Arham (kinship ties)

The rahm (womb) is the place where the child grows and its container; figuratively it is kinship. Kinship is of two kinds: unlawful (mahram) and lawful (ghayr mahram). The first is any two persons related so that, if one were a male and the other a female, they could not marry, such as parents, siblings, grandparents however high, children and their children however low, paternal and maternal uncles and aunts. Cousins are not unlawful to one another. ¹ Many rulings attach to kinship, among them the joining of the ties of kinship (silat al-rahm), which is doing what makes one a joiner. It is obligatory towards the parents and others according to the Hanafis, Malikis and Hanbalis; for the Shafi'is it is a sunna towards other relatives, while cutting it off after it has begun is a major sin. ¹ The joining of the mother takes precedence over the father's by consensus, on the report of the man who asked who most deserves his good company, and was told: your mother, then your mother, then your mother, then your father. ¹ Some Hanafis and al-Zarkashi of the Shafi'is hold that the elder brother is like the father and the maternal aunt like the mother in this obligation, on the report that the maternal aunt stands in the mother's place and that a man's paternal uncle is the twin of his father; but the Shafi'i scholars disagree, since the parents have a rank of honour and kindness that no other kin reaches, and they answer that resemblance in one thing, such as nursing for the aunt or honour for the uncle, does not make them equal. ³ About which kin's ties are to be joined there are two views: the first, held by a Hanafi view, a less known Maliki view and by Abu al-Khattab of the Hanbalis, is that it is only owed to unlawful kin, since if it were owed to every relative it would be impossible; the second, a Hanafi view, the well-known view of the Malikis, the text of Ahmad, and the apparent sense of the Shafi'is, is that it is owed to every relative, unlawful or not. ³ A Muslim son must join the ties with his unbelieving parents; the jurists do not require it toward other unbelieving kin, on the basis of a verse in surat al-Mujadila and an exception for the parents drawn from a verse in surat Luqman. The Hanafis, Malikis, Shafi'is and Hanbalis hold this; al-Samarqandi reports that Sahnun treated believer and unbeliever alike in joining. ⁴ The Hanafis and Shafi'is hold that the degrees of joining vary by kinship: it is stronger toward the parents than toward the unlawful kin, and stronger toward those than toward others. Joining does not mean returning a kindness, but continuing it when the other side has cut you off; al-Bukhari records: "the one who joins is not the one who repays, but the one who joins when his kin are cut off." ⁴ Joining is achieved by visits, help, meeting needs and greetings; according to Abu al-Khattab of the Hanbalis a greeting alone is not enough. It may be achieved by writing to an absent relative, according to the Hanafis, Malikis and Shafi'is, except that for the parents writing does not suffice when they ask for one's presence. Giving money to a relative is joining, and charity to a kinsman counts as charity and joining. The Hanafi and Shafi'i wording suggests that a rich person does not achieve joining by a visit alone to a needy relative when he can give money. All forms of kindness count. ^{4 5} Among the reasons for joining is the report that whoever wishes his provision widened or his life lengthened should join his kin. The jurists list further benefits: pleasing God, greater manliness, and reward after death, since kin pray for the one who joined them whenever they recall his kindness. ⁵ Ibn Hajar al-Haytami (Shafi'i) defined what counts as cutting kin, and the author of Tahdhib al-Furuq (Maliki) agreed. He gave two senses: harm done to kin, and abandoning the kindness a relative used to receive without a lawful excuse; some made it a major sin. Excuses vary by kind of joining. For visits, the Shafi'is and Malikis use the excuse that excuses skipping Friday prayer; for money, great need, loss of means, or preferring a non-relative in obedience to the law; for letters, not finding a trustworthy messenger. The Malikis add a rich relative's arrogance toward a poor one, which removes the duty of joining. ⁵ Cutting off kin whom one is commanded to join is forbidden by agreement, on the basis of a verse in surat al-Ra'd (25) condemning those who break God's covenant and cut what He ordered joined. ⁵ Most jurists give kin priority over others in what the dead is owed: washing, funeral prayer and burial. Some put the spouse before kin, and some put the executor before them. Details are in the entry on funerary rites. ⁶ On gifts to kin, taking back a gift after it has been received is agreed to be barred for those who are not ascendants or descendants. For ascendants and descendants there are three views: the first forbids taking it back, the Hanafi view and a report from Ahmad, on a hadith about a gift to a forbidden relative which al-Hakim authenticated and al-Bayhaqi judged weak; the second allows the father and all ascendants to take it back while the gift remains in the donee's control, the Shafi'i view, on the hadith that no man may take back a gift except a father; the third allows only the father and mother, the Maliki view, though the mother may take back only from an adult, or from a minor whose father is alive. Taking back is barred if the donor says the gift is for God or for joining the ties of kin. ⁶ Kin who are neither sharers nor residuaries inherit when there is no residuary or sharer on whom the remainder returns. The Hanafis and Hanbalis give them precedence over the treasury; the later jurists and the Malikis and Shafi'is do so when the treasury is not organised. There are two well-known doctrines on their inheritance: the school of substitution (ahl al-tanzil) and the school of kinship (ahl al-qaraba); a third, called ahl al-rahm, was abandoned. The method is set out in the entry on inheritance. ⁷ A bequest to non-heirs among kin is permitted by agreement. The majority hold that a bequest to one's non-heir kin includes parents and children who are barred from inheritance, since what the law forbids is a bequest to an heir. The Hanafis exclude them, because they are not customarily called kin, and calling them so would be disobedience. ⁷ The grandfather enters in the apparent Hanafi report. Elsewhere there is disagreement