Thursday, September 10, 2020

Application of HADD punishment on the Rich.

Assalaam Aleikum wa Rahmatullahi wa Barakatuh. (May Allah's Peace, Mercy and Blessings be upon all of us).

    One of the objectives of islamic law is the protection of human dignity, which is held in high esteem. Islam has clearly established principles guiding human conducts in all ramifications.

There have been misconceptions about the implementation of HADD (Fixed punishment) on the RICH, especially amputation of the hand of a person found guilty of theft.

The shariah is applicable to all irrespective of class; Poor or Rich because in Islam All human being are equal in the eyes of Almighty Allah the only distinction which Allah recognizes is the distinction in piety.

    Allah {S.W.T} says: “O mankind, verily we have created you from a single (Pair) of a male and a female, and have made you into nations and tribes, that you may know each other. Verily the most honored of you in the sight of Almighty Allah is the most righteous” (Quran, 49:13).

Islamic jurisprudence prescribed certain punishments in certain situations, most of these punishments were meant to act as deterrents. Islam forbids theft, forgery, usurpation, embezzlement, cheating, Riba, bribery etc.

In the case of theft, there are established prerequisites to be consider before carrying out punishment of amputation.

    Allah {S.W.T} stated in the Noble Qur'an Al-Ma'idah 5:38

    [As for] the thief, the male and the female, amputate their hands in recompense for what they committed as a deterrent [punishment] from Allah. And Allah is Exalted in Might and Wise.

preconditions before amputating the hand of a thief.

There are preconditions before amputating the hand of a thief. If any of these preconditions is not fulfilled, the hand should not be cut:

1. The thief must not have been compelled to commit theft.
2. The worth of the stolen object must be valued. The Prophet (peace and blessings of Allah be upon him) said: “The hand should be cut off for (the theft of) a quarter of a dinar or more.”
3. He must be a Muslim
4. The stolen property must be (legally) valuable.
5. The thief must have taken away the stolen property from proper place himself. If one takes out the thing from its safe place and another one takes it away, neither of the two can be punished for theft.
6. Eatables stolen during the times of famine do not make the thief liable for having his hands cut. It is narrated from Imam Ja’far as-Sadiq (R.A.) that he said: In the time of famine and draught the hands of a thief are not cut off for stealing edible items like bread and meat etc.
7. If one of the parties to a contract steals a property and claims that it rightfully belongs to him, he is not liable to be punished. (Emphasis mine)
8. The object should have been stolen from a place where the owner’s permission is required to enter. If a theft takes place in a public mosque or public bath, the thief does not have his hand amputated.
9. The thing should have been stolen from a secure place.
10. The thief must be sane. So if an insane person steals, his hand is not amputated.
11. If before a theft is proved, the thief goes to the judge and repents and promises not to steal in future he is saved from the punishment. Allah {S.W.T} says: Whoever repents to Allah, Allah forgives him, no matter how great his sin is. Allah Says: { Say: "O my Servants who have transgressed against their souls.
Despair not of the Mercy of Allah: for Allah forgives all sins: for He is Oft-Forgiving, Most Merciful."}
[Quran 39:53]
12. The thief must be an adult. Abdullah Ibn Sinan relates the following tradition from Imam Ja’far as-Sadiq (A.s): “When a minor child* *steals for the first and the second time he is *forgiven. If he does it for the third time he is* *issued a strict warning and beating. If he persists in his crime, the tips of his fingers are slightly cut and if he repeats the act, some more of his fingers are cut away.”*
13. The theft itself has to be proven, either by the testimony of two qualified witnesses or by the confession of the thief twice.

From the forgone preconditions, it is evidenced especially precondition No. 7, stealing of public property does not qualify for the application of HADD punishment of cutting off the hand of the person. But rather Ta'azir (judge discretionary punishment) according to the majority of the scholars. Because there might be possibility of him having shares in the stolen item. There is Maxim which states that “hudud are to be prevented when there are doubts”. The Maxim which root from the saying of prophet {S.A.W} "Set aside the execution of hudud punishments in cases of doubt (shubhah)."

However, The thief is not absolved of liability. Because, theft is ab initio a sin, a crime and eternally punishable even if one escapes the worldly sanction, certainly he won't on the day of reckoning because it infringe on the rights of the person(s) stolen from unless the victim forgives.

May Allah {S.W.T} Forgive us and Guide us Ahright.

