Asslamo Allaikum, Some of the brothers have convinced me to translate an article from India because there is nothing Solid in defense of the Hanafi Madhab on this issue so here is the translation.

Introduction merged into the main article, please approved this!

The Mas'ala of Hurmat-E-Musahara

An investigative study and response to Dr Fazlur-Rahman Madani (HA) (Ahl-e-Hadeeth)

(Professor Maulana) Helal Ahmed, President Jamiatul-Muslimeen Malegaon (Pin: 423203) Maharashtra India

Addendum: Shaykh (Mufti) Muhammad Shoaibullah Khan (HA), view inline Bangalore view inline (India)

Original Ahl-e-Hadeeth Fatwa published in Sautul Haq (pg 21 - 24)

Foreword:

Allah (SWT) has declared and decided the complete system of life in the noble Qur'aan. Relations are established in two ways:

1. By way of Lineage through fathers, grandfathers etc
2. By way of Sahar i.e. establishing relations with women.

In verse [4:23] those women are described with whom it is not permissible to establish conjugal relations due to lineage and in verse [4:22] those women are described which are impermissible to be taken into Nikah due to previous conjugational relationship (i.e. Sahar) by fathers.

In Arabic the word Nikah is used for describing a relationship between a man and a woman. Here Aqd (technically Nikah) can be taken to mean a lawful relationship (i.e. marriage) or an illegitimate relationship like fornication. In Fiqh the impassibility which is established with a woman (due to conjugational relationship) is called "Hurmat-e-Musaharah". According to Jamhoor (vast majority of Islamic scholars) this impermissibility i.e. "Hurmat-e-Musaharah" can be established due to a lawful relationship (i.e. marriage) or due to an illegitimate relationship like fornication, both.

In the Hanafi Madhab, the principle is that  "Hurmat-e-Musaharah" is not only established due to conjugational relationship but can also be established in the state of lust, due to touching of bodies, kissing, fondling, and seeing the private parts. These circumstances can occur deliberately or unintentionally, wilfully or under duress [Durr-e-Mukhtar, Vol 2-Pg 286-287).

However Ghair Muqalideen (those who don't make Taqleed of a Madhab) assert that "Hurmat-e-Musaharah" is only established through due to a lawful relationship (i.e. marriage) and not due to fornication. The Masail (issues), scenarios and questions which Ghair Muqalideen raise towards the Hanafees (adherents of the Hanafi Madhab) are a result of emotional rhetoric but the reality is that even if wilful and deliberate full fornication (sexual contact) occur the Ghair Muqalideen still don't believe that "Hurmat-e-Musaharah" is established. This principle of Ghair Muqalideen leads to Nikah between father/daughter, mother/son being permissible and this principle is discussed in the books of Ghair Muqalideen see Nazalul-Abrar (Vol 2-Pg 20-21). This principle of Ghair Muqalideen leads to a scenario where a man and a woman living together (without Nikah) and a girl and boy born to them can have multiple heinous permutations i.e. father/daughter can get married, son/mother can get married and brother/sister can get married to each other. 

These Fatawa are present in the books of Ghair Muqalideen in detail and elaborated at great length,

The Fatwa below entitled, "Sahwan Aurat say Malamasat ka Hukum (unintentional touching of a woman" is given by a well known Mufti of well known Ghair Muqalid institute by the name of "Al-Jamiatul-Muhamadiyya" at Malegaon (Maharashtra, India). It was published in their monthly Sautul Haq (pg 21 - 24). Respected Dr Fazlur-Rahman Madani (HA) has done his PhD from Madina Islamic university and he has refuted the established Hurmat-e-Musaharah" due to unintentional touching and we have tried to investigate his claims and respond to them.

We would like to point out that although in this Fatwa Dr Fazlur-Rahman Madani (HA) has discussed "touching" but Ghair Muqalideen don't believe in the establishment of "Hurmat-e-Musaharah" even through wilful and deliberate full fornication (sexual contact).

