Answer:
In summary, it should be understood that:
According to the Hanafi school, Hurmat-e-Musaharat (marriage prohibition due to certain causes) can be established even by touching with desire or by looking at the private part. However, the Hanafis have placed so many conditions and restrictions on this ruling that their complete occurrence is extremely rare. Therefore, in this matter, there is no need to adopt the opinion of another school of thought. And even if all those conditions are fulfilled, the difficulty arises because of a person’s own negligence and carelessness, not due to the strictness of the Hanafi school. Hence, it is not permissible to turn to another school merely for ease or personal desire.
For details, read the full explanation.
The Answer – with praise and blessings:
It should be clear that the differences between the Imams of the madhhabs are not in beliefs, but in some practical issues. Following any one of them is to make practicing Islam easier, not to follow one’s own desires. Therefore, a person who follows one Imam must follow him in all issues. If he follows one Imam in one matter and another Imam in another matter just by his own wish, this is called talfeeq and following desires, and there is no doubt that this is not allowed.
However, if there is an excuse or a strong need, and following one’s own madhhab becomes very difficult, then it is allowed to act on another reliable madhhab, with these conditions:
That madhhab must be valid (i.e., from the four Imams).
It must not be done for desire or just searching for ease, but only to get out of a need or difficulty.
It must not lead to talfeeq (mixing rulings in such a way that the act becomes invalid in all madhhabs).
From Qur’an, Sunnah, and the words of the jurists, it is proven that the prohibition of marriage (hurmat-e-musaharat) can be caused by:
Among these four causes, some are agreed upon by all, and some are different between the Imams.
Valid marriage (Nikah): After this, prohibition of marriage is established by agreement.
Intercourse (sexual relation): After valid marriage, intercourse makes prohibition by agreement. After invalid or void marriage, intercourse also makes prohibition by agreement. And zina (sex without nikah) — according to Hanafis and Hanbalis it also causes prohibition. One opinion of Malikis agrees. But the main opinion of Shafi’is and Malikis is that zina does not cause prohibition.
3 & 4. Touch and look with desire: According to Hanafis, touching with desire and looking with desire at the inner private part cause prohibition.
So, except for nikah, the other causes of prohibition are ijtihadi (scholarly differences). Now the questions:
Is it really hard to act on the Hanafi opinion here?
Do people face great difficulty if they follow it?
Has it become so common that it is a general hardship (umum al-balwa)?
Is the need so strong that fatwa can be given on another madhhab?
Before answering, it is necessary to clarify: Do Hanafis say that prohibition is proven absolutely, or do they also have conditions? After knowing the conditions, it will be easier to see how much real need there is.
Conditions of Prohibition according to Hanafis
1. Intercourse after marriage (valid or invalid): Prohibition happens by agreement, but some conditions are:
The woman must be alive.
She must be a place of sexual desire (meaning fit for intercourse, even if not yet adult). The minimum age according to the stronger opinion is 9 years, and even very old women are included.
The man must be adult or at least near puberty, minimum 12 years.
Intercourse must be in the vaginal area, not otherwise.
2. Touching (with desire): For prohibition to happen:
Touching must be without barrier, or with a barrier so thin that body heat is felt. Touching hanging hair does not cause prohibition, only hair attached to the head.
At least one of them must feel desire at the time of touching. For a man, desire means erection or increase in erection. For women, desire means heart excitement or pleasure.
The desire must be at the time of touching, not later.
If ejaculation happens before desire ends, then prohibition does not happen.
Girl must be at least 9, boy at least 12.
If woman claims desire, or man claims desire, the husband must strongly believe it, or there must be witnesses. Only a claim is not enough.
The one being touched must be alive.
3. Looking (with desire): For prohibition to happen:
The man must look at the inner part of woman’s private organ (farj daakhil). Looking at any other part does not cause prohibition. For a woman, looking at a man’s sexual organ with desire causes prohibition.
Desire must be at the time of looking, not later.
Only the one looking needs to feel desire; the one being looked at does not matter.
If ejaculation happens before desire ends, then no prohibition.
Ages: girl minimum 9, boy minimum 12.
The person must be alive.
He must look directly at the part, not through reflection in mirror or water.
Also, desire must be for that person, not for someone else.
Result:
According to Hanafis, prohibition only happens when all these conditions are fulfilled. If they are not, no prohibition.
By looking carefully, it is clear that Hanafis are more strict here, to keep people away from shamelessness and to keep society clean. In most daily cases, these conditions are not all present, so no prohibition happens. Where they are present, it is usually in free-mixing and careless environments, which themselves are wrong. Such cases cannot be called a “serious need” to leave Hanafi madhhab.
Conclusion:
In the matter of hurmat-e-musaharat, it is not allowed to give fatwa by leaving Hanafi madhhab and acting on another. Whether the cause of prohibition is before marriage or after, it is the same.
The solution is: scholars should explain this issue to people, teach them Islamic modesty, and warn them about the dangers of shamelessness, so society stays pure and clean.
