It's been over seven months, with 45,000+ civilians killed in P41estine the majority of whom are women and children. Similarly with Muslims worldwide (Burma, Kashmir, Uygurs in East Turkestan etc..), and the silence of "Muslim" rulers is deafening. The only solution is for Muslims to mobilize their armies and unite under a single umbrella of Khilafah, which is the promise of Allah SWT. If you are in a position of power, please raise your voice. If you can't do much, please consider donating to Palestine Red Crescent Society or any other charity organisations which you truly trust, JazakAllah khairan.

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Social System

Social System (23)

Many people overstep the mark and apply the term 'social system' to all systems of life. This is an erroneous application; given that the systems of life befit more to be called the 'systems of society' since in reality that is what they constitute, as they organise the relationships which arise between a people living in a particular society regardless of their meeting or dispersing. The meeting of people is not considered, what is noted is only the relationships (‘Alaqat). Consequently, they will be diverse and differ according to the different relationships. They include economics, ruling, politics, education, penal code ('Uqubat), societal transactions (Mu’amalat) and the rules of (testimonial) evidences (Bayyinat) etc.

Thus, the application of the term 'social system' to all of these relationships is meaningless and inapplicable. Besides, the word 'social' is a description of a system, thus the subject matter of this system should be the organisation of the problems arising from the meeting (of people) or the relationships that arise from people meeting together. The meeting of a man with a man and a woman with a woman does not require a system because no problems arise from it, nor do relationships arise which require a system. Only the organisation of their interests requires a system in view of the fact that they live in the same country even if they did not meet. As for the meeting of a man with a woman and vice versa, it is from this meeting that problems and relationships arise which need to be organised by a system. Thus, this meeting (Ijtima') befits more to be designated as the social system, because in reality it is this system which organises the meeting between men and women, and the relationships which arise from such meetings. That is why the social system is confined to the system which demonstrates the organisation of the woman's meeting with the man and vice versa, and organises the woman's relationship with the man and vice versa. Thus the social system addresses the relationships that result from men and women meeting and not from their interests (Masalih) in society, and it clarifies all that branches out from this relationship. Thus, trade between men and women pertains to the systems of society and not to the social system, because it falls within the economic system. As for the prohibition of (Khalwa) seclusion between men and women, or when a woman has the right to instigate divorce for herself, or who has the right of custody for a child, all of these issues pertain to the social system. Therefore, the social system is defined as: the system which organises the meeting of a man with a woman and vice versa and organises the relationship which results from their meeting and all that branches out from this relationship.

Peoples' conception, especially the Muslims, of the social system in Islam became extremely confused. Their understanding became far removed from the reality of Islam due to their alienation from its thoughts and rules. They went to the extreme, holding the view that a woman has the right to be in seclusion (Khalwa) with a man as she wished, or that she can go out with her 'Awrah uncovered wearing whatever she pleased. Others went far to the other extreme taking the view that women do not have the right to practise trade or meet with men under any circumstances, and viewed the whole of the woman's body as 'Awrah including the hands and face. Due to this extremism there was degeneration of morals and a stagnation of thinking (Tafkeer). The results of all this has been the break up of the social aspect, unrest within the Muslim family, the prevalence of dissatisfaction and discontent amongst family members, and numerous disputes and divisions between its individuals.

The need to unite the family and to ensure its happiness was felt by all Muslims, and the search for a solution to this serious problem occupied the minds of many people. Different attempts of various sorts appeared to present such solutions. Many books were written demonstrating the societal solution and amendments were made to the laws of the Shari'ah courts and electoral systems. Many tried to apply their views on their families in terms of their wives, sisters and daughters. Changes were made to the school system with regards to the mixing of boys and girls. Thus, these attempts continued to appear in these and similar guises. However, none of them could succeed in finding a solution, or come with a system or find a method to implement what they conceived as reform (Islah). This is because the issue of the relationship between the two sexes became obscure in the minds of many Muslims. They were unable to comprehend the way in which the two genders can co-operate with each other, even though the well being (Salah) of the Ummah stems from this co-operation. They were completely ignorant of the thoughts and rules of Islam, which relate to the meeting of the man and the woman. This led them to discuss and debate over the means of treatment, avoiding the study of its reality, until as a consequence of their attempts anxiety and confusion increased. A chasm began to exist in society due to which grew a concern for the entity of the Islamic Ummah, in its capacity as an Ummah with distinct characteristics. It was feared that the Muslim household would lose its Islamic character, and the Muslim family would lose the guidance of the thoughts of Islam, and stray from valuing its rules and thoughts.

As for the cause of this confusion, and deviation from the correct understanding, it is attributable to the crushing onslaught of Western culture. Western culture completely dominated our thinking, tastes (Dhawq), changed our concepts (Mafahim) about life, the criteria (Maqayees) for things and our convictions (Qana'at) which used to be deep rooted within us, such as our concern for Islam and our veneration for the things we hold to be sacred. Thus, the victory of western culture over us was comprehensive - encompassing all sectors of life amongst which was the social aspect.

This happened because when the western culture emerged in Muslims countries, together with its material forms and materialistic advancements, many were dazzled by it. Consequently they tried to adopt this culture because those material forms, produced by the followers and advocates of this culture, were seen as a sign of progress. That is why they tried to imitate western culture without distinguishing between this western culture and its material forms. They did not comprehend that culture constitutes a set of concepts about life and a specific way of living while civilisation (Madaniyya) denotes the material forms, or tangible objects, in life, irrespective of concepts about life or the way of living. They did not realise that western culture was founded upon a basis which contradicts the basis of Islamic culture, and that it differs from the Islamic culture in its perspective about life and its understanding of happiness (Sa'ada), for which man strives to achieve. The inconceivability of the Islamic Ummah taking from western culture was not apparent to them. Nor was the fact that it is not possible for any community of the Islamic Ummah, in any country, to adopt this culture and remain part of the Islamic Ummah or to continue to be described as a Muslim community.

Their lack of awareness of the intrinsic difference between the Islamic and Western cultures led to transference and imitation. Many Muslims attempted to transfer western culture without understanding it, like the one who copies a book restricting Himself just to the writing of words and letters. Some began to imitate western culture by adopting their concepts and criteria without reflecting on the effects and consequences of such adoption. These people noticed that women in western societies stood alongside men without differentiation and without concern for the consequences that would entail. They also noticed that the material forms were manifested in western woman and she manifested them, so they imitated her or tried to imitate her without realising that these forms agreed with the western culture, its concepts about life, and its depiction of life which contradict with the culture of Islam, its concepts about life, and its depiction of life. They did this without the slightest consideration for what these forms manifested in her and by her, and what they entailed in terms of issues. Yes, they witnessed this and consequently believed that Muslim women should stand alongside men in society and meet with them, regardless of the consequences. They thought that western material forms should be manifested in Muslim woman, and she should manifest western material forms, irrespective of what they entailed in terms of problems and issues. Therefore, they called for securing the personal freedom of Muslim woman and granting her the right to do whatever she wished. As a result of this they called for the mixing of men and women even when a need did not exist, and they called for women to reveal their charms (Tabarruj) and beauty (Zeena), and for women to take up positions of ruling. They viewed this as progress and as a sign of revival.

What made things worse was that the imitators gave themselves complete free reign over personal freedom, until a woman would directly contact a man just for the sake of contact and for the enjoyment of personal freedom. This was without a reason which necessitated contact, and without the need in society for such mixing. This contact between the sexes was made for the sake of socialising and merely for the enjoyment of personal freedom. The evil effect that this faction of imitators who embarked on applying such ideas had was that the relationship between a man and a woman became solely restricted to a male-female relationship. The evil effect of this faction, spread to the other factions in society. This contact did not produce any form of co-operation between men and women in any sector of life. On the contrary what resulted from it was moral degeneration, such as women displaying their charms and adornment to people other than their husbands or mahram men. Amongst Muslims other results were the deviation from the correct way of thinking, corruption in their taste, mistrust and destruction of the criteria (for actions). The social aspect in the West was taken as the ideal model and western society was taken as a benchmark (Miqyas) without considering the fact that western society does not care about extra-marital sex and does not see in it any shame, defamation or breach of the correct and acceptable behaviour, nor any violation or threat to morality. They did this without noticing that Muslims society fundamentally disagrees with it and completely contradicts it. This is because the Islamic society considers the extra-marital relationship as one of the grave sins (Kaba'ir) for which there is severe punishment; either flogging or stoning to death. It also considers the one who commits this sin as an outcast, and a deviant who is looked upon with loathing and contempt. It as well, sees it as axiomatic that honour should be protected and it is one of the issues that is not open to discussion or debate, an issue for the defence of which wealth and lives should be sacrificed willingly and with zeal, without any excuses.

Indeed, those transferors and imitators did not consider the difference between the two societies and the huge disparity between the two positions just as they did not consider what the Islamic life made incumbent on them and what the Shari'ah rules demanded of them. They rushed headlong in the pursuit of transference and imitation until the call for woman's revival dressed with licentiousness (Ibahiyyah) and indifference to the characterisation of morally reprehensible behaviour. In this manner those transferors and imitators continued to destroy the social aspect in Muslims life in the name of reviving women and under the pretext of working to revive the Ummah. However, in the beginning, such people were a minority and the Ummah did not initially accept their call. After the capitalist system was implemented in the Muslims countries and they were ruled by the disbelieving colonialists and then by their agents who followed their direction blindly, the minority was able to influence and bring most people in the cities, and some of the inhabitants of the villages, to proceed along the path they had taken. So they started to transfer from and imitate western culture until the Islamic character was erased from many quarters of Muslims cities. There was no difference between Istanbul and Cairo or between Tunis and Damascus. Nor was there a difference between Karachi and Baghdad or Al- Quds and Beirut. All of them proceeded on the path of transferring and imitating western culture.

It was natural for a group from amongst the Muslims to rise up and struggle against these thoughts. It was inevitable that a great number of people from the Muslims countries would set about to fight these ideas. So a group or rather groups were formed which called for the obligation of protecting Muslim women and safeguarding the virtues in society. However, they did this without understanding the systems of Islam nor were the Shari'ah rules clear to them. They accepted interest (Maslaha), as perceived by the mind, as a basis for study and as a criterion for judging ideas and matters. They also called for the preservation of customs and traditions. They called people to hold on to morals, without comprehending that the basis is the Islamic 'Aqeedah and that the criterion is the Shari'ah rules. Blind fanaticism concerning the Hijab of women reached the point where they advocated restrictions over women, not giving them permission to leave their house, or to undertake the fulfilment of their needs, or pursue matters themselves. Late jurists (Fuqaha) ascribed five (types) of 'Awrah to women: 'Awrah in prayer, 'Awrah when in the presence of male Mahrams, 'Awrah when in the presence of foreign (non Mahram) men, 'Awrah when amongst other Muslim women and 'Awrah amongst non-muslim women. According to this they called for the total segregation (Hijab) of women preventing them from seeing or being seen by anyone. They called for barring the woman from pursuing life's activities. So they maintained that she should be banned from practising her right to vote by excluding her from holding an opinion about politics, ruling, economics or society. So they stood between her and life until they thought that some verses had come to address men to the exclusion of women. They gave the Hadith of the Prophet (pbuh) about his (pbuh) shaking the hands of woman in the Bay’a, his Ahadith about the 'Awrah of women and his (pbuh) societal transactions (Mu’amalat) with women, interpretations that agreed with what they intended for women and not what was required by the Hukm Shar'i.

Thus, all of this served to distance people away from the Shari'ah rules and obscure the aspect of social system in the minds of the Muslims. Consequently, their views were not able to stand in the face of attacking thoughts, or impede the overwhelming flow of western ideas, or have even the slightest effect in elevating the aspects of the social system amongst the Muslims. This happened inspite of the existence of scholars in the Ummah, who are of the foremost Mujtahidin and scholars of mazahib in terms of their knowledge and erudition, and in spite of the existence of an intellectual and legislative wealth at the disposal of Muslims which is unparalleled compared to any other wealth of any other nation. This occurred inspite of the abundance of books and valuable works in the possession of Muslims in their public and private libraries. All of this had no effect in holding back those bent on transferring and imitating from their error, or in convincing the narrow minded, of the Islamic opinion which had been derived correctly by a mujtahid, as long as it disagreed with what they wanted women to do. This is because such people on both sides, amongst the imitators, the narrow minded, the scholars and the educated were far from being described as thinkers. They did not understand the reality, or they didn't understand the Hukm of Allah (swt). They did not study the Shari'ah rules intellectually by accurately applying them to the reality so as to be in full agreement with it. Due to this, the society in Muslims countries continued to oscillate between two notions: imitation (Taqleed) and rigid narrow mindedness (Jumud). The social aspect continued in a confused state until the Muslim woman became bewildered. She stood between on one side women who were anxious and confused, taking from western society without understanding it and without being aware of its reality, or knowing the contradiction that existed between it and the Islamic culture; and narrow minded women who did not benefit themselves, nor did their presence benefit the Muslims on the other side. All of this was due to a failure in studying Islam intellectually and not understanding the Islamic social system.

Therefore, we must study the Islamic social system comprehensively. We must study it deeply until it is realised that the problem is the meeting between the man and the woman and the relationship that results from their meeting and that which branches out from this relationship. And that what is required is the treatment of this meeting and the resultant relationship and that which branches out from it. It should be understood that this solution is not dictated by the mind but by the Shar’a. As for the mind, its role is to understand the solution, that the solution is for Muslim men and women who live a specific lifestyle which is the lifestyle which Allah (swt) has obliged them to live. They are most definitely obliged to restrict their living solely to this lifestyle as Allah (swt) has commanded in the Qur'an and Sunnah irrespective of whether it contradicts with the West or disagrees with the customs and traditions of their own fathers and forefathers.

Thursday, 12 January 2017 15:56

22 Maintaining Good Relations with Kith and Kin (Silat-ur-Rahm)

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When Allah (swt) forbade the tribalism of Jahiliyah He only forbade that tribalism should be the bond between the sons of the Ummah, and He forbade that it controls the relationships amongst the Muslims. However, He ordered people to maintain contact with relatives and show kindness to them. It has been reported that a man asked the Prophet (pbuh) : “who shall I show kindness to?” He said: “Your mother, father, sister and brother.” In another version: “And your (Mawla) relation who is closer to you, as a right and duty and a tie of relationship (Rahm) which you should be kind to.” Asmaa bint Abu Bakr said: “My mother who was a pagan, came to see me during the period of the treaty between the Muslims and Quraish. I went to seek the advice of the Prophet (pbuh) saying: ‘My mother has arrived and she is hoping (for my favour).” The Prophet said: “Yes, be good to your mother”.

