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334 views576 pagesThe Distinguished Jurists Primer Vol 2
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Mohammed Zama KhanCopyright
© Attribution Non-Commercial (BY-NC)
We take content rights seriously. If you suspect this is your content, claim it here.
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Great Books of Islamic Civilization
The Center for Muslim Contribution to Civilization
IDE EL yay
Jurist s Primer
VOLUME II
IAM da
MN A aL ey
Ibn Rushd
SPM Glos ee Me tm. e ahr ret
Reviewed by Professor Mohammad Abdul Rauf CONTENTS OF VOLUME Ii
(IN BRIEF)
DETAILED CONTENTS
FOREWORD
ABOUT THIS SERIES
CENTER FOR MUSLIM CONTRIBUTION: TO
CIVILIZATION: BOARD OF TRUSTEES
CENTER FOR MUSLIM CONTRIBUTION TO
CIVILIZATION: BOARD AND ADVISORS
INTRODUCTION
PREFACE
XVII.
XIX.
THE BOOK OF NIKAH (MARRIAGE)
THE BOOK OF 7ALAQ (DIVORCE)
THE BOOK OF AL-ILP
(VOW OF CONTINENCE)
THE BOOK OF Z/HAR
(INJURIOUS ASSIMILATION)
THE BOOK OF LIAN (IMPRECATION)
THE BOOK OF /HDAD (MOURNING)
THE BOOK OF BUY0¢ (SALES)
THE BOOK OF SARF (EXCHANGE)
THE BOOK OF SALAM
(ADVANCE PAYMENT)
THE BOOK OF KHIYAR
(SALE WITH AN OPTION)
THE BOOK OF MURABAHA
(SALE AT STATED COST PRICE)
xxvii
xxix
xxxii
XXxXili
-xlix
1
7
121
127
140
150
153
232
240
250
256 XXIX.
XXX.
XXXI.
XXXII.
CXXIIL,
XXIV.
XXXV.
They said the word’ “orphan” (yatm) is
not applied to anyone except the non-bdligh girl. Others have said the name
orphan is applied to the baligh girl because of the evidence in his (God’s peace
and blessings -be upon him) saying, “Seek permission from the orphan girl”,
and the girl whose permission is sought is one who is capable of consent, and
she is the baligh girl. Thus, their disagreement has another reason and that is
the equivocality (ishtirak) of the word orphan (yattm). Those who have not
permitted marriage through someone other than the father, have argued on the
basis of -his (God’s peace and bléssings be upon him) saying that “the orphan
girl is to be asked about herself”. They said that the minor, by agreement, is
not one of those who grant permission, therefore, denial of the right of persons
other than the father is obligatory. And they may also add that this is the Aukm
of the orphan girl who is capable of giving consent. The case of the minor is
not (expressly) covered by the sharia,
In response to the question whether the guardian, who is not a father, can
contract the marriage of a minor boy, Malik granted permission to the executor
(vast) and Aba Hanifa permitted this to the guardians (amliy@), except that he
granted the minor the option (éhiyar) upon attaining puberty, while Malik did
not make this obligatory. Al-ShafiT said that none other than the father can
contract his marriage. The reason for their disagreement in this is .the
construction of the analogy for those other than the father from the case of the
father. Thus, those who did not find in the person other than the father the
reasons uncovered by itihad that permitted the father to contract the marriage of
one of his minor children, did not permit this, while those who said that such
reasons were to be found for others did permit it. Those who made a distinction
in this between the minor boy and the minor girl were of the view that a male
5 QuPan 4:3 8 THE DISTINGUISHED JURIST’S PRIMER
possesses the right to divorce upon attaining puberty, while the female does not.
For this reason Aba Hanifa has granted both an option upon attaining puberty.
18.2.1.3. Aspect 3: Is the-contract permissible with an option (éhiyar)?
‘The third aspect is whether the contract of marriage is permitted with an option
(khiyar). The majority are of the view that it is not permitted. Abi Thawr said
it is. The reason for their disagreement is the vacillation of the contract of
marriage between sales (buya‘) in which an option is not permitted and those
sales in which it is. We can say that the principle in sales is that there is no
option except when there is a text supporting it, and the burden of proof is upon
one who wishes to establish it. We can also say that the principle is the
prohibition of option in sales and that its basis is hazard (gharar). In marriages
there is no hazard because their object is quality and not measure, and because
the need ‘for option and examination in marriage is more than that in sales. With
respect to delay in acceptance on the part of one of the parties to the contract,
Malik permitted a slight delay, while some prohibited it. Others permitted it in
a manner that the guardian contracts a woman’s marriage without her consent,
but when the information reaches her she permits it. From among those who
prohibited it absolutely is al-Shafit and from those who permitted it absolutely
are Aba Hanifa and his disciples, while Malik distinguished between an
extended and a short delay. The reason for disagreement is whether (the
existence of) acceptance by both parties simultaneously is 2 condition for the
validity of the contract. A similar disagreement is presented in sales.
18.2.2, Element 2: The Conditions of the Contract
+
In this topic there are three sections:
Section 1: Guardians (Amliya”);
Section 2: Witnesses;
Section 3: Dower (sadaq).
18.2.2.1. Section 1: The Guardians (Awliya)
The study of guardians is undertaken from four aspects. First, the stipulation
of guardianship (wilaya) for the validity of marriage. Second, the qualifications
of a guardian. Third, the kinds of guardians, their priority for guardianship,
and related issues. Fourth, the prevention of ward marriages by the guardians
and differences arising between a guardian and his ward. THE BOOK OF NIKAI# (MARRIAGE) 9
3
18.2.2.1.1. Aspect 1: Is guardianship a condition for the validity of the
contract of marriage?
The jurists disagreed whether guardianship is one of the conditions for the validity
of marriage. Malik, in Ashhab’s narration from him, said that there is no marriage
without a guardian and that it (guardianship) is a condition of validity. Al-Shafit
held the same opinion. Abt Hanifa, Zufar, al-Sha‘bi and al-Zuhri said that if a
woman contracts her marriage without a guardian, and with someone of equivalent
status (kuP), it is permitted. Dawid distinguished between a virgin and a
deflowered woman and stipulated the existence of a guardian as a condition in the
case of a‘ virgin, but did not stipulate it in the case of a deflowered woman. The
fourth opinion is Malik’s, as derived from Ibn al-Qasim’s nariatioh, that its
stipulation as a demand is recommended (sunna), but not obligatory. This is
because it is narrated from him that he used to view inheritance among parties
married without a guardian {as valid), and permitted an unchaste woman to
appoint a man as her guardian for her marriage, and he held as recommended that
a deflowered woman present a guardian who could contract on her behalf. Thus,
guardianship for him is one of the complementary demands and not a condition
for validity, as against the statement of Malik’s disciples from Baghdad, who
consider it a condition of validity and not that of perfection. The reason for their
disagreement is the absence of a verse or tradition that is apparent (zahir), not to
say explicit, about the stipulation of guardianship as a condition of marriage. In
fact the verses and traditions that are quoted in practice, by those who stipulate it
as a condition, are all subject to interpretation. Similarly, the verses and traditions
that are quoted in support of its absence as a condition are also not so clear on the
issue. The traditions, besides being unclear in meaning, are disputed as to-their
authenticity, except the tradition of Ibn ‘Abbas, which negates it, but it lacks
persuasive force as the original rule requires freedom from all liability.
We will state the most prominent sources from among those cited for
support by both parties and explain the aspects of probability in them. The
most prominent sources used from the Quran, by those who kiy down
guardiariship as a condition, are the words of the Exalted: “[When] they reach
their term, place not difficulties in the way of their marrying their husbands”.
They said that this is addressed to the guardians. If they had no right of
guardianship how is it that they were prohibited from preverition (of
marriage)? About the words of the Exalted: “And do not marry idolaters till
they believe”, they said that this too is addressed to the guardians. The most
prominent tradition used by them is narrated by al-Zuhri from ‘Urwa from
Aisha that she said, “The Messenger of Allah (God’s peace and. blessings be
6 Quran 2 : 232
7 QuPan 2: 221 10 ‘THE DISTINGUISHED JURIST’S PRIMER
upon him) ‘Any woman who marries without the consent of her guardian,
her marriage is void, void, void, and if the wedding takes place she is entitled
to dower according to her status (mahr al-mithl). And if they should disagree,
then, the sultan is the guardian of whoever is without a guardian’.” It is
narrated by al-Tirmidhi who said it is a fasan tradition.
Among the verses from the Quran and the traditions, used by those who do
not lay down guardianship as a condition, are the words of the Exalted:
“{Tyhen there is no sin for you in aught that they (widowed women) may do
with themselves in decency”.® They maintain that this is proof of the
permissibility of her entering into a contract for her marriage on her own.
They said that in addition to this, the act (of marrying independently) is
attributed to them in several other verses. Thus, the words, “[I]n marrying
their husbands” and “until she hath wedded another husband”.!?
In their reliance on traditions, they argued on the basis of a report by Ibn
‘Abbis, the authenticity of which is agreed upon. It is the saying of the
Prophet (God’s peace and blessings be upon him) that “the deflowered woman
has a greater right over herself than her guardian, and the virgin is to be asked
about herself, and her silence is her consent”. It is on the basis of this tradition
that Dawid argued about the distinction he made between the deflowered
woman and the virgin. These, then, are the best-known evidences put forward
by both parties from the transmitted. texts.
In the words of the Exalted: “[A]nd [when] they reach their term do not
place difficulties in their way of marrying their husbands”,!! there is nothing
more than a proscription for the relatives and residuaries that they may not
prevent her (the woman) from marrying, and from this proscription for non-
prevention it is not understood, either in its metaphorical or actual meaning,
that their (the guardian’s) consent is stipulated for the validity of the contract.
I mean, from any aspect of the apparent or explicit indication of the
communication (kita). In fact, the opposite may be understood from it,
which is that there is no way the guardians can prevent their wards (from
marrying). Similarly, the words of the Exalted: “And do not marry idolaters
till they believe”,!? are better understood as a communication for the rulers
(alal amr) of the Muslims or for all the Muslims collectively rather than a
communication for the guardians. On the whole, it vacillates between being a
communication for the guardians or for the rulers. Thus, those who have
argued on the basis of this verse are under the obligation to explain how the
8 Quran 2 ; 234
% Quran 2 : 232
1 QuPan 2 : 230
1 QuPan 2 : 232
QuPan 2: 221 THE BOOK OF NIKAH (MARRIAGE) Hl
communication is addressed, through its apparent meaning, to the guardians
and not to the rulers.
If it is maintained that it has a general implication, and being general it
includes both rulers and guardians, it will be said that this communication
implies the denial of a right in which the guardians and others are equal, and
their being addressed does not grant them exclusive authority for giving
consent. If we say that it is a communication addressed to the guardians,
making it obligatory that they stipulate their consent for the validity of
marriage, it would nevertheless be an unelaborated (imujmaf) communication
and acting according to it would be difficult as there is fo indication in it
about the kinds of guardians, their qualifications and their grades. The
explanation (bayan) must not be delayed from the time of its need. Had there
been a known Jaw practised on this issue it would have come down through a
collective communal transmission or through a transmission close to it as this
was a point of general need and it is known that there were those in Medina
who had no guardians. In addition, it has not been related from the Prophet
(God’s peace and blessings be upon him)-that he used to administer their
marriage contracts or that he appointed someone who performed this function.
Further, the purpose of the verse is not-to expound the kukm of wildya, but
the (purpose is) to prohibit marriage with the polytheists, men and women.
This is evident—Allah knows best.
‘Aisha’s tradition is disputed with respect to the obligation of acting upon
it. The preferred course is that a tradition disputed with respect to its
soundness does not:give rise to the obligation of acting upon it, and even if we
concede the soundness of the tradition, there is nothing in it beyond the
stipulation of seeking the permission of the guardian by one who has a
guardian, I mean, the female ward. If we concede that it is general for all
women, it does not contain the prohibition for a woman to contract her own
marriage, that is, she cannot ‘herself conclude the contract. In fact, it is evident
from it that if the guardian grants her his permission, it is permitted to her to
form her own contract without there being the stipulation of including the
guardian among the witnesses for the validity of the contract.
The meaning of what is adduced as proof by the other party of the words of
the Exalted, “[TJhere is no sin for you in that which they do of themselves
within the recognized limits”,'4 indicates a prohibition of attributing blame to
them for acting independently to the exclusion of the guardians, and there is
no act through: which ‘a woman -can go against the wishes of her guardian
except the contract of marriage. The apparent meaning of the verse, then,
13 QuPan 2 : 240. Pickthall’s translation has been altered slightly. He uses the word “rights” for
recognized limits, 2 THE DISTINGUISHED JURIST’S PRIMER,
Allah knows best, is that a woman has the right to contract her own marriage
ind the guardians have a right to revoke it if it is not in conformity with her
status. This is the manifest requirement of the law, but none of the jurists has
2xpressed it. Arguing on the basis of a part of a verse and not arguing on the
basis of the remaining part exhibits weakness (of method). There is no
evidence of exclusivity in the verse in attributing the contract of marriage to
them (the women), but the principle is that it is exclusive, unless an evidence
to the contrary is-adduced to contradict this.
The tradition of Ibn ‘Abbas is, upon my life, explicit in indicating the
distinction between a deflowered woman and a virgin, for if permission from
each one of them is to be sought and it is their guardian who supervises the
contract, then, in what, I wish I knew, does the widow have a greater right
over herself than her guardian? The tradition of al-Zuhri would be :better
(understood) if it is considered to be in conformity with this tradition rather
than being in conflict with it. It is probable that the difference between the two
is only to the extent of one being explicit and the other not being so, and
silence is sufficient for the contract.
