Bulugh al-Maram

Lexical Explanation:
«أَوْقَالَ» In this, the subject is the pronoun «هُوَ», which is hidden within it and refers back to the man previously mentioned.
«اَلرَّجُلُ يَمَسُّ» This is the subject and predicate.
«بَضَعَةٌ» Both fathah and kasrah are permissible on the “ba”, and the “dad” is quiescent. Its meaning is “pieces of flesh.”
«مِنْكَ» That is, it is a piece of your body. Just as other limbs of the body are, so too is this, like the hand, foot, etc., a piece of flesh. It is well known that a person does not perform ablution (wudu) by touching any other part of his body, so similarly, there is no need for ablution upon touching the private part (awrah). Whoever reflects upon this statement will understand that it was based on analogy and ijtihad, and at that time, there was no clear ruling given regarding the affirmation or negation of touching the private part.

Benefit:
Ali bin Abdullah, who is famous by the name Ibn al-Madini, was born in 161 AH and passed away in 224 AH. He is among the teachers of Imam Bukhari and Imam Abu Dawud, rahimahumullah. Imam Tirmidhi has said that many Companions and Followers (Tabi‘in) were not of the opinion that ablution (wudu) is required after touching the private part («مس ذكر»). This is also the view of Ibn al-Madini, Ibn al-Mubarak, and the scholars of Kufa. On the other hand, many Companions and Followers are of the opinion that ablution is nullified by touching the private part («مس ذكر»). Their evidence is the narration of our master Busrah radi Allahu anha, which is coming ahead. Imam Ahmad and Imam Shafi‘i, rahimahumallah, also hold this view.

Narrator of the Hadith:
SR Our master Talq bin Ali radi Allahu anhu ER, his kunyah is Abu Ali. There is a fathah on the “ta” and the “lam” is quiescent. His lineage is as follows: Talq bin Ali bin Talq bin Amr al-Hanafi, al-Suhaymi, al-Yamami. When the Prophet sallallahu alayhi wa sallam arrived in Madinah al-Munawwarah, he immediately presented himself in his service and participated with great enthusiasm and zeal in the construction of the Prophet’s Mosque. It is said that fourteen Prophetic hadiths are narrated from him.

English Commentary:
1:
There is an apparent contradiction between this hadith and the previous hadith. The hadith scholars have resolved this contradiction by stating that the narration of Talq ibn Ali precedes the narration of Busrah radi Allahu anha. Therefore, the hadith of Talq radi Allahu anhu is abrogated. As for those Tabi‘in who do not consider the ablution (wudu) to be nullified by touching the private part, the answer is that the hadith of Busrah did not reach them. Some scholars have resolved this contradiction by stating that the hadith of Busrah pertains to touching without any barrier (obstruction), and the hadith of Talq pertains to touching with a barrier (covering).

2:
Among all the chains of transmission for this hadith of Talq ibn Ali radi Allahu anhu, the chain through Mulazim is the best—not that the hadith of Talq is superior to the hadith of Busrah.

Note:
(There is some discussion regarding Qays in the chain of transmission, but most scholars have declared him trustworthy.)

Benefits and Issues:
As for the narration of Taliq bin Ali radi Allahu anhu, the hadith scholars have critiqued it. (See the detailed works.) If, for the sake of argument, this hadith is authentic, it is abrogated, because the hadiths of Busrah and others are considered to be later than it. This is because they accepted Islam later than Taliq. [كتاب الاعتبار للحازمي: 150]

Furthermore, even if both hadiths are reconciled, our position is still established. For example, the hadiths of Busrah and others can be applied to touching without a barrier, and the hadith of Taliq can be applied to touching with a barrier. Thus, in Sahih Ibn Hibban and others, it is narrated from Abu Hurairah radi Allahu anhu that the Messenger of Allah sallallahu alayhi wa sallam said: «اذا افضي احدكم بيده الي فرجه، وليس بينهما ستر ولا حجاب فليتوضاء» [صحيح ابن حبان 1118] “When any one of you touches his private part with his hand and there is no barrier or covering between them, he should perform ablution (wudu).”

