THE HEDAYA, OR GUIDE: A COMMENTARY ON THE MUSSULMAN LAWS

Translated by Charles Hamilton [in 1791]

[Published by Islamic Book Trust, Delhi, 1982]
 

BOOK LIII

OF HERMAPHRODITES.

Section I.

Of who are Hermaphrodites.

Hermaphrodites are either male or female.
- A Khoonsa, or hermaphrodite, is a person possessed of the parts of generation of both a man and a woman. If, therefore, such person discharge urine from the male member he* [footnote *: The gender of an absolute hermaphrodite is dubious. The translator follows the Arabic text in expressing it throughout in the masculine, that being the most generally applicable.] is accounted a male, or if from the female member, a female ; - because it is so recorded in the traditions, and likewise reported from Alee; and also, because the circumstance of the urine being discharged from either member in particular, denotes that member to be the original, and the other merely a defect. If, on the contrary, the person discharge the urine from, both members, regard is paid to that from which it first proceeds, as this denotes that member to be the original. If, on the other hand, the person discharge his urine from both members equally (that in, at one and the same time) he is a Khoonsamoosh'kil, or equivocal hermaphrodite, according to Haneefa.

Or ambiguous.-
Nor is any regard paid to the superior or inferior quantity of the urine in this instance, because a superiority of discharge from either member does not denote that member to be the primary, since this circumstance arises merely from the urinary passage in the one being wider than in the other. The two disciples maintain that regard must in this case be paid to the comparative quantity of urine; and consequently, that the sex is determined according to the member from which the greatest quantity proceeds; because this denotes that member to be the superior and original and also, because the greater quantity is, in effect of law, the whole. From whichever member, therefore, the principal quantity of urine is discharged, that member is accounted the superior. If, however, the urine proceed from both passages alike (that is, at the same time, and in equal quantity), the person is accounted an equivocal hermaphrodite, according to all our doctors, as in this case neither member possesses any superiority over the other. - What is here advanced applies solely to hermaphrodites not yet arrived at the age of maturity; for upon an hermaphrodite attaining to maturity, if his beard grow, or he have connexion with a woman, or nocturnal emissions, or his breasts appear as those of a man, he is accounted a male, those being indisputable tokens of manhood; but if the breasts swell like those of a woman, or the menstrual discharge appear, or pregnancy, or carnal connexion with a man, the hermaphrodite is accounted a female, such being the tokens of womanhood. If, on the contrary, no distinguishing tokens of either sex appear, or the tokens of both (such as a beard, with the breast of a woman), the .person is an equivocal hermaphrodite.
 

Section II.

Of the Laws respecting equivocal Hermaphrodites

An equivocal hermaphrodite.
- It is a rule with respect to equivocal hermaphrodites, that they are required to observe all the morc comprehensive points of the spiritual law, but not those concerning the propriety of which [in regard to them] any doubt exists.

Must take his station, in public prayers, between the men and the women.
- An equivocal hermaphrodite, in standing behind the imam for the purpose of prayer, must take his station immediately after the man and before the woman, as it is possible that he may be a man, and it is also possible that he may be a woman. If, therefore, he chance to stand among the women, he must recite the prayers repeatedly, for as it is possible he way be a man they would otherwise be nuagatory [sic]. If, on the contrary, he stand among the men, his prayers are valid; but the men who are next to him are to recite their prayers repeatedly, out of caution, as it is possible that he may be a female.

Observing (in other respects) the customs of women.
- IT is laudable in an equivocal hermaphrodite to cover his head, during prayer, with the skirt of his garment, ang also to sit in the posture of women; for if he be a man, this is merely a deviation from custom, which does not imply any positive illegality; but if he be a female, his neglecting so to do would induce an abomination, it being indispensably incumbent on women to be covered upon that occasion. It is also laudable in him, if he be without a garment, to recite the prayers repeatedly; but still the prayers are lawful although he should neglect so to do. It is, moreover, abominable in him to wear silk or jewels.

