Q. When some scholars give rulings or fatwas, they do so according to the schools of thought they follow. They declare that all other views are invalid or wrong. But this creates confusion. I am concerned about the ruling on reading Surah Al-Fatihah, when there is no Hadith to suggest that it must be done in every rak’ah, and matters like lifting one’s hands for supplication after an obligatory prayer. May I also ask about people forming a line next to the imam, standing on both of his sides, when the place is too small to accommodate everyone. Should they not stand only to his right?
K.K.M
A. It is only to be expected that a scholar will give a ruling according to what he knows and studies. It is normal that he will be better versed in his own school of thought, or Fiqh. But the fact is that most scholars do not stick to their own schools of Fiqh. Nor do they declare that all other views are wrong. They normally say that the ruling they give is the best they can see, but they are not infallible. They could be wrong and others can be right.
A scholar should always try to look at every question separately, taking all factors into account, and arriving at the ruling that suits the people concerned best. It is important to arrive at a solution to a problem that does not trouble the people concerned or cause them hardship. This must always be done in accordance with what is permissible in Islam. We cannot bend any rules or go against what God has legislated. But if a certain problem has a better solution under a school of Fiqh other than the one followed by the person asking about it, a scholar should give him that solution. There is little virtue in sticking to a particular school when people’s interests are better served elsewhere. Moreover, a scholar should always consider the evidence supporting different views and opt for the one supported by the stronger evidence. This is something a layman cannot do, but it is the duty of the scholar to look into.
The guiding example on this question should be that of Imam Malik. When Caliph Haroon Al-Rasheed suggested to him that he, i.e. the caliph, should issue an order to all judges throughout the Muslim world to make Malik’s book of Hadith and Fiqh, known as Al-Muwatta’, their first reference, so that they will judge in accordance with it, Malik refused and counseled him against this step. Here is a scholar of the highest caliber, with a chance that his book would be made the source of rulings throughout the Muslim world, and he objects and counsels the caliph against it. Malik was looking at the interests of the Muslim community in general, not his own reputation or standing. He said to the caliph: “The Prophet’s companions settled in different areas, and each of them had a knowledge different from that of the other. People learned from them. Now if you want to force all people to follow one branch of knowledge, this will lead to chaos.”
As for reading Surah Al-Fatihah in prayer, the difference of views is well known. The three views are well documented and have valid evidence in support. So whatever people do will be, God willing, acceptable. There is no dispute that it should be read in every rak’ah, but the difference is whether the imam’s reading is enough for the entire congregation, or it should be read by everyone joining in.
If the place is too small to accommodate all worshippers, they stand as best as they can, even if it means that some of them will have to do their prostration on the back of the people in front of them. If it is necessary to form a row next to the imam, the imam should be in the middle, as with every row in the congregation. Every row starts behind the imam, who stands in the middle, and the worshippers stand to his two sides.
Husband’s Access to Child
Q. After prolonged marital difficulties I divorced my wife, but she is denying me access to our child. She gives all sorts of excuses, but none of these is really genuine. Could you please explain whether she is right? What rights of access do I have under Islamic law?
(Name and address withheld)
A. Islam is very clear on the question of custody of children in the case of divorce. In brief, custody is the right of the mother, but the father has to pay for all the children’s living expenses. Neither parent is denied access to the children under any circumstances, unless a judge rules otherwise. Such ruling must be based on clear and tangible evidence that such access by a particular parent is against the clear interests of the children. The mother keeps custody of boys until they are able to look after themselves with regard to eating, cleaning themselves, dressing, etc. This is normally at the age of 7 or 8. After this, the child is given choice with whom to stay, but his choice is not final. It can be changed anytime, and as many times as the child wants. A girl stays with her mother longer, with some schools of thought saying until she attains puberty, while others allowing the daughter to stay with her mother until she gets married. A mother forfeits her rights of custody if she marries someone else, in which case custody is transferred to her mother, i.e. the children’s maternal grandmother. If she is dead or unable to look after the children, custody goes to the father’s mother. Children’s custody is always given to a woman, because this is what children need at that very young age. An Islamic court may order the removal of the right of custody from a mother if her state of mind or her conduct is clearly detrimental to their interests. But this has to be proven with solid evidence.
As already mentioned, the father bears all the living expenses of the children. His responsibility for their upbringing is not diminished as a result of the divorce. This means that he has the right for continued access to them. In an Islamic society, no one could question such right, unless there are exceptional circumstances, such as the father being mentally unstable and prone to be violent with his children.
In your case, you need to have proper advice by a local Islamic scholar who may sit with you and your former wife, explaining what Islam requires. If your former wife is religious, the two of you can come to a mutually suitable agreement. Both of you have to remember the Qur’anic verse that prohibits causing harm to children by parents, or causing harm to either parent through the children. This is mentioned in Verse 233 of Surah 2, in connection with divorce. It says: “No mother should be harmed with regard to her child, nor a father with regard to his child.” An equally valid translation is: “No mother should ever harm her child, nor a father should harm his child.” If the two of you keep this in mind, you can easily come to a proper agreement.
The Title Haji
Q. People in some Muslim countries address a person who has performed the pilgrimage as Haji. An article published recently in our area suggests that this is un-Islamic. Please comment.
M. Hussain
A. This title has no value in Islam. A person who has performed the pilgrimage has simply fulfilled a duty God requires of all Muslims. Thus, he is in the same position as one who has prayed or fasted in Ramadan. We do not give any title to people who fulfill such duties. Why should we give such a title to the one who fulfills the duty of pilgrimage? Still the title is used in addressing elder people. This is part of local culture in some communities. If it is used in such a manner, there is no harm in using it, although it is preferable not to use it. The person who has done the pilgrimage wants his action to remain between himself and God. It should not earn him any privilege among people.
