The Hukm of Female Genital Modification

FEMALE GENITAL MODIFICATION

                                              

INTRODUCTION

Allah SWT says in the Qur’an Al-Hakim:

81:8 And when the female (infant) buried alive shall be questioned.
9 For what sin she was killed? 

            In antiquity, many societies in the Mediterranean Basin practiced female infanticide.  Roman fathers placed little necklaces around the necks of baby girls and abandoned them on rubbish mounds.  If the child was fortunate, someone would come by and enslave the infant. Otherwise, she would just starve to death, surrounded by the remains of Rome’s abundant food supply. And those little necklaces they provided a link to the parentage of the child, in case the child made something of herself later in life and the parents decided they would like to reconnect.[1] How nice of them!

So, why do fathers abandon their baby girls on rubbish heaps?  Why do they bury them alive? Why do they become consumed with grief upon hearing of the birth of a daughter?  Besides the perhaps more obvious blow to ones macho image, many men also fear damage to their honor.  What if she goes off and has a relationship with some low ranking man?  What if she has a relationship before I can marry her off to some man from another tribe, thereby making important alliances?  What if she takes a younger lover after being married to this well-connected man? 

Controlling female sexuality is an obsession among some men.  In many societies around the world, the male elders consider having a daughter a burden and a danger to the honor of the family.  The Jewish scriptures state: "Your daughter is headstrong? Keep a sharp look-out that she does not make you the laughing stock of your enemies, the talk of the town, the object of common gossip, and put you to public shame" (Ecclesiasticus 42:11), "Keep a headstrong daughter under firm control, or she will abuse any indulgence she receives. Keep a strict watch on her shameless eye, do not be surprised if she disgraces you" (Ecclesiasticus 26:10-11). In Jahiliyyah, the Arabs also buried their daughters alive.

16:58-59 "When news is brought to one of them of the birth of a female child, his face darkens and he is filled with inward grief. With shame does he hide himself from his people because of the bad news he has had! Shall he retain her on contempt or bury her in the dust? Ah! what an evil they decide on?" 

In Christianity, women were considered by nature, evil.  After all, according the Christian Bible, Eve is the one who tempted Adam to sin.  Only Mary is considered chaste and pure among women.  Christians subscribed fully to the Biblical statement: " The birth of a daughter is a loss" (Ecclesiasticus 22:3). European fathers locked their daughters up in metal chastity belts and held onto the keys.  The poor girls were not even able to clean themselves properly after going to the bathroom inside these metal cages surrounding their genitals. And even earlier, the Egyptian Copts or Kibtis, the Pharaonic people, allowed the girls to keep clean, but, instead, surgically sewed their vaginas shut.

            Then Allah SWT sent revelation through His Prophet Muhammad SAW. He revealed the ayat quoted above, and upon their acceptance of Islam, our Sahabi took an oath, the Baiyya’:

Sahih al-Bukhari » Limits and Punishments set by Allah (Hudood)

Narrated Ubada bin As-Samit:

I gave the pledge of allegiance to the Prophet with a group of people, and he said, "I take your pledge that you will not worship anything besides Allah, will not steal, will not commit infanticide, will not slander others by forging false statements and spreading it, and will not disobey me in anything good. And whoever among you fulfill all these (obligations of the pledge), his reward is with Allah. And whoever commits any of the above crimes and receives his legal punishment in this world, that will be his expiation and purification. But if Allah screens his sin, it will be up to Allah, Who will either punish or forgive him according to His wish." Abu `Abdullah said: "If a thief repents after his hand has been cut off, then his witness will be accepted. Similarly, if any person upon whom any legal punishment has been inflicted, repents, his witness will be accepted."

حَدَّثَنَا عَبْدُ اللَّهِ بْنُ مُحَمَّدٍ الْجُعْفِيُّ، حَدَّثَنَا هِشَامُ بْنُ يُوسُفَ، أَخْبَرَنَا مَعْمَرٌ، عَنِ الزُّهْرِيِّ، عَنْ أَبِي إِدْرِيسَ، عَنْ عُبَادَةَ بْنِ الصَّامِتِ ـ رضى الله عنه ـ قَالَ بَايَعْتُ رَسُولَ اللَّهِ صلى الله عليه وسلم فِي رَهْطٍ، فَقَالَ ‏ "‏ أُبَايِعُكُمْ عَلَى أَنْ لاَ تُشْرِكُوا بِاللَّهِ شَيْئًا، وَلاَ تَسْرِقُوا، وَلاَ تَقْتُلُوا أَوْلاَدَكُمْ، وَلاَ تَأْتُوا بِبُهْتَانٍ تَفْتَرُونَهُ بَيْنَ أَيْدِيكُمْ وَأَرْجُلِكُمْ، وَلاَ تَعْصُونِي فِي مَعْرُوفٍ، فَمَنْ وَفَى مِنْكُمْ فَأَجْرُهُ عَلَى اللَّهِ، وَمَنْ أَصَابَ مِنْ ذَلِكَ شَيْئًا فَأُخِذَ بِهِ فِي الدُّنْيَا فَهْوَ كَفَّارَةٌ لَهُ وَطَهُورٌ، وَمَنْ سَتَرَهُ اللَّهُ فَذَلِكَ إِلَى اللَّهِ، إِنْ شَاءَ عَذَّبَهُ وَإِنْ شَاءَ غَفَرَ لَهُ ‏"‏‏.‏ قَالَ أَبُو عَبْدِ اللَّهِ إِذَا تَابَ السَّارِقُ بَعْدَ مَا قُطِعَ يَدُهُ، قُبِلَتْ شَهَادَتُهُ، وَكُلُّ مَحْدُودٍ كَذَلِكَ إِذَا تَابَ قُبِلَتْ شَهَادَتُهُ‏.‏

            It is rather telling that Allah SWT felt that female infanticide was so serious a crime that pledging to not commit this practice came third in the list of pledges constituting surrender to Allah in Islam; only second after agreeing to worship none other than Allah.

After the revelation of the Qur’an, our deen and our Shariah take precedence over any culturally devised solutions to the problem of family honor.  We must abide by the commands and prohibitions of the Qur’an and the Sunnah.  While Urf can be a source of fiqh, it is only so if the Qur’an and the Sunnah do not directly address that particular issue.  Urf is far down on the list of sources of fiqh.  No matter how attached we may become to cultural traditions, if they are proscribed by our Shariah, to continue to perform such acts is sinful. 

We are all aware of the poor image of Islam held by the predominant culture in the West.  Despite the treatment of women in the West until very recently, the Western media has focused on other cultures, including the cultures of countries where Islam is the dominant religion, and singled out practices that subjugate and demean women as being the norm in those countries, thereby proving the “superiority” of Western culture.  Painting the “other” as backward, filthy, sexually licentious, and morally depraved is an old tactic.  The Romans did it to Carthage, painting them as baby killers. Islamophobes paint our beloved Prophet SAW as a pedophile in their effort to criminalize Islam. 

Islamophobes have an agenda, a mission, to paint Islam as evil.  One way is to focus on the treatment of women.  Not all of the accusations are unfounded.  The fact that actual men have seldom followed the teachings of the Qur’an and Sunnah in regard to the treatment of women does not imply that Islam is misogynistic.  Far from it.  Islam gave women the right to contract and conduct business 1400 years before women gained that right in the West – in 1973.

On the other hand, the errors and failures revealed by history are no excuse for our present behavior.  As Muslims, living in the world we live in today, we cannot afford to be lackadaisical about our fiqh. You are an ambassador for Islam, as well as for your country and your family.  Many unseen eyes are watching you!!  They are judging every Muslim in the world by your behavior.  If a fellow Muslim is killed because someone got a poor impression of Islam and Muslims from your behavior, you are partially to blame.  Remember our fiqh is not just ibadaat (worship), it is also mu’amalaat (transactions). And if you are “non-practicing”, “secular” then fine, but make sure people know you are not a Muslim.  Islam is not an ethnicity; it is a religion, a way of life.  If you are not living it, then you are not a Muslim, you have a different identity. We have no right to judge Christianity by the behavior of “non-practicing” Christians or secular atheists, (although many of us do). Please be clear about your identity so people will not judge Muslims on the basis of your cultural or personal behavior. And, if your identity is as a Muslim, learn your deen and try your best to live it. Don’t just assume you know it because you grew up in a certain place or speak a certain language.  It is amazing that people are so obsessed with family or tribal honor, but care little for the honor of those who share their nation or their deen. 

With this in mind, we must examine an issue made large by the Islamophobic movement: female genital mutilation.  This practice, confined mostly to eight African states, has become a cause for condemning Islam as misogynistic and barbaric, even though many practitioners of female genital mutilation are not Muslim and many who perform it are women.  Many Muslim leaders including leading shuyuk have condemned it and have declared many of the forms of this practice to be haram.  However, in regard to one form of this practice, scholars, both ancient and modern, disagree.  Just the fatawa issued by the scholars of Egypt and Al-Azhar University alone reveal the extent of this iktilaaf. [2]

In this paper, we will examine the various forms of female genital modification in light of the Qur’an, the Sunnah, and the Maqaasid ash-Shariah.   

---

[1] See, Meet the Romans, presented by Mary Beard, TV program available on YouTube as of 7/16/2017. 

[2] Al-Azhar has issued several “modern” fatawa, beginning in 1951, either declaring the practice mukaramah (pleasing to Allah) or denouncing it.  More recently, Sh. Gad al-Haq Ali issued a fatwa that khifaadh is a part of the legal body of Islam and is mukaramah. Imam al-Qaradawi has also favored it and has commented that it protects a girl’s morality “especially these days.” On the other hand, in March 2005, Dr Ahmed Talib, Dean of the Faculty of Sharia at Al-Azhar University, stated: "All practices of female circumcision and mutilation are crimes and have no relationship with Islam. Whether it involves the removal of the skin or the cutting of the flesh of the female genital organs... it is not an obligation in Islam." Sh. Mohammad Salim al Awa also released a fatwa along the same lines.  Most recently, in 2007, Ali Gomaa, the Grand Mufti of Egypt issued a fatwa condemning it. These dualing fatawa reveal a political dimension behind the debate over the Islamic ruling on khifaadh.  The Ikhwan al-Muslimeen and its scholars favor and promote the practice, resisting attempts to criminalize female circumcision in Egypt.  Scholars with government ties or ties to rival parties have ruled against it, including Mohammad Salim al Awa, who ran for president in the 2012 Egyptian elections against Mohammad Mursi.

                                                                                                             

Defining the Practice in Question

            Female genital mutilation is not an Islamic term.  No ayat of the Qur’an or hadith mention this term. It is a modern term covering a range of practices. I have preferred to use the term “female genital modification” in an effort to de-emotionalize the discussion.  Mutilation implies harm, pain, evil. Mutilation is haram. Even if, in the end, we find the practice to be haram, we must use neutral terms in our initial discussion.  When one of the things we must determine as fuqaha is whether this practice is mutilation, we would be guilty of circular logic is we used the term “female genital mutilation” to refer to the practices in question.

