نوع مقاله : مقاله پژوهشی

نویسندگان

• حسین هوشمند فیروزآبادی ¹
• عاطفه ذبیحی بیدگلی ²

¹ نویسنده مسئول، سطح 4، حوزه علمیه قم، قم، ایران/ دانشیار گروه حقوق خصوصی، پژوهشگاه حوزه و دانشگاه، قم، ایران.

² استادیار گروه فقه و مبانی حقوق اسلامی، دانشگاه علامه طباطبایی، تهران، ایران.

چکیده

کلیدواژه‌ها

• حج
• مادر شیرده
• حکم وضعی
• شیردهی کودک
• استطاعت
• واجب مشروط

موضوعات

• فقه خانواده

عنوان مقاله [English]

The Obligatory and Situational Ruling of a Breastfeeding and Custodial Mother's Hajj

نویسندگان [English]

• Hussein Houshmand Firouzabadi ¹
• Atefeh Zabihi Bidgoli ²

کلیدواژه‌ها [English]

• Hajj
• breastfeeding mother
• situational ruling
• breastfeeding a child
• affordability
• conditional obligation

چکیده تفصیلی

Introduction

One of the influential issues in the jurisprudence of the obligation of Hajj for women is the situation of mothers who, due to the rights of the child and the duties they have towards their child, have to perform Hajj in conflict with their maternal obligations. From the fetal stage, the mother is responsible for protecting the life and health of the child, and after birth, breastfeeding and custody are among her duties. These duties are sometimes assigned to the mother by custom, sometimes by law, and sometimes by religious law. According to Article 1168 of the Civil Code of the Islamic Republic of Iran, taking care of children is the right and duty of the parents, and according to Article 1169 of the same law, the mother has priority over the father until the child is seven years old. According to Article 1172, neither parent has the right to refuse custody during the period of obligation, and the ruler is obliged to oblige them. In addition, Article 295 of the Islamic Penal Code holds the mother or nanny responsible for the harm or crime caused to the child if she refuses to breastfeed despite being able to do so. On the other hand, the obligation of Hajj is an immediate obligation, if one is able to afford it. Therefore, when the duty of custody or breastfeeding intersects with performing Hajj, the issue of conflict between the two obligations arises. The present research aims to explain the obligatory and situational ruling of a breastfeeding and custodial mother's Hajj in such circumstances by reviewing the views of jurists and its jurisprudential and fundamental foundations.

Method

The present study was conducted in a descriptive-analytical manner using library resources. The author, referring to the Imamieh jurisprudential texts and the opinions of early and contemporary jurists, examined the scope of the obligation of breastfeeding and custody and its effect on the religious affordability and the obligation of Hajj. Since in previous jurisprudential books, the issue of a "breastfeeding mother's Hajj" was not examined independently and was only raised as a general reference, this study, while collecting the opinions of jurists under the topics of Hajj, affordability and conflict, presented a comparative analysis of the views. For this purpose, the obligatory ruling of the mother's Hajj in the conditions of the obligation of breastfeeding and custody and then the situational ruling (the validity or invalidity of Hajj assuming its performance) were examined with reference to the opinions of Imamieh jurists and fundamental principles such as the theory of sequence and contiguity of the obligatory and situational ruling.

Results

The findings of the research show that in jurisprudential texts, the importance of breastfeeding for the child is so great that some jurists have considered it obligatory, even if its payment is paid by the father or from the child's property (Ameli, 1410AH, 5/452; Helli, 1387AH, 3/262). Some jurists, such as Allameh Helli, have stated that the implementation of the limits (Hodoud) on a breastfeeding woman is delayed until the end of the child's breastfeeding period (Allameh Helli, 1413AH, 3/628). However, the majority of Imamieh jurists believe that breastfeeding is not obligatory for the mother (Tousi, 1407AH, 5/130; Shobeiri Zanjani, 1419AH, 25/791; Bahjat, 1426AH, 4/100) and some have considered it merely immoral to abandon it (Najafi, no-date, 31/272; Haeri Tabatabaei, 1418AH, 10/515). Regarding colostrum (Laba), on which the child's life depends, some jurists have ruled that it is obligatory (Ameli, 1410AH, 176; Shahid Sani, 1414AH, 3/217; Saimari, 1420AH, 3/175). They believe that if a child dies without colostrum, it is obligatory to preserve its life and breastfeeding is necessary. However, if it is possible to use the milk of another woman, this obligation becomes sufficient (Shobeiri Zanjani, 1419AH, 25/7927).

