Is it permissible for the husband to see his wife's face after she dies

[Mansy]

Assalamualaikum. In the name of AllÁh, all-Merciful, most Merciful. In recent times vociferous echoes can be heard from some quarters of the Muslim population claiming the insensitive that a man is not allowed to see his wife after she dies. The basis for this claim hinges on nothing but a rigid play on technicalities i.e. with the wife’s demise the marital tie is severed (inqiÔÁÝ al-nikÁÎ) and the husband and wife become like strangers to each other. Ironically, this view is being passed off as an authoritative opinion of the ÎanafÐ madhdhab, the largest sunnÐ legal school of thought. However insensitive this may seem, this is not the preferred position in the ÎanafÐ madhdhab. On the contrary the preferred and most authentic position (muftÁ bihÐ and aÒaÎ) in the ÎanafÐ madhdhab is that a person is allowed to see his wife but he is not allowed to bathe her or touch her (he can only touch her if he is wearing gloves or any other material which inhibits direct skin to skin contact).

please see attached document for the full article. Comments and criticisms welcome as always.
wassalam
Mansur

[SA7]

for this. Brother, on page 8 you say:

The Hanafi scholars have provided different explanations to these hadiths on the basis of which they do not accept them as proof.

You said this is covered in "Maulana Ashraf Ali Thanawi’s Imdad al-Fatawa for a detailed response. Thanawi, Imdad al-Fatawa, ed. Mufti Muhammad Shafi, 4th edn. (Karachi: Maktaba Darul Uloom Karachi, 1993), 1:488-492.

Is this in Arabic and available online?

This is also covered on page 132 of the English translation of Imam al-Shaybani's Kitab al-Athar:

Section 67.

229. Muhammad said, "Abu Hanifah informed us from Hammad that Ibrahim said concerning a woman who dies among a group of men, 'Her husband should wash her, and similarly if a man dies among a group of women, his wife should wash him.' Abu Hanifah said, 'It is not permitted for a man to wash his deceased wife.'"

Muhammad said, "We adhere to the verdict of Abu Hanifah; the man does not have to observe the iddah period [on being widowed], so how could he wash his wife when it is permissible for him to marry her sister, or even to marry her daughter if he had not consummated the marriage with her mother?"

It's not that the position is wrong, I have found the Hanafi madhab to be more correct than the others in terms of their methodology on multiple issues so Allahu Alam, but it's just the way that the subject is talked about. It seems very mechanical and insensitive. The legalistic tone and the reasoning turns me off and the rigidity and legalization of human feelings.

[Mansy]

Jazakallah for this brother. Yes this fatwa in the Imdad is in Arabic. I don't know if it can be found online. As far as what you have mentioned regarding the hanafi position, I don't disagree with you, however the point that I was trying to make is that it is not based on any strong proofs from the quran and sunna (qati' al-thubut, qat'i al-dalala), rather it is based on an incomple analogy (qiyas ma'a al-faariq) between divorce and death. Take care
wassalam
Mansur

[Abu Shayba]

Although I am not qualified to issue or verdict or perhaps even proffer an opinion, as a prospective () talib 'ilm I would like to offer some thoughts on your article and suggest an alternative reading of the texts.

There are number of minor points which I would like to address and also the central issue of permissibility of looking.

The first point I think that needs to be critically understood is that the face and hands of a woman are not awra even though it is mandatory for her to cover her face outside her home. This point is central to the discourse.

In understanding the Hanafi texts the key is to appreciate the systematic consistency that runs through every sentence no matter how disparate its provenance or substance.

Lets now look at the ibarat of the Fuqaha and try to see just what is being said.

Imam Sarakhsi and Imam Kasani made the following statement:
فلا يبقى حل المس والنظر كما لو طلقها قبل الدخول

The question is what are they referring to when they say that it is not permitted to look at her. I would contend that they mean her naked body and not her face. Later on in their respective compendia the jurists go on to say:

وإن كان أجنبيا يممها بخرقة يلفها على كفه ويعرض وجهه عن ذراعيها دون وجهها لأن في حالة حياتها ما كان للأجنبي أن ينظر إلى ذراعيها فكذلك بعد الموت.(Sarakhsi, Mabsut,vol. 1, pt. 2, 115).

