Haram Inheritance Forced Intimacy Amongst Spouses Q&A
Channel: Yasir Qadhi
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As Salam Alikum Rahmatullahi Wa Barakatuh Alhamdulillah wa Salatu was Salam O Allah, maybe a burden on my bed. Today inshallah to Allah will be our regular q&a series and again, this is a q&a that I choose from the pool of questions that are sent to me from around the world you can send your question to ask why Q at Epic Masjid dot O R G once again ask why Q one word at Epic Masjid one word dot o RG and once again, you may send whatever you want, but unfortunately I do not have the time to individually respond I choose from the questions that which I feel with the maximum benefit to the maximum viewership. I cannot answer individual fatwas or questions unfortunately, so Bismillah with
this Inshallah, let's begin with our first question for today, brother who has asked his name to be withheld from California emails, that he has inherited a certain amount of wealth from his father who recently passed away. Now his father was a businessman who had many businesses and the man says, This person says that I know that not all of his businesses were halal, especially in his earlier years, he would deal with riba and he sold haram products, meaning the father would have haram businesses, and the son says, There is no doubt that a portion of the wealth that he earned is haram. However, now that my father has passed away, and this money is coming to me, does that make
the money halal? For me? That is the question we're going to deal with in the first part of our session today.
And when one can rephrase it, basically and that is that does how long money become Halal when it transfers the ownership from a deceased person to the inheritors. First, let us begin by saying the default, the default is that when one inherits money, that one does not have to ask about where this money came from. One does not have to go back to the tax receipts and to go back 1020 3040 years, you do not have to do any research. If a deceased relative has left you money, it's not your obligation to find out. So for example, if you find out your uncle has passed away, and you are the inheritor you did, or he left, you know, a deceased relative left for you 1/3 of his wealth, which
is of course, completely Halon in Islam, it's not your obligation to find out what was his occupation? Where did he earn every single penny from? On the contrary, the default is that when there is no suspicion, you don't raise any suspicion. And in fact, this is the unanimous consensus of all the scholars of Islam. Imam, an nawawi, the famous scholar of the Shafi school remarks
excuse me, in his much more volume nine page for 28
That man, what is Mr. Allen? Well, um, yeah, Adam in a in a cassava humo refill who I mean halaal in unmin Haram, what I'm talking Allama for Hua Hala, lune BHMS. Allah ma, whoever inherited money, and he doesn't know where this person obtained the money from was it from haram was hid from halal, and there's no suspicion is just that you don't know. Then he said it is permissible, but huge amount of the scholars. Okay. So first point here, it's not your job to go research. Second point. In this case, you're saying it's my father. And I know he was involved in Haram. So we get now to the second point. What do you mean, my dear brother, but how long?
Do you mean that which is unanimously agreed upon to be haram? Or do you mean that which had a gray area and which some scholars said oh, we shouldn't do this transaction? And others said, No, it is permissible. In my humble opinion, if the matter was gray area, ie, where you have two different opinions and a group of respectable reputable aroma said this transaction is haram. And another group of reputable mainstream aroma said that no, this is actually a halal transaction, then it is not your job to choose one filthy position for your father over another. And you should have a good opinion of your father that maybe your father did research and he followed an opinion that maybe you
don't think is the stronger one, but it is still within the acceptable framework of Islam. So for example, and here my point is that when you say your father did haram, right, again, I'm just pushing a little bit back and saying, Are you sure that it was clear cut haram? Or was it an ambiguous area that makes you uncomfortable, but perhaps for your father?
You know, he asked the verdict and he was completely permissible for this. So my second point, let's distinguish between that which is without a doubt haram, for example, a person who owns a liquor store there is no question that that is haram and the money that it is acquires is haram and the money is cursed. Or for example, a person takes bribes. Or for example, a person embezzled funds working for a corporation or a bank, or for example, a person outright stole literally stole something from another person, right? There is no question this is unambiguous. There are no two opinions clear cut haram. In this case, yes, your question is valid. And it's to his point that my
father did haram. I know he did. Hold on. Now that he's passed away, I'm inheriting the money. Is it halal? For me? That's a legitimate question, or did your father enact transactions that are ambiguous Gray, some people said halal, others said haram, for example, mortgage loan, a lot of people say Oh, my father had a mortgage. And I don't think mortgages are halal, but he had a mortgage and now I inherit the house and we say to this brother, yes, subhanAllah Yanni, you know your father, inshallah followed a mainstream fatwa. And I have a longer lecture about mortgages don't make the issue that which is great to be like the issue which is clear cut right? Or another
example, again, I have a very clear opinion about life insurance, I do not think it is permissible. Personally, I do not think it is permissible to have a longer q&a, you can find it online on this very channel, you can find my explanation of life insurance, nonetheless, whether I like it or not, I cannot deny that a group of reputable mainstream Roma have the reasonings and logic and they have a pined that, given the world we live in life insurance is permissible, I strongly disagree I strongly I don't have life insurance, and if anybody comes to me, I say we should not get life insurance. But now you say to me that Oh, my father had life insurance, right. And I think it is
