mohamed kechad
عضو نشيط
- البلد/ المدينة :
- ز.الوادي
- المُسَــاهَمَـاتْ :
- 728
- نقاط التميز :
- 2187
- التَـــسْجِيلْ :
- 10/10/2010
تفسير .... يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا جَاءَكُمُ الْمُؤْمِنَاتُ مُهَاجِرَاتٍ فَامْتَحِنُوهُنَّ ۖ اللَّهُ أَعْلَمُ بِإِيمَانِهِنَّ ۖ فَإِنْ عَلِمْتُمُوهُنَّ مُؤْمِنَاتٍ فَلَا تَرْجِعُوهُنَّ إِلَى الْكُفَّارِ ۖ لَا هُنَّ حِلٌّ لَّهُمْ وَلَا هُمْ يَحِلُّونَ لَهُنَّ ۖ وَآتُوهُم مَّا أَنفَقُوا ۚ وَلَا جُنَاحَ عَلَيْكُمْ أَن تَنكِحُوهُنَّ إِذَا آتَيْتُمُوهُنَّ أُجُورَهُنَّ ۚ وَلَا تُمْسِكُوا بِعِصَمِ الْكَوَافِرِ وَاسْأَلُوا مَا أَنفَقْتُمْ وَلْيَسْأَلُوا مَا أَنفَقُوا ۚ ذَٰلِكُمْ حُكْمُ اللَّهِ ۖ يَحْكُمُ بَيْنَكُمْ ۚ وَاللَّهُ عَلِيمٌ حَكِيمٌ
(60:10) Believers, when believing women come to you as Emigrants (in the cause of faith), examine them. Allah fully knows (the truth) concerning their faith. And when you have ascertained them to be believing women, do not send them back to the unbelievers. *14 Those women are no longer lawful to the unbelievers, nor are those unbelievers lawful to those (believing) women. Give their unbelieving husbands whatever they have spent (as bridal-dues); and there is no offence for you to marry those women if you give them their bridal-dues. *15 Do not hold on to your marriages with unbelieving women: ask for the return of the bridal-due you gave to your unbelieving wives and the unbelievers may ask for the return of the bridal-due they had given to their believing wives. *16 Such is Allah’s command. He judges between you. Allah is All-Knowing, Most Wise.
*14) The background of this injunction is that after the peace treaty of Hudaibiyah, in the beginning, the Muslim men started fleeing Makkah and arriving at Madinah and they were sent back according to the terms of the treaty. Then the Muslim women started arriving and, first of all, Umm Kulthum Uqbah bin Abi Mu'ait emigrated to Madinah, The disbelievers invoked the treaty and demanded return, ands two brothers of Umm Kulthum, Walid bin `Uqbah and 'Amarah bin `Uqbah, came to Madinah to take her back. At this the question arose whether the treaty of Hudaibiyah applied to the women as well. Allah has answered this very question here, saying: "If they are Minims, and it is ascertained that they have emigrated only for the sake of the Faith? and for no other motive, they arc not to be returned "
Here, a complication has arisen on account of the narration of the Hadith from the viewpoint of the meaning and content, and it must be resolved. The traditions that are found in the Ahadith about the conditions of the treaty of Hudaibiyah are mostly traditions narrated from the viewpoint of the meaning and purport, About the condition under discussion the words in the different traditions are different. In same the words are to the effect: "Whoever reaches us from you, we will not return hira, but whoever reaches you from us, you shall return. " In some others the words arc to the effect: "Whoever of his Companions comes to the Messenger of AIIah without the permission of his guardian, he will send him back." And in still another the words are: "Whoever,from the Quraish goes to Muhammad without the permission of his guardian, he will return him to Quraish. " The style of these traditions by itself shows that this condition of the treaty has not been reported in the actual words of the treaty, but the reporters have reported its purport in their own words. But since most of the traditions arc of the same nature, the commentators and traditionists generally have understood that the treaty was general, which applied to both men and women, and the women too were to be returned according to it. Later, when this injunction of the Qur'an that the believing women were not to be returned, came to their knowledge, they interpreted it to mean that AIIah in this verse had decided to break the treaty in so far as it related to the believing women But this was not an ordinary thing which should be accepted so easily. If the treaty was general, without any exception in respect of men and women, it could not be lawful for one party to amend it unilaterally ar change a part of it by itself. And even if such a thing happened, it is strange that the Quraish did not protest against it, whereas they remained on the lookout for an opportunity to raise objections against everything that the Holy Prophet (upon whom be Allah's peace) and the Muslims did. Had they found that the Holy Prophet had committed a breach of the treaty conditions, they would have raised a loud clamour. But we do not find any trace of it in any tradition that they took an exception to this ruling of the Qur'an. Had this question been carefully considered the problem could have been resolved by reference to the actual words of the treaty. But many people paid no attention they it; if some scholars (e.g Qadi Abu Bakr Ibn al-'Arabi) did pay any attention, they did not hesitate to say that the reason why the Quraish did not raise any objection was that AIIah had miraculously scaled their mouths in this matter. It is strange how these scholars felt satisfied at this explanation.
The fact of the matter is that this condition of the peace treaty had been proposed by the disbelieving Quraish, and not by the Muslims, and the words that Suhail bin 'Amr, their representative, had-got included in the treaty were: "And that whichever man (rajul) cornea to you from us, even if he be on your religion, you will return him to us." These words of the treaty have been reproduced in Bukhari (Kitab ash-Shurut: Bab ash-Shurut fil-Jihad wal-Masalahah) through authentic channels. It may be that Suhail used the word rajul in the meaning of a person, but this might be the meaning he had in his mind. The word written in the treaty was rajul, which is used for a full-grown man in Arabic. That is why when the brothers of Umm Kulthum bint 'Uqbah came to the Holy Prophet (upon whom be Allah's peace) and demanded her return, (according to Imam Zuhri's tradition) the Holy Prophet (upon whom be Allah's peace) refused return her, saying: "The condition was about the men, not the women. " (Ibn al- Arabi, Ahkam al-Qur an; Loam Razi, Tafsir Kabir) Until then the people of Quraish themselves were under the delusion that the treaty applied to all kinds of emigrants, men or women; But when the Holy Prophet drew their attention to these words of the treaty, they were struck dumb and had to accept this decision.
