| An-Nisā’ (The Women): Verses (20 - 21)

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Issues Arising from the Verses

When the Almighty permitted harming wives if they commit an indecency (as mentioned in the preceding verse), in this verse He clarifies the prohibition of causing harm when no indecency has occurred, saying: {And if you desire to exchange one wife for another}.

It is narrated that some men, if they desired to marry another woman, would falsely accuse their current wife of indecency to force her to redeem herself by returning what she received as dower, so that he could marry the woman he desired. Allah says: {And if you desire to exchange one wife for another}. The Qintār (القنطار) refers to a great amount of wealth, as explained previously in His saying: {and heaps of stored-up gold and silver} (Āl ‘Imrān: 14).

Some scholars argue that this verse indicates the permissibility of exaggerating the dower. It is narrated that ‘Umar (may Allah be pleased with him) stood on the pulpit and said: "Be warned, do not exaggerate the dowers of your women." A woman stood up and said: "O Ibn al-Khaṭṭāb! Allah permits us, yet you forbid it? And you cite this verse!" ‘Umar replied: "All people are more knowledgeable than ‘Umar," and he retracted his dislike for exaggeration.

However, in my view, the verse does not indicate the permissibility of exaggeration. This is because His saying {And if you desire to exchange} does not imply that giving a Qintār is permissible. Just as His saying: {If there were therein any deities other than Allah, there would have been ruin in both} (Al-Anbiyā’: 22) does not prove the existence of other deities, similarly, making something a condition for another does not necessitate that the condition itself is permissible to occur. The Prophet (peace be upon him) said: (For the one whose relative is killed, his family has the choice between two things), yet this does not necessitate the permissibility of killing. Similarly, a man might say: "If God were a body, He would be created," which is true, but it does not mean that our statement "God is a body" is true.

This verse applies whether the husband has paid the dower or not. This is because the marriage contract was established upon that dower in the sight of Allah, so there is no difference between whether the dower was actually paid or not.

Abū Bakr al-Rāzī used this verse as evidence that valid seclusion establishes the dower. He argued that since Allah prohibited the husband from taking anything back from her dower, this prohibition must remain in effect after seclusion, as it was before seclusion. He argued that it cannot be specified by the verse: {And if you divorce them before you have touched them and you have already set for them an obligatory share, then [give them] half of what you have set} (Al-Baqarah: 237). This is because the Companions differed on the meaning of touching (muss): ‘Alī and ‘Umar interpreted touching as seclusion, while ‘Abdullāh interpreted it as sexual intercourse. Since there is a difference of opinion, it cannot be used to restrict the generality of this verse.

The Response: This verse mentioned here is specific to what occurs after intercourse, evidenced by His saying: {And how could you take it back when you have already gone in unto each other?} (An-Nisā’: 21). And the mutual intimacy (ifḍā’) of some of you to others is sexual intercourse, according to the majority of commentators, and we will present evidence for the correctness of this view.

Know that bad conduct (sū’ al-‘ishrah) can be due to the husband or the wife.

1. If it is due to the husband: It is disliked for him to take anything from her dower because His saying: {And if you desire to exchange one wife for another, and you have given one of them a great amount [of wealth], then do not take back from it anything} clearly indicates that if the marital discord (nushūz) is from his side, he is forbidden from taking anything back from her dower. However, if a khul‘ (dissolution initiated by the wife in exchange for compensation) occurs, the husband is entitled to the compensation for the khul‘, just as a sale concluded during the call to prayer is forbidden, yet it still results in ownership.
2. If the discord is due to the wife: Then taking compensation for the khul‘ becomes permissible, based on His saying: {...unless they commit an evident immorality} (An-Nisā’: 19), which implies that if she commits an evident immorality, he may seek compensation.

Then the Almighty says: {Are you taking it through slander and manifest sin?}

Buhtān linguistically means a lie directed at someone with the intent of confrontation and stubbornness. Its root implies bewildering someone due to the magnitude of the lie. Thus, buhtān is a lie that bewilders a person due to its falsehood. Included in this is the Hadith: (If you confront your brother with something that is not in him, you have slandered him.)

There are several views on why buhtān is in the accusative case:

1. Al-Zajjāj: Buhtān here is a verbal noun (maṣdar) used in place of a circumstantial adverb (ḥāl). The meaning is: "Are you taking it while being slanderers and sinners?"
2. The Author of Al-Kashshāf: It is possible that it is accusative because it functions as an object of purpose (maf‘ūl lah), even if it is not the true objective, similar to saying: "He sat out the fight out of cowardice (jubn)."
3. By dropping a preposition: Meaning, "with slander" (bi-buhtānin).
4. By implied meaning: Meaning, "You are committing slander and manifest sin by doing so."

