Islamic Classes‎ > ‎2013-Spring‎ > ‎

Fiqh of Marriage

Fiqh of Marriage: Rights of the wife and Mutual rights of husband and wife

2013 Spring Session (March 31 to June 2 2013)

Class taught by Shaikh Jamaal Zarabozo


Recommended Textbook / Required or Recommended Reading:

There is actually a great deal of literature available on this topic in English. However, there will be no text that we will be using as the textbook for this class. Some books that I may refer you to include:


Closer than a Garment: Marriage Intimacy According to the Pure Sunnah by Muhammad al-Jibaly

The Fragile Vessels: Rights and Obligations between the Spouses in Islam by Muhammad al-Jibaly

Dwell in Tranquility: An Islamic Roadmap to the Vibrant Marriage by Kamal Shaarawy

Blissful Marriage: A Practical Islamic Guide by Ekram and M. Rida Beshir

The Status of Women Under Islamic Law by Jamal Nasir

The Marriage Contract in Islamic Law by Dawoud El Alami


Course Outline:

Rights of the Wife

a. Non-Financial Rights

i. Being treated fairly in a polygynous household

ii. Visiting one’s family


Mutual Rights of Husband and Wife

a. Right to Privacy

b. Inheritance

c. Sexual Relationships and Sexual Intimacy



2013-03-31 Class Notes


Imam Nawawi never got married. There are different explanations of the reasons for this. But in his statements, it makes it clear that the reason he did not get married was the heavy responsibility on the husband to fulfill of the rights as well as the number of obligations on the husband.


Nawawi was of the opinion that none of the kindnesses of the wife were required by the Shari’ah, for example cooking. None of this is obligatory upon her. If she doesn’t do any of that then she is not sinful. He was told that marriage was a Sunnah. He said: I may do this one Sunnah, but by doing it you may doing many forbidden things. If that recommended act leads you to not doing other acts that are compulsory then it is better not to do that recommended act.


Right of a wife to be treated fairly in a polygynous household


Ibn Mas’ud said: http://quran.com/16/90


إن الله يأمر بالعدل والإحسان وإيتاء ذي القربى وينهى عن الفحشاء والمنكر والبغي يعظكم لعلكم تذكرون


Sahih International

Indeed, Allah orders justice and good conduct and giving to relatives and forbids immorality and bad conduct and oppression. He admonishes you that perhaps you will be reminded.



The concept of ‘adl is something we see all through the Qur’an. wrt a polygynous marriage, Allah (SWT). The Qur’an says:


http://quran.com/4/3


وإن خفتم ألا تقسطوا في اليتامى فانكحوا ما طاب لكم من النساء مثنى وثلاث ورباع فإن خفتم ألا تعدلوا فواحدة أو ما ملكت أيمانكم ذلك أدنى ألا تعولوا


Sahih International

And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice].



http://quran.com/4/129


ولن تستطيعوا أن تعدلوا بين النساء ولو حرصتم فلا تميلوا كل الميل فتذروها كالمعلقة وإن تصلحوا وتتقوا فإن الله كان غفورا رحيما

Sahih International

And you will never be able to be equal [in feeling] between wives, even if you should strive [to do so]. So do not incline completely [toward one] and leave another hanging. And if you amend [your affairs] and fear Allah - then indeed, Allah is ever Forgiving and Merciful.


So how do we understand this? The correct understanding is that there are some forms of justice that can be met and others can’t be met.


http://sunnah.com/abudawud/12#88


The Prophet (SAWS) said: When a man has two wives and he is inclined to one of them, he will come on the Day of resurrection with a side hanging down.


حَدَّثَنَا أَبُو الْوَلِيدِ الطَّيَالِسِيُّ، حَدَّثَنَا هَمَّامٌ، حَدَّثَنَا قَتَادَةُ، عَنِ النَّضْرِ بْنِ أَنَسٍ، عَنْ بَشِيرِ بْنِ نَهِيكٍ، عَنْ أَبِي هُرَيْرَةَ، عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ ‏ "‏ مَنْ كَانَتْ لَهُ امْرَأَتَانِ فَمَالَ إِلَى إِحْدَاهُمَا جَاءَ يَوْمَ الْقِيَامَةِ وَشِقُّهُ مَائِلٌ ‏"‏ ‏


When spending time with one wife, you should spend an equal number of nights with each wife. It has to be a just distribution. You should have a similar amount of spending on each wife.


Another example, is that the Prophet (SAWS) asked permission when he was sick to stay at the house of A’ishah.


There are some things not in the control of human beings; e.g. your feelings towards each other. Impossible that you should expect that a husband have the same feelings to each wife. So there are some things that don’t fall under the category of what should be done equally. It’s OK to speak of the virtues of one wife over others (e.g. the preference of Muhammad SAWS for ‘Aishah. He can also accept gifts from her.


Surah Tahrim for example opening verses are about the opening verses about a gift Zainab b Jahsh gave to him of honey. This shows that it does not contradict the principle of equality.


The most obvious one is where he kind of treat one of his wives like he is no longer interested in her.  


Right of wife to maintain relations with her family


The Qur’an makes it clear that we have a responsibility to maintain relations with her family, and this extends to the wife. When we look at the opinions of the scholars on this point, we see a variety of opinions.


Hanbali view


Hanbali view is that (in Al-Mughni) Ibn Qudaamah writes: the husband has the right to prohibit her from leaving her house unless it is necessary. This includes visiting her parents, or visiting while they are sick or visiting her funeral. Imam Ahmad said: it is more obligatory to obey husband, because obedience is a waajib and visiting parents is not waajib. But it is not good for the man to do this, because it is not consistent with treating wives with ma’roof. But this logic seems self-contradictory. Ahmad said who has more rights upon the woman: the parents or the husband?


Other madhabs


Does the husband have the right to prevent his wife from visiting her parents?


Hanafis, Malikis and some Shafi’s and one narration in the Hanbali school are of the opinion that the husband does not have the right from going out to visit her parents. But they also suggest that they may come to visit her.


The issue is not the contact and maintaining ties, the issue is leaving the house and if this affects the rights of the husband.


So now these scholars who say this is a right, they clearly say this right is conditional (e.g. wife could spend all her time with her family). Clearly this is a question of ‘urf. One hanafi view is that it should be every jumu’ah. We should even keep in close touch with those who our parents love.


Most of the Hanbalis and some Hanafis and som Shafi’is say the husband has the right to prevent the wife from visiting their parents.


Some cite a hadith about a woman whose parents were ill, but her husband didn’t permit her to go. Then she asked the Prophet and the Prophet told her to have patience. But this hadith appears to be weak.


So the net opinion is that the right of the husbands take precedence over the rights of the parents.



2013-04-07 Class Notes


Right of a wife to visit her parents


We are discussing the right of the wife to visit her parents. There are two opinions on this question.


Opinion #1: The husband does not have the right to prevent his wife from visiting her parents. Hanafis, Shafi’is and Malikis and one narration of the Hanbalis.


Opinion #2: The husband has the right to prevent his wife from visiting her parents, even if they are sick or for visiting their janazah. This is the opinion of a small minority of the Hanafis, Shafi’is, Malikis and most of the Hanbali’s. Even though some hold this opinion, they use the terminology that “it is not proper for the husband to prevent his wife from visiting parents.”


Muhammad Najib Al-Matee’i was commenting on the shafi’i opinion that the husband has the right. One of the standard books in the Shafi’i fiqh called Al-Muhatthab and Imam Nawawi commented on it in a book called “al-majmoo’ fi sharh al-muhatthab” So then Al-Subki started on a completion of that work, but he didn’t finish it either, and al-Matee’i finally finished it.


Al-Matee’i commenting on the opinion about preventing the wife from visiting the parents/going to Janazah. Wrt to the hadith about not visiting, he says it is inauthentic. And then he says that this position contradicts many principles in the Shari’ah. It contradicts the rights of the parents, the rights of brotherhood (including sickness and janazahs), it also violates the right of ar-rahim (or the ties of kinship), it also violates human rights, he’s referring to the hadith of the Prophet (SAWS) about the one who doesn’t show mercy to the creation, it also violates the rights of neighborliness.


Ibn Qudaamah (despite the position above) says “It is not appropriate for a husband to prohibit the wife from visiting her parents and will incite the wife to disobey her husband.”


Conclusions:


1. Respect for parents is obligatory on everyone, even the husband.

2. The husband has qawwamah and he has the responsibility to help his wife perform her obligations.

3. Qur’an have obligation of treating the wives in a good manner. Clearly keeping the wife from her husband is not good treatment.

4. This will not produce love and mercy between the spouses.

5. Husband must have respect for elders.


Right of a wife to leave the house


In general, a husband does not have the right to keep his wife from visiting her parents. This is tied to the question of a right of a husband that allows him to prevent his wife from leaving the house. This is based on an incorrect hadith.


Some of the hadith in this area are fabricated, e.g. “leaving husband’s house without his permission, then the angels will curse her. And they asked even if he is oppressive? and the prophet said even if he is oppressive.” This hadith is not authentic.


What we do know is that in the hadith about the mosque is that she should ask.  


Exceptional cases of harm to the husband due to the right of wife to visit her parents


In general a woman has the right to keep connections with her family and the husband does not have right to prevent her from visiting her parents, provided it is within reason and it does infringe upon the right of the husband. This visits should not cause harm to the right of the husband.


If her visiting her parents can cause harm to the marriage, then the husband can prevent his wife from visiting her parents. In some cultures, the in-laws could make demands on the husband, her parents question her about her status and then when she returns back to her husband’s household, she is unhappy. In this case, can the husband prevent his wife from visiting her parents?


Now the husband has a shariah reason: they don’t have the right to cause trouble for him.


Do parents have right to ask their children to divorce their spouse?


Sometimes the woman’s parents make demands to divorce her husband. Do parents have rights to ask their children to divorce their spouses?


We have evidence from the Prophet Ibrahim where he asked his son to divorce his wife, rather indirectly.


Umar asked his son Abdullah to divorce his wife. Abdullah went to the Prophet and asked for his advice, the Prophet replied, Abdullah divorce your wife.


Imam Ahmad was asked about this, and Imam Ahmad said: “Don’t divorce her.” And then the person said: “What about the hadith with Umar and Abdullah?” And Imam Ahmad said: “Is your father like Umar?”


There is shariah reason for providing this advice to your children. As a parent, if you find that the marriage is causing harm to their children’s religion, then they have the right to ask the child to divorce their spouse. So it has to be based on a shariah reason. Other than that the parents have no right to interfere in the marriage of their children.


This interference into marriage by parents not based on shariah reasons, can occur on either the husband’s side or the wife’s side. But it is more problematic when the interference is from the parents of the wife, since the husband can then invoke his shariah right to prevent his wife from visiting her parents.


What should the wife do if the husband’s parents or mother is criticizing her consistently, such as for her looks, her cooking etc and always encouraging her son to divorce his wife.


The wife does not have the same right (qawama) as the husband when he prevents her from visiting her parents. But she can have other means to influence her husband. She could try to make her husband understand the harm caused to the marriage by the influence of the parents.


Of course both the spouses can resort to patience, since it is the most pleasing habit to Allah swt.


The wife should speak to her husband. She could have somebody else whom she trusts to speak on her behalf to her in-laws about the harm that is being caused to their marriage.


Conflict between husband and the parents of a wife


Suppose there is a specific conflict between husband and the father of a woman, who takes precedence? Let us say the husband decides to move to another town, and the father says that you should reside in the same town so that she could come and visit them more often. Who takes precedence?


