Islamic Classes‎ > ‎2013-Summer‎ > ‎

Fiqh of Marriage

Fiqh of Marriage: Common rights between husband and wife

2013 Summer Session (August 11 to October 13 2013)

Sundays 3:35 - 4:50 PM PDT

Class taught by Shaikh Jamaal Zarabozo


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


Grading:

Final exam at the discretion of the advisor


Basic Outline of the Quarter

I. Birth Control

II. The Rights of the Husband

a. Who has the right to have children


2013-08-11 Class Notes


Rights of the husband have turned into many controversial topics today. We will have to discuss topics such as whether wife has to serve the husband, and other controversial topics such as marital rape, husband striking the wife, etc. We will have to discuss them openly.


We will also discuss birth control. Is having children right of the husband, wife, common right, right of Allah? What does it mean to be right of Allah, do we have no right to intervene? We will answer these questions in the class.


What is the sharia view of having children?


It is fard kifayah, an obligation on the community as a whole. The deen has to continue and it cannot continue without us having children. So it is definitely fard kifayah.


Allah swt refers to children as one of the bounties that is provided to human beings.


In Surah Nahl verse 72


Sahih International

And Allah has made for you from yourselves mates and has made for you from your mates sons and grandchildren and has provided for you from the good things. Then in falsehood do they believe and in the favor of Allah they disbelieve?


Surah Baqarah verse 187, wherein Allah swt discusses the sexual relationships during the night time of Ramadan, which was originally forbidden. It is made permissible to you, since they are clothing for you and you are clothing for them, and now seek relationship with them to seek what Allah swt has decreed for you. Scholars say that we should seek is to have children.


Prophet said marry loving child bearing women ....... it is graded sahih li ghairihi by a number of scholars.


Hadith in Sahih Bukhari. When we come back from a journey, we should not take them with surprise, you should send a messenger, in order for them to ....


Prophet made dua to have pious wives and children. Scholars say that prophets are examples for us, and since they are making dua for having wives and children, then we should also seek to have wives and children.


One of the major goals of the shariah is that of progeny.


Based on these evidences we can say that it is highly encouraged to have children.


Do these evidences point to an obligation? These texts are strong evidence, it looks like it is even obligatory to have children.


In an earlier class, we discussed some scholars not getting married because they were worried of not fulfilling the rights of the wife. Can you say that this points to choose not to have children?


During earlier times, it was a financial help to the families to have children, especially male children in some societies were considered to be bounties for the families.


We have other texts or evidences about having children.


There is a text about the practice of castration. This was a form of punishment for rapists in earlier times. Does this practice of castration equate to an extreme form of birth control. Is this similar to the practice of vasectomy?


There is a clear hadith from the Prophet that prohibited castration. Why would somebody during the time of the Prophet would want to get castrated? The people who could not afford to get married and wanted to prevent themselves falling into haraam.


The hadith says that the one who castrates and one who seeks to castrate is not from among us. Those who seeked to castrate themselves were singles.


In Islam we do not have the concept of monks or monasticism.


When scholars discuss birth control, they discuss two types, permanent or temporary birth control means. The permanent birth control are medically reversible but are difficult or harmful. Some of them are vasectomy, tubular ligation, hysterectomy, etc. Majority of the scholars say that it is prohibited to use permanent birth control since they equate it to castration.


Permanent birth controls go against the goal of the shariah to have progeny but it is not the same as castration.


There was a study of Muslim women in Tanzania, they found out that the women still practice permanent birth control even though the scholars say it is not permissible.


There is clear evidence in the Quran and Sunnah to have children and establish your progeny. This indicates that birth control would be discouraged. So we have to find some other evidence about temporary forms of birth control.


There was a practice known as Al Azal which is Coitus Interrupt, where the sexual act is interrupted and the sperm does not enter the woman’s body. But this is not effective form of birth control, since some sperm does leak out or the man is unable to control his body.


This practice of Azal was practiced during the time of the Prophet.


The opinion of some Shafie scholars that it is permissible to practice Azal, they say that you can do this form of birth control even without consulting your wife.


Statement of Jabr that we used to practice Azal during the time that the Quran was being revealed. He says that if this practice was not permissible then, there would be a verse revealed to prohibit it. Also the Prophet would have shown his displeasure if this act was not permissible.


Hadith narrated by ........  a man asked can we do this act, the prophet said that if Allah had willed then the child would be born then nothing can prevent it, meaning that this is not an effective form of birth control.

http://sunnah.com/urn/1250890


Abu Said al Khudri said that the jews used to say that Azal is a minor form of infanticide or jahiliyyah. http://sunnah.com/urn/671360


Hadith from Bukhari which says ....


There are some hadith that clearly indicate that Azal is permissible and that it was practiced during the time of the Prophet. There are statements of sahaba that it is permissible.


Opinion of ibn Hazm, ibn Habban, Abdullah Lassan, Hasan al Basri, Muhammad ibn Saeed, that this act is not permissible.


There is a statement of ibn Umar that if I knew my son practising it, then I would punish him.


Imam Muslim has two narrations, one says that Azal is permissible, and another narration that it is not permissible.


You have to be aware of how Imam Muslim recorded narrations. He would record weaker narrations at the end of the section. This practice of Imam Muslim is not known or recognized by many scholars. He was trying to highlight the weaknesses. However there is no contradiction in these two statements recorded by Imam Muslim, since it could be a form of hidden shirk????????


Ibn Hazm says that the hadith implying permissibility is earlier and hadith stating that it is forbidden came later and he based it on the basic principle that everything is permissible unless explicitly stated. However if you are going to claim abrogation, you need to provide more stronger evidence.


A third opinion is that Azal is permissible only with the consent of the free wife, a wife who is not a slave.


Umar ibn Khattab said that prophet prohibited the act of Azal with a free wife except with her permission. Unfortunately, Sh Jamaal did not find any scholars who did not rate this hadith weak. This hadith is weak and it cannot be used as evidence.



Since the hadith that is used as permissible uses very vague words, they could imply that Azal is not effective.


Azal is at the level of dislike or makrooh .......   This was also the conclusion of Imam Nawawi, Al Albani, Al Jawzi.


An act of very minor form of makrooh can be raised to the level of permissibility based on certain circumstances.


Al Azal is a form of birth control. Condom is also a form of birth control which is also not very effective. So the ruling for Al Azal could also be applied to condoms, that it is at the level of dislike.


So let us discuss under what conditions would this practice become permissible?


Could you use fear of poverty to justify using condoms as a form of birth control?

If you say that you would commit infanticide then this is not permissible as mentioned in the verse of the Quran that do not use fear of poverty to commit infanticide.


Worry about financial burden is used to justify performing birth control.


Ibn Hazr stated three reasons why somebody might resort to Al Azal. One of them would be to avoid having a large number of dependents.


Lack of time and energy to raise children.


HW: Prove from the Shariah perspective whether you would give preference to quality of your progeny or the quantity of your progeny.


Also think of other reasons why temporary forms of birth control such as condoms could become permissible instead of being disliked.


2013-08-18 Class Notes


Reasons why couples could resort to ‘Azl according to some scholars


According to most scholars there is slight level of dislike for resorting to birth control (‘azl in particular). Everything else being held constant, there is no need for a Muslim couple to keep themselves from having children.


If there is no reason, then they should accept what Allah has decreed for them. But because it means that if it is slightly disliked, it can become permissible under some circumstances.



In Ihya Uloom Al-Deen, Imam Ghazali lists some reasons why couple could resort to ‘Azl:


1. To preserve the beauty of the woman


Beauty used to emphasize a full-figure which differs from the societal standard of beauty in contemporary times in the West. But in any case, some people want to maintain their figure and Ghazali has no issue with it.


2. Fear of having too many children. Imam Ghazali says it is better to put your trust in Allah and that He provides for all his creatures. But there is a big difference between killing your child in order to not share your wealth with your children and looking at your situation and saying it’s not appropriate.


