Some Possible Rukhsah Opinions in the Shafi'i School Regarding the issue of Touching a Woman Nullifying Wudu'
Compiled by Abu Layth
Disclaimer: This article is intended for Shafi’is. If individuals from other schools read this, take note that we are not attacking your school, or saying that your madhhab’s views are invalid. We respect all 4 Sunni schools and respect the differences of them as the Sunni scholars of our glorious past did as well!
There is no doubt that the official view of the Madhhab of Imam Ash-Shafi’i is that a man or a woman touching the opposite gender- skin to skin – nullifies wudu’. Imam An-Nawawi solidifies this as the “Jadid” or new school opinion of Imam Ash-Shafi’i himself throughout many of works, Kitab At-Tahqiq, Majmu’ etc. To see solid proof based legal arguments from the Qur’an and the Sunnah regarding this issue, as well as refutations of the Hanafis and others, click here. I would like, however, to mention some possible dispensations from within the school for those who may face some need or reason to utilize these views.
Everything I have quoted below is found within the Majmu’ of Imam An-Nawawi.
1) Imam An-Nawawi in his Majmu’ [vol. 2 page 29] mentions the second view of Imam Ash-Shafi’i which is that the malmus (the one being touched) does not have their wudu’ broken by being touched. This view has support from both the Qur’an linguistically and from the hadith of A’ishah (r) who said she touched the Nabi’s foot while he was making Salah – and so it did not nullify his wudu. This is one of the ways some of the Imams reconciled the reports with the aayat on this issue. This is actually reported in the report of Harmalah from Imam ash-Shafi’i alone. Qadi ash-Shashi and Imam ar-Rawyani [and a small group - according to Imam An-Nawawi] held this to be the “Sahih” view of the school – though it is certainly not according to the majority!
2) Another dispensation that could be taken in this regards from the school of Imam ash-Shafi’i is that Ar-Rafi’i quotes Imam Al-Hanaati who quotes Imam Surayj that he held the view that desire “shahwah” is involved in “lams” and therefore if the touch is not with “desire”, wudu’ is not broken – he ascribes this view to ash-Shafi’i as well. This is a weak opinion in our school.
3) Another dispensation is the view of Imam Al-Haramayn al-Juwayni and Imam Al-Fawraani as well as others, that the “touch” must be intentional (qasdan). Therefore if the touch is accidental it does not nullify wudu’.
All of these reports Imam an-Nawawi says about, “All of these views are anomalous (shadhah) and weak (da’ifah). [Vol. 2 page 29]
4) To add to this is the established view that if one touches hair or fingernails, such does not break wudu’ and this is the view of Imam ash-Shafi’i in his Al-Umm – and the relied upon verdict of the school.
5) Also the correct view from Imam ash-Shafi’i and companions (save for Harmalah) that blood-related Mahrams do not break wudu by touching.
As for the relatives by way of breast-feeding, then the correct view as stated by An-Nawawi and Rafi’i is that touching them does not break wudu’ as well. This includes the spouses of one’s children too. [Majmu' vol 2 page 31]
6) As for touching a child or an elderly person that is not related, there exists two views as well, that it does break it or it does not. There is agreement of the major Imams that the Sahih (correct) view is that the child does not break wudu [ibid. pag 32]. As for the elderly non-Mahram, then in the view of the majority according to Imam an-Nawawi, it does break wudu’. Though Imam Al-Jurjani and Al-Mahamali in Al-Muqni’ report an anomalous view that such does not break wudu.
As for the definition of what a “child” is then it is based upon the ‘Urf (customs) of the people as stated by Nawawi, though he states that he read that Imam al-Ghazzali said in his Ta’liq that a child (As-Saghirah) is 7 years or younger. Though Nawawi said that what is correct is that customs take precedence in this matter. [ibid. page 32]
7) Touching over a garment does not break wudu’ according to the relied upon view.
