(Series of Answers by the Eminent Scholar Ata bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to the questions of his Facebook page followers "Fiqhi")
Answer to Question To: Hassan Mohammed
Question:
Assalamu Alaikum Wa Rahmatullah Wa Barakatuh. May Allah protect you, our Ameer and our Sheikh, and grant you aid and victory.
Our virtuous Sheikh, there is an urgent question, if I may, which requires a response so we know how to deal with a matter we have been notified will take place...
The matter is that there is an existing project to build solar panels for electricity on pedestals. Due to the electricity crisis suffered by the city of Yatta in Hebron, they want to carry out this project. However, the issue I specifically want to ask about is that they want to place these panels over a 15-dunam area of land containing old and new graves. Is it permissible to place these panels in this cemetery, next to the graves, and on pedestals that cover the graves from above?
May Allah reward you with goodness.
Answer:
Wa Alaikum Assalam Wa Rahmatullah Wa Barakatuh,
The Messenger ﷺ has clarified that graves have sanctity, so it is not permissible to exhume them, sit on them, or perform any type of work that touches the grave in a way that contradicts the respect due to graves. Some of the evidence for this includes:
1- Abu Dawud narrated through Aisha (ra):
أَنَّ رَسُولَ اللهِ ﷺ قَالَ: كَسْرُ عَظْمِ الْمَيِّتِ كَكَسْرِهِ حَيّاً
"The Messenger of Allah ﷺ said: 'Breaking the bone of a deceased person is like breaking it while they are alive.'" (Sunan Abi Dawud)
It is mentioned in Awn al-Ma'bud Sharh Sunan Abi Dawud: Al-Suyuti said regarding the reason for the Hadith, on the authority of Jabir (ra) who said: We went out with the Messenger of Allah ﷺ to a funeral, and the Prophet ﷺ sat on the edge of the grave and we sat with him. The gravedigger brought out a bone—a leg or an arm—and went to break it. The Prophet ﷺ said:
لَا تَكْسِرْهَا فَإِنَّ كَسْرَكَ إِيَّاهُ مَيِّتاً كَكَسْرِكَ إِيَّاهُ حَيّاً وَلَكِنْ دُسَّهُ فِي جَانِبِ الْقَبْرِ
"Do not break it, for your breaking it when he is dead is like your breaking it when he was alive; rather, bury it in the side of the grave."
Meaning that if the bone exists, it must be preserved and kept in the soil.
Accordingly, exhuming the graves of Muslims is not permissible unless the bones have decayed and become like dust. At that point, it is permissible to plant on it, build on it, and perform other permitted actions. However, if the bones are still present, it is not permissible to exhume the graves, build over them, or perform other works except in specific cases related to the deceased or the like (as clarified by the texts). As for how much time is required to know if the deceased has decayed or not, this is referred to the people of expertise (Ahl al-Khibra) and the verification of the reality (Tahqiq al-Manat).
2- There is no disagreement among the jurists (fuqaha) that sitting on graves for the purpose of urination or defecation is not permissible by consensus. They differed if it was for other reasons... It is stated in the Kuwaiti Encyclopedia of Fiqh:
"The Hanafis (according to their school), the Shafi'is, and the Hanbalis hold that it is disliked (makruh) to sit on graves, because Abu Marthad al-Ghanawi narrated: 'The Prophet ﷺ said:
لاَ تَجْلِسُوا عَلَى الْقُبُورِ وَلاَ تُصَلُّوا إِلَيْهَا
"Do not sit on graves, and do not pray towards them."
And on the authority of Abu Hurairah (ra), he said: The Prophet ﷺ said:
لأَنْ يَجْلِسَ أَحَدُكُمْ عَلَى جَمْرَةٍ فَتُحْرِقَ ثِيَابَهُ فَتَخْلُصَ إِلَى جِلْدِهِ خَيْرٌ لَهُ مِنْ أَنْ يَجْلِسَ عَلَى قَبْرٍ
"It is better for one of you to sit on a live coal which eats through his clothes and reaches his skin than for him to sit on a grave."
The Hanafis and Shafi'is said: If one wishes to sit during a visit to the graves, they should sit far or near according to their status during life. The Shafi'i phrasing is: The visitor should draw near to the grave to the extent they would draw near to the person in life if they visited them.'
Al-Tahawi of the Hanafis—attributing the view to Abu Hanifa, Abu Yusuf, and Muhammad—held the permissibility of sitting on the grave, which is also the view of the Malikis, because it was narrated that Ali (ra) used to lean on a grave and sit on it. Al-Tahawi said: Dislike (karahah) is absolutely removed if the sitting is for recitation." (End quote)
3- If it is intended to establish a project to build solar panels for electricity on pedestals over a 15-dunam area for old and new graves... then it must be examined:
Can these pedestals be erected and the panels implemented without stepping on the graves, harming the graves, exhuming them, or exposing their bones, especially the old graves? I find that unlikely... As for your saying that we will be careful not to step on any grave and that no pillar of these pedestals will fall on any grave in the new cemetery, there could be credibility to this statement regarding the new graves because they are visible to the eye and can be avoided... But as for the old cemeteries, if the graves are not visible, how can it be ensured that they are not walked over and so on?
Therefore, to avoid the forbidden (haram) or at least the disliked (makruh), stay away from the cemeteries and look for another location... and Allah is Most Knowing and Most Wise.
Your brother, Ata bin Khalil Abu Al-Rashtah
11 Rabi’ al-Awwal 1440 AH Corresponding to 19/11/2018 CE
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