3. Avoidance of having a female child.



Ibn Hajr also mentioned a number reasons:


1. To avoid having a number of dependents.


2. To avoid risks from a young child from a pregnancy

(Note: a weak hadith that points that if a woman gets pregnant while nursing the child will be weak, but it’s not correct. There are some signs that avoiding pregnancy during the 2 year nursing period and so he considers it acceptable).



Hanafi opinion about resorting to ‘Azl (repeated through a number of Hanafi fiqh books)


They have a special emphasis on “corrupt times.” (فساد الزمان)



Modern scholars opinion about resorting to ‘Azl


These days with the lack of extended families as formerly existed, people mention spacing pregnancies to give time for the woman to recover.


Also the ability to bring up the children properly -- not just financial resources, but also somewhere like a Western environment -- it’s going to put lots of burden and pressure, but providing for them from a religious perspective and making sure there’s the proper time to do the proper tarbiya for the children.


What is the right balance between quality versus quantity of your progeny? And what is your evidence from the Shariah?


Classroom discussion about resorting to ‘Azl:

1. A strong believer is better than a weak believer, there is no doubt about it.

2. You need a larger number of believers in order to have a few good ones.

3. Consider the case of 10 children versus 1 child in this society. Would you be able to raise the 10 children in the same way as you could raise 1 child?

4. We are not discussing any haraam in order to avoid having children, ‘azl is not a guarantee that you will not have children, so given that premise, would you resort to it in order to have fewer children? Should this be one of the ideas one should consider? Can we move the practice of ‘azl from makrooh to mustahab?

5. Before couples get married, they ask each other how many children would they like to have. Should they take this question into consideration?


http://sunnah.com/urn/1319370


حَدَّثَنَا يَعْقُوبُ بْنُ حُمَيْدِ بْنِ كَاسِبٍ، حَدَّثَنَا عَبْدُ اللَّهِ بْنُ الْحَارِثِ الْمَخْزُومِيُّ، عَنْ طَلْحَةَ، عَنْ عَطَاءٍ، عَنْ أَبِي هُرَيْرَةَ، قَالَ قَالَ رَسُولُ اللَّهِ ـ صلى الله عليه وسلم ـ ‏ "‏ انْكِحُوا فَإِنِّي مُكَاثِرٌ بِكُمْ ‏"‏ ‏.‏


Prophet said, “Marry, for I will boast of your great numbers.”(Sahih)



One modern scholar: if you look at the context of the hadith, then if you are getting married, then you are fulfilling the hadith.


He said that there is another version of the hadith:


http://sunnah.com/nasai/26/32


أَخْبَرَنَا عَبْدُ الرَّحْمَنِ بْنُ خَالِدٍ، قَالَ حَدَّثَنَا يَزِيدُ بْنُ هَارُونَ، قَالَ أَنْبَأَنَا الْمُسْتَلِمُ بْنُ سَعِيدٍ، عَنْ مَنْصُورِ بْنِ زَاذَانَ، عَنْ مُعَاوِيَةَ بْنِ قُرَّةَ، عَنْ مَعْقِلِ بْنِ يَسَارٍ، قَالَ جَاءَ رَجُلٌ إِلَى رَسُولِ اللَّهِ صلى الله عليه وسلم فَقَالَ إِنِّي أَصَبْتُ امْرَأَةً ذَاتَ حَسَبٍ وَمَنْصِبٍ إِلاَّ أَنَّهَا لاَ تَلِدُ أَفَأَتَزَوَّجُهَا فَنَهَاهُ ثُمَّ أَتَاهُ الثَّانِيَةَ فَنَهَاهُ ثُمَّ أَتَاهُ الثَّالِثَةَ فَنَهَاهُ فَقَالَ ‏ "‏ تَزَوَّجُوا الْوَلُودَ الْوَدُودَ فَإِنِّي مُكَاثِرٌ بِكُمْ ‏"‏ ‏.‏


It was narrated that Ma'qil bin Yasar said: "A man came to the Messenger of Allah and said: 'I have found a woman who is from a good family and of good status, but she does not bear children, should I marry her?' He told him not to. Then he came to him a second time and he told him not to (marry her). Then he came to him a third time and he told him not to (marry her), then he said: 'Marry the one who is fertile and loving, for I will boast of your great numbers.'"


This is under the chapter of things that are unliked, we can see that even the earlier scholars such as Nasai listed it as actions that are disliked.


Thus if you have one if you will be meeting the requirements of the hadith. And you can not imagine that the Prophet (SAWS) is going to boast about numbers if those people do not have deen and aqeedah.


A man can marry more than one wife and maybe in this case the sahabah did not have means to marry more than one wife and that is the reason for this advice that it is better for him to marry somebody who is loving and childbearing.


The famous hadith of the Prophet that other nations would come upon you as the people are coming to feast upon you, they asked would it be because we will be in small numbers, the Prophet said that you will be in large numbers but you will be like the sea foam that is pushed around. Allah swt will take fear of Muslims from their hearts.


http://sunnah.com/abudawud/39/7


حَدَّثَنَا عَبْدُ الرَّحْمَنِ بْنُ إِبْرَاهِيمَ الدِّمَشْقِيُّ، حَدَّثَنَا بِشْرُ بْنُ بَكْرٍ، حَدَّثَنَا ابْنُ جَابِرٍ، حَدَّثَنِي أَبُو عَبْدِ السَّلاَمِ، عَنْ ثَوْبَانَ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏"‏ يُوشِكُ الأُمَمُ أَنْ تَدَاعَى عَلَيْكُمْ كَمَا تَدَاعَى الأَكَلَةُ إِلَى قَصْعَتِهَا ‏"‏ ‏.‏ فَقَالَ قَائِلٌ وَمِنْ قِلَّةٍ نَحْنُ يَوْمَئِذٍ قَالَ ‏"‏ بَلْ أَنْتُمْ يَوْمَئِذٍ كَثِيرٌ وَلَكِنَّكُمْ غُثَاءٌ كَغُثَاءِ السَّيْلِ وَلَيَنْزِعَنَّ اللَّهُ مِنْ صُدُورِ عَدُوِّكُمُ الْمَهَابَةَ مِنْكُمْ وَلَيَقْذِفَنَّ اللَّهُ فِي قُلُوبِكُمُ الْوَهَنَ ‏"‏ ‏.‏ فَقَالَ قَائِلٌ يَا رَسُولَ اللَّهِ وَمَا الْوَهَنُ قَالَ ‏"‏ حُبُّ الدُّنْيَا وَكَرَاهِيَةُ الْمَوْتِ ‏"‏ ‏.‏


The Prophet (SAWS) said: The people will soon summon one another to attack you as people when eating invite others to share their dish. Someone asked: Will that be because of our small numbers at that time? He replied: No, you will be numerous at that time: but you will be scum and rubbish like that carried down by a torrent, and Allah will take fear of you from the breasts of your enemy and last enervation into your hearts. Someone asked: What is wahn (enervation). Messenger of Allah (): He replied: Love of the world and dislike of death.


Here we can see that we will be in large numbers but our quality would be poor. So this is another evidence to consider in how many children should we have and what is their quality.


Throughout our history, the ulema had a different view than our culture. Many times our ulema are saying one thing and the ummah are doing another. The point being that our scholars have considered valid reasons why we could resort to Azl in order to limit the number of children that a couple could have.


It is a heavy responsibility on the parents, they have to protect their children from hellfire. If you think that it is not your responsibility to raise them properly, then there is no doubt that you are committing a sin, this is regardless of how many children you have.



Can ‘Azl ever be raised to the level of mustahab?


Scenario: A person has three children and he uses that as an excuse to get involved in interest in order to provide a larger home for the family. So would you say that it would be waajib for the person to resort to ‘azl in order to not get into a scenario described above?