Islam has divided the relations into two catogaries; firstly the relations from whom it is possible to inherit when they die. And secondly the relatives from the maternal side (Ulu al-Arham). As for the ones who have the right to inherit they are the ones entitled to a statutory portion of inheritance (Ashab al-Furud) and the agnate relations (relatives on the paternal side) (Asabat). As for relatives on the mothers side (Ulu al-Arham) they are different from the former; they are the ones who have no share in inheritance nor are they from the agnate relations. They include ten categories: The maternal uncle (Khal) and aunt (Khala), maternal grandfather (Jadd li al-umm), son of the daughter and son of the sister, daughter of the brother, daughter of the paternal uncle and paternal aunt, and the half paternal uncle, son of the half brother and whoever declares to be one of them. Allah (swt) did not give those people any share in the inheritance of the person nor is their maintenance an obligation on the person. However Allah (swt) ordered the maintaining of good relations and being kind to all the relatives. Jabir (ra) narrated that the Prophet (pbuh) said: “If any one of you is poor let Him start with Himself and if any one of you has surplus (wealth) let Him spend on his family, and if any of you has further surplus let Him spend it on his relatives.” Narrated Abu Ayyub: A man said to the Prophet (pbuh) “Tell me of such a deed as will make me enter Paradise .” The people said, “What is the matter with Him? What is the matter with Him?” The Prophet (pbuh) said, “He has something to ask”. The Prophet (pbuh) said: “(In order to enter Paradise) you should worship Allah and do not ascribe any partners to Him, offer prayer perfectly, pay the Zakat and keep good relations with your Kith and kin.” Thus, He ordered the keeping of good relations. It may be asked: Who are the relations meant in these Ahadith? Are they only the maternal side (Ulu al-Arham) or anyone related to the Rahm of the person! The Ahadith indicate that keeping good relations include all the relatives whether they are relatives from the unmarriageable degrees (Mahram), a non-Mahram from the Asaba (relations on the paternal side/agnates) or the relatives from the maternal side. There exist a number of Ahadith concerning the keeping of good relations (Silat ar-rahm). He (pbuh) said: “The one who severes ties with the relations will not enter Paradise”. It was narrated by Anas b. Malik that the Messenger of Allah (pbuh) said: “Whoever loves that He be granted more wealth, and that his lease of life be prolonged, then He should keep good relations with his kith and kin”. It is narrated by Abu Hurayra that the Prophet (pbuh) said: “Allah created his creation, and when He finished it, the womb got up and said, I seek refuge with you from Al-qatia (ties being severed with me).” On that Allah (pbuh) said: “Don’t you accept that I bestow my favours on Him who keeps your ties, and withhold My favours from Him who severes your ties?” On that it said, “Yes, Oh my Lord!” Then Allah (swt) said: “That is for you”. Then the Messenger of Allah (pbuh) said:

“If you wish, you can recite: Would you then if you were given authority, do mischief in the land and sever your ties of kinship?” [Muhammmad: 22]

He (pbuh) said: “The Al-wasil (the one who keeps good ties with kith and kin) is not the one who recompenses the good done to Him by his relatives, but Al-Wasil is the one who keeps good relations with those relatives who had severed the bond of kinship with Him.” All of this indicates the exhortation to keep good relations with kith and kin.

The Silat ar-Rahm (keeping good relations) indicates the importance of what Allah (swt) has legislated regarding the keeping of good and friendly relations within the Islamic community, in the maintaining of good relations and co-operation between relatives, and the extent of the Shari’ah concern to organise the meeting of men and women and organise what results from this meeting in terms of the relationships (Alaqat) and whatever branches out from it. Hence the Islamic Shar’a, through the rules which it legislated for the social aspect in the society, provides the best social system for mankind.

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Thursday, 12 January 2017 15:54

21 Custody of the Child

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Taking care of the child is fard because it may perish if it is neglected. It is by way of preserving a life that Allah (swt) has made it obligatory, so it has to be protected from death and safe from danger. Even though caring for the child is fard, its right of kinship also requires it, because the child is entitled to that caring, so the right as well as the duty are related to the custody. It is the right of every child and the duty of everyone whom Allah (swt) has obliged to take care of Him. It is fard on the custodian when no one else has been assigned other than Him. As for the right of the one on whom Allah (swt) has obliged the custody, in assuming this custody, it is specific to those who are qualified for it and it is not general; so it is not given to the one with whom the child will surely perish. Therefore custody is not given to a child or the one that is insane, because each of them is unable to undertake it. This is because they themselves are in need of custody, so how could they look after another? And it cannot be given to the one with whom the child will surely be ignored, due to negligence or preoccupation with their own activities which detracts from their ability to look after the child. Or because they are characterised with attributes such as Fisq (transgression) for example, which by its nature will corrupt the upbringing of the child, since corruption is considered a form of destruction.

As for the disbeliever, it cannot be imagined that He can be a father to a child while his mother is a Muslim due to the prohibition of Muslim women marrying disbelievers. It has been decided, therefore, that the person deserving custody of the child be a woman, whether the mother or someone else. In such a situation it will have to be examined. If the child is at the age of distinction and is able to comprehend things and understand the difference between the conduct of his mother and the conduct of his father, as when He is over the age of weaning; in this case He will be allowed to choose between his parents. He will be given to either of the two He chooses, due to what was reported by Abu Dawood that Abdul Hamid ibn Ja’far narrated from his father on the authority of his grandfather Rafi’ ibn Sinan that He (Rafi’ ibn Sinan) embraced Islam and his wife refused to embrace Islam. She came to the Prophet (pbuh) and said: “My daughter; she finished suckling (or was about to stop suckling) Rafi’ said: “My daughter.” The Prophet (pbuh) said to Him: “Be seated on a side.” And He said to her: “Be seated on a side.” He then seated the girl between them, and said to them: “Call her”. The girl inclined to her mother. The Prophet (pbuh) said: “O Allah! guide her.” The daughter then inclined to her father, and He took her. This Hadith has been reported by Ahmad. Al-Nasai reported it in other versions but the same meaning is present as in this narration.

If the child is under the age of distinction and does not comprehend things and does not realise the difference between the conduct of its mother and its father in, such that He is still suckling or just finished He is not given a choice but is united with his mother. That is according to the understanding of the aforementioned Hadith of Rafi b. Sinan, and because it has been proven that the mother is more entitled to custody of the child and there is no text that prohibits her from gaining custody. It should not be said here that custody (Hadana) is guardianship (Wilaya) so a Kafir cannot have custody over a Muslim. Because the reality of custody is that it is (child) raising and service, and not guardianship. Thus the rules of guardianship do not apply to it.

The mother is more entitled to have custody over the child and over the insane when she becomes divorced. This is due to what Abu Dawood has reported on the authority of Abdullah b. Amr b. al-As that a woman said: “‘Prophet of Allah, my womb is a vessel to this son of mine, my breasts are a water-skin for Him, and my lap is a guard for Him, yet his father has divorced me, and wants to take Him away from me’. The Prophet of Allah (pbuh) said: ‘You have more right to Him as long as you do not marry.’”

Ibn Abi Shayba reported on the authority of Umar that He divorced the mother of Asim. Later He visited her and Asim was on her lap. He wanted to take Him from her. They pulled Him back and forth until the boy began to cry. So they went to Abu Bakr who said: “Her wiping, her lap and her smell are better for Him than yours until He grows up so that He can choose for Himself.” If the mother is not a custodian because she does not meet the conditions mentioned with regards to it, or she does not meet some of them such as being married or insane etc. she is considered as if she does not exist, and so the right of custody passes to the closest to her in entitlement. If the parents do not qualify as custodians then the right of custody goes to whoever is closest to them because they are considered as missing persons. The one most entitled to custody is the mother and then to her mothers (mother and grandmother) and higher; the closest from amongst them to the mother is given precedence, because they are women and their experience of childbearing is certain. So they are considered in the same sense as a mother. The right of custody then goes to the father, then his mothers (mother and grandmother); then to the grandfather and then to his mothers; then to the father’s grandfather and then to his mothers even if they do not inherit, because they have relations with those who are qualified to be custodians. If the fathers and mothers have died then the right of custody passes to the sisters. The sisters of the mother and father are given precedence; then to the half sister through the father and then to the half sister through the mother. The sister is given precedence over the brother because she is a woman and thus one of those best qualified for custody. She is given precedence over those men who are at her level (in terms of the right to custody). If there is no sister then the brother of the parents have greater entitlement. Then the half brother through the father and then to their sons. The half brother through the mother has no right to custody. If they are not present then the custody passes to the maternal aunts. If they are absent then to the paternal aunts. If they are absent, then to the paternal uncle through the two parents. Then to the paternal uncle through the father. The uncle through the mother is not entitled to custody. If they are absent then it passes to the grand aunts (maternal) through the mother, and then to the grand aunts (maternal) through the father, and then to the grand aunts (paternal) through the father. The grand aunts (paternal) through the mother are not entitled to custody because they are related to the mothers father and He has no right to custody.

Custody does not pass from one that is entitled to the next entitled except in the event of his/her absence or in the event of incapacity (Ahliyya). However, if the one with the right of custody abandons custody of the child then custody does not pass to the next custodian unless they are capable of custody. Because custody, even though it is the right of the custodian, is also at the same time an obligation upon Him/her and a right for the child. So to relinquish custody is not possible except if someone who is qualified undertakes the obligation. Only then does custody pass to whoever is closest to the custodian who has relinquished his custody according to the above order. If the one who has relinquished the right to custody wishes to demand that right again and their capacity to take custody still exists then they maintain that right and the child is returned. Likewise, if the mother remarried and her right to custody is nullified, but was she divorced then her right to the custody of the child reverts back to her. Similarly, for any relative who is entitled to custody but is prevented by an impediment, if the impediment ceases then their right to custody returns because the reason for custody still exists.

If a group of people dispute over which of them is more entitled to the custody of a child, the descendent of the one who is more entitled to custody is preferred. It is narrated by al-Barra b. ‘Azib that ‘Ali, Ja’far and Zayd disputed about the daughter of Hamza. Ali said; “I am more entitled to take custody of her because she is the daughter of my paternal uncle.” Ja’far said: “She is my cousin and her aunt (maternal) is my wife.” Zayd said: “Hamza is my nephew.” The Messenger of Allah passed judgement in favour of her aunt (maternal). He (pbuh) said: “The maternal aunt is in the position of the mother.”

All of this is with regards to the child which is in need of custody in order to protect it from death. As for the child which is in no need of custody, then by the absence of his/her need for custody, the reason (Illa) of his custody disappears, and thus the rule of the obligation for his custody and the right of his relatives to custody disappears. Then the matter will be examined. If the one who had the right to custody, such as the mother, was a disbeliever then He will be taken from her and given to someone who has guardianship over Him because the reality has changed to guardianship not custodianship. Guardianship is not allowed for a disbeliever due to his (swt)’s saying:

“And Allah will never allow an authority to the disbelievers over the believers” [An- Nisa: 141]

And because of his (swt) saying: “Islam will always dominate and nothing shall dominate over it.” The speech is general, nothing has come to specify it and the specific discussion of upbringing does not apply to Him for He is in no need for upbringing. But if those entitled to custodianship and guardianship are Muslims, such as when the father and mother are Muslims, then the boy or the girl i.e. young boy or girl will be given the choice between the father and mother. Whichever one they choose they will be joined to, due to what Ahmad, Ibn Maja and al-Tirmidhi have reported on the authority of Abu Hurayra “that the Prophet (pbuh) gave a boy the choice between his father and mother.” And in the narration of Abu Dawood: that a woman came to the Prophet of Allah (pbuh) and said: “My husband wishes to take away my son, O Prophet of Allah, and He drew water for me from the well of Abey Inabah and He has been good to me.” The Prophet of Allah (pbuh) said: “Cast lots for Him”. Her husband said: “Who is disputing with me about my son?” The Prophet (pbuh) said: “This is your father and this is your mother, so take the hand of whomever you wish. So He took his mother’s hand and she went away with Him.” Al-Bayhaqi has produced a report from Umar that He granted a boy the chance to choose between his father and mother. He also produced a report from Ali that He granted Amara al-Jizzami the right to choose between his mother and paternal aunt when He was a boy of seven or eight years of age. These Ahadith are clear and there is evidence within them, that if the father and mother dispute over their child, then it is obligatory to give the child the choice; and they will go with whoever is chosen. As for the casting of lots mentioned in the narration of Abu Dawood, it is not mentioned in the narration of al-Nisai nor in the other narrations. It is understood to refer to a situation where the child did not choose either of them. The granting of choice is not restricted to a specific age. Rather, it is referred to the judge to decide what He deems correct according to the estimation of the experts. If they say He does not require custody, i.e. upbringing, and the judge is convinced of that, then He will grant Him the choice. Otherwise He will leave Him with the one who has the right to raise Him. This differs according to the children. A child may not be in need of custody when He is five years old, another child may not need it when He is nine. The consideration is the age of the child in terms of whether He is in need for custody or not.

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Thursday, 12 January 2017 15:54

20 The Guardianship of the Father

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Since the father is the head of the family and He is its leader and guardian, then it is inevitable that the guardianship over it should go to Him. Therefore, He is the guardian over the children. He has guardianship over his minor children and mature children who are not responsible (Mukallafin), whether male or female, with respect to themselves and their property, even if the minor children are in the custody of the mother or her relatives.

A person is either a minor or mature. The mature person is either sane or mentally deranged. If the person is mature and sane then no one has guardianship over Him in terms of Himself and his property, rather He is the one who will administer his own affairs. However the right of guardianship remains with the father. If the person is a minor, or mature but is insane, then the guardianship will not be in his hands because He is unable to undertake it, so the guardianship over Him will go to the father. This guardianship will continue as long as the description which required it is still present, i.e. to be a minor or insane. When the minor becomes mature or if the mature child is cured of his/her madness and idiocy, then the guardianship over Him/her is terminated. Then he/she becomes a guardian over his/her own affairs, and the father continues to have the guardianship over them out of preference (Nadb) and recommendation, because his right of guardianship is permanent.

