The Risala : A Treatise on Maliki Fiqh pdf download

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Legal Consequences of vaginal penetration 

2.4a. Ghusl is obligatory  – The risala: a treatise on maliki fiqh

This penetration of the vagina by the head of the penis necessitates ghusl. 

Legal consequences in case of fornication 

It necessitates the hadd punishment (for zina) and the payment of the dowry and gives the married couples the status of being muhsan and makes a woman who has gone through a triple divorce halal for her original husband and invalidates hajj and fasting. 

[ It obliges the hadd punishment for fornication and obliges the payment of the dower in full because the contract on its own demands half of the dower. It accords the married couple the states of being muhsan provided that they are free, Muslim, sane and adult. 

It makes a woman lawful for her prior husband, if he is a free man. As for the woman divorced by a slave, it makes her lawful when he has divorced her twice. However, making the divorced woman who has been trebly divorced lawful for her prior husband must involve full penetration.

Thus full penetration is not a precondition for requiring ghusl, the hadd punishment and payment of the dowry, but full penetration and lack of barrier are preconditions for making the couple muhsan and making the divorced woman lawful.] 

 Invalidation of hajj and fasting  – The risala: a treatise on maliki fiqh

It invalidates hajj and fasting. 

[It absolutely invalidates hajj, be it obligatory or voluntary, intentional or by forgetfulness, when it occurs before standing at ‘Arafa or after it before the Tawaf al-Ifada and stoning the Jamra al-ÔAqaba on the Day of Sacrifice. He continues with his hajj and makes it up the following year.

It invalidates fasting, even without full penetration it, be it obligatory or voluntary, intentional or by forgetfulness. He must make it up and owes kaffara for the obligatory if it is done it deliberately. Otherwise there is only making up, as is the case with doing it deliberately in a voluntary fast.] 

Ghusl and menstruation  – The risala: a treatise on maliki fiqh

 When ghusl is done after menstruation A woman does ghusl immediately she sees the white liquid (qassa) which comes at the end of menstruation, or when she notices dryness, even if she notices this after a day or two days or only an hour. 

[As the blood of menstruation is mentioned as one of the causes which oblige ghusl, he goes on to clarify the sign which indicates that it has ended and that the womb is free of it. He mentioned that it has two signs: a white liquid and dryness.

When the menstruating women sees one of the two signs, then her purity is clear and she is adjudged to be pure from that moment and does not wait for the second sign. There is no minimum length of menstruation. Its minimum amount is one spurt. There is no maximum amount of it, but has a maximum in time, which is fifteen days.] 

[Khalil: Its maximum for someone who is having a first period is half a month (i.e. 15 days. If it stops before that and then she remains pure for half a month and then blood comes, it is a new menstruation.) as half a month is the minimum of purity (which is fifteen days and there is no limit to its maximum). 

maximum length of menstruation with normal periods

[And the maximum length of menstruation for someone with normal periods (even if she has only had one period) is fifteen days. There are three days of using precaution (i.e. above and beyond) her normal maximum. (i.e. if she normally menstruates five days and then menstruates after that and it does not stop after the full five days, she adds three days to it. If it does not stop after that, it is false menstruation.

But if her normal period is 15 days, she does not use precaution at all.) This is as long as it does not exceed half a month. (If it is 14, she uses one, and if 13, she uses 2.) Then she is pure (to fast, prayer and have intercourse even if the blood is flowing, because it is false menstruation and not menstruation.)] 

Resumed Bleeding  – The risala: a treatise on maliki fiqh

If bleeding starts again or if she sees any yellowish discharge, she must stop doing the prayer and then when the bleeding stops again she should do ghusl and start the prayer once more. 

[ If she sees the sign of purity and the judgement is that she is pure immediately, from the moment she sees purity, and then the blood resumes again or there is a yellowish discharge which does not have the color of blood, she stops praying and reckons that she is still menstruating that day and considers all of it to be the same period. It is one period since it has come before complete purity.