Imam Hakim, Ibn al-Sakan, and Ibn Abd al-Barr have declared this hadith authentic. [تحفة الاحوذي: 227/1]

So it is clear that «مس الذكر من غير حائل» is in a state of incomplete ablution. «وهو الحق ان شاء الله تعالىٰ والحق احق ان يتبع ناقص الوضوء».

After this, it should be clarified that this ruling is just as applicable to women as it is to men, because they are the counterparts of men, and there is no evidence that would allow us to specify this ruling for men alone. Moreover, in Musnad Ahmad, al-Bayhaqi, and others, it is narrated from Abdullah bin Amr that the Prophet sallallahu alayhi wa sallam said: «ايما امراة مست فرجها فليتوضا» “If a woman touches her private part, she should perform ablution (wudu).” [مسند امام احمد : 223/2، سنن الكبري للبيهقي : 228/1 طبع جديد]

And regarding this hadith, the leader of the hadith scholars and the physician of hadith in its defects, our master Imam Bukhari rahimahullah, has given this verdict: «هو عندي صحيح» [كتاب العلل للترمذي]

Commentary: Firstly: This hadith is to be understood as referring to the state of laziness, and in the statement of the Prophet sallallahu alayhi wa sallam «انما هوا بضعة منك» “It is a part of your body,” there is a subtle indication that ablution (wudu) is not nullified in the state of laziness. Because it is only this state that has been likened to another part of the body. In contrast, if the private part is touched with desire, then it is not similar to other parts of the body, because desire does not occur in other body parts. This is such an evident reality that it cannot be denied. Therefore, this is by no means a definitive proof for the Hanafis, because according to them, ablution is nullified in both cases (with or without desire). Another way to reconcile and harmonize is that if the private part is touched directly, without any barrier such as clothing, then ablution is nullified; but if there is a barrier, then ablution is not nullified. This hadith indicates this.

❀ Sayyiduna Abu Hurairah radi Allahu anhu narrates:
«قال رسول الله صلى الله عليه وسلم اذا افضي احدكم بيده الي فرجه، وليس بينهما ستر ولا حجاب فليتوضاء»
The Messenger of Allah sallallahu alayhi wa sallam said: “When any one of you touches his private part and there is no barrier between his hand and the private part, then he should perform ablution.” [صحيح ابن حبان رقم الحديث 1115], [بيهقي ص 130، 131 ج 1], [مستدرك حاكم ص 138 ج1], [دارقطني ص 1447 ج1], [طبراني صغير ح 110], [طبراني الاوسط ح 8829، 6664، 8904]
Imam Ibn Hibban, Imam Hakim, Allamah Dhahabi have declared it authentic, and Ibn Abd al-Barr has called its chain sound.

Secondly: If this reconciliation and harmonization is not accepted, even then there is no contradiction between them, because there is a possibility that the narration of Sayyiduna Talq radi Allahu anhu is abrogated, as the hadith of Talq ibn Ali radi Allahu anhu is earlier, and that of Abu Hurairah radi Allahu anhu is later. And according to the Hanafis, among two conflicting hadiths, the earlier one is considered abrogated. Qawa'id fi 'Ulum al-Hadith, p. 47. Therefore, according to the Hanafi principle, the hadith of Talq ibn Ali radi Allahu anhu is abrogated.