No matter how difficult your financial situation, this is not an excuse for you to resort to haraam. The trials and tribulations of this dunya does not allow you to resort to haraam.


The Hanafis have an approach focusing on this question, e.g. that they should use birth control in daar al harb.



Can overpopulation or concerns about lack of resources be a valid reason for ‘Azl?


Footnote: In response to a question about concerns about food supply for the large growth in human population. We have to be careful about this question, because we know that Allah swt has provided rizq for all of mankind. We know that a person could die because of starvation or other causes, but we should have no concerns about lack of food resources as a reason to not have children.


People have been talking about overpopulation since the time of Malthus that the world will run out of food (d. 1834H). We definitely have enough resources to feed everyone in the world, but it’s not being distributed well.


One of the goals of the shariah is that of nasab, that Muslims should continue to exist.


This is one of the problems in the Western world or Japan, where the population growth rate is less than 2.4 which leads to less than sustainable rate of growth.


According to some western scholars, education and economy are two of the reasons why there is a declining birth rate. Women are delaying when they get married and they are no longer in their prime child bearing age when they get married and also economic reasons leads woman to get married later etc.


Also in modern urban societies, children are considered a burden to the family, as compared to agrarian societies where children were considered a bounty. This is another reason for the drop in birth rates.


Footnote: Birth of a child should not be considered as a factor to keep the marriage contract alive, the birth of a child should be based on pure intentions towards all parties. Also forcing a marriage to remain intact because of children is problematic to all parties, because if there is no love and respect between the couple, it will have adverse psychological effect on the children, they  are aware of all the fights that take place and you should strive to have a positive upbringing for the children.


Permissible forms of birth control (‘azl)


Are there some forms of birth control which are preferred?


We have to consider birth control practices that are very similar to ‘azl, they ensure that sperm does not come into contact with the egg and it should not have any side effects.


Birth control methods that are similar to Azl should be OK, e.g. condom, vaginal barrier.


Others like the pill/patch/injection: block the production of the eggs. E.g. birth control pill, prevents the ovaries from releasing the eggs or thickens the cervical mucus to prevent semen from getting to the eggs. Works very differently to Azl, but effectively it’s the same. One question is side effects: birth control helps to prevent ovarian cancer, and prevents ovarian cysts. Can be side ......


There are many ways for keeping the sperm and the egg to get together, you have to study them in light of other factors such as side effects, etc


However, birth control methods that work after the egg and sperm get together have issues, e.g. morning after pill, RU-486, IUDs. They have an effect after the sperm and egg get together.


Question: Who gets the final say on having children?



2013-08-25 Class Notes


We will finish some of the left over questions about birth control and various types of acceptable birth control methods.


The forms of birth control that are similar to ‘Azl that keep the semen and egg from getting together are preferred and the ruling for these types of birth control will have the same ruling as Al ‘Azl. The ruling for ‘Azl is that there is slight dislike for this act.


Since the sperm and the egg do not get together, from the point of view of creation of a human being, there is no issue at all, since there is no possibility of creating a human.


Once the sperm and egg get together and fertilize, should the ruling about birth control methods that occur after sperm and egg get together be different?


The ruling for condoms and IUDs are different, because the forms of contraception similar to Azl prevent fertilization, whereas IUDs work after fertilization.


Killing your children is a major sin and ‘Azl is not similar to killing your children. ‘Azl is slightly disliked and killing your children is a major sin.


Hadith describes the three stages of the birth of a human being: Nutfah, Alaqah and Mudhgah.


Many scholars have researched the hadith and many claim it is a scientific miracle of the Prophet. The prevailing Aristotelian understanding about birth of a human being was ... they did not describe the various stages as the modern biology describes it today.


Keith Moore, a professor of biology has a book about stages of the fetus and correlates it with various hadith.The title of the book is The Developing Human: Clinically Oriented Embryology.


«


In general in Christianity, ensoulment occurs at conception. This is very different from Muslims who believe that ensoulment occurs later (either


[Adding diagram]









Any kind of abortion that occurs after 120 days is very serious, and the only situation is where the life of the mother is at risk due to the pregnancy. The mother is going to be given preference of the fetus.


The preference is given to mother, since her life has already been established, she has dependents etc.


Once ensoulment takes place, if you kill the fetus, it is equivalent to killing a human being. But before the ensoulment takes place, does it have the same status as a human being? According to our ulema, the fetus before ensoulment does not have the same status as fetus after ensoulment.


However there is a major problem with the hadith, since there is disagreement among the scholars about when does the ensoulment take place.


One wording says, that the nutfah is for forty days, then alaqah is for forty days and mudhghah is also for forty days and then the angel is sent ...... You could argue that it is 40 + 40 + 40 days for the ensoulment to take place.


However there is another wording which could be read as, the angel is sent after 40 or 42 days after fertilization of the egg. Here the meaning is that the ensoulment takes place after 40 days. The other reading says that it takes place after 120 days, the difference is of 80 days which is a considerable period of time.


There is no doubt that killing a fetus after ensoulment is that same as killing a human being.


The hadith recorded by Nawawi has a mistake in it, he added the word nutfah in the hadith.


This is also confirmed by modern science matching the 42


The problems are with reconciling the two readings one with 120 days and one with 40-42 days. The nutfah stage is still fluid, the mudhghah stage occurs after 28 days according to modern science. So we know that all of these stages occur before 120 days.


Footnote: We have conflicting hadith and we also have hadith that is not clear whether it is 40 days or 120 days. From just the point of view, we can say that 40-42 days hadith is more stronger. And after that we can evaluate other sources of information that we have such as the confirmation of the various stages of fetus and when they occur from science. From this point of view, we can say that the 120 days reading of the hadith is not strong. Hypothetically speaking, if we did not have hadith about 40-42 days and we only had 120 days, then we would have to evaluate what science is saying about the stages of the fetus and try to reconcile it but we could not use it to overrule the hadith.


Everyone agrees that after ensoulment, it is haram to perform an abortion. So the question that we need to answer is how to treat the period between conception and ensoulment, if somebody aborts the fetus what should be the ruling?


On this question, the scholars differ about it:


Opinion #1: One view is that it is forbidden to abort the embryo during all of the stages.


This is the opinion of the majority of Malikis, ibn Hazm, some Hanafis, some shafiee, some Hanbalis and as well as Ibn Rajab and Ibn Taymiyah. The evidence they use is the verse --- do not kill nafs.


http://quran/17/33


ولا تقتلوا النفس التي حرم الله إلا بالحق ومن قتل مظلوما فقد جعلنا لوليه سلطانا فلا يسرف في القتل إنه كان منصورا


And do not kill the soul which Allah has forbidden, except by right. And whoever is killed unjustly - We have given his heir authority, but let him not exceed limits in [the matter of] taking life. Indeed, he has been supported [by the law].


Then they make the argument that if it is forbidden to kill a soul, then it is forbidden to take any steps against the source/basis of that soul.


Sarakhsi the Hanafi scholar adds to this argument by saying that when you are in the state of Ihram, you can not destroy an egg because it has the potential to become a chicken.


Ibn Taymiyah says that it is al-wa’d al-khafiyy (hidden infanticide). They also argue from a verse in the Qur’an where Allah


http://quran.com/77/20-21


ألم نخلقكم من ماء مهين -  فجعلناه في قرار مكين

Did We not create you from a liquid disdained? And We placed it in a firm lodging.


And thus it is a separate stage.


This opinion is very similar to the current christian thinking about abortion that it is forbidden after conception.


Ghazali is from the Shafi scholar who also says that first stage of creation occurs when egg and the sperm get together and any violation of it, is also a violation of human being???


Ghazali has another statement that is contradictory. It says that the embryo before ensoulment is a physical matter and there is nothing in the shariah that prohibits you from expelling it from your body.



Opinion #2: Some say it is reprehensible or makrooh during the nutfah stage and haram after that stage.