First of all, most of the scholars agree that the original or natural hukm sharii of any act is mubah. [1]  There are five hukm sharii in Shariah; fard, mustahab or mandub, mubah, makruh, and haram.  Unless evidence exists of a specific hukm other than mubah, then the practice is mubah.  Second, many have claimed that no ayat of the Qur’an governs this practice.  In that case, then, we must look to the Sunnah and other sources of evidence, such as qiyas or other rational methods.  Otherwise, if there is no specific applicable nass can be found to bear upon the issue, then the practice would be mubah.  However, there is an ayat of the Qur’an addressing this practice. Allah SWT says:

4: 119  I will mislead them and I will create in them false desires;

I will order them to slit the ears of cattle and to alter the creation of Allah.

Whosoever forsakes Allah and takes Shaytan as his friend has surely suffered a manifest loss. 

Therefore, any alteration, mutilation, and/or permanent modification of the human body is haram.[2] This ayat has been utilized in fiqh to prohibit cosmetic surgery, and other alterations to the human body performed for the purpose of appearance, trend, and other whims and fancies.  The same ayat provides the dalil for forbidding tattoos.  Moreover, it is upon this ayat that scholars have prohibited autopsies and even organ donation. 

In order to understand the weight this ayat has in our fiqh, we must understand the law of evidence under Shariah.  Evidence is of several grades: qati (certain), dhanni (probable), daif (weak), and khati’ah (false). The ayat above is qati evidence, clearly making alteration of the body is haram without a permissible reason, medical necessity, or clear statement in another ayat providing either naskh or takhsis (abrogation or specification/exception), or a hadith providing takhsis. Since there are no ayat providing either naskh or takhsis, then we must seek authentic, mutawatir or sahih hadith that would clearly make female genital modification mubah or one of the other five hukm sharii.

But before we do, we must understand the practice we are seeking a ruling on.

            Female genital modification is a practice prevalent in eight countries, centered mostly in Africa.  Several forms of this practice exist at the present time. These include:

1. Nicking the clitoral hood.
2. Cutting off the clitoral hood.
3. Cutting off the clitoris in part or in entirety.
4. Cutting off the labia mejora.
5. Cutting off the labia menora.
6. Incising the labia and sewing the labia together, leaving only a small hole for urine and blood to pass.
7. Cutting off the clitoris and labia mejora and labia menora.

The practice has a long history.  The first recording of this practice is in the records of Pharaonic Egypt during the time of Seti I and Ramses II.  In Egypt, the midwives performed a procedure cutting off the clitoris, labia mejora and labia menorah, and sewing the incised labia together, leaving only a small hole for the passage of urine and blood.  The practice spread to Sudan when Egypt conquered Nubia and proliferated up and down the Nile River basin when the Nubian kings conquered Egypt. [3]

When Christianity entered Ethiopia in the 1st century AD, the Church encountered the practice.  Christianity opposed the practice vigorously.  Christianity has long opposed circumcision for men; the idea of female circumcision was shocking for the Church.  Several prominent Christian scholars wrote bulls (fatawa) prohibiting the practice.  However, today, female genital modification remains prevalent in the Ethiopian Coptic Church.  In Africa, animists and pagan adherents, such as the Nandi, have long practiced this custom.  And in Ethiopia, the Ethiopian Jews also perform female circumcision, but do not perform it for men, despite clear Jewish law.[4] 

Why have previous peoples performed this practice?  As the presence of this practice among the Ethiopian Jews, who do not circumcise men, reveals, the practice centers on male concerns about women’s sexuality and the potential impact on family honor. What if my daughter has sex before marriage? What if she cheats on a husband that I married her to in order to cement family and tribal ties?  She would dishonor our family, our tribe…  So I need to find a way to restrain her.  As we noted in the Introduction, some fathers were so traumatized by the birth of a baby girl that they killed them rather than face potential shame. 

Some fathers could not kill the child, after all she could be married to another tribe to improve his business.  So they cut her genitals to remove her libido.  And to make everything more controlled, why not sew her vagina shut.  But how is her husband suppose to have sex with her, and if he manages to do so, how is she to have a baby?  How does this procedure protect honor and lineage if she cannot have a child? 

Have these concerns and the traditional nature of the practice influenced the people of the eight countries where this practice is prevalent to continue the practice after conversion to Islam?  There is no doubt that it has pre-Islamic roots.  So do many Islamic practices, including Hajj.  However, one must ask if this is a case of an existing practice adopted and approved of by the Qur’an and Sunnah or a case of an existing practice Islamically justified so people can continue to follow local traditions? How far are we willing to go to defend urf? 

Before we explore proffered evidence that female genital modification has been adopted and approved of by the Qur’an and Sunnah, let us set some preliminary terminology.  We shall define these terms in more detail later, but for now, in the interest of clarity, we will refer to male circumcision as Khitaan and female circumcision as Khifaadh.  While khitaan has been used to refer to both male and female circumcision, here we will restrict the usage so as to avoid confusion. Male circumcision or khitaan refers to the cutting and removal of the foreskin of the penis, a flap of skin surrounding the penis, attached to the shaft just below the glans, which can be moved up or down, exposing the glans.  Female circumcision or khifaadh, according to its proponents, then would be analogous to male circumcision and refers to the cutting and removal of the clitoral hood or prepuce, a flap of skin surrounding the clitoris, attached just below the clitoris and capable of being moved up and down to a slight degree. Movement of the prepuce is not necessary for sexual stimulation or intercourse.  The WTO refers to this practice as Type Ia female genital mutilation.[5]

As we have noted above, besides removal of the foreskin or precape, there are other forms of female genital modification.  Because these practices have been labeled “khitaan” or “khifaadh” by practitioners, it is imperative we examine each one and determine, not only the nature of these practices, but the hukm. We begin here by characterizing each practice.  We will examine the hukm later if Allah SWT gives us life.

            The first practice we will examine is nicking the clitoral hood. This practice involves nicking the prepuce with a cutting instrument just enough to cause bleeding and be superficially considered “cutting.” This practice has been suggested by Western medical practitioners as a way to respect cultural traditions without incurring the great harm women can experience with more evasive procedures. [6]

           

            The second practice is clitoridectomy.  The WHO defines this practice as partial or total removal of the clitoris and the clitoral hood and classifies it as Type I female genital mutilation. Removal of just the clitoral hood, which some consider to be female circumcision or khifaadh, is referred to as partial clitoridectomy, or Type 1a female genital mutilation.  Total removal of the clitoris and the prepuce is referred to a total clitoridectomy and constitutes the cutting and removal of the entire clitoris and its prepuce.  The WHO classifies this practice as Type Ib female genital mutilation.[7]

            The third practice is excision: cutting and removing the labia minora or inner vaginal “lips,” and/or cutting and removing the labia majora or outer vaginal “lips.” The WHO refers to this as Type II female genital mutilation.  The WHO recognizes three forms; Type IIa – removal of the labia minora; Type IIb – partial or total removal of the clitoris and labia minora; and Type IIc – partial or total removal of the clitoris, labia minora and labia majora.[8]

            The fourth practice is infibulation or the partial or total sealing off of the vaginal orifice. The WHO refers to this practice as Type III female genital mutilation.  Type IIIa involves excision, removal and apposition or suturing of the labia minora. Type IIIb involves excision, removal and apposition or suturing of the labia majora. Total infibulation leaves no opening for sexual relations and only a small hole for urine and blood to pass. In order for the woman to have sexual relations after marriage or to give birth to children, she will have to undergo further difibulation surgery.  Some women are then subjected to re-infibulation after child birth.[9] 

Now that we have defined the practices in question, we can move on to examine the Divine Sources of our deen to determine the hukm of each practice under Shariah law.

Evidence From Divine Sources

1. The Hadith of Abu Hurairah on the Fitrah

            All of the scholars agree that the Qur’an does not specifically address circumcision, either for males or females.  All evidence of the hukm sharii of circumcision comes from the Sunnah and is reported in the hadith literature.

            Proponents of khifaadh put forward several hadith in support of their contention that khifaadh is an Islamic practice.  They begin with hadith regarding the relationship of khataan to the fitrah, and arguing that the commands and prohibitions of the Shariah apply equally to men and women unless specified otherwise. This is based on the following Qur’anic verses:

4: 124. If any do deeds Of righteousness,
Be they male or female—And have faith,
They will enter Heaven, And not the least injustice
Will be done to them.

33: 35. For Muslim men and women,—For believing men and women,
For devout men and women, For true men and women,
For men and women who are Patient and constant, for men
And women who humble themselves For men and women who give
In charity, for men and women Who fast (and deny themselves),
For men and women who Guard their chastity, and
For men and women who Engage much in God's praise,—
For them has God prepared Forgiveness and great reward.

According to the Musnad Ahmad, Umm Salamah RAA asked the Prophet SAW “I said: O Prophet of Allaah  how is it that we are not mentioned in the Quran in the same manner as the men are mentioned?” She said: “Then, one day, I suddenly heard the call of the Prophet  on the pulpit while I was combing my hair, and I went near the door [of the room trying to hear what he says] and I listened directly to the voice coming from the direction of the Jareed (i.e. the part of the mosque which was thatched with the dried palm fronds, where the Prophet  used to give Khutbah) and I heard him saying: ''Allaah Says (what means): {Indeed, the Muslim men and Muslim women, the believing men and believing women, the obedient men and obedient women, the truthful men and truthful women, the patient men and patient women, the humble men and humble women, the charitable men and charitable women, the fasting men and fasting women, the men who guard their private parts and the women who do so, and the men who remember Allaah often and the women who do so - for them Allaah has prepared forgiveness and a great reward.}[Quran 33:35][10]

a.       Khitaan and its Hukm

            Given this fundamental principle that the Shariah applies equally to all Muslims, men and women, we must begin with an examination of the evidence from within the hadith literature for khitaan, male circumcision, and its hukm. The hadith most used to support the hukm of khitaan in Islam is a statement by Abu Hurairah RA.

Sahih al-Bukhari » Dress

Narrated Abu Huraira:

Allah's Apostle said, "Five practices are characteristics of the Fitra: circumcision, shaving the pubic region, plucking the armpit hairs, clipping the nails and cutting the moustaches short."

حَدَّثَنَا عَلِيٌّ، حَدَّثَنَا سُفْيَانُ، قَالَ الزُّهْرِيُّ حَدَّثَنَا عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ، رِوَايَةً ‏ "‏ الْفِطْرَةُ خَمْسٌ ـ أَوْ خَمْسٌ مِنَ الْفِطْرَةِ ـ الْخِتَانُ، وَالاِسْتِحْدَادُ، وَنَتْفُ الإِبْطِ، وَتَقْلِيمُ الأَظْفَارِ، وَقَصُّ الشَّارِبِ ‏"‏‏.‏ 

Narrated Abu Huraira:

I heard the Prophet saying. "Five practices are characteristics of the Fitra: circumcision, shaving the pubic hair, cutting the moustaches short, clipping the nails, and depilating the hair of the armpits."

