Question:

I am happy to have found this website of yours. I was born a Muslim and I learned a lot of Islamic teachings after I reached adolescence. I am trying to understand my religion. 
I have read in some of your answers on the issue of apostasy that the punishment for the apostate is to be put to death. But I have read on another website that the apostate who is to be put to death is the one who wages war on Islam (muhaarib). 
I am more inclined towards the second opinion. 
The reason for that is that I have friends who were born in Muslim families and who have Muslim names, but some of them do not know how to do wudoo’ or how to pray, but they acknowledge the Shahaadatayn. 
Can we regard these people as apostates and thus put them to death?

Answer:

Praise be to Allaah.  

Firstly: 

The Muslim should not incline more towards one scholarly opinion rather than another just because it is in accordance with his whims and desires or his reasoning. Rather he has to accept the ruling based on evidence from the Qur’aan and Sunnah. It is essential to put the texts and rulings of sharee’ah before all else. 

Secondly: 

Apostasy (riddah) and going out of Islam are things that may be done in the heart, on the tongue or in one's actions. 

Apostasy may take place in the heart, such as disbelieving in Allaah, or believing that there is another creator alongside Allaah, or hating Allaah or His Messenger (peace and blessings of Allaah be upon him). 

Apostasy may take the form of words spoken on the tongue, such as defaming Allaah or the Messenger of Allaah (peace and blessings of Allaah be upon him). 

Or apostasy may take the form of outward physical actions, such as prostrating to an idol, mistreating the Mus-haf, or not praying.   

The apostate (murtadd) is worse than one who is a kaafir in the first place. 

Shaykh al-Islam Ibn Taymiyah said, refuting the pantheistic belief of the Baatinis: 

It is well known that the kaafir Tatars are better than these (Baatinis), because the latter are apostates from Islam, of the worst type of apostates. The apostate is worse than one who is a kaafir in the first place in many aspects. 

Majmoo’ al-Fataawa, 1/193 

Secondly: 

Not every Muslim who falls into kufr is a kaafir and apostate. There are reasons why a Muslim may be excused and not judged to be a kaafir, for example: ignorance, misunderstanding, being forced, and making mistakes. 

With regard to the first, a man may be ignorant of the ruling of Allaah, because he lives far from the Muslim lands, such as one who grows up in the desert or in a kaafir land, or has only recently come to Islam. This may include many of those Muslims who live in societies where ignorance prevails and knowledge is scarce. These are the ones concerning whom the questioner is confused as to whether they are to be judged as kaafirs and executed. 

The second reason is if a person interprets the ruling of Allaah in a manner not intended by the Lawgiver, such as those who blindly follow the people of bid’ah (innovation) in their misinterpretations, such as the Murji’ah, Mu’tazilah, Khawaarij and the like. 

The third reason is if an oppressor overwhelms a Muslim and will not let him go until he makes a blatant statement of kufr out loud in order to ward off the torture, when his heart is at ease with faith. 

The fourth is when words of kufr come to one's lips without meaning it. 

Not everyone who is ignorant about wudoo’ and prayer can be excused, when he seed the Muslims establishing prayer and praying regularly, and he can read and hear the verses on prayer. What is preventing him from praying or from asking about how it is done and what its essential conditions are? 

Fourthly: 

The apostate is not to be put to death immediately after he falls into apostasy, especially if his apostasy happens because of some doubt that arose. Rather he should be asked to repent and he should be offered the opportunity to return to Islam and resolve his doubts, if he has any doubts. Then if he persists in his apostasy after that, he is to be put to death. 

Ibn Qudaamah said in al-Mughni, 9/18: 

The apostate should not be put to death until he has been asked to repent three times. This is the view of the majority of scholars, including ‘Umar, ‘Ali, ‘Ata’, al-Nakhaii, Maalik, al-Thawri, al-Awzaa’i, Ishaaq and others. Because apostasy comes about because of doubt, and cannot be dispelled in an instant. Time should be allowed for the person to rethink the matter, and the best length of time is three days. 

End quote. 

The saheeh Sunnah indicates that it is essential to put the apostate to death. 

Al-Bukhaari (6922) narrated that Ibn ‘Abbaas said: The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Whoever changes his religion, put him to death.” 

Al-Bukhaari (6484) and Muslim (1676) narrated that ‘Abd-Allaah ibn Mas’ood said: The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “It is not permissible to shed the blood of a Muslim who bears witness that there is no god except Allaah and that I am the Messenger of Allaah, except in one of three cases: a soul for a soul (i.e., in the case of murder); a previously-married person who commits zina; and one who leaves his religion and separates from the main body of the Muslims.” 

