Incest and Hurmat Musaaharah
In the name of Allah, the most Beneficent, the most Merciful.
Illicit sexual relationship is a major sin. The books of Ahadith are full of the severe punishment that will be given to those who commit these acts. However, this sin greatly intensifies when those acts are committed with one’s mother, sister or daughter, because it is severing the ties of kinship and an act of aggression against those with whom we are enjoined to uphold ties of kinship.
According to the majority of the scholars, if a person commits adultery with ones own daughter who is a sane, mature Muslim and is married to a spouse who is also a sane, mature Muslim and that marriage is consummated, then the legal punishment is that he will be stoned to death. (Raddul Muhtar p.13 v.6)
Saaiduna Ibn Abbas Radiallahu Anhu narrates that the Prophet of Allah Sallallahu Alahi Wasalam said ‘Whoever has intercourse with a Mahram relative, kill him’. (Sunan Abi Dawud)
In another hadith, Saaiduna IbnAbbas Radiallahu Anhu narrates that the messenger of Allah Sallallahu Alahi Wasalam said ‘Kill the one who commits the action of the people of Lut, and the one to whom it is done and the animal and the one who has sex with that animal, and whoever has sex with a Mahram, kill him.’ (Musnad Ahmad)
However, it should be borne in mind that this punishment can only be carried out in an Islamic state and not in countries, which do not come under the jurisdiction of an Islamic state. (Fatawa Darul Uloom Deobond p.178 v.11)
With regards to the second part of the question, indeed the act committed by the individual will render his marriage permanently unlawful with his wife. This is because of the law of Hurmat-ul-Musaaharah.
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)|
In regards to the second situation we can deduce from the aforementioned points that when an individual engaged himself in an unlawful relationship with his daughter the wife will become haraam upon him (Ibid). There is no way of reconciling, neither by re-performing the marriage nor by any other means. (Fatawa Rahimiyah p.255 v.5)
With respect to your third question, as the marriage between the husband and the wife is permanently unlawful therefore the children will be considered illegitimate hence paternity will not be established with the husband. (Aapke Masaail p.169 v.5)
Only Allah Knows Best
Mohammed Tosir Miah
Darul Ifta Birmingham.