Fatwa ID: 03193

Answered by: Mufti Mohammed Tosir Miah​

Question:

Assalamu alaikum

my question is regarding Hurmat-e-Musahrah or in other words about performing Nikah.  First of all, I want to provide you with a brief background of my past life. Actually, we have a double story house in Rawalpindi, Pakistan.
 

Me and my family lived in the bottom story and my fiancé and her family lived in the top story. Now, Mufti saheb before my marriage sometimes when my fiancé’s mother used to come down to bottom story i.e. in front of me and other household members regarding household matters. However, it is sad to say that at most times, I felt shehwat (lust) when I looked at her i.e. my penis started to get erected. However, I always used to overcome my this state of lust or any other natural incident occurred in my house which used to direct my attention towards other issues.
 

As a result, I NEVER EVER touched her in such a state and whenever such an incident occurred with me my fiance's mother was in complete Sattar i.e. in full clothing. Later on, my nikah was performed with her daughter according to Hanafi Islamic laws. Now, my question is that by my such an act does any ruling of hurmat-e-musahrah applies?  Also, tell me about the nikah performed with her daughter is correct?

Answer:

In The Name Of Allah, The Most-Merciful, The Most Kind

Hurmat Musaaharat is a law of Shariah that forbids specific men from marrying specific women. This law applies when there has been lawful and unlawful contact between a man and a woman (intentionally or unintentionally) with certain conditions laid down by the Shariah.  These conditions are:

• When lawful intercourse takes place (through marriage) or unlawful intercourse (adultery and fornication) – with the condition that both the boy and the girl are mature or one is close to maturity (the girl should not be less than nine years of age and boy should not be less than twelve years).

Intercourse in the state of menstruation or postnatal bleeding will have the same outcome of Hurmat Musaaharah.

• If there is lust in either the mature or close to mature boy or girl when they make physical contact (touching, kissing etc either through lawful means such as marriage or an unlawful way like adultery or fornication) with no cloth in between or there is a cloth in between but it is so thin that the body heat can be felt through it.

• If a male looks at the inner part of a females’ vulva with lust or a female looks at a males’ private part with lust even though there may not be an erection in the male at the time when the female is not looking (this looking can be either through a lawful means or an unlawful means) and both the male and the female are mature or close to maturity the Hurmat Musaaharah will apply.

Definition of Lust

• If an erection occurs in a male when physical contact is made or if erection increases when erection had already occurred prior to physical contact.
• If an erection does not occur in a male due to health reasons or old age, then if lust occurs in the male's heart at the time of physical contact. 
• If lust occurs in a female’s heart when physical contact is made and it was not present prior to physical contact.  If lust was present prior to physical contact and it increases when physical contact is made.
• It is not necessary that both persons experience lust when physical contact is made.  Lust in either the male or the female will be sufficient for Hurmat Musaaharah.  (Raddul Muhtar p.107-p.114 v.4 & Hurmatul-Musaaharah p.7-p.9)

From the aforementioned discussion we can derive that as you did not touch or see the private parts of your fiancés' mother, Hurmat Musaaharah would not be established. Therefore, your nikah will be valid.

Only Allah Knows Best

Answered by Mufti Mohammed Tosir Miah

Darul Ifta Birmingham