asy-Syirāźī, may Allah have mercy upon him, said in the Muhaźźab,
If the miscarried fetus made istihlāl (crying at the time of miscarriage) or had taharruk (motion) and then died, he is bathed and prayed upon due to what is narrated by Ibnu ‘Abbās, may Allah have mercy upon them both, that the Prophet, Salutations of Allāh and His Peace upon him, said
إذَا اسْتَهَلَّ السِّقْطُ غُسِّلَ وَصُلِّيَ عَلَيْهِ وَوَرِثَ وَوُرِثَ
When the miscarried fetus made istihlāl, he is bathed and prayed upon. He inherits and is inherited.
It is also because the rulings of dunyā with regard to Islam, al-mīrāth (inheritance) and ad-diyah (blood money) is established for him just like the others.
If he neither made istihlāl nor had taharruk, while he is not yet 4 months, he is enshrouded with a khirqah (piece of cloth) and is buried. If he completes four (4) months, then there are two qauls (opinions of asy-Syāfi’ī) with regard to it: He said in the Qadīm, he is prayed upon. This is because the rūh is blown into him, so he becomes just as the one who made istihlāl. He said in the Umm: He is not prayed upon and this is the more śahīh. This is because the rulings of dunyā with regard to inheritance and others is not thābit for him. Therefore, he is not prayed upon.
If we say: he is prayed upon, he would also be bathed just like other than the miscarried fetus. If we say: he is not prayed upon: then with regard to his bathing are two qauls: asy-Syāfi’ī said in the Buwaitī: he is not bathed because since he is not prayed upon he is not bathed just like the syahīd (matyr). He said in the Umm: He is bathed because bathing is in fact isolated from prayer just as what we said about the kāfir.
an-Nawāwī, may Allah have mercy upon him in the commentary of the above said:
The Hadīth of Ibnu ‘Abbās is from a narration of Ibnu ‘Abbās is gharīb (strange). It is in fact ma’rūf (known) from a narration of Jābir. at-Tirmiźī, an-Nasā’ī, Ibnu Majah, al-Hākim and al-Baihaqī narrated it from a narration of Jābir while it’s chain is weak. In some of the narrations, it is mauqūf at Jābir. at-Tirmiźī, may Allah have mercy upon him said:
It seems as if the mauqūf is more śahīh.
The mauqūf is awlā (more deserving) in terms of śawāb (accuracy).
at-Tirmiźī narrated it in the Book of Janāiz while Nasā’ī narrated it in the Farā’idh. Ibnu Mājah narrated it in both books. In a narration of al-Baihaqī:
He is prayed upon, inherits and is inherited.
In the narration of al-Muhaźźab: “He inherits (waratha).” And his saying: “He made istihlāl” means to cry, the origin of al-ihlāl is to raise one’s voice.
As for the ruling of this issue, then for the miscarried fetus are situations:
1. He made istihlāl and thus his bath, and prayers upon him is wājib. There is no khilāf amongst us due to what is mentioned by the author. His kafan, just like the kafan of the bāligh is three thawbs (fabrics).
2. He had taharruk with a harakah (movement) that indicates life but he did not made istihlāl or he had ikhtilāj (quivering/twitching) then there are two tarīqahs: The maźhab which is affirmed by the author and the ‘Iraqīs is that he is bathed and prayed upon. This was transmitted as one qaul. The second which is transmitted by the khurasānīs as two qauls and some of them said two wajhs: the more śahīh is as mentioned, the second as transmitted by the khurasānīs is that he is not prayed upon. Based on this, is he bathed? With regard to this are two tarīqahs. To them, the maźhab is that he is bathed. The second is that there are two qauls : the first is he is bathed, and the second is he is not bathed.
3. He is neither found to have harakah nor ikhtilāj, and did not have any other indication of life. He falls into two possible states (1) He did not reach four months. In this case, he is not prayed upon without khilāf. With regard to bathing him are two tarīqahs. The maźhab as affirmed by the author and the jumhūr is that he is not bathed. The second as transmitted by some of the khurasānīs such as Qadhī Husain, ar-Rāfi’ī and others is that there are two qauls with regard to this: al-Mahāmilī mentioned this in the Tajrīd but he said: It is a condition that the adamic khilqah (appearance) is manifest in him. (2) he reached four months. With regard to this is three qauls. The author and the aśhāb mentioned it. The śahīh as stipulated by asy-Syāfi’ī in the Umm and the majority of his books is that bathing is wājib but prayer upon him is not wājib. It is not permissible to do so either. This is because the issue of bathing is more vast. Due to this, the źimmī is bathed but is not prayed upon. The second which asy-Syāfi’ī stipulated in the Buwaitī which is from the jadīd books is that he is neither bathed not prayed upon. The third which is transmitted by the author and the jumhūr from asy-Syāfi’ī’s stipulation in the Qadīm is that he is bathed and prayed upon. Sheikh Abū Hāmid said:
The manśūs of asy-Syāfi’ī, may Allāh have mercy upon him in all his books is that the is not prayed upon…..Our aśhāb transmitted from his Qadīm that he is prayed upon.
