ummtaalib Posted December 24, 2012 Report Share Posted December 24, 2012 <QUESTION> The general understanding is that it is prohibited in the Shariah for a female to travel without a Mahram under all circumstances and including for religious purposes such as hajj. Are there any exceptions to this rule? If a woman wishes to travel to another city for a religious conference/seminar without the company of a mahram male, would that be permissible? If she wishes to travel alone (or with a sister) to a Muslim country to undertake Islamic studies, would that be permissible? If she wishes to travel to visit her parents in the home country, but her husband or another Mahram cannot join, would she be able to travel independently? Is the rule to be applied differently in this age when most travelling, in flights etc., is done in collective groups? <ANSWER> In the name of Allah, Most Compassionate, Most Merciful, Generally, it is impermissible for a woman to travel the distance of three days (equivalent to 48 miles) without her husband or a Mahram (unmarriageable kin) accompanying her. There are many clear narrations of the Messenger of Allah (Allah bless him & give him peace) in this regard. 1) Sayyiduna Abu Sa’id al-Khudri (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “Let no woman travel for more than three days unless her husband or a Mahram is with her.” (Sahih Muslim) 2) Sayyiduna Abd Allah ibn Umar (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “A woman must not travel for three days except with a Mahram.” (Sahih al-Bukhari, no. 1036 & Sahih Muslim) 3) Sayyiduna Abu Huraira (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “It is unlawful for a woman who believes in Allah and the last day that she travels the distance of one day and one night without a Mahram accompanying her.” (Sahih al-Bukhari, no. 1038) 4) Sayyiduna Ibn Abbas (Allah be pleased with him) narrates that the Messenger of Allah (Allah bless him & give him peace) said: “'A woman must not travel except with a Mahram and a man must not enter upon her except if she has a Mahram.” (Sahih al-Bukhari, no. 1763) Imam Nawawi (may Allah have mercy on him) states in his monumental commentary of Sahih Muslim: “There are many such narrations that assert the impermissibility of a woman travelling without a Mahram. These narrations vary in their wordings. The narration of Ibn Abbas in Sahih al-Bukhari says that a woman must not travel without a Mahram, but it adds nothing else. However, the other narrations, in Sahih al-Bukhari and elsewhere, mention lengths of journeys for which a Mahram is required - some of the narrations specify three days, some two, some one, and some even less.” Imam Nawawi (Allah have mercy on him) also mentions that the difference found in these narrations is due to the different questioners and the places wherein the answers were given to them. al-Bayhaqi said: “It is as though the messenger of Allah (Allah bless him & give him peace) was asked regarding travelling for three days without a Mahram, and he refused. He was then asked about her travelling for two days, and regarding one day, etc and each narrator related from him what he heard.” (See: Commentary of Sahih Muslim by Imam Nawawi, 1015) According to the Hanafi Ijtihad, the distance that is considered here is three days and three nights, for the narrations mentioning three days & three nights have reached the level of certainty. All the Companions who narrated other than three days also narrate the distance of three days and three nights. The narrations that mention two or one day will be restricted to specific circumstances, such as the fear of more fitna. Hence, they (Hanafi School) considers the narrations that mention three days & three nights as the basis of prohibition. (Zafar Ahmad al-Tahanawi, I’la al-Sunan, V. 10, P. 11) It must be remarked here that this refers to the distance usually covered by walking or on an animal in three days & three nights (with the usual breaks for resting and eating). Therefore, the restriction of travelling with a Mahram applies if the distance of the journey exceeds this, even if the journey itself is accomplished in a shorter time. The scholars have differed on the length of this distance. Many scholars are of the opinion that it is 16 Farsakh, and each Farsakh equals three miles, thus totalling to 48 miles. (See: Faydh al-Bari ala Sahih al-Bukhari, 2/397) Thus, the Hanafi Fuqaha are very clear, in that a woman must not travel to the distance of three days without her husband or Mahram accompanying her. The great Hanafi Jurist, Imam al-Kasani (Allah have mercy on him) states: “One of the conditions for the permissibility of a woman travelling for Hajj is that she is accompanied by her husband or a Mahram. If neither of them is accompanying her, then Hajj will not be obligatory. Our (Hanafi school) proof is what Ibn Abbas (Allah be pleased with him) narrated from the Messenger of Allah (Allah bless him & give him peace) that he said: “Verily, a woman must no travel for Hajj except that her Mahram is accompanying her”. The Messenger of Allah (Allah bless him & give him peace) also said: “A woman must not travel except that her Mahram or Husband is with her”. Also, a woman is unsafe if her husband or Mahram is not accompanying her, and this is the reason why it is even impermissible for her to travel on her own (meaning, not in the company of a