Imam ash-Shirāzi, may Allāh have mercy upon him, said in the Muhaźźab,

Istimtā’ of whatever is in between the navel and the knee is harām. Abu Bakr Ishāq said “It is not harām without sexual intercourse of the farj (vagina) due to his saying, Salutations of Allah and His Peace upon him, “Perform anything other than nikāh”, and because sexual intercourse is harām due to the aźā. Thus the prohibition is restricted to this, just like intercourse of the dubr (anus). The maźhab (the relied upon) is the first due to what is narrated by ‘Umar, may Allah be pleased with him, “I asked the Prophet, Salutations of Allah and Peace upon him, What is halāl for a man with regard to his wife when she is menturating? He replied: Whatever is above the Izār (a wrapper for covering the lower part of the body).”

Commentary

Imam an-Nawawi, may Allah have mercy upon him in the commentary of the above, said,

The Hadīth of Anas

As for the first hadīth, it is part of a hadīth narrated by Anas, may Allah be pleased with him, “That the Jews, when their women menstruate, would leave them from the house, and will not eat or have intercourse with them in the house. Thereupon the companions of the Prophet, Salutations of Allah and His Peace upon him asked, and thus Allah Most Glorious revealed : { They asked you about the mahīdh (mensturation) } as per the Quranic verse. Thereafter, the Messenger of Allah, Salutations of Allah and His Peace upon him said: Perform anything other than nikāh”, narrated by Muslim.

The Hadīth of ‘Umar

As for the hadīth of ‘Umar, may Allah be pleased with him, it is narrated by Ibn Maja and al-Baihaqi by meaning. It is also narrated in the two sahīhs from ‘Āisha, may Allah be pleased with her who said “when one of us menstruates and the Prophet, Salutations of Allah and His Peace upon him desires to make mubāshara with her, he would call upon her to wear the Izār and then make mubāshara with her. She then said: So who amongst you posses irbah (ability to restrain desire) as how the prophet posses irbah?”. And there is also a hadīth from Maimūna, may Allah be pleased with her narrated by Bukhāri and Muslim. In a narration “He made mubāshara with his wives above the izār.” which refers to the period during menstruation. The intended meaning of  mubāshara here is skin contact in whatever manner.

The Ruling

There are three wajhs (opinions of the aśhāb) with regard to the mubāshara of the menstruating woman between the navel and the knees. The aśah (relied upon) opinion of the jumhūr of the aśhāb is that: It is harām. There is naś (saying of ash-Shāfi’ī) from ash-Shafi’ī, may Allah have mercy upon him, in the Umm, the Buwatī and the Ahkām al-Qurān. The author of al-Hāwi said: This is the opinion of Abū al-‘Abbās and Abū ‘Alī Bin Abū Huraira. This has also been affirmed by the authors of the mukhtasars. They made hujja with the Saying of Allah {Keep away from the wives during menstruation}, the aforementioned hadīth and since this area (between the navel and the knees) is the harīm (surrounding areas) of the farj and one who pastures around the prohibited will soon be entering into the prohibited. Those of this opinion responded to the aforementioned hadīth of Anas in that it is accorded to mean kissing, touching of the face, hand and its likes from what is usual by most people. This is because most of them when they do not do istimtā’ by intercourse will do so by what we mentioned, not with what is below the izār. The second wajh is that it is not harām. This is the opinion of Abū Ishāq al-Marwazī transmitted by the author of al-Hawi from Abū ‘Alī Bin Khairān. I saw that he affirmed this in the Kitab al-Latīf attributing it to Abū al-Hasan Bin Khairān, who is from our aśhāb, and he is not Abū ‘Alī Bin Khairān. The author of al-Hawi preferred this opinion in his book, al-Iqnā’ as well as ar-Rūyani in the Hilya. And this is more qawī considering the proofs due to the hadīth of Anas, may Allah be pleased with him. This is because it is explicitly clear in permitting the above. As for the mubāshara of the Prophet, Salutations and Peace be upon him above the izār, it is accorded to imply mustahab (sunna), to unite between his saying, Salutations of Allah and His Peace upon him and his actions. These scholars also interpreted the izār in the hadīth of ‘Umar to refer to the farj itself and they cited it from arabic lugha (lexicology). They vocalized this in a poetry. Further, the mubāshara of the Prophet, Allah’s Salutation and His Peace upon him over the izār is not a tafsīr for the izār in the hadīth of ‘Umar, may Allah be pleased with him. Rather, it is accorded to imply of its mustahāb, as mentioned earlier.
The third wajh: If the one who does mubāshara below the izār is confident with self control of his nafs away from the farj, due to the weakness of his shahwa (desire) and the strength of his wara’, it is permissible. Otherwise it is not permissible. This is transmitted by the author of al-Hāwi and they relayed it from Abū al-Fayyādh al-Baśrī and he is hasan.

