Tom Facchine – Riyadh al-Saliheen and Women’s Q&A #22

Tom Facchine
AI: Summary © The history of criminal laws in Islamic is discussed, including the use of hadiths and deadly punishments. The importance of proving actions and finding evidence is emphasized, as well as the need for strong legal grounds to enforce criminal behavior. The conversation also touches on issues such as premeditated births and custody, and the need for cultural expectations to avoid undue burden on anyone. The conversation ends with a mention of a book and a follow-up meeting.
AI: Transcript ©
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Bismillah R Rahman r Rahim Al hamdu Lillahi Rabbil Alameen wa salatu salam ala MBA almost serene. The being of equivalents in a Muhammad Ali here for Salah was Curtis new Allahumma alumna we may have farriner on Downton Abbey

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was even though not

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everybody, hope everybody's doing well.

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Let's get right into it. Last time, we had quite a long Hadith.

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And it was packed full with lessons, things to discuss.

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Today, we're going to have a much shorter Hadith, but it's going to touch on some really deep, hot button issues that need unpacking.

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And so we will do what we can.

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We're in the chapter of repentance of Toba,

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the 10th Hadith, in this particular chapter,

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the 22nd Hadith overall.

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The translation that we've been reading from has this hadith been on the authority of Abu jayed Imran even Sainath was I reported that a woman from Johanna Johanna is in the outskirts of Medina, in the mountains near FIFRA.

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Came to the messenger of allah sallallahu alayhi wa salam who was pregnant as a result of fornication. In this case, the better translation is adultery. There is a distinction between fornication and adultery. In Islamic law, fornication is done when someone has no sexual experience. And adultery is done.

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After somebody has sexual experience, either through a marriage or otherwise.

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So she was pregnant as a result of adultery.

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She said to the Prophet, O Messenger of Allah, I have broken a head had is a limit set by Allah subhanaw taala.

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So carry out the punishment on me.

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The Prophet salallahu Salam

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summoned her guardian and said, treat her well. When she gives birth. Bring her back to me.

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He did that and the prophets, Allah Lovelace and I'm commanded that her garment be tied tightly around her and then he commanded that she be stoned. Then he prayed over He led her Janaza prayer.

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I'm off Rhodiola Han, who said to him, do you pray over her messenger of Allah when she committed adultery? He replied, she repented with such a repentance, that if it were to be divided out among 70 of the people of Medina, it would be enough for all of them. Can you think of anything better than her offering herself to Allah, the mighty and majestic, this hadith is originally in Sahih Muslim, there's actually several

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variants of this hadith that give you different details of the story. In other versions of this hadith give a little bit more of a backstory that she came as soon as she was, as soon as she had committed adultery to the prophesy setup. And she said, I've done this thing, and he sent her away.

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And then she came back

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and asked for the same thing said I want the punishment.

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I'm pregnant.

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And then the promise I said, I'm said, Go away, until you deliver.

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And then she came back after the child was delivered, and said, I want the punishment.

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And the promise I sort of turned her away again, and said go away, until you've weaned the child.

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And then after she when the child, she came back yet again,

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and demanded of the Prophet Muhammad SAW I said I'm Punisher

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to which at that point, he obliged her and like they performed the punishment on her.

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So we need to talk

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about what these punishments are, what their role is, in Islamic law have some misconceptions. How do we reconcile

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their existence, their performance, with the Mercy of Allah? This, this hadith is in the chapter of repentance. Some people who would be non Muslims would read this with heart, they Oh my god, like, what is this that you guys believe in? What is it that you're practicing? And it has to be.

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And it has to be situated

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within our

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intellectual and spiritual tradition, as opposed to how it might be heard, in other faith traditions,

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especially the one that's dominant in the place that we live. So first of all, looking at the phenomenon of had punishments in general had, as we said, means a limit that Allah has set. And what it refers to in criminal law is one of the handful of sins that has a judicial punishment attached to it.

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Right. There's only, as I said, a handful of them, adultery,

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murder, burglary,

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banditry, and public intoxication, our cover

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most if not all of them.

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What we have to realize when we talk about

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criminal law,

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in the context of Islamic law,

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is that when we have a discussion in this space, meaning we're living the United States of America,

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we have to

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or we are overcoming

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or responding to what is the Christian historical experience. Most people if you try to tell them about these things, or if they're aware of these things, or if they respond to these things in a disapproving or horrified or surprised way, they are coming from a particularly Christian historical experience, regardless of their commitments of faith, even if they're not a Christian, by devotion, they are a Christian culturally, most of the time. And so there are certain associations that such people are going to have with some aspects of things that are in our tradition, due to their own historical experience.