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Thursday, 12 January 2017 15:52

19 The Imprecation (Al-Li’aan)

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Li'aan (oath of condemnation) is derived from Li'aan (curse) because each one of the spouses curses himself/herself (in the fifth time) if he/she is lying. The origin of it is in his (swt)'s saying:

“And for those who accuse their wives but have no witnesses except themselves, let the testimony of one of them be four testimonies (i.e. testifies four times) by Allah that He is one of those who speak the truth. And the fifth testimony should be the invoking of the Curse of Allah on Himself if He is of those who tell a lie against her. But it shall avert the punishment (of stoning to death) from her, if she bears witness four times by Allah, that He (her husband) is telling a lie. And the fifth (testimony) should be that the Wrath of Allah be upon her if He (her husband) speaks the truth” [An- Nur: 6-9]

Abu Dawood reports through his isnad (line of transmitters) on the authority of Ibn Abbas (ra) who said: “Hilal ibn Umayyah was one of three people whose repentance was accepted by Allah. One night He returned home from his land and found a man with his wife. He witnessed with his eyes and heard with his ears. He did not stir Him till the morning. Next day He went to the Messenger of Allah  in the morning, and said: “’O Messenger of Allah! (pbuh) I came to my wife at night and found a man with her. I saw with my own eyes and heard with my own ears’. The Prophet of Allah (pbuh) disliked what He described and He took it seriously. There upon the following Qur’anic verse came down: “And for those who accuse their wives, but have no witnesses except themselves, let the testimony of one of them...” Then the Messenger of Allah (pbuh) was relieved and said: ‘Glad tidings for you, Hilal. Allah, the Exalted, has made an easy way out for you’. Hilal said: ‘I expected that from my Lord’. The Messenger of Allah (pbuh) said: ‘Send for her’. She then came. The Messenger of Allah (pbuh) recited (the verses) to them that the punishment in the next world was more severe than that in this world. Hilal said:’I swear by Allah, I spoke the truth against her’. She said: ‘He told a lie’. The Messenger of Allah (pbuh) said: ‘Apply the method of invoking curses between them’. Hilal was told: ‘Bear witness’. So He bore witness before Allah four times that He spoke the truth.When He was about to utter a fifth time, He was told:’Hilal, fear Allah, for the punishment in this world is easier than that in the next world; and this is the deciding one that will surely cause punishment to you.’ He said: ‘I swear by Allah. Allah will not punish me for this act, as He did not cause me to be flogged for this act’. So He bore witness a fifth time invoking the curse of Allah on Him if He was one of those who told lies. Then she was told: ‘Testify’. So she gave testimony before Allah that He was a liar. When she was going to testify a fifth time, she was told: ‘Fear Allah, for the punishment in this world is easier than that in the next world. This is the deciding one that will surely cause punishment to you’. She hesitated for a moment, and then said: ‘By Allah, I shall not disgrace my people’. So she testified a fifth time invoking the curse of Allah on her if He spoke the truth. The Messenger of Allah (pbuh) separated them from each other and decided that there would be no dwelling or maintenance for her from the husband.”

So if a man accused his wife and said to her: “you have committed fornication or you are a fornicator or I have seen you commit fornication”, and He did not bring proof, then the punishment for defamation will be imposed on Him if they do not invoke curse upon each other. If He invoked curses upon her and she does not do the same to Him, then the punishment will be imposed on her due to the saying of Allah (swt):

“But it shall avert the punishment from her, if she bears witness four times by Allah” [An- Nur: 8] The punishment that will be averted from her is the punishment that is mentioned in his (swt)’s saying:

“And let a party of the believers witness their punishment” [An- Nur: 2]

Because when Hilal b. Umayya accused his wife of fornication and came to the Prophet (pbuh) He told Him to send for her and He made them invoke curses upon each other. This is one of the specific cases in which fornication is proven, i.e. the case in which the husband accuses his wife of fornication and proves it by invoking curses upon her and she does not. If she invoked curses upon Him then it is not proven. Her refusal to invoke curses proves fornication and obliges the imposition of the punishment on her due to his Li’aan.

If they both invoked curses upon each other the judge will separate them (terminate the marriage) and they can never marry each other again. She is forbidden for Him forever because the Prophet (pbuh) separated the two cursing parties. Malik reports from Nafi from Ibn Umar that a man accused and made Li'aan to his wife in the time of the Messenger of Allah and rejected her child so the Messenger separated them and granted the child to the woman. Sahl b. Sad reported that the Sunnah which continued with respect to the two cursing parties is that they are separated and shall never come back together again. This separation by imprecation (Li’aan) constitutes an annulment (Faskh) of the marriage contract because this type of separation requires prohibition of marriage forever. It is not allowed for Him even if He declares Himself to have lied. However if He returns and admits to lying then she has the right for the punishment to be imposed on Him. And the child’s paternity will be ascribed to Him whether He admitted lying before or after the imprecation.

The imprecation which absolves the husband from the punishment and obliges it to be imposed on the wife if she refuses to invoke curses, is that the husband should say in the presence of the judge; ‘I bear witness by Allah that she has committed fornication’ and He points to her. If she is not present He mentions her name and lineage until He repeats it four times and then at the fifth time He stops. It will be said to Him fear Allah this is the deciding one, for the punishment in this world is easier than that in the next world. If He refuses to stop He should say; (in the fifth) ‘The curse of Allah is on Him if He was one of those who told lies in regards to his accusation that she committed fornication’. And she should say: ‘I bear witness that He has lied’ (four times) and stops at the fifth. She will be told to fear Allah as the man was told. If she refuses to stop she should say (in the fifth): ‘Allah’s wrath be on her if He was telling the truth’ with respect to accusing her of fornication. If they have a child then the child is mentioned in the Li’aan. When He said: ‘I bear witness she has committed fornication’ He should say: ‘and this child is not mine’. And she should say: ‘By Allah He has lied, and this child is his’.

This is the method of mutual imprecation (Li'aan) and these are its words and sentences. That is why if the woman gives birth to a child and He says this child is not from me or this is not my child, there is no punishment on Him because this is not defamation (Qadhf). However He will be asked: If He meant she has committed adultery and she gave birth from Zina, this is defamation (Qadhf) and it is proven through imprecation. If He said “I meant that He does not physically resemble me or I doubt she had intercourse and the boy is from the one who had intercourse” or things similar to that. In such case there will be no punishment on Him, and the child’s lineage will be ascribed to Him because He has not defamed (Qadhf) her. There is no imprecation in such situations because one of the conditions of imprecation is defamation (Qadhf).

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Thursday, 12 January 2017 15:50

18 The Lineage (An-Nasab)

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The divine wisdom has required that the woman be the bearer of pregnancy and childbirth. Therefore, the woman needs to be restricted in marriage to one man and she has been forbidden from marrying more than one husband. This has been forbidden to her so that each person will know to whom they are related. The Shar’a has taken upon itself to establish lineage and has clarified the matter in the clearest manner.

The shortest duration of pregnancy is six months; in the majority of cases it is nine months and the longest is two years. Regarding the husband, when his wife gives birth to a child, it is possible that it is from Him if she gave birth to it after more than six months from the date of marriage. So it is his child due to the saying of the Prophet: “The child belongs to the one on whose bed it is born (Al-walad Lil-firash).” In short: As long as the woman is married to the husband and she gives birth to a child after six months from marriage, it is definitely the child of the husband.

However, when his wife gives birth to a child after six months and He is sure that this child is not his, then it is allowed for Him to disown it according to certain conditions which He must fulfil. If these conditions are not confirmed then there is no point in Him disowning it. Rather the child remains his, whether He wants it or not. These conditions are:

First: The child that He disowns as his must be born alive. He cannot disown the lineage of the child if it is born dead because there is no divine rule pertaining to the disowning of a still born child.

Second: He has not already acknowledged, either explicitly or implicitly, that it is his child. If He has acknowledged explicitly or implicitly by indication that the child is his, then after that it will not be valid for Him to disown its lineage to Him.

Third: That the disowning of the child should be at particular times and in particular situations. These are the time of delivery or time of buying the necessary things for it, or the time when He knew that his wife had given birth if He was absent. The lineage of the child cannot be disowned at other than these times and situations. When his wife gives birth to a child and He remains silent, not disowning it even though He had the opportunity to do so, then its lineage is related to Him and He will not have the right to disown it after that. The choice is determined according to the place at which He came to know of and his ability to disown it. If He had known about the child and it was possible for Him to disown it but He did not disown it then its lineage is established because the Messenger of Allah (pbuh) said: “The child belongs to the one on whose bed it is born (Al-walad Lil-firash).” If He claims He did not know about its birth, then it is possible to trust his words if He is at a place that makes the birth concealed to Him; for example, if He was at another place or in another country. The decision in this case is his together with his oath, because originally He does not know. If it is not possible to believe Him because He was with her in the house, his claim is not accepted because it is not possible that it was concealed from Him, it may occur that He says “I knew about its birth but I did not know I had the right to disown it, or I did not know I had to disown it instantly.” If the matter is usually not known to the ordinary people, this saying is accepted of Him because this Hukm is not known by the ordinary people. This is applicable to the situation of a person who had become Muslim recently. The ignorance of any Hukm the like of which is unknown to some one like Him is excused, as is in the case of one who is a new Muslim. If the example of such a Hukm is not unknown to such a person as Him, then his ignorance is not excused.

Fourth: The disowning of the child should be followed by imprecation (Li’aan) or He should disclaim it through imprecation. The child will not be disowned from Him unless He disclaims it through complete imprecation.

When these four conditions have been fulfilled, then the child is disowned and given to the wife. Ibn Umar reported that a man imprecated his wife in the time of the Messenger of Allah (pbuh) and her child was disowned so the Messenger of Allah (pbuh) separated them and gave the child to the wife. If the conditions of the disownment of the child are not fulfilled then it is not disclaimed and its paternity is ascribed to the husband and all the rules of fatherhood will be binding on Him. This is if the dispute over the birth originated from the husband. But if the dispute between the spouses over the birth arises from the wife, where she claims during the course of her marital life that she gave birth to a child from Him and the husband rejects it, such that He says 'you did not give birth', then it is up to her to prove her claim by the testimony of a single woman witness. In this case the testimony of a single woman witness is sufficient because the lineage is proven by the woman being his wife. Birth can be correctly proven by a single woman witness who meets the conditions of testimony.

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Thursday, 12 January 2017 15:48

17 Divorce

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Just as Allah (swt) legislated marriage He also legislated divorce. The basis of its legitimacy is the Kitab, Sunnah and Ijma’a. As for the Kitab, Allah (swt) said:

“The divorce is twice, after that, either you retain her on reasonable terms (bilmaroof) or release her with kindness” [Al- Baqarah: 229]

As for the Sunnah it has been narrated on the authority of Umar b. al- Khattab that the Prophet (pbuh) divorced Hafsa then took her back. And it was narrated on the authority of Abdullah b. Umar who said: “I had under my charge a wife whom I loved but my father did not like her so He ordered me to divorce her. I refused.” He then mentioned it to the Prophet (pbuh). He (pbuh) said: “O Abdullah b. Umar divorce your wife.” The Sahabah reached an Ijma’a on the legitimacy of divorce.

Divorce is an annulment of the contract of marriage i.e., the knot of marriage. The permissibility of divorce has no Shari’ah Illah. The texts which allow it do not include any Illah whether in the text (reason) of the Qur'an or the Hadith. It is allowed because the Shar’a has allowed it and not for any other reason. The Shari’ah divorce consists of three pronouncements, one after another. If a man divorced his wife once then that constitutes one pronouncement. It is allowed for Him to take her back (Raj'aa) during the Iddah (waiting period) without a new contract of marriage. If He divorced her the second time, then the second pronouncement has taken place. It is permitted for the husband to take her back during the Iddah without a new contract. When the Iddah has been completed in those two cases and He has not taken her back then she will become irrevocable (Bain) to Him, this being the lesser irrevocability (Baynuna Sughra). He is not permitted to take her back except with a new contract and dowry. If He divorced her a third time then three pronouncements have taken place, and she will become irrevocable to Him, this being the greater irrevocability. It is not allowed for Him to take her back except after she marries another person and He consummates the marriage with her and she completes her Iddah from Him. Allah (swt) said:

“The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness. And it is not lawful for you to take back any of the dowry which you gave them, except when both parties fear that they would be unable to keep the limits ordained by Allah. Then if you fear that they would not be able to keep the limits ordained by Allah, then there is no sin on either of them if she gives back (the dowry or a part of it for her Khula (divorce)). These are the limits ordained by Allah, so do not transgress them. Whoever transgresses the limits of Allah, then such are the Zalimin (wrong-doers). And if He has divorced her (the third time), then she is not lawful unto Him thereafter until she has married another husband. Then, if the husband divorced her, it is no sin on either of them that they reunite, provided they feel that they can keep the limits ordained by Allah. These are the Limits of Allah, which He makes plain for the people who have knowledge” [Al- Baqarah: 229-230]

So in the Ayah Allah (swt) has taught the Muslims how to divorce. He (pbuh) said: “The divorce is twice”. Then He gave them the choice after teaching them (the manner of divorce) either to hold onto their wives and live with them honourably and discharge their obligations to them, or release them in a nice way, which is incumbent upon them. Then He (pbuh) said: “And if He has divorced her (the third time), then she is not lawful to Him thereafter until she has married another husband”; i.e. if He divorced her a third time after the two previous times, it is not allowed for Him to marry her until after she had married another husband. Then He said: “Then, if the husband divorced her, it is no sin on either of them that they reunite”; i.e. if the other husband divorced her, then, it will be allowed for the first husband to take her back with a new contract and dowry. The subject of the second word 'He divorced her' refers to the closest person mentioned which is the expression: 'another husband'. i.e. the second husband. And the subject of s refers to the first husband i.e. there is nothing to prevent each of them from returning back to his/her companion by marriage. Therefore, the man has the authority of three pronouncements of divorce over the woman, two of which allow Him to take her back and the third of which does not allow Him to take her back until she has married another husband.

Divorce is in the hands of the man rather than the woman; so the man alone has the power to divorce, a power she does not have. As for why the man has that power, this is because Allah (swt) has put it in his hands. No reasoning can be found for it in the Shar’a. Accordingly no reason (Illa) should be sought for it. Indeed, reflecting on the reality of marriage and divorce, one notices that marriage is the beginning of a new marital life, where the man and the woman cooperate in choosing each other as the spouse whom they respectively wish to marry. Each one has the right to marry or to refuse marriage with whomever he/she wants. However, once the marriage actually takes place, the man is given the leadership of the family and He is given guardianship over the woman. It is then inevitable that divorce too be the prerogative of the man, or his right, because He is the chief of the family and head of the household. The sole responsibility and the duties of the house have been placed on Him. Therefore only He should have the authority to untie the knot of marriage. The authority is commensurate with the responsibility, and separation between the spouses is in the hands of the one who has guardianship over the other. However, this is a description of the existing reality and not a reasoning for the Shar’a rule, because the Illa of the Hukm Shar'i is not allowed to be other than a Shari’ah Illa found in the Shar’a text.

