النص المفهرس

FATĀWĀ DĀR AL-‘ULŪM
ZAKARĪYYĀ
VOLUME FOUR
Hadrat Maulānā Muftī Rada' al-Haq
Sāhib

TABLE OF CONTENTS
INTRODUCTION 17
KITĀB AT-TALĀQ 20
INSTANCES WHEN DIVORCE TAKES PLACE/DOES NOT TAKE PLACE
20
Divorce on a false admission and presentation of a witness 20
Issuing a divorce with the intention of divorce 21
Intending to issue a divorce in the future 22
Issuing a divorce in the present tense 23
Issuing a divorce when the wife is pregnant 24
Issuing a divorce without directing it to one's wife 25
A person says: "Understand that it is a divorce." 27
Issuing a divorce in a play or drama 27
A person utters the word "taq" 28
Divorce issued by a dumb person 29
Issuing a divorce over the telephone 31
Issuing a divorce via sms 32
Issuing a divorce with the words "Insha Allah" 34
Issuing a divorce while saying the words "Insha Allah" silently 34
The validity of divorce when the mouth of the husband is shut
closed 36
Issuing a divorce on the instruction of one's parents 37
When the husband does not see to his wife's needs 40
Preventing a baseless and non-Shar'ī divorce 41
ISSUING A DIVORCE IN UNAMBIGUOUS WORDS 44
Issuing three divorces with the intention of emphasis 44
Resorting to unambiguous words with the intention of emphasis
45
Divorce issued by an oblivious person 46
1

Issuing a divorce jokingly with unambiguous words 48
Issuing a divorce and claiming that a divorce from the first
husband was intended 49
50 أنت طالق واحدة في ثنتين :A person says
A person says: "You are divorced" three times out of fear 51
When there is a doubt in the number of divorces 52
One two three divorces to you 53
A person says: "You are divorced on three conditions" 54
THREE DIVORCES 55
Issuing three divorces in a single assembly 55
When a person says: "Talaq, talaq, talaq" 86
Issuing two divorces but claiming to have issued three 87
I gave you one, now I am giving you two 88
When the husband says: "You have received it" 89
A woman asks for divorce and her husband replies: "I talaq you"
three times 90
Annulling a marriage after two divorces 91
Three divorces in a state of anger 93
Issuing one hundred divorces in a state of anger 94
Issuing three divorces during a wife's menses 96
When a person denies issuing three divorces 97
When there is a conflict in the ruling of a mufti and a judge 100
102 المرأة كالقاضي Meaning of the term
A woman who was issued three divorces becomes an apostate 105
Removing the precondition of sexual intercourse in halalah 106
AMBIGUOUS DIVORCE 108
The husband says: "I have no relationship with you." 108
"You are harām to me." 109
"I have left you." 111
2

" ... am divorcing my wife ... This is the final word." 112
"You are not my wife. Get out of the house." 113
When a talaq-e-ba'in is followed by another 114
"It's all over." 116
"Our Islamic marriage is over." 117
"You are permitted to marry elsewhere." 119
"Go away from my house." 120
"Get out; go to your mother's house." 121
"Neither am I your husband nor are you my wife" 122
The meaning of "a discussion on divorce" 123
"Pack your things and go to your father's house. I don't want you
anymore, get out!" 124
"I have retired you" 125
"Go! You are free. I am freeing you." 126
"You go away" - said with the intention of three divorces 128
"Take your kitchen and go." 128
"The bond of marriage is broken." 130
"I have removed you from my marriage." 131
"The marriage is no longer intact." 132
"Leave the house." 133
"By Allah I will never keep that woman." 134
"You are not my wife." 136
Referring to one's son as "the child of a divorcee" 136
Addressing one's wife as a "divorcee" 137
"You are equal to my sister." 138
"You must tell everyone that I divorced you." 139
"Go to your mother's house until your mind comes right." 140
"If you go to your parents' house, then the third one." 141
WRITTEN DIVORCE 143
Issuing a written divorce in the presence of the wife 143
3

