85. This sentence is explicit that the word nikah here has been used for the contract of marriage only. The lexicographers have greatly disputed over the real meaning of the Arabic word nikah. One group of them says that as a word it is common both for intercourse and for the contract of marriage. The second group says that in its meaning it is common for both. The third group opines that its real meaning is the contract of marriage and for intercourse it is used only figuratively. And the fourth group expresses the opinion that its real meaning is intercourse and for the contract of marriage it is used only figuratively. Each group has cited Arabic poetry in support of its view. But Raghib Isfahani has emphatically asserted this: “The real meaning of the word nikah is contract of marriage; it has been used for intercourse metaphorically. It is impossible that its real meaning be intercourse and may have been used for the contract of marriage only metaphorically.” The argument he gives is that all the words that have been actually coined for intercourse in Arabic, or in other languages of the world, are obscene and vulgar. No gentleman would like to utter them in a civilized gathering. Therefore, it is not possible that a society should use the word which has actually been coined for this act for marriage as a metaphor. For conveying this meaning only chaste words have been used in every language of the world and not obscene words.
As far as the Quran and Sunnah arc concerned, nikah is a term, which either implies only contract of marriage, or intercourse after the contract of marriage; but it has nowhere been used for intercourse outside marriage. This kind of intercourse has been called zina (adultery) by the Quran and Sunnah and not nikah.
86. This is a unique verse which was sent down probably in the same period respecting some case of divorce, and so inserted in this context. This shows that it was sent down after the preceding and before the following discourse. Below is given a summary of the legal injunctions that have been derived from this verse:
(1) Although the word “believing women” has been used, which apparently may give the impression that the law enunciated in this verse is not applicable to the women of the people of the Book, yet all scholars are agreed that this very injunction is applicable to them also. That is, in case a Muslim has married such a woman, all the injunctions relating to her divorce, dower, waiting-period (iddat) and provision at divorce are the same as of marriage with a believing woman. The scholars have also agreed that Allah’s mentioning of the believing women here in particular is actually meant to tell the Muslims that only the believing women are suitable for them. That is, although it is permissible for them to marry Jewish and Christian women, it is not proper and commendable. In other words, the Quran seems to impress that Allah expects that the believers would marry only the believing women.
(2) The word mas (to touch) here has been used for intercourse by implication. Thus, the verse apparently implies that if the husband has not had intercourse with the woman, even though he has had seclusion with her and has even touched her with the hand, she will not have to observe the waiting-term (iddat) in case of divorce. But the jurists, for the sake of precaution, have decreed that if they have had seclusion proper (i.e. seclusion during which intercourse could be possible), waiting-period will have to be observed if divorce is pronounced after it, and the waiting-period would be annulled only in case divorce was pronounced before they have had the seclusion.
(3) The annulment of the waiting-period in case of divorce before the event of seclusion means that in this case the man forfeits his right to take the woman back as his wife, and the woman becomes entitled to marry anyone she likes immediately after the divorce. But it should be borne in mind that this applies only to the divorce which is pronounced before the event of the seclusion. If a woman’s husband dies before having the seclusion, the waitingperiod that has to be observed after death will not be annulled, but she will have to pass the same waiting-period of four months and ten days as is obligatory for a married woman in normal conditions. (Iddat is the waiting-period before the expiry of which a divorced woman or a widow is forbidden to remarry).
(4) The words “then there is no waiting term upon them,” show that the waiting-period is a right of the man on the woman. But it does not mean that this is only the man’s right. It, in fact, includes two other rights as well: the right of the children, and the right of Allah or of the law. The man’s right is on the basis that he has the right to take the woman back as his wife during the period, and also on the basis that the proof of the parentage of his children, which depends on the woman’s being pregnant or otherwise, becomes established in the waiting-period. The reason for including the right of the children is that the proof of a child’s parentage is necessary for the establishment of his legal rights, and his moral status also depends on this that his parentage should not be doubtful. The reason for including the right of Allah (or the right of the law) is that even if the people and their children become heedless of their rights, the divine law requires that their rights should be protected. That is why even if a man gives a warrant to a woman that after his death or after obtaining divorce from him, there will be no waiting-period binding on her from him, the divine law will in no case annul it.
