44. Women who come as captives of war, leaving their husbands behind in Dar
al-Harb (Domain of War), are not prohibited, for their marriage is nullified
by virtue of their entry into Dar al-Islam (Domain of Islam). A man may marry
such women and, if they happen to be his slave-girls, he may have sexual relations
with them. There is disagreement, however, among jurists as to what should be
done if both husband and wife have been taken captive together. Abu Hanifah
and the jurists of his school are of the opinion that their marriage should
remain intact. Malik and Shafi'i, on the other hand, argue that their matrimonial
contract should be rendered void.
Many misunderstandings seem to persist about the right to have sexual relations
with one's slave-girls. It is pertinent to call attention to the following regulations
of Islam:
(1) Islam does not permit soldiers of the Islamic army to have sexual relations
with women they capture in war. Islamic Law requires that such women should
first be handed over to the government, which then has the right to decide what
should be done with them. It may either set them free unconditionally, release
them on payment of ransom, exchange them for Muslim prisoners of war held by
the enemy or distribute them among the soldiers. A soldier may have sexual relations
only with that woman who has been entrusted to him by the government.
(2) Even then, he may not have sexual relations with her until at least one
menstrual period has expired; this is in order to establish that she is not
already pregnant. If the woman concerned is pregnant one may not have sexual
relations with her until after the birth of her child.
(3) It is not necessary for female captives of war to be People of the Book
in order that sexual relations with them be permitted. The man to whom such
a woman is entrusted has the right to have sexual relations with her regardless
of her religious affiliations.
(4) Only that person to whom a female captive has been entrusted has the right
to have sexual relations with her. Any child born to her will be regarded as
the legitimate child of her master, and will be entitled to all the rights laid
down by the Law for one's issue. Moreover, once such a woman has given birth
to a child she may not be sold to anyone, and on the death of her master she
automatically becomes a free person.
(5) If the master allows the woman to marry someone else he ceases to have the
right to sexual relations with her but retains the right to have her serve him
in other ways.
(6) Although the Law has fixed the maximum number of wives at four, it has set
no limit with regard to slave-girls. The Law does not lay down a limit in order
to encourage people to accumulate huge armies of slave-girls, and thereby turn
their homes into dens of sexual enjoyment. Rather the Law does not define the
limit because the effects of war and the total number of female captives that
would have to be disposed of after a certain war are unpredictable.
(7) In the same way as other rights of property are transferable, so are the
proprietary rights regarding the captives of war that have been legally entrusted
to a man by the state.
(8) Since the regular conferment of property rights is as legal an act as that
of marriage, there is no basis for a person who feels no revulsion towards the
idea of marriage to feel revulsion towards the idea of having sexual relations
with a slave-girl duly entrusted to him.
(9) If a government confers proprietary rights to a man over a female captive
of war it forfeits the right to withdraw those rights in the same way as the
guardian (wali) of a woman ceases to have the right to withdraw his agreement
to the marriage proposal after the marriage has been contracted.
(10) If a military commander permitted his soldiers to temporarily use the female
captives as objects of sexual desire and distributed them among the soldiers
for that purpose, such an act would be considered unlawful by Islamic Law. Such
an act is not essentially different from fornication or adultery. For details
see my book Tafhimat, vol. 2, pp. 366-84, and Rasai'il wa Masa'il, 6th edition,
Lahore, 1976, vol. 3, pp. 102-4.
45. The difference between the status of people is relative. All Muslims are alike. If there is any true distinction its basis is a person's faith and faith is not an exclusive privilege of the rich or so-called upper classes of the society. So it is possible for a slave-girl to be superior, in respect of her faith and morals, to a woman belonging to the elite of a society.
46.A superficial reading of this verse can lead to the mistaken conclusion,
as Khawarij and others have done, that stoning is not the prescribed punishment
for adultery. Such people ask: If stoning is the prescribed punishment for extra-marital
sexual intercourse, then how is it possible to halve that punishment with regard
to slave-girls? Such people have not noted carefully the wording of this verse.
In this section see (verses 24-5) the term muhsanat (protected women) is used
in two different meanings. First, it is used in the sense of 'married women',
that is, those who enjoy the protection of their husbands. Second, it is used
in the sense of 'women belonging to families', i.e. those who enjoy the protection
of families even though they may not be married. In the verse under discussion,
the word muhsanat is used in the latter sense, i.e. in the sense of women who
enjoy the protection of families as opposed to slave-girls. At the same time,
the word is also used in the first meaning, when slave-girls have acquired the
protection accorded by the contract of marriage (fa idha uhsinna), they will
be liable to the punishment laid down in this verse if they have unlawful Sexual
intercourse.
It is therefore apparent that a free woman enjoys two kinds of protection. One
is the protection of her family through which she remains protected even when
she is not married. The second is the protection of her husband, which reinforces
the protection of the family that she already enjoys. As long as the slave-girl
remains a slave, she does not enjoy the protection of the family. However, when
she is married she has the protection of her husband - and of her husband alone.
This protection is partial. Even after marriage she is neither liberated from
the bond of her master nor does she attain the status enjoyed by free women.
The punishment prescribed for a married slave-girl is accordingly half the punishment
of an unmarried free woman rather than half that of a married free woman.
This also explains that the punishment for unlawful sexual intercourse (zina)
laid down in (Surah al-Nur 24: 2 )refers to the offence committed by unmarried
free women alone, and it is in comparison with their punishment that the punishment
of married slave women has been laid down as half. As for free married women,
they deserve more severe punishment than the unmarried free women (muhsanat)
for they violate the double protection. Even though the Qur'an does not specifically
mention punishment by stoning it does allude to it in a subtle manner.
47. That is, if a man cannot afford to marry a free woman then he should marry a slave-girl with the permission of her master.