Wat' (intercourse, fiqh)

وَطْء

Wat', lexically, is standing over a thing; it is also used for intercourse, the insertion of a male member into a female's sexual organ until the two are as one. The technical sense does not depart from the lexical. ¹²

Related words: nikah, whose root is joining and gathering, is used in the strict sense for the marriage contract and in a figurative sense for intercourse, or the reverse, as the lexicographers and jurists differ; liwat is intercourse with males, which falls under the wider wat'. ²

First, wat' as intercourse. It is either lawful or forbidden. The lawful is intercourse with a wife or a concubine, which may be forbidden at times, such as during menstruation or post-natal bleeding, before a zihar is expiated, in ihram, while fasting or in i'tikaf. The forbidden is either of a kind that could be lawful in another case, such as intercourse with a woman who may be married to one, which carries the penalty of zina, or of a kind that can never be lawful, such as sodomy, anal intercourse with a wife or a non-wife, and bestiality. ²³

The causes that make intercourse lawful are the marriage contract and ownership of the right hand. Ownership of a female slave is lawful without a contract, because ownership of the person carries the use. The Qur'an alludes to this in the sura of al-Mu'minun (cited by sura only) without a verse being quoted here. ³

The ruling: the majority of jurists hold that intercourse with a wife or concubine is in principle permitted, being a pleasure that the natural disposition calls for, with no obedience or disobedience in itself. It becomes recommended with a good intention, such as keeping oneself chaste from the unlawful, may become obligatory when it is the only means of chastity for oneself or one's household, and may be forbidden or disliked according to circumstances. ³⁴

Ibn al-Qayyim lists the purposes of intercourse: preserving the progeny, releasing the water that harms the body if it is retained, and the fulfilment of desire and pleasure; its benefits include lowering the gaze, restraining the self and securing chastity. ⁴⁵

The reward for lawful intercourse: the report of Abu Dharr that 'in the intimacy of one of you there is charity' is cited; the majority hold that a man is rewarded for intercourse with his wife when accompanied by a good intention, such as keeping himself or his wife from the unlawful, fulfilling her right in proper companionship, or seeking a righteous child. ⁵ Where the man intends nothing but the fulfilment of his desire, the jurists differ: Ibn Qutayba holds he is rewarded in every case, while Ibn Hajar al-Haytami and others say there is no reward where no such intention exists. ⁵

Intercourse and its rewards: a Muslim is rewarded for what he spends on his household if he seeks the reward of God in it; if this is so for obligatory spending, it is more so for lawful intercourse, as the book states. ⁶

The courtesies and recommended acts of intercourse: it is recommended to begin with the basmala; to turn away from the qibla out of respect for it; to begin with play, embrace and kissing, so that the woman's desire rises; to take care to reach the satisfaction of both together; to cover oneself with a cloth; to lower the voice and speak little. It is disliked for a man to have intercourse where he can be seen or his sounds heard, and forbidden when the private parts are exposed. ⁶⁷ It is recommended for one who wishes to repeat intercourse to wash his private part and perform wudu', and ghusl is better; the book cites the report that the Prophet ﷺ went round his wives with a single ghusl. ⁷⁸

Speaking about intercourse and disclosing its secrets: the jurists differ. The Hanafis, a Hanbali view which al-Mardawi prefers, and al-Nawawi hold that boasting of intercourse and disclosing what passes between spouses is forbidden, on the report of Abu Sa'id about the worst of people in rank before God and the saying that spreading (such talk) is forbidden. Ibn al-Qayyim, al-Haytami and others count it among the major sins. The school view of the Hanbalis is that the spouses' speaking of what passes between them is disliked, even to a co-wife. ⁸⁹

Impediments to lawful intercourse: there are nine. The jurists agree on six of them, namely menstruation, post-natal bleeding, i'tikaf, fasting, ihram and zihar before its expiation; they differ on three, namely istihada, failure to wash after the end of menstruation, and residence in the abode of war. ⁹

First, menstruation: the jurists agree that intercourse with a menstruating woman in the vagina is forbidden, on the verse of sura al-Baqara (cited by sura only) and the saying that one may do everything except intercourse. ¹⁰ Second, post-natal bleeding: the jurists agree that intercourse in the vagina is forbidden, and that its rules, including washing and expiation, are those of menstruation. ¹⁰

