Part 3

27 S.ab_eeb_Muslim [Eng. trans!. 21769-773].

21 29 ofou r Lord for the

saying of a woman, when we know not ifshe has remember ed or I

The point in this, is that the Chief ofthe Believers 'Umar didnot have any confide ncein the authenticity ofthis particular piece of evidence. So ju s t as this can happen to 'Umar or any other person from amongst the Companio ns and their successors, it can equally happen to those afterthem from amongst the students ofthe successors and so on until ou r present time; in fact, this will carry on reoccurring until the Day ofJudgment, i.e., that a person holds no trust in the authenticity ofa particular evidence.

There are numerous examples from the statements ofthe scholars; where we noticethat some scholars regard a certain b_adeeth as authentic, so they give ju d gment in accordanceto it. Whilst others see it as being weak so do not consider it, du e to a lackoftrust as to whether it actually is reported from the Messenge r ofAllaah ( ).

29 The verse 'Umar, rad_iyallaahu 'anhu, is referring to is, " ... and do not tu r n them ou t oftheir (hu s bands') homes, nor shall they (themselves) leave unless they are guilty ofopen lewdness ... " [Soorah at-Ialaaq(65):1]

22 The l!adeeth was known to the scholar bu t he didnot recollectit.

How exalted is He (Allaah) Who does not forget! How many people finda h.adeeth has slippedfrom their minds or even a verse from the Qur' aan?

The Messenger ofAllaah (~) leadhis Companions in Prayer one day and he missed out a verse forgetfully. 'Ubay y Ibn Ka'b was present with him, so when the Prophet finishedpraying he said (after 'Ubay y informed him): "Why did you not remind me of it (during prayer)?"30

Note that this incidentinvolves the one to whom revelation is sent down!

Additionally, his Lord said to him,

We shall cause you to recite the Qu r 'aan so that you do not forget (it), except what Allaah wills; He 31 knows what is evident and what is hidden.

An example for this category is an incidentinvolving 'Umar Ibn al-Khattaab and 'Ammaar Ibn Yaasir, rafi.iyallaahu 'anhum. The Messenger ofAllaah had sent them on an errand. On their journey one morning, both ofthem awoke in a state ofjanaabah. 'Ammaar exercised his judgment and saw that the purifying actionofthe earth

30 Musnad ofImaam Ahmad & Aboo Daawood [Eng. transl. 1!231/no.907].

23 I was the same as that ofwater. So he rolledaround on the earth ju s t as an animal would, in order to completely cover himself with the earth ju s t as it would have been compulsory for him to cover his entire body with water; he then prayed. As for 'Umar, he did not pray.

They laterapproached the Messenger ofAllaah who informed them ofthe proper manner ofaction. He said to' Ammaar: "It would have been enough for you to do this with your hands: the Prophet struck the ground with his hands once, wiped his left hand on top of his 32 right hand, then he wiped his palms andface."

'Ammaar used to relatethis incidentbefore and during the caliphate of 'Umar. One day, 'Umar su m moned for him and said: "What is this b.adeeth which you keep relating?" So 'Ammaar informed him and said: 'Do you not remember when we were sent by the Messenger on an errand and the state ofjanaaba h befellboth ofus. As for you, you didnot pray, and I rolledabout on the earth (then prayed) and the Messenger toldus: "It would have been enough for you to do so and so ... " Bu t 'Umar didnot recallthis and remarked: "Fear Allaah 0 'Ammaar!" So' Ammaar said to him: "If you so desire, as Allaah has made binding my obedienceto you, I will stop narrating this incident."'Umar replied:"We leave you to that which you have adopted." i.e. relate it to the people.

So 'Umar had forgottenthat the Prophet allowed tayammum forthe one in the state ofjanaabah, ju s t as it is allowed for the one who is in the state ofminor defilement.

32 S.ab.eeb. al-Bukhaaree [Eng. transl. 11208/no.343] and S.ab.eeb. Muslim [Eng. trans I. 11202/no. 716].

24 on this subject broke out between him and Aboo Moosa. During this dispute Aboo Moosa mentioned 'Ammaar's statement to 'Umar, upon which Ibn Mas' ood said: "Did you not see that 'Umar was not convinced with 'Ammaar' s statement." To which A boo Moos a replied: "Put aside 'Ammaar's statement, what is your reply to this verse 33 ?" At that, Ibn Mas' ood remained silent.

There is no doubt, that the correctopinion is with the group who holdthat the one in a state ofjanaabah performs tayammum, ju s t as the one who is in a state ofminor defilementperforms tayammum.

The point ofallthis is that a person can forget, whereby he becomes oblivious to the correctlegalju d gment and therefore gives an incorrectjudgment, which he is excused for. However, the one who is aware ofthe evidence is not excused.

33 i.e., the verse, " ... and ify o u find no water, then perform tayammum with clean earth... " [Soorah al-Maa'idah (5):6].

25 r The schola r is aware of the evidence bu t u n dersta nds it incorrectly.

We shall pu t forward two example s: the firstfrom the Qu r 'aan and the second from the Sunnah.

~w~~N~r~_;1r~~~:;r;~0t; ,.f .. , ...., / ..... ·,-> -: . . -:-: .!\. . . \ -> -:: :J~ .:-L.~ul ;::....:: :1 ~1 ~ ~~· -: ·!~\. 41J~r~ ... - .J

... and ifyou are ill, or on a jou r ney , or come after answerin g the callof natu r e, or you have been in contac t with women and you find no water; then 34 perform tayamm um with clean earth ...

