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Books and Documents (25 Aug 2015 NewAgeIslam.Com)



Against Unlawful Intimacy: Essential Message of Islam: Chapter 34 To 36




By Muhammad Yunus & Ashfaque Ullah Syed

25 August 2015

(Published Exclusively On New Age Islam with Permission of the Authors and Publishers)

34.    Divorce Procedures and Conditions

34.1.       Qur’an Recognizes the Emotional Trauma of a Divorce

The Qur’an recognizes the serious emotional and financial implications of a divorce for either or both the spouses, as well as the offspring of a broken marriage. It, therefore, discourages divorce by a set of well-guarded stipulations, but allows it if the alternative was life long unhappiness for the family. The Qur’an however does not consider divorced women as a social burden. It rather protects their financial interest, and those of the children born to them from their broken marriages, permits them to remarry and treats them practically like any other unmarried women.

It is worth remembering that in pre-Islamic Arabia, as elsewhere in the world, it was the prerogative of the menfolk to divorce their wives and not the other way around. On a broader plane, the men governed human society and made the laws and the women had little say in the scheme of things – particularly, if it related to their own suppression by men. It was for these obvious reasons that the Qur’anic directives aimed at various social reforms were addressed mostly to menfolk, as the leaders of the community, and this therefore must not be construed as a reflection of gender discrimination. Lets now revert to our theme.      

In the immediate context of the revelation, the Qur’an abolishes the pre-Islamic custom that permitted a man to abandon his wife indefinitely by an oath, but retain her in wedlock, thus preventing her remarriage or freedom. It therefore declares (2:226):

“Those who vow (to abstain) from their wives must wait for four months. Meanwhile if they go back, (remember,) God is Most Forgiving and Merciful” (2:226).

 The concluding God’s attribute of Forgiveness and Mercy is suggestive of Qur’anic encouragement for reconciliation between the spouses and restoration of an effective marriage tie. However, if a man remains firm in his decision on divorce, and abandons his wife for four consecutive months, he must terminate the marriage at the end of this period and release his wife (2:227).

“However, if they decide on a divorce, (let them remember that) God is All-Knowing and Aware” (2:227).

34.2.       Principles Concerning A Divorce Initiated By A Man

Having defined a time limit of four months for the termination of a marriage by an oath (2:226 above), the Qur’an prescribes a phased execution of a divorce:

“Divorce (is pronounced) over two occasions. Thereafter live together (with your mates) honourably, or part with (Tasrihu) them honourably. It is not lawful for you (men) to take anything from what you have given them, except when both (the partners) fear that they would be unable to keep within the limits set by God. And if you do indeed fear that they would be unable to keep within the limits set by God, there is no blame on either of them if she gives up (something to her husband) for her freedom. These are the limits set by God; do not exceed them - for any who exceed the limits set by God, it is they who are unjust” (2:229).

The Qur’an asks women under notice of divorce by their husbands to stay by themselves for three months, understandably to establishing pregnancy if any; and reminds the men of their obligation to take them back if they are to be found pregnant (2:228).

“Divorced women shall wait by themselves for three monthly periods, for it is not lawful for them, if they believe in God and the Last Day, to conceal what God has created in their wombs. (During this period,) their husbands will be obliged (Ahaqqu)1 to take them back if they want reconciliation, while they (the women) have similar honourable (obligations) as them (men); but men have (a higher) degree (of obligation) towards them. (Remember,) God is Almighty, Wise” (2:228).

The foregoing consecutive verses (2:228, 2:229) indicate a timeframe of three monthly periods (Iddat) for a divorce to take effect. Thus the Qur’an brought about a reduction in the pre-divorce separation period from indefinite in pre-Islamic Arabia, to four months for a divorce by an oath (2:227 above), and then to three months in its final ordinance. The Qur’an further clarifies this in the verses 2:231 and 65:1, which also instruct men to terminate the marriage, if they must, in a decent way.

“And if you divorce women, and they reach (the end of) their term, then either live together honourably, or part with (Sarrihu) them honourably, but do not keep them to injure them, (or) to exceed limits. Anyone who does that merely wrongs his own soul. And do not take these messages of God for a joke, and remember God’s favour to you, and what He has revealed to you of the Book and Wisdom for your instruction. Therefore heed God and know that God is Cognizant of everything” (2:231).

“And when they reach (the end of) their term, then either live together honourably, or part with (Fariqu) them honourably, calling to witness two just members from among yourselves and uphold the evidence (as) before God. This is to instruct anyone who believes in God and the Last Day. (Remember,) God will find a way out for anyone who heeds Him” (65:2).

These verses clearly demonstrate that in the event a man considers divorcing his wife, he must go through a three-month timeframe, formally articulating his intention at least twice over the period. However, at the end of this period, he must either retain his wife and live together amicably or terminate his marriage in an amicable manner. He is therefore prevented from taking back anything that he might have gifted to his wife (2:229 above). Given that men divorcing their wives may detest their divorced wives walking away with the gifts they gave them – especially if those were valuable, the Qur’an declares:  

“If you want to take one wife in place of another wife, and you had given one of them a fortune - do not take anything away from it. Would you take it by slander (committing) an open sin (4:20)? How can you take it back when you have given yourselves to each other, and they have taken a firm pledge from you” (4:21)?

