Muslim Principles of Marrying Al-Kitabiyyah and It Practice in Malawi
MUSLIM PRINCIPLES OF MARRYING AL-KITABIYYAH and its practice in Malawi
by
All Yusuf Andiseni
DISSERTATION submitted in fulfilment of requirements for the degree
MASTER OF ARTS
in
Islamic Studies
in the
FACULTY OF ARTS at the RAND AFRIKAANS UNIVERSITY
April 1997
Supervisors: Prof ARI Doi Prof JFJ van Rensburg i
Declaration
I declare that Muslim Principles of Marrying Al- Kitabiyyah and its practice in Malawi is my own work and that all the sources which I have used or quoted have been indicated and acknowledged by appropriate references.
Ali Yu-'f Andiseni ii
Dedication
This thesis is dedicated to my mother whose life style was an, inspiration to me since I was young. She instilled the value of Education and the illumination of Islam within me. This produced the energy and strength within myself to undertake this Research. Unfortunately she did not live long enough to see the fruits of her efforts. May Allah grant her an elevated stage in Paradise. iii
Acknowledgements
All praise due to Allah who enabled me to pursue my post graduate studies and bestowed upon me the ability to complete this thesis.
Firstly, I am deeply indebted to Professor lAbd al-Rabman I.
Doi, my supervisor and constant guide for sacrificing his time in guiding me with invaluable suggestions and advices while preparing this thesis. Had I riot constantly worked in the shadow of his guidance and close direction, this thesis would not have reached the desired level of quality.
I am equally thankful to Professor JFJ van Rensburg, my co- supervisor, who provided me with invaluable guidance on how to collect the source-material for my thesis, which books were the best to be consulted, and where they were to be located.
I am also grateful to Professor J.A. Naude, for his valuable advice and personal interest in my study. iv
Special thanks should go to my associate brothers, also undertaking their respective researches: Br. S.I. Omar, Br.
I.S. Muhammad and Ml. Khalid Dhorat, for their valuable ideas as far as the structure of the thesis, developing of ideas and the grammatical aspects are concerned. A word of thanks should also go to Ml. Muhammad Ashraf Dockrat for his constant encouragement and interest in my work.
The following brothers have been generous and supportive of my endeavours: Ml. Mobeen Cassim, Ml. Michael Mumisa and Ml.
Abdullah Jeena.
I would be failing in my duty if I were to ignore the support given by my parents, relatives, wife and child. Being away from home and my family, I wish to record my deepest appreciation to my wife, Rasheedah, and child, Fand, for.their moral support, patience, and tolerance throughout the period I spent while conducting this research in a foreign country. v
I take this opportunity to thank them once again for their thoughtful appreciation. May Allah reward them all for their contributions.
Ali Yusuf Andiseni vi
ABSTRACT
Mankind today lives in a predominantly heterogeneous and metropolitan society. At all stages of life, social, political, spiritual, there is constantly a diffusion of cultures, ideas and beliefs. South Africa until 1994 was the only example of a country where the broader ethnic groups were separated from each other. Besides this country, all other countries are exposed to this amalgamation and inter-action with each other on a daily basis.
Although a mixed society augers well for the propagation and easy penetration of Islam within the populace, it also has its drawbacks. Allah says:
0 mankind! We created you from a single (pair)of a
male and a female, and made you into nations and
tribes, that you may know each other (not that you
may despise each other). Verily, the most honoured
of you in the sight of Allah is (he who is) the
most righteous of you. 1
1 Qur'an 49:13 vii
Upon pondering the deeper meaning of the above verse, Allah has prescribed Taqw& (piety and righteousness) as a means of solving any problem resulting from the interaction of different tribes, races, and nations which could be at times a terribly irreconcilable one.
The significant number of Muslims in any given society and especially Malawian Muslim society are ignorant of the Muslim
Principles of marrying Al-Kitabiyyah (Woman of the Book). That is why we notice an irretrievable breakdown of many families whose husband happen to be a Muslim and the wife is a
Kitabiyyah. This type of marriage has caused, and is still causing many problems to the social life of the Malawian
Muslims. Children of these families do not enjoy that status of being under the loving care of both their mothers and fathers because their marriages does not last long.
It is from this perspective that "Muslim Principles of marrying
Al-Kitabiyyah" was chosen to give right direction for those who wants to marry women of the People of the Book. It deals with one small but significant aspect of interaction-the aspect of inter-marriage of Muslim men with Al-Kitabiyyah. vi i i
Abbreviations
A.H. After the Hijrah
A.C. After Christ etc et cetra i.e. that is p. Page
S.A.W. Salla Allah `Alayh Wasallam
S.W.T. Subhanahu wa Tasala ix
NOTES ON THE TRANSLITERATION OF ARABIC WORDS
The system of transliteration followed in this thesis is as follows:
Letters of the Alphabet (in the order they usually appear)
d b t t z th j gh h f kh d k dh 1 r m z n sh
Vowels and dipthongs a (fathah) a (for the alif ma qablahu fathah)
u (dammah) 11 (for waw ma qablahu dammah)
i (kasrah) i (for ya' ma qablahu kasrah) When the noun or adjective ending in ta' marbatah is indefinite, or is preceded by the definite article, without following hamzah al-wasl, ta' marbeitah is transliterated h.
When the word ending in ta' marbillah is in the construct state and before hamzah al-wasl, ta' marbillah is transliterated t.
The relative adjective is transliterated I and not iy at the end of a word when not followed by hamzah
The a/ of the article is always transliterated as al whether it is followed by a "sun letter" or not i.e. regardless of whether or not it is assimilated in pronunciation to the initial consonant of the word to which it is attached.
Ibn and bin are both transliterated ibn in all positions. xi TABLE OF CONTENTS
Declaration Dedication ii Acknowledgements iii-v Abstract vi-vii Abbreviations viii Notes of Transliteration ix-x Table of contents xi-xv
CHAPTER ONE: Introduction and Orientation 1 Statement of the Problem 1 Aims and objectives 2-3 Methodology 3 Chapterisation 3-5
CHAPTER TWO: Definition of Ahl a1-Kitab 6 2.1 Who are Ahl al-Kitab 7 7 2.2 Ahl al-Kitab in the Qur'an 7-29 2.3 Ahl al-Kitab according to the opinions of the Jurists...29
2.3.1 Hanafi School opinion 29-30 2.3.2 Malik School opinion 30 2.3.3 Opinion of Shafilis 30-31
2.3.4.Hanbali School opinion 31-32 Conclusion 32-37
CHAPTER THREE: Marriage with the People of the Book 38 3.1 Marriage with the People of the Book according to the Qur'an 39-44 xii
3.2 Marriage with the People of the Book according to the
Sunnah and the sayings of theSahabah(R A ) 41-43 3.3 Marriage with the People of the Book according to the opinions of the Jurists 43-68 3.3.1 Marriage with the People of the Book other than Jews and Christians 68 3.3.2 Marriage with the Sabians 68-72 3.3.3 Marriage with Magians 72-76
3.3.4 Marriage with women who follow Suhf (Scriptures) of Prophet Ibrahim and Idris, and Zabur (the holy book Dawal(peace be upon them all) 76-78 3.4 Prohibited Degrees 79
3.4.1 Mutlah (Temporary marriage) 79-95
3.4.2 Shigh&r. marriage 95-98
3.4.3 Nikah Al-Muhallil (Marriage with a tripy divorced
wife) 99-104
3.4.4 Marriage of Muhrim (one who is in the state of /Pram
i.e. in Pilgrims) 104-108
3.4.5 Marriage with a woman during her `Iddah (waiting
period) 108-110
3.4.6 Marriage with a married woman 111-112
3.4.7 Marriage with two women who are related to each other 112-115
3.4.8 Marriage with a Fifth woman 115-117
3.4.9 Marriage with a woman against whom Lilan (Mutual
imprecation) 117-121
3.5 Marriage of a Muslim woman by the People of the
Book 121-143
3.6 Position of Islam when a Muslim woman has been married
by a man from the People of the Book inspite of the
Qur'an and Hadith textuals which forbid it 143-146
CHAPTER FOUR: Marriage with the People of the Book in
the early 'Ummah 147
4.1 Marriage with the People of the Book by the Prophet
(S.A W ) 148-160
4.2 Marriage with the People of the Book by the Companions
of the Prophet (S.A W ) 160
4.2.1 'Uthman (R.A ) 160-164
4.2.2 Sa'd ibn 'Abi Waqqas (R.A ) 164-168 XIV
4.2.3 Talbah ibn 'Ubaidullah (R .A ) 168-169
4.3 Marriage with the Poeple of the Book by the Tabilan
(The Followers of the Companions of the Prophet (S.A.W.) 170
4.3.1 Mujahid 170
4.3.2 'Ikrimah 171-172
4.3.3 Tawas 172-174
4.3.4 Sa'id ibn Al-Musayyab 174-176
4.3.5 Al-Hasan Al-Basri 176-179
CHAPTER FIVE: Guidelines for the treatment of
Al-Kitdbiyyah 180
5.1 Position Al-Kitabiyyah 181-182
5.2 A1-Nafaciah (Maintenance) 182-202
5.3 Ta/aq (Divorce) 202-216
5.4 Khull (Divorce at the Instance of the wife) 216-226
5.5 lIddah (waiting period) 226-234
5.6 Zihar (Injurious Assimilation) 234-237 5.7 Li`an (Mutual Imprecation) 237-242
5.8 'flci' (Vow of Continence) 242-245
5.9 Inheritance 245-249
Conclusion 250 - 253
Bibliography 254 - 266 CHAPTER ONE
Introduction and Orientation
a)Statement of the problem
b)Aims and Objectives
c)Methodology
d)Chapterisation 2 a) STATEMENT OF THE PROBLEM
The emergence of the 20th century has been witnessed by several developments in the fields of education, technology, economics, cultural and interpersonal relationship, information media etc.
These developments are helpful to mankind if they are well utilised. Communication is easy at the present time since people are able to move from one place to another without facing difficulties. The world has become a global village inspite of borders of rivers, lakes, seas and oceans. This has allowed people to interact with each other without difficulties which they could not do some time ago. The information facilities have brought people closer to one another through modern means of transport and communication.
However, these scientific and technological developments alone can not redeem any given society without accompanying theological and social safeguards. On the contrary these developments can affect human society adversely as it has happened in the case of some Muslims who do not know the rights provided to them by Shari`ah (The Islamic Law) nor they are aware of the rights of non Muslims given in the Qur'an and
Sunnah. The rights and responsibilities provided in Islamic Law in the matter of relationship with non-Muslims and in 3 particular Ahl al-Kitab (People of the Book) is grossly
lacking. Some Muslims have ventured in marrying women of Ahl
al-Kitab (People of the Book) and Al-Mushriktina (Polytheists) without properly understanding the dictates of Sharilah and principles laid in Ahwal al-Shakhyiyyah (Law of Personal
status). This has given rise many disputes concerning the
spouses of mixed marriages and their children.
b) AIMS AND OBJECTIVES
This thesis aims at elucidating the basic principles that can be followed by Muslims who may wish to marry Kitabiyyah women, and will draw up guidelines concerning the rights and responsibilities of Muslim man and Kitabiyyah women in such marriages. Marrying women of the book should not be viewed as an open permission granted to a Muslim man to skate to a wrong direction and immerse in falsehood as obtains at the present time among most of the youth of (Malawi) which we have taken as a case study. The same situation prevails in other countries.
Many Muslims, it seems, marry women of the book for the sake of fulfilling their sexual desires and the same is true of women opting for such marriages. 4 c) METHODOLOGY
While conducting this research, I have examined critically:
Primary sources in Muslim scholarship, i.e. Tafsir and
Hadith.
Secondary sources which include Qiyas (Analogy), /jmal
(Consensus opinion of `Ulama'), Masalih al-Mursalah (Public.
Interest), Fiqh works and Fatawa materials in respect of the
status of Kitabiyyah women and their marriages with Muslim
men.
Interviews with Muslims who have married Kitabiyyah women in
order to elucidate problems arising of such marriages.
.I have had personal interviews with lUlarna', Muftis, Church
leaders in order to interpret the case studies contained in
this thesis.
d) CHAPTERISATION
I have divided my thesis into five chapters. Chapter one deals with the Introduction of the thesis in which I have explained the problem, aims and objectives and methodology of the study.
Chapter two defines Ahl al-Kitab (People of Book) according to the Qur'an, the Sunnah and the opinions of the Jurists. 5
Chapter three elaborates the status and rulings of marrying Al-
Kitabiyyah (woman of the Book) from the Qur'an, Sunnah and the opinions of the Jurists in detail. Case studies which indicate the problems of this type of marriage have been explicated in this chapter within the religious and social spheres. I have stated the rational behind the Islamic rule which allows Muslim men to marry women of the People of the Book. I have also elucidated how a Muslim woman married to a non-Muslim is supposed to be treated in either an Islamic society or in a multi-religious one.
In Chapter four, I have mentioned prevalence of the practice of this type of marriage in the early Muslim 'Ummah (nation) starting with the Prophet Muhammad (S.A.W.). Did their such marriages affect their faith or not? Did they face in their marriages all the problems which the present Muslims who contract these marriages do? I have also explored biographies of some of those who married Al-Kitabiyyah and mentioned them briefly.
Chapter five gives constructive suggestions in respect of treatment of the Kitabiyyah. It is critically examining the 6 guidelines for treatment of Al-Kitabiyyah from the Qur'an, the
Sunnah and the opinions of the Jurists. I have also explained in this chapter the Islamic view point of the inheritance of
Al-Kitabiyyah.
In my conclusion, I have summarised the whole issue of Muslim
Principles of marrying women of the Book. CHAPTER TWO
Definition of Ahl al-Kitab
1.Who are Ahl al-Kitab
2.Ahl al-Kitab in the Qur'an and in
the Sunnah
3.Ahl al-Kitab in the Opinions of
the Jurists 2.1 Who are Ahl al-Kitab?
Kitab is an Arabic word which means a book. The word Al-Kitab used in the Qur'an refers to the Books which are Kutub al-
Samawiyyah, the heavenly books or (scriptures). In the Qur'an the word A1-Kitab has been used for other scriptures like
Taurah, Injil, Zabar, Suhf Ibrahim and others 113 times. The word Al-Kitab for the Qur'an is used 78 times. The term Ahl al-
Kitab, the People of the Book, who are the recipients of the scriptures, is used 30 times. The term 'Otu al-Kitab which literally mean "those who have been given the Book", also means
People of the Book and is used 18 times in the Qur'an.
Ahl Al-Kitab (People of the Book) are the followers of Prophet
Moses and Jesus (Peace be upon them) who are the recipients of
Taurah and Injil respectively.'
Al-Mauch:1A Abu Al-'A`la, Tafhim Al-Qur'an, Vol.I p.447 9
2.2 Ahl al-Kitab in the Qur'an
Ahl al-Kitab have been mentioned in the Qur'an in so many
places in different matters concerning them. At first, Islam,
as Ummah Al-Dalwah (Nation of Propagation), calls Ahl al-Kitab
to believe in what they were called for, before Prophet
Muhammad (SAW) came.
Allah (SWT) says:
Say: "0 People Of the Book! come to common
terms as between us and you: that we worship
none but Allah; that we associate no partners
with Him; that we erect not, from among
ourselves, Lords and patrons other than Allah."
If then they turn back, Say ye: "Bear witness
that we are Muslims (bowing to Allah's will)."2
2 Qur'an 3:64 1 0
In this verse, Allah (SWT) is commanding His Prophet Muhammad
(SAW) and through him the entire 'Ummah to call the People of the Book with fairness and justice and without doing any coercion on them. This call is to worship one Allah and
3 associate no one with Him. Indeed the Prophet Muhammad (SAW) did call the People of the Book to believe in what they were called for, by their Prophets to believe in the concept of
TawPid (Oneness of Allah). He sent some of his companions to different parts of the world to call People of the Book to believe in the monotheistic faith. It is narrated by Ibn 'Abbas
(RA) in a long Hadith that he, (Prophet Muhammad, may peace be upon him), sent Debyat Al-Kalbi (one of his companions) to the
Kingdom of Byzantine with a letter calling the King, Heracleus, to follow the monotheistic faith without associating any partner with Allah. The letter read:
"In the name of Allah, the most Beneficent, the most Merciful.
(This letter is) from Muhammad, messenger of Allah, to
Al-Sabilni, Muhammad ibn 'Ali, Safwat Maktabat Jeddah, Fifth Edition, Vol. l :208. 11
Heracleus, the Sovereign of Byzantine. Peace be upon him who follows the right path. Now then, I call you to embrace the religion of submission to only one God (Islam). Accept Islam, the religion of submission as the word Islam means, and you will be saved form Allah's punishment; emrace Islam and Allah will give you a double reward, but if you reject this message, you will be responsible for the disobedience of all the people of your Kingdom. Then Allah (Noted the following verse of the
Holy Qur'an:
11 0 People of the Book! Come to a message which
is similar between us and you, that we worship
none but Allah bear witness that we
are those who submit(Muslims)."4
Allah's message to the People of the Book is also contained in the Qur'an in the following words:
0 ye People of the Book! Believe in what We have
(now) revealed, confirming what was revealed to
you earlier, before We obliterate some features
4 Qur'an 3:64 12
or faces and turn front to back or back to front
beyond all recognition. 5
In this verse, we understand that, it is obligatory for every person to have belief in all the books of Allah. It is also a warning to Ahl al-Kitab and a lesson to the recipient of the
Qur'an another book of Allah. 6
The Prophet Muhammad (SAW) once said:
"By Him (Allah) in Whose Hand is Muhammad's soul,
there is none from amongst the Ahl al-Kitab who
hears about the last messenger and then dies
without believing in the message with which I have
been sent (i.e. monotheism), but he will be from
the dwellers of the Fire."'
In this tradition the Prophet Muhammad (SAW) is warning Ahl al-
Kitab that there is no Paradise in the Hereafter for those who
5 Qur'an 4:47
6 Al-Sabfini, Safwat Al-Tafasir, Maktabat Jeddah, Fifth Edition, Vol.1:280-281. also see The Noble Qur'an, Vol. 1:359 7 Al-Nisabfiri, Al-Imam Muslim, Al-Sahih, Vol.I, Chapter No.240 13
do not believe in the last Prophet's message. So there is no
excuse for them as Allah states:
O People of the Book ! Now hath come unto you,
making (things) clear unto you, Our Messenger,
after the break (in series of) our messengers,
lest you should say:- "There came unto us no
bringer of glad tidings and no warner": but now
hath come unto you a bringer of glad tidings and
a warner. And Allah hath power over all things. 8
And in a similar verse Qur'an explains:
O people of the Book! there hath come to you Our
Messenger, revealing to you much that ye ignored
in the Book, and passing over much (that is now
unnecessary): there hath come to you from Allah
a (new) light and a clear Book. 9
In this verse Allah (SWT) is telling Ahl al-Kitab that Prophet
Muhammad (SAW) has come to explain to them much of what they
8 Qur'an 5:19 9 Qur'an 5:15 14 already knew but ignored. It is reported by 'Abdullah ibn 'Umar
(R.A.) that:
"The Israelites came to Allah's Messenger (SAW)
and told him that a man and a woman from amongst
them had committed illegal sexual intercourse.
Allah's Messenger (SAW) said to them, 'What do
you find in the Taurah (Old Testament) about the
legal punishment of Ar-Rajm (stoning)?' They
replied, '(But) we announce their crime and lash
them. Abdullah ibn Salam (who was at one time
believer in Taurah and an Israelite) said, 'You
are telling a lie; the Taurah contains the order
of Rajm.' They brought and opened the Taurah and
one of them placed his hand on the verse of Rajm
and read the one which followed it. 'Abdullah
ibn Salam said to him, 'Lift your hand.' When he
lifted his hand, the verse of Rajm 'appeared
there. They said, `Muhammad (SAW) has told the
truth; the Taurah has the verse of Rajm.' The 15
Prophet Muhammad (SAW) then gave the order that
Rajm punishment should be carried out. 1°
This above tradition of the Prophet (S.A.W.) tells us how some
Ahl al-Kitab used to ignore what was already revealed to them.
After being called to renew their faith, some of the Ahl al-
Kitab believed in what the Prophet Muhammad (SAW) was
preaching. The Qur'an praises Ahl al-Kitab for their virtuous
behaviour in the following verse:
Not all of them are alike: of the People of the
Book, there is a group that stand (for the
right); they rehearse the Signs of Allfih all
night long, and they prostrate themselves in
adoration."
Verily, there were among the Ahl al-Kitab who believed in what
Prophet Muhammad (SAW) propagated like 'Abdullah ibn Salam,
Al-Bukhari, Abil `Abdillah Muhammad Ibn liadith No.829, Vol.1V, p.532-533. 11 Qur'an 3:113 16
Ka'b al-Ahbar,Wahb ibn Manbah, 'Abd al-'Aziz ibn 'Abd al-Malik ibn Juraij etc.
In Abyssinia, (which is Ethiopia today), Negus the King was one of those who accepted the message of Islam when a group of immigrant Muslims led by Ja'far went to seek shelter with him and convert to him the teachings of Islam and that of the
Prophet Muhammad (S.A.W). Abu Hurairah (RA) reported that:
The messenger of Allah (S.A.W.) gave us the news
of the death of Ashama (Negus), the ruler of
Abyssinia, on the day when he died, and he said
(to us): Beg pardon for your brother. Ibn Shihab
said that Sa'id ibn Musayyib had told him that
Abe Hurairah had narrated to him that the
Messenger of Allah (S.A.W.) drew them up in a
row in a place of prayer, and offered (janazah)
prayer and recited four takbiris for him. 12
Jabir ibn 'Abdullah reported Allah's Messenger as saying:
12 Al-Nisabilri, Kitcib Al-Jantl'iz, Bdb Al-Takbir al-Jancizah, Hadith No.2078. 17
There died today the pious servant of Allah,
Ashama. So he stood up and led us in (funeral
prayer) over him.'
The above two prophetic traditions shows that Ashama, the king of Abyssinia that time, who was a Christian believed in the message of Tauhid (Monotheism) that was revealed on Prophet
Muhammad (S.A.W.). Otherwise the Prophet would have not performed the funeral prayer for him.
In another verse Allah (S.W.T.) has praised the Ahl al-Kitab in the following words:
And there are, certainly, among the People of
the Book, those who believe in Allah, in the
revelation to you, and in the revelation to
them, bowing in humanity to Allah: they will not
sell the Signs of Allah for a miserable gain!
13 Al-Nisabilii, Al-Imcim Muslim , Al-Sahih, 'Cita Al-land'iz, Bab Al-Takbir al-Jandzah, Hadith No.2081 18
for them is reward with their Lord, and Allah is
swift is account. 14
In the above verse the great qualities of Ahl al-Kitab have
been mentioned suggesting that they are the closest to Muslims.
The praise of Ahl al-Kitab continues in the following verse of
the Qur'an:
Those who believe (in the Qur'an). And those who
follow the Jewish (scriptures), and the
Christians and the Sabians, any who believe in
Allah and the Last Day, and work righteousness,
shall have their reward with their Lord on them
shall be no fear, nor shall they grieve. 15
So Paradise is the reward for those Ahl al-Kitab who believe in
what is revealed in all the revealed books of Allah including
Qur'an. But unfortunately most of Ahl al-Kitab were disobedient
to Allah-rebellious to Allah's command.
Rebellion is part of human nature if it is not properly tutored
through spiritual message. Just as there can be disobedient
14 Qur'an 3:199 15 Qur'an 2:62 19 among the followers of Islam, there have been disobedient people among the Ahl al-Kitab. The Qur'an says:
If only the People of the Book had faith, it
were best for them: among them are some who have
faith, but most of them are perverted
transgressors."
Those who did not believe in Allah were criticised for that bad character. 17 Their disbelieve in the monotheistic teachings of their book is also criticised in the following verse:
Say: `10 People of the Book! Why reject ye the
signs of Allah, when Allah is Himself witness
to all ye do?""
He has also reprimanded all men of weak faith, for they did not only stop at rejecting the Signs of Allah, but they went on further to mix up the truth with falsehood in order to mislead other people.'9
16 Qur'an 3:110 " Qur'an 3:70 18 Qur'an 3:98 19 Qur'an 3:71 20
Whenever Ahl al-Kitab including Muslims are invited to the Book
of Allah to settle their disputes, some of them turn away and
resist. This is also one of the bad behaviours which is
disliked by Allah. 20
Another bad character of the people of faith particularly some
members of Ahl al-Kitab was making mockery of the message of
Allah. The Qur'an says:
A section of the People of the Book say:
"Believe in the morning what is revealed to the
believers, but reject it at the end of the day: „21 perchance they may (themselves) turn back.
Muslims have been asked to show respect to Ahl al-Kitab because
they share common heritage with Muslims through 'Anbiya' Allah
(Prophets of Allah) like: NO, Wad, salib, Ibrahim, Yasuf,
Shu'ayb, Dawad, Sulyman, Yanus, Zakariyya, Yahya, Idris
20 Qur'an 3:23 'Qur'an 3: 72 21
etc. It is for this reason that they have been asked to have a
healthy dialogue with Ahl al-Kitab. The Qur'an advises:
And dispute ye not with the People of the Book,
except in the best way, unless it be with those
of them who do wrong. But say, "We believe in
the revelation which has come down to us and in
that which came down to you; our God and your
God is one; and it is to Him we submit (in
Islam) . „22
In this verse Allah (SWT) is teaching Muslims how to call Ahl
al-Kitab to the religion of Filrah (i.e.religion common to all
Prophets of Allah). If at all there is any occassion which
leads to a quarrel between Ahl al-Kiab and Muslims, Muslims
have been advised that those who fight have to be treated the
same way they treat you and no more force should be used in
comparison to what has been used against you. Allah continues
to say that do not forget to tell Ahl al-Kitab in your
argument with them that you believe in what Allah has revealed
to you (Tawrah and InjIl) and what he has revealed to us
'Qur'an 29:46 22
(Qur'an). Your lord and our Lord is one and we obey Him in all what He commands us. 23
Another aspect of Ahi al-Kitab in the Qur'an is the following incident which is recorded in the case of Banti Quraizah, a
Jewish tribe which lived in Madinah at the time of the Prophet
(S.A.W.). This incident throws an ample light on how Ahl al-
Kitab should be treated in case of dispute and at the same time the code of conduct that Ahi al-Kitab should follow if there arises any dispute with them. Although this incident took place at the time of the Prophet (S.A.W.), it has a long term implication on the behaviour patern of the Muslims with the
People of the Book.
Allah (SWT) says:
And those of the People of the Book who aided
them-Allfih did not take them down from their
strongholds and cast terror into their hearts,
(so that) some ye slew, and some ye made
captives . 24
23 Al-Sabilni, Safwat Dar al-Qalam, Fifth Edition, Beirut, Lebanon, Vol.11 p. 463-464 24 Qur'an 33:26 23
In this verse Allah (SWT) is telling us about the llama Quraizah who were on peace treaty with the Prophet Muhammad (SAW). Later
they broke the agreement and supported the Qurashite Mushriktin
idea to fight Muslims. When the unbelievers lost the fight and went back to Makkah, the Prophet (S.A.W.) urged the companions
(RA) to go to the Ahl al-Kitab's place and block their roads so
that they should not go out of their area. The Prophet did so because of their betrayal and duplicity. 25
After a period, the Ban0 Quraizah had to leave Madinah as they kept on torturing the members of the Muslim 'Ummah and sided with the Qurashite Mushriktin to wipe out the newly formed community of Muslims. The Qur'an records the incident as follows:
It is Be Who got out the unbelievers among the
People of the Book from their homes at the first
gathering (of the forces). Little did ye think
that they would get out: and they thought that
their fortresses would defend them from Allfih!
25 Mukhtasar 1bn Kathir, Vol.IFI p.90 24
But the (Wrath of) Allah came to them from
quarters from which they little expected (it),
and cast terror into their hearts, so that they
destroyed their dwellings by their own hands and
the hands of the Believers. 26
Allah (SWT) says in another aspect of Ahl al-Kitab:
0! people of the Scripture (Jews and
Christians)! Why do you dispute about Ibrahim,
while the Taurfih and the Injil were not revealed
till after him (that is after his death)? Have
you then no understanding. 27
In this verse the Qur'an puts facts straight by explaining that the followers of Taurah and Injil were not correct in saying, as they did, that Prophet Ibrahim was a Jew or a Christian respectively. Allah says that Prophet Ibrahim was neither a Jew nor a Christian but was one who submitted himself to the commandments of Allah and never associated Him with other
26Q4eka591
27 Qur'an 2:65 25 things. Allah has called him Hanff, an upright person who was a monotheist, and who worshipped none but Allah alone. 28
2.3 AIM AL-KITAB ACCORDING TO THE OPINIONS OF THE
JURISTS
Jurists hve differed in defining who Ahl al 7Kitab are. Below are the opinions of the four schools of Islamic Jurisprudence:
2.3.1 Hanafi school Opinion
Al-Imam Kamal al-din who is known by the name of Ibn Al-Humam al-Hanafi says that Ahl al-Kitab are the Jews and those who follow their religion like Frenjites and Aramites. 29
Al-'Aini also says that any person who believes in any Prophet of Allah and admits his book is called a "Kitabi". by saying these words, he means Jews and Christians and those who believed in Zaber book of Prophet Daud and Scriptures of
Prophets Ibrahim and Shith (peace be upon them all). 20
28 Ibn 1-Ianbali, Ab mad, Musnad, Hadith No.3800
29 Ibn Al-Hum:am, Al-Fath al-Qadir, Dar al-Filo-, Beirut, Lebanon, Vol.IV p.370.
30 Al-Binciyat Shari] al-Hiday ah, Vol.IV p.75-76 26
2.3.2 Malik School Opinion
Ahl al-Kitab are the followers of Tawrah and Injil. To them the followers of Tawrah are the Jews and the Samaritans and the followers of Injil are the Christians and those who agree with them in their source of their religion like the Aramites, the Frenjites etc. If they differ in the source of their religion they are not called Ahl al-Kitab.
2.3.3 Opinion of Shafi'is imam Al-Shafi'i says that Ahl al-Kitab whom Muslims are permitted to marry are Jews and Christians and not Magians. He states that Polytheists are divided into three groups.
Those who have got books. And these are the Jews and
Christians.
Those who have got Shubhat Kitab (Semi-book). And these
are Magians.
Those who do not have a revealed book from Allah (SWT) or
Shubhat Kitab. These are worshipers of Idols like stone,
animals, sun, moon, fire, rivers, trees and the like.
and also see Ibn Al-Humam, Al-Fath al-Qadir, Vol.III p.229
31 Al-Kandahiawi, Maulana Muhammad Zakariyyfi, Awjaz Vol.IX p.386-387 27
So in the opinion of Imam Al-Shafi'i Ahl al-Kitab are the Jews
and Christians. The Magians, Sabians and Samirites are
excluded from this group. 32
2.3.4 Uanbali School Opinion
Ahl al-Kitab in the opinion of Hambalis are the Jews and
Christians and those who follow their religion. Ibn Qudamah
says:- "Ahl al-Kitab" are Jews and Christians and those who
embrace and follow their Religion like Samiruns who profess
faith in the book of Taurah and work according to the laws of
prophet Mesa (PBUH). They only differ in some branches of their
Religion. Other groups of Christians are the Jacobians,
Nastarians, Malikians and the like who adhere to the laws of
• Injil. All are called (Ahl al-kitab) People of the book. Other
than them are excluded in this group of Ahl al-Kitab". 33
Ibn Qudamah has supported his view with the following verse:
32 Al-Nawawi, Sharh Al-Muhadhdhab, Vol.IX p.233-236 33 Ibn Qudamah, Al-Mughni, Dar al-Fikr, Beirut, Lebanon, Firk Edition 1985, Vol. 10:568. 28
Lest you should say: The book was sent down to two
peoples before us. And for our part we remained
unacquainted with all that they learned by
assidious study""
So the meaning of `two peoples' in this verse is Jews and
Christians. 35
Conclusion
After quoting and presenting the views of the four schools of
Islamic Jurisprudence, we can say that Ahl al- Kitab (People of the book) are those whose tradition is based upon divinely
.revealed Scripture. Although they have interpolated certain views, they still possess a religion of divine origin. Majority of the Jurists say that these Ahl al-Kitab are Jews and
Christians. However, the Jurists have differed if the Sabians and the Magians are included in this group of Ahl al-Kitab. It is reported that Imam Ahmad ibn Hanbal said that the Sabians followed Christian beliefs and it is also reported by him that they also followed some Jewish beliefs. It is narrated that
34 Qur'an 4:56
35 Al-Suyati, Al-Dur al-Manthtir fi al-Tafsir bi al-Ma'thfir, First Edition 1983, Dar al- Fikr, Beirut, Lebanon, Vol.III p.388. 29
lUmar ibn Al-Khatlab (RA) said that the Sabians are the followers of Judaism. Al-Suddi and Al-Rabi' say that they are
Ahl al-Kitab. Mujahid, an eminent theologian, considers them as a sect between the Jews and Christians. 36Imam Abe Hanifah considers the Sabians to be Ahl al-Kitab. 37
In this respect we can say that Sabians could be Ahl al-Kitab if they did follow the beliefs of the Jews and Christians and as such they would be considered as either Christians or Jews.