held on but he had it that his opinion, you know what, whatever it was, am I allowed to take it and I say here, well, we cannot equate a gray area where there are two opinions with that which is clear cut. And in my humble opinion, you should not be asking about a gray area. And you know, I mean, obviously if you want to be an EU mashallah very, very cautious and following Taqwa to the maximum, no doubt, if you want to give it to no problem away to South Africa. But I would say if your father followed a 50 position that you disagree with, well, that should not make it any issue for you. And insha Allah have a personal version of your father, that he followed a position about mortgages
about something that you know, might be a minority for you, but still, it should be within the mainstream, and therefore, it is not even a question of haram and halal. It's a question of your father following a mother or a position other than your own. And so it would not become impermissible for you in the slightest. Now, Allah knows best Now, let us return to the fact that what if it was clear cut, hold on. So there must be two conditions in order for you to ask this question. The first condition, you know for certain that your father or whoever you're inheriting the money from acquired haram money. Again, it is not your obligation to do research and where you
to do research for no reason. Honestly, this is a type of sin because you're going beyond and you're going to a level of what is called tickle if you're doing above and beyond what the law requires. And it is actually detrimental to your Imana Taqwa to go to this level, we don't ask let us know Anisha and to the Lakota so can we don't go beyond what we should ask about. However, in this case, it's your father so obviously you grew up with him, you know where his money is coming from. And perhaps you had some back and forth and your neck and you're getting angry insha Allah hope if you if it was clear, cut out on I hope that inshallah once you're a full grown man, that you have had
conversations with your father, for example, why did you I'm just giving an example. Why did you own a liquor shop you should not own one, get rid of this, repent to Allah subhanho wa taala. Now, obviously, again, if your father repented in his lifetime, gave up that haram business and gave charity to make up for that then once again this question does not arise. Okay, so a past sin, and a past acquisition of haram money that your father repented from, and did not have a continuous income from and insha Allah Allah gave you no repentance between him and Allah and gave that charity what not? Once again, it's not your business that once upon a time your father and haram don't worry
about it. So clear cut haram. And you know this for a fact without you, you know, doing any type of research on this, and that this money is still in his possession. Again, we're not talking about a repentance with all of these conditions. Now, your question is legitimate. I hope you understand if any of these other conditions are not met, you did not know it was haram. You're just you're going above and beyond or it's a gray area, or it was a past sin that he repented from, then this question should be null and void and you should not ask it and the money is Khaled. Let us go now.
How to what if all of these conditions are met? And so, you know for a fact that it is haram. It is clear cut haram unambiguous for example, stolen money for example, embezzlement, for example, fraud, and no repentance was done and that is still a part of the inheritance, right? That is still a part of, you know what is owned by your father. Now to answer this question, we get to this is the precursor, now we get to answering your question. So, is it permissible to obtain haram wealth via inheritance? Or we can rephrase the question, does the transaction of inheritance make that which was haram into Khaled Okay? In order to answer this question, I'll summarize for you the three main
opinions about this. The first opinion minority opinion is that, and this is a very minority opinion, really, and that is that the money is completely valid. And whatever sins your father or anybody else has done is upon your father, and you are absolutely you know, scot free to take this money in His entirety. Now, this opinion was held by a number of early scholars, such as Hassan Al bacillary, and Soufiane authority, and from the Maliki scholars site known the famous compiler of the Maliki and the one who extrapolated so many fatawa and whatnot, and there and others as well. And their main evidence was that the sin of the person is on the one who the was on the center, and
the sin does not transfer to anybody else. And as Allah says, In the Quran, well as it was the law to withdraw, that no person shall bear the sins of another. So the fact that your father committed a sin and earned how money should not have any impact on you. And also the fact that generally speaking, exchanging something between owners exchanging the ownership of something transferring the ownership of something nullifies the previous claims on that item, meaning give you a simple example, suppose a person who owns a liquor store suppose a drug King, you know, somebody who is a mafia, and you know, he's mafia, you know, he's involved in the drug industry, and you are mashallah
a clean, pure Halal grocer. You sell vegetables, you sell apples and oranges, and bananas and potatoes, right? And this drug mafia comes in and you know, this guy's a criminal, and he hands you $10, and he wants to buy bananas, is this transaction hella, pretty much by unanimous consensus is heroin, because he's buying bananas from you. And you don't have to ask this person? Where did he get his money from? If we were to start going to this level, then the whole world would go, you know, we would not be able to have any transaction. So the fact that when a person whom you know, to have haram money, you know, has a business transaction with you that is halal. It's not your