However, to avoid any injustice to a man who may have gifted much of his possessions to his wife, the Qur’an asks the woman under divorce to release a part of what she might have received from her husband if she felt that she was going beyond the limits set by God (2:229 above).

34.3.       A Woman Can Initiate a Divorce Unilaterally (Khul)

The underlined injunction (she gives something for her freedom) in 2:229 (above) gives a woman the privilege to take a divorce unilaterally by paying due compensation to her husband, which may include her dower (4:4/Ch. 33.4) as well as part of what she might have received from him as gifts. Such a dissolution of marriage at a wife’s insistence is called khul, and is fully supported by several traditions as reviewed by Muhammad Asad.2

34.4.       Remarriage between Spouses after Irrevocable Divorce

The Qur’an does not permit a man to marry his erstwhile wife whom he divorced after the expiry of the three months waiting period, unless she married another man, and the latter divorced her (2:230).

“If he (the husband) divorces her (at the end of the waiting period), she becomes unlawful to him afterwards until she marries another man. If he (her new husband) then divorces her, there is no blame on the (former) couple to reunite - provided they feel that they can keep within the limits set by God. These are the limits set by God, and He clarifies them to a people who have knowledge” (2:230).

There could be three reasons for this:

•        ‘To set almost impossible conditions,’ and thus discourage men from divorcing their wives, without giving very serious thought to the matter - Yusuf Ali.3

•        To ensure the right of a divorced woman to marry a different spouse, otherwise her erstwhile spouse could force her to remarry him, even after the expiry of the waiting period.

•        To prevent any scandalous manipulation by an unscrupulous couple who could set up a mock divorce for the divorced wife to court wealthy admirers, gain financial benefits, and return to her former husband.

To avoid any ambiguity on the matter, the Qur’an further declares (2:232):

“And when you have divorced women (after) they have reached their term, you must not obstruct them from marrying (there would be) spouses (Azwaj) if they have mutually agreed in a fair manner. This is instructed to anyone among you, who believes in God and the Last Day. (Remember,) this is more appropriate for you and purer; and God knows, yet you do not know” (2.232)

Many noted translators4 have put a qualifying bracket ‘(the previous)’ before ‘spouses’ (underlined above) implying that a divorced woman could remarry her former husband after expiry of her three lunar months ‘waiting period’. Such an interpretation is untenable as it is not consistent with:

•        the Qur’anic commandment to men divorcing their wives to part with them, at the end of the ‘waiting period’ (2:229, 2:231 and 65:2/34.2 above). 

•        the Qur'anic clause that a divorced woman could marry her former husband, only after she ‘marries another spouse’, and ‘he divorces her’ (2:230, above).

The qualification in the present rendering of 2:232 (shown in bold) is fully consistent with the stipulations of the noted verses, and follows those of Abul Kalam Azad, and Muhammad Asad. Moreover, the Qur’an has its own linguistic subtlety to rule out any misinterpretation regarding the finality of the ‘separation’5 at the end of the waiting period.

34.5.       Maintenance of Divorced Pregnant Wife, And the Offspring

In a clearly stated verse (2:233) the Qur’an spells out: i) the social and financial responsibilities of a man divorcing a pregnant wife, ii) the moral responsibility of his divorced wife, iii) the need for mutual consultation between them if they wished to put the child under care of a foster-mother, and iv) the responsibility of the heir of the father if a child was born posthumously (2:233).

“Mothers shall nurse their children for two whole years if they wish to complete the nursing. The father (has to) provide for them, and clothe them reasonably. No soul is to be burdened beyond its capacity. A mother should not be made to suffer for her child, nor a father for his child, while the heir (is liable) likewise. If they both wish to wean the child by mutual consent and consultation - there is no blame on them; so if you wish to give your children out to wet-nurses, there is no blame on you, provided you pay what is reasonably expected from you.6 Heed God and know that God is Observant of what you do” (2:233).

The Qur’an further elaborates its precepts to the menfolk on supporting a divorced pregnant wife (65:6), and clarifies that they should spend according to their means (65:7).

“Accommodate them (the women in Iddat) in the manner you lodge, according to your circumstances, and do not harass them to reduce them (to straits). If they are pregnant, meet their expenses until they bring forth their burden; and if they suckle (the baby) for you, give them their due, and consult together honourably. But if you find it difficult (for her health reason, or she intends to remarry), let another woman nurse (it) on behalf of him (the father) (65:6). (In all these matters) the rich should spend (according to) his abundance, but the one whose means is limited should spend of what God has given him. (Remember,) God does not burden anyone beyond what He has given him. Surely God will grant relief after distress” (65:7).

