Showing posts with label Fiqh. Show all posts
Showing posts with label Fiqh. Show all posts

Saturday, 16 April 2016

The Quest for Tranquillity in Marital Life

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When the wedding celebrations are over and husband and wife settle down in their new lives many find it is not what they hoped for or expected. As the euphoria and novelty runs out and gives way to routine and normality, the marriage relationship becomes strained as both spouses struggle to get through life. Constant arguments, bickering and unhappiness pervades the atmosphere with little or no hope of a resolution. This problem in the marital life is so widely felt that we would scarcely find a person who does not know of a close family member or relative who is not in this predicament.

Whilst it is inevitable that not every marriage will succeed or be without its fair share of problems, the marital discord and misery we see today cannot simply be attributed to the incompatibility which can sometimes occur between two people. Rather a deeper study into the widespread problems and misery we witness will reveal that it is due to a lack of the correct criteria and thoughts - this is the cause of disharmony and the lack of tranquillity between spouses. 

If one were to dissect the criteria and thoughts being used by Muslims living in the UK and generally in the West one would find that generally speaking they are caught between two reference points. Do they follow the customs and traditions of their elders in marriage and marital affairs or do they embrace western values? The older generation has by and large stuck to tradition; but the younger generation growing up in the UK is increasingly rejecting tradition in favour of a more western lifestyle. 

As a result we find a whole range of different, and at times contradictory, criteria being used to regulate married life. On one side of the spectrum we have the traditional culture imported from �back home� whether that is from Bangladesh, Pakistan, Africa or the Middle East. Here we see the prevalence of the criteria of �sharam� and �izza� (shame and dignity). These have their roots in Islam but over time they have lost their Islamic character and have become subject to people�s whims and desires. This is why we see the inconsistent and oppressive nature of their application. For instance, zina is and should be viewed as a loathsome kabeerah (great) sin; however we often see that if a man commits it then it can be forgiven and quietly ignored as just something that young men do. However if a woman was found guilty of committing this then she would be ostracised and rejected because she has brought dishonour and scandal to the family. Therefore the true understanding of the sin of zina has been lost in the blur and haze of tradition and a contradictory application is being used.

A similar contradiction from traditional values is the view that a young girl mixing with foreign (ajnabi) men is unacceptable. But on the other hand no shame is felt when the same girl is forced to marry a man without her consent and approval or even sometimes against her will. 

On the other hand we have what can only be described as �half-way� marriages where the concepts and criteria are a jumble of traditional and western values but adopted according to the capitalist criteria of benefit and individual freedom. For example, in such marriages it is not acceptable that the wife would flirt with other men but it is acceptable for her to mix with men, being uncovered and showing her beauty. We also find men carrying the western concept of �not settling down when young� and delaying their marriage until they�ve �had a good time�. And once in their late twenties or early thirties they will do their social and religious duty in an almost ritual trip to Pakistan or Bangladesh to get married. Also we now see the western style of courtship which means finding out if one is compatible or not by dating or �getting to know each other�. Hence, the ubiquitous demand of �friendship leading to marriage� often found in the marriage sections of Asian newspapers and magazines. 

Western Marriages; out of the frying pan and into the fire

The West offers individual freedom as the progressive basis of life, and for many Muslims in the West this has become the preferred basis for marriage over tradition. By individual freedom what�s meant is that an individual is completely free in how he or she lives his or her life. So for example it would be perfectly acceptable on this basis for a man and a woman to cohabit together without a contract of marriage just as it is acceptable for two gay men to get married. Muslims should be aware of the dangers that come with adopting freedom as a criterion and should not allow themselves to be duped into thinking freedom and benefit can ever lead to a superior life. Rather, turning to freedom by rejecting tradition is like jumping out of the frying pan and into the fire. How can the West claim to offer the alternative when its criteria of individual freedom and benefit which by establishing sensual gratification as the paramount concern has led to the misery of millions of people? If we take a quick look at the West�s record we find that in their societies the top five problems in the social and marital life are:
  • Mistrust and Adultery - 70% of American wives commit adultery within 5 years of marriage. 
  • Divorce - one in three end up in divorce. 
  • Rape - 167 women are raped every day in the UK. 
  • Wife battery - a battery incident occurs every 18 seconds in the America. 
  • Child molestation and paedophilia - in Britain a quarter of a million people are known paedophiles!. 


These are the fruits of freedom and these should not be considered surprising but in fact are an inevitable occurrence since a solution proposed by man�s limited mind will never be able to address the intricacies of human life and its requirements. Therefore, we need to refer to the Creator (subhanahu wa ta�aala), Who is All-Aware of His (subhanahu wa ta�aala) creation and how it is that humanity should regulate their lives.


