Question One:
In the book The Social System, on page 121, the "Conditions of Conclusion" (Shurut al-In'iqad) for marriage are mentioned, which, if not met, render the marriage contract void. On page 122, the "Conditions of Validity" (Shurut as-Sihhah) are mentioned, which, if not met, make the marriage contract defective (fasid). However, I did not find the "Mahr" (dowry) mentioned in either. If it is neither a condition of conclusion nor a condition of validity—meaning the marriage contract is valid without a mahr—then what is the status of the mahr in the marriage contract?
Answer:
Regarding the mahr, yes, it is neither a condition of conclusion nor a condition of validity. This means that if a marriage contract meets its conditions of conclusion and validity, it is valid even if the mahr is not specified. However, Sharia rules are of two types:
Hukm Wad’i (Administrative/Positional Rules), which include conditions (shart), causes (sabab), etc.; and Hukm Taklifi (Legal/Defining Rules), which include the prohibited (haram), the obligatory (wajib), etc. Sharia issues do not fall outside these two categories. A ruling might fall under Hukm Taklifi, being a fard (obligation/wajib), mandub (recommended), mubah (permissible), makruh (disliked), or haram (prohibited). Alternatively, it may fall under Hukm Wad’i, being valid (sahih), void (batil), defective (fasid), a condition (shart), a cause (sabab), or an impediment (mani’), and so on.
By studying the subject of the mahr, it becomes clear that it falls under Hukm Taklifi. It is a fard wajib (obligatory duty) upon the husband for the wife. If it is specified (summiya), then it is as specified. If it is not specified, then the "dowry of her equals" (mahr al-mithl) is mandatory.
As for why it is obligatory, it is due to what Al-Bukhari narrated via Sahl bin Sa’d:
«... فَقَالَ رَجُلٌ مِنْ أَصْحَابِ رسول الله صلى الله عليه وسلم زَوِّجْنِيهَا يَا رَسُولَ اللَّهِ قَالَ أَعِنْدَكَ مِنْ شَيْءٍ قَالَ مَا عِنْدِي مِنْ شَيْءٍ قَالَ وَلَا خَاتَمٌ مِنْ حَدِيدٍ قَالَ وَلَا خَاتَمٌ مِنْ حَدِيدٍ وَلَكِنْ أَشُقُّ بُرْدَتِي هَذِهِ فَأُعْطِيهَا النِّصْفَ وَآخُذُ النِّصْفَ قَالَ لَا هَلْ مَعَكَ مِنْ الْقُرْآنِ شَيْءٌ قَالَ نَعَمْ قَالَ اذْهَبْ فَقَدْ زَوَّجْتُكَهَا بِمَا مَعَكَ مِنْ الْقُرْآنِ»
"...A man from the companions of the Messenger of Allah (saw) said: 'O Messenger of Allah, marry her to me.' He said: 'Do you have anything?' He said: 'I have nothing.' He said: 'Not even an iron ring?' He said: 'Not even an iron ring, but I will split this cloak of mine and give her half and keep half.' He said: 'No. Do you know any of the Quran?' He said: 'Yes.' He said: 'Go, for I have married her to you for what you know of the Quran.'"
An-Nasa’i narrated something similar in Al-Sunan al-Kubra, and his version says:
«...وَلَكِنْ هَذَا إِزَارِي قَالَ سَهْلٌ مَا لَهُ رِدَاءٌ فَلَهَا نِصْفُهُ فَقَالَ رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مَا تَصْنَعُ بِإِزَارِكَ إِنْ لَبِسْتَهُ لَمْ يَكُنْ عَلَيْهَا مِنْهُ شَيْءٌ وَإِنْ لَبِسَتْهُ لَمْ يَكُنْ عَلَيْكَ مِنْهُ شَيْءٌ..»
"...'But here is my lower garment (izar).' Sahl said: 'He had no upper garment (rida), so she would have half of it.' The Messenger of Allah (saw) said: 'What will you do with your garment? If you wear it, she will have nothing of it, and if she wears it, you will have nothing of it...'"
The Messenger (saw) asked the man he intended to marry to one of the women to pay a mahr, even if it were an iron ring. When he could not, as he owned nothing but his garment, he offered to split his garment in two and give half as a mahr. Since the garment would not suffice to cover the awrah of both, the Messenger (saw) asked him to teach her what he knew of the Quran, and the reward for teaching her would be her mahr. All of these are decisive indications (qara'in jazimah) of the obligation of the mahr.
