An-Nisa: (25) "And whoever is not able..."
(And whoever among you is not able...): The "man" (whoever) is either conditional, with what follows it being its condition, or it is relative (mawsula), with what follows it being its relative clause (silah). (Among you) is a state (hal) of the pronoun in (is able). His saying—Exalted is He—(to marry free, believing women): (Tawlan) is the object of "is able." It has been interpreted as an objective case for it, or made as an object for a reason (maf'ul li-ajlihi) with an implied genitive, meaning: "due to the lack of tawl (means), or "without tawl."
The intent behind it is wealth and capacity; thus, Ibn Abbas and Mujahid interpreted it. Its root is bounty and increase; from this comes the word al-ta'il. Some have interpreted it as attainment and acquisition, derived from their saying "I tultu it," meaning "I attained it." From this is the saying of al-Farazdaq: "Indeed, al-Farazdaq is a solid rock that is high (talat), so the mountain goats cannot reach it."
His saying—the Almighty, the Exalted—(to marry free, believing women): (Meaning the free women, as evidenced by their being contrasted with those owned). He referred to them as such because their freedom has protected (ahsanat) them from the deficiency of slave women. This can be attached to (tawlan) in the sense of "whoever is not able to attain the marriage of free women." It can also be under the estimation of "to" (ila) or "for" (lam), with the prepositional phrase in the position of an adjective for (tawlan), meaning: "whoever among you is not able [to have] wealth that leads to marrying them," or "for marrying them." Or, [it is based] on tawl being in the sense of capacity, as al-Zajjaj said. The position of (an) after the deletion is in the genitive or accusative, according to the well-known disagreement. This estimation is that of al-Khalil, and al-Kisa'i held this view. Abu al-Baqa' permitted it to be a substitute (badal) for (tawlan)—a substitution of one thing for another where both are the same—based on the idea that tawl is capacity or bounty, and marriage is a power and a bounty. It is also said: It is permissible for it to be an object for "is able," and (tawlan) is a source (masdar) emphasizing it, since the ability is the tawl. Or it is a specification (tamyiz), meaning: "whoever among you is not able [through] ability or through the aspect of tawl and wealth," meaning not through nature and temperament, as that has no relation to the context.
His saying—the Almighty, the Exalted—(then [marry] from those your right hands possess): This is the response to the condition or the predicate of the relative (mawsul). The fa (then) came for a reason mentioned more than once. (Ma) is a relative noun in the place of a genitive via the partitive min (from). The prepositional phrase is attached to an implied verb whose object has been deleted; in reality, it is attached to an implied element that acts as an adjective for that object, meaning: "Let him marry a woman who is of the type that your right hands possess." Abu al-Baqa' permitted the view that (min) is redundant, meaning: "Let him marry what your right hands possess."
His saying—the Almighty—(from your young women): (i.e., your slave women). (The believers) is in the place of a state (hal) from the implied pronoun returning to (ma). It is also said: (min) is redundant, and (your young women) is the object of the implied verb mentioned earlier, and (from those your right hands possess) is attached to the same verb, with (min) being for the beginning of the limit (ibtida' al-ghayah), or it is attached to an implied element that occurs as a state for this object, with (min) being partitive. (The believing women), in all these views, is an adjective for (your young women). It is also said: It is the object of that implied verb, though that is far-fetched.
