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Cast System In Islam


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#1 saqib-hussain

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Posted 20 November 2010 - 09:22 PM

Salam Brothers & Sisters


Islam is a complete way of life, giving all human beings a way to live their lives. It has solutions to all daily life problems whether big or small. through this forum I would like to discuss the marriage in Islam. In some parts of the world the Marriage is based on CASTE SYSTEM, which truly gives way to discrimination amongst Muslims. This system is followed in Hinduism alot and giving importance to CASTE over a person character and other traits is really giving Non-Muslims a way to criticize Islam.

I would like to hear valuable comments from all of you

Saqib
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#2 toomuchnoise

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Posted 20 November 2010 - 09:32 PM

Salam Brothers & Sisters


Islam is a complete way of life, giving all human beings a way to live their lives. It has solutions to all daily life problems whether big or small. through this forum I would like to discuss the marriage in Islam. In some parts of the world the Marriage is based on CASTE SYSTEM, which truly gives way to discrimination amongst Muslims. This system is followed in Hinduism alot and giving importance to CASTE over a person character and other traits is really giving Non-Muslims a way to criticize Islam.

I would like to hear valuable comments from all of you

Saqib


I find people who begin these kind of conversations to be the most racist and judgmental of all. Part of one not being a racist or judgmental is accepting the way others choose to live. Islam is not against people 'sticking to their own kind' and it does not abhor those who choose to go outside their caste or cultures but it does not encourage this reverse racism style of thinking whereby we get uptight about the way others wish to live their lives. Live and let live and if you find yourself unwanted by a group of people, thank Allah that he spared you from them and fret not about their chosen ways for they have the open right to choose the way they wish to live just as much as you have the open right to choose the way you want to live.
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#3 Hassan2jz

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Posted 20 November 2010 - 09:39 PM

Such a system has NOTHING to do with Islam and is purely a haram system, especially so when it comes to the Mushrik Kuffar of India who have managed to influence Indian Muslims in many facets of life.

In terms of marriage in Islam, there are certain criteria which have been established by the Prophet SAW and these should ideally be adhered to.


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#4 Jimmy

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Posted 20 November 2010 - 09:42 PM

I would have said from my limited knowledge that a caste system has nothing whatsoever to do with Islam.

I would say it was the opposite.

#5 saqib-hussain

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Posted 20 November 2010 - 09:54 PM

I find people who begin these kind of conversations to be the most racist and judgmental of all. Part of one not being a racist or judgmental is accepting the way others choose to live. Islam is not against people 'sticking to their own kind' and it does not abhor those who choose to go outside their caste or cultures but it does not encourage this reverse racism style of thinking whereby we get uptight about the way others wish to live their lives. Live and let live and if you find yourself unwanted by a group of people, thank Allah that he spared you from them and fret not about their chosen ways for they have the open right to choose the way they wish to live just as much as you have the open right to choose the way you want to live.


Dear with due respect this is the Dilemma we are facing at the moment, it has nothing to do with being Racist. Its not about letting people live their life its about how Islam defines right and wrong. I have put forward this topic to get an Islamic Perspective of this issue, and would appreciate if personal opinions are kept aside.

I assume that this forum gives me the freedom to discuss the various topics and I would appreciate if i can get some answers quoting references from authentic sources.
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#6 cucurbit

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Posted 20 November 2010 - 10:35 PM

but what are you after? even a non muslim can tell you its got nothing to do with islam. Do you want hadith about racism/ego/pride?


giving Non-Muslims a way to criticize Islam.

O RLY? speaking of authentic sources... ive never ever even heard of this till now.
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#7 saqib-hussain

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Posted 20 November 2010 - 11:11 PM

but what are you after? even a non muslim can tell you its got nothing to do with islam. Do you want hadith about racism/ego/pride?



O RLY? speaking of authentic sources... ive never ever even heard of this till now.


I would like to hear on the thing that Islam has abolished the division of people based on status or Cast system. To elaborate further I have heard people quoting Fatwa`s on marriage of a SYED Girl with a Non-Syed Male is considered void and Haram. Now my question would be that since Islam consider every body equal then how can we see the Fatwa`s on Cast System.

If you can comment on this..
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#8 cucurbit

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Posted 20 November 2010 - 11:41 PM

where is this fatwa? i thought it was encouraged for the females to marry those particular males, because the bloodline is passed from the father and not the mother, so the overall idea is to preserve the bloodline- which if that is the case, im comfortable and accepting of. And that doesn't equate to a cast system. I think you're nit-picking honestly, take a step back and look at the big picture- there is no Islamic "cast system", just peoples personal preferences, you see a cast system because you want it to be there to validate whatever belief/experience you have. And i would still love to see which non Muslim has criticized Islam because of this...
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#9 Hassan2jz

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Posted 20 November 2010 - 11:49 PM

I would like to hear on the thing that Islam has abolished the division of people based on status or Cast system. To elaborate further I have heard people quoting Fatwa`s on marriage of a SYED Girl with a Non-Syed Male is considered void and Haram. Now my question would be that since Islam consider every body equal then how can we see the Fatwa`s on Cast System.

If you can comment on this..


I have heard people 'mention' such a fatwa before, but it isn't valid.
A Syed female can marry a non-Syed male, it is simply 'frowned' upon, as any kids will not be considered Syeds.
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#10 FatBoyMuslim

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Posted 21 November 2010 - 12:46 AM

I have heard people quoting Fatwa`s on marriage of a SYED Girl with a Non-Syed Male is considered void and Haram.




when you don't know what a fatwa actually states, please do yourself and the ummah a favor by not propagating it, or even enquiring about it.


it's a general rule and i am saying this nicely brother.


propagating or enquiring about things where you don't even know the question you want to ask, only adds to spreading misinformation.

