Al-Baqarah: (237) And if you divorce them before you have touched them...

Know that the Almighty has discussed the ruling concerning a divorced woman who was not touched, if no dower (mahr) was stipulated for her. Now, He speaks about the divorced woman who was not touched, but for whom a dower was stipulated. There are several issues in this verse:

Issue 1: The Stipulation of the Dower through Seclusion (Khulwah)

The position of Al-Shafi'i is that seclusion (khulwah) does not establish the dower. Abu Hanifa, however, holds that a valid seclusion establishes the dower.

By valid seclusion, he means that they were alone together with no physical or religious impediment present.

• Physical impediments include: imperforate hymen (ratq), a barrier (qaran), or illness. Or, if a third person was present, even if asleep.
• Religious impediments include: menstruation, post-natal bleeding (nifas), obligatory fasting, obligatory prayer, or being in the state of ihram (whether obligatory or voluntary pilgrimage).

Al-Shafi'i's proof: Divorce before consummation necessitates the forfeiture of half the stipulated dower. Since divorce occurred here before consummation, it is necessary to rule that half the dower is forfeited.

Regarding the Almighty's saying: {And if you divorce them before you have touched them, and you have stipulated a dower for them, then [you owe] half of what you stipulated} (Al-Baqarah: 237).

The phrase {then [you owe] half of what you stipulated} is not a complete statement; another element must be implied to complete the meaning. Either it implies: "then half of what you stipulated is forfeited," or it implies: "then half of what you stipulated is due." The former is the intended meaning, and the latter is weak for several reasons:

1. What is conditioned by the word if (in) is apparently negated. If we interpret it as establishing obligation, we ignore the implication of the condition, as the condition (touching) is not negated beforehand. However, if we interpret it as forfeiture, we adhere to the implication of the condition, as the condition is negated beforehand.
2. The phrase {and you have stipulated a dower for them} implies the obligation of the entire dower, because once it is undertaken, the whole amount is due based on the Almighty's saying: {Fulfill the contracts} (Al-Ma'idah: 1). Therefore, there is no need to state that half is established, as the prerequisite for the whole implies the prerequisite for half. What requires explanation is the forfeiture of half, because when the prerequisite for the whole dower exists, the apparent ruling is the obligation of the whole. Thus, stating the forfeiture of part in this context is what needs clarification, making the interpretation of the verse as stating forfeiture more appropriate than stating obligation.
3. The verse indicating the obligation to pay the full dower has already preceded, such as His saying: {And it is not lawful for you to take back anything of what you have given them} (Al-Baqarah: 129). Therefore, interpreting this verse as stating the forfeiture of half is more appropriate than interpreting it as stating the obligation of half.
4. What is mentioned in the verse is divorce before touching. Divorce occurring before touching is consistent with the forfeiture of half the dower, not with the obligation of anything. Since what is mentioned in the verse is consistent with forfeiture, not obligation, implying forfeiture is more appropriate.

We elaborated on these points because some scholars argue that the meaning of the verse is: "then half of what you stipulated is obligatory," and that specifying half as obligatory does not imply the forfeiture of the other half, except through the dalil al-khitab (argument from the contrary), which Abu Hanifa does not accept as proof. Our detailed explanation aims to refute this objection.

The second premise is that divorce occurred before touching. The term touching (masees) means either literal physical contact or it is a metaphor for sexual intercourse. In either case, divorce occurred before it.

Abu Hanifa's proof: He cites the Almighty's saying: {And if you intend to exchange a wife in place of another, and you have given one of them a great amount [of wealth], do not take back from it anything} (An-Nisa: 20) until His saying: {while you have already been intimate with each other} (An-Nisa: 21).

The basis for this argument is twofold:

1. The Almighty forbade taking back the dower without distinguishing between divorce or no divorce, unless we agree that it is restricted to divorce before seclusion. Whoever claims this restriction must provide proof.
2. Allah forbade taking back the dower and attributed the reason to ifda' (intimacy/being alone together), which is derived from fadaa' (open space/solitude). Thus, we know that seclusion establishes the dower.

Our response to this: The verse they cite is general, whereas the verse we rely upon is specific. The specific ruling takes precedence over the general one. And Allah knows best.

Issue 2: The Stipulation of the Dower

The phrase {and you have stipulated a dower for them} is a circumstantial clause (hal) modifying the object of {if you divorce them}. The meaning is: You divorced them while you had stipulated a dower for them.