The apparent meaning of the verse indicates the impermissibility of marrying a slave woman for one who is capable [of marrying a free woman], due to the concept of the condition (mafhum al-shart), as held by al-Shafi'i. It also indicates the impermissibility of marrying a non-Muslim slave woman absolutely, due to the concept of the description (mafhum al-sifah), as is the opinion of the people of the Hijaz. The Supreme Imam (may Allah be pleased with him) permitted both, due to the unrestricted nature of the requirement in His saying—the Exalted: (Marry what pleases you of women) and (And lawful to you are [all others] beyond these). Therefore, nothing is excluded from it except by that which necessitates specification. What was mentioned did not stand as a refuting argument. Firstly, the two concepts—the concept of condition and the concept of description—are not arguments for him, as established in the principles (usul). Secondly, assuming they were arguments, the implication of the two concepts is [only] the lack of the permissibility that is established upon the existence of the permitting restriction. Lack of permissibility is more general than the establishment of prohibition or detestability (karaha). The general does not imply the specific by its specificity. Thus, it is permissible for detestability to be established upon the existence of the tawl for a free woman, just as it is permissible for prohibition to be established equally. Detestability is less [severe], so it is confirmed, and we have spoken in favor of it. Detestability is explicitly stated in al-Bada'i. Some argued that the lack of permissibility for marrying a slave woman, where the condition is not met, is due to exposing the child to slavery, so that the prohibition is established by analogy to various foundations, or to specify one of the two parts of the general—which is the lack of permissibility—as the intended meaning.
This was challenged by saying: If they mean that it contains an exposure of a child described by freedom to slavery, we concede it necessitates prohibition, but the existence of this description is denied; there is no one here described by freedom who is exposed to slavery. Rather, the two descriptions of freedom and slavery accompany the existence of the child based on its mother: if she is free, [the child] is free; if she is a slave, [the child] is a slave. If they intend by it the exposure of the child who will come into existence to be accompanied by slavery in existence, rather than enslaving it, we concede its existence but deny its influence on prohibition—it would only influence detestability. This is because he could have chosen not to have a child at all by marrying an infertile woman or the like, so for him to have a slave child after it being a Muslim is more appropriate. For the goal intended in procreation is to increase those who profess the oneness and divinity of Allah and what He must be confessed with, and this is confirmed by the Muslim child. Freedom, with that, is a perfection that mostly returns to a worldly matter. It has been permitted for a slave to marry two slave women by consensus, even though there is exposure of the child to slavery in a place where there is no need or necessity for it. And the slave being a father has no effect in the establishment of the child's slavery; for if he married a free woman, his child would be free. The preventer [of marriage] can only be conceived as the one possessing the slavery, for that is what causes the deficiency which they made prohibited, not with the restriction of the father's freedom. Therefore, the slave and the free man must be equal in this ruling if that reasoning were correct, as Ibn al-Humam said; however, there is a discussion on this, so reflect.
In this verse is that which points to the weakness of the Shi'a's argumentation from the previous verse regarding the permissibility of Mut'ah (temporary marriage). For Allah the Exalted commanded in it to suffice with marrying slave women when there is no tawl for marrying free women. If He had permitted Mut'ah in the previous discourse, He would not have said after it: (And whoever is not able...), etc., because Mut'ah in the scenario of the lack of tawl mentioned is not limited to fulfilling the need for intercourse; rather, it was by the decree that "every new thing has a more pleasant and better flavor." Furthermore, Mut'ah is lighter in burden and less costly, as it is a matter that suffices with one or two dirhams. So what necessity was there inviting one to marry slave women? By my life, the opinion that [it refers to Mut'ah] is far beyond the furthest extreme, as is not hidden from one who has set himself free from the shackle of blind imitation. (And Allah is best knowing of your faith): A parenthetical sentence brought to comfort their hearts and remove the aversion to marrying slave women by explaining that the criterion for boasting is faith, not status and lineage. Many a slave woman’s faith surpasses the faith of many free women.
The meaning is that He—the Exalted—is more knowing than you of the ranks of your faith, which is the axis [of life] in the two abodes, so let that be the focus of your concern. It is also said: It was brought to indicate that apparent faith is sufficient for the validity of marrying a slave woman, and it is not required for that to know the faith with certain knowledge, as there is no way to stand upon realities except for the Knower of the Unseen. (Some of you are from others): Meaning you and your young women are compatible, either in terms of religion or lineage. On the second [interpretation], it would be another objection confirming the comfort from another angle. On the first, it would be an explanation of their compatibility from that perspective following the explanation of their disparity in it. In any case, (Some of you) is a subject (mubtada') and the prepositional phrase is attached to an implied element that occurs as its predicate. Some claimed that (some of you) is the agent of the implied verb. It is said: There is a transposition in the speech, and the estimation is: "Let some of you marry from some of the young women." It is not appropriate to interpret the Book of Allah the Exalted in such a way.
