(#097)
My family have a business and have rental house but all belongs to both of us , how do I make my will (50% of everything in my share only ) and can I give my wife some share of my share .
In HAJJ can a man wear underwear while in ihraam or if he has leaky bladder problem because of age
A woman can’t go for hajj without marham but what about marham dies in there before hajj , can she perform hajj or come back home .
Incise if a lady has pried in between 8th and 13th dull hajj will her hajj be valid or what to do
Salaam and remember in Dua
Answer
بسم الله الرحمن الرحيم
السلام عليكم و رحمة الله و بركاته
حامدا و مصليا و مسلما
Muhtaram
We received your various queries dated 15/01/15. Our response follows:
1) As you are aware that drawing up a Will does not mean that one must divide one’s wealth amongst the various inheritors in one’s life; rather, one must merely stipulate in the Will that “upon my death, my executors will distribute my wealth according to Shariah”.
Moreover, it is unlawful and invalid to make a bequest (Wasiyya) in favour of an individual who automatically is entitled to receiving a share of the estate, such as one’s spouse, children and parents, etc. The Messenger of Allah (Allah bless him & give him peace) said in his historic sermon (khutba) of his farewell hajj (haj al-Wada’):
“Verily Allah has given each rightful person their right, thus there is no bequest in favour of a inheritor.”
(Sunan Tirmidhi, no: 2120, narrated by Sayyiduna Abu Umama al-Bahili)
The meaning of this Hadith is that Allah Almighty has already fixed and allotted the shares of those who are entitled to inherit from one’s estate. As such, if one was to make a Will in their favour, one will be going against the shares fixed for them in the Qur’an and Sunnah.
What a person gives to another in one’s lifetime is considered a “gift” whilst attributing the giving of something after one’s death is a “bequest or Will (Wasiyya)”. For example, if I give my house to a friend whilst I am alive, then that will be a gift, but if I was to say that my friend will take ownership of my house after I pass away, then that is a bequest.
Now, with regards to your specific query, because the house and business is jointly owned by yourself and your wife, then in the event of one of the spouse’s death, half of the house and business will remain in the ownership of the other spouse, and the remaining half will be distributed according to the Shariah. Shariah has already stipulated a portion for the spouse in the portion which will be distributed that is why it will not be permissible for you to bequeath her a specific portion. Therefore, when writing your will you will simply state that you are in a 50:50 joint partnership of properties X, Y, Z with your wife and that your estate should be distributed in accordance to the rules set out by the Shariah,
Note that if the inheritors give their consent in their mother or father residing in the house, then this is permissible. However, what is necessary is that the shares are distributed, and then they may give their consent in allowing their mother or father to reside. However, one must be extremely precautious here, for all the inheritors must consent to this from their heart and must not be pressurised into it. If even one inheritor disagrees, his/her share will have to be given to him/her.
2) Muhrim ma’zoor wearing underwear
It will be permissible rather preferable[1] for such a ma’zoor person to wear an underwear in the state of Ihram. However, it will still be incumbent upon such a person to give Fidya which is one of the following three[2];
- Give دم (i.e. slaughter a goat in the Haram)
- Give Sadaqah of 3 saa’ wheat to 6 masaakeen (One Saa equals to 3,26592 kg)
- Keep 3 fasts (it is not conditional to keep them consecutively)
و ان طيب او حلق او لبس بعذر خُيِّر ان شاء ذبح في الحرم او تصدق بثلاثة اصوع طعام على ستة مساكين اين شاء او صام ثلاثة ايام و لو متفرقة … قوله بعذر قيد للثلاثة و ليست الثلاثة قيدا فان جميع محذورات الاحرام اذا كان بعذر ففيه الخيارات الثلاثة كما في المحيط قهستاني. الشامية ص٥٥٧ ج٢
كذا في البحرالرائق ص١٢ج٣ والبدائع ص١٨٦ ج٢ والتبيين ص٥٦ ج٢ و معلم الحجاج ص٢٦٢
3) In accordance to the Hanafi School of thought, it is not permissible for any free woman whether young or old to undertake a Haj journey without a Shar’I Mahram. This is established from the Hadith in this regard which explicitly prohibits any female undertaking a journey of more than 48 miles on her own. [Shaami vol.2 pg 464]
Mufti Mahmood Hasan Gangohi Rahimahullah has stated in his Fatawa “if a lady has enough money to go for Hajj and either her husband or any mahram is available to give her company throughout the journey of Hajj, THEN ONLY will it be FARDH upon her to go for Hajj, or else it will NOT even be fardh for her to go for Hajj. Instead it will be necessary for her to make wasiyyat (bequest a will) for Hajj to be performed on her behalf, the expenses of which have to be discharged from one third of her estate after she passes away.
This is the ruling regarding this lady whether she is old or young, and whether there are other ladies in the group or not. And this is the Madhab of Imaam Abu Hanifah (rahimahullah)” Al Bahrur Raiq Vol.2/ pg.314-315”.