They would no longer be Sabians if they happened to believe in what the Christians and Jews did in earlier times. But if they worshipped Angels or any other heavenly bodies, then they were polytheists.
There are some scholars like Sheikh Muhammad Rashid Rida,
Mujaddid Alif Thani etc..., who say that the Magians, Sabians,
Budhists, Hindus and the followers of Confucius or Shinto from
China and Japan respectively, are also.Ah/ al-Kitab. In their opinion they say that all these people believe in one of the
Prophets. They also have faith in the revelation, the day of
36 Ibn Qudamah, Al-Mughni, Vol.10 p.568-569. 37 Hamilton, Charles, Al-Hidciyah, Premier Book House, Shaheen Market, Anarkali, Lahore, Pakistan, p.30. 30 judgement, that every one will be accounted on his deeds,
Punishment, Paradise and Hell. So these type of people are like
Ahl al-Kitab (Jews and Christians) though some of them are not mentioned in the Qur'an. They continue to say that the Qur'an did not mention them because it was confined to mention Jews,
Christians, Sabi'is and Magians who were known to Arabs whom the Holy Qur'an was speaking to. So, in his opinion the Hindus,
Budhists and the followers of Confucius or Shinto from China and Japan are people of one of the religions who have got shubhat kitab (the book resembling the heavenly book), and as such they are like the Jews and Christians who are mentioned in verse five of SOrah Ma'idah. 38
`Ulama' have replied on what Sheikh Muhammd Rashid Rida and other scholars have said about the Sabians, Magians, Budhists,
Hindus and followers of Confucius or Shinto from China and
Japan saying that it is not true that the Holy Qur'an was confined to mentioned people who were known to Arabs. The
Qur'an has actually mention many stories of the people of the past whom the Arabs did not know. It also mentioned about many
Prophets and Messengers who were sent to other nations which
Arabs did not expect to know about beside their stories. So, if u - Riga, Muhammad Rashid, Tafsir Al-Mandr,, Vol.VI p.185 31 the Qur'an did not mention these people as Ahl al-Kitab, it is not because the Arabs did not have knowledge about them since it was possible for Allah (SWT) to inform them as he did by telling them about other nations which they did not know. These people are not Ahl al-Kitab and if they were people of the divine books, Allah would have explained that in the Holy
Qur'an inspite of the ignorance of the Arabs. So Ahl al-Kitab
(People of the Book) are those who believe in the Prophets of
Allah (Peace be upon them) who was sent to mankind and do possess a divine book. This information as to who Ahl al-Kitab are should be derived from the Qur'an and Sunnah. 39
Therefore People of the Book whom I am going to discuss in this thesis and those whom Muslims can marry are Jews and
Christians. They are the people who believe in Prophet Moses and Jesus (Peace be upon them) respectively. They do possess
Taurah and Injil respectively. These books are in existance though they have undergone great changes. We have been told about them in the Qur'an in the following verse in which Allah
(S.W.T.) says:
39 Shafi`, Maultina Mufti Muhammad, Ma`cirif Al-Qur'an, Idarat Al-Ma'arif 1411A.H. \ 1990, Karachi, Pakistan, Vol.III p.61. 32
Ye People of the Book why dispute ye about Abraham,
when the Taurfih and the Injil were not revealed 40 till after him? Have ye no understanding?
In this verse Allah (S.W.T.) has clarified who the People of the book are, by mentioning their books. These books are Injil the Gospel of Jesus Christ (Peace be upon him) and Taurah of
Prophet Musa (Peace be upon him) which were revealed to
Christians and Jews respectively. Allah has condemned the
People of the Book for their dispute about Prophet Ibrahim
(Peace be upon him) while Christianity and Jewish came after
Prophet Ibrahim (Peace be upon him). This verse, therefore, has really explained that People of the
Book are Jews and Christians. 41
Another verse of the Qur'an which states that People of the
Book are Jews and Christians is in Serah Al-Ani'am which says:
40 Qur'an 3:65
41 A1-Suyilti, `Abdu al-Rahman Jalal Al-Din (d.9111A.H.), AI-Dur Al-Manthar fi Al- Tafsir Al-Ma'thfir, Second Edition 1409 A.H\1988A.D., Dar Al-Fikr, Beirut, Lebanon, Vol.11 p.236-237. Al-Qurtubi, Abu `Abdulla Muhammad ibn Ah mad Al-Ansfiri, Al-Jami` li A hkam Al-Qur'an, Dar Ihya' Al-Turath Al-`Arabi, Beirut, Lebanon, Vol.IV p.107. 33
And this is a Book which We have revealed as a
blessing: so follow it and be righteous, that ye
may receive mercy. Lest ye should say: "The Book
was sent down to two peoples before us, and for our
part, we remained unacquainted with all that they 42 learned by assiduous study.
The two people mentioned in this verse are Jews and Christians.
So if Magians, Sabians, Hindus, Budhists, and the followers of
Confucius or Shinto from China and Japan were People of the
Book as Sheikh Muhammad Riga say, Allah would have said: Lest you should say the Book was sent down to three, four, five, six peoples etc. But Allah (S.W.T.) did not, for People of the Book are only two and thus Jews and Christians.
42 Qur'an 6:155-156 CHAPTER THREE:
Marriage with 111.--Kitabiyyah
in Islam
Marriage with Al-Ratabiyyah in the
Qur'an
Marriage with Al-KItabiyyah in the
Sunnah
Marriage with A1- Kitabiyyah in the
opinion of the Jurists
Marriage of a Muslim woman by the
People of the Book 35
3.1 Marriage with the people of the book in the
Qur' an
Marriage with the people of the book is permitted according to
the Qur'an as Allah (S.W.T.) says:-
This day are (all) things good and pure made lawful unto you. The food of the people of the book is lawful unto you and yours is lawful unto thee. (Lawful unto you in marriage) are (not only) chaste women who are believers, but chaste women among the people of the book, revealed before your time when you have given them their due dowers, desiring chastity (i.e. taking them in legal wedlock) not committing illegal sexual intercourse nor taking them as girl-friends. If any one rejects faith, fruitless is his work, and in the hereafter, he will be in the ranks of those who have lost (All spiritual good)". 1
This is the only verse in the holy Qur'an which permits Muslim men to marry women of the book (Christian and Jews). In this verse, Allah (S.W.T.) has allowed Muslim men to marry Christian
or Jewish women with the following conditions:
Qur'an 5:5 36
Firstly, they should be Mbhsanat (chaste women) who do not commit adultery. This is so because Islam commands sex purity for both men and women at all times. All illegal sex practices are shut out of the marriage circle of chaste men and women as
Allah (S.W.T.) says:
The alduterer can not have sexual relations with
any but an alduterer or an idolatress, and the
aldutress, none can have sexual relations with her
but an alduterer or an idolater; to the believers
such a thing is forbidden. 2
Therefore a believer should find out the character of a woman whenever he wants to marry her. If he discovers that the woman is one who is fond of committing illegal sexual intercourse with anyone, then she is an alduteress whom Islam has forbidden a believer to marry. Because the man or the woman who agrees to have a sexual relation with an alduterer/alduteress also becomes an alduterer/alduteress. This behaviour has been forbidden by Islam to the believers as the above verse states.
It happened at the time of the Prophet Muhammad (S.A.W.) when a
2 Qur'an 24:3 37
Man came to him to get permission to marry a woman called Umm
Mahzal. This woman used to commit aldutery and wanted to be married by this man on condition that she will be responsible
for all family expenses. The Prophet (S.A.W.) answered him by
reciting the above verse. 3 So here, the Prophet (S.A.W.) was
telling him that the woman was an adulteress and a Muslim man
is not allowed to marry an adulteress.
Secondly, should Muslim men marry women of the people of the
Book, they should pay dowry to them as it is an obligation for everyone who wants to marry. It is reported by Ibn Jarir that
Ibn Zaid said on this verse that Muslims should not marry these women except with something obligatory (meaning Dowry). He continued to say that it is unlawful for men to marry a woman after the time of the Prophet Muhammad (S.A.W.) unless he pays
Mahr (dowry). 4 In another tradition the Prophet (S.A.W.) said:
"One who marries a woman with an intention not to
pay her dowry then he will be counted as an
alduterer on the day of Judgement". 5
3 Ibn Hanbali, /mcim Ahmad, Al-Musnad, Hadith No.648, 7099, Vol.2:159.
4 Al-Suyiiti, Al-Imam `Abd Al-Rah man Jalal Al-Dur Al-Tafsir Al-Ma'thfir, First Edition 1403A.H/1983A.D., Dar Al-Fikr, Beirut, Lebanon, Vol.2:431. 5 Ibid 38
This shows the importance of dowry in marriage. 'A'ishah and
Umm Salamah (May Allah be pleased with them) said:
"There is nothing more important than a woman's
dowry and worker's wages." 6
Thirdly, Muslim men should be chaste and not be like those who
commit adultery, or those who take girls as friends with the
intention of - committing adultery with them.'
In this respect we can say as Yasuf 'Ali said in his commentary that Islam is not exclusive. Social intercourse, including
intermarriage, is permitted with the people of the book. A
Muslim man may marry a woman from their ranks on the same terms as he would marry a Muslim woman, i.e., he must give her an economic and moral status, and must not be actuated merely by motives of lust or physical desire. 8
6 Ibid
7 Al-Sabani, Safwat al-Tafcisir, Vol.1:328-329. Also see Al-Sabath, Mukhtasar Ibn Kathir, Vol. 1:486-487; Al-Jassas, A hkilm al-Qur'an, Vol.2:324-325. 8 Yfisuf 'Ali, Qur'an Commentary, footnote No. 700, p. 280-281. 39
A Muslim woman can not marry a non-Muslim, because her status
would be affected; the wife ordinarily takes the nationality
and status given by her husband's law. Any man or woman, of any
race or faith, may, on accepting Islam, freely marry any Muslim
woman or man, provided it be from motives of purity and
chastity and not of lewdness. Verily, there are Non-Muslims whom on accepting Islam freely married Muslim women. One of
those is a Christian man in Bangwe Township in the city of
Blantyre who was interested with the character of a Muslim woman and wanted to marry her. Knowing the Islamic rules on such marriage she could not allow him because of his religion.
He then told her that he was ready to embrace Islam. She accepted that and got married to him. 9
If they do not accept Islam, there is no way they can marry a
Muslim woman because such marriage is forbidden in Islam. This marriage is not recognised in Islam because a woman is obliged to follow husband's rules in the family. It is at this time when woman's status can be affected especially in the family of different faiths. And there are many cases in which status of women had been affected because of being married by a non-
Muslim. A young woman from Chief Mponda in Mwichande village
9 Interview with the woman herself in Bangwe Township in Blantyre 40 was married to a Christian. Her good status of being a good
Muslim lady was affected for she was never allowed by her husband to perform her Islamic duties. The husband kept on pressurising her till she thought of leaving her religion.
Indeed she kept herself away from her Islamic obligations and later embraced Christianity. This is how, in most cases, a
Muslim woman's status would be affected because of this type of marriage which is prohibited in Islam. 10 I will discuss this in depth under the sub-chapter (Marriage of a Muslim woman by the
People of the Book) on p.121 in this chapter.
10Interview with Ziyab Adam at Mpondas area in Mangochi District. 41
3.2 Marriage with the People of the Book according to the Sunnah and the sayings of the Sahabah (R.A.).
According to the sayings of the Prophet Muhammad (S.A.W.), marriage with Al-Kitabiyyah (woman of the People of the Book) is permitted. Jabir ibn 'Abdullah (R.A.) reported that the
Prophet (S.A.W.) said:
"We marry women of the People of the Book and they
(People of the Book) do not marry our women". II
In this tradition the Prophet Muhammad (S.A.W.) was refering to the words of Allah (S.W.T.) in verse 5 of serah Al-Ma'idah, that it is lawful for Muslim men to marry chaste women among the People of the Book. But it is unlawful for men among the
People of the Book to marry Muslim women.
Jabir ibn 'Abdullah was asked if it is allowed to marry women of the book. He answered by saying:
11 `Abdu Al-Ranman Jalfilu Al-Din, Al-Dur Al-Manthfir fi AI-Tafsir Al-Ma 'Thilr, Vol.3 p.25. 42
"We married them at the time of the conquest of
Makkah when it was rare to find a Muslim woman. But 12 when we came back to Madinah we divorced them".
He continued to say that women of the People of the Book are lawful to us (Muslims) and our women are unlawful to them. This
'Athar (precedent) has allowed a Muslim man to marry women of the People of the Book on the condition that Muslim women are scarcely found. This condition has been supported by another
'Athar reported by Al-Hasan Al-Basari when he was asked about marrying women of the People of the Book. He answered:
"What is wrong with a Muslim man to marry Al-
Kitabiyyah Allah (S.W.T.) has increased the number
of Muslim women. If he has no option but to marry
Al-Kitabiyyah, then he should choose a chaste woman
and not a fornicator. When asked who a fornicator
was, he said she is the one whom if a man gives her
a sign with his eye she follows him". 13
12 Ibid
13 `Abdu Al-Rahman Ja151 Al-Din, Al-Durr Al-Manthfir fi Al-Tafsir bi Al- Ma ?Mir, V ol.111 p.25 43
But this condition which has been mentioned by Jabir ibn
`Abdullah and Al-Hasan Al-Basri in their precedents is invalid since the verse which has lawfully allowed a Muslim man to marry women of the People of the Book did mention only three conditions which I have expressed in the previous sub-chapter.
So it is allowed with only those conditions mentioned in the verse. It can only be a condition on its own in an extraordinary situation like when the Muslim women are not in abundance.
3.3 Marriage with Ahl al-Kitab in the Opinions of
the Jurists
There is a difference of opinion about the validity of the marriage of a Muslim man with Al-kitabiyyah. The majority of the Jurists say that it is permissible for a Muslim man to marry Al-Kitabiyyah as Allah (S.W.T.) says in the Holy Qur'an:
This day are (all) things good and pure made lawful
unto you. The food of the People of the Book is
lawful unto you and yours is lawful unto them. 44
(Lawful unto you is marriage) are (not only) chaste
women who are believers, but chaste women among the
People of the Book, revealed before your time, when
you give them their due dowers, and desire
chastity, not lewdness. Taking them as lovers. If
anyone rejects faith, fruitless is his work, and in
the hereafter he will be in the ranks of those who
have lost (all spiritual good)."
The Hanafis say that it is unlawful to marry Al-Kitibiyyah, if she happens to be in an abode of war Mir Al-barb) because that can open up a door to mischief. In such conditions the children by that marriage will be more inclined towards the religion of the mother. 15
The Maliki school has two opinions. The first is that marriage with Al-Kitabiyyah is completely disapproved (Makreh) whether she is a Dhimmi or one belonging to the abode of war. The dislike for marriage with a woman of the latter category is
14 Qur'an 5:5 15 Hamilton, Charles, Al-Hiddyah, Premier Book House, Shaheen Market, Anarkali, Lahore, Pakistan, p.30. cf, Ibn Al-Humam Al-Hanafi, Al-Inuim Kamal al-Din Muhammad ibn `Abdu al-Wahid Al-Saywasi Al-Sukandariyy, Al-Fath al-Qadir, Dar Al-Fikr, Second Edition (n.d.), Beirut, Lebanon, vol.4:370. 45 greater. The second opinion is that there is no complete disapproval in marrying a Kitabiyyah because the Our'anic words have given a tacit approval. They show disapproval of such marriage in the abode of Islam because it is not forbidden for a Kitabiyyah woman to drink wine or eat pork or going to the church and this affects the religious belief and behaviour of her children. It is not essential for a Kitabiyyah that both of her parents should all be Ahl al-Kitab. Her marriage will be valid even if her father is a Kitabi and her mother is an idol- worshiper .16
The Shafi'is are of the opinion that Al-Kitabiyyah whom Islam has permitted a Muslim man to marry should not be a Harbiyyah17 or a Dhimmiyyah18 . According to the Shafi'is It is reprehensible for a Muslim man to marry a Harbiyyah or a
Dhimmiyyah. 19
16 Al-Kandahlavvi, Maulana Muhammad Zakariyyfi, Awjaz al-Mascilik, First Edition 1410A.H.\1989A.D., Dar Al-Fikr, Beirut, Lebanon,Vol.9:386-387. 17 A Kitabiyyah living in a Muslim state.
18 A Kitabiyyah living in an abode of war (Dar al-Ilarb).
19 Al-Nawawiyy, Abu Zakariyya Yah aya ibn Sharaf Mughni Al-Muhtcij ila Ma `rifat Ma'ani Alfa? Al-Minhaj, Matba'at Mustafa Al-Babi Al-Halabi, 1377A.H\1957A.D., Cairo, Egypt, Vol.3:187-189. c• Abu Ish fig Ibrahim ibn 'Ali ibnYilsuf Al-Fayraz Abadi (d.476A.H), AI-Muhadhdhab, Third Editionn 1396 A.H.\1976A.D., Matbeat Mustafa Al-Babi Al- alabi, Cairo, Egypt Vol. 2:44; Al-Nawawiyy, Abil Zakariyya Yahaya ibn Sharaf, Al- Majni' Sharp AI-Muhadhdhab, Dar Al-Fikr, Beirut, Lebanon, vol.9:233-236. 46
However, some Jurists are of the view that marriage to a harbiyyah is absolutely prohibited. And they say that it is for this reason that when 'Abdullah ibn 'Abbas (R.A.) was asked about marriage to a harbiyyah he answered that it was not permissible to marry her, and then recited the following verse:
Fight those who believe not in Allah nor the Last
Day, nor hold that forbidden which hath been
forbidden by Allah and His Messenger, nor
acknowledge the Religion of Truth, from among the
People of the Book, until they pay the Jizyah with
willing submission, and feel themselves subdued. 2°
Moreover in s' Cirah Al -Muj adalah, Allah (S . A . W. ) says :
Thou wilt not find any people who believe in Allah
and the Last Day, loving those who oppose Allah and
His Messenger, even though they were their fathers
or their sons, or their brothers, or their
kindred. 21
20 Qur'an 9:29 21 Qur'an 58:22 47
That means it is a condition of having a true Iman (faith) to
hate those who are active in hostility against Allah's message
or the teachings of His Apostle. Since that is the case,
marriage to the woman of such people can not be lawful.
Hanbalis are also of the opinion that marriage with Al-
Kitabiyyah is permitted on a condition that her father and
mother must be Ahl al-Kitab. If her father is a Kitabi and her
mother is an idol-worshiper the marriage is unlawful even
though she has reached the age of puberty and has accepted the
religion of her father. 22
In conclusion, there is a consensus of opinion of the 'Ulama'
of the Ahl al-Sunnah wal-Jama'ah that marriage with Al-
Kitabiyyah is permitted as was the practice of the companions
of the Prophet (Sahabah) like 'Uthman, Talbah, Ibn 'Abbas,
Hudhaifah, Sa'd ibn Abi Waqqas and their followers (Tabi`On)
22 Al-Juzairi, `Abdu A1-Rabman, Al-Fiqh `ala al-Madhcihib al-Arba`ah, Hakilcat Kitabevi 1986, Istanbuli, Turkey, vol.4:76. cf; Ibn Qudarnah, Muwaffaq Abil Muhammad 'Abdulfah ibn Ali mad, Al-Mughni .fi Fiqh Al-Imdm A hmad ibn ljanbal Al-Shaybeini, First Edition1405A.H\1985A.D, Dar Al-Fikr, Beirut, Lebanon, vol.7:99-100. 48 like Sa'id ibn Al-Musayyib, Sa'id ibn Jubair, Al-Hasan Al-
Mujahid, Taus , 'Ikrimah e.tc. 23
Though this is the view of the majority of the Jurists, the
Imamate Shi'ah (Al-Shilah Al-'Imamiyyah) do not permit marriage with women of the Book. Their opinion is based on the following verses:
Do not marry unbelieving women until they believe:
a slave woman who believes is better than an
unbelieving woman. Even though she allure you. Nor
marry (your girls) to unbelievers until they
believe: a man slave who believes is better than an
unbeliever even though he allure you. Unbelievers
do (but) beckon you to the fire. But Allfih beckons
by his Grace to the garden (of bliss) and
forgiveness. And makes His Signs clear to mankind:
that they may receive admonition. 24
In another verse Allah (S.W.T.) says:
23 Al-Sabin* Muhammad ibn 'Ali, Raw a 'u Al-Bayin fr. Tafsir Ayer' t Al-A hicam, First Edition 1407A.H\1987A.C., Maktabat Al-Gahzfili, Damascus, Syria Vol.1:536-537 24 Qur'an 2:221 49
0 ye who believe! when there come to you believing
women refugees, examine (and test) them: Allah
knows best as to their faith: if you ascertain that
they are believers, then send them not back to the
unbelievers. They are not lawful (wives) for the
unbelievers, nor are the (unbelievers lawful
(husbands) for them. But pay the unbelievers what
they have spent (on their dower). And there will be
no blame on you if ye marry them on payment of
their dower to them. But hold not to the ties
(marriage contract) of unbelieving women: ask for
what they have spent (on the dowers of women who
come over to you). Such is the command of Allah: Be
judges (with justice) between you. And Allah is
full of Knowledge and Wisdom. 25
In the first verse Allah (S.W.T.) has prohibited marriage with polytheists. The Imamate Shiites regard Christians as polytheists for they say that Jesus is their God while there is none worth of worship except one Allah and Jesus was only a
Prophet (PBUH). In the second verse, Allah is commanding the
25 Qur'an 60:10 50 believers not to hold disbelieving women as wives. When this was revealed, `Umar ibn Al-Khattab (May Allah be pleased with him) divorced his two wives, daughter of Abi 'Umayyah ibn Al-
Mughirah from Banff Makhzum tribe and the daughter of Jarwal from Khuza'ah tribe. It is also reported by Ibn Abi Hatim that
Talhah (R.A) said:- when this verse revealed, I divorced my wife Arwa daughter of Rabi'ah and 'Umar ibn Al-Khattab divorced his wives Quraibah daughter of Abu 'Umayyah and 'Ummu Kulthum daughter of Jarwal.'
`Abdullah ibn 'Umar is of the same opinion that one should not marry a Jewish or Christian woman. Whenever he was asked about marriage with Al-Kitabiyyah, he used to say:
"Allah has forbidden a Muslim to marry the
polytheists, and I do not understand anything other
than a greater polytheism when a woman says that
her Lord is qsa (PBUH), who is a servant from the
26 AI-Suyati, Al-Imcim `Abdu al-Rahman Jalfil al-Din, Al-Dur Al-Manthzir fi Al-Tafsir Al-Ma'thur, First Edition 1403A.11\1983A.D., Dar Al-Filo-, Beirut, Lebanon, vol.8:132-134. 51
servants of Allah." 27
Majority of the Jurists have answered this opinion by saying that there is a difference between Ahl al-Kitab and
Polytheists. When Allah (S.W.T) spoke about unbelievers in the holy Qur'an, He mentioned Ahl al-Kitab immediately after the
Polytheists. So mentioning Ahl al-Kitab exclusively means that there is a difference between the two. As a result their law on marriage have differed from that of Polytheists. A Muslim is allowed to marry Al-Kitabiyyah but not Al-Mushrikah (Polytheist woman). Allah (S.W.T.) says:
Those who disbelieve among the People of the Book
and among the Polytheists were not going to depart
(from their ways) until there should come to them
clear evidence. 28
In another verse Allah (S.W.T.) says:
27 Al-Qurtulii, Abu `Abdullah Muhammad ibn Ahmad AVAnsari, li A hkam
Al-Qur'an, Dar Ihya' Al-Turath A1-`Arabi, Beirut, Lebanon, vol.3:67-68.
28 Qur'an 98:1 52
Ye shall certainly be tried and tested in your
possessions and in yourselves: and ye shall
certainly hear much that will grieve you, from
those who received the Book before you and from
those who worship partners besides Allah. But if
you persevere patiently, and guard against evil,
then that indeed is a matter of great Resolution. 29
He (Allah) also says in serah Al-Baciarah:
It is never the wish of those without faith among
the People of the Book nor the Polytheists that
anything good should come down to you from your
Lord. But Allah will choose for his special Mercy
whom He will, for Allah is Lord of grace
abounding. 30
So in these three verses Allah (S.W.T.) has mentioned Ahl al-
Kitab separately from Polytheists and Unbelievers. This shows that there is really a difference between them. That is why it is allowed in Islam for a Muslim man to marry a woman from the
People of the Book. But it is prohibited for him to marry a
29 Qur'an 3:186 3° Qur'an 2:105 53
Polytheist. If it happens that a Muslim marries Al-Kitabiyyah and then she converts to another religion other than
Christianity and Judaism, she will be forced to embrace Islam.
If she refuses, divorcing her will be the solution because at this juncture she will be either an unbeliever or a Polytheist whom Allah (S.W.T.) has forbidden a Muslim to marry?'
Though marriage with the People of the Book is permitted in
Islam, there are many problems which arise whenever this type of marriage has been contracted. Some of these problems which
Muslims face are:
1. His children understand. either Christianity or Judaism
faster than they could do to Islam as they are most of the
times with the mother. Below is some of many cases on this
subject.
a) A Muslim man in Likuni Township in Lilongwe married a
Christian. The man remained a Muslim husband and
practised his Islamic obligations in a normal way as
he used to do before their marriage. The same applied
to the woman as she observed her religious duties
31 Ibn Qudamah, Muwaffaq Al-Din ANTI Muhammad 'Abdullab ibn Ahmad, AI-Mughni fi Fiqh Al-Imam Ahmad Ibn Hanbali, vol.7:101- 102. 54
without any problem. As time went own they had
children. The wife used to teach her children what
Christianity is till they became Christians, a thing
the husband did not like to happen in his family. So
because the children were staying with the mother in
most of their time, they understood Christianity
faster than their father's religion. It caused
differences between the husband and the wife. They
could not stay together in harmony and peace and
later their marriage bond broke. 32
b) A Muslim man from Mchinji district in the Central
region of Malawi married a Christian lady. It was not
known whether his children were Muslims or Christians
for sometimes they followed the religion of their
mother when their father is away of home and
sometimes they followed the father's religion
whenever he is at home after a long absence from his
place. When he came to know about it he was so angry
that their family relationship became sour. The
husband later divorced the wife. 33
32 Interview with Muh ammad Tambula, an Executive Officer at Lilongwe Islamic Movement, Lilongwe, Malawi on 12 th July, 1996 33 Interview with Abbadi at Namitete area in Mchinji District on 22" dAugust, 1996 55
c) A Muslim man from Mzimba district in the Northern
region of Malawi married a Christian. She used to
perform her religious duties without any problem from
the husband as they had agreed during their marriage
contract that everyone would remain in his/her
religion. They also agreed that no one shall meddle
and interfere in one's religion affairs. They stayed
happily till Allah (S.W.T.) gave them children.
Through the influence of the mother the children
followed their mother's religion. After fifteen years
of their marriage one of their children who was seven
years of age passed away. The wife wanted the funeral
ceremony to take place in a Christian way and her
friends told the ministers from her church. The same
applied to the husband and their were conflicts
between the Christian and Muslim religious leaders.
Later they agreed that the funeral should take place
according to Christian rules. After that incidence
many problems had risen in the family. They could not
live in harmony and peace anymore. After a year they
separated. 34
34 Interview with Ibrahim Rajab, Mzuzu, Malawi on 18 July, 1996 56
2. The man finds difficulties when he needs to take a second
wife as the wife always regards it as illegitimate and
fights arise time and again. Below are some of the cases:-
a) A Muslim man from Salima district married a
Christian lady. They lived together happily for a
period of seven to eight years. The husband later
wanted to have a second wife for his financial
status was good and was confident that he could
treat two women equally. He proposed a woman and
when he told his wife about it, she was not happy.
She felt embarrassed and failed to perform her
normal duties in her house. He tried to talk with
her and explain Islamic position on polygamy but
she could not listen. She told him that she will
not be able to stay under such circumstances which
will always disturb her minds. They failed to
understand each other and the husband continued
with his wish to have a second wife as his right
for Islamic Law recognises that marriage. There 57
was no peace in their house and later their
marriage bond broke. 35
b) A Muslim man in Mangochi District married a
Christian lady. After few years, the husband told
his wife that he wanted to have a second wife for
she was barren and he wanted to have children.
Though this was an apparent reason to practice
polygamy the wife did not understand this. There
were quarrels in their house till they fought one
day. Their marriage did not last long and ended a
year later. 36
Friends and relatives abstain to take food from ones home as
they think the food is unclean Islamically a thing which the
man will not feel comfortable with. Some of such incidents
are as follows:
a) A Muslim man from Nkhata-Bay district married a
Christian lady. The wife used to cook pork in the
house though her husband could not take it. She
was doing this for her religion does allow her to
35 Interview with Hassan Sfileh, Salima , Malawi on 23"1July,1996 36 Interview with J. Maulidi, Mangochi, Malawi on 4thJanuary,I997 58
eat this type of flesh which Islam does not. She
was even using the same pots which she uses to
cook other food for the whole family. When he came
to know about it, he told her not to do so and use
separate pots whenever she wanted to cook pork.
But as a woman she would find difficulties in
doing so and instead she continued to do what she
was used to. As a man who had closest friends, he
elucidated this situation to one of his best
friends. This friend found it difficult to have
food or drinks in his friend's house. The owner
felt always embarrassed whenever his friends
refused to have food in his house. He started to
quarrel with his wife whom he failed to convince.
But fortunately after few years she was able to
comply with the rules of her husband to separate
items which she used for her own food from that of
the whole family. At this moment they can
understand each other and they are living in
harmony and peace?'
37 Interview with the man himself in Nkhata-Bay on 19 thJuly, 1996 59
b) While in Lilongwe one day, I came across a
fight between a man and a woman. After inquiring
whom these people were, I was told that they were
a husband and wife. They were fighting because the
wife had given the relatives of her husband the
flesh of a pig. He failed to understand why his
wife did so while she knew that these people were
Muslims who do not eat pork. His relatives agreed
not to have again food in his house. He could not
feel at ease with the situations whereby his
relatives always refused to have food in his
house. 38
3. There will always arise conflicts when it comes to
inheritance if the husband dies as the wife shall not accept
Muslim principles of inheritance. There are many conflicts
which I came across through my interviews with people who
got married to Christian women. Some of these conflicts are:
a) A closest friend of my brother, Ibrahim, passed
away in Zomba district. He was married to a
Christian lady and had three children with her.
Fortunately, there were no any difference on
38 Interview with one of the spectators of the incident. 60
funeral proceedings for the couples agreed on
their marriage contract that any one of them will
follow his/her own religion. After few days from
the day funeral ceremony took place, relatives of
the deceased and his wife sat down to discuss
about the estate of the deceased person. The
father of the deceased wanted to distribute the
wealth according to his understandings of /s/Am.
The wife then told them that she can not agree
4. with Islamic rules on the matter and preferred to
refer the matter to court the thing which the
relatives did not like. The wife had control over
the property of her deceased husband and the
relatives failed to do whatever they wanted to.
They pressurised her till she felt uncomfortable
with the issue. Her relatives started to quarrel
with the relatives of her husband. Some of the
deceased husband's relatives insulted her for not
giving them access to the estate of their
relative. Conflicts kept on going between the two
parties till the matter was referred to the High
court. It was settled down there through the Laws
of the country. Relatives of the deceased were not 61
happy though they could not do anything after the
case has been referred to the High court. 39
b) A Muslim man from Mpondas area in Mangochi
District married a Christian lady. They lived
happily in their family. When the man passed away
his whole estate was inherited by his relatives.
The woman who had four children suffered alot and
till this moment I am writing this case in this
thesis, she is still visiting the Resident
Magistrate of Mangochi District to settle her
issue in a good way. She wants to get some of her
husband's estate to support her children who are
suffering form the day their father closed his
eyes. 40
4. Some Christian women have no respect to the sacred book of
her husband since some of them have no such respect to the
Bible. This can cause problems in the family and there are
39 Interview with my brother who was the closest friend of the deceased man 22" dJanuary, 1997. 40 Interview with the woman who is the wife of the deceased at Ulongwe Township in Machinga District on 2"dJanuary,1997 62 families which went under such circumstances as mentioned below:
a) Kassim Shaibu of Machinga district married a
Christian woman. They agreed on their marriage
contract that everyone will remain in his/her
religion. It happened that one day a friend of the
husband came in his absence and left the Holy book
`Qur'an' with the wife to be given to her husband.