Nonetheless, divorce being in the hands of the man does not mean that the woman cannot divorce herself or bring about a separation between her and her husband. Indeed he, originally and unequivocally, has the sole authority without being restricted by any situation. In fact, He has the right to divorce her even without a reason. However, the wife has the right to divorce herself from Him and bring about separation between herself and her husband in special cases as stated by the Shar’a. The Shar’a has permitted the wife to annul the contract of marriage in the following cases:

1. If the husband puts the issue of divorce under her authority. In this case she has the right to divorce herself from Him according to what He Himself has authorised her with. So she should say: I divorce myself from my husband such and such person or address Him saying: I divorce myself from you. She should not say I divorce you or you are divorced because divorce occurs on the woman and not the man, even if the divorce came from the woman. It is permitted for the husband to leave the issue of divorce to the wife because the Messenger (pbuh) gave his wives the choice (to remain as his wives or not) and also due to the Ijma’a of the Sahabah on this matter.

2. If she learns of a defect in the husband which prevents intercourse, such as impotence or castration, and she is free from such defects herself. In such a situation, she has the right to request the annulment of her marriage to Him. If the judge confirmed the existence of this defect, He would delay the issue for a year, and if He was still unable to have intercourse with her then her request would be answered and the marriage would be annulled. It has been reported that Ibn Mundhir married a women while being castrated. Umar said to Him: “Have you informed her?” He said: “No.” He (Umar) said: “Tell her and give her the choice (to ask for divorce).” And it has been narrated that Umar delayed the impotent for one year. If the wife finds that her husband's penis is cut or paralysed then her choice is given at once. No delay would be imposed on her because sexual intercourse is hopeless and there is no point in waiting.

3. If it became apparent to the wife before or after intercourse that the husband had a certain disease that does not permit her to reside with Him without fear of harm, such as leprosy, burs, syphilis or tuberculosis, she can refer to the judge and demand separation between her and her husband. Her request would be answered if the existence of this illness was established and there was no possibility of a cure within a specified period of time. Her choice is permanent and not temporary. That is due to what has been mentioned in the Muwatta on the authority of Malik that Said ibn al- Musayyab said: “If a man married a woman, and He was insane or had a physical defect, she has the right of choice. If she wished she could stay, and if she wished she could separate from Him.”

4. If the husband became mentally insane after the contract of marriage the wife has the right to refer to the judge and demand separation from Him. The judge would delay the separation for the period of a year. If his insanity did not cease in this period and the wife was insistent, then the judge would give a verdict of separation. This is according to the aforementioned Hadith of Muwatta.

5. If the husband travelled to a place either distant or close, and failed to return, and reports of Him cease and obtaining maintenance became impossible. In such circumstances she has the right to demand separation from Him after trying her best to search for Him and making inquiries about Him. That is due to the saying of the Messenger (pbuh) (about the wife who said to her husband) “Give me (something) to eat or divorce me.” He made the absence of feeding the Illa of divorce.

6. If the husband stopped maintaining his wife and He is wealthy, and it became impossible for her to reach his wealth for the purpose of maintenance in any way whatsoever, then she has the right to demand divorce and the judge is obliged to divorce her from Him at once without delay. This is because the Messenger (pbuh) said: “Your wife whom you support should say: give me (something) to eat or divorce me.” And because Umar (ra) wrote to those who were absent from their wives and ordered them to give them their maintenance or divorce them. The Sahabah knew this and they did not go against his decision. Thus it indicates Ijma’a (consensus).

7. If dispute and conflict appeared between the spouses. In this case she has the right to demand separation. The judge is then obliged to appoint an arbitrator from the wife's family and an arbitrator from the family of the husband. This family assembly will listen to the complaints of both parties and do its outmost to bring a reconciliation. If a reconciliation between them was not possible, then the assembly would separate them from each other in the manner that it sees fit, according to the findings of its investigation. He (swt) said:

“If you fear a breach between them appoint arbitrators, one from his family and the other from hers; if they both wish for peace, Allah will cause their reconciliation” [An- Nisa: 35]

So, it is in these situations that the Shar’a has granted the woman the right to divorce herself in the first case, and the right to request separation between her and her husband in the remaining cases. The reality of these cases, shows that the Shar’a has looked upon the woman as a companion of the husband in marital life. Any distress and cause for aversion which takes place in the house, affects her just as it affects the husband. Therefore it became necessary that the Shar’a would ensure that she can free herself from the misery that takes place in the house by untying the knot of marriage. Therefore, the Shar’a did not abandon her, nor did it force her to remain with a husband when a peaceful marital life has become impossible. So the Shar’a has permitted her to annul the contract of marriage in situations which lead to the impossibility of an honourable or tranquil life.

In this way, it becomes clear that Allah (swt) has placed divorce in the hands of the man because He is the guardian over the woman and He is responsible for the house. He (swt) has also given the woman the right to annul the marriage so that she does not suffer misery in her marriage, and that the house, which is a place of tranquillity and stability, does not become a place of misery and anxiety.

As for the Illa (reason) re the legality of divorce, we have stated that the Shar’a texts do not give an Illa for divorce, so it has no Illa. However, it is possible to clarify the reality of the legislation of divorce and the manner in which its validity has been mentioned in relation to marriage and what it entails. The reality of marriage indicates that it exists for the creation of the family and to provide tranquillity for this family. If anything happens in this marital life which threatens this tranquillity and the situation reaches a point where it becomes impossible to lead a married life, then there must be a way by which the spouses can separate from each other. It is not allowed to compel them to maintain this bond which is hated by both or by one of them. Thus Allah (swt) has legislated divorce. He (swt) says:

“The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness” [Al- Baqarah: 229]

In order that misery does not continue in the house and so that marital tranquillity may exist between couples. If it becomes impossible to establish tranquillity between the two, due to their incompatibility or because of something which befell them causing disorder in their life together, then each should be given the opportunity to find marital tranquillity with a different partner. However, Islam did not make the mere existence of discontent and aversion a reason for divorce. Rather it ordered the spouses to live together honourably, and encouraged them to bear the aversion because there may be some good in it. He (swt) said:

“And live with them honourably (Bilmaroof). If you dislike them, it may be that you dislike a thing and Allah brings through it a great deal of good” [An- Nisa: 19]

He (swt) ordered the men to use means by which they can lighten the fury of the woman's disobedience. So He (swt) said:

“As to those women on whose part you see ill-conduct, admonish them (first), (next), separate from them in the beds, (and last) beat them (lightly), but if they return to obedience, seek not against them means (of annoyance)” [An- Nisa: 34]

In this manner the Shar’a ordered the taking of all lenient and non-lenient means to solve the problems which occur between spouses in order to find a solution which helps them to avoid divorce. Even when living together is not honourable and other stern means do not help, and the matter has gone beyond dislike, rebellion and disobedience to a state of dispute and breach between them, Islam did not make divorce the second step, despite the intensity of the crisis between them. Rather it ordered that the issue be referred to persons other than the spouses from their families. This is so that they could undertake an attempt to bring about a reconciliation between them. So He (swt) said:

“If you fear a breach between them appoint arbitrators, one from his family and the other from hers; if they both wish for peace, Allah will cause their reconciliation. Indeed Allah is Ever All-Knowing, Well-Acquainted with all things” [An- Nisa: 35]

If these two arbitrators cannot reconcile the two spouses, then there is no room for the marital life to remain between them after all these attempts. For the problem between them has no solution except separation. In this case divorce is inevitable, so they might find marital tranquillity in another marriage or perhaps the problem is solved by the divorce. He (swt) said:

“But if they separate, Allah will provide abundance for everyone of them from his Bounty. And Allah is Ever All-Sufficient for his creatures needs, All-Wise” [An- Nisa: 130]

However, in this issue of divorce an opportunity has been left for the spouses to reunite, in a way that the separation between them is not definite. They have been given the right to go back a first time and a second. The first and second divorce might cause the spouses to return to marital life, for a second time after the first pronouncement of divorce, and for a third time after the second pronouncement of divorce. Therefore, we find that the Shar’a made divorce in three stages: “The divorce is twice, after that, either you retain her on reasonable terms or release her with kindness” [Al- Baqarah: 229]. In this way, each one of the spouses has the opportunity to take the other back and return to the Taqwa of Allah which is entrenched in his/her heart. Thus they may attempt to go back again and try to have a marital life and attain marital tranquillity, and ease or peace of mind which they could not attain before. Consequently, we find that Islam permitted the husband to take back his wife after the first and second pronouncement of divorce. Thus Shar’a has legislated something that will assist the spouses to take each other back and review the matter and re-consider it more earnestly than they had done before. Islam made the period of the Iddah after divorce into three menstrual cycles which is approximately three months or until the time of delivery, (in the case of a pregnant woman) and imposed on the man the duty of providing maintenance to the divorcee and housing her throughout the period of the Iddah, and prohibited the man from expelling the woman that is observing her Iddah until she completes it. This is for the purpose of bringing reconciliation between them and making room for an opportunity by which they can take each other back and resume a new and peaceful life. From this point of view, a clear admonition has been given in the Qur'an. He (swt) said:

“And when you have divorced women and they have fulfilled the term of their prescribed period, either retain them on reasonable terms or set them free with kindness. But do not retain them back to hurt them. And whoever does that, then He has wronged Himself” [Al- Baqarah: 231]

If these procedures did not have an effect, or it had an affect after the first and second pronouncements of divorce and then the third took place despite all of this, then the issue is more deep rooted, complicated and intensely disputed. There is no point in going back, let alone in continuing the marriage. In this case a complete separation is inevitable and resuming another marital union is necessitated without re-attempting the same marital union, before trying another marital union. That is why the third pronouncement of divorce has been made the decider. He (swt) said:

“And if He has divorced her (the third time), then she is not lawful unto Him thereafter until she has married another husband” [Al- Baqarah: 230]

The husband has been absolutely forbidden to take back his wife after the third divorce until she has lived with another husband other than Him who consummates the marriage with her. She must taste his honey and He tastes hers i.e. to have sexual intercourse with Him, in order to experience the marital union completely. If she tries another marital union with someone else naturally, and she does not find ease and peace of mind in this second marital union and separation takes place between her and the second husband, it is then possible for her to return to marital union with the first husband because she has passed the second attempt of a marital union with the second husband and she has compared between the two. Then when she chooses to return, she does so with a better awareness. Consequently, we find that the Legislator permitted her to return to her first husband who divorced her three times after her marriage to another husband. He (swt) said:

“And if He has divorced her (the third time), then she is not lawful unto Him thereafter until she has married another husband” [Al- Baqarah: 230]

Then after that He (swt) immediately said in the same verse: “And if He has divorced her”. i.e. the second husband and not the first: “It is no sin on both of them”. i.e. the first husband and the woman who has been divorced for the second time: “That they reunite”. i.e. each one returns to the other in marriage.

This is what the procedure of divorce legislation alludes to. Thus it appears that what is contained in the legislation of divorce, the procedure of its legislation and the manner of its occurrence, has a far-reaching wisdom and an accurate view towards the social life, so as to ensure for it the peaceful comfortable life in a way that imparts tranquillity. If this comfort is lost and there is no hope to restore it, then it is inevitable that the spouses should separate. That is why Allah (swt) has legislated divorce in the form which we have clarified.

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Thursday, 12 January 2017 15:46

16 Coitus Interruptus (Al- ‘Azl)

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‘Azl is when the man withdraws when close to ejaculation in order to discharge outside the vaginal passage. 'Azl is something which is permitted by the Shar’a. i.e. it is allowed for a man when He has sexual intercourse with his wife to discharge his semen, when close to ejaculation, outside the vaginal passage. Bukhari has reported on the authority of 'Ata'a from Jabir that He said: “We used to practise 'Azl in the time of the Messenger of Allah (pbuh) while the Qur'an was being revealed.” It has also been narrated on the authority of 'Ata'a that He heard Jabir (ra) saying: “We used to practise 'Azl while the Qur'an was being revealed.” And in Muslim: “We used to practise 'Azl in the time of Allah's Messenger (pbuh), He knew of it and He did not forbid us from it.” This is the decision of Allah's Messenger (pbuh) on 'Azl. Which indicates its permissibility, since if it were Haram He would not have remained silent. The Hukm of 'Azl has been related by the Sahabi to the time of the Prophet (pbuh), and because of this it becomes a hukm ascribed to Him (pbuh) since it is apparent that the Prophet knew about it and assented to it, due to the numerous occasions where they put their questions to Him about the rules. With regards to the permissibility of 'Azl there are also a number of authentic Ahadith. Narrated by Ahmad, Muslim and Abu Daud on the authority of Jabir: “A man came to the Messenger of Allah (pbuh) and said: ‘I have a slave girl who is our servant. She carries water for us. I have intercourse with her, but I do not want her to become pregnant’. He (pbuh) said: ‘Practise ‘Azl, if you like. But what is decreed for her will come to her.’” Muslim reports on the authority of Abu Sa'id: “We went out with the Messenger of Allah (pbuh) on the expedition of Bani al-Mustaliq.We took as captive some beautiful Arab women.We desired them, for we were suffering from the absence of our wives. We wanted to practise ‘Azl, so we asked Allah’s Messenger (pbuh) about it. He said: ‘What prevents you from doing so? Since Allah has ordained whom He has to create until the Day of Judgement’”. Abu Daud narrated on the authority of Jabir who said: “A man from the Ansar came to the Messenger of Allah (pbuh) and said: “I have a slave girl. I have intercourse with her but I do not want her to become pregnant.” He (pbuh) said: ‘Practise ‘Azl, if you like. But what is decreed for her will come to her.’” 'Azl is unequivocally permitted whatever the intention of the one who practises it. Whether it is for the intention of not having offspring, having fewer children, or in sympathy for the wife because she is weak making it difficult for her to bear or give birth, or for any other reason.

The husband has the right to practise 'Azl regardless of his intention. That is because the evidences concerning it are unrestricted (Mutlaqa), and under no circumstances are they restricted; and they are general (Aam) without any specification (Takhsis). Thus, they remain unrestricted and general. It should not be said that 'Azl constitutes killing the child before its creation. There are clear Ahadith which reject this. Abu Daud has reported on the authority of Abu Said that a man said: “O Messenger of Allah (pbuh) I have a slave girl and I practise 'Azl with her. I do not want her to get pregnant but I desire what men desire. The Jews say that 'Azl is the minor live burial of children.” He said: “The Jews have lied. If Allah wanted to create a child you could not stop Him”. The text came to permit 'Azl for the intention of not having children.