Should not He Who has created know? And He is the Most Kind and Courteous (to His slaves) All-Aware (of everything). [TMQ Mulk:14]

Rejecting Tradition on the Correct Basis

As for taking tradition as our criteria this can never be accepted, as our only criteria is the Revelation of Allah (subhanahu wa ta�aala) and this excludes what our forefathers followed unless it was from what Allah (subhanahu wa ta�aala) and His Messenger (salAllahu alaihi wasallam) brought. In the following ayah, Allah (subhanahu wa ta�aala) tells us the basis of acceptance or rejection of tradition:


And when it is said to them: "Come to what Allah has revealed and unto the Messenger (Muhammad [SalAllahu alaihi wasallam])." They say: "Enough for us is that which we found our fathers following," even though their fathers had no knowledge whatsoever and no guidance!� [TMQ Al-Maidah:104]

The reason it is wrong to follow the forefathers is that they did not follow the Revelation and nor were they guided by Allah�s (subhanahu wa ta�aala) Guidance. So when we reject those areas of tradition, which contradict Islam we should not reject them because they contradict the capitalist concepts of individual freedom and benefit but because they go against what Allah (subhanahu wa ta�aala) has revealed. In other words, just as it is wrong to accept Western love marriages on the basis of freedom and benefit it is equally wrong to reject forced marriages on the basis of the individual freedom and benefit. The reason both should be rejected is that they are contrary to Allah�s (subhanahu wa ta�aala) Revelation and not because they affirm or violate freedom and benefit. Thus, the only criteria a Muslim can follow is the criteria of Halal and Haram and nothing else. 

Marriage: what�s it all about?


The current generation either view marriage as a burden, or a custom and a social duty. They do not understand it is a solution that organises the male-female relationship so as to bring about mutual tranquillity. In fact many are turning to western values because they find the oppressive elements of tradition unpalatable without realising that Islam has a unique solution that befits man�s nature. In Islam marriage is about companionship (suhbah) and not the regimental and strict regime that exists in traditional marriage or the tenuous �partnership� for sex that we find in the West, which is easily dispensed with when the partners get tired or bored. 

Allah �Azza Wa Jall informs us of the Hikmah of marriage;


And among His Signs is this, that He created for you wives from among yourselves, that you may find repose in them (li-taskunoo ilayha), and He has put between you affection and mercy. Verily, in that are indeed signs for a people who reflect. [TMQ Ar-Rum: 21]

In this ayah, Allah (subhanahu wa ta�aala) makes the wife the source of Sakeenah i.e. repose and tranquillity as we can see from the usage of the verb sakana. It is from this same word that we derive the term sakan (dwelling) where people find repose, ease and security when they go home from the toil and tension of outside life. Similarly, married life is a source of tranquillity from the strains and stresses of life and not the other way round.

The concept of rights & responsibilities

The West cite empty slogans of friendship and equality as the basis of marital life but the truth is that what exists is a clash between spouses because there are no defined roles due to the belief in individual freedom. Islam on the other hand did not just talk about companionship but has shown how to realise it by clarifying the rights and responsibilities that spouses have over each other such that they complement each other and bring about mutual fulfilment: 

Allah (subhanahu wa ta�aala) says;


"And they (women) have rights (over their husbands) similar (to those of their husbands) over them, in reasonable terms." [TMQ Al- Baqarah: 228]

Ibn �Abbas used to say, �Indeed I spruce myself up for my wife and she adorns herself for me, and I love that I should redeem all the rights I have over my wife, so that she should redeem all the rights she has over me.� [Reported by Ibn Abi Shaybah in his Musannaf]

Islam clearly outlined the role and the rights of both partners in the marriage. The man is the head of the household and therefore he has the final say in matters. He is responsible for providing the maintenance and residence for his family. The wife�s responsibility is to obey the husband in matters relating to the marital life, tend to the housework and not go out without the permission of her husband. 

These rights and responsibilities are not unknown but the key concept we need to understand is how these rights and responsibilities are discharged. Allah (subhanahu wa ta�aala) informs us:


"And live with them honourably". [TMQ An-Nisa: 19]

He (subhanahu wa ta�aala) has commanded spouses to spend their life together (mu�aasharah) in an honourable and fitting manner (bil-ma�roof). What this means is that they live in an atmosphere of care and benevolence. That is why the Messenger (salAllahu alaihi wasallam) said;

�?? ?? ???? ???????? ?????? ?????? ????? ??????? ?????
�Indeed, the one most complete in Iman (belief) and best in morals is the one who is the kindest to his wives.� [Reported by Ibn Hibban]

In other words, the rights and responsibilities should be discharged in an atmosphere of companionship. To give us an example of what companionship (suhbah) means on a day to day level let us take a glimpse at the life of Muhammad (salAllahu alaihi wasallam), as he says in his own words:

�The best amongst you is the one who is best to his wives and I am best to my wives� [Reported by Ibn Hibban]

Meaning of Companionship (as-Suhbah) 

RasoolAllah (salAllahu alaihi wasallam) taught us that the husband should be reasonable in exacting the rights. For example, the wife is obliged to seek permission before she goes out but this does not mean the husband should prevent her when there is no reason for doing so. Regarding women going to the mosques it has been narrated by Salim bin 'Abdullah from his father that the Prophet (salAllahu alaihi wasallam) said:

�If the wife of any one of you asks permission (to go to the mosque) do not forbid her.� [Reported by Muslim]

Companionship means the husband deals with his wife in a kind and tolerant manner and not in a domineering way. He should not see it as undermining his honour and dignity if his wife disagreed or got angry about something. 'Aaisha (ra) narrated that Allah's Messenger (salAllahu alaihi wasallam) said; 

��I know whether you are angry or pleased.� I said, �How do you know that Oh Messenger of Allah?� He (salAllahu alaihi wasallam) said, �When you are pleased, you say, 'Yes, by the Lord of Muhammad,' but when you are angry, you say, 'No, by the Lord of Abraham!' I said, �Yes, I do not leave, except your name.�" [Reported by Muslim]

