FJT02 Fiqh of the Judiciary and Testimonies – The Manners of Judging

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Hatem al-Haj

Channel: Hatem al-Haj

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all sort of sorted on how

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to proceed.

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So this session will be about perhaps unfettered hacking or the chapter on the manner of judging or court proceedings

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in having

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died in the year 620, after the hedgehog said in his book lambda, which is a Hammadi primer,

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for da

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da da, da da da, Mo v al muda

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muda de, when the two litigants set before him to judge, and one of them makes a claim against the other the claim will not be heard unless it is accurately detailed. And the details are revealed to the defendants.

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Okay, and then he will explain what he means by this. So he says, in Canada In Canada who didn't say who were in Canada apart and lacrimal they are who do they who were in Canada and and how they're aiyana in Canada, Eva vichara jeans have a p matter

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if the subject of dispute is a dent, he must mention its amount and time, you know, silver coins gold coins.

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If it is real, if it is real estate, he must mention its location and borders, if it is a particular item that is present, he must point it out for points to and if it is absent, he must mention its type and value.

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Okay. So basically, that their claim, and that is why because, you know, court proceedings is a big issue. That's why you need lawyers most of the time now nowadays, because of court proceedings, you have to make your claim in a way that is comprehensible. And that is legible, and so on. So he's saying that the claim has to be basically detailed, has to be clear and detailed. And the subject of dispute has to be pointed out and has to be if it is present, you have to identify it. If it is absent, you have to talk about type and amount and value and where it is and all of that stuff, you have to give all the details. So like you don't to go to make a claim before the judge without being

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ready to make your claim, get your act together, your ducks in a row and then go don't go to the judge, basically to waste their time.

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That's what they're trying to say here. In fact, the power or the claim has other conditions. It has to be mojarra detail has to be identifiable and as also

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to be Metallica, but it's about something that is existent now. So, you know it's not about something that may happen in the future or the consequent legal consequences of this of it are not due now.

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Also, it has to be

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Yeah, it has to be one factor and you can see it has to be

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there should not be

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something to to basically

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invalidate your claim.

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The claim should that should be a valid claim a claim that is obviously invalid may not be heard to begin with.

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Like if you say that this you know this guy

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stole my car 25 years ago.

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That means what he was five or seven when he did that, that claim will not be heard.

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Things like that. So it has to be in fact,

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in fact, that is that is area here that can be used nowadays can be used nowadays.

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Like people who are clever technica, they may use this area from the dollar that was done to me because he asked me, for instance, to deny someone the right to the iron. That's public implication you know, they are

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Public implication, that's mutual purchasing. That's when a man accuses his wife of adultery. Okay. They may say, you know, have the DNA test done first of the DNA test shows the child to be yours.

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You cannot

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basically establish the claim in to begin with, he cannot go to court, the court will not hear your case.

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If the DNA test shows the child is yours.

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I'm not saying that this is right. I'm just telling you that this is something that is being discussed. You know,

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if someone comes to deny the paternity of a child,

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traditionally, what is the precip process? They are public imprecation?

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Okay, now that we have DNA testing, can we force them to give the DNA test first? Everybody says yes. First, to get the DNA test first, but then the scholars will disagree with he be still entitled, keep in mind that this is the night of paternity. This is not only accusation of adultery, because acquisition of a luxury is a different thing. But this is denial of paternity. Can you after the DNA test is done?

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Here their case?

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And give them you know, the right to public implication or not? That's the question.

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Some of the scholars that if the DNA test shows the child to be is you don't hear the case. Close the case here refused to listen

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to him. Anyway, that's something that we talk about. But also the certain cases like it was someone who could be quizzed something or someone acknowledged that he owes you something but it is not

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basically determined what it is it's not alone. It's not known the value of it is not known. Can they can you make that claim? And say so on so bequeath something to me, but it is unknown.

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Yes, in these cases, in these exceptional cases,

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you know, your case would be heard, can make that our that claim, even though the subject of this feud is no, as I know,

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okay.

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Also,

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also, one of the things that

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may be served here, they did not hear a case, unless there is an opponent, you know, in many males have been particular, you don't hear a case when there is no no opponent,

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past an opponent, except in certain cases like to establish a workflow for instance, no opponent, because the workflow is formed by Allah

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and so on. What if someone wanted to come and basically claim ownership of a particular property, claim ownership of a particular property?

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And there is no dispute?

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here that Caesarea though

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the Hanbury said No, you don't. There's no dispute.

