If the decisevely divorced wife is an adolescent and gives birth to a child in less than nine months period,the relation gets established;otherwise does not.According to Abu Yusuf the relation gets established as long as it is less than two years.

Any woman whose husband passed away,if she gives birth to a child in less tahn two years period,if the wife is an adolescent,then the least period is ten months and ten days;otherwise no reletion is established.

The fact of giving birth by a woman who was in waiting period does not get established except with the testimony of two male ,or one male and two female witnesses.According to two imams the testimony of one female witness is sufficient.

If the pregnancy is clear or the husband declares that,then the relation gets established solely by her word.According to two imams,at least a testimony of a woman is necessary.

If she claims the relation after  the death of  the husband and the heirs approve it,then  the relation becomes valid in terms of inheritance and relation.This is the preferred view.

Any one who marries a woman and she gives birth to a child in six or more months period,the relation gets established for him,if he confess the birth or keeps silent.If he rejeccts then  it is established by the testimony of a woman;if he rejects,then the procedure of li`an will work.

If it is less than six months,the relation will not be established.

If she alleges the marriage for six months,but he alleges for 156 / less than six months,her word with oath is to be taken; according to Abu Hanifa oath is not required.

If ha suspends her divorce to birth giving and a woman testifies that there is a birth giving,she will not be divorced;the two imams are of the opposing opinion.If the hudband confesses about pregnancy,tehn the wife becomes divorced by her word only.According to two imams the testimony of a woman is a must.

If any one marries to a she-slave,then divorces her,then she buys her and she gives birth to a child in a period less than six months from the time of her buying,the relation gets established;otherwise does not.

If he says her she-slave "if you have any fetus in your womb,it is from me",and if a woman testifies for the birth giving,then she becomes umm walad.

If he says about a boy "he is my son" and after taht he dies,and mother of the boy says  "I am his wife",the boy is considered his son;and both of them inherit him.If the freedom of the woman is not known and the heirs say "you are umm walad",then there is no inheritance for her.

          Chapter on taking care of the child (al-Hidanah)

The mother of a child has the  the strongest right to look after her child before/after any kind of seperation;then mother's mother,no matter how high ascends.Then father's mother,then the child's sister from commkon parents,then sister from mother side only,the sister from father side only,then mother's sister with the various alternatives as it is in the case of sister;then father's sister also with the various alternatives.

The daughters of sisters are better than the daughters of a brother.The latters are  preferred to the father's sisters.


Any woman who marries to some man who is not her relative,looses herright contrary to who marries to her relative,such as a mother marries to the brother of the father of the  child,or a grand mother who marries to the child's grandfather.

And if the marriage gets void,then the right comes back.

157 / Her word is to be taken regarding the the rejection of the husband.

A boy stays with them until he becomes able to be no longer in need of any assistance,so that he  eats,drinks,puts on his clothes and cleans his private parts after the discharges in the restroom.He does all of these by himself.

It is measured by nine or seven years of age.

After that the father is to be forced to to take  the boy.

The girl is to stay with her mother or mother's mother until she menstruates;according to Muhammad until she reches to sexual desire,as it is the case when she is left with the female relatives other than mother and mother's mother.The fatwa will be like this,because of the corruption we have today.

Any one who has this right of taking care of the child,is not to be forced to use that right.

If there is no woman relative,then the the privilige goes to asabah relatives (male relatives) according to the ranks established in this regard.But no minor girl is to be given to a marriable asabah relative,such as son of the uncle (father's brother),or old patron of an emancipated she-slave.She is not to be given also to a shamless sinful person.

If more than one individuals are to meet in one point,then the most pious one,then the older one is to be preferred.

A sh-slave and umm walad have no right in taking care of the child before the emancipation.

A zimmi woman is much more privileged  to look after her muslim son as long as there is no fear of her imposing a nonislamic belief on him.

The father has no right of to take the child way to a travel distance until the child reaches the point he may take care of himself without getting any assistance.The mother also has no right of taking the child away to the travel distance,except to her country in which she was married to her husband,provided that country is not a non-islamic state (dar al-harb).

No one other than mother has this right.

But if the country of the mother is between the two cities or regions ib a locality that the father may contact with the child,and he may sleep in his home,then there is nothing wrong in the mother's taking him there.

It is also the same if she is transfered from  the country to the city,but not other way.

The child does not have any choice in this regard.

158 /     Chapter on looking after the relatives (al-Nafaqah)

Looking after the wife,clothing and dressing her and providing her an accomodation is the duty and resposibility of the husband,even when he is minor.No matter when whether she is non-believer dult or minor,as long as she submits herself to him in his home,or does not submit but either because of the right she has to get or he does not want.
 
An amount to be fixed for each month and delievered to her.


Dressing will be each six months once.It is to be efficiently decided without spending lavishly or being very mean.In both of the case their status is to be taken into consideration.If they are rich and at ease,then it will be like that,if they are in difficult situation,then it is to be a little economic way to be taken.If each one is different, then a middle way.It is said that only the husband's status is to be followed.

His word is to be listened to regarding the looking after her,but she has to carry the burden of the prove.

He is to take the cost of a servant,according to Abu Yusuf two servants, for her if he is rich.But if he is poor,no cost of a servant is to be taken on by him according to the most authentic view.

If some amount was fixed,then he  became rich and she challanged him for that,it is to be raised into the level of richness.If the case is just opposite,then the level of poor is to be considered.

No benefits of being cared of for a wife,who leaves his home disobeyingly without having any riht to do that,or being improsoned because of a debt,or being patient not being transfered to his home,or she is kidnapped,or being minor who is not to make sex with,or being on hajj journey without her husband.

159 / If she goes to hajj with him,then she is to get the expenses of being at home,not on journey.And she will not get any thing for the rent of horse (vehicle).

If she gets sick while she is in his home,she has the right of to have costs of living (nafaqah),but not if she gets sick in her home and transfered to his home while she is sick.

The judge does not seperate them because of his inability to provide the costs of living;she will be ordained to borrow the money which is to be paid by him.

No amount of costs of living is due except if it was decided by the judge or the two parties agreed upon the amount.

If one of the spouses dies,or one of them was divorced after the decree or after both of them agreed on before the her reception,then the responsiblity of looking after her is uplifted,except in the case she borrowed  by the order of the judge.

If he paid the cots of living in advance or fulfilled the resposibility of dressing her in advance,then one of them died before the completetion of that specific period,there is no way to revoke it;Imam Muhammad has aminority opinion.

If a slave marries wit the permission of his patron,her costs of living is due upon the husband (slave),he may be sold for that one after the other.But the slave may not be sold more than one for the debt other than  looking after the wife.

It is the duty of the husband to accomodate her in a home in which there is no one neither from his or from her family,including his child from a wife other than her.

It is sufficient for her if she has a seperate home with a lock on it.

The husband has the right of preventing her relatives from visiting her,even if the visitor is her child from another husband.But he  has no right to prevenmt her from seeing them or talking with them when they wish.


But the  true  view is that he will not prevent her from going 160 / out to visit her parents and to enter their home onece in the fridays and to visit others  once a year.

The costs of living for the wife and child and the parents of the missing husband is to be fixed according to the proprotions and rights each one of them enjoys from the property he left in a depository store or in a company (stocks etc.),or the credit owed by a debtor,provided all of them are acknowledged by related persons and also the wedlock between the couples are also acknowledged or the judge aproves it with an oath he gives  her testifying that the missing husband did not give her any amount of costs of living ang also takes a guarantor from her.

If they do not acjnowledge that she is his spouse and the judge does not regognize it,but she brings some proof,the judge does not give any decision on the costs of living (nafaqa).Also the same situation if the husband does not leave any propertyy and she brings evidences that she was his wife in order to let the judge fix an amount for costs of living and instruct her to get credit on behalf of him,the judge does not listen to her evidence.According to Zufar he is to listen her in order to fix the costs of living,not for proving the  wedlock between the couples;This is the view followed in practice and preferred today.

An amount of the costs of living and accomodation are due to the the divorced wife,even if  the divorce is decisive, also to the wife seperated for the reasons other than any disobidience to Allah (ma`siyyah),suchas choice of the emancipation orreaching the puberty or seperation on the ground of lack of matchness.

But no  this type of the  duty is due to a wife whose husband died and she is in waiting period or the wife who has been seperated because of a disobedience to Allah,such as converstion from Islam to  other religions or her kiss the son of her husband.

If a woman who is divorced three times converts from Islam to a religion, she looses her right to costs of living,but she will not loose her right if she allows to the son of her husband to kiss her.    

                                Chapter

The costs of living of a poor child is the resposibilty of the father alone,no body has to share it,as it is the situation in looknig after the parents anf the wife.The mother of the child is not to be forced to breastfeed him/her except in cases no one else 161 / is available.He has to hire a woman who will breastfeed the child in the mother's presence.

If he hires his wife or ex-wife who is in waiting period for a revokable divorce,he hires them for breastfeeding  the child,that is not permitted.There are two opinions (yes and no) regarding the wife who was divorced decisively and is observing the waiting period.But it is permossible after the waiting period is over.

The mother has the priority of the breastfeeding her child,if she does not ask any thing more than the others do.

If he hires his wife to breastfeed a child who is not from her,that is permissible.

The costs of living of an adult dauhter and a handicapped son is the duty of the father especially.This the official opinion to be given.Some said that thirds are the duty of the father and one third is the duty of the mother.

