Al-Nisa (The Women): Verse 35

After mentioning that when a wife is disobedient (nushūz), the husband should first admonish her, then forsake her in bed, and finally strike her, God clarifies that after striking, the only remaining step is to refer the matter to arbitration to justly settle the dispute between the oppressor and the oppressed. This is indicated by His saying: {And if you fear dissension between the two [of them]} until the end of the verse.

Herein lie several issues:

Ibn Abbas said that {خِفْتُمْ} means "if you know/are certain" ('alamtum). He contrasted this with the verse {وَالَّاتِي تَخَافُونَ نُشُوزَهُنَّ} (And those [wives] from whom you fear disobedience), which is understood in terms of mere suspicion (ẓann).

The difference between the two contexts is that in the initial stage, signs of disobedience appear, leading to fear (khawf). However, after admonition, forsaking, and striking, if she persists in disobedience, certainty ('ilm) regarding her disobedience has been established; thus, {خِفْتُمْ} here must be interpreted as certainty.

Al-Zajjaj objected, saying that {خِفْتُمْ} here means "if you become certain of error/wrongdoing." He argued that if we were truly certain of the شقاق (dissension) in reality, we would not need arbitrators.

The majority of commentators responded that even if the existence of dissension is known, we do not know whether that dissension originated from him or from her. Therefore, the need for arbitrators is to ascertain this specific meaning.

Alternatively, it can be argued that the existence of dissension in the present moment is known, and such a state does not inherently cause fear. Rather, the fear lies in whether that dissension will persist or not. Thus, the benefit of sending arbitrators is not to remove the existing dissension (which is impossible), but to remove that dissension in the future.

Shiqāq has two interpretations:

1. That each party does what is difficult (yashuqqu) for the other.
2. That each party has entered a split (shiqq) due to enmity and opposition.

This means shiqāqan baynahumā (a dissension between them). However, the maṣdar (verbal noun) is added to the ẓarf (adverb of place/time). Adding verbal nouns to adverbs is permissible because the action occurs within that context. For example, one says, "The fasting of the Day of Arafah pleases me," and God says, {بَلْ مَكْرُ اللَّيْلِ وَالنَّهَارِ} (Nay, [you are deceived by] the plot of night and day).

There is disagreement on who is addressed by {فَابْعَثُوا حَكَمًا مِّنْ أَهْلِهِ وَحَكَمًا مِّنْ أَهْلِهَا} (So send forth an arbitrator from his family and an arbitrator from her family).

1. The Ruler/Authority: Some say it is the Imam (ruler) or his deputy, as the implementation of religious rulings belongs to him.
2. All Capable Members of the Community: Others say it refers to every righteous member of the Ummah. This is because {خِفْتُمْ} (if you fear) is addressed to everyone, and there is no reason to restrict it to some members rather than others; thus, it must apply to all. Consequently, {فَإِنْ خِفْتُمْ} is an address to all believers. Then, {فَابْعَثُوا} (so send forth) becomes a command to individuals within the community in this sense. Therefore, whether the Imam exists or not, the righteous individuals have the right to send forth an arbitrator from his family and one from hers for reconciliation. Furthermore, this acts like repelling harm, which every individual is permitted to undertake.

If dissension occurs, it is either from her, from him, or mutual/unclear.

• If it is from her, it is nushūz, the ruling for which has already been mentioned.
• If it is from him:
  • If he did something permissible (like marrying a second wife or taking a concubine), the wife is informed that this is lawful and is warned against causing dissension. If she accepts, fine; otherwise, it becomes nushūz.
  • If the dissension stems from injustice on his part, the judge commands him to fulfill his obligation.
• If the cause is mutual or unclear, the ruling is as stated above (arbitration).

Imam Al-Shafi'i (may God be pleased with him) stated that it is recommended for the judge to appoint two just men ('adlayn) and designate them as arbitrators. It is best if one is from his family and one from hers, as their relatives are more knowledgeable about their situation than strangers and more eager for reconciliation. If they are strangers, it is still permissible.

