General Rules of Jurisprudence Lesson 35

1. General Rules of JurisprudenceLesson 35 قاعدة الفراش Part one (Rated 14) The rule of BED or AL FERAASH The rule The source The discussion The word of the HADEETH Causes of legal bed rights

2. The rule of BED or AL-FERAASH • This rule is indicated in the chapter of marriage or the chapter of LE’AAN which is an oath of condemnation; sworn allegation of adultery committed by one’s spouse. • In the marriage: if a wife commits an adultery or a confused intercourse, and the husband also slept with her, so if we do not know who's child was conceived, then based on the rule the child will be legitimate and husband’s. • In the LEA’AN: If a person doubts in the betrayal of his wife and he thinks that the son she has begotten is not his, then based on this rule the son will be considered his, and if was sure that he is not his and he wants to deny it then he will have to go through the process of LE’AAN.

3. The process of LE’AAN: • The husband says four times: That God witnesses that he is saying the truth, and the fifth he says that if I am a liar then God’s curse will befall upon me. The wife gives similar responses with some difference in her responses, and after that she becomes forbidden on him permanently, and the bed rights are removed, and the child is not related to him any more, no insentience is between them. • After the LEAAN she will not be punished the religious punishment of fornication, and he will not be punished for accusing her of adultery without any witnesses.

4. Condition of the rule of FERAASH: • The important condition in the implementation of this rule is that the husband shared the bed with his wife, and there is a possibility that the son could be his. But if he was certain for some reason that it is not his, for not sharing the bed, or for a sickness or for travel or being away for long time, then the rule of FERAASH or Bed cannot be implemented and he has to deny it with the LEAAN to avid being flogged with 80 beats of accusing her of adultery without four witnesses. (FERAASH is only implemented on doubt) • If the child was less than the least period (6 months) of pregnancy or more than the longest (one year) period of it, then for sure the child is not his, and he does not need for LEEAN to deny it, but he can not accuse her for adultery or fornication, because may be she might have a valid reason for it or an excuse (rape). But is he claims a betrayal and she denies it then they both will have to go to the process of LEAAN to keep the punishment away from each other.

5. The source: The famous narration : • The messenger of Allah (S): The Progeny is for the bed, and the stone is for the adulterer (fornicator). • ”الولد للفراش و للعاهر الحجر“ • This hadeeth is MOTAWATIR authentic and very famous in both of the schools of thought, the household and the companions. And has been mentioned as comments in different cases through our Infallibles (AS). • The SAHEEHAH of SA’D the A’RAJ, who narrates from ABO ABDILLAH (AS): I asked him about to men mated with a maid in one pure interval (between two periods), so which one of them will take the child, he (AS) said: The one who has the maid, due to the saying of the messenger of Allah (S): The Progeny for the bed, and the stone is for the adulterer (fornicator). • ”الولد للفراش و للعاهر الحجر“ • The one who has it means the master of the maid who keeps her with him always.

6. Other narrations: • The SAHEEHAH of the HALABI (Aleppo) who narrates from ABO ABDILLAH (AS): Who so ever amongst the men mate a maid unlawfully, and after that he buys her, and claims that the progeny from her is his, he will not inherit him any thing, for verily the messenger of Allah (S) said : The Progeny is for the bed, and the stone is for the adulterer (fornicator). • ”الولد للفراش و للعاهر الحجر“ • These are narrations from the books of AHLUL BAT (AS).

7. Narrations from the school of companions: • Muslim (In his SAHEEH) links the hadeeth to AESHA who narrates that: SA’D son ABO WAQAAS had a dispute with A’BD son of ZAM’AH, in a boy, so S’AD said : O messenger of Allah, this (boy) is son of my brother O’TBAH son of ABO WAQAAS, and he confirmed to me that this is his son, look at his similarity (with my brother). A’BD son of ZAMA’AH said this (boy) is my brother, and was born on the bed of my father from his maid, then the messenger of Allah looked at the similarity, and he saw a clear similarity between him (the boy) and O’TBAH , and he (S) said (after ignoring the similarity): He is for you of A’BD, the boy is for the Bed and for the adulterer is the stone…”

8. MOAWEYAH rejected this hadeeth: • MOAWEYAH (L) had a illegitimate brother ZIYAD father of the governor of KUFA who killed Imam Hussain (AS), this ZIYAAD was illegitimate child of ABO SOFIYAN, and it was not from his legal bed, so the Prophet (S) rule decrees that the adulterer must be stoned and the son should not relate to him because it is not from the bed or FERAASH. And since ABO SOFIYAN did adultery with mother of ZIYAAD does not mean that ZIYAAD is illegitimate, but it means that ABO SOFIYAAN cannot relate him as a father of ZIYAAD, but ZIYAAD should be related to his original father who was married to hi mother when ZIYAAD was born. • MOAWEYAH cared less for the Islamic laws, he was a great criminal, he had so many hideous crimes the biggest four crime mentioned are his war with Ameerul Momineen Imam Ali (AS), his murder to HIJR who was one of the best companions of the prophet (S), his appointing YAZEED his son as KHALIFA of the Muslims, and his relating ZIYAAD to ABO SOFIYAAN neglecting what the Prophet (S) decreed regarding the son is for bed and the stone is for the adulterer.

9. The word of the HADEETH • FERAASH means bed, and is used as a metaphor for a woman, since she is where a man finds comfort like the bed. • AAHIR is the adulterer, from U’HARA or committing the adultery. • The stone could mean stoning the adulterer but not every adulterer is stoned, there are some who are flogged. So the stone is a metaphor of him getting nothing and the child goes to the owner of the bed rights.

10. Causes of legal bed rights • The permanent and the temporary marriage contract, if a child is born in result of a mate in one of these contracts, the child is related to the owner of the bed rights. • Master and maid relations, as mentioned that if the mate happened between two in one pure session the master and other person, then the child will be related to the master owner of the bed rights (FERASH). • Master permitting his maid to someone else (TAHLEEL). • The mating out of confusion: If she was married, then the child is for her husband, and not for the one who mated in error. If she was not married and one mate was out of confusion and other was illegal, then none of them has the title of FERASH or the bed rights, unless if the confusion was based on a marriage she found out later that her husband was her nursed brother.