◈ Imam Ibn Hibban rahimahullah says:
«خبر طلق بن على الذى ذكرناه خبر منسوخ، لأن طلق بن على كان قدومه على النبى –صلى الله عليه وسلم- أول سنة من سني الهجرة، حيث كان المسلمون يبنون مسجد رسول الله –صلى الله عليه وسلم- بالمدينة، وقد روى أبو هريرة إيجاب الوضوء من مس الذكر على حسب ما ذكرناه قبل، وأبو هريرة أسلم سنة سبع من الهجرة، فدل ذلك على أن خبر أبى هريرة كان بعد خبر طلق بن على بسبع سنين»
“That is, the narration of Sayyiduna Talq ibn Ali radi Allahu anhu is abrogated, because Talq ibn Ali radi Allahu anhu came to the Prophet sallallahu alayhi wa sallam at the beginning of the first year of Hijrah, when the Muslims were building the Prophet’s Mosque, and the hadith of Abu Hurairah radi Allahu anhu regarding the obligation of ablution is later. As we have already mentioned, Abu Hurairah radi Allahu anhu accepted Islam in the seventh year of Hijrah. So this indicates that the hadith of Abu Hurairah radi Allahu anhu is seven years after the narration of Talq radi Allahu anhu.” [صحيح ابن حبان زير رقم الحديث 1119]
↰ After this, Imam Ibn Hibban has written, with an authentic chain, the incident of Sayyiduna Talq ibn Ali radi Allahu anhu accepting Islam. It happened at the beginning of the first year of Hijrah, and on that very occasion he heard from the Prophet sallallahu alayhi wa sallam the hadith about touching the private part not nullifying ablution, as is established from [سنن نسائي رقم الحديث 165].

◈ Mawlana Abdul Hayy Lakhnawi Hanafi says:
«احتمام ان يكون طلقا سمع هذا الحديث بعد اسلام ابي هريرة مردود برواية النسائي فانها صريحة فى ان سماعه هذا الحديث كان فى يوم قدومه»
“That is, the possibility that Sayyiduna Talq radi Allahu anhu heard this hadith from the Prophet sallallahu alayhi wa sallam after Abu Hurairah radi Allahu anhu had accepted Islam is rejected due to the narration of al-Nasa’i, because it is explicit that Talq ibn Ali radi Allahu anhu heard this hadith on the day he came to Madinah.” [السعاية ص260 ج1]
↰ This is why he has written emphatically:
«والانصاف فى هذا البحث انه ان اختير طريق النسخ فالظاهر انتساخ حديث طلق لا العكس .»
“In this discussion, justice demands that if the method of abrogation is adopted, then it is apparent that the hadith of Talq is abrogated, not the opposite.” [التعليق الممجد : ص 55]

Mawlana Abdul Hayy Lakhnawi rahimahullah’s Acknowledgment of the Truth:
Mawlana Abdul Hayy Lakhnawi rahimahullah has written a lengthy discussion of about twelve pages on this issue in al-Si’ayah. Thus, after mentioning the arguments of both sides, he says:
«قلت هذا تحقيق حقيق بالقبول فإنه بعد إدارة النظر من الجانبين يتحقق أن أحاديث النقض أكثر وأقوى من أحاديث الرخصة وأن أحاديث الرخصة متقدمة»
I say that this research (that the narration of Talq ibn Ali is abrogated) is worthy of acceptance, because after examining the arguments of both sides, it is established that the hadiths indicating nullification of ablution are greater in number and stronger, and the hadiths indicating non-nullification are earlier. [السعاية : ص 267 ج1]

After this, he strongly refutes the attitude of Allamah Tahawi and ‘Ayni, expressing astonishment at their partisan approach, which is noteworthy, and in the end he writes clearly:
«والحاصل ان كلمات القائلين بالنقض فى هذا الباب قوية وكلمات الطائفة الاخري لا توازيها فى القبول نعم فى مسالة نقض لمس امرآة كلاما القائلين بعد م النقض قوي لشهادة حجة من الاخبار والاثار بذلك فاعلم ذلك ولقد اطنبنا اكلام فى هاتين المسالتين ليتحقق الحق ويبطل الباطل ولو كره الكارهون وبالله اعتمدو عليه فليتوكل المتوكلون»
“In summary, in this chapter, the view of those who say ablution is nullified is stronger, and the view of the other group is not equal to them in acceptability. However, those who hold that touching a woman does not nullify ablution, based on reports and traditions, their view is strong. Understand this well, for we have discussed both these issues in detail so that the truth becomes clear and the falsehood is exposed, even if those who dislike it continue to dislike it. I place my trust in Allah, and those who rely should rely only on Him.” [السعاية ص 268 ج1]

