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Stabilizing female Cirumcision.
Dr : Fathiya Hasan Margani
ورقة د. فتحية حسن المترجمة
In the name of allah , the most beneficent , the most merciful
Ministry of Religious Endowment and National Guidance
Aseminar titled : Standards and values of controlling harmful
traditional practices (i.e.female circumcisions.)
Apaper titled :
Stabilizing female Cirumcision.
Prepared by :
Dr : Fathiya Hasan Margani
College of Islamic sharia and law
Omdurman Islamic University.
Khartoum :13th may 2002
In the name of Allah , the most beneficent , the most merciful
.
Praise be Allah , and prayers and peace be upon our prophet
Mohammed , and on to his family and companions.
And…
Circumcision is one of nature's disposition qualities ,
affirmed by the prophet's Sunna , it is an old , and
well-known practice to Arabs and others.
Even before the coming of Islam . In this paper we consider
these following two axis:
First : the definitions of circumcisions both lexically and
idiomatically .
Entry circumcision , to circumcise both boy and girl .The noun
is circumcision, and the transitive verb of it is
circumcised.The term is different in the Arabic language but
it could be applied and used for both males and females
In English .Circumcision , is the part circumcised of a male's
, or the part
To be removed of a female's genital parts
Abu Mansour stated :( Ii is the part ,which is removed out of
a male, and female's genital parts.) And as the prophet's
traditional Hadith states ( If the two circumcised parts met.
Then it is obligatory to perform the ritual ablution) 1* The
term {the circumcised parts} suggests a genuine dual not an
alteration one.2* It is start that female circumcision is like
male's circumcision , so the term can be applied and used for
both sexes.3*
The idiomatic definition of circumcision:-
Abi Hajer said : ( circumcision is the infinitive of
circumcised ,meaning to cut or remove .And circumcision is the
removal of a particular part from a particular organ.)4* Al
Mawardi said regarding male's circumcision : ( Males
circumcision is the removal of skin covering the prepuce.) And
he said on female's circumcision : ( It is the removal of the
skin at the top of her vulva ,above the male's entrance. Whish
is like a rooster's crest,and it is proper to cut the
transcendent skin without ablation .) And Ibn Taymiyya said on
female's circumcision :( To circumcise her ,is to cut of the
transcended skin whish is like a rooster's crest.) This
definition was also agreed upon by both ,Mohammed Ali El Bar
in his saying : (Circumcision is the removal of the prepuce on
the penis ,or the covering layer of skin on a female's
clitoris.) 1*And by Dr : Mohammed Bin Mohammed El Mukhtar El
Shingitti on circumcision surgery : (It is the surgery
concerning the removal of the piece of skin covering the
prepuce ( the top of the penis) for men (or the cutting of the
lowest part of skin on the top of the vulva for women.) 2* Dr
:Hamid Rshwan
And other doctors stated that : (Sunna circumcision means to
cut the skin ,or the prepuce covering the clitoris.) 3*
Thus ,it is clear that female circumcision by sharia law is
like male's circumcision , which is the removal of skin
covering the prepuce for males and the one covering the
clitoris for females .
Second: the Origin of legitimacy and manner of circumcision :
(A) The traditional Hadith concerning circumcisions are
general for both males and females ,some of them are :
1- Stated on the Sahihes , upon Abu Hurrayra's narration:
(Five things are in accordance with Alfitra : to be
circumcised , to shave the pelvic region , to pull out the
hair of the armpits , to cut short the mustache , and to clip
the nails.) 1*
2- What's reported on Ibn Abbas's may god be pleased with him
on the glorified and Almighty's saying : (And remember that
Abraham was tried by his lord with certain commands , which he
fulfilled .) 5* He said : ( God has afflicted him with modesty
.five on the body .The ones on the head are :trimming of the
mustache , rinsing out the mouth , cleaning the nose trails
with water ,Brushing the teeth , and parting of the hair .And
the five on the body are : Nail clipping , shaving of pubic
hears , circumcision ,Depilatting the armpits , and the
washing of feces and urine tracts with water.) 6* These
scripts indicate that circumcision is one of nature's
disposition , and that it is general for males and females
alike .And there hasn't been a script restricting the act to
males alone .