According to this condition of the treaty the Muslims had the right to decline return of any woman who emigrated from Makkah to Madinah, for any reason whatever. But Islam was interested only in safeguarding the believing omen and not to make the holy city of Madinah a place of refuge for every kind of female fugitive. Therefore, Allah enjoined: "Ascertain by examination the faith of the women who emigrated to you and profess to have believed; and when it is fully ascertained that they have emigrated with genuine faith, and no other motive, do not return them." Thus, the procedure adopted for carrying out this Command was was that the women who emigrated were questioned whether they believed in the oneness of Allah and the Prophethood of Muhammad (upon whom be Allah's peace) and had emigrated only for the sake of Allah and His Messenger, and not out of any worldly consideration, e.g. hatred of the husband, or love of somebody in Madinah, or some other worldly motive. Only those women who gave satisfactory answers to these questions were detained, others were sent back. (Ibn Jarir on the authority of Iba `Abbas, Qatadah, Mujahid, `Ikrimah, Ibn Zaid).
In this verse a basic principle of the Law of Evidence also bas been stated and its further clarification has been made by the procedure that the Holy Prophet (upon whom be Allah's peace) had prescribed for implementing it, The verse enjoins three things: (1) Examine the faith of the emigrating women who present themselves as believers; (2) Allah alone knows the truth about their faith; the Muslims have no means to find out whether they have really believed or not; and (3) when it has been ascertained that they are believers, they are not to be returned. Then, in accordance with this injunction, the method that the Holy Prophet prescribed for examining and ascertaining the faith of the women was that the statement given by them on oath should be relied on and it should be made sure after necessary examination that they had no other motive of emigration than the Faith. First, it gives the principle that for taking decision on different matters it is not necessary for the court to have direct knowledge of the truth; for the court only that knowledge is sufficient which is obtained through evidence. Second, the statement given by a person on oath will be regarded as reliable until it is proved to be false by a clear evidence. Third, whatever declaration a person himself may make about his creed and faith, will be accepted and no search will be made into finding out,whether what he states actually constitutes his faith or not, unless there is a clear indication to the contrary. And fourth, in the personal affairs of a person, which no one else can know, his own statement will be trusted. e.g. in the matters of divorce and the waiting period (iddat) the woman's own statement about her menstrual course and state of purity will be regarded as reliable, whether it is true or false. According to these very rules, in the science of the Hadith also, those traditions will be accepted, the apparent state of whose reporters testifies to their being righteous, unless, of course, there are other circumstances which forbid the acceptance of a particular tradition.
*15) This means that a Muslim who wants to marry any of these women should pay a fresh dower and marry her. The dowers to he repaid to their unbelieving husbands will not be considered their dowers.
*16) Four very important injunctions have been, laid down in these verses, which relate both to the family law of Islam and to the international law.
First, that the woman who becomes a Muslim is no longer lawful for her unbelieving husband nor her unbelieving husband is lawful for her.
Second, that the marriage of the married woman who becomes a Muslim and emigrates from the abode of disbelief (dar al-kufr to the abode of Islam (dar al-lslam) is automatically annulled, and any Muslim who likes can marry her after paying her dower.
Third, that it is not lawful for a man who becomes a Muslim to retain his wife in wedlock if she likes to remain an infidel.
Fourth that if there exist relations of peace between the abode of disbelief and the abode of Islam, the Islamic government should try to settle the question of the return of dowers with the non-Muslim government, thus: The dowers of the married women of the disbelievers, who become Muslims and emigrate to the abode of Islam, should be returned by the Muslims, and the dowers of the unbelieving married women of the Muslims. who are left behind is the abode of disbelief, should be got back from the disbelievers.
The historical background of these injunctions is as follows: In the beginning of Islam, there were many such men, who accepted Islam but their wives did not become Muslim, and there were many such women who became Muslim but their husbands did not accept Islam. Abul-'As, the husband of Zainab, a daughter of the Holy Prophet (upon whom be Allah's peace), was a non-Muslim and he remained non-Muslim for several years. In the early period no command had been given to the effect that the pagan husband was unlawful for the Muslim wife and the pagan wife was unlawful for the Muslim husband. Therefore, the marital relations continued to exist between them, Even after the migration for several years, it so happened that many women became Muslim and emigrated Madinah while their pagan husbands remained in the abode of disbelief. Likewise, many Muslim men emigrated and their pagan wives were left in the abode of disbelief. But in spite of this their marriage continued. This was creating complications for the women in particular, for the men could marry other women, but this was not possible for the women. Until their marriage with their previous husbands was dissolved, they could not remarry. After the peace treaty of Hudaibiyah when these verses came down, they annulled the previous marriage between the Muslims and the pagans, and laid down an absolute and clear law for guidance in future. The jurists of Islam have codified this law under four major heads:
First, the case when both the man and the wife are in the abode of Islam and one of them becomes a Muslim and the of her remains an infidel.
Second, the case when both the man and the wife are in the abode of disbelief, and one of them becomes a Muslim and the other remains an infidel.
Third, the cast when one of the spouses becomes a Muslim and emigrates to the abode of Islam and the other remains an infidel in the abode of disbelief.
Fourth, the case when either of the Muslim spouses becomes an apostate.
Below we give the viewpoints of the jurists with regard to a 11 the four cases separately:
(1) In the first case, if the husband has accepted Islam and' his wife is a Christian or a Jewess, and she remains faithful to her religion, their marriage will endure, for it is permissible for a Muslim to have a wife who is a follower of the earlier scriptures. This is agreed upon by all jurists.