وإن لم يكن محرما لها فمع الخرقة يلفها لما مر ويعرض وجهه عن ذراعيها لأن في حالة الحياة ما كان للأجنبي أن ينظر إلى ذراعيها فكذلك بعد الموت ولا بأس أن ينظر إلى وجهها كما في حالة الحياة (Kasani, Bada'i', dar al-ma'rifa, vol. 1, 504)

Now it is clear from these statements that they permit the ajnabi to see the face of the dead women and because the husband is mulhaq with them he is also permitted to see her face. The key point being that the face is not awra as explained earlier. This is explained by Imam Jassas in his tafsir Ahkam al-Qur'an. (vol. 5, 172-3).

It necessarily follows then that for the husband to see the face of his wife is not an issue.

Note Mufti Muhammad's Fatwa:

In conclusion, it is permitted for a man and a woman to see their spouse’s face after death and before burial.

Now what needs to be assessed is whether the other scholars allowed the husband to see more than the face or not.

I would suggest that the general statements of the Hanafi Ulama refer to the husband looking at her face and not her body.

Imam Haskafi's text is as follows:
ويمنع زوجها من غسلها ومسها لا من النظر إليها على الأصح

In the Radd al-Muhtar Allama Ibn Abidin explain the first part of this sentence (ويمنع زوجها) with the following critically important point:

أشار إلى ما في البحر من أن شرط الغاسل أن يحل له النظر إلى المغسول فلا يغسل الرجل المرأه وبالعكس

This point explains that a condition for the one giving the bath is that he must be permitted to see the one being bathed. In the context of Imam Haskafi's statement, the implication is that the husband is prohibited from giving his wife the ghusl because the condition is not fulfilled i.e. he is not allowed to see his wifes body.

This raises the question as to the meaning of the latter portion of Imam Haskafi's statement: لا من النظر إليها على الأصح
The interpretation which you offered was the following:

Commenting on this, the great Hanafi authority and Mufti of Syria Imam Ibn 'Abidin al-Shami
ولعل وجهه أن النظر أخف من المس فجاز لشبهة الإختلاف ، والله أعلم
Trans. Maybe this is because looking [at the deceased wife’s face and body] 4 is less[spiritually damaging] than touching therefore it is permissible due to obscurity [brought about in understanding the sources] because of differences of opinions. And AllÁh knows best. (in the footnote this further remark is made: What Imam Ibn 'Abidin means by this last statement is that there are many Hadiths that are available which prove that a man can see and bathe his deceased wife; however the Hanafi scholars have found internal inconsistencies and epistemological flaws in them. Nevertheless, the presence of such Hadith (even in their flawed form) to a certain degree brings obscurity and ambiguity to the whole issue, and in such a situation a categorical fatwa of haram cannot be issued.

I would disagree with this reading of Allama Ibn 'Abidins statement.

In fact this statement of Imam Haskafi is similar to the statements of Imam Sarakhsi and Imam Kasani, and these need to be understood with reference to the mas'ala being discussed, which is of giving tayammum to the deceased women in the absence of a female. All of the authors make their comments with respect to that scenario. What they are saying is that when the ajnabi makes the tayammum he should not look at her arms but rather look away, whereas it is permitted for him to look at her face. This goes for both the husband and any other stranger.

Let us look at what Allama Ibn 'Abidin says before he gives the explanation you cited:
لا من النظر إليها على الأصح: عزاه في المنح إلى القنية، ونقل عن الخانية أنه إذا كان للمحرم يممها بيده، وأما الأجنبي فبخرقة على يده ويغض بصره عن ذراعيها، وكذا الرجل في امراته إلا في غض البصر.
Following this Allama Ibn 'Abidin then makes the statement:
ولعل وجهه أن النظر أخف من المس فجاز لشبهة الإختلاف ، والله أعلم

In this context the 'mass'- touch which he refers to is with respect to tayammum and hence the permissibility is with regards to her arms and not the rest of her body. This reading is attested further by your quote of Imam Shurubulali who states:

وليس عليه غض بصره عن ذراعيها بخلاف الأجنبي

Hence the difference of opinion between the earlier sholars does not relate to the earlier scholars not allowing the husband to look and the later scholars allowing the husband to look absolutely. The earlier scholars do not allow the husband to look at his wife except at her face as he is an ajnabi and hence follows the ruling with respect to that group. The later scholars also follow this ruling although a specific exception is granted to the husband to see the arms of his wife should he be giving her tayammum.

