The Distinguished Jurists Primer by Ibn Rushd

The ahkam about the form of major ritual pollution designated as janaba are covered in three issues.

The jurists disagreed about the entry of the junub into the mosque, expressing three opinions. One group of jurists prohibited this absolutely, which is the opinion of Malik and his disciples. Another group, including al-ShaficT, prohibited staying in the mosque and permitted one who is passing through it. ^he third’group, including Dawud and his disciples, permitted this for all.

The reason for disagreement between al-ShafVi and the Zahirites is based on the vacillation of words of the Exalted, “O ye who believe! Draw not near onto prayer when ye are drunken, till ye know that which ye utter, nor when ye are [ritually] polluted, save when journeying upon the road, till ye have bathed”,63 between two interpretations. Is the use of words metaphorical, so that an implied word “place” is to be assumed inserted, that is, to read “Draw not near unto the place of prayer (the mosque)”, and that the exemption for traveller relates to the prohibition of staying in the place of prayer, or, whether no word is to be assumed implied "and the verse is to be read as it is, where the traveller is in a state of janaba (sexual defilement), who lacks water (and can therefore perform tayammum and pray)? Those who held that a word is implied in the verse, permitted the junub to pass through the mosque, but those who did not take this to be the case did not have any evidence from the verse for prohibiting the junub from staying in . the mosque. I do not know of any evidence for those who prohibited the junub to pass through the mosque, except the literal meaning of what is related from the Prophet (God’s peace and blessings be upon him) that he said, “(Entry into) the mosque is not permitted to a junub nor to one menstruating.” It is a tradition that is not established according to the traditionists. The disagreement of the jurists related to one menstruating, for purposes of this topic, is the same as that for the junub.

A group of jurists decided to permit this, but the majority prohibited it,64 and they are those who prohibited touching it without ablution. The reason for their disagreement (over the case of the junub) is the same as that relating to the person who has not performed the minor ablution, that is, it is based on the words of the Exalted, “Which none toucheth save the purified”.65 We have already discussed the disagreement over the meaning of the verse. It is exactly the same disagreement as that relating to touching by the menstruating woman.

The jurists differed about this, with the majority prohibiting it, and a group of jurists permitting it. The reason for their differences is the possibility of different interpretations of the tradition attributed to <AIf in which he states: “Nothing prevented the Prophet (God’s peace and blessings be upon him) from the recitation of the Qur’an, except janaba”. One group of jurists said that the tradition does not give rise to a hukm, as it is only the impression of the narrator. Otherwise, how could one know that Qur’an was not to be recited because of janaba, unless he informed him of this? The majority maintain that CAIT (God be pleased with him) would not say such a thing out of his own impression or conviction, and he said it after attaining sound knowledge.

A group of jurists considered the menstruating woman in the same position as the junub, while another group made a distinction between them, permitting the menstruating woman some recitation through istihsan, because of the length of the period of her menstruation. It is Malik’s opinion.

These, then, are the ahkam of janaba.

The discussion of the principles related to the types of blood flowing from the uterus is covered in three subsections. The first is about the types of blood flowing from the uterus. The second' is about the identification of indications of change from purity to menstruation, the signs denoting the transfer from menstruation to the period of purity or into extended menstruation, and of extended menstruation (unhealthy bleeding) into the period of purity. The third relates to the identification of the ahkam of menses and extended menstruation, that is, acts prohibited and acts obligatory during it.

In each of these subsections, we shall mention issues that are like rules and principles for all that is covered in this chapter, in accordance with our aim of discussing issues agreed upon as well as those disputed.

The jurists agreed that the types of blood flowing from the uterus are three: menstrual blood, which flows (monthly) in a state of health; bleeding outside the regular monthly cycle of menstruation, which flows in a state of illness and is not menstrual blood according to the saying of the Prophet (God’s peace and blessings be upon him), “It is blood from the (ailment of the) veins and not menstruation”; and (thirdly) postnatal bleeding, which occurs after childbirth.

The identification of the indications distinguishing some of these types of blood from the others, and of the changing of the period of purity into menstruation and vice versa is based mostly on the knowledge of the usual dates of menstruation and those of purity. We will mention those that are like principles, and these are seven issues.

The jurists disagreed about the maximum and minimum number of days of menstruation and the minimum number of days of the period of purity. It is related’ from Malik that the maximum number of days for menstruation is fifteen, which is also al-ShaficFs opinion. Abu HanTfa said that the maximum number of days is ten. There is no minimum limit for the period of menstruation according to Malik, who said that it could be a single flow of blood, though he does not take this minor discharge into account in calculating the periods in divorce. Al-ShafiT said that the minimum period of menstruation is one day and a night. Abu HanTfa said that the minimum is three days.

