Our Words
All praise belongs to Almighty Allah, our Creator, Sustainer and Lord. His mercy and grace upon us are boundless and uninterrupted. May peace and blessings be upon our leader and guide, the Last Prophet, Muhammad, the Messenger of Allah (peace and blessings be upon him).
By the infinite mercy of Almighty Allah, the Sayyid Abul A‘la Maududi Research Academy is publishing this book, authored by the renowned jurist and Shariah expert of the modern age, Al-Ustadh Sayyid Sabiq, after completing its translation and editing from Arabic into Bengali for Bengali-speaking readers. The book has been published in three volumes.
This book is an immortal achievement in the science of fiqh. At the request, encouragement and advice of the martyr Hasanul Banna, Al-Ustadh Sayyid Sabiq composed this work. It is a guidebook for teachers and students who follow Islam (Practicing Muslims) in the modern world.
This book will remain a milestone in the history of fiqh. Until now, fiqh books have generally been written on the basis of madhhabs. However, the characteristics of this book are different from and more distinguished than those works. In brief, the features of this book are as follows:
01. It is not a fiqh book based on any particular madhhab.
02. It is a fiqh book based on evidence.
03. In discussing Shariah rulings, the relevant self-explanatory verses have been mentioned first.
04. In discussing the rulings, the relevant Sunnah of the Messenger of Allah (peace and blessings be upon him) has been mentioned second. The related hadiths have been quoted.
05. Reports of the Companions have been mentioned.
06. In matters of ijtihad, qiyas, and the interpretation of verses and hadiths requiring explanation, the explanations and opinions of the Tabi‘un, the Atba‘ al-Tabi‘un and the mujtahid scholars have been mentioned.
07. The opinions of later mujtahid jurists have been mentioned.
08. The opinions of various madhhabs and the imams of the madhhabs have been mentioned.
09. Where applicable and available, the judgments and observations of various Islamic courts have been mentioned.
10. In some places, guidance has been given regarding the opinion and course of action deserving preference.
All things considered, this is an extraordinary book worthy of being followed by ordinary Muslims, Ahl al-Hadith, Ahl al-Ra’y and the muqallids (followers) of the various madhhabs alike.
I believe that every educated Muslim needs to read this book for the pure and correct observance of Islamic Shariah, and that it should be present in every home.
If anyone notices any error in the translation or printing of this book, it will be corrected in the next printing, God willing, if the publisher is informed in writing at the publisher’s address or by telephone.
Our thought, planning and overall effort will have achieved their purpose if the followers of Islam benefit from this book. We pray to Almighty Allah to accept this humble effort of ours.
Abdus Shahid Nasim
Director
Sayyid Abul A‘la Maududi Research Academy, Dhaka
Date: January 19, 2010 CE
Introduction by the Martyr Imam Hasan al-Banna
In the name of Allah, the Most Compassionate, the Most Merciful
All praise belongs to Allah Most High. May peace and blessings be upon our leader Muhammad, his followers and his Companions.
وَمَا كَانَ الْمُؤْمِنُونَ لِيَنْفِرُوا كَافَّةً، فَلَوْلا نَفَرَ مِن كُلِّ فِرْقَةٍ طَائِفَةٌ مِنْهُمْ لِيَتَفَقَّهُوا فِي الدين، وَلِيُنذِرُوا قَوْمَهُمْ إِذَا رَجَعُوا إِلَيْهِ لَعَلَّهُمْ يَعْلَرُونَ.
Meaning: It was not necessary for all the believers to go forth together. But how excellent it would have been if a group from each of their communities had gone forth to acquire deep knowledge of the religion and, upon returning, warned the people of their own community, so that they might be cautious. (Surah 9, al-Tawbah: Verse 122)
One of the finest means of attaining nearness to Almighty Allah is to spread knowledge of Islam and its da‘wah, and at the same time to spread Islamic laws, particularly the laws of fiqh, so that people of all classes may gain clear knowledge of their worship and practice. The Messenger of Allah (peace and blessings be upon him) said:
“When Allah Most High wishes good for someone, He grants him deep understanding of the religion. Knowledge can be acquired only through learning. The Prophets (peace be upon them) did not leave behind money and wealth in this world; they left only knowledge of the religion. Whoever acquires this knowledge should acquire a great deal of it.”
The simplest, most beneficial, appealing and intellectually engaging method for studying Islamic fiqh—especially the rules relating to worship and the general Islamic subjects presented for Muslims of all classes—is to free fiqh from specialized technical and academic terminology and invented minutiae. At the same time, it should be connected, as simply as possible, with the sources of the Qur’an and Sunnah, and whenever possible the reader should be made aware of the rationale and beneficial aspects of Islam, so that students of fiqh may realize that through this study they are going to develop a close relationship with Allah and His Messenger, and that it will bring them immense benefit in this world and the Hereafter. This will provide them with the greatest encouragement to acquire more knowledge of Islam.
Allah Most High granted the distinguished elder scholar, Al-Ustadh Sayyid Sabiq, the inspiration and ability to proceed along this path. Thus, he composed this book, containing abundant knowledge and information, with simple and fluent references to its sources, and analyzed the rulings of fiqh in it in a most beautiful manner. If Allah wills, through this work he will receive an excellent reward from Allah and will also be able to impress the Muslims throughout the world who take pride in Islam. May Allah reward him appropriately for this magnificent achievement for the religion and the Ummah and for this valuable contribution to the da‘wah of the religion; may He benefit people through him and bring welfare to him and to the people through his hands. Amen.
Hasan al-Banna
بسْمِ اللهِ الرَّحْمنِ الرَّحِيمِ
The Author’s Words
All praise and gratitude belong to Allah, Lord, Sustainer and Director of the universe. May peace and blessings be upon our guide Muhammad (peace and blessings be upon him), the leader of all people, past and future, upon his followers, and upon those who follow his way until the Day of Recompense is established.
We present to our honored readers the second volume of Fiqh us-Sunnah. We pray to Allah, Glorified and Exalted is He, to make this book beneficial for its readers and to make it a means solely of attaining His pleasure. He alone is sufficient for us, and He is the best Disposer of affairs.
Sayyid Sabiq
Table of Contents
Subject
Chapter Nine: Marriage
1. Marriage Practices Abolished by Islam
2. Encouragement to Marry
3. Benefits of Marriage
4. The Shariah Ruling on Marriage
5. Celibacy Prohibited for Those Able to Marry
Marriage before Hajj
Not Marrying and Its Reason
6. Selecting the Bride
7. Selecting the Groom
8. The Marriage Proposal (Khitbah)
What Is Khitbah?
To Which Woman Is It Permissible to Propose?
Proposing to a Woman Observing ‘Iddah
Proposing over Another Person’s Proposal
9. Looking at the Prospective Bride and Groom
Which Parts of the Bride May Be Seen?
The Bride Looking at the Groom
Learning About Their Qualities and Defects
Prohibition of Seclusion between the Prospective Bride and Groom
The Risks and Possible Harm of Leniency Regarding Seclusion
10. Withdrawing from an Engagement and Its Consequences
The Jurists’ Opinions
11. The Marriage Contract (Aqd) or Marriage
Conditions for the Validity of Offer and Acceptance
The Wording of Offer and Acceptance
Marriage in a Language Other Than Arabic
The Marriage of a Mute Person
The Marriage of an Absent Person
Suitable Wording for the Contract
The Marriage Contract Must Be Unconditional
12. Mut‘ah Marriage
13. Marriage Contracted While Concealing the Intention to Divorce
14. Halalah Marriage
Halalah Marriage Is Haram and a Major Sin
The Shariah Ruling on Halalah Marriage
Ibn al-Qayyim’s Opinion
Imam Ibn Taymiyyah’s Opinion
Imam al-Shafi‘i’s Opinion
Imam Abu Hanifah’s Opinion
Which Marriage Makes a Divorced Wife Lawful for Her First Husband?
The Rationale for Prohibiting Halalah Marriage
15. Various Conditions Attached to the Contract
1. Conditions That Must Be Fulfilled
2. Conditions That Need Not Be Observed
3. Conditions Beneficial to the Wife
4. Prohibited Conditions
5. An Example of a Marriage with an Unjust Condition
16. Conditions for the Validity of Marriage
Two Conditions for the Validity of Marriage
Rules Concerning Witnesses to Marriage
Conditions for the Effectiveness of Marriage
17. Conditions for Marriage to Take Effect
When the Contract Is Not Binding
18. Women Whom It Is Forbidden to Marry
Women Prohibited Due to Close Kinship
Women Prohibited Due to Marriage Relations
The Father’s Wife
Women Prohibited Due to Breastfeeding
The Rationale for Prohibiting Marriage
The Rationale for Prohibiting Marriage Due to Breastfeeding
The Rationale for Prohibiting Marriage Due to Marital Relations
Women Temporarily Prohibited in Marriage
1. Combining Two Women Who May Not Be Married Together
2–3. Another Man’s Wife or a Divorced Woman Observing ‘Iddah
4. A Wife Divorced Three Times
5. Marriage by a Person in Ihram
6. Marrying a Slave Woman Despite Finding a Free Woman
7. Marrying an Adulteress
8. It Is Forbidden to Marry a Wife with Whom Li‘an Has Occurred
9. Marrying a Polytheist Woman
10. The Permissibility of Marrying Women from the People of the Book
The Rationale and Significance of Permitting Marriage to Jewish and Christian Women
The Difference between Polytheist Women and Women from the People of the Book
11. Marrying a Sabaean Woman
12. Marrying Fire-Worshipping Women
13. Marriage to Scripturalists Other Than Jews and Christians
14. Marriage of a Muslim Woman to a Non-Muslim Man
15. It Is Forbidden to Marry More Than Four
Justice among Wives Is Obligatory
The Wife’s Right to Impose the Condition That No Other Wife Be Taken
The Rationale for Polygamy
Restricting or Prohibiting Polygamy
The Background of Polygamy
19. Guardianship in Marriage
Significance of Guardianship
Conditions for Being a Guardian
The Condition of Integrity
A Woman’s Self-Guardianship in Marriage
It Is Necessary to Obtain the Bride’s Consent before Marriage
Guardianship in the Marriage of a Minor Girl
The Guardian’s Authority
Who Are the Guardians?
The Guardian’s Marriage of His Ward Is Permissible
Absence of the Guardian
When the Nearer Guardian Is Absent, the More Distant Guardian Takes His Place
Two Guardians Conducting Separate Marriages
A Woman Who Has No Guardian and Cannot Approach the Court
The Guardian Preventing the Marriage of His Female Ward
The Marriage of an Orphan Girl
A Marriage Conducted by the Same Guardian
When the Ruler or Judge Is the Guardian
20. Appointing an Agent for Conducting the Marriage
Who Has the Right to Appoint an Agent and Who Does Not
Appointing an Agent for a Specified or Unspecified Scope of Authority
The Marriage Agent Is Both the Appointor’s Messenger and Expression of His Intention
21. Kufu’ in Marriage
Definition of Kufu’
The Shariah Ruling on Kufu’
Kufu’ or Compatibility Is Determined by Righteousness and Good Character
Other Elements of Kufu’
To Whom Does Kufu’ Apply?
The Rights of the Wife and Her Guardians When Kufu’ Is Found
When Is Kufu’ Considered?
22. Marital Rights
The Mutual Rights of Husband and Wife
The Wife’s Rights over Her Husband
23. Mahr
The Amount of Mahr
It Is Disliked to Exaggerate the Amount of Mahr
Immediate and Deferred Mahr
Cases in Which the Full Mahr Is Obligatory
Full Mahr Is Due for Intercourse in an Invalid Marriage
Marriage without Specifying the Mahr
Mahr al-Mithl Is Obligatory Due to Intercourse or Death before Intercourse
What Is Mahr al-Mithl?
Mahr Less Than Mahr al-Mithl
Marriage of a Minor Girl
When Is Half the Mahr Obligatory?
The Obligation of Mut‘ah
When Is Mahr Cancelled?
Increasing the Mahr after the Contract
Declared and Secret Mahr
Taking Possession of the Mahr
24. Dowry
25. The Wife’s Living Expenses and Maintenance (Nafaqah)
Reasons Why Maintenance Is Obligatory
Conditions for Entitlement to Maintenance
When the Wife Alone Accepts Islam, without Her Husband
When the Husband Becomes an Apostate
The Zahiri Madhhab’s Opinion on Receiving or Not Receiving Maintenance
The Amount and Basis of Maintenance
The Hanafis’ Opinion on Determining the Amount of Maintenance
The Shafi‘is’ Opinion on Determining the Amount of Maintenance
Is Maintenance to Be Fixed in Currency or Goods?
Change in the Husband’s Financial Condition or in Market Prices
Maintenance Is a Valid Debt for Which the Husband Is Responsible
Rules for Waiving and Deducting a Maintenance Debt
Paying Maintenance in Advance and the Wife Subsequently Becoming Ineligible
Maintenance of a Wife Observing ‘Iddah
Maintenance of an Expatriate Wife
26. The Wife’s Moral Rights
1. Kind Treatment
2. Protecting the Wife
3. Sexual Relations between Husband and Wife
4. One Should Not Be Completely Naked during Intercourse
5. Saying Bismillah during Intercourse
6. Conversation between Husband and Wife Concerning Intercourse
7. Satisfying Sexual Desire through an Unnatural Means
8. Coitus Interruptus and Birth Control
9. Ruling on Abortion
27. Ila
Definition
The Duration of Ila
The Ruling on Ila
The Divorce Effected by Ila
The ‘Iddah of a Wife against Whom Ila Has Been Pronounced
28. The Husband’s Rights over His Wife
Not Allowing into the Home Anyone Whom the Husband Dislikes
The Wife Serving Her Husband
Exceptions to Truthfulness between Husband and Wife
Keeping the Wife in the Husband’s Home
Moving Residence with the Wife
The Condition That the Wife Not Be Removed from Her Home
Not Allowing the Wife to Work
A Woman Going Out to Acquire Knowledge of Islam
Disciplining a Disobedient Wife
The Wife’s Adornment for Her Husband’s Pleasure
29. Tabarruj
Meaning of Tabarruj
Tabarruj in the Qur’an
Tabarruj Is Contrary to Both Islam and Civilization
Causes of Deviation
Consequences of Deviation
Remedy for the Distressing Condition
Removing a Doubt
30. The Husband’s Adornment to Please His Wife
The Parable of Umm Zar’s Husband
31. The Sermon before Marriage
32. Publicizing the Marriage
Music at Weddings
33. Giving Good Counsel to the Bride at Marriage
It Is Mustahabb to Advise the Wife
The Father’s Advice to His Daughter at Marriage
The Husband’s Advice to His Wife
A Mother’s Advice to Her Daughter about Marriage
34. Walimah or Wedding Feast
35. Marriage of Non-Muslims
Chapter Ten: Divorce
Definition
Divorce Is Disliked
The Ruling on Divorce in Shariah
The Rationale for Divorce
Divorce in Jewish Society
Divorce in Christianity
Divorce in the Age of Ignorance
Divorce Is the Sole Right of the Man
Whose Divorce Is Effective?
Divorce under Compulsion
The Divorce of an Intoxicated Person
The Divorce of an Angry Person
Divorce in Jest
Divorce Issued Carelessly or by Mistake
The Divorce of an Unconscious Person
Those upon Whom Divorce Takes Effect
Those upon Whom Divorce Does Not Take Effect
Divorce before Marriage
By What Means Does Divorce Take Effect?
Divorce by Words
Ambiguous or Allusive Words
Explicit Words
Does Declaring One’s Wife Forbidden to Oneself Constitute Divorce?
Divorce in Writing
The Gesture of a Mute Person
Sending a Messenger
Having Witnesses to Divorce
Those Who Consider Witnesses to Divorce Necessary
Categories of Divorce
Sunnah Divorce and Bid‘ah Divorce
Sunnah Divorce
Bid‘ah Divorce
Those Who Hold That Bid‘ah Divorce Is Ineffective
Divorce of a Pregnant Woman
Divorce of a Minor Girl
Number of Divorces
Irrevocable Separation Divorce
Raj‘i and Ba’in Divorce
Ruling on Raj‘i Divorce
The Husband’s Relationship with a Wife Who Has Received Raj‘i Divorce
Raj‘i Divorce Reduces the Number of Divorces
Ba’in Divorce
Types of Ba’in Divorce
Ruling on Minor Ba’in Divorce
Ruling on Major Ba’in Divorce
Does the Second Husband Eliminate the First Husband’s Opportunity of Divorce?
Divorce Issued on the Deathbed
Giving the Wife or Someone Else the Power to Divorce
Wording for Giving the Wife the Power to Divorce
1. “You Decide Your Own Path” or “Choose Your Own Future”
2. “Your Authority or Power Is in Your Hands”
Is the Husband’s Intention Considered, or the Wife’s?
Is Delegating the Power of Divorce to the Wife Effective Immediately?
Revoking the Husband’s Delegation of the Power of Divorce
3. “If You Wish, Divorce Yourself”
Divorce through Appointment of an Agent
Using Unconditional and Conditional Wording in Delegating the Power of Divorce
Delegating the Power of Divorce at the Time of the Contract and Afterwards
Circumstances in Which the Court May Grant Divorce
Divorce Because of Failure to Provide Maintenance
Divorce Because of Harm and Abuse
Divorce Because of the Husband’s Absence
Seeking Divorce Because the Husband Is Imprisoned
Chapter Eleven: Khul‘
What Is Khul‘?
Words Used in Khul‘
The Compensation for Khul‘
Anything by Which Mahr Is Permissible May Be Given as Compensation for Khul‘
Khul‘ in Exchange for More Than What Was Received from the Husband
Khul‘ without Cause
Khul‘ by Mutual Consent of Husband and Wife
The Wife’s Aversion Is Sufficient for Khul‘
It Is Haram to Mistreat the Wife to Force Her to Seek Khul‘
Khul‘ Is Permissible during Purity and Menstruation
Khul‘ between the Husband and a Third Party
Khul‘ Gives the Woman Authority over Herself
Khul‘ by a Sane Young Girl
Khul‘ by a Discerning Minor
Khul‘ by a Wife Deprived of the Right to Conduct Transactions
Khul‘ between the Guardian of a Minor Wife and Her Husband
Khul‘ by a Sick Woman
Is Khul‘ Divorce or Separation?
May a Woman Who Has Obtained Khul‘ Be Divorced?
The ‘Iddah of a Woman Who Has Obtained Khul‘
The Husband’s Harsh Conduct
Discord between Husband and Wife
Chapter Twelve: Zihar
Definition
Is Zihar Restricted to the Mother?
Conditions of Zihar
Temporary Zihar
Consequences of Zihar
Intercourse with the Wife before Expiation
Expiation for Zihar
Chapter Thirteen: Incidental Circumstances Concerning Annulment of Marriage
Examples of Marriage Becoming Annulled Due to Incidental Circumstances
Annulment of Marriage by the Court
Chapter Fourteen: Li‘an
Definition
Nature of Li‘an
The Shariah Ruling on Li‘an
When Is Li‘an to Be Performed?
Only an Official or Recognized Judge May Decide Li‘an
Conditions of Li‘an
Can Li‘an Proceed after Witnesses Are Found?
Is Li‘an Testimony or an Oath?
Li‘an by a Blind or Mute Person
Who Performs Li‘an First?
Refraining from or Withdrawing from Li‘an
Separation between the Husband and Wife Performing Li‘an
When Does Separation Occur?
Is Separation by Li‘an Divorce or Annulment of Marriage?
Assigning the Child to and Linking the Child with the Mother
Chapter Fifteen: ‘Iddah
1. Definition of ‘Iddah
2. The Rationale for ‘Iddah in Shariah
3. Categories of ‘Iddah
The ‘Iddah of a Wife with Whom Intercourse Has Not Occurred
The ‘Iddah of a Wife with Whom Intercourse Has Occurred
The ‘Iddah of a Menstruating Woman
The Minimum Duration of ‘Iddah Based on Both Menstruation and Purity, Known as Quru’
The ‘Iddah of a Girl Who Has Not Yet Menstruated
What Should a Menstruating Woman Do When Her Menstruation Stops?
The Age at Which Menstruation Ceases Due to Old Age
The ‘Iddah of a Pregnant Woman
The ‘Iddah of a Widow
The ‘Iddah of a Woman Suffering from Istihadah
‘Iddah Is Necessary Even When the Marriage Was Invalid
When ‘Iddah Based on Menstruation Changes to ‘Iddah Based on Months
The Divorce of a Fleeing Husband
Changing from Calculation by Months to Calculation by Menstruation
Completion of ‘Iddah
‘Iddah Must Be Observed in the Husband’s Home
Difference of Opinion Regarding a Woman Leaving during ‘Iddah
Mourning of a Woman Observing ‘Iddah
Maintenance of a Woman Observing ‘Iddah
Chapter Sixteen: Matters Concerning Child Custody
Meaning and Definition
Child Custody Is a Joint Right
The Mother Has Greater Right to the Child than the Father
Order of Priority in the Right to Child Custody
Conditions for Child Custody
Remuneration for Child Custody
Child Custody without Remuneration
Completion of the Custody Period
The Law of Sudan
Children’s Freedom upon Completion of the Custody Period
When a Child Alternates between the Father and Mother
Relocating the Child
Court Judgments
Chapter Seventeen: Hudud (Islamic Criminal Penal Law)
Punishable Offences
The Rationale for These Punishments
Implementing the Hudud Is Obligatory
Interceding Regarding the Hudud
The Hadd Is Waived When Doubt Arises
What Are the Types of Doubt?
Who Has the Authority and Responsibility to Implement the Hadd?
The Legitimacy of Concealing the Offender in Hudud Cases
A Muslim Concealing His Own Fault
Expiation for a Sin for Which a Hadd Was Prescribed
Implementing the Hadd in Dar al-Harb
It Is Prohibited to Implement a Hadd in a Mosque, Lest It Be Soiled
May a Judge Rule According to Information Known to Him Personally?
Drinking Alcohol
The Gradual Measures for Prohibiting Alcohol
Islam’s Strictness in Prohibiting Alcohol
The Prohibition of Alcohol in Christianity
The Harm of Alcohol
What Is Alcohol?
Several Well-Known Types of Alcohol
Drinking Juice and Preserved Extracts
When Alcohol Turns into Vinegar
Intoxicants
Using Intoxicants
Trading in Intoxicants and Taking Them as a Means of Commercial Profit
Cultivating Intoxicant Plants for Sale and Extracting Intoxicating Substances from Them for Consumption or Trade
Profit Acquired through Intoxicants
2. The Punishment of the Drinker
How Is the Punishment Proven?
Conditions for Implementing the Hadd
Being Free and Muslim Is Not a Condition for Implementing the Hadd
Medical Treatment with Alcohol
3. The Punishment for Adultery
The Gradual Measures for Prohibiting Adultery
Adultery for Which Punishment Is Necessary
Categories of Adulterers
The Punishment of an Unmarried Person
Combining Flogging and Exile
The Hadd for a Married Person
Conditions for Stoning
Muslims and Non-Muslims Are Equal in the Punishment for Adultery
The Opinions of the Jurists
Implementing Both Flogging and Stoning
Conditions for Applying the Punishment for Adultery
How Is Adultery Proven?
Proving Adultery through Confession
The Punishment Is Waived if the Confession Is Retracted
Confessing Adultery with a Woman While She Denies It
Proving Adultery through Testimony
May a Judge Rule According to Information Known to Him Personally?
Is Adultery Proven by Pregnancy?
The Hadd Is Waived if Evidence Establishing the Accused’s Innocence Is Found
When a Child Is Born after Six Months
At the Time of Implementing the Hadd
Must a Pit Be Dug for the Person to Be Stoned?
The Ruler and Witnesses Being Present at the Stoning
The Presence of a Group of Muslims When the Hadd Is Implemented
Rules for Striking in the Case of Flogging
Giving Respite to an Unmarried Person
Is Blood Money Due if the Offender Dies from Flogging?
Male Homosexuality or Sodomy
The Jurists’ Opinions on Homosexuality
Masturbation
Female Homosexuality
Bestiality
Rape or Sexual Assault
Intercourse by Mistake
Virginity Remaining Intact
Intercourse in a Marriage over Which There Is Disagreement
Intercourse in an Invalid Marriage
4. Hadd al-Qadhf (Punishment for Slander)
Slander Is Haram
Conditions for the Punishment of Slander
Conditions Required of the Slanderer
Conditions Required of the Person Slandered
Conditions Required Regarding the Offence for Which the Slander Was Made
How Is Hadd al-Qadhf, or the Punishment for Slander, Proven?
The Worldly Punishment of the Slanderer
How to Repent
Parents Slandering Their Child
Repeatedly Slandering the Same Person
Slander at a Group Level
Is the Hadd Allah’s Right or the Right of People?
When Is the Punishment for Slander Waived?
5. The Punishment for Apostasy
Definition of an Apostate
If a Disbeliever Abandons His Religion and Enters Another Disbelieving Religion, Is He Also Considered an Apostate?
A Muslim May Not Be Called a Disbeliever Merely for Committing a Sin
When Does a Muslim Become an Apostate?
Some Signs Indicating Disbelief
The Punishment of an Apostate
The Rationale for the Death Penalty for an Apostate
The Necessity of Trying to Make an Apostate Repent
Legal Rulings Concerning an Apostate
The Punishment of a Zindiq
Is a Sorcerer Liable to Be Killed?
The Punishment of Astrologers and Soothsayers
6. The Punishment for Banditry, Highway Robbery, Terrorism and Rebellion
Definition
Banditry, Highway Robbery, Terrorism and Rebellion as Major Offences
Conditions for Punishing Banditry, Terrorism and Treason
Punishment for Banditry, Terrorism and Anarchy
The Punishment Prescribed in the Verse
The Argument of Those Who Hold That “Or” Indicates Freedom of Choice
The Argument of Those Who Say That “Or” Indicates Variety Rather Than Choice
Explanation of the Different Punishments according to the Categories of Offences
Answer to an Objection
The Duties of the Ruler and Society Regarding Banditry and Terrorist Activity
If Terrorists and Bandits Repent before They Are Apprehended
Conditions of Repentance
The Punishment Is Forgiven if the Offender Repents before Being Taken to the Ruler
The Struggle to Defend Oneself and Protect the Lives and Property of Others
7. The Punishment for Theft
The Rationale for the Severe Punishment of Theft
Types of Theft
Definition of Theft
An Embezzler, Looting Plunderer and Betrayer Is Not a Thief
Borrowing and Then Denying It
The Shroud Thief
Conditions to Be Observed for the Punishment of Theft
Conditions Required of the Thief for the Theft to Be Punishable
Conditions Required of the Stolen Property for the Theft to Be Punishable
When Is the Value of Stolen Property to Be Determined?
Collective Theft
Conditions Required of the Place from Which the Theft Occurred
Variation in Safeguarding Arrangements According to the Property
A Person’s Own Secure Place for His Property
Pickpocketing
The Mosque as a Secure Place
Theft from a House
Is the Owner’s Complaint Necessary for the Punishment of Theft?
If the Thief Claims the Stolen Property as His Own
Teaching the Thief Devices That Nullify the Punishment
The Punishment for Theft
After the Thief’s Hand Is Cut Off, the Bleeding Must Be Stopped and the Wound Healed
Hanging the Thief’s Severed Hand around His Neck
The Need for Both Compensation and the Hadd
Chapter Eighteen: Criminal Offenses (Murder and Injury)
Security of life
Human dignity
The right to life
Qisas: In Islam and the Age of Ignorance
When qisas becomes the sole demand instead of forgiveness
Qisas for loss of life
Types of murder
Consequences of murder
Conditions making qisas obligatory
Deceptive murder, secret murder, and murder following abduction
Putting an entire group to death in retaliation for one person
When one person restrains someone and another kills him
How qisas is established
Conditions for carrying out qisas against the offender
The time for carrying out qisas
By what means qisas is to be carried out
Can the murderer be killed in the Sacred Sanctuary?
Waiving qisas
The court’s authority in implementing qisas
When the heir of the slain person is missing
Disputes concerning qisas
Qisas for injuries less serious than loss of life
Conditions for qisas in offenses less serious than loss of life
Qisas for bodily organs
Conditions for qisas for bodily organs
Qisas for intentional injury
When a group participates in cutting off or injuring someone
Qisas for beating, slapping, kicking, and insulting
Qisas for destruction of property
Compensation with something of equal value
Injuring someone or plundering property
Obtaining qisas from the ruler
When a wife is struck, is qisas to be taken from the husband?
No qisas until the injury has healed
When death occurs because of carrying out qisas
Diyah or blood money
Definition
The purpose of diyah
The amount of diyah
Murders for which diyah is obligatory
Light and heavy diyah
Heavy diyah for assault in a sacred month, in a sacred city, and against a close relative
Upon whom diyah is obligatory
Diyah for bodily organs
Diyah for the benefits of bodily organs
Diyah for injuries to the head and face
Diyah for women
Diyah for the People of the Book
Diyah for an unborn child
Diyah need not be paid before recovery
When a corpse is found among disputing groups
Murder after payment of diyah
When two combatants die in mutual conflict
Liability for harm caused by domestic animals
Liability for harm caused by an animal by its driver or rider
Damage caused by a tethered animal
Compensation for crops destroyed by livestock
Compensation for things destroyed by birds
Liability for harm caused by cats and dogs
Which animals may and may not be killed
Harms for which there is no liability
1. When the biter’s tooth falls out
2. When someone looks inside another’s house without permission
3. Killing in defense of life, property, and honor
4. The claim of killing in self-defense
5. Liability for damage caused by fire
6. Destroying another’s crops
7. Liability for the sinking of a boat
8. A physician’s liability
9. When a wife’s vagina is torn and widened through intercourse with her husband
10. When a wall collapses on someone and causes his death
11. The liability of one who digs a well, and other matters
Permission to consume food
Qasamah, or collective oath
Qasamah: an Arab practice upheld by Islam
The legal status of judgment and settlement on the basis of qasamah
Chapter Nineteen: Ta‘zir
1. Definition of ta‘zir
2. The Shariah basis of ta‘zir
3. The rationale for instituting ta‘zir in the Shariah and the difference between ta‘zir and hudud
4. Methods of ta‘zir
5. Inflicting more than ten lashes
6. Ta‘zir by means of killing
7. Ta‘zir by confiscating property
8. The ruler’s authority regarding ta‘zir
9. Compensation for ta‘zir
Chapter Nine: Marriage
The union of man and woman is one of the natural laws of Allah Most High. He has made this rule and law inherent in all creation. No human being, animal, or plant is free from this natural law. Allah Most High says:
وَمِنْ كُلِّ شَيْءٍ خَلَقْنَا زَوجَينِ لَعَلَّكُمْ تَذَكَّرُونَ
Meaning: I have created everything in pairs, so that you may take heed. (Surah adh-Dhariyat: verse 49)
He also says:
سبحن الَّذِي خَلَقَ الْأَزْوَاجَ كُلَّهَا مِمَّا تُنبِسُ الْأَرْضِ وَمِنْ الْفُسِهِمْ وَمِمَّا لَا يَعْلَمُونَ .
Meaning: Glory be to that perfect, holy Creator who created pairs of all things—the plants, human beings themselves, and also things of which they have no knowledge. (Surah Ya-Sin: verse 36)
Allah Most High has ordained this very system for birth and the growth of offspring. By creating the opposite sexes, male and female, He has caused the continuity of life and creation to continue. Allah Most High says:
بابها النَّاسُ إِنَّا خَلَقْنَكُمْ مِنْ ذَكَرٍ وَأُنثَى وَجَعَلْنَكُمْ شُعُوبًا وَقَبَائِلَ لِتَعَارَفُوا ،
Meaning: O mankind, I have created you from a male and a female. (Surah al-Hujurat: verse 13)
He also says:
يأَيُّهَا النَّاسُ اتَّقَوْا رَبَّكُمُ الَّذِي خَلَقَكُمْ مِّن نَّفْسٍ وَاحِدَةٍ وَخَلَقَ مِنْهَا زَوْجَهَا وَبَثَّ مِنْهُمَا رِجَالاً كَثِيرًا وَنِسَاءً وَاتَّقُوا اللَّهَ الَّذِي تَسَاءَلُونَ بِهِ وَالْأَرْحَامَ مَا إِنَّ اللَّهَ عَلَيْكُم رقيبان
Meaning: O mankind! Be mindful of your Lord, who created you from a single person and created from him his wife, and from the two produced countless men and women. (Surah an-Nisa: 1)
Allah Most High did not wish human beings to be like other creatures. Therefore, He did not leave the union of human men and women without rules or restraints. Rather, He provided rules and regulations suited to human honor and dignity.
For this purpose, Allah Most High provided the highly dignified institution of marriage for the union of man and woman. This institution is founded on mutual consent, its proof being ijab-qabul (proposal and acceptance), and witnesses to their acceptance of one another through that proposal and acceptance. This is the most honorable and sensible way for the union of men and women and the preservation of lineage. Through it, women gain protection from the hands of promiscuous desire. This way carries the family and lineage along a pure course. Through this method, human children can be raised amid a mother’s heartfelt affection and a father’s gentle care. Thus the finest fields and perfect fruits are produced. This is Allah’s chosen system for humanity. Islam has established and legislated this system, and has abolished all other methods.
1. Forms of marriage abolished by Islam
Among the forms of union between men and women that Islam has prohibited is the practice of establishing secret love relationships between boys and girls.
Islam prohibited the practice of wife-swapping. In the Age of Ignorance, it was customary for one man to say to another, “Give me your wife, and I will give you mine, and I will give you something extra.” This was narrated by Daruqutni. However, the chain of this narration is extremely weak.
Besides these two, several other forms of union between men and women practiced in the Age of Ignorance are known from Aishah (may Allah be pleased with her), all of which Islam completely prohibited. Aishah (may Allah be pleased with her) said: There were four types of marriage practiced in the Age of Ignorance. They were:
1. One man would propose to another for the marriage of his own daughter or a girl under his guardianship. The proposal would be accepted, and the girl would be married to him.
2. Sending a woman to have intercourse with another man. Sometimes, after a wife became pure from menstruation, her husband would tell her, “Go to so-and-so and tell him to have intercourse with you, so that you may become pregnant by him.” He would then refrain from intercourse with his wife until her pregnancy became evident. Once it became clear that she had become pregnant by that other man, he would resume intercourse with her.
3. Sometimes a group of men, no more than ten in number, would go to a woman and all have intercourse with her. She would then become pregnant and give birth. A few days after giving birth, she would summon all those men. No one had the ability to refuse her summons; they would all appear before her at the appointed time. She would then say to them: “You know what you have done. As a result of your act, I became pregnant and gave birth. O so-and-so, this is your child.” She would attribute the child to whichever of them she wished, and the man had no means of denying her claim.
4. The fourth type of marriage was that countless men would visit a woman. They would enter her house and have intercourse with her, and she would turn none of them away. These women were prostitutes. They would place a flag at the door of their house as a sign of this business, and anyone who wished could enter. When one of these men made her pregnant and she gave birth, she would summon all of them. When they arrived, she would compare the child’s appearance with theirs. Then, according to her own choice, she would say to one of them, “This is your child,” attach the child’s lineage to him, and declare him to be its father. The man could not deny this declaration. Such practices continued.
In the meantime, the Final Prophet, Muhammad (peace be upon him), appeared. He came and prohibited all forms of marriage and union except the first. Islam instituted this method and attached to it certain conditions and rules, including ijab (proposal), qabul (acceptance), and the requirement of witnesses. Through this method, Allah’s Shariah made marriage and union between one man and one woman lawful. Through this method, both husband and wife were granted certain rights, responsibilities, and duties.
2. Encouragement to marry
Islam has encouraged marriage in various ways. It has said that marriage is the Sunnah (example) of the Prophets and Messengers. They were our leaders, so it is our duty to follow their example. Allah Most High says:
وَلَقَدْ أَرْسَلْنَا رُسُلًا مِن قَبْلِكَ وَجَعَلْنَا لَهُمْ أَزْوَاجًا وَذُرِّيَّةٌ
Meaning: (O Muhammad!) We sent many messengers before you and gave them wives and children. (Surah 13, ar-Ra‘d: verse 38)
The Messenger of Allah (peace be upon him) said, “These four things are among the Sunnah of the Messengers: 1. using henna, 2. using perfume, 3. using the miswak (cleaning the teeth), and 4. marrying.” (Tirmidhi: Abu Ayyub (may Allah be pleased with him))
Referring to marriage and the blessing of having children as favors from Allah, Allah Most High said:
وَاللَّهُ جَعَلَ لَكُم مِّنْ الْفُسِكُمْ أَزْوَاجًا وَجَعَلَ لَكُم مِّنْ أَزْوَاجِكُمْ بَنِينَ وَحَفَدَةٌ ورزقكم من الطَّيِّبَتِ مَا أَفَبِالْبَاطِلِ يُؤْمِنُونَ وَبِنِعْمَتِ اللَّهِ هُمْ يَكْفُرُونَ
Meaning: Allah has made spouses for you from among yourselves, and from your spouses He has given you sons, daughters, and grandchildren. (Surah 16, an-Nahl: verse 72)
Allah Most High has mentioned the creation of pairs of opposite sexes and the marital relationship between them as one of His signs:
وَمِنْ ابْتِه أَنْ خَلَقَ لَكُمْ مِنْ أَنْفُسِكُمْ أَزْوَاجًا لِتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُمْ مُوَدَّةً ورحمة ، إِنَّ فِي ذَلِكَ لَآيَتٍ لِقَوْمٍ يَتَفَكَّرُونَ
Meaning: Among Allah’s signs is that He created for you spouses from among yourselves, so that you may find tranquility in them through establishing a marital relationship. For this purpose, He created affection, friendship, mercy, and compassion between you. Surely in this are abundant signs for those who reflect. (Surah 30, ar-Rum: verse 21)
Often young men fall into hesitation, confusion, and despair about marriage because of poverty and unemployment. In this regard Allah Most High says:
وَانْكِحُوا الْأَيَامَى مِنْكُمْ وَالصَّلِحِينَ مِنْ عِبَادِكُمْ وَإِمَائِكُمْ مَا إِنْ يَكُونُوا فَقَرَاء يُغْنِهِمُ اللهُ مِن فَضْلِهِ مَا وَاللَّهُ وَاسِعٌ عَلِيمٌ
Meaning: Marry off those among you who are single, and the righteous among your male and female slaves. If they are poor, Allah will enrich them from His bounty. For Allah is All-Bountiful, All-Knowing. (Surah 24, an-Nur: verse 32)
The Messenger of Allah (peace be upon him) said, “Three people have the right to Allah’s help: 1. the person engaged in jihad in Allah’s path, 2. the debtor who is diligent in intending to repay his debt, and 3. the person seeking marriage who proceeds with the intention of preserving his chastity.” Tirmidhi: Abu Hurairah (may Allah be pleased with him). Thawban (may Allah be pleased with him) relates that when the following verse was revealed:
وَالَّذِينَ يَكْنِزُونَ الذَّهَبِ وَالْفِضَّةَ وَلَا يُنْفِقُونَهَا فِي سَبِيلِ اللَّهِ لَا فَبَقِوْهُمْ بِعَذَابِ اليْم
Meaning: Give them the news of a painful punishment who hoard gold and silver and do not spend it in Allah’s path. (Surah 9, at-Tawbah: verse 34)
At that time we were traveling with the Messenger (peace be upon him). Some of us said that the verse had been revealed only concerning the hoarding of gold and silver. If we knew which wealth was best, we would acquire that. The Messenger of Allah then said: “The best wealth is a tongue that remembers Allah, a grateful heart, and a believing wife who helps her husband follow the path of faith.” —Tirmidhi, Ibn Majah.
Abdullah ibn Abbas (may Allah be pleased with him) relates that the Messenger of Allah (peace be upon him) said: “There are four things which, when granted to a person, grant him the good of this world and the Hereafter: 1. a grateful heart, 2. a tongue that remembers Allah, 3. health with which to remain steadfast in hardship, and 4. a wife who does not engage in sinful acts concerning herself or her husband’s wealth.” —Tabarani; its chain is good.
Abdullah ibn Amr ibn al-As (may Allah be pleased with him) relates that the Messenger (peace be upon him) said: “The world is a provision, and the best provision of the world is a righteous, sound, and suitable wife.” —Sahih Muslim.
It is observed that people adopt seclusion for spiritual practice, sever their connection with all worldly activities, pray throughout the night, fast every day, and abandon relations with their wives. In this way they engage in asceticism against human nature.
The teaching of Islam is that asceticism is contrary to human nature and causes distortion within the religion. The Final Prophet, Muhammad (peace be upon him), was the most God-fearing of all. Some days he fasted and some days he did not. He prayed at night and also slept. He also married. Therefore, whoever departs from his principles and way of conduct has in fact severed his relationship with him. It is narrated from Anas (may Allah be pleased with him) in Sahih al-Bukhari and Muslim that three men came to the chambers of the wives of the Messenger (peace be upon him) and began asking about his worship. When they were informed about his worship, they considered it insufficient. They said, “How insignificant are we compared with the Prophet (peace be upon him), whose past and future sins have been forgiven.” One of them said, “I will pray throughout the night for the rest of my life.” Another said, “I will fast throughout the year and never break my fast.” The other said, “I will abstain from women and never marry.”
At that time the Messenger of Allah (peace be upon him) came out and said: “Are you the ones who said such-and-such? Listen, I fear Allah more than all of you. I pray at night and I sleep as well. I fast and I also break my fast. And I have married. Whoever turns away from my way of conduct is not one of my people.”
A righteous woman is fortunate, and because of her the home remains filled with happiness and joy. Abu Usamah (may Allah be pleased with him) relates that the Messenger of Allah (peace be upon him) said: “For a believing husband, after taqwa, the most beneficial and valuable possession is a righteous and truthful wife—one who obeys when commanded, whose sight fills his heart with joy, and who, in his absence, protects her honor and her husband’s wealth.” —Ibn Majah.
Sa‘d ibn Abi Waqqas (may Allah be pleased with him) relates that the Messenger of Allah (peace be upon him) said: “The children of Adam receive three blessings and three misfortunes. The three blessings are: 1. a chaste and righteous wife, 2. a good dwelling, and 3. a good means of transport. The three misfortunes are: 1. an immoral wife, 2. a bad dwelling, and 3. a bad means of transport.” This hadith has been narrated through an authentic chain in Musnad Ahmad. Tabarani and Bazzar also narrated it. Hakim said that it is an authentic hadith.
Another hadith narrated by Hakim explains and supports this hadith. The Messenger of Allah (peace be upon him) said: “Three things are signs of good fortune: 1. a righteous wife who makes you happy when you see her and who, when you are absent, protects herself and your wealth; 2. an obedient, swift mount that takes you to your companions on time; and 3. a spacious, open house. Three things are signs of misfortune: 1. a wife whose sight saddens you, who criticizes you, and who, in your absence, does not safeguard the trust of her own property and yours; 2. a mount that is very slow, strikes back when you beat it, and does not take you to your companions on time when you do not beat it; and 3. a dwelling that is cramped and makes ordinary living difficult.”
Marriage is an act of worship. Through it, half of a person’s religion is completed. By means of it, a person has the opportunity to meet his Lord in a pure and clean state. Anas (may Allah be pleased with him) relates that the Messenger of Allah (peace be upon him) said: “If Allah grants a person a righteous and suitable wife, He has helped him with half of his religion through her. Let him fear Allah regarding the remaining half.” Tabarani, Hakim. Hakim said that the chain of this hadith is authentic.
The Messenger of Allah (peace be upon him) also said: “Those who wish to meet Allah leading a pure and clean life should marry free women.” This hadith was narrated by Ibn Majah, but its chain has weakness. Ibn Mas‘ud (may Allah be pleased with him) said: “If only ten days of my life remained, and I knew that I would die on the tenth day, then, if I had the means, I would certainly marry even for those ten days, fearing temptation!”
3. Benefits of marriage
Marriage contains immense benefit for the individual, the nation, and the whole of human society. For this reason Islam has placed such great emphasis on marriage and encouraged it. Some of the benefits and advantages of marriage are presented here:
1. A powerful biological desire has been placed within human beings. People are constantly eager to satisfy this desire. If they cannot fulfill it, they sink into extreme mental unrest, and if they do not find a lawful means of fulfilling it, they try to satisfy it through evil and immoral methods. Marriage is the natural and best solution to this problem. Through marriage alone, a person can satisfy biological, or sexual, needs with mental contentment. In this way a person can attain peace of mind, purity of character, and the ability to control unlawful gazes. Allah says:
ومِنْ ابْتِه أَنْ خَلَقَ لَكُمْ مِنْ الْفُسِكُمْ أَزْوَاجًا لِتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُمْ مَوَدَّةً ورحمة ما إِنَّ فِي ذَلِكَ لَابِي لِقَوْمٍ يَتَفَكَّرُونَ
Meaning: One of Allah’s signs is that He created for you spouses from among your own kind, so that you may find tranquility in them; and for this purpose He created affection and mutual compassion among you. (Surah 30, ar-Rum: verse 21)
Abu Hurairah (may Allah be pleased with him) relates that the Messenger of Allah (peace be upon him) said: “A woman comes forward in the form of Satan and turns away in the form of Satan. Therefore, when one of you is captivated by another woman, let him go to his own wife. Through this, his desire will be fulfilled.” —Muslim, Abu Dawud, Tirmidhi.
2. Marriage is the best means of having children. It is the proper way to increase the lineage. It is the means of adorning life with flowers and fruits and securing the lineage. The Messenger of Allah (peace be upon him) said: “Marry women who are loving and capable of bearing many children, for on the Day of Resurrection I will appear with a greater number of you than the combined numbers of the communities of the other Prophets.”
Once Ahnaf ibn Qays (may Allah be pleased with him) entered the court of Muawiyah (may Allah be pleased with him). Yazid was seated before him. He gazed at him admiringly. Muawiyah (may Allah be pleased with him) then asked, “O Abu Bahar, what is your view of children?” Understanding the purpose of his question, Ahnaf replied: “O Commander of the Believers, children are the pillars of our lineage; the fruits of our hopes; the coolness of our eyes; through them we confront our enemies; they are our successors. Leave fertile land and a shaded sky for them. Give them whatever they ask for. If they seek your satisfaction, be pleased with them. Do not close your open hand toward them. If you do so, they will not remain close to you, will dislike your being alive, and will wish for your death.” Hearing this, Muawiyah said, “O Abu Bahar, may Allah prolong your life. Children are exactly as you have described them.”
3. Fatherhood and motherhood develop and reach completion through raising young children. Through this, the qualities of affection, love, tenderness, compassion, and gentleness develop in people. The status of fatherhood and motherhood is such that without it human qualities do not reach completion. Marriage is essential for attaining this status.
4. In married life, people develop a sense of responsibility and duty by fulfilling the responsibilities and duties that husband and wife owe to each other and those they owe to their children. The devotion and sincerity with which one fulfills responsibilities and duties as a husband, wife, father, or mother provide immense training for fulfilling responsibilities in broader social and national life.
5. Through establishing married and family life, people develop motivation to work and acquire the ability to manage affairs. A woman undertakes many responsibilities, including raising children, ensuring their proper development and education, managing the household, and entertaining relatives. On the other hand, the man bears the overall expenses of managing the household. Therefore, he goes out to earn a livelihood and works extremely hard. He also performs various social activities. Thus, both women and men remain occupied with fulfilling their respective responsibilities. Through fulfilling these natural and innate responsibilities, they attain Allah’s pleasure; consequently, the family, society, country, and nation become blessed.
6. Marriage establishes social bonds among people. Bonds and kinship ties expand, thereby strengthening society. Compassion, love, and mutual sympathy increase within society.
7. A United Nations resolution adopted on Saturday, June 6, 1959, stated that married couples live longer than unmarried people.
This resolution also proves that marriage and married life benefit the health and longevity of both men and women.
4. The Shar‘i Rulings of Marriage
1. Obligatory marriage: Marriage is obligatory for those who wish and are able to protect themselves from indecency and transgression. This is because preserving oneself from unlawful acts is obligatory for a believer, and this is not possible without marriage. Imam al-Qurtubi said that marriage is obligatory for anyone who fears that his personal and religious purity may be corrupted, provided he is able to marry, because he cannot preserve his chastity without marriage. There is no disagreement that marriage is obligatory for such a person. Whoever needs to marry but lacks the financial means should preserve his chastity, in accordance with Allah’s command, until he gains the ability. Allah the Exalted says: “Those who do not have the means to marry should remain chaste until Allah enriches them from His bounty.” (Surah 24, al-Nur: 33)
Such people should fast frequently. It has been narrated from Ibn Mas‘ud (may Allah be pleased with him) in numerous hadith collections. He said that the Messenger of Allah (peace and blessings be upon him) said: “Young men, those among you who are able should certainly marry, for marriage lowers the gaze and preserves chastity. Whoever is unable should fast, for fasting protects his chastity.”
2. Recommended marriage: Marriage is recommended for one who has the financial means to marry and is also capable of protecting himself from unlawful acts and remaining chaste. Nevertheless, marriage is better for him than worshipping in seclusion, because asceticism has no place in Islam. Al-Tabarani narrated through Sa‘d ibn Abi Waqqas that the Messenger of Allah (peace and blessings be upon him) said: “Allah has replaced monasticism for us.” Al-Hakim narrated through Abu Umamah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Marry, for through you my community will become greater in number. Do not practice asceticism like the Christians.” ‘Umar (may Allah be pleased with him) told Abu Zawa’id: “A person may abstain from marriage only because of old age or because he is immersed in indecency.” Ibn ‘Abbas (may Allah be pleased with him) said: “Without marriage, sacrifice is not complete.”
3. Unlawful marriage: Marriage is unlawful for one who lacks sexual ability and also lacks the financial means.
Al-Qurtubi said that if a man seeking marriage knows that he is unable to provide his wife’s maintenance, dowry, and other rights, it is not lawful for him to marry without clearly informing the prospective bride of these matters. Likewise, if he has a sexual defect or incapacity, he must clearly disclose it so that the prospective bride is not deceived. Similarly, it is unlawful for a prospective groom to give false descriptions of his lineage, wealth, business, or other matters.
The same applies to the prospective bride. If she knows that she is unable to fulfill her husband’s rights, or suffers from a mental illness, a serious sexual disease, or another grave illness, it is obligatory for her to clearly inform the prospective groom beforehand, so that he is not deceived.
If, after marriage, either the husband or wife discovers in the other a defect that was not disclosed before marriage, it is permissible for that person to dissolve the marriage. If the wife had concealed such a matter, then after it becomes known, the husband may divorce her and recover the dowry and other expenses or gifts he had given.
4. Permissible marriage: Marriage is permissible when the desirable conditions of marriage are present and the prohibited matters are absent.
5. Asceticism is prohibited for one who has the means to marry
1. Ibn ‘Abbas (may Allah be pleased with him) narrated that a man came to the Messenger of Allah (peace and blessings be upon him), mentioned his extreme poverty and inability to marry, and further asked: “Should I castrate myself?” The Messenger (peace and blessings be upon him) said: “Whoever castrates himself or wishes to be castrated is not one of us.” —al-Tabarani
2. Sa‘d ibn Abi Waqqas narrated that the Messenger of Allah (peace and blessings be upon him) rejected ‘Uthman ibn Maz‘un’s proposal to devote himself to worship in seclusion. He said: “Had he permitted him, we would have castrated ourselves.” —al-Bukhari. Sa‘d’s statement means that if the Messenger had permitted him to practice asceticism, that permission would have encouraged us to castrate ourselves. Al-Tabari said that by proposing seclusion, ‘Uthman ibn Maz‘un essentially wished to abandon marriage, give up perfume, and refrain from other bodily pleasures. It was concerning him that Allah the Exalted revealed this verse: “O believers, do not declare unlawful the good and pure things that Allah has made lawful for you, and do not transgress. Allah does not like transgressors.” (Surah al-Ma’idah: 87)
Marriage before Hajj: If marriage becomes necessary for a person and he fears transgression if he does not marry, then he should marry before Hajj, even if Hajj is obligatory for him. If he does not fear transgression, he should perform Hajj first. Likewise, if there is no fear of transgression, he may undertake acts that are Fard Kifayah—such as acquiring knowledge and participating in jihad—before marriage.
Remaining unmarried and its causes: It has become clear from the discussion so far that marriage is an extremely important matter in human life. There is no opportunity to remain free from marriage. There are only two obstacles to marriage: 1. incapacity and old age; 2. fornication or unlawful sexual conduct. This is the view of Amir al-Mu’minin ‘Umar (may Allah be pleased with him). Asceticism has no place whatsoever in Islam. If people do not marry, they are deprived of countless benefits and beauties.
Nowadays, indecency, shamelessness, unrestricted mixing, and women’s outward-oriented activities have created a major obstacle to marriage. As a result, on the one hand the family system is breaking down, while on the other the tendency to enter the marital bond and marry has declined. Women’s outward-oriented adornment and unrestricted premarital conduct have created an atmosphere of suspicion, doubt, and mistrust regarding the marital bond. Excessive dowries, lavish maintenance demands, and various forms of wastefulness have created a major obstacle to marriage. Because of unrestricted mixing, when a young man or woman becomes ready to marry, suspicion discourages that person from marriage. Consequently, marriage is being discouraged while the rate of divorce continues to rise.
Therefore, it is an essential duty of Muslims to strengthen the family system, provide sound education to their children, and create an Islamic influence and environment within the family.
6. Choosing a bride
A wife is the object of her husband’s comfort and tranquility, his field, his life companion, the manager of his home, the mother of his children, the fulfillment of his desires, and the center of his privacy. A wife is the most important pillar of her husband’s family and the primary caregiver of his children. From her, children inherit beautiful and excellent qualities. From her they receive streams of affection, love, tenderness, and care. She is their principal teacher in education, manners, and character. Children are most devoted and attached to her. They become accustomed to her habits, adopt her religion, and learn religious and social customs from her.
For this reason, Islam has placed great importance on choosing a righteous, pure, and religious wife. It has described seeking a good wife as extremely important and called a good wife the world’s finest possession. Only a good, righteous, and pure wife can safeguard her husband’s religion, fill the family with goodness and blessings, protect her husband’s rights, and raise the children properly.
Conversely, in choosing a wife, beauty and wealth alone have no significance in Islam if religion, honesty, and purity are absent. Islam has warned the prospective groom against choosing such a wife. Regardless of how beautiful, wealthy, well-born, or skilled in a particular profession a woman without religion, honesty, and purity may be, there is a grave risk that she will create tribulation in married life. The peace and happiness of married life are bound to collapse, and raising the children properly becomes impossible. Married life then becomes bitter and poisonous, and eventually family life moves toward ruin. This is because a woman’s beauty without religion is a tribulation; her wealth is a tribulation; her lineage is a tribulation; and her other worldly attributes are also tribulations. Therefore, the Messenger of Allah (peace and blessings be upon him) warned against marrying such women. He said: “Beware of the captivating veil.” He was asked, “O Messenger of Allah, what is the captivating veil?” He replied: “Those beautiful women whose character is bad.” —al-Daraqutni
The Messenger of Allah (peace and blessings be upon him) also said: “Do not marry women merely because they are beautiful, for their beauty may make them unruly. Nor marry women merely because they possess wealth, for their wealth may make them rebellious. Marry women for their religious commitment; even a disfigured slave woman, if religious, is better than them.” This hadith was narrated by ‘Abd al-Rahman ibn Humayd.
In another hadith, the Messenger of Allah (peace and blessings be upon him) said: “Whoever marries a woman for her wealth, Allah will increase his poverty. Whoever marries a woman because of her lineage, Allah will diminish his honor and status. But whoever marries a woman with the aim of lowering his gaze, preserving his sexual purity, or increasing his progeny, Allah will place goodness in that wife for him and bless the wife through her husband.” —Ibn Hibban, in his collection of weak hadiths.
These hadiths are warnings. They warn against marrying women without religion and thereby becoming immersed in distress. However, there is nothing wrong with a woman possessing these qualities in addition to religious commitment. In this regard, the Messenger of Allah (peace and blessings be upon him) said: “A woman may be married for four qualities: 1. her wealth, 2. her lineage, 3. her beauty, and 4. her religious commitment. May you prosper; marry for her religious commitment.” —al-Bukhari and Muslim
In essence, righteous, pure, and good wives are those who are beautiful, obedient, honest, and trustworthy. The Messenger (peace and blessings be upon him) said: “The best wife is one whose sight fills you with joy, who obeys you humbly when you command her, and who, when you swear an oath against her out of hurt feelings, dispels your resentment with love and affection; and in your absence she guards and protects herself and your wealth.” —al-Nasa’i and other collections, through authentic chains.
The prospective bride should have a balanced temperament and a sound physical constitution. In particular, she should be free of arrogance and possess a good heart. She will have to care for the children and safeguard her husband’s rights. When the Messenger of Allah (peace and blessings be upon him) sent a marriage proposal to Umm Hani, she expressed her inability, saying, “I have many children; if I marry, their upbringing will be disrupted.” The Messenger of Allah (peace and blessings be upon him) then said: “The best of women are the righteous, pure, and excellent women who ride the camels of Quraysh. They are affectionate toward their children and mindful of their husbands’ rights.” A believer must certainly seek a good bride, for good seed produces good fruit. The Messenger of Allah (peace and blessings be upon him) said: “People are like mines of gold and silver. Those who were good before accepting Islam remain excellent after accepting Islam, if understanding of religion enters them.” The significance of this hadith is that when raw gold from a mine is refined, it remains gold; it does not become silver. When raw silver is refined, it remains silver; it does not become gold. Similarly, whoever possesses good qualities before accepting Islam retains and develops those same qualities after accepting Islam.
The first purpose of marriage is having children. Therefore, a healthy and strong bride should be chosen. For comparison, the health and childbearing capacity of her sisters and maternal aunts may be taken into consideration. A man proposed marriage to a barren woman who could not bear children. The Messenger of Allah (peace and blessings be upon him) then said: “Marry women who are affectionate and capable of bearing many children, for on the Day of Resurrection I will appear with a greater number of my community through you.” People are generally more attracted to beautiful women, but they do not consider how capable a woman is of bearing many children or how affectionate she will be toward her husband. This is why the Messenger (peace and blessings be upon him) made this statement.
However, the Messenger of Allah (peace and blessings be upon him) did not tell people to disregard beauty and appearance, because people are more attracted to beauty. It is known from an authentic hadith that the Messenger (peace and blessings be upon him) said: “Allah is beautiful and He loves beauty.” Al-Mughirah ibn Shu‘bah (may Allah be pleased with him) sent a marriage proposal to a woman and informed the Messenger (peace and blessings be upon him) of the matter. He told him: “Go and look at her, for this will create lasting love and affection between the two of you.” Another Companion proposed to an Ansari woman and informed the Messenger (peace and blessings be upon him). He told him: “Go and look at her, for there is something in the eyes of the Ansari women.” Jabir ibn ‘Abdullah would look from behind a screen at the woman he intended to marry, so that he could marry her with peace of mind. The Messenger of Allah (peace and blessings be upon him) would send a woman to the prospective bride to inspect whether she had any defect. As brides, virgins are preferable because they have not previously formed a bond with another man. Thus, the marital relationship with them is fresher, sweeter, more joyful, and stronger. She will love her husband from the depths of her heart, because greater love is felt for the first companion.
When Jabir ibn ‘Abdullah married a widow, the Messenger (peace and blessings be upon him) said to him: “Why did you not marry a virgin, so that you could enjoy yourself and play with her, and she with you?” Jabir replied that when his father, ‘Abdullah, was martyred in the Battle of Uhud, he left behind many young children, and Jabir had married a widow in order to care for them.
The ages of the prospective groom and bride should be fairly close. Their social, cultural, and economic circumstances should also be similar.
Considering these matters is more beneficial for their subsequent married life.
7. Choosing a groom
A righteous and pure prospective bride does not always have the opportunity to choose a groom directly. She may not have the opportunity to examine the qualities that should be considered in a groom. For this reason, the bride’s guardians bear the greater responsibility in seeking a groom. The guardians should consider the bride’s opinion and seek a good groom who is honest, well-mannered, gentle, healthy, and righteous.
Imam al-Ghazali said in his book Ihya’ ‘Ulum al-Din that the bride’s rights must be given serious consideration when seeking a groom. It must be remembered that the husband possesses the right of divorce. Therefore, when seeking a groom, one must choose a man who is honest, courteous, gentle, and mindful of his wife’s rights. Otherwise, if the husband is oppressive, sinful, a drunkard, or an innovator, their daughter will spend her entire life in distress and discomfort. The relationship may also be severed, and relatives may be humiliated. A man asked Hasan ibn ‘Ali (may Allah be pleased with him): “I have a daughter. What kind of groom do you advise me to choose for her?”
Hasan said: “Marry her to a young man who fears Allah, who will love her and give her honor and respect. If he ever becomes angry, he should not oppress her.” ‘A’ishah (may Allah be pleased with her) said: “Marriage is a bond of affection, love, and devotion, so everyone should consider carefully to whom he is marrying the dearest part of his life.” The Messenger (peace and blessings be upon him) said: “Whoever marries the dearest part of his life, his daughter, to a sinful man has essentially severed a blood relationship.” Ibn Hibban mentioned this hadith through Anas in his collection of weak hadiths, while al-Sha‘bi mentioned it with an authentic chain. Imam Ibn Taymiyyah said: “A girl should not be married to one who is immersed in excess in sinful acts.”
8. The marriage khitbah (proposal)
What is khitbah? Khitbah is proposing marriage to a girl according to customary practice, formally through a promise to pay the dowry. Khitbah is the initial step toward marriage. Relatives from both sides attend this occasion. It has three basic elements: the proposal, the proposer, and the person to whom the proposal is made. At this occasion, the identities and qualities of both the groom and bride are discussed, along with detailed discussion of their relatives and lineage. In this way, Allah the Exalted has ordained that the proper step toward marriage be taken wisely, after becoming acquainted with each other.
To which women is it lawful to propose marriage: 1. A woman who is not married to anyone, whom it is lawful to marry, and whose marriage is not subject to any Shar‘i impediment, such as ‘iddah. 2. A woman who is not engaged to anyone; that is, no one has previously proposed marriage to her, or, if someone did propose, the woman’s side clearly rejected the proposal.
Proposing marriage to a woman observing ‘iddah: It is prohibited to propose marriage to a woman observing ‘iddah, whether her ‘iddah is due to her husband’s death or to divorce. If it is due to divorce, it makes no difference whether the divorce is revocable or irrevocable. If a woman is observing ‘iddah after a revocable divorce, it is unlawful to propose marriage to her, because she remains essentially bound to her husband, who may take her back during this period. If she is observing ‘iddah after an irrevocable divorce, including a divorce through two pronouncements, it is also prohibited to propose marriage to her, because her divorced husband retains the right to marry her anew at any time. If someone else proposes to her, this may infringe upon the divorced husband’s right. However, if the woman is no longer willing to accept her former husband, it is permissible to propose marriage to her, but the proposal must be indirect and her attitude must first be ascertained.
If a woman is observing ‘iddah because of her husband’s death, it is permissible to propose marriage to her indirectly or by implication, but not directly. Her worldly marital relationship with her husband has ended because of his death, and his rights over her no longer remain. However, it is not permissible to propose marriage to her directly during her ‘iddah, because she is mourning at that time. Moreover, this could hurt her grief concerning her deceased husband and his heirs. In this regard, Allah the Exalted says:
وَلَا جُنَاحَ عَلَيْكُمْ فِيمَا عَرَّفْتُمْ بِهِ مِنْ خِطْبَةِ النِّسَاءِ أَوْ أَكْنَنْتُمْ فِي أَنْفُسِكُمْ مَا عَلَى اللهُ انَّكُمْ سَتَذْكُرُونَهُنَّ وَلَكِنْ لا تُوَاعِدُ وَمَنْ سِرًّا إِلَّا أَنْ تَقُولُوا قَوْلًا مَعْرُوفًا وَلَا تَعْزِمُوا عُقْدَةَ النِّكَاحِ حَتَّى يَبْلُغَ الْكِتَبُ أَجَلَهُ ، وَاعْلَمُوا أَنَّ اللَّهَ يَعْلَمُ مَا فِي انْفُسِكُمْ فَاحْذَرُوهُ ، وَاعْلَمُوا أَنَّ اللَّهَ غَفُورٌ حَلِيمٌ
Meaning: “There is no blame upon you for indirectly proposing marriage to women observing ‘iddah because of their husbands’ deaths, or for keeping the matter hidden in your hearts. Allah knows that you will discuss them. But do not make secret promises to them, except by speaking in a recognized manner. Do not resolve to conclude the marriage contract before the prescribed period has ended. Know that Allah certainly knows what is in your hearts, so beware of Him. And know that Allah is Most Forgiving, Most Forbearing, and Most Honorable.” (Surah 2, al-Baqarah: 235)
In this verse, “a woman observing ‘iddah” means a woman observing ‘iddah because of her husband’s death, since the previous verse explicitly mentioned the husband’s death. The indirect or implied proposal mentioned here means speaking to her in a way that does not openly express the proposal, such as: “I need to marry.” “I want to marry.” “I wish Allah would bring me a good woman.” “May Allah grant you a good husband,” and similar expressions.
It is permissible to send a gift to a woman observing ‘iddah as an indirect proposal. It is also permissible to praise oneself to her as an indirect proposal. Abu Ja‘far Muhammad ibn ‘Ali ibn Husayn did this. Sukaynah bint Hanzalah said: “Muhammad proposed marriage to me indirectly while I was observing ‘iddah because of my husband’s death. He said to me, ‘You know that I am a grandson of the Messenger of Allah (peace and blessings be upon him). You also know that I am a grandson of ‘Ali, and you know my status among the Arabs.’ I said to him, ‘O Abu Ja‘far, may Allah forgive you! Are you proposing marriage to me while I am observing ‘iddah?’ He replied, ‘I merely informed you of my blood relationship with the Messenger of Allah (peace and blessings be upon him) and ‘Ali.’” They married after the ‘iddah ended.
A hadith with a disconnected chain has been narrated in al-Daraqutni. It states that when Umm Salamah (may Allah be pleased with her) became a widow following her husband’s death, the Messenger of Allah (peace and blessings be upon him) said to her: “You know that I am the Messenger of Allah and His Chosen One. You also know my honor and position among my people.” This was essentially a marriage proposal.
In summary, directly proposing marriage to any woman observing ‘iddah is prohibited. Indirectly proposing marriage to a widow observing ‘iddah because of her husband’s death or an irrevocable divorce is permissible. But proposing marriage during ‘iddah to a divorced woman whose divorce is revocable is unlawful.
Proposing over another person’s proposal: If someone proposes marriage to a woman, it is prohibited for another person to propose over his proposal. The matter is different if the first proposer withdraws his proposal or the woman’s side clearly rejects it. It was narrated from ‘Uqbah ibn ‘Amir (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “A believer is the brother of another believer. Therefore, when one believer offers a price for something, another believer should not offer a higher price over his offer; and when his believing brother proposes marriage to a woman, he should not propose over that proposal until the first proposer abandons it.” —Ahmad and Muslim
The prohibition is to make a proposal over another proposal when the prospective groom’s side has made a direct and explicit proposal to the prospective bride’s side, until the latter clearly rejects their proposal. However, if the groom’s side makes only an indirect proposal, or makes a direct proposal that the bride’s side does not accept, then making a new proposal is permissible. If it is not known that anyone has proposed to the woman, a proposal may be made. It is also permissible if the first suitor gives permission. Al-Tirmidhi cited the following hadith from Imam al-Shafi‘i: “If someone proposes marriage to a woman and she accepts his proposal and expresses her consent, it is not permissible for anyone else to propose to her. However, if it is not known that the bride’s side has consented, a proposal may be made. If a second person proposes after the first suitor has received her consent, and the second suitor marries her, the marriage is valid, but they will both be sinful for knowingly making a proposal over another proposal. Nevertheless, the marriage to the second suitor is valid, because the prohibition concerns making a proposal, not the marriage itself.”
9. Seeing the Prospective Bride Before Proposing
To make married life beautiful, sound, and pleasant, and to protect it from harm, one should see the prospective bride before proposing. This makes it possible to learn about her beauty and good and bad qualities and makes it easier to decide whether to accept or decline her. It is not appropriate to make a formal proposal before learning about the prospective bride’s good and bad qualities. ‘Amash said: “When people marry without seeing and learning about the prospective bride or groom, the result of that marriage is anxiety and hardship.” Seeing and learning about them is sanctioned by the Shariah. Several hadiths on this subject follow:
1. Jabir ibn Abdullah reported that the Messenger of Allah (peace and blessings be upon him) said: “When any of you intends to propose marriage to a woman, if he is able to see those features of hers that would attract him, let him do so.” Jabir said: “After hearing this, I intended to propose marriage to a woman from the Salamah tribe. I watched her from behind a screen, observing her build, beauty, manner of walking, and characteristics—those things that attracted me to marry her.” —Abu Dawud.
2. Al-Mughirah ibn Shu‘bah reported that he proposed marriage to a woman. When the matter was brought to the Messenger of Allah (peace and blessings be upon him), he asked him: “Have you seen her?” Al-Mughirah replied: “No.” The Messenger of Allah said: “Go and look at her. This is more conducive to lasting harmony and affection between the two of you.” —Al-Nasa’i, Ibn Majah, and al-Tirmidhi. Al-Tirmidhi said that the hadith is hasan.
3. Abu Hurayrah reported that a man proposed marriage to an Ansari woman. When he informed the Messenger of Allah (peace and blessings be upon him), he asked him: “Have you seen her?” He replied: “No.” He said: “Go and look at her, for there is a slight defect in the eyes of Ansari women.”
Which Parts of the Bride May Be Seen: According to most scholars, the prospective groom may see the prospective bride’s face and the palms of her hands, and no more. The face indicates beauty, while the hands indicate the build of the body. Imam Dawud al-Zahiri said: “He may see her entire bodily form, as it appears while she moves about.” However, the hadith does not specify which parts may be seen. Rather, one is told to see as much as enables him to determine whether he likes or dislikes her. (Fath al-‘Allam, vol. 2, p. 89.) Evidence for this is found in the report of Abd al-Razzaq and Sa‘id ibn Mansur. They said: “Umar proposed to Ali for the marriage of his daughter Umm Kulthum. Ali said: ‘She is still very young. I will send her to you; if you like her after seeing her, you may marry her.’ Ali then sent her. Umar uncovered and looked at her lower leg.”
If one does not like the bride after seeing her, it is better to remain silent, because she may be suitable for someone else.
The Bride Seeing the Groom: This ruling is not limited to men; it also applies to women. The prospective wife may see her prospective husband as well. Just as a woman’s beauty pleases a man, a man’s beauty pleases a woman.
Umar said: “Do not marry your daughters to ugly men. Just as a beautiful wife is dear to a man, a handsome man is also desirable to a woman.”
Learning About Qualities and Defects: Whether a man or woman is attractive or unattractive can be recognized simply by looking. But qualities and defects of temperament and character cannot be known without hearing descriptions from people, investigating, or asking questions. Such information should be gathered with the help of people who associate socially or as neighbors with the prospective groom or bride. Alternatively, it should be gathered through a trustworthy relative of either party, such as a mother or sister. Al-Hakim, al-Tabarani, al-Bayhaqi, and Ahmad report that the Messenger of Allah (peace and blessings be upon him) sent Umm Sulaym to a certain woman and instructed her to examine the thick vein above her ankle and smell her shoulders or mouth.
Imam al-Ghazali said in Ihya’ ‘Ulum al-Din: “One should ask about a prospective bride’s beauty, temperament, and character only someone who is perceptive and truthful, who knows both private and public matters, and who is neither so attached to the prospective groom or bride that he will praise excessively nor so jealous that he will withhold deserved praise. It should be remembered that exaggeration in exchanging marriage-related information and describing women’s qualities and defects is a natural tendency among ordinary people. Those who provide pure, truthful, and balanced information are very few. Rather, the tendency to deceive and entice is more common. A person who feels fear and embarrassment about gathering information out of curiosity concerning a non-mahram woman other than his wife should exercise caution in this matter.”
Seclusion Between the Prospective Groom and Bride Is Prohibited: It is haram for a man to be alone in seclusion with a woman to whom he has proposed. Until marriage takes place between them, they remain prohibited to each other. Apart from looking at one another, the Shariah has permitted the prospective groom and bride nothing else. Thus, she remains prohibited before marriage just as she was before the proposal. Moreover, since there is no guarantee that the two will not engage in something prohibited by Allah when alone together, private meetings are prohibited. However, a private meeting is permissible if a mahram is present when the prospective groom and bride meet, because an unlawful act cannot normally take place in the presence of a mahram. Jabir reported that the Messenger of Allah (peace and blessings be upon him) said: “Whoever believes in Allah and the Last Day should never be alone with a woman unless she has a mahram relative with her. If he meets with her in seclusion, Satan is the third of them.” —Ahmad.
‘Amir ibn Rabi‘ah reported that the Messenger of Allah (peace and blessings be upon him) said: “A man must never be alone in seclusion with a non-mahram woman. The matter is different if a mahram is present.” —Ahmad.
The Risks and Possible Harm of Being Lenient About Private Meetings: Many people adopt a lenient approach to this matter. Consequently, they allow their daughters or female relatives to associate with their fiancés and even to meet privately without the supervision of elders. They agree to let the fiancé take her wherever he wishes, without any monitoring. As a result of such unsupervised private meetings and association, girls may sometimes lose their honor, dignity, and even chastity. Afterward, the possibility remains that she may not marry that prospective groom. The failure of a marriageable girl to marry then becomes an additional problem. On the other hand, there is an excessively strict group that does not even allow a prospective groom to see the bride after proposing, and refuses to let him see her until they have first obtained from him a commitment to marry. They want the groom and bride not to see each other at all until the wedding night. Yet the first sight on the wedding night can sometimes lead to sudden and unexpected events. The newly married couple may then even face an undesirable outcome: incompatibility and separation.
Some people consider seeing a photograph sufficient. In reality, however, it does not produce a reassuring or satisfactory result. A photograph does not accurately and perfectly reflect a person’s real appearance. The best course is the one demonstrated by Islam. It ensures, on the one hand, that both the prospective husband and wife have the right to see each other, while on the other hand preserving their honor and dignity by avoiding private meetings.
10. Withdrawing from an Engagement and Its Consequences
An engagement is a prelude to concluding the marriage contract. In many cases, immediately after the engagement, the dower is paid in full or in part in advance, and gifts and presents are given to confirm and strengthen the new relationship. At times, however, the fiancé, the fiancée, or both withdraw from the engagement and decline to complete the marriage.
In that case, the question arises whether this is proper according to the Shariah and whether whatever was given to the fiancée must be returned. In reality, an engagement is merely a promise of marriage. It is not a binding contract. Both parties have the legitimate right to refrain from concluding the contract. The Shariah has prescribed no financial or physical punishment that the person who breaks a promise must undergo. Nevertheless, it is morally reprehensible and has been counted among the characteristics of a hypocrite. It is permitted only when failing to fulfill the promise becomes an unavoidable necessity. It is reported in Sahih al-Bukhari that the Messenger of Allah (peace and blessings be upon him) said: “There are three signs of a hypocrite: when he speaks, he lies; when he makes a promise, he breaks it; and when he is entrusted with something, he betrays the trust.”
When the death of Abdullah ibn Umar was approaching, he mentioned a Qurashi man by name and said: “Find him, because I said something to him concerning my daughter that was close to a promise. I do not want to go before Allah carrying one-third of hypocrisy. With you as witnesses, I give him my daughter in marriage.” (Tadhkirat al-Huffaz)
The fiancé also has the right to reclaim what he gave as the dower. It was given in exchange for marriage. Since the marriage did not take place, the dower is not the fiancée’s due. Therefore, it must be returned to its owner, because it is entirely his property.
Gifts, on the other hand, fall under the category of donations. If a donation is made entirely selflessly, without intending to receive anything in return, it is not proper to reclaim it. As soon as the recipient is informed of the donation, it becomes his property, and he has the right to use it in any manner. Thus, if the donor reclaims it, that amounts to seizing, without the person’s consent, property belonging to him—something invalid and impermissible according to both the Shariah and reason.
Conversely, if someone gives a gift intending to receive something in return, but the recipient does not provide that return, then reclaiming the gift is permissible. The donor’s right to reclaim it is sanctioned by the Shariah, because the gift was in the nature of an exchange. Therefore, when the marriage has not taken place, he may reclaim a gift given for the purpose of marriage. The principle followed in this matter is reflected in the following hadiths:
1. Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah reported from Ibn Abbas that the Messenger of Allah (peace and blessings be upon him) said: “It is not lawful for a person to reclaim anything after giving it as a donation or gift to someone. Only a parent may give something to his child and then take it back.”
2. Ibn Abbas also reported that the Messenger of Allah (peace and blessings be upon him) said: “Whoever gives a donation and then reclaims it is like one who vomits and then eats his vomit.”
3. Salim reported from his father that the Messenger of Allah (peace and blessings be upon him) said: “Whoever gives something to another person has the strongest right to reclaim that gift until he receives something in return for it.”
The method of reconciling these hadiths is described on page 50 of volume 2 of I‘lam al-Muwaqqi‘in: “A donor who gives a gift entirely selflessly and without hoping to receive anything in return may not reclaim it. But a donor who gives a gift hoping to receive something in return, and the recipient gives nothing in return, may reclaim that gift. It must be remembered here that all the Sunnahs of the Messenger of Allah (peace and blessings be upon him) must be followed. It is not permissible to accept one while leaving another aside.”
The Opinion of the Jurists: The practice that has been implemented through the courts is that whatever the fiancé has given his fiancée may be reclaimed, provided it has not been transformed into another form. This is the view of the Hanafi madhhab.
Thus, if bangles, rings, necklaces, watches, or similar items remain in their original condition, they must be returned to the fiancé. But if they no longer remain in their original condition—because they were lost or sold, because additional material was added and they were transformed, because they were food and were eaten, or because they were cloth that was later sewn into clothing—the fiancée may not demand the return of those items or anything else in their place.
The Islamic Lower Court of Tanta issued the following ruling on July 13, 1933:
1. Whatever the fiancé gives his fiancée is considered a gift if it is not something suitable for concluding the marriage contract.
2. A gift is also equivalent to a donation, both linguistically and in its legal ruling.
3. A donation is a contract that conveys ownership. The contract is completed when the relevant item is taken into possession. The recipient may transfer the item received by sale or any other means, and such transfer is legally effective.
4. If the item given is destroyed or ruined, it cannot be reclaimed.
5. The donor may demand its return only if the item remains intact, and not otherwise.
According to the Maliki madhhab, the relevant consideration here is which party withdrew from the engagement: the groom or the bride. If the withdrawal was by the groom, he may not demand the return of the gifts he gave. If it was by the bride, he is fully entitled to reclaim the gifts, whether they remain intact or have been destroyed. If they have been destroyed, he will receive their equivalent. However, if a different condition or definition was stipulated, it will be acted upon accordingly. According to the Shafi‘i madhhab, gifts must be returned in every case, whether they remain intact or have been destroyed. If intact, they must be returned as they are; otherwise, their value must be paid.
11. The Marriage Contract
The essential element of marriage is the consent of both parties, their concord and agreement regarding the establishment of the marital relationship, and their mutual assent. Since this consent, concord of intention, and agreement are psychological matters that cannot be known to others, it is necessary for a statement to be uttered as a sign or expression of the firm intention and decisive resolve to form and establish the relationship.
Various forms of verbal expression reflecting this consent, agreement, and intention are customary between the two parties to a marriage. The first statement uttered by either party expressing the intention to establish the marital relationship is called ijab (offer). Ijab means making obligatory or binding. When the other party expresses consent to the intention stated first, establishing the marital relationship becomes obligatory or binding upon that party; hence it is called ijab. The statement uttered by the other party in response, expressing consent and the decision to accept the first party’s offer, is called qabul (acceptance). Therefore, the jurists say that the rukn, or essential pillar, of marriage is ijab and qabul (offer and acceptance).
Conditions for the Validity of Ijab and Qabul: If the following conditions are not fulfilled, the marriage is not concluded, and no marital relationship is established on its basis.
1. Both the groom and the bride must possess the ability to distinguish good from bad and right from wrong. Thus, if either one is insane or so young that he or she cannot understand good and bad, the marriage will not be concluded.
2. Ijab and qabul must take place in the same sitting. In other words, no intervening statement may be introduced between ijab and qabul, nor may anything occur that is conventionally regarded as rejecting or refusing the marriage proposal or turning to another subject while abandoning this matter. Immediate and direct acceptance after ijab is not, however, a condition. If the sitting is prolonged and the declaration of qabul is delayed after ijab, but no statement is uttered between them indicating rejection or refusal, it will be regarded as the same sitting. This is the view of the Hanafi and Hanbali madhhabs. Al-Mughni states that if qabul is delayed after ijab, the marriage is valid so long as both parties remain in the sitting and do not change the subject, because remaining in the sitting is, according to the Shariah, equivalent to remaining in the state of concluding the marriage contract. But if the parties separate before qabul, the ijab becomes void, because this does not signify acceptance. Their separation expresses rejection by the other party, so the proposal will not be accepted. Likewise, if the parties interrupt the discussion of marriage and turn to another subject or engage in another activity, this also signifies rejection, because in that case the other party has abandoned the marriage contract without accepting the proposal.
It is reported from Ahmad that several people went to a man and said: “Marry so-and-so to us.” He said: “I marry her to him for a dower of one hundred dinars.” Immediately afterward, those people went to the groom and informed him that he had been married to her for a dower of one hundred dinars. He immediately said: “I accept.” Imam Ahmad was asked whether this would count as a marriage, and he said: “Yes.” According to the Shafi‘i madhhab, immediate acceptance is a condition. If the groom creates an interval between ijab and qabul by giving a speech—for example, if the bride’s guardian says to the groom, “I marry my such-and-such daughter or relative to you,” and the groom says, “I begin in the name of Allah; all praise belongs to Allah, and blessings and peace be upon the Messenger of Allah. I accept the marriage proposal of that girl”—there are two opinions. Shaykh Abu Hamid al-Isfarayini held that the marriage is valid, because a sermon or speech is prescribed for the marriage contract and therefore cannot prevent its validity, just as the interval of tayammum between two prayers does not prevent the validity of the prayer. The second opinion is that the marriage is invalid, because the speech interrupts the interval between ijab and qabul; it is therefore invalid just as an interval created by something other than the sermon would be invalid. It cannot be compared to tayammum, because tayammum is prescribed between the two prayers, whereas the sermon is prescribed before the contract. Imam Malik permitted a short interval between ijab and qabul. The basis of this disagreement is the question of whether ijab and qabul must take place at the same time from both parties.
3. There must be no contradiction between ijab and qabul. If qabul differs from ijab in a way that is more favorable to the offeror, it is regarded as stronger consent. For example, if the offeror says, “I marry my such-and-such daughter to you for a dower of one hundred pounds,” and the other party replies, “I accept for a dower of two hundred pounds,” the marriage is valid and concluded, because the acceptance was expressed in a more favorable form.
4. The parties representing the groom and bride must hear enough of each other’s words to understand, in general, that the purpose of the discussion is to conclude the marriage contract and establish the marital relationship. It is not necessary for either party to hear and understand every word spoken by the other, because the purpose and intention are what truly matter and are taken into consideration.
The Words of Ijab and Qabul: Marriage is concluded by using words in a language understood by both the groom’s and bride’s parties that express the meaning of marriage, and by making a statement that clearly and unambiguously reflects both parties’ intention to establish the marital relationship.
Shaykh al-Islam Ibn Taymiyyah said on page 119 of al-Ikhtibarat al-‘Ilmiyyah: “Marriage is concluded by whatever ordinary people understand as marriage, regardless of whether it is expressed in any language, with any words, or by any action. This applies not only to marriage but also to all other contracts.” The jurists have supported this view regarding qabul. They have not stipulated that acceptance must be expressed with any particular word. Any word indicating consent and approval is effective as qabul, such as “I accept,” “I consent,” “I agree,” “I approve,” or “I make it effective.” Regarding ijab, however, the scholars unanimously stated that marriage is valid through the words “I marry” or “I give in nikah,” or any similar statement derived from the words marriage and nikah. These two words directly express the intended matter. The scholars have differed over whether marriage is valid when other words are used instead. For example, if someone says, “I give such-and-such girl to you as a gift,” “I donate her to you,” “I make you her owner,” or “I sell her to you,” the marriage is valid according to the Hanafis. It is also valid according to al-Thawri, Abu Thawr, Abu Ubayd, and Abu Dawud, because this is a contract in which intention is the primary consideration. The use of any particular word is not a condition here. Any word that conveys the meaning intended by the Shariah may be used. In other words, marriage is valid with any word whose meaning is identical to the meaning intended by the Shariah. This is because, when marrying a woman to a man, the Messenger of Allah (peace and blessings be upon him) said: “I give her into your possession in exchange for what you have learned of the Qur’an.” —Al-Bukhari.
Moreover, since the marriage of the Messenger of Allah (peace and blessings be upon him) was concluded using the word hibah, meaning “gift,” the marriage of his community will likewise be concluded by it. Allah says:
يَا أَيُّهَا النَّبِيُّ إِنَّا أَمْلَلْنَا لَكَ أَزْوَاجَلَ اللَّاتِي أَتَيْتَ أُجُورَهُنَّ إِلى قوله وَامْرَأَةَ مُؤْمِنَةٌ إِن وَهَبَت نَفْسَهَا لِلنَّبِيِّ
Meaning: “O Prophet, We have made lawful for you the wives to whom you have given their dower, and also the believing woman who offers herself to the Prophet.” (Surah al-Ahzab)
Moreover, since marriage can validly be concluded through metaphorical words, it can also be concluded through indirect words, just as divorce may be given through indirect words. (The Hanafi principle is that marriage may be concluded with any word that conveys the meaning of immediately transferring an object into someone’s permanent ownership. On this basis, marriage is not valid through the words “make lawful” or “make permissible,” because these do not convey permanent transfer of ownership. Nor is it valid through the words “lend” or “rent,” because these convey making someone the owner not of the object itself but of its benefits or services. Nor is it valid through the word “bequeath,” because this conveys making someone the owner after death, not immediately. According to al-Shafi‘i, Ahmad, Sa‘id ibn al-Musayyab, and ‘Ata’, marriage is concluded only through a statement formed with the words marriage or nikah, because other words such as “give” or “make an owner” are not used to mean marriage. Moreover, since witnesses are, in their view, a condition for the validity of marriage, if marriage were concluded using the word “give,” the witnessing would not be attached to the marriage.)
Marriage in a Language Other Than Arabic: The jurists unanimously agree that it is permissible to solemnize a marriage in any language other than Arabic if both the bride and groom, or either one of them, is unable to understand Arabic. When both understand Arabic and are capable of solemnizing the marriage in Arabic, however, the jurists differ over whether it is valid in another language. Ibn Qudamah states in Al-Mughni: It is not valid for a person who is able to pronounce the word nikah in Arabic to solemnize his marriage in another language. This is one of the two opinions attributed to Imam al-Shafi‘i. According to Imam Abu Hanifah, marriage is valid in any language other than Arabic, because he has used his own words, and the marriage is thereby valid just as it is valid through Arabic words.
The truth, in our view, is that this is an unjustified rigidity. Yet Allah’s religion is an easy and accommodating law. We have already stated that the essential basis of marriage is the consent of both parties. Ijab and qabul are the evidence and indication of that consent. Therefore, when ijab and qabul are declared, that is sufficient, regardless of the language used.
Imam Ibn Taymiyyah said: Although marriage is a relationship of kinship, it is nevertheless like ownership and charitable giving. Therefore, no particular words in Arabic or any other language can be prescribed for it. Even if a non-Arab were to learn Arabic immediately, he might still not understand the intent and significance of Arabic words as he understands the language in which he is accustomed to speaking.
Indeed, if it were said that concluding a contract in a non-Arabic language without necessity is disliked or improper, just as all other forms of transactions and exchanges are improper in a non-Arabic language without necessity, the statement would merit consideration.
Marriage of a Mute Person: The marriage of a mute person is valid through gestures, provided that the bride understands them, just as his buying and selling are valid. Gestures are an intelligible means and method of expressing one’s intention. However, it is not valid if the other party does not understand the gestures, because this is a mutual contract between two people. Thus, it is essential that one person’s communication be understandable to the other.
Marriage in the Absence of One Party: When one party to a marriage is absent but wishes to marry, he must send a letter or messenger conveying his desire to marry the other party. If the other party is inclined to accept the proposal, it is his duty to bring several witnesses, read the contents of the letter to them or convey the messenger’s message, appoint them as witnesses at the gathering, and declare before them that he consents to the marriage. In this case, the consent declared at the gathering will be valid.
Appropriate Words for the Contract: The jurists have stipulated that the words used for ijab and qabul must consist of two expressions, both in the past tense, or one in the past tense and the other in the future tense. An example of the first is that the proposer says, “I have married my daughter to you,” and the accepting party says, “I accept.” An example of the second is that the proposer says, “I will marry my daughter to you,” and the accepting party says, “I accept,” or “I have accepted.”
The reason the jurists imposed this condition is that the true foundation of marriage is the existence of the consent of both parties and the complete harmony and unity of their wishes. Ijab and qabul are the means by which this consent is expressed, manifested, and reflected. These two expressions must clearly reflect and conclusively demonstrate the actual and real existence of both parties’ consent at the time the marriage is concluded, that is, at the time of ijab and qabul. For concluding all contracts, the Shariah uses expressions in the past tense, because they prove the consent of both parties decisively and unambiguously and carry no other meaning. Expressions in the present and future tenses do not clearly and conclusively prove that effective consent exists at the time of speaking.
For example, if the proposer says, “I will marry my daughter to you,” or “I am marrying her to you,” and the other party says, “I will accept,” or “I am accepting,” the marriage will not be concluded by such statements. These words may merely signify a promise. In reality, a promise to marry in the future is not a marriage at present. But if the proposer says, “Marry your daughter to me,” and the other party replies, “I have married my daughter to you,” the marriage will be concluded. This is because the expression “Marry her to me” implies the appointment of an agent. If one person acts as the agent of both parties and concludes the marriage, it is valid. Thus, when the proposer says, “Marry her to me,” and the other party says, “I accept,” it means that the first person appointed the second as his agent, and the second concluded the marriage as the agent of both parties.
The Marriage Contract Must Be Unconditional: The jurists have stipulated that a marriage must be free of all conditions. An example is that a person says to the prospective groom,
“I have married my daughter to you,” and the prospective groom says, “I accept.” This marriage is concluded completely unconditionally. When all the necessary conditions are fulfilled in this manner, the marriage is valid, and the marital relationship is established on its basis.
Sometimes the words used in a marriage proposal depend on a condition. They may also be linked to some future time or limited to a specified period. Marriage is not concluded through such expressions. The explanation of such marriages is as follows:
1. Marriage Proposed with Conditional Words: This means making the marriage dependent, through a conditional expression, on the occurrence of something else. For example, the proposer says, “If I join such-and-such a job, I will marry your daughter.” In response, the girl’s father says, “I consent,” or “I accept.” The marriage is not concluded by such words, because its conclusion has been made dependent on something that may or may not occur in the future. Yet marriage is a contract that immediately grants the right to sexual relations with the woman concerned; this right is not delayed. The condition of joining the job, however, did not exist at the time of speaking. A thing that does not exist cannot give existence to something dependent upon it. Thus, the reality is that the marriage was not concluded. Conversely, if the marriage is made dependent on something that currently exists, it will be concluded. For example, the groom says, “If your daughter is twenty years old, I will marry her,” and her father says, “I consent,” while in fact the girl is twenty years old. Likewise, if the bride says to the groom, “I will marry you if my father consents,” and the groom says, “I accept,” while the bride’s father says at the same gathering, “I consent.” In this case the condition is merely nominal, because the thing upon which the marriage was made dependent has been fulfilled immediately.
2. A Marriage Proposal Set for and Dependent on a Specific Future Time: An example is that the groom says, “I have married your daughter for tomorrow or for one month from now,” and the girl’s father says, “I consent.” The marriage is not concluded by this proposal, either at present or at the stated later time. Linking marriage to the future contradicts the marriage contract, which does not establish and guarantee the right to immediate sexual relations.
3. A Proposal Limiting the Marriage Contract to a Specific Period: This includes marrying for one month, or for a shorter or longer period. Such a marriage is invalid, because the purpose of marriage is to have a permanent life partner for procreation, preservation of lineage, and raising children. For this reason, the jurists have ruled temporary marriage and halala marriage null and invalid. The purpose of temporary marriage is merely temporary sexual enjoyment, while the purpose of halala marriage is to make a woman lawful for her first husband.
Detailed discussions of these two temporary and invalid marriages follow:
12. Temporary Marriage: Another name for it is temporary or time-limited marriage. It means a man marrying a woman for one day, one week, or one month. It is called mut‘ah marriage, meaning a marriage for enjoyment, because through this marriage the man enjoys the woman only for a specified period. All schools of law and all Imams unanimously agree that this marriage is forbidden. They have said that it becomes invalid at the very moment it is concluded. (According to Imam Zufar, the marriage remains valid, while only its specified duration is invalidated—provided the contract was concluded with the addition of the word “marriage.” If the contract was concluded using the word mut‘ah, then even according to Zufar the marriage is immediately invalid.) The proofs on this subject are as follows:
1. The rulings in the Qur’an concerning marriage, divorce, the waiting period, and inheritance have no relation to this marriage. Therefore, like other invalid marriages, this marriage cannot be anything but invalid.
2. Various hadiths describe this marriage unequivocally as forbidden and invalid. Sabrah al-Juhani, may Allah be pleased with him, said: He took part with the Messenger of Allah, peace and blessings be upon him, in the campaign for the conquest of Makkah. He permitted them to contract mut‘ah marriages, but before leaving Makkah after the conquest, he declared them forbidden. A hadith narrated by Ibn Majah states that the Messenger of Allah, peace and blessings be upon him, declared mut‘ah marriage forbidden and said: “O people, I had permitted you to contract mut‘ah marriages, but now Allah has forbidden this type of marriage until the Day of Resurrection.” It is also narrated from Ali, may Allah be pleased with him, that during the Battle of Khaybar, the Messenger of Allah, peace and blessings be upon him, declared mut‘ah marriage and the eating of domestic donkey meat forbidden. (Imam al-Shafi‘i, may Allah have mercy on him, said: “I know of nothing besides mut‘ah marriage that Allah made lawful twice and unlawful twice.”)
3. During his caliphate, Umar, may Allah be pleased with him, declared mut‘ah marriage forbidden from the pulpit, and the Companions endorsed his declaration. If he had been mistaken, the Companions would not have supported his error.
4. Al-Khattabi said: The entire Muslim community, except for some Shiites, unanimously considers mut‘ah marriage forbidden. It is also narrated from Ali, may Allah be pleased with him, that mut‘ah marriage had been abrogated and invalidated. Al-Bayhaqi narrated from Ja‘far Muhammad that when he was asked about mut‘ah, he said: “It is nothing but fornication.”
5. Since the purpose of mut‘ah is merely sexual enjoyment and the satisfaction of lust, and since its purpose is not procreation and raising children—the true purposes of marriage—it is entirely comparable to fornication. Nothing but sexual enjoyment is sought through it. Moreover, mut‘ah marriage is harmful to women, because it turns a woman into nothing more than an object of pleasure, continually transferred from one man to another. Mut‘ah marriage also harms children, because they have no permanent home in which to live. Consequently, their education and upbringing become unstable.
Nevertheless, it is reported that some Companions and Successors considered mut‘ah marriage lawful. The name most often mentioned in this connection is that of Ibn Abbas, may Allah be pleased with him. The book Tahdhib al-Sunan states that Ibn Abbas considered it permissible in cases of urgent necessity, not unconditionally or in all circumstances. Later, when he learned that people were practicing it widely, he withdrew this opinion and ruled it forbidden for anyone who had no necessity.
Al-Khattabi said that Sa‘id ibn Jubayr related: I said to Ibn Abbas, “Do you know what kind of fatwa you have issued? Caravans are traveling on the basis of your fatwa, and poets are composing poetry.” He asked, “What are they saying?” I replied, “They are saying: When the shaykh became stranded on a long journey, I said to him, ‘Would you like to make use of Ibn Abbas’s fatwa? Would you like to obtain a virgin through this permission? She will be your shelter until the people return.’”
Ibn Abbas said: “Indeed, we belong to Allah, and indeed to Him we shall return! By Allah, I did not issue the fatwa in this way, nor was this my intention. I permitted it only in the circumstances in which Allah made carrion, blood, and pork lawful. Those forbidden things are lawful only for a person compelled by necessity. Mut‘ah marriage is like carrion, blood, and pork.”
The Imami Shi‘a favor its validity. According to them, it has four essential elements: 1. The proposal must be made using one of these three expressions: “I have married you,” “I have given you in marriage,” or “I have contracted mut‘ah marriage with you.” Mut‘ah marriage is concluded through a proposal containing such words. 2. The proposed wife must be Muslim, Jewish, or Christian. It is recommended to take a believing, righteous woman as a wife, while marrying a fornicatress is disliked. 3. The bridal gift must be specified. Its amount is to be determined by mutual agreement, even if it is merely a handful of wheat. 4. Duration: This is a condition of mut‘ah marriage. The duration is to be fixed by mutual agreement between the groom and bride. It may be determined in days, months, or years, but it must be specified whatever the duration may be.
Some of the rules governing this marriage according to them are as follows: 1. If the bridal gift is not specified along with the consideration, the marriage becomes invalid. If the bridal gift is specified without specifying the duration, the marriage becomes permanent. 2. The children of the wife are the responsibility of the husband. 3. There is no divorce in mut‘ah marriage, nor is there li‘an. (There is no opportunity to accuse the wife of fornication.)
4. In mut‘ah marriage, the husband and wife do not inherit from each other. 5. However, the husband and wife inherit from their child, and the child inherits from them. 6. In the case of a menstruating woman, the waiting period ends after two menstrual cycles. If she is of menstruating age but does not menstruate, her waiting period is forty-five days.
Imam al-Shawkani said: It is our duty in all circumstances to accept without hesitation or reservation the laws conveyed to us from Allah and His Messenger. In our view, the perpetual prohibition of mut‘ah marriage is conclusively established. The opposition of some Companions does not undermine its prohibition. There is no excuse or objection that allows anyone to refuse to accept and implement its prohibition, because the overwhelming majority of the Companions accepted it as forbidden, acted accordingly, and transmitted this ruling to us. Indeed, according to a narration by Ibn Majah, Ibn Umar, may Allah be pleased with him, said: “The Messenger of Allah, peace and blessings be upon him, permitted us to contract mut‘ah marriages three times, then prohibited them. By Allah, whenever I learned that a married person had contracted a mut‘ah marriage, I had him stoned to death.” Abu Hurayrah, may Allah be pleased with him, narrated from the Messenger of Allah, peace and blessings be upon him, that the absence of these three matters—divorce, the waiting period, and inheritance—invalidates mut‘ah marriage. —Al-Daraqutni.
13. Marriage Contracted While Concealing the Intention to Divorce
The jurists unanimously agree that if a person marries without specifying the duration of the marriage, but intends to divorce her after a certain period, or intends to divorce her and leave after his need in the city where he is staying has ended, the marriage is valid.
According to Imam al-Awzai, this is a form of mut‘ah marriage and is invalid.
Regarding this matter, Shaykh Rashid Rida comments in Tafsir al-Manar: “Scholars, both ancient and modern, have taken such a firm position against mut‘ah marriage that they even deem marriage undertaken with the intention of divorce invalid, although the jurists say that if a husband internally determines a specific duration and marries without mentioning it in the proposal, the marriage is valid. However, concealing this duration by the husband is considered deception and fraud. Such a marriage is more objectionable and more liable to be invalidated than mut‘ah marriage, even if it takes place with the consent and agreement of the husband, wife, and the wife’s guardians. In mut‘ah marriage, however, the honorable, permanent marital bond of human society is turned into a game. It is transformed into a consumable commodity that can be continually transferred among those devoted to pleasure, and many other objectionable acts arise from it. Nevertheless, the harm caused by resorting to deception by concealing the duration internally does not occur in mut‘ah marriage. A marriage in which no specified duration is openly stipulated, yet is implicitly intended, is deceptive and fraudulent, and gives rise to hostility, lack of trust, and various other undesirable consequences. Even those upright people who sincerely hope that marriage will yield its intended benefits—namely, the chastity of husband and wife, their exclusive devotion to each other, and their cooperation in establishing a righteous Muslim family—cannot have confidence in such a marriage.”
14. Halala Marriage: When a woman who has been divorced three times by her husband is married after completing her waiting period and then divorced after intercourse, so that she becomes lawful for the former husband who divorced her, this type of marriage is called halala marriage.
Halala Marriage Is Forbidden and a Major Sin: This type of marriage is forbidden, a major sin, and a terrifyingly obscene and shameless act; Allah has cursed the person who performs it. Abu Hurayrah, may Allah be pleased with him, narrated that the Messenger of Allah, peace and blessings be upon him, said: “Allah has cursed both the one who performs halala marriage and the one for whom halala marriage is performed.” —Ahmad, with an authentic chain.
Abdullah ibn Masud, may Allah be pleased with him, narrated: The Messenger of Allah, peace and blessings be upon him, cursed both the person who marries for the purpose of making someone lawful and the person for whom it is done. —Al-Tirmidhi.
Among the Companions, Umar ibn al-Khattab, Uthman ibn Affan, Abdullah ibn Umar, and others, as well as the jurists and Successors, acted according to this hadith.
Uqbah ibn Amir, may Allah be pleased with him, narrated that the Messenger of Allah, peace and blessings be upon him, said: “Shall I tell you who the borrowed stud is?” The people said, “O Messenger of Allah, tell us.” He said: “The person who marries a woman for the purpose of making her lawful for someone else. Allah has cursed both the person who marries for this purpose and the one for whom it is done.” —Ibn Majah, al-Hakim.
Ibn Abbas, may Allah be pleased with him, narrated that when the Messenger of Allah, peace and blessings be upon him, was asked about a person who marries for the purpose of making a woman lawful, he said: “No. Only a marriage undertaken eagerly for oneself is valid. Deception is not permitted, nor is it permitted to make a game of the Book of Allah for one’s own purposes. As long as the wife enjoys her husband, the marital bond remains in force.” —Abu Ishaq. Umar, may Allah be pleased with him, said: “If the person who marries for the purpose of making a woman lawful and the one for whom he does so are brought to me, I will stone both of them to death.” When his son was asked to explain this, he said: “They are both fornicators.” —Ibn al-Mundhir, Ibn Abi Shaybah, Abd al-Razzaq. A man asked Ibn Umar, may Allah be pleased with him: “I married a woman so that she might become lawful for her former husband. That husband neither ordered me to do this nor even knows about it. What is your opinion?” Ibn Umar replied: “No, this is not permissible. You must marry her eagerly for yourself. Then, if you like her, keep her; otherwise, leave her. During the time of the Messenger of Allah, peace and blessings be upon him, we regarded such a marriage as fornication. Even if they remained together for twenty years, and it became known that he intended to make her lawful for him, they would still remain fornicators.”
The Shariah Ruling on Halala Marriage: The clear hadiths cited above unequivocally declare this type of marriage null and invalid. Like the consequences of other invalid contracts, the consequences of this marriage will also be disregarded. Through it, the woman will not become lawful for her former husband, because the Shariah curses only unlawful acts. Even if the intention of making her lawful is not stated at the time of marriage, the marriage remains invalid as long as that intention is maintained, and it will not make the wife lawful for her former husband. The intention and purpose are what truly matter, whether they are stated or not.
Ibn al-Qayyim’s Opinion: According to the jurists, the scholars of hadith, and the people of Madinah, there is no difference between privately intending to make a woman lawful and stating that intention openly. The purpose is what is considered and accepted in all contracts, and all actions depend upon intention. A condition on which both contracting parties agree, even if they do not state it, is treated as though it had been stated. Words by which an intention is expressed have no independent substance; words originate and are uttered only to express the intention concealed in the heart. Thus, once the intention is known, the words have no significance. When the purpose has been implemented, its ruling necessarily applies, whether it is expressed in words or not. How can it be said that through this marriage the wife will become lawful for her first husband when there is no intention to live a married life with her? The actual purpose of marriage—procreation and raising children—is also absent. This outward marriage is deception and falsehood. Allah did not permit this marriage for anyone in His religion, nor did He include it within the Shariah. The harmful aspects inherent in this marriage are known to everyone.
Imam Ibn Taymiyyah’s Opinion: Allah’s religion is so pure and honorable that it cannot declare a woman unlawful and then borrow a billy goat to make her lawful. The man who borrows that goat would not even wish to marry it and make it part of his family, nor would he intend to make it the woman’s permanent life partner. Rather, he would merely enjoy the woman, and through that she would become lawful for another man. Allah’s religion is not so base and low that it would tolerate and legalize such an arrangement. This is nothing but manifest fornication. The Companions of the Messenger of Allah, peace and blessings be upon him, declared it forbidden. How can a forbidden act make someone lawful? How can a filthy act purify anything? Anyone whose heart Allah has opened to Islam and illuminated with faith should have no difficulty understanding that this is one of the most abhorrent sins, which the conscience of an intelligent and refined person cannot even conceive, let alone imagine that it could be permitted by the pure Shariah brought by the prophets, especially the greatest of all laws.
Indeed, this is the correct truth. Imams Malik, Ahmad, al-Thawri, al-Hasan, al-Nakhai, Qatadah, al-Layth, Ibn al-Mubarak, and other jurists held this opinion. Others maintain that if the marriage contract does not mention the condition of divorcing after a specified period, the marriage is valid, because judgments are based on outward circumstances, not on the purpose or what is concealed in the heart. According to them, intention is not legally relevant on any grounds.
Imam al-Shafi‘i’s Opinion: If the man who makes a woman lawful marries specifically with that purpose and then divorces her, his marriage is invalid. But if he does not impose such a condition in the marriage contract, his contract is valid.
Imam Abu Hanifah’s Opinion: If, at the time the contract is concluded, the condition is imposed that he will make her lawful for her former husband, she will become lawful for the former husband, but the marriage will be disliked. This is because a marriage contract does not become null or ineffective merely because of an invalid condition. Therefore, after the second husband divorces the wife, or after his death and the completion of her waiting period, the woman will become lawful for her first husband. Imam Abu Yusuf, however, holds that such a contract is ineffective, because it is a temporary and time-limited marriage. Imam Muhammad holds that the second marriage is valid, but it will not make the wife lawful for the first husband.
Through what marriage does a divorced wife become lawful for her first husband: When a husband divorces his wife three times, it becomes lawful for him to take her back only when, after completing her waiting period, she lawfully marries another husband—not with the intention of making herself lawful for her former husband. When the second husband marries her naturally and willingly, lives with her as husband and wife in the proper manner, and has intercourse with her, and thereafter they separate through divorce or death, then, after she completes her waiting period, it becomes lawful for her to marry her first husband again.
Imam al-Shafi‘i, Ahmad, al-Bukhari, and Muslim narrate from ‘A’ishah (may Allah be pleased with her) that the wife of Rifa‘ah al-Qurazi came to the Messenger of Allah (peace and blessings be upon him) and said: “I was with Rifa‘ah. He divorced me, and then divorced me three times. After that, ‘Abd al-Rahman ibn al-Zubayr married me, but he has nothing except something like the fringe of a garment” (meaning that his penis was impotent). Hearing this, the Messenger of Allah (peace and blessings be upon him) smiled slightly and said: “Do you wish to return to Rifa‘ah?” She said: “Yes.” He said: “No, you cannot until you have intercourse with your new husband.” [Note: 1. From this, the scholars have concluded that the wife’s intention to make herself lawful is not worth even a coin. No matter how strongly she or her guardian intends to make her lawful, the second husband’s]
For this purpose, the meeting of the sexual organs of the two is sufficient, because through it the punishment for fornication and ritual bathing become obligatory. It was in this connection that the following verse of Surah al-Baqarah was revealed:
فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدُ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ فَإِنْ طَلْقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَنْ يَتَرَاجَعَا إِنْ ظَنَّا أَنْ يُقِيمَا حُدُودَ اللَّهِ
Meaning: “Thereafter, if the husband divorces her (that is, after two divorces), she will no longer be lawful for him until she marries another husband. If that husband divorces her, there is no blame upon the two of them if they return to one another, provided they think they can uphold Allah’s limits.” Thus, the wife becomes lawful for her first husband only under three conditions: 1. The second marriage must be valid. 2. The second marriage must be entered into willingly. [Note: 2. An invalid marriage does not make a three-times-divorced wife lawful. If the second husband marries her on the condition that he will divorce her after intercourse, that marriage is invalid and unsound.] 3. After the marriage contract, the second husband must have intercourse with her and live with her as husband and wife in the normal manner.
The rationale behind prohibiting halala marriage: The Qur’an exegetes and scholars have said in this regard: When a husband learns that, after divorcing his wife three times, she will no longer be lawful for him until she marries another husband and lives with him as husband and wife, including having intercourse, he will become cautious. For no man’s sense of honor can accept or tolerate that his own wife should live in another husband’s home and then return to him—especially when that other husband is the first husband’s enemy and rival.
The author of Tafsir al-Manar (vol. 2, p. 392) says: “A man divorces his wife and then realizes that he needs her, so he regrets it, revokes the divorce, and takes her back. Then her companionship once again becomes unbearable to him, so he divorces her again. Afterward, it again becomes clear to him that she is preferable to him and that he cannot manage without her. Therefore, he revokes the divorce for a second time and takes her back. He gains sufficient experience regarding this wife, and she becomes tested in his estimation. The first divorce may have been issued without careful consideration, and he may not yet have properly understood or experienced his need for and dependence upon her. But the second divorce will not be of that kind, because it could not occur without regret and remorse over what happened the first time and a full realization that it was wrong and unjust. That is why we have said that through this his trial reaches completion. Thus, when he revokes the second divorce as well, this establishes his preference for retaining that wife rather than abandoning her. Once the trial has been completed and he has understood that he should not abandon her, it cannot be imagined that he would again incline toward leaving her. Nevertheless, if he again inclines in that direction and issues a third divorce, it must be understood that his intelligence and good conduct are deficient. Therefore, he cannot be allowed to toy with his wife—to cast her away whenever he wishes and take her back whenever he wishes—and he no longer has the ability to make her a pawn in a game of chess [Note: If she has no desire, it will accomplish nothing. Likewise, the first husband has no role in it, because he is now a third party and a stranger. If he remarries his former wife under the pretext of a halala marriage, he is an adulterer and accursed.]
to retain her. Rather, it now appears reasonable that a complete separation should take place between him and his wife and that she should be freed from his control. After that, there is no guarantee that the two of them will be able to live together harmoniously and uphold Allah’s limits.
Then, if it happens by coincidence that the wife willingly marries another man, and that husband coincidentally divorces her or dies while she remains his wife, and afterward the first husband again becomes interested in her and wishes to marry her, then, since the first husband already knows that his wife has lived in another husband’s home and has agreed to return to him, there is a much stronger hope that they will now be able to live together harmoniously and uphold Allah’s limits. Therefore, after she observes her waiting period, she becomes lawful for him.
15. Various Conditions Attached to the Marriage Contract
When a condition is attached to a contract or marriage bond, it must be considered whether that condition is consistent with and required by the contract, or contrary to and conflicting with it, or beneficial to the wife, or prohibited by Islamic law. Whichever of these it may be, it has a distinct ruling, which will be mentioned separately below:
1. Conditions that must be fulfilled: Some conditions must necessarily be fulfilled. They are required by the marriage contract itself and constitute its purpose and objective. They do not violate or alter any command of Allah and His Messenger. For example, the two spouses should provide each other with marital companionship and maintain their mutual relationship according to customary practice; the husband should spend on his wife’s maintenance according to his means and provide her with suitable accommodation; and he must not withhold any right due to her. The wife must not allow anyone to enter her husband’s house without his permission, nor spend, use, or dispose of his property in any way without his consent, and so on.
2. Conditions that need not be observed: Some conditions need not be fulfilled, although the contract remains valid despite them. For example, a condition contrary to the requirements of the contract, such as not providing maintenance, abstaining from intercourse, not paying the dower, or practicing birth control; or imposing a condition that the wife must support her husband or give him something, or that the husband will spend only one night a week with her, or will stay with her only during the day. Such conditions become void automatically because they are contrary to the contract. Moreover, imposing such conditions annuls, before the contract is concluded, rights that are acquired only through the contract. Therefore, these conditions are invalid, though the contract itself remains valid, because they concern something additional to the contract. Mentioning that matter is not a condition for the marriage, and its absence does not cause harm; thus the contract is not invalidated. For example, if the contract stipulates as dower something unlawful, the condition is void but the marriage remains valid. Since a marriage contract remains valid even when the dower is unspecified, it remains valid despite the imposition of any invalid condition.
3. Conditions beneficial to the wife: Some conditions may benefit the wife and protect her interests. For example, the husband may promise that he will not take her away from her parental home or her hometown, will not take her on a journey with him, or will not marry another woman while she is present, and so on. Some scholars believe that the marriage remains valid despite such conditions, that the conditions are void, and that the husband is not obliged to honor them. Others believe that fulfilling a condition given to the wife as a promise is obligatory; if he fails to fulfill it, the wife has the right to annul the marriage. The first view is that of Abu Hanifah, al-Shafi‘i, and many scholars. Their evidence is as follows:
1. The Messenger (peace and blessings be upon him) said: “Muslims are bound by the conditions they impose, except a condition that makes lawful things unlawful or unlawful things lawful.” This condition makes lawful matters—namely, marrying, taking an additional wife, and traveling with her—unlawful and prohibited, although all these acts are lawful and valid.
2. The Messenger of Allah (peace and blessings be upon him) also said: “Any condition that is not in the Book of Allah is void, even if there are a hundred such conditions.”
Abu Hanifah and others said: The aforementioned condition is not in the Book of Allah. It is not desired according to Islamic law.
3. They say: These conditions are neither beneficial to the contract nor intended by it. The second view is held by ‘Umar ibn al-Khattab (may Allah be pleased with him), Sa‘d ibn Abi Waqqas, Mu‘awiyah, ‘Amr ibn al-‘As, ‘Umar ibn ‘Abd al-‘Aziz, Jabir ibn Zayd, Tawus, al-Awza‘i, Ishaq, and the Hanbali school. Their evidence is as follows:
1. Allah Most High said:
يأَيُّهَا الَّذِينَ آمَنُوا أَوْفُوا بِالْعُقُودِ.
“O believers, fulfill the contracts.” (Surah al-Ma’idah, verse 1)
2. The Messenger of Allah (peace and blessings be upon him) said: “The conduct of Muslims will be according to the conditions they impose.”
3. Al-Bukhari, Muslim, and others narrate from ‘Uqbah ibn ‘Amir (may Allah be pleased with him): The Messenger of Allah (peace and blessings be upon him) said: “The conditions by which you conclude marriage contracts are the conditions most deserving of fulfillment.” The conditions of any marriage must be treated with the utmost care.
4. It is narrated from Ashram (may Allah be pleased with him) that a man married his wife in exchange for providing her with accommodation—that is, in exchange for giving her accommodation as her dower. Later, he intended to move her from that house. Her relatives therefore brought a complaint before ‘Umar ibn al-Khattab (may Allah be pleased with him). ‘Umar said: The condition given to her—that is, the accommodation—is her due. “Fulfilling the condition ensures that the due is given.”
5. Since this is a condition that benefits the wife, serves her interests, and does not obstruct the purpose of marriage, fulfilling such a condition is obligatory, just as giving an increased dower is obligatory.
Ibn Qudamah regarded this view as preferable and rejected the first view, saying: We do not know of anyone among the contemporaries of the Companions whose statements we have mentioned who contradicted them. Therefore, consensus was established on this matter. As for the Messenger’s statement, “Any condition that is not in the Book of Allah is void, even if there are a hundred such conditions,” its meaning is that any condition not found in Allah’s law is void. But this condition is sanctioned by Islamic law, and we have cited the evidence that it is sanctioned. Since its being sanctioned is disputed, those who say that it is not sanctioned must provide their evidence.
They say: “This condition makes a lawful matter unlawful.” But our response is that this condition does not make a lawful matter unlawful; it merely establishes the wife’s right to annul the marriage if the husband fails to fulfill the condition. They say: “This condition is not compatible with marriage.” Our response is that we do not accept this, because it serves the wife’s interests. Anything that serves the interests of a party to a contract is considered compatible with the contract.
Ibn Rushd said in Bidayat al-Mujtahid, volume 2, page 55: The reason for their disagreement is that a general statement is opposed to or restricted by a statement bearing a specific meaning. The general statement is the hadith narrated by ‘A’ishah: The Messenger of Allah (peace and blessings be upon him) said: “The condition by which you conclude a marriage contract is the one most deserving of fulfillment.” Both hadiths are authentic and were narrated by al-Bukhari and Muslim.
However, the principle well known among specialists in the science of Islamic jurisprudence is that a statement with a specific meaning determines the ruling of a general statement—in other words, fulfilling an approved condition is obligatory. Ibn Taymiyyah said: When the aims of intelligent people are focused on concluding various contracts and those contracts are undertaken with good intentions, none of their elements is futile. This includes the duration of an exchange contract and imposing a condition concerning a particular profession upon either spouse. A condition may convey a meaning that would not necessarily be conveyed without it; indeed, without the condition, it may convey the opposite meaning.
4. Prohibited conditions: Some conditions are prohibited by Islamic law, and fulfilling them is unlawful. One such condition is that, at the time of marriage, the bride stipulates that her co-wife be divorced. Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) prohibited one person from proposing marriage where another person had already proposed, and prohibited one person from expressing interest in buying something for which another person had expressed an interest in purchasing. He also prohibited a woman from asking a man to divorce his wife so that she could take over that wife’s maintenance. She should know that her provision is entrusted to Allah.” —al-Bukhari and Muslim. Another hadith states that he prohibited imposing a condition that a divorce be issued.
‘Abdullah ibn ‘Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “It is not lawful for one woman to be married in exchange for the divorce of another woman.” —Ahmad.
Thus, the prohibited act is established as invalid by this prohibition. In this case, the bride has imposed upon the groom the condition that he terminate his existing marital relationship with his co-wife and destroy the rights of the husband and wife. Therefore, the marriage proposed by the woman who imposed this condition is invalid.
Now, if it is asked: What is the difference between imposing a condition that the existing wife be divorced and imposing a condition that he not marry again in the future? Why is the condition against marrying later considered valid, while the condition requiring the existing wife to be divorced is considered invalid?
In reply, Ibn al-Qayyim said: Imposing a condition that the existing wife be divorced involves ظلم against her by harming her, causing her distress, breaking up her household, and giving her enemies an opportunity to mock her. Such injustice is absent when imposing a condition not to marry another woman. The hadith distinguishes between the two. Therefore, treating them as identical and comparing one to the other is futile and invalid.
5. Another example of a marriage containing an unjust condition is shighar, or marriage in exchange for marriage. In this marriage there is no dower. This type of marriage was customary in the Age of Ignorance. The Messenger of Allah (peace and blessings be upon him) declared it prohibited. He said: “Shighar marriage is not valid in Islam.” —Muslim, Ibn Majah, and al-Tirmidhi, who classified it as hasan and sahih.
Ibn ‘Umar (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) prohibited shighar marriage.
The form of shighar is that one man says to another: “Marry your daughter or sister to me, and in exchange I will marry my daughter or sister to you.” In this marriage, no dower is exchanged between the husbands and wives. —Ibn Majah.
The scholars’ opinions on this matter: Most scholars concluded from the two aforementioned hadiths that shighar marriage is not valid at all and is void. Abu Hanifah, however, said that the marriage is valid, but that the husbands of both women must pay the dower customary for women of her status. This is because both men mentioned, in place of the dower, something that is not fit to serve as a dower. A woman cannot be made the exchange-value for another woman, because she is not property.
Thus, according to this view, the invalidity of shighar marriage results from the absence of a dower. Yet the presence or absence of a dower cannot be a reason for invalidating a marriage. Just as giving wine or pork as a dower makes the dower invalid while the marriage remains valid, this marriage too will be valid. However, the dower customary for a woman of her status must be given. (A dower equal to that given to comparable relatives, such as a mother or paternal aunt, is called the dower customary for a woman of her status.)
The reason shighar marriage is prohibited: Among those scholars who consider this type of marriage prohibited, there is disagreement about the reason for its prohibition. Some say that the reason is making the marriage dependent upon a condition. The arrangement amounts to this: “My daughter will not marry you until your daughter marries me.”
Others say that the reason is making one woman the dower for another woman. Yet neither of the two women benefits from this. Consequently, the dower does not return to her; rather, it returns to her guardian. This is injustice toward both women and amounts to depriving both of them of a dower that would benefit them.
16. Conditions for the Validity of Marriage
Two conditions for the validity of marriage
The conditions upon which the validity of marriage depends such that, when they are present, the marriage is considered concluded in accordance with Islamic law and all the rulings and rights of marriage take effect are called the conditions for the validity of marriage. There are two such conditions. First condition: The woman whom a man wishes to marry must be legally permissible for him to marry. She must not be unlawful or prohibited to that man, whether the reason for the prohibition is temporary or permanent. This subject will be discussed in detail later under the heading “Prohibited Women.”
Second condition: Witnesses to the marriage.
This subject will be discussed in three stages:
1. The ruling concerning witnesses
2. The conditions of witnesses
3. Women’s testimony
The ruling concerning witnesses to marriage
According to most scholars, a marriage cannot be concluded without witnesses. Nor is it valid if the witnesses are not present when the marriage is concluded—even if a witness declares his presence by some other method. If the witnesses are present and the couple who conclude the marriage ask them to keep the marriage secret and not publicize it, the marriage will be valid. [Note: * Imam Malik and his students hold that witnesses are not obligatory for marriage; publicizing the marriage and making it known is sufficient. Their reasoning is that although Allah Most High mentioned having witnesses present at the time of a sale contract, this has been proven not to be obligatory. Yet the Qur’an makes no mention of having witnesses present for marriage. Therefore, it is even more strongly established that witnesses are neither a condition nor an obligation for marriage in this case. The essential objective is to publicize the marriage and make it known, in order to preserve lineage. The presence of witnesses ensures the preservation of the marriage by resolving disputes and disagreements between the couple. However, if witnesses are brought after the marriage is concluded without their presence but before intercourse, the marriage remains in force. If intercourse takes place before the witnesses are brought, the marriage is invalid and separation must take place.] The evidence supporting their view is mentioned below:
1. Ibn ‘Abbas (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Women who marry themselves without appointing witnesses are adulteresses.” —al-Tirmidhi.
2. ‘A’ishah (may Allah be pleased with her) narrated that the Messenger of Allah (peace and blessings be upon him) said: “There is no valid marriage without a guardian and two upright witnesses.” (al-Daraqutni). This hadith establishes decisively that the presence of witnesses is a condition for the validity of marriage.
3. Abu al-Zubayr al-Makki narrated: A case was brought before ‘Umar ibn al-Khattab (may Allah be pleased with him) concerning a marriage that had no witnesses except one man and one woman. ‘Umar said: “This is a secret marriage. I do not approve of it. Had I been present at this event, I would have carried out rajm” (the punishment of stoning to death). —Muwatta’ Malik.
Al-Tirmidhi said that the experienced scholars among the Successors and those after them followed this view and said: “There is no marriage without witnesses.” None of their predecessors disagreed with them on this matter, although some of their successors did express disagreement.
4. The rights of the couple are connected to this matter. These include the right to ensure the legitimacy of the child. Therefore, the condition of having witnesses has been imposed so that the child’s father will not deny him and his lineage will not be lost. According to some scholars, marriage is valid even without witnesses. Among them are the Shi‘i scholar ‘Abd al-Rahman Mahdi, Yazid ibn Harun, Ibn al-Mundhir, and Dawud. Ibn ‘Umar and Ibn al-Zubayr married without witnesses and then publicly announced it.
Ibn al-Mundhir said that no hadith has been established requiring two witnesses for marriage. Yazid ibn Harun said: Allah Most High ordered witnesses for sales, not for marriage. If, after a marriage is concluded, the people concerned conceal it and advise one another to conceal it, the marriage is valid, but it is disliked, because the command to publicize marriage has been violated. This is the view of al-Shafi‘i, Abu Hanifah, and Ibn al-Mundhir. However, ‘Umar, ‘Urwah, al-Sha‘bi, Nafi‘, and others deemed it disliked. Imam Malik, on the other hand, held that the marriage must be dissolved. If a man marries in the presence of two male witnesses and asks them to keep the marriage secret, Imam Malik ruled that the marriage must be ended by divorce and is not valid. If intercourse has taken place, the wife must be given her dower. The witnesses are not to be punished.
What kind of witnesses are required: The witnesses must be adults, of sound mind, and able to hear both the husband and wife and understand that their intention is to enter into a marriage bond. (If the witnesses are blind, they must be certain of the voices and recognize the voices of both the husband and wife beyond doubt.) A marriage is not valid based on the testimony of underage boys or children, the insane, the intoxicated, or the deaf, because their being witnesses is equivalent to their not being witnesses.
The condition that witnesses be upright: There is disagreement over whether the witnesses must be upright. According to the Hanafis, this is not a condition. In their view, a marriage is valid even in the presence of immoral witnesses. Anyone qualified to be a guardian in a marriage is also qualified to be a witness. It should also be remembered that the purpose of having witnesses is to publicize the marriage and prevent it from remaining secret.
By contrast, according to the Shafi‘i school, it is necessary for the witnesses to be upright men. They hold that a marriage conducted in the presence of one man and two women is invalid. However, if the marriage is conducted in the presence of people whose character is unknown, they still consider it valid. This is because, in marriages conducted in villages and cities among people of every class, it is not possible to know accurately whether those present are upright. Thus, taking uprightness into consideration becomes difficult, and outward circumstances are deemed sufficient. A witness’s character being unknown does not establish that he is immoral. If, after the marriage, it becomes known that he is a fasiq or an immoral person, the marriage will nevertheless not be affected. The condition of uprightness was stipulated on the basis of outward reputation, so that the witness would not be openly immoral. When that much is present, the marriage is valid.
Women’s testimony: The Shafi‘is and Hanbalis have stipulated that the witnesses must be men. A marriage conducted in the presence of one man and two women is not valid. Abu ‘Ubayd narrated from al-Zuhri that: “It has been established as a Sunnah from the Messenger of Allah (peace and blessings be upon him) that women’s testimony is not permissible in any of the legal punishments—that is, hudud—in marriage or divorce.” Moreover, since marriage is not a financial contract, nor is its purpose wealth, and men are chiefly present in it, it cannot be validated by merely two witnesses, just as the hudud cannot be validated in this manner.
The Hanafis do not impose this condition. They hold that the testimony of two men, or of one man and two women, is sufficient. Allah the Exalted says:
وَاسْتَشْهِدُوا شَهِيدَيْنِ مِن رِّجَالِكُم ، فَإِن لَّمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَ امْرَأَتِي مِمَّن تَرْضَوْنَ مِنَ الشُّهَدَاءِ
“Call two men from among you to witness. If two men are not available, then one man and two women from among those whom you approve as witnesses.” (Surah 2, al-Baqarah: 282)
Since marriage is a contract involving exchange, it is comparable to a commercial transaction. Therefore, like a commercial transaction, a marriage may also be concluded through the testimony of one man and two women.
Freedom: Imam Abu Hanifah and Imam al-Shafi‘i stipulated that the witnesses must be free. Ahmad did not stipulate freedom. He held that a marriage is valid even in the presence of two slaves, just as other transactional contracts are valid. There is no statement in the Qur’an or Sunnah rejecting the testimony of a slave if he is upright, pious, and truthful.
Being Muslim: If the marriage is between a Muslim man and a Muslim woman, the jurists have no disagreement that the witnesses must be Muslim. However, they disagree about the validity of non-Muslim witnesses when only the husband is Muslim. According to Ahmad, al-Shafi‘i, and Muhammad, the marriage is invalid, because it is the marriage of a Muslim and the testimony of a non-Muslim is not acceptable in it. When a Muslim man marries a Jewish or Christian woman, however, the testimony of two Jewish or Christian witnesses is valid according to Abu Hanifah and Abu Yusuf.
Presence of the witnesses: When the essential elements and conditions of marriage are present, the marriage is concluded. But without the presence and testimony of witnesses, its legal consequences and effectiveness do not arise. The presence of witnesses is something external to, and distinct from, the consent of the two parties. From this perspective, therefore, it is a formal marriage. It is the opposite of a consensual marriage. A consensual marriage is one in which consent immediately following the proposal (ijab) is sufficient to conclude the marriage. The consent of the two parties alone completes this marriage and produces all its legal consequences and effects. The law safeguards this marriage, and it does not depend on or require anything else.
Conditions for the effectiveness of marriage: Once a marriage has been validly concluded, there are two conditions for it to become effective without anyone else’s approval:
1. Both the person initiating the marriage and the person concluding the contract must be adults and of sound mind. If one of them is relatively incompetent—that is, insane or feeble-minded—or is a minor who can distinguish right from wrong, or is a slave, the marriage contract he concludes will be valid. However, it will be subject to the approval of the guardian or master. If he approves it, it becomes effective; otherwise, it will be annulled.
2. Both parties must possess the competence that empowers them to conclude the marriage contract, or aqd. If someone is so incompetent that he concludes the contract neither as an agent nor as a guardian, or concludes it as an agent but not in the manner for which he was appointed, or acts as a guardian while a closer and more entitled relative is present, then the contract concluded by such a person will be valid if all the conditions for its conclusion and validity are fulfilled, but it will remain suspended until approved by the competent person.
17. Conditions for the effectiveness of marriage
When all the essential elements are present in the marriage contract or aqd, and all the conditions of validity and implementation have been fulfilled, it becomes effective. Once effective, neither the witnesses, the wife, nor anyone else has the power to undo or annul it. Marriage ends only through divorce or the death of one of the spouses. This is the basic principle concerning the marriage contract. The purposes for which marriage was instituted in the Shariah—such as stability in married life, raising children, and fulfilling all their responsibilities—cannot be realized unless the marriage contract becomes effective.
For this reason, the scholars unanimously state that all the conditions for the effectiveness of marriage are founded on one condition: after the aqd has been concluded, validly conducted, and made effective, neither the husband nor the wife should have the power to annul it.
When is the aqd not binding? The aqd is not effective or binding in the following circumstances: when it becomes known that the man deceived the woman, or that the woman deceived the man. An example is when a man, himself sterile, conceals this from his wife and marries her. In that case, as soon as the wife learns of it, she may annul the marriage. If, however, she willingly accepts the man as her husband and agrees to become his life partner, that is a separate matter. When a sterile man married a woman, ‘Umar (may Allah be pleased with him) told him: Inform the woman that you are sterile and give her the choice of annulling the marriage or retaining it. If, after marrying while presenting himself as an upright person, it becomes known that he is sinful, the other party will have the right to annul the marriage.
In this regard, Imam Ibn Taymiyyah says: When a man marries a woman believing her to be a virgin, and it later becomes known that she had been married before, the husband has the right to annul the marriage; moreover, he may claim compensation for the dower. That is, he may reclaim whatever he paid in excess of the dower of a previously married woman. If the marriage is dissolved before intercourse in such a case, the dower is completely waived. Likewise, when a husband finds in his wife a defect that makes full sexual satisfaction unpleasant or repugnant, the aqd is not binding. For example, if she is permanently mustahadah, meaning that she suffers from irregular menstruation, this is a defect that justifies annulment of the marriage. Similarly, if the wife has a defect that prevents intercourse, such as an obstruction of the vaginal opening, this also applies. Another reason giving the man the right to annul the marriage is that the wife suffers from a repulsive disease, such as leprosy, insanity, or deformity. Likewise, when a man is leprous, insane, a minor, deformed, impotent, or unable to have intercourse because of erectile weakness, the wife also has the right to dissolve the marriage.
The jurists’ opinions on annulling a marriage because of defects: 1. Some jurists, including Imam Dawud al-Zahiri and Ibn Hazm, hold that a marriage cannot be annulled because of any kind of defect. Ibn Hazm also held that if a husband stipulates a condition for the marriage and discovers at the time of marriage that the condition has not been fulfilled, he has the right to annul it.
It is stated in al-Rawdah al-Nadiyyah: It is established by the necessary implications of the Shariah that the marriage contract is binding and that it brings the rules of married life into effect, such as the permissibility of sexual intercourse, the obligation to support the wife, the establishment of inheritance, and all other rulings. It is likewise established by the necessary implications of the Shariah that marriage ends only through divorce or death. Therefore, whoever claims that marriage may be ended for any reason must provide sound proof for that claim. The other defects mentioned by the jurists do not provide decisive proof for the permissibility of annulling a marriage. When the Messenger (peace and blessings be upon him) told a woman, after she disclosed her husband’s defect, “Go to your father’s house,” his statement indicated divorce, not annulment. Even if it is assumed that it could mean either annulment or divorce, it must nevertheless be understood according to its certain meaning, not a merely possible one. Similarly, there is no decisive proof permitting annulment because of impotence or inability to have intercourse; in such a case, divorce applies. Basically, a marriage remains in force until a cause for ending it occurs.
2. Some jurists hold that a marriage may be annulled for specific reasons, but not for reasons other than those. This is the majority view among the jurists. In support of their position, they cite the following hadiths:
First: It is narrated from Ka‘b ibn Zayd, or Zayd ibn Ka‘b, that the Messenger of Allah (peace and blessings be upon him) married a woman from the Banu Ghifar. On the wedding night, just before intercourse, he noticed whiteness extending from her waist to her ribs. He immediately withdrew from the bed and said, “Cover yourself with your garment.” He then took back nothing of what he had given her. —Ahmad and Sa‘id ibn Mansur.
Second: It is narrated from ‘Umar (may Allah be pleased with him) that he said: If someone marries a woman without knowing that she is insane, leprous, or deformed, or after being deceived, then if he has intercourse with her, he must pay her dower. However, the dower will be charged to the person by whom he was deceived. —Malik and al-Daraqutni.
These jurists differed over which defects justify annulling the marriage contract. According to Abu Hanifah, this may be done only because of the husband’s impotence or because his penis has been severed. Malik and al-Shafi‘i also included insanity, leprosy, deformity, and an obstructed vaginal passage. According to Imam Ahmad, annulment is also permissible when the area between a person’s vagina and anus is split and fused together.
A careful analysis of the matter: In reality, none of the above opinions deserves consideration. The foundation of married life is mercy, affection, and love. If either spouse has a defect or flaw that causes the other to feel aversion or hatred, married life cannot exist or endure. The purposes of marriage are not fulfilled in the presence of flaws and illnesses that create irritation and hatred between the spouses. This is why the Shariah has given the husband and wife the freedom to accept or reject the marriage. Imam Ibn al-Qayyim presented an excellent analysis of this matter. He said: Blindness, deafness, inability to speak, the loss of both hands, the loss of both feet, the loss of one hand, or the loss of one foot—whether found in the wife or the husband—are among the most repulsive conditions. Concealing them in advance is the vilest form of deception and fraud, which is contrary to Islam. A man married a woman, and he was sterile. Caliph ‘Umar (may Allah be pleased with him) told him: Inform the woman that you are sterile, and at the same time give her the choice: if she wishes, let her retain the marriage bond; otherwise, let her annul it.
Ibn al-Qayyim says: Reason dictates that if either the husband or the wife has a defect or flaw that makes the other feel repulsion toward him or her, and through which the fundamental purposes of marriage—affection and love—cannot be attained, the couple must have the choice of retaining or annulling that marriage. When a person is deceived or harmed by another, neither Allah nor His Messenger has made it obligatory upon him to tolerate or accept that deception and harm. Whoever investigates, observes, and examines the objectives, aims, justice, fairness, reasonableness, wisdom, and welfare of the Shariah in its sources cannot fail to recognize the superiority and soundness of Ibn al-Qayyim’s statement and its close conformity with the principles of the Shariah. Yahya ibn Sa‘id al-Ansari narrated from Sa‘id ibn al-Musayyab (may Allah be pleased with him) that ‘Umar (may Allah be pleased with him) said: If a woman who is insane, leprous, or missing a limb is married, and intercourse takes place before these illnesses are discovered, she is entitled to her specified dower because her body was touched. However, the guardian who deceived and cheated the husband by concealing this matter from him must provide the money for the dower.
Al-Sha‘bi narrated from ‘Ali (may Allah be pleased with him): If a man marries a woman without knowing that she is leprous, insane, deformed, or has a condition in her sexual organ that prevents intercourse, he has the choice of retaining the marriage or divorcing her until he touches her. Once he touches her, she becomes entitled to her dower because he enjoyed her sexual organ. Waki‘ said: ‘Umar (may Allah be pleased with him) said that whether the wife is blind or leprous, if intercourse takes place after marriage, she is entitled to her dower, but he may recover the dower from the person who deceived him. This proves that when ‘Umar mentioned the defects and flaws cited above, he did not mean that the matter was limited to them and that a husband could not leave his wife because of any other flaw. The renowned judge Shurayh (may Allah be pleased with him), remembered for his piety, honesty, and wisdom, also judged according to this principle. Ibn Sirin (may Allah be pleased with him) relates that a man brought a complaint before Judge Shurayh against another man, saying: This man told me, “I will marry you to the most beautiful woman,” but then he brought me a blind woman. Shurayh said: If he concealed a defect from you, this statement proves that when a wife conceals a defect, the husband has the right to reject the marriage.
Al-Zuhri said that a marriage may be rejected because of any incurable disease. A review of the legal opinions of the Companions and the early scholars shows that they did not restrict the right to annul a marriage to any specific defects. The only exception is a reported statement of ‘Umar (may Allah be pleased with him): “Women may not be sent back for any reason except four defects: mental deformity, leprosy, deformity, and a disease of the sexual organ.” Although this report is relatively less reliable, it has also been narrated from Ibn ‘Abbas with a reliable chain. However, all this applies only when the husband has not stipulated what he expects his future wife to be like. If he stipulates that she be flawless or beautiful, but she later proves to be ugly; or that she be a young girl, but she later proves to be old; or that she be fair-skinned, but she later proves to be dark-skinned; or that she be a virgin, but she later proves not to be one, then in all these cases he has the right to annul the marriage. If intercourse has not taken place, no dower is due. If intercourse has taken place, however, the dower must be paid. If the wife’s guardian is responsible for the deception, the dower will be imposed upon him as compensation. If the wife herself is responsible for the deception, her dower is forfeited. If she has already received it, the husband may recover it from her. This is one of the two views narrated from Imam Ahmad.
The students of Imam Ahmad said: If a wife stipulates a particular attribute for her future husband, but he later proves to be the opposite, she does not have the right to annul the marriage. There is one exception: if she stipulates that he must be a free man, but he is later found to belong to the slave class, she has the right to annul the marriage. If she stipulates noble lineage and he later proves otherwise, two opinions have been reported: according to some, she may annul the marriage; according to others, she may not. The demands of Imam Ahmad’s school and principles are that there is no difference between conditions stipulated by the husband and those stipulated by the wife. Rather, if a condition stipulated by the wife is not fulfilled, her right to annul or retain the marriage is more deserving of recognition, because she does not possess the power to separate through divorce. If the husband, despite possessing the power to separate through divorce, has the right to annul the marriage, then the wife, who has no power of divorce, is even more entitled to have the right to annul it. It is also lawful for the wife to annul the marriage when it becomes clear that the husband belongs to an extremely low occupational class, even though that occupation does not disgrace his religion or honor, but merely obstructs the wife from attaining complete pleasure and satisfaction and fully enjoying him. Suppose the wife stipulated that she wanted a healthy, strong, handsome young husband, but later found that her husband was blind, ugly, dark-skinned, old, mute, and deaf. How could she live with him, and how could she be prevented from dissolving the marriage? In reality, that would be wholly unjust, improper, irrational, and contrary to the rules of the Shariah.
He said: How can it be reasonable to give either spouse the right to annul the marriage merely because the other has a spot of leprosy on the body, while denying that right when the other has a chronic, incurable, and far more contagious skin disease? The same applies to other serious diseases. When the Messenger of Allah (peace and blessings be upon him) declared it unlawful for a seller to conceal a defect in merchandise, and prohibited anyone else who knows of that defect from concealing it from the buyer, why should concealing defects be unlawful in commercial dealings but not in marriage? When Fatimah, the daughter of Qays, sought the Messenger of Allah’s advice about Mu‘awiyah and Abu Jahm, he said: “Mu‘awiyah is miserly and, moreover, possesses no wealth; and Abu Jahm never removes the stick from his shoulder”—that is, he is always ready to strike. Thus this is an established truth: disclosing defects is even more important and essential in marriage. Once this is essential, why should a woman be required to accept for life someone whose defect was concealed from her through deceit and unlawful fraud? Why should she be forced to carry him on her shoulders like an inseparable yoke, despite intensely detesting him? Especially when she had stipulated in advance that she be free from such a flaw. This shows that the rules of the Shariah and its practical method do not recognize an obligation to retain such a marriage.
Abu Muhammad Ibn Hazm said: When the husband stipulates that the wife be free of defects, but after marriage finds some defect in her, the marriage was not actually concluded; rather, it was invalid from the outset. There is no room for reconsideration. Questions of residence, maintenance, or inheritance do not arise. He said: The woman brought into his home was not the woman he married. The woman he married is not this woman. There is no doubt that a flawless woman and a defective woman are not the same. Since he did not marry her, the two of them are unrelated man and woman. Therefore, no marital relationship can exist between them.
