If a man unintentionally touches his daughter does Hurmat Musaaharah take place

Answered according to Hanafi Fiqh by DarulIftaBirmingham

If a man unintentionally touches his daughter, thinking her to be her wife and there is no body heat felt  and lust not present does Hurmat Musaaharah  takes place?

Answer:

In the name of Allah, the most Beneficent, the most Merciful.

Hurmat Musaaharat is a law of Shariah that forbids specific men from marrying specific women.  This law applies when there has been lawful and unlawful contact between a man and a woman (intentionally or unintentionally) with certain conditions laid down by the Shariah.  These conditions are:

  • When lawful intercourse takes place (through marriage) or unlawful intercourse (adultery and fornication) – with the condition that both the boy and the girl are mature or one is close to maturity (the girl should not be less that nine years of age and boy should not be less than twelve years).

Intercourse in the state of menstruation or post natal bleeding will have the same outcome of Hurmat Musaaharah.

  • If there is lust in either the mature or close to mature boy or girl when they make physical contact (touching, kissing etc either through lawful means such as marriage or an unlawful way like adultery or fornication) with no cloth in between or there is a cloth in between but it is so thin that the body heat can be felt through it.
  • If a male looks at the inner part of a females’ vulva with lust or a female looks at a males’ private part with lust even though there may not be an erection in the male at the time when the female is not looking (this looking can be either through a lawful means or an unlawful means) and both the male and the female are mature or close to maturity the Hurmat Musaaharah will apply.

Definition of Lust

  • If erection occurs in a male when physical contact is made or if erection increases when erection had already occurred prior to physical contact.
  • If erection does not occur in a male due to health reasons or old age, then if lust occurs in the males heart at the time of physical contact. 
  • If lust occurs in a female’s heart when physical contact is made and it was not present prior to physical contact.  If lust was present prior to physical contact and it increases when physical contact is made.
  • It is not necessary that both persons experience lust when physical contact is made.  Lust in either the male or the female will be sufficient for Hurmat Musaaharah.  (Raddul Muhtar p.107-p.114 v.4 & Hurmatul-Musaaharah p.7-p.9)

From the aforementioned information we can derive that for Hurmat Musaaharah to occur the touching must have been done in such a way that there was direct skin-to-skin contact, without a barrier unless the barrier was so thin that it does not prevent feeling body heat.

In your case as you touched your daughter unintentionally and there was no lust or body heat felt from her then Hurmat Musaaharah will not occur. Also another condition to keep in mind is that the daughter has to be seven years or older for Hurmat Musaaharah to occur. If she is younger than seven it would not occur, even though he may have touched her with lust. (Raddul Muhtar p.114 v.4 & Fatawa Darul Uloom Deoband p.379 v.7)

Only Allah Knows Best

Mohammed Tosir Miah

Darul Ifta Birmingham

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