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The idea here is that you have to also understand that the judge and town have finite time. And people had, you know, the, the we're also cognizant of the need to not overwhelmed the judge I in town. So that's why they're talking about claims and which cases you hear because otherwise, all the people in town would be sitting, you know,

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with a judge

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24 seven,

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discussing their issues and like

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so they have to identify which cases may be heard, to prevent the overwhelming the system, overwhelming the system now can email me or him Allah said you can't hear a case without the disputants to prevent the dispute in the future.

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You know, what is this now called?

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It's called the shadow law.

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It, it's called the County Recorder, County Recorder. County Recorder basically is where you go to establish ownership of a particular property

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known as, but you just want to establish your ownership of this property. That is why recorded in the county.

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So, that

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is innocence, part of the judiciary and that they like in Egypt, for instance, they are under the Ministry of Justice.

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So, they do recognize that as part of the judiciary

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okay.

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So, can we

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proceed

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exam

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anxiety?

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And is proceeding against

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those who are absent? Yes, yes. Yes, you can you basically Listen here against against someone who's absent. Yes, you can hear a case against someone who's absent if he's far away. And if there is been a proof against them.

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If they are within

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Mustapha pass through, you know, if they are close by,

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to town, you have to bring them you can't hear the case against them without their presence. But if someone is absent or someone is hiding,

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you will have to hear the case.

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Because otherwise, you know, the rights of people won't be lost, if you don't hear cases, because someone can just simply hide.

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So that the case is not heard against, you will have to hear the case. And if there is, if there is proof, you judge against

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which case is this cases that have to do with the rights of man, not cases that have to do with the rights of God. So you don't hear a case against someone that he stole, you could hear the civil case, meaning what

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that person is, is, is basically claiming a right to the value of the store tonight, not the punishment for

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punishment, precept is the right of God, the right of the store, the person from whom something was stolen, is to get the value back of that which was stolen, you can hear the civil case you cannot hear the criminal case.

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Can you can the absent Can you hear a case on behalf of the absent

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not tell he makes though he gives power of attorney who hires an agent to speak on His behalf. In this case, you can't hear

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now you could hear a case of someone who's absent, can hear a case of someone who's absent if he is

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one of several claimants. Like if if it is not just about him, like I say it is a case to establish the passing on of inheritance. And he's one of many heirs, how I always see him case to establish that he works. And endowment belongs to a particular people. And he's one of many, one of the people

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then as one of the claimants,

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you can hear that you can hear the case because there are others who are present. But in general, he can't hear a case on his behalf by him without an agent and a case that's against him. If he's close to town, you would have to bring him you would have to order him to come.

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If he doesn't come, he's hiding or he's far away perhaps and then can't come in all these cases. You hear a case you hear the case in the absence. This is then another controversial between them.

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What I'm giving you now is the authorized somebody's position.

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Right, then does he accept

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Okay, so you will have to bake basically make a detailed clear claim for your case to be heard. You made your detailed clear claim against the dispute and then the judge to see except for my accordingly cost me medical for an akarma hockey Madden muda. We're in Ankara luminosity XL.

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Then He will say to

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His opponents after the claimant made the claim the defendant now it's time for the defendant to speak, He will say to his opponent, what do you say, if he admits the charges made by the claimant, a ruling will be made in favor of the claimant? If he denies them, then there are only three possibilities.

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We're talking here about disputing over an item or property, disputing over an item or property, what are the three possibilities that you can imagine? It's about who has possession of it,

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and whose position the item is. So if he is

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one of them.

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This is three different scenarios here. And he will go over them one by one.

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One of them has

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both of them.

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Like how, like a property in which boats are residing, for instance, both are residing in this property.

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For someone who comes in with a garment, two people come into the room with a garment holding to it, you know, from both ends,

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they both have possession of it. Okay. And then third party has possession of it.

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Not the claimant, not the defendant, someone else has it. Okay, so the first one, one of them has it, then he says,

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Are they fair quarterly madai.

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For incarna, comma, Hakuna Matata, the first the subject of this field is physically in the position of one of them. In this case, the judge who would ask that's the defendant, by the way, the judge you want to ask? Because, because if he has possession of it, he's not the claimant, he's the defendant, the judge

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will ask the claimant Do you have proof? You have two witnesses? Do you have a document? Do you have proof?

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If he says yes, and establishes his proof, then how rolling will be made in his favor on this basis. Okay, he established the proof. Now, while I'm talking about Yana, Carla who falaqa Yemeni

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for me,

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the quality of

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the audience will be

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what I can really mean.

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Okay.

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If he has no proof, the judge will say, you're entitled to have him take an oath of denial.