حَدَّثَنَا أَحْمَدُ بْنُ يُونُسَ، حَدَّثَنَا إِبْرَاهِيمُ بْنُ سَعْدٍ، حَدَّثَنَا ابْنُ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ ـ رضى الله عنه ـ سَمِعْتُ النَّبِيَّ صلى الله عليه وسلم يَقُولُ ‏ "‏ الْفِطْرَةُ خَمْسٌ الْخِتَانُ، وَالاِسْتِحْدَادُ، وَقَصُّ الشَّارِبِ، وَتَقْلِيمُ الأَظْفَارِ، وَنَتْفُ الآبَاطِ ‏"‏‏

Sahih al-Bukhari » Asking Permission

Narrated Abu Huraira:

The Prophet said "Five things are in accordance with Al Fitra (i.e. the tradition of prophets): to be circumcised, to shave the pelvic region, to pull out the hair of the armpits, to cut short the moustaches, and to clip the nails.'

حَدَّثَنَا يَحْيَى بْنُ قُزَعَةَ، حَدَّثَنَا إِبْرَاهِيمُ بْنُ سَعْدٍ، عَنِ ابْنِ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ ـ رضى الله عنه ـ عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ ‏ "‏ الْفِطْرَةُ خَمْسٌ الْخِتَانُ، وَالاِسْتِحْدَادُ، وَنَتْفُ الإِبْطِ، وَقَصُّ الشَّارِبِ، وَتَقْلِيمُ الأَظْفَارِ ‏"‏‏.‏

Sahih Muslim » The Book of Purification (Kitab Al-Taharah)

Abu Huraira reported:

Five are the acts of fitra: circumcision, removing the pubes, clipping the moustache, cutting the nails, plucking the hair under the armpits.

حَدَّثَنِي أَبُو الطَّاهِرِ، وَحَرْمَلَةُ بْنُ يَحْيَى، قَالاَ أَخْبَرَنَا ابْنُ وَهْبٍ، أَخْبَرَنِي يُونُسُ، عَنِ ابْنِ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ، عَنْ رَسُولِ اللَّهِ صلى الله عليه وسلم أَنَّهُ قَالَ ‏ "‏ الْفِطْرَةُ خَمْسٌ الاِخْتِتَانُ وَالاِسْتِحْدَادُ وَقَصُّ الشَّارِبِ وَتَقْلِيمُ الأَظْفَارِ وَنَتْفُ الإِبْطِ ‏"‏

Abu Huraira reported:

Five are the acts quite akin to the Fitra, or five are the acts of Fitra: circumcision, shaving the pubes, cutting the nails, plucking the hair under the armpits and clipping the moustache.

حَدَّثَنَا أَبُو بَكْرِ بْنُ أَبِي شَيْبَةَ، وَعَمْرٌو النَّاقِدُ، وَزُهَيْرُ بْنُ حَرْبٍ، جَمِيعًا عَنْ سُفْيَانَ، - قَالَ أَبُو بَكْرٍ حَدَّثَنَا ابْنُ عُيَيْنَةَ، - عَنِ الزُّهْرِيِّ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ، عَنِ النَّبِيِّ صلى الله عليه وسلم قَالَ ‏ "‏ الْفِطْرَةُ خَمْسٌ - أَوْ خَمْسٌ مِنَ الْفِطْرَةِ - الْخِتَانُ وَالاِسْتِحْدَادُ وَتَقْلِيمُ الأَظْفَارِ وَنَتْفُ الإِبْطِ وَقَصُّ الشَّارِبِ ‏"‏ ‏.

Jami` at-Tirmidhi » Chapters on Manners

Narrated Abu Hurairah:

that the Messenger of Allah (SAW) said: "Five are from the Fitrah: Cutting the pubic hair, circumcision, paring the mustache, plucking the under arm hair and trimming the fingernails."

حَدَّثَنَا الْحَسَنُ بْنُ عَلِيٍّ الْحُلْوَانِيُّ الْخَلاَّلُ، وَغَيْرُ، وَاحِدٍ، قَالُوا حَدَّثَنَا عَبْدُ الرَّزَّاقِ، أَخْبَرَنَا مَعْمَرٌ، عَنِ الزُّهْرِيِّ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ، قَالَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ "‏ خَمْسٌ مِنَ الْفِطْرَةِ الاِسْتِحْدَادُ وَالْخِتَانُ وَقَصُّ الشَّارِبِ وَنَتْفُ الإِبْطِ وَتَقْلِيمُ الأَظْفَارِ ‏"‏ ‏.‏ قَالَ أَبُو عِيسَى هَذَا حَدِيثٌ حَسَنٌ صَحِيحٌ ‏.‏

Sunan an-Nasa'i » Book of Adornment

It was narrated that Abu Hurairah said:

"Five things are of the Fitrah: Clipping the nails, trimming the mustache, plucking the armpit hairs, shaving the pubes, and circumcision." (Sahih Mawquf)

أَخْبَرَنَا قُتَيْبَةُ، عَنْ مَالِكٍ، عَنِ الْمَقْبُرِيِّ، عَنْ أَبِي هُرَيْرَةَ، قَالَ خَمْسٌ مِنَ الْفِطْرَةِ تَقْلِيمُ الأَظْفَارِ وَقَصُّ الشَّارِبِ وَنَتْفُ الإِبْطِ وَحَلْقُ الْعَانَةِ وَالْخِتَانُ ‏.

Sunan an-Nasa'i » Book of Adornment

It was narrated that Talq bin Habib said:

"Ten things are from the Sunnah: Using the Siwak, trimming the mustache, rinsing the mouth, rinsing the nose, letting the beard grow, trimming the nails, plucking the armpit hairs, circumcision, shaving the pubes and washing one's backside."

أَخْبَرَنَا قُتَيْبَةُ، قَالَ حَدَّثَنَا أَبُو عَوَانَةَ، عَنْ أَبِي بِشْرٍ، عَنْ طَلْقِ بْنِ حَبِيبٍ، قَالَ عَشْرَةٌ مِنَ السُّنَّةِ السِّوَاكُ وَقَصُّ الشَّارِبِ وَالْمَضْمَضَةُ وَالاِسْتِنْشَاقُ وَتَوْفِيرُ اللِّحْيَةِ وَقَصُّ الأَظْفَارِ وَنَتْفُ الإِبْطِ وَالْخِتَانُ وَحَلْقُ الْعَانَةِ وَغَسْلُ الدُّبُرِ ‏.‏ قَالَ أَبُو عَبْدِ الرَّحْمَنِ وَحَدِيثُ سُلَيْمَانَ التَّيْمِيِّ وَجَعْفَرِ بْنِ إِيَاسٍ أَشْبَهُ بِالصَّوَابِ مِنْ حَدِيثِ مُصْعَبِ بْنِ شَيْبَةَ وَمُصْعَبٌ مُنْكَرُ الْحَدِيثِ ‏.‏ 

Sunan Ibn Majah » The Book of Purification and its Sunnah

It was narrated from 'Ammar bin Yasir that:

The Messenger of Allah said: "Part of the Fitrah is rinsing out the mouth, rinsing out the nostrils, using the tooth stick, trimming the mustache, clipping the nails, plucking the armpit hairs, shaving the pubic hairs, washing the joints, washing the private parts and circumcision.'" (Da'if) Another chain with similar wording.

حَدَّثَنَا سَهْلُ بْنُ أَبِي سَهْلٍ، وَمُحَمَّدُ بْنُ يَحْيَى، قَالاَ حَدَّثَنَا أَبُو الْوَلِيدِ، حَدَّثَنَا حَمَّادٌ، عَنْ عَلِيِّ بْنِ زَيْدٍ، عَنْ سَلَمَةَ بْنِ مُحَمَّدِ بْنِ عَمَّارِ بْنِ يَاسِرٍ، عَنْ عَمَّارِ بْنِ يَاسِرٍ، أَنَّ رَسُولَ اللَّهِ ـ صلى الله عليه وسلم ـ قَالَ ‏ "‏ مِنَ الْفِطْرَةِ الْمَضْمَضَةُ وَالاِسْتِنْشَاقُ وَالسِّوَاكُ وَقَصُّ الشَّارِبِ وَتَقْلِيمُ الأَظْفَارِ وَنَتْفُ الإِبِطِ وَالاِسْتِحْدَادُ وَغَسْلُ الْبَرَاجِمِ وَالاِنْتِضَاحُ وَالاِخْتِتَانُ ‏"‏ ‏.‏ حَدَّثَنَا جَعْفَرُ بْنُ أَحْمَدَ بْنِ عُمَرَ، حَدَّثَنَا عَفَّانُ بْنُ مُسْلِمٍ، حَدَّثَنَا حَمَّادُ بْنُ سَلَمَةَ، عَنْ عَلِيِّ بْنِ زَيْدٍ، مِثْلَهُ

Sunan Abi Dawud » Purification (Kitab Al-Taharah)

Narrated Ammar b. Yasir:

The Apostle of Allaah ( sal Allaahu alayhi wa sallam ) said : The rinsing of mouth and snuffing up water in the nose are acts that bear the characteristics of fitrah (nature). He then narrated a similar tradition (as reported by Aishah), but he did not mention the words "letting the beard grow". He added the words "circumcision" and "sprinkling water on the private part of the body". He did not mention the words "cleansing oneself after easing". Abu Dawud said : A similar tradition has been reported on the authority of Ibn 'Abbas. He mentioned only five sunnahs all relating to the head, one of them being parting of the hair; it did not include wearing the beard. Abu Dawud said: The tradition as reported by Hammad has also been transmitted by Talq b. Habib , Mujahid, and Bakr b. 'Abd Allaah b. al-Muzani as their own statement ( not as a tradition from the Prophet, sal Allaahu alayhi wa sallam ).They did not mention the words "letting the beard grow". The version transmitted by Muhammad b. Abd Allaah b. Abi Maryam, Abu Salamah, and Abu Hurairah from the Prophet ( sal Allaahu alayhi wa sallam ) mentions the words "letting the beard grow". A similar tradition has been reported by Ibrahim al-Nakha'i. He mentioned the words "wearing the beard and circumcision."