34.6.       Settlement of Dower If neither Marriage Is Consummated nor Dower Fixed 

The Qur'an directs men to give a reasonable provision to their divorced wives, even if the marriage was not consummated (2:236, 33:49).

“There (will be) no blame on you to divorce women before you have consummated (marriage) with them, or fixed their dower (Faridah), but provide for them: the rich according to his means, and the poor according to his means – a reasonable provision, a duty (Haqq), binding on the compassionate” (2:236).

“You who believe, when you marry believing women and divorce them before you have consummated (marriage) with them, you do not have to count (the waiting) period for them. So make provision for them, and part with (Sarrihu) them in a handsome parting” (33:49)

The verse 2:236 uses the term Faridah for marriage dower, as against Saduquat in the verse 4:4 (Ch. 33.4). The former connotes with a binding obligation, while the latter, with a gift, or charity. Thus, the Qur'an leaves no ambiguity about the legal position of marriage dower: it is a binding obligation of a man towards his wife, and is performed as a gesture of goodwill or charity (Saduquat).

34.7.       Settlement of Dower If Marriage Is Not Consummated, but Dower Is Fixed

The Qur’an states:

“If you divorce them before you have consummated (marriage) with them, but you have fixed their dower (Faridah), then (give them) half of what you have fixed, unless they (the women) forgo it, or the one in whose (Alladhi) hands is the marriage tie forgoes it. To forgo is nearer to heedfulness (Taqwa), and do not forget to be generous between yourselves. (Remember,) God is Observant of what you do” (2:237)

The common gender pronoun Alladhi, rendered above as whose, is traditionally identified with a husband, implying that only the husband can terminate a marriage that is yet to be consummated. But this purports to revoke a woman’s Qur’anic privilege to dissolve a marriage unilaterally under compelling circumstances (2:229/34.2 above). Therefore the pronoun Alladhi must be interpreted in its common gender form, implying that either of the couple - husband or wife can lawfully dissolve an unconsummated marriage. Based on this, the pronouncements of the verse may be broken down into the following simple tenets:

•        If a man initiates a divorce, he has to pay half the dower to the woman, unless she forgoes it.

•        If a woman breaks the marriage from her side, she has to forgo her claim on half the dower that she would have received if the man divorced her.

•        A man, who gives a divorce, has the option to forgo the exempted ‘half' part, and give full contracted dower as a gesture of generosity (fadl).

•        Both the partners of a divorce should be generous to each other, and refrain from exploiting one another.

34.8.       Maintenance for A Divorced Woman

 The Qur’an declares:

“(There shall be) a reasonable maintenance for divorced women - a duty (Haqq) binding on the heedful (Muttaqin) (2:241). Thus does God clarify His messages to you, that you may use your reason” (2:242)

The Qur’anic injunction is in broad terms: it does not say whether a man is required to make a one off provision, or give a maintenance allowance to his divorced wife until she remarries. The Qur'an however asks the menfolk to use reason. Thus, if a man is required to make a provision, commensurate to his income, to a woman with whom he has only contracted marriage but not yet consummated it (2:236/34.6 above), he must be fair and considerate to the woman he is divorcing after living together as a husband and wife. He must therefore arrange spousal maintenance, commensurate to his income, and to the financial need, age, health and circumstances of his spouse. This obviously is a matter for the court to decide, depending upon the merit of the case, the prevalent social conditions and securities, and the relative financial positions of the partners in a divorce case.

34.9.       Clarification on the Waiting Period (Iddah)

The Qur’an reminds that the waiting period should be correctly observed (65:1), and clarifies that the latter remains unchanged at three months even for women past their monthly courses, or otherwise having no courses (65:4), and lasts until the delivery for pregnant women (65:4).

“O Prophet! (Tell your followers that) when you (finally) divorce women, divorce them at (the end of) their waiting period and (correctly) calculate this period, and heed God, your Lord. Do not drive them out of their homes and neither shall they be made to leave, unless they are found guilty of adultery (Fahishatim Mubaiyinah).7 These are the limits set by God. Whoever exceeds the limits set by God, wrongs his own soul. You do not know God may subsequently bring about a new situation” (65:1).

“As for those of your wives who are past menstruation - the prescribed waiting period, if you have any doubts, should be three months, and the same (will apply for) those who have no courses. As for the pregnant (wives), their (prescribed) term will be until they deliver what they are carrying. Thus, God makes matters easy for anyone who heeds Him (65:4). This is God’s commandment, which He has revealed to you. Anyone who heeds God, He will efface his evils from him, and will reward him greatly” (65:5).

34.10.    The Qur’an Forestalls Any Manipulative Interpretation of Its Commandments

The Qur’anic dictates on divorce as discussed above date from two different periods of its revelation. The passage 2:226-242 dates from early Medinite period, while the passage 65:1-7 from mid Medinite period. The passages, separated chronologically by at least three to four years, complement each other with immaculate consistency and clarity in spelling out a husband’s obligations during a divorce. This Qur'anic repetition is understandably to help avoid (i) any misinterpretation by later generation scholars and (ii) any ambiguity on the subject.

