Surah Al-Mujadilah (58): The Disputing Woman (Verses 3-4)

Verse 3: {And those who pronounce Zihar concerning their wives, then revert to what they have said, [must free] a slave before they touch each other.}

Regarding the grammatical structure: Al-Zajjaj said that the word {And those who...} (والذين) is in the nominative case (subject/mubtada'), and its predicate (khabar) is the command to free a slave (فتحرير رقبة). The explicit mention of the obligation (فعليهم) was omitted because it is implied by the context. Alternatively, one could supply an implied predicate: "Then their expiation is freeing a slave" (فكفارتهم تحرير رقبة).

Regarding the phrase: {then revert to what they have said} (ثم يعودون لما قالوا): There is significant scholarly disagreement regarding the meaning of this phrase. We must first address the linguistic interpretations and then the jurisprudential (Shar'i) interpretations, which involve several issues.

Al-Farra' stated that in Arabic, there is no difference in meaning between saying "they revert to what they said" (لما قالوا) and "they revert concerning what they said" (إلى ما قالوا) or "they revert in what they said" (فيما قالوا).

Abu Ali al-Farsi noted that the prepositions ila (إلى) and lam (لـ) are often interchangeable, citing examples like:

• {This is what Allah has guided us to} (هدانا لهاذا) (Al-A'raf: 43).
• {So guide them to the path of Hellfire} (فاهدوهم إلى صراط الجحيم) (Al-Saffat: 23).
• {And Noah was inspired} (وأوحى إلى نوح) (Hud: 36).
• {That your Lord has inspired to her} (بأن ربك أوحى لها) (Al-Zalzalah: 5).

The phrase {what they said} (ما قالوا) in {then revert to what they have said} has two interpretations:

1. The utterance of Zihar itself: Meaning they revert to repeating that specific utterance.
2. The subject matter of the utterance: Meaning they revert to the thing they prohibited for themselves through the Zihar statement. This is a metonymy where the statement stands for the object stated. Examples include:
   • {And We will inherit from him what he says} (ونرثه ما يقول) (Maryam: 80), meaning what he says (i.e., the property he speaks of).
   • The Prophet's saying: (The one who takes back his gift is like a dog returning to its vomit), where the dog is returning to the gifted item, not the act of vomiting.
   • A man saying, "O Allah, You are our hope" (رجاؤنا), meaning our hoped-for object (مرجونا).
   • {And worship your Lord until there comes to you the certainty} (حتى يأتيك اليقين) (Al-Hijr: 99), meaning that which you are certain of (الموقن به).

Under this second interpretation, {then revert to what they have said} means they revert to the thing about which they made that statement.

Furthermore, if we adopt the first interpretation (reverting to the utterance), linguistically, "he reverted to what he did" (عاد لما فعل) can mean either: a) He did it again (repeated the action). b) He nullified what he did (retracted the action).

Both meanings are plausible: if one intends to repeat an action, they necessarily revert to its essence. If one intends to nullify an action, they must return to it conceptually to undo it.

Based on the linguistic possibilities, {then revert to what they have said} can mean:

1. They revert by nullifying or removing the prohibition.
2. They revert by repeating the act of Zihar.

Interpretation 1: Reverting by Nullification (The view of most jurists) This interpretation leads to several differing opinions:

A. View of Al-Shafi'i: Reversion means remaining silent about divorcing his wife for a period long enough in which he could have issued the divorce.

• Reasoning: When he pronounced Zihar, he intended prohibition. If he followed it with divorce, he completed the intended legal effect (prohibition) without expiation. If he remains silent about divorce, it indicates regret over initiating the prohibition, thus obligating the expiation.
• Objections raised by Abu Bakr al-Razi (in Ahkam al-Qur'an):
  1. The word {then} (ثم) implies a delay. Under this view, the reversion (silence) occurs immediately after the utterance without delay, contradicting the implication of thumma.
  2. The analogy to the mother (Zihar equates the wife to the mother) does not imply the prohibition of retaining the wife (as one is permitted to keep one's mother). Therefore, retaining the wife is not a nullification of the statement "You are to me as my mother's back."
• Rebuttals:
  1. The first objection also applies to Abu Hanifa's view (reversion means permitting intercourse), as the husband can permit intercourse immediately after the utterance, contradicting the required delay. However, the Ummah agrees he can resume relations after the utterance, provided the delay for divorce has passed. Thus, the reversion is delayed by the time required to issue a divorce, satisfying the implication of thumma.
  2. The analogy to the mother does imply the prohibition of retaining her in the marital capacity and enjoying her. The statement "You are to me as my mother's back" does not specify whether the prohibition applies to retention or enjoyment. Therefore, it must cover both. If he retains her without divorce, he violates the implication of the Zihar statement, thus constituting reversion.

B. View of Abu Hanifa: Reversion means permitting intercourse, touching, or looking with desire.

• Reasoning: Since Zihar equates her to the mother regarding these specific acts, intending to permit them contradicts the Zihar statement.
• Critique: This view is weak because the Zihar statement did not specify which aspect of the mother's status was intended (retention vs. enjoyment). Equating it specifically to the prohibition of enjoyment is no more compelling than equating it to the prohibition of retention in marriage. If the latter is true, mere retention (even for a moment) constitutes reversion.

