Issue of Maradhul Maut - Maulana A.S. Desai

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#1 [Permalink] Posted on 1st April 2014 22:36

An interesting article regarding the ikhtilaaf among 'Ulama on the commencement of Maradhul Maut. Mufti A.S. Desai answers a question by a talibul 'ilm, then an objection by a buzurg.

Maradhul Maut - The Last Sickness

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#2 [Permalink] Posted on 2nd April 2014 23:44

The following fatwa gives a detailed explanation of Maradhul Maut, and its significance in the Shari'ah.

What is Maradhul Mawt?

Maradh al-Maut (sickness of death) refers to that sickness that led to one's death. Sharīʿah has limited a person's dealings during this time. The issue is defining that point in which dealings are limited, especially if one is a cancer patient or an acute diabetic. These are known to be terminal sicknesses, but in many instances a cancer patient lives on for years on end. So at which point will he be restricted from his dealings to safeguard the rights of his inheritors? This research presents the guiding principles for this critical issue. Other Ulama were consulted on this before arriving at a conclusion.

Mufti Ebrahim Desai

The Fiqh of Maradh al-Maut

A case in point: Zaid is diagnosed with cancer on November 1, 2012. The cancer has reached a very critical stage. Doctors say that Zaid may pass away within a period of six months. However, at this point in time, Zaid is physically strong. He is able to fulfill his personal needs and go to the Masjid for Salāh. Doctors suggest that Zaid should go through chemotherapy without wasting time.

Zaid agrees and commences with the therapy. One month into his therapy, Zaid experiences a heart attack. After the heart attack, Zaid is housebound and shortly thereafter he passes away. What is considered the Maradh al-Maut in such a situation? Do we consider the commencement of Maradh al-Maut upon the diagnosis of the cancer? Or do we consider it from the time Zaid was housebound due to the heart attack?

Analysis: Some may suggest that since the cancer was terminal, it should be classified as the Maradh al-Maut. However, many times cancer patients outlive the timespan estimated by doctors. In fact many a times, they live longer than others who are perfectly healthy. Hence, what is classified as terminal by medical doctors cannot be termed as the Maradh al-Maut. Recently in the news appeared a report of an 18 year old girl whom all the doctors had said would not live when she was born. The doctors gave her one week to survive due to multiple complications of this prematurely born child. Today the child is an 18 year old who has successfully completed her matric and pursuing higher education.

Another point to consider is that many of those who are diagnosed with a terminal sickness are not physically disabled. They appear as if they are normal and healthy. They are able to see to their own needs without any assistance. Recently, a professor at a university was diagnosed with cancer of the liver. At a gathering of professionals - doctors, university staff, lawyers, etc., he gave a speech and mentioned his cancer, saying that he knows that he does not have long to live. But, he was as fit as a fiddle. At the gathering, he demonstrated his physical fitness. He performed a couple of dozen push-ups and some other physical exercises without showing signs of tiredness. Addressing the crowd, he said that despite his cancer, he challenges any one from the crowd to physical combat. Within three months he died. Now how can it be said that his Maradhul Maut began from the day he was diagnosed with cancer and his transactions during this time were restricted?[ii]

Even if we consider the diagnosis to be the commencement of Maradh al-Maut, the cancer most definitely existed well before the diagnosis. Hence, the Maradh al-Maut should actually be from the time Zaid was afflicted with cancer, not from the point of diagnosis. However, the exact stage when the cancer developed is unknown and difficult to determine.

The correct answer in the abovementioned case is that Maradh al-Maut initiated from the time Zaid was housebound. That was from the point Zaid had a heart attack.