We request the readers to read and decide for themselves.

Introduction:

Dr Fazlur-Rahman Madani (HA) belongs to the Ahl-e-Hadeeth institute Jamia Muhammadiyya Mansoora and he is currently the Mufti in their monthly publication " "Sautul-Haq", writing in the section entitled "Fiqh-o-Fataawa". Respected Dr belongs to the sect which claims to extract evidence only from the Qur'aan and the Sunnah and only claims to follow Saheeh (authentic) narrations. It also rejects the statements and actions of a "Non-Prophet" without secondary evidence and equates Taqleed to "Shirk and Bid'ah".

Respected Dr, issued a Fatwa entitled "Sahwun Na-Mehram Aurat Say Malamasat Ka Huk'm (unintentional touching of a Maharem woman)" and on page 24 concluded, "Thus, due to the evidence (of Shariah) quoted your wife will not become forbidden on you". He has considered the following evidence (of Shariah):

1. Qiyas (deductive analogy)
2. Statment of Sayyidina Ibn Abbas (RA)
3. Narrations which have some discussion (on their authenticity)
4. Madhab of Ulamah and Qiyas (deductive analogy)
5. Qiyas (deductive analogy) based upon the narration which states that mistakes due to forgetfullness are pardoned
6. Qiyas (deductive analogy) based upon the fact that if Hurmat-i musahara [Marriageable relations being forbidden by touching] is not established due to fornication then how can it be established due to mere touching

We will attempt to analyse and scrutinise each and every one of evidence (of Shariah) given by Dr Fazlur-Rahman Madani (HA)

Fornication and prohibition of marriage:

Dr Fazlur-Rahman Madani (HA) states on page 21 that Allah (SWT) has clearly and categorically listed women whom a man cannot marry. Furthermore, fornication (let alone touching) is not listed as one of the reasons for a woman becoming forbidden.

حُرِّمَتۡ عَلَيۡڪُمۡ أُمَّهَـٰتُكُمۡ وَبَنَاتُكُمۡ وَأَخَوَٲتُڪُمۡ وَعَمَّـٰتُكُمۡ وَخَـٰلَـٰتُكُمۡ وَبَنَاتُ ٱلۡأَخِ وَبَنَاتُ ٱلۡأُخۡتِ وَأُمَّهَـٰتُڪُمُ ٱلَّـٰتِىٓ أَرۡضَعۡنَكُمۡ وَأَخَوَٲتُڪُم مِّنَ ٱلرَّضَـٰعَةِ وَأُمَّهَـٰتُ نِسَآٮِٕكُمۡ وَرَبَـٰٓٮِٕبُڪُمُ ٱلَّـٰتِى فِى حُجُورِڪُم مِّن نِّسَآٮِٕكُمُ ٱلَّـٰتِى دَخَلۡتُم بِهِنَّ فَإِن لَّمۡ تَكُونُواْ دَخَلۡتُم بِهِنَّ فَلَا جُنَاحَ عَلَيۡڪُمۡ وَحَلَـٰٓٮِٕلُ أَبۡنَآٮِٕڪُمُ ٱلَّذِينَ مِنۡ أَصۡلَـٰبِڪُمۡ وَأَن تَجۡمَعُواْ بَيۡنَ ٱلۡأُخۡتَيۡنِ إِلَّا مَا قَدۡ سَلَفَ‌ۗ إِنَّ ٱللَّهَ كَانَ غَفُورً۬ا رَّحِيمً۬ا

[4:23] Prohibited for you are your mothers, your daughters, your sisters, your paternal aunts, your maternal aunts, daughters of brother, daughters of sister, your mothers who suckled you, your sisters through suckling, mothers of your wives and your step-daughters under your care who are born of your women with whom you have had intercourse, though if you have not had intercourse with them, there is no sin on you, and the wives of your sons from your loins, and that you combine two sisters (in wedlock), except what has passed. Surely, Allah is Most-Forgiving, Very-Merciful.

