Family Relations
According to the Shafis, Does a Woman Need to Serve Her Husband?
Question:
Salam. My question is, is it the duty and responsibility of the wife to do the household work? What does Islam says about that? Thanks.
Country: United Arab Emirates
Answer:
Wa alaykum salam wa rahmatuLlahi wa barakatuHu,
The Madhhab’s opinion is that a woman is not obligated to serve her husband by doing chores and housework. This view would consider that which women customarily do as a good and virtuous supererogatory act for their husbands and their homes for which they are rewarded by their Lord – glorified and exalted be He – for. Shaykh Abu Ishaq al-Shirazi related this view in his Muhadhdhab v. 4, p. 236.
Is Anal Sex Permitted in the Shafi’i School?
Question:
In the Shafi’i Madhhab, can the husband do anal sex with his wife? Is it permissible?
Country: Pakistan
Answer:
Wa alaykum salam wa rahmatuLlahi wa barakatuHu,
Imam Shafi’i mentioned that the ruling of unlawfulness is established by both the Qur’an and the Sunnah. We find that Imam Ahmad related in his Musnad v. 5, p. 213 with an isnad that’s narrators are thiqat [impeccably trustworthy and completely accurate] that the Prophet (sallaAllahu alayhie wa sallam) said, “…do not enter women from their rears.” Imam Shafi’i also related a hadith with this wording and declared it Sahih [rigorously authentic].
Read MoreMarrying an Infertile Woman
Question:
As-Salaamu ‘Alaykum, I have a brother who wants to marry a woman and she is not able to bare children. My parents are extremely upset and do not want my brother to be without children. They really love each other and the only issue is her inability to have offspring. What is the best thing for them to do in this situation?
Country: Canada
Answer:
Wa alaykum salam wa rahmatuLlahi wa barakatuHu,
There are hadith on the topic of one’s marrying a fertile or infertile woman. For instance,
Fantasizing about Other Than One’s Spouse
Question:
Assalamu alaykum. Is it permissible for a man or woman to fantasize that they are having sexual relations with other to whom they are married?
Country: United Kingdom
Answer:
Wa alaykum salam wa rahmatuLlah wa barakatuHu,
In Tuhfah v.7, p. 205-06, Ibn Hajar mentioned the case of a man having relations with his wife while fantasizing about the beauty of another woman until he fantasizes that he is actually making love to another. He mentions that the scholars differ on this issue, and that a group of later authorities, from amongst them Ibn al-Firkah, Bizri, Raddad, and Suyuti, opined that it is permissible. Ibn Hajar inclined towards the opinion, and Shabramallisi stated that it is relied-upon [mu’atamad]. (See: Sharwani, v. 7, p. 205-06) However, it is not permissible for one to desire [tamany] another man’s blessing – like his womenfolk – or the unlawful act of fornication; both are unlawful.
And Allah knows best.
Shafiifiqh.com Fatwa Dept.
Read MoreIs Abortion Permissible?
Question:
As salamu alaykum,
Is abortion permissible?
Answer:
Wa alaykum salam wa rahmatuLlahi wa barakatuHu,
Abortion entails getting rid of a nutfah [the zygote], embryo, or fetus from a woman’s womb. The nutfah is essential in our being created; as Allah informed us in various verses of the Holy Quran, like where He says:
ثم جعلناه نطفة في قرار مكين
“Thereafter We made him (Adam’s children) as a nutfah, placing it in a safe lodging (the womb).” (Surah al-Mu’minin 13)
After conception abortion is unlawful. (Ihya’ ‘Ulum al-Din v. 1, p. 472-73; Tuhfat al-Muhtaj v. 7, p. 18)
And Allah knows best.
Shafiifiqh.com Fatwa Dept.
Read MoreRegarding a Three fold Divorce on Deathbed
Question:
As Salamu Alaykum I had a question on inheritance. I read in [the] reliance that (n6.3) that if the husband does a three fold divorce to his wife on his deathbed that she does not inherit from him (unless it is less than a three fold divorce). Can’t this position be abused by men to avoid giving any inheritance to their wife? I’m sure there are conditions that need to be met. Please clarify.