In addition, it has been narrated that the Prophet of Allah (salAllahu alaihi wasallam) came into Aaisha�s (ra) room and put his hand on Aaisha�s (ra) knee and whispered something in her ear. She placed her hand over his hand trying to push him away. Umm Mubashhar who was with her at the time said; �How could you do this to Allah�s Messenger?� The Messenger (salAllahu alaihi wasallam) laughed and said; �Leave her; she does this and much worse!� [Reported by al-Bukhari in at-Tarikh]

Companionship means that husbands and wives should help each other in their responsibilities. Just because the wife is responsible for doing the housework does not mean the husband should not help out. Aaisha (ra) describes the behaviour of RasoolAllah (salAllahu alaihi wasallam) when he was in the house - she says; 

�RasoolAllah (salAllahu alaihi wasallam) used to be in the service (mihnah i.e. khidmah) of his family; and when it was time for prayer, he would go out to pray.� [Reported by al-Bukhari] 

Despite being the ruler of Madinah, at home he led a very humble life. Aaisha said; 

�He acted like other men; he would mend his clothes, milk his goat and serve himself.� [Reported by al-Bukhari in al-Adab al-Mufrad]. 

Furthermore, RasoolAllah (salAllahu alaihi wasallam) never lost his temper, even if there was too much salt in the food. Abu Hurairah narrated that; 

�RasoolAllah (salAllahu alaihi wasallam) never criticised the food, if he liked it he ate it and if not he left it� [Reported by Muslim] 

Companionship also means overlooking mistakes or defects that one may not like in ones wife or vice versa. RasoolAllah (salAllahu alaihi wasallam) said: 

�Let not a believing man hate a believing woman. If he dislikes a character in her, he would be pleased with her other characters.� [Reported by Muslim] 

Therefore, the husband should not pick on every little thing and continuously find faults. Rather he should be prepared to forget them by remembering the good qualities his wife has.

Companionship means closeness and intimacy and not an estranged relationship where the spouses rarely talk to each other unless something needs to be done. If one reflects on the nature of married life one can appreciate its importance. So for example, during the day a wife would naturally build up and accumulate many issues that she wants to discuss with her husband. So when the husband comes home she wants, for want of a better word, to �download� all the stresses and difficulties and share them with him. But if the husband comes home and turns on the TV and ignores her then this can be very frustrating for her. That is why if we look to RasoolAllah (salAllahu alaihi wasallam) we see that it was his practise after Isha to spend a part of the evening chatting (samr) with his wives. RasoolAllah (salAllahu alaihi wasallam) also used to joke with his wives. He (salAllahu alaihi wasallam) said:

�Everything in which there is no dhikr (remembrance) of Allah is nonsense, negligence and futile except four things: that a man should joke with his wife�� [Reported by an-Nasa`i]. 

So here RasoolAllah did not consider joking with his wives a useless activity.

Companionship means romance, fondness and affection. Listen to Aaisha (ra), the mother of the believers, when she said: 

�I would drink when I was menstruating, then I would hand it (the vessel) to the Messenger (salAllahu alaihi wasallam) and he would put his mouth where mine had been, and drink, and I would eat flesh from a bone when I was menstruating, then hand it over to the Apostle (salAllahu alaihi wasallam) and he would put his mouth where mine had been.� [Reported by Muslim in Kitab al-Hayd] 

As for his wives they also felt about him in the same way. Ahmad narrated in his Musnad on the authority of Kareemah bin Hummaam that she said to Aaisha: O mother of the believers! What do you say regarding the use of Henna? She replied; 

�My beloved (habeebi i.e. referring to RasoolAllah (salAllahu alaihi wasallam)) used to like it!�

Chatting with Aaisha (ra)�

As mentioned previously, the Prophet (salAllahu alaihi wasallam) used to chat in the evening with his wives. One such evening he told Aaisha (ra) the following beautiful story of eleven women who met in the days of ignorance (jahilliyah) and promised to tell each other the truth about their husbands. The types of husbands described in this story can give us wonderful examples as to the type of qualities a husband should seek or avoid. The first five have reprehensible qualities whilst the rest all have laudable qualities.

Wife number one begins by saying; �My husband is like a bony camel�s meat at the top of a rough mountain. Neither is it easy to reach, nor meaty to desire acquiring.� What she means here is that he husband is unapproachable and not welcoming. When she tries to speak to him he does not listen as if she is not there and when she does manage to get heard he has nothing good to say to her. So the wife feels there�s no point, since the effort is not worth it! Hence, he is described like the useless �bony camel�s meat at the top of a rough mountain� which is frankly not worth the trouble. 

Wife number two�s husband is so full of defects that she doesn�t know where to start, so in fact she doesn�t! She said; �If I start I fear I will not be able to stop.� Some scholars commented on this by saying the second wife violated her agreement because she had promised to recount all the defects and she did not do that. Anyway, perhaps she felt it was a pointless and time-consuming exercise as the defects were innumerable.

Wife number three says the following about her husband; �If I utter a word, I shall surely be divorced. And if I remain silent, I will be suspended.� In other words we are dealing with a husband who is trigger happy with the divorce button. She lives in a state of constant fear that for smallest thing she may be divorced. That is why in another narration she said; �I am always in such a state as if I am under a sharp sword. I do not know when my affair will come to an end.� She finds herself in an impossible situation. She can�t speak otherwise she fears being divorced but on the other hand if she remains silent she faces the prospect of living in a state where she is neither married nor divorced i.e. in limbo or �suspended� as she puts it. Her husband never complements her, brings her gifts or other such token gesture. Rather he thinks just by giving her food and clothing he has done his duty!

