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Fiqh of Marriage - 1

2018-02-23
February 23, 2018

 

 

THE DUAL SIGNIFICATION OF THE WORD NIKĀH

 

- The word “nikāh” is used in Arabic to denote sexual cohabitation. This is the meaning carried by it in His statement, Exalted is He:

 

﴿فَإِن طَلَّقَهَا فَلاَ تَحِلُّ لَهُۥ مِنۢ بَعْدُ حَتَّىٰ تَنكِحَ زَوْجًا غَيْرَهُ﴾

 

«But if a man divorces his wife a third time, she is not halāl for him until she has cohabited with (tankiha) another husband» [1].

 

The Bewleys translated the verb as “married”.  However, what is intended in the āyah is actual sexual cohabitation. Indeed, the mere event of the thrice divorced woman getting married to another husband without the accompanying factual consummation of the nuptials cannot, assuming the dissolution of such later union, render her once more lawful to the erstwhile husband.

The word “nikāh” is additionally employed to indicate the stipulation of a marriage contract. Such a use is widespread in the Qur’ān, and it is in fact the prevalent one for the said noun in the Book, as in the case of His statement, Exalted is He (otherwise there would be incongruence between a cohabitation and a divorce prior to any possible cohabitation):

 

﴿يَأَيُّهَا ٱلَّذِينَ ءَامَنُوٓا إِذَا نَكَحْتُمُ ٱلْمُؤْمِنَٰتِ ثُمَّ طَلَّقْتُمُوهُنَّ مِن قَبْلِ أَن تَمَسُّوهُنَّ﴾

 «You who have īmān, when you marry (nakahtum) believing women and then divorce them before you have touched them …» [2].

Linguistically, therefore, the word nikāh is literal in denoting sexual cohabitation and figurative in denoting the contracting of marriage. The latter metaphorical use is based on using the word for the “cause” in order to signify the “effect” of that cause = to contract a marriage is the causative agent of cohabiting sexually with a spouse.

From the view point of legal terminology, by contrast, nikāh is literal in denoting the marriage contract and metaphorical in denoting sexual cohabitation. The rhetorical figure is once again the recourse to of the cause to mean the effect thereof = because one wants to cohabit sexually with a spouse, he concludes in law a contract of marriage (Causal relationship).

A consequential result of the fact that nikāh, from this legal viewpoint, has only a metaphorical as opposed to a literal reality in relation to sexual intercourse, is that whoever commits zinā with a woman is not precluded from marrying that woman’s daughter or mother, since the sexual intercourse in the form of zinā is not named nikāh in the law according to the Mālikiyyah and the Shāfi`iyyah [We will observe the Hanafī’s discordant view on that].

 

In his famous commentary on Ibn Abi Zayd al-Qayrawānī’s Ar-Risālah , i.e. Al-Fawākih ad-Dawānī, an-Nafrāwī mentioned that the linguistic import of the word nikāh is entry or penetration, since one says in Arabic nakaha an-nawmu al-‘ayna (نكَح النومُ العين), meaning that sleep penetrated the eye, as well as nakahati’l-hasā akhfāfa’l-ibil (ننَحتِ الحصى أخفافَ الإبل) = pebbles got inside the camel’s hooves, and nakaha’l-badhru al-arda (نكَح البذرُ الأرض) = the seeds got inside the earth, that is, underground. 

 

The dictionary’s entry is nakaha yankihu nikāhan (نكَح ينكِح نِكاحا).

 

- As for its connotation in the technical nomenclature of the Law, nikāh is the contract between a man and a woman which has the effect of a) legalizing their reciprocal sexual enjoyment and b) giving rise to their respective rights and duties, for the purpose of preserving the human species.

 

In the school of Ahl al-Madīnah, the most renowned classical lexicon of juristic terms is Ibn ‘Arafah’s Hudūd, which was elucidated by his fellow Tunisian ar-Rassā`.

Ibn ‘Arafah defined marriage or nikāh as follows:

 

An-nikāhu ‘aqdun ‘alā mujarradi mut`ati at-taladhdhudhi bi-ādamiyyatin, ghayra mūjibin qīmatahā, bi-bayyinatin qablahu, ghayra ‘ālimin ‘āqiduhā hirmatahā in-harramahā al-Kitābu ‘ala’l-mashūri aw al-ijmā`u ‘ala’l-ākhar”:

 

Marriage is a contract for the sheer enjoyment of pleasurable gratification with a human female, which does not impose as an obligation the disbursement of the value of that female. The contract comes into being by virtue of an established proof antedating the said gratification, and necessitates that the man who contracts it is not aware of its prohibition if it has been proscribed by the Book, according to the famous position in the madhhab, or proscribed by the unanimity of scholarly consensus, being an interdicting source other than the Book, according to the other view in the madhhab”.

