Verse:15 Commentary Sequence

In previous verses, the objective was to correct the malpractices of the days of ignorance committed about orphans and inheritances. The people of jahiliyyah also used to subject women to cruel treatment. They had certain other evil customs also, such as marrying prohibited women.

The present verses are meant to correct such customs, however, it has been permitted that if a woman commits a proven guilt, she can be punished. This subject of correcting the evil customs will continue through the next two or three sections.

Commentary

These verses prescribe punishments for men and women who commit zina, (adultery or fornication). If this comes from women, the first verse requires the presence of four male witnesses to prove it. It means that the executive authority before which the case goes should call for four qualified witnesses to prove zinc. Then, it is necessary that all the witnesses are male. The testimony of women in this connection is not valid.

Since the guilt of zina is of extremely grave nature which not only violates honour and modesty, but also brings bad name to the family, Islam has taken very strict attitude while setting the standard of evidence to prove this guilt. Firstly, there came the condition that witnesses have to be men; the evidence of women was not considered valid. Secondly, the number of the required witnesses is raised to four. As obvious, this condition is very hard to meet. It is something which can very seldom take place. This strict approach was taken so that the husband of the woman, his mother or (another) wife or sister do not level undue accusations against her out of personal spite. It was also to check that other ill-wishing people do not get any chance to release their personal hostility by accusing her falsely. Testimony to zina by less than four individuals renders their evidence invalid in which case the complainant and the witnesses may all be charged as liars and the Hadd of Qadhf (punishment for false accusation) becomes operative against them for having falsely accused a Muslim.

It has been very clearly said in Surah An-Nur:

لَّوْلَا جَاءُوا عَلَيْهِ بِأَرْ‌بَعَةِ شُهَدَاءَ ۚ فَإِذْ لَمْ يَأْتُوا بِالشُّهَدَاءِ فَأُولَـٰئِكَ عِندَ اللَّـهِ هُمُ الْكَاذِبُونَ ﴿13﴾

which means that those who cannot produce four witnesses are liars.

Some revered elders, describing the wisdom behind the need to have four witnesses, have said that since this case involves two ; individuals, man and woman, this one single case comes, so to speak, under the purview of one rule for two cases. Since each case requires two witnesses, so four witnesses will be necessary in this case.

Towards the end of the verse, it is said that should they both repent and correct themselves, then, leave them. It means that, in case they have repented after punishment, they should not be disgraced and punished any more. It does not mean that the act of repentance has absolved them of the punishment because this repentance has been mentioned after punishment as obvious from the ramification of the letter fa' (literally, "then, turn away", which has been left as under-stood in the present translation). However, in case repentance has not been made, reproach is in order even after punishment.

No definite حدّ Hadd (punishment) has been described in these two verses of the Holy Qur'an. What has been said here is limited to "torture them" and "confine the fornicating women to their homes". No particular method of such "torture" has been described either, and this has been left to the discretion of the authorities. Sayyidna Ibn ` Abbas ؓ ، says that torture here means that they should be verbally reproached and put to shame, as well as, given physical punishment such as hitting with hands and shoes ... This statement reported from Sayyidna Ibn ` Abbas ؓ appears to be illustrative. The fact of the matter is that this whole thing has been left to the discretion of the authorities.

In the order of revelation, the injunction 'to torture' the adulterers came first, and it was later that the women guilty of adultery were ordered to be 'confined to their homes'. While giving this command, the Holy Qur'an has mentioned two limits for the period of their confinement. The words used are: "Confine those women to their homes until death overcomes them or Allah prescribes a way for them". It means that such women shall be confined to their homes till their death, however, if Allah prescribes some other punishment for them while they are still alive, then that punishment will replace the punishment of confinement. That new (expected) punishment has been referred to in this verse as 'a way' prescribed by Allah. Later this 'way' as promised in this verse was prescribed and was revealed. Interpreting the word 'way' used in this verse, Sayyidna Ibn ` Abbas ؓ says, یعنی الرجم للثیب و الجلد للبکر (that is, stoning to death, for the married and lashing for the unmarried.) (al-Bukhari, Kitab al-Tafsir, v.2, p. 657)

This "way" stands proved through clear statements of the Holy Prophet صلى الله عليه وسلم himself where the relevant injunctions for the married and the unmarried have been described separately. The Holy Prophet صلى الله عليه وسلم had pronounced the Hadd punishment of zina in the case of Sayyidna Ma` iz ibn Malik ؓ and a woman from the tribe of Azd. Since both of them were married, they were stoned to death. In addition to that, a couple from among the Jews of Madinah was also stoned to death because of zina and this judgment against them was pronounced on the authority of an injunction of Torah.