165. Commentary:

➊ The style of narration indicates that touching the private part does not invalidate ablution (wudu). The Hanafis have used this narration as evidence and have not counted touching the private part (mas dhakar) among the nullifiers of ablution. However, this narration is from a much earlier period, because when Talq bin Ali radi Allahu anhu came, the Prophet’s Mosque was under construction. The Prophet sallallahu alayhi wa sallam also assigned him the task of making mortar. Thus, this narration is from the first year after the Hijrah, whereas the narration of Busrah is from much later, because Busrah bint Safwan radi Allahu anha accepted Islam in the year of the conquest of Makkah, 8 AH. Also, Abu Hurairah radi Allahu anhu accepted Islam in the year of the Battle of Khaybar, 7 AH, and he too mentions that touching the private part invalidates ablution. Therefore, in terms of evidence, the stronger position is that if the private part is touched without a barrier (i.e., without clothing), ablution is invalidated, because in the narration reported from Abu Hurairah radi Allahu anhu, this is explicitly stated. See: [مسند أحمد : 333/2]

Allamah San‘ani rahimahullah states that the narration of Busrah is also supported by other hadiths narrated by seventeen (17) Companions. Among them is Talq bin Ali himself, from whom the narration that touching the private part does not invalidate ablution is also transmitted. For further details, see: [ذخیرۃ العقبی شرح سنن النسائي : 362/3 - 372 ، تحت حدیث : 164]

➋ Men and women are equal in this ruling, because the Messenger of Allah sallallahu alayhi wa sallam said: “Whoever among men or women touches their private part, let them perform ablution.” [مسند أحمد : 333/2]

➌ In this issue, the same ruling applies to both the front and rear private parts.

➍ Just as touching one’s own private part invalidates ablution, so does touching someone else’s private part.

➎ Women at home assist children with cleaning after relieving themselves (istinja), and regarding this, the stronger position is that it should also be considered a nullifier of ablution. For details, see: [المجموع : 30/2 ، والمغني : 244/1]

Commentary: (1) (Wahuwa minka)
It is a part of you, meaning just as touching any other part of the body does not break ablution (wudu), similarly, touching the organ of urination also does not break ablution.

(2)
This hadith of Talq radi Allahu anhu is authentic.
However, this ruling is abrogated.
Talq radi Allahu anhu came to Madinah Munawwarah immediately after the Prophet’s migration, when the Prophet’s Mosque was being constructed.
Imam Ibn Hazm rahimahullah, declaring this to be abrogated, has stated: The first point is that the ruling mentioned in this hadith corresponds to the situation before the command regarding ablution upon touching the private part was revealed, and there is no doubt that as long as the ruling declaring something as a nullifier (of ablution) has not been revealed, the Prophet sallallahu alayhi wa sallam could not command ablution on its basis.
When this is the case, then when the Prophet sallallahu alayhi wa sallam gave the command for ablution, the first ruling was certainly abrogated.
And it is not permissible to act upon a definitely abrogated ruling by leaving a definite abrogator.
The second point is that from the Prophet’s sallallahu alayhi wa sallam statement that “it is a part of your body,” it is clearly established that this was said before the command for ablution was revealed, because if it were after, the Prophet sallallahu alayhi wa sallam would not have used these words, but rather would have stated that the (ruling of ablution) has been abrogated.
From this, it is understood that at that time, no ruling had been revealed regarding this, and thus the status of the private part was like that of other limbs. (Al-Muhalla: 1/239)
Some scholars have also reconciled between the two narrations in this way: that the narration in which it is mentioned that ablution is not broken, its meaning is touching over the garment, in which case ablution is not broken.
And the narration in which breaking of ablution is mentioned, it refers to touching without a garment, in which case ablution will be broken.