stranger, m), and this fear (of their safety, m) is increased when they are in a group. This is the reason why it is impermissible for a man to be in seclusion (khalwa) with a non-Mahram woman even if she has another woman accompanying her.” (Bada’i al-Sana’i, 2/1230) It is stated in al-Fatawa al-Hindiyya: “One of the conditions for a woman, whether young or old, to a able to travel for Hajj is that she is accompanied by her Mahram if the distance between her and Makkah is of three days. If the travelling distance is less than that, then she will perform Hajj without her Mahram.” (al-Fatawa al-Hindiyya, 219) Imam al-Haskafi (may Allah have mercy on him) also states the same ruling in his renowned Durr al-Mukhtar, on which Allama Ibn Abidin (may Allah have mercy on him) commentates with the following: “It is impermissible for a woman to travel the distance of three days and three nights. However, it will be permissible for her to travel the distance which is less than that without a Mahram because of need. It is reported from Abu Hanifa and Abu Yusuf (Allah have mercy on them both) that they disliked the travelling of a woman on herself even to the travel distance of one day and one night, and the Fatwa should be on this opinion due to the widespread immorality. This is also affirmed by the Hadith recorded in Sahih al-Bukhari and Sahih Muslim: “It is Impermissible for a woman who believes in Allah and the last day that she travels the distance of one day and one night except with a Mahram accompanying her”. However, it is stated in al-Fath (fath al-Qadir of Ibn al-Humam, m): “When the relied upon opinion is the first (i.e., distance of three days and three nights, m), the husband does not have a right to prevent her from performing Hajj if the distance between her and Makkah is less than three days.” (Radd al-Muhtar ala al-Durr al-Mukhtar, 2/465) The above excerpts from the major reference books in the Hanafi School clearly indicate the impermissibility of a woman travelling without her Mahram or Husband. So much so, that we see Ibn Abidin (A major authority) stating that due to widespread immorality and corruption in his time, a woman should not even be allowed to travel the distance of one day (even though, the fatwa is on three days and three nights/48 miles). If that was the case in his time, what would the ruling be in our age? It should be remembered here, that the basis for this ruling is not an evil assumption about the woman and her manners, as some people unreasonably think, but it is to take care of her reputation, dignity and safety. It is to protect her from the desires of those who have diseased hearts, from the assault of an immoral person or a thief. Some contemporary people argue that travelling in modern times have changed from how it was in the time of the Messenger of Allah (Allah bless him & give him peace). It is incumbent upon us to look at travelling in our time. It is not like how travelling was in the past. It is not filled with the dangers of the waterless deserts, encounters with thieves, highway robbers, etc. Now travelling is by various modes of transportation that usually gather large amounts of people at a time, such as planes, cars, buses, ships, etc…Thus, this provides plenty of confidence and reliability, removing feelings of fear for the woman, because she will not be by herself in any place, and the principle of Islamic Jurisprudence states: “Rulings change due to the changing of times”. Also, some classical scholars have made exceptions with regards to the impermissibility of women travelling in that they may travel in a group, or if there is no fear or risk of Fitna, it would be permissible. The above understanding is incorrect due to many reasons, and the permissibility of women travelling without a Mahram can not be justified on its basis. Firstly, the principle of Islamic jurisprudence quoted above is surely an accepted theory among the classical Fuqaha, but one needs to understand the concept behind this principle. The meaning of “laws changing” is not that the laws of Shariah will change in accordance with the time and era, rather, laws that are based on custom and habit (urf ) or the rules of Fiqh which are based on juristic opinion (ra’i) or Ijtihad have often been formulated in the light of prevailing custom. It is therefore permissible to depart from them if the custom on which they were founded changes in the course of time. Rulings that are based upon clear texts of the Qur’an and Sunnah can never change. The scholars of Usul al-Fiqh stipulate that a custom or a practice which is contrary to the text of the Qur’an and Sunnah is an unacceptable custom (urf al-Fasid). (See: Ibn Abidin, Nashr al-Urf fi bina ba’d al-ahkam ala al-urf, P. 115) Secondly, there is a difference between legal Wisdoms and legal Reasons. The rulings of Shariah are always based on the reason (illa) and not the wisdom (hikma) behind it. An example for this is that the wisdom behind the prohibition of wine and alcohol is that it creates enmity and hatred between people and it hinders one from the remembrance of Allah. The reason, however, is that it is an intoxicating substance. Now, if one was to say that wine will be Halal for me, as I will lock myself up after drinking wine, thus no destruction will be caused. Any sane person will conclude that he is wrong, as wine is Haram whether you cause any destruction and damage to