حَدَّثَنَا مُوسَى بْنُ إِسْمَاعِيلَ، وَدَاوُدُ بْنُ شَبِيبٍ، قَالاَ حَدَّثَنَا حَمَّادٌ، عَنْ عَلِيِّ بْنِ زَيْدٍ، عَنْ سَلَمَةَ بْنِ مُحَمَّدِ بْنِ عَمَّارِ بْنِ يَاسِرٍ، قَالَ مُوسَى عَنْ أَبِيهِ، - وَقَالَ دَاوُدُ عَنْ عَمَّارِ بْنِ يَاسِرٍ، - أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏"‏ إِنَّ مِنَ الْفِطْرَةِ الْمَضْمَضَةَ وَالاِسْتِنْشَاقَ ‏"‏ ‏.‏ فَذَكَرَ نَحْوَهُ وَلَمْ يَذْكُرْ إِعْفَاءَ اللِّحْيَةِ وَزَادَ ‏"‏ وَالْخِتَانَ ‏"‏ ‏.‏ قَالَ ‏"‏ وَالاِنْتِضَاحَ ‏"‏ ‏.‏ وَلَمْ يَذْكُرِ ‏"‏ انْتِقَاصَ الْمَاءِ ‏"‏ ‏.‏ يَعْنِي الاِسْتِنْجَاءَ ‏.‏ قَالَ أَبُو دَاوُدَ وَرُوِيَ نَحْوُهُ عَنِ ابْنِ عَبَّاسٍ وَقَالَ خَمْسٌ كُلُّهَا فِي الرَّأْسِ وَذَكَرَ فِيهَا الْفَرْقَ وَلَمْ يَذْكُرْ إِعْفَاءَ اللِّحْيَةِ ‏.‏ قَالَ أَبُو دَاوُدَ وَرُوِيَ نَحْوُ حَدِيثِ حَمَّادٍ عَنْ طَلْقِ بْنِ حَبِيبٍ وَمُجَاهِدٍ وَعَنْ بَكْرِ بْنِ عَبْدِ اللَّهِ الْمُزَنِيِّ قَوْلُهُمْ وَلَمْ يَذْكُرُوا إِعْفَاءَ اللِّحْيَةِ ‏.‏ وَفِي حَدِيثِ مُحَمَّدِ بْنِ عَبْدِ اللَّهِ بْنِ أَبِي مَرْيَمَ عَنْ أَبِي سَلَمَةَ عَنْ أَبِي هُرَيْرَةَ عَنِ النَّبِيِّ صلى الله عليه وسلم فِيهِ وَإِعْفَاءُ اللِّحْيَةِ وَعَنْ إِبْرَاهِيمَ النَّخَعِيِّ نَحْوُهُ وَذَكَرَ إِعْفَاءَ اللِّحْيَةِ وَالْخِتَانَ ‏.‏ 

In examining this line of ahadith, we must note that there are variants of the hadith from Abu Hurairah that do not mention khitaan. For example:

Sahih Bukhaari, Book of Dress

Narrated Ibn Umar: Allah’s Messenger (SAW) said, “To shave the pubic hair, the cut the nails, to clip the moustaches short, are characteristics of the fitrah.” 

Moreover, the last hadith narrated by Ammar ibn Yassir, shows the degree of variability in similar hadith on the fitrah.  However, given the abundance of ahadith referring to khitaan, [11] there is no doubt that khitaan is an Islamic practice.  Moreover, the hadith evidence points to a hukm sharii of at least mustahabb or mandub, therefore, not just permissible, but preferred and rewardable.  Of the traditional madhdhaab, the Hanafi and Maliki schools consider khitaan to be Sunnah Mu’akkadah, while the Shafi and Hanbali schools consider it fard. 

Certainly, under Jewish law, a prior revelation, circumcision of men is obligatory.  In Usuul Al Fiqh, prior law can be persuasive evidence, provided it is confirmed by either the Qur’an or the Sunnah.  Several versions of a hadith narrated by Abu Hurairah recount:

Sahih al-Bukhari » Asking Permission

Narrated Abu Huraira:

Allah's Apostle said "The Prophet Abraham circumcised himself after he had passed the age of eighty years and he circumcised himself with an adze."

حَدَّثَنَا أَبُو الْيَمَانِ، أَخْبَرَنَا شُعَيْبُ بْنُ أَبِي حَمْزَةَ، حَدَّثَنَا أَبُو الزِّنَادِ، عَنِ الأَعْرَجِ، عَنْ أَبِي هُرَيْرَةَ، أَنَّ رَسُولَ اللَّهِ صلى الله عليه وسلم قَالَ ‏"‏ اخْتَتَنَ إِبْرَاهِيمُ بَعْدَ ثَمَانِينَ سَنَةً، وَاخْتَتَنَ بِالْقَدُومِ ‏"‏‏.‏ مُخَفَّفَةً‏.‏ حَدَّثَنَا قُتَيْبَةُ حَدَّثَنَا الْمُغِيرَةُ عَنْ أَبِي الزِّنَادِ وَقَالَ ‏"‏بِالْقَدُّومِ"‏‏ وَهُوَ مَوْضِعٌ مُشَدَّدٌ

Therefore, an argument could be made that in regards to khitaan for men, the hukm under Jewish Halaqa law remains and that khitaan is fard. 

However, hadith conflict regarding whether the Prophet SAW required new converts to circumcise. 

Sunan Abi Dawud » Purification (Kitab Al-Taharah)

'Uthaim b. Kulaib reported from his father (Kuthair) on the authority of his grandfather (Kulaib) that he came to the Prophet (saws):

I have embraced Islam. The Prophet (saws) said to him: Remove from yourself the hair that grew during of unbelief, saying "shave them". He further says that another person (other than the grandfather of 'Uthaim) reported to him that the Prophet (saws) said to another person who accompanied him: Remove from yourself the hair that grew during the period of unbelief and get yourself circumcised.

حَدَّثَنَا مَخْلَدُ بْنُ خَالِدٍ، حَدَّثَنَا عَبْدُ الرَّزَّاقِ، أَخْبَرَنَا ابْنُ جُرَيْجٍ، قَالَ أُخْبِرْتُ عَنْ عُثَيْمِ بْنِ كُلَيْبٍ، عَنْ أَبِيهِ، عَنْ جَدِّهِ، أَنَّهُ جَاءَ إِلَى النَّبِيِّ صلى الله عليه وسلم فَقَالَ قَدْ أَسْلَمْتُ ‏.‏ فَقَالَ لَهُ النَّبِيُّ صلى الله عليه وسلم ‏"‏ أَلْقِ عَنْكَ شَعْرَ الْكُفْرِ ‏"‏ ‏.‏ يَقُولُ احْلِقْ ‏.‏ قَالَ وَأَخْبَرَنِي آخَرُ أَنَّ النَّبِيَّ صلى الله عليه وسلم قَالَ لآخَرَ مَعَهُ ‏"‏ أَلْقِ عَنْكَ شَعْرَ الْكُفْرِ وَاخْتَتِنْ ‏"‏ ‏.‏ 

Al-Adab Al-Mufrad » Circumcision

It is reported that al-Hasan said, "Are you not astonished by this man? (i.e. Malik ibn al-Mundhir) He went to some of the old people of Kaskar who had become Muslim and examined them and then commanded that they be circumcised although it was winter. I heard that some of them died. Greeks and Abyssinians became Muslim with the Messenger of Allah, may Allah bless him and grant him peace, and they were not examined at all."

حَدَّثَنَا مُحَمَّدٌ، قَالَ‏:‏ أَخْبَرَنَا عَبْدُ اللهِ، قَالَ‏:‏ أَخْبَرَنَا مُعْتَمِرٌ قَالَ‏:‏ حَدَّثَنِي سَالِمُ بْنُ أَبِي الذَّيَّالِ، وَكَانَ صَاحِبَ حَدِيثٍ، قَالَ‏:‏ سَمِعْتُ الْحَسَنَ يَقُولُ‏:‏ أَمَا تَعْجَبُونَ لِهَذَا‏؟‏ يَعْنِي‏:‏ مَالِكَ بْنَ الْمُنْذِرِ عَمَدَ إِلَى شُيُوخٍ مِنْ أَهْلِ كَسْكَرَ أَسْلَمُوا، فَفَتَّشَهُمْ فَأَمَرَ بِهِمْ فَخُتِنُوا، وَهَذَا الشِّتَاءُ، فَبَلَغَنِي أَنَّ بَعْضَهُمْ مَاتَ، وَلَقَدْ أَسْلَمَ مَعَ رَسُولِ اللهِ صلى الله عليه وسلم الرُّومِيُّ وَالْحَبَشِيُّ فَمَا فُتِّشُوا عَنْ شَيْءٍ‏.

Alone, this evidence is not dispositive.  Neither of these accounts is found in Sahih collections.  The first one narrated from the grandfather of “Uthaim ibn Kulaib has a hidden defect.  The part mentioning khitaan is related by an unknown individual, rendering it broken and unusable for fiqh under our minhaj.  The second one narrated by al-Hasan, a Sahaba, is stronger, but Imam Bukhaari did not include it in his Sahih, so we can assume he felt it has some defect.

The opinions of Abu Hanifa and Imam Malik seem to conform to a view that the Prophet SAW used the term “fitrah to indicate the Sunnah. Certainly, the hadith of Talq ibn Habib supports this view. 

So, what is the hukm sharii of khitaan, male circumcision?  Certainly, the hadith of Abu Hurairah does not support a hukm beyond mustahabb or mandub.  Referring to the five practices as “fitrah” does not mean they are fard.  There is no evidence that refraining from shaving the arm pits, cutting the nails, shaving the public hair and trimming the moustache is sinful and would incur punishment.

It should also be noted that khitaan was a common practice among the Arabs at the time of Prophet SAW.  In rather lengthy hadith in Sahih Bukhaari’s Book of Revelation narrated by Abdullah Ibn Abbas, a sub-narrator notes that Ibn An-Natur, the governor of Ilya (Jerusalem) narrated that Heraclius, the Byzantine Emperor, asked about a dream he had that the leader of those who circumcise would become a conqueror.  He was told that the Jews circumcised.  He then asked about the Arabs, and was told that they also practiced circumcision. While this hadith is weak at best, being related by a sub-narrator, without proper isnad, it does show some indication that male circumcision was an existing pre-Islamic practice, potentially carried over from Arab descent from the son of Ibrahim (AS), Ismail (AS).  And, it is known that the children of Muslims were circumcised.

Sahih al-Bukhari » Asking Permission

Narrated Said bin Jubair:

Ibn 'Abbas was asked, "How old were you when the Prophet died?" He replied. "At that time I had been circumcised." At that time, people did not circumcise the boys till they attained the age of puberty. Sa'id bin Jubair said, "Ibn 'Abbas said, 'When the Prophet died, I had already been circumcised. "

حَدَّثَنَا مُحَمَّدُ بْنُ عَبْدِ الرَّحِيمِ، أَخْبَرَنَا عَبَّادُ بْنُ مُوسَى، حَدَّثَنَا إِسْمَاعِيلُ بْنُ جَعْفَرٍ، عَنْ إِسْرَائِيلَ، عَنْ أَبِي إِسْحَاقَ، عَنْ سَعِيدِ بْنِ جُبَيْرٍ، قَالَ سُئِلَ ابْنُ عَبَّاسٍ مِثْلُ مَنْ أَنْتَ حِينَ قُبِضَ النَّبِيُّ صلى الله عليه وسلم قَالَ أَنَا يَوْمَئِذٍ مَخْتُونٌ‏.‏ قَالَ وَكَانُوا لاَ يَخْتِنُونَ الرَّجُلَ حَتَّى يُدْرِكَ‏.‏ 

Al-Adab Al-Mufrad » Circumcision

Salim said, "Ibn 'Umar, Nu'aym and I were circumcised and they sacrificed a ram on our behalf. I think that we were more happy about it than the other children since a ram had been sacrificed on our behalf."

