Sunday, September 16, 2012

-346- Tafseer Surah Ahzab (Part 7)

TAFSEER SURAH AHZAB (49-52)
MARRIAGE TO YOUR 1ST COUSIN IS ALLOWED IN ISLAM
by Shaikh Abdullah Faisal

06.20.2012 (Evening Dars)


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NOTES typed LIVE by AT7 and AT38
Edited and Formatted by AT-7 and AT5

Bismillah…


AYAH 49

يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا نَكَحْتُمُ الْمُؤْمِنَاتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِنْ قَبْلِ أَنْ تَمَسُّوهُنَّ فَمَا لَكُمْ عَلَيْهِنَّ مِنْ عِدَّةٍ تَعْتَدُّونَهَا فَمَتِّعُوهُنَّ وَسَرِّحُوهُنَّ سَرَاحًا جَمِيلًا

O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no 'Iddah [divorce prescribed period, see (V.65:4)] have you to count in respect of them. So give them a present, and set them free i.e. divorce, in a handsome manner. (Al-Ahzab 33:49)

This ayah is fiqh
- Islamic jurisprudence
- and it is by way of it that we arrive at the Shariah
- it is the springboard we use to get the Shariah
- fiqh has usulul fiqh
- and this means weighing the evidence

It tells you what the prophet (SAW) meant by a statement
-whether Sunnah or fard

Allah said in the above ayah that if you marry a woman
- and divorce her before consummating it
- there is no iddah for her
- and there are various types of iddah in Shariah

1. IF A MAN DIVORCES A WOMAN WHO MENSTRUATES, HER IDDAH IS 3 MONTHS

Narrated Abdullah ibn Abbas: Divorced women shall wait concerning themselves for three monthly periods. Nor is it lawful for them to hide what Allah hath created in their wombs. This means that if a man divorced his wife he had the right to take her back in marriage though he had divorced her by three pronouncements. This was then repealed (by a Qur'anic verse). Divorce is only permissible twice. [Sunan Abu Dawud (Vol. 1, pg. 666) No. 2195]

2. IF SHE HAS REACHED MENOPAUSE, HER IDDAH IS 3 MONTHS

3. IF SHE IS BENEATH PUBERTY IDDAH IS 3 MONTHS

4. IF A MAN IS DIVORCED BY WAY OF KHULAH, IDDAH IS ONE MENSTRUATION

Ibn Abbas (RA) narrated that in the times of the Prophet the wife of Thabit ibn Qays sought separation from him (her husband). So, the Prophet (SAW) commanded her to observe iddah (waiting period) till she got her menstruation. [Sunan at-Tirmidhi (Vol.3, pg. 491) No. 1185; Sunan Abu Dawud (Vol. 1, pg. 677) No. 2229 and Sunan An-Nasa'i (Vol. 6, pg. 169) No. 3462]


5. IF A WOMAN WAS DIVORCED AND THE MARRIAGE WAS NOT CONSUMATED THERE IS NO IDDAH

Ibn Qudaamah (rh) said: 'The scholars are unanimously agreed that a woman with whom the marriage has not been consummated is irrevocably divorced with one talaaq, and the one who divorced her is not entitled to take her back. That is because taking back can only occur during the ‘iddah, and there is no ‘iddah before consummation, because Allah, may He be exalted, says (interpretation of the meaning): “O you who believe! When you marry believing women, and then divorce them before you have sexual intercourse with them, no ‘Iddah (divorce prescribed period, see) have you to count in respect of them” [al-Ahzaab 33:40].' [al-Mughni (7/515)]


- but Allah recommends that you give her a gift
- if the dowry was set you can give her half of it

Allah said set them free in a handsome manner
- because when people are divorced they say worse things about each other
- they divorce with hatred, acrimony and go on an assassination campaign

There is no iddah for women who did not consummate their marriage
- what about a woman who became a widow before she consummated the marriage?
- her iddah is 4 months 10 days, there is no exception for her