(B) The particularized Hadith on females circumcision are :
1- On behalf of um Attiya the supporter that while a women was
circumcising in Al Madina the Prophet said : ( Don't exhaust
for it is fortunate for her , and desired by her husband.)7*
Abu Daoud claimed that the Hadith was weak on the narration of
Mohammed Bin Hassan Al Kufi and he is weak. And this Hadith
was also delivered by the narration of Al Alla Bin Al Arra ,
and he is a proper attributer . It was also brought out by Al
Allbani on the proper Hadithes series under the number (922)
2- There were two witnesses to Annas's narration and to um
iman's with El Shiekh , on a book called { Al-Ageeg} and in
another book with Al Dhahak bin Gais 1*. And it was also
mentioned on [ Al Mustadirk] by Al Hakem, the saying of the
prophet may prayers and peace be upon him , to the supporters
women : ( Dye by dipping ,and circumcise , but don't exhaust.)
it is proper and was delivered by Al Haithamy on [ Muja'm Al
Zaw'aid ] and was brought out by Al Tabarani .
And on the evidence supporting Um Attiyah's report , was the
narration of Al Bukhary , in the [Al Adab Al Mofrad] .That Um
Muhajir may Allah's pleasing be upon her said : (I was
captured along with other Roman women . Osman Bin Affan
offered Islam to us , so me and another made impraced Islam ,
he ordered us to be circumcised , and we used to serve him may
Alla be pleased with him.)
But Ibn Al Munzir weakened the Hadith regarding circumcision
by saying: ( There aren't any benefits or proper Sunna that we
can refer to and follow concerning circumcision) 2*
This was refutable by the narration of Al Arra and the number
of Hadith and evidence stated , which strengthens and confirms
the narration of Mohammed Bin Hassan Al Kuffi .For the prophet
had confirmed females circumcision , and didn't forbid the
women to perform the rituals , but he ordered her to complete
, which means to cut from above , and he prevented her not to
exhaust , which means not to cut too extremely .And Ibn Al
Gaiem Al Juziyah said : ( There is significance in the Hadith
to the order of minimizing the amount to be cut.)3 *
Third : scholars 'decisions and views regarding circumcision:
Scholars have stated three views on circumcision:-
The first view :-
Circumcision is obligatory for males and females .This is
proper and well known to Al Shafiya , Al Hanabila , Ibn
Taymiyya , Ibn Al Gaiem Al Juziyah . The Shafiya said is
obligatory .And Attah said: ( A mature person doesn't became a
complete Muslim , unless circumcised .) And they said : ( A
man should order his Muslim wife for circumcision , just as he
order her for prayers.) And they based the obligation on the
following :-
(A) On Allah the glorified and Almighty's saying :( Follow the
ways of Abraham the true in faith) 4 *
It was presented on both Sahihes ( Abraham circumcised himself
when he was eighty years old and he circumcise himself with an
adze.) And Abu Al Sheikh presented on [ Al Ageega] through
Musa Bin Ali Ibn Rabah , upon his father's words :( That
Abraham may peace be upon him asked to be circumcised when he
was eighty years old , but he shied ,so he was circumcised
with adze.) And so the incident indicates necessity .
(B) Circumcision is painful , and pain exists only for
necessary measures.
(C) Circumcision involves exposure of the genital organs , and
exposure is forbidden , but only allowed for necessary
measures .Ect.