Ahmad and Muslim have narrated on the authority of Usama b. Zayd that a man came to the Prophet (pbuh) and said: I do 'Azl with my wife. Thereupon Allah's Messenger (pbuh) said: “Why do you do that?” The man said: “I pity her child or her children.” Thereupon the Messenger of Allah (pbuh) said: “If that were harmful it would have harmed the Persians and the Romans”. Here the Messenger (pbuh) said “Why do you do that?” He did not say 'Do not do that'. It is understood from this Hadith that He agreed upon it; but He informed Him that having children one after another does not cause harm as the evidence for that is by what Muslim reported in the Hadith of Usama b. Zayd when a man came to Allah's Messenger (pbuh) and said: “I practise 'Azl with my wife pitying her child.” The Messenger of Allah (pbuh) said: “If it is for that reason, then no. It did not harm the Persians or the Romans”, and it is also narrated in Muslim from Abdul-Rahman b. Bishr from Abu Said: “Fearing that pregnancy will harm the child being suckled.” Consequently, since the Messenger allowed 'Azl in order to avoid pregnancy, even though the suckling infant is not harmed, it applies on 'Azl to prevent pregnancy for the purpose of avoiding a large family or avoiding having children in the first place etc. This is because if Allah (swt) knew that the child will be born, then the child will be born whether the (husband) practiced 'Azl or not. Thus, Ibn Hibban reported in the Hadith of Anas that a man inquired about 'Azl. The Prophet (pbuh) said: “If the semen from which a child comes is spilled on a rock, He will bring forth from it a child”. It cannot be said that limiting offspring goes against the Prophet's (pbuh) encouragement to have many children when He said: “Marry, have offspring and multiply”; and when He (pbuh) said: “A fertile black woman is better than a beautiful woman who is barren”. This is not true because permitting 'Azl does not contradict the encouragement to have many children. On the one hand there is exhortation to have a lot of offspring and on the other there is a permission to practise 'Azl. As for what Ahmad has reported from Judhama bint Wahb al-Asadiyya, that she said: “I was present with the Messenger of Allah (pbuh) among the people. He (pbuh) was saying: “I wanted to forbid sexual intercourse with mothers who are giving suckling to their children, but I have seen that the people of Persia and Rome do that and their children are not harmed at all”. Then He was asked about 'Azl. The Messenger of Allah (pbuh) said: “That is the concealed burial. It is (and He recited the verse): ”When the female (infant) buried alive (as the pagan Arabs used to do) shall be questioned”.[At- Takwir:8-9]. This Hadith contradicts the clear and authentic Ahadith which permit 'Azl. When a Hadith conflicts with another Hadith which has more lines of transmission, then the latter is preferred and the singularly transmitted Hadith is rejected. Accordingly, this Hadith is rejected because it contradicts what is stronger than it and has more lines of transmission.

It should not be said that the reconciliation of this Hadith with the Ahadith which permit 'Azl is that this Hadith is taken to mean dislike for 'Azl. This would have been possible if there was no clash in the Messenger's (pbuh) negation in the other Hadith to the same meaning which came in this Hadith. So the Hadith which Ahmad and Abu Dawood reported on the authority of Abu Said: “The Jews say that 'Azl is the minor live burial of children.” He (pbuh) said: “The Jews have lied” and the Hadith of Judhama says: “That is the concealed burial.” It is (and He recited the verse):

“When the female (infant) buried alive shall be questioned” [At- Takwir: 8-9]

Thus, it is not possible to reconcile these two Ahadith. Either one of them is abrogated or one of them is stronger than the other so the weaker Hadith is rejected. Since the history of the two Ahadith is unknown and the Hadith of Abu Said is supported by numerous Ahadith and through numerous chains, while the Hadith of Judhama has come isolated and it is not supported by anything, it is therefore rejected and the Hadith which is stronger than it, is preferred. Therefore, 'Azl is definitely allowed without any dislike whatever the person intends from the practising of 'Azl , due to the general nature of the evidences. The man does not need to even ask permission from his wife to practise 'Azl because the issue relates to Him and not to her. It should not be said that intercourse is her right, so the semen is also her right, thus He cannot discharge it outside the vagina without her permission. This is a rational justification and not one from the Shari’ah so it accordingly has no value. And furthermore it is nullified because intercourse is her right but not the discharge of semen as evidenced by the impotent man who if He entered the wife but did not discharge, He is considered to have fulfilled her right by the entering. She does not, then, have a right to the repudiation (Faskh) of marriage. As for what Ibn Maja has reported on the authority of Umar b. al-Khattab who said: “Allah's Messenger (pbuh) forbade the practise of 'Azl with a free woman without her permission”, it is a weak Hadith and in the isnad there is Ibn Lahia and (much) has been said about Him. Therefore, the Ahadith remain unrestricted in their permissibility of 'Azl .

This ruling on 'Azl applies to the use of medicines, condoms or the use of a coil to prevent pregnancy. All of them belong to the same category because the evidences permitting 'Azl completely apply to them, as all these means belong to the question of 'Azl. This is so because the ruling is the permissibility of a man undertaking an action to prevent pregnancy whether by 'Azl or any other means. What is permitted for the man is permitted for the woman since the ruling allows the prevention of pregnancy through any of the available means.

This permission to prevent pregnancy is specific to the temporary prevention of pregnancy. As for the permanent prevention of childbearing or causing sterility, it is Haram. So the use of medicines which irrevocably prevent pregnancy and terminate the chance of having offspring, or the undergoing of surgical operations which permanently halt pregnancy and terminate procreation, are all prohibited. This is so because they are a type of castration so they fall within its category and take its ruling. This is because these practices terminate procreation just as castration terminates procreation. A clear prohibition has been made with regards to castration. Reported by Sa'ad b. Abi Waqqas: “The Messenger of Allah (pbuh) rejected (the idea) of Uthman b. Maz'un living in celibacy (saying): And if He (pbuh) had given me permission we would have got ourselves castrated.” Uthman b. Muz’un came to the Prophet (pbuh) and said: “O Messenger of Allah (pbuh), I am a man suffering from having no wife. Permit me to castrate myself.” He (pbuh) said: “No! However, you should fast”. And in different wording He said: “O Messenger of Allah will you permit me to castrate myself ?” He (pbuh) said: “Allah has substituted for us monasticism with the True Religion”. Narrated about Anas that He said: “The Prophet used to order us to marry and strictly forbade us form celibacy. He used to say: “Get married to the tender and fertile for indeed I like my Ummah to outnumber others on the Day of Judgement”.

The permanent termination of procreation conflicts with the Legislator's making of procreation and childbearing as the original purpose of marriage. That is why Allah (swt) said in showing his (swt) benevolence to people:

“And He has made for you, from your wives, sons and grandsons” [An- Nahl: 72]

The Legislator has made the having of many children Mandub and encouraged people towards it and praised the one who does it. It was narrated by Anas that the Prophet (pbuh) said: “Get married to the tender and fertile for indeed I like my Ummah to outnumber others on the Day of Judgement”. Abdullah b. Umar narrated that the Messenger of Allah (pbuh) said: “Marry the mothers of children so that I can vie with other peoples by your great number on the Day of Judgement”. Ma'qal b. Yasar narrated: “A man came to the Prophet (pbuh) and said: “I have found a woman who is beautiful and of noble descent but she cannot bear children. Shall I marry her ?. He (pbuh) said: “No.” Then He came again and He (pbuh) prevented Him. Then He came for the third time, so the Prophet said: “Get married to the tender and fertile for indeed, I like my Ummah to outnumber others”.

The permissibility of temporary birth control through 'Azl or any other method of birth control does not mean the permissibility of abortion. So when the soul (secret of life) has been breathed into the foetus, its abortion is Haram whether the abortion was brought about by taking a medicine, violent movements or medical operation. This applies whether it was performed by the mother, father or doctor, because it is an aggression on a human soul whose blood is sacrosanct. It is a crime for which blood money (Diyya) has to be paid, the value of which is to free a male or female slave. Its amount is one tenth of the blood money for an adult. He (pbuh) said:

“And kill not anyone whom Allah has forbidden, except for a just cause” [Al- Anam: 151]

Bukhari and Muslim reported from Abu Hurayra (ra) who said: “Allah's Messenger gave a verdict regarding an aborted foetus of a woman from Bani Lihyan that the killer (of the foetus) should give a male or female slave (as a Diyya).And the minimum age of the foetus which requires blood money is when it appears to have some human features such as a finger, hand, feet, head, eye or fingernail.”

But if the abortion took place before the soul was breathed in it, it has to be examined: if the abortion takes place after forty days from the beginning of the pregnancy when the formation of the foetus starts, it will be likewise Haram, and it will take the Hukm of aborting a foetus after the soul (secret of life) has been breathed into it. That is because when the development of the foetus begins and some limbs appear, it becomes certain that it is a living foetus on its way to becoming a complete human. So, it will be an aggression against a human life whose blood is sacred and it will be like burying it alive, a matter which Allah (swt) has forbidden. He (swt) said:

“And when the female (infant) buried alive shall be questioned. For what sin she was killed?” [At- Takwir: 8-9]

So the abortion of the foetus after forty days from the beginning of pregnancy is forbidden for the mother, the father or the doctor. Anyone who aborts after forty days will be committing a sin and a crime for which blood money of an aborted foetus must be paid, which is the giving of a male or female slave as mentioned in the Hadith reported by Bukhari and Muslim.

It is not permitted to abort a foetus whether in the stage of development or after life is breathed into it except if trustworthy doctors decide that the existence of the foetus in the womb of the mother will lead to the death of both her and accordingly the foetus. In this case, it is allowed to abort the foetus and save the life of the mother.

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Thursday, 12 January 2017 15:44

15 Married Life

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A wife is not a partner of her husband in life rather she is his companion. Their living together is not based on partnership and they are not forced to live it all their lives. Rather, their living together is based on companionship and they become complete companions of each other in all respects. Companionship is where one finds repose and tranquillity in the other, Allah has made this marriage a source of tranquillity for both spouses. He (swt) said:

“It is He Who has created you from a single person, and He has created from Him his wife, in order that He might enjoy the pleasure of living with her”. [Al- Araf: 189] And He (swt) said:

“And among his Signs is this, that He created for you wives from among yourselves, that you may find repose in them, and He has put between both of you affection and mercy”. [Ar- Rum: 21]

The dwelling is the tranquillity i.e. so that the husband finds peace and tranquillity in his wife and his wife finds peace and tranquillity in Him and that each one inclines to the other rather than shuns each other. So the basis of Marriage is tranquillity and the basis of marital life is tranquillity and peace of mind. In order that this relationship between the spouses becomes one full of comfort and tranquillity, the Shari’ah has clarified the rights of the wife over the husband and the rights of the husband over the wife. Verses and Ahadith have come clearly to explain these issues. Allah (swt) said:

“And they (women) have rights (over their husbands) similar (to those of their husbands) over them, in reasonable terms”. [Al- Baqarah: 228]

i.e. women have the same marital rights over the men as the rights men have over them. That is why Ibn 'Abbas said: 'Indeed I spruce myself up for my wife and she adorns herself for me, and I love that I should redeem all the rights I have over my wife, so that she should redeem all the rights she has over me, because Allah (swt) said:

“And they (women) have rights (over their husbands) similar (to those of their husbands) over them, in reasonable terms'' [Al- Baqarah: 228]

i.e. the charms in which there is no sin. Also it is reported from Him that He said: 'They (women) have the right of good companionship and intimacy similar to the rights of obedience obliged over them towards their husbands' Allah (swt) has ordered that there should be a good marital relationship between spouses. He (swt) said:

“And live with them honourably” [An- Nisa: 19] And He said:

“so retain her (to you) honourably” [Al- Baqarah: 229]

Companionship is both intimacy and mixing, meaning to live together. Thus, Allah (swt) has ordered men to have good relations with their wives, so that intimacy and intermixing between them grows to perfection. This results in tranquillity and comfort in life. The relationship between men and women is more than just fulfilling her right by paying her Mahr and maintenance. Rather He must not frown at her for no reason, and He must be cheerful when speaking to her and not rude, harsh or displaying any inclination to other than her.

Also the Messenger (pbuh) has ordered men to treat their women well. It has been reported by Muslim in his Sahih on the authority of Jabir that the Messenger of Allah (pbuh) said in his speech at the Hijjat-ul-wida' (farewell Hajj): “Fear Allah concerning women! Verily, you have taken them on the security of Allah, and intercourse with them has been made lawful unto you by the word of Allah. You too have rights over them, they should not allow anyone to sit on your bed whom you do not like. But if they do that you can chastise them but not severely. Their rights upon you are that you should provide them with food and clothing in a fitting manner.”

And it has been narrated from the Prophet (pbuh) that He said: “The best amongst you is the one who is best to his wives and I am the best of you to my wives.” And it has been narrated from Him (pbuh) that He had a close relationship with his wives, He would play with them, be mild-mannered toward them and to have fun with them to the extent that He used to race with 'A'isha (ra), the mother of the believers, and with that win her love. She said: “Allah's Messenger (pbuh) raced me and I beat Him, that was before I gained weight. Later I raced Him when I had put on some weight, so He beat me and said: “This was (in return) for that (time when you had beaten me)”. The Prophet (pbuh) after praying 'Isha would spend a short part of the evening chatting with his wives before sleeping thereby creating a friendly atmosphere. Ibn Maja reported that the Prophet (pbuh) said: “The best amongst you are the ones who are best to their wives.”