The general meaning of these ahaadeeth indicates that it is essential to put the apostate to death whether he is waging war on Islam (muhaarib) or not. 

The view that the apostate who is to be put to death is the one who is waging war on Islam (muhaarib) only is contrary to these ahaadeeth. The Prophet (peace and blessings of Allaah be upon him) said that the reason why he should be put to death is his apostasy, not his waging war against Islam. 

Undoubtedly some kinds of apostasy are more abhorrent than others, and the apostasy of one who wages war against Islam is more abhorrent than that of anyone else. Hence some of the scholars differentiated between them, and said that it is not essential to ask the muhaarib to repent or to accept his repentance; rather he should be put to death even if he repents, whereas the repentance of one who is not a muhaarib should be accepted and he should not be put to death. This is the view favoured by Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him). 

He said: 

Apostasy is of two types: ordinary apostasy and extreme apostasy, for which execution is prescribed. In both cases there is evidence that it is essential to execute the apostate, but the evidence indicating that the sentence of death may be waived if the person repents does not apply to both types of apostasy. Rather the evidence indicates that that is allowed only in the first case – i.e., ordinary apostasy – as will be clear to anyone who studies the evidence that speaks about accepting the repentance of the apostate. In the second type – i.e., extreme apostasy – the obligation to put the apostate to death still stands, and there is no text or scholarly consensus to indicate that the death sentence may be waived. The two cases are quite different and there is no comparison between them. It does not say in the Qur’aan or Sunnah, or according to scholarly consensus, that everyone who apostatizes in word or deed may be spared the death sentence if he repents after he is a captured and tried. Rather the Qur’aan and Sunnah, and scholarly consensus, differentiate between the different kinds of apostates. 

Al-Saarim al-Maslool, 3/696 

Al-Hallaaj was one of the most well known heretics who were put to death without being asked to repent. Al-Qaadi ‘Iyaad said:  

The Maaliki fuqaha’ of Baghdad at the time of al-Muqtadir were unanimously agreed that al-Hallaaj should be killed and crucified because of his claim to divinity and his belief in incarnation, and his saying “I am al-Haqq [God],” even though he outwardly appeared to adhere to sharee’ah, and they did not accept his repentance. 

Al-Shifa bi Ta’reef Huqooq al-Mustafa, 2/1091. 

Based on this, it is clear that what the questioner says about the apostate not being killed unless he is waging war on Islam is mistaken, and the differentiation that we have quoted from Shaykh al-Islam Ibn Taymiyah may dispel any confusion and make the matter clearer. 

Waging war against Islam is not limited only to fighting with weapons, rather it may be done verbally such as defaming Islam or the Prophet (peace and blessings of Allaah be upon him), or attacking the Qur’aan, and so on. Waging verbal war against Islam may be worse than waging war against it with weapons in some cases. 

Shaykh al-Islam Ibn Taymiyah said: 

Muhaarabah (waging war against Islam) is of two types: physical and verbal. Waging war verbally against Islam may be worse than waging war physically – as stated above – hence the Prophet (peace and blessings of Allaah be upon him) used to kill those who waged war against Islam verbally, whilst letting off some of those who waged war against Islam physically. This ruling is to be applied more strictly after the death of the Prophet (peace and blessings of Allaah be upon him). Mischief may be caused by physical action or by words, but the damage caused by words is many times greater than that caused by physical action; and the goodness achieved by words in reforming may be many times greater than that achieved by physical action. It is proven that waging war against Allaah and His Messenger (peace and blessings of Allaah be upon him) verbally is worse and the efforts on earth to undermine religion by verbal means is more effective. 

Al-Saarim al-Maslool, 3/735 

Fifthly: 

With regard to not praying, the correct view is that the one who does not pray is a kaafir and an apostate. See question number. 5208

And Allaah knows best.

Islam QA

 

Question:

[Q]: What is the ruling of one who died and did not pray [during his lifetime], though his parents are Muslim? And, how should he be treated with respect to the washing [of his body], shrouding, and prayer over him, burial, supplication, and asking for mercy upon him?

Answer:

Any responsible adult, who dies [knowing the Islamic ruling concerning prayer] and did not pray, is a disbeliever. He is not washed or prayed over, nor is he buried in the Muslim cemetery. His [Muslim] relatives do not inherit from him. Rather, his wealth is for the Muslim's state treasury, according to the strongest opinion amongst the scholars. [This is] based on the authentic hadeeth [in which the] Prophet [salallahu alaiyhi wasallam] stated: Between a man and shirk [associating partners with Allah] and kufr [disbelief] there stands his abandonment of the prayer. This was reported by Imaam Muslim in his Saheeh. The Prophet [salallahu 'alaiyhi wasallam] also stated: The vow [religious commitment] that is between us and them [the hypocrites] is the prayer. He that abandons it has committed disbelief. This was reported by Ahmad and the compilers of the sunan with an authentic chain from the hadeeth of Buraydaah radiallaahu 'anhu.

