Surah An-Nisa (The Women): Verse 22

Issues Discussed Here:

Ibn Abbas and the majority of exegetes state that the people of Jahiliyyah (pre-Islamic ignorance) used to marry their fathers' wives. Allah forbade this practice through this verse.

The Dispute:

• Abu Hanifa (may Allah be pleased with him): It is forbidden for a man to marry his father's concubine (a woman sexually possessed by his father but not formally married to him).
• Al-Shafi'i (may Allah have mercy on him): It is not forbidden.

Abu Hanifa's Argument (That Nikah [Marriage] in this context means Sexual Intercourse): He argues that Allah forbade a man from marrying (yankahu) what his father married (nakaḥa). He asserts that Nikah linguistically refers to sexual intercourse (waṭ’). He supports this by citing several points:

1. Quranic Evidence (Al-Baqarah: 230): "Then if he divorces her, she is not lawful to him afterward until she marries a husband other than him." (Al-Baqarah: 230). This Nikah is attributed to the husband, and the Nikah attributed to the husband is intercourse, not the marriage contract ('aqd), because a man cannot marry his own wife (as this would be achieving the already achieved). If Nikah here meant the contract, the dissolution (taḥlīl) would occur immediately upon the contract, which is not the case. Thus, it must mean intercourse.
2. Quranic Evidence (An-Nisa: 6): "And test the orphans until they reach the age of marriage (nukāḥ)." Here, Nikah means intercourse, not the contract, as the capacity for contracting marriage was always present.
3. Quranic Evidence (An-Nur: 3): "The adulterer shall not marry except an adulteress or a polytheist." If Nikah meant the contract here, the statement would be a lie (since the adulterer is prohibited from marrying a chaste woman by contract).
4. Hadith Evidence: The Prophet (PBUH) said: "The one who engages in nākih al-yad (literally, 'the one who engages in the hand') is cursed." This clearly refers to intercourse, not the contract.

Conclusion of Abu Hanifa's Proof: Since Nikah means intercourse based on these proofs, the verse means: "Do not have intercourse with those whom your fathers had intercourse with." This includes both the formally married wife and the concubine.

Counter-Argument (That Nikah also means Contract): The opponents ask: Just as the word Nikah is used to mean intercourse, it is also used to mean the contract, as in: "And marry off the unmarried among you" (An-Nur: 32), "Then marry those that please you of [other] women" (An-Nisa: 3), and "When you marry believing women" (Al-Ahzab: 49), and the Prophet's saying: "I was born of Nikah and not of illicit sexual relations (sifāḥ)." Why should the word be interpreted as intercourse rather than the contract?

Rebuttals to the Counter-Argument (Three Ways):

1. Al-Karkhi's View: The word Nikah is ḥaqīqah (literal meaning) in intercourse and majāz (metaphorical) in the contract. This is because, in Arabic, Nikah fundamentally means joining/uniting (ḍamm), which is present in intercourse but not in the contract. The contract is called Nikah metaphorically because it is the cause (sabab) of the intercourse (the musabbab). Just as the sacrifice made at a child's birth is called Aqiqah (which originally meant the hair cut off), the cause is named after the result.
   • Al-Karkhi's Principle: He believed a single word cannot be used simultaneously in its literal and metaphorical senses. Therefore, the ruling derived from this verse is only about intercourse. The ruling regarding the contract must come from another proof.

2. View of Shared Meaning: Some scholars hold that a polysemous word (mushtarak) can be used to mean both of its concepts simultaneously. They argue that the cited verses prove Nikah is literal for both intercourse and contract. Therefore, "Do not marry what your fathers married" forbids both intercourse and contracting marriage with them.

3. View of Shared Meaning (Refined): Those who argue a shared word cannot be used for both meanings simultaneously state: The evidence shows Nikah is used for intercourse sometimes and the contract at other times. Assuming shared meaning or metaphor is contrary to the default principle. Therefore, Nikah must be literal for the common concept shared between them—the concept of joining (ḍamm). If this is the case, the verse forbids the common denominator between the two types of Nikah. Forbidding the common denominator necessarily forbids each specific type. Forbidding marriage (tazwīj) inherently forbids both the contract and the intercourse.