Salah al Fuzan’s opinion (a contemporary scholar from Saudi Arabia) was asked this question. He says: “There is no doubt that the rights of the parents takes precedence. If a husband obliges a wife to disobey her parents, she should not obey him, since that is a great sin.”


Ibn Taymiyyah says: “If the woman becomes marries then her husband has more rights upon her than her parents, and her obedience to her husband is more obligatory. He then quotes the verse:


عسى ربه إن طلقكن أن يبدله أزواجا خيرا منكن مسلمات مؤمنات قانتات تائبات عابدات سائحات ثيبات وأبكارا

Sahih International

Perhaps his Lord, if he divorced you [all], would substitute for him wives better than you - submitting [to Allah ], believing, devoutly obedient, repentant, worshipping, and traveling - [ones] previously married and virgins.


And the said qaanitaat is an obedient wife.


He quotes this hadith of the Prophet also said that dunya is like mataa (temporary benefits), and the best of enjoyment is a pious wife.


He then quotes another hadith, if a woman prays five times.... and protects her chastity, then she will enter jannah from any of the five gates ..


He then quotes another hadith that describes the woman who enter jannah


He quotes another hadith that if he were to ask a woman to prostrate to anybody after Allah swt it would be her husband.....


He quotes another hadith that the woman is dependent upon her husband and husband has to treat her kindly.....


And after quoting all of these evidences, he says that the husband has precedence over the parents. He says obedience is only in the matters that do not violate the shariah.


If the husband asks you to disobedient to Allah swt or to break contacts with your parents, then you do not obey him, because it is in violation of the rights of Allah swt.


But in a specific conflict as the one discussed above then whose opinion takes precedence, Salah al Fuzan’s or Ibn Taymiyyah’s opinion?


It looks like ibn Taymiyyah has more specific and stronger evidence and hence the husband has a preference over the parent only in the specific cases that do not violate the shariah.


We are discussing legal rights, the husband should try to be accommodating to his wife and her parents, but if the separation is for a longer period of time, then he could ask his wife to move with him and disobey her parent’s advice.


Islam gives parents a special role. The parents should be respected and obeyed. Even in individualistic society, the attitude of those who are obedient to Allah swt, should obey their parents. For Muslims to doubt the structure of the household and the rights given to the parents is something strange, we can see the liberal societies question it, but Muslims should not question those rights.



2013-04-14 Class Notes


Sh Jamaal is responding to a comment online, “Is the wife supposed to be blindly obedient to her husband in order to be considered righteous, where is the voice of the wife?”


We are discussing the legal laws of the relationship between husband and wife, it is the legal framework on which either party can sue the other in a court. But as we studied in the earlier classes that a marriage is not just a legal contract, it is based on a relationship of love and mercy, it is not just commands and laws.


If a woman is not being treated properly, she has a right to complain to a judge. The marriage is not just a relationship based on who is the boss. There are also several hadith that talk about the reward for a woman when she obeys her husband.  There are limits on a woman’s obedience to her husband, the obedience has to be based on what is approved by the shariah and what is just in the eyes of Allah swt (based on the Qur’an and the Sunnah).


The aspect of obedience to the husband is restricted to the rights of the husband over the wife within the limits of what is allowed by the Qur’an and the Sunnah.  For example, he cannot ask her to do something that is against something in the shari’a.


We discussed the quote of Nawawi, wherein he says that the acts of cooking, cleaning etc are voluntary acts for the wife, it is not mandated by the Shariah. In Nawawi’s point of view, serving the husband is not the right of the husband. He says that it is not within the realm of the rights of the husband.


A wife has the right to follow her own fiqh opinion, the husband cannot force her to follow his own madhab, with one exception: If the fiqh madhab would cause harm to the family (since he is still responsible for the family) or conflict with one of the rights of the husband, then she should obey the husband’s madhab.


Many scholars, in this case Abdulrahman abdul Khalaq, when they talk about Qawaama (leader of the family), say that it does not mean that he is the absolute ruler of the family, he should consult with his family (shura), he should deal with his family with kindness and good manners (and live with his spouse in mar’ouf).


Surat al Imran, ayyah 159, is quoted as evidence for the above opinion.  Allah swt is saying that one should consult the people and not exert total authority over others.  This applies to anyone who is in a position of authority.


The Prophet is receiving revelation from Allah swt and yet Allah swt is asking the Prophet to consult with his people.


Surat al Shura, ayyah 36-39, Allah swt is giving us a general description of those believers that have true belief in Allah swt and will be rewarded by Allah swt in the akherah.


These are just general descriptions of what a believer should be as described by Allah swt and listed in them is the shura or consultation. These descriptions are in general and not related to rulers or any kind of people in authority.


Surah Baqara ayyah 233, Allah swt talks about breastfeeding for the complete two years.  In the midst of it, it’s mentioned that if they both desire to wean the child, if by mutual consent and consultation, then there is no harm in the act of weaning the child (which would be an exception to the general premise of the ayyah which is to breastfeed).


Footnote: The elevated status of women in the revelation was a sort of revolution for the sahabah based on the following statement of Umar Khattab.


One hadith in Sahih Bukhari (and also in Sahih Muslim): ‘Umar Khattab said, by Allah, in the time of jahiliyyah, we did not pay any attention or consultation with women.  He goes on to say that one time he was thinking about doing something and his wife said to him, why don’t you do such and such.  ‘Umar’s response immediately was what business do you have putting your nose into this affair?  His wife said to him, are you surprised that I’m giving you advice and talking to you in this way? She said by Allah swt, your own daughter Hafsa talks to the Prophet saas in this way and he would sometimes be upset with her for the day (similar case with the other wives of the Prophet saas).  


The wives of the prophet saas had no problem talking to and telling the prophet saas what he should do and what they wanted.  Even when the prophet saas was on the death bed, this was the case.  He said from his deathbed: appoint Abu Bakr to lead the prayer.  When A’isha (ra) heard this, she know what it meant; the leadership was going to Abu Bakr.  She was concerned about her father so she said that Abu Bakr was very weak, why don’t you appoint so and so.  The Prophet saas refused.  She convinced Hafsa to say the same.  


Another example we see is in the Qur’an, when the wives of the Prophet saas complained to him about the amount of wealth they had in this Dunya.  That’s when Suraat Azaab, ayyah 28-29.  They were given a choice: remain with the prophet saas or be released to have the things of this dunya.  The asbaab for these ayaat were the complaints of the wives of the Prophet saas.  He provided for them but they wanted more.  


In this case, the Prophet saas said to A’isha that he has an important matter to discuss with you and perhaps you should seek teh advice of your parents before you respond.  When he told her about it, she said she had no need to discuss this with her parents.  Her response is obvious, she wants the Prophet saas and the Hereafter.


In another case, where A’isha was accused of zina, (this was one of the most difficult situations for the Prophet saas due to the strong sense of honor in the ‘urf of the Arabs at that time - for something like this to come to the family of the Prophet saas was extremely grave).  


In the process of figuring out how to deal with this issue, he asked a number of people, including Zaynab bin Jashash (sp?).  He made shura with them and was collecting opinions.  It’s very clearly established in the Sunnah and the books of fiqh as we mentioned in the last quarter, if the woman is not being treated in the right manner (this is a real thing not just some theoretical issue), she has the right to go to the court and seek action.


The feminists and modernists accuse Islam of being all about obedience; obeying Allah swt, obeying your parents, obeying your husbands, etc. They are coming from the perspective of freedom, individual choice.  Even guns, everyone should have the personal choice.


We know that this way of life of obedience to Allah swt is the proper and best way.  The people who insist on individual rights and so forth are never going to find the best way of life even in this dunya, that’s why they are always full of contradictions. Everybody realizes that all freedom includes some restrictions, they know that but sometimes do not acknowledge this contradiction.


example: the 99%’ers believe in their own freedom and such but at the same time don’t believe the 1% has the right to protect themselves and their wealth.


As muslims, we are all about submitting to Allah swt and taking this guidance we have from Allah swt and using it for our success in this dunya and the akherah.  In this guidance, Allah swt has highlighted the family and its structure, authority, etc.  At the same time, Allah swt has guided us on what principles and examples are to be used in the structure and operation of the family.  It should be through love and mercy.  


There’s also an important hadith that the sheikh believes needs to be commented on that was referenced earlier.  This hadith, the jist of it is that one time there was a dispute between A’isha and the Prophet saas.  They were looking for someone to be an arbiter in this dispute.  The Prophet saas recommended some people and eventually it ended up that it should be Abu Bakr.  Abu Bakr comes to resolve this dispute.  What happens is that he comes and the Prophet saas says to A’isha, do you want to speak first or should I speak?  A’isha says that you speak but don’t say anything but the truth.  When Abu Bakr heard this, he slapped her to the point where her lips began to bleed.  Then the Prophet saas intervened between the two and said that this is not what we wanted from you (you were supposed to help and not make things worse).  This hadith was recorded by At-Tabarani and another source.  The hadith is weak, the chain is weak and there is no supporting evidence.  One of the narrators is accused of committing tadlees at tasweeyah (go back to the hadith classes, this is where the narrator makes changes further up in the chain of narrators).


Some of the rights that we came up with were rights of both husband and wife or common or mutual rights. The right to intimate relationship is a mutual right which we will discuss in the near future.


Mutual Rights of Husband and Wife: Right to privacy


The next right that the class came up with:


Fakharuddin ar Razi said that the more you know a person, the less you like that person. He said that Allah swt knows all about us and yet he is willing to listen to our dua and help us and guide us.


Husband and wife are bound to be close to one another and know about each other’s weaknesses and shortcomings. They should have a right to each other’s privacy in order to guard their honor.


In some cultures it is not unusual for the women to discuss the sexual matters with other women, and men to do the same with other men with regards to intimacy between husband and wife.


The Prophet asked the people do any of you go and be private with your spouse (ie have sexual relationship with them), the people replied yes we do. And then after that Prophet asked whether any of you sit and discuss it with other men. The men were silent. He did the same questioning with the women, and the women remained silent for the second question too. Then a young girl walking on tiptoes (so that she can be seen above the people sitting) and told the prophet the men discuss it amongst themselves and women do the same. And then the prophet told them do you know what these people are like? They are like a female devil who met a male devil and satisfied their desires in public. (paraphrased).


Here the prophet has prohibited the discussion of these private matters between the couple with others. In addition to these intimate relationships, the Prophet said that the shortcomings of your spouse should also be kept private.

When a spouse vents their emotions with the other spouse, it is expected that these matters will remain private between the couple. If somebody is committing dhulm, then you have the right to speak about them behind their backs. If the matter is false and you spread it with others then you are lying about them, but if if is true matter, then you are committing gheeba (backbiting) against them.


Right to conceal private sins?


Should a spouse conceal a sin committed by them? If you see your spouse committing a sin, should you conceal it?  We are not discussing that they are lazy around the house, we are discussing a sin.


Footnote: If you are making naseeha to somebody else, then you are allowed to make gheeba against them.


Discussion of concealing a sin between any two people not just spouses


If somebody is making a sin, you do not go around and publicize it. You can go and advise them, provide naseeha and eradicate evil.  If you know that it is just a slip and otherwise the person is very pious, then you should conceal it and insha-allah Allah swt will conceal your sins. If the person commits a sin publicly, then he is not deserving of concealment of his sins, since he has publicly committed the sin.


Discussion of Urf about the first night of marriage in some Muslim cultures


Mukbil bin Haadi, a Yemeni scholar (passed away not too long ago).  The sheikh is giving this example in particular from him.  He’s “ultra conservative.”


He was asked a question about something very specific, this goes back to another issue where there are cultures and customs in many parts of the Muslim lands that we need to deal with and correct it if we have the opportunity to do so.