The injunction relating to the unmarried offender is mentioned in Surah al-Nur of the Holy Qur'an itself:

الزَّانِيَةُ وَالزَّانِي فَاجْلِدُوا كُلَّ وَاحِدٍ مِّنْهُمَا مِائَةَ جَلْدَةٍ

(The fornicator, woman or man, administer each one of them - a hundred lashes.) - (24:2)

A verse of the Holy Qur'an was also revealed earlier to cover the injunction of رجم rajm (stoning to death), but its recitation was later on abrogated. However, the injunction itself was retained as operative.

Sayyidna ` Umar ؓ عنہ has said:

اِنَ اللہ بعث مُحَمَّداً بلحق و انزلَ علیہِ الکتاب فکان مإَّا انزل اللہ تعالیٰ آیۃَ الرِّجم رَجَمَ رسول اللہ صلى الله عليه وسلم ورَجَمنا بعدہ والرَّج، ُ چی کتاب اللہِ حَقُّ علٰی من زَنٰی اذا احصن منِ الرِّجال ِ والنِّساءِ (بخاری و مسلم - مشکوٰۃ ص 309)

(Surely, Allah sent Muhammad صلى الله عليه وسلم with the truth and sent down to him the Book. Then, in what was revealed by Allah Almighty there was the verse of Rajm. The Holy Prophet صلى الله عليه وسلم stoned and we stoned after him and the revealed injunction of Rajm stands proved against everyone who commits zina despite being married, whether man or woman.) (al-Bukhari, Muslim, as in Mishkat, p. 309)

To sum up, the injunction of 'torturing' and 'confining to homes' which appears in these verses was abrogated after the subsequent revelation of the legal Hadd punishment of zinc, that is, one hundred lashes or Rajm will be mandatory. More details in this connection will, God willing, appear in the commentary on Surah al-Nur. Verse:16 Commentary Homosexuality

The above discussion was based on the assumptions that both verses 15 and 16 relate to the fornication or adultery committed between men and women. However, some commentators of the Holy Qur'an, including Qadi Thanaullah Panipati, are of the view that verse 16 refers to homosexual act committed between two males. Verse 16 is translated as follows:

"And those two of you who commit it (the shameful act), torture them both".

Here the Arabic word used for 'those two of you is a masculine pronoun which presumes males on both sides. On this basis, these commentators have opined that this verse relates to two males committing unnatural shameful act, i.e. homosexuality. The commentators, who take both verses as referring to fornication or adultery, refute this argument on the principle that in general usage masculine expressions include feminine also. Be that as it may, the possibility of a reference to homosexuality in this verse cannot be ruled out. Therefore, it is pertinent here to give some details about the severe prohibition of homosexuality. Here are some Traditions of the Holy Prophet صلى الله عليه وسلم and his noble Companions ؓ on this subject:

عن ابی ہریرہ ؓ ان رسول اللہ صلى الله عليه وسلم قال : لعن اللہ سبعۃ من خلقہ من فوق سبع سمٰوتہ وردّد اللعنۃ علی واحد منھم ثلاثاً و لعن کل واحد منھم لعنۃ تکفیہ، قال : ملعون من عمل عمل قوم لوط، ملعون من عمل عمل قوم لوط ملعون من عمل عمل قوم لوط ، (الحدیث)

As narrated by Sayyidna Abu Hurairah ؓ the Holy Prophet صلى الله عليه وسلم said: "Allah has cursed seven types of his creatures from above the seven heavens. He has cursed one of them thrice, while has cursed the others one time which is enough for them. (About the one whom He has cursed thrice) He has said, "Cursed is he who did what the people of لوط (علیہ السلام) Lot did. Cursed is he who did what the people of Lot did. Cursed is he who did what the people of Lot did." (At-Targhib wat-Tarhib)

عن ابی ہریرہ ؓ ان رسول اللہ صلى الله عليه وسلم قال : أربعۃ یصبحون فی غضب اللہ و یمسون فی سخط اللہ، قُلتُ : مَن ھم یا رسول اللہ ؟ قال : المشتبھون من الرجال بالنساء والمتشبھات من النساء بالرجال، والذی یأتی البھیمۃ ، والذی یأتی الرجال۔

Sayyidna Abu Hurairah ؓ عنہ reports that the Holy Prophet صلى الله عليه وسلم said: "Four types of people are, when they begin their day, under the wrath of Allah and when they reach their evenings they are under the rage of Allah." I asked: "Who are they, 0 Messenger of Allah?" He said: "Men who imitate women and women who imitate men and he who goes unto animals and he who goes unto men".