This has an impact on whether you can use IUD pills to abort before ensoulment.


This is the majority Shafi opinion and a minority opinion among ...



Opinion #3: Some say that it is permissible in all three stages - nutfah, alaqah and mudhghah


Majority of the Hanafis and also the opinion of ....


Hanafis say it is not a creation until the ensoulment takes place



Opinion #4: Some say it is permissible during nutfah and alaqah stages and forbidden from mudhghah on.



Opinion #5: Some say it is permissible during nutfah stage and forbidden after that stage.



The evidence for opinions #2 - #5 is not very strong. They argue that since it is the beginning of the process, it is not yet the thing for which the ruling applies. This is a qaedah that they apply.



Conclusions


Any tampering of the fetus is at least makrooh since ‘Azl is slightly disliked.



What about the case where a woman already had multiple children in successive years and she has some excuse for not having additional children?


Thought provoking reasons for what could be some valid excuses ....




Sh Jamaal’s opinion is that ensoulment takes place after 40-42 days and abortion that takes place during this time is not the same as abortion after 40-42 days.


If someone has reason for taking the morning after pill or IUD for the same purpose as ‘Azl or something similar, then it is difficult to prove it is haraam. To prove something is haraam you need more conclusive evidence, but as you get closer to 40-42 days after conception, then it becomes easier to prove that it is haraam.


It is still better to avoid, since it is a gray area, in order to avoid all of the disagreements about these types of birth control methods.


It is better to use methods that are similar to ‘Azl as a form of birth control.



What about diyaa for using these types (morning after pill, IUD) of birth control methods?

....


Abortion after ensoulment is a major sin.



2013-09-01 Class Notes


The issue of when to have children, or how much space between children, or when you consider to have enough children is an important question, specifically who has the right to decide it between the couple.


There are four opinions about it, first opinion is that it is the right of the husband, the second opinion is that it is the right of the wife, the third opinion is that it is a common right and the fourth opinion is that it is taken out of their hand and it is the right of Allah swt or the society.


If we consider it to be right of the husband, then he does not have to consult with his wife when he resorts to al Azl. However if the wife seeks birth control then she has to seek the permission of the husband.


Some claim it is the opinion of Imam Shafiee, it is definitely the opinion of Imam Ghazali.


What is the proof that this is the right of the husband?


The use the hadith about prostration of the husband by the wife ....... they claim based on this principle that the husband has the right to determine when to have children.


Imam Ghazali used another evidence that the man has the right to get married. However the woman also has the right to get married. And we know that there have been cases where some notable women who did not get married.


Some claim that since he is the position of the head of the household, this is his right.


Allah swt talks about the obligations of the man to provide provision and clothing for the mother. Surah Al Baqarah verse 233.


The key in the verse is ala mawdudi la ????? which indicates it is the child of the father. The construct of the verse is unique and interesting, and based on the laam of the verse indicates ikhtisaas and it is the responsibility of the father.


Imam Abu Hanifa said in his famous work, the child is the right of the father and not of the wife. Some attributed this statement to Imam Shafiee, but it is possible that he had a different opinion about it.


Footnote: In the past the question of not ever having children was not an issue. But now this is becoming an important question. There is no doubt that if the husband or the wife have no intention of ever having children, they should consult with each other before getting married, so that there are no surprises later on. In earlier times, the woman could either ask for change in husband’s behavior or ask for a divorce if the husband refuses to have children.


Those who say that is the right of the wife is not attributed to anyone in particular. It is a view. Most say that it is the shared right of the mother and the father.


In many fatwas and book of fiqh states that if a man is married to a free woman, it is not allowed for the man to commit al azl without the permission of the wife. They base it on the following evidences, the woman has the right to sexual climax and she also has the right to have children. This opinion about having the right to have children is mentioned by a number of Hanafi scholars and they mean it is right along with the husband to have children.


It is mentioned in the book by Al Qudamah.... he says al Azl is a kind of dharar or harm to her and you cannot perform it without her permission.


The Kuwaiti encyclopedia of fiqh says that majority of scholar say that husband cannot perform al azl without the permission of the wife, however the Hanafis say that the husband can perform al azl without the permission of the wife.


A vast majority of the scholars say that the right to have children is a common right between the husband and wife, the notable exception would be Imam Ghazali.


So if the husband cannot perform al Azl without his wife’s permission, this implies that the wife has the right to have children.


We can conclude that this is shared or common right between the couple according to modern scholars as well as earlier scholars.


Those who claim that it is the right of the society or the right of Allah swt, say that the right of the society trumps the right of the couple. If the society demands that they must have children, then the couple should not resort to Al Azl.


According to ibn Hazm and ibn Habban??? this demand of the society is enforced all of the time and according to them all forms of birth control whether temporary or permanent is haraam.


They claim it is the maslaaha of the society as the whole and it takes precedence over the right of the couple.


Can you consider right to have children a fard kifayah? Yes because if everybody in the society decides not to have children, it would have serious ramifications to the survival of the ummah.


When we say that this is a shared right, then one party cannot unilaterally take away this right. So if the wife says that she wants to have children, then the husband cannot unilaterally perform al azl.


Edit: Wife has the right to veto the decision by her husband to not have children or vice versa????


Since this is a shared right and if there is a conflict between the husband and wife, then who has the right? The party who wants to have children has the upper hand.


Head of the household does not mean that you have the right to take away other people’s rights. It implies that the head of the household has to ensure that everybody in his household have their rights fulfilled.


Scenario: A woman spent two years breastfeeding her newborn. And the husband decides to have another child. But the woman needs time before having another child. Whose right has precedence?


The party who wants to have child now has precedence, assuming there are no pressing health concerns etc



Rights of the husband


Some of the rights of the husband have become controversial, probably because of the feminist movement. When we studied the rights of the wife, none of the rights were considered


The following were mentioned by the students:


(Edit: Please do not read too much into it, since some of them will be disproven by Sh when we study the actual rights of the husband.)


1. Right to have more than one wife

2. Divorce

3. Obeyed / serve

3a. Right to good food

3b. He can do whatever he wants

4. Take decisions for their kids

5. Spend time away from wife (me-time)

6. Have her stay at home

7. Have wife look good

8. Learn any subject

9. Take care of his parents

10. To discipline her if necessary

11. Right to spend money as he wishes

12. Right to sexual intercourse on demand

13. To have a beard

14. To follow opinion he says is strongest

15. To be head of the household

16.

17. Right to spy on her

18. Control who is in .... house

19. Who can be her friends



2013-09-08 Class Notes


Rights of the husband (continued...)


Still continuing with the classroom discussions and soliciting feedback. Marriage is not just about rights. The rights are given by the shariah, you can always give up your rights.


Next quarter we will look at the rights that are considered controversial from the human rights perspective.


Discussion of right to have a beard


This is an obligation on the individual and it is from the right of Allah swt. Prophet said, that there is no obedience in the acts of disobedience to Allah.


This is not an option and it does not play any role. Unfortunately many times, parents insist to their children to not grow a beard. So in this case there is no question of obedience to the parents in defiance of obedience to Allah swt.


But what if the wife objects to the style of the beard? Can the wife ask the husband to trim his beard?


Fatwa from islamqa.com (http://islamqa.info/en/141289), wife thinks her husband’s beard is untidy, if she asks him to remove it, then is she sinful? If she insists that he remove his beard, then she is sinful.


Shortening the beard is permissible, so can the wife ask her husband to shorten it?


The islamqa.com website is good, there are knowledgeable people, however the fuqaha of islamqa has a modern hanbali slant.


Some scholars say that trimming the beard at all is haram. This is the opinion of many of the scholars of Saudi Arabia.


So when islamqa says that she cannot ask her husband to shorten or trim it, then their view is based on the above opinion. However is this the strongest opinion?


