'' Our Lord ! grant us good in this world and good in the hereafter and save us from the torment of the Fire '' [Ameen]
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{in Arab} :->
Rabbanaa aatinaa fid-dunyaa hasanatan wafil aakhirati hasanatan waqinaa 'athaaban-naar/-
(Surah Al-Baqarah ,verse 201)
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What are the islamic rulings regarding forced marriages? Is it correct that such a marriage is invalid? If so, what is the status of a child that is born from such a mariage which is then ended through divorce some time after the childs birth? If the marriage was unwanted but brought about due to pressure and threats from a parent, then violence occured throughout the time of marriage, then would a child from such a marriage be considered as legitimate if the marriage contract was itself invalid? If this would be an invalid marriage then is the child considered the same as one being born out of wed lock? On an islamic forum it stated that a person born out of wed lock is to have no relation with their father, is this correct and what is the case if the father is also a relative of the mother? And if this rule is correct then is this rule also applied to a child who came about as a result of an unwanted relationship?
If there are any evidences from the qur'an and sunnah regarding this, it will be greatly appreciated if you could provide them.
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Praise be to Allah
Firstly:
It is not permissible to force a woman to marry someone she does not want, even if she is a virgin, according to the correct fiqhi view, which is the view of the Hanafis, because the Prophet (blessings and peace of Allah be upon him) said: “and a virgin should not be married until her permission has been sought.” Narrated by al-Bukhaari (6968) and Muslim (1419).
If the marriage takes place without her consent, then the marriage contract depends upon the woman’s approval. If she approves of it, then it becomes a valid marriage contract, and there is no need to repeat it. But if she does not approve of it, then it is an invalid marriage contract.
It was narrated that Buraydah ibn al-Haseeb said: A young woman came to the Prophet (blessings and peace of Allah be upon him) and said: My father married me to his brother’s son so that he might raise his own status thereby.
[The Prophet (blessings and peace of Allah be upon him)] gave her the choice, and she said: I approve of what my father did, but I wanted women to know that their fathers have no right to do that.
Narrated by Ibn Maajah (1874); classed as saheeh by al-Buwaysiri inMisbaah az-Zujaajah(2/102). Similarly, Shaykh Muqbil al-Waadi‘i said: It is saheeh according to the conditions of Muslim. End quote fromas-Saheeh al-Musnad(p. 160).
The Standing Committee for Issuing Fatwas was asked: What is the Islamic ruling on one who is married off without her consent?
They replied: If she did not agree to this marriage, then her case should be referred to the court to either confirm or annul the marriage contract.
End quote fromFataawa al-Lajnah ad-Daa’imah(18/126).
Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) said: If we say that the marriage is not valid, then it must be annulled, because it is not valid. But if we assume that the woman met the man and liked him, and she approved of the marriage contract, then there is nothing wrong with that, and the marriage becomes valid based on her approval.
End quote fromal-Liqa’ ash-Shahri(1/343).
Secondly:
If the woman does not approve of the marriage contract, then the marriage is invalid according to the correct scholarly view, as mentioned above. But scholars other than the Hanafis regarded it as valid, so it is a marriage concerning which there is a difference of scholarly opinion.
A number of things result from that:
1. She cannot exit this marriage except by means of divorce (talaaq) or annulment by a judge (qaadi).
Ibn Qudaamah (may Allah have mercy on him) said: If a woman is married on the basis of an invalid marriage contract, it is not permissible for her to marry anyone else until the first husband divorces her or her marriage is annulled. If he refuses to divorce her, then the judge may annul her marriage. This was stated by Ahmad.
End quote fromal-Mughni(7/342),
Shaykh Ibn Baaz (may Allah have mercy on him) said: The marriage is invalid according to the more sound of the two scholarly opinions, but they may not marry until after (the first husband) has divorced her, or her marriage to him has been annulled by the shar‘i judge, so as to avoid going against those scholars who said that the marriage is valid.
End quote fromMamoo‘ Fataawa Ibn Baaz(20/411).
2. Intercourse in such a marriage is not regarded as zina (fornication), because there is uncertainty about the invalidity of the marriage due to there being a difference of scholarly opinion.
Ibn Qudaamah (may Allah have mercy on him) said: There is no hadd punishment for intercourse in a marriage based on an invalid marriage contract, regardless of whether the partners believe it to be lawful or prohibited. With regard to invalid marriage such as marriage of a woman who is already married or who is observing ‘iddah, and the like, if both parties were aware of what is lawful and what is prohibited, then they are guilty of zina and must be subjected to the hadd punishment, and any child born as a result is not to be attributed to the man.
End quote fromal-Mughni(7/344).
3. Any child who is born from such a marriage is a legitimate child and is to be attributed to the husband.
This is applicable to any invalid marriage concerning which there is a difference of scholarly opinion.
Inal-Mawsoo‘ah al-Fiqhiyyah(8/123) it says: The fuqaha’ are agreed that it is obligatory to observe ‘iddah and that any child is to be attributed to the husband, following intercourse in a marriage concerning which there is a difference of opinion among the madhhabs, such as a marriage that was done without witnesses, or without the presence of the woman’s guardian, or marriage of a muhrim (pilgrim in ihram) during Hajj, or shighaar (quid-pro-quo) marriage.