about how far back: the Shafi'is hold the nearest grandfather to whom a person is traced; the Hanbalis hold the father's grandfather, which is also what Abu Yusuf and Muhammad applied when they said the bequest goes to the farthest grandfather in Islam. The Hanafis later said that rule belonged to a time when kin were few, and that now it goes to the children of his father, his grandfather and great-grandfather, the children of his mother, and her grandfather and grandmother, and no further. A Hanbali report goes beyond the fourth grandfather. The children of such grandfathers enter; grandchildren are treated like grandfathers by the Hanafis, Shafi'is and Hanbalis, while the apparent Maliki view excludes them. ^{7 8} When the kin in a bequest are limited in number, males and females share equally, and all must be covered by agreement; if they are not limited, there is disagreement and detail. The Malikis, Shafis, Hanbalis and Muhammad ibn al-Hasan make no difference between near and far. Abu Hanifa gives precedence to the nearest of the unlawful kin; if none is left the bequest is void, and if only one remains he takes half. The rich and the poor are equal for the Hanafis, Shafi'is and Hanbalis; for the Malikis, a needy relative must be preferred, near or far. ⁸ When maternal kin and paternal kin are both present in a bequest there are two views. The first holds them equal: the Hanafis, Ashhab among the Malikis, the Shafi'is for non-Arab bequests and the majority of their books for Arab bequests (Arabs take pride in the mother), and the Hanbalis when the testator joined them in his life, citing the report of the Prophet ﷺ about Sa'd ibn Abi Waqqas, "Sa'd is my maternal uncle; let a man show me his maternal uncle." The second bars maternal kin: Ibn al-Qasim of the Malikis, when the testator has paternal kin who do not inherit; the more sound view among some Shafi'is for Arab bequests, since Arabs do not take pride in the mother; and the Hanbalis when he did not join them in life. ⁸ An heir who bequeaths to his own kin does not enter by the act itself, according to the Hanafis, Malikis, Hanbalis and Shafi'is. Some say he enters, and his share is then voided because he cannot validate a bequest to himself, the remainder going to others; some say he enters and receives his share. If that is barred, the Hanafis say he does not enter, while the Malikis and Hanbalis say he does. ⁸ Kinship is one cause of prohibition of marriage in general: a man may not marry his kin except the daughters of his paternal and maternal uncles and aunts. The full list and the proofs are in the entry on marriage. ⁹ Maintenance is owed to parents by children and to children by parents by agreement. It is owed to grandparents and grandchildren according to the Hanafis, Shafi'is and Hanbalis, while the Malikis limit it to parent and child, since a grandfather is not a true father, nor a son's son a true son. Other kin, outside ascendants and descendants, are owed nothing and owe nothing except according to the Hanafis (who oblige it only for a kinsman who is unlawful) and the Hanbalis (who oblige it for every heir, with two reports for non-heirs). Kin who inherit neither a fixed share nor the residue are owed nothing, except by the view of Abu al-Khattab of the Hanbalis when there is no residuary or sharer. The remaining rules are in the entry on maintenance of relatives. ⁹ A kinsman who is not unlawful stands as a stranger in looking, touching and seclusion. On a man looking at an unlawful woman, not with desire, there are three views: the Shafi'is permit all her body except what lies between the navel and the knee, with a weak Hanbali view to the same effect; the Malikis permit the forearms, hair, what is above the throat, and the tips of the feet; the Hanbalis permit the face, neck, hand, foot, head and shin, and they dislike looking at the shin and the chest as a precaution rather than as forbidden; the Hanafis permit the head, face, chest, shin and upper arm. ^{9 10} For what is forbidden to a woman in a man's body, it is what lies between the navel and the knee; the Malikis and Hanbalis hold the sounder view that she may look only at what a man may look at in an unlawful woman. Whatever is forbidden to look at is forbidden to touch, since touch is stronger in pleasure. Seclusion with unlawful kin is permitted by agreement. ¹⁰ The Malikis, Shafi'is, Hanbalis and Muhammad ibn al-Hasan of the Hanafis hold that kin who are not agnates have no right of guardianship in marriage. The sounder view of Abu Hanifa and Abu Yusuf is that they conduct the contract when there are no agnates. Their order is set out in the entry on marriage. ¹⁰ Kinship may aggravate a penalty, as in killing an unlawful kinsman, or lift it, as when a father kills or slanders his child. Details are in the entries on retaliation, adultery, slander and theft. ¹⁰ The testimony of an ascendant for a descendant, or a descendant for an ascendant, is not accepted, because each leans toward the other by nature; the hadith "Fatima is part of me; what troubles her troubles me" is cited. Other kin's testimony is accepted, though the Malikis require a brother's testimony to come from one of distinguished justice, not living at the expense of the one he testifies for, and not in a case of injury that carries retaliation. A judge may not rule for one whose testimony he may not accept, according to the Hanafis, Malikis, Shafi'is and the sound Hanbali view; he may rule for other kin, though the Malikis say not for a paternal uncle unless he is of distinguished justice. A contrary Hanbali view, stated by Abu Bakr, allows ruling for the one he would testify for; another allows it between parent and child. ¹⁰ The four schools agree that parents, however high, are freed when their children own them, and that children, however low, are freed when their parents own them, male or female, Muslim or unbeliever. For other kin, outside ascendants and descendants, there are three views: the Hanafis and Hanbalis hold that an unlawful kinsman is freed on ownership, while an unlawful relation by marriage such as a son's wife is not, and a blood relation who is not unlawful, such as a cousin, is not; the Malikis limit it to brothers and sisters; the Shafi'is limit it to ascendants and descendants. The Qur'anic verses cited for the freedom of parents and children are named in the text as surat al-Isra (24) and surat Maryam (88 to 93), and are not quoted here. ^{10 2}