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In the historical Christian tradition, or historical experience, a judicial punishment is often associated with damnation, and heresy.

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Christianity does not have

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substantive criminal law. It doesn't have a system of punishments, it doesn't have court procedures that are on the books. And so all of these things were left up to the Empires or the political entities of the times. And it also meant that injustice, injustice

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was rampant, and that punishments was often arbitrary, and often personally, or politically motivated.

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We see probably the two most emblematic examples of

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criminal law within the history of the church are the Salem witch trials.

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And the trial of Galileo and other scientists or astronomers like him.

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We have in these two sorts of events, they become typify they've become symbols.

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They have a life that's much larger

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than the immediate historical circumstance.

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When they occurred,

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we see in the Salem witch trials, right when there were a bunch of teenage girls in Salem, Massachusetts, in the pre United States, American history of European colonization

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that there were accusations thrown out.

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That so Ansel was a witch, and then a lot of this thing became a hysteria where people were using this thing to settle personal vendettas

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much like countries around the world today use the terrorism label that the United States kicked off in 2001

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And

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whoever you're against now becomes a terrorist. And that label enables you to do whatever you want to punish them or to settle the score. Such was the label of which in Massachusetts in the 1600s.

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And often was the label of heretic throughout the history of the Christian church.

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Such as Galileo's trial, anybody who was sought to have put forth an idea that contradicted the official standing of the church, whether it was on something that had to do with scripture are not was deemed a heretic, and they weren't punished as such heretics, and they were this is the key point they were understood as being dispatched to hellfire. Right, when they were burning witches at the stake in Massachusetts, they understood them to be

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fulfilling God's role

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in taking part in like their first round of eternal punishment. Right and the same with the heretics. Those who were burned at the stake or were otherwise tortured and killed were understood in the same light

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to be you know, this person is damn their heart is sealed that we know where they're going to go and we're going to dispatch them that their

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Express

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so you have to realize that when Christians and people are Oh, yeah, Crusades are another good example data, mashallah, I'm glad you brought that up. I was reading just the other night about the Fourth Crusade, especially during the Fourth Crusade.

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Constantinople now Istanbul was sacked and ransacked and atrocities happened. Now this was the center of the Orthodox world, who sacked Constantinople the first time, it was the it was the Franks. It was the Romans.

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You know, those who came from it was the Crusaders essentially.

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And they committed unspeakable atrocities

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in the name of whatever their project was, but we can tell from the cooperation that some of the crusading parties enlisted from disaffected Muslim groups, and even the wrath that they had, and the opportunistic murder and theft and pillage of other Christians lands. Right? This is something that was a ruse, it was a, the fact that they seem to be you know, reclaiming the Holy Land was a convenient cover for other sort of objectives and goals. But that's also a very good example. So we have maybe this tripartite, or trifecta of historical experience, you come from the Christian world. And you're basically primed to see any,

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you know, either expression of criminal law, punishing people for sin,

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or otherwise exacting any sort of violence against anybody for religious or religious reasons, you are primed to see that through the lens of oppression,

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and arbitrariness and unfairness. Due to this historical experience. If we think about things on an abstract level, we know that we have to be careful with the lessons that we take from that historical experience, someone or some culture or some regions historical experience is particular. And you have to be careful when you're extending it to the outside world. The possibility

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that law might be unfair

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doesn't mean that there can be no law.

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Similarly, the possibility of a just law being unfairly enforced, doesn't mean that there can be no enforcement of law.

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These are things that are problems, but their

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particular problems that have remedies to them. You can't as we say, in English, throw out the baby with the bathwater.

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There's also something which is particularly kind of colonial about the assumption that your experience has to be everyone else's experience. Right? Muslims deal with this when talking about Christian we're talking to Christians, Christians, often kind of see Muslims as like their little brother, who's kind of like coming along.

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Christianity is now enlightened, because it had the Reformation. And Muslims are going through their reformation and they'll grow up one day and they'll stop being so extreme and stop being so dogmatic

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This is kind of a line, right? It's patronizing, but more than patronizing, it assumes that my experience of the world

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is what everybody else is experiencing, and will experience. And so if I'm on a timeline, I'm just further along, and you're necessarily marching behind me.