Now as to the minor points which I would like to discuss:
1)

It is my contention that the issue at hand is a secondary issue and had it been of significant importance in Hanafi fiqh it logically should have been found in the following three chapters of the Hanafi fiqh books

I think it is unhelpful to describe issues as secondary or allude to them as insignificant, I don't see what substantive purpose this serves. The point is one of systematic consistency and upholding the juridical superstructure.

2:

However to assume that every relation between the husband and the wife is severed due to death is misleading. (a) The husband will inherit from his wife after she passes away. In the case of a divorce they will not inherit from each other. It is obvious that she can no longer remain his wife in the legal sense(qada'an) for the very fact that she is dead, this does not mean that they are morally (diyanatan) no longer husband and wife. The reason why he can marry his deceased wife’s sister is because his deceased wife cannot legally carry out her duties towards her husband for very good reasons.
(b) The husband is legally obliged to provide the shroud for his deceased wife even if she leaves behind wealth of her own. In fact not only is he obliged to provide the shroud for her, he is also obliged to provide the incense, the cost of bathing, carrying and burying her. If their relationship becomes severed after she passes away, is it prudent to legally oblige a man to pay the cost of funeral for a strange woman who has no relationship with him? (c) If the marriage is deemed as broken, why do ÎanafÐ scholars differentiate in the ruling between the husband and the stranger (see quotation #3 above)? The burden of proof remains on their shoulders to explain this difference. It is due to, inter alia, these observations, I will have to disagree with Mufti Muhammad al-Kawthari in his use of the word ‘ex-wife’.
In my opinion a more appropriate, sensitive and aesthetic terminology for this
situation should be, instead of inqita al-nikah (severing of the marriage), itmam alnikah (completion of the marriage) i.e. the marriage has reached its logical completion and therefore has reached perfection.

With all due respect, I completely disagree with this analysis.
I cannot understand how you have used the words qada'an and diyanatan they have absolutley no relevance to this point. The marriage of the deceased is over both qada'an and diyanatan and to suggest otherwise is unjustified.

As for the husband being legally obliged to provide the shroud and the other items, then this mas'ala is from the bab of nafaqa as Allama Ibn 'Abidin says:

والاصل فيه أن من يجبر على نفقته في حياته يجبر عليها بعد موته (vol 3, 101.)

Now you may say that the existence of the husband's obligation to pay the funeral costs indicates that the marriage is not altogether terminated, however we know that a woman who is given a triple talaq is given nafaqa and residency during her idda even though her marriage is incontrovertably terminated. Thus nafaqa may be due even though the marriage has ended; if the husband is obliged to provide for his wife's funeral costs, this does not and can not be used to imply that the marriage is not over.

I would also question your suggestion of changing the terminology from inqita to itmam. Itmam has a specfic usage amongst the jurists throughout contract law and it means that the conditions of the contract have been met and its resultant hukm is established. In sale contracts itmam occurs once the goods are transferred and the hukm (ownership) is hence firmly established. In marriage itmam occurs following the consummation of the marriage (or the occurance of the khalwa sahiha) and hence the mahr in its entirety is due. To arbitrarly change the meaning of itmam to one which is incongruous with the jurist's convention is futile and will only further confuse the matter. Aesthetic language has no place in jural discourse.

I hope you don't mind my comments.

Wa Allah A'lam

[Mansy]

The first point I think that needs to be critically understood is that the face and hands of a woman are not awra even though it is mandatory for her to cover her face outside her home. This point is central to the discourse.

Assalamualaikum jazakallah for your insight, indeed it is the most rigorous critique that i've received upto yet. Khayr, your whole argument is based on the above premise, which I find contradictory in itself. Neverthless jazakallah. On a side note we asked Maulana Fazlur Rahim Saheb about the issue and he replied that its nothing to do with inqita al-nikah. On the contrary he said that its do with tanfir i.e. the person may get disgusted by seeing his wife in this state, hence the fuqaha prohibit from seeing and touching.

wassalam
Mansur

[Abu Shayba]

Thanks for taking my remarks in good light. It shows how mature and serious you are as a scholar. May Allah reward you.

The first point I think that needs to be critically understood is that the face and hands of a woman are not awra even though it is mandatory for her to cover her face outside her home.

