Fatwa of female Yemeni jurists: What Huda has done is contrary to religion and custom

Fatwa, posted 12.5.2013, from Yemen, in:
Fatwa of female Yemeni jurists: What Huda has done is contrary to religion and custom

Background: In October 2013, 22-year-old Saudi Huda Abdullah al-Niran left her family in the south-western village of Muhayil and crossed into Yemen with 25-year-old Yemeni Arafat Muhammad.  Huda and Arafat had met three years before while Arafat was a migrant worker in Muhayil.  The two fell in love but were denied the possibility of marriage by Huda’s parents, who claim that Arafat used magic on their daughter.  Both young people were charged with illegally crossing the border, and their cause quickly spread on regional social media as the couple became known as “Romeo and Juliet” and hundreds of protestors gathered outside the court chanting “We are all Huda.”  The courts dropped the charges against Arafat as Huda applied for asylum, which the UNHCR granted.

Formed in February 2013 out of the Association of Yemeni Ulema’ and its women’s division, the Muslim Foundation for Development (usually referred to as the Muslim Foundation) is composed largely of sheikhas from the Al-Iman University headed by Abdul Majid al-Zindani.  The Muslim Organization itself is headed by Zindani’s daughter, Asma al-Zindani, and seeks to organize the role of Muslim women in accordance with the rulings of sharia to build a pioneering Islamic society.  In addition, the group seeks to incorporate the Islamic viewpoint on women’s issues into the House of Representatives and to increase awareness among men and women on women’s rights and responsibilities.  It has hosted several seminars and conferences on these topics at Al-Iman University.  Other members beside Asma al-Zindani include Taqiya al-Ahmar and Ibtisam al-Thafri.

Main points:

  1.  If Arafat was an appropriate match for Huda in terms of religion, character, and lineage, and Huda’s father did not need her housework or salary, and there was no bigotry between Arafat’s and Huda’s family, then Huda’s family sinned in preventing the marriage.
  2.   Huda had the right to bring the matter to court and seek help from the ulema’, but she did not exercise this right.
  3.   Fleeing the family home can be lawful if a woman’s life or honor are at stake and she has no one to protect her, or if she is fleeing a disbelieving family to come to Islam, but these conditions were not met.  Huda acted wrongly in leaving her family’s house and exposing herself to danger by travelling alone.
  4.   Because the original state of Islam was of one umma, Muslims have the right to cross borders and receive asylum in other Muslim countries.
  5.   Huda’s family should receive her back and not punish her, as this ordeal has been punishment enough.
  6.   Arafat must make matters right with Huda’s family, as he has inflicted intense suffering on them.
  7. The media should beware of spreading information and rumors which tarnish honor.

 

Translation: Ten female Yemeni jurists representing different sects, including Sheikha Asma al-Zindani, issued a statement including their learned views on Huda and Arafat.  In it, they explained the ruling of prevention and fleeing, then closed it with an important message to Huda, Arafat, Huda’s father, the media, and finally to the young men and women…Nashwan News publishes the text of the statement:

In the name of God the merciful the compassionate.

A statement from the Council of Female Jurists in the Muslim on the matter of Huda and Arafat.  Thanks be to God who by his blessings fulfills righteousness, and prayers and peace be upon our Prophet Muhammad, the prayers of God be upon him and his household and his companions, and peace.

After much talk and clamor about the story of the Saudi girl Huda fleeing from her father’s house, and after an organization of Muslim women and female experts established all the facts pertaining to her situation and her story, the Council of Female Jurists in the organization issued the following statement:

First: the ruling of preventing the guardian from marrying his daughter to someone suitable.  Forbidding a girl from marriage to an equal is not a consensus ruling, for God Almighty said, “Do not prevent the females,” (Surat al-Baqra 232) and again in Surat al-Nisa’ 19, and “prevention of women” is preventing a woman from marrying her equal if she asks it and they both desire it.

