Tafsir of Al-Baqarah 2:236

Surah Al-Baqarah (The Cow): Verse 236

"There is no blame upon you if you divorce women who have not touched [consummated the marriage with] them and have not stipulated for them a dower. Then give them a provision; the wealthy according to his means, and the straitened according to his means, a provision in a recognized manner."

Know that the categories of divorced women are four:

1. Divorced after Consummation and Stipulated Dower: Allah has already mentioned the rulings for this group previously: nothing should be unjustly taken from them upon separation, they are entitled to the full dower, and their waiting period (iddah) is three menstrual cycles (quru').
2. Divorced before Consummation and without Stipulated Dower: This is the group mentioned in the current verse. Allah stated that they have no dower, but they are due a provision (mut'ah) according to what is right.
3. Divorced after Stipulated Dower but before Consummation: This group is mentioned in the verse immediately following this one: {And if you divorce them before you have touched them and you have already stipulated a dower for them, then [give them] half of what you stipulated...} (Al-Baqarah: 237). Furthermore, Allah clarified the ruling regarding the waiting period for women not yet consummated in Surah Al-Ahzab: {O you who have believed, when you marry believing women and then divorce them before you have touched them, then there is not for you upon them any waiting period to count. So give them a provision and release them in a handsome manner.} (Al-Ahzab: 49).
4. Divorced after Consummation but without Stipulated Dower: The ruling for this group is mentioned in {So for those with whom you have enjoyed [sexual relations] among them, give them their due compensation [dower]...} (An-Nisa: 24). Analogical reasoning (Qiyas) also supports this, as the consensus (ijma') is that a woman with whom intercourse occurred through a misunderstanding (shubhah) is due the dower equivalent to her peers (mahr al-mithl); thus, one married correctly is more deserving of this ruling.

This classification serves to highlight the subject of the current verse. Alternatively, we can summarize the categories:

The marriage contract necessitates a compensation (badal) in all cases. This compensation is either explicitly mentioned or unmentioned.

• If the compensation is mentioned: If consummation occurs, the full amount is established (Rulings mentioned prior to this verse). If consummation does not occur, half of the mentioned amount is forfeited upon divorce (Rulings in the verse following this one).
• If the compensation is not mentioned:
  • If consummation does not occur, this is the woman discussed in the current verse: she has no dower, no waiting period, but is due the provision (mut'ah).
  • If consummation does occur, her ruling is not explicitly mentioned in these verses, but the scholars agreed she is due the dower equivalent to her peers (mahr al-mithl).

Having clarified this division, let us return to the exegesis.

{There is no blame upon you if you divorce women...}

This explicitly permits divorce. Some of our colleagues use this verse to argue that combining three divorces is not forbidden. They reason that {There is no blame upon you if you divorce women} encompasses all types of divorce, evidenced by the fact that one can validly make an exception for three divorces: "There is no blame upon you if you divorce women, except if you divorce them three times, for then blame is established." Since the function of an exception is to exclude what would otherwise be included, this proves the phrase covers both single and triple divorces.

However, I find this line of reasoning weak. The verse indicates permission to bring this act (divorce) into existence. It is sufficient for the ruling to apply if the act occurs once. This is why we say an absolute command does not imply repetition (e.g., if one says to his wife, "If you enter the house, you are divorced," the oath is established only for one instance). Therefore, this phrase does not necessarily cover the case of triple divorce.

As for the exception they cite, we counter it with the analogy of a command, which, by consensus among verified scholars, does not imply repetition, yet one can validly say: "Pray, except at such-and-such a time," or "Fast, except on such-and-such a day." (And Allah knows best.)

{...if you divorce women before you have touched them...}

Regarding {ما لم تمسوهن} (before you have touched them), there are two issues:

Issue 1: The Reading of Tamāsūhunna

Al-Hasan and Al-Kisā'ī recited it with an alif (تماسوهن - tamāsūhunna), implying mutual touching (Mufā'alah). The rest recited it without the alif (تمسوهن - tamussūhunna).