(So marry them with the permission of their people): This is consequential to what preceded it, and for this reason it began with the fa (so), meaning: "So when you have arrived at the clarity of the matter, then marry them," etc. The command was repeated, despite it being understood from what preceded, to increase the encouragement for marrying them, or because what is understood from it is permission, while this is for obligation. The intent of "the people" is the masters. The jurists applied this to whoever has the authority of marriage, even if he is not the owner. They have said: It is for the father, the grandfather, the judge, and the executor to marry off the orphan's slave. However, in al-Zahiriya, [it states] if the executor marries the orphan's slave to his own slave, it is not permissible. In Jami' al-Fusulayn, [it says] the judge does not possess the right to marry off the slave of an absentee. In Fath al-Qadir: The partner in a partnership (mufawada) has the right to marry off the slave, but the partner in 'inan (limited partnership), the mudarib (profit-sharing partner), and the slave who has been given permission [to trade] do not have the right to marry her off, according to Abu Hanifa (may Allah be pleased with him) and Muhammad. Abu Yusuf said: They do possess that. This permission is a condition for us for the validity of marrying a slave; therefore, it is not valid to marry her without permission. The intent of "lack of validity" is the lack of legal effect (nafadh), not the lack of correctness (sihha); rather, it is suspended, like the contract of an unauthorized agent (fuduli). Malik went to this, and it is a narration from Ahmad. Similar to that is the marriage of a slave [himself]. They argued for the lack of validity in both by what Abu Dawud and al-Tirmidhi recorded from the hadith of Jabir, who said—it is a good (hasan) hadith—from the Prophet (peace be upon him) that he said: "Any slave who marries without the permission of his master is a 'ahir." 'Ahr is adultery. This is interpreted as referring to when he has intercourse, not merely the contract; it is a legal adultery, not a jurisprudential one, so the obligation of the penalty (hadd) is not necessarily implied, as it is structured upon jurisprudential adultery, as explained in the branches (furu'). And also because in executing their marriage is their blemish, since marriage is a defect in them, so they do not possess it except with the permission of their master. It was attributed to Imam Malik, but it is not correct, that the marriage of a slave is permissible without the master's permission because he possesses the right to divorce, so he possesses the right to marriage. It was answered by the difference: for divorce is the removal of a defect from himself, contrary to marriage. Ibn al-Humam said: It cannot be said that the slave's confession against himself regarding hadd and retaliation is valid, even though it involves his destruction, let alone his blemish, because we say: He does not enter under the ownership of the master regarding what pertains to the address of the Sharia in commands and prohibitions, such as prayer, washing, fasting, adultery, drinking, and others, except for what the Lawgiver is known to have dropped from him, like Friday prayer and Hajj. Then, these rulings are obligatory as a penalty for committing a prohibited act by Sharia, so the Lawgiver has removed him from his master's ownership in that which he has entered, regarding other than that—as a deterrence against corruption and the greatest of defects. End quote.