And if the wife of the man, who has accepted Islam, is not a follower of the 'earlier Books, and she adheres to her Faith, the Hanafis say that Islam will be presented before her; if she accepts it, the marriage will endure; if she refuses to accept it, separation will be effected between them. In this case, if consummation between them had taken place, the woman will be entitled to the dower; if there was no consummation, she will not be entitled to any dower, for separation has been caused because of her refusal. (AI-Mabsut; Hedayah; Fath al-Qadir). Imam Shafe'i and Imam Ahmad say that if the spouses did not have had consummation, the woman would be outside wedlock as soon as the man accepted Islam, and if . consummation had taken place; the woman will remain in wedlock till three menstruations. During this period if she accepts Islam of her own tree wills the marriage will continue, otherwise it will become void automatically as soon as she is free from her third menstrual course. Imam Shafei also adds that it is not right to present Islam before the woman an the basis of the pledge of non-interference in religion that the dhimmis have been given by the Muslims. But this, in fact, is a weak argument for interference in the dhimmi woman's rcligion would be if she wascompelled to accept Islam. It is no interference to tell her that if she accepted Islam, she would continue to be her husband's wife, otherwise she would be separated from him. In Hadrat Ali's time there has been a precedent of this nature An Iraqi landowner who was a Majusi by rcligion accepted Islam and his wife remained an unbeliever, Hadrat 'AIi presented Islam before her, and when she refused to accept it, he effected separation between them. (Al-Mabsut). Imam Malik says that if consummation has not taken place, the unbelieving wife would forthwith cease to be the wife as soon as the man embraced Islam, and if consummation has taken place, Islam would be presented before the woman, and in case she refuses to accept it. separation will result. (Ibn Qudamah, Al-Mughni ).
And if Islam has been accepted by the woman and the Fan remains an infidel. whether he is a follower of an earlier scripture or a non-follower, the Hanafis say that Islam will be presented before the husband whether consummation between them has taken place or not. If he accepts it, the woman will continue to be his wife; if he rejects it the qadi will effect separation between them. So long as the man does not refuse to acecpt Islam, the woman will remain his wife, but he will not have the right to have sexual relations with her. In cast the husband refuses, separation will become effective just like an irrevocable divorce. If consummation has not taken place before this, the woman will be entitled to half the dower, and if it has taken place, the woman will be entitled to full dower as well as maintenance during the waiting period ( iddat). (AI-Mabsut; Hedayah; Fath at-Qadir). According to Imam Shafe`i, marriage will dissolve as soon as the woman accepted lslam in case consummation has not taken place, and in case it has taken place, the woman will continue to be the man's wife till the end of the waiting period. If in the mean-time he accepts Islam, marriage will remain valid, otherwise separation will take place as soon as the waiting period comes to an end. But in the case of the man also Imam Shafe'i has expressed the same opinion as he has expressed about the woman as cited above. That is, it is not right to present Islam before him. But this is a weak opinion. In the time of Hadrat 'Umar, on several occasions, the woman accepted Islam and the man was invited to Islam; when he refused to accept it, separation was effected between the spouses There is, for examples the case of the wife of a Christian of the Bani Taghlib, which was brought before him. Hadrat `Umar said to the man, "Accept Islam, otherwise I will effect separation between you two." He declined, and the Caliph enforced the decree. The case of a newly converted lady of Bahz al-Malik was sent to him. In her case too he ordered that Islam be presented before her husband; if he accepts it well and good, otherwise separation be effected between them. These incidents had happened in front of the Companions and no dispute or difference of opinion has been reported. (AI-Jassas, Ahkam al-Qur an; Al Mabsut; Fath al-Qadir). Imam Malik's opinion in this connection is that if the woman becomes a Muslim before the consummation of marriage Islam should be presented before the husband; if he accepts it, well and 'good; otherwise separation should be effected forthwith. An!? if consummation has taken place, and the woman has accepted Islam afterwards, she will have to wait till the end of the waiting period. If the husband accepts Islam in the meantime, marriage will continue otherwise separation will take place as soon as the waiting period expires. A saying of Imam Ahmad is in support of Imam Shafe'i. His other saying is to the effect that the event of the difference of religion between the spouses will in any case lead to immediate separation, whether consummation between them has taken place or not. (AI-Mughni).
(2) If in dar al-kufr (abode of disbelief ) the woman becomes a Muslim and the man remains an infidel, or the man becomes a Muslim and the wife (who neither is Christian nor Jew but is follower of a non-revealed religion) remains an infidel the Hanafi viewpoint is that separation will not take place, whether consuummation between them has taken place or not, until the woman completes three menstrual courses, or until she passes three months in case she is non-menstruating. If in the meantime the other spouse is also converted, marriage will remain valid, otherwise separation will take place on the expiry of the term. Imam Shafe'i, in this case also, distinguishes between the occurrence of consummation and its nonoccurrence He maintains that if there was no consummation, separation would occur immediately on the event of the difference of religion between the spouses. And if the difference of religion has occurred after the consummation, marriage will continue valid until the end of the waiting period. If in the meantime the other spouse does.not accept Islam, marriage will dissolve as soon as the waiting period comes to an end. (AIMabsut, Fath al-Qadir, AI-Jassas Ahkam al-Qur an).
In case where along with the difference of religion between the spouses the separation of abode also takes place, i.e. one of them remains an infidel in daral-kufr(the non-Muslim state) and the other emigrates to dar aI-lslam (the Islamic state), the Hanafi viewpoint is that marriage between them will automatically dissolve. If the emigrant is the woman, she has the right to remarry immediately; she does not have to observe any waiting period. However, her husband will have to abstain from sexual intercourse until after she has discharged the menses once; and if she is pregnant, even then marriage can be contracted, but the husband must abstain from cohabitation until after the delivery. Imam Muhammad and Imam Abu Yusuf have differed from Imam Abu Hanifah in this. They say that the woman has to observe the waiting period; and if she is pregnant, she cannot contract marriage before the delivery. (Al-Mabsut; Hedayah; AI-Jassas, Ahkam al-Qur'an). Imam Shafe.'i, Imam Ahmad and Imam Malik maintain that the separatIon of abode has nothing to do with this, for the real thing is only the deference of religion. If this difference takes place between the spouses, the injunctions to govern this are the same as those which govern it in case such a difference takes place between the spouses in the Islamic state (AI-Mughni). Imam Shafe`i along with his above-cited opinion has also expressed the view that if the emigrant Muslim woman has emigrated after a quarrel with her infide I husband, with the intention of dissolving his marital right, an immediate separation will take place not on the basis of the separation of abode (ikhtilaf dar) but on the basis of her this intention. (Al-Mabsut' Hedayah).