And, 'Abdullah ibn Shaqeeq al-'Uqayli, the noble follower, may Allah's mercy be upon him, stated: The companions of the Prophet [salallahu 'alaiyhi wasallaam] did not consider abandonment on anything as disbelief, except [the abandonment of] the prayer. And, the ahadeeth and reports with this connotation are many.

This is regarding the one who abandoned [prayer] due to laziness and who did not denies it as being obligatory. And, for the one who doesn't accept it as being compulsory, then he is a disbeliever, who apostated from Islam, according to all of the people of knowledge.

We beseech Allah to set aright the affairs of the Muslims and to [lead them to] pursue the straight path, for He is the All-Hearing Responder.

Shaykh `Abdul-`Azeez Bin Baz Published in the Arabic magazine, issue #187 in the month of Sha'baan, 1413 Hijr

Translated by Fatimah Daragharbi
Majmoo' al-Fataawa of Shaykh Bin Baaz

Question: I have read in another Islamic website that you shouldn't play cards even if you aren't gambling. If this is true, I don't understand why, if you are just playing for the fun of it. If you would please explain.
Jazaka Allah Khairan.

Wasting of time in something which has no benefit in this life nor in the hereafter.

This game of cards is based on the idea of gambling, and it resembles playing with dice, which is clearly prohibited in Islaam, as related in the authentic hadeeth of the Prophet :

"Whoever plays with dice, would (resemble) one who has tainted his hand with the flesh and blood of a pig," narrated by Muslim (2260).

The playing cards include pictures of creations with a soul (the Jack and Queen …).

The rancor, enmity, bitterness, and/or ill-feeling which may occur between the players (shahnaa' wa-baghdaa').

The game promotes cheating, deception, and trickery (ghish wa-tahaayul).

It distracts from the worship of Allaah, and from salaat. Even if one performs salaat on time, and with the congregation in the Masjid, how would he escape the hadeeth of the Prophet :

"Everything other than remembering Allah is (considered) wasteful play except four: a man humoring his wife, a man training his horse, a man walking between targets (learning archery), and man learning swimming," narrated by An-Nasaa'i and authenticated by Al-Albaani (Sahih Al-Jami' 4534).

Sheikh Muhammed Salih Al-Munajjid

What is the ruling on a woman leading men in Jumu’ah and other prayers?

 

Praise be to Allah.

Firstly: 

Allaah has singled out men for some virtues and rulings, and He has singled out women for other virtues and rulings. It is not permissible for any man to wish for that which has been granted to women only, nor is it permissible for any woman to wish for that which has been granted to men. This kind of wishing is tantamount to objecting to the laws and rulings of Allaah. 

Allaah says (interpretation of the meaning): 

“And wish not for the things in which Allaah has made some of you to excel others. For men there is reward for what they have earned, (and likewise) for women there is reward for what they have earned, and ask Allaah of His Bounty. Surely, Allaah is Ever All‑Knower of everything”

[al-Nisa’ 4:32] 

al-Sa’di (may Allaah have mercy on him) said: 

Allaah forbids the believers to wish for that with which Allaah has favoured others, whether that is in things that are possible or things that are impossible. Women should not wish for the things that have been bestowed uniquely upon men, by which Allaah has favoured them over women, and no poor person or person who has shortcomings should merely wish for the position of one who is rich or perfect, because this is the essence of destructive envy (hasad)… and because that implies displeasure with the decree of Allaah. End quote. 

One of the things for which Allaah has singled out men is that the acts of worship which require physical strength, such as jihad, or require a position of leadership such as leading the prayers, etc., are only for men, and women have nothing to do with them. 

This is indicated by a great deal of evidence, such as the following: 

1 – Allaah says (interpretation of the meaning): 

“Men are the protectors and maintainers of women, because Allaah has made one of them to excel the other, and because they spend (to support them) from their means”

[al-Nisa’ 4:34] 

al-Shaafa’i said in al-Umm (1/191): 

If a woman leads men, women and boys in prayer, then the prayer of the women is valid and the prayer of the men and boys is invalid, because Allaah has given men the role of protectors and maintainers of women, and He has not allowed them to be in charge, so it is not permissible for a woman to lead a man in prayer under any circumstances, ever. End quote.