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If the claimant demands, the judge will ask the defendant to take the oath and thereby be acquitted. This is because the Messenger of Allah sallallahu Sallam said, if people were given whatever they claimed in disputes, some people would claim the lives and wealth of others. But the oath of denial must be taken by the defendant, that is actually, the Prophet is saying here, the oath of denial is not to be given to the claimant, because anyone can take the oath, and then claim whatever they want the office to be given to the defendant. But what the Hobbes is saying that you're not reading in the, you know, waving of the Hobbes's, as they, you know, element it down. That's why there is the,

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you know, sometimes there's heavy reports and

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I believe that cannot be in

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an anchor, but the proof will be the duty of the claimant or would be on the claimants, responsibility of the claimant, and both of denial will be given to the defendant. So, that is that is the case. So, you are the claimant, you came and said, You know, this person resides in this property, but it is mine.

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He is residing in this property with his family. The property is mine. We will tell you establish your proof. Well, what is your proof? He will say, Here are two trustworthy witnesses

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who attended the basically contract of sale when he sold me this property.

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Okay, good.

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What if you have no proof? And you say, I had the document I lost.

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But what law he in his mind? You know, then what do you do?

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In this case? Just the piano because the ultimate thing, you know, the bedrock of the Islamic system is what? justice?

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You're trying to reach justice by, by any means possible.

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You are counting that human beings no matter how wicked they are, they have something good inside them. Like you're trying to tap into that. You say to the defendant Deacon owes, someone would say, what does that mean? You know, taking holes? Yes. Because this is the deeper

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This is the meaning of a moose, the deeper the Dipsy in heaven, the hellfire. And, in fact, there are reports of people being reminded during the court proceedings of the Hadith of the Prophet Solomon, both of the immediate moves to defer the dipsea into the Hellfire and about you know, the gravity of this, and basically walking away again, and you know, or like, testifying against themselves, in this case, so. So you will, you will say to the defendant, okay, the claimant was not able to establish proof, would you take an oath that this house is actually yours?

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Would you take it home, this house is actually yours.

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If he took the oath that said,

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that, you know, he gets to keep it, because the claimant did not establish proof. And he took an oath of denial.

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If he did not take an oath. That's what the chief will talk about. Now, what if he did not take those refused to take those,

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then he says, We're not going to add me in what I would die.

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Were in knuckle ibans. Or

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if the defendant declines to take the oath and passes it back to the claimant, the judge will demand that the claimant take the oath. And if he does, he should judge in his favor. However, if the claimant, also the clients to take the oath, the judge will dismiss them both, dismiss them both. What does that mean? Keep in mind,

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before that, we said that the claimant has asked for the defendant to take the oath, the judge does not automatically say to the defendant to take the oath, until the claimant asks for the defendant to take those. Why is that, because the claimant won't have that chance once.

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He can't bring him back to court to demand another oath, he will have that chance once he cannot bring him back to court about the same that will be double jeopardy, about the same case, to take another one. So he has to request winning, like the claimant, because he's entitled to it once that change.

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Now,

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this position that he's saying here, so that he resides in this, the claimant game, this is my house failed to produce proof. The president in the house was asked to take an oath, the resident refused to take an oath.

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He's saying, and that is the weaker position in the mother, which to me is a very good position.

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He's saying that

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when that when the defendant refuses to take the oath, the oath will go back to the claimant.

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If the claimant now to exit, because the claimant initially did not take an oath, he just made a claim.

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And then when he failed to produce proof, sufficient, that is, because he can produce proof, but there's not sufficient sufficient proof. Okay. But when he fails to produce sufficient proof, then

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whether the host will be given first to the defendant.

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And if the defendant takes the oath, but since he has possession of the property, he took the oath, the claimant could not establish the proof. But if he denies if he declines to take the oaths then the oath goes back.

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To the claimant, those goes back to the claimant, and he will have to take the oath to take the, you know the property.

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The judge ruled in his favor only when he takes the oath. That is

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the weak position in the market that is he mentioning here in the strong position and another in the authorized position in

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the oath will not go back to the claim.

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Why is that all of this is because of this hobbies?

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Well, I can have yamina, harder and more data.

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But the oath, the oath,

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we'll be

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on

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that defendant,

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the defendant, the author would be on the defendant, in the authorize the view of the man, they took this the heart and the said, there is no oath for the claimant to have this does not talk about an oath for the claimant, the claimant has to produce proof, but does not take an oath. So the oath would be only for the defendant. If the defendant then declines, then we will give the claimant the property because a new cool denial to take the oath or declining to take the oath of refusal is an indication

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that it is not his property, why is he not taking those?

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Keep in mind, that it is very possible

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with people who are extremely, extremely righteous, that they would decline in taking the oath,

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despite being entitled

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kind of actually happened the ones when

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they

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bought something from the lab, Norma, that was defective.