But a careful consideration of the Qur'anic verse under discussion clearly shows that in this matter the most sound opinion is the one that Imam Abu Hanifah has expressed. AIlah has sent down this verse concerning the believing women who emigrated and about them He has said that they are no longer lawful for the pagan husbands whom they have left behind in dar al-k-kufr, and has allowed the Muslims of the Islamic state to marry them after they have paid them the dowers. On the other hand, the emigrant Muslims have been addressed and enjoined not to keep those of their pagan wives in wedlock, who are left is dar al-kufr, and to ask of the disbelievers the dowers that they had given to those women. Obviously, these injunctions do not pertain only to the difference of religion, but it is the difference of abode that has given these injunctions this particular form. If on account of migration the marriages of the Muslim women with. their pagan husbands had not become dissolved, how could the Muslims be permitted to marry them, and .that too in a way that the permission does not contain any reference to the observance of the waiting period by them? Likewise, if even after the revelation of the Command, "and you also should not hold back unbelieving women in marriage the pagan wives of the Muslim emigrants had continued to be their wives, they also would have been commanded to divorce them. But there is no reference here to this either. No doubt, it is correct that after the revelation of this verse, Hadrat `Umar and Hadrat Talhah and some other Emigrants had divorced their wives, but this is no proof that such a thing was at aII necessary, and their severing of the marital relationship with those wives depended on their pronouncing divorce on them, and if they had not pronounced the divorce, the wives would have continued to be their legal wives.
In response to this, three events of the Holy Prophet's time arc quoted as precedents, which arc regarded as a proof that even after the revelation these verses the Holy prophet (upon whom be Allah's peace), in spite of the separation of abode, allowed the marriage relationship to continue between the believing and the unbelieving spouses. The first event .is - this, A little before the conquest of Makkah, Abu Sufyan visited the Islamic army at Marr az-Zahran (present Wadi Fatimah) and accepted Islam, and his wife, Hind, remained a pagan in Makkah. Then Hind accepted Islam after the conquest of Makkah, and the Holy Prophet (upon whom be peace) ruled that their previous marriage would continue to be valid. The second event is that after the conquest of Makkah, `Ikrimah bin Abu Jahl and Hakim bin Hizam fled Makkah and in their absence the wives of both became Muslims Then they sought the Holy Prophet's protection for their husbands and went and brought them back. Both the men come before the Holy Prophet and accepted Islam and in their case too he held their previous marriages as valid. The third event relates to the Holy Prophet's own daughter, Hadrat Zainab, who emigrated to Madinah and her husband, Abul-'As, was left an infidel in Makkah. About him Musnad Ahmad, Abu Da'ud, Tirmidhi and Ibn Majah contain a tradition on the authority of Ibn `Abbas, saying that he came to Madinah in A.H. 8 and became a Muslim, and the Holy Prophet allowed his daughter to continue in marriage with him, without renewal of marriage. But the first two of these events, in fact, do not come under the definition of the difference of abode. For the difference of abode does not mean a person's .temporarily leaving one place for another, or his fleeting to another place, but the difference takes place only in case a person emigrates from one place and settles down in another place and the difference of nationality takes place between him and his wife. As for the event relating to Hadrat Zainab (may Allah bless her), there arc two traditions, one related on the authority of Ibn `Abbas, as referred to above, and the other related by Imam Ahmad, Tirmidhi and Ibn Majah on the authority of Hadrat 'Abdullah bin 'Amr bin `As. In this second tradition it has been stated that the Holy Prophet (upon whom be Allah's peace) allowed his daughter to continue as the wife of Abul-'As after renewal of the marriage, and with a fresh dower. Thus, in the first place, this precedent, due to the difference in reporting, no longer remains a definite argument with those who deny the legal effect of the separation of abode. Secondly, if they insist on the authenticity of Ibn `Abbas's tradition, it contradicts their own viewpoint. For, according to their viewpoint, the marriage of the spouses between whom difference of religion takes place and who have consummated their marriage remains valid only until three menstruations. In the meantime if the other party also accepts Islam the marriage continues to be valid, otherwise it dissolves automatically as soon as the third menstrual course starts. But in the case of Hadrat Zainab from which they take their argument, the difference of religion between the spouses had taken place several years earlier. Abul-'As had affirmed the faith six years after Hadrat Zainab's emigration, and at least two years before his conversion to Islam the injunction had been revealed' in the Qur'an, according to which the Muslim woman had been forbidden for the pagans. (4) The fourth case is of apostasy. Its one form is that both the husband and the wife should become apostates together, and the other that one of them becomes an apostate and the other remains a Muslim.
If both the husband and the wife become apostates together, the Shafe'is and the Hanbalis say that their marriage contracted in Islam will dissolve immediately if this happened before consummation, and after the lapse of the waiting period if it happened after consummation. On the contrary, the Hanafis hold the view that. although according to common sense their marriage should dissolve, yet in the time of Hadrat Abu Bakr, when thousands of people became apostates, and then again became Muslims, the Companions did not direct anyone to renew the marriage; therefore, we accept this unanimous decision of the ('companions and admit, contrary to common sense, that in case both the husband and the wife become apostates together, their ' marriages do not dissolve."(AIMabsut; Hedayah; Fath al-Qadir Al-Fiqh 'alal-Madhahib al- Arba'h).
If the husband becomes an apostate and the wife continues to be Muslim, according to the Hanafis and the Malikis, the marriage will dissolve immediately, whether this happens before consummation or after it. But the Shafe'is and the Hanbalis in this connection make a distinction between the two states. If it happens before consummation, the marriage will dissolved immediately, and if it happens after consumation it will endure till the end of the waiting period, In the meantime ii' the person returns to Islam, marriage will continue to hold good, otherwise, on teh expiry of the waiting period, it will be deemed to have dissolved since he became an apostate. That is, the woman will not have to observe another waiting period afresh. AlI the four jurists are agreed that if this happened before consummation, the woman would be entitled to half the dower, and if after consumation to full dower.
