Leaving a Madhhab Due to Ḥaraj: A Case Study of Ḥurmah Muṣāhara

NOTE TO THE READER:
This article is based on notes and discussions from our class with Mawlana Zeeshan Chaudri. It’s not intended to be a thoroughly researched or evidence-based academic paper. My aim is simply to document what we’ve studied and also share it with other interested readers.

In Islamic jurisprudence, the concept of ḥaraj (undue hardship or difficulty) provides flexibility when following a madhhab becomes excessively difficult in a given issue. This principle allows for the permissibility of leaving one’s default madhhab under certain conditions, particularly in cases where adhering to its rulings would cause significant difficulty or even harm. One of the most complex examples of ḥaraj in this regard is the issue of ḥurmah muṣāhara, which refers to the prohibitions that arise between a man and a woman and their extended families due to intimate relations.

Traditionally, the default rule is that a muftī should give fatwā according to the principles of their own madhhab. This is essential to maintain consistency in legal rulings. However, there are instances when exceptions are made due to necessity or need. It is important to recognise that allowing for these exceptions is grounded in the principles of Islamic law, not as a form of laxity but as a means of preventing harm.

The Three Types of Necessity and Need in the Shari’ah

In understanding when and how one may leave their madhhab due to ḥaraj, it is crucial to differentiate between three key categories of necessity and need in Islamic law:

1. Ḍarūra (الضَرُورَة): Refers to cases of absolute necessity, where life or limb is in danger. An example of ḍarūra is the Quranic allowance for consuming forbidden substances like pork or alcohol when one’s life is at risk. In such cases, a person is permitted to take an otherwise prohibited action to prevent harm, so the question of the permissibility of leaving the madhhab in such cases would not even be appropriate.
2. Ḥāja ʿĀmma (الحَاجَة العَامَّة): This refers to a general communal need that, while not a matter of life and death, affects a significant portion of the Muslim community. One well-known example of this is the issue of car insurance in modern times. While insurance might be forbidden under strict interpretations, due to the ḥāja ʿāmma of driving cars, and the communal issues that may arise if prohibited, many scholars have permitted insurance as a necessity for public safety and legal requirements. This communal need can to some degree be equated with ḍarūra, allowing for leniency in fatwā (الحاجة العامة تنزل منزلة الضرورة).
3. Ḥāja Khāṣṣa (الحَاجَة الخَاصَّة): Refers to a specific or individual need. If a particular person faces a significant hardship due to a ruling in their madhhab, they may be allowed to follow the ruling of another madhhab to ease their difficulty. For instance, a person might follow the Shāfiʿī position on a specific issue that is more lenient than the Ḥanafī position if doing so alleviates personal hardship. However, this allowance must be given to them by a qualified scholar.

The Concept of Sadd al-Dharāʾiʿ and its Limits

One of the ways Islamic law seeks to prevent harm is through the principle of sadd al-dharāʾiʿ (blocking the means to harm). This principle involves prohibiting actions that, while not inherently sinful, could lead to sinful outcomes. For example, although khalwa (seclusion with a non-maḥram person) is not sinful in itself, it is prohibited because of its potential to lead to zinā (fornication). However, scholars caution that sadd al-dharāʾiʿ must be applied with care to avoid causing undue restrictions, which could themselves result in ḥaraj.

A misapplication of sadd al-dharāʾiʿ can be seen when localised fatwās are imposed universally. An example that was given by our ustadh is the prohibition of playing cards in some countries where it was associated with men who would display inappropriate behaviour like missing prayers, wasting time, staring at women who passed by, and inappropriate interactions. While such a fatwā may have made sense in that context, when it is then shared online as general fatwā, its universal application could lead to confusion and unnecessary hardship for people who may want to play cards with in a controlled, innocent manner with family or friends.

Ḥurmah Muṣāhara in the Hanafi Madhhab

The issue of ḥurmah muṣāhara is an example of case where adhering strictly to the Ḥanafī madhhab can cause ḥaraj. Ḥurmah muṣāhara refers to the prohibition that arises between a man and a woman, as well as their direct relations (usūl and furūʿ), due to physical or intimate contact. According to the Ḥanafī madhhab, jimaʿ (sexual intercourse) is not necessary for the prohibition to be established, rather, even actions that merely lead to jimaʿ, such as touching with lust, can establish this prohibition. This even extends to scenarios where there is no intention for intimacy, or a man touches a woman accidentally or under the assumption that it was his wife, as long as the conditions are met.

