Current Legal Issues

Addendum to RULES OF HAJJ

1. Affordability

Q. A person performed umrah tamatu’ ( a visitation ritual that is obligatory before performing hajj) for another. Before embarking on hajj rituals, he realised that it was within his means, right from the time he set out from his home town, to perform [obligatory] hajj for himself. Should he carry on with completing what he was charged with, i.e. to perform hajj by proxy, or perform hajj for himself? On the assumption that it be obligatory on him to perform hajj for himself, where could he wear ihraam for umrah tamatu’? What will the ruling be if he became financially capable after the umrah that he performed as agent and before the onset of hajj rituals?

On the first assumption, if he was sure of his financial position that he would be able to perform hajj for himself the following year, he should fulfil what he was hired to do, i.e. complete hajj as a proxy. Otherwise, he should perform hajj for himself. Ihraam for umrah tamatu’ should be worn from the miqat (appointed place/s where pilgrims are supposed to put their ihraam on as a first step to performing umrah and hajj rituals). The same applies when he becomes financially capable after performing umrah on behalf of others, provided such capability comes about from sources other than the wages of ijarah.

2. Paying Khums on Expenses Arising from Hajj Journey

Q. Suppose khums was due on the money set aside for making the journey for hajj, would paying khums on this money become obligatory, so that hajj is rendered valid, provided khums is paid on the rest of the wealth after performing hajj?

It is not permissible to delay payment of khums as it amounts to usurpation that is haraam. However, if did he set khums due on hajj money aside and performed hajj, it is in order. However, he be deemed sinful for delaying payment of khums on the rest of his wealth.

3. Making a Will of Performing Hajj

Q. Is making a will, by appointing someone, who is physically disabled, to perform hajj, for the mukkalf after their death, in order?

[There are three assumptions]. Either the person who made the will did not know of the disability [ of the agent]; or it (disability) could have happened after the will had been made and he did not know of it until his death; or it could have come about after the death of the person who made the will. There is no problem with all these assumptions, i.e. the will is in order. However, if the will was made with the knowledge that the agent was disabled, yet the mandatory did not pay attention to this fact, the will is batil, and thus unenforceable. If, however, the subject of the will was hajjatul Islam (A Muslim’s maiden pilgrimage to Makkah, that is obligatory), combining the enforcement of the will and deputising an able-bodied person [to perform hajj] should be carried out. Expenses [for the hajj journey] should come of the estate of the deceased, as a matter of ihtiyat wujubi [luzumi]. If the hajj was mustahab (a voluntary, and meritorious, act of worship, as opposed to wajib - obligatory one), expenses arising from the enforcement of the will should come of the ‘third’ of [the estate].

4. Rules of Hajj by Proxy

Q.1 What is the ruling on appointing a proxy, whose physical disability, that could prevent him from carrying out an optional act, is well known? However, the person who made the deputation did not know this fact. The case concerns hajjatul Islam.

His hajj does not suffice. Also, it shall not compensate [for the actual act of worship].
Q.2 What is the ruling on hiring a physically disabled person in the matter of the previous question and the two assumptions discussed in Article 113 of Manasikul Hajj, in the case of a mustahab hajj?

There is no objection to [performing such a hajj] in the three suggested manners, if the proxy was physically able to perform accurate hajj for himself.
Q.3 Is it obligatory on the proxy to carry out acts of worship pertaining to hajj according to his taqleed ( the following, by a lay person, of a Mujtahid - Jurist - in matters of religious practice), or according to that of the person who made the deputation?

He should act according to his taqleed. Of course, the proxy should act according to the explicit instructions of the mandator. That is, the mandator could ask him to act according to what he believed correct. He also could leave it to what the proxy sees fit. The proxy, therefore, should, be within these bounds, unless he was sure of the imperfectness of acts of worship[according to the instructions of the mandator].
Q.4 A person wanted to perform hajj as a proxy on voluntary basis. Is it obligatory on him to uphold hajj rulings of his own ijtihad/taqleed, or those of the person he represents?

If there were no constraints imposed, he should perform hajj in pursuant to his own taqleed. Of course, in a situation of a will, where it stipulates [which taqleed] to follow, he should comply with the condition. If it was at variance with his taqleed or his own ijtihad, he should act according to ihtiyat, in that he should act according to both.

