01 October, 2012

Fatwa Pemakaian Purdah

A Translation of Sh. Taha Karaan’s Fatwa on a Woman Covering Her Face and Hands   

Many have forwarded questions to shafiifiqh.com requesting details on the ruling of women covering their faces and hands in the Shafi School. Therefore, students of Shaykh Ml. Taha Karaan at the Dar al-Ulum al-Arabiyyah al-Islamiyyah have translated his fatwa on the issue from Arabic into English. Following is the English translation, and then the Arabic original.

Preliminary Remarks

I  [the respected shaykh, Ml. Taha Karaan]  was asked regarding a woman covering her  face and hands in the Shafi School; and thus, responded that it is not obligatory [wajib] for her. Moreover, this is what Ibn Hajar maintained in Tuhfah, differing with both Ramli and Khatib. Ibn Hajar’s position is preferred [rajih] in light of both the Madhhab and as well the evidence [dalil]. Subsequently, I decided to elaborate on the issue, thereby to provide additional detail.
Perhaps, confusion may arise when evaluating this issue along with the issue of looking at a strange woman’s face. Therefore, the ruling of looking shall be clarified prior to the issue of covering.

Looking at a Strange Woman’s Face and Hands [al-Nazr ila Wajh al-Ajnabiyah wa Yadayha]

Looking at a strange woman’s face can be one of three scenarios:

1)       Done with desire. This is absolutely unlawful.

2)       Done while fearing fitna. This is also unlawful without conjecture.

3)       Regarding the third scenario, it is when there is no desire and fitna is not feared. In the Madhhab, this is a point of khilaf [difference of opinion].

The khilaf found in the third scenario is as follows:

1)       The majority of the As-hab, most especially the early ones, opined that it is not unlawful. However, Sh. Abu Hamid and others added that it is disliked.

2)       Abu Said al-Istakhri and Abu Ali al-Tabari opined that it is unlawful. Abu Muhammad al-Juwayni and Imam al-Haramayn preferred this view. Abu Ishaq al-Shirazi and Ruyani affirmed it authoritatively. Both Imam Rafi and Imam Nawawi authenticated it. Consequently, it is the Madhhab.

 Differentiating Between the Two Issues

In reviewing the matters of covering and looking, one may develop an understanding that looking at the face and hands is impermissible; and thus, obligatory for a woman to cover those parts.
On the contrary, the issue of covering or exposing is an entirely separate topic within the Shafi School. There is no need to infer the Madhhab’s stance by relying on the issue of looking. Indeed, the issue of covering is based on what is related from authorities, and not based on mere inference.

The Difference of Opinion between Ibn Hajar, Ramli, and Khatib

If we look at what is related regarding the issue, we find Minhaj’s commentators (Ibn Hajar, Ramli, and Khatib) differing. There are two views:

1)       Ibn Hajar considers that it is not a fundamental obligation, yet enforceable in relation to the public’s common interest.

2)       Ramli and Khatib consider covering a fundamental obligation.
Each has a basis for his view, as follows:

Ibn Hajar’s View

After relating from Imam al-Haramayn that there is agreement [ittifaq] on preventing women from going out with their faces uncovered, Ibn Hajar stated,
“What Imam al-Haramayn transmitted does not negate Qadi Iyad’s citation of an agreement [ijma] that it is not binding on a woman to cover her face in the street. Rather, it is sunnah, and men must lower their gazes; this is supported by the ayah. Women are not bound to uncover when the leader orders it, due to it being disliked [makruh]. – And, the leader may put a stop to what is disliked [makruh] when it is for a public benefit. – The obligation of covering is upon them without forbiddance, even though it is not nakedness [awrah]. Oversight of the public’s interest is specific to the leader or his deputies.” (Tuhfat al-Muhtaj 7/193)
Two points should be noted from the quotation:

1)       The face and hands are not part of a woman’s awrah. Therefore, the default ruling is that they do not need to be covered.
2)       The agreement related by Imam al-Haramayn is for a leader binding the state’s citizens on account of public interest, not because a shari’ principle makes it obligatory. This does not contradict the ijma that Qadi Iyad transmitted, which Imam Nawawi acknowledged.
Ramli and Khatib’s View

Khatib and Ramli considered the matter as follows:

Ramli stated,

“What Imam al-Haramayn transmitted regarding preventing women – meaning the government’s preventing them – contradicts what Qadi Iyad relates: that it is not obligatory for a woman to cover her face in the street, rather sunnah; and it is incumbent upon men to lower their gazes. In Sharh Sahih Muslim, Imam Nawawi acknowledged it [iqrar, إقرار]. The claim of some [like Ibn Hajar] is that there is no contradiction; them being prevented is not on account of covering being fundamentally obligatory. Rather, because it is in the public’s interest and in leaving it is a breach of magnanimity [maruah, مروءة]. [The claim] is rejected. It is evident [zahir, ظاهر] from Imam Nawawi’s and Imam Rafi’i’s words that covering is fundamentally obligatory. The reconciliation is not accepted, and Qadi Iyad’s statement is weak.” (Nihayat al-Muhtaj 6/188)

