88. That is, forbidden in marriage. “... Marriage with them would be not only sinful but also illegal - null and void ab initio - creating in fact, as in law, no civil rights and obligations whatsoever (Majid).

89. Also included are grand mothers and above, how so high, of all kinds, real, consanguine or uterine, both from the mother’s side as well as the father’s (Shawkani, Thanwi).

90. Also included are grand daughters and below how so low (Shawkani). As for a daughter born out of adultery, except for Imam Shafe`i, the rest of the three fuqaha’ are of the opinion that she is also as unlawful as a legal daughter is (Ibn Kathir).

91. Also included are sisters by the father or mother (Shawkani).

92. It is also unlawful - in view of a hadith reported by Ibn `Abbas - for a man to keep together in wedlock a woman and her aunt - maternal or paternal, real, consanguine or uterine (Qurtubi, Shawkani, Shafi`).

93. Such are four in total: father’s sisters, his brother’s wives, mother’s sisters and her brother’s wives (Shawkani).

94. “Whether it is their mothers who have suckled you or it is your mothers who have suckled them” (Majid). A hadith in the Sahihayn reports `A’isha (ra) as saying that the Prophet said:

"يَحْرُم من الرضاعة ما يَحْرُم من النسب"

“Fostering makes unlawful what descent would make unlawful” (Kashshaf, Ibn Kathir). That is, foster mother, grand mother, daughter, an aunt, and all others are as unlawful to the fostered person as his real mother, daughter and others stated herewith, except for two: 1. A man cannot marry his brother’s sister by descent (if the brother is by the same father but by another mother: Au.) but he can marry a brother’s sister by fosterage (if the brother is by the same foster father but by another mother: Au.), since, the barrier in case of descent is the father’s sexual intercourse with his mother. 2. He cannot marry his brother’s mother by descent (if the brother is by the same father but another mother: Au.), but he can marry a brother’s mother by fosterage (if the brother is by the same foster father but by another mother: Au.), since, in descent the barrier was his father’s sexual intercourse with his foster brother’s mother (Kashshaf). However, according to a hadith quoted by `A’isha in Muslim,

لاتحرم المصة و المصتان

“It is not one or two gulps (or sucks) that turn a woman into a foster mother.” It is five gulps (or sucks) that make a woman foster mother. The Prophet (saws) had ordered Sahlah bint Suhayl to give Salem five sucks in order that he could freely enter her house. Further, the great majority of the jurists are of the opinion that fostering is considered fostering proper, only before a child is 2 years or less of age; but after that no (Ibn Kathir). See Al-Baqarah verse 233 for more details (Au.).

95. Some women become permanently unlawful due to a marriage, such as, for example, a mother in law. But others are unlawful only so long as one is married to a woman, such as her sisters, aunts, nieces, etc. These become lawful with the death or divorce of the wife (Shabbir).

96. There are differences in opinion over the exact implication of the words: “in your care.” One opinion is that these words do not lay a condition, rather, have been added following the general practice, in vogue at that time, of taking step-daughters in one’s care after marrying her mother (accordingly, every step-daughter is prohibited regardless of whether she is in one’s care or not: Au.) - Razi. While it is not uncommon at all in the West for parents to have sex with their step sons or daughters, cases are reported of even real daughters been molested by their fathers. When a case was brought up before the law court in southern Italy, of a man who had been molesting his several legal daughters, the defence lawyer argued that it was a common practice in the social milieu of the accused, and hence not a crime. Recently an American Senator described to a hushed full House how her father sexually molested her in her youth (Au.).

97. Therefore, if a man marries a woman and divorces her before the marriage is consummated, it is lawful for him to marry her daughter. In other words, merely a marriage contract with a woman does not make her daughter unlawful. It is, according to some, consummation that makes her unlawful, while, according to others, it is privy in which the man uncovers the woman, even if intercourse does not take place, that affects it (Ibn Jarir, Ibn Kathir). Imam Malik, Abu Hanifah, Awza`i and Al-Layth have said that even if the man touches a woman with lust, her daughter is prohibited to him. But other scholars have expressed slightly different opinions (Shawkani).

98. In contrast, there is difference of opinion among the Companions, over those mothers whose daughters have been wedded but consummation did not take place, whether they are equally unlawful. According to the great majority, the case is “unclear” and hence such alliances should be avoided (Ibn Jarir, Ibn Kathir).

99. Accordingly, adopted son’s wives are not prohibited (Ibn Kathir, Shawkani).

100. Hence, if a person embraces Islam and has two sisters as his wives, he will be required to divorce one as the Prophet ordered a Companion to do. The hadith is in Tirmidhi, of hasan status, as also in Abu Da’ud (Ibn Kathir). Adds Shafi`: The fuqaha’ have laid down a formula viz., every such two women are unlawful to a man to keep together in wedlock, where, if one of them were to be a male, he would be prohibited from marrying the other.