5. Rules of Appointing a Proxy

Q.1 Is it conditional for the validity of deputation that the proxy be known in person by the mandator?

If the would-be proxy was not known, the deputation is not in order. However, if he was known but the mandator does not know him in person, as in the case of appointing someone who is known by someone else, the deputation is in order.
Q.2 Is deputising organisations in order?

If the deputation is made for a certain title within the organisation, such as its head, it is in order, even though the holder of the title may change from time to time. The same ruling goes for any other title within the organisation. Otherwise, deputising the organisation per se is not in order.
Q.3 Is it permissible for one person to be the deputy of both the parties to a sales agreement?

There is no harm in it.
Q.4 A group of pilgrims co-opted a pilgrim to be their deputy to buy a sacrificial sheep for each one of them. Is it obligatory on him to appoint the sheep of each one of them when buying and slaughtering take place, or purchasing the number of sheep required and slaughtering them without appointing, would suffice?

It is necessary that the name of each pilgrim be pronounced when slaughtering the sheep that belongs to him takes place.
Q.5 During hajj pilgrims form committees to shoulder the responsibility of slaughtering sacrificial sheep. This is done to minimise the numbers going to the slaughterhouse, and thus lessening the chances of pilgrims getting separated from their fellow pilgrims. Since it is either impossible of difficult to take portions of the carcass for every pilgrim to eat some of it, where does this leave those who take it upon themselves to act as proxies for other pilgrims, [should they fail to carry back a share of the carcass]?

It is patently evident that it is not obligatory on the pilgrim to eat part of the carcass of the sheep he sacrificed.

6. Types of Umrah and their Rules

Q. A pilgrim performed umrah Mufradah and headed for Arafat, which is outside the parameter of the haram (holy precinct of Makka), to attend to some matters concerning pilgrims, not for wuquf (devotional stay at Arafat, as part of hajj rituals). Is it obligatory on him to wear ihram for an other umrah mufradah, if he has already performed umrah mufradah in the same month. On the assumption of it being obligatory, where should he wear ihram?

Going to Arafat and other places [outside the parameter of the haram] is permissible as long as the month [Thil Hijja] has not come to an end. If it did, the pilgrim has to wear ihram for another umrah from the nearest point [miqat] outside Makka.

7. Forbidden Acts During Ihram

  1. Covering the Head
    Q. If covering the head was recurrent in each ihram, should kaffarah (atonement or expiation) be repeated [for every incident]?

    It is likely that one kaffarah for each ihram would do.

  2. Shading
    Q.1 If someone else cast a shade over you while you are walking, is kaffarah obligatory?

    If one cannot get out of the shade, there shall be no kaffarah. If you were able to get out, and you did not, even for forestalling a harm, kaffarah is obligatory.
    Q.2 On the assumption that the pilgrim got under the shade of an umbrella [used by others] through no choice of his, is it permissible or not?

    It is permissible, unless there are reasons, as in the case discussed in the preceding question, that may require the opposite.

8. Rules of Kaffarah

Q. Suppose a kaffarah was due on a pilgrim. He delayed it, either deliberately or inadvertently, until he went back to his home town. Is the delay permissible? If he carries out the kaffarah after his return, does he need to uphold conditions of slaughtering sacrificial sheep as if it was done in Mina, i.e. the sheep be sound and healthy?

The places where a sheep can be slaughtered by way of kaffarah are either Mekka or Mina. The details of this matter have been discussed in article (283) of Mainsail Hajj. It is, therefor, obligatory to carry out slaughtering there. However, if this was not done until one’s return to his home town, slaughtering would be permissible wherever he liked. In this case, conditions of the sacrifice should not necessarily be adhered to.

9. Rules of Tawaf and its Prayer

Q.1 If one was in doubt as to whether or not he has performed tawafun nisa’ (Lit., women’s circumambulation), hajj or umrah mufradah, after his return from Mekka, after his return from Mekka, what should he do?

