Exception, exclusion, distinction (Istisnaa’)
Literally the word `ISTISNA' means `exception', exclusion or exemption, but in the lexicon of the Shariat it stands to say "Insha Allah" (If Allah wills) while undertaking any steps, It is to express reliance in the Providence. But in the context of `Talaq', the phrase `Inshaa Allah', has a special significance, and it is that the phrase must be spoken in continuance of intended statement (decision) without undue gap and in such a voice that others presence should hear it (the deaf are excluded). However it must be clearly born in mind that to say `Insha Allah' (if Allah wills) is to make the will of Allah conditional and shirking his own responsibility, as the problems (Masa'il) presented here clearly indicate.
PROBLEM:- He said to his wife `Talaq on you Insha Allah Ta'ala', This will not amount to Talaq, even if the woman dies before he says `Insha Allah'. If he says `Talaq on you' and dies without saying Insha Allah, although it was his intention to say it, it will amount to Talaq, which was intention before his death (but since he could not utter it, it will be taken as not having been said).
PROBLEM:- Said he to his wife, `Talaq on you, if Allah will or if Allah will not or any such phrase which indicate man's will on the condition of Allah's will power, intent etc., then no Talaq will take place (since his intention is conditional to Allah's assent which cannot be ascertained by human beings - Translator)
On the contrary if he says Talaq to you on the Order (Am'r) of Allah, or with the Permission (Izn), or on the Will (Mashiyat) of Allah or as Allah has ordained (Qaza) or the intention (Iradah) of Allah or he utters Insha Allah before giving Talaq, in all these cases, the Talaq will not take place, as in them the intent of the man is assertive or it secondary subject to exceptions which all relate to Allah the Almighty.
PROBLEM:- While pronouncing 3 Talaqs if he takes recourse to Istisna in respect of one or two Talaqs, then this will be in order which means that whatever remains unaffected by Istisna will be affected by Talaq.
TALAQ of the Sick person
By the word `sick' is meant that person against whom it can be reasonably suspected that will not survive, because his sickness has incapacitated him for any manual work and sooner than later he would die.
PROBLEM:- When a patient of this type gives Talaq to his wife with the intention of depriving her of inheritance. This is known as "F'ar bit Talaq". (Necessary details of this kind of Talaq are being given later).
PROBLEM:- Any man fighting with an enemy (where he is likely to be killed) is also at par with a patient on the death, though he is not from any fatal disease. Similarly if a man is to be killed in ransom for a murder committed by him or he is to be stoned to death, or a man who has been attacked by a lion (or any animal) causing deep wound which may cause his death, or he is suiting in a boat which capsizes or gets broken and he is likely to be drowned, all these persons come within the definition of a "fatally sick" person. But when the cause of this imminent danger is removed and later dies for some other reason, his case will no longer remain within this purview.
PROBLEM:- The patient acts for example, he puts his property in `Trust' (waqf) or gives it as a gift (hiba) or marries a woman on a Meher more than the amount of Meher-e-Misl (commonly in vogue in his fraternity) he can exercise his authority only upto the one third of his property (maximum limit wander a wasiyat will).
PROBLEM:- A man gives Talaq-e-Raj'ee, but dies within the period of her Iddat, the woman will be the sole inheritor of his property, irrespective of the fact whether he gave the Talaq while he was in good health, with or without the consent of the woman.
PROBLEM:- He gives Talaq-e-Ba'in, while he suffering from a mortal /fatal disease, without the consent of the woman and dies within the period of her Iddat. In that event she will inherit his property, provided she is otherwise entitled to it being a mominah and Hurra (a believing and Free woman not a slave girl).
PROBLEM:- The law of inheritance of the woman becoming the sole owner of her husband's property when he dies in her Iddat is not restricted to death in mortal disease, it equally applies to other cases of separation (not necessarily Talaq) when the relation of marital bond get broken for other reasons, for example, when the man gives Baa'in to his wife on account of or he kisses the mother or daughter of the woman out of lust for denounces his religion. The separation or estrangement so caused will make the woman inheritors of her husband's property. However the estrangement/separation caused by any act on the part of the woman will not entitle her for example if she kisses the son of her son with lust or gives up the religion or receives Khula (separation demand and obtained the order of separation by from the court or any delegated authority). Similarly, if the separation comes on account of some other person, for example, if the son of the husband kisses the woman, even forcibly, then she will not be entitled, but if the son kisses the woman with the permission of his father, then in the latter event she will inherit the property.
