4. An-Nisaa

Sequence _ _

The last verse of Surah 'Al-` Imran was concluded with an exhortation to Taqwa, the fear of Allah. The present Surah begins with Taqwa in the mode of command. The previous Surah mentioned some battles, described the manner of treating antagonists, condemned misappropriation in battle spoils and took up several other matters. In the earlier part of the present Surah, there are injunctions about rights related to one's own people which must be fulfilled while living and inter-acting with them, such as, the rights of orphans, relatives and wives (known as حقُوقُ العباد Huququl-` Ibad: the rights of the servants of Allah). But, there are some rights which are justiciable, that is, their fulfillment can be enforced through law, like common transactions of buying and selling. The rights involved in lease, tenancy and wages can be settled through mutual agreements and arbitration; should a party fall short in fulfilling settled rights, these can be legally retrieved and enforced. But, the fulfillment of the rights of those in one's own charge - children, parents, husband and wife, and orphans - and the rights of other relatives which fall on each other - all depend upon civilized behaviour, respect, loving and caring, and above all on that genuinely heartfelt desire to do what is good for them. These are behaviour patterns which cannot be weighed on a scale of things. That they be determined fully and perfectly through mutual agreements is also much too difficult. Therefore, there is just no other method of their fulfillment except having the fear of Allah and the fear of what would happen in the life to come. This is known as Taqwa and the truth of the matter is that this power of Taqwa is more effective than the combined powers of government and law. Hence, the Surah opens with the command of Taqwa when it says: يَا أَيُّهَا النَّاسُ اتَّقُوا رَ‌بَّكُمُ ( O men, fear your Lord).

The word, اتَّقُوا 'ittaqu' translated here as 'fear' means 'fear acting against your Lord' which perhaps is the reason why the Holy Prophet ﷺ used to recite this verse as part of his address while solemnizing a marriage. Therefore, reciting it in the Khutbah of Nikah is a perennial revival of the Sunnah. Here, the form of address in the verse is worth attention. It says: يَا أَيُّهَا النَّاسُ ( O men) which includes all human beings, men or women, and whether they are present at the time of the revelation of the Qur'an or shall continue to be born right through to the Day of Doom. Then, alongwith the command of 'ittaqu' (fear) the word used is 'Rabb' (Lord) which has been selected out of the most fair names of Allah. This is to point out that the fear of Allah so enjoined has a justification and wisdom of its own. The Being totally responsible for man's nurture the manifestations of Whose Lord-worthiness he witnesses every moment of his life, certainly deserves all the awe one is capable of. The very thought that anyone could rise in antagonism and defiance against Allah is terribly dangerous.

Immediately after the text brings into focus the most exalted majesty of the Lord by saying that He created human beings, all of them, in His wisdom and mercy. Here …

The Rights of the Orphans and the Protection of Their Property:

The first verse stressed upon the care and concern for kinship in an absolute sense. Then came the general emphasis on the fulfillment of rights that issue forth from it. Now, the second verse carries the command to protect the properties of the orphans, as well as the prohibition of any misappropriation therein because the guardian of an orphaned child is usually one of his relatives. Therefore, this too has a bearing on the fulfillment of the rights of kinship.

The word, الْيَتَامَىٰ 'al-yatama' in the first sentence of verse 2: وَآتُوا الْيَتَامَىٰ أَمْوَالَهُمْ (And give the orphans their property), is the plural of الیتیم al-yatim (the orphan). Literally, it means the lone or the unique. Therefore, a pearl that resides in its shell all alone is called اَلدُّرّ الیتیم Ad-Durr al-Yatim (literally, 'the orphan-pearl' ). In the terminology of Islamic law, a یتیم yatim is a child whose father has died. Incidentally, among animals, a yatim is an offspring whose mother has died (Qmiis). When a child attains maturity, that is, becomes pubert, he is no more referred to as yatim in the terminology of Islamic law as it has been clarified in a hadith which says: لا یتم بعد الاحتلام that is, 'Orphanhood ends with puberty'. (Mishkat, p. 284)

If orphaned children have property, either gifted to them or received by them through someone's inheritance, then the responsibility of protecting this property, as well as the orphan himself, falls on the shoulders of the person who is the guardian of the orphan. It does not matter whether the guardian of the orphan was appointed by the father of the orphan himself before his death, or by the government. It is part of the guardian's duty that he should certainly" cover all costs incurred on the necessary maintenance of the orphan from what he owns, but he should not give what the orphan owns into his possession before he has reached the age of maturity because he, being an immature minor, may lose it somewhere. So, the statement: 'give the orphans their property', in this verse, has been clarified a little later in verse 5 where it has been said that the property of the orphans should be given to them after it is certain that they have become mature and do have the ability to distinguish between what is good for them and what is not.