#11 Alpha

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Posted 21 November 2010 - 01:26 AM

I would like to hear on the thing that Islam has abolished the division of people based on status or Cast system. To elaborate further I have heard people quoting Fatwa`s on marriage of a SYED Girl with a Non-Syed Male is considered void and Haram. Now my question would be that since Islam consider every body equal then how can we see the Fatwa`s on Cast System.

If you can comment on this..


it is not just a Fatwa but also legal decisions based on these kind of Fatwas, Please read the following Aya and then read the article below to see to which extend some so Muslim governments contradict the basic principles of Islam and human rights.

يَا أَيُّهَا النَّاسُ إِنَّا خَلَقْنَاكُمْ مِنْ ذَكَرٍ وَأُنثَى وَجَعَلْنَاكُمْ شُعُوبًا وَقَبَائِلَ لِتَعَارَفُوا إِنَّ أَكْرَمَكُمْ عِنْدَ اللَّهِ أَتْقَاكُمْ إِنَّ اللَّهَ عَلِيمٌ خَبِيرٌ

سورة الحجرات - سورة 49 - آية 13

O mankind! Lo! We have created you male and female, and have made you nations and tribes that ye may know one another. Lo! the noblest of you, in the sight of Allah, is the best in conduct. Lo! Allah is Knower, Aware. 49: 13
+++




Saudi Arabia: Forced Divorce—Women under Perpetual Guardianship of Male Relatives

Fatima Bent Suleiman Al Azzaz married Mansour Ben Attieh El Timani in 2003 with the consent of her father (her guardian) as required in Saudi Arabia. The couple was happily married and had two children, a girl Nuha, born in May 2004, and a boy Suleiman, born in November 2005. In 2004, after the death of her father, Fatima's half brothers filed a petition in the General Court of Jof asking the judge to divorce her from Mansour on grounds of incompatibility, because Mansour was from an "inferior background" and the marriage "affected and ruined the family reputation." The judge who applied his interpretation of Islamic law (shariah) agreed, stating that "if a woman is married to an incompatible person, the woman or guardians who are not happy with the marriage may have it invalidated." The judge stated that all relatives of a woman have the right to have her divorced specifying that "such a choice belongs to distant relatives even if closer ones accept the marriage, and even if the wife is content with it, owing to the resulting sense of disgrace." The judge decreed Fatima and Mansour's divorce, even though this was against their will, and assigned one of Fatima's half brothers as her legal guardian. On appeal, the Cassation Court, the highest court in Saudi Arabia, upheld this decision. Photo: Mansour with his daughter NuhaPosted Image

Fatima refused to recognize the decision of the court and, as a result, was sent to prison for nine months along with her infant son, despite the fact that she had not committed any crime under Saudi law and there was no legal basis for her imprisonment. After being released from prison in April 2007, Fatima and her son went to live in an orphanage run by the Ministry of Social Welfare, because she refused to be released into the custody of her new legal guardian, her half brother, and, as a woman, custom dictates that she cannot live by herself. Fatima is largely confined to the orphanage with her child and is unable to move around freely. Mansour also refused to sign the divorce papers and consequently has been "blacklisted" by the Saudi government. He has not been able to renew his passport, identity card or driver's license or to update his bank account. He is constantly moving, along with his four year old daughter, because he is "wanted" by the Saudi government. As a result, he has not been able to keep his job at a computer company, and his ability to support himself and his family has been compromised. He depends on relatives and donations to support himself and his daughter.

The judgment of the Cassation Court can only be overturned by the King of Saudi Arabia. Fatima, now 35 years old, has stressed that she will not give up hope of being reunited with her daughter and husband. She believes that her inheritance from her father is one of the reasons her half-brothers petitioned for her divorce, allowing them through legal guardianship to retain control over her property.

Saudi Arabia does not have a codified personal status law that regulates family relations, including marriage and divorce. Instead, judges apply their interpretation of shariah in making decisions in individual cases. Forced marriages of women, or marriages concluded without the consent of the woman, are common in Saudi Arabia. Forced divorce, or divorce concluded without the consent of either party to the marriage, however, appears to be a more recent phenomenon. Human rights advocates within Saudi Arabia have contested the ruling in Fatima's case arguing that it is not a correct interpretation of shariah. The National Society of Human Rights reportedly submitted two studies conducted by Islamic scholars stating that if a woman's legal guardian represented her at the wedding, then other relatives have no right to object to the marriage based on compatibility, rather this right could only be exercised by the married woman.

According to Saudi human rights activist, Fauzia al Ayouni, since the decision in Fatima's case, several other cases of relatives seeking to dissolve women's marriages without their consent have been filed. One such case is that of R. A. E., a 27 year old physician who married her husband in Bahrain without the consent of her father. R. A. E.'s father succeeded in having a court announce her divorce without her consent, and return her to his guardianship, on the basis of incompatibility. Similarly, Um Rimas, who married Abdallah El Mahdi with her father's consent and who has since had a baby girl, is facing the same fate. Her father has petitioned the court to divorce her on the basis of her husband's inferior status, having apparently changed his mind about the couple's social compatibility. The case is pending in the court, and the couple is calling on human rights organizations to support their efforts to keep their family together.

Saudi Arabia has ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) with a reservation that it is not under obligation to observe any terms of CEDAW that contradict norms of Islamic law. This reservation is drawn so widely as to be incompatible with the object and purpose of CEDAW and, therefore, impermissible under Article 28(2) of CEDAW. In the context of its first report submitted under CEDAW in 2008, the government stated categorically that "a woman has the right to choose a husband and to enter into marriage only with her consent", and asserted that male guardianship over women is not legally prescribed. However, this is clearly not the practice, as is evident from the court ruling in Fatima's case. In Saudi Arabia, a woman is considered to be under the guardianship of her father or closest blood-related male relative all her life.