Some Hanafis claimed that the verse indicates that slave women may initiate the contract themselves because it considered the permission of the masters, not their contracting. This was challenged by saying: The lack of consideration does not necessitate the consideration of the lack. Perhaps the one contracting is the master or the agent, so it does not necessarily mean their contracting is permitted, as is not hidden. If the slave were owned by two people, for example, it would not be valid to marry her except with the permission of all. In al-Zahiriya, if one of the masters marries off his slave and the husband has intercourse with her, the other has the right to annul it. If he annuls it, he has half of the dowry of a similar woman (mahr al-mithl), and the husband has the lesser of half of the dowry of a similar woman or half of the specified dowry. The ruling for one who is partially emancipated is the ruling of one who is fully enslaved according to the Supreme Imam (may Allah be pleased with him). According to the two [Abu Yusuf and Muhammad], his marriage is valid without permission because he is a free man in debt. (And give them their dowries): Meaning, perform their dowries to them with the permission of their people. This restriction was omitted because it was previously mentioned, not because the conjunction necessitates the participation of the conjoined in the restriction of what it is conjoined to. It is possible that there is an implied genitive in the speech, meaning: "Give their people," and perhaps what preceded is a hint of it. It is said: The point of choosing "give them" over "give them [the people]" despite the mention of the people is, as some verifiers mentioned, that it is an emphasis on the obligation of the dowry and a notification that it is their right from this aspect, and the masters only take it by way of ownership of the right hand. The reason for all of this is that the dowry belongs to the master according to most of the Imams because it is a compensation for his right.
Imam Malik said: The verse is upon its apparent meaning, and the dowry belongs to the slave woman. This necessitates the slave woman being an owner, even though there is no ownership for a slave. So she must be an owner of it by possession, like a slave who is given permission to trade, because making her married is a permission to her; thus, it must be handed to them as is the apparent meaning of the verse. If "dowries" are interpreted as maintenance, there is no need for assuming an estimation, either initially or finally. Likewise, if the saying—the Almighty—(with what is known) is interpreted as what is known in Sharia regarding the permission of the masters. What is known in it is that it is attached to "give them," and the intent is: "Perform to them without procrastination or harm." It is permissible for it to be a state (hal), meaning: "while fulfilling the known [custom], without being delayed." Or it is attached to "marry them," meaning: "Marry them in the known way," i.e., with the permission of their people and the dowry of their equals. (Chaste) is a state, either from the object of "give them," then it means "married," or from the object of "marry them," then it means "virtuous." Interpreting it as "Muslim" is permissible, especially according to the school of the majority who do not permit marrying a non-Muslim slave woman, but this condition was preceded in His saying—the Exalted: (Your young women, the believers), so there is not much benefit in repeating it. The famous meaning here is interpreting "chaste" as virtuous. His saying—the Almighty—(not committing fornication) is an emphasis on it; the intent is not being public with adultery, as Ibn Abbas (may Allah be pleased with them both) said. (And not taking secret lovers) is conjoined to "committing fornication," and (nor) is to emphasize the meaning of negation in (not). "Secret lovers" (akhdan) is the plural of khadn, which is a companion; the intent here is one whom a woman takes as a friend who commits adultery with her. The plural is for correspondence, and the meaning is "not having secrets of adultery." Adultery in the pre-Islamic era was divided into secret and public. It is narrated from Ibn Abbas that the people of the pre-Islamic era used to forbid what appeared of it and say: "It is a disgrace," and they would permit what was hidden and say: "There is no harm in it." For the prohibition of both parts, His saying—the Almighty—was revealed: (And do not approach immoralities, what is apparent of them and what is concealed.) (So if they are chaste): Meaning by husbands, as Ibn Abbas and a group said. Ibrahim read: (hasina) in the active voice, meaning: "they have guarded their chastity and husbands." 'Abd bin Humayd recorded that it was read in that way, then he said: "Her chastity is her Islam." Many scholars went to the view that the intent of chastity in the first reading is also Islam, not marriage. Some of those who intended it from the verse said: The slave woman is not to be punished with hadd if she commits adultery unless she is married to a free man; this was narrated as a school of thought for Ibn Abbas. The lack of hadd before marriage was recounted from Mujahid and Tawus. Al-Zuhri said: It means marriage for her here.