• Argument for Tamāsūhunna (Mutual): Each body touches the other's body; they touch each other mutually. This is supported by the verse in Surah Al-Mujadilah: {before they touch each other} (يتماسا), which is agreed upon.
• Argument for Tamussūhunna (Simple Action): This is supported by the consensus on the reading {and no man has touched her} (لم يمسسني بشر) in Al 'Imran. Furthermore, most terms conveying this meaning use the simple verb form without the mufā'alah structure, such as {whom no man or jinn has touched before them} (لم يطمثهن) in Ar-Rahman, and {then marry those that please you of [other] women} (فانكحوهن) in An-Nisa (where the action is primarily by the man). Moreover, the intended meaning here is sexual intercourse, which is the man's action. The second verse (Al-Mujadilah) confirms that the intended meaning of touching is intercourse. As for the tamāsa mentioned in the context of Zihār (in Al-Mujadilah), it refers to touching that is not intercourse, which is forbidden in Zihār. Some who read tamāsūhunna argue it means tamussūhunna because the fa'ala form can sometimes imply a simple action, like ṭāraqt an-na'l (I fitted the sole) or ʿāqabtu al-liṣṣ (I punished the thief).

Issue 2: Apparent Contradiction

One might argue that the verse implies that the removal of blame is conditional upon not having touched them, suggesting that blame is incurred after touching. This is incorrect, as divorce is permissible even after consummation.

Responses:

1. The Absolute Permission: The verse indicates the absolute permissibility of divorce before touching. This absolute permission is not established after touching, as divorce is forbidden during menstruation or in a period of purity following intercourse. Since the verse establishes divorce as permissible without restriction (i.e., absolutely), and absolute permission is only achieved when there is no touching, the apparent meaning of the text is sound.
2. The Meaning of Mā: Some say that mā in {mā lam tamussūhunna} means allatī (which/those who). The meaning becomes: "There is no blame upon you if you divorce women who have not touched you." Since mā here is a static noun whose case endings and number are not specified, it is not a conditional particle, thus resolving the question.
3. Al-Qaffāl's View (Focus on Dower): This view centers on the idea that the "blame" (جناح) mentioned in this verse refers specifically to the obligation of the dower. The verse is interpreted as: "There is no [obligation of] dower upon you if you divorce women unless you have touched them or you have stipulated a dower for them." Thus, if both conditions (touching or stipulation) are absent, no dower is due. While this interpretation is plausible, we must justify equating "blame" with "dower."
   • Justification: The linguistic root of janāḥ (blame/wing) is "heaviness" (e.g., a ship inclines due to heaviness). Sin is called janāḥ because of the burden it carries. Since the obligation to pay money is a burden, it is linguistically possible for janāḥ to mean dower.
   • Evidence for this meaning: a. Allah limits the removal of blame: {There is no blame upon you if you divorce women before you have touched them or stipulated a dower for them}. This implies that the blame (dower obligation) must be established upon the occurrence of one of these two things. Since the blame established by touching or stipulation is the obligation of the dower, it follows that the blame negated at the beginning is the obligation of the dower. b. Divorce before touching falls into two categories: (1) Before touching and before stipulating dower (this verse). (2) Before touching but after stipulating dower (the next verse: {And if you divorce them before you have touched them and you have already stipulated a dower for them}). In the second case, half the stipulated amount is required. Since this second case is the counterpart to the first, the blame negated in the first must be the obligation that is established in the second—which is the dower obligation.

We previously mentioned there are four categories of divorced women. This verse covers the rulings for three of them. By interpreting the verse as: "No dower is due except upon touching or stipulation," we deduce:

1. The woman not touched and not stipulated for has no dower (covered here).
2. The woman touched but not stipulated for has dower (implied).
3. The woman stipulated for but not touched has dower (implied).

The fourth category (touched and stipulated for) is covered in the preceding verses. Thus, these verses completely cover the rulings for all four categories. This is one of the subtleties of the text, and praise be to Allah for it.

Issue 3: Validity of Marriage without Dower

Abu Bakr al-Aṣamm and Al-Zajjāj held that this verse proves that a marriage contract without a dower is permissible. Al-Qāḍī argued that it proves validity, but not necessarily permissibility.