The benefit of the arbitrators is that each can meet privately with their respective party to investigate the true state of affairs, determining whether their desire is to remain married or to separate. Then, the two arbitrators meet and do what is right, whether that is pronouncing a divorce or khul' (redemption).

Is it permissible for the arbitrators to implement a ruling that binds the couple without their consent, such as the man's arbitrator pronouncing a divorce, or the woman's arbitrator redeeming her through some of her wealth?

Al-Shafi'i has two opinions on this:

1. Permissible: This is the view of Malik and Ishaq.
2. Not Permissible: This is the view of Abu Hanifa, who considers the arbitrators to be agents (wakīl) like in other agencies.

Al-Shafi'i cited the narration of Ali (may God be pleased with him), narrated by Ibn Sirin from Ubaidah: A man and a woman came to Ali, each accompanied by a group of people. Ali commanded them to send forth an arbitrator from his family and one from hers. Then he said to the two arbitrators: "Do you know what is incumbent upon you? If you see fit to reconcile them, then reconcile them; and if you see fit to separate them, then separate them." The woman said: "I consent to the Book of God regarding what is incumbent upon me and what is incumbent upon him." The man said: "As for separation, no." Ali said: "You lie, by God, until you agree to what she has agreed to."

Al-Shafi'i stated that this tradition contains evidence for both opinions.

Evidence for the First Opinion (Permissibility): God sent them as arbitrators and said to them: {عَلَيْكُمَا} (upon you both) if you see fit to reconcile... The minimum implication of {عَلَيْكُمَا} is that it is permissible for them to do so.

Evidence for the Second Opinion (Impermissibility): Since the husband did not consent to separation, the matter is suspended. The meaning of Ali's statement, "You lie," is that you are not being just in your claim if you do not do what she has done (i.e., agree to the ruling).

Some argued for the first opinion by citing that God named them {حَكَمَيْنِ} (arbitrators/judges), and a judge is one who rules; thus, making them judges empowers them to rule. Others argued for the second opinion by citing that God only mentioned {إِصْلَاحًا} (reconciliation) for the arbitrators, implying that anything beyond reconciliation is not delegated to them.

{وَإِنْ خِفْتُمْ شِقَاقَ بَيْنِهِمَا} means dissension between the husband and wife. Although they were not explicitly mentioned by name, what indicates them—men and women—was mentioned previously.

Then God Almighty said: {إِن يُرِيدَا إِصْلَاحًا يُوَفِّقِ اللَّهُ بَيْنَهُمَا} (If they both desire reconciliation, Allah will cause it to agree between them). This contains two issues:

Issue 1: Interpretations of {إِن يُرِيدَا} (If they both desire)

There are several interpretations:

1. If the two arbitrators desire good and reconciliation, God will cause agreement between the two arbitrators so they concur on what is best.
2. If the two arbitrators desire reconciliation, God will cause reconciliation between the husband and wife.
3. If the husband and wife desire reconciliation, God will cause reconciliation between the husband and wife.
4. If the husband and wife desire reconciliation, God will cause agreement between the two arbitrators so they act justly.

Undoubtedly, the wording is open to all these interpretations.

Issue 2: The Meaning of Tawfīq (Causing Agreement)

The root of tawfīq is agreement (muwāfaqa), which is equality in some matter. Tawfīq is the subtle divine assistance that leads to the performance of obedience. The verse indicates that none of the goals and objectives are achieved except through God's tawfīq. The meaning is: If the intention of the arbitrators is to reconcile the parties, God will cause agreement between the husband and wife.

Then God Almighty said: {إِنَّ اللَّهَ كَانَ عَلِيمًا خَبِيرًا} (Indeed, Allah is ever Knowing, Aware). This serves as a warning to both the couple and the arbitrators regarding following paths contrary to the truth.

(Worship Allah and associate nothing with Him, and to parents do good; and to relatives, orphans, the needy, the near neighbor, the distant neighbor, the companion at your side, the traveler, and those whom your right hands possess. Indeed, Allah does not like those who are self-deluded and boastful.)