Narrations from Malik differed about the minimum period of purity. It is related from him that it is ten days, it is related that it is eight days, and it is related that it is fifteen days, which was the inclination of his Baghdadi disciples. This is also the opinion of al-Shafi T and Abu Harnfa. Some jurists c said that this period is seventeen days, which is the maximum according to consensus, as far as I think. There is no limit set for the maximum period of purity in their view. These are the views of the jurists regarding this subject. Those who have a minimum limit for menstruation regarded discharge for less than this minimum to be of the category of istihada (unhealthy bleeding). Those who do not have a minimum fixed for menstruation, held that even a single flow must amount to menstruation. For those who have a maximum limit for menstruation, bleeding in excess of this limit is istihada.

The summary of Malik’s views regarding this topic of menstruation, however, is that women are of two types: a starter and the experienced. A woman who has just started menstruating is to give up prayers upon seeing the first drop of blood till a period of fifteen days (if bleeding continues for so long). If it does not cease, she is from then on a mustahada and is to start praying (after bathing). This was also al-ShafiTs opinion. However, where Malik said that she is to begin praying (only after fifteen days of bleeding) when she realizes that (further bleeding is not menstruation and) she is a mustadada, al-ShafiT required her (in addition to her fresh obligations) to pray qada* for fourteen days that she has missed, except (she is not to repeat prayers for) the minimum period (which) for him is one day and one night. Another opinion from Malik is that she is to count the number of days of someone her own age and then add three days. If bleeding has not ceased by then, she is deemed a mustahada.

Malik has two opinions about the woman who has been menstruating regularly but begins to suffer irregularity in bleeding. The first is that her menstruation is her usual period plus three days up to a total of fifteen days, which is the maximum period of menstruation. The second is to wait till the maximum period of menstruation, or she may try to distinguish (between the types of blood) if she is able to do that. Al-ShaficT said that she acts in accordance with her usual period of menstruation.

All these opinions given by fuqahd* about the minimum period of menstruation, its maximum, and the minimum period for purity have no revelatory basis. The basis is experience and what each believed to be the usual occurrence. Each one of them said what he thought the common experience of women to be. It is difficult, however, to fix by experience limits for such things, because of the differences among women. The differences that arose about such things are those that we have mentioned.

They agreed generally that if bleeding extends beyond the maximum period of menstruation it is to be considered as istihada, due to the words of the Messenger of Allah (God’s peace and blessings be upon him) related by Fatima Hbint Hubaysh, who was told by the Prophet, “When menstruation commences, gyou should stop praying, and when the normal number of days for ^menstruation is over wash the blood away from you and pray”.

The woman whose bleeding extends beyond the maximum period of menses Swill necessarily have gone beyond menstruation. Al-Shafi T and Malik, may c lAllah have mercy on him, held, in one of two narrations from him (Malik), labout the woman accustomed to menstruation that she is to act according to her usual course, because of the tradition of Umm Salama recorded in al- Muwa(ta : “A woman at the time of the Messenger of Allah (God’s peace, and > blessings be upon him) used to bleed copiously, so Umm Salama consulted the Messenger of Allah (God’s peace and blessings be upon him) concerning her. He said, ‘She should take into account the number of days and nights for which she used to menstruate in a month prior .to this affliction. She should give up praying for such a period each month. When this period is over she should take a bath, tie her private parts with a cloth, and pray’ ”. They linked the hukm of the woman who is doubtful about menstruation with the hukm of a woman suffering from unhealthy bleeding (istihada\ who is in doubt about her normal menstruation. He (Malik) also held the view about a woman who has started menstruating, upon reaching the age, that she should take into account the period of women her own age, for their periods are similar to hers. He, thus, deemed their hukm to be the same. As to the three additional days, to be sure, it is something unique to Malik and his disciples, may Allah have mercy °n them. All other fuqaha?, except for al-Awza T, opposed them in this, as it c is not mentioned in the established traditions, though they relate a weak tradition for it.

Malik and his disciples held that a woman whose bleeding is sporadic, bleeding for a day or two and becoming pure for the next day or two, is to add up the number of days for which she had a flow of blood, ignoring the days of purity. She is to bathe each day that she finds herself to be pure and pray, because even though she is not sure, it may be a period of purity. If the days of deeding have added up to fifteen, she is a mustahada from then on. This °Pmion was also upheld by al-Shafi i. It is also related from Malik that she is c to add up her days of bleeding and measure them against her usual menstrual P^nod. When these are equal she is to add another three days for the flow to Cease, otherwise she is a mustahada.

Considering the days in which there is no flow of blood as excluded from the c °tmt is incomprehensible, for they are either days of purity or of menstruation. If they are days of menstruation, it is necessary that they be added to the days of bleeding, but if they are the days of purity, then, there is no need to add up the (remaining) days of bleeding, since they are separated by the days of purity. What conforms with his (Malik’s) principles is that these are days of menses and not of purity, as the minimum period for purity is limited in his view, and it is more than a day or two. Think over this, and it will be evident, God willing.

