Thread by @IbneKhan01

ĤANAFĪ FIQH: KAFĀ’AH

Mawlā Álī ibn Abu Ţālib narrates that RasūlAllāh ﷺ said unto him:

❝Yā Álī! Three are not to be delayed: Şalāh when it is due, the Janāzah when it is presented, and [marriage] for the single woman when a Kufuw is found.❞

[Tirmidhī]

https://twitter.com/Osman567_/status/1345806143705251841

Who is a Kufuw?

Alahazrat Imām Aĥmad Riđā Khān al-Ĥanafī al-Qādirī al-Baraylawī [1272-1340 AH / 1856-1921 CE] writes, as recorded in Fatāwā al-Riđawiyyah:

❝The meaning of Kufuw in Sharīáh is that he not be so much inferior in terms of religion, or lineage, or occupation,

or behaviour, any matter that nikāh of that woman with him would be a cause of shame and disgrace for the Walīs of the woman.❞

Şadru’sh Sharīáh Mawlānā Amjad Álī al-Ĥanafī al-Aáżamī [1300-1367 AH / 1882-1948 CE] writes in Bahār e Sharīát:

❝The meaning of Kufuw is that the man not be so much inferior to the woman in terms of lineage and the like, that nikāh with him would bring shame

and disgrace to her Walīs. Kafā’at is only considered with regard to the man, the woman, even if she be of a low status, there is no consideration of that.❞

Malik al-Úlama Mawlānā Sayyid Żafaruddīn al-Ĥanafī al-Bihārī [d. 1382 AH / 1962 CE] writes in Fatāwā Malik al-Úlama:

❝In colloquial language, anyone of the same qawm is referred to as Kufuw and in Sharīáh, a Kufuw is he who is not so much inferior [to a woman] in lineage,

religion, occupation, behaviour, in any matter that nikāh with him would customarily be a cause of shame and disgrace for the woman’s Walīs.❞

When it comes to the issue of the validity of marriage with a Kufuw or a non-Kufuw, then this differs depending on the female.

First, we shall look at the case of a free and sane bālighah, one who has reached puberty.

The nikāh of such a woman with a Kufuw without the permission of her Walī is valid and binding, and her Walī has no right to separate them or annul the nikāh.

Imām Abu’l Ĥusayn Aĥmad al-Qudūrī al-Ĥanafī [362-428 AH / 973-1037 CE] writes in his Mukhtaşar:

❝The nikāh of a free, bālighah, and sane woman is concluded with her consent, even if a Walī does not conclude it [for her], according to Abū Ĥanīfah, may Allāh have mercy upon him,

be she a virgin [bikr] or a previously-married woman who had consummated her marriage [thayyib].❞

It is in Fatāwā al-Hindiyyah:

❝The nikāh of a free mukallafah [sane and bālighah] is valid without a Walī.❞

Állāmah Muĥammad Álāuddīn al-Ĥaşkafī al-Ĥanafī [1025-1028 AH / 1616-1677 CE] writes in Durr al-Mukhtār:

❝The nikāh of a free mukallafah [sane and bālighah] is valid without the approval of the Walī.❞

It is in Fatāwā al-Riđawiyyah:

❝If he is Kufuw in this [aforementioned] manner, then the nikāh of the free mukallafah with him, by her own pleasing without permission of the Walī, is valid and binding. The Walī can never have it annulled. If they do her nikāh to someone else,

without a divorce, it shall be void, and intimacy in that is pure zinā, the consequence of which shall be upon the one arranging the marriage.❞

As for the nikāh of a free and sane bālighah with a non-Kufuw, then this requires the explicit agreement of her Walī,

as it is the right of her Walīs that she not marry a non-Kufuw since this would be cause of shame and disgrace for them. Her nikāh with such a man is invalid and the Walī has right to have them separated.

