#1180: Ruling on a Man with Ablution touching a Woman`s Breast
QUESTION
If a man with Ablution intentionally touched a woman’s breasts, what is the condition of his Ablution? Valid or not
ANSWER:
Alhamdulillāh!
Beloved one, know that there are different scenerios to this.
The first: that he touches the woman without Pleasure (Sexual arousal or appetite)
The Second: that he touches her without Pleasure-Seeking (Shahwah)
The third: that he intended to seek pleasure by so doing but did not get to feel it when he touched her
The fourth: that he didn’t intend pleasure seeking but felt it upon touching her
The position favoured by the Hanafis is that touching a Non-Mahram woman does not invalidate the Wudhū whether with Pleasure – Shahwah – or not and they were emphatic about this.
Imām Zaynuddīn Ibn Najīm rahimahullāh said in Al-Bahru Ar-Rā’iq: “The touching of the body of a woman does not terminate the Wudhū regardless of whether it is accompanied by Sexual Pleasure (Shahwah) or not”. They argued that there is nothing to prove that mere touching invalidate the Wudhū. What evidence abounds to its effect is the ejaculation of semen or the passage of prostatic fluid (Madhyu) and the likes. They also said, had touching been an invalidation of the Wudhū, then it would have been clearly stated by the Rasūl Salallāhu Alayhi Wasallam since this was one thing that is expected to be very oft repeating. Rather, there are Ahādith to the contrary where it is mentioned that the Rasūl Salallāhu Alayhi Wasallam touched his wives and did not repeat his Wudhū. Of them is the Hadith that was recorded by Imām Al-Bukhārī from ‘Āishah radiyallāhu ‘anha that she said:
كُنْتُ أَنَامُ بَيْنَ يَدَيْ رَسُولِ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ وَرِجْلَايَ فِي قِبْلَتِهِ فَإِذَا سَجَدَ غَمَزَنِي فَقَبَضْتُ رِجْلَيَّ فَإِذَا قَامَ بَسَطْتُهُمَا
“I would be sleeping in front of the Messenger of Allāh Salallāhu Alayhi Wasallam while my legs are in between him and his Qiblah, then when he intends to make the Sujūd, he taps me, then I withdraw my legs. And when he rises to stand, I spread them out again”
If it is said, this was a necessity, or a touching between him and his wife, or a touching without Shahwah, they responded by saying: It is Harām in the Sharī’ah unrestrictedly to touch a woman who is not Mahram. But the ruling of touching a Non-Mahram woman is an entirely different matter from the ruling of it terminating the Wudhū.
If it is said, it was a necessity, they respond with another Hadīth from ‘Ā’ishah radiyallāhu ‘anha that was recorded by Abū Dāwud As-Sijistānī where she said that the Rasūl Salallāhu Alayhi Wasallam kissed one of his wives and did not repeat his Wudhū. Though some of the Ulamā considered this Hadīth to be weak, it was considered Sahih by others.
The Position favoured by the Shāfi’īs is that touching a woman invalidate the Wudhū regardless of whether there was in intention to seek pleasure or not. Imām An-Nawawī mentioned this in Al-Majmū’. Their argument is that in the Qur’ān where Allāh mentioned the reasons for the invalidation of Wudhū, he said:
{أو لامستم النساء}
“Or you have touched women”
The Shāfi’īs interprete the touching here as unrestricted and normal touching. Whereas, the linguistic rendering of this, as favored by the majority is sexual intercourse and penetration. And some referred to sexual romance that comes from both parties.
Qādī Abubakr bn Al-‘Arabī in Ah’kāmu Al-Qur’ān maintained that this interpretation is one about which there is difference but what is most evident is that it refers to intercourse and intense foreplay about which emission of fluid or ejaculation is expected.
And Allāh knows best.
The position favoured by the Mālikis and the Hanbalīs is that the touching only invalidates the Wudhū if there was intention to attain sexual pleasure or it was attained upon touching.
This is a middle position that marries between the two unrestricted positions favoured by the two earlier schools alluded to.
In granting strength and supporting this position, Qādī Abubakr bn Al-‘Arabī Al-Mālikī said in his Tafsīr:
“Though Ibn ‘Abbās had said: Indeed Allāh Ta’ālā promotes Shyness, Honour and Finess of Character, thus He used the term Lams to refer to Sexual Intercourse, Ibn ‘Umar had said that a man’s kissing of his wife and intense caressing of her is part of The Mulāmasah (referred to in the verse). This is same as what Ibn Mas’ūd said, and he is a Kūfī. So why then is Abū Hanīfah disagreeing with him??”
To shed some light on this, it is known by the Ulamā and Students of Knowledge that the Schools of Fiqh in the time of the Predecessors were mainly Madīnah, Makkah, Misr (Egypt), Kūfah, Basrah and Dimashq. And each of these Schools had their proponents and Imams among the Sahābah of the Rasūl Salallāhu Alayhi Wasallam. It is known also that Ibn Mas’ūd was one of the Imams of the Kūffan School from where comes forth the Hanafi Madh’hab. What Qādī Abubakr is wondering is why Abū Hanīfah, though been a Kūffan kept aside the Tafsīr of Lams favoured by his Imām to that favoured by Ibn ‘Abbās. And Allāh knows best.
Know O brother, that the Fuqahā are in agreement that once there is emission of fluid (Semen or Prostatic) from the male organ, the Wudhū is vitiated. What they differed on is the touching that does not lead to an emission.
What seems stronger, based on evidences of all the Fuqahā is the position of the Hanafīs because the Tafsīr of Ibn ‘Abbās is stronger as attested to by the Rasūl Salallāhu Alayhi Wasallam. This is the position preferred by Shaykhu Al-Islām Ibn Taymiyyah rahimahullāh. However, what is safer is the position held by the Mālikis and the Hanbalis.
Now, coming to your question, it is difficult to assume that a man will touch the breasts of a woman by error or that he would touch it without an emission. Our statement to you or whosoever the question refers to is to fear Allāh and not to take the Wrath of Allāh for granted. A person gathers sins in bits and ends up drowning in them if he persists long enough. And may Allāh save us from that.
Bārakallāhu Fīkum
Jazakumullāhu Khayran
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