2. Al-Baqara

Verse 221 carries an injunction relating to marriage with Mushrikin (those who associate partners with Allah). The commentary which follows explains the injunction in some detail.

Inter-Marriage between Muslims and Kafirs is Prohibited

In the verses under discussion an important ruling has been given. It states that the marriage of Muslim males with Kafir کافر (disbelieving in Islam) females and the marriage of Kafir کافر females with Muslim males is not permissible. The reason is: Kafir کافر males and females become the cause that leads man into the Hell. Marital relations demand mutual love and harmony and without these the real purpose behind such relationship remains unrealized. If such close relations of love and affection are established with Mushrikin مشرکین or disbelievers, the inevitable effect will be that Muslims may emotionally tilt towards Kufr کُفُر and Shirk or, in a lesser degree, the very abhorrence of Kufr کُفُر and Shirk may just not remain there in their hearts. Consequently, they too, may get involved with Kufr کُفُر and Shirk and thereby end up in Hell. Therefore, it was said that these people call everyone to come to Hell while Allah Almighty calls man to Paradise and to His forgiveness and, for this purpose, states His injunctions openly and clearly so that people follow the wise counsel. Let us consider a few points at this stage:

1. If the word, Mushrik مشرک in this verse is taken to mean non-Muslims as a whole it would be necessary to exempt non-Muslim women of the Ahl al-Kitab اھل الکتاب (the people of the Book) from the purview of this injunction, because it is expressly stated in another verse that:

وَالْمُحْصَنَاتُ مِنَ الْمُؤْمِنَاتِ وَالْمُحْصَنَاتُ مِنَ الَّذِينَ أُوتُوا الْكِتَابَ مِن قَبْلِكُمْ

And good women from among those given the Book before you (marriage with whom is lawful for you). (5:5)

But if the word Mushrik is taken to mean specially those non-Muslims who are not from amongst the Ahl al-Kitab اھل الکتاب (People of the Book i.e. the Jews and the Christians), this verse needs no exception, because it covers only those non-Muslims who do not believe in any prophet and scripture.

2. Let us take the second important point. The Qur'an forbids marital relations between Muslims and disbelievers for the reason that such close relations could become the source of involvement in Kufr کُفُر and Shirk شرک . Now this is apparently true of all non-Muslim groups. Why then, the women from amongst the Ahl al-Kitab اھل الکتاب (the Jews and the Christians) have been excluded?

The answer is obvious. The difference the people of the Book have with Islam is relatively lesser and lighter as compared with other non-Muslims. Islamic belief is tri-polar, that is, Tauhid توحید (Oneness of God), Akhirah (Hereafter) and Risalah (Prophethood). Out of these, if we consider the belief in Akhirah آخرت ، even the Jews and Christians from amongst the people of the Book agree with Muslims in accordance with their original faith, wherein, very similarly, it is kufr کُفُر (infidelity) even in their original faith to attribute partners with God. That the Christians, in their love for Sayyidna ` Isa (علیہ السلام) ، and in …

No sexual intercourse during menstruation

The basic purpose of these verses is to declare the prohibition of having sexual intercourse with a woman in a state of menstruation. If someone committed sexual intercourse in such a state either unknowingly or carelessly, he has to make Taubah (repentance). In this context it has been said in the verse 222 that "Allah loves those who are most repenting."

The verse 223 points out to the lawful ways of having sexual intercourse with one's woman. The permission of such intercourse has been subjected to two conditions. Firstly, it should take place at a time when the woman is pure from her menstruation. Secondly, carnal intercourse is not allowed at all. This verse begins with a comprehensive remark: "Your women are for you a soil to cultivate." Here the woman has been compared with a soil, while the husband has been compared with a cultivator. This is to indicate that the sexual intercourse has not been allowed for satisfying the sexual lust only, but also to make it a valid source for having children. By using this expression the Holy Qur'an has given a subtle indication to the prohibition of carnal intercourse, even with one's wife, because it can never be a productive act, and there is no question of 'cultivation' therein.

Subject to these two conditions (namely, the purity of the woman from her menses, and avoiding the carnal intercourse) one can enjoy whatever way he wishes to have sexual intimacy with his wife. In this context, it has been said, "Come to your soil from where you will". It indicates that in so far as the ultimate place (of penetration) is a 'soil' (which stands for the female vagina which is productive like a soil), one can elect whatever way he likes to reach this ultimate place. Thus, lying over the woman or beside her or beneath her, acceding to the vagina from any side, front or back, sitting or kneeling -- all these and similar other positions are allowed while performing sexual intercourse subject to the two conditions mentioned above.

