Question :
A gentleman has asked whether the following ruling (masʾalah) given by a scholar is correct: If a man intends to have intercourse with his wife and, in a state of lust, accidentally touches his daughter, does his wife become forbidden (ḥarām) to him for life?

Answer:

The noble jurists (fuqahāʾ-e-kirām) have explained this ruling: If, on a dark night, a man wanted to wake his wife for intercourse (jimāʿ), and accidentally, with lust, his hand touched a mushtahāt girl (a girl who has reached the age of desirability, i.e., not less than nine years old), then that girl's mother becomes forever forbidden to this man.

Similarly, if a woman wanted to wake her husband and, with lust, her hand touched a boy who was murāhiq (a boy close to puberty, i.e., not less than 12 years of age), then in such a case, she becomes forever forbidden to her husband.
Regarding this ruling—whether a man's hand touches a girl with lust or a woman's hand touches a boy with lust—there are certain conditions that must be met in both scenarios for the prohibition (ḥurmah) to be established.
Conditions for the Establishment of Prohibition (Ḥurmat al-Muṣāharah)

If these conditions are met, the prohibition by affinity (ḥurmat al-muṣāharah) will be established, and that woman will become forever forbidden to her husband. If these conditions are not met, ḥurmat al-muṣāharah will not be established.

1 Direct Contact or Thin Barrier: The touch must be on the bare body or over clothing thin enough that it does not prevent the body heat from reaching the hand. If there is a thick barrier (ḥāʾil) that prevents the body heat from being felt by the hand, the prohibition (ḥurmah) will not be established, even if the touch was accompanied by lust.

2 Presence of Arousal (Intishār): Lust must be aroused on both sides or either side during the touch. For a man, lust means experiencing an erection (intishār) at the exact moment of touching, or an increase in a pre-existing erection. If there was no erection at the time of touching but it occurred after removing the hand, or if there was already an erection but it did not increase upon touching, then the ḥurmah will not be established.

3 Age of Desirability: The girl must be mushtahāt (not less than nine years old), or the boy must be murāhiq (a boy who has not reached puberty himself, but boys of his age generally have; the minimum age for this is 12 years).

4 Absence of Ejaculation (Inzāl): The ḥurmah will only be established if ejaculation (inzāl) does not occur while in this state of arousal. If ejaculation occurs due to lust while touching, the ḥurmah will not be established. [Because the desire ended right there, the touch is no longer legally classified as a prelude to intercourse]

Conclusion:

It is necessary to consider all these conditions. The conclusion is that if a man touches a girl's bare skin or touches her through a soft/thin barrier (ḥāʾil) with lust, and in this state, an erection occurs or a pre-existing erection increases, and ejaculation does not occur—whether these actions (afʿāl) were done intentionally, accidentally, or out of forgetfulness—ḥurmat al-muṣāharah will inevitably be established. However, if any of these conditions are unfulfilled, the ḥurmah will not be established.
Furthermore, the establishment of ḥurmat al-muṣāharah does not mean the marriage contract (nikāḥ) is automatically annulled. The marriage itself does not break, but the woman becomes forever forbidden to the husband. It then becomes obligatory (farḍ) upon the husband to leave her (i.e., issue a divorce). If he does not leave her, he is a severe sinner.
And Allah the Exalted knows best

by Mufti Sajid Ali Misbahi
Translated by [Admin]