و عن انم عباس ؓ قال : قال رسول اللہ صلى الله عليه وسلم ـ من وجدتموہ یعمل عمل قوم لوط فاقتلوا الفاعل و المفعول بہ

As narrated by Sayyidna Ibn ` Abbas. ؓ the Holy Prophet صلى الله عليه وسلم said: "If you find someone doing what the people of Lot did, kill both the doer and the one with whom it is done. (op. cit.)

In At-Targhib wat-Tarhib cited above, Hafiz Zaki' al-Din has said that four caliphs, Sayyidna Abu Bakr, Sayyidna ` Ali, Sayyidna ` Abdullah ibn Zubayr and Hisham ibn ` Abdul-Malik ؓ had condemned those guilty of sodomy to the fire. In this connection, he has also related, on the authority of Muhammad ibn Al-Munkadir, an event to the effect that Sayyidna Khalid ibn Walid ؓ wrote a letter to Sayyidna Abu Bakr ؓ reporting that there was a man in a certain Arabian locality with whom they did what is done with women. Sayyidna Abu Bakr ؓ called a meeting of the noble Companions, - Sayyidna Ali ؓ being one of them. He said that a sin like that was not committed by any human group except one, and they all knew how Allah Almighty dealt with those people. He proposed that the man be condemned to fire. Other Companions concurred and Sayyidna Abu Bakr ؓ decreed accordingly.

In the Hadith narrations quoted above, the act of the people of Lut has been repeatedly mentioned. The reference is to the people to whom Sayyidna Lut (علیہ السلام) was sent as their prophet. Apart from their disbelief in the Divine Message and the Messenger, and their ascribing all sorts of partners to Allah, they were also addicted to this abominably unnatural practice. When the preachings and teachings of Sayyidna Lut (علیہ السلام) had no effect on them, the angels acted as commanded by Allah Almighty. They physically lifted the habitations of these people off the ground, then a flip upside down, and down they threw the whole thing back on the ground. Details will, Insh' Allah, appear in the Commentary on Surah al-A` raf.

The hadith narrations given above related to homosexual act. There are other narrations which carry the severest of warnings against indulging in the unnatural act (anal intercourse) with women:

عن ابن عباس ؓ ان رسول اللہ صلى الله عليه وسلم قال : لا ہنظر اللہ عَزَّ و جَلّ إلی رجل اتی رجلاً أو امرأۃ فی دبرہا

Sayyidna Ibn ` Abbas ؓ narrates that the Holy Prophet

صلى الله عليه وسلم said: "Allah Almighty does not look (mercifully) at the person who commits anal intercourse with a man or woman."

عن خزیمۃ بن ثابت قال : قال رسول اللہ صلى الله عليه وسلم : اِنَ اللہ لا یستحی من الحق، ثلاث مرَّات ، لا تأتوا النساء فی أدبارھن

Sayyidna Khuzaimah ibn Thabit says that the Holy Prophet صلى الله عليه وسلم said : Allah does not get embarrassed by stating the truth. He said this thrice. Then, he said: "Do not go unto women anally."

عن ابوہریرہ ؓ أن رسول اللہ صلى الله عليه وسلم قال : ملعون من أتی امرأۃ فی دبرھا

Sayyidna Abu Hurairah ؓ narrates that the Holy Prophet صلى الله عليه وسلم said: "Cursed is he who goes unto women anally." (At-Targhib wat-Tarhib)

وعنہ أن رسول اللہ صلى الله عليه وسلم قال : من أتی حایضاً أو امرأۃ فی دبرھا أو کاھناً فصدَّقہ ، فقد کفر بما انزل علی محمد صلى الله عليه وسلم

He also narrates that the Holy Prophet صلى الله عليه وسلم said: "One who goes unto a woman in menstruation, or in her anus or goes to a soothsayer ( کاھِن kahin) and accepts his statement relating to the unknown, then, such people have rejected what was revealed to Muhammad صلى الله عليه وسلم "

As for a fixed punishment for this evil act, there is a difference of opinion among Muslim jurists, details of which are available in books of Fiqh. Nevertheless, the nature of such punishments reported by them is as severe as it can be, such as, burning into fire, bashing under a wall felled over, throwing down from a height, stoning and beheading with a sword. Verse:17 Commentary Repentance was mentioned in the previous verse. Now, given in the present two verses are conditions under which repentance is or is not accepted.