And if you divorce them before you have touched (had a sexual relation with) them, and you have appointed unto them the Mahr (bridal money given by the husbands to his wife at the time of marriage), then pay half of that (Mahr), unless they (the women) agree to forego it, or he (the husband), in whose hands is the marriage tie, agrees to forego and give her full appointed Mahr. And to forego and give (her the full Mahr) is nearer to At-Taqwa (piety, righteousness, etc.). And do not forget liberality between yourselves. Truly, Allāh is All-Seer of what you do. (Al-Baqarah 2:237)


Allah spoke about divorce, mahr and iddah in 2:237
- with regards divorcing a woman before consummating
- you give half the dowry agreed upon

Another is surah 65:4

And those of your women as have passed the age of monthly courses, for them the 'Iddah (prescribed period), if you have doubts (about their periods), is three months, and for those who have no courses [(i.e. they are still immature) their 'Iddah (prescribed period) is three months likewise, except in case of death]. And for those who are pregnant (whether they are divorced or their husbands are dead), their 'Iddah (prescribed period) is until they deliver (their burdens), and whosoever fears Allāh and keeps his duty to Him, He will make his matter easy for him. (At-Talaq 65:4)

- those who are pregnant, their iddah is until they deliver
- because of this ayat, many scholars believe that you can divorce your wife
- when she is pregnant
- others say otherwise but that is a mistake

You divorce a woman by saying 'I divorce you' (anti taaliq) in Arabic
- it is haram to divorce her when she is menstruating
- this is haram even though it is counted as one divorce

Narrated Abdullah ibn Abbas: Tawus said: Abu Sahba' said to Ibn Abbas: Do you know that a divorce by three pronouncements was made a single one during the time of the Prophet (SAW), and of Abu Bakr and in the early days of the caliphate of Umar? He replied: Yes. [Sunan Abu Dawud (Vol. 1, pg. 669) No. 2200]

- only one divorce should be pronounced
- you should not pronounce all three in one sitting
- however Umar and Aisha (RA) count this as 3 divorces

If a man says to his wife "I don't want you, get lost'
- the Qaadi will have to ask him what he meant
- he has to say whether he meant a divorce or not
- because these words are ambiguous

If a man tells his wife 'if you leave the house I’ll divorce you'
- he has to be asked whether he was threatening her or not
- if he was drunk it is counted as one divorce

After the divorce she goes to the iddah period
- but you can take her back by having intercourse with her
- or you take her back verbally
- you should not take her during the iddah if you have no intention to stay with her for good
- if you take her back for pleasure alone this is haram

Amr ibn Shu’ayb reported from his father, from his grandfather that Allah’s Messenger (SAW) said, “The son of Adam may make no vow about what he does not possess, and he need not set free what he does not possess, and he may not divorce what he does not possess.” [Sunan Tirmidhi (3/478) No. 1181, Musnad Ahmad (2/212) No. 6990, Sunan Abu Dawud (2/258) No. 2190, Sunan Ibn Majah (3/202) No. 2047]

A woman was presented for marriage to the rasul (SAW)
- it was claimed that she was the most beautiful woman in Arabia
- her name was Umayma bint Sharahil
- her arrival cause panic among the wives
- someone told her to say 'a’ audhu billahi min ka' to the prophet (SAW)
- she did that and the rasul sent her back, for this meant that he was evil
- he later found out from super natural means
- that Aisha was the one that stitched her up
- the rasul didn't send her back empty handed
- he gave her a gift (a piece of cloth)

Narrated Abu Usaid: We went out with the Prophet to a garden called Ash-Shaut till we reached two walls between which we sat down. The Prophet said, "Sit here," and went in (the garden). The Jauniyya (a lady from Bani Jaun) had been brought and lodged in a house in a date-palm garden in the home of Umaima bint An-Nu'man bin Sharahil, and her wet nurse was with her. When the Prophet entered upon her, he said to her, "Give me yourself." She said, "Can a princess give herself in marriage to an ordinary man?" The Prophet raised his hand to pat her so that she might become tranquil. She said, "I seek refuge with Allah from you." He said, "You have sought refuge with One Who gives refuge. Then the Prophet came out to us and said, "O Abu Usaid! Give her two white linen dresses to wear and let her go back to her family." Narrated Sahl and Abu Usaid: The Prophet married Umaima bint Sharahil, and when she was brought to him, he stretched his hand towards her. It seemed that she disliked that, whereupon the Prophet ordered Abu Usaid to prepare her and to provide her with two white linen dresses.” [Sahih Bukhari (7/41) No. 5255]