(5) “So provide for them and send them off, a graceful sending.” The intention of this injunction would be fulfilled by acting in either of the two ways: If the dower had been fixed at the time of marriage, and then divorce pronounced before the event of seclusion proper, payment of half of the dower will be obligatory, as enjoined in ( Surah Al-Baqarah, Ayat 237). To give more than what is obligatory is not binding but certainly commendable. For instance, it is commendable that besides paying half of the dower the man should let the woman retain the bridal garments, or any other articles that he had sent her for the occasion of marriage. But if no dower had been fixed at the time of marriage, it is obligatory to pay her something before sending her away, and this something should be according to the status and financial means of the man, as has been enjoined in (Surah Al-Baqarah, Ayat 236). One group of the scholars holds that something in any case has to be paid in case of divorce as an obligation whether dower has been fixed or not.
(6) “A graceful sending” does not only mean that the woman should be provided with something on divorce but this also that separation should be adopted in a gentlemanly way, without any kind of vilification. If a man does not happen to like a woman, or there has been some other cause of complaint due to which he does not want to keep the woman, he should divorce her like a gentleman and send her away. He should not start mentioning her faults and relating his complaints against her before the people so as to also prejudice them against her. This instruction of the Quran clearly shows that annexing the enforcement of divorce to the permission of a local council or court is fully against the wisdom and spirit of the divine law, for in that case there remains no chance of “sending her away gracefully”, but defamation, revilement and vilification do inevitably result even if the man does not so will. Moreover, the words of the verse also do not admit that the power of the man to divorce should be bound up with the permission of a local council or court. The verse is clearly giving the married man the power of divorce and placing on him alone the responsibility that if he wants to release the woman before touching her he must pay her half the dower as an obligation, or something else according to his means. From this the object of the verse clearly seems to be that in order to prevent divorce from being taken lightly the man should be placed under the burden of a financial responsibility so that he himself uses his power of divorce with sense, and there is no chance of an external interference in the internal affairs of the two families.
(7) Ibn Abbas, Said bin al-Musayyib, Hasan Basri, Ali bin al-Husain (Zain al-Abidin), Imam Shafei and Imam Ahmad bin Hanbal have deduced from the words, “when you marry, and then divorce” that divorce takes effect only when marriage has been contracted. Divorce before the contract of marriage is without effect. Therefore if a person says, “If I marry such and such a woman, or a woman of such and such a tribe or nation, or any other woman, she is divorced,” it will be an absurd and meaningless thing; no divorce can take effect from this. The following Ahadith are presented in support of this view:
“The son of Adam is not entitled to use his power of divorce in respect of that which he does not possess.” (Ahmad, Abu Daud, Tirmidhi, Ibn Majah). And: “There is no divorce before marriage.” (Ibn Majah). But a great number of the jurists hold that this verse and these Ahadith apply in the case when a man says to a woman, who is not his wife, “You have divorce on you,” or “I divorce you.” Saying such a thing is no doubt absurd, and is of no legal consequence, but if he says, “If I marry you, you are divorced,” this is not divorcing before the marriage, but the person is in fact declaring his intent that when the woman is married to him, she will stand divorced. Such a declaration cannot be absurd and without effect, but, as a matter of fact, whenever the woman is married to him, divorce will fall on her. The jurists who hold the view have further differed as to what extent this kind of divorce will have effect.
Imam Abu Hanifah, Imam Muhammad and Imam Zufar hold that divorce will take place in any case whether a person specifics a woman or a tribe or a nation, or talks generally so as to say. “Any woman whom I marry is divorced.” Abu Bakr al-Jassas has cited the same opinion also from Umar, Abdullah bin Masud, Ibrahim Nakhai, Mujahid and Umar bin Abdul Aziz (may Allah show mercy to them all).
Sufyan Thauri and Uthman al-Batti say that divorce will take place only in case the person says, “If I marry such and such a woman, she is divorced.”
Hasan bin Salih, Laith bin Saad and Amir ash-Shabi, say that such a divorce will take place even if something is said in general terms provided that a particular class of the people has been mentioned; for instance, if the person has said. “If I marry a woman of such and such a family, or such and such a tribe, or such and such city or country or nation, she is divorced.”
Ibn Abi Laila and Imam Malik, disputing the above opinion, have added a condition that the time limit also should be determined. For example, if the man said: “If I marry within this year or the next ten years such and such a woman or a woman from such and such a class, she is divorced,” divorce will take place, otherwise not. Imam Malik also adds that if the time limit is so long that the man is not expected to outlive it, his declaration will have no effect.