Allah (SWT) then goes further and categorically states that all other women (besides the ones explicitly mentioned) are declared permissible (to marry):

وَٱلۡمُحۡصَنَـٰتُ مِنَ ٱلنِّسَآءِ إِلَّا مَا مَلَكَتۡ أَيۡمَـٰنُڪُمۡ‌ۖ كِتَـٰبَ ٱللَّهِ عَلَيۡكُمۡ‌ۚ وَأُحِلَّ لَكُم مَّا وَرَآءَ ذَٲلِڪُمۡ أَن تَبۡتَغُواْ بِأَمۡوَٲلِكُم مُّحۡصِنِينَ غَيۡرَ مُسَـٰفِحِينَ‌ۚ فَمَا ٱسۡتَمۡتَعۡتُم بِهِۦ مِنۡہُنَّ فَـَٔاتُوهُنَّ أُجُورَهُنَّ فَرِيضَةً۬‌ۚ وَلَا جُنَاحَ عَلَيۡكُمۡ فِيمَا تَرَٲضَيۡتُم بِهِۦ مِنۢ بَعۡدِ ٱلۡفَرِيضَةِ‌ۚ إِنَّ ٱللَّهَ كَانَ عَلِيمًا حَكِيمً۬ا

[4:24] (Also prohibited are) the women already bound in marriage, except the bondwomen you come to own. It has been written by Allah for you. All (women), except these, have been permitted for you to seek (to marry) through your wealth, binding yourself, (in marriage) and not only for lust. So, to those of them whose company you have enjoyed, give their dues (dower) as obligated. There is no sin on you in what you mutually agree upon after the (initial) agreement. Surely, Allah is All-Knowing, All-Wise.

Respected Dr (HA) further states that if fornication cannot be used to establish Iddah (waiting period after divorce), lineage, inheritance then how can it be used to establish Hurmat-i musahara [Marriageable relations being forbidden by touching].

Respected Dr (HA) further deduces through Qiyas (deductive analogy) that if a person fornicates with his mother-in-law or daughter of his wife then his wife will not become forbidden for him because she remains part of other women (who are permitted) and fornication will not push his wife out of this (original) category.

1st Response:

However, on the contrary the issue of impermissibility due to fornication is well established. Allah (SWT) categorically states in the Qur'aan that it is impermissible for the son to marry a woman whom the father has established relationship (legitimately or by fornication):

وَلَا تَنكِحُواْ مَا نَكَحَ ءَابَآؤُڪُم مِّنَ ٱلنِّسَآءِ إِلَّا مَا قَدۡ سَلَفَ‌ۚ إِنَّهُ ۥ ڪَانَ فَـٰحِشَةً۬ وَمَقۡتً۬ا وَسَآءَ سَبِيلاً

[4:22] Do not marry those women whom your fathers had married except what has passed. It is indeed shameful and detestable, and it is an evil practice.

Similar is the case of fornicating with mother-in-law or daughter of his wife because they are the same category as described in the previous verse and no different as defined by the same verses of the Qur'aan:

[4:23] ... mothers of your wives and your step-daughters under your care who are born of your women with whom you have had intercourse...

2nd Response:

Sayyidina Rasul-ullah (Sallallaho Alaihe Wassallam) proved lineage through resemblance and declared segregation as proven from the authentic narration of Saheeh Muslim:

حَدَّثَنَا قُتَيْبَةُ بْنُ سَعِيدٍ، حَدَّثَنَا لَيْثٌ، ح وَحَدَّثَنَا مُحَمَّدُ بْنُ رُمْحٍ، أَخْبَرَنَا اللَّيْثُ، عَنِ ابْنِ شِهَابٍ، عَنْ عُرْوَةَ، عَنْ عَائِشَةَ، أَنَّهَا قَالَتِ اخْتَصَمَ سَعْدُ بْنُ أَبِي وَقَّاصٍ وَعَبْدُ بْنُ زَمْعَةَ فِي غُلاَمٍ فَقَالَ سَعْدٌ هَذَا يَا رَسُولَ اللَّهِ ابْنُ أَخِي عُتْبَةَ بْنِ أَبِي وَقَّاصٍ عَهِدَ إِلَىَّ أَنَّهُ ابْنُهُ انْظُرْ إِلَى شَبَهِهِ وَقَالَ عَبْدُ بْنُ زَمْعَةَ هَذَا أَخِي يَا رَسُولَ اللَّهِ وُلِدَ عَلَى فِرَاشِ أَبِي مِنْ وَلِيدَتِهِ فَنَظَرَ رَسُولُ اللَّهِ صلى الله عليه وسلم إِلَى شَبَهِهِ فَرَأَى شَبَهًا بَيِّنًا بِعُتْبَةَ فَقَالَ ‏"‏ هُوَ لَكَ يَا عَبْدُ الْوَلَدُ لِلْفِرَاَشِ وَلِلْعَاهِرِ الْحَجَرُ وَاحْتَجِبِي مِنْهُ يَا سَوْدَةُ بِنْتَ زَمْعَةَ ‏"‏ ‏.‏ قَالَتْ فَلَمْ يَرَ سَوْدَةَ قَطُّ وَلَمْ يَذْكُرْ مُحَمَّدُ بْنُ رُمْحٍ قَوْلَهُ ‏"‏ يَا عَبْدُ ‏"‏ ‏.‏

Sa'd b. Abu Waqqas and Abd b. Zam'a (Allah be pleased with them) disputed with each other over a young boy. Sa'd said: Messenger of Allah, he is the son of my brother 'Utba b. Abu Waqqas as he made it explicit that he was his son. Look at his resemblance. Abd b. Zam'a said Messenger of Allah, he is my brother as he was born on the bed of my father from his slave-girl. Allah's Messenger (way peace he upon him) looked at his resembl-. ance and found a clear resemblance with 'Utba. (But) he said: He is yours 0 'Abd (b. Zam'a), for the child is to be attributed to one on whose bed it is born, and stoning for a fornicator. Sauda bint Zam'a, O you should observe veil from him. So he did not see Sauda at all. Muhammad b. Rumh did not make a mention (of the words):" O Abd." [Muslim]

3rd Response:

There is a consensus of opinion on the matter that if a son is born from a womb then he is forbidden on the mother. Similarly all relations (of impermissibility) are established even if the relation was due to fornication.

There is no difference of opinion on the matter.

The Aathaar (traditions) of Ibn Abbas (RA):

Evidence of Non-Prophet according to Ahl-e-Hadeeth?

Respected Dr (HA) then proceeds to produce some Aathaar (traditions) on Sayyidina Ibn Abbas (RA) to back his claim. Before proceeding further we would like to state that our honourable Dr (HA) belongs to a sect which considers taking (direct) evidence from a Non-Prophet Shirk and Bid'ah therefore it is permissible for someone like Imam Bukhari (RA) to bring the evidence of a Non-Prophet like Sayydina Ibn Abbas (RA) but how can it be permissible for Dr (HA) who is an Ahl-e-Hadeeth to do the same?

First Athar (tradition) of Ibn Abbas (RA):

Respected Dr (HA) produces from Fathul-Bari of Imam Al-Hafidh Ibn Haj'r Asqalani (RA):

وقال عكرمة عن ابن عباس : إذا زنى بأخت امرأته لم تحرم عليه امرأته

Sayyidina Ikramah (RA) narrates that Sayyidina Ibn Abbas (RA) stated that the wife of the one who fornicates with his Sister-in-law doesn't become prohibited on him. [Fathul-Bari, Bayhaqi]

Response:

Our response is that this discussion is about Sister-in-law and where have we objected to this matter?