It is the duty of the well-to-do offspring,who are rich enought no to be eligible to take  charity (sadaqah),male and females are equal,to look after their ancestors.Here being nearer than the others and descendant of the persom related are important,not the the law of inheritance.

If he has a daughter a son of the son (grand son),his costs of living is the dutyyy of the daughter,though the inheritance is shared by both of them.

If the father has has a daughter of the daughter and a brother,then his costs of living is the responsiblity of the daughter's daughter,while the whole  inheritance from the father goes to the brother.

A well-to-do person is also responsible to look after any non-mariable relative if he/she is poor and minor or a female,or handicapped or blind or one who is not good in earning because he is retarded,or because he has to stick home or the student of the knowledge.

He may be forced to support them and it will be eavaluated by the saher of the inharitance.This is so much so that even if he has many sisters from the various his costs of living will be upon 162 / them according to fifths as they inherit  in that proportion.And here the eligibilty to inherit,not actully inherit,is necessary.

Any one who has an uncle (mother's brother) and son of the brother of the father,his costs of living is upon the uncle.     
The costs of living of the wife of the father are to be paid by his son.And also  the wife of the son is to be sustained by the father,if the son is minor or paralytic.

No costs of living are to be paid for any one  upon a poor person except for the wife or the child.Nothing is due to any one in case of differences in religion except to the wife and to the  ancestors and descendants.

A father may sell the property of his son for his own expenses due to him.But he may not sell a land belongs to his son or any material to pay off the debt his son ows to him,except the costs of living.

A mother is not allowed to sell any belongings of her son for hert sustenance.According to two imams the father has no right to sell any thing.The parents are not supposed to to compensate if they spend any thing from the property of their sons  they were keeping in their control.But the one who is entrusted any property of the son spends that fro the parents without being duly authorized by the decree of a judge,then he compensates and he has no right to appeal to them for reimbursement.

If the judge decides  regarding the costs of living for a person other than wife,and some times passed without any thing being spent,the duty of payying ther costs of living is lost,except in case the judge orders a loan to be taken on behalf of resposible person.

A patron is resposible to from paying off the costs of living of the slave;if he avoids to do his job,the slaves are entitled to earn for themselves.If the slaves do not have any way of earning for themselves,then the patron is to be forced to sell them.

For the  costs og living of the animals the owner is to be instructed from the point of religion only to pay off for them.

                      Book of Emancipation

Emancipation is a declaration of the religously recognized power (freedom) of the slave.

163 / Emancipation is possible  only if it is made by the owner who is free and eligible to take the responsiblities.It is to be done by the words having clear menaings even if he does not intend it.For example  "you are free,befreed,emancipated" or "I befreed you" or "I emancipated you" or "This my befreed slave" or "O my befreed slave" or "This she-slave is my befreed slave" or "o free!" or "o emancipated one!",provided the lastter two are not the names or titles given to them.

They are also to be considered emancipated,if he ascribes freedom to an orgaqn f the body of the slave which denotes and represents the whole body;such as "your head is free" and the others or his saying his she-slave "your vagina is free".

It is also a valid emancipation if he intends by the undercovered meanings (kinayah) of the words such as "I do not have any ownership on you" or "No way upon you" or "no slasery on you" or "you came out of my ownership" or "I left you to go" or

he said to his she-slave "I released you".

If he says her "I divorced you",she is not emancipated,even if he means it.It is also the same  regarding the usage of other words related with devorce haqving clear and not clear meanings.

If the patron says "you are for Allah",he is nor emancopated,except according to two imams.If he says "this is my son" or "this is my father",then the slave becomes free without any intention being required.It is also the same if he says "this is my mother".According to two imams he is not free if he is not naturally acceptable to be his son or his father or his mother.

If he says pointing a minor "this my grand father",he is not to be considered as free in the preferred opinion.

It is also not emancipated if he says "this is my brother" or pointing  his she-slave "this is my daughter".Also it is not emancipated by the sentences "I do not have any power upon you",even if he intends it or "o my daughter" or "o my brother" or "you are like a free person".It is said "he is free".

If the patron says "you are not,but free" he becomes free.

164 / Any one who gets the ownership of a non-marriable relative,he automatically becomes free,even when the owner is a minor or a mad person.

If a mukatab slave (a slave who has the permission of earning for himself and paying off for his freedom) buys his direct ancestors and descendants they are to be accepted as having kitabah relation to him.The two imams oppose this opinion. Any one who emancipates a slave for the sake of

Allah,the slave becomes free.It is also free if the patron bfrees him/her for the Satan or for the idol.this is effective even if it is a disobedience to Allah.It is the same if he is under the force or drunken.

If he suspends the freedom to the ownership or any condition,that is valid.If a slave from non-muslim state comes to us being muslim,he is automatically free,

The fetus is free with the fredom of the mother.But it valid if the fetus alone is emancipated.But the mother is not to be free automatically, if the fetus is befreed.

A child of a slave will follow her mother regarding the ownership,slavery,freedom,being mudabbar slave,umm walad,mukatab.

The child of a she-slave given birth to her patron is free,but her child from a husband who is not her patron,is the property of her patron.The child of a wife who was thought to be free and married to in that perception,but later on was discovered that she was slave,is free  against its value.

           Chapter on manumitting some part of the slave  

Any one who manumits  some  part  of his slave,that is  good.The slave  is to work for the other part to pay off.He is like a mukatab,except he is not going back to slavery again if he is unable to pay off.The two imams are of the opinion that he is totally emancipated and he needs not to work to pay off for his freedom.

If one of the co-owners of a slave emencipates his share,then the other co-owner has the right of emancipationg or making him mudabbar or mukatab or authorize him to work to pay off for the his share.Wala relation will go to both of the owners these cases.The emencipater may pay for the rest part of the slave,if he is well-to-do and he may appeal to the slave for reimbursement;wala' (some kind of relation which gives both parties to inherit each other and to pay for blood-meny etc.) in this case will be for him alone.The two imams said that there is 165 / nothing for other co-owner,but to pay  for the remaining part if he is well-to-do and let him  to work and pay for himself,if the co-owner is not well-to-do.And the emancipater has no right to tu appel to the slave for reimbursement,if he pays for it.Wala' relation in both of the cases goes to him.

If each one of the co-owners testifies that the co-owner manumitted his share,the slave in this case is authorized to work and earn to pay for both of the shares and wala' will be for both of them according to the proportions they own.The two imams say that  he will not work if the patrons are under the constraints of living (that is poor),but it is not for well-to-do ones.If one of them is  poor and the other is rich, the slave is to work to pay for the rich co-owner only and wala' will be suspended in all cases until each one of them decline from his share for his friend.

If one of the co-owners sispend the manumission to an act which wil take place next day and the other one suspends its manumission to lack od the same act in the next day,but the next day passes and no body knows what happened that day,half of the slave gets free and he works to pay for the other half to both of them,no matter whether the share-holders are rich or poor.According to two imams if the the two share-holders are well-to-do pepole,then he is not to work for payments,if they are not like that,then he is to earn to pay off the price of half according to Aby Yusuf,and for the full amount according to Muhammad.If the two are diffrent in terms of being rich and poor,the slave has to earn for payment of one fourt to the well-to-do owner according to Abu Yusuf and for one half according to Muhammad.

If both of the share-holders take oath on the freedom of the slave and the problem is as it id mentioned above,then no one manumits the slave.

Any one gets the ownership of his son together with a third person by the way of purchasing,or donation,or charity or will,then his share is emancipated and he has not to cmpensate for the other share.The other c0-owner has the choice of manumitting him or letting him earn for payment,no matter whether the co-sharer that he was his son or not.The two imams say that 166 / the father is to pay if he iswell-to-do. Inthe case of father's being under the  straints of livelihood,then the son is to work for payment.

The same rule and with the minority opinion is to be followed if a person suspends the freedom of a slave to purchasing some part of him,then he buys him sharing with another person,or buys half of his son from a person who owns him fully. If a third person purchases half of the son and then the father purchases,while he is well-t-do, the rest of him,then the father has to pay to the third person ot let the son earn and pay for himself.The two imams say,it will be paid off only.

If the two get the ownership by the way of inheritance,no payment is due at all as unanimously accepted.

A slave belongsto three well-to-do persons,oneofthem makes tadbir of his share and the other one manumits his share,in this case the onewho keeps silence has to pay to theone whomakes tadbir and and the one who makes tadbir has to pay to the manumitter one third of the price of the slave having his tadbir.But he will not get back what he already paid for.Two thirds of wala' will go to one who made tadbir and one third to one who manumitted him.The two imams say that the one who makes tadbid has to recompense to other two share-holders,even if he is  poor.All of wala' goes to him.

The price of a mudabbar slave is two thirds of his vakue as a fullfledged slave.

If one of the co-owners say the other "she-slave is your umm walad",but he denies it,then she has to serve him every other day and the two imams are of the opinion that the denier has the choice of lettin her work to pay his share,if he wishes and she becomes free.

And umm walad is not valuable property (mal mutaqawwim) in terms of economy.So a rich share-holder who manumits his share of a umm walad is not supposed to recompense it;acoording to two imamms she is economically valuable property (mal mutaqawwim),so the rich is to pay  the share of the other share-holder.

       Chapter on manumitting non-specified part of the slave  

A perso has three slaves.He said in healty days two of them being present with him "one of you is free",then one of the went out and the other entered,then he repeated his words once more,then he passed away without furtehr clarification,in this case three 167 / fourths of the slave who stayed in the room, half of the one who went out and also one half the slave who entered are freed,according to Muhammad  one fourth of the entereing slave is manumitted.