Third, istihada: the jurists differ on whether intercourse with an irregularly bleeding woman is permitted. The majority of Hanafis, Shafi'is and Malikis, and one Hanbali report, permit it, a view reported by Ibn al-Mundhir from Ibn 'Abbas, Sa'id ibn al-Musayyab, al-Hasan, Ata and others, citing that she is pure of menstruation and the case of Hamna bint Jahsh (may God be pleased with her), whose husband Talha had intercourse with her while she bled. ¹⁰

Istihada, the second view, which some jurists hold: intercourse with an irregularly bleeding woman is forbidden, because the blood is blood of menstruation, and the cause of the prohibition, menstruation, is present in her, so the prohibition applies to her. ¹¹

Fourth, i'tikaf. The jurists agree that intercourse during i'tikaf is forbidden and invalidates it, by night or by day, if intentional, on the verse of sura al-Baqara on i'tikaf in the mosque (the detail under i'tikaf). ¹¹

Fifth, fasting. The jurists agree that intentional intercourse by a fasting person in Ramadan is forbidden, invalidates the fast and requires expiation, whether he ejaculates or not, on the report of Abu Hurayra (may God be pleased with him) of the man who had intercourse with his wife while fasting in Ramadan and was given dates to give in charity, which the book quotes. ¹¹¹²

Sixth, ihram. The jurists agree that intercourse by a pilgrim in hajj or umra is forbidden, on the verse of sura al-Baqara, in which 'rafath' is explained as intercourse and the talk that accompanies it. An intercourse before standing at 'Arafat invalidates the pilgrimage, while after the first release it does not; the views differ on the period between standing at 'Arafat and the first release. ¹²

Seventh, zihar. There is no dispute that intercourse with a woman on whom zihar has been pronounced is forbidden before expiation, on the verse of sura al-Mujadila and the report of Ibn 'Abbas of the man who had intercourse before expiating, whom the Prophet told to ask forgiveness and not to repeat it until he had expiated. ¹²

Eighth, a Muslim's intercourse with his wife in the abode of war. The majority of Hanafis, Malikis and Shafi'is hold it disliked, fearing offspring there, since the Muslim is forbidden to settle in the abode of war, citing the saying of the Prophet that he is free of every Muslim who lives among the polytheists, which al-Bukhari judged to be a mursal report. The Hanbalis hold that a Muslim may not have intercourse with his wife in the abode of war except by necessity, and that when necessity arises he must practise withdrawal. ¹²¹³

(b) Forbidden intercourse: its kinds are adultery, sodomy, intercourse with a wife or a non-wife in the anus, with a dead woman, and with an animal. ¹³

First, adultery is forbidden by the consensus of the jurists and is one of the greatest major sins, on the verse of sura al-Isra cited by sura and number. ¹³

Second, sodomy: the jurists agree it is forbidden with the greatest severity and is a major sin; al-Mawardi calls it the most grievous of abominations and notes that no one in the worlds did it before the people of Lot. ¹³

The penalty for sodomy: the jurists give six views, of which the book sets out the first four. The first, held by the Shafi'i and Hanbali school views, by Abu Yusuf, Muhammad, al-Thawri, al-Awza'i and Abu Thawr, is that the penalty for sodomy is that of adultery: a married offender is stoned and an unmarried one is flogged; they cite a report from Abu Musa that when a man comes to a man, both are adulterers, which al-Bayhaqi calls a rejected chain. ¹³¹⁴ The second, held by Abu Hanifa, Hammad ibn Abi Sulayman and al-Hakam, is that there is no hadd but discretionary punishment and imprisonment until death or repentance, and that a repeat offender is killed by the ruler at a second offence, married or not, as policy; the reason given is that the act is not the name of adultery. ¹⁴ The third, held by the Malikis, is that the penalty is stoning in every case, for the active and passive partner, married or not, citing the general wording of the hadith on killing both partners. ¹⁴¹⁵ The fourth, held by al-Shafi'i in one view and by Ishaq ibn Rahawayh, is that the offender is killed by the sword like an apostate, married or not, a view attributed by the book to a number of Companions and Successors. ¹⁵ The fifth and sixth views are not yet read at this point of the scan. ¹⁵