As for her having the dowry of her equals if it is not specified, it is based on what At-Tirmidhi narrated via Abdullah bin Mas’ud, who said it is a hasan sahih hadith:
« أَنَّهُ سُئِلَ عَنْ رَجُلٍ تَزَوَّجَ امْرَأَةً وَلَمْ يَفْرِضْ لَهَا صَدَاقًا وَلَمْ يَدْخُلْ بِهَا حَتَّى مَاتَ فَقَالَ ابْنُ مَسْعُودٍ لَهَا مِثْلُ صَدَاقِ نِسَائِهَا لَا وَكْسَ وَلَا شَطَطَ وَعَلَيْهَا الْعِدَّةُ وَلَهَا الْمِيرَاثُ فَقَامَ مَعْقِلُ بْنُ سِنَانٍ الْأَشْجَعِيُّ فَقَالَ قَضَى رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فِي بِرْوَعَ بِنْتِ وَاشِقٍ امْرَأَةٍ مِنَّا مِثْلَ الَّذِي قَضَيْتَ فَفَرِحَ بِهَا ابْنُ مَسْعُودٍ»
"He was asked about a man who married a woman but did not fix a dowry (sadaq) for her and did not consummate the marriage before he died. Ibn Mas’ud said: 'She is entitled to a dowry like that of women of her peerage, without deficiency or excess; she must observe the waiting period (iddah) and she has the right of inheritance.' Then Ma'qil bin Sinan al-Ashja’i stood up and said: 'The Messenger of Allah (saw) gave a judgment concerning Birwa’ bint Washiq, a woman from among us, similar to what you have judged.' Ibn Mas’ud was delighted by this." Abu Dawood narrated something similar.
This was a woman who married without a specified mahr, and the Messenger of Allah (saw) ruled that she was entitled to a mahr similar to that of her peers.
Therefore, even if the mahr is not a condition of conclusion or validity, it is an obligatory debt (fard wajib) upon the husband to the wife. It must be paid to her, and he is sinful if he does not pay it. The Islamic State takes it from him by force for the wife, like any other mandatory right, and punishes him with a discretionary punishment (ta'zir) if he procrastinates while being capable, in order to harass the wife or consume her rights.
In summary: the mahr is not a condition (shart), but it is an obligation (fard) upon the husband to the wife; meaning it falls under Hukm Taklifi and not Hukm Wad’i.
Question Two:
In the book The Introduction (Part One), page 79, the third paragraph states:
"...This includes the impermissibility of inflicting punishment using that which Allah has made a punishment in the Hereafter, which is fire; i.e., the impermissibility of punishment by burning with fire."
On page 82 (middle of the page), it states:
"...The Legislator has defined the punishments by which sinners are punished, which are: execution, flogging, stoning, exile, amputation, imprisonment, destruction of property, fining, public disclosure (tashhir), and cauterization (kay) with fire for any part of the body; and other than these, it is not permitted to punish anyone."
The question is, how can the impermissibility of torture by fire be reconciled with the statement regarding the permissibility of cauterization with fire?
Answer:
Burning with fire (al-harq bin-nar) means placing the fire itself on the person's body, such as lighting a fire and placing a person in it, or placing their hand or foot in it... or placing any type of fire on their body, such as connecting their body to an electrical wire connected to a power source... or similar things that are called "fire that burns." All of this is impermissible because it is torture by fire, i.e., burning the body with a fire source that possesses the property of burning.
As for heating an iron rod or a nail in fire and then holding that rod or nail and placing it on the person's body, here you have not placed the fire source itself on the body. Rather, you have placed something that was heated by fire and separated from the fire source. This is what is called cauterization (kay) with fire. This was used by the Arabs, and still is, as a medicine; a rod is heated in fire and the site of pain or the like is cauterized with it.
You might ask: isn't cauterization with fire also harsh? Yes, it is harsh, as it is a punishment for those who deserve it, but it is legitimate in its proper context. However, it is not "burning with fire," meaning it is not the placement of the fire source itself on the body.
In summary: Burning with fire—i.e., torture by placing the fire source on the body—is haram and impermissible according to Sharia texts.
Cauterization with fire—i.e., heating an iron rod with fire and placing the rod on the body, rather than the fire itself—is permissible according to Sharia texts.
Question Three:
In the book The Concepts (Al-Mafahim), page 50, it says: "Furthermore, many of the Masha'ir (rites/sites) of Hajj, such as circumambulating the Kaaba, touching and kissing the Black Stone, and the sa'i between Safa and Marwa..." The word masha'ir appears in other places in a similar manner.
Isn't it more correct to say "many of the sha'air (rituals) of Hajj" instead of "masha'ir of Hajj"? If this is correct, will "masha'ir" be corrected to "sha'air" where it appears?
Answer:
- The word sha'irah is the singular of sha'air, and mash'ar is the singular of masha'ir. They can carry the same meaning. However, the common usage of "masha'ir" refers to the landmarks of Hajj, such as Safa, Marwa, Mina, Muzdalifah, Arafat, and the jamarat...
While the usage of "sha'air" refers to the actions and rituals of Hajj, such as sa'i, tawaf, standing at Arafat, and throwing the stones...
- However, the correct linguistic position is that they are interchangeable in meaning:
Allah (swt) says:
إِنَّ الصَّفَا وَالْمَرْوَةَ مِنْ شَعَائِرِ اللَّهِ
"Indeed, as-Safa and al-Marwah are among the symbols (sha'air) of Allah..." (Surah Al-Baqarah 2:158). Here, sha'air refers to the landmarks of Hajj, not just the act of sa'i between them.