The proof in the words of the Exalted, “[TJhere is no sin for ‘you in that
which they do of themselves within their recognized limits”,!* indicating that a
woman has a right to form’her own contract, is stronger than the implication of
the words of the Exalted, “And do not marry idolaters till they believe”,'5 which
are claimed to convey that the guardian has the right to conclude the contract.
‘The Hanafites deemed the tradition of ‘Aisha as weak for the reason that it
is a tradition narrated by a group from Ibn Jurayj from al-Zuhri, and Ibn
‘Ulayya related from Ibn Jurayj that he (Ibn Jurayj) asked al-Zuhri about it,
but he did not know of it. They: added: “The:evidence confirming this is that
al-Zuhrt did not make the stipulation of wilaya, nor is wildya upheld in
isha’s opinion.”
They also argued on the basis of the tradition of Ibn ‘Abbas, who said,
“There is’no marriage without a guardian and two Sadi witnesses”. The
completeness of its chain, however, is disputed. In the same manner, they
differed about the tradition concerning the marriage of the Prophet (God’s
peace and blessings be upon him) to. Umm Salama and his ordering her
{young) son to give her away himself in marriage.
The argument of the parties based on reason is equivocal, as it is possible to
say that when discretion (rushd) is found in a woman, it is sufficient for
purposes of the marriage contract, for it is deemed to be so in the case of
financial transactions. It may be said, however, that a woman is inclined toward
4 QuPan 2: 240
4 Quran 2: 221 THE BOOK OF NIKAH (MARRIAGE) 13
men-more than she is inclined toward wealth, and it is for this reason that the
shar has been cautious in interdicting her permanently in: this respect; the
shame that may result from her casting herself in a place out of her status will
most likely affect the guardians. It is, however, sufficient to say here that the
guardians do have a right of revocation and inquiry. The issue is ambivalent, as
you can see, but the point which forces itself upon the mind is that if the
lawgiver had intended the stipulation of guardianship, he would have elaborated
the categories of the guardians, their types, and grades. Delay of the
elaboration, beyond the time of its need, would be harmful. If delay in the
needed explanation is not permitted to him (God’s peace and blessings.be upon
him), especially when the general public need’ requires that the stipulation of
guardianship be transmitted through a general‘communal transmission or in a
manner close to it—and yet it is not transmitted—it makes it necessary to
believe in one of two possibilities: that guardianship is not a condition for the
validity of marriage, and that the guardians have only the right of inquiry in it,
or that if guardianship is a condition, then, the explanation of qualifications,
types, and grades of the guardians is not a condition for its validity, and it is for
this reason that the opinion of those Who nullify the contract by a remote
guardian in the presence of an immediate guardian, is to be deemed as weak.
18.2.2.1.2. Aspect 2: Qualifications and disqualifications for guardianship
With respect to qualifications establishing entitlement, and disqualifications
leading to denial of guardianship, they agréed’ that thie conditions for
guardianship are Islam, bulagh, and being a male; the disqualifications are the
opposite of these, that is, disbelief, minority, and being a female.
They disagreed about three cases: that of the slave, the /asig, and the
prodigal (safik). Most of the jurists inclined toward the prevention of the
slave’s guardianship, but it was permitted by AbG Hanifa. The well-known
opinion in the school about discretion (ruskd)—that is, according to the
majority of the disciples of Malik~is that it is not one of its conditions, I
mean, of guardianship, which was also Aba Hanifa’s: opinion. Al-Shafi@ said
that it is a condition, and an opinion similar to al-Shafi’s was related from
Malik. Al-Shafi’s opinion was also adopted by Ashhab and Abii Mus‘ab.
The reason for disagreement is the similarity of this kind of guardianship
with guardianship over wealth, Those who said that discretion is necessitated
in this kind of guardianship, despite its absence from that over wealth, held
that it is not a condition that he possess discretion in the case of wealth, but
those who maintained that this was impossible ruled that discretion is:a must
for guardianship over wealth. Discretion, in fact, is of two kinds, as you can
see, I mean, the discretion related to wealth is different from discretion
required by the woman in making a choice about proportionality of statis. 4 THE DISTINGUISHED JURIST’S PRIMER
They differed about ‘adala (probity) due to the fact that it is based on
rational inquiry, I mean, in this kind of guardianship, and, therefore, (the
guardian) cannot be trusted, in the absence of ‘adala, to select someone who is
an equal match for her. It is possible to say that the situation (here) in which
guardians make a choice for their wards, of someone with equal status, .is
different from the general meaning of Saddle. Here it is the fear of shame in
case they make the wrong choice. This ‘adala exists naturally, while the other
kind of ‘adala is acquired. The deficient capacity of the slave causes
disagreement about his guardianship, as it does in the case of his ‘adala.
18.2.2.1.3. Aspect 3: Kinds of guardianship
The bases for the kinds of guardianship, according to those who uphold it, are
three: descent, authority, and superior and subordinate clientage. According to
Malik, the qualification of Islam by itself is sufficient for guardianship over one
of a low social status. They differed about the mast (executor). Malik said that
the wast can be a guardian, while al-Shafit prohibited this. The reason for
disagreement is their dispute whether the nature of guardianship is such that
it makes deputization possible. It is for the very same reason that they
disagreed about agency (wakala) in marriage, but the majority upheld it, the
exception being Aba Thawr. There is no difference between agency and
executorship, except that an executor is an agent after death, while agency is
terminated at death.
They disagreed about the priorities in guardianship on the basis of lineage.
According to Malik, guardianship is allocated among residuaries, excluding the
son (in the case of the mother), thus, whoever is the closest from among the
residuaries has the right to be a guardian. The sons, according to him, even if
in the lowest rank of descendants, have a higher priority. They are followed by
the fathers, uncles german, consanguine uncles, sons of the ‘brother german,
sons of consanguine brothers, and the grandfathers on the father’s side, in that
order. Al-Mughira said that the grandfather and his father have a higher
priority than the brother and his son, for he (the brother or his son) is not an
outsider, then come the uncles graded like the brothers, however low in rank,
followed by the client (maw/a) and then by the sultan.
The higher-order client, according to ‘him (Malik), has a right prior to that
of the lower-order client. The executor, according to him, has priority over the
guardian: through lineage, that is, the executor appointed by the father. His
disciples differed about the priority of the father’s executor over a guardian
through lineage. Ibn al-Qasim, in conformity with Malik’s opinion, said’ that
the: executor has a superior right, while Ibn: al-Majishon and Ibn ‘Abd al-
Hakam said that the guardian has a higher priority.
Al-Shafit went against Malik in the guardianship of sons (over their THE BOOK OF NIKAH (MARRIAGE) 15
mothers), and also in the preference of brothers over the grandfather, not
permitting it as a rule, saying.that there is no guardianship for the son. It is
related from Malik that the father has priority over the son, which is
preferable. He said that the grandfather has priority over the brother, which
was also the opinion of al-Mughira. Al-Shafi, on the other hand, considered
the residuaries—the son not being among her residiiaries—due to the tradition
of (Umar: “A woman is not to be married without the consent of her guardian,
or one of her relatives having authority, or of the sultan”. Malik did not take
this into account, in the case of the son, because of the tradition of Umm
Salama “that the Prophet (God’s peace and blessings be upon him) ordered
her son to give her away in marriage himself”, and also because they, that is,
Malik and al-Shafi't, agreed that the son inherits the obligatory guardianship of
his mother (in other matters), and guardianship according to.them is for the
residuaries.
The reason for disagreement about the grandfather is based on their dispute
about who is closer in relationship, the grandfather or the brother.
There are three important issues related to the grades of the guardians.
First, if a remote guardian gives her away in marriage in the presence of the
immediate guardian. Second, if the immediate guardian is absent, is
guardianship then transferred to the remote guardian or to the sultan? Third,
if the father deserts his virgin daughter, is guardianship passed on?
18.2.2.1.3.1, Issue 1: Contract of the remote guardian in the presence of the
immediate guardian
Malik’s opinion differed on this issue. He said once that if the remote guardian
gives her away in marriage, in the presence of an immediate guardian, the
marriage is annulled. On another occasion he said that it is valid. A third time
he said that it is up to the immediate guardian to ratify it or repudiate it:
These different opinions, related from him, apply to cases other than that of
the father and his virgin daughter and that of the éxecutor and his interdicted
ward, as in these cases his opinion is firm that the contract would be
repudiated, that is, in case of marriage through someone other than the virgin
daughter’s father, or by someone other than the executor in the presence of the
executor. Al-Shafit said that no one has the right to conclude.the contract in
the presence of the father irrespective of the bride being a virgin girl or a
deflowered woman.
The reason for disagreement is the dispute whether gradation (of the
guardians) is a kukm shar‘t, that is, established through the law (shar) in the
case of wildya. If it is such a kukm, is it the right of the immediate guardian or
is it the right of Allah? Those who did not consider gradation as a Aukm of law
said that marriage contracted by the remote guardian in the presence of the 16 THE DISTINGUISHED JURIST’S PRIMER
immediate guardian is valid. Those who considered it a hukm of law based
upon the right of the immediate guardian said that the contract is effective to
the. extent that if it is ratified by the immediate guardian it is permissible,
otherwise it is revoked. Those who maintained that it is the right of Allah ‘said
that the marriage is not deemed to have taken place. Some of the jurists within
the school (Malik’s) rejected this interpretation, that is, the contract being void
and not effective.
18.2.2.1.3.2. Issue 2: Transfer of guardianship in the absence of the
immediate guardian
Malik said that if the immediate guardian is absent, guardianship is transferred
to the next guardian. Al-ShafiT said that it is transferred to the sultan. The
reason for their disagreement is the dispute whether absence is equivalent to
death, as they have no disagreement about its transfer in the case of death.
18,2.2.1.3.3. Issue 3: Father absent leaving behind a virgin daughter
There are detailed discussions and disagreements about it within the school
(Malik’s). They refer to the remoteness of his (the father’s) location, prolonged
or short absence, and knowledge or ignorance about his location, as well as the
daughter’s need for marriage, which may be due to the-lack of maintenance,
fear of inadequate protection, or due to both factors cambined.
The school agreed that if the father is absent, having gone to a remote place,
or his location is unknown, or he is a prisoner of war, but the daughter is
protected and provided for, not requiring marriage, she is not to be married
(by the next guardian). If she desires to be married, then, she is to be married
in the ase of imprisonment of her father or when his:location is not known.
They disagreed whether she is to be married when his location is known but
he is in a remote place. It is said that.she is to be married, which is Malik’s
opinion, and ‘it is said that she is not to be married, which is the opinion of
‘Abd al-Malik and Ibn Wahb.
Tn case‘of lack of maintenance or adequate protection, she is to be married
in the three stated situations, that is, in the absence of her father, having gone
to a remote place, liis imprisonment, and in the case of his logation being
unknown. Similarly, when both factors are combined (i.e. lack of adequate
protection and the need for maintenance). If she has inadequate protection, she
is to be married even if she does not demand it. They did not disagree, as far
as I think, that she is not to be married when her father has departed to a
nearby -place and his location is known, .because he can be approached. When
examined on the basis of the interests to be-secured (masalik), it can: be said
that when time is short, and the sultan fears unbecoming conduct from her, he
is to give her away in marriage even if the location (of her father) is close. THE BOOK OF NIKAH (MARRIAGE) 7
If we were to say that the right of the remote guardian subsists even in the
presence of the immediate guardian, and the woman delegates her affair to
both, with both making separate contracts of marriage for her, the possibility
is that one of them preceded the other in concluding the contract or both
finalized the contracts at the same time. It is also possible that the first contract
comes to be known or it may not be known. If the first contract comes to be
known, they agreed that she is (to be declared) the. wife of the husband
through the first contract. This is the case when none of them has
consummated the marriage with her.
They disagreed when the second husband consummates the marriage with
her. One group of jurists said that she is the wife of the first, while another
group said that she is the wife of the second, which is the opinion of Malik and
Ibn al-Qasim. The first opinion was upheld by al-Shafit and Ibn ‘Abd al-
Hakam. If both guardians concluded: the marriages at the same time, there is
no disagreement about the rescission of the contracts, as far as 1 know. The
reason for disagreement in the consideration of consummation is based upon
the conflict of the general meaning with analogy, as it is related that the
Prophet (God’s peace and blessings be upon him) said, “If a woman. is given
away in marriage separately by two guardians, she belongs to the first
(husband) among them”. The general meaning of this tradition requires that
she is the wife of the first husband, irrespective of the second having
consummated marriage with her. Those who took consummation into account
compared it to the consumption of goods in a contract.of a coerced sale, which
is weak. If, however, the first contract was not known, the majority rule for
rescission, while Malik said that it is to be rescinded when none of them ‘has
consummated the marriage. Shurayh said that she is to be given a choice, and
whosoever she chooses is to be her husband. This is a deviant opinion,
although it has also been’ related from “Umar ibn ‘Abd al-CAziz.
18.2.2.1.4. Aspect 4: Removal of guardians
They agreed that the guardian does not have the right to decline his ward’s
marriage, if she desires marriage to a man of equal status and with a dower in
keeping with such status. If he does this, her case will be referred to the sultan
who will give her away in marriage, except when the father is her guardian, about
which there is disagreement in the school. After agreeing on this, they differed
about the meaning of ka/aa that is to be taken into account, and whether sadag
al-mithl (dower. conforming with status) constitutes a part of it. They agreed that
a woman has a right to refuse marriage when a mujbir (coercing) guardian is
forcing her into it and there is no proportionality of status, as in the case of a
father forcing his virgin daughter. This is so, with complete agreement of the
jurists, when the girl has not attained puberty, and with some disagreement in the ‘8 THE DISTINGUISHED JURIST’S PRIMER
cases of a major and a deflowered minor, as has preceded. Similarly, when the
executor is forcing his ward, according to those who hold this opinion.