It is in Durr al-Mukhtār:

❝The verdict regarding a non-Kufuw is that it

is essentially impermissible.❞

It is in Fatāwā al-Riđawiyyah:

❝If he is not Kufuw in terms of the meaning of the Sharīáh, even if he is from the same qawm, which is called Kufuw among the common people, for example he is so much inferior in religion, or occupation,

or behaviour that the nikāh of that woman with him would be a cause for disgrace and dishonour for the Walī of the woman, then the nikāh of a mukallafah woman without the permission of her Walī is void and rejected.❞

Secondly, there is the case of the nā-bālighah.

In her case, her nikāh is invalid without a Walī. Her nikāh cannot be done with a non-Kufuw by any of her Walīs except her father or grandfather. If any other Walī does so then it is invalid. The father or grandfather may only do this once, it is invalid if done again.

It is in Fatāwā al-Riđawiyyah:

❝If she is a nā-bālighah, and her nikāh is done by a Walī other than her father or grandfather, even if it be her full brother, or paternal uncle, or mother, to such a person [non-Kufuw], then that will also be void and rejected.

Even the father and grandfather can only do such a nikāh once, if they do such a nikāh again for any daughter with such a person [non-Kufuw] then their doing so will also be void.❞

It is in Bahār e Sharīát:

❝Besides the father and grandfather, if any other Walī does the nikāh of a nā-bāligh boy to a non-Kufuw [female], then the nikāh is not valid. If a bāligh wants to do his nikāh himself, then he can do so with a non-Kufuw woman because the Kafā’at of

the woman is not considered in this case. For a nā-bāligh, Kafā’at is considered from both sides [both the male and the female].❞

Having discussed that, let us now look to what criteria must be met for a man to be Kufuw.

It is in Bahār e Sharīát:

❝In Kafā’at, six things are considered:

1) Lineage, 2) Islām, 3) Occupation, 4) Freedom, 5) Piety, 6) Wealth.❞

1) Lineage

Kufuw in lineage means that the man’s lineage should be either higher or equal to the woman’s lineage.

It must not be so inferior that it causes shame and disgrace for the woman’s Walīs.

Qāđī Khān Ĥasan ibn Manşūr al-Uzjandī al-Ĥanafī [d. 592 AH / 1196 CE] writes in his Fatāwā:

❝Quraysh are Kufuw for each other, even a Qurayshī that is not a Hāshimī is Kufuw for a Hāshimī.

Non-Qurayshīs from among the Arabs are not Kufuw for a Qurayshī. The Arabs are Kufuw for each other, the Ansārīs and Muhājirīs are equal in this. Non-Arabs are not Kufuw for an Arab.❞

It is in Bahār e Sharīát:

❝However many families are in Quraysh, they are all Kufuw.

To the extent that a non-Hāshimī Qurayshī is Kufuw for a Hāshimī, and no non-Qurayshī is Kufuw for a Qurayshī. Besides Quraysh, all Arab qawms [tribes] are Kufuw for each other. Ansār and Muhājirīn are equal in this. One with a non-Arab lineage is not Kufuw for an Arab,

except for an áālim e dīn, as his nobility is superior than the nobility of lineage.❞

It is in Fatāwā al-Riđawiyyah:

❝Sayyids can do nikāh with a woman of any qawm, and the nikāh of a Sayyidānī can take place with any tribe of Quraysh, whether Álawī, or Ábbāsī, or Jáfarī,

or Şiddīqī, or Fārūqī, or Úthmānī, or Umawī. As for non-Quraysh, such as Ansārī, or Mughal, or Pathan, the one who is áālim e dīn, respected by Muslimīn from among them, nikāh can absolutely be done with him, otherwise, if a Sayyidānī is nā-bālighah and the Walī who does her

nikāh with a non-Qurayshī is not her father or grandfather, then the nikāh will be void, even if it is done by her paternal uncle or full brother. If a father, a grandfather have already done such a nikāh for any of their daughters, then even by their doing so it shall not take

place. If she is bālighah and she has no Walī, then she can do her nikāh with that non-Qurayshī with her own choice. If she has a Walī, meaning father, grandfather, great grandfather, any man from their offspring and lineage, and before the nikāh he explicitly gives permission

for the nikāh, after knowing that person is a non-Qurayshī, then it will be permissible. Otherwise, the doing of a bālighah [without such permission] will be void also.❞

The exception to this is an áālim.