No sexual intercourse during menstruation

The basic purpose of these verses is to declare the prohibition of having sexual intercourse with a woman in a state of menstruation. If someone committed sexual intercourse in such a state either unknowingly or carelessly, he has to make Taubah (repentance). In this context it has been said in the verse 222 that "Allah loves those who are most repenting."

The verse 223 points out to the lawful ways of having sexual intercourse with one's woman. The permission of such intercourse has been subjected to two conditions. Firstly, it should take place at a time when the woman is pure from her menstruation. Secondly, carnal intercourse is not allowed at all. This verse begins with a comprehensive remark: "Your women are for you a soil to cultivate." Here the woman has been compared with a soil, while the husband has been compared with a cultivator. This is to indicate that the sexual intercourse has not been allowed for satisfying the sexual lust only, but also to make it a valid source for having children. By using this expression the Holy Qur'an has given a subtle indication to the prohibition of carnal intercourse, even with one's wife, because it can never be a productive act, and there is no question of 'cultivation' therein.

Subject to these two conditions (namely, the purity of the woman from her menses, and avoiding the carnal intercourse) one can enjoy whatever way he wishes to have sexual intimacy with his wife. In this context, it has been said, "Come to your soil from where you will". It indicates that in so far as the ultimate place (of penetration) is a 'soil' (which stands for the female vagina which is productive like a soil), one can elect whatever way he likes to reach this ultimate place. Thus, lying over the woman or beside her or beneath her, acceding to the vagina from any side, front or back, sitting or kneeling -- all these and similar other positions are allowed while performing sexual intercourse subject to the two conditions mentioned above.

The Verse warns those who swear in the name of Allah that they will not do some vituous deeds or that they will not effect a compromise between two groups. The Verse reminds them that by this behaviour they are using the name of Allah as a barrier against the good deeds, which is a severe violation of the sanctity of the name of Allah, and they must avoid it in any case,

Note:

The laghw لغو or ineffectual oath has two meanings:

I. In the first case it means a false oath sworn without volition over something in the past, or it could have been sworn with volition while the oath-taker considers it to be true in his supposition. For ex-ample, guided by his information and supposition, one ends up declaring on oath that a certain person has arrived while that person had not arrived in reality. Similarly, if someone swears on oath for some-thing in future unintentionally, while he has been actually wanting to say something else, but the words of oath come out of his lips mistakenly, this type of oath also falls in this category. All these three types are not an act of sin and that is why they are called laghw لغو or ineffectual. This act will not be reprehensible in the Hereafter (Akhirah). As compared to this, the oath which has been declared reprehensible is the one that has been uttered intentionally knowing it to be false. This is known as ghamus (perjury), and is an act of sin, but according to the Hanafiyyah, it does not require kaffarah or expiation. Therefore, لغو laghw, in the sense explained earlier, involves no kaffarah more obviously, (because it is not a sinful act). The verse under discussion exclusively takes up these two categories that carry no کَفَّارہ kaffarah.

II. Laghw لغو also means that which has no kaffarah کَفَّارہ . It will be called as laghw because it does not entail the liability of Kaffarah کَفَّارہ in this world.

III. Given this meaning, the word, laghw لغو is inclusive of ghamus, which being an act of sin, however, does not require kaffarah کَفَّارہ .

As compared to this, the oath that requires kaffarah کَفَّارہ is called mun'aqidah منعقدہ (that which is established, confirmed: fait accompli). For instance, if someone intentionally declares on oath to the effect that he or she would or would not perform a certain act, then, acting contrarily requires kaffarah. (Bayan al-Qur'an)

Note:

If someone takes an oath that he will not have sexual intercourse with his wife, the case has four situations:

(A) No time-limit was fixed.

(B) A time-limit of four months was fixed.

(C) A time-limit of more than four months was fixed.

(D) The limit was identified as less than four months.