In sum, the Qur’an deals with the process of divorce in a balanced and structured manner, so that this most agonizing experience in a person’s life is faced in a balanced and harmonious manner, and there is no bitterness and ill feelings between the erstwhile spouses.   

Notes

1.       Most commentators have connoted the Qur’anic word Haqq in 2:228 (Ch. 34.2) with ‘right’, implying that a man has the right to retain his wife under divorce notice, if she is later found pregnant. The authors have, however, connoted the word Haqq with ‘obligation’, (or duty), rather than ‘right,’ based on the following Qur’anic illustrations:

a.      Verse 2:233 (34.5 above) commands a man to bear the expenses of his divorced wife and the child she bears him after the divorce through to the entire nursing period of two years. Therefore, it should also be his responsibility or obligation to provide the emotional support to the mother and the child during the period, which he can best do by keeping the marriage.

b.      As agreed by most scholars, the Qur’an uses the word haqq with the connotation of duty in the verses 2:180 (Ch. 37) and 2:236/34.6; 2:241/34.8 above).

c.      The underlined concluding God's attributes of the verse clearly imply that God in His Might and Wisdom makes it an obligation or duty on the part of an estranged husband in such a situation to reconcile with his wife and take her back.

2.       Muhammad Asad, Message of the Qur’an, Gibraltar, 1980, Chap. 2, Note 218.

3.       Abdullah Yusuf Ali, The Holy Qur’an, Lahore 1934, reprinted, Maryland 1983, note 260.

4.       Thomas Irving (Talim Ali), Yusuf Ali, N.J.Dawood, and Marmaduke Pikthall.

5.       To denote separation at the end of the waiting period, the Qur’an uses the verb forms Sarrihu (2:231/34.2 above), Tasrihu (2:229/34.2, 33:49/34.6), and Fariqu (65:2/34.2 above), which it employs elsewhere with the connotation of total freedom of the separated members, each following its own course. Thus:

a.      Tasrahu is used to denote the free grazing of cattle (16:6).

b.      Faraqna is used for the total parting of river Nile (2:50), and Fatafarraqa, for parting from God’s straight path (6:153).

Thus, there can be no question of a woman, divorced by a husband at the end of her waiting period marrying her erstwhile spouse.

6.       The underlined words represent the traditional interpretation of the Arabic expression: Iza Sallamtum Ma Aataitum Bi Al-Ma‘Ruf. However the use of the underlined word derived from SLM root (Ch. 7), adds a dimension of well being and safety to the expression that Muhammad Asad renders as follows: “provided you ensure in a fair manner, the safety of the child you are handing over.”

7.       The Qur’an uses the term Fahishah in a generic sense for all kinds of abominable deeds (Note 4/Ch. 19), but when it qualifies this term with the word Mubaiyinah, it specifically refers to adultery committed by women as part of the pre-Islamic social norm (Note 7/Ch. 1).  

[7 references]

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35.    Status of Widows

35.1.       Widows Have Same Social Status As Unmarried Women

The Qur'an asks women to wait concerning themselves for four lunar months and ten days after the death of their husbands (2:234), and thereafter treats them like any unmarried women, permitting them to entertain marriage proposals from suitors and to restart a married life or live independently (2:234, 2:235). Its vocabulary does not even admit of the widowed status of a woman.

“Those of you who die and leave behind wives - they (the widows) shall wait by themselves (without remarrying) for four months and ten days. When they have reached their (prescribed) term, there is no blame on you for what they do with themselves honourably. (Remember,) God is informed of what you do” (2:234).

“And there is no blame on you in giving the proposal (of marriage) to such women, or keep it to yourself, for God Knows that you will mention (it) to them; but do not make any secret promises to them, except in honest and sincere terms, nor resolve on the tie of marriage, until the prescribed term matures. And know that God Knows well what is in your mind. So beware of Him; and know that God is Most Forgiving and Gracious” (2:235).

35.2.       Financial Security of a Widow

As the death of a husband could mean loss of income as well as home, the Qur’an entitles a widow, maintenance for a year without having to leave her deceased husband’s home, but gives her the option to leave earlier of her free will (2:240).

“Those of you who die and leave behind wives, should bequeath to their wives the provision for a year, without having (them) to leave (their deceased husband's home). However, if they leave (voluntarily), there is no blame on you for what they do with themselves honourably. (Remember,) God is Almighty, Wise” (2:240)

In pre-Islamic Arabia, the next of kin of a deceased man could inherit his widow as well as all of his belongings. The Qur’an therefore directs the next of kin of a deceased person leaving behind a widow, to refrain from creating any difficulty for her, nor to disinherit her of the objects and gifts she received from her late husband - unless she was openly immoral (4:19). The Qur’an also entitles a widow of a fixed inheritance, or to be a nominee of her late husband’s will as discussed later (Ch. 38).