101. The term “muhsanah” signifies literally “a woman who is fortified [against unchastity]”, and carries three senses: (1) “a married woman”, (2) “a chaste woman”, and (3) “a free woman” (Asad). Occurring as it does, there have been several interpretations of the word. The majority opinion is that those Muslim women are meant who are already married to someone (Au.). Majid adds: “This repudiates extreme communist doctrine that, within the community, every woman may be the wife of every man, and any man could cohabit with any woman, as also the custom in many savage tribes of lending and exchanging wives. ‘The custom of lending wives is wellnigh universal among savages.’ (ERE, I, p. 125)”. The use of the word “savages” by the Encyclopaedia is ironic, for in many parts of the civilized world today, such practices are not as scarce as one would imagine (Au.).

102. Abu Sa`id al-Khudri has reported (in a hadith of Muslim, Abu Da’ud and Nasa’i: Ibn Kathir), that the Muslims took pagan women as prisoners in the battle of Awtas (Ghazwatu Hunayn: Au.). They were uncertain about those women being lawful to them. Allah revealed this verse. Thus sexual relationship with them was declared lawful on condition of completion of one menstrual cycle prior to intercourse (Ibn Jarir).

103. Ibn `Abbas, Ubayy b. Ka`b, Sa`id b. Jubayr and Suddi have, on the basis of this verse, argued about the validity of mut`ah marriage. But the rest of the Companions were of the opinion that mut`ah marriage, which was more than once made lawful and then declared unlawful during the life of the Prophet, is now invalid and unlawful. The consensus is based on a Qur’anic verse as well as several ahadith. The verse in question is (23: 5-6):

وَالَّذِينَ هُمْ لِفُرُوجِهِمْ حَافِظُونَ (5) إِلَّا عَلَى أَزْوَاجِهِمْ أَوْ مَا مَلَكَتْ أَيْمَانُهُمْ فَإِنَّهُمْ غَيْرُ مَلُومِينَ [المؤمنون : 5 ، 6]

“Those who guard their chastity, save against their wives or what their right hands own, such indeed are free of blame.” One of the ahadith is in the Sahihayn which reports `Ali as saying that,

عَنْ عَلِيِّ بْنِ أَبِي طَالِبٍ رَضِيَ اللَّهُ عَنْهُ أَنَّ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ نَهَى عَنْ مُتْعَةِ النِّسَاءِ يَوْمَ خَيْبَرَ وَعَنْ أَكْلِ لُحُومِ الْحُمُرِ الْإِنْسِيَّةِ.

“The Prophet forbade mut`ah marriage and meat of the domestic donkey on the day of Khyber campaign.” Muslim has another hadith which reports that on the day of the fall of Makkah the Prophet said:

يَا أَيُّهَا النَّاسُ إِنِّي قَدْ كُنْتُ أَذِنْتُ لَكُمْ فِي الِاسْتِمْتَاعِ مِنْ النِّسَاءِ وَإِنَّ اللَّهَ قَدْ حَرَّمَ ذَلِكَ إِلَى يَوْمِ الْقِيَامَةِ فَمَنْ كَانَ عِنْدَهُ مِنْهُنَّ شَيْءٌ فَلْيُخَلِّ سَبِيلَهُ وَلَا تَأْخُذُوا مِمَّا آتَيْتُمُوهُنَّ شَيْئًا

“People. I used to allow you mut`ah marriage. But Allah has now made it unlawful until the Day of Judgment. Therefore, if there is anyone who has contracted such a marriage, let him terminate it. But do not take back whatever you have given them.” Muslim has another report according to which mut`ah was declared unlawful during the Farewell Hajj (Ibn Kathir). The Arabic text is as follows: ع

َنْ الرَّبِيعِ بْنِ سَبْرَةَ عَنْ أَبِيهِ أَنَّ رَسُولَ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ نَهَى يَوْمَ الْفَتْحِ عَنْ مُتْعَةِ النِّسَاءِ.صحيح مسلم

`Umar (ra) in fact is reported to have said:

لاَ أُوتَى بِرَجُلٍ تَزَوَّجَ امْرَأَةً إِلَى أَجَلٍ إِلاَّ رَجَمْتُهُ

“I shall not find a man contracting a mut`ah marriage but shall stone him to death.” (Kashshaf) About Ibn `Abbas himself, it is reported that a little before his death he withdrew his opinion about the validity of mut`ah marriage when he came to know of the abrogating commandment (Kashshaf, Shawkani). Muslim’s hadith shows that it was `Ali who convinced him of the abrogation (Shafi`). Shafi` comments: Indeed, there is a narration to this effect by no less a person than Ibn `Abbas himself in Tirmidhi. It goes like this: “Ibn `Abbas said,