The Committee on the Elimination of Discrimination against Women, in its concluding comments to Saudi Arabia in April 2008, noted with concern that "the concept of male guardianship over women (mehrem), although it may not be legally prescribed, seems to be widely accepted; it severely limits women's exercise of their rights under the Convention, in particular with regard to their legal capacity and in relation to issues of personal status, including marriage, divorce, child custody, inheritance, property ownership and decision-making in the family, and the choice of residency, education and employment." The Committee urged Saudi Arabia to take immediate steps to end the practice of male guardianship over women.

Article 16 of CEDAW requires States parties to "eliminate discrimination against women in all matters relating to marriage and family relations" and to ensure that women have the same rights as men "to choose a spouse and to enter into marriage only with their free and full consent" and "the same rights and responsibilities during marriage and at its dissolution." Forced marriages of women, and marriages which require the consent of a woman's guardian, violate such obligations. In addition, the concept of male guardianship over women and the right given to male relatives to forcibly divorce a woman are contrary to CEDAW's basic premise of equality between men and women.



Recommended Actions

Please write to the King of Saudi Arabia and the Minister of Justice asking them to ensure that the Saudi legal and judicial system reflect the stated claim that women are not subject to male guardianship, but rather have the right, among other things, to enter into and stay in marriages of their choice without third party interference. In this respect, urge them to support the establishment of a codified personal status law to guarantee the rights of women in marriage and divorce, ensuring that such law is based upon principles of equality and non-discrimination. Call upon them to take urgent action to reunite Fatima, Mansour and their children as a family whose rights are recognized and protected under the Saudi Constitution, as well as other couples who have been divorced without their consent (to the extent such couples want to be reunited) and to ensure that no couple is divorced without the consent of at least one of them. Letters should go to:

His Majesty, King Abdullah bin Abdul Aziz Al Saud
Kingdom of Saudi Arabia
Tel: +966 1 488 2222
Fax: +966 1 491 2726


His Excellency Dr. Muhammad bin Abdul Elkarim Abdul Azziz El Issa
Minister of Justice
University Street, Riyadh 11137
Kingdom of Saudi Arabia
Fax: +966 1 401 1741

With a copy to:


Dr. Bandar bin Abdullah El Aiban
President
The Human Rights Commission
P.O. Box 58889 Riyadh 11515
King Fahed Street
Building 373, Riyadh
Kingdom of Saudi Arabia
Fax: +966 14 612 061
Email: shakwa@haq-ksa.org



http://www.equalityn...on_3101_en.html
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#12 Haneia

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Posted 21 November 2010 - 08:22 AM



when you don't know what a fatwa actually states, please do yourself and the ummah a favor by not propagating it, or even enquiring about it.

it's a general rule and i am saying this nicely brother.

propagating or enquiring about things where you don't even know the question you want to ask, only adds to spreading misinformation.


where is this fatwa? i thought it was encouraged for the females to marry those particular males, because the bloodline is passed from the father and not the mother, so the overall idea is to preserve the bloodline- which if that is the case, im comfortable and accepting of. And that doesn't equate to a cast system. I think you're nit-picking honestly, take a step back and look at the big picture- there is no Islamic "cast system", just peoples personal preferences, you see a cast system because you want it to be there to validate whatever belief/experience you have. And i would still love to see which non Muslim has criticized Islam because of this...


I have heard so many times about this brother. I am not sure about other countries but atleast in my country, I have seen so many people believing this. It is correlated to the concept of compatibility in marriage and they are of the view that a non-syed male cannot be compatible to a syed female. I myself belong to a syed family and I have witnessed a lot of cases where this concept has ruined the lives of the girls, a few examples are:

My cousin, Masters in Islamic education was forced to marry another cousin who had not even completed his school...
An educated lady refused to enter into such a marriage and she was not allowed to marry at all...
My mother was a non-syed, she has spent 38 years with my father and his family till now but she is still consider an outsider, my mother cries like anything on such a treatment and so do we....

I know all this is mere 'jehalat'. But I myself wanted to ask a question like that because whenever I try to discuss this issue, I am presented with a lot of books which state that such marriages are 'haram'. It may be something strange to many people but in country it is followed, so I would also like someone to throw light on this issue...
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#13 cucurbit

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Posted 21 November 2010 - 10:02 AM

i dont know much myself. But those sound like internal family/personality clashes. I cant imagine it being haram for a muslim girl to marry another muslim boy.
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#14 Haneia

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Posted 21 November 2010 - 10:19 AM

i dont know much myself. But those sound like internal family/personality clashes. I cant imagine it being haram for a muslim girl to marry another muslim boy.


Thats why I said it may not be the practice in other countries, but believe me it happen and they call such a marriage haram. And while they don't impose any restriction on male members to marry outside the bloodline, it becomes very difficult for the girls to find a reasonable match within the family. Those who dare to marry their daughters out of family are either pressurized to bring their daughters back or are boycotted by the rest.
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#15 roobarb

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Posted 21 November 2010 - 11:37 AM

Slightly off topic, but muslim females are not allowed to marry outside the religion but makes can right?
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#16 cucurbit

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Posted 21 November 2010 - 12:06 PM

Slightly off topic, but muslim females are not allowed to marry outside the religion but males can right?

that's right- but only are allowed to marry christian or jewish women.
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#17 FatBoyMuslim

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Posted 21 November 2010 - 04:31 PM

I am presented with a lot of books which state that such marriages are 'haram'.




can you name those books brother, or the next time those people present them to you, ask them the names of books, chapter numbers and references.

