Travel

[New Gal]

Firstly, the principle of Islamic jurisprudence quoted above is surely an accepted theory among the classical Fuqaha, but one needs to understand the concept behind this principle. The meaning of “laws changing” is not that the laws of Shariah will change in accordance with the time and era, rather, laws that are based on custom and habit (urf ) or the rules of Fiqh which are based on juristic opinion (ra’i) or Ijtihad have often been formulated in the light of prevailing custom. It is therefore permissible to depart from them if the custom on which they were founded changes in the course of time. Rulings that are based upon clear texts of the Qur’an and Sunnah can never change. The scholars of Usul al-Fiqh stipulate that a custom or a practice which is contrary to the text of the Qur’an and Sunnah is an unacceptable custom (urf al-Fasid). (See: Ibn Abidin, Nashr al-Urf fi bina ba’d al-ahkam ala al-urf, P. 115).
Secondly, there is a Difference between legal Wisdoms and legal Reasons. The rulings of Shariah are always based on the reason (illa) and not the wisdom (hikma) behind it.

An example for this is that the wisdom behind the prohibition of wine and alcohol is that it creates enmity and hatred between people and it hinders one from the remembrance of Allah. The reason, however, is that it is an intoxicating substance. Now, if one was to say that wine will be Halal for me, as I will lock myself up after drinking wine, thus no destruction will be caused. Any sane person will conclude that he is wrong, as wine is Haram whether you cause any destruction and damage to others or not. The reason being, that the cause for the prohibition of wine is that it intoxicates you, regardless of whether the wisdom is present or not. (See: Usul al-Iftaa & other usul books).

This can be understood more clearly with an example from our day to day life. The law states that the driver must stop his car when the lights are red. The wisdom behind this ruling is that it stops and prevents accidents. However, the reason (illa) for this ruling is the lights being red. Now, a driver who is driving in the middle of the night sees that the light is red, but does not see any sign of a car. If the law was based on the wisdom (which is to prevent accidents), then it would be permissible for his to drive through the red light. However, as it is common knowledge, that despite there being no possibility of an accident, he must stop his car otherwise he will be arrested if caught, for the law is based upon the reason and not the wisdom.

The same is with women travelling without a Mahram. The wisdom behind this ruling is surely to save her from the dangers that can be encountered in the journey. However, this is not the legal reason. The reason (illa) is her travelling the distance of three days and three nights, thus whether the journey is safe, in a plane or on foot, it will remain impermissible.

This is very similar to the ruling of shortening the prayers whilst on journey a (qasr). The wisdom behind the ruling is undue hardship (mashaqqa); however, this is not the reason. The reason is the travelling distance of three days and three nights. Therefore, all the Hanafi scholars (classic and contemporary) have declared that it is incumbent upon a traveller to shorten the fardh prayers, even if one was in a perfectly comfortable journey. We don’t see people suggesting that the prayers must not be shortened due to the modern day means of transport!

[New Gal]

Thirdly, if one was to look at the exceptions made by some of the classical scholars of the other schools of thought, it would be evident that these exceptions and dispensations are only in relation to the journey of Hajj. The reason for this is that there has been a lot of emphasis in the Qur’an and Sunnah regarding the obligation of Hajj, thus we have two types of texts that apparently contradict one another. However, this can never be generalized to all types of journeys.

For example, Imam Nawawi, the great Shafi’i jurist (may Allah have mercy on him) states in his monumental commentary of Sahih Muslim:

“There is a consensus (ijma’) of the Ummah that it is obligatory upon a woman to perform Hajj if she is able to do so, due to the general nature of the verse: “Pilgrimage to the house of Allah is a duty men owe to Allah for those who can afford the journey” (Ali Imran, 97), and because of the Hadith “Islam is based on five things”. However, scholars differ as to whether a Mahram is a pre-requisite for a woman to perform the Hajj. Abu Hanifa (Allah have mercy on him) considers it a condition for the Hajj to be obligatory unless the distance between her and Makkah is less than three Marahil. His opinion is also endorsed by a group of Hadith scholars, people of ra’i, Hasan al-Basri and Nakha’i (Allah have mercy on them all). However, Ata, Sa’id ibn Jubayr, Ibn Sirin, Malik, al-Awzai’i, Shafi’i (Allah have mercy on them all) say that a Mahram is not a pre-requisite in order for her travelling to Hajj; rather the condition is safety in the journey. Some of our (Shafi’i) scholars have said: “Safety will be acquired with the husband, Mahram or a group of trustworthy women, and Hajj is not obligatory if one of these three is not found. Therefore, if there was only one trustworthy woman, Hajj would not be obligatory, but to perform Hajj will be permissible. This is the correct opinion……