They agreed that a factor to be considered in kaf@a’is religion, except what
has been related from Muhammad ibn al-Hasan about the climination of the
attribute of religion (in this issue). The school was in agreement that if a
father were to get his virgin daughter married to a drunkard or a fasig, she has
the right to refuse compliance. The judge is to take cognizance of this and to
annul the marriage. Similarly, when he gets her married to a person
possessing wealth that is haram, or one who is knawn to pronounce divorce
very often.
They disagreed about lineage whether it constitutes a part of kaf@a, as they
did about liberty, financial ease, and freedom from bodily defects. It is well
known of Malik that he permitted marriage between the Arabs and the clients,
for which he.argued on the basis of the words of the Exalted, “Lo! the noblest
of you, in the sight of Allah, is the best in conduct”.!© Sufyan al-Thawri and
Ahmad said thar an Arab woman is not to marry a client. Ab Hanifa and his
disciples said that a Quraysh woman can marry only a Quraysh, and an Arab
woman an Arab.
The reason for their disagreement is their dispute over the meaning of the
saying of the Prophet (God’s peace and blessings be upon him), “A woman is
married for her piety (religion), her beauty, her wealth, and her noble descent,
but take hold of piety and-you will be satisfied with what you have”. Some of
the jurists held that only piety is to be taken into account, because of the
words of the Prophet, “But you should marry the pious and you will be
satisfied with what you have”. Others said that noble descent, here, stands for
piety, as does wealth. Nothing, however, can be eliminated from these, except
when excluded by corisensus (ijma‘), as has been done by declaring that beauty
does not constitute an clement of ka/@a. All those who revoke marriage on the
basis of defects maintain that freedom from bodily defects is a part of kafaa,
because of which beauty is taken into consideration, ta some extent.
‘The jurists within the school did not disagree that marriage contracted by a
father for-his virgin daughter may be revoked on the basis of poverty, that is,
when the' groom is poor and unable to maintain her. Wealth, thus, constitutes a
part of kafa. Aba Hanifa does not maintain this opinion. There was no
disagreement in the school about liberty that it is a part of £af@a, because of the
established sunna granting the female slave a right to choose, if she is liberated
(to maintain a pre-liberty marriage or otherwise). About mahr al-mithl, Malik
and al-ShafiT maintain that it is not a part of kaf@a, and the father has the right
to give his daughter away in marriage for an amount less than the mahr al-mithl,
8 Quran 49; 13 THE BOOK OF NIKAH (MARRIAGE) 19
I mean, his virgin daughter. If a deflowered woman possessing discretion agrees
to the amount (of dower),'the guardians do not have a right of interference. Aba
Hanifa said that mahr al-mithl is an essential ingredient of kaf@a.
The reason for. disagreement, with respect to the. father, is their dispute
whether he has the right to reduce-a ‘part of the dower of his virgin daughter.
In the case of the deflowered woman, it is because of their disagreement
whether guardianship is revoked for her with respect to the amount of her
dower, when she possesses discretion, just as it is revoked for all her financial
transactions, or whether guardianship is not revoked (for the amount of dower)
since it is still required in marriage, and: dower is one of its elements. This
opinion would have suited those who stipulate guardianship rather than those
who do not, but the matter has been turned around.
A well-known issue is related to the ahkam of guardianship, which is
whether it is permitted to.the guardian to marry his ward himself? Al-ShafiT
prohibited this on the analogy of a judge and a witness, that is, he does not
render judgment for himself nor does he testify for himself. Malik permitted
it, and ] am not aware of his argument in this, except what is related that the
Prophet (God’s peace and blessings be upon him) “married Umm Salama
when she did not have a guardian”, as her son was a minor, and also :the
established report “that the Prophet (God’s peace and blessings be upon him)
emancipated Safiyya and deemed her emancipation to be her dower”.'? The
principle for al-Shafit about the marriages of the Prophet (God’s peace and
blessings be upon him) is that these were specific to him in the absence of
generalized evidence, and the Prophet enjoys a number of exemptions, -but his
opinion differed in the case of the head of the state.
18.2.2.2. Section 2: Attestation by Witnesses (Shahada)
Aba Hanifa, al-Shafit and Malik agreed that attestation by witnesses is a
condition of marriage. They disagreed whether it was a condition of
completion required over an extended period as to the time of consummation
or a condition of validity required at the time of contract. They agreed that a
Secret marriage was not valid. They disagreed about the witnesses who attest
the marriage contract, but are instructed to keep it secret, whether it amounts
to a secret marriage. Malik said that it is a secret marriage and is to be
rescinded, while Abo Hanifa and al-ShafiG said that it is not secret. The reason
for disagreement is whether attestation is a hukm shar‘t or it serves the purpose
of climinating disputes or denial. Those who held it to be a proscribed Aukm
__'7 In these the Prophet may be said to have exercised his authority as the sultan; however, the same rule
‘ill apply to such an assertion, that is, whether the sultan can rendet judgment for himself, 20 THE DISTINGUISHED JURIST’S PRIMER
said that it is a condition of validity, but those who considered it as attestation
of the contract said that it is a condition of completion.
The source for this is what has been related from Ibn ‘Abbas: “There'is no
marriage without two ‘ad! witnesses and a supervising guardian”. None of the
Companions opposed this, and many jurists considered this to have constituted
ijma‘, which is a weak claim. This tradition has been related as marfi and is
recorded by al-Dar Qutni, who mentioned that among its transmitters are
unknown persons.
The contract can be concluded, according to Abt Hanifa, even through the
attestation of fasigs, as the purpose in his view is only its publicity. Al-ShafiT
is of the view that attestation includes both meanings, that is, proclamation
and acceptance, therefore, he stipulates “adala as a condition. For Malik,
however, it does not comprise proclamation when the witnesses have been
instructed to maintain silence. The reason for their disagreement is whether
the act attested by the witnesses can be designated ‘as secret.
The source for the legality of proclamation is the saying of the Prophet
(God’s peace and blessings be upon him), “Proclaim this marriage and beat the
drums”. It is recorded by Abt’ Dawad.. ‘Umar is reported to have said, “This
is a secret marriage, and had they gone ahead with it [ would have awarded
rajm”.
Aba Thawr and a group of jurists said that attestation by witnesses is net a
condition for the validity of a marriage, neither a condition of validity nor that
of completion, Hasan ibn ‘Alt is reported to have done this. It is related about
him that he married without witnesses and then proclaimed his marriage.
<
18.2.2.3. Section 3: Dower (Sadaq)
The study of dower comprises six points. First, its Auém and elements.
Second, fixing it entirely for the wife. Third, about its division into parts.
Fourth, Tafwid and its huém. Fifth, void dowers and their Aukm, Sixth,
disputes among the spouses over dower.
18.2.2.3.1. Case 1: The hukm and elements
In this section there are four issues. First-is about its kukm. Second, about its
amount. Third, about its species and description. Fourth, about its deferment.
18.2.2.3.1.1. Issue 1: The hukm
In the discussion of its hukm, they agreed that it is one of the conditions of
validity (of marriage), and an agreement to forgo it is not permitted, because of THE BOOK.OF NIKAH (MARRIAGE) 2
the words of the Exalted, “And give unto the women, (whom ye marry) free
gift of their marriage portions”,!® and His words, “{S]o wed them by
permission of their folk, and give unto them their portions in kindness”.!?
18.2.2.3.1.2. Issue 2: The amount
They agreed about its amount that it has no maximum limit, but disagreed
about its minimum limit. Al-Shafit, Ahmad, Ishaq, Aba Thawr, and the
jurists of Medina, among the Tabi‘an, said that there is no minimum limit for
it, and anything that can be a price or value for a thing may be the dower.
This was the opinion of Ibn Wahb, from among the disciples of Malik. A
group of jurists upheld the obligation of fixing the minimum amount of dower,
but they differed about its extent. Two opinions are well known in this. First
is Malik’s opinion and that of his disciples, while the second is that of Aba
Hanifa and his disciples. Malik said that the minimum dower is one-fourth
dinar of gold, or three measured dirhams of silver, or what is equivalent to
three dirhams, that is, dirhams of measure only, according to the well-known
opinion; while it is said that whatever is equivalent to any of them (the
amounts in gold or silver). Abt Hanifa said that ten dirhams is the minimum;
it is said five dirhams, and it is said forty dirhams.
There are two reasons for disagreement over the amount. First is its
vacillation between being a compensation—like other counter-values, in which
mutual consent is taken into account for small or large amounts,.as is the case
in sales—and an act of worship, in which it has to have a fixed time. This is
so, as from the point of view that he (the husband) comes to own her benefits
perpetually, it (dower) resembles compensation, but from the other aspect of
the prohibition of consenting to forgo it by mutual agreement it resembles (an
act of) worship.
The second reason is the conflict of this analogy, requiring fixation, with the
meaning of the tradition, which does not imply fixation. The analogy requiring
fixation is, as we have said, an act of worship, and worship is of a determined
duration. The tradition implying non-fixation is one tradition related by Sahl
ibn Sa‘d al-Sa‘idt, which is agreed upon (by al-Bukhart and Muslim) for its
soundness, and in which it is said “that a woman came up to the Messenger of
Allah (God’s peace and blessings be upon him) and said to him, ‘O Messenger
of Allah, I have bestowed myself to you as a gift.” She, then, waited there (for
an answer) for a long time. A man got up (in the meantime) and said, ‘O
Messenger of Allah, marry her to me, if you do not have a need for her.’ The
Messenger of Allah (God’s peace and blessings be upon him) said (to him),
‘Do you have something that you can grant her as dower?” He replied, ‘I have
Quran 4:4
© Quran 4: 25 22 ‘THE DISTINGUISHED JURIST’S. PRIMER
nothing but this garment (which covers me).’ The Messenger of Allah (God’s
peace and blessings be upon him) said, ‘If you give her that you will be sitting
with nothing to cover you. Search for something.’ He said, ‘I cannot find
anything.’ He (God’s peace and blessings be upon him) said, ‘Find it, even if
it be a ring made of iron.’ The man searched, but could not find a thing. The
Messenger of Allah (God’s peace and blessings be upon him) said, ‘Do you
possess (memorize) anything from the Qur’an.’ The man said, ‘Yes, such and
such s@ra (which he named).’ The Messenger of Allah said, ‘I hereby marry
you to her with what you have-of the Quran’. ”
They said that the words of the Prophet, ‘Find it, even if it be a ring made
of iron’, are an evidence that there is no minimum limit for it, and had there
been such-a limit, he would have mentioned it, as a delay in explanation is not
permissible from the time of its need. This evidence is manifest, as you can
see, along with the fact that the analogy upheld by those who maintain fixation
does not have sound premisses. This is so, as it is constructed upon two
premisses. First, that dower is an act of worship. Second, that worship must
have a fixed time. In each the contender has an objection, which is that there
have been laid down in the shar kinds of worship that have no fixed duration,
but what is required is the least that can come under the term “ibada.
Moreover, it (dower) docs not have any pure (real) resemblance with (acts of)
worship.
Those who preferred’ this analogy maintained that the tradition may have
been specific to the man in the case, because of the words of the Prophet, ‘I
hereby marry her to you with what you have of the Qur’an’, This is against
the principles (of interpretation). Though in some versions of this tradition he
told him to, ‘get up and teach her’, what he possessed of the Quran, after
which the man got up and taught her. It, thus, turned into a marriage on the
basis of wages. Yet, when they (these jurists) sought to find a basis for the
measure of the dower, they did not find a resemblance better than the
minimum scale for amputation due to theft, on the basis of which they could
construct their flimsy analogy for fixation of the amount of dower.
The analogy they employed’is that it (the female organ here) is a limb that
becomes permissible in return for wealth, therefore, it is necessary that it be
determined on the basis of amputation (like theft). The weakness of their
analogy is evident from the wrong assumption of the existence of a mushtarak
term, but amputation is different from intercourse; further, amputation has
been allowed, even required, as a punishment, involving infliction of pain, and
loss of a limb, while that permission is for pleasure with affection.
Furthermore, giyds al-shabah, despite its weakness, is that the factors of
resemblance on the basis of which the as/ (original case) and the far‘ (case in
issue) are being compared are the same not through denotation but in THE BOOK OF NIKAH (MARRIAGE) 3B
meaning, and the Auém is based in the original case on resembling features, but
all this is missing from this analogy. Further, it is a resemblance that is not
even indicated through a common term (denotation). It is a type of analogy
that is rejected by recognized jurists. These jurists, however, did not employ
this analogy for the fixation of dower, in the face of the implication of the
tradition that they used to determine what the amount of the fixation would
be. The analogy that they employed in opposition to the tradition is stronger
than this.analogy.
Non-fixation is evidenced by the tradition recorded by al-Tirmidht “that a
woman was married for a pair of sandals. The Messenger of Allah (God’s
peace and blessings be upon him) said to her, ‘Are you content, in return for
yourself and your wealth, on a pair of sandals?’ She said, ‘Yes.’ He, therefore,
declared her marriage permissible.” Al-Tirmidht says that it is a sound and
hasan tradition,
After agreeing about the fixation of dower, on the basis of analogy on the
minimum scale for theft, those who upheld it, disagreed in accordance with
their disputes over the amounts of the minimum scale in the case of theft.
Malik said that it is one-fourth of a dindr or three dirhams, as that is the scale
for theft, according to him. Abt Hanifa said that it is ten dirhams, as that is the
scale according to him. Ibn Shubrama said that it is five dirkams, for that is the
minimum scale (for theft) in his view.