PROBLEM:- The patient had given three Talaqs to the woman, there she returned apostate, and became Musalman again, now if the man dies, she will not inherit the property, even though the period of her Iddat may not be over.
PROBLEM:- The woman had asked for a Talaq-e-Raj'ee or a simple Talaq , but the man gave her Talaq-e-Baa'in or Three Talaqs and dies in her Iddat, the woman will inherit, Similarly if she gives Three Talaqs to herself which the man had approved, but he dies in her Iddat, she will be entitled. Or if the man has given the woman the right to divorce herself which the woman has exercised. In this case she will not be entitled to inherit.
PROBLEM:- The diseased man gave Talaq-e-Baa'in to his wife, but the wife dies in her Iddat, then he will not be entitled to her property. However, if it is a Talaq-e-Raj'ee, he will be entitled.
PROBLEM:- The woman was a patient person, but he committed some such act which caused separation with her husband for example and or she kissed the son of her husband etc and then she dies, now the man will inherit her property.
PROBLEM:- The man says,`If I fall sick, then it will be Talaq to you". He falls sick and the Talaq will take place, If he dies in her Iddat, she will be entitled.
PROBLEM:- After the death of her husband the woman says that he had given her Talaq-e-Baa'in in his mortal sickness, but he died while she was in her Iddat. Now she claims inheritance to his property. But the inheritors contend her statement and say that he had divorced her when he was healthy, and as such she is not entitled to any inheritance. In such a situation, the statement of the woman shall be relied upon and accepted as correct.
Raj'at (To restore Marital Relations).
The literal meaning of the word is to go back return to former position place etc. But in the context of Nikah and Talaq it stands for the restoration of conjugal relation with a woman who has been given the Talaq-e-Rajee or Restorative Divorce during her Iddat on the basis and conditions of the original Nikah.
PROBLEM:- Raj'at is permissible only when the sexual intercourse has taken place with the divorced wife, without this restoration of conjugal relation is not allowed, even if he had for play with his wife in perfect privacy which means touching the woman with a feeling of passion or lust or he has simply cast his eyes into the private part of the body.
PROBLEM:- The Raj'at will not be effective if it is conditional on a thing or act which is not specific in nature or meaning, However to utter words of separation as a joke or by mistake, the Talaq-e-Raj'ee will take place.
PROBLEM:- Some other person spoke the woods of Raj'ee and the husband confirm it. The Raj'at falls due.
PROBLEM:- The correct procedure according to sunnat is that he must take recourse to restoration with a statement of clear meaning and to make two wise persons as witness to it and also inform the woman of his intentions so that she may not marry with any other persons after her Iddat. And if she marries, then separation with the other husband should be enforced. In the event of defective or incorrect `raj'at' the process should be rectified in presence of witnesses.
PROBLEM:- The man exercises the Raj'at but does not inform the woman who in the absence of the knowledge marries another man after her Iddat. The man's claim for `raj'at' will have to be examined, If found correct, separation with the second will be effected, even if the latter had intercourse with her. The words of Raj'at according to Urdu vocabulary are.
(1) =I restore my (conjugal) rights with you.
(2) =I restore my (conjugal) rights to my wife
(3) =I take you back (as my wife)
(4) =I have detained you (as my wife)
There are the clear words of Raj'at without any ambiguity, even if no intent is pronounced some other words in this context will justify (restoration) Raj'at, but they must be spoken with clear intention. On the words of Nikah, the raj'at will be justified.
PROBLEM:- In the matter of Raj'at willingness of the woman is not necessary. Even if she refuses, the Raj'at will stand unaffected.
PROBLEM:- The husband and the wife both agree that the Iddat has been completed, but there is difference between them about the Raj'at. One says that the Raj'at has taken place, but the other desires it, in this the statement of the wife is reliable and there is no need for taking oath. If the disagreement has taken place during the Iddat then the husband's words are worth trust. If after the Iddat, the husband on the basis of witnesses that he had said during the Iddat that he had taken her back and that he had intercourse with her, this will confirm that Raj'at has taken place.
