Tafsir of An-Nur 24:9

"And the fifth" is in the accusative case (nasb), acting as a coordinate to "four testimonies." His saying, "if he was of the truthful," pertains to what he accused her of regarding adultery, with the omission of a preposition—meaning, "that the wrath of Allah be upon her if he was of the truthful [in what he accused her of]." It is permissible that "that" (anna) and what follows it be considered a substitute (badal) for the "fifth." The specification of the "wrath" on the woman’s side is for the purpose of intensified condemnation (taghliz) against her, because she is the source of the depravity (fujur), and because women often employ cursing; thus, they might become emboldened to utter it due to its diminished weight upon their hearts, unlike the wrath of the Majestic One, may His Majesty be glorified.

Talhah, al-Sulami, al-Hasan, al-A'mash, and Khalid ibn Iyas recited "the fifth" in both instances with the accusative case (nasb). You have already learned the rationale for the accusative in the second instance. As for the first instance, the accusative is a coordination of "the fifth" to "four testimonies" based on the reading of those who recite "four" in the accusative case, treating it as the object of an omitted verb indicated by the meaning, or—according to the reading of those who recite "four" in the nominative—it implies, "And she bears witness to the fifth." The discussion regarding "that the curse" follows the same logic as that regarding "that the wrath."

Nafi' recited "that the curse" with the lightening of anna (an) and the nominative case for "curse," and "that the wrath" with the lightening of anna (an), with "wrath" being a past-tense verb, and the Majestic Name (Allah) following it in the nominative. In both instances, an is the lightened form of the heavy anna, and its subject is the "pronoun of state" (dhamir al-sha'n). No separators like qad or sin were inserted, nor was anything placed between it and the verb in the second instance, because the verb carries the sense of supplication. Thus, there is nothing analogous to His saying, "that [He] was blessed, whoever is in the fire." Therefore, there is no oddity in this reading, contrary to what is implied by the words of Ibn 'Atiyyah.

Al-Hasan, Abu Raja', Qatadah, 'Isa, Salam, 'Amr ibn Maymun, al-A'raj, and Ya'qub (with a difference regarding him) recited "that the curse" like the reading of Nafi', and "that the wrath" with the lightening of an, and "wrath" as an infinitive (masdar) in the nominative.

Furthermore, the apparent meaning of His saying, "And those who accuse their wives," denotes generality. However, it is stated in the books of our scholars (al-ashab) that it is a condition for both the accuser (qadhif) and his wife whom he has accused that they possess the eligibility to provide testimony in a Muslim court. Therefore, the process of Li'an (mutual cursing) does not take place between non-Muslims or enslaved persons, nor if one of them is an enslaved person, a child, insane, or has been previously punished for false accusation (qadhf). It is also a condition that the wife be chaste, unblemished by adultery—meaning she has never been touched unlawfully, whether through suspicion or an invalid marriage—and that she does not have a child of known lineage in the land of the accusation.

The requirement of this condition is because Li'an stands in place of the hadd punishment for qadhf regarding the husband, as indicated by the tradition we mentioned earlier. However, this is relative to each wife individually, not absolutely. Do you not see that if a man accuses four of his wives of adultery with one word or four separate words, one Li'an for all of them is not sufficient? Rather, he must perform Li'an with each one. If he accused four unrelated women, he would be punished with one hadd for all of them. Thus, whenever the wife is not of the category whose accuser would be punished—such as if she is not chaste—the conditions for the hadd that Li'an replaces are not met.

As for the requirement that both be eligible to provide testimony, it is because Li'an consists of testimonies confirmed by oaths, according to us (the Hanafi school), contrary to Ash-Shafi'i, who holds that they are confirmed oaths. This is the apparent view of Malik and Ahmad. Therefore, it may be performed by anyone eligible to take an oath—and since he is one who possesses the right to divorce, anyone who possesses such power is eligible for Li'an in his view. Thus, it occurs from every sane husband, even if he is an unbeliever or a slave.