others or not. The reason being, that the cause for the prohibition of wine is that it intoxicates you, regardless of whether the wisdom is present or not. (See: Usul al-Iftaa & other usul books). This can be understood more clearly with an example from our day to day life. The law states that the driver must stop his car when the lights are red. The wisdom behind this ruling is that it stops and prevents accidents. However, the reason (illa) for this ruling is the lights being red. Now, a driver who is driving in the middle of the night sees that the light is red, but does not see any sign of a car. If the law was based on the wisdom (which is to prevent accidents), then it would be permissible for his to drive through the red light. However, as it is common knowledge, that despite there being no possibility of an accident, he must stop his car otherwise he will be arrested if caught, for the law is based upon the reason and not the wisdom. The same is with women travelling without a Mahram. The wisdom behind this ruling is surely to save her from the dangers that can be encountered in the journey. However, this is not the legal reason. The reason (illa) is her travelling the distance of three days and three nights, thus whether the journey is safe, in a plane or on foot, it will remain impermissible. This is very similar to the ruling of shortening the prayers whilst on journey a (qasr). The wisdom behind the ruling is undue hardship (mashaqqa); however, this is not the reason. The reason is the travelling distance of three days and three nights. Therefore, all the Hanafi scholars (classic and contemporary) have declared that it is incumbent upon a traveller to shorten the fardh prayers, even if one was in a perfectly comfortable journey. We don’t see people suggesting that the prayers must not be shortened due to the modern day means of transport! Thirdly, if one was to look at the exceptions made by some of the classical scholars of the other schools of thought, it would be evident that these exceptions and dispensations are only in relation to the journey of Hajj. The reason for this is that there has been a lot of emphasis in the Qur’an and Sunnah regarding the obligation of Hajj, thus we have two types of texts that apparently contradict one another. However, this can never be generalized to all types of journeys. For example, Imam Nawawi, the great Shafi’i jurist (may Allah have mercy on him) states in his monumental commentary of Sahih Muslim: “There is a consensus (ijma’) of the Ummah that it is obligatory upon a woman to perform Hajj if she is able to do so, due to the general nature of the verse: “Pilgrimage to the house of Allah is a duty men owe to Allah for those who can afford the journey” (Ali Imran, 97), and because of the Hadith “Islam is based on five things”. However, scholars differ as to whether a Mahram is a pre-requisite for a woman to perform the Hajj. Abu Hanifa (Allah have mercy on him) considers it a condition for the Hajj to be obligatory unless the distance between her and Makkah is less than three Marahil. His opinion is also endorsed by a group of Hadith scholars, people of ra’i, Hasan al-Basri and Nakha’i (Allah have mercy on them all). However, Ata, Sa’id ibn Jubayr, Ibn Sirin, Malik, al-Awzai’i, Shafi’i (Allah have mercy on them all) say that a Mahram is not a pre-requisite in order for her travelling to Hajj; rather the condition is safety in the journey. Some of our (Shafi’i) scholars have said: “Safety will be acquired with the husband, Mahram or a group of trustworthy women, and Hajj is not obligatory if one of these three is not found. Therefore, if there was only one trustworthy woman, Hajj would not be obligatory, but to perform Hajj will be permissible. This is the correct opinion…… Our (Shafi’i) scholars differed as to the ruling of her travelling for optional Hajj, visiting family and friends, for business or other such journeys that are not obligatory. Some said: “It will be permissible for her travel for these causes with a group of trustworthy women just as this is permissible for the obligatory Hajj. However, the majority of the scholars (jumhur) state that it is impermissible for her to travel unless accompanied by her husband or Mahram, and this is the correct opinion due to the authentic and established narrations. Qadhi Iyad (m: a major Maliki scholar) said: “All the scholars have agreed on the fact that a woman can not travel besides Hajj and Umrah except in the company of her Mahram, with the exception of migrating from Dar al-Harb, for the reason that it is unlawful (haram) for her to remain in the lands of the Kuffar,” (Nawawi, al-Minhaj sharh Muslim ibn al-Hajjaj, P. 1015, Dar ibn Hazm, Beirut) The above excerpt of Imam Nawawi (may Allah have mercy on him) indicates that the dispensation given for a woman to travel in a group of upright and trustworthy women or with one upright woman is only in the journey of Hajj. The great Maliki scholar, Qadhi Iyad (from whom Imam Nawawi quoted) relates the consensus of all the scholars. Imam Nawawi (may Allah have mercy on him) confirms this in his al-Majmu’ where he states: “The second opinion (in the Shafi’i school) is that a woman must not travel for other than Hajj without a Mahram, and this is the correct opinion and clearly related from Imam Shafi’i himself in his al-Umm. The reason is that to travel for other than Hajj is not