These two hadith seem to indicate a continuation of the pre-Islamic Arab practice, where the boy was circumcised around the age of puberty.  Only weak hadith indicate that Al-Hasan and Al-Hussein were circumcised on the 7^th day after birth, as is the custom among many Muslims today.  So, we could suppose that the early Muslim never questioned whether or not it should be performed.  It was more or less automatic in the culture.

Therefore, none of these reports provides definitive support that khitaan is fard.  While circumcision of Muslim children might be viewed as indicative of its obligation, this fact could stem from a preference for circumcision among Arabs in general.

While aathar provide persuasive evidence that the early scholars held that khitaan was fard, these too are not dispositive. 

Al-Adab Al-Mufrad » Circumcision

Ibn Shihab said, "When a man became Muslim, he was ordered to have himself circumcised, even if he was old."

Although this report is not a hadith, but is an aathar or report of a saying by a Sahabi, Tabi’in or scholar, it does provide evidence that at the time of Umar Ibn Abdulaziz, the Muslims held that a convert was required to circumcise.  Moreover, it is recorded that Ali ibn Abi Talib (RAA) also made a similar statement to the effect that, “If a man becomes a Muslim, he must submit to circumcision, even if he is 80 years old.” [12] The Shia Ulema hold that a person may not make hajj until he is circumcised.

Given this evidence, one has to ask whether these aathar and daif hadith are persuasive enough or reliable enough to support a hukm sharii beyond mustahabb.

b. Hukm Sharii of Khitaan for Males

Therefore, given the totality of the evidence, the hukm sharii of khitaan for males is mustahabb or mandub.  The Islamic hukm of khitaan is based on the revelation sent to Ibrahim, and its affirmation in the Sunnah revealed to the Prophet Muhammad (SAW). However, the most sahih report, the report of Abu Hurairah, indicates that the hukm sharii applied under Jewish Halaqa law, that of fard, has been abrogated and replaced by the hukm of mustahabb or mandub.  This is supported by the earliest madhdhaahib, that of Abu Hanifa and Imam Malik, who hold that khitaan is Sunnah Mu’akkadah. The aathar of Ibn Shihab, Ali ibn Abi Talib and others were recorded far later and may be questionable. Earlier narrations regarding the obligation of converts to circumcise also have issues, although the hadith of Al-Hasan, holding that the practice is not obligatory, is stronger. Finally, the opinion of Imam Malik holding that khitaan is Sunnah Mu’akkadah carries great weight due to being the prevailing opinion of the Ahl al-Madina.[13] 

However, it should be noted that the opinion that khitaan is fard is quite reasonable given the same evidence.  For this reason, ikhtilaf on the issue of the hukm of khitaan, or male circumcision, is permissible.  Allah Ta’ala Alaa.

c. Under the Hadith of Abu Hurairah, Does Khitaan Apply to Females?

Proponents of female circumcision have argued that the hadith of Abu Hurairah mentioned above applies equally to women.  We noted above the Qur’anic verse supporting equal application of the Shariah law to women.  Therefore, it is a well settled principle in Islam that the commands and prohibitions of this Deen apply equally to men and women unless otherwise indicated.

Clearly there are cases where this equality can only be stretched so far.  Men do not menstruate or bear children.  Men are not required to wait for three quru’ before remarriage and are not required to wait four months after the death of a husband to remarry.  They do not have to wait to reveal what is in their wombs. 

Let us review the hadith of Abu Hurairah in light of these considerations:

Sahih al-Bukhari » Dress

Narrated Abu Huraira:

Allah's Apostle said, "Five practices are characteristics of the Fitra: circumcision, shaving the pubic region, plucking the armpit hairs, clipping the nails and cutting the moustaches short."

حَدَّثَنَا عَلِيٌّ، حَدَّثَنَا سُفْيَانُ، قَالَ الزُّهْرِيُّ حَدَّثَنَا عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، عَنْ أَبِي هُرَيْرَةَ، رِوَايَةً ‏ "‏ الْفِطْرَةُ خَمْسٌ ـ أَوْ خَمْسٌ مِنَ الْفِطْرَةِ ـ الْخِتَانُ، وَالاِسْتِحْدَادُ، وَنَتْفُ الإِبْطِ، وَتَقْلِيمُ الأَظْفَارِ، وَقَصُّ الشَّارِبِ ‏"‏‏.‏ 

Many have noted that shaving the pubic region, plucking the arm pit hairs and clipping the nails applies to everyone, men and women.  However, women do not have moustaches.  The same can be said of beards, which many hold it is haram to cut. [14] The fact that some of the five fitrah may apply to men and women does not necessitate that all of them apply.  Moreover, as we have seen, not all reports of this hadith include khitaan.

            Therefore, taken alone, this hadith and its related reports do not constitute sufficient evidence to support the proposition that khifaadh or female circumcision is an Islamic practice. 

           

2. The Hadith of Ayesha RAA: al-Khitaanu al-Khitaana

Imam Malik relates in his al-Muwatta, the following:

Muwatta Malik » Purity

Yahya related to me from Malik from Ibn Shihab from Said ibn al- Musayyab that Umar ibn al-Khattab and Uthman ibn Affan and A'isha, the wife of the Prophet, may Allah bless him and grant him peace, used to say, "When the circumcised part touches the circumcised part, ghusl is obligatory."

حَدَّثَنِي يَحْيَى، عَنْ مَالِكٍ، عَنِ ابْنِ شِهَابٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، أَنَّ عُمَرَ بْنَ الْخَطَّابِ، وَعُثْمَانَ بْنَ عَفَّانَ، وَعَائِشَةَ، زَوْجَ النَّبِيِّ صلى الله عليه وسلم كَانُوا يَقُولُونَ إِذَا مَسَّ الْخِتَانُ الْخِتَانَ فَقَدْ وَجَبَ الْغُسْلُ ‏.‏ 

This hadith is also related by Imam Malik through the Golden Isnad:

Muwatta Malik » Purity

Yahya related to me from Malik from Nafi that Abdullah ibn Umar used to say, "When the circumcised part passes the circumcised part, ghusl is obligatory."

وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ نَافِعٍ، أَنَّ عَبْدَ اللَّهِ بْنَ عُمَرَ، كَانَ يَقُولُ إِذَا جَاوَزَ الْخِتَانُ الْخِتَانَ فَقَدْ وَجَبَ الْغُسْلُ ‏

‏        Imam Muslim also relates in his Sahih:

 Sahih Muslim » The Book of Menstruation (Kitab Al-Haid)

Abu Musa reported:

There cropped up a difference of opinion between a group of Muhajirs (Emigrants and a group of Ansar (Helpers) (and the point of dispute was) that the Ansar said: The bath (because of sexual intercourse) becomes obligatory only-when the semen spurts out or ejaculates. But the Muhajirs said: When a man has sexual intercourse (with the woman), a bath becomes obligatory (no matter whether or not there is seminal emission or ejaculation). Abu Musa said: Well, I satisfy you on this (issue). He (Abu Musa, the narrator) said: I got up (and went) to 'A'isha and sought her permission and it was granted, and I said to her: 0 Mother, or Mother of the Faithful, I want to ask you about a matter on which I feel shy. She said: Don't feel shy of asking me about a thing which you can ask your mother, who gave you birth, for I am too your mother. Upon this I said: What makes a bath obligatory for a person? She replied: You have come across one well informed! The Messenger of Allah (may peace be upon him) said: When anyone sits amidst four parts (of the woman) and the circumcised parts touch each other a bath becomes obligatory.

وَحَدَّثَنَا مُحَمَّدُ بْنُ الْمُثَنَّى، حَدَّثَنَا مُحَمَّدُ بْنُ عَبْدِ اللَّهِ الأَنْصَارِيُّ، حَدَّثَنَا هِشَامُ بْنُ حَسَّانَ، حَدَّثَنَا حُمَيْدُ بْنُ هِلاَلٍ، عَنْ أَبِي بُرْدَةَ، عَنْ أَبِي مُوسَى الأَشْعَرِيِّ، ح وَحَدَّثَنَا مُحَمَّدُ بْنُ الْمُثَنَّى، حَدَّثَنَا عَبْدُ الأَعْلَى، - وَهَذَا حَدِيثُهُ - حَدَّثَنَا هِشَامٌ، عَنْ حُمَيْدِ بْنِ هِلاَلٍ، قَالَ - وَلاَ أَعْلَمُهُ إِلاَّ عَنْ أَبِي بُرْدَةَ، - عَنْ أَبِي مُوسَى، قَالَ اخْتَلَفَ فِي ذَلِكَ رَهْطٌ مِنَ الْمُهَاجِرِينَ وَالأَنْصَارِ فَقَالَ الأَنْصَارِيُّونَ لاَ يَجِبُ الْغُسْلُ إِلاَّ مِنَ الدَّفْقِ أَوْ مِنَ الْمَاءِ ‏.‏ وَقَالَ الْمُهَاجِرُونَ بَلْ إِذَا خَالَطَ فَقَدْ وَجَبَ الْغُسْلُ ‏.‏ قَالَ قَالَ أَبُو مُوسَى فَأَنَا أَشْفِيكُمْ مِنْ ذَلِكَ ‏.‏ فَقُمْتُ فَاسْتَأْذَنْتُ عَلَى عَائِشَةَ فَأُذِنَ لِي فَقُلْتُ لَهَا يَا أُمَّاهْ - أَوْ يَا أُمَّ الْمُؤْمِنِينَ - إِنِّي أُرِيدُ أَنْ أَسْأَلَكِ عَنْ شَىْءٍ وَإِنِّي أَسْتَحْيِيكِ ‏.‏ فَقَالَتْ لاَ تَسْتَحْيِي أَنْ تَسْأَلَنِي عَمَّا كُنْتَ سَائِلاً عَنْهُ أُمَّكَ الَّتِي وَلَدَتْكَ فَإِنَّمَا أَنَا أُمُّكَ ‏.‏ قُلْتُ فَمَا يُوجِبُ الْغُسْلَ قَالَتْ عَلَى الْخَبِيرِ سَقَطْتَ قَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم ‏ "‏ إِذَا جَلَسَ بَيْنَ شُعَبِهَا الأَرْبَعِ وَمَسَّ الْخِتَانُ الْخِتَانَ فَقَدْ وَجَبَ الْغُسْلُ ‏"‏ ‏.‏

            While I have no doubt that this hadith is sahih according to Imam Muslim and was accepted by Imam Malik, and therefore that it meets the criteria I have set forth in our minhaj for a sahih hadith, valid for the purposes of deriving fiqh, I have serious issues with the interpretation and subsequent translation of this narration.  Just because a hadith is sahih does not mean that the interpretation is sahih.