The argument that Li'an consists of confirmed oaths is based on His saying, the Exalted, "the testimony of one of them shall be four testimonies by Allah." The phrase "by Allah" is decisive in forming an oath, while "testimony" is susceptible to being an oath. Do you not see that he says, "I testify," intending by it an oath? Thus, it is an oath, and the ambiguous is interpreted by the decisive, because interpreting it in its literal sense is impossible. It is the known custom in the Shari'ah that a person’s testimony for himself is not accepted, unlike his oath. Similarly, it is custom in the Shari'ah that testimony is not repeated in a single case, unlike an oath, for its repetition is known in Qasamah (oath-taking in homicide cases). Furthermore, testimony is intended for proof, while an oath is for negation; therefore, their literal meanings cannot be attached to the same matter. It is thus necessary to act upon the literal meaning of one and the metaphorical meaning of the other. Let the metaphor be the word "testimony," for the reasons mentioned by those who affirm this.

Our scholars argued that these are testimonies confirmed by oaths based on the same verse, because interpreting words in their literal sense is mandatory when possible. His saying, "and they have no witnesses except themselves," proves that they are witnesses, because an exception from a negation is an affirmation. To treat "witnesses" as a metaphor for "swearers" would mean the sense is, "and they have no swearers except themselves." This is not sound, as it suggests that if those who accuse their wives have no one to swear for them, they swear for themselves—but this is a subsidiary issue, assuming a person can swear on behalf of another, which has no foundation. If the meaning of an oath were literal for the word "testimony," this would be a factor shifting it toward its metaphorical sense. How could this be, when it is the metaphorical sense itself? If this were not so, the possibility of acting upon the literal meaning would necessitate not resorting to the oath.

As for what was imagined as a factor—that a person’s testimony for himself and the repetition of performance are unknown—we say: Both swearing for another and swearing in the absence of a judge’s ruling are indeed unknown. Rather, the oath is for lifting a judgment. If the legality of these two matters in a specific case can be established from the outset, then the legality of this can also be established from the outset. In fact, it is closer to reason that the plurality of four is a substitute for the inability to provide the four witnesses required for adultery. The acceptance of testimony for oneself is barred when there is suspicion, and thus it is most firmly established when there is no suspicion. Allah, the Almighty, said, "Allah bears witness that there is no god but Him." Thus, it is not far-fetched for it to be legislated when weak, by way of confirmation through an oath, and binding the curse and wrath if he is a liar, even without the consequence of the hadd being applied to both witnesses. The consequence of each testimony is not the establishment of the hadd on the other; rather, the consequence established by the two testimonies is what is established by the oaths: the repelling of each party's claim against the other. It is said "by them" (the two testimonies) and not "of them" because this repelling is not the effect of the testimonies, but the effect of their mutual contradiction.

As for his saying, "and an oath is for negation," this applies when it occurs in the denial of a claimant's assertion; otherwise, one may swear to report a matter of negation or affirmation. Here, it is the same: it is to his truthfulness in the testimony. The truth is that it is regarding what the testimony was for—that he is of the truthful in what he accused her of. This is like one who combines oaths regarding a single matter he is reporting; this is the reality of it being a confirmation of the testimony, for if their objects differed, one would not be a confirmation of the other.

An objection was raised regarding the requirement of eligibility to provide testimony: they said that Li'an occurs between the blind and the immoral, even though they lack eligibility. This was refuted by stating that they are eligible to "perform" testimony, but it is not accepted due to immorality or the blind man’s inability to distinguish between the one testified for and against. Here, however, he is capable of distinguishing between himself and his wife, so he is eligible for this testimony and not others. Ibn al-Mubarak narrated from Abu Hanifah that the blind man does not perform Li'an. Al-Quhistani generalized the eligibility, saying: "Even if by the judge’s decree." The testimony of an immoral person is valid in judgment, as is that of a blind man according to the opinion of its validity in matters proven by reputation, such as death, marriage, and lineage. This is unlike the one punished for qadhf, whose testimony is not valid in judgment. Perhaps Ibn Kamal Pasha meant by his statement, "If he judges by the testimony of the one punished for qadhf, it is executed," that it is valid for one who holds that view, such as the Shafi'is, as has been said—and this is contrary to the literal meaning of his words, as is not hidden from one who returns to them.