Therefore, the meaning of 'give the orphans their property' in this verse should be taken in the sense of protecting their property so that it could be given to them at its appropriate time. Furthermore, there is a clear hint in this sentence towards the extent to which the guardian of the orphan is responsible for his welfare. It is being said here that his responsibility is not limited to just that he himself refrains from eating up or squandering the property of the orphan, but it is also an integral part of his duties that he should do everything possible to protect, guard and conserve the property in the best of state, capable of being handed over to him when mature.

The second sentence: وَلَا تَتَبَدَّلُوا الْخَبِيثَ بِالطَّيِّبِ prohibits the substitution of bad things for the good ones. There were people …

Sequence

In the previous verse, guardians were warned against pilferage or misappropriation in the property of orphans. The present verse is an extension of the basic command from another angle. Here they are warned against any attempt to marry orphaned girls under their guardianship hoping to get away by fixing a dower of their choice and claiming their properties as additional benefit.

So, the Holy Qur'an has very clearly declared that every excuse, device or stratagem set up to usurp the property of the orphan is impermissible. It is the duty of the guardians that they should protect the rights of the orphans honestly.

Commentary

Orphaned girls: Violation of their rights and its prevention:

During Jahiliyyah guardians holding orphaned girls under their charge, used to pick up the ones who had good looks or owned properties of value and marry them or arranged to have them married to their sons. They would fix the dower of their choice, usually the lowest, and maintained them in whatever manner they elected for they were the very guardians and caretakers for them. Their fathers were not there to take care of their rights who would have certainly given them in marriage to a suitable person after full deliberation on all aspects a daughter faces in married life and would have made sure that they remain happy and well-covered.

There is a narration in Sahih al-Bukhari from Sayyidah ` A'ishah ؓ which reports that an incident of this nature came to pass during the blessed time of the Holy Prophet ﷺ There was someone who had an orphaned girl under his guardianship. He had a fruit farm in which this girl held a share. This man married the orphaned girl and, rather than give her dower and things from his pocket, took her very share in the farm in his possession. Thereupon, the following verse was revealed:

وَإِنْ خِفْتُمْ أَلَّا تُقْسِطُوا فِي الْيَتَامَىٰ فَانكِحُوا مَا طَابَ لَكُم مِّنَ النِّسَاءِ

And if you fear that you will not do justice to the orphans, then marry the women you like...

It means that if you apprehend that after marrying a girl under your guardianship, you cannot do justice to her, then, instead of marrying her, you should marry other women of your choice.

The Marriage of Minors

The word, يَتَامَىٰ 'yatama' in this verse means orphaned girls. In the terminology of the Shari` ah, a 'yatim' is a boy or girl who has not yet attained the age of puberty. So, this verse proves that the guardian' of an orphaned girl does have the right to give her in marriage while she is a minor and has not attained the age of puberty, but on condition that this decision is based on wisdom and the future welfare of the girl. This is to avoid unfair practices common in some communities where a grown up girl is married to a child without any regard for the difference in their ages or without any investigation into the living conditions or character of the boy.

The orphaned girls who have attained the age of puberty are, no doubt, entitled to choose their husbands freely on the basis of their majority. Nevertheless, girls (in traditionally Islamic societies) tend to be modest and shy and usually would not come out strong or freely express …

In the previous verse, the objective was to remove the injustice done to women through the multiplicity of marriages. This verse takes up a particular right of women and aims to remove the injustice practiced in this matter. This is the right of مہر mahr (dower).

Commentary

In pre-Islam Arabia, injustices in the payment of dower took many forms:

1. To begin with, the dower which was the right of the girl being given in marriage, was not given to her. Instead, the dower was taken by the guardians of the girl directly from the husband - rank injustice indeed. To get rid of this practice, the Holy Qur'an said: وَآتُوا النِّسَاءَ صَدُقَاتِهِنَّ (and give the women their dower). This command is addressed to the husbands so that they themselves give their wives their dowers and not give these to others. Also addressed here are the guardians of the girls with the instruction that they should, in case they happen to receive the dower meant for the girls, give it straight to the girls and make sure that they themselves do nothing to put the money in personal use without the permission of the girls.