He must not appear naked before man or woman, or travel along with either, except a relation; and he must be circumcised by a slave purchased for that purpose.
- It is abominable in an equivocal hermaphrodite to appear naked before either man or women, or to be in retirement with either man or woman except his prohibited relation. In the same manner, it is abominable in him to journey in company with a man other than his prohibited relation, - or with a woman not withstanding she be a prohibited relation, as it in not lawful for two women to travel together, although they be relations. It is also abominable that he be circumcised by either a man or a woman; and therefore, to perform this ceremony, a female slave must be purchased at his expense; - or, if he be destitute of property, the price of such slave must be advanced to him, by way of loan, from the public treasury, with which he way purchase her for the purpose of circumcising him; and having so done, she is to be sold, and her price paid into the treasury, as he has then no farther occasion for her.

Rules to be observed by him during a pilgrimage.
- If an equivocal hermaphrodite undertake a pilgrimage during his adolescence (that is, when nearly arrived at maturity), Aboo Yoosaf declares he is uncertain which modes of dress is most proper for him to adopt; for if he be a male, his wearing a seamed garment is abominable; and if he be a female, it is abominable to wear any thing else. Mohammed, however, says that he ought to wear a seamed garment, in the same manner as woman; because it its still more abominable for a woman to neglect this during pilgrimage than for a man to wear it.

Divorce, or emancipation, suspended upon the circumstance of sex, are not determined, in relation to an hermaphrodite.
- If a man suspend the emancipation of his slave or the divorce of his wife, upon the circumstance of her producing "a male child," and she be delivered of an hermaphrodite child the divorce or emancipation do not take place until the sex or condition of the child be fully ascertained, since the person canot incur the penalty, in this instance, because of the doubt.

Until his sex be ascertained.
- If a man declare, "all my male slaves are free," or. "all my female slaves are free." and he be possessed of an hermaphrodite slave, this slave is not emancipated until his real condition be ascertained, since here the master cannot be forsworn, because of the doubt. If, on the contrary, he thus mention his male and female slaves together, the hermaphrodite is in that case emancipated, since one or other description applies to him indisputably, as he must be either a male or female.

His declaration of his sex is not admitted.
- If an hermaphrodite declare himself to be a male, or a female, and he be of the equivocal description, his declaration is not credited as his plea is repugnant to the suggestion of proof. But if he be not of an equivocal description, his declaration may be credited, he being better acquainted with his own state than any other person.

Rules to be observed in his interment.
- If an equivocal hermaphrodite die before his condition be ascertained, the ceremony of ablution must not be performed on his body by either man or woman, neither of those being allowed to perform it to the other. Ablution, therefore, being impracticable in this instance, the ceremony of teyummim [rubbing with dust or sand] must be substituted for it; and it is mentioned in the Jama Ramooz, that if the teyummim be performed by any other than a prohibited relation, the hand must be covered with a cloth.

If a hermaphrodite die at an age bordering on maturity (at twelve years of age, according to the Jama Ramooz), the corpse is not to have the ceremony of ablution performed upon it, whether it be male or female. Upon depositing it, moreover, in the tomb or grave it is laudable to cover the same with a cloth, this being indispensable with respect to woman, although not with respect to men.

When there is occasion to repeat the funeral prayers over a man, a woman, and a hermaphrodite, at the same time, the bier of the man must be placed next the Imam, that of the hermaphrodite next, and beyond all the bier of the woman.

When there is any reason for interring a hermaphrodite in the same tomb [or grave] with a man, the former must be deposited after the latter, as it is possible that he may be a female; and a partition of earth must also be constructed between them. If, on the other hand, a hermaphroclite be interred in the same tomb [or grave] with a woman, he must be deposited first, as it is possible that he may be a man.

It is laudable to shroud the body of a hermaphrodite in the same manner as that of a woman, by wrapping it in five cloths; for, if it be a female, such is that ordained practice with respect to women; and if it be a male, that is merely an excess of two cloths, which is a matter of no moment.