Maradh al-Maut is the last sickness from which the deceased never recovers. It is that sickness that eventually leads to the death of the person.[iii] In defining Maradh al-Maut, the Fuqahā have stated that Maradh al-Maut for a male commences from the point when the ill person becomes housebound and is unable to go to the Masjid (if the Masjid is in close proximity) or go to the shopping center (if it is in close proximity) by himself. In respect to a female, Maradh al-Maut commences when she is unable to fulfill her domestic chores by herself for example cooking and cleaning the house. In any case, it is not necessary however that one must be bedridden. [iv] Even if an individual is diagnosed with a terminal sickness such as cancer, the Maradh al-Maut does not commence upon diagnosis, rather when the patient becomes housebound. What the doctors describe as a terminal illness, is not Maradhul Maut. [v]

Note that if a male has the ability to leave home independently and a female has the ability to, for example, cook independently, but they do not do so due to precaution or advice of doctors, this is not Maradh al-Maut.[vi]

If one is disabled or housebound for one year or more, Maradh al-Maut is not considered from the commencement of the disability. His transactions in this duration are not restricted. However, if the sickness becomes critical and he passes away in this condition, then his Maradh al-Maut is considered from the time his health seriously deteriorates.[vii]

Hereunder are basic rules that are applicable during Maradh al-Maut:
� Charitable agreements such as gifting or donating are treated like bequests. Hence, a gift to an heir is invalid unless the rest of the heirs permit it after the death of the deceased.[viii]

� A gift to a non-heir is valid on condition that the value of the gift is lesser than one third or equal to one third of the entire estate. If the value of the gift exceeds one third of the estate and the heirs do not permit its formulation, the recipient of the gift will be obliged to return the surplus amount back to the estate. [ix]

� A sale of a commodity to an heir is suspended upon the permission of the rest of the heirs after the deceased's death. If they permit the sale, it is valid, otherwise it is invalid.[x]

� A sale of a commodity to a non-heir for the normal market price is valid. If the sale is lesser than the market price, then it is considered to be charity to the purchaser. If the discounted amount is equivalent to one third or lesser than the value of the entire estate, the sale is valid. However if the discounted amount exceeds one third of the estate, and the heirs do not permit such a discount, the purchaser will be obliged to return the surplus to the estate.[xi]

For example, Zaid is in Maradh al-Maut and he has a total of R15,000 in his estate which comprises of R6,000 cash and a car worth R9,000. Since the market price of Zaid's car is R9,000, if Zaid sells his car to Bakr for R9,000 the sale is valid. However, if Zaid sells the car for R8,000, Zaid has given a R1,000 discount to Bakr as this is a gift. Since R1,000 is less than 1/3 of the entire estate, which is R5,000, the sale is valid. However, if Zaid sells his car to Bakr for R3,000, Zaid has given Bakr a discount of R6,000,which is more than 1/3 of the estate. Hence, Zaid's heirs have the right to demand from Bakr R1,000 to the estate in order to confine the discount to R5,000, which is 1/3 of the estate. If Bakr does not return R1,000 to the estate, Zaid's heirs have the right to cancel Zaid's transaction with Bakr.

� Confession of a debt in favor of an heir is suspended upon the approval of the remaining heirs. They may approve the debt during the life of the sick person or after death. If they deny the debt, then the confession is invalid. [xii] The wisdom in this is that there is scope for accusation against the confessor that he is favoring one heir over the other. [xiii] Note that this ruling is applicable in the absence of witnesses. If witnesses are present or the debt is common knowledge, then the confession will be valid.

� Confession of a debt in favor of a non-heir is valid,[xiv] whether there is evidence in support of the debt or not.[xv] This is so because there is no scope for accusation in respect to a non-heir and to free oneself from a debt is a personal need that is necessary for entrance into Jannah.[xvi]

� Leasing out one's property or goods at any rate is valid.[xvii]

� Lending one's belongings is valid.[xviii]

� If one divorces his wife, the divorce is valid. If he passes away during the duration of her ʿIddah, she will inherit from the estate. Otherwise she will not inherit.[xix]

For an easier understanding of the various rulings during Maradh al-Maut, please refer to the following chart:

And Allah Ta'aala Knows Best

Abdul Azīm bin Abdur Rahman,
Student Darul Iftaa
U.S.A.

Checked and Approved by,
Mufti Ebrahim Desai.