MOHAMMED AWWAL
FACULTY OF LAW,
BAYERO UNIVERSITY KANO.
08130715456

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Monday, July 13, 2020

Rules governing marriage in Islam

By: AMBALI ABDULAZEEZ MUHAMMAD

In this article we shall be discussing the following:

RULES GOVERNING MARRIAGE CONTRACT BETWEEN CONTRACTING PARTIES: THE ISLAMIC PERSPECTIVE

THE OBJECTIVES OF MARRIAGE AS STATED IN THE GLORIOUS QUR’AN

PROHIBITED MARRIAGE IN ISLAM

PROHIBITIONS BASED ON CONSANGUINITY

PROHIBITIONS BASED ON SUCKLING

PROHIBITIONS BASED ON MARRIAGE

PROHIBITION BASED ON RELIGION

PROHIBITED MARRIAGE PARTNERS


*REQUIREMENTS OF A VALID MARRIAGE IN ISLAMIC LAW*


RULES GOVERNING MARRIAGE CONTRACT BETWEEN CONTRACTING PARTIES: THE ISLAMIC PERSPECTIVE

Generally, marriage in islam is a contract. Not just a domestic or social contract, but an enforceable one between the two contracting couples. According to an Islamic Jurist Ameer Ali, he said: " Marriage is an institution ordained for the protection of society, and in order that human beings may guard themselves from foulness and unchastity". Nikah in its primitive sense means carnal conjunction. Some have said that it signifies conjunction generally. In the language of the law it implies a particular contract used for the purpose of legalizing generation. Almighty Allah says in (Qur’an 30:21) thus;


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“And among His Sign is this, that He created for you wives from among yourselves, that you may find repose in them, and he has put between you affection and mercy. Verily, in that are indeed signs for a people who reflect”




Marriage is seen marriage as a legal relation between male and female with a sight to establishing a peaceful society. This is justifiable through the teachings of Islamic, the consensus of the jurist, and the text of the Glorious Qur'an. Contracting a marriage in Islam is easy but with strict procedures. For any sexual relationship to be halal, all the conditions precedent must be adhere to strictly.

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THE OBJECTIVES OF MARRIAGE AS STATED IN THE GLORIOUS QUR’AN




The objective of marriage are heterogeneous in nature , but the crucial part of it have been stated in the Glorious Quran as thus;




• One of the major essential of objectives of marriage in Islam is to ensure preservation of the human species and continuation of the human race as Almighty Allah stated in ( Quran 4:1) as thus;






"O mankind! Be careful of your duty to your Lord, Who created you from a single soul and from it created its mate and from them has spread abroad a multitude of men and women"




• Also To provide spiritual and legal foundation of the family and it can be seen in (Quran 30:21) as thus;






_"And of His signs is this: He created for you mates from yourself that you might find rest in them, and He ordained between you love and mercy. Lo, therein indeed are portents for folk who reflect_".




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PROHIBITED MARRIAGE IN ISLAM



There are some categories of marriage that are prohibited in islam. This can be traced back to the Arab Jahiliyyah period where a son could inherit his step mother upon the demised of the his father. With the coming of Islam, the Quran prohibited this practice. Marriage between people related in some way is subject to prohibitions based on three kinds of relationship. The following prohibitions are given from the male perspective for brevity; the analogous counterparts apply from the female perspective; e.g., for "aunt" and "uncle". The Quran states thus:




“O ye who believe! It is not lawful for you to inherit women forcefully. And do not marry women to whom you father has ever married except what has passed. Indeed it was lewdness, disbelief, and a bad way. Prohibited to you are your mothers, your daughters, your sisters, your paternal aunts, your maternal aunts, brother's daughters, sister's daughters, your mothers that are those who suckled you, your sisters from suckling, mothers of your women, your step-daughters in your guardianship from your women you have entered upon but if you have not entered upon them then there is no blame on you, women of your sons from your loins, and that addition of two sisters (in a wedlock) except what has passed. Surely God is Forgiving, Merciful.”
 Al-Quran, 4:19–23 [4]


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PROHIBITIONS BASED ON CONSANGUINITY




Seven relations are prohibited because of consanguinity, i.e. kinship or relationship by blood, viz. mothers, daughters, sisters, paternal aunts, maternal aunts and nieces (whether sister's or brother's daughters). In this case, no distinction is made between full and half relations, both being equally prohibited. Distinction is however made with step relations i.e. where both the biological mother and father of a couple wishing to marry are separate individuals for both parties, in which case it is permitted. The word "mother" also connotes the "father's mother" and "mother's mother" all the way up. Likewise the word "daughter" also includes the "son's daughter" and "daughter's daughter" all the way down. The sister of the maternal grandfather and of the paternal grandmother (great aunts) are also included on equal basis in the application of the directive.[5]


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PROHIBITIONS BASED ON SUCKLING




Marriage to what is sometimes described as foster relations in English are not permitted, although the concept of "fosterage" is not the same as is implied by the English word. The relationship is that formed by suckling from the breast of a wet nurse. This is what is meant by "fosterage" in Islam in the quotation below. In Islam, the infant is regarded as having the same degree of affinity to the wet nurse as (consanguinity). So when the child grow up, marriage is prohibited to those related to the wet nurse by the same degree as if to the child's own mother.