An issue related to a written divorce 152
Writing a divorce in an unconventional manner 155
A divorce written under compulsion 156
When an intoxicated person is asked to sign a divorce document
158
When a written divorce is not accompanied by the spoken word
158
A person writes a divorce document on the instruction of a
Maulānā 160
A divorce document is followed by another letter as confirmation
161
When husband and wife sign a single document 162
A conditional written divorce 162
When the husband denies having written a divorce note 165
TAFWĪD, TAWKĪL AND TA'LĪQ OF DIVORCE 166
One type of tafwīd 166
The difference between tafwid and tawkil in divorce 167
Retracting from a tafwīd-e-talaq 169
Restricting the tafwid to the assembly 170
The husband has the first right to divorce, the wife has the
second, and the husband has the third 171
If you enter your mother' house, you are divorced three times 174
If I go to Lenasia, three divorces will apply to me 175
If you go to that house, you must not come back 176
When the wind blows, you are divorced 177
If you are not giving a reason, you can separate yourself with one
divorce 178
When husband and wife differ on the condition and its fulfilment
179
If I marry without my wife's permission, she is divorced 180
A type of conditional divorce 181
4

If you phone me again you must conclude that you are divorced
182
If I listen to his lecture, my wife is divorced 183
Whenever I marry, my wife is divorced 184
Referring to a Shafi'ī judge for a conditional divorce 185
DIVORCE ISSUED BY AN INTOXICATED, LUNATIC OR COMPELLED
PERSON 192
Issuing a divorce while in a state of intoxication 192
When a person becomes angry and loses his mind 194
The divorce of a person who is under the influence of magic and
an evil spirit 195
When a divorce is issued under compulsion 197
A second opinion with regard to divorce under compulsion 198
A threat made by a policeman 199
ZIHĀR 200
The meaning of zihar in the Shari'ah 200
The intention of honour and respect in zihar 206
You are my mother 207
If I keep you, I'll be keeping my mother and sister 210
‘ĪLĀ' 212
A person takes an oath not to engage in conjugal relations 212
Taking an oath of four rak'ats of salah 213
Retracting from an 'īla' 216
KHULA' 218
Khula' without the husband's approval 218
Resorting to khula' because of the husband's oppression 219
FASKH AND SEPARATION 221
Separation on account of husband not paying maintenance 221
Separation because of a prolonged imprisonment of the husband
223
5

Annulment of marriage when the husband is classified a lunatic
227
When the husband is diagnosed with Aids 228
Reconciling contagious diseases with Ahadith 232
Annulment on account of mutual discord 233
Annulment because of the husband humiliating and beating his
wife 240
When a Shi'ah husband leaves his wife 244
When a husband does not inquire about his wife for a long period
of time 244
A husband who is perpetually ill 246
When the husband is lost in battle 247
When the husband is absent most of the time 249
When a husband has an extra-marital affair 250
When a Maulana effects a separation 252
When a woman becomes an apostate 253
Separation on the verdict of a non-Muslim judge 255
Annulment in non-Muslim courts 256
Another form of divorce 259
THE PRINCIPLES OF ANNULMENT AND SEPARATION 262
The meaning of annulment and separation, and the woman's
right to end a marriage 262
'IDDAH 268
The meaning of 'iddah in the Shari'ah 268
'Iddah because of privacy with an immature husband 271
'Iddah because of privacy with an impotent husband 271
Spending one night with a menstruating woman and then
divorcing her 272
When the woman is unable to have intercourse 273
When the husband becomes an apostate 274
The obligation of 'iddah because of mistaken sexual intercourse
275
6