18. Women whom it is forbidden to marry
Not every woman may be married. The woman one intends to marry must not be among those prohibited—in other words, she must be a “ghayr mahram” woman. The prohibition may be permanent or temporary. Permanent prohibition means that she can never become the wife of that man. Temporary prohibition means that marriage to her is forbidden for a specific period. When circumstances change and the temporary prohibition ends, she becomes lawful for him. There are three causes of permanent prohibition:
1. Close kinship or blood relationship; 2. Relationship through marriage; 3. Relationship through breastfeeding.
The wording of the Holy Qur’an is:
حُرِّمَتْ عَلَيْكُمْ أَمَّتُكُمْ وَ بَنْتُكُمْ وَأَخَوتُكُمْ وَعَمْتُكُمْ وَخُلْتُكُمْ وَبَنْتُ الْآخِ بَنْتُ الْأَخْتِ وَأُمَّتُكُمُ الَّتِي أَرْضَعْنَكُمْ وَأَخَوتُكُم مِّنَ الرَّضَاعَةِ وَأَمَّتُ نِسَائِكُمْ وَرَبَّائِبُكُمْ الَّتِي فِي حُجُورَكُمْ مِنْ نِسَائِكُمُ الَّتِي دَخَلْتُمْ بِهِنَّ وَ فَإِن لَّمْ تَكُونُوا دَخَلْتُمْ بِهِنَّ فَلَا جُنَاحَ عَلَيْكُمْ رَ وَحَلَائِلُ أَبْنَائِكُمُ الَّذِينَ مِنْ أَصْلَابِكُمْ لا وَأَنْ تَجْمَعُوا بَيْنَ الْأَخْتَيْنِ إِلَّا مَا قَدْ سَلَفَ طَ إِنَّ اللَّهَ كَانَ غَفُورًا رَّحِيمًا )
Meaning: “Forbidden to you are your mothers, your daughters, your sisters, your paternal aunts, your maternal aunts, your brothers’ daughters, your sisters’ daughters, your foster mothers, your foster sisters, your mothers-in-law, your stepdaughters under your guardianship, born of your wives with whom you have consummated the marriage—but if you have not consummated the marriage with them, there is no blame upon you—and the wives of your biological sons, and that you marry two sisters simultaneously, except what has already occurred. Also forbidden are all married women…” (Surah al-Nisa’: 23)
Women prohibited because of close kinship: 1. Mother, 2. daughter, 3. sister, 4. paternal aunt, 5. maternal aunt, 6. brother’s daughter, 7. sister’s daughter. “Mother” means every woman under whose motherhood one stands. Thus this includes one’s mother, maternal grandmother, great-grandmother, paternal grandmother, the father’s mother, and the father’s grandmothers, however far upward the line extends. “Daughter” means every female whose biological paternity traces back to you, whether through one generation or several. Thus it includes one’s biological daughter and granddaughters. A sister is every woman who is the direct child of both the same mother and father, or of the same mother alone, or of the same father alone. A paternal aunt is every woman who is your father’s full or half sister, or your grandfather’s biological or half daughter. Your mother’s paternal aunt is likewise included among women prohibited like your own paternal aunt. A maternal aunt is the full or half sister of your mother. Your father’s maternal aunt is also a prohibited woman like your own maternal aunt. A brother’s daughter and a sister’s daughter are likewise the direct or indirect descendants of a brother or sister and are prohibited women.
Women prohibited through marital relationship: 1. The mother-in-law, her mother, and the mother of the father-in-law, however far upward the line extends. Allah says: “And the mothers of your wives are forbidden to you.” Consummation with the wife is not a condition for these women to become prohibited; merely concluding the aqd makes the wife’s mother, maternal grandmother, and paternal grandmother prohibited. It is narrated from Ibn ‘Abbas and Zayd ibn Thabit that a man who has concluded an aqd with a woman but has not consummated the marriage may marry that wife’s mother.
2. Her daughter with whom he has had intercourse. This includes her daughter’s daughter and her son’s daughter, however far down the line they may descend, for they are her daughters. See Surah al-Nisa, verse 23. According to the Zahiri madhhab, the daughter born to a wife’s previous husband is not prohibited if she is not under the guardianship of her current husband. It is reported that some Companions also held this view.
Malik ibn Aws said: My wife died leaving a child, and I became worried. Ali (may Allah be pleased with him) saw me and said: “What is wrong with you?” I said: “My wife has died.” Ali (may Allah be pleased with him) said: “Does she have a daughter?” I said: “Yes, she is in Ta’if.” He said: “Was she under your guardianship?” I said: “No.” He said: “Then marry her.” I said: “Has Allah not said in verse 23 of Surah al-Nisa that your wives’ daughters are prohibited?” He said: “That applies only to a daughter under guardianship.” However, most scholars rejected this view. They said: “This hadith attributed to Ali (may Allah be pleased with him) is not authentic.”
3. A son’s wife, a grandson’s wife, and his granddaughter’s daughter—however far down the line she may descend. (See Surah al-Nisa, verse 23.)
The Father’s Wife
It is prohibited for a son to marry his father’s wife, even if the marriage contract between the woman and his father was completed without intercourse. This practice was widespread in the pre-Islamic era. They called such a marriage “the detestable marriage.” Almighty Allah condemned this marriage and instilled abhorrence toward it. Imam al-Razi said: “Anything may be condemned for three reasons: it may be condemned rationally, legally, or socially. Allah condemned this marriage in all three respects. First He said: ‘It is an indecent act.’ This identifies its reprehensibility from the standpoint of reason. Then He said: ‘It is hateful.’ This identifies its reprehensibility from the standpoint of the Shariah. Then He said: ‘It is an evil way.’ This expresses its reprehensibility from the social standpoint.” Ibn Sa’d narrated concerning the reason for the revelation of this verse:
وَلَا تَنْكِحُوا مَا نَكَحَ آبَاؤُكُم مِّنَ النِّسَاءِ إِلَّا مَا قَدْ سَلَفَ طَ إِنَّهُ كَانَ فَاحِشَةً وَمَقْتًا طَ وَسَاءَ سَبِيلاه
When a man died leaving his wife, his son was considered entitled to marry her if she was not that son’s mother, or to marry her to whomever he wished. When Abu Qays died, his son neither claimed the right to marry his wife nor gave her in marriage to anyone. The woman then came to the Messenger (peace and blessings be upon him) and explained the entire situation. The Messenger of Allah (peace and blessings be upon him) told her: “Return to the home of your deceased husband. Perhaps Allah will reveal something concerning you.” Then this verse was revealed: (Verse 22, Surah al-Nisa).
“Do not marry women whom your fathers married, except what has already occurred. Indeed, it was an indecent, hateful, and evil way.”
According to the Hanafi madhhab, if a man commits adultery with a woman, touches or kisses her with desire, or looks at her private parts with desire, all her ascendants and descendants become prohibited to him, and all the ascendants and descendants of that man become prohibited to her. According to them, adultery and every act that leads to adultery make prohibited those people who become prohibited through marriage. They said that if a man commits adultery with his wife’s daughter or granddaughter, that wife becomes permanently prohibited to him.
According to most scholars, however, the women whom marriage makes prohibited do not become prohibited because of adultery. The evidence supporting their view is given below:
1. The following statement in verse 24 of Surah al-Nisa:وَأُحِلٌّ لَكُمْ مَا وَرَاءَ ذَلِكُمْ“And lawful to you are all others besides these.” After identifying the prohibited women, this statement explains those whom it is lawful to marry. It does not mention adultery as a cause that makes marriage to anyone prohibited.
2. Aisha (may Allah be pleased with her) narrated: “A man committed adultery with a woman, then wished to marry her or her daughter. The Messenger of Allah (peace and blessings be upon him) was asked about this. He replied: No unlawful act makes a lawful thing unlawful. Only what occurs through marriage—that is, intercourse—makes a lawful thing unlawful.” —Ibn Majah.
3. The rulings recorded by the jurists on this matter concern a necessary issue that sometimes arises extensively. It is impossible that the Shariah would remain silent about such matters, that no verse would be revealed in the Qur’an, no guidance would come from the Sunnah, no authentic hadith would exist, and no statement or action of any Companion would be found concerning them, even though they lived closest to the pre-Islamic era, which was notorious for widespread adultery. If any of them had understood that a lawful woman becomes unlawful because of adultery, or had perceived any rationale or cause for it, they would certainly have asked about it, and the need to explain the reason for the hardship they experienced would have arisen on a very broad scale.” —Al-Manar, vol. 4, p. 479.
4. Since adultery is an act by which a woman does not become a bed—that is, the child’s lineage is not dependent upon her—adultery does not make marriage to those women prohibited whom marriage itself makes prohibited.
Women Prohibited Because of Breastfeeding
Those women who are prohibited because of blood relations are likewise prohibited because of breastfeeding. Those prohibited by blood relations are: mothers, daughters, sisters, paternal aunts, maternal aunts, brothers’ daughters, and sisters’ daughters. This is what Allah mentioned in verse 23 of Surah al-Nisa: “Prohibited to you are…”
In that verse 23 of Surah al-Nisa, the milk-mother is given the status of the biological mother, and for the child who was breastfed, she and all those prohibited through the biological mother are likewise made prohibited. Thus, the following persons become prohibited because of breastfeeding:
1. The wet nurse who breastfed him, because by breastfeeding she is considered his mother.
2. The wet nurse’s mother, because she is his maternal grandmother.
3. The wet nurse’s husband’s mother, because she is his paternal grandmother.
4. The wet nurse’s sister, because she is his maternal aunt.
5. The wet nurse’s husband’s sister, because she is his paternal aunt.
6. The wet nurse’s sons’ daughters and daughters’ daughters, because they are his nieces.
7. A milk-sister, whether she is a full milk-sister or a half milk-sister.
(A full milk-sister is one whom the child’s own mother breastfed, whether at the same time as the breastfed child, before him, or after him. A half milk-sister is one whom his stepmother, or his own mother married to another man, breastfed.)
The Kind of Breastfeeding That Makes a Lawful Woman Unlawful: The breastfeeding that makes a lawful woman unlawful is unrestricted breastfeeding—that is, complete breastfeeding. This means that the child begins to suckle and leaves the breast whenever he wishes, without interruption or hindrance. One or two sucklings do not make a woman prohibited, because that does not constitute breastfeeding or meet the child’s nutritional need.
Aisha (may Allah be pleased with her) said that the Messenger of Allah (peace and blessings be upon him) said: “One or two sucklings do not make a lawful woman unlawful.” (All authentic hadith collections except al-Bukhari.) The scholars have held various views on this matter, summarized below:
Since the verse specifies no quantity of breastfeeding, any amount of milk is equally effective in making a woman unlawful. Al-Bukhari and Muslim narrated from Uqbah ibn al-Harith: Uqbah said: “I married Umm Yahya. Then a black slave woman came and said: I breastfed both of you. I immediately went to the Messenger of Allah (peace and blessings be upon him) and informed him. He said: ‘What is this claim? Did she really say that? … Leave her.’” It is clear here that the Messenger of Allah did not ask about the amount of milk; he directly ordered him to leave her.
This proves that breastfeeding alone is sufficient, regardless of its amount. Wherever it is found, the ruling prescribed for it applies. Moreover, since it is an act through which certain people become prohibited, it makes no difference whether the amount is small or large. It is like intercourse, through which certain people become prohibited. Whether breastfeeding is little or much, it inevitably produces some flesh and bones. This is the view of Ali (may Allah be pleased with him), Ibn Abbas (may Allah be pleased with him), Sa’id ibn al-Musayyab, al-Zuhri, al-Hasan al-Basri, Qatadah, Hammad, al-Awza’i, al-Thawri, Abu Hanifah, Malik, and one narration from Ahmad.
2. No one becomes prohibited unless there have been five separate breastfeedings, at least. Muslim, Abu Dawud, and al-Nasa’i narrated that Aisha (may Allah be pleased with her) said: “At first, it was revealed in the Qur’an that ten breastfeedings make [marriage] unlawful. Then this was changed to ‘five.’ When the Messenger of Allah (peace and blessings be upon him) died, the wording ‘five’ was still in the Qur’an and was recited.”
This narration qualifies the unrestricted statements of the Qur’an and Sunnah. Qualifying an unrestricted statement does not abrogate the earlier statement, nor does it make a general statement specific; rather, it merely clarifies an ambiguous statement. This view has been challenged on the grounds that no part of the Qur’an is authoritative and acceptable unless it is mutawatir (heard, preserved in memory, and transmitted by a vast majority). Had this objection not been raised, and had the matter truly been as Aisha (may Allah be pleased with her) stated, it would not have been unknown to the opponents, especially not to Ali (may Allah be pleased with him) and Ibn Abbas. Our position is that if this objection had not been raised against the view, it would have been the strongest view. This is why Imam al-Bukhari withdrew this narration. It is the view of Abdullah ibn Masud, Abdullah ibn al-Zubayr, Ata, Tawus, al-Shafi’i, Ibn Hazm, and most hadith scholars. It is also narrated from Aisha in one report and is Imam Ahmad’s best-known view.
3. The persons concerned become prohibited after three or more breastfeedings. The Messenger of Allah (peace and blessings be upon him) said: “One or two sucklings do not make anyone unlawful.” This clearly proves that fewer than three breastfeedings do not make anyone prohibited; rather, prohibition may result from more than two breastfeedings. This is one reported view from Abu Ubayd, Abu Thawr, Dawud al-Zahiri, Ibn al-Mundhir, and Ahmad.
The Wet Nurse’s Milk Makes Prohibition Unconditionally: Once the wet nurse’s milk nourishes the body, the persons concerned become prohibited, whether the child suckles directly at the breast, the milk is expressed and poured into his throat, or it is introduced into his stomach in some other way that nourishes him, removes his hunger, and is equivalent to one breastfeeding. This fulfills the purpose of breastfeeding and produces flesh and bones. Its effect in establishing prohibition is the same as that of natural breastfeeding.
Breast Milk Mixed with Another Substance: When a woman’s milk is mixed with food, drink, medicine, or the milk of a goat or another animal, and a nursing child drinks it, it causes prohibition if the woman’s milk predominates; otherwise, it does not. This is the view of the Hanafi madhhab. Muzani and Abu Thawr held the same view.
Ibn al-Qasim of the Maliki madhhab said: When a woman’s milk is mixed with water or something else and then given to a child, it does not cause prohibition. According to al-Shafi’i, Ibn Habib, Mutarrif, and Ibn Majishun of the Maliki school, it does cause prohibition even then, just as it would if the milk had not been mixed or, despite being mixed, had retained its original form.
Ibn Rushd’s View: Ibn Rushd said: The reason for the jurists’ disagreement is whether milk retains its capacity to establish prohibition when mixed with other food. The situation is analogous to that arising when an impure substance is mixed with a pure substance. The governing principle is whether it can still be called milk. If it can, it causes prohibition; otherwise, it does not.
The Wet Nurse: Regarding the wet nurse whose milk establishes prohibition, it makes no difference whether she is an adult or not, or whether she menstruates or is free from menstruation. The presence and flow of milk in her breasts are sufficient. It is also irrelevant whether she is married or widowed, pregnant or not pregnant.
The Age for Breastfeeding: The breastfeeding that makes someone prohibited must be completed within the child’s first two years. Allah Himself has prescribed this. Allah says:
وَالْوَالِدَتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ لِمَنْ أَرَادَ أَنْ يُتِمَّ الرَّضَاعَةَ6
“Mothers shall breastfeed their children for two complete years, for those who wish to complete the breastfeeding term.” For during this period the nursing child is so young that milk suffices for him. His flesh is formed from the milk, so he becomes part of the body of the woman whose milk he drinks. Thus, just as the wet nurse becomes prohibited to her own children, she likewise becomes prohibited to the child she has nursed.
Al-Daraqutni and Ibn Adi narrated from Ibn Abbas (may Allah be pleased with him): “Breastfeeding must occur only within the two years.”
It is also narrated from the Messenger of Allah (peace and blessings be upon him): “Breastfeeding continues as long as the bones become firm and flesh is formed.” —Abu Dawud. In fact, the bones become firm and flesh is formed within the first two years.
Umm Salamah (may Allah be pleased with her) said that the Messenger of Allah (peace and blessings be upon him) said: “Breastfeeding makes someone prohibited only when it nourishes the body and establishes a connection within the digestive system, and this occurs before the age of weaning.” —Declared authentic and narrated by al-Tirmidhi.
If a foster child stops breastfeeding before completing two years, becomes accustomed to ordinary food, and then a woman breastfeeds him again, according to Abu Hanifah and al-Shafi’i that woman becomes prohibited to him. The Messenger of Allah (peace and blessings be upon him) said: “Breastfeeding is only for relieving hunger.” According to Imam Malik, after the completion of two years, breastfeeding is the same as drinking water. Whether it is much or little, it does not make anyone prohibited.
He said: “When a child stops breastfeeding before completing two years, or refrains from breastfeeding and shows aversion to it, then whatever milk he drinks afterward does not make anyone prohibited.”
Breastfeeding an Adult: If an adult drinks milk for the reason mentioned above, most scholars hold, on the basis of the foregoing evidence, that no one thereby becomes prohibited. Some scholars, however, believe that regardless of the drinker’s age, the persons concerned become prohibited just as they do through an infant’s breastfeeding. This is the view of Aisha (may Allah be pleased with her), Ali (may Allah be pleased with him), Urwah ibn al-Zubayr (may Allah be pleased with him), Ata ibn Abi Rabah, Layth ibn Sa’d, and Ibn Hazm. They cite as evidence a hadith narrated by Malik from Ibn Shihab: When Ibn Shihab was asked about an adult drinking milk, he said: Urwah ibn al-Zubayr (may Allah be pleased with him) informed me that the Messenger of Allah (peace and blessings be upon him) ordered Sahlah bint Suhayl to breastfeed Salim. Accordingly, she breastfed him, and Sahlah regarded him as her son. Urwah said: Aisha (may Allah be pleased with her) followed what Sahlah had done. She breastfed those young men whom she wished to be able to visit her. She also instructed her sister Umm Kulthum and her nieces to breastfeed those young men whom she wished to visit her. Malik and Ahmad narrated: Abu Hudhayfah had adopted Salim as a son. Salim was the freed slave of an Ansari woman. Just as the Messenger (peace and blessings be upon him) had adopted Zayd as a son, Abu Hudhayfah had adopted Salim as a son. In the pre-Islamic era, when someone adopted a boy, people called him their son and he inherited from them. This practice continued until the following verse of Surah al-Ahzab was revealed: “Call them by their fathers’ names. That is more just in the sight of Allah. If you do not know their fathers, then they are your brothers in faith and your associates.” After this verse was revealed, people returned them to their fathers, and those whose fathers were unknown were treated as associates and brothers in faith. Then Sahlah came and said: “O Messenger of Allah, we regarded Salim as our son. He lived with me and Abu Hudhayfah and saw me in one garment while I was engaged in household work. Yet you know well what Allah has revealed concerning adopted sons like him.” The Messenger of Allah (peace and blessings be upon him) said: “Breastfeed him five times.” Thus he became a milk-son. (That is, thereafter she did not need to observe hijab before him.)
Zaynab bint Umm Salamah (may Allah be pleased with her) narrated: Umm Salamah said to Aisha (may Allah be pleased with her): “I would not like that the adolescent boy who visits you should visit me.” Aisha said: “Is there not an excellent example for you in the Messenger of Allah (peace and blessings be upon him)?” Umm Salamah said: “The wife of Abu Hudhayfah said: ‘O Messenger of Allah, Salim visits me, although he is an adult male, and Abu Hudhayfah dislikes his visits.’ The Messenger of Allah (peace and blessings be upon him) said: ‘Breastfeed him so that he may visit you.’”
The acceptable position among these two views becomes clear from the analysis of Allamah Ibn al-Qayyim. He said: “The hadith of Sahlah is neither abrogated, exceptional, nor applicable in every circumstance. Rather, it grants limited concession and flexibility only in cases of necessity, when a man cannot avoid visiting a woman, yet it is extremely difficult for her to observe hijab before him. It applies to such a person. An example is the situation of Salim with the wife of Abu Hudhayfah. When a woman breastfeeds an adolescent of this age out of necessity, that breastfeeding is effective. Apart from this, breastfeeding is of no benefit except during infancy. This is also the view of Shaykh al-Islam Ibn Taymiyyah.”
If the other hadiths that appear to permit breastfeeding an adult are unrestricted, they will be qualified by the hadith of Sahlah. If they apparently apply in every circumstance, they will be restricted to the exceptional case of extreme necessity mentioned above. This is preferable to considering the hadith abrogated or restricting it to a particular individual. This interpretation makes it more suitable and easier for both sides to act upon all the relevant hadiths. Moreover, the principles of the Shariah support it.
Testimony Regarding Breastfeeding: The testimony of one woman concerning breastfeeding is acceptable if she is the wet nurse. Uqbah ibn al-Harith narrated that after he married Umm Yahya, a black woman suddenly came and said: “I breastfed both of you.” Upon hearing this, I separated from her and informed the Messenger (peace and blessings be upon him). He said: “How could she claim that she breastfed both of you?” He then prohibited him from associating with Umm Yahya. Tawus, al-Zuhri, al-Awza’i, and others, and according to one narration Ahmad as well, use this hadith as evidence that one woman’s testimony regarding breastfeeding is acceptable. Most scholars, however, hold that the wet nurse’s testimony is insufficient, because it concerns her own act. Abu Ubayd stated that Umar, al-Mughirah, Ali, and Ibn Abbas (may Allah be pleased with them) refrained from separating a husband and wife on the basis of such testimony. Umar (may Allah be pleased with him) said: “If you obtain conclusive testimony, separate them. Otherwise, leave the husband and wife as they are. If they voluntarily wish to separate as a precaution, that is another matter.”
According to the Hanafi madhhab, testimony concerning breastfeeding must be given by two men, or by one man and two women. The testimony of women alone is not accepted, because Allah says: “Bring two witnesses from among your men. If two men cannot be found, then one man and two women whom you accept as witnesses are required.”
Al-Bayhaqi narrated: A woman was brought before Umar (may Allah be pleased with him) who testified that she had breastfed a certain man and his wife. Umar (may Allah be pleased with him) said: “No. I will not accept this testimony until two men, or one man and two women, testify.”
According to Imam al-Shafi’i, the matter is established by this testimony, and it is also established by the testimony of four women, because two women are equivalent to one man. Moreover, just as with childbirth, women have greater knowledge of breastfeeding. According to Imam Malik, the testimony of two women concerning breastfeeding is acceptable on the condition that their statement about the breastfeeding had become publicly known before they gave testimony.
Ibn Rushd said: Some have understood the hadith of Uqbah as recommending an act. According to one narration, this was also Imam Malik’s view.
The Wet Nurse’s Husband Is the Foster Child’s Father: When a woman breastfeeds a child, her husband becomes the foster child’s father, and his brother becomes the child’s paternal uncle. The first proof is the previously mentioned hadith of Hudhayfah. The second is a hadith narrated by Aisha (may Allah be pleased with her). The Messenger of Allah (peace and blessings be upon him) said: “O Aisha, allow the brother of Abu al-Qu’ays to enter the house, for he is your paternal uncle.” Abu al-Qu’ays’s wife had breastfed Aisha (may Allah be pleased with her).
Ibn Abbas (may Allah be pleased with him) was asked: A man had two slave women; one breastfed a female slave and the other breastfed a male slave. Could the male slave marry the female slave? He replied: “No, because the nursing woman is one.” This is the view of the four Imams, al-Awza’i, and al-Thawri. Among the Companions, Ali and Ibn Abbas likewise held this view.
Negligence Regarding Breastfeeding: Many people are careless about breastfeeding. They have their child breastfed by one or more women, yet feel no need to identify that woman’s children, siblings, children born to another wife, or her husband’s children and siblings. Consequently, they remain unaware of the rulings that result from breastfeeding, including the prohibition of marriage, and of the rights connected with this new relationship created by breastfeeding, which the Shariah gives the same status as blood kinship. Because of this ignorance, some marry their milk-sisters, milk-aunts, or milk-maternal aunts. It is essential to exercise caution in this matter so that people do not become involved in prohibited acts.
The Rationale Behind the Prohibition of Marriage
It is stated on page 470 of Tafsir al-Manar, volume 4: “Allah Almighty has created many kinds of relationships in human society, through which people show one another affection, compassion and kindness, and by means of which they cooperate to prevent various harms and achieve success. The strongest of these relationships are blood relationships and marital relationships. Each of these two relationships has characteristics and degrees of distinction and honor. Among blood relationships, the strongest are the spontaneous bonds of affection and love between parents and their children and among the children themselves. If someone investigates the secret of a father’s affection and love for his child, he will find that a natural desire exists in his heart, impelling him to nurture the child so that, at the very least, he may grow to be his equal. Thus, he looks at his child as though he were looking at his own limbs. To a considerable extent, he relies on his child in the future. In the child’s heart, he finds the feeling that his father is the source of his existence, the guide of his education and the symbol of his honor. Because of this feeling, the child reveres and respects his father. And because of that spontaneous affection and tenderness, the father loves and helps his child. This was stated by Imam Muhammad Abduh.”
It is universally known that a mother’s affection for her child is much stronger than a father’s. Her compassion and tenderness are stronger and deeper than a father’s, because the mother is more humble, gentle and intensely emotional. Moreover, when a child is conceived in its mother’s womb, it is formed from her blood, and blood is the fundamental substance of its life. After birth, when the infant feeds on its mother’s milk, it receives renewed affection with every suck as it nurses from her breast.
This stream of affection flows from the mother’s heart. Consequently, the child first learns to love its mother in this world. Before its mother, it forms no bond of affection with anyone else. After its mother, it loves its father, but less than its mother, although it respects its father more than its mother. Thus, the profound affection created from birth between parents and children is the finest and purest relationship in worldly life. If even the slightest trace of sexual desire were mixed into this noble and pure relationship, would that not be an assault on human nature? Would it not destroy that most sacred relationship? Certainly it would. For this reason, the prohibition of marrying mothers is mentioned first and given the greatest emphasis in the verse. Immediately after mothers, the ruling prohibiting daughters is mentioned. Humanity has generally been protected from assaulting, tampering with and harming its natural disposition. Otherwise, any person of sound nature would be astonished to see the prohibition of marrying mothers and daughters, since his nature itself understands that it is impossible to desire marriage with one’s mother or daughter. The relationship between brothers and sisters is likewise like that between parents and children, for they are like limbs of the same body. Brothers and sisters originate from the same parents; both are equally connected to the same parents, with no distinction or difference. Moreover, both are raised in the lap of the same mother, generally according to the same method. The bond of brotherhood between them is also imbued with the same kind of affection. The bond between one is no stronger than that between the other, just as a father’s and mother’s love for their child is stronger than a child’s love for either parent. Therefore, the affection brothers and sisters have for one another is equal, and nothing else compares with it. No other relationship or bond in human society possesses such complete equality, affection and loyalty. It is said that a woman once pleaded with Hajjaj ibn Yusuf, history’s most ruthless Muslim ruler, for the lives of her husband, son and brother. Hajjaj was determined to kill all three. He announced that, in response to her plea, he would spare one of them, and that she could choose. The woman chose her brother. When Hajjaj asked why, she replied: “There is no substitute for a brother, because our parents have died. If my husband dies, I can marry another husband, and if my child dies, I may have another child.” Hajjaj was impressed by this answer and released all three. Hajjaj said: “Had she chosen her husband instead of her brother, I would have spared none of them.”
In short, the relationship between brother and sister is innate and unbreakable. Brothers and sisters do not desire sexual relations with one another, because the bond of brotherhood itself imposes on people such duties and accountability that leave no room for any relationship between them other than that prescribed by nature. Thus, the wisdom of the Shariah is that it has prohibited marrying one’s sister, so that people seek another way to satisfy their natural biological needs rather than defile the sacred relationship between brother and sister.
The reason for prohibiting marriage to paternal and maternal aunts is that they are blood relatives like one’s parents. The Messenger of Allah, peace and blessings be upon him, said: “The paternal uncle is like the father.” In other words, they are like two branches of a tree emerging from the same root. Since the relationship with paternal uncles and aunts derives from fatherhood, and that with maternal uncles and aunts derives from motherhood, jurists accordingly stated that the prohibition of grandmothers follows from and falls under the prohibition of mothers. Therefore, carefully preserving the bonds of affection with paternal and maternal uncles and aunts, maintaining goodwill and cooperation with them, and having no sexual relationship with them are demanded by the natural disposition and by the beauty of Islam. This can be achieved through prohibiting marriage to paternal and maternal aunts. The reason nieces are prohibited is that they are equivalent to one’s own daughters, since brothers and sisters are like oneself. It is true, however, that a person’s affection and love for his own daughter is stronger than his affection for a niece, because his daughter has grown up under his care and loving attention, whereas a niece has not. The love for one’s brothers and sisters is also deeper than the love for their daughters.
The difference between nieces and paternal or maternal aunts is that affection and love for nieces arise from tenderness, whereas affection and love for paternal and maternal aunts arise from honor and respect. Both are equally remote from relationships based on sexual desire. The reason paternal and maternal aunts are mentioned first in the sequence of the Qur’an’s account is that they are closer to one’s father and mother. Therefore, the relationship with them is more honorable and worthy of respect than the relationship between brothers and sisters.
These are some categories of close relatives through whom people become bound to one another by affection, tenderness, love and cooperation, and toward whom Allah has created in people’s hearts abundant attraction, reverence, respect and love. For this reason Allah has prohibited marriage among these close relatives, so that marital relationships may be formed with comparatively more distant people, whose ties are weaker, such as unrelated people and more distant levels of kinship, including paternal and maternal cousins. In this way, ever-new marital relationships arise among humanity, becoming as deep and intimate in affection and love as blood relationships. Consequently, bonds of affection and love among people continue to expand. Herein lies the rationale of the Shariah’s prohibition of marriage among close relatives.
Imam Muhammad Abduh then says: There is also a major biological and physical rationale behind this. Namely, marriage among close relatives is a significant cause of reproductive weakness. When such relationships continue repeatedly and uninterruptedly, this weakness also persists until the line is discontinued. This weakness arises for two reasons. First, as the jurists have mentioned, the intensity of reproductive capacity corresponds to the intensity of sexual desire between husband and wife. Many believe that this is relatively weaker among close relatives. For this reason they have judged marriage to cousins and similar relatives to be makruh. The reason is that sexual desire is a mental awareness, whereas the feeling of affection arising from kinship is its opposite. The latter will either destroy the former or make it weak and unstable. The second reason is known to physicians. An example familiar to farmers is used to explain it to ordinary people: when the same kind of seed is repeatedly sown in a field, its yield gradually declines, until eventually total production reaches zero. The materials from which its principal nourishment is obtained are insufficient, while those from which the crop’s food and nourishment are not obtained are present in excess; yet the latter obstructs its intake of nourishment. Had that crop been sown in another field with another crop, both would have been produced abundantly. This is an obvious fact to farmers. Sowing different varieties of a crop is more productive. For example, when a particular type of wheat is sown in a field and seed is then taken from its harvest and sown in the same field, the yield is relatively lower. But when seed from another variety of wheat is sown in that field, it produces a relatively greater harvest. Likewise, women are a kind of field in which the seed of children is sown, while people of different nations and groups are like different kinds of crops and seeds. Therefore, it is preferable for a man of one lineage to marry into another lineage, so that sound offspring may be born. A child inherits from its parents their temperament, physical constitution and components, character and spiritual qualities. In some qualities, however, a child may also be the opposite of its parents. In reality, inheriting the qualities of one’s parents, or their opposite qualities, is an immutable law of creation and nature. Each of these two tendencies must be given the opportunity to perform its role so that the human lineage may progressively improve. People draw closer to one another and gain strength from one another. Marriage among close relatives, however, obstructs this objective. It is thus proven that, both physically and mentally, marriage among close relatives is harmful, contrary to nature, an impediment to social relationships and an obstacle to human development.
Imam al-Ghazali mentioned in Ihya Ulum al-Din: “To obtain the qualities expected in a woman, it is essential that she not be a close relative. For example, if one marries a close female relative, the child born from her will be weak.” In this connection he cited a hadith that is not authentic. However, Ibrahim al-Harbi reported among rare hadiths that Umar, may Allah be pleased with him, advised the family of Sa’ib:
“Live among strangers, and you will not become weak.” That is, marry women unrelated to you, so that your descendants will not be physically weak. In support of this, Imam al-Ghazali argued:
“Sexual desire is generated by the intensity of sensations arising from sight or touch. This sensation is more intense in the company of new and unfamiliar people. In the case of someone who is well known and constantly seen, the sensation does not intensify enough to perceive and be influenced by that person completely, nor does sexual desire arise toward them. However, al-Ghazali’s argument does not apply in every case.
The Rationale for Prohibiting Marriage Due to Breastfeeding
The reason for prohibiting marriage due to breastfeeding is that some parts of the nursing child’s body are formed from the milk of the woman who breastfeeds it. Consequently, like a child born from that woman’s womb, the child inherits the mother’s temperament and character. Indeed, it is a great mercy from Allah toward humanity that, by elevating milk kinship to the level of blood kinship, He has broadened the circle of our family relationships.
The Rationale for Prohibiting Marriage Due to Marital Relations
The reason for prohibiting marriage due to marital relations is that a wife’s mother and her daughter born to another husband are entirely prohibited to the man. This is because a man’s wife is a part of her soul and even a complementary and adaptable part of her human nature. Therefore, it is appropriate that the wife’s mother should hold the same level of honor, respect and status as his own mother. If she were his wife’s co-wife, that would be extremely repugnant, because affinity through marriage is equivalent to lineage-based kinship. When a man marries into a family, he becomes like a member of that family, and a new feeling of affection for them arises in his heart. Therefore, a mother and daughter can never be wives of the same husband. This contradicts the rationale of marital relations and the affinity resulting from them, and it harms family peace and order. Thus, what accords with nature and ensures overall welfare is to grant one’s mother-in-law and foster daughter the same status as one’s mother and biological daughter. Likewise, one should regard one’s son’s wife as one’s own daughter and show her the same affection and care, just as a stepmother must be given the same status as one’s own mother.
Since Allah’s prohibition of keeping two sisters together in one marital bond is a specially gracious and wise arrangement, intended to make marriage a pure and complete bond of love and affection and to cleanse it entirely of every taint of mutual hatred, hostility and harm, it can never be lawful to marry, while one’s wife remains married, those closest to her—namely, her mother, sister, stepmother and son’s wife. Allah Himself has stated that the profound purpose of marriage is to grant both husband and wife complete mental peace and satisfaction through one another. Conversely, the purpose of marriage is to extend mutual goodwill, harmony and love on a wider scale between husband and wife and among those bound to them by blood relationships. Allah says:
وَمِنْ أَيْتِهِ أَنْ خَلَقَ لَكُم مِّنْ أَنْفُسِكُمْ أَزْوَاجًا لِتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُمْ مَوَدَّةً ورَحْمَةٌ مَا إِنَّ فِي ذَلِكَ لَايت لِقَوْمٍ يَتَفَكَّرُونَ
Meaning: Among Allah’s signs is that He created wives for you from among yourselves, so that you may find peace and satisfying refuge with them, and He created love, affection and tenderness among you all. (Surah al-Rum, verse 21)
It is clear here that He confined personal mental peace and satisfaction to the marital relationship, but did not confine affection and tenderness to the marital relationship. The latter also exists in the mutual relationship between husband and wife, among the blood relatives connected to them, and the children deepen and strengthen the relationship between husband and wife.
Women Whose Marriage Is Temporarily Prohibited
1. Combining Women Who Are Prohibited Together:
It is prohibited to have two sisters as wives at the same time, to combine a wife with her paternal or maternal aunt, or to combine two women who could not lawfully marry each other if either of them were a man. The evidence is:
The statement of Almighty Allah:
وَأَنْ تَجْمَعُوا بَيْنَ الْأَخْتَيْنِ إِلَّا مَا قَدْ سَلَفَ
“It is prohibited to combine two sisters. However, what happened in the past is a different matter.” (An-Nisa: 23)
Al-Bukhari and Muslim narrated from Abu Hurayrah, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, prohibited having a woman and her paternal or maternal aunt as wives at the same time.
Ahmad, Abu Dawud, Ibn Majah and al-Tirmidhi narrated from Fayruz al-Daylami that when Fayruz al-Daylami accepted Islam, two sisters were his wives. The Messenger of Allah, peace and blessings be upon him, then said to him: “Divorce either one of them.”
Ibn Abbas, may Allah be pleased with him, said: The Messenger of Allah, peace and blessings be upon him, prohibited marrying a niece together with her paternal or maternal aunt, and said: “This would sever the ties of blood relatives.” —Al-Qurtubi.
Abu Dawud narrated from Husayn ibn Talhah that, fearing the severance of kinship, the Messenger of Allah, peace and blessings be upon him, prohibited marrying a wife’s sister while she remained his wife. In fact, the hadiths of Ibn Abbas and Husayn ibn Talhah explain the true purpose and rationale for prohibiting this type of marriage: protecting against the severance of ties among blood relatives. For when two female blood relatives are brought together, mutual hatred, hostility and jealousy inevitably arise. A relationship free of resentment between two co-wives is extremely rare. It is not only prohibited to keep two mahram women—that is, blood relatives—as wives at the same time; it is also prohibited to marry one of them during the other’s iddah. The scholars unanimously stated that if a man gives his wife a revocable divorce, he may not marry her sister or take four other wives until her iddah ends, because the marriage remains in force and he has the right to revoke the divorce at any time. There is disagreement, however, concerning an irrevocable divorce. According to Ali, Zayd ibn Thabit, Mujahid, Ibrahim al-Nakha‘i, Sufyan al-Thawri, the Hanafi school and Imam Ahmad, even in this case he may not marry her sister or four other women before the iddah ends, because the marriage legally remains in force until the iddah ends and the wife is entitled to maintenance during the iddah. Ibn al-Mundhir, however, said that according to our view and that of Imam Malik, he may take his divorced wife’s sister, or four women besides her, as wives. Sa‘id ibn al-Musayyab, al-Hasan and al-Shafi‘i also held this to be permissible, because in their view an irrevocable divorce terminates the marriage contract. Therefore, marrying the wife’s sister or four women at that point is not considered combining women who are prohibited together.
When two prohibited women are combined—for example, when two sisters are taken as wives—it must be determined whether they were married through a single contract or through separate contracts. If they were married through one contract, it must be determined whether there was a legal impediment to marrying either one. If there was none, both contracts become invalid and the marriage is deemed void. In that case, the husband and both wives must annul the marriage and separate. If they do not separate, the court will separate them. If the separation occurs before consummation, neither woman is entitled to a dower. Such a contract is not regarded as a contract at all in the eyes of the Shariah. If separation occurs after consummation, the woman with whom intercourse took place must be given either mahr al-mithl, or whichever is less—the mahr al-mithl or the stipulated dower. Intercourse with her entails all the consequences that result from an invalid marriage.
If one of the two women is someone whom it is legally impermissible to marry—for example, she is another man’s wife or a divorcee whose iddah has not ended—and the other is someone whom it is permissible to marry, the marriage of the permissible woman is valid, while the marriage of the other is invalid.
If he marries the two women through separate contracts, and both contracts fulfill the necessary conditions and essential elements, then if it is known which was concluded first, the first is valid and the second is invalid. If only one of the two fulfills the conditions of validity, that one is valid, whether it occurred first or later. If it is not known which occurred first, or it was known but later forgotten—for example, one man appointed another as his agent to arrange his marriage, and the agent subsequently married him to two women, after which it became known that the two were sisters, but it was not known which contract came first, or it was known but not remembered—then both marriages are invalid. There is no valid basis for giving one precedence over the other. The rules of an invalid marriage apply to both marriages. (Family Law, Abd al-Wahhab Khallaf)
2–3. Another Man’s Wife or a Divorced Woman Observing Iddah: It is forbidden for every Muslim to marry another man’s wife or a divorced woman who is observing iddah, because this violates the husband’s rights. Almighty Allah said:
وَالْمُحْصَنَتُ مِنَ النِّسَاءِ إِلَّا مَا مَلَكَتْ أَيْمَانُكُمْ“And married women are also prohibited to you, except those whom your right hands possess.” (Surah an-Nisa: 24)
That is, even if female prisoners of war are married, they become lawful for their captors after one menstrual period has cleared the womb of the previous semen. Muslim and Ibn Abi Shaybah narrated from Abu Sa‘id, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, sent an army to Awtas. They fought a group of enemy soldiers there. The Muslim army was victorious, and a number of women were captured. Some of the Companions of the Messenger of Allah, peace and blessings be upon him, refrained from having intercourse with them because their husbands were polytheists. Allah therefore revealed this verse, informing them that after the waiting period was fulfilled by one menstruation clearing the womb, they were lawful for them. Al-Hasan said: Before taking the captive women as wives, the Companions would wait for one menstruation to clear their wombs. The ruling concerning women observing iddah has been discussed previously.
4. A Wife Divorced Three Times: A wife divorced three times does not become lawful for her first husband until she has entered into a genuine marriage with someone other than that husband—that is, without any form of tahleel or other condition.
5. Marriage by a Person in Ihram: It is forbidden for a person in ihram to conclude a marriage contract, whether for himself, on behalf of someone else as a guardian, or on behalf of someone else as an authorized agent or representative. As soon as such a contract is concluded, it becomes invalid, and no legal consequence under the Shariah takes effect from it. Muslim and others narrated from Uthman ibn Affan, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “A person in ihram shall not marry, arrange a marriage for anyone else, or even propose marriage.” —Al-Tirmidhi. However, the words “or even propose marriage” do not appear in al-Tirmidhi. Some Companions acted according to this hadith. The views of Imam al-Shafi‘i, Ahmad and Ishaq are likewise that a marriage contracted by a person in ihram is invalid and becomes void immediately. The report that the Messenger, peace and blessings be upon him, was in ihram when he married Maymunah, may Allah be pleased with her, is refuted by a hadith narrated by Muslim, according to which he married her while not in ihram. Al-Tirmidhi said: There is disagreement concerning the Messenger of Allah’s marriage to Maymunah, because he married her on the way to Makkah. Some therefore say that he married her while free of ihram, but news of the marriage spread after he had entered ihram. He consummated the marriage while free of ihram at a place called Sarif on the road to Makkah. According to the Hanafi school, however, it is valid for a person in ihram to marry, because ihram does not restrict a woman’s right to marriage; it restricts only the right of intercourse. Ihram in no way prevents the validity of the contract.
6. Marrying a Slave Woman Despite the Availability of a Free Woman: There is consensus that a male slave may marry a female slave, that a free woman may marry a male slave with her own and her guardian’s consent, and that a person may marry a slave whom he owns. There is also consensus that if a woman becomes the owner of her own husband, the marriage is immediately annulled. There is disagreement, however, over the validity of a free man’s marriage to a slave woman. According to the majority of scholars, a free man may marry a slave woman only under two conditions: (1) he is unable to marry a free woman; and (2) he fears falling into fornication if he does not marry immediately. Those who hold this view cite the following Qur’anic verse as evidence:
وَمَنْ لَّمْ يَسْتَطِعْ مِنْكُمْ طَوْلًا أَنْ يُنْكِعَ الْمُحْصَنَتِ الْمُؤْمِنَتِ فَمِنْ مَّا مَلَكَتْ أَيْمَانُكُمْ مِّنْ فَتَيْتِكُمُ الْمُؤْمِنتِ إِلى قوله تعالى : ذَلِكَ لِمَنْ خَشِيَ الْعَنَتَ مِنْكُمْ وَأَنْ تَصْبِرُوا خَيْرٌ لَكُمْ
Meaning: Whoever among you lacks the financial means to marry free, chaste women should marry one of the believing young women among your slave girls. ……… This ruling is for whoever among you fears falling into adultery. Yet patience is better for you. (Surah al-Nisa)
Al-Qurtubi said: “Remaining unmarried with patience is better than marrying a slave girl, for if he marries a slave girl, the child born to her will also be born a slave. Patience with self-restraint and noble character is better than such generosity. Umar (ra) said: If a free man marries a slave girl, half of him—that is, his child—becomes an enslaved servant. Dahhak ibn Muzahim said: I heard Anas ibn Malik (ra) say that the Messenger (sa) said: Whoever wishes to meet Allah in a pure and purified state should marry free women. —(Ibn Majah). According to Abu Hanifa, it is permissible for a free man to marry a slave girl even if he has the ability to marry a free woman. However, it is not permissible for a man who already has a free woman as his wife to marry a slave girl. This is prohibited in order to safeguard the honor of the free woman.”
7. Marrying an adulterer: Until repentance, it is not permissible for a man to marry an adulterous woman, nor for a woman to marry an adulterous man.
The evidence for this is given below: 1. Allah has made the chastity of both women and men a condition for marriage. He said:
الْيَوْمَ أُحِلَّ لَكُمُ الطَّيِّبَت ط وَطَعَامُ الَّذِينَ أُوتُوا الْكِتَبَ حِلٌّ لَكُم من وَطَعَامُكُمْ حِلٌّ لمرز وَالْمُحْصَنَتُ مِنَ الْمُؤْمِنَاتِ وَالْمُحْصَنَتُ مِنَ الَّذِينَ أُوتُوا الْكِتَبَ مِنْ قَبْلِكُمْ إِذَا أَتَيْتُمُوهُنَّ أُجُورَهُنَّ مُحْصِنِينَ غَيْرَ مُسْفِعِينَ وَلَا مُتَّخِذِي أَخْدَانٍ
Meaning: Today all pure foods have been made lawful for you. The food of those who were given the Scripture is lawful for you, and your food is lawful for them. Also lawful for you are chaste believing women and chaste women from among those who were given the Scripture before you, when you give them their due dowries, seeking chastity, not fornication, nor taking secret lovers. (Surah al-Ma’idah: verse 5)
That is, just as Allah has made pure foods and the food of the Jews and Christians lawful, He has likewise made Muslim chaste women and Jewish and Christian chaste women lawful—provided that you husbands are also righteous and do not seek fornication or wish to take concubines.
Allah mentioned this matter in connection with taking slave women as wives because of being unable to marry free women. In verse 25 of Surah al-Nisa, Allah states:
فَانْكِحُوهُنَّ بِإِذْنِ أَهْلِهِنَّ وَآتُوهُنَّ أُجُورَهُنَّ بِالْمَعْرُوفِ ، مُحْصَنَاتِ غَيْرَ مُسَافِعَاتِ وَلَا مُتَّخِذَاتِ أَخْدَانٍ
“Therefore marry them with the permission of their masters and give them their dowries in a fair manner. Take them as chaste wives, not as fornicators or secret lovers.”
In support of this, the Qur’an states unambiguously:
الزَّانِي لَا يَنْكِحُ إِلَّا زَانِيَةً أَوْ مُشْرِكَةً وَالزَّانِيَةُ لَا يَنْكِعُهَا إِلَّا زَانٍ أَوْ مُشْرِكٌ ، وَحُرِّمَ ذَلِكَ عَلَى الْمُؤْمِنِينَ
Meaning: An adulterous man shall marry none but an adulterous or polytheist woman, and an adulterous woman shall be married by none but an adulterous or polytheist man. This has been forbidden to the believers. (Surah al-Nur: verse 3).
That is, such a marriage contract is not valid. “This has been forbidden to the believers” means that it is forbidden for believers to marry women or men known as adulterers or polytheists. Only an adulterer or polytheist would commit such an act.
Amr ibn Shuayb narrated that Mursad al-Ghanawi used to take captives held in Makkah away. There was a certain adulterous woman in Makkah named Anaq. She had been Mursad’s companion during the Age of Ignorance. Mursad said: I asked the Messenger (sa), “Shall I marry Anaq?” He gave me no answer. Then the verse was revealed: “An adulterous woman shall be married by none but an adulterous or polytheist man.” Thereafter the Messenger (sa) called me and said: “Do not marry Anaq.” Narrated by Abu Dawud, al-Tirmidhi and al-Nasa’i.
Abu Hurayrah (ra) said that the Messenger of Allah (sa) said: An adulterer who has been punished by flogging shall marry none but an adulterous woman like himself. Narrated by Ahmad and Abu Dawud.
Al-Shawkani said: The above account primarily applies to a person whose inclination toward adultery has become public. This proves that it is not permissible for a man to marry a woman known to be involved in adultery. Likewise, it is not permissible for a woman to marry a man known to be involved in adultery. Verse 3 of Surah al-Nur is the clearest proof, for its conclusion states unambiguously: “This has been forbidden to the believers.” This statement clearly makes it haram to knowingly marry adulterous women or men.
The book Islam and Modern Medical Science states: There is a vast difference between marriage and adultery. Marriage is the foundation of society and the source of its existence. It is the natural law on which the entire world operates. It is the natural ordinance that determines the value and dignity of life. Marriage is another name for genuine love, pure affection, mutual assistance in living, contributing to the formation of a family, and building the world.
The significance of prohibiting marriage to adulterous women and men: Islam did not wish to place a Muslim man under the control of an adulterous woman or a Muslim woman under the control of an adulterous man. It did not wish to subject a pure and virtuous man or woman to the influence of the hateful, corrupt hearts and disease-ridden bodies of adulterers. In all its commands and prohibitions, Islam seeks to ensure the happiness and peace of humankind and establish it in the position of highest honor.
Adulterers are a source of terrible diseases: How can adulterous men and women be happy in worldly life? They carry the most dangerous and incurable diseases. The diseases they carry affect every part of their bodies. AIDS, gonorrhea and syphilis are perhaps the worst sexual diseases, turning adulterers into a widespread and far-reaching calamity that must be completely eradicated from the earth. A human society in which such adulterers live can never be happy, because they pass on to future generations, along with their mental illnesses, hereditary fatal diseases. Adultery can even cause severe inflammation in the sexual organs, creating the risk of physical and moral deformities in children.
The reason for the resemblance between adulterers and polytheists: A pure and virtuous Muslim who has shaped his life according to the teachings and culture of the Holy Qur’an and the Sunnah of the Messenger of Allah cannot live with an adulterous woman who does not share his outlook or lead a life as pure as his. He cannot establish or maintain a marital relationship with a woman whose consciousness and feelings are not at his level. For he knows Allah’s statement:
خَلَقَ لَكُم مِّنْ أَنْفُسِكُمْ أَزْوَاجًا لِتَسْكُنُوا إِلَيْهَا وَجَعَلَ بَيْنَكُمْ مَوَدَّةً وَرَحْمَةٌ طَ إِنَّ فِي ذَلِكَ لَأَيْتَ لِقَوْمٍ يَتَفَكَّرُونَ
Meaning: He created for you from among yourselves spouses with whom you may live in peace, and He placed affection and mercy between you.” (Surah al-Rum: verse 21)
How can harmony and love develop between a righteous, virtuous Muslim and an adulterous woman? How can the heart of a believer possessing pure faith find peace with an adulterous woman, and how can he live peacefully with her?
Similarly, just as a Muslim cannot marry an adulterous woman because of her distorted mentality and deficient emotions, he likewise cannot live with a polytheist woman who does not share his creed and faith or his outlook on life. A Muslim’s religion and faith forbid him from the sins and evils that a polytheist’s religion does not forbid, and it does not acknowledge Islam’s sublime human principles. Shirk has its own false creed and beliefs. The outlook of shirk is leagues away from the outlook of Islam, and the intellect of a polytheist has no connection with that of a Muslim. Therefore Allah said:
وَلَا تَنْكِحُوا الْمُشْرِكْتِ حَتَّى يُؤْمِنْ طَ وَلَامَةٌ مُؤْمِنَةٌ خَيْرٌ مِّنْ مُشْرِكَةٍ وَلَوْ أَعْجَبَتْكُمْ ج وَلَا تُنْكِحُوا الْمُشْرِكِينَ حَتَّى يُؤْمِنُوا ط وَلَعَبْدٌ مُؤْمِنٌ خَيْرٌ مِنْ مُشْرِكَ وَلَوْ أَعْجَبَكُمْ أُولَئِكَ يَدْعُونَ إِلَى النَّارِج وَاللهُ يَدْعُوا إِلَى الْجَنَّةِ وَالْمَغْفِرَةِ بِإِذْنِهِ : وَيَبِينُ ايتِهِ لِلنَّاسِ لَعَلَّهُمْ يَتَذَكَّرُونَ
Meaning: Do not marry polytheist women until they believe. A believing slave woman is better than a polytheist woman, even if she pleases you. And do not give your women in marriage to polytheist men until they believe. A believing slave is better than a polytheist, even if he pleases you. They invite to the Fire, while Allah invites to Paradise and forgiveness by His permission. He makes His revelations clear to the people so that they may take heed.” (Surah al-Baqarah: verse 221)
Repentance erases all past sins:
If adulterous men and women make sincere repentance by seeking forgiveness, regretting and abandoning sin, and both begin a new, clean life free of sin and corruption, Allah will accept their repentance and, by His mercy, include them among His righteous servants. Allah said:
وَالَّذِينَ لَا يَدْعُونَ مَعَ اللَّهِ إِلَمَا أَخَرَ وَلَا يَقْتُلُونَ النَّفْسَ الَّتِي حَرَّمَ اللَّهُ إِلَّا بِالْحَقِّ وَلَا يَزْنُونَ ، وَمَنْ يَفْعَلْ ذَلِكَ يَلْقَ أَثَامًا يُضْعَفْ لَهُ الْعَذَابُ يَوْمَ الْقِيمَةِ وَيَخْلُن فِيْهِ مُهَانًا ، إِلَّا مَنْ تَابَ وَآمَنَ وَعَمِلَ عَمَلاً صَالِحًا فَأُولَئِكَ يُبَدِّلُ اللَّهُ سَيِّاتِهِمْ حَسَنَت طَ وَكَانَ اللَّهُ غَفُورًا رَّحِيمَانِ
Meaning: The beloved servants of Allah are those who do not worship any deity besides Allah, do not take a life that Allah has forbidden except for a just cause, and do not commit adultery. Whoever does these things will face punishment. His torment will be doubled on the Day of Resurrection, and he will remain in it forever. Except for one who repents, believes and does righteous deeds: Allah will transform their evil deeds into good deeds. Allah is Forgiving and Merciful.” (Surah al-Furqan: verses 68–70)
A man informed Ibn Abbas (ra): I was in a relationship with a girl and committed with her the act Allah had forbidden for me. Then Allah gave me the opportunity to repent from it. Now I want to marry her. But some people say: “An adulterer marries none but an adulterous or polytheist woman.” Ibn Abbas said: That does not apply here. Marry her. If there is any sin in this, I will bear its burden. —Narrated by Ibn Abi Hatim.
Ibn Umar (ra) was asked: A man committed adultery with a woman. Should he marry her? He replied: If both repent and reform their character, then… Jابر ibn Abdullah gave a similar response. Ibn Jarir narrated that in Yemen a man’s sister committed adultery. She then wounded herself by striking a knife at the vein in her neck. People treated her and restored her to health. Her uncle later moved with his family to Madinah. There she learned the Qur’an and worshipped Allah, eventually becoming the most pious woman in that family. A marriage proposal then came for her. Her uncle did not wish to conceal her adultery, so he went to Umar (ra) and disclosed the whole matter. Umar (ra) said: If you disclose the girl’s past secret, I will punish you. When a righteous man proposes to you, marry her to him. According to another narration, Umar (ra) said: Do you want to expose the girl’s secret? Do you want to disclose what Allah has concealed? By Allah, if you tell anyone about her, I will punish you so severely that it will become an example for the entire country. Rather, marry her off as a chaste Muslim woman. Umar (ra) once said: I wish not to allow any chaste girl to marry a Muslim who has committed adultery. Upon hearing this, Ubayy ibn Ka’b said to him: Commander of the Believers, shirk is more serious than adultery, yet if someone repents from it, his repentance is accepted.”
According to Imam Ahmad, whether an adulterous woman’s repentance is genuine can be known by proposing adultery to her. If she accepts the proposal, her repentance is not genuine; if she rejects it, her repentance is genuine.
A similar view has also been narrated from Ibn Umar (ra). However, his disciples said: It is not permissible for a Muslim to invite a woman to adultery or entice her toward it, because such enticement is possible only in seclusion. Meeting a non-mahram woman in private is not permissible even for the purpose of teaching her the Qur’an. So how could it be permissible for inviting her to adultery? Moreover, if one invites her to adultery to test whether her repentance is genuine, there is a risk that she will accept and return to sin. Therefore taking such a risk is not permissible. Repentance provides forgiveness from all sins; its opportunity is open to everyone and applies to every command and prohibition. Imam Ahmad, Ibn Hazm, Ibn Taymiyyah and Ibn al-Qayyim all agree that an adulterous man or woman may not be married before repentance. Imam Ahmad, however, added another condition to repentance: completion of the waiting period. Whoever marries an adulterous woman before repentance and completion of the waiting period has a marriage that is invalid, and in that case the husband and wife must be separated.
Is the waiting period of such a woman three menstrual cycles or one menstrual cycle? Reports exist supporting both views. On the other hand, according to the Hanafi, Shafi’i and Maliki schools, marriage between an adulterous woman and an adulterous man is unconditionally permissible. In their view, adultery is not an impediment to the validity of marriage. Ibn Rushd said: The basis of this difference of opinion lies in understanding the meaning of this verse: “An adulterous woman shall be married by none but an adulterous or polytheist man. This has been forbidden to the believers.” Does this condemn the marriage of adulterers, or prohibit it? The difference concerns the answer to this question. Does “This has been forbidden to the believers” mean that adultery is prohibited or that marriage is prohibited? Most scholars hold that the verse alludes to and condemns the marriage of an adulterer but does not prohibit it. As evidence, they cite the following hadith: A man said to the Messenger (sa) about his wife: “If anyone touches her, she does not withdraw her hand.”
The Messenger (sa) said: “Divorce her.” He replied: “I love her.” He then said: “Then do not divorce her.”
[Imam Ahmad said: This hadith is not acceptable. Ibn al-Jawzi called it fabricated. Abu Ubayd said: This hadith contradicts the Qur’an and well-known hadiths, for Allah permitted marriage only to chaste women. When a husband accuses his wife of adultery, the verses concerning li’an (mutual cursing and separation) apply. The Messenger of Allah (sa) separated such couples by dissolving their marriage. Therefore these two spouses can never live together. In such circumstances, it is not credible that he would retain a wife who does not reject a man wishing to commit adultery with her. Ibn al-Qayyim said: This hadith is mutashabih, that is, obscure, and contradicts the clear prohibition concerning marriage to adulterous women.]
Moreover, those who ruled that marriage to adulterous women is valid differed over whether marriage during their waiting period is permissible. Imam Malik held that it is not permissible, out of respect for the husband’s semen and to prevent the mixing of legitimate and illegitimate offspring. Abu Hanifa and al-Shafi’i, however, held that she may be married even while pregnant, because the child in that pregnancy is not entitled to honor. According to one report, Abu Yusuf said that Abu Hanifa also held that marriage is not permissible until she gives birth, since it is improper for a husband’s fluid to irrigate another man’s crop. The Messenger of Allah (sa) even prohibited intercourse with a pregnant female captive before she gave birth, although both the woman and the child in her womb were slaves belonging to the master. Therefore, a woman who became pregnant through adultery must give birth before intercourse with her husband. Although the adulterer’s semen is not worthy of honor, the husband’s semen is. In such circumstances, how can mixing his semen with the adulterer’s semen be accepted? Regarding a woman made pregnant by another man who was captured in war and became the slave of a Muslim, the Messenger (sa) intended to curse the man who had intercourse with her, even though the child in her womb was separated from its father and was the slave of that Muslim. According to another report, Abu Hanifa held that marrying her is valid, but intercourse before she gives birth is not permissible. (Tahdhib al-Sunnah, volume 3)
The difference between the initial state and the continuing state: The scholars agree that if a legally married wife or husband commits adultery, the marriage is not annulled, because the initial state differs from the continuing state. It is narrated from al-Hasan and Jabir (ra) that if a married wife commits adultery, separation between husband and wife is obligatory. According to Imam Ahmad, separation is recommended. He said: I do not consider it appropriate to keep such a wife, for she cannot be trusted. She may corrupt the husband’s lineage and make him the father of a child that is not his.
8. It is haram to marry a wife with whom li’an has occurred:
It is not permissible for a man to remarry the wife with whom he has made a li’an (mutual cursing and accusation), because after li’an takes place, she becomes permanently haram for him. Allah says in verses 6–9 of Surah al-Nur:
وَالَّذِينَ يَرْمُونَ أَزْوَاجَهُمْ وَلَمْ يَكُن لَّهُمْ شُهَدَاء إِلَّا أَنْفُسُهُمْ فَشَهَادَةً أَحَدِهِمْ أَرْبَعُ شَمَاتِ بِاللَّهِ ، إِنَّهُ لَمِنَ الصَّدِقِينَ وَالْخَامِسَةُ أَنْ لَعْنَتَ اللَّهِ عَلَيْهِ إِنْ كَانَ مِنَ الْكُذِبِينَ وَيَدْرَوُا عَنْهَا الْعَذَابَ أَنْ تَشْمَدَ أَرْبَعَ شَمَاتِ بِاللَّهِ لَا إِنَّهُ لَمِنَ الْكَذِبِينَ وَالْخَامِسَةَ أَنْ غَضَبَ اللَّهِ عَلَيْهَا إِنْ كَانَ مِنَ الصَّدِقِينَ
Meaning: Those who accuse their wives of adultery and have no witnesses except themselves—the husband alone shall testify, swearing by Allah four times that his accusation is true. On the fifth time he shall say that Allah’s curse be upon him if he is lying. The wife’s punishment will be averted if she swears by Allah four times that he is lying, and on the fifth time says that Allah’s wrath be upon her if he is telling the truth.” (Surah al-Nur: verses 6–9)
9. Marrying a polytheist woman: The scholars agree that it is not permissible for a Muslim to marry an idolatrous, atheist, apostate, cow-worshipping, or woman who believes that everything is permissible. The evidence is this verse from Surah al-Baqarah: “Do not marry polytheist women until they believe. A believing slave woman is better than a polytheist woman, however attractive she may be to you. Do not give your women in marriage to polytheist men until they become Muslims. A Muslim slave is better than a polytheist, however pleasing he may be to you. They invite to Hell, while Allah invites, by His permission, to Paradise and forgiveness.” (Surah al-Baqarah: verse 221)
What was the occasion for the revelation of this verse? Regarding this: 1. Muqatil said: This verse was revealed concerning Abu Mursad al-Ghanawi. Some say it was revealed concerning Mursad ibn Abi Mursad Qannaz. The Messenger of Allah (sa) secretly sent him to Makkah to free a Companion held by the polytheists and bring him to Madinah. In Makkah, Mursad had a female companion from the Age of Ignorance whom he loved. Her name was Anaq. When Anaq learned of Mursad’s arrival, she came to him and again encouraged him to commit adultery as before. Mursad said: “That will not happen anymore. Islam has prohibited all the evil practices of the Age of Ignorance.” Anaq said: Then marry me. He said: Wait until I ask the Messenger of Allah (sa) for permission. He then went to the Messenger of Allah (sa) and asked permission. The Messenger of Allah (sa) prohibited him from marrying Anaq, because Mursad was a Muslim and Anaq was a polytheist. —Al-Jami’ li-Ahkam al-Qur’an, volume 3, p. 67.
Al-Suddi also narrated from Ibn Abbas (ra) that this verse was revealed concerning Abdullah ibn Rawahah. He had a black slave girl. In anger, he slapped her. He then became distressed and went to the Messenger (sa), informing him of the entire incident. The Messenger (sa) asked him: Abdullah, what is the girl like? He replied: O Messenger, she prays, fasts, performs ablution properly and testifies that there is no deity but Allah and that you are His Messenger. The Messenger (sa) said: Abdullah, she is indeed a believer. Abdullah said: By Allah, Who sent you with the true religion, I will certainly set her free and marry her. He then actually freed and married her. As a result, a group of Muslims began taunting him, saying that he had married a slave girl. They were eager to marry the daughters of polytheists and give their own daughters in marriage to them, because they favored noble lineage. Therefore Allah revealed this verse.
It is stated in al-Mughni: Apart from the People of the Book, marrying the daughters of all other unbelieving groups—such as idol worshippers, stone worshippers, tree worshippers and animal worshippers—and eating the meat of animals slaughtered by them are unanimously haram. A woman who leaves Islam is also haram for Muslims to marry, regardless of which religion she adopts.
10. The permissibility of marrying women from the People of the Book: It is permissible for Muslims to marry women from the People of the Book. For Allah, the Exalted, has said:
الْيَوْمَ أُحِلَّ لَكُمُ الطَّيِّبَتُ ، وَطَعَامُ الَّذِينَ أُوتُوا الْكِتَبَ حِلٌّ لَكُمْ من وَطَعَامُكُمْ حِلٌّ لهمز وَالْمُحْصَنَتُ مِنَ الْمُؤْمِنَاتِ وَالْمُحْصَنَتُ مِنَ الَّذِينَ أُوتُوا الْكِتَبَ مِنْ قَبْلِكُمْ إِذَا أَتَيْتُمُوهُنَّ أُجُورَهُنَّ مُحْصِنِينَ غَيْرَ مُسْفِعِينَ وَلَا مُتَّخِذِي أَخْدَانٍ ، وَمَنْ يَكْفُرُ بِالْأَيْمَانِ فَقَدْ حَبِطَ عَمَلَهُ : وَهُوَ فِي الْآخِرَةِ مِنَ الْخَسِرِينَ
Meaning: Today all pure things have been made lawful for you. The food of those who were given the Book is lawful for you, and your food is lawful for them. Chaste believing women and chaste women from those who were given the Book are lawful for you, provided that you give them their dower and marry them lawfully, seeking chastity, not fornication or secret liaisons. (Surah al-Ma’idah: 5)
Ibn al-Mundhir said: No reliable report has been found that any of the early scholars declared this unlawful. However, it is narrated concerning Ibn Umar (may Allah be pleased with him) that when he was asked about a Muslim marrying a Jewish or Christian woman, he would say: Allah has forbidden polytheist women to the believers. And if a woman says that her god is Jesus, or that some other servant of Allah is her god, I do not think there is any greater polytheism than this.
Imam al-Qurtubi said: The above statement of Ibn Umar (may Allah be pleased with him) contradicts the established view of the group of Companions whose opinions have been accepted as authoritative. For Uthman, Talhah, Ibn Abbas, Jabir and Hudhayfah, along with a group of the Companions and Followers, ruled that marrying women from the People of the Book is permissible. Among the Followers in this group were Sa’id ibn al-Musayyab, Sa’id ibn Jubayr, al-Hasan, Mujahid, Tawus, Ikrimah, al-Sha’bi, al-Dahhak and the jurists of the various regions. There is no contradiction or discrepancy between the verse prohibiting marriage to polytheist women and the above verse of Surah al-Ma’idah (verse 5). For, in its outward and literal sense, the word “polytheism” does not include the People of the Book. As Allah says:
لَمْ يَكُنِ الَّذِينَ كَفَرُوا مِنْ أَهْلِ الْكِتَبِ وَالْمُشْرِكِينَ مُنْفَكِّينَ حَتَّى تَأْتِيَهُمُ الْبَيِّنَةُ
“Those among the People of the Book and the polytheists who disbelieved (that is, rejected Muhammad, peace be upon him) would not desist from disbelief until the clear proof came to them.” Here, the polytheists and the People of the Book are expressed by two separate terms, and the two are joined by the conjunction “and” in “the People of the Book and the polytheists.” This clearly shows that they are not identical, but differ from one another. Uthman (may Allah be pleased with him) married a Christian woman named Na’ilah, who embraced Islam after entering his household. Hudhayfah (may Allah be pleased with him) also married a Jewish woman from Mada’in. When Jabir (may Allah be pleased with him) was asked whether it was permissible to marry Jewish and Christian women, he replied: During the period of conquest, while Sa’d ibn Abi Waqqas was our commander, we used to marry them.
However, marrying them is makruh: Although marrying Jewish and Christian women is permissible, it is makruh. For the husband may become excessively attached to her, and she may use this opportunity to convert him, or he may take the followers of her religion as friends. It cannot be stated with certainty that this will not happen. If the woman is a resident of a non-Muslim land, it is even more strongly makruh, because this would help increase the manpower of non-Muslims hostile to Islam and Muslims. According to some scholars, marrying a Jewish or Christian woman living in a land ruled by non-Muslims is haram. When Ibn Abbas (may Allah be pleased with him) was asked about this, he said: It is not permissible. Then he recited the following verse: (Surah al-Tawbah)
قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحَرِّمُونَ مَا حَرَّمَ اللَّهُ وَرَسُولَهُ وَلَا يَدِيَنُونَ دِينَ الْحَقِّ مِنَ الَّذِينَ أُوتُوا الْكِتَبَ حَتَّى يُعْطُوا الْعِزْيَةَ عَنْ بَلِ وَهُمْ صَغِرُونَ
“Fight those among the People of the Book who do not believe in Allah or the Last Day, do not deem unlawful what Allah and His Messenger have made unlawful, and do not follow the religion of truth, until they pay the jizyah by hand, in submission.”
Al-Qurtubi said: Ibrahim al-Nakha’i was deeply impressed when he heard this.
The rationale and significance of permitting marriage to Jewish and Christian women: Islam permitted marriage to them solely so that the distance between the People of the Book and Muslims might be removed. Marriage creates opportunities for interaction and social dealings between the two communities and increases closeness between their families. This creates an opportunity to learn Islam and to know and witness its principles, regulations and practical examples. It is one of the foremost methods of inviting the People of the Book and Muslims to closeness and nearness, and of calling them to the true religion and guidance. Therefore, a Muslim who wishes to marry a Jewish or Christian woman should marry her with the noble intention of using this closeness as a means of da’wah.
The difference between a polytheist woman and a woman from the People of the Book: Tafsir al-Manar, volume 2, pages 356–357, states: “A polytheist woman follows no religion that declares treachery unlawful, makes honesty and trustworthiness obligatory, commands her to do good and forbids her from evil. She depends entirely on the nature and character with which she was born, the education she received from her family, and the conduct to which she became accustomed. Her inherited and familial capital is nothing beyond the absurd notions of paganism and satanic promptings. These encourage her to betray her husband and corrupt her children’s beliefs. If the beauty that captivated him into marrying the polytheist woman continues to enchant him, it will help her sink more deeply into misguidance and lead her husband astray. But if his eyes grow weary of his wife’s facial beauty, and hatred and disgust for the filthiness of her beliefs become intense in his heart, then enjoying her physical beauty may become unbearable to him, and he may develop an intense aversion to this intolerable married life. Such a great contradiction does not arise between a woman of the Book and a Muslim man. For a woman of the Book also believes in Allah, worships Him, believes in the prophets and the recompense of the Hereafter, and respects the obligation to do good and the prohibition of evil. The fundamental difference between them is only belief or disbelief in the prophethood of Muhammad (peace be upon him). For one who generally believes in prophethood, the only reason for refraining from believing in the final Prophet is ignorance of the Shariah he brought. She does not know that, just as the other prophets brought a way of life, the final Prophet also brought a similar law. It contains further regulations required by the progress and advancement of the present age, and allows room for still more regulations to be added in the future beyond those currently found in it. Another reason for refraining from faith in the final Prophet is outward obstinacy and deliberate opposition to the truth despite inward conviction. This reason applies in very few cases; the first reason applies in most cases. In the company of her Muslim husband, his religion may appear to her more correct and just, and his Shariah comparatively better. As a result, she may have the opportunity to learn about the noble life of Muhammad (peace be upon him), the bearer of this great Islamic law, and about his miracles and signs. Her faith may thereby become complete and she may enter Islam. If the woman is truly righteous, she may thus receive a double reward.”
11. Marrying Sabian women: The Sabians are a community situated between fire-worshippers, Jews and Christians. They have no distinct religion. Mujahid said: They are a group from among the People of the Book. They recite the Book revealed to David (peace be upon him), the Zabur. Al-Hasan al-Basri said that they worship angels. Abd al-Rahman ibn Zayd said: They followed a religion and lived on the island of Mosul. They said only, “There is no deity but Allah.” They had neither a Book nor a prophet. They believed only in one God and believed in none of the prophets. For this reason, the polytheists would say to the Companions of the Messenger (peace be upon him): “They say, like the Sabians, that there is no deity except Allah.”
Al-Qurtubi said: What is known from the statements of various scholars is that they were monotheists, but believed in the influence and power of the stars. According to Imam al-Razi, they worship the stars—either in the sense that Allah made them a direction toward which they pray and worship, or in the sense that Allah entrusted them with the management and administration of the universe. For this reason, the jurists differed over the ruling on marrying women from this community. Some say that they possess a heavenly Book that has been distorted and altered, just as the Books of the Jews and Christians were distorted. Therefore, according to the verse of Surah al-Ma’idah, “Today all pure foods have been made lawful for you,” marrying them is permissible. This is the view of Imam Abu Hanifah and his two disciples. Some jurists, unable to ascertain the true identity of this community, said: “If, in the fundamentals of Islam, they agree with the Jews and Christians—that is, they accept the messengers and believe in the Books—then they belong to their group. If they oppose them in fundamentals, they are not counted among them; rather, they are considered polytheists.” This is likewise the view of the Shafi’i and Hanbali schools.
12. Marrying fire-worshipping women: Ibn al-Mundhir said: It is not unanimously agreed that marrying fire-worshippers and eating animals slaughtered by them is prohibited, although it is prohibited according to the majority. For they have no heavenly Book and believe in no prophethood; they worship fire. Imam al-Shafi’i narrated that Umar (may Allah be pleased with him) said regarding fire-worshippers: “I have heard how we should deal with them, but I do not understand.” Abd al-Rahman ibn Awf said: “I heard the Messenger of Allah (peace be upon him) say: Treat them like the People of the Book. That is, grant them protection for their lives and permit them to reside upon payment of the jizyah.” This proves that they are not People of the Book. Ahmad was asked whether it was true that fire-worshippers had a heavenly Book. He said: This is a false statement. He said this very emphatically. According to Abu Thawr, it is permissible to marry a fire-worshipping woman, because they are permitted to pay the jizyah like Jews and Christians.
13. Marriage to adherents of Books other than Jews and Christians: According to the Hanafis, it is permissible to marry followers of any religion originating from Allah and adherents of any heavenly Book, such as the scriptures of Ibrahim (peace be upon him), the scriptures of Seth (peace be upon him), and the Zabur of David (peace be upon him), and to eat the meat of animals slaughtered by them, provided they are not polytheists. A group within the Hanbali school holds the same view, because they adhere to one of Allah’s Books and thus resemble the Jews and Christians. On the other hand, according to the Shafi’i school and one group within the Hanbali school, marriage to them is not permissible, nor is it permissible to eat animals slaughtered by them. For Allah, the Exalted, has said:
أَنْ تَقُولُوا إِنَّمَا أُنزِلَ الْكِتَبَ عَلَى طَائِفَتَيْنِ مِنْ قَبْلِنَا
“Lest you should say: The Book was revealed only to two communities before us …”
They also argue that those ancient scriptures consisted only of exhortations, examples and principles. They contained no legal regulations. Therefore, those scriptures are not equivalent to books containing legal codes, such as the Torah and the Gospel. They are not equivalent.
14. A Muslim woman marrying a non-Muslim man: The unanimous view of the scholars is that a Muslim woman’s marriage to a non-Muslim man is invalid, whether the man is a polytheist or from the People of the Book. The proof is Allah’s statement:
يَأَيُّهَا الَّذِينَ آمَنُوا إِذَا جَاءَكُمُ الْمُؤْمِنْتُ مُهْجِرَت فَاسْتَعِنُوهُنَّ ، اللَّهُ أَعْلَمُ بِإِيْمَانِهِنَّ فَإِنْ عَلِمْتُمُوهُنَّ مُؤْمِنَت فَلَا تَرْجِعُوهُنَّ إِلَى الْكُفَّارِ ، لَاهُنَّ حِلٌّ لَهُمْ وَلَا هُمْ يَحِلُّونَ لَهُنَّ
Meaning: O believers, when believing women come to you as emigrants, examine them. Allah knows their faith best. If you ascertain that they are believers, do not send them back to the disbelievers. They are not lawful for the disbelievers, nor are the disbelievers lawful for them. (Surah al-Mumtahanah: 10)
This verse makes it unequivocally clear that believing women may not marry disbelieving men. Here, examining them means asking about the reason and purpose of their migration and confirming whether they came out of love for Allah and His Messenger and with the intention of living according to the rulings of Islam. If that was their purpose, their statement must be accepted and they may not be sent back.
The rationale for this ruling is that a husband has authority over his wife, and it is obligatory for her to obey whatever lawful commands he gives. In this regard, he has guardian-like and governing authority over her. Yet no disbeliever has authority or governing power over a Muslim man or woman. Allah, the Exalted, has said:
وَلَنْ يَجْعَلَ اللَّهُ لِلْكَفِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلاً
“Allah will never grant the disbelievers a way over the believers.” (Al-Nisa’: 141)
Moreover, a non-Muslim husband does not recognize the religion of his Muslim wife; rather, he rejects her Book and the prophethood of her Prophet. No married life can remain stable, nor can any coexistence endure, amid such profound disagreement and fierce division. Conversely, when a Muslim man marries a woman of the Book (Jewish or Christian), he recognizes her religion, because he knows that faith in her Book and her Prophet is part of his own faith, without which his faith cannot be complete.
15. Marrying more than four women is haram: It is haram for a man to take more than four women as wives at one time. Four are sufficient. Allah has made mutual good treatment and justice obligatory to keep married life sound and comfortable, but this cannot be observed when more than four wives are taken. The proof is Allah’s following statement:
وَإِنْ خِفْتُمْ أَلَّا تُقْسِطُوا فِي الْيَتَامَى فَانْكِحُوا مَا طَابَ لَكُرُ مِنَ النِّسَاءِ، مَثْنَى وَثَلَاثَ وَرُبَاعَ، فَإِنْ خِفْتُمْ أَلا تَعْدِلُوا فَوَاحِدَةً أَوْ مَا مَلَكَتْ أَيْمَنُكُمْ ذَلِكَ أَلَّا تَعُولُوا
Meaning: If you fear that you will not deal fairly with orphan girls, then marry other women of your choice—two, three or four. But if you fear that you will not be just, then marry only one, or those whom your right hands possess. That is more likely to prevent you from committing injustice. (Surah al-Nisa’: 3)
In other words, if you strongly believe that you will be unable to treat an orphan girl justly if you marry her, then marry women other than orphans. The phrase “if you fear” does not actually impose a condition here. For the unanimous view of Muslims is that marrying up to four women is permissible in either case, whether or not there is fear of failing to deal fairly with orphans.
The reason for the revelation of the verse: Al-Bukhari, Abu Dawud, al-Nasa’i and al-Tirmidhi narrated from Urwah ibn al-Zubayr (may Allah be pleased with him): “If you fear that you will not deal fairly with the orphans …” Urwah asked Aishah (may Allah be pleased with her) about this verse. Aishah replied: My nephew, this refers to an orphan girl who is raised under the care of her guardian. Her wealth is mixed with her guardian’s wealth. Eventually, her guardian becomes interested in marrying her because of her wealth and beauty, but does not wish to give her the dowry she deserves according to the requirement of justice; he wants to give her the dowry he would give any other man. Therefore, guardians were forbidden to marry orphan girls unless they could treat them fairly and give them a higher dowry. They were instructed instead to marry ordinary women. Aishah (may Allah be pleased with her) said: After this verse was revealed, people asked the Messenger of Allah (peace be upon him) about them. In response, the following verse was revealed:
وَيَسْتَفْتُونَكَ فِي النِّسَاءِ ط قُلِ اللَّهُ يُفْتِيكُمْ فِيهِنَّ لَا وَمَا يُتْلَى عَلَيْكُمْ فِي الْكِتَبِ فِي يَتَمَى النِّسَاءِ الَّتِي لَا تُؤْتُونَهُنَّ مَا كُتِبَ لَهُنَّ وَتَرْغَبُونَ أَنْ تَنْكِحُوهُنَّ
Meaning: They ask you for a ruling concerning women. Say: Allah gives you a ruling concerning them, and reminds you of what has already been recited to you in the Book concerning orphan girls to whom you do not give what has been prescribed for them, while you wish to marry them … (Surah al-Nisa’: 127)
Aishah (may Allah be pleased with her) said: Allah’s statement, “what has already been recited to you in the Book,” refers to the preceding verse, in which Allah said: “If you fear that you will not deal fairly with orphan girls, then marry the women of your choice …”
They were forbidden to marry only those orphan girls whose status and beauty attracted men. They were commanded to act justly in this matter and to show interest also in those orphan girls who were less favored in wealth and beauty.
Thus, the meaning of the verse is that Allah, the Exalted, addressed the guardians of orphans, saying: When an orphan girl is raised in your care, remains under your guardianship, and you are unwilling to give her even a fair customary dowry, then marry ordinary women instead of these orphan girls. They are numerous, and Allah has placed no restriction in this matter; rather, He has permitted taking from one to four wives. If you fear that you will be unable to deal justly when marrying more than one, then you should be content with one wife, or, if you have a slave woman, be content with her.
The significance of limiting the number to four wives:
Imam al-Shafi’i said: The Sunnah of the Messenger (peace be upon him), received from Almighty Allah, is that no one besides the Messenger of Allah (peace be upon him) may take more than four wives at one time. The scholars have reached consensus on Imam al-Shafi’i’s view. Only one Shi’i group holds that taking more than four wives at once is permissible. Some of them even believe that one may take as many wives simultaneously as one wishes. Some of them favor the view that, like the Messenger of Allah (peace be upon him), one may take from four to nine wives at once.
In response to this question, Imam al-Qurtubi said: The Qur’anic statement, “Marry two, three or four,” does not indicate the permissibility of taking nine wives at once. Those who say that it does have not correctly understood the Qur’an and Sunnah. Moreover, they have disregarded the practice followed by the early leaders of the Muslim Ummah. They assumed that the Arabic conjunction waw, meaning “and,” is used here in the sense of addition (that is, 2 + 3 + 4 = 9). Furthermore, relying on the example of the Messenger (peace be upon him) taking nine wives at once, they constructed this interpretation and adopted the view. Its proponents are the Rafidah and a faction of the Rafidah. Some among the Zahiri group adopted an even worse view. They said that mathna means two plus two, thulath means three plus three, and rubaa means four plus four, with waw used in the sense of addition. Thus, according to them, taking eighteen wives at once is permissible (2 + 2 + 3 + 3 + 4 + 4 = 18). The basis of this erroneous view is ignorance of the Arabic language and Sunnah and opposition to the consensus of the entire Ummah. For it has never been heard of any Companion or Follower that he took more than four wives at once.
Imam Malik narrated in the Muwatta, and al-Nasa’i and al-Daraqutni also narrated: When Ghaylan ibn Umayyah al-Thaqafi embraced Islam, he had ten wives. The Messenger of Allah (peace be upon him) told him: “Choose four of them and divorce all the rest.”
It is narrated from al-Harith ibn Qays in Abu Dawud. He said: “When I embraced Islam, I had eight wives. When I informed the Messenger (peace be upon him) of this, he said: ‘Choose four of them.’”
Muqatil said: Qays ibn al-Harith had eight noble wives. When this verse was revealed, the Messenger of Allah (peace be upon him) ordered him to divorce four and retain four. According to Abu Dawud, this man was not Qays ibn al-Harith, but al-Harith ibn Qays al-Asadi.
It should be noted that the permission Allah granted the Messenger of Allah (peace be upon him) to retain more than four wives was a unique distinction of his.
Justice among wives is obligatory: Allah permitted plural marriage but limited the number to four. He made it obligatory to maintain fairness among them in food, accommodation, clothing, overnight stays and all other material matters, and not to discriminate between the rich and poor or the noble and ordinary. If someone fears that he will be unable to treat all his wives fairly and give each her rights, then it is haram for him to take multiple wives. If he can fulfill the rights of three but not those of a fourth, it is haram for him to take a fourth wife. Similarly, if a man believes he may wrong a second wife, it is haram for him to take a second wife. For Allah has said: “You may marry two, three or four wives. But if you fear that you will not deal justly, then marry only one, or be content with a slave woman. That is the way nearest to justice.”
Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace be upon him) said: “If a man has two wives and inclines toward one of them, he will come on the Day of Resurrection with one side of his body leaning.” Abu Dawud, al-Tirmidhi, al-Nasa’i, Ibn Majah.
Someone might think that, on the one hand, Allah revealed a ruling in this verse making justice among wives obligatory, while on the other hand He said in another verse of Surah al-Nisa’ that people can never deal justly. Thus, there appears to be a contradiction between the two verses. In fact, this assumption is incorrect. The other verse is:
وَلَنْ تَسْتَطِيعُوا أَنْ تَعْدِلُوا بَيْنَ النِّسَاءِ وَلَوْ حَرَمْتُمْ فَلَا تَمِيلُوا كُلِّ الْمَيْلِ فَتَذَرُواهَا كَالْمُعَلِّقَةِ
Meaning: You will never be able to deal equally justly with your wives, even if you strive to do so. Therefore, do not incline completely toward one of them, leaving the other suspended.” (Surah al-Nisa: Verse 129)
In fact, the justice that has been commanded is outward justice, which lies within human capacity. Justice in affection and love has not been commanded, because no one is capable of it. The statement in the aforementioned verse, “You will never be able to deal equally justly among your wives,” refers to justice in affection, love, and sexual relations. Muhammad ibn Sirin said: “When I asked Ubaydah about this verse, he said: ‘That refers to justice in love and sexual relations.’” Abu Bakr ibn al-Arabi said: “This is correct, because no one is capable of equality and justice in love. Every person’s heart lies between two fingers of Allah, and He turns it as He wills. The same applies to sexual relations. A man may feel as much sexual desire toward one woman as he does not feel toward another. Since this is not intentional on his part, he cannot be held accountable for it, because it is beyond his capacity. Therefore, no one may be blamed for it. Aishah (may Allah be pleased with her) said: The Messenger of Allah (peace and blessings be upon him) would distribute everything equally among his wives and say:
اللَّهُمَّ هَذَا قَسْمِي فِيهَا أَمْلِكُ، فَلَا تَلْمْنِي فِيْمَا تَمْلِكُ وَلَا أَمْلِكُ
“O Allah, this is my division concerning what I control, so do not blame me for what You control and I do not control.”
Abu Dawud said: “What I do not have the ability to deal with justly” refers to the heart. Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah.
Al-Khattabi said: This hadith makes equal division obligatory among free co-wives. It is disliked, however, to incline toward one of them in social relations in a manner that causes another’s rights to be neglected. Inclination and attraction of the heart are not blameworthy, because the heart is not under anyone’s control. For this reason, the Messenger of Allah (peace and blessings be upon him) distributed everything equally among his wives and said: “O Allah, I have the ability to divide equally in this matter, and I have divided equally here…” It was concerning this that the verse of Surah al-Nisa was revealed: “You will never be able to deal equally justly among your wives…”
When a husband travels, he may take whichever wife he wishes with him. However, it is preferable to select one of them by drawing lots. Any wife may relinquish her right and make a sacrifice; that is entirely her own prerogative. She may give her allotted share to another. Aishah (may Allah be pleased with her) reported: “Whenever the Messenger of Allah (peace and blessings be upon him) intended to travel, he would draw lots among his wives. He would take with him the one whose name was drawn. He would allot each wife her appointed days. Only Sawdah bint Zam‘ah gave her day to Aishah (may Allah be pleased with her).”
Al-Khattabi said: This hadith establishes that drawing lots concerning rights is sanctioned by Islamic law. It also establishes that both day and night may be included in the division. Likewise, both conjugal companionship and property-related rights may be given to another co-wife. Most scholars agree that if a wife travels with her husband after being selected by lot, the days of that journey are not owed to the other co-wives, nor are the days during which they were deprived of their husband’s company during his absence counted against them. Some scholars hold that those days must be counted and that the husband must compensate the remaining wives by making up the days they were deprived of his company, thereby ensuring equality. The first view, however, is preferable, since most scholars agree upon it. Additional support for it is that the wife accompanying him bears the hardships of travel, and it is for this reason that she is given those additional days. Those who remain at home do not endure that hardship. Therefore, treating her as equal to the other wives in this matter would deprive her of justice.
A wife has the right to stipulate that he will not take another wife:
Just as Islam has permitted a husband who is capable of justice to marry up to four wives, it has also given the wife, or her guardian, the right to stipulate that he will not take another wife. If such a condition is imposed upon the husband in the marriage contract, it is valid and must be fulfilled. If the husband fails to fulfill it, the wife has the right to dissolve the marriage. This right to dissolve the marriage will not lapse unless she herself waives it and agrees to the husband’s violation of the condition. This is also the opinion of Imam Ahmad, and Ibn Taymiyyah and Ibn al-Qayyim preferred this view. Conditions in marriage are more consequential than conditions in transactions such as buying, selling, and leasing. Therefore, fulfilling conditions is even more important and obligatory in marriage.
They presented the following proofs in support of their view:
1. Al-Bukhari and Muslim narrated that the Messenger of Allah (peace and blessings be upon him) said: “The conditions that you have made lawful for yourselves through intercourse with your wives are the conditions most deserving of fulfillment.”
2. Al-Bukhari and Muslim narrated from Abdullah ibn Abi Mulaykah that al-Miswar ibn Makhramah told him that he heard the Messenger of Allah (peace and blessings be upon him) say from the pulpit: “Banu Hashim have asked me for permission to marry their daughter to Ali ibn Abi Talib. I do not give them permission. Again, I say, I do not give them permission. Again, I say, I do not give them permission—unless Ali wishes to divorce my daughter and marry their daughter. For Fatimah is a part of me. Whatever causes her doubt causes me doubt, and whatever hurts her hurts me.” Another narration states: “Fatimah is a part of me. I fear that she may be put to trial regarding her religion”—that is, if the daughter of Banu Hashim became her co-wife, she would cause her much distress, preventing Fatimah from properly fulfilling her religious duties. Then he mentioned one of his sons-in-law from Banu Abd Shams and praised him highly regarding his marital relationship with him. He said: “He fulfilled what he promised me and was truthful in what he said. I do not declare lawful things unlawful, nor do I declare unlawful things lawful. But, by Allah, the daughter of the Messenger of Allah and the daughter of the enemy of Allah—that is, the daughter of Abu Jahl—can never be united in one household.”
Ibn al-Qayyim said: Several matters are known from this ruling. When a husband marries a wife on the condition that he will not marry anyone else during her lifetime, he must fulfill that condition. If he marries during her lifetime, she has the right to dissolve the marriage. This is because the Messenger (peace and blessings be upon him) stated that if Ali married another woman while Fatimah was alive, it would subject Fatimah to doubt, distress, and anguish, and Fatimah’s distress would cause distress to the Messenger himself. It is certainly known that Ali married Fatimah on the condition that he would not cause Fatimah or her father any harm and would not create any doubt in their hearts, even though this condition was not explicitly mentioned in the wording of the contract. Nevertheless, it was certainly known to everyone that this condition had been imposed.
By mentioning his other son-in-law and praising him as truthful and faithful to his promises, the Messenger (peace and blessings be upon him) indirectly encouraged Ali (may Allah be pleased with him) to emulate him. This also indicates that Ali had promised him that he would not cause Fatimah distress or create doubt in her heart. He encouraged Ali to fulfill this promise, as the other son-in-law had done. This shows that a condition established by custom and convention has the same status as a condition explicitly stated in words. If it is not fulfilled, the party who imposed it may dissolve the relevant contract. Suppose that in a society it is customary not to allow women to leave their homes and never to allow a husband to take his wife away from her family home, and this custom continues. It is then treated like a stated or written condition. Indeed, this accords with the customs of the people of Madinah. Imam Ahmad’s principle is that a customary condition has the same status as a stated or written condition. Thus, if clothes are given to a washerman who customarily works for wages, or flour for bread or ingredients to a cook who customarily works for wages, or clothes are given at a bathhouse to someone whose practice is to work for payment, he must be paid the customary wage even if no wage was stipulated. Likewise, if a girl is taken in marriage from a family whose daughters are never given a co-wife by their husbands, are not even given that possibility, and this is their established custom, it is treated as an imposed condition.
Therefore, the woman who is the leader of all the women of the world and the daughter of the leader of all humanity is more entitled to this right than any other woman. If Ali (may Allah be pleased with him) had mentioned it as a condition in the wording of the contract, he would not have established Fatimah’s right by doing so; he would merely have reinforced and strengthened it. There is also a highly compelling reason why Ali (may Allah be pleased with him) was prevented from having Fatimah and the daughter of Abu Jahl together in one household. Generally, a wife follows her husband in status. If the wife herself is of high status and the husband is likewise, she possesses high status both through her own qualities and through her husband’s qualities. This was Fatimah’s situation. Allah did not wish the daughter of Abu Jahl to be made equal in status with Fatimah, whether by her own qualities or through her husband. The enormous difference between them was well known. Thus, it was in no way acceptable for her to become the co-wife of the leader of all the women of the world. The Messenger of Allah (peace and blessings be upon him) alluded to this decisive truth when he said: “By Allah, the daughter of the Messenger of Allah and the daughter of the enemy of Allah can never live together in one household.”
The opinions of the jurists concerning women’s right to impose such conditions have already been mentioned.
The rationale for plural marriage: One. Allah’s granting people permission to marry more than one wife is a special mercy and generosity toward humanity. He has limited this permission to four. A man may marry more than one wife at the same time, provided that he is capable of establishing justice among them with regard to maintenance and spending the nights with them. If he fears that he will be unable to deal justly and fulfill his responsibilities, it is forbidden for him to take multiple wives. Indeed, if he is unable to fulfill the rights of one wife, marriage itself remains forbidden for him until he becomes capable of marrying.
However, plural marriage is neither obligatory nor recommended; it is merely permissible. For the Lawgiver cannot overlook it in view of the unavoidable needs of society and civilization and the demands of reform.
Two. Islam has a higher human fellowship or objective, whose realization and dissemination among all levels of people have been entrusted to Muslims. They can realize this objective only when they possess a powerful state equipped with sufficient means and resources. These include defense forces, knowledge and science, industry, agriculture, and commerce, upon which the existence and stability of the state depend, and without which it cannot maintain its independence, sovereignty, strength, power, or ability to implement state policy. These essential means and resources cannot be acquired without an abundance of manpower. A vast supply of human resources is indispensable to ensure sufficient personnel in every sphere of human activity. That is why it is said that honor and prestige first require an abundance of manpower and wealth. The only means of ensuring this abundance is early marriage and plural marriage. Modern developed countries have recognized the importance of a large population and the enormous contribution and benefits it provides in production, warfare, and the expansion of influence. For this reason, they have adopted measures to increase the population by encouraging marriage and compensating citizens for increasing the number of their children, thereby ensuring the state’s overall strength and defensive capacity.
The German traveler Paul Schmid, recognizing the breadth of Muslims’ reproductive capacity, described it as one of the sources of their strength. In his book Islam: The World Power of Tomorrow, published in 1936, he said: “The sources of strength in the Muslim-dominated East lie in three elements:
1. The power of Islam as a religion, faith in it, its practical example, and its unparalleled ability to establish brotherhood among different peoples, races, and cultures.
2. The abundant natural resources in the vast Muslim-populated region extending from the Atlantic coast near Morocco’s borders in the west to the Pacific coast near the Indonesian borders in the east. If Muslims draw close to one another and cooperate, these diverse natural resources can create a powerful and perfectly integrated economic unit and produce such prosperous self-sufficiency that Muslims will not be dependent in the least on Europe or elsewhere.
3. Finally, referring to the third element, he said: “The abundant reproductive ‘capacity’ of Muslims has transformed their manpower into a steadily growing power.” He then said: “When these three powers are united, Muslims will unite as brothers on the basis of one creed and one faith. They will be inspired by the principle of the oneness of the one Allah, and when their natural resources meet the needs of their growing population, Islamic power will assume such a formidable form that it will threaten all of Europe with destruction and gain the ability to control the entire world from a region that is the center of the whole world.”
Not merely by citing government statistics, but also by referring to the history of the Muslims and their organized campaigns throughout the ages to deliver a crushing response to attacks and aggression by their enemies, he presented the following proposal after detailing the three elements and the invincible strength of Islamic creed and faith that he had discovered in Muslim history: “All the governments and peoples of the Christian West should unite and, in a different form and in a manner suited to the age, yet by highly effective means and decisively, launch the Crusades again.” (Translated from French into Arabic by Professor Dr. Muhammad al-Bahi.)
Three. The Islamic state is often faced with the threat of war. As a result, it loses many people. It is the state’s responsibility to provide proper care and support for the widows of these martyrs. The only way to fulfill this responsibility properly is to marry them off. Those who are lost can be replaced only through population growth, and one means of increasing the population is plural marriage.
Four. Sometimes the number of women in a nation may exceed the number of men. This generally occurs after wars. Indeed, even in peacetime, women may outnumber men in most nations. The likely reason is that men, being obliged to perform extremely strenuous labor, have a lower average life expectancy than women.
This increase in the number of women makes plural marriage necessary, both to support the additional women and to protect their chastity. Otherwise, they will be driven into deviation and adultery, causing society to become diseased and morally corrupt. Alternatively, they will be forced to spend their lives enduring the hardship of widowhood and the pain of deprivation. This will expose them to nervous disorders and destroy a human resource that could have become a source of strength and contributed additional strength to the nation.
Some countries where women have come to outnumber men have been compelled to permit plural marriage. Although it conflicts with their beliefs and customary traditions, they have found no better solution.
Dr. Muhammad Yusuf Musa said: “I remember that in 1948, while I and several Egyptian brothers were in Paris, we were invited to attend the World Youth Conference held in Munich, Germany. One of my Egyptian colleagues and I had the opportunity to attend a workshop discussing the problem caused by the number of women in postwar Germany becoming several times greater than the number of men. The workshop aimed to devise a suitable solution to this problem. After reviewing and rejecting all the solutions proposed there, my colleague and I presented its only natural solution: permitting plural marriage and increasing reproduction. At first, the view we presented was placed on the agenda with some surprise and reluctance. But after careful examination, the discussants saw that there was no other solution to the problem. As a result, it was included among the resolutions adopted by the World Youth Conference. When I returned home in 1949, I was very pleased to learn that an Egyptian newspaper had reported that the residents of Bonn, the capital of West Germany at the time, were demanding that plural marriage be permitted in the constitution.”
Five. Men have greater reproductive capacity than women. From the onset of puberty until the later stages of life, a man is capable of sexual intercourse. A woman, however, is not capable of intercourse for about ten days each month during menstruation, for approximately forty days including childbirth and the postpartum period, and in certain circumstances during pregnancy and breastfeeding. A woman’s ability to bear children ends between the ages of forty-five and fifty, whereas a man may still be capable of fathering children after the age of sixty. It is extremely important to consider these circumstances and devise a peaceful solution to them. When a wife is unable to fulfill her marital responsibilities under these circumstances, what should the husband do? Is it not better for him to take an additional wife who will help him preserve the chastity of his private parts and the purity of his character, rather than take a mistress whose relationship with him is limited to an animal-like physical connection? It is also necessary to consider that Islam has prohibited adultery in the strongest terms, as Allah says:
وَلَا تَقْرَبُوا الزِّنِّي إِنَّهُ كَانَ فَاحِشَةً طَ وَسَاءَ سَبِيلاه
“Do not even approach adultery. Indeed, it is an obscenity and an evil way.”
Not only that; He has announced a deterrent and severe punishment for anyone who engages in this vile act. Allah says:
الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِنْهُمَا مِائَةَ جَلْدَةٍ وَلَا تَأْخُذُ كُمْ بِهِمَا رَأْفَةٌ فِي دِينِ اللهِ اِنْ كُنْتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِج وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِّنَ الْمُؤْمِنِينَ
Meaning: “The woman and man guilty of adultery—flog each of them with one hundred lashes. Do not let compassion for them make you lenient in carrying out Allah’s religion, if you believe in Allah and the Last Day. And let a group of believers witness their punishment.” (Surah al-Nur: Verse 2)
Six. A wife may be barren and unable to bear children, or she may suffer from an illness from which recovery is not expected. Despite this, she may wish to preserve the marital relationship. On the other hand, the husband may desire children while also wishing to retain a wife who is capable of managing the household. In such a situation, is it appropriate for the husband to accept this difficult condition and remain content with the companionship of a sick, barren wife, without marrying another woman who is capable of bearing children, providing companionship, and managing the household? Should he bear all the resulting losses alone? Or is it appropriate to divorce the barren and sick wife, even though she wishes to remain in the marriage, thereby casting her into greater grief and suffering? Rather, would it not be better to reconcile the wife’s wishes and interests with those of the husband by marrying another woman, while maintaining the marital relationship with the existing wife, thus securing the welfare of both the husband and his wife? I believe the last solution is the most correct, just, and acceptable. It is impossible for any conscious, sensible, and compassionate person not to accept and be satisfied with this solution.
Seven. Because of particular physical and psychological dispositions, some men are excessively sexual. Thus, one wife may not satisfy them, especially in certain predominantly hot regions. In such cases, they have been permitted to take multiple wives in order to fulfill their sexual needs through a lawful and legitimate means, rather than taking a character-destroying mistress or girlfriend.
Eight. These are some of the general and specific reasons recognized by Islam. Islam does not legislate for a particular age or generation; rather, it legislates for all humanity and for the period extending until the Day of Resurrection. Therefore, place, time, and individual benefits and harms must all be taken into consideration. Ensuring the welfare of the Muslim ummah by increasing the population of Muslims and preparing sufficient manpower for both times of war and peace is one of the most important objectives of the Islamic Lawgiver.
Nine. Because this law is followed in the Muslim world, it remains pure and free from many social and moral defects. In other societies, however, the denial of plural marriage has caused social and moral corruption to spread widely.
The moral corruptions found in societies that declare plural marriage unlawful are as follows:
1. Adultery has become so widespread that the number of adulterous women has exceeded the number of married women.
2. As a result, the number of illegitimate children has also increased. In some places, illegitimate children constitute more than fifty percent of the total population.
More than two hundred thousand illegitimate children are born every year in the United States. In August 1959, the newspaper Ash-Shaab (The People) published the following report:
“A new storm of discussion is raging over the gravity of America’s moral decline, reflected in the abnormal increase in the number of illegitimate children born in the United States. Anger is also being expressed over the enormous tax burden American taxpayers must bear to meet the expenses of this vast army of illegitimate children. There is nothing surprising about this anger, for two hundred thousand illegitimate children are being born there every year. To address this problem, official circles in some countries have begun considering whether women who have completely turned away from religious principles should be sterilized. Elsewhere, arguments are raging over proposals to reduce government assistance to mothers of several illegitimate children. The United States departments of health, education, and social welfare have stated that American taxpayers will pay 210 million dollars in taxes this year to cover the expenses of illegitimate children, amounting to 27 dollars and 29 cents per child per month. Government statistics show that the number of illegitimate children was 87,900 in 1938 and had risen to 201,700 by 1957. According to the Department of Social Welfare, the number of these children reached 250,000 in 1958. Experts, however, believe that the actual number is much higher. The latest statistics indicate that the rate of such illegitimate children has tripled per thousand over the most recent two generations. This is an increase that causes alarm among teenage girls. Social scientists have reported another fact: aristocratic families generally conceal the matter when one of their daughters becomes pregnant illegitimately and quietly send the newborn to a family that will adopt it.”
3. These abhorrent physical relations are causing various diseases, psychological complications, and nervous disorders.
4. Body and mind are becoming victims of weakness and exhaustion.
5. The bond between husband and wife is weakening, married life is being afflicted by disputes and quarrels, and family ties are being severed. Consequently, it retains no dignity.
6. True lineage is becoming so distorted that no husband can say with certainty that the children he is raising are his own biological children.
These distortions and disasters are nothing but the natural consequences of conduct contrary to innate disposition and of violating Allah’s commands. This most conclusively proves that the Islamic way of life is the safest way of life, and that its law is the most balanced law for human beings who walk upon the earth—not for angels who move through the heavens.
Finally, I shall bring this discussion to a close by quoting Alphonse Étienne Dinet’s questions and answers. He raises the question:
“Will abolishing polygamy produce any moral benefit?” He then answers it himself: “This cannot be stated with certainty. Adultery and prostitution, whose existence is currently rare in most Muslim countries, will one day spread widely throughout those countries, and their destructive consequences will become evident. Moreover, the disease known as female celibacy will become widespread in Muslim countries, and its harmful consequences will emerge in those countries in which polygamy is abolished. It has already appeared there at an alarming rate, particularly in the postwar era.
Restricting or prohibiting polygamy: Using the failure to properly implement Islamic law and the failure to follow Islamic teachings as a pretext, advocates of prohibiting polygamy have sought to restrict it and to prohibit a husband from taking another wife until a judge or the relevant authority has reviewed his circumstances and financial means and granted him permission to marry again. For family life is extremely expensive. Thus, if the number of family members increases through polygamy, the husband’s responsibilities will increase and he will be unable to support them. He will be unable to provide the education and training needed to raise them as upright people, or the education and training needed to equip them to earn the livelihood required for their living expenses. As a result, ignorance and illiteracy will become widespread, unemployment will increase, many members of the Muslim ummah will be forced to leave their homes for elsewhere, and crime and corruption will spread among the younger generation.
Moreover, nowadays no man marries more than one wife for any purpose other than greed for money or the satisfaction of sexual desire. Therefore, he does not investigate whether there is any justification for polygamy or any benefit in it. Rather, he often violates the rights and interests of his previous wife, harms her children, and deprives them of inheritance. As a result, the fire of mutual hostility and vengeance is kindled among the children of co-wives; that fire of vengeance spreads among the families, causing hostility to intensify. Each wife becomes eager to take revenge on the other, and these minor disputes grow larger and sometimes even lead to murder. In this way, the harmful aspects of polygamy are highlighted and arguments and evidence are presented for limiting the number of marriages.
In response, we wish to say: Making unlawful what Allah has made lawful is not the solution to this problem. The solution must be sought through education and training and by teaching people the rulings of Islam. Allah has also made food and drink lawful for people, but on the condition that they do not transgress. If someone becomes afflicted with disease through extravagance and waste in eating and drinking, food and drink will not be responsible; responsibility will lie with excess and extravagance in eating and drinking. Such problems cannot be solved by prohibiting food and drink. They can be solved only by teaching rules and morality, which will be followed to avoid harm. Although advocates of prohibiting polygamy without a judge’s permission present the actual harms resulting from polygamy as evidence, they either do not know, or pretend not to know, that prohibiting it will inevitably produce greater harm. In reality, the harm of prohibiting polygamy is far greater than the harm of permitting it. Therefore, it is necessary to accept the lesser harm in order to protect oneself from the greater harm. For the principle is that, when faced with two harms, the lesser one must be accepted. Where harm cannot be controlled, the matter should preferably be entrusted to the judge’s control, since there is no flawless standard for knowing people’s circumstances. At times, moreover, the harm of preventing polygamy is closer than its benefit. Muslims have been accustomed to polygamy from ancient times until the present. It has never been heard that any of them attempted to prohibit or restrict polygamy in the way now being proposed. Therefore, we too should accept and uphold the practice that they accepted and maintained. It is not fitting for us to constrict Allah’s vast mercy. Nor should we try to find fault with a law whose excellent qualities have been testified to not only by our friends but also by our enemies.
The background of polygamy: In fact, the practice of polygamy was widespread among numerous nations before the advent of Islam. Among them were the Jews, the Arabs of the Age of Ignorance, the Sicilian peoples, and the Sabaeans. Most of the inhabitants of the following countries belonged to these peoples:
Russia, Lithuania, Estonia, Poland, Czechoslovakia (now divided in two), and Yugoslavia (now divided into many parts). Polygamy was likewise practiced in Germany, Austria, Switzerland, Belgium, Holland, Denmark, Sweden, Norway, and England. Thus, the claim that Islam introduced polygamy is incorrect. Even today, the practice of polygamy exists in non-Muslim regions such as China, Japan, Africa, and India. Therefore, it is also untrue that this practice exists only among Muslim peoples and countries. Likewise, it is true that polygamy was not prohibited in the original teachings of Christianity. For not a single sentence can be found in the Bible that explicitly prohibits polygamy. The reason behind the Europeans who first embraced Christianity adhering to monogamy was that, among the pagan European peoples who accepted Christianity at the outset—namely the Greeks and Italians—their traditions prohibited them from keeping multiple wives. Even after accepting Christianity, the Greeks and Italians clung to this ancestral culture. Thus, it may unquestionably be said that monogamy was not an unfamiliar or novel practice imported by the newly arrived Christianity; rather, it was an ancient custom that had prevailed during the era of their primitive pagan religion. Later, the regulations introduced by the Church permanently prohibited polygamy, and this prohibition was treated as part of religious teaching. Yet nowhere in the Bible can the basis for this prohibition be found. It is also an indisputable fact that polygamy spread remarkably among nations advancing along the path of civilization. By contrast, the practice was very rare or entirely absent among ancient, backward peoples. Those who study the history of the world’s civilizations and those skilled in social science hold this very view.
It has been observed that monogamy is most prevalent among most underdeveloped and conservative peoples. These are primarily hunting, fruit-gathering, and agricultural peoples. By contrast, polygamy is found only among institutions that have advanced considerably along the path of progress and development. Sociologists and historians of civilization believe that the wider spread of polygamy in the future is inevitable and that, as urban life and civilized living expand, the number of peoples following this practice will steadily increase. Therefore, it is incorrect to claim that polygamy is associated with cultural backwardness. Rather, the opposite view is fully consistent with reality. Historically too, this is the true nature and reality of polygamy. This is also Christianity’s view of the matter. This is the actual form of the practice, considering the extent of its spread and its association with the progress of civilization. We have not said this with the aim of preserving the practice. We have said these things only to expose distortions of truth and history.
19. Guardianship in Marriage
The Significance of Guardianship
Guardianship is a right granted by the Shariah. By virtue of this right, its holder may enforce his commands upon another. Rights are of two kinds: general guardianship and special guardianship. Special guardianship is further of two kinds: guardianship over the person and guardianship over property. Here, guardianship over the person is under discussion—that is, guardianship over a person eligible for marriage.
Conditions for Being a Guardian
There are three conditions for being a guardian: being free, being of sound mind, and being an adult. It makes no difference whether the person over whom guardianship is exercised is Muslim or non-Muslim. Thus, no enslaved person, insane person, child, or minor can be anyone’s guardian, because such people do not even possess the qualification to be guardians of themselves. The question of their being guardians over others therefore does not arise. There is a fourth condition for guardianship: being Muslim. This condition applies when the dependent person is Muslim, because a non-Muslim has no right to be the guardian of a Muslim. Allah has said: “Allah will never grant the disbelievers authority over the believers.” (An-Nisa: verse 141)
The Requirement of Integrity Waived
Integrity has not been stipulated as a condition for being a guardian, because being dishonest and sinful does not eliminate one’s qualification to arrange the marriage of a dependent person. However, if the guardian’s dishonesty is so serious that it reaches the level of depravity, then he cannot be considered trustworthy with regard to his dependent. His right of guardianship will therefore be removed.
A Woman’s Self-Guardianship in Marriage
A large number of scholars have expressed the view that a woman cannot marry herself off, nor can she marry off someone else. A marriage contract cannot be concluded under her authority, because the presence of a guardian is a condition for the validity of marriage. In other words, the guardian is the person who concludes the marriage contract. The following proofs are presented in support of this:
1. Allah says in verse 32 of Surah An-Nur:
وَأَنْكِحُوا الْأَيَامَى مِنْكُمْ وَالصَّلِحِينَ مِنْ عِبَادِكُمْ وَإِمَائِكُمْ
“Arrange marriages for those among you who are unmarried, and for the righteous and suitable among your male and female slaves.” (Surah An-Nur: verse 32)
2. It is stated in verse 222 of Surah Al-Baqarah: “Do not marry your daughters to polytheist men until they believe.” These two verses have been used as evidence in the following way: Allah addressed the command to arrange marriages to men, not to women. In other words, the meaning of the latter verse is: O male guardians, do not marry the women under your guardianship to polytheist men.”
3. It is narrated from Abu Musa, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “There is no marriage without a guardian.” —Ahmad, Abu Dawud, At-Tirmidhi, Ibn Hibban, and Al-Hakim.
The meaning of the hadith’s statement, “There is no marriage,” is that the marriage is not valid. Therefore, a marriage concluded without a guardian or wali is considered void.
4. Al-Bukhari narrated from Al-Hasan: Ma‘qil ibn Yasar said: The verse 232 of Surah Al-Baqarah was revealed concerning me. He said: I married one of my sisters to a man. Later, he divorced her—that is, he issued two divorces. After she completed her waiting period, he came and proposed to marry her again. I said to him: I married you to her, prepared your residence, and established you honorably, yet you divorced my sister. Now you have come again with a proposal to marry her. No, by Allah, you will never have her again. In fact, the man was not bad, and my sister also wished to return to him. Then Allah revealed this verse: “Do not prevent divorced women from remarrying their husbands after they have completed their waiting period.” I said: O Messenger of Allah, since Allah has forbidden preventing such marriages, I shall now marry her off. Then I remarried her to him.
Hafiz Ibn Hajar said in Fath al-Bari: The stated reason for the revelation of the aforementioned verse is its strongest proof. Here lies the clearest and most conclusive proof of the importance and necessity of a guardian. Otherwise, there would have been no meaning to the brother’s preventing her. If the sister had been legally entitled to marry herself, she would not have needed her brother. It cannot be said of someone who is independent in his own affairs that so-and-so prevented him from carrying out his own affair.
5. It is narrated from Aishah, may Allah be pleased with her, that the Messenger of Allah, peace and blessings be upon him, said: “Any woman who marries without the permission of her guardian—her marriage is void, her marriage is void, her marriage is void. If the husband has intercourse with her after the marriage has been concluded in this manner, she is entitled to the dower because of the sexual intercourse he had with her. If she has no specific guardian and everyone refrains from marrying her off, then the ruler is the guardian of one who has no guardian.” Ahmad, Abu Dawud, Ibn Majah, and At-Tirmidhi. Al-Qurtubi said that this hadith is authentic. Al-Hakim mentioned that it was also narrated with authentic chains from the Mothers of the Believers Aishah, Umm Salamah, and Zaynab.
Ibn al-Mundhir said: Nothing has been found to contradict this hadith.
6. The jurists reasoned as follows: Marriage has several purposes. Women are often driven by emotion, and consequently cannot make a proper choice or decision. Therefore, they cannot achieve the purposes of marriage. For this reason, they have been prevented from concluding the marriage contract, and this task has been entrusted to their guardian so that all the purposes of marriage may be fully achieved.
At-Tirmidhi said: According to the view of such eminent Companions as Umar ibn al-Khattab, Ali ibn Abi Talib, Abdullah ibn Abbas, Abu Hurayrah, Ibn Umar, Ibn Masud, and Aishah, action should be based on the Messenger’s hadith: “There is no marriage without a guardian.”
Among the Successors, this was also the view of Sa‘id ibn al-Musayyab, Al-Hasan al-Basri, Shurayh, Ibrahim an-Nakha‘i, and Umar ibn Abd al-Aziz. This view was also supported by Sufyan ath-Thawri, Al-Awza‘i, Abdullah ibn al-Mubarak, Ash-Shafi‘i, Ibn Shubrumah, Ahmad, Ishaq, Ibn Hazm, Ibn Abi Layla, At-Tabari, and Abu Thawr.
At-Tabari said: When Hafsah became without a husband, her father Umar, may Allah be pleased with him, arranged her marriage; Hafsah did not arrange it herself. This shows that it is incorrect to say that an adult woman capable of deciding her own affairs has the right to arrange her own marriage without a guardian. If any woman had this right, the Messenger of Allah, peace and blessings be upon him, would not have refrained from presenting Hafsah’s marriage proposal to her father. For Hafsah, may Allah be pleased with her, was more entitled and better qualified than her father to decide her own affairs.
According to Abu Hanifah and Abu Yusuf, an adult, sane woman—whether a virgin or non-virgin—may arrange her own marriage. However, it is recommended to entrust this task to the guardian so that she will not be embarrassed or feel shy while concluding the marriage contract among a group of unfamiliar men.
If the woman’s guardian is her heir, he has the right to object to her marriage only when she wishes to marry a man who is not her kufu (an unsuitable match) and her dower is less than mahr al-mithl. If she marries a man who is not her kufu without the permission of her wali or guardian, the view narrated from Abu Hanifah and Abu Yusuf is that her marriage is invalid. This is the view on which fatwas are issued in the Hanafi school, because not every wali properly brings a case before the court, and not every judge administers justice. They therefore issued the fatwa that the marriage is invalid, so that there would be no opportunity for claims and counterclaims in court.
According to some narrations, the wali has the right to object. He may seek dissolution of the marriage from the ruler so that he does not have to bear the burden of disgrace. He retains this right until she becomes pregnant by her husband or the pregnancy becomes apparent. Once she becomes pregnant or the pregnancy becomes visible, his right to seek dissolution is revoked, because the child in the womb cannot be allowed to perish. After a child has been conceived, its protection is the duty of all concerned. If the husband is her kufu and the dower is less than mahr al-mithl, then if the husband accepts the contract, it will necessarily be concluded; if he refuses, the matter will be brought before the judge for annulment. If the woman has no wali who would be her heir—whether she has no wali at all, or has a wali who would not be her heir—then no one has the right to object to a contract she concludes, whether she marries her kufu or someone who is not her kufu, or marries for a dower less than mahr al-mithl. In this case, all responsibility for the marriage rests solely upon that woman, because she has exercised her absolute right herself. She has no wali who could feel disgraced by her marrying someone other than her kufu. By voluntarily relinquishing her claim to mahr al-mithl, that claim has been waived.
The majority of Hanafi jurists present the following proofs in support of their view:
1. The Almighty Allah said:
فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدِ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ
“Then, if he divorces her—that is, by a third divorce—she will not be lawful for him thereafter until she marries another husband.” (Al-Baqarah: 232).
2. Allah Most High said:
وَإِذَا طَلَّقْتُمُ النِّسَاءَ فَبَلَغْنَ أَجَلَهُنَّ فَلَا تَعْضُلُوهُنَّ أَنْ يَنْكِحُنَ أَزْوَاجَهُنَّ
Meaning: When you divorce women—after two divorces—and they complete their waiting period, do not prevent them from marrying their husbands.” (Surah Al-Baqarah: verse 132)
These two verses grant the wife authority over marriage. Authority can be granted only to the person who possesses actual control.
3. Moreover, since women are independent in contracts relating to buying, selling, and similar matters, they are also independent in the marriage contract. There is no difference between one contract and another. Although her wali has some rights in the marriage contract, the wali cannot annul that contract. He can do so only when the woman abuses her rights and marries someone who is not her kufu. Abuse of rights brings disgrace upon the wali himself.
The reasoning of the Hanafi imams is that the condition of a wali or guardian in marriage applies only to a girl who lacks competence and maturity, such as a minor or an insane woman. However, some scholars of usul al-fiqh consider it valid, by applying qiyas, to apply this condition in particular cases.
The Bride’s Permission Must Be Obtained Before Marriage
Whatever the different views concerning a bride’s guardianship may be, it is obligatory for the wali to begin arranging the marriage after consulting her opinion and to obtain her consent before the contract. Marriage is a permanent cohabitation and shared life between a man and a wife. Until the bride’s consent is known, lasting love, harmony, and affection cannot develop between them. Therefore, the Shariah has forbidden forcing a bride into marriage, whether she is a virgin or non-virgin. A marriage in which the bride has no say may not be concluded by force. Imposing a marriage contract upon her without her permission is unlawful. If a wali imposes such a contract by force, the bride has the right to demand its annulment. The evidence is as follows:
1. It is narrated from Ibn Abbas, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: “A non-virgin has more authority over herself concerning her marriage than her wali, and a virgin’s permission must be sought for her marriage. The silence of a virgin is her permission.” —All authentic hadith collections except Al-Bukhari. “A non-virgin has more authority over herself concerning her marriage than her wali” means that, regarding the matter that the wali cannot arrange her marriage without her consent, her authority is greater than that of a virgin. “The silence of a virgin is her permission” means that if she says nothing, it is understood that she has consented. Another narration reported by Ahmad, Muslim, Abu Dawud, and An-Nasa’i states: “The father of a virgin must obtain her opinion.” That is, her consent must be obtained before the contract.
2. Abu Hurayrah (RA) narrated that the Messenger of Allah (SAW) said: “A widow or previously married woman must not be married off without her explicit consent, nor a virgin without her permission.” The people asked, “O Messenger of Allah, how is a virgin’s permission obtained?” He said, “Her silence is her permission.” The explicit, verbal, or otherwise expressed consent of a widow or previously married woman is indispensable.
3. It was narrated from Khansa bint Khidam (RA) that her father married her off against her will, although she was not a virgin. She then complained to the Messenger (SAW), so the Messenger (SAW) annulled her marriage. —All the canonical Hadith collections except Muslim.
4. Ibn Abbas (RA) narrated that a virgin slave woman came to the Messenger (SAW) and informed him that her father had married her off despite her unwillingness. The Messenger (SAW) gave her the choice of annulling the marriage or retaining it. —Ahmad, Abu Dawud, Ibn Majah, and al-Daraqutni.
5. Abdullah ibn Buraydah (RA) narrated that a young woman came to the Messenger of Allah (SAW) and informed him that her father had married her to his nephew so that, through her, he might rid him of his bad character. The Messenger (SAW) gave her the choice regarding her marriage. She said, “I accept what my father has done, but I wished to inform women that fathers have no authority in this matter.” —Ibn Majah.
Guardianship in the Marriage of a Minor Girl
Everything discussed so far concerned an adult girl. We shall now discuss the matter of a minor girl.
Since a minor girl has no considered opinion, is brought up by her father or grandfather, and remains in their custody, it is valid to marry her off without her permission. Abu Bakr al-Siddiq (RA) married Umm al-Mu’minin Aishah (RA) to the Messenger of Allah (SAW) when she was a girl, without her permission, because at that age her opinion was not worthy of consideration. Once a minor girl reaches adulthood after being married, she has the power to annul that marriage. In the Shafi‘i school, it is considered preferable not to marry her off before she reaches adulthood or without her permission, so that she is not cast into marital captivity against her wishes. However, according to most scholars, a father, grandfather, or other wali may not marry off a minor girl, and if he does so, the marriage is invalid. Abu Hanifah, al-Awza‘i, and a group of the early Imams said that this is permissible for all walis, but that after reaching adulthood the girl will have the choice of annulling or retaining the marriage. This is because the Messenger of Allah (SAW) married Umamah, the daughter of Hamzah, while she was a minor, and informed her that she would have the choice upon reaching adulthood. The Messenger of Allah (SAW) married her as his relative and as her guardian, not as a woman in her own capacity. Had he married her as a woman in her own capacity, Umamah would not have had the right to annul the marriage even after reaching adulthood. For Allah has said:
وَمَا كَانَ لِمُؤْمِنٍ وَلَا مُؤْمِنَةٍ إِذَا قَضَى اللهُ وَرَسُولَهُ أَمْرًا أَنْ يَكُونَ لَهُمُ الْخِيَرَةُ مِنْ أَمْرِهِمْ
“When Allah and His Messenger have decided a matter, no believing man or woman has any choice in their own affairs.” (Surah al-Ahzab: 36)
Among the Companions, Umar, Ali, Abdullah ibn Mas‘ud, Ibn Umar, and Abu Hurayrah held this opinion.
The Authority of the Wali
A wali has absolute authority over dependents who are incapable of distinguishing good from evil, such as the insane and boys and girls, and over boys, girls, or mentally deficient dependents who are only partially capable of making such distinctions. This absolute authority means that the wali may marry them off without their consent. The marriage will be valid and effective even if they do not consent. The Shariah grants the wali this authority in order to ensure the dependent’s welfare, because, owing to incapacity or immaturity, the dependent cannot understand what benefits or harms him or her. Because of minority, insanity, or mental deficiency, the dependent lacks the intellectual ability to understand how his or her interests will be protected in the contracts entered into or actions undertaken. Therefore, authority over all the affairs of such incapable or partially capable persons has been entrusted to their walis. The only difference between these two categories—the incapable and the partially capable—is that if an incapable person concludes a marriage contract, the contract is void, because he or she has no ability to distinguish good from evil, although that ability is the basis and essential element of competence to conclude any contract. Conversely, when a partially capable person concludes a marriage contract, it will be valid if all its conditions have been fulfilled, but its effectiveness will depend on the wali’s approval. The wali may approve it or, otherwise, annul it. According to the Hanafis, this kind of absolute authority belongs only to agnatic walis over dependent minor boys and girls, the insane, and the mentally deficient. According to the jurists of the other schools, however, there is a distinction between minors and the insane or mentally deficient. They agree that the father, grandfather, appointed guardian, and ruler are qualified to be the wali of the insane and mentally deficient. But they differ over who is qualified to be the wali of minor boys and girls. Imam Malik and Imam Ahmad said that this qualification belongs only to the father and the appointed guardian, and to no one else. According to Imam al-Shafi‘i, it belongs to the father and grandfather.
Who Are the Walis?
According to Imam Malik, al-Thawri, al-Layth, al-Shafi‘i, and most scholars, only the senior agnatic relatives may be walis in marriage matters. An uncle on the mother’s side, a half-brother, or any other close relative is not qualified to be a wali.
Imam al-Shafi‘i said: A girl’s marriage must first be conducted by her nearest wali; if he is absent, by a more distant wali; and if none is available, by the ruler. Otherwise, the marriage is invalid. [In other words, according to al-Shafi‘i, the order of walis is as follows: first the father, then the grandfather, then the full brother, then the half-brother, then the full nephew, then the nephew, then the paternal uncle, then the paternal cousin, and then the ruler. In other words, no one may conduct the marriage while a closer relative is present. This is because it is a right acquired through agnatic kinship, and in this respect it resembles inheritance. Therefore, if someone conducts a marriage in violation of this order, the marriage is invalid.]
Therefore, if a woman conducts her own marriage, whether with or without the wali’s permission, it will be annulled. According to Abu Hanifah, relatives other than agnatic relatives also have the right to be walis in marriage. The author of Rawdat al-Nadiyyah says: “The opinion I consider reliable is that the bride’s relatives should be her walis in marriage, beginning with the closest. When someone other than the closest relative conducts the bride’s marriage, those who would suffer humiliation because of an unequal marriage are the ones qualified to be walis.” This criterion is not restricted to paternal relatives; it may also apply to others, such as a half-brother or a daughter’s son. A half-brother or a daughter’s son may perhaps feel the humiliation more intensely than paternal cousins. Thus, there is no reason to restrict guardianship in marriage to agnatic relatives alone. Nor is there reason to restrict it to heirs alone. Whoever holds this view must provide evidence that, linguistically or technically, this is the meaning of wali.
The author of Rawdat al-Nadiyyah also says: “There is no doubt that some forms of kinship take precedence over others. The basis of this precedence is not eligibility to receive a share of property or the right to dispose of it, which would make it analogous to inheritance or to guardianship over a minor. Rather, its basis is something else: the sense of disgrace or humiliation that befalls a person through a relative. This sense of humiliation is not confined to agnatic relatives; others also experience it. There is no doubt that some relatives have stronger feelings in this regard than others.” For example, paternal and filial relatives take precedence over others, followed by full brothers, half-brothers, grandsons, grandsons through daughters, nephews, nephews through sisters, paternal uncles, maternal uncles, and then their descendants, in that order. Whoever prefers to designate one of them while excluding another must produce evidence for doing so. If he wishes to offer merely the statements of people of the past as proof, we are not prepared to rely on him.” (Al-Rawdah, 2/14)
The Wali May Validly Marry His Dependent
A man may directly marry a woman under his guardianship without requiring another wali, if the woman agrees to accept him as her husband. Umm Hakim bint Qariz said to Abd al-Rahman ibn Awf: “Several men have proposed to me. Marry me to whichever of them you consider suitable.” Abd al-Rahman ibn Awf said: “Are you granting me this authority?” She replied: “Yes.” He said: “Then I marry you myself.”
Imam Malik said: If a previously married woman tells her wali, “Marry me to whoever you consider suitable,” and the wali then marries her either to himself or to another person he selects, accepting that marriage will be binding upon the woman, even if she does not know specifically who her husband is. This is the view of the Hanafis, al-Layth, al-Thawri, and al-Awza‘i. Imam al-Shafi‘i and Dawud said: If the marriage is to be conducted with the wali himself, it must be conducted by the ruler, another wali, or someone more distant than him, because having a wali is a condition of marriage. The person who conducts the marriage cannot himself be both the wali and the administrator of the marriage. Ibn Hazm, however, opposed al-Shafi‘i’s view and produced evidence in support of his own: the Messenger of Allah (SAW) freed Safiyyah and then married her, counting her emancipation as her mahr. The Messenger (SAW) married the woman under his authority himself, and this is decisive proof for everyone. Allah Most High has said:
وَانْكِحُوا الْأَيَامَى مِنْكُمْ وَالصَّلِحِينَ مِنْ عِبَادِكُمْ وَإِمَائِكُمْ مَا إِنْ يَكُونُوا فُقَرَاء يُغْنِهِمُ اللَّهُ مِنْ فَضْلِهِ مَا وَاللَّهُ وَاسِعٌ عَلِيمٌ
Meaning: “Marry off those among you who are unmarried, and the righteous among your male and female slaves. If they are poor, Allah will enrich them from His bounty. Allah is All-Encompassing, All-Knowing.” (Surah al-Nur: 32)
Now, whoever marries an unmarried woman himself with her consent has acted in accordance with Allah’s command. Allah did not say that the person who marries off an unmarried woman may not marry her himself. Therefore, it is valid and effective.
The Absence of the Wali
When a wali who possesses all the conditions and qualifications of guardianship is present, a more distant person is not considered qualified to be the wali. For example, when the father is present, a brother, paternal uncle, or another person cannot be the wali. If that brother or paternal uncle conducts the marriage of a minor girl or a similarly dependent girl without the father’s permission, the marriage will remain suspended pending approval. But if the closest wali is absent and a suitable, kufu-suitable suitor is unwilling to wait for his opinion, guardianship will pass to the next person so that the woman’s interests are not harmed. When the absent wali returns, he will not have the right to object to the marriage conducted by the next wali, because he is deemed nonexistent due to his absence, and the next person is considered the rightful wali. This is the Hanafi view. Al-Shafi‘i, however, says that if a more distant wali conducts the marriage while the closest wali is present, the marriage is void. When the closest wali is absent, the next person cannot conduct the marriage either; in that case, the judge will conduct it.
It is stated in Bidayat al-Mujtahid: On this issue, Imam Malik gave different opinions at different times. He said that if a more distant person conducts a marriage while the closest person is present, the marriage is void. At another time he said that it is valid. On another occasion he said that the closer wali may either approve or annul the marriage. However, these differing opinions do not apply to a virgin daughter married by her father or to a ward raised by an appointed guardian. In these cases, his position that the marriage is void remains in force. That is, if anyone other than the father conducts the marriage of a virgin daughter while the father is present, or if anyone other than the appointed guardian conducts the marriage of a ward while that guardian is present, the marriage is void. Imam Malik supported Abu Hanifah’s view that when the closer wali is absent, guardianship passes to the more distant wali.
When a Close Relative Wali Is Absent, He Is Like a Distant Relative Wali
It is stated in Al-Mughni: When the close-relative wali is detained or imprisoned in a place where it is impossible to obtain his opinion, he is treated like a distant-relative wali. This is because distance is not considered merely because of his physical location; rather, it is considered because it is impossible to conduct the marriage under his supervision. That latter reason exists here. Therefore, when it is not known whether the wali is a close or distant relative, or when he is a close relative but his whereabouts are unknown, he is treated as a distant relative.
Two Walis Conducting the Marriage Separately
When two walis conclude marriage contracts for a girl, it must be determined whether both contracts were concluded simultaneously or whether one preceded the other. If both contracts were concluded at the same time, both will be void. If one preceded the other, the bride will be considered the wife of the groom of the first contract, even if the second man has had intercourse with her. If the groom of the second contract knowingly has intercourse with her despite knowing beforehand that another man’s contract had already been concluded with her, his intercourse will be considered fornication and he will be liable to the hadd, the punishment prescribed by the Shariah. If he did not know this beforehand, she will be returned to the groom of the first contract, while the second man will be exempt from punishment because of his ignorance. Samurah (RA) narrated that the Messenger of Allah (SAW) said: “The woman whom two walis marry off separately is the wife of the groom of the first contract.” (Ahmad, Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah.) The unconditional treatment in this Hadith of the first contract as effective and the second as ineffective entails that the bride is the wife of the groom of the first contract, whether or not the groom of the second contract has had intercourse with her.
A Woman Who Has No Wali and Cannot Go to Court
Al-Qurtubi says: If a woman lives in a place where she has no wali and there is no ruler, responsibility for her should be entrusted to a trustworthy neighbor, who will marry her off and temporarily serve as her wali. This is because a system of marriage must exist in human society; it is sufficient that it be carried out properly to the extent possible. (Ahkam al-Qur’an, p. 86, vol. 3.) For this reason, Imam Malik said concerning a destitute woman: The person to whom such a woman entrusts her affairs will marry her off, because she lives far from the ruler. Thus, she is comparable to someone living in a place without a ruler. Broadly speaking, therefore, the Muslim community is her wali. Al-Shafi‘i says: When a woman among one’s neighbors has no wali and appoints a man as her wali or guardian, it is permissible for that man to marry her off. This resembles the appointment of an arbitrator. The person appointed as arbitrator takes the place of the ruler, and his decision is effective.
The Wali Preventing the Marriage of a Woman under His Guardianship
The scholars agree that it is not permissible for a wali to prevent a woman under his guardianship from marrying a suitable man who wishes to marry her with a proper dower, thereby obstructing the marriage and wronging her. In such a case, when the wali prevents the marriage, the woman has the right to apply to the court so that the court may marry her off. In this situation, guardianship will not pass to another wali; rather, it will pass directly from the oppressive wali to the court. Preventing a marriage is an act of injustice, and the duty of removing injustice is entrusted to the court. However, when the marriage is prevented for a reasonable cause—for example, the prospective husband is not suitable, the stipulated dower is less than the proper dower, or another, more suitable suitor is available—guardianship will not be transferred, because in that case the wali is not considered an obstructer. Ma‘qil ibn Yasar (RA) said: I had a sister. Marriage proposals for her came to me. Eventually, one of my paternal cousins came to me with a proposal. I married my sister to him. He then gave her a revocable divorce and left her. After her waiting period ended, proposals for my sister began coming to me again. Then that same cousin came to me with another proposal. I said, “By Allah, I will never marry her to you again.” Then the following verse was revealed concerning me: “When you divorce women and they complete their waiting period, do not prevent them from remarrying their husbands.” (Surah al-Baqarah: 232) Ma‘qil said: Thereafter, I expiated my oath and married my sister to him.
The Marriage of an Orphan Girl
It is permissible to marry off an orphan girl before she reaches adulthood. The wali will arrange her marriage, but after she reaches adulthood she will have the power to annul it. This is the view of Aishah (RA), Ahmad, and Abu Hanifah. Allah Most High has said: “They ask you for a ruling concerning women. Say: Allah gives you a ruling concerning them, and what is recited to you in the Book concerns orphan girls to whom you do not give what has been prescribed for them, while you wish to marry them.” (Surah al-Nisa: 127)
Aishah (RA) said: This verse concerns an orphan woman who is raised under the care of her wali, and then that wali wishes to marry her but does not give her a fair dower. Therefore, they were forbidden to marry them unless they gave them a fair dower. Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrated from the Messenger (SAW): “An orphan woman’s opinion concerning herself will be sought. If she remains silent, that is her consent; if she expresses unwillingness, her marriage is not valid.” Al-Shafi‘i said: An orphan woman may be married off only after reaching adulthood, because the Messenger of Allah (SAW) instructed that her opinion be sought. Yet her opinion cannot be sought before adulthood, since asking a minor girl’s opinion is futile and meaningless.
A Marriage Conducted by the Same Wali
When the wali of both the groom and the bride is the same person, that wali may conclude the marriage of a minor boy and girl. For example, when the grandfather is the wali or an authorized agent, he may marry one minor grandson to another minor granddaughter—that is, a male and female cousin—to each other.
When the Ruler or Judge Is the Wali
Guardianship passes to the ruler or judge in two situations:
1. When there are multiple walis and they fall into dispute.
2. When no wali is available, whether no wali exists at all or the wali is absent. If a suitable, kufu-qualified groom is available, the adult girl agrees to him, and none of the walis is present—for example, when the wali lives outside the city of both the groom and the bride—the judge may conduct the marriage. However, if the groom and bride agree to wait for the absent wali, regardless of how long the delay may be, they must wait for him, and guardianship will not pass to the judge. If the bride does not express such agreement, waiting is not obligatory. For al-Bayhaqi narrates from Ali (RA): “Three things must not be delayed: prayer when its time arrives; the burial of the dead when the body is present; and the marriage of an unmarried woman when a suitable groom is found.”
20. Appointing an Agent to Conduct a Marriage
Appointing an agent is a valid contract, because people need it for many of their affairs. The jurists unanimously agree that a person may appoint another as an agent to conclude every contract that he himself is capable of concluding, such as buying and selling, leasing, collecting debts, going to court to recover debts, arranging a marriage, pronouncing divorce, and all other contracts in which agency is permissible. The Messenger of Allah (SAW) acted as an agent in arranging the marriages of some of his Companions.
Abu Dawud narrated from Uqbah ibn Amir (RA): The Messenger of Allah (SAW) said to a man, “Are you willing for me to marry you to such-and-such a woman?” He replied, “Yes.” He also said to the woman, “If I marry you to such-and-such a man, are you willing?” She too replied, “Yes.” He then married the two to each other. Thereafter, the man consummated the marriage with his wife, although before that he had neither stipulated a dower for her nor given her anything. He had been among those present at Hudaybiyyah, and those who had been present at Hudaybiyyah possessed property at Khaybar. When the man’s death approached, he said: “The Messenger of Allah (SAW) married me to such-and-such a woman, but I neither stipulated a dower for her nor gave her anything. I call you all as witnesses that I give her my property at Khaybar as her dower.” The woman accepted the property and sold it for one hundred thousand coins.”
This Hadith proves that the person acting as an agent may represent both parties. It is narrated from Umm Habibah (RA), who was among those who migrated to Abyssinia, that while she was in the land of the Negus, the Negus married her to the Messenger (SAW).” (Abu Dawud.) The person who acted as the Messenger of Allah’s (SAW) agent in conducting this marriage was Amr ibn Umayyah al-Damri. The Messenger (SAW) appointed him as his agent for this task. The Negus gave Umm Habibah her dower, so the marriage ceremony was arranged by him.
Who Has the Right to Appoint an Agent and Who Does Not
Every sane, adult, free person has the right to appoint an agent, because such a person possesses full legal capacity. A person who has legal capacity may conclude his or her own marriage. Whoever has the right to conclude his or her own marriage also has the authority to appoint another as an agent. [It must be determined whether the conditions mentioned at the time of appointing the agent have been fulfilled. The Hanafi jurists say that if a minor boy can distinguish right from wrong, he may appoint an agent. Similarly, a slave may appoint an agent.]
But whoever has no capacity at all, or lacks full legal capacity, is not entitled to appoint another as a representative. This includes children and minors, the insane, and the mentally incapacitated. None of them is qualified to contract his or her own marriage. Therefore, they are also ineligible to appoint a representative.
The jurists disagree over whether it is valid for an adult, mentally sound woman to appoint a representative. This is because they also disagree over whether she is qualified to contract her own marriage herself. Abu Hanifah says: Since she has the capacity to contract her own marriage, she also has the capacity to appoint someone else as her representative. But most scholars say that her wali has the authority and may contract her marriage without being appointed as her representative. However, the woman’s consent must be obtained. Some Shafi‘i scholars distinguish between the father and grandfather and the other awliya. They say that the father and grandfather need not be appointed as representatives, whereas the others do.
Appointing a representative with a defined scope and with an undefined scope
Appointing a wakil or representative is valid in two ways: with a defined scope and with an undefined scope. Appointing a representative with a defined scope means appointing someone to arrange a marriage with a particular woman, with a woman from a particular family, or for a specified amount of mahr. Appointing one with an undefined scope means appointing someone to arrange a marriage with any woman, a woman from any family, or for any amount of mahr. If a representative is appointed with an undefined scope, then according to Imam Abu Hanifah he is free to arrange a marriage with any woman, from any family and for any amount of mahr, except his own daughter, a daughter under his guardianship, or a similar woman whose marriage could expose him to accusations. If he arranges a marriage with a defective woman, a woman lacking kufu, or for a mahr exceeding mahr al-mithl, the marriage will be valid and may not be rejected. However, if he arranges a marriage with his own daughter, a girl under his guardianship, or a girl whose marriage could expose him to accusations, it will be acceptable only with the appointing person’s approval. Imam Abu Yusuf and Muhammad say: However generally a representative or wakil may have been appointed, he must arrange a marriage with a woman free from defects, possessing kufu, and with mahr al-mithl. If the mahr is slightly higher than mahr al-mithl, as people are ordinarily accustomed to accepting, there is no objection. Abu Yusuf and Muhammad argue that whoever appoints someone as a representative does so so that he will choose the most beneficial and suitable woman for him. Not specifying the woman does not mean that any woman he brings will suffice. The customary understanding of appointing a representative is that he will choose a woman with mahr al-mithl. This customary understanding must be fully applied and given effect, because what is understood according to custom must be treated as an implied condition. There is no alternative but to rely on this view. Conversely, when a representative is appointed with a defined scope, deviation is not valid. However, if the deviation results in something superior, it is valid—for example, if the woman selected by the representative is more beautiful than the specified woman, or her mahr is lower than the specified mahr. But even if the deviation is not superior to the specified arrangement, the contract will still be valid. Nevertheless, the person who appointed the representative will not be obliged to accept it. He may accept it if he wishes, or reject it.