“You who believe, it is not lawful for you to inherit (anything from your) women (Nisa) forcefully, nor should you put them under any pressure in order to take away some of what you have given them, unless they are found guilty of adultery (Fahishatim Mubaiyinah).1 So, live with them honourably. (Remember,) if you hate them, it may be that you hate a thing in which God has placed profound goodness” (4:19).

The absence of any pronominal suffix prior to the Arabic word Nisa in this verse renders it fully applicable both for (a) the widow of a kinsman as some scholars have interpreted2 and (b) the wife of a person. Thus the kinsmen of a deceased man are asked not to treat the widow of their deceased kin or her wealth as their inheritance, while a husband is barred from putting any pressure on his wife, whether he is living with her or divorcing her, to make an inheritance in his favour (such as by asking or retaining a part of dower, asking a share from her personal property or income, etc. as is commonplace in day to day life.)

On the surface, the Qur’an does not empower a woman to take care of the property of her deceased husband and leaves the matter with the community, but we must bear in mind that a woman may be widowed soon after her marriage and or without having any issue from the marriage. If this young or childless widow is empowered to manage the properties of her deceased husband she might become the sole beneficiary of his properties, while the kinsmen of her deceased husband who possibly depended on his income, could be deprived of their due share as prescribed in the Qur’anic inheritance laws for such a situation (Ch. 38). On the other hand, if there are children and the mother chooses to groom them without remarrying, she will obviously have the right to stay in her deceased husband’s home: (i) on the basis of the Qur’anic injunction of the verse 2:233 (Ch. 34.5), and (ii) in exercise of the Qur’anic inheritance laws (Ch. 38), which gives a woman and a child collectively a higher share than that of the deceased man’s other next of kin. )

It is also notable that by addressing the verse to menfolk the Qur’an is not empowering the men to decide on behalf of the women but ensuring that its directives are put into effect by those who give decision on community matters: men in the context of the revelation and until very recent times, and in many societies, to this day.     

The Qur’anic timeframe of one year is obviously applicable for women who have no issue from the marriage, and would like to get remarried or live as an independent person. A time framing was an historical necessity to avoid the next of kin of a deceased man to retain his widow in their household indefinitely, against her will (4:19 above), and can be relevant in appropriate cases even today.   

Note

1.       Note 7/Ch. 34 for the interpretation of the expression fahishatim mubaiyinah.

2.       Abul Kalam Azad, Muhammad Shafi, Marmaduke Pikthall.

[2 References]

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36.    Against Unlawful Intimacy

36.1.       Sexual Norms of Pre-Islamic Arabia   

As noted earlier, it was normative for women in pre-Islamic Arabia to cohabit with strangers when their husbands were away on trading missions (Note 7/Ch. 1.1). Even otherwise, sexual norms were relaxed, and a casual encounter between the strangers of opposite sexes could readily culminate into intimate relationship, often openly promoted by women, leading to their motherhood. This created controversy in establishing paternal lines, which was decided by comparing the looks and features of a child with its likely fathers, assembled for the purupose.1 The practice, established as a social norm, absolved men-folk of all social and financial responsibilities towards the women they espoused or cohabited with and their offspring, forced women into commercial adultery, and left children born of such unions at the mercy of the society. This was in stark contradiction to the Qur’anic family laws that were designed to i) divest men of their sexual, financial and social licenses, ii) abolish adultery, iii) empower women and iv) give financial protection to women and children, as reviewed in the preceding chapters. The Qur’an therefore had to stop this practice, for which it uses a specific term, zina (25:68/Ch. 19.1; 17:32, 60:12).

As a first step, the Qur’an asks the Prophet to take an oath of fealty from believing women who came to him, that they will refrain from adultery, (60:12).

“Do not go near adultery (Zina), for this is indeed an abominable deed (Fahishah) and an evil way” (17:32).

“O Prophet! When believing women come to you to swear allegiance to you, (let them declare that :) they will not associate anything with God, nor will they steal, nor commit adultery (la Yaznina), nor kill their children, nor invent any slander deliberately*, nor disobey you in anything fair. Then you accept their allegiance, and seek forgiveness for them from God. Indeed God is Most Forgiving and Merciful” (60:12). *[Lit., ‘between their hands and their feet’]

Traditionally, the word Zina connotes extramarital sexual relation of a woman, whether married or unmarried. However, the explicit reference of a husband as the prime witness in the absence of other witnesses in a Zina charge (24:6/36.6 below) seemingly identifies this word with adultery in the present day sense. The Qur’an however uses the generic term Fahishah for all forms of abominable deeds including fornication and adultery (Note 4/Ch. 19). We have therefore shown the Arabic transliteration in our rendition to best ensure the integrity of the interpretation.