Khayr, your whole argument is based on the above premise, which I find contradictory in itself. Neverthless jazakallah.

This point is misunderstood by many people and is what leads people to think that the niqab is not wajib. I previously mentioned this to Mufti Husain saheb, when reviewing his work on the niqab. I would recommend that you check the mas'ala in Imam Jassas' Ahkam al-Qur'an. (vol. 5, 172-3, 245), where he explictly mentions what constitutes the awra (172-3) and later on when he discusses the obligation of the niqab (245).

[True Life]

This was very clarifying, since I once discussed this issue with a local 'Alim. But he didn't explain it to me in such a detail.

[greenpeace]

As-Salamu-Alykum

Mufti Muhammad b. Adam al-KawtharÐ answers a similar fatwa on the website Sunni
Path:
“Question: If a man dies, is his wife allowed to see him before burial?
Answer: In the name of Allah, Most Compassionate, Most Merciful,
When a man passes away, his wife (in some respects) is considered to be still in his marriage until the completion of her waiting period (idda) which, in the event of death, is four months and ten days. Thus, it will be permitted for her to see her husband’s face, touch his body and even bathe him.
However, if the wife passes away, then (according to the Hanafi understanding) as soon as her soul leaves her body, the bond of marriage is considered to be terminated. As such, it will not be permitted for the husband to bathe his ex-wife.
It is stated in Maraqi al-Falah:
A woman may bathe her husband contrary to the man, for he will not bathe his wife as the bond of marriage has ended (Maraqi al-Falah with the Hashiya of Tahtawi, P: 571-572)

So, what is being said it is permisible for the wife to touch, bath hubby because of idda, but he is unable to do the same? Im not really getting to understanding the impermissiblity here.

It seemed rather unfair that the man is unable to decide , [even though there are others who can perform the act] after all it's his wife...he might be too grief-stricken to look at her in a state of death or in the opposite he might be too grief-stricken not to have the opportunity to look at her [for a last time] or bathed her...love is fascinating, you get to know someone truly, love them, the physical state [upon death] does not really disturb at this point, for some, because the heart is still being attached to one's deceased spouse. [maybe in some cases]

[KeepTheGazeDown]

Thanks for taking my remarks in good light. It shows how mature and serious you are as a scholar. May Allah reward you.


This point is misunderstood by many people and is what leads people to think that the niqab is not wajib. I previously mentioned this to Mufti Husain saheb, when reviewing his work on the niqab. I would recommend that you check the mas'ala in Imam Jassas' Ahkam al-Qur'an. (vol. 5, 172-3, 245), where he explictly mentions what constitutes the awra (172-3) and later on when he discusses the obligation of the niqab (245).

Jazaka-Allah Khaira for your insightful posts.

One thing I would like you to expound upon is that you mention "The first point I think that needs to be critically understood is that the face and hands of a woman are not awra even though it is mandatory for her to cover her face outside her home"..

I do find this contradictory, how can it be not be awra yet be mandotory to cover?. If you can just clarify that point for me.

[Abu Shayba]

The rulings pertaining to the awra are separate and distinct to the ruling of niqab. The ruling of niqab is not based on the woman needing to cover her awra but rather based upon a separate verse. The face of the woman is not part of her awra and hence when she prays she leaves it uncovered. Imam Jassas has presented a number of reasons which all indicate why the face of the woman is not considered to be part of her awra. It is quite an extensive discussion.
The upshot is that the rules of niqab and awra are not causally linked. Niqab is a separate ruling and should not be confused with the rulings of the awra. If you look at Albani's evidence or Dr. Darwish's evidence for limiting the hijab to the khimar (headscarf) it was based upon the definition of awra and the evidences pertaining to it. What was not discussed was that niqab is not related to that definition. Hence they sought to prove that the face was not part of the awra and therefore, logically, niqab was not necessary.
The error in this argument is to assume that the ruling of the niqab is based upon the face being awra. The two rulings are distinct and separate and are based upon different evidences. Hence you will find the discussion on awra in one place and niqab in another in Imam Jassas' Ahkam al-Quran. Had it been one mas'ala based upon the single definition of awra the discussion could have been gathered under one heading.

I hope this clarifies it, if not then I recommend you read it directly from the citations of Imam Jassas' work mentioned above.

As I said above I'm not a scholar so I hope the ulama can confirm if this understanding is correct or not.


wa Allah a'lam