The Hanafi jurists said: If the person appointing the representative is a woman, and she orders her marriage to be contracted with a particular man and for a specified mahr, her instructions must be followed exactly. If she gives an unrestricted order to marry her to any man, and the representative contracts her marriage to himself, to his father, or to his son, the contract will not take effect without the woman’s approval, because there is a possibility of accusation or slander. If he marries her to another man possessing kufu and with mahr al-mithl, the contract will take effect and acceptance will be obligatory; neither the woman nor her wali may reject it. If the man possesses kufu but the mahr is substantially less than mahr al-mithl, the contract will not take effect immediately; rather, it will remain suspended until the woman and her wali give permission, because the rights of both are involved. If the husband lacks kufu, the contract will be void, whether the mahr equals, exceeds, or falls below mahr al-mithl. Permission is of no benefit here, because permission is effective for a suspended contract, but not for a void contract.
The wakil or representative appointed for marriage is both the appointing person’s messenger and the conveyer of his or her intention
The wakil for marriage differs in many respects from a wakil for other contracts. The marriage wakil is merely the appointing person’s messenger and conveyer of his or her intention. Therefore, he has no involvement in the rights connected with the contract. Thus, he is not obliged to collect and deliver the mahr. [However, if he has undertaken responsibility for collecting and delivering the mahr, he is obliged to do so. But this is not his responsibility as a wakil or representative; it is a separate responsibility.] When he is the wife’s wakil, he is not thereby charged with making the wife obedient to her husband. If he is the wife’s wakil, he may not accept the mahr from the husband on the wife’s behalf either. If the wife permits him, however, he may do so as an additional task. This is extra work beyond his role as the marriage wakil. His work as the marriage wakil ends once he has concluded the contract.
21. Kufu in marriage
Definition of kufu
Kufu means equality and similarity. In marriage, kufu means that the husband and wife should be equal to one another in honor, social standing, character, and financial status. There is no doubt that when a man’s honor and standing are equal to those of his wife, this is more conducive to ensuring the success of married life and more effective in preventing its failure.
The Shariah ruling concerning kufu
What is the Shariah ruling concerning kufu, and to what extent should it be applied? The jurists disagree on this question. Ibn Hazm said: Kufu has no validity whatsoever. He says that any Muslim man, provided he is not an adulterer, may marry any Muslim woman, provided she is not an adulteress. Muslims are all brothers. It is not forbidden for the daughter of a black woman of unknown lineage to marry a Hashemite caliph’s son. A grossly sinful Muslim man is kufu for a grossly sinful Muslim woman, provided he is not an adulterer and she is not an adulteress.
The evidence is verse 10 of Surah al-Hujurat: إِنَّمَا الْمُؤْمِنُونَ“The believers are all brothers,” and verse 3 of Surah al-Nisa’: “Marry whichever women please you,” and, after describing the women who are forbidden, Allah says in verse 24 of Surah al-Nisa’: “And all others are lawful for you.”
The Messenger of Allah ﷺ married Zaynab to his freed slave Zayd. He also arranged the marriage of al-Miqdad to Diba‘ah bint al-Zubayr. Ibn Hazm says: Based on what I have said concerning sinful men and sinful women, it is not permissible for a sinful man to marry anyone except a sinful woman, nor for a sinful woman to marry anyone except a sinful man. Yet no one says this. Allah has said:
إِنَّمَا الْمُؤْمِنُونَ إِخْوَةٌ وَقَالَ سُبْحَانَهُ وَالْمُؤْمِنُونَ وَالْمُؤْمِنَاتُ بَعْضُهُمْ أَوْلِيَاءُ بَعْضٍ
“The believers are all brothers.” Allah also said: “The believing men and believing women are allies of one another.” (Surah al-Tawbah: verse 71)
Kufu or equality is determined by uprightness and good character
Another group of scholars holds that kufu or equality must be considered, but that it is determined by honesty and good character. Thus, lineage, profession, wealth, and anything else have no value in this regard. Therefore, it is permissible for an honest man of no noble lineage to marry a woman of noble birth, for a man in a low-status profession to marry a woman of high standing, for a famous man to marry a reputable and honored woman, and for a poor man to marry a wealthy woman, provided he is Muslim and of good character. No wali has the right to object or demand annulment on this basis. Even if the man is incompatible with the status of the wali who contracted the marriage, if the marriage was concluded with the woman’s consent, the wali may not demand separation. But if the man fails to meet the condition of uprightness, he is not kufu for a righteous woman. In such a case, if she is a virgin and her father forcibly marries her to a fasiq, she has the right to demand that the marriage be dissolved.
It is stated in Bidayat al-Mujtahid: In the Maliki school there is no disagreement that when a father marries his virgin daughter to a wine-drinker or to someone who is generally fasiq or sinful, she may dissociate herself from that marriage. In such a case, the ruler will examine the matter and separate the two. Similarly, when he marries her to someone who possesses unlawfully acquired wealth, or to someone who swears oaths to divorce frequently, she may also dissociate herself from the marriage. The proofs of the jurists of this school are as follows:
1. Allah Most High said:
يَأَيُّهَا النَّاسُ إِنَّا خَلَقْنَكُمْ مِنْ ذَكَرٍ وَأُنثى وَجَعَلْنَكُمْ شُعُوبًا وَقَبَائِلَ لِتَعَارَفُوا مَا إِنْ أَكْرَمَكُمْ عِنْدَ اللَّهِ أَتْقَكُمْ
“O mankind, We have created you from a male and a female, and made you into peoples and tribes so that you may know one another. Indeed, the most honored of you in the sight of Allah is the most God-fearing.” (Surah al-Hujurat: verse 13).
This verse declares that all people are equal in their creation and in their human value and honor, and that no one is more honored than another except through demonstrating the highest degree of God-consciousness by fulfilling people’s rights and Allah’s rights.
2. al-Tirmidhi narrated from Abu Hatim al-Mazani that the Messenger of Allah ﷺ said: “When someone whose character and religious commitment are satisfactory to you comes to you with a marriage proposal, marry him. If you do not, great trial and corruption will spread throughout the earth.” They asked: O Messenger of Allah, even if there is something else about him? He repeated three times: “When someone whose religious commitment and honesty are satisfactory to you comes to you, marry him.” This hadith instructs the awliya and guardians to marry the women under their care to religious, honest, and virtuous suitors. If they do not marry them to men of good character and instead become attracted to lineage, social position, rank, and wealth, such trial and corruption will result that it will have no end.
3. The Messenger of Allah ﷺ said: “O Banu Bayadah, marry your daughters to Abu Hind; marry them to him.” Abu Hind was a freed slave of Banu Bayadah and a barber. He was not descended from that tribe. It is stated in Ma‘alim al-Sunan: This hadith is conclusive evidence for Imam Malik and those who share his view that equality is to be considered only in religious commitment and not in any other respect.
4. The Messenger of Allah ﷺ proposed Zaynab bint Jahsh’s marriage to Zayd ibn Harithah. But Zaynab and her brother ‘Abdullah rejected the proposal. She was of noble Quraysh lineage and, moreover, was a paternal cousin of the Messenger of Allah ﷺ. Her mother was Umaymah, the daughter of ‘Abd al-Muttalib. Zayd, on the other hand, had been a slave. Then this verse was revealed:
وَمَا كَانَ لِمُؤْمِنٍ وَلَا مُؤْمِنَةٍ إِذَا قَضَى اللَّهُ وَرَسُولَهُ أَمْرًا أَنْ يَكُونَ لَهُمُ الْخِيَرَةُ مِنْ أَمْرِهِمْ وَمَنْ يَعْصِ اللَّهَ وَرَسُولَهُ فَقَدْ ضَلَّ ضَلَالًا مُبِينًا
Meaning: “It is not for a believing man or woman, when Allah and His Messenger have decided a matter, to have any choice in their matter. Whoever disobeys Allah and His Messenger has clearly strayed.” (Surah al-Ahzab: verse 36)
After this verse was revealed, her brother ‘Abdullah said to the Messenger of Allah ﷺ: Command me as you wish. He then married Zaynab to Zayd.
5. Abu Hudhayfah married Salim to Hind, the daughter of al-Walid ibn ‘Utbah. Salim was the freed slave of an Ansari woman.
6. Bilal ibn Rabah was married to the sister of ‘Abd al-Rahman ibn ‘Awf.
7. ‘Ali was asked about marriage between people possessing kufu. He said: When people believe and accept Islam, whether they are Arabs or non-Arabs, Qurayshis or Hashemites, they are all kufu for one another—that is, they are equal and equivalent. This is the view of the Maliki school. al-Shawkani said: ‘Umar, Ibn Mas‘ud, Muhammad ibn Sirin, ‘Umar ibn ‘Abd al-‘Aziz, and Ibn al-Qayyim said: What the decision of the Messenger of Allah ﷺ requires is the preservation of complete and fundamental equality in religious commitment. Thus, a Muslim woman cannot marry a disbeliever, nor can a chaste woman marry a sinful man. The Qur’an and Sunnah have not considered anything beyond this regarding kufu or equality. They have prohibited a chaste Muslim woman from marrying a filthy adulterer, without considering lineage, profession, wealth, or anything similar. If a slave is a virtuous Muslim, it is entirely permissible for him to marry a wealthy woman of noble lineage. Non-Qurayshi men may freely marry Qurayshi women, non-Hashemite men may marry Hashemite women, and poor men may marry wealthy women.” — Zad al-Ma‘ad, 4/22.
All the Maliki and non-Maliki jurists mentioned earlier regard only honesty and religious commitment as valid elements of kufu. Other jurists also regard honesty and religious commitment as valid elements of kufu, and they likewise hold that a sinful man is not kufu or equivalent for a chaste woman. However, they do not favor restricting kufu to these two matters alone. They believe that there are further matters in which equality or equivalence must be maintained.
Other elements of kufu
One: lineage-based kufu. For example, Arabs are kufu for one another, and Qurayshis are kufu for one another. A non-Arab man is not considered kufu for an Arab woman, nor a non-Qurayshi man for a Qurayshi woman. The evidence is given below:
al-Hakim narrated from ‘Umar that the Messenger of Allah ﷺ said: “Arabs are kufu for one another. One tribe is kufu for another, one subtribe for another, and one individual for another. But a weaver and a barber are not kufu for one another.”
al-Bazzaz narrated from Mu‘adh ibn Jabal that the Messenger of Allah ﷺ said: “Arabs are kufu for one another, and freed slaves are kufu for one another.”
It is narrated from ‘Umar that he said: “I will certainly not allow noble and honorable women to be married without kufu.” — al-Daraqutni.
When Ibn Abi Hatim’s father was asked about the aforementioned hadith narrated by Ibn ‘Umar, he said: It is a false hadith without foundation. al-Daraqutni said: It is not authentic. Ibn ‘Abd al-Barr said: It is fabricated and invented. The hadith narrated by Mu‘adh is also disputed. The actual fact is that no evidence for the validity of kufu and lineage-based equivalence is found in hadith. The Shafi‘i and Hanafi jurists did not disagree with the validity of lineage-based equivalence in the manner described above. However, they disagreed about distinctions among the Qurayshis. According to the Hanafi jurists, Qurayshis are kufu or equivalent for Hashemites. [The descendants of Nadar ibn Kinanah are Qurayshi; the descendants of Hashim ibn ‘Abd Manaf are Hashemite; and those united by an ancestor above Nadar are known as Arabs.] According to the authoritative Shafi‘i position, Qurayshis are not kufu for Hashemites and Muttalibis. Their proof is the hadith narrated by Wathilah ibn al-Asqa‘. The Messenger ﷺ said: “Allah chose Kinanah from the descendants of Isma‘il, Quraysh from the descendants of Kinanah, Banu Hashim from Quraysh, and me from Banu Hashim. Thus, I am the best of the best of the best.” (Muslim)
In Fath al-Bari, Hafiz Ibn Hajar said: The correct view is to give Banu Hashim and Banu al-Muttalib preference over others. Apart from them, everyone is kufu for everyone else. But the actual truth is the opposite, because the Messenger of Allah ﷺ married two of his daughters to ‘Uthman and Zaynab to ‘As ibn al-Rabi‘. Both men belonged to the clan of ‘Abd Shams.
On the other hand, knowledge—meaning the honor of Islamic knowledge—ranks above all lineage and other forms of nobility. A scholar is kufu for any woman, no matter how noble her family, and no matter how unknown the scholar’s lineage may be. The Messenger of Allah ﷺ said: “People are like mines, like mines of gold and silver. The best of them in the pre-Islamic period will be the best of them in Islam after acquiring Islamic knowledge.”
And Allah Most High said:
يَرْفَعُ اللَّهُ الَّذِينَ آمَنُوا مِنْكُمْ وَالَّذِينَ أُوتُوا الْعِلْمَ دَرَجَاتٍ
“Allah will raise in rank those of you who believe and those who have been given knowledge.” (Surah al-Mujadilah: verse 11)
قُلْ هَلْ يَسْتَوِي الَّذِينَ يَعْلَمُونَ وَالَّذِينَ لَا يَعْلَمُونَ
“Say: Are those who know equal to those who do not know?” (Surah al-Zumar: verse 10).
This concerns Arabs. Regarding non-Arabs, it has been said: “Lineage-based nobility is not considered as equivalence among them.”
According to al-Shafi‘i and most of his disciples, lineage-based equivalence is also recognized among them, just as it is among Arabs. This is because if one of their women marries a man of lower lineage than hers, people censure her. Since the same reason exists, their ruling is like that of the Arabs.
Two: freedom. A slave is not kufu or equivalent for a free woman. A freed slave is likewise not kufu or equivalent for a woman who is free by birth. Similarly, a man one of whose forefathers was a slave is not kufu for a woman whom slavery never touched, nor any of whose forefathers was a slave. This is because it would be a source of shame and stigma for a free woman to become the wife of a slave or of a man whose ancestor was a slave.
Three: Islam. Kufu must be considered in terms of the Islam of one’s forefathers. This is recognized for non-Arabs, but not for Arabs, because Arabs consider pride in their lineage sufficient. They do not take pride in the Islam of their forefathers. Non-Arabs, on the other hand, take pride in the Islam of their forefathers.
Similarly, when a woman is Muslim and her father and grandfather were also Muslim, a Muslim man whose father or grandfather was not Muslim is not kufu for her. A man with one Muslim forefather is kufu for a woman with one Muslim forefather. A man whose father and grandfather alone were Muslim is kufu for a woman whose forefathers for many generations were Muslim. This is because a woman’s identity is completed through her father and grandfather; anything beyond that is not considered. According to Abu Yusuf, a man with one Muslim forefather is kufu for a woman whose forefathers for many generations were Muslim, because in his view identity is completed through the father. But according to Abu Hanifah and Muhammad, identity is not complete without the father and grandfather.
Four: profession. For the daughter of a family with an honorable profession, a man from a family engaged in a lower-class profession is not kufu. If the professions of both families are similarly honorable, the existing difference is not considered. The standard for whether a profession is honorable or dishonorable is social custom. A profession may be regarded as honorable at a particular time or in a particular place, and as dishonorable at another time or in another place. Those who advocate profession-based kufu cite the hadith quoted earlier: “Arabs are kufu for one another, except tailors and barbers.” Imam Ahmad ibn Hanbal said: Society operates according to this hadith.
It is stated in al-Mughni: “Imam Ahmad intended to convey that this accords with prevailing social custom. Noble professionals consider it dishonorable for their daughters to marry lower-level professionals, such as tailors, leather processors, sweepers, cleaners, and the like. Society also customarily publicizes this matter and identifies it as contrary to lineage-based nobility. This is the view of al-Shafi‘i, Abu Yusuf, and Muhammad, and according to one report, also of Abu Hanifah and Ahmad. Another view narrated from Abu Yusuf is that it is not considered unless it is extremely dishonorable.”
Five: wealth. The Shafi‘is disagree over whether it should be considered. Some say that it should be. According to them, a poor man is not kufu for a wealthy woman, because it is narrated from Samurah that the Messenger of Allah ﷺ said: “Nobility lies in wealth, and greatness lies in God-consciousness.” They also argue that a poor person’s living expenses are lower than those of a wealthy person. Others say that financial status is not considered in kufu, because wealth is not stable. Moreover, virtuous and generous people do not take pride in wealth. A poet said: “Despite want and poverty, we have lived comfortably for ages. Time has made us all drink from the cup of poverty and need. Just as our wealth did not increase our arrogance toward any relative, our poverty did not diminish our nobility in the least.”
According to the Hanafis, wealth is considered in determining kafa’ah and is relevant. What is relevant here is possessing enough wealth to pay the mahr and maintenance. Whoever cannot provide both, or either one of them, is not considered a suitable match. By mahr is meant the amount that, according to the customary practice of society, must be paid immediately, since the excess is generally paid later. According to Abu Yusuf, the ability to provide maintenance alone is sufficient for kafa’ah; the ability to pay the mahr is not essential, because concession in this matter is customary. In this regard, the financial means and prosperity of the husband’s father are considered to be the husband’s means.
According to one view transmitted from Imam Ahmad, wealth is relevant and necessary in determining kafa’ah. This is because a wealthy woman is harmed by her husband’s poverty, as it would hinder her own maintenance and the livelihood of her children. Moreover, poverty is socially regarded as a defect. Just as people compete in noble lineage, they also compete in abundance of wealth.
Sixth: freedom from physical and mental defects. The Shafi’i and Maliki jurists have mentioned freedom from defects as a condition of kafa’ah. A man who has a defect that warrants annulment of the marriage is not a suitable match for a woman free of such a defect. If the defect is not serious enough to annul the marriage but causes dislike or aversion—such as sterility, amputation, or deformity—there are two opinions on the matter. According to al-Ruyani, however, a person with such a defect is not a suitable match for his life partner. The Hanafis and Hanbalis did not regard this as a condition of kafa’ah.
Al-Mughni states: Freedom from defects is not a condition for kafa’ah, because everyone agrees that the presence of a defect does not invalidate the marriage. It gives the woman the right to reject the marriage, but does not give that right to her wali, since the harm concerns only the woman. However, the wali may prevent his ward from marrying a madman, a leper, or a cripple.
For whom does kafa’ah apply?
Kafa’ah in marriage applies to the husband, not the wife. That is, the husband must be the wife’s equal or suitable match. This is a condition for marriage; it is not a condition that the wife be the husband’s equal. [According to the Hanafis, kafa’ah on the wife’s side applies in two cases: (1) when a man appoints someone as an agent to marry him, without specifying any particular woman; in this case, the agent’s execution of the marriage is binding upon the principal; (2) when someone other than the father acts as the wali in arranging the marriage of a minor girl. In such a case, for the marriage to be valid, the wife must be the husband’s equal, so that the husband’s interests are not harmed.]
First, the Messenger of Allah (peace and blessings be upon him) said: Whoever has a slave girl in his possession, teaches her well, treats her well, then sets her free and marries her will have a double reward. —Bukhari and Muslim.
Second, no one was equal in status to the Messenger of Allah (peace and blessings be upon him). Nevertheless, he married women from various Arab tribes. He even married Safiyyah bint Huyayy, and in that case she and her guardians generally had to endure insults. On the other hand, if the wife of a noble man is bad and lower in status than he is, she is not generally subjected to humiliation.
The right of the wife and her guardians to have a suitable match
According to most jurists, having a suitable husband—one possessing kafa’ah—is the right of the wife and her awliya’. Therefore, a wali may not marry the girl under his guardianship to a man lacking kafa’ah without her consent and that of all the other awliya’, because marrying her without kafa’ah amounts to dishonoring and humiliating them. It is therefore impermissible without their collective consent. If the woman and her wali consent, the marriage is valid, because their disagreement was the only obstacle. Once they consent, the obstacle is removed. The Shafi’i jurists say: the right to kafa’ah belongs to the wali who bears the financial responsibility. Imam Ahmad says that it is the right of all the awliya’, whether near or distant. Any wali who does not consent has the power to annul the marriage. Another opinion is reported from Ahmad: kafa’ah is a right of Allah. Even if the wife and her awliya’ agree to a marriage without kafa’ah, their consent is not valid. The basis of this opinion, however, is that kafa’ah is considered only in matters of religion and not in anything else. This view is known from one report.
When is kafa’ah considered?
Kafa’ah is considered only at the time the marriage contract is concluded. If, after the contract has been concluded, it becomes known that kafa’ah was not maintained in some respect, this causes no harm and has no effect on the contract, because the conditions of marriage are considered at the time of contracting. If, at the time of marriage, the husband has an honorable profession, is capable of maintaining his wife, or is a righteous man, but circumstances later change so that he takes up a lowly profession, becomes unable to provide maintenance, or becomes immoral and sinful after the marriage, the contract remains valid. Circumstances change, and people’s conditions do not always remain the same. The wife must accept reality and hold fast to patience and God-consciousness. (If a girl is married without the consent of herself and her wali to a man lacking kafa’ah, some scholars hold that the marriage is invalid, while others hold that it is valid but that the woman has the right to annul it. This is the view of the Shafi’i school. The Hanafi view was mentioned in the discussion of guardianship.)
22. Marital Rights
When the marriage contract is validly concluded, its proper effects become effective, and the rights of the husband and wife necessarily arise as a consequence. These rights are of three kinds:
1. The wife’s rights over her husband
2. The husband’s rights over his wife
3. Their mutual rights.
When both husband and wife properly fulfill their respective responsibilities and duties, marital happiness, peace of mind, and contentment are ensured. A detailed account of these rights follows:
The mutual rights of husband and wife
1. Sexual enjoyment: The permissibility of mutual enjoyment and of both husband and wife satisfying each other. That is, just as it is lawful for the husband to obtain sexual pleasure and satisfaction from his wife, it is lawful for the wife to obtain the same sexual pleasure and satisfaction from her husband. Enjoying one another in this way and obtaining the pleasure of physical union through each other is the right of both husband and wife. This right cannot be attained without their joint participation and mutual cooperation, because sexual intercourse cannot take place alone.
2. Permanent marriage prohibitions by affinity: The wife is permanently unlawful to the husband’s father, grandfather, son, grandson, and daughter’s son. Similarly, the husband is permanently unlawful to the wife’s mother, daughter, grandson, and daughter’s son.
3. As soon as the marriage contract is concluded, the husband and wife inherit from each other. If either of them dies after the marriage, even before consummation, the other will inherit from the deceased.
4. A child born in the husband’s marital bed will be recognized as a descendant of that husband.
5. The couple shall treat each other fairly so that complete peace, harmony, and affection may be maintained between them. Allah says in verse 19 of Surah al-Nisa’:
وَعَاشِرُوهُنَّ بِالْمَعْرُوفِ
“Treat your wives fairly.”
The wife’s rights over her husband
The wife’s essential rights due from her husband are as follows:
1. Financial rights: namely, the mahr and maintenance.
2. Other rights: namely, fairness among multiple wives, if there is more than one, and causing the wife no harm. A detailed account follows:
23. The Mahr
One indication of the generosity and honor Islam has shown women is that it granted them the power to claim and take possession of their rights. In the Age of Ignorance, a woman had no rights. Her guardian would even freely consume and control her own property, denying her the opportunity to take possession of it or to use it. Islam removed all these injustices from her and prescribed a mahr for her.
It made the mahr the exclusive entitlement of the wife and did not permit even her father or closest relative to take anything from it without her consent. Allah says:
وَآتُوا النِّسَاءَ صَدُقَاتِهِنَّ نِحْلَةً فَإِنْ طِبْنَ لَكُمْ عَنْ شَيْءٍ مِنْهُ نَفْسًا فَكُلُوهُ هَنِيئًا مَرِيئًا
“Give women their bridal gifts graciously. But if they willingly give up something of them, then consume it with pleasure and satisfaction.” (Surah al-Nisa’: 4)
That is, give women their mahr as their rightful due, without expecting anything in exchange. Once they have taken ownership of the mahr without coercion, embarrassment, hesitation, deception, or fraud, if they give you some of it, you may consume and accept it freely. There is no sin in that.
But if the wife gives some part of her property out of embarrassment, fear, or deception, accepting it will not be lawful. Allah says:
وَإِنْ أَرَدْتُّمُ اسْتِبْدَالَ زَوْجٍ مَكَانَ زَوْجٍ وَآتَيْتُمْ إِحْدَاهُنَّ قِنْطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُّبِينًا وَكَيْفَ تَأْخُذُونَهُ وَقَدْ أَفْضَى بَعْضُكُمْ إِلَى بَعْضٍ وَأَخَذْنَ مِنْكُمْ مِيثَاقًا غَلِيظًا
Meaning: “If you wish to replace one wife with another and have given one of them a great amount of wealth, do not take anything back from it. Would you take it through false accusation and manifest sin? And how could you take it when you have been intimate with one another and they have taken from you a solemn covenant?” (Surah al-Nisa’: verses 20–21)
The mahr prescribed for the wife recognizes her economic ownership, while also satisfying her heart and encouraging her to accept the husband’s authority and power over her. Allah says:
الرِّجَالُ قَوَّامُونَ عَلَى النِّسَاءِ بِمَا فَضَّلَ اللَّهُ بَعْضَهُمْ عَلَى بَعْضٍ وَبِمَا أَنْفَقُوا مِنْ أَمْوَالِهِمْ
“Men are in charge of women because Allah has given some of them superiority over others and because they spend from their wealth.” (al-Nisa’: 34)
At the same time, it strengthens the relationship between them and deepens their affection.
The Amount of the Mahr
Islamic law has set no limit for the mahr, because people’s levels of poverty and wealth vary. Their degrees of prosperity and hardship also differ. In addition, each side has its own customs, habits, traditions, and culture. Therefore, rather than setting a limit, it has left the matter to each person’s means and ability. Each person will determine it according to his or her circumstances and the customs of the respective tribe. All the relevant texts and indications show that anything possessing lasting value may be given as mahr, whether little or much. A metal ring, a basket of dates, or instruction in any part of the Qur’an may be given as mahr if both parties agree.
It is narrated from Amir ibn Rabi’ah that a woman from Banu Fazara married, accepting a pair of shoes as her mahr. The Messenger of Allah (peace and blessings be upon him) said: “Have you agreed to give yourself in exchange for a pair of shoes?” She said: “Yes.” The Messenger of Allah permitted her to do so. —Ahmad, Ibn Majah, and al-Tirmidhi.
It is narrated from Sahl ibn Sa’d that a woman came to the Messenger of Allah (peace and blessings be upon him) and said: “O Messenger of Allah, I offer myself to you.” She then remained standing for a long time. A man stood up and said: “O Messenger of Allah, if you have no need of this woman, marry her to me.” The Messenger said: “Do you have anything with which to give her a mahr?” He said: “I have nothing except this garment of mine.” The Messenger of Allah said: “If you give her your garment, you will remain without a garment. So go and find something else.” He said: “I cannot find anything else.” The Messenger said: “Look, even if you find an iron ring.” He searched but found nothing. The Messenger of Allah said: “Do you know any part of the Qur’an?” He said: “Yes, such-and-such surah.” The Messenger said: “Very well, I marry the two of you in exchange for what you know of the Qur’an”—that is, for teaching her that much. (Bukhari and Muslim.) It is narrated from Abu Hurayrah that the Messenger specified twenty verses.
It is narrated from Anas that Abu Talhah proposed to Umm Sulaym. Umm Sulaym said: “By Allah, a man like you cannot be rejected. But you are an unbeliever and I am a Muslim; it is not lawful for me to marry you. However, if you accept Islam, that will be my mahr. I will ask nothing else of you.” Thus, that became her mahr.
These hadiths prove that anything of even slight value may be designated as a mahr. Even a service may be designated as a mahr; teaching the Qur’an is a service. The Hanafi jurists set the minimum mahr at ten dirhams, while the Malikis set it at three dirhams. However, there is no reliable evidence for fixing this minimum. Hafiz Ibn Hajar said that several hadiths concerning the minimum mahr have been found, but none of them has been established as authentic. Reviewing the cited hadiths, Ibn al-Qayyim said: Umm Sulaym accepted as her mahr the benefit that would result from Abu Talhah’s accepting Islam, and she was prepared to give herself to him in exchange for it. This was dearer to her than her husband’s wealth. In reality, the mahr was prescribed as the wife’s due for her benefit. When she agreed to his religious knowledge and piety, and was satisfied with her husband learning the Qur’an and accepting Islam, that became the best mahr—the most beneficial mahr. Thus, this was not a marriage without a mahr. It cannot be compared with designating three or ten dirhams as the mahr.
The woman who offered herself to the Messenger (peace and blessings be upon him) is not comparable to this. Her case was exclusively specific to the Messenger, because when she offered herself to him she did not consider a wali or a mahr. In the marriages we contract today, however, there is a wali and there is a mahr, even if that mahr is not wealth whose value can be measured in currency. In this case, the woman accepted the husband’s teaching her the Qur’an as a substitute for property, because she would benefit from it. She did not offer herself without a mahr in the manner of that woman, nor did she offer herself as one might give away an item of property. This is the substance of the hadiths cited above. Some have opposed this view, saying that the mahr must be property and cannot be fulfilled through a service or benefit. According to Abu Hanifah and Ahmad, the husband’s knowledge or teaching does not count as a mahr. According to Imam Abu Hanifah, a mahr below ten dirhams is not valid, and according to Malik, one below three dirhams is not valid. There are also other views for which there is no support in the Qur’an, Sunnah, ijma’, analogy, or the statement of any imam or jurist. Those who claim that the hadiths cited above were specific to the Messenger, abrogated, or contradicted by the actual practice of the people of Madinah have no evidence for these claims. Moreover, the principles of fiqh oppose them. Sa’id ibn al-Musayyab, the eminent Tabi’i and leading scholar of the people of Madinah, married his daughter for only two dirhams. No one opposed him; rather, it was recognized as a sign of his virtue and generosity. Abd al-Rahman ibn Awf married for a mahr of five dirhams, and the Messenger approved it. In reality, no one except Allah and His Messenger, the Lawgiver, can determine the amount of the mahr. If one wishes to increase the mahr, no limit has been set for it. It is reported that Umar, may Allah be pleased with him, once stood on the pulpit and prohibited setting a mahr above four hundred dirhams. Immediately afterward, a Qurayshi woman came to him from the pulpit and objected: “Have you not read this verse of the Qur’an: ‘Even if you have given one of them a great amount of wealth, do not take any of it back’ (Surah al-Nisa’)?” Umar immediately said: “O Allah, forgive me. Everyone knows more fiqh than Umar.” He then returned to the mosque, ascended the pulpit, and said: “I had prohibited you from giving a mahr exceeding four hundred dirhams. Now I say that anyone may give as much as he wishes from his wealth.” (Sa’id ibn Mansur, Abu Ya’la.) It is narrated from Abdullah ibn Mus’ab that Umar said: “Do not give a mahr exceeding forty ounces of gold. Whoever gives more than that will have the excess mahr deposited in the public treasury.” A woman said: “You have no right to do this.” He asked: “Why?” She replied: “Because Allah says: ‘Even if you have given a great amount of wealth, do not take any of it back.’” Umar said: “A woman was correct, and a man was mistaken.”
It is Disliked to Make the Mahr Excessively Large
In short, Islam is eager to create as many opportunities as possible for men and women to marry, so that everyone may enjoy the opposite sex in a lawful manner. But this is impossible until means are secured that make marriage easy and affordable. Marriage should be so easy that it is accessible to the largest segment of the poor in society, because spending large sums is extremely difficult for them. Therefore, Islam has discouraged making the mahr excessively large and has taught that the smaller the mahr, the more beneficial and blessed the marriage will be. A small mahr is a sign of a woman’s good fortune. It is narrated from A’ishah, may Allah be pleased with her, that the Messenger of Allah (peace and blessings be upon him) said: “The marriage involving the least expense is the most blessed.” He also said: “A woman’s good fortune lies in the smallness of her mahr, the ease of her marriage, and the sweetness of her character; her misfortune lies in the largeness of her mahr, the difficulty of her marriage, and the ugliness of her character.” Many people are unaware of these teachings, and many oppose them and engage in practices of the Age of Ignorance. Because they engage in these ignorant practices, they bargain over the mahr and refuse to consent to marriage until the groom’s family gives substantial wealth. The bride’s family demands so much money from the groom’s family that he struggles to provide it, as though a woman were a commercial commodity over which one could bargain. This evil custom has created social problems. People of every class, men and women alike, continue to suffer from problems arising from marriage. In short, the marriage market has consequently become stagnant, and unlawful acts have become easier in society than lawful ones.
Immediate and Deferred Mahr
The mahr may be paid immediately at the time of the contract or deferred. Part may be paid immediately and the remainder deferred. This depends on people’s customs and practices. However, it is recommended that at least part of it be paid immediately. Ibn Abbas, may Allah be pleased with him, narrated: “The Messenger of Allah (peace and blessings be upon him) forbade Ali, may Allah be pleased with him, from consummating his marriage with Fatimah without giving her anything. Ali said: ‘I have nothing.’ The Messenger said: ‘Where is your Hutami armor?’ Ali then gave that armor to Fatimah. —Abu Dawud, al-Nasa’i, and al-Hakim.
On the other hand, Abu Dawud and Ibn Majah narrated from A’ishah, may Allah be pleased with her, that she said: “The Messenger of Allah (peace and blessings be upon him) ordered me to send a woman to her husband and into the bridal chamber before he had given her any mahr.” This hadith proves that the wife may enter the bridal chamber before the husband has paid any part of the mahr. The hadith of Ibn Abbas proves that it is recommended not to consummate the marriage without paying at least part of the mahr.
Al-Awza’i said: It was considered preferable not to consummate the marriage without paying part of the mahr. Al-Zuhri said: We learned from the Sunnah that it is improper for a man to consummate his marriage with his newlywed wife without giving her at least some maintenance. This was the practice of the Muslims.
However, if the contract stipulated that part of the mahr be paid immediately, and the court ordered that it be paid before consummation, the husband nevertheless has the right to have intercourse with his wife even if he has not paid it immediately. The wife, for her part, has the duty to submit herself to her husband and not prevent intercourse.
Ibn Hazm said: Whoever marries after specifying a mahr, or without specifying one, has the right to have intercourse, whether the wife likes it or not. The husband will be ordered to pay the mahr he specified, whether he likes it or not. But he may not be prevented from intercourse on that account. He will be permitted to have intercourse immediately after the contract and will also be compelled to pay the wife’s mahr immediately. The mahr will be collected from whatever is found in his possession. If no mahr was specified beforehand, he will be ordered to pay the customary mahr. If the husband and wife agree to an amount lower or higher than that, then that is what must be paid. Abu Hanifah said: If a man marries with a deferred mahr, he has the right to have intercourse with his wife, whether she likes it or not, because she herself agreed to defer the mahr. This cannot cancel the husband’s right to intercourse. If, however, the contract stipulated immediate payment of all or part of the mahr, intercourse will not be lawful for the husband until he pays the amount stipulated for immediate payment. The wife also has the right to prevent intercourse until the amount whose immediate payment was unanimously stipulated has been paid.
Ibn al-Mundhir said: All the scholars whose names are known to us agree that the wife has the right to prevent the husband from intercourse until the payable mahr is given. The author of al-Muhalla, reviewing this view, said: No Muslim disagrees that from the moment the marriage contract is concluded, the two are husband and wife. Thus, each is lawful for the other. Whoever prevents intercourse until he gives the wife the mahr or something else obstructs the union of husband and wife without any clear instruction from Allah and His Messenger.
But what we have said is the true and correct position. That is, the husband may not be prevented from having intercourse with his wife. Nor may anyone deprive the wife of the dower due to her from her husband. Whether she likes it or not, the husband may have intercourse with her, and her dower shall be paid from whatever property the husband possesses, whether he likes it or not. A sound hadith has been narrated from the Messenger (peace and blessings be upon him) to this effect: “Give every rightful person his right.”
Circumstances in Which the Full Dower Becomes Obligatory
The full dower becomes obligatory as soon as any of the following circumstances occurs:
1. When actual sexual intercourse takes place between the husband and wife: Allah says: “If you wish to replace one wife with another and have given one of them a great amount, do not take anything back from it. Would you take it back through false accusation and manifest sin? And how could you take it back when you have had intercourse with one another and they have taken from you a solemn covenant?” (Surah al-Nisa, verses 20–21)
2. If either the husband or the wife dies before sexual intercourse. This is the unanimous view.
3. According to Abu Hanifah, when the husband meets his bride in private in circumstances in which sexual intercourse is possible, the full stipulated dower becomes due to the bride. Such privacy means that the two meet in a place where both are certain that no one will become aware of their presence. Neither of them is in a condition that, according to the Sharia, prevents intercourse—for example, one of them is observing an obligatory fast, she is menstruating, or there is an obstacle that is practically impossible to overcome, such as an illness that currently makes intercourse impossible. Alternatively, there may be an ordinary obstacle, such as a third person being present between them. The evidence Imam Abu Hanifah cited in support of his view is that Abu Ubaydah narrated from Zayd ibn Abi Awfa that the decision of the Rightly Guided Caliphs was that when the door of the room was closed and the private parts were uncovered, the dower became due. Waki‘ narrated from Nafi‘ ibn Jubayr: The Companions of the Messenger (peace and blessings be upon him) used to say that when the private parts were uncovered and the door was closed, the dower became due.
He also argued that since the wife had fully submitted herself, the dower must become due in return. Imam al-Shafi‘i, Malik, and Dawud opposed this view, saying that the full dower does not become due without intercourse.
Imam Malik, however, said that when the husband advances upon his wife intending intercourse and she lies down in a position suitable for intercourse, the dower becomes due even if intercourse does not actually take place.
Private seclusion in which intercourse is possible does not make more than half the dower due. Allah says:
وَإِن طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَمَنْ فَرِيضَةً فَنِصْفُ مَا فَرَمْتُمْ
“If you divorce them before you have touched them, but after you have stipulated a dower for them, then half of what you stipulated is due.” (Surah al-Baqarah, verse 237)
That is, if divorce occurs before touching her, half of the stipulated dower is due to the wife. Touching here means actual and complete sexual intercourse. Merely meeting in private does not constitute sexual intercourse. Therefore, the full dower does not become due in that case.
Shurayh said, “I have not heard that Allah Most High mentioned any door or private parts in the Qur’an. If the husband claims that he touched his wife, he must pay her half the dower.” It is narrated from Ibn Abbas that he used to say: When a man’s wife comes to him, he then divorces her and claims that he did not touch her, half the dower becomes obligatory upon him. Abd al-Razzaq narrated from Ibn Abbas (may Allah be pleased with him): “The full dower does not become due from the husband until he has had intercourse with his wife.”
The Full Dower Becomes Due for Intercourse in an Invalid Marriage
When a man has intercourse with his wife after marriage and the marriage is subsequently proven invalid for some reason, the full dower becomes obligatory. Abu Dawud narrated: “Basrah ibn Aqsam married a certain virgin girl, and when he had intercourse with her, he discovered that she was pregnant. When he informed the Messenger (peace and blessings be upon him), he said, ‘Since you had intercourse with her, she is entitled to a dower.’ … Then he separated the two of them.”
This hadith shows that in an invalid marriage, the stipulated dower must be paid in full because intercourse took place. It also shows that if pregnancy resulting from adultery is discovered after marriage, the marriage becomes invalid.
Marriage Without Stipulating a Dower
Many scholars hold that a marriage is valid without stipulating a dower, because they cite:
لَا جُنَاحَ عَلَيْكُمْ إِنْ طَلَّقْتُمُ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً
“There is no blame upon you if you divorce women before having intercourse with them or stipulating a dower for them.” (Surah al-Baqarah, verse 236)
Since divorce cannot occur except after marriage, this verse proves the validity of marriage without stipulating a dower. But if someone neither stipulates a dower nor imposes the condition that he is not obliged to pay one, then according to the Maliki school the marriage is invalid. Ibn Hazm says: “If someone stipulates that he is not obliged to pay a dower, the marriage is void, because the Messenger (peace and blessings be upon him) said, ‘Any condition not mentioned in the Book of Allah is invalid.’” This condition is not found in the Qur’an. Rather, the Qur’an invalidates it by saying: “Give women their dowers graciously.” Therefore, the marriage mentioned above is void and invalid. According to the Hanafis, however, this marriage is permissible, because the dower is neither a condition nor an integral pillar of marriage.
Mahr al-Mithl Becomes Obligatory Because of Intercourse or Death Before Intercourse
When the husband has intercourse with his wife or dies before intercourse, the wife is entitled to mahr al-mithl and inheritance. Abu Dawud narrated from Abdullah ibn Mas‘ud that, in such a case, he said: “I express my own opinion on this matter. If it is correct, it is from Allah; if it is wrong, it is from me. In such a case, the wife receives a dower equal to that of another woman like her—neither less nor more. She must observe the waiting period and is entitled to inheritance.” Ma‘qal ibn Yasar then stood and said: “I testify that you have issued the same judgment that the Messenger of Allah (peace and blessings be upon him) issued concerning Barwa‘ bint Washiq.” This was also the view of Abu Hanifah, Ahmad, Dawud, and al-Shafi‘i.
What Is Mahr al-Mithl?
Mahr al-mithl is the dower that a wife is entitled to receive, at the time of the marriage contract, equal to that received by women comparable to her, considering the characteristics that affect the amount of the dower—such as age, beauty, wealth, intelligence, religion, virginity or non-virginity, place of residence, and other such qualities. Having or not having children is also one such characteristic, because differences in these qualities generally cause differences in the value of a wife’s dower. Among her paternal relatives whose comparability is considered are her sisters, paternal aunts, and paternal and maternal cousins. Ahmad said that mahr al-mithl should be determined by comparing it with the dowers of the wife’s relatives on both her father’s and mother’s sides. If no paternal female relative is found whose qualities resemble those of the woman for whom mahr al-mithl is being determined, then the dower equal to that of an unrelated woman from a family comparable to her father’s family shall be considered her mahr al-mithl.
Marrying a Minor Girl for Less Than Mahr al-Mithl
The view of al-Shafi‘i, Dawud, Ibn Hazm, and Abu Yusuf and Muhammad among the Hanafis is that it is not permissible for a father to marry off his minor daughter for less than mahr al-mithl, and his decision need not be accepted in this matter. Her dower must be raised to the level of mahr al-mithl, because the dower is exclusively the daughter’s right and property, and her father has no authority to make decisions concerning her property. Abu Hanifah said that if a father marries off his minor daughter and stipulates a low dower, it is valid and binding upon the daughter. However, no one other than the father or grandfather may do this.
When Does Half the Dower Become Obligatory?
If the amount of the dower was determined at the time of the marriage contract and the wife is divorced before intercourse, half the dower becomes obligatory upon the husband. Allah says:
وَإِنْ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ وَقَدْ فَرَضْتُمْ لَهُنَّ فَرِيضَةً فَنِصْفُ مَا فَرَضْتُمْ إِلَّا أَنْ يَعْفُونَ أَوْ يَعْفُوا الَّذِي بِيَدِهِ عُقْدَةُ النِّكَاحِ وَأَنْ تَعْفُوا أَقْرَبُ لِلتَّقْوَى وَلَا تَنْسَوُا الْفَضْلَ بَيْنَكُمْ إِنَّ اللَّهَ بِمَا تَعْمَلُونَ بَصِيرٌ
Meaning: “If you divorce women before touching them, but after having stipulated a dower for them, then half of what you stipulated is due. However, this is excepted if the wives waive it, or the one in whose hand is the marriage bond—the husband or guardian—waives it. To waive is nearer to piety. Do not forget graciousness among yourselves. Surely Allah sees all that you do.” (Surah al-Baqarah, verse 237)
The Obligation of Mut‘ah
When the husband divorces his wife before intercourse and no dower had previously been stipulated, he must give her some provision as compensation. This is a kind of gracious farewell. Allah says: “Then either retain them honorably or release them with kindness.” (Surah al-Baqarah, verse 229)
The scholars unanimously agree that a woman for whom no dower was stipulated and with whom no intercourse took place is entitled after divorce to nothing except mut‘ah, that is, some provision. The type and amount of this mut‘ah vary according to the husband’s financial circumstances. It has no fixed amount. Allah says:
لَا جُنَاحَ عَلَيْكُمْ إِنْ طَلَّقْتُمُ النِّسَاءَ مَا لَمْ تَمَسُّوهُنَّ أَوْ تَفْرِضُوا لَهُنَّ فَرِيضَةً وَمَتِّعُوهُنَّ عَلَى الْمُوسِعِ قَدَرُهُ وَعَلَى الْمُقْتِرِ قَدَرُهُ مَتَاعًا بِالْمَعْرُوفِ حَقًّا عَلَى الْمُحْسِنِينَ
“There is no blame upon you if you divorce women before touching them and without having stipulated a dower for them. In that case, provide for them according to the customary practice: the wealthy according to his means and the poor according to his means. It is an obligation upon those who do good.” (Surah al-Baqarah, verse 236)
When Is the Dower Waived?
If separation occurs at the wife’s initiative before intercourse, the husband is released from the entire dower obligation and does not have to give her even a penny. Examples of separation initiated by the wife include her renouncing Islam, or dissolving the marriage because of the husband’s insolvency or another defect. It also includes dissolution because of a defect in the wife, or because either the husband or wife dissolves the marriage after she attains maturity and gains the right of choice, and similar cases. No provision is due in such circumstances either, because she herself relinquished this right. Likewise, if before intercourse the wife releases the husband from the dower obligation or gives it to him, the husband is released from the dower, because the wife herself relinquished her unrestricted right.
Increasing the Dower After the Marriage Contract
Abu Hanifah said that if the husband has had intercourse with his wife or dies, any increase he makes to the dower after the marriage contract is effective. If he divorces her before intercourse, the increase is not effective; rather, she is entitled only to half of the stipulated dower. Malik held that the increase is effective if intercourse took place. If he divorces her before intercourse, he must pay half of the original dower as well as half of the increase. If the husband dies before intercourse and before the wife receives the half of the dower due to her, the entire increase is void, and she receives only the amount stipulated at the time of the marriage contract. According to al-Shafi‘i, the increased dower is a new gift: it is valid if received, otherwise it is void. Ahmad said that the increased dower is governed by the same ruling as the original dower.
Public and Secret Dowers
If both parties to a marriage contract secretly stipulate one dower and publicly stipulate a higher one, then dispute with each other and bring the matter before a court, how should the court decide? Abu Yusuf said that the court should rule in favor of the dower they secretly agreed upon, because it reflects their true intention and was the purpose of the contracting parties. Others said that the publicly stipulated dower is effective, because it is the one mentioned in the contract. Allah knows what occurred secretly; judgments are based only on outward circumstances. This was the view of Abu Hanifah, Muhammad, Ahmad, al-Awza‘i, al-Sha‘bi, al-Shafi‘i, Ibn Abi Layla, and Abu Ubayd.
Taking Possession of the Dower
When the wife is a minor, her father has the right to take possession of her dower because he is the guardian of her property. Thus he may take possession of it just as he may take possession of the price of something he has sold. If she has neither a father nor a grandfather, her property guardian has the right to take possession of her dower. After receiving it, the guardian must deposit it with the court as a trust and may not use it without the permission of the relevant court. In contrast, if an adult non-virgin woman is mature and sound-minded, no one may take possession of her dower without her permission, because only she has authority over her property. If her father takes possession of the dower in her presence and she remains silent, this counts as her permission and the husband is discharged from liability. If an adult virgin is sound-minded and mature, her father may not take possession of her dower without her permission, just as he may not take the dower of a non-virgin woman. Some, however, have said that the father may take possession of it without her permission, because this is the customary and recognized practice and a virgin is treated as a minor.
24. Dowry
Dowry consists of the items that the wife and her family prepare for her so that they remain with her during her life with her husband. It is a customary and recognized social practice: the wife and her family prepare the dowry and furnish the bride’s home. This is a way of creating a joyful atmosphere for the bride on the wedding night. al-Nasa’i narrated from Ali (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) gave Fatimah, as dowry, a set of valuable garments, a water skin, and a cushion made from the fragrant plant idhkhir. This is merely an established social custom. Legally, the responsibility for furnishing the home and preparing furniture, bedding, household goods, and all necessary items rests with the husband. The wife has no responsibility for these things, regardless of the amount of her dower. Even if the dower was increased specifically to acquire household goods, this remains the wife’s responsibility. The dower is exclusively hers in return for the husband’s fulfillment of his sexual desire through her. It is not intended to acquire furnishings for married life. The dower is the wife’s absolute right; neither her father, husband, nor anyone else has any right or claim to it.
According to the Maliki school, however, the wife does not have exclusive ownership of the dower. Therefore, she may not spend any of it on her living expenses or repay her debts from it. In cases of pressing need she may spend some of it, and if the dower is substantial, she may repay a small portion of her debt from it.
The dower may not be spent on meeting the wife’s personal and exclusive needs, because according to established social custom and practice, furnishing the home for her husband is her responsibility.
She must furnish the home with the money from the dower received immediately before the wedding night. If she receives none of the dower immediately before the wedding night, this will not remain her responsibility. However, if there is a stipulation or established custom to that effect, she must furnish the home with the dower received after the wedding night.
The drafters of family law followed Imam Malik’s school on this matter. Article 66 of the Family Law states: “It is the wife’s duty to prepare and adorn herself in a balanced manner with the dower received immediately before the wedding night, unless there is agreement on another matter. However, if she receives none of the dower immediately, she has no responsibility for preparation or adornment. She must, nevertheless, do whatever is required according to agreement and recognized social custom.” —Family Law, Dr. Yusuf Musa, p. 214.
When the wife buys household goods with her own money, or her father buys them for her, they are her exclusive and absolute property. The husband or anyone else has no right to them. However, she may permit her husband and his guests to use them if she wishes, or she may refuse permission. If she does not wish to permit their use, she cannot be forced to do so. According to Imam Malik, it is permissible for the husband to use the wife’s household goods according to customary practice.
25. The Wife’s Living Expenses, Namely Maintenance (Nafaqah)
Living expenses here means the costs of providing the wife’s food, housing, service, and medical care. These are due from the husband even if the wife is wealthy herself. Their obligatory nature is established by the Qur’an, the Sunnah, and consensus. Their obligation is established by the Qur’an through the following verses:
1. Allah Most High says:
وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ لَا تُكَلِّفُ نَفْسًا إِلَّا وُسْعَهَا
“The father’s duty is to provide them—the mothers—with food and clothing according to what is fair. No soul is burdened beyond its capacity.” (Surah al-Baqarah, verse 233)
In this verse, “provision according to what is fair” means sufficient food and clothing according to the rules of the Sharia and recognized custom—neither less than necessary nor more.
2. Allah also says:
أَسْكُنُوهُنَّ مِنْ حَيْثُ سَكَنْتُمْ مِنْ وُجْدِكُمْ وَلَا تُضَارُوهُنَّ لِتُضَيِّقُوا عَلَيْهِنَّ وَإِنْ كُنَّ أُولَاتِ حَمْلٍ فَأَنفِقُوا عَلَيْهِنَّ حَتَّى يَضَعْنَ حَمْلَهُنَّ
Meaning: “House them, during their waiting period, wherever you reside, according to your means, and do not harass them so as to make things difficult for them. If they are pregnant, then spend on them until they deliver their burden.” (Surah al-Talaq, verse 6)
3. Allah also says:
لِيُنْفِقْ ذُو سَعَةٍ مِنْ سَعَتِهِ وَمَنْ قَدَرَ عَلَيْهِ رِزْقُهُ فَلْيُنْفِقْ مِمَّا آتَاهُ اللَّهُ لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا مَا آتَاهَا
Meaning: “Let the wealthy man spend according to his wealth, and whoever has limited provision, let him spend from what Allah has given him. Allah does not burden any soul beyond what He has given it.” (Surah al-Talaq, verse 7)
Its obligation is established by the Sunnah, or hadith, through the following hadiths:
1. Muslim narrated that the Messenger (peace and blessings be upon him) said during the Farewell Pilgrimage:
فَاتَّقُوا اللَّهَ فِي النِّسَاءِ فَإِنَّكُمْ أَخَذْتُمُوهُنَّ بِكَلِمَةِ اللَّهِ وَاسْتَحْلَلْتُمْ فُرُوجَهُنَّ بِكَلِمَةِ اللَّهِ وَلَكُمْ عَلَيْهِنَّ أَلَّا يُوطِئْنَ فُرُشَكُمْ أَحَدًا تَكْرَهُونَهُ فَإِنْ فَعَلْنَ ذَلِكَ فَاضْرِبُوهُنَّ ضَرْبًا غَيْرَ مُبَرِّحٍ وَلَهُنَّ عَلَيْكُمْ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ
Meaning: “Fear Allah concerning women, for you have taken them by Allah’s covenant and made their private parts lawful by Allah’s covenant. They have the right that they do not allow anyone whom you dislike to tread upon your beds. If they do so, then strike them without causing injury. They are entitled to provision and clothing according to what is fair, and it is your duty to provide these for them in all circumstances.”
2. al-Bukhari and Muslim narrated from Aishah (may Allah be pleased with her): Hind bint Utbah said, “O Messenger of Allah, Abu Sufyan, my husband, is extremely miserly. Apart from what I take without his knowledge, he gives nothing to me or my child.” The Messenger of Allah (peace and blessings be upon him) said, “Take what is sufficient for you and your child according to recognized custom and practice.”
3. Mu‘awiyah al-Qushayri (may Allah be pleased with him) said: I asked, “O Messenger of Allah, what rights do our wives have over us?” He said, “Feed her when you feed yourself, clothe her when you clothe yourself, do not strike her in the face, and if you reproach her or temporarily abandon relations with her, do so while remaining in the home.”
Its obligation is established by consensus as follows: Ibn Qudamah said that if husbands are adults, the responsibility of maintaining their wives rests upon them. The scholars agree on this. However, the husband is not responsible for maintaining a wife who is disobedient to him. Ibn al-Mundhir and others said that this teaches that the wife is under her husband’s authority: he prevents her from working and earning a livelihood. Therefore, providing her living expenses is the husband’s duty.
The Basis for the Obligation of Maintenance
The Shariah has placed the responsibility of maintaining the wife upon the husband solely because, by virtue of the requirements of a valid marriage contract, the wife is subject to her husband and confined by his claims and rights, so that he may enjoy her permanently and continuously and fulfill his sexual desire through her. She is obliged to obey him, remain in his home at all times, manage and administer his household, and raise his children. In return, the husband is obliged to meet all her needs and maintain her so long as their marital relationship continues and no disobedience, rebellion, or other cause preventing maintenance occurs. The generally accepted and universally recognized principle in this regard is: “The maintenance of one who is confined for the protection and service of another’s rights is the responsibility of the person who confines her for his own benefit.”
Conditions for Entitlement to Maintenance
The following conditions apply for entitlement to maintenance:
1. The marriage contract must be valid and sound.
2. The wife must surrender herself to her husband.
3. The wife must allow her husband sexual relations according to his wishes.
4. The wife must not object to moving to wherever the husband wishes to establish their residence. (However, if she believes that her husband intends to harm her, or fears for the safety of her life and property if she moves, she may refuse.)
5. Both must be capable of sexual relations.
If any one of these conditions is absent, maintenance is not obligatory. For if the contract is not valid, but rather invalid or defective, separation between the husband and wife becomes unavoidable and obligatory in order to prevent disorder and corruption. Likewise, if the wife does not surrender herself to her husband, does not allow him the opportunity to enjoy her, or does not agree to go wherever he wishes to go, the husband is not obliged to maintain her in such circumstances. The confinement of the wife, which is the basis for the obligation of maintenance, is absent here. This is like a seller who refuses to deliver sold goods to the buyer, or a buyer who wishes to take delivery somewhere other than the place where he made the purchase; he is not entitled to the price of those goods. Furthermore, the Messenger of Allah, peace and blessings be upon him, consummated his marriage with Aishah, may Allah be pleased with her, two years after marrying her, and maintained her only from the time of consummation; he did not consider maintenance for the preceding period necessary. If the wife is so young that intercourse with a girl of her age is not possible, although she has surrendered herself to her husband, then according to the Maliki and Shafi‘i schools, maintenance is not obligatory. This is because the opportunity for sexual relations is not fully present. Therefore, she is not entitled to maintenance in exchange for it. If the wife is mature and the husband is a minor, maintenance is obligatory. The wife has not failed on her part to permit him to enjoy her; the opportunity could only not be taken from the husband’s side. Therefore, maintenance is necessary. Similarly, if the wife surrenders herself to her husband, and the husband, despite being mature, abandons her and flees, maintenance is also obligatory in that case. The operative opinion among the Hanafis is that if a husband keeps his minor wife in his home in order to bring her close and make her attached to him, maintenance is obligatory upon him because he consented to this confinement, even though its purpose remains unfulfilled. But if he does not keep her in his home, maintenance is not obligatory.
(This is the opinion of Imam Abu Yusuf. The opinions of Abu Hanifah and Muhammad are similar to that of al-Shafi‘i. Their reasoning is that keeping the wife confined and not keeping her confined are equivalent. Since the purpose of marriage is not achieved here, maintenance is not obligatory.)
When the wife surrenders herself to her husband but suffers from an illness that makes intercourse impossible for him, maintenance is obligatory upon the husband. Depriving the wife of maintenance because she is ill is neither sound marital conduct nor consistent with the good treatment Allah has commanded. A wife whose vaginal passage is closed, and one who is so weak or has such a physical or mental disability that the husband is unable to have intercourse with her, likewise falls under the category of an ill wife. Similarly, if the husband is impotent, has a severed penis, suffers from an illness preventing intercourse with his wife, or is imprisoned because of debt or a crime he committed, he is still obliged to maintain his wife. The wife has not failed in granting the opportunity for intercourse; all inability in this case lies with the husband. He cannot use this inability as an excuse to escape his responsibility. It only deprives him of his own right. When the wife leaves her husband’s home for another place without a Shariah-valid reason and without his permission, travels without his permission, or enters ihram for Hajj, the husband is not obliged to maintain her. If she travels or enters ihram with his permission, or if he accompanies her, he is not relieved of the obligation of maintenance. She has not disobeyed him in this case or gone beyond his control. Conversely, if the wife, while living with her husband in their own home, prevents him from having intercourse with her, does not ask him to move to another home, and he does not object to remaining there, maintenance is not obligatory upon him. But if she asks him to move and he refuses, while she refuses to allow him intercourse, his obligation of maintenance is not annulled.
Likewise, if the wife is imprisoned for a crime, or is jailed because of debt or unjustly, the husband is not obliged to maintain her. However, if the husband himself detains her because of a debt owed to her, he is obliged to maintain her, since in this case he himself has forfeited his right to her service. Similarly, if a kidnapper abducts the wife and comes between her and her husband, she is not entitled to maintenance for as long as she remains abducted. Likewise, if a husband prohibits a working wife from leaving the home to perform her work and she disobeys him, she is not entitled to maintenance. Similarly, when the wife deprives her husband of sexual relations by observing a voluntary fast or voluntary seclusion, she does not receive maintenance either. In such cases she has deprived him of his right to intercourse without a Shariah-valid reason. Had she done so for a Shariah-valid reason, she would have remained entitled to maintenance—for example, if she disobeyed him because the residence was unlawful or because her husband was not safe for her life and property.
When the Wife Alone Accepts Islam, without Her Husband
If both husband and wife are non-Muslims and, after intercourse, the wife alone accepts Islam, without her husband, her right to maintenance is not annulled. This is because intercourse with the wife has become impossible due to the husband. He was able to remove this cause by accepting Islam. Therefore, he is not relieved of the obligation to maintain her in this case. For the same reason, a Muslim husband who disappears, leaving his wife behind, is not relieved of the obligation of maintenance.
If the Husband Becomes an Apostate
If the husband becomes an apostate after intercourse, his responsibility to maintain his wife is not annulled. The reason he is now deprived of the right to intercourse is one he himself created. He could have removed it by returning to Islam. Conversely, if the wife becomes an apostate, she will not receive maintenance from her husband, because she has herself sinfully blocked the way to intercourse, just as a disobedient wife does.
The Zahiri School’s Opinion on Entitlement and Non-entitlement to Maintenance
The Zahiri school holds a distinctive opinion regarding the basis for the obligation of maintenance. According to them, the marital relationship itself is the basis of maintenance. As long as the marital relationship continues, the wife receives maintenance. On this basis, they rule that maintenance is obligatory even for a minor wife and a wife disobedient to her husband. The Zahiris do not accept the conditions imposed by other jurists for this purpose. Ibn Hazm says: From the moment the marriage contract is concluded, the husband is obliged to maintain his wife, whether they have begun married life or not, whether she is an adult or an infant in the cradle, wealthy or poor, fatherless or not, a virgin or previously married, free or enslaved. Maintenance must in all circumstances be provided according to the husband’s means. (Al-Muhalla, volume 10)
Ibn Hazm says that Abu Sulayman, his students, and Sufyan al-Thawri stated: Maintenance for a minor wife becomes obligatory from the moment the marriage contract is concluded.
When al-Hakam ibn Utaybah was asked about a woman who had left her husband’s home in anger, he replied that she must be maintained. No statement has been reported from any Companion that a disobedient wife need not be maintained; this has only been narrated from al-Nakha‘i, al-Sha‘bi, Hammad, al-Hasan, and al-Zuhri. It is not known what evidence al-Nakha‘i and others cited in support of this view. They merely said: Maintenance is compensation for intercourse. When she does not allow intercourse, she does not receive maintenance.
The Amount and Basis of Maintenance
When a wife lives with her husband, and he provides her maintenance and adequately supplies her with food, clothing, and so on, she cannot demand that the amount of maintenance be fixed by the husband. He is fulfilling his responsibility. But if the husband is so miserly that he does not provide her with adequate maintenance, or unjustly leaves her without maintenance, she has the right to demand that a specific amount be allocated for her food, clothing, housing, and other needs. The court may rule in her favor concerning maintenance, and if the validity of her claim is established, it may impose the obligation of maintenance upon the husband. If the wife is upright and God-fearing and does not take more than she needs, she may herself take a reasonable amount of the maintenance she needs from her husband’s property. She may take it without his knowledge, because he has refrained from fulfilling his responsibility and owes her maintenance. When an entitled person is able to take what is owed to her with her own hand, she has the right to take it. The basis for this right is the hadith narrated from Aishah by Ahmad, al-Bukhari, Muslim, Abu Dawud, and al-Nasa’i:
“Hind, the wife of Abu Sufyan, said, ‘O Messenger of Allah, Abu Sufyan is a miserly man. He does not give me and my child the minimum necessary maintenance. Apart from what I take without his knowledge, he gives me nothing.’ The Messenger said, ‘Take what is reasonably and lawfully sufficient for you and your child.’” This hadith proves that the amount of maintenance is determined in light of the wife’s minimum needs, subject to being fair and lawful—that is, what is known and accepted by all parties as the most widely supported standard in the wife’s family. This varies according to place, time, circumstances, and individuals. According to the author of Rawdat al-Nadiyyah, minimum need in the matter of food means everything the wife requires, including fruit. It also includes the additional expenses incurred during various festivals and other things generally regarded as continually necessary, the absence of which causes harm, distress, or discomfort. Medicines are also included. Allah alludes to this when He says: “The father is responsible for providing the mothers’ sustenance in a fair manner.” In fact, this verse unambiguously describes one form of maintenance: the person responsible for maintenance must provide the livelihood of the person whose expenses he is responsible for meeting. What this livelihood includes has been mentioned above. He then cites the opinion of some jurists that the cost of medicines and doctors’ fees is not obligatory, since their purpose is to preserve the body. However, he also prefers, as a matter of priority, to include medical expenses within maintenance, and considers this obligatory. The author of al-Ghayth says: Medicine is a means of preserving life. Thus it resembles maintenance and forms part of it. He says: This is correct, because the Messenger told Hind, “Take what is sufficient for you and your child.” This statement has a comprehensive meaning. Likewise, the statement in the aforementioned verse, “The father is responsible for providing the mothers’ sustenance,” also has a comprehensive meaning. In short, whoever is entrusted with maintaining another is obliged to provide, in a lawful manner, whatever is minimally necessary. This does not mean that the person entitled to maintenance is authorized to take it with her own hand, since that may sometimes lead to excess. Rather, the meaning is that the minimum necessary maintenance must be provided in a way that avoids the risk of excess and waste. The amount of minimum need is to be determined in light of the information of knowledgeable people and the experience of those with expertise. This is the meaning of the Messenger’s words, “in a lawful manner”: neither arbitrarily nor through extravagance or stinginess. However, when the husband is unwilling to fulfill his responsibility of maintenance, the person entitled to it is authorized to take for herself the minimum necessary livelihood. This authorization is given to a woman who possesses sufficient sound judgment and discretion, not to one inclined to wastefulness. A wasteful or extravagant person is not authorized to take livelihood from the property of the person responsible for her maintenance according to her own judgment, for Allah says: “Do not entrust your wealth to the foolish.” If the person responsible for someone’s maintenance is not conscientious and unwilling to provide it, while the person entitled to maintenance is also foolish, then it is our duty to entrust responsibility for receiving the foolish person’s maintenance to her guardian or to a just person. Oil, soap, combs, and other items necessary for cleanliness are also included among the wife’s essential maintenance needs.
According to the Shafi‘i school, if perfume is used to remove an unpleasant odor, it is included in essential maintenance, because it is necessary for cleanliness. If the purpose of perfume is amusement and luxury, however, providing it is not obligatory upon the husband. Since this is discretionary, he cannot be prevented from it or compelled to provide it.
The Hanafi View on Determining the Amount of Maintenance
The Hanafis hold that the amount of maintenance has not been fixed by the Shariah. The husband is responsible for providing his wife only what is sufficient and essential for her, such as food, fruit, oil, and other essential living provisions according to recognized custom, which vary with place, time, and circumstances. Clothing suitable for winter and summer is also included. According to the Hanafis, it is the husband’s duty to maintain his wife according to his means, regardless of her financial condition. If the husband is wealthy, maintenance is determined in proportion to his wealth; if he is poor, it is determined in proportion to his poverty. Allah says:
لِيُنْفِقْ ذُو سَعَةِ مِنْ سَعَتِهِ، وَمَنْ قُدِرَ عَلَيْهِ رِزْقَهُ فَلْيُنْفِقْ مِمَّا أَتَاهُ اللَّهُ لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا مَا أَتَاهَا، سَيَجْعَلُ اللَّهُ بَعْدَ عُسْرِيسرًا .
“Let the wealthy man spend according to his wealth, and whoever has limited provision, let him spend from what Allah has given him. Allah does not burden any soul beyond what He has given it. Allah will bring about ease after hardship.” (Surah al-Talaq: 7)
Allah also says: “Lodge them where you dwell, according to your means and ability.” (Surah al-Talaq: 6)
The Shafi‘i View on Determining the Amount of Maintenance
The Shafi‘is did not leave the amount of maintenance to be determined merely on the basis of minimum and essential living provisions; rather, they said that it is fixed solely by the Shariah. They agree with the Hanafis only that the husband’s condition in poverty or wealth must be taken into account. A wealthy husband is one who can provide maintenance from his property and earnings. His duty is to provide two mudd of food each day. A poor husband is one who cannot provide maintenance from either his property or his earnings. His duty is to provide one mudd of food each day as maintenance. The duty of a man of moderate means is to provide one and a half mudd each day. Allah says: “Let the wealthy man spend according to his wealth, and whoever has limited wealth, let him spend from what Allah has given him.” It is evident that Allah distinguishes between the wealthy and the poor and assigns each maintenance according to his means, without specifying the amount. Therefore, determining the amount through juristic reasoning becomes necessary. The provision most similar to maintenance is food given as expiation, because it is food prescribed by the Shariah to relieve hunger. In expiation, the maximum given to the poor as a fidyah is two mudd of food, while the minimum fidyah is one mudd, which is given as expiation for intercourse with one’s wife during the daytime in Ramadan.
If he is of moderate means, he must provide one and a half mudd, because he is below the wealthy person and above the poor person. Therefore, he is required to provide one and a half mudd. If the door were opened for wives to demand whatever fulfilled their needs, disputes would arise and there would be no limit to them. Therefore, the amount is determined according to ma‘ruf, meaning customary and recognized practice. Essential items such as gravy, meat, and fruit are additional to the food amount. The Shafi‘i jurists said: “When providing clothing for his wife, the husband’s wealth or poverty must be taken into consideration. The wife of a wealthy man is entitled to the high-quality clothing worn by urban people. The wife of a poor man receives coarse cotton cloth, while the wife of a middle-class man receives clothing of an intermediate quality. He must also provide housing according to whether the husband is wealthy, poor, or of moderate means. The household furnishings should likewise correspond to her circumstances. If the husband is poor, he must provide his wife with the minimum food and gravy sufficient for her according to customary and recognized practice, and the minimum clothing sufficient for her in summer and winter. If the husband is of moderate means, her maintenance should be somewhat better than that of a poor woman, according to recognized custom. Maintenance must consist of the minimum food and gravy sufficient for her according to customary and recognized practice, and the minimum clothing sufficient for her in summer and winter. The reason maintenance must follow customary and recognized practice is that protecting the wife from harm is obligatory. Protection from harm is possible by providing moderate maintenance. This is what is meant by ma‘ruf, namely recognized and customary practice.”
Should Maintenance Be Fixed in Currency or in Goods?
When allocating food and clothing as maintenance, it is permissible to specify particular types of food and clothing, and it is also permissible to allocate it in the form of currency so that the wife can purchase the items she needs. It may be allocated annually, monthly, weekly, or daily, at whichever rate is easiest for the husband to provide. What is currently customary in the courts is to provide currency monthly for the wife’s food and every six months for clothing, since she needs one set of clothing in summer and one set in winter. Some judges set a monthly amount for all three types of maintenance. Their purpose in this is for the money to suffice for the wife’s food, clothing, and housing and to correspond to the husband’s financial circumstances, whether comfortable or constrained.
Changes in the Husband’s Financial Condition or in Market Prices
If the market prices prevailing when maintenance was fixed later change, or if the husband’s financial condition changes, it must first be determined what kind of change has occurred in market prices: have they fallen or risen? Has the husband’s financial condition deteriorated or improved? Each of these changed circumstances must be considered. If market prices rise above what they were when the allocation was made, the wife may demand an increase in her maintenance. If prices fall, the husband may demand a reduction in the amount of maintenance.
If, after the amount of maintenance has been fixed, it becomes known that the amount set was incorrect and was insufficient for the wife in proportion to the husband’s condition, whether poor or good, the wife may demand that the amount of maintenance be recalculated. The judge must then determine maintenance sufficient for the wife’s food and clothing according to the husband’s circumstances.
The Obligation of Maintenance Is a Valid Debt for Which the Husband Is Liable
Since the wife’s maintenance is obligatory upon the husband subject to the conditions mentioned earlier, once the specific causes and conditions making it obligatory are present, if the husband fails to provide it, it is considered a debt owed by him. Like other debts, this debt must either be paid or discharged by the wife; otherwise, he will not be free of it. This is the opinion of the Shafi‘i school. It has been followed in Egypt from the enactment of Law No. 25 of 1920 until the present. The law states: Section 1: After a wife surrenders herself to her husband, the cost of her maintenance is considered a debt owed by the husband. It becomes a debt from the time he ceases to provide it despite the obligation imposed upon him. This debt does not depend on a court judgment or the consent of both parties. It remains in force until it is paid or the wife discharges the husband from it.
Section 2: The maintenance of a divorced wife who is entitled to maintenance is likewise considered a debt, beginning on the date of divorce, exactly as stated in the preceding section. The authority from which the aforementioned law was issued—that is, the Ministry of Justice—also issued certain additional regulations at the same time. They are as follows:
1. For maintenance to be considered a debt owed by the husband to a wife or divorced woman, neither a court judgment nor a condition imposed by the concerned parties is required. Rather, from the moment it becomes due from the husband and he refrains from providing it, it is considered a debt.
2. The debt of maintenance is a fully established debt and is not annulled except by payment or discharge.
The following subsidiary rules are derived from these two regulations:
1. A wife or divorced woman may apply to the court to recover her maintenance from her husband, and it shall be taken into account from before the date of the application, even if that period exceeds one month. If the wife states that her husband left her without maintenance, although he was responsible for maintaining her during that period, then, whether the period was long or short, her claim shall cover the entire period. Once this claim of the wife or divorced woman is established by any acceptable evidence—even through the statutory investigation prescribed in Section 178—the court shall order payment of what she has claimed.
2. A maintenance debt is not extinguished by the death of either the husband or the wife. Nor is it extinguished by divorce, even if it is khulʿ divorce. Regardless of the type of divorce, the divorced woman is entitled to whatever maintenance remained unpaid during the marriage, unless that maintenance has been made part of the consideration for the divorce or khulʿ.
3. A wife’s temporary disobedience to her husband does not cancel unpaid maintenance. Only persistent disobedience releases the husband from the obligation of maintenance for as long as she remains disobedient, whether this occurs during normal married life or during the waiting period. After this law was enacted, some wives took advantage of it by refraining from claiming maintenance so that a substantial sum would accumulate over time. They would then claim the entire unpaid maintenance from their husbands at once. This placed husbands under severe pressure and imposed a major burden upon them. Therefore, ways were sought to alleviate the husbands’ difficulty. Eventually, the continuous regulations of the Sharia courts were issued under Article 6 of Section 99 of Law No. 78 of 1931. It stated: “No claim relating to a period earlier than three years before the date of filing shall be accepted.” Regarding this article, the memorandum containing a further explanation of the law stated: “Concerning maintenance owed for past periods, it was decided under the Judicial Special Powers Regulations that a claim for maintenance exceeding three Christian years would not be considered, and that the latest date to be taken into account would be the date on which the claim was registered. Since the unconditional and unrestricted permission to claim unpaid maintenance owed for a specified period before filing created the possibility of placing an excessive burden on the liable husband by claiming several years of maintenance at once, it was deemed necessary, in the interest of justice, to require the person entitled to maintenance to claim it year by year, in such a way that the delay would not exceed three years. Otherwise, the claimant would be required by promulgated regulation to submit successive annual claims, on the understanding that the claim would be refused if this were not done. This causes no harm to the person entitled to maintenance, since she has the opportunity to submit her claim before three years have elapsed.” This law continues to be applied to this day.
Rules for Waiving and Set off of Maintenance Debt
Since the maintenance or support due to the wife is regarded as a debt owed to her by her husband, and since it becomes his liability as a debt from the moment he refrains from paying it, the wife may, if she wishes, release her husband from all or part of this debt. However, if she declares in advance that she waives maintenance that will become due to her in the future, that declaration is neither sound nor valid, because it has not yet become a debt. Release can only be granted from a debt that has actually arisen and become payable as a debt. If, however, maintenance has been fixed on a monthly or similar specified-term basis, an advance release may be granted for the coming month or year.
When maintenance is regarded as a valid debt, which is not extinguished except by payment or relinquishment, and at the same time the husband has a debt due from the wife, if either of them demands that the two debts be set off, the request shall be accepted and the two debts shall be brought into balance. The Hanbalis hold a different view regarding set-off. They distinguish between a wife who is solvent and one who is insolvent. If the wife is solvent, the husband may recover from her the debt due to him in exchange for the maintenance owed to her, because whoever has a right due from another may recover it from any of that person’s property. Here, the money owed by the wife is also her property. If the wife is insolvent, however, the husband may not recover his debt from her in exchange for her maintenance, because debts must be paid only from property beyond what is essential for preserving life. The debt owed to the husband is not beyond her essential property. Moreover, Allah has commanded that an insolvent person be granted respite. Allah said:
وَإِنْ كَانَ ذُو عُسْرَةٍ فَنَظِرَةٌ إِلَى مَيْسَرَةٍ .
“If he is in difficulty, then grant him respite until he is at ease.” (Surah al-Baqarah: verse 280)
Advance Payment of Maintenance and the Wife Subsequently Becoming Ineligible for Maintenance
When a husband gives his wife maintenance in advance for one month, one year, or a similar period, and something subsequently occurs that makes her ineligible for maintenance—for example, either the husband or the wife dies, or the wife becomes disobedient—the husband may recover from her the maintenance for the remaining period during which she is no longer entitled to it. This is because the wife accepted that maintenance in exchange for remaining confined to him for his benefit. When that state of confinement ends because of death or disobedience, she should return the remaining portion of the maintenance that was given to her in advance. This is the opinion of Imam al-Shafiʿi and Muhammad ibn al-Hasan.
Imam Abu Hanifah and Abu Yusuf held that the husband may not recover any portion of the maintenance paid in advance. Although maintenance is compensation for confinement, it also resembles a gratuitous gift that the wife has taken possession of; and a gratuitous gift exchanged between a husband and wife may never be reclaimed.
Maintenance of a Wife Observing the Waiting Period
A woman observing the waiting period after a revocable divorce, and a woman observing the waiting period while pregnant, have the right to receive maintenance. Regarding women divorced by revocable divorce, Allah says:
اسكنوهن من حَيْثُ سَكَنتر، من وجدكُم
Meaning: Let your divorced wives live in homes similar to those in which you live, according to your means.” (Surah al-Talaq, verse 6)
And regarding pregnant women, Allah says:
وَإِنْ كُنْ أُوْلَاتِ حَمْلٍ فَأَنْفِقُوا عَلَيْهِنَّ حَتَّى يَضَعْنَ حَمْلَهُنَّ
Meaning: And if they are pregnant, then spend on them until they give birth.” (Surah al-Talaq: verse 6)
This verse proves that maintaining a pregnant woman is obligatory, whether she is observing the waiting period resulting from a revocable divorce, an irrevocable divorce, or death. There are three views regarding a non-pregnant woman observing the waiting period resulting from an irrevocable divorce:
1. She must be provided with accommodation, but not maintenance. This is the opinion of Imam Malik and al-Shafiʿi. Their evidence is the aforementioned verse 6 of Surah al-Talaq.
2. She must be provided with both accommodation and maintenance. This is the opinion of Umar ibn al-Khattab, Umar ibn Abd al-Aziz, al-Thawri, and the Hanafi school. The reason is that the aforementioned verse 6 of Surah al-Talaq makes it obligatory to provide accommodation for divorced women of every kind. Wherever accommodation is obligatory, maintenance is consequently obligatory as well. This applies to a revocable divorce, a divorce of a pregnant woman, and the wife herself. Umar and Aishah both rejected the hadith narrated by Fatimah bint Qays, saying: “We will not abandon the Book of Allah and the Sunnah of the Messenger for the statement of one woman. We do not know whether this woman remembered the Messenger’s statement correctly or forgot it.”
When Fatimah learned of this, she said: “The Book of Allah will judge between me and you. Allah says:
فَطَلِقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ ، وَاتَّقُوا اللهَ رَبِّكُمْ ، لَا تُخْرِجُوهُنَّ مِنْ بُيُوتِمِن وَلَا يَخْرُجْنَ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ ، وَتِلْكَ حُدُودُ اللَّهِ ، وَمَنْ يَتَعَدَّ حُدُودَ اللَّهِ فَقَدْ ظَلَمَ نَفْسَهُ ، لَا تَدْرِي لَعَلَّ اللَّهَ يُحْدِثُ بَعْدَ ذَلِكَ أَمْرًاه
Meaning: When you divorce women, divorce them for the commencement of their waiting period and count the waiting period. Fear Allah, your Lord. Do not expel them from their homes, nor should they leave, unless they commit a manifest indecency. These are the limits set by Allah. Whoever transgresses Allah’s limits has wronged himself. You do not know; perhaps Allah will bring about something new after that.”
The question is: what new possibility could arise after three divorces?”
3. According to Ahmad, Dawud, Abu Thawr, Ishaq, Ali ibn Abbas, Jabir, al-Hasan, Ata, al-Shaʿbi, Ibn Abi Layla, al-Awzaʿi, and the Imami Shiʿi school, she is entitled to neither maintenance nor accommodation. Their evidence is the hadith narrated by al-Bukhari and Muslim: Fatimah bint Qays said, “My husband gave me three divorces during the time of the Messenger, and he provided me with neither accommodation nor maintenance.” Some narrations state that the Messenger said: “A wife whom her husband has the option to take back shall receive accommodation and maintenance.” Ahmad, Muslim, Abu Dawud, and al-Nasaʾi also narrate that the Messenger said to Fatimah bint Qays: “You will not receive maintenance unless you are pregnant.”
Maintenance of an Absentee Wife
Section 25(5) of the Egyptian Law of 1920 states: “When the husband is absent but resides somewhere nearby, and he has apparent property, maintenance shall be provided to the wife from that property. If he has no apparent property, the court shall notify him, by the customary method, to show cause and shall grant him a specified period. If he does not provide his wife with the necessary maintenance within that period, then, after it has elapsed, the court shall issue a divorce against the husband. But if the absent husband is so far away that reaching him is difficult—for example, his whereabouts are unknown or he is missing—and it is established that he has no property from which the wife can support herself, the court shall divorce the wife from that husband.”
26. The Wife’s Moral Rights
I have already stated that the rights a wife has over her husband are of two kinds: 1. material and 2. moral. The material rights are the dower and maintenance; the moral rights are set out below:
1. Good Treatment: The husband’s foremost duty toward his wife is to treat her in a manner befitting a gentleman: to deal with her kindly, to treat her according to accepted custom, to behave, as far as possible, in a way that cultivates affection for him in her heart, and to be patient with her when he encounters something disagreeable from her. Allah says:
وَعَاشِرُوهُنَّ بِالْمَعْرُوفِ : فَإِنْ كَرِهْتُمُوهُنَّ فَعَسَى أَنْ تَكْرَهُوا شَيْئًا وَيَجْعَلَ اللَّهُ فِيْهِ خَيْرًا كَثِيرًاه
Meaning: Treat women kindly according to accepted custom. If you dislike them, then perhaps you dislike something in which Allah has placed much good.” (Surah al-Nisa: verse 19)
A sign of high moral character and advanced faith is having a tender heart and being friendly toward one’s family. The Messenger of Allah said: “The most complete in faith among the believers is the one with the finest character. And the best of you are those who are best to their wives.” Being courteous and gracious toward one’s wife is a sign of a complete personality, while treating her insultingly is a sign of baseness and vulgarity. The Messenger of Allah said: “Only a noble person treats women well, and only a despicable person treats them badly.”
Showing warmth and playfulness toward one’s wife, displaying affection and tenderness, and joking with her are also part of gentlemanly and gracious treatment. The Messenger of Allah would sometimes engage in races with Aishah while showing her warmth and entertaining her. Aishah said: “The Messenger of Allah raced me, and I beat him. Some time later, when my body had become heavier and caused me difficulty, he raced me and I lost. He then said, ‘This loss is in return for the previous day’s victory.’” —Ahmad, Abu Dawud.
Ahmad, Abu Dawud, al-Tirmidhi, al-Nasaʾi, and Ibn Majah narrated that the Messenger said: “All amusements of the children of Adam are futile except three: shooting arrows with a bow, training horses, and enjoying oneself with one’s wife. All of these are legitimate.” Raising one’s wife to one’s own level, refraining from hurting her, and not even hurting her with harsh words are forms of honoring her. Muawiyah ibn Haydah said: I asked, “O Messenger of Allah, what rights do our wives have over us?” He said: “Feed her when you eat, clothe her when you clothe yourself, do not strike her in the face, do not revile her, and do not abandon her except within the house.”
It must be remembered that perfection cannot be expected in women. She must be accepted as she is. The Messenger said: “Treat women kindly, for woman was created from a bent rib. The uppermost part of the rib is the most crooked. If you try to straighten it, you will break it; and if you leave it as it is, it will remain crooked forever.” —Al-Bukhari, Muslim.
This hadith indicates that every woman has an innate crookedness in her character and disposition. Correcting her completely is impossible. Her nature is bent like a bow-shaped, curved rib, and it cannot be straightened. Nevertheless, it is essential to live with a woman along with all her faults and virtues and to treat her as well as possible. This does not mean that she should not be trained and guided to the right path. When she becomes obstinate about something, one should try to guide her wisely and skillfully. Sometimes a husband pays no attention to his wife’s good qualities and faults; rather, only the disliked aspects of her nature stand out in his eyes. For this reason, Islam advises comparing and weighing a woman’s faults and virtues. If he sees something he dislikes in her, he will certainly also find something he likes. The Messenger of Allah said: “A believing man should not hate a believing woman. If he dislikes one of her qualities, he will be pleased with another.”
2. Protecting the Wife: It is the husband’s duty to protect his wife from everything that stains her honor, dignity, and reputation. This is a sense of honor and self-respect, which Allah greatly loves. Al-Bukhari narrated:
The Messenger of Allah said: “Allah possesses protective jealousy, and the believer also possesses protective jealousy. Allah’s protective jealousy means that the servant must not do what He has forbidden.” Ibn Masud narrated that the Messenger said: “No one is more protective than Allah. Because He is protective, He has forbidden both open and hidden indecency and shameful acts. No one loves praise of himself more than Allah, and therefore He has praised Himself. No one loves excuses more than Allah, and therefore He sent prophets and messengers as bearers of good news and warners to people, so that they could not claim that they had known nothing about the Hereafter.” Sad ibn Ubadah said: “If I saw a man with my wife, I would immediately strike him with my sword.” The Messenger of Allah said: “Are you amazed at Sad’s protective jealousy? I am more protective than he is, and Allah is more protective than I am. Because of His protective jealousy, Allah has forbidden hidden and open indecency.” Ibn Umar narrated that the Messenger said: “Three people will not enter Paradise: one who is disobedient to his parents, a dayyuth, and a woman who imitates men.” —al-Nasaʾi, al-Bazzar, al-Hakim. It is narrated from Ammar ibn Yasir that the Messenger said: “Three people will never enter Paradise: a dayyuth, a masculine woman, and a drunkard.” The people asked, “O Messenger of Allah, we know what a drunkard is, but who is a dayyuth?” The Messenger said: “A man who does not care who comes and goes among his family.” We asked, “Who is a masculine woman?” He said: “A woman who adopts men’s dress and appearance.” —al-Tabarani.
Imam al-Mundhiri said that there is no controversial narrator in the chain of transmission of the aforementioned hadith. It must be remembered, however, that just as a husband should possess a strong sense of honor regarding his wife, he must also be moderate and balanced in that sense of honor. Thus, it is improper to go to extremes in harboring suspicion against her, observing and monitoring her every movement, and counting all her faults. This damages the marital relationship and severs the bonds that Allah has commanded people to maintain. Abu Dawud, al-Nasaʾi, and Ibn Hibban narrated from Jabir ibn Amrah that the Messenger of Allah said: “Some protective jealousy is loved by Allah, while some is disliked by Allah. Some pride is loved by Allah, while some pride is disliked by Allah. The protective jealousy Allah loves is that which arises when there is cause for suspicion. The protective jealousy Allah dislikes is that which exists when there is no cause for suspicion. The pride Allah loves is pride in oneself during battle and hardship. The pride Allah dislikes is pride in wrongdoing and unlawful acts.” Ali said: “Do not be excessively jealous over your wife, or mutual suspicion between you will continue because of you.” Indeed, Allah dislikes suspicion and a tendency toward doubt.
3. The Husband’s Sexual Relations with His Wife: Ibn Hazm said that it is obligatory for a capable husband to have intercourse at least once during every period of purity, that is, during a period free from menstruation. Otherwise, he is considered sinful and disobedient to Allah. The evidence is the following portion of verse 222 of Surah al-Baqarah:
فَإِذَا تَطَهِّرْنَ فَأْتُوهُنَّ مِنْ حَيْثُ أَمَرَكُمُ اللَّهُ
“Then when they have purified themselves, go to them as Allah has commanded you.” Most scholars supported Ibn Hazm’s view that this is obligatory for a husband if he has no excuse. Imam al-Shafiʿi said that it is not obligatory, because it is her right; therefore, it is no more obligatory than other rights. Imam Ahmad said that intercourse must take place once within four months. When a man travels away leaving his wife behind, Imam Ahmad set a maximum period of six months if he has no excuse preventing his return home. Imam Ahmad was asked how long a husband may remain absent from his wife. He replied, “Six months.” After that, he must be sent a message ordering him to return. If he does not return, the ruler shall separate the two. The evidence is that Zayd ibn Aslam narrated that Umar ibn al-Khattab, while touring the streets of Madinah and inspecting the people’s condition, heard a woman reciting the following poem: “Oh, how long and dark this night is! Many days have passed without my beloved, with whom I might enjoy myself. By Allah, if I did not fear Allah alone, this bed would be shaken from all sides. Only my Lord and my sense of shame restrain me. And I honor my husband, so I do not allow anyone to tread upon his bed.” Umar investigated the woman’s identity. He was told that she was a certain woman whose husband was abroad, engaged in jihad in the path of Allah. He then went to his daughter Hafsah and said, “My daughter, how long can a woman endure without her husband?” Hafsah said, “Glory be to Allah! Are you asking me this question?”—meaning that it was embarrassing and awkward for a father to ask his daughter such a question. Umar said, “Had I not been concerned for the welfare of the Muslims, I would not have asked you this.” Hafsah said, “Five to six months.” Umar then set six months as the period for which men could remain engaged in warfare: one month to travel to their post, one month to return, and four months to remain at their post. Imam al-Ghazali of the Shafiʿi school said that intercourse with one’s wife once every four days is the fairest arrangement, since the maximum number of wives is four. Thus, delaying for four days is permissible. However, this period should be reduced or extended according to the need to protect the wife’s chastity, because safeguarding her chastity is the husband’s duty. There is no evidence establishing an obligation to demand intercourse, since making such a demand and fulfilling it can be very difficult.
Muhammad ibn Man al-Ghifari said that a woman came to Umar and said, “O Commander of the Believers, my husband fasts during the day and prays at night”—that is, he performs voluntary prayers and fasts. “I do not like to complain about his worship of Allah.” Umar said, “Your husband is indeed an excellent husband.” The woman repeated her statement, and Umar continued repeating the same response. At one point, Kaʿb al-Asadi said to Umar, “O Commander of the Believers, this woman is complaining against her husband because he keeps her away from his bed.” Umar said, “Since you have understood the woman’s words, settle the dispute yourself.” Kaʿb said, “Her husband must be brought before me.” He was brought before him. Kaʿb said to him, “Your wife has lodged a complaint against you.” The husband asked, “About food?” Kaʿb said, “No.” The woman then said, “O wise judge, my beloved has been made heedless of me by his mosque. His worship has kept him away from my bed. So, O Kaʿb, issue your judgment without hesitation or embarrassment. Neither night nor day allows him to sleep. Especially regarding women, I cannot approve of his conduct.”
Her husband said: “All that has been revealed in Surah al-Nahl and the seven long surahs, together with the severe warnings found throughout the Book of Allah, has made me forget the woman and her household.”
Ka’b said: “O man, your wife has a right over you: her rightful share is one day out of every four. So give her this share and do not evade it. Ka’b then added: Allah has permitted you to take two, three, or four wives. After that, three days and three nights remain at your disposal; during those days you may perform as much voluntary worship as you wish. ‘Umar (may Allah be pleased with him) said, ‘O Ka’b, I cannot tell which of your two actions impresses me more: your understanding of this couple’s problem or your resolution of their difficulty.’ In any case, go; I appoint you judge of Basra.’ It has been established from hadith that intercourse between a husband and his wife is an act of charity for which Allah grants reward. Muslim relates that the Messenger (peace and blessings be upon him) said: ‘There is a reward for your sexual intercourse with your wife.’ The people said, ‘O Messenger of Allah, will we be rewarded even for satisfying our desires?’ The Messenger (peace and blessings be upon him) said, ‘Consider this: if you had done it in a forbidden manner, would you not have incurred sin? Likewise, you will be rewarded for doing it in a lawful manner.’ It is recommended to spend time in affection, endearment, kissing, embracing, and the like so that the wife may attain complete satisfaction. Abu Ya’la relates from Anas ibn Malik (may Allah be pleased with him) that the Messenger (peace and blessings be upon him) said: ‘When you have intercourse with your wives, do so properly. When the man reaches satisfaction before the woman has attained complete satisfaction, he should not hurry to get up until she has attained complete satisfaction.’ The following statement of the Messenger (peace and blessings be upon him) has also been quoted earlier: ‘Why did you not marry a virgin who would amuse herself with you and you with her?’
4. Do not remain completely naked during intercourse: Islam commands covering the private parts in all circumstances except when uncovering them is necessary. The grandfather of Bahz ibn Hakim asked the Messenger (peace and blessings be upon him), ‘O Messenger of Allah, how much of our private parts should we cover and how much may we uncover?’ He replied, ‘Conceal your private parts from everyone’s sight except your wife or slave-girl.’ He was asked again, ‘O Messenger of Allah, what about when one person is having intercourse with another?’ The Messenger (peace and blessings be upon him) said, ‘If one can avoid looking at the private parts, then one should not look.’ He was asked again, ‘What if one of us is completely alone?’ The Messenger (peace and blessings be upon him) said, ‘Allah is more deserving of being modestly revered than people.’ (Tirmidhi)
Uncovering the private parts during intercourse is permissible. However, the Messenger (peace and blessings be upon him) said that a husband and wife should not be completely naked during intercourse. It is narrated from ‘Utbah ibn ‘Abd al-Sulami that the Messenger of Allah (peace and blessings be upon him) said: ‘When you have intercourse with your wife, cover your private parts as much as possible, and do not be naked like a male and female donkey.’ (Ibn Majah). Ibn ‘Umar (may Allah be pleased with him) relates:
The Messenger of Allah (peace and blessings be upon him) said: ‘Beware, do not become naked, for there are angels with you who never leave you except when you relieve yourselves and during intercourse. So be modest before them and honor them.’ (Tirmidhi). ‘A’ishah (may Allah be pleased with her) said: ‘The Messenger (peace and blessings be upon him) never saw my private parts, nor did I see his private parts.’
5. Saying Bismillah during intercourse: It is Sunnah to recite A’udhu billahi and Bismillah during intercourse. Bukhari and Muslim relate from Ibn ‘Abbas:
بسم الله … اللهم جنبنا الشَّيْطَانَ، وَجَنبِ الشَّيْطَانَ مَا رَزَقْتَنَا
The Messenger of Allah (peace and blessings be upon him) said: ‘If, before one of you has intercourse with his wife, he says, “Bismillahir-Rahmanir-Rahim, Allahumma jannibnash-shaytana wa jannibish-shaytana ma razaqtana” (In the name of Allah, the Most Compassionate, the Most Merciful; O Allah, keep Satan away from us and keep Satan away from what You grant us), and a child is decreed for them as a result of that intercourse, Satan will never be able to harm that child.’
6. Conversation between husband and wife concerning intercourse during intercourse: Discussing intercourse and informing others about it is contrary to propriety and entirely futile and unnecessary. Unless there is an urgent need to say something about it, it is preferable to refrain from doing so. In an authentic hadith, the Messenger of Allah (peace and blessings be upon him) said: ‘Avoiding what is unnecessary is part of the beauty of Islam.’ Allah Most High has also praised those who avoid vain and unnecessary things:
وَالَّذِينَ هُمْ عَنِ اللَّغْوِ مُعْرِضُونَ
‘Those who turn away from vain talk and deeds.’ (Surah al-Mu’minun: 3)
However, there is no fault in speaking about it when it becomes unavoidable. A woman complained to the Messenger (peace and blessings be upon him) that her husband was unable to have intercourse with her. Her husband then said, ‘O Messenger of Allah, I shake her as leather is shaken.’ However, when a husband or wife expands the detailed description of intercourse beyond what is essential and reveals the intimate details of what occurs between them, it becomes forbidden. Abu Sa’id (may Allah be pleased with him) relates that the Messenger of Allah (peace and blessings be upon him) said: ‘On the Day of Resurrection, the person regarded as worst in Allah’s sight will be the one who has intimate relations with his wife and she with him, and then discloses the details of that intimacy publicly.’ (Ahmad). Abu Hurayrah relates that the Messenger of Allah (peace and blessings be upon him) led the prayer. After saying salam, he turned toward the worshippers and sat down, saying: ‘Is there among you any man who, when having intercourse with his wife, closes the door and uncovers his private parts, then goes out and tells people, “I did such-and-such with my wife”?’ The people remained silent. Then he turned toward the women and said, ‘Is there among you any woman who discloses such things?’ A young woman rose onto her knees and raised her neck and head so that the Messenger (peace and blessings be upon him) could see and hear her. She said, ‘Yes, by Allah, men speak about such matters and women do too.’ The Messenger of Allah (peace and blessings be upon him) said, ‘Do you know the likeness of those who do this? Those who do such things are like a male and female devil who meet on a road and satisfy their lust in front of the people.’ (Ahmad, Abu Dawud)
7. Satisfying sexual desire in an abnormal manner: Intercourse through a woman’s anus is extremely repugnant, contrary to nature, and forbidden. Allah says:
نِسَاؤُكُمْ حَرْثٌ لَكُمْ فَأْتُوا حَرْثَكُمْ أَنَّى شِئْتُمْ
‘Your wives are a place of cultivation for you, so go to your place of cultivation as you wish.’ (Surah al-Baqarah, 223). A cultivated field is land that is plowed and sown. Here, the cultivated field refers to the place of procreation. The command to go to the cultivated field clearly means intercourse in the woman’s vagina, since procreation is possible only through the vagina. An Arab poet says:
‘The wombs are fields for us; cultivating them is our duty, and producing the crop is Allah’s work.’ Regarding the occasion of the revelation of the aforementioned verse, Bukhari and Muslim relate: ‘The Jews used to believe that if a husband had intercourse with his wife from behind in her vagina, the child would be cross-eyed. The Ansar followed the Jews in this matter. Therefore Allah revealed: “Your wives are a place of cultivation for you, so go to your place of cultivation as you wish.”’ That is, intercourse in the vagina with the aim of producing a child is permissible, regardless of the position.
Several hadiths prohibiting anal intercourse have been transmitted. Ahmad, Tirmidhi, and Ibn Majah relate that the Messenger of Allah (peace and blessings be upon him) said: ‘Do not have intercourse with women through their anuses.’ The Messenger (peace and blessings be upon him) also said: ‘Anal intercourse is the practice of the people of Lot.’ Ahmad, Abu Dawud, Tirmidhi, Nasa’i, and Ibn Majah relate from Abu Hurayrah:
The Messenger of Allah (peace and blessings be upon him) said: ‘The one who has intercourse with his wife through her anus is accursed.’
Ibn Taymiyyah said: When a husband has intercourse with his wife through her anus and she obeys him in this, both of them will be punished. Otherwise, they will be separated.
8. Coitus interruptus and birth control: [Ejaculation outside the sexual organ] It has already been stated that Islam supports population growth, since it is a symbol of the strength and security of nations. Only a populous nation is entitled to honor and dignity. The following statement of the Messenger (peace and blessings be upon him) establishes this as important from the perspective of the Shariah: ‘Marry women who are loving and fertile, for on the Day of Resurrection I will take pride in your large numbers.’ Nevertheless, Islam does not prohibit limiting the number of children in particular circumstances, whether by using contraceptive medicines or by some other means.
If a person has so many children that he is unable to raise them properly, birth control is permissible for him. Likewise, it is permissible when the wife is in poor health, when there is a fear that she will become pregnant continuously, or when the husband is poor. In these circumstances, limiting procreation is permissible. Indeed, according to some scholars, birth control in such circumstances is not merely permissible but recommended. Imam Ghazali considered birth control permissible even when having many children might harm the wife’s beauty. Some scholars have ruled birth control permissible without conditions. Their evidence is as follows:
1. Bukhari and Muslim relate from Jabir (may Allah be pleased with him): ‘We practiced coitus interruptus during the lifetime of the Messenger (peace and blessings be upon him), while the Qur’an was being revealed.’
2. Muslim relates from Jabir: ‘We practiced coitus interruptus during the lifetime of the Messenger (peace and blessings be upon him), and although he knew of it, he did not forbid us from doing so.’
Imam al-Shafi’i said: We have learned that several Companions permitted it and did not object to it. Al-Bayhaqi said that Sa’d ibn Abi Waqqas, Abu Ayyub al-Ansari, Zayd ibn Thabit, Ibn ‘Abbas, and others considered coitus interruptus permissible. This is the view of Malik and al-Shafi’i. ‘Umar and ‘Ali (may Allah be pleased with them) agreed that destroying a fetus before it had passed through seven stages could not be called killing a child. Qadi Abu Ya’la related that ‘Ali, al-Zubayr, Sa’d, and several other Companions were sitting with ‘Umar and discussing coitus interruptus. They all said that there was no objection to it. One man said that some people called it minor infanticide. ‘Ali (may Allah be pleased with him) stated that it would be considered infanticide only after the seven stages had been completed: first clay, then semen, then a clot of blood, then a lump of flesh, then bones, then flesh, and finally a complete form. ‘Umar (may Allah be pleased with him) said, ‘You are right; may Allah grant you a long life.’ The scholars of the Zahiri school say that contraception is entirely forbidden, because Juthamah bint Wahb related: ‘A man asked the Messenger (peace and blessings be upon him) about coitus interruptus. He replied, “That is hidden infanticide.”’
Imam Ghazali refuted this evidence, saying that the permissibility of coitus interruptus is established by several authentic hadiths. In the aforementioned hadith, the phrase ‘hidden infanticide’ is comparable to ‘hidden polytheism.’ It proves that the practice is disliked, not forbidden. Disliked means detested. Some Hanafi scholars hold that coitus interruptus is permissible if the wife consents; otherwise, it is disliked.
9. The ruling on abortion: After one hundred and twenty days have passed since the semen became established in the womb, destroying the fetus is not permissible, because it is then considered an attempt to take a life and renders one deserving of punishment in this world and the Hereafter. The Messenger of Allah (peace and blessings be upon him) said: ‘Each of you is gathered in his mother’s womb for forty days as semen, then he becomes a clot of blood, then a lump of flesh. Then the soul is breathed into him, and four matters are written: his provision, his lifespan, his deeds, and whether he will be fortunate or unfortunate.’
Before one hundred and twenty days have passed, abortion or destroying the fetus is permissible when there is an unavoidable necessity. Without a genuine reason, it is disliked. The author of Subul al-Salam says that whether it is permissible to use medicine to destroy the fetus before the soul is breathed into it is disputed in the same way as the permissibility of coitus interruptus. Whoever considers coitus interruptus permissible also considers the use of medicine permissible, while whoever considers it forbidden considers this forbidden as well. The same ruling applies to women adopting measures that prevent pregnancy from the outset.
Imam Ghazali said: Abortion is an offense against what exists in the womb. It has several stages. First, semen enters the womb. Then it mixes with the woman’s semen and becomes capable of receiving life; destroying it thereafter is an offense. When it takes the form of a clot of blood and a lump of flesh, casting it away is an even graver offense. Casting it away after the soul has been breathed into it and after a complete form has been created is an even greater offense.
27. Ila
Definition
The literal meaning of ila is to swear an oath not to do something. In Shariah terminology, it means swearing an oath not to have intercourse with one’s wife. Whether the oath is sworn by Allah or consists of a vow to fast, give charity, perform Hajj, or divorce, the ruling is the same. During the Age of Ignorance, a husband would swear not to touch his wife for a year, two years, or even longer. His purpose was to torment or harm her. As a result, she was left suspended: neither a wife nor a divorced woman. Allah intended to set a limit for this harmful practice, so He fixed its duration at four months. During this period the husband might become calmer and perhaps regain sound judgment. If he regained his good sense during this period or toward its end, broke his oath, resumed relations with his wife, and offered expiation for the oath, that would be good. Otherwise, he would divorce her. Allah says in verse 227 of Surah al-Baqarah:
لِلَّذِينَ يُؤْلُونَ مِنْ نِسَائِهِمْ تَرَبُّصُ أَرْبَعَةِ أَشْهُرٍ فَإِنْ فَاءَوْ فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ . وَإِنْ عَزَمُوا الطَّلَاقَ فَإِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ
‘For those who swear an oath of abstention from their wives, there is a waiting period of four months. Then, if they return, surely Allah is Forgiving, Merciful. And if they resolve upon divorce, surely Allah is All-Hearing, All-Knowing.’
The duration of ila
The scholars agree that if a man swears not to touch his wife for more than four months, it constitutes ila, and the period begins from the moment the oath is sworn. They disagree about what happens if he swears not to touch her for four months. According to Abu Hanifah and his disciples, this also constitutes ila. According to others, it does not, because Allah has fixed four months as its duration. Once this period has elapsed, he must either return to her or divorce her.
The ruling on ila
If, after swearing not to approach his wife, he touches her within four months, the ila comes to an end and he must offer expiation for the oath. If the period passes without intercourse, then according to most scholars the wife has the right either to continue living with him or to demand a divorce. If he does neither, Imam Malik holds that the ruler may effect a divorce against the husband and free the wife from harm. Ahmad and al-Shafi’i hold that instead of effecting a divorce against the husband, the court should pressure him and detain him until he divorces his wife himself.
According to the Hanafis, once the period passes without intercourse, one irrevocable divorce automatically takes effect against the wife. The husband then has no opportunity to revoke the divorce, because he has abused his rights by abstaining from intercourse without excuse. In this way he has violated his wife’s rights and wronged her. According to Imam Malik, if the husband intends to harm his wife by abstaining from intercourse, ila applies to him even if he has not sworn an oath, because the wife suffers the same harm in this case as she does when an oath is sworn.
The divorce effected through ila
The divorce effected through ila is an irrevocable divorce. If it were revocable, the husband would have the opportunity to compel his wife to return to him, since that is his right. But this would neither protect the wife’s interests nor remove the harm inflicted upon her. This is the school of Abu Hanifah. Malik, al-Shafi’i, Sa’id ibn al-Musayyab, and Abu Bakr ibn ‘Abd al-Rahman, on the other hand, hold that it is a revocable divorce, because there is no evidence that it is irrevocable. Moreover, it is the divorce of a wife with whom intercourse has taken place, who has been divorced without compensation and without assurance that she will be taken back.
The waiting period of a wife subject to ila
According to most scholars, a wife subject to ila must observe the waiting period like other wives, because she has been divorced. Jabir ibn Zayd said that she need not observe a waiting period if she has experienced three menstrual periods during the four months. Ibn Rushd said that the reason for this is that the waiting period is prescribed to ascertain that the womb is clear, whereas in the case of ila the womb becomes clear by itself.
28. The husband’s rights over his wife
The husband’s rights over his wife include obeying him in every command that does not involve disobedience to Allah, safeguarding his property and her chastity, and refraining from conduct that annoys or embarrasses him. Therefore, she should never appear before him with a gloomy or sullen expression, nor should she appear before him wearing clothing or adornments he dislikes. This is one of the husband’s greatest rights. Al-Hakim relates from ‘A’ishah (may Allah be pleased with her): ‘I asked the Messenger of Allah (peace and blessings be upon him), “Who has the greatest right over a woman?” He said, “Her husband.” ‘A’ishah then asked, “Who has the greatest right over a man?” He said, “His mother.”’ Emphasizing this right even more, the Messenger of Allah (peace and blessings be upon him) said: ‘If I were to command anyone to prostrate before another, I would command a wife to prostrate before her husband, because the husband’s right over his wife is so great.’ —Abu Dawud, Tirmidhi, Ibn Majah.
In verse 34 of Surah al-Nisa, Allah Most High describes righteous women, saying:
فالصلحت قنتت حفظت لِلْغَيْبِ بِمَا حَفِظَ اللَّهُ
‘Righteous women are devoutly obedient and, in their husbands’ absence, guard what Allah has commanded them to guard,’
They do not betray their husbands concerning their persons or property. This is a woman’s finest quality, and through it married life becomes lasting and happy. The Messenger (peace and blessings be upon him) said: ‘The best wife is one whose sight brings you joy, who obeys you when you give her an order, and who, when you are away from her, safeguards your property and her own honor.’ Preserving this quality in a wife has been regarded as equivalent to jihad in the path of Allah. Ibn ‘Abbas (may Allah be pleased with him) relates that a woman came to the Messenger (peace and blessings be upon him) and said: ‘O Messenger of Allah, I have come to you as a representative of women. Allah has made jihad obligatory upon men. When men prevail, they are rewarded; and if they are killed, they are martyrs and continue to receive provision from Allah. We women maintain their households. What will we receive from this jihad?’ The Messenger of Allah (peace and blessings be upon him) said: ‘Inform every woman you meet that a wife’s obedience to her husband and fulfillment of his rights is equal to participating in jihad. Yet very few women fulfill these rights properly.’ This right is so important and valuable that Islam mentions obedience to the husband alongside performing religious duties and implementing Allah’s commands. ‘Abd al-Rahman ibn ‘Awf relates that the Messenger of Allah (peace and blessings be upon him) said: ‘When a woman performs her five daily prayers, fasts the month, preserves her chastity and modesty, and obeys her husband’s commands and prohibitions, she will be told: “Enter Paradise through whichever gate you wish.”’ —Ahmad, Tabarani.
Umm Salamah (may Allah be pleased with her) relates that the Messenger of Allah (peace and blessings be upon him) said: ‘Any wife who dies while her husband is pleased with her will enter Paradise.’ The thing that takes the greatest number of women to Hell is disobedience to their husbands and denial of their husbands’ kindness and generosity. Ibn ‘Abbas (may Allah be pleased with him) relates that the Messenger of Allah (peace and blessings be upon him) said: ‘I looked into Hell and saw that most of its inhabitants were women, because they are ungrateful to those who benefit them. Some are so ungrateful that even if you benefit one of them for ages, she will say, upon receiving a single unpleasant treatment from you, “I have never received any good from you.”’ —Bukhari.
Abu Hurayrah relates that the Messenger of Allah (peace and blessings be upon him) said: ‘When a husband calls his wife to his bed and she refuses, then he spends the night angry with her, the angels continue to curse that woman until morning.’ —Ahmad, Bukhari, Muslim.
However, this obedience is subject to the condition that it be lawful. No created being may be obeyed in anything that involves disobedience to the Creator. Therefore, if her husband orders her to do something wrong, she must oppose him. Not observing a voluntary fast without her husband’s permission is also part of obedience to him. Likewise, not performing a voluntary Hajj without his permission and not leaving the husband’s home without his permission are part of obedience to him. Abu Dawud al-Tayalisi relates from ‘Abdullah ibn ‘Umar (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: ‘The husband has a right over his wife such that, even if he wishes to have intercourse with her on the narrow saddle of a camel, she should not prevent him. She must not fast for even one day without his permission, except during an obligatory fast. If she does so, she will incur sin and it will not be accepted as worship. She must not give anything from his house to anyone without his permission. If she does, the husband will receive the reward, but she will incur the sin. … She must not leave his house without his permission. If she does, Allah and the angels of wrath will curse her until she repents or returns, even if the husband is an oppressor.’
Not allowing into the house anyone whom the husband dislikes
Another right of the husband over his wife is that she must neither admit nor allow into the house, without his permission, anyone whom he dislikes. ‘Amr ibn al-Ahwas al-Jushami (may Allah be pleased with him) relates that, during the Farewell Hajj, after praising Allah and offering exhortation, the Messenger of Allah (peace and blessings be upon him) said:
“Listen: treat women kindly. They are under your care. It is not lawful for you to take any action against them unless they commit clear indecency. If they misbehave, leave them apart in their beds and strike them lightly. If they then obey you, seek no further means against them. Listen: you have rights over your wives, and your wives have rights over you. Your right over them is that they do not allow anyone you dislike to tread upon your beds or permit anyone you dislike to enter your homes. Their right over you is that you provide them properly with food and clothing.” —Ibn Mājah, al-Tirmidhī.
A Wife’s Service to Her Husband
The basis of the relationship between husband and wife is equality between woman and man with regard to rights and responsibilities. Its source is Allah’s word:
وَلَهُنَّ مِثْلُ الَّذِي عَلَيْمِن بِالْمَعْرُوفِ مِن وَالرِّجَالِ عَلَيْمِنْ دَرَجَةٌ طَ وَاللَّهُ عَزِيزٌ حَكِيرٌه
Meaning: “Wives have rights corresponding to their obligations, according to what is fair; yet men have a degree over them.” (Sūrat al-Baqarah: verse 229)
Thus, this verse grants women rights of the same kind as those that husbands have over them. Just as demands may be made of a woman (wife), the same may be demanded of a man (husband).
The basis that Islam has established for dealings and mutual relations between husband and wife is entirely natural. For example, men are generally more capable of all work outside the home, exertion and earning a livelihood. On the other hand, women are more capable of managing the household, raising children, and making the means of peace and security in the home readily available. Therefore, men have been assigned the role that is suitable and fitting for them, while women have been assigned the responsibility natural to them. In this way, the household is managed properly both inside and outside. Neither spouse needs to take over the other’s share of domestic responsibilities. The Messenger of Allah divided household responsibilities between ʿAlī ibn Abī Ṭālib and his wife Fāṭimah: he assigned Fāṭimah responsibility for managing the household and ʿAlī responsibility for earning and working. Al-Bukhārī and Muslim narrated that one day Fāṭimah came to the Messenger of Allah and complained that grinding the mill had caused calluses on her hands, and asked him for a servant. The Messenger of Allah replied: “Shall I direct you to something better than what you have asked for? When you go to bed, say Subḥānallāh thirty-three times, al-ḥamdu lillāh thirty-three times, and Allāhu akbar thirty-four times. This is better for you than a servant.”
Asmāʾ, the daughter of Abū Bakr, said: “I used to perform all the household work of my husband al-Zubayr with my own hands. He had a horse, and I tended it, cut grass for it, and fulfilled all its needs.” Asmāʾ fed the horse leaves and branches, gave it water, drew water from the well with a rope attached to a bucket, ground flour, and carried date-palm branches (firewood) on her head from al-Zubayr’s land, nearly one farsakh away. These two ḥadīths show that serving the family and household is her duty, just as providing all expenses is the husband’s duty. When Fāṭimah became exhausted from household work and complained to the Messenger of Allah, he did not tell ʿAlī that household work was not his responsibility and was solely Fāṭimah’s responsibility. Likewise, when he saw Asmāʾ serving her husband, he did not say that serving her husband was not her responsibility; rather, he kept her engaged in that service. He kept all the female Companions serving their respective husbands, although he knew that some of them liked this and others did not. Ibn al-Qayyim said: It is unquestionably true that no distinction may be made between wealthy and poor women or between noble and ordinary women. The woman most worthy of respect and nobility among all women in the world used to serve her husband. When she came to the Messenger of Allah to complain of her hardship, he paid no attention to it. In Muslim society, both in earlier and modern times, the aforementioned tasks have traditionally been regarded as women’s responsibilities. Even the wives of the Messenger of Allah and his Companions used to perform all kinds of domestic work, such as grinding grain, making bread, cooking, making beds, and preparing and serving food. No woman is known to have refused or refrained from doing these tasks. There was no room for that, for if there was any shortcoming in these duties, they would even discipline their wives and compel them to remain engaged in service. If these were not the wife’s responsibilities, they would not have demanded them of them. This is the correct view. Mālik, Abū Ḥanīfah and al-Shāfiʿī, however, held that it is not obligatory for a wife to do her husband’s household work and serve him, but merely voluntary. They said: The marriage contract is only for sexual enjoyment, not for rendering service. In their view, what these ḥadīths indicate is entirely voluntary conduct and exemplary moral character.
Exceptions to Truthfulness between Husband and Wife
Preserving intimacy, harmony and ease in married life, and strengthening the family bond, is a goal for the sake of which departing from truthfulness is sometimes permissible. Abū ʿUdhrah al-Duʾalī used to disappear from his wives during the caliphate of ʿUmar. As a result, an undesirable rumor about him spread among women. After learning of this, Abū ʿUdhrah came home with ʿAbdullāh ibn al-Arqam and said to his wife: “I ask you by Allah: are you displeased with me?” His wife said: “Do not ask me by Allah.” Abū ʿUdhrah said: “I ask you by Allah.” She said: “Yes.” Abū ʿUdhrah said to Ibn al-Arqam: “You heard that, didn’t you?” Then they both went to ʿUmar. Abū ʿUdhrah said: “You claim that I wrong my wives and disappear, leaving them behind. Ask Ibn al-Arqam.” ʿUmar asked Ibn al-Arqam, who told him the truth. He then sent a messenger to summon Abū ʿUdhrah’s wife. She and her paternal aunt came. ʿUmar asked Abū ʿUdhrah’s wife: “Are you the woman who says to her husband, ‘I am displeased with you’?” She replied: “I am the first to repent and return to Allah’s command. My husband asked me by Allah, so I hesitated to lie. Commander of the Believers, should I lie?” ʿUmar said: “Yes, you should lie. If a woman dislikes her husband, she should not tell him so, for few families are established on liking and love alone. People deal with one another on the basis of Islam and lineage-based nobility.”
Al-Bukhārī and Muslim narrated from Umm Kulthūm that she heard the Messenger of Allah say: “He who speaks words of good to reconcile people is not a liar.” Umm Kulthūm also said: “The Messenger of Allah did not permit lying in speech except in three cases: in war, in reconciling people’s disputes, and in a wife’s speech with her husband and a husband’s speech with his wife.” Thus, this ḥadīth clearly states that telling certain lies for the sake of establishing good relations and bringing about benefit is permissible.
Restricting a Wife to Her Husband’s Home
A husband has the right to keep his wife in his home, meaning that he may refuse to permit her to leave without his permission. However, he may not prevent her from visiting her parents. She may visit them once a week without her husband’s permission, or according to the custom prevailing in the relevant area. This is necessary and obligatory for maintaining family ties. If her parents are ill and no one else is available to care for them, she may go to care for them even against her husband’s objection, because this is obligatory. A husband has no right to prevent her from performing an obligatory duty. This is conditional, however, on the home being suitable for her residence and ensuring the stability and continuity of married life. Such a home is called a lawful residence according to the Sharīʿah. If the home is unfit for her and unsuitable for attaining the marital rights that are the purpose of marriage, she is not obliged to live there, because it is not a lawful residence. For example, other people may live there with whom it would be impossible for her to lead a married life, or whose presence would harm her, or threaten the safety of her belongings; the home may lack necessary residential facilities and furnishings; its environment may seem frightening and uncomfortable to her; or the neighbors may be bad.
Moving Residence with One’s Wife
A husband may move with his wife wherever he wishes, because Allah
said:أَسْكُنُوهُنَّ مِنْ حَيْثُ سَكَنْتُمْ، مِنْ وَجَدِكُمْ وَلَا تُضَارُوهُنَّ لِتُفَرِّقُوا عَلَيْهِنَّ
Meaning: “Lodge them wherever you dwell, according to your means, and do not harm them so as to make things difficult for them.” (Sūrat al-Ṭalāq: verse 6)
The prohibition expressed in this verse against placing wives in difficulty and harassing them indicates that moving a wife to another home must not be intended to cause her hardship or annoyance. Rather, its purpose should be to live together and fulfill the purpose of marriage. Conversely, if the husband’s purpose in moving her is to cause her hardship and distress—for example, so that she will return part of her dower to him as a gift, relinquish part of the maintenance he is obliged to provide, or because the house is unsafe for her—then she has the right to refuse to move to that new home. A court may grant her the right to reject an order to move to the new home. The jurists have also stipulated, for exercising this right, that it must be ensured that she suffers no harm in being moved to another home, such as danger along the route, being forced to endure unbearable hardship, or the possibility of harassment by enemies in the new home. If she fears any one of these problems, she may refrain from moving. In this connection, I quote some passages from a judicial memorandum:
“Since there is no fixed framework for determining whether moving a couple’s residence is beneficial or not, the jurists have left the matter open-ended. Without specifying any possible criteria, they entrusted it to the judge’s wisdom, discernment and justice. It is as clear as daylight that the husband’s feeling of security merely from the wife’s side is not enough to establish the benefit of compelling her to move. Rather, the circumstances of the husband and wife, and of both the place they are leaving and the place to which they are moving, must also be considered. These include: (1) any important advantages that cannot be obtained without moving; (2) whether, after covering the travel expenses of both spouses, he will have enough money left that, by investing it in business, he is strongly expected to earn enough profit to support himself and the entire family, or whether he can engage in a technical profession that helps him earn a livelihood for himself and the whole family; (3) whether the roads between the two areas are safe for life, property and honor; (4) whether the wife is sufficiently healthy and strong to endure all the hardships of traveling from her present residence to the new place; (5) whether the intended destination is free from various diseases and epidemics; (6) whether the difference in cold and heat between the two areas is not unbearable for the body; (7) whether the wife’s honor and dignity will remain as protected and secure in the new place as in the original place; and (8) whether moving will cause her financial, physical or moral harm. Many other matters of this kind must be considered in such circumstances; they vary according to time, place and person, and do not escape the notice of a competent judge.” This may be regarded as an excellent account of the matter.
The Condition Not to Expel a Wife from Her Home
Whoever marries a woman on the condition that he will not remove her from her home or take her to another city besides her own is obliged to fulfill that condition. Al-Bukhārī and Muslim narrated from ʿUqbah ibn ʿĀmir that the Messenger of Allah said: “The conditions whose fulfillment is most deserving are those by which you have made sexual relations with your wives lawful.” This was the view of Imām Aḥmad, al-Awzāʿī and Isḥāq ibn Rāhawayh. According to the other jurists, fulfilling this condition is not obligatory. The husband has the right to move his wife from her original residence. In explaining this ḥadīth, they say: “It is necessary to fulfill a condition connected with marital rights as required by the dower and the contract. A condition that is not required by the contract need not be fulfilled.” The conditions of marriage and the scholars’ disagreement concerning them have been discussed previously.
Preventing a Wife from Working
The scholars have divided a wife’s work into two categories. One type is work that impairs or harms the husband’s rights, or compels her to leave the home.
The other type is work that causes no harm. They have termed the first unlawful for the wife and the second lawful. Ibn ʿĀbidīn, among the Ḥanafī jurists, said: A wife may be prevented from work that infringes on the husband’s rights, harms him, or compels her to leave the home. There is no basis for preventing her from work that causes no harm. However, if a woman takes up as a profession a communal obligation that only women can perform, such as midwifery, her husband has no right to prevent her from leaving the home for that work.
A Woman Leaving Home to Acquire Islamic Knowledge
Learning the knowledge of all the acts Allah has made obligatory upon His servants is itself obligatory. If the husband is able to teach such knowledge, it is obligatory upon him to teach it to his wife. If he is unable or does not teach her, she has the right to go to scholars and to places where religious instruction is provided, even without her husband’s permission, to acquire Islamic knowledge. If the husband possesses Islamic knowledge and teaches it to her, she has no right to leave the home to acquire Islamic knowledge without his permission.
Disciplining a Disobedient Wife
Allah Most High said:
وَاللَّاتِي تَخَافُونَ نُشُوزَهُنَّ فَعِظُوهُنَّ وَاهْجُرُوهُنَّ فِي الْمَضَاجِعِ وَاضْرِبُوهُنَّ جِ فَإِنْ أَطَعْنَكُمْ فَلَا تَبْغُوا عَلَيْهِ سَبِيلاً
Meaning: “As for those wives whose disobedience you fear, admonish them, abandon them in their beds, and strike them. Then, if they obey you, do not seek any means against them.” (Sūrat al-Nisāʾ: verse 34)
A wife’s disobedience means disregarding and disobeying her husband’s commands and prohibitions, refusing to go to his bed, or leaving the home without his permission.
Admonishing a wife means reminding her of Allah and warning her by invoking fear of Allah. She should be reminded and warned that obeying her husband and fulfilling the rights he has over her are her duties. Her attention should be drawn to the sin incurred by disobeying her husband’s commands, and she should be told that if she remains disobedient, she will be deprived of maintenance.
Abandoning her in bed: It is not permissible to stop speaking for more than three days. Abū Hurayrah narrated: “The Messenger of Allah said: It is not lawful for a Muslim to stop speaking to his brother for more than three days.”
Regarding striking, it must be remembered that she may not be struck for the first instance of disobedience. In fact, some words are left implicit in the verse.
That is: “Admonish those wives whose disobedience you fear. (Then, if they still disobey,) abandon them in bed. (Then, if they remain disobedient,) strike them.” In other words, if she does not become restrained even after admonition and abandonment in bed, the husband has the right to strike his wife. The Messenger of Allah said: “You have rights over your wives: they must not allow anyone you dislike to tread upon your beds. … If they do allow them, then strike them lightly.” The face and dangerous places must be avoided when striking, for the purpose is instruction, not destruction. Abū Dāwūd narrated from the father of Ḥakīm ibn Muʿāwiyah al-Qushayrī: “I said: O Messenger of Allah, what rights do we have over our wives?”
He said: “When you eat, feed her; when you clothe yourself, clothe her; do not strike her in the face, insult her, or reproach her with abusive language; and if you abandon her, do so only within the home.”
A Wife’s Adornment to Please Her Husband
It is recommended for a wife to beautify and adorn herself for her husband’s pleasure by using kohl, various dyes, perfume and other cosmetics. Imām Aḥmad narrated from Karīmah bint Hammām that she said to ʿĀʾishah: “O Mother of the Believers, what is your view of henna?” ʿĀʾishah said: “My beloved—the Messenger—liked the color of henna but disliked its scent. It is not forbidden for you between two menstrual periods or near each menstrual period.”
29. Tabarruj
The Meaning of Tabarruj
Tabarruj is the exposure of something that must be concealed. Its literal and original meaning is to emerge from a fortress. It was later used to mean a woman’s emerging from modest reserve and displaying her attractions and beauty.
Tabarruj in the Qur’an
The word tabarruj is used in the Holy Qur’an in two places. First, in Sūrat al-Nūr:
وَالْقَوَاعِدُ مِنَ النِّسَاءِ اللَّتِي لَا يَرْجُونَ نِكَامًا فَلَيْسَ عَلَيْهِنَّ جُنَاحٌ أَنْ يَضَعْنَ ثِيَابَهُنَّ غَيْرَ مُتبرج بِزِينَةٍ وَأَنْ يَسْتَعْفِفْنَ خَيْرٌ لَّهُنَّ
Meaning: “As for elderly women who no longer expect marriage, there is no blame upon them if they set aside their outer garments without displaying their adornment. But to refrain from doing so is better for them.” (Verse 60)
Second, tabarruj is prohibited and condemned in Sūrat al-Aḥzāb:
وَلا تَبَرجْنَ تَبَرُّجَ الْجَاهِلِيةَ الأولى
“Do not display yourselves as in the former Age of Ignorance.” (Do not go about displaying yourselves.) (Sūrat al-Aḥzāb: verse 33)
Tabarruj Is Contrary to Both Islam and Civilization
Among the most important characteristics that distinguish human beings from lowly animals is the use of clothing and adornments. Allah Most High says:
يَا بَنِي آدَمَ قَدْ أَنْزَلْنَا عَلَيْكُمْ لِبَاسًا يُوَارِي سَوْاتِكُمْ وَرِيْهَا. وَلِبَاسُ التَّقْوَى، ذَلِكَ خَيْرٌ مِنْ آيَاتِ اللَّهِ، لَعَلَّهُمْ يَذْكُرُونَ .
Meaning: “O children of Adam, We have sent down to you clothing that covers your private parts and serves as adornment; but the clothing of piety is best. That is among Allah’s signs, so that they may take heed.” (Sūrat al-Aʿrāf: verse 26)
Clothing and adornment are signs of civilization and decency. Their absence is tantamount to a return to the level of beasts. When life proceeds along its natural course, it cannot turn backward unless it suffers such a serious decline that radically changes its views and thought, compelling it to turn back after forgetting—or pretending to forget—the progress it has achieved in civilization and humanity.
If clothing is an essential characteristic of civilized people, it is even more essential for women. It is the indispensable safeguard that protects their religion, honor, dignity, chastity, decency and modesty. These noble qualities are more closely associated with women and more necessary for them than for men. Therefore, modesty and reserve are a woman’s finest adornment. Indeed, a woman’s most valuable possessions are decency, modesty and chastity. Preserving these qualities is preserving the highest level of a woman’s humanity. A woman’s deviation from modesty and decency serves neither her interests nor the welfare of society—especially when sexual desire and attraction are the strongest and most difficult-to-control impulses of all time. Shamelessness and indecency stimulate and excite this attraction, making it unruly and unrestrained. The more barriers, restraints and controls imposed upon it, the more its excitement and unruliness are calmed, the more it comes under control, and the more it becomes decent and restrained in a manner befitting human beings and their humanity. For this reason, Islam has placed special emphasis on women’s clothing and given highly detailed explanations of it, even though detailing regulations is not generally the Qur’an’s practice. For example, Allah says in verse 59 of Sūrat al-Aḥzāb:
يَأَيُّهَا النَّبِيُّ قُلِ الْأَزْوَاجِكَ وَبَنَتِكَ وَنِسَاءِ الْمُؤْمِنِينَ يُدْنِينَ عَلَيْهِنَّ مِنْ جَلَابِيبِهِنَّ ما ذلِكَ أَدْنَى أَنْ يُعْرَفْنَ فَلَا يُؤْذَيْنَ ،
“O Prophet, tell your wives, your daughters, and the Muslim women to draw their outer garments over themselves. That will make it easier for them to be recognized, so they will not be harassed.” Addressing the Prophet’s wives, daughters, and the Muslim women proves that all women are responsible for observing this instruction. No woman is exempt from it, even if she is as virtuous as the Prophet’s daughters and wives. The Qur’an has placed immense emphasis on this matter and explained its details thoroughly. It has also explained in detail which parts of a woman’s body must be covered and which may remain exposed:
وَقُلْ لِلْمُؤْمِنَتِ يَغْضُضْنَ مِنْ أَبْصَارِهِنَّ وَيَحْفَظْنَ فُرُوجَهُنَّ وَلَا يُبْدِينَ زِينَتَهُنَّ إِلَّا مَا ظَهَرَ مِنْهَا وَلْيَضْرِبْنَ بِخُمُرِهِنَّ عَلَى جُيُوبِهِنَّ وَلَا يُبْدِينَ زِينَتَهُنَّ إِلَّا لِبُعُولَتِهِنَّ أَوْ آبَائِهِنَّ أَوْ آبَاءِ بُعُولَتِهِنَّ أَوْ أَبْنَائِهِنَّ أَوْا أَبْنَاءِ بُعُولَتِهِنَّ
Meaning: O Prophet, tell the believing women to restrain their gazes, guard their chastity, and not display their beauty except what normally appears. Let them draw their veils over their bosoms. And let them not display their beauty except to their husbands, fathers, fathers-in-law, sons, stepsons, brothers, nephews, maternal nephews, women of their household, female slaves in their possession, male attendants without sexual desire, or children who are unaware of women’s private parts. And let them not stamp their feet so as to reveal the beauty they conceal. (Surah al-Nur: 31)
Even if a woman is so old that she has no sexual desire and no one feels sexual desire toward her, this is still better for her.
Islam has given this matter such importance that it has even specified at what age a woman should begin observing hijab. The Messenger of Allah (peace and blessings be upon him) said: “O Asma, when a woman reaches maturity, nothing of her should be exposed except her palms and face.” He also said: “When a woman comes forward, a devil accompanies her, and when she withdraws, a devil also accompanies her.” Indeed, woman is the most harmful and dangerous trial for men. Thus, a woman’s nakedness and display of beauty destroy the most valuable elements of her humanity—modesty and dignity—and lower her beneath the level of her humanity. If her humanity is stained by this, nothing can purify it except the Fire of Hell. The Messenger of Allah (peace and blessings be upon him) said: “I have not seen two groups of the people of Hell: men carrying whips resembling the tails of cattle, and women who are clothed yet naked, who walk swaying in order to attract people to them. They will not enter Paradise, nor will they even smell its fragrance, although its fragrance can be detected from a great distance.”
During the Prophetic era, the Messenger of Allah (peace and blessings be upon him) would observe various signs of tabarruj (going about unveiled) and draw women’s attention to them, saying: This constitutes rebellion against Allah’s commandments. He would order them to return to Islam’s simple and straightforward path, hold husbands and guardians responsible for the consequences of this deviation and misguidance, and warn them of Allah’s punishment.
1. Musa ibn Yasar (may Allah be pleased with him) said: A woman wearing strongly scented cosmetics passed by Abu Hurayrah (may Allah be pleased with him). Abu Hurayrah asked her, “Where are you going?” She replied, “To the mosque.” He asked, “Have you applied perfume?” She said, “Yes.” Abu Hurayrah said, “Go back home and bathe, for I heard the Messenger of Allah (peace and blessings be upon him) say: ‘Allah does not accept the prayer of a woman from whom a strong fragrance emanates until she returns home and bathes.’” The purpose of ordering her to bathe was simply to remove the fragrance.
2. Abu Hurayrah (may Allah be pleased with him) also narrated that the Messenger of Allah (peace and blessings be upon him) said: “A woman who uses perfume should not come to the congregational prayer.” (Abu Dawud, al-Nasa’i)
3. It is narrated from A’ishah (may Allah be pleased with her) that she said: The Messenger of Allah (peace and blessings be upon him) was sitting in the Prophet’s Mosque. At that time, a woman from the Muzaynah tribe entered the mosque proudly, dressed in elaborate adornment. Seeing this, the Messenger of Allah (peace and blessings be upon him) said: “O people, forbid your women from coming to the mosque adorned and arrogantly. The women of the Children of Israel were not cursed until they began coming to the mosque adorned and arrogantly.” (Ibn Majah)
Umar (may Allah be pleased with him) was apprehensive about this grave temptation. Therefore, following the principle that prevention is better than cure, he preferred to address it in advance, before it occurred. It is narrated that one night he was going around investigating the people’s condition. Suddenly, he heard a woman saying: “Oh, is there no way to have a little wine? Otherwise, is there no way to go to Nasr ibn Hujjaj?”
Umar (may Allah be pleased with him) immediately said to himself: “Neither of these is possible during Umar’s rule.” The following morning, he summoned Nasr ibn Hujjaj to his court. He found him to be an exceptionally handsome man. He then ordered that his hair be shaved. This made him appear even more handsome, so he exiled him from the country and sent him to Syria.
The Cause of Misguidance
The cause of this deviation from Islam’s simple and straightforward path was ignorance and blind imitation. Then imperialism arrived and, encouraging this deviation, carried it to its extreme. As a result, a Muslim man came to see a Muslim woman without hesitation as indecent, shameless, displaying her form and beauty, moving about publicly in adornment, and walking with her bosom, neck, back, arms, and parts of her legs exposed. Muslim women even ceased to feel ashamed or embarrassed about cutting their hair short.
Wandering about wearing various kinds of cosmetic colors and face powder, using perfume, and dressed in splendid clothing became almost indispensable for them. This was not the end of the matter. Muslim young women began to regard various kinds of sin, adultery, dancing and singing, sports, theater, and gatherings in hotels and restaurants as matters of pride and signs of progress. This moral decline reached its extreme, especially during summer and at the seaside. Eventually, these things became commonplace. Then we began holding beauty contests. Women not only began appearing before men; every part of their bodies also came under examination, and each part began to be measured before the eyes of all kinds of men and women. Newspapers and other mass media played a far-reaching role in promoting these vile practices. By reducing women to this cheap level of animality, the mass media won applause and claimed to honor women. Clothing merchants also took advantage of the opportunity to launch thriving businesses.
The Consequences of Misguidance
As a consequence of this misguidance, sin and adultery spread widely, family bonds broke down, religious duties were neglected, attention to children was abandoned, marital problems became more intense and complex, and unlawful acts became easier in society than lawful ones. In short, this misguidance accelerated moral decline. Even the moral values to which people of all religions had been accustomed began moving toward destruction. This decline gradually reached a level that no Muslim could ever have imagined. Those who promoted the decline gave it an institutional and cultural form; various means of using cosmetics and adorning oneself were devised, numerous methods were invented, and institutions were established to teach these methods and techniques.
As examples of the reports published under the heading “With Women” in Cairo’s daily newspaper Al-Ahram, consider several of their headlines: “The First School for Teaching Women’s Hairdressing in Alexandria; A German Specialist Will Come to Teach at This School in One Month.” The report beneath this headline may be summarized as follows: This school was established through contributions from members of the Alexandria Women’s Hairdressing Association. … The association has also rented a small flat for the school so that it may serve as the foundation for a larger school in the future. The association invited all its members to attend and address the school’s students. Yesterday morning in Cleopatra, one of the association’s members inaugurated the school and delivered a speech. The school will teach hairdressing, hair dyeing, hair cutting, nail cutting, body scrubbing, massage, and similar subjects.
The association’s president announced in Cairo: “Next month, the association will organize a competition for Egypt’s national award in hairdressing.” The number of hairdressing salons in Cairo alone has reached one thousand. … Even amid this wild, stampeding flow of women’s beautification, display of beauty, and moral decline, efforts to develop opposing ideas and arrangements to preserve the purity and honor of Muslim families have not ceased. The daily Akhbar al-Yawm published an article on 29/9/1962 under the following headline:
“The University Student Does Not Regard the University as Different from a Clothing Showroom.”
The female author of the article under this headline says: Nowadays, every year when universities begin admitting students, newspapers and magazines start publishing articles, features, and similar pieces about what university students’ clothing and makeup should be like. Some call on them all to adopt the same clothing, while others demand that they refrain from makeup. I do not support these opinions, because I believe that allowing young women to choose their own clothing develops their personalities and helps them form an individual taste. … Most university students do not wear uniforms, nor are they deprived of makeup. Nevertheless, I often rebuke those who hold these extremist opinions, because in our view it is university-going young women themselves who encourage such demands. They do not know how to choose suitable clothing and makeup. In fact, most of the time they cannot distinguish between a university campus and a clothing showroom. They often go to campus wearing such tight clothing and high heels that they cannot move easily and naturally. They may sometimes forget to bring their books and lecture notes, but they never forget to bring their adornments and cosmetics. In my opinion, the main reason is that university students nowadays do not give proper importance to reading and attach greater importance to their appearance. In reality, the opposite should be the case, because we are living in a time when women’s education is being given greater value. This does not mean that I disdain the clothing and adornment of university-going young women. I am only calling for study to be given the highest priority, with makeup given relatively less importance afterward. Even if not for the sake of the campus, this is necessary for the sake of the skin, because excessive makeup harms the skin, especially at an age when the natural radiance of the face looks more beautiful than artificial makeup. At the same time, I call for easy, comfortable, loose-fitting clothing instead of tight clothing. A young woman’s foremost and ultimate goal in life at this age should not be to attract attention through excessive makeup and garish adornment. “Today, her priority must be to sharpen herself intellectually and enrich herself with refined taste and good manners.” Sitting at a secretary’s desk to answer a director’s telephone should not be her highest ambition. The position of a minister is still open before her. Another British female journalist, after visiting Cairo, wrote in an article criticizing Cairo’s excessively modern women:
“I was saddened as soon as I landed at the airport. I had expected to encounter a true Oriental beauty. By this I do not mean a veiled woman wearing a burqa and niqab. I mean a tasteful Oriental beauty, wearing practical clothing with an Oriental character and moving in an Oriental manner. But I found none of that. The kind of women one encounters at any European airport are the kind I encountered here. The same dress, the same hairstyles, the same makeup, and even the same manner of speaking and walking. Even the languages, depending on the situation, were the same—some spoke English and others French. This conception of the Oriental beauty saddened me: that by adopting the dress and culture of a Western woman, she becomes an imitation of the Western woman. They have forgotten that they can achieve advancement and progress while retaining their own beautiful Oriental clothing and appearance.”
An article was published in the daily Al-Sabt on Saturday, 9 June 1962, under the following headline: “An American Writer’s Appeal: Stop Free Mixing Between Young Men and Women; Restrict Women’s Freedom.” Presenting an important and frank statement under this headline, the newspaper said: “The American female journalist Helsiane Cansbury recently left Cairo after staying there for several weeks. During her visit, she toured various schools, universities, camps populated by young men, social institutions, juvenile centers, women’s and children’s centers in various districts, and numerous families. It was an investigative visit concerning family and youth problems in Arab society. Helsiane is a traveling correspondent for approximately 250 American newspapers. She sends an article every day, which millions of people read and which addresses the problems of young people under twenty. She has worked in radio and television for more than twenty years and has visited all the countries of the world. She is currently fifty-five years old. After spending one month in Egypt, this American journalist stated in her report:
“Arab society is a complete and peace-loving society. It is appropriate for those who live in this society to follow its customs and traditions. Those traditions impose reasonable controls on young men and women. This society differs from European and American society. It possesses inherited traditions that impose obligatory controls on women, make devotion and respect toward parents obligatory, and, above all, make rejection of the West’s unrestrained debauchery obligatory—debauchery that currently endangers the existence of society and family in America and Europe. Therefore, the restrictions and regulations that Arab society imposes on all girls and young women, including those under twenty, are suitable and beneficial for them. I therefore advise Arabs to preserve your morality and traditions, stop free mixing, control the freedom of adolescent girls and young women, and return to the age of veiling. This is better for you than unrestricted and unbridled freedom, licentiousness, and American and European shamelessness. Stop interaction between young men and women under twenty. We in America have suffered greatly because of this. American society, full of every kind of debauchery and licentiousness, has become a crippled society. Young men and women under twenty who have fallen victim to debauchery, licentiousness, and free mixing live in American prisons, bars, and clandestine houses. The freedom we gave our young adolescents turned them into terrorists, drug users, and alcoholics. In American and European society, free mixing, licentiousness, and unrestrained freedom have threatened the existence of families and placed morality and values in crisis. Girls under twenty mix with young men in modern society, dance, drink alcohol, smoke, and use drugs—all in the name of personal freedom. What is astonishing in America and Europe is that a girl under twenty plays and associates with whomever she wishes right before her family’s eyes. Indeed, to speak frankly, she does these things while challenging her parents, teachers, and guardians in the name of personal freedom and the right to free interaction. She marries someone within a few minutes and divorces him within a few hours. Sometimes she remarries and divorces again.”