The hadd is obligatory on the Muslim slave woman if she has not married, because of what is in the two Sahihs from Zayd bin Khalid al-Juhani that the Prophet (peace be upon him) was asked about the slave woman if she commits adultery and has not been "chastened" (uhsinat). He said: "Flog her, then if she commits adultery, flog her, then if she commits adultery, flog her, then sell her, even if for a rope of hair." So the married one is punished by the Quran, and the others by the Sunnah. This interpretation was strengthened by the fact that He—the Exalted—stipulated Islam by His saying—the Almighty: (from your young women, the believers), so interpreting what is here as something else is more beneficial, even if it is permissible for it to be an emphasis for the length of the discourse. Some verifiers mentioned that the interpretation of ihsan as Islam is apparent according to the view of Abu Hanifa (may Allah be pleased with him) from the aspect that it is not a condition in marrying a slave woman that she be a Muslim, and that the disbelievers are not addressed with the branches [of Sharia]. This is problematic according to the view of those who believe in the concept of condition among the Shafi'is, for it would necessitate that a disbelieving slave woman, if she commits adultery, is not flogged, and that is not their school of thought, for they establish the hadd upon disbelievers. (Then if they commit an immorality): Meaning, if they do an act of indecency, which is adultery, and that is proven. (Then upon them): Meaning, established upon them by Sharia. (is half of what is upon the chaste women): Meaning the free, virgin women, of the punishment—i.e., the hadd which is flogging a hundred, so its half is fifty. There is no stoning upon them because it cannot be halved. This is a rejection of the illusion that the hadd for them increases with marriage (ihsan), thus falling away the deduction from it that before marriage there is no hadd upon them, as that was narrated from those who preceded. Al-Shihab said: It is known from the explanation of their state the state of slaves by the indication of the text (dalalat al-nass). So there is no room for what was said that it is contrary to what is customary, because what is customary is that women enter under the ruling of men by dependency. It is as if the aspect of it is that the drivers of adultery in them are stronger. This is not a dominance or mentioning by way of dependency until what was mentioned is directed; it is rejected on the face of specification that if it were like that, it would not indicate the ruling of slaves. Rather, the aspect of it is that the speech is about marrying slave women, so it is the requirement of the situation. End quote.
The apparent meaning is that what is intended by the state known by the indication of the text is the state of slaves when they commit an immorality, not absolutely, for the state of slaves is not the state of slave women in the issue of marriage from every aspect, as explained in the books of the branches. 'Abd bin Humayd recorded from Mujahid that it was read: "If they commit and they (feminine) commit an immorality." The fa in (Then if they commit...) is the response to "if," and the second is the response to "if" (in). The second condition with its response is consequential to the existence of the first. (Of the punishment) is in the position of a state from the pronoun in the prepositional phrase, and the operator of it is the operator of its possessor. Abu al-Baqa' said: It is not permissible for it to be a state from (what) because it is genitive by the addition (idafa), so it cannot have an operator. (That): Meaning marrying slave women, is for whoever fears al-'anat among you. (Meaning for whoever fears adultery because of the dominance of desire over him.) From Ibn Abbas (may Allah be pleased with them both), Nafi' bin al-Azraq asked him about 'anat, so he said: "Sin." Nafi' said: "Do the Arabs know that?" He said: "Yes. Have you not heard the saying of the poet: 'I saw you desiring my 'anat (harm) and striving with the striver against me without cause'?" It is said: The root of 'anat is the breaking of a bone after it has been set, so it was metaphorized for every difficulty and harm that befalls a person after his state has been rectified. There is no harm greater than falling into sins by committing the most obscene of evils. It is understood from the speech of many linguists that it is literally "sin," and likewise "effort and hardship." From it is "a difficult ascent" (akamah 'anwat), meaning difficult to climb. Al-Zajjaj interpreted it here as "destruction." What the majority are upon is what preceded, which is also narrated from Ibn Abbas (may Allah be pleased with them both). It is said: The intent is the hadd because if he is with her, he fears he will fall into it, so he will be punished. The first opinion was strengthened by the abundance of those who went with it, along with