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#3 [Permalink] Posted on 17th October 2014 20:14

Detailed Explanation with Some Examples

Allah Ta`ala has granted man full freedom to act and operate in the bounties of wealth during his state of health. Whilst sound and healthy, he is permitted to dispose his estate within the confines of the shari`ah at will and wish. He enjoys the right to gift away his property to relatives, friends and foes according to his discretion. Once the beneficiary takes possession of the asset/item/property given to him during the state of health of the benefactor, the gift is complete and final, having left the ownership of the benefactor.

However, when man approaches the last stage in his earthly sojourn, hovering between life and death, the shari`ah curtails his former unfettered freedom of disposing his estate. At this stage the rights of the heirs in his estate are activated. The rights of the heirs become applicable to the estate from the day that maradhul maut commenced. Maradhul maut is the illness from which a man does not recover. His death occurs in the duration of this final sickness. Henceforth, the shari`ah does not recognize man’s unrestricted freedom of operation in what is commonly known as ‘his’ estate.

Some operations of a man in his final sickness are valid and will be given effect. Some of his operations are null and void while some operations are partly valid and partly void. This third category of partly valid operations is described as wasiyyat. These different types of operations in his estate by a man in his maradhul maut will be more fully explained later with specific examples, insha’Allah.

While a man still breathes life, it is not possible to know whether the particular illness in which he is will be his maradhul maut or not. He may well recover. Only death determines maradhul maut. All operations in his wealth during an illness from which he recovers will be valid regardless of the severity of his indisposition. The freedom of his operation is curtailed only in the illness in which he dies, the date of the curtailment being the first day of such last illness.

An illness which endures for a year or more will not be maradhul maut. The last illness of such a person will be from the time the illness deteriorated. Thus, deterioration leading to death, will be the determining factor of maradhul maut in cases of prolonged illnesses of a year or more. A year in the context is an Islamic year. All operations in his wealth prior to the date of deterioration will be fully valid.

Similarly, an illness which does not confine a person to bed is not maradhul maut. If during the illness he is able to perform salaat as usual and attend to other duties and activities, such a sickness will not be maradhul maut. His maradhul maut commences from the day he comes bedridden, ultimately dying in that illness.

When disaster strikes a ship or aircraft, the maradhul maut of the passengers will commence from the time when hope of life vanishes. All operations in their wealth in this state of hopelessness will be considered to be operations in maradhul maut, hence subject to the restrictions of the shari`ah. If, however, the ship or aircraft survives the disaster or the passengers emerge safely, then all operations effected during the state of hopelessness will be valid.

When a man is sentenced to death, his maradhul maut commences from the moment he is led to the gallows. This moment commences from the minute he is taken from his place of imprisonment to the place of execution. All operations effected by him in his wealth during this time will be operations in maradhul maut. However, if for some reason, at this eleventh hour the death sentence is commuted or the execution is stayed or the prisoner escapes, then maradhul maut will be negated and all operations made during this time will be fully valid.

The maradhul maut of a woman who dies giving birth will be from the time her pangs commence.

The maradhul maut of people dying in a plague will be from the time the disease strikes them. Unlike normal, everyday sickness, their participation in daily activities will not negate maradhul maut for persons caught in a plaque, e.g. smallpox, cholera, etc.

[Source: Kitaabul Meeraath pages 32-34]

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#4 [Permalink] Posted on 17th October 2014 20:25

Tasarrufaat (Operations) During Maradhul Maut

1. If during maradhul maut a man acknowledges a right/obligation which is common knowledge or evidenced by witnesses, then such acknowledgement will be fully valid and its discharge will be just as incumbent as all other rights and obligations which were confirmed prior to maradhul maut.

2. If during maradhul maut a man acknowledges a right/obligation in favor of non-heirs, which is neither confirmed by common knowledge nor evidenced by witnesses, then this acknowledgement too is valid. This obligation will also have to be incumbently discharged before the distribution of the mayyit’s assets among his heirs. There is, however, one difference. The debt/obligation of the first kind will be discharged first. After this, if there are assets available, the second class of obligations/liabilities will be paid.

3. If during maradhul maut a man makes an acknowledgement of any obligation in favor of an heir or he makes a gift of an asset to an heir, it will have no validity. These operations are null and void. However, if all of the adult heirs uphold the operation, the obligation will be executed from the assets remaining after funeral expenses and payment of debts.