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Right? This is a huge problem, to assume that my historical experience is the same as everybody else's historical experience.

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And so we find today we have not only Muslims, such as ourselves, that live in this context,

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we can literally it's palpable, these sorts of feelings, this suspicion of criminal law, with religion behind it, this suspicion of a religion or a faith that has courts in that, you know, has sort of verdicts against this person or that person, religiously motivated law.

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And the judiciary, there's a suspicion that we can actually taste in the air from living in the space. But even Muslims who live abroad, in nominally Muslim spaces,

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often can kind of drink in this historical experience, as well through movies, through books through all sorts of things. It's pervasive, especially if many of the movies and books and TV shows that you are consuming are from the West, they're going to have Western sensibilities.

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So all that being said, now, we have to come back to look at our own tradition,

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criminal law within the Islamic context, the dimensions of Islamic fluid punishments, what is is there any commonality between this sort of baggage that Christian historical experiences carrying with it? What are the points of commonality? What are the points of departure and difference? Where is it fair to compare and whereas no comparison adequate.

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The one of the first aspects of Islamic legal punishments, such as stoning, is to provide a deterrent. A law says this explicitly, and sort of Mati that NiCad. And mean Allah says, as a deterrent from Allah.

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Some legal theorists have said that one of the features of modern law as opposed to pre modern law is that in modern law, sometimes there's not laws on the books, just to be on the books to scare people. Right? We assume that if a law, a law is in place, that it has to be implemented, and it has to catch everybody who is violating it. Whereas many legal scholars, they say that in many pre modern systems of law, there are plenty of laws that are on the books that are hardly enforceable or barely enforceable,

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for the sole purpose of deterring, and scaring and making somebody think twice, before they partake in a certain action.

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The perspective that would kind of retort against this logic of deterrence is what I call the legalization party, right? People who often who argue for things on the scope of legalization,

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we often hear people talking about prohibition, United States of America actually banned the commercial sale, not the private consumption, but the commercial sale of alcohol for 10 years, about 100 years ago. And this in our culture has become kind of a symbol for why this sort of moralizing and religiously guided legislation can't work.

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And it's kind of become a symbol of this failed kind of

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pious ism.

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Upon further or closer inspection, however, we see that there's kind of a mistake being made,

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that the assumption is that such a deterrent or such a lot. It's not necessarily to prevent every single case of transgression from happening, but it is to reduce the harm.

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And so now, even some historians are coming around to admitting that prohibition, according to the goals of the movement was actually a success. It reduced alcohol consumption in the United States by a third,

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which is extremely significant given the narrowness and the

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relatively small time nature of the prohibition movement.

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So when it comes to having gruesome punishments on the books, we can't make the assault

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mission that Allah wants us to identify and discover and find and capture and punish every single person who is transgressing that law.

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That is not accurate. Allah has placed these things here and made the punishments yes, indeed gruesome and graphic in order to scare people

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to make them reconsider to make them think twice before engaging in that activity. And he has said so directly in the Quran. This point is even further reinforced if we look into procedural law

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within Islamic criminal law.

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There's a saying within, for amongst, I should say Islamic legal scholars that the shittiest stops at your doorstep.

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Procedurally, evidence that is obtained through spying and through invasion of privacy is not admissible evidence. In an Islamic court, there's a famous story where I'm up when he was the Khalifa. He heard some

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carousing, going on some merrymaking going on behind someone's wall. He actually climbed the wall, and he found that there was a man there sitting, drinking wine, having some musicians play for him. And Omar was very upset.

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And he started yelling at the guy. And the guy retorted, what are you even doing here?

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You should have never climbed my wall in the first place. And then Omar kind of realized that he had gotten carried away and he left. He had no right to be there. And he could not fairly pursue that case, because it would have been inadmissible evidence.

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The show yeah, is not

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trying to police.

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When we talk about criminal law, it's not trying to police your private life, so much as it is trying to establish a base level of public order, and public piety.

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And we can notice this, if we look at the different punishments that exist, the harsher punishments have to do with things that are much more public in nature,

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such as banditry, and murder. And things that are

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not necessarily noticeable, such as intoxication, and even fornication

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are very, very, very hard, if not impossible to even prove in court.

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There's a reason why the highest threshold of evidence is required for these sorts of cases like in the Hadith, when it comes to fornication and adultery.