She just kept it on the floor. When the husband
arrived from work he just saw a book on the floor
which he thought was a normal book. He picked it
up and when he opened it, he discovered that it
was a Holy book `Qur'an'. She asked the wife why
she just kept the Holy book on the floor. She
answered that there was not any problem for that.
When the husband tried to explain to her how a
Holy book has to be kept, her reaction to it was
not that impressive. She said that she would not
mind keeping the Qur'an in the way she did in
future. For the Muslim husband who respected well
the Holy book, was not happy with her wife's 63
reaction on the issue. They started then
exchanging bad words between them. 41
b) A Muslim man from .Ntcheu District married a
Christian lady. None of them embraced the religion
of the other inspite of the eagerness of both to
convert the other. One day the husband was reading
the Holy Qur'an. The wife wanted her husband to go
to the market to bring some of the house
necessities. He did not want to go before he could
finish one of the Chapters he was reading. She
came to the reading room for the second time to
ask the husband to go to the Market as soon as
possible. He told her that he will go after
finishing reading the chapter. When she came for
third time she just snatched the Holy Qur'an from
his hand and threw it on the floor. Some of the
papers of the Holy Qur'an were teared up. He was
so furious with what the wife did and slapped her.
41 Interview with the Muslim man himself in Machinga District in Malawi on 28 th December, 1996. 64
5. They are always conflicts over funeral proceedings when a
family member dies. To mention the few, see below some of
the incidents which happen on funeral proceedings of couples
of different faiths:
a) A Muslim man from Kasungu district married a
Christian. He was not practising his religion as
supposed to be. He kept on being a lazy man on his
religious obligations till he completely never
observed any of his Islamic duties which were
incumbent upon him. His wife took advantage of
this and started to preach him about her religion.
He later embraced Christianity. After five years,
the man passed away and their was a great conflict
between his parents and the Christian ministers
who wanted a Christianity ceremony to take place
on his funeral. Br. Tambula told me that the two
parties nearly fought. Luck enough there were
people who tried to convince the two parties to
agree what to do peacefully. But still the funeral
ceremony took place as a Christian one, a thing
which the parents of the deceased did not like it
and some of them left before the end of it. 42
42 ibid 65
b) The sister's son of my friend from Mpondas area
in Mangochi district passed away three years ago.
This woman was a Muslim before she embraced
Christianity through her Christian husband. Her
parents who were Muslims could not allow Christian
'regulations to take place on the funeral
proceedings of her son. The husband's parents also
did not want Muslims to take control of the funeral
proceedings of their grandson whom they believed to
be a Christian. It took them days to agree on what
to do. They even kept the body in a Mortuary so
that they should settle first their dispute. After
few days they agreed not to bury the body according
to any religious rules. This caused problems in the
family of the deceased for they could not live
happily any more. The wife accused the husband of
what happened and said it was a shameful thing
which she did not like to happen.'"
These problems are not only in Malawi but even in any multi- religious society. Below are some of the cases:
43 Interview. with Bwanali Jail at Monkey-Bay Township in Mangochi District on 4 thJanuary, 1997 66
I. A coloured Muslim married a Christian lady in
Lenasia. They had a happy marriage and did not
face problems at the beginning of their new
family. After few years Allah gave them children
and they grew up nicely. Problems started
venturing into their family when the wife wanted
the children to be Muslims and the father wanted
them to be Christians. One of their children was
confused and did not know what to do. His friends
used to mock at him for he was not stable with one
religion. He used to go the Mosque and sometimes
to the church. This, confused his mind especially
when his father and mother all tried to convince
him to follow their different faiths. He did not
know whom to follow between the mother and the
father. Unfortunately, he committed suicide, with
his wrong thinking that it was the only solution
to get out of the problem."
II.A Muslim man from Chitungwiza Township in the City
of Harare married a Christian lady. After five
years of their marriage the lady became a Muslim
44 Interview with Andries in Johannesburg in October, 1996. 67
through the teachings of the husband. Their family
which was a Christian-Muslim became a Muslim
family. All members of the family were Muslims.
When the father passed away the wife returned to
his old religion and tried to convince the
children to do the same. This did not please the
relatives of the deceased father who were Muslims
and were supporting the children financially. Till
this day I am compiling this case there are
quarrels time and again between the wife and
relatives of the deceased man. 45
III.A Muslim man from Chawama Township in the city of
Lusaka in Zambia married a Christian lady. She
used to perform her religious duties without any
problem from the husband as they had agreed during
their marriage contract that everyone would remain
in his/her religion. They also agreed that no one
shall interfere in one's religious affairs. They
stayed happily till Allah (S.W.T.) gave them
children. Through the influence of the mother the
children followed their mother's religion. At a
45 Interview with Naino Kapalamula in Harare on 28 thAugust, 1996 68
certain stage one of their children who was four
years of age passed away. The wife wanted the
funeral ceremony to take place in a Christian way
and her friends told the ministers from her
church. The same applied to the husband and their
were conflicts between the Christian and Muslim
religious leaders. Later they agreed that the
funeral should take place according to Christian
rules. After that incident many problems had risen
in the family. They could not live in harmony and
peace anymore. After a year they separated."
3.3.1 Marriage with People of the Book other than
Jews and Christians
After clarifying the Islamic Law of Marriage with the People of the Book, it will be worth explaining the Islamic position on the marriages with women of other religious groups other than Christianity and Judaism:
3.3.2. Marriage with Serbians
46 Interview with Bro. Adam Macheso, on 28 th June, 1996 in Durban. 69
Muslim Jurists have differed in clarifying who the Sabi'Is are.
But the preponderance view is that they are Ahl al-Kitab if they happen to have faith in the same way the People of the
Book do.
According to the Hanafis and the Hanbalis, a Muslim may marry a woman of the Sabi'Is if she believes in the Scriptures and professes faith in the Prophets. But if she worships the stars, sun or moon and believe not in any of the divine scriptural revelations, it is unlawful to marry her such being idolaters. 4 'Abdu7 al-Rahman ibn Zaid said that Sabi'Is lived in the Island of Mosul and used to say La ilaha illa Allah
(there is no deity worthy of worship but Allah), but did not practice it, and had no book or prophet. This is the reason why the polytheists of Makkah used to say to the companions of the prophet, "These Sabi'Is resemble them (companions) in saying La ilaha illa Allah"."
47 Hamilton, Charles, Al -Hiclayah, Premier Book House, Shaheen Market, Anarkal, Lahore, Pakistan, p.30.
48 Doi, 'Abdu al-Rahman I., Shari The Islamic Law, p.136-137.
see also Al-Sabiq, Al-Sayyid, Fiqh Al -Sunmah, Maktabat Dar Al-Rayyan, Kuwait, vol.6:213-214. 70
In the Holy Qur'an Allah (S.W.T.) has put them in the same category of the Jews and Christians. Allah says:
Those who believe (in the Qur'fin). And those who
follow the Jewish (scriptures), and the Christians
and the Sabians, any who believe in Allah and the
last day, and work righteousness, shall have their
reward with their Lord on them shall be no fear, nor
shall they grieve. 49
In this respect, we can say that the Sabeans are also Ahl-Al-
Kitab. Furthermore, in the interpretation of this verse, Ibn
Kathir says that the Sabi'is used to pray in the direction other than the Qiblah, and they used to read Zabar and worshiped Angels. They knew Allah and had their own SharI'ah and lived in the vicinity of Iraq. It is also said that they believed in some prophets and performed Siyam (fasting) for 30 days in a year and even prayed five times a day. 5°
lAllamah Yasuf 'Ali, quoting Encyclopaedia Britannica, considers them as people who played an important part in the
49 Qur'an 2:62
50 Ibn Kathir, Al-Fida' Ismail (d.774A.H), Tafsir Al - Qur'an zim, Qadimi Kutub Khanah, Karachi, Pakistan, Vol.1:103. 71 history of Arabia whose inscriptions are like those of
Phoenicians and Babylonians, and had a flourishing kingdom in
Yemen tract in South Arabia in about 800-700 B.C. They worshiped the planets and he further conjectures that the Queen of Sheba of Bible and Balgis of the Qur'an is connected with them. In the period of Caliph Maiman ibn Haran Al-Rashid in 830
A.D., a group of people in Harran in Syria claimed the privileges as the people of the Book. They wore peculiar dress and had long hair, worshipped stars with Hellenic tendencies, like the Jews contemporary with Jesus. 51
In his book ShariNah The Islamic Law, Prof. Doi, having explained exhaustively who the Sabians are, the opinions of the
Jurists and their evidences, he concluded that a Muslim is allowed to marry Sabian lady. 52
However, it is reported by Mujahid an eminent scholar that when
`Abdullah ibn 'Abbas was asked about the Sabi'is he said that they are people between Ahl al-Kitab and Magians. Ibn 'Abbas
51 'Ali, Yilstit Qur'an Translation and Commentary, King Fand Holy Qur'an Printing Complex, Al-Madinah Al-Munawwarah, Saudi Arabia, p.27.
52 Doi, `Abd Al-Rah man 1 , Shari`ah The Islamic Law, op.cit., p.137. 72
further said that marrying their women (Sabians) is forbidden
and animals slaughtered by them are also unlawful. 53
We can therefore conclude that, marriage with Sabian women is
permitted in Islam if they happen to follow the beliefs of Jews
or Christians. However, if they worshipped Angels, stars and
other created things then they are idolators whom Allah
(S.W.T.) has forbidden a Muslim to marry.
3.3.3. Marriage with Magians
As elaborated in chapter two that Magians are not Ahl al-Kitab,
it will not be a traumatic thing to say that it is prohibited
in Islam to marry Magian women though some jurists do not
agree with this rule. Jurists majority say that it is unlawful
to marry them because they are not Ahl al-Kitab as Allah says:
And this is the Book which we have revealed as a
blessing: so follow it and be righteous, that ye
may receive mercy. Lest ye should say: "The Book
was sent down to two peoples before us, and for our
53 AI- SUyilt Abdu al-Rah man JAM Al-Dur Al-Manth fir fi Al-Tafsir Al-Ma'thfir, vol.]: 183. 73
part, we remained unacquainted with all that they
learned by assiduous study"."
The two peoples mentioned in this verse are Jews and
Christians. If Magians were People of the Book, Allah would have included them likewise. Magians did not have any divine
Book but they were reading the book of Zaradisht who was a false Prophet and a Liar. 55
Ibn Al-Mundhir says that the prohibition of marrying magian women is not agreeable among the Jurists and Theologians. Abe
Thawr is of the view that marrying Magian women is lawful, because their religion is acceptable and affirmed by paying
Jizyah56 as the Jews and Christians do. In other words, he says that Magian women are lawful for they are left to practice
54 Qur'an 6:155-156 55 Al-Zuhaili, Wahbat, Al-lslamiwa 'Adillatuh, vol.7:155-156 . Ibn Qudamah, Muwaffaq Al-Din Abil Muhammad 'Abdullah ibn Ahmad, AI-Mughni fi Fiqh Ahmad Ibn Hanbali, vol.7:100-101.; Al-Kasfini; `Aki'u Al-Din Abu bakr ibn Mas'ild (d.587A.H), Kitdb Badd'i`u Al- Sand'i fi Tartib Al-Shard'i',Dar Al-Kutub Al-'Ilmiyyah, Beirut, Lebanon, vol.2:271; Al-Jassas, Hujjat Al-Islam Abiibakr Ahmad ibn 'Ali Al-Raze (d.370A.H.), Ahkam Al-Qur'an, Dar Al-Kutub A1-`Arabi, Beirut, Lebanon, vol.2:327,. 56 Jizyah: the root meaning is compensation. The drived meaning, which became the technical meaning, was a poll-tax levied from those who did not accept Islam, but were willing to live under the protection of Islam, and were thus tacity willing to submit to its ideals being enforced in the Muslim state. 74 their faith on condition that they pay Jizyah, just like the
People of the Book.'
Muhammad Rashid Rida supports this view with the following
Hadith which Imam Al-Shafi'i narrated that,
`Umar (R.A.) mentioned the Magians on the matter
concerning Jizyah and said "I do not know how do I
treat them?". 'Abdu Al-Rahman ibn 'Aufi a famous
companion of the Prophet (S.A.W.) replied to him "I
heard the Messenger of Allah (S.A.W.) saying that
treat them in the same way as Ahl al-Kitab." 58
From this Hadith some lUlama' say that marrying Magian women is allowed in Islam. But the meaning of this Hadith is a firm proof against their opinion. The Prophet's words, "treat them the same way you treat Ahl al-Kitab", means that they are not
Ahl al-Kitab because if they were, Sayyidina lUmar (R.A.) would not have asked people how to treat them. The hadith intended to
57 Al-Sabiq, A1-Sayyid, Fiqh A1-Sunnah, vol.6 p.215-216.
58 Al-Shawkani, Muhammad ibn 'Ali ibn Muhammad, Nayl fi Sharh Muntaga Al-Akhbar min A hadith Scoryid Al-Akhytir, vol.VIII p.56. 75 show the inviolability of their (Magian's) blood and accepting
Jizyah from them, and nothing else. In another narration the
Hadith says:
"Treat them the same way you treat Ahl al-Kitab
only that you should not marry their women nor eat
animals slaughtered by them". 59
The last portion of the Hadith shows that the treatment which is supposed to be in the same way with Ahl al-Kitab, is of those non-Muslims who stay in a Muslim country and nothing else . 60
It is also narrated by Sufiyan that Al-Hasan ibn Muhammad said:
"Prophet Muhammad (S.A.W.) wrote a letter to
Magians of Hajar inviting them to Islam. He
(S.A.W.) said to them if you accept Islam then what
we have is yours and what you have is ours. If
59 H asan, Khalid, Al-Zuwcy bighayr Al-Muslimitz, p.117.
60 Ibn Taymiyyah, Shaykh Al-Islam Ahmad, Majni`u Al-Fatciwah, vol.XXXI1:187-190. 76
anyone rejects he has to pay Jizyah but it is
unlawful to marry their women and eat animals
slaughtered by them". 61
3.3.4 Marriage with the women who follow Suhf
(scriptures) of Ibrahim and Idris and Zablar,the
Ho ly book of Prophet DiMid (P.B.U.T) .
Jurists have differed on this issue. The Hanafis say that everyone who believes in a divine religion which has got a revealed book such as Suhf Ibrahim, Shith and ZabOr of Dawud, marriage with them is permissible and to eat animals slaughtered by them is lawful if they do not practice polytheism. This is so because these people believe in a revealed book as Jews and Christians do. When they happen to polythise, it will be automatically unlawful for a Muslim to marry them or eat animals slaughtered by them. 62
The Shafi'is are of the opinion that it is unlawful to marry them or eat animals slaughtered by them because of the following verse:
61 Al-Shaulcani, Muhammad ibn 'Ali ibn Muhammad, Nayl Al-'Aw fcir, vol. VIII p.56.
62 Al - Sabiq,A1 - Sayyid, Fiqh Al-Sunnah, op.cit.,vol.V1 p.217 77
Lest you should say: The book was sent down to two
peoples before us. And for our part we remained
unacquainted with all that they learned by
assidious study"
They argue that the divine books which a woman can believe in and be lawful for a Muslim to marry her, are, Taurah the book of Prophet Musa (P.B.U.H.) and Injil the Gospel of Prophet 'isa
(P.B.U.H.). They say that inside these books were no laws except mere preachings and lessons. Therefore they will not be like Taurah and Injil which were comprised of laws. In other words, we can say that any divine book which did not comprise of laws is not regarded as a book, which, if a woman believes in, it will be lawful for a Muslim man to marry her."
The Hanbalis hold two opinions in which one of them, they agree with the Hanafis and the other one with the Shafi'is. 65
To conclude with, I am of the view that it is lawful to marry women who follow the above mentioned books if they exist. I do
63 Qur'an 4:56 64 A1-Sabiq, A1-Sayyid, Fiqh A1-Sunnah, vol.6:217 65 Ibid 78
not see any problem if there are people who follow the
teachings of Prophet Ibrahim, Dawed and Idris (peace be upon
them) and a Muslim is interested to marry their women. Because
they are almost the same as Jews and Christians who follow the
teachings of Prophet Mesa and 'isa (peace be upon them).
Moreover Prophet Dawed's Scripture is found in the Bible by the
name Psalms. And Allah has not also differentiated between the
Scriptures of Prophet Ibrahim and Mesa (peace be upon him).
Allah (S.W.T.) says:
And this is in the Books of the earliest
(revelations), the Books of Ibrahim and Musa."
However, it might be very difficult for someone to say that
these people do exist for most of them followed Islam as their
religion which abrogated all other religions which came before
it according to its teachings or else they followed either
Christianity or Judaism. So it is not easy today to find those
who follow the Scriptures of Prophet Ibrahim, Dawed, Idris and
others (may Allah's peace be upon them).
66 Qur'an 87:18-19 79
3.4 Prohibited marriages
It is worth after explaining the position of Islam on marriage with Al-Kitabiyyah to elaborate the prohibited forms of marriage in Islam which will also apply on Al-Kitabiyyah. The prohibition in Islam may either be permanent or temporary. The permanent prohibition is the one that prevents marriage to a woman permanently, because the reason for the prohibition is a permanent one and the temporary prohibition is the one which prevents marriage to a woman once she is in that condition which has made her prohibited until it changes, in which case marriage to her is legally lawful. The temporary prohibitions are:
3.4.2 Allit'ah: The Temporary Marriage
The four schools of Jurisprudence and majority of the Sahabah agree that Temporary marriage is unlawful and prohibited in
Islam whether the woman is a Muslim or a Kitabiyyah. Imam Zufar asserts that such marriage is valid and acceptable, the condition expressed of a specified period for its continuance being of no effect; because marriage is not to be held null on 80
account of a null or illegal condition therein expressed. To
him marriage does not cease and become obsolete because of the
imperfect conditions. But Majority of the Jurists have answered
him by saying that the temporary marriage is in the sense of
temporary contract and in Sharl`ah the meanings in any contract 67 are worthy of consideration rather than the expressions.
The Imamate Shilah says that temporary marriage is allowed in
Islam with either a Muslim woman or woman of the Book. They
accept this form of marriage if the following conditions are
mentioned at the time of contracting the marriage:
Mahr (dowry).
Duration of the marriage.
Using the following words:- Ankahtuki, Zawwajtuki,
68 Mattalatuki, which means I have married you temporarily.
Some of the rules of this marriage are:-
I. If Mahr (dowry) and duration of the marriage is not
mentioned, it becomes null and void.
II.There is no Talaq (divorce) or Li`an (Mutual impercation)
on this type of marriage.
67 Al-Zuhaili, Wahbat, AI-Fiqh 'Adillatuh, vol.VI1, p.64. 68 Al-Rawdat Al-Bahiyyah vol.LI, p.103 . 81
III.There is no Inheritance between the wife and the husband.
The children born under this form of marriage can inherit
the father or the mother and they (the parents) can inherit
them.
IV.If the duratiopn of the marriage comes to an end, the two
menstruation periods will be observed by those women who
menstruate. But if she does not, 45 days will be her waiting
period (liddah). For one whose husband has passed away, she
will wait for four months and ten days.
V. Renewal of the agreed duration is not acceptable before its
end."
The Imamate Shi`ah has based their opinion upon the following evidences:
1.Allah (S.W.T.) says:
Give them their dowry for the enjoyment you have of
them as a duty. 7°
In this verse Allah has used the word /stimtal (enjoyment) and not marriage, and also used the word 'UjOr (duty) instead of
Mahr (dowry), which shows that Temporary marriage is lawful.
69 Al-Mukhta esar Al-Nofi`i fi Fiqh Al-Inuimiyyah, p.205-207. 70 Qur'an 4:24. 82
They further illustrate their evidence from this verse that giving duty after enjoyment is like a duty paid after a contract. Therefore Temporary marriage is a contract between a woman and a man while dowry is obligatory on marriage contract before the enjoyment.
2. Temporary marriage was allowed in the early period of Islam in the Islamic battles of Khaybar, Tabtik and the Conquest of
Makkah. 71 'Abdullah ibn Mas'ad reported:
We were on an expedition with Allah's Messenger
(may peace be upon him) and we had no women with
us. We said: Should we not have ourselves
castrated? He (the Holy Prophet S.A.W.) forbade us
to do so. He then granted us permission that we
should contract temporary marriage for a stipulated
period giving her a garment. 72
`Abdullah then recited the following verse:
7 1 Al- Shawkani, Muhammad ibn 'Ali, Nayl Al- Awtar , vol. VI, p.136-137. Imam Muslim, Sahib Muslim translated by Apmad Siddiq, Sh. Muhammad Ashraf Publishing Company, 1979, Lahore, Pakistan, tladith No.3243, vol.II, p.705. 83
0 ye who believel make not unlawful the good things
which Allah hath made lawful for you, but commit no
excess for Allah loveth not those given to
excess. 73
Ibn 'Abbas (R.A.) and other Sahabahs like Asma' bint Abi Bakr,
Jabir, Ibn Mas'ad, Mu'awiyah; ibn Hurayth, Abu Sa'id ibn
'Umayyah ibn Khalaf and Salamah ibn 'Umayyah ibn Khalaf were of the opinion that Mut`ah is lawful. From the TabilOns (the followers of the Sahabah), Tawas, , Ata , , Sa'id ibn Jubair and the rest of Makkan Jurists were also of the same view that
Mut`ah is allowed in Islam.
These are the evidences of the Imamate Shl'ah to allow
Temporary marriage in Islam. But the Zaidite Shi'ah support the majority view of the Jurists that temporary marriage is not allowed in Islam and Ibn 'Abbas retrogated his opinion of allowing Mut`ah in Islam before his death. 74
73 Qur'an 5:87.
74 Ibn Al-Murtacia , AI-Bahru AI-Zakhkhar, vol.3, p.22 . 84
Majority of the Jurists have answered the evidences brought by
Imamate Shi'ah to support their opinion of allowing tempo rary
marriage in Islam in the following:
The word A1-Istimtal (enjoyment) in the verse means enjoyment
through a lawful form of marriage and not enjoyment through
mut`ah which is unlawful form of marriage. Also the word
(Nikah) which means the lawful marriage has been used
throughout from the beginning of the verses which has spoken
about the unlawful forms of marriage in Islam. It started with
"And marry not women whom your fathers
married... " 75
and ended up with
"If any of you have not the means wherewith to wed
free believing women... " 76
Therefore, it will be wrong to say that the word /stimtal means an enjoyment through temporary marriage. It does not mean the enjoyment which is out of marriage and unlawful."
75 Qur'an 4:22 76 Qur'an 4:25 77 Al-Subal, Dr. Mustafa , Al-'Ahweil Al-Shakhsiyyah , vol.1, p.83. 85
The verse has described Mahr (dowry) as 'Ajr (duty) because in
Nikah (marriage), Mahr is called 'Ajr as Allah (S.W.T) says:-
Wed them with the permission from their own folk
and give them their 'Ajr (duty)."
And in another verse Allah (S.W.T.) says:
0 Prophet! we have made lawful to thee thy wives to
whom thou hast paid their dowers. 79
Allah has used in these two verses the word 'Ajr as Mahr which shows that Mahr in marriage is called 'Ajr.
The Imamate Shi'ah also said in one of their evidences of allowing temporary marriage that it was permitted in the early
Ummah as the companions of the Prophet (S.A.W.) practiced it during some of their battles. But this happened because they were in dire need of their wives during these battles as they felt so loneliness in their journeys. Then the Prophet Muhammad
78 Qur'an 4:25 79 Qur'an 33:50 86
(S.A.W.) prohibited it afterwards. It was forbidden from that time till the Day of Judgement whether someone is in a dire need or not. There are many 'Ahadith elaborating its prohibition and some of them are:
1. Sabrat Al-Juhani reported: Allah's Messenger (may
peace be upon him) permitted temporary marriage for
us. So I and another person went out and saw a
woman of banu 'Amir, who was like a young long-
necked she-camel. We presented ourselves to her
(for contracting temporary marriage), whereupon she
said: what dower would you give me? I said: My
cloak. And my companion also said: my cloak. And
the cloak of my companion was superior to my cloak
which was worn out, but I was younger than him. So
when she looked at the cloak of my companion she
liked it, and when she cast a glance at me I looked
more attractive to her. She then said: Well, you
and your cloak are sufficient for me. I remained
with her for three nights, and then Allah's
Messenger (may peace be upon him) said: 0 Mankind!
I had granted you a permission to contract
temporary marriages. Indeed Allah has now forbidden 87
it till the day of :Resurrection . He who has any
such woman with whom he had contracted temporary
marriage, he should let her off and he should not
take back the dowery he has already paid. 8°
Salamah ibn Al-'Akwal and Jabir ibn 'Abdallah
reported: Allah's Messenger (may peace be upon him)
came to us and permitted us to contract temporary
marriage in the year of 'Aurfas and then prohibited
it later on. 81
Sabrah ibn Ma'bad reported: Indeed the Prophet
Muhammad (S.A.W.) forbade us to contract temporary
82 marriage on his last pilgrimage.
'Ali ibn 'Abi Talib reported that Allah's Messenger
(may peace be upon him) prohibited on the Day of
Khaibar the contracting of temporary marriage with
women and the eating of the flesh of domestic
asse. 83
80 Imam Muslim, Sahib Muslim (translated by Abd Al-Hamill Siddiq), Hadith No.3252 vol.II, p.706. 81 Ibid, Hadith No.3247. 82 Al-Imam Abil Davviid, Al-Sunan, Part I., p.290, Maktabah Imdadiyyah, Pakistan. 83 'Mani Muslim, Sahih Muslim (translated by Abd Al-Hamill Siddiq), Hadith No.3263. vol.II, p.708. 88
Ibn `Abbas was in favour of contracting temporary marriage to those who were on journey and only in a state of darOrah
(constrained). Sa'id ibn Jubair reported that ibn 'Abbas said:
Glory to Allah, I did not give such juristic opinion of allowing temporary marriage as such. It (temporary marriage) is like a carrion. It is prohibited except to the one who is constrained. But the Imamate Shi'ah made it lawful to every one whether he is in dire need or not and whether he is on journey
or not. 84
Though this is Ibn `Abbas's opinion, the Sahabah (R.A.) criticised him. When 'Ali (R.A.) heard that Ibn 'Abbas (R.A.) gave some relaxation in connection with the contracting of temporary marriage, he criticised him by saying to him: Do not be hasty (in your religious verdict) for Allah's Messenger
(may peace be upon him) on the day of Khaibar prohibited forever the doing of it (temporary marriage) and eating of the flesh of domestic asses. 85
It is also reported by 'Urwah ibn Al-Zubair that 'Abdullah ibn
Al-Zubair (R.A.) stood up (and delivered an address) in Makkah
84 Al-Shawkani, Muhammad ibn 'Ali, Nay! Al-'Awtar fi Sharh Muiztaqd Al-Akhbar, vol. VI, p.134
85 Imam Muslim, Saki') Muslim (translated by Abd Al-Hanzid SiddIq), Hadith No.3266, vol.11, p.708 89 saying: Allah has made blind the hearts of some people as He has deprived them of eyesight that they give religious verdict in favour of temporary marriage, while he was alluding to a person (Ibn 'Abbas). Ibn 'Abbas called him and said: You are an uncouth person, devoid of sense. By my life, Mutlah (temporary marriage) was practised during the lifetime of the leader of the pious (he meant Allah's Messenger, may peace be upon him), and Ibn Al-Zubair said to him: Just do it yourselves, and by
Allah, if you do that I will stone you with your stone."
The Transmitters of the Prophetic traditions have said that Ibn
`Abbas did reverse his decision of allowing temporary marriage in Islam. Imam Al-Timidhi narrates that ibn 'Abbas said: Mut'ah was permitted in early times of Islam when a person would be in a strange country whereby he knows nobody. On this circumstances he would marry a woman where he could keep his goods with her. Through this marriage he would stay there comfortably. This was so, till Allah (S.W.T.) revealed the following verse:
Who guard their modesty, except with those joined
to them in marriage bond, or the captives whom
86 Ibid, Hadith No.3261, 90
their right hands possess, for (in their case) they
are free from blame."
Ibn 'Abbas said: After this verse it is unlawful to have sexual
intercourse with any other woman except these two types of
women mentioned in the above verse. 88It is reported by many
scholars that Ibn 'Abbas reversed his decision in favour of
Mut'ah marriage. It is so because there is a consensus of
opinions by the companions of the Prophet Muhammad (S.A.W.)
which prohibits forever the contracting of this marriage in
Islam. Therefore it is improbable for Ibn 'Abbas to disagree
with them.
Al-Hazimi reported that Jabir ibn 'Abdullah said: we went out
with the Prophet Muhammad to Tabilk for jihad till we reached at
a town called Al-lAgabah near Syria. At this place women came
from different areas and we contracted temporary marriage with
them. When the Prophet (S.A.W.) saw them, he asked us about
them. We told him that they were our women whom we contracted
temporary marriage with. The Prophet (S.A.W.) became so angry
87 Qur'an 23:5-6.
88 Al-Shawkini, Muhammad ibn 'Ali, Nayl Al-Awtar fi Sharh Muntaqci Al-Akhbcir, vol.6, p.135. 91 that his face changed completely. He stood up and addressed us.
He first praised Allah, thanked Him and prohibited us from contracting this unlawful form of marriage. We promised from that very day that we will never practice temporary marriage forever. 89 It is also reported by Abu 'Awanah that Ibn Jarij who had given more than twenty juristic verdicts in favour of temporary marriage said to his students: Be witnesses that I have withdrawn my opinion in favour of Mut`ah."
All these 'Ahadith shows that the authorization of temporary marriage was abrogated. 91It seems that Ibn 'Abbas and other companions who gave juristic verdict in favour of Mutlah, did not become acquainted with the 'Ahadith which abrogated the permission of this form of marriage. Marriage in Islam is a strong bond and a binding contract, based on the intention of both partners to live together permanently in order to attain, as individuals, the benefit of the repose, affection, and mercy which are mentioned in the Qur'an, as well as to attain the
" Nusb Al-Reiyah, vol.3, p.179. Al-Shawkani, Muhammad ibn 'Ali, Nayl Al-Awgir fi Sharh Muntaqa Al-Akhbar, vol.6, p.136.
91 Al-Shanqiti, Muhammad Al-Amin ibn Muhammad Al-Mukhtfir (d. l393A.H), Adwa' AI-Bayern fa ickih Al-Qur'an bi Al-Qur'an, First Edition 1403A.H\1983A.D., Madinah, Kingdom of Saudi Arabia, vol.1, p.248-249. 92 social goal of the production and perpetuation of the human species. Allah says:
And Allah has made for you mates of your own
nature, and made for you, out of them, sons and
daughters and grandchildren. 92
Now, in temporary marriage, which is contracted by the two parties to last for a specified period of time in exchange for a specified sum of money, the above-mentioned purposes of marriage are not realised."
Temporary marriage was permitted in the early period of Islam because Muslims were passing through what might be called a period of transition from Jahiliyyah (pre-Islamic) to Islam.
Fornication was very common and wide-spread among the pre-
Islamic Arabs. After the advent of Islam, when they were required to go on military expeditions, they were under great pressure as a result of being absent from their wives for long periods of time. Among the believers were some who were strong in faith and others who were weak. The weak ones feared that
92 Qur'an 16:72
93 A1-Qard awl, Yfisut The Lawful and the Prohibited in Islam, American Trust Publicatios, Indianapolis, United States of America, p.188-189. 93 they would be tempted to commit adultery, which is a major sin and an evil course, while the strong in faith, on the other hand, were ready to castrate themselves, as stated in one of the traditions of the Prophet (S.A.W.) whereby Jabir ibn
`Abdullah and Salamah ibn Al-Akwa' report: While we were in an army, Allah's Apostle (S.A.W.) came to us and said,
"You have been allowed to do Mut`ah (temporary
marriage), so do it."
Salamah ibn Al-Akwa' said: Allah's Apostle said,
"If a man and a woman agree (to marry temporarily),
their marriage should last for three nights, and if
they like to continue, they can do so.""
I do not know whether that was only for us or for all the people in general. Abu 'Abdullah Al-Bukhari said: 'Ali (may
Allah be pleased with him) made it clear that the Prophet
(S.A.W.) said,
"The temporary marriage has been cancelled." 95
9a A1-Bukhara, A1-Sahih, vo1.VII p.37. Ibid 94
Ibn Mas'ild also reported: We were on an expedition with the
Messenger of Allah (peace be upon him) and did not have our wives with us, so we asked Allah's Messenger (peace be upon him), "Should we not castrate ourselves?" He forbade us to do so but permitted us to contract marriage with a woman up to a specified date, giving her a garment as a dowry (mahr). 96
This is how temporar y marriage provided a solution to the dilemma in which both the weak and the strong found themselves.
