Translated by New Age Islam Edit Desk
17 April 2021
Translated by New Age Islam group of scholars from the original Arabic Chapter on Jihad in "Al-Mausu'ah Al-Fiqhiyah" i.e., Encyclopaedia of Islamic Jurisprudence (45 volumes). This is also known as "Kuwaiti Encyclopaedia for Islamic jurisprudence," as it is the fruit of an effort of the Ministry of Awqaf (religious matters) of Kuwait to build up an encyclopaedia of jurisprudence reconciling all four Sunni madhabs (schools of thought).
Main aspects covered in Part 2:
1. Seeking permission for Jihad from parents, the Creditor and Imam
2. Taking permission of Jihad back
3. Jihad Along with the leader of an army
4. Conditions for the obligation of Jihad (a) Islam (b) Intellect (Aql) (c) Puberty and (d) Masculinity
5. The Ability to have Equipment of Jihad
Seeking Permission For Jihad
(A) Permission From Parents
1. Jihad is not allowed except after permission is granted by the parents or by one of them if the other is a Kafir. However, if the enemies attack a land of Muslims and Jihad becomes Farz Ayn, then it is obligatory upon the Muslims to participate in Jihad, whether their parents grant them permission or not. But if a Muslim has fear of losing the life of any of his parents after he sets out for Jihad, then he is not allowed to leave his parents even when Jihad is Farz Ayn. This is because “Abdullah b. 'Amr reported that a person came to Allah's Apostle (peace be upon him) and sought permission (to participate) in Jihad, whereupon he (the Holy Prophet) said: “Are your parents living? He said: Yes. Thereupon he (the Holy Prophet) said: You should put in your best efforts (in their) service”. This indicates that kindness to the parents is preferred over Jihad because the origin of Jihad is Farz Kifayah which can be fulfilled by a sufficient number of Muslims. As for kindness towards parents, it is Farz Ayn that cannot be done by anyone other than their children. This was the reason that when a man said to Ibn 'Abbas (May Allah be pleased with him): “I have made a vow to battle the Romans but my parents have prevented me to do so”, Hazrat Abbas said: “Obey your parents. The Romans will find other than you to battle them”.
Similarly, it has also been narrated by ‘Umar and Uthman (May Allah be pleased with them). This was also supported by Imam Auzawi, Thauri and other people of knowledge. (Ibn Abidin 3/220, Jawahar-ul-Iklil 1/252, Hashiyat-ud-Dusuqi 2/175,176, Al-Muhazzab 2/229, Nihayat-ul-Muhtaj 8/57, Al-Mughni 8/358, and Al-Mahalli 7/292)
The majority of jurists hold the view that if both the parents or one of them is a Kafir, it is allowed for one to do Jihad without taking permission from them because the companions of the prophet (peace be upon him) including Abu Bakr Siddiq whose parents were Kafir used to participate in Jihad without taking permission from their parents. For example, Abu Huzaifa bin Utba bin Rabi’ah (may Allah be pleased with them) was with the prophet (peace be upon him) while his father was the leader of the polytheists (Mushrikin). (Fath-ul-Qadeer 5/194, Ibn Abidin 3/220, Hashiyat-ud-Dusuqi 2/175, 176, Jawahar-ul-Iklil 1/252, Al-Muhazzab 2/229, Nihayat-ul-Muhtaaj 8/57, Al-Mughni 8/359, Kashshaf-ul-Qina 3/44)
The reason is that the Kafir in the matter of the Deen (religion) is accused of preventing Jihad and that he intends to insult Islam.