And, Khatib mentioned,

“It is evident [zahir] that they both [Rafi'i and Nawawi] consider covering obligatory for a woman. This is the apparent analysis of shaykhayn’s words. However, trying to make this understood from their words [istizhar, استظهار] is weakened as Imam Nawawi acknowledged [iqrar, إقرار] Qadi Iyad’s claim ofijmaIstizhar is only considered in the absence of what is expressed [tasrih, تصريح]. Acknowledgement [iqrar] is equivalent to expression [tasrih]. It is not necessary, in point of fact invalid, to make istizhar from Imam Nawawi’s words that conflicts with his expressed statement [tasrih]. It is not acceptable to ascribe a view to one who has remained silent. This is one of Imam Shafi’is famous principles. How is it possible to ascribe an opinion to one who has expressed something to the contrary?” (Mughni al-Muhtaj 4/209)

Rashidi’s Objection

Rashidi raised an objection to Ramli. He considered that the refutation that Ramli – and likewise Khatib – directed towards Ibn Hajar was out of context. He mentioned in his marginalia on Nihayah,

“What that someone [like Ibn Hajar] claimed is not understood. The bottom line of his claim is that what Imam al-Haramayn related does not necessitate covering the face being obligatory in the street.  In fact, it is permissible that it be for a public interest, like he mentioned. This is inevitable. His refutation is unsound; what is evident [zahir] from their words is what he mentioned. The contradiction is not between permissibility which Qadi Iyad mentioned and unlawfulness, it is between it and the agreement on preventing them, like what preceded.” (Hashiyat Nihayat al-Muhtaj 6/188)

 Syeikh Taha’s Fatwa

I  [the much respected and learned Ml. Taha Karaan] say: what is clear to me, and Allah (SWT) knows best, is that the basis of Ramli and Khatib’s refutation is sound, according to their point of view. It is based on there not being any need for reconciliation, as reconciliation is only done between two solid pieces of evidence. And, neither of them considers Qadi Iyad’s claim as solid evidence. With that, the Madhhab according to them is based on making istizhar of shaykhayn’s words. Hence, the obligation to cover would be fundamental. Therefore, one who considers that according to the Madhhab, the fundamental obligation is to cover, then the claim of [Qadi Iyad’s] ijma would be unsound; thus there is no need for reconciliation.
Regarding one who takes the Madhhab from Imam Nawawi’s acknowledgement [iqrar] of Qadi Iyad’s claim of ijma, it is established that the Madhhab does not consider covering [the face and hands] a fundamental obligation. Moreover, when it is not considered fundamentally obligatory, it harmonizes the agreement that Imam al-Haramayn related with what Imam Nawawi acknowledged from Qadi Iyad. This is Ibn Hajar’s view; he reconciled between the two. With that, the prevention that Imam al-Haramayn related is not an obligating shari’ ruling. In effect, it is an issue of public interest, and the state’s leader [or his representatives] holds the authority to obligate the people to do it.

To conclude, my preferring [tarjih] Ibn Hajar’s opinion over that of Ramli and Khatib is considering iqrar equivalent to tasrih, and preferred over istizhar.
With prayers and salutations on the Prophet Muhammad (SAWS). And, praises to Allah (SWT) in the beginning and end.

Darul Ulum point of view :

Pihak Darul Ulum mengambil pandangan daripada fatwa di atas mengenai pemakaian purdah ialah seperti berikut ;

1.      Pihak Darul Ulum mengambil kira senario yang pertama dan kedua sebagai prinsip Darul Ulum dalam pemakaian purdah ke atas pelajar.

2.      Pihak Darul Ulum mengambil sikap berhati-hati terhadap masalah pakaian purdah.

Cara beramal jika fatwa berbeza-beza :

Apabila fatwa yang di terima oleh seorang muslim berbeza-beza maka jalan yang paling baik yang mesti di tempuhnya ialah jalan berhati-hati dan bersikap warak.

Sikap paling berhati-hati itu misalnya mendahulukan pendapat yang melarang daripada pendapat yang mengharuskan.

Tujuannya ialah untuk menjaga keselamatan agamanya daripada jatuh kepada syubhah.

(dipetik daripada Buku Fatwa Mufti Kerajaan Negara Brunei Darussalam. Ustaz Mufti Hj Awang Abd Aziz bin Junid )

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