM ..... s Ih"'firJIgraridmolher ",hom Ih", Proph",' (PBUH)
judgtd la lot giWII " sixth...... .... ....•............•........................... 262
168 "The ...ifo of s,,·d 11m1ll"-RJJIt/' IW01I I" lite Mnunger of
1tu..Jt (PBUH) with Iter """ d...,ghltl"l "Nl IRid. ....... _.... _... 267
169 · This ....... lhe """'id ofllte Mnullgerof ItU,.}, (PBUH) ill
Ihis ,.,..nl.•..... _............. __ .. _........ _............. _...................... _. 27 1
170 '"/tbt) Mw.! (_y 1tu..Jt be pi""'" ...irh him) ....... ~
rqardillg a CIIS< of illhtrira"u i" wlrldr................................ 276
171 ' If" pwwborn <Tits (or sha .... 011)' 01""," .igm iridiarli"g life),
Ih",,, it js 10 gel" <ha", of ;lIh"'ri'a"c"'.·................................. . 314
L72 "T"" ft/us dots liar "111;" Iht ...."mb of Ih", mOlher for mo",
Ihl1" lwo yea,s. •........................................................... ............ 315
L7J "If "")-I'n", "'"va " pro~rty. ;r gottl" hit h"'irJ.·.................. 328
L74 "0 M~ ofJJJ..h! I hwr "" hrin.-pl """,...,. dmIghttr."._ 328
115 "TIlt IIIalmralll"dt il tilt IInr of him w/w) hat "O"t:......~. 332
A Sum_If ofbl .... ic Jwi>pnodmo<
227 "11 concerns rhe woman whou: h""band d"". nol wanl to
ket:p hor wilh him any longer.
."
228
229
"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). ................... .
HO "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" .. ........................................................................ m
232 "This veru: addresus IM man who hate. his w'f................... m
233 "The wife oJThdbit Ibn QaY' came to rh .. PropMI (PBUH)
and said..................... ...................... ........................... .
2.34 "The most detalable /awful ad ill the Sight of .... 11ah is diwru:
".
<27
235 "Divorce belongs only to the Ont who lakes /wld of Ihe kg 429,430
(i.e. the husband) ..................................................... ........... .
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..................................
"If ~P"' adht:re to Ihe rm/inance of Allah collctTfli"g divo"e.. . ""
239
24Q "Il/he Book of .... lIah made lighrofwhile I am amonpl you~!'
""
m
241 "Thert ~re thru thing! whkh, whether undertaken seriously
or ill jesl.. . <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
..
s.....lls >o_llri"I.·..........................·........................................
246 'Wh"" I~ four monlhs a ... owr. IM husDlmd musl belt p1ly
'0
ordertd tit~r glw up I/,L ................................................. 449
247 "1"Mn do not approaclr ht. {i.t. do Mollraw iMllM:ouIW witlr
MrJ ""til. ...................... _.........._.........................._.... _....... _ 452
2411 · VnilJl ( rM«>rm:I"t:JI "mI ........td$ of) dttds dt~nd "pori
.~
2S4 "Stay durillg your waiting p.".;od ill IM Iroust wIttI'I! )'<)"
...
wal' informed ofyour husband. d ...tlr."......... ......................
255 "Talk IU muclr as you .....111 al Ih. home of OM4' of you aMd
wheM you waMI to I/ttP. ....................... .................................. . m
256 •.. . Wht " your 1I1.IISI,,,alion coma, do Mol perfarm pm>,".'
257 "T"M "",ilin: pniod of $I.wt _ I'" if hoo:I "","Ihly ptrMItb." '"
'"
2SB ' n.., _ ilillg p..,.iod p.-.u:riMl for the di"l'OfUd girl u.w..
who Iw bt:oll4'1I 11 dUld. ............... _............ __ ....... _..•...•.•....
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.._........................ 479.430
260 "Ne 0"" dtculd "".... otX1lIII inlerrourst with /I prtgn/lMi IMfIIln.. . 479,480
'Ml lhinp which become "nlawful becau .. ofblood ,w,loIU
'" a ... u"lawful b<-ca .... 0/_ .......................................................
"What is .."",,.,/,,1 /lccllust o{blood .,la tiom if "isq """'wf"/ '"
'" trua ..... af.-........... __ ..-..........................................................
"11 11ad b«n .,....... W in IM Glarioou Qur an lhallt n dt<U
."