A reported hadith confirmed that fosterage does not happen by a chance suckling, it refers to the first two years of a child's life before it is weaned. SHEIK AMIN AHSAN ISLAHI writes that "this relationship is established only with the full intent of those involved. It only comes into being after it is planned and is well thought of".




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PROHIBITIONS BASED ON MARRIAGE

The daughter-in-law is prohibited for the father, and the mother-in-law, the wife's daughter, the wife's sister and daughters of the wife's siblings (nieces), the maternal and paternal aunts of the wife are all prohibited for the husband. However, these are conditional prohibitions:


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Only the daughter of that wife is prohibited with whom one has had conjugal contact.


Only the daughter-in-law of a real son is prohibited.


The sister of a wife, her maternal and paternal aunts and her brother's or sister's daughters (nieces) are only prohibited if the wife is in wedlock with the husband.



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PROHIBITION BASED ON RELIGION




Some of Islamic scholars and jurists unanimously prohibited Muslim to marry polytheist women especially the Almighty Allah says Quran 2: 221 also in Quran 60:10 as thus;




“Do not marry polytheist woman until she believes; a slave believing woman is better than polytheist women though she allures you; Do not marry (your girls) to polytheist man until he believes: A man slave who believes is better than an polytheist man, even though he allures you. They do (but) beckon you to the Fire. But God beckons by His Grace to the Garden (of bliss) and forgiveness, and makes His Signs clear to mankind: so that they may understand.”




“O ye who believe! When there come to you believing women refugees, examine (and test) them: God knows best as to their Faith: if ye ascertain that they are Believers, then send them not back to the Unbelievers. They are not lawful wives for the Unbelievers, nor are the Unbelievers lawful husbands for them.”




It is worthy of note that, It is lawful for Muslim men to marry Jewish or Christian women but not a polytheist woman (Quran 5:5).






PROHIBITED MARRIAGE PARTNERS




•Marriage between people of the same sex.




•Marriage between a man and his sister, half-sister, foster sister, mother, stepmother, foster mother, wife's mother, aunt, grandmother, great aunt, great-grandmother, etc.




•Marriage between a woman and her father, stepfather, husband's biological father, uncle, grandfather, great uncle, great-grandfather, etc.




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Marriage of a man with women who are sisters or stepsisters or foster sisters of each other (except if marrying one who was separated from her husband by divorce or death).




*REQUIREMENTS OF A VALID MARRIAGE IN ISLAMIC LAW*




In Islam, marriage is a conjugal Union between a man and a woman for lawful sexual relationship and procreation of legitimate children. However, for this to be lawful, there are put in place. This procedure as they are must be complied with for marriage to be lawful. The certain laws that govern the contract of marriage in Islamic law is the glorious Qur’an and Hadith of prophet Muhammad ( P.B.U.H). Scholars and jurists had diverse opinions on the requirements but the most unanimous ones and commandments of Allah in Holy Quran are the following that must be satisfied before marriage can be regards as valid contract in Islamic law are thus;




1. There must be a clear proposal from one side.




2. There must be a clear acceptance to enter into the contract of marriage.




3.There must be at least two competent witnesses than can testify to their agreement of marriage.




4. There must be a certain valuable gift from the side of bridegroom to the bride. {12} the Almighty Allah command in the glorious Quran as thus; “And give women their dowers freely.” {13} Abdur Rahim said: It is either a sum of money or other form of property to which the wife becomes entitled by marriage.


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*CONCLUSION*


The rules that governs Marriage in Islam are well enshrined in the Holy Qur’an, the Hadith of the noble prophet and consensus of Islamic scholars. For a contract of marriage to be valid in Islamic law, the parties to the contract are expected to meet up some certain criteria such as: Acceptance from the bride side, two competent eyewitness to the contract of marriage, payment of dowry from the bridegroom to the bride and lot more. Therefore, it is a requisite requirements for every Muslim to comply with this criteria for their marriage to be legal in Islam.

