Promoting an understanding of Islam that recognises the principles of
justice, equality, freedom, and dignity within a democratic nation state

Case 3: Law, Culture and Social Justice: The AIDS and Gender Justice
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Muhammad Khalid Masud



Questions



1. What is social justice?


2. How does Shari’a value social justice?


3. What is the role of law and culture in defining and realizing social justice?


4. Is gender justice part of the concept of social justice in Islamic law?


5. How do Islamic laws deal with the impact of AIDS on rights in family relations?


1. “Social justice” is a complex concept. It is closely connected with law and
culture. In principle, it is part of the concept of justice, which is a legal as well as a cultural construct. For instance, in the pre-modern societies, justice was conceived as maintaining balance within the hierarchical order of society; slavery and patriarchy were regarded as natural and just. Social ethics exhorted the rich and the powerful to treat the poor and weak with kindness. Institutions of charity were established to regulate “social justice”. In modern societies, such conceptions of social order as regard slavery and poverty as normal and natural are viewed as repugnant to the sense of justice. The concept of justice today, at least in theory, focuses on equality and freedom for everyone. Social justice means equality before law, equal opportunities for social and economic development, and guarantee of basic rights without discrimination on the basis of religion, sex or race.



2. If the Christian worldview is described focusing on the concept of love, Islamic worldview is dominated by the idea of justice (‘adl); both God and an ideal human being are defined as just. Dignity is based on piety; not on the ethnic identity. A just person is the one who is balanced in his/her conduct; acts with awareness that he/she should not harm others (la darar wa la darar) and therefore, his/her acts are guided by reason, not dictated by passion. In early Islamic religious thought, there have been two major divisions on this point. One group (the Mu’tazila who emerged in the third Islamic century) viewed that God is just and the Divine commands are also just. Human reason can discover what is good and just, even before revelation. Thus Divine commands can be rationalized on the basis of justice. The other group (the Ash’ari, who broke away from the Mu’tazila) believed that God is just and his laws are just, but the concept of justice cannot restrict God’s omnipotence. They insisted that human reason cannot define what is just; humans know what is just only by revelation. This school of thought has a deep impact on Sunni Muslim legal thinking even today. Cross current between these two approaches influenced Islamic legal theory as
2 well. The rationalist trend in Islamic legal theory continued to reject that
revelation and reason were in conflict with each other. A number of Muslim jurists defined justice in terms of maslaha which is closer to the meaning of social justice. The principle of maslaha was rejected by Shafi’i and Ash’ari jurists, including Ghazali because they regarded it as an arbitrary
principle and could work at the most as an expedient and supplementary principle. Most modern jurists, including modern thinkers like Abduh, Rida, Sa’id Ramadan al-Buti and others also view maslaha as an exceptional rule that must be restricted by the Usul, i.e. the Qur’an, Sunna, Ijma’ and Qiyas. Several other jurists, for instance, Ibn Abd al-Salam, Najmuddin al-Tufi, and Abu Ishaq al-Shatibi in the pre modern and Ibn Ashur and several others in the modern period, advocate maslaha as a basic and universal principle, rather the objective of Shari’a. They distinguish maslaha from the principles of Istislah or maslaha mursala which are invoked as exceptions to general rules in cases where the four sources are silent. Maslaha refers to the necessities of human life and society and encompasses the social and individual interests relating to life, belief, property, family and reason. These jurists have examined this principle to understand other legal concepts such
as legal obligation, legal capacity, communication, interpretation, and legal value. This principle is also invoked to understand the jurists’ classification of legal matters into Ibadat, Mu`amalat and Janayat. However, maslaha in these writings may not respond to the understandings of social justice today. This is particularly true regarding gender justice. For instance, for the medieval jurists, the Qur’an demands justice among wives was understood as giving them equal time.




3. Law and culture both define and institutionalize norms of social justice in
accordance with the ideals and needs of a society. Social changes may divide a society into groups who have conflicting ideas of social justice; some groups may favor a status quo and others may find status quo to be unjust. The law and culture play significant role both in maintaining the status quo and in redefining the new social. Those who want to eliminate injustice must also rely on law and culture to oppose “unjust” norms and to replace them with new norms. Culture helps to absorb new norms into social practice. It provides new social imagination, vocabulary, thought categories on the one hand and builds new institutions around this social imagination to routinise it. Law facilitates it by creating legal institutions, rights, obligations and sanctions. Law reforms without rooting them culturally often do not succeed. From the perspective of social justice, cultural underpinnings of a legal system cannot be ignored.