The Hanafites argued, for the fixation of dower at this amount, on the basis
of the tradition related by.them from Jabir from the Prophet:(God’s peace and
blessings be upon him) that he said, “There is no dower less than ten
dirhams”. Had this been established, it would have eliminated the point of
contention, for it would become necessary to construe the tradition of Sahl ibn
Sa‘d as limited to its specific content (to its case), but this tradition of Jabir is
weak, according to the traditionists. They relate it from Mubashshir ibn
“Ubayd from al-Hajjaj ibn Arta‘a from ‘At from Jabir, but Mubashshir and
al-Eajjaj are considered weak narrators, while “Au? had not met Jabir. It is,
therefore, not proper to oppose the tradition of Sahl ibn Sa‘d with this
tradition.
18.2.2.3.1.3. Issue 3: The species
With respect to its specics, it is anything that may be lawfully owned and can
‘be a compensation. About this they disagreed on two occasions: marriage
through hire and consideration of manumission of a slave-woman as her
dower. About marriage through hire, there are three views in the school: an
opinion permitting it, an opinion prohibiting it, and an opinion considering it
abhorrent. The best-known opinion from Malik is (about) its abhorrence. It is
for this reason that he considers it revoked prior to consummation (seclusion). 24 THE DISTINGUISHED JURIST’S PRIMER
Tt was permitted, among his disciples, by Asbagh and Sahnan, which was also
al-Shafif’s opinion: It was prohibited by Ibn al-Qasim and Aba Hanifa, except
in the case of a slave, which was permitted by Aba Hanifa.
The reasons for their disagreement are two. First is their dispute over the
question whether the shar‘ of those before us is binding upon us, till evidence
indicates their remission, or whether the matter is the other way round, Those
who said that the earlier laws are binding permitted it (marriage through hire)
due to the words of the Exalted, “He said: Lo! I fain would marry thee to one
of these two daughters of mine on the condition that thou hirest thyself to me
for (the term of) cight .pilgrimages”.?" Those who said that they are not
binding upon us maintained that marriage through hire is not permitted. The
second reason is whether an analogy for marriage can be constructed upon
hire. This is so, as #Zra has been exempted from the rule prohibiting uncertain
sales involving gharar (and analogy cannot be based upon an exemption). It is
for this reason that al-Agamm and Ibn “Ulayya have opposed it, for the
principle of mutual exchange requires a determined tangible thing in licu of
another tangible thing, while sjara involves a tangible thing facing which are
movements or actions that are not definable or stable or measured. The fugah@
have, therefore, differed about (the time) when the wages of #ara.are due from
the hirer,
The fugak® of the provinces, except for Dawod and Ahmad, have
prohibited that manumission be considered as dower. The reason for
disagreement is the clash of a tradition, laid down on this issue, with the
general principles, that is, the tradition established from the Prophet (God’s
peace and blessings-be upon him) “that he manumitted Safiyya and deemed
her emancipation to be her dower”, which bears the likelihood of being specific
to his Case,' because of there being many: specific rulings for him in this part of
the law. The reason for its divergence from the principles is: that manumission
is the alienation of ownership, and alienation does not include the
permissibility of the thing from another case: when she is emancipated she
comes to own herself. How, then, can marriage be binding upon her? It is for
this reason that al-Shafi said that if she is repelled by her marriage to him,
she owes him her price; as he was of the view that she has caused him to’ lose
her value, since he has destroyed her (value) by stipulating the condition of
utilizing her. All this, however, cannot be attributed to the act of the Prophet
(God’s peace and blessings be upon him), for had it not been permitted to
others besides him he would have explained it. The principle is that his acts
are binding upon us, except when there arises evidence indicating their being
specific-to him.
1 QuPan 28 : 27 THE BOOK OF N/KAH (MARRIAGE) 25
For the specification of dower, they agreed about the conclusion of
marriage for a determined and specified counter-value, that is, determined as
to species and amount by description. They disagreed about dower that is
unspecified and undetermined, like one saying, “I have married you for a
slave or a servant,” without a specification that determines his price or value.
Malik and Abt Hanifa said that this is permitted, while al-ShafiT said that it
is not. When a marriage takes place in this way, then, according to Malik, she
is entitled to an average value of what has been named, while Abu Hanifa said
that he is: forced to pay the value (whatever it is). The reason for their
disagreement is whether marriage, inthis case, resembles sale with:the intent
of being based on bargaining, or that it docs not acquire this state, and the
intent is for something else, that is, affection. Those who considered it to-be
based upon frugality with similarity to a sale said that just as a sale is not
permitted for. an unspecified thing, similarly, marriage is not permitted.
Those who held that it does not resemble it, as the intention is to be noble,
said that it is permitted.
A group of jurists did not permit deferment (of the dower) at all, while some
did‘recommending that he advance part of it, at or before consummation, which
is Malik’s opinion. Some of the jurists who permitted deferment did’ so for a
limited period and for an amount in proportion to it, which is also Malik’s
opinion, Among them were those who permitted deferring it till separation by
death or divorce whéf it becomes due, which is a/-Amza‘i's opinion. The
reason for the disagreement is whether marriage resembles sale in deferment.
Those who said that it does, did not permit deferment till death or divorce, but
those who said that it does not resemble it permitted such deferment. Those
who.disallowed deferment considered marriage as‘an act of worship.
18.2.2.3.2. Case 2: Entitlement to dower
The jurists agreed that the entire sada%q becomes due by consummation or
death. The basis for its becoming due in the entire amount, following
consummation, are the words of the Exalted, “And if ye wish to exchange one
wife.for another and ye have given unto one of them a sum of money (however
great), take nothing from it”.2" 1 cannot recall transmitted evidence, at the
moment, about its obligation upon:death (before consummation), except the
occurrence of ima‘ over it. .
They disagreed whether consummation for this purpose implies copulation
or it merely means being in seclusion” with her, which they call drawing of
4 QuPan 4: 1%
2 The term “sechusion” is being used here to describe a situatio’ after marriage (nikaf) in which the 26 THE DISTINGUISHED JURIST’S PRIMER
the curtains. Malik, al-Shafit and Dawid said that only one-half dower
becomes due with mere seclusion, unless there is intercourse. Abt’ Hanifa said
that (full) dower becomes due with seclusion itself, unless he was in a state of
ihram, ill, fasting in Ramadan, or she was menstruating. Ibn Abi Layla said
that full dower becomes due with seclusion, and added no other stipulation.
The reason for their disagreement is the clash of the verdicts of the
Companions in this case with the apparent meaning of the Book. This is so as
Allah, the Exalted and Glorious, has laid down a proscription in the case of a
woman whose marriage stands consummated that it is not permitted to take
back anything from her dower, as in the words of the Exalted, “How can ye
take it (back) after one of you hath gone into the other, and they have taken a
strong pledge from you”.* And He stated in the case of a woman divorced
before consummation that she has one-half of the dower, thus, the Exalted
says, “If ye divorce them before ye have touched them and ye. have appointed
unto them a portion, then (pay the) half of that which ye appointed”.24 These
are explicit, as you can-see, in each of the two situations, that is, before
touching and after it, and there is no state in between the two. Thus ‘the
apparent obligation created by this is that (full) dower does not-become due
without touching, and touching here, as is obvious from it, is intercourse. It
may be construed, however, that “touching” is used here in its normal
denotation, not as a polite hint for intercourse, and, perhaps, .this is how the
Companions interpreted it. It is for this reason that Malik has said that an
impotent person: is obliged to pay her the delayed dower, if he divorces her
after spending a long period with her; he, thus, fixed it for him without
intercourse having any effect upon the obligation of dower. The ruling
recorded from the Companions about this is that whoever closes the door
behind him or lets down the curtain is obliged to pay dower and no one
opposed them in what they decided.
In this topic, those who stipulated touching differed about a case in which
the occurrence of touching is disputed. This occurs, for example, when she
claims “touching” and he denies it. The well-known opinion of Malik is that
the acceptable statement is hers. It is, however, said that if it was seclusion with
married couple has the opportunity for sexual intercourse, but it may not actually take place. The term
“consummation” is being used to denote actual sexual intercourse. The distinction is important for
understanding the opinions of the jurists, some of whom maintain that mere seclusion, without sexual
intercourse, gives rise to the entitlement to dower, while others say that sexual intercourse must have taken
place for such entitlement. “Seclusion” occurs after the wedding ceremony; however, wedding may not
necessarily lead to sexual intercourse or even to “seclusion.” The use of the term “wedding” is likely to lead
to confusion, It is, therefore, being avoided.
Quran 4:21
% Quran 2 : 237 THE BOOK OF NIKAH (MARRIAGE) 27
residence (after marriage), she is to be considered truthful, but if it was merely
a visit she is not. It is also said that if she was a virgin, she is to be examined
by women. In this case, therefore, three opinions are arrived at in the. school.
Al-Shafit and the Zahirites said that it is his statement that is acceptable, for he
is the defendant. Malik, on the other hand, does not give weight to the
obligation of oath being upon the defendant in so far as he is the defendant, but
to the stronger prima facie case. It is for this reason that he prefers the
statement of the plaintiff on many occasions when he has a stronger prima facie
case. This refers to whether the obligation of oath being on the defendant has
an underlying reason; similarly, the discussion about the obligation of testimony
upon the plaintiff, which will be coming up under its own heading.
18.2.2.3.3. Case 3: Division of dower
They agreed generally, when a man divorced (his wife) prior to consummation,
and he had fixed a dower, that she has recourse to him for one-half dower,
because of the words of the Exalted “If ye divorce them before ye have
touched them and ye have appointed unto them a portion, then (pay the) half
of that which ye appointed”. The study of division of dower relates to three
principles: its basis in marriages; the underlying cause of division in different
kinds of divorce, that is, those occurring prior to seclusion; and the changes
occurring in it before divorce.
Its basis in marriages, according to Malik, is the validity of a marriage, that
is, divorce should have taken place prior to seclusion in a valid marriage.
There are two opinions about an irregular marriage, if-separation in it does not
amount to rescission, and when the husband divorces before rescission. The
cause of division is divorce that is pronounced voluntarily by the husband, not
on her volition, like the divorce that takes place before she discovers a defect
found in him. In this topic they disagreed about the division having as a cause
her pressing demand for dower of for maintenance, when he is in difficult
straits; there being no difference between residence when he has a defect and
between this and the case of her displeasure because of his defect.
There is no disagreement about rescission, that do¢s riot amount to divorce,
that it does not give rise to sharing of the doWer, When the rescission is based
upon (a defective) contract or upon (the species of) dower, and generally upon
the absence of the requisites of validity, in which she does not have a choice at
all. In rescissions that are the result of external contingencies affecting a valid
contract, like apostasy or fosterage, if none of them: has a choice in it, or she
has it but not he, division is not binding; if, however, he has a choice in it, as
% QuPan 2 : 237 28 ‘THE DISTINGUISHED JURIST’S PRIMER
in apostasy, division becomes obligatory. The ruling to which the opinions of
the Zahirites lead is that division is obligatory in each divorce occurring before
residence is taken up, whether its cause is attributed to him or to her, but in-a
rescission, not amounting to a divorce, there is no division.
The reason for disagreement is whether it is a practice (sunna) that has an
underlying rational cause. Those whe said that it has a comprehensible
meaning, which is that one-half dower becomes due to her, in compensation
for her lest right through the return of her commodity and being forced to
return the price—as is done by a purchaser; however, marriage differs from
sale in this respect and compensation is awarded to her for this (offended):
tight—{they) upheld that if the cause of divorce arises from her, nothing
should be given to her, for she has eliminated any coercion that would have
been caused to her by him for returning the price and taking back the
commodity. Those who maintained that it is a sunva not based on a rational
reason, and followed the apparent meaning, said that division (into one-half) is
binding in each divorce, whether caused by him or by her.
The changes made in the dower, before divorce, may be either from her or
from Allah. Those that are from Allah may take one or more of four forms: loss
of the whole, reduction, increase, or reduction and increase combined. Those
emanating from her may be in the form of disposal by her through consumption
as sale, manumission, or donation, or in the form of a disposal for her own benefit
or for the preparation of a dowry with it for her groom. According to Malik, both
of them share in the case of loss, or increase or reduction. According to al-Shafit
he has recourse to her for half in the case of reduction and loss but he does not
claim half from her in the case of increase. The reason for their disagreement is
whether the woman comes to own the dower firmly prior to seclusion or death (of
her husband). ‘Those who-said that she does not own it through an indisputable
ownership maintain that she is a co-owner in it, as long as.she does not
transgress, and’ shares in the benefits with him. Those who said that, she owns it
through an indisputable ownership, and that division is an obligatory right, force
her to return all that has been fost in her possession. Further, after the
establishment of ownership they have recourse to her for all that passed on to her.
They did not disagree that if she disposes of the revenue, she is liable for
one-half, but they disagreed if she purchases with it things necessary for the
dowry, as is customary, whether recourse to her is for one-half of what she
purchased er for one-half dower, which is the price, Malik said that he has
recolirse to her for one-half.of what she purchased, while Aba Hanifa and al-
Shafi said that he has recourse to her for one-half of the price, which is the
dower,
Under this topic they differed about a well-known case that relates to
transmitted (texts), whether the father has the right to forgo one-half déwer of THE BOOK OF NIKAH (MARRIAGE) 29
his virgin daughter, or the master of his female slave, that is, if-she is divorced
prior to seclusion? Malik said that he has.the right, while Aba Hanifa and al-
Shafit said that he does not. The reason for their disagreement is the
equivocality in the words of the Exalted, “Unless they (the women) agree to
forgo it, or he agreeth- to forgo it in whose hand is the marriage tie”.2* The
word “forgo” (ya‘fi), it is said, may mean, in the usage of the Arabs, “to
forgo” or “to gift.” Also, the pronoun in the words of the Exalted, “in whose
hands is the marriage tie”, may refer to the guardian or the bridegroom. Those
who maintained that it is the bridegroom, deemed the meaning to be “gift”,
while those who said that it is the guardian, considered it to. mean “forgo”.