And if the woman became an apostate, the old ruling of the Hanafis was that in this case too. marriage would dissolve immediately. But later the scholars of Balkh and Samarkand gave the ruling that in case the woman becomes an apostate, separation does not take place immediately; and by this their object was to discourage the women from adopting this course in order to get rid of their husbands. The Malikis' verdict is somewhat similar. They say that if circumstances testify that the woman adopted this course only as a pretence to win separation from the husband, separation will not take place. The Shafe'is and the Hanbalis say that in case of the woman's turning an apostate too, the law is the same as in case of the husband's turning an apostate. That is, if she became an apostate before consummation, marriage would dissolve immediately and if after consummation, Marriage will endure till the end of the waiting period. If conversion takes place in the meantime marriage will continue to hold good, otherwise it will be deemed to have dissolved since the time of apostasy. There is consensus with regard to the dower. If the woman became an apostate, before consumation she would not be entitled to any dower, and if she adopted apostasy after consummation, she would be entitled to full dower. (AI-Mabsut.' Hedayah; Fath al-Qadlr, AI Mughni; Al-Fiqh alal-Madhahib al-Arb ah).
(60:10) Believers, when believing women come to you as Emigrants (in the cause of faith), examine them. Allah fully knows (the truth) concerning their faith. And when you have ascertained them to be believing women, do not send them back to the unbelievers. *14 Those women are no longer lawful to the unbelievers, nor are those unbelievers lawful to those (believing) women. Give their unbelieving husbands whatever they have spent (as bridal-dues); and there is no offence for you to marry those women if you give them their bridal-dues. *15 Do not hold on to your marriages with unbelieving women: ask for the return of the bridal-due you gave to your unbelieving wives and the unbelievers may ask for the return of the bridal-due they had given to their believing wives. *16 Such is Allah’s command. He judges between you. Allah is All-Knowing, Most Wise.
*14) The background of this injunction is that after the peace treaty of Hudaibiyah, in the beginning, the Muslim men started fleeing Makkah and arriving at Madinah and they were sent back according to the terms of the treaty. Then the Muslim women started arriving and, first of all, Umm Kulthum Uqbah bin Abi Mu'ait emigrated to Madinah, The disbelievers invoked the treaty and demanded return, ands two brothers of Umm Kulthum, Walid bin `Uqbah and 'Amarah bin `Uqbah, came to Madinah to take her back. At this the question arose whether the treaty of Hudaibiyah applied to the women as well. Allah has answered this very question here, saying: "If they are Minims, and it is ascertained that they have emigrated only for the sake of the Faith? and for no other motive, they arc not to be returned "
Here, a complication has arisen on account of the narration of the Hadith from the viewpoint of the meaning and content, and it must be resolved. The traditions that are found in the Ahadith about the conditions of the treaty of Hudaibiyah are mostly traditions narrated from the viewpoint of the meaning and purport, About the condition under discussion the words in the different traditions are different. In same the words are to the effect: "Whoever reaches us from you, we will not return hira, but whoever reaches you from us, you shall return. " In some others the words arc to the effect: "Whoever of his Companions comes to the Messenger of AIIah without the permission of his guardian, he will send him back." And in still another the words are: "Whoever,from the Quraish goes to Muhammad without the permission of his guardian, he will return him to Quraish. " The style of these traditions by itself shows that this condition of the treaty has not been reported in the actual words of the treaty, but the reporters have reported its purport in their own words. But since most of the traditions arc of the same nature, the commentators and traditionists generally have understood that the treaty was general, which applied to both men and women, and the women too were to be returned according to it. Later, when this injunction of the Qur'an that the believing women were not to be returned, came to their knowledge, they interpreted it to mean that AIIah in this verse had decided to break the treaty in so far as it related to the believing women But this was not an ordinary thing which should be accepted so easily. If the treaty was general, without any exception in respect of men and women, it could not be lawful for one party to amend it unilaterally ar change a part of it by itself. And even if such a thing happened, it is strange that the Quraish did not protest against it, whereas they remained on the lookout for an opportunity to raise objections against everything that the Holy Prophet (upon whom be Allah's peace) and the Muslims did. Had they found that the Holy Prophet had committed a breach of the treaty conditions, they would have raised a loud clamour. But we do not find any trace of it in any tradition that they took an exception to this ruling of the Qur'an. Had this question been carefully considered the problem could have been resolved by reference to the actual words of the treaty. But many people paid no attention they it; if some scholars (e.g Qadi Abu Bakr Ibn al-'Arabi) did pay any attention, they did not hesitate to say that the reason why the Quraish did not raise any objection was that AIIah had miraculously scaled their mouths in this matter. It is strange how these scholars felt satisfied at this explanation.
The fact of the matter is that this condition of the peace treaty had been proposed by the disbelieving Quraish, and not by the Muslims, and the words that Suhail bin 'Amr, their representative, had-got included in the treaty were: "And that whichever man (rajul) cornea to you from us, even if he be on your religion, you will return him to us." These words of the treaty have been reproduced in Bukhari (Kitab ash-Shurut: Bab ash-Shurut fil-Jihad wal-Masalahah) through authentic channels. It may be that Suhail used the word rajul in the meaning of a person, but this might be the meaning he had in his mind. The word written in the treaty was rajul, which is used for a full-grown man in Arabic. That is why when the brothers of Umm Kulthum bint 'Uqbah came to the Holy Prophet (upon whom be Allah's peace) and demanded her return, (according to Imam Zuhri's tradition) the Holy Prophet (upon whom be Allah's peace) refused return her, saying: "The condition was about the men, not the women. " (Ibn al- Arabi, Ahkam al-Qur an; Loam Razi, Tafsir Kabir) Until then the people of Quraish themselves were under the delusion that the treaty applied to all kinds of emigrants, men or women; But when the Holy Prophet drew their attention to these words of the treaty, they were struck dumb and had to accept this decision.
According to this condition of the treaty the Muslims had the right to decline return of any woman who emigrated from Makkah to Madinah, for any reason whatever. But Islam was interested only in safeguarding the believing omen and not to make the holy city of Madinah a place of refuge for every kind of female fugitive. Therefore, Allah enjoined: "Ascertain by examination the faith of the women who emigrated to you and profess to have believed; and when it is fully ascertained that they have emigrated with genuine faith, and no other motive, do not return them." Thus, the procedure adopted for carrying out this Command was was that the women who emigrated were questioned whether they believed in the oneness of Allah and the Prophethood of Muhammad (upon whom be Allah's peace) and had emigrated only for the sake of Allah and His Messenger, and not out of any worldly consideration, e.g. hatred of the husband, or love of somebody in Madinah, or some other worldly motive. Only those women who gave satisfactory answers to these questions were detained, others were sent back. (Ibn Jarir on the authority of Iba `Abbas, Qatadah, Mujahid, `Ikrimah, Ibn Zaid).