4. The Qur’an defines married life as friendship and tranquility. It defines rights and duties of both husband and wife. It defines marriage as a contractual obligation. One can safely argue that Islamic law certainly has gender justice as one of its objectives. The meanings of gender justice are however informed by the respective cultures in which the jurists live and develop laws.




5. With reference to Tanzanian cases, we find the wives deprived from maintenance, inheritance and decent living environment. Islamic law recognizes these rights for the wives but why can law not deliver these rights? Perhaps, it has much to do with culture; the interests of the social system based on patriarchy come into conflict with law. Law is frequently interpreted to protect social interest. Gender justice is also neglected in legal interpretations about maintenance. The situation has been further complicated with AIDS cases. Culturally it is considered shameful to be HIV positive. Hence this status is kept secret. Culture does not
encourage probing into this status at the time of marriage.



6. The position of Islamic law is complicated because it is often informed by the cultural values of justice, equality and honor. With reference to AIDS, Islamic law is further constrained by the thought categories with which it may operate to analyse these issues. The following is a summary analysis of possible categories which may be used to define legal values.



a. Khiyar ‘Ayb (option of defect): AIDS may be defined as a physical defect
in the marriage contract. Islamic law allows option of defect in contracts,
including marriage, as a condition of equality. This equality as the term
kafa’a suggests refers to social status. It is problematic to treat AIDS as a
physical defect in the light of discussions among the jurists who restrict
the option of defect to such bodily defects that make sexual relations
impossible. The jurists mention also certain diseases that allow option of
defect because they are contagious (e.g. skin disease) or abhorrent (e.g.,
madness). The real problem is that Muslim jurists analyze these so-called
“defects” as a possible ground for option of dissolution of marriage. Even
if the wife is allowed the option to judicial separation, it may not be
helpful in all cases. If a wife is infected by her HIV positive husband,
divorce may create more problems for her. Her husband is no longer
responsible for her maintenance after she is divorced. How would she
maintain herself? Who pays for her expensive treatment?



b. Marad (Illness): AIDS could be defined as an illness. In this case Islamic
law is much more complicated. First, according to Islamic law, husband is
not responsible for wife’s medical treatment, because it is not part of the
legal category of maintenance. A husband is obliged to provide for food,
clothes and house, even for a servant in some cases, but not for her
medical treatment. Like the category of Khiyar ‘Ayb, this thought
category is also not helpful to the wife, especially when she is suffering
from a fatal disease. Islamic jurisprudence discusses the legal effects of
legal action of the couple, and more specifically those taken by the
husband, during terminal illness. These legal effects mainly concern
inheritance and financial obligations. The Maliki jurists also analyze the
possibility of a perilous disease (al-marad al-makhuf) on marriage
contract. A perilous disease is a type of illness which normally ends in
death. This disease annuls marriage contract even after the marriage has
been consummated. They go into the details of the financial implications
(e.g. entitlement of the wife to dower and inheritance) of the annulment of
marriage in this case, but these considerations do not include a contagious
disease and when the husband has infected the wife.



c. Tadlis (Secrecy, fraud). The jurists unanimously hold fraud and deceit in
contracts forbidden. Legally, however, hiding a defect does not by itself
annul the contract. It creates an option of defect. Tadlis is also regarded a
defect in the contract itself. This defect is among the defects of agreement
(rada), namely those aspects that evince defected intention. For instance,
one of the parties agrees to a contract under duress. Fraud is when one
party deliberately deceives the other by hiding the defect or providing a
wrong description. The jurists do not consider a contract based on fraud as
invalid; they allow the other party a choice to endorse the contract. This
reasoning is apparently informed by the market customs, but this may also
apply in some family cases. However, the fact that this legal reasoning
does not condemn fraud of hiding facts as a serious offence raises critical
questions for social justice.



d. Al-qasd al-jinayi (Criminal intent): If an HIV positive person knowingly
has sexual relations with someone else, can he or she be charged with
homicide with criminal intent? Although AIDS infected person may
normally die on account of this infection, law cannot call it homicide until
the death occurs. Islamic jurisprudence discusses the question of criminal
intent in at least two types: the perpetrated action may be either the direct
or indirect cause of death. The case of AIDS is complicated to develop
analogies from the examples discussed by the jurists. For instance, one
may argue that it is analogous to poisoning. The Hanafis argue that
poisoning cannot be regarded a cause for pre-mediated murder because a
person can survive poisoning. The other jurists argue that poisoning may
be considered an indirect cause because it is customarily regarded so.
Also, an AIDS patient may not die immediately, and hence the legal
process may not provide relief to the victim.