1. Allah ordained that dower for her; whoever takes it back is effectively saying that it was not ordained, which constitutes slander (buhtān).
2. At the time of the contract, he guaranteed to deliver that dower to her and not take it back. If he takes it back, his first statement becomes slander.
3. As mentioned, their custom was that if they wanted to divorce a wife, they would falsely accuse her of indecency so she would fear and buy her freedom from him with that dower. Since this action was common, the act of taking the money is equated with the false accusation that usually preceded it.
4. Allah mentioned in the previous verse: {...unless they commit an evident immorality} (An-Nisā’: 19). A Muslim's apparent state is that he does not disobey Allah's command. If he takes something from her, it implies that she has committed an evident immorality. If this is not actually the case, then describing that taking as slander is correct, as it suggests she committed indecency when the reality is otherwise. Another interpretation: Taking the money is an attack on her person and her wealth; thus, it is slander from one perspective and injustice from another, making it a grave sin.
5. The punishment for slander and manifest sin was known to them. Thus, {Are you taking it through slander...} means: "Are you taking upon yourselves the punishment for slander?" This is like His saying: {Indeed, those who devour the property of orphans unjustly are only consuming into their bellies fire} (An-Nisā’: 10).

His saying {Are you taking it...} is an interrogative form expressing denial and magnification. The meaning is: It is apparent that you would not commit such an act, given its manifest ugliness in both religious law and reason.

Allah mentioned several reasons for prohibiting this taking:

1. This taking implies attributing evident immorality to her, which is slander (buhtān), one of the major sins.
2. It is a manifest sin (ithm mubīn), because this wealth is her right. If he makes matters difficult for her to use that hardship as a pretext to take the wealth—which is itself an injustice—then using injustice to achieve another injustice is certainly a manifest sin.
3. His saying: {And how could you take it back when you have already gone in unto each other?}

The root of ifḍā’ comes from fada’ (space/openness). Al-Layth said: "So-and-so afḍā to so-and-so," meaning he reached him, originating from entering his opening/space.

The commentators have two opinions regarding ifḍā’ in this verse:

1. It is a metaphor for sexual intercourse. This is the view of Ibn ‘Abbās, Mujāhid, al-Suddī, and the chosen view of Al-Zajjāj and Ibn Qutaybah, and the position of Shāfi‘ī. This is because, according to Shāfi‘ī, if the husband divorces before muss (touching), he can retract half the dower even if he had valid seclusion with her.
2. It means seclusion, even without intercourse. This is the view of Al-Kallābī, and the chosen view of Al-Farrā’ and Abū Ḥanīfah (may Allah be pleased with them), because valid seclusion establishes the dower.

The First Opinion is Stronger, supported by several points:

1. Al-Layth said: Afḍā means entering her opening/space. This meaning is only truly achieved through intercourse. In the absence of intercourse, this meaning is not realized.
2. Allah mentions this in a context of astonishment: {And how could you take it back when you have already gone in unto each other?}. The astonishment is complete only if this ifḍā’ is a strong cause for affection and love, which is intercourse, not mere seclusion. Therefore, ifḍā’ must be interpreted as intercourse.
3. Ifḍā’ to her must be explained by an action that terminates in her, because the preposition ilā (to) indicates the termination of the goal. Mere seclusion is not like that, because in pure seclusion, no action from either party reaches the other. Therefore, interpreting {gone in unto each other} as mere seclusion is invalid.

Objection: If they lie together under one blanket and touch each other, then ifḍā’ has occurred, so it should be sufficient. But you [Shafi'is] do not hold this view.

Response: There are two positions: one holds that the dower is only established by intercourse, and another that it is established by mere seclusion. No one in the community holds that it is established by mere touching or lying together; thus, this view is invalid by consensus. Therefore, only two interpretations remain for ifḍā’: either intercourse or seclusion. The view of seclusion is invalid based on what we explained. Hence, the intended meaning of ifḍā’ must be intercourse.

4. The dower was not established before seclusion. The Lawgiver linked its establishment to ifḍā’. Since there is doubt whether ifḍā’ means seclusion or intercourse, when doubt arises, the previous state must remain, which is the non-establishment [of the full dower]. Thus, the position of Shāfi‘ī is preferred by these arguments.

His saying: {And how could you take it back when you have already gone in unto each other?} is an expression of wonder: For what reason and by what logic do you do this? She offered herself to you, made her being available for your pleasure and enjoyment, and complete affection and perfect love have been established between you. How is it fitting for an intelligent person to take back something he willingly gave her? This is absolutely unfitting for one with a sound nature and correct taste.

His saying: {And they have taken from you a solemn covenant (mīthāqan ghaleezan)}. There are several interpretations of this solemn covenant:

1. Al-Suddī, ‘Ikrimah, and Al-Farrā’: It is their statement: "I marry this woman to you based on what Allah has taken from men regarding women: either retaining her with kindness or releasing her with fairness." It is known that if he forces her to give up the dower, he has not released her with fairness, but with mistreatment.
2. Ibn ‘Abbās and Mujāhid: The solemn covenant is the word of the marriage contract established upon the dower. That word is what permits the lawful use of women's private parts. The Prophet (peace be upon him) said: (Fear Allah concerning women, for you have taken them by the trust of Allah, and you have made their private parts lawful by the Word of Allah.)
3. His saying: {And they have taken from you a solemn covenant} means: they took from you, because of the mutual intimacy (ifḍā’), a solemn covenant, described as solemn due to its strength and magnitude. They say: Twenty days of companionship constitutes kinship; how much more so the union and blending between spouses!

! 7 < { Do not marry those whom your fathers married, except for what has already passed. Indeed, it was an indecency and an abhorrent thing and an evil way. } > 7 !

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