Wife number four describes a husband who is selfish and only thinks about himself. She says; �As for my husband, when he eats he devours everything; when he drinks, he does not leave anything. When he sleeps, he sleeps in his own sheet. He does not even touch me, so that he can know the disturbance in my mind.� So when the food is laid he doesn�t ask his wife to join him and at night he sleeps alone not caring about what she is thinking or feeling. 

Wife number five starts by saying; �My husband is extremely helpless and stupid.� And you can see why she describes him this way as she continues, �He would either cut your head, break one of your limbs, or do both to you�. In other words he is a man who severely beats his wife, something which is deplored in Islam unless it was light and for the purpose of discipline when the wife refuses to discharge her marital responsibilities. 

Now we come to the next set of husbands who all have good qualities which every husband should aspire to have.

Wife number six extols the praises of her husband with words that are almost poetic! She says; �My husband is like the night of Tihamah (Makkah and its surroundings) � neither hot nor cold. In his company there is neither fear nor boredom� i.e. here is a husband who is approachable and fun to be with unlike the first husband mentioned above. His company is never boring and she feels completely at ease in his presence.

Wife number seven describes a husband who is confident and strong outside in public but gentle at home � not like those husbands who are gentle outside but feared at home. She says; �My husband, when he enters he acts like a (sleepy) leopard; and when he leaves he acts like a lion.�

Wife number eight has a funny way of describing her husband; �As for my husband, his touch is like that of a rabbit� i.e. she means he is gentle and kind!

Wife number nine and ten both have husbands whose qualities are similar and hence I have grouped them together, i.e. they are generous hosts. Wife number ten says of her husband, �He owns camels that are numerous in their sitting places, and few in the grazing areas. When they hear the sound of the lute, they become certain of their death�. I.e. her husband keeps camels near the house and when they hear the lute playing they know they will be slaughtered. 

Now we come to wife number eleven, the last of the wives, who is named in the hadith as Umm Zara�. She describes her husband, Abu Zara�, in the following way; �My husband was Abu Zara� � and what would you know about Abu Zara�! He made my ears heavy with jewellery, filled my upper arms with flesh (fed me well after my previous state of hunger), and honoured me until my soul was gratified. He took me from among a people with very few sheep and tight living, and placed me among a people who had horses, camels, cows. In his house, I spoke without being rebuffed, slept until late-morning and drank my fill.� As we can see, Abu Zara� was a generous man who treated Umm Zara� immeasurably well and clearly he was the best out of the eleven husbands. 

But there is a sad twist to this story. After many years of happy marriage Abu Zara� divorces Umm Zara� in favour of a younger woman. But even though Umm Zara� remarries and is treated well by her second husband, she still laments the loss of Abu Zara�. It is at this point that RasoolAllah turns to Aaisha (ra) saying:

�O Aaisha! I am to you like Abu Zara� was to Umm Zara� � except that Abu Zara� divorced (her), and I will not divorce you.� Here, RasoolAllah (salAllahu alaihi wasallam) reminds Aaisha of his favours to her which is better than even Abu Zara� whose divorced wife still felt his loss. Aaisha knew this very well and so it is no surprise that she responded, �O Allah�s Messenger! You are better to me than Abu Zara� was to Umm Zara��. [Reported Bukhari, Muslim, an-Nasa`i, at-Tabarani and at-Tirmidhi in his Shama`il with variant wording]

Conclusion

Although this article only focuses on the marital life between spouses there are a whole host of other problems Muslims in Britain and the West face in their social life such as issues of courtship, marriage, divorce, custody, in-law relationships, maintenance and more besides. Increasingly Muslims are being pushed to resolving these problems by adopting western liberal values. Therefore, we need to be alert to the destructive influence of western concepts and criteria in our lives and begin to study the Islamic solutions on the basis of the Islamic criteria.

Finally, marital life is not just about tranquillity in this life. Our fate in the Akhira also depends on us following Allah�s (subhanahu wa ta�aala) commands and prohibitions regarding this issue. Therefore we must seek to ensure we comply with the rules of Islam in order to achieve tranquillity and satisfaction in this life and in the Akhira to save ourselves from the Hellfire and attain everlasting tranquillity in Paradise.

Kamal Abu Zahra

Source: Khilafah Magazine

Saturday, 9 April 2016

Video: Understanding "Difference of Opinion" in Islam Properly

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Sometimes people disagree. That is a fact of life. Sometimes disagreements can be complimentary and can work together, other times one opinion must dominate the other. 

When misunderstood, this topic can lead to unnecessary hostility and friction, or, on the other hand, to unacceptable tolerance and watering down of the truth. How should we approach and understand this issue from the Islamic perspective?

Does Islam allow difference of opinion at all? What about Madhaahib (schools of thought)? Are they a good thing, or are they something that should be eliminated altogether? When should we welcome differences, and when should we shun them?

In this video we discuss the topic of difference of opinion in Islam in a deep and comprehensive manner, identifying the legislative reasoning and limits that Islam places on difference of opinion (called Ikhtilaaf).