Rebuttals to the Three Views (Five Ways):

1. Rebuttal to View 1 (Karkhi):
   • We deny that Nikah primarily means intercourse. The evidence used to support it is countered by other evidence:
     • The Prophet's saying: "Marriage (An-Nikāḥ) is my Sunnah." Intercourse, purely as intercourse, is not his Sunnah (otherwise, illicit intercourse would also be his Sunnah). Since Nikah is his Sunnah, and intercourse is not, Nikah is not merely intercourse.
     • The command: "Marry so that you multiply." If Nikah meant intercourse, this would permit all forms of intercourse.
     • The verses commanding marriage (An-Nur: 32, An-Nisa: 3).
   • If we accept that intercourse is the literal meaning (ḥaqīqah), then the verses commanding marriage must involve metaphor (majāz). If there is a conflict between applying metaphor and applying specification (taḫṣīṣ), applying specification is preferred.
   • If we say Nikah is literal for the contract, then the verses about intercourse require specification, while the verses about the contract require metaphor. Our view (literal for contract, metaphor for intercourse) requires only metaphor, whereas their view requires both metaphor and specification. Therefore, our view is stronger.

2. Rebuttal to View 1 (Continued): The Prophet's saying: "I was born of Nikah and not of illicit relations (sifāḥ)." This implies that illicit relations are not Nikah. Since illicit relations are intercourse (waṭ’), this implies intercourse is not Nikah (in its literal sense).

3. Rebuttal to View 1 (Continued): If someone swears that the children of adultery are not children of Nikah, they are not considered to have broken their oath. If intercourse were literally Nikah, they would have broken their oath.

4. Rebuttal to View 2 (Shared Meaning): We accept that Nikah means intercourse and also means contract. Why should the verse be interpreted as forbidding intercourse rather than the contract?

5. Rebuttal to View 3 (Common Denominator): This view is weak. The joining (ḍamm) in intercourse is the physical touching and adhesion of bodies. The joining in the contract (offer and acceptance) consists of non-enduring sounds. Physical joining is impossible in the contract. Therefore, there is no common concept (mafhūm mushtarak) between the two to which Nikah could literally refer. This forces us back to the debate between View 1 (literal in one, metaphor in the other).

Further Rebuttals to Abu Hanifa's Position:

• Rebuttal to the Interpretation of mā (What): If the verse means "Do not marry the woman whom your fathers sexually possessed," why use the relative pronoun mā (which usually refers to non-rational beings)? If it meant the woman, man (who) should have been used. Furthermore, Arabic grammarians agree that mā followed by a verb implies a verbal noun (maṣdar). The verse should be read as: "Do not contract a Nikah like the Nikah of your fathers." Their Nikah was without a guardian, without witnesses, temporary, and often forced. Thus, the verse forbids these types of unions. (This view is attributed to Muhammad ibn Jarir al-Tabari).

• Rebuttal Regarding Generality: Even if we accept mā refers to the woman, the phrase "what your fathers married" is not explicit in its generality. One can say "all that your fathers married" or "some of what your fathers married." If it were explicitly general, adding "all" would be redundant, and adding "some" would imply deficiency. Since neither is true, the phrase does not inherently imply absolute generality, meaning it does not necessarily cover the point of contention (the concubine).
  • Counter-Rebuttal: If it is not general, then specifying one category over another is arbitrary, rendering the verse ambiguous (mujmal).
  • Response: We do not accept that if it is not general, specifying one category is arbitrary. Since the exegetes agree the verse was revealed concerning marrying the fathers' wives, specifying that case is the most appropriate interpretation, and this avoids the verse being ambiguous or covering the disputed case.

• Rebuttal Regarding Prohibition: Even if the verse covers the disputed case, why assume it implies absolute prohibition (taḥrīm)? Many prohibitions imply mere discouragement (tanzīh). We will present evidence for the validity of this marriage later.