Similarly, they are agreed on the necessity of observing ‘iddah, and that any child born as a result of a marriage concerning which there is consensus that it is invalid is to be attributed to the husband, once intercourse has taken place, such as marriage of a woman who is observing ‘iddah, or marriage to a woman who is married to someone else, or marriage to a mahram (incest), if there is some doubt or confusion that may lead to waiving of the hadd punishment, such as if the parties were not aware of the prohibition, because the basic principle according to the fuqaha’ is that with regard to any invalid marriage in which the hadd punishment could not be carried out, the child is to be attributed to the man. But if there is no doubt or confusion that may lead to waiving of the hadd punishment, such as if they were aware of the prohibition, then according to the majority of scholars the child is not to be attributed to the man. This is also the view of some Hanafi shaykhs, because once the hadd punishment becomes due, the child cannot be attributed to the man. End quote.
Thirdly:
An illegitimate child cannot be attributed to the fornicator according to the majority of fuqaha’, but some fuqaha’ are of the view that if the fornicator acknowledges the child and attributes him to himself, then the child may be attributed to him.
And Allah knows best.
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In sha Allah, I am going to do the obligatory Hajj this year. What should I do if I get my menses during the pilgrimage? I know that I should do the rituals like any pilgrim, except for circumambulation of the Ka‘bah. My question is: I want to use medication to prevent menstruation. My husband is a doctor and he does not want me to do this, because he says that it is possible for some women to experience unexpected bleeding. This is causing me a great deal of anxiety, but I want to ask about tawaf al-ifaadah: what should I do if I get my menses, because I will be going with an organised group, and my husband has work after Hajj. I am from the city of Haa’il, and I have children; in other words, it will be difficult for my husband to leave me with his siblings in Jeddah until I become pure and can circumambulate the Ka‘bah after I become pure [following the end of my menses]. Please advise me as to the best thing to do, because I am confused.
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Praise be to Allah
Firstly:
Tawaaf done by a menstruating woman is not valid, because of the report narrated by al-Bukhaari (305) and Muslim (1211) from ‘Aa’ishah (may Allah be pleased with her), according to which she got her menses just before entering Makkah during the Farewell Pilgrimage. The Prophet (blessings and peace of Allah be upon him) said to her: “Do everything that the pilgrims do, but do not circumambulate the Ka‘bah until you become pure.”
Al-Bukhaari (4401) and Muslim (1211) also narrated from ‘Aa’ishah that Safiyyah bint Huyayy, the wife of the Prophet (blessings and peace of Allah be upon him) got her menses during the Farewell Pilgrimage, and the Prophet (blessings and peace of Allah be upon him) said: “Is she detaining us?” I said: She has already done tawaf al-ifaadah, O Messenger of Allah (sa), and has circumambulated the Ka‘bah. So the Prophet (blessings and peace of Allah be upon him) said: “Then let her depart.”
This indicates that the menstruating woman is not allowed to do tawaf and that she should remain [in Makkah] until she becomes pure; if she leaves, then she must come back and do tawaf. This is the view of the majority of scholars.
If a woman fears that her menses will come before she does tawaf al-ifaadah, and it is not possible for her to stay in Makkah or to come back to it after she leaves, then she may take medicine to prevent menstruation, so that she will be able to do tawaf, and any harm that may result from that is something that may be overlooked for the sake of doing this important act of worship and performing it in the prescribed manner.
‘Abd ar-Razzaaq narrated in hisMusannaf(1/318) that Ibn ‘Umar (may Allah be pleased with him) was asked about a woman whose menstrual bleeding was lengthy in duration, and she wanted to take medicine to stop the bleeding. Ibn ‘Umar did not see anything wrong with that, and he recommended araak water [that is, he prescribed that medicine for her]. Mu‘ammar said: I heard Ibn Abi Nujayh being asked about that, and he did not see anything wrong with it.
It was narrated from ‘Ata’ that he was asked about a woman who was menstruating, then she was given some medicine to stop her menses before it ended naturally; could she do tawaf? He said: Yes, if she sees the tuhr (white discharge signalling the end of menses). But if she sees traces of blood, and does not see the white tuhr, then she should not do tawaf.
What is meant by traces is a little blood or light bleeding when the menses has nearly ended.
If she cannot take this medicine or she fears that she may be harmed by it, then Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) was of the view that if she cannot stay in Makkah because she is part of a group that will leave soon, and she cannot come back in order to do tawaf, then in that case she has no choice, so she should take measures to prevent the blood from falling onto the ground, and do tawaf. Some of the scholars have issued fatwas to this effect.
The Standing Committee for Issuing Fatwas was asked: A woman came in ihram for ‘umrah, and after reaching Makkah she got her menses. Her mahram has to leave immediately and she does not have anyone in Makkah. What is the ruling?