Q&A: Evidence for Contracts becoming Batil (void) and Fasid (defective) is based on ijma

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Question:
Respected scholar Ata bin Khalil Abu Rashtah, may Allah ?????? ?????? protect you, Assalamu Alaykom wa Rahmatullah:
It is mentioned in the book, The Islamic Personality Volume 3, that: �Also the Sahaabah may Allah be pleased with them inferred the corruption and the invalidity of contracts from the prohibition, from that is Ibn �Omar�s proof of the invalidity of marrying the polytheist women by the saying of Allah Ta�ala:  ????? ?????????? ?????????????? �Do not marry polytheist women�� and no one disapproved this of him so it was a consensus�.
My question is, Barak Allahu feekum, how is the matter a consensus when the evidence is apparent in the verse?
Wassalamu Alaykom wa Rahmatullah
From Hamdi Al-Husseini


Answer:
Wa Alaykom Assalam Wa Rahmatullah Wa Barakatuhu,
In order to clarify the answer to your question, I will provide the full text that you are asking about, under the chapter: �Prohibition of Dispositions and Contracts�:
The prohibition of dispositions and contracts which benefit their verdicts like the sale, the marriage and the likes returns to either the contract itself or to something else. If it returns to other than the disposition and the contract, like the prohibition of the sale at the call time of the Jumu�ah prayer; it doesn�t invalidate or corrupt the contract or the disposition. But if the prohibition returns to the disposition itself or to the contract itself then it does affect them and make them either invalid or corrupted. The evidence that the prohibition affects the dispositions and makes them invalid or corrupted is the saying of the Messenger ?: �???? ?????? ??????? ?????? ???????? ??????? ?????? ?????� �whoever does an action different to our matter it must be rejected� compiled by Muslim, it means it is invalid and not accepted, and it is undoubtedly that the prohibited matter is not a commanded matter nor is it of the deen, so it is rejected, and there is no meaning for it being rejected except the invalidity and the corruption. Also the Sahaabah may Allah be pleased with them inferred the corruption and the invalidity of contracts from the prohibition, from that is Ibn �Omar�s proof of the invalidity of marrying the polytheist women by the saying of Allah Ta�ala: 
????? ?????????? ??????????????� 
�Do not marry polytheist women��
(Al Baqarah: 221)
and no one disapproved this of him so it is a consensus, and from that is the Companion�s proof of corruption of the riba contracts, i.e. their invalidity, by His ?????? ?????? saying: 
�???????? ??? ?????? ???? ????????� 
��and give up what remains (due to you) from riba (usury)��
(Al Baqarah: 278)
and by the saying of the Messenger ?: �?? ???????? ????????? ??????????? ???? ???????? ??????????� �Do not sell gold by gold and do not sell silver by silver� compiled by Muslim. All these are evidences that the prohibition affects the dispositions and make them invalid or corrupted. This is if the prohibition is a decisive request for abstention and denotes forbiddance, but if the prohibition does not denote forbiddance but denotes dislike; it doesn�t affect the dispositions and the contracts, because the effect comes from the forbiddance, so the forbiddance of the disposition and the contract makes it invalid or corrupted.)
By looking at this text, it becomes apparent that the meaning of Ijmaa� (consensus) in this context is the Ijmaa of Sahaba, may Allah be pleased with them, that the prohibition contained in the saying of Allah ?????? ??????: ????? ?????????? ?????????????? �Do not marry polytheist women�� states the invalidity of the marriage contract, i.e. its nullity, Abdullah bin Omar (ra) deduced from this Verse the invalidity of the marriage contract with polytheist (mushrik) women, and none of the Sahaba denied this, which proves that the Sahaba view the prohibition related to contracts and dispositions in the Shariah texts as mentioned in the Verse above means the invalidity of the contract or the disposition� and this is different to the direct implication of the verse, because the verse indicates a direct prohibition of marrying polytheist women, but the Sahaba consented on top of this that the prohibition contained in the Verse proves the corruption of the contract i.e. its invalidity, so this is the position of the Ijmaa� (consensus), and it is a matter which the Ayah does not reveal, but is showed by the Ijmaa�.
To make the picture clearer for you, I will present to you two matters:
First: a man asks you: is he permitted to marry a Mushrik woman? You will respond: No it is prohibited, then he asks you: what is the evidence? You will reply:????? ?????????? ?????????????? �Do not marry polytheist women�� (Al Baqarah: 221)
Second: A man asks you that he is married to a Mushrik woman, so should he continue (his marriage) or what should he do? In this instance, it is not enough to present the Verse, so if you said to him: ????? ?????????? ?????????????? �Do not marry polytheist women�� (Al Baqarah: 221). He will tell you that he will not do so in the future, but he is asking about his current wife� thus your answer will not be sufficient unless you tell him that the consensus of the Sahaba agreed that the prohibition contained in the Verse proves the invalidity of the contract, i.e. you answer him that he should end his marriage contract with his wife because it is a nullified contract as the prohibition in the Verse to further the nullity of the contract by Ijmaa�.
While you believe here that the answer is not complete without mentioning the Verse, and you say that a prohibition lies in the Verse, then you add by saying that the meaning of the prohibition by Ijmaa� is the invalidity of the contract, without the Ijmaa stating that the prohibition benefits that invalidity of the contract, you would have not been able to answer his question on his previous marriage.
I hope that the matter has been clarified for you.
Your brother,
Ata Bin Khalil Abu Al-Rashtah
17 Jumada Ath-Thani 1437 AH
26/03/2016 CE
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Friday, 8 April 2016

University Loans; a response.