The Ḥanafī scholars have set two main conditions for the establishment of ḥurmah muṣāhara:

1. The physical contact must be without a barrier or with a very thin barrier.
2. The man must experience an erection at the exact time of touching.

This has caused difficulties for many families, since even accidental acts lead to a serious consequence. For instance, if a man accidentally touches his mother-in-law and feels lust, the Ḥanafī position is that his wife becomes ḥarām for him. In comparison, the Shāfiʿī madhhab offers a more lenient stance, excluding cases where accidental or unintentional acts happen.

A real-life example that highlights the hardship caused by the Ḥanafī ruling on ḥurmah muṣāhara is the infamous case of Imrana in Pakistan. In this case, a woman was raped by her father-in-law, which, according to the Ḥanafī madhhab, made her marriage to her husband invalid. The ruling given by the panchayat and Darul Uloom Deoband generated outrage, as according to the people: “it seemed to punish the victim of a crime by dissolving her marriage”. Eventually, the case was brought to a higher Shariah board and Imrana’s husband continued living with her.

Inconsistencies in the Issue of Ḥurmah Muṣāhara

The question is raised about the strictness of the Ḥanafī ruling in these cases, particularly when compared to other situations where leniency is applied. For instance, in financial matters, Ḥanafī scholars have allowed for following the Shāfiʿī madhhab in cases where someone is owed money but is not being paid back. According to the Ḥanafī verdict, he can forefully or unknowingly only recover the exact type of property that was taken from him. However, according to the Shāfiʿī verdict, he can take anything of value to then sell and recover the money owed to him. This flexibility in financial matters raises the question: Why not apply the same leniency in issues of familial hardship, such as ḥurmah muṣāhara?

Furthermore, there are inconsistencies within the Ḥanafī position itself that complicate the matter further. For example, if a man touches his mother-in-law with lust, his wife becomes ḥarām, yet if he engages in a more serious act like idkhāl fi ‘d-dubur (anal intercourse), this does not establish ḥurmah. This discrepancy may seem contradictory, as one might expect a more severe action to have greater implications. The underlying reason is rooted in how hurmah musāhara is established, where mere physical touch or a kiss with lust can trigger a prohibition, but more severe acts like idkhāl fi ‘d-dubur do not, according to the Ḥanafī stance.

The rationale often provided by the Ḥanafī scholars is that actions like touch (mass) and gaze (nadhar) take the ruling of intercourse (jima’) because they can lead to it (mufdi ila al-jima’). However, this principle reveals inconsistencies when applied to specific scenarios. For instance, if a man were to touch his mother-in-law and experience inzal (ejaculation), this would not establish ḥurmah, as it is no longer considered mufdee ila jima’ since the inzal has already occurred. This seems counterintuitive, as one might expect such an act to carry more serious consequences.

Additionally, based on the principle of “the womb cannot be shared,” idkhāl fi ‘d-dubur does not establish ḥurmah because anal intercourse cannot lead to pregnancy. Since hurmah musāhara hinges on the possibility of a shared womb (through potential pregnancy), acts that do not result in this outcome, such as idkhāl fi ‘d-dubur, do not cause hurmah. This leads to a peculiar situation where a seemingly minor act, like accidentally touching and experiencing arousal, causes hurmah, but a full act of idkhāl fi ‘d-dubur does not.

There is no clear prophetic ḥadīth or Qur’anic verse that directly supports these specific Ḥanafī positions. Given the potential for absurd outcomes and undue difficulty (ḥaraj), there is a strong case for revisiting this stance to align with principles that ensure clarity and justice in rulings.

Conclusion

The case of ḥurmah muṣāhara serves as a serious example of how ḥaraj can necessitate leaving the Ḥanafī madhhab in favour of another, such as the Shāfiʿī. While following one’s madhhab consistently is generally the ideal, there are cases involving undue hardship, where adhering strictly to one’s madhhab may not be practical or in line with the spirit of the Shariah. In such cases, Islamic law provides mechanisms for flexibility, allowing for rulings to be taken from another madhhab when supported by the principles of ḍarūra, ḥāja ʿāmma, or ḥāja khāṣṣa.

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Class date: October 2024, Whitethread London