📝Touching a Non-Mahram woman, does it nullify the Wudhu?

 🌴بســـم اللــه الرحــمــن الـرحـــيــم 🌴

🔶🔹’Ad-Durar Al-Bahiyyah’🔹🔶

▪️Author: Imām Ash-Shawkāni

-May Allah have mercy on him-

▪️Explanation: By Shaykh Hassan bin Muhammed Ba Shu'ayb 

-May Allah preserve him-

📚Chapter of the nullifiers of the Wudhu

📝Touching a Non-Mahram woman, does it nullify the Wudhu?

There are different Madhabs in it:

The first:

Unrestrictedly nullifies, lustfully or not lustfully.

This is the Madhab of:

➖Shaafi'i

➖Awzaa'i

➖Thaahiriyyah

Their proof is the statement of the Most High:

(وَإِن كُنتُمْ جُنُبًا فَٱطَّهَّرُوا۟ۚ وَإِن كُنتُم مَّرْضَىٰٓ أَوْ عَلَىٰ سَفَرٍ أَوْ جَآءَ أَحَدٌ مِّنكُم مِّنَ ٱلْغَآئِطِ أَوْ لَٰمَسْتُمُ ٱلنِّسَآءَ فَلَمْ تَجِدُوا۟ مَآءً فَتَيَمَّمُوا۟ صَعِيدًا طَيِّبًا)

"If you are in a state of Janaba (i.e. had a sexual discharge), purify yourself (bathe your whole body). But if you are ill or on a journey or any of you comes from answering the call of nature, or you have been in contact with women (i.e sexual intercourse [upon what's most correct]) and you find no water, then perform Tayammum with clean earth"

[Al-Ma'idah:6]

Imam Shaafi'i, may Allah have mercy upon him, said:

What's more correct is that He has obligated to make Wudhu from relieving oneself (stool/urine), and obligated it for coming into contact, it was only mentioned connected to relieving oneself after mentioning Janaba. 

So it's more correct that coming into contact is by touching of the hand and by kissing, besides Janaba

I was informed by Maalik, from Ibn Shihaab, from Saalim bin 'Abdullah, from his father, that he said:

A man kissing his wife and touching her with his hand is coming into contact, so whoever kisses his wife or touches her with his hand has to make Wudhu. 

End of speech from Al-Umm (1/29).

The second Madhab:

Unrestricted lack of nullifying, this is the Madhab of:

➖The Hanafiyyah

➖and a narration from Ahmed

Their proof is the Hadith of 'Aisha, she said:

I noticed the Messenger of Allah ﷺ was missing from the bed, so I looked for him and my hand landed on the back of his feet, as they were errected, while he was prostration, he was saying:

(اللهُمَّ أَعُوذُ بِرِضَاكَ مِنْ سَخَطِكَ، وَبِمُعَافَاتِكَ مِنْ عُقُوبَتِكَ، وَأَعُوذُ بِكَ مِنْكَ لَا أُحْصِي ثَنَاءً عَلَيْكَ أَنْتَ كَمَا أَثْنَيْتَ عَلَى نَفْسِكَ)

"O Allah, I seek refuge with Your Pleasure from Your Anger, with Your Pardon from Your Punishment, I seek refuge with You from You, I can not praise You as You deserve, You as you praise yourself"

Reported by Muslim (486).

The point of benefit is her hand landing on the feet of the Prophet ﷺ while he was prostrating, and him continuing to pray. 

And the Hadith of 'Aisha, the wife of the Prophet ﷺ, that she said:

I was sleeping infront of the Messenger of Allah ﷺ and my legs were infront of him, when he prostrated he would touch me, and I would retract my legs, and when he stood I would stretch them out again".

She said:

The houses then didn't have lantarns. 

Reported by Bukhari (382), Muslim (512).

The meaning of touch me:

He poked me with his finger. 

Al-Haafidh, Ibn Hajr, may Allah have mercy upon him, said:

Her statement 'touch me' has been used as a proof for that touching women does not nullify the Wudhu, it has been followed up with the possibility of their being a barrier of sorts or that this is specific (to the Prophet ﷺ).

End of speech from Al-Fath (1/492).

Zarqaani said:

The basis is the lack of there being a barrier, and it being specific (to the Prophet ﷺ) is not established through possibilities. 

End of speech from Sharh Al-Muwatta (1/425).

As for the Hadith of 'Aisha, that the Prophet ﷺ kissed one of his wives then departed to the prayer and not making Wudhu. 

'Urwah said:

I said to her:

Who is she except that it's you? 

Whereby she laughed. 

Reported by Ahmed (25766), Abu Daud (179), Tirmidhi (86), Ibn Majah (502) and others, and it has been declared inauthentic by the Imams.

Tirmidhi said:

I heard Abu Bakar Al-'Attaar Al-Basri say mentioned, from 'Ali bin Al-Madeeni, he said:

Yahya bin Sa'eed Al-Qattaan has declared this Hadith inauthentic, he said:

It tantamounts to nothing. 

And I heard Muhammed bin Isma'eel declare this Hadith to be inauthentic. 

There isn't anything authentic from the Prophet ﷺ in this subject matter. 

End of speech. 

Ibn Abu Hatim said:

I heard my father say: 

The Hadith of 'Aisha of leaving the Wudhu after kissing isn't authentic. 

End of speech from Al-Illal (1/567).

Ibn Qudamah said:

As for the Hadith of the kiss, all of the different routes of the chain of narration are defective. 

End of speech from Al-Mughni (1/142).