PROBLEM:- After the completion of Iddat the husband says that has done the raj'at during the Iddat and the wife corroborates this, then the raj'at stands as having taken place. However, if she denies, then there has been no raj'at.
PROBLEM:- The woman whom her husband has given less three Talaq Ba'in can come in his Nikah even during the Iddat as well as afterwards. If he has give three Talaqs he cannot marry her without halala (Please see next problem). She cannot marry another man without completing her Iddat, whether she has been given three Talaq or less.
PROBLEM:- The condition for Halala is that if the woman who has under gone sexual intercourse, should marry another man after the completion of Iddat in the according Islamic tenets and after having sexual intercourse with the second man secures Talaq from him and again completes period of Iddat, can re-marry her first husband.
However if the woman had no intercourse with her husband and the latter gives her Talaq in that condition, then she can straight away marry another man of her choice because there is no Iddat for a woman who had no sexual intercourse.
PROBLEM:- In reference to Halala the basic point is that the woman must have sexual experience which makes the bath as obligatory which means that at last the penetration of the head (hashfa) of the male orgain in her private part, should be accomplished, emission of semen is not a condition.
PROBLEM:- After marrying a woman under an defective / incomplete Nikah, if the man gives three Talaqs to her, he can marry her again without the intermediary agent of Halalah.
Eelaa in shariat's tenets means the statements on oath by the husband in respect of his wife that he will not go near her (for sexual union) or he swear that he will not meet her sexually for four months. If the wife is a slave girl then the Iddat of Eelaa will be for two months. The swearing in Eelaa is of two kinds (1) The swirling or oath in the Name of Allah the Almighty, His Attributes or the Holy Quran, the others (2) Kind of oath is of relative or conditional nature, for example, he says, `If I commit sexual act, then my slave is freed' or my wife is divorced or keeping fast for so many days or performing Haj is binding on me.
PROBLEM:- Eela is of two kind (1) Eelaa-e-Muwaqqat (of limited period) the duration of which is four months and (2) the other is Eelaa-e-Mu'bad (timeless Eelaa) in which there is no time limit of four months. In either case he commits sexual intercourse within four months, the oath shall be deemed as broken or violated (even if he be a lunatic) and Kaffara (compensation) shall be due on him and the thing on which the oath was taken will be taken as having occurred, such as freeing the slave or keeping fast etc. On the other hand if he does not her does not meet her sexually even after the expiry of Eelaa-Iddat, it will mean a Talaq-e-Baa'in on the woman which would demand a fresh Nikah, but the oath shall still stand. If the process is repeated three times then without Halalah be cannot re-marry her. (Note: Here again the process is ultra complex and needs deep and careful study, the interested readers may see the details at pages 256 - 257 of the Original Book in Urdu `Qanoon-e-Shariat'. Translator)
PROBLEM:- Eelaa can be done only with his wife or the wife under the Talaq-e-Raj'ee who can reunite with her within the Iddat, and as such she is also a wife in this context.
PROBLEM:- Another condition for Eelaa is that the husband able to give Talaq. Therefore the Eelaa by a minor or mentally deranged husband is not valid, it is also necessary the duration of Eela should not be less than four months nor should a particular place be fixed for the Eela purporting thereby that he would meet her sexually at such and such place, it is also necessary that he should conjoin a slave girl or a stranger woman as part of Eelaa.
PROBLEM:- Some words of Eelaa are self expressive (sareeh) while some words are illusory or suggestive (Kinayah). The words in the first category (sareeh) leave no doubt in the mind that the intention behind the speaker's mind is sexual union with the wife. In this case the expressed intention (Niyet) is not necessary, without Niyhe Eelaa can take place. The words in the Kinayah group (illusory) may also carry meaning other than sexual act. In the event of Kinayah no Eelaa can take place without the Niyet.
PROBLEM:- If he says to his wife that if he has sexual contact with her she will be har'am (forbidden) to him and the intention (niyet) is of Eelaa, then Eelaa will occur.
PROBLEM: - IF he makes the meeting his sexually conditional upon such things which are not likely to occur within four months, then this will amount to Eelaa.