It is a condition that the accusation take place in the Abode of Islam and be explicit regarding adultery. There is no Li'an for an accusation of sodomy according to the Imam (Abu Hanifah), while according to the two (Abu Yusuf and Muhammad), there is Li'an for it. There is no Li'an for an accusation through allusion or implication. The explicit accusation is like saying, "You are an adulteress," "O adulteress," or "I saw you committing adultery." The well-known view from Malik is that the first two incur the hadd, while the third is what necessitates Li'an; this is the view of al-Layth, 'Uthman, and Yahya ibn Sa'id. This was weakened by the argument that all of these constitute an accusation of adultery, which is the cause, as the verse indicates; thus, there is no difference. Equivalent to an explicit accusation is the denial of the lineage of her child, whether from him or from another.

In al-Muhit and al-Mubtaghi, it is stated: If he denies the child, saying, "This is not my son," and does not accuse her of adultery, there is no Li'an between them, because the denial is not necessarily an accusation of adultery, as it is possible the child is from another through a dubious union—though this is a remote possibility that is not considered, as Zayni established in al-Bahr.

It is a condition for the obligation of Li'an that the wife request it in the judge's court, as in al-Bada'i', if the accusation was an explicit charge of adultery, because Li'an is her right—it is to push off shame from her. The three Imams also held this. If the accusation was the denial of a child, the request of the accuser is required, because it is also his right, as he needs to deny one who is not his son. This denial is incumbent upon him if he is certain the child is not his, for in silence or acknowledgment lies the wrongful inclusion of a lineage that is not his, which is prohibited, just as denying the lineage of one who is his is prohibited. Abu Dawud and al-Nasa'i narrated that the Prophet, peace and blessings be upon him, said when the verse of Li'an was revealed: "Any woman who brings into a people one who is not of them is not from Allah in anything, and Allah will never admit her into His Paradise. And any man who denies his child while looking at him, Allah, the Almighty, will veil Himself from him on the Day of Resurrection and disgrace him before the heads of the first and the last." If it is possible the child is his, then denial is not obligatory; rather, it may be permissible or considered "contrary to the better." The possibility might weaken to the point where denial is not permissible—for instance, if his chaste wife gives birth to a child that does not resemble him. It is narrated from Abu Hurayrah that a man said to the Prophet, peace and blessings be upon him, "My wife gave birth to a black boy." He said, "Do you have camels?" He said, "Yes." He said, "What are their colors?" He said, "Red." He said, "Are there any dusky ones among them?" He said, "Yes." He said, "How so?" He said, "An ancestral trait drew it out." He said, "Perhaps this [boy] was drawn out by an ancestral trait." They mentioned regarding a woman suspected with a man who gives birth to a child resembling him two possibilities: the permissibility of denial and the prohibition of it.

As for an explicit accusation of adultery, once it is verified, it is permitted, but it is also allowed for him to veil her and keep her, based on the appearance of what was narrated: a man said, "O Messenger of Allah, my wife does not turn away the hand of any touch." He said, "Divorce her." He said, "I love her." He said, "Then keep her." There is another possibility mentioned by the commentators of the Hadith. Without verification, it is not permissible.

It is better for the wife not to demand Li'an and to conceal the matter, and the ruler may command her [to conceal it]. If she demands it and the husband has admitted to the accusation—or it is proven by evidence (two men, not one man and two women, as there is no female testimony in hadd punishments; what is in al-Nahr and al-Durr al-Muntaqa about the validity of this is a slip of the pen)—then he must perform Li'an if he persists and is unable to provide evidence of her adultery, or of her confession, or of her confirming him. Or, if he provided evidence of that, then the witnesses became blind, immoral, or apostates—this is unlike if they died or were absent after they were declared upright, for then he does not judge by Li'an.