Answer:
Within the realm of possibility, a person could use the law to manipulate the distribution of an estate. The concern of one potentially contriving legal stratagems, and subsequently taking advantage of them, is not restricted to the case in question. For instance, if one were to marry on his deathbed, his new wife would be entitled to receive inheritance; and true to form, this would influence what the other heirs receive. In this condition, Imam Shafi considered the new wife entitled to inheritance. (al-Hawi al-Kabir 8/279) Imam Malik did not; and in fact, considered the marriage to be annulled. (al-Ishraf fi Masail al-Khilaf 2/750)
The rationale of the proponents who support the view that she does not inherit is (at least partially) based on a principle of legal theory, namely: sadd al-dhariah. This is defined as,
هي المسألة التي ظاهرها الإباحة ويتوصل بها إلى فعل المحظور مثل أن يبيع السلعة بمائة إلى أجل ويشتريها بخمسين نقدا فهذا قد توصل إلى خمسين بذكر السلعة
“It is an issue that’s external structure is permissible while it obtains a prohibited action. For example, one sells merchandise for one-hundred on credit; and then, purchases it for fifty cash. This has allowed one access to fifty via the merchandise.” (al-Bahr al-Muhit 4/382)
Imam Shafi did not consider sadd al-dhariah a tenable theory through which rulings may be restricted. (al-Bahr al-Muhit 4/382) Indeed, al-Taqi al-Subki discussed the issue of whether or not there is a qawl from Imam Shafi inclining toward sadd al-dhariah, and demonstrated that there is not. (Sharh al-Muhadhdhab 10/158-61) Thus, it is not a suitable principle, at least not in itself.
Regarding divorce upon one’s deathbed, if a person divorces his wife in such a condition and the divorce is revocable, then she may inherit from him. The scholars have agreed upon this [ijma]. (Mughni al-Muhtaj 4/477)
If the divorce is irrevocable, then there is a consensus [ijma] that a man would not inherit from his divorced wife. (al-Hawi al-Kabir 10/264) However, regarding if she inherits or not, that is a place where the scholars have differed. In fact, this is an issue that has been differed on since the time of the Prophetic Companions. Imam Shafi related,
أخبرنا بن أبي رواد ومسلم بن خالد عن بن جريج قال أخبرني بن أبي مليكة أنه سأل بن الزبير عن الرجل يطلق المرأة فيبتها ثم يموت وهي في عدتها فقال عبد الله بن الزبير : طلق عبد الرحمن بن عوف تماضر بنت الأصبغ الكلبية فبتها ثم مات وهي في عدتها فورثها عثمان رضي الله عنه قال بن الزبير أما أنا فلا أرى أن ترث مبتوتة
“Ibn Abi Rawwad and Muslim b. Khalid < Ibn Jurayj < Ibn Abi Mulaykah who asked Ibn al-Zubayr regarding a man who divorced his wife, made it irrevocable, and thereafter died during her waiting period. So Abd Allah b. al-Zubayr said, ‘Abd al-Rahman b. Awf divorced his wife Tamadur bint al-Asbagh al-Kalbiyyah and he made it irrevocable. Thereafter, he died and she was in her waiting period. Uthman (Rady Allah anhu) allowed her to inherit.’ Ibn al-Zubayr then said, ‘Regarding myself, so I do not opine that the irrevocably divorced woman inherits.”’ (Musnad al-Shafi 3/2457-58)
This has also been related by Bayhaqi (al-Sunan al-Kubra 7/362) and Daraqutni. (Sunan al-Daraqutni 5/112) Other sources mention that Tamadur was ill-natured, and that prior to his illness, Abd al-Rahman b. Awf had already given her two pronouncements of divorce. Thereafter, something happened between the two of them and Abd al-Rahman gave her a finalized divorce. Tamadur later married Zubayr b. al-Awwam after her divorce from Abd al-Rahman. They stayed married for a very short period of time and then he also divorced her. (al-Isabah fi Tamyiz al-Sahabah 8/33; al-Tabaqat al-Kubra 8/231) It is insupportable to consider that Abd al-Rahman would have divorced his wife solely to deprive her of inheritance. Perhaps, Uthman anticipated what may emerge in comparable cases and ruled thus to set a precedent. (Rady Allah anhum) Allah knows best.