But there is a narration in Sunan Al-Tirmidhi that the Prophet would trim both the width and length of his beard, but this is weak narration. In another narration recorded in Al-Baihaqi, the Prophet ordered a man with unkempt beard to trim his beard and his hair, but it contains a weakness.


Thus there is no narration where the Prophet (SAWS) trimmed his beard. The issue that some of the statement that the Prophet (SAWS) made can be understood to mean “leave it.” E.g. one of the narrations mentions إعفاء اللحية -- but there are narrations e.g. from Ibn Umar that it would be as long as a fist. This might be one of the issues where there is a difference of opinion; and there are two opinions: either totally untrimmed, or allowed to grow big.


Scenario: What if the husband is of the opinion that the beard should be left untrimmed, and the wife is of the opinion that it is permissible to trim the beard. There is one act and both of the opinions cannot be followed.


Earlier we had stated that the woman is free to follow her madhab as long as it is not harming the husband. The husband would like to please his wife, but he feels that he has no right to trim the beard.


Scenario: Suppose both the husband and the wife follow the weak opinion that the beard is mustahabb and not wajib. And the wife can’t stand facial hair.


Scenario: We know that long hair is from the custom and practice of the Prophet and the sahabah, however there have been no hadith mentioning the virtues of long hair. And let us say that the husband is of the opinion to follow the sunnah of long hair. And the wife is of that opinion that it is not a sunnah????. Can she ask the husband to give up the right to have long hair?


Husband has to beautify himself for his wife and beauty is in the eye of the beholder, so what if she thinks that she does not like the look. What if the wife demands that the husband lose weight? Some are metabolically challenged to lose weight.


Does she have the right to ask something that is unreasonable, or put the other party in risk, or ask him to do something that is haraam.


Right to have beard is just like the right to pray etc.


Right to spy on wife


Some men justify that she is my wife and I have the right to spy on her. Some have gone to the extreme to place listening devices. While others spy on emails and private conversations.


Allah swt says in the Quran, avoid lot of suspicion, some suspicion is ....


http://quran.com/49/12


يا أيها الذين آمنوا اجتنبوا كثيرا من الظن إن بعض الظن إثم ولا تجسسوا ولا يغتب بعضكم بعضا أيحب أحدكم أن يأكل لحم أخيه ميتا فكرهتموه واتقوا الله إن الله تواب رحيم

Sahih International

O you who have believed, avoid much [negative] assumption. Indeed, some assumption is sin. And do not spy or backbite each other. Would one of you like to eat the flesh of his brother when dead? You would detest it. And fear Allah ; indeed, Allah is Accepting of repentance and Merciful.


http://sunnah.com/bukhari/85/2


حَدَّثَنَا مُوسَى بْنُ إِسْمَاعِيلَ، حَدَّثَنَا وُهَيْبٌ، حَدَّثَنَا ابْنُ طَاوُسٍ، عَنْ أَبِيهِ، عَنْ أَبِي هُرَيْرَةَ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ "‏ إِيَّاكُمْ وَالظَّنَّ فَإِنَّ الظَّنَّ أَكْذَبُ الْحَدِيثِ، وَلاَ تَحَسَّسُوا، وَلاَ تَجَسَّسُوا، وَلاَ تَبَاغَضُوا، وَلاَ تَدَابَرُوا، وَكُونُوا عِبَادَ اللَّهِ إِخْوَانًا ‏"‏‏.‏


Allah's Messenger (SAWS) said, 'Beware of suspicion, for it is the worst of false tales and don't look for the other's faults and don't spy and don't hate each other, and don't desert (cut your relations with) one another O Allah's slaves, be brothers!"


What is dann (ظن)? Al Dann has many meanings, it is any kind of conjecture.


We do not need absolute certainty to act upon something, when we have preponderance of evidence, we are allowed to act.


Dann is baseless and it can harm the other individual involved. It is accusation in your mind. There is nothing to justify your action.


Tahassasu means you are going behind people’s back to gain for your own personal benefit...


Prophet has warned us about uncovering other people’s private affairs.


Hadith:


http://sunnah.com/abudawud/43/108



حَدَّثَنَا عُثْمَانُ بْنُ أَبِي شَيْبَةَ، حَدَّثَنَا الأَسْوَدُ بْنُ عَامِرٍ، حَدَّثَنَا أَبُو بَكْرِ بْنُ عَيَّاشٍ، عَنِ الأَعْمَشِ، عَنْ سَعِيدِ بْنِ عَبْدِ اللَّهِ بْنِ جُرَيْجٍ، عَنْ أَبِي بَرْزَةَ الأَسْلَمِيِّ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ "‏ يَا مَعْشَرَ مَنْ آمَنَ بِلِسَانِهِ وَلَمْ يَدْخُلِ الإِيمَانُ قَلْبَهُ لاَ تَغْتَابُوا الْمُسْلِمِينَ وَلاَ تَتَّبِعُوا عَوْرَاتِهِمْ فَإِنَّهُ مَنِ اتَّبَعَ عَوْرَاتِهِمْ يَتَّبِعِ اللَّهُ عَوْرَتَهُ وَمَنْ يَتَّبِعِ اللَّهُ عَوْرَتَهُ يَفْضَحْهُ فِي بَيْتِهِ ‏"‏ ‏.‏


The Prophet (SAWS) said: O community of people, who believed by their tongue, and belief did not enter their hearts, do not back-bite Muslims, and do not search for their faults, for if anyone searches for their faults, Allah will search for his fault, and if Allah searches for the fault of anyone, He disgraces him in his house.


Based on this, scholars have concluded that spying is a major sin. Therefore if someone says by virtue of being my wife, I have the right to spy on her; what is the evidence for takhsees of this principle? Many scholars say the opposite is clearly true.


The Prophet (SAWS) said that when you are away from your wife, you should send a messenger to your wife, you should not take her by surprise, because you might see something displeasing.


There should be trust and husnul thann, especially those that you have additional rights with respect to.


People think that this is a form of defending the honor of the family -- gheerah. There is gheerah beloved to Allah, and gheerah detested by Allah. The one detested by Allah is the one with no basis.


Spying on her is not the way to go about it. There are steps to be taken whether it is talking directly to her. Or getting others involved.


Right to attend Islamic Classes


Clearly it is a greater obligation on the husband -- since he is a shepherd. There is some kind of level which is fard ‘ayn. There’s definitely going to be other types of knowledge for him that are mustahabb.


The logistics are important though; e.g. if you are not supporting your family, then you have to be sure to fulfill your obligations, so there has to be balance.


What are some reasons for the spouse to object?


- They feel the teacher may not be qualified.

- The topic area may not be relevant.


If they are not fulfilling other rights, then that is something else.



2013-09-15 Class Notes


Who has the right to name the child?


Sh found an interesting statement in the books of fiqh, it is a common right between the parents when there is agreement between them, however if there is a dispute then the right is of the father of the child. What does it mean that it is a common right if there is agreement between the parents.


ibn al Qayyim says that it is the right of the father and the father alone. He bases it on the evidence from the Quran, “... You should call them by their father”, however this verse says call them son of so and so. His other evidence is the hadith of the Prophet, ....in the night a son was born to me and I named it by the name of my father Ibrahim.


There is virtual agreement among the scholars that it is the common right and in case of dispute among the parents, it is right of the father alone. They also mention that it is best to get the wife on your side when naming the child.


Footnote: In response to a question, Sh mentioned that his guess is that this might have been the urf of the Arabs of the time also.


What many scholars emphasized is that in many times, this is a cause of dispute -- esp wrt grandparents and their influence on the process. In contemporary fatwas this comes up a lot. And many say you should choose which battle to fight.


In some cultures, it is the ‘urf to name the first son after the father of the father, but what happens after that? It is therefore something that people should compromise on (e.g. one child named by father, one child named by mother).


In some cultures, they name their child with compound names, to satisfy both sets of grandparents.