If he says, while he is sick, the same words and the inheritants do not accept it,then the slave is considered seven parts as the shares of the manumission;from the staying slave three shares are manumitted,but he will work to pay for the rest four shares,and each one of the rest are two shares freed and has tearn for the rest five shares.

According to Abu Yusuf each slave is to be considered six shares as the shares of the freedom in his view;the three shares of the one who stayed inside are free and he is to earn for payments of the rest three shares.Two shares of the slave who went out are free and he is to work for the rest four.One share of the one who entered is free and he will work to payy for the rest five shares.

If some one divorces his wives in the same way before he goes in unto them and he dies after that without making any further remarks, three eightths of the dowry of the wife who stayed inside are are lost,one fourth of the dowry of the wife who left is also lost and one eightth of the dowry of the entering wife is also lost.This is unanimously accepted and preferred view.

Selling is a statement in the non-specified manumission.Offering for sale,death,manumission,making tadbir,asking to give birth,donating and giving as charity,both of them being received by the receiver, these are all considered as statements. But having sex is not any kind of statement in the non-specified manumission;the two imams are of the minority opinion.

In a non-specified divorce the sexual intercource and death are considered as statements.If he say her she-slave "the first child you will deliver as baby boy,you are free",she gave birth to a boy and a girl,which is the first is not known,and the boy is 168 / also slave and halves of the each one of the mother and the baby girl are freed.   


There is no need of filing a suit and claiming  for a valid testimony on the divorce and the manumission of the specific she-slave.But they are necessar in the manumission of the slave and non-specified she-slave.The two imams oppose this view.

If the two persons testify about the manumission of one of the two he-slaves and one of the two she-slaves,it will not be accepted but in the will;according to two imams it is accepted.

If the two persons testify about the divorce of the one of the wives,that will be unanimously accepted.

               Chapter on taking oath about the manumssion

If the patro says "if I enter,all the slaves I have are free in that day",all of the slaves who were under his ownership when entrance occured,no matter whether they were  in his ownership while he swore or not,are manumitted  his entrance.If he does not say "that day",no one but who were in his ownership while he took oath are free.

The same rule will be applied if he says "all of my slaves (under my ownership) are free after tomorrow".   

The expression "under my ownership (mamluk)" does not include the fetus.If he says "all all of the ones under my ownership as male,are free" and he has a pregnant she-slave,and she gave birth to a baby boy in a period less than half a year from the time of taking the oath,he will not be manumitted. If he does not put "as male",then he is freed being dependant to her mother.

If he says "all of my mamluks (one under my ownership)" are free after my death",all of the slaves he had  while he made took oath,become mudabbar;but the ones whom he may owne later.Further 169 / more all of them become emancipated automatically from the one third of his assets after his death.

           Chapter on the manumission against a material

Any slave who was emancipated against  a material property or things like that and he accepted it,he becomes free anthe material is a debt on him,it may be also guaranteed,comtrary to the the amount of Kitabah (making  the slave mukatab).

If he says "if you pay to me a thousand,then you are free" or "if a thousand is paid to me,you are free",then he becomes authorized to work,not mukatab. and he becomes free.if he pays the amount in the same sitting or he leaves the amount (the material) in between when he uses "in (if)" as conditioning preposition and when pays or leaves the amount ,when he uses "iza (if)" as suspending preposition.

The patron has to take it.If the slave pays some part of it,he has to take it,but the slave will not be free until he pays the total amount.As he is also not free if some part of the amount was deducted and the slave paid the rest only.

Then if the slave pays one thousand which he earned before conditioning,the patron appeals to him and gets the equal amount from him and he becomes free.

If he earns that amount after it,the patron will not get it back.

If he says "you are free after my death against a thousand",if the slave accepts it after his death and the heir(s) manumitted him,he becomes free;otherwise ,does not.

If he emancipates him with a condition of serving him a year,and he accepts it,then he becomes free and he has to serve him for the period fixed.If the patro dies before the completion of the service period,he has to pay his own whole price,according to Muhammad the value of his sdervice is due.

It is also the same rule to be applied if the patron sells his slave against a specific material,then the material perished 170 / before the reception,it becomes necessary for him to pay his whole value,but according to Muhammad the value of the material is the due.

Who say another person "you manumit your she-slave against a thousand with a condition yougive her to me as wife",the other person did that,but the woman abstained from marrying him,there is nothing due on him.If adds ".. `anni (from me)",in this case,the thousan is to be divided upon her value and her average dowry (mahr mithl) and the instructer has to pay the share out of the value and he does not need to pay what he had fixed as dowry.

If she marries him,the the share of dowry is her right in both of the cases and the share of the vakue is due to the patron in the second case,the share in the first case is not vakid.

                        Chapter on Tadbir

An unconditional mudabbar is a slave whose patron said him "when I die,you are free" or "you are free after me ( `an duburin minni)" or ".. the day I die" or ".. with my death",or "..during my death" or "..in my death",or "yyou are mudabbar" or "I made you mudabbar"or "if I die until hundred years" and the death got him in that period,or "I made a will for you by yourself" or "..byy your neck (slavery)" or ".. with a hird of my property",he can not take him out of his property except by manumission.

It is permissible for him to get his service,to make him mukatab,to let him be hired.She-slave can be joined in sex and married to.

When the patro dies the slave gets freedom from one third of his asset,if the third does not suffice,then according to the ratio of a third.

171 /  patron does not leave any thing else than him,then the slave works for the two thirds of his value and pays it to the heirs.

If he is totally drowned in the debt of the patron,then he works and pays his total value to the heirs.

If one of the two co-owners makes  tadbir and compenses the half,then he dies,then half of the slave becomes free with tadbir and he has to earn and pay for the other half.The two imams oppose to this idea.

Mudabbar who is restricted and conditioned is one whom his patron says "if I die from this sickness" or ".. from this journey" or "..from such desease" or "..until ten years" or ".. until one hundred years" and there no probablity of the death in that period,it permissible to sell him.

And if the condition is materialized,then the slave  gets his freedom as a mudabbar does.

       Chapteronthe birth of she-slave giventoher patron 

No reletion of blood of a child given birth by a she-slave gets fixed in terms of son and father between him and the patron,except if the patron claims it.When the relation is fixed,the she becomes umm walad.It is not permissible to take him from his property except by manumission.He has the right to make sex with her,to get her service and to let her be hired,to join her as a spouse in a wedlock and to make her mukatab.

She will be manumitted automatically after his death from all of his assets and she has nothing to earn and pay to her patron.

The blood relation of her son gets established after that without any process of claiming.

If the patron rejects the relation,ther will be no more relation.

If he marries her and gets a child out wedlock and then purchases her,then she resumes the status of umm walad fot him.The same rule if he gets a child from she-slave,then some  one claimed the ownership and after that the first owner gets second time the ownership,this is just opposite to  the case if he got a child out of adultery,the he  obtained the ownership.

172 / If a christian umm walad accepts Islam,then her husband is to be offered Islam,if he converts to Islam,she is for him;otherwise  she works to pay her value to him.

Her statua will be like mukatab.She will not be enslaved obce more incase of her unability to payy.

If he dies she is set free automatically without any work to pay.

Any one who claims that a she-slave in whom there is a partnership is her umm walad,the blood relation of child gets fixed in relaton to him and she becomes his umm walad.He has also to recompense half her value together with half of one tenth of her value (`uqr),but not the value of the child.

If both of them claim simultaneously,the blood relation isfixed rof both of them,and she becomes their umm walad.Each one has to pay one twentieth part of her value.They setle reciprocally their debts and get balance against each other.The child will inherit both of them as a son and they will inherit him as father (one only).

If he claims the child of the she-slave of his mukatab male slave,then the mukatab approved him,then his blod relation gets automatically established regarding the relation to him.The father has to pay the value of the child and one tenth of her value.She will not be his umm walad.

If the mukatab does not approve what the patron says,then no blood relation gets established,except if the child enters in the ownership of the patron in any time.

                       Book  of  the Oaths (Vows)        

The oath (yamin) is to reiterate one side of the indicative sentence by what is sworn on.It is three types:

First is ghamus oath: it his swearring on an event of the past or the present liying intententionally.

Its rule is thar that a sin and there is no expiation (kaffarah) in this regard,except the repentence.

Second is laghw (ineffective): It is his swearing on a past event,which he thinks it happened as he says,while it is just opposite of it.

173 / Its rule is pleading forgivness from Allah.

Third is  mun`aqidah (effective oath):It is his swearing to do/not to do an act in the future.

Its rule is the obligation of observing a penalty (expiation,kaffarah) in case he does not keep his oath.

Some of the act under this group are what they are to be observed and the oath is not to be broken like obligatotory duties and leaving aside the  acts of disobedience to Allah.


Some of them are a group in which the oath is bound to be broken,like the oath on doing the acts of disobedience and not doing the  obligatory duties.

There some acts which are preferred to break the oath taken about them,like resentment to muslim and the like.

All other acts are better to keep the oath protecting its dignity.

There are no differences between intentionally and non-intentionally done otahs,one who was forced to take the oath aor break it.

Kaffarah (penalty) is manumission of the slave or to feed ten destitutes,as it is in the manunmission for kaffarah of a zihar and feed him or to cloth each one of them with a cloth which cover the whole body,that is the valid view.To offer them justs pants is not sufficient.