One of the practices we see in some muslim countries is that after the wedding night, the next morning the mother in law will go into the bedroom and take the bedsheets and hang them in public.  The goal of this is to show that the woman was a virgin and during the first intercourse there will be some bleeding.  They put this out publicly to show that she was a virgin.  This practice has nothing to do with Islam and is completely from jahiliyyah.  


Ruptured hymen is not a sign of the wife’s virginity.


If a girl is active physically, there are many reasons why this membrane can be ruptured and may not have any bleeding on the wedding night even though she is a virgin.  During the time of the Prophet saas, it was not uncommon for young girls to spend almost all of their time inside the home.


This scholar is more conservative than Sheikh Al-Albani.  people sometimes give them a bad reputation but as scholars they know how to put things into the proper perspective.  


He was asked, if someone marries a woman because she is a virgin and then finds out that she isn’t, should he conceal it or let it be known?  This could be very well be a specific Arab cultural practice.  What they mean is that whether there is bleeding or not during the first intercourse.  The sheikh said that it’s important to understand this.  He said that they should realize that scholars and doctors have mentioned many reasons why there may be no bleeding (“virginity may be lost” due to the hymen being ruptured) during the first intercourse.  This doesn’t mean she has done anything wrong or haram.  The one in this situation should be intelligent and should give her an excuse that she is a virgin and has not committed zina.  He should realize that any of these physical reasons for the hymen being ruptured may have happened.  It’s obligatory for him to conceal this fact for her.  he quotes a hadith of the Prophet saas, whoever conceals a muslim Allah swt will conceal for him.  It’s forbidden for him to spread this amongst the people.  


This can be something that leads to a lot of suspicion on the husband’s part and others and it’s important to conceal this as it leads to widespread gossip, slander, etc of the woman.


2013-04-21 Class Notes


We are discussing mutual rights between the husband and wife. We discussed right to privacy last time.


Mutual Rights of Husband and Wife: Right to inheritance


When an individual dies, there are certain people who are designed by the shariah as the heirs. Since they are designated by the shariah, they cannot be removed.


Islam gave right of inheritance to the women, which was unheard for the people of that time. In fact at that time, there were practices by which women themselves were inherited.


Events that lead to inheritance - Aqd, Wala, and Nasab


When you do walaa -- when you free a slave, that slave inherits from you and you inherit from the slave.


Such that once the couple get married, the wife and the husband have the wife to inherit from one another. Simply by virtue of the ‘aqd she is entitled to her inheritance.


Prophet (SAWS) was asked about a woman whose husband had died before they consummated or set the mahr. The Prophet (SAWS) says: she is entitled to her mahr, and she should wait for the ‘iddah, as well as her inheritance.


Inheritance is a right of Allah swt


In Islam, you can not disown your son. Unless there is a preventive factor: the son does not inherit from the father if the son killed them. If the parents are not Muslim then they can’t inherit from one another.


Wasiha - 1/3 of inheritance can be set aside


You are allowed to bequest up to 1/3 of your wealth in your will. Those designees cannot be for designated heirs. You cannot restrict the amount of wealth that is set aside by the Shariah for the designated heirs.


Footnote: Wasiyya (will) can be written by a non-Muslim for a Muslim and vice versa. So there is no harm in inheriting wealth from a non-Muslim. If a non-Muslim has set aside more than 1/3 of the wealth, then out of caution you should not accept more than the 1/3 of the wealth.


Scenario: A person on his deathbed divorces his wife in order to exclude her from the inheritance.


Actions are based on intentions. The husband is not allowed to harm the wife. So here the question of intentions of the person are to be judged. If he does it just to exclude her from inheritance, then it will be a great sin on him.


Marradun maut is the disease of death or deathbed. A person cannot cause harm to his inheritors, ruling them out of their share of the inheritance. In Maliki madhab, any contracts on deathbed are considered null and void, because of this reason.


Scenario: Prenuptial agreement that has to deal with children are considered null and void, since they do not yet exist.


What are shares of husband and wife?

Surah Nisa verse 12 informs us about the shares of the husband.


http://quran.com/4/12


وَلَكُمْ نِصْفُ مَا تَرَكَ أَزْوَاجُكُمْ إِن لَّمْ يَكُن لَّهُنَّ وَلَدٌ ۚ فَإِن كَانَ لَهُنَّ وَلَدٌ فَلَكُمُ الرُّبُعُ مِمَّا تَرَكْنَ ۚ مِن بَعْدِ وَصِيَّةٍ يُوصِينَ بِهَا أَوْ دَيْنٍ ۚ وَلَهُنَّ الرُّبُعُ مِمَّا تَرَكْتُمْ إِن لَّمْ يَكُن لَّكُمْ وَلَدٌ ۚ فَإِن كَانَ لَكُمْ وَلَدٌ فَلَهُنَّ الثُّمُنُ مِمَّا تَرَكْتُم ۚ مِّن بَعْدِ وَصِيَّةٍ تُوصُونَ بِهَا أَوْ دَيْنٍ ۗ وَإِن كَانَ رَجُلٌ يُورَثُ كَلَالَةً أَوِ امْرَأَةٌ وَلَهُ أَخٌ أَوْ أُخْتٌ فَلِكُلِّ وَاحِدٍ مِّنْهُمَا السُّدُسُ ۚ فَإِن كَانُوا أَكْثَرَ مِن ذَٰلِكَ فَهُمْ شُرَكَاءُ فِي الثُّلُثِ ۚ مِن بَعْدِ وَصِيَّةٍ يُوصَىٰ بِهَا أَوْ دَيْنٍ غَيْرَ مُضَارٍّ ۚ وَصِيَّةً مِّنَ اللَّهِ ۗ وَاللَّهُ عَلِيمٌ حَلِيمٌ


Sahih International

And for you is half of what your wives leave if they have no child. But if they have a child, for you is one fourth of what they leave, after any bequest they [may have] made or debt. And for the wives is one fourth if you leave no child. But if you leave a child, then for them is an eighth of what you leave, after any bequest you [may have] made or debt. And if a man or woman leaves neither ascendants nor descendants but has a brother or a sister, then for each one of them is a sixth. But if they are more than two, they share a third, after any bequest which was made or debt, as long as there is no detriment [caused]. [This is] an ordinance from Allah , and Allah is Knowing and Forbearing.



Inheritance for the husband from his wife: If there are no children then half, or if there are children then 1/4; if there are no children.


Inheritance for the wife from her husband, 1/4 if there are no children, 1/8 if there are children.


The keys to the law of inheritance is to identify who are the heirs. Once you identify the heirs, then the shares are laid out by the shariah.


The five inheritors who are never excluded from the inheritance are: the father, the mother, the husband, the wife and the child. If the father is alive, then the grandfather wouldn’t receive it. If there are no other heirs, then they receive the residuary.


There are some blocking and residual rights of inheritance, this is the reason why the total adds up to more than 100 percent.   


Differences in shares of the husband and the wife


This point is discussed by many enemies of Islam. In theory according to most madhabs, the woman is not financially responsible for herself, it is either the father or the husband or the state (if she is orphan or divorced or widowed or never married).


This difference is related to the responsibilities of the husband and the wife. Many books of fiqh have examples of where the share of the woman is greater than the share of the man.


Examples of differences in shares


A woman dies and leaves behind husband, father, mother  and two daughters.


Doesn’t matter if there are grandparents/granddaughters because of “blocking”.


Then. Husband gets 1/4, Father gets 1/6 + remainder, Mother gets 1/6 and two daughters gets 2/3 collectively.


Since the total is more than 1, there is no residual. So the husband gets 3/15, father gets 2/15, the mother gets 2/15 and the daughters get 4/15 each. In this case, the daughters get more than anyone else.


But now let’s say a woman dies and leaves behind husband, father, mother  and two sons.


Then the husband gets 1/4, the father gets 1/6, the mother gets 1/6, then the two sons get the residual.


Then this equates to two portions, and the father gets 3/12, the father & mother get 2/12 each, and each son gets 2.5/12 each.



Mutual Rights: Right to intimacy


This right can be divided into three areas, what is the right of the wife with respect to sexual intimacy, what is the etiquette of this right, and what is the right of the husband. The right of the husband has become a topic of controversy. There are some issues about whether a husband demands sexual relationship with his wife and she has to comply, there are some questions about marital rape that we might have to discuss.


General introduction to Sexual Etiquette


Sexual etiquette is something of a taboo subject. But if you look in the books of fiqh, they are discussed extensively. There was a scholar who wanted to reject a hadith from Sahih Bukhari because it discussed some issues of a sexual nature that he could not imagine that the sahabah would have discussed this kind of thing.


If you go through the books of hadith, you can find these issues discussed. If you go to books of fiqh, they have to touch on the topics people raise.


What is the Islamic view about sexual relationship in a marriage?


Among the sufis, for example, they had a clear bid’a developing an understanding as not being good for the individual. E.g. Abu Taleb Al-Makki, they went through a book called Qoot Al Quloob (Medicine for the heart). In some ways you can say it was the basis of Ihya Uloom Al-Deen.


Abu Taleb al-Makki says that sexual desire is one of the most serious obstacles to spiritual advancement. He says that in order to keep away from sexual desires, you get married. And then he says “Marriage is the source of endless distractions and heavy obligations.” He goes on to say: “Marriage is an inferior option.”


Footnote: You can find similar statements in many Eastern religious texts. Sufism has a heavy Persian, Hinduism, Buddhism influence. And the Sufis have no problem with it.


Note: Al-Ghazali disagreed vehemently with Abu Taleb Al-Makki, and he said that the Prophet (SAWS) said there was nothing wrong with it, or immoral about it, and if you go to the books of hadith. However, there is a hadith that maybe Abu Taleb Al-Makki could possibly use as a support:


http://sunnah.com/nasai/36#2


"The Messenger of Allah said: 'Women and perfume have been made dear to me, but my comfort has been provided in prayer.'"


أَخْبَرَنَا عَلِيُّ بْنُ مُسْلِمٍ الطُّوسِيُّ، قَالَ حَدَّثَنَا سَيَّارٌ، قَالَ حَدَّثَنَا جَعْفَرٌ، قَالَ حَدَّثَنَا ثَابِتٌ، عَنْ أَنَسٍ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ "‏ حُبِّبَ إِلَىَّ النِّسَاءُ وَالطِّيبُ وَجُعِلَتْ قُرَّةُ عَيْنِي فِي الصَّلاَةِ ‏"‏ ‏


But when the Prophet (SAWS) said his other hadith about marrying, he said it was from the taqwa and fear of Allah (SWT).


History of Christianity is very different. In fact, the West used to attack Islam for having liberal views on sex. And now they are attacking Islam on the opposite issue. So if you are going to respond to those attacking Islam, then you should realize that they don’t have a solid foundation.


Feminists and Modernist view about sexuality


So compared to the modernists now and progressives, they keep changing the Islam. Even the feminists, when you look closely at some of the things they say, they used to attack men saying men are chauvinist pigs and only look at women as sexual objects and they would emphasize things like pornography, etc.


This point of view is now de-emphasized by the modernist and feminist movement. There is now a more liberal attitude to such an extreme that women are doing the same kind of treatment to other women (as lesbian partners).


We will focus only on the Islamic perspective and what are the rights of the women and the rights of men. The name of the book was ...... by .... Kaci?? Ali


2013-04-28 Class Notes


Discussion about texts on sexual etiquette


There are many texts available but none that the Sh would recommend. There are many articles written by feminists. They interview some conservative Muslim women and ask them questions about sexual satisfaction in their married life and publish those results.