Or it may stop before the end of her normal period or extend after its normal length and before looking for purity or before it was complete. When the bleeding comes after complete purity or when it ended after her normal period and the days of looking for the end, then it is not menstruation, but abnormal bleeding, when it stops again, then she again does a ghusl and prays, and does not wait to see whether more blood comes again. This question is involving the woman whose purity is interspersed with bleeding to add the days together.] 

Lochia  – The risala: a treatise on maliki fiqh

Minimum of Lochia 

If the bleeding after childbirth (nifas) stops soon after the birth, a woman should do ghusl straightaway and start doing the prayer. 

[ If shortly after childbirth a woman sees the sign which indicates that it is ended with white discharge and dryness, then she washes and prays. “Soon after birth” has no minimum limit in relation to time and it has a minimum in relation to what emerges, which is one gush.] 

Maximum of Lochia  – The risala: a treatise on maliki fiqh

However, if bleeding continues longer than sixty days, then she does ghusl anyway, the bleeding is considered as istihada, and she does the prayer and fasts and her husband can have sexual intercourse with her. 

[ If the bleeding continues, she waits for sixty days, which it the maximum of its extent. If it stops after sixty, the matter is clear. If she continues to bleed after sixty, it is abnormal bleeding and she has a ghusl, prays and fasts and her husband can come to her.] 

Avoiding touching the penis: 

5.4a. After the ghusl 

You should be careful not to touch your penis with the inside of your hand when rubbing your body but if you do, having already completed your ghusl, you have to do wudu’ again. 

[When he does wudu’ on account of janaba after washing the uncleanness from his private parts with the intention of removing janaba, he should be careful about touching the penis. It is mentioned because it is the most common of several things which break wudu’. Wudu’ is only obliged by touching the penis with the inside of the hand.

It appears from this that wudu’ is not obliged for touching the penis unless it is done with the inside of the hand. That is the position of Imam Ashhab. The school of Ibn al-Qasim is that wudu’ is obliged for touching the penis with the inside of the hand or the fingers. In the Mukhtasar of Shaykh Khalil, he adds “or by the sides of the fingers”.

If you touch the penis deliberately or forgetfully and you have finished wudu’, then wudu’ must be repeated if you want to pray. Otherwise it is not necessary to repeat it until you wish to pray. as is the case with other ritual impurities. It is necessary to have an intention to repeat wudu’ if he wants to pray, because his major impurity has been removed and so some say that the intention for wudu’ must be renewed which is agreed upon.] 

touching the penis before ghusl is completed 

But if you touch it at the beginning of your ghusl, after having washed the areas included in wudu’, you should then go over them again with water in the right order and with the intention of doing wudu’. 

[ All or part, as is transmitted from Abu ‘Imran. It makes no difference whether he washes them first and then touches or whether he has washed some of them. Following the correct order is recommended. We consider that the correct sequence in wudu’ is sunna.

It is evident that he means that it is not obligatory in the sunna. It is said that it is referring to the obligations of wudu’, its sunnas and its meritorious actions. It is said that it refers to making water flow on the limbs and rubbing. On this basis and on the basis of what is before it must mean that it is obligatory. 

There is disagreement about the renewing the intention of wudu’. The author says that it is obliged to renew the intention of wudu’. If he intends to remove the major impurity, that is not enough. He is in the position of someone doing wudu’ who is not in janaba who intends to remove major impurity.

Al-Qabisi says that he is not obliged to renew it. The basis of the disagreement is whether each limb which is purifies first or its own is purified without the full completion. If we said the first, then it is obliged to renew it because its purity has gone with the ritual impurity and so it is obliged to make an intention to wash it again.

If we state the second, then it is not obliged to renew it because it remains and so we include it in the intention for the greater purity.

Chapter Six: Tayammum and Its Description – The risala: a treatise on maliki fiqh

When it is done 

[If you cannot find water, then you must do tayyamum, which is recommended. Linguistically tayammum means aiming for something. The Almighty says, “Do not have recourse to bad things,” (2:267) i.e. aim for them. In the Shari’a it is a legal act of worship by which the prayer becomes allowed. This means that the Shari’a has judged it. This exists in wudu’ and ghusl.