Commentary

Repentance from a deliberate sin

At this point, it should be noted that the Holy Qur'an has used the words "in ignorance" which apparently gives an impression that the repentance may be accepted when a sin is committed unintentionally and unknowingly. But if it is committed deliberately, it will not be acceptable. However, according to the explanation of this verse given by the noble Companions, may Allah be pleased with them all, the word, جھالہ 'jahalah" (ignorance) here does not mean that a sinning person is not aware of a sin as sin, or has no intention or volition to commit a sin. Instead, it means that it was the insensitivity and heedlessness of a person towards the evil end of sin and its ultimate punishment which became the cause of his audacity to venture into sin, even though he knew a sin as sin, and had approached it with intention and volition as well.

In other words, the word, 'jahalah" or ignorance used here is in the sense of carelessness or stupidity. This is supported by an evidence in Surah Yusuf. Sayyidna Yusuf (علیہ السلام) (Joseph) had said to his brothers: هَلْ عَلِمْتُم مَّا فَعَلْتُم بِيُوسُفَ وَأَخِيهِ إِذْ أَنتُمْ جَاهِلُونَ ﴿89﴾. Here the brothers have been called, ' jahilun", the ignorant ones, although what they did was not the outcome of any error or forgetfulness but they had done that knowingly and with full deliberation. Yet, it is because of their heedlessness towards the evil end of their act that they have been called 'jahil" (ignorant).

Abu al-` Aliyah and Qatadah ؓ report that the noble Companions, may Allah be pleased with them all, agreed that کل ذنب اصابہ عبد فھو جھالۃ عمداً کان أو غیرہ ، that is, 'any sin committed by a servant of Allah is, anyway, an act of ignorance, be it deliberate or otherwise.'

The master of exegesis, Mujahid said: کل عامل بمعصیۃ اللہ فھو جاھل حین عملھا "Everyone who is doing anything in disobedience to Allah is, for that matter, ignorant while doing it," even though, on the outside, he may appear to be a person of great learning. (Ibn Kathir)

In his Tafsir, al-Bahr al-Muhit, Abu Hayyan has said: This is just like what has been reported in a hadith لا یزنی الزانی وھو مؤمن ، that is, 'a person who commits zina (adultery) will not be doing so while in a state of being a true Muslim.' It means that the time when he succumbed to the temptation of this evil act, that was the time when he was flung far off from the demand of his faith. For this reason, Sayyidna ` Ikrimah ؓ said : امور الدنیا کلّھا جھالۃ that is, 'everything one does in this mortal world - outside the framework of obedience to Allah - is ignorance.' The logic is very obvious since the person disobeying Allah is preferring short-lived pleasures over those everlasting; and, anyone who takes the punishment which will last forever and ever in exchange for this short-lived series of pleasures cannot be called rational, sensible or smart. Such a person would be universally termed as ignorant, even if he knows the evil of his act and has all the intention and resolve to go ahead with it.

The gist of the discussion so far is that the sin that a man commits, deliberately or mistakenly, gets committed due to nothing but jihalat' or ignorance. Therefore, there is a consensus of the entire Muslim ummah on the principle that the repentance of a person who commits some sin deliberately can also be accepted. (al-Bahr a1-Muhit)

Incidentally, there is another point worth attention in the present verse which prescribes a condition for the acceptance of repentance - that one should repent soon without delaying it. The Qur'anic words are: "Shortly thereafter". At does "shortly" signify and how much time will come within the limit of "shortly"? The Holy صلى الله عليه وسلم has himself explained this in a hadith in the following words: اِن اللہ یقبَلُ توبۃَ العبد مالم یغَرُغِرُ . The hadith means that Allah Almighty accepts the repentance of His servant until the time he passes into the throes of death and his soul struggles to get out of his rattling throat.