In this verse a basic principle of the Law of Evidence also bas been stated and its further clarification has been made by the procedure that the Holy Prophet (upon whom be Allah's peace) had prescribed for implementing it, The verse enjoins three things: (1) Examine the faith of the emigrating women who present themselves as believers; (2) Allah alone knows the truth about their faith; the Muslims have no means to find out whether they have really believed or not; and (3) when it has been ascertained that they are believers, they are not to be returned. Then, in accordance with this injunction, the method that the Holy Prophet prescribed for examining and ascertaining the faith of the women was that the statement given by them on oath should be relied on and it should be made sure after necessary examination that they had no other motive of emigration than the Faith. First, it gives the principle that for taking decision on different matters it is not necessary for the court to have direct knowledge of the truth; for the court only that knowledge is sufficient which is obtained through evidence. Second, the statement given by a person on oath will be regarded as reliable until it is proved to be false by a clear evidence. Third, whatever declaration a person himself may make about his creed and faith, will be accepted and no search will be made into finding out,whether what he states actually constitutes his faith or not, unless there is a clear indication to the contrary. And fourth, in the personal affairs of a person, which no one else can know, his own statement will be trusted. e.g. in the matters of divorce and the waiting period (iddat) the woman's own statement about her menstrual course and state of purity will be regarded as reliable, whether it is true or false. According to these very rules, in the science of the Hadith also, those traditions will be accepted, the apparent state of whose reporters testifies to their being righteous, unless, of course, there are other circumstances which forbid the acceptance of a particular tradition.
*15) This means that a Muslim who wants to marry any of these women should pay a fresh dower and marry her. The dowers to he repaid to their unbelieving husbands will not be considered their dowers.
*16) Four very important injunctions have been, laid down in these verses, which relate both to the family law of Islam and to the international law.
First, that the woman who becomes a Muslim is no longer lawful for her unbelieving husband nor her unbelieving husband is lawful for her.
Second, that the marriage of the married woman who becomes a Muslim and emigrates from the abode of disbelief (dar al-kufr to the abode of Islam (dar al-lslam) is automatically annulled, and any Muslim who likes can marry her after paying her dower.
Third, that it is not lawful for a man who becomes a Muslim to retain his wife in wedlock if she likes to remain an infidel.
Fourth that if there exist relations of peace between the abode of disbelief and the abode of Islam, the Islamic government should try to settle the question of the return of dowers with the non-Muslim government, thus: The dowers of the married women of the disbelievers, who become Muslims and emigrate to the abode of Islam, should be returned by the Muslims, and the dowers of the unbelieving married women of the Muslims. who are left behind is the abode of disbelief, should be got back from the disbelievers.
The historical background of these injunctions is as follows: In the beginning of Islam, there were many such men, who accepted Islam but their wives did not become Muslim, and there were many such women who became Muslim but their husbands did not accept Islam. Abul-'As, the husband of Zainab, a daughter of the Holy Prophet (upon whom be Allah's peace), was a non-Muslim and he remained non-Muslim for several years. In the early period no command had been given to the effect that the pagan husband was unlawful for the Muslim wife and the pagan wife was unlawful for the Muslim husband. Therefore, the marital relations continued to exist between them, Even after the migration for several years, it so happened that many women became Muslim and emigrated Madinah while their pagan husbands remained in the abode of disbelief. Likewise, many Muslim men emigrated and their pagan wives were left in the abode of disbelief. But in spite of this their marriage continued. This was creating complications for the women in particular, for the men could marry other women, but this was not possible for the women. Until their marriage with their previous husbands was dissolved, they could not remarry. After the peace treaty of Hudaibiyah when these verses came down, they annulled the previous marriage between the Muslims and the pagans, and laid down an absolute and clear law for guidance in future. The jurists of Islam have codified this law under four major heads:
First, the case when both the man and the wife are in the abode of Islam and one of them becomes a Muslim and the of her remains an infidel.
Second, the case when both the man and the wife are in the abode of disbelief, and one of them becomes a Muslim and the other remains an infidel.
Third, the cast when one of the spouses becomes a Muslim and emigrates to the abode of Islam and the other remains an infidel in the abode of disbelief.
Fourth, the case when either of the Muslim spouses becomes an apostate.
Below we give the viewpoints of the jurists with regard to a 11 the four cases separately:
(1) In the first case, if the husband has accepted Islam and' his wife is a Christian or a Jewess, and she remains faithful to her religion, their marriage will endure, for it is permissible for a Muslim to have a wife who is a follower of the earlier scriptures. This is agreed upon by all jurists.
And if the wife of the man, who has accepted Islam, is not a follower of the 'earlier Books, and she adheres to her Faith, the Hanafis say that Islam will be presented before her; if she accepts it, the marriage will endure; if she refuses to accept it, separation will be effected between them. In this case, if consummation between them had taken place, the woman will be entitled to the dower; if there was no consummation, she will not be entitled to any dower, for separation has been caused because of her refusal. (AI-Mabsut; Hedayah; Fath al-Qadir). Imam Shafe'i and Imam Ahmad say that if the spouses did not have had consummation, the woman would be outside wedlock as soon as the man accepted Islam, and if . consummation had taken place; the woman will remain in wedlock till three menstruations. During this period if she accepts Islam of her own tree wills the marriage will continue, otherwise it will become void automatically as soon as she is free from her third menstrual course. Imam Shafei also adds that it is not right to present Islam before the woman an the basis of the pledge of non-interference in religion that the dhimmis have been given by the Muslims. But this, in fact, is a weak argument for interference in the dhimmi woman's rcligion would be if she wascompelled to accept Islam. It is no interference to tell her that if she accepted Islam, she would continue to be her husband's wife, otherwise she would be separated from him. In Hadrat Ali's time there has been a precedent of this nature An Iraqi landowner who was a Majusi by rcligion accepted Islam and his wife remained an unbeliever, Hadrat 'AIi presented Islam before her, and when she refused to accept it, he effected separation between them. (Al-Mabsut). Imam Malik says that if consummation has not taken place, the unbelieving wife would forthwith cease to be the wife as soon as the man embraced Islam, and if consummation has taken place, Islam would be presented before the woman, and in case she refuses to accept it. separation will result. (Ibn Qudamah, Al-Mughni ).