Remedy for the Distressing Situation
To escape this destructive situation, there is no alternative to adopting a firm and resolute plan, within which the following measures should be taken:
1. Religious awareness must be expanded, and people must be warned of the terrible consequences of surrendering to this powerful current.
2. We must collectively raise our voices demanding the enactment of laws that guarantee the protection of character and values and ensure strict punishments for those who violate them.
3. Newspapers and all mass media must be prohibited from publishing objectionable and nude pictures, and supervision must be established over clothing designers.
4. Beauty contests and obscene dancing and singing must be prohibited, and all forms of shamelessness must be discouraged.
5. The wearing of modest clothing must be made compulsory.
6. Everyone must first implement these measures personally and then call others toward them.
7. Modesty, shyness, hijab, and an upright way of life must be praised and encouraged.
8. Arrangements must be made to spend free moments in constructive activities, so that no opportunity arises to engage in wrongdoing.
9. Time must be incorporated into the plan for remedy, because this task requires a long time.
Removing a Doubt
Some people prefer to compromise with prevailing customs, traditions, and social systems, arguing that this is an inevitable demand of modernity and progress. We are not opposed to development, advancement, and progress. However, we do not support any development or progress that threatens to eradicate religion, morality, and values. Religion, religiously based morality, and values are received directly from Allah’s revelation. They are part of Allah’s eternal and everlasting laws, applicable to all times and places. Allah’s religion, Islam, has opened the entire natural world before human reason and conscience so that people may contemplate it, benefit from the forces and blessings within it, and direct life toward the highest development and prosperity ordained for them. Islam is in no way opposed to or an obstacle to development and progress. It opposes only development and progress that follows desires and conflicts with morality.
30. A Husband Adorning Himself to Please His Wife
It is mustahabb for a husband to adorn himself to please his wife. Ibn Abbas (may Allah be pleased with him) said: Just as my wife adorns herself for me, I adorn myself for her. I do not like to demand all my rights from her down to the last detail, because then she would want to demand all her rights from me down to the last detail. Allah Himself has said: “Women have rights similar to the rights incumbent upon them, according to what is fair.”
Regarding this statement of Ibn Abbas, al-Qurtubi says that the scholars stated: “There are no fixed rules for men’s adornment. It depends on how they give practical form to what accords with their judgment and circumstances. A particular type of adornment may seem suitable in the prevailing era, while another may seem unsuitable. One may suit young men but not the elderly, while another may not suit young men but may suit the elderly. The same applies to clothing. In all these matters, the wife’s rights and pleasure must be given priority, and one should thereby strive to gain her acceptance and accord with her desires. The primary aim should be adornment that pleases and delights the wife, so that she is protected from becoming attracted to other men. Using perfume, cleaning the teeth, using a tooth-stick between them, cleaning the body, removing unnecessary hair, maintaining purity, and cutting the nails are plainly desirable for everyone. Applying henna to gray hair is excellent adornment for the elderly, and wearing a ring is good adornment for both young and old. A ring is a lawful ornament for men. Moreover, it is the husband’s duty to know the proper time for his wife’s desire for men and to keep her free from attraction to another man. If a husband ever feels that he is weak in satisfying his wife’s sexual needs, he should take medication that enhances sexual potency, so that his wife may be prevented from becoming attracted to another man. However, some people have taken the destructive and erroneous path of using intoxicants such as cannabis and opium for this purpose. This amounts, on the one hand, to permanently crippling sexual potency and, on the other, to committing injustice and wrongdoing against oneself and one’s family. The scholars have unanimously ruled that using cannabis, opium, and similar intoxicants is completely haram and punishable like drinking alcohol. Whoever considers it lawful becomes an apostate and unbeliever outside Islam. Permanent separation from his wife then becomes unavoidable.”
The Example of Umm Zara’s Husband
It is narrated in al-Nasa’i that A’ishah (may Allah be pleased with her) said: The occasion of this hadith was that, during the Age of Ignorance, I used to boast about my father’s immense wealth and prosperity. My father possessed wealth amounting to thousands of uqiyyahs. The Messenger of Allah (peace and blessings be upon him) said to me: “O A’ishah, stop. To you, I am like Abu Zara to Umm Zara’s husband.” Another narration states that the occasion of the hadith was as follows: Once, A’ishah and Fatimah had an argument. Just then the Messenger (peace and blessings be upon him) arrived. He said: “O Humayra (A’ishah), will you not stop arguing with my daughter? Your example with me is like that of Umm Zara with Abu Zara.” A’ishah (may Allah be pleased with her) said: “O Messenger of Allah, tell us the story of those two.” The Messenger of Allah (peace and blessings be upon him) then said: Eleven women lived in a village. Their husbands lived elsewhere. The women said to one another: “Come, let us each tell the truth about our husband’s character and disposition. We will not lie.” According to some, this village was in Yemen. Others say that these women were residents of Makkah. Still others say that they were women from the Age of Ignorance.
‘A’ishah (may Allah be pleased with her) narrated the story she heard from the Messenger (peace and blessings be upon him): Once eleven women sat together in a gathering. At one point, they agreed among themselves that they would disclose truthful information about their respective husbands and conceal nothing. The first said: “My husband is so emaciated and thin that one feels disgust on seeing him. He is extremely restless and harsh-spoken, miserly and ill-natured. Consequently, everyone is disappointed with him, and no one wants to come near him.” The second woman said: “There is no good quality in my husband. He has so many faults that it would take a long time to enumerate them. In short, it is enough to say that he is extremely hot-tempered.” The third said: “Although my husband is an immoral man, I love him. If he learns that I am speaking ill of him, he will certainly divorce me. Therefore, it is better for me to remain silent.” The fourth said: “My husband is like the night of comfort to the people of Tihamah. He is good in conduct. I have suffered no harm from him and am safe. His character is not bad, so there is no difficulty in living with him. I am in perfect peace with him.” The fifth said: “As long as my husband remains at home, he is either asleep or leaping about. But outside, he is armed against the enemy. He is extremely generous and accustomed to giving freely.” The sixth said: “When my husband eats or drinks anything, he consumes every bit of it. And when he sleeps, he sleeps wrapped in his own blanket, leaving me alone. He does not even extend a hand toward me to try to understand what I want.” The seventh said: “My husband is a fool. If any disease breaks out in the land, it will certainly afflict him. He is very skilled at beating his wife. When he beats her, he will either break a bone, split her head, or do both.” The eighth said: “My husband has exceptionally soft skin and is fragrant.” The ninth said: “My husband is very tall, brave, generous and sociable.” The tenth said: “My husband owns many camels. However, he sacrifices them so frequently for guests that they hardly get an opportunity to graze in the fields. When the camels hear the sound of music at their master’s house, they know for certain that the time for their slaughter is near.” The eleventh woman said: “My husband’s name is Abu Zar‘. And what a great Abu Zar‘ he is! He filled my ears with ornaments. He fed me so many varieties of food that my body became plump. He immersed me in every kind of pleasure and honored me. With great effort, he married me from a wealthy family. Here too he filled me with immense wealth. Whatever I ask him for, he never refuses to give it, nor does he become annoyed. I spend the first part of the day sleeping. No one wakes me. I drink various beverages at intervals. And what can I say about my mother-in-law, Abu Zar‘’s mother? Whenever she goes somewhere, her bag is so full of provisions that she cannot walk quickly while carrying it. She has a vast, spacious house. And would you hear about my son, Abu Zar‘’s son? He sleeps on a small separate bed. When he comes into the room, he does not trouble me much. A little food is sufficient for him. And my daughter, the daughter of Abu Zar‘? She is devoted and obedient to her parents. In beauty and figure she is incomparable. The neighboring women burn with envy when they see her. And would you hear about my maidservant? She never discloses any of our secrets and commits no theft. She keeps the house clean and orderly. One day Abu Zar‘ went out of the house very early. He met a woman who, despite being the mother of two children, was a young girl. He immediately divorced me and married her. After that, I married a nobleman who rode swift horses. He kept me in great abundance, gave me many gifts, and said: ‘O Umm Zar‘, give plenty of food to your parents and siblings.’ Even if I gathered together everything he gave me, it would not equal the smallest vessel of Abu Zar‘ in which food was always cooked.” Then ‘A’ishah (may Allah be pleased with her) said: The Messenger of Allah (peace and blessings be upon him) said: “O ‘A’ishah, Abu Zar‘ was to Umm Zar‘ as I am to you. However, he divorced her, whereas I will never divorce you.” ‘A’ishah (may Allah be pleased with her) said: “O Messenger of Allah, you are rather better for me than Abu Zar‘.” (Bukhari, Muslim, Nasa’i)
31. The Sermon Before Marriage
Before the marriage contract, the person conducting the contract or someone else should deliver at least a sermon or speech containing praise of Allah and blessings upon the Messenger of Allah (peace and blessings be upon him). This is recommended.
1. Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “A sermon that contains no tashahhud is like a hand afflicted with leprosy.” (Abu Dawud, Tirmidhi)
2. Abu Hurayrah (may Allah be pleased with him) also narrated that the Messenger of Allah (peace and blessings be upon him) said: “Any important matter that is not begun with praise of Allah is devoid of blessing.” (Abu Dawud, Ibn Majah)
Here, what is meant is not merely praise of Allah, but Allah’s majestic deeds and attributes in general. This interpretation reconciles this narration with other narrations. It is best to deliver the sermon of need:
‘Abdullah ibn Mas‘ud (may Allah be pleased with him) narrated that he said: The Messenger of Allah (peace and blessings be upon him) was the proponent of every beneficial statement and the ultimate beneficial statement. According to another narration: He was the proponent of every introductory beneficial statement and concluding beneficial statement. Therefore, he taught us both the sermon of the prayer and the sermon of need. The sermon of the prayer is: (tashahhud) “All greetings, prayers and pure words are for Allah. Peace be upon you, O Prophet, and Allah’s mercy and blessings. Peace be upon us and upon Allah’s righteous servants. I testify that there is no god except Allah, and I further testify that Muhammad (peace and blessings be upon him) is His servant and Messenger.” And the sermon of need (which is recited at marriage) is:
إِنَّ الْحَمدَ لِلَّهِ، نَحْمَدُهُ وَنَسْتَعِينُهُ وَنَسْتَغْفِرْهُ، وَنَعْنُ بِهِ مِنْ شُورُورِ أَنْفُسِنَا وَمَنْ سَيِّئَاتِ أَعْمَالِنَا . وَمَنْ يَهْدِ اللَّهَ فَلَا مُضِلَّ لَهُ، وَمَنْ يُضْلِ الله فَلَا هَادِي لَهُ، وَأَشْهَدُ أَنْ لَّا إِلَهَ إِلَّا اللَّهُ وَحْدَهُ لَا شَرَيْكَ لَهُ وَأَشْهَدَ أَنْ مُحَمَّدًا عَبْدَهُ وَرَسُولَهُ …
Meaning: “All praise is for Allah. We praise Him, seek His help and ask Him for forgiveness. We seek refuge in Him from the evil within ourselves and from our evil deeds. Whoever Allah guides, none can misguide; and whoever Allah misguides, none can guide. I testify that there is no god except Allah; He is One and has no partner. I testify that Muhammad (peace and blessings be upon him) is His servant and Messenger.”
Then the following three verses from the Qur’an should be added to the sermon:
يَأَيُّهَا الَّذِينَ آمَنُوا اتَّقُوا اللهَ حَقَّ تُقَتِهِ وَلَا تَمُوتُنَّ إِلَّا وَأَنْتُمْ مُسْلِمُونَ
1. “O believers, fear Allah as He should be feared, and do not die except as Muslims.” (Al ‘Imran, verse 102)
يَأَيُّهَا النَّاسُ اتَّقُوا رَبَّكُمُ الَّذِي خَلَقَكُمْ مِّن نَّفْسٍ وَاحِدَةٍ وَخَلَقَ مِنْهَا زَوْجَهَا وَبَثَّ مِنْهُمَا رِجَالًا كَثِيرًا وَنِسَاءً وَاتَّقُوا اللَّهَ الَّذِي تَسَاءَلُونَ بِهِ وَالْأَرْحَامَ ، إِنَّ اللَّهَ كَانَ عَلَيْكُمْ رَقِيبًا
2. “O humankind, fear your Lord, who created you from a single person, then created his spouse from him, and spread from the two of them many men and women. Fear Allah, in whose name you appeal to one another, and honor family ties. Surely Allah is ever watchful over you.” (Surat al-Nisa’, verse 1)
يَأَيُّهَا الَّذِينَ آمَنُوا اتَّقُوا اللهَ وَقُولُوا قَوْلًا سَدِيدًا يُصْلِحْ لَكُمْ أَعْمَالَكُمْ وَيَغْفِرْ لَكُمْ ذُنُوبَكُمْ ، وَمَنْ يُطِعِ اللَّهَ وَرَسُولَهُ فَقَدْ فَازَ فَوْزًا عَظِيمًا
3. “O believers, fear Allah and speak words of正ness. He will rectify your deeds for you and forgive your sins. Whoever obeys Allah and His Messenger has certainly achieved a great triumph.” (Surat al-Ahzab, verses 70–71)
[Ibn Majah] Marriage is valid even without a sermon or speech. A man from Banu Sulaym reported that, concerning the woman who had offered herself to the Messenger of Allah (peace and blessings be upon him) so that he might marry her, this man made an unsuitable proposal to the Messenger. The Messenger of Allah (peace and blessings be upon him) then said: “I give the two of you in marriage in exchange for whatever portion of the Qur’an you have memorized.” He delivered no other sermon.
Wisdom or Rationale
It is stated in Hujjatullah al-Balighah: In the pre-Islamic era, people delivered sermons before the marriage contract, recounting the glory of their own tribes. Through this, they sought to achieve their objectives. It was beneficial to retain this practice, because the main purpose of the sermon is proclamation and bringing the matter of marriage to the ears and eyes of the public. The purpose of announcing the marriage is to distinguish it from fornication. Moreover, a sermon is not used except for important matters, and making marriage an important and dignified occasion is a noble objective. For this reason, the Messenger (peace and blessings be upon him) retained the basic existence of this pre-Islamic practice but changed its characteristics. To change its characteristics, he connected mention of the relevant act with it and introduced the practice of describing Allah’s majesty and signs in every matter, so that the true religion of Allah would continue to be proclaimed and spread and its signs would become manifest. Therefore, he introduced into the sermon various forms of remembrance: praising Allah, seeking Allah’s help, asking Allah to forgive sins, seeking refuge in Him from Satan, relying upon Him, reciting the tashahhud and reciting various Qur’anic verses. Indicating this effectiveness of the sermon, he said: “A sermon that contains no tashahhud is like a hand afflicted with leprosy.” He also said: “A statement that is not begun with praise of Allah is leprous.” He further said: “The distinction between lawful and unlawful is the making of noise and beating the drum at marriage.”
Supplication After the Marriage Contract
After the marriage contract has been completed, it is recommended to supplicate for both the husband and wife in the manner narrated from the Messenger of Allah (peace and blessings be upon him).
1. Abu Hurayrah (may Allah be pleased with him) narrated that when someone married, the Messenger of Allah (peace and blessings be upon him) would say:
بَارَكَ اللهُ لَكَ وَبَارَكَ عَلَيْكَ وَجَمَعَ بَيْنَكُمَا فِي خَيْرِ
“May Allah bless you in this marriage, shower blessings upon you, and unite you both in goodness.”
2. ‘A’ishah (may Allah be pleased with her) narrated: When the Messenger of Allah (peace and blessings be upon him) married me, my mother came to me and took me into the house. I saw a group of Ansari women gathered there. They said: “May you remain in goodness, may you remain in blessing, and may you remain in goodness that comes flying.” —Bukhari, Abu Dawud.
3. Al-Hasan (may Allah be pleased with him) narrated: When ‘Aqil, the son of Abu Talib, married a woman from Banu Jusham, they said: “May you live with goodness and offspring.” ‘Aqil (may Allah be pleased with him) said: “Say as the Messenger of Allah (peace and blessings be upon him) said: May there be blessing in your household, and may blessings be showered upon you.” —Nasa’i.
32. Announcing the Marriage
From the perspective of Islamic law, it is preferable to announce the marriage so that it is distinguished from a prohibited secret marriage. It should also be announced to express joy over the pure act that Allah has made lawful. In fact, it is an act worthy of being publicized, so that people of every class, relatives and strangers alike, may know of it. Another purpose of announcing marriage is that if there are people in society who prefer remaining single and unmarried, they may be encouraged to marry. In this way, marriage becomes more widespread in society.
Marriage may be announced in whatever manner is customary in society and practiced by every class and tribe, provided that no act prohibited by Islamic law—such as drinking alcohol, unrestricted mixing of men and women, and the like—is associated with it.
1. ‘A’ishah (may Allah be pleased with her) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Announce the marriage, hold the marriage in the mosque, and beat the drum for it.” —Ahmad, Tirmidhi.
There is no doubt that holding the marriage ceremony in the mosque is the most effective means of announcing it, because the mosque is a place where people gather. In particular, for the Muslims of the early period, the mosque was like a club or community center.
2. Yahya ibn Salim narrated that he said: I said to Muhammad ibn Hatib: I married two women, and at neither marriage was there any drumbeat announcing it. Muhammad (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) said: “The distinction between the lawful and the unlawful—that is, between marriage and fornication—is beating the drum to announce it.”
Music at Weddings
For the purpose of encouraging innocent amusement and creating a joyful atmosphere, Islam has permitted music at wedding ceremonies and declared it acceptable. However, this music must be free of clownery, shamelessness and obscenity.
1. ‘Amr ibn Sa‘d (may Allah be pleased with him) said: I went to Qarazah ibn Ka‘b and Abu Mas‘ud al-Ansari at a wedding ceremony and saw some slave girls singing. I said: Both of you are Companions of the Messenger of Allah (peace and blessings be upon him) and veterans of Badr. Is this happening in your presence? They both said: “If you wish, sit with us and listen; otherwise, leave. We have been permitted amusement at wedding ceremonies.” —Nasa’i, Hakim.
2. ‘A’ishah (may Allah be pleased with her) escorted Furay‘ah bint As‘ad to the bridal chamber and accompanied her that night to the house of her husband, Nabit ibn Jabir al-Ansari. Later, the Messenger (peace and blessings be upon him) asked: “O ‘A’ishah, was there no musical entertainment with you? The Ansar greatly love music.” (Bukhari, Ahmad) In another narration of this hadith it says: “Did you send with that girl a maid who could beat the drum and sing?” ‘A’ishah (may Allah be pleased with her) said: “O Messenger of Allah, what should she sing?” The Messenger of Allah (peace and blessings be upon him) said: “She should say: ‘We have come to you, we have come to you; greet us and we will greet you. Had there been no red gold, this girl would not have come to your settlement. Had brown wheat not grown, your unmarried girls would not have become well-nourished.’”
Al-Rubayyi‘ bint Mu‘awwidh said: When I was married, the Messenger of Allah (peace and blessings be upon him) came to me and sat on my bed. Some young slave girls among us began beating the drum and lamenting, mentioning the virtues of my forefathers who had been killed at the Battle of Badr. (Al-Rubayyi‘’s father, Mu‘awwidh, and her two uncles, ‘Awf and Mu‘adh, had been martyred at Badr.) Suddenly, one of the slave girls said: “Now there is a Prophet among us who knows what will happen tomorrow.” At this, the Messenger of Allah (peace and blessings be upon him) said: “Leave aside this last statement and say what you were saying before.” (The Messenger of Allah (peace and blessings be upon him) forbade this statement because no one knows the unseen except Allah. Another hadith says: The Messenger of Allah (peace and blessings be upon him) said: “No one knows what will happen tomorrow except Allah.”) —Bukhari, Abu Dawud, Tirmidhi.
33. Giving Good Counsel to the Bride at the Time of Marriage
It Is Recommended to Give the Wife Good Counsel
Anas (may Allah be pleased with him) said: When the Companions sent a woman to her husband’s home, they would advise her to serve her husband and fulfill his rights.
A Father’s Advice to His Daughter at the Time of Marriage
‘Abdullah ibn Ja‘far ibn Abu Talib gave his daughter the following advice: “Avoid resentment and reproach, for they give rise to hatred and enmity. Apply kohl to your eyes; it is the best adornment. And water is the finest perfume.”
A Husband’s Advice to His Wife
Abu al-Darda’ (may Allah be pleased with him) said to his wife: “When you see that I am angry, calm my anger; and when you see me angry with you, I will make you happy. Otherwise, I will not stay with you.” A certain husband said to his wife: “Adopt a policy of forgiveness with me, and you will receive my everlasting love. When I am angry, do not speak to me during the height of my anger. And never tap me as one taps a drum. You do not know how a husband spends his days when he is away from his wife. Do not complain excessively, for that only wastes strength. If my heart ever rejects you, remember that hearts are changeable. I have seen that when love and emotional distress come together in someone’s heart, love does not endure; it departs.”
A Mother’s Advice to Her Daughter Concerning Marriage
‘Amr ibn Hajr, the king of Kinda, proposed to and married a woman named Umm Iyas. When the time for the bridal night approached, Umm Iyas’s mother, Umamah, met with her privately and gave her daughter some advice through which the foundations of a happy married life and the duties of a wife toward her husband may be understood. Umamah said: “O my daughter, if advice were given as a sign of additional excellence, I would have reserved it for you. But it is actually a means of awakening the heedless and assisting the intelligent. If any girl could dispense with her husband because her parents were wealthy and because her parents were intensely dependent on her, I would be the one most able to dispense with a husband. But women were created for men, and men were created for women. O my daughter, you have left the environment from which you emerged, abandoned the home in which you were raised, gone to an unfamiliar dwelling, and become the companion of an unfamiliar partner. He has now become your guardian and the one with authority over you. So, if you wish to make him your grateful servant, become his maidservant. And remember concerning him ten pieces of advice that will become a precious treasure for you.”
First and second: Show devotion and sincerity toward him by being content with little, and listen attentively to what he says and obey him.
Third and fourth: Take care of his eyes and nose. Let his eyes see nothing bad in you, and let his nose smell no unpleasant odor from you.
Fifth and sixth: Pay attention to his sleeping and eating times. Continual hunger provokes anger, and disturbed sleep causes irritation.
Seventh and eighth: Protect his wealth and look after his family. Remember that, regarding wealth, good fortune is the main factor, while sound management is the main factor in caring for a family.
Ninth and tenth: Do not disobey any command of your husband, and do not disclose any of his secrets. If you disobey his command, the fire of resentment will burn in his heart. If you disclose his secrets, you will not remain safe from his retaliation. When he is worried, do not show happiness before him; and when he is happy, do not display sadness before him.
34. The Walimah or Wedding Feast
1. Definition: The lexical meaning of walimah is gathering together. It is so named because the husband and wife come together at a feast. In the lexicon, any feast connected with marriage, or a feast held for any other invitation, is also called a walimah.
According to most scholars, the walimah is a confirmed Sunnah.
1. The Messenger of Allah (peace and blessings be upon him) said to ‘Abd al-Rahman ibn ‘Awf: “Hold a walimah, even if only with one sheep.”
2. Anas (may Allah be pleased with him) narrated: The Messenger of Allah (peace and blessings be upon him) did not hold a walimah for any of his other wives as he did for Zaynab. For Zaynab, he held a walimah with one sheep. (Bukhari, Muslim)
3. Buraydah (may Allah be pleased with him) said: When ‘Ali (may Allah be pleased with him) proposed to Fatimah (may Allah be pleased with her), the Messenger of Allah (peace and blessings be upon him) said: “A walimah is necessary for the marriage.” (Ahmad)
4. Anas (may Allah be pleased with him) said: “The Messenger of Allah (peace and blessings be upon him) did not hold a walimah for any of his wives as he did for Zaynab. He sent me to invite people and fed them bread and meat until they were satisfied.”
5. Bukhari narrated that the Messenger of Allah (peace and blessings be upon him) held a walimah for one of his wives with two mudd of barley.
The reason for this difference is not that one wife was given superiority over the others. The reason is that at one time there was hardship and scarcity, while at another time there was prosperity.
3. The Time of the Walimah: The time of the walimah is immediately before or after the marriage contract, or immediately before or after the bridal night. There is latitude in this according to customary practice. According to Bukhari, the Messenger of Allah (peace and blessings be upon him) invited people after consummating the marriage with Zaynab.
4. Accepting the Invitation: When someone is invited to a wedding walimah, accepting the invitation is obligatory upon the invited person. This gives importance to the invited person, expresses joy for him, and makes him happy.
1. Ibn ‘Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “When any of you is invited to a walimah, he must attend it.”
2. Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever rejects an invitation has disobeyed Allah and His Messenger.”
3. Abu Hurayrah (may Allah be pleased with him) also narrated that the Messenger of Allah (peace and blessings be upon him) said: “If I were invited to go a mile, I would go; and if I were invited to go a cubit, I would also go there.” (All these hadiths were narrated by Bukhari)
However, if the invitation is issued generally, without being addressed to any particular person or group, accepting it is neither obligatory nor recommended. For example, the herald says, “O people, come to the wedding feast,” without specifying anyone; or he is told, “Invite whoever you find.” This is what the Messenger of Allah, peace and blessings be upon him, once did. Anas, may Allah be pleased with him, said: The Messenger of Allah, peace and blessings be upon him, got married and consummated his marriage with his wife. My mother, Umm Sulaym, then prepared hais—a dish made of dates, clarified butter, and flour—and placed it in a vessel. She said, “Take this to the Messenger of Allah, peace and blessings be upon him.” I took it to him. He said, “Put it here.” Then he said, “Invite so-and-so, so-and-so, and whoever you find.” He mentioned the names of certain people, and I invited everyone I found. —Muslim.
Some hold that accepting an invitation is a communal obligation; others hold that it is recommended. The former opinion, however, is more reasonable. This is the ruling concerning an invitation to the wedding feast arranged by the bride’s family. According to most scholars, attending the wedding feast arranged by the groom’s family is obligatory. Some scholars of the Shafi‘i school say that accepting every invitation is obligatory. Ibn Hazm holds that this latter opinion was held by most of the Companions and Successors, because the hadith indicates that accepting all kinds of invitations is obligatory, whether the invitation is to a wedding feast or to something else.
Conditions under which accepting an invitation is obligatory
Hafiz Ibn Hajar said in Fath al-Bari: There are eight conditions for accepting an invitation to be obligatory:
1. The person issuing the invitation should be self-sufficient, mature, and intelligent.
2. The invitation should not be extended only to the wealthy while excluding the poor.
3. The purpose of the invitation should not be to show affection toward a particular person or to dispel fear of a particular person.
4. The person issuing the invitation should be Muslim.
5. It should pertain to the first day.
6. It is necessary to accept the invitation of the person whose invitation is received first.
7. No reprehensible activity should take place at the venue that would make participation difficult for someone attending.
8. The invited person should have no legitimate excuse.
Baghawi said that if there is an excuse or the journey is long, there is no objection to being absent.
It is reprehensible to invite only the wealthy while excluding the poor:
It is reprehensible to invite the wealthy to a wedding feast while excluding the poor. Abu Hurayrah, may Allah be pleased with him, reported that the Messenger of Allah, peace and blessings be upon him, said: “The worst wedding feast is one at which those who wish to attend are prevented from coming, while those who are unwilling to attend are invited.” —Muslim.
Al-Bukhari narrated from Abu Hurayrah, may Allah be pleased with him: “The worst wedding feast is one to which only the wealthy are invited while the poor are excluded.”
35. Marriage of Non-Muslims
The general principle concerning the marriages of non-Muslims is that, when they accept Islam, the aspects of their previous conduct that are approved by Islamic law are maintained.
The Messenger of Allah, peace and blessings be upon him, never concerned himself with how the marriages of unbelievers had been contracted or whether they should be considered invalid because they had not fulfilled the conditions of Islam. He considered only the circumstances at the time when the husband accepted Islam. If it was lawful for him to remain with his wife, he maintained the marriage, regardless of whether it had been contracted during the Age of Ignorance and whether it had been concluded according to Islamic conditions, through a guardian, witnesses, and so forth. If the marriage was such that it could not lawfully be maintained, he did not maintain it—for example, if, at the time he accepted Islam, his wife was a mahram relative or one of two or more sisters married to him simultaneously. This was the principle followed by the Messenger, peace and blessings be upon him. He did not maintain anything that conflicted with it. —Allamah Ibn al-Qayyim.
If, at the time of accepting Islam, a man has two full sisters as wives simultaneously, he is permitted to retain one and dismiss the other. Dahhak ibn Fayruz narrated from his father, who said: When I accepted Islam, I had two women as wives who were full sisters to each other. The Messenger of Allah, peace and blessings be upon him, ordered me to divorce one of them. —Ahmad, Abu Dawud, al-Tirmidhi, al-Nasa’i, Ibn Majah, al-Shafi‘i, al-Daraqutni, and al-Bayhaqi.
If someone has more than four wives when he accepts Islam, he must choose four: Ibn Umar, may Allah be pleased with him, said: When Ghilan al-Thaqafi accepted Islam, he had ten wives from the Age of Ignorance, and they all accepted Islam with him. The Messenger of Allah, peace and blessings be upon him, ordered him to choose four of them and retain them. —Ahmad, al-Tirmidhi, Ibn Majah, al-Shafi‘i, Ibn Hibban, and al-Hakim.
When one of the husband and wife accepts Islam: If both husband and wife accept Islam after marrying as non-Muslims, it has already been stated that they will remain married if their marriage is permissible in Islam; otherwise, they will be separated. If one accepts Islam and the other does not, it must be determined whether the one who accepted Islam is the husband or the wife. If it is the wife, the marriage is annulled and she must observe the waiting period. If the husband accepts Islam while the wife is still within her waiting period, he has the greater right to her. It is known from hadith that when Atikah, the daughter of Walid ibn al-Mughirah, accepted Islam one month before her husband Safwan, and he later accepted Islam, the Messenger of Allah, peace and blessings be upon him, maintained their marriage. Ibn Shihab said: Whenever a woman migrated to the Messenger of Allah, peace and blessings be upon him, while her husband remained an unbeliever in the land of unbelief, separation occurred between her and her husband because of her migration. However, if her husband migrated before her waiting period ended, the marriage remained valid. Likewise, if the husband accepted Islam after the waiting period had ended and both agreed to maintain the marriage, their previous marriage remained valid until the wife married someone else, however long that period might be. The Messenger of Allah, peace and blessings be upon him, returned his daughter Zaynab to her husband Abu al-As after two years, maintaining their original marriage. He did not conduct a new marriage contract or specify a new dower. —Ahmad, Abu Dawud, and al-Tirmidhi.
Ibn al-Qayyim said: The Messenger of Allah, peace and blessings be upon him, did not separate a woman from her husband when the husband had accepted Islam but she had not. Rather, when the other spouse accepted Islam, the marriage remained valid as long as the wife had not married someone else. This is his well-known Sunnah. Imam al-Shafi‘i said: Abu Sufyan ibn Harb accepted Islam at Marr al-Zahran, in Muslim territory, before the conquest of Makkah. Marr al-Zahran was inhabited by the Khuza‘ah tribe, among whom there were many Muslims. Abu Sufyan then returned to Makkah. His wife, Hind bint Utbah, was still a non-Muslim. She seized Abu Sufyan by the beard and said, “Kill this misguided old man.” Hind accepted Islam long after Abu Sufyan had accepted Islam. She was living in the land of unbelief, while Abu Sufyan was a Muslim. Hind accepted Islam after her waiting period, and their marriage remained valid. In fact, her waiting period had not ended by the time she accepted Islam. The case of Hakim ibn Hizam was similar. The wife of Ikrimah, the son of Abu Jahl, accepted Islam in Makkah, and Makkah became Muslim territory. When Ikrimah saw that the Messenger, peace and blessings be upon him, was ruling Makkah, he fled to Yemen, which was still the land of war, meaning non-Muslim territory. Safwan intended to go to Yemen, the land of war, but instead returned to Makkah, the land of Islam. He took part in the Battle of Hunayn while still an unbeliever, then accepted Islam, and his marriage to his wife remained intact because her waiting period had not ended. Scholars who recorded the history of the battles during the time of the Messenger, peace and blessings be upon him, mention that a woman from the Ansar was married to a man from Makkah. She accepted Islam and migrated to Makkah. Some time later, while she was still in her waiting period, her husband came to Makkah, and their marriage remained valid.
The author of Rawdat al-Nadiyyah said: A wife’s acceptance of Islam while her husband remains in unbelief is not equivalent to divorce. If it were, their reunion after the waiting period would not be possible without the wife’s consent and renewal of the marriage contract. In short, after accepting Islam, an adult Muslim woman may marry whomever she wishes. If her former husband accepts Islam after she has married, she may not take him back. If she has not married, however, she remains under the contract of her first husband, whether or not the contract is renewed and consent is given. This is the ruling based on evidence, whether or not it accords with the opinions of the scholars. The same ruling applies if one of the husband and wife becomes an apostate. If the apostate returns to Islam, the ruling applicable to that person is the same as that applicable to someone who was an unbeliever and then accepted Islam.
Chapter Ten: Divorce
Definition
The word talaq derives from itlaq. Itlaq means to release, set free, and cast off. It is used in the sense of releasing and setting a prisoner free. In Islamic legal terminology, the termination of the marital relationship is called talaq, or divorce.
Divorce is disliked
One of the objectives that Islam takes great care to achieve is preserving the marital bond so that it remains lasting, stable, and unbroken. Marriage is contracted to endure throughout life, enabling the husband and wife to make their home a place of refuge for themselves, beneath whose shelter they may live together in peace and properly raise their children. For this reason, the relationship between husband and wife is one of the holiest and strongest of relationships. The fact that Almighty Allah calls the covenant between husband and wife a “solemn covenant” is the clearest proof of the sanctity of this relationship. Allah says in verse 21 of Surah al-Nisa:
وَأَخَذْنَ مِنْكُمْ مِيثَاقًا غَلِيظًا
“They have taken from you a solemn covenant.”
Since the relationship between husband and wife has been described as strong and unbreakable in this way, it should not be disrupted or dishonored. Anything that weakens this relationship or diminishes its dignity is detestable in Islam, because it harms the purpose of marriage and the interests of both spouses. Ibn Umar, may Allah be pleased with him, said: The Messenger of Allah, peace and blessings be upon him, said: “Of the lawful things, divorce is the most detested by Allah.” —Abu Dawud and al-Hakim.
The Messenger of Allah, peace and blessings be upon him, also said: “Whoever turns a woman against her husband is not one of us.” —Abu Dawud and al-Nasa’i.
This makes clear that the marital bond is so sacred in Islam that anyone who tries to destroy it is so dishonored in the sight of Islam that he is not even worthy of claiming affiliation with Islam. Some women try to cultivate intimacy with another woman’s husband and seek to take her place as his wife. Islam has strictly prohibited this. Abu Hurayrah, may Allah be pleased with him, reported that the Messenger of Allah, peace and blessings be upon him, said: “It is not lawful for a woman to ask for the divorce of her sister so that she may take her place and become his wife. Her allotted husband is already destined for her.” In other words, she may marry any other man. It is not lawful for her to make another woman husbandless without justification. Moreover, a woman who asks her husband for divorce without cause is forbidden even the scent of Paradise. Thawban, may Allah be pleased with him, reported that the Messenger of Allah, peace and blessings be upon him, said: “The scent of Paradise is forbidden to a woman who asks her husband for divorce without cause.” —Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah.
The ruling on divorce in Islamic law
Various opinions are found among the jurists concerning the ruling on divorce. The most accurate opinion, however, is that of the Hanafis and Hanbalis: “It is unlawful without a need.” Their evidence for this position is the hadith of the Messenger of Allah, peace and blessings be upon him: “The curse is upon the one who frequently divorces or seeks divorce and the one who repeatedly changes marital partners.” Moreover, divorce means showing ingratitude for one of Allah’s blessings. Marriage is a blessing from Allah, and showing ingratitude for Allah’s blessings is forbidden. Therefore, divorce is not lawful without an unavoidable need. Matters that fall within this unavoidable need, on the basis of which divorce becomes lawful, include the husband’s developing doubts about his wife’s character and the disappearance of affection and attraction in the husband toward his wife or in the wife toward her husband. Changes in people’s hearts are entirely in Allah’s hands. If no need for divorce arises at all, it is merely ingratitude for Allah’s blessing and unethical conduct toward one’s life partner. It therefore becomes an undesirable and prohibited act.
The Hanbali school has an excellent classification of divorce. Its brief summary is as follows: divorce may be obligatory, forbidden, permissible, or recommended.
Obligatory divorce:
When the arbitrators from both sides fail to reconcile the dispute between husband and wife, decide in favor of divorce, and believe that divorce is the only way to resolve the conflict, divorce becomes obligatory. Likewise, when a person who has made ila waits four months and then divorces because he finds no alternative to divorce. Allah says:
لِلَّذِينَ يُؤْلُونَ مِنْ نِسَائِهِمْ تَرَبُّصُ أَرْبَعَةِ أَشْمُرِج فَإِنْ فَاءُوْ فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ وَإِنْ عَزَمُوا الطَّلَاقَ فَإِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ
Meaning: Those who declare abstinence from their wives shall wait four months. Then, if they return to normal relations, Allah is All-Forgiving, Most Merciful. But if they resolve to divorce, then Allah is All-Hearing, All-Knowing.” (Al-Baqarah: 125–126)
Forbidden divorce:
Divorce without need is forbidden divorce. It is forbidden because it harms both husband and wife and damages their interests without cause. It is therefore forbidden, just as destroying property is forbidden. The Messenger of Allah, peace and blessings be upon him, said: “One must neither harm oneself nor harm another.” According to another report, this type of divorce is disliked, because the Messenger of Allah, peace and blessings be upon him, said: “The most detested of lawful things to Allah is divorce.” (Abu Dawud) It is detested because there is no need for it, even though the Messenger of Allah, peace and blessings be upon him, described it as lawful. Furthermore, since it ends a marriage that is a source of many benefits, it is disliked.
Permissible divorce is divorce granted on the basis of a genuine need because of the wife’s bad conduct, harmful behavior, or failure to fulfill the intended purpose of marriage.
Recommended divorce is divorce granted when the wife is negligent in observing Allah’s commands, such as prayer, while it is impossible to compel her to do so, or when she is immoral. Imam Ahmad said: An immoral wife should not be retained, because keeping her causes religious harm to the husband. Moreover, there is no guarantee that she will not conceive another man’s child and attribute it to her husband, or establish an illicit relationship with another man and bring disgrace upon her husband’s household. In such a case, there is no harm in pressuring her to leave by relinquishing her claim to her dower, because Allah says:
وَ لَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضٍ مَا أَتَيْتُمُوهُنَّ إِلَّا أَنْ يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ
Meaning: Do not pressure them in order to take back part of what you have given them, unless they commit flagrant obscenity.” (Al-Nisa’: verse 19)
Ibn Qudamah said that divorce may be considered obligatory in these two cases. He also said: In cases of mutual aversion, and when the wife is prepared to seek khul‘ in order to protect herself from harm, divorce is recommended.
The rationale for divorce
Ibn Sina said in his Kitab al-Shifa: There should be some means by which husband and wife can separate, and it is wrong to block every avenue to it. Completely closing all means of ending a marriage may be harmful and dangerous for several reasons. First, some people are naturally disposed in a way that prevents them from adapting to the temperaments of others and becoming tolerant and affectionate. The more one tries to force two such people to remain together, the more conflict, bitterness, and harm will increase. Second, circumstances may cause a husband or wife to be paired with someone who is not their equal, is unpleasant to associate with, or has such an irritating disposition that the other cannot accept them. As a result of such an incompatible marriage, people may turn toward adultery or illicit relationships outside marriage. Sexual desire and impulse are natural matters that can draw a person toward various wrongs and crimes. At the very least, such a couple may be unable to cooperate in having children, although they might have been able to do so if given the opportunity to change partners. Therefore, in cases of unavoidable need, it is essential that there be an opportunity for separation. Nevertheless, the person concerned should be strict in this matter.
Divorce in Jewish society
The procedure for divorce established and recognized in Jewish law is that divorce is lawful even without an excuse. For example, a man may divorce his wife in order to marry a more beautiful woman. Divorce without an excuse, however, is not preferred. In their society, such excuses are of two kinds: 1. Physical defects, such as blindness, deafness, inability to speak, lameness, infertility, and so forth. 2. Defects of character and conduct, such as arrogance and rudeness, excessive talkativeness, untidiness, disobedience, rashness, stubbornness, wastefulness and extravagance, gluttony, greed, indulgence in food, and pride. The greatest excuse for them is adultery. Even the spread of a rumor of adultery is sufficient, whether or not it is proven. However, Jesus, peace be upon him, recognized none of the aforementioned excuses except adultery. A wife, on the other hand, is never permitted to ask her husband for divorce, even if her adultery is proven.
Divorce in Christianity
The Christianity followed by the Christian nations of the West is divided into three denominations: 1. Catholicism, 2. Orthodoxy, 3. Protestantism.
Among them, divorce is completely prohibited for Catholics. No matter how serious the reason, dissolving the marital bond is never lawful. Even betrayal of the marital relationship is not considered an acceptable excuse for divorce. In cases of betrayal, according to the husband and wife’s doctrine, only physical separation can make divorce valid. Yet, even after this physical separation, the marital relationship is considered to continue. Thus neither spouse may marry anyone else during this separation, because that would count as polygamy, which Christianity does not permit under any circumstances. Catholics rely in this matter on what is quoted in the Mark Bible as the words of Jesus, peace be upon him. He said: “Husband and wife become one body. Therefore, after marriage they are no longer two, but become one body. For what Allah has joined together, no one can separate.” The other two Christian denominations, Orthodox and Protestant, permit divorce in certain special circumstances. One important circumstance is betrayal of the marital bond, meaning an extramarital relationship. However, both denominations prohibit either spouse from marrying again afterward. As evidence for permitting divorce because of betrayal of the marital relationship, they cite these words of Jesus, peace be upon him, quoted in the Matthew Bible: “Whoever divorces his wife for any reason other than adultery compels her to commit adultery.” All Christian denominations prohibit remarriage for divorced husbands and wives, based on these words of Jesus, peace be upon him, reported in the Mark Bible: “Whoever divorces his wife and marries another woman commits adultery with her. And if a woman divorces her husband and marries another man, she commits adultery with him.”
Divorce in the Age of Ignorance
Aishah, may Allah be pleased with her, said: Before the ruling on divorce was revealed, a husband could divorce his wife as many times as he wished. Then, during her waiting period, he would revoke the divorce and reinstate her as his wife. He could do this even after divorcing her one hundred times or more. Once, a certain husband said to his wife: “By Allah, I will never divorce you in such a way that you become separated from me, nor will I ever allow you to remain in my home after separation.” She asked, “How could that be?” He replied, “I will divorce you, and whenever your waiting period is about to end, I will revoke the divorce.” After hearing this, the wife went to Aishah, may Allah be pleased with her, and told her what her husband had said. Aishah remained silent. When the Messenger of Allah, peace and blessings be upon him, arrived, she informed him. The Messenger, peace and blessings be upon him, remained silent. Then this verse was revealed:
الطَّلَاقُ مَرْتَانِ فَإِمْسَاكَ بِمَعْرُوفٍ أَوْ تَسْرِيعُ بِإِحْسَانٍ
Meaning: Divorce is only twice. Then either retain the marriage honorably or release her with kindness.” (Al-Baqarah: verse 229)
Aishah, may Allah be pleased with her, said: Thereafter, people began issuing divorce anew for the future, regardless of whether they had divorced previously. —Al-Tirmidhi.
Divorce is the sole right of the husband
Islam has placed divorce exclusively within the sphere of the man’s rights. Since he spends his own wealth to establish the marital relationship, it is natural that he would be more interested in preserving it. Moreover, he has not spent money only on this marriage; he also knows that if he divorces and remarries, he will have to spend a similar or even greater amount. Therefore, no one understands better than the husband that preserving the first marriage is more economical. He also knows that he must pay his divorced wife her remaining dower, certain gifts on the occasion of divorce, and maintenance during her waiting period. Another reason for giving the exclusive right of divorce to the husband is that, because of his intelligence and balanced nature, he is generally more patient even after experiencing much undesirable behavior from his wife. Thus, he does not hasten toward divorce merely because of a momentary anger or because he becomes intolerant and impatient over one instance of his wife’s misconduct or injustice. In contrast, a wife becomes angry and loses control more quickly than her husband and is generally less patient than he is. Furthermore, the husband must bear the consequences and financial burden of divorce, whereas if the wife were given the power to divorce, she would not have to bear them. Therefore, the wife would be more capable of hastily ending the marital relationship for the slightest or entirely mistaken reason. Evidence of the validity of this final argument is that when the English people made seeking divorce an equal right of husbands and wives, the number of divorces in their society increased so greatly that it became many times higher than among Muslims.
Whose divorce is valid?
The scholars agree that if the husband is of sound mind, an adult, and acting of his own free will, it is permissible for him to divorce, and his divorce is valid. But if he is insane, a minor, or acting under someone else’s coercion, the divorce he pronounces is not valid. Divorce is an act whose consequences affect the lives of the husband and wife. Therefore, the person pronouncing divorce must possess full legal capacity so that all his actions in this matter are sound and lawful. This full capacity depends only on soundness of mind, adulthood, and free will. Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrated from Ali that the Messenger of Allah, peace and blessings be upon him, said: “Three persons are exempted from responsibility and accountability: the sleeping person until he awakens, the minor boy until he reaches adulthood, and the insane person until he regains soundness of mind.” Al-Bukhari and al-Tirmidhi narrated from Abu Hurayrah that the Messenger of Allah, peace and blessings be upon him, said: “Everyone’s divorce is valid except that of one whose mind is not sound.” The scholars have differed regarding the following rulings, which I will present briefly: 1. Divorce pronounced under coercion; 2. divorce pronounced by a drunk person; 3. divorce pronounced in jest; 4. divorce pronounced in a state of bewildering anger; 5. divorce pronounced carelessly; 6. divorce pronounced by an unconscious person.
Divorce under coercion
A person subjected to coercion has neither the power to make an independent decision nor the power to act independently. When both these faculties are removed, the person concerned is no longer accountable for the matter, and the coerced person is not held responsible for his actions. His free will has been taken away. In reality, he merely carries out the will and decision of the coercer. Thus, one who is forced to utter words of disbelief does not become an unbeliever by uttering those words. Allah says in verse 106 of Surah al-Nahl:
إِلَّا مَنْ أُكْرِهَ وَقَلْبُهُ مُطْمَئِنُّ بِالْإِيْمَانِ
“Except one who is compelled while his heart is secure in faith, he does not become an unbeliever.” Likewise, one who is forced to become a Muslim does not become a Muslim, and the divorce of one who is forced to divorce is not valid. Ibn Majah, Ibn Hibban, al-Daraqutni, al-Tabarani, and al-Hakim narrated that the Messenger of Allah, peace and blessings be upon him, said: “My community has been excused for all mistakes and oversights (things abandoned inadvertently and actions done unwillingly), and for what they are forced to do.” Imam Malik, al-Shafi’i, Ahmad, Dawud, Umar ibn al-Khattab, Abdullah ibn Umar, Ali ibn Abi Talib, and Ibn Abbas held a similar view. Imam Abu Hanifah and his disciples said that divorce is valid even when pronounced under coercion. They have no evidence supporting this view. Moreover, the majority of the Companions held an opposing view.
The divorce of a drunk person
According to the majority of jurists, the divorce of a drunk person is valid, because the impairment of his reason is self-induced. Another group of jurists say that his divorce is meaningless and has no validity, because he and an insane person are in the same category: both lack reason. Yet sound reason is the basis for the application of the responsibilities imposed by Islamic law. Furthermore, Allah says in verse 43 of Surah al-Nisa:
يَأَيُّهَا الَّذِينَ آمَنُوا لَا تَقْرَبُوا الصَّلوةَ وَأَنْتُمْ سُكْرَى حَتَّى تَعْلَمُوا مَا تَقُولُونَ
Meaning: “O believers, do not approach prayer while you are intoxicated until you understand what you are saying.”
In this verse, Allah describes the speech of a drunk person as meaningless, because he himself does not know what he is saying. It is narrated from Uthman that he did not count the divorce of a drunk person as valid, and some report that no Companion opposed him in this matter. Yahya ibn Sa’id, Humayd ibn Abd al-Rahman, Rabi’ah, al-Layth, Abdullah ibn al-Husayn, Ishaq ibn Rahwayh, Abu Thawr, al-Shafi’i, al-Muzani, Ahmad, the Zahiri school, al-Tahawi, and al-Karkhi held the same view. Al-Shawkani said that since a drunk person lacks understanding, his divorce is invalid, because the basis upon which a ruling becomes effective—namely, reason—is absent and inactive here. However, since Islamic law has punished him, we have no right to exempt him according to our own view. We say that his divorce will be valid as a punishment. Thus, two punishments will apply to him: one for drinking wine, and the other for the divorce pronounced in that state.
The divorce of an angry person
A person who becomes so bewildered by anger that he does not think before speaking and does not know what is coming from his mouth—his divorce is not valid, because he is deprived of free will. Ahmad, Abu Dawud, Ibn Majah, and al-Hakim narrated from A’ishah that the Messenger of Allah, peace and blessings be upon him, said: “There is no divorce in a state of bewilderment, nor is a slave freed in such a state.” This state of bewilderment has been explained as anger, being subjected to coercion, or insanity. Ibn Taymiyyah echoed this view in Zad al-Ma’ad, saying that a state of bewilderment is one in which a person has no purpose behind what he says and is unaware of it, as though his intention, understanding, and will have become completely inactive. He further said that the divorce of one subjected to coercion and that of an insane person are likewise excluded. If a person’s reason becomes inactive because of intoxication or anger, his will has no authority, and he does not know what he is saying, then the divorce he pronounces in that state is likewise void and invalid. Anger is of three types:
1. Anger that disables and paralyzes reason, causing a person to become so bewildered that he himself does not know what he is saying. The divorce of such a person is unanimously invalid.
2. Anger in its initial stage, which does not deprive a person of the ability to speak thoughtfully. The divorce of such a person is valid.
3. Anger that reaches a more intense state but does not completely disable reason, although it disrupts a person’s intention and resolve. Consequently, he later regrets what he does in that state. This state is subject to consideration. There is strong grounds for holding that divorce pronounced in this state is not valid.
Divorce pronounced in jest
According to the majority of scholars, divorce pronounced jokingly or in jest is valid, just as a marriage contracted in jest is valid. Ahmad, Abu Dawud, Ibn Majah, al-Tirmidhi, and al-Hakim narrated from Abu Hurayrah that the Messenger of Allah, peace and blessings be upon him, said: “There are three matters which are serious whether done seriously or jokingly: marriage, divorce, and taking back a divorce.”
Some scholars hold that divorce pronounced in jest is not valid. Imam al-Baqir, al-Sadiq, and al-Nasir belong to this group. One view attributed to Ahmad and Malik is also like this. These scholars made expressing consent or intention through the words a condition for divorce to be valid. Therefore, where intention and purpose are absent, an oath and resolve are deemed meaningless. Allah says:
وَإِنْ عَزَمُوا الطَّلَاقَ، فَإِنَّ اللَّهَ سَمِيعٌ عَلِيمٌ
“If they resolve to divorce, then surely Allah is All-Hearing, All-Knowing.” (Al-Baqarah: 227)
A firm intention to do something is called resolve. It is manifested through an unwavering intention either to do or not to do something. The Messenger of Allah, peace and blessings be upon him, said that actions depend upon intentions. In fact, divorce is an act that depends upon intention, will, and resolve. But a person who jokes has no intention or resolve. Al-Bukhari narrated from Ibn Abbas: “There must be an intention behind divorce.” That is, divorce is valid only when the person pronouncing it intends to divorce. According to Ibn Hajar, divorcing is improper except in the case of a disobedient wife. Regarding a person who divorces carelessly, that is, unintentionally—he did not intend to divorce but let the word slip from his mouth—the Hanafi jurists hold that the divorce is legally valid. Religiously, however, the divorce is not valid between him and Allah, and his wife remains lawful for him.
Divorce pronounced carelessly and by mistake
The consequence of divorce pronounced carelessly and by mistake is like that of divorce pronounced jokingly and unintentionally. The difference, however, is that divorce pronounced jokingly is valid both legally and religiously, whereas divorce pronounced by mistake is valid only legally. Divorce is not a matter for joking or frivolous play.
The divorce of an unconscious person
When a person suffers an injury that robs him of his reason and destroys his ability to think, so that he himself does not know what he is saying, his divorce is not valid. The same applies to the divorce of a person whose reason has been impaired by insanity, idiocy, a sudden accident, illness, or old age.
Those upon whom divorce is valid
Divorce is not valid if the wife is not eligible for divorce. A wife is eligible for divorce when:
1. A genuine marital relationship exists between her and her husband,
2. She has been divorced by a revocable divorce and is observing her waiting period, or she is within her waiting period after a minor irrevocable divorce. In both cases, the marital relationship legally continues until the waiting period ends.
3. During the waiting period following a separation that is regarded as divorce, the wife remains eligible for divorce. An example of such separation is when the wife accepts Islam but the husband does not, or when the period of ila expires. According to the Hanafis, the separation occurring in either of these two situations is considered a divorce.
4. She is observing the waiting period resulting from a separation described as the dissolution of marriage. This does not actually annul the contract, such as separation caused by the wife becoming an apostate, that is, becoming an unbeliever. In this case, the marriage ends because of a circumstance that arose after the marriage had been validly contracted.
Those upon whom divorce is not valid
We have stated that divorce is not valid against a wife who is not eligible for divorce. Thus, when she is not eligible for divorce, it is not valid against her. This includes a wife observing the waiting period after the marriage has ended because there was no compatibility, a dower lower than the proper dower was stipulated, the marriage was rejected upon reaching adulthood, or it was established that the contract was invalid because one of the conditions for a valid marriage had not been fulfilled. In these cases, the contract was void from the outset, so she has no legal status during the waiting period. If someone says to such a woman, “I divorce you,” it becomes a meaningless statement and produces no effect. Likewise, a wife divorced before intercourse or valid seclusion cannot be divorced again, because the marital relationship between them has ended and, upon receiving the divorce, she has become completely unrelated to him. Therefore, she is no longer eligible for divorce: she is neither his wife nor observing a waiting period. If someone pronounces divorce three times against a wife with whom he has not had intercourse, only one irrevocable divorce will take effect, because the marital relationship still exists. The second and third divorces are meaningless and ineffective, because when they were pronounced she was neither his wife nor observing a waiting period. A woman with whom intercourse has not occurred has no waiting period—this is the view of the Hanafis and Shafi’is. Similarly, divorce is not valid against a woman with whom there has never been a marital relationship and whose waiting period has ended, because as soon as the waiting period ends she becomes an unrelated woman. A woman who has received three divorces is also not eligible for further divorce during her waiting period, because she has received a major irrevocable divorce. Any divorce pronounced against her is completely ineffective.
Divorce before marriage
Divorce is not valid against an unknown woman if he marries her, nor is such a divorce valid even if he pronounces it. For example, if someone says, “If I marry such-and-such a woman, she is divorced.” Al-Tirmidhi narrated that the Messenger of Allah, peace and blessings be upon him, said: “The son of Adam has no authority over what he does not own; he cannot free a slave whom he does not own, and he cannot divorce a woman whose husband he is not.” This is the view of Imam al-Shafi’i. Imam Abu Hanifah said regarding conditional divorce that when the condition is fulfilled, the divorce becomes valid, whether the statement refers generally to any woman or specifically to a particular woman. Imam Malik and his disciples said that if the statement refers generally to all women, the divorce is not valid, but if it refers to a specific woman, it is valid. An example of the general wording is: “Whenever I marry any woman, she is divorced.” An example of the specific wording is: “If I marry such-and-such a woman, she is divorced.”
By what means does divorce become valid?
Divorce becomes valid through any means that indicates the termination of the marital relationship, whether by spoken words, by writing a letter to the wife, by a mute person’s gesture, or by sending a messenger.
Divorce by words: The wording may be explicit or allusive. Explicit wording is wording whose meaning is understood as soon as it is spoken, such as, “I divorce you,” or, “You are divorced.” Al-Shafi’i said that the explicit terms for divorce are three: divorce, separation, and release. All three are mentioned in the Qur’an. Some followers of the Zahiri school said that divorce is not valid except through these three words, because only these three are mentioned in Islamic law. Divorce is an act of worship, and its condition is the use of the proper wording. Therefore, it is necessary to restrict oneself to the words prescribed in Islamic law. (Bidayat al-Mujtahid, vol. 2, p. 70)
Ambiguous or allusive wording: This is wording that may indicate divorce but may also indicate another type of separation. For example, if he says, “You are ba’in,” meaning separated, this may mean separated from the marriage or separated from evil. Likewise, if he says, “Your fate is in your hands,” it may mean that she may assume responsibility for preserving her chastity. Similarly, if someone says, “You are forbidden to me,” this may have two meanings: first, “Intercourse with you is forbidden to me”; second, “Hurting you is forbidden to me.”
For divorce to become valid through such ambiguous and allusive words, the intention of the person pronouncing divorce must be established. If he says, “I did not mean divorce by this,” then divorce does not take effect.
Explicit wording: Divorce becomes valid through explicit wording without expressing an intention, because its meaning does not require interpretation. However, even for divorce to become valid through such explicit words, the statement must refer to or address the wife, such as, “I divorce my wife,” or, “I divorce you.”
Even after pronouncing divorce in explicit words, if the speaker says, “I did not mean divorce, and it was not my intention to divorce; I meant something else,” his statement will not be accepted legally and his divorce will be valid. But if one who has uttered ambiguous and allusive words says, “I did not mean divorce; rather, I intended something else,” his statement will be accepted legally and his divorce will not be valid. The words he uttered may mean divorce or something else, and his intention determines what he meant. This is the view of the Maliki and Shafi’i schools. Al-Bukhari narrated from A’ishah:
When the daughter of al-Jawn was brought into the bridal chamber of the Messenger of Allah, peace and blessings be upon him, and he approached her, she exclaimed, “I seek refuge in Allah from you.” The Messenger of Allah, peace and blessings be upon him, immediately said to her, “You have sought refuge with a Great Being. Go to your father’s home.”
It is narrated in al-Bukhari and Muslim that when Ka’b ibn Malik, who had stayed behind and not participated in the Battle of Tabuk, was told that the Messenger of Allah, peace and blessings be upon him, had ordered him to separate from his wife, Ka’b said, “Should I divorce her, or what should I do?” He was told, “Just separate yourself from her. Do not go near her.” Thereafter, Ka’b said to his wife, “Go to your father’s home.”
These two hadiths show that the expression “separation from the wife” results in divorce only when divorce is intended by it. Otherwise, divorce does not take effect. This rule is still followed today. Section 4 of Law No. 25 of Egypt of 1929 states: “Allusive expressions of divorce: These are expressions that may indicate divorce or something else. Divorce does not take effect through them without intention.”
According to the Hanafi school, divorce through allusive expressions becomes effective on the basis of intention and also on the basis of circumstances. However, this view of the Hanafi school has not been accepted by the law, and divorce based solely on circumstances is invalid in the eyes of the law. Rather, when the person pronouncing divorce uses an allusive and ambiguous expression, intending by it that he meant divorce is a condition for the divorce to be valid.
Does declaring one’s wife forbidden result in divorce?
When a husband declares his wife forbidden to him, it must be determined whether he truly means to make her forbidden, or whether, without intending the literal meaning of the words, he means to send her away—that is, to divorce her. If he genuinely means to make her forbidden, divorce does not take effect. Al-Tirmidhi narrated from A’ishah: The Messenger of Allah, peace and blessings be upon him, performed ila’ with his wives, declared the lawful unlawful, and offered expiation for the oath.
It is narrated in Sahih Muslim from Ibn Abbas: “When a husband declares his wife forbidden to him, it amounts to an oath, and if he breaks it, he must offer expiation.” Then he (Ibn Abbas) said:
لَقَدْ كَانَ لَكُمْ فِي رَسُولِ اللهِ أَسْوَةٌ حَسَ
“You have an excellent example in the Messenger of Allah.” Al-Nasa’i narrated from Ibn Abbas that a man came to him and said, “I have declared my wife forbidden to me.” Ibn Abbas said, “You have lied. She is not forbidden to you.” He then recited this verse (verse 1 of Surah al-Tahrim):
يَأَيُّهَا النَّبِيُّ لِمَ تُحَرِّمُ مَا أَحَلَّ اللهُ لَكَ ، تَبْتَغِي مَرْضَاتِ أَزْوَاجِكَ ، وَاللَّهُ غَفُورٌ
رَّحِيمٌ قَدْ فَرَضَ اللَّهُ لَكُمْ تَحِلَّةَ أَيْمَانِكُمْ وَاللَّهُ مَوْلَكُمْ ، وَهُوَ الْعَلِيمُ الْحَكِيمُ
Meaning: “O Prophet, why do you prohibit what Allah has made lawful for you, seeking to please your wives? Allah is Most Forgiving, Most Merciful. Allah has prescribed for you a way to release yourselves from your oaths.”
(This verse clearly shows that declaring one’s wife unlawful or forbidden is an oath, and breaking it requires expiation.) Then Ibn Abbas said to him: “The most severe expiation has been prescribed for you: freeing a slave.”
But if he means divorce, divorce takes effect, because the word “forbidden,” like all other allusive expressions, is an allusive expression.
Divorce in writing
Divorce takes effect even when pronounced in writing, although the person pronouncing it is capable of speech. A husband may divorce his wife orally, or send her a written divorce document. The jurists have stipulated, however, that the writing must be explicit, addressed to the wife, and delivered to her address. In other words, he must write: “O so-and-so, you are divorced.” If he writes this on a piece of paper but does not send it to her address, divorce does not take effect without intention.
The mute person’s gesture
For a mute person, a gesture is a means of expressing what is in the mind. Therefore, when his gesture indicates the termination of the marital relationship, it takes the place of spoken words in effecting divorce. The jurists have stipulated that, for divorce to take effect through a mute person’s gesture, he must be unable to write; if he can write, a gesture is not sufficient. Written expression conveys what is in the mind more clearly. Thus, a gesture is not accepted unless he is unable to write.
Sending a messenger
It is permissible to send notice of divorce through a messenger to inform an absent wife that she has been divorced. In such a situation, the messenger acts as the representative of the person pronouncing divorce and carries out the divorce on his behalf.
Having witnesses to divorce
According to most jurists of earlier and later times, divorce is effective even without witnesses, because divorce is the husband’s right. He needs no witness to exercise this right. In fact, no proof has been found from the Messenger (peace and blessings be upon him) or the Companions establishing the necessity of witnesses. The following two verses prove that divorce is the husband’s exclusive right, with no one else sharing in it:
يا أيها الذين امنوا إذا لكحتُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ .
إذا طلقتم النساء فبلغن أجلهن فأمسكوهن بمعروف أو فارقوهن بمعروف
“O believers, when you marry believing women and then divorce them.” And: “When you divorce your wives and they reach the end of their waiting period, then either retain them honorably or release them honorably.” Ibn al-Qayyim said: This proves that Allah has given the authority to divorce to the husband, since the authority to retain is also his. Ibn Abbas said that a man came to the Messenger of Allah and said, “O Messenger of Allah, my master married me to his slave-girl, and now he wishes to separate me from my wife.” Upon hearing this, the Messenger of Allah ascended the pulpit and said: “O people, what is the matter with some of you? He marries his slave-girl to his slave, then wishes to separate them. Divorce is exclusively the right of the one who contracted the marriage.” —Ibn Majah.
However, the Imami Shiites hold a different view on this matter. They say that the presence of witnesses is a condition for a valid divorce. They cite the following verse from Surat al-Talaq as evidence:
وَأَشْهِدُوا ذَوِي عَدْلٍ مِّنكُمْ وَأَقِيمُوا الشَّهَادَةَ لِلَّهِ
“Call two just men from among you as witnesses and establish the testimony for Allah.”
Those who consider witnesses necessary in divorce
Among those who consider witnesses essential or obligatory in divorce and regard them as a condition for its validity are the Commander of the Believers, Ali ibn Abi Talib; Imran ibn Husayn; Imam Baqir; Imam Ja‘far al-Sadiq; and the Imams of the Ahl al-Bayt descended from these two latter Imams. Also included are Ata, Ibn Jurayj, and Ibn Sirin, may Allah have mercy on them. In Jawahir al-Kalam, it is narrated from Ali that when a man asked him about divorce, he asked him, “Did you appoint two just men as witnesses?” He replied, “No.” Ali then said, “Go away; your divorce is not valid.” Abu Dawud narrated from Imran ibn Husayn that he was asked about a man who divorced his wife whenever he wished, then had intercourse with her, without having anyone witness either the divorce or its revocation. He said to that man, “You have divorced contrary to the Sunnah of the Messenger, and you have revoked the divorce contrary to the Sunnah. Have witnesses for the divorce and its revocation, and do not repeat what you have done.”
In the discipline of usul al-fiqh, the principle is mentioned that when a Companion says, “This is Sunnah,” it must be understood that he said it only after hearing it reliably and directly from the Messenger. For a Companion’s statement is plainly connected with the Sunnah of the Messenger, which must be followed. Moreover, the Companion’s purpose is to explain a ruling of the Sharia, not language, custom, or ordinary practice. Hafiz al-Suyuti, in his tafsir work al-Durr al-Manthur, while explaining the following verse:٨٨-
فَإِذَا بَلَغْنَ أَجَلَهُنَّ فَأَمْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهِدُوا ذَوِي
عَدْلٍ مِّنكُمْ
“When the women complete their waiting period, then either retain them honorably or release them honorably, and appoint two just men from among you as witnesses.” He narrated from Ibn Sirin that a man told Imran ibn Husayn that someone had divorced without appointing witnesses. He replied, “He has done a very bad thing. His divorce is an innovation, and his revocation is contrary to the Sunnah. Let him appoint witnesses for the divorce and its revocation and seek Allah’s forgiveness.” Thus, the only clear reason Imran ibn Husayn disliked divorce and its revocation without witnesses, warned against it, called it sinful, and ordered repentance was that he considered witnesses essential. In the book al-Wasa’il, it is stated that Imam Baqir said: “The divorce about which Allah gave guidance in His Book and whose procedure the Messenger taught is this: when the wife menstruates and then becomes pure, the husband should refrain from intercourse with her. Then, while she is pure and not impure because of intercourse, he should divorce her in the presence of two just witnesses. After this divorce, the husband has the greater right to revoke it during the three menstrual cycles and intervening periods of purity.”
Any divorce given without following this procedure is invalid; it is not a divorce. Ja‘far al-Sadiq said, “A divorce given without witnesses is no divorce at all.” Sayyid Murtada says in his book al-Intisar that the Imami Shiites’ position—that the testimony of two just men is a condition for divorce, and that divorce does not occur when this condition is absent—is based on Allah’s statement: “And appoint two just men as witnesses.” This is plainly Allah’s command to appoint witnesses. According to the practice of the Sharia, an unequivocal command indicates an obligatory duty. Once an obligatory duty has been established by an unequivocal command, treating it as merely recommended without evidence amounts to violating the well-known method of the Sharia. In al-Durr al-Manthur, al-Suyuti quotes Ata as saying: “Witnesses are essential for marriage, divorce, and the revocation of divorce.”
However, Ibn Kathir quoted Ata in his tafsir as saying that marriage, divorce, and revocation of divorce without witnesses are not permissible except in cases of excuse. From the citations we have mentioned, it has become clear that the view that witnesses are essential is not held only by the Shiites; it was also held by the Sunni Imams Ata, Ibn Jurayj, and Ibn Sirin.
Categories of Divorce
In light of the words or expressions used to effect divorce, divorce is divided into three categories: immediate divorce, conditional divorce, and divorce assigned to take effect in the future. Immediate divorce is divorce that does not depend on any condition or future time; rather, the divorcing party intends to effect it immediately. For example, saying to the wife, “You are divorced,” or “I divorce you.” The ruling is that it takes effect as soon as it is pronounced by the divorcing party. Conditional divorce is when the husband makes divorce dependent on something, such as saying to his wife, “If you go to such-and-such a place, divorce will take effect against you.” Three conditions must be fulfilled for conditional divorce to take effect:
1. Divorce must be made dependent on something that does not currently exist but may come into existence later. Conversely, if it is made dependent on something that already exists when the divorce is pronounced, it is immediate divorce, even if expressed in the form of a condition. For example, if the sun has already risen and he says, “When the sun rises, divorce will take effect against you.” But if divorce is made conditional on an impossible thing, such as, “If a camel enters through a hole in the sun, divorce will take effect against you,” then the statement containing the divorce is entirely futile.
2. At the time the divorce is pronounced, the wife must be eligible for divorce, meaning that she must still be bound by the marriage.
3. At the time the condition of a conditional divorce is fulfilled, the wife must likewise still be eligible for divorce. Conditional divorce is of two types. 1. Divorce intended to encourage the wife to do something or refrain from doing it. For example, saying to her, “If you leave the house, divorce will take effect against you.” Here she is being prohibited from leaving the house in order to make the divorce operative. This is akin to taking an oath concerning divorce.
2. Divorce intended to take effect once the condition is fulfilled. For example, the husband says to his wife, “If you release me from the remainder of the dower owed to you, divorce will take effect against you.”
According to most scholars, both types of divorce take effect. Ibn Hazm, however, held that divorce does not take effect. Ibn al-Qayyim and Ibn Taymiyyah said: If conditional divorce carries the meaning of an oath, then the divorce does not take effect. When the matter about which the oath was sworn occurs, expiation for the oath becomes obligatory. Expiation consists of feeding or clothing ten needy people, or fasting for three days. If it is a genuine condition without the meaning of an oath, divorce takes effect as soon as the condition is fulfilled.
Ibn Taymiyyah said that the expressions people commonly use in giving divorce are of three types. 1. Immediate expressions without an oath, such as, “I divorce you.” Divorce takes effect by this statement. It contains no oath, so by consensus there is no expiation. 2. Oath-like expressions, such as, “I am compelled to divorce; I will certainly do it.” 3. Conditional expressions, such as, “If my wife does such-and-such, divorce will take effect against her.” If the husband intends an oath by this and dislikes divorcing her, it is an oath and is treated like an oath involving divorce. All jurists agree on this. If he intends a condition, divorce takes effect when the condition is fulfilled, such as, “If you give me one thousand taka, divorce will take effect against you,” or, “When you commit adultery, divorce will take effect against you.” If by this he intends that divorce should occur as soon as adultery occurs, rather than merely intending to swear an oath, then it is not an oath and no expiation is due; divorce takes effect as soon as the condition is fulfilled. Any expression by which the speaker intends to encourage someone to do something, deter them from it, affirm something, or deny it is considered an oath by consensus, whether it is phrased as an oath or merely as a condition. If it is an effective oath, expiation is due when the oath is violated. If it is not an effective oath, such as swearing by a created being, no expiation is due. If it is an effective but merely reverential oath for which no expiation is due, then there is no ruling for it anywhere in the Quran or Hadith, nor any evidence supporting it.
The law currently in force in Egypt concerning conditional or oath-linked divorce is stated in Article 2 of Law No. 25 of 1929 as follows: “When a conditional or oath-linked divorce is intended merely to encourage someone to do something or refrain from doing it, divorce does not take effect by it.” Its explanation states: “A law was enacted treating oath-linked divorce as invalid according to the view of certain Hanafi, Maliki, and Shafi‘i scholars, and treating conditional divorce carrying the meaning of an oath as invalid according to the views of Ali, Qadi Shurayh, Dawud al-Zahiri, and others.”
Divorce Expressed with Reference to the Future
Words used to make divorce take effect at a future time include: “Divorce will take effect against you tomorrow” or “at the beginning of next year.” In this case, if the marriage still exists at the specified time, divorce will take effect then. If the husband says to his wife, “Divorce will take effect against you by the end of the year,” Abu Hanifah and Malik hold that divorce occurs as soon as it is said. Al-Shafi‘i and Ahmad hold that it does not occur until the year has elapsed. Ibn Hazm said that no divorce occurs when divorce is assigned to any future time—not immediately and not when the specified time arrives. The evidence is that neither the Quran nor the Sunnah mentions the validity of divorce taking effect in this manner. Allah taught us only two kinds of divorce: divorcing a wife with whom intercourse has occurred and divorcing one with whom it has not. As far as we know, there is no information concerning the divorce under discussion. Allah said: “Whoever transgresses Allah’s limits has wronged himself.” Moreover, when every divorce pronounced immediately does not take effect, divorce certainly cannot take effect at a future time when it was not actually pronounced.
Sunnah Divorce and Innovative Divorce
On the basis of following or not following the Sunnah, divorce is of two kinds: Sunnah divorce and innovative divorce.
Sunnah Divorce
Sunnah divorce is divorce given in the manner prescribed by the Sharia. Divorcing a wife with whom intercourse has occurred while she is in a state of purity following menstruation, without having intercourse during that period of purity, is called Sunnah divorce. Allah said:
الطَّلَاقُ مَرْتَانِ فَإِمْسَاكَ بِمَعْرُوفٍ أَوْ تَسْرِيعُ بِإِحْسَانٍ
“Divorce is twice; then either retain the wife honorably or release her graciously.” That is, a divorce prescribed by the Sharia is first given once, after which there remains an opportunity to revoke it. It is then given a second time, after which there is again an opportunity to revoke it. After that, the person giving divorce has the choice either to retain her honorably or to release her graciously. Allah Most High says:
يَا أَيُّهَا النَّبِي إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ
“O Prophet, when you divorce women, divorce them for their waiting period.” That is, if you wish to divorce, do so at a time when she will enter her waiting period. A divorced wife enters her waiting period when she is pure from menstruation or postpartum bleeding and is divorced before intercourse. The reason is that if a wife is divorced while menstruating, the remaining time of that menstruation is not counted as part of her waiting period, thereby causing her harm. If she is divorced after intercourse during a period of purity, she cannot know whether she has become pregnant. Consequently, she does not know whether to calculate her waiting period by periods of purity or by giving birth.
Nafi‘ narrated that Abdullah, the son of Umar, divorced his wife while she was menstruating during the lifetime of the Messenger of Allah. Umar asked the Messenger of Allah about it, and he said: “Command Abdullah to revoke the divorce. Then let him retain her until she becomes pure; then she menstruates and becomes pure again. After that, if he wishes, he may retain her, or he may divorce her before having intercourse. This is the waiting period in view of which Allah has commanded that women be divorced.” In another narration, the Messenger of Allah said: “Command him to revoke the divorce. Then let him divorce her when she is pure or pregnant.” —Al-Nasa’i, Muslim, Ibn Majah, and Abu Dawud.
This divorce clearly proves that divorce given during the state of purity following menstruation, before intercourse, is Sunnah divorce. This is the position of Abu Hanifah’s school and, according to one narration, of Ahmad and al-Shafi‘i as well. They based their evidence on the explicit wording of the hadith. Moreover, since divorce was prohibited because of menstruation, once purity occurs there is no longer a reason for prohibition. Therefore, divorce during that state of purity is permissible.
Innovative Divorce
Innovative divorce is divorce contrary to the Sharia. Examples include giving three divorces at once, or giving three divorces in succession during the same sitting, such as saying, “I divorce you, I divorce you, I divorce you,” or divorcing during menstruation or postpartum bleeding, or after intercourse during a period of purity. The scholars unanimously state that innovative divorce is prohibited and a major sin. According to most scholars, although innovative divorce is prohibited, it nevertheless takes effect. Their evidence is:
1. Innovative divorce falls under the general verses concerning divorce.
2. Concerning Ibn Umar’s divorce of his wife while she was menstruating, and the Messenger’s order that he revoke it, Ibn Umar explicitly stated that the divorce counted as a divorce. However, some scholars, including Ibn Ulayyah, Ibn Taymiyyah, Ibn Hazm, and Ibn al-Qayyim, hold that innovative divorce does not take effect and identify it as an exception to ordinary divorce. They argue that it is not among the divorces Allah permitted; rather, it is among those He prohibited. The Messenger of Allah told Umar to order him to revoke the divorce. It is also authentically established that when the Messenger learned of this, he became angry, whereas he could not become angry over an act Allah had made lawful. Although Ibn Umar said that the divorce counted as a divorce, he did not say who counted it as such.
In summary, any divorce contrary to Sunnah divorce is innovative divorce, and everyone agrees on this. The Messenger of Allah said, “Every innovation is misguidance.” Everyone agrees that this divorce contradicts the ruling Allah gave concerning divorce in His Book and the procedure described by the Messenger in the hadith narrated by Ibn Umar. Indeed, everything contrary to the ruling given by Allah and His Messenger is to be rejected. Aisha narrated that the Messenger of Allah said: “Any deed not performed according to our prescribed manner is rejected.” This hadith was narrated by al-Bukhari and Muslim. Therefore, anyone who claims that this innovative divorce must take effect, and that an act not performed according to the Messenger’s ruling will nevertheless be effective, cannot establish that claim without evidence.
Those Who Hold That Innovative Divorce Does Not Take Effect:
The view of Abdullah ibn Umar, Sa‘id ibn al-Musayyab, and among Ibn Abbas’s students, Tawus, Khallas ibn Umar, and Abu Qilabah; of the Hanbali Imam Ibn Aqil; the Imams of the Ahl al-Bayt; the Zahiri school; a group within Imam Ahmad’s school; and Ibn Taymiyyah is that innovative divorce does not take effect.
Divorce of a Pregnant Woman:
It is permissible to divorce a pregnant woman whenever one wishes. Muslim, al-Nasa’i, Abu Dawud, and Ibn Majah narrate that Ibn Umar divorced one of his wives while she was menstruating. When Umar informed the Messenger of Allah, he said: “Command him to revoke the divorce. Then, when she becomes pure or pregnant, let him divorce her.” This is the view of all scholars except the Hanafi scholars. Imam Abu Hanifah and Abu Yusuf say that a month must separate two divorces so that three divorces may be completed. Muhammad and Zufar say that more than one divorce may not be given to a pregnant woman: one divorce should be given and she should be allowed time until she gives birth; the remaining divorces may then be given.
As for a wife who is no longer expected to menstruate, whose menstruation has ceased, or who is underage, Sunnah divorce for all of them consists of giving only one divorce. No other condition is imposed.
The Number of Divorces
A husband has the authority to give three divorces to a wife with whom he has had intercourse. The scholars unanimously state that it is prohibited for a husband to give three divorces in one statement, or three divorces in successive separate statements during the same period of purity. They explain that if three divorces are given at once, the way to remedy the situation after regret is closed. The Sharia has prescribed multiple divorces in stages and with intervals so that there may be a remedy in the event of regret and remorse. Moreover, this causes irreparable harm to the wife, because it permanently severs her relationship with her husband.
Al-Nasa’i narrated from Mahmud ibn Labid: We informed the Messenger of Allah that a man had given his wife three divorces at once. As soon as he heard this, the Messenger of Allah rose angrily and said, “Is he playing with the Book of Allah while I am still alive among you?” A man stood up and said, “O Messenger of Allah, shall I kill him?” Ibn al-Qayyim said: This hadith indicates that the Messenger accused him of playing with the Book of Allah, because he violated the procedure of divorce and opposed what Allah intended. Allah intended that if he wished to divorce, he should give a divorce after which he could bring his wife back if he wished. Yet by giving three divorces, he expressed his intention not to retain the ability to bring her back. Moreover, giving three divorces at once directly conflicts with Allah’s statement: “Divorce is twice.” Whether in Arabic or any other language, when it is said “twice” or “many times,” it clearly means one time followed by another; it never means several times at once. Thus, when someone gives two or more divorces at once, he transgresses Allah’s specified limits, as established by the Book of Allah. Although the Imams unanimously consider giving multiple divorces at once prohibited, they differ regarding whether three divorces take effect. If they do take effect, does one divorce occur, or do all three take effect?
Some scholars say that all three divorces take effect. Others say that one divorce occurs. Still others say that if intercourse has taken place with the woman being divorced, three divorces occur; otherwise, one divorce occurs.
The evidence of those who hold that three divorces take effect is:
فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدِ حَتَّى تَنْكِحَ زَوْجًا غَيْرَه
1. Allah says: “If he divorces her, she is not lawful for him thereafter until she marries another husband.”
2. Allah says:وَإِن طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَنْ تَمَسُّوهُنَّ وَقَدْ فَرَضْتُم“And if you divorce them before having intercourse.”
3. Allah says:لا جُنَاحَ عَلَيْكُمْ إِنْ طَلَّقْتُمُ النِّسَاءَ
“There is no blame upon you if you divorce women.” These verses clearly indicate that whether one, two, or three divorces are given, they take effect, since no distinction is made here regarding the number of divorces.
4. Allah also says:الطَّلَاقُ مَرَّتَنِ مِن فَإِمْسَاكَ بِمَعْرُوفٍ أَوْ تَسْرِيحٌ بِإِحْسَانٍ
“Divorce is twice; then either retain her honorably or release her graciously.” This verse clearly indicates that three or two divorces, whether given together or separately, are valid and take effect.
5. Imam Ahmad narrated from Sahl ibn Sa‘d that when a member of Banu Ajlan performed li‘an with his wife, he said, “O Messenger of Allah, retaining her would wrong her. I divorce her, I divorce her, I divorce her.”
6. Abdullah ibn Umar reported that he divorced his wife once while she was menstruating. He then intended to divorce her two more times during the two subsequent periods of purity. When the Messenger (peace be upon him) learned of this, he said, “O Ibn Umar, Allah has not commanded you to do this. You have erred in following the method of the Sunnah. The Sunnah is that you should divorce her during each period of purity when she is in a state of purity.” Then, following the Messenger’s command, I took back the divorce. He then said, “When your wife becomes pure, either divorce her or retain her.” I said, “O Messenger of Allah (peace be upon him), what if I had divorced her three times? Would taking back the divorce have been permissible for me?” He said, “No; she would have become finally separated from you, and that would have been sinful.”
7. Abd al-Razzaq narrated from Ubadah ibn al-Samit: “My grandfather divorced one of his wives one thousand times. Then Ubadah went to the Messenger of Allah (peace be upon him) and informed him of the matter. The Messenger of Allah (peace be upon him) said, ‘Your grandfather did not do what was appropriate for piety. Of the one thousand divorces, three are his, while the remaining nine hundred and ninety-seven are injustice and oppression. If Allah wishes, He will forgive him; and if He wishes, He will punish him.’”
According to another narration, your grandfather did not fear Allah and left no way of rescue for himself. Through the three divorces, his wife became separated from him in a manner contrary to the Sunnah. The remaining nine hundred and ninety-seven divorces hang around his neck as sins.
8. It is narrated in the hadith of Rukanah that the Messenger of Allah (peace be upon him) made him swear that he had not intended more than one divorce. This proves that if he had intended three divorces, they would have taken effect. This is the view of most of the Tabi‘un, a large number of the Companions, and the imams of the four schools of law.
On the other hand, those who say that when multiple divorces are pronounced at once, only one divorce takes effect, present the following proofs:
First: the hadith narrated by Muslim. Abu al-Sahba said to Ibn Abbas, “Do you know that during the time of the Messenger of Allah (peace be upon him), Abu Bakr, and the early part of Umar’s caliphate, three divorces were counted as one divorce?” Ibn Abbas said, “Yes, I know.”
It is also narrated by Muslim that during the time of the Messenger of Allah (peace be upon him), the time of Abu Bakr, and the first two years of Umar’s caliphate, three divorces were counted as one divorce. Umar said, “People are rushing into a matter in which they had an opportunity to revoke the divorce. What if we were to enforce it upon them?” Then he enforced it. In other words, people previously pronounced one divorce, whereas nowadays they pronounce three divorces at once.
Second: Ikrimah narrated from Ibn Abbas: “Rukanah divorced his wife three times in a single sitting. Then he became extremely distressed over her. The Messenger of Allah (peace be upon him) asked him, ‘How did you divorce her?’ He replied, ‘Three divorces.’ The Messenger of Allah (peace be upon him) said, ‘In a single sitting?’ He said, ‘Yes.’ He said, ‘That is nothing other than one divorce. You may take your wife back if you wish.’ So he took her back. —Ahmad and Abu Dawud.”
Ibn Taymiyyah said (Fatawa, vol. 3, p. 22): “There is nothing in the sources of the Shariah—namely, the Qur’an, the Sunnah, consensus, and analogy—that makes three divorces binding upon him. His marriage certainly remains valid. His wife is certainly prohibited to other men. If three divorces were binding, she would become unlawful for him and lawful for others. Moreover, this would open the way to seeking a pretext for the halala marriage that Allah and His Messenger have forbidden. Halala marriage, or tahleel marriage, did not arise during the time of the Messenger of Allah (peace be upon him) or his caliphs. No incident has been narrated in which, during their time, a wife was returned to her husband through tahleel after three divorces. Rather, the Messenger of Allah (peace be upon him) cursed both the person who contracts a tahleel marriage and the one for whose sake it is contracted. In short, the Messenger of Allah (peace be upon him) did not make this a divinely legislated ruling for his community that could not be altered. For no ruling can be abrogated after the Messenger of Allah (peace be upon him). It is authentically established from the Messenger of Allah (peace be upon him), and moreover, during the time of Abu Bakr and the early part of Umar’s caliphate, three divorces were counted as one divorce. At most, what subsequently appears is that the Companions continued to follow this ruling, although he did not know of it. Although this may seem impossible, it proves that during his time and the time of Abu Bakr they issued fatwas according to this rule. The Messenger of Allah (peace be upon him) had previously issued fatwas in this manner. This is his fatwa. His Companions implemented this fatwa as though they had received it directly from him, and no one opposed it.”
At one point, Umar preferred to enforce three divorces as a punishment for the people, so that they would never again pronounce three divorces at once. This was Umar’s ijtihad. His aim was to introduce a measure serving the public interest. Nevertheless, because of Umar’s ijtihad, it is not permissible to abandon the fatwa of the Messenger of Allah (peace be upon him), for his Companions followed this fatwa during his time and during the time of his caliphs. Once the truth has become clear, let whoever wishes say whatever he wishes.
Imam al-Shawkani said that the views of Abu Musa, Ali, Ibn Abbas, Tawus, Ata, Jabir, Ibn Zayd, al-Hadi, al-Qasim, Baqir, Ahmad ibn Isa, Abdullah ibn Musa, Zayd ibn Ali, Ibn Taymiyyah, Ibn al-Qayyim, Ibn Dinar, Ibn Masud, Abd al-Rahman ibn Awz, and al-Zubayr are likewise. This view has also recently been adopted by the courts.
On the other hand, those who say that pronouncing three divorces at once does not constitute divorce at all argue that it is an innovated divorce and therefore entirely futile. A number of the Tabi‘un—such as Ibn Ulayyah, Hisham, Abu Ubaydah, some imams of the Zahiri school, Baqir, Sadiq, and Nasir—held this view. They maintain that an innovated divorce does not take effect. Those who distinguish between divorcing before and after intercourse include a group of the followers of Ibn Abbas and Ishaq ibn Rahwayh.
Divorce of Separation
Imam al-Tirmidhi said that there is disagreement among the Companions and the scholars who came after them concerning the divorce of separation. Umar ibn al-Khattab held that the divorce of separation counts as one divorce, while Ali transformed it into three divorces. Some say that the husband’s intention is decisive. If he intended one divorce, it is one; if he intended three, it is three; and if he intended two, it is one. This is the view of Imam al-Thawri and the scholars of Kufa. Malik ibn Anas said that, in the case of a wife with whom intercourse has taken place, separation means three divorces. Al-Shafi‘i said that if he intended one divorce, it is one and the husband may revoke it; if he intended two, two divorces take effect, and if he intended three, three take effect.
Revocable and Irrevocable Divorce
Divorce is of two kinds: raj‘i (that is, revocable) and ba’in (separating or irrevocable). Ba’in divorce is also of two kinds: minor ba’in and major ba’in. Each kind of divorce has specific legal rulings.
If a husband divorces a wife with whom he has had intercourse, without receiving any compensation, and after either one previous divorce or no previous divorce at all, that divorce is called raj‘i, or revocable, divorce. It makes no difference whether this divorce is pronounced explicitly or in an allusive expression. But if he has not had intercourse with her after the marriage, or if he divorces her in exchange for compensation, or if he divorces her for the third time after having previously divorced her twice, then that divorce is ba’in divorce. Section 25(5) of the Egyptian Law of 1929 states:
“Every divorce, except a divorce completing three divorces (that is, the third divorce), a divorce pronounced before intercourse, a divorce given in exchange for compensation, and a divorce designated as ba’in under this law and the Law of 1920, is a raj‘i divorce. The divorces designated as ba’in under these two laws are those resulting from a defect in the husband: his being missing, his being imprisoned, or harm caused by him. The following statement of Allah declares the principle concerning this matter:”
فَإِذَا بَلَغن أَجَلَهُنَّ فَامْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهَدُوا ذَوِي عَدْلٍ مِّنكُمْ
“Divorce is twice. Then either retain [her] in a fair manner or release [her] with good treatment.” (Al-Baqarah, verse 229)
In other words, the divorce legislated by Allah may occur once and then once again. For the husband, retaining her fairly after the first divorce means revoking the divorce, restoring the wife to the marital bond, and treating her well. The husband cannot do these things unless the divorce is raj‘i. Allah says:
وَالْمُطَلَّقَت يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ ثَلَثَةَ قُرُوءٍ ، وَلَا يَحِلُّ لَهُنَّ أَن يَكْتُمْنَ مَا خَلَقَ اللَّهُ
فِي أَرْحَامِهِنَّ إِن كُنْ يُؤْمِنُ بِاللَّهِ وَالْيَوْمِ الْآخِرِ وَبُعُولَتُهُنَّ أَحَقُّ بِرَدِّهِنَّ فِي ذَلِكَ
إِنْ أَرَادُوا إِصْلَاحًا
Meaning: “Divorced women shall wait by themselves for three menstrual periods. It is not lawful for them to conceal what Allah has created in their wombs, if they believe in Allah and the Last Day. Their husbands have a greater right to take them back during that period, if they seek reconciliation.” (Al-Baqarah, verse 227)
The distinction between three divorces and raj‘i divorce is, of course, established by the Holy Qur’an itself. It is set out below:
The third divorce separates the wife from her husband and makes her unlawful for him. After the third divorce, it is not lawful for the first husband to take her back until she marries another man and then becomes separated from that husband through the natural process. Even if the marriage is contracted with the purpose of making her lawful for the first husband, that marriage does not make her lawful for him. Allah Most High says:
فَإِنْ طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِنْ بَعْدِ حَتَّى تَنْكِحَ زَوْجًا غَيْرَهُ6
“Then, if he divorces her [after two divorces], she is not lawful for him thereafter until she marries another husband.” That is, until she marries in a valid and unconditional manner. If she is divorced before intercourse after the marriage, she is likewise separated from that husband, because in this case the divorced woman is not required to observe any waiting period. The opportunity to revoke a divorce is limited to the waiting period. When there is no waiting period, there is no opportunity for revocation. Allah says:
بِأَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَعْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا
لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُونَهَا جَ فَمَتِعُوهُنَّ وَسَرِّمُوهُنَّ سَرَاحًا جَمِيلاه
“O believers, when you marry believing women and then divorce them before you have touched them, they will have no waiting period for you to count. So provide them with some provisions and release them graciously.” (Al-Ahzab: 49)
However, a woman divorced before intercourse, and a wife divorced after seclusion, is separated—that is, she is divorced by a ba’in divorce. Nevertheless, observing her waiting period is obligatory as a precaution, not for the purpose of revocation. When a wife gives her husband some money and receives a divorce in return, she becomes divorced by a ba’in divorce, because she has paid him intending to free herself from him. If this divorce were not ba’in, this freedom would not be achieved. Allah says:
فَإِنْ خِفْتُمْ أَلَّا يُقِيمَا حُدُودَ اللهِ لاَ فَلاَ جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ
“And if you fear that the two will not uphold Allah’s limits, there is no blame upon either of them if she offers compensation to secure her release.” (Al-Baqarah: 229)
Rulings of raj‘i divorce:
Raj‘i divorce does not prevent sexual relations with the wife, because it does not sever the marriage bond. It does not diminish the husband’s marital rights over his wife or undermine her lawful status. Although it is a cause of separation, it has no effect during the divorced woman’s waiting period. It takes effect only after the waiting period has elapsed if the divorce is not revoked. As long as the waiting period continues, the husband remains obliged to provide the wife’s maintenance; if he divorces her, it takes effect. Likewise, zihar and ila take effect, and if either of them dies during this period, the other inherits from him or her. As for the deferred portion of the mahr whose term is set until either death or divorce, it does not become due through raj‘i divorce. Only the remaining mahr becomes due after the waiting period ends. The right to revoke the divorce belongs exclusively to the husband throughout the entire waiting period. Shariah itself has granted him this right. If he himself renounces this right, it is not thereby annulled. Even if he says, ‘I have renounced my right to revoke the divorce,’ he will still retain the right to revoke it and the right to revoke his wife’s divorce will remain. For Allah has said that their husbands have the greatest right to take them back. Since revoking the divorce is the husband’s right, the wife’s consent and knowledge are not conditions for it. Therefore, appointing a guardian or witnesses is not necessary, although having witnesses is recommended, because there is a possibility that the husband may later deny having revoked the divorce. Allah says, “Have two just men among you bear witness.” Revocation of divorce is valid by words, such as saying, ‘I revoke the divorce I gave you.’ It is also valid by action, such as intercourse or its preliminaries, including kissing and embracing with desire. According to Imam al-Shafi‘i, divorce may be revoked only by explicit words, not by intercourse or its preliminaries, kissing, embracing, or similar actions. In his view, divorce itself terminates the marriage.
Ibn Hazm said that if the husband has intercourse, he does not thereby become one who has revoked the divorce until he declares the revocation before two witnesses and informs the wife before her waiting period ends. If he does not declare the revocation before witnesses, he has not revoked it, because Allah says:
فَإِذَا بَلَغن أَجَلَهُنَّ فَامْسِكُوهُنَّ بِمَعْرُوفٍ أَوْ فَارِقُوهُنَّ بِمَعْرُوفٍ وَأَشْهَدُوا ذَوِي عَدْلٍ مِّنكُمْ
“Then, when the women have nearly reached the end of their waiting period, either retain them honorably or part with them honorably, and call two just men from among you to witness.” It is clear that Allah distinguished between pronouncing divorce, revoking divorce, and appointing witnesses. Therefore, it is not permissible to separate one of these from the others. Thus, whoever divorces without having two just men bear witness, or revokes a divorce without having two just men bear witness, violates Allah’s command. The Messenger said, “Whoever does something that is not in accordance with our command, it is rejected.” Abu Dawud, Ibn Majah, al-Bayhaqi, and al-Tabarani narrated from Imran ibn Husayn:
“He was asked about a man who divorces his wife and then has intercourse with her without having anyone bear witness to the divorce or its revocation. He said, ‘Both the divorce and its revocation were contrary to the Sunnah. Have witnesses present at the wife’s divorce and its revocation, and do not repeat such an act.’”
Al-Shawkani said that what the early scholars said is correct, because the waiting period is a time for reconsidering the decision. This reconsideration may be made both by word and by action. Moreover, Allah’s statement that “their husbands have the greater right to take them back,” and the Messenger’s saying to Umar, “Tell him to revoke the divorce,” clearly indicate that revocation may also be effected by action. The Messenger did not restrict it to words or actions. Whoever claims that it is restricted must produce proof. (Nayl al-Awtar, vol. 6, p. 214)
The husband’s relationship with a wife divorced by raj‘i divorce:
Abu Hanifa said that it is permissible for a wife divorced by raj‘i divorce to adorn herself for her husband, apply perfume, look at him furtively, wear jewelry, expose her fingers before him, and apply kohl to her eyes and display it. However, it is not permissible for the husband to approach her without informing her by coughing, making the sound of his shoes, or using some other word or action. According to Imam al-Shafi‘i, a wife divorced by raj‘i divorce is entirely forbidden to the man who divorced her. Imam Malik said that it is not permissible for him to meet her in seclusion or approach her without her permission, nor is it permissible to look at her hair. However, if someone else is with the wife, it is permissible to eat and drink together with her. Later, however, Imam Malik declared eating together impermissible.
Raj‘i divorce reduces the number of divorces:
Raj‘i divorce reduces the number of divorces the husband is entitled to pronounce against his wife. If it is the first divorce, he will have two opportunities for divorce remaining. If it is the second divorce, one divorce will remain. Even if he subsequently revokes the divorce he gave his wife, its effect does not disappear. Rather, if he leaves her in that state and the waiting period expires without revocation, then she marries another husband and afterward returns to the first husband, she will retain the remaining divorces. The second husband cannot nullify any divorce previously pronounced against her. A man had divorced his wife twice. Her waiting period then expired, and she married another husband and separated from him; afterward, she married the first husband again. When this was reported to Umar, he said, ‘She returned to the first husband with the remaining divorces.’ Ali, Mu‘adh, Abdullah ibn Amr, Sa‘id ibn al-Musayyab, and Hasan al-Basri held the same view.
Ba’in divorce
We have already established that the final divorce of three divorces, a divorce pronounced before intercourse, and a divorce given in exchange for money are ba’in divorces. Ibn Rushd said in Bidayat al-Mujtahid: “Regarding ba’in divorce, the jurists agree that divorce becomes ba’in in three circumstances: when divorce is pronounced before intercourse, according to the number of divorces, and when compensation is given in khul‘ divorce. However, they disagree over whether khul‘ is a divorce or annulment of the marriage. The jurists agree that the number of divorces that makes the divorce of a free woman ba’in is three, if they are pronounced separately, because Allah has said, ‘Divorce is twice—”
According to Ibn Hazm, ba’in divorce is only the last of three divorces, or a divorce pronounced before intercourse. He said, “In Allah’s religion, from Allah or from the Messenger, we find an irrevocable ba’in divorce only in three divorces pronounced together or separately, or in a divorce before which intercourse did not occur. Apart from these, there is no proof for any other case.” (Al-Muhalla, vol. 10, pp. 216, 240) In addition, under family law, a divorce granted because of the husband’s impotence, his absence, his imprisonment, or harm is also called a ba’in divorce.
Types of ba’in divorce:
Ba’in divorce is of two types: minor ba’in divorce, which is fewer than three divorces; and major ba’in divorce, which is the final of three divorces.
Rulings of minor ba’in divorce:
As soon as minor ba’in divorce is pronounced, it severs the marital bond. Because the marital bond has been severed, the divorced wife is regarded by her husband as a stranger, or a non-mahram woman. Therefore, it is no longer lawful for the husband to have intercourse with her. If either of them dies before or after the waiting period is completed, neither will inherit from the other. As soon as ba’in divorce is pronounced, the time becomes due for payment of the deferred remainder of the mahr, which is payable upon whichever occurs later—death or divorce.
The husband has the right to take back a woman whom he divorced by minor ba’in divorce through a new marriage contract with a new mahr. In this case, she does not need to marry another husband. When he takes her back, she returns to him with the remaining divorces. If the husband had previously divorced her once, he will have the right to pronounce two more divorces after taking her back. If he had pronounced two divorces, he will have the right to pronounce only one more divorce—that is, if he ever wishes to divorce her.
Rulings of major ba’in divorce:
Like minor ba’in divorce, major ba’in divorce severs the marital bond. All the other rulings are the same. The only difference is that after major ba’in divorce, it is not lawful for the husband to take his wife back until she has genuinely married another husband. She must marry the other husband without the intention of tahleel, and intercourse must take place with him. Allah says:
“Then, if the husband divorces her, she will not be lawful for him afterward until she marries another husband.” That is, if after two divorces the husband gives her a third divorce, then once the three divorces have become ba’in, she will not be lawful for him until she has genuinely married another husband. The Messenger said to the wife of Rifa‘ah: “You cannot return to your first husband until the second husband has fully enjoyed you and you have fully enjoyed him.” That is, until intercourse takes place normally. —Al-Bukhari, Muslim
Does the second husband nullify the first husband’s remaining opportunity for divorce?
It is agreed that when a woman divorced by major ba’in divorce marries another husband, is then divorced, and returns to the first husband after completing her waiting period, she returns with an entirely new marital bond, and the first husband acquires the right to pronounce three divorces against her. This is because the second husband ended the first marital bond. Then, when she returns to the first husband through a new marriage contract, that contract creates a new marital bond and a new conjugal relationship.
On the other hand, when a wife divorced by a minor irrevocable divorce marries another man after completing her waiting period, is then divorced by him, and returns to her first husband, she becomes like a woman divorced by a major irrevocable divorce. He enters into a new marital bond with her, and her husband again acquires the right to pronounce three divorces against her. This is the opinion of Abu Hanifah and Abu Yusuf. Imam Muhammad, however, said that he acquires the right to the number of divorces remaining. Thus, she becomes like a wife divorced by a revocable divorce, or like a wife who entered a new marital bond after receiving a minor irrevocable divorce. Imam Muhammad’s opinion, however, is almost rejected in the Hanafi school.
Divorce Pronounced During the Death Illness
No clear evidence is found in the Qur’an and Sunnah concerning the consequence of a divorce pronounced during the death illness. However, it is known from the Companions that Abd al-Rahman ibn Awf divorced his wife Tamadir from the sickbed during the illness from which he died. That divorce was the third divorce. Uthman granted that wife inheritance from his estate. Uthman said, “I do not accuse Abd al-Rahman of intending to deprive his wife of her inheritance. I only intended to follow the Sunnah.” It is reported that Ibn Awf himself also said, “I did not divorce her in order to harm or deprive her.” That is, he did not deny the wife’s right to inherit. A similar incident occurred in the life of Uthman himself: when rebels surrounded him in his house, he divorced his wife Umm al-Banin. Later, when Uthman was martyred in that condition, Umm al-Banin went to Ali and informed him of everything. Ali granted her her inheritance and said, “Uthman had left his wife in a state of abandonment. Then, when death drew near, he severed his relationship with her.” For this reason, the jurists expressed various opinions concerning the ruling when someone divorces during the illness from which he dies. The Hanafis said that if a sick man gives his wife an irrevocable divorce and then dies of that illness, the woman inherits from him. If he dies after the waiting period ends, the wife does not inherit. The same ruling applies to one who has engaged in combat with someone, or one who has been taken to a designated place to be killed for retaliation or stoning, if he dies or is killed for that reason. But if he gives her three divorces at her request, or tells her, “You may do whatever you wish,” and then the wife frees herself from the marriage or obtains a khulʿ divorce, and the husband dies while she is observing her waiting period, the wife does not inherit from her husband. The difference between the two situations mentioned above is that in the first, the divorce was pronounced by the sick man himself, while he was aware that he had divorced her specifically to deprive her of her inheritance. Thus, he acts contrary to his own intention and secures inheritance for the wife. Indeed, this is why it is called a divorce intended to deprive. In the second situation, by contrast, there is no possibility of deprivation, because the wife herself requested it and accepted it freely. Likewise, the ruling is the same for one who is detained or besieged, or engaged in armed combat, and gives his wife an irrevocable divorce while in that condition. Ahmad and Ibn Abi Layla said that she inherits until she marries another husband after the waiting period. Malik and al-Layth said that she inherits whether she is still in the waiting period or not, and whether she marries another husband or not. Al-Shafiʿi said that she does not inherit.
The book Bidayat al-Mujtahid states that this difference of opinion arises from disagreement over whether it is obligatory to prevent harm to the wife. When the sick man is accused of divorcing his wife during his illness precisely to deprive her of her share of the inheritance, those who consider preventing harm obligatory hold that the wife inherits. Those who do not consider preventing harm obligatory do not deem the wife entitled to inherit. This group’s position is as follows:
If the divorce has in fact occurred, it takes effect with all its legal consequences. They say that if the wife dies, the husband does not inherit from her. If the divorce has not occurred, then the marital bond remains intact with all its legal consequences.
Their opponents must choose one of two answers. It is extremely difficult to say that the Shariah permits a divorce that includes some of the rulings of divorce and some of the rulings of the marital relationship. It is even more difficult to say that there is a distinction between validity and invalidity, because this would be a divorce whose ruling cannot be known until it becomes clear whether it is valid or invalid.
There is no room in the Shariah for such a statement. Those who say that the wife inherits if the husband dies during her waiting period do so because, in their view, the waiting period is part of married life. In reality, they regard it as similar to a revocable divorce; this view has also been reported from Umar and Aishah. Those who stipulate, for the wife to inherit, that she must not marry another husband after the waiting period do so because there is consensus among Muslims that it is not lawful for a woman to inherit from two husbands. Another reason is that those who support her inheritance identify the accusation as the cause of entitlement. But when the wife herself requests the divorce, or the husband grants her the authority to effect a divorce upon herself and she does so accordingly, the jurists have disagreed. Abu Hanifah said that in this case the wife inherits nothing at all. Al-Awzaʿi distinguished between pronouncing divorce and granting the authority to divorce. In his view, the wife does not inherit when authority is granted, but she does inherit when divorce is pronounced. According to Imam Malik, the same ruling applies in both cases—pronouncing divorce and granting the authority to divorce. He nevertheless said that if the wife dies, the husband does not inherit from her, but if the husband dies, the wife inherits from him. This, however, contradicts the fundamental principles of the Shariah. (Bidayat al-Mujtahid, 2/86–87)
Ibn Hazm said, “A divorce pronounced by a sick man is like a divorce pronounced by a healthy man, whether he dies of that illness or not. If the sick man’s divorce is a triple divorce, the final divorce of three, or a divorce before consummation, and then one of the two dies before or after the waiting period ends; or if it is a revocable divorce that is not revoked and ultimately one of them dies after the waiting period, then in all these cases neither the wife inherits from the husband nor the husband inherits from the wife. The same ruling applies when a healthy husband divorces a sick wife and when a sick husband divorces a sick wife. There is no difference between them. Likewise, the divorce pronounced by one detained to be killed and the divorce of a pregnant woman have the same status. The jurists, however, have differed considerably on this matter. (Al-Muhalla, 10/223)”
Granting the Authority to Divorce to the Wife or Someone Else
Divorce is a right of the husband. If he wishes, he may divorce his wife himself, grant his wife the authority to effect a divorce upon herself, or appoint a third person as an agent to pronounce the divorce. Whichever of these two actions he takes—granting the authority to his wife or to someone else—it does not diminish his own authority in the slightest, nor does it prevent him from exercising it whenever he wishes. The Zahiri school disagrees with this view. According to them, it is not lawful for a husband to grant the authority to divorce to his wife or anyone else. Ibn Hazm said that if a man grants his wife the authority to effect a divorce upon herself, then even if the authorized person exercises that authority, it does not necessarily take effect and divorce does not occur upon the wife, whether she divorces herself or not. This is because Allah granted men, not women, the authority to pronounce divorce.
Wording for Granting the Wife the Authority to Divorce:
1. “Choose your own path,” or “Choose your own future,” or “Consider yourself free.”
2. “Your authority is in your own hands.”
3. “If you wish, divorce yourself.”
The jurists have expressed various opinions concerning the use of each of these three forms of wording. I shall present these opinions briefly below:
1. “Choose your own path” or “Choose your own future”:
The jurists held that divorce takes effect through the use of this expression, because it is among the expressions that the Shariah recognizes as expressions of divorce. Allah says:
يَأَيُّهَا النَّبِيُّ قُلْ لِأَزْوَاجِكَ إِنْ كُنْتَى تُرِدْنَ الْحَيُوةَ الدُّنْيَا وَزِينَتَهَا فَتَعَالَيْنَ أَمَتِّعْكُن وَاسْرَحْكُن سَرَاحًا جَمِيله وَإِن كُنتُى تُرِدْنَ اللهَ وَرَسُولَهُ وَالدَّارَ الْآخِرَةَ فَإِنَّ اللَّهَ اعَن لِلْمُحْسِنَتِ مِنْكُنْ أَجْرًا عَظِيمَانِ
Meaning: O Prophet, tell your wives: If you desire the life of this world and its adornment, then come, I will provide for you and release you with a gracious release. But if you desire Allah, His Messenger, and the Hereafter, then Allah has prepared a great reward for those among you who do good. (Al-Ahzab: 28–29)
After this verse was revealed, the Messenger went to Aishah and said, “I am conveying to you, through His Messenger, a matter from Allah. Therefore, do not rush concerning it before seeking your parents’ permission.” Aishah said, “O Messenger of Allah, what is the matter?” The Messenger of Allah then recited the two verses to her. Aishah said, “O Messenger of Allah, should I seek my parents’ permission regarding you? Rather, I choose Allah, His Messenger, and the Hereafter. I ask you not to tell any of your other wives what you have told me.” The Messenger of Allah said, “Do not ask me that; I will certainly inform each of them.” Thereafter, all the wives of the Messenger reacted as Aishah had. Each of them gave preference to Allah, His Messenger, and the Hereafter.”
Al-Bukhari, Muslim, Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrated that Aishah said, “The Messenger of Allah gave us the choice, and we chose him. Therefore, he did not regard it as anything. Muslim’s narration says that the Messenger of Allah gave his wives the choice, but this did not result in divorce.” This proves that if they had chosen to regard themselves as free, it would have resulted in divorce, and that this expression is used to mean divorce.
The view of the Zahiri school is that if the wives of the Messenger had chosen to regard themselves as free, the Messenger would have divorced them. Divorce would not have occurred merely by their choosing to regard themselves as free.
No jurist other than the Zahiri jurists disagreed on this matter. There is disagreement, however, over what happens if the wife, after being given the choice, chooses to regard herself as free. Some say that one revocable divorce occurs. This is also the view of Umar, Ibn Masud, Ibn Abbas, Umar ibn Abd al-Aziz, Ibn Abi Layla, Sufyan, al-Shafiʿi, Ahmad, and Ishaq. According to Ali and the Hanafi school, one irrevocable divorce occurs. Malik ibn Anas held that if the wife chooses herself, three divorces occur, whereas if she chooses her husband, one divorce occurs. The Hanafis stipulate, however, that if she is told, “Consider yourself free,” she must respond by referring to herself and say, “I have chosen myself,” “I have chosen my own future,” or “I have chosen my own path.” If she merely says, “I have chosen freedom,” or “I have chosen,” nothing takes effect. The statement becomes completely void and meaningless.
2. “Your authority or power is in your own hands”: That is, “I grant you the authority I possess to divorce you or not.” If, after the husband says this, the wife divorces herself, then according to Umar, Abdullah ibn Masud, Sufyan, al-Shafiʿi, and Ahmad, one divorce occurs. It is reported that a man came to Ibn Masud and said, “Something unpleasant has occurred between my wife and me, as happens between many people.” He then said, “If the authority you have over me—that is, concerning divorce—were mine, I would know how to use it.” The man replied, “I grant you the authority I have over you.” Immediately he said, “Then you are divorced three times.” Ibn Masud said to him, “I think one divorce has occurred. As long as she remains in her waiting period, you have the greater right to her. I shall soon meet the Commander of the Believers, Umar.” He then met Umar and informed him of the entire incident. Umar said, “Allah granted men authority. They transfer to their wives the authority He gave them. What did you say about this?” Abdullah ibn Masud replied, “I think one divorce occurred, and the husband still has the greater right to his wife.” Umar said, “I think the same. Had you said otherwise, I would have understood that you were mistaken.” According to the Hanafis, one irrevocable divorce occurs in this case, because the husband’s granting authority to the wife entails the termination of his authority over her. When the wife accepts this authority as an independent authority, the termination of his authority over her necessarily follows. This cannot occur with a revocable divorce.
Is the Husband’s Intention or the Wife’s Intention Considered?
According to Imam al-Shafiʿi, the husband’s intention is considered: if he intended one divorce, one divorce occurs, and if he intended three divorces, three occur. In the case of granting authority, the husband may even object concerning the divorce itself or its number. Others say that if the wife intends more than one divorce, the number she intends takes effect. Since she possesses the authority to pronounce three divorces by explicit declaration, she also possesses that authority through implication, just as the husband does. If the wife then divorces herself three times and the husband says, “I did not grant her authority for more than one divorce,” his statement is disregarded. Judgment is based on what the wife says. This is the opinion of Uthman, Ibn Umar, and Ibn Abbas. Umar and Ibn Masud said that one divorce occurs.
Is the Granting of the Authority to Divorce into the Wife’s Hands Effective Immediately?
Ibn Qudamah says in Al-Mughni that when the authority to divorce is given to the wife, it remains in her hands permanently, not merely immediately. This is the opinion of Ali, Abu Thawr, Ibn al-Mundhir, and al-Hakam. Malik, al-Shafiʿi, and the companions of rational opinion said that it is immediate and limited to the session in which the authority was granted. After separating from her husband, she cannot divorce herself, because she was granted the authority to accept divorce by the words, “Consider yourself free.” Therefore, its effect is restricted to the session in which the authority was granted.
The first opinion, however, is preferable. When a man granted this authority to his wife, Ali said that it would remain in her hands as long as she did not renounce it. No Companion is known to have opposed this view. It may therefore be regarded as a consensus. Moreover, since this is a form of appointing an agent, it should remain in effect permanently. If this authority is granted to an unknown stranger, for example, it likewise remains in effect permanently, not merely immediately.
Revocation by the Husband of the Authority to Divorce
If the husband revokes the authority granted to his wife, or says, “I cancel the authority I gave you,” it is cancelled. This is the opinion of Ata, Mujahid, al-Shaʿbi, al-Nakhaʿi, al-Awzaʿi, and Ishaq. Al-Zuhri, al-Thawri, Malik, and the companions of rational opinion, however, said that the husband has no power to revoke or cancel it, because he has made her its owner and therefore has no authority or opportunity to revoke it. If the husband has intercourse with her, that constitutes revocation, because this is a form of appointing an agent. If the appointing party directly intervenes in the matter concerned, the agency is cancelled. If he takes back the authority entrusted to her, the delegated authority is cancelled, just as an agency contract is cancelled when the appointment of the agent is cancelled.
3. “If you wish, divorce yourself”: The Hanafis say that if a man tells his wife, without any intention or with the intention of one divorce, “Divorce yourself,” and she immediately replies, “I have divorced myself,” one revocable divorce occurs. If she divorces herself three times and the husband likewise intended three, then all three divorces occur. If the husband tells her, “Divorce yourself,” and she replies, “I have given myself an irrevocable divorce,” divorce takes effect against her. If she says, “I have freed myself,” divorce does not take effect. If the husband tells her, “Divorce yourself whenever you wish,” she may divorce herself immediately or at any later time. If the husband tells someone, “Divorce my wife,” that person may divorce her immediately or later. But if he tells someone, “Divorce my wife if you wish,” that person may divorce her only immediately, not later.
Divorce Through the Appointment of an Agent:
It is permissible to entrust someone else with effecting a divorce against one’s wife. This is like pronouncing the divorce oneself. The appointed person may pronounce the divorce immediately or later. Imam al-Shafiʿi ruled this divorce valid and said that it may be pronounced immediately or later. The disciples of Imam Abu Hanifah, however, said that it may be pronounced only immediately, not later. The author of Al-Mughni says that if an agent is appointed in unconditional wording, it is valid to pronounce the divorce at any time, provided that it is done before the appointment is revoked or intercourse takes place. The agent may pronounce one divorce or three divorces, just as a wife granted authority may pronounce one or three divorces.
A condition for appointing an agent is that the person must be qualified to act as an agent, meaning that he must possess sound reason. It is not permissible to appoint a child or an insane person as an agent. If such a person is appointed and the agent pronounces divorce, it does not take effect. The companions of rational opinion said that it is permissible to appoint a child or an insane person as an agent.
Using Unconditional and Conditional Wording in Granting the Authority to Divorce:
Sometimes these expressions are unconditional—for example, granting the wife the authority to divorce without mentioning anything further, or allowing the wife to choose herself as an independent authority. In such a situation, the wife may divorce herself only immediately and during the session in which the authority was granted, if she is present there. If she is not present, she may divorce herself only during the session in which she learns that the authority to divorce has been granted to her. If the session in which the authority was granted, or the session in which she learned of it, ends or changes without the divorce being exercised, she no longer possesses this right. Since the wording granting the authority was unconditional, its effect revolves around the relevant session. Without the session, there is no authority. This ruling applies when there is no evidence establishing that the wording granting the authority was unconditional. For example, if the authority was granted at the time the marriage contract was concluded, this would be the case. It is not normally understood that the person granting the authority intended to grant the wife the authority to divorce during the marriage session itself. Thus, in this case, it is understood not through verbal evidence but through circumstantial evidence that the wording granting the authority was unconditional.
Some Egyptian lower courts have ruled that if the authority to divorce is granted unconditionally at the time the marriage contract is concluded, it is not restricted to that session. The wife may divorce herself whenever she wishes; otherwise, granting the authority would have no meaningful effect. This ruling has also been upheld on appeal. Sometimes this wording is unconditional. For example, the husband may tell his wife, “You may choose yourself whenever you wish,” or, “Whenever you want, you may take the authority to divorce into your own hands.” In such a case, the wife may divorce herself whenever she wishes, because he granted her the authority to divorce unconditionally. She may therefore use this authority to divorce herself at any time. At other times, the wording granting the authority to divorce may be limited to a specific period—for example, granting the wife the authority to divorce herself within one year. In that case, she may divorce herself only within the specified period. Once that period has elapsed, she no longer has the authority to divorce herself.
Granting the Authority to Divorce at the Time of the Marriage Contract and Thereafter:
The wife may be granted the authority to divorce at the time the marriage contract is concluded or afterward. According to the Hanafi school, however, the condition for granting this authority at the time of the contract is that the wife herself must initiate it. For example, the wife says to the husband, “I marry you on the condition that the authority remains in my hands, so that whenever I wish I may obtain a divorce.” The husband replies, “I accept.” By this acceptance, the marriage contract is concluded, the delegation of authority to divorce is valid, and the wife has the right to obtain a divorce whenever she wishes. The marriage is concluded through the husband’s consent, and the authority to divorce is granted to the wife through the conclusion of the marriage. But if the husband initiates the granting of the authority at the time the marriage contract is concluded—for example, he says to his wife, “I marry you on the condition that control remains in your hands, so that whenever you wish you may divorce yourself,” and she replies, “I accept”—the marriage is concluded by this, but the granting of the authority to divorce is invalid, and the wife may not divorce herself. The difference between the two situations is that in the first, the husband consented to grant the authority after the contract had been concluded. This means that through the conclusion of the marriage contract the husband first acquired the right to divorce and then granted that right to the wife. In the second situation, however, the husband granted the right to the wife before he himself acquired the right to divorce, because he granted it before the marriage contract was concluded. At that point, only the offer had been completed; acceptance had not yet been completed.
Circumstances in Which a Court May Grant a Divorce:
The Egyptian laws of 1920 and 1929 mention the circumstances in which a court may grant a divorce. These provisions were adopted solely in light of the jurists’ ijtihad, because the Qur’an and Hadith contain no explicit statement on the matter. Consideration was given to public benefit, relieving people of hardship, and maintaining harmony with Islam’s liberal principles.
Law No. 25 of 1920 provides for divorce when the husband fails to provide maintenance and in cases of a serious defect in the husband. Law No. 25 of 1929 also provides for divorce on grounds of harm, the husband’s indefinite absence without excuse, and his imprisonment. Several important provisions of this law are set out below:
Divorce Because of Failure to Provide Maintenance:
Malik, al-Shafi‘i, and Ahmad held that when a husband does not provide his wife’s maintenance and has no known property, it is permissible, upon her petition, to dissolve the marriage by court judgment. [Maintenance means the essential and minimum necessities, such as food, clothing, and lodging. Failure to provide maintenance means failure to provide it presently and in the future. If maintenance was not provided in the past, dissolution may not be sought on that basis, nor may the wife’s claim be upheld for that reason. However, the unpaid past maintenance remains a debt upon the husband. If he is indigent, he must be given time until he becomes solvent. If the husband has property, maintenance will be recovered from that property instead of dissolving the marital relationship.]
The evidence supporting the views of Malik, al-Shafi‘i, and Ahmad is as follows:
The Shariah commands the husband either to retain his wife honorably or to release her graciously. For Allah has said that she must either be retained honorably or released graciously. There is no doubt that failing to provide maintenance is contrary to retaining her honorably. Allah has said:
وَلَا تُمْسِكُوهُنَّ مِرَارًا لِتَعْتَدُوا
“Do not retain them to harm them and thus commit aggression against them.” The Messenger of Allah (peace and blessings be upon him) also said, “No harm may be inflicted, nor may harm be reciprocated.” It goes without saying that there can be no greater injustice and harm than failing to maintain one’s wife. Removing this harm and injustice is the court’s duty. Since it is unanimously agreed that, when a husband has a serious defect, it is the court’s responsibility to dissolve the marital relationship, it is even more justifiable to dissolve it because of failure to provide maintenance than because of any other fault. According to the Hanafis, it is not permissible to dissolve the marriage because of failure to provide maintenance, whether the sole cause is refusal to provide it or poverty and inability. Their evidence is
لِيُنْفِقْ ذُوسَعَةٍ مِّنْ سَعَتِهِ وَمَنْ قُدِرَ عَلَيْهِ رِزْقَهُ فَلْيُنْفِقْ مِمَّا اللَّهُ اللَّهُ ، لَا يُكَلِّفُ اللَّهُ نَفْسًا إِلَّا مَا أَتْهَا ، سَيَجْعَلُ اللَّهُ بَعْدَ عُسْرِ يُسْرًا .
Meaning: Let the affluent man spend according to his means, and let the one whose provision is restricted spend from what Allah has given him. Allah does not burden anyone beyond what He has given him the capacity to bear. Allah will soon bring ease after hardship. (Surah al-Talaq, verse 7)
Imam al-Zuhri was asked about a man who was unable to provide his wife’s maintenance: Should the marriage between them be dissolved? He said that the husband should be given respite and the marriage should not be dissolved. He then recited the verse mentioned above.
2. Among the Companions were both indigent and affluent people. It is not known that the Messenger (peace and blessings be upon him) dissolved any of their marriages because they were unable to provide maintenance due to poverty.
3. The wives of the Messenger (peace and blessings be upon him) asked him for things that he did not possess. For this reason, he stayed away from them for a month as a disciplinary measure. If asking a husband for what he does not possess or cannot provide is punishable, then seeking dissolution because of poverty must certainly be considered an injustice, and there is no need to heed such a claim.
They further said: When failing to provide maintenance despite having the ability to do so is an injustice, the remedy is to sell his property to recover the maintenance or imprison him to compel him to provide it. Despite the availability of other means, there is no justification for adopting dissolution as the sole remedy. Therefore, the court will not dissolve their marital bond for this reason. Although dissolving the marital bond is lawful, it is more disliked by Allah Himself than anything other than the husband. When this is not the only way to remedy the injustice, how can the court resort to it? This applies when the husband is able to provide maintenance. But the man who lacks this ability has committed no injustice, because Allah imposes upon no person any duty beyond what He has given that person the ability to bear. On the other hand, section 4 of the 1920 law states: “When a husband refrains from providing his wife’s maintenance, if he has known property, arrangements shall be made for maintenance to be taken from it. If he has no known property and, without stating whether he is affluent or indigent, persists only in refusing to provide maintenance, the court shall immediately effect talaq against the husband. If he claims inability and cannot prove it, the court shall immediately effect talaq against him. If he can prove it, the court shall grant him a maximum of one month. If he does not provide maintenance within that month, talaq shall then be effected.”
Section 5: “When a husband is residing away in a nearby place, the court shall issue and enforce an order to recover maintenance from any known property he possesses. If he has no known property, the court shall fairly consider his excuse and objection and set a period for him. If, within that period, he neither sends his wife’s maintenance nor appears in person to arrange for it, the court shall effect talaq against him when the period expires. If he is residing so far away that contacting him is difficult, or his place of residence is unknown, or he is entirely missing, and it is established that he has no property from which the wife can obtain her maintenance, the court shall effect talaq against him. This section shall also apply to an imprisoned man who is unable to provide maintenance.”
Section 6: The talaq effected by the court because of failure to provide maintenance is revocable talaq. If, during the waiting period, it is proven that he has become solvent and is ready to provide maintenance, he may revoke the talaq. If his solvency is not proven and he is not ready to provide maintenance, revocation of the talaq is not valid.
Talaq Because of Harm and Abuse:
According to Imam Malik and Ahmad, if a wife complains that her husband is abusing her in a way that makes it presently impossible for them to maintain their marital relationship—such as beating, verbal abuse, unbearable oppression by any means, or forcing her to do or say something unjust and immoral—she may seek dissolution as a remedy for the complaint. When the complaint is proven by the wife’s evidence or the husband’s admission, the abuse is so severe that continuing the marital relationship is impossible, and the court is unable to reconcile them, it shall effect an irrevocable talaq against the wife. If the wife is unable to present evidence or the husband makes no admission, the court shall reject her complaint. But if she repeatedly brings complaints and seeks dissolution, while their truth is not established before the court, the court shall appoint two just men as arbitrators who have prior knowledge of the couple and the ability to reform them. It is preferable, if possible, to select the arbitrators from the couple’s families; otherwise, they must be selected from wherever suitable persons can be found. The duty of these two arbitrators is to determine the cause of the couple’s disagreement and reform them to the best of their ability. If they are unable to reform the couple, and either both spouses or the husband is responsible for the deterioration of the relationship, or the responsible party is unclear, the arbitrators shall decide to separate them through an irrevocable talaq. If the wife is responsible, the separation must be through khul‘, not talaq.
According to Abu Hanifah, Ahmad, and al-Shafi‘i, the two arbitrators have no right to pronounce talaq unless the husband has delegated that authority to them. According to al-Shafi‘i and Malik, if they both consider it appropriate to settle the dispute, with or without compensation, they may do so. If they consider khul‘ appropriate, they may arrange it. If the arbitrator representing the husband considers talaq appropriate, he may pronounce it. They are not obliged to obtain the husband’s permission, because they are arbitrators, not agents. Had they been agents, they would not possess this authority.
If the two arbitrators do not agree on an issue, the court shall order them to conduct a new investigation and inquiry. If they still fail to agree, the court shall remove them and appoint two new arbitrators. The duty of the two arbitrators is to present their respective views to the court, and it is the court’s duty to enforce their decision. For Allah has said:
وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُوا حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَا جِ إِنْ يُرِيدَا إِصْلَاحًا يُوَفِّقِ اللَّهُ بَيْنَهُمَا .
“If you fear a breach between them, appoint one arbitrator from his family and one arbitrator from her family. If they both desire reconciliation, Allah will bring about agreement between them.” (Al-Nisa, 35)
Allah has also said:
فَإِمْسَاكَ بِمَعْرُوفٍ أَوْ تَسْرِيعُ بِإِحْسَانٍ .
“Either retain her honorably or release her graciously.” Since the opportunity for reinstatement has been lost, the path of releasing her graciously is the only one remaining. The Messenger (peace and blessings be upon him) said:لَا ضَرَرَ وَلَاضِرَارَ “No one shall harm himself or harm another.”
The Act No. 25 of 1929 states
Section 6: When a wife complains that her husband abuses her to such an extent that cohabitation between them is impossible, she may petition the court for dissolution of the marriage. If the abuse is proven and reconciliation fails, the court shall grant the wife an irrevocable talaq. If the court rejects the wife’s petition, but complaints continue to be brought repeatedly and the abuse is not proven, the court shall appoint two arbitrators and settle the matter in accordance with sections 7, 8, 9, 10, and 11.
Section 7: The condition for appointing arbitrators is that both shall be just men; if possible, one shall be selected from each family, and otherwise they shall be selected from outside the families. They must already know the couple and be capable of reforming them.
Section 8: The duty of the two arbitrators is to learn the cause of the dispute between the husband and wife and make every effort to resolve it. If resolution is possible by a particular method, they shall resolve it by that method.
Section 9: If both arbitrators fail to resolve the dispute, and the husband or both spouses are responsible, or the actual circumstances remain unknown, they shall separate the couple by an irrevocable talaq.
Section 10: When a disagreement arises between the two arbitrators, the court shall order them to conduct another investigation. If the disagreement continues, it shall appoint two other arbitrators in their place.
Section 11: The two arbitrators shall present to the court exactly the decision they have reached, and the court shall issue its judgment accordingly.
Talaq Because of the Husband’s Absence:
According to Imam Malik and Ahmad, talaq may be effected because of the husband’s prolonged absence in order to remedy harm to the wife. Even if the husband has property within the wife’s reach from which she can obtain maintenance, she may seek dissolution because of his prolonged absence, subject to the following conditions. According to Malik, if dissolution occurs, it is an irrevocable talaq. According to Ahmad, it is dissolution of the marriage.
Conditions:
1. The husband’s absence has no acceptable justification.
2. The wife suffers harm because of his absence.
3. The husband resides in a city different from the city where the wife lives.
4. The husband’s absence continues for one lunar year, such that the wife’s harm is established.
If the husband is absent for an acceptable reason, such as seeking knowledge, conducting trade, or employment, dissolution may not be sought on that basis. Similarly, if the husband resides in the same city as the wife, dissolution may not be sought. Conversely, even apart from prolonged absence, if the wife suffers harm because he remains away from her for a relatively short period, she will also have the right to seek dissolution. The period of absence must extend to one lunar year so that harm to the wife becomes unavoidable, she experiences frightening loneliness and isolation, and fears falling into something Allah has prohibited and forbidden. Imam Malik set one lunar year as the period of absence. According to others, it is three months. According to Ahmad, the minimum suitable period for seeking dissolution is six months, since it has been discussed previously and established by Umar’s investigation and the ruling of Hafsah, Mother of the Believers, that six months is the maximum period a wife can endure her husband’s absence.
Seeking Talaq Because of the Husband’s Imprisonment:
According to Imam Malik and Ahmad, a wife has the right to seek talaq because her husband has been arrested and imprisoned, since his absence causes her harm. If a prison sentence of three years or more is finally pronounced, imposed upon the husband, and one year has elapsed from the date it began, the wife has the right to petition the court for talaq, because she may suffer harm from being separated from her husband. Once this is established, the court shall grant the wife one talaq. According to Imam Malik, this is an irrevocable talaq; according to Ahmad, it is dissolution. Ibn Taymiyyah said: The ruling concerning the wife of a prisoner or anyone similar, from whom she has no opportunity to benefit, and the wife of a missing person is unanimously the same. Section 12 of the law states: “When a husband is absent for one year or more without an acceptable reason, and the wife suffers harm because of being separated from him, she has the right to petition the court for an irrevocable talaq, regardless of how much opportunity she has to obtain maintenance from the husband’s property.”
Section 13: If it is possible for a letter to reach the missing husband, the court shall notify him by setting a period and informing him that, if within that period he does not appear to live with his wife, take her to live with him, or pronounce talaq, the court itself will effect talaq against his wife. If, after the period expires, the husband does none of these things and gives no acceptable reason, the court shall effect an irrevocable talaq and separate them. If it is impossible for a letter to reach the missing husband, the court shall grant the wife talaq without allowing any specified period or issuing notice.
Section 14: The wife of a person finally sentenced to imprisonment for three years or more may, after one year has elapsed from the beginning of his imprisonment, petition the court for an irrevocable talaq to remedy the harm she suffers, whether or not she has the opportunity to obtain maintenance from the husband’s property. The Shariah ruling concerning any other fault or defect in the husband has already been discussed.
Chapter Eleven: Khul‘
The marital bond rests upon peace, harmony, affection, compassion, good conduct, and the fulfillment of each other’s rights. Sometimes a husband may dislike his wife, or a wife may dislike her husband. In such cases, Islam urges patience and forbearance and advises treating or remedying the possible causes of dislike. Allah says:
وَعَاشِرُوهُنَّ بِالْمَعْرُوفِ : فَإِنْ كَرِهْتُمُوهُنَّ فَعَسَى أَنْ تَكْرَهُوا شَيْئًا وَيَجْعَلَ اللَّهُ فِيْهِ خَيْرًا كَثِيرًا
Meaning: Live with them (your wives) honorably. If you dislike them, it may be that you dislike something in which Allah has placed much good. (Surah al-Nisa, verse 19)
In an authentic hadith, the Messenger of Allah (peace and blessings be upon him) said: “A believing man should not hate a believing woman. If he dislikes one of her qualities, he may be pleased with another.”
Sometimes, however, dislike may increase and conflict may intensify. Treatment and remedy may become difficult, the bonds of patience may break, and the foundations of marital life—happiness, peace, affection, compassion, mutual rights, and the like—may collapse one after another. Consequently, married life may become incapable of reform and correction. Only in such an extreme situation does Islam permit the final remedy, when no other course remains.
If this unbearable aversion and loathing arises from the man, he already possesses the power of talaq. It is one of his rights, and he may exercise it within the limits approved by Allah. If the aversion arises in the wife, Islam likewise permits her to free herself from the marital bond through khul‘. This means returning to the husband what she received from him by virtue of being his wife, with the aim of ending their relationship. Concerning this, Allah has said:
وَلَا يَحِلُّ لَكُمْ أَنْ تَأْخُذُوا مِمَّا أَتَيْتُمُوهُنَّ شَيْئًا إِلَّا أَن يُغَانَا اَلَّا يُقِيْهَا حُدُودَ اللَّهِ . فَإِنْ خِفْتُمْ أَلا يُقِيمَا حُدُودَ اللَّهِ لا فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ مَا
Meaning: It is not lawful for you to take back anything of what you have given them. However, if both husband and wife fear that they cannot maintain Allah’s limits, that is a separate matter. Therefore, if you fear that they cannot maintain Allah’s limits, there is no sin upon either of them regarding what she gives to ransom herself. (Surah al-Baqarah, verse 229)
The husband’s acceptance of this ransom reflects justice and fairness. He is the one who gave her the mahr, bore all the expenses of the marriage and wedding night, and spent generously on her. In return, the wife denied all his contributions and sought separation. Therefore, there is no violation of fairness in her returning to the husband what she received.
If both dislike each other at the same time, then if the husband seeks separation first, he possesses the power of talaq, and he alone must bear all the consequences of exercising that power. If the wife seeks separation, she has khul‘, and she alone must bear all the consequences of khul‘. It is reported that khul‘ occurred during the Age of Ignorance. ‘Amir ibn Dhirab married his daughter to his nephew. When the daughter went to her husband ‘Amir ibn al-Harith’s wedding chamber, she developed intense hatred for her husband. The nephew then complained to the girl’s father. Her father said to his nephew: “I will not let you lose both your wife and your property. Return what you gave my daughter, and I have taken my daughter back from you.”
What Is Khul‘?
The khul‘ permitted by Islam is derived from the wordلَعَ ‘khalāya,’ which is used to mean removing clothing from the body. Since, according to the Qur’an, a woman is a garment for a man and a man is a garment for a woman, as Allah says:
هُنَّ لِبَاسٌ لَكُمْ وَأَنْتُمْ لِبَاسٌ لَّهُنَّ
“They (your wives) are clothing for you, and you are clothing for them.” (Al-Baqarah, 187)
Thus, ending the marital bond is called khul‘. It is also called ransom, because the wife gives her husband something in exchange for freeing herself from him. The jurists define it as follows: “Khul‘ is the husband’s separation from his wife in exchange for receiving something.” Its basis is the hadith narrated by Ibn ‘Abbas in al-Bukhari and al-Nasa’i: “The wife of Thabit ibn Qays came to the Messenger of Allah (peace and blessings be upon him) and said: O Messenger of Allah! I do not dislike my husband’s religion or character, but I hate misconduct toward relatives in Islam.
(That is, she did not want to leave him because of any defect in his religious practice or character. She wanted to leave him because he did not treat her relatives well. Since she disliked this conduct, she feared that, because of this dislike, she might be unable to fulfill her husband’s rights. It was out of this fear that she sought separation.)
The Messenger (peace and blessings be upon him) said: “Will you return to him the garden he gave you?” She said: “Yes.” Then the Messenger (peace and blessings be upon him) said to her husband: “Accept the garden and divorce her.”
Words Used in Khul‘:
According to the jurists, khul‘ must be effected using the word khul‘ or a word derived from it. A synonym of khul‘ may also be used, such as ransom or release. If a different word is used instead of khul‘ or one of its synonyms—for example, the husband says, “I divorce you in exchange for this amount of money,” and the wife accepts—then this is talaq in exchange for money, not khul‘.
However, Ibn al-Qayyim said: “Considering the substance and purpose of the contract, khulʿ signifies the termination of the marital relationship, regardless of the wording used, even if it is expressed with the word talaq.” The view of Imam Ahmad’s disciples, Ibn Taymiyyah, and Ibn Abbas is similar. Ibn Taymiyyah then said again: “Those who give importance to wording regarding the legal effect of a contract transform khulʿ expressed with the word talaq into talaq.” Ibn al-Qayyim gave preference to this view and said: “Studying fiqh and its principles shows that, in contracts, their actual substance is what matters, not their wording and outward form. One proof of this is that the Messenger of Allah (peace and blessings be upon him) instructed Thabit ibn Qays to divorce his wife in exchange for khulʿ. Nevertheless, he instructed his wife to observe an ʿiddah of one menstrual period. This conclusively proves that even when khulʿ is effected with the word talaq, it is in reality the termination of the marital bond. Moreover, Allah Most High made the ruling of ransom dependent upon it precisely because it is a ransom. Ransom is not restricted to any particular wording, and Allah did not prescribe any specific wording for it. Talaq obtained in exchange for ransom is conditional talaq, not unconditional talaq. Likewise, the revocability of talaq and observing an ʿiddah for three periods of purity are not established by an authentic hadith. (Zad al-Maʿad, 4/27)”
The Consideration Given in Exchange for Khulʿ:
It has already been stated that khulʿ is the termination of the marital relationship in exchange for payment. Thus, the consideration is an essential and inseparable part of the contract denoted by the word khulʿ. Therefore, where there is no consideration, there is no khulʿ. If a husband merely says to his wife, “I have made khulʿ with you,” and remains silent without mentioning any consideration, this is not khulʿ. If he intended talaq, it will be revocable talaq. If he had no intention at all, nothing results, because this is an allusive expression for which intention is essential.
Whatever May Lawfully Serve as Mahr May Lawfully Serve as Consideration for Khulʿ:
According to the Shafiʿi school, khulʿ is permissible in exchange for the entire mahr, part of it, or any other property, whether it is less or more than the mahr, and whether it is an object, a debt, or a benefit. The rule is: “Whatever may lawfully be given as mahr may lawfully be given as consideration for khulʿ.” This is because Allah said without qualification:
فَلَا جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ.
“There is no blame upon either of them concerning whatever she gives to ransom herself.” Since khulʿ is a contract based on a valuable commodity, it resembles marriage. Therefore, it is natural that the consideration for khulʿ should also resemble mahr. The consideration for khulʿ must be something that is property and known. It must also meet the conditions applicable to all other considerations, such as the ability to transfer it and the stability of ownership, and so forth. Khulʿ is a contract of exchange, so it resembles sale and purchase and mahr. These conditions are fully present in a valid khulʿ. In an invalid khulʿ, however, knowledge of the consideration is not a condition. Thus, if a husband makes khulʿ with his wife in exchange for an unknown thing, such as an unspecified garment, “whatever property is on the back of this animal,” or an unlawful condition, it will be irrevocable talaq, and the wife will be entitled to mahr al-mithl. Examples of an unlawful condition include that she will not be maintained while pregnant, will not be provided accommodation, or that khulʿ will be made in exchange for one thousand taka for a specified period, and the like.
The reason separation between the spouses occurs through khulʿ is that khulʿ is neither dissolution of marriage nor talaq, but a third category. If it is dissolution of marriage, then since an invalid consideration—namely, mahr—does not invalidate a marriage, the dissolution would not be invalid either. If it is talaq, talaq occurs even without consideration. Anything acquired without consideration is validly completed even when the consideration is invalid, as in marriage; indeed, marriage is completed even more soundly. Talaq occurs without consideration because talaq is extremely powerful: it takes effect by itself and immediately. The reason mahr al-mithl must be given is that when one consideration is invalidated, another consideration is recovered. But after separation the wife cannot be recovered, so something else must necessarily be returned in its place. The matter we have mentioned may be analogized to something resembling it, because if something is not part of another thing, its being unknown causes no harm. Mahr is such a thing. An example is when a man offers khulʿ to his wife in exchange for whatever she has in her hand, while the husband does not know what that thing is. In this case, irrevocable talaq takes effect upon the wife in exchange for mahr al-mithl. If she has nothing in her hand, some say that revocable talaq occurs, while others say that irrevocable talaq occurs in exchange for mahr al-mithl. According to the Malikis, khulʿ is permissible in exchange for an uncertain object, such as the calf in a certain cow’s womb. If the calf later dies in the womb, the husband receives nothing, while irrevocable talaq takes effect upon the wife. Similarly, khulʿ is permissible in exchange for an unspecified thing, produce or crops that have not yet appeared fit for harvest, and release from the duty of raising a child. In the latter case, the right of custody will be assigned to the husband. If someone makes khulʿ in exchange for a forbidden thing, such as wine or known stolen property, the husband receives nothing. Irrevocable talaq takes effect upon the wife; the wine must be discarded, and the stolen property must be returned to its owner. The wife is not obliged to give anything else in exchange. It is sufficient that the husband knows the thing is forbidden; whether the wife knows or not makes no difference. But if the wife knows that it is forbidden and the husband does not, the husband is not obliged to accept the khulʿ.