The Hanafi Jurists held the view that with some exceptions also reinforced by some Maliki jurists, a Muslim cannot go out for Jihad without the consent of even the non-believer/kaafir parents or one of them. This is applicable when he goes out for Jihad, which is disliked as a cause of their hardship and fear. But if the reason for their not permitting is because of his fighting against their co-religionists, then in that case he can go out for jihad without the consent of his parents. However, if he fears that his parents will be destroyed again, he cannot go out for jihad. It is obligatory upon him to obey and take care of his parents in case they need his services, even if they are Kaafir (infidels). So, it is not permissible to give up Farz Ayn (compulsory duty of individual) for the sake of Farz-e-Kifayah (Sufficiency duty). Imam Thauri says this rule is based on the generality of the ruling of the Quran regarding obedience to the parents. (Ibn Abidin 3/220, Hashiyat-ud-Dusuqi 2/176, Al-Mughni 8/359)
If the parents of a Muslim are dead but his grandfather or grandmother is alive, in that case, he cannot go out for Jihad without the consent of any of his grandparents. The reason is that the grandparents are similar to the parents in kindness and obedience. In case his paternal grandparents permit him for Jihad but his maternal grandparents do not permit him, then, according to Hanafi Fiqh, he can go out for Jihad. This is because when the parents are not alive, permission will be sought from the paternal grandparents. As far as the maternal grandparents are concerned, they are like the rest of the people in case the paternal grandparents are not alive.
According to Shaafi’i school and an opinion of Hanbali jurists, If a Muslim’s father and grandfather or mother and grandmother are alive, it is better to take permission from both father and grandfather or both mother and grandmother, because, with the presence of the parents, the loyalty towards the grandparents does not diminish, nor does their compassion for him.
Some jurists of Hanbali and Shaafi’i schools give an opinion different from the above. They say it is not necessary to take permission from both father and grandfather or both mother and grandmother, because the grandfather and the grandmother may be prevented or shielded by the father and the mother from getting inheritance under the Al-hajb doctrine, owing to have the responsibility of taking care of and nurturing their children. (Al-Muhazzab 2/229, Nihayat-ul-Muhtaj 7/57, Raudat-ut-Talibin 10/211, Al-Mughni 8/359, Kashshaf-ul-Qina 3/44)
Taking permission from the parents is mandatory when Jihad is Farz-e-Kifaya. But the jurists of all schools of jurisprudence unanimously agree that when Jihad becomes Farz Ayn, every Muslim individual can go out for Jihad without the consent of the parents or grandparents, because leaving Farz Ayn is a greater sin and “there is no obedience to the creation in disobedience to the creator”.
Al-Awza'i said: There is no obedience to parents in abandoning the compulsory obligations such as Juma’ prayers, Hajj, fighting because they are acts of worship that are compulsory on him in particular, thus permission from parents is not considered, just as their permission is not considered for Salah”. (Al-Muhazzab 2/229, Nihayat-ul-Muhtaj 7/57, Raudat-ut-Talibin 10/211, Al-Mughni 8/359, Kashshaf-ul-Qina 3/44)
Taking Permission Of Jihad Back
2. The person who goes out for Jihad with the consent of the parents, then his parents take permission of Jihad back or they were Kafir before, who have now accepted Islam after his going out for Jihad and who do not permit now, the mujahid gets to know this situation, in that case, he must turn back if he has not yet entered into fighting and its place. This is the famous view in the Shafi’i and Hanbali schools, but when he fears that while going back to his house, his life or his money will be destroyed or the hearts of the Muslims will get broken, he, therefore, cannot return from Jihad. If he is incapable of turning back from Jihad, due to fear of losing life, but can stay at any town or village located on the way till the army comes back, he can stay there. The Shaafi’i School is also of the view that he cannot come back once he goes out for Jihad.
If he knows it after participating in the fighting, according to the popular view of Shaafi’i school, it is forbidden (haram) for him to return from Jihad. He ought to have patience, for there is the general application of the command [of Allah Almighty] about having patience and also because if he comes back from Jihad, it will lead to breaking the hearts of Muslims. The second view of the Shaafi’i School is that coming back from Jihad in the situation mentioned above is not forbidden, but rather it is mandatory. The third view of this school is that he can take either of the two options; coming back from Jihad or having patience. But if the enemy surrounds Muslims to attack them, Jihad becomes Farz Ayn and hence it is not obligatory to take permission from the parents. In this situation, abandoning Jihad in this situation will result in the annihilation of Muslims. Jihad then takes precedence over the right of the parents.
