Hurmat-e-Musaaharah

Question

Please give us some extensive information concerning masaail pertaining to Hurmat-e-Musaaharah.

Answer

Hereunder are a number of Masaa’il extracted from various Kitaabs; 

A person committed Zinah with his daughter. As a result his wife becomes Haraam upon him and he cannot continue living with his wife any longer. Such a person should also verbally tell his wife, “I have divorced you.” She may remarry another person after serving her Iddat but it will not be permissible to marry the same husband (ever) again.
[Aap Ke Masaa’il Aur Unka Hal Pg. 392 Vol.6]

If a person touches a strange woman with desire then it is not permissible to marry her daughter (or mother) but marrying the same woman (whom he touched) is permitted. 
[Aap Ke Masaa’il Aur Unka Hal Pg. 392 Vol.6]

By touching a strange woman with desire, her ascendants and descendants become Haraam upon the one that touched her. Similarly, the woman that has been touched (with lust) cannot marry the ascendants and descendants of the man that touched her. Hurmat-e-Musaaharat is established by touching (with lust/desire) even a strand of hair on the head of the woman (even though there may be a barrier such as a scarf) but the heat of the body can be felt (over and above the barrier).  

Hurmat is also established by the female looking at the male’s private part or the male looking at the internal portion of the female’s private part with lust and desire. Which looking will determine whether Hurmat has taken place or not? If by looking at the private part an erection is caused or the current erection is further increased then Hurmat will be established. However, if one ejaculates whilst looking at the private part then Hurmat doesn’t take place.  

In the case of a woman and an extremely elderly person the organ going into motion constitutes Hurmat or if it was already in motion then by it moving even further, Hurmat is established.   

If a woman confesses that her father-in-law was intimate with her but she has no evidence then she will become Haraam upon the husband if he (the husband) regards his father as untruthful in his denial of doing so. It is Waajib upon the husband that he leaves her by telling her, “I have left you” or he issues a divorce. However, if the husband rejects the confession of the wife and regards the denial of the father as true (that he was not intimate with her) then she won’t be Haraam and the Nikah will remain intact.
[Fataawa Mahmoodiyya Pg.457/458 Vol.16]

If a man touches a woman and there is desire only from one party and not the other then too, Hurmat will be established.  

If a man is told, what did you do with your wife’s mother and he in response says, “I was intimate with her” then Hurmat will established. If he later states that he was lying then his word will not be accepted even though they were joking. Being persistent (in one’s confession) is not a requisite for Hurmat to be established.     

If a man confesses before two males that he committed Zinah with his daughter (for example) then his wife becomes Haraam upon him immediately. Being persistent on this confession is not a condition. If he later retracts from his confession by saying that he spoke a lie, the Muslim judge will not believe him.     

If a grandfather kisses his grandson’s wife with desire then she will become Haraam upon her husband.  The Nana and Dada are both equal in the chapter of Hurmat-e-Musaaharat. 
[Fataawa Mahmoodiyya Pg.494 Vol.16]

Checked and Approved By:

Mufti Muhammed Saeed Motara Saheb D.B.

References

( وَ ) حَرُمَ أَيْضًا بِالصِّهْرِيَّةِ ( أَصْلُ مَزْنِيَّتِهِ ) أَرَادَ بِالزِّنَا فِي الْوَطْءِ الْحَرَامِ ( وَ ) أَصْلُ ( مَمْسُوسَتِهِ بِشَهْوَةٍ ) وَلَوْ لِشَعْرٍ عَلَى الرَّأْسِ بِحَائِلٍ لَا يَمْنَعُ الْحَرَارَةَ ( وَأَصْلُ مَاسَّتِهِ وَنَاظِرَةٍ إلَى ذَكَرِهِ وَالْمَنْظُورُ إلَى فَرْجِهَا ) الْمُدَوَّرِ ( الدَّاخِلِ ) وَلَوْ نَظَرَهُ مِنْ زُجَاجٍ أَوْ مَاءٍ هِيَ فِيهِ (وَفُرُوعُهُنَّ ) مُطْلَقًا وَالْعِبْرَةُ لِلشَّهْوَةِ عِنْدَ الْمَسِّ وَالنَّظَرِ لَا بَعْدَهُمَا وَحَدُّهَا فِيهِمَا تَحَرُّكُ آلَتِهِ أَوْ زِيَادَتُهُ بِهِ يُفْتَى وَفِي امْرَأَةٍ وَنَحْوِ شَيْخٍ كَبِيرٍ تَحَرَّكَ قُبُلُهُ أَوْ زِيَادَتُهُ وَفِي الْجَوْهَرَةِ : لَا يُشْتَرَطُ فِي النَّظَرِ لِفَرْجٍ تَحْرِيكُ آلَتِهِ بِهِ يُفْتَى هَذَا إذَا لَمْ يُنْزِلْ فَلَوْ أَنْزَلَ مَعَ مَسٍّ أَوْ نَظَرٍ فَلَا حُرْمَةَ بِهِ يُفْتِي ابْنُ كَمَالٍ وَغَيْرُهُ .

فلو مست المراة عضوا من اعضاء الرجال بشهوة او نظرت الي ذكره بشهوة فثبتت الحرمة
(تاتارخانيه ص220 ج2)

وتكفي الشهوة من احدهما قال الشامي هذا يظهر في المس
(در مختار ص283 ج2)

وفي الْخُلَاصَةِ قِيلَ لِرَجُلٍ ما فَعَلْت بِأُمِّ امْرَأَتِك قال جَامَعْتهَا ثَبَتَتْ الْحُرْمَةُ وَلَا يُصَدَّقُ أَنَّهُ كَذَبَ وَإِنْ كَانُوا هَازِلِينَ وَالْإِصْرَارُ ليس بِشَرْطٍ في الْإِقْرَارِ لِحُرْمَةِ الْمُصَاهَرَةِ ا هـ
(البحر الرائق ص101 ج3)

لو أَقَرَّ بِحُرْمَةِ الْمُصَاهَرَةِ يُؤَاخَذُ بِهِ وَيُفَرَّقُ بَيْنَهُمَا وَالْإِصْرَارُ على هذا الْإِقْرَارِ ليس بِشَرْطٍ حتى لو رَجَعَ عن ذلك وقال كَذَبْتُ فَالْقَاضِي
(الفتاوي الهنديه ص275 ج1)

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