He should return and perform tawafun nisa’ by himself. If this was not possible or proved difficult, he should deputise someone else to perform it for him. [Approaching] women would not be halal, unless he carried it out either by himself or by proxy. Allah is All Knowing.
Q.2 Someone did not fulfil the conditions of carrying out any one of the laps of [the seven circumambulations around the Ka’ba] by, say, setting his face in the direction of the Ka’ba either on purpose or as a result of having been pushed around by the multitudes. Is it necessary that he retakes it and those laps that follow it?

If the mistake was done by entering the Stone, it is obligatory that he repeats the whole lap. If it was done as suggested by the question , he should carry on and rectify the mistake immediately, if he still was on the spot [where the incident took place]. As he starts a new lap, he should repeat the whole lap where the mistake happened. However, it is not obligatory to repeat the following laps.
Q.3 A pilgrim got mixed up as to the number of laps he has done either in tawaf or sa’y (seven laps of brisk walking between the mounts of Safa and Marwah - An obligatory part of hajj). Would that part of the lap where the doubt arose be sufficient [to be considered a complete one], or one should resume from wherever he remembered, or from the start of the lap?

There is no objection to continuing, albeit with the doubt lingering in the mind, if the doubt was removed after-wards.
Q.4 Would separating tawaf from its prayer to attend congregational prayer, which may last some half an hour, render tawaf batil?

Evidently, separating [tawaf and its prayer] by performing congregational prayer does not invalidate [tawaf]. There is no harm too in saying congregational prayer, even in between the laps of tawaf itself.
Q.5 A pilgrim realised, after taqseer (cutting one’s hair, clipping one’s moustache or beard, or cutting off nails) and ending the state of ihram that his tawaf was batil

If tawaf of umrah was rendered batil, this would not necessarily mean that one comes out from the state of ihram, albeit he has done taqseer. He should, therefor, take off all sewn clothes and abstain from all acts forbidden during ihram. Tawaf, its prayer sa’y and taqseer should also be performed. There is, however, no need for renewing ihram from the miqat.
Q.6 Does separating tawaf from its prayer render hajj or umrah batil?

Non-separation is common place, though this should be the case as a matter of ihtyat luzumi. However, infringement thereof would not render hajj or umrah incorrect per se. If, however, the infringement was committed deliberately, there should be a renewing of tawaf and its prayer as a matter of ihtiyat. Should time elapse so much so that he could not do anything, his hajj is rendered batil as a matter of ihtiyat. Also, the infringement could occur due to ignorance, of the wilful kind, relying on a legal proof, or due to forgetfulness that caused him not to remember until after prayer. In such cases tawaf and its prayer are in order and no penalty shall be against him. The same ruling applies if he was forced to separate the two [for reasons beyond his control].

10. Rules of Sa’y

Q.1 Would sa’y on level two [of the track between Safa and Marwah] be in order?

Yes, if the pilgrim, who is performing sa’y, ends up on either side of mounts Marwah and Safa and can still see them.
Q.2 Someone appointed a proxy to perform sa’y for him. The mandator, himself, should have been in a state of ihram, if he were to perform sa’y. Should the deputy perform sa’y in a state of ihram? What is the ruling if the deputy has volunteered to do it [i.e. not a hired one]?

It is not obligatory.
Q.3 What is the ruling on an incident, during sa’y, where a pilgrim turned his back on some [object or direction] which he should have faced?

Provided it is not too late for adhering to the succession [of the laps], he should rectify the situation by repeating the part where the doubt crept. Should it be too late for realising the succession according to urf, the entire sa’y must be repeated as a matter of ihtiyat luzumi.
Q.4 If a lap was repeated, would the niyyah be as adaa’ or qadhaa’?

The niyyah should be adaa’ not qadhaa’.
Q.5 A mukallaf performed tawaf at the start of sunrise or sunset. Is it permissible for him to delay sa’y until before sunset of the next day? That is, is it permissible to delay sa’y for such a period?

Optionally, it is not permissible to delay [sa’y] until the following day. A delay of few hours is in order.

11. Wuquf at Arafat and Muzdalifa

Q.1 If the mukallaf made niyyah for wuquf at Arafat or Muzdalifa, then slept the entire time, would his wuquf be in order?