- Allah said:

There is no sin on you, if you divorce women while yet you have not touched (had sexual relation with) them, nor appointed unto them their Mahr (bridal money given by the husband to his wife at the time of marriage). But bestow on them ( a suitable gift), the rich according to his means, and the poor according to his means, a gift of reasonable amount is a duty on the doers of good. (Al-Baqarah 2:236)


AYAH 50

يَا أَيُّهَا النَّبِيُّ إِنَّا أَحْلَلْنَا لَكَ أَزْوَاجَكَ اللَّاتِي آتَيْتَ أُجُورَهُنَّ وَمَا مَلَكَتْ يَمِينُكَ مِمَّا أَفَاءَ اللَّهُ عَلَيْكَ وَبَنَاتِ عَمِّكَ وَبَنَاتِ عَمَّاتِكَ وَبَنَاتِ خَالِكَ وَبَنَاتِ خَالَاتِكَ اللَّاتِي هَاجَرْنَ مَعَكَ وَامْرَأَةً مُؤْمِنَةً إِنْ وَهَبَتْ نَفْسَهَا لِلنَّبِيِّ إِنْ أَرَادَ النَّبِيُّ أَنْ يَسْتَنْكِحَهَا خَالِصَةً لَكَ مِنْ دُونِ الْمُؤْمِنِينَ قَدْ عَلِمْنَا مَا فَرَضْنَا عَلَيْهِمْ فِي أَزْوَاجِهِمْ وَمَا مَلَكَتْ أَيْمَانُهُمْ لِكَيْلَا يَكُونَ عَلَيْكَ حَرَجٌ وَكَانَ اللَّهُ غَفُورًا رَحِيمًا

O Prophet (Muhammad SAW)! Verily, We have made lawful to you your wives, to whom you have paid their Mahr (bridal money given by the husband to his wife at the time of marriage), and those (captives or slaves) whom your right hand possesses - whom Allāh has given to you, and the daughters of your 'Amm (paternal uncles) and the daughters of your 'Ammah (paternal aunts) and the daughters of your Khāl (maternal uncles) and the daughters of your Khālah (maternal aunts) who migrated (from Makkah) with you, and a believing woman if she offers herself to the Prophet, and the Prophet wishes to marry her; a privilege for you only, not for the (rest of) the believers. Indeed We know what We have enjoined upon them about their wives and those (captives or slaves) whom their right hands possess, - in order that there should be no difficulty on you. And Allāh is Ever Oft­ Forgiving, Most Merciful. (Al-Ahzab 33:50)

WHAT WAS THE DOWRY FOR THE PROPHET’S WIVES?
- the dowry was 500 dirhams
- as for umm Habiba her dowry was 400 dirham and it was paid by the Negus of Ethiopia
- for Safiyya bint huyay her dowry was her ransom to set her free
- Juwayriyah had the same dowry as Safiyya
- the dowry of Khadija (RA) was 20 camels

Abu Ajfa reported that Umar ibn Khattab (RA) said, “Do not exaggerate in giving women their dowry, for, if that was honourable in this world and righteous in the sight of Allah then the most worthy of you to give it would have been the Prophet of Allah I do not know that Allah’s Messenger (SAW) married any of his wives or gave any of his daughters in marriage for more than twelve ooqiyas (five hundred dirhams).” [Sunan Tirmidhi (3/414) No. 1114, Sunan Abu Dawud (2/235) No. 2106, Sunan al-Nasa'i (6/117) No. 3349, Sunan Ibn Majah (3/83) No. 1887]

Allah told the rasul that he can marry his first cousins
- this shows that it is halal
- Christians make this haram
- but the Jews marry their niece
- we are in the middle
- we don’t marry our niece but we marry our first cousins
- so you are not allowed to frown upon marrying your first cousin

Even though it is halal to marry your first cousins
- it is not recommended
- people who gravitate towards it are mostly tribalists

This ayah (33:50) has many fiqh


4 PILLARS OF MARRIAGE

1. MAHR (DOWRY)

- the marriage is not valid without a dowry
- unless the girl let go of the dowry
- the man should give the dowry, not the woman, this is Hinduism