From those who said that a woman in such a condition would not inherit are Abd Allah b. al-Zubayr and perhaps Abd al-Rahman b. Awf (al-Hawi al-Kabir 11/241); Ibn Abi Mulaykah and many traditionists also have this view. Imam Muzani opined according to it, as did Imam Dawud al-Zahiri. (Ibid, 10/264) This is Imam Shafi’s qawl jadid and the relied-upon opinion in the Shafi School. (Mughni al-Muhtaj 4/477-78)
From those who said that a woman in this condition would inherit are Umar b. al-Khattab, Uthman b. Affan, and Ali b. Abi Talib. From the early jurists are Imam Malik, Rabiah, Layth b. Sad, Awzai, Sufyan al-Thawri, Abu Hanifah, Qadi Abu Yusuf, Imam Muhammad, Imam Ahmad b. Hanbal, and Imam Shafi in his qawl qadim. (al-Hawi al-Kabir 10/264) Khatib Shirbini mentioned that the scholars have allowed her to inherit in this situation, due to the fact that her husband could be divorcing her in order that he deprives her from inheritance. (Mughni al-Muhtaj 4/478)
The qawl qadim’s recognition of her inheritance is held with certain conditions. For instance:
1) The wife is entitled to inherit. If she was a non-Muslim (even if she embraced Islam after the divorce) she would not be entitled.
2) The divorce was against her wishes. If she buys her way out of the marriage, or requested a divorce, she is not entitled.
3) He was diagnosed as terminally ill, and then, died as a result of that illness.
4) It must not be merely attested to.
5) The divorce was immediate. (Ibid)
Regarding when she would inherit in such a situation Muhammad b. Abd al-Rahman al-Dimashqi al-Uthmani, in his Rahmat al-Ummah fi Ikhtilaf al-Aimmah, mentioned that Imam Shafi had three opinions. They are:
1) As long as her waiting period has not ended.
2) As long as she has not remarried.
3) Even if she remarried. (Rahmat al-Ummah 212)
One difference between the qawl qadim of Imam Shafi and his qawl jadid is that in the qadim Imam Shafi considered qawl al-sahabi [an opinion of a Companion] to be an admissible form of evidence. And, in the jadid he did not. (al-Bahr al-Muhit 6/53-64; Mustasfa 1/266-67, 269, 272-74)
The principles employed by Uthman in the case of Abd al-Rahman b. Awf and Tamadur bint al-Asbagh suggest a sadd al-dhariah-inclined methodology. (Rady Allah anhum) Uthman expressed his underlying sediment, by which he gave his ruling,
أردت أن تكون سنة يهاب الناس الفرار من كتاب الله
“I desire that the practice makes people dread circumventing Allah’s book.” (al-Mudawwanat al-Kubra 3/798)
And,
قيل لعثمان أنتهم أبا محمد؟ قال لا ولكن أخاف أن يستن به رجال
“It was said to Uthman, ‘Is it that we doubt Abu Muhammad?’ He said, ‘No. However, I apprehend that men may follow the way.’” (Ibid)
Uthman was a Companion and the third caliph (Rady Allah anhu). Consequently, for those who accept it, his ruling would be a form of evidence in itself, i.e. qawl al-sahabi. Moreover, for those who recognized sadd al-dhariah as an operational principle, Uthman’s view may well support both the principle along with its consequent ruling. Others may perhaps seek to employ other valid means by which to discover the law, for example, qiyas. Beginning in the time of the Prophetic Companions, generation after generation, Islamic scholarship delved into deducing the law absolutely reliant on the primary source evidences. In his al-Fatawa al-Mawsiliyyah, Ibn Abd al-Salam said,
إذا صح عن بعض الصحابة مذهب في حكم من الأحكام لم يجز مخالفته إلا بدليل أوضح من دليله ولا يجب على المجتهدين تقليد الصحابة في مسائل الخلاف ولا يحل لهم ذلك مع ظهور أدلتهم على أدلة الصحابة لأن الله تعالى أمرنا باتباع الأدلة ولم يوجب تقليد العلماء إلا على العامة الذين لا يعرفون أدلة الأحكام
“When an approach toward a ruling from a Prophetic Companion is sound, it is not permissible to disagree with it, besides with more apparent/evident evidence than his evidence. It is not obligatory for mujtahids to blindly follow the Prophetic Companions in issues that are differed upon. That is not permitted for them when their evidence is manifest more than the Companions’ evidence; because, Allah the Most High ordered us to follow the evidence. And, blindly following scholars has not been made obligatory, besides for the laypeople who do not know the rulings’ proofs.” (al-Bahr al-Muhit 6/69)
Abd Allah b. al-Zubayr’s opposing viewpoint on Uthman’s ruling is distinctive. That is why a claim of consensus is subjective. Imam Shafi employed his own ijtihad and reached a conclusion that she will not inherit. Some of his reasons for reaching such a conclusion have been documented in Kitab al-Umm.