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This article is from Intellectual Issuance blog.

All praise is due to the Almighty Allah ?.
I write this article in light of a recent student finance seminar led by my brother and senior in Islam, Shaykh Haitham Al-Haddad. I first wish to inform the reader of something that he/she should know; it is important that you think for yourself. Ever since our decline, we have forever passed on our cognition to another on matters that we are able to evaluate, leaving our minds desolate and unable to understand a given reality.
For those who question the validity of this article, please know it is built upon the work of the eminent mujtahid Sheikh Taqiuddin al-Nabahani, whom graduated from Al-Azhar University and the Dar-ul-Ulum college of Cairo, primarily upon his two renowned books; �Economic System in Islam� and �Islamic Personality�, both of which I will cite here:
Al-Nabhani, T., 1990. The Economic System In Islam. Fourth edition.London: Al-Khilafah Publications. Al-Nabhani, T., 2005. Islamic Personality (al-Shaksiyyah al-Islamiyyah). London: Al-Khilafah Publications.
Having said this, I wish to point out that this is not a scholarly issue per se. By this I mean that if a reality is explicit to the Muslim and the hukm to that reality is also clearly understood, then the natural conclusion would be intelligible, i.e this point is not contingent upon a Mujtahid. For example: A scholar does not have to let us know that interest is haraam for it to be so (as this is qatai), nor do we need him to let us know that interest based loans are haraam for the same reason. Finally, this should not be understood as an attack on Sheikh Haitham, rather an analysis and critique of the ideas he has put forward in this seminar, and those who read this should take it as such. If anyone wishes to put forward a rebuttal, I will only ask of them to not be ad hominem nor superficial about it.
In the seminar, Sheikh Haitham began by stating a rule in Islam, that everything is halal except if there is a clear evidence provided to say it isn�t (for all matters except ibadah).
In actuality, this is inaccurate. In fact, it is the very misconception and misapplication of this principle that contributed to the demise of the khilafah, whereby new realities came unto the ottomans (such as legislation, et cetera) only for them to accept them as halal (due to a lack of evidence) when they were indeed far from it. Whilst the discussion is indeed intricate, the principle comes to be, as Sheikh Taqiuddin has put it; that every �thing� (that is to say object) is permitted, �unless there is an evidence of prohibition and that all human actions are, in origin, restricted by the divine rules (aHkaam shar�iyyah), and no action can be undertaken until its rule (Hukm) is known�.
He then defined riba, as exchanging items for different amounts of the same item, that is to say exchanging money for a different amount of money.
Riba (usury) is however different from sarf (currency exchange). Sarf is taking one thing for another in the same type equally, or two different types equally (i.e exchanging one currency for another) and only takes place in the form of trade (Bay�u). Whereas Riba occurs in trade, but also in a loan (Qardh) and or in Salam (forward buying).
We must be concerned with the concept of Qardh here, as university loans are a form of loan that is taken out by the student whom repays it above a threshold to the government. In terms of a loan, interest is present in all its forms and must be regulated as such, that is to say it is haraam for a person to lend something to another person and expect more or less for it in return. Whilst Bay�u and Sarf can be exchanged for a different type and or amount, the loan (Qardh) can only be exchanged for the same amount and nothing else.
He then spoke about Mudarabah, as a justification for student loans.
�Mudharaba is a contract where two persons (or more) participate in trading, where the capital comes from one of them and the work from the other. This means that the work will be carried out by one of them and the other will provide the property. The two partners agree on a certain share of the profit. An example of this is when one of them provides one thousand pounds and the other person works with it, and the profit is divided between them. So Mudharaba is a kind of work which is a legal means of ownership.�
Firstly, it is quite clear that to use this contract and link it to a student loan is absolutely erroneous for the following reasons: 1) Taking a loan from the government is not akin to initiating a contract between two partners whom seek to work together for business, this is a contract between a creditor and a debtor, namely a student and the government. 2) Profit is only involved for one party (the government) as opposed to both 3) This is an investment based contract which is different to that of the contract for a loan, whereby partners are tied only by the amount they owe or lent each other as opposed to the capital/effort they have invested. 4) The government lends to the student purely for their education and not for the job they may or may not attain, hence there is no profit upon a degree that the student is expected to make, thus mudharaba is not applicable 5) Finally, and perhaps most importantly, the subject matter upon which Mudarabah is concluded must be permissible in Islam � which in this case it is not (as it is an interest based loan).
This is in reality a loan and hence the hukm applies to it in that sense. Anyone who believes that this is not a loan with interest on it is honestly, in my humble opinion, trying to avoid the brute reality with obscure reasons just to get a degree. The reality is blatant but the reasoning seems to be complex.
The question that must be asked is, what is the nature of the subject matter (student loans) here? The respected scholar Sheikh Haytham al-Haddad has unfortunately used a specific investment contract and misapplied it to another one of Qardh.
In fact, to call this an investment is utterly absurd, for according to Islam, I would not have to pay an ounce of my income back to the government, rather suffer the losses on what I invested, which according to the Sheikh, is myself, which has no place in Islamic financial contracts. Rather this is clearly a loan and not an investment, for it is a duty upon the debtor to repay the creditor with interest upon what was borrowed.
What is the reality of a loan?
A loan can be defined by an agreement between two parties in which one gives the other a sum of money with the expectation of it being paid back in full amount. The one who supplies the money is known as the lender and the one who takes it is known as the borrower. The borrower is said to be in debt to the lender.
What is the reality of a university?
A university is an educational institution, in which students attain academic qualifications and a place where research is done. In the United Kingdom, universities charge students a fee of �9000, in exchange for their academic services. These are known as tuition fees and are standardised at the aforementioned amount.