One of the point Kecia Ali makes is that the “classical texts” note the importance of female fulfillment. But usually focusing on the consequences of not fulfilling. Seen as a male right and a female duty.


So it is important to understand where the Shari’ah puts things. The rights of intimate relations are for both husband and wife.


What the scholars have said about the wife’s rights


To have the husband spend the night with her and her rights to sexual intercourse and her sexual fulfillment.


1. Spending the night with one’s wife


Scholars have mentioned that it is an obligation to spend the night with the wife, particularly if she is afraid to spend the nights with her. At the very least 1/4 nights must be spent with his wife. (This comes from having 4 wives although it’s not explicitly referenced by the author)


2. Sexual intercourse


Main point why these are discussed in the fiqh books are rights that are established in the Shari’ah. But remember not to get stuck up on rights. But if there is some dissatisfaction on one of the parties, then we need to look at the rights and may be remedied by a judge.


Meeting the sexual needs of the wife: part of the obligation of the husband. Marriage in Islam has many purposes, including building this moral fabric for society. An essential aspect of that (which is mentioned many times in the Qur’an) is the guarding of the private parts. Marriage is the legal way that allows people to fulfill their sexual needs. If those needs are not being met within the constraints of the marriage, then it is important that they understand that it is part of their responsibility to one another.


We see different texts from the Prophet (SAWS) that if the husband is busy with ‘ibaadah, the Prophet (saas) reminded them of their obligations to his wife (eg his wife has rights over him and he has obligations towards her in this same respect). E.g. a woman complained that her husband has no need of women. So the Prophet (SAWS) went to ‘Uthmaan and said “Am I not an example for you?” So the prophet (SAWS) said your family has a right upon you and your body has a right upon you.


Surah Nisa verse 129 says:


وَلَن تَسْتَطِيعُوا أَن تَعْدِلُوا بَيْنَ النِّسَاءِ وَلَوْ حَرَصْتُمْ ۖ فَلَا تَمِيلُوا كُلَّ الْمَيْلِ فَتَذَرُوهَا كَالْمُعَلَّقَةِ ۚ وَإِن تُصْلِحُوا وَتَتَّقُوا فَإِنَّ اللَّهَ كَانَ غَفُورًا رَّحِيمًا

Sahih International

And you will never be able to be equal [in feeling] between wives, even if you should strive [to do so]. So do not incline completely [toward one] and leave another hanging. And if you amend [your affairs] and fear Allah - then indeed, Allah is ever Forgiving and Merciful.


Clearly, this indicates that leaving them hanging -- unattended to -- is not a good thing.


Discussion about the duration of time between sexual relationship with your wife


Scholars went above this and discussed the minimum require.  However, there are no explicit texts that provide a minimum in this regard; the scholars nonetheless deduced what they felt were minimums.


Opinion #1: Once every month


Ibn Hazm’s opinion is that the minimum is one time in every monthly cycle. He relies on the verse in the Qur’an when the women finish the menses.


http://quran.com/2/222


وَيَسْأَلُونَكَ عَنِ الْمَحِيضِ ۖ قُلْ هُوَ أَذًى فَاعْتَزِلُوا النِّسَاءَ فِي الْمَحِيضِ ۖ وَلَا تَقْرَبُوهُنَّ حَتَّىٰ يَطْهُرْنَ ۖ فَإِذَا تَطَهَّرْنَ فَأْتُوهُنَّ مِنْ حَيْثُ أَمَرَكُمُ اللَّهُ ۚ إِنَّ اللَّهَ يُحِبُّ التَّوَّابِينَ وَيُحِبُّ الْمُتَطَهِّرِينَ

Sahih International

And they ask you about menstruation. Say, "It is harm, so keep away from wives during menstruation. And do not approach them until they are pure. And when they have purified themselves, then come to them from where Allah has ordained for you. Indeed, Allah loves those who are constantly repentant and loves those who purify themselves."


The Amr of sexual relationship is that of permissibility and not of obligation.


Opinion #2: Once every four days


Al Ghazali says that it is best that the man has relations with his wife every four days. He does not have any explicit textual evidence other than from purification/protection.  And then he says that the duration can be increased or decreased in order to meet her needs and to keep her chaste.


Opinion #3: Once every four months


Some other scholars say at a minimum once every four months. This is based on the illa that if a man does not approach his wife for more than four months then she can ask for separation.


Opinion #4: No specific time limit


Strongest opinion according to Sh is that there is no specific time limit, but it depends on what will suffice her and what he has the ability to do. If they differ in this affair they should go to a judge.


The husband and wife need to satisfy one another and they need to express to one another what satisfies them. If there is sexual frustration in the marriage, then they should convey it to their partner, and make each other understand what they need from each other. This could be difficult topic for the couple to discuss specially for newly married couples.


Discussion of female sexual satisfaction


Scholars discuss the issue of the female sexual satisfaction. The reason why they discuss this topic is because of the differences between the male and female sexual satisfaction. In particular sometimes it takes longer for the woman’s sexual satisfaction.


Weak Hadith about female sexual satisfaction


Some of these hadith are quoted in books like Al-Mughni by Ibn Qudaamah. When one of you has sexual relations with his wife, he must be sincere in his efforts, then if he meets his needs before she does, then he should not rush her until she satisfies her needs.


In another hadith, the Prophet (SAWS) says you should not have sexual relations with her right away, but you should wait until she is also sexually aroused. And the messenger asked: what do you do for that, he says you should kiss her and touch her and try to arouse her, and when it seems she is ready then engage.


In another hadith, None of you should come to your wives like animals come to one another, there should be a messenger between you, such as kissing and speech.


However, all three of the hadith mentioned above are graded as weak. The second one is from ‘Umar b Abdul Aziz, which is rather removed.


The scholars also point out the fact that ‘azl or coitus interruptus -- this should not be done except with her permission and part of the reason for that is that this will affect her satisfaction and therefore should not be done unless by her permission.


Ibn Katheer quotes Ibn Abbas said: “I beautify myself for my wife in the same way that I love for her to be beautified for me.”


This shows that there is a clear understanding that women also have desires. And none of the books really discussed this as being something exclusively for the men. So the husband has to realize that it is not just about him being fulfilled sexually as well as meeting the needs of his wife.


Discussion about refraining from sexual relationships either by the husband or the wife


Question on IslamWeb:


“I have read your fatwa that says that a woman should not keep herself from having relations with her husband, what if it is the other way around?” The hadith that describes that the woman will be cursed by angels when she keeps himself from his wife. What about the husband who forces his wife to do something not proper?


There is a difference in the text about the refraining of sexual activity by the wife as compared to the husband, why does this difference exist in the shariah?


The Mufti responds that there is clear text about this in the Quran and Sunnah. So it is not very becoming of the believer to oppose the text of the Quran and Sunnah, if Allah and his messenger have decided an issue, then you have to follow it.


This ruling contains hiqma or wisdom and you must follow it. If the wife does not satisfy the sexual relationship, then either the husband will turn to haraam or he will take a second wife, and none of these options would be pleasing to the wife.


Then he says that if the husband is causing her harm then she is within her rights to ask her husband to stop. However if the harm is not real other than having no interest in sexual relationship, then it is not a real harm.


If the husband refrains from sexual relationship with his wife, then there is no text that says that the angels will curse him, but there is no doubt that he is a wrong doer, it is one of the most important rights of the wife that a husband must fulfill.


وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلَاثَةَ قُرُوءٍ ۚ وَلَا يَحِلُّ لَهُنَّ أَن يَكْتُمْنَ مَا خَلَقَ اللَّهُ فِي أَرْحَامِهِنَّ إِن كُنَّ يُؤْمِنَّ بِاللَّهِ وَالْيَوْمِ الْآخِرِ ۚ وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَٰلِكَ إِنْ أَرَادُوا إِصْلَاحًا ۚ وَلَهُنَّ مِثْلُ الَّذِي عَلَيْهِنَّ بِالْمَعْرُوفِ ۚ وَلِلرِّجَالِ عَلَيْهِنَّ دَرَجَةٌ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ

Sahih International

Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have more right to take them back in this [period] if they want reconciliation. And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise.



Prophet warned us about not fulfilling the rights of the wife, he warned us about two groups of weak people, the orphan and the women.


The scholars have stated that if a man goes to his wife and he doesn’t have desire, then he also gets rewarded for it. The right of the wife with respect to going to bed with her is that he should beautify himself (within his abilities; same for her). Women have sexual desires just like men so they need to be satisfied as well.


This is a right of both the husband and the wife. The husband has to realize this right and try to fulfill it. He has to be aware of his obligations, just as he should be aware of his obligations of raising his children, such as setting an example, being there when the children need him etc.


The spouse should do their best to fulfill the needs of their spouse.


Why is the hadith of cursing by the angels specific to the wife and not to the husband?


None of the scholars have come to the conclusion that it means both the husband and the wife, even though just the wife is mentioned in the hadith.


An answer based on pop culture is that in general it is not the man who is going to turn down the sexual relationship or encounter/opportunity. It is easy for the man to be aroused and generally speaking he will not intentionally keep away from sexual relationship with his wife. We are aware that there are differences in sexual drive, but generally speaking it is the woman who would refrain from sexual relationship.


Footnote: There is a subculture that exists in many cultures, which led to a device known as chastity belt, in order to keep down the sexual drive of a woman, since they claim that women would not be able to control their sexual drive. There are no hadith or other scholarly discussions about this topic.


When you realized that something is a right of the husband/wife, then this tells us what the purpose of marriage is about. So this is part of what the marriage is all about. So within the relationship b/w the husband and wife, we have to make sure we do not do anything prohibited by the Shari’ah.


General principles of sexual intimacy


Protect the chastity of both husband & wife. What is allowed in sexual relations?


The basic ruling of all things is permissibility; but a better form is that beneficial things are permissible. If it looks harmful, then it should also be prohibited.


When it comes to sexual relations ‘urf might also have a lot of influence, such as permissibility of what is allowed between husband and wife.


What is permissible between husband & wife?


It is very important that they enjoy each other intimately, and what they want to do together is permissible as long as they protect themselves from immoral character or sexual deviancy or imitating non-Muslims or falling into what is clearly haram.


2013-05-05 Class Notes


It is our obligation to Allah swt to follow him in every aspect of our life. And it is important for us to seek the knowledge, and shyness is not a good quality if it prevents you from attaining this knowledge. There are two qualities that prevent you from gaining knowledge, shyness or arrogance.


It is also an obligation upon our sisters to gain this knowledge, Ayesha said that the blessed women are the women of Ansar, their shyness and ... did not prevent them from gaining knowledge. Umm Sulaym asked the Prophet, what should we do when we have wet dream, the prophet replied with his answer and it began with this phrase: Oh Messenger of Allah, Allah is not shy of conveying the truth.


When discussing this topic we have two cases. In case one, we have text related to the topic of particular issues. Here we have text that are authentic when discussing the issue. But in other cases there may be no authentic sources and are therefore subject to ijtihaad.


However a lot of the time the information is not correct information. For example, A sister asked in a class that in her country it says that marriages are made in heaven, is this based on any evidence? This is a Catholic concept, since they don’t believe in divorce at all, once you are married it is forever. So it is something foreign to Islam.  


Many of the scholars have said that the married couple are entitled to enjoy one another, and as a general principle the basis is permissibility.


What is allowed or not allowed is also based on the urf of the times and that is their general understanding of what is harmful or not to the relationship.


But sometimes there can be tensions between the two parties. One party wants to do something and the other party doesn’t. This is partly based on ignorance related to these principles. One contemporary scholar said you should think about the long-term implications of your actions towards your spouse.