Intercourse with a wife or a female slave in the anus: the book reports this view from several Companions and Successors; al-Mawardi says it is the position of the Companions, most Successors and jurists. Several jurists, Ibn al-Nahhas, al-Haytami and Ibn al-Qayyim among them, state that it is among the major sins. ¹⁶ The jurists hold that there is no hadd for it, because a wife or slave is in some sense a place of enjoyment, which creates a doubt that averts the hadd; the majority hold that discretionary punishment (ta'zir) is due, as the Hanafis, Malikis and Hanbalis state, and the Shafi'is hold that it is due if repeated. ¹⁶ The jurists cite hadiths on the subject, referenced in the book's notes, the reasoning that the anus is not a place made for intercourse, that it is a constant harm, and that it denies the wife her right to enjoyment. ¹⁷¹⁸ Views the book attributes to Ibn 'Umar in one report, Zayd ibn Aslam, Nafi' in one report, some Shafi'is, and Malik in one view, permit it. The scholars replied that the verse's word 'anna' means 'from where', that the explanation by Muhammad ibn Ka'b al-Qurazi is rejected, and that the reports of Ibn 'Umar, Nafi' and Malik denying the permission are the sounder ones; the book records the views without adding its own ruling. ¹⁸¹⁹

Fourth, intercourse with a non-wife in the anus: there is no dispute that it is forbidden and a major sin. There are four views on its penalty: the first, of the Malikis, Hanbalis, Shafi'is in the school view and the two companions of Abu Hanifa, is the hadd for adultery; the second, of Abu Hanifa and one Shafi'i view, is that there is no hadd but discretionary punishment; the third, of the Maliki judge Abu al-Hasan, equates it with sodomy, and Ibn 'Aqil says the hadd of sodomy applies; the fourth, of some Shafi'is, is death by the sword as a hadd. ¹⁹²⁰

Fifth, intercourse with a dead woman: there is no dispute that it is forbidden, and al-Haytami counts it among the major sins. There are two views on the penalty: the first, of the Hanafis, the sounder Shafi'i view and the Hanbali preferred view, that there is no hadd and only discretionary punishment; the second, of the Malikis in the better-known view, the Shafi'is in a view against the sounder, some Hanbalis and al-Awza'i, that the hadd applies. The Malikis exempt a husband who has intercourse with his dead wife from the hadd. ²⁰

Sixth, intercourse with an animal: the jurists agree it is forbidden, citing the general wording of the verse of sura al-Mu'minun and the hadith of Abu Hurayra about the one who has intercourse with an animal; several of the hadiths the book cites are judged weak in their chains in the notes. Several jurists count it among the major sins. ²¹ The jurists differ on the penalty for it in four views; the first, held by Jabir ibn Zayd, al-Hasan ibn Ali (may God be pleased with him), al-Hasan al-Basri, al-Shafi'i and one Ahmad view, is listed here, and the list continues beyond p.17503. ²¹

The penalty for intercourse with an animal, the remaining views: the third is that of al-Zuhri, who holds the lighter of the two hadd penalties applies, one hundred lashes, whether married or not. The fourth, held by the majority of Hanafis, the Shafi'is in the more likely view, the Malikis and the Hanbali school, is that no hadd applies and discretionary punishment is due; this is reported from Ibn 'Abbas, 'Ata', al-Sha'bi, al-Nakha'i, al-Hakam, al-Thawri and Ishaq. The Hanafis say the ruler may kill the offender who repeats it, al-Bayri judges a second offence to warrant death, and the Hanbalis press the discretionary punishment hard. The majority argue that the act is wrong, to be changed by the hand, and that no report establishes a hadd. ²²

A woman who lets an animal such as a dog or monkey approach her is treated as one who has intercourse with an animal, according to the Hanafis, Shafi'is, Malikis and Hanbalis. ²²

Killing the animal used: three views. The Hanafis, Malikis and the sounder Shafi'i view do not require it, because the hadith ordering its killing is weak and because the Prophet forbade killing animals except for food. The Hanafis recommend slaughtering it and burning it if it is not eaten. The Hanbalis and a Shafi'i view require killing it in every case, citing the hadith 'whoever has intercourse with an animal, kill him and kill the animal with him'. A third view kills it only when the offender owns it; the book attributes this to al-Tahawi. ²²²³ If the animal belongs to another, the jurists differ on liability: the Hanbalis and the Shafi'i view that requires killing hold the offender liable, while the Hanafis say the owner is asked to hand it over for its value and then it is slaughtered. ²³

Eating an animal used in this way after slaughter: three views. The Hanbali school view and the two companions of Abu Hanifa, with a Shafi'i view, forbid it; one Ahmad report disapproves without forbidding it; Abu Hanifa, the Malikis and the Shafi'i school view permit it without disapproval, citing the verse of sura al-Ma'ida that permits grazing animals. ²⁴