C. View of Malik: Reversion means resolving to have intercourse with her.

• Critique: This is weak. The intention to have intercourse does not contradict the prohibition; rather, the intention to permit intercourse contradicts it. This leads back to Abu Hanifa's view.

D. View of Tawus and Al-Hasan Al-Basri: Reversion means actual intercourse.

• Critique: This is incorrect. The verse states: {...then free a slave before they touch each other} (من قبل أن يتماسا). The fa' (فـ) in {then free a slave} (فتحرير) implies the expiation follows the reversion. If the reversion is the intercourse, the expiation must occur after intercourse, which contradicts the requirement that expiation precedes touching. Therefore, reversion must be something other than intercourse.

Conclusion on Interpretation 1: The scholars supporting the nullification view argue that even if reversion could mean intercourse or the intention to have intercourse, Al-Shafi'i's view (silence/delay) represents the minimum requirement for the term "reversion" to apply, and the ruling should be tied to the minimum necessary condition, as there is no evidence for the others.

Interpretation 2: Reverting by Repeating the Act This means they repeat the act of Zihar. This also has several interpretations:

A. View of Al-Thawri: Reversion means uttering Zihar while being a Muslim.

• Reasoning: In the Jahiliyyah (pre-Islamic era), Zihar was used for divorce. Allah established a different ruling for it in Islam. The verse addresses those who used to pronounce Zihar in Jahiliyyah (والذين يظاهرون implies past action), and then they "revert to what they said" (ثم يعودون لما قالوا) by saying it again in Islam.
• Critique by the authors' school: The word {then} (ثم) implies the reversion is something other than the initial Zihar. If they meant repetition, they should have said "then they repeat what they said" (ثم يعيدون). If they argue that the initial Zihar was in Jahiliyyah and the repetition is in Islam (implying a past tense, كانوا يظاهرون), this requires an implied kana, which is contrary to the principle of avoiding implication.

B. View of Abu Al-'Aliyah: Reversion means repeating the utterance of Zihar. If the utterance is not repeated, there is no reversion. This is the view of the Ahl al-Zahir (literalists).

• Reasoning: The literal meaning of {then revert} (ثم يعودون) implies repeating the action.
• Critique:
  1. If repetition was meant, the phrasing should have been "then they repeat what they said" (ثم يعيدون ما قالوا).
  2. The Hadith of Aws (ibn al-Samit) shows that the Prophet obligated expiation upon him when he merely intended intercourse, even though he did not repeat the Zihar. Similarly, the Hadith of Salama ibn Sakhr al-Bayadi, who pronounced Zihar during Ramadan, then broke it by intercourse before expiation, and the Prophet only required one expiation, despite no repetition of Zihar.

C. View of Abu Muslim Al-Isfahani: Reversion means swearing an oath regarding what he initially said (the Zihar statement). If he does not swear an oath, no expiation is due, analogous to saying something is forbidden (like eating human flesh) without swearing an oath, which incurs no expiation unless an oath is sworn.

• Critique: This is weak because expiations are sometimes obligatory by consensus in rituals (like Hajj) without an oath, and in cases of accidental killing, also without an oath.

Regarding the Expiation: {...then free a slave before they touch each other.}

This phrase involves several issues:

Al-Shafi'i has two opinions:

1. It only prohibits intercourse (Jima').
2. (The stronger view) It prohibits all forms of enjoyment/touching (جميع جهات الاستمتاعات). This is also the view of Abu Hanifa.
   • Evidence for the stronger view:
     1. The phrase {before they touch each other} (من قبل أن يتماسا) is general, covering all types of touching, whether by hand or otherwise.
     2. Zihar imposes prohibition by equating the wife to the mother's back. Just as touching the mother's back is forbidden, so too must touching the wife be forbidden.
     3. The narration from 'Ikrimah: A man performed Zihar, then had intercourse before expiation. When he informed the Prophet, the Prophet said: "Abstain from her until you expiate." (This implies prohibition of all contact until expiation).

Al-Shafi'i and Abu Hanifa hold that each instance of Zihar requires a separate expiation, unless the repetition was in a single sitting intended only for emphasis, in which case one expiation suffices. Malik holds that even if one pronounces Zihar a hundred times in separate sittings, only one expiation is due.

• Our Evidence (against Malik): The verse {And those who pronounce Zihar concerning their wives, [must free] a slave} implies that Zihar is the cause for obligating expiation. If a second Zihar occurs, the cause for obligation exists again. This second Zihar must either be the cause for the first expiation or a second one. The first is impossible because the first expiation was already necessitated by the first Zihar. Furthermore, the cause cannot follow the effect. Therefore, the second Zihar necessitates a second expiation.
• Malik's Evidence: The phrase {And those who pronounce Zihar} covers both single and multiple instances, and Allah obligated freeing a slave. Thus, one expiation suffices for all instances.
• Rebuttal: This is analogous to the verse on oaths: {Allah will not call you to account for what is meaningless in your oaths, but He will call you to account for what you intended by your oaths. Its expiation is feeding ten poor people...} (Al-Ma'idah: 89). This implies that multiple oaths require only one expiation, but this conclusion is false (as multiple oaths require multiple expiations). Therefore, the analogy for Zihar is also false.