 

Ibn ‘Arafah thus rebutted the definition of marriage as supplied by another luminary of the Madinan scool, Ibn Bashīr (at-Tanūkhī, the author of At-Tanbīh ‘alā Mabādi’ at-Tawjīh [3]), who had made mention of “a contract for the sake of (legitimizing) the woman’s private parts in return for a consideration or ‘iwad”, a loose definition which is inter alia shared by some forms of zinā (Indeed, most forms of prostitution are exchanges of sexual gratification for a monetary quid pro quo).

 

As ar-Rassā` has clarified in his aforementioned commentary, Shaykh Ibn ‘Arafah specified, by utilizing the word ‘aqd, that marriage falls within the genus of contracts in so far as it entails a coming together of an offer and an acceptance from the two contracting parties, and in so far as it entails that each contracting party binds himself to abide by a matter.

By the prepositional phrase ‘alā mujarrad, he made it plain that the enjoyment intended by this contract is the enjoyment of gratification and nothing else, i.e. that is the locus of this contract which accordingly distinguishes it from contracts aimed at acquiring the corpus or usufruct of something (e.g. sale and lease), etc.

[We could have also translated the sentence as: Marriage is a contract for the very enjoyment of pleasurable gratification with a human female” or “nothing other than the enjoyment of pleasurable gratification with a human female”].

The word mut`ah or enjoyment is self-explicatory. The generic term “enjoyment” possesses a broader semantic range than the word gratification or taladhdhudh. That is so since enjoyment can be both abstract and sensorial, and its import is thus sufficiently dilated to encompass such matters as high-rank, political authority, riding exquisite means of transport, the intake of choice food and beverage, etc, whereas gratification is restricted to sensorial realities.

In his definition, therefore, Ibn ‘Arafah excluded, by his phrase ‘alā mujarrad, all forms of enjoyment that were unrelated to the root of marital enjoyment, in the same way that he excluded non-sensorial forms of enjoyment by his use of “taladhdhudh”. 

When he said “ghayra mūjibin qīmatahā”, he eliminated from the definitional compass the scenario of making cohabitation with a slave woman contractually lawful for oneself where a proof corroborating its lawfulness materializes. Such a man’s word is in fact accepted as veracious if he were to allege that he entered into a contract aimed at securing sheer gratification from a human female, provided a proof corroborating his allegation is established. Once that occurs with regard to a slave woman, however, he would have concluded a contract for the sake of gratification from a female that obligatorily necessitates his disbursement of the monetary value of that human female. Liquidation of the monetary value of the slave woman thus legalized becomes compulsory upon the actualization of his sexual gratification from her. That is different from what happens in marriage: No value of a wife has to be obligatorily paid as a result of cohabiting with her sexually.

Ibn ‘Arafah’s unqualified use of the word “enjoyment of gratification” tends to subsume the marriage of a eunuch and a person whose testicles have been castrated under the general definition. If somebody is in need of marriage, it is recommended for him to marry even if he lacks the required tool of sexual gratification (as is the case of eunuchs). Khalīl’s commentators concur on that fact.

Bi-bayyinah is a circumstantial phrase meaning that the existence of (legalized) gratification should be preceded by a corroborative proof, and thus the form of zinā, illicit sexual cohabitation, is removed from the definitional scope.

Ghayra ‘ālimin is another circumstantial phrase: He is the person who contracts the marriage while in a state of unawareness of its prohibition

a)     either by the Book alone, or

b)    more generally so, rather than exclusively by the primary source of the Law [The said description is therefore not extended to the person who necessarily knows that he cannot marry his sister or auntie, a fifth wife, someone else’s lawful spouse, a mushrikah, one’s thrice-divorced ex, etc.].

These two views are well-known positions in the madhhab, from which divergent rulings in a number of masā’il concerning marriage and zinā.

 

A few conclusive points:

- In Ahkām al-Qur’ān, Judge Abū Bakr b. al-‘Arabī noted that the root-meaning of nikāh was to join, bring (draw) together, unite etc.

In the etymological dictionary Mu`jam Maqāyīs al-Lughah, Ahmad b. Fāris stated that there was only one source-meaning to the trilateral Arabic root nūn-kāf-hā’, i.e. “sleeping with a woman” (al-bidā`).

 

Among the Shāfi`iyyah, ar-Ramlī defined nikāh as being, in the Law, “a contract which entails making sexual cohabitation lawful by using explicit words to that end (= inkāh and tazwīj)”.