PROBLEM:- He has done Eelaa and wants to break the oath within the time limit, but he is unable to do so because of his physical in capacity for any reason to have sexual intercourse with his wife and the wife herself is unable/unwilling to allow this fulfillment, then in such a case he should withdraw Eelaa by words of mouth, preferable in presence of witnesses, in this way Eelaa will come to an end and not Talaq will occur. If however the physical cause of incapacity to sexual union is removed, then his verbal termination of Eelaa will not be enough, he must his wife sexually and fulfill the primary condition of ending of Eelaa.
PROBLEM:- In the case of incapacity of sexual union for any reason, the intention of re-union must be expressed in words, mere desiring at heart is not enough.
PROBLEM:- There is no substitute for the natural sexual intercourse, merely kissing with passion or touching her body with lust or looking at her private part or commit sexual act at any other place will not fulfill the condition of Raj'at as a condition for breaking Eelaa.
PROBLEM:- Sexual intercourse during menses is a grave misdeed, however the Eelaa will be removed.
PROBLEM:- If difference arises between the husband and the wife during the Eelaa, the statement of the husband should be accepted. When in this event, the wife is proved liar, it is not advisable to keep the woman, she should be separated by giving her some relief.
PROBLEM:- The man says to his wife that she is haram on him, if the niyet is of Eelaa, then it is Eela, if the niyet is of Zihaar, then it is so. Otherwise it is Talaq-e-Baa'in, if the niyet is three Talaqs, it is so. If the woman says to her husband, "I am haram on you", then amounts to an oath. Now if the husband forcibly or with the consent of the woman has a sexual intercourse with her then the woman will have to pay the Kaffarah.
PROBLEM:- IF the man forbids his wife as haram on him like the corpse (dead body), the flesh and blood of the swine, wine, then if the idea is to show his dislike as something false, then it is the he or false hood or if the intention is to brand her haram on him then it is Eelaa and if he has Talaq in his mind, then it is Talaq.
PROBLEM:- The husband says to his wife, `You are my mother', and the intention is to speak of her as being haram, then she will not be haram rather, it is a lie.
KHU'LA: The word `Khula' literally means throwing off, deposing, removing from office. But in matrimonial philology it stands for a divorce obtained by a wife for a ransom by her or some other person on her behalf. It means to waive or write off the Nikah in exchange of something, money or material etc. The consent of the woman is essential without her agreement Khula will not be valid. The terms/pattern of Khula have been set down and cannot changed materially.
PROBLEM:- If there is constant strife between the husband and the wife and there is danger that they cannot peacefully and according to the tenets of Islam, then "Khula" is the solution which means arranging separation between man and wife. The Khula in this respect will be Talaq-e-Baa'in and whatever the amount has been agreed will have to be paid by the woman.
PROBLEM:- Whatever is accepted as Meher can be exchanged for the Khula, but a thing which is not acceptable as Meher can be accepted in the `Khula'.
PROBLEM:- Khula holds the right of the man for a Talaq-e-Baa'in subject to the woman acceptance of the terms of khula, meaning there by if the woman agrees to the pay the amount to the man, separation between them will be effected as if on the basis of Talaq-e-Baain by the man. Therefore if the utters the words of Khula which has not yet accepted it, the man has no right to go back to her (Raj'at), neither has he nor with the change of majlis (where the proceedings are taking place) invalidate the Khula.
PROBLEM:- `Khula' is the instrument in the hand of the woman to get herself released from the bondage of her husband. Then fore if she has begin the proceedings of Khula which the man has not yet declared his acceptance, the woman can and get the stay of Khula (in a sense, it is Rujoo’ by the woman) for three days or even more.
PROBLEM:- Since Khula is the compensation to be received by the woman, it is essential that she understands the terms of Khula and if she gives consent without understanding it clearly, the Khula will not be valid.
PROBLEM:- Since Khula is the Talaq by the husband it is necessary that the husband be adult and of sound senses, a lunatic or underage cannot exercise the rights of Khula. It is necessary as a precondition that the woman must in a state of the Talaq being given to her. Therefore if she has been given the Talaq-e-Baain, no khula can take place with her, even if she be in Iddat. However if she is in Iddat of Talaq-e-Raj'ee, Khula in this condition will be valid.