e. Darar (harm). The Qur’an and Sunna use the terms darar and daraar to
describe harmful treatment of women in married life. The Hadith explains
that daraar is the worse form of darar and is defined in the Hadith
literature as retaliating evil with evil. The term is used for example with
reference to revoking divorce to lengthen the waiting period and denying
mother the right to feed her child. In Islamic jurisprudence, darar also
applies to one’s exercise of a lawful right when it harms others. For
example, a husband during his terminal illness (marad al-mawt) divorces
his wife in order to deprive her from inheritance. The jurists count the
following acts in the category of darar: hurting her by abusive language,
striking her in a hurtful manner and avoiding her to hurt her feelings. The
cruel form of darar is to deprive her from basic needs.
In general, Islamic jurisprudence regards darar an offence against on can
take legal action,, provided
(1) the action is contrary to the objectives of
Shari’a, e.g., if the action deprives someone from the right to inherit.
(2)The exercise of one’s right violates public interest or specific private
rights, e.g. opening a window in one’s house that invades a neighbor’s
privacy.
(3) One exercises one’s lawful right in a way that is contrary to
custom and creates disturbance, e.g., making noise that disturbs neighbors.
No doubt, the notion of darar exists but it is largely informed by cultural
understanding. Consequently, the jurists are reluctant to apply it in case of
women. For instance, Hanafi, Shafi’i and Hanbali jurists do not see the
need for judicial separation for a wife whose husband treats her cruelly.
They argue that the problem could be solved amicably by the family or the
judge can discipline the husband. Only the Malikis allow judicial
separation.



It is necessary to develop the notion of darar in the light of ‘adl and ihsan
to provide a fuller sense of social justice. With reference to AIDS, two
lines of argument need to be developed. First, the choice must be left with
the wife to stay with an AIDS affected husband, if she wants. They should
be encouraged to use measures to avoid infecting each other. For this
purpose, couples may be required to declare if either of them is affected.
Better still, medical certificate for salama min al-‘uyub (freedom from
defect) which is a requirement of Islamic law, should be produced at the
time of contract. Second, the Islamic jurists’ narrow conception of contract
that restricts medical treatment to be part of maintenance needs to be
revised. Third, when a husband infects his wife, deliberately or
unknowingly, he must be made responsible for her maintenance until her
death, even if either of them opts for separation.



Materials



Qur’an


1. Justice is next to piety (5:8).


2. God regards piety as the measurement of dignity, not ethnicity (49:13)


3. God is never unjust to humans; these are humans who do injustice to themselves (11: 117)


4. One must be just even in case of one’s relatives (6:152).



5. Enmity may not lead to injustice (5:8).


6. The disputes must be settled justly (4:58).


7. Relations between couples are defined as tranquility, love and mercy (30:21).


8. Men are responsible for the maintenance of women. (4:34).


9. Treatment of women on a footing of kindness and equity (4:19).


10. Rights of women to shelter, freedom from harm and maintenance (65:6).


11. Women have the right to ownership (4:32).


12. The husband and wife have reciprocal rights; men have a higher degree (2:228).


13. Intentional harm, cruelty and mistreatment of women are forbidden; it is selfinflicting injustice (2: 231).




14. Justice among wives (4:3, 129).


15. Neither a mother shall be harmed on account of her child, or father on account of his child (2:233).


16. A wife must not be harmed in order to restrict her rights (65:6).


17. A husband must not revoke divorce in order to harm his wife (2:231).
Hadith


1. “Whoever acts dishonestly he does not belong to us” (Muslim, book of
Iman).


2. Caliph Umar I said, “A man who marries a woman who suffers from madness or leprosy … she is entitled to payment of full dower” (Muwatta, book of Nikah).



3. No harm and no harmful retaliation (Ibn Majja, book of Ahkam, Muwatta, book of al-aqdiya)).



4. If a man who is mentally ill or has some harmful defect (darar) marries a woman, she has the right to continue the contract or separate herself (Muwatta, Kitab altalaq).


Classical Islamic Text:


Ibn Rushd (d. 1198): Bidayat al-Mujtahid, Vol.2, pp. 43-44 The causes for the option include defects, lack of maintenance, and husband’s disappearance.