The obligation of 'iddah on a minor girl 275
Mistaken intercourse with a woman who is observing 'iddah 276
The issue of 'iddah when a woman is divorced before she goes
over to her husband 278
'Iddah for a minor girl who is not old enough for intercourse 279
'Iddah for a non-Muslim woman 280
'Iddah for a new Muslim 281
The method of observing 'iddah in a Sunnah divorce 282
Calculating the 'iddah by months 283
'Iddah for a woman in perpetual purity 287
'Iddah when the husband passes away before the wife can go over
to her husband 290
When information of the husband's death is received after the
period of 'iddah 291
'Iddah of death during 'iddah of divorce 292
'Iddah for a woman whose child dies in her womb 293
'Iddah when the pregnancy becomes dry 294
'Iddah when a woman has an abortion 295
'Iddah when divorce is issued two years after separation 296
The wisdom behind the obligation of 'iddah 297
MOURNING 299
Washing one's hair, taking a bath and applying oil while in 'iddah
299
Permissible actions during 'iddah 300
Impermissible actions during 'iddah 301
Leaving one's house on the death of one's parents during 'iddah
304
An old woman observing 'iddah in her son's house 307
Husband and wife living in the same house 308
Living together after three divorces 309
Marriage during the 'iddah 310
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LEGITIMACY OF LINEAGE 312
Legitimacy of lineage after marrying an adulteress 312
When a person marries a Hindu woman 313
A few principles related to legitimacy of lineage 314
Legitimacy of a child which is born after a lengthy separation 316
Lineage of children whose mother is gone missing 317
The lineage of test-tube babies 318
Lineage of a child when the sperm is obtained from a stranger 323
When the sperm and ovum of husband and wife are placed in the
womb of a strange woman 324
CUSTODIANSHIP 327
The mother has the most right over custody 327
The son will live with his father after he turns seven 329
Denying the father the opportunity to meet his child daily 331
The right of custody after seven years 333
The maternal grandmother has more right of custody than the
paternal aunt 334
In the presence of the maternal grandmother, paternal
grandparents do not have the right of custody 335
When the period of custody expires 336
When children are in the mother's custody and she intends
remarrying 337
Phoning one's son and taking him during the holidays 339
MAINTENANCE 340
When a woman issued with an irrevocable divorce spends her
'iddah at her parents' home 340
Details related to maintenance 341
Maintenance of a six-year old child 344
Maintenance of a divorced, pregnant and recalcitrant woman 345
Medical expenses 347
The father paying for the maintenance of a six-year old child 350
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When there is no possibility of the father being allowed to meet
his child 351
When a mature girl insists on living with her mother 353
After a son gets married 354
Fulfilling all the needs of one's wife 355
Household goods 357
Utilizing the wealth of a person who goes missing 359
Maintenance of an old and needy father 360
Sisters paying for the maintenance of their needy brother 362
Maintenance in the presence of a father and children 364
Maintenance of mature children 365
Maintenance of non-Muslim parents 366
Parents accepting maintenance from an apostate son 367
BREASTFEEDING 369
Five breastfeeds 369
Foster relationship is established with one's maternal cousin if
one drinks the milk of one's maternal grandmother 376
When one breastfeeds a child before marriage 376
Marrying the sister of one's foster son 377
When a child is 27 months old 378
Marrying the divorced wife of one's foster son 381
When a husband suckles his wife's milk 382
When a barren woman produces milk 384
When a woman produces milk through medication or an injection
386
When milk is adulterated 387
Foster-hood on account of donating blood 389
When milk is fed in an unnatural way 390
THE RIGHTS OF SPOUSES 392
Details on the rights of spouses 392
The responsibility of domestic chores 397
9