Second: knowing the equal who should not be refused if he engages the girl.  According to the Lisan al-Arab and other dictionaries, appropriateness in marriage is that the husband be the woman’s equal in lineage, religion, heritage, and family.  Appropriateness is the right of both the woman and her guardian, and is not one condition among others for validity of marriage, and so shari’a urges marriage to a fiancé of religion and character, as the Prophet of God (PBUH) said, “If someone comes to you and you are pleased with his religion and character, then marry him.” (al-Tirmidhi 6/62, Hadith Hassan)

Third: when can the father or guardian prevent marriage?  The guardian can prevent it if the suitor if appropriate but the guardian forbids the daughter from marriage to him because of:

  1. Bigotry or scorn from the clan or tribe of the suitor.
  2. The guardian’s desire for the daughter’s salary if she was working.
  3. Usefulness of the girl’s work at home and what relates to it, in which case the guardian may prevent marriage.

Fourth: the ruling of prevention and what the girl is entitled to in the case of prevention.  Prevention is a kind of forbidden oppression, and it is not for the guardian to force her to marry someone who doesn’t please her or prevent her from marriage to someone who does please her, if the suitor is appropriate according to the consensus of the imams, but rather it is the people of ignorance and oppression who force her or prevent her.  The girl is entitled to raise her matter before a ruler, and if the prevention remains, her marriage is moved to the furthest guardian or to the ruler, that the ruler may order her marriage, for the Prophet (PBUH) said, “There is no marriage but by a guardian and two just witnesses, and any other marriage is false, for if you quarrel then the ruler is the guardian of those without a guardian”  (al-Badr al-Munir 7/475, and this is the most correct version).  This is because a guardian may unjustly impede the girl’s right to marry an appropriate person of her choice, and this injustice must be removed.  If this were realized in the case of Huda’s guardian, then her father committed a sin in unjustly preventing her daughter from marrying Arafat if he was established to be an appropriate match for her.  Huda had the right to raise her matter before a court in order to prove her father’s having prevented this and to seek help from the ulema’ of the kingdom and other notables.

Fifth: the ruling of the girl’s fleeing her guardian’s home, and on this various matters as follow:

First: In some cases, fleeing can be obligatory.  For the female who is fleeing from home to escape from a person threatening her with death or fornication and who has no one around to protect her, fleeing is necessary to save herself and preserve her honor.

Second: A girl’s fleeing from the house of her guardian and supporter is forbidden by consensus of the ulema’, if there was a suspicion or charge of encountering corruption in the matter.  Thus, the girl Huda committed a sin in the following ways:

  1. Her fleeing from her father’s house and leaving it at night, exposing herself to danger.
  2. Her travelling alone without a close relative.

So Huda must repent before her Lord and restore the rights she devalued of her father, mother, and family.  We suggest that she return to her family by means of a Yemeni-Saudi committee of the learned and notables, in order that she may solve the matter with her family in a way best for both sides, and perhaps God may bring about another matter after that.

Sixth: the right of girls to humanitarian asylum.  The original state of Islam is one in which Dar al-Islam is one nation for all Muslims, so the right of a Muslim to move from one area of it to another or emigration between them must not be fettered, but rather it is incumbent upon every Islamic country to allow entry to any Muslim moving or emigrating to it without being bound by political borders.  The reality of our times runs contrary to the original age.  In the Noble Quran and the prophetic sunna, much evidence is found which points to those who were forced by circumstances to emigrate and seek protection, and so God Almighty gave the oppressed person the right of asylum in another country, as the Almighty said, “Oh my servants who believe, my earth is wide, so worship only me” (al-Ankaboot 56).  The Prophet of God (PBUH) emigrated from Mecca because of persecution to Medina.  In contrast, Islam granted the right of “leasing” (granting safety to the one who comes to them seeking asylum), and in this is justification for Muslim women granting safety to the one who comes to her seeking asylum.  The Prophet of God (PBUH) said, “Indeed the woman brings to the tribe, meaning she grants sanctuary to Muslims” (Sahih Bukhari).  And the Prophet (PBUH) said to Umm Hani when she gave asylum to her disbelieving in-laws, “We guaranteed whoever you guaranteed, and we gave sanctuary to whoever you gave sanctuary to” (al-Mahthab 7/3624).