4. If a person who is an heir of the testator ceases to be his heir, the acknowledgement in his favor will be valid. This will happen if the beneficiary of the acknowledgement predeceases the testator. In view of him dying first, he no longer remains an heir, hence the acknowledgment of the debt/obligation in his favor is valid and the debt/obligation will be paid to the heirs of the predeceased former heir. If the acknowledgement is confirmed by common knowledge or evidenced by witnesses it will constitute a debt of the first category of qardh. In the absence of such evidence the obligation will be assigned to the second class of qardh.

5. All charitable acknowledgements and endowments of a non-obligatory nature made during maradhul maut come within the scope of wasiyyat.

6. Directives issued regarding payment of compensation (fidyah/kaffaarah) for unfulfilled salaat, saum, hajj, qasam (oath), etc. also come within the scope of wasiyyat.

7. If a man divorces his wife during maradhul maut, whether by talaaq baa’in or talaaq raj`i, the talaaq is effective. If the man dies before the expiry of her iddat, she remains his heir and will inherit in his estate. If he dies after the expiry of the iddat, she will not inherit in his estate.

8. If during her maradhul maut a woman enters into a khula` contract in which she pays her husband a sum of money, the khula` will be valid.

9. If a man marries during maradhul maut and the mahr fixed is the normal mahr-e-mithl of the woman’s family/tribe, such mahr will be a valid debt on the mayyit. If the mahr fixed is more than mahr-e-mithl, the excess will be in the category of wasiyyat.

10. During maradhul maut a man purchased an asset and paid for it. This purchase and payment are valid provided it is borne out by witnesses or common knowledge. Documentary evidence such as title deeds, official receipts, and other instruments of proof will be accepted as valid evidence.

11. If a man during maradhul maut acknowledges that he has misappropriated or destroyed the property/amaanat (an item held in trust) of a certain heir and that he is liable for payment of compensation, the this acknowledgement will constitute a debt of the first category provided that there is evidence to confirm this acknowledgement of debt.

12. If during maradhul maut a man declares that a certain debt owing to him, i.e. a debt which he gave prior to his maradhul maut, has already been paid by the debtor, then such declaration is valid provided the debtor is not one of his heirs.

13. If during maradhul maut a man makes an acknowledgement of debt/obligation in favor of a non-heir and the heirs accept this declaration, then the acknowledgement will be valid even in the absence of evidence.

14. If during maradhul maut a man marries a woman after having acknowledged a debt in favor of her, then this acknowledgement is valid. If there is no evidence to corroborate his statement, the debt will be of the second category.

15. If during maradhul maut an insolvent man waives debt owed to him, then such a waiver is not valid. The creditors can claim the debt from his debtors.

16. If during maradhul maut a woman says that she has already received her mahr or she waives her mahr, then both acts are invalid. However, if there is evidence to support her in the claim of having received her mahr, her statement will be valid. If the heirs uphold the waiving of her mahr, the waiver too will be valid.

17. If during maradhul maut an insolvent man accords preferential treatment to a particular creditor by making a payment to him, such an act is not valid. The rights of all creditors are equally related to his estate which will be distributed among the creditors in proportion to the respective amounts owing. The preferential payment made will be reclaimed by the creditors.

18. The same rule pertaining to preferential treatment as mentioned in No. 17 above, will apply if a man pays his wife’s mahr during his maradhul maut or if he pays any outstanding wages/fees owing to employees. The payment thus made will not be valid.

NOTE: A payment of debt will only be described as preferential in the death of the debtor. While he is living, all payments made by him are valid since it cannot be claimed with certitude that his illness is in fact maradhul maut. However, on his death it will be conclusively established that the illness was in fact maradhul maut, hence the other creditors are entitled to annul the preferential payments.

19. A gift made to a non-heir in maradhul maut will be in the category of wasiyyat. If the value of the gift is less than the value of one third of the estate or equal to one third, it will be valid. Any amount in excess of one third the value of the estate is not valid and will be reclaimed by the heirs.

[Source: Kitaabul Meeraath pages 35-39]

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