business to find out where did that person's money come from? Where else obviously, and even if you know it to be, you know, that this person is a criminal, and he has what not now, if you were to be safe and say, I don't want to do business, and you know, that's up to you, but to say that it is haram, really, hardly any scholars said that. So the scholars who said that, because a transfer of ownership makes the Haram basically into halal. So for example, the person, you know, as I said, has had on money, but he engages in a business transaction with you that is halal. That's not your business, your transaction is halal with him. So they said by analogy, so to via inheritance, so to
just like if they did a business transaction, that money would become permissible, so to the person has died, so the person did the sin, therefore, the transfer of inheritance will make the originally haram money, it will make it halal for you. Now, this is a minority opinion, the vast majority majority of scholars push back at this. And they said no, actually, we cannot make these claims simply because as for point number one, well, that is it was zero. 10 was the overall nobody's talking about sin. There's no question the son is not guilty for the sins of the father. But we're talking about, you know, for a fact this money is haram, can you take it right? That's a separate
question altogether. And the question of sin, the fact that the Father is a sinner, doesn't mean the sun is the sinner. But the question now is that is the son sinful? Acquiring the sinful money? That's the question here and the vast majority bulk to this and so we cannot just make a simple extraction from the verse As for the issue of transactions, transforming ownership and making the Haram basically into halal, we say the other scholars said that this is not like a regular transaction, you are not exchanging any goods the man is not buying any groceries from you. On the contrary, this is an acquire an acquisition without any effort. This is acquiring the wealth of
somebody else because of their death. You didn't do anything, you're not paying anything in return. This is essentially a free gift to you and you
Have a bit of a higher burden now that is this something permissible for me or not. So they basically said you cannot make an analogy between you know a person walking into your head out store for a halal transaction with his head on money, you cannot make this analogy with inheritance because you're not giving anything in return and so they said that it is an incorrect analogy. So this is the first opinion minority opinion they said it is head on obviously I already told you that there are two or three opinions the second opinion and I've already given you their evidence is they refuted the first one and they said the second opinion is that an inheritance does not transform the
Haram money into halal for you and that that which was haram remains haram if you know that it is haram and this is frankly the default position of the four schools of Sunni law the Hanafi Shafali, Malik and humbleness it is the position of shareholders and we've been Tamia and pretty much the the default the majority the vast majority one can say is that the Haram money does not become Halal simply because of the death of the person involved and therefore
you are not allowed to acquire the portion of the heart of the money that is haram mmm no we says that if you know the inheritance to be haram and you know those whom it belongs to then you must return the money to those whom it belongs to were Illa the sadaqa will be here otherwise you must give sadaqa from it. And even Aberdeen from the office as the same in raddle matar volume five page 247 The exact same thing that it is haram to inherit haram money regardless of whether you know who the original owners are or not. If you know the money to be haram then then it is haram for you to inherit and shareholders and even Tamia was asked about a person who left money that had haram
elements in it is it halal for the children to inherit that money? And even Taymiyah responded other the yeah lemon wallet or no Horiba your creature who the portion that the man the child knows that you took from riba so the question was the man would give her about loans, and he would get extra money back from those dibba loans. This is unanimous haram to give a loan of Riba and take back more unanimously This is how long as four mortgages as explained in a longer q&a There is no unanimous you have a lot of gray area in this regard to give a Dubai loan is not the same as being forced to take and I've given a longer q&a about that. But the point is here I've been Tamia was asked a man
would give loans and he would take riba from those loans he'd give 100,000 Take back 110,000 Ibn Taymiyyah said, the amount that the child who inherits the money knows to be from riba he must get rid of that loan, and either return it to the one who gave the loan ie the one to whom the loan was given. Or if he doesn't know who the person was, he gives sadaqa. He gives it in sadhaka. And even reached of the Maliki's even rich, they'll get the grandfather it will reach said that the mirror off the inheritance does not become HELOC if the original money was haram, and this is the stronger in the correct opinion and quote, so this is basically the standard and the default position. And of
course, there are evidences or logical their common sense. Their evidence is basically is that if the money was not permissible in the first place, and since this is an inheritance, it's not a transaction, but essentially a free transfer of wealth because of death. It doesn't make the Haram halal. Simply because the person has died, it wasn't allowed for him to acquire in the first place, you knew it wasn't allowed for him to acquire now that you have access to the exact same, you should either if you know for a fact how much it is, you get rid of it. Or if you don't know you guesstimate because in the end of the day, hardly anybody has 100% Hold on wealth, if a person is