            The term “khitaan” in this hadith has been interpreted and translated to mean “the two circumcised parts.”  In nawh, khitaan is not a dual form.  The dual of khitn or khitaan would be khitaanaan or khitaanain.  So the literal meaning of this term is not the “two circumcised parts.” 

            Therefore, the apparent dhahiri meaning of khitaan in this hadith is singular, not dual.  And according to Lane’s Lexicon, the term khitaan is defined in relation to the ayat of the Qur’an referring to ghusl following intercourse.

Allah SWT says in the Qur’an:

4:43  "O you who believe! Approach not As-Salat (the prayer) when you are in a drunken state until you know (the meaning) of what you utter, nor when you are in a state of Janaba, (i.e. in a state of sexual impurity and have not yet taken a bath) except when travelling on the road (without enough water, or just passing through a mosque), till you wash your whole body. And if you are ill, or on a journey, or one of you comes after answering the call of nature, or you have been in contact with women (by sexual relations) and you find no water, perform Tayammum with clean earth and rub therewith your faces and hands (Tayammum) . Truly, Allah is Ever Oft-Pardoning, Oft-Forgiving.

            In his Lexicon, Lane defines the term khitaan as referring not only to circumcision but also specifically to that part of the penis from where the foreskin attaches or was attached just below the glans, up to the tip of the glans.  So in terms of the interpretation of hadith of Ayesha RAA, Lane posits that it means that when the part of the penis from the foreskin attachment line to the tip penetrates into the vagina, then the person is in intercourse and must make ghusl.  Anything short of this degree of penetration does not incur ghusl. 

            This is supported by a variant of the hadith found in The Muwatta of Imam Malik.

Muwatta Malik » Purity

Yahya related to me from Malik from Yahya ibn Said from Said ibn al-Musayyab that Abu Musa al-Ashari came to A'isha, the wife of the Prophet, may Allah bless him and grant him peace, and said to her, "The disagreement of the companions in a matter which I hate to bring before you has distressed me." She said, "What is that? You did not ask your mother about it, so ask me." He said, "A man penetrates his wife, but becomes listless and does not ejaculate. "She said, "When the khitaan part passes or penetrates, ghusl is obligatory."  Abu Musa added, "I shall never ask anyone about this after you."

وَحَدَّثَنِي عَنْ مَالِكٍ، عَنْ يَحْيَى بْنِ سَعِيدٍ، عَنْ سَعِيدِ بْنِ الْمُسَيَّبِ، أَنَّ أَبَا مُوسَى الأَشْعَرِيَّ، أَتَى عَائِشَةَ زَوْجَ النَّبِيِّ صلى الله عليه وسلم فَقَالَ لَهَا لَقَدْ شَقَّ عَلَىَّ اخْتِلاَفُ أَصْحَابِ النَّبِيِّ صلى الله عليه وسلم فِي أَمْرٍ إِنِّي لأُعْظِمُ أَنْ أَسْتَقْبِلَكِ بِهِ ‏.‏ فَقَالَتْ مَا هُوَ مَا كُنْتَ سَائِلاً عَنْهُ أُمَّكَ فَسَلْنِي عَنْهُ ‏.‏ فَقَالَ الرَّجُلُ يُصِيبُ أَهْلَهُ ثُمَّ يُكْسِلُ وَلاَ يُنْزِلُ فَقَالَتْ إِذَا جَاوَزَ الْخِتَانُ الْخِتَانَ فَقَدْ وَجَبَ الْغُسْلُ ‏.‏ فَقَالَ أَبُو مُوسَى الأَشْعَرِيُّ لاَ أَسْأَلُ عَنْ هَذَا أَحَدًا بَعْدَكِ أَبَدًا ‏.‏ 

            Therefore, the hadith of Ayesha has been incorrectly interpreted to mean “when the two circumcised parts touch,” thereby indicating that a female can be circumcised or that female circumcision is mubah.  Instead, it is more correctly interpreted to mean, “when the part of the penis from the tip of the glans to the raised scar line where the foreskin was attached penetrates into the vagina, it then becomes incumbent upon both partners to make ghusl.”

            In short, this hadith of Ayesha RAA does not provide evidence of any hukm for khifaadh.  Although it could be used tangentially to support khitaan in males, it has no bearing on female circumcision.

3. Umm Atiyyah

            While proponents of khifaadh have relied upon both of the hadith above, it is upon the narrations surrounding the practice of a female circumcisor in Madina upon which the greatest weight has been placed.  I feel this reliance has been greatly misplaced.

The narration in Sunan Abu Dawud reads:

Sunan Abi Dawud » General Behavior (Kitab Al-Adab)

Narrated Umm Atiyyah al-Ansariyyah:

A woman used to perform circumcision in Medina. The Prophet (saws) said to her: Do not cut severely as that is better for a woman and more desirable for a husband. Abu Dawud said: It has been transmitted by 'Ubaid Allah b. 'Amr from 'Abd al-Malik to the same effect through a different chain. Abu Dawud said: It is not a strong tradition. It has been transmitted in mursal form (missing the link of the Companions) Abu Dawud said: Muhammad b. Hasan is obscure, and this tradition is weak.

حَدَّثَنَا سُلَيْمَانُ بْنُ عَبْدِ الرَّحْمَنِ الدِّمَشْقِيُّ، وَعَبْدُ الْوَهَّابِ بْنُ عَبْدِ الرَّحِيمِ الأَشْجَعِيُّ، قَالاَ حَدَّثَنَا مَرْوَانُ، حَدَّثَنَا مُحَمَّدُ بْنُ حَسَّانَ، - قَالَ عَبْدُ الْوَهَّابِ الْكُوفِيُّ - عَنْ عَبْدِ الْمَلِكِ بْنِ عُمَيْرٍ، عَنْ أُمِّ عَطِيَّةَ الأَنْصَارِيَّةِ، أَنَّ امْرَأَةً، كَانَتْ تَخْتِنُ بِالْمَدِينَةِ فَقَالَ لَهَا النَّبِيُّ صلى الله عليه وسلم ‏ "‏ لاَ تُنْهِكِي فَإِنَّ ذَلِكَ أَحْظَى لِلْمَرْأَةِ وَأَحَبُّ إِلَى الْبَعْلِ ‏"‏ ‏.‏ قَالَ أَبُو دَاوُدَ رُوِيَ عَنْ عُبَيْدِ اللَّهِ بْنِ عَمْرٍو عَنْ عَبْدِ الْمَلِكِ بِمَعْنَاهُ وَإِسْنَادِهِ ‏.‏ قَالَ أَبُو دَاوُدَ لَيْسَ هُوَ بِالْقَوِيِّ وَقَدْ رُوِيَ مُرْسَلاً ‏.‏ قَالَ أَبُو دَاوُدَ وَمُحَمَّدُ بْنُ حَسَّانَ مَجْهُولٌ وَهَذَا الْحَدِيثُ ضَعِيفٌ ‏.‏

Abu Dawud’s Sunan is an important collection of hadith in that he collected ahadith that were being used by scholars of his day in support of their dalil of fiqh.  So the presence of this hadith in his Sunan tells us scholars were using it in their dalil.  However, we noted that Abu Dawud did not feel this was a strong tradition in that it had been related in mursal form. It does not specify that Umm Atiyyah actually heard the Prophet speak to the anonymous woman who performed this practice. The verb used in relation to Umm Atiyyah is “’an” not “haddathna” or some other indicator of direct hearing. However, Sheikh Albani found this particular hadith to be sahih under his criterion.  As we have noted above, this criterion, using Ilm Al-Rijal alone is not valid. Under our minhaj, I will not accept a chain that has a broken link or one with such a weak relation. It is simply too dangerous to accept such a hadith for the purposes of fiqh.  Fiqh is not a joke.  If it is haram to subscribe words falsely to our Prophet SAW, how much more so to do so to Allah SWT.  In fact Allah SWT says so. 

Allah SWT says in the Qur’an al-Hakim:

 6:144. Of camels a pair, And of oxen a pair;
Say, hath He forbidden The two males,
Or the two females, Or (the young) which the wombs
Of the two females enclose?— Were ye present when God
Ordered you such a thing? But who doth more wrong
Than one who invents A lie against God,
To lead astray men Without knowledge?
For God guideth not People who do wrong

            Some have cited a version of this hadith found in al-Hakim’s al-Mustadrak which they hold to be sahih.  First, I have to ask under what criteria has this hadith been found to be sahih?  No uniform criterion exists for a sahih hadith.  The criterion for sahih used by al-Hakim has been criticized by some scholars. While some of his sahih hadith are also found in the Sahihs of al-Bukhaari and Muslim, and so conform to their criteria, some were adjudged by his own ijtehad. Ibn Hajar al-Asqalani, Imam Nawawi and al-Dhahabi found his criteria for sahih to be too lenient.  Moreover, this hadith is not found in earlier collections.  The earliest is Abu Dawud and he finds the hadith to be da’if.

            As we noted above, one of the defects with this hadith of Umm Atiyyah is that it is found in mursal form.  However, some have cited a hadith of Umm Habeebah, a circumciser of female slaves. When the Prophet SAW asked her if she was currently practicing female circumcision, she replied, "Unless it is forbidden and you order me to stop doing it." It is reported that the Prophet (peace and blessings be upon him) said to a midwife: "Reduce the size of the clitoris but do not exceed the limit, for that is better for her health and is preferred by husbands". This passage has come to be known as "the exciser's narration." So, unlike the hadith of Umm Atiyyah, this hadith apparently comes directly from person to whom the Prophet SAW spoke about the issue. While this hadith presents the appearance of a complete chain supporting the permissibility of female cutting of some form, the fact that it is not found in the early collections raises concerns.  Imam al-Qaradawi does not find it to be sahih.[15]

Even if we accept this hadith as evidence based on its isnad, we must also look to the matin.  What does this hadith say? Umm Atiyyah’s hadith begins, “La tunhiki”  “Do not cut.”  It then goes on to say that is “ahdha” for women and beloved by men.  The “la” indicates dislike or a preference that the thing not be done.  The Prophet then states that it is best, not just better, but the superlative best (ahdha), for women in terms of their health and wellbeing.  And, it is best for the happiness of the husband.  Why?  Many men derive the most pleasure from their ability to satisfy their wives.  If their wife is experiencing pleasure, they will too.  Under Shariah Law, the wife has a right to sexual satisfaction, as does the husband.  These practices deprive both partners of that right.

