Annulling a Marriage Because of an HIV Infection

Annulling a Marriage Because of an HIV Infection

As-Salam ‘Alaykum wa Rahmatu Allahi wa barkatu,

We were asked in regards to illness that would nullify a marital contract, if Aids (and HIV+) would be part of those illnesses within the Shafi’i Fiqh School.

The question was translated into Arabic then presented to the esteemed Shaikh Mustafa Sumeet in Hadramout, Yemen. This is his answer: سؤال عن الإيدز.

Bismillah

All Praise be to Allah the creator of the universe, and may peace and blessings be upon the most honorable of all the prophets, Mohammad, and his family, Companions (and Followers till the end of time.);

I was asked by my brother Abu Malik Ar-Rumi about the ruling within the Shafi’i school if one of the spouses was infected with Aids.

My Answer to his question was with the following:

The Shafi’i school stated that there are seven deficiencies that will grant a marriage the ability of breaking the contract: insanity, leprosy, ratq, qarn, wajb thakar al zawj & ‘anthe.

The husband can break the contract by insanity, leprosy, ratq & qarn.

The wife can break the contract by insanity, leprosy, wajb & ‘anah.

This is the authentic opinion of Imam Shafi’i, and has been narrated being the statement of ‘Umar, Ibn Umar, Ibn ‘Abbas, May Allah Accept them, Malik, Ahmed, Ishaq, Abu Thawr, May Allah Have mercy upon them. 

The proof the Shafi’i School used:

Narrated by ‘Abdul Allah bin ‘Umar he said: “The messenger of Allah married a woman from the house of Ghaffar, when it was the night of the wedding he said in her kishh wadh so he sent her back to her family” then he said: “You tricked me”.1

Narrated by ‘Umar B. al Khattab that he said: “Any man that marries a woman and finds her insane or has leprosy and sleeps with her then she gets her dowry, and that is a fine.”2

Narrated by ‘Ali B. Abi Talib he said: “Any man that marries a woman and she has leprosy, insanity or qarn, the husband then has the option to stay with her or divorce her, and if he touches her then she keeps the dowry for what he did with her.”3
These affairs can only be handled with sacred text. 4

The next question to be asked is are those the only cases that the Shafi’i school accepted to make the contract void or are there more?

At first sight you might assume that that is what the Shafiyyah have chosen and nothing else, like what Imam Nawawi said: “The total of these deficiencies are seven, each partner can find 5 of these in each other. Anything else doesn’t allow the option of ending the marriage5 or what was mentioned by Zakaryyah Al Ansari said: “Nothing else is allowed into this issue such as: bahq, fainting, bakr, sunnaan, istihada, blindness, zamana, mbaa, w khasian, khanuutha wadiha, ifdaa, ‘atheetaa (stool while having intercourse), and things that turn people away or continuous pus for these things do not allow either party to break the contract.”6

However, if you were to look through all the shafi’i’s statements you find in the midst of the assumption of limiting the option to only these you still find shafi’i scholars who have added other things to these seven such as endless fainting that has no hope of going away7, which is proof that they didn’t only limit this issue to the seven issues, as a matter of fact they focused more eliminating illnesses that would grant the option of breaking the contract rather than confining them to only seven.

The conclusion is that there aren’t only seven issues that would allow the separation.

By examining the Shafi’i’s statements you come to notice that they are only talking about the deficiencies that have been mentioned in the Quran and Hadith, but if we were to dive into the details of optional separation from the marriage and its causes we will come to realize that AIDS shares the same details as all the illnesses mentioned, such as:

  • All mentioned issues that effect the pleasure that one would have in marriage.

  • Being continent from sexual activity from those that have visible medical issues such as leprosy.

  • Fear of being infected with what is contagious like in the case of leprosy8.

Now lets look at the statement made by Imam Shafi’i when he was speaking about the reasoning behind granting the choice of separating a marriage in the cases of leprosy: “If one were to say is there any other proof aside from Hadith giving a spouse the option of separation? The Answer would be: Yes, leprosy according to physicians and travelling businessmen, affect males on a regular basis, and it is an illness that affects sexual organs severely, it would be rare to find anyone that would think of having sexual relations with an infected person, and even if one were to be born with this disease it is very rare for them to survive.”9

We can also see that the Shafi’i have answered to what seems as their Imam contradicting what was narrated in regards to contagious diseases.

Imam Mawurdi Stated: “If it is said: how could Shafi’i state that leprosy is infectious, while it is stated clearly that there aren’t any contagious diseases? We say to them, “Do you see the sore on the cattle and then it affects the next and the next and so on.”

The question is: “Who was infected first?” So, if the first one was not infected by something certainly then none of the rest would have gotten infected as well.