involved in Haram 1020 3050 80% is haram. But clearly usually there's Harold businesses and other things that he's done. So you should make a guesstimate, if you don't know the exact and you get rid of that which is haram. If you know the people whom it belongs to you return to those people. And if you don't, then you give it a sadaqa because that money is not halal for you, and you shall be rewarded for your piety, because you were pious and cautious in this money. So this is the majority opinion and it is the second opinion on our list. And it is a good opinion. And if you wish to follow it, then that is fine. The opinion that I find personally the one that makes the most sense
to me is the third opinion. And the third opinion is a middle opinion between the first and the second, the third opinion is a middle opinion between the first and the second one, and that is to differentiate between the types of how long so any money that had a specific owner and that you know for a fact that this money belongs to somebody else and the person whom you're inheriting from, in this case your father took it unlawfully and unjustly and that that person is owed that
money that you should and you must give it back to that person or to his inheritors, or if you cannot contact him or it's gonna cause more issues, you give it in South Africa on behalf of that person. So, if suffered a lot, there was blatant stealing. If you know this person or your father blatantly stole a piece of land or stolen amount of money from a person who deserved it, and acquired it illegally, and you know this for a fact, then there is no question that you cannot continue to perpetuate this specific injustice against a group of people that are known to you. However, if the money was generically haram, ie it's not specifically belonging to a person, but
generically your father did things he should not have done. And, you know, for example, in this case, let's give an example of embezzlement. Let's give an example of Vishwa others give an example of riba for example, right? This is generic haram, with the sense that
your father did not unjustly acquire surreptitiously steal a person's specific right, rather, it was generic and there are no known people you can return the money to. In this case, the third group of scholars says that even though it is better for you to get rid of that money, you are not sinful if you acquire that money, which was generically taken, because there are no exact people you can give it to. So rather than give it to a group of strangers, your father did the sin, the sin is on your father, you do not carry the sin. And since the money doesn't have specific rightful owners here, that's the key point of the third group. The third group says that, well, who are you going to give
it back to you're going to give it back to some strangers or you're going to give it a soda to some strangers? Well, I mean, your father did the sin, rather than give it to a group of strangers, the sinners on your father and you are allowed to but it's not encouraged, if you want to be pure, you want to be better and not give it you know, not take it, no doubt that is better for you, but in and of itself, it will not transfer the sin of that haram money will not transfer to you, because there are no specific claimants to that particular wealth. And this is the position of a group of scholars, you will find them really amongst all of the modahaus some scholars have a position
basically it's modified to a which is that to basically says all of the money should be given and to a says well, if you know specifically who the money is owed to you should give it otherwise generically. If it's money that is generic and not specific, then you're not required to give it back because there's no person to give it back to. And this is the photo you find it from great scholars like a one Cherie see of the Maliki's also my own teacher entertainment Allah Muhammad, this was a fatwa that he held and so he says, for example, that model Maru Hala Lilavati were in carnal mo Ruth
saboom and haram. Were in Cannon water if there's a woman haram that the money that is inherited becomes halal for the one who inherits even if the one from whom it is inherited, acquired it from haram means and into entertainment goes on and says that if the person knows that this money is stolen from Fulani or acquired illegally from a specific person, he must return it to that person. However, if it was acquired via a haram you know mechanism, such as for example, the person acquired it from riba right, so this is not stealing from a person, but he acquired it from haram. So if entertainment says that it becomes halal for the water for the inheritors, and the sin is upon the
person who did it and the deceased person, and that and and then he goes on and explains that it's not required for the one who inherits the money to go and find out you know, every single detail about where the money was acquired from, unless we know for a fact that a particular item or a particular amount was basically stolen or taken from specific people, in which case the level of Herma what is called the level of sanctity of that money becomes too high, and it is not allowed to transfer. And in my humble opinion, this third opinion makes the most sense to me. And of course, no doubt, if you were to follow the second opinion, which is that all such money is haram, that it is
safer, no doubt about that, and it is better, and it is going to be clear to one's conscience and more blessed to your wealth. But if one follows the third opinion, and still I would say give some sadaqa to purify it for yourself and realize that you know, this is not you know, the purest of money, but to say that you are sinful and you didn't do it. I don't see this as also being fair, because there is no individual that can claim Hey, that is my money, on the contrary, is generic haram that the one who did it will have to answer to Allah. But now that you are inheriting you don't have to answer for that. And Allah azza wa jal knows best this is a difficult scenario
situation. So between the second or the third opinion, whichever
One is clear to your conscience that should be permissible and Allah knows best.