Our (Shafi’i) scholars differed as to the ruling of her travelling for optional Hajj, visiting family and friends, for business or other such journeys that are not obligatory. Some said: “It will be permissible for her travel for these causes with a group of trustworthy women just as this is permissible for the obligatory Hajj. However, the majority of the scholars (jumhur) state that it is impermissible for her to travel unless accompanied by her husband or Mahram, and this is the correct opinion due to the authentic and established narrations. Qadhi Iyad (a major Maliki scholar, m) said: “All the scholars have agreed on the fact that a woman can not travel besides Hajj and Umrah except in the company of her Mahram, with the exception of migrating from Dar al-Harb, for the reason that it is unlawful (haram) for her to remain in the lands of the Kuffar”. (Nawawi, al-Minhaj sharh Muslim ibn al-Hajjaj, P. 1015, Dar ibn Hazm, Beirut).

The above excerpt of Imam Nawawi (may Allah have mercy on him) indicates that the dispensation given for a woman to travel in a group of upright and trustworthy women or with one upright woman is only in the journey of Hajj. The great Maliki scholar, Qadhi Iyad (from whom Imam Nawawi quoted) relates the consensus of all the scholars.

Imam Nawawi (may Allah have mercy on him) confirms this in his al-Majmu’ where he states:

“The second opinion (in the Shafi’i school) is that a woman must not travel for other than Hajj without a Mahram, and this is the correct opinion and clearly related from Imam Shafi’i himself in his al-Umm. The reason is that to travel for other than Hajj is not obligatory”. Thereafter he quotes all the narrations that have been narrated from the Messenger of Allah (Allah bless him & give him peace) in this regard. (See: Kitab al-Majmu’ Sharh al-Muhazzab, 7/460).

The Maliki Madhab is also quite clear on this. We have already cited the opinion of Qadhi Iyad in Imam Nawawi’s commentary. Also, one of the major authorities in the Maliki school, Imam Dasouqi (may Allah have mercy on him) sates:

“If the journey is obligatory (like Hajj, m), it will be permissible for her to travel in the company of a Mahram, husband or a group of trustworthy and upright people. If the journey is recommended (mandub, and not obligatory), then it will be permitted for her to travel with only her husband or a Mahram and not in a group”. (Hashiya al-Dasouqi ala Sharh al-Kabir, 2/14).

The Hanbali school is similar to the Hanafi school in that a woman must not travel without her Mahram accompanying her even for the auspicious journey of Hajj. Imam al-Bahuti (may Allah have mercy on him) states:

“If a woman performed Hajj without a Mahram, this will be unlawful (haram) for her, although the obligation of Hajj will be lifted”. (Kashaf al-Qina ala matn al-Iqna, 2/213. Also see: Ibn Qudama, al-Mugni, 3/236-237).

The foregoing is clear in determining that none of the four major Fiqh schools of thought permit a woman to travel without her husband or a Mahram in a journey besides Hajj. The Shafi’i and Maliki schools give an dispensation in that she may travel only for Hajj in a group of trustworthy and upright women (or one woman, according to some) given the importance and significance of the ritual of Hajj.

Therefore, it will not be permissible for a woman to travel over 48 miles in order to visit her family and friends, acquire knowledge or any other social reason. It is also strictly impermissible in the Hanafi and Hanbali schools for her to travel for Hajj, and permissible with a group of upright women, however, in the Shafi’i and Maliki schools.