Second Athar (tradition) of Ibn Abbas (RA):

Respected Dr (HA) then produces from Fathul-Bari of Imam Al-Hafidh Ibn Haj'r Asqalani (RA):

وصله البيهقي من طريق هشام عن قتادة عن عكرمة بلفظ في رجل غشي أم امرأته قال " تخطى حرمتين ولا تحرم عليه امرأته " وإسناده صحيح . وفي الباب حديث مرفوع أخرجه الدارقطني والطبراني من حديث عائشة " أن النبي صلى الله عليه وسلم سئل عن الرجل يتبع المرأة حراما ثم ينكح ابنتها أو البنت ثم ينكح أمها ، قال : لا يحرم الحرام الحلال إنما يحرم ما كان بنكاح حلال " وفي إسنادهما عثمان بن عبد الرحمن الوقاصي وهو متروك ، وقد أخرج ابن ماجه طرفا منه من حديث ابن عمر لا يحرم الحرام الحلال ، وإسناده أصلح من الأول

Sayyidina Ibn Abbas (RA) narrates about a man who fornicates with his mother-in-law that he violates two impermissible matters but his wife would not become prohibited to him. There is a Marfoo tradition which is also narrated by Tabarani and Dar-qutni on the authority of Sayyidina Aisha (RA) that if a man fornicates with a woman and then marries the daughter or fornicates with daughter but then marries the mother that Haram (fornication) doesn't make future Halal (Nikah) invalid. Haram invalidates when there is Nikah. However both of these narrations have Uthman Ibn Abdur-Rahman Al-Waqasi (RA) who is Matrook. Ibn Maja has narrated the part which states "Haram (fornication) doesn't make future Halal (Nikah) invalid" from the report of Sayyidina Ibn Umar (RA) and stated that the chain is better then the first one.

First Response:

The same Fahul-Bari has another narration from Sayyidina Ibn Abbas (RA) from Abu Nas'r (RA) which states that the Nikah breaks!

ويذكر عن أبي نصر أن ابن عباس حرمه وأبو نصر هاذا لم يعرف سماعه من ابن عباس

The Ahle-e-Hadeeth at this point may point out the statement of Imam Bukhari (RA) that there is no "Sama" between Abi Nasr (RA) and Sayyidina Ibn Abbas (RA). There are two answers to this:

Firstly, Imam Al-Hafidh Ibn Haj'r Asqalani (RA) has reported in At-Tahdheeb that when Sayyidina Abi Nasr Al-Asa'di (RA) narrates from Sayyidina Ibn Abbas (RA) it is authentic.

وقال أبو زرعة: "أبو نصر الأسدي الذي يروي عن ابن عباس: ثقة". مترجم في التهذيب

Secondly, Imam Tabari (RA) and Allamah Aini (RA) both narrate the incident of Sayyidina Abi Nasr Al-Asa'di (RA) enquiring about the Tafseer of Surah Al-Faj'r (Chapter 89):

حدثنا ابن حميد، قال: ثنا مهران، عن سفيان، عن الأغرّ المِنقريّ، عن خليفة بن الحصين، عن أبي نصر، عن ابن عباس، قوله: ( وَالْفَجْرِ ) قال: النهار.

Second Response:

If the strength of above report is defective then Sufyan Thawri (RA) has also narrated the Fatwa of Sayyidina Ibn Abbas (RA) in his compilation with his chain (Marfoo) about the man with 7 children. The same is also reported in Fathul-Bari as follows (with a different chain):

أبو نصر هذا بسكون الصاد المهملة يذكر عنه أن ابن عباس حرمه أي حرم العقد الذي بينه وبين امرأته بوطء أمها ووصله الثوري في جامعه من طريقه ولفظه أن رجلا قال إنه أصاب أم امرأته فقال له ابن عباس حرمت عليك امرأتك وذلك بعد أن ولدت منه سبعة أولاد كلهن بلغ مبلغ الرجال قوله وأبو نصر هذا لم يعرف سماعه عن ابن عباس هكذا في رواية الأكثرين وفي رواية ابن المهدي عن المستملي لا يعرف بسماعه وعدم المعرفة بسماعه عن ابن عباس هو قول البخاري وعرفه أبو زرعة بأن أسدي وأنه ثقة وروي عن ابن عباس أنه سأله عن قوله عز وجل والفجر وليال عشر

