| Al-Ahzab: (49) O you who have believed . . . . .

(O you who have believed, when you marry the believing women and then divorce them before you have touched them, then for you there is no waiting period that you should count against them.)

The return to the mention of women and marriage here—marriage by consensus refers to the contract. There is disagreement regarding its linguistic concept; it is said to be a homonym between intercourse and the contract, an instance of verbal homonymy. It is also said to be literal for the contract and metaphorical for intercourse, and vice versa. Others argue it is a semantic homonym, belonging to the category of "variable meanings" (mushakkik), and its essence is "joining and gathering," as in the saying: "I gathered her fragrant bosom to my chest, just as the mother of the boy 'nikaha' (joined) her child [to herself]." Al-Mubarrad transmitted this from the Basrans, and the boy of Tha'lab, Shaykh Amr al-Zahid, from the Kufans.

The immediate connotation of the term "joining" relates to bodies, not speech; for speech is an accident that vanishes, the first part of which expires before the existence of the second, thus the second does not encounter what to join with. This necessitates that it is a metaphor in the context of the contract. However, if "joining" is considered broader than joining a body to a body—encompassing the joining of speech to speech—it is permissible for nikah to be literal in both intercourse and the contract, or metaphorical, based on the well-known detail regarding the usage of a general term for each of its individual instances. Al-Raghib chose the second of the aforementioned opinions and was emphatic in rejecting the third, saying: "It is literal for the contract, then borrowed for intercourse. It is impossible for it to have been originally for intercourse and then borrowed for the contract, because all names for intercourse are euphemisms, due to their aversion to mentioning it, just as they are averse to performing it. It is impossible for one who does not intend vulgarity to borrow the name of that which they consider heinous for that which they consider virtuous."

Al-Zamakhshari chose the third, stating: Nikah is intercourse, and calling the contract nikah is due to its association with it, as it is the path to it. An analogy is calling wine "sin" because it is a cause for committing sin. The term nikah did not appear in the Book of Allah except in the sense of the contract, for in the context of intercourse, it is a matter of explicit mention; and among the etiquettes of the Quran is to use euphemisms for it, such as "touching" (mulamasah), "contact" (mumasah), "approaching," "covering," and "coming unto." It is suggested that in the context of the contract, it is a "legislative reality" (haqiqah shar'iyyah) where the linguistic meaning is forgotten. This is challenged by the statement, "The term nikah did not appear in the Book of Allah except in the sense of the contract," by citing His saying: "...until she marries (tankiha) a husband other than him," where it means intercourse. This is the position of the majority, while Ibn al-Musayyib opposed it. The complete discussion is in its place.

"Touching" (mass) is originally known, and here it is a euphemism for intercourse. The "waiting period" (iddah) is the thing counted; the woman’s iddah refers to the days upon the expiration of which it becomes lawful for her to marry. That is: O you who have believed, when you contract with believing women and marry them, then divorce them before you have intercourse with them, there is no waiting period for you upon them of days in which they restrain themselves, for which you would fulfill the count. This is based on ta'taddunaha being the derivative of 'adda (to count); it is said "he counted ('adda) the dirhams," meaning "he fulfilled their count," similar to your saying "I measured it (kiltuhu) and obtained the measure (iktaltuhu)" and "I weighed it (wazantuhu) and obtained the weight (ittazantuhu)." Or it could be ta'taddunaha where the form ifti'al carries the meaning of the simple verb. Attributing the act to the men is to indicate that the iddah is a right of the husbands, as is suggested by His saying: "for you."

This is objected to by noting that what is mentioned in the books of jurisprudence, such as al-Hidayah and others, is that it is a right of the Sharia; thus, it does not lapse even if the husband waives it, and it is not lawful for her to exit, even if he permits it. The two iddahs (periods) intermix, and there is no intermixing regarding the right of the slave or the child. This is why the Prophet (ﷺ) said: "It is not lawful for a man who believes in Allah and the Last Day to irrigate his water into the tillage of another." From this, they derived that the two spouses are not believed if they agree to deny intercourse [to invalidate the iddah].

The answer is that it is not intended that it is solely their right, but that its benefit and utility return to them, because it is for the preservation of their water and the lineages returning to them. This does not negate that the Sharia and the child have a right in it that prevents its waiver. Even if it were assumed to be solely their right, one could say: the fact that it does not lapse by their waiver does not negate that, unless it is established that every right of the servant lapses when waived by him; and this is not the case, for some rights of the servant do not lapse by waiver, such as inheritance, the right to return a gift, and the option of inspection (khiyar al-ru'yah). Furthermore, there is contemplation required in using the Hadith to argue that it is the right of the child, as is not hidden.