Muhaddith Ibn Marduwayh has narrated from Sayyidna ` Abdullah ibn ` Umar ؓ that he heard the Holy Prophet صلى الله عليه وسلم saying: 'A believing servant of Allah who repents from his sin a month before his death, or repents a day or a moment earlier, Allah Almighty shall accept his repentance, the condition being that the repentance should be genuine and sincere. (Ibn Kathir)

In short, the explanation of "min qarib" (shortly thereafter), given by the Holy Prophet صلى الله عليه وسلم himself tells us that virtually man's whole life-time comes under "qarib" and, as such, any repentance which is offered well-before death shall be acceptable. However, the repentance made by man while in throes of death is not acceptable.

Maulana Ashraf Thanavi (رح) in his Tafsir Bayan al-Qur'an, has elaborated the subject by saying that man faces two conditions when close to death. Firstly, there is the condition of utter hopelessness when all medicines and efforts fail and man comes to realize that death is round the corner. This is known as the state of بأس i.e., conscious suffering. The second condition relates to what comes after, that is, when the pangs of the departure of human soul begin and the fated time of ghargharah (the onomatopoetic rattling sound emerging from the throat, a herald of approaching death) comes close. This is known as the state of بأس i.e., total despair. The first condition, that is, the condition of conscious suffering comes within the sense of مِن قرِیب "min qari'b" and the repentance made at that time is accepted; but, the repentance in the second condition, that is, the condition of total despair, is not acceptable, for this is a condition when the angels and things belonging to the Hereafter may start appearing before the dying person, and they are not included in the sense of "min qarib".

This explanation given by the Holy Prophet صلى الله عليه وسلم has been pointed out by the Holy Qur'an itself in the following verse (i.e. verse 18) where it is expressly mentioned that repenting, after the sure signs of death are visible, is not accepted.

So, in the light of this explanation the addition of "min qarib " (shortly thereafter) in this verse serves to indicate that the very life-span of man is limited in time, and death, which he may think is far away, may actually be quite near.

" Relenting taken by Allah upon Himself" is a form of promise the fulfillment of which is certain. Otherwise the truth is that Allah Almighty does not necessarily owe anything to anyone.

The second verse (18) describes those whose repentance is not acceptable with Allah, those who fearlessly go on committing sins throughout their entire lives yet, when death stands on their head and the withdrawal of their soul is set in motion and the angels of death start becoming visible, they start offering repentance. How could their repentance become acceptable when they kept running wild with their lives and wasted all opportunities of repenting while there was still time to repent. This is very much like Pharaoh and his people who called out while drowning that they were ready to believe in the Lord of Musa (Moses) and Ha-run (Aaron) ہارون (علیہ السلام) . Naturally, they were told that their declaration of faith at that time was of no consequence, because the time set for it was all over.

The same thing has been pointed out in the last sentence of the verse which says that Allah also does not accept the repentance of those who die while they are still disbelievers. What is the worth of a declaration of faith right in the middle of one's match with death facing the pangs of the withdrawal of they soul from the body? This confession or this declaration of faith is out of tune with the time and quite worthless now as their punishment stands prepared for them.

What is repentance?

After the literal explanation of these two verses, it seems necessary to define Taubah or repentance and determine its real nature and status. In his اَحیا العلوم 'Ihya' al-` Ulum, Imam al-Ghazali (رح) has identified three different situations with regard to committing sins:

The first state is that of total sinlessness, that is, no sin has ever been committed. This is either the hallmark of angels or that of the prophets, may peace be on them. The second stage of getting involved in sin comes when one takes the initiative and ventures into sin and then repeats and persists with it, never feeling ashamed or regretful and never thinking of stopping and abandoning it. This is the degree of the satans and the devils. The third station belongs to human beings, the children of Adam who, immediately after having committed a sin, regret it and resolve firmly not to go near it in future.

This tells us that failing to repent after committing a sin is the style of devils exclusively. Therefore, it is the consensus of the entire Muslim ummah that Taubah is obligatory. The Holy Qur'an says:

يَا أَيُّهَا الَّذِينَ آمَنُوا تُوبُوا إِلَى اللَّـهِ تَوْبَةً نَّصُوحًا عَسَىٰ رَ‌بُّكُمْ أَن يُكَفِّرَ‌ عَنكُمْ سَيِّئَاتِكُمْ وَيُدْخِلَكُمْ جَنَّاتٍ تَجْرِ‌ي مِن تَحْتِهَا الْأَنْهَارُ‌

(0 those who believe, repent before Allah, a sincere repentance; may be your Lord removes from you your sins and admits you to gardens beneath which rivers flow.) (66:8)

How generous is the mercy of our Lord! A man spends a whole life-time in disobeying Him. Nevertheless, when he repents sincerely before his death, not only his sins are forgiven, but he receives much more when he is admitted into the circle of favoured servants of Allah and made an inheritor of Paradise.