PROBLEM:- The man says to his wife that he has done Khula, but does not mention the amount in this behalf, it will not be a khula, it will be a Talaq for which the woman's consent is not necessary.
PROBLEM:- The man said to his wife, `I have done Khula with you on so and so amount', But the woman says only `Yes'. This is incomplete and the khula will not place unless `I accept it' or `I declare it as approved.' Similarly, if the woman demands one thousand rupees in pursuance of the Talaq and the husband agrees. This also is not correct. But if the woman says that Talaq is on her in exchange of a Talaq. Then Talaq will take place.
PROBLEM:- Whatever the rights/privilege are agreed upon at the time of Nikah shall stand withdrawn on the khula. But whatever the rights are beside those mentioned acceptance of in the nikah, will remain unaffected. The right of maintenance, although a part of nikah, will remain, unless it is mutually agreed by both as a condition of khula.
PROBLEM:- The man gave Talaq Baain and married the same woman and then had a khula with her on the meher as ransom money for khula. In such a case the second meher on which the khula was agreed will lapse while be first meher will stand.
PROBLEM:- A `Khula' was agreed with the wife that she will arrange another marriage with some woman and that she will pay the Meher. In this case the woman will have to return the Meher she has received from her husband and nothing more.
PROBLEM:- I `Khula' is agreed on haram things (like swine some dead animal, blood and wine) which do not come within the purview of Amount (on which Khula takes place on mutual acceptance), it will not be Khula but it will be Talaq-e-Baain and nothing is due from the payment, If the Talaq is given on these things, then it will be Talaq Raj'ee.
PROBLEM:- It is said to the woman,`I make Khula with you' and the woman `I accept it.' If the husband had said these words with the intent of Talaq, then it will be Talaq Baain and the Meher will not lapse. Even if the woman does not accept, the position will not change. If the husband had not said these words with the intent then the Talaq will not take place unless the woman agrees. If after the acceptance by the woman, the man says my aim was not Talaq then the statement of the husband will not be accepted.
PROBLEM:- Khula can also take in the parlance of trade business. If the man says `I sell your Talaq to you at so and so price', and the woman announces in the same sitting, `I accept it,' Then the Talaq will occur. Similarly if the Talaq is said at the cost of meher and she accepts it, then in that event it will be Talaq-e-Raj'ee.
PROBLEM:- The people asked the woman if she had purchased her person (self freedom) at the cost of the meher and the amount of maintenance due to her on Iddat from the husband, she replied in the affirmative, Then they asked the husband if he had sold the same as stated by the woman. On affirmation by both sides, the khula was declare as having taken place and the man had become free from all liabilities.
If after the occurrence of Khula the gathered and asked the couple to repeat the same words as they has spoken earlier, Now the husband does not fully agree with the translation, stating that he though some material business deal was taking place. Even then the verdict shall be as Talaq from the husband.
PROBLEM:- The husband asked his wife if she had purchased three talaq from him in exchange of her meher. The woman simply said that she had purchased with the insufficient statements talaq will not take place unless the man said after this that he had sold.
Now if the husband had said in the first instance that the woman purchased three talaqs from him in exchange of the Meher and the woman confirmed this, then the Talaq can be said to have taken place even afterwards the husband did not speak the word of `sale'.
PROBLEM:- Talaq was given in exchange of some amount and the woman confirmed this. Now the amount will be due and Talaq Baain will occur.
PROBLEM:- The husband and wife are both walking together and while talking the khula was agreed between. If the words spoken between them, conjunctive (without break in the conversation) then the khula is in order (valid) otherwise neither Khula nor Talaq will take place.
ZIHAAR: The word of `Zihaar' stands for a similitude or likeness or similarity of his wife or any part of her body to the body or part of the body of other woman who or whose sight (looking at) is forbidden or haram for ever, For example he says to his wife, `You are like mother' or `your head, neck' or `your half is like the back of my mother'.
PROBLEM:- The woman to whom similitude has been alluded if her being haram is of a temporary nature not permanently forbidden, then his declaration of likeness (Zihaar) will not take place for example the sister of his wife or the woman who has been Three Talaqs or a woman belonging to the community of the Magi (majoosi / fore worshiper) idolaters christian etc who is already attached to a community of believing in Gospels/scriptures or may convert to Islam and as such, they are permanently haram.