And if Islam has been accepted by the woman and the Fan remains an infidel. whether he is a follower of an earlier scripture or a non-follower, the Hanafis say that Islam will be presented before the husband whether consummation between them has taken place or not. If he accepts it, the woman will continue to be his wife; if he rejects it the qadi will effect separation between them. So long as the man does not refuse to acecpt Islam, the woman will remain his wife, but he will not have the right to have sexual relations with her. In cast the husband refuses, separation will become effective just like an irrevocable divorce. If consummation has not taken place before this, the woman will be entitled to half the dower, and if it has taken place, the woman will be entitled to full dower as well as maintenance during the waiting period ( iddat). (AI-Mabsut; Hedayah; Fath at-Qadir). According to Imam Shafe`i, marriage will dissolve as soon as the woman accepted lslam in case consummation has not taken place, and in case it has taken place, the woman will continue to be the man's wife till the end of the waiting period. If in the mean-time he accepts Islam, marriage will remain valid, otherwise separation will take place as soon as the waiting period comes to an end. But in the case of the man also Imam Shafe'i has expressed the same opinion as he has expressed about the woman as cited above. That is, it is not right to present Islam before him. But this is a weak opinion. In the time of Hadrat 'Umar, on several occasions, the woman accepted Islam and the man was invited to Islam; when he refused to accept it, separation was effected between the spouses There is, for examples the case of the wife of a Christian of the Bani Taghlib, which was brought before him. Hadrat `Umar said to the man, "Accept Islam, otherwise I will effect separation between you two." He declined, and the Caliph enforced the decree. The case of a newly converted lady of Bahz al-Malik was sent to him. In her case too he ordered that Islam be presented before her husband; if he accepts it well and good, otherwise separation be effected between them. These incidents had happened in front of the Companions and no dispute or difference of opinion has been reported. (AI-Jassas, Ahkam al-Qur an; Al Mabsut; Fath al-Qadir). Imam Malik's opinion in this connection is that if the woman becomes a Muslim before the consummation of marriage Islam should be presented before the husband; if he accepts it, well and 'good; otherwise separation should be effected forthwith. An!? if consummation has taken place, and the woman has accepted Islam afterwards, she will have to wait till the end of the waiting period. If the husband accepts Islam in the meantime, marriage will continue otherwise separation will take place as soon as the waiting period expires. A saying of Imam Ahmad is in support of Imam Shafe'i. His other saying is to the effect that the event of the difference of religion between the spouses will in any case lead to immediate separation, whether consummation between them has taken place or not. (AI-Mughni).
(2) If in dar al-kufr (abode of disbelief ) the woman becomes a Muslim and the man remains an infidel, or the man becomes a Muslim and the wife (who neither is Christian nor Jew but is follower of a non-revealed religion) remains an infidel the Hanafi viewpoint is that separation will not take place, whether consuummation between them has taken place or not, until the woman completes three menstrual courses, or until she passes three months in case she is non-menstruating. If in the meantime the other spouse is also converted, marriage will remain valid, otherwise separation will take place on the expiry of the term. Imam Shafe'i, in this case also, distinguishes between the occurrence of consummation and its nonoccurrence He maintains that if there was no consummation, separation would occur immediately on the event of the difference of religion between the spouses. And if the difference of religion has occurred after the consummation, marriage will continue valid until the end of the waiting period. If in the meantime the other spouse does.not accept Islam, marriage will dissolve as soon as the waiting period comes to an end. (AIMabsut, Fath al-Qadir, AI-Jassas Ahkam al-Qur an).
In case where along with the difference of religion between the spouses the separation of abode also takes place, i.e. one of them remains an infidel in daral-kufr(the non-Muslim state) and the other emigrates to dar aI-lslam (the Islamic state), the Hanafi viewpoint is that marriage between them will automatically dissolve. If the emigrant is the woman, she has the right to remarry immediately; she does not have to observe any waiting period. However, her husband will have to abstain from sexual intercourse until after she has discharged the menses once; and if she is pregnant, even then marriage can be contracted, but the husband must abstain from cohabitation until after the delivery. Imam Muhammad and Imam Abu Yusuf have differed from Imam Abu Hanifah in this. They say that the woman has to observe the waiting period; and if she is pregnant, she cannot contract marriage before the delivery. (Al-Mabsut; Hedayah; AI-Jassas, Ahkam al-Qur'an). Imam Shafe.'i, Imam Ahmad and Imam Malik maintain that the separatIon of abode has nothing to do with this, for the real thing is only the deference of religion. If this difference takes place between the spouses, the injunctions to govern this are the same as those which govern it in case such a difference takes place between the spouses in the Islamic state (AI-Mughni). Imam Shafe`i along with his above-cited opinion has also expressed the view that if the emigrant Muslim woman has emigrated after a quarrel with her infide I husband, with the intention of dissolving his marital right, an immediate separation will take place not on the basis of the separation of abode (ikhtilaf dar) but on the basis of her this intention. (Al-Mabsut' Hedayah).
But a careful consideration of the Qur'anic verse under discussion clearly shows that in this matter the most sound opinion is the one that Imam Abu Hanifah has expressed. AIlah has sent down this verse concerning the believing women who emigrated and about them He has said that they are no longer lawful for the pagan husbands whom they have left behind in dar al-k-kufr, and has allowed the Muslims of the Islamic state to marry them after they have paid them the dowers. On the other hand, the emigrant Muslims have been addressed and enjoined not to keep those of their pagan wives in wedlock, who are left is dar al-kufr, and to ask of the disbelievers the dowers that they had given to those women. Obviously, these injunctions do not pertain only to the difference of religion, but it is the difference of abode that has given these injunctions this particular form. If on account of migration the marriages of the Muslim women with. their pagan husbands had not become dissolved, how could the Muslims be permitted to marry them, and .that too in a way that the permission does not contain any reference to the observance of the waiting period by them? Likewise, if even after the revelation of the Command, "and you also should not hold back unbelieving women in marriage the pagan wives of the Muslim emigrants had continued to be their wives, they also would have been commanded to divorce them. But there is no reference here to this either. No doubt, it is correct that after the revelation of this verse, Hadrat `Umar and Hadrat Talhah and some other Emigrants had divorced their wives, but this is no proof that such a thing was at aII necessary, and their severing of the marital relationship with those wives depended on their pronouncing divorce on them, and if they had not pronounced the divorce, the wives would have continued to be their legal wives.
