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MARCH 2000

MONTHLY    *    Vol 14-03 No:159    *   MARCH 2000 / ZIL-HIJJA 1420H
  email: editor@islamicvoice.com

OUR DIALOGUE

BY ADIL SALAHI


Expenses of Substitute Pilgrimage
Intentions for Performing Pilgrimage
Verbal Marriage Contract
Giving loan against pledged security
Custody of Young Children
Mosque over Graveyard

Expenses of Substitute Pilgrimage

If somebody delegates another person to perform the pilgrimage on his or her behalf what is the reward the latter will get for doing the substitute pilgrimage? A reader wrote to me that his brother-in-law requested him to perform the pilgrimage on behalf of his late father. He offered to pay the expenses. The reader feels that if he does this, he will not receive the reward of pilgrimage. He wants comment on this point and description of the procedure of doing a substitute pilgrimage. He also asks whether it is appropriate to take shower at home which is about 250 kilometers away from the point of meeqat.

There are two very important things to remember about substitute pilgrimage. The first is that the person undertaking it must have completed his own duty of pilgrimage. In other words, he must have offered the pilgrimage previously. The second is to make it clear at the start of pilgrimage that one is offering it on behalf of the person concerned. Thus, when he enters into the state of consecration and declares his intention of doing the pilgrimage, he must say that it is a pilgrimage on behalf of that particular person.

During his pilgrimage journey, the Prophet heard a young man declaring that his pilgrimage was on behalf of Shibrimah. He asked him who this Shibrimah was, and the man answered: "He is a brother of mine." The Prophet asked him whether he had offered his own pilgrimage. When the man answered in the negative, the Prophet said: "Offer your own pilgrimage first, then offer the pilgrimage on behalf of Shibrimah." The two cannot be combined.

When a person makes his intention clear that his pilgrimage is on behalf of his father or mother or brother, he proceeds to do all the duties of the pilgrimage and abide by all the restrictions normally. There is no difference whatsoever. The pilgrimage will be credited to the person on whose behalf it is offered, and he will receive a reward for any additional action he does himself. Thus, if he does an additional tawaf other than those of pilgrimage or he prays in the Haram with the congregation, this is his own worship. He will be rewarded for that. Moreover, if he volunteers to do the pilgrimage on that person's behalf without taking any payment, he will be rewarded generously by God. Suppose you do a pilgrimage on behalf of your deceased mother or father, and you meet all your expenses, that is an exemplary action of dutifulness which earns you rich reward from God.

If a Muslim dies without having done his pilgrimage a sufficient sum of money of what he leaves behind is set aside to pay for someone to undertake the pilgrimage on his behalf. It is perfectly appropriate for such a person to be paid his transport and reasonable expenses for the duration of his journey of pilgrimage. He is not supposed to overspend in any way. If he incurs any additional expenses, such as if he invites someone to a meal, he should pay for that from his own money. If he is given an amount of money to cover his expenses, and he completes the pilgrimage having saved a little of it, he should refund it to the family of the person concerned. However, if he is given an amount of money and is told that it is for his expenses, he may take it all and spend it the way he likes, provided he does the pilgrimage fully. I hope I have made it abundantly clear that what he is paid is his expenses for the journey, covering his transport and his living expenses during the whole journey, provided that he does not make it any longer than necessary. He does not take any fee for undertaking this task.

It is appropriate to take the shower for ihram at home and then delay entering into the state of consecration until you reach the point of meeqat. I understand that there is a distance of 250 kilometers between the two points which would take you about three hours. However, if it is convenient to take another shower at the point of meeqat, then that would be better. If not, the one you have taken at home will suffice.

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Intentions for Performing Pilgrimage

One's intention is a highly important factor in any action one may take. It makes all the difference between an action being acceptable or not. Indeed an action may earn a reward or incur a punishment according to the intention behind it. A person may stand up to pray, intending to fulfil the duty incumbent on every Muslim to offer his prayers in a certain way. He approaches his task as a believer, knowing what God requires him to do and intending to do it. He earns the reward of prayer.

Another person may do the same thing, make the same movements and say the same words, but he has no intention of praying. He does not earn any reward for prayer, because he has not prayed. He only did the movements and said the words of prayer but without intending to pray. Hence his action is not a prayer. A third person may do the same thing, but his intention is to mock Islamic prayer. He deserves God's punishment for his action.

In pilgrimage and Umrah the intention is particularly important. Moreover, the mental intention must be supported by the verbal one, because the preparations for the journey may take a long time when the intention is there, but the action has not started yet. Hence it is necessary in both duties of pilgrimage and Umrah that a person declares what he or she intends to do.

