The difference between the rulings for a masjid and a musalla
My father and uncle erected a residential building. The ground floor was readied as a musalla which was divided into two sections — one for men and the other for women. The two sections are not linked and the entryway to the building separates them. Since the building was first constructed, religious rites such as prayers, i'tikaf [spiritual retreat] and religious lectures have been held in the men's section; prayers were not held in the women's section except for only a few days. Ten years ago, my uncle started using the women's section as storage space and refused to use it as a school for Quranic memorization. Now he wants to convert it into a shop. Is this permissible?
It is established in Islamic law that there is a difference between a masjid [mosque] which has been dedicated to God the Almighty and a zawya or musalla [place used for prayers] with shops and private quarters above them. It is permissible to pray in a zawya or musalla and purity of place is incumbent for all three.
Rulings specific to a masjid
A masjid has special rulings which include among others:
-The impermissibility of changing it from a masjid to another purpose.
- The impermissibility of selling in it.
- The impermissibility of menstruating women remaining inside it.
- The permissibility of offering the prayer for greeting the mosque in it.
The rulings for masjids do not apply to zawyas or musallas even if they have been endowed as places for performing prayers. This is because the space surrounding a masjid is part of it while private properties are usually built over zawyas or musallas, i.e. any zawya or musalla built under a private property is not considered a masjid.
-Ibn Nujaim, the Hanafi scholar, wrote in Al-Bahr Al-Ra`iq Sharh Kinz Ad-Daqa`iq that whoever erects a masjid beneath which is a basement or above which is a residence and its door faces the street and separates it from the rest of the house, or anyone who reserves a portion in the middle of his house for prayer and allows people to enter to pray in it, is free to sell the property and it can be inherited from him. This is because he did not dedicate it exclusively to God and it remains his private property. In brief, the condition that causes a place to be considered a masjid is that the space above and beneath it must also be part of it, severing a person's right to it. God Almighty says: “And the places of worship are for Allah (alone)” [72: 18].
It is permissible to build structures beneath or above a masjid which have been endowed to its interests since they are not owned by anyone but are supplementary to the interests of the masjid; an example includes the basement of Al-Aqsa Mosque. This is the dominant opinion of [our] school of jurisprudence. Other different rulings are mentioned in Al-Hidaya."
-Ibn Hazm, from the literalist school of jurisprudence, wrote in Al-Muhalla (4/248): "It is not permissible to build a masjid with private residence above or beneath it that is not part of it. Any such structure is not considered a masjid and remains the property of the owner. This is evidenced by the fact that space cannot be owned as it is incorporeal. God the Almighty says: “And the places of worship are for Allah (alone)” [72: 18].
A place of worship cannot therefore be designated as a masjid unless it is exclusively the property of God the Almighty without any partners. As such, a person may build as many stories as he wishes above his personal property and it is not possible to eliminate his ownership of them because they are legally his.
A person may build a masjid on a piece of land and stipulate his ownership of the space surrounding it to dispose of as he wishes. This condition is invalid and does not eliminate his ownership of the masjid and make it the property of God the Almighty. The Messenger of God (peace and blessings be upon him) said: "Any condition that is not present in the Book of God is invalid." Such a condition is invalid because: when a person erects a masjid on a ground floor and retains the space above it for himself, then if its ceiling belongs to him, this would mean that the masjid is without a ceiling and no structure is ever without one. And if the ceiling belongs to the masjid, then it would not be permissible to build anything above it. But if the masjid is on an elevated floor and its ceiling belongs to it, it is then a place without a floor (because the ceiling of the ground floor does not belong to it) and this cannot be. But if it does belong to the masjid, then he has no claim to it and it would be tantamount to erecting a house with no ceiling which is impossible. Additionally, if the masjid is on the ground floor, then it is impermissible to build anything on its walls; such a stipulation is invalid since it is a condition that does not exist in the Book of God the Almighty. If the place of worship is on an upper floor, it is permissible for the owner of the property beneath it to knock down the walls of his property whenever he wishes even if this involves destroying the masjid. It is unlawful to prevent him from doing this since, by doing so, one would only be preventing him from disposing of his property, which is impermissible."
Praying in a building while following the imam who is praying in another building
According to An-Nawawi in Rawdat Al-Talibeen, it is impermissible for a person in a building to follow the imam who is praying in another building, one of which is not a masjid and is separated from the former by a barrier thereby preventing free entry and seeing the motions of the imam.
It is permissible for your uncle to use the women's section for storage. It is impermissible for a person, whether male or female, who is praying in the women's section to follow an imam in the men's section or vice-versa. This is due to the barrier that separates the two places, impeding free entry and seeing the motions of the imam.
And God the Almighty knows best.