Feeling the Breath Does Not Establish Hurmat Al-Musaaharah
Fatwa No: 430039

Question

Does hurmat mushaharah become established if a person does not touch the other person and also does not feel the heat but feels the air/breath coming from the other person's mouth.

Answer

All perfect praise be to Allah, The Lord of the Worlds. I testify that there is none worthy of worship except Allah, and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

Among those who extensively widened the scope of Hurmat Al-Musaaharah (the prohibition of marriage between a man and a woman’s female descendants and ascendants, or between a woman and a man’s male descendants and ascendants) are the jurists of the Hanafi School of Fiqh. They established it for many reasons, including (lustful) touching. Az-Zayla‘i  may  Allaah  have  mercy  upon  him said in Tabyeen Al-Haqaa’iq: “Fornication and lustful touching and looking establish Hurmat Al-Musaaharah... ” [End of quote] They underlined that the criterion for establishing Hurmat Al-Musaaharah because of lustful touching in the case when there is a barrier between them (like clothes for example) is that the hand feels the body heat of the touched person. In their statements that we have examined, they did not mention that the prohibition of marriage is established by simply feeling the breath coming from the other person’s mouth.

We believe that the preponderant scholarly opinion in this regard is that what is unlawful does not make unlawful what is deemed lawful under the Sharee‘ah. Thus, Hurmat Al-Musaaharh is not established by any of the things mentioned in the question.

Allah Knows best.

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