Making Khulʿ for More Than What Was Received from the Husband:
According to most jurists, the husband may obtain from the wife, as consideration for khulʿ, more than what he previously gave her, because Allah said:جُنَاحَ عَلَيْهِمَا فِيمَا افْتَدَتْ بِهِ“There is no blame upon either of them concerning whatever she gives to ransom herself; khulʿ is lawful for the spouses on that basis.” (Al-Baqarah, 229) The expression “whatever” has a general meaning and includes anything, whether little or much. Al-Bayhaqi narrated from Abu Saʿid al-Khudri: “My sister was married to a woman of the Ansar. One day, both of them came to the Messenger of Allah (peace and blessings be upon him) complaining against each other. The Messenger of Allah said: ‘Will you return to him the garden he gave you?’ She said: ‘Yes, and I will give something more.’ She then gave him his garden and something additional.” (Hadith scholars have declared this hadith weak.)
Some scholars hold that it is not lawful for the husband to take more than what he gave his wife. It is narrated with an authentic chain in al-Daraqutni: “Abu al-Zubayr said: I gave her a garden as her mahr. The Messenger of Allah (peace and blessings be upon him) said to his wife: ‘Will you return to him the garden he gave you?’ She said: ‘Yes, and I will give more.’ The Messenger of Allah said: ‘You do not have to give more; give him his garden.’ The woman said: ‘All right.’ The fundamental reason for disagreement over this ruling is the dispute over whether a hadith narrated by one narrator may specify or restrict a general expression in the Qur’an. Whoever believes that it may be done says, in light of this hadith, that taking more is not permissible. Whoever believes that it may not be done holds that taking more is permissible. The book Bidayat al-Mujtahid states:
“Whoever regards the consideration for khulʿ as like the consideration in all other transactions believes that its amount is determined by mutual agreement between the two parties. Whoever takes the hadith according to its literal meaning holds that taking even a little more is unlawful. In his view, this would constitute unlawfully taking another person’s property.”
Khulʿ Without Cause:
Khulʿ is permissible only when it is requested for a valid reason, such as the husband having a physical defect or immoral character, failing to give the wife her due rights, or causing her to fear that she may be unable to observe Allah’s limits and live married life according to Allah’s laws—for example, that she may be unable to live with her husband in the good manner required of her, as indicated by the verse. Without such a reason, khulʿ is prohibited. Ahmad and al-Nasa’i narrated from Abu Hurayrah: “Women who seek khulʿ without genuine cause are hypocrites.” Scholars have deemed seeking khulʿ without cause disliked.
Khulʿ by Mutual Consent of the Husband and Wife:
Khulʿ should take place with the consent of both husband and wife. However, if the husband does not consent, the court may compel him. When Thabit and his wife went to the Messenger of Allah (peace and blessings be upon him) to resolve their dispute, the Messenger compelled Thabit to divorce her after accepting the garden.
The Wife’s Resentment Alone Is Sufficient for Khulʿ:
Al-Shawkani said: The hadiths concerning khulʿ collectively make it clear that the wife’s resentment and dissatisfaction alone are sufficient for khulʿ. Ibn al-Mundhir held that khulʿ is not permissible without resentment and dissatisfaction on the part of both. He adopted the apparent and literal meaning of the verse. Tawus, al-Shaʿbi, and a group of the Tabiʿun supported this view. Another group of the Tabiʿun, including al-Tabari and others, replied that the meaning of the verse is that when the wife fails to fulfill the husband’s rights, this becomes a cause of his resentment toward her. Thus, the resentment is attributed to the wife. When Thabit’s wife expressed resentment toward her husband, the Messenger of Allah did not ask whether Thabit felt any resentment toward his wife. This indicates that the husband’s resentment is not a consideration in this case.
It Is Forbidden to Mistreat the Wife in Order to Force Her to Seek Khulʿ:
It is forbidden for a husband to harm and abuse his wife by refusing to give her some of her rights, so that she becomes distressed and desperate and is forced to seek khulʿ. If he does this, the khulʿ is invalidated and the consideration already given must be returned, even if it was given pursuant to a court order. This has been prohibited so that the wife does not suffer the twofold harm of simultaneously losing her husband and suffering financial loss. Allah Most High said:
يأَيُّهَا الَّذِينَ آمَنُوا لَا يَحِلُّ لَكُمْ أَنْ تَرَثُوا النِّسَاءَ كَرْهًا وَ لَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا أَتَيْتُمُوهُنَّ إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُبَيِّنَةٍ
Meaning: “O believers, it is not lawful for you to inherit women against their will. Do not constrain or mistreat them in order to take back some of what you have given them.” (Surah al-Nisa’, verse 11)
وَإِنْ أَرَدْتُّ اسْتِبْدَالَ زَوْجٍ مَكَانَ زَوْجٍ لا و أَتَيْتُمْ إِحْدهُنَّ قِنْطَارًا فَلَا تَأْخُذُوا مِنْهُ شَيْئًا ، أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُّبِينًا
Meaning: “If you wish to replace one wife with another and have given one of them a great amount, do not take anything back from it. Would you take it through false accusation and manifest sin?”
Some scholars hold that although constraining and mistreating the wife is forbidden, the khulʿ will nevertheless be effective in this case. Imam Malik, however, held that the khulʿ will take effect as talaq. The husband must return the consideration he received from the wife.
Khulʿ Is Permissible Both During Purity and During Menstruation:
Khulʿ is permissible both while the woman is in a state of purity and while she is menstruating. No fixed time has been prescribed for it, because Allah prescribed no specific time for it. He said: “Khulʿ is lawful for the spouses in exchange for whatever the wife gives as ransom.” Furthermore, when the Messenger of Allah (peace and blessings be upon him) adjudicated khulʿ for Thabit’s wife, he did not inquire about her condition, although it is not unusual for women to be menstruating at any given time.
Imam al-Shafiʿi said: “The fact that no effort was made to investigate the matter, despite the possibility that circumstances might differ, shows that khulʿ may take place in every condition. The Messenger did not ask whether the woman was menstruating. What is prohibited during menstruation is talaq, so that the wife’s ʿiddah is not prolonged. Khulʿ, however, is the opposite. Here, the wife herself requests separation, seeks khulʿ, and willingly agrees to a prolonged separation.”
Khulʿ Between the Husband and a Third Party:
If a third party agrees with the husband that he will make khulʿ with his wife, and that third party promises to provide the husband with the consideration for khulʿ, the separation will take effect and the third party must provide the promised consideration. In this case, the khulʿ does not depend on the wife’s consent, because the husband has the right to issue talaq on his own initiative without his wife’s consent. The consideration is obligatory upon the person who undertook to provide it. Abu Thawr held that this is not valid because it is a stratagem: the third party is providing consideration in a matter from which he will receive no benefit. Some Maliki jurists imposed the condition that it must be intended to achieve some good or prevent some harm. If the purpose is to harm the wife, it is not valid. The book Mawahib al-Jalil states: “The third party’s payment of consideration to the husband must be intended to obtain some benefit or good for that third party, or to protect him from some harm, without intending harm to the wife.”
Khulʿ Gives the Woman Authority over Herself:
The view of most scholars, particularly the four Imams, is that when a man makes khulʿ with his wife, she gains authority over herself. Thereafter, the man cannot revoke it, because she spent money precisely to free herself from the marital bond. If the husband had the power to revoke it, there would be no point in her spending money and paying him a ransom to secure her freedom. Even if the husband returns the ransom taken from her and she accepts it, he still cannot revoke the khulʿ during the ʿiddah. This is because irrevocable talaq has taken effect through the khulʿ, and she has become separated from her husband. However, during the ʿiddah, he must return the money or property taken from her and have witnesses to the revocation. If the wife agrees, it is permissible for the husband to marry her during her ʿiddah through a new marriage contract.
Khulʿ by a Discerning Minor Girl:
According to the Hanafis, if the wife is a minor girl who nevertheless possesses the ability to distinguish benefit from harm, and her husband makes khulʿ with her, revocable talaq takes effect upon her and she is not obliged to pay any money. Talaq takes effect because the husband’s statement containing talaq is contingent upon the wife accepting its meaning. The person who issued the talaq is qualified to issue it, so making the talaq conditional is valid. What it is conditional upon is acceptance by someone qualified to accept it, and that exists here, because the capacity to accept arises from the ability to distinguish benefit from harm. Since the wife, although a minor, possesses this ability, she has the capacity to accept, and because that capacity exists, the talaq contingent upon it takes effect. She is not obliged to pay money because, being a minor, she is not qualified to make a gift. Adulthood, sound judgment, and the absence of a legal restriction on transactions due to illness or mental incapacity are conditions for the capacity to make a gift. The talaq is revocable because, since the obligation to pay money is not established, the talaq occurred without financial consideration; such talaq is revocable.
Khulʿ by a Minor Without the Ability to Distinguish Benefit from Harm:
Khulʿ by a minor wife who lacks the ability to distinguish benefit from harm does not take effect as talaq at all, because it was not accepted by someone qualified to accept talaq, even though talaq is contingent upon that acceptance.
Khulʿ by a Wife Who Is Legally Restricted from Transactions:
The jurists said that when a wife’s authority to conduct transactions is restricted because of mental incapacity, and her husband makes khulʿ with her in exchange for money and she accepts it, she is not obliged to pay that money, and revocable talaq takes effect upon her. In terms of lacking the capacity to give money, she is like a discerning minor wife. However, she is qualified to accept.
Khulʿ Between the Guardian of a Minor Wife and Her Husband:
When khulʿ takes place between the husband of a minor wife and her guardian, talaq takes effect upon her, but payment is not obligatory either upon her or upon her guardian. An example is that the husband says to the father of the minor girl: “I am making khulʿ with your daughter in exchange for her mahr, or in exchange for one hundred pounds with the consent of the wife.” The father then says, “I accept,” without undertaking responsibility for providing the consideration.
Here talaq takes effect because conditional talaq takes effect when its condition is fulfilled. The condition here was acceptance by the father or guardian, and it was fulfilled. Conversely, the wife is not obliged to pay money because she is not qualified to give it. The father is not obliged because he did not undertake this obligation; it is not imposed without acceptance. If he accepts and guarantees it, however, he must pay it. Some say that talaq does not take effect in this case, because its condition is acceptance of the consideration, which did not actually occur. This statement is outwardly sound, but the first view has continued to be followed.
Khulʿ by a Sick Woman:
There is no disagreement that khulʿ by a woman suffering from a terminal illness is valid. She may make khulʿ with her husband just as a healthy woman may. There is disagreement, however, over how much consideration she may give her husband, because she must refrain from harming her heirs in order to please her husband. Imam Malik said that this consideration may not exceed the inheritance the husband would be entitled to receive from the wife’s estate. If it exceeds that, the excess must be returned and the talaq takes effect. While the husband is healthy, there is no inheritance transaction between the two. The Hanbali view is like the Maliki view: consideration exceeding the inheritance is invalid. Al-Shafiʿi said that khulʿ is permissible for consideration equal to mahr al-mithl. If she gives more than that, it must come from one-third of the inheritance and is considered a voluntary gift. The Hanafis held that khulʿ is permissible provided that the consideration does not exceed one-third of the wife’s property; in their view, it is considered a voluntary gift. A gift made by a person suffering from a terminal illness is treated as a bequest. If a bequest is made to a non-heir, it must come from one-third; otherwise it is not effective. Because of khulʿ, the husband becomes a third party. They say that if the woman who made khulʿ dies during the ʿiddah, her husband is entitled to whichever is least among the following: the return or consideration for the khulʿ, one-third of the wife’s estate, and the husband’s total inheritance due from the wife. This is because during her terminal illness a wife may become especially attached to her husband and agree to give him a substantial amount as consideration for khulʿ, more than his inheritance entitlement. Therefore, to protect the inheritance rights of the wife’s heirs and to preserve the husband’s interests, we have said that if the wife dies during the ʿiddah, the husband receives whichever of these three is least. If she recovers from the illness and does not die, the husband receives the entire stipulated consideration, because it becomes clear that her act did not occur during a terminal illness. But if she dies after the ʿiddah ends, the husband receives the khulʿ consideration agreed upon by both parties, provided that it does not exceed one-third of her estate, because it is equivalent to a bequest.
At present in Egypt, following the enactment of the 1946 law, the practice in the courts is that the husband receives whichever is less of the khulʿ consideration and one-third of the wife’s estate, whether the wife dies during the ʿiddah or afterward. This is because the law made bequests valid for both heirs and non-heirs. Under this law, a bequest of up to one-third is effective and does not depend on anyone’s permission. Therefore, there is no need to prevent or restrain the wife from expressing affection for her husband by giving him more than the consideration to which he is entitled.
Is Khulʿ Talaq or Separation?
According to most scholars, khulʿ is irrevocable talaq. We previously mentioned a hadith in which the Messenger of Allah (peace and blessings be upon him) said: “Take the garden and divorce her.” Since in separation the husband does not regain any authority, whereas in khulʿ he does regain authority, khulʿ is not separation.
Ahmad, Dawud, Ibn Abbas, Uthman, Ibn Umar, and others held that it is separation, not talaq. Allah said in the Qur’an that talaq is twice. Then, after describing khulʿ, He said: “Then if he divorces her again, she shall not be lawful for him thereafter until she marries another husband.” (Al-Baqarah, 230) Thus, if khulʿ were talaq, the talaq after which the wife becomes lawful only after marrying another husband would be the fourth talaq.
These jurists say that separation occurs by mutual agreement, just as a sale may be rescinded by mutual agreement through iqalah.
Ibn al-Qayyim said that the proof that khulʿ is not talaq is that Allah Most High prescribed three rulings for fewer than three divorces issued after consummation, each of which is contrary to khulʿ:
– First: The husband has the power to revoke it.
– Second: It is counted as one of three divorces. Thus, once all three have been completed, she is not lawful for him until she has married another husband and had intercourse with him.
– Third: The ʿiddah is counted as three menstrual periods.
It is proven by the Qur’an, Sunnah, and consensus that khulʿ cannot be revoked. It is also proven from the Sunnah and the statements of the Companions that its ʿiddah is only one menstrual period; in the case of divorce, it would be three menstrual periods. It is also known from the Qur’an and hadith that khulʿ is permissible after two divorces and even after a third divorce. This makes it clear that khulʿ is not divorce. The consequence of this disagreement becomes clear from the ʿiddah of divorce. Those who consider khulʿ to be divorce count it as one irrevocable divorce, while those who regard it merely as separation do not count it as an irrevocable divorce. If a man divorces his wife twice, then performs khulʿ, and later wishes to marry her again, this is permissible. She does not need to marry another husband first, because only two divorces have occurred here, and khulʿ is not divorce. According to those who count khulʿ as divorce, however, it would not be permissible for him to marry her again until she had married another husband and lived with him, since khulʿ would have completed the three divorces.
Can a woman who has undergone khulʿ be divorced?
A woman who has undergone khulʿ cannot thereafter be divorced, whether we regard khulʿ as divorce or as separation. In either case, the woman becomes a non-wife with respect to her husband, and a non-wife cannot be divorced. Abu Hanifah, however, says that divorce can also take effect upon a woman who has undergone khulʿ. Accordingly, he holds that it is not permissible to marry her sister even after separation through khulʿ.
The ʿIddah of a Woman Who Has Undergone Khulʿ:
It is established from the Sunnah that the ʿiddah after khulʿ is one menstrual period. In the case of Thabit, the Messenger said to him: “Take from her what is due to you and set her free.” Thabit said, “All right.” The Messenger then ordered his wife to observe an ʿiddah of one menstrual period and then go to her father’s home. (Al-Nasa’i)
This was the view of ʿUthman, Ibn ʿAbbas, Ahmad, Ishaq ibn Rahwayh, and Ibn Taymiyyah. Ibn Taymiyyah said: “Whoever reflects on this view will see that it is the one sanctioned by the Shariʿah. The ʿiddah was made three menstrual periods so that there would be a longer period in which revocation could occur. The husband may reconsider and revoke the divorce during the ʿiddah. If revocation does not occur, the purpose is to free the womb of any pregnancy. In that case, one menstrual period is sufficient as the ʿiddah.”
Ibn al-Qayyim said: “This was the view of the Commander of the Believers ʿUthman, ʿAbdullah ibn ʿUmar, al-Rubayyiʿ bint Muʿawwidh, and her uncle, who was a distinguished Companion. It is not known that anyone disagreed with these four Companions. Nafiʿ narrated that he heard al-Rubayyiʿ bint Muʿawwidh tell ʿAbdullah ibn ʿUmar that she had undergone khulʿ from her husband during the caliphate of ʿUthman ibn ʿAffan. Then her uncle went to ʿUthman (may Allah be pleased with him) and said: ‘The daughter of Muʿawwidh has undergone khulʿ from her husband today. Should she leave her husband’s home?’ ʿUthman replied: ‘Certainly. Moreover, neither of them will inherit from the other, and the woman need not observe an ʿiddah, except that she may not marry until one menstrual period has passed, because she may be pregnant.’ ʿAbdullah ibn ʿUmar then said: ‘ʿUthman (may Allah be pleased with him) is the best and most knowledgeable of us all.’ It is stated in the book Al-Nasikh wal-Mansukh that this was the unanimous view of the Companions. However, according to most scholars, if the woman is of menstruating age, her ʿiddah is three menstrual periods.”
The Husband’s Harsh Treatment
If a wife fears ill-treatment or neglect from her husband because of her illness, old age, or unattractive appearance, there is no sin if the two of them reach a mutually agreed settlement. If such a settlement requires the wife to relinquish some of her rights, she may do so. Allah says:
وَإِنِ امْرَأَةٌ خَافَتْ مِنْ بَعْلِهَا نُشُوزًا أَوْ إِعْرَاضًا فَلَا جُنَاحَ عَلَيْهِمَا أَنْ يُصْلِهَا بَيْنَهُمَا مُلْحَاطَ وَالصُّلْحُ خَيْرٌ
Meaning: If a woman fears ill-treatment or neglect from her husband, there is no sin upon them if they reach a settlement between themselves. Indeed, settlement is best.” (Surah al-Nisa’, verse 128)
It is narrated in Bukhari that ʿA’ishah (may Allah be pleased with her) said regarding this verse: “This refers to a woman who remains with her husband, while he does not desire much companionship with her, then wishes to divorce her and marry another woman while she is still his wife. She says: ‘Keep me as your wife and do not divorce me; marry another woman while I remain your wife. You may divide my maintenance and my turn with me as you wish.’” Abu Dawud narrated from ʿA’ishah (may Allah be pleased with her): When the Mother of the Believers Sawdah bint Zamʿah grew old and feared that the Messenger (peace and blessings be upon him) might separate from her, she said: “O Messenger of Allah, I give my day to ʿA’ishah.” The Messenger accepted this proposal. ʿA’ishah said that it was concerning this incident that Allah revealed: “If a woman fears neglect from her husband…”
It is stated in Al-Mughni: If a wife relinquishes all or part of her maintenance or her allotted turn by agreement with her husband, that is permissible. If she later withdraws this concession, she may do so.
Regarding a husband who stays away from his wife, Ahmad said: If the husband tells her, “It is fine if you accept my absence; otherwise, you know best what you should do,” and she says, “I accept it,” that is permissible. If she later withdraws her consent, she may do so.
Discord Between Husband and Wife:
When discord arises between husband and wife, hostility becomes intense, separation is feared, and married life faces breakdown, the responsible ruler should send two arbitrators to investigate their situation. If preserving their marriage is beneficial, they should do that; and if separation is beneficial, they should do that. Allah says:
وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا فَابْعَثُوا حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَا جِ
“If you fear a breach between them, appoint one arbitrator from his family and one arbitrator from hers.” The two arbitrators must be sane, adults, just, and Muslim. They do not necessarily have to be members of the two families; it is valid for them to be outsiders. The command form used in the verse is intended to indicate recommendation. A family member is more familiar with the ongoing circumstances and more sympathetic toward the couple. The two arbitrators may decide whichever of the two options—preserving the marriage or ending it—they deem beneficial, without waiting for the couple’s consent or authorization. This was the view of ʿAli, Ibn ʿAbbas, Abu Salamah, al-Shaʿbi, al-Nakhaʿi, Saʿid ibn Jubayr, Malik, al-Awzaʿi, Ishaq, and Ibn al-Mundhir. (The wife’s misconduct was discussed earlier.)
Chapter Twelve: Zihar
Definition
The word zihar comes from zahr, meaning “back.” Zihar is when a husband says to his wife: “You are to me like my mother’s back” (anti ʿalayya kazahri ummi). Fath al-Bari states that the back alone is mentioned, rather than other parts of the body, because people principally ride upon the back, and it is the woman whom the man rides. Thus the wife is compared to the back. In the pre-Islamic era, zihar was treated as divorce. Islam abolished this practice. However, the wife remains prohibited to the husband because of zihar until he offers the expiation. If the husband makes zihar with the intention of divorce, it is still zihar; and if he divorces with the intention of zihar, it is divorce. If someone says to his wife, “You are to me like my mother’s back,” intending divorce by it, it is not divorce; it is zihar, which does not effect divorce.
Ibn al-Qayyim said: “The reason is that in the pre-Islamic era zihar was synonymous with divorce, so it was abrogated. Therefore, what has been abolished cannot be reinstated. Although the Companion Aws ibn Samit made zihar intending divorce, the ruling of zihar, not divorce, applied to him. Moreover, the ruling concerning zihar is very clear. Thus there is no question of accepting zihar as an indirect expression for the practice that Allah abolished through His ruling. Allah’s ruling takes precedence, and Allah’s command is paramount.”
The scholars unanimously consider zihar forbidden. Therefore, zihar is not permissible, because Allah says:
الَّذِينَ يُظْهِرُونَ مِنْكُم مِّن نِّسَائِهِمْ مَا هُنَّ أُمَّهَتِهِمْ إِنْ أَمَّمْتُهُمْ إِلَّا الَّتِي وَلَدْنَهُمْ وَانَّهُمْ لَيَقُولُونَ مُنْكَرًا مِّنَ الْقَوْلِ وَزُورًا ، وَإِنَّ اللَّهَ لَعَفُو غَفُورٌ
Meaning: Those among you who declare their wives to be like their mothers—their wives are not their mothers. Their mothers are only those who gave birth to them. Indeed, they utter an objectionable and false statement. And Allah is Pardoning, Forgiving. (Surah al-Mujadilah, verse 2)
The occasion of revelation was the hadith concerning Aws ibn Samit. He made zihar against his wife, Khawlah bint Malik. She was the woman who argued with the Messenger (peace and blessings be upon him) about this zihar and pleaded with Allah, while Allah heard her complaint from above the seven heavens. Khawlah said: “O Messenger of Allah, Aws ibn Samit married me when I was young and attractive. Later, when I grew older and my belly became large, he declared me to be like his mother.” The Messenger said: “I have received no instruction concerning your case.” Khawlah said: “O Allah, I complain to You.” Some narrations state that Khawlah said: “I have several young children. If Aws takes them, they will perish; and if I take them, they will suffer from hunger.” Immediately afterward, the beginning of Surah al-Mujadilah was revealed concerning this matter. ʿA’ishah (may Allah be pleased with her) said: “Praise be to Allah, whose hearing encompasses all voices. Khawlah came to the Messenger to complain, and I was inside the house; I could not hear some of what she said. Then Allah revealed: ”
قَدْ سَمِعَ اللهُ قَوْلَ الَّتِي تُجَادِلُكَ فِي زَوْجِهَا وَتَشْتَكِي إِلَى اللَّهِ وَاللَّهُ يَسْمَعُ تَعَاوُرَكُمَا إِنَّ اللَّهَ سَمِيعٌ بَصِيرَه
Meaning: Allah has certainly heard the words of the woman who was arguing with you concerning her husband and pleading to Allah. Allah was hearing the conversation between you both. Indeed, Allah is All-Hearing, All-Seeing. (Surah al-Mujadilah, verse 1)
The Messenger (peace and blessings be upon him) told Khawlah: “Let Aws free a slave.” Khawlah said: “He cannot afford that.” The Messenger said: “Then let him fast two consecutive months.” Khawlah said: “O Messenger of Allah, he is extremely old and unable to fast.” The Messenger said: “Then let him feed sixty poor people.” Khawlah said: “He has nothing with which to give charity.” He said: “I will assist him with a basket of dates.” Khawlah said: “I will assist him with another basket.” The Messenger said: “Very well. On his behalf, feed sixty needy people, then return to your cousin (your husband).”
It is recorded in the hadith collections that Salamah ibn Sakhr al-Bayadi made zihar against his wife during Ramadan, then had intercourse with her on the night before Ramadan ended. The Messenger (peace and blessings be upon him) said to Salamah: “You are responsible for this wrong.” Salamah said: “Am I responsible?”—twice—“Very well, I am ready to obey Allah’s command. So instruct me as Allah directs you.”
The Messenger said: “Set a slave free.” Salamah said: “By Allah, I have no one under my authority whom I can free apart from that wife.” The Messenger said: “Then fast for two consecutive, uninterrupted months.” Salamah said: “I committed the offense while fasting.” The Messenger said: “Then give sixty needy people one wasaq of dates each.” Salamah said: “By Allah, we are completely destitute; we have no food.” The Messenger said: “Go to the tribe of Banu Zurayq. They will give you their zakat. Give sixty needy people one wasaq of dates each from it, then eat whatever remains with your family.” Salamah said: “I then went to my people and told them: ‘I found only narrow-mindedness and bad judgment among you, but I found generosity and sound judgment with the Messenger of Allah. He ordered me to give me your zakat.’”
Is Zihar Restricted to the Mother?
Most scholars hold that zihar is restricted to the mother. This is also what is known from the Qur’an and hadith. Thus, if someone says to his wife, “You are to me like my mother’s back” (that is, as pure as my mother), it is zihar. But if he says, “You are to me like my sister’s back,” it is not zihar. According to the Hanafis, al-Awzaʿi, al-Thawri, al-Shafiʿi, and Zayd ibn ʿAli, by analogy with the mother, all women permanently forbidden to him are included under zihar. In their view, zihar is the husband’s declaring his wife similar or equivalent to women who are permanently forbidden to him, whether due to blood relationship, marriage relationship, or breastfeeding relationship. The effective cause is permanent prohibition. However, if someone says to his wife merely as an expression of honor or respect, “She is my mother or sister,” it is not zihar.
Conditions of Zihar:
For zihar, it is essential that the husband be Muslim, an adult, and sane, and that the woman have acquired the status of wife through a valid marriage.
Temporary Zihar:
Zihar made against a wife for a specified period is temporary zihar. An example is saying to one’s wife: “You are to me like my mother’s back until nightfall.” If he has intercourse before that period ends, it is zihar and expiation is required. Malik and Ibn Abi Layla hold that expiation is required even without intercourse. Most scholars, however, hold that expiation is unnecessary if intercourse does not occur. One of the two views reported from al-Shafiʿi is that temporary zihar is not zihar.
Consequences of Zihar:
When a husband validly makes zihar against his wife, it has two consequences. First, intercourse with his wife is forbidden until he offers the expiation for zihar, because Allah says: “Expiation must be offered before the two have intercourse.” Since intercourse is forbidden, acts that lead to intercourse, such as kissing and embracing, are also forbidden. This is the view of most scholars. Al-Thawri and al-Shafiʿi hold that only intercourse is forbidden.
Second, expiation becomes obligatory if he wishes to revoke the zihar. There is disagreement concerning the meaning of this revocation. Qatadah, Saʿid ibn Jubayr, Abu Hanifah, and his students say that intending intercourse with the wife prohibited by zihar constitutes revocation of zihar. By merely forming this intention, he has withdrawn from his zihar declaration and desired intercourse, whether he actually does so or not.
Al-Shafiʿi says: Revocation means keeping the wife after zihar for a period during which divorce could be pronounced, without divorcing her. Declaring one’s wife to be like one’s mother implies sending her away permanently; retaining her is completely contrary to zihar. Therefore, by retaining her, he is considered to have withdrawn what he said, since revoking a statement means acting contrary to it. Imam Malik and Ahmad say that revocation means intending intercourse, whether he actually does so or not.
Dawud, Shuʿbah, and the imams of the Zahiri school said: No expiation is required for zihar the first time; expiation becomes necessary when zihar is made a second time.
Intercourse with the Wife Before Expiation:
Intercourse with one’s wife before offering the expiation is forbidden. The expiation is neither cancelled nor increased; rather, it remains one expiation. Sanan ibn Dinar said: I asked ten jurists what happens if a man who has made zihar has intercourse before offering the expiation. They said: He must offer only one expiation.
Expiation for Zihar:
The expiation for zihar is to free a slave; if that is not possible, to fast for two consecutive months; and if that is not possible, to feed sixty needy people. Allah says:
وَالَّذِينَ يُظْهِرُونَ مِنْ نِسَائِهِمْ ثُمَّ يَعُودُونَ لِمَا قَالُوا فَتَحْرِيرُ رَقَبَةٍ مِّنْ قَبْلِ أَنْ يَتَمَاسًا ، ذَلِكُمْ تُوعَظُونَ بِهِ ، وَاللَّهُ بِمَا تَعْمَلُونَ خَبِيرٌ فَمَنْ لَمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ مِنْ قَبْلِ أَنْ يَتَمَاسًا ، فَمَنْ لَمْ يَسْتَطِعْ فَاطْعَامُ سِتِّينَ مِسْكِينًا ،
Meaning: Those who make zihar against their wives and then wish to retract what they have said must free a slave before the two have intercourse. This is an admonition for you, and Allah is aware of what you do. Whoever cannot do so must fast two consecutive months before the two have intercourse. Whoever is unable to do that must feed sixty needy people. (Surah al-Mujadilah, verses 3–4)
Severe language is used regarding the expiation for zihar. Its purpose is to protect the marriage and prevent both forms of injustice against the wife. When the husband sees that offering the expiation is difficult for him, he will respect the marital relationship and refrain from wronging his wife.
Chapter Thirteen: Matters Concerning Annulment of Marriage
Annulment of a marriage contract means its termination and the severing of the marital relationship. A marriage may be annulled if there is a serious defect in the marriage contract or if a circumstance arises that makes its continuation impossible.
Examples of annulment due to a defect in the contract include: 1. After the contract is completed, it is established that the wife he married is his milk-sister. 2. A guardian other than the father or grandfather marries off a minor boy or girl, and then the boy or girl reaches adulthood. In this case, each of them has the choice of upholding or annulling that marriage. If he or she chooses annulment, the marriage is annulled.
Examples of annulment due to an unforeseen occurrence include: 1. If either the husband or wife leaves Islam and does not return to Islam, the marriage is annulled because of apostasy. 2. If the husband accepts Islam but his polytheist wife does not, the marriage is annulled. However, if the wife is Jewish or Christian, the marriage remains valid even if she does not become Muslim, because marriage between a Muslim man and a Jewish or Christian woman is fundamentally lawful.
The separation between husband and wife resulting from annulment differs from separation caused by divorce. Divorce is of two types: revocable and irrevocable. Revocable divorce does not immediately terminate the marital relationship, whereas irrevocable divorce ends it immediately. Annulment, on the other hand, immediately terminates the marriage, whether it results from an unforeseen event after marriage or from a defect in the marriage. Separation through divorce reduces the number of divorces available. For example, if a husband gives his wife a revocable divorce, then revokes it during her ʿiddah and restores the relationship, or marries her through a new contract after her ʿiddah ends, that divorce still counts as a divorce, and thereafter he may give her only two more divorces. Separation through annulment, however, does not reduce the number of divorces. If someone annuls his marriage after reaching adulthood and the two later marry again, the husband will thereafter have the right to issue three divorces. To distinguish between these two types of separation, the jurists formulated a principle: A separation initiated by the husband and impossible for the wife to initiate is divorce. A separation initiated by the wife, in which the husband has no role, or one initiated by the husband but also possible for the wife to initiate, is separation resulting from annulment.
Annulment of Marriage by the Court:
There are cases in which the reason for annulment is so clear that no court judgment is necessary. When a husband and wife learn that they are milk-siblings, it becomes obligatory for both of them to annul the marriage on their own initiative.
In some cases, however, the reason for annulment is unknown or unclear. A court judgment is then necessary, and the matter remains suspended until the judgment is issued. For example, if the husband accepts Islam but his polytheist wife does not, the annulment remains suspended. If the wife accepts Islam, the marriage will not be annulled.
Chapter Fourteen: Liʿan
Definition:
Liʿan derives from the word laʿn, or cursing. This is because, in the fifth oath, the person performing liʿan swears: “If he (the husband) is lying, then Allah’s curse be upon him.” According to some, liʿan means to remove or banish. The first reason the husband and wife who curse one another are called those who perform liʿan, or those who banish one another, is that liʿan necessarily causes each to withdraw from or be banished from the other. The second reason is that it is certain that one of the two is lying, and every liar is accursed or subject to laʿn. Some say there is another reason: each banishes the other by declaring the other permanently forbidden to them.
The Nature of Liʿan:
When a husband accuses his wife of adultery, he first swears four times that he is telling the truth. The fifth time he says: “If I have made a false accusation, then Allah’s curse be upon me.” If the wife wishes to deny his accusation, she first says four times: “By Allah, he (her husband) is a liar.” On the fifth occasion she says: “If what he (the husband) has alleged is true, then Allah’s wrath be upon me.”
The Shariʿah Ruling Concerning Liʿan:
If a husband accuses his wife of adultery, she denies it, and he persists in his accusation, Allah has prescribed li’an for that couple. (This ruling was revealed in Sha’ban of the ninth year after the Hijrah; according to another opinion, it was revealed in the year in which the Messenger of Allah, peace and blessings be upon him, died.)
Al-Bukhari narrates from Ibn Abbas, may Allah be pleased with him: Hilal ibn Umayyah, the first person to perform li’an in Islam, complained to the Messenger of Allah, peace and blessings be upon him, that his wife had committed adultery with Shurayk ibn Sahma. The Messenger of Allah immediately said: “You must produce witnesses, otherwise eighty lashes will be inflicted on your back for false accusation.” Hilal said: “O Messenger of Allah, when one of us sees another man upon his wife with his own eyes, must he still go around looking for witnesses?” The Messenger of Allah repeated the same reply: “Produce witnesses, otherwise punishment will be inflicted on your back.”
Hilal said: “By the One who sent you with the true religion, I am speaking the truth. I am certain that Allah will reveal revelation and thereby save my back from punishment.” Immediately afterward, Gabriel descended and Allah revealed these words to the Messenger of Allah, peace and blessings be upon him:
وَالَّذِينَ يَرْمُونَ أَزْوَاجَهُمْ وَلَمْ يَكُنْ لَهُمْ شُهَدَاء إِلَّا أَنْفُسُهُمْ فَشَادَةً أَحَدِهِرْ أَرْبَعُ شَمَاتِ بِاللَّهِ لا إِنَّهُ لَمِنَ الصَّدِقِينَ وَالْخَامِسَةُ أَنْ لَعْنَتَ اللَّهِ عَلَيْهِ إِنْ كَانَ مِنَ الْكَذِبِينَ وَيَدْرُوا عَنْهَا الْعَذَابَ أَنْ تَشْهَدَ أَرْبَعَ شَمَاتِ بِاللَّهِ لا إِنَّهُ لَمِنَ الْكُذِبِينَ وَالْخَامِسَةَ أَنْ غَضَبَ اللَّهِ عَلَيْهَا إِنْ كَانَ مِنَ الصَّدِقِينَ
Meaning: Those who accuse their wives of adultery and have no witnesses except themselves shall testify four times, swearing by Allah that he is telling the truth. The fifth time they shall say that Allah’s curse be upon him if he is lying. The wife shall be spared punishment if she testifies four times, swearing by Allah that he is a liar, and the fifth time says that Allah’s wrath be upon her if he is telling the truth.” (Surah al-Nur: 6–9)
Then the Messenger of Allah, peace and blessings be upon him, turned toward the woman. Hilal came and testified. The Messenger of Allah was still saying: “One of you is certainly lying. Will either of you repent?” Then the woman testified. When it was time for the fifth testimony, the people stopped her and said: “Now the judgment will become binding.” Ibn Abbas, may Allah be pleased with him, said: At that point the woman hesitated and drew back. Seeing this, we thought that she might refrain from taking the oath. But she immediately said: “I will not bring disgrace upon my people.” Then she took the oath and testified as required. (That is, no conclusion can be drawn merely from hesitation.)
The Messenger of Allah, peace and blessings be upon him, said: “Observe this woman. If she gives birth to a child whose eyelashes are black like kohl, whose buttocks are large, and whose ankles are fleshy, then it will be understood that the child belongs to Shurayk.” When she gave birth, the child had those characteristics. (That is, it was as the Messenger of Allah had described, showing that the woman had been pregnant.)
The Messenger of Allah, peace and blessings be upon him, then said: “Had there not been a ruling in the Book of Allah, my situation with this woman would have been different.” (That is, since li’an annuls the punishment for adultery, had this ruling not been given in the Qur’an, the Messenger of Allah would have enforced the punishment for adultery upon her.)
The author of Bidayat al-Mujtahid says: Under normal circumstances, the bed is established as the standard for determining lineage. But when a violation is certain, it becomes necessary to find a means of disregarding the bed as the standard for determining lineage. That means is li’an. Indeed, in the light of the Qur’an, Sunnah, ijma’ and qiyas, li’an is an established and authoritative system. There is no general disagreement concerning it.
When is li’an performed?
Li’an becomes necessary in two circumstances:
1. When the husband accuses his wife of adultery but does not have the four required witnesses apart from himself to support his accusation.
2. When the husband refuses to acknowledge the child born to his wife as his own offspring.
In the first case, li’an is legally valid only when the husband is certain that his wife has committed adultery—for example, when he has seen her commit it, or when she has confessed and he has become firmly convinced of its truth. In such a case, simply divorcing her without performing li’an is preferable. But if he is not certain about the adultery, it is not permissible to accuse his wife of it. If he denies the pregnancy, li’an is permissible only when the husband claims that he has not had intercourse with her even once since the marriage, or claims that she gave birth less than six months after intercourse or more than one year afterward.
Only the official or recognized judge shall decide the matter of li’an:
The presence of the ruler’s representative is essential in li’an. Before proceeding, it is his duty to advise the wife. The representative’s advice should be like the hadith narrated by Abu Dawud, al-Nasa’i and Ibn Majah: “Any woman who brings into a family a child who is not from that family has no connection with Allah, and Allah will never admit her into Paradise. And any man who denies his child while knowing that it is his own offspring—on the Day of Resurrection Allah will conceal Himself from him and disgrace him before all earlier and later peoples.”
Conditions of li’an:
Just as the presence of the ruler or his representative is required for li’an, both husband and wife must be of sound mind and adults. This is the unanimous position of the jurists.
Can li’an be performed after witnesses are found?
If the husband produces witnesses to the adultery, then according to Abu Hanifah and Dawud, li’an is not permissible, because li’an is a substitute for witnesses. Allah says: “Those who accuse their wives of adultery and have no witnesses except themselves…” Imam Malik and al-Shafi’i hold that li’an may still be performed, because witnesses have no effect on the establishment of the child’s lineage through the bed.
Is li’an testimony or an oath?
According to Imam Malik, al-Shafi’i and most scholars, li’an is an oath, although it is called shahadah, or testimony. This is because no one gives testimony on his own behalf. In some narrations of the hadith of Ibn Abbas mentioned earlier, the Messenger, peace and blessings be upon him, said: “Had the woman not taken the oath, my situation with her would have been different.”
According to Abu Hanifah and his disciples, it is testimony. They infer this from the Qur’anic statement: “Then the testimony of one of them shall be four testimonies by Allah.” The hadith of Ibn Abbas also states: “Then Hilal came and testified, and afterward the woman stood and testified.” Those who say it is an oath hold that li’an is valid between any husband and wife, whether they are free or enslaved, whether one is free and the other enslaved, and whether both are upright or immoral, or one is upright and the other immoral. Those who say it is testimony hold that li’an is not valid unless both are qualified to testify—that is, free Muslims. Li’an is not valid for enslaved spouses or for those who have received the punishment for falsely accusing someone of adultery. Nor is it valid when one party is qualified to testify and the other is not.
Ibn al-Qayyim said: The correct position is that li’an is both testimony and an oath. Just as the testimony is reinforced by the oath and by repetition, the oath is strengthened by repetition and by using the wording of testimony. The circumstances here require strengthening the matter. Therefore, it contains ten elements that increase its force:
1. Mentioning the words “to testify.”
2. Swearing by Allah.
3.لام ان using lam al-tawkid and strengthening the statement following the oath by using the adjectives “truthful” and “lying” instead of the verbs “spoke the truth” and “lied” (صدق وكذب). In place of the verbal forms, صادق وكاذب the adjectives “truthful and lying” are used to reinforce the statement following the oath.
4. Repeating the oath four times.
5. In the fifth instance, the husband invokes a curse upon himself, saying that Allah’s curse should be upon him if he is lying.
6. In the fifth instance, the husband declares that this makes Allah’s punishment unavoidable, and that worldly punishment is far less painful than punishment in the Hereafter.
7. Informing both parties that the husband’s li’an makes the wife’s punishment or imprisonment unavoidable, while the wife’s li’an removes her punishment.
8. Li’an makes the punishment of either the husband or wife inevitable, whether in this world or the Hereafter.
9. Li’an separates the husband and wife and destroys their household.
10. This separation lasts forever, and they become prohibited to each other.
Because of this grievous consequence of li’an, the oath has been joined to testimony and testimony to the oath, and the husband performing li’an has been made equivalent to one witness. If the wife then withdraws from li’an, the husband’s testimony takes effect, the prescribed punishment for adultery is enforced upon the wife, and the husband’s testimony becomes effective. The necessary consequence of the husband’s oath is that punishment is removed from him and imposed upon the wife. If the wife performs li’an and makes a counter-li’an against the husband’s li’an, the husband’s li’an removes punishment from him but does not impose it upon the wife. In this case, the husband’s li’an is both testimony and an oath for him, but not for her. If li’an were only an oath, the wife could not be punished merely by the husband’s oath; and if it were testimony, she could not be punished by the testimony of one man alone. Thus, when the wife’s withdrawal is added, the husband’s testimony and oath are strengthened by his emphatic accusation and her withdrawal. Clear proof of the husband’s truthfulness thereby emerges. Punishment is therefore removed from him and made binding upon the wife. This is the finest judgment. For this reason Allah says:
وَمَنْ أَحْسَنَ مِنَ اللَّهِ حُكْمًا لِقَوْمٍ يُوقِنُونَ
“Who is a better judge than Allah for people who have certainty?” (Al-Ma’idah: 50) This also makes clear that li’an is an oath in one sense, but carries the meaning of testimony; and it is testimony in one sense, but carries the meaning of an oath.
Li’an by the blind and the mute:
The li’an of a blind person is unanimously valid. There is disagreement concerning the li’an of a mute person. Imam Malik and al-Shafi’i hold that it is valid if the mute person’s intended meaning is conveyed. Abu Hanifah says it is not valid, because a mute person is not qualified to give testimony.
Who performs li’an first?
The scholars unanimously hold that it is Sunnah for the man to testify before the woman in li’an. They disagree over whether this is obligatory. Al-Shafi’i and others hold that it is obligatory, and that li’an is not accepted if the wife begins before the husband. Their reasoning is that li’an was instituted in the Shariah to remove punishment from the man. If the wife begins it, there is no evidence supporting the removal of the punishment that would thereby be removed. Abu Hanifah and Malik hold that it is valid and accepted if the wife begins. Their reasoning is that Allah connected the li’an of the husband and wife in the Qur’an with “and,” which does not require sequence; it merely indicates that both must perform li’an.
Refraining from or withdrawing from li’an:
Either the husband or the wife may withdraw from li’an. If the husband withdraws, the punishment for false accusation, hadd al-qadhf, will be imposed upon him. Allah says: “Those who accuse their wives of adultery and have no witnesses except themselves—the testimony of one of them shall be to testify four times, swearing by Allah, that he is telling the truth.” (Surah al-Nur, verse 6) This proves that when he does not give four such testimonies under oath, he is like any third person who makes an accusation. The hadith of the Messenger, peace and blessings be upon him, cited earlier states: “Produce witnesses, otherwise punishment will fall upon your back.” (That is, eighty lashes as punishment for false accusation.) This is the position of the three Imams.
But Abu Hanifah says: The husband will not be given the punishment for false accusation; rather, he will be detained until he performs li’an or declares himself a liar. If he admits that he is lying, he will receive the punishment for false accusation. When the wife withdraws from li’an, Malik and al-Shafi’i hold that the punishment for adultery will be enforced upon her. Abu Hanifah says: She cannot be punished for adultery merely because she withdraws; rather, she will be imprisoned until she either performs li’an or acknowledges that the husband’s accusation is true. If she confesses, she will be given the punishment for adultery.
Abu Hanifah’s proof is that the Messenger of Allah, peace and blessings be upon him, said: “The blood of a Muslim is not lawful except for one of three offenses: adultery after marriage, disbelief after faith, or killing someone who is liable to be killed.” Moreover, the Shariah does not permit taking a life merely because someone refuses to swear an oath. Since many jurists do not consider it necessary to impose a financial penalty on someone for refusing to take an oath, taking a life for that reason is even more out of the question.
Ibn Rushd said: In short, the fundamental principle concerning the taking of life in the Shariah is that no one’s life may be taken without conclusive proof or confession. Therefore, Abu Hanifah is correct on this ruling, and Imam al-Shafi’i also acknowledged the strength of Abu Hanifah’s position in this matter in the book Al-Burhan.
Separation between the husband and wife who perform li’an:
When both husband and wife perform li’an, an irrevocable separation occurs between them. Their separation never ends under any circumstances. It is narrated from Ibn Abbas, may Allah be pleased with him, that the Messenger of Allah, peace and blessings be upon him, said: After separation occurs between a husband and wife who perform li’an, they can never come together again. Ali and Ibn Mas’ud, may Allah be pleased with them, said: The Sunnah has continued that a husband and wife who perform li’an will never reunite. —Al-Daraqutni
Moreover, because such hatred and hostility have arisen between them that permanent separation has become unavoidable, and the mutual affection, love and tranquility regarded as the foundation of married life have been destroyed, the Shariah has decreed permanent separation for them. If the husband later admits that he was lying, the jurists disagree. According to the majority, they can never reunite, and the hadiths cited earlier support this. Abu Hanifah says: If he admits that he lied, he will be flogged as punishment for false accusation, but he may marry that woman again. Abu Hanifah’s reasoning is that when he admits he was lying, li’an becomes void. In that case, he is recognized as the child’s father and the wife is returned to him, because the original reason for the prohibition was the uncertainty created by one of them being truthful and the other a liar. Once the reality becomes known, neither remains prohibited to the other.
When does the separation occur?
According to Imam Malik, separation occurs the moment the husband and wife complete li’an against each other. According to al-Shafi’i, separation occurs as soon as the husband completes li’an. But according to Abu Hanifah, Ahmad and al-Thawri, separation occurs only when the ruler issues a judgment of separation, not before.
Is separation caused by li’an a divorce or dissolution of the marriage?
According to most scholars, separation caused by li’an is not divorce but dissolution of the marriage. According to Abu Hanifah, it is an irrevocable divorce, because it originates from the man and cannot be attributed to the woman. Any separation of this kind is divorce, not dissolution of the marriage. The separation here resembles the separation of a eunuch when it occurs by the ruler’s judgment.
Those who adopt the first position prove it by the fact that the two become permanently prohibited to each other. The wife is thereby treated like women who are permanently prohibited. They hold that dissolution of the marriage through li’an does not entitle the wife to accommodation or maintenance from the husband during her iddah, because these rights apply during the iddah of divorce, not during the iddah of marriage dissolution. Supporting this is the hadith narrated by Ibn Abbas: In a case of li’an, the Messenger of Allah, peace and blessings be upon him, declared that the wife would receive neither maintenance nor housing, because separation had occurred between them without divorce or death. (Ahmad, Abu Dawud)
Assigning the child to and affiliating the child with the mother:
When the husband denies his child and li’an occurs because of that denial, the child’s lineage is not attributed to the father. The child is not entitled to maintenance from him, and mutual inheritance between them is annulled. The child is assigned to and affiliated with the mother; the mother inherits from the child and the child inherits from the mother. Amr ibn Shu’ayb narrated from his grandfather that the Messenger of Allah, peace and blessings be upon him, judged concerning the child of a couple who performed li’an that the child would inherit from the mother and the mother from the child. Whoever accused the child’s mother of adultery because of that child would receive eighty lashes. —Ahmad. This is supported by the evidence stating that the child belongs to the owner of the bed. Here, however, the bed has no force because the husband denied the child. Whoever accuses the wife of adultery is considered a false accuser and deserves eighty lashes, because li’an concerns married women, and there is no proof of adultery against the woman. Thus, whoever accuses her of adultery because of her child must receive hadd al-qadhf, the punishment for false accusation. The one who accuses the wife and the one who accuses the child are equal in this respect. This concerns the ruling related to the husband. But under Allah’s general ruling concerning all people, the child will, as a precaution, be treated as the husband’s child. Therefore, he may not give the child zakat, and if the child kills him, retaliation will not be imposed upon the child. Marriage to his children will remain prohibited, and mutual testimony between them will not be valid. The child will not be regarded as without lineage, nor may anyone else claim to be his father. If the husband admits that he was lying, his paternity of the child will be established, and li’an will have no effect upon the child.
Chapter Fifteen: Iddah
1. Definition of iddah:
The word iddah comes from al-‘add, meaning number and counting. The days and menstrual cycles that a woman counts are called iddah. Iddah is the period that a wife waits to complete and during which, after her husband’s death or separation from him, she refrains from marrying another husband. Iddah begins at the time of divorce or the husband’s death. Iddah was also practiced in the Age of Ignorance, and almost everyone observed it. Islam retained it because it contains many benefits and advantages. The scholars declared it obligatory in light of the following verse:
والمُطلقت يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ ثَلثَةَ قُرُوءٍ
“Divorced women shall wait by themselves for three menstrual cycles.” (Al-Baqarah, 228) Furthermore, the Messenger of Allah, peace and blessings be upon him, told the divorced Fatimah bint Qays: “Observe your iddah in the house of Umm Maktum.”
2. The rationale for iddah in the Shariah:
a. To ascertain whether the womb is free of a fetus, so that confusion does not arise concerning the child’s lineage.
b. To give the husband and wife an opportunity to restore their marital relationship if they wish to do so for their greater welfare.
c. To convey that marriage is a dignified matter, difficult to establish and requiring a long time to dissolve. Otherwise, it would become a child’s game, joined in an instant and separated in an instant.
d. Marriage has no true purpose unless both husband and wife firmly resolve to make this contract lasting. Yet if something occurs that makes separation in married life unavoidable, a period of waiting becomes essential to preserve the relationship as far as possible. During that period, the wife must wait while enduring considerable hardship. (Hujjat Allah al-Balighah)
3. Categories of iddah:
Iddah is of several types:
1. The iddah of a menstruating woman, which is three menstrual cycles.
2. The iddah of a woman who has passed the age of menstruation, which is three months.
3. The iddah of a woman whose husband has died, which is four months and ten days if she is not pregnant.
4. The iddah of a pregnant woman, which lasts until childbirth.
This is a brief description of iddah. We now give the details: a wife may be in one of two situations—intercourse has taken place, or it has not.
The iddah of a wife with whom intercourse has not taken place:
If a wife with whom intercourse has not taken place is divorced, she is not required to observe any iddah. Allah says:
يَأَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُونَهَا
Meaning: O believers, when you marry believing women and then divorce them before touching them, you have no iddah for them to observe.” (Surah al-Ahzab: 49)
If the husband of a wife with whom intercourse has not taken place dies, she must observe iddah just like a wife with whom intercourse has taken place, because Allah says:
وَالَّذِينَ يُتَوَفَّوْنَ مِنْكُمْ وَيَذَرُونَ أَزْوَاجًا يَتَرَبَّصْنَ بِأَنْفُسِهِنَّ أَرْبَعَةَ أَشْهُرٍ وَعَشْرًا
“Those among you who die and leave wives behind—their wives shall wait four months and ten days.” The purpose of making the waiting period obligatory upon her, even without marital intercourse, is to show loyalty and affection toward her deceased husband and to fulfill his rights. (Another reason for specifying four months and ten days is that during this period the creation of the child reaches completion, and the spirit is breathed into it after 120 days. Ten days were added because lunar months may sometimes be shorter. These ten days are therefore added as a precaution to make up for any shortfall.)
Waiting period of a wife with whom intercourse has taken place: According to the Hanafis, Hanbalis, and the Rightly Guided Caliphs, a wife who has been alone with her husband in seclusion is also considered a wife with whom intercourse has taken place, and observing a waiting period is obligatory for her. According to the Shafi‘i school’s later opinion, however, observing a waiting period is not obligatory for her. A wife with whom intercourse has taken place is of two types: one who menstruates and one who does not.
The waiting period of a menstruating woman:
The waiting period of a menstruating woman is three menstrual periods. For Allah says: “Divorced women shall wait for three menstrual periods.” The word quru’ in the verse is the plural of qur’, meaning menstruation. (There is disagreement concerning its meaning.) Ibn al-Qayyim, however, considered menstruation to be the stronger interpretation. It has not been used anywhere in the Qur’an or Hadith to mean purity. Therefore, it is better—indeed necessary—to accept its well-known meaning. The Messenger of Allah ﷺ said to a woman suffering from irregular bleeding: “Do not pray during the days of your menstruation.” The Messenger of Allah ﷺ used Allah’s own terminology, and the Qur’an was revealed in the language of his people. Thus, when he uses an ambiguous word in one place in his Hadith and indicates one of its two meanings, that meaning must be understood wherever the word occurs in his other Hadith as well, unless evidence is found in one of his Hadith indicating another meaning. In such a case, the word becomes part of the Qur’anic terminology, even if it has another meaning in a language other than that of the Qur’an. Once it is established that quru’ means menstruation in the terminology of the Law, it is known that this is its legal meaning. Accordingly, this meaning must be adopted wherever the word occurs in the Law. Allah says in the following part of the verse:قروءThe word quru’ in the verse is the plural of qur’, meaning menstruation. (There is disagreement concerning its meaning.) Ibn al-Qayyim, however, considered menstruation to be the stronger interpretation. It has not been used anywhere in the Qur’an or Hadith to mean purity. Therefore, it is better—indeed necessary—to accept its well-known meaning. The Messenger of Allah ﷺ said to a woman suffering from irregular bleeding: “Do not pray during the days of your menstruation.” The Messenger of Allah ﷺ used Allah’s own terminology, and the Qur’an was revealed in the language of his people. Thus, when he uses an ambiguous word in one place in his Hadith and indicates one of its two meanings, that meaning must be understood wherever the word occurs in his other Hadith as well, unless evidence is found in one of his Hadith indicating another meaning. In such a case, the word becomes part of the Qur’anic terminology, even if it has another meaning in a language other than that of the Qur’an. Once it is established that quru’ means menstruation in the terminology of the Law, it is known that this is its legal meaning. Accordingly, this meaning must be adopted wherever the word occurs in the Law. Allah says in the following part of the verse:
وَلَا يَحِلُّ لَهُنَّ أَن يَكْتُمْنَ مَا خَلَقَ اللَّهُ فِي أَرْحَامِهِنَّ
“It is not lawful for women to conceal what Allah has created in their wombs.” According to most Qur’an commentators, this refers to menstruation and the fetus. In fact, the fetus created in the womb is menstruation given form. Scholars of earlier and later times have said this. No one has said that it means tuhr, or a state of purity.
Moreover, the Exalted Allah said in verse 4 of Surat al-Talaq:
وَالَّتِي يَئِسْنَ مِنَ الْمَحِيضِ مِنْ نِسَائِكُمْ إِنِ ارْتَبْتُمْ فَعِدَّتُهُنَّ ثَلَاثَةُ أَشْهُرٍ وَاللَّائِي لَمْ يَحِضْنَ ، وَأُولَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ وَمَن يَتَّقِ اللَّهَ يَجْعَل لَّهُ مِنْ أَمْرِهِ يُسْرًا
Meaning: “As for those of your women who no longer expect menstruation, if you are uncertain, their waiting period is three months; and also for those who have not menstruated. As for pregnant women, their waiting period ends when they give birth.” (Al-Talaq: 4)
Thus it is clear that Allah appointed one month for each menstrual period and made the ruling dependent upon the absence of menstruation, not upon the absence of both menstruation and purity. Elsewhere He says:
فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ
“So divorce them for their waiting period.” That is, with their waiting period in view, not during the waiting period. In fact, when the waiting period for which wives are divorced comes after the divorce, what occurs after the divorce is nothing other than menstruation. A pure woman does not encounter another state of purity; rather, she remains in the state of purity she is in. Immediately after that state of purity, she encounters menstruation.
The minimum period of the waiting period when both menstruation and purity are counted as quru’: According to the Shafi‘i school, the minimum period in which a free woman can complete her waiting period through a combination of menstruation and purity is thirty-two days and one hour. This is because her husband divorces her while she is pure, with one hour of that state of purity remaining after the divorce. That one hour counts as her first state of purity. Then she menstruates for one day and remains pure for fifteen days. This is her second state of purity. She then menstruates again for one day and remains pure for fifteen days. This is her third state of purity. When she enters her third menstrual period, her waiting period ends.
Abu Hanifah, on the other hand, held that the minimum period is sixty days, while according to his two disciples it is thirty-nine days. According to Imam Abu Hanifah, she begins her waiting period with ten days of menstruation, which is the maximum duration of menstruation. This is followed by fifteen days of purity, then another ten days of menstruation, followed by another fifteen days of purity. Then comes the third menstrual period, lasting ten days. Thus the total waiting period is sixty days. Once this period has ended and the wife claims that her waiting period is complete, she becomes lawful for another husband.
Abu Hanifah’s two disciples, on the other hand, count three days for each menstrual period, which is its minimum duration, and fifteen days for each of the two states of purity between the three menstrual periods. Thus the total waiting period is thirty-nine days.
The waiting period of a woman who does not menstruate: If a wife does not menstruate, her waiting period is three months. This applies both to a minor girl and to an elderly woman who has passed the age of menstruation, whether she has never menstruated at all or menstruation began and then ceased. The evidence is the previously mentioned verse 4 of Surat al-Talaq.
Ibn Abi Hashim mentioned in his Tafsir that Ubayy ibn Ka‘b said: I said, “O Messenger of Allah, some people in Madinah are saying various things because Allah has not mentioned in the Qur’an the waiting periods of minor girls, elderly women, and pregnant women.” Then Allah revealed verse 4 of Surat al-Talaq. It states that the waiting period of a pregnant woman lasts until she gives birth. When she gives birth, her waiting period ends.
The wording of Jarir’s narration is as follows: “I said, ‘O Messenger of Allah, after the verse concerning women’s waiting periods in Surat al-Baqarah was revealed, some people in Madinah said that the waiting periods of certain women had not been mentioned in the Qur’an. They are minors, elderly women who have passed the age of menstruation, and pregnant women.’ Then Allah revealed verse 4 of Surat al-Talaq.
What should a woman do when her menstruation ceases to occur? When a woman who is in a state of purity is divorced, but she does not menstruate regularly and does not know the reason, she must observe a waiting period of one year. First, she waits nine months to determine whether her womb is free of a fetus, since this is generally the duration of pregnancy. When pregnancy does not become apparent during this period, it is clear that her womb is free of a fetus. She then observes the three-month waiting period of elderly women whose menstruation has ceased. This was the judgment of Umar. Imam al-Shafi‘i said: This was Umar’s judgment among the Muhajirun and the Ansar. We know of no one who rejected it.
The age at which menstruation ceases due to old age: Scholars disagree on this matter. Some say that menstruation ceases due to old age at fifty, while others say sixty. The actual situation, however, differs from woman to woman. Shaykh al-Islam Ibn Taymiyyah said: “The age at which menstruation ceases differs from one woman to another. There is no specific age at which all women reach this state. The meaning of verse 4 of Surat al-Talaq is that each woman can determine for herself whether her menstruation has ceased. When a woman believes that her menstruation has stopped and will not return, she may be classified among women whose menstruation has ceased due to old age, whether she is forty or around that age. But many women do not believe that their menstruation has ceased permanently even when they reach fifty.”
The waiting period of a pregnant woman: A pregnant woman’s waiting period ends as soon as she gives birth, whether she is divorced or widowed. Allah says:
وَأُولَاتُ الْأَحْمَالِ أَجَلُهُنَّ أَن يَضَعْنَ حَمْلَهُنَّ
“The waiting period of pregnant women ends when they give birth.” (Al-Talaq, verse 4)
It is stated in Zad al-Ma‘ad: The above portion of verse 4 of Surat al-Talaq proves unequivocally that when a woman is carrying twins, her waiting period does not end until she has given birth to both children. Moreover, regardless of whether the child is alive or dead, fully formed or incomplete, ensouled or not ensouled, the waiting period ends immediately upon delivery in every case.
Subay‘ah al-Aslamiyyah was the wife of Sa‘d ibn Khawlah, who had participated in the Battle of Badr. Sa‘d then died during the Farewell Pilgrimage while she was pregnant. A few days after his death, Subay‘ah gave birth. After becoming pure from the postpartum bleeding, nifas, she began adorning herself in preparation for receiving marriage proposals. At that time, a man named Abu al-Sanabil of Banu Abd al-Dar came to her and said, “What is the matter? I see you adorning yourself. Do you perhaps hope to marry? By Allah, you cannot marry until four months and ten days have passed.” Subay‘ah said: “Upon hearing this, I went to the Messenger of Allah ﷺ and asked him about it. He said: ‘You became lawful as soon as you gave birth,’ and he instructed me to marry if I wished.” Ibn Shihab said: “I see no obstacle to a woman marrying immediately after giving birth, even while experiencing postpartum bleeding. However, her husband may not approach her until she becomes pure.” —Al-Bukhari, Muslim, al-Nasa’i, Ibn Majah.
Scholars have identified the waiting period mentioned in verse 234 of Surat al-Baqarah—four months and ten days—as the waiting period of a non-pregnant widow, and the waiting period in verse 4 of Surat al-Talaq—lasting until childbirth—as that of pregnant women. Thus, the second verse does not conflict with the first.
The waiting period of a widow:
A woman whose husband has died observes a waiting period of four months and ten days if she is not pregnant. This is clearly stated in verse 234 of Surat al-Baqarah. If her husband dies while she is observing the waiting period following a revocable divorce, she observes the waiting period of a widow, because she was still his wife when he died.
The waiting period of a woman suffering from irregular bleeding: A woman who suffers from irregular bleeding observes her waiting period according to menstruation. If she has a regular pattern or established habit, she must follow it with regard to both bleeding and purity. Her waiting period ends after three menstrual periods have passed. If menstruation has ceased due to old age, her waiting period is three months.
A waiting period is required even when the marriage is invalid: A woman with whom a man has had intercourse under a doubtful marriage must also observe a waiting period. This is because intercourse under a doubtful marriage and intercourse within a marriage are equivalent concerning the determination of the child’s lineage. Observing a waiting period is obligatory in both cases. If intercourse occurs in an invalid marriage, observing a waiting period is likewise obligatory. However, if a man commits fornication with a woman, observing a waiting period is not obligatory for her, because the waiting period is prescribed to preserve lineage, whereas fornication does not preserve lineage. This is the opinion of the Hanafis, Shafi‘is, and al-Thawri. It is also the opinion of Abu Bakr and Umar.
Imam Malik and Ahmad said that she must also observe a waiting period. But is her waiting period three menstrual periods or one period that establishes that the womb is free? Two opinions have been narrated from Imam Ahmad: one specifies three menstrual periods and the other one menstrual period.
When does a waiting period calculated by menstruation become a waiting period calculated by months? If a husband dies during the waiting period after divorcing a wife who menstruates, it must be determined whether the divorce was revocable. If it was revocable, she must observe the widow’s waiting period of four months and ten days, because she was still his wife and a revocable divorce does not sever the marital relationship. Therefore, if either of the two dies during the waiting period, each inherits from the other.
If the divorce was irrevocable, the wife observes the divorce waiting period based on menstruation. In this case, it does not change into the widow’s waiting period, because the marital bond was severed at the time of divorce. An irrevocable divorce ends the marital relationship. Thus, when the husband died, he was no longer her husband. If either of them dies during the waiting period, neither inherits from the other. However, the matter is different if the husband is considered a fugitive.
The fugitive’s divorce: A fugitive’s divorce is an irrevocable divorce issued by a man from his deathbed without his wife’s consent, after which he dies while she is still observing her waiting period. In this situation, the husband is called a fugitive because he is fleeing from her inheritance. For this reason, Imam Malik said that even if the husband dies after his wife’s waiting period has ended and after she has married another husband, she will still inherit from him. He intended to deprive her of inheritance, so she is given the inheritance as a countermeasure against his wrongful intention.
According to Abu Hanifah and Muhammad, the ruling concerning the waiting period changes in this case. Her waiting period is whichever is longer—the waiting period of divorce or that of widowhood—so that she is not deprived of the inheritance from her husband which he sought to evade by divorcing her. According to Abu Yusuf, she observes the divorce waiting period. According to al-Shafi‘i, she does not inherit, just as a woman irrevocably divorced while her husband is healthy does not inherit. His reasoning is that the marital bond was severed by the divorce before death, so the basis for inheritance no longer exists. The notion that he intended to evade inheritance is not acceptable, because the rulings of the Law are connected to apparent causes, not hidden intentions. Everyone agrees, however, that if a husband irrevocably divorces his wife during his illness and she subsequently dies, the husband does not inherit from his deceased wife.
Similarly, a waiting period calculated by menstrual periods changes to one calculated by months in the case of a woman whose menstruation ceases due to old age after one or two menstrual periods. In this case, she must observe a waiting period of three months, because completing the waiting period by menstruation has become impossible as menstruation has ceased. It can be completed only by recalculating it in months; the months then serve as substitutes for menstrual periods.
Changing the waiting period from months to menstrual periods
When a wife begins calculating her waiting period by months because she is a minor or has reached the age at which menstruation ceases due to old age, and menstruation then begins, she must change to calculating the waiting period by menstrual periods. This is because the months are substitutes for menstruation. When the original menstruation has not ceased, it is not permissible to observe the waiting period using a substitute. If the waiting period calculated by months has ended and menstruation then begins, it is not necessary to recalculate it through a combination of menstruation and purity, because this occurred after the waiting period had elapsed. If she begins calculating the waiting period by months or through a combination of menstruation and purity, and then discovers that she is pregnant by her husband, the waiting period changes to one lasting until childbirth, because childbirth is conclusive proof that the womb has been emptied.
Completion of the waiting period
If the wife is pregnant, her waiting period ends with childbirth. If the waiting period is calculated by months, it is counted from the time of separation or the husband’s death, until either three months or four months and ten days have been completed. If the waiting period is calculated by menstruation, it ends after three menstrual periods, and the wife herself determines this.
According to Imam Malik and al-Shafi‘i, if the divorce occurs in the middle of a month, the remainder of that month and the following two months are counted as lunar months for the waiting period. Then one complete month of thirty days must be observed. According to Abu Hanifah, she observes the remainder of the first month and the portion missing from the beginning of the fourth month, whether the months are complete or incomplete.
The waiting period must be observed in the husband’s home
A woman observing a waiting period must remain in her husband’s home until the waiting period ends. It is not lawful for her to leave it, nor is it lawful for her husband to expel her. If she is divorced or separated while staying somewhere other than her husband’s home, she must return to her husband’s home as soon as she receives the news. Allah says:
يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاءَ فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ وَاتَّقُوا اللَّهَ رَبَّكُمْ لَا تُخْرِجُوهُنَّ مِنْ بُيُوتِهِنَّ وَلَا يَخْرُجْنَ إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ وَتِلْكَ حُدُودُ اللَّهِ وَمَن يَتَعَدَّ حُدُودَ اللَّهِ فَقَدْ ظَلَمَ نَفْسَهُ
Meaning: “O Prophet, tell your people: When you intend to divorce women, divorce them with regard to their waiting period and count the waiting period. Fear Allah, your Lord. Do not expel them from their homes, nor should they leave, unless they commit an explicit indecency. These are Allah’s limits, and whoever transgresses Allah’s limits has wronged himself.” (Surat al-Talaq: 1)
Ibn Abbas said that explicit indecency means such indecency as becomes known to the husband’s family. When the family learns of it, it is permissible to expel her from the house.
It is narrated from Furay‘ah, the sister of Abu Sa‘id al-Khudri, that she came to the Messenger of Allah ﷺ and asked whether she could return to her family in the Banu Khudrah tribe, her father’s home. Her husband had gone out in search of some fugitive slaves. When they reached the outskirts of Qadum, six miles from Madinah, he caught up with them, but they killed him. Furay‘ah asked the Messenger of Allah ﷺ, “May I return to my father’s home? My husband left me neither in a house he owned nor with any provision.” The Messenger of Allah ﷺ said, “Yes.” Furay‘ah said: “I immediately set out. But while I was still in the hujrah, or mosque, he called me back. I came to him, and the Messenger of Allah ﷺ said, ‘What were you saying?’ I told him the story of my husband. He said, ‘Remain in the home your husband left until you complete your waiting period.’ I then spent four months and ten days of my waiting period there. When Uthman became caliph, he sent a messenger to me to ask about the incident. I informed him of the entire matter, and he followed and upheld that judgment.” (Abu Dawud, al-Nasa’i, Ibn Majah, al-Tirmidhi. Al-Tirmidhi said that Umar used to send widows back from the desert and would not allow them to perform Hajj.) However, if the family of a Bedouin widow are nomadic, she may leave her husband’s home with her family.
According to A’ishah, Ibn Abbas, Jabir, al-Hasan, Ata, and Ali, it is not necessary to observe the waiting period in the husband’s home. A’ishah used to issue a legal opinion permitting a widow to leave her husband’s home during her waiting period. She herself went to Makkah with her sister Umm Kulthum to perform Umrah after Umm Kulthum’s husband, Talhah ibn Ubaydullah, was killed. Ibn Abbas said: “Allah only said that a widow must observe a waiting period of four months and ten days; He did not say that she must observe it while remaining in her husband’s home. She may observe it wherever she wishes.” Abu Dawud narrated from Ibn Abbas that this verse abrogated the ruling requiring a widow to remain with her husband’s family, while leaving the matter of the wife’s bequest unaddressed. She may leave her husband’s home if she wishes, because Allah says:
فَإِنْ خَرَجْنَ فَلَا جُنَاحَ عَلَيْكُم فِي مَا فَعَلْنَ فِي أَنْفُسِهِنَّ
“If they leave, there is no blame upon you for what they do with themselves.” (Surat al-Baqarah: verse 240)
Ata said: Then the inheritance ruling was revealed and abrogated the ruling requiring residence in the husband’s home. She may observe her waiting period wherever she wishes.
Scholarly disagreement concerning a woman leaving during her waiting period:
The jurists expressed differing opinions concerning women leaving their husbands’ homes during the waiting period. The Hanafis hold that a divorced woman, whether revocably or irrevocably divorced, may never leave her home, by night or by day. A widow, however, may leave during the day and part of the night, but she may not spend the night anywhere other than her own home. The difference between the two is that a divorced woman’s maintenance comes from her husband’s property. Therefore, just as when she was still his wife, she may not leave the home. A widow, by contrast, has no maintenance, so she may leave during the day to improve her circumstances. She must observe her waiting period in the room where she was made to stay when the separation occurred. If the share she receives from the deceased’s home is insufficient for her residence, or if the heirs expel her from their share, she may move elsewhere, because this constitutes an excuse. Remaining in one’s home is an act of worship, but an excuse suspends the obligation of worship. If she lives in a rented home and cannot remain there because the rent is too high, she may move to a less expensive home.
This statement of the jurists proves that the woman observing ‘iddah is responsible for bearing the rent of her accommodation. She is exempt from this only if she is unable to bear it. That is why they said that she may reside in the share she inherits only if it is sufficient for her residence. According to them, a widow has no right to accommodation, whether pregnant or not. It is her duty to remain day and night in the house where her husband died while she was residing there. According to the Hanbalis, she is not entitled to accommodation unless she is pregnant. If she is pregnant, one report says that she is entitled to it, while another says that she is not. Two opinions have also been reported from al-Shafi‘i. According to the Maliki school, she is entitled to accommodation in all circumstances. It is preferable if the heirs arrange alternative accommodation for her. Otherwise, if a house must be rented, she herself must bear the rent. According to the Hanbalis, a woman observing ‘iddah—whether divorced or widowed—may go out during the day.
Ibn Qudamah said that a woman observing ‘iddah, whether divorced or widowed, may go out during the day when necessary. Jabir (may Allah be pleased with him) said: “My maternal aunt had been given an irrevocable divorce. She went out to cut fruit from her date palms. A man saw her and forbade her from going out. She reported the matter to the Messenger of Allah (peace and blessings be upon him). He told her, ‘Go out and cut your dates. Perhaps you will give some of them in charity or do some other good deed.’” —al-Nasa’i and Abu Dawud.
Mujahid narrated: Many people were martyred on the day of Uhud. Their wives came to the Messenger (peace and blessings be upon him) and said, “O Messenger of Allah, we feel lonely at night. May we spend the night with one another and return to our respective homes as soon as morning comes?” The Messenger of Allah (peace and blessings be upon him) said, “Go to one another and continue talking. Then, when sleep comes, let each of you return to her own home.”
In fact, it is not permissible for a woman to spend the night anywhere other than her own home. Nor is it permissible for her to go out at night except in cases of pressing need, for night is the time of all kinds of wrongdoing, unlike the day. The day is the time for necessary activities and earning a livelihood.
The Mourning of a Woman Observing ‘Iddah
During the ‘iddah, it is obligatory for a widow to mourn her deceased husband. There is no disagreement among the jurists on this matter. There is disagreement regarding a woman divorced by an irrevocable divorce. According to the Hanafis, mourning is also obligatory for her. Others say that she is not required to mourn. The significance of mourning will be explained later.
Maintenance of a Woman Observing ‘Iddah
The jurists unanimously state that a woman divorced revocably is entitled to maintenance and accommodation. There is disagreement concerning a woman divorced irrevocably. Abu Hanifah said that, like a woman divorced revocably, she is entitled to maintenance and accommodation, because she is obliged to complete her ‘iddah in her husband’s home. Therefore, she is entitled to have this right fulfilled, and maintenance is unquestionably due to her. From the time of divorce, the maintenance becomes a debt rightfully owed to her. It does not depend on mutual agreement or on a court judgment. This debt can be discharged in only two ways: payment or forgiveness by the creditor. Imam Ahmad said that she is entitled neither to maintenance nor to accommodation, because when Fatimah bint Qays was divorced irrevocably by her husband, the Messenger of Allah (peace and blessings be upon him) told Fatimah, “You are not entitled to any maintenance from your husband.” Imam al-Shafi‘i and Malik said that a wife is entitled to accommodation in all circumstances, but that she is not entitled to it if she is not pregnant. This is because ‘A’ishah and Ibn al-Musayyab did not accept the hadith of Fatimah bint Qays. Imam Malik said, “I heard Ibn Shihab say that a woman divorced irrevocably may not leave her residence until her ‘iddah ends, and she is not entitled to maintenance unless she is pregnant. She must be given maintenance until she gives birth.” Imam Malik said, “This is our position.”
Chapter Sixteen: Concerning the Care of Young Children
Etymology and Definition:
The original Arabic term is “hadanah,” whose lexical meaning is to take into one’s lap or clasp with both arms. “Hadanat al-ta’iru baydahu” means that the bird sheltered its eggs beneath its wings. Similarly, a woman’s embracing a child with her arms is called “hadanah.”
The jurists define it as caring for a minor child or an unintelligent person who is unable to distinguish good from evil, is not self-reliant, cannot ensure what is beneficial to him, cannot protect himself from harmful and distressing things, is incapable of undertaking his physical, psychological, and intellectual training, and is unable to take responsibility for improving and advancing his life. Caring for and maintaining a minor child, whether boy or girl, is obligatory, because neglecting this duty will inevitably lead to his destruction.
Childcare Is a Joint Right:
Since a minor child depends on a guardian who will be responsible for his care, maintenance, and education, being cared for is one of his rights. (An adult child may stay with either the father or the mother. If male, he may also live independently if he wishes. Nevertheless, it is recommended that he stay with his father or mother rather than live alone. A young woman may not live alone. Her father—or, in his absence, her guardian or relatives—may prevent her from living alone, because doing so is not safe for her honor or that of her family.) The mother also has the right to care for the child, for the Messenger of Allah (peace and blessings be upon him) said, “You, the mother, have greater right to care for the child.”
Since being cared for is a right of the minor child, if no one besides the mother is qualified to care for him, she will be compelled to undertake this responsibility so that the child is not deprived of his right to acquire knowledge and good manners. If there is an alternative person—for example, a grandmother who is willing to take him while the mother is unwilling—then the mother’s right will lapse because she has relinquished it. This is because the right of care originally belongs to the mother. Some Islamic courts have issued rulings supporting this. A judgment of the Jarjar Court dated 13/7/1933 stated:
“Both the child and the caregiver have a right to childcare. However, the child’s right is stronger than the caregiver’s right. The child’s right to be cared for is not forfeited merely because the caregiver unilaterally relinquishes her right to care for him.”
The al-Yat Court stated in a judgment dated October 7, 1928: “Even if someone other than the mother voluntarily assumes responsibility for caring for a nursing child, the mother’s right to care for that nursing child does not lapse; rather, it remains with her. No one may deprive the mother of this right as long as the child depends on milk, because there is no justification for harming the child by depriving him of his mother’s care. The reason is that she is more affectionate toward him than anyone else and more patient in serving him.” —Dr. Yusuf Musa, Muslim Family Law.
The Mother Has Greater Right to the Child Than the Father
The education a child receives while being raised in the laps of his mother and father is the finest education. Through the care of both parents, the child’s physical formation, intellectual development, and psychological and spiritual refinement are perfected in such a way that they make a substantial contribution to building the foundation of his entire life. For this reason, when something occurs that causes the parents to separate while they have children, the mother has greater right than the father to care for the child. The only exceptions are when the mother faces an obstacle to receiving this priority (such as the absence of the essential conditions for childcare), or when a characteristic develops in the child that gives him the freedom to choose either his father or mother (such as no longer needing a woman’s care). The reason for the mother’s priority is that guardianship of childcare and breastfeeding has been assigned to her, since she possesses the greatest skill and ability in raising and training the child. The patience and forbearance required for this task are found in mothers to a greater degree than in men, and mothers also have more time available for it. For these reasons, the mother is given priority in the child’s best interests. It is narrated from ‘Abdullah ibn ‘Umar (may Allah be pleased with him):
A woman said, “O Messenger of Allah, my womb was a dwelling for this son of mine, my lap was a fortress, and my breast was a storehouse of food and drink for him. Yet his father wants to take him away from me.” The Messenger of Allah (peace and blessings be upon him) said, “You have greater right to keep him as long as you do not marry.” —Ahmad, Abu Dawud, al-Bayhaqi, and al-Hakim.
Imam Malik narrated in the Muwatta’: ‘Umar ibn al-Khattab had an Ansari wife. His son ‘Asim was born to her. Later, ‘Umar and that wife separated. One day, ‘Umar (may Allah be pleased with him) came to Quba and saw his son ‘Asim playing in the mosque courtyard. He immediately picked him up by the arm and seated him on the back of his mount. When the boy’s maternal grandmother saw this, she began arguing with ‘Umar, and both of them took their complaint to Abu Bakr. ‘Umar said, “He is my son,” while the woman said, “He is my son.” Abu Bakr ruled, “Let him go with his grandmother.” After that, ‘Umar did not repeat his claim. Some reports state that Abu Bakr said, “The mother is the most affectionate, loving, compassionate, and perceptive of what is good and bad. Therefore, she has priority in caring for the child as long as she does not marry.” Abu Bakr’s statement makes clear that the mother’s greater affection and tenderness are the fundamental reason for her priority in caring for her minor child. (Although ‘Umar initially opposed Abu Bakr’s view, he later accepted it and even issued legal verdicts and judicial rulings accordingly during his caliphate. The Companions also agreed with both of them regarding minor children.)
Order of Priority in the Right to Childcare:
Since the right to childcare is initially assigned to the mother, the mother’s female relatives have priority over the paternal relatives in this matter. The order of those who successively receive the right to childcare is as follows: first the mother; if the mother is unable for some reason, such as failing to meet a condition, then the maternal grandmother, then the maternal great-grandmother, and so on upward. If an obstacle also arises there, the right passes to the paternal grandmother. It then passes to the full sister, the maternal half-sister, the paternal half-sister, the daughter of the full sister, the daughter of the maternal half-sister, the full maternal aunt, the maternal half-aunt, the paternal half-aunt, the daughter of the paternal half-sister, the daughter of the full brother, the daughter of the maternal half-brother, the daughter of the paternal half-brother, the full paternal aunt, the paternal half-aunt, the maternal half-aunt, the paternal half-aunt, the maternal paternal aunt, and finally the paternal paternal aunt. In every case, however, the full paternal and maternal aunts and similar relatives have priority.
If none of these unmarriageable relatives of the minor child is available, or if those who are available are found unqualified to care for the child, the right to childcare passes to the child’s paternal male unmarriageable relatives according to the order of priority in inheritance law. It first passes to the father, then to the paternal grandfather, however far upward he may be. Then it passes to the full brother, the paternal half-brother, the son of the full brother, the son of the paternal half-brother, the full paternal uncle, the paternal half-uncle, the father’s full paternal uncle, the father’s paternal half-uncle, the father’s full paternal uncle, and the paternal half-grandfather. If none of the paternal male unmarriageable relatives is available, or if those available are unqualified to care for the child, the right passes to any other unmarriageable male relative outside the paternal relatives. It then passes successively to the maternal half-grandfather, the maternal half-brother, the son of the maternal half-brother, the maternal half-uncle, the full maternal uncle, and the paternal half-uncle. If the child has no relatives left at all, the court will appoint a woman capable of caring for him. The reason for establishing this order is that childcare is an extremely important duty, and the child’s relatives have priority in undertaking it. Some relatives have greater priority than others. Guardians are given priority because appointing them serves the child’s interests. If they are unavailable or lack the conditions required for childcare, the responsibility passes successively to the closest relatives. If there are no relatives at all, the judge is responsible for appointing a suitable caregiver.
Conditions for Caring for a Young Child:
A female caregiver of a young child must possess the ability and competence to care for the child. This ability and competence are established by fulfilling certain specific conditions. If she is unable to meet these conditions, the responsibility of childcare will lapse. These conditions are as follows:
1. Soundness of mind: For this reason, an insane or mentally deranged person may not be entrusted with caring for a child, since such people cannot properly manage even their own affairs. Therefore, responsibility for supervising another person cannot be assigned to them. How can someone give another what he himself has not acquired?
2. Adulthood: Even if a minor child has acquired the ability to distinguish good from evil, he still depends on a guardian, caregiver, and supervisor; therefore, he cannot supervise or act as guardian over someone else.
3. Ability and competence to provide care: Because of this condition, a blind person, someone with weak eyesight, someone suffering from a contagious disease, someone suffering from an illness that renders him incapable of fulfilling his responsibility, or someone so elderly that he himself depends on another’s supervision may not be entrusted with childcare. Similarly, this responsibility may not be assigned to a woman who neglects her household affairs and is frequently outside the home, if such neglect is likely to harm the child or endanger his life. Nor may it be assigned to a woman who lives with someone suffering from a contagious disease or with someone who hates the child. Such a person is unacceptable even if she is a relative of the child, because in her presence the child would necessarily be deprived of adequate supervision, care, and a healthy environment.
4. Good character and trustworthiness: A sinful woman is dangerous for a child and cannot be trusted to care for him. The child may grow up according to his caregiver’s ways and acquire her bad character. Ibn al-Qayyim said in explaining this condition: “Although al-Shafi‘i and Ahmad’s disciples stipulate honesty and uprightness for a child’s caregiver, the sound view is that this is not a condition at all. Even if it is considered a condition, it can only be applied as a last resort. If this condition were imposed generally, nearly all children in the world would die for lack of caregivers, people would be overwhelmed by their situation, their hardship would become severe, and from the establishment of Islam until the Day of Resurrection no one would come forward to supervise the children of sinful people, even though they are numerous. In fact, in Islam, taking a child away from a parent because of that parent’s sinfulness is extremely difficult and burdensome, and the opposite practice has prevailed in all Muslim regions and in every era. Imposing honesty as a condition for childcare is like imposing it as a condition for guardianship in marriage. Such guardianship has existed in cities and villages throughout every era, even though many guardians are dishonest and sinful, and sinfulness exists in human society. Neither the Messenger of Allah (peace and blessings be upon him) nor any Companion prevented a sinful or immoral person from caring for his child or from marrying off a girl under his guardianship. Social custom also shows that even if a man is immoral, he is very careful regarding his daughter and generally does not allow her to go astray. Rather, he eagerly strives for her welfare. The contrary may occur, but only rarely. In this matter, the Shariah relies on people’s natural awareness and motivation. If the Shariah were to deprive an immoral person of childcare and marital guardianship, it would give the issue the highest importance by explicitly mentioning it and acting accordingly. If a person’s sinfulness were contrary to childcare, it would separate adulterers, wine drinkers, and those guilty of major sins from their children and appoint someone else to care for them.”
5. Being Muslim: As a result of this condition, even a close non-Muslim woman may not lawfully care for a minor Muslim child. Childcare is a form of guardianship, and Allah has not made a disbeliever a guardian over a believer. Allah says in verse 141 of Surah al-Nisa’:
وَلَنْ يَجْعَلَ اللَّهُ لِلْكَافِرِينَ عَلَى الْمُؤْمِنِينَ سَبِيلًا
“Allah will never give the disbelievers authority over the believers.”
Guardianship here is like guardianship over property and guardianship in marriage. Moreover, the possibility that the child’s religious identity will be influenced by the caregiver’s religion cannot be dismissed. It is natural that she would be eager to initiate him into her own religion. Once she has done so, it would become difficult for the child to return to Islam later. Nothing could be more harmful to the child. The Messenger of Allah (peace and blessings be upon him) said, “Every child is born upon Islam; thereafter his parents make him a Jew, a Christian, or a fire worshipper.”
On the other hand, the view of the Hanafis, Ibn al-Qasim among the Malikis, and Abu Thawr is that a non-Muslim woman may care for a child even if the child is Muslim. This is because caring for a child consists of little more than breastfeeding and looking after him, both of which may lawfully be performed by any non-Muslim woman.
It is narrated in Abu Dawud and al-Nasa’i: “When Rafi‘ ibn Sinan embraced Islam, his wife refused to embrace Islam. He then came to the Messenger of Allah (peace and blessings be upon him) and, pointing to his weaned child, said, ‘This is my daughter.’
Rafi‘ said, ‘This is my daughter.’ The Messenger of Allah (peace and blessings be upon him) said, ‘O Allah, guide the girl.’ Immediately, the girl went toward her father. Although the Hanafis ruled that it is permissible for a non-Muslim woman to be a caregiver, they stipulated that she must not be an apostate—one who has renounced Islam. According to them, an apostate must be arrested immediately and remain imprisoned until she repents or dies. Thus, she cannot care for a child. If she repents and returns to Islam, she regains the right to provide care.
6. Being unmarried:
A married woman does not have the right to care for a child. This is because the hadith narrated by ‘Abdullah ibn ‘Umar (mentioned earlier) states that a woman said, “O Messenger of Allah, my womb was a dwelling for my son, my lap was his secure refuge, and my breast was a storehouse of food and drink for him. Yet his father is boasting that he will take him away from me.” The Messenger of Allah (peace and blessings be upon him) said, “You have priority over this child as long as you do not marry.” —Ahmad, Abu Dawud, al-Bayhaqi, and al-Hakim.
However, this ruling applies only to a woman who marries a non-relative or a distant relative. If a woman marries a man who is an unmarriageable relative of the child, such as the child’s paternal uncle, she retains the right to care for the child. The uncle also has the right to care for the child, and he has such a relationship and closeness with the child that he will be filled with affection for him and encouraged to look after him. Thus, a spirit of mutual cooperation will arise between the husband and wife in the child’s guardianship and supervision. But if she married a non-relative or distant relative, that husband would neither be affectionate nor compassionate toward the child, nor would he allow his wife to give the child proper care and attention. Consequently, the child would not receive the healthy, normal, and loving environment conducive to developing his abilities and talents.
According to Hasan and Ibn Hazm, a woman who has the lawful right to provide care does not lose that right even if she marries.
7. Freedom:
A person who is enslaved must remain so occupied with the work of his master that it is impossible for him to find the opportunity and time to care for a child. Ibn al-Qayyim said: There is no particularly compelling proof for stipulating freedom as a condition. Nevertheless, three Imams have imposed this condition. Imam Malik said: If a free man has a child born to a female slave, she has priority in caring for the child as long as she is not sold and transferred elsewhere. But when she is transferred and moves elsewhere, that priority passes to the father.
Payment for Childcare
The ruling concerning payment for childcare is the same as the ruling concerning payment for breastfeeding. As long as the mother remains a wife or is observing ‘iddah, she is not entitled to payment for this, because during that time she receives maintenance as a wife or maintenance during ‘iddah. Allah says:
وَالْوَالِدَاتُ يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ لِمَنْ أَرَادَ أَنْ يُتِمَّ الرَّضَاعَةَ ۚ وَعَلَى الْمَوْلُودِ لَهُ رِزْقُهُنَّ وَكِسْوَتُهُنَّ بِالْمَعْرُوفِ
Meaning: Mothers shall breastfeed their children for two complete years, for whoever wishes to complete the nursing term. The father’s duty is to provide the mothers’ maintenance in a fair manner. (Surah al-Baqarah: 233)
This verse proves that a woman is not entitled to payment for childcare while she remains married to her husband or while she is observing ‘iddah. After the ‘iddah, however, she is entitled to payment, just as she is entitled to payment for breastfeeding. Allah says:
فَأَنْفِقُوا عَلَيْهِنَّ حَتَّى يَضَعْنَ حَمْلَهُنَّ ۚ فَإِنْ أَرْضَعْنَ لَكُمْ فَآتُوهُنَّ أُجُورَهُنَّ ۖ وَأْتَمِرُوا بَيْنَكُمْ بِمَعْرُوفٍ ۖ وَإِنْ تَعَاسَرْتُمْ فَسَتُرْضِعُ لَهُ أُخْرَىٰ
Meaning: Provide them with maintenance until they deliver their pregnancy. Then, if they breastfeed the child for you, give them their wages, and consult together in a fair manner. But if you make things difficult for one another, then another woman may breastfeed the child. (Surah al-Talaq: 6)
Any woman other than the mother is entitled to payment for caring for the child, just as a hired wet nurse is entitled to wages for breastfeeding the child. If the mother does not own a residence in which she can care for the child, it is also the father’s responsibility to provide accommodation or pay rent, just as he must pay for childcare and breastfeeding. Likewise, if the mother needs a servant and the father is financially able, it is his duty either to pay the servant’s wages or provide a servant. The child’s essential necessities—food, clothing, bedding, medicines, and the like, without which the child cannot manage—are a separate matter, for the father must provide them in all circumstances. Payment for childcare becomes due from the father as soon as the care begins. It is never extinguished except by payment or release by the creditor.
Childcare Without Payment:
If among the child’s relatives there is someone who is entitled to care for the child and is also willing to do so without payment, while the mother declares that she is unable to care for the child without payment, then the father’s financial condition must be considered. If he is well-off, he will be compelled to employ the child’s mother to care for the child in return for payment and not hand the child over to the woman willing to care for the child without payment; rather, he will keep the child with its mother. For when the father is able to pay, the mother’s care is more suitable and beneficial for the child. Conversely, if the father is poor, he will, because of his poverty, entrust the child to the woman willing to care for it without payment, since she is one of the child’s close relatives entitled to provide childcare.
This rule applies when the father is obliged to provide the child’s maintenance. But if the child has property of its own from which the necessary expenses can be covered, the child will be entrusted to the woman willing to care for it without payment, because this will protect the child’s property. If the father is well-off, the child has no property, the mother is unwilling to care for it without payment, and none of the child’s mahram relatives is willing to care for it without payment, then the mother will be compelled to undertake childcare, and this payment will remain a debt upon the father that is never extinguished except by payment or release.
Completion of the Childcare Period
The childcare period ends only when the child no longer depends on women’s care, develops a sense of independence and the ability to distinguish good from bad, and can manage its essential tasks alone, such as eating, dressing, and cleaning itself. It cannot be specified exactly when the ability to perform these tasks develops; therefore, the precise end of the childcare period cannot be stated either. In reality, the determining limits are the child’s ability to distinguish good from bad and the end of its need for women’s care. When the child can distinguish good from bad, no longer depends on women’s care, and can meet its basic needs independently, its childcare period ends. The Hanafi ruling is that a boy’s childcare period ends when he completes seven years and a girl’s when she completes nine years. They considered the additional two years for a girl appropriate so that she may learn from her caregiver the practices of womanly life. Section 20 of Article 25 of the Egyptian Law of 1929 specifies the age for childcare as follows:
“The court may set the period during which a minor boy remains in the care of women at seven to nine years, and that for a girl at nine to eleven years, if it is established that this serves the child’s interests.” Thus, the responsibility for determining what is best for the child has been left to the court. The explanation of this provision states: “The procedure followed to date is that the right of custody ends for a boy at seven years and for a girl at nine years.” In fact, experience shows that these are the ages up to which boys and girls remain dependent on some female caregiver. Until these ages, transferring a boy or girl from a female caregiver to a male caregiver is dangerous for both, especially when their father marries a woman other than their mother. Therefore, women may be allowed to raise strong objections to taking the children away at this stage. The authoritative Hanafi position is that a boy is handed over to his father when he no longer needs the care of a female caregiver, and a girl when she reaches puberty. But the jurists held various opinions about the age at which a child becomes free of this dependence. Some say seven, others nine; some say puberty occurs at nine, and others at eleven. The relevant ministry, however, considers it beneficial to leave the court the authority to determine how the interests of a boy after seven and a girl after nine are to be protected. If the court considers it beneficial for them to remain with their female caregiver beyond these ages, it may order that the boy remain with her for two additional years, until nine, and the girl for two additional years, until eleven. If it considers another arrangement more beneficial, it may entrust both to a male guardian.” Article 175 of the Muslim Family Law provides that where the caregiver is a woman, the court may likewise extend the period by two years. The court may also permit both the boy and the girl to remain with their mother or grandmother until the age of fifteen. In our view, however, it is beneficial to follow Section 20 of Article 25 of the 1929 Law, which remains in force. —Dr. Muhammad Yusuf Musa.
Sudanese Law:
Dr. Muhammad Yusuf Musa states that, until Law No. 34 of 1932 was enacted, the rule applied in Sudanese Islamic courts was that the final age for a boy’s childcare was seven and for a girl’s nine. Then the first section of the 1932 Law provided: “The court may permit a boy to remain in the care of a female caregiver from the age of seven until puberty, and a girl from the age of nine until she enters her husband’s household, if it is found that this ensures her welfare. During the period in which the child is raised by the caregiver, the father and all other elders may educate the child and teach good manners.” The second section then stated: “No payment shall be due for childcare after a boy reaches seven or a girl reaches nine.” The third section provided: “If the father marries off his daughter in order to relieve the caregiver of responsibility for raising her, the childcare obligation shall not end merely upon her going to her husband’s household, so long as the caregiver remains able to care for her.” The substance of the regulations published in Khartoum in 1942 is as follows:
1. Shari‘ah Regulation No. 34 extended the age of childcare for a boy until puberty and for a girl until she enters her husband’s household. This is contrary to Abu Hanifa’s opinion and accords with the Maliki school.
This appears to be an exceptional situation, and the following measures are necessary to overcome it:
1. The court will extend the childcare period only when the caregiver asks the court for permission to keep the child with her. In making the request, she must state that the child’s welfare lies in doing so and explain the anticipated benefit. Alternatively, for the same reason, she may refuse to hand over the child in her care to the child’s paternal relative. If the paternal relative does not agree to leave the child with its caregiver, the caregiver will be asked to present her evidence, or the court will itself investigate what serves the interests and welfare of the boy or girl. If the caregiver presents no evidence, or presents evidence insufficient for a decision, and it is not clear to the court that keeping the child with her is beneficial, then, upon the caregiver’s claim, the court will require the paternal relative to swear that the child’s welfare will not be ensured by leaving it with the caregiver. If he takes this oath, the court will order that the child be handed over to him. If he refuses to swear, it will reject his application.
2. If the caregiver does not object to handing the child over to its paternal relative, or does not appear in court at all, the court must follow the rule of Imam Abu Hanifa’s school. Under this rule, a child who has passed the childcare age limit will be handed over to a paternal relative deemed suitable, and it need not be proved that this is required by the child’s interests.
3. If the caregiver is absent when the child is transferred to its paternal relative, she may oppose the court’s ruling and claim that the child should remain with her. In such a case, the court will take exactly the same steps with her as it takes with a caregiver who is present.
4. If the court decides, for the child’s welfare, to keep the child among women, and later the circumstances change so that the means of ensuring its welfare becomes disputed again, then, after becoming certain that there is no benefit to the child in remaining with the caregiver, the court will permit the child to be taken from her and transferred to a paternal relative. (Dr. Muhammad Yusuf Musa, Muslim Family Law, p. 516.)
Children’s Freedom upon Completion of the Childcare Period
When the child reaches seven years of age, or the age of understanding good and bad, and the period of being raised by another has ended, if the father and the caregiver agree that the child should remain with either one of them, that agreement will be followed. If they disagree and enter into dispute, the child will be given the freedom to choose either of them. The one the child chooses will have priority. (There are two conditions for giving the child this freedom: 1. All the disputing parties must be entitled to custody. 2. The child must not be mentally ill or intellectually disabled. If the child is mentally ill, the mother has priority to be its guardian, even if the child has reached adulthood, because in such a condition she remains its mother even after it becomes an adult, and the mother is more compassionate toward the child.)
Abu Hurayrah narrated: A woman came to the Messenger of Allah and said, “O Messenger of Allah, my husband wants to take my son away, although this son has brought me water to drink from the well of Abu Anabah, located one mile from Medina, and has done me many other services.” The Messenger of Allah said to the boy, “Here is your father, and here is your mother. Take the hand of whichever one you wish.” The boy took his mother’s hand, and the woman then left with him. —Abu Dawud.
Umar, Ali, and Shurayh issued judgments according to this rule. This is also the view of the Shafi‘i and Hanbali schools. If the boy chooses both, or chooses neither, one of them will be selected by lot. Abu Hanifa said that the father’s right takes precedence and that the boy may not be given a choice, because he has no sound judgment and cannot understand what is good or bad for him. He may choose the person with whom he can play freely, who will not teach him manners and will let him do whatever he wishes; as a result, he may become unruly. Moreover, since he has not reached maturity, he cannot be given a choice, just as a child under seven is not given a choice. Imam Malik held that the mother has greater right over the child until its teeth fall out. This rule applies to a boy. Regarding a girl, Imam al-Shafi‘i held that she should be given a choice like a boy. Abu Hanifa said that the mother has greater right over a girl until she reaches puberty or marries. Imam Malik said that the mother has greater right until the girl marries and enters her husband’s household. According to the Hanbalis, the father has greater right over a girl until she reaches nine, and she is not given a choice. The Shari‘ah contains no clear directive concerning the child’s choice or the priority of either mother or father. The scholars also agree that neither of them has been given an unconditional priority in the Shari‘ah. Rather, the stricter or more neglectful of the two is not to be preferred over the upright, just, and balanced one. What matters here is the ability to protect and supervise the child. Ibn al-Qayyim expressed the view that if the father is neglectful, careless, incapable, or inadequately capable of caring for the child, while the mother is the opposite, the mother has priority in childcare. He said that whichever of the two we prefer—whether through giving the child a choice, by drawing lots, or by any other means—must be preferred in a way that ensures the child’s interests and welfare. If the mother is a better protector and supervisor than the father, she will be preferred over him. In such a case, no attention will be paid to drawing lots or allowing the child to choose, because the child’s intellect is weak and incomplete and it generally prefers playing or idleness. Naturally, it will choose whoever assists it in this. Therefore, no attention should be paid to whom the child chooses or does not choose. The child should remain with whichever of the mother and father is more beneficial and advantageous for it. The Shari‘ah cannot tolerate anything else, because the Messenger of Allah said: “Command your children to pray when they are seven, strike them if they do not pray at ten, and separate their beds.” And Allah has said:
يَا أَيُّهَا الَّذِينَ آمَنُوا قُوا أَنفُسَكُمْ وَأَهْلِيكُمْ نَارًا وَقُودُهَا النَّاسُ وَالْحِجَارَةُ
Meaning: O believers, protect yourselves and your families from the Fire whose fuel is people and stones. (Surah al-Tahrim: Verse 6)
Imam Hasan al-Basri said: “Teach your children knowledge, teach them good manners, and teach them the Islamic rulings.”
Therefore, a mother who sends the child to Qur’an school and teaches it the Qur’an has priority over a father who mostly helps the child play and associate with its peers. There is no question of drawing lots or giving the child the power to choose in this matter. If the father is like this instead of the mother, the same rule applies to him. Of the parents, priority belongs to the one who obeys Allah and His Messenger over the one who disobeys Allah’s and His Messenger’s commands concerning the children. Imam Ibn Taymiyyah said: Once, both parents brought conflicting claims concerning their child before a ruler. The ruler gave the child a choice, and it chose its father. The mother then said to the ruler, “Ask it why it chose its father.” The ruler asked, and the child replied, “My mother sends me to Qur’an school every day, where the teacher beats me, while my father lets me play with the boys.” Hearing this, the ruler ruled in favor of the mother and said, “You have greater priority regarding your child.” Ibn Taymiyyah further said that whichever parent abandons giving the child an Islamic education is sinful and has no right to guardianship over the child. This applies not only to parents but to all those responsible for children. Such a person must relinquish guardianship and appoint someone who will raise the children according to Islamic principles and ideals. For everyone’s fundamental objective should be to obey Allah and His Messenger to the best of their ability.
When a Child Alternates between the Homes of Both Parents
Shafi‘i scholars said that if the child is a boy and chooses his mother, he will stay with her at night, while the father will take him during the day to school or a vocational institute, since the primary objective is to improve the child’s prospects. If he chooses his father, he will remain with his father day and night. However, he may not be prevented from visiting or meeting his mother, because preventing this would mean encouraging him to disobey his mother and sever the bonds of kinship. If the boy becomes ill, the mother has greater right to care for him, because illness makes him entirely dependent, like a child, on a caregiver; in such circumstances, the mother has priority in caring for him. If the child is a girl and chooses one of the two, she will remain day and night with the one she chose. The other may not be prevented from seeing her, although such visits should not be excessively long, because when a husband and wife separate, neither should spend a long time with the other. If the girl becomes ill, the mother has priority to take her to her own home and care for her. If either parent becomes ill while the child is with the other, the child may not be prevented from caring for that parent or remaining with the parent at the time of death. If the child chooses one parent and is entrusted to that parent, then later chooses the other, it must be transferred to the latter. If, after being transferred, it again chooses the first, it must be returned to that parent, because the choice must follow the child’s free will. A child living with either the mother or father may at different times prefer to stay with one or the other. In that situation, just as its wishes are followed regarding the provision of food and drink, they should also be followed regarding this preference.
Relocating the Child
When one parent travels for a need while the other remains at home, the parent who remains at home has priority to keep the child, because travelling with a child is harmful to it, especially if it is breastfed. This has been stated without qualification, and travel for Hajj is not excluded. If one of them relocates from one city to another for residence, and the city or the route to it—or either of them—is dangerous, the one who remains settled has priority to care for the child. If the city and the route to it are safe and peaceful, one of the two opinions transmitted from Ahmad is that the father has the right to custody so that he can educate the child. This is also the view of Malik and the Shafi‘is, and Shurayh issued judgments accordingly. The other opinion gives priority to the mother. There is also a third opinion: if the person relocating is the father, the mother has priority; if it is the mother, one must consider whether the city to which she is moving is the city where the original marriage took place. If so, the mother has priority; otherwise, the father has priority. This is also Abu Hanifa’s view. Another opinion attributed to Abu Hanifa is that if the mother moves from a city to a village, the father has priority, but if she moves from one city to another, the mother has priority. None of these opinions has particularly convincing evidence. Therefore, the correct and cautious course is to do what most surely serves the child’s welfare. It must be considered which is more beneficial: relocating or not relocating. Whichever is more beneficial and safer for the child should be done. These rules apply only when neither parent intends, by relocating, to harm the other or take the child away from the other. The child will not be entrusted to anyone who intends to do so.
Court Judgments
There are innumerable judgments of Islamic courts in cases concerning childcare. Many of these judgments have yielded various rules and principles. I present some such judgments here:
First Judgment: This judgment, issued by the lower court of the Karmuz district in 1932, was upheld by a judgment of the Alexandria lower court in 1933. The court rejected the father’s application to assume care of his young daughter on the pretext of the mother’s absence. The wife had begun living in a city far from the city where the girl’s father and mother lived and where their marriage had taken place. Since the mother’s residence so far away supposedly extinguished her right to childcare, the father requested permission to take responsibility for raising the girl himself. In its judgment, the court cited the fiqh rule that the mother has priority in childcare both before and after separation between husband and wife. Even disobedience by the wife toward her husband does not extinguish her right to care for the child. As long as the marital bond remains, if the father wishes to assume childcare himself, he must first give the disobedient wife notice to return to his obedience. If he merely gives notice and unilaterally applies to take custody of the child, he will be deemed oppressive and his application will not be accepted, because this deprives the mother of her right to care for and supervise the child. The principle established by this judgment is that when the child’s mother relocates with the child to a distant place, the father has no right to take the child from her as long as the marriage remains in force. For the father still has marital authority over the mother and the power to bring her back into obedience. By exercising that power, he can bring his wife under his authority and keep the child in his own care. The same applies to a wife observing ‘iddah, because it is the husband’s responsibility to arrange for her to remain in the marital home during her ‘iddah.”
Second Judgment: The principle established by this judgment, initially issued by the lower court of Beba district in May 1931 and later upheld on appeal by the Banu Suwayf higher court in July 1931, is as follows: “As long as the child’s mother lives in her own city, and the distance between that city and the father’s city is not so great that the father cannot visit the child and return to his own city before nightfall, the father’s excuse that he cannot go to the city of the child’s mother and caregiver, see the child, and return to his own city before nightfall will not be accepted. He will not be permitted, on that basis, to assume responsibility for childcare, whether his being far from that city is voluntary or involuntary.” For in this case the mother is in no way at fault.
The facts of this case were as follows: The plaintiff married the defendant in the defendant’s home city of Banu Mazar, and while the marital bond remained in force, they had a daughter. The wife was divorced in that same city, and her ‘iddah ended with the birth of the child. The defendant then obtained a decree from the Beba court on October 29, 1930, stating that she alone would care for the daughter. At that time, the plaintiff lived in Banu Mazar. Later, when the plaintiff was transferred to Asyut, that decree ceased to apply, and he petitioned the court there for permission to care for the daughter himself. At that time, the girl was no more than two years and eight months old.
Third ruling: This ruling was delivered by the Daminpur court on October 25, 1927, and no appeal was filed against it. The ruling declared that, according to the provisions of the Shariah, it is not lawful for any female caregiver other than the mother to transfer the child from the city where the child’s father resides to another city without the father’s permission. However, according to some jurists, this refers to transferring the child to a place so far away that the father would be unable to return home before nightfall after going to see the child. In the case of transferring the child to a nearer place, there is no difference between the mother and another woman. Indeed, everyone should be familiar with those court rulings that are regarded as practical reflections of the juristic commentaries, for they contain solutions to many problems in real life. It is in light of life’s realities that the courts consider these juristic commentaries.
Chapter Seventeen: Hudud (Islamic Penal Law)
In Arabic, the word “hudud” is the plural of “hadd.” A “hadd” is the extreme limit between two things. Some say that the thing separating one thing from another is called a hadd.
The boundary of a house and the boundary of land are also called hadd or hudud. Lexically, hall means to restrain or prevent. Punishments for sins or crimes are called “hudud” because, in most cases, they prevent the offender from returning to the offense for which he was punished. Sometimes the word hadd or hudud is also applied to the crime itself. For example, Allah says:
تِلْكَ حُدُودُ اللَّهِ فَلَا تَقْرَبُوهَا
“These are Allah’s limits, so do not approach them.” (Al-Baqarah: 187)
In Shariah terminology, a “hadd” is a punishment prescribed for violating the rights of Allah. In other words, these punishments are prescribed to preserve society and its peace and order, for this is the principal objective of Allah’s religion. Since this is a right of Allah, no individual or society may abrogate it or exempt anyone from its consequences. Ta’zir (a minor punishment imposed by an Islamic court) is distinct from hadd, because it is not a punishment prescribed by Allah; rather, it is determined at the judge’s discretion. Qisas is distinct from hadd because it is not a right of Allah but a right of human beings.
Punishable Offenses
The Qur’an and Sunnah have prescribed certain punishments for a number of specific offenses. These are called “hadd offenses,” that is, punishable offenses. They are: fornication, making an unsubstantiated accusation of fornication, theft, drinking alcohol, causing riots and disorder, abandoning Islam, and treason. For anyone who commits any one of these offenses, the Shariah has prescribed a punishment.
The punishment for fornication is flogging for an unmarried person and stoning to death for a married person. Allah says:
وَاللَّاتِي يَأْتِينَ الْفَاحِشَةَ مِنْ نِسَائِكُمْ فَاسْتَشْهِدُوا عَلَيْهِنَّ أَرْبَعَةً مِنْكُمْ ۖ فَإِنْ شَهِدُوا فَأَمْسِكُوهُنَّ فِي الْبُيُوتِ حَتَّى يَتَوَفَّاهُنَّ الْمَوْتُ أَوْ يَجْعَلَ اللَّهُ لَهُنَّ سَبِيلًا
Meaning: “Call four witnesses from among you against those of your women who commit fornication. If they testify, confine them to their homes until death takes them or Allah provides another way for them.” (Surah An-Nisa: verse 15)
الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِنْهُمَا مِائَةَ جَلْدَةٍ وَلَا تَأْخُذْكُمْ بِهِمَا رَأْفَةً فِي دِينِ اللَّهِ إِنْ كُنْتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِّنَ الْمُؤْمِنِينَ
“The woman who commits fornication and the man who commits fornication—flog each of them with one hundred lashes. Let not compassion for them move you in carrying out Allah’s law, if you believe in Allah and the Last Day. And let a group of believers witness their punishment.” (Surah An-Nur: verse 2)
The Messenger of Allah (peace and blessings be upon him) also said: “Take it from me, take it from me. Allah has appointed another way for them (the fornicating women). An unmarried person with an unmarried person (when they commit fornication): one hundred lashes and exile for one year. And a married person with a married person (when they commit fornication): one hundred lashes and stoning to death.”
The punishment for falsely accusing someone of fornication is eighty lashes. Allah says:
وَالَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ ثُمَّ لَمْ يَأْتُوا بِأَرْبَعَةِ شُهَدَاءَ فَاجْلِدُوهُمْ ثَمَانِينَ جَلْدَةً وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا ۚ وَأُولَٰئِكَ هُمُ الْفَاسِقُونَ
“Those who accuse chaste, virtuous women and do not produce four witnesses—flog them with eighty lashes and never accept their testimony. They are indeed transgressors.” (Surah An-Nur: verse 4)
The punishment for theft is amputation of the hand. Concerning this, Allah says:
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِّنَ اللَّهِ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ
“As for the male thief and the female thief, cut off their hands as a recompense for what they have earned and as a deterrent ordained by Allah. Allah is Almighty, All-Wise.” (Al-Ma’idah: verse 38)
The punishment for spreading riots and disorder in the land is execution, crucifixion, exile, or cutting off the hand and foot on opposite sides. Allah says:
إِنَّمَا جَزَاءُ الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَنْ يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُمْ مِنْ خِلَافٍ أَوْ يُنْفَوْا مِنَ الْأَرْضِ ۚ ذَلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ
“The punishment of those who wage war against Allah and His Messenger and strive to spread corruption in the land is that they be killed, crucified, have their hands and feet cut off on opposite sides, or be expelled from the land. That is their disgrace in this world, and they will have a tremendous punishment in the Hereafter.” (Surah Al-Ma’idah: verse 33)
The punishment for drinking alcohol and taking intoxicants is eighty or forty lashes, the details of which will follow. The punishment for abandoning Islam is execution, for the Messenger of Allah (peace and blessings be upon him) said: “Execute whoever abandons Islam.”
The punishment for treason is execution, for Allah says:
وَإِنْ طَائِفَتَانِ مِنَ الْمُؤْمِنِينَ اقْتَتَلُوا فَأَصْلِحُوا بَيْنَهُمَا ۖ فَإِنْ بَغَتْ إِحْدَاهُمَا عَلَى الْأُخْرَىٰ فَقَاتِلُوا الَّتِي تَبْغِي حَتَّى تَفِيءَ إِلَىٰ أَمْرِ اللَّهِ ۚ فَإِنْ فَاءَتْ فَأَصْلِحُوا بَيْنَهُمَا بِالْعَدْلِ وَأَقْسِطُوا ۖ إِنَّ اللَّهَ يُحِبُّ الْمُقْسِطِينَ
“If two groups of believers fight each other, reconcile between them. Then, if one of them attacks the other, fight the transgressing group until it returns to Allah’s command. If it returns, reconcile between them with justice and act fairly. Surely Allah loves those who uphold justice.” (Surah Al-Hujurat: verse 9)
Moreover, the Messenger of Allah (peace and blessings be upon him) said: “After me, much weakness will arise. If anyone seeks to divide the Muslims while they are united, strike him with the sword, whoever he may be.”
The Rationale Behind These Punishments
These punishments both preserve the public interest and ensure public safety. Therefore, they are extremely just punishments.
Let us first consider fornication. Fornication is one of the most obscene and heinous crimes. It is an assault on morality, nobility, and honor; it destroys the family system and promotes many injustices and evil acts that undermine the noble elements of the individual and society. Nevertheless, Islam has adopted strict precautions in proving this offense. It has therefore imposed conditions that are almost impossible to fulfill.
The principal aim of the punishment for falsely accusing someone of fornication is to instill fear, warn, and deter. Falsely accusing chaste, virtuous married women and men of fornication is a grave offense that severs family bonds, causes discord and separation between husband and wife, and brings down the pillars of the family. Yet the family is the foundation of society. When it is sound, society will be sound; when it is destroyed and distorted, society too must be destroyed. The person who commits this offense is punished with eighty lashes only when he fails to produce four witnesses in support of his accusation. Thus, this reflects the highest degree of wisdom and prudence and safeguards the overall interests and welfare of society. This punishment protects people’s honor and dignity from being defiled and preserves their good name and reputation.
Theft is an assault on people’s wealth and an attempt to toy with it, even though wealth is among the things people hold most dear. Therefore, the purpose of amputating the hand of one involved in this offense is to deter others from stealing. In this way, everyone can feel secure about his own property. The benefits of this law have become evident in countries where it has been enforced solely to preserve social peace and security and to protect property from those who violate the Shariah and the law. In the (now-defunct) Soviet Union, the punishment for theft was made more severe because imprisonment contributed nothing to reducing offenses such as theft. There, the death penalty for thieves was carried out by shooting them. Those who spread violence, terrorism, sabotage, and disorder in the country, foment riots, disrupt peace and order, and attempt to overthrow the established government by force are subject at minimum to having a hand and a foot cut off on opposite sides or being expelled from the country. Drinking alcohol and taking intoxicants destroy the normal soundness of the drinker’s mind. Once this is destroyed, a person begins to commit all kinds of obscene and foolish acts. Thus, the Shariah’s punishment of flogging will both protect him from repeating this offense and encourage others to keep away from such offenses.
It Is Obligatory to Enforce the Hudud
Enforcing the hudud or punishments prescribed by the Shariah contains great benefit for humanity. The hudud deter crime, restrain evildoers, and prevent people from engaging in forbidden and prohibited acts. They ensure the security of every individual’s life, honor, property, reputation, freedom, and dignity in society. An-Nasa’i and Ibn Majah narrated from Abu Hurairah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “The enforcement of one hadd on earth is more beneficial to its inhabitants than rain falling upon them for forty days.” Any act that prevents the implementation of the hudud is equivalent to rendering Allah’s law inactive and amounts to waging war against it, for it means establishing wrongdoing and spreading depravity.
Ahmad, Abu Dawud, and Al-Hakim narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever’s intercession obstructs the implementation of a punishment prescribed by Allah is resisting Allah’s authority.” It often happens that people are unaware of the crime committed by an evildoer and see only the punishment carried out on him. Seeing it, they feel distressed and become sympathetic toward him. Regarding this, the Qur’an says that it is contrary to faith, because creating an environment free of crime and raising individuals and society to a higher culture and firm moral standards are demands of faith. Allah says:
الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِنْهُمَا مِائَةَ جَلْدَةٍ وَلَا تَأْخُذْكُمْ بِهِمَا رَأْفَةً فِي دِينِ اللَّهِ إِنْ كُنْتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِّنَ الْمُؤْمِنِينَ
“The woman who commits fornication and the man who commits fornication—flog each of them with one hundred lashes. Let not compassion for them influence you in carrying out Allah’s law, if you believe in Allah and the Hereafter. And let a group of believers witness their punishment.” (An-Nur: 2)
It is worth noting that compassion for society is far more important than compassion for an individual.
Interceding Regarding the Hudud
It is forbidden to intercede against the enforcement of any hadd or to do anything to invalidate a hadd. This would destroy a benefit proven to be definite and established, encourage people to commit offenses, and approve exempting the offender from suffering the consequences of his offense. This prohibition of intercession applies after the complaint has reached the ruler concerned. At that point, intercession would prevent the ruler from performing his duty and open the way to nullifying the punishment. (It should be noted that Ibn Abd al-Barr claimed there is consensus among the scholars and the Muslim ummah that, once a complaint reaches the ruler, enforcing the hadd becomes obligatory for him.) Conversely, concealing the offender and interceding with the ruler before a complaint is filed with the ruler (or the court) is not objectionable.
Abu Dawud, An-Nasa’i, and Al-Hakim narrated that the Messenger of Allah (peace and blessings be upon him) said: “Forgive offenses among yourselves, for once something reaches me, its punishment becomes unavoidable.” Ahmad, Abu Dawud, At-Tirmidhi, An-Nasa’i, Ibn Majah, and Al-Hakim narrated that when the Messenger of Allah (peace and blessings be upon him) decided to amputate the hand of the man who had stolen Safwan ibn Umayyah’s cloak, and Safwan interceded on his behalf, the Messenger of Allah (peace and blessings be upon him) said: “Why did you not intercede before bringing him to me?”
Ahmad, Muslim, and An-Nasa’i narrated from A’ishah (may Allah be pleased with her): A woman from the Banu Makhzum would borrow various things from people and then deny having taken them. The Messenger of Allah (peace and blessings be upon him) ordered that her hand be amputated. Her family went to Usamah ibn Zayd and spoke to him. Accordingly, Usamah interceded with the Messenger of Allah (peace and blessings be upon him) on behalf of the woman. The Messenger of Allah (peace and blessings be upon him) said to him: “O Usamah, do not let me see you intercede regarding a punishment prescribed by Allah.” Then the Messenger of Allah (peace and blessings be upon him) stood and delivered a sermon, saying: “Those before you were destroyed only because when a noble person among them committed an offense, they let him go, but when a weak person committed an offense, they punished him. By Allah, even if Fatimah, the daughter of Muhammad, were to steal, I would cut off her hand.” Thereafter, the hand of the woman from the Banu Makhzum was amputated.
A Hadd Is Waived When Doubt Arises
A hadd is a punishment that harms the offender’s body and reputation. It is not permissible to harm anyone’s honor and dignity or cause anyone distress except for a valid reason. Unless an offense is established by incontrovertible proof free of doubt, it cannot be said that punishment has been imposed for a valid reason. Therefore, when doubt arises, the certain, doubt-free basis required for enforcing the punishment no longer exists. For this reason, accusations and doubts are not to be taken into account or considered, as they are misleading. Ibn Majah narrated from Abu Hurairah that the Messenger of Allah (peace and blessings be upon him) said: “Continue to ward off punishments as long as you can.” At-Tirmidhi narrated from A’ishah (may Allah be pleased with her) that the Messenger of Allah (peace and blessings be upon him) said: “Ward off punishment from the Muslims as much as you can. If you find a way to release him, release him. For it is better for the ruler to err in forgiving than to err in punishing.”
What Are the Types of Doubt?
The Hanafis and Shafi’is have discussed doubt extensively. Each has an independent view on the matter. A summary of these views follows:
According to the Shafi’is, there are three types of doubt:
1. Doubt concerning the place of intercourse:
For example, a husband having intercourse with his menstruating or fasting wife, or having anal intercourse with his wife. Here, doubt exists regarding the prohibited place of intercourse. This is because the wife is under the husband’s authority and he has the right to have intercourse with her. Although intercourse with a menstruating or fasting wife and anal intercourse with one’s wife are not lawful, his right and authority over his wife create a type of doubt. This doubt requires the hadd to be waived, whether or not the person who had intercourse believed the act to be lawful or unlawful. Such belief is not the cause of the doubt; the cause of the doubt is the place of intercourse and the legal authority of the person having intercourse over it.
2. Doubt based on the assumption of the person who had intercourse:
For example, a man has intercourse with a woman found in the bridal chamber, believing her to be his wife, and it later becomes clear that she is not his wife. The basis of the doubt here is the person’s assumption and belief that he was not committing a forbidden act. This doubt waives the hadd. However, if he has intercourse knowing that the woman is forbidden to him, this is not considered doubt.
3. Doubt arising from disagreement among jurists:
This is doubt as to whether the intercourse was lawful or unlawful, based on disagreement among jurists. Disagreements concerning whether certain matters are permissible or impermissible create doubt regarding those matters, and this doubt waives the hadd. For example, Abu Hanifah considers marriage without a wali permissible, while Malik considers marriage without witnesses permissible; most scholars, however, do not consider them permissible. Since there is disagreement about the validity of such marriages, no hadd is enforced if intercourse occurs after such a marriage. The disagreement creates doubt, and doubt waives the hadd. Even if the person who had intercourse considered it unlawful, the hadd would not be enforced, because as long as the jurists disagree about it, that person’s assumption or belief has no effect.
According to the Hanafis, there are two types of doubt:
1. Doubt regarding the intercourse:
Doubt regarding intercourse is considered doubt only for the person who has it; for someone who has no doubt about the intercourse, it is not considered doubt. If a person is uncertain whether the intercourse is lawful or unlawful, and there is no transmitted evidence establishing its lawfulness, this is considered doubt for him. An example is having intercourse during the waiting period with a wife after divorcing her through three talaqs or an irrevocable divorce in exchange for money. The reason for doubt regarding whether the intercourse is lawful or unlawful is that although the marriage ended because of the divorce, it remains valid in the sense that if the divorced woman is pregnant, the child is considered the child of that husband. Such intercourse is unlawful and constitutes fornication subject to the hadd. However, if the person claims that he had doubts and believed the act to be lawful, it is not considered fornication, because he treated his assumption as proof. Although it does not in reality qualify as proof, once he regarded it as proof, this doubt waives the hadd for an offense that can be waived by doubt. For doubt regarding intercourse to be accepted, there must be no proof whatsoever that the act is unlawful, and the person who had intercourse must believe the act to be lawful. If there is proof that it is unlawful, or if he does not believe the intercourse to be lawful, there is no doubt at all. Once it is established that he knew the intercourse was unlawful, enforcing the hadd against him becomes obligatory.
2. Doubt regarding the person with whom intercourse occurred:
The basis of this doubt is uncertainty about the Shariah ruling concerning the woman with whom intercourse occurred. For this doubt to be accepted, it must originate in a ruling of the Shariah. When evidence is found that invalidates the woman’s being prohibited, this doubt becomes established in reality (that is, the hadd will not be enforced). The assumption of the person who had intercourse has no relevance here. Whether he assumed the act to be lawful or unlawful makes no difference, because the doubt is established by legal evidence, not by whether he knew of it.
Who Has the Authority and Responsibility to Enforce the Hadd?
The jurists agree that only the ruler or his representative has the authority and right to enforce the hadd. Citizens have neither the right nor the authority to do so on their own initiative.
At-Tahawi narrated from Muslim ibn Yasar that a Companion used to say: “Zakah, the hudud, taxation, and the Friday prayer are entrusted to the ruler.” At-Tahawi said: We do not know of any Companion who opposed this statement. Al-Bayhaqi narrated that the people of Madinah used to say: “No one other than the ruler has the right to enforce the hudud. However, the master has the authority to enforce the hadd for fornication upon his male and female slaves.” A group of early scholars, including Ash-Shafi’i, held that the master should enforce the hadd upon his male and female slaves. Their proof is the statement of Ali (may Allah be pleased with him): A female servant of the Messenger of Allah (peace and blessings be upon him) gave birth to a child. The Messenger of Allah (peace and blessings be upon him) ordered me to enforce the hadd upon her. I went to her and found that her bleeding had not stopped. I then returned to the Messenger of Allah (peace and blessings be upon him) and informed him of the matter. He said: “When her bleeding stops, enforce the hadd upon her. Enforce the hudud upon your male and female slaves.” (Ahmad, Abu Dawud, Muslim, Al-Bayhaqi, and Al-Hakim)
However, according to Imam Abu Hanifah, the master should not enforce it himself. Rather, the complaint should be brought before the ruler.
The Permissibility of Concealing an Offender in Matters of Hudud
Concealing the criminal activities of those involved in crime and sin can sometimes prove to be a very beneficial remedy for them. As a result of being concealed, they may sometimes sincerely repent on their own after committing an offense and begin living a complete new life. For this reason, Islam has instructed that offenders be concealed and that one should not hasten to expose their offenses.
Saʿīd ibn al-Musayyab said: I heard that, before the revelation of verse 2 concerning the punishment for adultery in Sūrah al-Nūr, a man named Hazzāl of the Banū Aslam came to the Messenger of Allah (peace and blessings be upon him) and accused a certain man of adultery. The Messenger of Allah (peace and blessings be upon him) said to him, “O Hazzāl, it would have been better for you if you had concealed him beneath your cloak.” Hazzāl’s grandson Yazīd later testified that this statement of his grandfather was true.
Ibn Mājah narrated from Ibn ʿAbbās that the Messenger of Allah (peace and blessings be upon him) said: “Whoever conceals the fault of his Muslim brother, Allah will conceal his fault on the Day of Resurrection. And whoever exposes his brother’s fault, Allah will expose his fault, even humiliating him before his family.” Indeed, when concealing a fault is recommended, testifying about that fault cannot also be desirable. It is makrūh tanzīhī. This concealment applies to a person who is not accustomed to adultery and does not publicize it himself. But when the situation reaches the point that he himself makes no effort to preserve his secrecy, rather publicizes and exposes it, then testifying against him is better than refraining from testimony. For the purpose of the Sharīʿah is to free and purify the earth from sin and obscenity. When criminals and sinners repent of them and are reproached and punished for them, the process of purifying the earth from sin becomes established and effective. But when an adulterer displays such boldness that, after committing adultery, he does not care to conceal it and is not embarrassed when it is exposed, there is no longer any assurance that the earth will be freed from sin through repentance. Therefore, when such boldness and recklessness are found in someone, there is no alternative but to adopt the second means of removing his sinfulness. This second means is the ḥudūd, or punishment. On the other hand, a person who commits adultery very secretly and with extreme fear, and regrets it after every occurrence, should have it concealed by whoever witnesses it, even if he commits it once or more.
A Muslim Concealing His Own Fault
Rather, it is obligatory for every Muslim to conceal his own fault and to refrain from exposing it through confession to the ruler, thereby suffering punishment and humiliation. Imām Mālik narrated in the Muwaṭṭaʾ that the Messenger of Allah (peace and blessings be upon him) said: “O people, the time has come for you to refrain from the acts Allah has forbidden. Whoever falls into any of these vile offenses should take advantage of Allah’s concealment and keep himself hidden. But if someone’s offense becomes evident to us, we shall enforce Allah’s Book upon him.”
Expiation for Sins Subject to the Ḥudūd
According to most scholars, when the ḥadd is carried out upon an offender, it becomes an expiation for the sin he committed, and he will not be punished for it in the Hereafter. Al-Bukhārī narrated from ʿUbādah ibn al-Ṣāmit: We were sitting with the Messenger of Allah (peace and blessings be upon him), and he said: “Pledge allegiance to me that you will not associate anything with Allah, commit adultery, steal, or kill a life Allah has forbidden except with due right. Whoever fulfills this pledge will have his reward with Allah. Whoever commits any of these sins and is punished for it, that will be an expiation for him. And whoever commits any of these sins and Allah conceals it—meaning that He saves him from judgment and punishment—his matter rests with Allah. If He wills, He will forgive him; otherwise, He will punish him.”
Enforcing the ḥadd is, on the one hand, an expiation for sin and, on the other, a warning to others. It is simultaneously a remover of sin and a deterrent from sin.
Implementing the Ḥadd in Dār al-Ḥarb
According to a group of scholars, just as the ḥudūd may be implemented in Dār al-Islām (an Islamic state), they may also be implemented in Dār al-Ḥarb (a state ruled by non-Muslims). The command to implement the ḥudūd is universal and comprehensive, not restricted to any particular country. Imām Mālik and al-Layth ibn Saʿd held this view. Abū Ḥanīfah and others, however, said: “When a commander leads an attack in Dār al-Ḥarb (a non-Muslim country), he should not apply the ḥadd to any member of his army. But if he is the commander of an army from Egypt, Syria, Iraq, or a similar Muslim land, he should enforce the ḥudūd in his army.” Imām Abū Ḥanīfah’s reasoning is that if the ḥudūd were enforced in Dār al-Ḥarb, the punished person might be driven to adopt disbelief. This is the stronger opinion, because Allah Himself prohibited the implementation of Allah’s punishments during warfare, as something worse might result. Imāms Aḥmad, Isḥāq, al-Awzāʿī, and others said that the ḥudūd should not be enforced in enemy territory. The Companions were agreed upon this.
The incident of Abū Miḥjan al-Thaqafī is relevant here. He was so accustomed to drinking wine that he could not remain long without drinking. During the Battle of al-Qādisiyyah, he drank wine. Consequently, the commander, Saʿd ibn Abī Waqqāṣ, arrested him and ordered that his hands and feet be tied with ropes. When the two sides faced one another, Abū Miḥjan lamented: “What could be more grievous than the horses being driven forward with their spears while I lie here bound with ropes?” Then he said to Saʿd’s wife: “Release me. I promise you that if Allah returns me safely from the battlefield, I will come back here and put my feet into the ropes again. But if I am killed, you will be rid of me.” Saʿd’s wife untied him. Abū Miḥjan immediately leaped onto a horse of Saʿd’s called al-Balqāʾ, took a spear, and rushed onto the battlefield. There he displayed such valor that not only Saʿd but the entire Muslim army was astonished. They thought he might be an angel who had come to help them. After completely defeating the enemy, he returned to Saʿd’s tent and put his feet back into the restraints himself. Saʿd’s wife informed Saʿd about Abū Miḥjan. Saʿd immediately released him. In view of the extraordinary contribution he had made to strengthening the Muslim army in the battle, Saʿd swore that he would not enforce the punishment for drinking wine upon Abū Miḥjan. Abū Miḥjan then repented, resolving never to drink wine again. Whether the ḥadd for drinking wine was suspended or rescinded here, it was done for the sake of a greater benefit. It was beneficial for the entire Muslim community, even though Saʿd had the authority to enforce the ḥadd upon him.
It Is Prohibited to Enforce a Ḥadd in a Mosque, So That It Does Not Become Defiled:
Abū Dāwūd narrated from Ḥakīm ibn Ḥizām (may Allah be pleased with him): “The Messenger of Allah (peace and blessings be upon him) prohibited carrying out qiṣāṣ, reciting poetry, and enforcing a ḥadd in the mosque.”
May a Judge Issue a Ruling According to What He Personally Knows?
The Ẓāhirī madhhab holds that, in matters of ḥudūd, qiṣāṣ, bloodshed, adultery, and financial disputes, it is obligatory for a judge to adjudicate according to what he personally knows, whether he learned it before or after being appointed as a judge. Indeed, in their view, the ruling a judge gives on the basis of his own knowledge is the strongest ruling, because it is definite factual information for him. He should then rule on the basis of the offender’s confession, and thereafter on the testimony of witnesses. For Allah says:
يَأَيُّهَا الَّذِينَ آمَنُوا كُونُوا قَوْمِينَ بِالْقِسْطِ عُمَدَاءَ لِلَّهِ
“O believers, stand firmly for justice.” (Al-Nisāʾ: 135)
The Messenger of Allah (peace and blessings be upon him) also said: “Whoever among you sees an evil, let him change it with his hand; if he is unable to do so, then with his tongue …” Therefore, it is the judge’s duty to act justly. To leave an oppressor persisting in his oppression and not correct him is not justice. When a judge knows of an injustice, it is obligatory for him to correct it with his own hand. It is his responsibility to give every rightful person his right. If he fails to fulfill this responsibility, the judge becomes an oppressor.
Most jurists, however, hold that it is not permissible for a judge to adjudicate according to what he personally knows. Abū Bakr (may Allah be pleased with him) said: “Even if I were to see a person committing an offense punishable by a ḥadd with my own eyes, I would not enforce the ḥadd upon him until evidence and testimony were presented before me.” Reason also confirms that a judge is an ordinary human being like any other person. Until complete evidence and testimony are presented to him, he has no right to say anything on the basis of whatever he himself has seen. Indeed, if a judge saw someone committing adultery and accused him, but was unable to present complete evidence against him, he would be deemed a false accuser and compelled to undergo the punishment for false accusation. When it is prohibited for a judge to speak on the basis of his own knowledge, it is likewise prohibited for him to act upon it. The basis of this opinion is Allah’s magnificent statement:
فَإِذْ لَمْ يَأْتُوا بِالشُّهَدَاءِ فَأُولَٰئِكَ عِنْدَ اللَّهِ هُمُ الْكَاذِبُونَ
Meaning: “Since they did not produce the witnesses, they are, in Allah’s judgment, liars.” (Sūrah al-Nūr, 13)
1. Drinking Wine
The Gradual Steps in Prohibiting Wine
Before the Messenger of Allah (peace and blessings be upon him) migrated from Makkah to Madīnah, people drank wine extensively. After the migration, the Muslims’ questions about wine and gambling increased greatly, because they witnessed many harmful effects of both. Then Allah Most High revealed:
يَسْأَلُونَكَ عَنِ الْخَمْرِ وَالْمَيْسِرِ ۖ قُلْ فِيهِمَا إِثْمٌ كَبِيرٌ وَمَنَافِعُ لِلنَّاسِ وَإِثْمُهُمَا أَكْبَرُ مِنْ نَفْعِهِمَا
Meaning: “They ask you about wine and gambling. Say: In them is great sin and some benefits for people. But their sin is greater than their benefit.” (Sūrah al-Baqarah, 219)
That is, the sin of wine and gambling is great, because both cause immense religious and material harm. They also provide people with some benefits. These benefits are material: considerable profit in the wine trade, and the opportunity to earn money without effort through gambling. But the sin involved in both is greater than their benefits. This indicated that the aspect of their prohibition was stronger, although they were not explicitly declared forbidden. Some time later, a verse was revealed prohibiting drinking wine during prayer. Because people were intensely attached to wine and had made it part of their lives, it had to be prohibited gradually in this manner. Allah says:
يَأَيُّهَا الَّذِينَ آمَنُوا لَا تَقْرَبُوا الصَّلوةَ وَأَنْتُمْ سُكَى حَتَّى تَعْلَمُوا مَا تَقُولُونَ
Meaning: “O believers, do not approach prayer while you are intoxicated until you know what you are saying.” (Al-Nisāʾ: 43)
The reason for the revelation of this verse was that a man was praying while intoxicated from drinking wine, and he recited Sūrah al-Kāfirūn incorrectly in this manner:
“Say: O disbelievers, I worship what you worship.” In fact, the sūrah says: “I do not worship what you worship.”
This was the final preparation for prohibiting wine. A short while later, the following was revealed, declaring wine categorically forbidden:
يأَيُّهَا الَّذِينَ آمَنُوا إِنَّمَا الْخَمْرُ وَالْمَيْسِرُ وَالْأَنْصَابُ وَالْأَزْلَامُ رِجْسٌ مِنْ عَمَلِ الشَّيْطَنِ فَاجْتَنِبُوهُ لَعَلَّكُمْ تُفْلِحُونَ إِنَّمَا يُرِيدُ الشَّيْطَنُ أَنْ يُوقِعَ بَيْنَكُمُ الْعَدَاوَةَ وَالْبَغْضَاءَ فِي الْغَمْرِ وَالْمَيْسِرِ وَيَصُدَّكُمْ عَنْ ذِكْرِ اللَّهِ وَعَنِ الصَّلُوةِ ، فَهَلْ أَنْتُمْ مُنْتَهُونَ
Meaning: “O believers! Wine, gambling, idols, and divining arrows are nothing but filth from the work of Satan. So avoid them, that you may prosper. Satan only seeks to stir up hostility and hatred among you through wine and gambling and to hinder you from the remembrance of Allah and from prayer. Will you not then desist?” (Al-Māʾidah: 90–91)
It is clear here that Allah Most High associated gambling, idols, and divining arrows with wine and issued the ruling concerning all of them that they are:
1. Filthy and impure acts;
2. The work, incitement, and conspiracy of Satan;
3. For these reasons, believers must abstain from them, so that people may attain goodness and success;
4. Satan’s purpose in inciting people to drink wine and gamble is to create hostility and hatred among believers; this is their worldly harm;
5. Another purpose of Satan is to keep believers from remembering Allah and make them heedless of prayer; this is their harm in the Hereafter;
6. All this requires that these things be abandoned completely. This is the last verse revealed concerning the ruling on wine, and it definitively prohibited wine.
ʿAbd ibn Ḥumayd narrated from ʿAṭāʾ: The first verse revealed concerning the prohibition of wine was verse 219 of Sūrah al-Baqarah: “They ask you about wine and gambling. Say: In them is great sin and many benefits. But their sin is greater than their benefit.” After this verse was revealed, some people said:
“Since wine has some benefit, we will drink it for that reason.” Others said: “It has no benefit; it contains only sin.” Then verse 43 of Sūrah al-Nisāʾ was revealed: “O believers! Do not approach prayer while intoxicated until you understand what you are saying.” Some people then said, “We will drink wine and remain at home.” Others said, “There is no good in anything that prevents us from praying in congregation with the Muslims.” Then verses 90–91 of Sūrah al-Māʾidah were revealed: “O believers! Wine, gambling, idols, and divining arrows are filthy works of Satan … Will you not then abstain from them?” Through these verses they were finally prohibited, and the Muslims completely abandoned drinking wine. This final prohibition was revealed after the Battle of al-Aḥzāb. When ʿUmar (may Allah be pleased with him) heard the ending of the verse—“Will you not then abstain from them?”—he understood it to be a much sterner threat than the command “Abstain.” He immediately said: “We abstain.” The Messenger of Allah (peace and blessings be upon him) sent a herald to announce in the streets and lanes of Madīnah: “Take note: wine has become forbidden.” The wine jars were immediately smashed, and wine flowed through the streets and lanes of Madīnah.
Qatādah said: Allah prohibited wine in Sūrah al-Māʾidah after the Battle of al-Aḥzāb. This battle took place in the fourth or fifth year after the Hijrah. Ibn Isḥāq said: Wine was prohibited during the expedition against Banū al-Naḍīr in the fourth year after the Hijrah. Al-Dimyaṭī said: Wine was prohibited in the sixth year after the Hijrah, the year of al-Ḥudaybiyah.
Islam’s Strictness in Prohibiting Wine
The prohibition of wine is entirely consistent with Islam’s principles and ideals. For the goal of all Islamic principles and ideals is to develop a strong personality physically, mentally, and intellectually. There is no doubt that wine weakens personality and destroys intelligence.
A poet said: “I drank wine, and as a result my intellect became deluded. This is how wine impairs and confuses the intellect.” When the intellect becomes inactive, a person turns into a vile animal, and countless evil acts are committed by him. Murder, war, adultery, divulging secrets, and treason against one’s country are among the harmful effects of drinking wine. These harmful effects affect the drinker himself, as well as his friends and neighbors, equally.
