بسم الله الرحمن الرحيم

Who is a Khunthā?

A khunthā is such a person who has both a penis and a vagina.

The Criterion For Stipulating the Gender of a Non-Bāligh Khunthā

If one of the following occurs and not the opposite, the gender can be stipulated:

1. If he urinates from his penis, he is a male.
2. If she urinates from her vagina, she is a girl.
3. If it urinates from both organs, the organ which dispenses the urine first will be considered.

If it comes out from both organs at the same time it will be considered a khunthā mushkil.

The Criterion For Stipulating the Gender of a Bāligh Khunthā

In the following situations it will be classified as a male:

1. A beard emerges.
2. He gets a wet dream as men experience.
3. He has intercourse with a woman.

In the following situations, it will be classified as a female:

1. Growth of breasts.
2. Milk is produced in her breast.
3. She sees ḥayḍ.
4. She becomes pregnant. OR
5. It is possible to have intercourse in her vagina.

If after reaching the age of maturity (15 lunar years or 14 years 6 months of the solar calendar) none of the above occur or some signs of both genders occur, then it will be considered a khunthā mushkil.

Laws of the Khunthā

1. If the khunthā was established as a male, all the laws pertaining to men will apply to him.

E.g. He will stand in the male’s row in ṣalāh and will be the bread winner for the family, etc.

2. If the khunthā was established as a female, all the laws pertaining to women will apply to her.

E.g. She will pray with the ladies and wear ḥijāb etc.

If the gender was not established rather, it was considered a khunthā mushkil, the most severe laws of each gender will apply ihtiyāṭan (out of caution).

الاصل في ذلك : ان الخنثى المشكل یؤخذ له في جمیع اموره بالاحوط في امور الدین 

Laws of the Khunthā Mushkil

1. The khunthā mushkil will have to be circumcised.
2. If it was circumcised when it is a minor, then both a male or female doctor can perform the surgery.
3. If it is bāligh then a male doctor cannot be used since there is a possibility that the khunthā mushkil is a woman.

• A female doctor cannot be used since it may be a male.
• Hence, the Fuqahā’ state that the khunthā mushkil should purchase a female-slave who will then conduct the operation.
• If it cannot afford her then its father should purchase the slave.
• If his father also cannot afford one then the state will purchase one for it, and after she conducts the operation, she will be resold and the monies replaced in the treasury.

4. It will have a separate row between the rows of the men and women in jamāʿat ṣalāh (congregational prayers).
5. Based on the Muḥādhāt Mas’alah in ṣalāh the following will apply:

• If it performs ṣalāh in the men’s row, the men on its right and left will have to repeat their ṣalāh because it is possible that it is a woman. Therefore, the ṣalāh of the men on its right and left will be invalid due to muḥādhāt.
• If it performs ṣalāh in the women’s row, it has to repeat its ṣalāh since it is possible that it is a man and by performing ṣalāh beside a woman it has invalidated its own ṣalāh.

6. It should wear a khimār in ṣalāh because if it is a woman, ṣalāh in a topī will not be valid.

N.B. The repetition of ṣalāh in the above masā’il will be mustaḥab if the khunthā mushkil is a minor and wājib if it is bāligh.

7. It will be makrūḥ taḥrimī (reprehensible) for it to wear silk and jewellery.
8. In front of women its ʿawrah will be that of a man.
9. In front of men its ʿawrah will be that of a woman.
10. It is not allowed to be in seclusion with both, a non-maḥram man or a non-maḥram woman.
11. It is not allowed to travel without a male maḥram.
12. In Ḥajj it will wear sewn clothing like a woman but pay the penalty of jināyah like if it was a man who had covered.
13. If it performs Ḥajj when it was a minor, then there will be no penalty even though it will wear the women’s clothing.
14. It is not allowed to be present at the bathing and shrouding of a dead man or woman.
15. When it dies, no male or female will bathe it. Rather tayammum will be performed.
16. It will be shrouded in five cloths like a woman.
17. If it dies along with a man and a woman then when lining them up for janāzah ṣalāh, the male will be closest to the Imām and the khunthā mushkil will be placed further towards the qiblah and then the woman will be placed.
18. When burying it, a cloth will be placed over its grave as done with a woman.
19. In inheritance, Imām Abū Ḥanīfah considers it a woman in most scenarios and a male in a few.

N.B. In the fiqh books the scholars use the masculine pronoun for the khunthā mushkil. However, in English we have a neutral pronoun “it”.

A Story of Imām Abū Ḥanīfah’s Wit:

When the non-bāligh khunthā urinates from both organs at the same time:

• Ṣāḥibayn held the opinion that the organ from which most of the urine emerges will be taken into consideration.
• This is based on the principle: للاكثر حكم الكل. The law is based on the majority.
• When Abū Yūsuf mentioned this to Imām Abū Ḥanīfah, he immediately retorted: “And which judge is going to sit there with a utensil and weigh the urine?”

And Allāh Taʿālā knows best.

References:

Qudurī, Lubāb, Jawharah Naiyyirah, Taṣḥīḥ wat Tarjīḥ, Hidāyah, Bināyah, Fatḥul Qadīr, Durr Mukhtār, Raddul Muḥtār