If he becomes unable to do any one of them during his observance of the expiation,then he fasts three days consecutively.No expiation is permissible before the breaking the oath.There is no kaffarah in any oath of an infidel,even if he breaks after becoming muslim.

The oath of a minor,or mad or sleeping persons are not valid.

                             Chapter

Prepositions to take the oaths are (in Arabic) waw,ba' and ta'. Some times these prepositions becomes omitted,like "Allahi,I will do it".

174 / Taking the oath "by Allah" or by one of his names,like "al-Rahman,al-Rahim" and "al-Haqq" and the like does not need intention,except in the names which are used in naming the others,like "al-hakim" and "al-`alim".

Vowing (taking oath) may be done by one of the adjectives of Allahwhich can be sworn on traditionally like "izzah of Allah","His Jalal","His Kibriya'","His `Azamah" and "His Qudrah".Tehse are all valid.

Not the vows made on things other than Allah,like al-Qur'an,al-Nabiyy and al-Ka`baqh.No  oath can be done by an adjective on which no swearing  is traditionally made,like His rahmah,His Ilm,His rida',His Ghadab,His sakhat and His `Azab.

If he says "la-`Amri Allah" ,that is an oath.Also if he says "Wa aima Allah" or "Saw kandami khoram ba-Khudaya".

It also  an oath if he says "wa `ahdi Allah" or "wa mithaqihi" or "wa uqsimu" or "wa ahlifu" and "wa ashhadu",edven if he does not say "bi Allahi". Also if he says "alaiyyya nazrun or yaminun or 'ahdun",even if they do not add "ila Allahi".

Also his words that if he does so and so,he will be kafir or Yahudi or Nasrani or away from Allah;and never becomes kafir by breaking the oath,no matter whether he suspendded it to the past or future,provided he knew that it was an oath.If he knew that he would be kafir,then he becomes infidel (kafir).

His word as if he does like this and that,then the resentment oar anger  or curse of Allah be upon him,or he is making adultery,or he is stealer or drinker of the alcohol,or eater of interest,then none of them are considered as oath.

Also his words of "haqqan (truly,by Allah)" and "wa haqqi Allahi".Abu Yusuf has minority opinion.

175 / Also his expression of "Sawkand Khoram ba-khudaya ya ba-talaq-i zan",has same consequence.

Any one who prohibits any thing he ownes to himself,that does not become unlawful (haram).If he makes any thing or some part of taht thing which was made haram by himself to him,then he has to observe Kaffarah in this case.

His sentence of "all halals are haram for me" includes the food and beverage.Fatwa is on that his wife becomes divorced without any intention.

It is exactly like that if he says "halal barway haram (halal on him is haram-persian) and also "harche ba-dast rast giram,barway haram (whatever Ihold in my hand is forbidden upon him-persian".

If he vows unconditionally or suspended to a condition which he wants to happen,like if comes back what disappeared or found,then he needs to fulfil it.

If he suspends to a condition which he does not want to happen like "if I make adulktery",then he has an option to fulfil or to pay kaffarah.This the correct view.

Any one who makes wasl (liason) to his sentence of the oath "insha Allah",he can no longer break it.

    Chapteronentrance,goingout,arriving anddwellinga place

He swore that he will not enter home,but he entered the Ka`bah or Masjid,or the synagog or the church,he does not break his vow.Also  the same rule will work if he enters a tunnel and the shadow of the door of a home that if it is closed it may fall outside,otherwise he breaks it as is the case if he enters a patio (suffah).It is said taht he will not break his oath by the entrance into the patio.If he says he would not enter in any home (daran),then he enters wreckage of a home,he does not break the 176 / oath.   If he says that he will not enter "this house",but he enters its wreckages,even if it is a sahra' or after what nother house was built,he has broken his vow.Also if he stays athe top of its roof;it is said that he does not break his vow according the our tradition.

If he enters the frame of the door or its corridor which if it is locked that will be left outside,he does not break the oath;otherwise he  has broken it.

If it is made after it was ruined a mosque,a public bathing building,a garden or another home,then he enters one of them,he has not broken his oath.The same rule is to be applied if he emters after the public bathing room and the like has been wreched down.

If he swears that he will not enter "this house",then he enters it after it was wrecked down and left as a lot,or after another home was built,he has not broken it to the contrary of the case that when the roof falls down and the walls stay erected.

If he says  that he will not enter "this house" while he is in,he will not break his vow until he comes out and then enters;the same rule to be followed in saying "this cloth" while he is wearing it,or will not ride "this horse",while he is riding,or will not dwell "this apartment" while he is already in he,provided he immediately takes the cloth off,gets off the horse and moves out of the apartment;otherwise he  breaks the oath.

If he says that he will not dwell in "this home or this house" it is necessary for to goout with all of his family members and households,so much so that if a column is left he has broken the oath.According to Abu Yusuf taking out the majority of the households is to be taken as criterium,according to Muhammad moving out commodities which are good enough for the house is the 177 / criterium.This is for the convenience of the people.Then he has to move to another house,he his not considered keeping his oath by moving into the street or the masjid.   

Also if he says that he will not live in "this suburb" or "in this city" or "in this village",he will be considered not breaking  it by going out of it and leavin his familyy and belongings there.

If he says that he will not go out,but orders some  one to carry him out and the person takes him out,then he has broken his oath.

If he, in this case, was  carried without his order and taken out forcefully or with pleaure,then he does not break his oath.

It is also like wise if he says he will not enter or go out except for the funeral,then went out for funeral and meantime he did also some thing else,he is not considered as breaker his oath.

But if he says he will not gou to Makka,then he went out willing to go to it,but returned back,he has broken the oath.If he says that he will not come to it in the same conditions,he has not broken the oath until he enters it. The verb of "go" is like "come to" in the correct view.

If he says that he will defintely go to  so and so person,then he does not go to him until he dies,he has broken his oath at the last minutes of his life.If he defines his "going tomorrow" with "the ability",he is healthy in terms of organs and having no obstacles,if in this case he does not go though he had no obstacle such as illness or authority,he has broken  the oath.

If he means with "the ability",the literal meaning of it,his word is to be taken as true from the point of fatwa,but not from the point court procedure,this is according to the preferred view.

If the wife says that she will not go out except with the husband's permission,the permissin is the requirement to each one of going out.If he phrase is "except if he permit/permitted" then the permission given one time is enough.

In the case  " she will not go out,except with his permission",if he permits her as whenever she wishes to go,then he prevents 178 / her,if she goes out,she does not break the oath according to Abu Yusuf;Imam Muhammad is of the opposite opinion.

If she wants to go out,the husband says "if you go out" or she intends to beat the slave,bu he says "if you beat" then the breaking of  the oath  is defined and restricted immediately with that act.So if she waits then she does it,the husband does not break the  the oath.

Ifsome body says to another person "sit and have a meal with me",then he says "if I have a meal with you,so and so",he does not break the oath by having  the meal without him,even if he does it in the same day,except in the case of his expression is "if I have a meal today".

If he says he will not ride on a horse of some one,then he rides on the horse of the authorized slave of that person,he does not break the oath,except if he really means it and he is not drowned in debt.According to Abu Yusuf he has broken the oath unconditionally,if he means it;according to Imam Muhammad he has broken the oath in all conditions,even when he does not mean it.

   Chapter on swearing on eating,drinking,wearing and speaking 

If a person sayas tha he will not eat from "this date-tree",that means "its dates and its uncooked natural juice".Its syrup or vinegar and cooked natural juice are not included.

If he says that he will not from "this sheep",that means its meat,not its milk and butter made out of it.

Ifhe says he will not eat from "this raw date",theneatsits ripe dates,he does break the oath.It is the same if the expression is "from this ripe dates" or "milk" then he eats them as dates and yogurt made out of that milk.It is just opposite of it if he says

"he will not speak to this child (minor-sabiyy)",thenhespeaks with him while he is adult or elderly person ;or he says that he 179 / will not eat the meat of "this lamb",then he eats his meat while he is ram.

If he says that he will not eat raw dates,and he eats while they are ripe,he does not break the oath.If he eats them while they are mixed.then he has broken his oath.The same if he eats the mixed dates after he swears that he will not eat them ripe.The two imams say that he will not break the oath in both of them.But if he eats mixed ones after he swears on not eatning neither ripe nor raw dates,he has unannimously broken the oath.

If he says that he will not purchase ripe dates,but he purchases a bunch of raw dates in which there are also some ripe dates,he does not break the oath,as it is the situation if he  purchases raw dates mixed with ripe ones.

If he says he will not eat meat or egg,but he eats fish or caviar (eggs of fish),he has not broken the oath."purchasing" is also the same.

If he eats meath of a human being or pork,he has broken the oath.The same rule will work if he eats liver or stomack.The preferred view is that he he will not break the oath in both of them according to our tradition as if he eats the the the fat of the tail he will not breake the oath.If he says that he will not eath "fat (shahm)",it is defined by the fat of the abdoman,so will not break the oth by eatng the fat of the back,the two imams are of the opposite opinion.If he eats the fatty tail or the meat he will not unanimously break the oath.    

If he says that he will not eat from "this wheat",that is defined and restricted to eatin it as grains (not grounded),hew does not break the oath by eating the bread made out of it,the two imams oppose this idea.

If he says that he will not eat from "this flour",he breaks the oath by eating a bread made out of it,but he does not break it by swallowing some flour without chewing it.This is the correct view.

