Secondary Issues Related to Istitaah
Women and the
Are there any additional
conditions for women with regard to performance of the Hajj? All the five
schools agree that it is not required that a woman should obtain the husband's
permission for the obligatory Hajj duty, nor may he prevent her from
undertaking it. However, there is a difference of opinion about whether the
Hajj is obligatory upon her or not if she does not find a husband or a mahram to accompany her
on the journey. According to the Imamiyyah, Maliki and Shafii schools, the mahram's company or that of the husband
is not at all a condition, regardless of whether she is young or old, married
or unmarried; since the mahram's company
is a means of her safety, not an end in itself. Accordingly, we have two cases:
either she feels confident of her security on the journey, or she doesn't. In
the first case, the Hajj is obligatory upon her and the mahram's company is irrelevant. In the second case, she lacks the
requirement of istita'ah, in spite of
the mahram's company.
Accordingly, there is no
essential difference between a man and a woman in this respect.
According to the Hanbali and
Hanafi schools, the company of the husband or mahram isa provision for
the woman's Hajj, even if she were old. It is not permissible for her to
perform the Hajj without his company. The Hanafi school further stipulates the
condition that her location should be at a distance of three days' journey from
Al‑Mughni, a text of Hanbali fiqh, states: ."If a person
bequeaths money to another, it is not binding upon him to accept it, and it
does not make the recipient mustati (possessing istita'ah), irrespective
of whether the bequeather is a relative or a stranger, regardless of whether
the bequest suffices for the expenses of the journey and food. According to al‑Shafii,
if the bequest is made by one's son, enough to enable him to undertake the Hajj
journey, the Hajj becomes obligatory. This, because it enables him to perform
the Hajj without having to bear a stranger's favour or without any accompanying
encumbrance or harm.
According to the Imamiyyah
school, if the bequest is an unconditional gift made without the provision of
performing the Hajj by the recipient, the Hajj is not binding, irrespective of
who makes the bequest. But if the bequest is made with the condition that one
perform the Hajj, the acceptance of the bequest is binding and may not be
rejected, even if the bequest is made by a stranger; since it makes him mustati to undertake the pilgrimage.
What if one has only enough money
either to get married or to perform the Hajj? Which of them is prior? The
Hanafi text Fath al‑qadir (vol. II, "Bab al‑Hajj")mentions this question being put to Abu Hanifah, who, in his reply,
considered that priority lies with the Hajj. The generality (itlaq)of this answer in which he gives priority to the Hajj, taking into
consideration that marriage is obligatory under certain conditions, allows us
to conclude that for Abu Hanifah delay in Hajj is not permissible.
According to the Shafi'i, Hanbali
and Imamiyyah scholars, marriage has priority if there is likelihood of
distress (haraj)or difficulty (mashaqqah)in refraining from marriage. In that
case priority does not lie with the Hajj. (Kifayat
al‑'akhbar, al‑Mughni, al‑Urwat al‑wuthqa)
Khums and Zakat
Payment of the khums and zakat has priority over the Hajj. The condition of istita'ah is not realized until both are
paid off, like other kinds of debts.
Istita'ah by Chance
If someone travels to a place in
the vicinity of the holy city of Mecca, on business or for some other purpose,
and his stay continues until the Hajj season, and if it is possible for him to
reach the Holy Ka'bah, he thereby becomes mustati. And if he were to return home without performing the Hajj, by consensus
of all the schools, he is not relieved of the obligation.
 Mahram is a male
relation with whom marriage is not permissible; viz; father, grandfathers,
sons, grandsons, brothers, sons and grandsons of one's sister or brother, etc.