15th Century Fatwa Regarding Dwelling Amongst Non-Muslims and Emigration if One’s Spouse Opposes It

When Christian forces conquered  the entire  eastern  regions  (sharq  al-Andalus)  of the  Iberian  peninsula in the thirteenth century, a large population  of Muslims became subject to Christian  rule. Now  known as Mudejars, these Muslims continued to practice  their  religion and regulate  their  communities  according  to Islamic law, but their  residence in dar al-Harb (abode of war) became the subject of legal discourse among Maliki jurists.

Muhammad Al-Haffir (d. 811/1408),a mufti of Granada during the 14th and 15th centuries.

Translation Of A Fatwa Of Muhammad B. ‘Ali Al-Ansari Al-Haffar

Fatwd of Muhammad b. ‘All al-Ansari al-Haffir, may God the exalted help him.

Praise be to God. My lord-may God be pleased with you-your answer [is requested] concerning the Mudajjal residing in the land of the Christians and living in their land among them. Is emigration to the land of Islam obligatory for them? And concerning the two spouses: If one of them desires to emigrate and the other refuses to do so, is it permissible for the one who desires to emigrate to do so without the other? And if the wife is entitled to something from her husband, namely her dower (sadaq), and she did not agree with him in the matter of emigration, can he emigrate and leave her and not give her this, or is this not permitted until he gives her what she is entitled to in respect to him? Can she exact from him [what is] her right if she wants to emigrate and he refuses to do so? Should he be compelled, by virtue of the court’s decision, to do this or not?

[Answer:]

Praise be to God. The Prophet-may peace be upon him-said : “I am free of every Muslim living [where] exposed to the polytheists.” [Thus] it is not permitted for a Muslim who has the capacity to emigrate from exposure to the infidels to remain among them, because they are subject to the laws of unbelief and because they constantly witness lack of belief in God (kufr) and [yet] they do not have the capacity to change it. It is incumbent upon them to emigrate from [this] place, therefore, since it is not permitted for a Muslim to keep company with one who engages in the sinful activities of drinking wine, committing adultery, or other sinful acts. How much the more so is it not permitted to live with one who does not believe in God and tells lies about His Prophet? Thus, emigration should be regarded as a duty by virtue of ijma’ (consensus of the community).

If one of the spouses wants to emigrate from the land of the infidel and approach (dar al-Islam), and the other refuses, then he has no excuse on this account but should [nevertheless] emigrate and leave his/her spouse. For religious interests must prevail over this-worldly interests.

If one of the spouses wants to leave and one of them owes the other, then he may not depart until he has fulfilled his obligation. Thus, the husband should give his wife the sadaq he had agreed to, or any other obligation to which she is entitled, and [only] then may he emigrate. Likewise, the wife, if she emigrates and he remains behind, it is incumbent upon him to give her what he owes her.

***
Source: Miller, Kathryn A.,  Muslim Minorities and the Obligation to Emigrate to Islamic Territory: Two fatwās from Fifteenth-Century Granada

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~ by hammad on December 15, 2009.

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