Some of the jurists adopted a deviant view saying that cach guardian has the
right to forgo one-half of the dower that is obligatory for the woman. It
appears that both constructions of the meaning of the verse are equal.
However, those who considered the subject to be the bridegroom did not
assign an additional fukm to the verse, that is, ari additional law, for its
permissibility is known through the logical necessity of the law. Those who
rendered it as the guardian, either the father or someone else, assigned an
additional law. It is necessary for them to come up with evidence indicating
that the verse applies primarily to the guardian rather than the bridegroom,
which is a difficult feat.
The majority maintain that a minor and an interdicted girl do not have the
right to forgo one-half of the dower to which they are entitled. Some jurists
maintained a deviant opinion saying that it is permitted pursuing the general
meaning of the words of the Exalted, “Unless they (the women) agree to forgo
it”. In this topic they differed when a woman gifts her dower to her husband
and is then divorced prior to seclusion. Malik said that he cannot have
recourse to her for any part of it, while al-ShafiT-said that he can claim one-
half from her. The reason for their disagreement is whether the half to which
the husband is entitled through divorce is linked to the actual dower itself or
it can be a liability for the woman? Those who said that it is linked to the
actual-dower, maintained that he cannot have recourse to her for any part of it,
for he had taken possession of the entire dower. Those who said that it has
become the woman’s liability maintained that he has recourse to her if she had
gifted it to him, as if she had made a gift to him of some other wealth of hers.
Abo Hantfa made a distinction in this issue on the basis of taking possession
and not taking possession: if she had taken possession of it, he has recourse for
one-half, but if she had not taken possession when she made. the gift, he
cannot have anything. It was as if he maintained that the right is associated
Queen 2; 237
® Quran 2 : 237 30 THE DISTINGUISHED JURIST’S PRIMER
with the thing as long as possession has not been taken, thus, when she takes
possession, it becomes a liability.
18.2.2.3.4. Case 4: Tafwid
They agreed that marriage (contracted) through tafirid is permitted, which is
the conclusion of the contract of marriage without sedaq (dower), because of
the words of the Exalted, “It is no sin for you if ye divorce women while yet
ye have not touched them, nor appointed to them a portion”.?8 The jurists
disagreed about this on two points. First, when the wife demands the fixation
of dower, with no agreement about the amount. Second, when the husband
dies without fixing it. Does she get the dower in either case?
18.2.2.3.4.1. Issue 1: When the woman demands fixation of dower
A group of jurists said that an amount equivalent to her.status is to be awarded
to her, and the husband has no option in this. If he divorces her after the
verdict, some of these jurists said that she is entitled to one-half dower, while
some of them said that she is not entitled to anything, as fixation did not take
place in the contract itself, which is the opinion of Abi Hanifa and his
disciples. Malik and his disciples said that the husband has three choices: he
may divorce her without fixation, he may fix the amount demanded by the
woman, or he may fix sadaq al-mithl, which becomes binding upon her.
The reason for their disagreement—that is, among those who determine
mahr al-mithl for her without granting an option to the husband when he
divorces her after her demand for fixation and those who de not determine
such dower—is over the meaning of the words of the Exalted, “St is no sin for
you if ye divorce women while yet ye have not touched them, nor appointed
unto them a portion”,?? whether they are to be construed generally as
conveying the dropping of sadaq, irrespective of the cause of divorce arising
from their dispute over sedaq. Further, whether the absolution from
responsibility (from sin) is to-be construed as the dropping of dower under all
circumstances. This is subject to interpretation, though the obvious meaning
implies dropping it under all circumstances due to the words of the Exalted,
“Provide for them, the rich according to his means, and the straitened
according to his means, a fair provision”.° There is no dispute, as far as I
know, that if he divorces her, right in the beginning (without the discussion of
dower), there is no fiability upon him. It was logical for the person, who fixed
3 Quran 2 : 236
QuPan 2 : 236
# Quran 2 : 236 ‘THE BOOK OF N7KAH (MARRIAGE) 3h
muta for her along with half of mtahr in case he divorces her before seclusion
after a marriage not based upon tafwid, and fixed mahr al-mithl for her in
tafwtd, to fix, along with muta, a part of mar al-mithi, as (the meaning of} the
yerse does not indicate the dropping of dower in a tafwid marriage, it only
permits divorce prior to the fixation of dower. If the tafid marriage gives rise
to the liability of mahr af-mithi, when demanded, it is necessary that it be paid
in part if divorce is pronounced, just as it is rendered in part when fixed. It is
for this reason that Malik held that mehr al-mithi does not become binding
along with the option granted to the husband.
18.2.2.3.4.2. Issue 2: When the husband dies before fixing sada and prior to
consummation of marriage
Malik, his disciples, and’ al-Awz4% said that she is not entitled to sadag, but
only to mué‘a and to inheritance. Aba Hanifa said that she is entitled to sadaq
al-mithl and to inheritance, which was also the opinion of Ahmad and Dawid.
Both opinions are related from al-Shafit, except the opinion supported by his
disciples is the one similar to Malik’s.
The reason for their disagreement is the conflict of giyas with a tradition.
The tradition is related from Ibn Mas‘td who, upon being asked about this
issue, said: “ ‘I base the verdict on my own opinion, if it happens to be correct
it is from Allah, but if incorrect it is from me. I hold for her sadaq equivalent
to that paid’ to women of her status, neither less nor more, and she has to
undergo the waiting period and is-entitled to inheritance.’ Ma‘qal ibn Yasar al-
Ashjaq, then, got up and said: q bear witness that you have decided in
accordance with the judgment of the Messenger of Allah (God’s peace and
blessings be upon him) in the case of Barwa‘ bint Washiq.’ ” It is recorded by
Aba Dawid, al-Nasa‘, and al-Tirmidhi, who declared it to be sabih. The
analogy opposing this is that sadaq is a compensation, and as he has not.taken
delivery of the counter-value he should not be liable to compensation, on the
analogy of sale. Al-Muzant has related from al-ShafiT on this issue that if the
tradition of Barwa‘ is proved authentic, there is no force in any one’s opinion
with the existence ofa a sunna. (Ibn Rushd:) What he has said is correct, Allah
knows best.
18.2.2.3.5. Case 5: Fasid dowers
Dower is void either in itself or because of an attribute traceable to gharar or
to an impediment. The dower that is void in itself may be in the form of wine
(khamr), swine (khinzir), or a thing that cannot be lawfully owned. The dower
that is void because of gharar or an impediment derives its principles from
sales. There are five well-known issues in this. 32 THE DISTINGUISHED JURIST’S PRIMER
18.2,2.3.5.1. Issue 1
If dower consists of khamr, khinzir, fruit that has not yet begun to ripen, or a
stray camel, Aba Hanifa is of the opinion that the contract is valid if it
contains a provision for mahr al-mithl. From Malik there are two narrations
about it. First, the invalidity of the contract and its rescission before seclusion
and after it, which is also Aba “Ubayd’s opinion. Second, that if the marriage
is consummated, the contract is effective and she has (the right to) mafr al-
mithl.
The reason for their disagreement is whether the hukm of marriage is the
-same as the kukm of sale? Those who held that its Aukm is the same as sale said
that marriage becomes void with the fasad of dower, just as a sale becomes void
with the fasad of the price. Those who maintained that the validity of dower is
not a condition for the validity of marriage, upon the evidence that fixation of
dower is not a condition for the validity of the contract, said that marriage is
effective and becomes valid with the mafr al-mithi. The distinction based upon
the occurrence of seclusion and its absence is weak. Malik’s principles lead to
the fact that a distinction be made between dower that is prohibited in itself
and that which is prohibited due to an (external) attribute, upon the analogy of
sale. I do not remember, at this moment, a recorded statement about it.
18.2.2.3.5.2. Issue 2
They disagreed when a sale is associated with dower, like her giving him a
slave in return for a thousand dirhams that he gives her for dower along with
the price of the slave and does not distinguish the price from the dower. Malik
and Ibn al-Qasim prohibited such mixing, and it was also the opinion of Aba
Thawr. Ashhab permitted it, which was also AbO Hantfa’s opinion. ‘Abd Allah
made a distinction’ in this saying that if one-fourth dimdr or more clearly
remaing after accounting for the sale, it is permitted. Al-Shafi@’s opinion
differed in this, for he said once that it is permitted, while he said on another
occasion that there is mahr al-mithl in it.
The reason for their disagreement is whether marriage has a resemblance
with sale for this purpose. Those who held it similar to sale disallowed it,
while those who permitted a degree of uncertainty in marriage, of a kind that
is not permitted in sale, said that it is allowed.
18.2.2.3.5.3, Issue 3
They differed, into three opinions, about the person who gives a woman away
in marriage stipulating for the husband a dower in the shape of a gift that is
presented to the (girl’s) father. Abii Hantfa and his disciples said that the
condition is binding and the marriage is valid. Al-ShafiT said that the dower is
void and she is entitled to sadaq al-mithi, Malik said that if the condition is ‘THE BOOK OF NIKAH (MARRIAGE) 3
stipulated at the time of the contract it (the gift) is for his daughter, ‘but if it
is stipulated after the contract it is for him.
The reason for their disagreement is the similarity of marriage to sale. Those
who compared him (the father) to an agent contracting a sale, while a gift is
stipulated for him said that nikeh is not permitted, just like the sale is not
allowed. Those who considered nikah to be different from sale said that it is
permitted. In the distinction drawn by Malik, he held him.to be subject to blame
when the condition is included in the contract of marriage, for what he has
stipulated for himself amounts to a reduction in the value of the dower, but he
does not subject him to blame when it occurs after the conclusion of the contract
with agreement over the dower. Malik’s opinion is the same as that of Umar ibn
Abd al-‘Aziz, al-Thawri, and Abii Ubayd. Abo Dawad, al-Nasa, and Abd al-
Razziq have recorded from ‘Amr ibn Shu‘ayb from his father from his
grandfather that he said, “The Messenger of Allah (God’s peace and blessings be
upon him) said, ‘When a woman is married for a gift prior to the conclusion of
the contract of marriage, the gift belongs to her, but what takes place after the
contract of marriage, it belongs to whom it has been given. The best favour
extended to a man is that which is given out of respect for his daughter or his
sister” ” ‘Amr ibn Shu‘ayb’s tradition is disputéd in So far as he distorted it, but
Malik’s opinion is categorically stated. Aba ‘Umar ibn Abd al-Barr said that
when a tradition is reported by trustworthy persons it is to be acted upon.
18.2.2.3.5.4, Issue 4
They disagreed about dower that involves the right of a.third party or is.found
to be defective. The majority said that the marriage is confirmed. They
disagreed, however, whether she has recourse to him for its value, a substitute,
or for mahr al-mithl. Al-Shafis opinion differed in this; he held it once to be
the value, and at another time as mahr al-mith. Similarly, the school (Malik’s)
differed about it. It is said that she has recourse for the value, and it is also
said that she has recourse for mahr al-mithl. Abt al-Hasan al-Lakhmi said that
if it is held to be the lesser of the two, the value or mahr al-mithl, it would be
the correct standpoint. Sahnin deviated from this saying that the contract is
void. The basis for disagreement is whether the contract of marriage resembles
the contract of sale. Those who held it to be similar said that it is rescinded,
while those who did not-hold it to be similar said that it is not.
18.2.2.3.5.5. Issue 5
They disagreed about the person who marries a woman agreeing that if he (the
bridegroom) has no wife the dower is one thousand (units), but if he has a wife
already the dower is two thousand. The majority upheld its validity. They
disagreed about the obligation arising in this. One group of jurists said that the 4 ‘THE DISTINGUISHED JURIST’S PRIMER
condition is valid and she is entitled to dower in accordance with the
condition. Another group of jurists said that she is entitled to mahr al-nithl,
which is the opinion of al-Shafit and was also upheld by Aba Thawr, but he
said that if he divorces her before seclusion she is only entitled to mut’. Abi
Hanifa said that if he has a wife already she (the new wife) is entitled to one
thousand (units), but if he does not have a wife she is entitled to-mahr al-mithl
as long as it is not more than two thousand (units) nor less than one thousand.
From these an opinion can be derived that the contract is revoked because of
gharar, but I do not remember at the moment a recorded statement about this
verdict in the (writings of the) school.
These are their well-known opinions upon the subject, though the cases
under it are many. They disagreed about the attributes on the basis of which
mahr al-mithl is determined, when it is awarded in such cases. Malik said that
her beauty, status, and wealth are to be taken into account, while al-ShafiT said
that it is to be determined in the light of the dower of women, from among her
residuaries. Abii Hanifa said that all the women related to her are to be taken
into account, whether her residuaries, or others. The basis for the
disagreement is whether similarity pertains to status only or to status, wealth,
and beauty, because of the words of the Prophet (God’s peace and blessings be
upon him) “A woman is married for her faith, beauty, and descent”.
18.2.2.3.6. Case 6: Disagreement among spouses over dower
Their disagreement may either be about possession, amount, category, or time,
that is, the time of obligation. If they differ about the amount, with the woman
saying, fer example, that it was two hundred and the husband saying that it
was one hundred, the jurists disagree extensively about this case. Malik said
that if the disagreement arises prior to seclusion and both the bride and the
bridegroom make credible claims, then, both are to be asked to take oaths and
to revoke the contract. If'one of them takes the oath, while the other refuses,
the statement of the one taking the oath will be accepted. If both of them
refuse, it will be considered as if both had taken the oath. The statement
appearing more likely will be accepted. If the dispute arises after seclusion, the
acceptable statement will be the husband’s, but a group of jurists said that the
acceptable statement will be the husband’s along with his oath. This was the
opinion of Aba Thawr, Ibn Abr Layla, Ibn Shubrama and a group of jurists.