 Al-Sa’di (may Allaah have mercy on him) said: 

Men have been favoured over women in numerous ways, such as the fact that positions of leadership and Prophethood are limited to men only, and many acts of worship, such as jihad and leading the Eid prayers and Jumu’ah prayers, are for men only, and Allaah has favoured them with intellect, wisdom, patience and toughness which women do not share.  End quote. 

2 – Allaah says (interpretation of the meaning): 

“And they (women) have rights (over their husbands as regards living expenses) similar (to those of their husbands) over them (as regards obedience and respect) to what is reasonable, but men have a degree (of responsibility) over them. And Allaah is All-Mighty, All-Wise”

[al-Baqarah 2:228] 

al-Sa’di (may Allaah have mercy on him) said: 

“but men have a degree over them” means higher status and leadership, and more rights over them, as Allaah says, “Men are the protectors and maintainers of women”. The position of Prophet and judge, leading the prayers and leading the state, and all positions of authority, are restricted to men. End quote. 

3 – al-Bukhaari (4425) narrated that Abu Bakrah (may Allaah be pleased with him) said: The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “No people will ever succeed who appoint a woman as their leader.” 

This hadeeth indicates that it is not permissible for a woman to hold a position of public authority, and leading the prayers is a position of public authority. 

4 – Abu Dawood (576) and Ahmad (5445) narrated that Ibn ‘Umar (may Allaah be pleased with him) said: The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Do not prevent your women from attending the mosques, although their houses are better for them.” Classed as saheeh by al-Albaani in Sunan Abi Dawood. 

It says in ‘Awn al-Ma’bood: 

“although their houses are better for them” means: their praying in their houses is better for them than their praying in the mosques, if only they knew, but they do not know that, and they ask for permission to go out to the mosques, because they think that the reward for them in the mosque is greater. The reason why their praying at home is better is that there is no danger of fitnah. That was confirmed after women began to wear adornments. End quote. 

5 – Muslim (440) narrated that Abu Hurayrah (may Allaah be pleased with him) said: The Messenger of Allaah (peace and blessings of Allaah be upon him) said: “The best rows for men are those are the front and the worst are those at the back, and the best rows for women are those at the back and the worst are those at the front.” 

Al-Nawawi said: 

The phrase “the rows for men” is to be understood in general terms as meaning that the best of them are those that are at the front, and the worst are those at the back, and that is always the case. As for the rows for women, what is meant in this hadeeth is the rows of women who are praying with men. But if women are praying on their own and not with men, then they are like men and the best rows are those at the front and the worst are those at the back. What is meant by the worst rows for both men and women is that they bring less reward, are lower in status and are further removed from what is required by sharee’ah. And the best rows are the opposite of that. The virtue of the last row for women who are praying with men is that they are farther away from mixing with men or seeing them or becoming attracted to them when seeing their movements or hearing their words and so on. The first rows are condemned for the opposite of that. And Allaah knows best. End quote. 

If a woman is enjoined to pray in her house and keep away from men, and the worst rows for women are the front rows, because they are closer to the men, then how can it be befitting for Islam to allow a woman to pray as an imam, leading men in prayer, when it enjoins her to keep away from men? 

6 – al-Bukhaari (684) and Muslim (421) narrated from Sahl ibn Sa’d al-Saa’idi that the Messenger of Allaah (peace and blessings of Allaah be upon him) said, “Whoever notices anything amiss during the prayer, let him say tasbeeh, for if he does so it will be noticed; and clapping is only for women.” 

al-Haafiz said: 

It is as if women are not allowed to say tasbeeh because they are enjoined to keep their voices low in prayer at all times, because of the fear of fitnah. End quote. 

If women are forbidden to alert the imam by speaking if he makes a mistake, and should clap instead, so that they will not raise their voice in the presence of men, then how can it be allowed for a woman to lead them in prayer and deliver a khutbah to them? 

7 – Muslim (658) narrated from Anas ibn Maalik that he prayed behind the Messenger (peace and blessings of Allaah be upon him) and with him was his grandmother and an orphan. He said: The orphan and I stood in a row behind him, and the old woman stood behind us. 

Al-Haafiz said: 

This shows that a woman should not stand in a row with a man. The basic reason is that there is the fear of fitnah because of her. End quote. 

If a woman should stand on her own behind the rows, and not stand in the same row as the men, how can she stand in front of them and lead them in prayer? 

It says in ‘Awn al-Ma’bood: 

This indicates that it is not permissible for a woman to lead men in prayer, because if she is not allowed to stand in the same row as them, it is less likely that she should be allowed to stand in front of them. End quote. 