The truth is that menstrual and postnatal blood flows and then ceases for a day or two, flowing again till the menstrual or postnatal period is over, just as it may flow for an hour or two in* a day and then stop.

They disagreed about the .maximum and minimum periods of postnatal bleeding. Malik held that there is no minimum limit for it, which was also upheld by al-Shafi i, Abu Hanlfa c and a group of jurists maintained that it is limited. He said that it is fifteen days, while Abu Yusuf, his disciple, said that it is eleven days. Al-Hasan al-Basri fixed it at twenty days. As to the maximum period, Malik once said that it is sixty days, retracting from it later and saying that women should be asked about it, but his disciples stood firm on the first opinion. This was also al-ShaficFs opinion. The majority of the jurists from among the Companions maintained that it is forty days, which was upheld by Abu Hanlfa. It is said, however, that the periods of women in the same condition should be taken into account, and if she goes beyond that she is a mustahada. Some jurists made a distinction between the birth of a male or female child, saying that for the male there are thirty days, for the female forty.

The reason for disagreement is the difficulty in relying upon experience, due to differences in women, and because there is no authoritative source that can be acted upon, as is the case in their disagreement about the days of menses and purity.

The jurists, both early and later, disagreed whether the blood seen by a pregnant woman is to be deemed as hayd or istihada. Malik, al-Shafi T, in his c more reliable opinion, and other jurists held that a pregnant woman can menstruate. Abu HanTfa, Ahmad, al-Thawri, and others said that the pregnant woman does not menstruate, and the blood discharged from her is that of illness, unless she is having labour pains, in which case they agreed that it is t0 be deemed as postnatal bleeding and her hukm is the hukm of a menstruating woman with respect to the prohibition of prayers and other related ahkdm- From Malik and his disciples there are conflicting narrations about a menstruating pregnant woman with extended bleeding as to the shifting of the hukm of normal menstruation to that of istihada. One opinion is that her hukm is that of a menstruating woman, that is, she either bleeds for the maximum number of days for menstruation and then becomes a mustahada, or she adds three days to her usual menstrual course, as long as the total does not exceed fifteen days. It is further said that she remains a normally menstruating woman for a period double that of the maximum for menstruation. It is also said that she doubles the maximum period of menstruation as a multiple of the month past in the gestation period; thus, in the second month she doubles the maximum number of days of menstruation twice, thrice in the third month, four times in the fourth, and so on as the months increase.

The reason for their disagreement on this issue stems from the difficulty of relying on experience and the obscurity of the subject. Sometimes the blood that a pregnant woman sees is the blood of menstruation, which is the case of an exceptionally strong woman and where the foetus is small, and it could be a double pregnancy as is related from Hippocrates and Galen, and the rest of the physicians. Sometimes the blood that she witnesses could be due to the weakness of the fetus, and its illness generally depends upon her frailty and illness, in which case it is the blood of a defect and illness, and usually it is the blood from a defect.

The jurists disagreed about the yellow and brownish discharge (leucorrhoea) whether it amounts to menstruation. A group of jurists held that it is menstruation during the days of menstruation, which was the opinion of al- Shafi<l and Abu HanTfa, and the same is related from Malik. In al- Mudawwana it is related from him that the yellow and brown discharges are to be considered as menstruation during the menstrual days as well as in others, irrespective of the flow of blood with it. Dawud and Abu Yusuf said that the yellow and brown discharges are not menstruation, unless accompanied by blood.

The reason for their disagreement is the conflict of the apparent meaning of Ae tradition of Umm Atiyya with that c of cA5isha. It is related from Umm ( Atiyya that she said, “We did not attach significance to the yellow and brown discharge after bathing”. It is related from cA5isha “that the women used to Se nd her a folded scroll containing cotton on which there was the yellow and brown discharge from menstrual blood, asking her about prayers”. She said, l ^o not hasten things till you see that the white mucus [which denotes the en d of menstruation and the beginning of purity] is white”. Those who Preferred ‘A’isha’s tradition deemed the yellow and brown discharges as menstruation, whether it was found in the days of menstruation or otherwise, with blood or without it, because the hukm of a single thing cannot differ within itself (from its constituents). Those who desired to reconcile the two traditions said that the tradition of Umm cAtiyya relates to the case after the cessation of bleeding, while ‘Aisha’s tradition relates to the time immediately following it, or that the tradition of ‘A^sha relates to the period of menstruation, and that of Umm cAtiyya relates to days free from menstruation.

A group of jurists followed the literal meaning of Umm ^tiya’s tradition and did not attach any significance to the yellow and brown discharges, either during days of menstruation or on other days, either immediately following the blood or after its cessation, because of the words of the Messenger of Allah (God’s peace and blessings be upon him), “The blood of menstruation is dark, and can be identified”, and because the yellow and brown discharges are not blood. They are like all other discharges released by the womb, which is the opinion of Abu Muhammad ibn Hazm.