By it the prayer is permitted when wudu’ and ghusl are excluded because tayammum is only to make lawful. Wudu’ and ghusl are done in order to remove impurity. It is obligatory by the Book, Sunna and consensus. The Almighty says, “If you cannot find any water, then do tayammum with pure earth,” (4:43) and in Muslim the Prophet said, “We were preferred over people by three things: our rows were made like the rows of the angels, the entire earth was made a mosque for us and its earth is purification if we do not find water.”

The consensus is that tayammum is obligatory when water is lacking or the ability to use it lacking it. There are preconditions for the obligation: Islam, adulthood, sanity, absence of the blood of menstruation or lochia, the arrival of the time, lack of water or lack of ability to use it, and that there is no barrier over the limbs and nothing which precludes it.] 

On a journey 

If you are on a journey and you cannot find water, you have to do tayammum, provided that you do not expect to find any water before the time for the prayer has finished. 

[The situation is that either that there is no water to be found at all or a judgement that he will not find enough water for wudu’ or ghusl in a journey (or while resident), whether short or not, whether the traveler is healthy or not, and whether the journey is permissible or not, because the allowance for doing it on a journey or while resident does not have the precondition that the journey be for something permissible.

If the allowance is only in the journey, like breaking the fast in Ramadan, then the journey must be permissible and it must be a distance of at least four postal stages, like that for shortening the prayer. 

Thus the mere absence of water is only a reason for the obligation of tayammum when he despairs of finding water or he thinks it probable that there is no water. It is not the case if he is unsure or hopes for water or is certain of finding water within the time. 

What is meant by the obligation is the widest period of obligation. The one who has despaired is someone who has searched for it in a manner which is not arduous for someone like him. He is only obliged to seek if he hopes to find it or suspects its presence. If he is certain that he does not exist, then he does not look for it in the time. By ‘time’, the preferred time is meant.] 

Lack of ability – The risala: a treatise on maliki fiqh

You also have to do tayammum even when there is water, whether on a journey or staying in one place, if you are unable to touch water on account of illness or are disabled by illness to such an extent that although you could use it, you are unable to get to it and cannot find anyone else to bring it to you. 

[ This is when there is water and you are unable to use it, on a journey or at home, because of illness which prevents using it since you fear that using it will cause death, loss of use of a faculty or limb, increased illness, delayed recovery, or will actually cause an illness.

If he does not fear any of that, but is only pained by it, he must continue to do wudu’ or ghusl. So tayammum is obliged for someone who is healthy when water exists because he cannot use it because illness would occur, or for a sick person who is able to use it, but does not find anyone to bring it to him, even for a payment equal to the price which the seller would oblige or it or he does not find a vessel or he only finds a forbidden vessel or cannot pay for using it.] 

Danger 

The same applies to someone travelling who is near water but prevented from reaching it because of the fear of thieves or wild animals. 

[ This is also true about the traveler who is near water but cannot reach it out of fear of thieves as he must preserve his property and the property of others. The property must be more than what he would have to pay to buy water. It must be ascertained that they exist or he thinks that it is probable that they exist. Uncertainty is not taken into consideration.

 The same applies if he fears for himself from wild animals when he is certain about that or thinks that it is probable.] 

Certainty about reaching water  – The risala: a treatise on maliki fiqh

If a traveler feels certain that he will get to water within the time of the prayer, he avoids doing tayammum until the end of the time. 

[Whether he is in a journey where he shortens the prayer or not and he is certain that he will find enough water for wudu’ or ghusl, it is recommended that that he delay tayammum. The upshot of the fiqh in the matter is that one of the preconditions of the obligation of tayammum is the arrival of the time.

The judgement in it varies according to the state of the person doing tayammum because either he is certain that water will exist in the time or he will reach it or he despairs of finding it or reaching it, or he is unsure about finding it or reaching it in time or hopes to find it or reach it in time. The author clarifies these circumstances and indicates it when he says, “If a traveler feels certain.”