• Proof of Validity: If the contract were invalid, divorce would not be legislated, nor would the provision (mut'ah) be obligatory.
• Argument against Permissibility: Validity does not necessitate permissibility. For example, divorce during menstruation is forbidden, yet it occurs and is valid.

Issue 4: Meaning of "Touching"

The scholars agreed that "touching" (مسيس) here means sexual intercourse. Abu Muslim stated that Allah used the term touching as a euphemism for intercourse as a refinement for the servants, encouraging them to choose the best terminology in their discourse. (And Allah knows best.)

{...or have not stipulated for them a dower.}

This means setting a specific amount of dower that he obligates himself to pay, as farḍ linguistically means estimation or setting a measure. Many commentators suggest that or (أو) here means and (و), implying: "unless you have touched them and you have not stipulated a dower for them," citing verses like {or they increase} (As-Saffat: 147). However, upon reflection on our summary above, this interpretation is forced and certainly incorrect. (And Allah knows best.)

{Then give them a provision (mut'ah)...}

Since Allah established that there is no dower when there is no touching and no stipulation, He then established that the provision (mut'ah) is obligatory for her. The explanation of the term mut'ah has already been covered in the exegesis of {So whoever performs Hajj or 'Umrah in the state of Ihram...} (Al-Baqarah: 196).

Issue 1: Who is Due Mut'ah?

Divorced women are of two types: divorced before consummation, and divorced after consummation.

• Divorced before Consummation:
  • If no dower was stipulated, she receives mut'ah according to this verse.
  • If a dower was stipulated, she receives no mut'ah, because Allah obligated half the dower for her and did not mention mut'ah. If it were obligatory, He would have mentioned it. Ibn 'Umar said: Every divorced woman receives mut'ah except the one stipulated for but not entered upon; half the dower suffices for her.
• Divorced after Consummation (whether dower was stipulated or not): There are two opinions on whether she deserves mut'ah.
  • The Old Opinion (Abu Hanifa): No mut'ah for her, as she is entitled to the dower, similar to the woman stipulated for but not entered upon.
  • The New Opinion (Ali, Al-Hasan, Ibn 'Umar): Yes, she receives mut'ah. The evidence is {And for divorced women is a provision according to what is equitable} (Al-Baqarah: 241), and {So come, I will provide for you and release you in a handsome manner} (Al-Ahzab: 28), which concerned women the Prophet (PBUH) had entered upon. This case is unlike the woman stipulated for but not entered upon, because the latter received the dower not as compensation for the enjoyment of the private parts, so she does not deserve mut'ah. The woman divorced after consummation received the dower as compensation for the enjoyment of the private parts, so mut'ah is due to compensate for the distress of separation.

Issue 2: Is Mut'ah Obligatory?

The view of Al-Shāfi'ī and Abu Hanifa is that mut'ah is obligatory, as are the views of Shurayh, Al-Sha'bī, and Al-Zuhri. It is reported that the seven jurists of Medina did not consider it obligatory; this is the view of Mālik.

• Argument for Obligation (Our view): The command {And give them a provision} implies obligation. Also, {And for divorced women is a provision} establishes it as a right or something akin to ownership.
• Argument against Obligation (Mālik's view): Allah concludes the verse by saying {as a duty upon the doers of good} (حقا على المحسنين). This suggests it is an act of benevolence, which is only called benevolence if it is not obligatory. If one pays a debt owed, one is not called "good" for it. Furthermore, {There is no way against the doers of good} (At-Tawbah: 91) indicates non-obligation.
• Rebuttal: The verse you cite supports our view because Allah said {as a duty upon the doers of good} (على), which denotes obligation. When something is described as a right upon someone, it implies obligation, not recommendation.

Issue 3: Definition of Mut'ah

The essence of mut'ah (provision/enjoyment) is something that is utilized temporarily, ending soon after. This is why the world is called matā', and pleasure is called tamattu' because it ends quickly and lasts only a short while.