Malik and Shafi’i allow the parties to the marriage contract the right of option; they can keep the contract or reject it. The Zahiri jurists do not allow this option. The jurists differ on two grounds. Those who allow option regard the contract of
marriage analogous to a sale contract which provides for this option; others disagree with this analogy. The jurists allow this option also on the authority of Caliph Umar I, who said, “A man who marries a woman who suffers from madness or leprosy … she is entitled to payment of full dower”. While Malik and Shafi’i allow option in all cases of defect, whether sexual or physical,
Abu Hanifa and Thawri allow it in case of only physical defects because of which sexual relations are impossible. Ibn Rushd raises a question: Why do the jurists restrict this option to these defects? He finds three types of answers given by the jurists. 1. There is no rational explanation provided in Shari’a. 2. In principle, contract of marriage is not secret. As a general principle, defects should not be kept secret. 3. Some jurists argue that an option is allowed fearing that these defects/diseases may be carried over to the children. Ibn Rushd adds that in view of this argument one may reject a marriage on account of a skin disease or black color. (p. 44).

Contemporary Islamic Text:
Wahba Zuhayli, Al-Fiqh al-Islami wa adillatuhu,
Marad al-Mawt (terminal illness)
(Vol. 4, pp. 133-138).
Usually an illness which incapacitates a man or a woman to live normal daily life and the
person dies within period of one year. Zuhayli extends this definition to cover such
illness and disease which is usually or in fact ends in the death of a person.
This illness does not affect the legal capacity of the person, but some of his dealing,
especially financial, become legally restrained in if they affect the rights of others, e.g.
his heirs and debtors. However, his/her contract of marriage and divorce are not
restrained.
A person suffering from such illness is entitled, without subject to other’s approval, to
following rights: necessary maintenance including food, clothes, housing and medical
treatment.
The Maintenance of an ailing wife
(Vol.7, p. 794)
The maintenance of an ailing wife is an obligation of the husband, regardless whether she
fell ill after the marriage or was ill at the time of the marriage. This maintenance,
however, does not oblige a husband to pay for the medicine or for the medical
consultation. These expenses will be met from wife’s property. The reason is that medical
treatment is for the maintenance of her body and the husband who is entitled to the use of
her body cannot be obliged to pay for it. This is like hiring a house; the repair of the
house is the responsibility of the owner of the house not of the tenant.