Our second question for today, just to trigger warning that we're dealing with the topic of non consensual sex. So if this is a topic that makes you uncomfortable, feel free to not watch this video. The second question again, a non anonymous sister emails that she has read a fatwa on a particular website that claims that a Muslim wife's consent is not required for intimacy, and that a husband may force himself on her. And she says this hat this fatwa has disturbed her immensely. And she goes on and on. And she says that this fatwa, she quoted to me that the fatwa defines marriage in a way that, again, she finds it difficult to understand this to be the Islamic marriage. And she
says that is this what the religion of Islam says that the man has the right to force himself on his wife and to take advantage of her even without her consent. Now, obviously, this is a very, very sensitive topic, and it is a multilayer topic. We're talking about marriage, we're talking about ethics, we're talking about consent, we're talking about love. We're talking about laws in various countries. And this topic really does require a lot more than what a short answer will, we'll do justice to. Nonetheless, I'll try my best to provide a bird's eye view, while being honest to our tradition and understanding the realities of our world. Let me begin by stating that no marriage can
flourish, if we just base it on the books of law, it is a mistake to assume that the books of FIQ are what you turn to, to find the recipe of a successful marriage. Legal textbooks are not talking about the adab of marriage, legal textbooks are talking about law. And therefore, one of the mistakes sometimes even preachers and teachers fall into is that they fail to differentiate when the questioner comes to them. Are they asking a question about Islamic law? Or are they asking a question about Islamic etiquettes Islamic norms, Islamic manners, the two are not the same. And books of law have a function and purpose. And books of norms and etiquette and adab have another
function and purpose. So when you asked about the definition of a marriage, right, obviously, there's a legal definition that is found in the books of fic that is needed for books are filled, to extrapolate from this and to read in depth and to read in, you know, the reality of marriage based on a legal definition, that's not going to work. So in our religion, our focal hub, our scholars of fic have defined Nikka the marriage to be a contract that allows intimacy and requires maintenance right? Now, this is technical and legal jargon. I've simplified it for the q&a. But you get my point here. This is technical and legal jargon, it's what lawyers speak amongst themselves, they have to
ask themselves and the gag contract, what does it make permissible that was impermissible before? And what does it make obligatory, which was not obligatory before. And so when you look at it from the lens of rights and prerogatives, then obviously, the thing that comes to mind is that well, romance and conjugal rights and intimacy becomes permissible after the nougat contract. And so it makes it halal. And the maintenance, you know, the husband has to maintain the wife financially provide for the wife give the wife, you know, food and maintenance again, in pre modern era, when you know, women were taken care of by either their fathers or their brothers or their husbands. When
a lady gets married, then the obligation to finance or take care of her is removed from the father or brother and it is transferred to the husband. Now the husband has to provide a house or you know, an apartment, and the husband has to provide food and clothing, etc, etc. So, when you look at these definitions, do your sister understand this is technical jargon and it needs to exist in the end of the day, Islamic lawyers for kaha are looking at marriage from their lens. So there's nothing wrong with that definition. But obviously, you know, there is more to marriage than the technical legal jargon. And let's not forget what Allah himself says in the Quran. Treat your spouses with utmost
kindness, why shouldn't Hoonah build my roof? This is the adab this is the the reality of marriage as it exists beyond the technical jargon. Now the question arises, what happens when either of the two parties does not provide what is you know what the two what has been mentioned in this in this technical jargon, which is again, from the technical side, if you look at it from the bare minimum, and again, I've said this multiple times, no marriage will flourish. If you go to the books of law and ask what is the bare minimum now
Your marriage is going to flourish. If you're looking at the law textbooks and trying to see what's the minimum I can do to make this marriage work. That's not how marriage works. And that's not why we turn to the books of fill. Nonetheless, the books are filled, serve a purpose and function. And if we use them within their function, they're perfect and ideal when we extrapolate to outside their function. Well, that's not what they're meant for in the first place. Nonetheless, the question arises, what happens when either of the parties does not fulfill its part of this bargain? And this is where our sister has come across quotations from some of the scholars of the past who had views
in which they claimed that, you know, if the spouse if the female spouse did not allow or did not, you know, offer herself to her husband, there are opinions that say that the husband may force himself on her there are opinions like this, like I said, that's you will find it in the past, I myself will disagree, and I'll explain why that is the case. By the way, the opposite is also found in our books. And that's also a predominant opinion. What if the husband doesn't provide maintenance for a woman? What if the husband is stingy? What if the husband does not give enough money for groceries? What if the husband is a complete miser and is not giving the money that is required to
take care of the children in accordance with his income? Because again, there's a standard that is expected when a husband is earning X amount of money. Generally speaking, the maintenance of the household is commensurate proportional to that amount, the more that is the amount, the more that the children will be raised in that type of environment. What if he's extra stingy, by and large, the vast majority of fuqaha have said that a wife may take money from her husband without his consent. And a wife may take money, for her groceries for the children's groceries for the children for the clothing, as long as it is done in accordance with the culture of that time, that she's not
using it to go above and beyond and spend on luxury items, rather, you know, for the that which is considered to be normal for people of their income. If the husband is being extra stingy, the wife may take from that money without his knowledge and without his consent. And by the way, nobody problematizes that side of things. There's no consent required over there pretty much you know, by our culture, and the base of the basis of this is the famous Hadith of the Prophet sallallahu alayhi wa sallam that Hynd been to Aruba came to the Prophet sallallahu alayhi wa sallam and said O Messenger of Allah, Abu Sufian is a stingy man and he doesn't give me enough to take care of me or
my children. May I take from his money without his knowledge and the prophets Assam said who the Maya key Well, what a decade Bill Maher roof, take whatever you need for yourself and your children in accordance with what is normal. Take whatever you need for yourself and what for your children in accordance with what is normal, what is the norm accepted, in your level, whatever should be the case, you may take it without his knowledge. She literally said, I have to take it without his knowledge. And the problem said yes, that is okay. Now, again, this is a deep question, a deep issue. Hardly anybody finds that problematic. And yet, obviously, the opposite is found very
problematic and legitimately. So I'm not saying it shouldn't be. I'm simply saying we should be cognizant of how culture and how societal norms affect what we perceive to be normal and affect our sensibilities. And this is a very, very sensitive topic. So from my site, I had been very clear on this point. The opinions of our earlier fuqaha and scholars are not necessarily binding on us if they are not based on explicit Quran and Sunnah. And we do have the right to rethink through earlier fatwas and earlier opinions that are based upon each Jihad and not based upon what we call Katara. Yet, what we call that which is beyond any doubt that which is incontrovertible that which is clear
cut from the Quran and Sunnah we do not question it, but that which is based upon culture, that which is based upon each jihad, we do have the right to question it. So our sister has a long list of quotations from this football website, famous run amok recorded I don't need to quote them here. Famous Roma are quoted from a number of prominent Sunni schools, in which it is clear that they allow coercion, they allow the husband to not have to have consent of the wife to do this. Now.