Basic principles or issues about sexual intimacy


We will discuss the issues that have specific texts from the Sunnah, or from the scholars. We will discuss the texts and mention whether they are authentic or weak or fabricated.


Issue #1: Looking at each other’s private parts or nudity in front of each other in private


There are certain cultures where nudity even during sexual intercourse between the couple is not allowed and it based on the following hadith.


Hadith: if one of you approaches his wife, he should conceal himself and he should not be naked like wild donkeys. Definitely a weak hadith; the sheikh could not find a scholar who graded this hadith otherwise.


Most scholars would say there is no prohibition of the husband and wife and uncovered in front of one another. Some also base this on the hadith in which A’ishah described that she and the Prophet (SAWS) would make ghusl from the same container. This hadith is from Sahih Muslim. It’s authentic, but it’s not necessarily indicative.


So this hadith implies that they are nude together while making ghusl after sexual defilement, but it is not indicative of it.


It’s very clear there is nothing wrong from a shari’ah point of view. So being nude in private with each other, there is nothing wrong with that. Obviously when people get married there will be some shyness involved.


Footnote: It is preferable to cover yourself in front of the angels. There is nothing about how quickly should you perform the ablution, in response to the question about hurrying up to perform ghusl while you are nude.


Hadith saying angels do not enter a place where nakedness is present is not authentic.


Various madhab rulings about looking at spouse’s private parts


What about looking at one’s spouse’s private parts? Majority of scholars say it is permissible without any limitation.


The Hanafis and Hanbalis say as a matter of manners that it is preferred as a matter of adab (the sheikh says that they base this on textual evidence) to not look at the private parts.


Shafi’is say it is makruh. Shafi’i bases this on a hadith from A’ishah where she says she never looked at the private parts of the Prophet (SAWS), but Arna’oot and Albaani amongst others say it is weak.


The hadith is also found in Sunan ibn Majah.  Also graded here as da’if.


Issue #2 Speaking during the sexual act or while having sexual intercourse


Scholars have said there is no harm in it. There’s an Arabic term called al-ghanj (الغنج) about speaking during intercourse. Suyooti has a book about this topic. In that book, he notes that some of the old scholars or physicians said that this speech is from the enjoyment of the act.


There are a couple of fabricated hadith on this issue -- one of these hadith says that if you look at the private parts during intercourse or it will produce a blind child or speak a lot or you will produce a child that is mute. And a similar hadith about a child that is mute or stutters. Both of these hadith are fabricated.


These fabricated/weak ahadith might be based on some cultural practices or beliefs at the time.


There are be some cultural practices which state that you have to perform sexual intercourse while facing the Qiblah. Are there any evidences for this practice?  There are hadith about facing the Qiblah while defecating or urinating.


Ibn Abideen from Hanafi school, Ghazali from Shafi'i school and Quazamma from Hanbali school who say that it is makrooh to perform the sexual intercourse while facing the Qiblah.


Even the hadith about urinating about facing the Qiblah, that is only applicable when you are out in the open.


Footnote: In some madhabs, you position the dying person towards the Qiblah, they put his feet facing the Qiblah.


Issue #3: Sexual positions with the wife


We are discussing this topic since there are texts related to it. This is something that came up during the time of the Prophet (SAWS).


http://quran.com/2/223



Sahih International

Your wives are a place of sowing of seed for you, so come to your place of cultivation however you wish and put forth [righteousness] for yourselves. And fear Allah and know that you will meet Him. And give good tidings to the believers.


This verse of the Quran was sent down in relation to this issue. Husbands and wives are free to be in any position as long as the intercourse is in the woman’s private parts. Jews used to say that if you approach your wife from the behind, then the child that is born would be cross-eyed.


So the Arabs of Madinah would have relations in only one position, because of the influence of the Jews. But the Arabs of Makkah, a man from Makkah had relations with his wife in a way different from the people of Madinah, so she refused. And in response to this issue the above verse was revealed.


Some of the books of fiqh go into the discussion of various positions and which are preferred. There are no prohibitions about the various positions.


Number of scholars have mentioned that the position of the wife on the top is not preferred, but there are no medical facts that have any basis for this opinion. This was the opinion of ibn Qayyim. This was one of the opinions that were different between Ibn Taymiyyah and Ibn Qayyim. Ibn Qayyim had many such interesting opinions based on medical understanding of the time.


Allah swt says in the above Surah, what do the words wa qaddimu an fusikum. According to ibn Taymiyyah it means to say dhikr before sexual intercouse.


Dua before the act of sex: In the Name of Allah, keep the devil away from us and if this act results in a child, keep the devil away from the child.


http://sunnah.com/abudawud/12#116


Ibn ‘Abbas reported the Prophet () as saying “If anyone who means to have intercourse with his wife says “In the name of Allaah, O Allaah, keep us away from the devil and keep the devil away from what You hast provided us.” It will be ordained that no devil will ever harm the child born to them.


حَدَّثَنَا مُحَمَّدُ بْنُ عِيسَى، حَدَّثَنَا جَرِيرٌ، عَنْ مَنْصُورٍ، عَنْ سَالِمِ بْنِ أَبِي الْجَعْدِ، عَنْ كُرَيْبٍ، عَنِ ابْنِ عَبَّاسٍ، قَالَ قَالَ النَّبِيُّ صلى الله عليه وسلم ‏ "‏ لَوْ أَنَّ أَحَدَكُمْ إِذَا أَرَادَ أَنْ يَأْتِيَ أَهْلَهُ قَالَ بِسْمِ اللَّهِ اللَّهُمَّ جَنِّبْنَا الشَّيْطَانَ وَجَنِّبِ الشَّيْطَانَ مَا رَزَقْتَنَا ثُمَّ قُدِّرَ أَنْ يَكُونَ بَيْنَهُمَا وَلَدٌ فِي ذَلِكَ لَمْ يَضُرَّهُ شَيْطَانٌ أَبَدًا ‏"‏ ‏.‏


Is there any other dua after the sexual act? Ibn Masud mentions the following dua.


Dua after the sexual act: Allahumma la tajall al-shaytaana lanna naseeba.


Taqiuddeen Usmani says that the fact that you are mentioning the name of Allah during this time.... it shows your obedience to Allah swt even during this time. And it shows the person is cognizant of Allah during all of the times.


So should we consider the statement of Ibn Masud, a marfoo’ statement, meaning the source of the statement has to be from the Prophet, is this deserving to be made marfoo’? It could go either way.


Issue #4: Repeated acts


Is it necessary for the person to make ghusl between the sexual acts or can he perform repeated sexual acts without ghusl?


What is recommended to do is to make ablution (wudu’ not ghusl) based on hadith of the Prophet (SAWS). Dhaahiri opinion is that it is of course obligatory. But there are some hadith that indicate that the Prophet (SAWS) didn’t do wudu between intercourse.


Another hadith in Al-Haakim mentions that it gives one more energy.


So here we are making wudu while in the state of Janabah (sexual impurity). So this wudu has a very specific purpose of repeating the sexual act.


Issue #5: Sleeping while in the state of Janabah


It is Sunnah to make wudu before sleeping when in a state of janabah. But there are narrations that in other cases, he would just wash his private parts, and other times not do wudu. But it is preferred to make wudu.  This is for both the husband and wife.


Issue #6: Relations during menses and/or postpartum bleeding


All agree that it is prohibited to have sexual intercourse with your wife while she is menstruating. It is applied by qiyaas to post-partum bleeding.


Verse of from the Quran Surah Baqarah verse 222 discuss this issue about sexual relationship during menses.


http://quran.com/2/222


ويسألونك عن المحيض قل هو أذى فاعتزلوا النساء في المحيض ولا تقربوهن حتى يطهرن فإذا تطهرن فأتوهن من حيث أمركم الله إن الله يحب التوابين ويحب المتطهرين


Sahih International

And they ask you about menstruation. Say, "It is harm, so keep away from wives during menstruation. And do not approach them until they are pure. And when they have purified themselves, then come to them from where Allah has ordained for you. Indeed, Allah loves those who are constantly repentant and loves those who purify themselves."


Hadith: Whoever has sexual relations with a menstruating woman has disbelieved in what has been revealed to Muhammad.


Woman try to avoid in general when they are in their menses. All of the scholars agree that it is prohibited to have sexual relationship during this state.


Discussion about repentance for relationship during menses


However, if it is done, what actions should the individual do to make tawbah from that action? On this question, there is a difference of opinion as to what should be done.


If an individual does have intercourse while she is in her period, then he must give a dinar (at the end of the period half a dinar). This is the opinion of the Shafi’ees and the Hanafis??? They say that this is recommend act and not an obligation.


The Malikis say that there is no repentance for this sin, other than asking for forgiveness from Allah swt.


And then there is another opinion that paying dinar or half a dinar is obligatory.


What is the basis for dinar or half a dinar as repentance? It is based on the statement from Ibn Abbas that says this.


As a statement of the Prophet it is a weak narration, but as a statement of ibn Abbas it is authentic. So can we say that this hadith is marfoo’?


Imam Ahmad doesn’t take this hadith. It does not appear that there is a kaffarah -- not strong enough evidence.


Suppose a woman gets to the end of her menses but she has not made ghusl. There are three opinions:


1. Hanafi view: it is permissible as soon as the menses comes to an end.

2. Other three schools: It is permissible.

3. Thaahiri view: As long as she washes her private parts.


This is based on 2:222 in terms of yat-hurna and then ta-taharna. So it is important to purify oneself, but there is a potential linguistic difference.


For the Hanafis, they divide this into two. Hanafis say the first issue is the important one, the second one is the “lighter one.” The strongest opinion is the opinion #2.


2013-05-12 Class Notes


Discussion of major and minor sins related to the topic


Question that came up last time about menstruation and knowledge of that. The husband should generally believe the wife unless she is a known liar.


Also, follow up from last week: about intercourse during menstruation and kaffarah. Who should seek forgiveness? The man and the woman, or both? The man definitely has to, should the woman? If the woman was resisting, then no. But if she participated willingly, she must also make istighfaar.


Other beliefs in other cultures -- that the expiation is the same as that for having relations with your wife during Ramadan (either freeing a slave, or fast two consecutive months, or to feed 60 poor people). But there is no evidence for this whatsoever.


What constitutes a major sin?

Those sins that are considered a major sin are ones that Allah has stated a severe punishment, or a statement or cursed the people who did that act. So it is based on the punishment for that action.


Expiation of sin for having sexual relationship during menses


Sexual relations during menses according to Hanafis and Shafi’is it is a major sin, but the Hanbalis say it is not a major sin.


Hadith that says man ata ha’idan aw fi duburiha or ata kaahinan faqad kafara bima unzil alaa Muhammad.


Hadith: If someone has relationship with menstruating woman, or has sodomy or goes to a fortune teller, he has disbelieved in what has been revealed to Muhammad.


Faqad kafara does not mean that you are out of the fold of Islam. There are major and minor sins. Major sins might threaten your Iman as whole.


However many earlier scholars rejected this hadith, but contemporary scholars accept this hadith such as al Albaani. But al Arnaout says it is possibly Hassan.


Sh Jamaal concludes that this hadith might not be authentic. And having sexual relationship during menses is a minor sin. It is forbidden to have relationship during menses is a well established concept.


However, if someone rejects the concept that having intercourse during menses is a sin then this is a type of kufr that will take you out of Islam,


Ignorance of the religion is so bad, then it is possible that someone who doesn’t know about this prohibition then it is not an act of kufr. The responsibility of conveying this knowledge falls first of all on the scholars, it is also the responsibility of the parents to raise their children properly.


Limits of sexual relationships during menses


What is the limits of the relationship that the husband and wife can have while the woman is on her menses. Clearly sexual intercourse is prohibited, but what can you do?