36.2.       Qur’anic Punishment For Adultery

The Qur’an describes those who commit adultery as perverts in faith (Mushrik, Mushrikah) (24:3). As an interim measure, it retains the prevalent capital punishment for women who invited men into adultery but changes the form from stoning to death to confinement at homes until death overtakes, and imposes the stringent requirement of testimony by four direct witnesses (4:15). In the succeeding verse (4:16), the Qur’an extends the scope of punishment to both the partners of an adulterous act, but does not spell out the mode of punishment. In its conclusive legislative phase on adultery (Zina), the Qur’an prescribes flogging the man, and the woman found guilty of adultery, each with a hundred lashes, and calls for the witnessing of the punishment by a group of believers (24:2), obviously to ensure that the guilty do not go unpunished (24:2). The Qur'an allows for repenting and reforming after the prescribed punishment has been inflicted (4:16/17, 24:5).

“Should any of your women commit adultery (Fahishah), collect evidence against them from four of you. If they (so) testify, confine them to their houses until death claims them or God makes a way for them (4:15). If two of you do it, punish them both. If they (subsequently) repent and reform, then leave them alone for God is Most Relenting and Merciful (16). Repentance with God is for those who do evil in ignorance, and then soon repent. God will relent towards them, for God is All-Knowing and Wise” (4:17).

Scholars differ whether the opening words (Wal Ladhane) rendered in the underline (4:16) apply both to man and woman, or homosexual relations. Given that the verse 24:2 (below) on punishment for adultery (Zina) prescribes equal punishment each to the guilty man and the guilty woman, it is clear that the opening two of you in the verse (4:16) applies both to man and woman.

“Flog the adulteress (Zaniyah) and the adulterer (Zani) each with a hundred lashes, and don’t let compassion with them keep you from (complying with) the law of God, if you believe in God and the Last Day; and let a group of believers witness their punishment (24:2). An adulterer (Zani) couples with (Yankih) none but an adulteress (Zaniyah), who is (awe) perverted in faith (Mushrikah); and as to an adulteress (Zaniyah) – none couples with (Yankih) her but an adulterer (Zani), who is (awe) perverted in faith (Mushrik). That is forbidden to believers” (24:3)

Traditionally the Arabic words Yankih, awe and Mushrik, Mushrikah are rendered according to their normal usage:  Yankih for ‘to marry’; awe for ‘or’ and Mushrik, Mushrikah for one who associates others with God.

Accordingly, the traditional interpretation suggests that a believing person – a man or a woman, who has committed adultery, can only marry one of his/her type of the opposite sex, or one who associates others with God. But this is not consistent with the stipulations of the verses 4:16 (above) and 2:221/Ch. 32.1, taken together.

The verse 4:16 restores the spiritual purity of a believing adulterer or adulteress, who has repented and reformed after receiving the prescribed punishment. The verse 2:221 (Ch. 32.1) forbids such a person to marry one who associates others with God (Mushrik, Mushrikah) thus contradicting the traditional interpretation of 24:3. Moreover, the Qur’an associates the word Zina (adultery) with married women (60:12/36.1 above), and therefore, it cannot conceivably make any suggestion about the marriage of such women as the traditional interpretation of 24:3 suggests.  

Our rendering is free from any such contradictions, and is based on Qur’anic illustrations,2 and also advocated by Muhammad Asad:3

36.3.       Object of the Qur’anic Punishment for Adultery

The immediate object of the Qur’anic ordinance on adultery (24:2), was to root out the prevalent heterosexual practices (36.1 above). In the historical context, the ordinance prohibits any extramarital sex between a man and a woman, regardless of the marital status of either. To avoid any miscarriage of justice, the Qur’an imposes the stringent requirement of four witnesses (4:15/36.2 above) to establish the offence.

Viewed against the present day laced sexual morality and normative consensual licenses, the Qur’anic punishment for adultery appears harsh and outlandish. However, the trauma and agony a wayward spouse may cause in a stable and close-knit happy family may be immensely greater than the extent of the punishment prescribed for adultery - the nature of which is however obviously dictated by the prevalent practices (See 36.7 below).

36.4.       Qur’anic Punishment for Slandering Against Women

The Qur’an imposes a punishment of eighty lashes on those who accuse a woman of adultery, but fail to provide four witnesses (24:4).

“And those who accuse chaste women, but fail to bring four witnesses, flog them with eighty lashes, and never accept their testimony, ever, for it is they who are perverse (24:4), except those who repent after that (Ba’da Dhalika) and reform (themselves); for God is Most Forgiving and Merciful” (24:5).

The underlined stipulation Ba‘da Dhalika indicates that the guilty may be forgiven ‘after’ (Ba’da) the prescribed punishment of ‘flogging’ has been inflicted upon them. Accordingly, we have placed the qualifying word, ‘subsequently’, in bracket while rendering the complimentary verse, 4:16 in the foregoing (36.2).

36.5.       The case of the offspring of an unwedded mother

The Qur’an remains silent about any offspring of an unwedded mother. It levels no stigma upon such a child. The fact is, no matter the legitimacy of a relationship, all children are God’s creation, and based on the Qur’an’s broader message, subject to the same set of laws.