Zuhayli explains this odd reasoning by the jurists saying that medical treatment was not
regarded as a basic need in the past. People had healthy habits and rarely needed medical
treatment. The jurists’ reasoning was thus based on that custom. These days, medical
treatment is a necessity and thus is a necessary part of maintenance.
Hiding a Defect
(Vol. 4, pp. 218-221).
Tadlis: Hiding a defect
Hiding a defect is forbidden in Shari’a, on the authority of Hadith and Consensus of the
jurists.
Technically Tadlis is a defect of will and intention which is a necessary condition for a
contract. The defects that legally affect the consent to contract are: Duress, Mistake,
Fraud and Hiding a defect. Duress makes a contract void and mistake in identity the
contract invalid. In cases of fraud and hiding the defect, the contract creates a right of
option to approve or reject the contract.
Option of defect
(Vol. 7, p. 192)
Maliki jurists hold a contract of marriage invalid if one of the parties suffers from a fatal
illness, a disease that is normally fatal. Such an illness is a defect, whereas freedom from
defect a condition of validity for a contract. In this case, the contract is annulled even if
marriage has been consummated.
(Vol. 7, p. 247)
Freedom from defect is a condition of equality (Kafa’a) in marriage contract. The defects
mentioned in this case are: madness and leprosy. Maliki and Shafi’i jurists regard the
person suffering from such diseases as unequal and the contract non-binding. The Hanafi
and Hanbali jurists do not consider it unequal but allow woman the choice to keep or
annul the contract. The Zahiri jurists do not allow separation on grounds of defect.
If she opts to annul the contract she is not entitled to dower (p. 295).
With reference to Khiyar Ayb (Option of defect), jurists divide defects/disease into two
categories: Sexual defects which prevent sexual relations and disease which does not
prevent sexual relations but is either harmful or abhorrent. The latter category includes
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contagious diseases like tuberculoses. While most jurists allow the option in sexual
defects, their opinions are divided in the second category. The Shafi’i, Maliki, Shi’i and
Hanbali jurists call for annulment of contract in case of such disease. The Hanafis do not
allow option or judicial separation. (p. 517). Annulment of marriage contract on the basis
of defects can be executed only by judicial separation (p. 520).
Criminal intent
(Vol. 6, pp. 224 ff.)
If a person acts in a certain way intending to cause death of another person, it is criminal
intent for homicide. It is causing death by beating, wounding, burning or by poisoning.
The Hanafis maintain a distinction between Qatl Amad (deliberate homicide) and Shibh
Amad (quasi-deliberate homicide); Hanafis do not count a death caused by poison as Qatl
