Khuntha (the one of unclear sex)

الخنثى

Khuntha is lexically one who is neither purely male nor female, or who has the features of both, from khanth, softness; technically one with both sets of organs, or with neither and only an opening for urine. ¹ It differs from the mukhannath, one who imitates women in softness, speech and movement; one made so by birth is not blamed, while one who imitates by choice is cursed in the sound reports. ¹² A clear khuntha shows male or female signs and is judged by them; an unclear one has no clear signs or contrary ones, and is of two kinds: both organs with equal signs, or no organ but an opening. ² Before puberty the sex is set by urination: from the penis, a boy; from the vagina, a girl; from both, the earlier; the majority rely on the report of Ibn Abbas and hold that the function at birth is urination. ² When the signs are equal: the Malikis, Hanbalis, Abu Yusuf and Muhammad hold that the greater quantity counts, reported from al-Awza'i; the majority say quantity is no proof. Some Malikis hold that urinating twice from the vagina and once from the penis shows he is female. ³ After puberty the sex shows by beard or emission by the penis (male), by impregnating or being penetrated (male), by menses, milk or fitness for intercourse (female); birth shows female; inclination shows the opposite; equal inclination leaves him unclear, and in fiqh an unqualified khuntha means the unclear. ³³⁴ The unclear khuntha is judged by the safer and firmer course, and no ruling whose ground is doubtful is applied. ⁴ Awrah: as a woman's by the Hanafis and Shafiis, except the face and hands; the Malikis cover as a woman in prayer and pilgrimage; the Hanbalis as a man. ⁴ Ablution and touch of the genitals: the Hanafis and a Maliki report say no; the Maliki school and the Shafiis say yes; the Hanbalis divide. ⁴ Ghusl and penetration without emission: not required by the Hanafis, Shafiis and Hanbalis, unlike the Malikis; the call to prayer by a khuntha is not valid by agreement. ⁴ Rows and leading the prayer: he stands after the men and boys and before the women; the Hanbalis have the imam place him at his right; leading men is invalid, leading women valid for the Hanafis, Shafiis and Hanbalis, standing in front of them; the Malikis forbid his leading. ⁴⁵⁵ Pilgrimage and ihram: he is like a woman in the conditions of the Hajj for the majority, and does not travel for it without a mahram; the Hanbalis require no expiation if he covers only the head or only the face, expiation if both. ⁵⁶ Looking and seclusion: no non-mahram may be alone with him or travel with him; he may not be uncovered before women or men in caution; al-Qaffal allowed it by the presumption of childhood. ⁶ Marriage: the Hanafis allow it if his father marries him to a man who consummates, otherwise they postpone it as for the impotent; the Malikis and Shafiis forbid it on both sides; the Hanbalis rely on his inclination; Abu Bakr forbids marriage until his sex is clear. ⁷ Suckling: his milk does not establish marriage bars for the Hanafis and most Hanbalis; the Malikis count it by analogy with purity; the Shafiis and Ibn Hamid suspend the matter. ⁷ Admission and testimony: his admission lowers his share of inheritance or blood-money is accepted; his claim to raise it is not; he is witness as a woman; his judgeship is not valid by the Malikis, Shafiis and Hanbalis, the Hanafis accepting it outside hadd and retaliation. ⁸ Retaliation: one who kills or is killed in retaliation may be killed for or by him; for injuries the Malikis, Shafiis and Hanbalis retaliate, the Hanafis do not. ⁸ Blood-money: the Hanafi discussion of the diya of the khuntha begins here and continues beyond p.7874. ⁸ Blood-money: the Malikis and Hanbalis give half a male and half a female diya, since the sex is one of two possibilities; the Shafiis give the female diya as the certain sum; for wounds the Hanafis and Shafiis give half the male sum, and the Malikis and Hanbalis equal the male up to a third. ⁹ The khuntha is not in the paternal kin who pay; if he proves male, the Shafiis have him repay the share others paid; in the oath of the group (qasama) the Hanafis and a Hanbali view exclude him, while the Malikis and another Hanbali view include him; the Shafiis have the majority swear and suspend the rest. ⁹¹⁰ Slander: the Malikis and Shafiis impose the hadd for slander of his male organ, and none if he committed adultery in either; the Hanafis give no hadd, but discretionary punishment. ¹⁰ Circumcision: the Hanafis permit it for a child who is not yet desired by a man or a woman; some Malikis forbid it out of caution; the Shafiis forbid it in childhood, with two views at puberty; the Hanbalis circumcise both organs out of caution. ¹⁰ Silk, gold and silver: most jurists forbid them; the Hanafis dislike them out of caution. ¹⁰¹¹ Washing, shrouding and burial: the Hanafis do not wash him, a man or a woman, and he is dry-ablute; the Shafiis divide: if a child, both men and women may wash him, if grown, two views; the Hanbalis dry-ablute him from seven years; he is shrouded in five white pieces like a girl; he is placed between a man and a woman in the prayer; covering the grave is recommended. ¹¹¹² Inheritance: the Malikis, Hanbalis, Abu Yusuf and Muhammad give him half a male share and half a female share; Abu Hanifa gives the lesser of the two shares; the Shafiis give the certain share and hold the rest until the matter is clear or they agree. ¹²