Maternity expenses 400
The husband compelling his wife to live somewhere else 401
The wife going to visit her parents 402
Visiting non-Muslim parents 404
Visiting one's mahārim 405
Husband and wife sleeping separately 406
A woman being naked in front of her husband 412
Husband and wife looking at each other's private parts 414
Conversing while having conjugal relations 416
Oral sex 417
Inserting one's finger in the wife's private part 418
Asking one's wife to play with one's private part 418
Augmenting one's breasts 419
Giving in charity without the husband's consent 421
Maintaining equality between two wives 423
When a husband prohibits his wife from observing hijab 424
Leaving one's wife for one year 425
Using sex toys for sexual gratification 427
A woman having more than one husband in her life-time 427
Husband and wife calling each other by their names 430
OATHS AND VOWS 432
Taking an oath in the name of anyone other than Allah 432
An oath becomes binding when it is taken 436
Taking an oath of giving up an evil action 438
Taking an oath on the Qur'an 440
An immediate oath 441
Taking an oath in which the lawful is made prohibited 442
When a person takes an oath that he is an unbeliever 443
When "wallah, billah" is said as an expletive 444
By Allah, I will not listen to that Maulana's lecture 447
10

If I come to your house, I will be a pig 448
An oath for not setting foot in a house 449
Taking an oath while pointing at a certain thing 450
Taking an oath on the Ka'bah 451
Taking an oath on La Ilaha Illallah 452
Taking an oath to cover the Ka'bah 453
The meaning of "the oath is considered according to the intention
of the one who is asked to take it" 454
Specifying a time when taking an oath 456
VOWS 458
The necessity of a verbal utterance 458
Taking a vow with regard to a specific thing and then acting
against it 459
Taking a vow to slaughter a goat 460
Taking a vow to perform two rak'ats salah daily 462
Taking a vow to read durūd sharif 1 000 times daily 463
Taking an oath to commit a sin 464
Removing a doubt on a vow to commit an intrinsic sin 468
Including the wealthy and the poor in a vow 469
Mentioning the name of Allah in a vow 471
Taking a vow of sending someone for hajj or for forty days 472
A specified but unconditional vow 474
A specified and conditional vow 475
A vow to observe fast perpetually 476
Vowing to give food in charity, but then giving its value 477
A vow for progress in one's business 479
When a vow for children includes an illegitimate child 480
Taking a vow to slaughter an animal, then giving its value in
charity 481
When a person vows to give in charity if he breaks his repentance
483
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A vow for a general charity 483
Taking a vow to construct a madrasah 484
A vow to engage in Allah's remembrance 485
Taking a vow to take lamp oil to the Ka'bah 487
Taking a vow to spend on students 487
ATONEMENT FOR BREAKING AN OATH 489
Fasting as a kaffarah 489
Feeding madrasah students as kaffārah 490
Giving several fidyahs to a single poor person 490
Multiple atonements 492
Paying fidyah for a vowed fast 493
Paying fidyah when one is unable to observe a vowed fast 494
An example of kaffärahs becoming interlinked 496
THE ISLAMIC PENAL CODE AND THE LAW OF RETRIBUTION 498
The evidence for stoning and answers to objections 498
When a person cannot bear the punishment of lashing 524
Establishing the hadd solely on circumstantial evidence 525
The testimony of a dumb person 527
When a woman is hired for her services 527
Adultery with an insane woman 531
When stolen wealth is given to the thief 533
The consumer of wine in today's times 534
When a person is murdered by poisoning 537
Murdering a person through magic 539
Murdering a Muslim in a non-Muslim country 540
When a ruler or government compels one to kill someone 541
When one is convinced that he is going to be killed 542
Blood money in the case of unintentional killing 543
Identity of the 'aqilah in today's times 545
When a person is drowned 547
12

Euthanasia 548
Punishment and retribution on the basis of scientific
investigations 555
Doubts on the prohibition of alcohol 558
The ruling for bestiality 568
FINES AND PENALTIES 570
The status of monetary fines and penalties 570
Punishment by destruction of goods 580
The third form of monetary punishment: Changing the form of an
item 589
Labelling someone a kafir or hypocrite 591
Punishment by social boycott 593
The issue of disciplining 597
When hands and legs are broken in the course of punishing 604
COMPENSATION 606
When a motor car knocks a horse 606
A car accident 607
When an animal is killed unwittingly 609
When cars collide 610
A person drives a car without permission and meets in an
accident 611
When a driver drives over someone and the latter dies 612
Who is liable to pay blood money in today's times? 614
When an animal is trampled to death 615
Compensation when a doctor commits an error 616
When a person causes damage to an animal over which Bismillah
was not read 617
Compensation when an employee is careless 619
Compensation for breaking an item 620
When a bird is released from its cage 621
Compensation for dying clothes incorrectly 622
13

When a cloth is spoilt 622
When a washer-man loses a garment 623
WAQF 625
The definition of waqf and its existence in the time of the
Sahābah 625
Words for the validity of waqf 628
When the last person/generation is not specified 630
Waqf of children and grandchildren 631
Differentiating between male and female 634
Waqf in favour of one's wife 635
Waqf of dinars and dirhams 636
The recipients of waqf dinars and dirhams 637
When an heir rejects a waqf 638
Benefiting from a waqf for as long as one is living 639
Waqf of movable items 641
Demolishing and rebuilding a waqf building 642
Waqf when one is on one's death-bed 643
Renting a waqf property for a long period 644
Selling waqf property 645
Making up for selling a waqf property 648
Constructing a building on waqf land 649
The recipients of waqf income 651
Changing the conditions laid down by the endower 653
Trusteeship of a person who receives a salary 654
Responsibilities of a trustee of waqf property 656
MASĀJID 660
Personal ownership of the masjid and personal law 660
The personal ownership of the Ka'bah 665
Extending a masjid 666
Excluding the lower level from a masjid 667
14

Moving the building of a masjid 669
Old carpets of a masjid 671
When only the construction of a masjid is completed 673
Repairing the masjid driveway with masjid funds 675
Including the surrounding property when extending a masjid 676
Changing a section of a masjid into a pathway or terrace 678
Laying drainage pipes beneath a masjid 679
Planting fruit-bearing trees on masjid property 680
Constructing a masjid which is attached to a madrasah 681
The mihrab of a masjid 682
The location of the mimbar of Rasulullah # 683
The history of minarets 686
Reserving a place in the masjid for the mu'adhdhin 687
ETIQUETTE RELATED TO THE MASJID 689
Offering condolences in a masjid 689
Solemnizing a marriage in a masjid 691
Sleeping in a masjid 694
Bringing children to the masjid 697
Offering salām when entering a masjid 698
Reciting poetry in the masjid 699
Women observing i'tikaf in the masjid 702
Giving a beggar in the masjid 705
When the rows of congregants are not continuous 706
Taking shoes which belong to someone else 707
An issue related to a certain imam 708
The imam turning towards the congregants 711
Loud du'a in the masjid 713
The method of raising the hands in du'a 721
Swaying from side to side when reading the Qur'an or making
dhikr 724
15

Coming to the masjid with clothing which has impurities 729
A non-Muslim worshipping in a masjid 732
Leaving a masjid and performing congregational salah on a field
734
Loud dhikr in the masjid 738
Sitting on a chair in the masjid 746
ISSUES RELATED TO MADĀRIS 749
Spending the money of one account for another 749
Spending the funds of one madrasah in another madrasah 750
When madrasah teachers act against the conditions of
employment 751
Making a house waqf for a madrasah 753
Making a condition after the waqf is completed 754
Constructing a house on waqf property 755
Returning something after it is no longer needed 757
When a madrasah land is used for a different purpose 759
Annual jalsahs in madāris 760
Taking food from the madrasah canteen 761
Ringing a bell in a madrasah 762
TRANSLATOR'S NOTE 766
16