Intercourse by mistake (wat' bi-shubha): the act is forbidden but does not bring the hadd, because a doubt removes the intent to commit adultery; the types of doubt are treated under their own heading. ²⁴

Rules of intercourse. The wife's right over her husband: she has a right that he have intercourse with her and satisfy her desire, as the report of Abd Allah ibn Amr shows: 'your body has a right over you, and your wife has a right over you', and the saying to Abu al-Darda'. ²⁴²⁵ The jurists give four views on the extent and duty of this right. The Hanafis and a Shafi'i view hold that the wife may ask for intercourse, and that a husband must comply once by judgement, while more is owed before God as a matter of good companionship; the Shafi'is hold no duty and no sin in leaving it, though it is recommended not to leave a wife without intercourse out of protection for her. ²⁵ The remaining views are not complete in these pages. ²⁵

Measure of the wife's right to intercourse (the remaining views): the Malikis, in the more likely view, hold that a wife is due one night in every four; Abu al-Hasan al-Saghir reports from Abu Imran views on the least that may be enforced, one night in four, or one night in three, and 'Umar decided once in each purity because the husband makes her pregnant. ²⁶ The fourth view, of the Hanbali school, is that the husband must have intercourse with his wife at least once in four months if he has no excuse; they argue that intercourse is a right of both spouses, and that a wife's consent is needed for withdrawal. ²⁶ Ibn Taymiyya and Ibn al-Qayyim hold that intercourse must be in accordance with custom, in proportion to the wife's need and the husband's ability, with no fixed number; the book notes that some hold he must satisfy her as he must feed her, which Ibn Taymiyya preferred. ²⁶²⁷ If the spouses dispute the right, the judge sets it by custom and their circumstances; Ibn Taymiyya holds that harm to the wife from its withholding permits dissolution in every case. ²⁷

The husband's right over his wife: the husband may ask his wife for intercourse whenever he wishes, except where a lawful impediment exists, such as menstruation, post-natal bleeding, zihar or ihram; when the impediment is absent she must comply. The jurists al-Dhahabi, al-Rafi'i, al-Nawawi, Ibn al-Rif'a and al-Haytami count a wife's refusal without excuse as a form of disobedience and a major sin, citing the strong warnings in the hadith. ²⁷²⁸ The husband need not comply when his wife asks, unless he intends to harm her, in which case it is forbidden. ²⁸

The wife's right to separation when the husband is unable to have intercourse (impotence, castration, or sexual incapacity): the jurists distinguish incapacity that exists at the contract from incapacity arising after consummation, and a wife who knew of the defect from one who did not. The detail is under divorce. ²⁸

The husband's right to annul the marriage when the wife has a defect that prevents intercourse (such as an occluded passage or a horn-like growth): the jurists differ on two views; detail under its heading. ²⁸

Withholding intercourse by oath (iyla) or by zihar. Iyla: there is no dispute that the husband who swears not to have intercourse has four months, the period set in sura al-Baqara. If he persists until four months pass, the wife may take the matter to the judge, who orders him to return, then to divorce; if he refuses the judge divorces on his behalf, the view of the majority of Shafi'is, Malikis and Hanbalis; the Hanafis say divorce takes effect on the lapse of four months without the judge. ²⁸²⁹ Zihar: the majority hold intercourse with a wife on whom zihar has been pronounced forbidden before expiation; a Hanbali report permits it where the expiation is by feeding; the details are under zihar. ²⁹

Zihar, continued: the wife may take the matter to the judge if the husband refuses expiation; the judge orders him to expiate, and if he refuses, compels him by disciplinary means until he expiates or divorces; this is the Hanafi view, since the husband has harmed her by making her unlawful to him. ³⁰ The Malikis distinguish a husband unable to expiate, who is divorced by the judge, from one able to do so, who is granted four months as in iyla, after which he is told to divorce or expiate. The Hanbalis say a zihar husband is not ordered to resume intercourse, since it is forbidden before expiation, and is given time to free a slave, feed the poor or fast, according to his means. ³⁰

The wife's right to withhold herself until she receives her dower: the jurists agree that once the husband has handed over the dower she must allow him access when he asks, with no lawful impediment; she may not refuse if the whole dower is deferred, or if the deferred part is the larger, because her acceptance of the deferral is acceptance of handing herself over. The Hanafis limit this to a condition that intercourse occur before the term, to which she agreed. ³¹ For a prompt dower, the majority of Hanafis, Shafi'is, Malikis and Hanbalis hold that she may withhold herself until she receives the prompt portion, since the dower is a return for the womb as the price is for the goods; Ibn al-Mundhir reports consensus on this. ³¹