8 – According to the actions of the Muslims throughout fourteen hundred years, no woman should be allowed to men in prayer. 

Badaa’i’ al-Sanaa’i’, 2/289 

Whoever goes against this is following a path other than that of the believers. Allaah says (interpretation of the meaning): 

“And whoever contradicts and opposes the Messenger (Muhammad) after the right path has been shown clearly to him, and follows other than the believers’ way, We shall keep him in the path he has chosen, and burn him in Hell — what an evil destination!”

[al-Nisa’ 4:115] 

There follow some comments of the scholars: 

It says in al-Mawsoo’ah al-Fiqhiyyah (6/205): 

In order to lead men in prayers, it is essential that the imam be a male; it is not valid for a woman to lead men in prayers. The fuqaha’ are unanimously agreed on this matter. End quote. 

Ibn Hazm said in Maraatib al-Ijmaa’, p. 27 

They are unanimously agreed that a woman should not lead men in prayer when they know that she is a woman. If they do that then their prayer is invalid, according to scholarly consensus. End quote. 

It says in al-Muhalla (2/167): 

It is not permissible for a woman to lead a man or men in prayer. There is no difference of scholarly opinion on this point. Moreover the text states that a woman invalidates a man’s prayer if she walks in front of him… The ruling of the Prophet (peace and blessings of Allaah be upon him) is that she should definitely stand behind the man in prayer, and the imam must stand in front of the congregation or with one who is praying with him in the same row… From these texts it may be established that it is definitely invalid for a woman to lead a man or men in prayer. End quote. 

Al-Nawawi (4/152) said in al-Majmoo (4/152): 

Our companions are agreed that it is not permissible for an adult man or a boy to pray behind a woman… the prohibition on a woman leading men in prayer applies equally to obligatory prayers, Taraweeh and all supererogatory prayers. This is our view and the view of all the scholars from the earlier and later generations – may Allaah have mercy on them. Al-Bayhaqi narrated this from the seven fuqaha’, the Taabi’i fuqaha’ of Madeenah. It is also the view of Maalik, Abu Haneefah, Sufyaan, Ahmad and Dawood…. 

Moreover if a woman leads a man or men in prayer, the men’s prayer is invalid, but her prayer and the prayer of any women who pray behind her is valid in all prayers, except if she leads them in Jumu’ah prayer, in which case there are two views, the most sound of which is that her prayer does not count. The second view is that it does count and it takes the place of Zuhr. This is the view of Shaykh Abu Haamid, but it does not amount to anything. And Allaah knows best. 

In al-Insaaf (2/265) it says: 

“ A woman’s leading a man in prayer is not valid” –  

This is our view in general – meaning the madhhab of Imam Ahmad – it says in al-Mustaw’ib: This is the correct view. End quote. 

The Maaliki view concerning this matter is the strictest of all. They do not allow a woman to lead even other women in prayer, and they regard maleness as an essential condition for leading the prayer in all cases. In al-Fawaakih al-Dawaani it says (1/204): 

Note that there are conditions for leading the prayer to be valid and complete. The conditions of it being valid are thirteen, the first of which is being male; it is not valid for a woman or an effeminate man to lead the prayer. The prayer of the one who prays behind a woman is invalid but not the prayer of the female who led the prayer. End quote. 

Shaykh Ibn Baaz (may Allaah have mercy on him) was asked about a man who prayed ‘Asr behind his wife. He replied: 

It is not permissible for a woman to lead a man in prayer and his prayer offered behind her is not valid, because of a great deal of evidence to that effect, and the man mentioned must repeat his prayer.” 

Majmoo’ Fataawa Ibn Baaz, 12/130 

Secondly: 

With regard to the evidence presented by those who refer to the reports which say that the Prophet (peace and blessings of Allaah be upon him) gave Umm Waraqah permission to led her household in prayer (narrated by Abu Dawood, 591), they say that she used to lead the people of her house in prayer, among whom were men and boys. The scholars have given several answers to that: 

1-     The hadeeth is da’eef (weak). 

Al-Haafiz said in al-Talkhees (p. 121): Its isnaad includes ‘Abd al-Rahmaan ibn Khallaad who is unknown. End quote. 

It says in al-Muntaqa Sharh al-Muwatta’: 

This hadeeth is one to which no attention should be paid. End quote. 

2-     Even if the hadeeth is saheeh, what it means is that she used to lead the women of her household in prayer. 

3-     That was something that applied only to Umm Waraqah, and it is not prescribed for anyone else. 

