Is Maḥram a condition of Hajj being obligatory or a condition of performance?
A woman has enough money to go for Hajj but is unable to travel as she does not have a Maḥram who can accompany her. Later, this money is spent. She now has a Maḥram available to accompany her but she does not have enough money for Hajj. Is Hajj still necessary on the woman?
بسم الله الرحمن الرحیم
There is a difference of opinion among Ḥanafī jurists regarding this. This is based on the difference of opinion regarding the Maḥram being a condition of obligation (Sharṭ al-Wujūb) or a condition of performance (Sharṭ al-Adāʾ). According to Imam Muḥammad ibn Shujāʿ al-Thaljī (d. 266/880), ʿAllāmah Sarakhsī (d. ca. 490/1097), ʿAllāmah Kāsānī (d. 587/1191), ʿAllāmah Najm al-Dīn al-Zāhidī (d. 658/1259-60), ʿAllāmah Shurunbulālī (d. 1069/1659) and others, it is a condition of obligation, which means that in this scenario Hajj did not become necessary on her (al-Mabsūṭ, 4: 163; Badāʾiʿ al-Ṣanāʾiʿ, 2: 123; al-Bināyah, 4: 154; Marāqī al-Falāh, p. 728). However, according to Qāḍī Abū Khāzim ʿAbd al-Ḥamīd (d. 292/905), Imam Qāḍīkhān (d. 592/1196), ʿAllāmah Ibn al-Humām (d. 861/1457), ʿAllāmah Raḥmat Allah Sindī (d. 993/1585) and others, it is a condition of performance, which means that Hajj became obligatory on her. Thus, Hajj is obligatory on her and if she is unable to fund her Hajj, she is obliged to write a will requesting for Hajj to be performed on her behalf (Fatḥ al-Qadīr, 2: 418; al-Baḥr al-Rāʾiq, 2: 340). As there are both views regarding this, she should write a will and also make every attempt to perform Hajj.
قال الکاساني في البدائع (۲: ۱۲۳): وفائدة هذا الاختلاف تظهر في وجوب الوصية إذا خاف الفوت فمن قال إنه من شرائط الأداء يقول إنه تجب الوصية إذا خاف الفوت، ومن قال إنه شرط الوجوب يقول لا تجب الوصية، لأن الحج لم يجب عليه، ولم يصر دينا في ذمته فلا تلزمه الوصية، وقال: والصحیح أنه شرط الوجوب لما ذکرنا في أمن الطریق، انتهی۔
Allah knows best
3 Jumādā al-Ūlā 1438 / 30 January 2017
Approved by: Mufti Shabbir Ahmad Sahib