They replied: If the matter is as described, that the woman got her menses before doing tawaf, and she is still in ihram, and her mahram has to leave immediately, and she has no mahram or husband in Makkah, then the condition of being in a state of purity and free of menses in order to enter the mosque and do tawaf is waived in her case, out of necessity, and she should put on a sanitary pad and do tawaf and sa‘i for her ‘umrah, unless it is easy for her to leave and then come back with her husband or mahram because she does not live too far away and it is easy for her to come back. In that case, she should leave and come back as soon as her menses ends in order to do the tawaf of her ‘umrah in a state of purity. Allah, may He be exalted, says (interpretation of the meaning):
“Allah intends for you ease and does not intend for you hardship”
[al-Baqarah 2:185]
“Allah does not charge a soul except [with that within] its capacity”
[al-Baqarah 2:286]
“[Allah] has not placed upon you in the religion any difficulty”
[al-Hajj 22:78]
“So fear Allah as much as you are able”
[at-Taghaabun 64:16].
The Messenger of Allah (blessings and peace of Allah be upon him) said: “If I instruct you to do a thing, do as much of it as you can.” And there are other religious texts which confirm that making things easy and avoiding hardship are religious objectives. What we have mentioned was also indicated in fatwas issued by a number of scholars, including Shaykh al-Islam Ibn Taymiyyah and his student, al-‘Allaamah Ibn al-Qayyim (mem them both). End quote fromFataawa Islamiyyah(2/238).
Shaykh Ibn ‘Uthaymeen (may Allah have mercy on him) was asked: A woman got her menses when she had not done tawaf al-ifaadah, and she lives outside the Kingdom (Saudi Arabia). The time has come for her to leave the Kingdom; she cannot delay her departure and it is impossible for her to return to the Kingdom once more. What is the ruling?
He replied: If the matter is as described, a woman has not done tawaf al-ifaadah, and she has got her menses and cannot remain in Makkah or come back to it if she leaves before doing tawaf, then in this case she may take one of two measures: either she may have an injection to stop the bleeding, and then do tawaf; or she may put on a sanitary pad to prevent the blood contaminating the mosque, and do tawaf, as this is a case of necessity. The view that we have mentioned here is the most correct view, and is the one that was favoured by Shaykh al-Islam Ibn Taymiyyah. Or the other alternative is to do one of two things: either to remain in whatever state of ihram she is in, in which case she is not permissible for her husband, and it is not permissible for a marriage contract to be done with her if she is not married; or she is to be regarded as being like one who was prevented from reaching the Ka‘bah, so she should offer her sacrifice and exit her ihram. In that case, her Hajj will not count. Both of these options are difficult, so the correct view is that of Shaykh al-Islam Ibn Taymiyyah (may Allah have mercy on him) regarding such cases of necessity. Allah, may He be exalted, says (interpretation of the meaning):
“[Allah] has not placed upon you in the religion any difficulty”
[al-Hajj 22:78]
“Allah intends for you ease and does not intend for you hardship”
[al-Baqarah 2:185].
But if this woman is able to travel then come back when she has become pure, there is nothing wrong with her leaving, then when she becomes pure (following the end of her menses), she may come back and do the tawaf of Hajj. But during the intervening period, she cannot be intimate with her husband, because she has not completed the second stage of exiting ihram. End quote fromFataawa Islamiyyah(2/237).
The ruling allowing a menstruating woman to do tawaf in the case of necessity may also apply to a woman who comes from a distant land and is not able to remain in Makkah or to come back again to do tawaf. But if she lives in the land of the two holy sanctuaries (i.e., Saudi Arabia) or one of the Gulf countries, then it is possible for her to come back to Makkah in order to do tawaaf al-ifadah. So if she cannot stay in Makkah until she becomes pure, then she may leave, then when she becomes pure she may come back and do tawaf, but during the intervening period she should avoid intimacy with her husband, because she has not completed the second stage of exiting ihram.
This is applicable in your case, so it is not permissible for you to do tawaf whilst menstruating; rather you should come back to do tawaf after you become pure (following the end of your menses).
Shaykh Dr. Khaalid ibn ‘Ali al-Mushayqih, a member of faculty at the University of al-Qasim, was asked: A woman got her menses before doing tawaf al-ifaadah, and she has to leave with the Hajj group with whom she came before her menses ends; what should she do? Please note that she cannot stay behind from her group when they go back. May Allah reward you with good.
He replied:
With regard to the woman who got her menses before doing tawaf al-ifaadah, one of the two following scenarios must apply:
1. That she came from a distant land, such as Morocco, Pakistan, India and the like. In this case, according to the opinion of Shaykh al-Islam Ibn Taymiyah (may Allah have mercy on him), she should take measures [to avoid any blood contaminating the mosque, by putting on a sanitary pad] and do tawaf, because this is a case of necessity.
2. If she came from a nearby land, such as if she resides in the Kingdom of Saudi Arabia, or she is from a Gulf country, then in this case it is not permissible for her to do tawaf whilst menstruating; rather she should wait until she becomes pure, or she should leave then come back after that, when she has become pure. If she leaves, then she is still in a state of ihram and she has not completed the second stage of exiting ihram, so it is not permissible for her husband to be intimate with her until she has completed the second stage of exiting ihram.
And Allah knows best.
