Secondary Issues Related to Istitaah

Section 3

Secondary Issues Related to Istitaah

 
Women and the Hajj
Are there any additional conditions for women with regard to performance of the Hajj? All the five schools agree that it is not required that a woman should obtain the husband's permission for the obligatory Hajj duty, nor may he prevent her from undertaking it. However, there is a difference of opinion about whether the Hajj is obligatory upon her or not if she does not find a husband or a mahram [12]to accompany her on the journey. According to the Imamiyyah, Maliki and Shafii schools, the mahram's company or that of the husband is not at all a condition, regardless of whether she is young or old, married or unmarried; since the mahram's company is a means of her safety, not an end in itself. Accordingly, we have two cases: either she feels confident of her security on the journey, or she doesn't. In the first case, the Hajj is obligatory upon her and the mahram's company is irrelevant. In the second case, she lacks the requirement of istita'ah, in spite of the mahram's company.
Accordingly, there is no essential difference between a man and a woman in this respect.
According to the Hanbali and Hanafi schools, the company of the husband or mahram isa provision for the woman's Hajj, even if she were old. It is not permissible for her to perform the Hajj without his company. The Hanafi school further stipulates the condition that her location should be at a distance of three days' journey from Mecca.
 
Bequest (al‑Badhl)
Al‑Mughni, a text of Hanbali fiqh, states: ."If a person bequeaths money to another, it is not binding upon him to accept it, and it does not make the recipient mustati (possessing istita'ah), irrespective of whether the bequeather is a relative or a stranger, regardless of whether the bequest suffices for the expenses of the journey and food. According to al‑Shafii, if the bequest is made by one's son, enough to enable him to undertake the Hajj journey, the Hajj becomes obligatory. This, because it enables him to perform the Hajj without having to bear a stranger's favour or without any accompanying encumbrance or harm.
According to the Imamiyyah school, if the bequest is an unconditional gift made without the provision of performing the Hajj by the recipient, the Hajj is not binding, irrespective of who makes the bequest. But if the bequest is made with the condition that one perform the Hajj, the acceptance of the bequest is binding and may not be rejected, even if the bequest is made by a stranger; since it makes him mustati to undertake the pilgrimage.
 
Marriage
What if one has only enough money either to get married or to perform the Hajj? Which of them is prior? The Hanafi text Fath al‑qadir (vol. II, "Bab al‑Hajj")mentions this question being put to Abu Hanifah, who, in his reply, considered that priority lies with the Hajj. The generality (itlaq)of this answer in which he gives priority to the Hajj, taking into consideration that marriage is obligatory under certain conditions, allows us to conclude that for Abu Hanifah delay in Hajj is not permissible.
According to the Shafi'i, Hanbali and Imamiyyah scholars, marriage has priority if there is likelihood of distress (haraj)or difficulty (mashaqqah)in refraining from marriage. In that case priority does not lie with the Hajj. (Kifayat al‑'akhbar, al‑Mughni, al‑Urwat al‑wuthqa)
Khums and Zakat
Payment of the khums and zakat has priority over the Hajj. The condition of istita'ah is not realized until both are paid off, like other kinds of debts.
 
Istita'ah by Chance
If someone travels to a place in the vicinity of the holy city of Mecca, on business or for some other purpose, and his stay continues until the Hajj season, and if it is possible for him to reach the Holy Ka'bah, he thereby becomes mustati. And if he were to return home without performing the Hajj, by consensus of all the schools, he is not relieved of the obligation.
  Notes:

[12] Mahram is a male relation with whom marriage is not permissible; viz; father, grandfathers, sons, grandsons, brothers, sons and grandsons of one's sister or brother, etc.