Me personally, these quotations are there I am, I am under no obligation to defend and frankly nor do I have the responsibility to criticize because these scholars lived at a different time and have a different set of values. And no matter how difficult or awkward it is for us to realize this. I need to make a simple point and that is different
cultures had different norms, different societies had different notions of sensibilities, and just for your information, there was no concept of what is now called marital rape in almost all of human history, even in this country in North America, the concept of marital rape was unheard of an unknown up until the late 1970s. In fact, the norm of a husband having access to his wife was legally established in many European countries, and here in the United States, such as such an extent that there was no penalty from the government, from the state from the authorities for this issue, and again, I'm just being factual, please do not read into what I'm saying. I'm simply
teaching your history over here, whether you're I like it or not agree or not. I'm telling you a fact here, that historically, many cultures had this notion of conjugal rights that the husband has access to the wife with or without her consent, her consent was assumed to be her marriage contract. That was the assumption again, please Don't misquote me, I'm telling you the past how it was. And in fact, English common law, which was enforced in North America, and in the British Commonwealth was this was actually put into a common law, where the concept of marital rape was simply seen as an impossibility.
And this is demonstrated
in the treaties, written by Sir Matthew Hill in 17, sorry, in 1676, in which he has a treatise called the history of the pleas of the crown, in which he wrote as a lawyer, and this is for the state he is codifying the law. And then I'm quoting from British common law, the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and contract, the wife has given up herself in this kind, meaning in this relationship onto her husband, which she cannot retract, end quote. Now, again, for the record, I'm simply telling you how it was. So for a sister of ours to find a quote from the back in Sunni medieval Islam, with you know, I'm
not defending, I'm simply saying, we'll find your quotations from across the globe. That was the case, it was only very recently, in my own lifetime in 1984, I was a child in that time time in 1984. In the New York Court of Appeals in a very famous case, The People vs. Liberty, where a judge ruled that a marriage license should not be viewed as a license for a husband to forcibly rape his wife with impunity. A married woman has the same right to control her own body, as does an unmarried woman, and quote here, and this was in 1984, this was when the law begins to change. Within the next 10 years, all states had adopted this law and had withdrawn this issue of what is called marital
rape exemption, ie before this point in time, there was no notion of a husband forcing himself on a wife as being a crime this was dealt to be a family matter, it should be held, dealt with amongst family amongst extended family and friends, the the court, the government, the police should not get involved, that was the norm in the Western world. And it's not surprising, it might have been the norm in other places, as well. So in a very recent development, the last literally 3040 years, the world has changed. And we now have this notion of marital rape, we have this notion of consent of the wife for every individual instance. Whereas before this point in time, the consent was deemed to
be the marriage contract, just like the man does not need to consent to have his money taken, and the wife may take his money to take care of herself. The notion for some was, again, this is I'm just saying the way that it was because I have to be very careful, I'm not endorsing. But to be honest, I'm simply telling you as it was, and neither am I criticizing how scholars of the past viewed the marriage contract. Now, no question times have changed. And the second wave of feminism has
reinvigorated a very serious debate about the reality of consent about intimacy and the rights of intimacy. And so yes, there is now this notion of marital rape in many, many countries. So now our sister is saying what do we do about Islamic law in this regard? Well, for us, and I've been very clear about this. And this is another case study. It's always the case that when developments happen in broader society, which seem to contradict with our FIP, we have a standard spectrum of, of reactions that occur. On the one hand, let's call it the far left.