The word of "bread" means what the the people of that city is 180 / traditionally used to it,as the the brad of wheat or oat. 

If he eats lavash type of bread or rice bread in Iraq he does not break the oath,except if he means it.The word al-Shawa' (Kaba)b means the meat,not the egg plans,or carrots or eggs,unless he means it.

If he swears that he will not eat tabikh,that means the meat boiled in water and its soup,unless he means some thing  other than that. 


If "head (ra's)" is mentioned,it falls upon waht is sold in the city by that name and put into the oven.

If "fruit (fakihah)" is mentioned,it means apple,water melon and apricot.According to two imams it also means grape,dates,pomegranate.It does not include cucumber accoording unanimously accepted opinion.

The word of "idam (basic substenence)" means the food which is out on the bread like the vinegar,olive oil and the milk.And also "the salt",but it does not mean the meat or egg or cheese,except if intended.According to Muhammad that is also inculded  in "idam". The grape and water melon are not consodered in "idam" according to the correct view.

The word of "ghada'" is a meal eaten between the dawn and the period when sun is on the zenith. "`Asha'" means the  taken between the periods of when the sun is on the zenith and mid night."Sahur" means denotes to the periods between mid night and the dawn.

In his words of "if I eat,or drink,ot wear,or speak,or married to or went out", if he means soem thing specific,that will not be accepted as true,If he adds the word "ta`aman" (food) or "sharaban (beverage)" or the like,then his words are to be 181 / accepted true from the point of the religion,not from the poing court procedures.

If he says that he is not going to drink from "the Tigris",he will not break the oath by having water taken from it in a cup,since he did not have it touching the lips to the river.The two imams are  of the opposite opinion.If he says from "the water of the Tigris" then he breaks his oath  by having it in a cup,according what unanimously accepted.

The words of "jubb" and "bi'r" (both of them mean "well") and "ina' (the cup)" the  contexts are as it is mentioned before.

The possibility of keeping the oath is a condition for the validity of it.Abu Yusuf the minority opinion.

Any one who takes the oath that he will drink the water of this glass today,whereas there is no water in it or there was some water in it,but it was poured put before "today" passed,he will not be considered as breaking the oath,Abu Yusuf is of the opposing opinion.The same position if he does not say "today",except if there was some water ant it was poured out,in thi case he breaks the oath,as it is unanimously accepted.

If he says tah he will definetely ascend to the sky and fly in the air or he will turn this stone into the gold or wlii kill Zaid whreas he knows that he is no longer alive,the oath  in all of these cases are valid and he immediately has broken it.If he does not know the death of Zaid,has not.Abu Yusuf has minority opinion.

If he says that he will not speak,but he reads Qur'an makes tasbih or utters the Kalima or  takbir,he does nor break the oath,no matter whether it was in the prayer or not.Thi is the preferred view.

If he says that he will not speak to certan person,then he speks with him while he is asleep in a way way that he he hears,he has broken the oath,if that awakens him,it is said in any condition hebreaks it.If he speaks to another person intending to let "the certain person" hear it,he does not break it.If he says salam to 182 / group,in which there is tah certain person,he has broken it,but if he means them excludung him,he has not.

If he adds to "except with his permission",then the certan person permitted without knowing it,and the  oath taker sporke with him,he has broken the prayer,Abu Yusuf is of the opposing opinion.

If he says that he will not speak a month,that is from the moment of his oath.The expression "the say I speak with him" is for anyy time.And to mean the day time is valid.

The expression "I speak with him" falls on night only.

If he says "if I speak him until Zaid comes" or "..until he comes" or ".. except Zaiy permits" or "..until he permits",if he speaks with him before that event,he breaks the oath.If Zaid dies,the oath gets invalid.

If he says that he will not eat the food of so and so,or will not enter his home,or will not wear his cloth or will not ride on his horse or will not speak to his slave,taker of the oath specofies the item,then his ownership expires,then he does it,in this case he does not break the oath.Imam Muhammmad opposes in the slave and home issues.

In the events which automatically get renewed he does not break it unanimously.If he does not fix the item,he will not break it after the sun passes the zenith,and he does break in automatically renewed events.

If he says that he will not speak with his wife or friend,he breaks the oath if he specifies her/him after he gets seperated from her or be in enimosity relation with his friend;In no specified cases,he does not break it,except according to a report from Imam Muhammad.He breaks the oath in the venets which automatically get renewed.

If he says that he will not speak with the owner of the this mantle,then he seels it,after that he speaks,he breaks the oath.

If he says "I will not speak to him some times,for a period of 183 / time or for some of the time (hinan/al-hin or zamanan/al-zaman) and he has no intention,this falls upon six months.If he has a specific intention,it is what he intends.

If he uses the expression of "al-dahr (endless time)" or "al-abad (forever)",it means life of a person.If he uses it as "dahran"
 without definite article,Abu Hanifah stopped in this issue,but according to two imams it means "time (al-zaman)".

If he says "ayyaman (days)" or "months (shuhuran)" or "years (sinin)",then it means three of them.If he uses them with the definite article,then it means ten of themmas it is the case in "ayyamin kathiratin (many days)".Both of the tywo imams swaid that it falls on the friday (a week) in days,on a year in the months and on the life of a human being in years.

      Chapter about taking an oath on divorce and manumission       

If he says "if you give birth to a child,you are so and so",he breaks the oath if child is born dead.If he says "he is free" and give birth to a still baby,then she givesd birth to an alive baby,the alive one  is emancipated.According to two imams he is not.

If he says "the first slave he will have is free",then he owns one,he is free.If he owns two slaves together,then another one,none of the three is emancipated. If he adds the expressin of "one alone (wahdahu)",the last (third) one gets freed.If he says "the last slave I own,..",then he dies after he owns one slave,he does not  become free;if it hepappens after owning the two seperate slaves,the last one becomes free from one sixth of his assets,according to two imams he is free after his death from the one third of his assets.

It is also like that if he says "the last woman I marry is divorced three times",she does nor inherit him.The two imams have 184 / dissenting opinion in this regard. 

In a sentence of any slave who gives me good tidings of such and such he is free",if three seperate slaves do it,the first one becomes emancipated.If they give it all together,they will be manumissioned.If he says "who gives me  news.." they are emancipated in both of the cases.

If he intends paying kaffarah by purchasing his father,kaffarah is payed,but it is not if he purchases a she-slave from whom he got a child by the way of marriage od a slave on whose manumission he swore;except if he says "if i purchase you,you are  free for my kaffarah".

In a sentence "if I get privacy from any she-slave,she is free",if he gets privacy from one who was under his dominion during his oath,she is emancipated;and if he gets privacy from any one who enters his dominion after that,she is not manumissioned.

In an expression of "any one who is under my dominion,is free",his slave,mudabbar and umm walad is emancipated,but not his mukatab slave,except if he makes intention.

If he says "this is free,or this and this..",the last one becomes emancipated,he gets the choice of choosing one of the first two.The situation is the same in the manumission and acknowledgment of the debt.

   Chapter on taking oath on selling and purchasing,marriage etc.

He breaks the oath if he does it by himself,not his agent in selling,buying,leasing,renting,agreeing on a property,division,responding in a suit and beating the child.

Neither his own act or the act of his agent breaks the oath in 185 / marriage,divorce,khul`,manumission,making  mukatab,agreeing on blood money of intentetional murder,gift,charity,giving credit or getting it.

If he intends his direct act specifically,he is to be taken as true from the point of fatwa,to the contrary of juducial procedure.

It is also beating the slave,slaughtering the animal,building,tayloring,depositing and being depository,lending and borrowing any thing for usus,reimbursing any credit and receving it,clothing and porting some thing,except if he means his own direct action;in this case he is to be accepted as true from ther point of judicial procedure as well as fatwa of a mufti.

If he swears on that he  will not marry,but an unauthorized person let him marry and he approved him by words,he breaks the oath.But if he approves him by any act,he does not breaks it.

If he says that he is not goint to let marry his slave or she-slave,he breaks the prayer by delegating  or approving it later.It is the same if he says the same words about his son and daughter,who are minors.But they are adults,he does not break it,except in the case of direct action.

If he uses the letter of lam (for,belongs to) in "selling",such as "if I sold you any cloth",that means that the act is confined to the person for whome  it was sworn by depending on his order,no matter whther it was under his ownership or not.Purchasing,renting,moulding and building are also the same.

But the lam also means the material thing,such as "if I sell any cloth to (lam,for you) you",that necessitates its confinement to him by being under his ownership,no matter whther he orders it or not.

It is also the same if lam is used with beating,eatingh,drinking 186 / or entering.But if he means any thing else,he is to be accepted what he means.

If he says "if I sell him" and "if I buy him" ,"he is free" if he does a contract basing on choice,the slave becomes free.The rule will work if he does any void or conditioned contract,but in the voidable (al-batil) contracts he is not emancipated.  

If he says "if I do not sell him,so and so",then he emancipates him or makes him mudabbar,he breaks the oath.If she says you married upon me",the husband said "any wife of me is divorced",she is also divorced,except according to a view coming down from Abu Yusuf.

If he intends spme thing other than thah,he is to be taken as true from the point of religion,not from the point of court procedure.

Any one who says "it is my duty to go walking to the hoiuse of God" or "to the Ka`bah",then it is compulsory upon him to make Hajj or umrah walkingly;if he rides then he needs to make expiation by sacrificing an animal.If he says "it is my duty to go out  or to go to the house of God" or "to walk to Safa or Marwa" nothing becomes necessary to him.It applies also the same rule upon "it is my duty to walk to al-Haram" or to "al-Masjid al-Haram",the two imams are exceptions.