Specifying "believing women," despite the rule being general for the People of the Book, is to alert that the believer should be selective for his semen and not marry except a believing woman. In sum, it is to explain what is more appropriate and suitable, after having detailed in [Surah] al-Baqarah the marriage of the People of the Book. The benefit of bringing "then" (thumma), even though the ruling is fixed for one who marries a woman and divorces her immediately just as it is for one who marries her and divorces her after a long period, is to dispel the illusion that the delay of the divorce has a role in obligating the iddah due to the possibility of meeting and intercourse in secret, just as it has a role in lineage. It is possible that the reference is to a ranking delay; for divorce, even if permitted and without dislike—according to some, due to His saying: "There is no blame upon you if you divorce women while you have not touched them"—is not beloved, like marriage, in that it leads to severing the connection and loosening the bond of wedlock, which leads to a decrease in procreation, by which the nation grows. For this reason, it has been reported, as Abu Dawood, Ibn Majah, al-Hakim, al-Tabarani, and Ibn 'Adi narrated from Ibn 'Umar (may Allah be pleased with them both) in a marfu' form: "The most detested of permissible things to Allah is divorce." Al-Bayhaqi narrated it as a mursal report without Ibn 'Umar. Indeed, the scholar Ibn al-Humam said: "The more correct view is its prohibition and dislike, except for a need, due to it being an ingratitude for the favor of marriage, and due to the reports indicating that." The term "permissible" in the aforementioned report is carried to mean what is permitted at some times, namely the times when the need that permits it is realized. This is evident in a narration of Abu Dawood: "Allah has not permitted anything more detested by Him than divorce." An action does not have a generality in time. The need that permits it is, for example, pride or suspicion. Among the permitted reasons is lack of desire for her, such that he is unable or harmed by forcing himself to have intercourse with her, while she is not pleased with his remaining in the marriage without intercourse or division [of time].

As for what was narrated about Hasan al-Sibt (may Allah be pleased with him) when he was told of his frequent marriage and divorce, he said: "I love beauty," and Allah said: "But if they separate, Allah will enrich each from His abundance." This is his opinion if it is taken at face value. Everything reported regarding the divorce of the Companions (may Allah be pleased with them) is carried to the existence of a need. The manifest meaning of the verse requires that the iddah is not obligatory merely by seclusion, because He (Exalted is He) negated in it the obligation of the iddah if she is divorced before intercourse. Seclusion is not intercourse. According to us, if it is a "valid seclusion," as explained in the books of jurisprudence, it is like intercourse in the obligation of the iddah; thus, the iddah is obligatory therein as a precaution due to the suspicion of impregnation, considering the actual capability. They even said it is like it in all its rulings except for ten, which the best of our contemporaries, the jurist Shaykh Muhammad Amin al-Shami, known as Ibn 'Abidin, arranged by saying: "His seclusion is like intercourse, except in ten: demand for intercourse, chastity (ihsan), legalization (tahlil), restitution (*fi'), heirship, revocation (raj'ah), loss of impotence, prohibition of the daughter, contract of a virgin, and ritual bathing." The apparent meaning of their saying that the iddah is obligatory in it is that it is obligatory both legally and religiously. In al-Fath, al-'Attabi said: "Our scholars discussed the iddah obligatory due to valid seclusion; is it obligatory in the exterior/legal sense or in reality?" It was said: "If she married while certain that no entry occurred, it is lawful for her religiously, not legally." He did not follow this up with anything. Sa'di Chalabi mentioned it in the marginalia of al-Baydawi and said: "Reliance should be placed on this opinion." Shihab al-Khafaji followed up on that by saying: "Even if our jurists transmitted it, they clearly stated that it is not relied upon." We have not seen this clear statement, so let it be followed. It is not hidden that the non-obligation of the iddah in a divorce after seclusion is a manifest wording in the verse if "touching" is interpreted as intercourse; it is not a matter of implication, so that one might say "we do not subscribe to it," as is imagined. Therefore, to prove the obligation of the iddah in that case, there must be evidence. Some people interpreted "touching" in it as seclusion, as an application of the name of the effect to the cause, since touching is an effect of seclusion by custom. This was objected to on the grounds that "touching" is not known in the meaning of seclusion, nor is there a context in the speech for intending it from it. Furthermore, it would follow that if he divorced her after having intercourse with her in the presence of people, the iddah would not be obligatory because he divorced her before seclusion. The answer is that the obligation of the iddah in that case is by consensus, and if the iddah is obligatory in divorce merely by seclusion, it is obligatory by intercourse a fortiori. How could it not be obligatory by it, when its obligation by seclusion is due to the possibility of its occurrence, not due to the seclusion itself? It was also said: "Since the literal meaning of 'touching' was not intended—otherwise the iddah would be obligatory if he divorced her after touching her with his hand without seclusion, whereas it is not obligatory in that case by consensus—it is known that it is a euphemism for another meaning of the requirements of connection, which is intercourse and what is in its meaning of valid seclusion." There is a view on this, for the fact that its literal meaning cannot be intended does not necessitate intending something that encompasses intercourse. Why is it not possible that intercourse is intended, and the familiarity of the euphemism for that is what gives it preference? And its application to it is either from the application of the cause's name to the effect, or the application of the general term's name to a specific instance, which is the most preferable, as the scholar Ibn al-Humam mentioned. In short, the statement that the literal meaning of the verse requires the non-obligation of the iddah merely by seclusion is a solid statement and a manifest truth, so reflect on this.