Sahl ibn Sad Saidi (RA) reported that a woman came to Allah’s Messenger (SAW) and said, “I submit myself to you.” Then, she stood for a long time. A man said, “O Messenger of Allah, marry me to her, if you do not need her.” He said, “Do you have anything to give her (by way of dower)?’ He said, “I have nothing but this lower wrapper of the body.” So, Allah’s Messenger (SAW) said, “If you give it to her then you will sit and have no lower garment on you. So, Look out for something else.” He said, “I do not find.” The Prophet (SAW) said, “Search, even if you find an iron ring.” He said, “I sought but could not find anything.” So, Allah’s Messenger asked him, “Do you have with you anything of the Qur’an?” He said, “Yes, That surah, and that surah.” So Allah’s Messenger (SAW) said, “I marry you, to her with what you have of the Qur’an.” [Sahih Bukhari (6/192) No. 5029, Sahih Muslim (2/1040) No. 1425, Sunan Tirmidhi (3/421) No. 1114, Musnad Ahmad (5/330) No. 22850, Sunan An-Nasa'i (6/113) No. 3339]

2. TWO WITNESSES

Aisha narrated the Prophet (SAW) said: “There is no marriage except with a wali and two witnesses of good character.” [al-Sunan al-Kubra al-Bayhaqi (7/202) No. 13719, al-Mu'jam al-Awsat al-Tabarani (9/117) No. 9291, Sahih Ibn Hibban (9/386) No. 4075, Sunan al-Daraqutni (4/324) No. 3534]

3. WALI (GUARDIAN)

Abu Musa (RA) reported that Allah’s Messenger (SAW) said: “There is no marriage without a wali.” [Sunan Tirmidhi (3/399) No. 1101, Musnad Ahmad (4/394) No. 19536, Sunan Abu Dawud (2/229) No. 2085, Sunan al-Darime (2/184) No. 2182, Sunan Ibn Majah (3/79) No. 1881]

Aisha reported that Allah’s Messenger (SAW) said, “Any woman who gets married without the permission of her guardian, her marriage is invalid, her marriage is invalid, her marriage is invalid. But if the marriage is consummated then the mahr is hers because she has allowed him to be intimate with her. If they dispute, then the ruler is the guardian of the one who has no guardian.” [Sunan Tirmidhi (3/399-400) No. 1102, Musnad Ahmad (6/47) No. 24251, Sunan Abu Dawud (2/229) No. 2083, Sunan Ibn Majah (3/77) No. 1879]

4. QABOOL (ACCEPTANCE)
- therefore it should not be a forced marriage

O you who believe! You are forbidden to inherit women against their will,… (An-Nisa 4:19)

Abu Huraira (RA) reported that the Messenger of Allah (SAW) said, “No previously-married woman (widow or divorcee) may be married until she has been asked about her wishes (i.e., she should state clearly her wishes), and no virgin should be married until her permission has been asked (i.e., until she has agreed either in words or by remaining silent).” They asked, “O Messenger of Allaah, how is her permission given (because she will feel very shy)?” He said: “By her silence.” [al-Bukhari (5136) and Muslim (1419)]

Right hand possess are the women captured after a battle
- or who were bought from the market
- these women are halal for you
- you don’t have to marry them
- the modernists say otherwise
- so don’t take your deen from them!
- how can you tell a Muslim to marry his right hand possess?
- when Allah gave you the permission (see 23:5-7)

And those who guard their chastity (i.e. private parts, from illegal sexual acts) (Al-Mu'minun 23:5)

Except from their wives or (the captives and slaves) that their right hands possess, for then, they are free from blame; (Al-Mu'minun 23:6)

But whoever seeks beyond that, then those are the transgressors; (Al-Mu'minun 23:7)

You are allowed to sell your right hand possess
- but you can’t do so if she is pregnant
- a sahabi had to do withdrawal in fear of getting her pregnant
- this is why some scholars say birth control is halal

If a woman said to the rasul (SAW) ‘I give you myself in marriage’
- he can accept and not give dowry
- the dowry is lifted for him because she presented herself
- but this privilege is only for the rasul (SAW)
- any other person has to pay the dowry
- even though the woman was the one who proposed