The jurists disagreed about the indications of purity. One group of jurists said that the indication of purity is when seeing the mucus becoming dry, which was the opinion of Ibn Habib from among the disciples of Malik; this is so whether it is the practice of the woman to see the white mucus or reach purity by becoming dry. She becomes pure whichever one of these she sees. Another group of jurists made the distinction that if a woman is accustomed to seeing the white liquid, she does not become pure unless she actually sees it, but if she does not habitually get it, then her purity is attainedwhen she becomes dry. This is related in al-Mudawwana from Malik. The reason for their disagreement is that some of them took into account the regular habit, while others considered the cessation of blood alone. It is also said that the one who is accustomed to reaching purity by becoming dry may reach purity by seeing the white matter, but the woman accustomed to seeing the white matter does not become pure by merely becoming dry. The opposite is also maintained, and all this is from Malik’s disciples.

The jurists disagreed about a mustahada—if her bleeding continues indefinitely—as to when she will be considered as menstruating normally, just as they disagreed about a woman with normal menstruation when her bleeding is extended, as to when she becomes a mustahdda, the discussion of which has preceded. Malik said that the hukm of the continuously bleeding woman is the same as the woman in purity, till the description of the blood changes to .that of menstruation. This happens when the unhealthy bleeding continues beyond the minimum period of purity, and it is then that she is to be considered as menstruating normally, that is, when these two things come to pass together, the change in the blood and the passage of days in extended bleeding that can possibly be a period of purity, otherwise she is a mustahada.

Abu HanTfa said that she takes into account her normal days of menstruation, if she has experienced menstruation before, but if she has just begun menstruating, she passes the maximum period of menstruation, which is ten in his view. Al-ShafiT said that she should try to distinguish between the distinctive signs, but if she has had menstrual experience earlier, she should follow that experience. If both factors are relevant to her, then there are two opinions from him. First, that she should follow the distinguishing signs, and second that she should follow her regular course.

The reason for their disagreement is that there are two conflicting traditions related to this. First is the tradition of cA*isha about Fatima bint AbT Hubaysh “that the Prophet (God’s peace and blessings be upon him) ordered her, when she was having an extended bleeding, to give up praying for the number of days that she used to menstruate prior to this affliction, and then bathe and pray”. The tradition of Umm Salama, which has preceded, and has been recorded by Malik, has the same implication. The second tradition is recorded by Abu Dawud from the tradition of Fatima bint AbT Hubaysh that she had a sustained istihdda menstruation and the Messenger of Allah (God’s peace and blessings be upon him) said to her, “The blood of menstruation is dark, and can be identified. If it is like that then refrain from prayer, but if it is different then perform ablution and pray for it is blood from the veins”. This tradition is declared authentic by Abu Muhammad ibn Hazm.

Some jurists adopted-the method of preference, while others adopted the Method of reconciliation. Those who preferred Umm Salama’s tradition, as Well as others with the same implication, upheld the reckoning of days. Malik, ma Y Allah be pleased with him, took into account the number of days alone in the case of a menstruating woman, when she was in doubt about the prolonged dow, but he did not take them into account for the woman who was in doubt a bout normal menstruation, that is, neither their number nor their dates within l be month, as these were known. The text, however, pertains to a woman with an extended flow, who is in doubt about her normal menstruation. He (Malik) applied the hukm to a sub-issue, but did not apply it to the main problem. This ls strange, so think over it.

Those who preferred the tradition of Fatimah bint AbT Hubaysh took into account the colour (of blood). Some of them considered, along with the colour of blood, the passage of days that could be a period of purity during the extended bleeding. This is Malik’s opinion as related by <Abd al-Wahhab. There were others who did not consider this. Those who reconciled the two traditions said that the first pertains to the woman who can identify the number of days in a month and their timing, while the second pertains to one who neither knows their .number nor their timing, but recognizes the colour of blood. Some of these jurists held that even if she is not one of those who can distinguish (the blood) or the timing of the days, or one who knows their number, she is to abide by the tradition of Hamna bint Jahsh, which has been declared authentic by al-TirmidhT. It states that the Messenger of'Allah (God’s peace and blessings be upon him) said to her, “It is the gush of the devil. Observe menstruation for six or seven days, Allah knows what (number) it is, then take a bath”. The complete tradition will be coming up in the discussion of the hukm relating to the woman with extended bleeding in the period of purity.

These are the widely known issues in this chapter, and as a whole they come under four points. First, the identification of the change from purity to menses. Second, identification of the transfer from menses to purity. Third, identification of the transfer from normal to extended bleeding. Fourth, identification of the transfer from extended bleeding to normal menstruation, for which the traditions have been laid down. As to the other three cases, they are not expressly mentioned in the texts, that is, with respect to their determination. Same is the case with the transfer from postnatal bleeding to extended bleeding.