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The highest number of witnesses, the most graphic, direct witnessing is required.

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Literally, you have to observe penetration, you can't just see someone walk into someone's houses, hear certain sounds, whatever. That's not admissible in an Islamic court when it comes to proving these sorts of cases. Why? Because these laws are mostly meant to be determined.

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And not to catch everybody.

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This is further enforced by the fact that the Prophet SAW law is set up and it's more emphasized than other versions of the Hadith turned away.

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She approached him at first after she committed adultery, he turned away. He said, Get out of here. He didn't pursue. He didn't send someone to check in on her. At every stage, he didn't say, okay, all right. Now I set my calendar to this date, and she should have given birth by now and go see how she's doing. Let's you know, hold her accountable. No, every single time he was giving her an out, he was giving her an opportunity to get away with it.

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And every single time she rejected

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one

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of our final points about Islamic law and this is a big thing, in distinction to

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how Islamic law is perceived. And how Christian legal sensibility was often enacted historically, is that there is no such thing as extra judicial

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justice, vigilante justice, in Islamic society, everything has to be pursued through the courts and no one except an official court sanctioned by the state has any power to enforce anything.

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So what we see here, and this is the point of the Hadith when it comes to our Omar's comment and his assumption

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that what she did on the outside her action, her sin that reflected a hypocrisy or a lack of faith that was in her inside

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and not necessarily just elapse, and the prophets Allah salaam correction

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and testifies to the sincerity of her repentance.

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We see that the primary function

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of these who dude of these criminal punishments that are very, very hard to prove, without a confession, if not impossible, especially adultery and fornication, many scholars and jurists actually remark in their books, that there has never been, to their knowledge, a case of someone being convicted rightfully, for adultery or fornication, except by their own confession.

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That's because the nature of this confession

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is and the nature of this punishment is that it is an expiation

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it is a punishment that is a redemption.

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It is not in the sense of the witch trials or the the heretics burning at the stake, it is not

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a prelude to a punishment in the afterlife. No, it is front loading your difficulty and your punishment so that you do not have to experience punishment in the afterlife. And the Prophet SAW I sometimes comments reflect this completely.

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Such logic is lost upon people who don't believe in an afterlife in the first place. Which is why the platitude or the common conventional wisdom that it doesn't matter what you believe,

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as long as you're a nice person, as long as you're a good person is a very, very thin concept and doesn't really bear out when we test it and push the idea.

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Because somebody who believes in an afterlife

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has a fundamentally different orientation to the world than someone who does not believe in an afterlife. Someone who does not believe in an afterlife literally believes that this is all that we have.

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This life and so life becomes the most sacred thing, anything that removes or ends or shortens or threatens that life. Whether it's self sacrifice sometimes, or turning yourself in or experiencing a punishment like this is incomprehensible.

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Because to wish for your own extinction

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is kind of the worst possible thing that could happen.

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Whereas the person who believes in an afterlife, they realized that this is just a taste

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a small segment of our lives. And therefore this small segment of our lives can easily be bartered or traded, or

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otherwise compromised for the sake of our longer eternal life.

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We can put up with things in this life because we know that something else was coming afterwards.

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Even when it goes against our material interests like it does for this woman in this hobby.

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She wants to live she wants to see the life of her child.

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She wants to see that child grow up of course, these are natural good things.

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But she also knows that the only way to avoid punishment in the afterlife is to experience it in this life. And so she turns herself in seeking that through repentance and she achieves it according to the prophets Eliza

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does anyone have any questions comments concerns

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about any of that?

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If your Toba is sincere

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I think this this happened last week

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where it happens to it what

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if there's a sin

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that was affecting somebody else's right

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if you were not able to make it right.

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Even if you repented expressed regret but it was of the nature where you couldn't repay it. You couldn't make it right.

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That a law might take from your good deeds in order to compensate for that in the afterlife that's possible.

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But for this particular woman and this nature

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of sin, whereas more about yourself.

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Her punishment is over for all intents and purposes

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even the major centers,

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the Prophet saw a setup. He said,

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inertia Attili I hate about it, I mean automatic, said my intercession with Allah is for the major centers of my ummah.

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And the majority position in the with among the scholars of sunnah is that anybody with

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a small amount of faith,

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even if they experienced some punishment in the afterlife, they will be taken away.

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There'll be taken out of that punishment, and they will enter into agenda after having spent some time in punishment.