What is the reality of interest?
According to the Oxford dictionary, Interest can be defined by �money paid regularly at a particular rate for the use of money lent, or for delaying the repayment of a debt�. In Islam, �riba� is understood to be the process of making money upon money, that is the surplus on top of the principal.
What is the reality of Student Finance England (SFE) and Student Loans Company (SLC)?
The former is a government owned regulatory body, which administrates student applications in respect to their finance. The latter is a non-profit, government owned organisation that aims to �provide loans and grants to students in universities and colleges�.
What is the reality of the interest based university loan system?
This information has been taken directly from UCAS, the SLC and SFE. The student applies for a tuition fee loan of �9000 through SFE by signing a specific contract, in which it is clearly stated that interest is charged. The SLC behaves as an intermediary by paying the tuition fees to the university whilst the student is left in debt to the government. The student ultimately pays back this loan through a PAYE scheme once he/she earns above a threshold and has graduated.
To clarify, the student initiates this loan by signing the contract with SFE. Although the student may never see the money he/she borrowed, it is paid on their behalf to the university by the SLC. What happens with this money is irrelevant as the debt lies between the student and the government-based organisation and this matter is not altered when the SLC pays the university on the student�s behalf.
Is interest permitted in Islam?
As primitive as it seems, the answer to this question is no. It is categorically forbidden and it is a major sin. Allah swt says: �O you who believe, fear Allah and give up what remains of your demand for riba, if you are indeed believers. If you do it not, take notice of war from Allah and His Messenger.� (2:278-279).
Hence it is clear, even from the mouths of the ones who credit the funds to the debtor, that the student loan is comprised of interest and interest is strictly forbidden by Allah, a matter which would, if he took it, initiate war against the Almighty.
If you are still doubtful on this very clear matter, then know the following evidence:
Ab� `Abd Allah al-Nu`m�n b. Bash�r relates that he heard Allah�s Messenger (peace be upon him) say: �That which is lawful is clear and that which is unlawful is clear. Between the two are doubtful matters that few people have knowledge about. Whoever avoids these doubtful matters absolves himself of blame with respect to his religion and his honor. Whoever falls into doubtful things will fall into what is unlawful, just like the shepherd who grazes his flock too close to a private pasture is liable to have some of his flock stray into it. Every king has a private pasture, and Allah�s private pasture is what he has prohibited. Verily, in the body is a small piece of flesh that if it is healthy, the whole body is healthy and if it is sick, the whole body is sick. This small piece of flesh is the heart.�
[Sah�h al-Bukh�r� and Sah�h Muslim]
Finally, I wish to inform those who read this, that there are viable alternatives to university and also feasible routes to attaining the funds necessary for a degree.
For those who have their heart set on university: It is possible to reduce your tuition costs with bursaries/scholarships/grants available from your own university (which do not involve interest and are simple offer and acceptance contracts which transfer funds from the government or university to the student without the expectation of repayment). It may also be wise to seek an apprenticeship or a firm which can actually fund your academic qualification. Perhaps consider working for a year or two, so as to save funds for all three years (or even intermittently between years). There are also many reputable universities in Europe and abroad, whose tuition fees are often much lower. As a last resort, it may be possible to borrow from family and or friends (with no interest of course).
For those who are indifferent and merely want a career: Internships are becoming very popular, especially post rise in tuition fees. I know of many students that have taken their A-level and IB grades to pursue experience based careers. In fact, most of these students began apprenticeship and internship programs or from the bottom of a job in their desired field so as to work their way up � and they have done just that.
That being said, if you have the relevant funds to go through an academic institution without committing haraam, then I would definitely recommend it!
And I leave the rest unto Allah, for indeed He knows best. Ws.

Saturday, 12 March 2016

Q&A: Can Private Property become Public Property?

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Question:
Assalaamu Alaikum our honourable Sheikh, I would like to ask you a question regarding public ownership.  Can a private ownership transfer to a public ownership in accordance to the Shariah rules, like transferring water springs from a private ownership into public property if that is needed for the public good? And if the public no longer needs it, does it revert as private property? Similar to oil wells when they are depleted, can they become a private property?
Thank you, and May Allah help you and make your foothold strong, Wa Assalaamu Alaikum Wa Rahmatullah Wa Barakatuhu
From Nadir Az-Za�tari