#18 Mosty

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Posted 21 November 2010 - 05:10 PM

When people in this thread say syed, do they mean Sayyid? As in a descendant of the Prophet :saws:?
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#19 saqib-hussain

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Posted 21 November 2010 - 05:37 PM

When people in this thread say syed, do they mean Sayyid? As in a descendant of the Prophet :saws:?


YES
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#20 Haneia

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Posted 21 November 2010 - 07:37 PM



can you name those books brother, or the next time those people present them to you, ask them the names of books, chapter numbers and references.


I am a sister FMB Posted Image

Anyways, I don't exactly know the names and authors of all of them, however, the most prominent scholar is Syed Meher Ali Shah. He is being followed my thousands in Indo-Pak. Here is the link of his compiled fatwas about the said matter. But its mainly in Urdu and I don't think that you would be able to understand. This book contains different queries sent to Syed Meher Ali Shah regarding the marriage of Syed girl with non-syed and for every single case, he said that it will not be 'jaiz'....

If you or anyone on this forum could elaborate this in light of fiqh and Hadith, it would be really helpful for me or may be the poster and many others...
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#21 penny5

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Posted 21 November 2010 - 08:10 PM

Haniena and saqib -This very interesting to read about and discuss on the forums. it is not a problem we hear about amongst the Australian Muslim community. Is it something that happens in INdia and pakistan or does it extend to western communities too??. please elaborate.....


Excuse my ignorance in the matter ..... did u mean that there are large proportions of the population in India and Pakistan that are considered descendants of the prophet sws?how do they establish this fact.

and these people are not to marry others?

or is it because of a distinction of class and socioeconomic backgrounds that are not allowed to intermarry.

I thought that the caste system was more prominent feature amongst the Hindu population than with Muslims.


Alpha -that story about the couple in Saudi Arabia is so unbelievably sad and wrong especially that they validate it with Islam.
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#22 Ted Cohort

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Posted 21 November 2010 - 09:10 PM

Perhaps people may often confuse the concept of marrying according to the principles of kafa'a (compatibility) with racism or a caste system.

I know, for example, in the Shafi'i school, it is strongly discouraged for an Arab woman to marry a non-Arab man. Of course, one needs to fully understand kafa'a before rejecting this principle, but it's certainly not racist or caste-esque.
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#23 Hassan2jz

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Posted 21 November 2010 - 09:57 PM

Haniena and saqib -This very interesting to read about and discuss on the forums. it is not a problem we hear about amongst the Australian Muslim community. Is it something that happens in INdia and pakistan or does it extend to western communities too??. please elaborate.....


Excuse my ignorance in the matter ..... did u mean that there are large proportions of the population in India and Pakistan that are considered descendants of the prophet sws?how do they establish this fact.

and these people are not to marry others?

or is it because of a distinction of class and socioeconomic backgrounds that are not allowed to intermarry.


It is a big issue in Pakistan. It also exists amongst Sayyid families in Lebanon and Iraq, but is less of an issue for some reason.

In Pakistan, there is a large percentage of people (especially from the Shia community) who have a 'Syed' background. In most cases, this is traced back with what is called a 'shajara', basically, a long family tree that traces back ones lineage to an early decendant of the Prophet (saw) and thus a decendant of Ali/Fatima (as) say, back to Imam Musa e Kazim (as), making the decendant a 'Kazmi' Syed. The reason Syeds prefer to marry other Syeds, is to keep the Shajara going and make sure the kids are also considered Syeds.

There are SOME fatwas from both prominent Hanafi and Jafari scholars of Pakistan against a Syed female marrying a non-Syed male. In fact, it pretty much never happens, I have never heard of a non-Syed male marrying a Syed girl, ever, in both my Sunni/Shia relatives in Pakistan, or amongst family friends for that matter. It isn't a social/cast thing, rather a complex fiqh issue. Similarly, according to both Hanafi (to the best of my knowledge) and Jafari fiqh, a Syed cannot accept charity from a non-Syed.

Personally I agree with the reasoning behind fatwas that stipulate that a Syed female can indeed marry a non-Syed male, while it is not haram, it is probably makruh and at best, muba.

You can't really compare it to the Hindu system where some people are seen as 'superior' and others 'inferior' or 'untouchable'. Islam is free from such corruption.
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#24 FatBoyMuslim

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Posted 21 November 2010 - 10:34 PM

Similarly, according to both Hanafi (to the best of my knowledge) and Jafari fiqh, a Syed cannot accept charity from a non-Syed.




in all sunni schools, hanafi or not, a sayyid (syed) cannot take zakat or charity from anyone at all.


i even heard (not confirmed yet) it extends to all hashimis, even if they are not hasani or husayni. allaah knows best.


dear sister haneia, i apologize for calling you a brother.


i will post more on this thread later if allaah wills, for you and brother saqib.

#25 Haneia

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Posted 22 November 2010 - 12:27 AM

dear sister haneia, i apologize for calling you a brother.


No problem at all brotherPosted Image

in all sunni schools, hanafi or not, a sayyid (syed) cannot take zakat or charity from anyone at all.

Syed can't take zakat from anyone but i guess there is a special form of charity which is meant for needy syeds. Don't remember what is it called, will get back on this later.



i will post more on this thread later if allaah wills, for you and brother saqib.


Will be looking forward to it. When i saw this thread for the first time, i was sure that you will come out with some authentic information...


There are SOME fatwas from both prominent Hanafi and Jafari scholars of Pakistan against a Syed female marrying a non-Syed male. In fact, it pretty much never happens, I have never heard of a non-Syed male marrying a Syed girl, ever, in both my Sunni/Shia relatives in Pakistan, or amongst family friends for that matter. It isn't a social/cast thing, rather a complex fiqh issue. Similarly, according to both Hanafi (to the best of my knowledge) and Jafari fiqh, a Syed cannot accept charity from a non-Syed.