The basis for this section are the words of the Exalted, “They question thee (0 Muhammad) concerning menstruation. Say: It is an illness, so let women alone at such times and go not in unto them till they are cleansed. And when they have purified themselves, then go in unto them as Allah has enjoined upon you”,66 and also the traditions pertaining to this, which we will be quoting.

The Muslim jurists agreed that menstruation prohibits four things. First, the act of the daily prayer and its obligation, that is, it is not obligatory for the menstruating woman to perform the prayer as qadd* (compensatory’ performance), unlike fasting (which has to be made up). Second, it prohibits the act of fasting, but not its delayed performance (qad&). This is based on an established tradition from ^’isha, who said, “We were ordered to make up the days of fasting (which we missed on account of menstruation), but we were not ordered to perform compensatory prayers”. A group of the Kharijites maintained that compensatory performance of prayer is obligatory. The third, in my reckoning, is circumambulation (tawdj) due to cA>isha’s tradition when the Messenger of Allah ordered her to do all that the pilgrims do except circumambulation of the House (as she was menstruating then). The fourth is coition due to the words of the Exalted, “So let women alone at such times and go not in unto them till they are cleansed”.67

They differed about the ahkdm in a number of issues, and we shall mention those known most widely./These are five:

The jurists disagreed about cohabitation with the menstruating woman and about the acts that are permissible. Malik, al-ShaficI, and Abu HanTfa said that he can access the area above the waist (wrapper). Sufyan al-ThawrT and Dawud al-ZahirT said that it is obligatory upon him to avoid only the outlet of blood.

The reason for their disagreement is the conflict of the apparent meaning of the traditions laid down on this issue with the likely interpretations of the verse of menstruation (hayd). It is stated in authentic traditions from <A isha, > Maymuna, and Umm Salama that the Prophet (God’s peace and blessings be upon him), when one of them was menstruating, would order her to tie a waist-wrapper around her and then he would lie down with her. It is also related in the tradition of Thabit ibn Qays from the Prophet (God’s peace and blessings be upon him) that he said, “Do everything with the menstruating woman, except coition”. Abu Dawud has related from cAJisha that the Messenger of Allah (God’s peace and blessings be upon him) said to her, when s he was menstruating, “Uncover your thighs.” She said: “I did so, and he placed his cheek and his chest on my thighs. I leaned upon him till he was Wa nn, for the cold had given him pains”.

In the verse of menstruation, the words of the Exalted, “So let women alone at such times and go not in unto them till they are cleansed”, vacillate between ,nte rpretation according to their general implication, except for what is restricted by an evidence, and between implying a general meaning intended for the particular, on the basis of the words of the Exalted, “Say: It is an Alness”, as the illness is confined to the outlet of blood. Those who interpreted foe verse in its general meaning, that is, construing it in the general meaning fol it is restricted by an evidence, exempted contact for what is above the w aist-wrapper on the evidence from the sunna, for the restriction of the Book by the sunna is well-known to the experts of usul. Those for whom the meaning was general intended for the particular, preferred this verse over the traditions prohibiting what is below the waist-wrapper, seeking support frorr traditions conflicting with the traditions prohibiting what is below the waist­ wrapper.

There were some jurists who tried to reconcile these traditions with the meaning of the verse that is emphasized in the communication that it is an illness. They interpreted the traditions prohibiting what is below the waist­ wrapper to imply mere undesirability, and interpreted the permitting traditions and the verse for permissibility. They preferred this interpretation of theirs on the basis of the sunna indicating that no part of the body of the menstruating woman is polluted, except for the outlet of blood. This is the tradition where “the Messenger of Allah (God’s peace and blessings be upon him) asked c A*isha to fetch him a mat when she was menstruating. She said, ‘I am menstruating.’ He replied, ‘Your menstruation is not in your hand’”. Further, what is established about his resting his head on her thighs, when she was menstruating, and the saying of the Prophet (God’s peace and blessings be upon him) “A believer is never unclean”.

They disagreed about cohabiting with a woman (wife or slave girl) during the interval between the moment of cessation of blood and the time when she takes a bath. Malik, al-ShafiT, and the majority held that this is not permitted till she has a bath. Abu HanTfa and his disciples held that this is permitted if she has been pure beyond the maximum period of menstruation, which according to him is ten days. Al-AwzacT held that if she has washed her private parts with water, cohabiting with her is permitted, that is, each menstruating woman becomes free from hadath once she purifies herself (after the cessation of bleeding). This was also Abu Muhammad ibn Hazm’s opinion.

The reason for their disagreement is based upon the possible interpretations of the words of the Exalted, “And when they have purified themselves, then go in unto them as Allah has enjoined upon you”,68 whether the implication is purification by the termination of menstruation or purification with water. Further, if the purification is with water, does it imply purification of the entire body or purification of the private parts? “Purification” in the usage of the Arabs and in the technical legal meaning is an equivocal word used f°r these three meanings.