If he refuses, the judge imprisons him until he either separates from her by divorce or otherwise, or performs Li'an, or retracts his statement and is punished. According to Ash-Shafi'i, if he refuses, he is punished with the hadd for qadhf. Similarly, if he performs Li'an and she refuses, in his view, she is punished for adultery. According to us, she is imprisoned until she performs Li'an or confirms him, which removes the cause for the obligation of their Li'an—which is the mutual denial—according to one view. The more appropriate view is that the cause is the accusation, and the mutual denial is its condition. Just as there is no Li'an with confirmation—if it is done with the words "I confirm," there is no hadd upon her—even if she repeats this four times in different sittings, because the mentioned confirmation is not an intentional confession per se; thus, it is not considered in the obligation of the hadd, but rather in its repulsion. Li'an is repelled by it, and the hadd is not obligated by it. Likewise, as in al-Hakim, the hadd is repelled from her accuser after [the accusation]. If she confirms him in the denial of the child, there is no hadd and no Li'an, and it is their child, because lineage is only severed by the ruling of Li'an, which did not occur, and it is the child's right; therefore, they are not believed in annulling it. What is in the commentaries of al-Wiqayah and al-Nifayah—that if she confirms him, it is denied—is incorrect, as pointed out in the commentary of al-Durar wa al-Ghurar.

The rationale for Ash-Shafi'i's view on the hadd upon refusal is that the obligation for qadhf is generally the hadd, due to the generality of His saying, "And those who accuse chaste women," etc. However, he is enabled to repel it if the accused is a wife through Li'an, as a mitigation for him; if he does not repel it thereby, he is punished. Likewise, the woman performs Li'an after the husband makes it incumbent upon her with his Li'an; if she refuses, she is punished for adultery. His saying, the Exalted, "And it shall avert from her the punishment," points to this. Our view is that His saying, "And those who accuse their wives," up to "the testimony of one of them," etc., is understood—regardless of the reading—that what is obligatory in the accusation of wives is Li'an. Only an arrogant person would deny this. Therefore, it is either a repealing (nasikh) or a specifying (mukhasis) of the generality of that general rule. The apparent view to us is that it is a repealing, due to the delay in its revelation, as the authentic traditions testify. The specifying (mukhasis) does not typically have delayed revelation. Under either premise, the judgment established for the accusation of wives is what is contained in the verse of Li'an while the marriage persists, as is apparent. Therefore, nothing else is obligatory upon refusal; rather, he is imprisoned to fulfill it, as is the case when one who is obligated to perform a duty refuses—he is imprisoned to fulfill it. It is not determined that the meaning of "punishment" in the verse is the hadd, as it could be imprisonment. Once the proof is established that Li'an is the obligatory act, it must be applied accordingly.

It is said: It is astonishing that Ash-Shafi'i, may mercy be upon him, does not accept the husband's testimony against her for adultery along with three upright men, yet he obligates the hadd upon her by his word alone, even if he were a slave or an immoral person. More astonishing is that Li'an is an oath in his view, and it is not suitable for obligating property or for lifting it after obligation, yet through it, both the man and the woman drop the hadd from themselves, and he obligates through it the stoning, which is the most severe of the hadd punishments upon the woman. If he says, "It only obligates it upon her due to her refusal of Li'an," we say: This is also part of that astonishment. For the refusal to be a confession—there is suspicion in it, and the hadd is repelled by suspicion, even though it is at most equivalent to his confession once. This suspicion had the effect in his view of preventing the obligation of property, even though it is established with suspicion; so how can he obligate stoning by it, which is the most severe of punishments, the most difficult to prove, and has the most conditions?