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From a devout Christian perspective, Jesus asked those without sin to cast the first stone, I guess the prostitute against that's a really good question, Dana.

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Well,

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good, this is awesome. This is really good. So it comes back to the goal of the city

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and the external and the internal and the public and the private.

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Right? So if we are saying cast, the first stone meaning blame,

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we agree with that statement.

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As in, we assume, where that person is going to end up in the afterlife. We agree with that statement. Don't judge that person.

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Don't cast that figurative stone.

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Because all of us have sinned and nobody can tell who Allah is going to forgive and who Allah is not going to forgive

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us for public order.

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Then this is something that has to have punishments, it would never be. Let's take it to its logical conclusion.

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In our society right now, forget Islamic law, forget Christian law.

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If we weren't allowed to punish anyone for a crime

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except if the person doing the punishing was perfect.

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What would that lead to on a societal level?

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That would lead to the entire destruction of justice.

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And the removal of mercy.

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Chaos.

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Anarchy

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in the bad sense.

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Right.

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So there's an internal dimension and external dimension is shitty. Yeah, it's not going to Yeah, I know. I'm glad that you caught that. That the Sharia is not trying to police your your insight.

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It agrees with that statement. If we're saying don't judge that person, don't pretend and the prophesy said I've got angry with people who acted like they knew where that person was going to end up.

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This is the same as the conversation with ARMA.

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Right or assumes he knows where that person is going to end up prophesy sources known another.

00:33:36 --> 00:33:41

But when it comes to establishing public order, there needs to be consequences.

00:33:42 --> 00:33:43

People who kill

00:33:45 --> 00:33:45

people who *

00:33:46 --> 00:33:48

people who burglarize?

00:33:50 --> 00:34:00

Right. Are we going to say let the person who's sinless cast the first stone but the person who's sinless take him to court? No, this is the rights of people.

00:34:03 --> 00:34:06

And so in order for justice, you know, the purpose is that security?

00:34:08 --> 00:34:23

You know, this is this is why I mean, Christianity doesn't really have law to speak of, you know, it doesn't have a legal system. It doesn't have a legal tradition. And so when you hear things from the Christian perspective, you have to take them

00:34:25 --> 00:34:26

as a

00:34:27 --> 00:34:37

private individual guidance, right? If you take that, quote, as a private sort of reprimand of your own internal assumptions completely correct.

00:34:38 --> 00:34:45

If you take it as something to organize society around and achieve security and prosperity, absolutely not.

00:34:48 --> 00:34:54

And from their perspective, why would Jesus then flip over the table the tables with the money changers in the temple?

00:34:57 --> 00:35:00

Right was Jesus not concerned about justice?

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

said Oh,

00:35:02 --> 00:35:03

no, of course he was concerned with justice.

00:35:05 --> 00:35:29

Yes, exactly. Very big difference, which is exactly. And I'm glad that you mentioned that because it's getting to our whole emotional imagery. All of these things are connected our associations with this, what's the imagery that pops into our head when we think about these sorts of things? Yeah, that's exactly what we think. That's what the secular ex Christian mind thinks, when they think about

00:35:30 --> 00:35:38

punishing the adulterer. They think about this woman that's screaming against her will being drugged out of her home by some big dudes with beards. And then they're just you know.

00:35:42 --> 00:35:49

And there's a big market for any sort of news that comes out of the Muslim world that resembles that in any sort of way. This is not the stomach law.

00:35:52 --> 00:36:02

Right? Very different story for somebody who's begging for it. The promise is that on turns or away, turns her away, turns her away. She's begging for what's the promise the lady said I'm supposed to do?

00:36:05 --> 00:36:06

Good.

00:36:10 --> 00:36:16

This is a very rich, rich topic and subject. So if you have any other reflections and questions, please put them in the chat box.

00:36:17 --> 00:36:23

Just for the last few minutes, I'm going to mention some things about we're really close to the end of

00:36:24 --> 00:36:30

the end of our book of marriage, and Islamic law, which means that coming up next is divorce. We're good.

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

So here's a popular issue.

00:36:37 --> 00:36:47

Yeah, exactly. What and which is exactly what the problem is. I said, I'm said in that particular narration, he says, That's why her repentance would have been good for 70 people.

00:36:49 --> 00:36:53

She turned herself over to Allah, is there no more sincere belief than that?

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

So the prophesy someone was correcting our own assumption about what was going on in her heart.