If his parents permit him to take part in the battle, with the condition that he will not fight, and if he attends the battle, Fighting will become Farz Ayn, so the obligation of fulfilling the condition made by the parents will fall from his part. Awzaai and Ibn Munzir, therefore, stated: since Jihad becomes his compulsory duty, there remains no obedience in abandoning Jihad, even though he went out for Jihad without the consent of the parents and participated in the fighting, he is not allowed now to come back from Jihad. (Al-Mughni 8/359)
(b) Permission from the Creditor
3. The jurists have unanimously agreed that the debtor cannot go out for Jihad without the consent of his creditor unless he pays the debt to the creditor. If the creditor permits him without acquitting him from the debt, then it is more commendable and preferable to repay the debts, but if the debtor goes out for Jihad in this situation, it will not be unfair. The same ruling is for the guarantor (Kafeel) if the matter relates to pay the debt to the creditor. Taking permission is equally mandatory for the guarantor of money and the guarantor of life.
If the debt is Mua’jjal (in which the appointed time is made for repaying the debts), it is not permissible to go out for Jihad without the consent of the creditor, in case he knows he will come back before the appointed time comes and meanwhile the creditor will not demand him to repay the debts. However, it is better to stay back from Jihad to repay the debts. (Ibn Abidin 3/221)
The Maliki School holds the view that permission has been stipulated in the matter of debts if the debtor can pay the debts by selling what he possesses. If the debtor is unable to do that or if the debt is Mua’jjal, the appointed time of which will not arrive before his coming back from Jihad, then he can go out for Jihad without the consent of the creditor. If the debtor knows the appointed time of paying the debts will arrive while his being on the duty of Jihad, it is mandatory for him to make his deputy who can pay the debts to the creditor.
The Shaafi’i School holds the view that the debtor cannot go out for Jihad if the time of paying debts is ongoing and he is not insolvent, so in this situation, he will have to repay the debts first and then go out for Jihad. In another view of this School it is held that even though he is not able to repay the debts, he cannot go out for Jihad without the consent of the creditor. However, the better view is that in case he is insolvent, he does not have anything to prevent him from going out for Jihad, but only with the condition that no demand will be made while his being on the mission of Jihad.
If the debt is Mua’jjal it is not permissible to prevent the debtor from going out for Jihad. This is the most preferable view. The second view is that this is permissible but only when the debtor appoints his guarantor for repaying the debts. The third view is that the creditor can prevent the debtor from going out for Jihad in case he does not appoint his guarantor. It is reported that it is permissible for the creditor to prevent him if the time of paying debt comes before the debtor returns from Jihad. (Raudat-ut-Talibin 10/210 and Nihayat-ul-Muhtaj 8/56-57)
The Hanbalis hold the view that going out for Jihad is impermissible without the consent of the creditor, whether the time of paying debt is ongoing or the debt is Mua’jjal. But he can go out for Jihad if he appoints someone as guarantor to pay the debt or he ensures the creditor that he will pay the debt to him on his return. This rule is based on a narration that a man came and said to the Messenger of Allah (peace be upon him), “Do you think if I am killed in the way of Allah, all my sins will be obliterated from me? The Messenger of Allah (peace be upon him) said: Yes if you were patient and sincere and always fought to face the enemy and never turning your back upon him, (all your lapses would be forgiven) except debt. Gabriel has told me this” (Related by Muslim 3/1501 on the authority of Abu Qatadah).
This is also because Abdullah bin Haram, who was the father of the well-known companion (Sahabi) Hazrat Jabir (may Allah be pleased with them), went out to the battle of Uhad while he was the debtor and he was martyred and his son paid the debt to the creditor. When the Prophet (peace be upon him) knew it, he praised Hazrat Jabir and said, “The angels were shading him (the father of Hazrat Jabir) continuously with their wings till you shifted him (from the field)” (Related by Bukhari (Al-Fatah 3/163 Assalafiyah) and by Muslim 4/1918 on the authority of Hazrat Jabir). The prophet (peace be upon him) said to his son Jabir: “Shall I give you news of what your father met Allah with?'" He said: "But of course O Messenger of Allah!" He said: 'Allah does not speak to anyone except behind a veil, but He brought your father to speak to Him directly” (Related by Tirmidhi 5/230 Al-Halabi)
And also because by Jihad is intended Shahadah (martyrdom) that results in the loss of life and then the right of paying debt remains unfulfilled as a cause of martyrdom. (Al-Mughni 8/359-360, KashshafulQina’ 3/44-45)
However, when Jihad becomes Farz Ayn, it is not obligatory for the debtor to take permission from the creditor, because performing Farz Ayn (compulsory duty of every individual Muslim) takes precedence over the matter of paying a debt. This case is with all the compulsory obligations (Furud-e-Aa’yan).