PROBLEM:- IF the man says to a stranger woman, `If you be my wife or you are like so and so' then this will amount to Zihaar.
PROBLEM:- IF the woman utters words of `Zihaar' to her husband, this will not amount to Zihaar.
PROBLEM:- To express similitude or likeness in respect of woman who are permanently haram referring to their parts of body which by themselves excite passion such as back, belly or thigh or if he says to his wife, `I have done Zihar with you', all these are expressly words of Zihaar whatever the intentions of the speaks, even by way it is Zihaar pure and simple, no explanation or interpretation the man may give.
PROBLEM:- To call wife, mother, daughter or sister is not Zihaar, but it is detestable (makrooh).
PROBLEM:- `Zihaar' by Taleeq (conditional assouation) is also possible, For example if he says to his wife, `If you go to the house of so and so woman, you would be like her', then it will be Zihaar.
The imperatives (tenets) in connection with Zihaar are that before the fulfillment of Kaffarah (compensatory obligations), he cannot have sexual relation with his wife nor can he kiss his wife with lust, touch her or look at her parts of shame. These are all haram. There is no harm if he kisses or touches his wife without passion or lust, (but this should be avoided as it might leed to excited passion etc). To Kiss the lips even without passion is not permissible. If he commits sexual intercourse before payment of kaffarah, he should offer sincere repentance (taubah), however there is no additional Kaffarah for this lapse.
THE KAFFARAH (ATONEMENT) OF ZIHAAR.
If the man doing Zihaar has the intention of resuming sexual union with the wife (now under Zihaar) then he must fulfill the commands relating to Zihaar. However if he is not inclined to have no sexual behaviour and would like the woman to be haram on him, he will not be obliged to do the Kaffarah. If he had the sexual intentions with her, but before fulfillment of Kaffarah the woman dies, now no Kaffarah remains due on him.
The kaffarah of Zihaar consists unfreeing the slave girl / man. If he is unable to do this, then he must keep fast, for two consecutive months before he has sexual intercourse with her. IF he is unable to keep fast for two months, the alternative is that he feeds sixty indigent people.
PROBLEM:- As for the fasts in this behalf it is to be kept in view that they do not fall in the period in which the month of Ramzan the two days of Eids and One Days of Tashreeq (9th to 13th Zilhaj) occur. However if he is to undertake journey, then with intention of Kaffara he can keep fast in Ramzan, but in the Forbidden Days (see above), even the traveler cannot keep fast.
PROBLEM:- If he breaks the continuity of Kaffarah fast of having sexual intercourse with the woman with whom he has done zihaar, or he breaks the fast by mistake or willfully, he must keep the two months fast from the beginning] to abide by the primary condition in this behalf that the fasts must be kept at a stretch for two months. Therefore the fasts kept before breaking the continuity will go unaccounted.
PROBLEM:- If he is unable to keep fast because of sickness and there is fear that he will not recover fully to undertake fast or because of old age, then must feed sixty indigent people with square meal for two days or twice a day, under the condition that he is not likely to recover during the required days of fasting, (The feeding of the poor people will be undertaken when the question of health is in question), otherwise the feeding will be counted as Sadaqah Nafil and fasts will have to be kept a fresh. It must also be kept in mind that the feeding should be given to the same group either two consecutive days or twice a day. If the people are changed then this mode of Kaffarah will not be valid.
PROBLEM:- IT is also the condition that among the people so fed none is underage (na baligh) unless the same person is made holder of an adult's quantum of average food.
PROBLEM:- If is also permissible that each person be given the grain (wheat or maize) equal to half of the saa, in the same way as Sadaqah Eid ul Fitr is given to the deserving people. It is also permissible that food to these sixty people be served in the noon meal and the cash value of the food for evening meal. Or give them food for two days in the noon or two days in the evening, or he feeds thirty people with food and given the price of food to the remaining thirty. Whatever the method may be added the number of sixty indigent people must be completed.
PROBLEM:- The Kaffarah can also be fulfilled if the same poor man be given for sixty days or given daily the amount of money paid as Sadaqah-e-Fitr.