4-     Some scholars quote it as evidence that a woman may lead a man in prayer, but only in cases of necessity, and what is meant by necessity is when there is no man who can recite al-Faatihah properly. Haashiyat Ibn Qaasim, 2/313 

See al-Mughni. 3/33.

When a man commits zina with a woman, the tribe offers compensation to the girl’s family in the form of a payment, the amount of which is determined by tribal custom. It may be noted that the tribe helps the man to pay this money. What is the ruling on helping to pay this money if one belongs to the tribe of the one who did it? What is the ruling on taking this money if one belongs to the tribe of the girl? Please note that this town is ruled by a Christian and he does not rule it in accordance with that which Allaah has revealed (sharee’ah), hence the tribes resorted to tribal laws, which also involve ruling by something other than that which Allaah has revealed.

Praise is to Allaah.

Firstly: 

With regard to this financial compensation, there may be two scenarios: 

1 – When it is paid only where a woman is forced into zina (rape), where the rapist is made to pay the mahr to his victim, or to pay the mahr along with compensation for loss of virginity – if she was a virgin – according to those who say that this is required. The compensation for loss of virginity is the difference between the mahr of a virgin and the mahr of one who was previously married. 

This money must be paid by the rapist, and the hadd punishment must be carried out on him, and it must be given to the victim if it is proven that she was forced into it. 

If that is the case, then there is no problem with it, rather this is the ruling of sharee’ah even if it is in accordance with customs. 

If we assume that they are unable to carry out the hadd punishment, but they can force the rapist to pay the mahr to his victim, then this is acceptable, because if it is not possible to do everything, we should do as much as we can do. Allaah says (interpretation of the meaning): 

“So keep your duty to Allaah and fear Him as much as you can”

[al-Taghaabun 64:16] 

With regard to obliging the tribe to pay the mahr or help in doing so, there is no basis for that. Rather it must be paid from the wealth of the rapist, as stated above. Helping him to pay it means letting the rapist off lightly and encouraging rape. We will discuss the difference between the mahr and the compensation (for loss of virginity) below.                         

2 – If that is the procedure that is followed in all cases of zina, with no distinction between cases where the woman is forced into it (rape) and cases where she did it willingly, and the tribe is obliged to help the zaani pay this compensation, and that is regarded as a general ruling that all the tribes refer to, this is like a system of prostitution. The Prophet (peace and blessings of Allaah be upon him) said:  

“The price of a dog is evil, and the earnings of a prostitute are evil and the earnings of a cupper are evil.” Narrated by Muslim (1568). 

And he said: “The price of a dog, the fee of a soothsayer and the earnings of a prostitute are not permissible.” Narrated by al-Nasaa’i (4293). 

It is obvious that this tribal law, which is known as saloom, is the ruling of Jaahiliyyah which is it is not permissible to judge by or to refer to for judgement, or to help with, because Allaah says (interpretation of the meaning): 

“And so judge (you O Muhammad) among them by what Allaah has revealed and follow not their vain desires, but beware of them lest they turn you (O Muhammad) far away from some of that which Allaah has sent down to you. And if they turn away, then know that Allaah’s Will is to punish them for some sins of theirs. And truly, most of men are Faasiqoon (rebellious and disobedient to Allaah).

50. Do they then seek the judgement of (the days of) Ignorance? And who is better in judgement than Allaah for a people who have firm Faith”

[al-Maa'idah 5:49, 50] 

“And whosoever does not judge by what Allaah has revealed, such are the Kaafiroon (i.e. disbelievers — of a lesser degree as they do not act on Allaah’s Laws)”

[al-Maa’idah 5:44] 

“Have you not seen those (hypocrites) who claim that they believe in that which has been sent down to you, and that which was sent down before you, and they wish to go for judgement (in their disputes) to the Taaghoot (false judges) while they have been ordered to reject them. But Shaytaan (Satan) wishes to lead them far astray”

[al-Nisa’ 4:60] 

“But no, by your Lord, they can have no Faith, until they make you (O Muhammad) judge in all disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission”
[al-Nisa’ 4:65] 

And there are other verses which indicate that it is obligatory to refer for judgement to the laws of Allaah and to reject the rulings of Jaahiliyyah that go against them. Allaah has decreed and prescribed that the zaani should be flogged if he is a virgin and stoned if he is a non-virgin, and this applies to both men and women. Every ruling that goes against this is a ruling of jaahiliyyah, which must be rejected and we must strive to abolish it. 

The scholars stated that referring to Bedouin laws and tribal customs that go against sharee’ah is kufr. 