8 ) As for touching the dead person, then there is disagreement as well. The correct is that it does break wudu’, as Imam al-Baghawi and a group of jurists said of them being Al-Fawrani, Ad-Darimi, and Al-Mahamili. However the minority view is that it does not break wudu’
9) A Severed limb! Yes you read that correctly! The first view is that it nullifies it just as it would have done so if connected. The correct view is that it does not nullify as it is not considered “a person” and desire etc does not exist. “This is the well known way of Khurasani jurists … as well as the ‘Iraqi school, and Imam al-Baghawi and Qadi Husayn…” [ibid page 33]
10) If one touches a hermaphrodite that is a variegated hermaphrodite, looks like a man, or a woman, or looks like both man and woman, then wudu’ is not broken due to the possibility that they could be either (ihtimaal). As for the hermaphrodite touching another individual then it seems that the hermaphrodite’s wudu’ is broken, though the wudu’ of either the man or woman is not. As for the hermaphrodites wudu’ being broken or not when being touched, then there are two views on this issue. May Allah save us!
10) If you do not know if the person is a woman or a man it does not break wudu’.
* I guess this may be a problem if one encounters a transvestite -whatever that even means anymore – and one does not know what they are. Or if one encounters a lesbian that may look like a man – or a man who may look like a woman and cannot be certain. This is one messed up world we live in – but a messed up world the scholars thought about some 1000 years ago! May Allah save us from such encounters Amin!
wa Billahit-tawfiq!
“If individuals from other schools read this, take note that we are not attacking your school, or saying that your madhhab’s views are invalid. ” Truer words were never uttered.
As salamu ‘alaykum,
Regarding #1…I guess this mean that Imam Shafi’ee [RH] did not interpret the hadith of Aa’isha [Ra] to be a touch with a barrier between the Prophet (sallallahu alayhe wa sallam) and Aa’isha[Ra] as -if I remember correctly- Imam Nawawi [rh] did.
Not Imam Nawawi, I meant Ibn Hajar
http://www.shafiifiqh.com/?p=23
Well Imam An-Nawawi utilized the same argument in his Majmu’ and elsewhere. This opinion of Harmalah is a weak view opinion though and is contradicted by many other reports from the companions of Imam Ash-Shafi’i. Again, I am only quoting these views for shafi’is to seek dispensation in times of NEED from within the school.
was-salam,
Abu Layth
” As for the relatives by way of breast-feeding, then the correct view as stated by An-Nawawi and Rafi’i is that touching them does not break wudu’ as well. This includes the spouses of one’s children too. [Majmu' vol 2 page 31] ” —->
Ok this one says about the mahram by breast feeding and spouses of one’s children, but anybody heard of a view in syafie regarding touching ones wife not nullifying the wudhu’? If yes please provide us with the source.
Allah musta’aan. Jazakallah kheir.
No such view exists. The Shafi’is agree that touching the wife nullifies the wudu’, as she is not a “blood mahram” nor is she a “milk-mahram”. The only possible rukhsah relative to this scenario is if it is done on accident – meaning without motive or intention – for Imam Al-Haramayan Al-Juwayni and Imam Al-Fawraani held this view as mentioned above.
Or you could take the view that the toucher’s wudu’ is broken, but not the touched, and this is the old-school (qadim) view of Imam Ash-Shafi’i so it seems. [See the Majmu' of our Imam An-Nawawi]
was-salam
Abu Layth
Truer words certainly have been said. Such as, “Disagreement [ikhtilaf] is a mercy for my Ummah.” And the countless other statements of the scholars and Prophets that we should respect each others valid disagreements.
So I guess our children, since we’re in America, will be children until the age of 40! That shall make it easier on them… since it is by the ‘urf… : D
I love this site and the knowledge that can be gained from it. May Allah bless you for your efforts Sidi Abu Layth. Ameen.
Amin akhi. As much hate comments that we receive from the pseudo-salafis, it is good to get some positive feedback sometimes!
Jazakum Allahu Khayran
I second that motion. Masha’Allah this really is one of the best sites around, along with the Shafi’i fiqh site. Jazak Allahu khayran. Please keep up the great research and be patient and polite with detractors.
Assalamu alaikum,
When the ulema say weak opinion, do they mean the opinion is strong but weak in relation to the mu’tamad?
Is it permissble to follow shadh opinions when taking a rukhsa?
Are one the opinions mentioned above followed during Hajj?
I read in SunniPath that there is a strong position according to Ibn Ziyad al-Yamani. She says that one’s wudu and salat does not have to be from the same madhab. Hence one can have wudu as a Hanafi. I guess the only problem with following this opinion is one would need to learn about wudu in the Hanafi madhab.
regarding ibn Ziyad I meant he and she.
Yes in the Reliance of the Traveler Shaykh Nuh Keller has translated some very beneficial material regarding rukhsah taking. You should read it insha’allah.
was-salam