General Rules of Jurisprudence Lesson 36

1. General Rules of JurisprudenceLesson 36 قاعدة الفراش Part two (Rated 14) The rule of BED or AL FERAASH Between two beds QIYAFAH or relating with similarities. Related opinions of ABO HANIFA

2. Between the two beds • If a divorced woman gets married to another husband after the waiting period, and then she got a child, so will it be for the first or the second? • There are four cases: • If it was possible to relate it to the first one and not to the second one, such as it was less than six month from the mating of the second one, and did not exceed one year from the mating of the first. In this case it is related to the first, and based on this the second got married to the woman while she was in the waiting period of the first because the waiting period for a pregnant woman is the brith of the child, and the second marriage is not just void but she becomes permanently forbidden to the second husband, because such mating is considered a mating to a married woman even if there was ignorance she becomes permanently forbidden to the one who mates in the waiting period.

3. 2nd Case of two beds: • It can be related to the second and not to the first, that means that the child was born after the longest period for pregnancy from the mate of the first one, and it was above 6 months from the second ones mating. So it will be related to the second one. • 3rd case: It can not be related to any one, that means it was one year after the mate of the first, and below 6 months from the mate of the second. In this case it does not relate to any one of them, but it does not mean that it is from adultery.

4. 4th Case: The child can be related to both of them, it was less than one year from the mate of the first, and more than 6 months from the mate of the second, in this situation there are three opinions: • It is a conflicting situation therefore this rule cannot be used, the QURAA (drawing lots) may be a possible solution. • The owner of the bed must be active means at the time of mate and not at the time of the birth, so it is related to the first. • The second husband active owner of the bed is legally by marriage and not the first one, the first one has divorced and is no more an active husband, so the rule of FERAASH will be implemented in the case of the second one, who is an active owner of the bed rights.

5. Support of the narration: • The 3rd opinion in the 4rth case of sharing of the bed is also supported by the MOWATHAQA of ABO AL ABBAS, who said: “ If a woman brings a child after six months (of pregnancy) then it is for the latter (husband), and if she got it for less than six months then it is for the previous one (Husband)

6. QIYAFAH or relating with similarities • QIYAFAH is tracing or tracking the relation based on the similarities between the child and his relatives, and after observing the similarities the decree or the decision is given that this is his brother or his son. • The majority of the scholars consider it forbidden if it leads to decree of proving the relation. • It is forbidden because the religious authority considered the rule of bed or FERAASH as a mean to prove relation and not QIYAFAH. • But there are few narrations indicate the permissibility of QIYAFAH in defining the relations.

7. Narrations claimed to support the use of QIYAFAH in proving the relations: • The story of Imam Redha (AS) when he received the IMAMAT or authority (from his father or his Imamat was activated), and the issue of his son Imam Al Jawad (AS), It has been narrated by ALKOLAYNI, through Ali son of Ibraheem, through his father, and Ali son of Mohammad ALQASDANI all narrate from Zakariya son of Yahya son of ALNOMAAN ASSAYRAFI, who said: I heard Ali son of JAFER who was talking to ALHASSAN son of ALHUSSAIN son of Ali son of ALHUSSAIN, so he said:” By Allah, Allah gave victory to ABO ALHASSAN ALREDHA (AS), so ALHASSAN told him, yes By Allah, may my life be sacrifice to you, his brother oppressed on him, so Ali son of Jafer said, yes by Allah, and we are his uncles oppressed on him, So ALHASSAN told him: May my life be sacrificed to you, what did you do for verily I was not with you all? He said: his brothers and We (his uncles) also told him: We never ever had an Imam with dark color.

8. Cont. • So Imam ALREDHA (AS) told him that verily he is my son. They said: Verily the messenger of Allah (AS) gave decree based on the QIYAFAH, so between us and you is the QIYAFAH, he (AS) said: If you all want to bring him, send some one to bring him, and as for me, I am not, and do not inform him about what you have invited him for, and stay in your houses. So when they brought him, they told us to sit in the garden, and all the uncles, brothers, sisters stood in a row, and they took away Imam ALREDHA (AS), and made him wear a wool robe, and a hat made out of wool, and they kept on his shoulder a shovel (like a gardener), and told him to enter the garden and make your self look like you are working in it. And after that they brought Imam ABO JAFER (AS), and they said: Relate this boy with his father (from among these people in the row), and they (QIYAFAS) said: there is no father here , but this is his father’s uncle, and this is his father’s uncle, and this is his Ant, and if this (boy) has a father here that it must be the gardener, because they both have similar legs, so when ABO ALHASAN (AS) came back, they said: This is his father…..”

9. Comments on the case of Imam ARRedha (AS) • Because of this narration the author of HADAAEQ considered the QIYAFAH is permitted. • If it was HARAAM how can Imam (AS) respond to their request. • They narrated from the messenger of Allah (S) and he did not deny the hadeeth. • Week narration due to the existence of ZAKARIYA ALSAYRAFI who is unknown. • How can the uncles of the Imams (AS) allow the Ants of the Imam (AS) and his sister in front of foreign men to compare their body parts legs and hands. • Some of the uncles were had very great respect for the Imam (as), and his name is among those uncle who doubted in the relation of Imam Redha (AS) with Imam Jawad (AS). The story is mentioned in the book which indicates such great respect from one of his uncles..

10. Second Narration: • There is a huge problem in the SANAD, but if the SANAD is OK, then the possibility is that the Prophet (S) wanted to prove that USAMA was the son of ZAID the servant of the Prophet (S), because ZAID was light colored, and USAMA was extremely darker color, and his mother UM AYMUN wife of ZAID was dark also from Abyssinia, so people doubted in the relation of USAMA with his father. So may be this was the only accepted method in that time, before Islam made it forbidden on the people. • The HADEETH is narrated by AESHA, “that the Prophet (S) came out happily telling her, that didn't you see the MOJAZIZ (QAYAAF) frequently looked at both ZAID son of HARITHA and USAMA son of ZAID, and then he said: that some of this legs (of USAMA) are from some (ZAID), that means some of them they are similar” • There are serious problems in this narration.

11. Related opinions of ABO HANIFA • This rule (FERASH) is for the case of doubt and not for the case of certainty, so if we know for sure that it cannot be related to the husband , then we cannot use this rule to prove the relation of the child to his father. Bit ABO HANIFA disagreed on this, some of his opinions are as follows: • The child can be related to the father with the marriage contract only even if the mating did not happen. • If a widow got married to another husband and got children from the second one, and suddenly the first one came back, then the second marriage is invalid and the children will be related to the first husband because he is the owner of the bed.

12. More strange opinions: • If a man in the east got married to a woman in the west, and they never met, and the woman got a child after six moths of the contract, then the child will be related to the husband. • If a person marriages a woman and immediately divorces her without any gap, and they never mated, after that if she got a child, after six months from the marriage, it will be related to the father. • If two men got married to two sisters, and by mistake they were switched to each others husband, and they both mated to both of them, and they got the progeny, then the progeny will be for the real husbands and not the one who mated them, because the contract is the cause of relating the progeny. • There are other strange verdicts of ABO HANIFA regarding the Homosexuality, which are not related to this rule. • END OF PART TWO OF ERAWANI’s QAWAED.