'" sudJ m..u lh. marridgl: ulllawfuL .......................................
"The Qnly brtttsJj«tling ""' ich ",akes ""'~ ~ nlawful i •...
'S<
<S.
'" '0 Mr=ngrr of.-.Iklh! My!!'OlPlb !tW a I'CSt/ /(/ lh/s MII of millt. "
'" ..0
·" " Summary of !sL.mic Jurispru<koo<
'"'" " fitr (tht molhtri) smtll. btd and /lip nn bmtr for)\M' "'" untiL..
"Tht maternal aunt iJ of the sa"", slatu, as the mothu..... ..
26. ' You have man right to him as wng a. you do not marry... . 495.497
". "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 "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
'" father, your sist..,., your brother. ................................ ..
"It is tsstntiQI to fttd the slave, c/<Jtm him (pro~rly) and
'" not to bur.Un him with ................ _.......................................... 510
,> m "Your Mm art your /WO/hm and AII~h h~$ pullh~m undfT
your rnmmand................. ....................................................... 510
•
~ woman was punilmd bmlUSt of Q cat which sht /lad
'" impriwMd unril il died................. ......................................... 511
"Tht blood af a Mu.lim who te.tifi .. that Ihtre i. no deily
'" bUI Allah and Ihall am His Mt5U'nger................................. 516
"Th. diyah (blood money) for qumi-prtmtdil4lltd murdtr
"" is to bt madt as much as................................ 517
"Tht dlyoh (blood money) for quasi·prt'l1ltditated murder,
'" $1I(:h d$ thd(6)mltlitud with a whip or a srick, iJ................. 518
"Two womt nfrom (th. tribt oj) Hud/laylfought with tach
'" other and........................... .............. ..................................... . 52"
"T/u M ...rngtrof Allah (PBUH) gaW' thtjudgnrtnt that Cl
'" malt or ftmal • .ta... i............................................................. 523
"WhOO'vtr" suffers tht murder of Cl ",lariW', ht has thH holct
'" betwttn /W(l options... ............................................................ 528
"No pe,...,n forgi ...s an act of injustict (MM to him) 1nl/
'" Allah ... IU add 10 hiJ honorfor It.... ....................................... 529
"Th,,,, an thru (p,rsont) whOJtadionJ art not ruorded... 530
'"
l:iodllh lnck.
."
287 'No Mw/im should be killed in qiidl (!.-gal I"f'tribulwn) for
killing a di.beli."',,·.... ............................................ ........ 5JO
288 ' U i. ~n act of th. Sunnah that no fr •• pe....,n i. to be Idll.d
in qiFl>for killing a slave: . ..... .... ... .......... .......... ............... .... 5JO
289 'A l'<'N'nt is nollo be km.d Un qiltlV for his/her child:.... 53 J
290 "If a prrgnant ...,man inl.ntionally murden .om.o'"'........ 534
291 "Go home until you give birth:. .... .................. ... .................... 534
292 "Wh.n you kill (in qi~J. do it in ~ good mann.r (i.e. g.ntly
and mercifully)."..... .............................. .............. ......... ...... ...... 535
293 ' (The law pmcribed in) th. Bookof Allah i. qi~ ..·............. 539
294 ~ .. By Himin Whose Hand my ",ul is. I .hall carry (Jut th.
qijdj agai",t whoever (gowrnor) doe. so.......... ....... 542
295 'If all the people of Sun a had acted rogelh .. in killing him.. 546
296 'No penon is 10 be obeytd in a matter of diS<Jbedi."" to the
Cr""to~". ..
......... .............. ............... .............. .. ....... ........ ......... . 547
297
298
"If Ilnought you had intentionally t.stifim against the fint ...
•... The Prophe-t (P8UN) forbad. applying qi,as ro rh.