Some scholars have held that the “la” is crucial, and indicative of a gradual trend toward total prohibition, much like the prohibition of alcohol and the dislike and trend toward abolishment of slavery in Islam.  These scholars posit that “la tunhiki” means that the Prophet SAW was moving toward abolishing this practice entirely.  The next part of the hadith substantiate this in that, just as with the ayaat of the Qur’an mentioning the detriments of drinking alcohol, the Prophet gives the ‘illa or reason for preferring that she not cut. 

It is important to note that while the hadith of Umm Habibah does not have the language of “la tunhiki,” it still advises her not to cut excessively so as not to harm the woman and to allow of the pleasure of the man.  Clearly, the purport of this hadith of Umm Habeebah is the same as that of Umm Atiyyah, that the preference is to forego cutting, but if it is done, one must consider the pleasure of both the man and the woman.  Even if it does not contain the “la”, it still supports a gradual trend toward ending the practice.

Finally, I find this hadith regarding the female circumcisor and her practice to be insuffiently strong enough to overcome the Quranic prohibition against mutilation or permanent modification of the human bidy.  I do not feel it is binding evidence for the purposes of fiqh.  However, even when considered as persuasive evidence, I would agree with those scholars who posit that the hadith indicates a move toward abolishing the practice and that if that process was not completed before the death of Rasulallah SAW, then the practice would be makruh.

4. If Khifaadh was Mubah, Where is the Expected Evidence?

One of the principles of this minhaj is that we do not accept ahad hadith where the where the practice or saying occurred in public and should have been recorded by many. Khifaadh is not a public event, but certainly the wives of the Prophet, the Mothers of the Believes would be expected to be aware of this practice or to have had it performed. Where are the hadith from Ayesha, the wife of our Prophet SAW, who was young enough to have been born around the time of her father’s conversion?  Where are the hadith from sisters who converted to Islam recounting how they were circumcised after Islam?  And perhaps, most tellingly, where is the hadith that the Prophet had his beloved daughter, Fatimah, circumcised? 

The proponents of khifaadh rely upon a hadith related by Imam Jaafar al-Sadiq, from the Prophet SAW that khitaan is law (i.e. Fard) for men and mukramah is for women.  This hadith comes in various forms indicating different things.  In one form, it could be interpreted to mean that khitaan is for men, and if some one wonders if under the principle of equality of men and women under Shariah, what is for women, then being honorable is for women.  In other words, the corresponding act for women is to act honorably and guard their chastity. 

However, some forms of this hadith lead to another impression.  In a version related by Imam Jaafar al-Sadiq, the hadith would seem to be saying that khitaan is for fard for men and “makrumah” for women, i.e. honorable.  The difficultly with this interpretation is that “makrumah” is not a hukm sharii.  At most, this hadith would indicate that khitaan is fard for men, and perhaps permissible or mubah for women.  It is possible this could be stretched to mustahhabb or mandub given some forms of the hadith.  However, it appears that some of the shuyuk of Al-Azhar have used this hadith or a variant to support the opinion that khifaadh is mukaramah or pleasing to Allah SWT.  Again, mukaramah is not a hukm sharii. 

But, what about the missing hadith, the missing evidence?  If khifaadh was mustahabb, why did not Fatimah, the most mukramah of women, have it done?  Why didn’t her father have it performed on her?  It was a pre-Islamic practice.  Where are ahadith recording any wife of Prophet SAW or daughter having this done?  Where was Umm Habeebah when Zainab, Ruqayyah, Umm Kulthum and Fatimah were born?  And what about Ayesha, Hafsa, even Khadijah RAA?  Were they dishonorable women? (Istaghfirullah)

What about the hadith recorded by Shia?  Where are the hadith in Al-Kafi recording Fatimah’s khifaadh?  Or the khifaadh of Ali’s daughter, Zainab? The only so-called Shia group practicing this khifaadh are the South Asian Ismaili  Dawoodi Bohras.  In fact, two medical practitioners have been indicted under the Federal anti-FGM statute for performing forms of female genital modification on minor Ismaili Bohra girls in Michigan.[16]

In fact, the only hadith I could find mentioning this practice in regard to one of the Mothers of the Believers is the following rather dubious account:

Al-Adab Al-Mufrad » Circumcision

Umm 'Alqama related that when the daughters of 'A'isha's brother were circumcised, 'A'isha was asked, "Shall we call someone to amuse them?" "Yes," she replied. 'Adi was sent for and he came to them. 'A'isha passed by the room and saw him singing and shaking his head in rapture - and he had a large head of hair. 'Uff!' she exclaimed, 'A shaytan! Get him out! Get him out!'"

حَدَّثَنَا أَصْبَغُ قَالَ‏:‏ أَخْبَرَنِي ابْنُ وَهْبٍ قَالَ‏:‏ أَخْبَرَنِي عَمْرٌو، أَنَّ بُكَيْرًا حَدَّثَهُ، أَنَّ أُمَّ عَلْقَمَةَ أَخْبَرَتْهُ، أَنَّ بَنَاتَ أَخِي عَائِشَةَ اخْتُتِنَّ، فَقِيلَ لِعَائِشَةَ‏:‏ أَلاَ نَدْعُو لَهُنَّ مَنْ يُلْهِيهِنَّ‏؟‏ قَالَتْ‏:‏ بَلَى‏.‏ فَأَرْسَلْتُ إِلَى عَدِيٍّ فَأَتَاهُنَّ، فَمَرَّتْ عَائِشَةُ فِي الْبَيْتِ فَرَأَتْهُ يَتَغَنَّى وَيُحَرِّكُ رَأْسَهُ طَرَبًا، وَكَانَ ذَا شَعْرٍ كَثِيرٍ، فَقَالَتْ‏:‏ أُفٍّ، شَيْطَانٌ، أَخْرِجُوهُ، أَخْرِجُوهُ‏.‏

This hadith is recorded by Imam Bukhaari in his non-Sahih work, al-Adab al-Mufrad, indicating that Bukhaari did not consider it sahih.  Moreover, the hadith mentions all manner of haram practices, including hiring some form of kahin to perform for the girls.  I feel this hadith is far too questionable to be even considered as evidence. 

However, the purport of this hadith may be considered with a hadith in Sahih al-Bukhaari, narrating that Washi recounted that “Hamza bin `Abdul Muttalib came out during the Battle of Uhud, and said to a man who challenged him, 'O Siba'. O Ibn Um Anmar, the one who circumcises other ladies! Do you challenge Allah and His Apostle?' Then Hamza attacked and killed him, causing him to be non-extant like the bygone yesterday.” 

Given this line of evidence, I would say that the most we can surmise is that calling someone a female circumciser or even the son of a female circumciser was an insult, and that such practices were viewed with scorn by the early community.

In sum, given the lack of expected evidence for a practice considered to be “makrumah” or “mukaramah and the lack of any other unquestionable evidence indicating the Prophetic Sunnah, I cannot support any finding that khifaadh is mubah, much less that it carries the hukm sharii of mustahabb.  If anything, the only argument that can be made on the basis of the evidence is that it is makruh.  However, the ahadith supporting a hukm of makruh are not of sufficient weight to overcome the hukm assigned to modifications of the body by Allah SWT in the Qur’an, i.e. haram.

Evidence from Persuasive Sources

While I do not feel that persuasive evidence including qiyas, maslahah, or the maqaasid ash-shariah are capable of naskh of a clear nass of the Qur’an, it is possible for such rational considerations to guide us in implementing the commands and prohibitions sent down to us by Allah SWT.

In that effort, we turn now the consideration of the maqaasid ash-shariah in implementing Allah’s command against mutilation or alteration of the human body.

The first maqsid is protection and preservation of deen.  It is not clear from the evidence of the Sunnah of our Rasulallah SAW that this practice carries a hukm at variance from the general hukm given all alternations or mutilations by the Qur’an.  If anything, the hadith of Umm Atiyyah and Umm Habeebah would indicate that the practice is makruh, and not mustahabb, as some claim.  Mukaramah is not a hukm sharii. 

Furthermore, it is not clear how this practice would protect the deen of an individual. Allah SWT made marriage mubah as a means to protect our chastity and honor.  No proponent has even mentioned how this practice would serve the worship of Allah or the practice of the deen in general. We shall examine this issue of chastity and honor when we discuss the maqsid of dignity.

The second maqsid is the protection and preservation of life.  Several form of this practice of female genital modification directly impact life.  The Type III infibulation or sewing up of the vagina, thereby preventing intercourse and the normal flow of blood and urine from the body has a direct impact on the quality of life and has resulted in death.  Not only have women died from the surgery to perform this Pharoanic circumcision, but even those who survive face complications, bleeding, infection, unimaginable pain, suffering, and death. [17] Moreover, Type II excision also has led to the same health risks, including death.  There can be no question that given the risk of death, infibulation, reinfibulation, and excision are haram.

And not only are infibulation, reinfibulation and excision haram in terms of the maqasid, they constitute clear mutilation of the human body.  As we have noted several times, mutilation or alteration of the body is haram.  The hadith evidence cited by proponents might be seen as making something analogous to male circumcision mubah, but no procedure performed upon males is analogous to infibulation and excision.  These practices are unquestionable haram and performing them on another, and even upon one’s self is haram, and is punishable under Shariah law. We will discuss the punishment below, in shaa llah.

But what about Type I female genital mutilation? 

Muwatta Malik » Blood-Money

Malik related to me that the generally agreed on way of doing things amongst the community about an accident is that there is no blood-money until the victim is better. If a man's bone, either a hand, or a foot, or another part of his body, is broken accidentally and it heals and becomes sound and returns to its form, there is no blood-money for it. If the limb is impaired or there is a scar on it, there is blood-money for it according to the extent that it is impaired. Malik said, "If that part of the body has a specific blood-money mentioned by the Prophet, may Allah bless him and grant him peace, it is according to what the Prophet, may Allah bless him and grant him peace, specified. If it is part of what does not have a specific blood-money for it mentioned by the Prophet, may Allah bless him and grant him peace, and if there is no previous sunna about it or specific blood-money, one uses ijtihad about it." Malik said, "There is no blood-money for an accidental bodily injury when the wound heals and returns to its form. If there is any scar or mark in that, ijtihad is used about it except for the belly-wound. There is a third of the blood-money of a life for it. " Malik said, "There is no blood-money for the wound which splinters a bone in the body, and it is like the wound to the body which lays bare the bone." Malik said, "The generally agreed on way of doing things in our community is that when the doctor performs a circumcision and cuts off the glans, he must pay the full blood-money. That is because it is an accident which the tribe is responsible for, and the full blood money is payable for all that in which a doctor errs or exceeds, when it is not intentional."

            Imam Malik states in this fatwa that the cutting off of the glans of the penis during khitaan is a crime.  The people of Madina considered such an act as analogous to accidental murder.  Therefore, similarly to manslaughter, the responsible party must pay diya or full blood money. 