A comparable review could be made with the case of bay al-inah. The Malikis prohibited it and declared such a contract invalid, supporting their argument with sadd al-dhariah and an opinion of Aishah (Rady Allah anha). Perhaps Aishah’s opinion is her own ijtihad. Zayd b. Arqam held an opinion contrary to hers; ergo, consensus would be ambiguous. Zayd’s opinion was credibly his own ijtihad; his opinion concurred with Imam Shafi’s ijtihad. Al-Taqi al-Subki mentioned,
فإن أصل ما نذهب إليه أنا نأخذ بقول الذي معه القياس والذي معه القياس قول زيد بن أرقم
“Then, the principle with which we proceed is, that we take the opinion of the one who has on his side the qiyas. And, the one who has the qiyas is Zayd b. Arqam…” (Sharh al-Muhadhdhab 10/150)
In the case in question, the marriage relationship is part of an external structure that delineates the manner in which an estate must be distributed. During the division, an irrevocably divorced ex-wife is disqualified; she is no longer a spouse. A wife’s right to receive inheritance is established upon her husband’s passing. The fact that one’s irrevocably divorced ex-wife is disqualified before her husband’s passing, disentitles her to any claim on her ex-husband’s estate.
It is preferred to pass judgment on what is apparent rather than something obscure and ambiguous, like a person’s inner-conscious. Imam Nawawi mentioned,
لأن الاعتبار عندنا بظاهر العقود لا بما ينويه العاقدان ولهذا يصح بيع العينة ونكاح من قصد التحليل ونظائره
“Since the consideration, according to us, is with the external structure of contracts, not with what the contracting parties intend. And consequently, bay al-inah is valid, the marriage of one who only intends to make another’s ex-wife lawful is valid, and other comparable cases.” (Sharh al-Muhadhdhab 9/261)
And to the same effect, Imam Subki stated,
فالأولى الاعتماد على ظواهر العقود الشرعية وعدم الإحكام بأمر آخر
“The foremost reliance is on the external structure of legal contracts and not issuing rulings through another matter.” (Sharh al-Muhadhdhab 10/155)
When a contract’s external structure is valid, then the Shafis consider it. One’s inner-conscious motivation for which he executed a contract could perhaps be problematic in the inward dimensions. However, to ascertain what happens in another’s mind is highly speculative. Then, how could a ruling be issued by mere apprehension of what might take place in some people’s minds?
The Shafis considered legal stratagems, even in the case in question. Khatib said,
وإذا قلنا بالجديد فلها حكم بقية البوائن إلا إن قصد بطلاقها فراره من الإرث فيجري في تحريمه خلاف تحريم بيع النصاب قبل الحول فرارا من الزكاة
“When we judge by the jadid, then to her is the ruling of all other irrevocably divorced women. Besides, when he intends through divorcing her to evade inheritance; so then, the difference of opinion found in [the issue of] the unlawfulness of exchanging one’s zakatable nisab [a minimum amount needed for zakah to be payable] before a lunar year elapses in order to evade paying zakah is imposed.” (Mughni al-Muhtaj 4/478)
Ibn Hajar al-Haytami discussed the issue of exchanging one’s wealth in order to evade paying zakah, the issue of irrevocably divorcing one’s wife to avoid her inheriting, and the scholars’ outlooks on legal stratagems.