In a hadith, the Holy Prophet صلى الله عليه وسلم has been reported to have said: التَّایٔب حبیب اللہ والتایٔب منَ الذَنّبِ کمن لاذنبَ لَہ that is, 'one who repents from sin is loved by Allah and one who has repented from sin is like one who had never committed a sin.' (Ibn Majah)

According to some narrations, if a servant of Allah repents from a sin and his repentance finds acceptance with Him, he is not only absolved from having to account for it, but the very record in writing posted by the angels is erased out from his book of deeds so that he may not be disgraced either.

However, what is necessary is that the repentance is genuine and is offered in sincerity. This repentance stands on three pillars. Firstly, one should regret over and feel ashamed about what he or she has done. According to hadith, اِنَّما التَّوبۃُ النِّدم that is, 'Taubah is (another name of) remorse'. Secondly, one should immediately leave off the sin he has committed and he should, for the future too, firmly resolve to stay away from it. Thirdly, one should think of making amends for what has gone by, that is, he should try to take measures to rectify what has happened in sin to the best of his ability. For example, if he has missed a prayer or a fast, he should make up for it by doing what is known as qada (compensatory worship). If one does not remember the correct number of such missed prayers and fasts, he should think, calculate and come to an-estimated number and then go on to offer qada for these in all seriousness. If one finds it impossible to do so all at one time, he could offer, with each salah due at its time, one qada of each salah he missed throughout his life, which is commonly known as ` umri gada. In the same way, one should do his best to make up, as and when convenient, for obligatory fasts he missed by offering qada fasts. May be one has not paid the obligatory zakah due on him; he should, then pay the zakah due on him for previous years as well, paying it all or paying it gradually. God forbid, if one has usurped someone's right, he should return it back to him and if he has hurt someone, he should seek his forgiveness. But, should it be that one does not regret what he has done, or, despite being regretful, he does not leave off that sin for future, then, this repentance is no repentance even though it may be said a thousand times, as so delightfully put in verse by a Persian poet:

توبہ بر لب سبحہ برکف دل پُر از ذوق گناہ

معصیت را خندہ می آید از استغفارِ ما

Repentance on the lips, rosary in hand and a heart full of the taste of sin, Sin laughs at my style of seeking forgiveness!

The point being made here is that man, once he repents as stated earlier, and despite having been in all sorts of sins, becomes a servant dear to Allah. And should it ever be that, out of human weakness, one does fall into sin yet another time, he should immediately renew his repentance in the fond hope that this time, like every other time, Allah Almighty shall, being Most-Forgiving, relent towards him. Let me conclude with yet another Persian couplet which says:

ایں درگہ ما درگہِ نومیدی نیست

صد بار اگر توبۃ شکستی بازآ

This is the Court of My Presence, not the Court of Despair.

Even if you have broken (the promise in) your repentance a hundred times, come again! Verse:18 Commentary - - - Verse:19 Commentary Sequence of verses

Repentance was mentioned in the previous verses in proportion to the related requirement of the text. Before this, there was a series of injunctions pertaining to women. The present verses too carry some more imperatives against the excesses suffered by women at the hands of their husbands, even heirs. Details appear in the Commentary.

The aim is to correct such social disorders. It may be noted that husbands have been particularly addressed in وَعَاشِرُ‌وهُنَّ (live with them). Verses 20 and 21 conclude the subject.

Commentary

Women before Islam: Eradication of Injustices

Given in these three verses are steps taken to eliminate injustices to which women were commonly subjected:

1. The most glaring of these was that men used to act as owners of the life and property of women, so much so, that a woman taken in marriage was passed on as a piece of property after her husband's death, on to his heirs. They were considered as the new owners and inheritors of the property, plus the wife. They could, if they wished to, marry her or give her in marriage to somebody else against payment. The son of the husband from another wife could himself marry her after the death of his father. When a living human being has been taken as an article of ownership, what would have happened to the normal property is all too obvious. This one basic social ill became the cause of hundreds of other unjust practices against women, some of which are pointed out below:

(a) If a woman received some property in inheritance or some gift from her parents, the poor thing stayed deprived of it. Everything received in her name was devoured by men at her husband's home.