In al-Nahr, quoting from al-Isbijani, it is stated that they are both imprisoned if they refuse Li'an after proof, then he said: "It should be interpreted as applying when the woman has not been forgiven, as in al-Bahr." In my view, there is a kind of difficulty in imprisoning her after his refusal, because Li'an is not obligatory upon her until after his Li'an; thus, before that, it is not a refusal of a right that has become obligatory upon her.

Al-Tahtawi replied that after they have taken the matter to the judge, the implementation of Li'an has become a right of the Shari'ah. If she has not been forgiven and demonstrates refusal, she is imprisoned, unlike if only he refuses, in which case she is not imprisoned.

It is said: The intent is not their refusal at the same moment, but his refusal after the demand for it, and her refusal after his Li'an. Ponder this.

The literal meaning of "testimony" is verbal. Hence, they said there is no Li'an if both are mute or one of them is, due to the loss of the pillar: the word "I testify." It is also argued that there is a suspicion of the possibility of one confirming the other if they were able to speak, and the hadd is repelled by suspicion. The writing of a mute person in this chapter is like his gesturing and cannot be relied upon. They mentioned that if dumbness occurs after Li'an but before the separation, there is no separation and no hadd.

The apparent meaning of the verse implies starting with the husband's Li'an, which is what is recorded in the Sunnah. If the judge begins with her command and she performs Li'an before him, he has erred against the Sunnah, and it is not obligatory—as in al-Ghayah—that she repeat her Li'an after his. Malik also held this. In al-Bada'i', it is said she should repeat it, because Li'an is the woman's testimony, and testimony undermines the husband's testimony, so it is not valid unless it occurs after his testimony. For this reason, one begins with the claimant's testimony in the chapter of claims, then with the defendant's testimony by way of defense. This was narrated from Ash-Shafi'i and Ahmad, and Ashhab of the Malikis. The view mentioned earlier is more correct, as the verse followed the accusation with the testimony of one of them and her testimony averting the punishment; thus, this aggregate is after the accusation, and there is nothing in the verse indicating an order between the parts of the aggregate. This is analogous to what some of the great scholars of our school have established regarding His saying, "When you rise for prayer, wash your faces and your hands to the elbows"—this is in explanation, and it does not indicate the obligation of order, as the Shafi'is say.

The apparent meaning of the verse is that it is not obligatory in his Li'an to use the second-person pronoun, nor in hers. In al-Hidayah, the form of Li'an is that the judge begins with him; he testifies four times, saying in each: "I testify by Allah that I am of the truthful in what I accused her of regarding adultery." And he says in the fifth: "The curse of Allah be upon him if he was of the liars in what I accused her of regarding adultery," gesturing in all of that. Then the woman testifies four times, saying in each: "I testify by Allah that he is of the liars in what he accused me of regarding adultery." And she says in the fifth: "The wrath of Allah be upon her if he was of the truthful in what he accused me of regarding adultery." The basis for this is the verse. Al-Hasan narrated from Abu Hanifah that he uses the direct address, saying, "in what I accused you of regarding adultery," and she also does that, saying, "that you are of the liars in what you accused me of regarding adultery," because it is more definitive in eliminating possibility, specifically the possibility of pronoun-reference shifting which is not intended. The rationale for the first view is that when the pronoun of absence is accompanied by a gesture, the ambiguity is eliminated. From al-Layth, it is narrated that in Li'an, the form mentioned in the verse is sufficient, and the one performing Li'an replaces the third-person pronoun with the first-person pronoun in his testimony absolutely, and the woman does the same in her fifth testimony, attaching the pronoun suffix to "upon." The meaning of "sufficiency" of the mentioned form is that he does not need the addition "in what I accused her of..." and she does not need the addition "in what he accused me of...".