It was also a step forward to the final legalization of the complete marital life in which the objectives of permanence, chastity, love and mercy, as well as the widening of relationship through marriage ties were to be realised."
We can also say that the licentiousness of this marriage was in the group of forgiven things which were not connected with any rule like alcohol before it was forbid den. Then came texts from the holy Qur'an and Sunnah to prohibit it. Mbt`ah though all people agree to call it temporary marriage is not marriage at all, since divorce, maintenance and inheritance does not exist in this form of marriage. Every one should bear in mind
96 Ibid
97 Al-Qard awl, Yilsuf, The Lawful and the Prohibited in Islam, p.189. 95 that marriage was introduced for good objectives to the society i.e.creating peaceful minds in people, baring children and building up a family. In Mutlah there is nothing except fulfilling one's sexual desires within a certain period, and with a fixed remuneration agreed upon. In that, it will not make any sense when Mut`ah is permitted while Zina
(fornication) is forbidden. It is detrimental and deleterious to a woman because she becomes a commodity which moves from one's hand to another. It also affects the children since they can not get a house where they can settle and brought up happily. This type of marriage, if allowed, can create more problems than it can solve. There is no any public interest in it and if unchecked, it can give rise to prostitution.
Therefore it is not allowed for a Muslim man to take a woman, whether she is a Muslim or a Kitabiyyah (woman of the People of the Book) and contract his marriage in this form.
3.4.3 Shighar Marriage
This is a form of marriage which is forbidden in Islam to be contracted with any other woman whether she is a Muslim or a
Kitabiyyah. Shighar is an Arabic word which literally means emptiness. In Arabic they say Baladun Shaghirah meaning a country which has declared independent and it is no longer 96
under any foreign government. In another meanings it is the
lifting of a dog its leg while it is passing excreta. It
resembles the dog when it lifts its leg to urinate. This
practice of the dog is called Shighar in Arabic." This is the
reason why this word Shighar has been applied to this
undesirable form of marriage since there is a resemblance of
picking up a woman without paying any dowry at the time of her
marriage. This form of marriage was known in pre-Islamic ages
in Arabia whereby a person could just say to his friend give me
your daughter or sister and I will give you my daughter or
sister to marry without any dowry. It was called Shighar
because of being an ignominous and opprobrium thing."
Majority of the Jurists say that this form of marriage is
unlawful. They base their view on the following traditions of
the Prophet (S.A.W.):
a) Ibn 'Umar (R.A.) reported that the Prophet
(S.A.W.) prohibited Shighar which means that a
man gives his daughter in marriage on the
98 Al-Fairilz 'Abadi , Majd Al-din Muhammad ibn Ya`qiib, Al-Qanisu Al-A/fulfil, Dar Al- Fikr, Beirut, Lebanon, vol.II p.60. 99 Ibn Qudamah, Muwaffaq Al-din Abil Muhammad `Abdullah, Al-Mughni,vol.7 p.134. Also see Ibn Rushd, Muhammafd ibn Ahmad ibn Muhammad ibn Ahmad, Biddyat Al-Mujtahid, vol.2, p.57. 97
condition that the other gives his daughter to
him in marriage without any dowry being paid by
100 either.
b) Ibn 'Umar (R.A.) reported Allah's messenger as lol having said: There is no Shighar in Islam.
According to the opinion of the Majority of the Jurists, it is not allowed for a man to have sexual intercourse with the woman either before or after this unlawful form of marriage has been
102 contracted.
Imam Abu Hanifah is of the opinion that this marriage is valid and dowry equal to the status of these two women status should be paid by their husbands. This is so because the men have
loo Al-Nisabilri, Imam Muslim, Al-Sahih (translated into English by 'Abdul-Hamid), vo1.11 p.713, Hadith No.3295. Also see Al-Bulchari, Muhammad ibn Ismail, Al-Sahih (Translated into English by Muhammad Mulisin Khan), Hadith No.47, Vol.V11 p.35.
101 A1-Nisabilri, /mtim Muslim, Hadith No.3298, Vol.11 p.713.
102 Ibn Rushd , Muhammad ibn Ah mad ibn Muhammad ibn Ahmad, Bidayat Al- Mujtahid, vol.11 p.57; Al-Dirdir, Al-Sharh Al-Kabi, vol.11 p.239; Al-Haskafi, Al-Durr Al-Muldacir fi Sharh Tanwir Al-Abscir, Kitab Bhavan, New Delhi, India, vol.II p.457; `AbduAl-Rahman I Doi , Shari'ah The Islamic Law, p.156; A1-Nawawiyy, Abu Zakariyya Yahaya ibn Sharaf MughnI Al-Muhtcy, Third Edition1396A.H\1976A.C, Maktabat Mustafa Al-Babi, Cairo, Egypt, vol.III p.142; Al-Shirazi, Abu Ishaq Ibrahim ibn 'Ali ibn Ylisuf (d.476A.H.), Al-Muhadhdhab, Maktabat Mustafa Al-Babi Al-
Halabi 1377A.H\1957A.C, Cairo, Egypt, vo1.11 p.46; Ibn Muflih , Al-Imam Shams Al-din Al-Maqdasi Abu `Abdillah Muhammad (d.763A.H), Kitab Al-Fura ', Fourth Edition, `Alam Al-Kutub, Beirut, Lebanon, vol.v p.215. 98 called dowry things which are not supposed to be dowry.
Therefore to Imam Abu Hanifah contracting marriage in this form is disliked but it does not make the contract invalid. It is like contracting a marriage and making wine or swine its dowry. The marriage is valid but the husband has to pay dowry equal to the woman's status from lawful things.' °3
Here the majority of the Jurists view is the preponderant one because Mahr (dowry) is the right of a woman and is a means of her security and not merely a bride price to be enjoyed by her parents or to get undue advantage by giving one's daughter or sister in marriage as an exchange for taking in marriage the other man's daughter or sister or award without paying any dowry. This form of marriage deprives the woman of her right.
So it is absolutely unlawful for a Muslim man to contract his marriage with a woman, whether she is a Muslim or a Kitabiyyah, in the form of Shighar.
103 Al-Zuh aili, Wahbat, Al-Figh wa Adillatuh, vol.VII p.116-117 Also see Al-Sabiq, Al-Sayyid, Figh Al-Suntan, vol. VI, p.108-109. 99
3.4.4 Nik&P Al - Mbhallil: Marriage with a tri ple
divorced wife
In Islam, where a person pronounces three divorces (triple divorce) against his wife, whether she is a Muslim or a
Kitabiyyah, he is forbidden to re-marry her till she marries another man and the marriage is consummated. Allah (S.W.T.) says:
So if a husband divorces his wife (irrevocably), he
can not, after that, re-marry her until after she
has married another husband and he has divorced
her. 104
It is reported by 'A'ishah (may Allah be pleased with her) that: There came the wife of Rifa'ah to Allah's Apostle (may peace be upon him) and said: I was married to Rifa'ah but he divorced me, making my divorce irrevocable. Afterwards I married 'Abd Al-Rabman ibn Al-Zubair, but all he possesses is like the fringe of a garment (i.e. he is sexually weak).
Thereupon Allah's Messenger (may peace be upon him) smiled, and said:
104 Qur'an 2:230 100
Do you wish to return to Rifa'ah. (You) can not (do
it) until you have tasted his sweetness and he
(`Abd Al-Ratiman) has tasted your sweetness.
Abu Bakr was at that time near him (the Holy Prophet) and
Khalid (ibn Sa'id) was at the door waiting for a permission to be granted to him (to enter). He (Khalid) said: Abu Bakr, do you hear what she is saying loudly in the presence of Allah's 105 Messenger (may peace be upon him)?
Whoever marries the woman with the aim of divorcing her later, so as to remove the prohibition against the husband who pronounces the triple divorce, such marriage is called Tahlil marriage and is unlawful in Islam. It is prohibited because the notion of this marriage is as the same as temporary marriage which its prohibition has been already discussed. This is the reason why the Prophet (S.A.W.) made it unlawful as reported in the following 'Ahadith:
105. Al-Inicim Muslim, Al-Sahib (translated by Abd Siddiq), Fladith No.3354, Vol.II p.729. 101
'Abu Hurairah reported that the Prophet (S.A.W.)
said:- "Allah had cursed those who permitted the
forbidden and for whom the forbidden is
permitted". 106The so called permission can not
legalise the man to the husband who pronounces
the triple divorce.'"
'T.Jcibah ibn 'Amir reported that the Prophet
Muhammad (S.A.W.) said: Would you like to know
the borrowed goat? Yes they answered. Then the
Prophet (S.A.W.) said: It is he who marries a
woman with the notion of making her lawful to '°8 her former husband who triply divorced her.
'Umar (may Allah be pleased with him) said if
the people who permit the forbidden and those
whom the forbidden is permitted are brought
before me, I will stone them. His son 'Abdullah
106 Al-Tirmidhi, Abu isa Muhammad ibn `isa ibn Sawrah, Al-Sahih, Hadith No.1119, Vol.III p.418-419. Also see Abil Daud, Al-Sunan, Maktabah Imdadiyyah, Pakistan, Part II , p.290-291.
10' Mahmild, `Abd Al-Malik Bappa, Supremacy of Islamic Law, Hudahuda Publishing Company, Zaria, Nigeria, p.30.
1°8 Al-Shaukani, Muhammad ibn Nayl Al-'Awtoir fi Sharh Muntaqa Al-Akhbar, vol. VI p.159; Also see Thu Majah, Abu `Abdullah Muhammad ibn Yazid , Al-Sunan, Qadimi Kutub Khanah, Karachi, Pakistan, vol.II p.139. 102
asked him about this. He then said: both are
fornicators .109
d) A person asked Wmar (may Allah be pleased with
him) about this form of marriage by saying: what
do you say about a woman whom I have contracted
marriage with, in order to make her lawful to
her first husband, who triply divorced her, but
he did not urge me to do so and he did also not
know about it? 'Umar (may Allah be pleased with
him) said to him: No, except you marry her with
your own wish. If you dislike her divorce her
and if you admire her keep her with you. We
considered it as fornication at the time of the
Prophet (S.A.W). llo
ah111 Imam Malik, Ahmad ibn Hanbali, Al-Thawri and Al-Zahiriyy consider this form of marriage unlawful because of the above
112 mentioned Wadith which prohibit this form of marriage. This
109 1bn Abi Shaibah , Al-Musannafah, vol.4:122 Also see `Abd Al-Razaq, Al-Musannafah, vol.2:207
10 Al-Shawkani, Muhammad ibn 'Ali ibn Muhammad, Nayl Al-Awicir fi Sharh Muntaqa Al-Akhbeir, Vol.VI p.158. Al-Zeihirliyah is a group of Muslims who interpret Islamic texts according to their wordings. 12 thn Qudamah, Muwaffaq Al-din Abu `Abdullah ibn Ahmad, Al-Kcifi, Fourth Edition 103 is so because cursing in Shari'ah (Islamic Law) does not occur except on unlawful things and lawful connection is that, which takes place in the natural way, and in this case there is no guarantee that such was the case. 113
Imam Al-Shafi'I says that Al-Muhallil who is cursed in the above 'Ahadith is the one who contracts his marriage with the aim of making the woman lawful to her first husband and divorces her soon after the consumation. It is lawful then, if someone does not put that condition when contracting this marriage. 114
Imam 'Abu Hanifah and Zufar are of the opinion that this form of marriage is lawful. To them these conditions do not violate the marriage contract.
1405A.H\1985A.D., Al-Maktabah Al-Islami, Beirut, Lebanon, vol.Bil p.58-59. Also see Ibn Rushd, Muhammad ibn Ah mad ibn Muhammad ibn Ah mad, Biddyat Al-Mujtahid, Vol.II p.58; A1-Sayyid A1-Sabiq, Fiqh Al-Sunnah, Vol. VI p.93.
113 Al-Farghani, Imam Faldiruddin H asan ibn Mans& Al-Uzijandi, Fatdwa Qadikhan Relating to Muhammadan Law, Law Publishing Company 1977, Lahore, Pakistan, Vol.I p.105. 114 A1-Sayyid Al-Sabiq, Fiqh Al-Sunnah, vol.VI p.94. 115 Ibid 104
I personally agree with /mdm Al-Shafi'l that if someone contracts his marriage without an intention of making the woman lawful to her former husband, and that is by not divorcing her unless it is impossible to live with her, then their marriage is lawful. Because the woman becomes automatically lawful to her former husband after marriage contract and if divorced after consumation. But it is unlawful, if one, contracts his marriage, with the intention of making the woman permissible to her former husband and divorces her immediately after consumation. The woman will no longer be lawful to her former husband because her marriage with the second man is not lawful.
She will only be lawful to her former husband after a lawful marriage has been contracted between her and another man. So, if this marriage was allowed in /s/dm, there would have been no difference between it and temporary marriage which its prohibition has been already elucidated.
3.4.5 Marriage of Muhrim (one who is in the state of Ihram i.e in Pilgrims dress)
This is a marriage whereby a person in pilgrims dress and
performing (tlajj) Holy Pilgrimage or (lUmrah) lesser
Pilgrimage, contracts marriage with a woman, or arrange the 105 marriage of another one or make proposal of marriage. Such type of marriage is not allowed in Islam, whether the woman happens to be a Muslim or a Kitabiyyah, as the Prophet Muhammad
(S.A.W.) forbade it±" 'Uthman ibn 'Affan (may Allah be pleased with him) reported that Allah's Messenger (may peace be upon him) had said:
A Muhrim should neither marry himself, nor should
he be get married to anyone, nor should he make the
proposal of marriage. 117
This was the custom of the Arabs in pre-Islamic Arab and when
Islam came it was amongst the things which were confirmed as
Nubaih ibn Wahb reports in the following hadIth that: 'Umar ibn
`Ubaidullah ibn Ma'mar sent me to the daughter of Shaibah ibn
`Uthman as he wanted to make the proposal of the marriage of his son with the daughter of Shaibah ibn 'Uthman. He (Shibah ibn 'Uthman) was at that time (busy) in the season of
Pilgrimage. He said: I deem him to be a man of the desert (for
116 Ibn Qudamah, Abil Muhammad 'Abdullah ibn Ahmad, AI-Mughni, Vol.VII p.140. "'Al-Nisibitri, Al-Imam Muslim, Al-Sahih, Iladith No. 3280, Vol.11p.711. Also see Ibn Majah, Abu 'Abdullah Muhammad ibn Yazid (d.273A.H.), Al-Sunan, Kutub Khan, Karachi, Pakistan p.141. 106 it is a common thing) that a Muhrim can neither marry, nor is he allowed to be married to anyone. 118
The Hanafis are of the opinion that it is not a condition that when a Muslim wants to marry, he should not be in the state of
/Pram. Furthermore, they say that it is not absolutely unlawful to marry during the days of Pilgrimage. As far as the prohibition mentioned in other Ahadith is concerned, they state that it refers to the conjugal act after marriage and not the marriage itself. They also assert that the prohibition is there, but it is not an absolute prohibition, but a prohibition denoting disapproval. So, to them a Muhrim is allowed to marry while in that state, or to be married to anyone, or to make the proposal of marriage . 119 They assert their view on the basis of the following tradition:
Narrated Ibn `Abbas (may Allah be pleased with him):
11 Al-Imam Muslim, Al-Sahib, Hadith No. 3279, Vol.IIp.71 I .
119 Al-Zub aili, Wabbat, AI-Fiqh wa Adillatuh, vol.VII p.80 . 107
The Prophet (S.A.W.) got married to Maimanah while
120 he was in the state of Ihram.
But the predominant view is that the Holy Prophet (S.A.W.) forbade a Muslim to do so. It is impossible that the Prophet
(S.A.W.) should act against his sayings as it is reported in the tradition of Ibn 'Abbas (may Allah be pleased with him).
The Holy Prophet (S.A.W.) did not marry Maimanah while in the state of Ihram but he proposed marriage while in the vicinity of Haram and as a person staying within this vicinity is also called a Muhrim, it was under this impression that Ibn `Abbas
(may Allah be pleased with him) reported that the holy Prophet
(S.A.W.) married Maimanah while he was in the state of Ihram.
Al-Hafiz ibn Al-Qayyim does not regard the opinion of Ibn
`Abbas (may Allah be pleased with him) valid on seven grounds, amongst which the most important is that he was at that time of a tender age and could not, therefore, make this assertion about the marriage of the Holy Prophet (S.A.W.) with Maimanah
120 Aj..BuiThin," Abil `Abdullab Muhammad ibn Ismail , Al-Sahli) (translated into English by Dr. Muhammad Muhsin Khan), vol.VII p.36.
Also see Al-MAN-in', Al-Imam Muslim, Al -Sahib, Hadith No.3283,Vol.11p.711. 108 in the state of Ihrdm on the basis of his personal knowledge.
He further states that the other reporters are to be preferred and considered more reliable particularly on this issue since in they speak of this fact on their personal knowledge. Yazid ibn Al-'Asamm reported: Maimanah daughter of Al-Harith narrated to me that Allah's Messenger (may peace be upon him) married her and he was not in the state of Ihram. And she
(Maimanah) was my mother's sister and that of Ibn 'Abbas (Allah 122 be pleased with him).
So the report of Maimilnah herself (may Allah be pleased with her), is more authentic and reliable as compared to that of Ibn
`Abbas since it was she, with whom the Holy Prophet (S.A.W.) contracted marriage.
3.4.6 Marriage with a woman during her 'Iddah
(waiting period)
A marriage with a woman observing `Iddah period whether she is a Muslim or a Kitabiyyah is void till her waiting period ends.
During this period, none is allowed to marry her except the
121 —_ tlafiz Ibn Al-Qayyim AI-Jawziyyah, Zcid Al-Ma'cid fi Khayr p.200
122 Al-Nisabfiri, Al-Imam Muslim, AI-Sakti), Hadith No.3285,Vol.11p.7I I. 109 previous husband if he is alive and wishes to take her back. It is so because the relationship which was between them before divorce still exists. 123 Allah (S.W.T.) prohibited this marriage as stated in the following verse:
Do not make a secret contract with them except in
terms honourable, nor resolve on the tie of
124 marriage till the term prescribed is fulfilled
This means that a man shall not make a specific proposal to a woman in 'Iddah (waiting period). However, one can send implied words, like the following, to a woman whose husband dies or who has been irrevocably divorced: "I wish to find a woman of good character". But even here, if a woman is having the 'Iddah of
Talaq (divorce) where rajah (chances of reconciliation) is still possible, a man should not send her even implied words for she is still considered as a legal wife of the ex-husband.
By doing so, one is becoming instrumental in breaking up a
125 family where there are still chances of reconciliation .
123 A1-1:1 askafi , Al-Dur Al-Mukhtar, voLra p.38; Al-Jass as, A Pk.= Al-Qur'an, Vol.! p.422; , Al-Badd Vol.11 p.268; A1-Tab awi, Al-Mukhtasar, p.178, Dar Al-Kutub A1-`Arabi, Cairo, Egypt; Al-Dirdir, Al-Sharp Al-Saghir, Vol.11 p.343; Al- Shirazi, Al-Muhadhdhab,V ol. II p.47; A1-Bahuti, Kashshcif Al-Qina `, V ol. V p.17 124 Qur'an 2:235
125 Doi, `Abdu Al-Rah man I., Sharrah The Islamic Law, p.126. 110
Allah (S.W.T.) has also urged the women not to get married
immediately after the divorce till they wait for a certain prescribed period. Allah elaborates:
Divorced women shall wait concerning themselves for
three monthly periods. And it is not lawful for
them to hide what Allah hath created in their
wombs, if they have faith in Allah and the Last
day. And their husbands have the better right to
take them back, if they wish for reconciliation.
And women shall have rights similar to the rights
against them, according to what is equitable; but
men have a degree over them and Allah is exalted in
Power. 126
Verily, none is allowed to marry a Kitabiyyah in her lIddah except her husband with whom marriage relationship still exists as elucidated in the above verse.' 27
126 Qur'an 2:228
127 Mabmiid, 'Abdul Malik Bappa, Supremacy of Islamic law, p.30 111
3.4.7 Marriage with a married woman
It is absolutely unlawful for a Muslim to marry a woman who is already married by another man whether she is a Muslim or a
Kitabiyyah. 128Allah (S.W.T.) says:-
Also (prohibited are) women already married, except
those whom your right hands possess 129
This is so because it is prohibited in Islam for anyone to transgress against someone's right. Such marriage, if allowed, will create enemity in the society and genellogies will be mixed up. It will be very difficult for someone to know his gene4logy.
The Prophet (S.A.W.) did even prohibit one's making the proposal of marriage when it has already been made by one's brother until he permits or gives her up. 13 0
128 Al-Zuhaili, Wahbat, Al-Fiqh wa Addlatuh,vol.V11 p.147. Also see Al-Sabiq, A1-Sayyid, Fiqh Al-Sunnah,V ol.VI p.185. 129 Qur'an 4:24
130 Al-Muhadhdhab, vol.II p.47; Al-Tab awl, A1-Mukhtasar, p.178; Ibn Juzay, Al-Qawanin Al-Figiu)ryah, p.205; Ibn Qudamah, Al-Mughtti, vol.VII p.110 112
Abu Hurairah (may Allah be pleased with him) reported Allah's
Apostle (may peace be upon him) as having forbidden a person making the proposal of marriage when his brother has already made such a proposal, or a woman asking the divorce of her sister in order to deprive her of what belongs to her. 131
Therefore a man should not ask for the hand of a girl who is already engaged to his (Muslim) brother, whether she is a
Muslim or a Kitabiyyah, but he should wait till the first suitor marries her or leaves her.
3.4.8 Marriage with two women who are related to each
other
It is unlawful for a man to combine two women, of whom one is, for instance, the aunt, niece or sister of the other in marriage, whether they are free women or female slaves. Being related to each other would render a marriage between them illegal, if one of them is a man, and for the same reason,
131 Al-Inzcim Muslim, Al-Sahih, vol.II p.712, FI adith No.3289 Also see Al-Bukhari, Al-Sahih, Vol.VII p.56; Al-Sajistani, Daud Sulaiman ibn Al-Ash`ath Al-Azdi, Al-Sunatz, Vol.! p.291. 113
132 because this would occasion a confusion of kindred. There is
no difference whether the women happen to be Muslims or People
of the Book.
Allah (S.W.T.) says:
Prohibited to you in marriage is also two sisters
in wedlock at one and the same time except for what
is past, 133
This type of marriage creates hatred and enemity between the
women. It has the sweetness and sanctity of mother and daughter
and should in no case be marred with the spirit of rivarly that
134 is found among co-wives.
Abu Hurairah (may Allah be pleased with him) reported Allah's
Messenger (may peace be upon him) having said this:
132 Al-Kasini, Vol.II p.262; Al-Haskafi, Al-Dur Al-Mukhteir, Vol.11 p.391; , AI-Muhadhdhab, Vol.11 p.43; Al-Bahilti, Kashshdf Al-Qind', Vol.5 p.80; Ibn Qudamah, Al-Mughni, V ol.VII p.88; Hamilton, Charles, Al-Hidayah, p.29; Al-Khatib, Muhammad Al-Sharbini, Mughni A1-Muhkij,Vol.111 p.180; Al-Farghani, Fatdwa Qadikhan, Vol.1 p.111. 133 Qur'an 4:23 134 Al-Sabiq, Al-Sayyid, Figh AI-Sunnah, Vol. VI p.182 114
One should not combine a woman and her father's
sister, nor a woman and her mother's sister in
marriage. 135
He also narrated in another tradition that:
The Prophet (S.A.W.) forbade that a woman should be
married along with her paternal or maternal aunt. 136
Umm Habibah reported: I said, "0 Allah's Apostle! Marry my sister, the daughter of Atha Sufiyan." He said, "Do you like that?" I said, "Yes, for even now I am not your only wife; and the most beloved person I would like to share the good with me is my sister." The Prophet (S.A.W.) said, "But that is not lawful for me (i.e., to be married to two sisters at a time.)" 1 "
If this type of marriage has been contracted, the last marriage of the two will be void. If he does not know with which woman
135 Al-Nisabiiri, Al-Imam Muslim, Al-Sahli), V ol. II p.709-710; Al-Tirmidhi, Abu `Isa Muhammad ibn isfi ibn Saurah (d.279A.H.), AI-Ja mi p.423-424.
136 Al-Bulchari, Abu `Abdullah Muhammad ibn Ismail , Vol.VII p.34; Al-Sajistani, Al-Imam Abu Daud Sulaiman ibn Al-Ash`ath Al-Azdi, Al-Sunan, V01.1 p.289
137 Al-Bukhari, Abu 'Abdullah Muhammad ibn isma11, Vol.VII p.32; Ibn Majah, Abu 'Abdullah Muhammad ibn Yazid (d.273A.H.), Al-Sunan, p.140. 115 among the two he contracted first, then the two women will not be lawful to him. It is also unlawful for a man to combine them in waiting period. So, if a man divorces a woman, he is not allowed to be engaged in marriage with her sister till the waiting period ends. Because this woman who is in waiting period, is still under the guardianship of her husband till the end of her lIddah (waiting period). If he proposes her sister during this period, he will be combining two related women in marriage, which is prohibited for that will break the ties of kinship, due to jealousy and hatred that may occur as a result of it, because co-wives are mostly jealous to each other.
3.4.9 Marriage with a Fifth woman
A Muslim is allowed to marry up to four wives as stated in the
Holy Qur'an. Allah (S.W.T.) says:
If you fear that ye shall not be able to deal
justly with the orphans, marry women of your choice
two, or three, or four; but if ye fear that ye
shall not be able to deal justly (with them) then
only one, or that your right hands possess. That 116
will be more suitable, to prevent you from doing
138 justice.
Provided a muslim is able to treat the women with equality, he is allowed to marry four wives. After that, it is prohibited for him to marry a fifth wife whether she happens to be a
Muslim or a Kitabiyyah unless one of them dies or he divorces.
Islam did proscribe the limitless polygamy practiced in the pre-Islamic Arabs. It was a fashion with chiefs of tribes and rulers to keep more than four women as wives. For instance, some Muslim rulers had become victims of passion and practised limitless polygamy in the later periods of Islamic history.
Whatever their practices, such polygamy has no place in Islam.
If necessa ry a Muslim can, as already stated, marry up to four wives and not more than that.'"
Ibn 'Umar (may Allah be pleased with him) reported that: Ghilan
Al-Thaqafi accepted Islam and he had ten wives. The Holy
Prophet (S.A.W.) said to him:
"Choose four out of them and give up all others". 140
138 Qur'an 4:3
139 Doi, `Abdu Al-Rah man I., Shari'ah The Islamic Law, p.147.
140 Al-TirmidhI, Abu `isa Muhammad ibn isa ibn Sawrah, Al-Jcimi Al-Sahih,vol.111 117
Therefore, it is absolutely unlawful for a Muslim man to marry more than four wives at a given time whether the fifth woman he wants to marry happens to be a Muslim or a Kitabiyyah.
10. Marriage with a woman against whom Li`an (Mutual
imprecation) has been pronounced (Al-Mula`anah )
If a Muslim man marries a Kitabiyyah and they happen to pronounce Lilan, they will be automatically and irrevocably separated. Thus, the wife is prohibited to the husband from the moment the li`an is concluded. The authoritative reasons for this prohibition are:
It was related, on the authority of Ibn `Abbas
(R.A.) that the Prophet (S.A.W.) was reported to
have said, "The spouses who have pronounced
Lilan, if they separated, will never meet
together (as married couples) forever. ”141
`Ali and Ibn Masad were reported to have said,
"It has been an established practice (since the
p.426, Hadith No.1128.
141 A1-Darqutni 1 1 8
time of the Prophet (S.A.W.) that the spouses
who made Li'an should never meet together (as
married couples). 142
c) Malik was reported to have said, "the Sunnah
with us, is that those who curse each other are
„ 143 never to be married.
If the husband has withdrawn the accusation then the Muslim
Jurists differ regarding this. Thus the majority of them hold that, the couple will never re-marry notwithstanding the withdrawal of the accusation by the husband. They rely on the above cited traditions.
Abu Hanifah, on the other hand, holds a contrary opinion.
According to him, if the husband withdraws his accusation, it is lawful for him to contract a new marriage with the wife. He supports his view with the fact that if he calls himself a liar, by withdrawing the accusation, the li'an is vitiated, and therefore, the punishment (for false accusation) will be inflicted on him, and the child (if the wife is pregnant) is ascribed to him. And since the child
142 Ibid
143 Tmjumah, A.A. amd Johnson,Y. Al -Minva tta' by Imam Malik (translated), p.263, Diwan Press (1982), England. 119 is ascribed to him, he can legally re-marry the wife. This is because the reason which necessitates the prohibition is the uncertainty about who is specifically truthful, among the spouses, in his or her claim even though it is certain that one of them must be a liar. Therefore, if the fact is ascertained and disclosed (through the withdrawal of the accusation by the husband), then the prohibition is
144 removed.
After a thorough explanation of Islamic position on temporary prohibited marriages, it will be a valuable thing now to elucidate the permanent prohibited degrees of marriage in Islam which will also apply on Al-Kitabiyyah. Allah (S.W.T.) has expressed the permanently prohibited degrees of marriage in the following verse:
Prohibited to you (for marriage) are:- your
mothers, daughters, sisters; father's sisters,
mother's sisters, brother's daughters, sister's
daughters; foster-mothers, (who gave your suck),
foster-sisters; your wive's mothers, your step-
daughters under your guardianship, born of your
144 A1-Sabiq, AI-Sayyid, Fiqh A1-Sunnah,p.285, Dar A1-Fikr (1978), Beirut, Lebanon. 120
wives to whom ye have gone in,- no prohibition if
ye have not gone in;- (those who have been) wives 145 of your sons proceeding from your loins.
From the above verse, we understand that a Muslim should not marry:
His mother
His step mother(s)
His grand mothers (Grand mothers include father's and
mother's mothers howsoever high)
His daughter(s): (Daughters include the grand daughters i.e.
sons or daughters howsoever low)
His sister(s); (including Full, or consanguine and uterine,
sisters)
His father's sister(s): including the grand father's
sister(s)
His mother's sisters: including the grand mother's sister(s)
His brother's daughter(s)
His foster mother l0.His foster mother's sister(s)
11.His sister's daughter(s)
12.His foster sister
145 Qur'an 4:23 121
13.His wife's mother whether the she is a Muslim or a
Kitabiyyah.
14.His step daughter: (such a daughter should have been born to /11 his wife whom he has consumated his relationship. If the ^ marriage was not consilated there is no prohibition)
15.His son's wife: (this will not include wives of persons whom 146 one treats as one's adopted)
3.5 Marriage of a Muslim woman by the People of the
Book
It is utterly prohibited for a Muslim woman to marry a non-
Muslim man, regardless of whether he belongs to the People of the Book or not. Allah (S.W.T.) says:
...And do not marry (your girls) to unbelievers
until they believe: a man slave who believes is
(khairun) better than an unbeliever eventhough he
allure you. Unbelievers do (but) beckon you to the
fire. But Allgh beckons by his grace to the Garden
(of Bliss) and forgiveness. And make His Signs
146 Ibn Kathir, Muhammad ibn Ismail AI-Dimashqi, Tafsir A! - Qur'an Al- 'A zim, Von p.469-472 122
clear to mankind: that they may receive
admonition."'
This verse is a clear text which prohibit a Muslim woman to marry an unbeliever whether he is an Arab idolator or not, and whether the Idolator is of the People of the Book or not.
Through this text, /s/dm forbade what was happening before its revelation, whereby Muslims would marry the unbelieving women and Unbelievers would marry the believing women. Therefore, a man from the People of the Book, though he believes in Taurah
(the Gospel) as the book of Prophet Musa (may peace be upon him), or in Injil (the Bible) as the book of Prophet qsa (may peace be upon him), he is not allowed to marry a Muslim woman.
Allah has also said concerning the immigrant Muslim women:
0 ye who believe! When there come to you believing
women refugees, examine (and test) them: Allah
knows best as to their faith: if you ascertain that
they are Believers, then send them not back to the
Unbelievers. They are not lawful (wives) for the
Unbelievers, nor are the (Unbelievers) lawful
(husbands) for them:"
147 Qur'an 2:221 148 Qur'an 60:10 123
It is so because men are protectors and maintainers of women.