(b) If, somehow the woman did come in possession of her share of the property, men would prevent her from remarrying so that she could not take her share out of the house - they wanted her to die right there where she was, leaving her property which they could possess after her.

(c) In some places there was the practice that if the husband did not like his wife because of whimsical factors and not because of any shortcoming of the wife, then, while he skipped relating to her as his wife, did not get rid of her by giving her a divorce. This was to harass her to the limit that she was forced to give him back the jewellery and dower money he had given her; or, if he had not yet given these as due, he expected that she would forgo her claim before she could hope to be released. There were situations when the husband, despite having divorced her would not let the divorced wife remarry so that she breaks up and returns to him the amount of dower he had given her, or forgoes the dower still unpaid.

(d) On occasions, following the death of her husband, his heirs would not let the widow remarry. They would do so either to satisfy their false sense of prestige, or to let her go only after they get some-thing for themselves in the deal.

As said earlier, all these injustices were perpetrated on the basis of the central assumption that man owned not only the property but also the very life of the woman. The Holy Qur'an struck at the very root of this evil which produced other injustices and openly declared:

يَا أَيُّهَا الَّذِينَ آمَنُوا لَا يَحِلُّ لَكُمْ أَن تَرِ‌ثُوا النِّسَاءَ كَرْ‌هًا

O those who believe, it is not lawful for you that you should forcibly take women as inheritance.

The word "forcibly" does not appear here as a condition which would have given the impression that their becoming owners of women with the latter' s approval was all right, but this restriction has been introduced here as a statement of fact. It means that taking over the charge of the life and property of women as self-appointed owners without any legal or rational basis whatsoever could, obviously, be only "forcibly". How could a woman, in her normal senses, ever agree to such a proposition? (a1-Bahr al-Muh, it). This is why the Shari'ah of Islam does not accept her approval in this matter as effective. If any woman, so out of her mind, approves of being owned by somebody, the Islamic law is not willing to concede this position.

The common method of preventing injustice and disorder would be to use a prohibitive order, but the Holy Qur'an has avoided this common method at this place and has expressed the element of prohibition by negating the lawfulness of this act by saying: لَا یَحِلُّ لَکُم 'it is not lawful for you'. Here, in addition to stressing upon the severe sinfulness of this matter, the purpose may also be to indicate that, should it be that someone does go on to marry an adult woman without her consent and permission, the marriage thus entered into shall not be lawful and, in fact, it is null and void. Being totally non-sequitur, no husband-wife relationship between the man and woman gets established from such a marriage, nor do the injunctions of inheritance or lineage follow from it.

Similarly, if someone forces a woman and takes back the dower he had given her, or compels her to forgo the outstanding dower, this forced return or forgiveness is not valid in the sight of the Shari'ah. Money or property taken in this manner do not make them lawful for the man, nor does it cause any due right to be forgiven. This subject has been further clarified in: وَلَا تَعْضُلُوهُنَّ لِتَذْهَبُوا بِبَعْضِ مَا آتَيْتُمُوهُنَّ

It means: 'Do not prevent women from marrying at their choice with the intention of taking back what you, or a relative, have already given to them as dower or gift.' So, the giving and the taking back of dower is inclusive of the incidence of making the woman forgive the dower the payment of which is due, fixed and agreed upon. Whether one forces the woman to return the dower amount already paid or forces her to forgo the dower still outstanding, both are impermissible and patently Haram (forbidden). Similarly, whatever has been given to the wife as gift, or something of which she has become the 'owner', cannot be taken back by the husband, or the heirs, for it is not lawful for them to do so. However, this rule applies only to a situation where anything has been assigned to her as an owner. If something was given to her for a temporary use, like jewellery or any other article, not making her the owner of it, then, that simply does not enter into the 'ownership' of the wife and, therefore, asking for their return is not forbidden.

The text, after that, by saying: إِلَّا أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ exempts some such situations under which it becomes permissible for the husband to take back what he has given, including the dower. It means that should the woman commit an act which is clearly shameful and which naturally compels the man to divorce her, then, this will be a situation in which it does not matter if the husband holds back the word of divorce until such time that the woman returns the dower he had given her or forgoes the outstanding dower, if that is the case.