".
culpril until.... . ......... ... ..... ............ .. .. ... . 548
299 ':4 man stabbed anolher in hiJ knee with a horn. so the
injured man rame 10 the Prophet (PBUH) and Ulid 549
300 "H. wit"" "Ia/i... .. murdered has to .hoost 0'"' of two ways.. . 551
JOJ ·Umar a<ked some of th. Proph,," Companions about
~ ..
the legal judgm."t canuming th .. incident. ............ ...... ...... 554
302 "Th. Messengtr of Allah (PBUH) gaY< judg.nenl thal the
di)'l2h to be paid Iry those p<>ssening ."md. i........................ 557
J03 'A man WItS killed and Ih. M<S5engerof Allah (PBUH) gave
judgment that the di)'l2h to be paid was. 558
J04 "One thousond dinars are to be p<lid (as di)'l2hJ by the rn'ple
posstssinCgold.·.... .. ........ .............. .... .... ..... ..... ......... ...... .... ... 558
305 '(The diy<1h) for (killing) a bdieving .oul (j.e. p'Non) js on.
hundred camels: . .................. .... ... ...................... ......... .. ........ . 558
306 ' Verily, th. diyah (blood money) for quasi· pN'rnedjla/~d
murd., i. one IzuMdred carnels.". ............ . ........ ...... 558
J07 "Camel> h~ Y< /Jecom. dmr.•o . Umar ("'ferring to him.dfJ
htlS d«reed Ihal.. .................................. ......... ............. ...... ..... . 558
,., Sum"",,}, cl bbmi< Jurisprudrn«
'"
308 "Ouri", IIot lifrti~ rf ''''"ltkmllgtr of A/I"" (PBUH}. lilt
di"'lt ...... divided {nu. '1"<lrtnJ............................................ SW
~ .. 1'Iu diydr for (killing one "" Ih~ ~ of lite Scripf,,,,,~ is
"" /ulIf IIot di)"lh paid.for (hUing) " MUJlim.".........................." SW
-TM diyalt {'('id jar kiI/ing a Magi 'night IIIJtldroJ a;m"nu," 560
'" "Tht di)'/lh paid fo r killing" worn" .. i,l/fllj Ihe diy<>" paid
'" for killing" m"n,·...................... ............................................. ,
"The liiyah (jnd",,,,Uy for a WOUlld) of a WOrn,," jJ tljunllo
'" Ihal of a m"n unl ......................................................... ,........ .
~ .. A glr ......h U 10 M g;""" (as <lirah) jor an ,,/>orllon CIUl of
'" " womon/""" (,/u 'riw of) &111" Lahydn.·......................... 561
"rile ",,,It "'f'I" (if"" uJJ (IT wIwll, d"mngtrll n«nJillltu
'" lite ll>ltJ/ a", ....,,' of JiyoJt.•..... _............... _._ ......... _._ ....... _..
"Tht ..."... ifcuI offor wlrollydt!~ n«W.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·....................................................... .
'"
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
342 ~ .. You mwt haw: sullal intereou"" only through the ""gina
and n<Vtr exceta il. .............................................. . ................ 601
343 ~ .. slanderingchast. , U""wart bt/inlng women................... 604
344 "15 the... anything that call'eo peopl. 10 bt: thrown Into th.
Hellfi'" upon Iheir /au< Mh .. tha1l... ..... ............................... 606
345 "Ew:ry lx_agt that intoxicat .. i. prohibited (10 drink)."... 609
346 "E".rl llItbriant i< an inloxicant. and ' ''''y intoxicant is
prohibitaL ....................... ,.. ... ,.,.,.,... ........... ............ ... ... .......... 610
." A Summary of hla",ic Juri>prud.=
347 "All inlori.:<IJI' is rJu.t ""'id! ,unlngt:s the m;..J: __ .... __ ..•.•• 6 10
m "It is nat .. rmody; it is " malady.·................."..................... 610
349 "Allllh ha. n~r mad~ you, nmtdy h, .. prohibitw thing.".. 610
350 "'/,,"yont drlllles. .", ;n'oxk.. M. 'lint kuI! him.·................... 611
351 °M.w it tM,.,_ ...