Choosing a good name for the child is important, it is one of the rights of the child, which we will study later on, however fighting over naming the child seems just silly, you should not make it a cause of issue between the husband and the wife, even though the cause maybe from the grandparents of the child. Pick a good name and come to a consensus.


Right to tell the wife how to wear the hijab (from the rights brainstormed by the class)


The question of wearing hijab is not open to the husband and the wife, it is the right of Allah swt. We will discuss the general right of giving advice to each other in a separate class.


The husband has the right to tell his wife to wear a hijab. The question being discussed is can the husband tell his wife how to wear the hijab. Here the question is about difference of fiqh opinion. Does the wife have the right to have her own fiqh opinion, this issue we discussed earlier when we studied the rights of the wife.


In general the wife has the right to follow her own fiqh opinion, specially matters that are not going to affect the husband.


Issues related to how hijaab is worn


Imagine you are in a society that requires that all of the women are required to wear the hijaab including the face covering. However imagine that it is in a society where the urf is to cover the face, but the wife after marriage determines that the face covering is not mandatory as mentioned by al Albaani, and she wears hijaab without covering her face.


Here the fiqh opinion is going to negatively impact the husband and his family, even though the wife is allowed to follow her own fiqh opinion, the husband can state his right that she has to follow his fiqh opinion.


What about in the United States? What if the wife says “I believe it is obligatory in this country to wear the niqab”


In this scenario, the wife is following a fiqh opinion that states that it is mandatory. So can the husband require the wife to forego something she thinks is mandatory? Generally, no -- because if she believes it is waajib then it is not good for the husband to order her not to do it (unless there’s some special circumstance, say in France/Turkey where the safety of the wife is in question, etc).


Another scenario is that the Hijaab has become a fashion statement, which is missing the point of the hijaab. Can the husband ask her to change it? What about the other way around -- if the man is wearing clothes that are too tight? In both cases yes, there should be a bias to not dressing in a particular way. Yes, because it’s affecting the sanctity of the marriage if one party thinks the other is wearing revealing/attractive clothes.


What about the style/color? This is not an issue that the husband should get involved with, they are small issues.


If the hijaab is meeting the requirements of hijaab and it is not presenting itself as a fashion statement, then the husband should not be concerned with the style/color of the hijaab.



Can the wife keep voluntary fasts without the permission of her husband?


http://sunnah.com/bukhari/67/126

The Prophet (SAWS) said, "A woman should not fast (optional fasts) except with her husband's permission if he is at home (staying with her).


There is a hadith of the prophet that says that the wife is not allowed to keep voluntary fasts without his permission. In another narration, among the rights of the husband is that the wife is not allowed to keep voluntary fasts .... if she gets hungry and thirsty then it will not be accepted.


The part about hunger and thirst is not sahih (weak) according to Al-Bazaar.


Any obligatory act of worship does not require the permission of anyone, including the husband, the ruler, or anyone whatsoever.


What about making up days of Ramadan that she has missed?


Marriage should be based on rahmah and love, there should always be a feeling of mutual love and agreement between the husband and the wife.


What about if she wants to make up a Ramadan day? This is what is known as a (الواجب الموسع) and she can do it at any time without seeking permission from her husband.


What if the wife makes an oath saying if my son returns safely from travel then I will fast for three days? Many scholars say that there is an obligatory fast and therefore generally she has to do it.


Going back to original question about voluntary fasts, the Hanafis say it is makrooh tanzeehi, which means it is disliked but not sinful. But the other three schools say it is Haram.


The above hadith is that of nahi (or prohibition) and the default ruling is that of haraam and if you are straying away from the default opinion, then you have to present evidence for your opinion.


Suppose the woman does fast, would that fast be considered acceptable? Clearly in the Hanafi madhab, then it is OK. But what of other three madhabs?


Fiqh Issue related to set of actions that includes haraam actions


This is part of a set of actions where there is something Haram joined with something Halal. Scenario: Somebody stole a thaub and then prayed while wearing the stolen thaub. Is his prayer sound (sahih)?


The majority of the scholars say that her fasting is sound, but she is sinful in her disobedience to her husband.


Variation: There is a difference between cheating somebody half an hour before your prayers and then performing your prayers, and wearing stolen clothes while performing the prayers.


Variation: Praying in a mosque which has been built on somebody else’s stolen land. You were not part of the act of eminent domain (taking the land), however you are aware of it, can you pray in such a mosque.


Shaikh is highlighting the various degrees of separation between the sin and the act of ibadah.


What if there is tacit or implied permission? That’s OK. Suppose she didn’t get permission from her husband, and then she says “I want you to break your fast”. Some scholars say that if it is not for sexual relations (esp Malikis) then she doesn’t have to. Others say that if she’s not fulfilling some right for her. But all scholars say it is good for him to encourage him to fast.


If the husband allows her to fast, does he get ajr? Yes, since he is assisting her in doing something good. If the wife doesn’t fast because of this was her husband’s request? She’ll get the reward for intention for fasting, and the reward for following her husband.


More generally, nafilah acts (like Qiyam) do not take precedence over waajib acts like obeying the husband.



2013-09-22 Class Notes


We are discussing the right of the husband to require his permission before his wife is allowed to keep voluntary fasts. One of the ramifications is that if the wife is fasting then sexual relationship with her husband is prohibited. This lead to another discussion about husbands demanding sex from their wives.


Umar bin Khattab asked how long can a woman be away from her husband, and he determined a period of four months. As a consequence, he rotated his troops so that none would be away from their wives for more than four months. Now you could say based on this, you could conceivably refrain from sex for a day while your wife is fasting.


Suppose a man is fasting so much that he cannot work and not providing for his family, she could use nafaqah which is due for her to say that her husband should not keep voluntary fasts.


None of our scholars from the past which included female scholars starting from the time of Ayesha who would argue that keeping voluntary fasts without the permission of her husband is not from the right of the wife.


As a general principle, anything that is a right of the man can also be a right of the woman. However there is no question that the marriage relationship established some shared rights between the husband and the wife and also defines specific rights to the husband and to the wife.


Criticism of Muslim marriage rights by the Western Society


We all must agree that there are some rights of the husband that are not the rights of the wife. There is a difference between a husband and a wife. This will be criticized by critics of Islam.


We have a strange phenomenon in the Western society, Muslims are critiqued because the rights of husband are different from the rights of the wife, but the irony is that there are many scientific proofs of the differences between men and women. So they are not being rational, they know scientifically that men and women are different, but yet cannot rationally fathom that they would need different rights.


There are a number of books and a mini-industry about how men and women are different in the psychological community. “Why men don’t have a clue and women always need more shoes” -- “why men lie and women cry”, “Men are from Mars, Women are from Venus”, “The Male Brain”, “The Female Brain”.


Why men want sex and women need love” -- Book written by a husband & wife couple: “Alan and Barbara Pease


In the 1980s it was believed that most of things can be learned, but more recent issues have shown that there are many things hardwired into us.


The artificial environment of equality where we pretend to one another that we want the same things is nothing more than political software. Men and women want different things and these are largely dictated by our hardware. Attitude towards sex is different between man and woman.


They did survey of people from different countries in 2005 to find out who are most sexually satisfied women. The survey found that women from Saudi Arabia were the most satisfied and they said that their husbands were concerned about their sexual satisfaction. And they quote a verse from the Quran.


And according to the survey the women who were least satisfied were from Turkey and the authors do not comment on it. Footnote: Could it be that Ataturk and his secular philosophies have something to do with it?


So if there is difference in attitude about sex between men and women, then it must be captured in the law. The Shariah is unjustly attacked by the West and also by some Muslims when these differences are established in law.


One of the extreme points of view of feminist movement is that gender differences are created by culture. They say that even the physical differences are created by culture. However as we can see from many books in the Western society that highlight the physical and physiological differences in the genders and to ignore them does not make sense.


There is no question that wife has the right to intimate sexual satisfaction, but that does not preclude the rights that are given to the man specifically such as the ability to not allow his wife to keep voluntary fasts since it keeps her away from sexual relationship.