In fact, it is not particular to the traveler, but applies to all who are permitted to do tayammum due to the absence of water. When he is certain that water exists or that he will reach it within the time or thinks that it is probable that it exists or that he will reach it in time, then it is recommended to delay tayammum to the end of the time.] 

Certainty about not reaching water 

If he feels certain he will not get to water he should do tayammum at the beginning of the time. 

[This is about the absence of water or the failure to reach it in time after seeking for it. If there is what obliges seeking, then it is recommended that he do tayammum at the beginning of the time to obtain the excellence of the time because the excellence of water is despaired of. That is how it is judged by the one who thinks it probable that it will not exist within the time or will not be found in it.] 

Uncertainty about reaching water  – The risala: a treatise on maliki fiqh

If he does not know whether he will get to water or not, he should do tayammum in the middle of the time. This also applies to someone who is afraid that he will not be able to get to water but nevertheless hopes that he will. 

[ If he is unsure about finding it, it is recommended to do it in the middle of the time. It is affirmed by Shaykh Ahmad Zarruq that what is meant is uncertainty about reaching it. He said that there is no difference between it and what before it according to the Maliki School.

Although it is sound from the aspect of the judgement, the author’s words imply a difference when based on what is meant by the one who hopes. He said that the words of the author contain something different from the position of the School. That is because his literal words say that the one who hopes does not delay, but does tayammum in the middle of the time. It is not as he said.

His judgement is that of the one who is certain and the one who is certain delays to the end of the time. Ibn Harun said, “I do not know of anyone who transmitted that the one who hopes does tayammum in the middle of the time except Ibn Abi Zayd. Ibn Naji said that it is possible that it refutes his words. According to the words of Ibn Naji by “fears” the author means ‘suspects”.] 

Finding Water after doing Tayammum 

If, under any of these circumstances, you do tayammum and do the prayer and then come across water within the time of the prayer the following judgements apply. 

[ These seven who can do taymmum are: the sick person who cannot touch water, the sick person who cannot find anyone to bring him water, the traveler who is near water but is prevented from reaching it by fear of thieves or animals, the traveler who is certain that water will exist within the time, the one who despairs of finding it within the time, the one who has no knowledge, and the fearful one who hopes to find it.

This is what happens if such a person (except for the sick person who cannot use water then find water or the sick person who can, but does not find anyone to bring him the water) finds water. Finding water means having the ability to use it, its existence, or the existence of a vessel to bring it.]  

A sick person  – The risala: a treatise on maliki fiqh

A sick person who could not find anybody to bring water to him should do the prayer again. 

[It is recommended that he does the prayer again within the time. The rule for the sick person who does not find anyone to bring him water or any vessel with which to bring the water is to delay tayammum to the middle of the time.

If he does the necessary tayammum in the middle of the time and prays and then before the end of the time of the prayer then that which stops him from using the water is removed, as when he finds what will enable him to obtain it, then it is recommended for him to repeat the prayer within the time if he is restricted in that people do not come in to him often. If people come in to him often, then he has no restriction, then he does not have to repeat it.] 

Fearful person 

This also applies to someone who was afraid of wild animals or other dangers of that sort, and to a traveler who was afraid he would not get to water but hoped that he would. If you have done tayammum for any other reason, you should not repeat the prayer. 

[ The one who fears for himself from wild animals or for his property from thieves is like the sick person who does not find anyone to bring him water in the time. It is recommended that he repeat the prayer when he gets water within the time.

The result is that when the person who is afraid of animals does tayammum in the middle if the time, it is recommended that he repeat it in the time with four provisos. That is that he is certain that water exists or that he will find it were it not for his fear. His fear must be definite or likely and he ascertains the absence of what he fears and the existence of water itself.

If he is not certain that it exists or that he will reach it, or what he fears is clear, or none of it is certain and someone else finds it, he does not repeat if. If his fear is a simple doubt, then he always repeats it.] 

 A traveler  – The risala: a treatise on maliki fiqh

and to a traveler who was afraid he would not get to water but hoped that he would. 