In his oath pledging that his slave is free if he does not make hajj this year,both of them witnessed that the patron was in Kufah the day of Eid al-Adha,he is not manumitted,Imam Muhammad has a dissenting opinion.

If he says that he would not fast,then he fasts for a period of time with an intention,he breaks the prayer.If he adds "a day" or "one fasting",he does not break in this case.

In his pledge that he would not pray salah,he breaks the oath by by making sajdah,but not before that.If he adds to it "a 187 / salah",then he breaks it with the pair of rak`ahs,not with the less of it.

If he says "if I put on a cloth from your weaving,it is a charity",then he ownes cotton and processes it and weavs it,and wears it,then it is charity.The two imam are of the dissenting opinion.If he wears what her wife weavs from the cotton which he owned while he pledged,then it is a charity,according to the unanimously accepted view.

Ring made of the silver is not an ornament (huliyy) to the contrary of the ring made of the gold and a neclace of pearl.But if it is decorated,then it is the aornament;otherwise,it is not.The two imams said that it is considered as the ornament in any way.The latter is to be based in the fatwa.

If he swears that he will not sit on the earth,then he sat on any spreading or mat,he does not break the oath.If his cloth is placed as seperator between the cloth and him,he breaks it.

In his undertaking that he would not sleep in this bed,then another bed is put upon it and he sleeps on the top of it,he does not break it.If he puts on it a bed sheed,then he breaks it.

If he says he will not sleep on this coach,if a nother coach has been put upon it,then he sits on it,he does not break the pledge.If any kind of spreading or mat is placed upon it,then he breaks the oath.

    Chapter about the taking oath on beating,murder and others

Beating,wearing,speaking and entering are actions which are confined to the alive person.So any one who says "if I beat him" or "if I put that cloth on me" or "if I speak with him" or 188 / "if enter upon him".he does not break the oath if he does any one of then after the death of that certain person.This is to the contrary of washing the body (ghusl),pregnancy and touching.

He swears that he would not beat her,but he pulls her hair or strangles her or bites her,he breaks the oath.

If he says that he will beat her until he dies,this means the the worst position in beating.

He will reimburse his debt in a near future (qariban),any span of time less than a momth is near (qarib:literally means near,close). 

A month is far (not near).

If he says "he will pay the debt today",and he paid it in the fake currency,or a property belonging to a third person,or he sells some thing against that debt and he gets hold of that thing ,he keeps his promise and oath.If the money is made of lead or spurious silver or he gives it as gift or he is exempted from reimbursment,then he does not keep his oath.

If he swears tha he will not get hold the debt owned to him,even one dirham wihout dirham (dirhaman duna dirhamin),he does not break by receiving some part of it,as long as he does not receive all of them in total.If he seperates the act of receiving because of any compulsory act,like weighing,he does not break it.

If he says "if I had just one hundred or nothing other tha one hundred",he does not break the oath by that amount or any amount less than that.

If he says that he would not do  so and so,he is not to do it forever.If he says that he would definitely do it,doing it once is sufficient.

Ig a governor makes some body take allegiance that he will inform him all mischievous acts,this is restricted to the state of his governorship.

He swears that he will give it to a certain person as a gift,then he donates it,but the danated person did not accept it,he kept his pledge.

Accrediting,lending some thing to use and charity are also under the same rule ;all are to the contrary of sales.

He swaears thast he would not smell any  raihan,that means what 189 / has no trunk;he does not break his oath by smelling a rose or jasmin.It is said tha he breaks it.

If he swears that he would not smell roses or violet,that includes also the leaves.

He swears that he would not enter into the house of so and so person,that contains its ownership and renting.

If he swears that he has no property (mal) whereas he hassome amount due to him by a bankrupt person or a rich person,he does not break it.

                Book of Sever Penalties (al-Hudud)

 
al-Hadd is a penalty fixed by Allah and is to be executed as the right of Allah.Ta`zir and qisas (retaliation) may not be named as hadd penalty.

Adultery (zina) is a sexual relation of an islamically resposible male in the vagina of a female who is not under his dominion clearly or doubtfully.

Adultery can be proved by the witness of men agreeing on  teh adultery not on sexual relation when imam asks them about the act of adultery,how it was performed,with whom,where and when it was occured.Then they need to clarify thos questions.They say "we saw him making sex with her in her vagina like as the collyrium pencil is put properly in the collyrium case.

The witnesses are to be cleared in secrecy and in public.

And it may also be proved by acknowledging whereas he is sane,having reached puberty by confessing four times in four different sittings,whenever he aknowledges the imam refuses him until the person disappears from his sight and go away,then he asks the person agian as it was before,except the time,then he explains every thing,the judge penalizes him.

It is recommended to try to convince him,perhaps he may rescind 190 / from it saying "probabely you just kissed her" or "touched her" or "made sex with her with a doubt".

If he rescinds from his aknowledgment before the execution of the penalty (hadd) or during the process of penalizing,the excecution immediately is to be stopped.  

Penalty (hadd) of married person (muhsin) is stoning him/her in desert until he dies.

Witnesses are to start first,if they refrain from doing that or disappear or die,the punishment is ne longer needed,then Imam (governor) follows,then the people.

In penalizing the one who confessed imam (governor) begins first,then the people.

After that his body is to be washed totally and afuneral prayer is to be established upon the body.

The penalty of a nonmarried person is beating him/her hundred lashes with a whip.

Penalty of a slave is the half of it.

The beating will be with a whip which has no knot on it in an average type of beating,each lash is to be applied into different point of the body with the exception of the head,face and vagina.

According to Abu Yusuf the head is also to be beaten in a stroke.

A male is to be beaten while he is standing in each stroke without any kind of stretching.His cloth is to be taken off except the underwear.

The woman is to be beaten while she is sitting.Her dres is not to be taken off,except fur or the dress made of the cotton.

She is to be placed in a ditch drring the stoning,but not the male.

A patron will not punish his slave by stoning without being authorized by the governor.

Being married (muhsin or ihsan) in terms of stoning is being free,responsible,muslim and both of them must have had sexual intercourse in a valid marriage before this adultery,provided the both have these qualities in them.

Both of the beating with whips and stoning can not be applied together.Also beating and sending to exile,except as an administrative measure, can not be applied together at a time.

A person who is sick is to be stoned but to be lashed until he 191 / gets cured.

A pregnant woman,if her involvement in adultery is proved by evidence,she is to imprisoned until she delivers the baby,and she is to be stoned after the deliverance.And she is not to be stoned until she goes through her after birth bleeding period.

If the child does not have any one who will take care of him,the mother is not to be stoned until the child reaches to the age that she may be no more in need of her.

       Cahpter on the sex which necessitates the penalty 

       and which does not

Doubt is a factor of eliminating the Hadd.Doubt is divided in two:

Doubt in the act: It is accptance what is not evidence as as evidence.He is not going to be punished,if he thought that  it was lawful.Otherwise he is to be punished by hadd.For example if he makes sex with his wife who is in her waiting period after three times of divorce,divorce against a material thing,or umm walad,whom he emanicapatedmor the the she-slave of his ancestors,no matter how far it goes up,or the she-slave of his wife or his patron's she-slave.It is also the same if the deposited person makes sex with a she-slave who was deposited as pawn to him.

Doubt in the place.It is a case of the existence of an evidence  which negates the prohibition by itself.In this case he is not going to be penalized,even if he knew the prohibition.For example if he makes sex with the she-slave of his son,no matter how far  goes it down,or commonly shared she-slave,or a wife who is in her waiting period after she was divorced with the kinayah words (words having the contextual meanings),not with three times of dsivorce,or the seller's sex with his sold she-slave,sexual relation of a husband with his she-slave who whme he gqave her as dowry for a marriage contract before her deliverance to the owner.

Blood relation (nasab) is established in this doubt of place,if 192 / he claims it,but not in the first one,even if he claims it.  

He is to be punished if he  makes sex with the she-slave of his brother or uncle,even if he thought that it was lawful.The same status in the case of sexual relation with a woman whom he found in his bed,even if he was blind,except if he invited her and she said to him I am your wife.

he is not to be penalized in case of his sexual relation to a third woman who was brought to his room as his wife and given to his privacy,they said to him that she is his wife.He is to pay the dowry to her.

If he makes adultery in non-Islamic state or state of belligerency,he is not to be punished.He is not also to be punished if he had sex with his relative he is married to or a woman whom he hired for the sex only,the two imams are of the dissenting opinion.

If he makes sex with a third lady in the part other her vagina,he is to be punished with the dicsretionary penalty (ta`zir),not decisive penalty (hadd).It is the same if the sex is made in her anus or had a relation of homosexuality like the people of Lot,according to two imams he is to be penalized with hadd.

If a zimmi (non-muslim citizen of an islamic state) makes sex with woman from non-muslim warrior state (dar al-harb) whle both are in our muslim state,then zimmi person alone is to be penalized. 

According to Abu Yusuf both of them are to be penalized.

In the case of the facts opposite to to the latter one zimmi woman is to be penalized,not the harbi (non-muslim citizen of non-islamic state).But according to Abu Yusuf both of them are to be penalized.But according to Imam Muhammad none of them is to be penalized.

If he an islamically responsible person (mukallaf) makes sex with an insane woman or a minor girl,then he is to be punished;in the cases which are just opposite,there is no penalty upon her,except according to one report made from Abu Yusuf.