This verbal intention is done at the meeqat, when one is about to enter the Hill area, if one is coming from outside it. When one arrives at the meeqat, one should say something on the following lines: "My Lord, I intend to do the pilgrimage, (or the Umrah, or both if he is doing them both in the qiran method), so facilitate it for me and accept it from me". Or he may say: "My Lord, I respond to your call with a pilgrimage, (or an Umrah, etc.)." If one crosses the meeqat declaring his intention to do either duty and does not observe the restrictions of consecration, or ihram, he is in violation of the rules, and he needs to compensate for that.

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Verbal Marriage Contract

Mr.X is worried about the validity of his marriage because the formalities of the marriage contract were done verbally, without signing any papers. This is unusual in his place of origin. He managed to obtain a marriage certificate after his wife had signed certain forms. He would like some re-assurance.

The marriage contract is the same as any contract. It is valid when done verbally in front of witnesses. In fact, the majority of contracts in daily life are done verbally, particularly in business transactions. They are no less valid for that. As long as the two parties to a contract are making their commitment seriously, then the contract is valid.

A marriage contract is also done verbally. Both parties express their commitment and acceptance verbally. They do this in front of witnesses, who must not be less than two in number. The bride has her father or guardian acting for her, on the basis of a power of attorney she gives him, also verbally and in front of witnesses. He expresses his commitment on her behalf and the bridegroom accepts that. The marriage is valid on this basis. Whatever documentation made on paper is merely to confirm this and document the fact of the marriage that has already taken place by the verbal contract. This means that the verbal action is the basis, and the written one is merely for documentation.

I reassure my reader of the validity of his marriage. However, he needs to have it registered and documented so that he does not run into trouble of having to prove a marriage of which the authorities in his country have no record.

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Giving loan against pledged security

People often need some money for emergency, and they may find out that the only way to get what they need is to borrow that money. A person who may be ready to lend such money may ask for security to ensure that what he advances will be returned to him at the end of the specified period, or when the borrower receives money of his own with which to settle the loan. That is perfectly legitimate.

There are rules and regulations to govern the different aspects of pledged security, such as who is responsible for its custody, maintenance, expenses etc., These must be observed so that the security does not become a sort of gain the lender receives in return for advancing the money. Such a gain could easily be usurious, and if so, it is strictly forbidden.

A reader has written to me that he lent a relative of his a large amount of money, and she had given him, as security, an unregistered deed of sale of a flat which is worth roughly the same amount. She promised him that she would return to him the market value of that flat at the time of settlement. Furthermore, he is to enjoy the rent of the flat for that period. He wonders whether the transaction is correct and valid under Islamic Law.

This reader could have made a direct sale transaction with his relative, by which she sells him the flat. He would then be able to take the rent as his own, and sell it whenever he wishes at the market value of the flat at the time. Had he done so, the transaction would have been perfectly legitimate. But that sale is complete. He should be able to sell the flat at any time and to any buyer. If his relative wants to buy it back, she would be able to do so at the price they agree at the time.

But this is not the arrangement they have made. Their is a loan arrangement under which the sale deed is only a security to ensure that the loan is returned. But what the reader is getting back is the market value of the flat, not his principal amount. This is not allowed in Islamic law, because God says: "You are entitled only to the return of your principal, doing no wrong and suffering no wrong". (2:279)

This statement occurs in the middle of the verses which make it clear that all usury is strictly forbidden. Hence, we say to our reader that he cannot receive back the whole market value of the flat.

He may ask only for the amount he advanced to his relative. If the flat is sold in order to settle her loan, then he may take from the proceeds of the sale an amount equal to that he advanced, and the balance goes to his relative, the owner of the flat.

It is not permissible for him either to "enjoy" the rent of the flat for the duration of the transaction. That condition is also usurious. When any article is pledged as security against a loan, the lender with whom the security is pledged may not benefit by that article. Suppose the article is a horse, he may not ride it unless he feeds it. If it is a horse or a storehouse, he may not use it for living or to store his own goods, unless he pays its fair rent. Similarly, my reader may not receive the rent paid on his relative's flat which is given to him as security. If he does, then that is a usurious gain which is not allowed in Islam.

Under the present arrangements, he may retain the flat as security, but his relative gets its rent. If the flat is sold, he gets only the principal amount he advanced and his relative gets the balance. He must not do his relative any wrong, nor suffer any wrong himself as a result of this transaction. The terms of his agreement with his relative, as he outlined them, constitute a clear wrong done against his relative.