{...the wealthy according to his means, and the straitened according to his means...}

Issue 1: Definitions

• Al-Mūsi' (The Wealthy): The rich person who is in ease regarding his wealth. The term awsa'a means his wealth increased and his situation expanded. {And indeed, We are the expanders} (Adh-Dhāriyāt: 47).
• His Means (قدره): His capacity and ability. The word qadrahu (his measure) implies the omission of a word like "capacity" (طاقته).
• Al-Muqtar (The Straitened): The one in difficulty due to poverty; the poor one. Iqtara means he became poor.

Issue 2: Readings of Qadrahu

Ibn Kathīr, Nāfi', and Abū Bakr (from 'Āṣim) read it with a quiescent dāl (قَدْرَهُ - qadrahu). The rest read it with a fatḥa (قَدَرَهُ - qadarahu). Both are valid linguistic forms for all meanings of measure/estimation. (The text then lists various usages of the root Q-D-R showing that both vocalizations are permissible in different contexts, citing verses like {And the torrent flowed according to its measure} (Ar-Ra'd: 17) and {And they have not appraised Allah with His true appraisal} (Al-An'am: 91)).

Issue 3: Estimation of Mut'ah

The verse {the wealthy according to his means, and the straitened according to his means} indicates that the estimation of mut'ah is left to Ijtihād (independent reasoning), similar to the maintenance (Nafaqah) Allah obligated for wives.

• Al-Shāfi'ī's view: Recommended for the wealthy is a servant, for the average person thirty dirhams, and for the straitened, a simple covering (muqni'ah). It is narrated from Ibn 'Abbās that the maximum mut'ah is a servant, and the minimum is a simple covering, and any amount given between these extremes is permissible for both the rich and the poor.
• Abu Hanifa's view: Mut'ah should not exceed half the mahr al-mithl (dower of peers). His reasoning: the status of a woman for whom a dower is stipulated is better than one for whom no dower is stipulated. Since she is not entitled to more than half the stipulated dower if divorced before consummation, it is more appropriate that she is not entitled to more than half the equivalent dower. (And Allah knows best.)

{...a provision in a recognized manner (bil-ma'rūf)...}

Issue 1: Considering Whose Status

The meaning is that the provision must be according to the husband's state of wealth or poverty. Scholars differed on whose status should be considered:

• View 1 (Al-Qāḍī): Both the husband's status and the wife's status should be considered.
• View 2 (Abu Bakr Al-Rāzī): For mut'ah, the husband's status is considered. For mahr al-mithl and nafaqah, the wife's status is considered. Abu Bakr cited {the wealthy according to his means} as evidence for considering the husband. Al-Qāḍī cited {in a recognized manner} (bil-ma'rūf), arguing that it implies consideration of both statuses, as it is not recognized practice to equate a noblewoman with a lowly one.

Issue 2: Grammatical Analysis of Matā'an and Ḥaqqan

• متاعا (matā'an): This is an emphatic accusative (tawkīd) for {And give them a provision} (متعوهن), meaning: "Provide for them with a recognized provision."
• حقا (ḥaqqan): It is an adjective describing matā'an (a required provision), or it means "a right incumbent upon the doers of good." Alternatively, it is in the accusative case as an adverbial state (ḥāl) modifying the definite noun qadrahu, with the preceding adverbial phrase acting as the operative factor. Or, it is in the accusative case by abrupt designation (qaṭ') [i.e., treated as an independent object].

{...as a duty upon the doers of good.}

There are several reasons why this phrase was specifically mentioned:

1. Benefit for the Doer of Good: Only the doer of good benefits from this clarification, similar to {You are only a warner to those who fear it} (An-Nāzi'āt: 45).
2. Path of the Believer (Abu Muslim): The meaning is that whoever intends to be among the doers of good, this is their path. The doer of good is the believer, so the meaning is that acting upon what is mentioned is the way of the believers.
3. Duty to Self: It is a duty (ḥaqq) upon the doers of good towards themselves in hastening to obey Allah.

{And if you divorce them before you have touched them and you have already stipulated a dower for them, then [give them] half of what you stipulated, except if they forgo [their right] or he forgoes [his right] the one in whose hand is the marriage contract. And that you forgo is nearer to piety. And do not forget the bounty among yourselves. Indeed, Allah, of what you do, is Seeing.}