As for the Hanafī an-Nasafī, he spoke of “a contract that has as its deliberate object ownership of (sexual) enjoyment”.

Not ownership of the corpus of the woman (unlike the scenario of slavery). It is therefore a case of owning a manfa`ah (# a raqabah).

 

***

 

As a result of the fact that the word nikāh in the law encompasses the meaning of sexual cohabitation only in a metaphorical sense, it is not prohibited, for both the Mālikiyyah and the Shāfi`iyyah, to contract a marriage with the daughter or mother of a woman one committed zinā with, since such unlawful cohabitation did not really signify any nikāh in the Law.

This ruling is a disputed issue among Muslim scholars.

 

In his superb commentary on Mālik’s Al-Muwatta’ titled Al-Istidhkār, the giant Córdovan polymath Ibn ‘Abdi’l-Barr said the following in support of the mainstream view of the said two schools:

“The jurists who legitimately issue fatāwā in the different Islamic regions  have reached consensus on the fact that a man who has committed zinā with a woman is not prohibited from marrying her once he has granted her the period to free herself of any suspicion of pregnancy. That being the unanimously agreed on scenario, it is a fortiori legitimate for him to marry her mother or daughter, and Allah is the grantor of success.”

In his juristic text Al-Kāfī fī Fiqh Ahl al-Madīnah al-Mālikī, he said:

“If one commits zinā with a woman, and then resolves on marrying her mother or daughter, neither the union with the woman’s mother, nor the one with her daughter, is forbidden to him. This is the sound position based on the statement of Mālik, and it is the asseveration of the erudite people of the Hijāz generally. A different narration related from Mālik affirms that the act of zinā interdicts him from marrying the woman’s mother or daughter, for zinā is treated in that case analogously to a lawful sexual intercourse. The gist of this alternative narration coincides with the view propounded by the scholarly people of the ‘Irāq [and thus by the Hanafiyyah]. The first-mentioned ruling is the sounder of the two, and it is the one acted upon by the jurists of Ahl al-Madīnah, due to the statement of Allah the Exalted, «and your wives’ mothers (wa-ummahātu nisā’ikum)» [Sūrah an-Nisā’: 23], and the undisputed fact that the one whom he committed zinā with is not one of his wives (nisā’ihim) nor is she one of his stepdaughters”.

 

The position enunciated by Ibn ‘Abdi’l-Barr has also been subscribed to by Ibn Taymiyyah and Ibn Hazm, over and above the fact that it constitutes the dominant position of the Mālikiyyah and the Shāfi`iyyah as stressed above.

The contrary view, to the effect that either such union is prohibited for him, is the madhhab of the Hanafiyyah and of the Hanābilah, apart from being a view narrated from Imam Mālik as mentioned in Averroes’ Bidāyah al-Mujtahid (and in Ibn ‘Abdi’l-Barr’s aforesaid work that predated it).

 

The proponents of the former view have relied on the under-mentioned evidence:

 

a)     His statement, Exalted is He, spanning āyah 23 and āyah 24 of Sūrah an-Nisā’ (from hurrimat to musāfihīn). The basis for using it as a corroborative evidence is the fact that Allah, may He be Exalted, mentioned in this pair of Signs the women one cannot legally marry, and, after enumerating them, He legalized for His slaves all women falling outside those demarcated categories. Within the prohibited class, one comes across no reference to the daughter or mother of a woman one has committed zinā with. That circumstance is a pointer to the licit nature of both females in relation to the male perpetrator of zinā [4];

b)    The hadīth transmitted on the authority of ‘Āishah, may Allah be well pleased with her, to the effect that she said: The Messenger of Allah, Sallallāhu ‘alayhi wa-Sallam, was asked about the man who follows the perpetration of the harām with a woman by marrying such a woman’s daughter, or follows the perpetration of the harām with a woman’s daughter by subsequently contracting a marriage with her mother. The Messenger of Allah, Sallallāhu ‘alayhi wa-Sallam, said in reply: “The harām does not forbid the halāl. It only makes what originated from a lawful marriage unlawful” [Reported by al-Bayhaqī in As-Sunan al-Kubrā, and by ad-Dāraqutnī in his Sunan. Meaning-wise, it is also found, transmitted on the authority of ‘Abdullāh b. ‘Umar, in the selfsame two collections, as well as in Ibn Mājah’s own Sunan];

c)     The male perpetrator of zinā is not forbidden from marrying the one he did zinā with on the aforesaid condition of istribrā’, and is thus entitled with even greater force to marry the woman’s mother or daughter, being someone he did not commit zinā with.