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Custody of Young Children

When things go awry in a marriage, and the couple are divorced, who takes care of the young children? This is a question fraught with problems because both parents want their children to stay with them. Sometimes the question of custody and the way it is handled in different countries force a mother to remain married although it is clear that she is miserable in her marriage and a divorce might be her best personal option.

She sacrifices her own happiness to remain united with her children.

Yet Islam handles this question in a most logical and fair way, looking always to the interests of the children. It does not put a general rule giving either parent a complete and permanent preference. It is what the child needs and prefers that determines where that child stays, but neither parent is deprived of their children.

Therefore, young children in a broken marriage are given to their mothers until the age of seven or nine. In this period, the child needs its mother's tender care more than anything else. The child learns from its mother practically every thing. If the marriage is still in force, the father gladly gives the child every chance to receive that care and to learn from its mother. Why should the child be deprived of all that tenderness when it needs it most, simply because its parents cannot live together?

When the child is seven years old, and it can look after itself in matters of feeding, dressing and cleaning itself properly, it is given a choice between its parents. The child joins the parent it chooses, but this choice is not permanent. It can change at any time, as long as the child expresses a preference.

This means that a child may be one day with its mother and the second day with its father, then rejoins its mother for one or two more days before going to its father again. This is looked at in a similar way to a child's choice of the food it prefers.

The point here is that the child should not be deprived of the care it needs at any time. It should have access to both parents, because each of them gives the child something that it certainly needs.

Therefore, when the child is with either parent, it should not be treated as the bone of contention in an issue over which it has no control.

When both parents realise that their child remains theirs, and that the divorce does not mean that one of them will be depriving the other of the mutual love and caring relationship with their child, the whole issue which plagues broken families everywhere is easily solved.

Moreover, when the child is given the choice, it will choose the parent which gives it better care. Unfortunately, some Muslim countries have different laws, but always concentrating on the right of the mother to the children's custody in the first few years, and handling the situation after that in different ways.

I have received a letter from Mr. X who has a son of less than two years of age, while his marriage has ended in divorce. The child is with the father's parents, but the mother is claiming it.

This is definitely a wrong situation, because it deprives the child of the better care its mother gives. My advice to him is to end all dispute with his former wife over the custody of the child, giving his son back to her, and agreeing with her that access to the child should be guaranteed to him and his parents if so they wish. When things are handled the Islamic way, causes of contention soon disappear, because both parties will be ready to allow the other their dues.

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Mosque over Graveyard

A reader who wishes to withhold his name says that he wishes to have a building constructed over a family graveyard. It is envisaged to leave some open space above the graves, and then build a few floors containing a mosque, a school for religious education and commercial space. He wonders whether it is permissible to construct such a building.

The reader obviously wants this building to provide a good service to the community. Even the commercial space is meant to serve the school and the mosque, allocating the rent toward the maintenance of both places. Nevertheless, it is not right to select the graveyard for such a building. The Prophet says " "The whole earth is a mosque except a bathroom and a graveyard". The Prophet has also denounced the Jews and the Christians for having made the burial places of their Prophets places of worship. He has warned against doing the same. In another Hadith, Ibn Abbas quotes the Prophet as saying. "Do not pray facing a grave or over a grave".

Perhaps my reader wishes to avoid this when he says that a space would be left over the graves before the area of the mosque, the school and the commercial space is built. That makes a difference as a separation, but one still wonders why choose this area for building the mosque? Since this is a family graveyard, it is better to leave it as such and build the mosque elsewhere.

If the family does not have sufficient funds for buying another piece of land, it may share with others, or contribute the amount it has allocated for the building to help in building a mosque elsewhere.

As it is clear from the Hadiths quoted above, Islam dislikes the very notion of constructing a place of worship over a graveyard, or facing a grave in prayer. On the other hand, if the graves are moved elsewhere, or to the back and the building is constructed away from them, then the project is permissible, provided that the graves are not in front of the mosque. When prayer is offered, people should not be facing these graves as they pray.

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News from Islamic World | Community Roundup | Editorial | Reader's Comments | Features | Baba Budhan Darga Controversy | Book Review | Profile | Children's Corner | Understanding Qur'an | Hadith | Prophet's Medicine | Qur'an & Science | Women in Islam | Our Dialogue | Haj | Why I Embraced Islam | Matrimonial | Subscription | Guest Room | Previous Issue | HOME | Islamic Links | Al-Nasr Exports

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