Another group of jurists said that the acceptable statement will be that of the
wife to the extent of the mahr al-mithl, and that of the husband to the extent
of the excess over the mehr al-mithl. A third group of jurists makes them take
oaths in case of dispute and makes them revert to mahr al-mithl without
rescinding the contract, unlike Malik’s opinion. This is the opinion of THE BOOK OF NIKAH (MARRIAGE) 35
al-Shafi, al-Thawri and a group. It is also said that she is made to have
recourse to mahr al-mith! without taking an oath, as long as the sadaq al-mithl
is not more than what she is claiming or less than what he is asserting.
Their disagreement is based upon their differing understanding of the
words of the Prophet (God’s peace and blessings be upon him), “(The burden
of) testimony is upon the plaintiff, while the one who denies is to take the
oath,” whether it has an underlying rational reason. Those who maintained
that it has an underlying reason said that the one who has a stronger prima
facie claim is to take the oath, always, but if their claims are equal (in
strength) they are both to take the oath and the contract is rescinded. Those
who maintained that it does not have an underlying cause said that the
husband is to take the oath as the right is claimed by her, and she is claiming
an amount in excess of his statement; he is, therefore, the defendant. It is;
however, said that they are both to take.the oath, always, as each one of them
is a defendant, ‘but this is held by those who do not take into account the
probabilities: There is disagreement about this in the school. Those who
maintained that the acceptable statement is hers to the extent of mahr al-
mithl, or his when in excess of the makr al-mithi, were of the view that they
can never be considered equal contestants in a claim, and one of them has to
have a prima facie stronger case. This is so as her claim may either be for a
sum equivalent to the sadaq al-mithl or less than it, in which case it is her
statement that is accepted, or it may be more than that, in which case the
acceptable staternent is his.
The reason for the disagreement. between Malik and al-ShafiS, about
rescission after oath-taking and reverting to mahr al-mithl, is whether nikah is
similar to sale. The jurists who said that it resembles it ruled for rescission,
while those who said that it does not resemble it, as dower is not a condition
for the validity of the-contract, ruled for sadaq ai-mith/ after oath-taking. The
claim of jurists, from among the disciples of Malik, who thought that it is not
permitted to them after oath-taking to arrive at an agreement over an amount,
or not permitted to one of them to revert to the claim of the other person with
consent, is totally weak. Those who held this opinion compared it to (the
procedure) of Jian, which is a weak comparison, along with the fact that the
similar hukm in kan is disputed.
In their disagreement about taking possession, with the bride saying that she
did not take possession and the bridegroom saying that she did, the majority of
the jurists maintain that the acceptable statement is that of the woman. These
jurists are al-Shafit, al-Thawri, Ahmad and Aba Thawr. Malik said that the
acceptable statement is hers before seclusion and his after seclusion. Some of
his disciples said that Malik made this statement as the custom in Medina was
that the husband would not go into seclusion with her till he had paid the 36 THE DISTINGUISHED JURIST’S PRIMER
dower, but if there is a land that does not have this custom it is her statement
that will be accepted’always. The opinion that it is her statement that should
always be accepted is better, for she is the defendant, ‘but Malik took into
account the strength of his claim after he had consummated the marriage with
her. Malik’s disciples differed, when a long time had’ passed after the
wedding, as to which is better: to accept his statement with his oath or
without it.
When they differed about the species of the dower, for example, he says, “I
married you with this slave as dower”, while she says, “I married you with this
dress as dower”, then, the well-known. opinion in the school is that they are
both to take oaths and mutually to rescind the contract, when the dispute
arises before they take up common residence, but if it is after that then the
contract is confirmed and she-is entitled to sadaq al-mithl, as long as it is not
more than what she claims.or less than what is conceded by the husband. Ibn
al-Qassar said that they take oaths prior to seclusion, and the acceptable
statement is that of the husband after seclusion. Asbagh said that the
acceptable staternent is the husband’s, if it is credible, irrespective of the
similarity of their statements. If the husband’s statement does not appear
credible, but her statement does, then it is her statement that is accepted. If
her statement is also not likely to be true they are both to take the oath and she
is entitled to sadag al-mith!. Al-Shafi’s opinion on this issue is like his opinion
when they dispute over its amounts, that is, they take oaths and revert to mahr
al-mithl. The reason for the opinions of the fugaha about'rescission in sales
you will come to know in the Book of Sales, God willing.
Their disagreement about the time is to be conceived through the example of
the debt that conforms with’ Malik’s basic principle in a well-known opinion
that the acceptable statement about‘the’period of payment is that of the debtor
on the analogy of sale, over which there is dispute. It may also be conceived
through the question: when is it due, prior to seclusion or after it? Those who
compared #ikdh to sales said that it does not become due, except after seclusion
on the analogy of sale, as the price does not become due from the buyer except
after the possession of the commodity. Those who held that (payment) dower is
an act of worship in which making the act lawful is stipulated said that it is due
prior to seclusion. It is for this reason that Malik recommended that the
bridegroom should: present part of the sadaq before seclusion.
18.2.3. Element 3: The Identification of the Subject-Matter of the
Contract
A woman becomes permissible (to a man) in two ways: by marriage, or by milk
yamin (concubinage). The legal impediments to this are first divided, generally, ‘THE BOOK OF NIKAH (MARRIAGE) 7
jnto two kinds: perpetual impediments and temporary impediments. The
perpetual impediments are divided into those agreed upon and those disputed.
Impediments agreed upon are three: descent, relationship by marriage, and
fosterage. Those disputed are zind and ian. Temporary impediments are
divided into nine types: (1) impediment of number; (2) impediment of
combination; (3) impediment of bondage; (4) impediment of disbelief; (5)
impediment of ikram; (6) impediment of illness; (7) impediment of the waiting
period (Sidda), with the accompanying disagreement about its perpetuity; (8)
impediment of pronouncing divorce thrice for the person divorcing; and (9)
impediment of an existing marriage. Legal impediments, on the whole, are thus
fourteen, therefore, in this part there are fourteen*! sections.
18.2.3.1. Section I: The Impediment of Lineage
They agreed that women prohibited because of descent are the seven
categories in the Qur’an: mothers, daughters, sisters, paternal aunts, maternal
aunts, brother’s daughters, and sister’s daughters. They agreed that “mother”
here is the term for each female related to you as a cause of your birth from
the mother’s side or the father’s side. “Daughter” is the term for each female
in whose birth you are the cause through a son or a daughter or directly.
“Sister” is the name of each female who shares one parent with you or both,
that is, a father. or a mother or both of them. “Paternal aunt” is the name of
each female who is a sister to your father or to any male who is a cause in your
birth. “Maternal aunt” is the term for each. female who is a.sister to your
mother or to the female who is a cause in your birth. “Brother’s daughter” is
a term for each female in whose birth your brother is a cause from her
mother’s side or her father’s side or directly. “Sister’s daughter” is the term
for each female in whose birth your sister is a cause directly or from her
mother’s side or father’s side.
I do not know of any disagreement about these seven prohibited categories.
The source for these prohibitions are the words of the Exalted, “Forbidden
unto you are your mothers, and your daughters, and your sisters, and your
father’s sisters, and your mother’s sisters, and your brother’s daughters and
your sister’s daughters, and your foster-mothers, and your foster-sisters, and
your mothers-in-law, and your stepdaughters who are under your protection
(born) of your women unto whom ye have gone in—but if ye have not gone in
unto them, then it is no sin for you (to marry their daughters)—and the wives
of your sons who (spring) from your Joins. And (it is forbidden unto you) that
ye should have two sisters together, except what hath already happened (of
3! The sections discussed by the author are actually twelve. Two are deferred to later discussions, 38 ‘THE DISTINGUISHED JURIST’S PRIMER
that nature) in the past. Lo! Allah is ever Forgiving, Merciful”.12 They agreed
that descent, which prohibits intercourse through marriage, prohibits
intercourse through milk yamin.
18.2.3.2. Section 2: Impediment of relationship through marriage
Women prohibited through a relationship of marriage are four. First are the
wives of fathers. The source for this are the words of the Exalted, “And marry
not those women whom your fathers married, except what hath already
happened (of that nature) in the past. Lo! it was ever lewdness and
abomination, and an evil way”33 Second are daughters of sons. The source for
this are the words of the Exalted, “[A]nd the wives of your sons who (spring)
from your loins”.4 Third are mothers of wives. The source for this are the
words of the Exalted, “[A]nd your mothers-in-law”.°S Fourth are the
daughters of wives. The source for this are the words of the Exalted, “[AJnd
your stepdaughters who are under your protection (born) of your women unto
whom ye have gone in—but if ye have not gone in unto them, then it is no sin
for you (to marry their daughters)”.*°
Out of these four categories, the Muslim jurists agreed upon the prohibition
of two by virtue of the contract itself, namely, the prohibition of the wives of
fathers and sons, and upon a third category because of consummation, namely,
the wife’s daughter. They disagreed in the latter case on two points. First,
whether it is a condition that she be in the protection of the husband. Second,
whether she becomes prohibited by mere fondling of the mother or through
intercourse. They disputed about the wife’s mother, whether she becomes
prohibited through intercourse with the daughter or through the contract
(with her) alone. They also disagreed in this subject on a fourth issue, whether
zind gives rise to the same prohibition as is imposed through a valid or
irregular nikah. There are, then, four issues.
18.2.3.2.1. Issue 1
The issue is whether it is a condition that the wife’s daughter be in the care of
the husband. The majority maintain. that this is not a condition for prohibition.
Dawid said that it is. The reason for disagreement is whether the words of the
Exalted, “[WJho are under your protection”, is a description that is effective in
2 QuPan 4: 23
3 QuPan 4: 22
4 Quran 4: 23
35 Quan 4: 23
% Quran 4: 23 THE BOOK OF NIX4H (MARRIAGE) 39
the prohibition, or that it is not effective and has been stated to indicate the
usual relationship? Those who maintained that it indicates the common
relationship and is not.a condition in the case of stepdaughters, for there is no
difference in this between those who are under protection and those who are
not, said that the prohibition is absolute for all stepdaughters, Those who
considered it to be a non-rational condition said that they are not prohibited
unless they are‘under his protection.
18.2.3.2.2. Issue 2
Is the (step-)daughter prohibited by mere (physical) contact with the mother or by
intercourse? They agreed that she becomes prohibited by intercourse. They
disagreed about what is less than intercourse, like fondling or looking at the sexual
organs with or without lust, whether it prohibits (the daughter). Malik, al-Thawri,
Aba Hanifa, al-Awza‘t and al-Layth ibn Sa‘d said that touching the mother with
lust prohibits the daughter, which is one of the opinions of al-Shafif. Dawad and
al-Muzani said that only intercourse can prohibit her, which is an opinion of al-
Shafi that is preferred by him. Looking (at the mother with lust) is like touching
for Malik, whatever the limb at which the gaze is focused with lust, but differing
opinions have been narrated from him about it. Aba Hanifa restricted his opinion
to looking at the sex organs, while al-Thawri construed “looking” to be the same
as touching without stipulating lust with it. Ibn Abt Layla opposed them in this,
as did al-Shafit in one of his opinions, and did not assign any consequence to
looking, but he did so to touching. The basis for the disagreement is whether the
meaning of the stipulation of seclusion in the words of the Exalted, “[U]nto whom
ye have gone in”, is intercourse, or pleasure through what is less than intercourse?
If it is pleasure, then, is looking included in it?
18.2.3.2.3. Issue 3
The majority of the jurists of the provinces said about the (wife’s) mother that
she is prohibited by virtue of the contract with the daughter, irrespective of
the consummation of his marriage with her. A group of the jurists held that
the mother does not become prohibited except through a consummated
marriage with the daughter, as is the case with the (wife’s) daughter, that is,
she does not -become prohibited except by consummating marriage with the
mother. This is related from ‘Ali and Ibn SAbbas, may Allah be pleased with
them both, through channels that are weak.
The basis for disagreement is whether the condition (the pronoun) in the
words of the Exalted, “[U]nto whom ye have gone in”, refers to the last-
mentioned category, who are the stepdaughters, or to the stepdaughters and
mothers who are mentioned before the stepdaughters in the words of the
Exalted, “And your mothers-in-law, and your stepdaughters who are under 40 THE DISTINGUISHED JURIST’S PRIMER
your protection (born) of your women unto whom ye have gone in”.*” It is
possible that the words “unto whom ye have gone in” refer to both mothers
and daughters, and it is also possible that they refer to the last mentioned, that
is, the daughters. The proof of the majority is what is.related:by al-Muthanna
ibn al-Sabah from ‘Amr ibn Shu‘ayb from his father from his grandfather that
the Prophet (God’s peace and blessings be upon him) said, “When a man
marties a woman, and has intercourse with her or he does not, her mother
cannot be permissible for him”.
18.2.3.2.4. Issue 4
They isagreed about unlawful intercourse whether it gives rise to the same
prohibition in such cases as that of marriage through a valid contract or one
made in shubha, that is, one in which the Aadd penalty is waived. Al-ShafiT
said that unlawful intercourse with a woman does not prohibit marriage with
her mother or her daughter or her marriage with the offender’s father or son.
Abn Hanifa, al-Thawrt, and al-Awza‘l said that unlawful intercourse prohibits
what is prohibited’ by marriage. From Malik an opinion similar to al-Shafi’s
is recorded in a/Mumatia> that it does not prohibit, and Tbn al-Qasim has
related: from him an opinion identical to that of Aba Hanifa’s that it does.
Sahnin said that the disciples of Malik opposed him (Ibn al-Qasim) in this,
and follow what is in a/-Muwatta’. It is related from al-Layth that intercourse
through shubha does not prohibit such marriages, but it is deviant.