So, situations A, B and C are termed in Shari` ah as 'Ild' (ایلاء ). The injunction covering these situations is: If the oath-taker breaks his oath within four months and resumes sexual intercourse with his wife, he will have to come up with kaffarah کَفَّارہ for his oath while his nikah (marriage) remains intact. And should it be that the time-limit of four months did expire and the oath-taker did not break his oath, an irrevocable divorce on his wife will become effective, that is, taking her back without remarriage does not remain correct any more. However, if they, by mutual consent, enter into marriage this will be correct. Halalah حلالہ (an intermediary marriage of the woman with a third person) is not required. The injunction in the fourth situation is: If the oath is broken, kaffarah کَفَّارہ will be required and if the oath is completed, the marriage, even then, will remain valid. (Bayan al-Qur°an)

A great verse defining the status of man and woman

This verse contains a rule of Shari` ah concerning the mutual rights and duties enjoined upon men and women and explains the degree of their role. Important details of this very rule appear before this verse, and again, after the verse, through several sections.

The place of women in Islam

At this point, it seems pertinent to explain to some extent the status given by Islam to women. If understood in its full perspective, it will certainly lead to the conclusion that a just and moderate social system would not have required more than this. It may be noted that this is the crucial place, any deviation or departure from which becomes a great danger for man's life here and in the Hereafter.

Deliberation would reveal that two things serve as the necessary basis for the survival and development of this world. These are: woman and wealth. But, a look at the other side of the coin shows that this twosome is also a source of disturbance, bloodshed and tribulation. Further deliberation would easily help one reach the conclusion that although these two, given their real place in life, are instrumental in the progress of this world, yet, as and when, they are aimlessly moved away from their real place, they are capable of shaking the world like an earthquake.

The Qur'an has given man a way of life, a system. Both these human factors have been assigned their correct respective places in a way that they yield the maximum benefits to the total exclusion of peacelessness. The proper place of wealth, the sources of its acquisition and the ways of spending it, as well as, a just system of the distribution of wealth is a regular field of knowledge. Detailed discussions of this subject will Insha Allah appear on some other occasion. My published treatise entitled, 'The Distribution of Wealth' could serve as an indicator of basics.

Being discussed here, at this point, is woman and her rights and duties. About this, the verse under reference states: As there are rights of men over women which must be given, so there are rights of women over men which must be given. However, the quantum of difference that must be recognized here is: Men have a 'step' above women. Almost the same subject has appeared in Surah Al-Nisa' in this manner:

الرِّ‌جَالُ قَوَّامُونَ عَلَى النِّسَاءِ بِمَا فَضَّلَ اللَّـهُ بَعْضَهُمْ عَلَىٰ بَعْضٍ وَبِمَا أَنفَقُوا مِنْ أَمْوَالِهِمْ

Men stand care-takers of women, since Allah has made some of them excel the other, and because they have spent of their wealth. (4:34)

The status of women in pre-Islamic society

Before Islam, in the age of ignorance (Jahiliyyah جاھلیہ ), it was common practice that women were equated with articles of home use. They would be bought and sold like cattle. She had no right whatsoever in relation to her marriage. She had to go where she was sent by her guardians. Far from being entitled to some share in the inheritance from her relatives, she herself was treated as a piece of inheritance like any other household item. She was considered as something owned by men while she owned nothing. And, even that which she allegedly owned she could not spend without …

Commentary

The injunctions governing talaq طلاق (divorce) and nikah نکاح (marriage) appear in several verses throughout the Qur'an but the verses mentioned here consist of cardinal rules of procedure in cases of divorce. To understand these, it is necessary to know the status of Nikah نکاح in the Shari'ah of Islam.

Marriage, divorce and the rules governing them

One commonly known aspect of Nikah نکاح (marriage) is that of a mutual transaction and contract similar to transactions in buying and selling and in loans and payments. The second aspect is that of Sunnah and ` Ibadah عبادہ . On this, there is a consensus of the whole ummah that nikah نکاح ، being far above ordinary transactions and contracts, has the status of ` Ibadah عبادہ and Sunnah (the act of worshipping Allah and following in the footsteps of the Prophet ﷺ ). Therefore, in order that nikah نکاح be duly solemnized, there are, by the consensus of the ummah, some peculiar conditions which are not found in ordinary transactions of buying and selling.

First of all, nikah نکاح cannot take place between any man and any woman. Governing this, there is an absolute law of the Shari'ah under which several categories of men and women cannot be joined together in the bond of marriage.