Some try to justify women’s travelling with the Hadith where the Messenger of Allah (Allah bless him & give him peace) mentioned that a woman will travel and perform Tawaf of the Ka’ba without a husband with her (Sahih al-Bukhari). This Hadith seems to suggest the permissibility of women travelling alone, but it needs further, more precise analysis. The Shafi’i school, for example, considered this Hadith as evidence that a woman may travel for Hajj without a Mahram if the journey is safe. The Hanafi jurists, however, pointed out that this Hadith is an account of something which is going to happen, and as such is not a sign of its approval or permissibility. In any case, it seems very shaky to deduce a general permissibility of a woman travelling alone in safety just from this hadith, especially in view of all the other evidences. (See: Fath al-Bari, Umdat al-Qari & I’la al-Sunan).

It must be remarked here that the Shariah principle is that unlawful things become permissible in case of necessity, such as consuming pork becomes permissible when one fears death out of hunger. Contemporary scholars have given a dispensation in that if a woman does not have a Mahram (for one reason or another) and she is in a dire situation, then it will be permissible for her to travel. One of the great contemporary scholars, Shaykh Mufti Muhammad Taqi al-Usmani (may Allah preserve him) states:

“However, in the case of a woman who has neither a husband nor a father, nor does she have some other relative who could support her financially, nor does she have enough funds to take care of her needs, it would, under this situation, become permissible for her to go out of the house under legal hijab and earn her living to the limit of her need. Now, when this purpose can be easily achieved while living in one's own country or city, then there is no need to travel to a foreign land. If there is no other way for her, but to travel to another city, and she does not have any Mahrams, then only in this situation it will be permissible for her to take the opinion of Imam Shafi’i and Imam Malik, for they have given permission for her to travel with a group of trustworthy women”. (Buhuth fi qadhaya fiqhiyya al-mu’asira, P. 338).

I would like to add here that, as we have seen, the Shafi’i and Maliki schools have only given a dispensation in travelling for Hajj, thus this dispensation would be based on the concept of necessity.

Finally before parting, it would be wise to mention, that a woman's Mahram is a permanently non-marriageable male relative of hers. According to the majority of scholars, his being a Muslim is not a condition.

It is stated al-Fatwa al-Hindiyya:

“A Mahram is the husband and those for whom it is permanently unlawful to marry the woman, whether this is due to blood relationship, fosterage, or marriage (such as the father in-law, m). It is a condition that he is trusted, sane, and has reached puberty (baligh), whether he is free or a slave and regardless of whether he is a Muslim or a unbeliever. However, if he is a fire worshiper who considers marriage with relations and family members lawful, then she should avoid travelling with him. A boy who is close to puberty will be considered to be mature”. (al-Fatawa al-Hindiyya, 1/219).

And Allah knows best

Muhammad ibn Adam
Darul Iftaa
Leicester, UK

Ruling on Women Travelling without a Mahram

[New Gal]

I'm sorry I had to split it all up due to the length

[ArabRose]

"This can be understood more clearly with an example from our day to day life. The law states that the driver must stop his car when the lights are red. The wisdom behind this ruling is that it stops and prevents accidents. However, the reason (illa) for this ruling is the lights being red. Now, a driver who is driving in the middle of the night sees that the light is red, but does not see any sign of a car. If the law was based on the wisdom (which is to prevent accidents), then it would be permissible for his to drive through the red light. However, as it is common knowledge, that despite there being no possibility of an accident, he must stop his car otherwise he will be arrested if caught, for the law is based upon the reason and not the wisdom."

Does this explain the crazy driving here in Cairo? They do not have to stop at red light as long as the law (at least in their minds) are is based on 'wisdom' and not 'reason'?

[New Gal]

Er thats just bad driving and a lack of traffic regulations or poorly enforced traffic regulations, not something based in Islam. Sheesh!

[LOLALOLITA]

Is a great,great ideea!i went to sharm and hurgada and i was searching a year for a pal to go with,unfortunately i didn't found(of course,i was looking for a female companion).so,tell me please the name of website.

[mamasue]

in Egypt.... a woman is allowed by law to travel alone.... meaning nobody will stop a woman from travelling alone.....

But.... it's not normally done.... especially a covered muslim woman.

[New Gal]

LolaLolita, I have PM'd you