The reason for the disagreement lies in the equivocality in the meaning of
the term “nikah”, that is, in its conveying both legal and literal meanings.
Those who assigned the literal meaning to it in the words of the Exalted, “And
marry not those women whom your fathers married”, said that unlawful
intercourse prohibits such marriages, but those who assigned it the legal
meaning said that it does not. Those who determined the underlying cause for
the Aukm to be the prohibition that operates between a mother and her
daughter’ and between a father and his son said that unlawful intercourse also
prohibits (such marriages), but those who derived the underlying cause from
descent said that it does not, because of the consensus of the majority that
descent is not linked with unlawful intercourse. They agreed about what is
related by Ibn al-Mundhir that intercourse in concubinage prohibits what is
prohibited by intercourse in a marriage. They disagreed about the effect of
physical contact in concubinage, just as they disagreed about it in marriage.
37 Quran 4: 23 ‘THE BOOK OF NIKAH (MARRIAGE) . 4
18.2.3.3. Section 3: The Impediment of Fosterage (Suckling; Wet-nursing)
They agreed that fosterage, as a whole, prohibits what is prohibited because of
the impediment of descent, that is, the foster-mother acquires the status of the
mother, and becomes prohibited herself for the foster-child along with all
those who are prohibited to the son because of the true mother. They
disagreed about this in. many issues out of which the primary ones are nine.
First, the quantity of milk that leads to prohibition, Second, the number of
years of fosterage. Third, the state of the foster-child at that time, according to
those who stipulate for the prohibitive suckling a particular time. Fourth, is
the child’s contact with the breasts and swallowing taken into account? Fifth,
is mixing of the milk (with something else) taken into consideration? Sixth, is
the reaching of the milk into the gullet considered? Seventh, does the owner of
the milk, that is, the husband of the foster-mother, acquire the status of a
father, the case being called /aban al-fabl. Eighth, is the testimony about
suckling. Ninth, the qualification of the foster-mother.
18.2.3.3.1. Issue 1
About the prohibiting quantity of milk, a group of jurists upheld the negation
of a limitation, which is the opinion of Malik and his disciples, is related from
Ali and Ibn Mas‘nd, and is also the opinion of Ibn (Umar and Ibn ‘Abbas.
According to them any quantity is sufficient for prohibition. It was also the
opinion of Abd Hanifa and his disciples, as well as that al-Thawrt, and al-
AwzaG. Another group of jurists upheld a limitation upon the quantity of milk
that prohibits. These jurists are divided into three groups. One group said one
or two sucklings do not prohibit, but three or more do. This was upheld by
Aba ‘Ubayd and Aba Thawr. The second group said that five sucklings lead
to prohibition, which was al-Shafi’s opinion. The third group said that ten
sucklings are prohibitive.
The reason for their disagreement over this issue is the conflict of the general
meaning of the Book with the traditions which imply limitation, and also the
conflict of some traditions with the others. The general meaning in the Book is
found in the words of the Exalted, “[A]nd your (mothers who have suckled you)
foster-mothers, and your foster-sisters, and your mothers-in-law...”38 This
indicates whatever the term fosterage is applied to. The conflicting traditions are
essentially two, First is the tradition of ‘Aisha, including the other traditions
which convey the same meaning,.that the Prophet (God’s peace and blessings be
upon him) said, “One or two sucks or one or two feedings do not lead to
Prohibition”. It is recorded by Muslim once through ‘Aisha, another time
* Quran 4: 23 42 THE DISTINGUISHED JURIST’S PRIMER
through Umm al-Fadl, and through a third channel, and in it is said, “The
Messenger of Allah (God’s peace and blessings be upon him) said, ‘One or two
sucks do not lead to prohibition.’ ”. The second tradition is of Sahla about Salim
that the Prophet (God’s peace and blessings be upon him) said to her, “Give
him five feedings (sucklings)”. There is a report from ‘Aisha conveying the
same meaning, in which she said: “There were ten sucklings refating to what was
revealed in the Quran, but were later abrogated by five. The Messenger of Allah
(God’s peace and blessings be upon him) died and these are what is read in the
Quran (as a commentary)”. Those who refer the apparent interpretation of the
Quran to these traditions say that one or two sucks lead to prohibition, but
those who considered the traditions as an elaboration of the Quran, and
reconciled them with the Quran, and interpreted the indirect indication of the
text through the words of the Prophet, in the tradition of Salim, “A suck or two
do not lead to prohibition”, said that three or more feedings lead to prohibition.
This is so as the indirect indication of the text in the words of the Prophet
(God’s peace and blessings be upon him), “One or two sucks do not lead to
prohibition”, requires that what is beyond three leads to prohibition, while the
indication of the text in his words, “Give him five feedings”, means that what is
less than this does not Jead to prohibition. There is a possibility of preferring
either of these indications.
18.2.3.3.2. Issue 2
They agreed that suckling in the first two vears (of the age of the child) leads
to prohibition, and they differed about the nursing of an older child. Malik,
Abu Hanifa, al-ShafiT, and most of the other jurists said that nursing an older
child does not.lead to prohibition. Dawad and the Zahirites held that it does,
which is ‘A’isha’s opinion. The opinion of the majority is also the opinion of
Tbn Mas‘ad, Ibn “Umar, Aba Hurayra, Ibn ‘Abbas, and all the other wives
(besides ‘A?isha) of the Prophet (God’s peace and blessings be upon him).
The reason for their disagreement is the conflict of the relevant traditions.
‘Two traditions have been related’in this. First is the tradition of Salim that has
preceded, while the second is ‘A?isha’s tradition recorded by al-Bukhart, where
she said, “The Messenger of Allah (God’s peace and blessings be upon him)
came into the house and there was a man with me. He felt perturbed and I
could see anger upon his face. I said, ‘O Messenger of Allah he is my foster-
brother’. He said, ‘See who your foster-brothers are, for fosterage relates to
hunger’. ” Those who prefer this tradition said that the milk, which does not
constitute sustenance for the infant, does not lead to prohibition. Further,
Silim’s tradition is laid down in a specific issue, and all the other wives of the
Prophet (God’s peace and blessings be upon him) maintained that it was a case
of exemption for Salim. Those who preferred Salim’s tradition and reasoned THE BOOK OF N/KAH (MARRIAGE) 43
about ‘Aisha’s tradition that she.(herself) did not act upon it maintained that
nursing an older child does lead to prohibition.
18.2.3.3.3. Issue 3
They disagreed when the infant becomes independent of food (suckling) before
a period of two years, has weaned, and then a woman suckles him. Malik said
that this suckling does not prohibit (marriage), while Aba Hanifa and al-ShafiT
said that it leads to prohibition. The reason for disagreement is their difference
in construing the words of the Prophet (God’s peace and blessings be upon
him), “Fosterage is related to hunger”, which could imply that he intended the
years of hunger whatever the state of the infant, and these would be the years
of fosterage, but it is also possible that he meant when the child has not
weaned, and once he has weaned within two years it no longer remains
suckling die to hunger. The disagreement, therefore, refers to the fact
whether in fosterage, the cause of which is hunger and the need for milk, the
natural physical need of infants for milk is considered, which is a need based
on the age of suckling, or the actual need of the infant himself, which is
removed with weaning but is present by nature, is to be taken into account.
Those who upheld the effectiveness of suckling in the period of fosterage,
irrespective of their stipulation of weaning, differed about this duration. Some
held it to be a period of two years only, which is Zufar’s opinion, while Malik
resorted to istifsan for purposes of prohibition and included a short duration
beyond two years; in one opinion from him it is a month, and in-another it is
three months. Abii Hanifa held it to be two years and six months. The reason
for their disagreement is based on the presumed conflict between the verse of
suckling and ‘Aisha’s tradition that has preceded. This is so as in the words of
the Exalted, “Mothers shall suckle their children for two whole years; (that is)
for those who wish to complete the suckling”, imply that whatever is beyond
these two years is not suckling based upon hunger for milk, while the words of
the Prophet (God’s peace and blessings be upon him), “Fosterage is related to
hunger” imply by their generality that as long as the food of the infant is milk,
suckling will lead to prohibition.
18.2.3.3.4. Issue 4
Does the feeding (of extracted milk) by pouring it or administering it lead to
prohibition, that is, the passing of milk through the gullet by. means other than
suckling? Malik said that feeding of extracted milk without direct suckling, by
pouring it or administering it, leads to prohibition. “Aj and Dawad said that
it does not. The reason for their disagreement is whether the consideration is
for the consumption of the milk, howsoever it reaches the mouth, or is it for
(consumption in) the usual way? Those who were of the view that it should be cd THE DISTINGUISHED JURIST’S PRIMER
fed in the usual way, which is designated by the term ‘suckling,’ said that
other methods of feeding do not lead to prohibition, while those who took into
account the reaching of milk into the child’s stomach, whatever the channel,
said that it does.
18.2.3.3.5. Issue 5
They also disagreed about the question whether it is a condition for
prohibiting milk that it should not be mixed with something else. Ibn al-Qasim
said that if the milk is mixed with water or with something else and is then fed
to the infant there is no prohibition. This was also the opinion of Aba Hanifa
and his disciples. AL-Shafit, Ibn Habib, Mutarrif, and Ibn al-Majishan from
among the disciples of Malik said that prohibition is caused by it in case the
milk is not mixed and its essence is not lost. The reason for their disagreement
is whether the Auém of prohibition for milk subsists when it is mixed with
something else or it does not, as is the case with filth when it is mixed with a
permissible pure thing. The principle to be considered is that prohibition is
found as long as application of the term “milk” to the mixture remains valid,
as is the case of water when something clean is mixed with it.
18.2.3.3.6. Issue 6
Is the passage of milk through the gullet essential (for prohibition)? It appears
that this is the cause for disagreement in the cases of snuffing and enema with
milk, and the disagreement is apparently based on their doubt as to whether
milk passed on through these organs reaches the stomach.
18.2.3.3.7. Issue 7
Does the man who has authority over the milk, that is, the woman’s husband,
become the foster-father of the child, so that prohibition is applied to them: to
this foster-father, and to their ascendants and offspring? This is what they
term as Jaban al-fahl. The jurists disagreed about this. Malik, Aba Hanifa, al-
Shafif, Ahmad, al-Awza7 and al-Thawrt said that Jeban al-fakl leads to
prohibition. Another group of jurists said that it does not. The former opinion
was held by ‘Alt and Ibn ‘Abbas, while the latter was maintained by ‘A?isha,
Tbn al-Zubayr and Ibn ‘Umar.
The reason for their disagreement is the conflict of the apparent meaning of
the Book, that is, the verse of suckling, with the well-known tradition related
by ‘Aisha. The tradition:of ‘Aisha is the one in which “she said, “Aflah, the
brother of Aba al-Qu‘ays, sought permission to enter after the coming down of
the #iab obligation, so I refused to let him in. I asked the Messenger of Allah
(God’s peace and blessings be upon him), who said, ‘He is your uncle, so grant
him permission’. I said, ‘O Messenger of Allah, it is the woman who suckled
me, not the man’. He said, ‘He is your uncle and can enter in your piesence’.” THE BOOK OF NIKAH (MARRIAGE) 45
jt is recorded by al-Bukhart, Muslim and Malik. Those who maintained that
the content of the tradition is an addition over the provision of the Book, that
is, the words of the Exalted, “And your foster-mothers, and your foster-
sisters”, and also upon the words of the Prophet (God’s peace and blessings be
upon him), “Fosterage prohibits ‘what is prohibited by birth”, said that aban
al-fakl leads to prohibition. Those who held that the verse of suckling and the
words, “Fosterage prohibits what is prohibited by birth”, were laid down to
strengthen the hukm of suckling, as delaying the explanation beyond the time
of its need is not permitted, said that if the requirements of this tradition are
acted upon it becomes necessary to consider it as abrogating the principles, as
an addition that alters the 4ukm abrogates it. Further, prohibition caused by
laban al-fakl was not ‘Aisha’s opinion, and she is the narrator of the tradition.
It becomes difficult to reject the declared principles that seek to strengthen and
explain (the fukm) at the time of need, on the basis of rare traditions,
especially those that are for a specific case. It was for this reason that (Umar
(God be pleased with him) said about the tradition of Fatima bint Qays: “We
cannot relinquish the Book of Allah for a woman's fables”.
18.2.3.3.8. Issue 8
A group of jurists said‘about the testimony regarding suckling that nothing but
the testimony of two women is acceptable in-this. Another group said that the
testimony of at least four is required, which was the opinion of al-Shafit and
‘Aw. A third group of jurists said that the testimony of a single woman is
acceptable. Some among those who said that the testimony of at least two
women is acceptable stipulated the spread of the news about suckling prior to
the acceptance of their testimony. This is the opinion of Malik and Ibn al-
Qasim. There were others who did not stipulate this, which is the opinion of
Mutarrif and Ibn al-Majishin. Among those who allowed the testimony of a
single woman are some who did not stipulate spread of her claim .prior to
testimony, which is Aba Hanifa’s opinion, and there are some who did
stipulate this, which is one report from Malik, from whom it is also related
that the testimony of less than two women is not acceptable.
The reason for their disagreement, over four and two women, is their
dispute about the testimony of women whether two women are equivalent to
one man, in cases where the testimony of a man is not acceptable, or that two
women are sufficient. This issue will be coming up in the Book of Shahadat,
God willing. Their disagreement about the acceptance of the testimony of a
single woman arises because of its conflict with the traditions relevant to the
issue and with principles that are agreed upon, that is, the testimony of less
than two males is not acceptable, and that the position of women in this is
either weaker than that of men or is equivalent to it. Further, there is 46 THE DISTINGUISHED JURIST’S PRIMER
consensus on the point that judgment cannot be rendered upon the testimony
of a single woman. The command that is laid down on this issue is found in
the tradition of ‘Ugba ibn al-Harith, who said, “ ‘O Messenger of Allah, I
married a girl and a woman turned up saying: I suckled both of you.’ The
Messenger of Allah (God’s peace and blessings be upon him) said, ‘How can
this be apparent after what had been said? Turn her away’. ”-Some of the
jurists interpreted this tradition as conveying a recommendation, after
reconciling it with the principles, and that is more likely; .it is one of the
narrations from Malik.
