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7th Fiqhi Seminar

Date: Oct. 22 - 24, 1995 Venue: Aligarh

The Eighth Islamic Fiqh Seminar was held at the Aligarh Muslim University Campus Aligarh. It was hosted by the Department of Sunni Theology in which Scholars, jurists and representatives of reputed seminaries form all parts of India representing all schools of thought participated. The participants included a good number of the members of the teaching community of the University also. Al-sheikh Wahba Zuhaili, the renowned Muslim jurist of Syria was the chief guest.

 On Medical Ethics

    1. Only a duly qualified person whose competency in the mater has been authenticated by a credible source is competent to undertake treatment of partients. It is not permissible in Shariah to treat patients without competence.
    2. If, during the course of treatment by a person not permitted by Shariah to do so, some major harm is caused to the patients’s health, the treating person shall be liable.
  1. If the patient suffers harm to his health due to the negligence of or some lapse on the part of the person treating him (he, even may be a qualified physician), that person will be liable.
  2. If, in spite of opportunity, the doctor performs an operation without the consent of the patient or his next of kin and the operation either causes death or some injury to the patient, liability will be on the doctor.
  3. If the patient is in an unconcious state and his next of kin are also not available and the doctor feels that to save the life or any limb of the patient immediate operation is called for and he performs the operation without obtaining any one’s consent, and it results in some injury to the patient, the doctor will not be held liable.
  4. If a person negotiating for marriage with some woman is suffering from such disease or deficiency which if becomes known to the woman she may decline to accept the proposal, and his doctor is in the know of that disease or deficiency, and the concerned lady or her guardian contacts the doctor and in the context of the impeding marriage proposal enquires about the true state of the health of the person, it would be incumbent on the doctor to state the factual position. In case the lady or any or her guardians do not contact the doctor in this regard, it will not be incumbent on the doctor to, of his own accord, inform the lady or her guardians of the person’s disease or deficiency.
  5. If the eye-sight of a driver employee gets impaired it will be incumbent on his doctor to inform the employer of the same. Similarly if the pilot of an aeroplane or a bus-driver is so addicted to drinking as may jeopardise the safety of the passengers, it will be incumbent on the doctor to inform of it to the concened department.
  6. If the doctor knows about an offence having been committed by his patient and some one else is being prosecuted for that offence, it will be incumbent on the doctor to make the fact known in order to save the innocent person. The principle of confidentiality will not applicable in such a case.

On Acquired Immune Deficiency Syndrome (AIDS)                           

  1. If a person, not disclosing that he is suffering form AIDS, contracts a marriage, the wife shall have the right to have the marriage dissolved. She will have the same right in the case of her husband contacting AIDS subsequent to marriage provided that AIDS assumes serious proprtion.
  2. If a woman suffering form AIDS gets pregnant and a qualified doctor be of the opinion that in all likelihood the child in foetus will also develop AIDS, in that case, prior to the life coming in the embroyo, the period for which the Muslim jurists have fixed at 120 days, permission for abortion can be given.
  3. If an AIDS patient is completely in the grip of the disease and is rendered incapable of performing normal functions of life, such a person will be treated as one on death- bed.
  4. It is the moral responsibility of an AIDS patient to inform his kinsmen of it and to , also, take all necessary precautionary measures.
  5. If an AIDS patient insists upon his doctor to keep it under wraps and the doctor is of the opinion that by so doing there is the likelihood of injury to the members of patient’s household, to patient’s relatives and to the society at alrge, then it will be incumbant on the doctor to convey the information to the relatives of the patient and to the department of health.
  6. In respect of the persons suffering from AIDS or other infectious disease, it is the duty of their folks, relatives, and the society as a whole, not to leave them isolated and uncared for. Taking all necessary precautions good care should be taken of the patients and due cooperation be offered in their treatment adopting all precautionary measures.
  7. It is improper to keep the AIDS-infected children deprived of education. Observing due precautions, arrangements for imparting education to them should be made.
  8. Restriction of movement in and out of plague-affected areas are desirable except in cases of extreme necessity.
  9. It is haram (totally forbidden) and a major sin for AIDS patient to, knowingly, transmit the disease to any other person. Such a person will be liable for penalisation in view of the nature of the act and for the harmful affect it has on an individual or on the society as a whole.

On ‘Urf (Usage) & Parctices

Urf and its Forms:

  1. Literally ‘Urf means a commonly known matter. In the terminology of Shariah by ‘Urf are meant such sayings and acts which are prevelant in a given society and people act in accordance thereof.
  2. Aadat, in lexican, means the occurance of something. Terminologically it covers such things which, without any rational relationship, occur so repeatedly that observance of the same becomes as common as of something natural.
  3. There is no substantial differences between ‘Urf and ‘Adat. Both are the same in their intent and import, though different in their application.
  4. The difference between ‘Urf and Ijma (consensus) is that ‘Urf emerges out of the conduct of the people whereas Ijma (consensus) is unanimity of opinion of Mujtahideen on a given issue.
  5. ‘Urf is of two kinds: spoken ‘Urf and ‘Urf by deeds. When some word or combination of some words begin to have a particular meaning among a people and, when spoken, every one starts taking them to mean the same without necessarily any rational or logical connection, it is termed as a spoken Urf (Urf-e-Qauli). The way in which a people normally and usually act is ‘Urf-e-Amali’ (practice).
  6. Shariah acknowledges the ‘Urf-e-Qauli and ‘Urf-e-amali both. If something gains currency among a majority of Muslim population of the world it would be ‘Urf-e-aam (general usage). If it becomes prevelant in a particular city, province or township or limitedly among a particular group of persons, it will be ‘Urf-e-Khas i.e. limited Urf.
  7. Every such Urf or usage which runs contrary to any specific injunction of shariah, or its spirit or any accepted objective of Shariah, will be invalid e.g. giving of Jahez (dowry) at the time of marriage as has become customery, or demanding money and other valuable items from the bride’s people by the bride- groom, depriving girls from inheritance, utilising the usufruct of the property taken in mortgage etc.