The second view:-
Circumcision is a Sunna for both males and females , which is
the faith of Al Hanafiyah , Al I mmam Malik , and Ahmed said
.presented on [Al Dour Al Mukhtar ]: ( Circumcision is a
Sunna, it is a ritual of Islam and if people agreed to abandon
it. Then the Imam should declare war against them , same as
when they abandon Al Azzan . There for , it should not be left
without a reason.) 2 *
Also , Al Imam Malik said L: ( If a person is not circumcised
, he is neither accepted as a leader , nor his testimony.)3 *
The third view:-
For males it is obligatory , and for females it's a noble
deed. This narration of Al Imam Ahmed Ibn Hanbal, and some
Malikiya and Dhahiriya refers to this .And they inferred to
Shadad Ibn Aous's words : ( Circumcision is a Sunna for males,
and it brings nobility to females.) 3*
Al Baihagi said that the Hadith is weak , for it has Al Hajaj
Ibn Artah , and it he is an imposter but the Hadith has a
witness by Al Tabarany . And on Abdul Razag's classification
told by Omar, he said regarding circumcision : ( For males it
is a Sunna, and it brings cleanness to females .) 5* Al Nawawi
said :( What is proper in our faith , and followed by our
companions , is that circumcision is permissible at childhood
, and not obligatory .As AL Shawkani stated in [Al Tarjeeh] :
( Honesty , there hasn't been any genuine evidence suggesting
positivness and obligation .It is of the Sunna and properness
to follow the positive ,until we are obliged to do other
wise.)6*
And from all this , it is apparent that scholars agreed on the
permissibility of circumcision in general , but they disagreed
on its obligation for both sexes .
And on whether it was a Sunna , or whether it is only
obligatory to men, and whether it brings nobility to female .
But none of them said that it was forbidden for women. Even
Ibn Al Munzir , where he weakened the Hadith , but didn't
restrict it to males rather than females .
Types of female circumcision , its time ,invitation , and
fare:
Female circumcision is divided into two types :-
1- Lawful circumcision :-
And it's the removal of the prepuce , which covers the
female's clitoris .
And it's like the male's circumcision , and it's called the
Sunna .
2- Unlawful circumcision :-
And it's removal of any extra parts beside the clitoris's
prepuce , and it includes the (Complete) pharaoh's
circumcision , the medium , and the improved one , and others.
There for , any type of circumcision involving the removal of
any parts of the clitoris is under unlawful circumcision , and
is not under the Sunna type , but is under the pharaoh type.
Scholars disagreed on its proper time .Al Mawardi said : (It
has two proper times , an obligatory one , and a preferable
one .The obligatory is when one reaches adulthood and the
preferable one is before that .The choice is between the
seventh day after delivery , but should it be postponed , then
on the fortieth day. And should it be postponed also then on
the seventh year.) The imam of the two Holy mosques said : (
It is not right before adulthood , for the boy is not obliged
with bodily worship , let alone with painful ones .)
And Abu Al Faraj Al Sirkhasi said that: ( there is benefit in
circumcising the boy while still young , for his skin is still
soft.) And Imam Malik said : ( It is better if he is younger
than seven years old , or around this age.) 1* Dr .Amal Ahmed
Al Bashir said on the time of female circumcision : ( It
should be around the age where it is easier for the doctor or
well trained made to part and cut the prepuce from the
clitoris without removing any other part from the surrounding
area . And its different from one child to another , that's
why there should be a medical check up for each female genital
part before deciding upon a time for her circumcision.) 2*
The invitation and fare for circumcision :-
It was ststed on [ Al Al mofrad] on Aisha may Alla be pleased
with her said: ( I was invited for a banquet , when I knew
that it was a female's circumcision I said , we never used to
announce for it. )
Ibn Al Haj Al maliki stated on his book [Al Madkhal] : (The
Sunna on male's circumcision is to reveal it , and to conceal
it on female's .)3 *
So female's circumcision was known , but the disagreement was
on its revelation 4*.
Circumcision fees :-
It is acceptable to hire somebody for it ,Ibn Godamma said
:(We have no knowledge of disagreement on the matter , and it
is lawful )
Who pays the fees ?
Scholars said that : ( It should be from the circumcised own
money . if he/she had any .Or from the father , or on whoever
is responsible for his/her expenses.) 1*
The advantages of lawful circumcision :-
1- To establish the exalted and glorified Allah's laws ,and
his apostle's Sunna , may Allah'a blessing be upon him.
2- To establish the rightful adequate substitution to fight a
harmful practice (pharaoh's circumcision) with regards to the
social and psychological outcomes in leaving it all together.