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And they went off man, horse man, suicide said he bought he sold it to me now. And that is the fact that

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he said, No, I did not. man said, Would you take an oath?

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That it was not that he did that, that he didn't know it was the factor of normal decline?

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This is normal. It's not, you know, it's not you and I.

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So it is very likely that because they used to, basically glorify law to such an extent that they would not take an oath, even if they would lose money, even if you lose a case. Just taking an oath by Allah subhanaw taala, that makes them shiver. So you he would not take those. And he lost the case, just because of his screw philosophy. That's because of his cautiousness

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that he wouldn't actually take the hose. So

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that, you know, in in the authorized position of the mouth. Yes, it looks like this is what it is that he said, Well, I cannot even hold on

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the oath would be on the defendant. But this understanding that, you know, based on this position, that the oath would go back to the claimant is considering what that the defendant may be afraid of taking deals because he's unsure

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or because he's too pious to take the oath.

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send it back to the claimant, because he is making a claim this is an in the defendants position, he is making a claim. And he hasn't taken an oath yet. It is only fair that we send it back to the claimant take the oath. Okay, you're asking the defendant to take the oath, you fail to produce proof. You asked the defendant to take notes. He did not take you take it. And once you take it take the property

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now.

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So I actually like that position. It's not the authorized position.

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If they both the client taking the oath, what happens? he dismisses them. What does that mean?

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That defendant defendant takes

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it isn't the position. It isn't his position. So he keeps Yes.

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And then the SEC said, When can I call you I hadn't been home avianna How can I be her little

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Die. If they both have proof, He will judge in favor of the claimant, He will judge in favor of the claimant. This is another also interesting point. So you have the you know, the defendant who resides in this house, the claimant established the proof that they own the house, the defendant established an equal proof that they own the house. Okay, that's conflict of proofs now.

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Out of the bayonet. So what do we do now? If the proofs are equal, then

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he says, will you give it to the claimant? Keep in mind that there is another position in the matter, which is not

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that we,

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which is not that weak? You know, you can't even call it, you know, I think I give it like a capital A to

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hear, because it is it is actually a strong position like it is. It competes with this position, that you will give it to the defendant. And that's the position that I believe in, you give it to the defendant, you don't give it to the claimant of the established equal proves why. So what is the rationale behind both positions? Well, the position that I support, he give it to the defendant as obvious, because he has yet plus the union, yet is what position he is in possession of this

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property. The unit has proof, he has both, and the claimant has only what the unit

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but he doesn't have that. Okay, so that's clear. That's easy. So why are the other scholars saying that you give it to the claimant?

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Because he wouldn't have come

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unless they, you know, he had the confidence, he wouldn't have come to court, unless he had the confidence that there is injustice here, that the person who is in possession of this property is

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and then they say that if you are in possession of the property that producing proof would be easier on you and things of that tarda on the claim and so, anyway, but at the end of the day, it seems that the other position in the mouth have is stronger, if you have yet then if you are in position and you have proof, you beat the person who has the you know, on the but does not have Yeah.

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Okay, next scenario, both of them have possession of the item, how come holding one garments from two different ends residing in the same household?

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Both are residing in this household?

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Oh, yeah, there is a part of the one person here between them is when

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Rola who called kozma fee will come and

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females Academy, if the person who is in possession of the disputed property acknowledges that it is owned by another party, then that party instead of the one who possesses it

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will be the claimants opponent. Okay. So the claimant came and said, You know, this house as my,

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the defendants that is in possession will say, no, this house is Texas, which is a third party, not the claimant or the defendant. It is easy, it's simple, the claimant will be the opponent to the heartsmart the claimant will be ex not the one in position. But

00:33:58--> 00:34:35

then the talks about the second scenario, both of them are in position with Fannie and takuna via the Hema for in Canada, the hobbema beginner hakimullah who will be the second both of them have physical position. In this case, if either one of them has proof of his entitlement to the disputed property, the judge will judge in his favor on the basis of that proof on the basis of that proof. So, both of them are you know, they are living in this house together. One has proof one does not give it to the one who has proof

00:34:37--> 00:34:37

okay.

00:34:39--> 00:34:39

When

00:34:41--> 00:34:44

I would have put my baby in a 10 course he might be now Huma.

00:34:46--> 00:34:46

Huma

00:34:48--> 00:34:59

will be if neither of them has proved or if they both have proved it will be divided between them. Each of them will take an oath concerning that one half

00:35:00--> 00:35:14

He is rented, okay. They both live in this house, each one of them produce proof or they could not produce proof neither one of them was able to produce proof. Then what do we do? split it.