All of this indicates that husbands should have good relations with their wives. Since things may happen in married life that may disturb the order, Allah has granted the leadership of the home to the husband over the wife, i.e. He has been made a guardian over her. He (swt) said:

“Men are the protectors and guardians over women”. [An- Nisa: 34] And He (swt) said:

“And they (women) have rights (over their husbands) similar (to those of their husbands) over them in a fitting manner, but men have a degree (of responsibility) over them”. [Al- Baqarah: 228]

He (swt) also ordered the woman to obey her husband. He (pbuh) said: “If a woman spends the night away from her husband’s bed then the Angels curse her until she returns.” And He (pbuh) said to a woman: ‘Do you have a husband?’ She replied: ‘Yes.’ He said: ‘Then He is your Paradise (Jannah) and Hellfire (Nar).’ Bukhari reported that the Prophet (pbuh) said: ‘It is not allowed for a woman to fast without the permission of her husband whilst He is present, nor admit someone to his house without his permission, and whatever she spends of his wealth (on charitable purposes) without his permission, half the reward will go to Him.’” Ibn Batta has reported in his Ahkam an-Nisa (The book of rules pertaining to women) on the authority of Anas that a man had gone on a journey and forbade his wife from going out. Her father became ill so she asked permission from Allah's Messenger  to visit her father. The Messenger of Allah  said: “Fear Allah and do not disobey your husband”. Her father then died. So she asked permission from Allah's Messenger (pbuh) to attend his Janaza (funeral prayer). He told her: “Fear Allah and do not disobey your husband”. So Allah revealed to the Prophet (pbuh): “I have forgiven her sins due to her obedience to her husband.” (Hadith Qudsi) The Shar’a has given the man the right to prevent his wife from leaving the house whether she wishes to call on or visit her parents or for a thing she needs or just for recreation. It is not therefore allowed for her to go out without his permission. However, the husband should not prevent his wife to call on and visit her parents because that will create a rift between them and lead his wife to disobey Him. Allah (swt) has ordered them to live together honourably. Preventing her from visiting her parents is not living honourably. Nor should the husband prevent her from going to the Mosque, Since it has been narrated from the Prophet (pbuh) that He said: “Do not prevent slave girls of Allah (women) from going to the Masajid of Allah”. If the wife rebels against her husband, Allah has given Him the right to discipline his wife. He (swt) said:

“As to those women on whose part you see ill-conduct, admonish them (first), (next), disengage from them in beds, (and last) beat them (lightly), but if they return to obedience, seek not against them means (of annoyance)” [An- Nisa: 34]

The beating mentioned here should be light i.e. not severe. As the Messenger (pbuh) explained in the farewell Hajj when He said: “But if they do then you can chastise them but not severely”. The husband has been given the authority to punish his wife if she does wrong because He is the guardian in running and looking after the affairs of the house. In anything other than what Allah (swt) has ordered her to undertake, the husband is absolutely not allowed to harass her with it. He (swt) said:

“But if they return to obedience, seek not against them means (of annoyance)”. [An- Nisa: 34]

Rather He should be a friend to her, and kind when He requests something of her, to the extent if He desires her He should choose the best situation and condition suitable for her. He (pbuh) said: “Do not approach wives at night until the one with dishevelled hair has it combed and the one whose husband has been away has cleaned her private parts (of hair).”

Guardianship of the husband over the wife and his leadership of the house does not mean being domineering in it or being its ruler such that no issue is opposed. Rather the leadership of the husband over the house is the looking after its affairs and administering it and there is no domination or commanding in it. Therefore, the woman has the right to answer back to her husband and debate with Him and criticise what He says because they are companions and not a commander and commanded, or a ruler and a ruled. On the contrary they are two companions, one of whom possesses leadership in terms of running the house and looking after its affairs. In his house, the Messenger of Allah , was likewise a companion to his wives, not a domineering ruler over them, in spite of his being the leader of a state and in spite of being a Prophet. 'Umar b. al-Khattab said in a Hadith reported by Him: “By Allah, during the days of Ignorance we ignored women until Allah the Exalted revealed about them what He has revealed, and gave them a share.” He said: “It so happened that I was thinking about some matter when my wife said: 'I wish that you had done so and so'. I said to her: “It does not concern you, and you should not interfere in what I intend to do.” She said to me: 'How strange is it that you, son of Khattab, do not like anyone to answer you back, whereas your daughter answers back Allah's Messenger (pbuh) until He spends the day in vexation'. Umar said: “I took hold of my cloak, then came out of my house until I visited Hafsa and said to her: Oh daughter, (I heard) that you answer back to Allah's Messenger (pbuh) until He spends the day in vexation.” Hafsa said: 'By Allah, we do answer Him back'. I said: “Be careful, my daughter, I warn you against the punishment of Allah and the wrath of his Messenger (pbuh). You may not be misled by the one whose beauty, and the love of Allah's Messenger (pbuh) for her have fascinated her(meaning A'isha). I ('Umar) then visited Umm Salama because of my relationship with her and I talked to her. Umm Salama said to me: 'Umar b. al-Khattab, how strange it is that you interfere in every matter to the extent that you intend to interfere between Allah's Messenger (pbuh) and his wives'. This perturbed me so much that I refrained from saying what I had to say, so I came out of her apartment.”. Muslim narrates in his Sahih that Abu Bakr came and sought permission to see Allah's Messenger (pbuh). It was granted to Abu Bakr and He entered. Then came Umar and He sought permission and it was granted to Him and He found Allah's Messenger (pbuh) sitting sad and silent with his wives around Him. He (Umar) said: “I wanted to say something which would make the Holy Prophet (pbuh) laugh, so I said: ‘Oh Messenger of Allah, I wish you had seen the daughter of Kharijah when she asked me for maintenance (Nafaqah), and I got up and slapped her on her neck.’ The Messenger of Allah (pbuh) laughed and said: “They are around me as you see, asking for maintenance (Nafaqah)” From this it becomes clear that the meaning of the man's guardianship over the woman is that the command should rest with Him, but it should be a command borne out of companionship and not domination and control. Thus she can answer back to Him and discuss with Him.

This is from the angle of companionship. As for the aspect of performing household functions, it is obligatory on the wife to serve her husband by making the dough, baking and cooking and by dusting and cleaning the house. She must also give Him water when He requests a drink and provide Him with food to eat and undertake the service of all that is necessary in the house. This applies to whatever is required in all affairs of the home without restriction. With regard to the husband He must bring her what she needs from what is outside the home e.g. bringing the water, and whatever is necessary to remove dirt, clip nails and the means to adorn herself for Him with that which is fitting for her.

In summation, any work that needs to be carried out inside the house the woman must undertake, whatever the type of work. Any work that needs to be carried out outside the house the man must undertake. This is due to what has been narrated from the Prophet in the story of 'Ali and Fatimah (may Allah be pleased with them): He imposed on his daughter Fatimah the duty of working in the house and imposed on 'Ali whatever was outside the house in terms of work. Allah's Messenger used to order his wives to serve Him. He said: “O ‘A’isha, bring us some water. Oh ‘A’isha bring us food to eat. O ‘A’isha bring me the razor and sharpen it against a stone.” It has been reported that Fatimah came to the Prophet complaining to Him about her difficulty in working a handmill, and she asked if she could get a servant to save her from that. All of this indicates that serving the husband in the house and looking after the house is one of the obligations of the wife which must be undertaken by her. However, the performance of such work is subject to her ability. If there is a lot of work to be done which would put her in hardship, then it is incumbent on the husband to provide her a servant that will enable the work to get done, and she has the right to demand this. However, If the work is not overwhelming and she is capable of doing it, then the husband is not obliged to provide a servant. In this case she is required to undertake the work by herself as evidenced by what the Messenger of Allah imposed on his daughter Fatimah in tending to the house.

Hence the husband is obliged to deal with his wife in a fitting manner, and the wife is under an obligation to perform all her duties, in the same way as it is required of the husband. Such that marital life be one of tranquillity in which the saying of Allah (swt) is realised:

“And among his Signs is this, that He created for you wives from among yourselves, that you may find repose in them, and He has made between you affection and mercy” [Ar- Rum: 21]

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Thursday, 12 January 2017 15:41

14 The Prophet’s (pbuh) Marriages

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Allah (swt) revealed his saying:

“Marry women of your choice, two or three, or four but if you fear that you shall not be able to deal justly (with them), then only one or your concubines. That is more fitting so that you do not deviate from the right course” [An- Nisa: 3]

At the end of the eighth year of the Hijra, after He had consummated all of his marriages with his wives, the Messenger (pbuh) was, at the time of the revelation of the verse, married to more than four wives, however He did not leave a single one of them but continued to be married to all his wives. This is because marriage to more than four wives, is specific to Him (pbuh) It is clear that being married to more than four wives is unique to the Messenger and so He kept them after the revelation of the verse which limited marriage to four wives. This is because the Prophet's (pbuh) action does not contradict a statement that He makes. If there is a contradiction then the action is specific to Him while the saying is general to the Ummah, for it has been established in the foundations of jurisprudence that the action of the Prophet (pbuh) does not contradict his speech relevant to the Ummah but it can be specific to the Prophet (pbuh). This is because his order to the Ummah is relevant to them, which is more specific than the evidences calling for us to emulate Him, by following his sayings and actions. Thus, the general order is built on the specific order, and therefore it is not allowed to emulate the Prophet (pbuh) in an action in which there is a different order to the Ummah. However the Prophet's marriage to more than four wives, and allowing them to offer themselves to Him in marriage etc. have been demonstrated by the verses of the Qur'an:

“Oh Prophet! Verily, We have made lawful to you your wives, to whom you have paid your Mahr, (their dower) and your concubines - whom Allah has given you, and the daughters of your paternal uncles and the daughters of your paternal aunts and the daughters of your maternal uncles and the daughters of your maternal aunts who migrated (from Makkah) with you, and a believing woman if she offers herself to the Prophet, and the Prophet wishes to marry her; - a dispensation for you only, not for the rest of the believers. Indeed We know what We have enjoined upon them about their wives and their concubines - in order that there should be no difficulty on you” [Al- Ahzab: 50]

This verse says: 'a dispensation for you only, not for the rest of the believers.' The word 'Khalisa' (dispensation) in the verse is a verbal noun which confirms whatever preceded it i.e. a dispensation has been made for you by permitting what We have made lawful for you specifically. The evidence to say that it includes all that precedes it and that it is specific to the Messenger of Allah (pbuh) is that it came after the four permissible matters which are the non permissibility of marrying wives, captives directly from the Fey', daughters of his relations who have been mentioned amongst those that migrated with Him, and a woman that directly offers herself for marriage, beside the fact that this was stated in an emphatic manner. This is supported by the fact that at the completion of his (pbuh) saying: 'not for the rest of the believers', his (pbuh) saying came: 'Indeed We know what We have enjoined upon them about their wives and their concubines'. So it means this is not what We have enjoined on them, that is why after all of this He (pbuh) said: 'in order that there should be no difficulty on you'. i.e. so that there is no hardship for you.

Therefore, the marriages of the Prophet (pbuh) should not be taken as an example to emulate, nor as a subject of legislative discussion, because it is unique to Him (pbuh). Not to mention that the reality of his marriages indicates that they were marriages of a Prophet (pbuh) and not the marriages of a man marrying for sex and satisfaction of the procreation instinct, in terms of the male-female aspect. By returning to the historical reality we find that He married Khadija (ra) while He was twenty-three years of age, and Khadija (ra) herself remained as a spouse for twenty-eight years. She died in the eleventh year of the Prophethood i.e. two years before the Hijra, a few months after the rescission of the boycott document and shortly before his visit to Taif in the year 620 A.D, at the age of fifty. He did not contemplate, since the time He married Khadija (ra) until her death, the prospect of marrying more than one wife, and this was at a time when polygyny was a widespread practise amongst the Arabs. Before He was sent with the Message, He spent seventeen years with Khadija sharing a quiet and tranquil life. And He lived with her approximately eleven years after the Prophethood (Bi'tha), in a life of da'wa and struggle against the kufr thoughts; in spite of this He did not consider marrying again. It was not known of Him during his life with Khadija (ra) or before his marriage to her that He was one of those tempted by the alluring charms of women in an age where the Tabarruj of the Jahiliyya used to tempt the people. It is not natural for us to take the view that after passing the age of fifty a sudden change took place in Him which did not allow Him to be content with one wife but rather to continue to marry until He had taken ten wives. Within five years in the sixth decade of the Prophet's life He gathered more than seven wives, and in the remaining seven years of the sixth decade and beginning of the seventh the Prophet gathered nine wives. At such an age can these marriages be attributable to a desire for women or to motives linked to satisfying the procreation instinct in terms of sexual intercourse? Or were there other motives, which were required by the reality of the type of life which the Prophet (pbuh) was engaged in, i.e. the life of the Message, which He had been ordered to convey to the people? In order to understand this issue, let us examine the incidents surrounding the Prophet's (pbuh) marriages.

In the eleventh year of the Prophethood, i.e. the year Khadija (may Allah be pleased with her) died, the Prophet (pbuh) considered getting married. He was fifty, so He proposed to 'A'isha, the daughter of Abu Bakr, his friend and the first one who believed in his Prophethood from the men. When she was just a child of six He contracted a marriage with her but did not consummate it for a period of three years until she was nine, which was after the Hijra. However, at the time in which He contracted the marriage with 'A'isha He married Sawda bint Zam'a. Sawda was a widow of al-Sukran b. 'Amr b. 'Abd Shams, who was one of the Muslims who had migrated to Abbysinia but died on his return to Makkah. Sawda had embraced Islam with her husband and she had migrated with Him. She had suffered the same difficulties and hardships He suffered and faced the same harm He had faced. After the death of her husband He married her. It has not been reported that Sawda was beautiful, or that she possessed wealth or standing, that would make any of the worldly aspects influence the Prophet's marriage to her. Since the Prophet (pbuh) had married her after the death of her husband, the only thing we can deduce from this is that He married her to support her and raise her to the position of the mother of the believers. When He migrated He made the house of Sawda close to the Mosque. This was the first house the Prophet (pbuh) built for any of his wives.

Then, in the first year of the Hijra, after the brotherhood between the Ansar and Muhajirin had been instituted, the Messenger (pbuh) consummated his marriage with 'A'isha and He housed her next to the house of Sawda, close to the Mosque. He allowed his first Wazir (assistant) and friend Abu Bakr assiddiq (ra) to come to see Him in his house at his daughter's home.

In the second year of the Hijra, after the battle of Badr and before Uhud, He married Hafsa the daughter of 'Umar b. al-Khattab.(ra) Hafsa, before being married to the Prophet, was the wife of Hanish who was one of the early converts to Islam. He died leaving her for seven months before the Messenger married her. By marrying Hafsa He (pbuh) enabled his second Wazir, his companion 'Umar b. al-Khattab (ra) to come to see Him in his house at Hafsa's home. So the marriages to A'isha (ra) and Hafsa were marriages to the daughters of his two Wazirs (assistants), the daughters of two companions who persevered with Him in Da'wah, ruling and fighting etc. So such marriages were not only for the purpose of marriage. Although 'A'isha (ra)was beautiful and the Prophet found her attractive this was not the case with Hafsa (ra), which indicates that his marriage to both of them was for a purpose other than sexual gratification.