3- To elevate ritual adoration (lawful circumcision) rather
than the habitual ( pharaoh's circumcision).
4- The Arabs always spoke ill of a prepuce person in both
their poems and reality . They believed on its filthiness .And
it becomes difficult to refine menstrual blood and urine ,
which leads to foul smells and illnesses 2 * .
5- To reduce eroticism by removing the prepuce ( Eroticism
means , to be preoccupied by your sexual desires. Reducing the
prepuce means more moderation.) for both circumcised males and
females alike .
6- Reducing the possibility of cancer in both sexes.
7- To minimize masturbation among mature people , because the
prepuce discharges stimulates the sexual nerves around the
prepuce which leads to itching , which is in itself a
delightful invitation for grown-ups.
8- The prevention of infections , because the stench and
microbes resides on the prepuce of both sexes .3*
Disadvantages of unlawful circumcision (The pharaoh) :-
1- It differs in manners to the lawful one.
2- Mutilation and changes to Almighty Allah's creations by
cutting parts of a female's genital organs .The exalted Allah
said: ( We indeed created man in the best of moulds.)4 * And
the prophet May Allah's blessings be upon him cursed those who
try to change the creations of Allah.
3- Health hazards such as: bleedings , infections , abscesses
, retention of urine , difficult delivery , risk to the infant
, puerperal fever , the risk of torn perineum.
4- Psychological problems such as : psychological shocks , to
fear and dread marriage , and labor with the difficulties of
social relations.
5- The social damages of getting married to foreigners ,which
leads to divorce.
And by view the stated of affairs in our current Sudanese
society today , we find the following :-
1- The strong attachment to circumcision , and exceeding the
limits stated by the Sharia ( The Islamic laws ) by using the
pharaoh type .
2- Those who are against , and abandoned female circumcision.
Because of its damages .
3- Those who were guidea by the sharia ( The Islamic laws) and
offered their worship and services in order to bring them
closer to Allah .And neither sharia nor a mind accept the
pharaoh type.
Female circumcision in the Sudanese law:-
By referring to the Sudanese acts and laws for the years 1925
and 1974 ,chapter twenty-two under crimes against human body
,we find the following :-
Article 284-(A) unlawful circumcision :
Except where it is mentioned , it is a crime on to any person
performing unlawful circumcision . Or whoever causes
intentionally any harm or damage to any external part of a
female's sexual organ.
Exempt :
The removing of the pointy part , which descends from a
female's clitoris is not a crime according to this act.
3- Whoever commits the crime of performing unlawful
circumcision is subjected for less than five years
imprisonment or subjected to fine or is subjected to both
penalties.
4- Explanation:
Considered a criminal , any female who self-prefomes these
acts. 2*
The Sudanese laws for the years 1925 and 1974 , divided
circumcision into two types:
One is accepted by the laws , and the other is unlawful and is
under criminal behavior , since one does not comply to the law
in the matter of removing only the pointy part of a female's
clitoris.
The magistrate Derrar said : ( According to the article 130
(A) (D) from the criminal procedures for the year l974 , it is
not acceptable to take any legal actions concerning article
284/A unless by permission from the governor.)1*
The state of the capital punishments laws for the years 1983
and 1991:-
There hasn't been a term in the capital punishment law for the
year l983, nor in the criminal law for the year 1991 , that is
similar to article 284/A in the law of 1925 and 1974 . The
articles concerning circumcision had been omitted from the
1983's law .The magistrate Derrar said : ( What is known about
jurisprudence of criminal law , that a crime has two parts: a
material side and a moral side . And if we look into the
components of the materialistic side of circumcision , in
comparison with the materialistic side for the crimes of
damage or amputation of organs , we find that it is exactly
similar in kind .But the matter differs when viewed from the
moral side , where the criminal intention in damage crimes
differs from the straight forward good or the probable
intentions. The doers intentions in circumcision's crimes are
not in an atrocious manner .In fact he is seeking the welfare
(of the circumcised) whether it be socially or health wise.