According to Sayyidna Ibn ` Abbas ؓ ، Sayyidah A' shah ؓ and Hadrat Dahhak (رح) and others, the word, فاحشا "fahisha" (translated as 'a shameful act' ) here means disobedience to the husband and indecent abuses against him; while, Abu Qilabah and Hasan al-Bari رحمۃ اللہ علیہما take it to mean immodesty and adultery in this particular place. Thus, the sense would come to be: If these women happen to commit some shameful act or they behave disobediently and vituperatively which forces the husband to think of a divorce, then, this being a fault of the woman, the husband has the right to hold her in the bond of marriage, until he receives back what he had given her, or has the outstanding dower forgiven by her. Verse:20 Commentary The next two verses (20, 21) also enlarge upon this subject. Here it has been said that, should it be that the woman has just not shown any contumacy or immodesty, but the husband, following his own physical desire and pleasure, intends to marry another woman in her place, then again it will not be permissible for him to claim anything from her in exchange of divorce, even though he had given her a lot of wealth. Similarly, it will not be allowed for him to force her to forgo the dower due against him. This is because there is no fault of the woman and the cause which makes the dower due and payable has been vacated, that is, they have been married and have had their privacy with each other. Now, the husband has no right to take back what he has given her or make her forgo the dower.

That the taking back of this amount is an injustice and sin has been later on described in three stages.

First, it was said: أَتَأْخُذُونَهُ بُهْتَانًا وَإِثْمًا مُّبِينًا that is, 'do you want to take it through imputation and an open sin?"

This sentence refers back to the previous verse (19) where it was laid down that the husband has no right to take back the dower from his wife except when she has committed a shameful act. On the basis of this principle the present verse (20) says that if you take back the dower from your wife, it will mean that you are imputing her for a shameful act, because it is the only situation where your claim may be rightful. Since your wife has not committed a shameful act, your claim to the dower is a false imputation which is an open sin. Verse:21 Commentary Secondly, in the following sentence in verse 21, it was said: وَكَيْفَ تَأْخُذُونَهُ وَقَدْ أَفْضَىٰ بَعْضُكُمْ إِلَىٰ بَعْضٍ that is, how can you now take back what you had given her when not only the marriage has been solemnized, but you have also had access to each other in privacy? For, in this situa-tion, whatever has been given, if against dower, the woman certainly deserved it. She now owns it because she surrendered herself to her husband. The idea that it could be returned is senseless. Even if this money or property given by the husband was presented or gifted, even then, it is not possible that it could be returned because what a husband and wife give to each other as gift cannot be taken back. Such claim of its return is neither permissible in Shari` ah, nor is it legally enforced. So, marital bond prevents the taking back of what has been given as gift.

The same subject has been stated in the last sentence of verse 21: وَأَخَذْنَ مِنكُم مِّيثَاقًا غَلِيظًا (and they have taken a firm covenant from you). This 'covenant' is the bond of marriage which is solemnly attested to with the name of Allah before a gathering of people following a khutbah.

To sum up, once this marital covenant has been made and mutual privacy has brought the couple close together, to force the woman to return what was given to' her is open injustice and tyranny. All Muslims must abstain from it. Verse:22 Commentary The present verses are an extension of the description of evil practices common in Jahiliyyah which have been taken up earlier. A detailed discussion appears in the Commentary.

Commentary:

These verses give details of محرَّمات muharramat, that is, women with whom marriage is prohibited. Some of them are prohibited forever, never becoming lawful under any condition. Some are not permanently prohibited. They become lawful under some particular circumstances.

There are three kinds of permanently-prohibited women referred to in the first category. They are those by kinship, by fosterage and by relationship through marriage, and are permanently prohibited. The kind mentioned at the end remains prohibited until they are bound in marriage with someone else.

An explanation of the verses follows with relevant part of the verse appearing in the lead: وَلَا تَنكِحُوا مَا نَكَحَ آبَاؤُكُم (And do not marry those of women whom your fathers had married) (verse 22): During the days of Jahiliyyah, people had no qualms when they went ahead and married the wife of their father after his death. In this verse, Allah Almighty has prohibited this shameful practice; an evil which invites His wrath. How can someone keep calling a woman his mother for a long time and yet stoop so low as to make her his wife after the death of the father?

Ruling:

Marrying the legally wedded wife of the father has been declared unlawful in this noble verse. There is no restriction here to indicate marital consummation by the father. So, the fact that the father has married a woman is enough to forbid the son from entering into marriage with that woman. It will never be lawful. Similarly, it is not correct for the father to marry the wife of his son, even if the marriage of the son is limited to formal 'nikah' and his wife have not yet come to live with him. (Ibn ` Abidin)