Rights of the husband: Obligation of the wife to serve her husband


Classroom discussion before we start discussing whether it is indeed a right.


Does the husband have the obligation to be served by his wife? It means that the wife is obligated to clean, cook, serve her husband?


Is there a cultural obligation for the wife to serve her husband and understood as part of the deen? Is this what the culture expects from a righteous good wife and if she does not do so then she is not?


Opinions about obligation of the wife to serve her husband


In the books of fiqh they distinguish whether the husband has means to afford domestic help, however we are going to assume that most of the husbands have sufficient means.


One opinion: It is not obligatory on the woman to serve her husband: no need to cook, bake, clean the house etc.


This is the opinion of the majority of the Shafi’i and Hanbali school, and some Malikis and the Thaahiri schools. This is also the view of some of the Hanafis.


Evidence for the above opinion is based on the obligation of the husband to provide domestic help to his wife.


A quote from: Al-Hidaya -- a well known book by Al-Marhghinaani in the Hanafi madhab. There’s a discussion of whether it is an obligation on the husband to provide servants. The maintenance of the wife’s servants is on the husband provided he is opulent service. And it is not sufficient to support her, since the servant women are needed to ensure her ease. Hanifah and Muhammad say one is sufficient, but Abu Yusuf says that it two servants.




2013-09-29 Class Notes


Clarification on our attitude towards science. Muslims are not anti-science. The sciences differ in physical and social sciences in terms of types of experiments and results that can be inferred. Sciences can have errors due to methodology or due to inherent biases of the scientists. Muslims are cautious when accepting results from science, we use the results carefully and within limits. However this topic is for another class dealing with tafseer and science.


Is it obligatory for the wife to serve her husband?


We discussed the first opinion that it is not obligatory for the wife to serve her husband. We were discussing this opinion and their evidences.


Opinion #1: It is not obligatory for the wife to serve her husband


The rate of nafaqa due from the rich husband to his wife’s servants is the same as the poor husband. So basically they take the minimum due as the basis for providing for the wife’s servants.


Mohammed Shaybani says that the poor husband has the same responsibility as the rich husband, either he provides the servants or does the work himself.


Imam Nawawi also had the same opinion. He himself did not get married since he felt that he would not be able to fulfill all of the rights of the wife. He was very cautious, he would stay away from anything sinful. The only thing he ate was from his father’s farm since he thought that was the only thing that that he was confident was halal.


Nawawi’s opinion was that none of the work of the wife was obligatory. One evidence for this view is what is the nature of the marriage contract. x


Evidence #1: Evidence for this opinion is based on the essence of the marriage contract which is just the right of the husband to enjoy her (sexual relationship with the wife), and nothing else is alluded to or understood from the contract.


So anything that the wife does that is not mentioned in the contract is due to urf and is not required from the marriage contract.


If the urf was for each family (household) to have their own housing then that implies the wife should get her own housing even if it is not mentioned in the contract. So can you say that if the urf is for wife to serve her husband, then even if it s not mentioned in the contract, she is still obliged to do so?


If you say that the contract implies more than what is stated in the contract, then the burden of proof is on the person on who is claiming these additional obligations implied by the contract.


Isn’t the wife also enjoying the sexual relationship with her husband? Those who say it is not obligatory for the wife to server her husband say that husband has more sexual rights such as not allowing the wife to keep voluntary fasts without his permission etc



Evidence #2: Quran say treat your wife in a good way, ashari hunna bil maroof. They argue that making your wife to serve you does not comply with treating your wife in a good way.


Ashari hunna bil maroof means that you treat her right, however she might still have some obligations such as supporting her husband, if the husband is facing hardship, she takes it easy on him etc



Evidence #3: Hadith of Abu Hind the wife of Sufyan who complained to the Prophet that her husband is stingy and does not treat her properly financially for her and her child. Prophet told her to take from his husband’s wealth what is your right from the urf.


They say that this hadith shows that husband has to provide a servant for his wife and they claim that since Sufyan was a prominent person in the tribe and he would not prevent nafaqa for his wife, so the only thing she complained about was for servants.


However this evidence that this hadith is about servants for the wife is very weak.



So far the evidences seem very weak. And they also make analogy between nafaqa and having servants. The say that the husband is responsible for all of the wife’s needs and that providing servants for her is part of the nafaqa.


The story of Fatima from Sahih Bukhari, she came to the Prophet to ask for servant. The Prophet told her that I would tell you something better than servants, which were words of dhikr.


This hadith is used as evidence by both those who say that it is obligatory for wife to serve her husband and those who say it is not obligatory for her to serve her husband.


The hadith of Asma daughter of Abu Bakr who married Zubayr described her conditions when she married him, she did a lot of chores for her husband. She is emphasizing that he is poor and that he did not have any means. She continued doing chores such as carrying dates on her head, until her father provided a camel and a servant for her. Her conditions changed when her father sent her a servant.


Zubayr tells his wife that he is ashamed that she has to carry the dates on her head. This shows that it is not obligatory for her to do these chores. And it was part of her noble character.


However all of the chores described by Asma were outside the household chores, would you say then that the argument would be for or against it being obligatory?


Obviously the Prophet saw the wifes doing chores for their husbands, he saw Asma carrying the dates and he knows Zubayr and his circumstances, he offered to help her but he did not object to her doing so.



Story of Umar bin Khattab -- a man came looking for Umar and had some complaints and he overheard the wife of Umar railing against him, and so Umar called the man and said what’s going on? he said I saw what your wife was doing to you, I was going to complain but then saw that there was no hope for me. Umar then says: “she cooks food for me, and raises my children, and tidies the house, and she does this without any obligation to do so.” Umar states that because of these things, he has patient with her venting.


Sh has looked for this story, and the only place he has found it is in a few fiqh books (e.g. shinqeeti’s book, and al-bujairi’s books). So all of the places where it has been found, none of them have the isnad of this report.


Maliki’s think there are two cases where the husband is required to serve or arrange for the service  his wife: if the wife is from the upper classes, and she is used to being served. If the woman is from that class of people then it is obligatory. Or if the husband is from affluence and then he is required to serve the wife.


We are trying to determine the default case for whether it is obligatory for the wife to serve her husband.


Could it be that both sides have equally strong points of views????




2013-10-06 Class Notes


Discussion of opinions and evidences for the two point of views about whether it is obligatory for the wife serving the husband


Opinion of Sh Nasiruddin al Albani, he stated that he did not find that he did not find any sound evidence for those who said that it is not obligatory.



Hadith: Prophet asked a man whether he is married and when he said yes, the Prophet asked him how is she with you with? He replied she does all that she can fulfill and she tries her best to fulfill him.   And then the prophet said that she is your jannah and ...


This hadith was recorded by ....


Shuyab al Arnaut said that it could be at the level of sahih. .... Albani has concluded it is hasan based on other evidence. This hadith has some problems with the chain.


We have to define those rights and if she is fulfilling them then she is his jannah...... However you cannot put the cart before the horse and willy nilly define your rights and ask her to fulfill them to meet the conclusion of the hadith.


This hadith cannot be used as evidence to support that it is obligatory for the wife to serve her husband.


The essence of the hadith of Fatima and asked the prophet for a servant. How can this hadith be used as evidence that it is obligatory for a wife to serve her husband. How does ibn al Qayim use this hadith as evidence that it is obligatory for the wife to serve her husband? We also mentioned that this hadith is used by the other side to say that it is not obligatory for the wife to serve her husband.


Fatima was complaining about the household chores, however the Prophet did not tell her that it is obligatory for her to serve her husband.


So this shows us that the hadith is not providing specific guidance for either side of the argument whether it is obligatory or not for the wife to serve her husband.


The hadith of Asma shows that she is doing so many chores. However both sides are using as evidence. This shows that there is not conclusive evidence for either side.