Therefor , it is difficult to establish to the crime and
include it with the rest of crimes .And according to the
public principals' explanation of the law. The omitting of the
criminal section in this manner is an indicator of the
intentions of those who wrote the law ,as not to include it as
a crime)
The article 272/2 of the criminal law for the year 1983 is as
follows :-
A- The removal of any organ of the body or to cause damage to
it, whether be it partially or completely .
B- To paralyze the sense of hearing , or sight , or
articulation , or smell , or taste , or the removal of voice ,
or the ability to intercourse , or to remove the ability to
stand up , or sit down , or to remove any advantage's of the
body , or to any of its members partially or completely …All
these have capital punishments and are regarded as harmful
crimes , and those who wrote on this matter or explained its
components excluded circumcision from the lists of crimes …The
fact of the criminal law is to summarize its explanation.
(There is no crime nor punishment without an article)
Bearing in mind that the criminal laws and punishments for the
year 1991, are not in contrast with the Islamic Sharia laws
.Because the law with its sub-branches , is derived from the
Islamic jurisprudence .Therefore , it is unacceptable to
explain any law to contradict with the Islamic Sharia .And it
is well known that circumcision is approved by the apostle's
Sunna , so forming any law or article , should be in agreement
with the spirit of the law.
From a theoretical point of view .The Sudanese stated laws
here aren't firm enough so as to include female Sunna
circumcisions as a crime into the Sudanese laws , nor is it
firm enough so as to bring lawsuit , or capital punishment
against whoever commits the act of female circumcision .
Conclusion:-
1- Circumcision is one of the elements of nature's
dipositions. And it is an Islamic ritual , scholars have
indeed agreed on its permissibility , but none the less
disagreed on its judgement
(obligatory of Sunna , or foulness.) but none of the scholars
said any thing about it being forbidden .
2- The evidence on the legitimacy of circumcision is general
for males and females alike .
3- To animate the order of enjoining in all that is good and
the prohibition of all that is wrong . And the public should
know it , clear and distinctively , the differences between
lawful circumcision and the unlawful type , so that they would
stop from practicing the wrong deeds (pharaoh) and obey
enjoining for there aren't any extravagancies nor negligence
concerning female Sunna circumcision .
4- Lawful female circumcision is not a burial of female , but
it's a strong attachment to the Apostle's Sunna .For there
isn't evidence or advantage or any justifiable explanation for
forbidden the practice unless to trespass on the Apostle's
Sunna.
5- Referring to some weak Hadiths , isn't sufficient enough as
to be hold as an evidence to forbid female's circumcision ,
and that's for the following reasons:-
A- The presented proper Hadiths were attributed with natural's
dispositions .Which indicates circumcision rightfulness
B- The weak Hadiths , some of them were narrated differently
by other versions and proved preperness and the rest were
reported with strong evidence supporting them.
C- The origin of deeds is lawfulness , therefore , looking for
evidence supporting prohibition of female circumcisions are
much harder than looking for permissible ones. And there
hasn't been any Islamic or legal texts saying to its
formability or its prohibition.
6- To make sure of stopping the unlawful female circumcision
practice . so as to eliminate damage by establishing lawful
circumcision .And as the prophet's saying:
Recommendations:
1- To stabilize medical science , and to prepare knowledgeable
doctors .
2- To train doctors , midwifes and nurses on lawful female
circumcision and to inter the subject into the medical
curriculum .3- To set medical centers to practice lawful
circumcision.
4- To avoid passing enactment , which proves to be against
Islamic Sharia laws , and therefore proves public passiveness
(for the victim's own acceptance alone is sufficient not to
press criminal charges regarding circumcision)
5- To work in order to eliminate all traditional harmful
practices , and to preserve religious and good customs.
6- To promote and elevate religious and health awareness
particularly among mothers.
7- To release a religious legal opinion to forbid the
pharaoh's circumcision and to legalize Islamic Sunna
circumcision .
Conclusion …God , do not blame us if we have forgotten or
sinned .
Fathiya Hassan.
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