In al-Bahr by Abu Hayyan: "The apparent meaning is that if a divorced woman is taken back by her husband before her iddah expires, then he separates from her before touching her, she does not complete her iddah from the first divorce, because she is divorced before consummation with her." Dawud said this. 'Ata and a group said: "She proceeds in her iddah from her first divorce," which is one of the two opinions of al-Shafi'i. Malik said: "It is not built upon the iddah from the first divorce, and she restarts the iddah from the day he divorced her the second divorce." This is the opinion of the majority of the jurists of the cities. The apparent meaning is also that if she were irrevocably divorced (but not fully finalized), and he married her during the iddah, then divorced her before consummation, it is like the revocable divorce in the opinion of Dawud; there is no iddah upon her, neither the remainder of the first divorce's iddah nor restarting an iddah for the second, and she has half the dowry. Al-Hasan, 'Ata, 'Ikrimah, Ibn Shihab, Malik, al-Shafi'i, 'Uthman al-Batti, and Zufar said: "She has half the dowry, and she completes the remainder of the first iddah." Al-Thawri, al-Awza'i, Abu Hanifah, and Abu Yusuf said: "She has a full dowry for the second marriage and a new iddah," treating her as one who has been consummated with because she observed the iddah from his water. Also, in it: "The apparent meaning is that divorce is only after the contract, so the divorce of one who has not contracted is not valid." This is the opinion of the majority of the Companions and Successors.

A large group of them, including Malik, said it is valid. The divorce of one who has not contracted refers to a man's statement: "Every woman I marry is divorced," or "If I marry so-and-so, she is divorced."

A group narrated from Ibn 'Abbas (may Allah be pleased with them both) that he was asked about that, and he said: "It is nothing." It was said to him: "Ibn Mas'ud used to say: 'If he divorces what he has not married, it is valid.'" He replied: "He erred in this," and he recited the verse. In some narrations, he said: "May Allah have mercy on Abu 'Abd al-Rahman; if it were as he said, Allah would have said: 'O you who have believed, if you divorce the believing women, then marry them.' But He only said: 'If you marry the believing women, then divorce them.'"

In al-Durr al-Manthur, there are several marfu' hadiths stating that there is no divorce before marriage. What is mentioned in our jurisprudence is that this is a matter of suspension, and its condition is ownership or the addition to it. So if he says: "If I marry a woman, she is divorced," or "If I marry you, you are divorced," or "Every woman I marry is divorced," the divorce occurs if he marries, because that is a suspension and it contains addition to ownership. The meaning of the condition is sufficient, except in one specified by name and lineage, as if he says: "So-and-so, daughter of so-and-so, whom I marry, is divorced," or by pointing in the case of one who is present, as if he says: "This woman whom I marry is divorced," for she is not divorced in the two cases due to her being specified; thus, the description "whom I marry" became void. It becomes as if he said: "So-and-so, daughter of so-and-so, or this woman is divorced," and she is a stranger, and the addition to ownership did not occur, so the divorce does not occur if he marries her. So ponder this.

It was read (tamassuhunna) with a dammah on the ta and an alif after the mim. From Ibn Kathir and others of the people of Makkah, it was read (ta'taddunaha) with a light dal. Ibn Khalawayh and Abu al-Fadl al-Razi in al-Lawami' transmitted it from him and from the people of Makkah. Ibn 'Atiyyah said: Ibn Abi Bazzah narrated from Ibn Kathir that he read it with a light dal from al-'udwan (aggression), as if he said: "You have no iddah that you impose upon them out of aggression and injustice." The first reading is more famous from him, and the light dal is an error from Ibn Abi Bazzah. It is not an error, for a group other than him transmitted it from him, and it is interpreted as ta'taddunaha being from al-i'tida' (transgression) in the meaning of injustice, as in His saying: "...and do not retain them to cause them harm and transgress (ta'tadu)." The intended meaning is "you transgress in it," like his saying: "And a day we witnessed Sulaym and 'Amir, few except for the spear-thrusting of the darak its extra portions," meaning "we witnessed in it," so the preposition was omitted and the verb connected to the pronoun. Abu Hayyan said: al-i'tida' is transitive with 'ala (on), so the intent is "you transgress against them in it." An analogy for the omission of 'ala is his saying: "She yearns and reveals what is in her of longing, and hides what, were it not for the grief, I would have decided..." for he intended la-qudiya 'ala (it would have been decided upon). It is permitted that this is on the basis of replacing the ta. It was said regarding it: "It is an invalid deduction because 'adda ya'uddu is from the category of nasara (as in the language books), so there is no justification for fathah on the ta if it were a replacement for the dal." Thus, the apparent meaning is to carry it to the omission of one of the two dals for ease. Al-Hasan read with the sukun of the 'ayn like others, and the shaddah of the dal, combining two sukins.