Being the heads of the families, the women are supposed to obey them if what they ask them to do is not against Allah's injunctions, because obedience is first to Allah. Now, when a
Muslim woman is married to the Unbeliever, she will be under his guardianship whereby she will be obliged to obey him even when she is asked to do something against Allah's injunctions .
This sovereignity of the Unbeliever over a believing woman is prohibited in Islam as Allah (S.W.T.) says:
...And never will All8h grant to the Unbelievers a
way (to triumph) over the Believers. 149
In this verse Allah (S.W.T.) has stated that, it is unlawful for a Muslim to be under the guardianship of a non-believer.
To other people it sounds unfair when Islam allows a Muslim man to marry a woman of the Book on one hand, while on the other it forbids a Muslim woman to be married by People of the Book.
`Abdullah a Syrian scholar, wrote a book which he named 'Aina Al-Khata' (Where is the mistake?). In this book,
149 Qur'an 4:141 124 he has said that all those three verses which many scholars have brought to support their view to prohibit a Muslim woman from marrying the Unbelieving men are not true. All the traditions brought by Jurists majority on this issue are unknown and 'Ahadls° which are not suitable to be evidences on the subject. He further continued to say that the word Mushrik
(polytheist) in one of those verses is special for Arab polytheists. Other polytheists are not included in this rule.
The word Khairun (better) means preference and it does not give any rule on this matter. So to him a believer is better than a non-believer but this goodness in a believer is also found in a non-believer. Therefore, there is no harm if someone marries a non-believer because the good things which someone can find in a believer is also found in a non-believer, except, that which is in a believer is far much better than that of a non- believer. isi
Al-'Alaili's logic on this matter is nothing but a confusion.
There is no wisdom when Allah prohibits Muslims to marry Arab polytheists on one hand and allows them to marry non-Arab polytheists on the other. Because there is no difference among
150 It is that category of 'Ahddith whereby there is only one transimitor.
151 Khalid, klasan, AI-Zuwdj bighayr Al-Muslimin, First Edition, Maktabat Al-Thaqafah, Makkah Al-Mukarramah, Kingdom of Saudi Arabia, p.126. 125 the Polytheists and their treatment does not differ from one to the other. If we take his logic on the word Khairun (better), it will lead us to a wrong direction. Thus, there will be no difference between Kufr (disbelieving) and iman (faith), Tauhid
(oneness of Allah) and Shirk (Polytheism), performing Saiat
(prayers) and leaving it, knowledge and ignorance, truth and false etc. There is none from the learned people who said this, except a group of Greek Philosophers who said that a good thing is what is good according to someone's mind and the truth is that which is true according to someone's thinking. This logic muddled the people's mind and thoughts in Greece, till Socrates came with his wisdom and rescued them from their stupid thoughts which confounded them. Verily, the word Khairun does not give any rule on the subject but the verse,
believing slave is better than a Polytheist..."
was brought as an elaboration to the already mentioned law on the subject and thus, a Muslim woman is not allowed to marry a
Polytheist. 152
152 Khalid, Hasan, Al-zuwcy bighair Al-Mushmin, p.124-132, First Edition 1407A.H.\1987A.D., Maktabat Al-Thacififah, Makkah A1-Mukarramah, Kingdom of Saudi Arabia. 126
Many people, especially at this time whereby speeches of equal rights has reached at its boiling point, would say that there is no justice in Islam when a Muslim man is permitted to marry a woman of the Book while a Muslim woman is not allowed. There are many sound reasons for this difference. The man is the head of the household, the one who maintains the family, and he is responsible for his wife. And while Islam guarantees freedom of belief and practice to the Christian or Jewish wife of a
Muslim, safeguarding her rights according to her own faith, other religions, such as Judaism and Christianity, do not guarantee the wife of a different faith freedom of belief and practice nor do they protect her rights. Since this is the case, how can Islam take chances on the future of its women by giving them into the hands of people who neither respect and honor their religion nor are concerned to protect and safeguard their rights? 153
A marriage between a man and a woman of different faiths can be based only on the husband's respect for his wife's beliefs; otherwise a good relationship will never exist between them.
Now, the Muslim believes that both Judaism and Christianity
153 Al-Qard awl, Yilsu The Lawful and the Prohibited in Islam, p.184-185. 127
originated in divine revelation, though they (Christians and
Jews) interpolated some of the things. He also believes that
Allah (S.W.T.) revealed the Taurah to Moses and the Injil to
Jesus (may peace be upon them), and that both Mils& and %is&
(peace be upon them) were among the Prophets of Allah who were
distinguished by their steadfast determination. Accordingly,
the Christian or Jewish wife of a Muslim lives under the
protection of a man who respects the basic tenets of her faith,
her scripture, and her prophets, while on the contrary the Jew
and Christian does not recognise or believe in the divine
origin of Islam, its Book, or its Prophet (peace be upon him).
How then could a Muslim woman live with such a man, while her
religion requires of her observance of certain worships, duties
and obligations, as well as certain prohibitions. It would then be imposible for the Muslim woman to retain her respect for her beliefs as well as to practice her religion properly if she were opposed in this regard by the master of the house at every
step.
It will be realised from this that Islam is consistent with itself in prohibiting the Muslim man to marry a Mushrik
(Polytheist) woman, for since Islam is absolutely opposed to 128 shirk (polytheism), it would obviously be imposible for two such people to live together in harmony, peace and love.
Though the position of Islam on the above issue is clear that no Muslim woman should be wedded with a non-Muslim, there is a great number of Muslim women getting married to a non-Muslims.
This is causing a lot of problems to the Muslim community more especially to the sisters who wish to maintain their Islamic faith. Some of the problems are as follows:
1. The Muslim woman is in most cases denied of her right to
dress Islamically since such dressing does not please the
husband who does not respect her religion. This has happened
and is happening in many such marriages. Some of the
incidents which has happened are as follows:
a) A muslim woman from Kadewere area in Chiradzulu
district married a Christian man from Bangula
township in Nsanje district. They agreed on their
marriage contract that everyone will be following
his\her religion. But the problem arised when the
woman used to wear Islamic dress every time she
went out of their house. This did not please the
husband and he kept quite for two months. One day 129
they were invited to his friend's house for
supper. She did wear as usual and when she came
out of her bedroom the husband told her that he
can not go with her if she had dressed in that
way. From that day they did not have a happy life
in their family because the wife was forced to go
out without an Islamic dress. This thing did not
please the wife and preferred a separation between
them. After a year of their marriage they
divorced. 1"
b) My classmate at Mpondas Primary School in Mangochi
district who graduated at the University of Malawi
in 1995 married a Muslim woman. Being a devoted
Christian he wanted his family to be a Christian
one while bearing in mind their agreement on their
marriage contract day that everyone would be
following his\her religion. He deliberately did
that for a wife to embrace Christianity. When he
knew that the wife had a strong faith on her
religion, he started forcing her to do things
which were against the Islamic rules. This brought
154 Interview with Salim Husein in Thomas area in Chiradzulu district on 24 th July, 1996 130
problems in their house for love and peace did not
exist any more. After two years the husband
divorced her. 155
2. She might not be able to fulfil other isidmic obligations
such as fasting as the husband may insist to meet her
during day time. No wonder that such things has happened
in many families. Below are some of them:
A muslim woman was married to a Christian man in
Nkhata-Bay District. He used to deny the wife to
perform her religious obligations after an
agreement with him not to interfere in her
religious affairs. Due to the husband's behaviour
towards her religious affairs, they could not stay
in harmony and peace. After a short period, their
marriage bond broke. 156
Mr. Chithyokola of Mzuzu who was a Christian
married a Muslim woman in 1984. They stayed
peacefully till 1991 when problems started to
arise in their family. The wife was a devoted
person to her religious obligations. She observed
155 Interview with the woman herself in Mpondas area in Mangochi district on 4 th July, 1996 156 Interview with Sh. 'Abdul-Karim Salim of Chintheche in Nkhata-Bay on 13 th July, 1996. 131
her five times prayers regularly in the near
Mosque. She was unable to pray in her house for it
was not clean. The husband was a drankurd always
who could vomit at any place in the house. For
this reason and many other, the wife did not like
to perform her prayers in her house. Instead she
always went to the nearby Mosque. This did not
please the husband and brought problems in the
house. He tried to deny her to go the Mosque. The
wife was not happy with this and decided to end
their marriage. 157
c) A Muslim woman was beaten by her Christian husband
at Namitete in Mchinji District. She was a devoted
Muslim lady who was appointed as a chairlady of
Muslim women organisation in her area. She used to
go to Seminars organised by a Muslim Organisation
in the area. He did not like hiS" wife to
participate in those seminars. One day she came
very late and was brought back to her house by one
of the members of the Organisation of the District
together with four other women. He asked her why
she had came late that day. She explained to her
157 Interview with the woman in Mzuzu on 12 th August, 1996 132
that being a chairlady, it was not easy for her to
leave as early as possible for she had other
important things to discuss with the members of
the Organisation from different areas for the
improvement of their organisation. He could not
accept this and accused her wife of doing immoral
acts during those seminars. He then forbade her
wife to go to those meetings any more. The wife
told him that she can not accept that because it
was her religious right. Hearing this, he was so
furious that he hit her wife till she fainted. She
was taken to the hospital by the neighbours who
heard the sound of her cry and came to the scene-
When she came from the hospital after spending few
days, she told him that she can not stay with him
anymore. Their marriage bond broke and she left
with one of her three children .158
3. She is liable to accompany the husband to places which
are Islamically prohibited such as Night Clubs or else her
house might become one. Below are some of the cases whereby
Muslim women have been forced by their Christian husbands to
158 Interview with Abbadi of Namitete in Mchinji District on 25 th August, 1996. 133 accompany them to Liquor drinking places and some of the houses of these Muslim women have turned to be Liquor drinking complex:
a) One of our Muslim sisters in Mpondas area in
Mangochi District was married by a Christian man
from Ntakataka area in Dedza District. This man
used to go to Night Clubs to drink beer during
weekends. One day his friend came to pick him up
to go to one of the Bars of the area. He told his
wife that he can not go without her company. Being
a Muslim, she refused to go with him to that
prohibited areas in Islam. The husband forced her
to go to that place in a tricky way. He told her
that if he goes alone, he might be tempted by
satan and pick up any other lady in the bar, the
thing which he did not like. Hearing this, the
wife did not hesitate to accompany him to these
places whenever he wanted to. But the wife did not
feel comfortable while spending hours at these
places. Later on she was forced by her religious
status not to accompany him to these places. The
husband then told her that she had a right to
leave his house if she did not like to accompany 134
him to Night Clubs. That was the end of their
marriage for they did not live together any
more. 159
b) A Muslim woman was married to a Christian man
in Bvumbwe area in Thyolo District. They lived in
Blantyre for the husband was working as an
accountant of a certain company in the City. They
lived happily till last year (1996) when the
husband became addicted to alcohol. He could not
stay without drinking since he was told that if he
abstain from alcohol drinking he will die. It
became so difficult for him to go to taverns
everyday to drink when he knocked off from his
work. He decided to keep beer in his house though
he knew that the wife will not be happy with that.
The situation became worse for the husband started
inviting friends to have beer with him in the
house. It completely turned in to a Night Club for
they could not sleep early. Some of his friends
brought a big stereo so that they can listen to
music and dance as they do in bars and tarvens.
rd 159 Interview with Taha Hasan at Mpondas in Mangochi District on 16th 3 January 1997. 135
The wife could not cope with this life and left
the house without even saying bye to her husband.
Suprisingly the husband never followed the wife to
find out why she just left him. Unfortunately he
passed away after few months from the day she had 160 left his house.
c) A Muslim lady from Mangochi district became a
bar girl because of being married to a Christian
man. This man was doing his business between
Blantyre and Mangochi. He was buying fish in
Mangochi and sell them in Blantyre. Later on he
became bankrupt for it was hard to get fish in
Mangochi for a certain period. After getting some
money from his debtors he thought of venturing
into another business other than the one he became
bankrupted with. He opened a bar after he was
satisfied with what his best friends told him. He
hoped that it would bear more profit for being
unseasonal business. He kept his wife most of the
time in the bar as a . sales lady. That was after
she had tried to refuse to do so but failed for
160 Interview with Sh. Sitleh in Bvumbwe area in Thyolo District on 14 th January 1996 136
the husband told her that other ladies who were
selling there were not trustworth. After few years
the man passed away and the wife had no other
means to earn her living except through the bar.
It was unfortunate that she was used to that
prohibited business in Islam and never thought of
closing it and open another type of business to
support her children. The children lost guidance
and they were and are not brought up well since
most of the time they help the mother selling
liquor. 161
4. Children of parents of different faiths grew up with minds
of no God-fearing as they notice conflicts of beliefs from
their parents. Below are some cases in which conflicts of
beliefs of the parents have caused many big problems in
their children's faith:
a) In the last case which I have just discussed I
have mentioned how the children of that family
grew up with minds of no God-fearing. Their minds
were filled up with all thoughts of how to earn
161 Interview with Sh. Ah mad Mwanyali in Mangochi District on 27 th December, 1996 137
through liquor. They did not know the Church or
the Mosque. It was so because the children did not
care about their parent's religion for they used
to quarrel about their faiths. They opened a bar
which kept them away from pondering about anything
concerning religion. Their children did also not
think of religion for their minds were only
concentrating on beer and how to make profit from 162 beer selling.
b) A Muslim lady in Jalasi area in Mangochi district
was married by a Christian. Some ignorant people
gave her a wrong juristic verdict that a Muslim
woman is allowed to be married by a non-Muslim.
Taking this as a right action in Islam she got
married to a Christian man from Machinga District.
They have five children who does not follow any
religion today. Some of them are robbers who ended
up in prison in Zomba in February, 1996. Some of
them are just wandering in different towns doing
whatever they like without caring whether it harms
them and other people or not. It is because they
162 Ibid 138
grew up with minds of no God-fearing. After their
marriage bond had broken, the mother tried to
guide her children to the religion of Islam so
that they may change their behaviour.
Unfortunately they refused to follow any religion
and told their mother that it would be unfair to
follow their mother's religion while their father
was under a religion different from their
mother's. They preferred then not to follow any
religion. They even threatened to beat their
mother if she continued to ask them to follow any
religion. When she tried again to talk to them
about following any religion of their parents so
that they may change their behaviour they once
again refused and beat her. These children did all
the wrong things because of the bad environment
they lived in with their parents. The environment
which did not care about the future of the
children spiritually. 163
c) A Muslim woman in Lilongwe city was married by a
Christian. Their marriage lasted 16 years. They
163 Interview with Sharif in Mangochi District on 28 Ih December, 1996 139
had six children and all of them followed
different faiths. One day they fought against one
of them who did not follow any religion and grew
up with the minds of no God-fearing as he insulted
the religion of one of them. They fought till one
of them was injured for the other children used
knives in their fight. They spent few weeks at
1 6 4 Kamuzu Central Hospital in Lilongwe city.
5. She is liable to denounce her faith as the husband holds the
upper hand. There are many cases whereby Muslim women have
denounced their faith because of their husbands. Some of the
examples of such incidents are listed below:
a) A Muslim woman from Liwonde Township in
Machinga District was married by a Christian. They
lived together for a period of time and had three
children. The husband then started complaining
that he could not feel happy when going to the
church alone while his friends went with their
wives. He said that he preferred to stay alone
than being married and then go to Church alone.
The wife told him that he could have thought of
164 Interview with Salama Maunde at Chitipi area in Lilongwe on VAugust, 1996 140
that before getting married. She further, continued
to tell him that it was impossible for her to go
to Church with him and that it would not happen if
he had minds of converting her to Christianity in
that way. Hearing this, the husband told her to
either choose the family or her religion. Being a
poor woman she thought of her children and then
accepted what the husband wanted. After few days
he told her that no Christianity no family. She
was then forced to denounce her faith. 165
b) One of the respected Sheikh's daughter in
Malawi denounced her faith because of her
relationship with a Christian man who promised to
marry her. At this time they are arranging their
wedding to be conducted in one of the Zomba
catholic churches. This thing is troubling the
minds of the father who has tried here and there
to convince her daughter the important of her
religion. He also advised and warned her of the
bad effects of their marriage on the future of
their children but she does not want to accept the
165 Interview with Yusufu Mbawe in Liwonde Township in Machinga District on 16 thAugust, 1996 141
advices of her parents. Now she is a Christian and
goes to church. 166
6. She might knowingly or unknowingly be preparing and eating
prohibited food in the house. It is not strange to
experience such incidents in those families. Below are some
of the cases whereby the Muslim wife has been preparing
unlawful foods in her house:
a) A Muslim woman got married to a Christian man
in 1994 at Mpondas Catholic Church in Mangochi
District. She was convinced with what her partner
had told her that she will remain as a Muslim. One
day she was disappointed after being told that she
had consumed pig flesh in her house unknowingly.
She was unhappy with this and told her husband
that if that thing continues, she will prefer to
break up their family. This was just a joke to the
husband as he used to bring food which was
prohibited by the religion of the wife. When she
discovered it, she just packed her properties and
166 Interview with Sfileh Kalutendeje at Chinamwali Township in Zomba District on 4thJanuary,1997 142
went home. They never talked to each other again
as that was the end of their family. 167
f) Our neighbour, a Muslim lady in Lilongwe District
where I stayed during my commitment with Africa
Muslim Agency as Da`wah and Education Coordinator
was forced to cook pig flesh in her house for the
husband liked to eat it. She was not glad with
this since Islam forbid it. To her it was like
helping someone to be rebellious to the
commandments of Allah. But being a wife of a
Christian person who used to eat this type of
flesh, she could not do otherwise though she tried
to advise her husband not to. But the husband
could not accept and think of her religious
status. So she knowingly prepared these
prohibited foods in her house. 168
167 Interview with the woman at Mpondas area in Mangochi District on 27 thAugust, 1996 168 Interview with the woman in Chilinde Township in Lilongwe city on 24th October, 1995 " 143
3.6 Position of Islgm when a Muslim woman has been married by a Christian inspite of the Qur'anic
and Hadith texuals which forbid it.
lAllamah Shams Al-din Al-Sarakhsi says, if a non-muslim marries a muslim woman, the law has to separate between them because of the words of Allah,
"...And do not marry (your girls) to unbelievers
till they believe" 169
and the saying of the Prophet (peace be upon him) ,
Islam has the superiority that it can not be under
any other religious rule. 170
Through these texts, the law was established that a Muslim woman is not lawful for a non-believer. If she happens to accept this type of marriage while knowing its prohibition in
Islam, but she has been influenced and conquered by her friends
169 Qur'an 2:221
170 Al-San'ani, Muhammad ibn Ismail (d.1182A.H.), Subl sharh Bulugh Al-Mardmi li Ahmad ibn 'Ali ibn Muhammad ibn liajar (d.852A.H.), Fourth Edition 1965A.D/1379A.H, Maktabat Mustafa Al-Babi Mal* Cairo, Egypt, vol.III p.234-235. 144 and did not restrain herself from her lower desires, then the
Qadi (Judge) has to punish her. This punishment is called
Talzir. 171 The Qadi (Judge), in this punishment, is allowed discretion both to the form in which such punishment is to be inflicted and its measure. This kind of punishment by discretion has been provided in special consideration of various factors affecting social change in human civilization and which vary on the basis of variations in the method of commission or the kind of criminal conduct indicated under the law.
So this woman who has violated the laws of Allah by being influenced with her desires to marry a non-Muslim, has to be punished through this way in /s/am because her act is against the injunctions of Allah (S.W.T.). If she happens to do that with an intention to make lawful things which Allah has forbidden while she knows its prohibition in the Qur'an and the sayings of the Prophet (peace be upon him), she is supposed to be reminded about the truth and she has to repent for that sin
171 Ta zir is an arabic word which literally means disgracing the criminal for his shameful criminal act. In Islamic Law, it is a displinary punishment for a crime for which no specific Hadd is prescribed nor any form of expiation. Ta zir form discretionary penalties inflicted by the judge himself, either for an offence whose punishment is not determined, or for prejudice done to one's neighbour. The punishment can take the form of lashes, imprisonment, fine, warning etc. 145 which she has committed. If she refuses, then she is a ranegade and the laws of apostaiy in Islam has to be applied on this woman. If she returns to the truth and repent to Allah, then only ta`zir will be applied on her. 172
This is how a Muslim woman married to a Christian or a Jewish has to be treated. This treatment is only acceptable in the
Muslim countries which follows Shari`ah as the law of their countries. But in countries like Malawi which is a non-Muslim country and other countries which do not follow Islamic rules as their law, it is essential for Muslims of these countries to educate their children especially girls how Islam looks at this undesirable marriages which causes a lot of problems in their societies. Through the teachings of Islam the girls will grow up with true teachings of Islam which will not mislead them to practice what Allah has forbidden and be away of what He has commanded his people to do.
172 Al-Sarakhsi, AI-Mabsut, Vol.V p.45. CHAPTER FOUR:
Marriage with. the People of the book in the early fUmmah
a)Marriage with the People of the Book by the Prophet
Muhammad (S.A.W).
b)Marriage with the People of the Book by the
Sahabah (R.A.).
c)Marriage with the People of the Book by the Tabiliin (R.A). 148
4. Marriage with the People of the Book in the early
Ohmmb
In the early period of Islam, Muslims did practice this type of marriage. Though there are different opinions of the historians about the marriage of the Prophet (S.A.W.) with Mariyah Al-
Qibtiyyah, it is certain that some of his Companions and their followers did marry Christian and Jewess women.
4.1 Marriage with the People of the book by the
Prophet (S.A.W)
After the treaty of Hudaybiyyah in the seventh year of Hijrah
(7 A.H.), when the Holy Prophet(S.A.W.) had some peace on the
Makkan front, he sent letters and emissaries to a number of kings and chiefs offering them the religion of Allah and inviting them to accept Islam. Among them was Muclawgis, the
Coptic Christian king or chief of Egypt. A letter to the
Egyptian chief was sent through one of the Holy Prophet's companion, Hatib ibn Ealta'a. Muclawcais, received the emissary and the letter warmly and with due respect. He talked with the emissary politely and placed the letter in an ivory box in the 149
custody of his maid-servant. ' The Prophet Muhammad's letter
read as follows:
"From Muhammad Servant of Allah and His Prophet,
To Muclawqas, Vicegerent of Egypt.
Peace be on him who has taken the right course. I invite you to
accept Islam. Therefore, if you want security, accept Islam. If
you accept Islam, Allah, the Sublime, shall reward you doubly.
But if you refuse to do so, responsibility for the
transgression of the entire nation shall be yours.
O People of the Book! Leaving aside all matters of
difference and dispute, agree on a matter which is
equally consistent between you and us and it is
that we should not worship anyone except Allah and
that we should neither associate anyone with Him,
nor make anyone else as our God. 2
Ibn Sed, vol.3, p.17. Also see Mandi, Riz,qullah Ah mad, Al-Sirah AI-Nabcrwiyyah fi claw Al-Masadi Al- 'A eshyyah, Matba'at Markaz Al-Malik Faisal lil-Buhlithi al-Islamiyyah, First Edition 1992, pg.520, 2 Qur'an 3:64. Ibn Al-Qayyim mentioned this verse in this letter in his book Zad al-Ma `ad vo1.3 p.61. 150
If you refuse it, you must know that we, in all circumstances,
believe in Oneness of Ai/ah." 3
Though Muclawciis did not accept Islam, he sent a courteous reply
to the Holy Prophet (S.A.W.) with a number of presents which
included:
Mariah and her sister Sirin, daughter of Shimun (Simon).
His own donkey which was named Yafoor.
His own mule of a rare species. This mule was of white colour
and it had no parallel in the whole of Arabia.
Some horses, camels and other pet animals.
Some gold, pieces of cloth and honey.
The reply of the Egyptian King to the Prophet's letter was as
follows:
"To Muhammad ibn 'Abdullah from Muclawcias, the chief of Qibt.
Peace to you. I have read your letter and have noted the
contents. I knew this much that a Prophet was to come. But I had expected him to appear in Syria. I have extended an honourable welcome to your messenger and am sending two girls
3 Al-Qurashiyy, Sultan Ahmed, Letters of the Holy Prophet Muhammad ( S.A.W), Siddiq-e-Akbar Academy, Lahore/Rawalpindi, Pakistan, p.74. 151 who are highly respected among the Qibtis (Egyptians) and I offer as a present some cloth and a mule to ride on." 4
The Egyptian King, in this reply, has stated that the two girls came from a respectable coptic family and deserved better treatment. As a result of the good teachings by Hazrat Hatib, the emissary of the Holy Porphet (S.A.W.), the two girls embraced Islam, before they reached Madinah.
Did the Prophet (S.A.W.) marry her?
Historians have differed if the Prophet Muhammad (Peace and
Blessings of Allah be upon him) had married Mariyah Al-
Qibtiyyah or kept her as a maid. lAllamah Shibli Nu'man is of the opinion that the Prophet Muhammad (Peace and Blessings of
Allah be upon him) married Mariyah Al-Qibtiyyah and the other girl, Sirin, was married by Hassan ibn Thabit (May Allah be pleased with him). These two girls, Mariyah and Sirin were real sisters, and through the teachings of Hatib ibn Abi Balta'ah, who had been sent by the Prophet Muhammad (Peace and Blessings
4 Alleinzah Shibli Nieman, Sirat-un-Nabi, Kazi Publications, First Edition1996, Lahore, Pakistan, Vol.2 p153. 152
of Allah be upon him) as a messenger to Potiphar of Egypt, both
had embraced Islam before they reached Madinah. Shibli Nu'man,
the Muslim historian, has further clarified that what one has
to note here is that these two ladies (Maria and Sirin) were
not slave girls and that they had already accepted Islam.
Though many historians have declared that Mariyah Al-Qibtiyyah
and Sirin were slave girls, we should still conclude that
Mariyah Al-Qibtiyyah entered the Prophet Muhammad's house-hold
as a duly wedded wife, and not as a slave girl. This is because
of the words of the Potiphar of Egypt in his reply to Prophet
Muhammad's letter that " and am sending two girls who are
highly respected among the Qibtis (Egyptians) ..." 5 which could
not be applied to slave girls. 6
As already stated some historians have said that Mariyah Al-
Qibtiyyah was Jariyah (slave girl) of the Prophet Muhammad
(Peace and Blessings of Allah be upon him), as a present, from
the Coptic King of Egypt Muclawqas, since it was a custom for
Kings and chiefs to sent slave girls as gifts to their
counterparts. The Prophet (Peace and Blessings be upon him) did
5 Nieman, Alleimah Shibli, Sirat Al-Nabiyy, Vol.2 p.153. 6 Ibid. 153
not marry her. 7 This view has been supported by the following
verses:
0 Prophet! Why holdest thou to be forbidden that
which Allah has made lawful to thee, thou seekest
to please thy consorts? But Allah is oft-forgiving,
most merciful. Allah has already ordained for you,
the expiation of your oaths (in some cases): and
Allah is your Protector, and Be is Full of
Knowledge and Wisdom. When the Prophet disclosed a
matter in confidence to one of his consorts, and
she then divulged it (to another), and Allah made
it known to him, he confirmed part thereof and
passed over a part. Then when he told her thereof,
she said, `I who told thee this?" Be said, "He told
me Who is the Knower, the Aware." 8
Ibn Khaldun , `Abdu al-Rahman, Tarikh ibn Khalchin, Dar al-Fikr, Second Edition 1408 A.H./1988A.D, Beirut, Lebanon vol.2 p.449-450. cf. Mansoorpuri, (Nil Muhammad Sulaiman Salman' , Rahmat-lil-Alamin (Mercy for the Worlds), Islamic Book Foundation, First Edition 1398 A.H/1978A.D, Lahore, Pakistan, Vol. p.155-156. cf. Safy al-Rahman, Al-Mubarkfilri, Al-Rahiq al-Makhttim, World Muslim League, Fifth Edition 1415A.H/1995A.D, Makkah, Kingdom of Saudi Arabia, p.395. cf. Abil Bala Siraj al-Din, Martin Lings, Muhammad (S.A. W) his life based on the earliest sources, Foundation for Tradition Studies and A .S .Noordeen, Second Edition, Kuala Lumpur, Malaysia, p.277. cf. Robinson, Neal, Christ In Islam and Christianity, First Edition 1991, State University of New York Press, New York, U.S.A. p.25. 8 Qur'an 66:1-3 154
The Muslim historians of the above mentioned view, that the
Prophet Muhammad (Peace and Blessings of Allah be upon him) did
not marry Mariyah Al-Qibtiyyah, say that one of the causes of
the revelation of the above verses which was reported by Ibn
`Abbas (R.A.) is that one day the mother of the believers,
Hafsah (R.A.), went to her father's house for a visit. While
she was there the Prophet Muhammad (S.A.W.) sent a message to
her Jariyah to come. He spent with her some hours in the house
of Ilafsah (R.A.) in her absence. When she arrived and found
the Prophet (S.A.W.) with her, she stayed outside waiting for
her leave. After she had left, Hafsah said to the Prophet
(S.A.W.) that I have seen the one who were with you in my house. You have done what you never did to one of your wives except me. Really, you have disappointed me. The Prophet
(S.A.W.) was affected with what Hafsah (R.A.) said to him. He then replied to her by saying that he will never do it again.
He swore by the name of Allah not to meet this Jariyah, Mariyah
Al-Qibtiyyah. He told Hafsah (R.A.) not to reveal this secret to any one. But she narrated the story to her best friend 155 amongst the wives of the Prophet (S.A.W.), 'A'ishah .(R.A.), by saying that: 'be happy that the Prophet (S.A.W.) has made his
Jariyah unlawful to him'. After she had revealed the secret,
Allah (S.W.T.) told his Prophet (S.A.W.) about this in those
9 verses.
So in the occasion of the revelation of the above verses, it shows that Mariyah Al-Qibtiyyah was a mere Jariyah and not a wife. Being a slave girl, the Prophet Muhammad (S.A.W.) lodged
Mariyah at a nearby house where Safiyyah had lived before her apartment adjoining the Mosque was built. There, he would visit her both by day and by night; but his wives became so openly jealous that she was unhappy, and then he lodged her in Upper
Madinah. 'A'ishah and the others were at first relieved, but they soon found that they gained nothing. They new well that the Prophet Muhammad (S.A.W.) was within his right which had been recognised from the time of Prophet Ibrahim (A.S.) and before. Moreover, the law revealed to Prophet Musa (A.S.) had
9 A1-Saban, Muhammad 'Ali, Safwat al-Tafcisir, vol.3 p.407-408. c.f. Imam `Abdu al-Rahman Jalal Al-Dur al-Manthar fi Al-Tafsir bil Ma'thar, Dar al-Fikr, First Edition 1403A.H /1983 A.D, vol.8:213-214. Al-Jassis, AbU Bala ibn 'Ali (d.370 A.H.), A hkam al-Qur 'an, vol.3-464. 156
corroborated and validated such rights, and the Qur'an itself
expressly allowed a master to take his bondmaid a concubine.'
Allah (S.W.T.):
Successful indeed are the believers. Who guard
their modesty, except with those joined to them in
the marriage bond, or (the captives) whom their
right hands possess, for (in their case) they are
free from blame. fl
The wives also knew that the Prophet Muhammad (S.A.W.) was
exceedingly sensitive that he realised their jealousy on
Mariyah Al-Qibtiyyah. But after she had given birth to the
Prophet's (S.A.W.) second son, she had risen in esteem and in
her position among the wives of the Holy Prophet (S.A.W.).
According to Ibn 'Abbas, the holy Prophet (S.A.W.) declared
Mariyah a free woman on the birth of his son whom he named
Ibrahim. On the seventh day of his birth the Holy Prophet
Muhammad (S.A.W.) performed his son's `Aqiclah, 12 by
10 Siraj Al-Din, Abilbalu- Martin Lings, Muhammad (S.A. W.) his life based on the earliest sources, A. S. Noordeen, First Edition 1983, Kuala Lumpur, Malaysia, p.277. " Qur'an 23:1&6
12 Agigah is an Arabic word which literally means hair of a new born. It is used as as a name of ceremony, frequently held on the seventh day after an infant's birth, which is 157
slaughtering a goat and shaving the head of the baby. He gave
silver equal in weight of the shaved hair of the newly born
baby in alms to the poor, and ordered the hair to be buried .
He then handed the baby over to Salmah (a freed maid of the
Holy Prophet Muhammad (S.A.W.) for nursing. She conveyed this
happy news to her husband, Abu Rafi', who came to the Holy
Prophet Muhammad (S.A.W.) and congratulated him. The Holy
Prophet Muhammad (S.A.W.) gave him a slave in reward.
