Is what is stated in this text correct: "People differed regarding the issue of one who marries his mother, or his daughter, or any of his unmarriageable kin (mahram), or commits fornication with one of them. One group said: All of that is the same, and it is all fornication, and the marriage is no marriage if he was aware of the prohibition, and he is subject to the full prescribed punishment for fornication (hadd az-zina), and the child is not attributed to him in the contract. This is the opinion of Al-Hasan, Malik, Al-Shafi'i, Abu Thawr, Abu Yusuf, and Muhammad ibn Al-Hasan, the student of Abu Hanifa. The fatwa of Malik differentiates between intercourse by marriage contract and intercourse by right of ownership (milk al-yamin) in some cases. So, regarding one who acquires ownership of his niece (daughter of his brother or sister), or his aunt (paternal or maternal), or his father's wife, or his son's wife by birth, or his mother, or his daughter, or his sister by suckling, and he is aware of their prohibition and kinship, then he has intercourse with them knowing what is due upon him, the child is attributed to him and there is no hadd punishment upon him, but he is punished. And he held that acquiring ownership of his mother who bore him, and his daughter, and his sister, makes them free as soon as he owns them. If he has intercourse with them, he is subjected to the hadd punishment for fornication. And Abu Hanifa and Sufyan Al-Thawri said: There is no hadd punishment upon him in all of that, and there is no hadd punishment upon one who marries his mother who bore him, and his daughter, and his sister, and his grandmother, and his paternal aunt, and his maternal aunt, and his brother's daughter, and his sister's daughter, while knowing their kinship and prohibition, and he has intercourse with all of them, then the child is attributed to him and the dowry is due to them, and he is only subject to discretionary punishment (ta'zir) of less than forty lashes only"?
The aforementioned statements can be attributed to the Imams. Their disagreement regarding the consequences of these statements stems from their differing views on what constitutes a doubt (shubha) that can avert the prescribed punishment (hadd). Imam Abu Hanifa is of the opinion that the contract (aqd) alone is a doubt that can avert the hadd, while his two companions and other Imams disagreed with him. Imam Malik does not consider the contract a doubt, but he does consider a doubt of ownership (shubhat al-milk) if it is established. The preponderant view is that of the majority, who say that the hadd is mandatory and that a contract concerning a mahram (unmarriageable kin) is not a doubt.
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- 58553
- Imported
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