What was mentioned about using the first-person pronoun is the apparent meaning. It was not used in the Noble Text so that the pronouns would be consistent and be in one style throughout the verse, in addition to the subtlety of observing the following [the context] as is said. There is no iltifat (shift in pronoun) in the verse at all, contrary to what some of the contemporary scholars we have known imagined. As for what was indicated about not needing the addition mentioned earlier, the apparent view is that the precaution is the opposite. That addition appeared in what occurred in his time, peace and blessings be upon him, of the Li'an between Hilal and his wife, according to some narrations. The scholars mentioned that in the case of Li'an through the denial of a child, he adds after saying "of the truthful" the phrase "in what I accused you of regarding the denial of the child," and she, after "of the liars," says "in what you accused me of regarding the denial of the child." If the accusation was both adultery and denial of a child, both are mentioned in Li'an.

Abu Hayyan narrated from Malik that the one performing Li'an says: "I testify by Allah that I saw her commit adultery," and she says: "I testify by Allah that he did not see me commit adultery." From Ash-Shafi'i, the husband says: "I testify by Allah that I am truthful in what I accused my wife, [Name, Daughter of Name] of," gesturing to her if she is present, four times. Then the Imam makes him sit and reminds him of Allah, the Almighty. If he sees that he is proceeding, he orders someone to place their hand on his mouth. If he does not desist, he leaves him, and then he says the fifth, bringing the pronoun suffix with "upon." If he accused her of a specific person, he names him in each testimony. If he denies her child, he adds, "This child is a child of adultery, he is not from me," and frightening him with Allah, the Almighty, is legislated for those performing Li'an. It has been authentically narrated in the story of Hilal that when it was the fifth time, he was told: "Fear Allah, the Almighty, and be cautious, for the punishment of this world is easier than the punishment of the Hereafter, and this is the 'obligating' [oath] which will obligate the punishment upon you." It is said that something similar was said to his wife at the fifth time as well.

In the apparent meaning of the verse, there is a refutation of Ash-Shafi'i, may mercy be upon him, where he said that by the mere Li'an of the husband, separation between them is established. This is because the apparent meaning is that she testifies while she is still his wife. Once separation occurs by the husband's Li'an, she is no longer a wife when she performs her Li'an. The view of Abu Hanifah, may mercy be upon him, is that when Li'an occurs, the sanctity of intercourse and its preliminaries is established for the one performing Li'an. If he divorces her, that is that; if he does not, she is separated by the judge’s decree, even if they do not agree to the separation. If the judge separates them mistakenly after the majority of Li'an from both has occurred, it is valid. It is a condition that the separation be in their presence, just as the presence of the agent is like the presence of the principal. They inherit from one another until then. If eligibility for Li'an ceases thereafter, if it is for a cause hoped to cease, such as insanity, he separates; otherwise, he does not. Zufar said: The separation is by their Li'an. If he retracts his statement after Li'an and the separation, and is punished, whether he is punished or not, it is lawful for him to marry her according to Abu Hanifah and Muhammad. Abu Yusuf said: If the two who performed Li'an separate, they can never be reunited, and a sanctity is established between them like the sanctity of fosterage. The three Imams held this. The evidence for these views and what is for and against them is sought in the expansive books of jurisprudence.

The legality of Li'an is used as evidence for the permissibility of supplicating for a curse against a specific liar, for His saying, "The curse of Allah be upon him if he was of the liars," is a supplication against himself for the curse on the condition of his lying, and suspending it upon that does not remove it from specificity. Yes, it is said that its legality is only if he is truthful; if he were a liar, it would not be lawful for him. The Kharijites argued that lying is disbelief, because the one described by it deserves the curse, and likewise adultery is disbelief, because its perpetrator deserves the wrath, for neither the curse nor the wrath is deserved except by an unbeliever. The curse is driving away from mercy, which only applies to an unbeliever, and the wrath is greater than that. The answer is that it is not conceded that the curse, wherever it occurs, means being driven away from mercy; for it may mean being dropped from the rank of the righteous, or it may be intended to show the meanness of the cursed. Likewise, it is not conceded that the wrath is exclusive to the unbeliever, even though it is harsher than the curse. And Allah knows best.