00:37:03 --> 00:37:04

Major

00:37:05 --> 00:37:08

is a wife obligated to serve her husband?

00:37:14 --> 00:37:17

The majority opinion is no she's not obligated to serve her husband.

00:37:18 --> 00:37:48

Okay, I say a caveat here. Say don't don't turn me into a bad guy. I don't want to be hearing from your husbands. Okay. Most scholars say that these things are the like, the final word is the cultural expectation. Right? So every culture, every societal class has certain expectations. They bring up for example, the situation if there's an aristocrat, right, a woman who's never in her life than expected to, like lift a finger to you know, cook, or to whatever,

00:37:49 --> 00:38:00

then can she then get married and be expected to cook for her husband? They say, No, she's not obligated to do that at all. If the husband wants to serve it, he has to hire a servant.

00:38:02 --> 00:38:18

The wife is not a servant. Right? That's basically the point that they're trying to make. The default assumption is that she's not required to serve Him. But there might be cultural expectations of gender roles. And that's fine. Islam is not against gender roles. It's not against cultural

00:38:20 --> 00:38:24

iterations on those gender roles, as long as they're fair, and as long as they don't

00:38:26 --> 00:38:47

cause undue burden on anyone and as long as they do not contradict any other part of the city. And above that there is room for accent. In marriage, there's always room for if set, whatever you do is set with a pure heart seeking Allah's pleasure alone, then that's going to get you into paradise.

00:38:48 --> 00:38:49

Talked about that.

00:38:51 --> 00:38:52

Talked about that.

00:38:54 --> 00:38:55

Talked about that?

00:38:57 --> 00:38:58

Yep.

00:39:00 --> 00:39:06

Yeah, we talked about that. Okay, custody, custody, custody, custody, who gets custody should

00:39:09 --> 00:39:10

should a couple divorce.

00:39:15 --> 00:39:18

The final word on this issue is that

00:39:19 --> 00:39:21

Islamic law is based off of reason.

00:39:22 --> 00:39:27

And the purpose of custody is for what is most beneficial to the child.

00:39:29 --> 00:39:39

So, whatever the situation is, if there is clearly one parent who's more beneficial to the child and the other than the child goes with a parent, that's more beneficial to them.

00:39:40 --> 00:39:43

Okay. And that's all scholars say that.

00:39:45 --> 00:39:50

The issue is, what if they're equal? Right? What if both parents are equal?

00:39:51 --> 00:39:59

Or, you know, in the same neighborhood we're not talking about one's an addict. We're not talking about one's an abuser, like one like you know, both of them loving

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

stable parents, you know,

00:40:03 --> 00:40:04

who gets custody

00:40:09 --> 00:40:10

there is consensus

00:40:12 --> 00:40:19

that for the first period until about 10 years old, the woman has more of a right to custody to her children

00:40:20 --> 00:40:22

as long as she doesn't remarry

00:40:24 --> 00:40:29

if she does not remarry, and she has rights to custody of her children until they're around 10 years old.

00:40:31 --> 00:40:36

What happens after that is a disagreement between the different schools of law.

00:40:41 --> 00:40:47

As for Abu Hanifa, and Matic so they differentiate between Is it a girl? Is it a boy, if we're looking at if it's a girl,

00:40:49 --> 00:40:57

Abu Hanifa and Malik, they say that once she reaches the age of 10, then the woman is also

00:40:58 --> 00:41:01

more entitled to custody than the man.

00:41:02 --> 00:41:06

Even if men says no, it's the opposite. Daddy's Girl,

00:41:07 --> 00:41:21

the father is going to have her best interest in heart and so the father is more deserving again this is all else being equal. And even the Shafi gave the child a choice. After 10 He says that they should choose themselves

00:41:22 --> 00:41:24

as for a young boy,

00:41:25 --> 00:41:26

when he reaches 10

00:41:28 --> 00:41:31

Who should he go to All else being equal?

00:41:35 --> 00:41:39

Then a Shafi and Achmed, so athma joins a Shafi and saying that he gets to choose

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

as for I will, I will Hanifa and Malik.

00:41:47 --> 00:41:55

They say no, he does not get to choose. Rather, he goes to the mother, just like the girl

00:42:01 --> 00:42:03

that's not applicable, that's not applicable.

00:42:10 --> 00:42:11

Okay, this is a good one.

