Question
There is a young man named Zaid. Within the extended family is a woman named Fatimah who has a daughter named Aisha. There families have a good bond with each other.
The family collectively decided that Zaid can marry Aisha and both Zaid and Aisha were happy with this arrangement. However, before the marriage could take place, Zaid fell into a grave sin with Fatimah (the mother). While no intercourse occurred, there was inappropriate physical contact between Zaid and Fatimah, including kissing and touching without clothes. Zaid deeply regrets this incident and has repented sincerely for his actions. Fatimah has also repented and resolved to avoid any further wrongdoing.
Zaid later learned that, according to the Hanafi school of thought, such an act renders Aisha (the daughter) haram for him to marry. This has created a significant dilemma because breaking the engagement would likely lead to chaos within the family and harm their relationships.
Answer
According to the Hanafi Madh-hab, if a male and female touch each other without a barrier, or with a thin barrier (cloth, etc.) that doesn’t prevent the warmth of the body from being felt, all of the females descendants and ascendants become Haraam for the male, and all of his descendants and ascendants become Haraam for her, provided there was Shahwah (lust/sexual desire) from at least one side at the time of touching.
For a young male, Shahwah is determined by erection, or an increase in erection if it was already present before touching. For a woman or an old man, it is determined by the quickening of the heartbeat.
However, if the male ejaculated from this erection, the ruling of Hurmat will not apply, as long as the ejaculation did not take place in the female’s front private part.
Based on the Masaa’il mentioned above, if the case mentioned in the query fits the conditions given (as indeed seems to be the case due to the kissing and fondling that took place), Zaid and Aisha’s marriage will have to be cancelled, as they are no longer Halaal for each other. The laws of Halaal and Haraam cannot be compromised for the sake of family ties or dignity.
Checked and Approved By:
Mufti Muhammed Saeed Motara Saheb D.B.
References
(و) أصل (ممسوسته بشهوة) … بحائل لا يَمْنَعُ الحرارة (و) أصلُ (ماستِهِ) … (وفروعُهنَّ) مطلقا، والعبرة للشهوة عند المس والنظرِ لا بعدهما، وحَدُّها فيهما تحرك آلته أو زيادته، به يفتى، وفي امرأة ونحو شيخ كبير تحرُّك قلبه أو زيادته… هذا إذا لم يُنزل، فلو أنزل مع مس أو نظر فلا حرمة، به يُفتى [الدر المختار
(رد المحتار {دار السلام}) ٨/١٠٩-١١٤]
(قوله: بشهوة) أي: ولو من أحدهما كما سيأتي… (قوله: بحائل لا يَمْنَعُ الحرارة) أي: ولو بحائل إلخ… قوله: مطلقاً) يَرجِعُ إلى الأصول والفروع، أي: وإِنْ عَلَوْنَ وَإِنْ سَفَلْنَ
[رد المحتار (دار السلام) ٨/١٠٩-١١١]