Iht liglUnt prr:sai~ pu"Wllrvnt:
ri""l'I4<h~·........ .. .. ....................... ..... ........ ..... ....... .. . ..... ....... 611
352 ..... ,Iah has ,uI'I,d wine, tht ont who drinb il....................... 612
J5J •... II"d the ont ..h" rllh up ill p1ict:.................................... 613
354 "NcboJy shoWd k huJrftI....,,.,
,lull! k" kuItn ,,"IDs.. ...... 611
3SS "Tht /r""d should ". cuI off for . tt aling $(Imtlhing Iha/ ;$
worth" quartrr of a dinar or mo".". ..................................... 619
3.56 "TN /land cf" dritfis no! ~ flu", cf//Julj;w a ~ rfa diNir... 621
)S? .,. thief""'" admitted it~iMg WIU ,"m"""'<'II ~fo"" the
Prophet (PBUH) ... ...... ,., ............. ,., .... ,.,.,., ...........,...... ... ,. .. ..... 622
.3$8 "'ftM highWdymt n kill and uiu ~ple' pro~rtia, they
nI..u ~ kilkd ami cYl/Cifltd....•.•.•.•.... _........•.•..•.•.•.. ~. _........... 6Z7
359 ' If tIw: prtJt>m}' of ""yont' is. Iwilll f.<!U" '"""'r with""t right.. . 62$
360 •... 0 Mffltn~r of Allah! Wh~1 if a mon .om... desiring ID
ulu my propn1yr...... .......... ,.,.,.,.................. ,.,.,......... ,.... ,..... 628
.361 ' Htlp J'OIIr (M..wm ) /n-olhtr. wltdh..,....•.•..•.•.•..•.• ~ ........ ~.... 628
362 'q ~n,..,.,t pnps inft> tM /t(N.ou f>{some peopk witiuJut Ihd~
~rmi... ion .................. . ,... .......... ,., .... ,.,., ..... ........ ,......... ,. ......... 629
363 · WMnyou (Mu";"'i)a ,.. holding toon' iingll man ai your
INdnond................. _.......................__ ............•.••......•~... ...... 632
364 "If ""fOnt tria 10 dimlpl thf IIffiUn oflhis nmilln whik il is
" "ittd.... ..... ,........ ,..•............. ,., ...................... ,. ,.,.................... 632
365 "' . Mjo;n)'01I to fta, Allah ........... ,., ....................................... .
366 "q "",.,"" (MlI slim ) dllUliP his. ITligion (~ •. op<lf!olius).
kill him.-......•..•.•.•.••.• ~_ ............ ~ ....................•.•.. _...... _ .....•...• 637M 2
367 "'Mm i, built OM (th. follawing) fiw (pri"cipm) ... ......... ,., 639.645
368 "Th. kIIots (I.t. /onndholds) of Wo", art about to be
""fOvtled """ ..per QItOthn. ____ •.••.•.•.•.•.•.••.•_•.•.•.••..•.•.•_..... 64 1
369 ' Wlly """"')'I»< _ impriKJrted him for lit," days.ftd Itim a
/oaf of brMJ .wry d ajl., ...... .... ........ ,.,.,., .................... . ,., .... ,. .. 6-41
lhWth Index
'"
370 "I h~"" buM commaMd"" (by Allah) to figh t ogaimt th~
pt opk until rh,,! say. ................... ............... 642
371 "It Muslim dON not iMh",il from a disbe/i""",_._ 643
372 "BetW""M a ma" aMd polytheism aMd di.b£liq is th~
MtgligtMctofPnlyt'·.... _._.. ............... _. _._._... _....... 645
373 "The (oMly) ran~ntion ~Iwun u. and rhem..... ................. 645
374 ;-"I/ah. Almighty aMd Ever·M~jtslir b. He. llru madt
obligations so M 1I0r ntgll>ct thmL. 65 1
375 "The Prophet (PB UH) forixul. (tating) th . ....at of domrnic
donkey....... ........................................................... ................... 652
376 "The Messttlgt' of ,;,lIa/l (PBUHJ prohibit"" tating aMY 0/
tMfangtd beasts o/prey: . ... _............... _... _....... _......... 653
377 "The Mtsst;ng~rof Allah (PBUH) ord.red us to eat (th. flesh
of) hy...a.".. ...................... .......... ................................. 653
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 Mot ~nt"'
our mO«jut."
380 "Thi • ... rse ttfers to the utensil. proplt shart a .. d OO""W '" •
among Ihemstlve, such a.. ............ ................... .............. 656
38 1 "WhOf'_ believes iM Allah and the lA,t Day should ~r ...
hi' gutst generously by giving him his ""'ard... ................... 657
382 "If you stay with ,om. peopl. and th.y entertain you as they
should do Jor a gum. ... _._....... _._._._._ ......... _._._... _._...... 657
383 "Two dead (aMimals) and two (o~aMs rantaining) blood
ha~ bun mad. lawful to uS (Muslims). .............................. .