It is narrated from ʿAlī (may Allah be pleased with him): One day he was with his uncle Ḥamzah. ʿAlī had two old she-camels. He intended to gather the fragrant plant idhkhir, carry it on the she-camels, and take it with a Jewish goldsmith to sell to other goldsmiths, so that he could use the proceeds to hold Fāṭimah’s wedding feast. At that time, his uncle Ḥamzah was drinking wine with some Anṣār. A female singer was singing with him. (This was before the rulings concerning the veil and wine were revealed.) The singer sang a song that encouraged Ḥamzah to slaughter the two she-camels and eat the choicest parts of their bodies. As soon as he heard the song, Ḥamzah sprang up, slaughtered the two she-camels, cut off their humps, and removed their livers. When ʿAlī saw this, he was so distressed that he could not hold back his tears, and he complained about Ḥamzah to the Messenger of Allah (peace and blessings be upon him). The Messenger of Allah (peace and blessings be upon him) went to Ḥamzah, accompanied by ʿAlī and Zayd ibn Ḥārithah. He became angry with him and began reproaching him. Ḥamzah was intoxicated, and his eyes had turned red. He looked at the Messenger of Allah (peace and blessings be upon him) and his companions and said: “You are nothing but the slaves of my father.” The Messenger of Allah (peace and blessings be upon him) realized that Ḥamzah was intoxicated, so he turned away and left with his companions. This is how wine plays with the drinker’s mind and deprives him of understanding. For this reason, Islam called it “Umm al-Khabāʾith,” meaning the mother of all filth. ʿAbdullah ibn ʿAmr narrated that the Messenger of Allah (peace and blessings be upon him) said: “Wine is the mother of every filthy act.” ʿAbdullah ibn ʿAmr said: “Wine is the mother of all obscenity and drinking it is the vilest of the major sins. Whoever drinks wine abandons prayer and even commits adultery with his own mother, maternal aunt, and paternal aunt.”
After calling wine the mother of all filth, Islam made its prohibition even stricter. It cursed the drinker and everyone associated with it, and declared him outside the faith. It is narrated from Anas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) cursed ten people connected with wine: the one who produces it, the one for whom it is produced, the one who drinks it, the one who transports it, the one to whom it is transported, the one who serves it, the one who sells it, the one who consumes its proceeds, the one for whom it is purchased, and the one who purchases it.” (Ibn Mājah, al-Tirmidhī) It is narrated from Abū Hurayrah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “An adulterer does not commit adultery while he is a believer, a wine-drinker does not drink wine while he is a believer, and a thief does not steal while he is a believer.” (Aḥmad, al-Bukhārī, Muslim, Abū Dāwūd, al-Tirmidhī, al-Nasāʾī)
The explanation of this ḥadīth is that when a wine-drinker, adulterer, or thief commits such an evil act, genuine faith is not present in him. Faith means believing that these acts are forbidden and prohibited, and that they are causes of Allah’s punishment and anger. If he truly believed that they caused Allah’s punishment and anger, that belief would compel him to avoid them. Some say that faith departs from a person who commits such a major sin and remains away from him as long as he persists in that sin, returning after he repents. Others say that what is meant is complete faith. Imām al-Ghazālī, however, expressed the view that the first opinion is more correct.
A further punishment prescribed in this world for one who drinks wine is that he will not be able to drink the pure wine of the Hereafter. The Messenger of Allah (peace and blessings be upon him) said: “Whoever drinks wine in this world and does not repent will not drink it in the Hereafter, even if he enters Paradise.”
The Prohibition of Wine in Christianity
Just as wine is forbidden in Islam, it is also forbidden in Christianity. The consensus fatwa issued by the Christian priests of Egypt in 1922 may be summarized as follows:
“All heavenly scriptures have commanded humankind to avoid intoxicating substances.” The Christian priests of Syria likewise declared all intoxicants forbidden, citing the Holy Scriptures, and said: “In short, all intoxicating drugs are categorically forbidden in all heavenly scriptures, whether they are made from grapes, barley, dates, honey, apples, or anything else.” Paul said to Aphsumbālī: “Do not become intoxicated by drinking wine … for the intoxicated do not inherit the kingdom of heaven.”
The Harmful Effects of Wine
The book al-Taʿammudun al-Islāmī, written by Dr. ʿAbd al-Wahhāb Khalīl, describes the physical, mental, and moral harms of wine, as well as the harmful effects these have on the lives of individuals and society. It states that if we ask religious leaders, medical scientists, moral experts, sociologists, and economists about intoxicants and narcotic substances, they will all give the same answer: consuming them is strictly prohibited, because they cause grave harm.
Religious leaders say: It is forbidden, because it is the mother of all filth. Medical scientists say: It is the most serious threat to humankind—not only because its poisonous effects directly damage the body, but also because its long-term consequence is tuberculosis. Moreover, wine weakens the human body and reduces its resistance to many diseases. It damages all the internal organs, especially the stomach, and causes severe harm to the nervous system. Therefore, it is not surprising if it proves to be a cause of most nervous disorders and a principal cause of illnesses such as insanity and depression. And this affects not only the drinker, but also his descendants.
Indeed, wine and narcotic substances are undoubtedly a terrible curse upon humankind, a cause of every sorrow, deprivation, and misfortune, and a germ of poverty and humiliation. This vile thing will destroy any nation upon which it falls. It will utterly ruin it in every physical, spiritual, and intellectual respect.
Moralists say: Since it is people’s responsibility to preserve honesty, chastity, courtesy, propriety, nobility, and generosity, they should not consume anything that destroys these noble qualities. Sociologists say: Society should not be polluted by any activity that disrupts its peace and order, so that the highest possible degree of peace and order may be maintained. Whenever social peace and order are disrupted, chaos appears. It is also true that chaos creates conflict, strife, and division, while division benefits the enemies.
Economists say: If a person spends even one unit of money for the benefit of society, it strengthens society and the country. But if even one unit is spent on something harmful to society, it brings ruin upon society and the country. Thus, the billions spent needlessly on various wines and narcotics cause enormous harm to the country. They collapse our economy and bring about the ruin of our humanity and nobility.
For these reasons, we believe that our conscience commands us to abstain from drinking alcohol. And if the government wishes to seek the advice of experts on this matter, we have mentioned that all scientists agree regarding its harmfulness, so that it may obtain this advice without effort or expense. Since the government is itself part of the people, the people naturally expect their government to remove whatever is harmful and painful for them. For rulers are responsible for those whom they govern.
If the people are prevented from using intoxicants, they will grow up healthy, strong, resolute and sound-minded. This is a very important factor in improving the nation’s health. Likewise, it is a principal means of improving its moral, social and economic standards. For the fewer the number of intoxicant users, the fewer the troubles faced by the various ministries, especially the Ministry of Law. The number of defendants in courts and prisoners in jails may gradually fall to zero one day, and the prisons may become free of inmates and be transformed into centers for various social reforms. This is civilization and culture. This is the secret of progress and advancement. And this is the measure of the development of nations. In this way, we can cooperate with one another to overcome our losses. The opportunity for productive work in this field is unlimited and the scope is broad. Allah says:
وَقُلِ اعْمَلُوا فَسَيَرَى اللَّهُ عَمَلَكُمْ وَرَسُولَهُ وَالْمُؤْمِنُونَ
Meaning: Say, “Work, and Allah, His Messenger and the believers will see your deeds.” (Surah al-Tawbah: 105)
The harms of alcohol and intoxicants have been proven beyond doubt. Therefore, some sound-minded countries became motivated to prevent the consumption of all intoxicating drinks, including alcohol. Among the countries that endeavored to prevent alcohol and intoxicant use, the United States of America played the leading role. Sayyid Abul A‘la Maududi wrote in his book Tanqihat (The Conflict between Islam and Western Civilization): “The American government prohibited alcohol and made every possible effort to eradicate it from that country. It launched a massive campaign to publicize its harms and condemn its consumption through all modern media of communication, such as newspapers, periodicals, pictures, films, meetings and gatherings. The United States spent more than sixty million dollars on its anti-alcohol campaign. The books and pamphlets it circulated amounted to ten billion pages. To implement the prohibition law, it spent no less than 250 million pounds over fourteen years. For this purpose, it sentenced 300 people to death, imprisoned 532,335 people, imposed fines of 16 million pounds, and confiscated property worth 404 million pounds. But all this only increased the Americans’ addiction to alcohol and their obstinacy. Eventually, in 1933, the government was forced to repeal the law and legalize unrestricted drinking throughout the country.”
Despite enormous efforts, the United States of America failed completely to prohibit alcohol. But since Islam trained the people on the basis of religious inspiration, planted in their hearts the seed of faith in truth and justice, and invigorated their consciences with the teachings of the finest ideals and righteous deeds, it did not need to do so much or make such efforts. Only one statement was uttered by Almighty Allah, and as soon as it was uttered, everyone’s heart accepted it without objection. Bukhari and Muslim narrated from Anas ibn Malik: “Apart from what you call grape or date extract, we had no other alcohol. I was serving this to Abu Talhah, Abu Ayyub and several other Companions of the Messenger of Allah in our house. Suddenly, a man came and said, ‘Have you heard the news?’ We said, ‘No.’ He said, ‘Alcohol has been declared unlawful.’ Immediately, one man said, ‘O Anas, pour out these jars.’ Anas said: ‘After that, no one asked a single question about it, nor did anyone investigate it after the man had delivered the news.’”
This is how faith shapes believers.
What is alcohol?
Alcohol consists of the familiar liquid drinks prepared by transforming certain fruits or grains into an intoxicant and producing in them an element of intoxication or drunkenness that causes the loss of reason. This transformation occurs through certain living organisms whose presence is considered necessary for producing the components required in the process of creating intoxication. It is called khamr, or alcohol, because it covers the intellect. (The lexical meaning of the word khamr is “to cover.”) In other words, alcohol destroys a person’s reason and powers of perception. This is the medical definition of alcohol.
Anything that causes intoxication, drunkenness or inebriation is considered alcohol. What substance it is made from is irrelevant. Whatever causes intoxication is alcohol in the view of the Shariah and falls under the rulings governing alcohol, whether it is made from grapes, dates, honey, wheat, barley or anything else. All of these are prohibited forms of alcohol. Its harmful effects are pervasive. It also prevents people from remembering Allah and performing prayer, and creates hostility, hatred and rancor among people.
The Shariah makes no distinction between things possessing the same characteristics. Just as it does not declare one of two intoxicating drinks lawful and the other unlawful, it does not declare a small quantity of one such drink lawful while prohibiting a small quantity of the other. The statements of the Qur’an and Sunnah on this matter are clear and decisive, leaving no room for doubt. Several statements are quoted below:
1. Ahmad and Abu Dawud narrated from Ibn Umar that the Messenger of Allah said: “Every intoxicant is alcohol, and every alcohol is unlawful.”
2. Bukhari and Muslim narrated that Umar ibn al-Khattab said while standing on the pulpit of the Messenger of Allah: “O people, listen! The ruling prohibiting alcohol has been revealed. Alcohol is made from five things: grapes, dates, honey, wheat and barley. Whatever renders the intellect ineffective is alcohol.”
The declaration of the Commander of the Believers, Umar, is definitive and enduring. For he was more knowledgeable about both the Shariah and the Arabic language. It has not been reported that any Companion opposed the view he held.
3. Muslim narrated from Jabir that a man from Yemen asked the Messenger of Allah about a drink consumed in their country: was it unlawful or lawful? The Messenger of Allah asked him: “Does the drink cause intoxication?” He replied, “Yes.” The Messenger of Allah then said: “Every intoxicant is unlawful.” “Allah has pledged to make the drinker of an intoxicant drink the pus of the inhabitants of Hell.”
4. It was narrated from Nu‘man ibn Bashir that the Messenger of Allah said: “Alcohol is made from grapes, alcohol is made from dates, alcohol is made from honey, alcohol is made from barley, and alcohol is made from wheat.” (Abu Dawud, Tirmidhi, Nasa’i and Ibn Majah)
5. It was narrated from Aishah: “Every intoxicant is unlawful. Whatever drink intoxicates when consumed in sixteen ratls, even a palmful of it is unlawful.”
6. Ahmad, Bukhari and Muslim narrated from Abu Musa al-Ash‘ari that he said: “O Messenger of Allah, we used to prepare two drinks in Yemen. One was bit‘, an intoxicating drink made by boiling honey until it thickened, and the other was mizr, an intoxicant made by boiling meat and barley together until they thickened. Give us a ruling concerning them.” Abu Musa al-Ash‘ari said: The Messenger of Allah possessed an extraordinary God-given ability to express comprehensive meanings in brief words. He simply said: “Every intoxicant is unlawful.”
7. Ali said that the Messenger of Allah prohibited drinking barley extract. —Abu Dawud and Nasa’i.
This is the view of the noble Companions, the Successors and most jurists. But it is completely contrary to the proofs cited earlier. It also contradicts the view of the regional jurists, the Ahl al-Hadith and Imam Muhammad, the disciple of Imam Abu Hanifah. Nevertheless, fatwas are issued according to this view. The jurists of Iraq, Ibrahim al-Nakha‘i, Sufyan al-Thawri, Ibn Abi Layla, Shurayk, Ibn Shubruma, all the remaining jurists of Kufa, most of the jurists of Basra and Abu Hanifah say: Alcohol made from grape extract is unlawful, whether it is little or much. If an extract from any fruit or grain other than grapes causes intoxication when consumed in a large quantity, then consuming a large quantity is unlawful. If consuming a small quantity does not cause intoxication, then consuming a small quantity is lawful. Ibn Rushd says in his book The Distinguished Jurist’s Primer:
“Most of the jurists of the Hijaz and most hadith scholars say: Any extract that causes intoxication is unlawful, whether little or much. Ibrahim al-Nakha‘i, Sufyan al-Thawri, Ibn Abi Layla, Shurayk, Ibn Shubruma, Abu Hanifah, all the other jurists of Kufa and most scholars of Basra said: Of all extracts that intoxicate, only the intoxicating component within them is unlawful, not the extract itself. Their disagreement contradicts both hadith and reason.”
The Hijazi jurists establish the correctness of their view in two ways: by citing hadiths on the subject and by applying the name alcohol to all extracts. The most famous hadith cited by the Hijazis is this hadith of Aishah narrated by Malik: When the Messenger of Allah was asked about honey extract, he said: “Any drink that causes intoxication is unlawful.” (Bukhari) Yahya ibn Ma‘in said: Among all the hadiths narrated concerning the prohibition of intoxicants, this is the soundest. Muslim narrated from Ibn Umar that the Messenger of Allah said: “Every intoxicant is alcohol, and every alcohol is unlawful.”
The two hadiths cited by Bukhari and Muslim are authentic. Everyone agrees about the first, whereas only Muslim judged the second to be authentic. Tirmidhi, Abu Dawud and Nasa’i narrated from Jabir ibn Abdullah that the Messenger of Allah said: “Whatever intoxicates when consumed in a large quantity, a small quantity of it is also unlawful.” There has been disagreement concerning the meaning of this hadith.
Their second argument is that all extracts are called alcohol. Two approaches are adopted to establish the validity of this argument. One is to validate the name in light of its derivational origin, and the other is to validate it in light of common usage. The derivational approach is as follows: according to lexicographers, the sole reason the Arabic word khamr (alcohol) is called khamr is that it makes the intellect khamr—that is, it covers or veils it. According to this explanation, every substance that renders the intellect inactive may be called khamr, or alcohol. The experts in usul al-fiqh (the principles of Islamic jurisprudence) disagree about this method of naming it khamr. The second approach, based on common usage, is explained as follows: although an extract cannot be called khamr, or alcohol, in the lexical sense, it may be called khamr, or alcohol, as a Shariah term. Evidence for this is provided by the hadith of Ibn Umar cited earlier and by this hadith narrated from Abu Hurayrah. Abu Hurayrah said that the Messenger of Allah said: “Alcohol is made from two trees: the grapevine and the date palm.” As the best evidence that all extracts are unlawful according to the jurists of the Hijaz, this hadith of Ibn Umar is also cited: “Alcohol is made from grapes, alcohol is made from honey, alcohol is made from raisins, and alcohol is made from wheat. I forbid you to consume anything that causes intoxication.”
On the other hand, the jurists of Kufa derive their proof from the literal meaning of verse 67 of Surah al-Nahl. The verse is:
وَمِنْ ثَمَرَتِ النَّخِيلِ وَالْأَعْنَابِ تَتَّخِذُونَ مِنْهُ سَكَرًا وَرِزْقًا حَسَنًا ، إِنَّ فِي ذَلِكَ لَآيَةً لِقَوْمٍ يَعْقِلُونَ
“You take the fruits of dates and grapes as a source of intoxicants and good provision.” They also present a similar argument based on several other hadiths reported with this meaning and on analogy. Their argument from the verse is that only intoxication itself is essentially unlawful. If the substance were unlawful, Allah would not have called it “good provision.” Among the hadiths cited as evidence on this matter, the most famous is this: Ibn Abbas said that the Messenger of Allah said: “Alcohol was prohibited because of its essential substance, while intoxication was prohibited for another reason.” Indeed, the meaning of this hadith is clear. No alternative interpretation is possible. However, the people of the Hijaz have declared this hadith weak. It was narrated from Abu Burdah ibn Niyar that the Messenger of Allah said: “I had forbidden you to drink alcohol. Now you may drink, but beware of becoming intoxicated.” —Tahawi.
Ibn Masud said: “When extract was first prohibited, I witnessed it just as you did. Later, when it was made lawful again, I witnessed and remembered that as well. But you have forgotten the latter.”
Abu Musa al-Ash‘ari said: When the Messenger of Allah sent Muadh and me to Yemen, we said: “O Messenger of Allah, there are two kinds of drinks in Yemen, one made from wheat and the other from barley. Which one should we drink?” The Messenger of Allah said: “Drink, but do not become intoxicated.” —Tahawi.
As for the proof presented from the perspective of reasoning, it is that the Qur’an clearly states the reason for prohibiting alcohol: it prevents people from remembering Allah and creates hostility and hatred. Allah says:
إِنَّمَا يُرِيدُ الشَّيْطَنُ أَنْ يُوقِعَ بَيْنَكُمُ الْعَدَاوَةَ وَالْبَغْضَاءَ فِي الْغَمْرِ وَالْمَيْسِرِ وَيَصُدَّكُمْ عَنْ ذِكْرِ اللَّهِ وَعَنِ الصَّلوة
Meaning: “Satan only seeks to sow hostility and hatred among you through alcohol and gambling and to prevent you from remembering Allah.” (Surah al-Ma’idah: as cited above)
This cause exists only in the quantity that produces intoxication, not in a lesser quantity. Therefore, consuming the quantity that makes a person drunk is unlawful. However, alcohol concerning which there is consensus that it is unlawful whether consumed in a small or large quantity is an exception to this rule. In fact, this type of analogy is considered to fall within the statements of the Qur’an and Sunnah, because the Shariah itself has indicated its effective cause.
The Qadi said: “It appears to me—and Allah knows the truth—that although the statement of the Messenger of Allah, ‘Every intoxicant is unlawful,’ may allow for the interpretation that it refers not to every intoxicating substance itself but to the quantity whose consumption causes drunkenness or intoxication, the stronger apparent interpretation is that it declares every intoxicating or narcotic substance unlawful, not merely the quantity that causes drunkenness. Although certain harm is certainly present in a large quantity, it is not impossible that Allah and His Messenger prohibited both small and large quantities of an intoxicating substance in order to be strict in blocking the means and ways leading to drunkenness. Moreover, it is established by consensus from the rulings of the Shariah that the Shariah prohibited alcohol in its entirety, not merely a large quantity. Therefore, whatever contains the cause of alcohol—namely drunkenness, intoxication or inebriation—is considered alcohol. Those who believe that there is a distinction between small and large quantities bear the responsibility of producing proof for that distinction. Even despite the denial of those who do not accept as authentic the hadith, ‘Whatever intoxicates when consumed in a large quantity, a small quantity of it is also unlawful,’ the foregoing statement remains unchanged. For although this report is disputed, it has been presented as a statement of revelation, and it is not permissible to reject a statement of revelation merely on the basis of human analogy or rational argument. Furthermore, the Shariah itself has clearly stated that alcohol contains both harm and benefit. Allah said: ‘Say: In them is great sin and benefits for people.’ Reason and analogy would require that, if removing harm in order to obtain benefit were desirable, a small quantity of alcohol could be made lawful and a large quantity unlawful. But when the Shariah gave precedence to the ruling of harm over the ruling of benefit and prohibited alcohol whether in a small or large quantity, this ruling applies to every substance in which the cause of alcohol’s prohibition is found. In other words, it is unlawful regardless of quantity. However, when a distinction established by the Shariah is proven, it will be an exception to this rule.”
The jurists also agree that consuming extract remains lawful so long as it does not develop intense intoxication like alcohol. For the Messenger of Allah said: “Drink extract, but know that every intoxicant is unlawful.” It is also known that the Messenger of Allah used to drink extract, but would pour it out on the second or third day. From this, the jurists disagreed on two matters: first, which vessels may be used to store extract; and second, the extract of ripe and unripe dates and the extract of dried dates and raisins.
Some Well-Known Types of Alcohol
Alcohol is available on the market under various names. These are divided into different classes according to whether their alcohol content is low or high. Examples include brandy, whisky, rum and liqueur. Their alcohol content ranges from 40 to 70 percent. Gin, Hollands and genever, on the other hand, contain 33 to 40 percent alcohol. Port, sherry and Madeira contain 15 to 25 percent alcohol. Lighter wines such as claret, hock, champagne and Burgundy contain 10 to 15 percent. Still lighter beers, such as ale, porter, stout and Munich, contain 2 to 9 percent alcohol. Among the low-alcohol drinks of the last type, braza and kasab are also noteworthy.
Drinking Juice and Stored Extract
It is permissible to drink fruit juice or extract until it becomes sharp and foamy. Abu Dawud, Nasa’i and Ibn Majah narrated from Abu Hurayrah that he said: “I learned that the Messenger of Allah was fasting, so I waited for him to break his fast with fruit juice stored in a gourd. Then I brought it to him and found that it had become foamy. Seeing this, the Messenger of Allah said: ‘Throw it against this wall, for it is the drink of one who does not believe in Allah and the Hereafter.’” Ahmad narrated that Ibn Umar said regarding extract: “Drink it as long as its devil has not affected it.” He was asked: “After how many days does its devil affect it?” He replied: “After three days.” Muslim and others narrated from Ibn Abbas that he would soak raisins in water for the Messenger of Allah. He would drink that water on the same day, the following day and until the afternoon of the next day. Then he would give it to the servant to drink or throw it away. Abu Dawud said: Giving it to the servant to drink meant that signs of alteration had appeared in it, and this occurred after three days. Muslim narrated that Aishah would prepare fruit extract for the Messenger of Allah in the morning and give it to him after the evening meal. If any remained, she would pour it out or empty the vessel. Then she would prepare extract again at night. In the morning, he would drink it after breakfast. The waterskin would be washed in the morning and evening. It should be noted that it is well known from the biography of the Messenger of Allah that he never drank alcohol, neither before nor after prophethood. He drank only extract that had not yet turned into alcohol.
When Alcohol Turns into Vinegar
The scholars agree that when alcohol turns into vinegar on its own, it is permissible to drink it. But when there is an intention to turn it into vinegar, the jurists have held three views: 1. Unlawful. 2. Disliked. 3. Permissible. The last view is held by Umar ibn al-Khattab, al-Shafi‘i, Ahmad, Sufyan al-Thawri, Ibn al-Mubarak, Ata ibn Abi Rabah, Umar ibn Abd al-Aziz and Abu Hanifah. This disagreement arose from the conflict between analogy, that is, reasoning, and hadith, as well as from differences in interpreting the hadith. Abu Dawud, Muslim and Tirmidhi narrated from Anas ibn Malik: “Abu Talhah asked the Messenger of Allah: ‘Some orphans have inherited ownership of some alcohol. What should be done with it?’ The Messenger of Allah said: ‘Pour it away.’ Abu Talhah said: ‘May I not turn the alcohol into vinegar?’ The Messenger of Allah said: ‘No.’” Whoever understood this hadith as a measure intended to block the means to what is unlawful regarded intending to turn it into vinegar as disliked. Whoever saw that the hadith prohibited turning alcohol into vinegar without mentioning any reason regarded the act as unlawful. This hadith may also be understood to indicate that those who hold that the prohibition of a prohibited substance does not return after it has been destroyed do not consider alcohol that has turned into vinegar unlawful. Khattabi said: “This hadith unequivocally shows that attempting to turn alcohol into vinegar is unlawful. Had it been permissible, transforming the property of orphans into a lawful substance in this way, preserving it and increasing it through investment would have been an even more virtuous act, since preserving the property of orphans is obligatory. Moreover, the Messenger of Allah prohibited destroying any property. It is obvious that throwing alcohol away amounts to destroying it. Thus it is understood that alcohol cannot be purified through any transformation process or converted into ordinary property.”
The analogy or reasoning presented against declaring vinegar unlawful is that the well-known principle of the Shariah is that its various rulings apply to different things. Alcohol and vinegar are two different things. Alcohol is unanimously unlawful, while vinegar is unanimously lawful. Once alcohol has transformed into vinegar, it must therefore be lawful, regardless of the means by which the transformation occurred.
Intoxicants
Everything discussed so far concerned Allah’s ruling regarding the drink called khamr, or alcohol. But substances that are not drinks yet cause the loss of reason just like alcohol—such as bhang, marijuana, opium and the like—are also completely unlawful. For they are intoxicating and cause drunkenness. We previously cited a hadith narrated by Muslim in which the Messenger of Allah said: “Every intoxicant is alcohol, and every alcohol is unlawful.”
The Mufti of Egypt, Shaykh Abd al-Majid Salim (may Allah have mercy on him), was asked about the Shariah ruling concerning intoxicants. The questions were as follows:
1. Is it permissible to consume intoxicants?
2. Is it permissible to trade in intoxicants and use them as a means of making commercial profit?
3. Is it permissible to sell bhang and opium, manufacture intoxicants from them, cultivate them, consume them and trade in them?
4. Is profit earned from selling intoxicants lawful or unlawful? In response, he said:
Consuming Intoxicants:
1. Consuming these intoxicants is unquestionably haram, because they harm the body and distort the intellect. Therefore, when the Shariah has declared wine, which is less harmful than these, to be haram, it is utterly impossible that it would declare these lawful. For this reason, some Hanafi scholars said: “Whoever believes that bhang and opium are lawful is a kafir and an innovator.” This proves that their prohibition is clear and definitive to them. Moreover, since most intoxicants of this kind cloud and disable the intellect, and those who consume them derive such pleasure from them that they remain intoxicated and addicted throughout their lives, they too fall under the category of wine and intoxicating substances that Allah the Almighty declared haram in His Book and the hadith of the Messenger of Allah (peace and blessings be upon him). Shaykh al-Islam Ibn Taymiyyah said the following in summary in his book Al-Siyasah al-Shar‘iyyah (Islamic Governance):
‘Hashish’ (cannabis, bhang, and the like) is haram. The Shariah punishment must also be enforced on those who consume it, just as on wine drinkers. It is more vile and reprehensible than wine, because it distorts and destroys the intellect and character, even turning a person into an effeminate and cowardly individual. It also prevents people from remembering Allah and performing prayer. It is included among the wine and intoxicating substances that Allah and His Messenger declared haram. Abu Musa al-Ash‘ari (may Allah be pleased with him) said: “O Messenger of Allah, while we were in Yemen, we used to prepare two kinds of drinks. One was called bit‘, made by leaving honey in a secluded place until it became thick and solid. The other was called mizr, made by extracting an essence from barley and wheat and leaving it in a secluded place until it became thick and solid.” The Messenger of Allah (peace and blessings be upon him) possessed the extraordinary ability to express broad meanings in few words. In answer to my question, he merely said: “Every intoxicant is haram.” —Bukhari and Muslim.
Nu‘man ibn Bashir (may Allah be pleased with him) said: The Messenger of Allah (peace and blessings be upon him) said: “Wine is made from wheat, wine is made from barley, wine is made from raisins, wine is made from dates, and wine is made from honey. I forbid drinking anything that intoxicates a person.” —Abu Dawud.
It was narrated from Ibn Umar (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Every intoxicant is wine, and every wine is haram.” —Muslim.
Aishah (may Allah be pleased with her) said: The Messenger of Allah (peace and blessings be upon him) said: “Every intoxicating substance is haram. Whatever intoxicates when consumed in a large quantity is also haram in a small quantity.” —Tirmidhi.
It was narrated from Jabir (may Allah be pleased with him): A man asked the Messenger (peace and blessings be upon him) about a drink called mizr in their region, made from corn, and whether it could be drunk. The Messenger of Allah (peace and blessings be upon him) asked: “Is it intoxicating?” The man replied: “Yes.” The Messenger of Allah (peace and blessings be upon him) said: “Every intoxicant is haram. Whoever drinks an intoxicant, Allah is bound to make him drink tinat al-khabal (a poisonous drink).” The people asked: “O Messenger of Allah, what is this poisonous drink?” He said: “The sweat of the people of Hell.” —Muslim.
Ibn Abbas (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Everything that renders the intellect inactive and intoxicates a person is haram.” —Abu Dawud.
There are many hadiths on this subject. Through his characteristically concise yet comprehensive statements, the Messenger of Allah (peace and blessings be upon him) classified all intoxicating and mind-numbing substances as haram and made no distinction among them, whether they are foods or drinks. Moreover, wine is sometimes consumed mixed with solid food, while cannabis, opium, and the like are made liquid and drunk. Thus wine can take the form of both food and drink, and opium and cannabis can likewise be transformed into food and drink. Whatever their form, they are haram in every circumstance. The fact that they arose after the era of the Messenger (peace and blessings be upon him) and the Imams does not take them outside the scope of his general statements concerning intoxicants. Many intoxicating substances and drinks were produced after the Messenger of Allah (peace and blessings be upon him), and all of them fall under the statements concerning intoxicants found in the Quran and Sunnah.”
Imam Ibn Taymiyyah also discussed this matter repeatedly in his collection of fatwas, the summary of which follows: “Those who consume this accursed bhang and those who declare it lawful incur the wrath of Allah, His Messenger, and His servants, and Allah’s punishment is inevitable for them. It corrupts and damages a person’s religion, character, intellect, and natural disposition, and makes his temperament so bad and irritable that many become completely insane. Those who consume these intoxicants descend to such a low level of vileness and bestiality that even wine drinkers are surpassed by them. Thus they are more dangerous than wine, and declaring them haram is all the more reasonable and appropriate. The Muslims have reached consensus that consuming these intoxicants is haram. Whoever believes them lawful will be ordered to repent. If he repents, he will be spared; otherwise, he will be declared an apostate. His funeral prayer will not be performed, nor will he be buried in a Muslim cemetery. It must also be remembered that, under the ruling concerning wine, even a small quantity of these intoxicants is haram.”
His distinguished student, Imam Ibn al-Qayyim, likewise followed his path and said in his book Zad al-Ma‘ad: “Every intoxicant falls under khamr, or wine, whether it is liquid or solid, an extract or cooked. Hashish—namely bhang, cannabis, and the like—is also included. In light of the clear and definitive statements of the Messenger of Allah (peace and blessings be upon him), all of these are wine, for he said: ‘Every intoxicating substance is haram.’ The Companions, who understood the meaning and significance of the Messenger of Allah’s words better than anyone, also agreed that wine is what produces intoxication and impairs the intellect. Furthermore, even if the Messenger of Allah’s statement did not include every intoxicating substance, sound reasoning would still require the same ruling for all types and categories of intoxicants. There is no basis for making distinctions and discriminations without cause or justification among things equal and equivalent in every respect.”
The author of Subul al-Salam, the commentary on Bulugh al-Maram, said: “Whatever causes intoxication and drunkenness is haram, even if it is not a drink.” Hafiz Ibn Hajar said: “Whoever says that bhang or opium does not intoxicate but merely stupefies is an obstinate person, because they produce the same kind of intoxication and drunkenness as wine.” The eminent physician Ibn al-Baytar said: The bhang found in Egypt is extremely intoxicating. A person becomes drunk by consuming just one or two dirhams’ worth. Bhang has many harmful effects. Some scholars have enumerated 120 religious and worldly harms of it. All of these harms are also found in opium, though opium is even more harmful.
What Shaykh al-Islam Ibn Taymiyyah and his capable student Ibn al-Qayyim said is both logical and satisfying. This discussion has also made clear that the statements of the Quran and Sunnah include bhang along with wine, and likewise include the even more harmful opium. In short, every intoxicating substance that has recently emerged and was previously unknown is included. Like wine made from grapes, these substances impair the intellect and cause intoxication. They possess the harms of wine, as well as harms even more terrible, which we see with our own eyes. It is utterly impossible that Islam would permit these mind-destroying intoxicants. Those who declare any one of them lawful either fabricate a lie against Allah or speak about Allah out of ignorance. When these intoxicants harm people individually and collectively, materially, physically, culturally, and morally—in short, in every respect—how could Islamic law permit them? Islam came precisely to grant people comprehensive, or at least relative, benefit and to protect and preserve them from every harmful and detrimental thing.
When the All-Knowing, All-Wise Allah prohibited wine made from grapes, whether little or much, because it is harmful and because drinking a small amount leads to and causes the consumption of a large amount, how could He permit intoxicants that are even more harmful and destroy the body, intellect, religion, character, and natural disposition? No one but someone ignorant of Islam, a kafir, or an innovator could make such a statement. Therefore, whether these intoxicants are consumed by eating, drinking, inhaling, or injection, they are completely haram. There is no room whatsoever for ambiguity, confusion, or evasion in this matter.
Trading in intoxicants and adopting them as a means of commercial profit:
Numerous hadiths narrated from the Messenger of Allah (peace and blessings be upon him) declare the sale of wine haram. Among them is the notable hadith narrated by Jabir (may Allah be pleased with him) in Bukhari and Muslim: “Allah has declared the sale of wine, carrion, swine, and idols haram.” Many hadiths have also been narrated to the effect that whatever Allah has prohibited people from benefiting from, selling it and consuming its price are likewise haram. The answer to the first question established that, according to the Shariah, the term “wine” also applies to these intoxicants. Therefore, just as trading in wine has been prohibited, the sale of intoxicants is also considered haram under the same prohibition. It is therefore clear that dealing in these intoxicants and adopting such trade as a means or profession for earning a livelihood are also haram. In addition, all intoxicants encourage sins whose prohibition is beyond the slightest doubt, since their prohibition is established by the Quran:
وَتَعَاوَنُوا عَلَى الْبِرِّ وَالتَّقْوَى ط وَلَا تَعَاوَنُوا عَلَى الْإِثْمِ وَالْعُدْوَانِ ص
Meaning: Help one another in righteousness and piety, and do not help one another in sin and transgression.” (Surah al-Ma’idah: verse 2)
Therefore, the view of most jurists is entirely correct: it is haram to sell grape juice to someone who will make wine from it, and such a sale is invalid, because it constitutes assistance in sin.
Cultivating intoxicant-producing plants for sale and extracting intoxicating substances from them for consumption or trade:
It is unquestionably haram to cultivate opium and bhang in order to extract intoxicating substances from them for consumption or trade. The reasons are as follows:
1. Abu Dawud narrated from Ibn Abbas that the Messenger of Allah (peace and blessings be upon him) said: “Whoever stores grapes during the fruit-picking season intending to sell them to someone who will make wine from them will certainly enter Hell.” This hadith indirectly proves that if storing grapes for sale to a winemaker is haram, then cultivating bhang and opium for the same purpose is also haram.
2. This constitutes assistance in sin. The sinful acts are the drug trade and drug consumption. We have already mentioned that assisting in sin is itself a sin.
3. By planting intoxicant-producing plants for this purpose, the farmer expresses approval of people engaging in drug consumption and the drug trade. Approving any sinful act is itself a sin. This is because sincerely disliking and rejecting wrongdoing is in fact equivalent to hating wrongdoing and holding aversion toward it, which is obligatory upon every Muslim in all circumstances. Indeed, Sahih Muslim reports that the Messenger of Allah (peace and blessings be upon him) said: “Whoever does not sincerely dislike and reject a sinful act has not even an atom’s weight of faith in his heart.” There is also another reason why cultivating bhang and opium is sinful: it is prohibited by the laws in force in the country. Muslims have reached consensus that it is obligatory to obey any law or administrative order in force that does not violate the commands of Allah and His Messenger. Imam Nawawi said in his commentary on Muslim, under the chapter “Obedience to Rulers”: This latter reason is significant in establishing the prohibition of consuming and trading in intoxicants.
Profit earned from intoxicants:
This discussion has established that selling intoxicants is haram. Since selling them is haram, their price is also haram, because Allah said:
وَلَا تَأْكُلُوا أَمْوَالَكُمْ بَيْنَكُمْ بِالْبَاطِلِ
“Do not consume one another’s wealth unjustly.” (Al-Nisa: 29)
That is, do not take or consume one another’s wealth unjustly. There are two ways of taking another person’s wealth unjustly:
1. Acquiring another person’s wealth through oppression, theft, betrayal, usurpation, or other unjust means.
2. Earning through prohibited and unlawful means, such as gambling, or through invalid contracts such as usury, and through selling things from which Allah has prohibited benefit, even if this is done voluntarily and willingly. Second, the sale proceeds of all things from which Allah has prohibited benefit have also been declared haram in several hadiths. For example, the Messenger of Allah (peace and blessings be upon him) said: “When Allah declares something haram, He also declares its price haram.” —Narrated from Ibn Abbas by Ibn Abi Shaybah.
It is stated in Zad al-Ma‘ad: The view of most jurists is that if grapes are sold to someone who will make wine, it is haram to consume their price. But if grapes are sold to someone who will eat them, it is lawful. Likewise, if a weapon is sold to someone who will use it to attack a Muslim, it is haram to consume its sale price; but if it is sold to someone fighting in the path of Allah, its sale price is lawful. Similarly, if silk clothing is sold to someone for whom wearing it is haram, it is haram to consume its price; but if it is sold to someone for whom wearing silk is lawful, consuming its price is lawful. If someone wishes to use an object whose benefit is lawful for disobedience to Allah, and it is sold to him, then according to most jurists it is haram to consume its price. As for something whose benefit is haram, such as intoxicants, consuming its sale price is certainly haram. Since the sale proceeds of these intoxicants are haram, if they are spent on acts of worship such as charity or Hajj, they will not be accepted, and the one who spends them will receive no reward.
Muslim narrated from Abu Hurayrah (may Allah be pleased with him): “The Messenger of Allah (peace and blessings be upon him) said: Allah is Pure and accepts only that which is pure. Allah commanded the believers with what He commanded the messengers. He said:
يَأَيُّهَا الرُّسُلُ كُلُوا مِنَ الطَّيِّبَتِ وَاعْمَلُوا صَالِحًا
“O messengers, eat of what is lawful and do righteous deeds.” He also said:
يَأَيُّهَا الَّذِينَ آمَنُوا كُلُوا مِنْ طَيِّبَتِ مَا رَزَقْنَكُمْ وَاشْكُرُوا لِلَّهِ إِنْ كُنْتُمْ إِيَّاهُ تَعْبُدُونَ
“O believers, eat of the pure provisions We have given you and give thanks to Allah, if it is Him alone you worship.” Then the Messenger of Allah (peace and blessings be upon him) described a man who, exhausted from a long journey, raises his hands to Allah and supplicates: “O my Lord, O my Lord,” while his food is haram, his drink is haram, his clothing is haram, and he has been nourished by haram. How, then, can his supplication be accepted?”
A hadith narrated from Ibn Mas‘ud (may Allah be pleased with him) in Musnad Ahmad states that the Messenger of Allah (peace and blessings be upon him) said: “By Allah the Almighty, no servant who earns unlawful wealth and spends from it will receive blessing in it; if he gives charity from it, it will not be accepted; and if he leaves it as an inheritance, it will be his provision for Hell. Allah does not erase sins through unlawful wealth, but He erases sins through lawful wealth. One impure thing does not remove another impure thing.”
Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever earns unlawful wealth and then gives it in charity will receive no reward for it; rather, its liability and punishment will fall upon him.” —Jami‘ al-‘Ulum.
Qasim ibn Mukhaymirah narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever earns money through a sinful act and then uses it to maintain ties with blood relatives, gives it in charity, or spends it in the path of Allah, all of it will be gathered and he will then be thrown into Hell.” —Jami‘ al-‘Ulum.
Mulla Ali al-Qari cited the following hadith in his commentary on Imam Nawawi’s collection of forty hadiths: The Messenger of Allah (peace and blessings be upon him) said: “When a person sets out for Hajj with unlawful money, then mounts his conveyance and says, ‘Labbayk’ (Here I am at Your service), an angel from heaven says to him: ‘No response of labbayk will be accepted from you. Your Hajj is returned to you.’” Collectively, these hadiths prove that Allah does not accept any Hajj, charity, or other act of worship performed with unlawful, impure wealth. For this reason, some Hanafi scholars say that spending unlawful wealth on Hajj is also haram.
The summary of our discussion is: 1. Consuming opium, cocaine, bhang, and similar intoxicants is completely haram. 2. Trading in them and making them a profitable occupation is haram. 3. Cultivating opium, bhang, and the like, extracting intoxicating substances from them, consuming them, or trading in them is haram. 4. The profit earned by trading in these substances is haram and impure, and spending it on good causes is not merely unacceptable but also haram.
2. The Punishment of the Wine Drinker
The jurists agree that it is obligatory to punish a wine drinker and that his punishment is flogging. They differ, however, over the number of lashes. According to the Hanafis and Malikis, it is eighty; according to the Shafi‘is, forty; and according to one opinion of Imam Ahmad, eighty, while according to another, forty. Imam Malik, al-Thawri, Abu Hanifah, and his students support eighty. The Companions also reached consensus on this view. It is narrated that Umar (may Allah be pleased with him) consulted the people—that is, the Companions—about the punishment for drinking wine. Abd al-Rahman ibn Awf said: “Set the lightest punishment for it.” That is eighty lashes. Umar (may Allah be pleased with him) then established eighty lashes and wrote the same instruction to Khalid and Abu Ubaydah in Syria.
During the consultation, Ali (may Allah be pleased with him) said: “When a person becomes drunk, he raves; and when he raves, he lies. Therefore, give him the punishment of a liar”—that is, the minimum punishment, eighty lashes. The second view, forty lashes, is held by some Hanbalis and by the Shafi‘is, because Ali (may Allah be pleased with him) flogged al-Walid ibn Uqbah forty times. He then said: “The Messenger of Allah gave forty lashes, Abu Bakr gave forty, and Umar (may Allah be pleased with him) gave eighty. All of these are Sunnah, but I prefer forty.” —Muslim.
Anas (may Allah be pleased with him) said: A man who had drunk wine was brought to the Messenger of Allah (peace and blessings be upon him), and he struck him with about forty shoe blows. Later, when the man drank again, he was brought to Abu Bakr, who dealt with him as the Messenger of Allah had. Then he was brought to Umar, who consulted the people. At that time, Abd al-Rahman ibn Awf said: “The minimum of the hudud is eighty lashes, which is the minimum.” (Bukhari and Muslim) Umar (may Allah be pleased with him) then flogged the wine drinker. The action of the Messenger of Allah (peace and blessings be upon him) is conclusive proof in the Shariah; it may not be abandoned because of another person’s action. There can be no consensus on an action contrary to that of the Messenger of Allah, Abu Bakr, and Umar. Therefore, the additional lashes imposed by Umar are regarded as a discretionary punishment (ta‘zir) selected by the ruler. In other words, the actual Shariah punishment, or hadd, is forty lashes, but it is permissible to increase it where doing so is deemed beneficial. This view may be considered preferable based on the report that Umar (may Allah be pleased with him) gave eighty lashes to a strong person who was extremely addicted to wine, and forty to a weak person who drank through a lapse. However, the ruling prescribing execution for a repeat drinker was abrogated. It was narrated from Qubays ibn Dhu’ayb (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Flog whoever drinks wine. If he drinks again, flog him again. If he drinks again, flog him again. If he drinks again—the third or fourth time—kill him.” But when a man was caught drinking wine three consecutive times, he flogged him and revoked the death penalty. This was a matter left to discretion.
How will the punishment be established?
The punishment will be established by either of two methods:
1. The wine drinker’s confession that he drank wine. 2. The testimony of two upright persons.
The jurists differ over establishing the punishment through the smell of the mouth. According to the Malikis, if two upright witnesses testify before the judge on the basis of the smell, the hadd becomes obligatory. This is because drinking wine is established by smell, just as an act may be established by sound or footprints. According to Abu Hanifah and al-Shafi‘i, however, the hadd is not established by smell, because doubt remains. Different smells may resemble one another, so doubt naturally arises, and doubt nullifies the hadd. Moreover, the smell may be that of mixed wine, or the person may have been forced to drink wine. Some substances are not wine but smell like it. According to the principles of Islam, if there is even the slightest opportunity to exempt someone from the hadd, he must be exempted, because the Shariah is eager to suspend punishments.
Conditions for enforcing the hadd
The following conditions must be fulfilled for the Shariah punishment (hadd) for drinking wine to be enforced:
1. Soundness of mind. The responsibility of observing the rulings of the Shariah is not imposed without this. Therefore, if an insane person drinks wine, the hadd will not be enforced upon him. A person with an intellectual disability is likewise not included.
2. Reaching adulthood. If a boy or child drinks wine, the hadd will not be enforced upon him, because responsibility for observing the rulings of the Shariah has not been imposed upon him.
3. Voluntariness: If someone forces another person to drink wine, the hadd will not be enforced upon the drinker, whether the coercion involves a threat to kill him, a threat of severely painful beating, or a threat to destroy all his property and means of support. This is because coercion frees a person from liability for the sin he commits.
The Messenger of Allah (peace and blessings be upon him) said: “The sin of unintentional acts or acts abandoned through mistake has been removed from my community.” When sin or liability has been removed, the hadd punishment cannot be imposed on him, because sin is the cause of the hadd. Drinking wine out of necessity falls under drinking it under compulsion. Thus, if someone is afflicted by intense thirst and faces the danger of death because he cannot find water, then if he finds wine, it is permissible for him to drink it. Likewise, if someone is at serious risk of death from extreme hunger and finds wine, he may drink it, because his life then depends on drinking it. In reality, dire necessity makes even prohibited things permissible. Allah says:
فَمَنِ اضْطُرَّ غَيْرَ بَاغِ وَلَا عَادٍ فَلَا إِثْمَ عَلَيْهِ ، إِنَّ اللَّهَ غَفُورٌ رَّحِيرُه
“But whoever is compelled, without desiring disobedience or transgressing, will have no sin. Allah is Forgiving, Most Merciful.” Al-Mughni states: The Roman emperor detained Abdullah ibn Hudhafa and confined him in a room where there was no food or drink except water mixed with wine and roasted pork, so that he would be forced to eat pork and drink wine. He kept him there for three days. Nevertheless, he did not touch that food or drink. Then, fearing that he might die, they released him. After his release, he said: “By Allah, Allah had made this food and drink lawful for me, since I had no other option. But I did not want to let you rejoice at seeing the laws of Islam violated.”
4. The drinker must know that what he intends to drink is intoxicating and stupefying. If he drinks it without knowing that it is wine, he will be excused on account of his ignorance, and the hadd will not be imposed on him. But if someone informs him of this and he nevertheless drinks it or continues drinking it, he will not be excused, because his ignorance has been removed and he has knowingly persisted in disobeying Allah. Thus, he has become liable to punishment and the hadd will be imposed on him. If he drinks a beverage whose being wine is disputed among the jurists, the hadd will not be imposed on him, because dispute and disagreement create doubt, and doubt always prevents the hadd. Likewise, if someone drinks unfermented grape juice after it has become thick, settled, and frothy, while he does not know that all jurists agree that drinking such juice is prohibited because he lives in a non-Muslim country or has only recently embraced Islam, the hadd will not be imposed on him. His ignorance will be considered an excuse that prevents the hadd. Conversely, if someone lives in a Muslim country and is not a recent convert, the hadd will be imposed on him, and he will not be excused on account of ignorance, because this matter falls within the essential knowledge of Islam.
Freedom and being Muslim are not conditions for imposing the hadd
The offender’s being Muslim and free is not a condition for imposing the hadd. If a slave drinks wine, he will also be punished, because he too is subject to Allah’s commands and prohibitions. However, there are some acts that are difficult for him because he is occupied with obeying his master, such as attending the Friday prayer and praying in congregation. Allah Himself has prohibited abstaining from wine. This prohibition applies equally to the free and the slave, and abstaining from wine is not difficult. The harm caused by wine also affects both the free and the slave. They differ in nothing except the punishment, for the slave’s punishment is half—that is, twenty or forty lashes. These two punishments correspond to the disagreement concerning the punishment for drinking wine.
Just as being free is not a condition for imposing the hadd, neither is being Muslim. If Jewish and Christian People of the Book obtain citizenship in a Muslim country and live alongside Muslims, as the People of the Book live in Egypt, and likewise if People of the Book temporarily reside in Muslim lands under a special security agreement, as foreigners do, then if they drink wine in a Muslim country, the hadd will be imposed on them. They enjoy the same rights as Muslims and bear the same responsibilities. Moreover, wine is prohibited in their religion as well, as mentioned earlier.
The harmful effects of wine in both private and social life are extremely widespread, and Islam is determined to keep society pure, balanced, and well ordered, so that no citizen, Muslim or non-Muslim, can weaken or pollute it. This is the opinion of most jurists, and it cannot in any way be altered.
The Hanafis, however, hold that although wine is not property for Muslims because Islam has prohibited it, it is property for the People of the Book. If a Muslim pours out a person of the Book’s wine, he must pay its value as compensation, because drinking wine is lawful for them. We have been commanded to leave their religion and customs to them. Therefore, a person of the Book who drinks wine may not be punished, even though wine has been prohibited in their scripture. Nevertheless, we will grant them freedom, because they do not observe this prohibition of their religion. Our treatment of them will be according to what they believe, not according to the actual truth.
Treatment with wine
Before Islam, during the Age of Ignorance, people drank wine for treatment. Islam came and prohibited them from treating illnesses with wine, making wine unlawful.
Ahmad, Muslim, Abu Dawud, and al-Tirmidhi narrated that Tariq ibn Suwayd al-Ju‘fi asked the Messenger of Allah (peace and blessings be upon him) about wine. The Messenger of Allah (peace and blessings be upon him) prohibited him from drinking it. Al-Ju‘fi said: “We make it as medicine.” The Messenger of Allah (peace and blessings be upon him) said: “It is not medicine; rather, it is a disease.”
Abu Dawud narrated from Abu al-Darda’ (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Allah the Exalted created both disease and medicine. So treat disease with medicine, and do not treat disease with anything unlawful.” In the pre-Islamic period, people also sometimes drank wine to protect themselves from the cold. Islam prohibited this as well. Abu Dawud narrated that Dailam al-Himyari asked the Messenger of Allah (peace and blessings be upon him): “O Messenger of Allah, we live in a very cold region and endure great hardship there. We make a drink from wheat by which we gain strength for our work and combat the cold of our land. Is there any problem with that?” The Messenger of Allah (peace and blessings be upon him) said: “Does this drink intoxicate?”
Al-Himyari said: Yes.
The Messenger of Allah (peace and blessings be upon him) said: Then abandon it.
Al-Himyari said: But the people do not want to give it up.
The Messenger of Allah (peace and blessings be upon him) said: If the people do not want to give it up, then fight them.
Some scholars have permitted treating illness with wine, on the condition that no alternative medicine made from lawful substances is available, that the patient’s purpose is not pleasure or intoxication, and that he does not consume more than the amount prescribed by the physician. Wine may be used for treatment in exactly the circumstances in which drinking it is permitted out of necessity. The jurists gave examples such as these: if a morsel of food becomes lodged in someone’s throat and he can find nothing except wine to move it down; if someone is about to die from intense cold and has no way to prevent death except drinking a glass or a sip of wine; or if someone suffers from heart disease and is facing death, then learns or is told by a physician that there is no way to avert this danger except by drinking a specified amount of wine.
3. Punishment for adultery
1. Islam has called people to marry, encouraged marriage, and made it popular, because it is the safest and most peaceful way to calm sexual desire. It is the best means for a husband and wife to have children and undertake together to raise them. It is the noblest way to nurture affection, compassion, honor, dignity, and a pure relationship. Only through this means can the new generation be prepared to fulfill its responsibilities and strive appropriately to improve the quality of life.
2. On the one hand, Islam has prescribed marriage as the best means of calming sexual desire and arousal. It has prevented the use of this desire in ways contrary to the Shariah and prohibited stimulating it by any other means, so as to prevent deviation from the specified lawful method. On the other hand, it has prohibited free mixing, dancing, obscene songs, provocative images, lustful gazes, and every activity that stimulates sexual desire or calls toward obscenity, so that means that weaken the family system do not enter society.
3. Islam has classified adultery in law as a crime deserving the highest punishment, because its consequences are extremely dreadful and it gives rise to many crimes and evils. Thus, free and illicit sexual relations are not merely wrongful and detestable conduct; they also cause the destruction of society as a whole. Allah says:
وَلَا تَقْرَبُوا الزِّنِّي إِنَّهُ كَانَ فَاحِشَةٌ ، وَسَاءَ سَبِيلاه
“Do not go near adultery. It is an obscenity and an evil way.” That is, keep away from every act that leads toward adultery, such as obscene gazes, touching, kissing, and the like. In this way, the verse prohibits actions that bring one near adultery; adultery itself is therefore prohibited even more emphatically.
4. Adultery is a direct cause of the spread of infectious diseases that are extremely harmful to the human body. These diseases are not merely contagious; they also pass from generation to generation, such as gonorrhea, syphilis, boils, and skin diseases.
5. Adultery is one of the causes of heinous crimes such as murder, because a sense of honor is an innate quality in every person. An honorable man and a chaste woman often cannot tolerate sexual violation. Indeed, when a man sees that the honor and dignity of himself and his family have been stained and disgraced, he sees no alternative to bloodshed for washing away that disgrace.
6. Adultery destroys the family system, breaks marital ties, and pushes the upbringing of children toward ruin. As a result, children become misguided, prone to crime, and delinquent.
7. Adultery destroys lineage, and during the distribution of inheritance, the rightful heirs are deprived of property.
8. Adultery deceives the husband, because a child may be conceived through adultery. As a result, the husband raises another man’s child believing it to be his own.
9. Adultery is a temporary relationship. No one accepts any responsibility or obligation for it. It is therefore merely an animalistic act, from which every honorable person keeps away.
In short, it has been conclusively established scientifically that the harms of adultery are extremely grave. It causes extreme disorder and lawlessness in society, the spread of the deadliest diseases, lifelong bachelorhood, and extramarital relationships. For these reasons, Islam has prescribed the harshest punishment for adultery. When a crime has such a severe punishment, the evil consequences of the crime itself must be even more destructive to society. Islam compares the harm caused to the offender with that caused to society and decides in light of the lesser harm. Indeed, this is justice.
There is no doubt that the harm caused by punishing an adulterer cannot be measured against the harm caused to society—in other words, against the spread of adultery, obscenity, and sin in society. Even if the adulterer suffers some harm through the punishment, enforcing it protects many lives, much honor and dignity, and many families. These families are the foundation stones of society. When they are sound, society is sound; when they are corrupt, society is corrupt. A nation’s greatness is determined by the purity of its character, its noble conduct, and its freedom and purification from moral decline and filth.
It should be noted that, in order to free society from the filth of adultery, Islam established marriage on the one hand and permitted polygyny on the other, so that there would be no narrowness but rather ample room to remain within the lawful path, and so that the offender could not offer any excuse or pretext. Just as Islam made adulterers fearful and terrified through the severity of the punishment for adultery, it also exercised equal caution in enforcing it, as follows:
1. It waived the punishment whenever there was even the slightest possibility of doubt. The hadd is not imposed unless the commission of the crime is certain.
2. The testimony of four upright and just male witnesses is essential to prove this crime. The testimony of women and immoral people is not accepted in this case.
3. All the witnesses must have directly seen the act of adultery. They must see the male organ enter the vagina just as a kohl applicator enters its container. Because of this strict requirement of direct observation, proving the crime becomes difficult.
4. If three witnesses testify in this manner but the fourth testifies contrary to them, or if one of the four withdraws his testimony, the remaining three witnesses will be subjected to the punishment for false accusation: eighty lashes.
The precautions Islam has taken in proving this crime ensure that it is established with certainty. Consequently, the power of this punishment to inspire fear and terror is far greater than its actual frequency or effectiveness. One may ask: if the hadd is imposed so rarely after being established by testimony and evidence, why did Islam institute it? The answer is that when people observe the severity of the punishment, they are compelled to think a thousand times before committing the crime. In reality, it is a powerful warning against this offense. Since sexual desire is one of the strongest human impulses, the severity of the punishment has been used to restrain its tendency.
A gradual approach to prohibiting adultery
Many jurists believe that a gradual approach was adopted in prescribing the punishment for adultery, just as it was adopted in making fasting obligatory and prohibiting wine. At first, the punishment for adultery was only reprimand and censure. Allah says:
وَالَّذِينَ يَأْتِينِهَا مِنْكُمْ فَخُذُوهُمَا ، فَإِنْ تَابَا وَأَصْلَهَا فَأَعْرِضُوا عَنْهُمَا ،
Meaning: Those two among you who commit this act—that is, adultery—you shall reprimand. If they both repent and reform themselves, then leave them alone.” (Surah al-Nisa’, verse 16)
Then the ruling was advanced to confining them inside their homes. Allah says:
وَالَّتِي يَأْتِينَ الْفَاحِشَةَ مِنْ نِسَائِكُمْ فَاسْتَشْهِدُوا عَلَيْهِنَّ أَرْبَعَةٌ مِنْكُمْ فَإِنْ شَهِدُوا فَامْسَكُوهُنَّ فِي الْبُيُوتِ حَتَّى يَتَوَفَهُنَّ الْمَوْتِ أَوْ يَجْعَلَ اللَّهُ لَهُنَّ سَبِيلاه
Meaning: Those of your women who commit adultery—call four witnesses from among you against them. If they testify, confine them in their homes until death takes them or Allah provides another way for them.” (Surah al-Nisa’, verse 15)
Then the situation stabilized, and Allah instituted another ruling. At this stage, the punishment for an unmarried adulterer was set at one hundred lashes, while the punishment for a married adulterer was stoning (rajm) until death. The purpose of this gradual approach was to give human society an opportunity to develop and progress, and to lead it toward honesty and purity through gentleness and cooperation, so that this change would not be difficult for people and they would not face undue harshness regarding Islam. Evidence for this is found in the following hadith narrated by Ubadah ibn al-Samit:
The Messenger of Allah (peace and blessings be upon him) said: “Take it from me. Allah has made another ruling for them: if an unmarried man commits adultery with an unmarried woman, the punishment is one hundred lashes and exile from the country for one year. If a married person commits adultery with a married person, the punishment is one hundred lashes and stoning.” —Muslim, Abu Dawud, al-Tirmidhi.
It appears to us that these two verses (Surah al-Nisa’, verses 15 and 16) describe the ruling on female homosexuality and male homosexuality. The ruling for these two acts differs from the ruling on adultery described in Surah al-Nur.
1. The meaning of the first verse is: Call for the testimony of four men regarding those women who engage in an obscene act—that is, female homosexuality. If four men testify, confine them in their homes in such a way that the two homosexual women remain separated from each other, until they die or Allah creates another means for them to be released from confinement by freeing themselves from homosexuality through repentance or marriage.
2. The meaning of the second verse is: Punish the two men who commit an obscene act—that is, homosexuality—after their misconduct has been established by testimony. If, before the hadd is imposed on them, they repent and reform themselves, then refrain from imposing the punishment and pardon them.
Adultery for which punishment is obligatory
Any sexual gratification contrary to the Shariah is considered adultery, and the prescribed punishment will be imposed for it, because it is one of the offenses for which the Shariah has prescribed a punishment. If intercourse with a woman is completely unlawful and there is no possible doubt of a marital relationship with her, then punishable adultery is complete as soon as the head of the penis—or an amount equal to the portion of skin removed by circumcision—enters her vagina, whether ejaculation occurs or not. If someone seeks sexual gratification with a woman with whom intercourse is unlawful somewhere other than her vagina, the prescribed punishment for adultery will not apply; however, he must receive ta‘zir, meaning another form of punishment. This is because it was narrated from Ibn Mas‘ud (may Allah be pleased with him):
A man came to the Messenger of Allah (peace and blessings be upon him) and said: “I treated a woman who had come from the outskirts of Medina. During the treatment I committed an unlawful act with her, but I did not have intercourse. Here I am; impose upon me whatever you wish.” Umar (may Allah be pleased with him) said: “Allah concealed you; you should also have concealed yourself.” The Messenger of Allah (peace and blessings be upon him) gave no reply, so the man departed. Immediately, the Messenger of Allah (peace and blessings be upon him) sent someone after him and summoned him back. Then he recited this verse to him:
وَأَقِمِ الصَّلوةَ طَرَفَي النَّهَارِ وَزُلَفًا مِنَ اليْلِ ، إِنَّ الْحَسَنَتِ يُذْهِبْنَ السَّيِّاتِ ، ذَلِكَ
ذِكْرَى لِلذَّرِينَ
“Establish prayer at the two ends of the day and in the early hours of the night. Indeed, good deeds erase bad deeds. That is a reminder for those who take heed.”
Someone among those present asked: “O Messenger of Allah, is this specific to this man, or is it for everyone?” The Messenger of Allah (peace and blessings be upon him) said: “For everyone.” —Muslim, Abu Dawud, al-Tirmidhi.
Categories of adulterers
There are two types of adulterers: married and unmarried. Each has a separate ruling:
Punishment of the unmarried
The jurists unanimously state that if a free, unmarried man or woman commits adultery, the person shall receive one hundred lashes. Allah says in Surah al-Nur:
الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلِّ وَاحِلٍ مِنْهُمَا مِائَةَ جَلْدَةٍ ، وَلَا تَأْخُذُكُرُ بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ
إن كُنتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ وَلْيَشْهَدْ عَذَابَهُمَا طَائِفَةٌ مِنَ الْمُؤْمِنِينَ
“The adulteress and the adulterer—lash each of them one hundred lashes, and do not let compassion for them prevent you from enforcing Allah’s religion, if you believe in Allah and the Last Day. Let a group of believers witness their punishment.”
This verse prohibits rendering the punishment prescribed by the Shariah ineffective. Some hold that it prohibits making the beating so light that the offender does not feel significant pain. There is disagreement over how many people should witness the punishment. Some say three or more; others say that, besides the witnesses, four people must be present. Abu Hanifah says that if the punishment was established by witnesses, it is sufficient for the ruler and the witnesses to be present.
Combining flogging and exile: Although the jurists agree that flogging is obligatory, they differ over adding the punishment of exile:
1. Al-Shafi‘i and Ahmad said: In addition to one hundred lashes, the offender must also be exiled for one year, because it is narrated in al-Bukhari and Muslim:
A Bedouin came to the Messenger of Allah (peace be upon him) and said, “O Messenger of Allah, I ask you by Allah to judge my case according to the Book of Allah.” His opponent was more knowledgeable than he was. He said, “Yes, judge between us according to the Book of Allah and permit me to relate the facts.” The Messenger of Allah (peace be upon him) said, “Speak.” He said, “My son worked as a hired laborer in this man’s household. He committed adultery with his wife. I was told that the punishment due to my son was stoning. I brought one hundred sheep and a slave girl as ransom to spare him that punishment. Later, after asking knowledgeable people, I learned that the punishment due to my son was not stoning, but one hundred lashes and one year of exile. As for this man’s wife, the punishment due to her was stoning.” The Messenger of Allah (peace be upon him) said, “I will certainly judge between you according to the Book of Allah. You will get your flock of sheep and your slave girl back. Your son will receive one hundred lashes and one year of exile.” Then, addressing a man from the Banu Aslam tribe, he said, “O Unays, go to this man’s wife. If she confesses to adultery, stone her.” The man went to his wife, and she confessed. Thereupon the Messenger of Allah (peace be upon him) ordered that she be stoned, and she was stoned.
Al-Bukhari narrates from Abu Hurayrah (may Allah be pleased with him): “The Messenger of Allah (peace be upon him) ordered that the unmarried adulterer be exiled for one year and that the hadd punishment (lashes) be carried out upon him.”
All of the Rightly Guided Caliphs enforced the punishment of exile. No one opposed it. Abu Bakr al-Siddiq (may Allah be pleased with him) exiled people to the Fadak region, Umar al-Faruq (may Allah be pleased with him) to Syria, Uthman (may Allah be pleased with him) to Egypt, and Ali (may Allah be pleased with him) to Basra. The Shafi’is do not consider it necessary to follow a fixed rule as to which of the two punishments—lashes and exile—should be carried out first. Either may be carried out before or after the other. However, it has been stipulated regarding exile that it must be to a distance at which prayer may be shortened, since its purpose is to remove the offender from his residential area and loved ones. A distance at which prayers may not be shortened is considered part of one’s residential area. If the ruler considers it preferable to exile him farther away, he may do so. If a woman is exiled, her husband or a mahram must accompany her. If she refuses to go without payment, payment must be provided, and it shall be taken from her property.
2. Imam Malik and al-Awza’i said: Exiling a free, unmarried male adulterer is obligatory, but not exiling a free, unmarried female adulterer. A woman is not to be exiled, because she is subject to the rules of seclusion and modest dress. (The possibility of her observing these rules in an unknown foreign land is uncertain.)
3. Abu Hanifa (may Allah have mercy on him) said: The punishment of exile is not to be added to the punishment of lashes in the case of a woman. However, if the ruler considers it beneficial, he may send her wherever he considers appropriate.
The Hadd Punishment for a Married Person
The jurists unanimously agree regarding a married person that if he or she commits adultery, it is obligatory to kill the person by stoning, whether the offender is male or female. As evidence, they cite the following:
1. It is narrated from Abu Hurayrah (may Allah be pleased with him): The Messenger of Allah (peace be upon him) was in the Prophet’s Mosque when a man came to him and said, “O Messenger of Allah, I have committed adultery.” The Messenger of Allah (peace be upon him) ignored him. He repeated this four times. When he had testified against himself four times, the Messenger of Allah (peace be upon him) called him and said, “Are you insane?” He said, “No.” He again said, “Are you married?” He said, “Yes.” Then the Messenger of Allah (peace be upon him) said, “Take him and stone him.” Jabir ibn Abdullah said: “I was among those who stoned this man. We stoned him in the place where the Eid prayer was held. When he became overwhelmed by the stones, he began to run away. We caught him at al-Harrah and stoned him to death.” (Al-Bukhari and Muslim.) This hadith proves that being married is established by a single confession, and that saying “yes” constitutes a confession.
2. Ibn Abbas (may Allah be pleased with him) said: Umar (may Allah be pleased with him) delivered a sermon and said: “Allah sent Muhammad (peace be upon him) with the true religion and revealed the Book to him. Among what was revealed to him was the verse concerning stoning. We recited it, understood it, and memorized it. The Messenger of Allah (peace be upon him) carried out stoning, and we did so after him. I fear that after a long time passes, someone may say, ‘We do not find stoning in the Book of Allah,’ and thus they may go astray by abandoning an obligation revealed by Allah. Whether male or female, if a person is married and commits adultery, and witnesses testify against him, he confesses, or pregnancy is discovered, stoning him is obligatory. By Allah, were it not for the fear that people would say Umar had added a verse to the Book of Allah, I would have written this verse down.” —Al-Bukhari, Muslim, Abu Dawud, al-Tirmidhi, and al-Nasa’i.
It is stated in Nayl al-Awtar: Stoning is an issue on which there is consensus. Only the Kharijites are known to have considered it unnecessary. Some Mu’tazilites also considered it unnecessary. However, apart from saying, “It is not mentioned in the Qur’an,” they were unable to offer any other argument or proof for this position. Yet this argument is invalid and unacceptable, because it is established by universally accepted mutawatir hadith. Umar (may Allah be pleased with him) said before a large number of people: “Among the revelations sent down to the Messenger of Allah (peace be upon him) was the verse concerning stoning. We recited and memorized it. The Messenger of Allah (peace be upon him) himself carried out stoning, and after him we also carried it out.”
The abrogation of the recitation of a verse does not necessarily entail the abrogation of its ruling. Abu Dawud narrated this statement from Ibn Abbas (may Allah be pleased with him). Ahmad and al-Tabarani narrated that the following verse was among the Qur’an revealed by Allah:
الشيخ وَالشَّيْعَةُ إِذَا زَلَيَا فَارْجُمُوهُهَا البَتَّةَ بِمَا قَضَيَا مِنَ اللَّةِ
“When an elderly man and an elderly woman commit adultery, stone them both without fail, in proportion to the pleasure they enjoyed.” Ibn Hibban also quoted the statement of Ubayy ibn Ka’b:
“Surah al-Ahzab was formerly as long as Surah al-Baqarah, and it contained the verse concerning the elderly man and woman.”
Conditions for Stoning
The following conditions must be fulfilled before stoning a married adulterer:
1. The adulterer must be an adult and of sound mind. If the person is insane or a minor, the hadd punishment is not to be carried out; rather, ta’zir (any comparatively lighter punishment) is to be imposed.
2. The adulterer must be free. If the person is a male or female slave, stoning is not to be carried out, because Allah said regarding the punishment of a female slave:
فَإِنْ أَتَيْنَ بِفَاحِشَةٍ فَعَلَيْهِنَّ نِصْفُ مَا عَلَى الْمُحْصَنَتِ مِنَ الْعَذَابِ
“If they commit adultery, they shall receive half the punishment prescribed for free women.” Since stoning cannot be halved or increased, the word “punishment” here refers to lashes, not stoning.
3. The person must previously have married validly and had sexual intercourse, whether ejaculation occurred or not. The condition is fulfilled even if intercourse took place during menstruation or while in ihram. However, if the marriage was invalid, the condition for stoning is not fulfilled. It is not necessary for the marriage to remain in effect for the condition of being married to be fulfilled. If a person once married lawfully and had intercourse with his wife, then the marital relationship ended, and afterward committed adultery without entering into another marriage, he will still be stoned. The same applies to a married woman. If she was once married, then divorced, and committed adultery after the divorce, she will be considered married and will be stoned.
Muslims and Non-Muslims Are Equal Regarding the Punishment for Adultery
When adultery is proven, the hadd punishment must be carried out upon a Muslim, and likewise upon a non-Muslim or an apostate. A non-Muslim citizen living in a Muslim state is also bound to abide by the laws prevailing in the country. It is reported that the Messenger of Allah (peace be upon him) stoned two married Jewish adulterers. Islamic laws apply to an apostate. His apostasy does not exempt him from legal responsibility, nor does it exempt him from the enforcement of those laws.
Al-Bukhari and Muslim narrated from Ibn Umar (may Allah be pleased with him): The Jews brought two adulterers from among themselves, a man and a woman, to the Messenger of Allah (peace be upon him). The Messenger of Allah (peace be upon him) said, “What do you find in your Book?” They said, “Their faces are to be blackened and they are to be humiliated.” The Messenger of Allah (peace be upon him) said, “You have lied. It contains stoning. Go and bring the Torah and recite it, if you are truthful.” They brought one of their own reciters. When he reached a certain passage, he placed his hand over it. He was told, “Lift your hand.” When he lifted it, the writing beneath it became visible. He said, “O Muhammad, stoning is mentioned here, but we used to conceal it among ourselves.” Then, by the order of the Messenger of Allah (peace be upon him), both were stoned. Ibn Umar (may Allah be pleased with him) said: “I saw the man bending over the woman, trying to shield her from the stones.”
Jabir ibn Abdullah said: The Messenger of Allah (peace be upon him) stoned a man from the Banu Aslam tribe and one of the Jews. —Ahmad and Muslim.
Al-Bara ibn Azib (may Allah be pleased with him) said: A Jew who had been lashed and whose face had been blackened was brought past the Messenger of Allah (peace be upon him). The Messenger of Allah (peace be upon him) called them and said, “Do you find the punishment for adultery in your Book to be like this?” They said, “Yes.” The Messenger of Allah (peace be upon him) called one of their scholars and said to him, “I ask you by the One who revealed the Torah to Moses (peace be upon him): Do you find the punishment of the adulterer in your Book to be like this?” He said, “No. Had you not asked me under oath, I would not have told you about the punishment of stoning. But it became common among our nobles that when we caught a noble person, we let him go, and when we caught a weak person, we carried out the punishment upon him. Finally, we said, ‘Come, let us agree upon something that we can enforce upon both the noble and the lowly.’ So we adopted blackening the face and lashing as an alternative to stoning.” Then the Messenger of Allah (peace be upon him) said, “O Allah, I am the first to revive Your command after they had rendered it ineffective.” Then he ordered that the man be stoned, and he was stoned.
Then the following verse was revealed:
يَأَيُّهَا الرَّسُولُ لَا يَحْزُنُكَ الَّذِينَ يُسَارِعُونَ فِي الْكُفْرِ مِنَ الَّذِينَ قَالُوا آمَنَّا بِأَفْوَاهِهِمْ
وَلَمْ تُؤْمِنْ مِنْ قُلُوبُهُمْ
“O Messenger, let not those who hasten toward disbelief grieve you—those who say with their mouths, ‘We have believed,’ while their hearts have not believed, and among the Jews those who eagerly listen to falsehood, listening on behalf of another group who do not come to you. They distort the words from their proper places, saying, ‘Accept this ruling if it is given to you, and reject it if it is not.’” In other words, they said: “Go to Muhammad for judgment concerning the adulterer. If Muhammad orders you to blacken the face and administer lashes, accept it; but if he orders stoning, reject it.”
At this point Allah revealed:
وَمَنْ لَمْ يَحْكُرُ بِمَا أَنْزَلَ اللهُ فَأُولَئِكَ هُمُ الْكَفِرُونَ ، وَمَن لَّمْ يَحْكُمُ بِمَا أَنْزَلَ
اللهُ فَأُولَئِكَ هُمُ الظَّلِمُونَ وَمَنْ لَمْ يَحْكُم بِمَا أَنْزَلَ اللَّهُ فَأُولَئِكَ هُمُ الْفَسِقُونَ
“Whoever does not judge according to what Allah has revealed is a disbeliever. Whoever does not judge according to what Allah has revealed is an oppressor. Whoever does not judge according to what Allah has revealed is a transgressor.” Ibn Umar (may Allah be pleased with him) said: This applies to all disbelievers. (Ahmad, Abu Dawud, and Muslim.) Imam al-Nawawi said: The two Jews were stoned on the basis of their confession. Some statements concerning stoning found in the Torah are quoted here: “When a man is found lying with another man’s wife, both of them shall be killed. Thus evil will be removed from Israel. And when a man finds a betrothed virgin in the city and lies with her, take both of them outside the city and stone them to death: the young woman because she did not cry out for help to the people of the city, and the man because he humiliated his friend’s betrothed. When they are punished, wickedness will be removed from the city.” This is the statement of the Torah. There is nothing in the Bible that contradicts it. Therefore, Christians are also required to follow it.
The Opinions of the Jurists:
The jurists unanimously agree that a non-Muslim adulterer who is not a protected citizen of a Muslim country, if unmarried, is to be lashed. However, they differ over whether a married person is to be stoned. According to al-Shafi’i, Abu Yusuf, and al-Qasimi, a married unbeliever is to be stoned if he is an adult of sound mind, free, and has married validly according to his religion. According to Abu Hanifa, Muhammad, Zayd ibn Ali, Nasir, and Imam Yahya, he is to be lashed, not stoned, because in their view being Muslim is a condition for stoning. The two Jews whom the Messenger of Allah (peace be upon him) stoned were stoned in accordance with their scripture, the Torah. According to Imam Malik, no hadd punishment is to be carried out upon him. However, regarding a non-Muslim who, despite not being a protected citizen of a Muslim country, seeks asylum there, al-Shafi’i and Abu Yusuf favor carrying out the hadd punishment, whereas Malik, Abu Hanifa, and Muhammad favor not carrying it out. Ibn Abd al-Barr said that being Muslim is certainly a condition for stoning. Al-Shafi’i and Ahmad, however, do not impose this condition. Rabi’a and some adherents of the Shafi’i school impose the condition of being Muslim.
Administering Both Lashes and Stoning
According to Ibn Hazm, Ishaq ibn Rahwayh, and al-Hasan al-Basri, when a married person commits adultery, he is first to be given one hundred lashes and then stoned until death. They base this on the hadith narrated by Muslim, Abu Dawud, and al-Tirmidhi from Ubadah ibn al-Samit: “When an unmarried man commits adultery with an unmarried woman, one hundred lashes and one year of exile are prescribed. When a married man commits adultery with a married woman, one hundred lashes and stoning are prescribed.”
It is narrated from Ali (may Allah be pleased with him) that he lashed a woman named Shurahah on Thursday and stoned her on Friday. He said, “I am administering the lashes according to the Book of Allah, and stoning her according to the statement of the Messenger of Allah (peace be upon him).” Abu Hanifa, Malik, and al-Shafi’i said: Both lashes and stoning are not to be carried out upon them; only stoning is obligatory. Two opinions are narrated from Imam Ahmad: one supports carrying out both punishments and the other opposes it. Their evidence is that the Messenger of Allah (peace be upon him) only stoned Ma’iz, the Ghamidiyyah woman, and the two Jews; he did not lash them. He told Unays al-Aslami, “If the woman confesses, stone her,” and did not tell him to lash her. This was his final command, since the narrator of this hadith, Abu Hurayrah (may Allah be pleased with him), accepted Islam late. Therefore, the hadith he narrated abrogates whichever of stoning and lashing was instituted first. Then Abu Bakr and Umar (may Allah be pleased with them) carried out stoning during their caliphates; they did not carry out both stoning and lashing. Shaykh Dehlawi held that there is no contradiction between the two hadiths and that neither command was abrogated. The matter is entrusted to the ruler: if he applies both, he may do so. However, stoning alone is recommended, because the Messenger of Allah (peace be upon him) carried out stoning alone. In my view, the rationale is that stoning causes the offender’s death; thus, the actual deterrent measure is achieved through it. Lashing is an additional punishment that may be omitted. This is why, in my opinion, stoning alone is sufficient.
Conditions for Applying the Punishment for Adultery
The following conditions must be fulfilled for the punishment for adultery to be carried out: 1. Being of sound mind. 2. Being an adult. 3. Being free. 4. Knowing that adultery is forbidden.
Therefore, a minor is not to be punished for adultery (though a comparatively light disciplinary punishment may be imposed), nor is an insane person to be punished, nor is one who was forced into adultery to be punished. Ahmad, Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrated from Aishah (may Allah be pleased with her) that the Messenger of Allah (peace be upon him) said: “Three persons are exempt from responsibility: the sleeping person until he awakens; the minor until he reaches adulthood; and the insane person until he regains soundness of mind.” Knowing that adultery is forbidden is a condition because the punishment prescribed by the Shariah, or hadd, is specified only for forbidden acts, whereas that person did not commit the forbidden act knowingly. The Messenger of Allah (peace be upon him) asked Ma’iz, “Do you know what adultery is?” It is also narrated that a black female slave was brought before Umar (may Allah be pleased with him) and accused of adultery. Umar struck her several times with a whip and said, “With which worthless man did you commit zina?” She replied, “With Ghawth, in exchange for two dirhams.” (Ghawth was a man’s name.) Umar asked Ali, Uthman, and Abd al-Rahman ibn Awf, who were with him, “What do you think?” Ali (may Allah be pleased with him) said, “I think you should stone her.” Abd al-Rahman said, “I agree with what Ali said.” Uthman (may Allah be pleased with him) said, “It seems to me that you should overlook what the slave girl did, because she did not consider it blameworthy. Allah prescribed the hadd only for one who knows Allah’s ruling.” Umar (may Allah be pleased with him) said, “You have spoken correctly.”
How Is Adultery Proven?
Adultery is proven either by confession or by testimony.
Proving Adultery Through Confession
A confession is called the “strongest proof.” The Messenger of Allah (peace be upon him) accepted the confessions of Ma’iz and the Ghamidiyyah woman. No imam disagreed on this matter. However, there is disagreement over how many times a confession must be made before the hadd becomes obligatory.
Malik, al-Shafi’i, Dawud, al-Tabari, and Abu Thawr said: The hadd is to be carried out after a single confession. In the hadith narrated by Abu Hurayrah (may Allah be pleased with him), the Messenger of Allah (peace be upon him) did not specify a number when he instructed Unays to obtain the woman’s confession. According to the Hanafis, the confession must be obtained four times in separate places. According to Ahmad and Ishaq, it must be made four times, but separate places are not a condition. The first opinion, however, is the stronger one.
Withdrawing a Confession Nullifies the Punishment
According to the Shafi’i school, the Hanafi school, and Imam Ahmad, withdrawing a confession nullifies the hadd. Ahmad and al-Tirmidhi narrated from Abu Hurayrah (may Allah be pleased with him): When Ma’iz became distressed by the stones, he fled. As he passed a man, the man struck him with a camel bone he had with him, and the people nearby also struck him, causing him to die. Later, when the people informed the Messenger of Allah (peace be upon him), he said, “If only you had left him alone.” Abu Dawud and al-Nasa’i narrated a similar hadith from Jabir (may Allah be pleased with him), with the additional report: “Ma’iz, distressed by the stones, cried out, ‘Send me back to the Messenger of Allah (peace be upon him). My people have ruined me and deceived me by telling me that the Messenger of Allah (peace be upon him) would not kill me.’ But we did not leave him until we had killed him. When we returned to the Messenger of Allah (peace be upon him) and informed him of what had happened to Ma’iz, he said, ‘Why did you not leave him and bring him to me?’”
A Man Confesses to Adultery with a Woman, but the Woman Denies It
When a man confesses to having committed adultery with a particular woman and that woman denies it, the hadd is carried out only upon the man, not the woman. Ahmad and Abu Dawud narrated from Sahl ibn Sa’d: A man came to the Messenger of Allah (peace be upon him) and said that he had committed adultery with a certain woman, naming her. The Messenger of Allah (peace be upon him) immediately sent a messenger to summon the woman. When she came, he questioned her, and she denied it. The Messenger of Allah (peace be upon him) released the woman and carried out the hadd upon the man. According to the view of Imam Malik and al-Shafi’i, this was the punishment for adultery based on his confession, not the punishment for slander. Al-Awza’i and Abu Hanifa said: He is to be punished only for slander, because the woman’s denial creates doubt. It has been objected to this view that the woman’s denial does not invalidate the man’s confession. According to al-Hadawi, Muhammad, and al-Shafi’i, he is to be punished for both adultery and slander, because Abu Dawud and al-Nasa’i narrated from Ibn Abbas (may Allah be pleased with him): A man from the Bakr tribe came to the Messenger of Allah (peace be upon him) and confessed four times that he had committed adultery with a woman. The man was unmarried. He gave him one hundred lashes. Then he asked him to produce witnesses regarding the woman. The woman said, “O Messenger of Allah, this man has lied.” He then also carried out upon him the punishment for slander—eighty lashes.
Proving Adultery Through Testimony
Whether the accused is a man or a woman, an accusation or allegation of adultery disgraces the honor of the person, the family, and the descendants, destroys their good name and reputation, and brands them with infamy—in short, it brings about their complete downfall. For this reason, Islam has imposed extremely strict requirements for proving this offense, so as to block the path to permanently disgracing an innocent person through a speculative and baseless accusation or allegation arising from slight anger or hostility. Therefore, the following conditions must be fulfilled when giving testimony regarding adultery:
First: Four witnesses are indispensable. Four witnesses are not required to prove other accusations. Allah says:
وَالَّتِي يَأْتِينَ الْفَاحِشَةَ مِنْ نِّسَائِكُمْ فَاسْتَشْهِدُوا عَلَيْهِنَّ أَرْبَعَةٌ مِنْكُمْ ، فَإِنْ شَهِدُوا
فَأَمْسِكُوهُنَّ فِي الْبُيُوتِ حَتَّى يَتَوَفَّهُنَّ الْمَوْتُ أَوْ يَجْعَلَ اللَّهُ لَهُنَّ سَبِيلاه
“As for those among your women who commit indecency, call four witnesses from among you to testify against them. If they testify, confine them to their houses until death takes them or Allah provides another way for them.” (Surah al-Nisa, verse 15.)
Allah says in verse 4 of Surah al-Nur:
وَالَّذِينَ يَرْمُونَ الْمُحْصَنَاتِ ثُمَّ لَمْ يَأْتُوا بِأَرْبَعَةِ شُهَدَاءَ فَاجْلِدُ وَهُمْ ثَمِنِينَ جَلْدَةً
“Those who accuse chaste women and do not produce four witnesses—flog them eighty lashes.”
If there are fewer than four witnesses, their testimony will not be accepted.
If there are fewer than four witnesses, will they receive the punishment for slander? According to the Hanafi and Maliki schools, the leading Shafi‘i jurists, and Imam Ahmad, they will receive the punishment for slander. This is because Umar (ra) imposed the hadd on the three witnesses who testified against al-Mughirah. Others say that they will not be punished for slander, because their intention was to testify, not to slander the accused. According to the Shafi‘i, Hanafi, and Zahiri schools, this view is unacceptable.
The second condition is adulthood. For Allah Most High has said:
وَاسْتَشْهِدُوا شَهِيدَيْنِ مِن رِجَالِكُمْ ، فَإِن لَّمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَ أَمْرَأَتِي مِمَّن
تَرْضَوْنَ مِنَ الشُّهَدَاءِ
“Choose as witnesses two men from among those whom you approve as witnesses; if two men are not available, then one man and two women.” (Al-Baqarah: 282)
If a witness has not reached adulthood, his testimony will not be accepted, because he is not considered a man, nor is he among those whose testimony ordinary people regard with approval or satisfaction. The fact that he may outwardly be capable of giving testimony does not alter this. Moreover, the Messenger of Allah (sa) said: “There are three who are exempt from responsibility: the child until he reaches adulthood, the sleeping person until he awakens, and the insane person until he regains sound reason.”
Since a child is not qualified even to assume responsibility for safeguarding his own property, he is likewise not qualified to testify against another person. Giving testimony is a guardian-like responsibility.
The third condition is sound reason. Thus, the testimony of an insane person or someone with an intellectual disability will not be accepted. If the testimony of a minor is not accepted because of his immature understanding, then it is all the more reasonable that the testimony of an insane person or someone with an intellectual disability should not be accepted.
The fourth condition is the witness’s uprightness and truthfulness, for Allah has said: “Appoint two upright people from among you as witnesses.” (Surah al-Talaq, 2)
Allah has also said:
يَأَيُّهَا الَّذِينَ آمَنُوا إِنْ جَاءَكُمْ فَاسِقٌ بِنَبَا فَتَبَيَّنُوا أَنْ تُصِيبُوا قَوْمًا بِجَهَالَةٍ فَتُصْبِحُوا
عَلَى مَا فَعَلْتُمْ نَدِمِينَ
“O believers, if a wicked person brings you any news, verify it, lest you harm a people unknowingly and then become regretful for what you have done.” (Surah al-Hujurat: 6)
The fifth condition is that the witness must be Muslim, whether the testimony is given against a Muslim or against a non-Muslim. All the Imams agree on this matter.
The sixth condition is direct visual observation by the witness. That is, in his testimony the witness must state explicitly that he saw the man’s private part enter the woman’s private part just as a kohl applicator enters its container. For the Messenger of Allah (sa) said to Ma‘iz: “Perhaps you merely kissed her, touched her, or looked at her.” He replied: “O Messenger of Allah (sa), no, that is not so.” Then the Messenger of Allah (sa), abandoning hints and allusions, questioned him in explicit language. He replied: “Yes.” He asked again: “Just as the kohl applicator disappears into its container?” He replied: “Yes.”
In such a case, looking at a person’s private parts is permitted only out of necessity for the purpose of giving testimony, just as it is permitted for a doctor and a midwife.
The seventh condition is that the entry of the man’s private part into the woman’s private part must be stated in unambiguous language, not by hints or allusions.
The eighth condition is that the testimony must be completed in the same sitting. According to most jurists, one of the conditions of this testimony is that all the witnesses testify in the same place and at the same time. If they come separately, their testimony will not be accepted.
The Shafi‘i, Zahiri, and Zaidi schools do not impose this condition. In their view, testimony is accepted whether it is given in one sitting or several sittings, separately or together. This is because Allah mentioned witnesses, but did not mention a sitting or a place. Moreover, if all the testimonies are identical and contain no discrepancy, they are accepted like any other testimony even if they were given in several sittings.
The ninth condition is that all the witnesses must be men. The testimony of women is not acceptable in this case. Ibn Hazm says: The testimony of two upright Muslim women will be accepted in place of each man. Thus, the testimony of three men and two women, two men and four women, one man and six women, or eight women without any man will be accepted.
The tenth condition is that testimony must not be delayed. Umar (ra) said: “If a group testifies regarding a hadd but does not testify immediately after the event, it must be understood that they testified out of some animosity, and their testimony will not be accepted.”
If witnesses testify against someone for an act of adultery after the incident has become old, then according to the Hanafi school their testimony will not be accepted. Their argument is that after witnessing an event, a person is free to choose one of two actions: either testify against the offender in the hope of receiving reward, or conceal the offender’s crime. When he remains silent about the event and, as a result, it becomes old, this proves that he chose concealment. Then, when he gives testimony, it is understood that animosity prompted him to testify. The testimony of such a person is not accepted because it constitutes an accusation motivated by hostility, as Umar (ra) said. No opposition to this statement of Umar (ra) is known; therefore, it is considered ijma‘, or consensus. However, delayed testimony is rejected only when the witness has no valid excuse that compelled him to delay. If there is an evident excuse for delaying testimony, such as the witness’s distance from the court or his illness, then the testimony is accepted and is not invalidated merely because the incident has become old. The Hanafi jurists who advocate this condition have not specified a fixed period for it. Rather, they have entrusted the matter to the judge, who will determine the time in each case according to the circumstances. Since different people have different excuses, it is not possible to set one general period. Some Hanafi jurists, however, have set the delay at one month, while others have set it at six months. Most Maliki, Shafi‘i, Zahiri, and Zaidi Shi‘i jurists see no impediment to accepting testimony regardless of how long the witness delays. Among the Hanbalis, two views are current: one resembles the Hanafi view and the other resembles the view of most jurists.
May a judge issue a judgment based on information known to him personally?
According to the Zahiri school, in matters involving bloodshed, qisas, financial affairs, adultery, and hudud, it is obligatory for a judge to judge according to what he personally knows, whether he learned it before or after being appointed as judge. Judgment based on personal knowledge is the most reliable form of judgment, followed by the offender’s confession, and finally judgment based on testimony. For Allah says in verse 135 of Surah al-Nisa:
يَأَيُّهَا الَّذِينَ آمَنُوا كُونُوا قَوْمِينَ بِالْقِسْطِ شُهَدَاءَ لِلَّهِ
“O believers, stand firmly for justice as witnesses for Allah.”
And the Messenger of Allah (sa) said: “Whoever among you sees an evil must change it with his hand; if he is unable to do so, then with his tongue.”
Therefore, it is true that establishing justice—that is, establishing truth and fairness—is the judge’s duty. Knowingly allowing an oppressor to persist in his oppression and failing to prevent it is not justice. It is the judge’s duty to prevent with his own hand any wrongdoing known to him and to give every rightful person his due. Otherwise, that judge will be considered an unjust oppressor.
However, according to most jurists, a judge has no right to judge according to information known to him personally. Abu Bakr (ra) said: “If I see a person committing a crime, I will not punish him until it is proven to me through testimony and evidence.” Another reason is that the judge is a citizen like other citizens of the country. Therefore, until complete testimony and evidence are presented to him, it is not permissible for him to say anything on the basis of what a witness has testified. If a judge accuses an adulterer based on the state in which he saw him, while lacking complete evidence to support the accusation, he will be considered a slanderer, and it will be obligatory to impose the punishment for slander upon him. Thus, when it is forbidden for a judge to speak according to his personal knowledge, it is even more reasonable that acting upon it is also forbidden. The basis for this view is the following part of verse 13 of Surah al-Nur:
فَإِذَا لَمْ يَأْتُوا بِالشُّهَدَاءِ فَأُولَئِكَ عِنْدَ اللَّهِ هُمُ الْكَاذِبُونَ
“Since they did not produce the witnesses, they are, in the sight of Allah, the liars.”
Is adultery proven by pregnancy?
Most scholars hold that the hadd cannot be imposed merely because a woman is pregnant. Rather, the offender’s confession or testimony is essential. As proof, they cite the hadith stating that the hadd is waived whenever doubt arises. It is also narrated from Ali (ra) that he said to a pregnant woman: “Have you been raped?” She replied: “No.” He said: “Then perhaps someone came to you while you were asleep.” It is also narrated from Umar (ra) that a woman told him she was accustomed to very deep sleep. One man came to her late at night, but she did not recognize him. Umar (ra) accepted this woman’s excuse and exempted her from the hadd.
On the other hand, Imam Malik and his disciples say: A woman who is not known to have a husband, if she becomes pregnant and it is not known that she was raped, will be punished. If she claims that she was raped, she must present some indication or testimony proving that she was raped, such as having been a virgin and beginning to bleed after the rape, or condemning herself in reaction to the rape. Similarly, if she claims to have been married, her claim will not be accepted without testimony and evidence. In support of this view, Umar’s (ra) statement is cited: “The hadd must be imposed on every married adulterer, whether woman or man, if testimony, pregnancy, or confession is found.” Ali (ra) said: “O people, adultery is of two kinds: secret and public. Secret adultery is that which becomes known through the testimony of witnesses. Public adultery is that which becomes known through confession or pregnancy.” These are statements of the Companions, and no one opposed them during their lifetime. Therefore, this must be ijma‘, or a unanimous decision.
The hadd is waived when evidence is found proving the accused’s innocence
When an indication is found concerning a woman or man accused of adultery that conclusively proves that neither of them committed adultery, the hadd is waived. Examples include a virgin girl’s virginity remaining intact, the vaginal opening being closed, or the man being impotent or having his penis severed. The Messenger of Allah (sa) sent Ali (ra) to kill a man who used to visit a certain woman. When Ali (ra) arrived, he found the man bathing in a pond. He seized him with his own hand and pulled him out of the water. He found that the man’s penis had been severed. Consequently, he left him and returned to the Messenger of Allah (sa), informing him of the matter.
When a child is born after six months
If a married woman gives birth six months after her marriage, the hadd will not be imposed upon her. Imam Malik said: I learned that when a woman who had given birth six months after her marriage was brought before Uthman (ra), he ordered that she be stoned. Ali (ra) opposed him and said: The stoning must not be imposed upon this woman, because Allah Most High has said in His Book:
وَحَمْلُهُ وَفِصَالُهُ ثَلَاثُونَ شَهْرًاه
“The period of pregnancy and weaning is thirty months.” Allah also says:
وَالْوَالِدَت يُرْضِعْنَ أَوْلَادَهُنَّ حَوْلَيْنِ كَامِلَيْنِ لِمَنْ أَرَادَ أَنْ يُتِمَّ الرَّضَاعَةَ
“Mothers shall nurse their children for two complete years, for those who wish to complete the nursing period.” This proves that a child can be born after six months. Therefore, she must not be stoned.” Upon hearing this, Uthman (ra) sent a messenger to the woman. But the messenger found that the woman had already been stoned to death.
The time for carrying out the hadd:
It is stated in Bidayat al-Mujtahid: According to most jurists, the hadd is not carried out in extreme heat, in winter, or while the accused is ill. Imam Ahmad and Ishaq hold that it is carried out. They cite as evidence that Umar (ra) carried out the hadd on Qudamah while he was ill. The reason for this disagreement is the opposition of the Zahiri jurists concerning the significance of the hadd. They say that the hadd is not carried out when those imposing it strongly fear that the offender will die if it is carried out. Those who believe that the command to carry out the hadd is unconditional and without exception say that it should also be carried out during illness. Those who consider the purpose of the hadd say that the sick person should not be punished until he recovers. Likewise, punishment should not be carried out in extreme heat or cold. Al-Shawkani says: It is a matter of consensus that the hadd of an unmarried offender will be postponed until the intensity of the cold or heat decreases. But if recovery is not expected, then according to the Shafi‘i school, the sick offender will be struck with a bunch of date-palm stalks, provided it is bearable for him. Nasir and al-Mu’ayyid بالله say that the hadd should not be carried out during illness even when recovery is not expected. However, the first view is preferable. The hadith of Abu Umamah is evidence for it. The views mentioned above concern flogging. As for an offender liable to stoning, if he is ill or in some other abnormal condition, then according to al-Shafi‘i, Abu Hanifah, and Malik, stoning will not be postponed because of illness or any other reason. The intended outcome is to kill him.
Al-Marwazi said: Whether the crime is established by the accused’s confession or by testimony, stoning will be postponed because of extreme cold, heat, or illness. Al-Isfarayini said: Stoning will be postponed only because of illness. A pregnant woman will not be stoned until she gives birth and, if no wet nurse is found, until she has nursed the child. Ali (ra) said: A slave woman belonging to the Messenger of Allah (sa) committed adultery. He ordered me to flog her. When I went to her, I found that she had just begun nifas (postpartum bleeding). I feared that she would die if I flogged her. I informed the Messenger of Allah (sa), and he said: “You did well. Leave her until she recovers.” —Ahmad, Muslim, al-Tirmidhi.
Whether a pit must be dug for the person to be stoned
Various hadiths contain differing reports as to whether a pit must be dug for the person who is to be stoned. Some hadiths clearly state that a pit must be dug, while others say nothing explicit about it. Imam Ahmad said: According to most hadiths, no pit needs to be dug. Because of these differing hadiths, the jurists also disagreed. Imam Malik and Abu Hanifah hold that no pit should be dug. Abu Thawr says that one must be dug. It is narrated from Ali (ra) that when he was ordered to stone a woman named Shurahah al-Hamdaniyyah, he took her outside, a pit was dug for her, she was placed inside it, and the people began watching her being stoned. According to al-Shafi‘i, both digging and not digging a pit are permissible. However, Imam al-Shafi‘i holds that a pit should specifically be dug for women. It is recommended that it be dug to the man’s navel and the woman’s breasts. The woman’s clothing should be gathered and tied so that, if she is not placed in the pit, her private parts do not become exposed because of her agitation. The scholars agree that a woman is to be stoned while seated. According to most scholars, a man is to be stoned while standing, while Malik holds that he should be seated. Others hold that the ruler’s decision is effective in this matter.
The ruler and witnesses being present for the stoning
According to Imam Abu Hanifah, when the hadd is established through testimony, the witnesses will cast the first stones at the married adulterer, and the ruler will compel the witnesses to do so. This will create vigilance and awareness against showing laxity toward the law of the Shariah and will foster firmness in carrying out its punishments. But if the hadd is established on the basis of a confession, the ruler or his representative is responsible for beginning the stoning.
It is stated in Nayl al-Awtar: According to Imam al-Shafi‘i, the ruler’s presence at the stoning is not obligatory. This is the correct view, since there is no evidence establishing its obligation. Moreover, it is known from the hadith cited earlier that the Messenger of Allah (sa) ordered Ma‘iz to be stoned, but he himself did not go out to the field with the people, even though the adultery had been proven by Ma‘iz’s confession. It is also reported that he was not present at the stoning of the Ghamidiyyah woman. The book Talkhis states that neither of the two hadiths indicates that he was present; rather, one report indicates that he was not present. Imam al-Shafi‘i stated this emphatically. He said that in the reports concerning the Ghamidiyyah woman in Sunan Abi Dawud and elsewhere, he was not present. Thus, it is proven that the presence of witnesses or the ruler is not obligatory. However, the jurists hold that when adultery is established by confession, it is recommended that the stoning begin at the ruler’s hand, and when it is established by testimony, it is recommended that the witnesses be present.”
The presence of a group of Muslims when the hadd is carried out
Allah Most High says in verse 2 of Surah al-Nur:
الدُّنْيَةُ وَالزَّالِي فَاجْلِدُوا كُلِّ وَاحِدٍ مِنْهُمَا مِائَةَ جَلْدَةٍ وَلَا تَأْخُذَكُمْ بِهِمَا رَأْفَةٌ فِي دِينِ اللَّهِ إِنْ
كنتُمْ تُؤْمِنُونَ بِاللَّهِ وَالْيَوْمِ الْآخِرِ وَلْيَشْمَنْ عَذَابَهُمَا طَائِفَةٌ مِّنَ الْمُؤْمِنِينَ
“As for the woman and the man guilty of adultery, flog each of them one hundred lashes. Do not let compassion for them deter you from carrying out Allah’s law, if you believe in Allah and the Last Day. Let a group of believers witness their punishment.”
From this verse, the scholars infer that it is recommended for a group of Muslims to witness the carrying out of the hadd. However, they differ regarding how many people should be in this group. Some say four, some say three, some say two, and some say seven or more.
The manner of striking in the case of flogging
According to Abu Hanifah and al-Shafi‘i, every part of the body except the face and private parts will be struck. According to Abu Hanifah, the head will also be excluded. Imam Malik says: In every hadd flogging, the male offender’s clothing must be removed from the parts to be struck. According to al-Shafi‘i and Abu Hanifah, clothing is removed in punishments other than the punishment for slander. It is stated in Bidayat al-Mujtahid that the offender is to be struck while seated, not standing. Imam al-Nawawi said: The rod used for striking must be of medium size, between a whip and a staff. If a tree branch is used, it should be midway between green and dry. The striking itself should also be midway between the two extremes—not excessively forceful and not excessively light. The striker should not raise his hand above his head, nor should he merely lay the whip on the offender’s body and stop; rather, he should raise his arm to a moderate height.
Granting respite to an unmarried person
An unmarried woman will be granted respite until the severity of winter or summer decreases. A sick offender whose recovery is hoped for will likewise be granted respite until he recovers. But if recovery is not expected, then according to the Shafi‘i school he will be struck with a date-palm branch to the extent he can bear. Abu Dawud narrated regarding a man from the Ansar who had become extremely emaciated after suffering from a prolonged illness. In that condition, a young slave girl belonging to another Ansari came into his room, and he became excited and raped her. Later, when members of his tribe came to visit him, he told them what had happened and said: Ask the Messenger of Allah (sa) for a ruling concerning me, for when a slave girl came into my room, I committed adultery with her. The people informed the Messenger of Allah (sa) of the incident. They said: We have never seen anyone as ill as he is. If we brought him to you, his bones would be crushed. There is nothing on his body except skin and bones. The Messenger of Allah (sa) then ordered that one hundred thin, soft branches be gathered from a tree and that he be struck once with them.
Is blood money due if the offender dies as a result of flogging?
If the flogged offender dies because he could not endure the beating, no blood-money (diyah) is payable for him. In his commentary on Muslim, Imam al-Nawawi says: “The scholars unanimously agree that if a person upon whom a hadd has become obligatory dies because the ruler or his appointed representative carried out the Shar‘i hadd upon him, neither the ruler nor the representative is liable to pay any diyah for him. Nor is diyah to be paid from the Bayt al-Mal.”
Thus far, the ruling on adultery has been discussed. Discussion remains concerning several other offences. I shall now discuss them:
Male homosexuality or sodomy
Male homosexuality is an extremely heinous offence. It is such an obscene act that it destroys not only character, but also natural disposition, religion, worldly life, and life as a whole. Allah has prescribed the most severe punishment for it. He punished the people of Lut (peace be upon him) for this vile and filthy crime by causing the entire land to collapse beneath them and destroying them by raining stones like pebbles upon them from the sky. He included this incident in the Holy Qur’an so that it would continue to be recited and lessons would continue to be learned from it until the Day of Resurrection. Allah says in verses 80–84 of Surah al-A‘raf:
ولوطًا إِذْ قَالَ لِقَوْمِهِ أَ تَأْتُونَ الْفَاحِشَةَ مَا سَبَقَكُمْ بِمَا مِنْ أَحَلٍ مِنَ الْعَلَمِينَ الْكُرُ لَتَأْتُونَ
الرِّجَالَ هَمْوَةٌ مِّن دُونِ النّسَاءِ مَا بَلْ أَنْتُمْ قَوْمٌ مُّسْرِفُونَ وَمَا كَانَ جَوَابَ قَوْمِهِ إِلَّا أَنْ قَالُوا
أَخْرِجُوهُمْ مِنْ قَرْيَتِكُمْ ، إِنَّهُمْ أَنَاسٌ يَتَطَهَّرُونَ فَانْجَيْنَهُ وَأَهْلَهُ إِلَّا امْرَأَتَهُ كَانَتْ مِنَ
القبرِينَ وَأَمْطَرْنَا عَلَيْهِمْ مَطَرًا مَا فَانْظُرْ كَيْفَ كَانَ عَاقِبَةُ الْمُجْرِمِينَ
“And We sent Lut; he said to his people, ‘Do you commit such an abomination as no one in the world before you has ever committed? You approach men with desire instead of women; indeed, you are a transgressing people.’ The only response of his people was that they said, ‘Expel them from your town; they are people who seek to remain pure.’ Then We saved him and his family, except his wife, who was among those left behind. And We rained upon them a rain. So observe how the end of the criminals was.”
Allah says in verses 77–82 of Surah Hud:
وَلَمَّا جَاءَتْ رُسُلُنَا لَوْطًا سِي بِهِمْ وَضَاقَ بِهِمْ ذَرْعًا وَ قَالَ هَذَا يَوْمٌ عَصِيْبٌ وَجَاءَهُ
قَوْمَهُ يُمْرَعَوْنَ إِلَيْهِ ، وَمِنْ قَبْلُ كَانُوا يَعْمَلُونَ السَّيِّاتِ طَ قَالَ يُقَوْمِ هَؤُلَاءِ بَنَاتِي
هُنْ أَطْهَرُ لَكُمْ فَاتَّقُو اللَّهَ وَلَا تُخْزُونِ فِي ضَيْفِى أَلَيْسَ مِنْكُمْ رَجُلٌ رَشِيدِهِ
. قَالُوا لَقَدْ عَلِمْتَ مَا لَنَا فِي بَنْتِكَ مِنْ حَقِّ ، وَإِنَّكَ لَتَعْلَمُ مَا نُرِيدُه قَالَ لَوْ أَنْ
لى بِكُم قوة أَوْ أَوِى إِلَى رَبِّي هَدِيدِهِ قَالُوا يَلُوطُ إِنَّا رُسُلُ رَبِّكَ لَنْ يُصِلُّوا إِلَيْكَ
فَأَسْرِ بِأَهْلِكَ بِقِطْعَ مِنَ الَّيْلِ وَلَا يَلْتَفِتْ مِنْكُمْ أَحَدٌ إِلَّا امْرَأَتَكَ وَ إِنَّهُ مُصِيبَهَا مَا
أَصَابَهُمْ إِنَّ مَوْعِدَهُمُ الصُّبْحُ ، أَلَيْسَ الصُّبْحُ بِقَرِيبٍ فَلَمَّا جَاءَ أَمْرُنَا جَعَلْنَا
عَالِيَهَا سَافِلَهَا وَأَمْطَرْنَا عَلَيْهَا حِجَارَةً مِّنْ سِجِّيلٍ مَنْضُودٍ مُسَوَّمَةٌ عِنْدَ رَبِّكَ طَ وَمَا
هِيَ مِنَ الظَّلِمِينَ بِبَعِيدِ
Meaning: “When Our angels came to Lut, he was distressed by their arrival and felt unable to protect them. They said, ‘This is a terrible day.’ His people came rushing toward him in confusion, and they had long been committing evil deeds. He said, ‘O my people, these are my daughters; marry them, for they are purer for you. So fear Allah and do not disgrace me regarding my guests. Is there not a single right-minded man among you?’ They said, ‘You know that we have no need of your daughters, and you certainly know what we want.’ He said, ‘If only I had power over you, or could seek refuge in a strong support!’ They said, ‘O Lut, we are messengers of your Lord. They will never reach you. So set out with your family during some part of the night, and let none of you look back, except your wife. What will happen to them will also happen to her. Their appointed time is the morning. Is the morning not near?’ Then, when Our command came, We turned the entire town upside down and rained upon them stones of baked clay, one after another, marked by your Lord. And it is not far from the wrongdoers.”
The Messenger of Allah (peace and blessings be upon him) ordered that the homosexual be killed and cursed him. Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah narrated that the Messenger of Allah (peace and blessings be upon him) said: “When you find anyone committing the deed of the people of Lut, kill both the one who does it and the one with whom it is done.” The wording of al-Nasa’i is: “Allah curses whoever commits the deed of the people of Lut.” Allah curses whoever commits the deed of the people of Lut. Allah curses whoever commits the deed of the people of Lut.”
Imam al-Shawkani says: Those who commit this heinous offence deserve a punishment that will serve as an example and lesson for everyone. They should be sentenced to imprisonment that will restrain the lustful urges of the rebellious and sinful. In the words of the Qur’an, this is an obscene act that no one on earth had committed before the people of Lut. Therefore, the punishment for whoever commits their deed should likewise be severe and terrifying, like the punishment of the people of Lut. Allah caused them to sink beneath the earth, and all of them were utterly destroyed by that punishment. Islam has made the punishment for this offence so severe and terrifying only because its harmful effects and damage to individuals and society are extremely grave and immense. I quote the following harms from the book Islam and Medical Science (Al-Islam wa al-Tibb):
Aversion to women: Homosexuality makes men dislike and abhor women, and in some cases even renders a man incapable of intercourse with his wife. Thus, an important purpose of marriage—procreation—is defeated. If such a man happens to marry, his wife will be utterly unfortunate. She is compelled to remain deprived of the happiness, peace, love, affection, tenderness, and fondness that are essential and natural parts of married life. Consequently, she merely lives an uncertain and suspended life amid limitless mental torment. The wife of such a man has neither the status of a married wife nor that of a divorced wife.
Strain on the nerves: This evil habit imposes a constant conflict upon the offender’s mind and creates tremendous strain on his nerves. As a result of this strain, he suffers from a rare mental disorder that instills in him the fixed notion that he was not created as a man. Consequently, he is attracted to his own sex and feels no fascination or attraction toward women. A homosexual suffers not only from a rare type of mental disorder, but also from various nervous diseases that deprive him of the ordinary happiness and pleasure of life and strip him of his human and masculine qualities. In time, these mental and nervous illnesses also give rise to various incurable physical diseases.
Imbalance of the brain: In addition, homosexuality seriously disrupts the balance of the human brain. It scatters his thoughts, paralyzes his ideas and concentration, deadens his understanding, and weakens and disables his willpower. As a result, the natural waste-secretion activity of the endocrine glands, the adrenal glands, and other glands inside the human body decreases, and their functioning is impeded. The relationship between a homosexual and neuritis is extremely close. Consequently, stupidity, indecision, scattered thinking, and a lack of proper understanding appear in him.
Depression: Homosexuality is a direct cause of depression or a powerful means of producing it. For those already afflicted with the illness called depression, homosexuality doubles the disease.
A homosexual’s sexual desire remains unfulfilled: Homosexuality is an abnormal, rare, and inadequate method of satisfying the sexual impulse. It leaves a man’s sexual desire unsatisfied and incomplete, because it is not natural intercourse. Thus, it fails to satisfy the entire nervous system, severely frustrates the needs of the muscles, and generally exerts a harmful effect on the whole body. If we consider the physical nature of normal sexual intercourse between a man and a woman and the natural role played by the reproductive organs of both during intercourse, and then compare it with what occurs in homosexuality, we find a broad and far-reaching difference between the two. Moreover, it goes without saying that the place where this act is performed is in no way suited for it.
Loosening and tearing of the anal muscles: From another perspective, homosexuality may be seen as the tearing apart of the anus. The loosening of its muscles becomes a cause of inability to retain feces. For this reason, anyone who investigates these sinners will find that they are constantly soiled with repulsive waste, which continues to leak insensibly from their anus.
Morality and homosexuality:
Homosexuality is a severe moral perversion and mental illness. Every person afflicted with this defect becomes extremely immoral and perverted in nature. Their ability to distinguish right from wrong becomes almost lost. Their willpower remains weak. They possess neither moral awareness to condemn them for evil deeds nor a conscience to reproach them and turn them away from wrongdoing. Some of them do not even voluntarily refrain from attacking children and adolescents, nor do they hesitate to adopt harsh and violent methods to satisfy their perverted and vile sexual desires.
The relationship between health and homosexuality: In addition to everything mentioned so far, homosexuals also suffer from heart disease, and because their disease resistance becomes weak, they frequently suffer from various illnesses and ailments.
Its effect on the reproductive organs: Homosexuality weakens the main ejaculation centers in a man’s body, destroys the process by which semen is produced in those centers, and disrupts the formation of semen and its components. Shortly afterward, the ability to reproduce is lost and infertility appears. Thus, homosexuals gradually move toward becoming childless and disappearing.
Typhoid and dysentery: In addition to the infectious diseases previously mentioned as inevitable consequences of homosexuality, typhoid fever, dysentery, and other infectious diseases also spread through germs in waste discharged from the anus.
Other diseases of homosexuals: It goes without saying that the diseases spread by adultery also spread as a result of homosexuality. These diseases attack homosexuals themselves most severely, ruin their bodies, and eventually take their lives.
From the harms mentioned so far, we can clearly understand the rationale and scientific basis for declaring homosexuality forbidden in Islamic law; the validity of ordering severe punishment for the perpetrators of this offence; and the benefit of the ruling that they be eliminated and the world freed from their harm and evil.
The opinions of the jurists concerning homosexuality
Although the scholars unanimously agree that this offence is forbidden and that its perpetrators must necessarily be firmly suppressed and punished, they differ regarding the form and degree of punishment prescribed for it. Roughly three opinions may be identified on this matter:
1. One opinion is that the homosexual should be killed.
2. According to another opinion, the punishment for homosexuality is like that for adultery: the unmarried person is flogged, and the married person is stoned to death.
3. According to the third opinion, the homosexual is to receive ta‘zir, that is, a lighter punishment than the punishment for adultery.
The first opinion: This is the opinion of the Companions, al-Nasir, al-Qasim ibn Ibrahim, and Imam al-Shafi‘i. They say that both persons involved in homosexuality are to receive the death penalty, whether married or unmarried. They cite the following proofs in support of this:
1. The five authentic Hadith collections other than al-Nasa’i, as well as al-Hakim and al-Bayhaqi, narrated from Ibn ‘Abbas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Kill both of the two involved in the deed of the people of Lut.”
2. Al-Bayhaqi narrated that ‘Ali (may Allah be pleased with him) carried out stoning upon him. Imam al-Shafi‘i said: From this we establish the proof that both persons involved in this detestable act are to be stoned, whether married or unmarried.
3. Al-Bayhaqi narrated from Abu Bakr (may Allah be pleased with him) that, concerning a man’s homosexuality, he asked the Companions of the Messenger of Allah (peace and blessings be upon him) for their opinions. That day, ‘Ali (may Allah be pleased with him) expressed the strictest opinion, saying: “No nation other than the nation of a prophet has ever committed this detestable offence. You already know what punishment Allah inflicted upon that nation. My opinion is that this man should be burned with fire.” Abu Bakr (may Allah be pleased with him) immediately wrote to Khalid ibn al-Walid and ordered him to burn the man with fire. Imam al-Shawkani says: These hadiths may collectively be presented as evidence. However, they expressed differing opinions about how this punishment should be carried out upon the offender. Abu Bakr and ‘Ali (may Allah be pleased with them) said that he should first be killed with a sword and then burned with fire, because the offence is extremely grave. According to ‘Umar and ‘Uthman (may Allah be pleased with them), a wall should be toppled upon him and he should be crushed beneath it. Ibn ‘Abbas (may Allah be pleased with him) said that he should be thrown from a tall building. According to al-Sha‘bi, al-Zuhri, Malik, Ahmad, and Ishaq, he should be stoned. Al-Tirmidhi attributed this opinion to Malik, al-Shafi‘i, Ahmad, and Ishaq. Al-Nasa’i said: If an adulterer could be stoned twice, then the homosexual could be stoned. Al-Mundhiri said: Abu Bakr, ‘Ali, ‘Abdullah ibn al-Zubayr, and Hisham ibn ‘Abd al-Malik burned homosexuals with fire.
The second opinion: Sa‘id ibn al-Musayyab, ‘Ata ibn Abi Rabah, al-Hasan, Qatadah, al-Nakha‘i, al-Thawri, al-Awza‘i, Abu Talib, Imam Yahya, and al-Shafi‘i said that the homosexual is to be punished like an adulterer: the unmarried person is to be flogged and exiled, while the married person is to be stoned. Their evidence is as follows:
1. This is a type of adultery, because here one private organ is inserted into another private organ. Therefore, both perpetrators of homosexuality—married and unmarried—are covered by the evidence concerning married and unmarried adulterers. This is supported by the following hadith of the Messenger of Allah (peace and blessings be upon him): “When one man has intercourse with another man, both of them are adulterers.”
2. Even if it is assumed that the verses and hadiths concerning the punishment for adultery do not include the two homosexuals, by analogy they nevertheless fall under the category of adulterers.
The third opinion: Abu Hanifah, al-Mu’ayyid بالله, al-Murtada, and al-Shafi‘i favored giving the homosexual ta‘zir, that is, a punishment lighter than the punishment for adultery. Their argument is that homosexuality and adultery are not the same thing. Therefore, they cannot have the same ruling.
Imam al-Shawkani preferred the opinion of those who advocated killing and described the last-mentioned opinion as weak, because it contradicts the hadith. In reviewing the second opinion, he said: The hadith cited in support of killing both homosexuals without distinction applies only to homosexuals. This is because the verses and hadiths concerning the punishment for adultery distinguish between the married and the unmarried. Therefore, if homosexuality is brought under the verses and hadiths concerning adultery, that distinction must also be taken into account in this case. Homosexuality cannot be excluded from their scope by analogy, because there is no room for analogy in the presence of an explicit statement of the Hadith or Qur’an.
Masturbation
Male masturbation is contrary to good character and propriety. The jurists hold various opinions concerning it: some say it is forbidden; others say it is forbidden in some circumstances and obligatory in others; and others say it is disliked. Those who consider it forbidden are the Malikis, Shafi‘is, and Zaydis. Their evidence is that Allah has forbidden seeking sexual gratification anywhere except through a wife or a slave woman, and has commanded the private parts to be guarded under all circumstances. When someone masturbates outside these two exceptional circumstances, he exceeds the limits of what Allah has made lawful and engages in a forbidden act. Allah says in verses 5–7 of Surah al-Mu’minun:
وَالَّذِينَ هُمْ لِفُرُوجِهِمْ حَافِظُونَ إِلَّا عَلَى أَزْوَاجِهِمْ أَوْ مَا مَلَكَتْ أَيْمَانُهُمْ فَإِنَّهُمْ
غَيْرَ مَلُومِينَ، فَمَنِ ابْتَغَى وَرَاءَ ذَلِكَ فَأُولَئِكَ هُمُ الْعُدُونَ
“Those who guard their private parts, except with their wives or those whom their right hands possess, for then they are not blameworthy. But whoever seeks beyond that, it is they who are transgressors.”
Those who say that it is forbidden in some circumstances and obligatory in others are the Hanafis. They say that masturbation is obligatory for one who fears falling into adultery if he does not masturbate, because among two harmful acts, it is permissible to commit the lesser one.” They also said that masturbation to arouse sexual desire is forbidden. They further say that when sexual desire becomes uncontrollable, a man has neither a wife nor a slave woman, and he masturbates solely to relieve the arousal, it is permissible. The Hanbalis hold that this act is forbidden except when there is a fear of committing adultery or suffering harm to one’s health, while one has neither a wife nor a slave woman and lacks the ability to marry. Ibn Hazm considers it disliked and says that there is no sin in it, because touching the penis with the left hand is unanimously permissible. Since this much is permissible, causing ejaculation afterward cannot be forbidden, for Allah has said:
وَقَدْ فَصْلَ اللَّهُ لَكُمْ مَا حَرَّمَ عَلَيْكُمْ
“Allah has explained in detail to you what He has forbidden to you.” This act is not among the acts whose prohibition Allah has mentioned. Therefore, it is lawful, because Allah has said, “He created for you all that is on the earth.” The reason masturbation is disliked is that it is not a noble moral quality. It is reported that some of the early scholars considered it lawful, while others considered it disliked. Among those who considered it disliked were Ibn ‘Umar and ‘Ata. Ibn ‘Abbas, al-Hasan, and some eminent Companions ruled that it was lawful. Al-Hasan said: The Companions practiced it during warfare. Mujahid said: In the past, people would order young men to masturbate so that they would refrain from adultery. The same ruling applies in this matter to both women and men.
Female homosexuality
Female homosexuality is forbidden. All scholars agree on this. Ahmad, Muslim, Abu Dawud, and al-Tirmidhi narrated that the Messenger of Allah (peace and blessings be upon him) said: “No man should look at the private part of another man, and no woman should look at the private part of another woman. No man should lie under one garment with another man, and no woman should lie under one garment with another woman.” Female homosexuality is intercourse, but one woman’s sexual organ does not enter the other’s. Therefore, it does not incur a hadd (flogging or stoning), but ta‘zir—some comparatively lighter punishment—must be imposed. Similarly, if a man commits adultery with a woman without inserting his penis into her vagina, ta‘zir is likewise imposed.
Adultery with an animal
The scholars also agree that intercourse with an animal is forbidden. However, they differ concerning the punishment of the offender. It is narrated from Jabir ibn Zayd that whoever has intercourse with an animal is subject to the hadd. ‘Ali (may Allah be pleased with him) said that if he is married, he is to be stoned. Al-Hasan said that this act constitutes adultery. According to Abu Hanifah, Malik, al-Shafi‘i, al-Mu’ayyid بالله, al-Nasir, and Imam Yahya, ta‘zir is sufficient and obligatory for intercourse with an animal, because it is not adultery. According to another report, Imam al-Shafi‘i said that he is to be killed, because Ahmad, Abu Dawud, and al-Tirmidhi narrated from Ibn ‘Abbas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Kill the one who has intercourse with an animal and kill the animal as well.”
Ibn Majah narrated from Ibn ‘Abbas (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Kill whoever commits adultery with a permanently forbidden woman; and kill whoever has intercourse with an animal.”
Imam al-Shawkani said: “This hadith establishes that the animal should be killed. Concerning the reason for this, Abu Dawud and al-Nasa’i narrated that Ibn ‘Abbas (may Allah be pleased with him) was asked, ‘What crime did the animal commit?’ He said: ‘I do not think that the Messenger of Allah said this. However, there is no doubt that eating the meat of this animal is disliked, because that vile act was committed with it.’”
According to ‘Ali (may Allah be pleased with him) and Imam al-Shafi‘i, eating the meat of an animal that has been raped is forbidden, and it is to be slaughtered. Al-Qasimi, and according to another report al-Shafi‘i, Abu Hanifah, and Abu Yusuf, considered eating the meat of this animal makruh tanzihi. The author of al-Bahr said: Even if the animal is one whose meat is forbidden, it must still be killed so that a deformed offspring does not develop in its womb. It is said that a deformed offspring was born in an animal’s womb after a shepherd raped it.
Rape or forcible intercourse
When a woman is forcibly raped, that is, compelled to commit adultery, no hadd is carried out upon her. For Allah says in verse 173 of Surah al-Baqarah: “Whoever is compelled by necessity, without desiring disobedience or transgression, shall incur no sin.” The Messenger of Allah (peace and blessings be upon him) also said: “Responsibility for everything done mistakenly, unintentionally, or under compulsion has been lifted from my community.” During the time of the Messenger of Allah (peace and blessings be upon him), a woman was compelled to commit adultery, so he waived her hadd.
Compulsion into fornication can occur in two ways: physically assaulting a woman and forcibly having intercourse with her, that is, raping her; or frightening a woman into consenting to intercourse. Both are equivalent and fall under rape. There is no disagreement among the scholars on this matter. The disagreement concerns only whether a woman compelled into fornication must be given a dower. Imam Malik and al-Shafi‘i held that she must be given a dower. Imam Malik narrated in the Muwatta’ that ‘Abd al-Malik ibn Marwan (the Umayyad ruler) ordered a rapist to give a dower to a woman he had raped. Imam Abu Hanifah, however, said: That woman is entitled to no dower. The book Bidayat al-Mujtahid states: The basis of the disagreement is whether the dower is merely compensation for sexual intercourse or a gift from the husband to the wife. Those who say it is merely compensation for sexual intercourse hold that a dower applies in both lawful and unlawful intercourse. Those who say it is only a gift from the husband to the wife, which Allah has prescribed exclusively for married couples, hold that it is not obligatory upon the fornicator. However, Abu Hanifah’s view is the correct one in this matter.
Mistaken intercourse
When a man has someone other than his wife brought into his bridal chamber and is told, “Here is your wife,” or when he finds a woman in his bed and has intercourse with her, thinking she is his wife, or when he calls for his wife but another woman comes and he thinks she is his wife and has intercourse with her, no hadd applies to this man. Likewise, no hadd applies for any unlawful intercourse committed by mistake while believing it to be lawful. But if someone makes a mistake in unlawful intercourse, the hadd does apply. For example, if a man knowingly calls for a woman forbidden to him, then another woman comes and he has intercourse with her, thinking she is the woman he called for, the hadd applies to him. If, however, after calling for a forbidden woman, his wife comes and he has intercourse with her, thinking she is the forbidden woman he called for, no hadd applies, although he will be sinful because of his belief.
Virginity remaining intact
When four men testify against a woman that she committed fornication, and a number of trustworthy women testify that she is still a virgin, the hadd will not be carried out against her, because the accusation has become doubtful. In such a case, the witnesses will likewise not be subject to the punishment for false accusation. This is the view of Abu Hanifah, al-Shafi‘i, Ahmad, and the Zaydi Shi‘is.
Intercourse in a marriage whose validity is disputed
No hadd applies for intercourse within a marriage whose validity is disputed, such as a mut‘ah marriage, a shighar marriage, a halalah marriage, a marriage without a guardian and witnesses, marrying the wife’s sister during the waiting period following an irrevocable divorce, or contracting a fifth marriage while the fourth wife is irrevocably divorced and observing her waiting period. The disagreement among jurists concerning the validity of these marriages creates doubt regarding the lawfulness of intercourse, and the hadd is waived because of doubt. According to the Zahiri school, however, the hadd does apply in this case, because they consider every intercourse occurring on the basis of an invalid marriage subject to the hadd.
Intercourse in a void marriage
When there is consensus that a marriage is void—for example, marrying a fifth woman while four wives remain, marrying a married woman or one observing her waiting period, or marrying a woman who has been divorced three times without her marrying another man—intercourse in such marriages is considered fornication and the hadd applies. Even if he is a slave, this does not make him exempt.
4. Hadd al-Qadhf (the punishment for false accusation)
In the terminology of the Shariah, qadhf means making an accusation of fornication.
Making false accusations is forbidden
Protecting people’s honor and dignity is one of Islam’s principal objectives. In its view, preserving their good name and honor is extremely important. For this purpose, Islam strictly restrains the tongues of slanderers and blocks the way to seeking out the faults of innocent people. Islam has adopted stringent preventive measures so that uncontrolled people cannot hurt others’ emotions and feelings or damage their honor and dignity. It has most emphatically forbidden spreading obscenity, shamelessness, and fornication among the believers, so that social life may remain pure and free of this loathsome sin. For this very purpose, Islam has strictly prohibited accusing people of fornication. It has described this as a major sin and vile obscenity. It has made it obligatory to inflict eighty lashes upon the accuser, whether the accuser is a woman or a man. It has declared the accuser permanently ineligible to testify, described him as a fasiq, accursed, and expelled from Allah’s mercy, and announced that a painful punishment in this world and the Hereafter is decreed for him. An accusation will be considered worthy of attention and consideration only when its truth is established beyond doubt by conclusive evidence. This conclusive evidence is the testimony of four eyewitnesses that the accused person committed fornication. The Almighty Allah says in verses 5 and 6 of Surah al-Nur:
وَالَّذِينَ يَرْمُونَ الْمُحْصَنَتِ ثُمَّ لَمْ يَأْتُوا بِارْبَعَةِ شُهَدَاءَ فَاجْلِدُوهُمْ ثَمِنِينَ جَلْدَةً وَلَا تَقْبَلُوا لَهُمْ شَهَادَةً أَبَدًا ۚ وَ أُولَئِكَ هُمُ الْفَسِقُونَ ، إِلَّا الَّذِينَ تَابُوا مِنْ بَعْدِ ذلِكَ وَأَصْلَحُوا ، فَإِنَّ اللَّهَ غَفُورٌ رَّحِيمٌ ◌
“Those who accuse chaste women and do not produce four witnesses—flog them with eighty lashes and never accept their testimony. They are indeed transgressors. Except those who repent thereafter and reform themselves; surely Allah is Most Forgiving, Most Merciful.” In verses 23, 24, and 25 of Surah al-Nur, He says:
إِنَّ الَّذِينَ يَرْمُونَ الْمُحْصَنَتِ الْغَفِلَتِ الْمُؤْمِنَتِ لُعِنُوا فِي الدُّنْيَا وَالْآخِرَةِ وَلَهُمْ عَذَابٌ عَظِيْمٌ ◌ يَوْمَ تَشْهَدُ عَلَيْهِمْ الْسِنَتُهُمْ وَأَيْدِيهِمْ وَأَرْجُلُهُمْ بِمَا كَانُوا يَعْمَلُونَ ◌ يَوْمَئِذٍ يُوَفِّيهِمُ اللَّهُ دِينَهُمُ الْحَقِّ وَيَعْلَمُونَ أَنَّ اللَّهَ هُوَ الْحَقُّ الْمُبِينُ ◌
“Those who accuse chaste, unsuspecting, believing women are cursed in this world and the Hereafter, and theirs is a tremendous punishment. On the Day when their tongues, hands, and feet will testify against them concerning what they used to do, on that Day Allah will repay them in full for what they deserve, and they will know that Allah is the manifest Truth.” Allah says in verse 19 of the same surah:
إِنَّ الَّذِينَ يُحِبُّونَ أَنْ تَشِيعَ الْفَاحِشَةُ فِي الَّذِينَ آمَنُوا لَهُمْ عَذَابٌ أَلِيمٌ لَا فِي الدُّنْيَا وَالْآخِرَةِ ، وَاللَّهُ يَعْلَمُ وَأَنْتُمْ لَا تَعْلَمُونَ
“Those who love for indecency to spread among the believers will have a painful punishment in this world and the Hereafter. Allah knows, and you do not know.”
Al-Bukhari and Muslim narrated that the Messenger of Allah, peace and blessings be upon him, said: “Guard yourselves against the seven destructive sins.” The Companions said: “O Messenger of Allah, what are they?” He said: “Associating partners with Allah, practicing magic, killing a person whom Allah has forbidden killing, consuming usury, consuming the property of an orphan, fleeing from the battlefield, and accusing chaste, unsuspecting believing women.”
These verses containing this prohibition were revealed on the occasion of the incident in which the Mother of the Believers, ‘A’ishah, may Allah be pleased with her, was accused. ‘A’ishah, may Allah be pleased with her, said: “When the verses declaring my innocence from the accusation were revealed, the Messenger of Allah, peace and blessings be upon him, stood on the pulpit, mentioned them, and recited the relevant verses of the Qur’an. As soon as he descended from the pulpit, he ordered that the punishment for false accusation be administered to the two accusers, Hassan and Mistah, and to a woman named Himnah, and it was administered.” —Abu Dawud.
Conditions for the punishment for false accusation
There are certain conditions for an accusation to be punishable. Unless these conditions are fulfilled, the accusation does not warrant the punishment of eighty lashes. Some of these conditions must be fulfilled by the accuser, and others by the person who has been accused.
Conditions required of the accuser
The conditions that must be fulfilled by the accuser are: 1. being of sound mind; 2. being an adult; and 3. being free. These are the foundations of legal responsibility. When they are absent, responsibility is not imposed. If a mad person, child, or coerced person makes an accusation against someone, no hadd is carried out against him. The Messenger of Allah, peace and blessings be upon him, said: “Three persons are exempt from all responsibility: the sleeping person until he awakens, the child until he reaches adulthood, and the insane person until he regains sound reason.” He also said: “My community has been exempted from responsibility for sins committed unintentionally, obligatory acts omitted by mistake, and sins committed under coercion.” However, when a child is so close to adulthood that his accusation is hurtful, he will be given such a light discretionary punishment (ta‘zir) as is deemed appropriate.
Conditions required of the person who has been accused
The following condition must be fulfilled by the person who has been accused: 1. being of sound mind. The hadd for false accusation was instituted so that the accuser may be rebuked and reprimanded for harming, distressing, and harassing the accused. But an accusation causes no harm to a person who is not of sound mind. Therefore, the hadd will not be carried out against one who accuses such a person.
2. Being an adult: Similarly, the person who has been accused must be an adult. Thus, the hadd will not be imposed on one who accuses an underage boy or girl. However, if someone accuses, before she reaches adulthood, an underage girl with whom intercourse is possible of fornication, most scholars hold that this is not an accusation warranting the hadd. It is not fornication, because this girl is not liable to the hadd for fornication. The accuser will nevertheless receive ta‘zir. Imam Malik said: This accusation does warrant the hadd. Ibn al-‘Arabi said: The matter is doubtful. Imam Malik gave priority to the honor of the accused, whereas the others gave priority to sparing the accuser’s back. In reality, it is better to give priority to the honor of the accused, because the accuser violated privacy with his tongue. Therefore, the hadd became obligatory upon him.
Ibn al-Mundhir said: Imam Ahmad supports imposing the hadd on one who accuses a nine-year-old girl and on one who accuses an underage boy. Ishaq said: When a boy capable of intercourse is accused of fornication, or a girl older than nine is accused of fornication, the hadd will be imposed on the accuser. Ibn al-Mundhir said: One who accuses an underage boy or girl is not liable to the hadd, because it is a lie. However, since it is hurtful, the accuser will receive ta‘zir.
3. Being Muslim: The person who is accused must be Muslim. If the person is a non-Muslim, most scholars hold that the hadd will not be imposed. If the non-Muslim is the accuser, however, and a Jewish or Christian person accuses free Muslims, he will receive eighty lashes, just like a Muslim.
4. Being free: If a free person accuses a slave, no hadd will be imposed for the benefit of that slave, whether the slave belongs to the accuser or to someone else, because his status differs from that of a free person. Nevertheless, it is forbidden for a free person to accuse a slave. Al-Bukhari and Muslim narrated that the Messenger of Allah, peace and blessings be upon him, said: “Whoever accuses his slave of fornication, and the accusation is untrue, will have the hadd carried out against him on the Day of Resurrection.”
The scholars said: The reason this punishment is applied in the Hereafter is that then no person will own another; young and old, slave and free, will all be equal. There, no one will have superiority over another except through piety. Therefore, on that Day, the wronged person will take retribution from the wrongdoer unless he forgives him. In this world, no provision was made for a slave to take retribution from a free person because that would corrupt the relationship between free people and slaves. Free people would have no distinct status, nor would they retain authority over slaves. If someone accuses a person thinking him to be a slave, and it later becomes clear that he is free, the hadd will be imposed on the accuser. This is Ibn al-Mundhir’s view. According to al-Hasan al-Basri, the hadd will not be imposed. Ibn Hazm, opposing most scholars, said that the hadd will be imposed on one who accuses a slave; in his view, there is no distinction in this matter between slave and free. He said: “There is no value in the claim that male and female slaves have no honor or status. In reality, every believer possesses great honor. An ignorant slave may at times be better in Allah’s sight than a Qurayshi caliph.” In fact, Ibn Hazm’s view is correct and just, provided that it does not conflict with the aforementioned hadith.
5. Chastity: This means being free from fornication. The person accused must be chaste, regardless of whether he is free from other sins. Even if a person committed fornication in his early youth, then repented and reformed, and lived for a long time afterward, if someone later accuses him of fornication, the hadd will not be imposed on the accuser. However, this accusation warrants ta‘zir, because he has disclosed something that must be kept concealed.
Conditions relating to the offense of which the person was accused
For the hadd to be imposed, the accusation must explicitly mention fornication or use an expression whose meaning clearly conveys it. In this matter, saying it verbally and communicating it in writing are equivalent.
An example of an explicit statement is for the speaker to say, “O fornicator,” or words conveying a similar meaning, such as denying lineage from him. An example of an accusation by insinuation is saying during a quarrel or argument: “I am not a fornicator, and neither was my mother.” The scholars differ concerning accusations by insinuation. Imam Malik said: If the language of the insinuation is understood, it falls within the category of an explicit accusation, because according to customary usage and terminology, an insinuation can sometimes serve as a substitute for an explicit statement, even when the words themselves are used with another meaning. ‘Umar, may Allah be pleased with him, adopted this view. Imam Malik narrated from ‘Umarah bint ‘Abd al-Rahman that two men exchanged insults during the caliphate of ‘Umar ibn al-Khattab. One of them said to the other: “By Allah, neither my father nor my mother is a fornicator.” ‘Umar, may Allah be pleased with him, consulted the Companions about the matter. One said: “He has merely praised his father and mother.” The others said: “He could have praised his father and mother in another way. We think the hadd should be imposed on him.” So ‘Umar, may Allah be pleased with him, imposed the hadd by giving him eighty lashes. Ibn Mas‘ud, Abu Hanifah, al-Shafi‘i, al-Thawri, Ibn Abi Layla, Ibn Hazm, the Zaydi Shi‘is, and, according to one narration, Imam Ahmad, on the other hand, said: No hadd applies for an insinuation, because it may bear more than one meaning. When there is more than one possible meaning, doubt arises, and doubt waives the hadd. Abu Hanifah and al-Shafi‘i nevertheless held that the person who makes such an insinuation or taunt should receive ta‘zir. The author of al-Rawdah al-Nadiyyah, however, indicated the correct approach, saying: The true meaning of accusing chaste women as mentioned in Allah’s Book is that the accuser utters words which, linguistically, technically, or according to the Shariah, convey an accusation of fornication, and the circumstances also show that the speaker intended nothing by his words other than an accusation of fornication. Moreover, he does not offer any acceptable interpretation by which another meaning could be understood from his words. In such a case, without doubt, the hadd for false accusation becomes obligatory upon the speaker. Similarly, if he says words that do not ordinarily convey fornication, or convey it only rarely, but admits that he intended to accuse someone of fornication, the hadd for false accusation must be imposed upon him. Conversely, if he uses words that could mean fornication, but neither the circumstances nor anything preceding or following them proves that he intended an accusation of fornication, no liability falls upon him, because there is no basis for accusing someone on mere possibility.
How is the hadd for false accusation proven?
This hadd is established in two ways: 1. by the accuser’s confession; and 2. by the testimony of two upright persons.
The worldly punishment of the accuser
If the accuser cannot produce witnesses to support what he has said, two punishments become obligatory upon him: first, eighty lashes; and second, the permanent rejection of his testimony and his designation as a fasiq. This is because he becomes unjust and untrustworthy before Allah and the people. Both punishments are mentioned in the previously cited verse 5 of Surah al-Nur. The scholars have no disagreement concerning this punishment if the accuser does not repent and reform.
There are two further questions concerning this hadd on which the scholars have differed. The first question is: Is the punishment of a male or female slave the same as that of a free person? The second is: When the accuser repents, does his trustworthiness return, and will his testimony be accepted?
The answer to the first question is that when a slave accuses an upright, free person of fornication, the hadd is certainly obligatory upon him. However, the hadith does not clearly state whether this hadd is equal to that of a free person or half of it. Consequently, the jurists have expressed different opinions. Most jurists hold that the slave’s punishment is half that of a free person, namely forty lashes, because this punishment is reduced by half just as the punishment for fornication is. Allah says in verse 25 of Surah al-Nisa’:
فَإِنْ أَتَيْنَ بِفَاحِشَةٍ فَعَلَيْهِنَّ نِصْفُ مَا عَلَى الْمُحْصَنَتِ مِنَ الْعَذَابِ
“If they commit an indecency, then their punishment is half that of free chaste women.”
Imam Malik said: … ‘Abdullah ibn ‘Amir said: “I lived through the eras of ‘Umar ibn al-Khattab, ‘Uthman ibn ‘Affan, and the other caliphs. I never saw any of them give a slave more than forty lashes as punishment for false accusation.” On the other hand, Ibn Mas‘ud, al-Zuhri, ‘Umar ibn ‘Abd al-‘Aziz, Qabisah, al-Awza‘i, and Ibn Hazm said: “He will be given eighty lashes,” because this is a punishment prescribed as a right of people. The crime strikes at the honor and dignity of the person who is accused, and freedom or slavery does not alter the nature of the crime.
Ibn al-Mundhir said: The first view is practiced throughout all regions of the Muslim world, and I support it. The book al-Musawwa states that this is the accepted view among the scholars. The author of al-Rawdah al-Nadiyyah preferred the second view, saying: “The verse encompasses both free people and slaves. Yet a slave’s accusation of a free person is more dangerous than a free person’s accusation of another free person. Nowhere in the Qur’an or hadith does it state that the punishment for false accusation is greater in the case of a slave. The provision of half punishment in verse 25 of Surah al-Nisa’ relates to the punishment for fornication. It is illogical to connect one matter to the other, particularly when one concerns purely a right of Allah and the other—the punishment for false accusation—concerns a right of a servant.”