The jurists have also listed other cases in which breastfeeding becomes obligatory: When the child does not accept the breast of another mother, the milk of another mother is incompatible, or a woman cannot be found to breastfeed and the father is also unable to pay (Haeri Tabatabaei, 1418AH, 12/145). In such cases, if the mother is affordability, the main question is whether the obligation of breastfeeding prevents the affordability and obligation of Hajj or not.

Contemporary jurists have two main views in response to this question:

1. a) Breastfeeding does not prevent the affordability, but if there is no alternative, the urgency of Hajj is lost (Ayatollah Bahjat and Ayatollah Tabrizi).
2. b) Breastfeeding, if obligatory, is an obstacle to the affordability, but it does not remove it; after the obstacle is removed, Hajj becomes obligatory (Ayatollah Khamenei, Ayatollah Fazel Lankarani and Ayatollah Makarem Shirazi).

In the second view, if breastfeeding causes hardship for the mother or child, the affordability is not achieved and Hajj is not obligatory for her. However, if a nurse or nanny can be substituted, Hajj is obligatory and the duty of breastfeeding is delegated to someone else. Thus, the rule of the existence of a substitute in a conflict gives preference to an obligatory that has a substitute; that is, Hajj is preferred over breastfeeding if there is a substitute for breastfeeding.

From the point of view of some jurists, such as the author of Orwah, if a religious obstacle occurs before the affordability is achieved, it is an obstacle to the obligation of Hajj, but if it occurs after the affordability is achieved and is more important than Hajj, it is a removal of obligation (Tabatabaei Yazdi, 1409AH, 2/453). On the other hand, a group such as Husseini Shahroudi (no-date, 1/142) do not see any difference between the priority and the delay of an obligation and consider the criterion to be the degree of importance.

The reasons for those who believe that breastfeeding is an obstacle include:

1. The priority of a rational condition over a religious condition; if an immediate obligation arises before the affordability, it takes precedence.
2. The absence of an order to perform Hajj despite the presence of a religious obstacle; because the affordability depends on the absence of an obstacle (Mousavi Khoei, 1418AH, 8/35).
3. The priority of an absolute obligation over a conditional obligation; because Hajj is conditional on the affordability (Madani Kashani, 1411AH, 1/178).
4. Narratives; including the narrative of Hamad from Halabi: "Whoever has the ability to perform Hajj but does not perform it without having something that does not count as an excuse…" (Hor Ameli, 1409AH, 11/26).

Those who argue for the absence of hindrance, emphasizing the criterion of "the most important and important", believe that the affordability does not include the absence of another obligation and that whenever two obligations conflict, the most important one takes precedence and in the event of equality, the person performing the obligation has the choice (Madani Kashani, 1411AH, 1/178). They believe that the concept of affordability includes financial, physical, temporal and intellectual affordability and if another obligation becomes a rational obstacle to performing Hajj, Hajj will not be obligatory (Ghadiri, 2015; Raisi, 2017).

In the second part of the findings, the situational ruling of a breastfeeding mother's Hajj is examined under the assumption of the obligation of breastfeeding. There are two opinions in this regard:

1. a) Hajj for a mother is valid and meritorious (Ayatollah Bahjat and Ayatollah Sistani). Based on the theory of sequence, if a mother abandons the most important one (breastfeeding) and performs the important one (Hajj), even though she has committed a sin, her Hajj is valid (Mousavi Khoei, 1411AH).
2. b) Hajj for a mother is not meritorious (Ayatollah Fazel Lankarani, Ayatollah Makarem Shirazi and Ayatollah Khamenei). Based on the conjunction of the obligatory and situational ruling, leaving the most important obligation invalidates the important act.