In another place he has written “If a woman has enough wealth, and she will be in the company of her husband or a Mahram, only then will Haj become Fardh upon her, otherwise not. Even if she will be in the company of other women, it will not be permissible for her to travel without her husband or a Mahram. “
Mahmoodiyyah v 10 p 333
If her husband where to pass away while in Hajj then fundamentally, she should immediately return to Makkah (without completing the remainder rituals of Haj) and complete her ‘Iddat there. In this case she should break her Haj Ihraam by trimming her hair with the intention of terminating her Haj, or alternatively wait for the day of ‘Arafaat to pass by and thereafter trim her hair with the terminal-intention. It would be necessary for her son (or any Mahram) to travel to Makkah, stay with her until the termination of her ‘Iddat and bring her back home.
However, due the time factor and stringent conditions of the Saudi government with regard to granting of visas at this moment of time, and expelling of the pilgrims after Haj, difficulty of returning to Makkah from the journey of Mina and spending the ‘Iddat there without a Mahram, etc., etc.; the ‘Ulama do mention –in such an exclusive case – a few concessions.
The widowed wife who is in Mina (on the 8th) should carry on her journey to ‘Arafaat, Muzdalifah, Mina and Makkah with the intention of returning to Makkah for spending her ‘Iddat. This travel should be in the company of other women who are present there for Haj and with other females of the group. It will be the duty of the group Ameer to look after her chastity and necessities.
Once in Makkah (after the completion of her Haj duties), owing to the difficulties of spending ‘Iddat there, arrangement should be made for an earliest possible return flight (in the company of reliable females) for her home. Upon arrival, she is then obliged to complete her ‘Iddat at her deceased husband’s residence.
[Fataawa Rahimiyyah Vol. 5 Pg. 237, ‘Aalamgiri Vol. 1 Pg. 219, Shaami Vol. 2 Pg. 417, Bahrul Raaiq Vol. 2 Pg. 314/5, Mu’allim ul Hujjaaj Pg. 86/7, Khutubaat Hakeemul ‘Ummah Vol. Pg. 290 – Hadhrat Thanwi’s ruling, Imdaadul Fataawa Vol. 4 Pg. 201- Also refer to Zubdatul Manasik and Irshaad Saary pg 64. Fathul Qadeer pg 168 vl 4 Rashediya -]
4) If a woman’s menses had commenced on the 7th day of Zul Hijjah, she will wear the Ihraam garb after making Ghusl without performing the prescribed two Rakaats before entering into the state of Ihraam. She will recite the Talbiya and perform all the rites of Hajj (staying at Mina, Wuqoof of Arafaat and Muzdalifah, pelting the Jamaraat, etc), besides the Tawaaf-uz-Ziyaarah (and the subsequent Sa’ee), since seeing that she cannot enter the Masjid to perform Salaah, or make Tawaaf. The Tawaaf-uz-Ziyaarah will be performed after attaining purity. [Aap ke Masa’il aur un ka Hal vol.4 p.90, Khawatin ke Masa’il aur un ka Hal vol.1 p.496,497]
It should be borne in mind that maintaining order between pelting of the Jamaraat, cutting the hair and Qurbani is Waajib. However, it is Sunnah to maintain order between Tawaaf-e-Ziyaarah and these three rites. It is a necessary condition that the Tawaaf-e-Ziyaarah will have to be carried out during the Ayyaamun Nahr. Raddul Muhtaar v 2, p 517.
At the time of need and necessity (as in the case of menses beginning), it will be permissible to first carry out Tawaaf-e-Ziyaarah then the remaining three rites of the 10th Zil-Hijjah.
Tawaaf-e-Ziyaarah, besides being the main Fardh of Hajj, is an action of Hajj which has to be performed in the state of Tahaarah. The other actions of Hajj such as Wuqoof-e-Arafaat; Muzdalifah; and Mina, Ramee etc. can be discharged even in the state of uncleanliness, whether it is Hadath-e-Asghar or Akbar. Thus, a woman can not, under any circumstance, be permitted to perform the Tawaaf in the state of Haidh. The texts of our Fuqahaa Rahimahumullah clearly state that if a woman is in the state of Haidh in the days in which Tawaaf-e-Ziyaarah is to be made (10th, 11th & 12th), then she has no option but to wait till the termination of her Haidh, perform Tawaaf- e-Ziyaarah and then only can she depart. However, she will not be liable to give Dam for the delaying of the Tawaaf after its prescribed time. If she departs without performing the Tawaaf, then she will remain in the state of Ihraam until she returns (whether it is after years) and performs her Tawaaf. In this interim, she will not be permitted to even have sexual relations with her husband as she will still be in the state of Ihraam.
Since Hajj is only Fardh once in a lifetime, the dates for return bookings should be well catered for, so that they do not coincide with the days of the woman’s Haidh period.
If due to a dire need and unforeseen circumstances, the departure cannot be delayed, then fundamentally she will be permitted as a last resort to use temporary medication to stop the bleeding so that she may get the opportunity to at least perform her Tawaaf in the state of cleanliness. However this should be avoided as far as possible due to the harms it may cause on her health and the disturbance it may cause in the calculation of her menstrual cycles.
And Allah Ta’ala knows best
Muhammad Irshad Motara
18th January 2015
27th Rabiul-al-Awwal 1436
Checked and Approved by
Mufti Musayyab Sahib
[1] This is due to the possibility of urine falling in the Masjid. The Fuqahaa y have stated it is Makrooh e Tahrimi to pollute the Masaajid with urine or any other impurity. See Shaami 1:657
[2] He will have the choice to do one of the three.