If the niyyah was made at the start of time, then he slept till its end, it is in order. If the niyyah was made before the onset of time, then he slept the whole time, the [partial] wuquf shall not make up for the [prescribed] one, as a matter of ihtiyat .
Q.2 The opinion of the late Ayatullah al-Udhma as-Sayyid al-Khoei (May his soul rest in peace) was that it be sufficient for women to do wuquf at the holy Mash’ar [Muzdalifa], albeit nominal. What is your eminence’s opinion on this case?

Yes, it is sufficient for women to do nominal wuquf at Muzdalifa on the eve of Eid (Festivities of Sacrifice).

12. Staying Overnight at Mina

Q.1 A pilgrim in a state of ihram spent part of the twelfth night at Mina until morning. He then threw stones at Jamarat that morning. Is it possible for him to return home, to Makka, for the period from the same morning till before noon time to do nafr (hastening on) from there in the afternoon?

It is permissible for him to go to Mekka,, provided he leaves behind (at Mina some of his belongings, should he have any. It is obligatory on him, though, to return to Mina for nafr.
Q.2 A pilgrim, who is allowed to do rami (throwing stones at Jamarat) on the night of the twelfth [of Thil Hijja], did just that. He then went to Mekka. Is it obligatory on him to return to Mina the following day (12th of Thil Hijja before noon time to do nafr in the afternoon?

Yes, it is obligatory. If he wanted to go to Mina, where he has belongings, from Mekka, it is obligatory that he leaves some of it behind.
Q.3 A woman pilgrim did rami of the three Jamarat at the night of the 12th. She then returned to Mekka before dawn. Is it obligatory on her to return to Mina the following day (12th) for wuquf till noon?

The question assumes the permissibility of carrying out rami of Jamarat during night time. That is, for people who fear for themselves from the masses during day time, such as women, the feeble, and children. This is the opinion of Ustath (professor) as-Sayyid al-Khoei (May his soul rest in peace). However, the option to do rami during night time, barring Jamrah of Aqabah on the eve of the Eid, is confined to those who have reason not to stay at Mina for the rami during day time, such as the fearful, the shepherd, and the slave. As for women, the feeble, and sick, etc. who cannot perform rami during day time because of the crowds, they should deputise some other people to do it for them. On a premise of preferential ihtiyat, combining both, the rami during night time and doing it by proxy during day time, should be the norm.

Returning to the first assumption, it is not permissible for him who did the rami at the night of the 12th to do nafr after rami. Suppose they left Mina for Mekka to do tawaf or any other business, it is obligatory that they return to Mina to do nafr ba’daz zawaal of the 12th day. They also have the choice to do nafr after performing rami on the day of the 13th. This is further explained in the answer to the following question.
Q.4 A man pilgrim did the rami in the morning of the 12th. He then returned to Mekka. Should he return to Mina before zawaal?

If the pilgrim left Mina after doing rami, that is before zawaal, and he had some business to attend to there, such as leaving his luggage, he has to return. Rather, as a matter of ihtiyat, returning is obligatory, even though not out of necessity. However, it is patently evident that it is permissible to leave Mina on the first assumption, and, as a matter of ihtiyat luzumi, abstaining from it on the second assumption. At any rate, it is not necessary that he returns to Mina before zawaal, rather it is permissible to do it after zawaal too. This is because that which is of consequence is for nafr not to be done before zawaal. So returning to Mina after zawaal is in order so that his nafr from there be before sunset of the same day, or after rami on the 13th day.

13. Rules of Hady (offering) and Slaughtering

Q.1 Would prevention by law, of slaughtering at Mina be sufficient to realise the inability to carry out slaughtering there, especially, if there was reason to believe that a financial or physical harm could ensue, should the law be broken?

Fear of consequential harm for breaking the law should lift the obligation of slaughtering at Mina. It must not be understood, though, that slaughtering elsewhere would make up for slaughtering in it. However, what makes slaughtering elsewhere in order is [indeed] Mina’s small capacity to host all pilgrims as discussed in Manisikul Hajj. Apparently, slaughtering was made impossible, for the reasons mentioned in the question, not for the smallness of Mina? Therefor, combining both slaughtering outside Mina and fasting in lieu of hady (sacrificial offering) should be in order, as a matter of ihtiyat luzumi.
Q.2 A pilgrim secured the value of the share of the poor and the believers (mu’mineen) in the hady. What is the basis of evaluation? Should it be before or after slaughtering?