ثم الحيلة في إسقاط الزكاة اختلف العلماء فيها اختلافا كثيرا فقال مالك وأحمد بن حنبل وإسحاق أن من احتال على إسقاط الزكاة عنه في أثناء الحول لا تسقط عنه الزكاة بل هي باقية في ذمته يعاقب عليها في الآخرة العقاب الشديد ومتى اطلعنا على إنسان أنه يفعل ذلك عاقبناه عليه وعزرناه التعزير الشديد الزاجر له ولأمثاله وأخذنا الزكاة منه قهرا عليه
“Then, there is the legal stratagem for evading zakah. The scholars have notably differed regarding it. Malik, Ahmad b. Hanbal, and Ishaq all opined that one who used a stratagem to evade paying zakah during the course of the lunar year is still obliged to pay zakah. In fact, it remains something that he is held legally responsible for, and he will be punished very severely in the Hereafter [for his action]. When what he has done is brought to our attention, then we discipline him with a harsh and reprimanding sentence: to him and to his like. As well, we take the zakah from him by force.” (Al-Fatawa al-Kubra al-Fiqhiyyah 4/77)
Ibn Hajar continues,
وقال الشافعي وأبو حنيفة وغيرهما أنها بقصد الفرار من الزكاة مكروهة لكن خالف الشافعي جماعة من أصحابه كالدارمي وصاحب الإبانة والمسعودي فشذوا وقالوا إنها حرام كما قال به مالك وأحمد وإسحاق وحكاه الإمام عن بعضهم وتبع هؤلاء الغزالي في وسيطه ووجيزه فقال إنها حرام وقال ابن الصلاح يكون آثما بقصده لا بفعله وأبداه الأذرعي بحثا في الخادم إنه مسيء
“Imam Shafi, Abu Hanifah, and others opined that if he does that intending to evade paying zakah, then that is disliked [makruh]. However, some of the Ashab [Imam Shafi’s companions/students] differed with Imam Shafi, like Darimi, Sahib al-Ibanah [Fawrani], and Masudi. They took exception to that view and stated that it is unlawful [haram], like what Malik, Ahmad, and Ishaq stated. Imam al-Haramayn related it from some of them. Ghazzali followed them in his Wasit and his Wajiz, stating that it is unlawful. Ibn al-Salah said that one is a sinner with his intention, not with his action. Adhra’i presented research in al-Khadim that he would be an evil-doer…” (Ibid)
Ibn Hajar continues by discussing the views of Ghazzali and Zarkashi,
وقال الغزالي في الإحياء لا تبرأ الذمة منها باطنا وحكي عن أبي يوسف أنه كان يفعل ذلك ثم قال العلم قسمان ضار ونافع وهذا من الفقه الضار وتبعه الزركشي في قواعده فقال ومن الحكم ما يؤخذ به في الظاهر دون الباطن كما إذا باع المال الزكوي فرارا من الزكاة تسقط في الظاهر وهو مطالب بالزكاة فيما بينه وبين الله سبحانه وتعالى
“…Ghazzali said in his Ihya that, ‘he would remain inwardly accountable for it. It is transmitted from Abu Yusuf that he would do that. Thereafter, he said that knowledge is of two kinds: 1) harmful and 2) beneficial. And, this is from the harmful fiqh.’ Zarkashi followed him in his Qawaid, and said, ‘the judgment rests on what is statutorily apparent, not the inward. Likewise, if he sells his zakatable wealth to evade paying zakah, then his obligation is canceled in the outward statute whilst he is still held answerable for what is between him and Allah the Most High.’” (Ibid, 77-78)
Then, Ibn Hajar mentioned the case of one who is terminally ill and divorces his wife,
وكذلك إذا طلق المريض زوجته فرارا من الإرث وكذا إذا أقر لبعض ورثته بقصد حرمان الباقين قال الكمال بن أبي يوسف وما في الإحياء هو المتجه وقال الماوردي إنه مسيء إذا تقرر ذلك علم منه أنه لا ينبغي لمن عند أدنى عقل ومروءة ودين أن يرتكب شيئا من هذه الحيل
“In addition, when the sick divorces his wife to avoid her receiving inheritance, in this manner he allows some heirs, with an intention to disentitle others. Kamal b. Abi Yusuf said it is leaning towards what is in Ihya. Mawardi said that he is pernicious. With that understood, it is necessary for anyone with even the slightest amount of intelligence, respect, and religion that he avoids anything from these legal stratagems…” (Ibid, 78)
In conclusion, the relied-upon opinion of the Shafi School is that if a man diagnosed as terminally ill irrevocably divorces his wife intending to prevent her from inheriting and then passes away, then she shall not inherit. Yet, to do so is disliked [makruh]. (Nihayat al-Muhtaj 6/454; Tuhfat al-Muhtaj 8/47) There is a considerable possibility that it is unlawful [haram]. (Ibid)
Allah knows best.
Shafiifiqh.com Fatwa Dept.
Note: Mawardi termed such an illness as “marad makhuf,” meaning: a terminal illness. Also, Khatib expressed in his elaboration on the stipulations for her inheriting in the qawl qadim, that the illness must be “makhuf.” In Mughni al-Muhtaj, Kitab al-Wasaya, Vol. 4, Pg. 82 (Dar al-Kutub al-Ilmiyyah print), disease specifics are discussed. Those interested may consult such works for further details.
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