The majority preferred their view on the basis that the form of-the verb “tafa'ala” is applied to the act of the subject (mukallaf^ not to the act of others. Thus, the words of the Exalted, “fa'idhti tatahharna” are clear in their meaning about washing with water as compared to the meaning of purity resulting from the termination of menstruation. It is obligatory to follow the apparent meaning, unless an evidence indicates the contrary. Abu HanTfa preferred'lis view by maintaining that the word with the form yafulna in the words of the Exalted, “hattd yathuma” is stronger in the meaning of purity that results from termination of menstruation, as compared to purification with water. The issue, as you see, is a matter of probability. It is necessary for those who understood one of these three meanings from the word derived from the root meaning “purity” in the words of the Exalted, “till they are cleansed”, must infer the same meaning from the other derivation in the words of the Exalted, “And when they are purified, then go in unto them as Allah has enjoined upon you”. This is because it is not possible, or it is difficult (at the least), to accommodate within the same verse the two differing meanings, that is, cessation of blood from, the word “yathurna”, and “full washing with water” from the word tatahharna, as interpreted by the Malikites, when arguing for Malik. It is not customary with the Arabs to say, “Do not give so and so a dirham till he enters the house, and when he enters the mosque give him a dirham”, but they say, “Do not give so and so a dirham till he enters the house, and when he enters the house give him a dirham”, for the second sentence emphasizes the meaning contained in the first. Those who interpreted the words of the Exalted, ‘7:7/ they are cleansed”, in the sense of termination of menses, and the words of the Exalted, “And when they have purified themselves”, to mean purification with water are in the position of the person saying, “Do not give so and so a dirham till he enters the house, and when he enters the mosque give him a dirham”. This meaning is not understood in the usage of the Arabs, unless there is an implied word and the assumed reading l s, “And when they are cleansed [by cessation of blood] and have purified themselves [with full washing], then go in unto them as Allah has enjoined upon you”. This, however, is a far-fetched assumption, and no evidence is adduced by the person who claims it, unless he were to say that the obvious meaning of purification in the term “washing”, is an evidence, but this is °Pposed by the greater and clearer probability of no implied assumption in the v erse. This is because the implied assumption (of a word) is figurative, and mterpreting the text in its actual connotation is better than construing it figuratively.

Consequently, it is the duty of the mujtahid here, when he reaches a point in fiis investigation like the one in this case, to weigh the two apparent Probabilities, and the one he prefers in comparison with the other, he should accept. I mean by the two “apparent probabilities” that he is to compare the apparent meaning of the phrase “when they have purified themselves”, indicating washing with water, against the obvious absence of an implied word in the verse, when preferring to interpret the word “yathuma” in its clear sense of cessation of blood. Whichever of the two clear probabilities is preferable in his view, he should act according to it. Thus, he should either not read an implied word into the verse and interpret the words, “when they have purified themselves ’, to mean purification (by termination of menses) or he 5

should read the verse with an implied word and should interpret the words, “when they have purified themselves”, to mean purification with water. On the other hand, he may measure the apparent meaning of the words, “when they have purified themselves”, implying purification with water against the apparent meaning of the word “cleansed” implying purification (by termination of menses), then, whichever meaning appears appropriate to him should be assigned by interpretation to the other word too, and he should act upon it as if both words in the verse bear an identical meaning, that is, either in the sense of termination of the menses or of purification with water.

It is not in the nature of legal analysis to penetrate beyond this in such matters, so ponder over it, and here one is inclined to say: “Each mujtahid is right”.

As to the consideration of the maximum period of menstruation by Abu Hamfa in this issue, the argument is weak.

The jurist disagreed about the man who has intercourse with his wife when she is menstruating. Malik, al-ShaficT, and Abu HanTfa said that he should seek Allah’s forgiveness and is not liable for anything. Ahmad ibn Hanbal said that he should (in addition) give one or one-half dinar as charity (atonement). A group of the traditionists said that if he has intercourse while she was bleeding, he would owe one dinar,, but if he cohabits with her after the bleeding has ceased he would owe one-half dinar.

The reason for their disagreement over this is based on their dispute about the authenticity of the relevant traditions, or their weakness. It is related from Ibn Abbas c from the Prophet (God’s peace and blessings be upon him) about the person who cohabits with his wife when she is menstruating that he should give one dinar as charity. It is also related from him that he should give one- half dinar. Another version of this tradition of Ibn cAbbas states that if he cohabits while she is bleeding he would be liable for one dinar, but if he cohabits after the flow has ceased he is liable for one-half dmdr. In the same tradition it is related that he should give two-fifths of a dinar as charity, which was al-AwzaTs opinion.

Those for whom these traditions were authentic acted according to them, while those for whom not a single one of these was authentic, and they are the majority, acted1 upon the principle of dropping the hukrn till it is established through an evidence.