[When he finds water within the time, it is recommended that he repeat the prayer he has prayed in the time allotted for it, which is the middle. Part of the subject is that it is better if it is advanced. What is meant by ‘fear’ in the words of the author is uncertainty about reaching it. It is recommended for the one who prayed in the time allotted to it to repeat it within the time.

How to do it 

Beginning tayammum 

To do tayammum you hit both hands on the ground – if anything clings to them it should be lightly shaken off – 

[This clarifies how tayammum is done. He strikes both hands on the ground. If he is missing a hand, he does tayyamum with the other. If he is unable to do it, someone does it for him. If he cannot delegate someone, he rubs his face in the dust. What is meant by ‘striking’ is not actual striking.

What is meant is to place his hands on the surface used for tayammum, soil or whatever. This ‘striking’ is an obligation. It is not a precondition that anything clings to his hands. If something clings to them, he shakes them lightly so that some people consider this shaking as one of the meritorious parts of tayammum so that it does not harm his face.] 

The Intention 

[Before beginning, the one doing tayammum must intend earth and nothing else with which tayammum is not valid. He must intend to make the prayer lawful or intend the obligation of tayammum in the first striking. If he is in minor impurity, he intends to make the prayer permissible from the lesser impurity.

If he is in greater impurity, he intends to make the prayer lawful from the greater impurity. If he does not call the major impurity to mind and thus omits the intention regarding the greater impurity intentionally or by forgetfulness, and prays with that tayammum, then he must always repeat the prayer.

If he intends the greater impurity, believing that he has it and then the opposite is clear, then it allows the lesser. When he intends the obligations of tayammum, it is enough for him, even if the intention of the greater does not occur to him, if he intends to remove the impurity, it is enough for him in the well-known position. Tayammum does not remove lesser impurity. It only makes the prayer permissible.] 

Wiping the face  – The risala: a treatise on maliki fiqh

then using both of them you wipe over your whole face.

[After shaking his hands, then he wipes his face and does not omit any of it. He does not miss the cartilage of the upper ear and other things. If he leaves any of the wiping of all of the face, even a little, then it is not allowed. He begins from the top, as in wudu’ and runs his hands over the length of it to his beard. He passes over the lines of the face, because the basis of wiping is doing it lightly.] 

Striking the ground, a second time  – The risala: a treatise on maliki fiqh

Then you hit both hands on the ground again

[The second blow is for wiping the hands by way of sunna. It is not said how the obligation is done in a sunna manner because we say after the obligation that the second comes after the first so if he fails to strike the earth the second time and then wipes his face and hands with the first, it is adequate.] 

Wiping the hands 

and then wipe your right hand and arm with your left hand. To do this you put the fingers of your left hand on the tips of the fingers of your right. Then you slide your fingers down the back of your right hand and arm, as far as the elbow, folding your fingers round it as you do so. thoroughly. 

[ The recommended manner of wiping is to first wipe the right with the left, putting the fingers on the right on the left except for the thumbs. The palm is passed over the top of the hand and arm to the elbow. It appears from the words of the author that the elbow is not wiped because it is the end. It is said that he meant including the elbows as is done with wudu’ since tayammum replaces it. 

Wiping to the elbows is sunna, and to the wrists is obligatory according to what is in al-Mukhtasar. Al-Bisami adds to it by saying that the well-known position of the school is that wiping is to the elbows is obligatory. The dispute is when it is confined to the wrists and he prays.

The well-known position is that he repeats the prayer if still within the time. An opposite position is that he must always repeat it. This consequence is rejected. Al-Muqaddamat (Ibn Rushd) prefers that which is followed in al-Mukhtasar, and Qadi ‘Iyad summarised it in his Qawa’id, and it is preferred. 

Fingers go between each other

The well-position of the school is that the fingers go between each other, and that is by the flat sides of the fingers, not the sides because they have not touched earth. The well-known position is also that a ring is removed and moving it from its place can be done instead of actually removing it. The difference between tayammum and wudu’ is said to lie in the fact that the ring is removed in tayammum but not in wudu’ because of the force of the water flowing in wudu’ which is not the case with earth. 

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