And Allah (swt) says:
فَإِذَا أَفَضْتُمْ مِنْ عَرَفَاتٍ فَاذْكُرُوا اللَّهَ عِنْدَ الْمَشْعَرِ الْحَرَامِ
"...But when you depart from 'Arafat, remember Allah at al-Mash'ar al-Haram..." (Surah Al-Baqarah 2:198). Here, "al-Mash'ar" is applied to Muzdalifah, i.e., a landmark of Hajj.
It is mentioned in the language books:
In Al-Qamus al-Muhit (Vol. 1, p. 434): "The shi'ar of Hajj are its rituals and its landmarks. The sha'irah, the sha'arah, and the mash'ar: the greatest of them."
In Al-Muhit fil-Lughah (Vol. 1, p. 43): "The sha'air of Hajj are its actions and landmarks, and the singular is sha'irah."
In Lisan al-Arab (Vol. 4, p. 410): "The shi'ar of Hajj are its rituals, landmarks, traces, and actions; the plural of sha'irah... The sha'irah, the sha'arah, and the mash'ar are like the shi'ar...
Al-Lihyani said: The sha'air of Hajj are its rituals, the singular is sha'irah... The masha'ir are the landmarks that Allah encouraged and commanded to be maintained, and from this Al-Mash'ar al-Haram was named.
Az-Zajjaj said regarding the sha'air of Allah: He means by them all the acts of worship of Allah which Allah has 'marked' (ash'araha), i.e., made them as signs for us... It is only said sha'air for every sign from that which is used for worship... for this reason, the signs which are the places of worship of Allah the Exalted are called sha'air...
Al-Azhari said: I do not know of the masha'ir of Hajj except from the fact that ish'ar is notification/marking and shi'ar is a sign, so the masha'ir of Hajj are the signs for it..."
It is clear from this that sha'air and masha'ir are interchangeable in meaning. However, as we mentioned at the beginning, it became famous to use "masha'ir" for the landmarks of Hajj like Safa, Marwa, Mina, Muzdalifah, Arafat, and the jamarat... and to use "sha'air" for the actions and rituals of Hajj like sa'i, tawaf, standing at Arafat, and throwing the stones.
As for correction, if it becomes clear to us that this usage causes confusion and it is appropriate to amend it, then we will do so, Allah willing.
Question Four:
In the book The Institutions of the State of the Khilafah, page 136, the 4th line from the bottom, it says: "When he was struck—meaning Salim, the Mawla (freed slave) of Abu Hudhayfah—at Yamama, his inheritance was brought to Umar bin al-Khattab..."
It is well known that the Battle of Yamama took place during the era of the Khalifah Abu Bakr, yet the text mentions Umar bin al-Khattab. How do we reconcile this?
Answer:
- Yes, it was mentioned in The Institutions of the Khilafah on that page:
(Ash-Shafi’i narrated in Al-Umm, and Ibn Hajar authenticated it from Abdullah bin Wadi'ah, who said: "Salim, the Mawla of Abu Hudhayfah, was a mawla of a woman from us called Salma bint Ya'ar. She set him free as a sa'ibah (without patronage) in the Jahiliyyah. When he was struck at Yamama, his inheritance was brought to Umar bin al-Khattab. Umar called Wadi'ah bin Khidham and said: 'This is the inheritance of your mawla and you are more entitled to it.' He said: 'O Commander of the Faithful, Allah has made us independent of it; our companion set him free as a sa'ibah, so we do not want to take anything from his matter.' Umar then placed it in the Bayt al-Mal.")
It is clear from the text that his inheritance came to Umar during his Khilafah, even though the martyrdom of Salim, the Mawla of Abu Hudhayfah, was in the Battle of Yamama, which occurred during the Khilafah of Abu Bakr (ra).
The explanation for this is that the Battle of Yamama occurred at the end of the wars against the apostates (Ahl al-Riddah), and there is a difference of opinion regarding its date. Ibn al-Athir says in Al-Kamil:
"There is a disagreement regarding the date of the Muslims' war against these apostates. Ibn Ishaq said: The conquest of Yamama, Yemen, and Bahrain, and the sending of troops to Ash-Sham occurred in the year twelve (AH). Abu Ma'shar, Yazid bin Iyad bin Ja'dabah, and Abu Ubaidah bin Muhammad bin Ammar bin Yasir said: All the conquests of the Riddah were by Khalid and others in the year eleven, except for the matter of Rabi'ah bin Bujayr, which was in the year thirteen."
The most likely view seems to be that it was shortly before the sending of troops to Ash-Sham, which was in the year thirteen. Thus, the Battle of Yamama could have been at the end of the year twelve or the beginning of the year thirteen. Since we know that Umar's Khilafah began at the end of Jumada al-Thani in the year thirteen, this means that the inventory and processing of the inheritance of Salim, the Mawla of Abu Hudhayfah, was only completed after Abu Bakr (ra) had passed away and Umar had been given the pledge of allegiance for the Khilafah. Therefore, the case was presented to Umar (ra).