00:35:17--> 00:35:22

Give each one of them half of it. That's justice. It's, you know, however,

00:35:24--> 00:35:24

then

00:35:26--> 00:35:31

each one of them will take an oath to deserve the one half. We're in a dire

00:35:32--> 00:36:24

fairness for her whenever Yana Cosima Bina, Houma. What do you mean when Hannah Medina's if one of them claims to own the entire property, while the other claims to own one half of it, but there is no proof, then it will be divided between them, the one who claims one half will be responsible for taking the oath, the one who claims one half would be responsible for taking those. So they both live here, one came and said, we could own it. One said, I own it alone, I don't own it, then who's going to, we will split it between them. Because they have position and they fail to produce proof. So we will split it between them. Okay.

00:36:27--> 00:36:39

Who takes the oath, in this case, the person who claimed that he co owns it will take though he's the weaker party in this weaker party, because the default is that one person owns.

00:36:41--> 00:36:54

The default is that a there is no partnership and one person owns it. So if one someone comes and says it's all my, and someone came, came and said, We call on it, the person who says we call on it when he would have to,

00:36:55--> 00:37:10

because he's admitting that the other person owns part of it. So, he will have these admitting that the other person owns half of it. And we will give Him we will give the other person half of it right.

00:37:12--> 00:37:32

So why do we ask the other person for an oath, if, if the other guy is admitting already that he or he owns half of it. So we will not ask him for the oath, we will ask the person who says we go on to take an oath to deserve one half of it to deserve one half of it.

00:37:33--> 00:38:06

Then the sheikh said and this is the you may disagree with this. But keep in mind this is this is one, there could be another mother that has different thoughts about this. When can Oklahoma you know turn hockey, maybe muddy muddy? or could they both have proved it will be given to the one who claims to own the entire property? Because that's the default is that one of them columns and there is no partnership. Otherwise there would be some proof of that partnership.

00:38:08--> 00:38:26

Otherwise, people receive property. people receive property through inheritance and they may not have proofs and stuff. But if there was partnership between them, likely there would be some document or some proof witnesses that there is actually partnership here.

00:38:28--> 00:38:46

A third is okay. This is the second scenario. What about the third scenario, neither of them hazard or is in possession of it. third scenario can take una via de Ferran Carnaby, Halle Hardy, Emma, Hema sobre como la who

00:38:47--> 00:39:19

were in Kerala mama sobre, la te fi are they him to third it is in possession of a third party. If the possessor acknowledges that one of them or another person owns it, then the one who he acknowledges as the owner will be in the position of the one who has possession. If he acknowledges that they both own it, it will be like the example where they both are in possession of the disputed property. So

00:39:21--> 00:39:37

you know, they are both claiming that this house is theirs. Someone else lives in that house, not the claimant or defendant, the third party that is another house without third party says

00:39:38--> 00:39:52

that third parties, there is no claimant or defendant here. They're both claimants because no one is in position to be the defendant. For parties and position. That's it party said it belongs to x.

00:39:54--> 00:39:58

x becomes a here, the one who has possession

00:39:59--> 00:39:59

so

00:40:00--> 00:40:01

Y

00:40:02--> 00:40:07

has to establish the proof x only need to take an oath. Is that clear?

00:40:08--> 00:40:28

Okay, if that person who lives in the House said it belongs to them both, then it would be like in a scenario where both are in possession of it. We will ask them for proof that they produce or fade. Both produce both fame. What do we do? split?

00:40:30--> 00:40:30

Okay.

00:40:33--> 00:40:37

What if the person who lives in this house and I don't know who owns it?

00:40:38--> 00:40:41

When Carl Burnham in Houma

00:40:42--> 00:40:52

when he had he may be in a beginner fella who were in mantequilla, Vienna, Harlequin had in Vienna Astana rally, I mean, from encourages.

00:40:55--> 00:41:22

If he says I don't know which one of them is the owner, and one of them has proved it will be is, of course, they both have both have no proof. Or if they both have proof, they will cast lots to determine which one will take the oath, he whose lot comes out first, we'll take the oath and thereby take the disputed property

00:41:31--> 00:41:32

or

00:41:33--> 00:41:34

you could split it

00:41:36--> 00:41:43

right. But this is this is the position and the mother. In this case, he will say

00:41:44--> 00:41:46

he will say, I don't know.

00:41:48--> 00:41:49

And they have no proof.

00:41:52--> 00:41:56

So we will tell them, okay, then castbox.

00:41:57--> 00:42:02

And that is that is also justice. Because that's random

00:42:04--> 00:42:04

cast lots

00:42:06--> 00:42:13

and who have who's who's whoever's lock comes out, then we'll take the oath.