The answer to the second question is that the jurists unanimously state that the testimony of an accuser will not be accepted until he repents, because what he did made him a fasiq. A person who is a fasiq is neither upright nor trustworthy, while uprightness is a condition for accepting testimony. Since he has not repented, his fisq remains. Although the punishment of flogging serves as expiation for his sin and saves him from punishment in the Hereafter, it does not remove his fisq, which is the reason his testimony is rejected. If he repents with sincere repentance, however, the jurists have two opinions as to whether his trustworthiness returns and his testimony is accepted:
1. The first view is that if he sincerely repents, the testimony of a person punished for false accusation may be accepted. This is the view of Imam Malik, al-Shafi‘i, Ahmad, al-Layth, ‘Ata’, Sufyan ibn ‘Uyaynah, al-Sha‘bi, al-Qasim, Salim, and al-Zuhri. ‘Umar, may Allah be pleased with him, said to a man who had been punished for false accusation: “If you repent, I will accept your testimony.”
2. The second view is that his testimony will not be accepted even if he repents. This is the view of the Hanafis, al-Awza‘i, al-Thawri, al-Hasan, Sa‘id ibn al-Musayyab, Shurayh, Ibrahim al-Nakha‘i, and
Shaddad ibn Jubayr. The basis of this disagreement is the difference over the interpretation of Allah’s statement in Surah al-Nur: “Never accept their testimony; they are fasiq, except those who repent…” Those who understand the concluding exception, “except those who repent,” to refer both to the acceptance of testimony and to being fasiq say that their testimony will be accepted after repentance. Those who understand it to refer only to being fasiq hold that, no matter how sincerely he repents, his testimony will not be accepted. Through repentance he is only freed from fisq, meaning that he is spared punishment in the Hereafter.
How does one repent?
‘Umar, may Allah be pleased with him, said: The repentance of an accuser will be accepted only when, in the case of an accusation not warranting the hadd, he admits that he was lying. He said to those who had testified against al-Mughirah: “Whoever among you admits that he was lying, I will permit him to testify in the future; and whoever does not do so, I will also permit him to testify.” Shibl ibn Ma‘bad and Nafi‘ ibn al-Harith admitted that they had lied and repented, whereas Abu Bakrah did not do so. Consequently, his testimony continued to be accepted. This is the position followed by the Shafi‘i school and the people of Madinah. Another group of scholars said that admitting oneself to be a liar is not necessary. It is sufficient to reform oneself, change one’s conduct, regret making the false accusation, seek forgiveness, and never repeat that wrongdoing. This is how he must repent. This was also the view of Imam Malik and Ibn Jarir.
Slander by parents against their child:
Abu Thawr and Ibn al-Mundhir said: If a father or mother slanders their son, the hadd should also be carried out against them, in accordance with the explicit wording of the Qur’an, since there is no basis for distinguishing between slanderers. According to the Hanafis and Shafi‘is, however, the hadd should not be carried out, because it is a condition that the slanderer not be the father or mother of the person slandered. The reason is that if a father or mother kills their child, they are not killed in retaliation. Therefore, since slander is a far lesser offense than murder, it is even more appropriate that the hadd not be carried out against them for slander. They do, however, support imposing ta‘zir on the father or mother, because slander is a painful and harmful act.
Repeatedly slandering the same person
When someone repeatedly slanders the same person and the hadd has not been carried out against him even once for any of them, only one hadd will be carried out against him. If he slanders again after the hadd has been carried out once, the hadd will be carried out against him a second time. If he slanders again after the hadd has been carried out a second time, it will be carried out against him a third time. In this manner, the slanderer will be punished for each slander.
Slander at the group level
When a slanderer accuses a group of people of adultery, the jurists have three different opinions concerning him:
1. The first opinion: Only one hadd will be carried out against him. This is the opinion of Imam Abu Hanifah, Malik, Ahmad, and al-Thawri.
2. The second opinion: One hadd must be carried out against him for each slander. This is the opinion of al-Shafi‘i.
3. The third opinion: If he slanders them all with the same expression, such as saying, “O group of adulterers,” only one hadd will be carried out against him. But if he slanders each one separately by saying, “O adulterer,” then the hadd will be carried out against him as many times as the number of people to whom he said this.
Ibn Rushd said: The strongest proof in favor of carrying out only one hadd against someone who slanders a group is the hadith narrated by Anas. Anas narrated that Hilal ibn Umayyah accused his wife of adultery with Shurayk ibn Samha. The matter was immediately brought before the Messenger of Allah (peace and blessings be upon him). He initiated li‘an (the exchange of curses) between the husband and wife, but did not impose the punishment for adultery on Shurayk. When someone accuses his wife of adultery with another man, this is the unanimously accepted procedure. As for the jurists who believe that the hadd must be carried out for each person, their strongest argument is that this is a human right. Thus, if some of those who were slandered forgive him but not all of them, the hadd will not be annulled. Those who distinguish between slandering with one expression and with multiple expressions, and between slandering in one sitting and in several sittings, argue that the number of hudud should correspond to the number of slanders. For when the number of victims and the multiplicity of the slanders are combined, the number of hudud becomes more than one.
Is the hadd a right of Allah or a human right?
According to Imam Abu Hanifah, the punishment for slander, or hadd al-qadhf, is a right of Allah. This means that once it comes to the ruler’s attention, it becomes obligatory for him to enforce it, whether or not the victim demands the punishment. Even if the victim forgives him, the punishment will not be annulled. If the slanderer repents, that will benefit him in the Hereafter, but this benefit is confined to him and Allah. Like the punishment for adultery, the punishment for slander is also reduced by half for a slave woman. According to Imam al-Shafi‘i, on the other hand, it is a human right. Therefore, if the victim does not demand the punishment, the ruler cannot enforce it. If the victim forgives him, the punishment is annulled; if the victim does not forgive him, the heirs may demand it, and it will be annulled if the heirs forgive him. If the victim does not forgive him, the slanderer’s repentance will be of no benefit.
When is the punishment for slander annulled?
The punishment for slander will be annulled if the slanderer can produce four witnesses. This is because the witnesses establish through their testimony that he did not make a false accusation for which he deserves punishment. Rather, through their testimony they establish that adultery took place. Therefore, in this case the hadd for adultery will be carried out against the accused, since his adultery has been proven. The punishment for slander will likewise be annulled if the accused admits the truth of the accusation of adultery against him. If a wife accuses her husband of adultery, the hadd will be carried out against her once the necessary conditions are fulfilled. If, on the other hand, a husband accuses his wife of adultery and does not produce witnesses, the punishment for slander will not apply to the husband. Rather, li‘an will be conducted between the husband and wife.
5. The punishment for apostasy
Definition of an apostate
The root of the word murtadd is riddah, which literally means to return; murtadd therefore literally means one who returns. Here, however, it specifically means returning to disbelief. Technically, it means that a sane, adult Muslim voluntarily and knowingly returns from Islam to disbelief, without being compelled in any way, whether male or female. Thus, the apostasy of an insane person or a child is not taken into consideration, because the Messenger of Allah (peace and blessings be upon him) said: “Three are exempted from responsibility: the sleeping person until he awakens, the child until he reaches maturity, and the insane person until he regains sound reason.” (Ahmad, Abu Dawud, al-Tirmidhi, al-Nasa’i, and Ibn Majah.) If someone is compelled to utter words of disbelief, this does not expel him from Islam so long as his heart remains firm in faith. ‘Ammar ibn Yasir was compelled to utter words of disbelief, and consequently uttered them. On this occasion Allah revealed:
مَنْ كَفَرَ بِاللَّهِ مِنْ بَعْدِ إِيْمَانِهِ إِلَّا مَنْ أُكْرِهَ وَقَلْبُهُ مُطْمَئِنَّ ۚ بِالْإِيْمَانِ وَلَكِنْ مِّنْ شَرَحَ بِالْكُفْرِ صَدْرًا فَعَلَيْهِمْ غَضَبٌ مِّنَ اللَّهِ ، وَلَهُمْ عَذَابٌ عَظِيْمٌ ◌
Meaning: Whoever disbelieves in Allah after having believed, and opens his heart to disbelief, upon him will be Allah’s wrath, and for him is a tremendous punishment. Except for the one who is compelled to disbelief while his heart remains steadfast in faith.” (Surah al-Nahl: 106)
Ibn ‘Abbas said: The polytheists seized and tortured ‘Ammar, his father, his mother Sumayyah, Suhayb, Bilal, and Khabbab. They tied Sumayyah between two camels and thrust a spear into her private parts, saying to her, “You accepted Islam only for that man”—meaning Yasir. Then she and her husband were killed. These two were the first martyrs of Islam. ‘Ammar was compelled to utter with his mouth the words of disbelief they wanted, and thus escaped being killed. When he later related the incident to the Messenger of Allah (peace and blessings be upon him), he asked ‘Ammar, “How do you feel in your heart?” ‘Ammar replied, “Steadfast in faith.” The Messenger of Allah (peace and blessings be upon him) then said, “If they compel you again to utter words of disbelief, then you too should utter them again.”
If a disbeliever abandons his religion and adopts another religion of disbelief, is he also considered an apostate?
Our answer to this is that a Muslim becomes an apostate as soon as he leaves Islam, and Allah’s ruling concerning apostasy applies to him. The question arises: Is apostasy confined to Muslims who leave Islam, or is a non-Muslim also called an apostate when he abandons his religion and adopts another religion of disbelief? The clear answer is that if a disbeliever abandons his own religion and adopts another religion of disbelief, he will be allowed to remain in his new religion, and no restriction will be imposed on him in this matter. He has merely changed from one false religion to another that resembles his former religion in being false. From Islam’s perspective, all religions of disbelief are one religion. On the other hand, when someone changes from Islam to another religion—God forbid!—he has changed from guidance and the true religion to misguidance and disbelief. This is the view of Imam Malik and Abu Hanifah. Allah says:
وَمَنْ يَبْتَغِ غَيْرَ الْإِسْلَامِ دِينًا فَلَنْ يُقْبَلَ مِنْهُ ◌
“Whoever seeks a religion other than Islam, it will never be accepted from him.” (Surah Al ‘Imran: 85)
Al-Tabarani narrated from Ibn ‘Abbas that the Messenger of Allah (peace and blessings be upon him) said:
“Whoever changes his religion, kill him.”
Two opinions have been reported from Imam al-Shafi‘i on this matter. One is that if the convert has converted to Islam, the conversion will be accepted; otherwise, he will be killed. One of Imam Ahmad’s two opinions is similar. The other is that if he converts to a religion equal to or superior to his former religion, the conversion will be accepted; but if he adopts an inferior religion, it will not be accepted. For example, if a Jew converts to Christianity, this will be accepted, because both religions are equal and comparable in being divinely revealed religions. Both religions have been corrupted, and Islam has abrogated and invalidated both of them. Similarly, if a fire worshipper converts to Judaism or Christianity, this too will be accepted, because he has converted to a superior religion—that is, from polytheism to a divinely revealed religion. Since conversion to an equal religion is permitted, conversion to a superior religion is even more deserving of approval
and acceptance. But if a Jew or Christian converts to fire worship, this will neither be accepted nor approved, because it amounts to conversion to an inferior religion.
A Muslim may not be declared a disbeliever on account of committing sins
Islam has two components: creed and Shari‘ah. Creed includes belief in Allah, belief in prophethood, and belief in the Hereafter. The Shari‘ah consists of six matters:
1. Worship, such as prayer, fasting, pilgrimage, zakat, and so on.
2. Etiquette and character, such as truthfulness, fulfilling promises, and maintaining trusts.
3. Transactions, such as buying and selling, financial dealings, and all activities relating to family relations.
4. Family relations, such as marriage, divorce, and so on.
5. Penal law, such as hudud and qisas.
6. International relations, such as various agreements, treaties, and so on.
Thus we see that Islam is a sound way of life encompassing all the rules and regulations governing every aspect and sphere of life. This is what is generally meant by Islam. This is also what is known from the Qur’an and Sunnah. Likewise, Muslims have understood it this way from the beginning of Islam and have implemented it in their individual and collective lives.
However, people are not equal in intelligence, ability, resolve, and awareness. Some are highly intelligent and others less so; some possess great capacity for work and others little; some are industrious and others inactive; some are persevering and others lazy and averse to work. Each person differs in physical, mental, intellectual, and spiritual strength and ability. Because of these differences, some people are closer to complete Islam, while others are farther from it to varying degrees. The extent of this distance is governed by each person’s personal and surrounding circumstances, as well as by the general conditions and environment. Allah says:
ثُمَّ أَوْرَثْنَا الْكِتَبَ الَّذِينَ اصْطَفَيْنَا مِنْ عِبَادِنَا ۚ فَمِنْهُمْ ظَالِمٌ لِنَفْسِهِ ، وَمِنْهُمْ مُقْتَصِدٌ ۚ وَمِنْهُمْ سَابِقٌ بِالْخَيْرَتِ بِإِذْنِ اللَّهِ ۚ
Meaning: “Then We gave the Book as an inheritance to those We chose from among Our servants. Among them is one who wrongs himself, among them is one moderate, and among them is one foremost in good deeds by Allah’s permission.” (Surah Fatir: 32)
Yet this distance from complete Islam does not expel a person from Islam so long as he maintains wholehearted and steadfast allegiance to this religion. Thus, when a Muslim utters words that convey disbelief but does not intend to convey that meaning, or commits an act that outwardly identifies or characterizes him as a disbeliever or non-Muslim although its doer did not intend thereby to abandon Islam and become a disbeliever, he may not be judged a disbeliever. No matter how deeply a Muslim engages in sin or commits offenses, he remains a Muslim and may not be called an apostate. It is narrated in al-Bukhari that the Messenger of Allah (peace and blessings be upon him) said: “Whoever testifies that there is no god but Allah, faces our qiblah, prays as we pray, and eats the meat of animals slaughtered by us is a Muslim. He has the same rights as other Muslims and bears the same responsibilities as other Muslims.”
The Messenger of Allah (peace and blessings be upon him) warned Muslims not to accuse one another of disbelief, because this is a grave offense. Muslim narrated from Ibn ‘Umar that the Messenger of Allah (peace and blessings be upon him) said: “When a person calls his brother a disbeliever, disbelief must fall upon one of the two.”
When does a Muslim become an apostate?
A Muslim may not be judged outside Islam and an apostate until his heart becomes open to disbelief, his mind finds peace in it, and he actually enters disbelief. Allah Most High said: “Whoever opens his heart to disbelief, upon him is Allah’s curse.” The Messenger of Allah (peace and blessings be upon him) said: “Actions are judged by intentions. A person receives only what he intended.” Since what lies in a person’s heart is unseen and no one knows it except Allah, conclusive evidence must emerge that his heart has embraced disbelief, with no room for another interpretation. Imam Malik even said: “If a person says or does something that is disbelief according to ninety-nine interpretations but faith according to only one interpretation, his statement or action will be interpreted as faith.”
Some signs indicating disbelief
1. Denying matters known to be integral parts of Islam: such as Allah’s oneness—that is, the truth that He is the Creator of the universe—the existence of the angels, the prophethood of Muhammad (peace and blessings be upon him) and his being the final Prophet, the Qur’an as revelation sent down by Allah, the Resurrection and the Hereafter, and prayer, fasting, pilgrimage, and zakat as obligations.
2. Considering lawful something whose prohibition as a forbidden act or thing is unanimously agreed upon by the entire Muslim community, such as alcohol, adultery, usury, eating pork, and regarding the shedding of innocent people’s blood and plundering their property as lawful. (However, if someone declares something of this kind lawful on the basis of a particular interpretation, he may not be called a disbeliever. For example, the Kharijite group, on the basis of a particular interpretation, considered killing the Companions and plundering their property lawful, and Qudamah ibn Maẓ‘un considered drinking alcohol lawful. Nevertheless, most jurists judged that they were not disbelievers.)
3. Declaring forbidden something concerning whose lawfulness Muslims are unanimous, such as declaring pure and lawful things forbidden.
4. Insulting or mocking any of Allah’s prophets.
5. Insulting Islam, ridiculing or criticizing the Qur’an or hadith, abandoning judgment and arbitration according to the Qur’an and hadith, and giving man-made law precedence over the Qur’an and Sunnah.
6. Claiming that revelation is sent down to him.
7. Throwing the Qur’an and the books of hadith into a place where refuse is discarded or into a garbage heap, with contempt and disdain.
8. Showing contempt for or mocking any of Allah’s names, any of His commands and prohibitions, or His authority. However, if someone has only recently accepted Islam and therefore does not know its rules, prohibitions, and boundaries, he may not be declared a disbeliever. If he rejects any of these out of ignorance, there is no basis for declaring him a disbeliever.
There are certain rulings about which Muslims are unanimous, but which no one except scholars knows. Therefore, those who deny them may not be called disbelievers; rather, they are excused on account of ignorance, because sufficient knowledge of them has not spread among ordinary people. Examples include the prohibition of marrying a woman whose maternal or paternal aunt is already married to the man, the exclusion of an intentional killer from inheritance, and a grandmother’s entitlement to one-sixth of the inheritance. However, intrusive thoughts and temptations that arise in people’s minds do not fall under this category, because Allah does not hold people accountable for them. Muslim narrated from Abu Hurayrah that the Messenger of Allah (peace and blessings be upon him) said: “Allah has pardoned my community for the intrusive thoughts and temptations that arise within them on their own, so long as they do not speak or act upon them.” Muslim also narrated from Abu Hurayrah: “Some of the Companions of the Messenger of Allah (peace and blessings be upon him) came to him and asked, ‘O Messenger of Allah, thoughts sometimes occur to us that we are afraid even to utter.’ He asked, ‘Do you really experience that?’ They said, ‘Yes.’ He said, ‘That is genuine faith.’” (That is, being afraid even to utter such thoughts, let alone turn them into beliefs, is a sign of complete faith.) Muslim also narrated from Abu Hurayrah that the Messenger of Allah (peace and blessings be upon him) said: “As people continue asking questions, a time will come when they will ask: We understand that Allah created all these things, but who created Allah? Whoever finds such a question arising in his mind should say: I have believed in Allah.”
The punishment of an apostate
Apostasy is an offense that invalidates all the good deeds performed before apostasy and makes severe punishment in the Hereafter inevitable. Allah Almighty says:
وَمَنْ يَرْتَدِدْ مِنْكُمْ عَنْ دِينِهِ فَيَمُتْ وَهُوَ كَافِرٌ فَأُولَئِكَ حَبِطَتْ أَعْمَالُهُمْ فِي الدُّنْيَا وَالْآخِرَةِ ۖ وَأُولَئِكَ أَصْحَابُ النَّارِ هُمْ فِيهَا خَلِدُونَ
“Whoever among you abandons his religion and dies as a disbeliever, their deeds will become worthless in this world and the Hereafter, and they will be the inhabitants of the Fire. They will remain there forever.” (Surah al-Baqarah: 217)
That is, whoever turns from Islam to disbelief, remains in that state, and eventually dies as a disbeliever will have all his good deeds rendered void and futile, and will be deprived of their benefits in this world. Consequently, he will not receive the ordinary rights of Muslims. He will also be deprived of the blessings of the Hereafter and will be cast into everlasting painful punishment. In addition, Islam has prescribed for an apostate the highest punishment in this worldly life, in addition to the inevitable painful punishment of the Hereafter. This punishment is that he is to be killed. (If a Muslim kills him on his own initiative, he will not be convicted of the offense of murder. However, for taking the law into his own hands in an attempt to display bravery by bypassing the ruler, ta‘zir—a lesser disciplinary punishment—will be imposed on him.)
Al-Bukhari and Muslim narrated from Ibn ‘Abbas that the Messenger of Allah (peace and blessings be upon him) said: “Whoever changes his religion, kill him.” Al-Bukhari narrated from Ibn Mas‘ud that the Messenger of Allah (peace and blessings be upon him) said: “It is not lawful to kill a Muslim except for one of three things: disbelief after being a Muslim, adultery after marriage, and killing someone without just cause.” Al-Daraqutni and al-Bayhaqi narrated from Jabir that when a woman named Umm Marwan apostatized, the Messenger of Allah (peace and blessings be upon him) ordered that Islam be presented to her: if she repented, then good; otherwise, she was to be killed. In the end, the woman refused to accept Islam again and was killed. It is also well known that Abu Bakr al-Siddiq fought those who had apostatized in Arabia until they returned to Islam. There is no disagreement among the scholars that killing an apostate is obligatory. The only disagreement concerns an apostate woman. Imam Abu Hanifah said that if a woman apostatizes, she is not to be killed; rather, she is to be imprisoned. Each day she is then brought out, Islam is presented to her, and she is asked to repent. This continues until she returns to Islam or dies, because the Messenger of Allah (peace and blessings be upon him) prohibited killing women.
Other jurists have opposed this view. They said that the punishment of an apostate woman is the same as that of an apostate man, and is completely equal in both cases, because there is no difference between women and men in the consequences and harm of apostasy. Furthermore, the hadith narrated by Mu‘adh ibn Jabal states that when the Messenger of Allah (peace and blessings be upon him) sent him to Yemen, he said: “If any man abandons Islam, invite him to return to Islam. If he returns, then good; otherwise, kill him. If any woman abandons Islam, invite her to return. If she returns, then good; otherwise, kill her.” This is a clear statement that resolves the dispute. Al-Hafiz said that the hadith is hasan.
Al-Bayhaqi and al-Daraqutni narrated that a woman named Umm Qarfah accepted Islam and then became a disbeliever again. Abu Bakr (may Allah be pleased with him) invited her to repent, but she did not repent, so he killed her.
The hadith prohibiting the killing of women applies in the context of warfare, because women are weak and do not participate in fighting. This is the reason the Messenger of Allah (peace and blessings be upon him) prohibited killing women. One narration states that when the Messenger of Allah (peace and blessings be upon him) saw a slain woman, he said, “This woman did not fight.” He then prohibited killing women.
Women share equally with men in all punishments; there is no exception in this regard. Thus, just as the punishment of stoning is carried out against her, so too is the punishment for apostasy carried out against her. No distinction is made.
The Rationale for the Death Penalty for Apostasy
Islam is a complete way of life. On the one hand, it combines religious and state laws; on the other, it encompasses principles governing worship and warfare. Just as the Qur’an and the sword stand side by side in it, spirituality and practicality, and this world and the Hereafter, are closely linked. This way of life is founded on reason and evidence. Neither its beliefs nor its laws contain anything that conflicts with human nature or obstructs the attainment of material and moral perfection. Whoever implements Islam in his life knows and experiences its true nature. Therefore, when he abandons Islam after accepting and understanding it, he in fact departs from truth and reason, rejects proof and evidence, and falls outside the bounds of sound intellect and pure human nature. When a person reaches this stage, he descends to the lowest level of degradation and decline. There is no need to preserve such a person’s life or ensure his survival, for his life has no lofty goal or noble purpose.
On the other hand, since Islam is a comprehensive way of life and a complete code of human conduct, it necessarily requires a security structure and protective barrier. For every law and system to endure, a sound and firm method of maintaining it is essential. In this regard, freeing the system from rebellion arising among its followers is both the most necessary and the strongest measure. Rebellion threatens its existence and signals its downfall. Abandoning Islam after accepting and following it is undoubtedly an act of rebellion against it. The punishment for rebellion has always been the same punishment on which man-made laws also agree. Whether in a capitalist or communist state, when a person rebels against it, the punishment for his greatest treachery is nothing other than death. Thus, when Islam prescribes the death penalty for apostates, it acts rationally toward itself while remaining consistent with other ideologies.
The Necessity of Trying to Lead an Apostate to Repentance
In most cases, evil suggestions arising from various doubts and misgivings create an obstacle to faith and ultimately prompt a person to abandon Islam. An apostate should therefore be given some opportunity to free himself from these doubts, so that faith may be revived in his heart, belief and conviction may return, and his doubts may disappear. For this reason, rational proofs must be presented to him. It is therefore obligatory to try to bring the apostate to repentance and return him to faith. Even if he apostatizes repeatedly, this effort must be made each time. He should be granted some respite so that he has time for self-examination, his inner misgivings and misunderstandings may dissipate, and he may reassess his thinking. If his doubts are dispelled, he returns from his error, declares the testimony of faith, returns to Islam, and abandons whatever religion opposed to Islam he had adopted, his repentance will be accepted; otherwise, the punishment will be carried out against him. Some scholars have specified three days. Others have refrained from specifying a period, saying that he must continue to be advised and engaged in discussion. When it becomes certain that there is no hope of his returning to Islam, the punishment will be carried out. (This is the view of most scholars. Hasan, Tawus, and the Zahiri school, however, hold that he must be killed immediately, based on the hadith narrated by Mu‘adh. Ibn Abbas held that if he was born Muslim, he should not be asked to repent; otherwise, he should.) Those who advocate granting three days cite as evidence that a man came from Syria to ‘Umar (may Allah be pleased with him). ‘Umar asked, “Have you brought news from a distant region?” He replied, “Yes. A Muslim has become a disbeliever.” ‘Umar asked, “What did you do with him?” He replied, “We went to him and killed him.” He said, “Why did you not detain him in a room for three days, feed him one loaf of bread each day, and try to bring him to repentance? Perhaps he would have repented and returned to Allah’s ruling. O Allah, I was not present, I gave no order, and when I learned of it, I did not approve it. O Allah, I seek Your absolution from responsibility for this man’s killing.” (Narrated by al-Shafi‘i.)
Those who favor the second view cite the following report from Abu Dawud: Mu‘adh went to Yemen after Abu Musa al-Ash‘ari. There he found a man detained with Abu Musa. He asked, “What is this?” Abu Musa replied, “He was initially a Jew. Then he became a Muslim, but later returned to his former religion and became a Jew again.” Mu‘adh said, “I will not sit down until he is killed. This is the judgment of the Messenger of Allah (peace and blessings be upon him).” He repeated this three times. The man was then killed. Before Mu‘adh arrived, Abu Musa had tried for twenty days to bring him to repentance. It is narrated from ‘Abd al-Razzaq that efforts had continued for two months to make him accept Islam. Imam al-Shawkani said that those who favor seeking repentance differed over how many attempts should be made. Some held that one attempt was sufficient; some said three attempts; and others said efforts should continue for three days. Ibn Battal narrated from ‘Ali (may Allah be pleased with him) that he should be urged to repent for one month. Ibrahim al-Nakha‘i held that efforts to bring him to repentance should continue for life.
The Legal Rulings Concerning an Apostate
When a Muslim becomes an apostate and turns away from Islam, his status changes, and the treatment he received as a Muslim also changes. Several rulings of the Shariah apply to him, a summary of which I present below:
Marital Relationship: If a husband or wife becomes an apostate, the relationship with the other spouse is severed. For apostasy by either husband or wife necessarily ends the marital relationship. This separation is equivalent to annulment of the marriage. If the apostate later repents and returns to Islam, a new marriage contract with a newly stipulated mahr must be concluded if he or she wishes to resume married life. (According to the Hanafi school, the husband’s apostasy is equivalent to a first irrevocable divorce.) It is not lawful for him to take another wife while a wife who follows the religion to which he converted remains present, because he is a criminal liable to execution.
Inheritance: If one of an apostate’s Muslim relatives dies, he does not inherit from that person, because an apostate is a non-Muslim. Thus, he does not inherit from his Muslim relative. If he dies or is killed without returning to Islam, his property is transferred to his Muslim heirs, because he is considered dead from the moment he becomes an apostate.
Once, an old man was brought before ‘Ali (may Allah be pleased with him). He had been a Christian, then accepted Islam, and later abandoned Islam again. ‘Ali said to him, “Perhaps you apostatized in the hope of receiving an inheritance. Will you return to Islam after obtaining it?” The old man replied, “No.”
‘Ali then said, “Perhaps you wanted to marry a woman, but her guardians did not agree. Now you want to marry her. Will you then accept Islam?” The old man replied, “No.”
‘Ali then said, “In that case, I invite you to return to Islam.” He replied, “No, not until I meet Jesus the Messiah.”
‘Ali then ordered that he be killed. He was killed, and his abandoned property was given to his Muslim children.
Ibn Hazm said that a similar view was also narrated from Ibn Mas‘ud. The views of Layth ibn Sa‘d, Ishaq ibn Rahwayh, Abu Yusuf, Muhammad, and Ahmad are likewise the same.
An Apostate Cannot Be Anyone’s Guardian: It is not valid for an apostate to act as anyone’s guardian. He cannot even serve as guardian in the marriage of his own minor children. If he concludes a marriage contract for them, it is considered invalid, because his guardianship ceases when he becomes an apostate.
An Apostate’s Property: Apostasy does not terminate his ownership of his property. Like an original disbeliever, he retains ownership of his property and may use, enjoy, and dispose of it as he wishes; his authority over it remains effective. His liability to execution does not deprive him of the right to possess and enjoy his property, because the Shariah has prescribed no hadd or punishment for an apostate other than execution. Nor does being subject to stoning or retaliation deprive a person of ownership or possession of property.
If an Apostate Takes Refuge in a Non-Muslim Enemy State: Even if an apostate goes to and takes refuge in a non-Muslim enemy state, his ownership of his property remains intact, and his property will be entrusted to the care of a trustworthy person.
The Punishment of a Zindiq:
Abu Hatim al-Mizistani said that zindiq is an Arabized hybrid word derived from the original Persian expression “zindah karo,” meaning the eternity of time. Tha‘lab said that the word zindiq does not exist in the original Arabic language. Zindaki means extremely clever. Synonyms for atheist are mulhid and dahri. Dahri means an advocate of dahr, that is, the eternity of time. Al-Jawhari said that zindiq is a foreign word that was Arabized. Hafiz Ibn Hajar said that the book al-Milal wa al-Nihal states that the fundamental doctrine of zindiqism is first the following of Daisan and later of Mani and Mazdak. (Their basic doctrine is that light and darkness are two primordial entities. When the two united, the entire universe emerged from them. Those of evil nature were created from darkness, while those of good nature were created from light. To separate light from its mixture with darkness, it is necessary to overcome the passions. Bahram, founder of the Persian dynasty, deceived Mani by summoning him and claiming that he had accepted his teachings. He then killed Mani and his disciples. Those few who survived among them followed the aforementioned Mazdak. Then Islam arose. The believers in the aforementioned doctrine of light and darkness were called zindiqs. One group of these zindiqs identified themselves as Muslims out of fear of being killed by Muslims. This is the basic doctrine of the zindiqs. A group of Shafi‘i scholars calls everyone who professes Islam openly but secretly holds disbelieving beliefs a zindiq or atheist.)
Imam al-Nawawi said that a person who identifies himself as a follower of another religion is called a zindiq. The book al-Musawwa states: Whoever opposes the true religion, neither acknowledges it nor believes in it secretly or openly, is a disbeliever. Whoever professes Islam with his tongue but denies it inwardly is a hypocrite. Whoever professes Islam openly and inwardly but interprets some matters that are integral to Islam in a manner contrary to the interpretation of the Companions, the Followers, and the entire ummah is a zindiq or atheist. For example, he acknowledges that the Qur’an is true and that the Qur’an’s discussion of Paradise and Hell is true, but says that Paradise means the pleasure and satisfaction attained through praiseworthy qualities, while Hell means the condemnation and reproach resulting from blameworthy traits, and that there is no actual Paradise or Hell beyond this. Such people are zindiqs or atheists. When the Messenger of Allah (peace and blessings be upon him) said, “Allah has forbidden me from them,” he was referring to hypocrites, not zindiqs or atheists. Just as the Shariah prescribed execution as the punishment for apostasy, so that it would serve as a warning to apostates and preserve its sanctioned creed, it also prescribed the death penalty for zindiqism, so that it would warn against atheism and prevent unsound and fabricated interpretations of Islam. Interpretations of Islam may be of two kinds: (1) an interpretation that does not conflict with the clear statements of the Qur’an and Sunnah or the consensus of Muslims; and (2) an interpretation that contradicts the clear statements of the Qur’an and hadith and the consensus of Muslims. The latter is the doctrine of those who take on the form of zindiqism. Whoever denies such doctrines as the intercession of the Messenger of Allah (peace and blessings be upon him), beholding Allah on the Day of Resurrection, the punishment of the grave, the questioning by Munkar and Nakir, reckoning, and crossing the bridge over Hell is undoubtedly a zindiq and atheist—whether he says, “I do not believe the narrators of these hadiths,” or says that he believes them but that the hadiths have a special interpretation, and then presents a fabricated interpretation that no one had ever heard before. Likewise, whoever says that Abu Bakr and ‘Umar (may Allah be pleased with them) are not inhabitants of Paradise, despite the numerous reliable chains of transmission of the hadiths conveying the glad tidings that they would enter Paradise—so numerous that their falsity is impossible—or says that it is true that the Messenger of Allah (peace and blessings be upon him) was the last Prophet, but that this means no one after him may be called a prophet, while claiming that in the essential sense of prophethood—being sent by Allah to humanity, whose obedience becomes obligatory for all, and being protected from sin and error—there are many imams, then those who hold such views and beliefs are also zindiqs, atheists, and disbelievers. The Hanafis, Shafi‘is, and most later scholars agree that they should be killed.
Is a Sorcerer Liable to Execution?
What Scholars Agree Upon Regarding Sorcery: Sorcery has an effective influence. Sorcery is forbidden, and whoever believes sorcery to be lawful is a disbeliever. However, scholars differ over whether sorcery is something real or merely imaginary, and whether practicing sorcery is disbelief. Based on this disagreement, they also differ over whether a sorcerer is a disbeliever.
Abu Hanifa and Malik said that merely learning sorcery makes a sorcerer liable to execution; if he practices it, then he is certainly liable to execution. It is not necessary to invite him to repent. According to the Shafi‘i and Zahiri schools, if the words and actions through which he practices sorcery constitute words and acts of disbelief, then the sorcerer is an apostate, and if he does not repent, all the rulings applicable to an apostate apply to him. But if his words and actions do not indicate disbelief, he is not to be killed, because he is not a disbeliever; he is merely sinful.
It is well known that sorcery is a major sin. A sorcerer is not to be killed for practicing sorcery. He is to be killed only when he believes sorcery to be lawful, because he becomes liable to execution as an apostate for declaring something forbidden to be lawful, not because of sorcery itself. Sorcery is one of the seven destructive major sins that the Messenger of Allah (peace and blessings be upon him) identified.
[Note: It should be remembered that sorcery is something performed through special forms of incantation and magic for the purpose of harming people or exerting influence over someone. Sorcery and magic tricks are not the same thing. A magic trick is a technique. Sorcery is forbidden, but magic tricks are not. —Editor]
After reviewing the proofs of those who consider a sorcerer a disbeliever and liable to execution, Ibn Hazm said: The correct view is that sorcery is not disbelief. Since it is not disbelief, it cannot be lawful to kill a sorcerer, because the Messenger of Allah (peace and blessings be upon him) declared it unlawful to kill anyone except one who becomes a disbeliever after being Muslim, commits adultery after marriage, or kills an innocent person. In light of the foregoing discussion, a sorcerer is neither a disbeliever nor a murderer, nor is he guilty of adultery after marriage; and nowhere in the Qur’an or hadith is there an order to kill him that would allow this to be added to those three causes, as the case of a rebel is added. It is therefore unquestionably established that killing a sorcerer is unlawful. The Shi‘a, however, consider a sorcerer an apostate liable to execution.
The Punishment of Astrologers and Soothsayers: A person who keeps a spy among the jinn who informs him of various matters unknown to ordinary people is called an astrologer or kahin. A person who reports various matters on the basis of conjecture and claims to know unseen or hidden information is called a soothsayer. According to Imam Abu Hanifa, both the soothsayer and the astrologer are liable to execution, because ‘Umar (may Allah be pleased with him) said, “Kill every sorcerer and astrologer.” According to another report, ‘Umar said, “Do not kill these two if they repent.” According to the early Hanafi jurists, if a soothsayer or astrologer believes that the devils can do whatever they wish for him, then he is a disbeliever. If he believes that these are merely fantasies with no real existence, then he is not a disbeliever.
6. The Punishment for Banditry, Highway Robbery, Terrorism, and Rebellion
Definition
Rebellion, terrorism, banditry, and highway robbery refer to the activities of an armed group that commits crimes in society such as spreading disorder, bloodshed, looting wealth, robbery, violating people’s honor, and destroying crops and livestock.
Through these acts they challenge religion, morality, administration, and law and order. Whether such a criminal group consists of Muslims, non-Muslim citizens, protected communities, or any group of non-Muslims at war, as long as they remain within a Muslim-ruled country and their aggressive activities continue to harm innocent citizens of all classes, there is no distinction among them and they are all equal before the law. Whether such unlawful and treasonous activity is carried out by a group or by an individual in defiance of the country’s law, order, and administration, it is equally regarded as rebellious and criminal activity. If an individual possesses such great power and influence that he gains control over people’s lives, property, and honor, he will be called both a bandit and a traitor. Various terrorist and guerrilla groups also fall under this category of banditry and rebellion, such as groups of assassins, child kidnappers, thieves and robbers who attack residential areas, bank-robbery gangs, groups that kidnap virgin and underage girls for prostitution, groups that secretly assassinate rulers and politicians to create unrest, disrupt peace and order, and spread anarchy, and groups that destroy crops and kill livestock, and so on.
Such terrorist groups that destroy peace and order are regarded on the one hand as traitors to the state and, on the other, as enemies of Islam and rebels against Islamic teachings. For Islam came precisely to ensure peace and security in society, which it does by safeguarding the rights of every member of society.
Thus, a group’s rebellion against the state and society is in reality equivalent to waging war against the state. It is also called highway robbery, because people are forced to stop even going out on the roads due to the criminal activities of such terrorist and antisocial groups. They fear that at any moment these groups may shed the blood of peaceful, innocent people, rob and loot their belongings, violate their honor, or commit many other crimes that an unarmed, innocent traveler cannot prevent. Some jurists call this banditry, highway robbery, brigandage, sabotage, or, in modern terminology, terrorism and robbery. (The difference between theft and banditry is that weapons are generally not used in theft, and financial harm is usually inflicted only on the person or household concerned; banditry harms several people or households at once, involves weapons, and may even lead to bloodshed.)
Banditry, Highway Robbery, Terrorism, and Rebellion as Major Crimes
In fact, banditry, highway robbery, terrorism, and rebellion are regarded as major crimes. For this reason, the Holy Qur’an describes those who engage in these crimes as “waging war against Allah and His Messenger” and “striving to spread corruption in the land.” Along with severe punishment in the Hereafter, it prescribes for them in this world a terrible punishment unlike that prescribed for any other crime. Allah says:
إِنَّمَا مَزَوا الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَنْ يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تَقَطَّعَ أَيْدِيهِمْ وَأَرْجُلُهُمْ مِنْ خِلافٍ أَوْ يُنْفَوْا مِنَ الْأَرْضِ مَا ذَلِكَ لَهُمْ خرى في الدُّنْيَا وَلَهُمْ فِي الآخِرَةِ عَذَابٌ عَظِيره
Meaning: Those who wage war against Allah and His Messenger and spread corruption and destruction in the land—their punishment is that they be killed, or crucified, or that their hands and feet be cut off on opposite sides, or that they be exiled from the land. That is their disgrace in this world, and in the Hereafter they will have a great punishment.” (Surah al-Ma’idah, verse 33)
The Messenger of Allah (peace and blessings be upon him) declared that a person involved in such crimes is not entitled to identify himself as a Muslim, saying: “Whoever bears arms against us is not one of us.” That is, whoever unjustly engages in armed conflict against Muslims does not follow our way. Islam’s way is to help and protect Muslims and, when necessary, fight the enemy—not to harm and terrorize Muslims by using weapons.
Abu Hurayrah (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever abandons obedience and separates himself from the community of Muslims will die the death of the Age of Ignorance.” That is, abandoning obedience to the ruler whom the people of a country collectively obey is an act belonging to the Age of Ignorance.
Conditions for the Punishment of Banditry, Terrorism, and Treason: The following conditions must be met for punishment for this crime:
1. The person must be an adult and sane. 2. The criminal must possess a weapon. 3. The crime must take place away from settled society. 4. The criminal’s attacks must be carried out openly. However, not all specialists agree on these conditions. A detailed discussion follows:
1. Being an Adult and Sane: These two conditions are essential for the obligation to comply with Islamic law and any other law. Therefore, their presence is also required for carrying out the Shariah-prescribed punishment or hadd for this crime.
In fact, a minor boy and an insane person cannot be considered to have engaged in warfare, regardless of how many people may have participated in such a crime. Under the rulings of the Shariah, the responsibility and obligation to comply with its law have not yet been imposed upon them. There is no disagreement among jurists on this point. The disagreement concerns whether, when minors and insane persons participate in these crimes, the other adults and sane persons involved in the crime should likewise be exempted from the Shariah punishment along with them.
According to the Hanafis, they too will be exempted. For when some people involved in the same offense are exempted from punishment, all of them are entitled to exemption, since they are collectively responsible. However, only the punishment for the offenses of banditry, highway robbery, terrorism, and anarchy will be waived. The punishments for other offenses committed along with these must be imposed according to the law. If murder has been committed, the matter will fall under the authority of the victim’s guardian, who may either pardon the offender or demand retaliation—killing in return for killing. The same ruling applies to other offenses. According to the Malikis and Zahiris, even if the punishment of a minor or an insane person is waived, the punishment of the others will not be waived. For this punishment is a right of Allah, from which no one can be spared. Freedom and being male are not conditions for the punishment of this offense. The fact that the offender is a woman or a slave has no effect on the offense of banditry, for women and slaves can equally participate in carrying weapons and rebellious activities. Therefore, they too will be punished equally. (According to one narration, Abu Hanifah held that the offender’s being male is a condition; according to another narration, it is not.)
Condition of carrying weapons: Possession of weapons is a condition for terrorists and rebels to be liable to punishment, because they conduct their terrorist and destructive activities by relying on the power of weapons. If they do not possess weapons, they will not be considered terrorists, since without weapons they cannot compel or prevent anyone from doing anything. The jurists differed over whether those who use sticks and stones are to be considered terrorists. According to al-Shafi‘i, Malik, Ahmad, Abu Thawr, Abu Yusuf, and Ibn Hazm, they too are considered terrorists and rebels, since the type and quantity of weapons are not the issue; what matters is whether they commit banditry, plunder, robbery, or highway robbery. According to Abu Hanifah, they are not terrorists.
Condition that it occur outside populated areas: According to some jurists, such terrorist and violent activities must take place in the wilderness. If such crimes are committed in populated areas, the perpetrators will not be considered terrorists or bandits. Since the punishment for this type of crime has been prescribed as the punishment for banditry, whereas banditry occurs in uninhabited areas, and when such crimes occur in populated areas people often rush to aid the victims, thereby restraining the criminals’ arrogance and power, they will instead be considered usurpers. No hadd punishment is prescribed in the Shariah for a usurper. This is the view of Abu Hanifah, al-Thawri, Ishaq, and most Shi‘i jurists. Al-Khiraqi among the Hanbalis also held this view. Another group of jurists held that the Shariah ruling concerning them is the same in populated and unpopulated areas. The verse mentions only terrorism or banditry and does not specify where it occurs. Thus, all bandits and terrorists are included. Moreover, when banditry and terrorism occur in populated areas, they cause greater harm. Therefore, terrorists in populated areas are even more deserving of punishment. Criminal groups organized to commit murder, plunder, and robbery are also included among them. This is the view of al-Shafi‘i, Ahmad, Abu Thawr, al-Awza‘i, al-Layth, Malik, and the Zahiris.
The actual reason for this disagreement is the differing nature of populated areas. The one who stipulated that the crime occur in a populated area considered the prevailing conditions there most of the time, or issued his opinion in light of the fact that he had not witnessed such incidents in his city or settlement during his era. The one who did not impose this condition had witnessed the opposite situation in his time and locality. That is why Imam al-Shafi‘i said that when the ruler is weak and violent incidents occur in a city or populated area, they are considered terrorism and banditry; otherwise, he regards them as mere usurpation.
Condition that it occur openly: For banditry and terrorism to be punishable, the seizure of property must occur openly. If someone takes something secretly, he is deemed a thief (the punishment for theft differs from that for banditry). If he plunders property and flees, he is a plunderer or looter. None of his limbs will be amputated. Similarly, when one or two people are at the rear of a caravan and looters snatch something from them, no limb of these robbers will be amputated, because they do not face any substantial resistance. But if they attack a small number of people and overpower them, the attackers will be deemed bandits and brigands. This is the view of the Hanafis, Shafi‘is, and Hanbalis. The Malikis and Zahiris disagree. The Maliki imam Ibn al-‘Arabi said: “Our view is that banditry and terrorism occur everywhere, in populated and unpopulated areas alike, although one may be more horrific than the other. Whatever form it takes, it is called banditry or terrorism, and the characteristics of banditry and terrorism are present in it. If someone goes out in a populated area carrying a stick, he will be killed with a sword and seized by a harsher method, not an easier one. This is because it is a case of concealed plunder, and a concealed crime is worse than an open crime. Thus, open murder falls under retaliation and is subject to pardon, whereas secret murder is not pardonable. This kind of bandit is worthy of death.”
He further said: “While I was serving as a judge, a complaint was brought to me concerning a group that was involved collectively in banditry and terrorism. They abducted a woman and raped her by force. When the band of bandits was captured, I asked my fellow muftis and judges whether they were guilty of banditry. They said, ‘They are not bandits, because banditry concerns the plundering of material possessions, not the violation of a woman’s honor.’ I said, ‘What a calamity! Do you not know that violating a woman’s honor is more heinous than plundering property? A person may tolerate losing his property and seeing it plundered before his eyes, but he can never tolerate the honor of his wife being violated. If there were a punishment greater than the punishment Allah has prescribed for banditry, it would have been prescribed for those who violate women’s honor.’ In reality, one should avoid the company of ignorant judges and muftis.”
Al-Qurtubi said that secretly or deceitfully killing someone with the aim of plundering his property is an offense equivalent to banditry, whether or not the killer openly displays his weapon. For example, someone may become a guest in another person’s home or a travel companion, and then cunningly kill him by giving him poison. Such a person will be executed as punishment for banditry, not by way of retaliation.
Ibn Adam said: Bandits and terrorists are hardened criminals. They establish a reign of terror among people and spread anarchy, whether they use weapons or not; whether at night or during the day; in a settlement or in a desolate wilderness; in a royal palace or a temple; alone or with their group; in an empty desert or a village; in a house or a fortified stronghold; in a large city or a small town. Therefore, whoever attacks an occupant and spreads terror through murder, rape, plundering property, violating honor, and the like is in rebellion against society, the state, and the community, whether he is a bandit or not.”
This proves that Ibn Adam’s view concerning banditry, terrorism, and rebellion is comprehensive and leaves nothing out. The Maliki school also adopts this view. Wherever it occurs, any aggressor who causes disorder in a settlement is a bandit, terrorist, or rebel, and the punishment for banditry is the appropriate punishment for him.
Punishment for banditry, terrorism, and anarchy
Concerning the punishment for banditry, terrorism, and anarchy, Allah revealed:
إِنَّمَا جَزَاءُ الَّذِينَ يُحَارِبُونَ اللَّهَ وَرَسُولَهُ وَيَسْعَوْنَ فِي الْأَرْضِ فَسَادًا أَنْ يُقَتَّلُوا أَوْ يُصَلَّبُوا أَوْ تُقْطَعَ أَيْدِيهِمْ وَأَرْجُلُهُمْ مِنْ خِلَافٍ أَوْ يُنْفَوْا مِنَ الْأَرْضِ ذَلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ إِلَّا الَّذِينَ تَابُوا مِنْ قَبْلِ أَنْ تَقْدِرُوا عَلَيْهِمْ فَاعْلَمُوا أَنَّ اللَّهَ غَفُورٌ رَّحِيمٌ
Meaning: “The punishment of those who wage war against Allah and His Messenger and strive to spread corruption in the land is that they be killed, or crucified, or that their hands and feet be amputated on opposite sides, or that they be exiled from the land. That is their disgrace in this world, and in the Hereafter they will have a great punishment.” (On opposite sides means the right hand and left foot, or the left hand and right foot.) “Except for those who repent before you gain power over them. So know that Allah is Forgiving, Merciful.” (Al-Ma’idah, verses 33–34)
This verse was not revealed concerning the disbelievers; rather, it was revealed concerning those among the Muslims who engage in banditry and in creating anarchy and terrorism. When disbelievers are captured by Muslims and become Muslim, their lives and property become secure by virtue of their accepting Islam. Even if, before accepting Islam, they had committed an offense that would be punishable in this world, they would still be exempted from that punishment. Allah says in verse 38 of Surah al-Anfal:
قُلْ لِلَّذِينَ كَفَرُوا إِنْ يَنْتَهُوا يُغْفَرُ لَهُمْ مَا قَدْ سَلَفَ
“Tell those who disbelieve: If they desist, what has preceded will be forgiven.” This proves that verses 33 and 34 of Surah al-Ma’idah were revealed concerning Muslims. Waging war against Allah and His Messenger means waging war and committing terrorism against Muslims by spreading disorder, anarchy, terrorism, and fear, and raising the banner of rebellion against Islam by violating and disobeying its principles and instructions. Thus, by describing fighting against Muslims as fighting against Allah and His Messenger, it is meant that fighting against Muslims is equivalent to fighting against Allah and His Messenger. As Allah said:يُخَادِعُونَ اللَّهَ وَالَّذِينَ آمَنُوا“They seek to deceive Allah and the believers.” (Al-Baqarah, verse 9)
Here, deceiving Allah and the believers is not meant literally but metaphorically; likewise, in Surah al-Ma’idah, their waging war against Allah and His Messenger is metaphorical, not literal. Al-Qurtubi said: “The statement that they wage war against Allah and His Messenger is metaphorical, because Allah cannot be fought or defeated. It is obligatory to believe that He possesses all attributes in their perfection and highest degree, and that He has neither equal nor opponent. Its meaning is that they fight against those beloved to Allah and His Messenger. By this, He indicates how great a sin it is to harm Muslims. Similarly, in verse 245 of Surah al-Baqarah, by saying, ‘Who is it that will lend Allah a good loan,’ He meant lending to His servants and expressed it in this manner to encourage compassion toward them. In a sound hadith qudsi, Allah’s statement, ‘I placed food before you, but you did not feed Me,’ likewise conveys the importance of feeding Allah’s servants.”مَنْ الَّذِي يُقْرِضُ اللَّهَ قَرْضًا حَسَنَا“Those who will lend Allah a good loan” also means lending to His servants, and He expressed it in this manner to inspire compassion toward them. In a sound hadith qudsi, Allah’s statement, “I placed food before you, but you did not feed Me,” likewise conveys the importance of feeding Allah’s servants.
Regarding the reason why these two verses of Surah al-Ma’idah were revealed, most scholars say: A group came to Madinah and accepted Islam. Because the climate of Madinah did not suit their bodies, they developed a severe skin disease. In view of their condition, the Messenger of Allah (peace and blessings be upon him) ordered them to go to where the zakat camels were kept and drink the milk of the milch camels. They followed his order. When they recovered, they killed the camel herder, gouged out his eyes, apostatized from Islam, and drove away the camels.
Immediately after this incident, the Messenger of Allah (peace and blessings be upon him) sent people to follow their tracks and bring them back. When they were captured, by the order of the Messenger of Allah (peace and blessings be upon him), their hands and feet were amputated, their eyes were gouged out, and they were left outside Madinah in a place called Harrah, covered with black stones. In that condition, they writhed in hunger and thirst until they died. They were guilty of banditry, murder, apostasy after accepting Islam, and waging war against Allah and His Messenger. It was concerning them that Allah revealed these two verses of Surah al-Ma’idah.
The punishment prescribed in the verse
In this verse, Allah commands the application of any one of four punishments for waging war against Allah and His Messenger and creating anarchy: (1) execution; (2) crucifixion; (3) amputation of the hands and feet on opposite sides; and (4) exile from the land. These punishments are mentioned using the conjunction “or,” which means that the ruler has the discretion to apply any one of them. He will apply whichever he considers more beneficial, regardless of the degree of the offense. However, according to most scholars, “or” here does not indicate freedom of choice but variation. That is, the type of punishment will vary according to the seriousness of the offense; it is not that whichever punishment one wishes may be applied.
The argument of those who hold that the word “or” indicates freedom of choice
The first group says that this is what the literal meaning of the verse indicates, and its linguistic structure also supports it. Moreover, nothing to the contrary is known from the hadith. The meaning of the verse is that whoever wages war against Allah and His Messenger and causes corruption in the land is to be punished by execution, crucifixion, amputation of the hands and feet on opposite sides, or exile. The ruler will determine which of these applies to each person, and one of these punishments will be carried out, whether the offender committed all the stated offenses or only one of them. The verse does not give the ruler the authority to impose more than one punishment on the offender, nor to impose none at all. Al-Qurtubi said: “The verse clearly establishes that the ruler has discretion in carrying out any one of the four stated punishments.” This is the view of Abu Thawr, Malik, Ibn ‘Abbas, Sa‘id ibn al-Musayyab, ‘Umar ibn ‘Abd al-‘Aziz, Mujahid, al-Dahhak, and al-Nakha‘i. Ibn ‘Abbas said that wherever the word “or” occurs in the Qur’an, the person concerned has a choice. This is clearly apparent from the verse.
Ibn Kathir said that “or” clearly expresses the freedom to choose any one of several alternatives. For example, regarding the compensation required when a person in ihram kills game, Allah says in verse 95 of Surah al-Ma’idah:
فَجَزَاءُ مِثْلُ مَا قَتَلَ مِنَ النَّعَمِ يَحْكُمُ بِهِ ذَوَا عَدْلٍ مِنْكُم هَدْيًا بَالِغَ الْكَعْبَةِ أَوْ كَفَّارَةٌ طَعَامُ مَسَاكِينَ أَوْ عَدْلُ ذَلِكَ صِيَامًا
…. “If any of you in ihram kills game, he must offer an equivalent compensation from livestock for the animal he killed, to be adjudicated by two just men among you, and the animal must reach the Ka‘bah as an offering. Or he must offer expiation by feeding a number of needy people, or by fasting an equivalent number of days.”
Regarding fidyah, Allah also says:
فَمَنْ كَانَ مِنْكُم مَّرِيضًا أَوْ بِهِ أَذًى مِنْ رَأسِهِ فَفِدْيَةٌ مِّنْ صِيَامٍ أَوْ صَدَقَةٍ أَوْ نُسُكٍ
“If any of you is ill or has an ailment in his head, he must offer fidyah by fasting, giving charity, or offering a sacrifice.”
Similarly, regarding the expiation for an oath, Allah says:
فَكَفَّارَتُهُ إِطْعَامُ عَشَرَةِ مَسَاكِينَ مِنْ أَوْسَطِ مَا تُطْعِمُونَ أَهْلِيكُمْ أَوْ كِسْوَتُهُمْ أَوْ تَحْرِيرُ رَقَبَةٍ
“Feeding ten needy people with the average food that you normally give your families, or clothing them, or freeing a male or female slave.”
In all these cases, freedom of choice has been granted. Therefore, a similar freedom of choice applies in this verse as well.
The argument of those who say that the word ‘or’ indicates variation rather than freedom of choice:
The second group cites as evidence in support of their position a statement narrated by Ibn ‘Abbas, the foremost linguist and Qur’an scholar among the Companions, which Imam al-Shafi‘i quoted in his Musnad. It is as follows:
“When the criminals both kill and seize property, they are to be crucified. When they only kill and do not seize property, they are to be killed but not crucified. When they only seize property and do not kill, their hands and feet are to be cut off from opposite sides. When they merely terrorize travelers and spread fear, without seizing property or killing anyone, they are to be exiled.”
Ibn Kathir said that if the hadith narrated in Ibn Jarir’s Tafsir is authentic, it confirms the correctness of this statement attributed to Ibn ‘Abbas.
The hadith is as follows: “Yazid ibn Habib narrated that Malik ibn Marwan wrote to Anas ibn Malik asking him about this verse. Anas then wrote back to him that this verse was revealed concerning a group from the Bajilah tribe who had abandoned Islam and become apostates, killed a shepherd and driven away a herd of camels, spread fear and terrorism, and raped women. When the Messenger of Allah (peace and blessings be upon him) asked Jibril (peace be upon him) about them and about the rebels, Jibril said: Whoever steals property and spreads terror, his hand is to be cut off for the theft and his foot for spreading terror. Whoever kills is to be killed. And whoever kills, spreads terror, and rapes and abducts women is to be crucified.”
This group said that the stronger opinion is that the verse classifies the punishments; it does not grant freedom of choice. Allah has prescribed several levels of punishment for the crime of causing corruption and creating anarchy, because creating anarchy itself has several degrees, such as killing, seizing property, violating honor, and destroying crops and livestock. Some bandits commit one or more of these crimes. It cannot reasonably be held that the ruler may impose whichever punishment he wishes on any of these criminals. Rather, it is his duty to give each of them the appropriate punishment according to the degree of his anarchy and crime. That is the proper justice. Allah says in verse 40 of Surah al-Shura: “The recompense of an evil is an evil like it.” This is the view of the Shafi‘i school. According to the soundest report, it is also the view of Imam Ahmad. Imam Abu Hanifah likewise held this view, although he provided some further details. In his work Bada’i, al-Kasani analyzes the position of those who understand ‘or’ as granting freedom of choice and says: “In different rulings, the apparent freedom granted by the conjunction ‘or’ will be understood in its apparent sense only when the cause making all of them obligatory is the same, as in the expiation for an oath and the expiation for killing game. But when the cause differs, it will express a separate meaning in each ruling according to the details of that ruling. For example, it is stated in verse 86 of Surah al-Kahf:
قُلْنَا يَا ذَا الْقَرْنَيْنِ إِمَّا أَنْ تُعَذِّبَ وَإِمَّا أَنْ تَتَّخِذَ فِيْهِمْ حُسْنًا
“I said: O Dhul-Qarnayn, either punish them or treat them with kindness.”
Here, ‘either’ and ‘or’ do not indicate freedom to choose either of the two mentioned options; rather, they provide a separate explanation for each. This is because the causes of the two rulings are different. That is, ‘Either punish the one who commits wrongdoing, or treat kindly the one who believes and does righteous deeds.’
This is because the following verse mentions Dhul-Qarnayn’s reply:
قَالَ أَمَّا مَنْ ظَلَمَ فَسَوْفَ نُعَذِّبُهُ ثُمَّ يُرَدُّ إِلَى رَبِّهِ فَيُعَذِّبُهُ عَذَابًا نُكْرًا وَأَمَّا مَنْ آمَنَ وَعَمِلَ صَالِحًا فَلَهُ جَزَاءُ الْحُسْنَى
“He said: As for whoever does wrong, we shall punish him; then he will be returned to his Lord, and He will punish him with a terrible punishment. But as for whoever believes and does righteous deeds, he will have the finest reward.”
Banditry has different categories. It may consist solely of seizing property, solely of killing, or a combination of both. At times, it may be limited to merely causing fear.
Therefore, since the causes of the rulings differ, this cannot be understood as granting freedom of choice; rather, each ruling must be understood as referring to a separate set of details. Or it may be understood in either of these two ways, but since it is not specified, it cannot be presented as evidence. When the relevant verse cannot be understood as visibly granting freedom of choice in the case of ordinary bandits or terrorists, it will be assumed that the details of the various categories of banditry are implicit in each ruling. In other words, Allah’s statement in the verse will be understood as follows: “The only punishment for those who wage war against Allah and His Messenger and spread corruption in the land is that, if they have killed someone, they are to be killed; if they have both seized property and killed, they are to be crucified; if they have only seized property, their hands and feet are to be cut off from opposite sides; and if they have only spread fear and terror, they are to be expelled from the land.” When Abu Burda al-Aslami committed banditry against a group of people who had come to Madinah to embrace Islam, Jibril instructed the Messenger of Allah (peace and blessings be upon him) to deal with them in this manner. The Messenger of Allah (peace and blessings be upon him) said: “Whoever kills is to be killed; whoever seizes property but does not kill is to have his hands and feet cut off from opposite sides; and whoever both kills and seizes property is to be crucified. Whoever embraces Islam will have the sin of his former idolatry forgiven.”
Explanation of the variations in punishment according to the categories of crime
We have stated that the view of most jurists is that the punishment will differ according to the category of crime. The differences in punishment are as follows:
1. The crime of creating anarchy is limited to terrorizing travelers and taking away their belongings, with nothing more occurring. Such people will be exiled. Alternatively, they may be exiled from the city where they created anarchy to another city in a Muslim country. If they are unbelievers, however, they may be deported to a non-Muslim country. The rationale is that they will thereby suffer the consequences of their actions and experience the hardship of exile, while the area in which they spread anarchy will be protected from their crimes and harm, and its inhabitants will be freed from the harmful effects of their misconduct. It is narrated from Imam Malik that exile means expelling them from their own city to another city and imprisoning them there until their repentance becomes evident. This is also the view of Ibn Jarir. The Hanafis, on the other hand, hold that exile means sending them to prison, where they will remain until it becomes clear that they have reformed. Since a prison is an extremely confined place, a prisoner is like an exile: it is as though he has been exiled from his locality to the prison.
2. If the crime of creating anarchy and terror consists solely of seizing property, without murder, its punishment is amputation of the right hand and left foot. This is because something additional to theft has been added to the crime: the armed display of fear or attack. After parts of the hand and foot are amputated, the bleeding from the remaining portions must immediately be stopped so that the offender does not die from blood loss. The reason for amputating opposite limbs is that, if one hand and one foot remain, he will still be able to carry on his activities. Thus, if after losing one hand and one foot he commits robbery again, his remaining left hand and right foot will be amputated. According to most jurists, it is required that the seized property amount to the nisab and have been taken from a secure place. This is because theft and robbery are crimes for which prescribed punishments have been established. Whenever the crime is committed, its punishment must be imposed, whether it was committed by an individual or a group. If the stolen property does not amount to the nisab or was not taken from a secure place, the hands and feet will not be amputated. If there is more than one offender, however, the jurists differ as to whether each person’s share must amount to the nisab. If the property collectively seized by the robbers equals the nisab, everyone’s hands and feet will be amputated even if each person’s individual share does not equal the nisab, as in the case of theft. But according to al-Shafi‘i and the rationalists, hands and feet will not be amputated unless each person’s share amounts to the nisab. It is also a condition that there be no kind of doubt regarding them. The Maliki and Zahiri schools do not support this view. They do not favor stipulating any particular amount for the seized property, nor do they consider it necessary that it have been kept in a secure place. This is because robbery itself is a punishable crime, whether or not the property amounts to the nisab and whether or not it was taken from a secure place. Robbery is a crime distinct from theft, and the punishments for the two are different. Allah specified an amount of property for theft, but He did not do so for robbery. Rather, He mentioned only the punishment of the robber, which means that anyone who commits robbery will be punished.
If one of the offenders is a blood relative of the owner of the stolen property, his hand and foot will not be amputated, while those of the others will be. This is the view of the Hanbalis and al-Shafi‘i. According to the Hanafis, no one’s hand or foot will be amputated, because the relationship has created a doubt. Moreover, the offenders are jointly responsible for one another’s gains and losses. Therefore, when the punishment is waived for the relative, it is also waived for the others. Ibn Qudamah gave precedence to the view of al-Shafi‘i and the Hanbalis. He said that the doubt is connected only to one person; therefore, the punishment will not be waived for the rest. In other words, the cause for waiving it is confined to one person, so the punishment will be waived only for that person, since the doubt does not extend from him to the others.
3. If the crime of robbery is confined solely to murder, with no seizure of property accompanying it, the offender is liable to the death penalty. The ruler shall kill him whenever he is able to apprehend him. All the robbers will be killed, even if only one of them was the killer. Their helpers will also be killed, because they too participated in destructive activity and anarchy. Even if the victim’s guardian pardons the offender or agrees to blood money, this will not be accepted. The reason is that the victim’s guardian’s pardon or agreement to blood money is valid in a case of qisas—that is, a murder case—but not in robbery.
4. If, during the robbery, the offenders commit both murder and plunder, they will both be killed and crucified—that is, they will be raised onto a cross alive so that they die. The offender will be tied standing against a piece of wood, a pillar, or something similar, with both hands hanging, and then killed. According to some jurists, he will first be killed and then crucified as a lesson to others. Some say that the offender should not be left on the cross for more than three days.
Everything stated thus far consists of the imams’ ijtihad, undertaken in connection with interpreting the verse. In reality, each imam has a sound argument. The reasoning of those who believe that the ruler should be given the authority to choose any one of the prescribed punishments is that this is indicated by the conjunction “or.” The matter has been left entirely to the ruler’s discretion. He has the authority to impose whichever punishment he considers most likely to restrain the offender and ensure the welfare of the people.
Those who believe that the verse prescribes a separate punishment for each crime argue that justice must be ensured alongside restraining the wicked and protecting the virtuous. Thus, everyone agrees that the essential purpose of the Shariah is to restrain crime and ensure public welfare—in other words, to restrain the wicked and protect the virtuous—and that implementing this purpose is necessary. This ijtihad makes it easier for those responsible at every level to understand the statements of the Qur’an and Hadith and follow the correct path of ijtihad. It also assists students in attaining the truth. Nevertheless, there is no doubt that the people who create anarchy and the robbers engage in many other kinds of destructive activity besides the few destructive acts mentioned by the jurists. In light of the detailed regulations of the Shariah formulated by the jurists from the cited verse, it is possible to formulate appropriate rulings for every new form of destructive activity.
Response to an objection:
Tafsir al-Manar states that Ibn Jarir quoted Mujahid as saying that the word fasad, meaning destructive activity, in this verse refers to fornication, theft, murder, and the destruction of crops and livestock. These four acts are undoubtedly destructive. However, some jurists raised an objection to Mujahid’s statement: the punishments mentioned in the verse for these sinful and destructive acts differ from the prescribed hudud or punishments established for them in the Shariah. The hadd is prescribed for fornication and theft, and qisas and diyah, among other penalties, are prescribed for murder. As for destroying crops and livestock, the amount of the loss will be assessed, and the responsible person will be compelled to pay compensation; in addition, the ruler may impose ta‘zir or another distinct punishment according to his judgment. In that case, what is the reason for prescribing a separate punishment for the same crimes in this verse? The answer is that the special kind of punishment mentioned in this verse applies only to offenders who are disobedient even to the rulers and have no confidence in the Shariah. The aforementioned hudud, on the other hand, are individual punishments for fornicators and thieves who in practice follow the rulings of the Shariah. In the Holy Qur’an, these two categories of offenders are referred to with singular active-participle terms, as Allah says in verse 38 of Surah al-Ma’idah:
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا
“As for the male thief and the female thief, cut off their hands.”
And in verse 2 of Surah al-Nur Allah says:
الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلِّ وَاحِدٍ مِّنْهُمَا مِائَةَ جَلْدَةٍ
“The fornicating woman and the fornicating man: flog each of them with one hundred lashes.”
These offenders do not acknowledge their deeds as despicable acts, nor do they openly commit crime and spread anarchy so that the example of their wrongdoing will spread among others. Moreover, they do not form armed forces and resort to power and violence to protect themselves from the punishments of the Shariah. Therefore, it is not appropriate to describe them as waging war against Allah and His Messenger. Yet the punishment described in this verse is for those who possess the two stated characteristics: disobedience to the law and the Shariah, and openly committing and spreading crime through the use of force. When the jurists use the expression “waging war,” they mean offenders who openly commit destructive crimes by violent means.
What the Ruler and Society Must Do Regarding Robbery and Terrorist Activities
The ruler and society are both responsible for maintaining peace and order, securing individual rights, and protecting the lives, property, and honor of the people. When a group disobeys society and the state, spreads terror and commits robbery, and creates horrifying anarchy and instability in people’s lives, it is the ruler’s duty to fight them, just as the Messenger of Allah ﷺ did with the ‘Urani rebels of the Bajilah tribe and as the caliphs did after him. Muslims at every level must also assist the ruler in curbing and eradicating their power until peace, security, and stability return among the people and every person can devote himself to striving fully for the welfare of himself, his family, and society. If these terrorists retreat, scatter, and lose their power before committing any murder or plunder, there is no need to pursue them further. But if their activities reach the level of murder and highway robbery, an all-out campaign must be undertaken to apprehend them until they are completely subdued, and the punishments for robbery and highway robbery must be imposed on them.
If Terrorists and Robbers Repent Before They Are Apprehended
If those involved in terrorism, anarchy, and highway robbery repent before they are apprehended and the ruler is able to arrest them, Allah Himself will forgive all their past sins and also waive their worldly punishment. Allah says:
ذَلِكَ لَهُمْ خِزْيٌ فِي الدُّنْيَا وَلَهُمْ فِي الْآخِرَةِ عَذَابٌ عَظِيمٌ إِلَّا الَّذِينَ تَابُوا مِنْ قَبْلِ أَنْ تَقْدِرُوا عَلَيْهِمْ فَاعْلَمُوا أَنَّ اللَّهَ غَفُورٌ رَّحِيمٌ
“That is their disgrace in this world, and in the Hereafter they will have a tremendous punishment. Except for those who repent before you apprehend them; know, then, that Allah is Most Forgiving, Most Merciful.”
The reason is that repenting before being apprehended and brought under government control proves that their conscience has awakened and that they have resolved to abandon their inclination to spread anarchy and wage war against Allah and His Messenger and to begin living a pure and peaceful life anew. Therefore, if they previously committed any punishable offense involving a right of Allah, they will receive Allah’s forgiveness. But if they violated people’s rights, that will not be forgiven. In that case, punishment for offenses involving bloodshed will not be administered through the procedure for robbery and terrorism cases, but through the procedure of qisas. The matter will then be left to the wishes of the injured party, not to the ruler’s discretion. If they committed murder, the obligation of killing in retaliation will not be waived; the victim’s guardian and heirs will have the right to demand death in retaliation, or to pardon in exchange for blood money, diyah. If they committed both murder and plunder, the obligation of crucifixion and execution will be waived, while qisas and financial compensation will remain. If they merely plundered property, amputation of the hands and feet will be waived, but any plundered goods still in their possession will be taken from them; if they have spent all or part of them, they must pay their value as compensation. This falls under unlawful usurpation. Therefore, it is not lawful for them to own property acquired in this manner. That property will be returned to its owners and will remain with the ruler until the rightful owner is found. Their repentance will not be valid until the plundered property is returned to its owner. If, in the greater national interest, the ruler considers it appropriate to waive any financial claim against those who created anarchy, the owner must be compensated from the state treasury.
In Bidayat al-Mujtahid, Ibn Rushd summarized the scholars’ views on this matter. He said: There are four opinions regarding which liabilities are discharged through repentance:
1. One view is that only the punishment for robbery and highway robbery is waived. In addition, the offender remains liable for all other rights of Allah and of people. This is the view of Imam Malik.
2. The second view is that repentance waives liability for robbery and highway robbery, fornication, drinking alcohol, and the punishment of amputation for theft. But if the offender violated people’s financial rights or rights involving bloodshed, he is not discharged from that liability. He will be discharged only if the victim’s guardians pardon him. (In our view, this is the most just opinion. We mentioned it earlier.)
3. The third view is that repentance erases all offenses involving the rights of Allah. The offender remains liable only for bloodshed, plunder, and abduction. Whatever remains of the plundered property in its original and intact condition will be recovered.
4. The fourth view is that repentance discharges all liability for financial and bodily harm. Only whatever remains intact of the plundered property must be returned.
Conditions of Repentance:
Repentance has two forms: outward and inward. The science of fiqh considers only the outward form, not the inward form, because no one knows the inward form except Allah. If a rebel or terrorist repents before being arrested, his repentance will be accepted and all the benefits of repentance will take effect. Some jurists have imposed the condition that the repentant person must seek protection from the ruler and receive protection from him. Others say this is not a condition. Rather, it is the ruler’s duty to recognize every repentant person’s repentance. Some say that even without going to the ruler, it is sufficient for a person to lay down his arms, abandon criminal activities, and reassure the people.
Ibn Jarir said that Musa al-Madani related that ‘Ali al-Asadi engaged in rebellious activity, spread terror, and committed murder and plunder. Consequently, the ruler and the people began searching for him. But he succeeded in protecting himself, and no one could apprehend him. Finally, one day he heard a man reciting verse 54 of Surah al-Zumar:
قُلْ يَا عِبَادِيَ الَّذِينَ أَسْرَفُوا عَلَى أَنْفُسِهِمْ لَا تَقْنَطُوا مِنْ رَّحْمَةِ اللَّهِ ، إِنَّ اللَّهَ يَغْفِرُ الذُّنُوبَ جَمِيعًا ، إِنَّهُ هُوَ الْغَفُورُ الرَّحِيمُ
“Say, ‘O My servants who have transgressed against themselves, do not despair of Allah’s mercy. Indeed, Allah forgives all sins. Indeed, He is the Most Forgiving, Most Merciful.’” When he heard this, he stopped before the man and said to him, “O servant of Allah, recite the verse again.” The man recited it again. Immediately, ‘Ali al-Asadi sheathed his sword, repented, and came to Madinah in the last part of the night. Upon arriving in Madinah, he performed ghusl, went to the Prophet’s Mosque, and prayed Fajr. Then he sat with a large number of Companions near Abu Hurayrah. When morning came, the people recognized him, and at once they moved toward him to arrest him. He said to the crowd, “You have no right to apprehend me. I have repented and presented myself before you before you could reach me.” Abu Hurayrah رضي الله عنه said, “He has spoken the truth.” Then he took him by the hand to Marwan ibn al-Hakam, the governor of Madinah under Amir Mu‘awiyah, and said to him, “This is ‘Ali, who has come after repenting. You have no right to arrest or kill him.” Marwan pardoned him for all his crimes. Thereafter, ‘Ali set out by sea to strive in the path of Allah. On the way, he encountered the Roman forces. His ship collided with the Romans’ ship. At one point he boarded the Roman ship, causing the Roman soldiers to flee to the opposite side of the vessel out of fear of him. The ship tilted and sank, taking him and the Romans down with it.
Punishment Is Waived When the Offender Repents Before Being Taken to the Ruler
It was mentioned earlier that if a rebel or robber repents before being arrested, he will be exempted from the punishment for robbery or rebellion. This is because verse 34 of Surah al-Ma’idah states:
إِلَّا الَّذِينَ تَابُوا مِنْ قَبْلِ أَنْ تَقْدِرُوا عَلَيْهِمْ فَاعْلَمُوا أَنَّ اللَّهَ غَفُورٌ رَّحِيمٌ
“Except for those who repent before you apprehend them; know, then, that Allah is Most Forgiving, Most Merciful.”
This exemption is not limited to robbers or rebels; rather, it applies to all punishments. Whoever commits an offense subject to a hadd and repents before, after being apprehended, he is taken to the ruler, his hadd will be waived. If the hadd of robbers, terrorists, and rebels is waived, then waiving the hadd of others is even more appropriate, since they are responsible for much lighter offenses than these. Ibn Taymiyyah expressed the same view, saying: “Whoever repents of fornication, theft, or drinking alcohol before being arrested will have his hadd waived. Likewise, by consensus, the hadd of a rebel or robber is waived if he repents before being arrested.” Al-Qurtubi said that when a drinker, fornicator, or thief repents, reforms himself, and this repentance becomes known, then is apprehended and brought before the ruler, it is not appropriate to carry out the hadd on him. But if, after being brought before the ruler, he says, “I have repented,” he will not be exempted. In this state he is like a rebel who has been defeated.
Clarifying this difference of opinion, Ibn Qudamah said that if a punishable robber or rebel repents and reforms himself, there are two narrations concerning him. One is that his punishment will be waived, because Allah says in verse 16 of Surah al-Nisa’:
وَالَّذِينَ يَأْتِيَانِهَا مِنْكُمْ فَآذُوهُمَا فَإِنْ تَابَا وَأَصْلَحَا فَأَعْرِضُوا عَنْهُمَا إِنَّ اللَّهَ كَانَ تَوَّابًا رَحِيمًا
“As for the two among you who commit it, discipline them; but if they repent and reform themselves, then leave them alone.”
After mentioning the punishment for theft, Allah says in Surah al-Ma’idah:
فَمَنْ تَابَ مِنْ بَعْدِ ظُلْمِهِ وَأَصْلَحَ فَإِنَّ اللَّهَ يَتُوبُ عَلَيْهِ إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ
“Whoever repents after his wrongdoing and reforms himself, Allah will surely accept his repentance. Indeed, Allah is Most Forgiving, Most Merciful.”
The Messenger of Allah ﷺ said, “The one who repents from sin is like one who has no sin.” And whoever has no sin has no hadd.
When the Messenger of Allah ﷺ heard that Ma’iz, overcome by the pain of stoning, had tried to flee, he said, “Why did you not leave him? Then he would have repented and Allah would have forgiven him.” Moreover, since this is entirely a right of Allah, its punishment is waived through repentance, just as the punishment for robbery and terrorism is waived through repentance.
Two: his punishment will not be waived. This is the view of Malik and Abu Hanifah and one of al-Shafi‘i’s two views. Allah’s command, “Flog the fornicating woman and the fornicating man with one hundred lashes,” applies to both those who repent and those who do not. Likewise, the verse commanding the amputation of the male thief’s and female thief’s hands is not conditional upon repentance. Moreover, the Messenger of Allah ﷺ punished Ma’iz, the woman of the Ghamid tribe, and another person even though they confessed to theft. Yet all of them had come after repenting and wishing to purify themselves by having the hadd carried out on them. The Messenger of Allah ﷺ called their action repentance. Regarding the Ghamidi woman, he remarked, “She has repented with a repentance that, if distributed among seventy inhabitants of Madinah, would suffice for them.” ‘Amr ibn Samurah رضي الله عنه came to the Messenger of Allah ﷺ and said, “O Messenger of Allah ﷺ, I stole camels from such-and-such a tribe; purify me.” The Messenger of Allah ﷺ then carried out the hadd on him. Furthermore, since the hadd is an expiation, an expiation is not waived. In addition, he is under the ruler’s authority; therefore, his hadd will not be waived, just as the hadd of a robber or terrorist is not waived after apprehension. If we adopt the view that the hadd is waived upon repentance, the question arises: in that case, is repentance alone sufficient, or must one reform oneself along with repenting? There are two views on this matter. One is that the hadd is waived by repentance alone. This is the view of most of our imams, because this is repentance that waives the hadd. It therefore resembles the repentance of a robber, terrorist, or rebel before apprehension. The second view is that reform of the repentant person’s character is also necessary, because Allah says, “If they repent and reform themselves, then leave them alone.” According to this view, it is necessary to wait for some time to determine whether the offender’s repentance is genuine and his intention sincere. No specific period has been set for this, although some Shafi‘i scholars set a period of one year. However, setting such a period is unwarranted and unlawful.
Fighting in Self-Defense and to Protect the Lives and Property of Others
When an assailant attacks someone with the intention of killing him, seizing his property, or violating the honor of the women in his family, the victim has the right to fight the aggressor to protect his life, property, and honor. He should begin with the easier means of resistance and gradually adopt more forceful means: first speaking, then shouting, and then seeking people’s help. If none of these prevents the attack, he should strike to see whether that will suffice; if it does not, and the attack cannot be stopped except by killing, then he may kill him. In such a case, no qisas or expiation will be imposed on the killer, and the deceased will be owed no diyah, because he was a killer and an aggressor. The blood of an aggressive wrongdoer is lawful, and no compensation is required for it. If the victim is killed in this struggle of self-defense, he will be a martyr.
Allah says:
وَلَمَنِ انْتَصَرَ بَعْدَ ظُلْمِهِ فَأُولَئِكَ مَا عَلَيْهِمْ مِنْ سَبِيلٍ
“There is no blame upon those who, after being wronged, defend themselves.” (Surah al-Shura, verse 41)
Abu Hurayrah رضي الله عنه narrated that a man came to the Messenger of Allah ﷺ and said, “O Messenger of Allah ﷺ, what should I do if someone comes to take my property?” The Messenger of Allah ﷺ said, “Do not let him take your property.” He asked, “What if he tries to fight me?” The Messenger of Allah ﷺ said, “Then fight him.” He asked, “What if he kills me?” The Messenger of Allah ﷺ said, “Then you are a martyr.” He asked, “And what if I kill him?” The Messenger of Allah ﷺ said, “Then he will be an inhabitant of Hell.”
Al-Bukhari narrated: The Messenger of Allah ﷺ said, “Whoever is killed while defending his property is a martyr, and whoever is killed while defending his honor is a martyr.”
It is reported that when a certain woman went out to gather wood, a man approached her with evil intentions. She then threw a stone at him and killed him. When the incident was later related to Umar (may Allah be pleased with him), he said, “He was killed by the hand of Allah. Allah will never require blood money to be paid for him” (that is, he will not receive blood money). When one’s life, property, or honor is attacked, it is obligatory to try to protect them. The condition, however, is that this must be done while ensuring one’s own safety. This is because trying to protect another’s life, property, or honor, resisting wrongdoing, and safeguarding another’s rights all fall within one’s responsibilities. The Messenger of Allah (peace and blessings be upon him) said, “Whoever among you sees a wrongdoing must change it with his hand; if he is unable to do so, then with his tongue; and if he is unable to do so, then he must hate it in his heart. And hating it in the heart is the weakest form of faith.” In reality, this is included among the means of resisting wrongdoing.
7. The Punishment for Theft
Islam respects property because it is a means of survival. Islam also respects an individual’s ownership of property for three reasons: first, this is natural; second, it stimulates motivation; and third, it is just. Islam regards a person’s ownership and right over his property as a sacred right. Therefore, no one is permitted to attack or violate this right in any way. For this reason, Islam has forbidden theft, usurpation, embezzlement, breach of trust, usury, deception or fraud, cheating in measures and weights, and bribery. It has declared any property or goods not acquired through lawful means to have been acquired through false and unlawful means.
Islam is exceedingly strict regarding theft. Therefore, it has prescribed the punishment of cutting off the thief’s hand, since this is the hand used in committing theft. The rationale is clear: the treacherous hand that appropriates another’s property is like a diseased organ of the body. It must be cut off and removed in order to keep the body safe and free of disease. Just as it is necessary to sacrifice a minor interest for a greater one, so it is unanimously desirable, according to all laws, the Shariah, and reason, to impose the ultimate punishment on one or two individuals for the sake of the interests of the entire nation. Moreover, if a person’s occupation induces him to seize another’s property, the punishment of cutting off the thief’s hand is highly instructive for him. It will deter him from the audacity of reaching out toward other people’s property. In this way, people’s wealth is protected and kept secure. Allah says:
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِّنَ اللَّهِ وَاللَّهُ عَزِيزٌ حَكِيمٌ
“As for the male thief and the female thief, cut off their hands as a recompense for what they have earned and as a deterrent from Allah. And Allah is Mighty and Wise.” (Surah al-Ma’idah, verse 38).
The Rationale for the Severity of the Punishment for Theft
There are many other crimes involving unjust aggression against people’s wealth. Yet no punishment as severe as that for theft has been prescribed for the other crimes. Imam al-Nawawi explained the rationale in his commentary on Sahih Muslim as follows: Qadi Iyad (may Allah be pleased with him) said that Allah secured people’s wealth by making the cutting off of a thief’s hand obligatory. He did not do this for other crimes, such as robbery, embezzlement, and usurpation, because those crimes are less frequent than theft. Moreover, it is possible to seek redress for them by lodging complaints with the authorities. It is also comparatively easy to produce witnesses against them. Theft is different. Producing witnesses to theft is extremely rare and difficult. Thus, it is a serious crime, and its punishment is severe so that a more effective deterrent against it can be established.
Types of Theft
Theft is initially of two types: 1. Theft for which ta‘zir is required. 2. Theft for which the prescribed punishment is required.
Ta‘zir is required for theft in which the conditions for applying the hadd are not fulfilled. For theft in which the punishment of cutting off the hand is not prescribed, the Messenger of Allah (peace and blessings be upon him) imposed double compensation on the thief. He did so in the case of a thief who took fruit hanging from trees and goats grazing in the field. In the first case, the thief of dates and other fruits was exempted from the punishment of cutting off the hand. It was said that if someone ate some of these fruits and was in need of them, he would incur neither punishment nor compensation. If someone took some of them away, he would be given double their amount as compensation and punishment. But if someone stole some of them by carrying them away in his bag, his hand was to be cut off, provided that the stolen property reached the nisab required for cutting off the hand. In the second case, if someone stole a goat from a grazing area, the thief would be fined twice the goat’s value and given some physical punishment. But if an animal taken from its enclosure was worth the nisab for cutting off the hand, the thief’s hand would be cut off. —Ahmad, al-Nasa’i, and al-Hakim.
The theft to which the hadd prescribed by the Shariah applies is of two types: first, minor theft, for which cutting off the hand is obligatory; and second, major theft—seizing property by force while armed, which is called highway robbery. This has already been discussed in detail. Here, the discussion will be limited to minor theft.
Definition of Theft
Theft is secretly taking another person’s property. Secretly listening to someone’s speech by theft is called eavesdropping. Looking secretly by theft means looking stealthily. The Holy Qur’an says in Surah al-Hijr, verse 18:
إِلَّا مَنِ اسْتَرَقَ السَّمْعَ فَأَتْبَعَهُ شِهَابٌ مُّبِينٌ
“But whoever stealthily listens for news is pursued by a clear burning flame.” Here, secretly listening to something is called listening by theft. Al-Qamus says: “Theft is secretly coming to take another person’s property from a guarded place.” Ibn Arafah says: “Among the Arabs, a sariq, or thief, is one who secretly comes to a guarded place to take property that does not belong to him.” From the definitions of al-Qamus and Ibn Arafah, it is known that theft has three elements: (1) taking another person’s property; (2) taking it secretly and covertly; and (3) taking it from a guarded place.
Therefore, if the property does not belong to someone else, or if it is taken openly, or if the property being taken was not guarded at the time it was taken, the punishment of cutting off the hand will not be applied for this theft.
An Embezzler, Robber, and Breacher of Trust Are Not Thieves
For the reasons mentioned above, a breacher of trust, robber, and embezzler are not considered thieves, and none of them will be punished by having his hand cut off. However, ta‘zir must be imposed. Jabir (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “The hand of a breacher of trust, robber, or embezzler is not to be cut off.” —Abu Dawud, al-Tirmidhi, al-Nasa’i, Ibn Majah, al-Hakim, and al-Bayhaqi.
A breacher of trust is one who takes another person’s property while pretending to be the owner’s well-wisher. A robber is one who openly and forcibly takes another person’s property. An embezzler is one who openly takes another person’s property and runs away. Muhammad ibn Shihab al-Zuhri said that once a man who had embezzled something was brought before Marwan ibn al-Hakam. Marwan decided to cut off his hand. A messenger was then sent to Zayd ibn Thabit (may Allah be pleased with him) to ask whether this was correct. Zayd said: “The hand is not cut off for embezzlement.” —Muwatta of Imam Malik.
Ibn al-Qayyim said that the decision to cut off a thief’s hand for stealing at least three dirhams, while not cutting off the hand of an embezzler or robber, is a highly rational ruling of the Shariah. Complete protection from a thief is impossible. He breaks through houses, enters guarded places, and breaks locks. The owner of property cannot do more than protect it from the thief. If the thief’s hand were not cut off in such circumstances, people would steal one another’s property wholesale, extensive damage would result, and thieves would cause grave disorder in society. The situation of the robber and embezzler is the opposite. A robber plunders property openly and in full view of people. Thus, the public can apprehend him and prevent him from plundering, restore the oppressed person’s right, or testify against him in court. An embezzler takes property when its owner is heedless. Thus, the owner displays a degree of negligence that assists the embezzler in his act. Otherwise, embezzlement would be impossible if complete vigilance and impenetrable guarding were maintained. Therefore, an embezzler is not like a thief; rather, he more closely resembles a breacher of trust. Moreover, in most cases an embezzler takes property while its owner is inattentive. In fact, the embezzler himself makes the owner careless and takes the property when the owner is heedless of it and it is out of sight. Thus, protection against this is largely possible. Accordingly, an embezzler and a plunderer are in the same category. But the crime of a usurper is clear and open. He is even more deserving than a plunderer of exemption from the punishment of cutting off the hand. Nevertheless, the harm caused by these criminals can be prevented through beating, humiliation, lengthy imprisonment, and fines.
Denial After Taking a Loan
Taking a loan and then denying it is undoubtedly a crime. However, the jurists differed as to whether it constitutes theft warranting the cutting off of the hand. According to most jurists, the hand of one who denies having taken a loan is not cut off, because the Qur’an and Sunnah command that the hand of a thief be cut off, whereas one who denies a loan is not a thief. Conversely, according to Ahmad, Ishaq, Zufar, the Kharijites, and the Zahiri school, the hand must be cut off. Ahmad, Muslim, and al-Nasa’i narrated from Aishah (may Allah be pleased with her): “A woman from the Banu Makhzum would borrow various items and later deny having borrowed them. Therefore, the Messenger of Allah (peace and blessings be upon him) ordered that her hand be cut off. Her family then went to Usamah ibn Zayd and asked him to intercede with the Messenger of Allah (peace and blessings be upon him) on her behalf. Usamah interceded with the Messenger of Allah (peace and blessings be upon him) to pardon the woman. The Messenger of Allah (peace and blessings be upon him) said: ‘O Usamah, are you interceding regarding one of the punishments prescribed by Allah? I do not want to see this.’ Then the Messenger of Allah (peace and blessings be upon him) stood to deliver a sermon and said: ‘The people before you were destroyed only because, when a noble person among them stole, they let him go, but when a weak person stole, they cut off his hand. By Allah, even if this woman were Fatimah, the daughter of Muhammad, I would cut off her hand.’ Then he cut off the hand of the woman from Banu Makhzum.” Ibn al-Qayyim supported this view. He considered one who denies having taken a loan to be a thief according to the requirements of the Shariah. In Zad al-Ma‘ad, he says: “Just as the Messenger of Allah (peace and blessings be upon him) classified every type of intoxicant as wine, he likewise classified one who denies a loan as a thief. In reality, this is how he
explained to the Ummah the meaning of Allah’s words.” The commentary in al-Rawdah al-Nadiyyah states: “Even if one who denies a loan is not a thief in the lexical sense, he is certainly a thief in the terminology of the Shariah. The Shariah always takes precedence over linguistic usage. Ibn al-Qayyim said in I‘lam al-Muwaqqi‘in that the rationale and wisdom of classifying denial after taking a loan as theft are very clear. Loan transactions are beneficial to all people on the one hand and indispensable on the other. They become necessary when the borrower is in need and difficulty, whether the loan is given in return for rent or without any return. It is not always possible for others to witness loan transactions, nor is it possible, either according to the Shariah or customary practice, to discontinue lending as a precaution. In reality, there is no difference between two people, one of whom takes another’s belongings through theft and the other of whom appropriates another’s goods by taking a loan and then denying it. However, accepting an item or cash as a trust and then denying it cannot be called theft in the language of the Shariah, because the owner himself relinquished possession of the item and allowed another person to take it.”
The Shroud Thief
The disagreement over whether appropriating a borrowed item by denying the loan should be considered theft also applies to the shroud thief. According to most jurists, the punishment of the shroud thief is the cutting off of the hand, because he is genuinely a thief: a grave is a guarded place, and secretly removing a shroud from it is genuinely theft. But according to Abu Hanifah, Muhammad, al-Awza‘i, and al-Thawri, his punishment is not cutting off the hand, but a lesser punishment, namely ta‘zir. This is because he took an object that had no owner. A deceased person does not own anything. Moreover, according to them, a grave is not a guarded place but an unguarded one.
Conditions Required for the Punishment of Theft
The definition of theft given earlier makes it clear that the stolen property and the place of theft must possess certain specific characteristics. Their presence is essential for the crime of theft to be regarded as deserving the punishment prescribed by the Shariah. These characteristics may also be called the conditions for applying the punishment. These conditions are mentioned below:
Conditions Required of the Thief for Theft to Be Punishable
1. The thief must be of sound mind and an adult. Thus, an insane person and an underage child, whether boy or girl, are not liable to the punishment of having the hand cut off, because the rulings of the Shariah do not apply to them. However, a minor who commits theft must receive a lesser punishment. Being Muslim is not a condition for the hadd to apply to a thief. Therefore, when a non-Muslim or an apostate—one who has abandoned Islam—commits theft, his hand will be cut off. Likewise, if a Muslim steals the property of a non-Muslim, his hand will also be cut off.
2. He must possess free will. In other words, the theft must be committed on the thief’s own volition. If someone is forced to steal, he will not be considered a thief, because as soon as he is compelled, his freedom disappears. The rulings of the Shariah do not apply to one who lacks freedom.
3. The thief must have no doubt regarding ownership of the stolen property. If there is any doubt, his hand will not be cut off. Thus, a father or mother will not have the hand cut off for stealing the property of his or her child, because the Messenger of Allah (peace and blessings be upon him) said: “You and all your property belong to your father.” Likewise, a child’s hand will not be cut off for stealing the property of both parents or either one of them, because a child generally considers himself entitled to spend his parents’ property. Similarly, the hand of a grandfather, great-grandfather, grandson, or great-grandson will not be cut off. Then there are blood relatives who are mahram, such as maternal aunts, paternal aunts, sisters, paternal uncles, maternal uncles, and brothers. According to Abu Hanifah and al-Thawri, the hand of anyone in this category will not be cut off, because cutting off their hands would sever blood relationships that Allah has commanded people to maintain. Moreover, since they have the right to enter the house, they are like friends of the householder. Therefore, household goods are not fully protected from them. In this respect, such relatives are like a guest who has been permitted to enter the house. For this reason, a guest’s hand cannot be cut off if he steals. Malik, al-Shafi‘i, Ahmad, and Ishaq said that if any of them steals, his hand will be cut off, because there is no doubt regarding ownership of the stolen property. If a husband and wife steal each other’s belongings, their hands will not be cut off. Because of their interaction and living together, their belongings are not fully protected from each other, and doubt regarding ownership of the items necessarily arises. Thus, the cutting off of the hand is waived. This is the position of Abu Hanifah. According to one narration, it is also the position of al-Shafi‘i and Ahmad. But according to Malik, al-Thawri, and one of the two positions reported from Ahmad and al-Shafi‘i, if a husband and wife have separate rooms and each person’s belongings are kept in his or her own room, then the hand of either one who steals the other’s property will be cut off, because the property is fully protected and each spouse has a separate space. If a servant who personally serves his master commits theft, his hand will not be cut off. It is narrated from Abdullah ibn Umar (may Allah be pleased with him) that a man came to Umar (may Allah be pleased with him) with one of his servants and said, “Cut off his hand. He stole my wife’s mirror.” Umar said, “No, his hand will not be cut off. As your servant, he took something belonging to you.” This was the view of Umar (may Allah be pleased with him) and Ibn Mas‘ud, and no Companion opposed their view. If a Muslim steals from the government treasury, his hand will not be cut off, because it is reported that one of Umar’s officials wrote to him asking what should be done if someone stole from the Bayt al-Mal (the government treasury). He replied, “Do not cut off his hand, because every Muslim has a right in the Bayt al-Mal.” Al-Sha‘bi narrated: “A
man stole from the Bayt al-Mal. When Ali (may Allah be pleased with him) heard this, he remarked, ‘He also has a share in the Bayt al-Mal.’ He did not cut off his hand. The statements of Ali (may Allah be pleased with him) and Umar (may Allah be pleased with him) explain why the hand is not cut off for stealing from the Bayt al-Mal: since everyone has a share in it, some doubt arises, and that doubt waives the punishment. Ibn Qudamah said that if someone who has a share in property steals from that property, or if someone who has a share in war booty steals from the booty, his hand will not be cut off. This is the view of most scholars. According to Imam Malik, however, the hand will be cut off, because the relevant verse commands the hand of every kind of thief to be cut off.
Ibn Majah narrated from Ibn Abbas (may Allah be pleased with him) that when one of the slaves acquired as war booty was caught stealing from the booty, the Messenger of Allah (peace and blessings be upon him) did not cut off his hand. He said: “Both the thief and the stolen property belong to Allah. They have stolen from one another.”
If a lender steals from the property of a debtor who delays repayment of a loan or denies the debt, the lender’s hand will not be cut off, because by doing so he has recovered the loan. But if the debtor acknowledges the debt and is able to repay it, and the lender steals from his property, the lender’s hand will be cut off, because there is no doubt regarding his theft in this case. If an item lent to a borrower is stolen from the borrower, the thief’s hand will not be cut off, because the borrower is not the owner of the lent item but its trustee. If someone usurps or steals an item and keeps it in his possession, and another thief then steals it from him, according to al-Shafi‘i and Ahmad the latter thief’s hand will not be cut off, because the stolen item was kept in a place to which its owner had not consented. According to Imam Malik, however, the hand will be cut off, because he stole an item regarding which there was no doubt and stole it from a guarded place. When the public is struck by a calamity and someone steals food, if that food is still available, the thief’s hand will be cut off, because it was not necessary for him to steal it. But if it is no longer available, his hand will not be cut off, because he had a need and therefore had the right to take it. Umar (may Allah be pleased with him) said, “No hand is cut off in a year of famine.” Imam Malik narrated in his Muwatta that some slaves of Hatib stole a she-camel belonging to a man from the Muzaynah tribe and slaughtered it. When the matter was brought before Umar (may Allah be pleased with him), he ordered Qusayyir ibn al-Salt to cut off their hands. Then Umar said, “I see that you have kept them hungry and distressed.” By Allah, I will impose on you a fine that you will struggle to pay.” Then he said to the man from Muzaynah, “How much was your she-camel worth?” He replied, “By Allah, I would not have given it up even for four hundred dirhams.” Umar said, “Give him eight hundred dirhams.” Ibn Wahb narrated that after Umar ibn al-Khattab (may Allah be pleased with him) ordered Qusayyir ibn al-Salt to cut off the thieves’ hands, he sent a messenger to bring the slaves to him. The messenger brought them at the appointed time. Umar then said to Abd al-Rahman, the son of Hatib, “Had I not thought that you made them work without feeding them, until they reached such a state that they would eat even unlawful food if they found it, I would have cut off their hands. But by Allah, since I have spared them, I will impose on you a fine that will be difficult for you to pay.”
Conditions Required in the Stolen Property for Theft to Be Punishable
The characteristics or conditions that must be present in stolen property are as follows: First, the item must be regarded as property, ownership of it must be legally established, and it must be lawful to sell it and receive something in exchange for it. Therefore, if someone steals wine or pork, his hand will not be cut off, even if the owner of either is a non-Muslim. Allah has forbidden both Muslims and non-Muslims from owning these two things and benefiting from them. (Although Imam Abu Hanifah ruled that it is permissible for a non-Muslim to own wine and pork, and that compensation is obligatory if someone destroys them, he nevertheless supported the view that the hand is not cut off for stealing them, because they are not complete property, whereas complete property is a condition for applying the punishment.) Likewise, the hand of anyone who steals instruments and equipment used for music, singing, dancing, and similar activities will not be cut off. This is because the use of such instruments is not lawful according to many scholars. They are not treated as property, ownership of them is not established, and their sale is not lawful. Even those who consider their use lawful agree that the hand of one who steals them is not cut off, because doubt exists regarding such items, and doubt waives the punishment.
The scholars differ regarding the theft of a free minor child who has not yet developed the ability to distinguish right from wrong. According to Abu Hanifah and al-Shafi‘i, since the child is not property, the thief’s hand will not be cut off, although ta‘zir must be imposed. Even if such a child is wearing clothes or gold and silver jewelry, the thief’s hand will not be cut off (because the jewelry worn by the child is considered an adjunct of the child, and stealing it separately is not intended. Abu Yusuf said that if the jewelry reaches the nisab, the hand will be cut off). Imam Malik said that the thief’s hand will be cut off for stealing a child, because the child is among the most valuable forms of property. In this case, the hand is not cut off because a specific item of property was stolen; rather, it is cut off solely because the property is connected with a living human being. The connection with a free person is greater than that with slaves. If a minor slave who has not yet developed the ability to distinguish right from wrong is stolen, the thief’s hand will be cut off, because such a slave is considered property. Conversely, if a slave who has developed the ability to distinguish right from wrong is stolen, the thief’s hand will not be cut off, because although the slave is property that may be bought and sold, he exercises authority over himself. Therefore, he is not considered to be within the owner’s guarded ownership. As for things that may lawfully be owned but may not lawfully be sold, such as dogs kept for guarding, hunting, and agricultural work, and sacrificial meat, Ashhab of the Maliki school said that the hand of one who steals such a dog will be cut off. But the hand of one who steals a dog kept for a purpose other than guarding, hunting, or agriculture will not be cut off. Regarding the thief of sacrificial meat, Asbagh of the Maliki school said that if it is stolen before the sacrificial animal is slaughtered, the hand will be cut off; if it is stolen after slaughter, the hand will not be cut off.
There is disagreement concerning the thief of water, ice, grass, salt, and soil. The author of Al-Mughni says that the hand of the thief of water will not be cut, because it is not considered property in the view of Islamic law. There is no disagreement on this matter. There is, however, disagreement concerning grass and salt. Abu Bakr said that the hands of the thieves of these two things will not be cut, because they fall among the things that Islamic law has declared to be jointly owned by all people. Abu Ishaq said that the hand will be cut, because these two things are considered property. Regarding ice, the qadi said that it is like water, because it is merely frozen water. If soil is of the kind in which people generally have very little interest, such as soil used for plastering or construction (or for pottery or making bricks), the hand will not be cut, because such soil is not considered property. If it is highly valuable soil, such as soil used in making medicines or soap or for coloring, then there are two views: (1) the hand will not be cut, because, like water, it is not classified as property; (2) the hand will be cut, because it is considered common property and is exported commercially abroad.
As for things that are intrinsically lawful and open to everyone, such as fish and birds (including roosters, hens, ducks, and pigeons), the hand will not be cut for stealing them unless they were stolen while protected under the ownership of a particular person. If they are stolen while protected, the jurists disagree. According to the Maliki and Shafi’i schools, the hand will be cut, because the thief stole something that was protected and had value. According to the Hanbali and Hanafi schools, the hand will not be cut, because the Messenger of Allah (peace and blessings be upon him) said, “Whoever catches game, it belongs to him.” This hadith creates a doubt that prevents the punishment.
Abdullah ibn Yasar said: A man was caught stealing a hen and was brought before Umar ibn Abd al-Aziz. He decided to cut off the man’s hand. Salim ibn Abd al-Rahman then told him that Uthman (may Allah be pleased with him) had said that the hand is not cut for stealing a bird. Another report says that Umar ibn Abd al-Aziz himself asked Sa’ib ibn Yazid for a legal opinion, and he said, “I have never seen anyone’s hand cut for stealing a bird, nor is cutting the hand required for this.” Umar ibn Abd al-Aziz therefore refrained from cutting the hen-thief’s hand. Some jurists said that birds lawful for everyone means birds that are normally hunted; roosters, hens, and ducks are not included. Cutting the hand is obligatory for stealing ducks and hens, because they are considered domesticated animals. Imam Abu Hanifa said that the hand is not cut for stealing fresh food, such as milk, meat, and fresh fruit; for stealing grass and firewood; or for stealing things that spoil quickly, even if the stolen property is equal to the minimum nisab, because people generally have little attachment to such things. Their owners are also not usually so miserly that they need to be punished. Moreover, the protective arrangements here are incomplete. The Messenger of Allah (peace and blessings be upon him) said, “People have equal rights in three things: water, fire, and grass.” Another matter on which the jurists disagree is the theft of the Qur’an. Abu Hanifa said that the hand of one who steals a copy of the Qur’an will not be cut, because it is not property and everyone has a right to it. Imam Malik, al-Shafi’i, Abu Thawr, Abu Yusuf, and Ibn al-Mundhir, however, said that if the value of the copy of the Qur’an equals the minimum nisab for cutting the hand, the thief’s hand will be cut.
The second condition that must be met by the stolen property is that it must equal the minimum nisab for cutting the hand. A measure by which the hadd can be applied is necessary. The item must also have enough value that its loss harms the public interest. People are accustomed to tolerating the loss of items of little value. Therefore, the early scholars did not cut off a thief’s hand for stealing trifling things. The jurists disagree over the amount of the nisab. Most scholars hold that it must equal one-quarter of a gold dinar or three silver dirhams. The rationale for setting the amount this way is clear: it corresponds to the one-day expense of an average person for himself and his family. A person’s one-day expense for himself and his family is the nisab. It is narrated from Aishah (may Allah be pleased with her) that the Messenger of Allah (peace and blessings be upon him) cut off a thief’s hand for stealing property worth a quarter dinar or more. —Ahmad, Muslim, and Ibn Majah.
Another narration in al-Nasa’i states: “The hand is not cut for an item worth less than a shield.” Aishah (may Allah be pleased with her) was asked, “What was the price of a shield?” She replied, “A quarter dinar.” The narration of Ibn Umar reported by al-Bukhari and Muslim supports the above hadith: the Messenger of Allah (peace and blessings be upon him) cut off a thief’s hand for a shield worth three dirhams.
The Hanafi school holds that the hand is cut for ten dirhams or more, but not for less. They cite hadiths from al-Bayhaqi, al-Tahawi, and al-Nasa’i in support of their view. Hasan al-Basri and Dawud al-Zahiri, on the other hand, held that since the verse specifies no particular amount, the hand is cut for theft whether the amount is small or large. Moreover, Abu Hurayrah (may Allah be pleased with him) narrated in al-Bukhari and Muslim that the Messenger of Allah (peace and blessings be upon him) said, “May Allah curse the thief. He is liable to have his hand cut even if he steals an egg, and he is liable to have his hand cut even if he steals a camel.” Other jurists refute the view of Hasan al-Basri and Dawud al-Zahiri regarding this hadith by saying: “The narrator of this hadith, al-A’mash, explained it to mean an iron egg, used as armor in battle and similar to a shield. Its value could be greater than that of a shield. A camel was considered to be worth several dirhams. A quarter dinar was exchanged for three dirhams, because Imam al-Shafi’i said in his book al-Rawdah al-Nadiyyah that this accords with the report that a quarter dinar equals three dirhams. During the time of the Messenger of Allah (peace and blessings be upon him), one dinar was exchanged for twelve dirhams. This accords with the reports concerning the assessment of blood money: one thousand dinars if paid in gold and twelve thousand dirhams if paid in silver. Abu Hanifa and his disciples consider cutting the hand obligatory for stealing at least ten dirhams or one dinar. If an item other than cash is stolen and is worth ten dirhams or one dinar, the hand will be cut; if it is worth less, it will not. According to the report of Amr ibn Shu’ayb, a shield cost ten dirhams during the time of the Messenger of Allah (peace and blessings be upon him). This valuation is also narrated from Ibn Abbas and others. In their view, determining the shield’s value according to this valuation is the more cautious approach. In reality, however, setting the value of a shield at ten dirhams would contradict the most authentic hadith. Malik and Ahmad said: the minimum amount for theft is a quarter dinar, three dirhams, or an item worth three dirhams. Valuation should specifically be made in dirhams.
Some have asked how it can be just to cut off a hand for only a quarter dinar when the blood money or compensation for a hand is five hundred dinars. The answer is that Islam prescribed cutting the hand for stealing such a small amount solely to protect property, while it set the blood money for the hand at five hundred dinars to ensure the hand’s protection. When the hand was trustworthy and honest, it was valuable; when it became dishonest and a thief, its value decreased.
When is the value of stolen property to be assessed?
According to the Maliki, Shafi’i, and Hanbali schools, the value of stolen property is assessed according to the market price on the day the theft occurred.
Group theft
When a group of thieves steals enough property that, if it is divided among all the members, each member’s share reaches the amount requiring hand amputation, then, by unanimous agreement of the jurists, the hands of all of them will be cut. But if the stolen property as a whole equals the nisab for hand amputation while, after division, each share does not equal the nisab, the jurists disagree. According to most jurists, all their hands will be cut. Abu Hanifa said that the hand will not be cut unless each person’s share reaches the nisab. Ibn Rushd said: Those who hold that everyone’s hand will be cut view the punishment as connected with the total amount of stolen property; that is, for the protection of people’s property, this amount itself makes hand amputation obligatory. Those who hold that amputation depends only on each person’s share, and that no hand may be cut for less out of respect for the hand, say that when the amount of property for which Islamic law makes hand amputation obligatory is divided among more people, a greater number of hands cannot be cut.
Conditions that must be met by the place from which the theft occurred
The essential condition for the place from which a theft occurs is that it be protected, such as a house, shop, stable, pen or cowshed, or a threshing and drying floor for grain. Neither Islamic law nor the dictionary provides a specific rule for this; reliance is placed solely on customary usage. Islamic law considers a place protected when it shows that the owner has taken every possible precaution and care to safeguard the item from loss. Evidence for this is the hadith narrated by the grandfather of Amr ibn Shu’ayb. He said: A man asked the Messenger of Allah (peace and blessings be upon him) about stealing grazing animals from their pasture, and he replied: “For stealing such animals, twice their value must be paid and a humiliating beating administered. But if what is taken from the stall is worth the price of a shield, the hand will be cut.” (That is, if a goat or sheep is stolen from a stall, the thief’s hand will be cut, because the stall is a place of protection; if it is stolen from a pasture, the hand will not be cut.) The man asked, “O Messenger of Allah, what about one who takes something in the fold of his garment?” He replied: “Whoever takes something in his mouth and does not tie it in the fold of his garment is not punished. Whoever carries something away will be made to pay twice its value and will be beaten humiliatingly. Whatever is taken from a place where crops are stored, if it is worth the price of a shield, the hand will be cut.” —Ahmad, al-Nasa’i, al-Hakim, and al-Tirmidhi.
In another hadith, the Messenger of Allah (peace and blessings be upon him) said: “The hand is not cut for stealing dates hanging on a tree or animals roaming in the mountains. But if they are kept in a pen or on a protected threshing floor, then the hand will be cut if their value equals that of a shield.” These two hadiths prove that, for the hand to be cut, the theft must occur from a protected place. Ibn al-Qayyim said: The Messenger of Allah (peace and blessings be upon him) suspended hand amputation for stealing fruit from trees and applied it to theft from a protected place.
According to Abu Hanifa, the hand is not cut for stealing fruit from trees, because its value decreases as fruit is perishable. In fact, this rule applies to every perishable item. However, the view of most jurists is correct, because the Messenger of Allah (peace and blessings be upon him) identified three situations concerning fruit on trees. First, if someone picks fruit and eats it, there is no punishment. Second, if someone picks or plucks fruit from a tree and takes it away, he must pay twice its value and be beaten, but his hand will not be cut. Third, if someone steals fruit from a place where it is dried and stored, his hand will be cut, whether it is completely dry or not. Thus, what matters is the protection and the place of storage; whether the fruit is dry or fresh is irrelevant. Evidence for this is that the Messenger of Allah (peace and blessings be upon him) suspended hand amputation for stealing goats from a pasture, but applied it to theft from a cowshed or pen, because that is a protected place. According to most jurists, theft from a protected place is relevant to cutting the hand, but it is not a condition. Among these jurists are Ahmad, Ishaq, Zufar, and the Zahiri school. The verse says, “Cut off the hands of the male and female thief,” without making hand amputation subject to any condition. Moreover, the hadiths of Amr ibn Shu’ayb are disputed and therefore cannot be used to impose a condition.
Variation in protection according to the type of property
Protection varies according to the type of property. Customary practice is the final standard. In fact, the same thing may sometimes be considered protected and sometimes not. A house, for example, is a protected place for its furniture and the like; a protected room is a protected place for fruit; a stable is a protected place for animals; and a pen is a protected place for goats and sheep.
A person is himself a protected place for his own belongings
A person himself is the protector of his clothing, sleeping cot and bed, and room and bedding, whether he is inside a mosque or elsewhere. If someone stops to rest on the road while carrying all his belongings, he himself is the protector of those belongings, whether he is asleep or awake. Thus, whoever steals a person’s cash or belongings will have his hand cut as soon as he takes possession of them, because the items had been in their owner’s custody. The jurists stipulated, in the case of a sleeping person, that the stolen item must have been beneath his body or beneath his head. They cite as evidence the hadith narrated by Ahmad, Abu Dawud, Ibn Majah, al-Nasa’i, and al-Hakim: “Safwan ibn Umayyah said: I spread out a cloak of mine and slept in the mosque. The cloak was stolen. We caught the thief and brought him to the Messenger of Allah (peace and blessings be upon him). He ordered that his hand be cut. I said, ‘O Messenger of Allah, for a cloak worth only thirty dirhams? I give it to him.’ The Messenger of Allah (peace and blessings be upon him) said, ‘Why did you not do this before bringing him to me?’” That is, why did you not pardon him and give him the cloak before bringing him to me?
This hadith proves that claiming the stolen item and filing a complaint are prerequisites for cutting the hand. If the owner gives the item to the thief or sells it to him before filing a complaint against him, the punishment of hand amputation will be waived. This is known directly from the Messenger of Allah’s (peace and blessings be upon him) statement: “Why did you not give it to him before bringing him to me?”
Pickpocketing
The jurists disagree concerning the pickpocket. One group says that the pickpocket’s hand will be cut, whether he puts his hand into the pocket and takes out what is in it, or cuts the pocket and picks up what falls out. This is the view of Imam Malik, al-Awza’i, Abu Thawr, Ya’qub, Hasan, and Ibn al-Mundhir. Abu Hanifa, Muhammad, and Ishaq, however, hold that if the money in the pocket is visible from outside and the thief cuts the pocket to steal it, the hand will not be cut. If it is concealed inside the pocket and he puts his hand into it and removes it, the hand will be cut.
The mosque as a protected place
Mosque bedding, lamps, mats, and similar items are generally kept in the mosque. The mosque is considered a protected place for them. The Messenger of Allah (peace and blessings be upon him) cut off the hand of a thief who stole a shield worth three dirhams kept in the women’s prayer area of the mosque. (Ahmad, Abu Dawud, and al-Nasa’i.) Similarly, the hand of a thief who steals a mosque door or a valuable decorative item will be cut, because there is no doubt that these are protected items. Shafi’i scholars oppose cutting the hand for stealing a mosque’s lamps and mats, because they are kept for the benefit of Muslims, and the thief also has the right to benefit from them. If the thief is a non-Muslim, however, the matter is different; his hand will then be cut, because he has no right to them.
Theft from a house
It is the unanimous view of all jurists that a house is not a protected place if its door is not closed. Likewise, the jurists agree that if a thief steals from a house owned by one person, his hand will not be cut until he has left the house. But if two people jointly break through or make a hole in a house, then one enters, takes something from inside, and hands it to the other while the latter remains outside, or one throws it from inside and the other takes it outside, the jurists disagree. Imam Malik, al-Shafi’i, and Ahmad hold that the hand of the thief inside will be cut, but not that of the thief outside. Abu Hanifa holds that neither will have his hand cut. If a group makes a breach or hole to enter a house and all enter, then some seize property equal to the nisab while others seize nothing and provide no assistance to those who seized it, Abu Hanifa and Muhammad hold that the hands of the entire group will be cut. Malik and al-Shafi’i hold that only those who seized the property will have their hands cut. If the person inside brings the property to the hole and leaves it there, and the person outside reaches in and carries it out, Abu Hanifa holds that neither person’s hand will be cut. Imam Malik holds that the hand of the person who carried it outside will be cut, while his disciples disagree concerning the person inside who placed it by the hole: some say his hand will be cut and others say it will not. According to al-Shafi’i, only the hand of the person who carried the property outside will be cut. According to Ahmad, both hands will be cut.
Shaykh Abu Ishaq said: If two people break through a wall and enter a house, then one of them carries the property to the hole and places it there while the other takes it outside, there are two views. One is that both hands will be cut, because if neither hand were cut, this would become a permanent means of circumventing hand amputation. The other view is that neither person’s hand will be cut. This is Abu Hanifa’s view, and it is correct, because neither of the two carried the property out of a protected place. If one person makes the breach while the other enters and removes the property, there are also two views. One is like the preceding view: one group says both hands will be cut, while Abu Hanifa says both will be exempted from hand amputation. The other view is that neither person’s hand will be cut, because one made the breach but did not carry the property outside, while the other did carry it outside, but not from a protected place.
Is the owner’s complaint necessary for the punishment of theft?
According to Ahmad, al-Shafi’i, and Abu Hanifa, the punishment cannot be carried out until the owner of the stolen property demands that the hadd be imposed on the thief. According to Imam Malik, it must be carried out even if the owner makes no demand. According to Abu Hanifa, al-Shafi’i, and Ahmad, claiming the stolen property and filing a complaint against the thief are prerequisites for the punishment. The punishment is established either by the testimony of two upright men or by the accused’s confession. According to Malik, al-Shafi’i, and the Hanafis, one testimony or confession is sufficient, because the Messenger of Allah (peace and blessings be upon him) cut off the hands of the thief of the shield and the thief of Safwan’s cloak without ordering them to confess more than once. When repetition is reported in some cases, it is merely to confirm the certainty of the matter. Imam Ahmad, Ishaq, and Ibn Abi Layla, however, hold that repetition at least twice is necessary.
If the thief claims that the stolen property belongs to him
After it has been conclusively established by testimony and evidence that he stole property equal to the nisab from a protected place, if the thief claims that the stolen property is his own, then according to Imam Malik his claim will not be accepted and his hand will be cut off. Abu Hanifa and al-Shafi’i said that the hand will not be cut. Al-Shafi’i called such a thief a “joking thief.”
Teaching the thief ways by which the punishment may be waived
It is recommended for a judge to teach a thief a procedure by which he may escape the punishment. Ahmad, Abu Dawud, and al-Nasa’i reported: A thief was brought before the Messenger of Allah (peace and blessings be upon him) and confessed, but the stolen property was not found with him. The Messenger of Allah (peace and blessings be upon him) said, “I do not think you stole.” The man then said two or three times, “Yes, I certainly stole.”
Ata said: When a thief was brought before judges, the judge would say, “Did you steal? Say, ‘No.’” Ata mentioned Abu Bakr and Umar and said that they both did this when they served as judges. A slave girl who had stolen was brought before Abu al-Darda. He asked her, “Did you steal? Say, ‘No.’” The slave girl said, “No,” and he set her free. A man who had stolen was brought before Umar (may Allah be pleased with him). He asked him, “Did you steal?” and immediately taught him to say, “I did not steal.” He said, “I did not steal,” and Umar at once released him.
The punishment for theft
Once the crime of theft has been proven, it becomes obligatory to carry out the punishment on the thief. His right hand will be cut off at the wrist. Allah said:
وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا
“Whether male or female, cut off the hand of the one who steals.” The practice of cutting off a thief’s hand also existed in the pre-Islamic era. Islam retained this practice after adding certain conditions. It is said that, in the pre-Islamic era, Quraysh were the first to cut off the hand of Duraik, the freed slave of a man named Mulayh of the Banu Khuza’ah. He had stolen valuable treasures from inside the Ka’bah. Some say that another group stole them, planted them with him, and framed him. Al-Qurtubi confirmed that the hand of a thief was cut in the pre-Islamic era. The first person whose hand was cut in that era was al-Walid ibn al-Mughirah. Later, after the rise of Islam, Allah again commanded that his hand be cut. After the rise of Islam, the Messenger of Allah (peace and blessings be upon him) first cut the hand of Khiyar ibn Adi among the men, and the hand of Murrah bint Sufyan among the women. Abu Bakr cut the right hand of a Yemeni man for stealing a string of pearls. Umar (may Allah be pleased with him) cut the hand of Ibn Samurah. Neither the owner of the stolen property nor the ruler is permitted to pardon the thief’s punishment. It is not even permissible to replace it with a lesser punishment, suspend it, or delay it. According to the Shi’ah, however, if the person whose property was stolen pardons the thief, the punishment is waived. They also hold that the ruler may, for a reasonable cause, waive or delay the punishment of certain individuals. Ahl al-Sunnah strongly oppose this view, because the Messenger of Allah (peace and blessings be upon him) said, “Avoid punishments among yourselves. But when a case reaches the ruler, if the ruler pardons it, Allah will not pardon it.” If he steals a second time, his foot will be cut off. If he steals a third time, Abu Hanifa holds that the lesser punishment is imprisonment. According to al-Shafi’i and others, the left hand will be cut off. If he steals again, he will be imprisoned as a lesser punishment.
After cutting off the thief’s hand, the bleeding must be stopped and the wound treated
After the thief’s hand is cut off, measures must be taken to stop the bleeding and prevent his death. Al-Daraqutni, al-Hakim, al-Bayhaqi, and Ibn Hibban narrated from Abu Hurayrah (may Allah be pleased with him): A man was brought to the Messenger of Allah (peace and blessings be upon him) for stealing a cloak. He said, “I do not think he stole it” (so that the man would not confess and would withdraw his confession). The thief said, “O Messenger of Allah (peace and blessings be upon him), I truly did steal it.” He then said, “Take him, cut off his hand, and stop the bleeding.” This proves that the cost of stopping the bleeding is the responsibility of the government, not the thief. “Then bring him back to me.” His hand was cut off, and he was brought to the Messenger of Allah (peace and blessings be upon him). He said, “Repent to Allah.” The man said, “I have repented.” He said, “May Allah forgive you.”
Hanging the thief’s severed hand around his neck
To discipline the thief and warn others, Islamic law has ordered that the thief’s severed hand be hung around his neck. Abu Dawud, al-Nasa’i, and al-Tirmidhi reported that Abdullah ibn Muhayrib said: I asked Fudalah whether cutting off a thief’s hand and hanging it around his neck is Sunnah. He replied, “Yes. A thief was brought to the Messenger of Allah (peace and blessings be upon him). His hand was cut off, and then he ordered that the hand be hung around his neck.” (This was probably the case of a hardened thief.)
The necessity of both compensation and ḥudūd
When stolen property remains intact, it must be returned to its owner. For the Messenger of Allah (peace and blessings be upon him) said, “Whatever a thief has stolen must be returned to its owner.” This is the view of al-Shafi‘i and Ishaq. When the stolen property is destroyed or lost while in the thief’s possession, he must provide compensation for it, and his hand will also be cut off. Neither of these can prevent the other, because compensation is a right of people, whereas amputation is a right of Allah. Thus, neither can prevent the other, just as neither diyah nor kaffarah can prevent the other. According to Abu Hanifah, if stolen property is lost, the thief is not required to compensate for it; only his hand will be cut off. According to Imam Malik, if the thief is wealthy, he must pay compensation; otherwise, only his hand will be cut off.
Chapter Eighteen: Criminal Offenses (Murder and Injury)
Any act prohibited by the Shari‘ah because it is harmful to any of religion, life, intellect, honor, or property is a criminal offense. The jurists have divided these offenses into two categories: offenses subject to punishment or ḥadd, and offenses subject to qiṣāṣ. A detailed discussion of offenses subject to ḥadd has already been given. What remains is a discussion of offenses subject to qiṣāṣ. These are offenses that cause loss of human life or lesser injury or loss of a limb. They constitute fundamental rules concerning vital public interests, whose preservation and observance are essential for safeguarding the people and ensuring the security of their collective life.
In this connection, we shall first offer a few introductory remarks on Islam’s view of protecting human life. We shall also comparatively discuss qiṣāṣ in Islam and in the Age of Ignorance, followed by a discussion of qiṣāṣ for loss of life and qiṣāṣ for comparatively lesser injuries to the limbs. Under conventional law, those acts classified as criminal offenses are the most serious offenses. Under the penal code, their punishment is either the death penalty or imprisonment with hard labor.
Security of life
Human dignity
Almighty Allah created the human being as an honored creature. He created him with His own hands, breathed life into his body, caused the angels to prostrate before him, subjected all the creatures of the heavens and the earth to him, appointed him as His vicegerent, and granted him various powers and qualities so that he might establish his authority and power on earth and rise to the highest level of the material excellence and spiritual advancement assigned to him. It is not possible for a human being to fulfill all the purposes of his creation and reach his ultimate goal until all the means of advancement are in his possession and he has acquired all his rights. Islam has guaranteed the security of these rights. Among them are the right to live, the right to ownership, the right to protect one’s honor, and the right to live freely. Every person is inherently entitled to these rights as a human being, regardless of religion, race, nationality, country, or collective affiliation. Allah says:
وَلَقَدْ كَرَّمْنَا بَنِي آدَمَ وَحَمَلْتُهُمْ فِي الْبَرِّ وَالْبَحْرِ وَرَزَقْنَهُم مِّنَ الطَّيِّبَاتِ وَفَضَّلْتُهُمْ عَلَى كَثِيرٍ مِّمَّنْ خَلَقْنَا تَفْضِيلاً
Meaning: “We have honored the children of Adam, provided them with means of transportation on land and sea, supplied them with good things, and given them clear superiority over many of those We have created.” (Surah Bani Isra’il, verse 70)
At the Farewell Pilgrimage, the Messenger of Allah (peace and blessings be upon him) said: “O people, your lives and your property are sacred to one another, just as this city of yours, this day of yours, and your property are sacred… The life, property, and honor of every Muslim are sacred to another Muslim.”
The right to life
The right to life, or the right to live, is the foremost of these rights, the most important right, and such a pure and sacred right that it is not lawful for anyone to violate its sanctity. Allah says:
وَلَا تَقْتُلُوا النَّفْسَ الَّتِي حَرَّمَ اللَّهُ إِلَّا بِالْحَقِّ
“Do not kill the life which Allah has forbidden, except with due cause.” (Surah Isra, verse 33)
The valid or legitimate reasons for which taking a life is lawful were explained by the Messenger of Allah (peace and blessings be upon him) in the hadith narrated by Ibn Mas‘ud as follows: “It is not permissible to kill a Muslim who testifies that there is no deity except Allah and that I am His Messenger, except for three reasons: adultery while married, killing a person who has killed no one, and abandoning Islam, that is, becoming an apostate.” —Bukhari and Muslim.
Almighty Allah said:
وَلَا تَقْتُلُوا أَوْلَادُكُمْ خَشْيَةَ إِمْلَاقٍ مَا نَحْنُ نَرْزُقُهُمْ وَإِيَّاكُمْ ط إِنْ قَتْلَهُمْ كَانَ خَطَا كَبِيرًا
“Do not kill your children for fear of poverty. We provide for them and for you. Killing them is a grave sin.” (Surah Isra, verse 31)
Allah further says:
وَإِذَا الْمَوْعِدَةُ سُئِلَتْ بِأَيِّ ذَنْبٍ قُتِلَتْ
“And when the girl who was buried alive is asked for what sin she was killed.” (Surah al-Takwir, verses 8–9)
Almighty Allah has prepared such a severe punishment for the originator of the first murder as He has not prepared for any other of His creatures. The Messenger of Allah (peace and blessings be upon him) said: “Whenever any person is killed unjustly, a portion of the punishment for that crime will be imposed upon Adam’s son [Qabil], who was the first to kill [Habil] and set this precedent.” —Bukhari and Muslim.
One proof that Islam is exceedingly concerned and zealous about protecting human life is that it has threatened the one who considers the taking of human life lawful with the severest punishment. Allah says:
وَمَنْ يَقْتُلْ مُؤْمِنًا مُتَعَمِّدًا فَجَزَاؤُهُ جَهَنَّمُ خَلِدًا فِيهَا وَغَضِبَ اللَّهُ عَلَيْهِ وَلَعَنَهُ وَأَعَدَّ لَهُ عَذَابًا عَظِيمًا
Meaning: “Whoever intentionally kills a believer, his recompense is Hell, wherein he will remain forever. Allah is angry with him, has cursed him, and has prepared for him a tremendous punishment.” (Surah al-Nisa, verse 93)
It is established from this verse that in the Hereafter the punishment of a murderer is a painful torment, everlasting residence in Hell, Allah’s anger and curse, and a severe punishment. For this reason, Ibn ‘Abbas (may Allah be pleased with him) said that one who intentionally kills a believer has no opportunity for repentance, because this verse is among the last verses to be revealed. No later verse abrogated or amended it. However, most scholars do not support Ibn ‘Abbas’s view.
The Messenger of Allah (peace and blessings be upon him) said: “The destruction of the entire world is less significant to Allah than the unjust killing of a believer.” —Ibn Majah.
Al-Tirmidhi narrated from Abu Sa‘id (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “If all the creatures of the heavens and earth took part in the killing of one believer, Allah would cast them all into Hell.”
Al-Bayhaqi narrated from Ibn ‘Umar (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever assists in the killing of a Muslim, even by uttering half a word, will have written between his eyes on the Day of Resurrection: ‘Despairing, deprived of Allah’s mercy.’” Murder is tantamount to destroying what Allah wishes to build: an assault aimed at taking the life of the victim, and an aggression against those relatives who take pride in him and benefit from him, and who are left helpless by his loss. This prohibition encompasses all killings, including the killing of Muslims, the killing of non-Muslims, and suicide. There are several clear hadiths concerning the killing of non-Muslims, in which Hell is declared inevitable for the killer. Bukhari narrated from ‘Abdullah ibn ‘Amr ibn al-‘As that the Messenger of Allah (peace and blessings be upon him) said: “Whoever kills a non-Muslim citizen under covenant will not smell the fragrance of Paradise, although its fragrance can be perceived from a distance of forty years.” (A non-Muslim under covenant is one who is granted security and protection by a Muslim citizen, or who lives in a Muslim country under a peace treaty with the Muslim ruler, or who has citizenship under an agreement to pay jizyah. The statement “will not smell the fragrance of Paradise” means that he will not enter Paradise.)
Regarding suicide, Allah Himself has issued the following warning:
وَلَا تُلْقُوا بِأَيْدِيكُمْ إِلَى التَّمْلَكَةِ
“Do not cast yourselves into destruction with your own hands.” (Al-Baqarah, 195)
Allah further says:
وَلَا تَقْتُلُوا أَنْفُسَكُمْ ، إِنَّ اللَّهَ كَانَ بِكُمْ رَحِيمًا
“Do not kill yourselves. Indeed, Allah is ever Merciful to you.” (Al-Nisa, 29)
Bukhari and Muslim narrated from Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever throws himself down from a mountain and kills himself will remain in the Fire of Hell forever, continually falling from above to below. Whoever kills himself by drinking poison will remain forever in the Fire of Hell, continually drinking poison in his hand. And whoever kills himself with an iron weapon will remain forever in the Fire of Hell, striking himself with that iron weapon in his hand.”
Bukhari also narrated from Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever kills himself by strangling will continue strangling himself in Hell; whoever stabs himself will continue stabbing himself in Hell; and whoever throws himself down will continue throwing himself down in Hell.”
Bukhari narrated from Jundub ibn ‘Abdullah that the Messenger of Allah (peace and blessings be upon him) said: “Among those before you was a man whose body had a wound. He became distressed by its pain, so he took a knife and cut his hand. The bleeding did not stop until he died. Allah said: ‘My servant sought to outdo Me concerning himself, so I have forbidden Paradise to him.’”
It is also stated in a hadith: “Whoever kills himself with something will be repeatedly killed with that same thing on the Day of Resurrection.” In addition to everything previously said in condemnation of murderers, the strongest denunciation is that Islam regards the killer of one individual as the killer of all humanity. No greater condemnation of this heinous crime can be imagined. Allah says:
أَنَّهُ مَنْ قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا ط
Meaning: “Whoever kills a person—unless in retribution for murder or for spreading corruption in the land—it is as though he has killed all mankind; and whoever saves a life, it is as though he has saved the lives of all mankind.” (Al-Ma’idah, verse 32)
Because of the importance of human life and the horror of bloodshed, murder is the offense whose judgment will be carried out first on the Day of Resurrection.” (Muslim) In view of this importance, Allah established qiṣāṣ and prescribed the death penalty for the murderer, in order to exact retribution from the killer, warn those who have not yet become involved in this crime, and purify society of offenses that disrupt social order and undermine public security. He said:
وَلَكُمْ فِي الْقِصَاصِ حَيَوةٌ يَأْولِي الْأَلْبَابِ لَعَلَّكُمْ تَتَّقُونَ
Meaning: “O people of understanding, there is life for you in qiṣāṣ, so that you may be mindful.” (Al-Baqarah, verse 179)
This punishment had already been prescribed in all the Shari‘ahs sent by Allah. The relevant ruling in the Shari‘ah of Musa (peace be upon him) is described in the twenty-first chapter of the Torah as follows:
“Whoever strikes a person and the person dies as a result of the blow must be put to death. When anyone attacks another person and kills him, he must be put to death. Whoever kills his father or mother must be put to death. If anyone merely causes injury, then [if the injured person dies] punish with life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, wound for wound, and fracture for fracture.”
Some people believe that, in the Shari‘ah of Isa (peace be upon him), killing the murderer was not among its fundamental principles. They cite the following statement of Isa (peace be upon him), quoted in the Gospel of Matthew, as proof:
“Do not resist wrongdoing. Rather, whoever slaps you on your right cheek, turn your left cheek toward him as well. Whoever wishes to quarrel with you and takes your garment, give him your cloak too. Whoever goes one mile with you while mocking you, go with him for two miles.”
Others believe that the death penalty exists in the Shari‘ah of Isa (peace be upon him). In this regard, they cite his following statement as proof:
“I have not come to abolish the revelation. I have come only to complete it.” This view is supported by the following statement of the Qur’an: “I have come as a confirmation of the Torah that is before me.”
Indeed, verse 45 of Surah al-Ma’idah points in this direction:
وَكَتَبْنَا عَلَيْهِمْ فِيهَا أَنَّ النَّفْسَ بِالنَّفْسِ لا وَالْعَيْنَ بِالْعَيْنِ وَالْأَنْفَ بِالْأَنْفِ وَالْأُذُنَ بِالْأُذُنِ وَالسِّن بِالسِّنِ لا وَالْجُرُوحَ قِصَاصِ6
Meaning: “We prescribed for them therein [in the Torah]: life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and equal retribution for all wounds.”
The Shari‘ah makes no distinction between people. Taking a life for a life is a right, whether the victim belongs to the noble or lower class, and whether male or female, because everyone has the right to live. No one’s life may be interfered with in a way that destroys it, whatever the manner. Even in the case of accidental killing, Allah did not absolve the killer of responsibility; rather, He made it obligatory upon him to free a slave and pay diyah. Allah says:
وَمَا كَانَ لِمُؤْمِنٍ أَن يَقْتُلْ مُؤْمِنًا إِلَّا خَطَا وَمَنْ قَتَلَ مُؤْمِنًا خَطَأَ فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ إِلَّا أَن يُصَدِّقُواط
Meaning: “It is not for a believer to kill a believer except by mistake. Whoever kills a believer by mistake must free a believing slave and pay diyah to the victim’s family, unless they remit it.” (Surah al-Ma’idah, verse 45)
Islam imposed this financial penalty in cases of accidental killing out of respect for human life, so that no one would regard this offense as insignificant, so that people would exercise the utmost caution regarding taking life and shedding blood, so that the way to disorder would be blocked, and so that one person could not kill another and escape by claiming, “I killed him by mistake.” As proof of how strictly Islam safeguards human life, it is sufficient that it has prohibited abortion after life has been breathed into the child’s body. However, if there is a genuine reason that makes abortion unavoidable, such as fear for the mother’s life, then abortion is permissible only in that case.
Qiṣāṣ in Islam and in the Age of Ignorance
In the pre-Islamic Age of Ignorance, the practice of qiṣāṣ (killing the murderer) did exist among the Arabs. However, it was based on the principle that if one person from a tribe committed a murder, the entire tribe was held responsible for that crime. The only exception was when the tribe disowned that person and publicly announced it in all social gatherings. Therefore, the guardian of the slain would demand qiṣāṣ from the murderer and the other members of his tribe. This demand sometimes became so extensive that it ignited the fire of war between the tribes of the killer and the slain.
If the slain person was a nobleman or tribal chief, the matter was even more serious. The demand for qiṣāṣ became broader still. On the other hand, some tribes rejected and ignored such demands for qiṣāṣ and supported and protected the murderer, paying no attention to the demands of the slain person’s heirs. As a result, wars broke out and many innocent people were killed. Islam abolished this unjust system and declared that only the offender himself was responsible for the crime he committed. He alone must be held accountable for his sin. Allah says:
يَأَيُّهَا الَّذِينَ آمَنُوا كُتِبَ عَلَيْكُمُ الْقِصَاصُ فِي الْقَتْلَى ، اَلْعُرْ بِالْحَرِّ وَالْعَبْدُ بِالْعَبْدِ وَالأنْثَى بِالْأُنثى، فَمَنْ عُفِى لَهُ مِنْ أَخِيهِ شَيْ ءٍ فَإِتِّبَاعَ بِالْمَعْرُوفِ وَأَدَاء إِلَيْهِ بِإِحْسَانٍ ، ذَلِكَ تَخْفِيفٌ مِنْ رَّبِّكُمْ وَرَحْمَةٌ ، فَمَنِ اعْتَدَى بَعْدَ ذَلِكَ فَلَهُ عَذَابٌ اليره وَلَكُمْ فِي الْقِصَاصِ حَيوة يأولِي الْأَلْبَابِ لَعَلَّكُمْ تَتَّقُونَ
Meaning: “O believers, qiṣāṣ has been prescribed for you concerning those killed: a free person for a free person, a slave for a slave, and a woman for a woman. But if the victim’s brother grants some pardon, then the prescribed procedure should be followed and payment should be made to him with fairness. This is a relief and mercy from your Lord. Whoever transgresses after that will have a painful punishment. O people of understanding, there is life for you in qiṣāṣ, so that you may be mindful.” (Surah al-Baqarah, verse 178)
When qiṣāṣ becomes the sole demand instead of forgiveness:
In his commentary on the above verse, al-Bayhaqi said: “In the Age of Ignorance, the tendency toward murder and retaliation continued between two Arab tribes. When one of two such tribes was stronger than the other, it would swear: ‘In retaliation for the killing of a slave, we will kill your free man, and in exchange for the killing of a woman, we will kill a man.’ After the advent of Islam, when they appealed to the Messenger of Allah (peace and blessings be upon him) for justice in this matter, the above verse was revealed, and he ordered them to release one another from their oaths.”
The purport of this verse is:
1. Almighty Allah abolished the customs of the Age of Ignorance and made equality obligatory in retaliation for murder. Thus, when people give preference to retaliation, that is, qiṣāṣ, over forgiveness and demand its implementation, if a free person has killed another free person, the killer who is free will be killed; likewise, in retaliation for the killing of a slave, the killer slave will be killed, and in retaliation for the killing of a woman, the killer woman will be killed.
2. When the heir of the slain forgives the offender, he retains the right to demand diyah (blood money). However, the demand must be just, and it must be ensured that no violence or cruelty is mixed with it. The murderer, for his part, should immediately pay diyah to the one who forgave him, without delay or shortchanging.
3. It is permissible to implement this rule established by Allah, namely qiṣāṣ, and it is also permissible to waive it and accept diyah. This is a great concession and mercy from Allah, for He has allowed the choice of either of the two and has not made either one obligatory.
4. Whoever kills an offender after forgiving him, in transgression, will face a painful punishment. This painful punishment may be suffered in this world in the form of the death penalty, or in the Hereafter in the form of the torment of Hell.
Bukhari narrated from Ibn ‘Abbas: “Among the Children of Israel, qiṣāṣ was prescribed, but diyah was not. Therefore Allah granted this community the option of diyah. He said: ‘Qiṣāṣ has been prescribed for you concerning the slain; whoever is granted some pardon by his brother should follow the prescribed procedure and pay the due amount with fairness.’” … In fact, pardon means accepting diyah in cases of intentional killing.
“This is a relief and mercy from your Lord.” That is, compared with the nations of the past, this is a relief and mercy.
5. Allah established qiṣāṣ because it ensures the preservation and stability of human life. When a murderer knows that if he kills, he too will be killed, he will fear and restrain himself. Through this restraint, he will save his own life on the one hand and the life of the person he intended to kill on the other.
6. Islam retained the right, which the guardian of the slain had before the advent of Islam, to demand qiṣāṣ or punishment for murder. Allah says:
وَمَنْ قُتِلَ مَظْلُومًا فَقَدْ جَعَلْنَا لِوَلِيّه سُلْطنًا فَلَا يُسْرِفْ فِي الْقَتْلِ طَ إِنَّهُ كَانَ مَنْصُورًا
“When anyone is killed unjustly, We have given his heir the authority to seek redress. But he must not exceed the limits in killing. He has already been helped.” In this verse, “heir” means the heir of the slain person, who has the right to demand retaliation for the killing. In fact, the right to demand retaliation or punishment belongs exclusively to him, not to the ruler or government. If he does not demand qisas, qisas may not be taken from the offender. The authority to seek redress means authority over the killer. This authority was granted to him so that no one may pardon the killer against his wishes, for he is the one harmed by the crime. Naturally, therefore, his heart will be aggrieved, he will wish to take revenge, and killing and crime will recur.
7. In explaining this verse, the author of Tafsir al-Manar said: “This verse shows that the primary objective is to guarantee and safeguard life. Qisas is one of several means of achieving this. For whoever knows that if he kills someone, he will inevitably be killed in return will refrain from killing. Thus, he will preserve both his own life and the life of the person he intended to kill. Diyah alone cannot deter everyone from shedding an enemy’s blood. If the option of paying blood money exists, a person may kill his enemy according to his means, for there is no shortage in society of people willing to spend considerable sums to eliminate an enemy. The wording of the verse is also so beautiful and compelling that it removes the notion that taking the offender’s life as punishment is an evil and barbaric act, and encourages people to accept the principle of equality. For here qisas is not called killing or the death penalty; rather, it is described as equality among people, which makes their lives secure and happy.”
Qisas for Homicide
Not every fatal attack makes its perpetrator liable to qisas. The attack may be intentional, unintentional or accidental, or of an intermediate kind between the two, or of some other kind. It is therefore necessary to explain the kinds of homicide and analyze in which kinds qisas becomes obligatory.
