Assalam-o-Alaykum,

My fiancee lives in France and she is facing a serious crisis. Her father was a Christian before, he fell in love with her mother and offered her a

proposal, her mother is a Muslim by birth, she is from Algeria. He reverted to Islam by saying Kalima Shahadah and became a Muslim but the

purpose was only to marry as the family of her mother had asked him that they would only give their daughter to him if he accepted Islam. They got married but her father never practiced Islam properly but rather used to make fun of it, he only used to do Ramadhan and then he

started to pray but then he again left praying, he used to drink Alcohol, in short he did not leave his previous ways when he was a non-muslim and

practiced all kind of bad deeds. My fiancée, his daughter became a good Muslim as she got true guidance from Allah Allhamdullilah, she started

to take Hijab and left the school because of Hijab problems. This made the father angry and he lost his temper, he started to make her life

miserable, my fiancee's sister also followed her in taking hijab and they both were treated badly by the father. Their mother is under too much

pressure and the father caused them huge difficulties. My fiancee went to an Imam in France and told him the whole situation she also informed

that her father tries to take away her and her sisters chastity, he would sometimes install camera in the toilet to record their movements and he

once tried to touch her sister with lust and had bad intentions with her. He did not let them pray. He has agreed to our marriage and my fiancee

was happy that she will start a new life with me and she could practice religion safely and freely and that she will be away from her father's torture and ill intentions.

But just 7 days ago he lost his mind and disagreed to the marriage, he told the reason was that my fiancee stopped going to school and took

Hijab and did not do as he wills, he took away all her belongings and made her to sit on a chair and did not even let her offer Salah, then after a

few hours he returned and started to hit her sister and tried to choke her to death and when my fiancee tried to stop him from doing so he threw

them both out from the house, my fiancee and her sister ran away from home and now they are living in a hostel, a Muslim women is helping

them to get an apartment and monthly allowance so that they could live free from the torture of their father and practice their religion without any

restrictions, then she plans to marry me and start a new beginning. Her sister will also live with us, we are looking forward to give her a separate

portion in our house where we live Insha'Allah in the near future. But the problem is that her mother keep telling her that she should return back

home and stay with her father and do what he wills and says as her mother is under pressure. I told my fiancee that her father's Nikah with her

mother is broken from he touched his daughter with lust thus his Nikah with his wife is fasq. But her mother does not agree to this, they turned to

an Imam of a local masjid and he said that she should go back to her father and bear all what he does as she should be patient where as I

believe that if her father has bad intentions with her and her sister and he is trying to prevent her from following Islam then she should be free

from him and if she has an opportunity to start a new beginning and practice Islam freely then she should avail it. Please give answer what she

should do or what she is doing is correct in the light of Shariah.

In the name of Allah, the most Beneficent, the most Merciful.

Answer

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 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.

• 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 erection occurs in a male when physical contact is made or if erection increases when erection had already occurred prior to physical contact.
• 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. 
• 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)

However, the problem here is determining the lust. It is going to be difficult to determine whether the father had an erection or feeling of lust at the time of touching his daughter. Therefore, we should be cautious in declaring the marriage between the father and mother to have broken.

With regards to the second issue, we can clearly derive that the father is an abusive, violent and cruel person. If the two daughters were to continue living with him, they would not be able to practice their religion. Furthermore, their honour will be at risk. Therefore, they should continue living at the hostel and not go back to the father’s house.

Remember that one is only required to listen and obey his parents in “mubah” (permissible) things and not in sin. If the father is telling the daughters to take off the Hijab, they should not obey him. (Darus Tirmizi p.21 v.2). Furthermore, the Prophet of Allah Sallallahu Alahi Wasalam has said, there is no obedience to a created being if it involves disobedience of the Creator” (Musnad Ahmad)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham.