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11th Fiqhi Seminar

Date: 17 -19 April 1999 Venue: Imarat-e-Shariah, Phulwari Sharif, Patna

No wonder, at first, it was decided to hold the eleventh Fiqhi seminar under the aegis of the Islamic Fiqh academy at one of the most prestigious and esteemed religious institutions of india - the dar-ul-uloom, Nadwatul ulma, Lucknow. However, the venue was abruptly shifted to another place at the eleventh hour because of the sudden news of the severe illhealth of it’s Rector, hazrat moulana syed Abul Hasan Ali Nadwi. Such a sudden and unprecedented change in the last moments could have thrown the entire itenerary out of gear but for the grace of Almightly Allah who inspired the modest and humble workers and members of Imarat-e-shariah (Bihar&Orissa) to work industriously day in and day out in a blitzdrieg fashion to put things back into the proper channel despite tremendous odds. Thereafter, the 3-day long seminar was succesfully held under it’s own shimmering brilliance in the newly constructed ‘Al-Mahad’ hall of the Imara-e- shariah.

Taking precedence over all these facts, the most impressive aspect was that none of the distonguished paticipants in the symposium seemed to be deterred by the hardship of nature or the change in the seminar venue, by the grace of god All the more, the programme earned a glorous distinction with respect to the representation from various quarters. The objectives behind conducting this seminarand the procedings were further glorified by the presence of foreign delegates like Mr. Maulana Mohd. Taqui Usmani and Dr. wahba Zuhaili.

Apart from these, another prominent fundamental issue was also pondered over.

Feeble Ahadith
After a though-provoking and hearty debate over the topics mentioned above, the reknowned and reputed religious scholars, jurists and Muftees gathered over here put through a resolution based upon the discussions.

Issues pertaining to guardianship in Nikah

  1. As per the tenets of the Islamic Shariah, the ‘guardianship’ in Nikah (marriage) means to have an authority of geeting someone’s Nikah conduct.
  2. It has two facets :-
    1. compulsory guardianship
    2. voluntry guardinship

    Compulsory Guardinship

    An authority which does not depend upon the consent of any other person.

    Voluntry Guardinship:

    An authority which does depend upon the consent of any other person.
    (1.c) According to shariah, the will (guardian) ought to bear the following qualities:

    1. Mental soundness,maturity of age, independent status, herediticaleligibility and being a Muslim. The order of guardians would be similer to that of the paternal relationships in inhereitance.

    2. Every person who is mentally sound and has attained puberty, irrespective of being male or female reserves the right to conduct his/her on Nikah himself/herself. On the contrary, one who has not attained puberty or mentally unsound, the right to get his Nikah conduct goes to his guardians. In this regard, there is obsolutely no differences between a male and female.

    3. A sane adult girl holds the right to enter into her Nikah without the consent of her guardian, Albeit, it would be preferable if the Nikah is performed with the mutual consent of the girl and her guardians.

    4. If a sane adult girl does not care about the family parity in Nikah and the desired standerd of Imahr (dower), the guardian shall have the right to get her separated through a Qazi (judge).

    5. The Nikah of a girl. married of by her father or grandfather before she had attained puberty, stands valid indubitably. however, in case she does not like it because her father or grandfather did it for self gains or in a reckless manner or indeligently or her guardian is a known fasique (A Muslim who does not perform his religious duties and cares a damn a bout them), then she has the right to get herself separated through a Qazi (judge).
      5b. The Nikah conducted by guardians other than the father or grandfather would also by duly valid. nevertheless, if the girl is un satisfied with it, she may separate herself through a Qazi (judge) once she attains puberty.
      5c. A virgin girl must exercise her right to puberty at the time she attains that age provided she is aware of her Nikah before attaining puberty besides having the knowledge of shariah. In circumstances other than these ,she shall hold this right untill she comes to know of her Nikah.
      5d. A consumated (deflowered) girl shall enjoy this right (right to puberty) untill she expresses her consent, either in clear words or with gestures. Moreover, she would continue to enjoy this right until she comes to know of this issues or her Nikah.

    6. In case there are more than one guardian having equal status, the Nikah performed by anyone of them shallhold good.
      6b. If in the presence of guardian relatively closer, a distant guardian conducts the Nikah of a minor boy or a girl, the validity of the Nikah shall depend outrightly upon the permission of the closer guardian. Nonetheless, if it is not feasible to know the opinion of the closer guardian for the time being and there exists afear of losing the apt family perty, then the Nikah conducted by the distant guardian would be perfectly valid.

Resolution on family parity(suitability) in Nikah

Islam looks at the entire mankind with equal respect. It does not differenciates between a man and a man. It gives equal preference and respect to all human beings.

    The Almighty Allah says: íÇ ÃíåÇ ÇáäøÇÓ ÅäÇ ÎáÞäÇßã ãä ÐßÑ æÃäËì æÌÚáäÇßã ÔÚæÈÇ æÞÈÇÆá áÊÚÇÑÝæÇ Åä ÃßÑãßã ÚäÏ Çááå ÃÊÞÇßã
    “O’ mankind we created you from a single (pair) of a male and female, and made you into nations and tribes, that yea may know each other (not that yea may despise each other).Verily the most honored of you in the sight of Allah is (he who is) the most righteous of you”. (Hujrat-13)

Therefore, as per the islamic poin of view, it is impermissible and disgraceful to divide the human beings on the basics of caste, creed, race and colour and to categorize them as superior and inferior ones.
Allah says: "æáÞÏ ßÑøãäÇ Èäí ÂÏã"
“ We have honoured the sons of Adam.” (Al-Isra-70)

  1. Islam projects the concept of Islamic  brotherhood in very clear terms.

    Allah says : "ÅäãÇ ÇáãÄãäæä ÅÎæÉ"
    “The belivers are but a single brotherhood.”  (Hujrat-10)
    Prophet Muhammad (S.A.W.) says: "ÇáãÄãä ááãÄãä ßÇáÈäíÇä íÔÏø ÈÚÖå ÈÚÖÇð"
    “A believer for another belivers is like a building construction in which every part strengthens the other one”. (Bukhai and Muslim)
    He further says in another Hadith :   "ãËá ÇáãÄãäíä Ýí ÊæÇÏåã æÊÑÇÍãåã æÊÚÇØÝåã ßãËá ÇáÌÓÏ ÇáæÇÍÏ ÅÐÇ ÇÔÊßì ãäå ÚÖæ ÊÏÇÚí áå ÓÇÆÑ ÇáÌÓÏ ÈÇáÓåÑ æÇáÍãíø" (Muslim)

“The belivers in their love, mercy sympathy towards each other are like asingle body, if any part of it being subject to any problems the whole body acreamsfor it by awakening and fever.”
Hence,every Muslim is a brother of another fellow Muslims. And to underestimate anybody or bear a superiority complex against anybody on the ground of caste and creed or to feel pride over hereditical lineage, race and language is nothing but a clear and apparent violation of Islam teachinge.

Prophet Muhammad (S.A.W.) further says: áÇ íÍáø áãÓáã Ãä íÍÞÑ ÃÎÇå ÇáãÓáã¡ ßá ÇáãÓáã Úáì ÇáãÓáã ÍÑÇã Ïãå" æãÇáå æÚÑÖå"
“It is not permissable for a Muslim to hate his Muslim brothe and encroach upon his blood, property and dignity is prohibited for him.”

  1. By means of Nikah, two strangers, a man and a women vow life-long companionship and become faithful, trustworthy and a source of comfort for each other.

    Allah says: "åä áÈÇÓ áßã æÃäÊã áÈÇÓ áåäø"
    “They are your garments and you are their garments.”

     (Baqarah -187)
    He further says: "æãä ÂíÇÊå Ãä ÎáÞ áßã ãä ÃäÝÓßã ÃÒæÇÌÇ áÊÓßäæÇ ÅáíåÇ æÌÚá Èíäßã ãæÏÉ æÑÍãÉ"

    “And among his signs is this, that he created for you mates from among themeselves, that ye may dwell in tranquility with them, and he has put love and mercy between your hearts.”

In fact, Islam aims at making Nikah lasting and strong. That is why, it enjoy such instruction and guidelines so that Nikah can achieve it’s objective thoroughly and the husband and wife may share a blissful life upto their last breath.

  1. Family parity is infact similarity and alikeness. The parity or proximity between the spouse in their mental wavelength, their social status, their life styles and religiosity and other such parameters ensures to a large extent, a happy marital life and a firm muptial tie. On the other hand, unequal or unmatched marriages are found to be unsuceeessful, in general.Moreover, the disastrous effects of a failed marriage affect the couple seriously further permeating down to their respective families and clans. That is why, the shariah has objectively taken into account the family parity in the matters of Nikah, in particular.

  2. A Nikah performed with the mutual consent of a major Muslim sane boy and girl would br valid in the eyes of shariah. Family parity is effective only in selecting the other spouse. It has nothing to do with the validity or the establishment of Nikah.

  3. Any non-Muslim who embraes Islam become a respectable member of the Muslim society. As a matter of fact, he holds equal rights and ppriveleges due for those who have been Muslims through generation altogether. If Muslims girls are married off with neo-Muslims youths, it would not only be permissible rather accounted as a righteous deed as well.

  4. As far as family parity is concerned, the husband ought to be at par with the wife, no matter the wife is at parwith husband or not. In other words, it is necessery for the man to have equal or higher status than that of a women. If a sane major boy marries an equal or unequal girl, Nikah would be certainly valid and binding in the eyes of the shariah. the family of the boy has no right, whatsoever, to raise any objection on it.

  5. If a major sane girl weds an unequal boy without the consent of the guardian, the nikah would be valid as per shariah. However, the guardian do have the right to approach the qazi(judge).

  6. In case a boy or the members of his family lineage, clan, social and economics status, and these baseless facts come to limelight later on revealing that the boy has lied and deceived, The nikah sahall remain valid in such a situation,although the girl or her family reserve the right approch the qazi (judge).

  7. Religiousity is a very important factors of family parity. Apart from it other factors like traditions, local customs and social conditions too play an important role in this respect. They vary from place to place across the globle. The family parity cannot be same throughout the world.Thus, the ulema and jurists belonging to different parts of the world shall decide their own respective standars and norms keepingmin mind the social interface, traditions, custom and the like.The family parity should not be associated with grace or disgrace and honour or dishonour.

Resolutions on feeble Ahadith:

  1. After a thoughtful discussion on this issue, the seminar came to the conclussion that there has always been an uproarions contention amongst the schlors on this topic ever since. Some of them have given every kind of reliable and unreliable traditions. the status of correct and valid.It in no way conforms with the saying of prophet Muhammad (p.b.u.h.):
    "ãä ßÐÈ Úáìø ãÊÚãøÏÇ ÝáíÊÈæøà ãÞÚÏå ãä ÇáäÇÑ"

    “Anybody who lisd upon me deliberately,then he has made his abode in the hell.”
    On the other hand, there are some scholars who consider a tradition torally rejectable and unauthentic, if there exists some weakness in it’s Isnad (chain of narrators), even though feeble ahadith are also acceptable on certain occasions under special circumstances.
    In explicit words, it means that if a tradition is feeble because of some weakness in it’s Isnad, it does not necessarily mean that it’s text and content is unacceptable under all circumstances.

  2. Forged or concocted traditions are completely unreliable. Niether can any conclussion drawn from them nor can they be used as a reference without mentining their status. However,in case aconcoctor of Hadith is identified in the chain of narrators, it would not be fair and wise to presume it’s text and content forged relying on it’s Isnad alone without scrutinzing it’s contents by other methods. the hadith concerned might have been narrated through some other Isnad in which there is no concoctor.

  3. If a tradition has been quoted by several reknowned jurists, mujtahids (persons who possess deep knowledge of Islamic Shariah especially Islamic jurisprudence) and Muhadditheen (great scholars of Hadiths) as a proof or they have suggested to act upon it or going further they have interpreted the text in some other way and decided a meaning other then the apparent meaning instead of rejecting it, then it is called Talaqqa-Bil-Qubool (Received By Acceptance).

  4. By means of Talaqqa-Bil-Qubool (received by acceptance), even a weak tradition by Isnad, gets the status of an accepted one.

  5. Besides Talaqqa-Bil-Qubool, the weak traditions become reliable and hence acceptable if they are in consistance with the true hadiths and pronouncements of the companions of the Holy Prophet (P.B.U.H).

  6. The traditions whose narrators are not accused of being liars and fasiques (violators of Islamic Shariah) but happen to be persons with a weak memory shall be strengthened by examining them in various ways. This kind of tradition falls in the category of hsan Li- Ghairihi (correct by other ways) provided that the narrator in the other Isnad, is also accused of having a weak memory only and not of being a liar and a fasique. The weak traditions which are in a vivid contrast with other established texts or the weakness is due to the narrator’s being accused of being a liar or a fasique, then these would not be acceptable and applicaple niether in the acts of virtues nor in precepts.

  7. Feeble traditions are valid for persuation, and encouragement and intimidation provided they do conform with the basic principles of Shariah and are not too feeble. While acting upon them, one may expect reward or punishment as stated in them but one should not have the unflinching belief in them.

  8. In view of the present deterioration in academic standards, it would be apt and better for scholars to quote only the established, correct and authentic traditions in their oratories and writings. Nonetheless, if it is necessery to quote a weak tradition, they should certainly mention their status, rank and degree of authencity in an appropreate manner so that quoting of feeble and unauthentic traditions may not prevail in the society.

  9. If the weakness of tradition lies in it’s Isnad, but is due to the narrator’s weak memory and not because of lack of equity and justness and, moreover, it is not contradicting any correct or established text, it can be justifiably utilized for precautonary ebligations i.e. to ascertain the desirability and udesirability of something.

  10. Those matters on which anyother evidence from the Shariah point of view does not exist, the tradition having weak Isnad could be employed to prove and varify other matters as well. These traditions are relatively better than the reasoning based upon unstated causes in Shariah. Moreover, this has been the stand adopted by the entire predeccessores.
    Note:

    Maulana Abdullah Jolam Sahib does not agree with clauses 9 & 10.

 

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Islamic Fiqh Academy (India) (IFA) was established in 1988 at New Delhi under the guidance and supervision of the great known Islamic Scholars.

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