In jurisprudential analysis, if the doctor considers performing Hajj to be harmful to the child, the conflict between the two obligations is certain and the most important one (preserving the child's life) must be performed. However, in the case of performing Hajj, its validity or invalidity depends on the acceptance or rejection of the theory of sequence. The fundamentalists who support sequence, such as Mirza Shirazi, Fesharaki, Naeini, and Hakim, believe that the obligation of the important one is tied to leaving the most important one, so if the mother leaves the most important obligation, the important obligation (Hajj) becomes actual and her Hajj is valid (Naeini, 1376AH, 1/373; Tabatabaei Hakim, 1416AH, 5/131). On the other hand, opponents of the sequence, such as Akhound Khorasani, consider it unreasonable and consider such a woman's Hajj invalid (Akhound Khorasani, 1410AH).

Contemporary jurists such as Imam Khomeini, Bahjat, Khoei, Nouri Hamedani, and Fazel Lankarani, generally believe that a breastfeeding mother's Hajj is sufficient for Hajj al-Islam based on the theory of sequence (Eftekhari Golpayegani, 1428AH, 1/84). Ayatollah Vahid Khorasani also considers it probable that it is sufficient and considers it prudent to repeat the Hajj. On the other hand, Seyed Yazdi states in "Orwah": "If the Hajj journey requires abandoning an obligatory act or committing a forbidden act, this Hajj is not separate from Hajj al-Islam" (Tabatabaei Yazdi, 1409AH, 2/457). This Fatwa is contrary to his acceptance of the sequence in other chapters (Ibid., 1/724).

Conclusions

In the conflict between two religious obligations, namely the obligation of Hajj and maternal duties such as breastfeeding and custody, determining the obligation requires a detailed jurisprudential analysis of the affordability and the rules of the conflict. Based on the findings of this research, the obligation of breastfeeding in Imamieh jurisprudence is limited to cases of necessity and if there is an alternative, the mother will not be obliged to breastfeed. Assuming the obligation of breastfeeding, if an obstacle arises before the realization of the affordability, Hajj is not obligatory for the mother; but if it occurs after that and it is more important than Hajj, it is abrogated. The jurists who accept the obstacle of breastfeeding have relied on the precedence of the rational condition and the religious obstacle; on the other hand, those who argue for the absence of obstacle rely on the rule of the most important and important and the realization of the conflict.

In the situational ruling, if a mother goes to Hajj by abandoning the most important obligation, her Hajj is invalid based on the contiguity of the obligatory and situational ruling, but based on the theory of sequence, Hajj is valid and sufficient for Hajj al-Islam. The result is that the validity or invalidity of a breastfeeding mother's Hajj depends on the jurist's principled basis for accepting or rejecting the theory of the sequence. Accordingly, assuming a conflict between maternal duties and performing the Hajj, if the sequence is accepted, the mother's Hajj is valid and meritorious, even though she has committed a sin; however, if the sequence is rejected, her Hajj is invalid and it must be repeated after the obstacle is removed.

Author Contributions

All authors participated equally in the design of the study, writing the article, and editing the final versions.

Data Availability Statement

Data available on request from the authors.

Acknowledgements

The authors of the research would like to express their gratitude to the Islamic Studies Research Center of Alzahra University, which provided spiritual, financial, and scientific support for this study.

Ethical Considerations

Cases such as falsification of data, distortion of results, plagiarism, and any other unethical behavior have been strictly avoided in this study.

Funding

This article is one of the articles extracted from the research project entitled "Hajj; Women's Rights and Family Duties", which was commissioned by the Islamic Studies Research Center of Alzahra University and received financial, spiritual, and scientific support from them.

Conflict of Interest

The authors declare that there are no conflicts of interest in connection with this study. In other words, there were no financial or personal interests that could affect the results of the study.