Shaykh Muhammad ibn Ibraaheem (may Allaah have mercy on him) said: The sixth (type of major kufr with regard to referring to laws for judgement) is the law by which many of the heads of Bedouin clans and tribes rule, based on the sayings of their forefathers and their customs which they call their saloom, which they inherited from them and they judge by it and refer to it for judgement in the event of disputes, based on the rulings of Jaahiliyyah or turning away from the rulings of Allaah and His Messenger. There is no power and no strength except with Allaah. End quote from the essay, Tahkeem al-Qawaaneen. 

Shaykh ‘Abd al-‘Azeez ibn Baaz (may Allaah have mercy on him) said in an essay entitled “The ruling on referring for judgement to tribal customs and traditions”: 

From ‘Abd al-‘Azeez ibn Baaz to whoever among the Muslims reads it: may Allaah help me and them to find out the truth and follow it. 

Peace be upon you and the mercy of Allaah and His blessings… 

The reason for this is to answer some questions that have been asked by one of our sincere brothers in the Kingdom. He says that in his tribe, and in some other tribes, there are bad tribal customs for which Allaah has not sent down any authority, such as not referring for judgement to the Book of Allaah and the Sunnah of His Prophet (peace and blessings of Allaah be upon him), and turning instead to tribal customs and ignorant traditions. 

One of these is the concealment of testimony and not bearing witness out of tribal loyalty, or bearing false witness out of tribal loyalty also. And there are other reasons that may lead some people to go against sharee’ah. 

Because of our duty to be sincere towards Allaah and His slaves, I say – and Allaah is the source of strength: 

The Muslims are obliged to refer for judgement to the Book of Allaah and the Sunnah of His Prophet (peace and blessings of Allaah be upon him) in all things, and not to man-made laws or tribal customs. Allaah says (interpretation of the meaning): 

“Have you not seen those (hypocrites) who claim that they believe in that which has been sent down to you, and that which was sent down before you, and they wish to go for judgement (in their disputes) to the Taaghoot (false judges) while they have been ordered to reject them. But Shaytaan (Satan) wishes to lead them far astray”

[al-Nisa’ 4:60] 

“Do they then seek the judgement of (the days of) Ignorance? And who is better in judgement than Allaah for a people who have firm Faith”

[al-Maa'idah 5:50] 

No Muslim should give precedence to the rule of anyone other than Allaah over the rule of Allaah and His Messenger, no matter who he is. Just as worship is for Allaah alone, so too is the judgement or decision, as He says (Interpretation of the meaning): 

“The decision [hukm] is only for Allaah,”

[al-An’aam 6:57]

Referring for judgement to anything other than the Book of Allaah or the Sunnah of His Messenger (peace and blessings of Allaah be upon him) is one of the greatest of evils and the most abhorrent of bad deeds, but as to whether the one who does that is a kaafir, that is subject to further discussion. Allaah says (interpretation of the meaning): 

“But no, by your Lord, they can have no Faith, until they make you (O Muhammad) judge in all disputes between them, and find in themselves no resistance against your decisions, and accept (them) with full submission”
[al-Nisa’ 4:65] 

So there is no faith for the one who does not refer for judgement to Allaah and His Messenger (peace and blessings of Allaah be upon him) with regard to the fundamentals of religion and its minor issues and with regard to disputes concerning rights and duties. Whoever refers for judgement to anything other than Allaah and His Messenger has referred for judgement to the Taghoot (false judges). 

Based on this, the tribal Shaykhs must not judge among the people according to tribal customs that have no basis in Islam and for which Allaah has not sent down any authority. Rather they must refer any disputes among their tribes to the sharee’ah courts. There is no reason why they should reconcile between disputants in ways that do not go against sharee’ah, so long as they consent to that and there is no compulsion, because the Prophet (peace and blessings of Allaah be upon him) said: “Reconciliation between Muslims is permissible, except a reconciliation that forbids something that is permitted or permits something that is forbidden.” And all the tribes should not agree to anything but the rule of Allaah and His Messenger … End quote from Majmoo’ Fataawa wa Maqaalaat al-Shaykh IbnBaaz (5/142). 

The Standing Committee for Issuing Fatwas was asked: What is the ruling if two men argue and refer for judgement to customary laws, and each of them chooses someone they think is of good character, and they agree to whoever among the tribal Shaykhs they choose to judge between them, and they sit before him and each of them states his case against the other. If it is a simple case, he rules usually rules that the one who is in the wrong should slaughter an animal and invite his opponent to the feast; and if it is a serious case he gives a judgement of al-janbiyyah, which in the past meant that they would strike him on the head with a sharp instrument until his blood flowed. But nowadays they pay the janbiyyah in money and they call this reconciliation. This is something that is widespread among the tribes and they call it a madhhab, and if you do not approve of what they do, they call you qaati’ al-madhhab (one who has forsaken the madhhab). What is the ruling on this? 