INTRODUCTION
All praise is due to Allah ta'ālā the fourth volume of Fatāwā Dār al-'Ulum
Zakarīyyā is in your hands. We cannot thank Allah ta'ala sufficiently for
having enabled unworthy people like us to do this good work.
May Allah ta'ālā reward the post-graduate students who helped in
obtaining the references. May He make their effort a means for an
increase in their knowledge and practice. Allah willing, this effort will
be the first brick in their academic building.
Muftī Muhammad Ilyās Sahib needs to be thanked for his continuous
and unrelenting efforts which brought this work to fruition, and due
to which readers are benefiting.
Some 'ulamā' drew my attention to a certain ruling in Kitab az-Zakāh.
We had stated in volume three, page 103 that as a precaution, zakah on
nine carat gold should be paid. We had ascertained that other metals
make up a major portion of it, and these cannot be separated easily. In
addition to juridical texts, there is a clear text in Bahishtī Zewar in this
regard. The text of the jurists on this issue reads as follows:
لكن في المحيط والبدائع الدنانير الغالب عليها الذهب كالمحمودية حكمها
حكم الذهب والغالب عليها الفضة كالهروية والمروية إن كانت ثمنا رائجا أو
للتجارة تعتبر قيمتها وإلا يعتبر قدر ما فيها من الذهب والفضة وزنا لأن كل
واحد منها يخلص بالإذابة. (فتاوى الشامي: ٣٠٢١٢، سعيد، وهكذا في البدائع:
٤١١١٢، وكشف الحقائق شرح كنز الدقائق: ١\١٠٦).
قال العيني: يريد به إذا كانت الفضة لا تخلص بالنار وإن كان شيء يخلص
منها لا يكون حكمها حكم العروض بل يجمع ما فيها من الفضة ويضمه
إلى ما عنده من ذهب أو فضة أو مال تجارة ويزكى الكل. (البناية شرح الهداية
للعلامة العيني: ٢\١٢٠٥).
17

This topic is also discussed in Sharh Tuhfah al-Mulūk (1085).
Al-Jauharah an-Nayyirah states:
وإنما تكون نفي حكم العروض إذا كانت بحال لو أحرقت لا يخلص منها
نصاب أما إذا كان يخلص منها نصاب وجب زكاة الخالص. (الجوهرة النيرة:
١\ ١٥٨).
This subject is mentioned in other books of fiqh. However, we have
learnt that gold and non-gold metals cannot be separated from the
nine carat jewellery of today with the heat generated by a normal fire.
Instead, the non-gold metals get burnt. This is why a fire which is
about four times more powerful than the normal fire is required. In
other words, a heat of about 400℃ is needed. Furthermore, mere
melting of the metals is not sufficient. An acidic chemical costing a lot
of money has to be added. The gold in nine carat jewellery is generally
less than the other metals. It also contains silver either in the
proportions of 4%, 10% or 20%.
Bearing the above facts in mind, if the amount of gold and silver
contained in such jewellery is equal to nisab, or less than it but when
added to other gold, silver or cash money; it equals nisab, then caution
lies in the owner paying the zakah. If this jewellery is for trade, then
zakāh will be obligatory on nine carat jewellery because zakāh is
obligatory on trade goods. In this case, all the jewellery is classified as
trade goods.
The following is stated in Imdad al-Fatawā:
There are two scenarios in the case where gold and silver are mixed
with other metals.
(1) Both can be distinguished, they have not been mixed through
melting. One rule will not apply to the total. The rules of gold and
silver will apply to the amounts of gold and silver respectively. The
rules which apply to other metals [besides gold and silver] will apply
to the other metals. For example, bay' as-sarf and zakah, will be
considered only in the amounts of gold and silver, and not on
everything.
(2) They cannot be distinguished. They were melted and mixed
together. In this case, the jurists say that the metal which constitutes
the larger amount will be considered. In other words, if it has more
gold or more silver, then the entire weight will fall under the rules of
gold or silver. If the larger amount is another metal [neither gold nor
18