The answer in full is that Islamic legislation meant that the nature does not infect people as some physicians were saying, that being said it doesn’t mean that Allah couldn’t have placed a contagious disease in something of nature as he made fire to burn, and food to feed on, and water for agriculture.

The Prophet PBUH said: “An ill person with a contagious illness should not visit those that are well” and as for the statement of the prophet PBUH : “Who infected the first?” it was meant to as a response to their statement “If it wasn’t for the first one who infected me I wouldn’t have been infected” So he said: “Who Infected the First?” meaning that if the first was infected by Allah’s will then so are the rest”.

If said: Why did Shafi’i say leprosy is contagious, and did say Allah infect those with it? In response we would say: it is a metaphorical statement like when you say: the palm tree grew; the night shortened and the tree became fruitful. We say it that way, however we agree that Allah is the one who did it.”

By reading through all these points and issue we see that AIDS would fall under the deficiencies mentioned by the Shafi’i Scholars is that they were subjected to the optional separation. While being very close in its causes and effects to leprosy.

AIDS & Leprosy: Both cause weakness in the pleasure of marriage, loss of desire towards those who have it and those that are contagious.

The following are the effects that happen when a spouse is infected:

  1. Both husband and wife have the option of separating in the marriage, there is no difference by it happening at the beginning of the marital contract or afterwards or it happening before or after intercourse.

  2. The option of separation is not disregarded even if one spouse affected the other.

  1. If someone is infected with AIDS then they are no longer suitable for a well and healthy Muslim, so a parent should not allow their daughter to marry anyone that is infected with this disease 10, the legal guardian has the authority to forcefully stop his daughter or a female in his authority from marrying a male with AIDs(or HIV+)11 and this is due to her infecting herself and her offspring with such diseases, and this is equivalent to what the Shafi’i school said in regards to leprosy.

Another assumption to add, whether or not it is understood from the statements made, is that AIDs (not including HIV) to the Shafi’i scholars is an illness that has no hope of cure, which would mean that it would fall under the lack of pleasure from within a marriage such as those who lose their sexual desires.12

Imam Ibn Hajar Al Haytami has stated: “Their silence (ie: Imam An-Nawawi & Ar-Rafa’i) in regards to hopeless illnesses was due to their understanding that it is categorized as loss of sexual desire not a separate category”.13

Examples of hopeless illnesses: swelling of labia minora which causes great irritation due to urine passing through them, paralysis (sensory loss), old age and extreme penis growth. They also added vaginismus.

All of these illnesses are categorized as illnesses that affect intercourse.

Keep in mind that with all the info we just went through we will come to the conclusion that the wife can no longer be allowed to participate in the optional separation of the marriage contract, unless he married her while infected or was infected with AIDS after the marriage contract was written but before they have intercourse, and if AIDS happens???? When marrying and having intercourse with her, the optional separation is no more.

In conclusion: the ruling of AIDS (Includes HIV+) and issues that occur around it within the Shafi’i school are the same exact ruling of leprosy, both husband and wife have the option of separation whether at the contract writing or afterwards, with the possibility of it taking the status of loss of sexual desire (doesn’t include HIV+).

There are many statements of the Shafi’i school in regards to deficiencies such as what was said by Qadi Hussain; that any issue that affects the desire is suffice to terminate the contract.14 And it was also said that anything that effects ones image due to illness affecting the physical appearance, such as leprosy and extreme infection that produce extreme or continuous amounts of pus, that as mentioned by Abu A’sim mention that it was a statement by Shafi’i.15 This was also the statement made by Zahir Asarkhasi.16

Written by: Mustafa Hamid B. Sumeet

 (From Al Bayan By al ‘Imrani)

1 (Sunan Kubra Book of Shighaar by Bayhaqi No. 14150)

2 (Al Umm by Imam Shafi Vol. 5 pg 91)

3 (Sunnan Kubra By Bayhaqi No. 14229)

4 (Iqnaa By Shirbini vol. 2 pg 421)

5 (Rawdatut Talbeen Vol. 7 pg 177 Nawawi)

6 (AlGhurar Vol. 14 pg 470 Zakaryyah)

7 (Asna Al Matalib vol. 3 pg 176 Zakaryyah )

8 (Qalubi Vol. 3 pg 262)

9 (Al Umm Vol. 6 pg 219 Shafi)

10 (Adam: HIV would be the same here, while HIV only gets people infected, one with HIV doesn’t show symtomps until AIDs get is at full capacity)

11 (Minhaj Vol. 1 pg 209)

12 (Hawi Vol. 9 pg 349 Mawirdi)

13 (Tuhfatul Muhtaj Vol 30 pg 477)

14 (Wasit Vol. 5 pg 160 Ghazali)

15 (Rawdatu Talbeen Vol. 7 pg 177 Nawawi)

16 (Wasit vol. 5 pg 161 Ghazali)

 

 

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