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Fatwa Answer
Assalamualaikum
I have a question regarding hurmat e musahara. We have a daughter who is nine years old and sometimes she sleeps in our room. When me and my husband are intimate I am sometimes worried that hurmat may be established if he touches her accidentally. Although this has never happened and she even sleeps in her own room except when she gets scared and comes to our room at night. So I have heard that hurmat can happen when someone touches with shahwah but I am always scared that what if my husband accidentally touches her or like the other day we were in our room and suddenly my daughter needed something so she called us out and my husband was aroused because we were having relations inside the room. We came out and helped her with whatever she needed. Although he did not touch her, I was scared to think that hurmat might happen automatically if husband touches her when he was aroused for having realtions with me and has no lust (Astaghfirullah) for our daughter. Please let me know if hurmat occurs like this with no lustful feelings for our daughter but just the couple having relations and kids wake up or knock. We do have to sometimes let the kids sleep in our room for many days when we have extended family come over. Also I have a three year old who sleeps with us and and sometimes my husband has to move her over when she rolls over in bed and gets in our way while we have relations. Please give me answers quickly as these thoughts bother me.
الجواب وباللہ التوفیق
A girl nine years of age is considered “mushtahah”, therefore at this age if in the state of “shahwah” the husband touches or holds his daughter instead of the wife, “hurmat-e- musaharat” will be established.
However this ruling is not absolute, but is conditional on the following:
a. That the person’s hand touches his daughter’s body which is either exposed or is covered with such a thin or fine cloth that her body heat is easily felt by the hand upon touching her
b. That upon touching, “shahwat” initiates and if there was a prior state of “shahwat”, it then increases further.
If for example she was touched from over a thick covering or heavy clothes or “shahwat” did not take place while touching, or the “shahwat” which already existed did not increase upon touching, or “shahwat” did not occur after touching, and also did not enhance; in these situations the “hurmat-e- musahara” is not established.
However, extreme caution is required in these situations. The husband should also be made aware of the importance of ensuring the needed care and caution.
ھذا اذا کانت حیۃ مشتھاۃ) ولوماضیا (اماغیرھا) یعنی المیتۃ وصغیرۃ لم تشتہ (فلا) تتبت الحرمۃ بھا اصلا۔شامی میں ہے :۔ (قولہ ‘ فلا تثبت الحرمۃ بھا) ای بوطئھا اولمسھا اوالنظر الی فرجھا وقولہ اصلاً ای سواء کان بشہوۃ ام لا وسو اء انزل اولا (درمختار و شامی ص۳۸۷ج۲ ایضاً
فلو أیقظ زوجتہ أو أیقظتہ ہي لجماعہا فمست یدہ بنتہا المشتہاۃ أو یدہا ابنہ حرمت الأم أبدًا ۔ ( الدر المختار ۴ ؍ ۱۱۲ زکریا
ثم لا فرق في ثبوت الحرمۃ بالمس بین کونہ عامدًا أو ناسیًا أو مکرہًا أو مخطئًا ۔ ( الفتاویٰ الہندیۃ ۱ ؍ ۲۷۴ )
فقط واللہ اعلم بالصواب