Meaning of Khāṣṣ and Its Types

Ruling of Khāṣṣ

If one says زيد عالم, then زيد is khāṣṣ and admits no further qualification; عالم is likewise khāṣṣ and admits none. The two words establish that Zayd is knowledgeable.

The First Subsidiarity upon the Ruling of Khāṣṣ

Imām al-Shāfiʿī and Imām Abū Yūsuf hold that calmness in rukūʿ and sujūd is farḍ; the ṭarafayn¹ hold that it is wājib. Imām al-Shāfiʿī and Imām Abū Yūsuf cite the ḥadīth in which an Arab fell short in his ṣalāh, and the Prophet ﷺ commanded him to pray again, three times in succession. The ṭarafayn, by contrast, hold that the āyah ﴿اركعوا واسجدوا﴾² is khāṣṣ and so admits no further qualification.

The Second Subsidiarity upon the Ruling of Khāṣṣ

Imām Mālik holds that continuity is farḍ; Imām al-Shāfiʿī holds that order and intention are farḍ; the Aṣḥāb al-Ẓawāhir hold that tasmiyah is farḍ. The Aḥnāf hold that none of these is permitted as farḍ, since the āyah ﴿فاغسلوا وجوهكم﴾⁴ is khāṣṣ and admits no further qualification.

The Third Subsidiarity upon the Ruling of Khāṣṣ

Imām al-Shāfiʿī holds that ṭahārah is a condition for ṭawāf; Imām Abū Ḥanīfah holds that it is not, since the āyah ﴿وليطوفوا بالبيت العتيق﴾⁵ is khāṣṣ and admits no further qualification. Imām al-Shāfiʿī cites a ḥadīth from al-Tirmidhī in which the Prophet ﷺ said that ṭawāf of the House resembles ṣalāh: if ṭawāf resembles ṣalāh, why is ṭahārah not a condition for it? The Aḥnāf reply that the resemblance is not general (ṭawāf has neither sujūd nor rukūʿ) and read the ḥadīth to mean that ṭawāf resembles ṣalāh in reward.

The Fourth Subsidiarity upon the Ruling of Khāṣṣ

Imām Abū Ḥanīfah holds that the word قروء in the āyah ﴿والمطلقات يتربصن بأنفسهن ثلاثة قروء﴾⁶ means ḥayḍ; Imām al-Shāfiʿī holds that it means ṭahārah. Imām Abū Ḥanīfah's reading turns on the word ثلاثة, which is khāṣṣ and admits no further qualification. By consensus ṭalāq is initiated only in a state of ṭahārah, so when a woman is divorced in ṭahārah, two readings are possible: either the ṭahārah in which the divorce fell is counted within the ʿiddah, or it is not. On the first (Imām al-Shāfiʿī's view), her قروء are two and a fraction, since she will have spent some part of that initial ṭahārah before the divorce. On the second, the ṭahārah before the divorce is excluded and her قروء are three and a fraction. Either way the count is not a complete three; and since ثلاثة is khāṣṣ, its meaning is not satisfied. Three complete periods of ḥayḍ, by contrast, can be counted from the close of the ṭahārah in which the divorce fell.

The preceding four examples show that khāṣṣ cannot be modified by ẓannī evidence.

The First Objection and Its Answer

If a woman receives three ṭalāq from her first husband, marries another, is divorced by him, and then returns to the first, the first may again take her as his wife with three ṭalāq at his disposal; on this Imām Abū Ḥanīfah and Imām al-Shāfiʿī agree. The disagreement falls where the first husband had not given three ṭalāq but fewer: when she returns, does the first husband have three ṭalāq at his disposal, or only the remainder from the first marriage? Imām Muḥammad and Imām al-Shāfiʿī hold that he has only the remainder, so if he had given one ṭalāq, he has two left; if two, then one. Their reading turns on the word حتى, which is khāṣṣ and indicates a terminus, so they take the marriage to the second husband, not its consummation, to be the relevant restriction.

The Shaykhayn⁸ hold that he has three ṭalāq at his disposal, but not by way of the āyah ﴿حتى تنكح زوجا غيره﴾⁹. They take the relevant condition to be consummation, not mere marriage, by the ḥadīth of عسيلة (honey): the wife of Rifāʿah came to the Messenger of Allāh ﷺ and said that Rifāʿah had divorced her three times, that she had married ʿAbd al-Raḥmān, and that she had a complaint against him; the Prophet ﷺ asked, "Do you want to return to Rifāʿah?" She said, "Yes." The Prophet ﷺ said, "No, until you taste his (ʿAbd al-Raḥmān's) honey and he tastes your honey", that is, consummation with the second husband is a condition for her return to the first. The word "return" in the ḥadīth shows a return to the prior state, and the first husband accordingly has three ṭalāq at his disposal.