PROBLEM:- In Zihaar it is essential that before resuming sexual contact with the woman the feeding of the indigent be completed. If however before feeding sixty people he has sexual intercourse, thought this is haram and should have been avoided, but to whatever number of people he has given food will not go waste. He should feed the remaining people to fulfill the kaffarah of zihaar. It is not necessary to feed the sixty persons again.
PROBLEM:- If the man against whom Kaffarah was due, dies and his heirs feed the people, it will be valid, but if the slave he feed, it will not fulfill their condition.
If the husband charges his wife of adultery then to settle the issue the process known as Liaan will be undertaken, when the woman concerned is wise, adult, Free (not slave), believer and chaste.
The procedure of LIAAN is as under:
The proceedings shall take place before the Qazi
(1) First the husband will make the statement on oath that his allegation of adultery against of his wife is correct and I am truthful in my allegation. He will repeat his statement four times.
(2) On the fifth he will declare, "Allah's curse be on me if I am making a false allegation of adultery against my wife". On all occasions when he speaks about his wife (as "this woman") he must expressly point towards his wife.
(3) Then the woman will give evidence, saying, `I give evidence on an oath in the Name of Allah that the allegation of adultery leveled against me by this man (pointing at her husband) is false and he is a liar, she will repeat her statement four times.
(4) On the fifth time she will declare, "Curse of Allah be on me if what he alleged against is true".
In the process of Liaan the word `I give evidence' (Shahadat) is essential. Any substitute phrases such as I swear by Allah that I am right (truthful), will not do the needful, and the Liaan will not be as established.
PROBLEM:- There are certain condition in connection with the `Liaan' (1) Nikah is correct and in according to prescribed pre-requisite. (2)The relationship between them is established as husband and wife whether sexual intercourse has taken place or
*not. (3) both should be free (4) both should possess normal sensibility (5) both should be adult (6) both should be Musalman (7)both are capable of clear speech (i.e. not dumb) (8) on none of both should there be an allegation/accusation of in the past (9) The man has not produced witness on his statement (allegation) (10) the woman refuse the allegation of adultery and declares herself as chaste (11) The false accusation clearly pertain to adultery or he does not own the born to his wife as his (12) The accusation has taken place in Darul Islam (Muslim country) (13) The woman should demand this from the Qazi (14) The husband confesses of having accused his wife of adultery. It is not necessary that the woman should stand before the Qazi.
PROBLEM:- Even if the accusation of adultery has been leveled against the woman more than once, the proceeding for Liaan shall be instituted only once.
*: It means that if after giving Talaq Baain the accusation has been brought forth, no Liaan can take place, even if he has remarried the woman after giving her Talaq.
PROBLEM:- There is no time limit for the execution of Liaan, which mean that if the woman does not lodge a complaint, the process of Liaan shall not be dropped, the woman can claim redress of her grievance at any time, Liaan is not forgivable. For example, if the husband has charged her of adultery and the woman for gives him. But if at some later date she approaches the Qazi (court) for enquiry about the accusation, the Qazi will have to order the probe. However if the woman does not demand enquiry, the Qazi cannot initiate action on his own. Similarly, if the woman has accepted some money and forgiven the husband, she can still demand fresh enquiry by returning the amount, she has received. But it is advisable for the woman not to publicize the affair as it is likely that it may injure her reputation, The Qazi too should cover up the accusation and not make it public.
PROBLEM:- When man addresses his wife `O adulteress' or `You have committed adultery' or `I have seen you committing adultery' all these words indicate clear accusation and come within the purview of `Liaan'. But if he says that she has committed haram deed or she has been subjected to sexual intercourse in a haram or forbidden manner or someone has committed sodomy against her. Then this will not amount to Liaan.
PROBLEM:- The institution of enquiry against Liaan mean that after its completion, the woman becomes haram for the man to commit sexual intercourse, but she remains in the nikah of the man till the concerned authority annuls the marriage bond and orders separation of the two. Now the woman becomes as given Talaq-e-Baain. Therefore if after Liaan the Qazi does not cause separation, he can divorce her as well as do the Eelaa and the Zihaar and if any one dies the other will inherit the deceased's property / belonging. If after Liaan they do not agree on separation the parting will have to take place.
PROBLEM:- IF still they don't separate, they can not commit sexual act of any nature, it becomes haram. And when separation takes place, she will be entitled to the maintenance of Iddat and the house to live in further, if she gives birth to a child during her Iddat, the child will be attributed to her husband.