[The exclusion of women from being sent back to their disbelieving families after their being examined]

An agreement was concluded with the Prophet of God (PBUH) after the settlement of Hudaybia, according to which text children of disbelievers would be returned to their families.  So the Prophet (PBUH) returned Abu Jundal to his father Suhail bin Amr.  Um Kulthum bint Uqba bint Abi Mu’ayit came to him so God Almighty sent down the following: “Oh those who believe, if female believers come to you in emigration, examine them for God knows their faith, and if you know them to be believers, then do not send them back to the disbelievers” (Surat al-Mumtahina 10).  And Ibn Abbas said: “Her examination: that she adjure that she left because of her husband’s hatred and not infatuation with a Muslim man, dislike of the land, a misdeed she caused, or to request earthly things, and that she left only out of desire for Islam and out of love for God and his Messenger.”  He said, “So the Messenger (PBUH) made her swear this, and she swore, so he did not turn her away” (Tafsir al-Baghawi).  Huda did not flee in order to escape the religion imposed by a disbelieving family which forced her to service to another than God, and leaving the true religion, and she did not make use of legal channels when it was her right to take to court those who forbade her marriage to someone appropriate.  Therefore, her travelling was a sin and her fleeing was not lawful.

And finally: to Huda’s father and her family: Huda remains your daughter and you bear a pious duty for her safety, so do not leave her in the tempestuous sea into which she cast herself.  What has happened to her is enough of a discipline, so you must not physically abuse her by restricting her life or otherwise.

To Arafat: according to the noble Islamic character, it is incumbent upon you to satisfy the girl’s family, for the harm they have suffered from the flight of their daughter is very great.  You would not be satisfied with such grief in the future, nor would you be satisfied if it happened it your sister.

To Huda, our sister: Indeed, what you have done goes completely against religion and custom, and Islam has given you the right to bring your matter to court in order to have oppression removed from you.

To the media: Who is the beneficiary of tarnishing the signs of modesty in our societies and destruction of the walls of propriety and making girls rebel against guardianship of their affairs?  Heed God who said, “He does not speak an utterance but that an observer is ready.”

To the young men: Before chanting slogans, going out into the streets, and publishing pieces, ask yourself for a couple moments: Are you making them pleasing to your brothers and daughters?!  The Messenger of God (PBUH) said, “Out of pardon for the women of the people, pardon your women; out of honor to your fathers, honor your sons” (the small collection of Siyuti 5443).

To the young women: The basis of marriage is tranquility and stability…so do not be misled, oh daughter of Islam, by delusions or what is broadcast in the media.  Experiments have proven the failure of many marriages established on bases contrary to the teaching of religion.

And finally: to the one who seeks happiness, the Almighty says: “Anyone, male or female, who does good works and is a believer, indeed we grant them a good life and reward them with the best they can conceive of” (Al-Nahl 79).  Oh God, we ask guidance, piety, chastity, and wealth for the Muslim young men and women, and that you desire for them righteous husbands and wives.  Praise your Lord, the Lord of Glory, for what they praise and peace be upon the senders, and praise be to God, Lord of the Worlds.

And praise be to God who in his grace fulfills righteousness.

Published by the Council of Female Jurists in the Muslim Foundation, November 27, 2013.

أصدرت عشر فقيهات يمنيات يمثلن مختلف المذاهب بينهن الشيخة أسماء الزنداني، بيانا تضمن رأيهن العلمي حول قضية هدى وعرفات وبيّنّ  فيه حكم العضل والهروب، ثم ختمْنه برسائل هامة الى كل من عرفات وهدى ووالد هدى والإعلام واخيرا الشباب والشابات.. نشوان نيوز ينشر نص البيان:

 

بسم الله الرحمن الرحيم

بيان من مجلس الفقيهات في منظمة مسلمة حول قضية هدى وعرفات. الحمد للهِ الذي بنعمته تتم الصالحات ، والصلاة والسلام على نبينا محمدٍ صلى الله عليهِ وعلى آله وصحبه وسلم..