During the battle of Banu Mustaliq, in the fifth year of the Hijra, He  married Juwayriyya bint al-Harith ibn Abi Dirar. The reason behind his marriage to her was for the purpose of drawing her father closer to the Prophet and raising her position. Juwayriyya was from the captives of Banu Mustaliq, and had fallen in the hands of one of the Ansar. She was the daughter of the leader of Banu Mustaliq, so she wanted to free herself from her master to whom she had become a slave-girl. Her master increased the ransom money knowing that she was the daughter of the leader of Banu Mustaliq. So her father approached the Prophet (pbuh) with the ransom required to free her, which He did. Then after believing in the Message of the Prophet He became a Muslim, and He took his daughter Juwayriyya to the Prophet (pbuh) and she too embraced Islam, so the Prophet (pbuh) asked her father for her hand. He married her to the Prophet (pbuh) Himself so the Prophet's marriage to her was in fact a marriage to the daughter of a leader of a tribe which He had subjugated. His (pbuh) objective was to win the friendship of its leader through marrying his daughter.

In the seventh year of the Hijra after the victory of Khaybar He (pbuh) married Safiyya daughter of Huyai ibn al-Akhtab who was one of the leaders of the Jews. The story of his marriage to her began when she was taken along with other captives which the Muslims seized from the fortress of Khaybar. Some of the Muslims advised the Prophet (pbuh): “Safiyya is a noble lady of Banu Qurayza and Banu Nadhir. She is not suitable for anyone other than you”, hence the Prophet (pbuh) freed and married her. This was therefore done for her protection and to free her from the bondage of slavery, and as well to raise her status. It has been narrated that Abu Ayyub Khalid al-Ansari feared that Safiyya harboured hatred against the Messenger (pbuh) who had killed her father, husband and people. For this reason He spent the night, girded with his sword, around the tent in which the Messenger (pbuh) consummated the marriage with Safiyya on the way back from Khaybar. When the Messenger (pbuh) woke up in the morning He noticed Him outside the tent and asked Him: “What is the matter?” He replied: “I feared for you from this woman. You have killed her father, husband and her people and she has just recently come out of kufr.” So the Messenger (pbuh) set Abu Ayyub's mind at rest, and Safiyya remained loyal to the Messenger (pbuh) until Allah (swt) took his soul.

Later, in the eighth year of Hijra He (pbuh) married Maymuna the sister of Umm al-Fadhl, the wife of al-'Abbas b. 'Abd ul-Muttalib. He married her at the end of the pilgrimage [Umra al-qada]. The account of his marriage to her began when Maymuna was twenty six years of age and that she had delegated her sister Umm al-Fadhl to find a suitor for her, but when she saw the predicament of the Muslims at the pilgrimage she herself yearned for Islam. Therefore al-'Abbas proposed to his nephew, our Master Muhammad on her behalf. He proposed to the Prophet at her behest and the Messenger agreed to marry her. The three days which the treaty of Hudaybiyah had stipulated had expired, but the Messenger (pbuh) wished to use his marriage to Maymuna as a means to increase the understanding between Himself and the Quraish. When Suhayl b. 'Amr and Huwayteb b. 'Abd ul-'Uzza came to Him representing Quraish they said to Muhammad (pbuh): “Your time in Makkah has expired, so leave us.” He (pbuh) said to them: “What is the matter with you? Why do you not leave me? I will hold a wedding feast amongst you.We will prepare food for you so why not attend it?” Their response to Him was “we have no need of your food so depart from us”; the Messenger (pbuh) did not hesitate; He left along with the Muslims behind Him.

As for his (pbuh) marriage to Zaynab bint Khuzayma and Umm Salama, they were marriages to the two wives of his companions who had been martyred on the battlefield. Zaynab was the wife of 'Ubayda b. al-Harith b. al-Muttalib who was martyred on the day of Badr, she was not of marked beauty, but she was known for her good nature and kindness to the extent that she became nicknamed as the 'mother of the needy.' She had passed her youth, but the Messenger of Allah (pbuh) married her in the second year of the Hijra, after the battle of Badr and after the martyrdom of her husband. She stayed with Him for only two years until Allah (swt) took her soul. Which meant after Khadija, she was the only one who died before the Prophet. As for Umm Salama, she was the wife of Abu Salama, who had a number of sons with her. Abu Salama was injured in Uhud then recovered from it, so the Prophet agreed to let Him fight Banu Asad. He defeated them and returned to Madinah victorious with the booty that had been captured but the injury He sustained at Uhud worsened and He remained ill until his death shortly thereafter. The Prophet (pbuh) was present while He was on his deathbed, and He remained by his side, praying for his well being until He died. The Prophet (pbuh) then closed Abu Salama's eyes. Four months after his death, the Messenger (pbuh) proposed to Umm Salama herself, but she made excuses that she had a big family and that she had passed her youth. The Prophet however persisted until He married her and He Himself saw to her children's upbringing. So it is clear that the Messenger married those two wives to care for the family of two of his companions after their death.

As for his marriage to Umm Habiba bint Abu Sufyan (ra), this was a marriage to a believing woman who had migrated to Abbysinia fleeing with her deen intact. She had remained patient in the path of Islam after her husband had apostatised. That is because this Umm Habiba was Ramla the daughter of Abu Sufyan, the leader of Makkah and head of the Mushrikin. She was the wife of a cousin (son of a paternal aunt) of the Messenger of Allah (pbuh), 'Ubayd Allah b. Jahsh al-Asadi. 'Ubayd Allah embraced Islam with his wife Ramla whilst her father was still upon kufr. She was afraid of hurting her father so she migrated, encumbered by her pregnancy, with her husband to Abbysinia. There in the place of refuge, Ramla gave birth to her daughter Habiba bint 'Ubayd Allah by whom she was named. So she came to be called Umm Habiba although her husband 'Ubayd Allah b. Jahsh did not take long before He left the fold of Islam and professed his belief in Christianity, the religion of the Abbysinians and tried to take his wife Ramla away from Islam, but she patiently persevered in her deen. Then the Messenger of Allah (pbuh) sent for the Negus delegating Him to perform the marriage of Umm Habiba to the Messenger of Allah (pbuh). The Negus informed Umm Habiba of this, so she delegated Khalid b. Sa'id b. al-'As to give her in marriage, and her marriage contract with the Messenger (pbuh) took place. Khalid undertook the marriage contract on her behalf and the Negus for the Messenger of Allah (pbuh). When the Muhajirin of Abbysinia returned to Madinah after the battle of Khaybar, Umm Habiba returned with them and entered the house of the Messenger of Allah (pbuh). Madinah celebrated the wedding of the Messenger to Umm Habiba and she remained in his house.

As for his (pbuh) marriage to Zaynab bint Jahsh this showed legislation for a number of issues. It was legislation to demolish what was called equivalence (matching) between the man and the woman, in marrying a cousin (daughter of his paternal aunt), and who was from the leaders of the Quraish that was married to a former slave that had been freed. It showed the legislation for the destruction of what had become established amongst them in Jahiliyah, in that adopting a son is like one's own son, so one cannot marry his wife. Muhammad (pbuh) married the wife of his freedman (Zayd) whom He had freed, after her divorce from Him (Zayd) in order to destroy those customs. The account of the Messenger's marriage to Zaynab bint Jahsh was that Zaynab bint Jahsh was a daughter of Umayma bint 'Abd al-Muttalib the paternal aunt of the Messenger (pbuh). She was raised under his care and attention and because of this, she was to Him like a daughter or a younger sister. He used to know her and knew whether she was attractive or not before she had married Zayd, and He had seen her from the time she was an infant crawling, until her childhood and through to her adolescent years. She was not a stranger to the Messenger (pbuh), but rather she was similar in position to his daughter. He (peace and blessings be upon Him) proposed to her on behalf of his freed slave Zayd but her brother 'Abd Allah b. Jahsh refused for his sister, being that she was from Quraish and a Hashimite in addition to being a daughter of the aunt of the Messenger of Allah, to be the bride of a slave bought by Khadija and later freed by Muhammad. He felt that this was a great shame for Zaynab as it used to be a great dishonour for the Arabs, as daughters of the nobility did not marry slaves even if they were given their freedom. But Muhammad (pbuh). wanted these considerations which existed within people solely on the basis of tribalism to be erased and for them to comprehend that there is no superiority of an Arab over a non-Arab except in Taqwa and to understand Allah (swt)'s saying:

“Verily, the most honourable of you with Allah is that (believer) who has more taqwa”. [Al- Hujurat: 13]

He did not consider it right that a woman from other than his family should be pushed to do this. So, Zaynab bint Jahsh, daughter of his aunt, became the one to depart from the traditions of the Arabs and to destroy their customs, paying no attention to what the people may say about her, which she was afraid to hear. He let Zayd, his slave whom He had adopted and who gained the right, due to the customs and traditions of the Arabs, to inherit from Him like the rest of his sons, to be the one who would marry Zaynab. This was so that He would be ready for the sacrifice that the All-Wise Legislator had prepared for those who were adopted and taken as sons. The Messenger (pbuh) insisted that Zaynab and her brother 'Abdullah accept Zayd, his freed slave, as her husband. However Zaynab persisted in her refusal as did her brother 'Abdullah. As a result Allah (swt) revealed his (swt) saying:

“It is not for a believer, man or woman, when Allah and his Messenger have decreed a matter that they should have any option in their decision. And whoever disobeys Allah and his Messenger, He has indeed strayed in a plain error” [Al- Ahzab: 36]

Hence, nothing remained for 'Abdullah and Zaynab other than to submit to Allah's will, so they said: 'We consent O Messenger of Allah (pbuh).' Zayd consummated his marriage with Zaynab after the Prophet had sent her the dowry. However, married life between Zayd and Zaynab was not good; on the contrary, from the start it was unsettled and embittered and continued to be unsettled and embittered. Zaynab, herself was not happy with this marriage after it had taken place even though it was a command from Allah and his Messenger. She did not obey her husband, and she did not soften in her approach towards Him. Rather, she used to boast to Zayd that the bondage of slavery had not befallen her and she made life difficult for Him. Zayd complained to the Prophet (pbuh) on numerous occasions and explained to Him about her bad treatment of Him. He sought permission from the Prophet (pbuh) a number of times to divorce her. The Prophet used to reply: “Hold on to your wife”. Allah (swt) revealed to the Messenger that Zaynab will be one of his wives. This was distressing for the Prophet (pbuh) who feared that people will say that Muhammad has married his son's wife and will censure Him for that since He (pbuh) had adopted Zayd as a son. Therefore, He did not want Zayd to divorce her, but Zayd urged the Prophet (pbuh) to allow Him to divorce her. Despite the fact that the Prophet knew that she would be one of his wives as Allah (swt) had informed Him by way of revelation, He still said to Zayd: “Keep your wife to yourself, and fear Allah”. As a result of this Allah mildly reproached Him since He told Him that He had informed Him that He would marry Him to her and that He was concealing within Himself that which Allah will make known. This is the meaning of his (swt) saying:

“But you did hide in yourself that which Allah will make manifest “. [Al- Ahzab: 37]

The matter that He concealed was the knowledge that Zaynab will be his wife even though she was the wife of someone He had adopted. This is what Allah would make manifest afterwards, which was his marriage to a divorcee of someone He had adopted as his son. The reason for the Messenger's concealment of this marriage, which Allah later made manifest, is that it was the custom of the Arabs to keep their adopted sons/daughters in their houses and ensure links with their relations. They used to give the 'da'iyy' i.e. the person who is adopted, all the rights of a son. All the rules of a son were applied to them even in inheritance and the esteem of lineage. So when Allah informed the Messenger that Zaynab, the wife of his freed slave whom He had adopted will be his wife He hid this knowledge and strictly insisted that Zayd hold on to his wife and not to divorce her, despite Zayd's insistence, his complaints about her, and the lack of harmony between them and concord in their marital life ever since He married her. However, Zayd insisted on divorcing her so the Messenger gave Him permission, and He eventually divorced her without any knowledge that the Messenger would marry her and without Zaynab herself knowing that the Messenger would take her as his wife this is illustrated by what Ahmad, Muslim and an-Nisa'i have reported via Sulayman b. al-Mughira on the authority of Thabit that Anas said: “When the 'Iddah (divorce period) of Zaynab was over, Allah's Messenger  said to Zayd to mention Him to her. So I (Zayd) went to her and said: “O Zaynab rejoice! Allah's Messenger sent me to propose to you on his behalf.” She said: “I do not do anything until I see my Lord order me.” So she stood at her place of worship and Allah's Messenger came to her without permission when the verses of the Qur'an (pertaining to her marriage) were revealed:

“So when Zayd had accomplished his desire from her (i.e. divorced her), We gave her to you in marriage, so that (in future) there may be no sin to the believers in respect of (the marriage of) the wives of their adopted sons.''[Al- Ahzab: 37]

If either she or Zayd had known then He would not have said to her 'rejoice,' nor she said 'until I see my Lord order me' i.e. she left the matter to Allah to guide her in this marriage. The 'Illa of this marriage is so that there is no sin on the believer in marrying the wife of someone they had adopted.

This is the account of the Messenger's marriages to his wives. It is clear from the account of the marriages that each one was for an objective other than the mere aim of marrying. The intent of the Prophet's marriage to more than four wives and why this number is unique to Him from the rest of his Ummah becomes clear. The fact that the objective was not the agitation of the procreation instinct of a man who had passed the age of fifty is quite evident, since He was a man who was busy with the Da'wa, engaged in conveying the Message of his Lord to the world so that He may revive a people and mould them into an Ummah whose only aim in life was to carry the Message of Allah to the world. his aim was to build the society anew after He had demolished the previous edifice, and establish a state pushing ahead the world before it, in order to carry the Call of Islam to the people. Anyone who's mind is occupied with the revival of an Ummah, the establishment of a state, the building of a society, and the carrying of the Message to the world cannot be preoccupied by women devoting Himself to them and marrying one every year. Rather, He carried his Da'wah and He enjoyed a normal married life like any other human.