In the time of the rasul Barwa bint Washiq proposed to her man
- and he accepted but he had to pay the dowry
- Khawla bint hakim came out of the desert and presented herself to the rasul
- but he didn't accept her proposal

Sahl ibn Sad Saidi (RA) reported that a woman came to Allah’s Messenger (SAW) and said, “I submit myself to you”. Then, she stood for a long time. A man said, “O Messenger of Allah, marry me to her, if you do not need her”. He said, “Do you have anything to give her (by way of dower)?’ He said, “I have nothing but this lower wrapper of the body”. So, Allah’s Messenger (SAW) said, “If you give it to her then you will sit and have no lower garment on you. So, Look out for something else”. He said, “I do not find”. The Prophet (SAW) said, “Search, even if you find an iron ring”. He said, “I sought but could not find anything”. So, Allah’s Messenger asked him, “Do you have with you anything of the Qur’an?” He said, “Yes, That surah, and that surah. So Allah’s Messenger (SAW) said, “I marry you, to her with what you have of the Qur’an”. [Sahih Bukhari (6/192) No. 5029, Sahih Muslim (2/1040) No. 1425, Sunan Tirmidhi (3/421) 1114, Musnad Ahmad (5/330) No. 22850, Sunan An-Nasa'i (6/123) No. 3359]

- another sahabi then asked for her hand
- base on this hadith it is acceptable to charge for teaching the Quran


AYAH 51

تُرْجِي مَنْ تَشَاءُ مِنْهُنَّ وَتُؤْوِي إِلَيْكَ مَنْ تَشَاءُ وَمَنِ ابْتَغَيْتَ مِمَّنْ عَزَلْتَ فَلَا جُنَاحَ عَلَيْكَ ذَلِكَ أَدْنَى أَنْ تَقَرَّ أَعْيُنُهُنَّ وَلَا يَحْزَنَّ وَيَرْضَيْنَ بِمَا آتَيْتَهُنَّ كُلُّهُنَّ وَاللَّهُ يَعْلَمُ مَا فِي قُلُوبِكُمْ وَكَانَ اللَّهُ عَلِيمًا حَلِيمًا

You (O Muhammad SAW) can postpone (the turn of) whom you will of them (your wives), and you may receive whom you will. And whomsoever you desire of those whom you have set aside (her turn temporarily), it is no sin on you (to receive her again), that is better; that they may be comforted and not grieved, and may all be pleased with what you give them. Allāh knows what is in your hearts. And Allāh is Ever All­ Knowing, Most Forbearing. (Al-Ahzab 33:51)

This means that if you reject a proposal now
- you can accept later to comfort her


AYAH 52

لَا يَحِلُّ لَكَ النِّسَاءُ مِنْ بَعْدُ وَلَا أَنْ تَبَدَّلَ بِهِنَّ مِنْ أَزْوَاجٍ وَلَوْ أَعْجَبَكَ حُسْنُهُنَّ إِلَّا مَا مَلَكَتْ يَمِينُكَ وَكَانَ اللَّهُ عَلَى كُلِّ شَيْءٍ رَقِيبًا

It is not lawful for you (to marry other) women after this, nor to change them for other wives even though their beauty attracts you, except those (captives or slaves) whom your right hand possesses. And Allāh is Ever a Watcher over all things (Al-Ahzab 33:52)

You should not pressure a man about material
- his wives were given the choice to either go after the dunya or stay with him
- they chose him and Allah told him not to marry anyone after this
- even though the other might be beautiful and impress him

Narrated By 'Aisha: (The wife of the Prophet) when Allah's Apostle was ordered to give option to his wives, he started with me, saying, "I am going to mention to you something, but you shall not hasten (to give your reply) unless you consult your parents." The Prophet knew that my parents would not order me to leave him. Then he said, "Allah says: 'O Prophet (Muhammad)! Say to your wives: If you desire the life of this world and its glitter... a great reward." (33.28-29) I said, "Then why I consult my parents? Verily, I seek Allah, His Apostle and the Home of the Hereafter." Then all the other wives of the Prophet did the same as I did. [al-Bukhari (4786) and Muslim (1475)]