Secondly, for all transactions and contracts, in order that they be concluded and finalized, witness is no condition. A witness is needed when parties differ, but nikah نکاح is not such a transaction. Here, in order that it be concluded, the physical presence of witnesses is a pre-condition. If a man and woman, the two of them mutually agree to have their marriage solemnized without witnesses, and even if, any one of the two never differs or retreats, that marriage is, according to the Shari'ah, still invalid, unless both respond to the proposal and acceptance before witnesses. However, the Sunnah is that 'nikah نکاح ' must be solemnized with a public announcement. Similarly, there are many other conditions and rules of decorum that are either necessary or masnun مسنون in marriage.makhan38

According to Imam Abu Hanifah (رح) ، and several other leading Muslim jurists, the aspect of ` Ibadah عبادہ (worship) and Sunnah in nikah نکاح dominates over the aspect of transaction and contract. Evidences from the Qur'an and Sunnah support it.

After this brief familiarity with the real nature of marriage, let us understand divorce. The outcome of talaq طلاق (divorce) is to terminate the transaction and contract of nikah نکاح (marriage). Just as the Shari` ah of Islam, by giving nikah the status of an act of ` Ibadah عبادہ ، has kept it at a level higher than common transactions and contracts and has imposed on it several restrictions, very similarly, the termination of this deal has not been left free, as in common transactions, where the parties may terminate the deal as and when they elect to do so, and go on to make a fresh deal with someone else. It has rather made a pointedly wise legal framework which has been described in the verses under reference.

According to the drift of Islamic teachings, the transaction and contract of nikah نکاح should be for the whole life-span. The point of departure where it has …

After dealing with the above problem, the third talaq was mentioned in this manner فَإِن طَلَّقَهَا فَلَا تَحِلُّ لَهُ مِن بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَ‌هُ that is, if that person goes on to pronounce the third talaq as well (something not liked by the Shari'ah), the transaction of nikah shall stand totally annulled. He has exhausted his choice to revoke his divorce and take his wife back. And since he transgressed the limits of Shari'ah by unnecessarily giving the third talaq, he must now have his punishment whereby it is not possible for them to remarry each other even if both of them agree to do so. Now, in order that they could remarry each other, the condition of such nikah is that the woman (after completing her period of ` iddah following talaq) should enter into marriage with another man, fulfill matrimonial obligations and live with this other husband. Thereafter, if by chance that other husband also divorces her (or dies), she could remarry the first husband after completing her ` iddah. The last sentence of the verse says:

فَإِن طَلَّقَهَا فَلَا جُنَاحَ عَلَيْهِمَا أَن يَتَرَ‌اجَعَا

Should he too divorce her, then there is no sin on them in their returning to each other.

Detailed injunctions regarding three divorces at a time

A close look at the style of the noble Qur'an makes it explicitly clear that the right method of pronouncing talaq stipulated by the Shari'ah is that one should, at the most, reach the limit of two talaqs and it is not appropriate to reach to the extent of a third talaq. After the use of words الطَّلَاقُ مَرَّ‌تَانِ in verse 229, the third talaq is identified in the words فَإِن طَلَّقَهَا (Then, if he divorces her) wherein the letter إِن (if) is note-worthy. Here the hint in question is visibly present. Otherwise, the third talaq could simply be expressed by saying الطَّلَاقُ ثُلث 'The divorces are three.' Now the text, to the exclusion of expressions to this effect, has an expression of its own which carries a clear hint that one should not reach the stage of the third talaq. This is why Imam Malik (رح) and several other jurists did not just permit the third talaq. They call it talaq al-bid'ah الطَّلَاقُ (the innovated talaq: divorce without the authority of the Qur'an and Sunnah). Some other jurists have ruled that three talaqs are permissible only on condition that these three talaqs be pronounced separately in three tuhrs (the state of post-menstrual purity). In the terminology used by these jurists this too has been termed as talaq al-sunnah. But none of them are proposing by this term that giving three talaqs in this manner is desirable, and is according to the Sunnah. In fact, this was given the name of talaq al-sunnah as opposed to talaq al-bid'ah for the simple reason that this form does not amount to bid'ah (an innovation in settled religious practice).

The gist of that which stands proved regarding the talaq count, on the authority of the guidance given by the Qur'an and Sunnah, and the practice of the Companions of the Holy Prophet ﷺ and their followers is this: When no option, except that of talaq is left, the best method of pronouncing talaq is to pronounce one talaq during the …