Does Kissing One’s Daughter-in-Law Lead to Hurmat al-Musahara?

Shafi'i Fiqh
Hanafi Fiqh
Maliki Fiqh

Answered by Ustadh Salman Younas

Question

A case has arisen in our town where a father-in-law suddenly and unexpectedly kissed his daughter-in-law. This all happened in seconds. After that, he is shameful and says that he didn’t do this intentionally and lustfully, and there is no erection or ejaculation, and he is ready to swear on the Quran that she is like my daughter and I have not done this intentionally.

Answer

I pray you are well.

My assumption is that you are asking about hurmat al-musahara, which is the non-marriageable kinship (mahramiyya) created between a person and the relatives of his spouse as a result of marriage and valid intercourse. Thus, a man who marries a woman and consummates the marriage is not permitted to marry her mother or any daughters she has from a previous marriage. Similarly, a person cannot marry the wife of his father. The Quranic verse affirming the basic idea of hurmat al-musahara is, “Do not marry those [women] whom your fathers married.” [Quran, 4:22]

Outside of a marriage context, however, the scholars differ on whether hurmat al-musahara is ever established. In other words, does adultery–fornication or touching–kissing outside of a marriage relationship establish this hurma?

The Hanafis say it does (adding specific conditions when it comes to touching/kissing), while the Malikis and Shafi‘is say it does not. In other words, if a father-in-law touched his daughter-in-law directly with lust, the marriage between the former’s son and the daughter-in-law would be broken according to Hanafis but not so according to the Malikis or Shafi‘is. [Ibn ‘Abidin, Radd al-Muhtar; Shirbini, Mughni al-Muhtaj; Dasuqi, Hashiya]

Given the sensitivity of the situation you describe and the scarcity of details you offer, I cannot offer a specific ruling for this case but only the following general advice:

  1. In the specific scenario you mention, people must avoid rushing to judge someone’s marriage as invalidated on account of this act, even if it has been clearly shown to have taken place.
    This is because
    (i) there is an established difference of opinion on the matter, and
    (ii) annulling someone’s marriage, in this case, the daughter-in-law and her husband (the father’s son), on account of someone else’s independent and unsolicited action seems highly unjust and problematic.
  2. People must take care to avoid making insinuations against the father-in-law, the daughter-in-law, and other family members or spreading gossip, hearsay, and the like.
  3. If the father-in-law is known to be an otherwise upright person and there is no reason to suspect that something is amiss, people should leave things be, accept him at his word, and let him and the family manage the issue.
  4. If there are reasonable signs and indications to suspect something unsavory and wrong taking place on the part of the father-in-law (e.g. abuse), this should be referred to the proper authorities. However, one should tread carefully before suspecting any such thing.

Because of the sensitivity of this situation, I would advise you to consult local scholars – people who are reliable, pious, have wisdom, and who have an understanding of family and community dynamics.

[Ustadh] Salman Younas
Checked and Approved by Shaykh Faraz Rabbani

Born and raised in New York, Ustadh Salman Younas graduated from Stony Brook University with a degree in Political Science and Religious Studies. After studying the Islamic sciences online and with local scholars in New York, Ustadh Salman moved to Amman. There he studied Islamic law, legal methodology, belief, hadith methodology, logic, Arabic, and tafsir. He is now in his final year of his PhD at Oxford University, looking at the early evolution of the Hanafi madhab.
His teachers include: Shaykh Faraz Rabbani, Shaykh Salah Abu’l Hajj, Shaykh Ashraf Muneeb, Shaykh Ahmad Hasanat, Shaykh Hamza Karamali, Shaykh Ahmad Snobar, Shaykh Ali Hani, Shaykh Hamza Bakri, Ustadh Rajab Harun and others.
Ustadh Salman’s personal interests include research into the fields of law/legal methodology, hadith, theology, as well as political theory, government, media, and ethics. He is also an avid traveler and book collector. He currently resides in the UK with his wife.