Personally I agree with the reasoning behind fatwas that stipulate that a Syed female can indeed marry a non-Syed male, while it is not haram, it is probably makruh and at best, muba.

You can't really compare it to the Hindu system where some people are seen as 'superior' and others 'inferior' or 'untouchable'. Islam is free from such corruption.


In Pakistan, it has become a greater problem because of exploitation of girls and their parents when it comes to marriage. I am aware of the fatwas and also belong to a family which strongly condemns the marriage of syed girls with non-syeds, but personally i don't agree to this concept myself. I may be wrong but i believe that a syed husband for a syed girl should be 'desired' not 'required'. Infact, the logic behind all such fatwas is kafa'a - the suitability and compatibility of spouse. It is advised that while choosing a husband, the wali of a girl should be careful that the person he has chosen as her husband is compatible in all terms i.e. the best possible match must be made. What Ted Cohort mentioned is also right and the logic is again compatibility and such fatwa also has a background. It is for those Arab ladies who feel themselves superior to non-arabs (though Islam has clearly eliminated the differences between the arabs and non-arabs but still if the lady feels bad about marrying a non-arab, such marriage is discouraged but still not considered 'haram'). This concept of compatibility is absolutely understandable but the worst part is that while making a match for a syed girl, all other factors like education, stability, personality are ignored except for the family background, atleast I have observed this in my family. As i mentioned earlier, i have witnessed many cases where the fates of the girls are compromised and this is the cause of my repulsion from these types of fatwas.

My knowledge on this topic may be limited, but I again say that had such a marriage been haram, it would have mentioned in Quran or ahadith.
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#26 Alpha

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Posted 22 November 2010 - 01:09 AM

Hanafi position as presented in various texts of Hanafi Fiqh:(main Mathhab in India and Pakistan)

"...Kafa' or Kufu': Equality in marriage

Marriage is at the core of all social institutions and it is no exception in Islam. Marriage is probably also the most important personal decision in an individual's life, whereby two individuals of opposite sex join together as one unit. Each of us as individuals has uniqueness. Since it is generally expected to be a lifetime relation creating further bonds through children and others, it is already a challenging undertaking. To bring together two individuals toward a harmonious or at least working relationship, the issue of compatibility between the marriage partners is vitally important. There is no such thing as perfect or guaranteed compatibility, but the more the incompatibility can be minimized is better. Not necessarily, but significant gap in age, education, wealth, status, CAN be impediments to a harmonious marital life.

Thus, prospective partners in marriage would share as much common or comparable background as possible is simply a common sense matter. This is to be taken into consideration not just by the parents of the prospective marriage partners, but also, and more importantly, by the prospective partners themselves. Turning this into a legal requirement and treating certain violation of it as a matter of legal intervention by the parents and the Qadi (judge) are illustrative of legalistic tendencies.

Although the requirement and its legal ramifications are not the same in every madhab, here we will present primarily the Hanafi position as presented in various texts of Hanafi Fiqh. The following excerpts are taken from one of the most authoritative and respected Hanafi text, Hedaya by al-Marghinani.[1]

"Kafat, in its literal sense, means equality. In the language of the law it signifies the equality of a man with a woman...

In marriage regard is had to equality, because the Prophet has commanded, saying, 'Take ye care that none contract women in marriage but their proper guardians, and that they be not so contracted but with their equals'; and also, because the desirable ends of marriage, such as cohabitation, society, and friendship, cannot be completely enjoyed excepting by persons who are each others equals (according to the customary estimation of equality) as a woman of high rank and family would abhor society and cohabitation with a mean (i.e., lesser) man; it is requisite, therefore, that regard be had to equality with respect to the husband; that is to say, that the husband be the equal of his wife; but it is not necessary that the wife be the equal of the husband, since men are not degraded by cohabitation with women who are inferiors. -- It is proper to observe, in this place, that one reason for attending to equality in marriage is, that regard is had to that circumstance in confirming a marriage and establishing its validity; for it a woman should match herself to a man who is her inferior, her guardians have a right to separate them, so as to remove the dishonour they might otherwise sustain by it."[2]

The problem here is that here something that has not been made a "requirement" of marriage either in the Qur'an or in Sunnah is turned into a requirement for the "validity" of the marriage. Moreover, if two adult prospective marriage partners violate this, the guardians can legally intervene through the court system and have the marriage dissolved.

Apparently, this requirement is based on textual proofs from the Prophet. Let's see the proof.

A'isha reported that the Prophet (s) said: "Choose for your sperms the best women, marry with comparable [in Arabic, [i]akfa'[/i]] and make proposal of marriage to them."[3]

It should be pointed out that many such guidance from the Prophet is merely sensible and wise guidance, not necessarily to be treated as a matter of law. Turning everything like this into legal matters is the kind of legalism Muslim society has fallen victim of.

Let us take a closer look at this hadith. It is not a mutawatir hadith, which yields certainty of knowledge that that's what the Prophet has said. It is neither mutawatir bil lafz (exact words) nor bil ma'na (meaning). Even Sahih or otherwise known as authentic hadith does not yield certainty of knowledge.[4] A bigger problem is that this is not even a Sahih hadith. The comments in Sunan Ibn Majah about this hadith clarify it amply.