You are allowed to touch or caress or fondle any part of the human body, since it is allowed to touch each other even if this leads to climax then that is OK. Everything above navel and below the knees is fair play agreed upon, even during the case of menstruating women, you are allowed to hug and fondle even during the menses. Women menstruating in Islam are very different compared to say Judaism.


Opinions about limits of sexual relationship during menses


First opinion: Amongst Hanafis, Malikis and Shafi’s say that you are not allowed to touch any parts between the navel and the knees and it should be covered by a garment. So anything that is covered between navel and the knees is off limits.


Second opinion is that everything is ok except sexual intercourse. Hanbalis, Mohd Al Hassan from the Hanafis and Imam Nawawi amongst shafiis and Ibn Hazm.


Third opinion: first opinion, but it is recommended not to do it, rather than tahreem.


Fourth opinion: if the person can control himself, that’s OK.


Evidences for opinions about limits of sexual relationship during menses


Hadith: A’aishah said that the Prophet (SAWS)  would tell his wife to cover up between the navel and knee, but none of you has the control that the Prophet (SAWS) has.


Surah Baqarah verse 222 says


ويسألونك عن المحيض قل هو أذى فاعتزلوا النساء في المحيض ولا تقربوهن حتى يطهرن فإذا تطهرن فأتوهن من حيث أمركم الله إن الله يحب التوابين ويحب المتطهرين

Sahih International

And they ask you about menstruation. Say, "It is harm, so keep away from wives during menstruation. And do not approach them until they are pure. And when they have purified themselves, then come to them from where Allah has ordained for you. Indeed, Allah loves those who are constantly repentant and loves those who purify themselves."



Name for menstruating woman is ha’id and the condition is known as muhaad. But the word used in the above verse is maheed. Maheed is the noun for the place of menses. It refers to women’s private parts.


One understanding of this verse is that it refers to the menses. .... any other meaning would not make sense since the later part of the verse refers to ...... But there is even more evidence about the revelation of this verse.


Among the Jews, a menstruating woman was to keep away from the household. The companions asked about it to the Prophet and then this verse was revealed.


Hadith: And then the Prophet said that you might do everything except nikaah. (Edit: After the above verse was revealed).


In Arabic language, Nikaah could mean getting married or sexual intercourse. In the above hadith it means sexual intercourse.


When the news of this hadith reached the Jews they said, that this man does not want to leave anything that we have except that he overwrote it.


When the Prophet heard this news about the Jews opinion, he became very upset, since they were directly challenging the command of Allah swt.


This is strong evidence for the second opinion -- that you may do anything for the wives on her menses except sexual intercourse.


An action of the Prophet (SAWS) can not take precedence over the sayings of the Prophet (SAWS). So this direct statement of the Prophet (SAWS) will take precedence over the conclusion from the statement of ‘Aa’ishah.


Also another evidence about the limits during menses is that the Prophet (SAWS) said that he would tell them to cover their private parts with an izhaar at the beginning of the menses when the flow was heaviest.


Amara an ta’tazira fee fawri haydatiha -- the word fawri here means in the beginning of the menses or the time when the flow is the heaviest. So it may be more about reducing the blood.


Hadith in Sunan Abu Dawud and in which the Prophet (SAWS) was specifically asked. And the Prophet (SAWS) said what is above the izar. But this hadith is weak (even if Albani says it is correct). All of them have weak chains and some problems with them. Scholars of the past rejected his hadith as weak.


The more contemporary scholars seem to be more lenient in grading of hadith. One of those examples where it is clear it is not authentic.


Footnote: The followers of the second opinion who say anything is allowed except sexual intercourse, say that the izar is equivalent to modern day feminine hygiene products used to limit the flow of blood during the menses. Whereas the followers of the first opinion say that anything between the navel and the knees is off limits.


Fourth opinion was that he was the one most capable of controlling his desires, it’s not an independent opinion, it is more like a recommendation.


If a husband cannot control himself then he should stay away from any actions that would lead to him losing control.


Conclusion: There is no disagreement that sexual relationship is not allowed during menses. However you  are allowed to enjoy each other’s companionship during the menses and stay away from sexual intercourse.



Al-Mustahaadah - Special case of feminine bleeding


Women who have prolonged bleeding due to an infection or some other cause. So it is possible for a woman to be bleeding almost all the time. Anyone who has bleeding above and beyond what is considered the menses. This is coming from a vein, this is not the same thing as menses. So if someone’s wife has this condition, is it permitted to have sexual relations?


Opinions about al Mustahaadah


One opinion is yes that you are allowed to have sexual relationship during this condition. Opinion of hanafis, malikis and shafi’is. However, the well-known opinion in the Hanbali school is that it is prohibited unless there is a fear that the husband or wife will commit zina. A third opinion is that if the woman can distinguish between the types of bleeding then it is, but if not, then it is not permissible. One of the opinions in the Shafi’i madhab.


The cause of bleeding might be due to cramps or other reasons. And if they can determine the cause of the bleeding then they can rule out menses and continue to pray and have sexual relationships.


Evidences about al Mustahaadah


The only evidence in the Quran only touches upon menses and not on this special case of bleeding. But the shariah distinguishes between .... and .......


There were a number of women during the time of the Prophet who suffered from this condition and their husbands used to have sexual relationship with them during this time and there is no evidence that they were not allowed to do so.


There’s no clear evidence other than falling into the haram.


So if she can distinguish, and she is not on her menses, then this is a difficult case and you have to be careful. But most of the causes for this bleeding can be determined and if it is not easy to determine, then we pray that it is a temporary condition and to relieve her from this suffering.


Confusions about a particular deviant sexual practice


Now we move to a topic that has some texts or opinions about a particular type of sexual relationship. The only reason we are discussing this topic is to ensure completeness and because there are writings about this practice. This question comes up over and over again, it is related to the question of sodomy. Throughout our history, there are people arguing for allowing this act. And you would find opinions from scholars that wrote against this act.


Even in the US, there was a group (Al-Ansaar)  that argued for allowing this act. They were famous for their white clothing. And they wrote that the Sunnis are wrong about their opinion.


There are some reasons why there is some confusion on this issue. Vast majority of scholars say this act is prohibited; but it is narrated from some scholars (Imam Malik, Ibn Umar, and others) that it is permissible.


Part of the difference of opinion relates to the  verse about how a man is allowed to approach his wife  حرث.


نساؤكم حرث لكم فأتوا حرثكم أنى شئتم وقدموا لأنفسكم واتقوا الله واعلموا أنكم ملاقوه وبشر المؤمنين


Sahih International

Your wives are a place of sowing of seed for you, so come to your place of cultivation however you wish and put forth [righteousness] for yourselves. And fear Allah and know that you will meet Him. And give good tidings to the believers.


How to understand the words, place to sow your seed or cultivate?


Ibn Abbas explains that you have children from your wife and you can come to your wife in any way that you feel, as long as it is through the vagina and not through any other place. Since obviously you will not be able to produce anything if you practice sodomy.


At least one of the narrations for asbaab un nuzool was that if you entered a woman from behind (but vaginally) then the child would be cross-eyed. So the Ansaar followed the view. So the Qur’an clarified that any form of sexual position was acceptable.


Evidences about deviant sexual practice


The scholars who say that sodomy is prohibited quote a number of hadith. One is the hadith we quoted before from Sunan Abu Dawud about menstruating women. But as we said, it is a weak hadith. They quote a number of other hadith: the Prophet (SAWS) was asked about this and said it is a minor form of sodomy (Edit: Here the sodomy refers to the act of the People of Lot which is also referred to as sodomy (an act between men)). This hadith is also some difference of opinion in the soundness of the hadith and most likely it is a statement of the sahabi Abdullah b Umr b Aas.


Another hadith from Musnad Ahmad states: the one who enters a woman from behind, then Allah does not look at him, and this hadith is Hassan. Hadith from Musnad Ahmad the Prophet (SAWS) said: the one who commits sodomy with his wife is accursed.


These last couple of hadith seem to be at least Hassan.


So what has led to this kind of opening they go back to the narration attributed to Ibn Umar, and an opinion attributed to Imam Malik and they also point to the fact, that concerning these various hadith As-Suyooti says none of these hadith are authentic.


Reasons for confusion about deviant sexual practice


The people who claim this act is permissible is because they argue that none of the hadith are authentic about this hadith, and coupled with it the statement of Ibn Umar and Malik.


Bukhari includes the narration of Ibn Umar, but leaves off the last word, which is what we will discuss next time in detail. The goal is to have a completely satisfactory to conclusion, wiping away these misconceptions. Our goal is to close the door completely on this misconception and move on.


2013-05-19 Class Notes


Disclaimer: The reason why we go in depth in the matters in these classes is that we know what are the limits. Some of the topics that were chosen were based on the questions received on various Islamic websites. The quantity of number of questions about a topic, shows the relevance of the topic. Since these matters are very adult in nature, we will try to be as cautious as possible and not use graphic language.


The question of sodomy and deviant sexual behaviour keeps on coming up.


Ibn Al Jawzi and ibn Abbas????? have written about this topic. And unfortunately for some of us, even if we do not want to think about it, these issues keep on coming. It is a fitnah (a test) for us.


There are some issues that we need to talk about. Those who argue for the permissibility there are some things that they rely on, and if you are not familiar with all of the arguments/points, then it is a kind of fitnah.


Discussion about the logical arguments for allowing these deviant acts


Those who argue for these sexual deviant acts base it on a logical argument.


Surah Al Baqarah verse 223 http://quran.com/2/223


نساؤكم حرث لكم فأتوا حرثكم أنى شئتم وقدموا لأنفسكم واتقوا الله واعلموا أنكم ملاقوه وبشر المؤمنين

Sahih International

Your wives are a place of sowing of seed for you, so come to your place of cultivation however you wish and put forth [righteousness] for yourselves. And fear Allah and know that you will meet Him. And give good tidings to the believers.


There was a debate between Imam Shafi’i and Muhammad Al-Shaibani -- this was when Shafi’i was in Iraq. This topic came up and Shafi’i asked Shaibani on what basis do you say it is Haram? Then Shaibani quoted the above verse.


Al Shaibani said, that this place is the female sexual organ (vagina), and you can have sex in any position that you want to.


Shafi’i then asked: if someone has relations with his wife and then fondle each other such that the man has climax outside the female sexual organ is not permitted? (Footnote: The majority of scholars are of the opinion that reaching climax outside of the vagina is acceptable.) So if that is not haram, what is your proof that you can not have anal intercourse, since climax can happen outside of the vagina and that this is sufficient?


This gives the impression that imam Shafi’i’s view is that sodomy is permissible. But Shafi’i has not been attributed with this opinion -- he wrote a number of books in Egypt and then in at least 6 of them, he stated that it was Haram. This may have his old opinion in Iraq.


Some Shafi’i scholars also say that this debate did not occur. They say that this debate is falsehood. They say that this opinion is very abhorrent and hence they say this debate did not occur.


ibn ????  who is also a Shafi’i scholar, says that there is no basis to say that this debate did not occur.


It is very clear from Shafi’is various writings that he considers the sodomy to be unlawful act.


Anna shi’tum in the verse above -- some scholars argue that anna means how and when and from which direction, but does not specify the act itself.


One of the strongest arguments is the narrations from Ibn Umar -- Al-Tabarani records from Al-Mu’jam Al-Awsat, Ibn Umar said that this was a permission to have anal intercourse. This narration from Ibn Umar has come through many chains in many books and it seems that this is an authentic narration.