Muhammad ibn 'Umar says that Ibrahim was born in Dhil Hajj 8
A.H. and 'Anas ibn Malik adds that when Ibrahim was born Angel
Jibril (A.S.) came to the Holy Prophet (S.A.W.) and conveyed
the happy tidings in these words: "Peace be upon you, the
father of Ibrahim". Anas ibn Malik further more says that the
Holy Prophet (S.A.W.) came out of his house in the morning and
said that a son was born to him the previous night, whom he had named him after his ancestor, the Prophet Ibrahim (A.S.).
Mariyah Al-Qibtiyyah was the second lady after Khadijah, to
regarded as "commendable" (Sunna) by the religious law.The usual procedure is to name the child, shave of its hair, and kill a victim; while it is also normal to weigh the hair and give not less than its equivalent in gold or silver as alms. see Al-Maqdasiyy, Baha'u ddin `Abdu Al-Rahman ibn Ibrahim, Al-'Uddat Sharh Al-Vmdah, p.214-215.
c.f; Ibn Dawiyyan, Ibrahim ibn Muhammad ibn Salim, Matz& fi Sharh Al-Datil, Vol] p.264. 158 have the honor of becoming the mother of the second son of the
Holy Prophet (S.A.W.). The Prophet Muhammad (S.A.W.) used to spend most of his time in the house of Mariyah Al-Qibtiyyah caressing and fondling with baby Ibrahim.'
Since Allah (S.W.T.) tests His dear ones, he tested His Prophet
Muhammad (S.A.W.) by taking his beloved son Ibrahim. He died in infancy and in his deep sorrow over the child's death the Holy
Prophet Muhammad (S.A.W.) said," The eyes weep and the heart grieves, but we say nothing that displeases Allah, and we are grieved over being separated from you, Ibrahim. He patiently bore this. The whole of Madinah city plunged in mourning. At this day (the day Ibrahim died) a solar eclipse happened. Some of the companions attributed the eclipse to Ibrahim's death, but the Holy Prophet Muhammad (S.A.W.) corrected them in a speech wherein he said:
13 Madani, S.M., The Family of the Holy Prophet, p.172-173. Also see Al-Nadwi, Abu Al-Hasan 'Ali, Muhammad Rasidulleih the Apostle of Mercy, Academy of Islamic Research and Publications, 2" d Edition 1982, Lucknow, India, p.408-409. 159
"The sun and the moon do not eclipse because of someone's death or life but they are two signs amongst the signs of Allah, so pray whenever you see them. ”14
Five years after the death of the beloved son of the Holy
Prophet (S.A.W.), Ibrahim, Mariyah Al-Qibtiyyah passed away.
She was burried in the grave yard of Jannat Al-Baq1'. She was much respected by the two Caliphs, Ababakr and 'Umar (May Allah be pleased with them) .1s
To conclude with, I personally agree with those historians who say that Mariya Al-Qibtiyyah was a mere slave girl of the
Prophet Muhammad (S.A.W). He did not marry her but she was taken as a concubine which was a gift of the Coptic King of
Egypt Muclawqas. This is so because if the Prophet had married her, historians would have narrated the whole story of their marriage as they did by elaborating fully the other marriages of the Holy Prophet (S.A.W) with his wives. But since we have nothing, it shows that the Holy Prophet (S.A.W) did not marry her and she was just his slave girl. However, even if the
14 Al-Bukhara, AI-Sahih, Kitab Al-Kusa Hadith No.165, Vol.2 p.95. 15 Madani, S.M., The Family of the Holy Prophet (S.A. W.), p.173. 160
Prophet Muhammad (S.A.W) had married Mariyah Al-Qibtiyyah, one may assume that she was not a Kitabiyyah since she had embraced
Islam on her way to Madinah through the teachings of tiatib ibn
Balta`ah (may Allah be pleased with him)
4.2 Marriage with the People of the Book by the
Satiabah
There were among the companions of the Prophet (S.A.W.) who married women of the book. Some of these companions who have been mentioned in the History of Islam are as follows:
4.2.1 IUTHMAN IBN `AFFIX
`Uthman ibn 'Affan, known as Abu 'Abdillah, was born in Makkah.
Dhu Al-Narain was an epithet of honor as he had married two daughters of the holy Prophet (S.A.W.) one after another. He belonged to the Bani Umayyad clan of the Quraysh and his ancestral line pedigree joins that of the Prophet (S.A.W.) in the fifth generation. The Barna Umayyads were only second to
Bani Hashims in political importance and were entrusted with the custody of National flag of the Quraysh before the advent of /s/am. 16
16 Ibn Kathir, Al-ljafiz Abu Al-Fida' Ismail, Al-Bidayah wa Al-Nihayah, 161
`Uthman after his early education, adopted his ancestral
occupation and was one of the leading businessmen of Arabia. He
was known for his honesty and integrity, plety and modesty
throughout Hijaz. He was an intimate friend of Abu Bakr Al-
Siddiq, the first Caliph of Islam. It was Aim"). Bakr, who was the
first man to carry the message of Islam to him. 'Uthman along
with Talbah ibn 'Ubaidullah, accepted Islam at the hands of
the Prophet (S.A.W.). He was much tortured by his uncle Hakim
for joining the new faith but he refused to renounce it, even
at the cost of his life.'
`Uthman migrated to Abyssinia along with other Muslims under
the order of the Prophet (S.A.W.). He was only second to Abu
Bakr in rendering financial assistance to the new faith. He
served Islam whole-heartedly even at the cost of his business.
He took active part in the inner councils of Islam. Later on he migrated to Madinah along with other Muslims, leaving his valuable properties behind. Madinah had then only one well of drinking water called Bir Ramah, which was owned by non-
17 Al-Suyilti, Jalal Al-Din `Abd Al-Rahman, History of the Caliphs (translated into English by Henry Sullivan Jarrett, Amsterdam Oriental Press 1970, Amsterdam, Nertherlands, p.153. 162
Muslims, who charged heavy water tax from the Muslims. The Holy
Prophet (S.A.W.) wanted some Muslims to purchase it. 'Uthman,
at once came forward and purchased it for thirty thousand
dirhams and made it a public property. Similarly, 'Uthman
purchased the land adjoining the Mosque of the Prophet (S.A.W.)
in Madinah, which could not accomodate a large number of
Muslims and undertook its extension at his own expense. 18
Except Badr, 'Uthman took part in all battles fought during the
life time of the Prophet (S.A.W.) for the defence of the new
faith. At the time of Badr he was asked by the Prophet (S.A.W.)
to look after his wife Ruclayyah, who was on death bed.
During the caliphate of Alma Bakr and 'Umar, he occupied the position of highest trust. He was a prominent member of the
inner council and his opinion was sought on all important matters of state. He was one of the two persons who were first
consulted by Alma Bakr on his death bed for nominating 'Umar as his successor.
18 Al-Suyiitil, Jalfil `Abd Al-Rahman, History of the Caliphs (translated into English by Henry Sullivan Jarrett, Amsterdam Oriental Press, 1970, Amsterdam, Nertherlands, p.155. 163
`Umar (R.A.), on his death bed, had nominated six persons, out of whom his succesor was to be selected. The four nominees withdrew their names, leaving lUthman and 'Ali (R.A.), as the contestants. The two consented to accept the verdict of 'Abd
Al-Rabman ibn 'Awf, who, on the third day, cast his vote in favour of 'Uthman who became the third Caliph of Islam.
Thereafter, the populace of Madinah vied with each other in taking the oath of allegiance on the hands of 'Uthman (R.A.). 19
The first six years of the reign of lUthman are noted for great territorial expansion of the Islamic Empire as well as achievements in other spheres of life. Only six months after the election of the third Caliph, the Persians rose in revolt against the authority of Islam. The ex-king of Persia,
Yazdajurid, who was in exile, was at the bottom of this upheaval and his agents were active throughout Persia. 'Uthman promptly handled the situation with a strong hand. He immediately despatched reinforcements which quelled the revolt and persued the insurgents beyond the Persian frontlers, thus annexing extra territories. By 30 A.H., the territories lying north and east of Persia, including Baikh, Turkistan, Hirah,
19 Ibn Kathir, Abu Al-Fida' A1-Bidayah wa Al-Niheryah, Dar Al-Kutub Al-`111miyyah, n.d., Beirut, Lebanon, Vol.V11 p. 151. 164
Kabul, Ghazni, Khurasan, TUs, Neshapur and Merv, fell before
the invincible arms of Islam and thus were incorporated in the
fast expanding Muslim Empire. Yazdujerid, who had fled for his
life, died in exile in 32 A.H. It led to the establishment of
perpetual peace in Persia. 2° This is one example of his many
achievements during his caliphate.
This third Caliph was among those companions of the holy
Prophet (S.A.W.) who married women of the Book. He married a
Christian woman by the name Na'ilah the daughter of Al-
Farafisah Al-Kalbiyyah. But through the good teachings of Islam
which she got from the pious Caliph, she embraced Islam. 21
4.2.2 SAID IBN 'ABI WAQQAS
His full name is Malik ibn 'Uhaib ibn 'Abd Manafi ibn Zuhrah
ibn Kilab, Abu Isbaq Al-Qurashi Al-Zuhri. He was one of those
ten people who were given glad tidings that their portion on
the day of Judgement is Paradise. When 'Umar knew that he was going to die he chose him to be one of those six great
companions of the Prophet (S.A.W.) out of whom his successor
20 Ahmed, Jamil, Hundred Great Muslims, Ferozsons Limited, 2nd Edition 1977, Lahore, Pakistan, p.41-42.
21 Al-Jassas, Ablibakr Ahmed ibn 'Ali Al-Razi, A hkam Al-Qur 'cin, vol.II p.325 165 was to be selected. The Prophet (S.A.W.) passed away while he was happy with these people. It is reported by Abil Ya'la that
`Abdullah ibn 'Umar said: One day we sat with the Prophet
(S.A.W.) in his house and then he said a man among the dwellers of Paradise will come in and enter through this door pointing to one of the doors of the house. All the companions who were sitting with him wished the man to be from his relatives. After few seconds Sa'd ibn Abi Waqqas came in through the same door which the Prophet (S.A.W.) had predicted that one of the
Paradise dwellers will enter through it. 22
He embraced Islam in the early period of Islam while he was seventeen years old. It is said that none embraced Islam on that day except Sa'd. When her mother heard he had embraced, she abstained from food and drinks for days. Sald told her: I swear before my Lord that even if you had hundred souls and started to come one after the other, I would not leave my religion. If you want you can eat and if you do not want you can stay without eating. Soon after this incident the revelation of Allah came whereby He said:
22 Ibn Kathh., Abu Al-Flafq Muhammad ibn Isma`il, A1-Bidfayah wa Al-Nihciyah, Dar Al-Kutub Al-`11miyyah, n.d., Beirut, Lebanon, Vol.8 p.75-78. 166
But if they strive to make thee join in worship
with Be things of which thou hast no knowledge,
obey them not; yet bear them company in this
life with justice (and consideration), and
follow the way of those who turn to me. 23
He was one of the most beloved companions of the Holy Prophet
(S.A.W.). It is reported by Al-Sha'bi that Jabir ibn 'Abdillah
(R.A.) said:- "We were with the Prophet (S.A.W.) and then Sa'd
(R.A.) came at the place. The Prophet (S.A.W.) said: "This is my uncle..." .24
Sa'd ibn 'Abi Waqqas, the trusted companion of the Prophet
(S.A.W.) and highly respected by Muslims was a famous warrior
and general who took leading part in the battles of Badr and
'Uhud and also in the campaigns that followed. When Muthanna who assumed command of Muslim forces at Al-Ijirah (Iraq) after the departure of Khalid ibn Al-Walid to Syria, asked for reinforcements in order to meet the threat of the ever
23 Qur'an 31:15
24 Al-Tirmidhi, Abu 'ha Muhammad ibn `isa ibn Saurah, A l-Sunan, Maktabat Mustafa Al-Babi Al-Halabi, Second Edition 1395A. H. \ 1975A.C., Cairo, Egypt, Hadith No.3752, Vol.V p.649. 167
increasing Persian holdes, the second Caliph of Islam himself
wanted to assume the command. A large force gathered at Madinah
and 'Umar wanted to march at their head. Great enthusiasm
prevailed there. But he was dissuaded by his companions, who
insisted that the central authority should remain in the
Capital. At last Sa'd ibn 'Abi Waqqas was selected to assume
the Chief command. The entire campaign in Iraq was planned by
the Caliph himself, who was daily informed of the developments
in the military situation. 25
Sa'd ib 'Abi Waqqas advanced with a force of twenty thousand
muslims. His army contained about 400 Companions of the Prophet
(S.A.W.) and their 700 sons. Sa'd advanced towards Kadessia,
where the formidable Persian forces under their famous General
Rustum were encamped and were harassing the neighbouring Muslim
dominions. Here, in the summer of 637 A.C., a memorable battle
was fought which was hotly contested, lasting for several days.
The Muslim soldiers foght like real heroes, and displayed great
feasts of bravery which unnerved and discomfited the enemy.
Illness prevented Sa'd from taking part in the battle personally, but a shrewd and skilful soldier as he was, very
25 Abmad, Jamils , Hundred Great Muslims, Ferozsons Ltd, 2" dEdition1977, Lahore, Pakistan, p.509-511. 168
ably he directed the whole operations from a house top,
situated at the side of the battle field.' This is one of the
examples which shows that Sa'd was a famous leader of many
battles whereby Muslims fought against the unbelievers.
This companion was among those who married Al-Kitabiyyah when
it was rare to find Muslims, as Jabir ibn 'Abdillah says after
being asked of his opinion on marriage with the People of the
Book: " we married with Sa'd at the time when Muslim Women were
not in abundance." 27
4.2.3 TALHAH IBN IUBAIDULLAH (R.A.)
The name of this companion has been mentioned as Talbah ibn
`Ubaidullah ibn 'Uthman ibn ibn Ka'b ibn Sa'd ibn Taym ibn
Murrah ibn Ka'b ibn ibn Lu'ayy ibn Fihr Al-Qurashiyy Al-Taymi.
He is known by the name Talbat Al-Khayr (Talbah the good) and
Talhat Al-Fayya0 (The exuberant Talbah) because he used to give most of his wealth in charity. He embraced Islam through the first Caliph Abu Bakr (R.A.). Nawfal ibn Khuwaylid used to
26 mid
27 Al-Sabath, Muhammad ibn 'Ali, Ram:, 'u Al-Bay:110 Tafsir Al-A hkeun, vol.I p.536. 169
punish them by tying them together with one rope and their
tribe of Bani1 Tamim used to hinder Nawfal from doing so. This
is the reason why Abil Bakr and Talhah were called the two
connected ones. Talhah was one of the emmigrant and the
Prophet (S.A.W.) fraternized between him and Abu Ayyub Al-
Ansari. He fought with the Prophet (S.A.W.) in his all battles
except one which is Badr. This battle occurredwhile he had left
for business in Syria. 28
Talhah ibn 'Ubaidullah married a jewess woman from Syria. 29He passed away in the month of Jumad Al-Akhirah, 36 A.H. in Basrah because of a wound which he was afflicted with on the day of
Jamal. He is the one whom the Prophet (S.A.W.) said:
"Any one who wants to see a martyr walking with his
legs then he can look at Talhah ibn 'Ubaidullah." 30
28 Ibn Kathir, Abu AI-Fida' Ismail Al-Dimashiqiyy, Al-Bideryah wa Dar Al- Kutub Al-`thniyyah, n.d., Beirut, Lebanon, vol.VII p.258-259.
29 Al-Jassas, Abilbalcr Abmad ibn 'Ali, A hkdm A I-Qur volll p.325 30 Ibn Kathir, Abu Al-Fida" Ismail AI-Dimashiqiyy, Al-Bideryah wa Dar Al- Kutub Al-`11miyyah, n.d., Beirut, Lebanon, vol.VII p.259. 170
4.3 Marriage with the People of the Book by the
Tabi`un (the followers of the Companions of the
Prophet (S.A.W.)
There are also among the Tabi'un who married women of the
People of the Book. Some of these followers of the Companions
of the Prophet (S.A.W.) are:
4.3.1 MUJAHID
His full name is Mujahid ibn Jubair Abu Al-Hajjaj Al-Qurashi
Al-Makhzami Al-Makki. He was one of the Makkan Qur'an
commentators and one of the special friends of 'Abdullah ibn
`Abbas. During his time there was none who was more
knowledgeable in Qur'an commentaries like him. It is said that
he was the only one whom people knew that he wanted to learned
for the sake of Allah. He died while making sajdah in the year
100 A.H. He was more than eighty years old. 31This man was
amongst those Tabilan who married a Kitabiyyah. 32
31 Ibn Kathir, Abu Al-Fida' Isma Al-Dimashiqiyy, Al-Bidayah wa Dar Al- Kutub Al-`11miyyah, n.d., Beirut, Lebanon, vol.DC p.2332-233.
32 Al-Suyilti, Al-Imam Jail Al-din `Abdu Al-Rahman, Al-Dur Al-Manthfir fi Al-TafsKr Ma'thzir, vol.III p.25 171
4.3.2 IIKRIMAH MAMA IBN 'ABBAS
`Ikrimah was one of those commentators and great scholars who
had moved to many places searching for knowledge. He narrated
'Ahadith from many Companions of the Holy Prophet (S.A.W.). It
is said that he even gave juridical verdict during the life
time of Ibn 'Abbas (R.A.). 'Ikrimah says: "I have gone around
the world searching for knowledge for forty years." 33 Knowing
that he was a good scholar, Ibn 'Abbas (R.A.) used to send him
to many places to give juridical verdicts. One day, Ibn 'Abbas
told him to go and give juridical verdicts. He (Ibn 'Abbas)
advised him that if a person asks him about his personal
affairs which concerns him he has to answer him. But if someone
asks him about things which does not concern him he should not
answer him. 'Ikrimah really relieved Ibn 'Abbas from one third
of his people's problems.
`Ikrimah died on the same day which a certain famous poet died.
When their janazah were brought out for prayers people said:
"Today the most learned Jurist and the most educated Poet have
died." 34
33 Ibn Kathir, Al-Flafiz Abu Al-Fida' Ismail , Al-Bidayah wa Al-Nihayah, Vol. IX p.254
34 Ibn Kathir, Al-Flafq Abu Al-Fida' Ismail , Al-Bidayah wa Al-Nihayah, Vol. IX p.255 172
`Ikrimah was among the followers of the Companions of the Holy
Prophet (S.A.W.) who married Al-Kitabiyyah during his life
time. 35
4.3.3 TAWUS
His full name is 'Abu 'Abd Al-Rahman Tawas ibn Kisan Al-Yaman
who was one of the great friends of Ibn 'Abbas. He was from
Persian empire from where he was sent with other Persians by
the Persian Empirer (Kisrah) to Yemen. Tawas was a pious,
educated and honest man. He used to give good advices to Muslim
leaders. It is reported that the leader of Muslims in the
Umayyad period, Sulyman ibn lAbd Al-Malick, went to Makkah for pilgrimage. When he reached Makkah he asked one of his workers,
Al-Hajib, to look for him a learned man whom he should ask
certain rules concerning pilgrimage. Before Al-kiajib left the place Tawas passed by the place where the leader was and Al-
Hajib got hold of him and told him that Al-'Amir (the leader) wanted to speak to him. Tawas tried to run away from the
35 Al-Sablmi, Muhammad ibn 'Ali, Rawl 'u Al-Bayern fi Tafsir 'Ayeit Al- 'A hkam, Vol.] p. 537. 173
'Amir's call and told Al-Majib to forgive him for he did not
want to see the Leader. But Al-Majib refused to let him go
without seeing the Leader. When Tawas stood before Sulyman
(the Leader) he said: Allah will definitely ask me about this
place I am standing now. He said then, 0! you leader of the
believers, in the hell fire there is a big rock which Allah has
kept deep down in the Jahannam to punish some people with. Do
you know for whom Allah has prepared this? He said no. Tawas
then said: It is for those Leaders who put in their cabinets people who do not fear Allah. It is also reported that one day
one of the leaders of the Umayyad caliphate was observing his pilgrimage duties around the Ka'bah. While making tami.f
(circumbulation) as one of his Hajj obligations, he saw a man of whom signs of piety appeared on his face. He then asked the man who was with him, namely Zuhri, to let him know who the man was. Zuhri said that the man was Tawas a learned person of that time as he accompanied some of the Companions of the
Prophet (S.A.W.). The Leader then told Zuhri to bring the man to him. When he came the Leader asked Tawas to tell him some of the sayings of the Prophet (S.A.W.) he had learnt from the 174
companions of the Prophet (S.A.W.). Tawas then said that he
was told by 'Abu Musa Al-iAshilari that the Prophet (S.A.W.)
said:
"The most contemptible and ignominious people in
the eyes of Allah are those who have been elected
to serve people but they are deceitful and
mendacious in their work." 36
Tawas died on his Fortieth pilgrimage at Muzdalifah in Makkah.
The Caliph Hisham ibn 'Abd Al-Malik led the prayer of his
Janazah in Makkah. He was burried there. 37
He was one of those followers of the Companions of the Prophet
(S.A.W.) who married women of the People of the Book. 38
4.3.4 SAliD IBN AL-MUSAYYAB
His full name is 'Abu Muhammad Al-Mudnif Sa'id ibn Al-Musayyab ibn Hasan ibn 'Abi Wahb 'A'idh ibn 'Imran ibn Makhzum Al-
Qurashi. Salid was best follower and leader of all followers of
36 Ibn Kathir, A1-1-3fifiz Abu Al-Fida' Ismail , A1-Bidayah wa Al-Nihayah, Vol.IX p. 247
37 Ibid , Vol.IX p.245
38 Doi, `Abd Al-Rahman I. , Shari'ah The Islamic Law, p.135 175
the Compnions of the Prophet (S.A.W.). He was born two years
before the Caliphate of 'Umar ibn Al-Khallab (R.A.). He was a
one-eyed man. He did not accept presents for he was an oil
merchant. It is said that he learned 'Ahadith from 'Umar, 'Abu
Hurairah, 'Ali, 'Uthman and others (may Allah be pleased with
them). After acquiring knowledge from different scholars, he
became a great Muhaddith (Narrator of Prophetic tradition) and
a Jurist. Sa'id says: "I used to travel for days and nights to
study only one prophetic tradition."" Al-Zuhri, a great Jurist
says: " I attended his lessons on seven Hajj occasions and I
did not think better of any other great scholar other than him. "40 Muhammad ibn 'Ishaq is reported to have said that
Makbal, one of the great narrators of the Prophetic traditions
said: "I have gone around the world searching for lu/m knowledge but I never met with a more well learned scholar than
Sa'id ibn Al-Masayyab. "41
He was a pious man of his time and a sincere person in his work. It is said that for fourty years no call of Salah
39 Ibn Kathir, A1-1-1fifq Al-Fida' Ismail , Al-Bidciyah wa Vol.IX p.105 40 Ibid 41 Ibid 176
(prayer) was made without Sa'id being in the Mosque at the time
of the call. He passed away in the year 44 A.H. at the age of 75. 42
This pious and great scholar was among the followers of the
Companions of the Holy Prophet (S.A.W.) who had married Al-
Kitabiyyah. 43
4.3.5 AL-HASAN AL-BASRi
Al-Hasan Al-Basri, who was known as 'Abu Said, was born
during the caliphate of lUmar ibn Al-Khattab (R.A.). He was one
of the greatest followers of the Companions of the Prophet
(S.A.W.). He was a pious and sincere man in his work. One of
the examples of his piousness is reported by Ibn 'Abi Al-Duniya
with regard to the occasion when Hamzat Al-'A'ma was taken to
Al-Hasan Al-Basri by his mother. She said: 0! Abe Sa'id, this
is my son and I have loved him to be with you so that he can benefit from your knowledge. Hamzat Al-'A'ma says: "I was
always accompanying him wherever he went. One day he said to
42 /bid
43 Al-Sabath, Muhammad ibn 'Ali, Rcrwa'i 'u Al-Bayan fl Tafsir 'Aycit Al- 'A hkcim, Vol.I p.537 177
me: '0! My son, try to cry while you are alone making your
prayer in day and night hours so that you might be forgiven by
your Lord and he will put you among the dwellers of
Paradise „44
This learned and pious man was among the followers of the
Companions of the Holy Prophet (S.A.W.) who married Al-
Kitabiyah. 45
Although there are examples of the pious Sahabah and their
followers (TabilOn) who married women of the People of the
Book, one has to take enough caution before contracting such marriages. The Sahabah had exemplary characters and their lives were full of righteousness and piety (Tagura). After marrying
such women who followed different religions and celebrated different festivals, they knew how to keep them under proper
control so that their children were not influenced by their mothers an aspect which many people who do contract this type marriage fail to do. There is not even a single example of any
44 Ibn Kathir, A1-1-1afiz Abu, Al-Fida" Ismail , Al-Bidayah wa Al-Nihayah, Vol.IX p.281
45 Al-Sabimi, Muhammad ibn Rawd'i'u AI-Bayern fr. Tafsir 'Ayeit Al-'A pkim, Vol.' p.537 178
son\daughter of the Sahabah (companion) or the Tabiltin
(followers of the Companions of the Holy Prophet (S.A.W.) who
ever transgressed from the limits of Allah or changed over to
their mother's religion as the situation is in similar marriages today. Therefore, marriage with women of the People
of the Book is generally discouraged and even prohibited if it
can lead to Kufr (disbelieving). That is why Allah (S.W.T.) at
the end of the verse which allows a Muslim man to marry women
of the People of the Book has concluded by saying:
"If any one rejects faith, fruitless is his work,
and in the Hereafter he will be in the ranks of
4 6 those who have lost (All spiritual good)".
So if this type of marriage makes someone to loose his faith in
Allah, then it will be prohibited for him to perform it because
in Islam anything which can spoil someone's faith is unlawful.
And as already stated in chapter three, it will be considered unlawful to marry kitabiyyah, in any given country, if there are a good number of Muslim women to get married with. Since
Muslim women can not marry the kitabi men, who will marry them
46 Qur,ail 5:5 179 in those circumstances? It is better then that Muslim men marry
Muslim women. CHAPTER FIVE:
GUIDELINES FOR TREATMENT OF
AL -KITABIYYAH
5.1 Position of Al-Kitabiyyah in Islam
5.2 Nafaclah (Maintenance)
5. 3 Divorce
5.4 Khul` (Divorce at the instance of the wife)
5.5 lIddah (Waiting period)
5.6 Li `an (Mutual Imprecation)
5.7 2ahgr (Injurious Assimilation)
5.8 fig' (Vow of Continence)
5.9 Inheritance 181
5.1 Position of Al-Kitgbiyyah in Islam
Though Islam permit a Muslim to marry chaste women from the
People of the Book as already stated, without committing
illegal sexual intercourse with them but through a permission
from their guardians or the lawful way. Islam has safeguarded
the freedom of faith and worship for the woman being a
Christia1 or a Jewish. It has kept well her marriage rights
and has preserved her personal honour and freedom. It has also
given her rights which are equal to those of a Muslim woman.
In this respect, there is no doubt that a Muslim believes, from
the beginning, that a Jewish woman is of a divine religion which has got a book called Taurah (Old Testament) revealed to
Prophet Moses (Peace be upon him). He also believes that a
Christian woman is of a divine religion with the Bible as a
Holy Book revealed to Prophet 'isa (Peace be upon him). As
such Al-Kitabiyyah (Jewish or Christian) stays under a shadow of a Muslim husband and in a house whereby the husband respects her religion. He provides her with a conducive and cool situation which she likes, a situation which makes her happy, safeguards her rights, and helps her to treat those around her with respect, trust and sincerity. This elaborates the reason and wisdom of trustful Islam for allowing a Muslim man to marry 182
Al-Kitabiyyah and guiding him to prepare a conducive
environment for her since she believes in the Almighty Allah,
Angels, Revealed books from Allah to Prophets (Peace be upon
them all), Resurrection Day, Countability of human deeds on the
day of Judgement, Punishment, Paradise and Hell. All these
things are basic principles in a good belief.
A Muslim therefore, comes forward to marry Al-Kitabiyyah while he is, in most cases, aware of her background. At least he is always comfortable of her good treatment towards him as he does not fear distress with her, nor treachery and disloyalty from her.
5.2 Al-Nafaqah: The Maintenance
Muslim law considers a marriage as the duties and obligations to be practised by the parties concerned. It also considers it as a civil contract. On marriage certain obligations are imposed on the parties and certain rights are vested in them.
The rights and obligations arising out of a marriage are mutual and reciprocal so that if either the husband or the wife fails to perform his or her duty or implied conditions of the contract of marriage, he or she shall no longer be entitled to 183
the enjoyment of the rights vested in him or her. One of the
rights of the wife is that her husband should support her while
she is under an obligation to look after the domestic comforts
of the husband and to make herself available to him. This
obligation of the wife makes it necessary that she should live
with the husband. Hence, if the husband fails to provide an
adequate amount of money for maintenance or lodging for the
wife, she can on her part lawfully refuse to live with him.
Similarly, if the wife refuses or fails to live with the
husband, the latter has the right to refuse to support her.
Muslim Jurists agreed that the husband has to provide all necessities of life to his wife whether the wife happens to be
a Muslim, a Jewish or a Christian, as long as their marriage is
lawful.' Their agreement is based on Qur'an, Sunnah, and
consensus of the opinion of the Muslim scholars. Allah (S.W.T.)
says in the Qur'an:
Al-Zuhayli, Dr. Wahbah, Al-Filth 'Adillatuh, vol.7,p.786; Al-Qurtubi, Muhammad ibn Ahmad ibn Muhammad ibn Ahmad ibn Rushd, Bidciyat Al-Mujtahid wa Niluiyat Al-Muqtasid, vol.II,p.53; Ibn Qudamah, Al-Mughni, vol.8, p.156; Al- Kisani, `Ala'u Al-Din Abu Bakr ibn Mas`fid (d.587A.H), Bade/ 'I' Al-Sanci'i', vol.4:15-16; Al-Khatib, Muhammad Al-Sharbini, Mughni Al-Muhtcij, vol.3,p.425-430. 184
Let the man of means spend according to his means:
and the man whose resources are restricted, let him
spend according to what Allah has given him. Allah
puts no burden on any person beyond what He has
given him. After a difficulty, Allah will soon
grant relief.2
In this verse Allah (S.W.T.) is explaining the amount of money,
the husband is supposed to spend on his wife and children as their maintenance. According to this verse the husband has to . give his wife and children the amount of money he can afford.
It will depend on his financial status. This is so, because, as a practical religion, Islamic Law does not impose burden on either party. They must act according to their means. If they act with honest integrity, Allah will provide a solution to the problem. 3 We also understand from this verse that Nafaqah
(Maintenance) is essential.
Nafaqah literally means what a person is supposed to spent on his family. In Islamic Law, Nafaqah (maintenance) is the right of one's wife and children to get food, clothing and a
2 Qur'an 65:7
3 AI-Sabi:1a Muhammad ibn 'Ali, Safwat Al-Tafcisir, vol.3, p.402. Also see Doi, `Abd Al-Rahman I., Shari ah The Islamic Law, p.207. 185
residence, some other essential services and medicine, even if
the wife happens to be a rich lady. 4 It also includes such
articles as are necessary according to the custom of a country
and particular class of people such as cosmetics, cleansing
soap, hair oil, articles of domestic use such as cooking
utensils, mats, carpets, blankets, furniture. 5 In most books on
Muslim jurisprudence, stress is laid on food, clothes and
residence while dealing with the question of maintenance. This
gives the impression that maintenance is restricted to only
these three items. But such is not the case and it would be
wrong to hold that maintenance consists only of the above. The
items considered to constitute life necessities must naturally differ from one country to another, from a certain society to another and it can change with the change of times. 6
Allah is clarifying the obligation of Nafagah in the following verse:
Al-tlaskafi, Ifeishiyat Rudd Al-Mu htcir li-ibn `Abidin `ala Al-Dur Al-Mukhtcir, Matbeat Mustafa Al-babi Al-Halabi, Cairo, Egypt, vol.2, p.886. Also see Al-Sabiq, Al-Sayyid, Fiqh Al-Sunnah, vol.7, p.85; Doi, `Abd Al-Rahman, Shari'ah The Islamic Law, p.204. 5 Ahmed K.N., The Muslim Law of Divorce, p.710 .
6 Ibn Rushd Al-Qurtubi, Muhammad ibn Ahmad ibn Muhammd ibn Ahmad (d.595A.H.), Bidciyat Al-Mujtahid wa Nih eqat Al-Muqtasid, Fifth Edition 1401A.11\1981A.D, Maktabat Mustafa Al-Babi Al-tlalabi, Cairo, Egypt, vol.II, p.54. 186
But he shall bear the cost of their food and
clothing on equitable terms. No soul shall have a
burden laid on it greater than it can bear.7
In another verse Allah says:
Let the women live in the same style as you live,
according to your means: annoy them not, so as to
restrict them. And if they are pregnant, then spend
(your substance) on them until they deliver their
burden. 8
The responsibility of maintenance of the husband is not only when she lives as a legal wife and towards his children by that wife, but it is essential to support her even during the wai t ing period after divorce. To maltreat the woman during this period is forbidden in Islam.