The effect of intercourse on the right to withhold after she has allowed access: two views. The first, of Abu Hanifa and Ibn Hamid among the Hanbalis, is that she may still withhold until she is paid, since the contract covers each act of intercourse; the second, of Abu Yusuf, Muhammad, the Shafi'is, Malikis and the Hanbali school, is that she may not, because her handing herself over was consent to the dower remaining a debt. ³¹³²

When the deferred dower falls due before the wife hands herself over: two views. The first, of the preferred Hanafi view, the sounder Shafi'i view and the Hanbalis, is that she may not withhold, since the right of retention fell away by her consent to the deferral. The second, of one Shafi'i view, the Malikis and Abu Yusuf, is that she may withhold, since it is now like a prompt dower; Abu Yusuf limits this to cases in which the husband did not stipulate intercourse before the term. ³²³³

The dispute over who starts the handing over: the Hanafis and Malikis hold that the husband must hand over first, since the husband's right is fixed by the contract while the wife's right to the dower is fixed by receiving it; Malik disliked the wife's allowing access before receiving a quarter dinar, as a right of God. The Hanbalis and a Shafi'i view compel the husband first, then the wife. The preferred Shafi'i view has both compelled together, by deposit of the dower with a trustee who is neither party's agent. A third Shafi'i view compels neither, since the rights are equal. ³³

Stipulating in the marriage contract that intercourse will not be lawful, or that it will not occur: all agree the stipulation is void, but differ on its effect on the contract. The majority of Shafi'is, Malikis and Hanbalis hold both the stipulation and the contract void, because it defeats the purpose of the contract. The Hanafis hold the stipulation invalid but the contract valid, since a marriage is not voided by an invalid condition. ³⁴ For the stipulation that intercourse will not occur, there are three views: the Hanafis and Hanbalis hold the contract valid and the condition void; the Malikis hold both void, and among them the preferred view allows annulment before consummation and not after, with the condition falling away; the Shafi'is hold the contract void if the condition came from the wife, but harmless if from the husband, since intercourse is his right. ³⁴³⁵

Withdrawal (azl), meaning withdrawing before ejaculation into the womb: the majority allow it for a master with his slave-woman, whether or not she consents, the consensus being reported by al-Qarafi; the views on withdrawal from a free wife are detailed under their own heading. ³⁵

Nursing intercourse (ghila): all agree it is permitted, on the report of Judhama bint Wahb in which the Prophet intended to forbid it, then mentioned that Rome and Persia did it without harm to their children. ³⁵

Intercourse with a pregnant woman: some jurists disliked it, citing the saying 'do not kill your children secretly'; the majority permit it, citing the report of the man who asked the Prophet about withdrawal and was told that if it is needed then there is no harm, as it did no harm to Persia and Rome. ³⁵³⁶

The effects of intercourse: (a) it confirms the full named dower, according to the Hanafis, Shafi'is, Malikis and Hanbalis, since intercourse is the fulfilment of the purpose; (b) it establishes the waiting period after divorce, by the verse of sura al-Ahzab; (c) it is the act that makes an oath of iyla void; (d) in a valid marriage, intercourse of the kind that requires ghusl is a condition of ihsan for adultery; (e) it restores a revocable divorce, in the view of the Hanafis, Hanbalis and Malikis, if the husband intends to take the wife back, against the Shafi'is; (f) its effect on the permissibility of divorce, a division detailed under divorce. ³⁶³⁷

The effect of intercourse on divorce, continued: a lawful divorce is pronounced on a wife in a state of purity without intercourse during that purity, or when she is pregnant and her pregnancy is evident. An unlawful divorce is one pronounced during menstruation, or in the purity in which intercourse took place; for a wife not yet consummated, divorce during menstruation or purity is lawful. ³⁸ On whether a bid'a divorce takes effect: the majority of Hanafis, Shafi'is, Malikis and Hanbalis hold that it takes effect, and the husband is sinful, citing Ibn 'Umar's divorce of his wife during menstruation, after which the Prophet ordered him to take her back. Ibn Taymiyya, Ibn al-Qayyim, Ibn Hazm and al-Shawkani, and a view attributed to Ibn 'Umar and Tawus, hold that it does not take effect, because it contradicts the Prophet's command. ³⁸³⁹