2. Another injustice related to the attitude of the giver of the dower. If someone had to pay it and realised that there was no way out, he would be very sour and unhappy and do it unwillingly as if he was paying a penalty. This injustice was removed through the use of the word, نِحْلَةً nihlah, since nihlah in Arabic usage means 'giving something cheerfully'.

So, the verse here teaches that the dower of women is their right which must be fulfilled as a matter of obligation. Since, as a rule, all obligatory rights must be discharged cheerfully, so it should be in the case of dower, that is, 'give in good cheer'.

3. Yet another injustice regarding the payment of dower was that many husbands, taking advantage of the powerlessness of the wife, would use pressure and make them forgo and forgive their dower. This act of theirs hardly brought forth real forgiving of the standing right, but they, on their part, went about free of the concern for dower which, according to their thinking, was 'forgiven'.

To eradicate this injustice, it was said in the verse: فَإِن طِبْنَ لَكُمْ عَن شَيْءٍ مِّنْهُ نَفْسًا فَكُلُوهُ هَنِيئًا مَّرِ‌يئًا . It means: 'if these women give up some of it out of their own sweet will, you may have it to your advantage and pleasure.'

The point is that exacting forgiveness by pressure or compulsion from an unwilling wife is an exercise in futility. Nothing gets forgiven in this manner. But, should it be that they themselves elect, out of their free choice and will, in its most genuine sense, to forgo or forgive a part of the dower, or return it to you after they had already taken it, then, this is permissible for the husbands, and correct as well.

Surely, these injustices which the Holy Qur'an aims to remove in this verse prevailed at peak during Jahiliyyah. But, very regrettably, some of these practices of pre-Islam days still survive among Muslims. There are tribes and geographical areas where one or the other such injustice is not difficult to find. All Muslims must stay away from being a party to such injustices.

The restriction …

The injunction to test the ability and understanding of minors

Once we know from verse 5 that minors should not be entrusted with properties until such time that their ability to discern and decide stands proved, the injunctions to educate and test such children to determine their ability follow in the next verse (6) Verse 6: وَابْتَلُوا الْيَتَامَىٰ حَتَّىٰ إِذَا بَلَغُوا النِّكَاحَ translated as 'and test the orphans until they reach marriageable age;' means that children, well before they become pubert and marriageable, should be tested through small assignments of buying and selling in order to determine their ability to conduct themselves in transactions on their own. This process of practical experimentation should continue right through upto the age of marriage-ability, that is, when they become pubert and mature. This is the time of special assessment. Now it should be determined if they have become smart and self-reliant in their affairs. Once this is sensed as 'dependable', it is time to hand over their property to them.

In short, given the nature of children and the factors involved in the growth of reason and intelligence among them, they have been divided in three stages. One: minority (before puberty). Two: After puberty. Three: After self-reliance, and discretion in conducting personal affairs (Rushd as opposed to Safahah). During the first stage, the guardians of children have been instructed to educate and train them by providing for them hands-on experience, that is, let them become smarter by conducting small dealings in buying and selling on their own. The expression: وَابْتَلُوا الْيَتَامَىٰ (and test the orphans) in this verse means exactly this. It is from here that Imam Abu Hanifah (رح) has deduced the ruling that the transactions of buying and selling entered into by minor children with the permission of their guardian are sound, valid and operative.

In accordance with the other injunction, when children become mature, pubert and marriageable, the guardian should check up their state of growth at that stage in terms of experience, intelligence and dealings, and once it becomes clear that they understand their profit and loss and handle their affairs and dealings in a satisfactory manner, their property should be handed over to them.

The Age of Maturity

Along with the injunction of maturity (بلوغ bulugh) in this verse, the Holy Qur'an has also answered the question as to the 'age' when a child would be taken as mature ( بالغ baligh) by saying: إِذَا بَلَغُوا النِّكَاحَ translated as 'until they reach marriage-ability'. Here, it has been indicated that real maturity is not tied up with any particular count of years. Rather, it depends on particular indicators and signs experienced by adults entering the threshold of adulthood. When, in terms of these indicators and signs, they would be regarded fit to marry, they would be considered mature, even if their age does not exceed thirteen or fourteen years. But, should it be that such signs of maturity just do not show up in some child, he shall be considered mature in terms of age, a position in which Muslim jurists vary. Some fix eighteen years for boys and seventeen …

Right from the opening of Surah Al-Nis-a', the theme of universal human rights, particularly those relating to family life, has been appearing regularly. Verses before those dealt with the rights of orphans. The four verses here also take up particular rights of women and orphans which relate to inheritance.