The Prophet Mubammad (S.A.W.) has assured the requisiteness of maintenance in the following traditions:
Qur'an 2:233 8 Qur'an 65:6 187
It is reported that the Prophet (S.A.W.) emphasized in his
sermon at the time of his last pilgrimage the maintenance of
the wives and said:
"Fear Allah while treating your women. You have
taken them into your houses through the word of
Allah and you have also made lawful sexual
relationship with them through the word of Allah.
0! People, it is true that you have certain rights
with regard to your women, but they also have
rights over you. If they abide your right then to
them belongs the right to be fed and clothed in
kindness. Do treat your women well and be kind to
them for they are your partners and committed
helpers. And it is your right that they do not make
friends with anyone whom you do not approve, as
well as never to commit adultery." 9
Another Vacifth has been reported by 'A'ishah (R.A.) that:
"Hindu, the wife of Abu Sufiyan said: 0! Apostle of
Allah, my husband Abu Sufiyan is a cupidity man and
9 Hanbali, Al-Imcim Ahmad, Al-Musnad, Vol. IV p.80-82 188
does not give me except what I take in his
ignorance. The Prophet (may peace be upon him)
said: "Take in a good way what is enough for you
and your child". :°
Mu'awiyah Al-Qushairi asked the Prophet (S.A.W.) what is the
right of the wife towards her husband. He answered, "Feed her
from what you eat, provide her with clothes whenever you clothe
yourself, do not beat her in the face nor insult her, and when
you desert your wife (i.e. abstain from sleeping with her) you
should stay (with her) at home. 11
There is a consensus opinion of Muslim scholars that a man is
obliged to maintain her wife except when she becomes Nashizah,
that is, refractory or unsubmissive and goes out of the house without her husband's consent. At this time, she will not be
entitled to any support from him, until she becomes submissive, because the rejection of the matrimonial restraint in this
instance originates with her; but when she returns home, she is
then subject to it, for which reason she again
1° klanbali, Al-Imcim Ahmad, Al-Musnad, Vol. V p.183. " Al-Bukhara, Muhammad ibn Vol. VII p.99 189
becomes entitled to his support as before. 12
The wife, whether she is a Muslim or a Kitabiyyah, such as a
Jewess or a Christian, rich or poor, young or old, and virgin
or otherwise, is entitled to maintenance with the following
conditions: 13
The marriage contract should be valid.
She should submit herself to him whenever he needs her.
She gives him free access at all lawful times.
She should not refuse to accompany her husband when he
travels unless she strongly feels that during the travel her
personal properties are not safe.
When both parties can derive benefit from each other.
If one of these conditions does not exist, the husband will not be obliged to support her. The husband's duty to maintain commences when the wife attains puberty and not before it."
12 Hamilton, Charles, Al-Hideryah, p.141; Ibn Qudamah, Al Mughni, VolVIII p.156; Al- Zuh aili, Dr.Wahbah, Al-Fiqh Al-Isldmi Wa 'Adillatuh,Vol.VII p.787; Ibn Rushd, Bideryat Al-Mujtahid, Vol.H p.53; Al-Klitib, Muhammad Mughni Al- Muhtdj, V °Lill p.426.
13 Al-Misri, Ah mad ibn Al-Naqib, The Reliance of the Traveller, A Classic Manual of Islamic Sacred Law, p.545 14 Al-Sabiq, Al-Sayyid, Fiqh Al-Sunnah, V ol.VI1 p.88-89. Also see Doi, `Abd Al-Rahman I., Sharrah The Islamic Law, p.208; Al- 190
Assessment of Nafagah (Maintenance)
Nafagah consists of the followings:
1. Food and Drinks.
The husband is obliged to provide his wife's sustenance day by
day. If affluent, he must daily furnish her with one kilogram
of grain that is the staple food of the town in which they
live. If the wife asks for something other than the staple food
of the town, the husband does not have to provide it for her,
and if he gives her something besides the staple, she need not
accept it. The staple food is what is obligatory. He is also
obliged to cover the expenses of grinding it into flour and baking it into bread and to buy the foods that normally accompany it to make it savory and agreeable as much as is customary in the town. If the husband and the wife agree that he give her compensation in place of the above mentioned, she is entitled to the compensation being in the form of money or clothing. ls
Wahbah, Al-Filth AI-Islcimi wa 'Adillatuh, Vol. VII p.788. 15 Al-Misr, Ahmad ibn Al-Naqib, The Reliance of the Traveller, p.543 Also see Ibn Qudamah, Al-Mughni, Vol.VIII p.156. 191
Other scholars do not calculate the amount of money for food
daily, monthly or yearly, which is supposed to be given to the
wife, but the husband must give her what will suffice her
because the Prophet Muhammad ( S.A.W.) said to Hindu, the wife
of Abu Sufiyan, "take what will be enough for you and your
child."' So in this tradition the Prophet Muhammad (S.A.W.) meant that the wife should be provided with what can be enough
for her. As a Kitabiyyah, she is at liberty to eat whatever
food she likes as long as the food is permissible in her
religion. However, if the type of food is not halal
(permissible) in the context of Islam, then it is advisable that she has to be provided with her own cooking utensils. This
is the flexibility of the religion of Islam. It does not restrict her to eat only the food permissible in Islam.
2) Housing.
It is a requirement for a wife to be provided with a house to stay as part of her maintenance as Qur'an states:
16 , Dr. Wahbah, AI-Fiqih Wa 'Adillatuh, VoIVII p.798. See also Al-Dirdir, AI-Sharh Al-Saghir, Vol.II p.721; Ibn Rushd Al-Qurtubi, Bidayat Al-Mujtahid, Vol.II p.52; Al-Shirazi, Al-Muhadhdhab, Vol.II p.161-162; Ibn Al-flumam Fath Al-Qadir, Vol.II p.322. 192
Let the women live in the same style as you live,
according to your means. 17
In another verse Allah says:
Live with them on a footing of kindness and equity."
And keeping her in a house is such a kindness which is
recommendable by Allah (S.W.T.) and the Prophet (S.A.W.). So
the wife is entitled to housing of the same quality as that of
similar women. He has also to provide her with a separate house or apartment, if she needs an independent one whereby she can prevent a co-wife and other people from sharing the same with her. 19 Other Jurists say that in any case, she is obliged to stay in the lodging which the husband arranges for her. 2°
3) Clothing
It is obligatory for the husband to clothe her wife as Allah says:
17 Qur'an 65:6 18 Qur'an 4:19
19 Ahmad, K.N., Muslim Law of Divorce, p.713.
20 Ahmad ibn Al-Naqib, The Reliance of The Traveller, p.545. 193
But he shall bear the cost of their food and
clothing on equitable terms. 21
Therefore the wife is entitled to the kind of clothing that is
customary in town for dressing oneself and not just anything
termed clothing will suffice. What is obligatory is the amount
necessary for the woman, which varies according to whether she
is tall or short, thin or fat, and with the hot or cold climate
of various towns. In summertime, it is obligatory to provide
her with a head covering, shift, underdrawers, shoes, and a
shawl, because of her need to go out; and the same in the winter time, plus a cloak quilted with cotton to protect her
against the cold. If she needs two cloaks because of the
extreme cold, it is obligatory to provide them. It is also necessary and mandatory to provide her clothing at the starting 22 of each season. As a Kitabiyyah she is liable to wear according to her religion's rules.
4) A servant if she is in that category of women who need
servants.
21 Qur'an 2:233 22 Al-Sabiq, Al-Sayyid, Fiqh Al-Sunnah,Vol.V11 p.99-100 Also see Al-Zuhaili, Dr. Wahbah, Al-Fiqh 'Adillatuh,V ol.V111 p.802-803; Ab mad, K.N. , Muslim Law of Divorce, p.713. 194
The Jurists do agree that it is also essential for the husband
to provide the wife with a servant if she happens to be in that
category of women who had servants in the houses of their
parents. Thus, if the husband is capable to do it. Otherwise it
will not be an obligation for him. 23
5) Articles for personal hygiene.
The wife is entitled to what she needs of oil for her hair,
shampoo, and a comb to keep her hair clean, of the kind of
amount that is customary in town, in order to prevent harm to
herself. If oil scented with rose or violet is the custom of
the town, it must be provided, though not things which are merely cosmetic and not for cleanliness, such as eydliner or henna, which need not to be provided, though the husband may decide to provide them if he wishes. It is also obligatory for him to provide deodorant or the like to stop under arm odour if water and soap will not suffice. He will also be obliged to pay the price of water for her purificatory bath when the reason for it is sexual intercourse or the end of postnatal bleeding,
23 Al-Qurtubi, Ibn Rushd, Biddyat Al-Muitahid,Vol.11 p.54; Al-Shirazi, Muhammad ibn `Ali, Al-Muhadhdhab, Vol.Vol.II p.162; Marghi, Ibn YiltsuC Ghciyat Al-Muntaha, Vol.III p.234. 195
or monthly period or something else. He has also to provide her
with kitchen ware, beddings and the like. 24
All these things, as we have already discussed, are supposed to
be provided to the wife according to her status and the
financial position of the husband.
Maintenance after dissolution of marriage
It is the bounden duty of the husband to maintain his wife
during 'Iddah (waiting period) in certain cases regardless of
his physical or financial condition. The responsibility of maintenance of the husband is not only when she lives as a
legal wife and towards his children by that wife, but it is
important to maintain her even in the event of divorce. Allah
(S.W.T.) says:
Let the women (in liddah) live in the same style as
you live, according to your means: annoy them not,
so as to restrict them. And if they are pregnant,
then spend (your substenance) on them until they
deliver their burden: and if they suckle your
24 Al-Ilaskafi, AI-Dur Al-Mukhuir, V ol.II p.893; Al-Dirdir,A1-Sharh Al-Saghir, V ol.II p.733; Al-Shirazi, A1-Muhadhdhab, Vol.II p.161; Marl, Ibn Yilsut Ghciyat Al- Muntalui, Vol.III p.233. 196
child, give them recompense: and take mutual
counsel together, according to what is justice and
reasonable. 25
It has been seen that a marriage is dissolved absolutely on the
pronouncement of an irrevocable divorce. But the wife retains
her status of being a wife during the period of her `Iddah for
certain purposes. A wife can not contract a second marriage
during this period. Hence the liability of the husband to
maintain his wife continues during the period of `Iddah
irrespective of the fact whether the divorce is revocable or
irrevocable. This rule holds good as long as she passes her
`Iddah at the house of the husband. If she leaves his house voluntarily against his wishes no maintenance shall be
incumbent on him. 26
However, there are some selfish people who maltreat their wives and make their lives miserable after pronouncing first divorce and when she is still in 'Iddah period. This is not acceptable in Sharilah. So a wife in `Iddah, whether she is a Muslim, or a
Kitabiyyah, such as a Jewish or a Christian woman, must be
25 Qur'an 65:6 26 Doi, `Abd Al-Rahmin I., Shari'ah The Islamic Law, p.206; Ahmed, KN., Muslim Law of Divorce, p.849-850. 197
provided with all life necessities on the same scale as he is,
according to his status in life. There is still hope of
reconciliation, and if not, yet the parting must be honourable.
In the event of pregnancy, the Holy Qur'an provides additional
responsibility in the following words: 27
For those who are pregnant, their period is until 28 they deliver their burdens.
So no separation will be possible until after the child is
born. Hence she must be properly maintained.
Any woman in her postmarital waiting period is entitled to housing regardless of the `Iddah being of her husband's death, a divorce in which the husband may take her back, or a threefold, finalized divorce. The Qur'an explains this aspect as follows:
O Prophet! when you do divorce women, divorce them
at their prescribed periods, and account
(accurately) their prescribed periods: and fear
Allah your Lord: and turn them not out of their
27 Doi, ProfDr. `Abd AI-Rah man I., Shari'ah the Islamic Law, p.206 28 Qur'an 65:4 198
houses, nor shall they (themselves) leave, except
in case they are guilty of some open lewdness,
those are limits set by Allah: and any who
transgresses the limits of Allah, does verily wrong
his (own) soul: thou knowest not if perhaps Allah
will bring about thereafter some new situation. 29
But it is not obligatory to provide her with food and clothing during the waiting period after a threefold divorce, a release for payment, or her husband's death. This is so because the
Prophet (S.A.W.) said to Fatimah bint Qays, who had been threefold divorced,
"There is no nafaqah (Maintenance) for you except
if you happen to be pregnant". 3°
And in a similar tradition, the Prophet (S.A.W.) said:
29 Qur'an 65:1
" Al- Tirmidhi, Abu `isa Muhammad ibn `isa ibn Saurah, Al -Sunan, V01.111 p.475- 476 199
"Maintenance is essential for a husband to provide
to the wife who happens to be in a waiting period
of Talaq Rajll (a woman in the waiting period of
a non threefold divorce) in which her husband may
take her back". 31
Verily, it will only be provided to this type of woman
mentioned in the above tradition and a woman in the waiting
period of a threefold divorce when she is pregnant. The later
has to be supported daily until she delivers the child. 32The
child's nursing, welfare and the home of the mother remains the
duty of the father. If the mother's milk fails, or if such
circumstances arise which bar the natural course of the mother's nursing her child merits, it is the father's
responsibility to give the child to someone else to suckle at his own expense. This must not instigate the father to cut down the reasonable maintenance to which the mother is entitled taking into consideration the circumstances. 33
31 Al-Tirmidhi, Al-Imam Abil `isa Muhammad ibn `isa ibn Saurah, Al-Sunan, Vol.III p.475- 476
32 Al-Sabiq, Al-Sayyid, Fiqh Al-Sunnah, Vol.VII p.110-112; Al-Zuhaili, Wahbah, Al-Fiqh Al-Isleimi, Vol. VII p.816-817; Yfisuf, , Shaikh Marl, Ghoyat Al-Muntaha, Vol.Ill p.236; Al-Bahilfi, Kashshcif Vol.V p538.
33 Doi, `Abd Al-Rah man I., Shari ah The Islamic Law, p.206. 200
Maintenance of the wife of an absentee
Majority of the Jurists say that it is essential for a woman,
whether she is a Muslim or a Kitabiyyah to take from her
husband's wealth, her maitenance if he does absentee himself.
For example, if he did not give her maintenance in advance
before his leave. If he has no money for the maintenance of the
wife, the Judge has to fix a period of time whereby the husband
has to send maintenance of his wife within that period. If the
period ends without sending her anything, the Judge has the
right to separate them. 34The same rule applies when the whereabouts of the husband is not known and it has been
observed that he has no money to maintain his wife. 35This is
so because 'Umar ibn Al-Khallab (R.A.) wrote to men who were absent of their women to pay their maintenances or to divorce them. 36
The Harlan's say that if a length of time should elapse during which the wife has not received any maintenance from her husband, she is not entitled to demand for that at any time,
34 Al- Sabiq, Al-Sayyid, Fiqh AI-Sunnah, Vol. VII p.113-114. 35 Al-Muhadhdhab, Vol.II p.163; Ibn Rushd, Biddy' at Al-Mujtahid, Vol.II p.55; Al-Bahilti, Kashshaf Al-Qind', V ol. V p.556. 36 Wahbat, AI-Fiqh wa 'Adillatuh, Vol. VII p.813. 201
except when the Judge had previously determined and decreed it
to her, or where she had entered into a composition with the
husband respecting it, in either of which cases she is to be
decreed her maintenance for the time past, because maintenance
is an obligation in the manner of a gratuity. By a gratuity is
understood a thing due without a return. Maintenance is of this
description, it not being held (according to our doctors) to be
as a return for the matremonial propriety; and the obligation
of it is not valid but through a decree of the Judge, like a
gift which does not convey a right to possession but through
seisin, which establishes possession: but a composition is of
equal effect with a decree of the Judge in the present case, as
the husband, by such composition, makes himself responsible, and his power over his own person is superior to that of the
Magistrate. This reasoning does not apply to the case of dowry, as that is considered to be a return for the use of the wife's person. 37
Maintenance of the wife drops, if the Judge decree her maintenance and a length of period elapses without her receiving and the husband should die. The same rule applies when she also dies, because maintenance is a gratuity,
37 Hamilton, Charles, Al-Hidayah, p.142-143. 202
respecting which the rule is that it drops in consequence of
death, like a gift, which is annulled by the decease of either
the donor or donee before seisin being made by the latter."
5.3 Talaq: Divorce
Talaq (Divorce) literally means to set an animal free. It is
used in Sharllah to signify the legal method whereby a marriage
is brought to an end. It may be defined as the release from the marriage-tie either immediately or eventually, by the use of
certain words, whether spoken or written, by the husband. 39
There is no particular formula or words for pronouncing a divorce and any words can serve the purpose so long as they clearly denote the husband's intention to divorce his wife. It can be pronounced before or after the consumation of marriage.
Talaq (Divorce) is permissible in Islam for the following verses:
38 Ibid 39 A1-Sabiq, AI-Sayyid, Fiqh Al-Sunnah, Vol.VII1 p.5; Ibn Qudamah, A1-Mughni, Vol.VII p.277; Al-Imam Ibn Al-Humam Kamal Al-Din, Fath Al-Qadir, Vol.III p.463. 203
A divorce is only permissible twice: after that,
the parties should either hold together on
equitable terms, or separate with kindness. 4°
0 Prophet! When you do divorce women, divorce them
at their prescribed periods, and count (accurately)
their prescribed periods: and fear Allah your Lord:
and turn them not out of their houses, nor shall
they (themselves) leave, except in case they are
guilty of some open lewdness, those are limits set
by Allah: and any who transgresses the limits of
Allah, does verily wrong his (own) soul: thou
knowest not if perchance Allah will bring about
thereafter some new situation. 41
These two verses is clarifying the way Talaq is supposed to be conducted Islamically and the Prophet Muhammad (S.A.W.) through these verses told the pious Caliph 'Umar (R.A.) to teach his son how to divorce. It is reported that Ibn 'Umar divorced his wife while she was menstruating during the life time of Allah's
Messenger (may peace be upon him). 'Umar (R.A.) asked the
4° Qur'an 2:229 41 Qur'an 65:1 204
Prophet (S.A.W.)about it, whereupon Allah's Messenger (may
peace be upon him) said:
Command him ('Abdullah ibn 'Umar) to take her back
(and keep her) and pronounce divorce when she is
purified and she again enters the period of
menstruation and she is again purified (after
passing the period of menses), and if he so desires
he may keep her and if he desires divorce her
(finally) before touching her without having an
intercourse with her), for that is the period of
waiting (`Iddah) which Allah, the Exalted and
Glorious, has commanded for the divorce of women. 42
From the words of Allah and the sayings of the Prophet (S.A.W.) mentioned above, we understand that divorce is allowed in
Islam. But it is not permissible unrestrictedly. There are situations when marital relations are poisoned to a degree which makes a peaceful home life impossible. At this juncture divorce will be a pertinent solution to their undesirable life.
Ahmed K.N., the author of Muslim Law of divorce has beautifully elucidated the position of Islam on divorce by saying that it
42 Al-Nisabiiri, Al-Inuim Muslim, A1-Sal)11), Hadith No.3473, Vol.11 p.755. 205
is a contentious issue. On one hand, it can not be denied that
dissolution of marriage brings about the disintegration of
family life with sequential uncertainty and unhappiness for
children born of the marriage, but, on the other hand, it must
be equally conceded that dissolution of marriage is evidently
desirable when the spouses can no longer live in harmony and
have lost all mutual regard. The continuance of an unhappy
marriage breeds hate and abhorrence, and is likely to ruin the
lives of the parties involved or at least of one of them.
Islam takes a realistic and sympathetic view of human affairs
and therefore it attaches great importance to the happiness of
both spouses. It provides that every attempt should be made to
maintain a marriage, but once it is established that marriage
is a failure, Muslim law does not qualm to allow the parties to
separate from each other. In Islam, marriage in the ordinary
course is to last till one of the spouses dies. But if a
husband and wife can not live happily together so that the very
objects of marriage are defeated and it becomes a mere farce,
then its continuance is no longer considered desirable. Under
such circumstances, divorce and dissolution of marriage are allowed under Islamic Law. 43
43 Ahmed KN., Muslim Law of Divorce, p.1 206
Marriage is regarded by some religions as a sacred tie, and its
dissolution is either disallowed or is permitted under
conditions so exacting that happiness of the spouses is
sacrificed in following the rigours of the law. In Jewish
religion divorce is allowed and men have got immense powers to
practice it. They can easily get rid of his wife by levelling a
flimsy charge of irreligiously on her. Even if the husband
intended to compromise, still he was bound by the religious
code to divorce underground. Besides, according to their law if
a woman had not given birth to a child after ten years of marriage, it was essential for the husband to divorce her. 44
A Christian marriage is regarded a sacrament and indissoluble.
It is absolutely prohibited in the beliefs of the Catholics for a man to divorce his wife under any circumstances. Even under the disloyalty and treachery of one of them, it is not an accountable reason for divorce. It is only a body separation between the couples which is allowed when treachery has happened from one of them. But their marriage still lawfully exists and it is not permissible for one of them to contract any marriage with another person during this disertOkion.
" Doi, `Abd A1-Rah man I., Shari'ah The Islamic Law, p.180; Al-Sabiq, A1-Sayyid, Fiqh Al-Sunnah, Vol. VIII p.15. 207
Because if one of them happens to contract marriage during this
period, it will be regarded as polygamy which is not lawful in
Christianity. 45 The Catholics base their opinion on the
following verses:
... For this reason a man will leave his father
and mother and be united to his wife, and the two
will become one flesh. So they are no longer, but
one. Therefore what God has joined together, let
„ 4 6 man not separate.
Other Christian denominations do lawfully allow divorce in some
cases especially when one of the couples commit adultery. It went so far as declaring unlawful the second marriage by the person who divorced his wife as well as the woman who was divorced by him earlier. They base their view on the following words of Jesus Christ (P.B.U.H.):
But I tell you that anyone who divorces his wife,
except for marital unfaithfulness, causes her to
45 A1-Sabiq, A1-Sayyid, Fiqh AI-Sunnah, Vol.VITI p.12-13. 46 Mark10:7-9 208
become an adulteress, and anyone who marries the
divorced woman commits adultery. 47
These denominations which prohibits the marriage of divorced
ones base their opinion on what came in the Gospel of Mark as
it says:
Anyone who divorces his wife and marries another woman commits adultery against her. And if she divorces her husband and marries another man, she commits adultery. 4 8
So Christianity has a unique system of divorce. It opposed the
Jewish religion and declared divorce as unlawful, mainly
attributed to the teachings of Jesus Christ (P.B.U.H.) as we
have already discussed. The Protestants have allowed divorce on
the grounds of adultery only, but if divorce is granted on any
other grounds, including cruelty, high mindedness and prolonged
quarrels, it is declared unlawful for the two parties. The
Orthodox Coptic church of Egypt has made many amendments in the biblical provision for divorce. They include the barrenness of
the wife for three years, contagious disease and prolonged
quarrels, where there is no hope for settlement. But these
" Matthew 5:31 48 Mark 10:11-12 209
amendments are sociality and man-made rather than based on the
commandments of the Bible. 49
This is the position of Judaism and Christianity on divorce.
Woman of the book under Muslim husband will be treated the same
way a Muslim wife is treated. She will not be divorced unless
and until there is no harmony and love in their family. Divorce
without a proper reason in Islam is prohibited and the Prophet
(S.A.W.) said concerning men who divorce their wives as a matter of getting rid of them:
Allah cursed every epicurean and all who are fond
of divorcing, 50
So if the relationship between the husband and the wife is so perfect there is no need for the husband to get rid of her without a proper reason. It is also reported that the Prophet
(S.A.W.) said:
"Of all things which have been permitted, divorce
is the most abominable with A11.411". 51
49 Doi, `Abd Al-Rabmin I., Shariah The Islamic Law, p.181; Al-Sabiq, Al-Sayyid, Fiqh
Al -Sunnah, Vol.VIII p.14 - 15.
5° Al-Sabiq, AI-Sayyid, Fiqh Al -Sunnah,V ol. VIII p.8
51 A1-Sajistani, Abu DawCid Sulyman ibn Al-Ash`ath AI-Azdi, Al - Sunan, Vol.1 p.303. 210
In this tradition the Prophet (S.A.W.) was clarifying that even
though divorce is allowed for proper reasons it is the most
hated by the Almighty Allah. Then what more with that divorce
which someone practices not with a proper reason, but to
fulfill his sexual desires by getting rid of his first wife and
get married to another one as a habit of some people. Such
behaviour is strongly disapproved of and discouraged in Islam.
Even when a man is not satisfied with his wife, the Qur'an
enjoins forbearance. 52 Allah says:
And live with them on a footing of kindness and
equity if ye take a dislike to them it may be that
ye dislike a thing, and Allgh brings about through
it a great deal of good. 53
So Islam discourages this behaviour and encourages men to keep their wives. The Prophet Muhammad (S.A.W.) says:
52 Al-Zuhaili, Wahbah, Al-Fiqh Al-Islcimi wa 'Addlatuh, V ol.V11 p.358-359. 53 Qur'an 4:19 211
Let not the faithful man hate the faithful woman;
if he dislikes some of her habits, he may like
others. 54
He is also reported to have said:
Marry, do not divorce, for Allah does not like men
and women who relish variety in sex matters. 55
Therefore the husband is not to divorce his wife except in the
case of her being unfaithful as already stated. They will also
not be forced to stay together when it is impossible for them
to. It will be necessary for them to separate for the avoidance
of greater evil which may result from the continuance of their marriage. But even in such cases an attempt is first to be made
for reconciliation by referring the matter to arbitration. Thus
it is laid down in the Qur'an,
"And if you fear breach between them twain, appoint
two arbiters, one from his family, and the other
from hers; If they seek to set things alright,
54 Waliyyu Al-din, Al-Khatib, Mishkal Al-Macibilj, First Edition New Delhi, 1350A.H., p.280. 55 'Ali, Al-Muttaqi, Kan: A 1-'Untmeil, Hyderabad, Deccan, 1313A.H., Vol.V p.159. 212
Allah will cause their reconciliation: for Allfih
hath full knowledge, and is aquainted with all
things."
According to the spirit of the law, it is only when
disagreement continues and efforts to bring about a
reconciliation prove unavailing that the parties may dissolve
the marriage. It is clearly from this that a Muslim husband
can not justly divorce his wife in the absence of reasonable
grounds and without having recourse to an attempt at
reconciliation. It is unfortunate that this basic principle
regarding divorce has been lost sight of and divorce given
capriciously and without any justification, whatsoever, is
considered good in law, though it is strongly discouraged in
Islam. This conception of law ignores the strong condemnation
and disapproval of divorce in Islam and has led many a husband
to make an unscrupulous use of his power to divorce. This often
results in great misery and unhappiness for the wife and has made marriage insecure and the wife's position very precarious. 57
56 Qur'an 4:35 57 Ahmed, K.N., Muslim Law of Divorce, p.5. 213
Procedure of Talaq (Divorce)
There is a laid down procedure of divorce in Sharl'ah such as
to encourage reconciliation wherever possible. But if all the
efforts to reconcile and establish good relationship between
the husband and the wife fail, and the two partners consider it
impossible to live together any longer, there is no loathsome
chain of forcing them to live together. They may separate in
peace and each of them may seek fulfilment with somebody else
with a new marriage relationship. Marriage is thus to be
understood as a mere contract in Islam and should be made to work as long as love and respect for each other lasts. The aim
of the Shari`ah is to establish a healthy family unit through marriage, but if this purpose fails, there is no need to linger on under pretence as is the practice among the adherents of
some other religions where divorce is not permitted and a vow is taken at the marriage ceremony that they will not break the marriage promise "until death do us part". 58
The Islamic Law has clarified the right procedure a Muslim has to follow whenever he wants to divorce his wife whether she is a Muslim or a Kitabiyyah. Of the several forms of divorce
58 Doi., Abdc Al-Rahman I., Shari ah The Islamic Law, p.173. 214 recognised in Shari'ah is the one which the Holy Prophet
Muhammad (S.A.W.) approved as the right form of Talaq and is called Talaq Al-Sunni. This form of repudiation involves the following conditions:
/.The husband, in the first place, must pronounce only one
Talaq (repudiation), the object of this limitation is that
he may subsequently, when better sense prevails, revoke the
repudiation, if he has pronounced Talaq from caprice or in a
momentof excitement within the period of the wife's lIddah
which begins after the pronouncement of divorce.
2. The Talaq, is to be pronounced when the wife is in a state
of purity (Tuhr) and there is no bar to sexual intercourse.
It is declared unlawful to pronounce Talaq when the wife is
in a state of purity while he had sexual intercourse during
this period because she will not know whether she is
pregnant or not. She will not know whether to perform
divorced women kind of liddah or pregnant women kind of
`Iddah. It is also prohibited to pronounce repudiation when
she is in her menses. This is so because when a woman has
been divorced during this period, she will be far from her 215
waiting period. As a result her waiting period becomes so
long so that it affects her because the remaining days of
her menstrual periods are not counted for, and as already
elaborated, there is a harm on her side."
3. The husband must abstain from intercourse with his wife
after pronouncing repudiation for the period of three
months, the period of her 'iddah.
These conditions have to be available in someone's mind when he
wants to divorce his wife. Otherwise he will be out of the
right procedure which the Holy Prophet (S.A.W.) did teach us.
It is reported that 'Abdullah ibn 'Umar (R.A) had divorced his
wife while she was menstruating during the lifetime of Allah's
Apostle (S.A.W). 'Umar ibn Al-Khaltab asked Allah's Apostle
(S.A.W) about that. Allah's Apostle (S.A.W) said, "Order him
(your son) to take her back and keep her till she is clean and
then to wait till she gets her next period and becomes clean again, whereupon, if he wishes to keep her, he can do so, and
if he wishes to divorce her he can divorce her before having
59 Al-Sabiq, Al-Sayyid, Fig'? Al-sunnah, vol. VIII p.57. 216
sexual intercourse with her; and that is the prescribed period
which Allah has fixed for the women meant to be divorced. „ 60
So every Talaq (repudiation) which does not have these three
conditions mentioned above is called Talaq al-Bidlah
(Innovated divorce). This type of divorce becomes irrevocable
as soon as it is pronounced. It is a type of divorce whereby a
Muslim pronounces a divorce thrice at one and same sitting or
divorce her while she is in her menses or while she is in
purity but had sexual intercourse with her during that period.
There is a consensus opinion of Muslim scholars that this type
of divorce is unlawful and the one who divorces his wife in
this way is committing a henious sin. 61This form of divorce
leaves no room for reconsideration and no chance for
repentance. It is usually done by ignorant Muslims to satisfy
their selfish motives.
5.4 Rhul' (Divorce at the Instance of the wife)
Family life always continue with the existence of love, peace and harmony. It becomes so good when the two parties perform
6° Al-Bukhari, Muhammad ibn Ismail, Al-S'al)117, Iladith No.178, 159, Vol.VII p.129. 61 Al-Sabiq Al-Sayyid, Fiqh AI-Sunnah, Vol.VIII p.59; Also see Doi, `Abd Al-Rahman I., Shari'ah The Islamic Law, p.179. 217
their respective roles accordingly. But sometimes the husband
hates his wife and vice-versa for several reasons. Islam, at
this moment, advices the two parties to be calm and patient.
Allah (S.W.T) says:
Live with them on a footing of kindness and equity.
If ye take a dislike to them it may be that ye
dislike a thing, and Allah brings about through it
a great deal of good. 62
In an authentic tradition the Prophet (S.A.W) said:
A believing man should not abhore a believing
woman, if he dislike a certain character in her, he
will be happy with another. 63
But there are certain circumstances whereby love, peace and harmony does not exist in a family. At this juncture, separation will be the only and suitable solution. Just as
Sharilah (Islamic Law) did provide the right for a husband to divorce his wife, it did the same for a wife whether she is a
62 Quein 4:19
63 Waliyyu Al-din, Al-khattib, Mishkat Edition-1350A.H., New Delhi, India, p.280. 218
Muslim or a Kitabiyyah. She can also ask for divorce if
sufficient grounds exist for it. If the husband is cruel, she
can ask for a divorce (Khul') and she is not forced to tolerate
what seems to be intolerable for her. It is one of the ways of
the dissolution of marriage and has been well recognised and
followed from the early period of Islam. It is stated in the
Holy Qur'an:
And women shall have rights similar to the rights
against them, according to what is equitable; but
men have a degree over them, and Allah is Exalted
in Power."