Progressive Movement if you like, certain people adopt the language the methodology
Eat the sentiments of whatever the modern culture might be. The same outrage that exists the same sense of injustice that exists outside is then transferred to our tradition, and the same angst and anger is then shown to our tradition as well. And so the notion becomes that, oh, Islam is this and that, and this is this and that, and we should change and call for reform and everything of this nature. And so you have that sentiment. On the flip side, and I would say as a direct reaction to this, we have the far right, the hardline fundamentalists who cannot bear any change, and who wish to dig down and accuse anybody who dares to react by changing any fatwa or changing any Philippi you
know, doctrine or whatnot, that would want to react and say this is selling out. This is liberalisation, this guy's wanting to reform Islam and whatnot. And I've been accused of this many times myself by the ultra fundamentalist critics as well, you want to destroy the entire tradition, and they rebel in digging down and in, in quoting such scholars of the past and openly equating the opinions of the scholars with the Shetty out of Allah subhanho wa taala. You have these two extremes? My methodology has always been that let us be frank and honest and let us be very clear in this regard. If Allah or if the messenger sallallahu alayhi wa sallam has said something that is
sacrosanct, that is clear for us. And we have to be, we don't care what the rest of mankind says. However, if our earlier scholars extracted an interpretation based upon their culture and time, well, then we have the right to extract an interpretation based upon our culture and time without demonizing them without throwing them under the bus without criticizing them. Simply saying, well, they had the right to extract and so do we, as well. By we, I don't mean me. I mean, other scholars of our times, I always make the disclaimer, I consider myself a minor student of knowledge, and I always look up to fuqaha, far more knowledgeable than me. So the question arises, does the Quran or
sunnah give this right unequivocally to the husband? And the response, overwhelming resounding we can say Not at all, those scholars that are sister quoted and those quotations exist, I did not quote them simply because I don't see the point to those scholars that are sisters quoted, are extrapolating this from the generic principles and I give them their right to do so. But I'm not bound by their interpretations. And I have been very clear here that we differentiate between what Allah and His Messenger have said, versus the interpretations of later men. And this issue of a husband forcing himself on his wife is an interpretation of later forelock. It is not explicit in
the Quran, and the Sunnah. In fact, one can quite easily construct a counter argument from the Quran and Sunnah based upon the sentiments and the cultures that we feel in our times, and there's nothing wrong with this. You see, we have to be very careful to not just be going with the flow, which is what let's say the far left or the liberals or the progressives do, but also to not just be counter reactionary, which is what frankly, many, many of our
mean, what's the nice word to say here? Maybe their intentions are good, but they don't know FIP. And there's just this visceral gut reaction to any type of change being selling out and Islam is being destroyed. No, my dear brother and sister, Islam is meant to be vibrant, and Islam is meant to encompass all cultures, and also the fit and the realities of fit, allow for us to fine tune within our cultures and societies. And this is the classic example. This is a real life example of what I mean when I say that we need to reform aspects of film, which again, you know, so my critics went really,
they misunderstood completely what I was saying, and my examples clarify this. This is an example of what I mean, when I say we need to reform some aspects of filth. Yes, it is true that many of our previous scholars allowed marital rape. But does this mean we must stick by that position? Not at all. In fact, we can clearly find evidence from the Quran and Sunnah to say that given our sentiments and in our culture and society, and given the way that we now treat our men and women that this type of action is harmful, and it goes against the goals of the Sharia without criminalizing those that might have allowed it 1000 years ago, that's their culture. That's their
norms. We have a different cultural norms that we have the right to look at the goals of the Sharia in light of our culture, and say, what does the Sharia require us to do? Allah says in the Quran surah Nisa, verse 19. Are you who believe it is not allowed for you to inherit women against their will? And don't be
harsh unto them so that you extract from them some of their wealth, the unless they do a crime against you and treat them with the utmost kindness for it is possible you might not like them and yet Allah subhanaw taala has placed much good in them, treat them with utmost kindness don't inherit them against their inherit the meaning once upon a time, women were treated like chattel like like property, they will be inherited and Allah saying don't do this against their will. So there is a notion that they don't like this even though the context is about inheriting them still the notion of they are free women, you can treat them like property we find this sentiment also our Prophet
Sall Allahu Allah, he was so sorry, the Quran says, what a Hoonah mithril are they? Are they hidden, noble Malou they have the rights for them just like to have certain rights for you with my roof with equivalency. And yes, men have a degree of responsibility over them no question about that. But Allah is saying they have rights that are due to them, just like you have rights due to you the both are somewhat equal in this regard. And the Prophet salallahu idea he was setting them said, la Bharara while there are there shall be no harm, nor shall there be any causing of harm, there shall be no harm, nor shall there be any causing of harm. This is a principle of filth. So what is
harmful? Listen to me carefully, is subjective. And what is harmful might vary from culture to time to place. So in one society, for example, physically disciplining your children would have been considered normal and legit. And so no problem in another society, physically discipline your children is considered harmful. And that's the norm of that society. In both of those societies, one can extrapolate and say la barra, while other are and that society, it's not better in this society, it is Laura. Similarly, when it comes to this issue of intimacy, one can also say that in some societies that might be this, in other societies, it is harmful, and it is something that will cause