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Ambali Abdulazeez Muhammed is a student of law, at university of maiduguri, Borno state. He is C.E.O of LAW AMPHITHEATER, Ambassador of legal pacesetter to Unimaid, Co-founder of Maverick Concept, member of LASJOL and he is so much interested in poem, academic writing .To reach him, email: ambaliabdulazeez123@@gmail.com, or through this contact/whatsapp:08165658589

REFERENCES




{1} Ameer Ali, Mohammadan Law, students 7th edn, P. 97.





{2} Hedaya, P.25;


{3} Quran 4:22


{4} Quran 48:22–29


{5} Ghamidi, Javed Ahmad. Mizan: A Comprehensive Introduction to Islam. Lahore: Al-Mawrid.


{6} Muslim, Al-Jami‘ al-sahih, 616, (no. 3590)


{7} Al-Bukhari, Al-Jami‘ al-sahih, 912 (no. 5102)


{8} Muslim, Al-Jami‘ al-sahih, 619, (no. 3606)


{9} "Every relationship which is prohibited (for marriage) owing to consanguinity is also prohibited owing to fosterage" Malik ibn Anas, Al-Mu’atta, 395-396, (no. 1887).


{10} Amin Ahsan Islahi, Tadabbur-i Qur’an, vol. 2, 275.


{11} Malik ibn Anas, Al-Mu’atta’, 341, (no. 1600)


{12} The Noble Qur’an [4:4].


{13} Article “Family Law” by Muhammad Abu Zahar

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Friday, March 27, 2020

Judge and his responsibilities under shariah.


The judge and his responsibilities under shariah.

Islam has given a great important to justice which must be done at all cost.
Those who perform the function of the Qadis (judge) or Qadi al-Qudat (Chief judge) must be not only men of deep insight, profound knowledge knowledge of Sharia, but they must also be Allah-fearing fourth right, honest, sincere men of integrity.
The holy prophet muhammad may Allah peace and blessing be upon him said;
The judge are of three types;
One will go to paradise and the remaining two will end up in the fire of hell. The first group of person are those who knows the law and judge by it accordingly will enter paradise.
The second group are those who knows the law and did not followed it will go to hell.
The Third group of people are those who did not know the law and make judgement ignorantly without seeking the knowledge of the law also will go to hell fire.
His knowledge of Qur'an and Sharia must be very deep and that he judges justly. Otherwise, it can really rain a man's spiritual future in the next world.

The life in this world is only for a limited period while the life in the next world is for ever. Then why should one really undertake to be a judge when does not have the required qualifications and character to be a judge?

Should we shun our responsibility in accepting the position of a judge?
Although the responsibility of a judge or qadi are very great, it is essential that the learned jurist must accept the position of a judge in order to admire justice and save humanity from chaos, anarchy and law of the jungle.

The prophet said to Amir bin Al-As; "If the judge exercise ijtihad, and arrives at the correct decision he is doubly reworded, and if he arrives at a risk wrong decision, he is still rewarded singly provided he exercised ijtihad.

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The injunction on justice in the divine Revelations

There are number of Qur'anic injunctions commanding Muslims to do justice right from the beginning, Allah sent with his apostle three gifts which aim at rendering Justice and guiding the entire human society to the path of peace.
Justice which gives to each parson his due; and the strong arm of evil-doers.
Justice is a command of Allah, and whoever violates it faces grievous punishment. Allah subhanawo wataalah said in Qur'an Allah command justice, the doing of good, and charity to kith and kin, and He forbids all shameful deeds, and injustice and rebellion; He instructs you, that ye may receive admonition.

The prophet Muhammad was ask to tell people to do justice as the creator, the nourisher and cherisher command it; "Say: my Lord has commanded Justice. Justice must be done equally to all sundry even if it is to done against one's self one's parent, or relatives. Allah subhabawo wataalah said in Qur'an 4:135.

"O ye who believe! Be ye staunch in justice, witnesses for Allah, even though it be against yourselves or (your) parents or (your) kindred, whether (the case be of) a rich man or a poor man, for Allah is nearer unto both (them ye are). So follow not passion lest ye lapse (from truth) and if ye lapse or fall away, then lo! Allah is ever Informed of what ye do.

stand fairly to justice for a Justice is Allah attribute, and to stand firm for Justice is to be a withness to Allah, even it is determental to our own interest, as we conceive them, or the interest of those who are near and dear to us. According to Latin saying "let justice be done though heaven should fall".

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