عَنْ ابْنِ عَبَّاسٍ قَالَ إِنَّمَا كَانَتْ الْمُتْعَةُ فِي أَوَّلِ الْإِسْلَامِ كَانَ الرَّجُلُ يَقْدَمُ الْبَلْدَةَ لَيْسَ لَهُ بِهَا مَعْرِفَةٌ فَيَتَزَوَّجُ الْمَرْأَةَ بِقَدْرِ مَا يَرَى أَنَّهُ يُقِيمُ فَتَحْفَظُ لَهُ مَتَاعَهُ وَتُصْلِحُ لَهُ شَيْئَهُ حَتَّى إِذَا نَزَلَتْ الْآيَةُ إِلَّا عَلَى أَزْوَاجِهِمْ أَوْ مَا مَلَكَتْ أَيْمَانُهُمْ قَالَ ابْنُ عَبَّاسٍ فَكُلُّ فَرْجٍ سِوَى هَذَيْنِ فَهُوَ حَرَامٌ

Muta`ah was lawful in early days of Islam when a man came to a place where he knew no one and so he would marry a woman for the period of his stay so that she could look after his things and attend to some of his affairs, until the verse came down (23: 5-6): ”... Save with their spouses and what their right hands possess."’ Ibn `Abbas then added, “Therefore all kind of sex save with these two categories is forbidden.” Mufti Shafi` also writes: As the mut`ah marriage, in which one marries for a short while by paying a price and spelling out the term “mut`ah”, any temporary marriage is also unlawful, in which a period is specified (even if of several years: Au.) after which the pair would part company. Misyar marriage comes close to the above, and it is prohibited by consensus. In our own times, some Fuqaha’ allowed a certain kind of Misyar marriage on certain conditions, but they were widely criticized and so they withdrew the permission (Au.).

104. That is, there is no sin upon either of the two, husband and wife, if after marriage they agree upon either increase or decrease in the dower amount, or on deferring its payment, or the wife forgiving it altogether (Ibn Jarir).

105. Majid states: “A bondwoman at the time of her capture must be an unbeliever. ‘Though the creation of the status of slavery is a public right, once it has been brought about, it becomes transmitted into a private right in the nature of property. Hence though a Muslim cannot be made a slave, yet if an infidel becomes Muslim, he still remains a slave, for otherwise the proprietary rights of the master would be affected’” (Abdur Rahim). Mawdudi comments: 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 in order to establish that she is not already pregnant. (3) Only that person to whom a female captive has been entrusted has the right to have sexual relations with her. ... 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. (4) If a 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. (5) Although the Law has fixed the maximum number of wives at four, it has set no limit with regard to the 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" (abridged). There are one or two other points that are lost sight of when discussions about slave-girls take place. One of them is the fact that it is not the aristocratic ladies who were taken captives in wars who shudder at the idea and have a repulsive feeling for a religion that allows it. The rules of war in those days were well known and respectable ladies stayed away from the battlefields, never participating in any activity of war. In fact, even the commoners of the female society stayed away. It was always the lowest of the low, the poorest of the poor, the unsupported of a male, that agreed to accompany men to the battle fields. (This could be a reason why, perhaps, Islam disapproved of Muslims marrying slave-girls). In fact, most women who went into the battle-fields could already be slaves, to whom the prospect of a change of masters would not sound dreadful at all. In some cases it could even be welcome. The oppressed ones among them could even be trying to “fall” into enemy hands so they could get rid of their tyrannical masters. And, if the enemy lands happened to be richer, its people generally more affluent, and, additionally, more civilized, then surely slave-girls would be more than willing to fall into enemy hands. As for sexual relations with their masters, little difference it would make to them. Did they not have sexual relation with their past masters? Were they not sent by their masters to visiting friends for their gratification? Again, the fact should be kept in sight that the whole affair - of Muslim masters having sex with their slave-girls - has a human dimension to it. It is not possible that a man has prolonged sexual relations with a woman, exclusively his, and he does not find softness for her creeping in his heart. And, if the slave-girl happened to adjust herself quickly to the manners, etiquette and culture of her master, surely he would not find it easy to part company with her. If he sold her, it would be like giving away a piece of his heart. Thus, by allowing masters to have sexual relations with their slave-girls, prohibiting all others to have similar relations with her, Islam took the lowest of the low - the side-walk and slum dwellers of non Muslim societies - and integrated them into a far more superior society, where they found not only a permanent shelter, two square meals a day, satisfaction of their sexual urges, but also some respect and a little love. There was some good reason why Islam spread so fast in its early days (Au.).