It is in Fatāwā al-Riđawiyyah:

❝Fatāwā al-Khayriyyah states that Ibn Ábbās said, ‘Scholars have seven hundred higher ranks than common believers and there is a journey of five hundred years between two ranks.’ There is a consensus and all Fiqh books agree that an áālim is

superior to a Qurayshī. Allāh did not differentiate between a Qurayshī and non-Qurayshī in His Book: Are the knowledgeable and the ignorant equal?

I say: We will restrict the definition of a scholar to a practising Islamic áālim because he is a true áālim.

As for the people of misguidance, then they are worse than the ignorant ones.❞

He further writes:

❝Then I say: It is also essential that the scholar must not commonly be perceived as being extremely inferior, for example he must not be a weaver [jūlāhā], barber [nayī],

cobbler [mochī], leather dyer, and the like, because it depends upon the fact that he is not considered inferior in the custom of the region, as akābir úlamā have clarified.

Muĥaqqiq ála’l Itlāq said in Fatĥ’ul Qadīr: The people of custom considering someone to be inferior,

is a determining factor; therefore the verdict will depend upon it.❞

He further writes:

❝The shame of a weaver, barber and cobbler will not end due to knowledge. However, if these people left these occupations a long time ago and are respected in society and are

revered and honoured in the hearts and minds of common people and marrying them is not shameful for the daughters of respected people, then it is another matter.❞

Faqīh e Millat Muftī Jalāluddīn Aĥmad Amjadī al-Ĥanafī [1352-1421 AH / 1933-2001 CE] writes in Fatāwā Fayd al-Rasūl:

❝Kafā’at depends upon úrf. If in the úrf there, for a daughter of a Pathan to do nikāh with a Ghanchi, meaning a Muslim Teli, is a cause of shame for her parents

then there is no need to annul the nikāh, as according to the issued verdict, the nikāh did not even take place, to the extent that if after the nikāh the Walī agrees, then even in that case the nikāh will not be valid, because in order for nikāh to a non-Kufuw be valid,

it is necessary that the Walī explicitly express his happiness prior to the nikāh.❞

2) Islām

A convert man is not Kufuw for a woman whose father is a Muslim, and a man whose father is a convert is not Kufuw for a woman whose paternal grandfather is a Muslim.

This is only among non-Arabs.

It is in Fatāwā al-Khāniyyah:

❝The one who converts to Islām himself and does not have a Muslim father, he is not Kufuw for the one who has a Muslim father. The one who has a Muslim father is not Kufuw for the one who has a Muslim grandfather.

The one who has a Muslim grandfather is Kufuw for one who has has ten generations of Muslim forefathers.❞

It is in Durr al-Mukhtār:

❝As for the non-Arabs, then freedom and Islām are considered. Thus, the one who is a Muslim himself or a freed slave, he is not Kufuw for the

woman whose father is a Muslim or free...and the one whose father is Muslim or free is not Kufuw for the one whose grandfather is so. The grandfather is like all forefathers because the lineage is completed by the grandfather.❞

It is in Bahār e Sharīát:

❝One who has become Musalmān himself, meaning his father and grandfather were not Musalmāns, is not Kufuw for the one whose father is Musalmān. One whose father is Musalmān but grandfather is not Musalmān, cannot be Kufuw for the one whose grandfather

is also Musalmān. If anyone’s father and grandfather are Musalmān, then he is Kufuw for the one with more than two Musalmān generations. However, the Islām of fathers and grandfathers is considered only among non-Arabs. As for Arabs, whether one has embraced Islām or his father

and grandfather were also Musalmān, all are equal.❞

3) Occupation

Kufuw in occupation means that the man must not have such an occupation that is considered to be inferior and cause the woman’s Walīs shame.