According to al-Zawaid, its isnad contains in it Harith b. Imran al-Madine. Abu Hatim said about him: He is not a sound transmitter and the hadith, i.e. this hadith, that he transmitted from the reliable authorities has no basis. Dara Qutni said, "He is matruk" [Ibn Majah, Vol. 3, p. 180] [Note: matruk means abandoned or rejected because it is a tradition in whose chain of transmission someone known to be a liar is mentioned. For a detailed glossary, see Awliya'i]

Notably, I have not come across any other hadith than the above one on this subject. In al-Bukhari and Sunan Abu Dawood, there are chapter headings "Equality in marriage", but none of the hadiths there is as specific as the one quoted above from Ibn Majah. The hadith in Abu Dawood as following:

Narrated Abu Hurayrah:
Abu Hind cupped the Prophet (p) in the middle of his head. The Prophet (p) said: Banu Bayadah, marry Abu Hind (to your daughter), and ask him to marry (his daughter) to you. He said: The best thing by which you treat yourself is cupping. [Sunan Abu Dawood, #2097]

Readers can determine for themselves how one would deduce a law, the violation of which can be subject to legal intervention, based on the above hadith. The readers can also read the pertinent hadith in Sahih Al-Bukhari [Book of Marriage, #29] and once again determine the relevance of it as the basis for such a legal requirement.

So, some valuable words of wisdom and exhortation from the Prophet have been turned into a matter of law, based on a hadith that not only does not yield certainty of knowledge, but also is not an authentic or undisputed hadith. Yet, this is not an example of qiyas, because the general principle of equality or compatibility underlying this legal position is at least informed by a hadith (though not authentic).

However, what the relevant scholars then did is that they stretched the matter of equality to a level that falls within the realm of qiyas, because such stretching is supported neither by the Qur'an or Sunnah.

"Equality in point of freedom is the same as in point of Islam, in all the circumstances above recited, because bondage is an effect of infidelity, and the properties of meanness and turpitude are therein found."[5]

The above provision actually separates the free persons from those in bondage (slaves). The classical treatment of slavery is irreconcilable with the Islamic principles of justice and dignity. However, that is a separate topic.[6] What is important to note here is that the actual hadith does not specify any parameters for kafa'. Yet, one can argue that freedom is an essential human condition and compatibility between the prospective partners in this regard is also a matter of common sense and, thus, wise. The issue still does not have to belong to the legal domain.

"Regard is to be had to equality in piety and virtue, according to Haneefa and Abu Yusuf; and this is approved, because virtue is one of the first principles of superiority, and a woman derives a degree of scandal and shame from the profligacy of her husband, beyond what she sustains even from that of her kindred. ..."[7]

The specification of kafa' in piety and virtue is simply untenable. Of course, any individual with bad reputation or habits should be taken into consideration by the relevant parties to marriage. But why turn this into a matter of law, if two adult Muslims want to marry, even where they don't have kafa' in terms of piety and virtue?

"Equality is to be regarded with respect to property, by which is understood a man being possessed of a sufficiency to discharge the dower and provide maintenance; "[8]

Once again, dower (mahr) is a required condition of marriage and is covered by separate sources in the Qur'an and the Sunnah. Some degree of compatibility or comparability in terms of wealth and property is a matter of common sense. No need to turn it into a legal requirement, except to protect the rights of any weaker or disadvantaged party.

What comes next in the qiyas by the relevant scholars is not merely a stretch, but totally unacceptable overstretch, where the idea of "equality" is turned on its head, contradicting the pristine Islamic principle and value of justice and egalitarianism.

"Equality is to be regarded in trade or profession, according to Abu Yusuf and Mohammed. -- ... the profession is not to be regarded, unless where it is of such degrading nature as to oppose an unsurmountable objection; such for instance as barbers, weavers, tanners, or other workers in leather, and scavengers, who are not the equals of merchants, perfumers, druggists, or bankers."[9]

As a common sense matter, one can argue that giving a woman of professions of higher social standing in marriage with someone of professions of lower social standing can be problematic. Of course, if an adult woman wants to marry someone with such disparity, it should be her prerogative. It is also mentioned that professional equality is not a strict requirement. However, what is particularly objectionable is identifying barbers, weavers, tanners as professions of degrading nature. Nowhere the Prophet ever made any statement that looked down on any particular profession. Instead, the Prophetic teaching ennobles laboring itself.

"Equality is regarded with respect to lineage, this being a source of distinction among mankind; thus it is said "a Quraish is the equal of a Quraish throught all their tribes;" that is to say, there is no pre-eminence among them, between Hashmees and Nislees, Teyemees or Adwees; and in like manner they say, "An Arab is the equal of an Arab." -- This sentiment originates in a precept of the prophet to this effect; hence it is evident that there is no pre-eminence considered among the Quraish tribes: and with respect to what Imam Mohammed has advanced, that 'pre-eminence is not regarded among the Quraish tribes or families, excepting where the same is notorious, such as the house of the Caliphs," his intention in this exception was merely to show that regard should be had to pre-eminence in that particular house, out of respect to the Khalifas, and in order to suppress rebellion or disaffection; and not to say that an original equality does not exist throughout. ...

Mawalees, that is to say, Ajams, who are neither Quraishis nor Arabs, are the equals of each other throughout, regard not being had among them to lineage, but to Islam. -- Thus an Ajam whose family have been Muslims for two or more generations is the equal of one descended of Muslims ancestors; -- but one who has himself embraced the faith, or he and his father only, is not the equal of an Ajam whose father and grandfather were Muslims; because a family is not established under any particular denominator (such as Muslims, for instance) by a retrospect short of the grandfather. -- This is the doctrines of Haneefa and Mohammed. Aboo Yusuf says that an Ajam whose father is a Muslim is the equal of woman whose father and grandfather are Muslims.

An Ajam who is the first of his family professing the faith is not the equal of woman whose father is a Muslim."[10]

The above reasoning, except the dissenting opinion of Abu Yusuf in this case, categorically contradicts the teachings of the Prophet. In the famous Last Sermon, the Prophet demolished all such unegalitarian notions. He said:

All mankind is from Adam and Eve, an Arab has no superiority over a non-Arab nor a non-Arab has any superiority over an Arab; also a white has no superiority over black nor a black has any superiority over white except by piety and good action.