The first verse (7) refutes the custom of Jahiliyyah under which women were just not allowed to inherit. The verse declares their entitlement to their share as fixed by Islamic law and strictly forbids any attempt to decrease their due right. Since the subject concerned those who had a determined share in inheritance, and it is not uncommon that when such distribution is being made, some persons from among the poor and the orphans do make their appearance on the occasion, therefore the second verse (8) lays down the rule that they should be treated benignly. But, this command is not obligatory; it is, rather, commendatory.

The third and fourth verses (9, 10) also emphasize the importance of injunctions relating to orphans.

Commentary

The right to inherit from parents and other nearest of kin

Before Islam, orphans and women, the weaker links in the human chain, had been victims of all sorts of injustice. To begin with, none of their rights were recognized as such. Even if one of these was conceded, who could wrest it from men and hope to hold it safe? Such power and authority did not exist.

The breakthrough came when Islam championed their cause, legalized their rights and instituted safeguards to see that these stay secure against infringements. All this happened in the background when nations around the world had allowed these two weaker units of human society to remain deprived of their natural and obligatory rights. Such was the state of the Law of inheritance. The pre-Islam Arabs seemed to have lived by the very principle that the one deserving of inheritance is the one who rides a horse, fights against enemies and collects battle spoils. (Ruh a1-Ma` ani, v. 4, p.21). As quite obvious, women and children could not live by this principle. So, according to their principle of inheritance, only a young and adult boy could become the inheritor. A girl was absolutely out of consideration for this purpose, irrespective of whether she was major or minor. And a boy too, if minor and immature, would not be deserving of inheritance.

There was an incident during the blessed time of the Holy Prophet ﷺ when a Companion Sayyidna Aws ibn Thabit ؓ died. He left behind two daughters, a minor boy and his wife as the inheritors. But, very much like the old Arab custom, two of his cousins from the father's side came and took the whole property in their possession and just gave nothing to anyone from among the children and wife of their deceased brother. This may have been so because, according to their customary practice, a woman was absolutely out of the pale of inheritors, major or minor. This conveniently ruled out the wife and the two daughters. As far as the boy was concerned, he was a minor and, therefore, he too was excluded from inheriting anything. As a result, the two paternal cousins became the inheritors of the whole property.

Inspite …

Now look at the beauty and delicacy of the Qur'anic arrangement of things. On the one hand, there is the just rule offered by the Qur'an itself - that the nearer in kinship shall exclude the farther. On the other hand, there is that wonderful concern for the disappointment of the excluded farther'. Therefore, a regular verse (8) has been devoted to carry the necessary instruction as to how this situation will be handled:

وَإِذَا حَضَرَ‌ الْقِسْمَةَ أُولُو الْقُرْ‌بَىٰ وَالْيَتَامَىٰ وَالْمَسَاكِينُ فَارْ‌زُقُوهُم مِّنْهُ وَقُولُوا لَهُمْ قَوْلًا مَّعْرُ‌وفًا ﴿8﴾

It means that distant relatives, orphans and the needy who are to be excluded from having a share in the inheritance and who, nevertheless, show up at the time of its distribution, then, it is the moral obligation of those who get a share in the inheritance that they voluntarily give them some of it, which would become an act of charity for them, and certainly, a modality of reward from Allah. At a time like this, when wealth and property are coming to them, without their having made any effort, simply through the mercy of Allah Almighty - then, their own hearts should beat with the urge to give whatever they can, in the way of Allah, an example of which appears in another verse (Al an'am: 6:141) cited below:

كُلُوا مِن ثَمَرِ‌هِ إِذَا أَثْمَرَ‌ وَآتُوا حَقَّهُ يَوْمَ حَصَادِهِ

That is, eat the fruit of your farm when it bears fruit and on the day of its harvesting give away the due (of the poor and the needy) on it.

In short, the fact that distant kindred, orphans and the needy assemble at the time of the distribution of inheritance should be no cause of irritation. On the contrary one should be grateful to Allah that He has bestowed on him something he did not work for, therefore, it will be good to give away a part from it as a token of gratitude. In fact, one should take it as a God-sent opportunity to let these people have a little from what they have received which would certainly compensate the sense of deprivation faced by these people. Incidentally, this includes and covers the grandson of the deceased who was excluded from the inheritance.

His uncles and paternal aunts should actually be pleased to give him something each from their respective shares.