Abū ‘Alī as-Sinjī, al-Qadhī Husain and al-Mutawallī quoted two qauls (opinions of ash-shāfi’ī) in this issue in place of the first two wajhs (opinions of the aśhāb). Al-Qādhī said: The jadid is harām (prohibition) while the qadīm is that it is jawāz (permissible). And then upon the opinion of those who do not considered it harām is that it is makrūh. Al-mutawallī and others explicitly mentioned this.

Istimtā’ of Other Areas

This is the ruling of istimtā’ of whatever is between the navel and the knees. As for other than that, the mubāshara of them is halāl by ijmā’ (consensus) of the muslims. Ash-Sheikh Abū Hāmid, al-Mahāmilī in the Majmū’, Ibnu Śabbāgh, al-Abdarī and others cited the ijmā’ with regards to this . As for what is transmitted by the author of al-Hāwi from ‘Ābīda as-Salmānī, the Imām who is a tābi’īn, that the Prophet, Salutations of Allah and His Peace upon him, did not do mubāshara from any part of his body, with any part of his wives’ body, I do not strongly believe that it is śahīh from him. Even if it is śahih then it contradicts the well known śahīh hadiths of his mubāshara, Allah’s Salutation and His Peace upon him, above the izār as well as his permission to do so by his saying, Allah’s Salutation and His Peace upon him, “Perform anything except nikāh”. It also contradicts the ijmā’ of those before and after him. Allah knows best.

Menstrual Blood on the Izār

Further, there is no difference whether or not there is anything such as menstrual blood on top of the place where one does istimtā’ above the izār. Al-Mahāmili in the Tajrīd and a group from the mutaākhirun transmitted as a wajh: that it is harām if there is something from menstrual blood on top of it. This is because it is aźā. This wajh is shāź (strange) and ghalat (incorrect). The śawāb (correct) is the first. The aśhāb affirmed this from all the tarīqas (transmissions of the maźhab) due to the generality of the hadīths. This is because the aśl is ibāha (permissibility) until a zhāhir (manifest) proof establishes it to be prohibited (harām). And the qiyās (analogy) applies where there is other najis upon it.

Istimtā’ of the Navels and the Knees itself

As for the istimtā’ of the navel and knees itself, and what is adjacent i.e. sides and behind it, I do not see, with regard to it, any naś attributed to our aśhāb. Al-mukhtār al-jazmu (the affirmed relied upon view) is that it is permissible due to the generality of his saying, Allah’s Salutation and Peace upon him, “Perform anything except nikāh”. It is also implied with what is concluded from the khilāf (difference of opinion) with regard to it being the ‘aura. If we say it is the ‘aura, then it is as what is between them. If we say, as per the maźhab: it is not the ‘aura, then it is affirmed to be permissible as per what is above and below it.

Allah knows best.

The Maźhabs of the ‘Ulama’

With regard to the maźhabs of the ‘ulamā’ pertaining to the mubāshara of what is between the navel and the knees without intercourse is as follows. We had previously mentioned the differences of opinion in our maźhab and its proofs. And amongst those who are of the opinion of it being harām are Abū Hanīfa and Mālik. Ibnu al-Munźir transmitted this from Sa’īd bin al-Musayyib, Tawūs, Shuraih, ‘Atha’, Sulaiman bin Yasar and Qatāda. Al-Baghawī transmitted it from the majority of the people of knowledge. Amongst those who are of the opinion that it is permissible is ‘Ikrama, Mujāhid, ash-Sha’bī, an-Nakha’ī, al-Hakam, ath-Thauri, al-Awzā’ī, Muhammad bin Hasan, Ahmad, Asbagh al-Māliki, Abū Thaur, Ishāq bin Rāhwayh, Ibnu al-Munźir and Daud. Al-‘Abdarī and others quoted this from them. And the proofs of all of these has been presented above. Allah knows best.

Requirement of Kaffāra

When we say: The mubashāra between the navel and the knees is considered harām, when one does it intentionally, willingly, and has knowledge of it’s harām, he sins but there is no kaffāra (expiation) upon him without khilāf. al-Marwadī and others explicitly affirmed this, and this is the zhāhir view. The obligation of kaffāra as per the Qadīm (with regard to intercourse with a menstruating woman) indeed is due to that weak hadīth while there is no hadīth here nor is that weak hadīth meant here. Also, intercourse is harām by ijmā’ and thus kaffāra is regarded as lawful but in this case, there is khilāf.

Allah knows best.

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