In Tafsir al-Tabari about Surah Baqarah verse 223, he says that you can have vaginal intercourse in any form is the most common interpretation, but then he says there is a second opinion from Ibn Umar. A third opinion is that it allows for doing ‘azl (reaching climax outside of the vagina).


We have other narrations from Ibn Umar -- someone asked him about it, and Ibn Umar responded asked him “Does any Muslim do such an act? (in other words, the act is not permissible).


Nafi’, the Mawla of Ibn Umar (Footnote: The mawla or ex-slave would be considered to have the most knowledge about his master), and someone asked him, do you know what the people are narrating from you from Ibn Umar? Nafi said no. So the man asking the question are saying on your authority from Ibn Umar that it is permissible to commit sodomy with your wife. And Nafi’ responded that these people are lying on my authority. Nafi’ then said, let me explain to you what Ibn Umar said, Ibn Umar explained that during the time of the Prophet (SAWS) that someone had vaginal intercourse from behind, and he went to the Prophet (SAWS), and the verse was revealed.


The above narration of Nafi’ clearly shows that he denied that ibn Umar sanctioned sodomy. We will discuss this narration in detail later on.


This opinion (Edit: that sodomy is allowed) has also been attributed to Imam Malik, from Kitaab Al-Sirr -- “the book of secrets” -- the fatwas he didn’t want publicly known. According to Qurtubi, this book is not by Imam Malik. It comes from Imam Malik only through Shi’a sources.


Daraqutni reports that this was something spread about Imam Malik during his lifetime, and Imam Malik denied it.


Another argument used is a quote from Suyooti -- al-dawr al-ma’thoor fee tafseer al-manthoor. Suyooti adds almost nothing from himself -- just quoting hadith relevant to each ayah. After presenting the hadith, he says: all of them are weak and none of them are authentic -- this would seem to suggest that the act is not haram.


Where does the burden of proof lie? Should it be on those who say that sodomy is permissible or those who say that sodomy is haraam?


Footnote: Christians consider sex is only for procreation, so any semen that falls outside the vagina is a sin. But muslim scholars say that sex also serves the purpose of enjoyment and azl is permissible.


Suyooti wrote a commentary called tadreeb al rawi -- one of the best books on Uloom al Hadith -- and what’s interesting with Suyooti and one of his weaknesses is that he would elevate the hadith to Hasan when it is clearly not justified. More generally, his grading of hadith is not that reliable. He compiled a collection called Al-Jaami’ Al-Sagheer -- contains about 12,000 hadith. He arranged the hadith in alphabetical order; then he would put what book it was found in, and then a sahabi, then he would put a haa (to indicate Hasan) or a saad (to indicate Sahih) or daad (to indicate Daeef).


Scholars after him wrote commentaries on this work of Suyooti. Albaani put out a book called Sahih Al-Jami Al Sagheer and Daeef Al-Jami Al Sagheer.


Unfortunately this statement in Al-Dawr Al-Manthoor, in one version says -- qaal al-haafith -- then he’s referring to Ibn Hajr. But if he says al-huffath -- then the reading is different.


Ibn Hajr and others (including Albani and Shu’aib al-Arna’oot) -- all of them are considered Hasan.


So those who argue for its permissibility mention the above arguments and then try to invalidate the hadith that say this act is not permissible.


Discussion of statement of Ibn Umar as reported by Imam Bukhari


The statement of ibn Umar can be found in Sahih Bukhari chapter 6 pages 51-52. The way that statement of Ibn Umar was attributed by Bukhari is one of the mysteries that is difficult to explain.


Bukhari breaks down the statement into two parts. The proponents of sodomy on the Internet are attacking Bukhari and say that he is hiding something.


Bukhari describes that Ibn Umar was reciting the Quran Surah Baqarah verse 223 ..... and then he says that Ibn Umar explained the reason for its revelation and then he continues the recitation of the Quran.


http://sunnah.com/urn/42050


And the Bukhari says, that Ibn Umar says, one should approach his wife in .... (with the ellipsis) and then Bukhari has a footnote. The footnote says that he was not aware of what Ibn Umar said.


Tafsir Tabari includes the complete statement of ibn Umar.


Sh studied ten commentaries of Sahih Bukhari but did not find any discussion about this missing statement of Ibn Umar. Imam Bukhari taught Sahih to many students. The version we have today derives from ~10-13 students. In none of those transmissions did they finish the sentence (with the expected -- “her anus”).


Footnote: Imam Bukhari should have been aware of the statement of Ibn Umar, but we don't know why he left it out. Some say that he left it out because he did not approve of it.


Al-Humairi wrote a book called al-jaami’ -- and he said the verse was supposed to put in “al-farj” So


Footnote: If Imam Bukhari did not approve of this act, then he would have left out the complete statement of Ibn Umar. It is a mystery as to why he left out the object of the preposition, why did he use the ellipsis.


It is important to be aware of this mystery and Imam Bukhari has left himself open to an attack. We don’t know why he left out the word? It is a little bit strange.


Our response is that Imam Bukhari is a human being and even if he did this mistake, it should not detract from his overall work.


Ibn Qayyim and Shinqeeti think that those who say that the ahadith are either incorrect or misunderstood -- “min dubur” = “from behind” and “fee dubur” means “in the anus.”


But because of the sources etc, we should not judge scholars too harshly; and if someone expresses a different view, they view it as abhorrent.


Ibn Qayyim also discusses the harms of this action (note: Ibn Qayyim sometimes goes overboard -- e.g. saying it darkens the person’s face), including :


- When the husband does this kind of act, then perhaps it is not as fulfilling for the woman.


- This part of the body was not meant for this kind of this action since there is no natural lubricant, e.g. it is one of the primary ways for transmitting STDs).


- This is why the WHO has said proper protection is required in these kind of scenarios. It is known that HIV spreads the fastest in regions where sodomy is practiced.


Disturbing fatwas related to this deviant act


Seems to be a common belief that if a man does this act with his wife, they need to be divorced and remarried. But there is no evidence of this.


Disturbing fatwa online: A woman’s husband is absolutely convinced that sodomy is permissible and not haram, and she does not like it.


Uthaimeen said: that it is a great sin, and there are many texts about that. And the important point is that you should not allow your husband to do this act to the best of your ability -- my advice to wives is that you must absolutely prevent this act, even if it means going to your family’s house. If you leave your house under those circumstances, then you are fleeing from ma3siyah.


Any time there is a difference of opinion, you need to see whether it is a weak or strong difference of opinion. If it is a weak difference then it is not sufficient as a source of action. Otherwise you are going to follow the mistakes of the scholars.



2013-05-26 Class Notes


Disclaimer: The reason why we go in depth in the matters in these classes is that we know what are the limits. Some of the topics that were chosen were based on the questions received on various Islamic websites. The quantity of number of questions about a topic, shows the relevance of the topic. Since these matters are very adult in nature, we will try to be as cautious as possible and not use graphic language.


What are the scholarly opinions on oral sex?


Muslims constitute many different cultures. You also find many different opinions from scholars. We will discuss all of them to get a sound opinion.


Oral sex is not something new. It was known in the Hindu culture and some other cultures. Even in some of the earlier books of fiqh there is reference to something of this nature.


Opinion: Scholars who say that it is haraam


Among the contemporary scholars who have been asked this question, the following say that it is haraam.


The permanent standing committee in Saudi Arabia, a woman asked that her husband ask her to do it and she does not like it.


They said it is of the matters that is not sound, and it has been introduced by external sources, while our practices were sound on the fitrah -- and we rule that it is not permissible. The basis is that the private part of the man and woman are not going to clean and therefore are not to be licked etc.


Albani says it is not permissible, and he says it is an act where you are resembling dogs and other animals. There are hadith that say that you should not mimic animals.


Sheikh Saallih Luhaidan is of the opinion that it is impermissible -- it says that you are imitating animals when they lick each other. And it is not permissible for a human to being this kind of act. Also no question that during the process of oral sex, the man and woman produce sexual fluids (al-mady) and all scholars consider this to be najis or impure. In the same way we would not expect a human being to consume urine, then we would not expect a human to consume another fluid that is also impure.


Nothing of this nature has been passed on from the early generations.  We know from A’isha (ra) that they would kiss or lick the tongue.  What we are discussing has never been described as being part of the Muslim culture.


This act is part of the influence of the West. Sh Jamaal doesn’t know of any leading scholar who considers this action permissible.


Others of this opinion include Muhammad Sayyid Al-Disuqi, Othman Omran. They emphasize the fact that it involves consuming/touching impurities and they say it is something not from our culture.


Second opinion: Something to be disliked


Not enough evidence to say it is haram, but they say it is something disliked and to be avoided. Abdullah b Jibreen -- no question that this action is something distasteful and you would not expect someone who is intelligent to do this -- then quotes the hadith about the private parts (which is weak). So if looking at it is not considered good, what about putting it in one’s mouth. However, this does not reach the point of being sinful/prohibited because tahreem has to be based on strong evidence. So he says we can’t say it is Haram.


When people discuss oral sex, they do not discuss the types of acts. Unfortunately we have to be explicit here. In the early books of fiqh, they don't object to the kissing of the private parts. But when we say oral sex, it is different than kissing or touching.


So if the husband kisses his wife’s private parts, and you know the area is clean, then there is nothing wrong with that. This is the opinion of many scholars, including kissing, licking.


However, if you are talking about oral sex, is the actual act of completing the sexual act, where the private part is manipulated by the other person’s mouth until the person reaches sexual orgasm. We have to distinguish between this act and just the act of touching the private part.


Yusuf Al-Qaradawi says: when it gets to the point of orgasm, then it is disliked. He said I can not say it is haram, because I can not find any definitive evidence that it is haram. If the wife likes it and she gets pleasure from it, then we should not say it is permissible.


Sh Abdurrahman Al-Barak says it is not haram. Because we do not find any evidence prohibiting it, but it seems to go beyond the good manners of a Muslim should have.


Islam-online has a fatwa that says that this should be considered disliked -- the private part of the man may not be clean. He says it is best to stay away from that act even though it is not haram.


Mohammad Aly Farkous -- says the practice is makrooh for the following reasons:


1. The tongue is the place of thikr.

2. We should stay away from things that are impure.


Mahar al Qarani says that this is a makrooh act and there is no doubt that madhi will come out and the wife will consume it. Allah swt considers it to be filthy. Things that are filthy and unclean, a muslim should keep away from it and not put in their mouths.


Maher Al-Otaibi says: scholars have confirmed that it is acceptable to kiss the private parts, but going beyond that are becoming like animals and disbelievers.


Opinion: Scholars who say it is permissible


Islamweb has a fatwa that talks about the fact that amongst Maliki said that there is no harm in looking at the private parts, you can lick it with your tongue, and other scholars who say the same thing. He says it is permissible for a husband to enjoy every part of his wife as long as he avoids anal intercourse.


Muhammad Said Ramadan Al-Booti says it is the right of the spouses to enjoy each other in any way. What this means is that each person can enjoy their spouse in any way they like.


Ali Gomaa says that this act is permissible.


A lot of them don't seem to be concerned with madhi at all.


Dr Ahmad Al-Kurdi says that there is no harm in oral sex with the condition that there is taharah, and so long as the mady doesn’t appear. He distinguishes it from the act of oral sexual intercourse.


Need to distinguish between doing this as an act of foreplay, then it is acceptable, but before the appearance of the fluids, there doesn’t seem to be any problem.


Al Ustad al .... says as long as they avoid sexual intercourse during the menses and anal sexual intercourse, everything is permissible as long as you don't cause harm to your spouse and your spouse does not object to it.