There do occur cases of torture and maltreatment of the wife in
the society where divorce is not allowed. Islam by allowing divorce initiated by the wife has helped the Muslim homes not
to become miserable for children because of the limitless nagging and quarrelling between father and mother and the two partners are not condemned to life long unhappiness. 65
Definition of Khull
64 Qur'an 2:228 65 Doi, Prof. Dr. `Abd Al-Rahman I., Shari 'ah The Islamic Law, p.192. 219
Khull literally means "to put off", as a man is said to Khala`a
his garment when he puts it off, because a woman is a dress of
a man and vice-versa as is declared in the Qur'an:
"The women are your dress and you are their dress"."
In Islamic Law, it is the demission or laying down by the
husband of his right and authority over his wife at her
instance on acceptance of consideration by means of the word
Khul'. It signifies a conditional agreement on the part of the
husband entered into for the purpose of dissolving the marital
relationship at the desire of the wife in lieu of a
compensation paid by her to the husband out of her property.
Its object is to enable a wife to get a release from the marriage-tie when she finds that the ends of the marriage are not likely to be achieved by a continuance of their union or when she suffers ill-treatment from her husband or when she
finds that it is not possible for her to live with her husband in harmony and peace.
Ibn 'Abbas (R.A) narrated:
66 Qur'an 2:182 220
The wife of Thabit ibn Qays came to the Prophet
(S.A.W.) and said, "0 Allah's Apostle! I do not
blame Thabit for defects in his character or his
religion, but I, being a Muslim, I dislike to
behave in un-Islamic manner (if I remain with
him)." On that Allah's Apostle (S.A.W.) said (to
her) , "Will you give back the garden which he had
given you (as Mahr)?" She said, "Yes." Then the
Prophet (S.A.W.) said to Thabit, "0 Thabit! Accept
your garden, and divorce her at once." 67
Thus when the wife becomes apprehensive that her husband fails
to observe the bounds described by the Shari'ah that is, can
not perform the duties imposed on him by the conjugal
relationship, she can release herself from the tie, by giving up whole or some property in return, in consideration of which
the husband is to give her a `11Chul" and when they have done
this, an irreversible divorce would take place with consent of each other. Khull is also accepted when a woman has discovered
from his partner a physical defect and a bad character. She is also entitled to ask her husband for a divorce ("awl` ) if she fears cruelty or desertion from him. Allah (S.W.T.) says:
67 Al-Buldfiri, Al-Imam Muhammad ibn Vol.VII p.150. 221
If a wife fears cruelty or desertion on her
husband's part, there is no blame on them if they
arrange an amicable settlement between themselves;
and such settlement is best; even though men's
souls are swayed by greed. But if ye do good and
practise self-restraint, Allah is well-acquainted
with all that ye do."
Here the Qur'an has made it clear that the woman, whether she
is a Muslim or a Kitabiyyah, has got the right to ask for
divorce (rthul`) when he fears maltreatment from her husband.
It must be noted here that a woman is not supposed to demand
for a divorce (Khul`) except in extreme circumstances like
those discussed above. The Prophet Muhammad (S.A.W.) warned women who ask their hlands Khull without any reasonable A ground by saying:
"If any woman asks for divorce (Khull) without any
specific reason, the fragrance of paradise will be
unlawful to her." 69
68 Qur'an 4:128
69 Al-Tirmidhi, Abu `isa Muhammad ibn isa ibn Sawrah, Al-Jcinti`u Al-Sahib wahuwa Sultan Al-Tirmidhi, Haab No.1186, Vol.III p.483. 222
Hasan Al-Basari has also narrated a Hadith from Abu Hurairah
on the same issue:
"The women asking for separation and Khul` are
hypocrites.""
As it is unlawful for a woman to ask her husband divorce
(Khul'), it is also prohibited for a man to maltreat his wife
so that she should divorce through Khull. This is so because a
woman will suffer twice. She will be affected by the separation
from her husband and at the same time she has to pay the
compensation fee. Allah (S.W.T.) has condemned this behaviour
by saying:
0 ye who believe! Ye are forbidden to inherit women
against their will. Nor should ye treat them with
harshness, that ye may take away part of the dowry
ye have given them, except where they have been
guilty of open lewdness; on the contrary live with
them on a footing of kindness and equity if ye take
a dislike to them it may be that ye dislike a
70 • 223
thing, and Allah brings about through it a great
deal of good. But if ye decide to take one wife in
place of another, even if ye had given the latter a
whole treasure for dowry, take not the least bit of
it back: would ye take it by slander and a manifest
sin?"
It is clear from the above verses that it is forbidden to
detract from the freedom of married women by treating them
badly and force them to sue for a Khul` divorce. If someone
wants to leave the first woman and marry another woman, he has
to do that in a good way without slandering the first woman and
treat her harshly and cruelly inorder to compel her to return
the dowry-gift and snatch some of her property through Khull to
be used in the second wife as was the practice of Arabs in the
pre-Islamic ages. This practice is totally forbidden and
discouraged in Islam.
POINTS TO BE TAKEN INTO CONSIDERATION ON EMIL
1.A woman has to perform lIddah of one menstruating period
after Khull 72 as reported in the badith of Thabit ibn Qays:
71 Qur'an 4:19-20 72 Al-Sayyid, Flail A 1-Sunnah, Vol.VIII p.142 224
"Take what you had paid her and leave her. He said:
"Yes". The Prophet (S.A.W.) then commanded her to
perform `Iddah of one menstruating period and then
go back to her parents". 73
2.Khu1` can be practiced either when a woman is in her
menstruating periods or not. This is so because the Prophet
(S.A.W.) did not enquire about that when he commanded the
wife of Thabit (R.A.) to perform lIddah. 74 However, other
scholars do say that the procedure of Khull should be in the
same way Talaq is conducted.
3.A husband is not allowed to take from the wife a
compensation fee more than what he had paid for, as dowry. 75
`Abdullah ibn Al-Zubair is reported to have said that:
"Thabit ibn Qays did pay a garden as a dowry for his wife.
When she asked for Khul` and came to the Prophet (S.A.W.),
he said to her: "Are you going to give him back his garden?"
She said: "Yes, and even more". Then the Prophet (S.A.W.)
73 Al-Imim Al-Sunan, V ol.11 p.112 74 Al-Sabiq, A1-Sayyid, Fiqh A I-Sunnah, Vol.Vill p.132 75 Mid p.127 225
said: You can not give more than what he gave you as dowry.
You have to give him back his garden only. She said: Yes." Th
However, there are other scholars who say that the
compensation fee can be more or less. Their view is based
upon the following verse whereby Allah (S.W.T) says:
It is not lawful for you, (Men), to take back
any of your gifts except when both parties fear
that they would be unable to keep the limits
ordained by Allah. If ye (judges) do indeed fear
that they would be unable to keep the limits
ordained by Allah, there is no blame on either
of them if she give something for her freedom. 77
The verse does not clarify how much the wife has to give for
her freedom. It is only urging the woman to give a
compensation fee for her freedom if she asks for Khul'.
`Abdullah ibn Al-Zubair reported to have said: "My sister
was married to a person from Al-Ansar group. She then asked
for a divorce Khul'. The Prophet (S.A.W.) asked her if she
can give back his garden which he paid her as dowry? She
76 Al-Shaukani, Muhammad ibn 'Ali, Fath Al-Qadir, Vol.VI p.277 77 Qur'an 2:229 226
said: I will pay it and even more. She gave back the garden
and an increment on top of that". 78
But the scholars of the sciences of hadith say that this
hadith is not authentic. Therefore, the preponderance view
will be the first one which says that the woman is not
supposed to pay the husband on Khull more than what he paid
as her dowry. It is clear from the tradition of Abu Sa'id
Al-Khudri, which is an authentic hadith and does clarify
properly the words of Allah in the above verse, that the
Prophet (S.A.W.) did prohibit women to pay, as a
compensation fee, more than what their husbands paid them as
their dowries.
5.5 'IDDAII (WAITING PERIOD)
When marriage is dissolved either by the death of the
husband, divorce, or by the decree of a court or any other
way and a child is born subsequently, the question arises
whether it can be affiliated to the person who was the
husband of the child's mother before its birth or not. The
78 Al-Bayhaqi, Al-Sunan, Maktabat Mustafa A1-babi Al-Halabi, First Edition 1387A.H., Cairo, Egypt, Vol.III p.321 227
question becomes complicated if the woman enters into
another marriage and a child is born to her subsequent to
such marriage at such a period of time that it may belong to
either husband.
To provide a solution to such complicated situations,
different nations have formulated various rules of law. Thus
the Romans forbade a widow to marry until after the exp ry
of ten months from her husband's death. Other nations did
also adopt some such period of time as ten months, as
necessary period of waiting. Amongst the ancient Arabs, it
was the custom for a widow after the death of her husband
to wait for a certain period by withdrawing to a small tent
where she would spent a certain period and was not allowed
to cleanse herself. Islam confirmed this custom in a
different way to that system in pre-Islamic ages. 79
Before the advent of Islam, whosoever married a pregnant
divorcee was considered to be the father of the child born
after their marriage even though the previous husband was
really the father. Islam, however, declared that the actual
father is considered to be the father of the child. It also
79 Ahmed, K.N., Muslim Law of Divorce, p.842 228
declared that it is not all necessary to force a woman to
wait for a very long period such as ten months as it may
involve hardship and even may lead to immorality. It is
considered that the signs which serve as sure indications of
pregnancy can appear after a reasonable time and there is no
need to wait any longer. If the signs do not appear within
that time then this establishes the fact that the woman is
not pregnant.
Definition
lIddah is an Arabic word derived from A1-Vidad meaning the 80 number or to count. Muslim Jurists uses this word
technically to mean the period of waiting by a woman on
dissolution of her marriage after consummation or on the
demise of her husband or on a valid retirement. 81
In Al-Fatdwa A1-Hindiyyah, it is described as the waiting
for a definite period which is incumbent upon a woman on the
death of her husband or after the dissolution of a rightful
80 A1-Fairuz 'Abadi, Majdu Al-Din Muhammad ibn Al-Qcinnis Vol.1 p.312, Dar Al-Fikr 1403A.H.\1983A.D, Beirut, Lebanon. 81 Ahmed, KN., Muslim Law of Divorce, p.843-844; Ibn Qudamah, A1-Mughni,Vol.V111 p.78-80 229
or resemblance marriage that has been confirmed by
consumation. 82
In A1-Hidayah, lIddah is the term of probation (or waiting)
incumbent upon a woman in consequence of the dissolution of
her marriage after carnal connection; it is the term by the
completion of which a new marriage is rendered lawful. 83
The Muslim Jurists have unanimously agreed on it
essentially, since the injunction of the Qur'an is quite
explicit on the subject. Allah (S.W.T.) says:
Divorced women shall wait concerning themselves
for three monthly periods. 84
The Sharl`ah emphasizes on reconciliation as a better course
than divorce for the married partners and give them
opportunity to mend their relations if they have gone sour.
Therefore, the Holy Qur'an prescribes a period of waiting
after divorce has been pronounced so that a spell of
temporary separation and suspension of conjugal relations
82 Al-Fatciwah Al-Ilindiyyah, V ol.11 p. 134 83 Hamilton, Charles, A 1-Hidayah, p.128 84 Qur'an 2:228 230
may give spouses time for rethinking and reconsideration in
the interests of family and children, if any, of the
question whether divorce should be revoked or made final and
irrevocable. 'Iddah has another important object and that is
to ascertain whether the woman is pregnant or not so that
the paternity of the child that may be born to her after the
death of her husband or the dissolution of her marriage may
be determined. 85
Observance of `Iddah is incumbent under certain conditions
on every wife of a Muslim whether she is a Muslim or a
Kitabiyyah, that is, a woman belonging to a revealed
religion such as a Christian woman or a Jewess. But no
`Iddah shall be incumbent on a woman whose connection with a
man is merely adulterous.
Different kinds of `Iddah
There are four kinds of `Iddah. a) `Iddah of women who menstruate.
85 Doi, `Abd A1-Rahman I., Sharrah The Islamic Law, p.198; Ahmed, KN., Muslim Law of Divorce, p.844; Al-Sabiq, Al-Sayyid, Fiqh Al-Sunnah, Vol. VIII p.178. 231
If a woman has been divorced and is under the above category
of women who menstruate, she has to wait for three monthly
periods." Allah (S.W.T.) says:
Divorced women shall wait concerning themselves
for three monthly periods. And it is not lawful
for them to hide what Allah hath created in
their wombs, if they have faith in Allah and the
Last Day. And their husbands have the better
right to take them back in that period, if they
wish for reconciliation."
That is if the marriage was consummated. If not, the woman
will not be obliged to observe lIddah. Allah (S.W.T.) says:
0 ye who believe! When you marry believing
women, and then divorce them before ye have
touched them, no period of `iddah have ye to
count in respect of them: so give them a
present, and release them in a handsome manner. 88
86 Ibn Qudamah, Al-Mughni, Vol. VIII p.81 87 Qur'an 2:228 88 Qur'an 33:49 232
`Iddah of women who have passed the age of monthly courses
or those who do not menstruate.
The woman of this category will be obliged to observe a
waiting period of three months." Allah (S.W.T.) says:
Such of your women as have passed the age of
monthly courses, for them the prescribed period,
if ye have any doubts, is three months, and for
those who have no courses (it is the same). 9°
`Iddah of women whom their husbands have passed away.
The woman of this category shall wait for a period of four
months and ten days. They shall observe this period
regardless of whether the marriage has or has not been
consummated. 91 The Qur'an states:
If any of you die and leave widows behind; they
shall wait concerning themselves four months and
ten days. 92
89 Ibn Qudamah, AI-Mughni, Vol. VIII p.83 90 Qur'an 65:4 91 Ibn Quelarnah, Al-Mughni, Vol.VIII p.95 92 Qur'an 2:234 233 d) liddah of pregnant women.
A woman of this category shall wait till she delivers what
Allah has created in her womb. Thus whether the woman has
been divorced or her husband has passed away. 93Allah
(S.W.T.) says:
For those who are pregnant, their period is
until they deliver their burdens. 94
This is how lIddah is supposed to be observed by a married
woman regardless of whether she is a Muslim or a Kitabiyyah.
However, `Iddah will not be incumbent on the following
women:
A woman who has been divorced before consumation as
already discussed.
A woman whose connection with a man amounts merely to
adultery.
Two sisters married to a person by one contract and it
has been cancelled.
More than four women married to a person by one contract
which has been cancelled.
93 Ibn Qudamah, Al-Mughni, Vol. V111 p.98 94 Qur'an 65:4 234
5. A woman who is afflicted with the malformation of her
genital parts rendering consummated of marriage impossible
on the dissolution of her marriage.
5.6 Zihar (Injurious Assimilation)
Zihar is an Arabic word from the root Zahr, literally means
`back'. In the pre-Islamic Arabia, when a husband tells his
wife that her back is like that of his mother or sister or any
other woman whom it would be unlawful for him to marry. 95The
implication being an intention to end his marriage with her. In
the language law it signifies a man comparing his wife to any
of his female relations within such prohibited degrees of
relationship, whether by blood, fosterage or marriage, as
renders marriage with her invariably. 96
Zihar was another form of divorce in the pre-Islamic period,
it persisted even during the early era of Islam. 'Aus ibn
Sami's wife, complained to the Holy Prophet informing him that
her husband had made an oath of injurious assimilation
vs Ibn Qudamah, AI-Mughni, Vol.VILI p.3-4 96 Al-Fatciwa Al-Hindiyyah, Kampur 1349A.H., Vol.II, p.126 235
(Zihar), in other words, he swore that her back is like that
of his mother. The Holy Prophet (S.A.W.) said to her:
"You are unlawful to him".
She said, he did not mention divorce. It appears the woman
wanted the Holy Prophet (S.A.W.) to intervene but he repeated
what he said earlier. This woman insisted for she wanted from
the Holy Prophet (S.A.W.) to say something which will make her
lawful to her husband. Then the following verse was revealed to
the Holy Prophet (S.A.W.). Allah (S.W.T.) says:
Allah has indeed heard (and accepted) the statement
of the woman who pleads with thee concerning her
husband and carries her complaint (in prayer) to
Allah: and AllSh will (always) hears the arguments
between both of you: for Allfih (always) hears and
sees (all things). 97
From the day this verse was revealed, Islam condemned this form
of divorce. After it has been .conderdfied - and declared as
invalid, Allah did not want to leave it like that without
97 Qur'an 58:1 236
punishing those who commit that offense by imposing some
penalties on those who utter it. Allah (S.W.T) says:
But those who pronounce the word `1Zahar" to their
wives then wish to go back on the words they
uttered, (It is ordained that such a one) should
free a slave before they touch each other: this are
ye admonished to perform: and Allah is well-
acquainted with (all) that ye do. And if any has
not (the means), he should fast for two months
consecutively before they touch each other, but if
any is unable to do so, he should feed sixty
indigent ones. This, that ye may show your faith in
Allah and His Messenger. Those are limits (set by)
Allah. For those who reject (Him), there is
grievous chastisement. 98
It is incumbent on any offender who wants to revoke his
declaration to make (Kaffarah) expiation. And this can be done by freeing a slave. If he is unable to do that, he should fast
for two successive months and if he is also unable to do so
then he has to feed sixty needy ones. Islamic Law has imposed
98 Qur'an'fin 58:3-4 237 these rules on the husband for him to be disciplined so that he should not repeat this irrecommendable act which was practised in pre-Islamic ages.
This is the way a husband has to be treated when such offense has been committed against his wife whether she is a Muslim or a Kitabiyyah.
5.7 Li`an (Mutual Imprecation)
Li`an literally means to drive away. In Islamic law it means to drive away from the mercy of Allah on account of imprecation involving the curse and wrath of Allah (S.W.T.). When a husband accuses his lawfully wedded wife of adultery directly or indirectly as when he denies the paternity of a child born of her during wedlock, she has a right to apply to the Qadi
(Judge) to order the husband either to support his accusation by taking the special prescribed oath or to admit the falsity of his charge. This procedure of taking oaths, fully described later, is called Li`an.
Li`an becomes due when the husband accuses his wife of adultery,
, or suspecting that a child born by his wife is not his, and does not wish to acknowledge it. It will be due to him under 238
such circumstances that if he had made the accusation against
any other woman then he would be liable to prosecution for
defamation as been said in the Holy Qur'an: 99
And those who launch a charge against chaste women,
and produce not four witnesses (to support their
allegations), flog them with eight stripes; and
reject their evidence ever after: for such men are
wicked transgressors. 100
Both Qur'an and Sunnah have recognised the practise of Lilan.
Allah (S.W.T) says:
And for those who launch a charge against their
wives, and have (in support) no evidence but their
own. Let one of them testify four times by Allah
that he is of those who speak the Truth. 1 "
It means that the husband should swear four times and end with
the fifth one invoking the curse of Allah on him if he tells
lie. Allah (S.W.T.) explains:
99 Hamilton, Charles, Al-Hiclayah, p.123-124 '°° Qur'an 24:4 il" Qur'an 24:6 239
And the fifth (oath) (should be) that he solemnly
invokes the curse of Allah on himself if he tells
lie. 102
The wife, whether a Muslim or Kitabiyyah, would also have to defend himself before the Judge, otherwise she will be liable for punishment. The Islamic Law punishes the offense of adultery (Zinc) severely, so it takes a serious view of an imputation of unchastity against a married woman. The Qur'an describes:
But it would avert the punishment from the wife, if
she bears witness four times (with an oath) by
Allah, that her husband is telling a lie".
The woman will also conclude her oath with the fifth one saying that the wrath of Allah be on her if he speaks the truth. Verse
9 of the same serah states:
102 Qur'an 24:7 103 Qur'an 24:8 240
And the fifth (oath) should be that she solemnly
invokes the wrath of Allah on herself if (her 104 accuser) is telling the truth.
After the above mentioned procedure of Lilan has been taken, the marriage will still be annulled and they will be separated by perpetual divorce from her husband who may never in any circumstances marry her again. Ibn 'Umar narrated that the
Prophet (S.A.W.) separated (divorced) the wife from her husband who accused her for an illegal sexual intercourse, and made
105 them take the oath of Lilan.
On the question of the ownership of the child, whom the husband disallowed, the child reckons descent from the mother. Narrated
Ibn 'Umar:
The Prophet (S.A.W.) made a man and his wife carry
out Li'an, and the husband repudiated her child. So
the Prophet (S.A.W.) got them separated (by
divorce) and decided that the child belonged to the
106 mother only.
104 Qur'an 24:9
105 Al-Bukhara, Muhammad ibn Isma`11, Hadith No.179, Vol. VII p.179.
106 A1-Bukhara, Muhammad ibn Isma`11, Al-Sahih, Hadith No.235, VoI.VII p.180. 241
In this case, there is no inheritance between the child and the husband of the child's mother and no one else can claim the paternity of the child, for Islamic Law does not recognise any external claims to paternity of a child which the mother's husband has disallowed; in such case, no blood relationship exists between the child and the person claiming to be his father.
The proceeding of action of mutual imprecation must be solemnly conducted before an assembly of people in a sacred place like a mosque. The following Ifadith confirms it; narrated Sahl ibn
Sa'd:
A man came to Allah's Apostle and said, "0 Allah's
Apostle! Suppose a man saw another man with his
wife, should he kill him, or what should he do?" So
Allah revealed concerning this affair of his, what
is mentioned in the Holy Qur'an about the affair of
those involved in Lilan. The Prophet said "Allah
has given His verdict regarding you and your 242
wife,". So they carried out Lilan in the mosque
while I was present there. 1"
Li`an is the better solution when the relationship between
the husband and the wife has soured. Because, when the
husband suspects his wife, whether she is a Muslim or a
Kitabiyyah, there will be no peace and harmony in their
family.
5 . 8 ILEA ' (VOW OF CONTINENCE)
The word in its literal sense means a vow and the maker of
the vow is called a W211, who is defined as a person who can
not approach his wife for a period of four months without
incurring some penalty or some very troublesome, serious or
difficult liability. In Islamic Law, it implies a husband's
swearing by Allah or making declaration to abstain from
sexual intercourse with his wife for a period of four months
or a longer period or that he shall undergo some specified
hardship by way of penalty if he is intimate with the wife
within the specified period of time or make some specified
107 Ibid, p.175 - 176 243
expiation . 1 "
This special oaths was the normal practice in the pre-
Islamic period. When a husband wanted to punish his wife, he
swore not to have any sexual relation with her for a certain
period at times one, two, or more years; it was considered
as some kind of temporal divorce. Islam disapproves the
practice and limited it to four months, that one can not
take oath of abstention from his wife for more than four
months. Allah (S.W.T.) says:
For those who take an oath for abstention from
their wives, a waiting period for four months is
ordained; if they then return, Allah is oft-
forgiving, Most Merciful .109
Allah is oft-forgiving if, on one hand, the husband changes
his mind before four months. If, on the other hand, he
insisted on his stand to refuse to have sexual intercourse
with his wife for more than four months, the wife can
108 Hamilton, Charles, Al-Hidciyah, Premier Book House1985, Lahore, Pakistan, p.109-110; Ibn Qudamah, AI-Mughni, Dar Al-Fikr, First Edition1405A.H\1984A.C., Beirut, Lebanon, Vol.IV p.414-420. 109 Qur'an 2:226 244
complain to the Qadi (Judge)or any authority which is
recognised for settling cases between couples, so that he or
the authority intervenes. The (WI will ask the husband to
resume sexual relation with her, and if he refuses, the
marriage will be annulled.
The husband's actions show that he means divorce. The Qur'an
says:
But if their intention is firm for divorce,
LW Allah hearth and Knoweth all things.
So when the period of four months has expired, then the
husband should divorce his wife. But the divorce does not
occur unless the husband declares it.
Ida' was first practiced by the Prophet Muhammad (S.A.W.).
Ibn 'Abbas (R.A.) reports:
I intended to ask 'Umar (R.A.) about those two ladies who
had pressed for worldly riches during the life time of the
10 Qur'an 2:227 245
Holy Prophet (S.A.W.), and I kept waiting for one year, but
found no suitable opportunity with him until I happened to
accompany him to Mecca. And as we reached Marr al - Zahran
(the name of a place) he went away to answer the call of
nature, and he said (to me) : Bring me a jug of water, and I
took that to him. After having answered the call of nature,
as he came back, I began to pour water (over his hands and
feet), and I remembered (this event of separation of Allah's
Apostle [may peace be upon him] from his wives). So I said
to him: Commander of the Faithful, who are the two ladies
(who pressed the Holy Prophet (S.A.W.) for providing
comforts of life)? He said: They were Hafsah and 'A'ishah.
He then made this addition: And the Holy Prophet (S.A.W.)
had taken an oath of remaining away from them for a month,
and when twenty nine days had passed, he visited them.
5.9 INHERITANCE
In a family where a husband is a Muslim and the wife is a
Kitabiyyah, inheritance does not exist between the two. 112 If
any of them dies, there will be no transmission by
1 Al-Imam Muslim, Al-Sahih, English Translation, Sh. Muh ammad Ashraf 1976, Lahore, Pakistan Vol.II p.766-767. 112 Reliance of the Traveller, p.476 246
inheritance. This is clarified by the Prophet (S.A.W.) in
the following hadith:
"A Muslim can not inherit a non-Muslim and a
non-Muslim can not also inherit a Muslim. "113
If it happens that a non-Muslim embraces Islam before
sharing the heritage, he or she will not inherit. This is so
because the people who are supposed to inherit have to be
Muslims at the death time of the one to whom the property
belongs to. Otherwise the one who embraces Islam after his
death will not inherit for he will be suspected to have
embraced Islam in order to inherit.
There is yet another view of Mu'adh ibn Jabal, one of the
companions of the Prophet (S.A.W.), and Ibn Mundhir which
says that a Muslim can inherit a non-Muslim and not vice-
versa. Mu'adh ibn Jabal supported his view by saying that he
heard the Prophet Muhammad (S.A.W.) saying:
114 " Islam increases and does not decrease".
113 Al-Asqalani, Al-H afiz Ab mad ibn 'Ali ibn Flajar (d.852A.H.), Fath AI- Bari sharp Sahli) Al-Bukhciri, Vol.XII p50. 247
It is also reported that he was commanding Muslims to
inherit non-Muslims and not vice-versa. There was also a
case whereby a Muslim and a Jew did confront Mu'adh when
their father, a Jew, passed away. The Jewish son inherited
the whole of his father's property. The Muslim son then
argued against what the Jewish son did. When Mu'adh heard
the story, he shared their father's property amongst them.
Mu'adh ibn Mi'cial also says: "I never saw a good judgement
than that of Mu'awiyah (R.A.). He said: We inherit People of
the Book and they are not supposed to inherit us as is
allowed for us to marry their women but they do not marry
115 ours."
Majority of the companions of the Prophet (S.A.W.) and the
Jurists are of the opinion that a Muslim can not inherit a
non-Muslim and vice-versa. There view is based on the
Prophet's words on the issue which is a clear text on the
subject. The Majority of the Jurists continue to say that
the Hadith, "Islam increases and does not decrease" is not a
clear text on the subject. It is only elaborating that Islam
114 thid
115 AVASIplaili, Ab mad ibn 'Ali ibn Hajar, Fat') Al-Bciri, Vol.XII p.50. 248
is always preferred to other religions. It has nothing to do
with inheritance for there are clear texts on the subject.
The analogy which has been used here that a Muslim is
allowed to marry women of the People of the Book and not
vice-versa, then he is allowed to inherit them and not vice-
versa, this analogy is against the words of the Prophet
(S.A.W.) which is a clear text on the subject. And in
Islamic Law it is said that qiyas (analogy) is not regarded
when it opposes and contradicts a clear text on the same
subject.
Therefore, we can conclude by saying that a Jewish or a
Christian lady can not inherit a Muslim for she is a non-
Muslim and a Muslim can not also inherit her.
However, the rule on inheritance for the children under a
family where the husband is a Muslim and the wife is a
Jewish or a Christian will differ from that of the two partners. If they follow the religion of the father then
they will inherit him and vice-versa. But they will not
inherit their mother who is not a Muslim and the same will apply to her. And if they follow their, mother's religion 249
they will inherit her as she will inherit them. But they
will not inherit their father and vice-versa. Non-Muslims
will inherit each other if they do not differ in their
religions. If they differ in their religion, thus when one
is a Jewish and the other is a Christian, inheritance will
not exist amongst them. This is so because of the Prophet's
(S.A.W.) tradition which says:
"There is no inheritance between people of
different religions. u116
However, it will be better for a Muslim husband to give a
Kitabiyyah some of his property to own before his death so
that she can be able to support her children after his
death.
116 A14. irmiouu,— Al-Imam Abil `Issa Muhammad ibn `isa ibn Sawrah (d.297A.H), Al -Sunan, First Edition 1382A.H\1962A.D, Maktabat Mustafa Al-Babi Al-Halabi, Cairo, Egypt, Vol.IV p.424. 250
Conclusion
Ahl al-Kitab whom the Qur'an and Sunnah has permitted a Muslim man to marry are Jews and Christians. However, some jurists do say that those who follow Scriptures of other Prophets like
Ibrahim, Dawad, Idris e.t.c... are also called People of the
Book and if those who follow them do exist then Muslims are also allowed to marry them.
Although Islam has permitted a Muslim man to marry Al-
Kitabiyyah, it can be unlawful for him to do so if he can not fulfil its conditions which we have explained in chapter three.
It is the same as a Muslim who wants to marry a Muslim woman.
If he does not treat women properly, it will be unlawful for him to marry. The same applies to a Muslim who wants to marry
Al-Kitabiyyah. He has to make sure that there shall not be negative consequences affecting him, the prospective children and the Muslim society as a whole, as a result of the marriage to her. Thus, if for instance, it is feared that the marriage to her might affect the religious inclination of the husband or that she might affect the beliefs and attitude of the
(prospective) children, then it is not right to marry her.
Likewise, marriage to such woman is prevented if it is likely going to affect the Muslim society, such as in the case whereby 251 it is feared that the Muslim women who are not married will be neglected as a result of marrying Kitabiyyat (women of the book) and as such a lot of them will be left without being married, a case which, at the long run will cause moral laxity in the society and natural deprivation to the Muslim women, because they are allowed to marry only Muslim men. And If the
Muslim society in Malawi does not look into this problem properly Muslim women will be deprived from their right to be married and later will fall into the hands of people who are not lawful for them.
This is one of the reasons which made 'Umar ibn Al-Khaltab
(R.A.), the second rightly-guided caliph, to prevent people to marry the women from the People of the Book, during his reign.
It was reported by Abu bakr Al-Jassas in his Tafsir, Ahkam Al-
Qur'an, that Hudhaifah ibn Al-Yaman married a Jewess at Al-
Mada'in and 'Umar (R.A.) wrote to him that he should divorce her immediately. Hudhaifah (R.A.) wrote back inquiring from
`Umar to tell him whether what he did was unlawful, to which
`Umar replied again that: 252
"I am strongly inviting you, before putting down
this letter of mine to let her go (i.e. to divorce
her), for I fear that Muslim (masses) may emulate
you (and do what they see you doing), so they may
choose and prefer the women of Ahl A1-dhimmah, (to
the Muslim women) for their beauty and this may
become a disaster to the Muslim women." 1
This rule has been based on the principle of "There should be neither harming nor reciprocating harm (La zarara wale zirar)", which is a Prophetic tradition.
Though Islam permits a Muslim man to marry a Kitabiyyah, it is unlawful for a Muslim woman to be married by a Kitabi
(Christian or a Jewess man). There is a very simple reason why a Muslim can marry a non Muslim (Christian or Jewish) women but not vise versa. The Muslim accepts Moses and Jesus (Peace be upon them) as both Prophets of Allah, and two of most honoured five Prophets and Messengers. No Muslim is a Muslim until and unless he accepts them. On the other side, a Christian or a
Jewish husband does not acknowledge the prophethood of Muhammad
Al-Jassas, Abilbakr Ab mad ibn 'Ali Al-Razi , A NO m Al-Qur'an , Vol.II p.324-328 253
(S.A.W.). Hence, it is possible for him to demean her prophet and say bad things which a Muslim can never utter towards the
Prophets of Allah.
Usually man is physically stronger than women, and he can use physical force to convert his wife. In many countries law does nothing about domestic violence and other such thing. In these countries, if a wife is beaten and abused by her husband because of her religion, she does not have much choice. Also if the husband and the wife are both strictly religious they both will want their children to follow their religion. In such case the husband again can act violdntly against his wife and force his children to follow his religion. So this is the reason why
Islam does not allow Muslim women to be married by People of the Book. 254
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