Al-Haafidh, Ibn Hajar, said:

It has been narrated from ten different angles from 'Aisha, they have been mentioned by Bayhaqi in 'Khilaafiyyaat' and he declared them to be inauthentic. 

End of speech from At-Talkhees (1/339).

The third Madhab:

That it doesn't nullify the Wudhu except if it was a touch of desire, this is the position of:

➖Maalik

➖and a narration from Ahmed

Their evidence:

Reconcilating between the evidences, they understood the verse to mean a desireful contact. 

And the Hadiths that thr touching occured without their being any desire. 

The most correct position is the second Madhab, the unrestricted lack of nullifying of the Wudhu.

And this is the choice of the following Imams:

➖Shaykh-Ul-Islam ibn Taymiyyah

➖San'aani

➖Shawkaani

➖Ibn Baz

➖Albaani

➖Ibn 'Utheymeen

➖Waadi'i

May Allah have mercy upon them all. 

And regarding the statwent of Allah, the Most High:

(أَوْ لَٰمَسْتُمُ ٱلنِّسَآءَ)

"or you have been in contact with women (i.e sexual intercourse [upon what's most correct])"

[Al-Ma'idah:6]

Shaykh-Ul-Islam, Ibn Taymiyyah, may Allah have mercy upon him, said:

What's intended with this is: sexual intercourse. 

As mentioned by Ibn 'Abbas, may Allah be pleased with him, and others. 

And this is what is correct regarding the meaning of the verse, and there is not regarding the nullification of the Wudhu by touching women, anything from the Book or the Sunnah. 

The Muslims would always touch their wives, and not one single Muslim narrated from the Prophet ﷺ that he commanded anyone to perform Wudhu from having touched women. 

End of speech from Al-Fataawa (21/401)

Ibn 'Utheymeen, may Allah have mercy upon him, said:

There's an evidence in the verse for that - I.e that what's intended is sexual intercourse - whereby purification is categorised into basis and replacement, minor and major. 

And all the different causes are made clear, from the small and the big and in the situations of the basis and replacement. 

The explanation of this is that Allah, the Most High, said:

(يَٰٓأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا۟ إِذَا قُمْتُمْ إِلَى ٱلصَّلَوٰةِ فَٱغْسِلُوا۟ وُجُوهَكُمْ وَأَيْدِيَكُمْ إِلَى ٱلْمَرَافِقِ وَٱمْسَحُوا۟ بِرُءُوسِكُمْ وَأَرْجُلَكُمْ إِلَى ٱلْكَعْبَيْنِۚ)

"O you who believe! When you intend to offer As-Salat (the prayer), wash your faces and your hands (forearms) up to the elbows, rub (by passing wet hands over) your heads, and (wash) your feet up to ankles."

This is the purification by way of water, the basis, minor. 

Then He said:

(وَإِن كُنتُمْ جُنُبًا فَٱطَّهَّرُوا۟ۚ)

"If you are in a state of Janaba (i.e. had a sexual discharge) purify yourself (i.e bathe your whole body)."

This is purification by way of water, the basis, major. 

(وَإِن كُنتُم مَّرْضَىٰٓ أَوْ عَلَىٰ سَفَرٍ أَوْ جَآءَ أَحَدٌ مِّنكُم مِّنَ ٱلْغَآئِطِ أَوْ لَٰمَسْتُمُ ٱلنِّسَآءَ فَلَمْ تَجِدُوا۟ مَآءً فَتَيَمَّمُوا۟)

"But if you are ill or on a journey or any of you comes from answering the call of nature, or you have been in contact with women (i.e. sexual intercourse[upon what's most correct]) and you find no water, then perform Tayammum"

(فَتَيَمَّمُوا۟)

"then perform Tayammum"

This is the replacement. 

(أَوْ جَآءَ أَحَدٌ مِّنكُم مِّنَ ٱلْغَآئِطِ)

"or any of you comes from answering the call of nature"

This is clarifying the cause of the minor. 

(أَوْ لَٰمَسْتُمُ ٱلنِّسَآءَ)

"or you have been in contact with women (i.e sexual intercourse [upon what's most correct])"

This is the clarification of the cause of the major. 

If we understood it to mean contact which is the touching by hand, then this noble verse would of mentioned two causes for minor impurity, and Allah would've not mentioned anything about the cause of the major. 

While He said:

(وَإِن كُنتُمْ جُنُبًا فَٱطَّهَّرُوا۟ۚ)

"If you are in a state of Janaba (i.e. had a sexual discharge) purify yourself (i.e bathe your whole body)."

This is contrary to the Quranic elequence ... 

Upon this, the verse points towards that the meaning of His statement:

(أَوْ لَٰمَسْتُمُ ٱلنِّسَآءَ)

"or you have been in contact with women (i.e sexual intercourse [upon what's most correct])"

Means: "When you have sexual intercourse with them".

So Allah, the Most High, mentioned two causes which necessitate purification, one cause for the major (impurity) and a cause for the minor (impurity). 

Two purifications for the body parts, one major for the whole body, and a replacement which is the purification by way of Tayammum for the two body parts only, because it's equal to the major and minor purification. 

So what's most correct is:

That the touching of women, doesn't nullify the Wudhu unrestrictedly, except if someone was to discharge, so the nullification would be due to what has discharged. 

End of speech from Sharh Al-Mumti' (1/290).

____

Translated by: 

Abu 'Abdirrahman 'Abdullaah bin Ahmed Ash-Shingaani