There is no hadd penalty on a person aho acts under the force and also if one of them aknowledges the adultery and the other part claims that there was a marriage relation between the two.

193 / Any one who makes adultery with a she-slave and kills her,he is to be punished with hadd as well as to pay her value.According to Abu Yusuf he is to pay the value only.

A caliph is to be penalized by paying some amount of money and retaliation (qisas),not by hadd punishment.

     Chapter about testifying on adultery and rescinding it

No testimony is acceptable about the execution of the penalty in the past in the areas which are not far away from the imam (governor),except in the false accusation of a woman with adultery (qazf).

In the crime of theft he is additionally to to reimburse the property.

Acknowledment of the past penalty (hadd ) is acceptable in the penalty of drinking alcohol.

The passage criterion in the crimes other than havin alcohol is limited with a month according to the correct view.It is restricted in takin alcohol with the disappearance of smell.According to imam Muhammad it is also one month.

If the witnesses testify about a adultery of a woman who is absent,the testimony is acceptable to the contrary of a threft in which some property has been stolen from an absentee.

If a male aknowledges that he made an adultery with an unknown woman,he is to be penalized.If the witnesses testify in that way,he is not to be punished.

It applies also the same rule if the witnesses disagree about the whether the woman was forced or not.According to two imams the male has to be punished.

No party has to be punished if the witnesses disagree on the city where adultery happened or the four witnesses testify about the act that it happened in a certain time in a city whereas some other four witnesses testify that it hapened at the same time in another city.

It applies also the same law if the four witnesses testify about an dultery made by a woman who is stil virgin,or the witnesses are not rightous pepole (not passed the procedural compulsory clearance),or their testimony is based on the testimony of other 194 / witnesses,even if the main witnessaes testify after that.

The accused is to be punished if the the witnesses disagree abot the corners of the house it occured.

The witnesses are to be penalized if they are blinds or they are already punished in a false accusation crime with adultery,or they are less than four in number or one of them is slave or already penalized in a decisive penalty (hadd).

The same law  applies if one of the witnesses found as being slave or punished in hadd penalty after the execution of the penalty on the related person.His blood money is to be payed by the state budget,if the person has been already stoned to death.

No blood money is requred in case od an injury or death occured because of the execution of the flogging penalty.The two imams are of the opinion that it is to be payed by the state budget.

The same differences of views are there if the witnesses rescind their testimonies.If they rescind after the stoning has been executed,they are to be penalized with false accusation crime (qazf) and convicted to pay the blood money.Any one who rescinds is to be penalized and compensate one fourth of it.If one out of the five resinds,nothing is there to be done by him.If another one rescinds after the the fifth,then both of them are to be penalized and both are to pay together one fourth of the blood money.

If one of the witnesses rescinds before the judgement of the court has been passed,all of them are to be penalized.It is also the same rule if after the judgement,but before the executuion of the penalty.According to Imam Muhammd only the rescinder is to be punished.

If they testifiyed and got a proper clearance,and the culprit was stoned to death,then after that it is understood that they were infidels (kafirs) or slaves,then the blood money is to be payed by the ones who testified for their clearance and caused them to be cleared (muzakkin),if the latters rescind their clearing testimony,otherwise it is the burden of the state budget.But the two imams are of the opinion that in all cases it is the the 195 / state budget which will compensate it.

If any one kills the person who was ordered to enforce the law and to execute the stoning penalty,then it was understood that the witnesses were like that as they are mentioned in the latter issue,then the blood money is to be payed by the killer.

If the witnesses confess thay they intended to watch the act of adultery,the testimony is not to be rejected.

If the the accused person rejects that he/she was muhsin,it is to be determined by the testimony of two males or one male and two females or by the deliverance of his wife to a child from him.

            Chapter on the penalty of having alcohol

Any one who drinks alcohol,even one drop,or was captered while the smell of alcohol is there or they brought him while he was inebriated,even if ti stems from the beerlike soft beverage (nabiz),and two witnesses testify on that or he himself confesses once,according to Abu Yusuf twice,given in all of these cases,he had alcohol without any force,he is to be flogged after he gets sober eighty lashes if he is free and fourty lashes if he is slave,each one of the lashes being sperately aplied on alternative part of the body,as is the case in the penalty of adultery.

If he confesses or two witnesses testify against him after the the disappearance of the smell of alcohol,provided the disappearance is not because of the remotenes of the place,he is not to be punished,imam Muhammad has a dissenting opinion in this regard.

A person on whom the smell of alcohol is found or vomits alcohol or confesses ,but rescind it or confesses while he is not sober,is not going to be penalized until the testimony is given or cofession is done properly.

Intoxication which requires the decisive penalty (hadd) is there if he does not differentiate  man from woman and the earth fro 196 / the sky.According to the two imams he needs to talk none sense and mingle his words.This is what to be based in fatwa.

If the inebriated  husband apostatizes,his wife does not become decisively divorced.

        Chapter on the false accusation with adultery (qazf)         

The penalty false accusation is exactly like one who is guilty of having alcohol from the point of quantity as well as the procedure to prove.

Any one who accuses falsely with adultery a chastite man or woman by using the words denoting clearly to the adultery,he is to be pumished  by hadd penalty with flogging him each time on different part of the body,provided the victims complainsagainst him.

Nothing from his cloth is to be taken off,except the fur or the coat made of the cotton.

His being chastite (ihsan) means being responsible,free,muslim,away from adultery.

If some one negates another persons's blood relation to his father by saying "you does not belong to your father" or "you are not the son of such a such person",if he is in the sate of anger he is to penalized;otherwise not.

He will not be penalized if negates the person in the mentioned way from his grandfather,or relates him to that as his grandfather,or to a person as his uncle (fther's brother) or his uncle (mother's brother) or his caretaker (step father),or he addresses him as "o son of the sky" or addresses an arab person as "o nabatean" or "you are not an arab".

Any one who accuses falsely wit adultery a chastite (muhsan) dead person,is to be penalized,if his father or his child or grandchild,even if they are deprived from the inheritance,asks for it.The child of the daughter is also included in the rule,except according to imam Muhammad's opinion.

A son has no right of asking his father to accuse the mother or a slave also has no right of demanding from his patron to impeach the mother.

The penalty gets ineffective with the death of the victim,but not 197 / with rescission of the confession.

Forgiving or taking any thing material instead of the penalty is not acceptable.

If he addresses to a person by "zana'ta fi 'l-jabal (with the letter of hamza,not saying zanayta)" and means with it "climbing up",stil he is to be penalized,imam Muhammad has a dissenting view.

If he says "o adultery maker (zani)" and the addressee returns the same words to him,both of them are to be penalized.

If he says same thing to his wife and she reruns it back,she is to be penalized.And no li`an is needed.If she answers as "I made adultery with you",the penalty gets ineffective.

If he recognizes a child for him,then negates him,a li`an procedure is to be observed;if he does it reversibly,he is to penalized.The son belongs to hin in both of the cases.There is nothing to be observed if he says " he is neither my or nor your son".

There is no penalty if he accuses a woman who has a child whose father is not known or she was involved in a li`an related of a child,this being contrary to one who made li`an for any one other tah child.

There is also no penalty in accusation of a man who made sex which is clerly haram by itself,such making sex with a person who
 is not under his dominion from all aspects or just the point of one aspect,like a she-slave is co-owned,ormade unlawful to be married forever,like a she-slave who is his foster sister from breastfeeding.

He is not going to be penalized by accusinga muslim who made adultery while he was disbeliever, or accusing a mukatab,even if he dies without paying off all what ought to pay tis emancipater.

He is to be penalized if he accuses one who makes sed with a woman who is haram because of a reason out of him (haram li-ghairihi),like  if he makes sex with the she-slave who is fire-worshipper,or his wife while she is in her menstruation period.It is also the same making sex with mukatab she-slave.Abu Yusuf has adisenting view in this regard.

198 / Any one who accuses a muslim male who married to a non-marriable relative while he was an infidel,is to punished.The imams have a dissenting view in this point.

A passporth holder non-muslim who accuses a muslim in our muslim country is also to be penalized.

One penalty (hadd) is sufficient for the the different crimes having been one type,not if the types are different.

                       Division of Ta`zir

It is to be punished with a discretionary penalty,any one who accuses with false adultery a slave or an infidel or accuses a muslim by addressing him as "o non-rightous,o infidel,o worse person,o thief,o mischiefdoer,o hipocrite,o gay,o player with the children,o eater of interest,o drinker of alcohol,o adultery maker shamelessly,seller of women,o betrayer,o son of adultery maker,o son of sin-doer,o fake muslim,o who does not care his relatives being involved in adultery,o home of adultery makin ladies,o thieves,o haram born person".

But there will be no hadd if he says "o as,o dog,o monkey,o male goat,o pig,o cow,o snake,o cupper of blood,o son of a cupper of blood,provided his father is not like that,o bugha (ox),o renter his female relative for adultery,o child of unlawful product,o alcoholic,o reverser,o reversed,o muskhara,o laughter,o careles of his household female having openly indecent life,o stupid,o obsessed with scepticism".

They saw it better to punish tme with discretionary penalty if the addressed person is the muslim jurist or descendant of Ali.

A husband has the right to penalize with a discretionary penalty 199 / his wife for her not putting make-up on her face and not looking after her beauty or not responding him when he invites her to bed or not observing her prayers,not washing her whole body for the general impurity (janabah) and her going out from his home.