Rules of inheritance with respect to hermaphrodites.
- If a man die, leaving two children, one a hermaphrodite, and the other a son, in that case, according to Haneefa, the whole inheritance is divided between them in three shares, two going to the son, and one to the hermaphrodite; because he hold a hermaphrodite to be subject to the law of a woman, unless his condition be ascertained to be otherwise. Shobbaia, on the contrary, maintains that in this case the hermaphrodite is to receive half the share of a male heir, and half the share of a female, - by first calculating the amount of his shares, supposing him to be a male, and then the same supposing him to be a female, adding the two together, and paying him a moiety of the added sums. Mohammed and Aboo Yoosaf subscribe to this opinion. They however, differ in their exposition of it-; Mohammed holds that the whole inheritance is to be divided into twelve parts, seven of which go to the son, and five to the hermaphrodite; - whereas Aboo Yoosaf alleges that it is to be divided into seven parts, four of which go to the son, and three to the hermaphrodite. The argument of Aboo Yoosaf to that the son, if he stood alone, would be entitled to the whole inheritance; and the hermaphrodite, if he stood alone, would be entitled to three fourths of the inheritance, - he being entitled (when standing alone) to a half, if accounted a male, or to the whole, if accounted a female; for the whole property consists of four quarters, the half of which is two quarters, and these, being added together, make six quarters, the half of which is three. Where, therefore, those two unite in one inheritance, the estate is divided between them according to their respective proportions of right; and as the right of the son is to four fourths, and that of the hermaphrodite to three fourths, the former gets in the proportion of four, and the, latter in the proportion of three: - and accordingly, the whole inheritance is divided into seven parts, four of which go to the son, and three to the hermaphrodite. The argument of Mohammed is that supposing the hermaphrodite to be a male, the inheritance would be divided between him and the son in equal shares; or supposing him (on the other hand) to he a female, it would be divided between them in three lots. We must therefore have recourse to the number which admits of division by two and by three; and as this number is six, it follows that on the former supposition the inheritance is to be divided equally between the two, three shares of the six going respectively to each, - or that, on the latter supposition, it is to he divided between them in three lots, two shares of the six going to the hermaphrodite, and four shares to the son. The hermaphrodite, therefore, is entitled to two shares, unquestionably; and there being still a doubt with respect to the one redundant share, that it divided into two. Hence the hermaphrodite gets two shares and an half; and a fraction thus falling to his share, the root of the proposition (six) must be multiplied by two, in order that there may be no fractions;* [footnote *: That is, in order to reduce the whole to integral parts.] and the whole calculation, being twelve, will come out right, in this way, that five go to the hermaphrodite, and seven to the son. The argument of Haneefa is, that it is necessary in the first place, to establish the hermaphrodite's right in the inheritance; and as the smaller portion of inheritance (namely, that of a woman) is unquestionable, and any thing beyond it is doubtful, that alone is to be established, and due, which is certain and indisputable, not any more, so a right to property is not admitted under any circumstance of doubt, - the point in question being, in fact, the same as where a doubt exists with respect to a right in property founded on any other cause beside inheritance, in which case the unquestionable proportion only would be decreed, and so here likewise; - excepting, however, in the case of a smaller share* [footnote *: Namely, a smaller share than the half of the whole.] going to the hermaphrodite, supposing him to be a male; for then he would be entitled to the share of a son, since, in such instance, that would be his indisputable right; as where, for instance, a woman dies, leaving heirs her husband, mother, and a full sister + [footnote +: This might be rendered, with more strict property, "a fraternal connection", an hermaphrodite being, in fact, neither a brother nor sister. The translator, however, thinks it most advisable to adhere literally to the original.] who is an hermaphrodite, - or, where a man dies, leaving heirs his wife, two maternal brothers, and a full sister who is an hermaphrodite; - in the former of which cases (according to Haneefa) one half of the property would descend to the husband, a third to the mother, and the remainder to the hermaphrodite, - and in the latter, a quarter would descend to the wife, a third to the two brothers and the remainder to the hermaphrodite; for in both these cases the remainder is smaller than either of the two full shares, that is, the share of the hermaphrodite supposing him to be a man, and the same supposing the hermaphrodite to be a woman.