..... missed part of class due to Maghrib prayers ....


Ibn katheer says both of them have rights. It is obligatory for the man to provide maintenance for the family. He says that you will not find in the lives of any of the sahaba that their wives demanded a servant or that they did not serve their husband. he says that even if it was not obligatory, you will not find any of the wives were not serving their husband, it was urf of the time and they were the best.


He then quotes Surah Yusuf when he was escaping the advances of the wife of the Aziz, the Quran translates it as they find the husband at the door. Allah swt is using sayyed which means master of the household.


Is this argument strong, the verse of Surah Yusuf that the husband is the master of the household? The wife of the Aziz was not a slave, yet Allah swt is using the term master of the household to describe the husband of the wife.


Footnote: The feminist movement has problems with this terminology. They have analyzed the Quran from their point of view and criticized the language of the Quran.


The gender based critiques, offer the following explanation. Among the Coptic Christians who are descendants of Yusuf, they use the term sayyed to refer to the husband. They also argue that the wife might have been a freed slave, but this is conjecture on their part.


Qanitat - word used to describe the wives???? in the Quran


Ibn Katheer says that Ibn Abbas says that this word is used to describe the wives who serve their husbands. Ibn Katheer also says that the best guardians of the husband’s properties are the women of the Quraysh. He says that the meaning of this word al haniya in the hadith means to take care of somebody.


Ibn Katheer uses this verse and this hadith to say that it is obligatory for the wife to take care of the household.


Does it mean if the wife is taking care of the household means that she is serving her husband?


If we say that an employee is dutiful and obedient? It means that the employee is good at fulfilling the tasks that are his duties.


If a wife is obedient, it means that she is obedient in the rights that are obligatory. However we are trying to determine whether serving the husband is an obligation of the wife. We cannot use hadith of obidience to say that it is obligatory for the wife to serve her husband.


Hadith of the Prophet, it is not proper for any human being to prostrate to another human being, however if it was allowed for a human being to prostrate to any other human being, I would have allowed the wife to prostrate to her husband because she has many rights to her husband.


However we cannot use this hadith as evidence that it is obligatory for the wife to serve her husband.


Hadith of the Farewell pilgrimage, I advise you to treat your women well, because they are dependent upon you (they are like prisoners to you)


There is no direct evidence to say that it is obligatory for the wife to serve her husband.


The Prophet ordered Ayesha to bring something for her. However he ordered many of the Sahabah. This is the nature of the Amr or command in the Arabic language.


Hadith: Ayesh boiled the water and she served him soup.


This shows that Ayesha served her husband. However this does not show us that it is obligatory for the wife to serve her husband.


Hadith of Jabir when he remarried, the Prophet asked him whether he married a virgin or somebody who has married before, the prophet asked him why he did not marry a virgin. Jabir says that he married somebody older since he had many siblings who needed help after his father died. The prophet told him, you did well.


However again this is not evidence that it is obligatory for the wife to serve her husband.


We are looking for sound, conclusive evidence to show us that it is obligatory for the wife to serve her husband.



2013-10-13 Class Notes


Evidence for the opinion that it is obligatory for a wife to serve the husband


Last time we did not finish the evidences, we will continue where we left off.


One of the evidences is the lengthy hadith about the three believers (there were many hypocrites who did not participate) did not participate in the battle of Tabouq. After the muslims came back from Tabouq, they were told to boycott those three believers. After this incident, the wife of one of those boycotted said that her husband is an old man and he does not have any servants, she asked the prophet is it okay for her to serve him, he replied yes, then she asked would you dislike if I served him, he replied no???


This evidence goes against the evidence for proving that it is obligatory for a wife to serve the husband?


Her question was not specific enough for us to draw this conclusion, she did not ask the question that, look this is my obligation to serve my husband and you have ordered us to boycott him, so can I continue to serve him?  She phrased her question to say that my husband is old and he does not have any servants and in the light of her question, we cannot say that this hadith is pointing us to say that it is obligatory for a wife to serve her husband.


Another evidence is the hadith recorded by Bukhari, Ayesha used to wash the semen off of the garment of the Prophet.


There is nothing in this hadith that it shows that it is obligatory for a wife to serve the husband. If you can quote this hadith, then what about the hadith of Ayesha that informs us that the Prophet used to do household chores, why can’t we use it as evidence for the husband to serve the wife.


Another evidence is the hadith during the final Hajj, the Prophet admonished us to treat the women well, he said that they are truly awaan (they are like prisoners among you, since you have authority over them and you have many ...)


Ibn Taymiyyah said that the woman with respect to her husband is like a slave and a prisoner; and it has been narrated from Umar bin Khattab: Marriage is a form of slavery so be careful about who you give your beloved daughter to.


Are these two above evidences a stronger proof for their opinion?


Husband is considered the head of the household and has many obligations. This is a heavy responsibility, but when the decision is made, the household is expected to follow it.


The hadith of the Prophet tells us that the man is responsible for the household. But the statements of ibn Taymiyyah and Umar bin Khattab will not have the same authority as the statement of the Prophet.


Another evidence is the hadith that all of us are like shepherds and woman is responsible for the house of the husband, she is the guardian and shepherd of the household and she would be held responsible for her guardianship.


Discussion about obligations, commands, rights and the default ruling for matters that are not dictated by clear evidence


If we say that the wife is supposed to obey the husband and there is no question about it, since there is definite evidence for it. However the question is what is the default case for matters in which there is no clear evidence.


The group that has opinion that it is obligatory for wife to serve the husband base it on the point that the default ruling is that the wife has to obey her husband even in matters that there is no clear evidence for it.


The shariah is defining certain rights of the husband, and in those matters the wife has to obey her husband.


The question is whether everything that the husband asks for, the wife has to obey it, even in rights that are not specifically given to the husband.


We are supposed to obey the leader (khalifah), does that mean we obey him in everything, or we obey him in matters that are in the purview of the leader?


What happens if the khalifah asks you to paint you car green? Would you obey him? This is not a matter of public purview or maslaha????


Can a husband demand coffee at 5 o’clock and if the wife has the ability to do so but refuses to serve him, can you say that she is a disobedient wife?


The answer to the above question stems from the different understanding of obedience in the default case for which there is no specific evidence.


To understand this question, we have to study the specific cases in which the wives of the Prophet disobeyed him.  He never said to his wives that you disobeyed me.  Shaikh will revisit this point later.


How to understand the obedience of a wife to her husband?


While one of the arguments is that the ‘urf of the Muslims is that the wife takes care of the household is one thing, and to say that it is obligatory is another thing.


Ibn Taymiyyah says that it is obligatory for the wife to serve the husband, according to what is customary from someone similar to her to someone similar to him; and that will change from situation for example, the serving of the bedouin woman is different to the woman of the city and the serving of the weak woman is not the same as the serving of the strong woman.


Ibn Hajjar says it is determined by the customs of the land and it changes from place to place.


The scholars who say it is based on urf, also say that the contracts should honor the urf of the land. One of the contemporary authors of the opinion that it is obligatory for the wife to serve her husband, says that serving of the city woman would be different from the serving of the bedouin woman, .... and the customs and the needs will change.


They say that it is obligatory but base it on the urf. So the serving is dependent upon the urf even if it is obligatory.


For example, in Saudi Arabia, it used to be the case that if a man ate out of home, it was something that indicated something was wrong, and now it is considered to be a normal practice that does not indicate issues in the household.


Both spouses must realize that there are limits. And so if the wife can deliver this, then it needs to be understood that would balance the relationship, but it seems to be unreasonable to ask the wife to work full-time and cook meals.


There is no specific evidence that it is obligatory on her. But it should not get to the point where she must obey every command that she has. And if she doesn’t in some cultures, she is physically punished. I don’t see any room for that based on whether it is obligatory or not. Mustafa Al-Adawi and many other scholars say that it is not obligatory.


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