18.2.3,3.9. Issue 9
They agreed about the condition of the wet-nurse that the milk of any woman,
baligh or non-bdligh, even beyond the age of menopause, married or single,
pregnant or not, leads to prohibition. Some of them gave an absurd opinion
imposing prohibition because of male-milk. This is non-existent let alone that
there be a legal Aukm for it. If it is found, it is not milk except by the
equivocality of the name. Under this subject, they differed about the milk of a
corpse. The reason for the disagreement is whether it is included in the
general meaning. There is no milk from a corpse, and if found it is only
designated-as such through the equivocality of the term, It is possible that an
issue be hypothetical, thus, it has no existence, except as a conjecture.
18.2.3.4, Section 4: The Impediment of Unlamful Intercourse (Zina)
They disagreed about the marriage of a zdniya.*? The majority permitted this,
while a group of jurists disallowed it. The reason for their disagreement is
their dispute about the meaning of the words of the Exalted, “[AJnd the
adulteress none shall marry save an adulterer or an idolater. All this is
forbidden unto believers”, whether it implies blame or prohibition, and
whether the reference in the words, “All this is forbidden unto believers”, is
to zind or to marriage? The majority decided to construe the verse to mean
blame and not prohibition because of what is laid down in the tradition “that
a man said to the Prophet (God’s peace and blessings be upon him) about his
{the man’s) wife that she docs not turn away the hand of anyone who touches
her. The Prophet (God’s peace and blessings be upon him) said, ‘Divorce het’.
» A woman who has indulged in unlawful sexual intercourse, by way of fornication or adultery.
* Quran 24 ; 3. The use of the term “adulteress” in Pickthall’s translation is not correct, in so far as it
does not indicate every woman who has committed unlawfy] sexul intercourse, The term “adulteress” is
applicable to a married woman alone, while the word zfniya has a wider meaning, and includes married as
well as unmarried women. The phrase “unlawful sexual intercourse” has, therefore, been used to convey the
meaning of the term ind. ‘THE BOOK OF NIKAH (MARRIAGE) 47
The man replied, ‘I love her’. The Prophet said, ‘Then hold on to her’. ” A
group of jurists also said that unlawful intercourse annuls marriage on the basis
of this principle, which was the opinion of al-Hasan. We shall discuss in the
Book of Aan (Imprecation) the marriage of a woman, accused in fan, to her
husband who accused her.
18.2.3.5. Section 5: The Impediment of Number (of Marriages)
The Muslim jurists agreed about the permissibility of (a man) marrying four
women at the same time. This is for freemen. They disagreed on two points:
in the case of slaves and about a number beyond four.
Malik said about the slave, in his well-known opinion, that it is permitted to
him to marry four (wives); this was also the opinion of the Zahirites. Abo
Hanifa and al-Shafi said that’it is permitted to him to have two wives only (at
one time). The reason for their disagreement is whether bondage is effective in
discarding this number, just as it is effective in remitting one-half of the hadd
that is obligatory for the freeman for fornication; similarly, in divorce,
according to those who uphold it. This is so as the Muslim jurists agreed
about reducing his Aadd to one-half in zind, that is, his Aadd is one-half that of
the Aadd of the freeman, but they disagreed about other things.
About marrying more than four, the majority maintain that a fifth wife is
not permitted, because of the words of the Exalted, “[Mlarry of the women
who seem good to you, two or three or four’! and also because of a tradition
related from the Prophet (God’s peace and blessings be upon him) that he said
to Ghaylan when he converted to Islam and had ten wives, “Hold on to four
and let go the rest”. A sect says that nine are permitted. It appears that those
who permitted nine held that opinion on the basis of addition of numbers
occurring in the preceding verse, that is, addition of the numbers in the words
of the Exalted, “two and three and four”.
18.2.3.6. Section 6: The Impediment of Combination
They agreed that two sisters are not be combined (married together) through
marriage contracts, because of the words of the Exalted, “And (it is forbidden
unto you) that ye should have two sisters together, except what hath already
happened (of that nature) in the past”. They disagreed about combining them
through the ownership of the right hand. The fugaha (in general) prohibit it,
but one group held that it is permissible.
“ QuPan 4:3 48 THE DISTINGUISHED JURIST’S PRIMER
The reason for their disagreement is the conflict of the general meaning in
the words of the Exalted, “[T]hat ye should have two sisters together”, with
the generality of the exemption at the end of the verse, “[S]ave those (captives)
whom your right hands possess”.? It is likely that this exemption extends
backwards to the last-mentioned category, and it is also possible that it extends
to all that is included in the verse as to prohibition, except cases over which
there is consensus that it does not affect them; in this way milk al-yamin is
excluded from the words of the Exalted, “[T]hat ye should have two sisters
together”. It is likely that the exemption relates to the last-mentioned category
whereby the words of the Exalted, “[TJhat ye should have two sisters
together”, retain their generality, especially when we assign it the underlying
cause of sisterhood or another cause found within it. Those who upheld its
prohibition in milk al-yamim differed in the case where one of them was
(associated) through marriage while the other through milk al-yamtn. Malik
and Abo Hanifa prohibited it, but it was permitted by al-Shafi.
Similarly, they agreed, as far as I know, about the prohibition of combining
a woman with her paternal aunt, and a woman with her maternal aunt, as this
has been established from the Prophet (God’s peace and blessings be upon
him) in the mutawatir tradition of Abi Hurayra in which the Prophet is
reported to have said, “A woman is not to be married together with her
paternal aunt nor with her maternal aunt”. They agreed that a paternal aunt is
every female who is a sister of a male who is the cause of one’s birth, either
directly or through another male, and that a maternal aunt is each female who
is a sister of every female who is the cause of one’s birth, either directly or
through another female; these are free-women from the mother’s side. They
disagreed whether it is a case of a particular meaning whose implication is also
particular or it is from the category of a particular word whose implication is
general. Those who said that it is from the category-of a particular word with
a general implication, disagreed what kind of generality is intended by it. A
group of jurists, and they are the majority of the jurists of the regions, said
that it is a particular word with a particular implication, and the prohibition
does not extend beyond the case delineated. Another group of jurists said that
it is a particular word with a general implication, which includes any two
women between whom there is a prohibiting or non-prohibiting relationship.
Thus, according to them, it is not permitted to marry together two daughters
of paternal uncles or an aunt, nor two daughters of maternal uncles or an aunt,
hor a woman and a daughter of her paternal uncle or aunt, nor a woman and
the daughter of her maternal aunt.
© Quran 4:24 THE BOOK OF NIKAH (MARRIAGE) 49
One group of jurists said that it is prohibited to marry together any two
women between.whom. there is a prohibiting relationship, that is, when one of
them is a man and the other a woman, they could not have been legally
permitted to marry. That is, if one of these two women had been a man. There
are among them those who stipulate this from both sides, that is, if each one
of them is considered a man and the other a woman, in turn, and it turns out
that they are not legally permitted to marry.*? These would be the cases where
marrying them together is not permitted. If, however, one side is considered a
male and marriage is prohibited, but it is not prohibited when assumed from
the other side, then, marrying together is permitted, asin the case of marriage
with a man’s (former) wife and his daughter from another woman. Here, if we
consider the daughter a male, it would not be permitted to her to marry the
woman, for she is the wife of her father, but if we consider the woman as a
male, she would be permitted to marry the daughter of her husband, for she is
the daughter of a stranger. These rules were preferred by the disciples of
Malik. The other jurists disallow simultaneous marriage with a man’s wife and
his daughter from another woman.
18.2.3.7 Section 7: The Impediment of Slavery
They agreed that it is permissible for the slave to marry a female slave, and for a
free-woman to marry a male slave, if she agrees to this and so do her guardians.
They disagreed about the marriage of a' freeman to a female slave. Some jurists
said that it is permitted without qualification, which is the well-known opinion of
Ton al-Qasim. Others said that it is not permitted, except on'two conditions: lack
of resources (dower of a free-woman), and the fear of falling into evil. This is the
well-known opinion of Malik, and also of Abd Hanifa and al-ShafiT.
The reason for their disagreement is the conflict between the indirect
indication of the text in the words of the Exalted, “And whoso is not able to
afford to marry chaste (or free), believing women, let them marry from the
believing maids whom your right hands possess”, and the generality of His
words, “And marry such of you as are solitary and.the pious of your slaves and
maidservamis”.*> This is so as the meaning of the indirect indication of the text
in the words of the Exalted, “And’ whoso is not able to afford to marry free,
believing women, let them marry from the believing maids whom your right
hands possess”, requires that marriage with a female slave is not permitted
except with two conditions. First, is the absence of means to marry a free-
* That is, if one of these two women had been a man.
Quran 24 : 32
§§ Quran 24 : 32 50 THE DISTINGUISHED JURIST’S PRIMER
woman, while the second is the fear of falling into sin. The words of the
Exalted, “And marry such of you as are solitary and the pious of your slaves
and maidservants”,* require, through their generality, the permissibility of
their marriage with a freeman or slave, whether the freeman is’a bachelor, and
whether he is in fear of falling into sin. Yet, the indirect indication of the
command in the text here has greater strength than the generality, Allah knows
best, as in this general implication the qualifications of the prospective
husbands for the slave-girls are not stipulated. The aim in this verse is to issue
the command for marrying them and to forbid their coercion, which is also
construed by the majority to be a recommendation, though, the man will cause
his offspring from this marriage to go into bondage.
In this topic, they differed about two widely known cases, that is, those who
did not permit marriage (with a female slave) except -on two prescribed
conditions. The first is that if the man is already married to a free-woman,
does it amount to a possession of means? Aba Hanifa said that it amounts to a
possession of means, while others said that it does not. From Malik both
opinions are related. The second issue is whether the person, in whom both
these conditions are found, can marry more than one slave-woman, three, four,
or two.
Those who maintained that a man married to a free-woman cannot fear
falling into sin, as he is not a bachelor, said that such a man is not permitted
to marry a slave-woman (because children from a slave go into bondage).
Those who said that the fear of falling into sin can always exist, whether the
man is single or married, for the first wife may not be sufficient to protect him
from sin, and he is not able to marry another free-woman so as to avoid sin,
said that he may marry a slave-woman. His position with respect to this free-
woman is the same as his condition prior to marriage with her, especially when
he fears falling into sin with the slave-woman whom he wishes to marry. This
is exactly the cause in their disagreement over the issue whether he could
marry a sécond female slave on top of the first. Those who limit the fear of
falling into sin to a bachelor, for such a fear is greater for bachelors, said that
he cannot marry more than one slave-woman. Those who do not impose such
a limitation said that he may marry more than one slave-woman; similarly,
they say that he may marry her with an existing marriage with a free-woman.
The generalization of the fear of falling into sin without qualification is
subject to examination. If we say that a man married to a free-woman follows
the opinion that he has the right to marry a slave-woman without the
permission of the free-woman, does she have an option to stay with him or to
annul the marriage? Malik’s opinion differed on this. They also disagreed
* Quean 24: 32 THE BOOK OF NIKAH (MARRIAGE) 51
when he acquires the means to marry a free-woman after marrying the slave-
woman, is he to be separated from the slave-woman? They did not disagree,
that is, the disciples of Malik, that when the fear of falling into sin has left him
he is not to be separated from the slave-woman. They agreed under this topic
that it is not permitted to a woman to marry her own slave; if she comes to
own her husband, the marriage is rescinded.
‘
18.2.3.8. Section 8: The Impediment of Disbelief (Kufr):
They agreed that it is not permitted to a Muslim to marry an idolatress due to
the words of the Exalted, “And hold not to the ties of disbelieving women”.
They disagreed about marrying slave idolatresses. They agreed that he may
marry a free Aitabiyya, except what is related about it from Ibn “Umar. They
disagreed about marrying a slave kitdbiyya, but they were in agreement about
her permissibility through milk a/-yamin.
The reason for their disagreement about marrying enslaved idolatresses is
the conflict of the general meaning of the words of the Exalted, “And hold not
to the ties of disbelieving women”, and of the words of the Exalted, “Wed not
idolatresses till they believe”,4? with the words of the Exalted, “And all
married women (are forbidden unto you) save those (captives) whom your
right hands possess”,** that is, the female prisoners of war, with the apparent
meaning implying generality, without distinction of a kstabiyya or idolatress.
The majority of the jurists prohibit this, while Tawds and Mujahid upheld its
permissibility. Their argument is supported by what is related about the
marriages of the prisoners in the battle of Awtas when they sought the
Prophet’s permission for ‘azf (ejaculating outside) and he permitted them to
do so.
‘The majority upheld the permissibility of marriage with the kitabiyat who
are free through a contract, as the principle is to construe (by exemption) the
Particular from the general. The words of the Exalted, “{AJnd the virtuous
women (out) of those who received the Scripture”, is particular, while His
words, “Wed not idolatresses till they believe”, is general; the majority, thus,
exempted the particular from the general. Those who inclined toward its
Prohibition, which is the opinion of some of the fugaha’, considered the
general meaning to have abrogated the particular.
They disagreed about the permissibility of a slave éitdbiyya through
marriage, because of the conflict of the generality in this case with analogy.
* Quran 2: 221
Quan 4: 24
° QuPan 2: 221