The jurists disagreed about the woman with extended bleeding. A group of jurists made a single (full) purification (bathing) obligatory for her, which was to take place when she saw that her menstruation period was over in accordance with one of its indications, the discussion of which has preceded according to the opinions of these jurists. These jurists, who made a single purification obligatory for her, are divided into two groups. One group made it obligatory for her to perform (the minor) ablution for each prayer, while the other group recommended'this, but did not make it obligatory. Those who made a single purification obligatory for her include Malik, al-ShafiT, Abu HanTfa, their disciples, and the majority of the jurists of the regions with most of them making it obligatory for her to perform ablution for each prayer. Some of them did not make it obligatory, .but recommended it, which is Malik’s opinion:

Another group, besides these groups, held that a woman with extended bleeding must purify (bathe) herself for each prayer, while a second group held that the obligation is to delay the noon prayer till the time of the middle prayer, and she should then purify herself and combine the prayers. Similarly she should delay the sunset prayer till the end of its time and the beginning of the time of when she should purify herself a second time and combine the two prayers, and finally, she should purify herself a third time for the morning prayer. Thus, they made three purifications obligatory for her in one d *y and a night. One group of jurists held that she is obliged to purify herself °nly once for each period of one day and one night. Some of them did not fix a time for this, which is related; from SAIL Some maintained that she should Purify herself from one period to the next.

Four opinions are thus arrived at in this issue. First that there is only one Purification for her after the menstrual blood ceases to flow. Second, that she is to purify herself for each prayer. Third, that she is under an obligation to Punfy herself thrice in one day and night. Fourth, that she should purify er self once during one day and night.

The reason for their disagreement on this issue derives from the conflict of apparent meaning of the traditions laid down in this regard. These are four Mely known traditions, with one being agreed upon for its authenticity and ree disputed. The tradition agreed upon for its authenticity is ‘A’isha’s, said, “Fatima daughter of Abu Hubaysh came to the Messenger of Allah °d’s peace and blessings be upon him) and said, ‘O Messenger of Allah! I aiXl a woman who menstruates and is never pure. Should I abandon prayer?’ The Prophet (God’s peace and blessings'be upon him) said to her, ‘No, for this is the blood of the veins and is not menstruation. When menstruation begins give up praying, but when it turns around, wash the blood from yourself and pray’”. In some of the versions of this tradition the words, “And perform ablution for each prayer”, are added. This addition is not recorded either by al-Bukhart or-by Muslim, but it is recorded by Abu Dawud and is authenticated by a group of traditionists.

The second tradition from ‘A’isha about Umm Habiba daughter of Jahsh, the wife of cAbd al-Rahman ibn cAwf, “that she menstruated continuously so the Messenger of Allah (God’s peace and blessings be upon him) ordered her to wash for each prayer”. This tradition is recorded as such by Ishaq from al- Zuhri, but the rest of the disciples of al-Zuhri related “that she menstruated continuously and asked the Messenger of Allah (God’s peace and blessings be upon him) about it, so he said to her, ‘It is the blood of the veins and not menstruation’ He then ordered her to wash and pray, arid she used to wash for each prayer, for that was what she understood from him not that this is transmitted in the words of the Prophet (God’s peace and blessings be upon him). This is the narration recorded by al-Bukhari.

The third is the tradition of Asma5 bint TJmays, “She said, ‘O Messenger of Allah! Fatima bint Hubaysh has a prolonged menstruation’. The Messenger of Allah (God’s peace and blessings be upon him) said, ‘Let her wash once for zuhr and W, once for maghrib and <isha\ and then let her wash for fajr, performing ablution for what is between these’”. This is recorded by Abu Dawud.

The fourth tradition is that of Hamna bint Jahsh, which records: “The Messenger of Allah (God’s peace and blessings be upon him) gave her a choice between washing once for all the prayers, when she found that the blood of menstruation had ceased to flow, and between washing thrice in one day and night”. This conforms with the tradition of Asmac bint TJmays, except that in the latter case it apparently is an obligation, while in the former case it is an option.

As the apparent meanings of these traditions were in conflict, the jurists interpreted them differently formulating four opinions: an opinion based on abrogation, an opinion based on preference, an opinion based on reconciliation and an opinion based on structure bind\ The difference between reconcilia' tion and structure is that the person structuring them does not find a conflict in the traditions and combines them, but the person who reconciles them finds a conflict in the apparent meanings of the traditions; so think about this, the distinction is obvious.

Those who adopted the method of preference include those who preferred the tradition of Fatima bint Hubaysh, because of the existence of an agreement about its authenticity, and they acted on its obvious meaning, that is, to the effect that the Prophet (God’s peace and blessings be upon him) did not order her to wash for each prayer, nor did he order her to combine the prayers after one purification or to do anything else required in the other opinions. This was adopted by Malik, Abu HanTfa, al-Shafi T, c and their disciples, and these jurists form the majority. Those who considered the addition stated in this tradition, that is, the order to perform ablution for each prayer, made this obligatory for her, but those who did not consider it as authentic did not deem it obligatory.