A man reported that he committed fornication with the mother of his wife so Sayydina Ibn Abbas (RA) reported that your wife has become prohibited to you and this was in the circumstances that he had 7 children from his wife and one of the boys had become mature.

Consensus of opinion that fornication doesn't make wife Haram?

Wild claims!

The respected Dr Saheb (HA) has then made wild claims that fornication (with mother of the wife) doesn't make wife Haram but he has overlooked the Fatawa of many Sahabah, Taba'een and Taba Taba'een (RA) This is also the opinion of:

1. Sayyidina Umar (RA)
2. Sayyidina Ibn Masood (RA)
3. Sayydina Ibn Abbas (RA)
4. Sayyidina Jabir (RA)
5. Sayyidina Imran Ibn Haseen (RA)
6. Sayyidina Hasan (RA)
7. Sayyidina Qatada (RA)
8. Sayydina Saeed Ibn Musayyab (RA)
9. Sayyidina Salman Ibn Yasar (RA)
10. Sayyidina Salim Ibn Abdullah (RA)
11. Sayyidina Mujahid (RA)
12. Sayyidina Ata (RA)
13. Sayyidina Ibraheem (RA)
14. Sayyidina Aamir (RA)
15. Sayyidina Hamaad (RA)
16. Imam Abu Haneefa (RA)
17. Imam Maalik (RA)
18. Imam Ishaq (RA)
19. Imam Ahmed Ibn Hanbal (RA)
20. Imam Abu Yusuf (RA)
21. Imam Muhammad (RA)
22. Imam Zufar (RA)
23. Imam Sufyan Al-Thawri (RA)
24. Imam Auzai (RA)

It is astonishing for the respected Dr Saheb (HA) to claim such a thing when it is clearly mentioned that this isn't about merely touching but lust is a pre-condition in looking and in touching (and not just touching without lust). In addition its limits and conditions have also been explained.

أخرجه ابن أبي شيبة في مصنفه من حديث أم هانئ ـ رضي الله عنها ـ ولفظه: من نظر إلى فرج امرأة لم تحل له أمها ولا ابنتها.

Umm Hani (RA) narrates that whoever looks at the private parts of a woman (with lust) then her mother and daughter becomes Haram on him. [Ibn Abi Shaybah]

Touching with lust is equivalent to fornication and this is agreed upon by Imam Abu Haneefa (RA), Imam Sufyan Al-Thawri (RA), Imam Malik (RA), Imam Auzai (RA) and even Imam Shaf'ae (RA).

أما قول عمران بن حصين فوصله عبد الرزاق من طريق الحسن البصري عنه قال من فجر بأم امرأته حرمتا عليه جميعا

Hasan Al-Basri (RA) narrates from Sayyidina Imran Ibn Haseen (RA) that when a man fornicates with the mother (of his wife) then both women become prohibited on him. [Imam Al-Hafidh Ibn Haj'r Asqalani (RA) has declared the chain of this to be "Laa Ba'as" meaning nothing wrong with it]

وقال أبو هريرة لا تحرم حتى يلزق بالأرض يعني يجامع

Imam Bukhari (RA) has reported Ta'leequn on the authority of Sayyidina Abu Huraira (RA) that in this case his wife will not become prohibited on him until he joins the Earth (i.e. fornicates with the mother of the wife).