the marriage to break up, it is something that will demean the status of a person, and therefore there will be emotional harm, there will be physical abuse, and therefore, in light of the goals of the Shetty, we can say this is not allowed, where is going to be harmful. And there is no question in this society, we are born and raised into that this is an emotional harm. And this is going to essentially break a marriage, there is no way such a marriage is going to flourish. Now, before I finish up, I also want to point out here that one, intimacy doesn't exist in a marriage. Typically, this is the sign of other problems. A lot of times we jump to the issue of intimacy, we forget that
intimacy is a very, very beautiful coming together with a husband and wife. It's an act of love. When it is absent, it's typically indicative of a fault from either or from both of the two partners. So well, Allah knows best. But if there is this case of a woman, you know, not giving intimacy to her husband, perhaps there are factors beyond just you know, there's issues that need to be resolved in the marriage. And so the husband should ask himself as well. Is there something that I'm not doing that is bringing this about? No, no question. The default I'm not gonna mince my words here. Is that a Muslim who believes in Allah azza wa jal, who loves her Lord, who respects the
Sharia, that if her husband approaches her, and she does not have any excuse, that she should allow her husband, to initiate her allow her husband to be intimate with her, there is no question about this. That's a part of the obligation of being a dutiful wife. Obviously, if she has an excuse, obviously, if she is not able to, then that is fine. And even if she is not in the mood, she has the right to negotiate and placate no problem and just be playful and say shallow tomorrow, let's do it or what not and, and offer some time frame or whatnot. The point is, though, that if she has no excuse, and she refuses that access, well, then according to our Shediac, she has committed in a
fraction that is between her and her Lord. And this is something very clear. But the question is, does her husband have the right to force himself and we say that right does not exist explicitly in the Sharia. In fact, the Hadith that indicates that she should reply to her husband also has an indication that he does not have the right to force himself on her house. So the famous Hadith all of you know it, that anytime a man calls his wife for the conjugal act, and she refuses him, and he is angry at her, notice he is angry at her and that's a key point because she refuses without a reason. And she doesn't play Kate she doesn't, you know, be be loving and say we'll do something at
another time. In other words, she is in a manner weaponizing this intimacy and saying, I'm not going to have it with you. So for no reason, the angels will curse her. That's what the Hadith says the angels will cursor for the night now. This is a sin, no question about that if she deprives without a reason, but
At the same time, the Hadith does not say the man has the right to do something on the contrary, that is a sin between her and her Lord, and the husband is going to be angry, well, then she has to bear you know, the curse of the angels for no reason. That's something that that is between her and her Lord, her husband does not have the right to force her. And also, this is not an act that can be forced anyway, this is an act of love. It's an act that is the highest form of intimacy and to force a one partner on the other. This is really a recipe for disaster, especially in a marriage that is supposed to be built upon the foundations of our religion. So bottom line, brothers and sisters,
that it is completely in line of the goals of the Sharia, and of the general text of the Quran and Sunnah, that we say that it is not of the etiquettes of our faith, it is not of the manners of our faith, to force this delicate and romantic and beautiful deed, from one spouse upon the other, and whoever does so, and causes emotional, much less physical harm and distress has disobeyed the Islamic commandments of treating one spouse with my roof and has therefore incurred sin by doing this. So we can say and this is something that I say that this is not something that the shady mandates, even if some of the scholars of the past allowed it that is their opinion, we are not
obliged to follow that opinion. And the text of the Quran and Sunnah allow for us to say that emotional and physical distress is not allowed, it is haram, it is sinful. And anytime emotional and physical distress is caused without any justice, then this is a sin, it should not be done before I conclude, if this issue of lacking intimacy and depriving intimacy persists and continues, my advice is that the husband and wife should have a frank conversation amongst themselves why this is taking place. If that doesn't solve it, then they should reach out to family and friends and bring in I know, it's awkward. I know, it's embarrassing, but it's better than a divorce, reach out to family
and friends and have like the Quran says bring an arbitration together. Also, dear husbands in particular, please understand, a lot of times there might be factors that are beyond your understanding, you will only know them when you open up when you find out what is going on. I will tell you of a case that happened with me by the way that a couple came to me. And it turns out the similar issue. And it turns out panela very, very sad, very tragic. But, you know, he got married, and she was not able to consume it and kept on you know, getting anxious, anxious panic attacks and whatnot. Turns out that the sister was actually molested at a younger age. And when the husband, you
know, and she did not get married until this until her husband married her. And so when her husband approached her, it will trigger memories of her childhood has suffered a loss for a lot. And the husband didn't know this. So now can you imagine a softball alone is that if the husband is forcing himself, can you imagine how much is going to harm? So dear brother, I understand there might be factors way more complicated than a simplistic yes or no. And therefore, don't force yourself at all. It's against the goals of the Sharia. It's against treating your wife with dignity and my roof, get some help get some therapy, find out what's going on. There might be other issues. And in this
particular case of how to love when this sister went to a therapist, and it she treated her for the the stress of what happened in the childhood. It actually helped her and she's now living a normal life with Hamdulillah. Because, you know, that had been, you know, stuck in her memory until the therapist basically, you know, resolved that issue. So dear brother, that's not the way forward also, dear sister don't weaponize this very intimate and sensitive issue. If there's a problem in the marriage, it needs to be solved in a different way don't weaponize intimacy and deprive it of your husband simply because there are other factors in the marriage to deal with them in a different
way. Bottom line, indeed, it is permissible to say this thing is not allowed in our Sharia and whoever causes harm and distress without any cause will incur the sin of Allah and Allah subhana wa Tala knows best until next time, as I said, I'm watching rahmatullahi wa barakaatuh.
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