The Hanbalis have explained that in this case it is commendable (mustahabb) for the debtor not to be exposed to the front line of the fighting but he should stand in the middle of the last of rows, to pay the debt after he remains alive. (Ibn Aabidin 3/221, Haashiyat-ud-Dusuqi 2/175, Jawahar-ul-Iklil 1/252, Nihayat-ul-Muhtaj 8/57, Raudat-ut-Talibin 10/214, Al-Mughni 8/360 and Kashshaf-ul-Qina’ 3/45)
[c] Permission from Imam
4. The Shaafi’is and the Hanbalis have explained that the battle is Makrooh (objectionable) without the permission of the Imam or that of his special representative. The reason is that the battle takes place as per the need and the Imam or Amir knows this situation much better. This is not forbidden (haram) because this issue is not more than self-deception and the self-deception is permissible in Jihad.
The matter of the battle is in the hand of the Amir, as he knows much about the number of enemies, their hiding places and conspiracies, therefore it is essential to accept his opinion that is safer for the Muslims. But if the enemy suddenly attacks the Muslims and they are unable to take the permission, the permission will fall from their duty. Thus in that case they are allowed to fight without the permission of the Imam, otherwise while waiting for the permission of Imam to go out for Jihad, they will be killed and corruption will dominate.
The evidence in this regard is that when the infidels raided the she-camels of the prophet (peace be upon him), Salma Bin Akwah came suddenly from outside the Madina, chased the infidels and fought them without permission, whereupon the Prophet (peace be upon him) said: “the best of our footmen is Salma bin Akwa’” and he gave him the share of horseman and the footman. (Al-Muhazzab 2/229, Nihayat-ul-Muhtaj 8/60, Raudat-ut-Talibin 10/238 and Al-Mughni 8/363)
Jihad with the Imams
5. The majority of jurists have explained that Jihad will be done along with the leader of an army even though he is unjust due to committing the lesser of two evils. The reason is that if the leader is not supported, Jihad will discontinue and the infidels (kuffar) will attack and eliminate the existence of Muslims. The word of Kufr then will dominate. In that case, the victory of the Deen is mandatory. So, it is essential to support the leader in Jihad. A similar case is with an unjust ruler or faasiq but the treacherous invalidating the covenant will not have to be supported. (Ibn Aabidin 3/222, Jawahar-ul-Iklil 1/251, Hashiyat-ud-Dusuqi 2/174, Al-Mughni 8/350)
Conditions For The Obligation Of Jihad
6. The jurists unanimously agree that one of the conditions for the obligation of Jihad is that the person must be a follower of Islam because it is a condition for the obligations of all the branches (furu’). The infidel (kaafir) is unreliable in Jihad; therefore, the Imam does not permit him to go out for Jihad along with the army of Muslims. This rule is based on a report narrated by Aisha (may Allah be pleased with her) that the Messenger of Allah (peace be upon him) went out to Badr till he reached Harrah Al-Wabr where he was met by a man from the idolaters, about whom it was said he was brave and courageous. The Prophet (peace be upon him) said to him: “Do you believe in Allah and His Messenger?” He said: "No." He said: "Then return because we do not seek aid from an idolater (mushrik)” (Related by Muslim and Tirmidhi)
This is also because that the fear of damage is more than the hope of benefit, in the state of infidel going with the army of Muslims for Jihad. He is unreliable due to his possible cunning, scourge and wicked intentions. The war requires the faithful whereas the infidel is not among them.
(b) Intellect (Aql)
7. The insane is ghair-mukallaf (a person religiously irresponsible or unaccountable). Therefore, Jihad is not mandatory upon him.