PROBLEM:- IF the husband accuses his wife calling her `O adulteress! Three Talaqs on you'. This will not amount to Liaan but false accusation against chastity (Hadd-e-Qazaf), or he says `O adulteress, three talaqs on you', then this neither Liaan nor Qazaf.
PROBLEM:- If the man says to his wife, `I did not fine virgin', this too is neither Qaza nor Liaan.
The man suffering from impotency is known as In'neen and by this is meant is the person whose male organ (penis) is there but it can not to penetrate the front part of the woman or he can have sexual intercourse with some woman and not with other , or he can do sexual act with a non-virgin (having undergone sexual experience) and not with a virgin. Then in respect of those women with whom he is sexual incapable, he will be treated as impotent, and not so with other. There may be different reasons for this impotency.
1. The defect maybe natural or inborn.
2. Due to some disease.
3. Old age or senility
4. As a result of magic or sorcery done on him.
PROBLEM:- If he can penetrate only the head of the his penis, (hashfa) then he will not be called impotent and if the head is cut and the can insert the penis at least equal to size of the hashfa (head of the male organ) even then he will not deemed impotent. If the woman cuts the male organ of her husband, the no order will be issued in respect of the `penis imputed husband.'
PROBLEM:- If the male organ and the testis or only the organ has been cut from the root or it is too small for a satisfactory sexual intercourse and the woman wants separation, then the separation shall be effected provided is independent (not slave), adult and she had no knowledge of her husband defect, nor she had agreed to overlook this at the time of Nikah. If the woman is slave, then she has no will of her own, but her master has this authority. If she is underage (minor) then she will have to wait till puberty. Then an reacting that stage if she is willing to live with him, well and good, otherwise separation shall be arranged. IF the organ is cut at the roots, then it will not asked whether his adult or adult.
PROBLEM:- The immature (underage) girl was given in marriage by her father. If the girl finds her husband as penis imputed, then her father has no right to demand separation till the girl herself attains puberty (and makes her own case).
PROBLEM:- If after a sexual intercourse the man organ is cut or he becomes impotent, then separation cannot be claimed nor given.
IN THE EVENT OF IMPOTENCY.
The sahrait juris prudential position in this behalf is that when the woman approaches the Qazi (to seek separation), the Qazi at first will ask the husband, if he confesses, the Qazi will give him one year's time for improvement of his capability. If within one year the husband is able to have intercourse, then the demand / claim of the woman will be void. However if the man did not have intercourse and the woman wants separation, the Qazi will ask the man to divorce her, if he divorces, well and good, otherwise the Qazi will order and enforce separation.
PROBLEM:- The woman approaches the Qazi with the complaint that her husband is impotent, while the man says that he has sexual intercourse with her and she is not a virgin. The Qazi will ask the man to state the truth on oath. If he takes oath, then the claim of the woman will collapse. If the woman still insists that she is a virgin, then she will be examined by a woman, (it will be better, if two women examine her), if the woman is found non virgin (having undergone sexual intercourse) then the man statement should be accepted after getting on oath from the man. If the woman declares her virgin then the woman claim will be accepted as true without any oath from her. In case of difference between the women, some other reliable evidence will be obtained to decide the matter.
PROBLEM:- After the lapse of (one years) time the woman claims that the man did not have intercourse with her while the woman insists that she is still virgin, in that event the method referred to above shall be applied. Normally if the man says on oath to have intercourse with his wife, this should be accepted.
PROBLEM:- Separation on the order of Qazi will be treated as Talaq-e-Baain. If the marriage has been consummated then the woman will get full meher and she will sit in Iddat, otherwise she will get half the meher without sitting in Iddat.
PROBLEM:- If the man suffers from other disease(s) other than sexual disability, such as lunacy, leprosy etc or if the private parts of the woman is closed, then the cancellation of the marriage cannot be entertained.
PROBLEM:- The husband commits sexual intercourse with his wife, but for some reasons he has no or sperm to effect emission (Inzal) The woman in such a condition has no right to demand anything (on this account, separation/compensation etc).
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Sunday, August 7, 2016
Exception, exclusion, distinction (Istisnaa’)
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