(So make provision for them), meaning give them the mut'ah (provision). It is, in the famous view, a garment—that is, a shirt, a veil (what a woman covers her head with), and a mantle (what she wraps herself with from head to toe). Perhaps it is what is called an izar today. This is, according to al-Bada'i', the least that a woman is clothed with and covers herself with when going out. It is understood from the speech of Fakhr al-Islam and the learned Bur Jandi that the custom of every town is considered regarding what a woman is clothed with when going out. The fatwa-based opinion, which is most similar to jurisprudence, is the statement of al-Khassaf: it is considered according to their status. If they are both wealthy, she has the highest of garments; or poor, the lowest; or different, the middle. It is obligatory for the divorced woman before intercourse and seclusion—if the one who counts it as such is followed—for whom no dowry was specified in the marriage contract in any way, and it does not exceed half the equivalent dowry, nor is it less than five dirhams. If it equals half, it is what is obligatory; if the half is less than that, the obligatory is the lesser, unless it is less than five dirhams, so it is completed for her to five. In al-Bada'i': "If he gives her the value of the mut'ah, she is compelled to accept." So the meaning of the verse is as you heard, and the command is for obligation: "Make provision for them" if nothing was specified for them in the marriage. This was narrated from Ibn 'Abbas. As for what was specified for her, if she is divorced before touching, what is obligatory for her is half of what was specified, nothing else.

As for the mut'ah, according to al-Mabsut, al-Muhit, and other reliable books, it is recommended (mustahabb). According to some copies of al-Quduri, and the author of al-Durar followed it, it is not recommended either. The more correct view is that it is recommended. In the old opinion of al-Shafi'i, it is obligatory, as in the case of no specification. It is permitted that the verse remains on its literal meaning, and the intention is the mention of the divorced woman before touching, whether a specification was made in the marriage or not, and "provision" is intended as a gift absolutely, so it encompasses half the specified amount and the mut'ah known in jurisprudence, and the command would also be for obligation. Or, "provision" is intended in its known meaning, and the command is carried to what encompasses obligation and recommendation.

Sa'id ibn al-Musayyib claimed, as narrated by 'Abd ibn Humayd, that the verse is abrogated by the verse in al-Baqarah: "...and if you divorce them before you have touched them and you have already specified for them an obligation, then [give] half of what you specified." He said: "So she has half the dowry, and no mut'ah for her." Al-Hasan and Abu al-'Aliyah denied the abrogation and said: "She has half the dowry, and she has the mut'ah."

In another narration brought out by 'Abd ibn Humayd from al-Hasan, it is said that for every divorced woman there is a mut'ah, whether he had intercourse with her or not, or specified or did not specify for her. Its manifest meaning is the claim of obligation in all cases, which is contrary to our view. You have known the ruling in two cases, and in the remaining two cases, it is recommendation. As for the claim of abrogation, it is not hidden what is in it. The apparent meaning is that the fa is to derive what follows it from what precedes it. It was said: it is eloquent, meaning if it is as mentioned, make provision for them.

(And set them free), meaning expel them from your homes, for you have no iddah upon them. The origin of "setting free" (tasrih) is that the camels graze on the sarh, which are trees with fruit, then it was applied to every sending out to graze, then to every sending out and expulsion. (...in a graceful manner), encompassing good words, free from harm and the prevention of what is obligatory. It was said: "Graceful setting free" is that they do not demand back what they gave them. Al-Jubba'i said: "It is the Sunnah divorce." This is nothing, because that is connected to the provision, which occurs after the fa, predicated upon the divorce; thus, it would necessitate the Sunnah divorce being predicated upon the divorce. The pronoun is for those not consummated with, so it is impossible for that to be a divorce predicated upon the first divorce, because for those not consummated with, it is inconceivable that a divorce could follow a divorce, while she is already separated if she is divorced.