Answer:
Wa Alaikum us Salaam Wa Rahmatullah Wa Barakaatuhu,
If any type of public ownership was as a result of a divine reason (�illah), then the rule will follow this divine reason, whether it exists or in its absence. If the �illah is present then that public ownership will remain, but if it was absent, then it will be permitted to privately own that type of property, however on the condition that the �illah is Shar�i found in a Shar�i text.
For example, public utilities are considered as public property, which have been explained by the Prophet ? in the Hadeeth in terms of its description, and not its quantity: On the authority of Ibn Abbas that the Prophet ? said:
�???????? ????? ?? ???? ?? ????? ?????? ??????�
�People are partners in three: Water, Pasture, and fire.� Narrated by Abu Dawoud and narrated by Anas from the Hadeeth of Ibn Abbas and he added: �????? ????� �And its price is Haram�.
Ibn Majah narrated from Abu Huraira that the Prophet ? said:
�???? ?? ?????: ????? ?????? ??????�
�Three that must not be prevented: Water, Pasture, and Fire.�
This is the evidence that people are partners in water, pasture, and fire; and that they are not permitted for ownership by individuals.
However, the Prophet ? permitted individuals to own water in Ta�if and Khaibar, and they did so to irrigate their plants and fields.
Similarly, some Muslims privately owned wells in Medina; Bukhari narrated on the authority of Abdullah (ra) from the Prophet ? that he said:
�???? ?????? ????? ??????? ?????????? ????? ????? ??????? ????????? ???? ????????? ???????? ?????? ??????? ?????? ???????? ?????????�
�Whosoever gives oaths falsely to take the wealth of a Muslim illegitimately, he is a fajir (wicked), and will meet Allah while He ?????? ?????? is angry with him.�
And Allah ?????? ?????? revealed:
????? ????????? ??????????? ???????? ??????? ??????????????? ??????? ????????
�Indeed those who exchange the covenant of Allah and their [own] oaths for a small price.�
(Al-i-Imran: 77)
Al-Ash�ath came and said: An Ayah was revealed about what Abu Abdul Rahman spoke to you about me, I had a well in the land of my cousin, he asked:�?????????�  �Your witnesses�, I said I do not have witnesses, he said: �???????????� �his oath (is required)�, I said: O Messenger of Allah, then he must give an oath, then the Prophet ? mentioned this Hadeeth, and Allah ?????? ?????? revealed the Ayah to support His truth.� End quote
If partnership in water, in and of itself, and not because of the need for it, it would have not been permitted for individuals to own it. From the saying of the Prophet ?:
�???????? ????? ?? ???? ?? ?????�..
�People are partners in three: water��
And the permission given by the Prophet ? to individuals to own water, this extracts the �illah in the partnership in water, pasture and fire, and it is from the public utilities that people can not live without.
Hence the Hadeeth has mentioned three but they are based on �illah because they are public utilities. Therefore  this �illah follows what is reasoned in its existance and absence; so anything that is considered as public utility is considerd as public property, but if it is not considered as public utility even if it was mentioned in the Hadeeth like water, then it is not public property, but it is considered as property that can be privately owned. Public utilities are decided when all resources are not available for a group of people, whether it is a group living in house made of tents, or living in a village or city or a state, and have disputed to get it, is considered public utility, like water source, pastures or woods, grazing areas for cattle, and the like.
-e.g. Minerals are considered as public property if found in abundance, like in mines and the like, these minerals are public property, and it is not permitted to be owned by individuals, due to what Tirmithi narrated from Abyadh Bin Jamal:
�??? ??? ??? ???? ???? r? ???????? ????? ???? ??? ???? ?? ????? ??? ??? ?? ??????: ????? ?? ???? ??? ???? ???? ?? ????? ??????? ???: ??????? ???�
�He came to the Prophet ? and asked to assign him a salt (mine),  so He ? did, when he left, a man from his ? council said: Are you aware of what you assigned him? You assigned him a perennial (�id) spring of water, he  said: so he took it back from him.�
��Id� water is the continuous source of water, he drew the similarity between salt and water for its unlimited source. This Hadeeth is an evidence that the Prophet ? has given a portion of mountain salt for Abyadh Bin Jamal, but when he ? found out that the mineral is unlimited, he took it back from him and prevented its private ownership, i.e. it is public property.  Salt here is an example of a mineral, what is intended is the mineral not the salt. From this Hadeeth it is cear that the�illah of prevention of giving the portion of the mineral of salt is that it is �Id i.e. unlimited.
This ruling, that the unlimited mineral is a public property, which includes all minerals whether they are on the surface and easily accessed that people frequent and use, like salt, coal, emerald and the like, or it was found underground, that needs to be extracted with equipment, like gold, silver, iron, bronze, lead, and the like. And whether it is solid like crystals or liquid like oil, they are are minerals that come under the Hadeeth. Since unlimited minerals are public property for all citizens, the state is not permitted to give its ownership to individuals, companies, or allow individual or companies to extract them for their own use; instead the state must extract them itself on behalf of the Muslims, in looking after their affairs, and all that it extracts from them is public property for all the citizens.
Therefore, the property mentioned in the question will be considered as public ownership if they are public utilities, e.g. the water well in a village which is the only source of water, it is a public property and not allowed for individual ownership� But if the people in the village have another sufficient source of water, it will be permitted for an individual to dig a well in his land and own it, because it is not from the public utilities in this case, i.e. that the �illah of its public property is absent. But the well which was a public property does not become a private property but remains as a public property and it will be allowed to sell to individuals if there is sufficient water for the people and then it will be priced for the private ownership.
Hence, the water well is a public property if the people have no other source, but if there was an depletes or the people do not need it any more, i.e. the �illah is absent of it being a public utility, by the presence of a sufficient source of water, then it will be permitted to sell that well to individuals and it�s priced for private ownership. Oil wells for example are public utilities as long as it is unlimited, but if there were depletes, i.e. the �illah for being a public property is absent, then it is allowed to sell this well for people and its price is put for private ownership.

Your brother,
Ata Bin Khalil Abu Al-Rashtah
15 Jumada I 1437 AH
24/2/2016 CE

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