 

The advocates of the counter-view have sought to lean on the following evidence:

 

I)                  Ibn Mas`ūd’s statement, radiyallāhu ‘anhu: “Allah does not look at the man who looked at the private parts of a woman or her daughter” [Reported by ad-Dāraqutnī in his Sunan]. They use the indicia found therein as denoting the fact that the mere look at the private parts of a woman or her mother is forbidden, so the marriage subsequent to zinā is a fortiori subject to interdiction [5];

II)               Proscribing marriage with the mother or the daughter of someone with whom the man has committed zinā entails precautionary safeguarding of private parts and a way to exit any possible conflict, which is something recommended.

 

Even a cursory glance at the qualitative weight of the two views suffices to tilt the balancing scales of an informed observer’s juristic preference firmly to the former view: Its corroborating proofs are powerful and transpicuous in their clarity, the ruling rests on an explicit textual source, and the counter-arguments of its opponents can easily be rebutted:

Ibn Mas`ūd’s statement is by no means explicit in indicating what the jurists using it for, as alleged corroboration, says it means, since it might well be applicable to a valid marriage; it stops at a Sahābī without being ascribed to the Prophet, Sallallāhu ‘alayhi wa-Sallam; and contradicts what is found in indicators of superior probative value, such as, among others, the āyah of Sūrah an-Nisā’ relied upon by those who legalize such a marriage. Consideration, in the fiqh, is paid to the stronger probative indicia; The transmission chain of what is reported from Ibn Mas`ūd contains two weak narrators, being Hammād b. Abi Sulaymān b. Muslim al-Ash`arī, Abū Ismā`īl, and Layth b. Abi Sulaym b. Zunaym al-Qurashī [6]; Their statement that to veto such a marriage is a safer precaution for the sake of protecting private parts has to yield to the general jurisprudential principle that any such extra precaution can be acted upon only so long as it does not run counter to an outwardly clear proof directly impinging on the mas’alah. In our case, there is an outwardly patent proof of the lawfulness, to the zānī, of the mother and daughter of a woman with whom zinā has been committed, which is represented by the aforementioned āyah of the Qur’ān (in Sūrah an-Nisā’). Moreover, while discouragement of illicit intercourse is a praiseworthy attitude, closing the door to a subsequent legitimization thereof encourages perpetrators of zinā to cling to it and instils in them despair of Allah’s Mercy.

It is of course perfectly legitimate, for an adherent to the Hanafī school or to the Hanbalī one, to stick to the ruling selected by it.

 

Ultimately, the motivational genesis of this divergence of opinions lies in the tendency of assimilating zinā, rank-wise, to a valid marriage in respect of the legal traces ensuing from it.

Those who, therefore, contemplate the pair of them, valid marriage and zinā, from the general linguistic viewpoint that unifies the two phenomena, subsume zinā under the same category as valid marriages in this regard. Such a jurist then maintains that the mother or daughter of the woman one perpetrates zinā with is harām for the man in exactly the same way as his mother-in-law or stepdaughter would be had intercourse pursuant to a valid marriage occurred.

Those who, by contrast, look at the matter from the standpoint of what the Law, not linguistic usage, assigns to the two distinct meanings, restricts the proscription to the intercourse emanating from a valid marriage (nikāh as understood legally), to the exclusion of the intercourse relating to a context of zinā.

The one group views any such marriage contract as irregular or fāsid (literally, corrupt), and the other one as valid or sahīh, literally, sound.

 



[1] Sūrah al-Baqarah: 228.

[2] Sūrah al-Ahzāb: 49.

[3] Dār Ibn Hazm in Beirut has published the section of the book on the ‘ibādāt, edited by Dr. Muhammad Belhassān, in 2007 (1000 pages). Ibn Bashīr was from al-Mahdiyyah. His teachers included the who’s who of Mālikī genius in his age: As-Sayūrī, Abu’l-Hasan al-Lakhmī (who was said to be related to him: on his mother’s side? as an in-law?), al-Māzarī and Ibn Rushd the Grandfather. The edited portion includes ritual purity, prayer, fasting and zakāt (without the hajj).

[4] Cf. Ibn Hazm’s Al-Muhallā and Al-Fayrūz Abādī’s Al-Muhadhdhab (which An-Nawawī commented upon in his Al-Majmū`).

[5] Cf. Al-Kāsānī’s Badā’i` as-Sanā’i`, and Ibn Qudāmah’s Al-Muqni`.

[6] Cf. Ibn Hajar’s Tahdhīb at-Tahdhīb and Taqrīb at-Tahdhīb

 



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