3S4 "It (tM ~a) i, thal w/rou water i, putt and whoS<' dead
animals ( Ihe fish) art /awful (to Nt).".. .. .............................. 66()
385 "TM food meanl in the "'rs/! ;. their slaught. red a"imal<.". ...... 661
386 "If tM slaughtering 1001 cau>e< blood to gush and ifth. Nam.
oJAll,,}, is m.n/iv".d.................................. ........................... 661
387 ". _.1 wil/ uU you why: A. Jar th.loolh. it i. a bone... 661
388 "When you .Iaughter. ,/aughter in a good way.... .................. 662
389 ~ . . On. oJ thecantt/s once ran aW<l)l SI! a man shot it with an
arrow trw.t stopptd it .. ._._._._._._._............. _._. ....... _.......... _..... _.. .. 662
..,
""
'"
"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..................................................................................... ,n
"H. whD kuPJ iJ dog Uctpt 1'' .
meant far WQ/(h11l8 a MnI.,. ,n
'" ...."gtJ. j,,,
'" (of Mmy) do not rnter Q h<l1lU' ...hnftll thin
'" "If on. Iuu /0 ,,," ..It 0<1111, """ "'...., ._r
dog "" a pictun. .............................. _......................................
by Al/,,}, or
olMon" kNp qui. ,."....................... ______ .__ ... _....... _..... _.
'"
675.676
' ~r SW<'!OTJ ,/Ill"
AIl4h if com ...i/lmg "" (JICt
'" by (Ilh"
of dUbdiq ". pclrthdsm.~....~ ....•.•.•~~~~ ..............__ ...•._. __ .
'"
". "Ht wIro ~TJ"l AI·Am<l""" u "'" 0 10t of us._...•.... _......
"/I if ,lie uwGll4lk of" ""'" <If hif 1oo1M. ............ ~~._ .......•.• '"
on
'"
<00 "My ll/lrion is f"lrd"",fd for wIuItthty rommll by m{IIa}q ... (;m,678
, <01 "If ""fO"tinclwks 'if .... u..n wills' {" hi, OG'h ...........•............
I <0, "WhtntW"r II.. ~ ..n OGlh 10 do wm.thing............... ........... '"
<0, "If ""fO"t IIlMS 11" OGlh 10 do something.............................. '"
679,681
'"
m
"N.. "" .... laktn iM afir of aMge. (A,.. ..,lid).......................... .
· Whilt th. Prophtl (PBUHJ ww dditwing" ".mOM. h. Ul ..
d IIIIIII..-hl:l rrmlli"Mltlllldilll- SIl .................................... . 690
..,
413 ' Whotvtr V(}m to disobey A/iah mw/not disobty Him."..
"TIlt propk ....ho nTt rWtd by" ""'" ..In will""""," /It suufSSjul."...
'"
414
415 "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 I""
on. who bribu "lid th. '"
one who takes bribe.·................................................. .......... ..
"Gift' given to gow:rnors air (considtrtd) iU~.n property....... '"
418
419 "Two porIOns rif.r ..d rh, ir case /0 th. Prophet (PBUH) .... . '"
420 "A,. )'<'U " nrighbor of his?" Th. man r. pllod ;n the Mg<lti..... . '"m
421 "0 M~ r!AJI.v.! Abo) Sun-m
(Ita husband) U a stingy /IIIIn ... . no
422 "111. pmmption is "pp/itd in tvl'ry jcinl undivUW pruperty..,....
423 "If people W<'n' t<> be given whnt th.y claim (with"ut pnwing '"
thtirdaim) .. ,_..................... ,_.................................. .. .... n,
424 'Proof /itj on tM plaintiff and the ""th is to be sworn by the
dffmdant.·.... . ........... _......... _...... _.... 716,720
425 'When tht Prophet (PBUH) was ask. d about tt stimony, he
said .. ....... .. ....... ............ ............. .. ........ .............................. .. . m ,
426 .... until three w"" ~rso/U from amongst his people witn .....
that 5 0 and m ,....... ,., .......,., ........... ,.......... ,.,..... ,.................... .
'"
427
428
"Th. M ......ngtr of Itllah (PBUH) decrud that testimony... .
·The Mth is /0 be sworn by the dtftndant,· ......... ............. ..... '"
739,747
429 "T'ht Prop/ltr (PBUH) acapttd rh. ttslimony of a midwifo.".......
430 '111= is no acw . fo r the one who crmf"""s,·........... _........ . '"
'"
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