Conditions For ‘Urf’ Being Acceptable

In Shariah there are four conditions for an ‘Urf being acceptable.

  1. It should be either total or shared by a large number of people i.e. either cent percent persons in a given society be its adherent or an overwhelming majority of them.
  2. It should already have been in existence prior to the occurance of a particular incident and be in vogue at the time of its occuracne.
  3. There should be no specific understanding between the parties to a deal running counter to the Urf.
  4. Acting according to the Urf should not entail the contravention of any clear injunction of the Shariah or violation of a clear principle laid down by Shariah.

Urf and Shariah

  1. If a commonly in vogue Urf is at variance with a general Nus (Plural ‘Nusoos’ i.e. Injunction of Shariah) in such a manner that acting according to Urf may not entail the giving up of the Nus altogether but only particularises the general Nus, in that case it is permissible to particularise the Nus in its application for the purpose of acting according to the Urf.
  2. In case a commonly in vogue Urf is in conflict with the Nus so much so that acting on Urf entails the giving up of the Nus altogether, then the Urf will not be acceptable and shall not be acted upon.
  3. Those Nusoos in respect of which it is conclusively established that those are based on some Urf, the injuctions flowing from such a Nus may be altered with the change in the Urf. However, it is emphasised that to decide whether a Nus is based on ‘Urf is an extremely delicate job warranting extreme caution. An authentic finding in the matter can only be given collectively be unowned and celebrated Islamic scholars who are quite God-fearing and cautious in their approach.
  4. If a commonly in vogue Urf (Urf-e-Aam) is in conflict with something based on Qiyas (analogy), Urf will take precedence and Qiyas will not be acted upon against ‘Urf.
  5. In case where an Urf-e-Khas is in vogue in a very limited area, then Qiyas (analogy) cannot be given up because of such an ‘Urf.
  6. If an ‘Urf -e-Khas is prevalent in a very large area, then it would be okey if Qiyas is given a go by as against it.
  7. If any ‘Urf is in conflict with the fundamental objectives of Shariah, then such an ‘Urf will have no value and will be ignored.

Change in ‘Urf

  1. Those issues of ‘Zahir riwayat’ which stand proved on the strength of clear nusoos (Quran and Sunnah) will not be given up because of any ‘Urf. However, the issues emanating from the same can be given up against an ‘ Urf.
  2. If an opinion expressed in one school of Fiqh (Islamic Jurisprudence) be contrary to an ‘Urf while there is another opinion in any other school of Fiqh which is in consonance with the general conditions governing the validity of an ‘Urf, adopting that other opinion will not tantamount to (going out of the parameters of the Shariah), rather acting on the Urf is recommended.

Those verdicts which are based not on nusoos (Quran and Sunnah) but only on ‘Urf and practice, will be modified in consonance with newly emerged ‘Urf in case the ‘Urf changes.

Marriage with Conditions

  1. If marriage is conditioned with such terms as are meant only to emphasise such rights and obligations which are ipso facto created by a wedloock, such conditions will be valid and it will be incumbent the husband to fulfil those.
  2. To encumber a marrige tie with such conditions which go against the very philosophy and objectives of marriage, or which are forbiden by Shariah, will be invalid, e.g. the condition absolving the husband of his liability to provide maintenance to the wife or the giving of Jahez (dowry) or payment of Tilak etc.
  3. If such conditions are agreed upon which neither the Shariah has ordained nor has specifically prohibitted, then it will be incumbent to act according to such conditions.

Resolution on the Exclusion of Females from the Agricultural Property

This meeting of eminent Ulama and Muftis coming from all parts of India and abroad expresses its grave concern over the immoral, illegal and unconstitutional excusion of Muslim females in particular and females in general from the repulsive but still prevalent scheme of succession under U. P. Zamindari Abolition & Lnad Reforms Act. (U. P. Act No. 1 of 1951).

The participants of this 8th Fiqhi Seminar similarly express their displeasure at the omission of “Agricultural Land” from the definition of “Muslim Personal Law” as defined in Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. The participants of the 8th Fiqhi Seminar wish to impress upon the Central Government and the state Government of Uttar Pradesh of the long standing demand of Muslim community for the restoration of Islmic right of inheritance to their Muslim sisters by including “agricultural land” within the purview of “Muslim Personal Law”.

This seminar is alive to the fact that most Muslim females do get a share even in the agcicultural lands because of many fatwas which have been issued to this effect in the past. Still, there is urgent need for an amendment in both the Shariat Act as well as the U. P. Zamindari Abolition Act to undo thid injustice. This meeting therefore, unanimously, resolves to request the All India Muslim Personal Law Board to seek an amendment in the impugned law and demand the inclusion of “agriculture land” in section 2 of Shariat Act so that what Islam has given to women talk is not denied to them.

The meeting further issues a directive to the Muslims of Uttar Pradesh to give women their share of property in accordance with Holy Quran and Sunnah inclusive of agricultural lands and not to deny this right of theirs on the basis of any man made legal system.

 

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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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