The scholars differed on the u n derstand ing ofthe word ~~ ~ 'con- :1 tact'. One grou p u n derstoo d itto mean 'tou c hing' in it's u n restrict ed sense. Another grou p stated that it was a type ofcontact which induces sexual desire, and yet others heldthe view that itmeant sexual intercourse; this latterview, being that ofIbn 'Abbaas.

Ify o u contemp late u p on the verse, y o u will findthat the correct view is with the one who asserts that the intende dmeaning is sexu a l intercourse. This is becau s e Allaah mention ed (earlierin the verse) two categor ies for pu r ificati on by water: minor ritu a l pu r ificati on (wudoo ') and major ritual pu r ificati on (ghusl). The first is mentioned when He said,

34 Soorah al-Maa'id ah (5):6

lthe elbows, wipe y o u r heads and (wash) y o u r feet u p to y o u r ankles... 35

As for the second category (ghusl), Allaah says,

f'-'~ '''~(~.~ ,: ~0~--'/ \! . . • ~

... and ifyou are in a state ofjanaabah, then pu r ify y o u r self (i.e., perform ghusl) ...

The mention, therefore, of the two categories for purification by tayammum, would be in keeping with the eloquence and elucidation ofthe Qu r 'aan; so the phrase: -,..~, Jz.,t:;J\."' / ~ ~ N»- ...'t --..........., . "'~~~~ .,., -~ " ... or come afteranswering the callofnatu r e ... "

is a referenceto what necessitates minor ritual purification and the phrase:

" ... or you have been in contact with women ... "

is likewise, (regarded to be) a referenceto what necessitates major ritual purification.36

36 Consequ e ntly this wou l d only agree ifwe regarded the meaning to be sexual intercourse, as it is the only viable explanation here which necessitates ghusl.

27 'tou c h', the (latterpart ofthe) verse wou l d contain two references to what necessitates minor ritual purification and wou l d be void of any mention ofwhat necessitates major ritual purification;this wou l d be contrary to the eloqu e nce ofthe Qu r ' aan.

Accordingly, those who u n derstood it to mean 'tou c hing', stated: "If a man touches a woman's skin, he nullifies his wudoo "';or "If he tou c hed her with desire, he wou l d nullify it, and ifit was to occu r without desire, then he wou l d stillhave his wudoo '."

The correctopinion, though, is that it wou l d not nullify his wudoo ' in both cases. Furthermore, it has been reported from the Prophet (;fj) that he kissed one ofhis wives and then went to pray withou t performing wudoo ';this has been reported via many narrations, each one supporting the other. 37

(ii)When the Messenger ofAllaah (;fj) retu r ned from the battle of al-Ahzaab and took offhis armour, Jibraa'eel came to him and said: "Jfe (i.e. the angels) have not yet put down our weapons, so set out for Banee Quraydhah. " The Messenger ofAllaahorderedhis Companions to leave for battle and said: "None ofyou should pray A¥ 38 except at Banee Quraydhah." The Companions u n derstood this command differently:some thou g ht that the Messenger ofAllaah's intentionwas for them to make haste in setting offso that when the time for 'A§.r pray e r arrived, they wou l d already be at Banee Quraydhah. Consequently, when the time for 'A§.r pray e r set in and they were in factstillon their way, they pray e d and didnot delay it

37 Musnad oflmaam Ahmad (6/21 0) & Aboo Daawood, at-Tirmidhee,Ibn Maajah and an-Nasaa'ee in their collectionsu n der the Book ofT.ahaarah.

38 S.ab.eeb. al-Bukhaaree [Eng. transl. 2/34] and S.ab.eeb. Muslim [Eng. transl. 3/ 967/no.4374].

28 Messenger ofAllaah's order to mean that they should not pray ' ~r until they reach Banee Quraydhah. Hence, they delayed theirpray e r until they reached Banee Quraydhah and thereforeprayed itoutside ofit's time. 39

39 This lladeeth is a fu n damental evidencefornot rebuking theMujtahid who falls into error when exercising his ju d gement. This however, is only true when certain conditionsare met, some ofthem are:

(i) The person performing ljtihaad is qualified to do so. (ii)The particular issue in which he errs in is open to ljtihaad. (iii)The person exherts his utmost in trying to arrive at the correct ruling. This point is extracted from the originalmeaning ofthe word 'ljtihaad'. (iv) The person has some form ofevidence which he uses to ju s tify his position.

Only when su c h conditionsare met, is the following lladeeth of the Messenger (~) applicable: "If a judge gives a ruling upon ljtihaad and is correct, he will attain two rewards and if he peiforms ljtihaad and errs in his ruling then he secures one reward." [Related by al-Bukhaaree, Mu s lim and others].

With all this in mind however, it is not correct to u s e the b.adeeth of Banee Quraydhah, as is commonly done, to ju s tify a person's stance on a particular issue.

This is an extremely important matter related to the su b ject area of 'Differing' mentioned by a nu m ber ofscholars likeImaam ash-Shaa!ibee, al-Khat_taabee and Ibn Taymiyyah, may Allaah have mercy upon them all.

The notion that because there is a diffemceon a particular matter, e.g., with regard to the prohibition of something, it therefore becomes permissible is completely rejectedby the Sunnah. If we were to accept this then we wou l d declare lawful riba, illegalmarriages likemu 'tah and certainintoxicatingdrinks because the ummah differedin these issues!

Allaah has ordered those in dispute to refer back to His Book and the Sunnah of His Messenger (~). Thus, we recognise the existence of differencesand take them into account, bu t do not use it as proof because it is not an evidence in itself.