As-Sunnah Vol. 2 Issue No. 5

 

Imam Ash-Shafa’ee’s debate with an Iraqi Hanafi

Imam Ash-Shafa’ee’s
DEBATE
with an Iraqi Hanafi,
who considered that Hurmat al-Masaaharah is established as a result of Zina

Quoted from I’lam al-Mu’aqqi’een by Imam Ibnul-Qayyim

Imam Shafa’ee:

Zina does not make Haraam, that which is Halaal. This is the saying of Ibn Abbas (radhi allahu anhu). (This is) because Haraam is the opposite of Halaal and something cannot be compared (Qiyas) with its opposite.
 

The Iraqi:

What do you say about (the case) when a man’s wife kisses his son (i.e. a woman kisses her husband’s son) with lust. Does she become unlawful (haraam) for her husband forever?
 

Imam Shafa’ee:

Why do you say so, whereas Allah has forbidden the mothers of your wives (to be taken in marriage) due to Nikah (with their daughter, and not due to zina). Therefore, it is not permissible to make a comparison of Haraam (zina) with Halaal (nikah).
 

The Iraqi:

 (In any case) copulation took place.
 

Imam Shafa’ee:

One type of copulation is praiseworthy and leads to chastity, and the other type is punished. One of them is a calumny and the other is a blessing, by which Allah establishes the lineages and in-laws relationships, and by it the rights of people become obligatory, and by it, He makes you a mahram of your wife’s mothers and her (i.e. the wife’s) daughters so that you can be their escort during their journey. (whereas) Allah has prescribed a punishment for zina in this world and of hell-fire in the hereafter except if Allah Forgives. Thus (this is a) Qiyas of Haraam, which is a cause of (Allah’s) Wrath, over the Halaal, which is a blessing.
 

Imam Shafa’ee then posed a question:

Consider a woman, who has been divorced thrice and who can become Halaal (for her former husband) only after she has married another man and consummated the marriage (and if by circumstance, this marriage ends due to divorce or other reasons). Will she also become Halaal (for her former husband) by committing zina with somebody else because you do not distinguish between the two copulations?!
 

The Iraqi:

This is a mistake because Allah has made her Halaal (for her former husband), only through nikah to another husband.’
 

Imam Shafa’ee:

Likewise is (i.e. Hurmat al-Masaaharah) that Allah has prohibited (i.e., the prohibition of marriage to women who are mahram by marriage) in His Book by way of nikah with a spouse and by way of consummation of that nikah.
 

The Iraqi asked for an example:

Is there anything that becomes Haraam due to a Halaal (act) but it would not become Haraam due to a Haraam (act)?
 

Imam Shafa’ee:

Yes – A man marries four women (and this is a Halaal practice), which makes it Haraam for him to marry a fifth one. Will it also become Haraam for him (to marry the fifth one) if he commits zina with four women (which is a Haraam practice)?
 

The Iraqi:

No! The Haraam (act) does not prohibit for him what a Halaal (act) prohibits.
 

The Iraqi
then argued:

A woman who apostates (and this is a Haraam action) becomes Haraam for her husband.
[The Iraqi is trying to argue against the rule, ‘Haraam does not make Haraam, that which is Halaal’, and brings the example of the apostate woman so as to prove that, ‘Haraam (apostasy) makes Haraam (i.e. marriage to an apostate woman), that which is Halaal’ (i.e. marriage with the same woman while she was a believer)]
 

Imam Shafa’ee said refuting:

Yes (upon this man), and upon all the creation (i.e. all Muslims)…(*4)
 

The Iraqi:

We have, thus, found a Haraam (act) which makes something Halaal (i.e. marriage) to be Haraam.
 

Imam Shafa’ee:

As far as the issue of our disagreement is concerned with respect to women, this is not the case. [i.e. the example of an apostate woman is not relevant to the case under discussion]
 

What further strengthens the view that Hurmat al-Masaaharah is not established due to adultery is that the rulings which Allah has prescribed pertaining to nikah are not applicable for zina, like iddah (waiting period), mourning (for widows), inheritance, (attribution of) lineage, the obligation of maintenance, khula, divorce, prohibition of marrying more than four women, the obligation of justice and equality between the women, the ruling of revoking divorce, the ruling of being Halaal for the former husband, etc. Moreover, the zaniya (adulteress) does not have a mahr (dowry) and such type of payment is looked down upon by the people, for this is akin to prostitution. Thus, since all these rulings are not established as a result of zina, then how can Hurmat al-Masaaharah singly be established through zina?

Footnotes:
*4: This is similar to the futile argument brought up by a Bareliwi Maulana, Yasin Ahktar Misbahi, who said, ‘Just as if a drop of alcohol or urine is dropped into a glass of water, whether accidentally or deliberately, the water is rendered impure’, he writes, so too, ‘if a woman has sex with her father-in-law, even if through rape, she can no longer remain the lawfully wedded wife of her husband.’ The response to this is just like how Imam Shafa’ee refuted the Iraqi - the impure water will be Haraam for all the Muslims and not just for specific individuals. The comparison is thus, futile and void.


Taken from As-Sunnah Newsletter - http://www.qsep.com

 

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