The effect of intercourse on the hadd for adultery: the intercourse that triggers the hadd is the insertion of at least the head of a sane, adult male's member into a desirable vagina that is not the man's own property or subject to a doubt in the land of Islam; detail under adultery. ³⁹

The effect of intercourse on ghusl: the meeting of the two circumcised parts (the head passing into the vagina) requires ghusl for man and woman, on the report of 'A'isha, and the report of Abu Hurayra adds 'even if he does not ejaculate'. ³⁹

The effect of intercourse on a woman divorced three times: she may not be lawful to her first husband until she marries another husband, on the verse of sura al-Baqara; the majority hold that she is not lawful to the first until the second husband has intercourse with her, with the meeting of the circumcised parts, even without ejaculation; Sa'id ibn al-Musayyab holds that the first may remarry her if the second marriage is sound and not intended to make her lawful. ³⁹⁴⁰

The effect of intercourse on marriage affinity: there is no dispute that the contract with a daughter makes her mother, however high, unlawful for ever, by the contract alone, whether or not intercourse took place, and likewise sons' and fathers' wives. A stepdaughter is forbidden by two conditions, the contract with her mother and intercourse with the mother; without intercourse, the prohibition does not hold. ⁴⁰

The effect of intercourse on expiations: (1) intercourse with a menstruating wife. Four views: the Hanafis and the sounder Shafi'i view require no expiation, only a recommended alms of a dinar or half a dinar; the Hanbalis and one Shafi'i view require a dinar or half a dinar at the choice of the husband, on a report from Ibn 'Abbas; the Malikis, al-Thawri, al-Layth and one Ahmad report require only repentance and seeking forgiveness; al-Hasan al-Basri and Sa'id ibn al-Musayyab require the expiation for intercourse in Ramadan. (2) Intercourse while fasting in Ramadan: most scholars require expiation and making up the day, whether or not there is ejaculation, on the report of Abu Hurayra of the man who had intercourse with his wife in Ramadan. ⁴⁰⁴¹

Intercourse during the pilgrimage: the jurists agree that a pilgrim who has intercourse before standing at 'Arafat invalidates his hajj and must give a sacrifice; the Hanafis require a sheep and the Shafi'is, Malikis and Hanbalis a camel. Intercourse after standing and before the first release requires a camel by agreement; after the first release the Hanafis, Shafi'is and Hanbalis require a sheep and Malik a camel. ⁴²

Intercourse and the fast: the jurists agree that intercourse by one who fasts in Ramadan invalidates the fast, whether or not he ejaculates. If it was forgotten, the majority of Hanafis, Shafi'is, one Ahmad report, al-Thawri, al-Hasan and Mujahid hold the fast is not invalidated; the Malikis, the school view of the Hanbalis and Ata' hold it is invalidated like an intentional act. ⁴²⁴³

Intercourse and the pilgrimage: the jurists agree that intercourse before standing at 'Arafat invalidates the pilgrimage, which must be completed as an invalid one and made up later, and that it does not invalidate it after standing and the first release. Between standing and the first release, the Shafi'is, Malikis and Hanbalis hold it invalidates the pilgrimage, while the Hanafis say it does not. ⁴³

Treading on the mushaf: there is no dispute that a Muslim who treads on it to show contempt becomes an apostate; under compulsion or necessity he does not. ⁴³

Treading on graves: the grave is to be respected, so treading on it or sitting on it is disliked, according to the majority, on the report of 'Uqba ibn 'Amir and the words attributed to Ibn Mas'ud. The Shafi'is and Hanbalis dislike it except out of necessity; walking among graves is not disliked for the Shafi'is, while the Hanbalis dislike it in shoes but not in boots. The Hanafis dislike sitting on it except out of necessity. The Malikis dislike it under conditions: the grave is raised, the path is beside it, and some of the bones are presumed to remain. ⁴³⁴⁴

Animals treading with a foot: the Hanafis, Malikis, Shafi'is and Hanbalis agree that what an animal tramples with its hoof, head or foot in its course is a liability for whoever is with it, rider, leader or driver, when the damage can be attributed to his fault or negligence; if not, there is no liability, on the saying 'the animal's wound is unpunished'. ⁴⁴⁴⁵ Al-Shafi'i holds the leader, driver and rider liable for what it strikes with hand, mouth, foot or tail, and that the one who makes it trample something is the one liable; al-Nawawi notes that a skittish animal may not be ridden in markets. ⁴⁵