Types of Homicide
Homicide is of three types:
1. Intentional homicide,
2. Quasi-intentional homicide,
3. Unintentional homicide
Intentional homicide: When an adult, sane person voluntarily kills an innocent person by a means that is generally believed to be effective for killing, this is called intentional homicide. This definition shows that the crime of intentional killing is not committed unless the following elements are present:
1. The killer must be sane, an adult, and willing to kill. That sanity and adulthood are essential is proven by the following hadith narrated by Ali (may Allah be pleased with him): The Messenger of Allah (peace and blessings be upon him) said, “Three persons have been exempted from all responsibility: the insane until he regains sanity, the sleeping person until he awakens, and the minor child until he reaches adulthood.” —Ahmad, Abu Dawud, and al-Tirmidhi.
The intentional nature of the killing is proven by the following hadith. Abu Hurayrah (may Allah be pleased with him) said: “During the lifetime of the Messenger of Allah (peace and blessings be upon him), one man killed another. The matter was reported to the Messenger of Allah (peace and blessings be upon him), and he handed the killer over to the heir of the slain man. The killer said, ‘O Messenger of Allah, I did not intend to kill him.’ The Messenger of Allah (peace and blessings be upon him) then said to the heir, ‘If what the killer says is true and you nevertheless kill him, you will be among the people of Hell.’ Upon hearing this, the heir released him.” —Abu Dawud, al-Nasa’i, Ibn Majah, and al-Tirmidhi.
Abu Dawud narrated that the Messenger of Allah (peace and blessings be upon him) said: “If the heir of the slain person does not pardon him, the punishment for intentional killing is execution.” Ibn Majah narrated that the Messenger of Allah (peace and blessings be upon him) said: “The punishment for anyone who intentionally kills another is execution. Whoever intervenes between the killer and the slain person (that is, obstructs the judicial process) will incur the curse of Allah, the angels, and all people. On the Day of Resurrection, Allah will accept from him neither compensation nor ransom.”
2. The slain person must be a human being and innocent; that is, killing him must be unlawful.
3. The weapon used for the killing must be one that is ordinarily used to kill.
If these three elements are absent, the homicide will not be considered intentional homicide.
Means or weapons of killing: It is sufficient that the thing used to kill be something that is ordinarily used to cause death, whether it is sharp or crushing. Both are equally capable of taking life. al-Bukhari and Muslim narrated that the Messenger of Allah (peace and blessings be upon him) crushed the head of a Jew between two stones.” This hadith refutes the view of Abu Hanifah, al-Sha’bi, and al-Nakha’i that qisas does not apply when someone is killed with a heavy object. Burning with fire, drowning or submerging in water, throwing someone from a height, crushing someone beneath a collapsed wall, strangling, detaining someone and withholding food and drink until he dies, and throwing someone before a wild beast are likewise included. Qisas applies in all these cases. Similarly, causing an innocent person to be killed through false testimony, then withdrawing the testimony after having caused his death and saying, “We intended to kill him,” are all means ordinarily capable of causing death. If someone feeds another person food mixed with poison—knowing that it contains poison while the person eating it does not—and the person dies after eating it, qisas will be carried out against the one who served the food.
al-Bukhari and Muslim narrated that a Jewish woman mixed poison into the meat of a sheep and served it to the Messenger of Allah (peace and blessings be upon him). He took one bite and then spat it out. Bishr ibn al-Bara (may Allah be pleased with him), however, ate it with him. At first, the Messenger of Allah (peace and blessings be upon him) pardoned the woman without punishing her—that is, he pardoned her until one of those who had eaten it died. But as soon as Bishr ibn al-Bara died, he had the Jewish woman killed in retaliation. According to the narration of Abu Dawud, he ordered that she be killed.”
Quasi-intentional homicide: When an adult, sane person kills an innocent person by a means not ordinarily used to kill—for example, striking him once or twice with a light stick or a small stone, causing his death—the homicide is called quasi-intentional. (This is the view of Abu Hanifah, al-Shafi’i, and the majority of jurists. Imam Malik and al-Layth held the opposite view. According to the latter jurists, if a homicide is committed with a means or weapon not ordinarily used for killing, such as a stick, whip, slap, or the like, it is still considered intentional homicide and qisas applies. In principle, they do not give importance to the means or weapon used to take life; they give importance to the taking of life itself. In their view, killing by any means or with any weapon makes one liable to qisas.) If someone is taken to a particular place and beaten in order to kill him, or if the beaten person is so young or ill that such beating ordinarily causes death, or if a healthy, strong person is killed by continuous beating, then it is considered intentional homicide. It is called quasi-intentional because there is doubt and uncertainty as to whether the killing was intentional or unintentional. The purpose here was to beat, not to kill. It is therefore called quasi-intentional: it is neither wholly intentional nor wholly unintentional. Since it is not wholly intentional, qisas is waived, for the basic principle is preservation of life. Thus qisas may not lawfully be carried out against anyone without a clear justification.
On the other hand, since it is not wholly unintentional—the actual purpose was to beat, not to kill—strict diyah must be paid. Ibn Abbas (may Allah be pleased with him) narrated from al-Daraqutni that the Messenger of Allah (peace and blessings be upon him) said: “Qisas is mandatory in intentional killing. Unintentional killing is an offense for which there is no qisas. If a person dies from a blow with a stone, stick, or whip, strict diyah consisting of mature camels is obligatory.” Ahmad and Abu Dawud narrated that the Messenger of Allah (peace and blessings be upon him) said: “Strict diyah is due for quasi-intentional killing, and the killer is not to be killed, because Satan incites people, resulting in bloodshed without hatred, malice, or the carrying of weapons.” Ahmad, Abu Dawud, and al-Nasa’i narrated that the Messenger of Allah (peace and blessings be upon him) said on the day of the Conquest of Makkah: “Know that whoever is killed by a blow with a whip, stick, or stone has been killed quasi-unintentionally.”
Unintentional killing: Unintentional killing occurs when an adult, sane person does something lawful for him—for example, hunts or performs some other lawful act—but, in doing so, an innocent person is injured and later dies; or when a well is dug and someone falls into it and dies; or when a trap is set in a prohibited place and someone becomes caught in it and dies. An intentional killing committed by a minor or an insane person is considered unintentional killing.
Consequences of Homicide
We have stated that homicide is of three types: intentional, unintentional, and quasi-intentional. Each of these three types has distinct consequences and results. The consequences of each are given below:
Consequences of unintentional homicide: Unintentional homicide inevitably entails two consequences:
(1) A relatively lighter diyah, which may be paid over three years. A detailed explanation will be given in the discussion of diyah.
(2) Kaffarah, that is, freeing a believing slave free from defects that impair his ability to work and earn. If one is unable to do this, one must fast for two consecutive months.
The Exalted Allah says:
وَمَا كَانَ لِمُؤْمِن أَن يَقْتُلْ مُؤْمِنًا إِلَّا خَطَا وَمَنْ قَتَلَ مُؤْمِنًا خَطَأَ فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ إِلَّا أَن يُصَدِّقُوا مَا فَإِنْ كَانَ مِنْ قَوْمٍ عَدُوٌّ لَكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ ، وَإِنْ كَانَ مِنْ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُم مِيثَاقَ فَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِها وَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ، فَمَنْ لَمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ رَتَوْبَةً مِّنَ اللَّهِ ، وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا
Meaning: “It is not for a believer to kill another believer except by mistake. Whoever kills a believer by mistake must free a believing slave and pay blood money to his family, unless they remit it. If the slain believer belonged to a people at war with you, then freeing a believing slave is required. But if he belonged to a people with whom you have a treaty, then blood money must be paid to his family and a believing slave must be freed. Whoever cannot find one must fast for two consecutive months, as repentance ordained by Allah. Allah is All-Knowing, All-Wise.” (Surah al-Nisa, verse 92)
(According to al-Shafi’i’s school, if the person responsible for the kaffarah of killing is unable to fast because of old age, illness, or arduous labor, it is permissible for him to feed sixty poor people. Feeding each of them one meal is sufficient. Other jurists opposed the Shafi’i school on this matter because there is no evidence supporting their view.) When a group accidentally kills one person, the majority of scholars hold that each individual must offer a complete kaffarah separately. Another group of jurists says that one kaffarah offered collectively is sufficient.
Purpose of kaffarah: al-Qurtubi said: Some have said that this kaffarah was made obligatory to expiate the killer’s sin. His sin was that he failed to take appropriate precautions, resulting in the death of an innocent person at his hands. Others have said that kaffarah was made obligatory as compensation for nullifying the rights owed by the slain person to Allah. The right owed by the slain person to Allah was that he remain alive and enjoy what Allah had made lawful for him. The killer also owed a right to Allah: he was one of Allah’s servants. Whether young or old, free or enslaved, Muslim or non-Muslim, as a servant he was expected to possess qualities distinguishing him from animals, and it was hoped that obedient people who would follow Allah’s commands would be born among his descendants. The killer nullified both these rights. That is why kaffarah was imposed upon him. Whichever of these two rights is considered, it is clearly established that although the verse applies to the killer in an accidental killing, the intentional killer also falls under the same ruling. Indeed, it is even more reasonable that kaffarah should be obligatory upon the intentional killer. A detailed explanation follows.
Consequences of quasi-intentional homicide: Quasi-intentional homicide inevitably entails two consequences:
1. Sin, because it is the taking of a life that Allah has prohibited killing without a lawful justification.
2. The full blood money, or diyah, imposed upon the killer, whose details will be discussed later.
Consequences of intentional homicide: Intentional homicide inevitably has four consequences:
1. Sin.
2. The killer’s exclusion from the slain person’s bequest and inheritance.
3. Kaffarah.
4. Pardon or qisas.
Thus, if the killer is an heir of the slain person, he will receive nothing from the estate left by the deceased—not from the deceased’s own property nor from the diyah—whether the homicide was intentional or quasi-intentional. The principle followed by the jurists in this matter is:
“Whoever hastens to obtain something before its appointed time is punished by being deprived of it.” al-Bayhaqi narrated that a man threw a stone, which struck his mother and killed her. When he then claimed his share of his mother’s estate, his brothers said, “You have no right to anything.” They went to Ali (may Allah be pleased with him) for a ruling. Ali said, “From your mother’s estate, you are entitled only to that stone.” He then imposed diyah upon him as a fine and gave him nothing from the inheritance. Amr ibn Shu’ayb narrated that the Messenger of Allah (peace and blessings be upon him) said: “The killer has no claim to anything from the estate of the slain.”
Abu Dawud, al-Nasa’i, and Ibn Majah narrated that the Messenger of Allah (peace and blessings be upon him) said: “The killer will receive nothing. If the slain person has no other heir, his nearest relative will inherit from him. The killer will receive nothing.” (That is, the killer will be excluded from the inheritance, and those who were not involved in the crime will inherit. Even if the slain person has no heir other than the killer, the inheritance will be distributed among his nearest relatives, excluding the killer. For example, a son kills his father, and the slain father has no heir other than the killer, but the killer has a son. In this case, the slain man’s inheritance will go to the killer’s son, while the killer himself remains excluded. —Ma’alim al-Sunan, al-Khattabi) This is the view of the majority of scholars, including the Hanafi and Shafi’i schools. Imam Malik and the Hadawi school, however, held that the killer receives a share of the estate but not of the diyah. al-Zuhri, Sa’id ibn Jubayr, and others said that the killer is not excluded from the inheritance.
Likewise, if the beneficiary of a bequest kills the person who made the bequest, the bequest is considered void. The book Bada’i states: “Killing without cause is a terrible crime deserving the strongest condemnation. Exclusion from a bequest, like exclusion from inheritance, is an appropriate condemnation. Whether the killing is intentional, accidental, or unintentional, condemnation and reproach are unavoidable. For accidental or unintentional killing is still killing, and bringing a complaint against the killer and demanding judgment is legitimately valid, whether the slain person made the bequest in favor of the killer before or after the killing.”
Kaffarah when the heir of the slain person pardons or accepts diyah: When qisas is carried out against the killer, kaffarah is no longer obligatory upon him.
Imam Ahmad narrated from Wasila ibn al-Asqa: A group of people from the Banu Sulaym came to the Messenger of Allah (peace and blessings be upon him) and said, “A man from our tribe has killed someone and thereby made Hell obligatory for himself.” The Messenger of Allah (peace and blessings be upon him) said, “Then let him free a slave. Allah will thereby spare every one of his limbs from Hell in exchange for each limb of the freed slave.” This hadith was also narrated by Abu Dawud and al-Nasa’i with slight variations in wording.
al-Shawkani said in Nayl al-Awtar: “The hadith of Wasila establishes the ruling of kaffarah for intentional homicide. However, this applies only when the heir of the slain person pardons the killer or agrees to accept diyah. If qisas is carried out against him, he need not offer kaffarah; rather, qisas itself is his kaffarah. The Messenger of Allah (peace and blessings be upon him) said, ‘Killing—that is, qisas—is kaffarah.’”
Qisas or pardon: Qisas, pardon in exchange for diyah, and settlement without diyah are all permissible. Even if something greater than the diyah is given in exchange for the settlement, that too is permissible. The heir of the slain person has the right to pardon entirely without compensation, and that is the best course. Allah says:
وَإِنْ تَعْفُوا أَقْرَبُ لِلتَّقْوى وَلَا تَنْسَوا الْفَضْلَ بَيْنَكُمْ
Meaning: “If you pardon, that is nearer to taqwa. Do not forget graciousness among yourselves.” (Al-Baqarah, verse 230)
When the heir of the slain person pardons the killer, the ruler no longer has the right to impose any ta’zir upon him. Imam Malik and al-Layth, however, said that he should receive one year’s imprisonment and one hundred lashes as ta’zir. (The jurists say that if the killer is a habitual criminal or notorious evildoer, or if it appears to the ruler that punishing him serves the public interest, he may punish him in whatever manner appears to serve that interest, whether by imprisonment or execution.)
The source of the ruling concerning qisas or pardon is verse 187 of Surah al-Baqarah:
“O believers, qisas has been prescribed for you concerning those killed: the free for the free, the slave for the slave, and the woman for the woman. But if some pardon is granted by the brother of the slain, then adherence to the proper procedure and payment to him with good conduct are required. This is a concession and mercy from your Lord. Whoever transgresses after that will have a painful punishment.”
al-Bukhari and Muslim narrated from Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever has a relative killed may either take blood money or kill the killer.” This hadith proves that the heir of the slain person has the choice either to carry out qisas or to accept diyah, whether the killer agrees or not. Some say that he has no right to obtain anything other than qisas and may not take diyah from anything except the killer’s property. The first view, however, is correct. Thus, the heirs of the slain person alone have the right to decide whether to choose pardon or qisas. They may demand qisas or pardon. Even if one heir pardons, qisas is waived, because qisas cannot be divided. Muhammad ibn al-Hasan, a disciple of Imam Abu Hanifah, narrated that a man who had intentionally killed someone was brought to Umar ibn al-Khattab (may Allah be pleased with him). Umar ordered that he be killed. In the meantime, some of the heirs pardoned him. Nevertheless, Umar ordered his execution. Abdullah ibn Masud (may Allah be pleased with him) then said: “All of them had the right to take the killer’s life in place of the slain person’s life. But when one of them pardoned him, he saved him. The one who did not pardon him, however, cannot deprive him of his right.” Umar said, “What do you think should be done, then?” He replied, “I think diyah should be paid from the killer’s property, and the one who pardoned the killer should be released from his share of the diyah.” Umar said, “I think so too.” Muhammad said, “I also consider this correct, and it is the view of Imam Abu Hanifah.”
If one of the heirs is a minor, waiting will continue until he reaches adulthood so that he may exercise his authority independently, because qisas is the right of all the heirs. A minor has no authority before reaching adulthood. When all the heirs, or some of them, pardon the killer in exchange for diyah, the killer must pay the full diyah from his own property.
Conditions for Qisas to Become Obligatory
Qisas does not become obligatory until the following conditions are fulfilled:
1. The slain person must not have been guilty of an offense for which he deserved to be killed. If he was a hostile unbeliever, a married adulterer, or an apostate, the killer is not required to provide any compensation—neither qisas nor diyah—for it is lawful to kill all such persons. al-Bukhari and Muslim narrated from Ibn Masud (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “It is not lawful to kill a Muslim who testifies that there is no deity but Allah and that I am the Messenger of Allah except for one of three reasons:”
1. Committing adultery while married, killing someone, and abandoning Islam and separating from the community of Muslims.
2. The killer must be an adult.
3. The killer must be sane.
Therefore, qisas will not be carried out against a minor, an insane person, or a mentally incapacitated person. They are not charged with observing the rulings of the Shariah, nor do they possess sound judgment or free will. However, if an insane person sometimes regains sanity and kills someone while sane and normal, qisas will be carried out against him. Likewise, if a person loses his reason and judgment by drinking an excessive amount of alcohol and kills someone, qisas will also be carried out against him. It is narrated from Malik that Marwan ibn al-Hakam wrote to Mu’awiyah informing him that a drunken man who had killed someone had been brought to him. Mu’awiyah replied in writing, “Kill him in retaliation for that killing.” But if someone drinks a beverage that he believed would not intoxicate him, yet it causes him to lose his reason and he commits a killing in that state, qisas will not be carried out against him. For an earlier hadith exempted three persons from liability, one of whom is the insane person until he regains sanity.
Malik said: The unanimous view among us is that qiṣāṣ is not carried out against children, and that until a child reaches maturity, a killing committed by him is considered an unintentional or accidental killing.
4. The killer must have committed the killing entirely voluntarily and freely. Coercion eliminates the power of independent judgment, and one who lacks independent judgment bears no responsibility. Thus, when a powerful person forces someone to kill another person, and he unjustly kills someone, the one who gave the order will be killed, not the one who was ordered to do it. However, the latter will also be punished. This is the view of Abu Hanifa, Dawud, and al-Shafi‘i. The Hanafis say that if someone is compelled, at the command of a person whose command cannot be disobeyed without fear of death or loss of a limb, to destroy a Muslim’s property, it is permissible for him to do so. However, the owner of the property may compel the coercer to compensate him for the loss. If someone is compelled, under threat of being killed, to kill another person, it is not permissible for him to carry out the killing. He must remain patient until he himself is killed. If he does carry out the killing, he will be sinful. If the killing was intentional, qiṣāṣ will be carried out against the coercer. Some say that the person who was ordered to do it will be killed, not the one who gave the order. This is also another view of Imam al-Shafi‘i. Imam Malik and a group including the Hanbali imams say that both will be killed unless the heir forgives; if he forgives, diyah becomes obligatory. The killer sought to kill the other person in order to save himself, while the coercer became the cause of the killing through a means that generally results in death. When a sane adult orders a madman or a child to kill another person, qiṣāṣ will be carried out against the one who gave the order, because the killer was merely a puppet in his hands. Thus qiṣāṣ will not be carried out against the killer; it will be carried out against the person who ordered the killing. When a ruler orders an unjust killing, it must be determined whether the person ordered to carry it out knows that the order is unjust and oppressive. If he carries it out while knowing that it is oppressive, qiṣāṣ will be carried out against him, unless the slain person’s heir forgives him; in that case, diyah will be obligatory. He knowingly committed an unjust and oppressive killing, so he will not be absolved of responsibility. It cannot be argued that he was ordered to do it by the ruler, for the principle of Islam is: “There is no obedience to the created in disobedience to the Creator.” The Messenger of Allah himself proclaimed this. If the killer does not know that the slain person was not liable to be killed and kills him in accordance with the order, then qiṣāṣ will be carried out against the person who gave the order if the heir does not forgive, and diyah will be imposed on him if the heir forgives—not on the killer—because he is absolved of responsibility for obeying the ruler in an act involving disobedience to Allah. If someone gives a weapon of killing to a minor or an unsound-minded person, without ordering him to kill, and the person nevertheless kills someone, no liability will fall on the one who gave him the weapon.
5. The killer must not be the father or grandfather of the slain person. Thus, a father will not be killed for killing his child, nor a grandfather for killing his grandchild, regardless of the form of intentional killing. Conversely, if a child kills his mother or father, he will be killed by unanimous agreement. Al-Tirmidhi narrated from Ibn Umar that the Messenger of Allah said: “A father will not be killed for killing his child.” Yahya ibn Sa‘id narrated that a man named Qatadah of Banu Mudallaj struck and wounded his son with a sword, and the son later died from bleeding from the wound. When Suraqah ibn Jusham went to Umar and informed him of the incident, Umar said to him, “Prepare one hundred and twenty camels; I am coming.” He then came, took one hundred of those one hundred and twenty camels, and said, “Where is the slain man’s brother?” He replied, “Here I am.” Umar said, “Take these, for the Messenger of Allah said that the killer is entitled to nothing.” Imam Malik opposed this view and said that when a father lays his child down and slaughters him, qiṣāṣ must certainly be carried out against him, because this is truly intentional killing and could not be anything else. Whether a killing was intentional is a hidden matter. Nothing can be established with certainty except what is revealed by the circumstances and situation. If, however, the killing occurred in a manner that suggests the intention may not have been to take a life, but rather to discipline, then, in the case of anyone other than a child, it will be considered intentional killing. The reason for distinguishing between a father and others is that it is natural for a father to have affection and compassion for his child. Thus, when the child does something that provokes the father’s anger, the father may intend to discipline him. Therefore, the incident will not be considered intentional killing, because the bond of affection between father and son is extremely strong.
6. At the time of the killing, the killer and the slain person must be equal with respect to religion and personal freedom. Thus, if a Muslim kills a disbeliever, qiṣāṣ will not be carried out against that Muslim. Likewise, if a free person kills a slave, qiṣāṣ will not be carried out against the free person, because there is no equality between the killer and the slain. Conversely, if a disbeliever kills a Muslim or a slave kills a free person, qiṣāṣ will be carried out against the killer. Islam makes no distinction among Muslims in this regard. It recognizes no distinction among Muslims based on high or low lineage, beauty or ugliness, wealth or poverty, height or shortness, strength or weakness, health or illness, bodily completeness or deficiency, youth or age, or whether one is male or female. However, it recognizes a distinction between Muslims and disbelievers and between slaves and free persons. These two classes are not treated as equal regarding the punishment for killing. Therefore, if a Muslim kills a disbeliever or a free person kills a slave, qiṣāṣ will not be carried out against the killer. The basis of this ruling is the hadith narrated by Ali: The Messenger of Allah said, “Know that no believer will be killed in retaliation for a disbeliever.” —Ahmad, Abu Dawud, al-Nasa’i, and al-Hakim.
Al-Bukhari also narrated from Ali that Abu Juhayfah asked Ali: “Do you have any revelation that is not in the Qur’an?” He replied: “No. By Allah, the Most Exalted Creator, I have nothing except the understanding of the Qur’an that Allah grants to a person and what is contained in this document.” Abu Juhayfah asked: “What is in that document?” He replied: “Equality in retaliation and diyah for the lives of believers, the release of a captive, and that no Muslim is to be killed in retaliation for a disbeliever.”
The disbeliever referred to here is one who is hostile to the Muslims. If a Muslim kills him, the Muslim may not be killed as punishment. This is the unanimous view, or ijma‘. However, the jurists differ regarding non-Muslim citizens who have a treaty with and are loyal to the Muslim state. According to most jurists, a Muslim is not to be killed in retaliation for either of these two classes of non-Muslims, because many sound hadiths support this and there is nothing to contradict them.
However, the Hanafi jurists and Ibn Abi Layla said: “When a Muslim kills a disbeliever who is at war, he is not to be killed. They hold a different view regarding a disbeliever bound by a treaty and a protected disbeliever. They say that if someone kills a treaty-bound or protected (dhimmi) disbeliever without a valid reason, he will be killed, because Allah said:
وَكَتَبْنَا عَلَيْهِمْ فِيهَا أَنَّ النَّفْسَ بِالنَّفْسِ
“We prescribed for them therein: a life for a life….” This statement of Allah applies to everyone, Muslims and disbelievers alike. Al-Bayhaqi narrated that the Messenger of Allah had a Muslim killed in retaliation for a treaty-bound non-Muslim and said: “I honor the one who honors his treaty.”
The jurists further said that the Muslims agreed that if a Muslim steals the property of a treaty-bound non-Muslim citizen, the Muslim’s hand will be cut off. Therefore, just as the property of a non-Muslim citizen is inviolable and worthy of respect, like the property of a Muslim citizen, so too is his life inviolable and worthy of respect, like the life of a Muslim citizen.
Once, a Muslim who had killed a non-Muslim citizen (a dhimmi) was brought before Judge Imam Abu Yusuf. He immediately issued a ruling of qiṣāṣ against him. Suddenly, a man came to him and handed him a piece of paper on which was written: “O you who kill a Muslim in retaliation for a disbeliever, you have committed oppression. Know that the oppressor and the just are never equal. O scholars and poets living in Baghdad and its surroundings, recite ‘Indeed, we belong to Allah,’ mourn for your religion, and be patient, for there is a reward for the patient. Abu Yusuf has wronged Islam by killing a Muslim in retaliation for a disbeliever.” After reading it, Abu Yusuf went to Harun al-Rashid’s court and read the paper to him. Harun al-Rashid then said: “Resolve this accusation so that no disturbance, riot, or disorder occurs.”
Abu Yusuf went out and told the slain man’s heirs: “Prove the truth of the accusation.” They were unable to produce any evidence. Consequently, Abu Yusuf waived the qiṣāṣ.
Malik and al-Layth said: “A Muslim may not be killed in retaliation for a dhimmi (non-Muslim citizen). However, if he laid him down and slaughtered him, especially if he did so out of desire for his wealth, that is a separate matter.”
So much for the non-Muslim citizen. Conversely, a free person will not be killed in retaliation for a slave. On the other hand, if a slave kills a free person, that slave, the killer, will be killed in retaliation.
It is narrated in al-Daraqutni that a man deliberately killed his slave while he was restrained. The Messenger of Allah flogged the killer one hundred times, exiled him for one year, and deprived him of his share of wealth acquired for the Muslims. However, he did not carry out qiṣāṣ against him; rather, in accordance with the Qur’anic verse, he ordered him to free a slave. Furthermore, the meaning of Allah’s words, “a free person for a free person,” is that a free person may be killed only in retaliation for a free person, not for an unfree person, that is, a slave. However, since the killer is not to be killed, the free killer must certainly pay the value of the slain slave, even if that value exceeds the diyah payable for killing a free person. It should be noted that the ruling mentioned here applies when someone kills another person’s slave, not his own. If a master kills his own slave, the ruling is stated in the hadith: the master will not be killed in retaliation for him. This is the view of most jurists, including Imam Malik, al-Shafi‘i, Ahmad, and the Hadawi school. Conversely, Imam Abu Hanifa says that if any free person other than the master kills a slave, the free killer will be killed in retaliation. Allah said in the Qur’an, “We prescribed: a life for a life.” This applies in all cases unless a hadith declares an exception. Since the statement of the Messenger of Allah narrated by al-Bayhaqi—“Qiṣāṣ is not carried out against a master for killing a slave, nor against a father for killing a child”—declares the cases of the father and the master exceptions to this general statement, according to Abu Hanifa these two persons—the father for killing his child and the master for killing his own slave—will not be killed in qiṣāṣ. On the other hand, Ibrahim al-Nakha‘i said that, according to the meaning of the verse, every killer will be killed in retaliation for any person he kills, without exception.
7. The killer must not have as a partner anyone against whom qiṣāṣ does not apply. If such a person participates with him—for example, one of two is an intentional killer and the other an unintentional killer, or one is an adult and the other a child—qiṣāṣ will not apply to either of them; diyah will be imposed on both. This is because there is doubt as to which one was the actual killer. Doubt removes the hadd and qiṣāṣ. Since killing is an indivisible offense that may have been committed by one to whom qiṣāṣ does not apply or by one to whom it does apply, this doubt removes qiṣāṣ and hadd. Once qiṣāṣ is waived, its substitute takes effect, namely diyah. Imam Malik and al-Shafi‘i opposed this view, saying that qiṣāṣ applies to the adult and diyah to the minor. Imam Malik favored distributing this diyah among all the members of the tribe, while al-Shafi‘i favored collecting it from the wealth of the suspected killer.
Deceptive, covert, and kidnapping-based murder
Imam Malik said: When someone deceitfully enters another person’s house and then kills him, our view is that this criminal must be executed. The slain person’s heir has no right to pardon him; the authority to pardon is vested in the ruler. Other jurists say that whether the killing is deceptive, covert, or of any other kind, all cases are the same. The right to qiṣāṣ or pardon is the same in every case, and the power to pardon or demand qiṣāṣ belongs to the slain person’s heir. When a group kills someone, the slain person’s heir may kill whichever of them he wishes, or collect diyah from whichever of them he wishes. This is the view of Ibn Abbas, Sa‘id ibn al-Musayyab, al-Sha‘bi, Ibn Sirin, ‘Ata, Qatadah, al-Shafi‘i, Ahmad, and Ishaq.
During the caliphate of Umar ibn al-Khattab, a woman and her illicit lover killed the woman’s stepson. Umar’s appointed provincial governor, Ya‘la ibn Umayyah, informed Umar of the incident and asked for his opinion. Umar delayed giving his opinion. In the meantime, Ali said: “O Commander of the Believers, if a group of five to seven people stole a camel or goat and then each took one of its limbs, would you cut off all their hands?” Umar replied: “Yes.” Ali said: “Then this case is the same.” Thereafter, the Commander of the Believers wrote to Ya‘la: “Kill both the woman and her illicit lover. If all the inhabitants of Sana‘a had been involved in this killing, I would have killed them all.”
According to Imam al-Shafi‘i, the slain person’s heir may kill all the members of the group in retaliation for the slain person, or kill whichever of them he wishes and collect proportional diyah from the others. If there are two members in the group of killers and qiṣāṣ has been carried out against one of them, half the diyah may be collected from the remaining one. If there are three members and qiṣāṣ has been carried out against two of them, one-third of the diyah may be collected from the third.
Executing an entire group in retaliation for one person
When a group joins together to kill one person, all of them will be killed in retaliation, regardless of whether the group is large or small and whether all of them were directly involved in the killing. Imam Malik narrated in the Muwatta that a group deceitfully killed one man. Umar executed all the members of the group in retaliation for the slain man. He further said: “If all the people of Sana‘a had joined together in the killing of this one man, I would have killed all the inhabitants of Sana‘a.”
Al-Shafi‘i and the Hanbalis stipulated that the act of every person involved in the killing must be such that, even alone, it would have resulted in the killing. If the act of each person alone would not have been sufficient to cause the killing, qiṣāṣ will not be applied to any of them. Imam Malik said that in the case of intentional killing, several free persons involved in the killing will be killed in retaliation for one slain free person. The same applies in the case of women and slaves.
The book Al-Musawwa states that, according to most scholars, when a group joins together to kill one person, all of them will be executed in qiṣāṣ. These jurists hold that this is necessary in the public interest, because qiṣāṣ safeguards human life. If a group could escape qiṣāṣ by collectively killing someone, anyone who wanted to kill another person could gather a group of accomplices and kill him with their help in order to escape qiṣāṣ. In that way, there would be no rationale behind the legal obligation of qiṣāṣ. According to Ibn al-Zubayr, al-Zuhri, Dawud, and the jurists of the Zahiri school, a group will not be killed for killing one person, because Allah said, “a life for a life,” not “lives for a life.”
When one person restrains someone and another kills him
When one person restrains another person and a second person kills him, if it is clear that the killer could not have killed him without the restraint and that the slain person could not escape after being restrained, both the person who restrained him and the person who killed him will be executed. Both participated in the killing. This is the view of al-Layth, Malik, and Ibrahim al-Nakha‘i. Al-Shafi‘i and the Hanafis oppose this view. They say that the killer will be killed, while the person who held the slain man will be imprisoned for life as punishment for restraining him. Al-Daraqutni narrated from Ibn Umar that the Messenger of Allah said: “When one person restrains another and a second person kills him, the one who killed him will be killed, and the one who restrained him will be detained.”
Imam al-Shafi‘i narrated that one man restrained someone and another man killed him. In this case, Ali issued the judgment: “The killer will be killed, and the other will be imprisoned until he dies.”
How qiṣāṣ is established
Qiṣāṣ is established by any one of the following means:
1. By confession, because confession is regarded as the strongest form of evidence. Wa’il ibn Hujr narrated: He said, “I was sitting with the Messenger of Allah when a man brought another man bound with a rope. He said, ‘O Messenger of Allah, this man killed my brother.’ He further said, ‘If he does not confess, I will present evidence against him.’ The Messenger of Allah said, ‘Did you kill him?’ He replied, ‘Yes, I killed him.’” —Muslim, al-Nasa’i.
2. Qiṣāṣ is established by the testimony of two truthful men. Rafi‘ ibn Khadij narrated: An Ansari man was killed at Khaybar. His heirs then went to the Messenger of Allah and informed him of the incident. He said: “Can you find two witnesses to testify concerning the killing of your companion?” —Abu Dawud.
Ibn Qudamah said in al-Mughni that in a murder case, the testimony of one man and two women is not accepted, nor is the testimony of one witness together with the plaintiff’s oath. We know of no disagreement among the scholars on this matter. Qiṣāṣ is the execution of a person as punishment for an offense. Therefore, as with the hadd punishments, caution must be exercised by requiring the testimony of two upright persons, regardless of whether qiṣāṣ is to be carried out against a Muslim, disbeliever, slave, or free person. Caution is necessary so that the punishment is not waived or invalidated.
Conditions for carrying out qiṣāṣ against the offender
There are three conditions for carrying out qiṣāṣ:
1. The claimant demanding qiṣāṣ must be sane and an adult.
2. If the claimant is a minor or insane, and his father, guardian, or ruler is not acting as his representative, the offender will be detained until the minor claimant reaches adulthood and the insane claimant regains sanity. Mu‘awiyah detained Ibn Khasram until the slain person’s son reached maturity. This occurred during the lifetime of the Companions, and no one objected to it.
3. All the heirs of the slain person must agree to carry out qiṣāṣ. It is not acceptable for any of them to disagree. If any of them is absent, a minor, or insane, it is necessary to wait until the absent person returns, the minor reaches adulthood, and the insane person regains sanity and is able to decide independently. Whoever possesses independent authority over a matter cannot have that decision made by anyone else without his opinion, because that would violate his autonomy.
Abu Hanifa said that the adult heirs have the right to carry out qiṣāṣ and do not need to wait until the minors reach adulthood. If even one of the heirs forgives, qiṣāṣ is waived, because qiṣāṣ is indivisible.
4. Qiṣāṣ must be carried out in a manner that does not extend beyond the offender and harm another innocent person. Thus, if qiṣāṣ is due against a pregnant woman, she must not be killed before giving birth and completing breastfeeding the child. If she were killed before giving birth, the child in her womb would also die; if she were killed before breastfeeding, the child would be harmed. After breastfeeding, if a wet nurse can be found, the child will be entrusted to her and qiṣāṣ will be carried out against the woman, because an alternative caretaker is then available. If no alternative can be found for breastfeeding and care, she will be given time until the child has been breastfed for the full two years.
Ibn Majah narrated that the Messenger of Allah said: “When a woman intentionally kills someone and is pregnant, she is not to be killed until she gives birth and raises the child. If a woman commits adultery while pregnant, she is not to be stoned until she gives birth and raises the child.” Likewise, if a woman injures someone’s limb, qiṣāṣ for the injury will not be carried out against her until she gives birth. Breastfeeding is not a condition in this case.
The time for carrying out qiṣāṣ
Once qiṣāṣ has been established by any one of the means mentioned above, and the slain person’s heirs have reached adulthood and are entitled to demand qiṣāṣ, it will be carried out as soon as the slain person’s heirs are present. However, as stated earlier, qiṣāṣ against a pregnant woman will be delayed until she gives birth.
By what means qiṣāṣ will be carried out
The basic principle of qiṣāṣ is that the killer must be killed in exactly the manner in which he committed the killing, because that is what equality requires. However, if this method would prolong the suffering, the sword—that is, killing with a single strike of the sword—is comparatively less painful for him. Allah says:
فَمَنِ اعْتَدَى عَلَيْكُمْ فَاعْتَدُوا عَلَيْهِ بِمِثْلِ مَا اعْتَدَى عَلَيْكُمْ وَإِنْ عَاقَبْتُمْ فَعَاقِبُوا بِمِثْلِ مَا عُوقِبْتُمْ بِهِ
Meaning: “If you take retribution, then take it to the same extent as the wrong done to you.” (Surah al-Baqarah, verse 194)
Bayhaqi narrated that the Messenger of Allah (peace and blessings be upon him) said: “Whoever shoots arrows at us, we shall shoot arrows at them. Whoever burns us with fire, we shall burn them with fire. And whoever drowns us in water, we shall drown them in water.” The Jewish man who had crushed the head of a Muslim woman with a stone had his own head crushed with a stone by the Messenger of Allah (peace and blessings be upon him).
However, the scholars have stipulated here that the method by which the killing was carried out must be lawful under Islamic Shariah. If that method is not lawful, killing by that method is not permitted. For example, killing with a magical spell is not permitted, because it is forbidden. Some scholars of the Shafi‘i school have said that if someone is killed with wine, he should be killed with it as well. Others say that following the principle of imposing punishment by the same method is not necessary. According to the Hanafis and Hanbalis, qisas may not be carried out except with a sword. This is because al-Bazzar narrated from Abu Bakrah that the Messenger of Allah (peace and blessings be upon him) said: “No qisas shall be carried out except with a sword.” The Messenger of Allah (peace and blessings be upon him) forbade mutilating corpses. He said: “When you kill, kill in the best manner; and when you slaughter, slaughter in the best manner.” In response to the hadith narrated by Abu Bakrah, the Hanafis say that all its chains of transmission are weak. The hadith containing the prohibition against mutilation is connected with the verse of Surat al-Nahl: “If you retaliate, then retaliate with the like of what you have been afflicted with,” and the verse of Surat al-Baqarah: “Attack him in the same manner as he attacked you.”
May the murderer be killed in the Sacred Precinct?
The scholars agree that whoever commits a murder in the Sacred Precinct may lawfully be killed there. If he commits the murder outside the Sacred Precinct and then seeks refuge there, or if killing him has become obligatory for another reason, such as apostasy, and he then seeks refuge in the Sacred Precinct, Imam Malik says that he should be killed within the Sacred Precinct. Imam Ahmad and Abu Hanifah, however, hold that he may not be killed inside it. Rather, he should be placed under pressure: nothing should be sold to him, nor should anything be bought from him. Eventually he will be compelled to leave, and as soon as he leaves, he should be killed outside the Sacred Precinct.
Abrogation of Qisas
Even after qisas becomes obligatory, it is annulled if any one of the following circumstances is found:
1. If all or any one of the heirs of the slain person grants pardon. The condition is that the person granting pardon must be of sound mind and capable of distinguishing right from wrong. This is an exclusive authority that does not belong to a minor or an insane person. (If the heirs of the slain person grant pardon, the ruler may not intervene by preventing it. Likewise, if the heirs demand qisas, the ruler may not single-handedly prevent it.)
2. If the offender dies or the offender’s relevant limb is lost. If the person against whom qisas is to be carried out dies beforehand, or loses the limb to which qisas applies, qisas is annulled because carrying it out has become impossible. When qisas is annulled, blood money becomes payable to the heirs of the slain person from the offender’s estate. This is the view of the Hanbalis and Shafi‘is. Malik and the Hanafis, on the other hand, say that blood money need not be paid, because what they were entitled to was life for life, and that has been lost. Therefore, once ownership of the offender’s estate passes to his heirs, the heirs of the slain person have no claim to it. The argument supporting the Hanbali and Shafi‘i view is that the heirs’ entitlement remains suspended either in his life or in his property, and they are free to choose either of the two. Thus, when one is lost, the other becomes certainly payable.
3. If a settlement is reached between the offender and the victim or the victim’s heirs.
The Court’s Authority in Implementing Qisas
It has already been stated that demanding qisas is the right of the slain person’s heirs. However, ensuring that the heirs obtain this right, or giving them the opportunity to obtain it, is the authority of the court.
Al-Qurtubi said that there is no disagreement that, in a case of murder, no one other than the ruler may carry out qisas. The responsibility for carrying out qisas and implementing the hudud has been entrusted to him. Allah has demanded qisas from all believers, yet it is impossible for all believers to be prepared to agree on qisas. Therefore, they have appointed the ruler as their deputy in implementing qisas and the hudud. ‘Allamah al-Thawri wrote the reason for this in his notes on Tafsir al-Jalalayn. He wrote: “Once it is established that intentional killing is aggression, it is the duty of the legitimate ruler to grant the slain person’s heir authority over the murderer, so that the ruler may do whichever of the three things the heir chooses: kill the murderer, pardon him, or take blood money. It is not lawful for the heir of the slain person to exercise complete authority over the murderer without the ruler’s permission, because that would lead to disorder and corruption in society.”
If he kills the murderer before the ruler gives a verdict, he shall be subjected to ta‘zir. It is the ruler’s duty to inspect the weapon with which qisas will be carried out, so that excessive suffering is not inflicted. He must appoint someone capable of carrying out qisas properly. The remuneration for this shall be paid from the Bayt al-Mal (the public treasury). (If the slain person has no heir, responsibility for the matter of qisas rests with the ruler. He shall resolve it in a manner that ensures the overall welfare of the Muslims. He may take qisas, or pardon in exchange for money; he has no authority to pardon without compensation, because this right belongs not to him but to the Muslims.)
When the Heir of the Slain Person Is Missing
Ibn Qudamah says that if someone other than the heir of the slain person kills the murderer, qisas shall be carried out against that killer, and the heirs of the first murderer shall receive blood money. This is the view of Imam al-Shafi‘i. Hasan and Malik say that the killer of the murderer shall be killed, and the blood money for the first slain person is cancelled, because there is no longer an opportunity to take revenge. It is narrated from Qatadah that qisas is not carried out against the second killer, because it was lawful for him to kill the person he killed; therefore, qisas does not apply for killing him. Most scholars, however, hold that qisas shall be carried out against him, because the effectiveness of his killing was not established. “No one other than the heir of the slain person may lawfully kill him; therefore, qisas applies for killing him.”
Debate Concerning Qisas
Debate concerning the death penalty has recently begun. Many writers, philosophers, and jurists have become involved in it, including Rousseau, Bentham, Beccaria, and others. Some have supported it, while others have opposed it and called for its abolition. Those who call for its abolition argue as follows:
1. Punishment is a right that the state reserves for the interests of the society it governs and for the requirements of maintaining it. Society did not give the individual life, and therefore cannot issue an order to confiscate it.
2. Sometimes, unfortunately, an innocent person becomes a victim of circumstances and is mistakenly sentenced to death. There is then no way to correct the mistake. There is no opportunity to restore the lifespan of one who has been sentenced to death.
3. It is a cruel and unjust punishment.
4. It is neither necessary nor indispensable, because there is no evidence that the crimes for which it is imposed decrease as a result of this punishment.
Those who favor retaining the death penalty, on the other hand, have answered these arguments:
1. First argument: “Since society did not give the individual life, it has no right to take it.” They reply that society did not create human freedom either, yet it decides to take away this freedom through other punishments. Moreover, the death penalty is not merely expiation for the offender’s crime; it also guarantees and protects society’s right to survive. By removing and eliminating every member who threatens society’s existence, peace, and order, it ensures society’s peace, order, and existence. Thus it may be stated without hesitation that the death penalty is indispensable for protecting human life and preserving society’s existence.
2. Second argument: “When the death penalty is imposed unjustly, it causes grave harm, yet there is no opportunity to remedy or correct it.” They reply that the possibility of error exists in other punishments as well, and once an error has been carried out there is no way to remedy it. It is also true that cases of mistakenly imposing the death penalty are very rare, because judges generally exercise the greatest caution in applying this punishment. They refrain from imposing this extreme punishment unless there is conclusive evidence supporting the charge.
3. Third: In response to the claim that “the death penalty is unjust,” they say that the argument that an act and its consequence must be of the same nature, and that the death penalty is unnecessary, does not stand. From the perspective of criminology, punishment is a beneficial means of suppressing crime. In other words, the purpose of punishment is to protect society from the harms of crime. For this purpose to succeed, it is desirable that punishment be proportionate to the seriousness of the crime. Crime fulfills a vile desire in the offender’s mind, and only fear of punishment restrains him from fulfilling that desire. Punishment can deter the offender only when it is proportionate to the crime, because it places before him two things side by side: proceeding to commit the desired crime and submitting to the punishment prescribed for it. Only when punishment is capable of deterring crime can fear of punishment prevent him from moving toward it. It is in light of these two views that most laws in the world have retained the death penalty.
Qisas for Injuries Less Serious Than Loss of Life
Just as qisas is established for loss of life, it also applies to injuries less serious than loss of life. These are of two kinds:
1. Injuries to the limbs;
2. Wounds or bodily injuries.
The Qur’an has fully quoted the comprehensive ruling on qisas given in the Torah. Allah says in verse 45 of Surat al-Ma’idah:
وَكَتَبْنَا عَلَيْهِمْ فِيمَا أَنَّ النَّفْسَ بِالنَّفْسِ وَالْعَيْنَ بِالْعَيْنِ وَالْأَنْفَ بِالْأَنْفِ وَالْأُذُنَ بِالْأُذُنِ وَالسِّنَّ بِالسِّنِّ وَالْجُرُوحَ قِصَاصٌ فَمَنْ تَصَدَّقَ بِهِ فَهُوَ كَفَّارَةٌ لَّهُ وَمَنْ لَّمْ يَحْكُمْ بِمَا أَنْزَلَ اللَّهُ فَأُولَئِكَ هُمُ الظَّالِمُونَ
“We ordained for them therein: a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds equal retribution. But whoever waives it as charity, it shall be an expiation for him. Those who do not judge by what Allah has revealed are the wrongdoers.”
That is, Allah prescribed in the Torah for the Jews that whenever someone kills another, he shall be killed—life for life. If someone destroys another person’s eye, his eye shall be destroyed. No distinction shall be made between a small eye and a large eye, or between a child’s eye and an old person’s eye. A nose shall be cut off for a nose, and an ear for an ear. As punishment for breaking or pulling out a tooth, the offender’s tooth shall be broken or pulled out. It makes no difference whether the offender’s tooth is smaller or larger than the victim’s tooth. Qisas for all other wounds shall likewise be carried out as equally as possible.
Indeed, although this ruling of the Torah was prescribed for those who came before us, it remains in force for us as well. In addition to quoting it in the Qur’an, the Messenger of Allah (peace and blessings be upon him) himself declared it to remain in force. Al-Bukhari and Muslim narrated from Anas ibn Malik (may Allah be pleased with him): “Al-Rubayyi‘ bint al-Nadr broke the tooth of one of her female servants. A compensation was then imposed upon them. But the servant’s family rejected the compensation and declared that they would not relinquish the matter without qisas. Anas, the brother of al-Rubayyi‘, went to the Messenger of Allah (peace and blessings be upon him) and said, ‘O Messenger of Allah, will al-Rubayyi‘’s tooth be broken? By Allah, her tooth must not be broken.’ The Messenger of Allah (peace and blessings be upon him) said, ‘O Anas, qisas is Allah’s decree.’ At that point, the servant’s family announced their pardon. The Messenger of Allah (peace and blessings be upon him) then said: ‘Among Allah’s servants are some who, when they swear by Allah, Allah Himself fulfills their oath.’”
This entire ruling of qisas applies only to intentional offenses. For wounds caused accidentally or unintentionally, blood money is prescribed.
Conditions for Qisas in Offenses Less Serious Than Loss of Life
In an offense less serious than loss of life, the following conditions apply to the offender:
1. Being of sound mind.
2. Being an adult. (Being at least fifteen or eighteen years old, or experiencing a nocturnal emission, is sufficient for adulthood. There is disagreement concerning the growth of a moustache, beard, and pubic hair.)
3. Committing the offense intentionally.
4. Being equal to the victim in nobility and social status. This equality is determined by the standards of slavery or freedom, and Islam or disbelief. Therefore, qisas is not carried out if a free person injures or maims a slave, or if a Muslim injures or maims a non-Muslim, because equality is absent between them. The blood of a slave is considered inferior to that of a free person, and the blood of a non-Muslim inferior to that of a Muslim. Since qisas is not obligatory in these cases, its substitute, blood money, is obligatory. When a slave injures or maims a free person, or a non-Muslim injures or maims a Muslim, qisas shall be taken from the offender. According to the Hanafis, there is no distinction between a Muslim and a disbeliever regarding the obligation of qisas for maiming. They further say that, in offenses between women and men, there is no qisas for offenses less serious than loss of life.
Qisas for the Limbs
The basic principle concerning qisas for limbs is that qisas applies to a limb with a joint, such as the elbow and wrist of the arm. It does not apply to a limb without a joint, because equality can be maintained in a limb with a joint but not in one without a joint. Thus, if an offender cuts off someone’s finger from its base, the hand from the wrist or elbow, the foot from a joint, or removes an eye, cuts off an ear or nose, pulls out a tooth, cuts off the penis, or cuts off both testicles, qisas shall be taken from him in exactly the same measure.
Conditions for Qisas for the Limbs
Three conditions must be fulfilled for qisas for the limbs:
1. Safety from the risk of injustice. This includes cutting at a joint or from a limb having a defined limit, as several examples have already been given. Thus, qisas does not apply if a bone other than a tooth is broken, the abdomen is split open, or part of the arm is injured, because carrying out qisas in such cases cannot ensure freedom from injustice and inequality.
2. Similarity in name and position. Therefore, the right hand shall not be cut in place of the left, nor the left in place of the right; the thumb shall not be cut in place of the index finger, nor the index finger in place of the thumb. Equality in name would not be maintained. Even with the consent of both parties, a principal limb may not be taken in place of an additional one, because equality in the limb’s position and usefulness would not be maintained. However, if they are equal in position and nature, the additional one may be taken.
3. Equality between the offender’s and the victim’s limb in completeness and health. Thus, a functioning limb may not be cut in place of a paralyzed limb, nor a complete hand in place of a hand missing some fingers. The reverse, however, is permissible: a paralyzed hand may be cut in place of a healthy hand.
Qisas for Intentional Wounds
Qisas is not obligatory for an intentional wound unless exact proportional retaliation is possible. Qisas must be carried out by inflicting on the attacker’s body a wound equal to the victim’s wound—neither less nor more. If it is impossible to carry out completely equal qisas without exceeding the specified amount, risking excess, or causing some other harm to the opponent, qisas is not obligatory; rather, blood money is obligatory. The Messenger of Allah (peace and blessings be upon him) annulled qisas for wounds to the middle of the skull and wounds to the abdomen. Wounds with a strong likelihood of being fatal, such as a broken neck bone, back bone, thigh bone, or similar injuries, are subject to the same ruling as wounds to the skull and abdomen. No qisas applies to any wound of the head or face except an intentional wound that exposes the skull bone. The rulings for other wounds of the head and face will be discussed in the section on blood money.
Qisas is not obligatory for an injury to the tongue or for breaking any bone other than a tooth, because in these cases it is impossible to carry out qisas without committing injustice.
If someone wounds another person’s abdomen and the victim subsequently recovers, or if he cuts through the middle of the arm, qisas shall not be imposed. The victim may not lawfully cut the attacker’s hand from that same point. He may, however, cut it from the wrist, and may seek a ruling through arbitration for cutting half of the arm. If a bone other than a tooth is broken, a paralyzed hand is cut off, a foot without toes is cut off, a mute person’s tongue is cut off, an eye is removed, or an extra finger on the hand is cut off, the matter must be settled through the arbitration of a reliable person.
When a Group Participates in Cutting or Inflicting a Wound
If a group participates in cutting off a limb or inflicting a wound for which qisas applies, then according to the Hanbalis qisas is obligatory upon all of them if it cannot be determined precisely who inflicted how much of the wound or cutting. This is because two witnesses testified before ‘Ali (may Allah be pleased with him) that one man had committed a theft, and his hand was immediately cut off. Then another man came. When they saw him, the two witnesses said, ‘This is the thief. We were mistaken about the person against whom we previously testified.’ ‘Ali rejected their testimony concerning the second man and imposed blood money upon both of them for cutting off the first man’s hand. ‘Ali also said, ‘Had I known that you had deliberately given such testimony, I would have cut off both your hands.’ If the injuries inflicted by the members of the group differ, or each cuts a separate limb, qisas does not apply to them. Imam Malik and al-Shafi‘i, however, say that qisas shall be taken from them whenever possible: their limbs shall be cut, and qisas for each wound shall be taken from them, just as when a group jointly participates in killing someone, all of them are killed in return. According to the Hanafi and Zahiri schools, two hands are not cut off in place of one hand. Thus, when two people cut off one person’s hand, qisas does not apply to either of them; rather, half of the blood money is payable by each.
Qisas for Beating, Slapping, Kicking, and Insulting
If someone slaps, kicks, or punches another person, or beats or insults him, it is lawful for the victim to take qisas from the attacker:
فَمَنِ اعْتَدَى عَلَيْكُمْ فَاعْتَدُوا عَلَيْهِ بِمِثْلِ مَا اعْتَدَى عَلَيْكُمْ وَاتَّقُوا اللَّهَ
“Whoever attacks you, attack him in the same manner as he attacked you, and fear Allah” (Surat al-Baqarah: 194), and “The recompense of an evil is an evil like it” (Surat al-Shura: 40). This is how the ruling of qisas remains in force.
The slap, punch, beating, or insult that the victim gives as qisas must be equal to the slap, punch, beating, or insult delivered by the attacker. This is what justice requires, and qisas was instituted to establish it. It is likewise a condition that the slap not strike the eye or any place where there is a risk of causing bodily harm.
A special condition in qisas for insults is that the reply must not be an impermissible type of insult. For example, if the insulter called him a disbeliever, he may not reply by calling him a disbeliever. If he called him a liar, he may not call him a liar. If he cursed his father or mother, he may not curse the insulter’s father or mother. Calling a Muslim a disbeliever or a liar is forbidden in Islam from the outset. Moreover, since the insulter’s mother and father did not curse or rebuke him, there is no justification for cursing or insulting them in return. One may curse the one who curses as a form of qisas, rebuke him, and answer coarse language with similar coarse language.
Al-Qurtubi said: “You may exercise your right to return upon the one who wronged you an amount equal to the wrong he inflicted upon you. Rebuke the one who rebukes you with words equal to those he used. Insult the one who insults you. But do not exceed the limit in insulting by involving his parents, children, or relatives. If he makes a false accusation against you, do not make a false accusation against him, because one sin cannot be answered with another sin. For example, if he says to you, ‘O disbeliever,’ you may say to him, ‘You are a disbeliever.’ If he says to you, ‘O adulterer,’ you may respond in qisas or retaliation by saying, ‘O liar,’ or ‘O false witness.’ If you say to him, ‘O adulterer,’ you will become a liar and will be sinful for saying it. If, despite being wealthy, he delays repayment of your debt without an excuse, you may say to him, ‘O wrongdoer, O devourer of people’s wealth.’ The Messenger of Allah (peace and blessings be upon him) said: ‘The delay of a wealthy person makes it lawful to dishonor and punish him.’ I have explained the meaning of dishonoring him earlier. His punishment is imprisonment. (Al-Qurtubi, volume 2, p. 360)”
Qisas for biting, punching, slapping, striking and verbal abuse was practiced during the era of the Rightly Guided Caliphs and the Companions. Bukhari has cited Abu Bakr, Ali, Ibn al-Zubayr and Suwayd ibn Muqarrin as having carried out qisas for severe slapping and the like. Ibn al-Mundhir said: If striking with a whip, stick or stone is intentional, qisas applies. Bukhari records that Umar carried out qisas for one lash, while Ali carried out qisas for three lashes. Shurayh carried out qisas even for one lash and a pinch. However, the regional jurists do not consider qisas legally sanctioned for any such acts, because maintaining equality in them is often impossible. When qisas is not applicable, ta’zir becomes obligatory. Imam Ibn Taymiyyah, however, considered the first view preferable. He said: ‘Those who say that maintaining equality in such cases is impossible should be answered as follows: Since these too are crimes, they must have some punishment—either qisas or ta’zir. Since neither the nature nor the amount of ta’zir is specified, qisas, being closer to something precisely determined, is preferable. Justice is established as far as possible through qisas. It is well known that when the one who struck is struck in the same manner or as nearly as possible, this is closer to justice than imposing ta’zir by lashing him. Therefore, whoever prohibits qisas in these matters for fear of injustice considers a greater injustice acceptable. Thus, the qisas instituted by the Shariah is more consistent with justice and is exemplary.’
Qisas for the Destruction of Property
When a person destroys another person’s property—for example, by cutting down trees, ruining crops, demolishing houses, or burning clothing—may the injured victim exact qisas from the aggressor by doing precisely the same things?
The scholars hold two views on this matter:
1. There is no room for qisas in this case, because it is a destructive and ruinous act that is inherently prohibited by the Shariah. Land and clothing are not equivalent.
2. The second view is that taking qisas is permissible and sanctioned by the Shariah. Loss of life and limb is far more serious than destruction of property. Since qisas applies in those cases, qisas for destruction of property, which is much less serious, is even more deserving of consideration. Thus, when aggressive forces destroy our property, such as fruit-bearing trees, crops and the like, it is permissible for us to destroy their property as well. Some, however, have expressed the view that doing so without necessity is improper.
Ibn al-Qayyim gave preference to the latter view and said: If, in a case involving destruction of property, the opposing party has destroyed property whose damage is prohibited, such as livestock or male and female slaves, qisas may not be taken by destroying the opposing party’s property. If it is not prohibited property, such as clothing that may be torn or cut, or utensils that may be broken, then it should not be destroyed; rather, property equal in value to the property destroyed, or its price, should be taken from the opposing party. However, the demand of qisas and reason is that whoever has caused damage through a particular destructive act has the right to cause similar damage. Just as he tore the victim’s clothes, the victim may tear his clothes. Just as he broke his stick, the victim may break his stick. Equality must, of course, be maintained in every respect. This is justice. There is no clear statement in the Qur’an or Sunnah, nor any analogy or consensus, requiring abstention from this. Nor is it prohibited with respect to Allah’s right. Property is not more sacred than life and limbs. Therefore, when the Shariah grants the right to destroy life and limbs in return for life and limbs, the right to destroy property in return for property is even more deserving. The rationale of qisas lies in the calming of anger and the peace restored to the victim’s heart through equal retaliation. No alternative method achieves this purpose. Moreover, the aggressor may specifically intend to hurt the victim and destroy his property. If he merely pays its price as compensation, he may suffer no hardship at all, because he possesses immense wealth. This may console him, while the victim continues to live with resentment and the bitterness of his property loss. How, then, will receiving the price relieve his bitterness and resentment? How will taking revenge for the suffering inflicted by the aggressor restore peace to his heart?
Accordingly, the wisdom and prudence of the Islamic Shariah oppose this compensation. The statement in Surah al-Baqarah, “Attack him in the same way that the aggressor attacked you”; that in Surah al-Shura, “The recompense of an evil is an evil like it”; and the statement in Surah al-Nahl:
وَإِنْ عَاقَبتُم فَعَاقِبُوا بِمِثْلِ مَا عُوقِبْتُمْ بِهِ
“If you punish, then punish with the like of that with which you were afflicted.” All these statements clearly establish the legitimacy of qisas.
The jurists have ruled that it is entirely permissible to burn the crops in the fields of aggressive unbelievers and cut down their trees when they treat Muslims similarly. This is the correct ruling.
Allah supported and approved the destruction of the Jews’ date palms by the Companions, because they were humiliated and disgraced through it. This proves that Allah approves the humiliation and disgrace of oppressive aggressors. When it was permissible to burn the property of a traitor because he had attacked the Muslims and stolen their spoils, then if someone burns the property of an innocent Muslim, it is permissible to burn his property as well. Although He is comparatively lenient regarding the fulfillment of Allah’s rights, when He has prescribed a financial penalty in such matters, it is even more reasonable to expect Him to prescribe a financial penalty regarding the rights of His servants. Allah instituted qisas to restrain and warn people against attacking the lives and property of others. He could instead have prescribed diyah for every attack and aggression as compensation for the victim’s wrong. But the qisas He prescribed for intentional aggression is more beneficial for the servants, more effective in reforming them, more effective in removing the victim’s resentment and bitterness, and a greater guarantee of the safety of life and limbs. Otherwise, whenever one person harbored resentment against another, he could kill or injure him and escape by paying diyah. But this is contrary to people’s natural compassion for one another, their concern for human interests and welfare, and wisdom and foresight. The same reasoning applies exactly to aggression against property.
If it is asked whether this objective would be achieved even by compensating for the destroyed property, the answer is that if the victim and injured party is satisfied with it, this would be like consenting to compensation after bodily injury. But this is merely an analogy or conjecture. This is the view of Ahmad ibn Hanbal and Ahmad ibn Taymiyyah. They say: The injured party has a choice. If he wishes, he may cause equivalent damage to the same property belonging to the opposing party; otherwise, he may take property of equal value or its price.
Compensation with an Equivalent Item
The scholars agree that if someone destroys food, drink or an item measurable by weight, he must compensate for it with an equal quantity of the same item. Aishah said:
I have never seen anyone prepare food like Safiyyah. She prepared and sent a dish for the Messenger of Allah. I was so offended in my sense of honor that I began to tremble, and the dish fell from my hand and broke. I then said: O Messenger of Allah, what is the expiation for what I have done? He said: A dish equal to the dish, and food equal to the food. —Abu Dawud.
There is disagreement about what should be done if an item whose quantity cannot be determined by weight or measure is destroyed or used up. According to the Hanafi and Shafi’i schools, it must be compensated with an equal quantity of the same item. Its price may be given only when an equal quantity of that item cannot be found. This applies to all items. According to the Maliki school, its price must be paid, not an equal quantity of the same item.
Injury or Plundering Property
When someone attacks and injures another person or plunders his property, may the victim, if able, recover what is due to him himself? The scholars hold various views on this matter. According to al-Qurtubi, its permissibility is the preferred view. He said: The correct view is that it is permissible. He may recover his right by whatever means are possible, taking care only that the act is not considered theft. This is the view of al-Shafi’i, Malik, Ibn al-Mundhir and Ibn al-Arabi. This is not treachery; rather, it is recovery of one’s own right. The Messenger of Allah said: “Help your brother, whether he is an oppressor or oppressed.” Indeed, recovering one’s right from an oppressor constitutes helping him.
Once, Abu Sufyan’s wife Hind bint Utbah said to the Messenger of Allah: Abu Sufyan is extremely miserly. He does not give enough wealth for my maintenance and that of my children. However, I take from his property, without his knowledge, what I need. Will I incur any sin by this? The Messenger of Allah said: “Take, according to customary standards, enough for you and your children.”
In other words, the Messenger of Allah permitted her to take only as much as she needed. However, when the injured party cannot find exactly the goods plundered by the aggressor but gains access to goods of another kind, there is disagreement among the scholars about what he should do. One group says that he may not take them without the ruler’s judgment. According to one view of al-Shafi’i, just as he may take the same goods, he may also take goods of another kind. According to his other view, he may not take goods of a different kind.
Some say that he must determine the value of the plundered goods and may take goods equal to that value.
Qisas from the Ruler
The ruler of a nation is one of its members. The laws applicable to the entire nation also apply to him. His distinction among the other members of the nation is only that of a representative or person entrusted with responsibility. Therefore, when a ruler wrongs a member of the nation, qisas will be taken from him, because there is no distinction between him and others regarding Allah’s law. Allah’s law is universal, and all Muslims fall under it. Abu Nadrah narrated: Umar ibn al-Khattab once addressed us, saying: “O people, I do not send the rulers whom I appoint over you to beat you or seize your property. I send them only to teach you your religion and the Sunnah of your Prophet. If anyone is treated otherwise, let him bring his complaint to me. By Allah, in Whose hand is Umar’s life, I will certainly take qisas from him.” At this point Amr ibn al-As said: If someone disciplines a subject, will you also take qisas from him? Umar said: Yes, by Allah, I will take qisas even then. How could I refrain from taking qisas? I have seen the Messenger of Allah have qisas taken from himself.” —Abu Dawud, al-Nasa’i. Al-Nasa’i and Abu Dawud also narrated that Abu Sa’id ibn Jubayr said: One day the Messenger of Allah was distributing something among us when a man suddenly rushed upon him. The Messenger of Allah struck him with the tip of a date-palm stalk that was in his hand. The man immediately cried out. The Messenger of Allah then said: “Come and take qisas from me.” The man immediately said: “O Messenger of Allah, I have forgiven you.” Another man complained to Abu Bakr al-Siddiq that a government official had cut off his hand. Abu Bakr said: If you are telling the truth, I will certainly take qisas from him.
In another report, Umar said: “I saw the Messenger of Allah take qisas from himself, I saw Abu Bakr take qisas from himself, and I myself have had qisas taken from me.”
Will Qisas Be Taken from a Husband Who Injures His Wife?
Ibn Shihab al-Zuhri said: The established Sunnah is that if a husband injures his wife, he must pay her financial compensation, not be subjected to qisas.
Imam Malik explained: If a husband intentionally strikes his wife and destroys her eye, breaks her hand, cuts off her finger or does something similar, qisas will be taken from him for it. But if a husband strikes his wife with a rope or a whip and, despite not intending it, causes an injury, the husband must pay compensation or a fine, not be subjected to qisas.
Al-Mudawwanah states: The scholars agree with Imam Malik’s explanation.
No Qisas Until the Wound Has Healed
Qisas will not be taken from the aggressor until the victim’s wound has healed and it is certain that the injury will not spread to other organs. If it spreads to other parts of the body, the aggressor must also compensate for that. Qisas will not be carried out in intense heat or severe cold; rather, it will be delayed so that the person undergoing qisas does not die from it. If a fatal incident occurs because qisas was carried out in extreme heat or cold, or with a blunt or poisoned weapon, the remaining diyah will become obligatory. Ahmad and al-Daraqutni narrated from Amr ibn Shu’ayb:
A man was struck on the neck with a horn. He immediately came to the Messenger of Allah and said: Carry out qisas for me. The Messenger of Allah said: Wait until your wound has healed. The man left. Several days later he returned and said: Carry out qisas for me. The Messenger of Allah then carried out qisas. Several days later the man returned and said: O Messenger of Allah, I have become lame. The Messenger of Allah said: I had forbidden you, but you did not heed my prohibition. May Allah cast you away. I have no remedy for your lameness.”
Thereafter, the Messenger of Allah prohibited carrying out qisas before the injured person’s wound had healed. From this hadith, Imam al-Shafi’i concluded that waiting until the wound heals is recommended, because the Messenger of Allah had been prepared to take qisas even before healing and did so. According to others, waiting is obligatory. The qisas he took before healing occurred before he knew of its possible harm. If an aggressor intentionally cuts off someone’s finger and the injured person then pardons him, but after the pardon the wound spreads to the entire palm or becomes fatal, no compensation or remedy is due if the pardon was granted without consideration. If the pardon was granted in exchange for money, the injured person will receive diyah for the spread of the wound. The compensation for the part pardoned will be deducted from the compensation for the spread of the wound, and the remaining diyah will be paid.
When Death Occurs Because of Qisas
The scholars disagree about a case in which the person undergoing qisas dies from the wound inflicted in carrying out qisas. According to the majority, the person who took qisas bears no liability, because he did not transgress. Moreover, since there is unanimous agreement that no one is liable if a thief dies because his hand was cut off, this case is similar. But according to Abu Hanifah, al-Thawri and Ibn Abi Layla, if the person carrying out qisas dies, diyah becomes obligatory upon the agnate relatives of the person who took qisas, because this is an unintentional killing.
Diyah or Blood Money
Definition
The property that must be given, because of a crime, to the person harmed by the crime or to his heir is called diyah. Diyah applies both to crimes for which qisas is prescribed and to crimes for which qisas is not prescribed. The practice of diyah existed among the Arabs, and Islam retained it. Its basic source is found in the following verse:
وَمَا كَانَ لِمُؤْمِنٍ أَنْ يَقْتُلَ مُؤْمِنًا إِلَّا خَطَأً ۚ وَمَنْ قَتَلَ مُؤْمِنًا خَطَأً فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ وَدِيَةٌ مُسَلَّمَةٌ إِلَىٰ أَهْلِهِ إِلَّا أَنْ يَصَّدَّقُوا ۚ فَإِنْ كَانَ مِنْ قَوْمٍ عَدُوٍّ لَّكُمْ وَهُوَ مُؤْمِنٌ فَتَحْرِيرُ رَقَبَةٍ مُؤْمِنَةٍ ۖ وَإِنْ كَانَ مِنْ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُمْ مِيثَاقٌ فَدِيَةٌ مُسَلَّمَةٌ إِلَىٰ أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ ۖ فَمَن لَّمْ يَجِدْ فَصِيَامُ شَهْرَيْنِ مُتَتَابِعَيْنِ تَوْبَةً مِّنَ اللَّهِ ۗ وَكَانَ اللَّهُ عَلِيمًا حَكِيمًا
Meaning: It is not for a believer to kill a believer except by mistake. Whoever kills a believer by mistake must free a believing slave and pay blood money to his family, unless they remit it. If he was from a people hostile to you and was a believer, then freeing a believing slave is required. If he was from a people with whom you have a covenant, then blood money must be paid to his family and a believing slave must be freed. Whoever cannot find one must fast for two consecutive months, as repentance from Allah. Allah is All-Knowing, All-Wise.” (Surah al-Nisa’: 92)
Abu Dawud narrated from Amr ibn Shu’ayb: During the lifetime of the Messenger of Allah, the amount of diyah was eight hundred dinars or eight thousand dirhams. At that time, the diyah of the People of the Book was half the diyah of a Muslim. This continued until the caliphate of Umar. When Umar became caliph, he delivered a sermon and said: Take note: the price of camels has now increased. He therefore fixed one thousand dinars for Syria and Egypt, the lands using gold currency; twelve thousand dirhams for Iraq, the land using silver currency; two hundred cattle for those who raised cattle; two thousand goats for those who raised goats; and two hundred pairs of trousers and shirts, or cloaks and loincloths, for those for whom paying diyah in clothing was convenient.”
Imam al-Shafi’i declared in Egypt: From those who use silver currency or gold currency, only the price of the specified number of camels will be collected, regardless of how high their price may be. However, the preferred view is that it has not been established beyond doubt that the Messenger of Allah prescribed diyah in anything other than camels. Perhaps Umar introduced several other categories of diyah because of some newly arising necessity.
The Purpose of Diyah
The principal purpose of diyah is to warn, deter criminal tendencies and safeguard life. For this reason, diyah must be such that paying it is extremely difficult and painful for the persons held responsible. Only when the amount of diyah is very large, so that paying it causes a substantial reduction in one’s property and great hardship in giving it to the victims, will diyah truly be a difficult and painful burden. In reality, diyah is a consequence that combines both punishment and compensation. —Tarikh al-Fiqh, p. 82.
The Amount of Diyah
The Messenger of Allah himself prescribed diyah and determined its amount. For a free Muslim man, he prescribed one hundred camels for those who dealt in camels, two hundred cattle for those who dealt in cattle, two thousand goats for those who dealt in goats, one thousand dinars for those who used gold currency, twelve thousand dirhams for those who used silver currency, and two hundred pairs of loincloths and cloaks or trousers and shirts for those for whom paying diyah in clothing was convenient. Whoever is liable for diyah may present it from any of the stated categories, and the heirs of the deceased must accept it, whether or not the heirs belong to that category, because what has been presented to them is the original diyah that was prescribed.
Imam Abu Hanifah and Imam Ahmad said: The diyah for intentional killing consists of twenty-five one-year-old female camels, twenty-five two-year-old female camels, twenty-five four-year-old female camels and twenty-five five-year-old female camels. According to both of them, the diyah for شبه-intentional killing is the same. According to another report, Imam al-Shafi’i held that it consists of thirty four-year-old female camels, thirty five-year-old female camels and forty pregnant female camels. The diyah for accidental killing consists of twenty five-year-old female camels, twenty four-year-old female camels, twenty two-year-old female camels, twenty one-year-old male camels and twenty one-year-old female camels. Imam Malik and al-Shafi’i prescribed two-year-old camels instead of one-year-old camels.
Homicides for Which Diyah Is Obligatory
The scholars agree that the punishment for accidental killing, شبه-intentional killing, and intentional killing committed by a minor or an insane person is diyah. (According to Imam Abu Hanifah and Malik, in a killing committed by an insane person or a minor, diyah is obligatory upon the killer’s agnate relatives. According to Imam al-Shafi’i, diyah is obligatory from the minor’s property.) Similarly, diyah is obligatory for intentional killing when the victim belongs to a less noble class than the killer, such as when a free person kills a slave. Diyah is also obligatory when a sleeping person turns over and falls upon another person, killing him; when an awake person falls from above onto another person and crushes him to death; and when someone digs a pit and a person falls into it and dies. In all these cases, diyah is obligatory upon the person who caused the death.
It is narrated from Ali that he said: The Messenger of Allah sent me to Yemen. We reached a tribe that had dug a deep pit to confine a lion. The people were pushing one another beside the pit. Suddenly, as one man fell into the pit, he caught hold of another and hung on to him. Then, as the latter was falling, he caught hold of another. Ultimately, four men fell into the pit. The lion mauled them, and then a man killed the lion with a spear. All four injured men also died. The heirs of the deceased then began disputing with one another. They drew their weapons and prepared to fight. Ali came to calm them and said: Are you going to fight while the Messenger of Allah is alive? I will settle your dispute. If you accept it, that will be the final settlement; otherwise, restrain one another and go to the Messenger of Allah, and he himself will give the final judgment in your dispute. Whoever does not accept that judgment will receive nothing. My judgment now is this: Collect from all the tribes that dug this pit one-quarter diyah, one-third diyah, half a diyah and a full diyah. Then one-quarter diyah will be paid for the first man, because he died because of the three who fell upon him; one-third diyah for the second; half a diyah for the third; and a full diyah for the fourth.”
After hearing Ali’s ruling, they resolved to go to the Messenger of Allah. When the Messenger of Allah was at Maqam Ibrahim, they came to him. After hearing the whole incident, the Messenger of Allah declared Ali’s ruling correct.” (Ahmad. The wording of another narration by Ahmad is: “Did the Messenger of Allah impose the diyah on all the tribes that had gathered beside the well?”)
It is learned from the narration of Ali ibn Rabah al-Lakhmi that, during the caliphate of Umar, a sighted man used to guide a blind man along the road. One day, both of them fell into a well. The blind man fell on the sighted man, and the sighted man died. Umar imposed the diyah of the sighted man on the blind man, since the sighted man had died because of him. For this reason, during the Hajj season, the blind man would recount his sad story and recite poetry before the people. He would say: “O people, I have been wronged. Can a blind man be held responsible and required to pay diyah for killing a healthy, sighted man? The two of them fell while walking together.” (Dar Qutni.) It is narrated in a hadith that a man came to some householders and asked them for water to quench his thirst. But when they did not give him water, the man died. Umar imposed diyah on those householders. If someone suddenly goes up to another person and lets out a terrifying scream, causing him to die, diyah becomes obligatory upon him. If someone changes his voice and screams to frighten a child or boy, causing him to become insane or unconscious, the one who screamed must pay compensation.
Light and heavy diyah
Diyah is of two kinds: light and heavy. Light diyah is payable for an accidental killing, while heavy diyah is payable for a شبه-intentional killing. In an intentional killing, if the victim’s heirs waive qisas, heavy diyah must be paid according to al-Shafi‘i and the Hanbalis. According to Imam Abu Hanifa, however, no diyah is payable for intentional killing. In his view, whatever the two parties agree upon through settlement must be paid, and it must be paid immediately; deferment is not permitted. Heavy diyah consists of one hundred camels, forty of them pregnant. Ahmad, Abu Dawud, al-Nasa’i, and Ibn Majah narrated that the Messenger of Allah said: “Know that killing intentionally with a whip, stick, or stone requires heavy diyah: one hundred she-camels, forty of them between their sixth and ninth years, all of them pregnant.” Heavy diyah may not be paid with anything other than she-camels, because the ruling of the Shariah was established in this manner. There is no scope here for speculation or reasoning. It must be implemented as it was transmitted. This is among the firm and definitive rulings.
Heavy diyah for aggression in a sacred month, in a sacred city, and against a close relative
According to Imam al-Shafi‘i and others, heavy diyah is prescribed in both killing and wounding if the offense occurs in a sacred city, during a sacred month, or against a blood relative. This is because the Shariah has declared these prohibited matters to be especially inviolable. Therefore, since the offense is more serious, the diyah is also heavier.
It has been narrated from Umar, Qasim ibn Muhammad, and Ibn Shihab that in these cases the diyah is increased by one-third. Abu Hanifa and Malik, however, held that the diyah does not become heavy for these reasons, since there is no proof for making it heavy. Diyah depends on the determination of the Lawgiver. Making the diyah heavy for an offense committed accidentally contradicts the fundamental principles of the Shariah.
Upon whom is diyah obligatory?
The diyah obligatorily imposed in connection with a killer is of two kinds:
1. Diyah imposed upon the offender’s property. Ibn Abbas said: “The killer’s agnate relatives bear no liability in intentional killing when the killing is acknowledged, nor in a settlement concerning intentional killing.” No Companion opposed Ibn Abbas’s view.
Malik narrated from Ibn Shihab: “When the victim’s heirs waive qisas in an intentional killing, diyah is imposed only upon the killer’s property. This is the established practice. If the agnate relatives voluntarily assist him, however, that is another matter.”
The agnate relatives are not required to pay diyah in any of the following three situations: intentional killing, acknowledged killing, and a settlement after the killing. This is because punishment is prescribed for intentional killing. Thus, there is no question of relieving the killer by making his agnate relatives bear any part of the diyah on his behalf. Likewise, in an acknowledged killing, the obligation arises because of the acknowledgment, not because of the killing itself. An acknowledgment is evidence that imposes diyah only upon the person making the acknowledgment, not upon anyone else. The agnate relatives are also not required to pay diyah in a settlement based on an acknowledgment, because the consideration required by the settlement does not become obligatory because of the killing; rather, it becomes obligatory because of the settlement agreement. Moreover, through his acknowledgment, the offender himself accepts responsibility for his crime. Therefore, compensation for the life taken rests upon the killer.
2. Another type of diyah is that which becomes obligatory upon the killer, while his agnate relatives assist him by bearing it on his behalf. This applies to quasi-intentional killing and unintentional or accidental killing. (The diyah for the intentional killing committed by a minor or an insane person is also obligatory upon their agnate relatives. Qatadah, Abu Thawr, Ibn Abi Layla, and Ibn Shubrumah, however, said that the diyah for quasi-intentional killing should be paid from the offender’s property. This latter view is weak.) In this case, the killer himself is included among the agnate relatives, since he is the killer. Therefore, there is no reason to exclude him from this group. Imam al-Shafi‘i said: No part of the diyah is obligatory upon one who kills accidentally, because he is deserving of pardon.
Among the agnate relatives upon whom diyah for quasi-intentional and accidental killing is obligatory, only adult, sane, financially capable male relatives are included. A wealthy blind, disabled, or elderly man is also included. Women, the poor, minors, the mentally ill, and those who follow a religion different from that of the offender are not included, because the basis of this obligation is assistance, and these people are not considered capable of providing assistance.
Regarding how the imposition of diyah upon agnate relatives began, al-Bukhari and Muslim narrated the following incident from Abu Hurayrah. During the time of the Messenger, two women of the Hudhayl tribe fought. During the fight, one of them threw a stone at the other and killed her. The woman died along with her unborn child. The Messenger of Allah then imposed the woman’s diyah upon her killer’s agnate relatives. During the time of the Messenger of Allah, “agnate relatives” meant the killer’s entire tribe. This continued until the time of Umar. Eventually, when the army and the civilian administration had been fully organized, responsibility for the diyah was assigned to the civilian administration, although the opposite arrangement had been in force during the time of the Messenger of Allah. In support of the arrangement introduced by Umar, al-Sarakhsi said: “If it is asked how the Companions reached agreement on an arrangement contrary to the ruling of the Messenger of Allah, I would answer that this was the Companions’ consensus on reconciling the Messenger’s ruling with changed circumstances. They knew that the Messenger assigned responsibility for diyah to the tribe only because this would provide some assistance, since in those days people obtained strength and support through their tribes. Later, when Umar organized the state administration, the state administration became the source of all strength. Matters eventually reached the point that people fought against their own tribes on behalf of their administration.” This is the Hanafi view. The Malikis and Shafi‘is, however, rejected it, because after the Messenger of Allah there is no opportunity to abrogate an established ruling of the Shariah. No one has the right to change the rulings that were in force during the time of the Messenger of Allah.
According to the unanimous view of the scholars, the diyah obligatory upon agnate relatives may be paid over three years. Diyah that must be paid from the killer’s property, however, must be paid immediately according to Imam al-Shafi‘i. According to the Hanafis, it too may be paid over three years, like the diyah for accidental killing. Making the agnate relatives liable for the diyah of quasi-intentional and accidental killing is an exception to the general principle of Islam. That principle is that a person is responsible only for his own actions and will be held accountable only for what he himself does. Allah says:
وَلَا تَزِرُ وَازِرَةٌ وِزْرَ أُخْرَىٰ
“No bearer of burdens shall bear the burden of another.” The Messenger of Allah also said: “No one shall be held responsible for the sin of his father or brother.” —al-Nasa’i.
Islam prescribed the agnate relatives’ participation in the diyah in this case solely to show sympathy toward the offender and extend assistance to him, since he was involved in an offense that he did not commit intentionally. This was done to preserve the traditional Arab social system. Within that system, mutual assistance, cooperation, and participation prevailed among the members of every tribe; in that context, this was a practical necessity of the social order. Its rationale is clear. When a tribe realizes that if one of its members commits this offense, the entire tribe will have to share the burden of his diyah, it will always strive to restrain every person under its authority from crime and encourage them to live upright lives that keep them free from mistakes.
Most jurists hold that the agnate relatives will bear responsibility for any amount of the diyah for an accidental offense exceeding one-third; if it is less than one-third, it will be paid from the offender’s property. (Imam al-Shafi‘i said: Whether the offense is minor or major, the agnate relatives must bear the entire diyah for an accidental offense. Likewise, the diyah for an intentional offense must be paid entirely from the offender’s property, whether it is small or large.)
According to Malik and Ahmad, no fixed amount of diyah is obligatory upon any individual agnate relative. The ruler should try to impose upon each of them whatever amount is easy for that person to pay. He should begin with the closest relative, then proceed among the rest from the next closest to the next closest, distributing it in this order.
Imam al-Shafi‘i said: Among the agnate relatives, one dinar is imposed upon the wealthy and half a dinar upon the poor. In his view, diyah is imposed upon relatives according to their degree of closeness. The closest are the father’s sons, followed by the grandfather’s sons, followed by the sons of the father’s sons. If the killer has no agnate relatives within his lineage or among his allies, responsibility for the diyah falls upon the state treasury. The Messenger of Allah said: “Whoever has no guardian, I am his guardian.” Similarly, if the offender is poor, his family is also poor, and they are unable to bear the diyah, the Bayt al-Mal, or state treasury, will bear responsibility for it.
If Muslims kill someone during wartime, believing him to be an unbeliever, and it subsequently becomes known that he was a Muslim, his diyah will be paid from the Bayt al-Mal. Imam al-Shafi‘i and others narrated that the Messenger of Allah paid the diyah of Yaman, the father of Hudhayfah. The Muslims killed him at the Battle of Uhud without recognizing him. If someone dies under pressure from a crowd, his diyah will likewise be paid from the Bayt al-Mal. Musaddad narrated that a man died under the pressure of a crowd on Friday, and Ali paid his diyah from the Bayt al-Mal. According to the Hanafis, however, in the present age diyah will be paid from the offender’s property. The book al-Durr al-Mukhtar states: “Mutual cooperation and assistance are its basis. Where this exists, the agnate relatives will provide the diyah; where it does not exist, they will not.” Where there is neither a tribe nor mutual assistance, the Bayt al-Mal will pay the diyah. If there is no Bayt al-Mal, the diyah will be paid from the offender’s property. According to Ibn Taymiyyah, if it is impossible for the agnate relatives to pay the diyah, it will be paid from the property of the person through whose accidental act the offense occurred.
Diyah for the limbs
Human limbs are of three kinds: single limbs, paired limbs, and limbs numbering more than two. Examples of single limbs are the nose, tongue, and penis. Examples of paired limbs are the eyes, ears, lips, cheeks, hands, feet, testicles, breasts, buttocks, and eyebrows.
When someone completely injures and destroys another person’s single limb or paired limbs, the full diyah becomes obligatory. When one of a pair is destroyed, half the diyah becomes obligatory. Thus, if the nose is injured and destroyed, the full diyah is obligatory, because the function of the nose is to collect scents in the nostrils and convey them to the brain. This function ceases completely when the soft upper part of the nose is cut off. Likewise, if someone cuts off the tongue, the full diyah becomes obligatory, because the speech by which human beings are distinguished from speechless animals is lost. Speech is a highly desired faculty, and without it a person is deprived of all interests and benefits. Through it, one can communicate one’s purposes to others and express one’s feelings. Similarly, if part of the tongue is cut off and the person becomes entirely unable to speak, the full diyah is also obligatory, because cutting off part of the tongue causes the same loss of benefit as cutting off the whole tongue. If a person whose tongue has been cut can pronounce some letters but not others, the diyah will be determined in proportion to the number of letters. It is narrated from Ali that he determined diyah according to the letters: he reduced the amount of diyah in proportion to the letters the person could pronounce and imposed diyah for those he could not pronounce.
Even if only the tip of the penis is cut off, the full diyah must be paid, because intercourse and retention of urine are performed through this part. If someone’s back is struck and, as a result, he becomes unable to walk, the full diyah is likewise obligatory. Destroying both eyes requires the full diyah, and destroying one eye requires half the diyah. Injuring both eyelids requires the full diyah; injuring the two eyelids of one eye requires half the diyah; and injuring one eyelid of one eye requires one-quarter of the diyah. Both ears require the full diyah, and one ear half the diyah. Both lips require the full diyah, and one lip half the diyah, whether it is the lower or upper lip. Both hands require the full diyah, and one hand half the diyah. Both feet require the full diyah, and one foot half the diyah. The toes of both feet require the full diyah, as do the fingers of both hands; each finger requires ten camels, that is, one-tenth of the diyah. There is no difference among the fingers: the thumb, little finger, and other fingers are all equal. For the tip of each finger of the hands and feet, one-third of one-tenth of the diyah is obligatory. Each finger has three joints, but the thumb has two. For each joint, half of one-tenth of the diyah is obligatory. Both testicles require the full diyah, and one requires half the diyah. Both buttocks, and both breasts of a man or woman, require the full diyah; one requires half the diyah. All the teeth together require the full diyah, and each tooth requires five camels. All teeth are equal.
Diyah for the functions of the limbs
If a person’s brain is damaged by a blow, the full diyah becomes obligatory, because it is the brain that distinguishes human beings from animals. Likewise, if any sense—such as hearing, sight, smell, taste, or speech—is completely lost, the full diyah becomes obligatory. Each of these senses has a distinct and valuable function, and they contribute to the beauty and completeness of the person’s life. When a man struck another person, causing him to lose his hearing, sight, understanding, and sense of smell, Umar imposed four full diyahs upon the striker, although the injured man remained alive.
When the sight of one of the two eyes or the hearing of one of the two ears is lost, half the diyah becomes obligatory, whether or not the other one remains sound.
Injuring both breasts of a woman requires the full diyah, and injuring one requires half the diyah. If the sound eye of a one-eyed person is destroyed, the full diyah must be paid. Umar, Uthman, Ali, and Ibn Umar gave this ruling, and no Companion opposed them. This is because a one-eyed person uses the sound eye to perform the function of both eyes; therefore, destroying that sound eye is equivalent to destroying both eyes. Cutting off all the hair on the head, the entire beard, both eyebrows, and all the hair of both eyelids requires the full diyah. Cutting the hair of one eyebrow requires half the diyah, and the hair of one eyelid requires one-quarter of the diyah. The matter of the moustache is left to the judgment of the judge.
Diyah for wounds to the head and face
There are ten types of wounds to the head and face. Nine of them do not entail qisas. The only one that entails qisas, if intentional, is the mudihah, meaning a wound that exposes the bone. These wounds are as follows:
1. Kharisah: a slight tearing of the skin.
2. Badi‘ah: the skin is torn and a small amount of flesh is also torn.
3. Damiyah or damighah: a wound from which blood flows.
4. Mutalahimah: a deep wound into the flesh.
5. Samhak: a wound in which a thin covering remains over the bone.
6. Mudihah: a wound in which no covering remains over the bone; the bone is exposed.
7. Hashimah: a wound in which the bone is broken and crushed.
8. Munqilah: a wound in which the bone is so crushed and exposed that it is displaced.
9. Ma’mumah or ammah: a wound that reaches the scalp.
10. Ja’ifah: a wound that reaches into the abdomen.
For wounds other than the mudihah, the judgment of an upright and just judge will be followed. Some hold that the physician’s fee must be paid. If the mudihah is intentional, qisas is required. If it is unintentional, half of one-tenth of the diyah must be paid, whether the wound is small or large. Half of one-tenth of the diyah means five camels. This is established by the letter the Messenger of Allah sent to Amr ibn Hazm. If there is more than one mudihah, five camels must be paid for each one. If a mudihah occurs somewhere other than the head or face, it will be settled through the arbitration of a just person. For a hashimah, one-tenth of the diyah, namely ten camels, must be paid. This is narrated from Zayd ibn Thabit, and no Companion opposed it. For a munqilah, one and a half tenths, namely fifteen camels, must be paid. By consensus, the amount for an ammah or ma’mumah is one-third of the diyah. The amount for a ja’ifah is likewise one-third of the diyah by consensus. If the wound reaches deep into the abdomen, it is considered two ja’ifah wounds, and two-thirds of the diyah must be paid.
Diyah for women
When a woman is killed accidentally, half the diyah of a man is obligatory. If a woman’s limbs are injured or she is wounded elsewhere, half the diyah prescribed for a man’s injury must likewise be paid. This is the view of most scholars. Umar, Ali, Ibn Masud, and Zayd ibn Thabit said that a woman’s diyah is half that of a man. No one else opposed the view of these four Companions; therefore, this constitutes consensus. Moreover, since a woman is regarded as half a man in testimony and inheritance, the same applies here. Others say that the diyah of a woman and a man is equal up to one-third; beyond that, a woman’s diyah is half a man’s. Al-Nasa’i and Dar Qutni narrated that the Messenger of Allah said: “The diyah of a woman and a man is equal until it reaches one-third of the diyah.” In the Muwatta of Imam Malik and in al-Bayhaqi, it is narrated that Rabi‘ah ibn Abd al-Rahman said:
I asked Sa‘id ibn al-Musayyab, “What is the diyah for a woman’s finger?” He said: “Ten camels.” I said: “For two fingers?” He said: “Twenty camels.” I said: “For three?” He said: “Thirty camels.” I said: “For four?” He said: “Twenty camels.” I said: “When her injury became greater and her affliction more severe, did her intelligence decrease?” Sa‘id said: “Are you from Iraq?” (The Iraqis were known for asking hypothetical questions.) I said: “Rather, I am a scholar—or an ignorant person seeking knowledge.”
Sa‘id said: “My nephew, this is the Sunnah.”
Imam al-Shafi‘i examined this view and said that by “Sunnah,” Sa‘id ibn al-Musayyab meant the established practice or precedent of Zayd ibn Thabit, not the Sunnah of the Messenger of Allah. Imam al-Shafi‘i said: “In general, Sunnah means the Sunnah of the Messenger of Allah. But it is known that leading Companions issued legal verdicts against this view. If it had been the Sunnah of the Messenger of Allah, they would not have opposed it. Moreover, since this view establishes something unrealistic—namely, that when a wound becomes more painful and serious, its diyah decreases—it cannot be the Sunnah of the Messenger of Allah. The rationality of the Shariah is evident from the Sunnah of the Messenger of Allah. This view cannot be described as the Sunnah of the Messenger of Allah, because it is impossible that the Shariah would declare an offender free of punishment.”
Diyah for the People of the Book
If a member of the People of the Book is killed accidentally, half the diyah payable for a slain Muslim is obligatory. If the victim is a man, it is half the diyah of a Muslim man; if a woman, half the diyah of a Muslim woman. Imam Ahmad narrated that the Messenger of Allah ruled that the diyah of the People of the Book is half the diyah of a Muslim, and the same applies to the diyah for wounds. This was the view of Imam Malik and Umar ibn Abd al-Aziz. Abu Hanifa, al-Thawri, Umar, Uthman, and Ibn Masud held that the diyah of the People of the Book is equal to the diyah of Muslims. Allah says:
وَإِنْ كَانَ مِنْ قَوْمٍ مِ بَيْنَكُمْ وَبَيْنَهُمْ مِيثَاقَ فَدِيَةٌ مُسَلَّمَةٌ إِلَى أَهْلِهِ وَتَحْرِيرُ رَقَبَةٍ مُّؤْمِنَةٍ
“And if he belonged to a people with whom you have a covenant, then compensation must be paid to his family and a believing slave must be freed.”
Imam Ibn Shihab al-Zuhri said: The diyah of a Jew, a Christian, and any protected non-Muslim citizen is the same as the diyah of a Muslim. This was also the practice during the time of the Messenger of Allah and during the periods of Abu Bakr, Umar, Uthman, and Ali. When the time of Muawiyah came, he began depositing half of the diyah of non-Muslims into the Bayt al-Mal and giving the other half to the victim’s family. Later, Umar ibn Abd al-Aziz decided that only half the diyah should be paid and discontinued the half that Muawiyah had taken for the Bayt al-Mal. However, I was not fortunate enough to remind Umar ibn Abd al-Aziz that the diyah of protected non-Muslim citizens, or dhimmis, had been a full diyah.”
According to Imam al-Shafi‘i, the diyah of the People of the Book and dhimmis is one-third of the diyah of a Muslim, while the diyah of a treaty-bound or asylum-seeking polytheist or fire worshipper is two-thirds of one-tenth of the Muslim’s diyah. In other words, if the original diyah is twelve thousand dirhams, eight hundred dirhams must be paid. Umar, Uthman, and Ibn Masud said that the diyah of dhimmi and People-of-the-Book women is half. According to Ibn Abbas, al-Sha‘bi, al-Nakha‘i, al-Shafi‘i, and al-Tabari, kaffarah must also be given along with the diyah for killing a dhimmi or a treaty-bound non-Muslim.
Diyah for an unborn child
If the fetus dies as a result of an intentional or unintentional injury inflicted on a pregnant woman, while she herself does not die, a ghurra, that is, a moderate diyah, becomes obligatory, whether the fetus is born dead or dies in the womb, and whether it is male or female. If it is born alive and then dies, a full diyah must be paid: one hundred camels for a male and fifty camels for a female. Its having been alive may be established by sneezing, breathing, crying, screaming, movement, and the like.
According to Imam al-Shafi’i, when a child dies in its mother’s womb, it is necessary to know that the child’s body had formed and that life had entered it. Explaining this, he said that human features, such as hands and fingers, must have appeared. According to Imam Malik, this condition is not necessary. He says that whatever the woman gives birth to—whether a lump of flesh or a clot of blood—if it indicates that a child had been formed, a ghurra must be paid. However, al-Shafi’i’s view is preferable. Thus, when it is not known that a complete body had formed, nothing is due.
[Note: The scholars agree that when the mother dies while the child is still in her womb, no diyah is due. However, they differ concerning a mother who dies from a blow to the abdomen and then gives birth to a dead child. Most jurists hold that no diyah is due, while al-Layth and Dawud hold that a ghurra is due, because the relevant consideration is that the mother was alive when the blow was inflicted.]
The amount of the ghurra: A ghurra is five hundred dirhams. This is the view of al-Sha’bi and the Hanafis. According to narrations by Abu Dawud and al-Nasa’i, it is one hundred goats. Some hold that it is five camels. Abu Hurayrah reported that the Messenger of Allah, peace and blessings be upon him, ruled that the diyah for a fetus is one ghurra, whether the fetus would have been a slave or free.
It is reported from Sa’id ibn al-Musayyab that the Messenger of Allah, peace and blessings be upon him, ruled that a ghurra must be paid for a child killed in its mother’s womb. The person against whom he issued this ruling said: “How can I be fined for a child that neither ate, drank, spoke, nor recited the declaration of faith? Such an injury should entail no punishment.” The Messenger of Allah, peace and blessings be upon him, said: “This sounds like the speech of a brother of soothsayers.” This is the ruling concerning the fetus of a Muslim mother. Regarding the child of a dhimmi mother, it is stated in Bidayat al-Mujtahid: Imam Malik, al-Shafi’i, and Abu Hanifah said that one-tenth of the mother’s diyah is due. Abu Hanifah, however, remained consistent with his principle that the diyah of a dhimmi and a Muslim are equal. Imam al-Shafi’i likewise remained consistent with his principle that a dhimmi’s diyah is one-third of a Muslim’s diyah. Imam Malik remained consistent with his principle that a dhimmi’s diyah is half that of a Muslim.
Who is liable for the ghurra
Imam Malik, his disciples, Hasan al-Basri, and the jurists of Basra said that it is due from the offender’s property. According to the Hanafis, al-Shafi’i, and the jurists of Kufa, however, it is imposed on the aqilah, that is, the paternal relatives. Since this is an unintentional offense, it is imposed on the paternal relatives. Jabir reported that the Messenger of Allah, peace and blessings be upon him, imposed the ghurra for killing a fetus on the offender’s aqilah, beginning with the mother’s husband and sons. In contrast, Imam Malik and Hasan said that if the blow was intentional, this diyah is like the diyah for intentional killing. The first view, however, is correct.
Who is entitled to the ghurra
The Malikis, al-Shafi’i, and others say that the heirs of the fetus receive its diyah, which is distributed among them according to their lawful shares of inheritance. Just as an ordinary diyah is transferable by inheritance, so too is this diyah transferable by inheritance. Some hold that the child’s mother receives it, since the fetus is like one of her limbs. Therefore, its diyah belongs exclusively to her.
Is kaffarah also obligatory?
The scholars agree that if the child is born and then dies, both diyah and kaffarah must be paid. But concerning whether kaffarah is also obligatory along with the ghurra when the child is born dead, Imam al-Shafi’i and others say that it is obligatory. In his view, kaffarah is obligatory for both intentional and unintentional killing or injury. According to Abu Hanifah, kaffarah is not obligatory, because this event more closely resembles an intentional offense, and in his view kaffarah is not required for an intentional offense. Imam Malik held that kaffarah is recommended.
No diyah is due before recovery
Imam Malik said: The agreed view among us is that in an erroneous or unintentional offense, no diyah becomes obligatory before the injured person has fully recovered and the wound has healed. If an offender unintentionally breaks a bone in a person’s hand, foot, or another part of the body, and the injured person subsequently recovers and returns to normal, no diyah is due. If some impairment remains, or if the injury falls under a category for which the diyah is reduced, then diyah is due in proportion to the remaining reduction. If the bone is one for which the Messenger of Allah, peace and blessings be upon him, specified a diyah, it must be paid according to the amount he specified. If it is not among those for which he specified a diyah, and no Sunnah or fixed diyah exists concerning it, the matter must be determined through ijtihad.
(According to Abu Hanifah’s school, no diyah is due when the injured person recovers and returns to normal, because no permanent harm occurred beyond the pain suffered. Pain alone cannot be assigned a monetary value. This is comparable to hurting someone’s feelings through rebuke or insult, for which no compensation is prescribed. Nevertheless, the insulter or rebuker does not escape punishment; ta’zir or qisas must be applied. According to Imam Abu Yusuf, the offender must pay some compensation for the emotional harm, to be determined by a just arbitrator. According to Imam Muhammad, the offender must pay the physician’s fee and the cost of medicine.)
When a body is found among warring groups
When a group of people engage in mutual conflict and a body is subsequently found among them, while the killer cannot be identified, a diyah must be paid. The Messenger of Allah, peace and blessings be upon him, said: “When people of a community throw stones at one another, strike one another with whips, or fight with sticks, and someone dies as a result, it falls under unintentional killing. The diyah for this killing is like the diyah for unintentional killing. But whoever is intentionally killed is subject to qisas. Whoever obstructs qisas for intentional killing will incur Allah’s curse and wrath. None of his voluntary or obligatory acts of worship will be accepted.”
The scholars differed concerning who is liable for the diyah.
Abu Hanifah said: If the heirs of the murdered person accuse no one other than the tribe in which the body was found, the diyah is imposed on that tribe. Imam Malik said: The diyah is imposed on those who were engaged in conflict with that tribe.
According to Imam al-Shafi’i, if the heirs accuse a particular person or group, the diyah is distributed among all of them through the qasamah procedure. Otherwise, there is neither qisas nor diyah.
Imam Ahmad said: If the heirs of the murdered person accuse a specific individual, qasamah is applied. Otherwise, the diyah is imposed on the paternal relatives of the others.
Ibn Abi Layla and Abu Yusuf said that the diyah is imposed simultaneously on both opposing groups. Al-Awza’i said: If evidence is found against someone other than the two opposing groups, qisas and diyah are imposed on that person. Otherwise, the diyah is imposed on both groups.
Killing after payment of the diyah
After the heir of the murdered person has accepted the diyah, it is no longer permissible for him to kill the killer. Abu Dawud narrated from Jabir ibn Abdullah that the Messenger of Allah, peace and blessings be upon him, said: “May the one who kills after accepting the diyah not have his wealth increased or become self-sufficient.” Al-Daraqutni narrated that the Messenger of Allah, peace and blessings be upon him, said: “The person who is killed or injured has three options for redress. If he seeks a fourth option beyond these, prevent him. The three options are: to seek qisas, to forgive, or to accept the diyah. After choosing any one of these three, if he transgresses, everlasting Hell awaits him.”
As for the person who then kills the killer, some scholars say that he is like the first killer. The heir may either kill him or pardon him, yet he will still face punishment in the Hereafter. Others say that he must be killed, and that the ruler may not give the heir the option to pardon him. Still others say that the matter is entrusted to the ruler, who will do what he deems appropriate.
When two combatants are killed in mutual combat
Imam Abu Hanifah and Malik said: If two combatants engage in conflict and both die, a diyah is due for each, and each one’s diyah is obligatory upon the paternal relatives of the other. Imam al-Shafi’i said: Each party owes half the diyah of the other, because each died as a result of both his own actions and those of his opponent.
Redress for harm caused by domestic animals
If an animal causes harm to someone with its hand, foot, or mouth, then according to Imam al-Shafi’i, Ibn Abi Layla, and Ibn Shubrumah, its owner must pay compensation. According to Imam Malik, al-Layth, and al-Awza’i, however, the rider or driver is not liable if he did not strike or otherwise provoke the animal. If he did cause it—for example, if one of them provoked the animal and it consequently destroyed something—he must compensate for what was destroyed. If the act is one for which qisas is obligatory and the provocation was intentional, qisas applies, because the animal was used as a weapon. If the provocation was unintentional, the diyah is obligatory upon the paternal relatives. If the destroyed item was property, compensation is paid from the offender’s own property.
Imam Abu Hanifah said: If, while a person is riding his animal, it kicks another person with its hind legs, no compensation is due. If it strikes with its front legs, the rider is liable, because he can turn it away from the front but cannot control it from behind. If, while driving an animal, its saddle, bridle, or load-bearing equipment falls from its back and injures someone, the driver must pay compensation. If someone is riding an animal and another person strikes or goads it, causing it to kick someone or to injure and kill someone while running away, the person who goaded it must pay compensation, not the rider. If the animal kicks and kills the one who provoked it, no one is liable, because he caused it himself. If it throws the rider off and kills him, the person who provoked the animal must pay the diyah. If an animal urinates or defecates while traveling on the road and someone slips on it, falls, and dies, no one is liable for the harm. The same ruling applies if the animal was tied up for urination or defecation and a similar incident occurred.
Redress for harm caused by an animal through its driver or rider
When an animal has a rider or driver and causes harm in that state, the rider or driver must bear liability for the compensation. When a person was trampled to death because someone drove his horse hard, Umar imposed a diyah on him. According to the jurists of the Zahiri school, neither the driver nor the rider is liable in this case, because the Messenger of Allah, peace and blessings be upon him, said: “The injury caused by an animal is without liability; a well is without liability; and a mine is without liability.” However, the Zahiri jurists may use this hadith as evidence only when the animal has no driver or rider. In that case, regardless of how much harm the animal causes, no one is liable for it by unanimous agreement.
Damage caused by a tethered animal
According to Abu Hanifah, when a tethered or confined animal causes harm, compensation must be paid. Tying it in a lawful place does not provide exemption from compensation. Nu’man ibn Bashir reported that the Messenger of Allah, peace and blessings be upon him, said: “Whoever ties an animal on a public thoroughfare or in a public marketplace, and it tramples or strikes someone with its foot or hand, must pay compensation.” —Al-Daraqutni.
Imam al-Shafi’i said: If the animal is kept in the manner in which it ought to be kept, no compensation is due. But if it is not kept properly, compensation must be paid.
Compensation for crops destroyed by livestock
According to the Malikis, al-Shafi’i, most Hijazi jurists, and most scholars, if livestock damages another person’s life or property during the day, the owner bears no liability for compensation. This is because the well-known custom is that, during the day, the owners of walls and gardens look after their gardens, while livestock owners allow their animals to roam freely during the day and bring them into the stalls at night. Whoever violates this custom fails to observe the customary rules of protection and engages in harmful conduct.
The foregoing rule applies only to livestock whose owners are not with them. As for animals accompanied by their owners, drivers, or riders, the owner, driver, rider, or the person in whose care the animals are must bear liability for the damage they cause, whether the animal causes it with its foot, hand, or mouth. As evidence for this view, Malik narrated that when the she-camel of al-Bara ibn Azib entered a man’s garden and caused damage, the Messenger of Allah, peace and blessings be upon him, ruled that garden owners are responsible for guarding their gardens during the day, while livestock owners must compensate for crop damage caused by their animals at night. According to the Maliki jurist Sahnun, this hadith applies in areas with walled gardens, such as Medina. In countries with open gardens and fields, animal owners must compensate for damage caused by their animals, whether it occurs by day or by night. The Hanafi jurists hold that when the owner is not with the animal, no one is liable for damage caused by it, whether by day or night, because the Messenger of Allah, peace and blessings be upon him, said: “The injury caused by an animal is without liability.” The Hanafis extend this ruling by analogy from an animal’s injury to all of its actions and consider all such actions free of liability.
If the animal’s owner is with it, one must determine whether he is driving it from behind, leading it from the front, or riding it. If he drives it from behind, he is liable for compensation in every case. If he leads it or rides it, he is not liable for compensation for harm caused by its mouth or front legs.
Most jurists support their view by saying that the hadith used as evidence by the Hanafi jurists is general and does not specify its field of application. It should be noted that this ruling applies to crops and grain in agricultural fields. Concerning other things, Ibn Qudamah said:
If an animal destroys something other than crops in a field, its owner is not liable, whether it occurs by night or by day, unless he had a role in causing the damage. If he did, the ruling is different.
It is reported concerning Shurayh that when a goat entered a man’s garden at night and caused damage, he ruled that compensation was due. As evidence, Shurayh cited verse 87 of Surah al-Anbiya, which mentions that when the flock of one people entered a farmer’s field at night and damaged it, David and Solomon, peace be upon them, required the flock’s owner to compensate him.
Al-Thawri said: Compensation is due even if it occurs during the day, because he acted excessively by letting the animal loose.
Our view, however, is that harm caused by an unreasoning animal is free of liability; the Messenger of Allah, peace and blessings be upon him, himself declared this. Therefore, no one is required to pay compensation in this case. The verse concerns animals roaming at night. That incident concerned crops in a field, which animals naturally destroy and seek to eat. They do not normally seek to eat other things. Therefore, it is not correct to place crops and non-crops under the same ruling.
Compensation for things destroyed by birds
Some jurists hold that bees, pigeons, roosters, hens, birds, and ducks are like four-legged animals. If someone domesticates them and releases them during the day, and they peck at and eat grains, no one is liable for this, since releasing them is customary. Some jurists hold that the person who releases them is liable for the damage and must pay compensation. Likewise, if someone trains a bird for hunting, such as a falcon, and it kills a person’s livestock or birds, compensation must be paid. This is the correct view.
Redress for harm caused by cats and dogs
It is stated in al-Mughni: Whoever raises and domesticates a biting dog and then lets it loose, allowing it to bite a person or animal or to tear a person’s clothing by biting it, must compensate for whatever harm the dog causes, because he exceeded proper limits in keeping the dog. If someone enters his house without permission and the dog bites him, the owner is not liable for compensation, because the intruder violated the rules of entering another’s home and caused the dog’s attack and bite. If he entered with the dog’s owner’s permission, the owner is liable for compensation, because he caused the harm. If the dog causes harm other than biting—for example, licking someone’s eating or drinking vessel or urinating or defecating—its keeper is not liable for that. Qadi said: If someone keeps a cat that eats the chicks of people’s domestic chickens and the like, he is liable for the cat’s damage, just as the owner of a biting dog is liable for damage caused by it. It makes no difference whether the damage occurs by day or by night. However, if causing such damage is not the cat’s habit, its owner is not liable, just as the owner is not liable when a dog that is not naturally prone to biting happens to bite someone. If a naturally biting dog or harmful cat is staying with someone without his intending to keep or domesticate it, and it causes harm to someone, that person is not liable, because the dog or cat itself caused the harm, not its owner.
Which animals may be killed and which may not
No animal may be killed except those that the Messenger of Allah, peace and blessings be upon him, ordered to be killed. They are: the crow, kite, chameleon, mouse, snake, scorpion, and biting dog. Animals that resemble these in harmfulness may also be killed, even if they do not attack, including the tiger, lion, hornet, and wasp. A’ishah said: “The Messenger of Allah, peace and blessings be upon him, ordered the killing of five wicked animals, whether within the Sacred Precinct or outside it: the crow, kite, scorpion, mouse, and biting dog.” (Al-Bukhari and Muslim.) Al-Bukhari and Muslim narrated from Umm Shurayk that the Messenger of Allah, peace and blessings be upon him, ordered the killing of the chameleon and called it a “wicked little creature.” No one is liable for killing these animals. Likewise, by unanimous agreement, killing other predatory animals and harmful insects is not blameworthy, no matter how domesticated they may be. However, if a cat is not aggressive or predatory, whoever kills it must pay its value. The woodpecker, ant, bee, and frog may not be killed, because they ordinarily cause no harm. Al-Nasa’i narrated from Ibn Amr that the Messenger of Allah, peace and blessings be upon him, said: “Whoever kills a sparrow or any bird larger than it without a valid reason, Allah will question him about it on the Day of Resurrection.” He was asked: “O Messenger of Allah, what is a valid reason?” He replied: “To slaughter it and eat it, not to cut off its head and throw it away.” If someone unjustly kills any of these, let him repent to Allah, but he owes no compensation. Ibn Abbas said: “The Messenger of Allah, peace and blessings be upon him, forbade killing four animals: the ant, bee, woodpecker, and surad, a particular bird.”
Harm for which there is no liability
If an oppressor is harmed while his oppression is being resisted, the harm is entirely free of liability. There is neither qisas nor diyah for it. Some examples follow:
1. When the biter’s teeth fall out: If a person bites another and the person being bitten attempts to resist, causing the biter’s teeth to fall out or his jaw to break and become dislocated, the person who resisted is not liable. He was not the aggressor. Al-Bukhari and Muslim narrated from Imran ibn Husayn: A man bit another man’s hand, and the latter pulled his hand from the biter’s mouth, causing the man’s two front teeth to fall out. Both parties then came before the Messenger of Allah, peace and blessings be upon him, for judgment. The Messenger of Allah, peace and blessings be upon him, said: “Would one of you bite the other as a bull bites? You are not entitled to any diyah for this.” Imam Malik said that diyah must be paid, but the hadith cited above refutes his view.
2. Looking into another person’s house without permission: If one unintentionally looks inside someone’s house through a doorway, hole, or any other opening, there is no sin in it. Muslim reports that the Messenger of Allah (peace and blessings be upon him) was asked: “What should one do if one’s glance suddenly falls upon something?” He replied: “Turn your eyes away.” Abu Dawud and al-Tirmidhi report that the Messenger of Allah (peace and blessings be upon him) told Ali (may Allah be pleased with him): “Do not look again after the first glance. The first glance is permissible for you, but the second is not.” If someone deliberately looks into the private quarters without the householder’s permission, the householder has the right to gouge out his eye, and no compensation may be claimed from him. Ahmad and al-Nasa’i narrated from Abu Hurayrah (may Allah be pleased with him) that the Messenger of Allah (peace and blessings be upon him) said: “Whoever looks inside another person’s house without his permission, and the householder gouges out his eye, shall receive neither diyah nor retaliation.” Bukhari and Muslim also report: “If someone looks into your house without your permission, and you throw a stone at him which destroys his eye, you bear no liability.” Sahl ibn Sa‘d said: A man was looking through a crack in the door of the Messenger of Allah (peace and blessings be upon him). The Messenger of Allah (peace and blessings be upon him) had a comb with which he was combing his head. He said to the man: “Had I known that you were looking, I would have struck your eye with this. Permission to enter was prescribed only to prevent people from looking.” It is on the basis of this hadith that al-Shafi‘i and the Hanbalis formulated their ruling. The Hanafis and Malikis, however, opposed it, saying: If a person looks inside a house without the householder’s permission, and the householder throws a stone or piece of wood at him and injures him, he must pay compensation. For even if someone enters his house, looks inside, or even commits an indecent act other than adultery with his wife, it is not lawful to destroy his eye or cause him any other harm. Such punishment is not prescribed for such misconduct. This contradicts all the authentic hadiths cited earlier. Ibn al-Qayyim deemed the first view preferable and said: These Sunnahs have been rejected on the grounds that they conflict with the principles of jurisprudence. It has been said that Allah permitted an eye to be taken for an eye, not for looking. Thus, if someone harms or troubles another with his tongue, his tongue may not be cut out; and if he eavesdrops on another’s secrets, his ear may not be cut off. It may therefore be said that these Sunnahs themselves constitute the supreme principle. Whatever contradicts them is what contradicts the principle. The statement, “Allah prescribed an eye to be taken for an eye,” is correct with respect to retaliation; but the case of an organ belonging to a transgressing criminal, whose harm and attack cannot be prevented except by striking it, is not addressed by the verse, either affirmatively or negatively. When the Qur’an remained completely silent on this matter, the hadith established its ruling. This is not a ruling contrary to the Qur’an. It is entirely different from destroying or gouging out an eye as retaliation. Likewise, it differs from repelling an attacker, which can be done by the easiest possible means. The purpose is to prevent the harm of his malicious scheme. If this can be accomplished with a stick, it may not be repelled with a sword. But the person who has transgressed by looking at something unlawful, while it is impossible to restrain him from doing so, has committed the act secretly and by peeping. Thus his case differs from that of an attacker and criminal whose attack has not yet been carried out. Perhaps this act cannot occur except secretly. In such a situation, if the person being observed were burdened with proving the observer’s crime, that would clearly be impossible for him. And if he were ordered to prevent it by the easiest means, then the observer would face no punishment for looking toward him and into his private quarters.
Islamic Shariah is a comprehensive system that rejects both of the aforementioned approaches. In its view, the best, safest, and most effective measure for us and for the offender is the one mentioned in the hadith—one that has not been opposed anywhere and against whose authenticity there is no evidence. In fact, that measure is to throw stones, or whatever is available there, at him. If a person was not looking transgressively, throwing pieces of stone and the like will not harm him. But if he was looking, he himself must blame himself for whatever harm occurs, because he himself brought it upon himself. The one who threw the stone has not wronged him. Rather, the person who secretly looks into another’s private quarters is the wrongdoer and betrayer. When someone’s honor has been violated in this way, the complete and mighty Shariah of Islam cannot deprive him of the right to take revenge even after proof of this wrongdoing has been established. Indeed, Allah has judged matters according to the Shariah He revealed to His Messenger. For the believers, there is no judgment better than Allah’s judgment.
3. Killing to protect life, property, and honor: Whoever kills a person or an animal to protect his own or another’s life, property, or honor bears no punishment or liability for compensation. Preventing harm to life and property is obligatory. If it is impossible to prevent the harm without killing, then killing the aggressor is lawful for him. If he kills him, the killer bears no sin.
Muslim reports from Abu Hurayrah (may Allah be pleased with him): A man came to the Messenger of Allah (peace and blessings be upon him) and said: “O Messenger of Allah, what should I do if someone comes to take my property by force?” The Messenger of Allah (peace and blessings be upon him) said: “Do not give him your property.” He asked: “What if he comes at me intending to kill me?”
The Messenger of Allah (peace and blessings be upon him) said: “Then attack him and fight to kill him.” He asked: “What if he kills me?” The Messenger of Allah (peace and blessings be upon him) said: “Then you are a martyr.” He asked: “And what if I kill him?” The Messenger of Allah (peace and blessings be upon him) said: “He will be in Hell.”
Ibn Hazm said: If someone seeks to seize another person’s property unjustly, whether he is a highway robber or anyone else, and it is possible to restrain and repel him, then it is not lawful to kill him. If he is killed in that situation, retaliation will be imposed on the killer. But if there is even the slightest fear that the robber will kill him without giving him any opportunity, then he should kill him. He will bear no liability, because he has merely defended himself.
4. Claiming that one killed in self-defense: When a killer claims that he killed the deceased to protect his own life, property, or honor, if he can produce evidence or witnesses supporting his claim, it will be accepted, and retaliation and diyah will be waived. If he cannot provide evidence supporting his claim, it will not be accepted, and his fate will be placed in the hands of the deceased’s heirs. If they wish, they may pardon him; otherwise, they may demand retaliation. For unless he can prove his innocence, he will certainly be deemed guilty.
When Ali (may Allah be pleased with him) was asked about a man who found a strange man with his wife and killed them both, he said: If he cannot produce four witnesses—according to another view, two witnesses—he will be handed over to the heirs of the deceased so that they may kill him. If the killer produces no witnesses, but the heir acknowledges that he killed in self-defense, then he will be free of liability and will owe neither retaliation nor diyah.
Sa‘id ibn Mansur relates: One day Umar (may Allah be pleased with him) was eating lunch when a man suddenly came running to him. He still had a bloodstained sword in his hand, and a group of people was running after him. The man came and sat beside Umar (may Allah be pleased with him), and the others arrived as well. They said: “O Commander of the Believers, this man has killed one of our men.” Umar said to him: “What are they saying?” He replied: “O Commander of the Believers, I merely struck my wife across both thighs with a sword. If someone was between her thighs, then I killed him.” Umar said to them: “What does he say?” They replied: “O Commander of the Believers, he struck with a sword, and the blow fell upon the man’s body between the woman’s thighs.” Immediately Umar took the sword from the man with his own hand, brandished it, and returned it to him, saying: “If they repeat such an act, you should kill again.”
It is narrated that one day Ibn al-Zubayr (may Allah be pleased with him) fell behind the army, and he had a slave woman with him. Two men came to him and said: “Give us something.” He gave them some food. They both said: “Give us the slave woman.” He immediately killed them both with a single stroke of his sword.
Ibn Taymiyyah said: If a killer claims that the deceased attacked him, and the deceased’s heirs deny it, then if the deceased was known to be a righteous person and the killer unquestionably killed him, the killer’s statement will not be accepted. But if the deceased was known as a sinner and the killer was known as a righteous person, then whatever the killer says under oath will be accepted, especially if he was already known for this before the incident.
5. Liability for damage caused by fire: If someone lights a fire at home in the usual manner, but the wind carries the fire from place to place and it causes extensive damage to life and property, he will not be liable for it.
It is narrated that a man lit a fire for his own need. A portion of the fire then flew to a neighbor’s house and damaged some of his property. The injured man wrote to Abd al-Aziz ibn Husayn informing him of the incident. Abd al-Aziz replied: The Messenger of Allah (peace and blessings be upon him) said: “An animal incapable of speech is free of liability.” I believe that fire is likewise free of liability.
6. Destroying another person’s crops: If someone, while irrigating his own field, uses more water than normally required and the crops of an adjoining field are destroyed as a result, he will be liable. But if a flood comes from an unknown place, he will not be liable for it, because no excess was committed on his part.
7. Liability for the sinking of a boat: If a boat sinks while carrying people and animals across, and its owner had no direct involvement in causing it, he will not be liable for the loss. But if he caused the sinking of the boat, he will be liable.
8. The liability of a physician: The scholars unanimously agree that if someone with no knowledge of medicine treats a patient and causes harm, he will be liable for the harm caused to that patient and must pay compensation. By undertaking this act, he is considered a transgressor, and compensation will be recovered from his property. The Messenger of Allah (peace and blessings be upon him) said: “Whoever practices medicine despite not previously being known as a physician will be liable.” —Abu Dawud and al-Nasa’i.
Abd al-Aziz, the son of Umar ibn Abd al-Aziz, said: A member of a delegation that came to my father told me that the Messenger of Allah (peace and blessings be upon him) said: “Whoever treats a people despite not being known previously to have practiced medicine, and causes harm to a patient, must pay compensation.” (Abu Dawud) However, if a physician makes a mistake despite being proficient in medicine, the jurists hold that diyah must be paid. According to most jurists, the physician’s agnate relatives will pay the diyah. (If the patient dies, diyah rather than retaliation must be paid, because the treatment was performed with the patient’s permission.) Others say that the diyah will be paid from the physician’s own funds. This obligation to pay compensation points to the necessity of ensuring the safety of human life, making physicians conscious of their responsibility, and taking precautions in their public-health activities. Imam Malik, on the other hand, says that he need not pay any compensation.
9. If the wife’s vagina is torn and widened through intercourse with her husband: If a man tears and widens his wife’s vagina during intercourse, and the wife is an adult with whom intercourse is ordinarily possible for a woman of her age, no compensation is due. This is the view of Imam Abu Hanifah and Ahmad; according to al-Shafi‘i and Malik, diyah is due. According to Malik’s more well-known view, however, the matter will be decided by arbitration. If she is an underage girl with whom intercourse is not ordinarily possible for a girl of her age, diyah is obligatory. It should be noted that this ruling applies only when the vagina is torn so that it becomes joined to the anus, with no barrier remaining between the two organs.
10. When a wall collapses on someone and causes his death: If someone’s wall collapses toward the road and a person dies beneath it, it must be determined whether the wall had already become inclined and whether its owner had been told to demolish it. If he had been told and, despite having the ability, failed to demolish it, he will be liable for the damage caused by the collapse. Otherwise, he will not be liable. This is the view of the Hanafi school. According to Imam Malik, if the wall had become so inclined that demolishing it was considered unsafe, its owner will be liable for the damage whether or not he had previously undertaken to demolish it and whether or not he had arranged for witnesses to attest to its condition. Ahmad and al-Shafi‘i hold that he will not be liable.
11. The liability of one who digs a well and other matters: If someone digs a well and a person falls into it and dies, then if he dug it on land he owns, or on someone else’s land with the owner’s permission, he will not be liable for the harm. If he dug it on another person’s land without the owner’s permission, he will be liable. If he dug it on abandoned land, he will not be liable, because the Messenger of Allah (peace and blessings be upon him) said: “A well is free of liability.” That is, if someone falls into a well in such circumstances and dies, the death entails neither liability nor diyah. Imam Malik said: If he digs a well in a place where digging wells of that kind is customary, he will not be liable. But if he violates customary practice in digging it, he will be liable. If someone orders an adult, sound-minded person to descend into a well or climb a tree, and the person obeys and then drowns in the well or falls from the tree and dies, the person giving the order will not be liable for his death, since he did not compel him. Likewise, if a government official or person in charge hires someone for wages and he dies while performing the work, the official will not be liable, because he committed no crime or legal violation. If someone entrusts himself or his child to a swimming instructor to learn swimming and then drowns and dies, the swimming instructor will not be liable.
Permission to Take Foodstuffs
Most scholars hold that it is unlawful to milk another person’s animal without the owner’s permission. However, in cases of severe hunger, when there is no alternative and the owner is absent, he has the right to milk it and may drink the milk. But he must pay its value to the owner. The same applies to other foodstuffs and fruit hanging on trees, because dire necessity does not annul another person’s rights.
Ibn Umar (may Allah be pleased with him) narrated that the Messenger of Allah (peace and blessings be upon him) said: “None of you should ever milk another person’s animal without his permission. Would any of you like someone to enter his house, break open his storehouse, and take away his food? The udders of their livestock are their food stores. Therefore, no one should ever milk another person’s animal without his permission.” —Muwatta of Imam Malik.
Imam al-Shafi‘i said: He will not be obliged to pay its value, because dire necessity removes liability. The Shariah has granted permission in this matter. It is not possible for something to be permitted while compensation for it is nevertheless obligatory.
Qasamah, or the Collective Oath
When a murdered body is found in a locality and it is impossible to identify the killer, the qasamah, or collective oath, will be conducted among the group within that locality in which the killer is presumed to be present and outside which he apparently could not have been, and among whom there are indications of involvement in the killing. For example, the deceased may be found surrounded by an enemy group with no one else among them; or a group of people may be present in a house or open field but at a distance from the deceased; or the body may be found at one end while a person nearby is seen stained with the victim’s blood. If the deceased is found in a city, on one of its roads, or on its outskirts, the qasamah will be conducted among the inhabitants of that city. If the body is found between two cities or localities, the qasamah will be conducted among the inhabitants of whichever locality is nearer to the body.
The procedure of qasamah is that the deceased’s heir selects fifty people from the city or locality and makes them swear: “By Allah, we did not kill him, nor do we know who killed him.” If they take the oath, liability for the diyah is removed from them. If they refuse to take the oath, diyah becomes obligatory upon all the inhabitants of the city. If the matter remains mysterious and unresolved, the diyah will be paid from the public treasury.
Qasamah: An Arab Custom Retained by Islam
Qasamah was a custom practiced in Arabia during the Age of Ignorance. Islam retained it in its proper form. The reason Islam retained it is that it reflects vigilance in safeguarding human life, so that the killing of even one person does not go without judgment or punishment.
Bukhari and al-Nasa’i narrated from Ibn Abbas: The first incident of qasamah in the Age of Ignorance was as follows. A man from Banu Hashim was hired as a worker by a man from another, relatively small Qurayshi tribe. He set out with that man’s herd of camels. At that time, another man from Banu Hashim was passing by. The handle of the man’s bundle of wool had come loose. He said: “Help me with a length of rope so that I can tie the handle of my bundle of wool. If one rope is missing, your herd of camels will not be able to escape.” Later, when they stopped to rest, it was found that all the camels were tied with ropes except one. His employer asked him: “What happened to this camel that it was not tied like the others?” He replied: “It has no rope.” The master asked: “Where is its rope?” … Then he struck him with a stick, and that blow brought him near death. At that time, a man from Yemen was passing by. The injured man asked him: “Will you take part in the coming Hajj season?” He replied: “I will not take part this time, though I may do so later.” The injured man asked: “Can you convey a message from me at any time?” He replied: “Yes, I can.” He said: “When you attend Hajj, first call out, ‘O Quraysh!’ When Quraysh responds, call out, ‘O Banu Hashim!’ When Banu Hashim responds, seek Abu Talib and tell him: ‘So-and-so killed me over a rope.’” Then the Hashimi worker died.
When the worker’s employer arrived, Abu Talib asked him: “What is the news of such-and-such man from our clan?” He replied: “He became ill. I cared for him properly, and when he died I arranged his burial.” Abu Talib said: “What you did was indeed appropriate for him.” He then waited for some time. Afterward, the Yemeni man to whom the worker had entrusted his message arrived during the Hajj season. He called: “O Quraysh!” They replied: “Here we are, Quraysh, present.” He then called: “O Banu Hashim!” Banu Hashim replied: “Here we are, Banu Hashim, present.” He asked: “Where is Abu Talib?” They pointed him out and said: “This is Abu Talib.” He said: “So-and-so asked me to convey this plea to you: such-and-such camel owner killed him over a single rope.” Abu Talib immediately went to him and said: “Choose any one of three measures from us. If you wish, you may pay one hundred camels, because you killed one of our men. Or, if you wish, fifty men from your tribe will swear that you did not kill him. If you accept neither, the third measure is that we will kill you.” Abu Talib then went to that tribe. The tribe said: “We will take the oath.” Thereafter, a woman from Banu Hashim came to Abu Talib. She was the wife of one of the men of that tribe and had borne him a son. She said: “O Abu Talib, I want my son to take the place of one of the tribe’s fifty men—that is, to pay the amount of diyah corresponding to one man’s share—and not wait for the oath.” The boy did so. Then one of the tribe’s men came to Abu Talib and said: “O Abu Talib, I want fifty men who will take the oath in exchange for one hundred camels, so that each person’s share will be two camels. Here are two camels. Accept these from me, and do not wait for my oath.” He accepted the two camels. Then forty-eight men came and all took the oath. Ibn Abbas (may Allah be pleased with him) said: “By Allah, a year had not passed before all forty-eight of those men had died.”
The Shariah Status of Judging and Deciding Cases on the Basis of Qasamah
The jurists have differed on this matter. Most jurists hold that judgment and decision on the basis of qasamah is obligatory. Another group says that it is not permissible to judge on its basis. Those who hold it obligatory include Malik, al-Shafi‘i, Abu Hanifah, Ahmad, Sufyan, Dawud, and their disciples. Those who hold it impermissible include Salim ibn Abdullah, Abu Qilabah, Umar ibn Abd al-Aziz, and Ibn Ulayyah. Those who hold judgment on its basis obligatory rely, as evidence, on the hadith narrated by Huwayyisah and Muhayyisah, which is authentic. The evidence of the opposing side that it is impermissible is that qasamah contradicts principles of the Shariah on which there is consensus. One fundamental principle is that it is not permissible to swear about something without definite knowledge of it or sensory perception of it. In that case, how can those who did not see the deceased take an oath? It may even happen that the deceased is in one city while those taking the oath are in another.
For this reason, Bukhari narrated from Abu Qilabah that one day Umar ibn Abd al-Aziz permitted people of every class to come into his court. They all came. He then said: “What is your view concerning qasamah?” Everyone remained silent for a moment and said: “It is permissible to impose retaliation on the basis of qasamah. The caliphs have imposed retaliation through it.”
Umar ibn Abd al-Aziz said: “O Abu Qilabah, what is your view?” I replied: “O Commander of the Believers, leading Arab personalities and commanders are present before you. Suppose fifty people testified against someone that he had committed adultery in Damascus, although they had not seen him. Would you stone him?” He said: “No.” I said: “If fifty people came to you and testified that he had stolen in Hims, although they had not seen him steal, would you cut off his hand?” He said: “No.” Consequently, Umar ibn Abd al-Aziz issued a decree concerning qasamah: If they bring two upright witnesses that such-and-such a person killed him, then impose retaliation; otherwise, retaliation will not be imposed on the basis of the testimony of fifty oath-takers.
Another principle is that an oath has no effect in matters involving bloodshed. A further principle is that the claimant bears the responsibility of producing evidence, while the defendant, if he denies the claim under oath, must take an oath. They also argue that in those hadiths they do not find that the Messenger of Allah, peace and blessings be upon him, ordered the qasamah. It was a practice of the Age of Ignorance. Later, the Messenger of Allah, peace and blessings be upon him, adopted a lenient approach toward the people in order to show them that adding the qasamah to the fundamental principles of Islam was not essential. Therefore, he said to the claimants of the blood-money—that is, the Ansar: “Will you make fifty people swear an oath?” They said: “How can we swear an oath when we did not witness it?” The Messenger of Allah, peace and blessings be upon him, said: “Then shall the Jews swear an oath on your behalf?” They said: “How can we accept the oath of a group of unbelievers?”
Thus, if taking an oath had been a Sunnah and they had refused to swear, the Messenger of Allah, peace and blessings be upon him, would have told them, “It is a Sunnah.” Therefore, since these hadiths are not regarded as conclusive evidence for judging on the basis of qasamah, and are taken as evidence for qasamah only through interpretation and analysis, it is more reasonable and preferable to interpret them, through analysis, as supporting the established principles of the Shariah. On the other hand, those who advocate qasamah—Imam Malik being especially notable among them—hold that qasamah itself is an independent Sunnah, capable, like all other Sunnahs, of restricting and conditioning the fundamental principles. They also hold that its primary purpose is to create awareness aimed at safeguarding human life. For when murders become widespread, and the murderer usually seeks a hidden place and time in which to commit the crime, the lack of witnesses becomes acute; it was then that this Sunnah was instituted to safeguard life. However, this reasoning applies primarily to theft and highway robbery, since it is difficult to find witnesses to the crimes of thieves and bandits. For this reason, despite its being contrary to the fundamental principle, Imam Malik held that the testimony of those whose property had been seized was admissible against the highway robber. Since those whose property was seized are the claimants in the robbery case, they cannot, according to the fundamental principle, be witnesses, because it is invalid for the same person to be both claimant and witness. —Bidayat al-Mujtahid.
Nineteenth Chapter: Ta’zir
1. Definition of Ta’zir
In the terminology of the Shariah, ta’zir means punishing and humiliating a person, for an offense he has committed, with the aim of reforming and admonishing him.
The purpose of ta’zir in the Shariah is to punish a person for a sin for which there is neither kaffarah nor a prescribed hadd. In other words, it is a corrective punishment imposed by a ruler—one who follows Islamic principles, implements its laws and regulations, and enforces its prescribed punishments—for a criminal offense (whose punishment is generally execution, imprisonment, or imprisonment with hard labor), or for some sinful act for which the Shariah has prescribed no punishment, or for which it has prescribed a punishment but the conditions for enforcing that punishment have not been fulfilled. Examples include intercourse somewhere other than the sexual organ, stealing an item that does not warrant amputation of the hand, committing a criminal offense for which there is no qisas, intercourse between women, and falsely accusing someone of an offense other than adultery. It should be noted that offenses are of three kinds: 1. An offense for which there is a specified punishment but no kaffarah, such as the punishments discussed earlier. 2. An offense for which there is a kaffarah but no prescribed punishment, such as intercourse with one’s wife during the daytime in Ramadan and intercourse with one’s wife while in a state of ihram. 3. An offense for which there is neither kaffarah nor a prescribed punishment, such as the sinful acts mentioned above.
Ta’zir is obligatory for these offenses.
2. The Shariah Basis of Ta’zir
Its Shariah basis is the hadith narrated by Abu Dawud, al-Tirmidhi, al-Nasa’i, and al-Bayhaqi: “The Messenger of Allah, peace and blessings be upon him, imprisoned [the slanderer] in the incident of slander.” This imprisonment was precautionary or preventive, and its purpose was to uncover the truth. Al-Bukhari, Muslim, and Abu Dawud also narrated that the Messenger of Allah, peace and blessings be upon him, said: “Do not administer more than ten lashes for any matter other than a hadd prescribed by Allah.”
It is established that Umar, may Allah be pleased with him, administered ta’zir by shaving heads, exile, and beating. He also burned the shops and gathering places of those who drank wine, as well as the settlement where wine was sold. In Kufa, he burned the palace of Sa’d ibn Abi Waqqas because Sa’d kept himself away from the people. He used to walk carrying a whip and would beat anyone whom he considered deserving of beating. He used a house as a prison. He beat a professional mourner so severely that her hair came loose. —Ighathat al-Lahfan, Ibn al-Jawzi.
According to Imam Abu Hanifah, Malik, and Ahmad, ta’zir is obligatory for offenses that the Shariah makes liable to ta’zir. According to Imam al-Shafi’i, it is not obligatory.
3. The Rationale for Ta’zir in the Shariah and the Difference between Ta’zir and Hudud
Islam instituted ta’zir in order to teach manners to sinners and violators of discipline. Thus, its rationale and purpose are exactly the same as those of hudud. However, it differs from hudud in three respects.
1. Hadd applies equally to all people. Ta’zir varies according to people’s class and status. If a respected person commits a lapse, it is permissible to forgive him. If he is punished, the punishment should be lighter than that imposed for a similar lapse by people of a lower class and status.
Ahmad, Abu Dawud, al-Nasa’i, and al-Bayhaqi narrated that the Messenger of Allah, peace and blessings be upon him, said: “Forgive the lapses of respected people except in cases involving hudud.” That is, when a person who is not known to be wicked commits a lapse, or commits a minor sin, or even commits an intentional sin but it is his first offense, do not punish him for it. If punishment is unavoidable, it is preferable that it be light.
2. In cases involving hudud, no intercession is permissible once the case has reached the court. In ta’zir cases, however, intercession is valid.
3. If the offender dies as a result of ta’zir, compensation must be paid. Umar ibn al-Khattab, may Allah be pleased with him, frightened a woman severely, causing her abdomen to contract in terror and her to give birth to a stillborn child. He therefore bore responsibility for her diya. (In such a case, some hold that the diya must be paid by the Bayt al-Mal, while others hold that it must be paid by the offender’s agnatic relatives.) According to Abu Hanifah and Malik, no compensation is required, because in this case ta’zir and hadd are the same.
4. Methods of Ta’zir
Ta’zir may be carried out through words alone, such as reprimand, censure, and admonition. It may also be carried out through actions, as circumstances require, such as beating, imprisonment, detention, exile, and dismissal from office.
Abu Dawud narrated that an effeminate man was brought before the Messenger of Allah, peace and blessings be upon him. His hands and feet were dyed with henna. The Messenger of Allah, peace and blessings be upon him, said: “What is the matter with him?” The people said: “He imitates women in his appearance.” The Messenger of Allah, peace and blessings be upon him, immediately exiled him to al-Naqi’. The people said: “O Messenger of Allah, shall we kill him?” He said: “I have been forbidden to kill those who pray.” However, it is not permissible to administer ta’zir by shaving the beard, demolishing houses, destroying the trees of orchards, the crops of fields, and the like. Nor is it permissible by cutting off the nose, ears, lips, fingers, and so forth, because no such report has been transmitted from any Companion.
5. Administering More Than Ten Lashes
A hadith was mentioned earlier to the effect that more than ten lashes may not be administered. Ahmad, al-Layth, Ishaq, and a group of Shafi’i jurists follow this hadith. Malik, al-Shafi’i, Zayd ibn Ali, and others, however, have permitted more than ten lashes, provided that they never reach the minimum measure of a hadd. Another group holds that, in administering ta’zir for a sinful act, the punishment may not equal the hadd prescribed for that act; in the case of theft from an unprotected place, it may not equal the punishment of hand amputation; and for an insult that does not amount to an accusation of adultery, it may not equal the hadd for slander. Some say that the ruler should exercise ijtihad in determining the extent of ta’zir and prescribe punishment in proportion to the greater public benefit and the degree of the offense.
6. Ta’zir by Execution
Some scholars hold that ta’zir by execution is permissible, while others hold that it is impermissible. Citing Ibn Taymiyyah, Ibn Abidin says: “According to the Hanafi principle, when offenses whose punishment is not execution—such as murder with a blunt and heavy weapon and male homosexual intercourse—are committed repeatedly, the ruler may execute the offender or, if he considers it beneficial, impose a punishment greater than the prescribed amount.
7. Ta’zir through Confiscation of Property
According to Abu Yusuf and Malik, ta’zir through confiscation of property is permissible. The book Mu’in al-Hukkam states: “Those who say that financial penalties have been abrogated are mistaken according to the doctrine of the imams. They are mistaken both in light of reason and in light of transmitted reports. Those who claim abrogation have neither a Sunnah nor a consensus that proves their claim correct. All they can say is: It is not permissible according to our imams. Ibn al-Qayyim said: The Messenger of Allah, peace and blessings be upon him, administered ta’zir to a highway robber by depriving him of his due share, and administered ta’zir to one who refused to pay zakat by confiscating half of his property. According to the reports of Ahmad, Abu Dawud, and al-Nasa’i, the Messenger of Allah, peace and blessings be upon him, said: ‘Whoever pays zakat seeking reward will receive reward, but whoever refuses to pay zakat, we will take it from him and, in addition, take half of his property. This is a firm and uncompromising decision from Allah.’”
8. Ta’zir Is the Ruler’s Prerogative
Ta’zir falls within the ruler’s responsibility, because he has supreme authority over the people. The book Subul al-Salam states: “No one other than the ruler has the authority to administer ta’zir, except for three persons:
1. The father: He may administer ta’zir, that is, punish his minor child for the purpose of education, and may sternly reprimand him to turn him away from wrongdoing. The mother also has this right while raising and caring for the child during infancy and childhood. She may strike him to command him to pray. Once the son reaches adulthood, the father may not administer ta’zir to him, even if he is foolish.
2. The master: A person may administer ta’zir to his subordinate in order to uphold his own rights and the rights of Allah.
3. The husband: The husband has the right to administer ta’zir to a disobedient wife. The Quran has given an unequivocal command concerning this matter. If rebuking her for abandoning prayer is not sufficient, the husband may strike her, because this falls within the duty of rejecting and preventing wrongdoing. The husband is one of those entrusted with the duty of preventing wrongdoing by hand, by tongue, and in the heart. A teacher has the right to punish male and female students.
9. Compensation for Ta’zir
When a father punishes his child, he is not required to pay compensation. Likewise, when a husband punishes his wife, he is not required to pay compensation. Similarly, when a ruler punishes a subject without exceeding the limit and without imposing more punishment than is needed to achieve the purpose, he is not required to pay compensation. If any of them exceeds the limit or goes to excess, he must compensate for the harm caused by that excess.
Sayyid Sabiq
Fiqh al-Sunnah
Volume 2