 ويروى عن عمران بن حصين وجابر بن زيد والحسن وبعض أهل العراق تحرم عليه

It is narrated from Sayyidina Imran Ibn Haseen (RA), Sayyidina Jabir IBn Zayd (RA), Sayyidina Hasan (RA) and some amongst those of knowledge from people of Iraq that they considered that the wife becomes Haram. [Fathul-Bari]

 وقال ابن قدامة فى المغنى شرحا لهذا يعنى أنه يثبت به تحريم المصاهرة، فإذا زنى بامرأة حرمت على أبيه وابنه وحرمت عليه أمها وابنتها

The classical book of Hanbali Fiqh "Al-Mughni" states, "If a man fornicates with a woman then this woman becomes prohibited on the father and son of the man (who fornicates) and the mother and daughter of the woman becomes prohibited on him.

وقال العلامة البهوتي رحمه الله في كشاف القناع: (ويثبت تحريم المصاهرة بوطء حلال إجماعا وبوطء حرام كزنا وبوطء شبهة...ولا يثبت تحريم المصاهرة بمباشرتها...ولو(لشهوة) لقوله تعالى:

فإن لم تكونوا دخلتم بهن فلا جناح عليكم

‘Allamah Mansur ibn Yunus al-Bahuti writes in in Kashaf al-Qina of Hanbali Madhab, "Hurmat-E-Musahara is proven (and established) from permissible sexual intercourse according to all Ulamah. And it is also proven (and established) from Haram i.e. fornication. And when in doubt then sexual intercourse  (proven) also establishes it because sexual intercourse can be taken as "Nikah" as in the general understanding of the verse [4:22] Do not marry those women whom your fathers had married except what has passed. It is indeed shameful and detestable, and it is an evil practice...

وإنما تنازع العلماء في الزنا المحض هل ينشر حرمة المصاهرة فيه نزاع مشهور بين السلف والخلف . التحريم قول أبي حنيفة وأحمد والجواز مذهب الشافعي ; وعن مالك روايتان

Shaykhul-Islam Ibn Taymiyyah (RA) states, "So the Ulamah have differed upon fornication if it will establish Hurmat-E-Musahara? This is a matter of difference of opinion amongst Ulamah of Salaf (and Khalaf. Imam Abu Haneefa (RA) and Imam Ahmed Ibn Hanbal (RA) have ruled that it is established. Imam Shaf'ae (RA) rules that it isn't and there are two reports from Imam Malik (RA).

ولكن النزاع المشهور بين الصحابة والتابعين ومن بعدهم في الزنا هل ينشر حرمة المصاهرة ; فإذا أراد أن يتزوج بأمها وبنتها من غيره ؟ فهذه فيها نزاع قديم بين السلف ; وقد ذهب إلى كل قول كثير من أهل العلم : كالشافعي ومالك في إحدى الروايتين عنه : يبيحون ذلك ; وأبو حنيفة وأحمد ومالك في الرواية الأخرى : يحرمون ذلك 

Shaykhul-Islam Ibn Taymiyyah (RA) also states, "There is disagreement between the Sahaba and Taba'een and those who came after them if fornication will establish Hurmat-E-Musahara? This is an old (and well known) disagreement amongst the Salaf and many of those amongst the people of knowledge have given the opinion (either way), for example Imam Shaf'ae (RA) and in one report Imam Malik (RA) have ruled that it won't but Imam Haneefa (RA), Imam Ahmed Ibn Hanbal (RA) and in another report of Imam Malik (RA) it is prohibited (i.e. fornication establishes Hurmat-E-Musahara).

The statements of Shaykhul-Islam Ibn Taymiyyah (RA) establish beyond any doubt many amongst the Salaf held the opinion that fornication establishes Hurmat-E-Musahara.

Mistakes due to forgetfulness:

عن ابن عباس رضي الله عنهما ، أن رسول الله صلى الله عليه وسلم قال : ( إن الله تجاوز لي عن أمتي الخطأ والنسيان وما استكرهوا عليه )

On the authority of Ibn 'Abbaas (radiAllahu anhumaa) that the Messenger of Allah (sallAllahu alayhi wa sallam) said : Verily Allah has pardoned [or been lenient with] for me my Ummah : their mistakes, their forgetfulness, and that which they have been forced to do under duress.[Ibn Maja, Bayhaqi]

Respected Dr Saheb (HA) then produces the above narration to state that mistakes due to forgetfulness are forgiven!