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Thursday, 12 January 2017 15:38

13 Polygyny

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Allah (swt) has said in his Noble Book:

“Marry women of your choice, two or three, or four but if you fear that you shall not be able to deal justly (with them), then only one or your concubines. That is more fitting so that you do not deviate from the right course” [An- Nisa: 3]

This verse was revealed to the Prophet (pbuh) in the 8th year of the Hijra. It was revealed to limit the number of wives one can marry to four. At the time of revelation of this verse there was no limit to the number of wives one could marry. On reading and understanding the verse it becomes clear that it was revealed to limit the number of wives to four. The meaning of the verse is: marry of the women, two, three or four who are permitted and agreeable to you. Twos, threes and fours are mentioned instead of repeated enumerations. i.e. marry the women of your choice from these mentioned numbers twos, threes and fours. The speech is addressed to everybody, therefore there has to be a repetition so that each suitor who wishes to marry a number of women can choose whatever He wants of number on condition that the combination He desires is restricted to this number. In other words, each suitor who wishes to marry more than one woman can marry as many as He likes from the number that is made optional for Him. Just as we would say to a group distribute this money. Let's say there was a thousand dinars for example.We would say; distribute dinars by twos, threes and fours. If you made your statement in the singular form then it would have no meaning. So the expression twos, threes and fours is inevitable so that each individual can choose what He wants from the specific number in the expression. So when Allah (swt) says each one of you can marry the woman of his choice two, three or four, this effectively means: marry all of you twos, threes or fours. i.e. each of you can marry two, three or four. As for the meaning of his (swt) saying:

“But if you fear that you shall not be able to deal justly (with them), then marry only one” [An- Nisa: 3]

This means that if you fear that you shall not be able deal with these numbers of wives justly then you should simply choose one wife and relinquish the marriage to more than one wife immediately. The issue revolves around justice. Wherever you find it just, adhere to it. Marrying only one wife is closer to not doing injustice. So that you should not deviate (from the right course of action) means it is more fitting so that you do not do injustice, because the deviation here means injustice. It is said the ruler has deviated from the right course when He has committed injustice. 'Aisha (ra) narrated about the Prophet (pbuh) that He said: “So that you may not deviate (from the right course): so that you do not make injustice.”

The Ayah permits the plurality of wives and limits it to four. However, it orders justice between them and enjoins the restriction to one wife when it is feared there would be injustice, because the restriction to one wife when there is fear of committing injustice is closer to avoiding injustice, a matter for which a Muslim is obliged.

Indeed it should be known that the justice mentioned here is not a condition for marrying more than one wife. Rather it is a ruling for the man who wishes to marry a number of wives, that He must observe in the event of marrying more than one wife, and an exhortation to restrict Himself to one wife if He fears He will not be able to deal with them justly. This is because the meaning of the sentence is completed in the verse by his (pbuh) saying: “Marry women of your choice, twos or threes, or four”. [4:3] this means there is an absolute permissibility of marrying more than one wife. Thus, the meaning of the sentence is completed. In another statement, He (pbuh) said: “But if you fear”. The phrase “But if you fear” cannot result in being a condition because it is not linked with the first verse as a conditional clause. Rather it is a resumption of a new statement. If Allah  had wished to make it a condition then He would have said: “Marry women of your choice, twos or threes, or fours if you can deal with them justly”, but that is not the case, so it is established that justice is not a condition, rather it is another Shar’a ruling different to the first rule. So firstly He  permitted the plurality of marriages up to four, then He came with another ruling which is that it is better to restrict oneself to one wife when He believes that marriage to more than one wife will make Him incapable of dealing with them in a just manner.

From the above it becomes clear that Allah (swt) has permitted polygyny without restriction, condition or any recourse to any justification. Rather, every Muslim is given the right to marry two, three or four wives of his choice. That is why we find Allah (swt) saying: “women of your choice” [4:3] i.e. those women whom you find agreeable to you. It is clear that Allah (swt) has ordered us to be just between our wives and exhorted us that if we fear we could not be able to do justice between our wives, we restrict ourselves to just one wife because the restriction of marrying one wife make us more likely not to commit injustice.

As for what constitutes desired justice between wives, it is not 'absolute justice'. Rather it is the justice in marriage between wives which is within the ability of the man to undertake, because Allah does not impose on man that which He cannot bear. He (swt) said:

“Allah burdens not a person beyond his scope” [Al- Baqarah: 286]

It is true that the phrase 'be just' has been mentioned in the verse with a general import, as He (swt) says:

“But if you fear that you shall not be able to deal justly (with them)” [An- Nisa: 3]

This encompasses all aspects of justice, but this general order has been specified in another verse to what the human has the capability to do. Thus, Allah (swt) said:

“You will never be able to do perfect justice between wives even if it is your ardent desire, so do not incline completely to one of them so as to leave the other suspended” [An- Nisa: 129]

Allah (swt) has clarified in the verse that it is impossible for us to realise justice and equality between wives, such that no inclination (towards one of them) would ever happen nor increase or decrease in what is obligatory upon us in providing for them. Due to this He (swt) has lifted from us the complete and full extent of justice and He (swt) has not imposed on us except that which one can bear on condition that we exert our utmost effort and energy. For the imposition of what one is not able to do is tantamount to oppression:

“And your Lord treats no one with oppression” [Al-Kahf: 49] And He (swt) says:

“So do not incline completely to one of them” [An- Nisa: 129] as a comment on his (swt) saying: “You will never be able to do perfect justice” [An- Nisa: 129] and as a reference for it, is an evidence that its meaning is: you will never be able to deal with them justly and equally with regards to love. The correct understanding is that it is possible to be just in everything other than love. This is what the previous verse obliges, as it has specified the desired justice to be other than love, and made love and sexual intercourse excluded from justice, because it is not obliged in these two issues, since a human is not able to be equal in his love. This meaning is supported by what has been reported about 'Aisha (ra) that she said: “The Messenger of Allah  used to distribute things and do justice to all and used to say, “Oh My God, this is my distribution of what is in my control, but do not blame me for what is in Your control and over which I have no control”. i.e. his heart. It has been narrated from Ibn 'Abbas (ra) concerning the saying of Allah (swt):

“You will never be able to do perfect justice between wives” [An- Nisa: 129]. He said “this is with regards to love and sexual intercourse.” Allah (swt) has ordered us to abstain from completely inclining towards one wife. This means He has permitted the inclination because the prohibition of the complete inclination indicates the permissibility of the inclination. An illustration of this is the prohibition of unrestrained and excessive generosity mentioned in his (swt) saying:

“Nor stretch your hand forth to its utmost reach” [Al- Isra: 29]

Which means it is permitted to stretch your hand by giving to the needy. Therefore, Allah (swt) has permitted the husband to incline towards some of his wives to the exclusion of others. However, He has forbidden this inclination to include all matters. Rather, the inclination should be to whatever this inclination applies, which is the love and desire. So the meaning of the verse is: refrain from the absolute inclination towards a wife, because if the complete inclination occurs from you, it will leave the other wife suspended, i.e. one who is neither divorced nor possessing a husband. It has been narrated by Abu Hurayra (ra) that the Prophet (pbuh) said: “Whosoever has two wives and He inclines towards one to the exclusion of the other, He will come on the Day of Judgement with half his body dropping or bending down”.

Thus, the justice which is obligatory upon a husband is the equality between his wives in that which He has control over such as staying overnight, providing food, clothing and lodging etc. As for what falls under the meaning of inclination, which is love and desire, It is not obligatory to be just in these things because that is impossible, and they are excluded by the Qur'an.

This is the subject of polygyny as mentioned in the Shar’a texts. By studying these texts and limiting oneself to their Shar’a and linguistic meanings in terms of what they indicate and what is deduced from them, it becomes clear that Allah (swt) has in a general manner permitted the marriage to more than one wife (up to four) without restriction or condition. The text concerning this matter did not include any cause ('Illa). On the contrary, Allah (swt) has expressed Himself in a way which indicates the rejection of a justification. So He (swt) said:

“(Marry) women of your choice”. [An- Nisa: 3]

Therefore, we must stop at the limit of the Shar’a text and at what is derived from it in terms of Shari’ah rule. It is not permitted to justify this rule with any cause ('Illa), or justify it with justice, need or anything else, because the text did not bring 'Illa for the rule nor can any reason (Illa) be found in any other Shar’a text. The cause (Illa) of the rule should be a Shar’a reason i.e. there must be a text to mention it so that the rule which is derived from it can correctly be considered a Shar’a rule. If the reason is rational or not mentioned in any text, then the rule which is derived by means of it will not be a Shar’a rule. Rather it will be a man-made law and it will be Haram to adopt, nor will it be permitted to apply it. This is because it will be a Kufr rule, since any rule which is not a Shar’a rule is a Kufr rule. However, since the definition of the Hukm Shar'i (Shari’ah rule) being 'the speech of the Legislator' makes it inevitable that the rule is derived from the speech of the Legislator, either explicitly mentioned in the text, or from its meaning, or by indication, or due to the presence of a sign (Amara) in the text which points to the Shar’a rule, such that every rule which has that sign (Amara) will be a divine rule. This sign (Amara) is the Shar’a reason (Illa Shar'iyya) which is mentioned in the text either explicitly or by indication, inference or analogy. If this sign (Amara) i.e. this Illah is not found in the text then it has no value. Consequently, it becomes clear that it is not allowed to justify polygyny with reason (Illa) since no Illa is found in the speech of the Legislator. An Illa has no value in making a rule into a Shar’a rule except when it is found in the speech of the Legislator.

However, the absence of an explanation of a Shar’a rule by an Illa does not mean it is not permitted to explain the reality of what will take place in terms of the effect of this Shar’a rule and the reality of what it solves in terms of problems. Rather this is an explanation of a reality and not justification for a rule. The difference between explaining the reality and justifying a rule, is that the justification of a rule by an Illa, is that the Illa should constantly exist in the rule, and analogy of other things to this rule is made whenever the 'Illa is found in them. As for explaining the reality this is the clarification of the reality at the point in time when it is explained. The reality may cease, so it is incorrect to make an analogy to it with other things. Hence, it becomes clear from the effect of polygyny of wives that in the community in which it is permitted there will not be a plurality of mistresses, and in communities which forbid the plurality of wives there will be a plurality of mistresses. In addition, polygyny solves many other problems, which take place in a human community in its capacity as a human community, which depends on polygyny to solve them. The following are some examples of these problems:

1. There are some men with unusual dispositions, who are unable to satisfy themselves with one wife. Either such men will oppress or hurt their only wife or they will look at other women if they find the door shut in front of them to take a second, third or fourth wife. There is a danger of this happening in terms of the spread of indecency and fornication amongst people and the creation of suspicion and doubts within families. Therefore, it is essential that a person who possesses such a disposition should have the opportunity to satisfy his strong urge in a halal manner i.e. in a way that Allah (swt) has legislated.

2. It may be that a woman is barren and therefore cannot bear children but her husband still loves her dearly and vice versa, which makes them determined to continue with their happy married life. The husband may however desire offspring and have a love for children. If it is not permitted for Him to marry another wife and He finds no options available to Him He will have to either divorce his first wife, which would lead to the destruction of the stability of the household and the end of a happy marriage, or He is deprived from enjoying offspring. This will lead to the suppression of the aspect of fatherhood present in the procreation instinct. Therefore, it is essential that such a spouse is given the opportunity to marry another wife in addition to the existing wife so that He can have the offspring which He desires.

3. The wife may be ill with a disease, which excuses her from having conjugal relations or looking after the house and seeing to the husband and children. She might still be cherished and dearly loved by her husband who might have no wish to divorce her, although He cannot live his life properly with just her alone, and consequently without another wife. It is imperative that in such a situation the opportunity is given to Him to marry more than one wife.

4. Wars and uprisings might take place which claim the lives of thousands, even millions of men which may upset the balance between the numbers of men and women, as has happened actually, especially in Europe, in the First and Second World War. If a man is not able to marry more than one wife what are the rest of the women supposed to do? They will be deprived from family life and the happiness of a home and the ease and comfort of married life, not to mention what the procreation instinct can lead to in terms of the danger to morality.

5. It may be that in a nation, people or region the number of males and females is not equal. The number of females may be higher than males so the numerical balance between men and women is upset. And this is almost the case amongst many peoples and nations. In such a situation there is no solution to this problem except the permissibility of polygyny.

These are real problems faced in the human community among peoples and nations. If polygyny is outlawed then such problems remain, since there is no solution for these problems except through allowing polygyny. Hence, polygyny should be permitted so that these problems which humans face are dealt with. Indeed Islam has permitted polygyny but has not obliged it. The permissibility of polygyny is inevitable although it should be known that the situations outlined above and their like which may exist among humans and in human societies are real problems which occur but they are not an Illa (cause) for marrying more than one wife nor are they a condition for the permissibility of polygyny. Rather, the man is allowed to marry a second, third and fourth wife whether problems which require polygyny as a solution has arisen or not. Because Allah (swt) says:

“Marry women of your choice, two or three, or four” [An- Nisa: 3] And He (swt) said: “of your choice”. He (swt) has made this general without restriction or condition. As for the restriction of marrying one wife, the Shari’ah has preferred this in only one situation, which is where there is a fear that one is not able to do justice between his wives. As for anything other than that, there is no expressed preference to marry only one in any of the texts. In spite of the fact that polygyny is a Shar’a ruling found in the clear text of the Qur'an, Capitalist culture and Western propaganda, particularly that against Islam as opposed to other religions, has portrayed marriage to more than one wife as a hideous and repugnant practice and depicted it as a deficiency and a source of shame in the Deen. The motive for this is not because a defect has been noticed in the laws of Allah (swt) but in order to disparage Islam, and there is no motive for it other than this. This propaganda has greatly affected Muslims, particularly the ruling faction and the educated youth. This drove those who were moved by Islamic emotions to stand for Islam. Such Muslims adopted false interpretations to forbid polygyny, thus they were actually influenced by the false propaganda circulated by the enemies of Islam. That is why we must warn the Muslims that pretty actions (Hasan) are what the Shar’a deems to be pretty (Hasan) and ugly actions (Qabeeh) are what the Shar’a deems to be ugly (Qabeeh), and whatever the Shar’a permits is pretty (Hasan) and whatever the Shar’a forbids is ugly (Qabeeh). Also we must warn the Muslims that polygyny, whether it has a tangible good effect or not, and whether it solves problems which have occurred or not, the Shari’ah has permitted it, and the Qur'an has stated that clearly. Therefore it is a pretty action and the prohibition of polygyny is ugly, because it is a Kufr rule. It must be made clear that Islam did not make polygyny Fard on the Muslims nor Mandub (preferred). Rather, it made it one of the permissible things, which is allowed for them to do if they wished to do so. The fact that Islam made it permissible means that it has placed before the people a solution that they can use whenever it is necessary to do so, and it has permitted them not to deprive themselves from the women of their choice if in their view they were to incline towards them. Thus, permitting polygyny and not making it obligatory is what makes it one of the most effective solutions for humans in the community and society.

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