It in in Bahār e Sharīát:

❝Those whose occupations are considered

lowly are not Kufuw for women whose family occupations are respectable. For example, shoe-makers (cobblers), tanners, horse-keepers, and shepherds are not Kufuw for cloth-merchants, perfume-sellers, or businessmen. If he does not make shoes himself, rather, he owns a factory and

employs other people to do this work for him, or if he is a shop-owner who buys and sells ready-made shoes, then he is Kufuw for a businessman etc. The same applies to other occupations too.❞

4) Freedom

It is in Bahār e Sharīát:

❝A slave is not Kufuw for a free woman,

nor is the one who was freed for a woman originally free. The one whose father was freed is not Kufuw for the one whose grandfather was freed, and the one whose grandfather was freed is Kufuw for the one who has been free for many generations.❞

5) Piety

Piety means in terms of Taqwā, good qualities, and correct
beliefs.

It is in Durr al-Mukhtār:

❝A Fāsiq is not Kufuw for a pious woman, or the daughter of a pious man.❞

It is in Bahār e Sharīát:

❝A Fāsiq is not Kufuw for a pious man’s daughter, even if she herself

is not pious. Obviously, a deviant belief is much worse than a sin. Therefore, a deviant whose corrupt creed has not reached the extent of Kufr cannot be Kufuw for a Sunni woman. That deviant whose deviant creed has reached Kufr then nikāh with him is invalid because he is not

even a Muslim, let alone be Kufuw.❞

6) Wealth

It is in Bahār e Sharīát:

❝Kafā’at in wealth means that the man should have enough wealth that he be capable of paying Mahr e Muájjal and nafaqah. If he does not work, he must be able to provide one month’s nafaqah, otherwise

his daily earnings must be enough to provide for the woman’s daily needs. He is not required to be as wealthy as her.❞

Kufuw is required only at the time of marriage. The husband’s later change of character does not affect their marriage.

It is in Durr al-Mukhtār:

❝Kufuw is required at the beginning of the nikāh. If Kufuw exists at that time but ends later on, this causes no effect, just as at the time of nikāh he was Kufuw due to being pious, and after he became a Fāsiq, then the nikāh will not be annulled.❞

It is in Bahār e Sharīát:

❝At the time of nikāh he was Kufuw, afterwards the Kafā’at ended, then the nikāh shall not be annulled. If someone’s occupation was lowly at first, due to which he was not Kufuw, and he has left that occupation, if the shame is still present,

then he is still not Kufuw, otherwise he is.❞

It is in Bahār e Sharīát:

❝Someone hid his lineage and informed of a different lineage, afterwards it was discovered, then if his lineage is so inferior that he is not Kufuw, then the woman and her Walīs have the right to annul.

If it is not so inferior that he is not a Kufuw, then the Walīs do not have the right, the woman has the right. If his lineage is superior to what he informed, then none has the right.❞

It is in Bahār e Sharīát:

❝If a non-Sharīf does nikāh with a woman of unknown lineage,

afterwards a Qurayshī makes the claim that this is my daughter, and the Qādī has given the verdict of her being his daughter, then that person has the choice to annul the nikāh.❞

Thus it is established that a woman does not have the right to do nikāh with any man she wishes.

Rather, if she wishes to do so with a non-Kufuw, she must receive full and explicit permission of her Walī prior to the nikāh, with the condition that he knows the man is non-Kufuw.

The Walī of the woman has the right to refuse if he is a non-Kufuw.

This is because Kafā’ah is his right.

It is in Durr al-Mukhtār:

❝Kafā’ah is the right of the Walī, not her right.❞