The statement at the end of the verse (8): وَقُولُوا لَهُمْ قَوْلًا مَّعْرُ‌وفًا (and speak to them in fair words) gives the guideline in case these people are not satisfied with the manner and quantum of what they get but start demanding a share equal to that of everybody else, then, this demand being unjust and contrary to Shari'ah, there is no way to satisfy it, however, instead of behaving to them in a crude manner which may hurt their feelings, the actual rules-of Shari'ah should be explained to them in a polite manner. They can be told that they do not have a share in the inheritance as stipulated by the rule of Islamic law and that which has been given to them has been given to them as a gift. At this point, one should make sure that the gift or donation given to such people does not come out of the total property inherited. Here it is important that the donation should be made by adult inheritors present, from …

Fear Allah while distributing inheritance

The third verse (9) addresses Muslims in general exhorting them to make it certain that the inheritance of the deceased reaches his children fully and fairly. They must abstain from any mode of action which may affect the share of the children adversely. The general sense of the verse covers the eventuality when one sees a Muslim making a will or disposing property off in a manner which could cause damage or loss to his children and other inheritors. If so, one must stop him from such bequeathal or such disposal, very much like what the Holy Prophet ﷺ did when he stopped the blessed Companion, Sayyidna Sa'd ibn Abi Waqqas ؓ ، from giving the whole, or half, of his property in charity (Sadaqah), allowing him to give only one-third of his property as such (Mishkat, Bab al-Wasaya, p. 265), because, 'If the whole, or half of the property was given in charity, the share of the inheritors would have either been all consumed, or curtailed.

Also included in the general sense of the verse is that guardians of the orphaned children should protect their property and give it to them in full when they become mature. They should take pains to accomplish this mission of trust and never let the least negligence on their part affect their duty; if they wish that others treat their children well after them, without causing them any harm or injustice, then, they should treat the children of others - the orphans - in the same manner.

Misappropriation of the property of the orphans

The fourth verse (10) carries a severe warning for those who pilfer or dispose off the property of orphans unlawfully. It declares: 'Surely, those who eat up the property of the orphans unjustly, they only eat fire into their bellies, and soon they shall enter a blazing Hell.'

This verse equates the property of the orphan with the fire of Hell. Many commentators have interpreted this metaphorically, that is, eating the property of the orphans unjustly is like stuffing one's stomach with fire - because this is what is going to happen to him ultimately in the Hereafter. But, those with deeper insights and proofs do not support the presence of some figure of speech here. According to them, whatever is eaten up from the property of the orphan unlawfully is, in reality, nothing but fire - even though, it may not look like fire at that time. This is like somebody saying that the match-box in his hand was fire, or the piece of arsenic, a killer. Obviously, handling a match-box does not burn the hand, nor does arsenic kill a man by simple handling, not even by putting it in the mouth. However, a slight friction reveals that somebody who called the match-box a fire was right; and similarly, once the arsenic goes down the throat, we know that the one who called arsenic a killer was true. Common generalizations of the Holy Qur'an also support the view that whatever deeds, good or evil, man is doing, these very deeds are the trees, the flowers and the fruits of Paradise, or the embers of Hell - even though, their form here is different, but these will come forth on the Day of Doom transformed in their true forms. The Holy Qur'an says: وَوَجَدُوا مَا عَمِلُوا حَاضِرً‌ا (Kahf - 18:49)that is, on the Day of Doom, they shall find what they did - present! In other words, the punishment and the reward they shall see will be, in reality, the result of their own deeds.

It appears in some narrations that those who devour the orphan's property unjustly will be raised on the Day of Doom in a state that flames of fire will be seen coming out from inside their bellies through their mouths, nostrils, ears and eyes.

And the Holy Prophet ﷺ said that a set of people will be raised on the Day of Doom with their mouths erupting with fire. His noble Companions asked as to who these could be. He said: "Have you not read it in the Qur'an? (which says): إِنَّ الَّذِينَ يَأْكُلُونَ أَمْوَالَ الْيَتَامَىٰ ظُلْمًا (those who eat up the property of the orphans unjustly)." (Ibn Kathir, v.1, p. 456)

The gist of the meaning of the verse is that the property of the orphan eaten up unjustly will be, in reality, the fire of Hell, though it may not be sensed as fire at that time. It is for this reason that the Holy Prophet ﷺ has given very clear instructions to observe most stringent precaution in this matter. Sayyidna Abu Hurairah ؓ narrates that the Holy Prophet ﷺ said: اُحَرِّجُ مالَ الضَّیفین المرأۃ والیتیم (I warn you to abstain from the property of the two weak ones - the woman and the orphan.) (Ibn Kathir, v.1, p.456)

A review at this point shows that the entire first section of Surah al-Nisa' contains injunctions relating to …