Those who adopted structured interpretation maintained that there is essentially no conflict between the traditions of Fatimah and Umm Hablba, one of whose narrators is Ibn Ishaq. What is contained in the tradition of Umm Hablba is an addition over the content of Fatima’s tradition. What is contained in the tradition of Fatima is a reply to a question whether that was the type of menstrual blood that prohibits prayer. The Prophet (God’s peace and blessings be upon him) informed her that it is not menstrual blood that prevents the performance of prayers, but he did not inform her at all whether she was to purify herself for each prayer or at the time of the cessation of the menstrual flow. In Umm Hablba’s tradition, he ordered her to do only one thing, which was purification for each prayer. The majority may nevertheless say that the delay of an explanation from the time of its need is questionable. If purification was necessary prior to each prayer, he would have informed her about it, and the contender cannot claim that there was no need as she was already aware of that. How could we assume that she was so knowledgeable when she was unaware even of the difference between extended bleeding and normal menstruation? The Prophet did not mention in his words “It is not menstruation” the obligation of purification after the cessation of menstrual Wood, for it was known from his (God’s peace and blessings be upon him) ^unna that the termination of menstruation makes bathing obligatory. Therefore, he did not inform her about it as she was already aware of it. The ^se of purification before each prayer, however, is different unless the contender were to say that this addition, had not been established before. This leads to the well-known issue, whether an addition amounts to abrogation. It is related in some versions of Fatima’s tradition that the Prophet (God’s peace an d blessings be upon him) ordered her to take a bath. This, then, is the Position of those who adopt interpretations based on preference and structure.

Jurists adopting the method of abrogation said that the tradition of Asma5 bint TJmays abrogated Umm Habiba’s tradition. They argued for this on the basis of what is related by cA5isha “that Sahla bint Suhayl had extended Weeding and the Messenger of Allah (God’s peace and blessings be upon him) Or dered her to bathe before each prayer. As this was strenuous for her, he ordered her to combine zuhr and casr with a single bath, maghrib and zisha> with another, and that she should bathe a third time for the morning prayer”.

Jurists adopting the method of reconciliation- maintained that Fatima bint Hubaysh’s tradition is to be interpreted as being addressed to a woman who can distinguish the days of normal menstruation from others, while Umm Habiba’s tradition is interpreted as being addressed to a woman who cannot make such a distinction, and wastherefore ordered to bathe frequently for each time of prayer as a precaution. Because it is likely that each time she was about to pray she had reached the period of purification; and it was thus obligatory upon her to wash for each prayer. Asma5 bint HJmays’s tradition, on the other hand, is to be interpreted as having been addressed to a woman who cannot distinguish between the days of normal menstruation and extended bleeding (due to the irregularity of the flow), as the flow ceases at times. When the flow ceases, this woman is under an obligation to bathe and to pray two prayers after the bath (zuhr and zasr together with one bath, maghrib and 9’sAd with another bath, and subh with a third).

5

69

Another group of jurists adopted the opinion based on an option between the traditions of Umm Habiba and Asma5, arguing for this on the basis of Hamna bint Jahsh’s tradition, which contains the words “that the Messenger of Allah (God’s peace and blessings be upon him) granted her an option”. Among these jurists are some who said that the woman with an option is one who cannot distinguish the days of her menstrual flow, and there are others who said that she is the mustahdda irrespective of her being able to distinguish her menstrual cycle. This is the fifth opinion within the issue, but the option contained in' Hamna bint Jahsh’s tradition is between saying all the five daily prayers with one washing and purifying thrice in one day and a night. Jurists maintaining that she should bathe once each day made this obligatory for her, perhaps on the basis of doubt, and I am not aware of a tradition for this.

The jurists disagreed about cohabitation with a woman with extended bleeding, into three opinions. One group said that it is permitted to cohabit with her, and this is the opinion of the jurists of the provinces, and has been related from Ibn ‘Abbas, SaTd ibn al-Musayyab, and a group of the Tabi un. Another c group said that it is not permitted to cohabit with her, which is related from cA5isha, and is the opinion of al-NakhT and al-Hakam- A third group said that her husband is not to cohabit with her, unless it becomes prolonged, which is Ahmad ibn Hanbal’s opinion. The reason for disagreement stems from the dispute about whether permissibility of prayer in her case is an exemption resulting from the prescription of the obligation of prayer, or whether prayer has been permitted to her because her hukm is the same as that of a woman in a state of ritual purity? Those who maintained that this is an exemption did not permit the husband to cohabit with her, while those who maintained that her hukm is the same as that of a ritually pure person permitted it for her. On the whole, it is an issue that is not expressly stated in the texts. The distinction between a prolonged and-a short period, on the other hand, is based upon istihsan.