Fatwa ID: 01346
Answered by Mufti Mohammed Tosir Miah
Question:
Touching & kissing one's own daughter (baby girl of 4months only) by his father with pleasure breaks marriage with his wife? There was no intention of whole sexual intercourse, but when touched the father felt like touching one's wife and when kissed father felt like kissing one's wife, and the pleasure was seen in mouth and body. Please let me know status of marriage with his wife?
Answer:
In the name of Allah, the most Beneficent, the most Merciful.
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:
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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 that nine years of age and boy should not be less than twelve years).
Intercourse in the state of menstruation or post natal bleeding will have the same outcome of Hurmat Musaaharah.
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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.
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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
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If erection occurs in a male when physical contact is made or if erection increases when erection had already occurred prior to physical contact.
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If erection does not occur in a male due to health reasons or old age, then if lust occurs in the males heart at the time of physical contact.
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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.
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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)
It should be borne in mind that Hurmat Musaharah is only established if the girl is mature. The jurists have said when the girl is nine years old or more then it will be established. (Raddul Muhtar p.110 v.4)
With regards to your question, the ruling will be that the husband’s marriage with his wife will not break (even though there may have been lust) because his daughter is less than the age of nine and as I mentioned above it is a condition for the girl to be mature for Hurmat Musaharah to occur.
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham.