Answer: The Muslims must refer for judgement to Islamic sharee’ah, not to tribal laws. What you have mentioned is not a reconciliation in the true sense, rather it is referring for judgement to customary principles. Hence they call it a madhhab, and they say of the one who does not agree with the ruling that he has forsaken the madhhab. Their calling it a reconciliation does not alter the fact that it is referring for judgement to Taghoot (false judges). The ruling that they stipulate, of slaughtering an animal or striking the head with a sharp instrument until the blood flows is not a shar’i ruling. 

Based on this, the tribal Shaykhs should not judge between people in this manner, and the Muslims should not refer to them for judgement, until they (the Shaykhs) turn away from that to Islamic laws. Today – praise be to Allaah – the authorities have appointed judges who judge between the people and resolve their disputes in accordance with the Book of Allaah and the Sunnah of His Messenger (peace and blessings of Allaah be upon him) and who solve their problems in ways that do not go against the laws of Allaah, may He be exalted. So there is no excuse for anyone to refer for judgement to false judges, after the appointment of scholars of Islam to whom they may refer for judgment and who judge in accordance with the law of Allaah. 

And Allaah is the Source of strength. May Allaah send blessings and peace upon our Prophet Muhammad and his family and companions. 

The Standing Committee for Academic Research and Issuing Fatwas. 

‘Abd-Allaah ibn Qa’ood, ‘Abd-Allaah ibn Ghadyaan, ‘Abd al-Razzaaq ‘Afeefi and ‘Abd al-‘Azeez ibn Baaz. End quote. 

As that is the case, it is not permissible for you to take part in his judgement or to pay the money or take it. Rather you must disavow yourself of that, and you must advise these people and explain to them the seriousness of what they are doing by passing judgements that are not in accordance with sharee’ah. They have no excuse for that, even if their governor is a Christian who does not apply the rulings of Allaah. They have to advise one another and strive to apply the rulings of sharee’ah as much as they can; whatever they are unable to apply, it is not permissible for them to invent rulings for it, no matter what interests they think may be served by that, otherwise they will be sinners who are introducing jaahili ways into Islam. 

Secondly: 

The majority of Maaliki, Shaafa’i and Hanbali fuqaha’ are of the view that if a woman is forced into zina (raped), then the rapist must pay a mahr equal to that of her peers. 

If she was a virgin, is she entitled to compensation for loss of virginity along with the mahr? 

Some of the fuqaha’ are of that view, and it was narrated from Ahmad (may Allaah have mercy on him), but the well known view of the Hanbalis is that compensation for loss of virginity is not required, and the one who is forced into zina can only take a mahr equal to that of her peers. The Maalikis also pointed out that this mahr is not to be paid collectively by the male relatives of the rapist, because zina is a deliberate action, it is not something that can happen by mistake.  

The Hanafis differed from that and did not impose a mahr for a woman who is forced into zina, whether she was a virgin or not. 

This was also narrated from Ahmad (may Allaah have mercy on him), and was the view favoured by Shaykh al-Islam Ibn Taymiyah, who said concerning the mahr:  it is khabeeth (evil). 

Thirdly: 

If he forced her to commit zina and he destroyed the barrier between the urethra and vagina, then he must pay the mahr and also compensation, but there was a difference of opinion as to the amount. The Hanafis and Hanbalis say that it is one-third of the diyah, and the Shaafa’is say that it is the full diyah. The Hanafis agree with them if he destroys the barrier between the urethra and vagina and she can no longer control her urine.  

See al-Mabsoot (9/53), al-Muntaqa by al-Baaji (7/77), al-Taaj wa’l-Ikleel (8/342), Mughni al-Muhtaaj (4/75), al-Mughni (7/209, 8/373), al-Insaaf (8/306-308), al-Mawsoo’ah al-Fiqhiyyah (5/297, 21/95). 

Conclusion: The mahr which is paid to the woman who is forced into zina (raped), and the mahr and compensation for loss of virginity which is paid to a virgin who is forced into zina, must be paid from the wealth of the zaani and not by his male relatives, and it must go to the woman who was forced into zina, not to her relatives. As for the woman who willingly commits zina, she is not entitled to anything. 

All of this comes after zina has been proven and the hadd punishment has been carried out. This makes clear the difference between what is narrated in sharee’ah and the ruling of tribal customs. 

And Allaah knows best.