Desire and the Dissolution of Marriage? The Issue of “Hurmat al-Musahara”

Answered by Shaykh Faraz Rabbani

Question

If a mother touches her son and her son who already had an erection slightly increased does marriage break and What if the slight increase happened but no lust?can he take dispensation from other schools?

Answer

Walaikum Assalam,

I hope you’re doing well, insha’Allah. 

What you mentioned doesn’t affect the validity of the marriage.

Allah Most High is the Most Merciful (al-Rahman), and has sent Prophets with guidance through revelation as light, clarity, and mercy to creation.

As such, all the teachings of the religion of Islam—if soundly interpreted and understood—embody wisdom, mercy, light, and good.

It is an aspect of the human condition that both men and women have been created with desire and lust; that this desire can be directed in wrongful ways; and that people can harm those around them in order to fulfill their desires. This harm can—and does—exist within immediate family, to devastating harm, hurt, and lasting consequences.

In order to prevent the harmful fulfillment of sexual desires within the context of family, sexual relations with one’s spouse’s parent or child has impact on the validity of the marriage. This is a firm punishment, but it is meant to serve as a clear deterrent from such harmful conduct.

What Causes Marriage Dissolution Due To Sexual Relations?

One. There is consensus that mere touching or even kissing of the parent or child of one’s spouse without strong desire doesn’t affect the validity of the marriage.

Two. In other than the Hanafi school, it is only actual sexual intercourse with them that affects the validity of the marriage. (In sensitive cases, one could consult a qualified scholar as to whether this position should be taken.)

It goes without saying, that all sexual thinking or  contact with family (other than one’s spouse) is a serious sin, and requires repentance and rectification.

Three. In the Hanafi school, contact with the parent or child of one’s spouse with desire invalidates the marriage, but with conditions: (a) that the desire be strong—such that it results in an erection in the case of the man, or strong sexual lust in the case of the women; (b) that this desire be at the time of the contact; and (c) that the contact be direct skin to skin contact.

[Ibn Abidin, Radd al-Muhtar; Zuhayli, al-Fiqh al-Islami; al-Mawsu`a al-Kuwaitiyya; Shirbini, Mughni al-Muhtaj Sharh al-Minhaj; Ibn Qudama, al-Mughni; Dardir, al-Sharh al-Saghir]\

Of course, any active sexual thinking—let alone actual sexual contact (even when not fulfilling the conditions of marital dissolution) is strictly prohibited, and sinful.

What If You’re Uncertain About Fulfilling the Above Conditions?

The basis is that the marriage is intact; and that any contact between family members is innocent and without sexual implications.

Any doubts must be ignored, as they’re considered mere misgivings (waswasa), whose source is the Shaytan.

It is important to maintain decency, dignity, and modesty in both dress and conduct—for both men and women—within family. Not looking at one’s family members (besides one’s own spouse) with desire; not acting with ill-intent; and so on are all obligatory.

If one has ill-thoughts about family members, one needs to seek Allah’s forgiveness (istighfar); repent from any active thinking with desire about them; guard one’s gaze and conduct; and—if this struggle persists—one must immediately seek qualified counsel, as the personal or familial harm of such desires is devastating.

If one is tested, yet they turn to Allah Most High for assistance and take the means described above, then Divine Facilitation is a promise.

And Allah is the giver of success and facilitation. 

[Shaykh] Faraz Rabbani 

Shaykh Faraz Rabbani spent ten years studying with some of the leading scholars of recent times, first in Damascus and Amman, Jordan. His teachers include the foremost theologian of recent times in Damascus, the late Shaykh Adib al-Kallas (may Allah have mercy on him), and his student Shaykh Hassan al-Hindi, one of the leading Hanafi fuqaha of the present age. He returned to Canada in 2007, where he founded SeekersGuidance to meet the urgent need to spread Islamic knowledge–both online and on the ground–in a reliable, relevant, inspiring, and accessible manner. He is the author of Absolute Essentials of Islam: Faith, Prayer, and the Path of Salvation According to the Hanafi School (White Thread Press, 2004.) Since 2011, Shaykh Faraz has been named one of the 500 most influential Muslims by the Royal Islamic Strategic Studies Center.