Khalid Rifa’i says that enjoying one another is anything so long as it doesn’t involve anal intercourse and menses, and otherwise any kind of activity is permissible. In particular about oral sex, it is permissible for the following reasons: it falls under the general reasoning of istimtaa or permissibility. If sexual intercourse is allowed, then any other act is allow.


Scholars who say it is permissible say that we have texts that clearly prohibit some types of acts, however there are no explicit texts about this act.


Scholars with this opinion say, that taking this impurity is not good, but it is not haram.


Many scholars who say it is permissible also insist that the husband does not have the right to force his wife to do it. They say it is not the same as refusing sexual intercouse. They say that in reality some people are not going to like it, if the woman finds it reprehensible she should not be forced to do it. They say that this is not from the right of the husband.


Discussion about no explicit rulings about a matter


If you don’t have any clear text then you look at the benefit. The principle that the basic ruling of beneficial things is permissibility, but it does not allow permissibility if there is harm involved, then the ruling changes to that of prohibition.


So if you are saying that there is no evidence of prohibition is to ask the question: is there some benefit/harm associated with it.


The positive aspects of oral sex: it can be very enjoyable. It reduces the risk of miscarriage.


The negative aspects of it are the following:


Anytime you have sexual contact, you have mucus membrane coming in contact with the sexual organ. Even normal sexual intercourse could be a source of sexually transmitted disease. Oral sex transmits many sexual diseases, it worsens due to open sores on your mouth, such as bleeding gums, etc.


There is also a link of oral sex with oral cancer and also head and neck cancer.  On the positive side, it reduces the risk of miscarriage if the wife takes the sperm into her body.


One of the biggest problems is that this act is disproportionately enjoyed by men and disliked by women. If a man likes this kind of act, that kind be a problem. Men don't have the same possibility of multiple orgasms, and if he achieves his sexual pleasure, then the woman is left out from achieving her full sexual pleasure.


Some scholars say that it is an imitation of the act of kuffar.


Scholars have emphasized is that the areas have to be clean.


We have completed the discussion about oral sex, all of the opinions have been presented to you.


Q&A


This topic is taboo in Muslim land and it was unknown in the earlier times. However this kind of knowledge is now growing. The relationship between husband and wife is very delicate. If an act is not part of the culture and if the husband demands it, then the wife would be offended by it. This aspect should be taken into consideration.


Mady is impure for both sexes. Many scholars even consider sperm to be impure.


Conclusions about oral sex


The biggest issue with it is that of impurity. Even if the act is permissible, but the culture does not sanction it, then there would be problems. This act as a foreplay there is no doubt that it is permissible. But the appearance of impurity would make the act makrooh. We are distinguishing between foreplay and the full sexual orgasm.


Other ways of enhancing the sexual experience


Human beings over the ages have come up with many different ways to enhance the sexual experience. We will discuss some of them for the sake of completeness.


Watching pornography for the purpose of sexual excitement: all scholars agree that it is Haram.


Use of lotions as a sexual stimulant: No evidence of it being impermissible. Also some reference when you go back to fiqh, there are mentions of things that are good to use. There might be conditions when the naturally occurring sexual lubricant is missing and the act is very painful, so if the lotion is permissible as a stimulant, then it is also permissible when it is necessary.


Viagra: The lack of vigor can be medically treated and one such treatment is viagra. If the man cannot satisfy his wife, and if Viagra is helpful, then there is no question about permissibility. (Footnote: Sh is not in favor of pharmaceuticals at all, but if the husband cannot satisfy his wife, then he could use it.)


Viagra for recreational use: It has not been found to be effective.


Aphrodisiacs: If you study herbal medicines, sooner or later you will come to discussion about improving sexual performance. This is left as an exercise to the students.



2013-06-02 Class Notes


Edit: This is the last class for the quarter.


The topics for this class were chosen based upon the number of questions that were asked in different forums about sexual relationships.


Enhancing the sexual experience


Anything that is harmful should be avoided. Anything that is najaas or impure should also be avoided.


There is hadith of the Prophet, he said that you should use udd al hindi. It was translated as Indian essence. It is Udd or Aloe’s wood... You should use this since it has seven cures. ... only one of the cures is mentioned in the hadith and it is related to ??????


In the commentary by ibn Hajr, among the benefits of this type of udd, he said that it increases desire and .... However this fact is not mentioned in the hadith.


Using aphrodisiac to increase sexual experience, you should be careful that it is not harmful. If you have healthy sex drive, then you should try to avoid it and not try to increase the sexual drive, since it could lead to haraam in order to satisfy it.


Sexual toys are used to increase and enhance the sexual experience. However they are sold at places or websites that you do not want to enter.


Ibn Taymiyyah said that women used to have these types of things available to them, however the availability does not mean that they are permissible.


Scholars have said it is not permissible, others have said it is not recommended. The question is on what basis are these types of things permissible? From the fiqh perspective, where would be the prohibition?


All scholars agree that a husband is allowed to fondle his wife in any way, including penetration using fingers. However if lotions and aphrodisiacs are allowed, then what is the basis for the prohibition of these sexual toys.


A question was asked by a person who suffered from premature ejaculation, am I allowed to use these sexual toys in order to allow sexual orgasm for my wife? The answer was that this is not allowed.


There might be some reasons such as the husband might become lazy or cause harm to his wife??? or it might cause harm to the relationship between the husband and wife, and because of these reasons you could say that such sexual toys might not be permissible.


Fantasizing


The brain is the most important sexual organ of the body. Is it permissible to fantasize about someone else during the sexual act? The brain is the key to the sexual experience. This question has been asked about in the past, this is not something new.


http://quran.com/17/36


ولا تقف ما ليس لك به علم إن السمع والبصر والفؤاد كل أولئك كان عنه مسئولا

Sahih International

And do not pursue that of which you have no knowledge. Indeed, the hearing, the sight and the heart - about all those [one] will be questioned.


Allah swt mentions that you will be asked about your eyes, your hearing, each one of them has their zina. There are different levels of zina, there is zina of the eyes, ....


According to most of the scholars this type of fantasizing is clearly forbidden, since the person you are fantasizing about is clearly haraam to you.


Footnote: In the Maliki school, if you fantasize that a glass of water is wine, then that glass of water is forbidden to you.


Footnote: An interesting question that was asked, can you fantasize about on of your other wives?


There are also other ways of fantasizing, known as role playing. Even though you are doing this with your wife, it is still essentially the same thing as above, since you are fantasizing that you are doing this act with somebody else. And since fantasizing is haraam, this type of role playing is also haraam.


Fetishes and Perversions


Fetishes means that you excited by something abnormal. A common fetish is the arousal due to feet and being in contact with the feet in order to achieve arousal. If it is something restricted like that, then there is not a problem. But it could get to a point that it is not good for the individual or to their relationship, and it would be better for the person to get help to overcome this fetish.


Perversions are not allowed in general, e.g. bondage/flogging, e.g. inflicting pain on your partner. From an Islamic perspective, this does not seem to be consistent with Islam, especially laa darara walaa daraar.


Footnote: This practice is known as Sadism and Masochism. It would be better if you avoid the acronym S&M since this is the acronym for this practice.


Cross-dressing is also discouraged, the Prophet (SAWS) prohibited men dressing as women and vice versa.


Filming/Recording the act


There is a trend nowadays in the society that a husband who wishes to cause harm to his wife, records the act and puts it on porn sites. There is a discussion in the California legislature to do something about it.


This is definitely not a good act and we will leave it at that.


Sexual relationships during pregnancy


Sexual intercourse during pregnancy is permitted, unless there is a medical reason or a risk.


Sexual relationships during lactation


According to the strongest opinion, if during the sexual act and while you are fondling your wife and she happens to be lactating and if you ingest it, then there is no harm. The relationship between a wife and husband is much more stronger and is not subject to the laws of breastfeeding.  However the husband should not fondle the breasts in order to gain access to the milk, it is reserved for the child????


How affectionate can couples be in public?


You should not be a fitna to others. If there are singles present in the gathering, then it would become difficult for them.


If you are in a very conservative culture and you are a young person, what could be an act between the couple that might excite you? It depends upon the culture, so something as simple as holding hands in public might be fitna to them.


What about kissing in public? Is this related to Urf or is it an issue of becoming sensitized to it so much that you do not care about it any longer.


As far as we know, there is nothing definitive or concrete in the sunnah about being affectionate in public. Should this be related to Urf? Yes it is related to Urf but leaning towards caution.


There is a narration of Umar that he kissed his wife in public, but shaikh has not been able to find it.


According to many scholars, it is not permissible for a man to touch his wife or kiss her in the presence of others. You have to keep it secret between the husband and wife, you cannot expose it.


Can you be affectionate in front of your own children?


It depends upon the age of the children. If it is a younger child and does not understand it, then you should be able to be affectionate in front of them.


However when they get older, you are supposed to set an example to them. There is a fatwa that husband and wife cannot even touch each other, but this seems to be extreme. You have to show affection and love to each other, you have to be moderate. But being separate and cold to one another, could send a different message to your children.


Muslim cultures are very conservative about this topic and the western culture is very liberal about it. There is nothing specific about the limits, as set by the Prophet, but there are no examples of this kind of public behavior from the Prophet either.


Q&A


Footnote: This class is not about everything you wanted to know about sex, but we discussed some of the questions that have repeatedly come up in various forums that are related to fiqh


Q: Using food to derive sexual pleasure


A: Some said that this is showing disrespect to food. Some say it is forbidden, some say it is makrooh. One of the conservative scholars did not see any harm in it, if both husband and wife agree to it.


Phone sex


A person calls his spouse and talks in suggestive manner to get excited. Sometimes it is not just talking but also seeing one another.


If a husband and wife talk to each other in a manner that is alluring, there is no problem with it, but there could be issues related to what it leads to, since the couple are distant from each other. If the act leads to masturbation, the majority of scholars say that masturbation is Haram, and therefore the couple should avoid it.


Concluding thoughts about sexual relationships between husband and wife


Very clear that it is part of the marriage relationship that the husband and wife enjoy each other sexually. They are free to enjoy each other, it will also increase the closeness between them, if they are happy in this part of their life, they may be more forgiving at other times.


People who grow up in the West know a lot about this topic. But they should experience one another and how they can enjoy one another. There are parts of the body that are considered to arouse sexual feeling.


The areas of heightened sexual feeling include the ear, back of the neck, behind the knees, toes, inner thighs, etc. In exploring these areas, they will be doing something permissible and they will be doing something for which they will get ajr.


A man asked abu Hanifah about a man who stroked his wife’s vagina and a woman who stroked her husband’s penis, was there anything wrong with that? Abu Hanifah said no, in fact I think they will be rewarded for that.


Hadith : A man would be rewarded for having sexual relationship with his wife. Since if he had done so in a haraam way, then he would be punished for it, so if he does it in a halaal way, then he should be rewarded for it.


These topics are discussed in the fiqh books, because they are aspects of our life and that even in this aspect of our life we are doing so in a manner that is pleasing to Allah swt and are also pleasing one another.


Sh asks for forgiveness if he has offended anyone while mentioning this topic. He has tried to be as careful as possible when mentioning this topic that is essential for all of us to know.


One thing to emphasize is that it is very important to fulfill the needs of women, especially after the man reaches his climax. If the wife has not reached her climax, then the man has to work on it consciously. This extra effort is something the man has to do. Especially bad is that the man immediately goes to do ghusl and that he has to clean himself immediately, since it can have a negative impact on the wife, about how she feels etc.


One of the reasons why we discussed this topic in detail is because we can feel comfortable about how we have sexual relationship with our wives. This was part of the goal of this class.


Next quarter we will discuss the last common right shared between the husband and wife which is the to have children and then move to rights of the husband which includes some controversial topics.

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