The least level of ta`zir (discretionart penalty) is three lashes and the maximum is thirty-nine.According to Abu Yusuf tyhe latter is seventy-five lashes.

It is allowed to imprison him after the beating.

The worse beating is ta`zir,then penalty of adultery,then of drinking alcohol and then qazf (accusin falsely with adultery).

Any one who was the subject of hadd penalty,then he was discretionary punished and died,nothing is due for his death,to the contrary of case where the husband punishes with discreationary penalty his wife.

                        The book of theft 

It is an islamically responsible person's taking sceretly any thing which amunts to ten dirham coins from the dominion of a person without having any kind of ownership or doubt of ownership on that.


It may be proved with the prooves of alcohol crime.

If a responsible free or slave person steals that amunt of any property which was kept under the dominion of any one or a keeper and aknowledges that or two witnesses testify upon it,imam (governor) asks about the theft as what it is,how it is,here it is,when it is,how much it is and from whom it is,then they explain tham,in this case he hand to be chopped off.

If they were more then one and each one of them got the appointed amount (nisab) of it,their hands are to be chopped off,even if 200 / only some of them were involeved in actual taking the material.  

He is to be punished if he steals wood of teak tree,ebony,sandal,plant like spear,precious stones of green
 color,ruby,sapphire,cups and plate and door which are made of the wood.He is not to be penalized if he steals some trivial things which are aboudant in our country like lawn,bush,sugar cane,fish,bird,arsenic,red dirt and worthless flower.

It is also not punishable if some one steals which perishes immediately like milk,meat,fresh fruits,melon.

Also dried up fruits on the branches,crops not harvested.

And also the materials which may be defended just opposite,like beverages of entertainment and joy and instruments of music and game like tambourine,drum,guitar,flute,lute (instrument like mandoline),golden or silver cross,chess,backgammon.These are not punishable acts.

It is not penalized if some one steals door of the mosque,books of science (knowledge),Qur'an and anducts a free child,even if the latter two had on them some ornaments.Abu Yusuf has a dissenting opinion.Also an adult slave aand a note book,contrary to the minor slave and note books of accountants.

There also no punishment in stealing the dog and lion.

Also there no theft crime in betraying,plundering  and seizing forcefully and also looting the graves.Abu Yusuf is of the opposing opinion.

There is also no act of theft in stealing a pulic property or commonly owned property,the amount of the debt or more than that 201 / amount,no difference if the debt is due at that moment or deterred.

If his debt is money,but he steals a property,his hand is to cut off,this contrary to the opinion of Abu Yusuf.If the debt is in dirham,but he steals dinar,or vice versa,no cutting penalty will take place.No cutting for some thing which a previous cutting has been applied and the thing does not change.If it has been changed,a cutting of second time is to take place like threads which have been woven.

            Division of the Dominion on Things (al-Hirz)

Hirz (keeping things under the dominion of ownership) is two kind: Place,like home,even if it has no door,or its door is open;

Or like a box or a keeper like who is having the things while he is sleeping.

In a place of of dominion keeper is not considered valid.

The no theft penalty in stealing a property of one with whom there is a blood relation stemming from birth also in stealing from the home of the non-marriable near relative,even if it belongs to a third person.


But there is penalty in stealing the property of the non-marriable relative which is in the home of a third person.It is also the same if it is stolen from a non-marriable relative of whose relation stemms from suckling the milk from the same woman.Abu Yusuf has an opposing view regarding the mother.

No cut off penalty in stealing the property of his wife or her husband even if it is under the specially kept domnion.

It is the same  if he steals from his/her patron or from the wife of his patron or husband of the patron or his/her mukatab slave,in-law-relatives from father side and mother side,the two imams have a dissenting opinion.

202 / Or he/she steals from a booty store or public bathingroom during the day time,even the owner was present,or from a home in which he was auhorized to enter or guesthouse he was in.

The hand is to be cut off if he steals at night from a public bathingroom or from a mosque any thing while the owner is present or he put his hand in the box of a third person or his sleeve or pocket or he steals a sach in which there was things while the owner was having it in his custody or he was sleepin on it.

Or the hired person steals from the home of his employer,the two imams have a dissenting opinion.

If he/she steals any thing and does not take it away from the home,hand is going to be chopped except if takes it out from the room into the home;or some of the people of a room steal from other rooms of the same house,or takes some thing from the dominion and throws it to the street and then goes out and gets it or he carries it on a donkey and takes it away from the dominion.

If he enters home and holds it and gives it to one who is outside,the hands of them are not going to be chopped.The same law applies if the one who is outside stretches his hand and takes it out.

Abu Yusuf said the hand of one who enters in the first problem and the hands of both of them in the second problem are to be chopped off.

There is no cut off penalty if he holes in a home and let his hand pushes through the hole and takes some thing away or grabs 203 / it from an outside pocket coming out from the sleeve of a third person,Abu Yusuf has adissenting opinion in this regard.

If he undoes it and then takes the thing from inside of the sleeve,his hand is to be cut off as unanimously accepted.

If he steals a camel or any bundle of load from a carawan,his hand is not to be chopped.But if he pierces the load and takes any thing out from it,his hand is to be chopped.

Tent is considered as home.

      Chapter on How to Cut off the Hand and How to Prove it    
  
The hand of the theif is to be cut off the joint in wristand it is to be cauterized.And his left leg if he repeats,if he teals third time,nothing is to be cut off,but he will be imprisoned until he repents.

Demanding the stolen material from him is a requirement for the execution of cutting,even if he was entrusted or usurper or appliying the interest,or borrower or hirer or co-partner in fir of mudarabah,or sharer of the profit from a capital given by other sharer,or holding of an increaseof price for purchase,or depository for the pawn.

The hand will be chopped also because of demand of the owner in all of these types of theft.

But it is noy to be cut off whit the demand of the theif,or the owner if it was stolen from the the stealer after the execution of the penalty,this is contrary to the case if it is stolen from him before the execution or after the elimination of the penalty because of the doubt.

If there is no demand from any one,there is no cutting,even if the thief aknowledges it.The presence of the one who demands the 204 / property is necessary during the confession,testimony and cutting off.

If his left hand or the left thumb is already chopped or cripled or two fingers other tahn thumb are cut off,nothing is to be cut off from him,but he will be imprisoned.

The same law applies if his right leg is cut off or cripled.

The one who is in charge of cutting off the right hand will not compensate if he cuts the left,the two imams the hand is to be cut off,if he does it willingly.

Any one who steals some thing and rerurns it back to the owner before the suit is being filed,his hand is not to be cut off.

The same law will work if the value of the stolen material decreases than the minimum required amount before the cutting off or the thiev owns it after the judgment of the judge,or he claims that he got the ownership,even if it is not proved.

Also if one the two theives claims the ownership,the hand of the other thief is to be chopped.

If a slave who is authorized to work independently confesses the theft,his hand is to be cut off and the material is to be returned back to the owner.Also the one who is prevented legally from the business according to Abu Hanifah.

According to Abu Yusuf his hand is to be chopped and the material is no to be returned.According to Muhammad neither the hand will be cut off nor the material will be given back.

Any one whose hand is cut off for the theft and the material is there,he has to return it back.If it is not there,there is no compensation upon him,even if he consumes it.

205 / If he performs more than one theft and he was subjugated to the cut off penalties in all or some of them,he is not going to compensate any one of them.The imams say that he has to compensate asd long as his hand was nou cut off for that material.

If he steals a cloth ang he cut it in to pieces in home and then took him out,his hand is to be cut off,but not if he steals a sheep and slaughters it and then takes it out.

If the theif coins dirhams and dinars from the gold and silver,his hand is to be chopped and the coins are to be returned.According to two imams the coins do not need to be returned.

If he paints the cloth with red color,nothing is too be taken from him and he is not going to compensate.According to Muhammad the cloth is to be taken from the thief and he will be given the amount of expenses he spent for painting.

If he paints it with black color,the cloth is to be taken from him and nothing will be given to him.


The two imams decided in the same way as they did in the red color cloth.

                  Chapter on Robbery on the Public Roads

Any muslim or zimmi who attempts to rob the muslim or zimmi on public roads and he  was captured before the act was completed,he is to be imprisoned until he repents.If he robs some property and each one of them gets the minimum level of amount required in a theft crime,his right hand is to be cut off and his left leg is to amputated.

If he maurders only,even if it is done by astick or a stone,he is to be killed as hadd penalty,and the guardian's forgivness is not valid.If he murders and takes any property,his hand is to be cut off,to be killed,to be hung,or to be killed or to be hung only.

Imam Muhammad has a dissenting view in cutting off.

He is to be hung alive and then his abdomen is to be speared 206 / until he dies.He is to left three days like that and it is to be given back to the owner what he had taken ,if it is there,otherwise no compensation is required.

If some of them were involved actually to do that,they all will be penalized.

If he takes any property and wounded,his organs are alternatively to be cut off.And the wounds will be ineffective.

If he wounds only or murders only,then he repents before he is taken to court,there will be no punishment.

The guardian has the right,if he wishes he may forgive or he may demand for penalty if he wishes.

It is the same law will be applied if there was minor or insane or a non-marriable relative of the one whose hand was cut off or sone of the group wre penalized against the other members of the group or the road was robbed night time or day time but in the city or between two cities.

Any who strangles any one else in the city more than one time,is to be  executed for that crime,otherwise the crime is like murder with tool which puts the body into pieces.  
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