00:42:14 --> 00:42:19

There's a good one. And then there's a kind of obscure one. And that I think is the end of yep, that's the end of the whole, the whole book. So

00:42:20 --> 00:42:21

is a woman

00:42:23 --> 00:42:25

allowed to stipulate

00:42:28 --> 00:42:31

a condition in her contract?

00:42:32 --> 00:42:36

That's extra to what is required in the city.

00:42:41 --> 00:42:45

So we have some different scenarios where this can happen.

00:42:51 --> 00:43:15

Like, in the first scenario, let's say a woman stipulates a condition in her contract that's not valid that goes against the city. Okay? Like for example, she says that, okay, she has to be paid her her dowry in, you know, alcohol. Right? Then, in this scenario, that condition is not valid. It's not.

00:43:16 --> 00:43:44

It's, it's completely ignored. But the contract is still valid, right? So this is where this is the importance of what we're getting into. The contract is valid, the marriage is valid, but the condition is not valid. So you ignore it. It says if the condition isn't there, say I want to be paid my dowry in pepperoni No, sorry, you're gonna be go you're gonna get the the going rate instead. But the the marriage is still valid.

00:43:48 --> 00:43:53

What about if the condition the extra condition

00:43:54 --> 00:43:56

does not violate the Sharia?

00:43:59 --> 00:44:01

Let's say for example.

00:44:05 --> 00:44:12

Let's say for example, that a woman's puts a condition to her contract that if her husband wants to marry a second wife

00:44:15 --> 00:44:17

that the contract is automatically dissolved.

00:44:20 --> 00:44:21

Is that a valid

00:44:23 --> 00:44:32

condition? Is it honored? Is that condition honored in the contract? Or is it just ignored, like the previous situation?

00:44:35 --> 00:44:46

Even F min along with Azeri and even shipping, they said yes, this is allowed and you have to honor that condition

00:44:47 --> 00:44:48

100%

00:44:50 --> 00:44:52

whereas the remainder three

00:44:54 --> 00:44:59

Islamic schools or schools of law, I will Hanifa Madigan a Shafi they say no

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

This sort of condition is not a valid condition, it doesn't affect the validity of the contract at all. But the husband is not required to follow it.

00:45:15 --> 00:45:18

And so that's a very good plug to become a humbly

00:45:20 --> 00:45:23

if you're looking for a school of law,

00:45:24 --> 00:45:26

and that I think is

00:45:29 --> 00:45:35

there's one more issue. That's kind of interesting, but it's a little bit out there. And that pretty much concludes.

00:45:36 --> 00:45:45

concludes the book on marriage. Anybody Any questions, comments, concerns? Whether related to that stuff or the Hadith that we tackled today?

00:45:50 --> 00:46:21

Good. Yeah. Why is custody an issue that's within marriage and divorce? As we saw with previous issues, it's all a triangle, right? So other than that, the scholars, they try to compartmentalize everything neatly. But in reality, in reality, it's impossible to separate everything. So sometimes scholars will actually repeat issues. So if there's one that's like between the two, he'll mention it first in the, in the book of marriage, then he's going to mention it again in the board in the book of divorce.

00:46:28 --> 00:46:39

Why is Oh, good, good, good. Okay, I understand, why is remarriage? Why does remarriage affect a woman's custody? Let's put, let's give an example. So

00:46:41 --> 00:46:54

man and woman divorce, the woman is more entitled to those children, all else being equal until she remarries. What if she remarries? What's the attitude of her new husband?

00:46:55 --> 00:46:58

Now her first children's stepfather going to be to her children?

00:46:59 --> 00:47:04

Are they going to? Is he going to be as concerned with what's best for them as their father? Or

00:47:06 --> 00:47:09

does abuse happen with lots of stepfathers?

00:47:10 --> 00:47:13

It's become a it's become a stereotype that's become a trope.

00:47:15 --> 00:47:17

Does that mean that it always happens? No.

00:47:18 --> 00:47:20

Why is there

00:47:21 --> 00:47:34

she will have their best interest but who usually has a little bit more authority in a marriage? Why are Muslim women not allowed to marry Christian men? But why are Muslim men allowed to marry Christian women?

00:47:38 --> 00:47:45

Because average world average Okay, you go from Africa, Asia, Europe, America, South America, wherever

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

that

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

men are a little bit forceful, more forceful.