00:42:15--> 00:42:16

And these are

00:42:23--> 00:42:36

okay, that's that's pretty much that chapter in this particular area, the discuss also some other issues, a couple of issues that we will talk about before we come to conclusion here.

00:42:54--> 00:42:56

One of the judge

00:42:59--> 00:43:01

what is the ruler asks the

00:43:09--> 00:43:15

maybe this is going to be like too long talk about this. But when it comes to

00:43:17--> 00:43:18

you know,

00:43:19--> 00:43:30

people having different mazahub when is it in the Hungary? When is it can you nullify the ruling of a different judge?

00:43:32--> 00:43:36

When is it can you nullify the ruling of a different judge?

00:43:37--> 00:43:42

If he have his ruling was in conflict with the Koran or sentence

00:43:44--> 00:44:01

or religion now, if his ruling is in conflict with the book of Allah, the son that clear, clear, authentic son of the profits on Sunday mornings now then you have the view, you nullify the

00:44:04--> 00:44:06

ruling. Okay.

00:44:08--> 00:44:18

But what if someone comes to you comes to you where you know, with a marriage contract, for instance,

00:44:21--> 00:44:26

that happened without a guardian. Can you as a judge nullify this

00:44:28--> 00:44:31

marriage contract that happened without a guardian?

00:44:37--> 00:44:41

If you are Hanbury this marriage is faster or

00:44:43--> 00:44:46

faster. You know, it's it's it's invalid.

00:44:49--> 00:44:55

Modern handling. No. Yes. So every woman has to have a guardian.

00:44:57--> 00:44:59

Guardian If it is not, you know,

00:45:00--> 00:45:09

Remember that it will be the Imam or the Mammon says in the sense of the ruler for the deputies of the amount and the judges and so on.

00:45:12--> 00:45:13

So

00:45:14--> 00:45:29

was okay. It's a little bit tricky here. Because if that fuel then gets established merely by merely by the claim of the couple,

00:45:30--> 00:45:38

you have the right to pass it, you have the option to accept it or rejected

00:45:39--> 00:45:48

because their claim is not sufficient to establish that a full blown judge, which would be in this case hanafy Dutch

00:45:50--> 00:46:07

ratified that marriage or Saha accepted validated that marriage. Okay. Now, if they have a document from that judge, proving or they have weaknesses, proving

00:46:08--> 00:46:14

that that judge did actually validate their marriage.

00:46:17--> 00:46:19

What do you have options?

00:46:21--> 00:46:23

No, you don't have options? Yeah.

00:46:25--> 00:46:25

Why?

00:46:31--> 00:46:35

No, he doesn't have the option to nullify it. He cannot modify it.

00:46:39--> 00:46:40

No.

00:46:44--> 00:46:57

He is in this case, he doesn't have the option to nullify he will have to enforce it. It is basically an enforceable marriage, even though in his book.

00:46:58--> 00:47:07

Yes. Even though in his book, it is not a valid marriage, that jobs will have to himself enforce it.

00:47:09--> 00:47:27

Even though he believes in his book, this is not a valid marriage, but he wouldn't have to enforce it. Why? Because it has been established to be for him. That illegitimate judge validated.

00:47:31--> 00:47:35

According to the other mother, for the death in the judge validated,

00:47:36--> 00:47:44

yes, but the first case where they do not have a full blown foundation and why does it Why are they requiring that?

00:47:46--> 00:47:48

I'm trying to obviously make context

00:47:50--> 00:47:57

because it is not ratified by a judge and reverting a judge ruling is a is

00:47:58--> 00:48:13

is not acceptable unless they have basically departed from the clear, established Sunnah. And Lanny kehilla be well, he is controversial, does the whole thing

00:48:15--> 00:48:20

then there is no marriage without a guardian is controversial.

00:48:21--> 00:48:25

The traceability of this to the prophet SAW that it was controversial. Now,

00:48:27--> 00:48:30

there, if this was validated by a judge,

00:48:33--> 00:48:35

you do not reverse

00:48:36--> 00:48:42

the judges validation of a marriage without a guardian.

00:48:43--> 00:49:08

Because the ruling of the judge, you know, it's it's a validation by a judge. That is huge. You can't reverse the judges rulings, because that would lead to chaos. Except if the judge makes a ruling, and that's why you have appeals and stuff like that, the judge makes a ruling that is counter to chaos is in conflict with the clear cut.

00:49:09--> 00:49:17

course and this is controversial traceability of this hadith is controversial.

00:49:19--> 00:49:28

So, that is why but if there was no judge and they just got married without where they no judge validated this

00:49:30--> 00:49:37

marriage, then they come to you as a judge, then you have the option.