To even suggest that a non-Arab is not equal to an Arab is simply erroneous, as contradicted by explicit teaching of the Prophet. To claim that a converted Muslim is not equal to someone who has been born into a Muslim family is also an outrageous misapplication of qiyas.

"If a woman contract herself in marriage, consenting to received dower of much smaller value than her proper dower, the guardians have a right to oppose it, until her husband shall agree either to give her a complete proper dower, or to separate from him. This is according to Haneefa. -- The two disciples maintain that the guardians are not possessed of any such authority."[11]

That the two disciples of Imam Abu Hanifa disagreed is comforting, but the subsequent Hanafi Fiqh seems to have resolved on this particular issue in favor of the Imam than his two disciples. The position of the two disciples here upholds the principle that much of these issues are prerogative of a marrying adult woman. Guardians can't intervene in such matters.

The overstretching of qiyas, as presented in Hedaya, was further stretched in later legal treatises. Here are some examples from Haskafi's Durr-ul-Mukhtar.

"A person who has himself adopted the Mohammadan faith is unequal to one whose father (also) was a Muslim and one who has been emancipated slave whose mother was a free woman originally."[12]

"A male emancipated by a man of low class will not be equal to a woman emancipated by a person belonging to the gentiles."[13]

"An Ajam (non-Arab) male is not as equal to an Arab female, although the Ajam be a learned man or a king, and this is the most correct view."[14]

"A Hanafi male is an equal to the daughter of a Shafei, and if we are asked as to whether it is valid according to the doctrines of that sect, we will say in reply that it is valid according to our sect."[15]

The segment of Hedaya on this topic begins with a prefatory remark: "Kafat, in its literal sense, means equality. In the language of the law it signifies the equality of a man with a woman..."[16] However, the legal analysis and reasoning that came about turned the issue of equality, in reality, into an endorsement of inequality. Indeed, what was supposedly formulated to protect women and their family in terms of their rights and status became an issue of inferiority of bride. "A man is said to be kufu of another, when he is equal to that other. Here from kufuship is meant a particular kind of equality or inferiority of bride (to bridegroom)."[17] How can the issue of equality on which these scholars insist becomes an issue of "inferiority of bride"? Well, when human reasoning, as in this case qiyas is overstretched, it is possible.

Excepting a few types of marriage partners, the Qur'an declares broad lawfulness of all other women. The emphasis is on religious compatibility, piety and fairness.

Also (prohibited are) women already married, except those whom your right hands possess: Thus hath Allah ordained (Prohibitions) against you: Except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property,- desiring chastity, not lust, seeing that ye derive benefit from them, give them their dowers (at least) as prescribed; but if, after a dower is prescribed, agree Mutually (to vary it), there is no blame on you, and Allah is All-knowing, All-wise. [4/an-Nisa/24]

Earlier in this essay, a hadith about Kafa' was mentioned from Sunan Abu Dawood. The same book contains some comments by the translator, which is instructive.

Abu Hind was a freed slave of Banu Bayadah. He was not a member of their tribe. The Prophet (p) asked Banu Bayadah to give their daughter in marriage to Abu Hind and ask him marry his daughter to them. This shows that only religion shall be considered in respect of equality in marriage. This is the view held by Malik. This means that it is not necessary that equality in point of lineage, vocation, status and other qualities should be considered in marriage. For the purpose of marriage only religion is worth consideration. A Muslims can marry any Muslim woman whatever her lineage, status and vocation may be. Ibn Umar, Ibn Mas'ud, Muhammad b. Sirin and Umar b. Abd al-Aziz are reported to have held this view. According to most of the scholars, equality in point of religion, status, lineage, vocation, soundness of health and financial condition should be considered in marriage. Equality in lineage is taken into consideration by the majority of the scholars. According to Abu Hanifah, the Qurarish are equals to each other. The Arabs are equal to each other. Non-Arabs are not equal to the Arabs. Al-Shafi'i holds a moderate view. He thinks that equality should be taken into consideration in marriage. But marriage is not forbidden between non-equals. If two parties marry, but they are not equal to each other, their marriage is valid with their mutual consent. In case marriage is contracted between the non-equals without their mutual consent and agreement, that marriage can be dissolved. It should be noted that there is no sound tradition in support of equality of lineage in marriage.[18]

Hammudah Abd Al-Ati, author of a scholarly work, Family Structure of Islam, offers an illuminating analysis as to why the Classical scholars may have gone in that direction of such emphasis on kafa'.[19] He makes a distinction between "social equality in marriage" and "religious equality in marriage."

He establishes that the pre-Muhammad Arab society was very hierarchical and stratified based on a variety of distinguishing parameters. This society strongly emphasized social equality (lineage, wealth, profession, etc.). The Prophet Muhammad revolutionized the society by shifting the emphasis from social equality to religious equality. "Thus, a non-Muslim man is forbidden to marry a Muslim woman because he is not her equal in religion."[20] The pioneering community under the guidance and trailblazing leadership of the Prophet reduced the impact of those stratifying factors of social equality. Unfortunately, probably due to social realities of the expanded Muslim societies across so many continents, the scholars reverted to giving greater emphasis on social equality over religious equality.

Whatever way one views this, the fact is that the egalitarian view of Islam was seriously compromised in such rulings about kafa', through use of unauthentic or disputable hadiths and and misapplication of qiyas.."


<BR clear=all>[1] The translation of the Hedaya edition, from which the following has been taken, is poor and in archaic English. Also, transliteration of some of the terms and names are not easily recognizable. Hence, some substitutions or annotations have been made to make the excerpts understandable.