obligatory.” Thereafter he quotes all the narrations that have been narrated from the Messenger of Allah (Allah bless him & give him peace) in this regard. (See: Kitab al-Majmu’ Sharh al-Muhazzab, 7/460) The Maliki Madhab is also quite clear on this. We have already cited the opinion of Qadhi Iyad in Imam Nawawi’s commentary. Also, one of the major authorities in the Maliki school, Imam Dasouqi (may Allah have mercy on him) sates: “If the journey is obligatory (like Hajj, m), it will be permissible for her to travel in the company of a Mahram, husband or a group of trustworthy and upright people. If the journey is recommended (mandub, and not obligatory), then it will be permitted for her to travel with only her husband or a Mahram and not in a group,” (Hashiya al-Dasouqi ala Sharh al-Kabir, 2/14) The Hanbali School is similar to the Hanafi School, in that a woman must not travel without her Mahram accompanying her even for the auspicious journey of Hajj. Imam al-Bahuti (may Allah have mercy on him) states: “If a woman performed Hajj without a Mahram, this will be unlawful (haram) for her, although the obligation of Hajj will be lifted.” (Kashaf al-Qina ala matn al-Iqna, 2/213. Also see: Ibn Qudama, al-Mugni, 3/236-237) The foregoing is clear in determining that none of the four major Fiqh schools of thought permit a woman to travel without her husband or a Mahram in a journey besides Hajj. The Shafi’i and Maliki schools give a dispensation in that she may travel only for Hajj in a group of trustworthy and upright women (or one woman, according to some) given the importance and significance of the ritual of Hajj. Therefore, it will not be permissible for a woman to travel over 48 miles in order to visit her family and friends, acquire knowledge or any other social reason. It is also strictly impermissible in the Hanafi and Hanbali schools for her to travel for Hajj, and permissible with a group of upright women, however, in the Shafi’i and Maliki schools. Some try to justify women’s travelling with the Hadith where the Messenger of Allah (Allah bless him & give him peace) mentioned that a woman will travel and perform Tawaf of the Ka’ba without a husband with her (Sahih al-Bukhari). This Hadith seems to suggest the permissibility of women travelling alone, but it needs further, more precise analysis. The Shafi’i school, for example, considered this Hadith as evidence that a woman may travel for Hajj without a Mahram if the journey is safe. The Hanafi jurists, however, pointed out that this Hadith is an account of something which is going to happen, and as such is not a sign of its approval or permissibility. In any case, it seems very shaky to deduce a general permissibility of a woman travelling alone in safety just from this hadith, especially in view of all the other evidences. (See: Fath al-Bari, Umdat al-Qari & I’la al-Sunan). It must be remarked here that the Shariah principle is that unlawful things become permissible in case of necessity, such as consuming pork becomes permissible when one fears death out of hunger. Contemporary scholars have given a dispensation in that if a woman does not have a Mahram (for one reason or another) and she is in a dire situation, then it will be permissible for her to travel. One of the great contemporary scholars, Shaykh Mufti Muhammad Taqi al-Usmani (may Allah preserve him) states: “However, in the case of a woman who has neither a husband nor a father, nor does she have some other relative who could support her financially, nor does she have enough funds to take care of her needs, it would, under this situation, become permissible for her to go out of the house under legal hijab and earn her living to the limit of her need. Now, when this purpose can be easily achieved while living in one's own country or city, then there is no need to travel to a foreign land. If there is no other way for her, but to travel to another city, and she does not have any Mahrams, then only in this situation it will be permissible for her to take the opinion of Imam Shafi’i and Imam Malik, for they have given permission for her to travel with a group of trustworthy women.” (Buhuth fi qadhaya fiqhiyya al-mu’asira, P. 338) I would like to add here that, as we have seen, the Shafi’i and Maliki schools have only given a dispensation in travelling for Hajj, thus this dispensation would be based on the concept of necessity. Finally before parting, it would be wise to mention, that a woman's Mahram is a permanently non-marriageable male relative of hers. According to the majority of scholars, his being a Muslim is not a condition. It is stated al-Fatwa al-Hindiyya: “A Mahram is the husband and those for whom it is permanently unlawful to marry the woman, whether this is due to blood relationship, fosterage, or marriage (such as the father in-law, m). It is a condition that he is trusted, sane, and has reached puberty (baligh), whether he is free or a slave and regardless of whether he is a Muslim or a unbeliever. However, if he is a fire worshiper who considers marriage with relations and family members lawful, then she should avoid travelling with him. A boy who is close to puberty will be considered to be mature.” (al-Fatawa al-Hindiyya, 1/219) And Allah knows best [Mufti] Muhammad ibn Adam Darul Iftaa Leicester , UK Link to comment Share on other sites More sharing options...
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