Amad. There is another category in which death is caused indirectly, not as a direct
effect. These indirect causes are classified into three categories: Physical, e.g., duress,
when A forces B to kill C; Legal, e.g., false evidence, When A gives false evidence that
results in the death sentence for B, and Customary, e.g., poisoning.
The rights of husband and wife are defined from the perspective of love and living
together amicably, including prevention of harm to each other. These rights are
given in the Qur’an and Sunna.
1. Mutual rights: Integrity of the family, fidelity, living amicably.
2. Wife’s rights: maintenance, including shelter.
3. Husband’s rights: obedience, fidelity, discipline. House work is not wife’s
duty (Zuhayli, 7:334).
Fatawa:
Mahmud Shaltut; Fatwa issued in 1959 from Al-Azhar
If husband and wife both or one of them suffers from a hereditary disease which is
contagious and may spread to children or grand children, the couple is allowed to practice
contraception.
Cited in Abd al-Rahim Imran, Islami Mirath men Khandani Mansuba Bandi, Rashid
Jalandhari’s Urdu translation of Family Planning in Islamic Legacy (Islamabad: UNFPD,
1994), p. 461.
Illness
أَقْسَامُ الْمَرَضِ 5 - قَالَ ابْنُ قُدَامَةَ : الْأَمْرَاضُ عَلَى أَرْبَعَةِ أَقْسَامٍ : الْقِسْمُ الْأَوَّلُ : مَرَضٌ غَيْرُ مَخُوفٍ مِثْلَ : وَجَعِ الْعَيْنِ ,
وَالضِّرْسِ وَالصُّدَاعِ الْيَسِيرِ , وَحُمَّى سَاعَةٍ , فَهَذَا حُكْمُ صَاحِبِهِ حُكْمُ الصَّحِيحِ لِأَنَّهُ لَا يُخَافُ مِنْهُ فِي الْعَادَةِ . الْقِسْمُ الثَّانِي
: الْأَمْرَاضُ الْمُمْتَدَّةُ آَالْجُذَامِ وَحُمَّى الرِّبْعِ - وَهِيَ الَّتِي تَأْخُذُ يَوْمًا وَتَذْهَبُ يَوْمَيْنِ وَتَعُودُ فِي الرَّابِعِ - وَالْفَالِجُ فِي انْتِهَائِهِ ,
وَالسُّلُّ فِي ابْتِدَائِهِ , وَالْحُمَّى الْغِبُّ , فَهَذَا الْقِسْمُ : إنْ آَانَ صَاحِبُهَا يَذْهَبُ وَيَجِيءُ , وَلَمْ يَكُنْ صَاحِبَ فِرَاشٍ فَعَطَايَا هُ
آَالصَّحِيحِ مِنْ جَمِيعِ الْمَالِ , وَإِنْ أَضْنَى صَاحِبُهَا عَلَى فِرَاشِهِ فَهِيَ مَخُوفَةٌ عِنْدَ الْحَنَفِيَّةِ وَالْمَالِكِيَّةِ وَالْحَنَابِلَةِ فِي الْمَذْهَبِ ,
وَبَهْ يَقُولُ الْأَوْزَاعِيُّ وَأَبُو ثَوْرٍ لِأَنَّهُ مَرِيضٌ صَاحِبُ فِرَاشٍ يَخْشَى التَّلَفَ فَأَشْبَهَ صَاحِبَ الْحُمَّى الدَّائِمَةِ . وَذَهَبَ الشَّافِعِ يُّ
فِي صَاحِبِ الْأَمْرَاضِ الْمُمْتَدَّةِ وَهُوَ وَجْهٌ عِنْدَ أَبِي بَكْرٍ مِنْ الْحَنَابِلَةِ أَنَّ عَطِيَّتَهُ مِنْ صُلْبِ الْمَالِ , لِأَنَّهُ لَا يُخَافُ تَعْجِي لُ
الْمَوْتِ فِيهِ وَإِنْ آَانَ لَا يَبْرَأُ , فَهُوَ آَالْهَرَمِ . الْقِسْمُ الثَّالِثُ : مَرَضٌ مَخُوفٌ يُتَحَقَّقُ تَعْجِيلُ الْمَوْتِ بِسَبَبِهِ فَيُنْظَرُ فِيهِ : فَإِ نْ
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آَانَ عَقْلُهُ قَدْ اخْتَلَّ مِثْلُ مَنْ ذَبَحَ أَوْ أُبِينَتْ حَشْوَتُهُ , فَهَذَا آَمَيِّتِ لَا حُكْمَ لِكَلَامِهِ وَلَا لِعَطِيَّتِهِ , لِأَنَّهُ لَا يَبْقَى لَهُ عَقْلٌ ثَابِتٌ ,