 

أما بعد :

فبعد أن كثر الحديث واللغط في قصة هروب الفتاة السعودية هدى من بيت أبيها، وبعد تثبت منظمة مسلمة ومعرفة كل ما يتعلق بقضيتها وقصتها ، أصدر مجلس الفقيهات في المنظمة البيان التالي:

 

أولا: حكم عضل الولي من تزويج ابنته بالكفء. لا يجوز بإجماع ، منع الفتاة من الزواج بالكفء ، لقول الله تعالى:{ فَلاَ تَعْضُلُوهُنَّ} [سورة البقرة/ 232]ولقوله عز وجل:{ وَلَا تَعْضُلُوهُنَّ }[ النساء /19 ] و عَضَلَ المرأَةَ : منع المرأة من التزويج بكفئها إذا طلبت ذلك ، ورغب كل واحد منهما في صاحبه.

 

ثانيا: معرفة الكفء الذي لا يجوز رده إذا خطب الفتاة. جاء في لسان العرب وغيره : الكفاءة في النكاح أن يكون الزوج مساويا للمرأة في حسبها ودينها ونسبها وبيتها.[لسان العرب (1/139)]. والكفاءة حق للمرأة ووليها ، وليست شرطا من شروط صحة النكاح ،وقد حثت الشريعة على تزويج الخاطب صاحب الدين والخلق ،كما قال رسول الله صلى الله عليه وسلم :" إذا جاءكم من ترضَونَ دينَهُ وخلُقَهُ فأنكِحوهُ" [للترمذي- 6/62-حديث حسن].

 

ثالثا: متى يكون الأب أو الولي عاضلا؟ يكون الولي عاضلا إذا كان الخاطب كفؤا وامتنع ولي الفتاة من تزويجها به ، بسبب : 1-التعصب واحتقار قبيلة وعشيرة الخاطب. 2-طمع الولي في راتب ابنته إذا كانت تعمل. 3-الاستفادة من خدمة الفتاة في البيت وما شابه ذلك ، فهنا يكون الولي عاضلا.

 

رابعا: حكم العضل وما يحق للفتاة حال عضلها. العضل نوع من الظلم المحرم ، فليس للولي أن يجبرها على نكاح من لا ترضاه ، ولا يعضلها عن نكاح من ترضاه ، إذا كان كفؤاً باتفاق الأئمة ، وإنما يجبرها ويعضلها أهل الجاهلية ، والظلمة. ويحق للفتاة أن ترفع أمرها إلى الحاكم ، فإذا ثبت العضل ، انتقل تزويجها إلى الولي الأبعد ، أو إلى الحاكم ، فيأمر الحاكم بتزويجها ، لقوله صلى الله عليه وسلم :" لا نكاحَ إلا بوليٍّ وشاهِدَي عدلٍ ، وما كان من نكاحٍ على غيرِ ذلك فهو باطلٌ ، فإن تشاجروا فالسلطانُ وليُّ من لا وليَّ له"[البدر المنيرلابن الملقن - 7/475-وهذه الرواية أصح طرقه]؛ وذلك لأن الولي قد امتنع ظلما من حق البنت في الزواج بالكفء الذي تريده ، فوجب إزالة الظلم عنها. فإن تحقق هذا في ولي الفتاة هدى فقد ارتكب أبوها إثما بظلم ابنته من الزواج بعرفات إن ثبت أنه كفؤ لها. وكان لهدى الحق في رفع قضيتها إلى المحكمة لتثبت عضل والدها لها مستعينة بعلماء المملكة وغيرهم من الوجهاء.

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