[2] Burhan al-Din al-Marghinani, Al-Hedāya (2nd ed.; London, 1870), translated by Charles Hamilton [Karachi, 1989], p. 110.

[3] Ibn Majah, Vol. 3, #1968.

[4] For a detailed discussion about this matter, see Farooq _3. "Fundamental Human Dignity and the Mathematics of Slavery" [Unpublished essay, available online]

[5] Al-Marghinani, Hedaya, p. 112.

[6] See Farooq_3, op. cit..

[7] Al-Marghinani, Hedaya, p. 112.

[8] Al-Marghinani, Hedaya, p. 113.

[9] Al-Marghinani, Hedaya, p. 114.

[10] Al-Marghinani, Hedaya, pp. 111-112.

[11] Al-Marghinani, Hedaya, p. 114.

[12] Muhammad Alauddin Haskafi. Durr-ul-Mukhtar [New Delhi, India: Kitab Bhavan, 1992], p. 50.

[13] Haskafi, p. 50.

[14] Haskafi, p. 50.

[15] Haskafi, p. 52; in the footnote, it is clarified: "According to Hanafis, a marriage between a Hanafi male and a Shafei female is valid, but according to the Shafei sect it is invalid - the Raddul Muhtar, vol. 2, p. 351.

[16] Al-Marghinani, Hedaya, p. 110.

[17] Haskafi, p. 48.

[18] Vol. 2, pp. 562-563, referring to Awn al-Ma'bud, II, 197.

[19] Hammudah Abd Al-Ati. The Family Structure in Islam [Indianapolis, Indiana: American Trust Publications, 1977], pp. 84-97.

[20] Al-Ati, p. 88.

Ref: globalwebpost.com/farooqm/writings/islamic/qiyas_prob.doc

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#27 Um Zaynab

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Posted 22 November 2010 - 10:04 AM

salaam

even if there are something of the kind in Muslim countries, it does not mean it is part of islam...merely a cultural practice.

the caste system that was explained to me practiced in India goes against the foundation of Islam. if some muslims choose to follow this, it is because of their whims not because it's part of Islam.

wassalaam
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#28 Mosty

Mosty

    Yes... zey do teach suber sayian fiqh at al-Azhar

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Posted 22 November 2010 - 01:52 PM

YES


There are specific rulings regarding to marrying a Sayyid. But it doesn't make it haram, it just means they're not considered suitable (kafa').
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#29 Ahmad E

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Posted 22 November 2010 - 02:50 PM

There is no Caste system in Islam, a Muslim man can marry a Muslim women based on one of the four following conditions;

1. her beauty
2. her linage
3. her wealth
4. her religiosity,

also Muslim man must marry a Muslim women or a practicing Christian or Jewish woman, no others are allowed to be married.

On the other hand a Muslim Woman can only marry a Muslim man, no ifs or buts about it.

I don't know about you but I see nothing anywhere mentioned about Caste, it is a non-existent topic, this post is better suited for a Hindu forum not here.

I don't think that you know what you are talking about.

I would like to hear on the thing that Islam has abolished the division of people based on status or Cast system. To elaborate further I have heard people quoting Fatwa`s on marriage of a SYED Girl with a Non-Syed Male is considered void and Haram. Now my question would be that since Islam consider every body equal then how can we see the Fatwa`s on Cast System.

If you can comment on this..


Is this a Shia thing? Because I'm a Sunni Muslim and I've never ever heard of such a stupid thing, I've been studying Sharia for four years now and never heard of it.

A Muslim is not restricted to marry based on Caste get it through your head, it doesn't exist.
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#30 Ahmad E

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Posted 22 November 2010 - 03:04 PM

It is a big issue in Pakistan. It also exists amongst Sayyid families in Lebanon and Iraq, but is less of an issue for some reason.

In Pakistan, there is a large percentage of people (especially from the Shia community) who have a 'Syed' background. In most cases, this is traced back with what is called a 'shajara', basically, a long family tree that traces back ones lineage to an early decendant of the Prophet (saw) and thus a decendant of Ali/Fatima (as) say, back to Imam Musa e Kazim (as), making the decendant a 'Kazmi' Syed. The reason Syeds prefer to marry other Syeds, is to keep the Shajara going and make sure the kids are also considered Syeds.

There are SOME fatwas from both prominent Hanafi and Jafari scholars of Pakistan against a Syed female marrying a non-Syed male. In fact, it pretty much never happens, I have never heard of a non-Syed male marrying a Syed girl, ever, in both my Sunni/Shia relatives in Pakistan, or amongst family friends for that matter. It isn't a social/cast thing, rather a complex fiqh issue. Similarly, according to both Hanafi (to the best of my knowledge) and Jafari fiqh, a Syed cannot accept charity from a non-Syed.

Personally I agree with the reasoning behind fatwas that stipulate that a Syed female can indeed marry a non-Syed male, while it is not haram, it is probably makruh and at best, muba.

You can't really compare it to the Hindu system where some people are seen as 'superior' and others 'inferior' or 'untouchable'. Islam is free from such corruption.


This is further proof why Shiasm is corrupt and must be corrected, just another perverted belief in a long list of them such as Mutah marriage and the cursing of the great Sahabah.

Please spare me, a non-Syed cannot marry a Syed, where did this come from? The Prophet Muhammad (PBUH) married a slave girl from Egypt and a slave girl from a Jewish tribe, are we better than him?

And where did all these so called "Sayids" come from? And where in Pakistan and India, none are even Arab how would that make them related to our Prophet Muhammad (PBUH) who was an Arab?

Not that Arabs are better than non-Arabs but that I'm trying to prove a point.
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