Khars (muteness in fiqh)

الخرس

Khars is lexically the lack of speech from birth, or the loss of speech through impediment; a mute (akhras) is one who cannot speak, and i'tiqal is the tongue's impediment. ¹ A mute's Islam is valid by gesture where signs show that he assents in his heart, the Maliki view and the sound Shafii view, which Ibn Nujaym also draws from the Hanafis; the Shafii variant requires him to pray after the gesture. ¹² Speech is dropped from the prayer for the mute by agreement. The Malikis, Hanbalis (except al-Qadi) and the sound Hanafi view do not require moving the tongue; the Shafiis require moving tongue and lips as far as possible; Ibn Nujaym requires it for the opening takbir and the talbiya. ² A speaker may not lead a mute in prayer; a mute may lead another mute, as the Hanafis and Malikis allow, but the Shafiis and Hanbalis forbid. ²³ A mute's gesture does not invalidate prayer for the Hanafis, the sound Shafii view and one Maliki view; the Hanbalis count it as an act, invalid only if frequent and repeated; one Maliki view and the opposite Shafii view hold that it invalidates. ³ A mute may slaughter and hunt lawfully even without saying the basmala; the Hanbalis treat a gesture to heaven as the basmala, and in hunting the mute's intention is not required. ³⁴ An intelligible gesture or clear writing stands for speech in contracts and dispositions such as sale, marriage, divorce, manumission and acquittal; divorce by intelligible gesture takes effect, and for the Shafiis and Hanbalis it is explicit if all understand it, and allusive if only some do. ⁴ Li'an by gesture or writing is valid according to most jurists, the Malikis, the Shafiis and the preferred Hanbali view, with the same effects as for a speaker; the Hanafis and some Hanbalis reject it. ⁴⁵ A mute's acknowledgement by gesture or writing is accepted for private rights, including retaliation by agreement except one Hanafi view; for hadd offences the Malikis, Shafiis and Hanbalis accept it, while the Hanafis reject it to avert the hadd by doubt. ⁵⁶ A mute's testimony is rejected by the Hanafis, the Hanbalis and the sounder Shafii view; the Malikis accept it by intelligible gesture or writing when the judge is sure of its meaning, and the Hanbalis accept writing in his hand. ⁶ Speech is a condition of judgeship for the Hanafis, the Hanbalis and the sounder Shafii view; the Malikis treat it as a duty, so he is removed, though a judgement given stands. Fatwa by a mute is valid when his gesture is understood. ⁶⁷ Oaths by gesture are valid for the Hanafis and Malikis when he is understood; the Shafiis have two views and the Hanbalis two reports. ⁷ Injury to a mute's tongue carries a fair assessment (hukuma 'adl) for the Hanafis, Malikis and Shafiis; one Hanbali view gives a third of the blood-money. Retaliation between two mutes for an intentional injury stands for the Malikis, Shafiis and Hanbalis if the wound will not spread, but the Hanafis allow none for the tongue. ⁸