وَإِنْ آَانَ ثَابِتَ الْعَقْلِ آَمَنْ خُرِقَتْ حَشْوَتُهُ أَوْ اشْتَدَّ مَرَضُهُ وَلَكِنْ لَمْ يَتَغَيَّرْ عَقْلُهُ صَحَّ تَصَرُّفُهُ وَتَبَرُّعُهُ , وَآَانَ تَبَرُّعُهُ مِ نْ
الثُّلُثِ , فَإِنْ عَمَّرَ رضي الله عنه خَرَجَتْ حَشْوَتُهُ فَقُبِلَتْ وَصِيَّتُهُ وَلَمْ يَخْتَلِفْ فِي ذَلِكَ أَحَدٌ , وَعَلِيٌّ رضي الله عنه بَعْ دَ
ضَرْبِ ابْنِ مُلْجِمٍ أَوْصَى وَأَمَرَ وَنَهَى فَلَمْ يُحْكَمْ بِبُطْلَانِ قَوْلِهِ . الْقِسْمُ الرَّابِعُ : مَرَضٌ مَخُوفٌ لَا يُتَعَجَّلُ مَوْتُ صَاحِبِهِ يَقِينً ا
لَكِنَّهُ يُخَافُ ذَلِكَ آَالْبِرْسَامِ - هُوَ بُخَارٌ يَرْتَقِي إلَى الرَّأْسِ , وَيُؤَثِّرُ فِي الدِّمَاغِ , فَيَخْتَلُّ عَقْلُ صَاحِبِهِ - وَوَجَعِ الْقَلْبِ وَالرِّئَ ةِ
وَأَمْثَالِهَا , فَإِنَّهَا لَا تَسْكُنُ حَرَآَتُهَا , فَلَا يَنْدَمِلُ جُرْحُهَا , فَهَذِهِ آُلُّهَا مَخُوفَةٌ سَوَاءٌ آَانَ مَعَهَا حُمَّى أَوْ لَمْ يَكُنْ . وَأَمَّا مَا أَشْكَ لَ
أَمْرُهُ فَصَرَّحَ جُمْهُورُ الْفُقَهَاءِ بِأَنَّهُ يَرْجِعُ إلَى قَوْلِ أَهْلِ الْمَعْرِفَةِ , وَهُمْ الْأَطِبَّاءُ , لِأَنَّهُمْ أَهْلُ الْخِبْرَةِ بِذَلِكَ وَالتَّجْرِبَ ةِ
وَالْمَعْرِفَةِ , وَلَا يُقْبَلُ إلَّا قَوْلُ طَبِيبَيْنِ , مُسْلِمَيْنِ , ثِقَتَيْنِ , بَالِغَيْنِ , لِأَنَّ ذَلِكَ يَتَعَلَّقُ بِهِ حَقُّ الْوَارِثِ وَأَهْلِ الْعَطَايَا فَلَمْ يُقْبَ لْ
فِيهِ إلَّا ذَلِكَ . وَخُلَاصَةُ الْقَوْلِ : أَنَّ الْمَرَضَ الْمَخُوفَ بِأَنْوَاعِهِ إنْ اتَّصَلَ بِهِ الْمَوْتُ آَانَ مَرَضَ الْمَوْتِ وَيَجْرِي عَلَيْهِ أَحْكَا مُ
مَرَضِ الْمَوْتِ , وَأَمَّا إنْ لَمْ يَتَّصِلْ بِهِ الْمَوْتُ , بِأَنْ صَحَّ مِنْ مَرَضِهِ , ثُمَّ مَاتَ بَعْدَ ذَلِكَ فَحُكْمُهُ حُكْمُ الصَّحِيحِ , لِأَنَّهُ لَمَّ ا
صَحَّ بَعْدَ الْمَرَضِ تَبَيَّنَ أَنَّ ذَلِكَ لَمْ يَكُنْ مَرَضَ الْمَوْتِ . وَلِتَفْصِيلِ الْأَحْكَامِ الْمُتَرَتِّبَةِ عَلَى مَرَضِ الْمَوْتِ , وَالْحَالَاتِ الَّتِي
. ( تَلْحَقُ بِهِ يُرْجَعُ إلَى مُصْطَلَحِ ( مَرَضُ الْمَوْتِ
Khiyar Ayb
و - السَّلَامَةُ مِنْ الْعُيُوبِ : 12 - ذَهَبَ الْمَالِكِيَّةُ وَالشَّافِعِيَّةُ وَابْنُ عَقِيلٍ وَغَيْرُهُ مِنْ الْحَنَابِلَةِ , إلَى أَنَّ السَّلَامَةَ مِنْ الْعُيُو بِ
الْ  مثْبَِتة لِخيا ِ ر َفسخِ النِّكَا ِ ح  م  ن خصالِ الْكَفَا  ءة في النِّكَا ِ ح .  وَقالَ اب  ن را  ش  د  م  ن الْمالِ  كي  ة : الْمرا  د أَ  ن ي  سا ِ وي  ها في
ال  ص  حة , أَ  ي ي ُ كو  ن  سالِ  ما  م  ن الْ  عيو ِ ب الْفَاح َ شة ,  و  ه َ ذا  ه  و الَّ  ذي يؤْخَذُ  م  ن كَلَا ِ م اب ِ ن بشي ٍ ر واب ِ ن شَا ٍ س  و َ غي ِ ر  ه  ما  م  ن
اْلأَ  ص  حا ِ ب . وَف  صلَ الشَّاف  عي ُ ة َفَقاُلوا :  م  ن الْخصالِ الْ  معَتبرة في الْكَفَا  ءة ال  سلَام ُ ة  م  ن الْ  عيو ِ ب الْ  مثْبَِتة لِلْخيا ِ ر , َف  م  ن ِب  ه
ب  ع  ض  ها َ كالْ  جُنونِ أَ  و اْل  ج َ ذا ِ م أَ  و الْب  ر ِ ص َلا ي ُ كو  ن ُ ك ْفئًا لِسلي  م  ة  عْن  ها ; لِأَ  ن النَّفْ  س تَعا ُ ف  صحب َ ة  م  ن ِب  ه َ ذلِك , ويخَْتلُّ ِب  ه
مقْصو  د النِّكَا ِ ح ,  وَل  و كَا  ن ِب  ها عي  ب أَي  ضا , َفإِ  ن اخَْتَل َ ف اْل  عيبا ِ ن َفَلا كَفَاءَة ,  وإِن ا ْ خَتَلَفا  و  ما ِب  ه أَكَْث  ر َف َ ك َ ذلِك ,  و َ ك َ ذا إ  ن