the indication in it that what is appropriate for the state of the believer is the fear of adultery leading to the punishment. In this is an implication that what is feared by him is the hadd, not what causes it. In any case, it is another condition for the validity of marrying slave women according to al-Shafi'i—upon him be mercy. The school of the Supreme Imam (may Allah be pleased with him) is that it is not a condition, but it is guidance to what is more appropriate. (And that you are patient): Meaning, your patience away from marrying slave women while remaining chaste (is better for you): than marrying them, even if it is permitted for you, because the right of the masters over them is stronger, so they are not exclusively for the husbands like the free women, for they have the power to employ them in travel and at home, and to sell them to the present and the absent. In that is a great hardship on the husbands, especially if they have children from them. And because they are degraded and debased, going out and coming in, and that is disgrace and humiliation spreading to the one who marries them, and no jealous person could hardly bear that. And because in marrying them is exposing the child to slavery. 'Abd al-Razzaq and others recorded from 'Umar bin al-Khattab (may Allah be pleased with him) that he said: "If a slave marries a free woman, half of him has been emancipated, and if a free man marries a slave woman, half of him has been enslaved." Sa'id bin Mansur recorded from Ibn Abbas (may Allah be pleased with them both) that he said: "The husband of a slave woman does not struggle away from adultery except a little." From Abu Hurayra and Ibn Jubayr [is] the same. Ibn Abi Shayba recorded from 'Amir that he said: "Marrying a slave woman is like carrion, blood, and swine flesh; it is not lawful except for the one forced." In the Musnad al-Daylami and al-Firdaws from Abu Hurayra (may Allah be pleased with him) [it is recorded that] he said: The Messenger of Allah (may Allah be pleased with him) said: "Free women are the righteousness of the house, and slave women are the ruin of the house." The poet said: "And whoever does not have a housekeeper in his house, that is a house, no father for you, that is lost." The other said: "If there is not in a man's home a free woman to manage it, the interests of his house are lost." (And Allah is forgiving): Meaning, abundant in forgiveness, so He forgives whoever is not patient and marries them. He only expressed it in this way to repel [them] from it, until it is as if it is a sin. (Merciful): Meaning, abundant in mercy, so for that reason He permitted for you what He permitted.
(This is from the chapter of summary indication in some of the previous verses: He—the Exalted—indicated by His saying—Almighty is the Speaker: (And do not marry those whom your fathers married) to the prohibition of manipulating the lower matters, which are the mothers that the fathers have manipulated in the higher matters, except for what has passed of the divine arrangement in the pairing of spirits for the necessity of perfections. For the leaning towards the lower world necessitates the wrath of the Truth—Exalted is He. He indicated—Exalted is He—by the prohibition of the chaste women—meaning matters that the souls lean towards—to the prohibition of the seeker desiring a station that another has attained, and he does not have the capacity to attain it. From here, the speech was met with the sa'q (fainting) when he asked for the vision, and the poet of the Muhammadan Truth said: "I am not one who desires that [the answer] returns with 'You shall not see,' and I am not at a Mount so that the cracking moves me." My master Ibn al-Farid said on her tongue: "And if I ask You that I see You in reality, then listen, and do not make my answer 'You shall not see'." Indeed, some of the veiled ones have done well when they say: "If you cannot do a thing, then leave it and pass beyond it to what you can do." Al-Naysaburi said: "The chaste women of the world—Allah the Exalted has prohibited them to His pure servants and permitted them for them by His saying: (Except what your right hands possess) taking necessary matters of food and drink, (chaste) meaning free [souls] from the world and what is in it, (not committing fornication) in seeking [worldly] things. Then He commanded them, when they enjoy anything of that, to perform its rights of gratitude, obedience, and remembrance, for example." And on this pattern is what is in the rest of the verses. There did not appear to me regarding daughters, sisters, aunts, nieces, nursing mothers, sisters through nursing, step-daughters, and joining two sisters [in marriage] what the heart expands to and the consciences delight in. There is no doubt for me that Allah the Exalted has servants who know Him in reality, but they are in the corners, and how many are in the corners of hidden treasures! And Allah speaks the truth, and He guides the path.