00:49:39--> 00:49:44

And basically, if they are not having a good marriage, then you could just share

00:49:49--> 00:49:50

church.

00:49:51--> 00:49:59

They came to the judge because they wanted to validate the marriage because they heard that someone says you guys are not married, for instance.

00:50:01--> 00:50:04

They want the judge to validate the marriage for them.

00:50:10--> 00:50:54

Of course, of course, keep in mind, the fact that I can see how this is different from sin, and, you know, cloud mousy and so on. Of course, if there is they had in their mind that they are married, they are not be they're not going to be in Xena, it is in their marriage that there is in their mind, and that they truly believe that they are married. So no one was saying that they would be in Xena, no one would be saying that their kids are not going to be their kids are attributed to them. No one is saying this. It just you know, you know, it's the difference in the conditions of marriage. These are the conditions that are required for the marriage to be valid according to the

00:50:54--> 00:51:06

combat emails if you did not respect to them. So in the Hanbury book, which is also the medical book, and also the FA book, this marriage is not about marriage, although the medic is have

00:51:08--> 00:51:11

some new ones this quarter and new ones the scores over this, but

00:51:13--> 00:51:25

but they weren't, you know, if it is validated by a judge, they will not reverse the judge's ruling, you do not reverse a judge's ruling unless it is in conflict with a clear cut?

00:51:26--> 00:51:26

Or

00:51:28--> 00:51:30

what about what situations does a couple

00:51:32--> 00:51:39

have to be on the same method, for example, as the judge, or I'm living in the country in the country is

00:51:40--> 00:51:42

the court should I

00:51:43--> 00:51:44

should I

00:51:47--> 00:51:49

basically Well, my life,

00:51:50--> 00:52:12

the laws because I want to be judged according to that person. You know, you don't have to you don't have to endure personal conduct in your personal practice. But in anything that will bring you close to the court system. You want to be acquainted with the particular math of

00:52:14--> 00:52:20

that country and the laws of that country just to avoid trouble with the law.

00:52:22--> 00:52:23

A summation

00:52:25--> 00:52:30

i remember a while back, we talked about this, but keep in mind that, you know, in our times, I'm sorry.

00:52:32--> 00:52:37

Keep in mind that in our times the most of the most countries,

00:52:38--> 00:52:56

the the the SELECT FROM THE DIFFERENT. Yes, as I say based on a while back, we talked about this case in India, where there was a married couple and the father of the son rake the wife. And because of that the judges ruled that their marriage could no longer be valid.

00:52:57--> 00:52:58

Could they just not

00:53:00--> 00:53:03

agree to that? I mean, it's gonna break up a family. Right. So.

00:53:05--> 00:53:09

Okay, so can they just not agree to?

00:53:13--> 00:53:18

Have they are shafa Yeah. And they truly believe in the Chafee position in this regard.

00:53:20--> 00:53:22

It is disliked for them.

00:53:23--> 00:53:25

This like for them? You know.

00:53:26--> 00:53:34

So, the ruling of the judge, does it make the thing in and of itself,

00:53:35--> 00:53:42

that there's change that ruling of the matter in and of itself or not?

00:53:43--> 00:53:45

So our jobs, for instance,

00:53:49--> 00:54:00

says that this marriage is valid. Does it change the ruling that is make it valid or invalid? You know, certainly we're not talking about a departure from the consensus here.

00:54:01--> 00:54:02

Let us say

00:54:03--> 00:54:14

that a judge deemed your marriage valid. The judges it's they have changed. And the same judge now thinks your marriage is invalid.

00:54:15--> 00:54:16

That's not your problem.

00:54:19--> 00:54:20

Your marriage instead?

00:54:22--> 00:54:24

Let's say a judge

00:54:26--> 00:54:28

told that monster had told him

00:54:29--> 00:54:32

that your wife is not your wife anymore.

00:54:34--> 00:54:36

Who believes that three divorces are one

00:54:39--> 00:54:46

that he does believe three divorces are three. He told them the wife is not your wife anymore.

00:54:48--> 00:54:50

Is that's what stands

00:54:52--> 00:54:53

now,

00:54:54--> 00:54:59

is that much sad? Now bound to x

00:55:00--> 00:55:01

After the judge's

00:55:03--> 00:55:03

ruling

00:55:05--> 00:55:12

for VA Yes, he the judge can enforce this. Phil Barton, what is

00:55:13--> 00:55:15

what is the ruling for this one status?

00:55:17--> 00:55:18

They say your current level

00:55:20--> 00:55:21

and you heard it

00:55:22--> 00:55:25

and Harkin is disliked for him.