106. That is, such a man might marry Muslim slave-girls owned by others, and not - as goes the unanimous opinion - his own slave-girls since if he marries one of them the two rights - of a wife and of a slave-girl - will overlap and clash with each other (Shawkani). However, if he does wish to marry his slave-girl, he should first free her and then marry her, if she would agree. The Prophet has encouraged that a man educate his slave-girl, free her and then marry her (Au.). Shabbir writes: If a man has a free woman in marriage, it is unlawful for him by consensus of opinion that he marries a slave-girl. Adds Shafi`: Slaves were technically only those in earlier times who were taken prisoners in the battle-fields. With the abandonment of jihad by the Ummah, there is no way a person can be made a slave now. Those children who are sold out by their parents (for economic reasons) do not become slaves (and the transaction is illegal).

107. The translation follows the explanation offered by Ibn `Abbas, Suddi, Mujahid, Qatadah and Dahhak who have explained (Tabari, Ibn Kathir) muhsinat as free, chaste women, musafihat as prostitutes and muttakhidhat akhdan as those who have secret boy friends (Au.).

108. There is some difference of opinion among the Salaf over the meaning of the term uhsinna: whether it means their acceptance of Islam, which happens to be the opinion of Ibn Mas`ud, Sha`bi and Suddi, (as well as of Ibn `Umar, Anas, Aswad b. Yezid, Zirr b. Hubaysh, Sa`id b. Jubayr, `Ata’, Ibrahim Nakha`i: Ibn Kathir), or, it is their being married which is the opinion of Ibn `Abbas, Mujahid, Sa`id ibn Jubayr, Hasan and Qatadah) - Ibn Jarir. As for an unmarried slave girl, the punishment of lashes for fornication is rescinded. This is the opinion of Ibn `Abbas and Sa`id b. Jubayr. She might be punished by the judges in ways other than lashes (Ibn Kathir).

109. Qurtubi writes: “This (halving of the punishment) is because punishments are proportionate to blessings conferred. The Prophet’s wives were, for instance, told (33: 30):

ﯫ ﯬ ﯭ ﯮ ﯯ ﯰ ﯱ ﯲ ﯳ ﯴ ﯵﯶ ﯷ ﯸ ﯹ ﯺ ﯻ ﯼ

“O wives of the Prophet, whoever of you comes with a clear indecency shall face a twofold punishment." That is, when blessing was increased, punishment was also increased. Following this rule, when blessings of slave-women were decreased, their punishment was also decreased." Majid states: “... (Since slave-women) do not have the same advantages of sound education, good upbringing, etc., as the respectable free women enjoy, (they) are therefore not subject to the same degree of responsibility. The corruptions of life under which a slave has to work and live makes it plain that, while purity is always hard to attain, slavery makes it far more difficult.” Abu Hurayrah and Zayd b. Khalid have reported that the Prophet was asked about an unmarried slave girl who commits fornication. He said:

إِنْ زَنَتْ فَاجْلِدُوهَا ، ثُمَّ إِنْ زَنَتْ فَاجْلِدُوهَا ، ثُمَّ إِنْ زَنَتْ فَاجْلِدُوهَا » قَالَ : فَمَا أَدْرِى فِى الثَّالِثَةِ أَوْ فِى الرَّابِعَةِ :« فَبِيعُوهَا وَلَوْ بِضَفِيرٍ

“Whip her. If she repeats, whip her again. If she repeats, whip her again. And if she repeats” - he said either the third or fourth time - “sell her away, even if it is for a piece of rope” (Ibn Jarir). The above hadith is in the Sahihayn (Ibn Kathir). As for what exactly is the punishment, the answer is, it is fifty lashes (since the punishment of stoning to death cannot be halved: Kashshaf). According to a report in Muslim, a slave-girl of the Prophet committed adultery. The Prophet ordered `Ali to whip her fifty times. He found her having post-pregnancy bleeding. He reported it to the Prophet who ordered that he wait until she recovers (Ibn Kathir).

110. The word used in the original is `anata which is employed for any harm, physical or spiritual, as said Allah in (3: 118):

ﮊ ﮋ ﮌ

“They desire that which will cause you harm” (Ibn Jarir).

111. It is reported of the Prophet by Abu Hurayrah that he said:

الحرائر صلاح البيت والإماء هلاك البيت

“Free women build the house while slave-women destroy it” (Kashshaf, Qurtubi). The above hadith has a narrator in the chain who allegedly lied (Au.). Thanwi remarks: There are several problems in marrying a slave-girl. One, the offspring of a slave-girl are also slaves which would mean enslaving one’s own offspring. Two, a slave-girl is owned by someone else. There might be a clash of interest between the master and the husband. Third, the master might sell her off anytime to someone else. And fourth, she cannot observe full hijab which would be irksome to the husband.