Response:

Islamic Shariah has prevented those with limited knowledge to give opinion with regards to Shariah because such a person will get misguided and will misguide others!

Respected Dr Saheb (HA) has falsely used his logic and applied the narration about forgetfulness to Islamic Hudud (punishment) when it simply doesn't apply. The matters which warrant Islamic Hudud (punishment) cannot be made valid null and void by pleading forgetfulness.

Consider the following verse of the Qur'aan:

قُلۡ يَـٰعِبَادِىَ ٱلَّذِينَ أَسۡرَفُواْ عَلَىٰٓ أَنفُسِهِمۡ لَا تَقۡنَطُواْ مِن رَّحۡمَةِ ٱللَّهِ‌ۚ إِنَّ ٱللَّهَ يَغۡفِرُ ٱلذُّنُوبَ جَمِيعًا‌ۚ إِنَّهُ ۥ هُوَ ٱلۡغَفُورُ ٱلرَّحِيمُ

[39:53] Say (on My behalf), .O servants of Mine who have acted recklessly against their own selves, do not despair of Allah‘s mercy. Surely, Allah will forgive all sins. Surely, He is the One who is the Most-Forgiving, the Very-Merciful.

If the case of pleading mistake, error or forgetfulness was valid then the entire Islamic penal system would have become null and void by quoting the verse above. The reality is that Sayyidina Rasul-ullah (Sallallaho Alaihe Wassallam) did not abandon Islamic Hudud (punishment) due to this excuse!

Rulings on Accidental Situations: Clutching at Straws! 

Another argument put forth by Ahl-e-Hadeeth that such accidents happen rarely in life and rulings cannot be given on accidental circumstances and situation.

This is really clutching at straws!

An easy example for this is a dog licking the milk. Although it is an accident (and nobody is at fault) but the whole of milk within the bowl is rendered impermissible to consume. None of the Scholars of Islam have issued a ruling that since this is an accident the matter should be ignored.

Propaganda against Bahishti Zewar! 

The following has been recorded in Bahishti Zewar:

1. If a female touches a man with lust, the female's mother and daughter cannot marry that man.
2. If a man touches a female with lust, the man cannot marry that females mother and daughter's.
3. If a man goes to wake his wife up in the night and mistakes his wife's daughter (from his wife's previous or present marriage,) or his mother-in- law, to be his wife, he touches either of them with lust and desire, his wife will become unlawful on him. There is no way for them to become lawful on one another and it is compulsory for the husband to divorce his wife.

There are numerous youtube videos, blog and articles from the Ahl-e-Hadeeth mocking this Mas’ala, claiming it to be baseless, mockery of Islamic Shariah, a joke etc. The text above proves beyond doubt the authenticity of this Mas’ala and that there were plenty amongst the people of knowledge from both the Salaf and the Khalaf who held this opinion to be valid.  The great dishonesty is that that the words "with lust" are often deliberately dropped and the Mas'ala has been made to look foolish i.e. that any accidental touching of the mother of the wife invalidates Nikah!

Dear Reader...

We have scrutinised the Fatwa of Dr Fazlur-Rahman Madani (HA) or the claims to those who agree with the authenticity of his Fatwa. All we ask for our dear readers is to read (carefully) and ponder with great deliberation if the proofs that he has quoted are indeed from Qur’aan or Sunnah or are his sources truly established in Qur’aan or Sunnah?

You read (carefully) and decide!

Hazrat,

FANTASTIC STUFF....I found the few remaining references therein and added it.

May Allah (SWT) reward Mufti Saheb and his family and you and your family in this world and the next (Ameen).