36.6.       Establishing Sexual Offence against One’s Wife, if there Is No Witness

The Qur’an prescribes an oath protocol to establish a charge of adultery against a woman in the absence of any witnesses, other than her husband. In such an event, the husband must take an oath four times invoking God that he was truthful, and a fifth time, invoking God’s curse upon himself if he was lying (24:6/7). However, the wife could avert the punishment by reciprocal oaths (24:8/9).  

“Those who accuse their own wives but have no witnesses except themselves, the evidence of one of them should be to testify four times keeping God as a witness that he is truthful (24:6), (swearing) a fifth (time) that God’s curse be on him if he is a liar (7). However, it will avert the punishment from her if she testifies four times keeping God as a witness that he (her husband) is a liar (8), (swearing) a fifth time that God’s curse be on her if he (her husband) is truthful” (24:9). [Literally the underlined expressions should read: ‘among the truthful ones’, ‘among the liars’.]

36.7.       Broader Qur’anic Message Relating To Adultery

Qur’anic injunctions against adultery (4:15, 24:2/36.2 above) must be comprehended in conjunction with the other elements of its laws on man and woman relationship (Ch.33) to evolve the Qur’an’s universal message on the subject, as attempted below.   

In the event, a man suspects his wife of adulterous behaviour, he is commanded to counsel her, temporarily shun her bed, and finally assert on her, failing which he can involve the community and proceed for a divorce (4:34/35, Ch. 33.6). If he, however, chooses to charge his wife of adultery, he must bring four eyewitnesses (4:15/36.2 above). This may however be impossible, as no woman would commit adultery openly and risk the Qur’anic punishment. Setting up false witnesses, on the other hand, would be constrained by the severity of punishment for false witnessing (24:4/5, 36.4 above). So the best a man could perhaps do is to divorce her, or to create a situation for her to divorce him.

In the event, a woman suspects her husband of adultery; she is urged to conciliate with him, failing which she can divorce him unilaterally (4:128, 4:130/Ch. 33.6).

As for the Qur’anic specific punishment, e.g. flogging, it drew on the prevalent code and aimed at bringing about a quantum social change (36.1 above). Therefore, to take the punishment in isolation or out of its historical context as harsh or draconian will be misleading. The Qur’an was not sent down to punish humanity but to deliver humanity – particularly the women and the oppressed classes, from the sufferings society inflicted upon them - “to lift from them their burdens and shackles that were upon them (before)” (7:157, Note 185/Ch. 3), and the achievement of its noble objectives inevitably entailed some hard measures, affecting albeit, a fractional minority of people.   

36.8.       Sexual Offences 

The Qur’anic verses reviewed in this chapter relate specifically to adultery (zina) in which consenting men and women engaged themselves as part of the prevalent social norms (36.1 above). The lax sexual mores of the times kept sex related crimes to low levels and accordingly the Qur’an does not specifically refer to sex offences which are committed by men or women by force, or by way of active seduction, or when their prey is in a state of delusion or unconsciousness, such as under drug or during sleep.  Muslim jurists have legislated capital punishment for rape while punishment for other forms of sex-offences is dictated by the severity and circumstances of the offence. However, it must be admitted that the capital punishment for rape is not derived from the Qur’an, and is based on the pre-Islamic custom of stoning to death for adultery, as recorded in the traditions.

36.9.       The Qur’an Condemns Homosexuality.

The Qur’an condemns homosexual behaviour (7:80/81), and refers to it as a transgression beyond bounds (7:81). In a number of its passages,4 it refers to the homosexual norms of the Prophet Lot’s people, who were destroyed for their sins.

“Lot said to his people, ‘Would you commit such an abomination (Fahishah) that none in the world has ever done before you (7:80)? You approach men in your lust, instead of women. Indeed, you are a transgressing people.” (7:81)

There is a growing debate in the West to treat homosexuality as a moral norm. They argue that that homosexuality is a natural disposition that comes with the fuller awakening of sexual impulses during the adolescence; and therefore it should be treated as a completely normal behaviour. The biological fact is, the awareness of sex sets in much early in life. If homosexuality is regarded as perfectly acceptable behaviour, it will, like any addiction, infest children even at primary school level, who will then boldly carry their addiction through to adulthood creating serious cultural and demographic issues and a breakdown of social order.

Notes

1.       Muhammad Husayn Haykal, The Life of Muhammad, English translation by Ismail Ragi, 8th edition, Karachi 1989, p. 319.

2.       The Qur’anic illustrations supporting our rendition of the verse 24:3 are as follows:

a.      The use of the verb form yankih in the verse 24:3 is immediately preceded by a reference to the punishment for adultery or coupling without marriage (zina, in 24:2 above). This lends the word yankih in24:3, a generic meaning of ‘coupling’ without marriage, as advocated by Muhammad Asad.

b.      The particle awe is interpreted in an amplifying or explanatory sense as in 70:30 (Ch. 19.1).

c.      The terms mushrik, mushrikah, which normally signify a person who ‘associates others with God’, is interpreted in a broader sense as one who is ‘perverted in faith’, as those who ‘associate others with God’ are indeed perverted in their faiths. 