            Two points are evident from this hadith.  First, cutting off the glans, that portion of the sex organ that experiences pleasure and which when stimulated, triggers sexual emissions, is haram.  Cutting off the glans renders a man impotent.  While cutting off a woman’s clitoris does not render her sterile, we do not fully understand the role of female emissions in fertility.[18] 

           

            Even proponents must recognize that if we are going to talk about equality for men and women under Shariah, then cutting off the “female glans,” the clitoris, is haram and must be compensated by diya.  Any risk of death from the surgery itself only adds to the hukm.

            So, what about what many consider to be female circumcision, Type Ia FGM?  Does removal of the clitoral hood or prepuce impact life?  Proponents claim that removing the prepuce is good for health.  Some claim that it prevents the husband from contracting chlamydia when performing cunnilingus or oral sex on a female.  Such a claim is ridiculous. Chlamydia is transmitted orally, anally and through vaginal sex.  If your partner has this condition, removal of the prepuce will not prevent its transmission, nor will it prevent a woman from contracting it.[19]

Others, including Imam al-Qaradawi, have claimed that it prevents immorality and promiscuity.  This is also absurd.  Some men have argued that male circumcision reduces the sensitivity of the penis. Several studies have been conducted on this issue, with varying results.[20]  While there may be a slight loss of sensitivity when the foreskin is removed, no one has claimed or suggested that there is a corresponding loss of libido. Some even claim an increase. Removing the foreskin does not affect male libido, so why would removing the prepuce reduce female libido, thereby preventing promiscuity?  This belief, unsubstantiated by medical science, only reveals to degree of superstition, tradition and male anxiety over female sexuality that drives this practice.

Moreover, this practice is more likely to cause health problem. Given the evidence from medical science, if the surgery is performed in unsanitary conditions by people who are not qualified, it can cause pain, bleeding and death.

           

            Furthermore, another consideration impacts our determination of the hukm of this practice – Sad al-Darar, blocking the doors to a greater harm.  In Sudan, the government banned Pharoanic circumcision, but continued to allow “Sunnah” circumcision.  Practitioners used this loophole to continue the practice with only slight modifications, resulting in continued suffering, pain and death.[21] If it is found that permitting this form of genital modification is leading to more evasive and haram forms, then it too must be declared haram.

           

            The third maqsid is protection and promotion of dignity, including lineage and honor.  Many proponents may suggest that this practice does just that.  As we have noted, one of the motivations for this practice is control over women’s sexuality in an effort to protect male honor.  However, this practice does not really succeed in that effort.

           

            For one thing, Type III and II FGM can result in prevent pregnancy or even lead to the death of mother and baby at the time of birth.  This has a direct negative impact on lineage.  And how honorable is it to marry your daughter to a young man who will be unable to have relations with his new wife, or who will lose a child and his wife in childbirth?  These practices are a cruel and disguised form of infanticide.  Instead of killing the girl at birth, we are killing them in child birth, and their unborn child with them.

           

            On the basis of the prohibition on female infanticide revealed in the Qur’an, and the clear nass declaring mutilation and alternation of the body to be haram, also found in the Qur’an, as well as the principle of Sad al-Darar, all forms of FGM, Types I, II and III are haram.

In regard to the fourth and fifth maqaasid, protection and promotion of aql and mal, we can see no benefit to recommend these practices.  If anything, such practices can lead to mental illness and the pain and suffering as well as disability and physical ramifications can only lead to loss of mal.

THE HUKM OF FEMALE GENITAL MODIFICATION

            Based on the above evidence and discussion, we find the following:

1. We find that any form of modification of the female genitals for other than medical necessity is mutilation, and constitutes an illegal alteration of the human body prohibited and made haram by the Qur’an in ayat 4:119 in Surah an-Nisaa’.
2. We find that what the WHO refers to as Type Ia FGM is haram under the prohibition against alteration of the body by the Qur’an in ayat 4:119 and even if, for the sake of argument, it should be found to be mubah, then haram by the operation of Sad ad-Darar.
3. We find that what the WHO refers to as Type Ib FGM is haram under the prohibition against alteration of the body by the Qur’an in ayat 4:119 and by the Sunnah, in the hadith ordering diya for the cutting off of the glans of the penis.
4. We find that what the WHO refers to as Types II and III FGM are haram under the prohibition against alternation of the body by the Qur’an in ayat 4:119.
5. These hukm apply equally to minors below the age of 18 as well as to adults.  It is illegal to do it to children in the West, but what about adult women voluntarily doing it?  It may be legal under Western law, but if it is haram under Islamic law, then it would be a sin.  And even if someone views this practice as mubah, the husband, not the parents, would have to be consulted and his approval obtained. Such a procedure should only be performed by a licensed medical doctor or surgeon, and only after consulting with at least two gynecologists as to the advisability of the procedure, particularly in consideration of child bearing and birth.  It should be noted that non-Muslims are now seeking forms of excision of the labia minora for cosmetic purposes.  This procedure is haram Islamically. Cosmetic labiectomies are haram because they are intended to be cosmetic.  This is not a loophole for those who care more about urf than Allah’s Shariah. 

WORD ON FITNAH

Finally, we remind everyone that fitnah akbar min al qatl, fitnah shadud min al qatl, fitnah ashdud min al qatl.  This discussion is meant to put forward a fiqh position given the sources of our deen and the minhaj we find the most sound.  Not all may agree.  Ikhtilaaf is permissible and no person putting forth a reasonable position should be abused in any manner.  Nor should people use differing decisions as fuel for their own egos in an effort to appear superior to others. Kibriyya is the sin of Shaytan.  Do not approach it.  We may disagree on a position, but in the end, we pray together, in jamaa for guidance from Allah.

And it is in that spirit of ijma consensus that we must understand that we are all ambassadors of Islam.  Everything we say is monitored, and not just by Malaikah.  People judge our deen by our behavior; they judge Allah SWT by your behavior.  Many unseen eyes are watching you.  What do you want them to see?

Any error contained herein is upon my head alone, may Allah SWT forgive me. Any truth is from the One who is Haq.  Allah Ta’ala Alim.

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[1] The school of Abu Hanifa hold that the natural hukm of any act is haram unless otherwise proved.  This is one reason for the prohibition on shell fish in the Hanafi school. The Hanifiyyah hold that the texts support eating fish, but not shell fish.  Perhaps we shall address this issue some day, but for now, if the minhaj is reasonable, then we respect differing positions, even if we do not agree.  Certainly, permissibility seems the stronger position, given the Qur’anic ayaat of 2:168 and 2:172, but as always, Allah Ta’ala Alim.

[2] The Qur’an refers to “yughaiyyrunna khalqa Allah” changing or altering Allah’s Creation.  The term mutilation is translated into Arabic as “bitr” or “at-Tashawiyyah.  Mutilation in retaliation or to avenge an injury is “al-muthlah.”  This kind of mutilation is absolutely haram.  Ali RAA prohibited his sons from mutilating Abu Muljam in retaliation for his murder of Ali.  He said, “Avoid mutilation, even on a vicious dog.” 

[3] “Pharaonic Circumcision (Infibulation),” Dr. Al-Amin Dawood (PhD), Website of Dr. Mahmoud Ahmad Fora, 2005.

[4] In fact, the Israeli government tried to use this as a reason to ban immigration and automatic citizenship to Ethiopia’s “black” Jews. 

[5] “Global Strategy to Stop Health Care Providers From Performing Female Genital Mutilation,” (WHO, 2010) p. 1; “Eliminating Female Genital Mutilation,” (WHO, 2008) p.4.

[6] ”US Proposes Nicking Genitals as ‘Compromise’ for FGM in Western Countries,” Lucy Westcott, Newsweek, http://www.newsweek.com/fgm-compromise-nick-western-countries-429250, Accessed 07/19/2017.

[7] “Global Strategy to Stop Health Care Providers From Performing Female Genital Mutilation,” (WHO, 2010) p. 1; “Eliminating Female Genital Mutilation,” (WHO, 2008) p.4.

[8] “Global Strategy to Stop Health Care Providers From Performing Female Genital Mutilation,” (WHO, 2010) p. 1; “Eliminating Female Genital Mutilation,” (WHO, 2008) p.4.

[9] “Global Strategy to Stop Health Care Providers From Performing Female Genital Mutilation,” (WHO, 2010) p. 1; “Eliminating Female Genital Mutilation,” (WHO, 2008) p.4.

[10] At-Tirmidhi records that it was Umm Umaarah who asked the question.  The muhadithun have reconciled this with the idea that Umm Salamah may have asked the question on behalf of Umm Umaarah.

[11] Please refer to Appendix I for a search of all hadith referring to circumcision.

[12] Al-Furu’ Min al Kafi, Vol 6, Al-Kalini, (Dar al Kutub al-Islamiyy, Tehran, 1981).

[13] It should be noted that Allah SWT has treated other laws revealed previously in a similar manner.  Allah SWT revealed the legislation regarding stoning for adultery in the Torah.  However, He modified and provided takhsis of this ruling in the Qur’an by revealing the verses of 100 lashes for zina, and the Sunnah understanding that stoning is for the married zani and lashes for the unmarried zani.  Some have argued that the Qur’an abrogated stoning by revealing the verses on lashing.  Perhaps, if Allah SWT gives us life, we can address this issue more thoroughly.

[14] The issue of beards, cutting, shaving, length etc and their hukm are beyond the scope of this paper.

[15] Islamicity, Question # 7395,  http://www.islamicity.org/qa/action.lasso.asp?-db=services&-lay=Ask&-op=eq&number=7395&-format=detailpop.shtml&-find, accessed 07/19/2019.

[16] Michigan, in 2017, has criminalized the practice under state law as a felony, punishable with up to 15 years in prison.

[17] “Global Strategy to Stop Health Care Providers From Performing Female Genital Mutilation,” (WHO, 2010) p. 1; “Eliminating Female Genital Mutilation,” (WHO, 2008) p.4; “Health Risks of Female Genital Mutilation,” (WHO, accessed 6/13/2017).

[18] It should be noted that it was not until the ‘70s that Masters and Johnson, the experts on human sexuality, first proposed that women has an orgasm and some form of emission.  However, the Qur’an noted it 1400 years earlier. 

[19] “Chlamydia: CDC Fact Sheet,”  Centers for Disease Control website, https://www.cdc.gov/std/chlamydia/stdfact-chlamydia-detailed.htm, Accessed 07/16/2017.

[20] :Does Circumcision Reduce Men’s Sexual Sensitivity,” Michael Castleman, M.A., Psychology Today, https://www.psychologytoday.com/blog/all-about-sex/201510/does-circumcision-reduce-men-s-sexual-sensitivity, Accessed 07/16/2017.

[21] “The Continuing Challenge of Female Genital Mutilation in Sudan,” A.R.Sharfi, M.A. Elmegboul, A.A. Abdella; (African Journal of Urology, vol. 19,  2013) pp. 136-140.