َت  سا  ويا أَ  و كَا  ن  ما ِب  ها أَكَْث  ر في الْأَص  ح ; لِأَ  ن اْلإِْن  سا  ن يعا ُ ف  م  ن َ غيرِه  ما َلا يعا ُ ف  م  ن َنفْسه ,  و َ ك َ ذا َل  و كَا  ن  م  جبوب ا
 و  ه  ي رتْقَا  ء أَ  و قَرنَا  ء .  وا  سَتْثَنى الْب َ غوِ  ي  والْ ُ خوا ِ رز  م  ي الْ  عنَّ َ ة لِ  ع  د ِ م َت  حقُّق  ها , َفَلا َن َ ظر إَلي  ها في الْكَفَا  ءة  و  ج  رى  عَلى َ ذلِك 
الْإِسَنوِ  ي واب  ن اْل  م ْق ِ ري , َقالَ الشَّيخَا ِ ن  وفي تَعلي  ق الشَّي ِ خ أَِبي حا  م  د و َ غيرِه التَّس ِ وي ُ ة بيَن  ها  وبي  ن َ غي ِ ر  ها , وإِطْلَا ُ ق
اْل  ج  م  هو ِ ر يوافقُ  ه , َقالَ الشِّ  رِبين  ي الْخَطي  ب :  و  ه َ ذا  ه  و الْ  معتَم  د ,  و  و  ج  ه بِأَ  ن اْلأَ  ح َ كا  م ُتبَنى  عَلى الظَّا  ه ِ ر  وَلا َتَتوقَّ ُ ف  عَلى
التَّ  حقُّ  ق . وأَلْح َ ق ال  رويان  ي ِبالْ  عيو ِ ب الْ َ خمسة الْ  عيو  ب الْ  مَنفِّرَة , َ كاْل  ع  مى  واْلَق ْ ط ِ ع وَت َ ش  وه ال  صو  رة ,  وَقالَ :  ه  ي َتمَن  ع
الْكَفَاءَة  عْن  دي ,  وِب  ه َقالَ بع  ض اْلأَ  ص  حا ِ ب ,  و  ه َ ذا خلَا ُ ف الْ  مذْ  ه ِ ب . واشْترا ُ ط ال  سلَا  م  ة  م  ن  ه  ذه الْ  عيو ِ ب  ه  و  عَلى
 ع  مو  م  ه ِبالنِّسب  ة إَلى الْمرأَة , أَ  ما ِبالنِّسب  ة إَلى الْ  ولِ  ي , فَيعتَب  ر في  حقِّ  ه الْجُنو  ن  واْل  ج َ ذا  م والْب  ر  ص , َلا الْج  ب  واْل  عنَّ ُ ة .
َقالَ ال  زركَش  ي والْ  ه  ر ِ و  ي :  والتََّنقِّي  م  ن الْ  عيو ِ ب إنَّ  ما يعتَب  ر في ال  زو  جي ِ ن خَا  ص ً ة  دو  ن آبائِ ِ ه  ما , فَاب  ن اْلأَب  ر ِ ص كُفْ  ء
لِ  من أَبو  ها سلي  م . . . َقالَ الشِّ  رِبين  ي الْخَطي  ب :  واْلأَ  و  ج  ه  واْلأَ ْ ق  ر  ب أَنَّ  ه َليس ُ ك ْفئًا َل  ها لِأَنَّ  ها ُتعي  ر ِب  ه .  وَقالَ اْلَقا  ضي :
يؤَثِّ  ر في ال  زو ِ ج ُ كلُّ  ما يكْ  س  ر  سورَة التَّوقَا ِ ن .  وَقالَ الْ  مقْ د  س  ي  وال  ر  حيبان  ي  م  ن الْ  حنَابَِلة :  ويتَّ ِ ج  ه أَنَّ  ه  م  ما يْنب  غي
اشْتراطُ  ه في الْكَفَا  ءة فَقْ د الْ  عيو ِ ب الْ  مثْبَِتة لِخيا ِ ر اْلَف  س ِ خ ,  وَل  م ي ْ ذ ُ ك  ره أَ  ص  حابَنا , َل  ك  ن  عنْ  د اب ِ ن عقيلٍ  وأَِبي  م  ح  م  د أَنَّ  ه
شَر ٌ ط , َقالَ الشَّي ُ خ تَق  ي ال  دي ِ ن :  وَق  د أَومأَ إَليه أَحم  د : أَنَّ  ها َلا ُتزو  ج ِب  م  عي ٍ ب  وإِن أَ  را  د ْ ت , َف  عَلى  ه َ ذا ال  سلَام ُ ة  م  ن
الْ  عيو ِ ب  م  ن  جمَلة خصالِ الْكَفَا  ءة .  وَقالَ الْحَنفي ُ ة وأَكَْث  ر الْ  حنَابَِلة : َلا تُعتَب  ر في الْكَفَا  ءة ال  سلَام ُ ة  م  ن الْ  عيو ِ ب , لَك  ن اب  ن
 عاِب  دي  ن َنَقلَ  ع  ن الَْفَتا  وى الْحا  م  دي  ة , أَ  ن َ غير الْأَبِ  واْل  ج  د  م  ن اْلأَ  ولِيا  ء َل  و  ز  و  ج ال  ص  غيرَة  م  ن عنِّي ٍ ن مع  رو  ف َل  م ي  ج  ز ,
لِأَ  ن اْلُق  د  رَة  عَلى الْجِما ِ ع شَر ُ ط الْكَفَا  ءة كَالُْقد  رة  عَلى الْ  مه ِ ر  والنََّفَقة , بلْ أَ  وَلى , وَنَقلَ  ع  ن الْبح ِ ر أَ  ن اْل َ كِبي  رَة َل  و
.  ز  و  ج  ها الْوكيلُ َ غنيا  م  جبوبا جا  ز ,  وإِن كَا  ن َل  ها التَّْف ِ ري ُ ق ب  عدُ

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