Touching the penis does not nullify wudoo' according to `Ali, `Ammar, Hudhaifah and Ibn Mas`oud (may Allah be pleased with them) and it is the juristic school of Abi Hanifah and one narration from [Imam] Ahmad.

Would then the hadith of Basrah bint Safwan (may Allah be pleased with her), "Whoever touches his penis, let him perform ablution," be taken as mustahabb (preferable)? And that the evidence for it going from wajib (obligatory) to mustahabb (preferable) would be the Prophet's saying (saws), in the hadith of Talq ibn `Ali (may Allah be pleased with him), "And is it but a part of you?"

And would the meaning [of the first hadith] be [the difference between touching] with desire or without? How do we reconcile the [varying] proofs?

Please clarify for us which is the stronger opinion because nullification of wudoo' is a cause of hardship for many people while making ghusl, scratching, adjusting undergarments, etc.

In the name of Allah, all praise is due to Allah and may peace and blessing be upon the Messenger of Allah. To proceed:

Nullification of ablution by touching the penis is a matter of difference amongst the scholars. Many fiqh scholars have mentioned this difference, so from among them, we will transmit to you the words of Ibn Quddamah in the Mughni. He (may Allah have mercy on him) said:

"We begin with what has been said on touching the penis, for verily, it is the most certain of it. There are two opinions narrated on the subject from [Imam] Ahmad:

'The first is that it nullifies ablution; this is the school of Ibn `Umar, Sa`id ibn al-Musayyib, `Ataa', Aban ibn `Uthman, `Urwa, Sulaiman ibn Yasaar, al-Zuhari, al-Awza`i and al-Shafi`i. This is the well-known [opinion, narrated] from [Imam] Malik and it has also been narrated from `Umar ibn al-Khattab, Abi Hurairah, Ibn Sirin and Abi al-`Aliyah.

The second opinion narrated is that it does not nullify ablution. This has been related on the authority of `Ali, `Ammar, Ibn Mas`oud, Hudhaifah, `Imran ibn Husain and Abi al-Dardaa'. It was also said by Rabi`ah, al-Thawri, Ibn Mundhir and the Hanafis due to what Qais ibn Talq said on the authority of his father, "We had reached the Prophet (may Allah bless him and grant him peace), when a man came [who looked] as though he were a Bedouin and said, 'O Messenger of Allah, what is your opinion about a man touching his penis after performing ablution?' He replied, 'And is it but a part of you or a piece of your flesh?' This was also related by Abu Dawud, al-Nasa'i, al-Tirmidhi and Ibn Majah, because it is just another body part, like the rest of him.

The import of the first opinion narrated is the hadith related by Busrah bint Safwan: that the Prophet (may Allah bless him and grant him peace) said, 'Whoever touches his penis, let him perform ablution,' and there is a similar hadith related on the authority of Jabir. On the authority of Umm Habibah and Abi Ayyoub, who said, 'We heard the Messenger of Allah (may Allah bless him and grant him peace) say, "Whoever touches his genitals, let him perform ablution."' Also in this chapter, [there are narrations] on the authority of Abi Hurairah, related by Ibn Majah. [Imam] Ahmad said, "The hadith of Busrah and the hadith of Umm Habibah are both authentic." Al-Tirmidhi said, "The hadith of Busrah is good and authentic."Al-Bukhari said, "The most authentic thing on this topic/chapter is the hadith of Busrah." Abu Zar`a said, "The hadith of Umm Habibah is also authentic and it was related by a dozen or so of the Companions (may Allah be pleased with them)." As for the hadith of Qais, Abu Zar`a and Abu Hatim said, "Qais is one of those on whose narrations evidence is not established." The hadith [of Busrah] was later because Abu Hurairah narrated it and he became a Muslim towards the end of the Prophet's life; he kept company with the him (saws) for four years. Talq came to the Prophet (saws) while they were building the mosque, at the beginning of the period after the migration, so our hadith abrogates his. Also, the analogy of the penis to the rest of the body is incorrect, for  there are special verdicts that rest on it alone, such as the obligation of performing ghusl upon penetration, the hudud punishment [for zina], the nuptial award (mahr), etc."