8. Jihad is not obligatory upon the children who have not reached puberty. They are ghair-mukallaf (religiously unaccountable). It has been narrated by Ibn Umar in Sahih Muslim and Sahih Bukhari: “Allah's Messenger called me to present myself in front of him or the eve of the battle of Uhud, while I was fourteen years of age at that time, and he did not allow me to take part in that battle” (Related by Bukhari (Alfatah 5/276) and Muslim 3/1490)
The Messenger of Allah (peace be upon him) returned Usama bin Zaid, Al-Bara bin Aazib, Zaid bin Thabit, Zaid bin Arqam, Araba bin ‘Aws on the day of Badr and made them guards for the offspring and the women. (Sahih Bukhari –Alfatah 7/290 Assalafiya). Jihad is an act of worship performed by the body, so it is not obligatory upon the children and the insane to perform Jihad like fasting (Roza), prayer (Namaz) and Hajj.
9. Masculinity is a condition for the obligation of Jihad. This ruling is based on a report that Aisha (May Allah be pleased with her) said: “I said: ‘O Messenger of Allah, is Jihad obligatory for women?’ He said: “Yes: Upon them is a Jihad in which there is no fighting: Al-Hajj and Al- ‘Umrah.” (Related by Ibn Majah 2/968 Al-Halabi, authenticated by Ibn Khuzaima)
Therefore, Jihad is not obligatory upon the women but in three cases as mentioned earlier.
It is Makrooh (objectionable) to send women for Jihad along with mujahedin in an unreliable brigade, lest they should be exposed to destruction. The Imam prevents the women from going out for Jihad because they are attractive to the people. It is also that the women are not the persons of war as they do not have the right physical ability to fight. Thus with their participation in the battle, the victory over the enemy cannot be trusted.
The Hanbalis made here an exception to the wife of the Amir (leader) who may be present to attend to his needs or an old woman in cases of needs only, such as bringing the troops water and treating the wounded. This is because Al-Rabi’ the daughter of Mu’awwidh said: “We used to go out to fight with the Prophet (peace be upon him), bringing water and serving them, bringing back the wounded and the slain to Madinah” (Related Bukhari –Alfatah 6/80)
It is not unfair for women to go out with Muslims in a great number of reliable military forces because there is safety for women in the great number.
Jihad is not obligatory upon Khuntha mushkal (un-gendered hermaphrodite; this term is used in Islamic parlance to refer to a person who looks both male and female) lest this person be a woman. So there is no obligation when its ruling is based on doubt in the condition of masculinity for Jihad. (Al-Mughni 8/365,366)
(e) The Ability to have Equipment of Jihad
10.The Ability To Gain The Weapon Is A Condition For The Obligation Of Jihad.
Jihad is not obligatory upon the poor who do not have anything to spend in the way of Jihad, in addition to their family expenditure. This is because Allah Almighty says, “There is no blame on those who are infirm or ill or who find no resources to spend (on the cause) if they are sincere (in duty) to Allah and His apostle: no ground (of complaint) can there be against such as do right: and Allah is Oft-Forgiving Most Merciful.” (9:91).
If the fighting takes place at the gate of the country or its surrounding borders, Jihad becomes obligatory upon the poor Muslim too, because in that state he does not need anything to spend to reach that place. But If the fighting takes place at the distance of Qasr where prayer is shortened and he is not able to have any means to get access to that place, Jihad is not mandatory upon him, because Allah Almighty says, “Nor (is there blame) on those who came to thee to be provided with mount and when thou saidst "I can find no mounts for you", they turned back their eyes streaming with tears of grief that they had no resources wherewith to provide the expenses.” (9:92)
However, if the Imam of Muslims provides that poor Muslim with what is needed to reach the place of fighting, it is mandatory upon him to accept that and do Jihad, because whatever Imam offers him, becomes his due. But if the due is given to him by someone other than the Imam, he doesn't need to accept that. (Ibn Abidin 3/220, 221, Hashiyatud Dusuqi 2/175, Raudatut Talibin 10/210 and Al-Mughni 8/348)
Other Parts of the Article:
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