00:47:52 --> 00:47:55

Men sometimes can be a little bit more

00:47:56 --> 00:48:01

stubborn, sometimes even violent. Right. And so

00:48:03 --> 00:48:16

that affects family dynamics. There's a recognition of this in the city, even if it's not 100% All the time thing. I think it's fair to say that it is a tendency that it's probabilistic.

00:48:17 --> 00:48:20

And so, similarly to how

00:48:22 --> 00:48:24

the city recognizes that

00:48:26 --> 00:48:29

a man is a little let's put it this way. Men are more obstinate.

00:48:31 --> 00:48:37

Okay, so a man who's a Muslim, he marries a woman who's a Christian men are more obstinate.

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

Right? He's less likely to ever even think about changing his religion. Like, I'm doing my thing like whatever. Okay?

00:48:51 --> 00:48:53

Whereas the, the opposite isn't always true.

00:48:54 --> 00:49:10

It's a very, very similar dynamic here. If a woman comes with her children into a new marriage, and the man is the one that kind of, you know, can throw his weight around a little bit more can kind of set the tone he's expected to provide an regretfully that's a vulnerability.

00:49:12 --> 00:49:20

He expected to provide for everybody and we wish that with stepfather's there would be no strings attached, no favoritism, nothing like that. But

00:49:21 --> 00:49:31

how often is it the case? Yes, it is. So at that point, again, and this is all based on case by case scenario, but the if all else is equal.

00:49:32 --> 00:49:47

If all else is equal, the assumption is that the biological father is going to be in more of a position to look after the interests of his children. Even if he's he has remarried.

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

Then a woman who is now

00:49:52 --> 00:49:59

usually world average dependent on her new husband, for provision and etc, etc.

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

etc.

00:50:01 --> 00:50:08

Right. So a SonicWALL is trying to take care of everybody. Worst case scenario, I hope that makes sense.

00:50:11 --> 00:50:18

What if the husband income is not enough to support the family? Yes, this we touched on this a little bit

00:50:19 --> 00:50:24

of couple of classes ago. And it is grounds for

00:50:26 --> 00:51:03

a divorce, it's grounds for an annulment. It's grounds for dissolving the marriage contract. However, however, what is enough, right has to be defined, right? If we're talking like, bare necessities, okay, like you don't have proper clothing, you don't have proper nutrition. Yes, that is if he's failing in that regard, then that is grounds by which myself or a Mufti or somebody else can actually intervene and dissolve a marriage contract.

00:51:04 --> 00:51:27

If a man is not providing in that sense, if it's about a second car, a vacation home, you know, things like this that aren't necessity that that's a, that's a bit different of a scenario. And obviously, I bring up these examples, because these are kind of extremes. There's a spectrum. There's a spectrum. Right?

00:51:28 --> 00:51:29

So

00:51:31 --> 00:51:33

that might not answer your question, but

00:51:35 --> 00:51:51

the husband is responsible, but he's also responsible for what is expected culturally in that according to that place, right? Because places have different living expenses. It's way cheaper to live here than in New York City. Okay. Um, according to

00:51:52 --> 00:52:04

what's going on current events, we have a pandemic, there's how many millions of people on unemployment right now, right? We can't just wait by and wait for the next pandemic. So it'd be like, Oh, I see a sucker I'm out. Right?

00:52:05 --> 00:52:12

We have to take that into consideration, we have to take into consideration what is culturally culturally expected.

00:52:13 --> 00:52:48

Right? This is why Allah subhanaw taala refers to it in the Koran has been in our roof, with what has no meaning with what is well known among people, where people, if you would describe your situation to somebody else from your culture, living in the same place as you and they will be like, Oh, my God, right? That's a problem. That's a problem. But if you describe the situation to somebody similar culture is you same place as you and they're like, Yeah, that's kind of the situation that everybody's in, then that's not that's not grounds for for divorce.

00:52:50 --> 00:52:53

Any other questions, comments, concerns?

00:52:55 --> 00:52:59

Next up is is the book of divorce. So we'll get into some of this stuff again.

00:53:00 --> 00:53:01

And some more stuff.

00:53:08 --> 00:53:22

And as always, anybody wants to send me questions, WhatsApp, email, Facebook, whatever, please do. And I will get to them in this time period of Shala. Thank you all for your engagement as always, Hamdulillah.

00:53:24 --> 00:53:29

Always interesting for me as well. Okay, I'll see you next time in sha Allah. Wa Salaam Alaikum wa Rahmatullah.

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