Regarding the Almighty's saying: {unless they remit [their right]...}

There are two issues concerning this exception:

The nun (the final letter) in {ya'fūna} (they remit) is not dropped even though the preceding particle an (that) is a subjunctive marker for verbs. This is because {ya'fūna} refers to the feminine plural (the women). Therefore, the verb form is the same in the indicative, subjunctive, and jussive moods.

The nun in {ya'fūna} when the verb is attributed to the feminine plural pronoun is the pronoun itself. If the verb were attributed to the masculine plural, the nun would be a sign of the indicative mood, and it would be dropped in the subjunctive. What is dropped in {ya'fūna} when referring to men is the waw that is the lam al-fi'l (the final root letter), not the waw that is the plural marker. And Allah knows best.

The meaning is: unless the divorced women remit their right to the dower from their husbands, so they do not demand half the dower. The woman might say: "He did not see me, nor did I serve him, nor did I benefit from him. How then should I take anything from him?"

Regarding the Almighty's saying: {or he in whose hand is the knot of marriage remits}

There are two issues concerning this:

There are two opinions regarding this phrase:

1. It refers to the husband. This is the view of Ali ibn Abi Talib (peace be upon him), Sa'id ibn al-Musayyab, many Companions and Successors, and it is the view of Abu Hanifa.
2. It refers to the guardian (wali). This is the view of Al-Hasan, Mujahid, 'Alqama, and the companions of Al-Shafi'i.

Proof for the First Opinion (The Husband):

1. The guardian is not permitted to gift away his female ward's dower, whether she is young or adult. Thus, this verse cannot be interpreted as referring to the guardian.
2. What is in the guardian's hand is the marriage contract ('aqd). Once the contract is made, the knot ('uqdah) is established. The structure of the word fi'lah (like aklah - a bite) indicates the result (the thing eaten). The masdar (verbal noun) is al-'aqd (like al-akl - eating). It is known that the knot established after the contract is in the husband's hand, not the guardian's.
3. The phrase {he in whose hand is the knot of marriage} means he whose knot of marriage is established for him and not for someone else. Similar to {and Paradise will be his abode} (An-Nazi'at: 40), meaning the Paradise established for him, not for another.
4. It is narrated from Jubayr ibn Mut'im that he married a woman and divorced her before consummation, paying the full dower, saying: "I am more deserving of remission." This indicates that the Companions understood the remission mentioned in the verse to originate from the husband.

Proof for the Second Opinion (The Guardian):

1. What originates from the husband is giving her the entire dower, which is considered a gift (hibah). A gift is not termed 'afw (remission/forgiveness).
   • The first group's response: (a) It was common for the husband to pay the dower upfront upon marriage. If he divorces her, he is entitled to demand half back. If he refrains from demanding it, he has remitted it. (b) It is called 'afw by way of correspondence (mushakalah). (c) 'Afw can mean facilitation. It is said: "So-and-so found the money 'afwan safwan" (easily and freely obtained). In this sense, the husband's remission is sending her the entire dower as an act of facilitation.
   • The second group's response to the first group: (a) The husband's remission in that manner only occurs under certain assumptions. Allah commanded general remission, and applying a specific interpretation to a general command is contrary to the principle. (b) The remission from the woman is ibra' (releasing a debt), which is true remission. As for what comes from the man, it is purely a gift; how can it be called 'afw? (c) If 'afw meant facilitation, then anyone who facilitates something for another would be said to have remitted it, which is clearly not the case.
2. The mention of the husband has already occurred in {And if you divorce them before you have touched them}. If the phrase {or he in whose hand is the knot of marriage remits} also referred to the husband, the address would have been in the second person (e.g., "or you remit"). Since the third person is used (absence/hidden address), we know the intended party is someone other than the husband.
   • The first group's response: The shift from direct address to the third person is to draw attention to the meaning that motivates the husband to remit. The meaning is: unless she remits, or the husband who held her by the knot of marriage—preventing her from other marriages—remits, especially if the separation was not due to her fault, but the husband initiated the separation. It is fitting that he should not deduct from her dower and should complete her stipulated amount.
3. The husband does not possess the knot of marriage at all. Before marriage, the husband was a stranger to the woman and had no power to dispose of her affairs. Thus, he had no power to contract her marriage. After marriage, the marriage has occurred; he has no power to create what already exists, nor does he have the power to dissolve the marriage (that is Allah's prerogative in divorce). Allah attributed the remission to the one who possesses the knot of marriage and has the power over the marriage contract. Since the husband has no power over the creation of the marriage contract, he is not the intended party. The guardian, however, does have the power to contract her marriage. Therefore, the guardian is intended.