In response to this, three events of the Holy Prophet's time arc quoted as precedents, which arc regarded as a proof that even after the revelation these verses the Holy prophet (upon whom be Allah's peace), in spite of the separation of abode, allowed the marriage relationship to continue between the believing and the unbelieving spouses. The first event .is - this, A little before the conquest of Makkah, Abu Sufyan visited the Islamic army at Marr az-Zahran (present Wadi Fatimah) and accepted Islam, and his wife, Hind, remained a pagan in Makkah. Then Hind accepted Islam after the conquest of Makkah, and the Holy Prophet (upon whom be peace) ruled that their previous marriage would continue to be valid. The second event is that after the conquest of Makkah, `Ikrimah bin Abu Jahl and Hakim bin Hizam fled Makkah and in their absence the wives of both became Muslims Then they sought the Holy Prophet's protection for their husbands and went and brought them back. Both the men come before the Holy Prophet and accepted Islam and in their case too he held their previous marriages as valid. The third event relates to the Holy Prophet's own daughter, Hadrat Zainab, who emigrated to Madinah and her husband, Abul-'As, was left an infidel in Makkah. About him Musnad Ahmad, Abu Da'ud, Tirmidhi and Ibn Majah contain a tradition on the authority of Ibn `Abbas, saying that he came to Madinah in A.H. 8 and became a Muslim, and the Holy Prophet allowed his daughter to continue in marriage with him, without renewal of marriage. But the first two of these events, in fact, do not come under the definition of the difference of abode. For the difference of abode does not mean a person's .temporarily leaving one place for another, or his fleeting to another place, but the difference takes place only in case a person emigrates from one place and settles down in another place and the difference of nationality takes place between him and his wife. As for the event relating to Hadrat Zainab (may Allah bless her), there arc two traditions, one related on the authority of Ibn `Abbas, as referred to above, and the other related by Imam Ahmad, Tirmidhi and Ibn Majah on the authority of Hadrat 'Abdullah bin 'Amr bin `As. In this second tradition it has been stated that the Holy Prophet (upon whom be Allah's peace) allowed his daughter to continue as the wife of Abul-'As after renewal of the marriage, and with a fresh dower. Thus, in the first place, this precedent, due to the difference in reporting, no longer remains a definite argument with those who deny the legal effect of the separation of abode. Secondly, if they insist on the authenticity of Ibn `Abbas's tradition, it contradicts their own viewpoint. For, according to their viewpoint, the marriage of the spouses between whom difference of religion takes place and who have consummated their marriage remains valid only until three menstruations. In the meantime if the other party also accepts Islam the marriage continues to be valid, otherwise it dissolves automatically as soon as the third menstrual course starts. But in the case of Hadrat Zainab from which they take their argument, the difference of religion between the spouses had taken place several years earlier. Abul-'As had affirmed the faith six years after Hadrat Zainab's emigration, and at least two years before his conversion to Islam the injunction had been revealed' in the Qur'an, according to which the Muslim woman had been forbidden for the pagans. (4) The fourth case is of apostasy. Its one form is that both the husband and the wife should become apostates together, and the other that one of them becomes an apostate and the other remains a Muslim.
If both the husband and the wife become apostates together, the Shafe'is and the Hanbalis say that their marriage contracted in Islam will dissolve immediately if this happened before consummation, and after the lapse of the waiting period if it happened after consummation. On the contrary, the Hanafis hold the view that. although according to common sense their marriage should dissolve, yet in the time of Hadrat Abu Bakr, when thousands of people became apostates, and then again became Muslims, the Companions did not direct anyone to renew the marriage; therefore, we accept this unanimous decision of the ('companions and admit, contrary to common sense, that in case both the husband and the wife become apostates together, their ' marriages do not dissolve."(AIMabsut; Hedayah; Fath al-Qadir Al-Fiqh 'alal-Madhahib al- Arba'h).
If the husband becomes an apostate and the wife continues to be Muslim, according to the Hanafis and the Malikis, the marriage will dissolve immediately, whether this happens before consummation or after it. But the Shafe'is and the Hanbalis in this connection make a distinction between the two states. If it happens before consummation, the marriage will dissolved immediately, and if it happens after consumation it will endure till the end of the waiting period, In the meantime ii' the person returns to Islam, marriage will continue to hold good, otherwise, on teh expiry of the waiting period, it will be deemed to have dissolved since he became an apostate. That is, the woman will not have to observe another waiting period afresh. AlI the four jurists are agreed that if this happened before consummation, the woman would be entitled to half the dower, and if after consumation to full dower.
And if the woman became an apostate, the old ruling of the Hanafis was that in this case too. marriage would dissolve immediately. But later the scholars of Balkh and Samarkand gave the ruling that in case the woman becomes an apostate, separation does not take place immediately; and by this their object was to discourage the women from adopting this course in order to get rid of their husbands. The Malikis' verdict is somewhat similar. They say that if circumstances testify that the woman adopted this course only as a pretence to win separation from the husband, separation will not take place. The Shafe'is and the Hanbalis say that in case of the woman's turning an apostate too, the law is the same as in case of the husband's turning an apostate. That is, if she became an apostate before consummation, marriage would dissolve immediately and if after consummation, Marriage will endure till the end of the waiting period. If conversion takes place in the meantime marriage will continue to hold good, otherwise it will be deemed to have dissolved since the time of apostasy. There is consensus with regard to the dower. If the woman became an apostate, before consumation she would not be entitled to any dower, and if she adopted apostasy after consummation, she would be entitled to full dower. (AI-Mabsut.' Hedayah; Fath al-Qadlr, AI Mughni; Al-Fiqh alal-Madhahib al-Arb ah).