00:55:27--> 00:55:30

It's like for him to violate the order

00:55:32--> 00:55:36

even for Barton is disliked, but it is not

00:55:37--> 00:55:46

like if he continues to be with this woman, after the judge passed the ruling that it is not his wife anymore.

00:55:47--> 00:55:50

It is not Haram is this like

00:55:52--> 00:55:54

the monster themselves?

00:55:57--> 00:56:01

himself, if he changes he has to follow his.

00:56:02--> 00:56:04

Like if he married a woman

00:56:06--> 00:56:16

according to want to have in his dad changes, he has to follow his dad, his staff, he has to correct renew the contractor. Follow his it's there.

00:56:21--> 00:56:30

But in the case, if someone judges for harm, buddy, for instance, you know, like if if a Hanbury

00:56:32--> 00:56:33

Sam's

00:56:34--> 00:56:38

metric does matter if a man sells meat that is not

00:56:41--> 00:56:41

you know,

00:56:43--> 00:56:44

if somebody

00:56:46--> 00:56:47

purchases meat from a chef

00:56:49--> 00:56:56

and the name of Allah was not mentioned on this May, for the shaft is made, it's harder for the Hambali, this me does not

00:56:59--> 00:57:05

have the job she goes and validates the purchase. The Hanbury does not have the option

00:57:06--> 00:57:10

in this case to say that I don't owe him money.

00:57:11--> 00:57:33

Because he sold me hydromet which has no value. He cannot even lie in an oath or equivocate in an oath to say to say that I owe him no money. Because Because of his it's the hat that actually the meat was not.

00:57:36--> 00:57:40

Can Okay, so you know that

00:57:42--> 00:57:46

the hanafy is gift show father, right preemption two neighbors,

00:57:47--> 00:57:47

right.

00:57:50--> 00:58:34

The Hanbury is and the Joe Moore, when the when the borders are set between and there is no common property between them that they share and the border. They don't want to give pre write preemption to neighbors. The neighbor can sell his house to whomever he wants. That's the hafeez give hackers so far. Bill, do you know the right to preemption neighbors? He has? He gets first dibs on this house, because he is the neighbor according to the HANA fees. Now, if you are somebody and your neighbor sells the house, sells the house to someone else. And you know that you live

00:58:35--> 00:58:38

in a hanafy district, the judges hanafy

00:58:39--> 00:58:45

can you as somebody go and claim the rights of preemption? It's controversial.

00:58:47--> 00:59:11

Controversial, you have anything mayor and Allah said you cannot. Because in your book, you're asking for something that you're not entitled to. It's not your right. But he says he agrees with the rest of the ham bodies. That without you asking, if the judge gave it to you, you can take it

00:59:12--> 00:59:15

but you can't ask for it because it's not yours.

00:59:18--> 00:59:18

So

00:59:20--> 00:59:22

in the case that I was mentioning, though,

00:59:23--> 00:59:32

how can someone's ill intentions and actions then cause you to have to be bound by a ruling that like, it just seemed kind of a therapy remember?

00:59:33--> 00:59:50

Like why would a judge look at that case and be like, okay, your father had, you know, relations with your wife. So now that's it like your marriage is nullified like it wasn't done. It's not like they were married before they got divorced. Now this son wants to know, but this is not an intention or anything.

00:59:51--> 00:59:56

intentions on the part of the father who raped a woman or intentions on the part of the judge

00:59:57--> 00:59:59

or the father like why actually

01:00:00--> 01:00:02

Because, because you can.

01:00:04--> 01:00:09

Because at the heart of the matter if you like, you can't

01:00:10--> 01:00:14

basically you can't be married to a woman with whom your father

01:00:16--> 01:00:18

had sex not just

01:00:19--> 01:00:24

her been married to, but it was done or not.

01:00:27--> 01:00:27

Yeah.

01:00:29--> 01:00:37

That is why it is this controversial point between the different plans. That is why, you know,

01:00:39--> 01:00:45

I personally felt, and this is why I mentioned that, because the higher

01:00:46--> 01:01:04

the for the fee, it's called for you to choose. I personally believe that the honorable Hanafi judges should have basically considered the jaffery position to avoid all the drama that took place in India and causes this all this grief.

01:01:06--> 01:01:27

And just, you know, when when you have like a public case of this nature, just don't be confrontational with the sensibilities of the masses, if there is a way to avoid confrontation, because that confrontation usually does not lead to good places. So what if they just ignored that?

01:01:31--> 01:01:32

Especially

01:01:38--> 01:01:42

if they have if they emigrate to shepway district.

01:01:45--> 01:01:45

Let's

01:01:47--> 01:01:50

stop here and take your questions in the question and answer section.