3.       Muhammad Asad, The Message of the Qur’an, Gibraltar 1980, Ch.24, note 5.

4.       15:72-75, 26:165-73, 27:54-58, 29:31-35.

[4 References]

Muhammad Yunus, a Chemical Engineering graduate from Indian Institute of Technology, and a retired corporate executive has been engaged in an in-depth study of the Qur’an since early 90’s, focusing on its core message. He has co-authored the referred exegetic work, which received the approval of al-Azhar al-Sharif, Cairo in 2002, and following restructuring and refinement was endorsed and authenticated by Dr. KhaledAbou El Fadl of UCLA, and published by Amana Publications, Maryland, USA, 2009.

URL: http://www.newageislam.com/books-and-documents/muhammad-yunus---ashfaque-ullah-syed/against-unlawful-intimacy--essential-message-of-islam--chapter-34-to-36/d/104366





TOTAL COMMENTS:-   2


  • I agree with the divorce procedure described. There are only two pronouncements of Talaq that are material. The first one is to start the divorce process and the second one is at the end of the four month period when the man shows no change in his intention. The second pronouncement should preferably be in the presence  of witnesses especially from the woman's side and after the arbitration process has failed. The witnesses from the woman's side are required to ensure that all her interests are protected and that no injustice is done to her besides the fact that her people may perhaps be needed to take care of her. When the Quran says that divorce can only be twice, it refers  to these two pronouncements. There is no need  for a third pronouncement. After the second pronouncement as described, the man is still free to keep his wife  or he must let her go in kindness. Once she has left him in this manner, the divorce has taken place both in a legal and physical sense and the divorce has become public knowledge. Until the physical parting of ways, they can choose to reunite

    In verse (2:229) which says  "A divorce is only permissible twice: after that, the parties should either hold Together on equitable terms, or separate with kindness.....", it is these two vital pronouncements that are being referred.

    It does not refer to anything else. For example, if a man has pronounced divorce but cohabited with his wife during the iddat period, the divorce is off. He can start a fresh divorce process and a fresh period of iddat and abandon it once again. He may do this more than three times.  Such a man should be set right in some other manner but a divorce does not take place unless it ends with a "physical divorce" and final physical separation as a divorced couple and living under a different roof from that of her husband for the woman.

    The number of times the word is pronounced is immaterial. The material pronouncements are 1. Start the process 2. End of the iddat period free from cohabitation followed by an actual physical separation as a divorced couple. 

    People may follow what has been described above. It is only when they take the matter to a Mufti or Qazi that all bets are off and life gets complicated. A Muslim is free to follow his own understanding as long as it is based on due diligence,without negligence and in good faith. Good faith here means without having any reason to believe otherwise. 
     
    The Ulema have control over our lives only to the extent we allow them to control our lives. Do not therefore blame the Ulema. Acquire proper knowledge and disseminate it and help those who live under your influence to take the right decisions.

    By Naseer Ahmed - 8/26/2015 5:44:27 AM



  • (4:15) If any of your women are guilty of lewdness (وَاللَّاتِي يَأْتِينَ الْفَاحِشَةَ مِن نِّسَائِكُمْ), Take the evidence of four (Reliable) witnesses from amongst you against them; and if they testify, confine them to houses until death do claim them, or Allah ordain for them some (other) way.
    (16) If two men among you(وَاللَّذَانِ يَأْتِيَانِهَا مِنكُمْ) are guilty of lewdness, punish them both. If they repent and amend, Leave them alone; for Allah is Oft-returning, Most Merciful.

    4:15 uses وَاللَّاتِي يَأْتِينَ الْفَاحِشَةَ مِن نِّسَائِكُمْ and 4:16 uses وَاللَّذَانِ يَأْتِيَانِهَا مِنكُمْ

    Unmistakably, 4:15 is talking about only women and 4:16 about men and the immoral act is lesbianism in 4:15 and homosexuality in 4:16. It is not adultery that is the subject

    The different punishments for what apparently is the same crime according to me is on account of the different effect it has on society. Lesbianism removes two fertile women from the procreative pool. At a time when entire populations were wiped out on account of disease etc and the world population fluctuated, procreation was considered as one of the highest moral virtues.

    Homosexuality among males makes little difference to the procreative potential of the society and man's  worth is more on account of his muscle and brain power or as a productive member of the society in  a non-procreative sense.

    Also notice, the temporary nature of the ruling on punishment for lesbianism in 4:15. Now that the world population is 7 billion, and there is little threat of mankind becoming extinct, the punishment for lesbianism can be the same as for homosexuality among men which is limited to strong disapproval.
      
    We know from history and the Quran that entire populations can turn homosexual and mankind is capable of self destructing. There is therefore a need for  strong societal disapproval for it. As far as natural instincts are concerned, nothing is "unnatural". It is societal and religious taboos that keep men and women in heterosexual and non-incestuous relationships.


    By Naseer Ahmed - 8/26/2015 3:57:19 AM



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