The author of al-Hāwī said:
The śahīh is that which is stipulated by asy-Syāfi’ī in the Qadīm and Jadīd that he is not prayed upon. He said, the second view is as transmitted by Ibnu Abī Hurairah as a takhrīj (interpretation) from asy-Syāfi’ī, may Allah have mercy upon him, in the Qadīm that he is prayed upon.
al-Bandinijī, may Allah have mercy upon him said:
Our aśhāb transmitted from the Qadīm that he is prayed upon. I in fact read the Qadīm in its entirety and did not find it. As a matter of fact, they agreed upon the denial of its existence in the Qadīm.
Imām al-Haramayn and al-Ghazalī in the Basīt said:
If we considered prayer wājib in these situations then complete kafan is wājib as mentioned earlier i.e. He is enshrouded with the kafan of the bāligh in three thawbs. Even if we do not consider prayer wājib, his burial is wājib by ittifāq (agreement) and the khirqah which he is buried in is a lifāfah (covering)…..Burial is unanimously considered wājib….Thus, the completeness of kafan follows the obligation of prayer….
When a lady dropped a mudghah, the rulings of istīlād (birth), the obligation of ghurrah (compensation for destroying a child in the womb), bathing, carrying out kafan and prayer are not thābit. It is not wājib to bury but it is awlā to conceal it.
This is similar to the saying of al-Baghāwī:
When she dropped an ‘alaqah or a mudghah where none of the adamic form is manifest in it, bathing and performing kafan is not carried out for it. It is concealed as how the blood of a man is concealed when he does iftiśad (drawing blood) or ihtijām (cupping).
As for ar-Rāfi’ī, may Allāh have mercy upon him, he said:
The adamic form is not manifest in it. Muwārah (concealment) suffice for it in whatever way. Then, after the manifestation of the adamic form, the ruling of bathing effectuate the ruling of kafan.
He thus made it (necessity of complete kafan) to be contingent to bathing while the Imām and al-Ghazālī made it contingent to the prayer. What is mentioned by ar-Rāfi’ī may Allah have mercy upon him, is ansab (more elegant).
As for al-Mahāmilī, he mentioned this issue of miscarried fetus in the Tajrīd that contradicts the aśhāb as well as what he himself mentioned in the Majmū’. He said:
If he is miscarried after the rūh is blown and he did not made istihlāl even though he is more than four months, then there are two qauls. asy-Syāfi’ī said in the Qadīm and Jadīd that he is not prayed upon and in the Buwaitī: He is prayed upon.
…..The is no khilāf based on these two qauls that he is to be bathed, enshrouded, and buried. If he is miscarried before four months, there is no khilāf that he is not prayed upon. He stipulated it in all of his books. Then if the adamic form is not found in it, such as the zhufr (finger nails) and others, then there is no hukm for it, there is neither bathing nor enshrouding. If there is indeed takhalluq (presence of the adamic form), he is enshrouded and buried. With regard to his bathing there are two qauls.
In the elucidation from Sheikh Abū Hāmid is similar as above. I saw it in the Ta’līq of Abū Hāmid but the copies of the Ta’līq are inconsistent.
Allah knows best.
The maźhab of the scholars with regard to the prayer upon the miscarried fetus.
We had in fact mentioned the tafśīl (elaboration) of our maźhab with regard to it.
He is not prayed upon unless he had ikhtilāj and taharruk and those continued for an extended moment.
Ibnu al-Munźir transmitted from Jābir bin Zayd the Tābi’īn, al-Hakam, Hammād, Mālik, al-Awzā’ī and the aśhab of the people of ra’yu that if he did not made istihlāl, he is not prayed upon. And from Ibnu ‘Umar, may Allāh have mercy upon them both, that he is prayed upon even if he does not make istihlāl. This is the opinion of Ibnu Sirīn, Ibnu al-Musayyib, Ahmad and Ishāq. al-‘Abdarī said:
If he is less than four months, he is not prayed upon without khilāf, i.e. by ijmā’. If he had four months, and did not have taharruk he is not prayed upon according to the jumhūr of the ‘ulamā’.
Ahmad and Daūd, may Allah have mercy upon them said:
He is prayed upon.