What is of importance is securing the value after slaughtering.
Q.3 Nowadays, it is not feasible to divide hady into three shares. Even the authorities prevent the owner of hady to eat from it. Similarly, they prevent distributing hady on the poor and the believers. What should one do?

What is obligatory, that must not be fluted for reasons of ihtiyat, out of the said division is giving the third [of hady] to the poor. As for eating of one’s own share and giving some of it out for present to others, they are not obligatory. Giving the third party by way of sadaqah can cease to be operative, should it become impossible or difficult.

14. Rules of Rami of Jamarat

Q.1 The presence of women and the feeble from men, when doing Rami of Jamarat, may result in putting t hem in harm’s way. It may lead to death because of the multitudes. Can a husband or others do rami for them?

As suggested by the question, women and the feeble perform rami of Jamrah of Aqaba themselves on the eve of Eid. If it is not feasible, they could deputise someone to do it for them during daytime. As for rami on the 11th and after, they should ask someone to do it for them. Their own rami during night time would not be sufficient. It is preferable that the mandator be present to witness rami.
Q.2 Would using a suspect pebble [i.e. for fear of it having been used for rami] be in order?

Yes, it is in order.
Q.3 Would rami, that is carried out from level two, be in order?

On the premise of ihtiyat, rami of Jamarat should be done to those parts of them that were at the time of the Prophet (s.a.w.) and the Imams (a.s.), which are now way away from the level of ground because of the height of their bases. If one was unable to do rami at those parts, as a matter of ihtiyat, one should resort to combining both the deputation to do rami on one’s behalf and doing rami at the exposed parts themselves.
Q.2 Is it permissible to do rami of Jamrah Aqaba from all sides?

It is obligatory to do ramy of Jamrah Aqaba itself, i.e. it is not permissible to throw pebbles at the wall supporting it from the back.

15. Shading for Men (This section has been reproduced from Manasikul Hajj.)

269. Shading is of two types:

  1. By using movable objects, such as umbrella, the roof of a coach or an aeroplane. This is not allowed for a man in a state of ihram, if the shade is above the head. However, it is allowed to remain under the shade of a moving cloud, or if the shade falls only on one side of his body. That is, pedestrians can walk beside a car producing a shade on one side or the like. As a matter of ihtiyat, passengers must avoid shade unless the shade from objects producing it from both sides is so short that it does not cover the head and chest of the pilgrim.
  2. By being under fixed objects like the shade of walls, tunnels, trees, mountains, etc. It is allowed for a pilgrim in a state of ihram, whether riding or on foot, to be under such shades. There is no objection to protecting oneself from the sun with one’s bare hands. However, as a matter of ihtiyat, it is better to avoid doing so.

270. Avoiding cover means no protection be used against the sun and rain; the latter is based on the premise of ihtiyat. However, there is no objection to protecting oneself from wind, heat, cold, etc., although avoiding protection is recommended as a matter of ihtiyat. It means that there is no harm in boarding a roofed bus during night, even if it is not raining, as a matter of ihtiyat. That is, even though the bus could provide protection from wind, for example.

271. What has been discussed of shading being not permissible is confined to walking to cover a distance. However, if the pilgrim, in a state of ihram, stops at a place, be it he has taken it for accommodation or not, such as stopping en route to meet friends or for rest, etc., there is no ishkal in his staying under the shade.

Q. Is it permissible for a pilgrim to seek cover under moving objects, once he settles in a place and goes about his business? To give an example, one could have settled in Mekka and went to the Grand Holy Mosque (al-Masjidil Haraam) to do tawaf or sa’y: or he could have settled in Mina and went to the abattoir or jamarat. Is it permissible for him to travel aboard a roofed bus, or use an umbrella?

To say it is permissible could be very problematic (mushkilun jiddan). Accordingly, ihtiyat should be adhered to, [i.e. One should avoid doing so].

273. If a pilgrim resorted to protecting himself against rain or sun, kaffarah is payable. Apparently, there is no difference whether the act was committed out of choice or due to an emergency. If the act [of protecting oneself] is committed more than once, kaffarah becomes payable for every day, as a matter of ihtiyat. However, apparently one kaffarah for every ihram will do. One sheep would suffice for a kaffarah.