Fatwa ID: 04159
Answered by: Alimah Sumeyye Sofu
I have 2 questions regarding this topic.
1) Please provide evidence that the Hanafi Fuqaha use to justify the Hanafi position of hurmatul musaharah?
2) If, hurmatul musaharah takes place by accident, for example, the father touched his daughter in law with lust thinking it his wife, is the nikah terminated and the other applicable family members because of haram for him?Jazak'Allah.
بسم الله الرحمن الرحيم
In the name of Allah, the Most Gracious, the Most Merciful.
(1)The evidence of Hanafi scholars is:
Do not marry those women whom your fathers had married except what has passed. It is indeed shameful and detestable, and it is an evil practice. (1)
According to Ahnaf, the above ayah indicates hurmatul musahara because the word "marrying“ means "having intercourse" and intercourse can be in a halal way like in nikah or can be in a haram way like in Zina / adultery. (2)
Then they have the opinion that "touching“ and "looking" are means that lead to intercourse, so they are regarded as having the same effect, as a precaution. (3)
Also, Rasulullah (Sallallahu alaihi wasallam) has said: „if a male touches a female with lust/desire her mother and daughter will become unlawful on him.“ (4)
Ibne Umar (R.a) narrates: “if a male has intercourse with a female, kisses/touches her with lust or looks at her private part with lust, the female becomes unlawful on the Male’s father and son, and the females' daughter and mother become unlawful on the male.“(5)
2) Whether touching is done intentionally or by accident with lust hurmatul musahara will take place. (6)
Moulana Ashraf Ali Thanvi (R.a) says: If a man touches his mother-in-law or his wife's daughter (from his wife’s previous or current marriage) with lust, thinking that it is his wife, then realizes his mistake and immediately takes his hands off, his wife will still become unlawful for him.
The wife becoming unlawful here is not as a form of punishment, but is due to the natural implication of consequences of the act, A perfect example of this is: If a person takes fatal poison without the intention of harming himself, he will still be harmed or even killed because it is the nature of the poison to kill.
Sometimes men out their hands (with lust/desire) on their son's wife (daughter-in-law) by mistake or through mischief. In either case, the daughter-in-law will become unlawful on her husband. (She will become unlawful for his son). (7)
If a man goes to wake his wife up in the night and mistakes his wife's daughter (from his wife's previous or present marriage) or his mother-in-law, to be his wife, he touches either of them with lust and desire, his wife will become unlawful on him. Here is no way for them to become unlawful on one another and it is compulsory for the husband to divorce his wife. (8)
Only Allah knows best.
Written by Alimah Sumeyye Sofu
Checked and approved by Mufti Mohammed Tosir Miah
Darul Ifta Birmingham
(1) Sura Nisa 22
(2) Al Bahr ur Raiq 3/166 Darul kitub ilmiyyah
(3) Al Hidaya 3/14 Maktabatul Busra
(4) Kanz ud Daqaaiq 1/340 (found in Hashiya)Maktabatul Busra
(5) Fathul Qadeer 3/131
(6) Fatawa alHindiyyah 1/303 Darus kutub ilmiyyah
(7) The Masala of Hurmat e Musaharah by Shaykh Mufti Muhammad Farooq. P. 11,12 Allah Bukhsh Barkhudaria Trust
(8) Behisti Zewar, part 4 page 52 Maktabatul ma'arif