• Rebuttal Regarding Validity (Five Arguments for Validity): Even if the verse implies the invalidity of the marriage, there are arguments supporting its validity:
  1. Argument from Abu Hanifa's Own Principle (Argument by Ilzām): For Abu Hanifa, a prohibition in a contract implies the contract itself is validly concluded (man'aqid), even if flawed (like a sale on a day of Eid). If this marriage is forbidden by the verse, it must be concluded. If it is concluded, it must be valid, as no one distinguishes between a concluded forbidden act and a valid one.
  2. Argument from General Permissibility: The verse "And lawful to you are all [women] beyond those..." (An-Nisa: 24) covers all women except those explicitly forbidden. The forbidden list begins with "Your mothers..." (An-Nisa: 23). The closest antecedent for the pronoun in "beyond those" (mā warā'a dhālikum) is the list starting with mothers, not the prohibition against fathers' wives (which is in the next verse). Therefore, the general permission covers the disputed case. Similarly, general verses on marriage (e.g., "Marry off the unmarried," "Marry those that please you") cover this case, unless specifically excluded.
  3. Argument from Hadith: The famous Hadith: "The forbidden does not make the lawful forbidden." While exceptions exist (like wine mixing with water), the general rule applies unless proven otherwise.
  4. Argument by Analogy (Qiyās): The prerequisites for a valid marriage are met (mutual consent, etc.). The reason for the prohibition in the agreed-upon cases (like marrying a mother) is to preserve the sanctity of the existing marital bond. This sanctity does not apply to illicit sexual relations (zinā).
     • Elaboration on the Difference: In the case of marrying a mother or daughter, the prohibition preserves the connection established by a lawful marriage. If the father's wife were married by the son without the prohibition, the in-laws would interact freely, potentially leading to attraction, subsequent divorce, and intense enmity when the son marries the mother/daughter. The prohibition prevents this harm. Since zinā does not establish a desired connection, the rationale for prohibition does not apply. (This aligns with Al-Shafi'i's argument: "Intercourse for which I am praised, and intercourse for which I am stoned—how can they be alike?")

Concluding Remarks on Issue 2: The author notes that the extensive discussion here is due to the lengthy and weak arguments presented by Abu Bakr al-Razi on this issue, who allegedly behaved poorly when debating Al-Shafi'i. The author asserts that their own analysis is concise and based on sound principles.

Exegetes offered several interpretations:

1. Meaning-Based Exception (Best View): This is an exception based on meaning, not strict grammar. It means: "Do not marry those whom your fathers married, except for those marriages that occurred before the revelation of this prohibition verse," as these past acts are pardoned.
2. Exaggeration for Emphasis (Al-Kashshaf's View): Similar to saying, "You are not permitted anything except what is impossible," meaning nothing else is permitted. The purpose is to emphasize the absolute prohibition by stating an impossible exception.
3. *Disjointed Exception (Istithnā' Munqaṭi'):* It is not permissible to except the past from a future ruling. The meaning is: "However, as for what has already passed, Allah has pardoned it."
4. Meaning of "After": Illā here means "after," similar to "They will not taste death therein except for the first death" (Ad-Dukhan: 56), meaning after the first death.
5. Meaning of Affirmation/Confirmation: Some say it means: "You are confirmed in those marriages that have already passed." They suggest the Prophet (PBUH) allowed them to remain in those unions for a period to ease their transition away from this bad habit gradually. This view is considered incorrect because the Prophet (PBUH) never confirmed anyone in marrying his father's wife, even from the Jahiliyyah. (The narration of Al-Bara' is cited, where the Prophet sent someone to kill a man who married his father's wife and seize his wealth.)

There are two views on what the pronoun hu (it) refers to:

1. Reference to the Act Before Prohibition: Allah informed them that this act, which He prohibited, was always considered reprehensible and detestable in their own hearts. The Arabs used to call a man born from his father's wife maqt (abhorred) because the father's wife resembled the mother, and marrying mothers was one of the ugliest things to the Arabs. Since this marriage resembled that, it was naturally detestable to them. Allah clarifies that this act was perpetually detestable.
2. Reference to the Act After Prohibition: The pronoun refers to the act after the prohibition. Allah clarified that it was an abomination (fāḥishah) in Islam and detestable to Allah. The use of the past tense (kāna) indicates that it was described with this attribute in Allah's decree and knowledge eternally.

Allah described this marriage with three attributes:

1. It was an Abomination (Fāḥishah): This refers to the intellectual ugliness (al-qubḥ al-'aqlī), as the father's wife resembles the mother, making the act one of the most repulsive immoralities.
2. And Detestable (Maqtan): This refers to the legal ugliness (al-qubḥ ash-shar'ī), meaning intense hatred coupled with contempt, resulting from a vile act committed by the perpetrator. From Allah towards the servant, it signifies extreme disgrace and loss.
3. And an Evil Way (Wa Sā'a Sabīlā): This refers to the customary/conventional ugliness (al-qubḥ fī al-'urf wa al-'ādah).

When an act combines these three levels of ugliness (intellectual, legal, and customary), it reaches the utmost degree of reprehensibility.

The Sixth Category of Regulations Concerning Women (Verse 23)

(Note: This verse lists the permanently prohibited female relatives for marriage, including lineage-based prohibitions, affinity-based prohibitions (like mothers-in-law and stepdaughters), and milk-kinship prohibitions, as well as the prohibition of simultaneous marriage between two sisters, with the same exception as in verse 22.)