• The second group's response to the first group's proofs: * Regarding Proof 1 (Action attributed to the cause): An action can be attributed to the actor when directly performing it, or when acting through a cause. For example, "The prince built a house." Women generally refer their important matters and interests regarding marriage entirely to the opinion of their guardians. If the remission occurs through the guardian's choice and effort, it is attributed to him. * Regarding Proof 2 ('Uqdah vs. 'Aqd): We can say that 'uqdah (knot) can mean 'aqd (contract), as in {and do not resolve on the knot of marriage} (Al-Baqarah: 235). Even if 'uqdah means the thing tied, that thing was established through the 'aqd. Since the marriage contract was initially in the guardian's hand, the knot of marriage is also in his hand as a result and effect of that contract. * Regarding Proof 3 (The knot must be for himself): This restriction is not implied by the wording. If one says, "So-and-so has the authority to command and forbid," it does not mean he commands and forbids himself, but rather that he commands and forbids others. Similarly here.

Al-Shafi'i can use this verse to argue that marriage is not valid except through a guardian. This is because the majority of exegetes agree that the intended party in {or he in whose hand is the knot of marriage remits} is either the husband or the guardian. Since interpretation as the husband was refuted (as the husband has no power over the creation of the marriage knot), it must refer to the guardian.

If this is established, we say that the phrase {he in whose hand is the knot of marriage} implies exclusivity, because when it is said, "He has the authority to command and forbid," it means it is in his hand and not in anyone else's, just as {To you is your religion, and to me is my religion} (Al-Kafirun: 6) means "not to others." If this is the case, the knot of marriage must be in the hand of the guardian, and not in the hand of the woman, which is the desired conclusion. And Allah knows best.

Regarding the Almighty's saying: {And that you remit is nearer to piety}

There are issues concerning this:

This is an address to both men and women, although the masculine form prevails when they are mentioned together. The reason for prioritizing the masculine is that the masculine is the origin (asl) and the feminine is the derivative (far')—both linguistically and conceptually.

• Linguistically: You say qā'im (standing, masculine) and then add the feminine marker to say qā'imah (standing, feminine). The masculine form is the basis.
• Conceptually: Perfection belongs to the masculine and deficiency to the feminine. Therefore, whenever masculinity and femininity are combined, the masculine aspect takes precedence.

The word {that} (an) is in the nominative case (raf') as the subject of the sentence (mubtada'). The implied structure is: "And remission is nearer to piety." The preposition lam (in lil-taqwā) means "towards" (ilā).

The meaning of the verse is: The remission by some of you toward others is nearer to achieving the essence of piety. This is so for two reasons:

1. Whoever allows the relinquishing of his right is a benefactor (muhsin). Whoever is a benefactor deserves reward, and that reward negates and removes what is lesser than it, which is punishment.
2. This action leads one to abandon injustice, which is the true nature of piety. Whoever relinquishes a right that is rightfully his, seeking closeness to his Lord, is further away from unjustly taking what is not his right from others.

Then the Almighty says: {And do not forget the bounty between you}. This does not mean forbidding forgetfulness (as that is not within human control), but rather forbidding the abandonment of bounty and favor between you. This is because when a man marries a woman, her heart becomes attached to him. If he divorces her before consummation, this causes her distress. Furthermore, if the man is obliged to give her a dower without having benefited from her at all, this causes him distress regarding her. Therefore, the Almighty encourages each party to perform an action that removes that distress from the heart of the other: He encourages the husband to soothe her heart by giving her the entire dower, and He encourages the woman to relinquish the dower entirely.

Finally, the Almighty concludes the verse with what serves as a warning regarding known customs: {Indeed, Allah, of what you do, is Seeing}.

The Sixteenth Ruling

The Ruling on Maintaining the Prayers and the Middle Prayer

{Maintain your prayers, especially the middle prayer, and stand up for Allah in obedience.} (Al-Baqarah: 238)