The Second Objection and Its Answer

If a thief steals an object and his hand is cut, and the object is later found with him, it is returned to the owner by consensus. If the object has been destroyed, however, Imām al-Shāfiʿī holds that compensation is required whether the object was destroyed by itself or whether the thief deliberately destroyed it. Imām Abū Ḥanīfah holds that compensation is owed only in the second case. Imām al-Shāfiʿī's argument: in the āyah ﴿والسارق والسارقة فاقطعوا أيديهما جزاء بما كسبا﴾¹⁰ the word قطع is khāṣṣ and fixed for a known meaning. The Aḥnāf reply that the negation of preservation runs through جزاء بما كسبا, not through فاقطعوا: the cutting itself is the recompense for the stolen item, the recompense is complete with the cutting of the hand, and no further compensation falls on the thief.

These two examples set out the objection of those who hold that khāṣṣ may be modified by ẓannī evidence; the Aḥnāf reply that khāṣṣ cannot be so modified.

The Fifth Subsidiarity upon the Ruling of Khāṣṣ

On our view, ṭalāq may correctly follow خلع (the wife's payment in exchange for divorce). Imām al-Shāfiʿī holds, by contrast, that خلع itself dissolves the marriage, leaving no marriage on which a subsequent ṭalāq might fall. The Aḥnāf hold that the ف in the āyah ﴿فان طلقها﴾¹¹ is khāṣṣ and fixed for a specific meaning, namely commentary and explanation, supplied here to clarify the giving of ṭalāq after خلع. Ṭalāq, accordingly, is correctly given after خلع.

The Sixth Subsidiarity upon the Ruling of Khāṣṣ

Imām Abū Ḥanīfah holds that the mufawwiḍah is owed an equivalent mahr; Imām al-Shāfiʿī rejects this on the ground that the nikāḥ itself was not valid for want of a guardian. On Imām al-Shāfiʿī's view, when a woman whose marriage is authorised by a guardian without a stipulated mahr (or with a stipulation that there is none) is concerned, mahr becomes wājib only on consummation; if either party dies before consummation, mahr is not wājib. The Aḥnāf hold the full mahr to be wājib on the contracting of nikāḥ, irrespective of consummation and irrespective of whether one of the parties has died, because ب is khāṣṣ in the āyah ﴿ان تبتغوا باموالكم﴾¹³ and is fixed for a known meaning, namely linking and connection. To act upon khāṣṣ is wājib and admits no further qualification.

The Seventh Subsidiarity upon the Ruling of Khāṣṣ

The amount of the mahr is fixed by Allāh; the slave has no warrant to give less than what has been fixed. Imām al-Shāfiʿī holds the amount of mahr to be entrusted to the slave's judgement and choice, so that he might in principle give dust as mahr. The Aḥnāf hold that the word فرضنا in the āyah¹⁴ is khāṣṣ, and to act upon khāṣṣ is wājib. They cite the ḥadīth in which the Prophet ﷺ informs us that no mahr is less than ten dirhams.

These three āyāt supply the evidence and explanation for the preceding three examples. The first, ﴿فإن طلقها فلا تحل له﴾¹⁵, shows that ṭalāq may correctly be given after خلع; the second, ﴿ان تبتغوا باموالكم﴾¹⁶, that mahr al-mithl is wājib for the woman who married herself without a stipulated mahr and without a guardian; and the third, ﴿قد علمنا ما فرضنا عليهم﴾¹⁷, that mahr has been stipulated in the sharīʿah and that the slave has no warrant to give less.

The preceding three examples establish that it is wājib to act upon khāṣṣ.

Footnotes

1. Imām Abū Ḥanīfah and Imām Muḥammad. ↩

2. Qurʾān 22:27. ↩

3. To start with the words bismillāh. ↩

4. Qurʾān 5:6. ↩

5. Qurʾān 22:27. ↩

6. Qurʾān 2:228. ↩

7. Qurʾān 2:230. ↩

8. Imām Abū Ḥanīfah and Imām Abū Yūsuf. ↩

9. Qurʾān 2:230. ↩

10. Qurʾān 5:38. ↩

11. Qurʾān 2:230. ↩

12. A woman who married herself without specifying a mahr and without a guardian. ↩

13. Qurʾān 4:24. ↩

14. Qurʾān 33:50. ↩

15. Qurʾān 2:230. ↩

16. Qurʾān 4:24. ↩

17. Qurʾān 33:50. ↩