If a man has four wives and says in one utterance: "You all are to me as my mother's back," Al-Shafi'i has two opinions, the stronger being that four expiations are due, corresponding to the number of wives involved, based on the principle established in Issue 2 (each Zihar necessitates a new expiation).

The verse indicates that expiation is required before touching (من قبل أن يتماسا). If he has intercourse before expiating, the majority (Malik, Abu Hanifa, Shafi'i, Sufyan, Ahmad, Ishaq) hold that only one expiation is due. Some scholars (like 'Abd al-Rahman ibn Mahdi) hold that two expiations are due.

• Our Evidence: The verse established that expiation is due before reversion (touching). If this prerequisite (the timing) is missed, the underlying obligation (the expiation itself) remains, but the verse provides no evidence that failing the timing requirement necessitates an additional expiation.

The stronger view is that the wife should not allow him to approach her until he has expiated. If he delays expiation, the ruler should intervene and force him to expiate, even through physical discipline, until he fulfills her right to marital relations. Jurists note that only the expiation for Zihar can be enforced through compulsion and imprisonment, because delaying this expiation constitutes harm to the wife and denial of her marital right.

Abu Hanifa holds that the slave can be a believer or an unbeliever, based on the general wording {free a slave} (فتحرير رقبة). Al-Shafi'i requires the slave to be a believer.

• Evidence for Al-Shafi'i:
  1. Allah states that polytheists are impure (إنما المشركون نجس) (Al-Tawbah: 28), and all impure things are detestable by consensus. Allah commands: {And do not seek to exchange the bad for the good} (ولا تيمموا الخبيث) (Al-Baqarah: 267).
  2. There is consensus that the slave freed for the expiation of accidental killing must be a believer. The unifying principle is that freeing a slave is an act of grace (إنعام); restricting this grace to believers directs it toward the allies of Allah and denies it to His enemies. Not restricting it might deprive Allah's allies.

Al-Shafi'i holds that freeing a mukatab (a slave contracted for his freedom) is insufficient for expiation. Abu Hanifa holds that if he frees the mukatab before the slave pays anything, it suffices. If the slave has paid something, the apparent narration from Abu Hanifa is that it is insufficient. (Al-Hasan narrated from Abu Hanifa that it suffices even if payment has been made).

• Abu Hanifa's Evidence: A mukatab is considered a slave (رقبة) based on {and in the necks [slaves]...} (وفي الرقاب) (Al-Baqarah: 117), and the verse requires freeing a slave (فتحرير رقبة).
• Al-Shafi'i's Evidence: The legal basis for requiring the freeing of a slave (to remove the taint of the prohibition) remains active even for a mukatab, whereas the reason for excluding the mukatab in other contexts (like inheritance) is absent here. The principle is that what is established remains unless proven otherwise. The mukatab's status is diminished; his master loses full control (the mukatab gains rights over his earnings, and the master is liable for his value if he damages him). Removing pure ownership is harder than removing weakened ownership. Therefore, freeing a pure slave fulfills the obligation, but freeing a mukatab might not.
• Second Point for Al-Shafi'i: If an heir frees the deceased's slave, it is not accepted for expiation. The unifying factor is the weakness of the ownership status.

If a man buys a relative upon whom expiation is due (e.g., a slave he is obligated to free) with the intention of fulfilling the expiation:

• Al-Shafi'i holds that the slave is freed, but it does not count for the expiation.
• Abu Hanifa holds that it counts for the expiation. (Abu Hanifa relies on the apparent meaning of the verse; Al-Shafi'i relies on the previous arguments).

Abu Hanifa holds that the obligation of feeding (الإطعام) is fulfilled by making the food available to the poor person. Al-Shafi'i holds that it is only fulfilled by transferring ownership (التمليك) of the food to the poor person.

• Abu Hanifa's Evidence: The obligation is feeding (الإطعام), the essence of which is making it available, as seen in {from the average of what you feed your families} (Al-Ma'idah: 89), which is achieved by making it available.
• Al-Shafi'i's Evidence: Analogy to Zakat and the Fitr charity (which require ownership transfer).

Al-Shafi'i holds that one Mudd of the staple food of that locality (wheat, barley, rice, dates, or dried cheese) is due for each poor person, based on the Mudd of the Prophet (and subsequent changes in measurement are irrelevant). Abu Hanifa holds that half a Sa' of wheat/flour/gruel, or one Sa' of dates or barley is due, and less is insufficient.

• Al-Shafi'i's Evidence: The verse implies feeding; since the quantity and quality of feeding vary, the ruling must default to the minimum apparent requirement, which is the Mudd.
• Abu Hanifa's Evidence: Narrations from Aws ibn al-Samit state: {For every poor person, half a Sa' of wheat}. Narrations from 'Ali and 'A'ishah state: {For every poor person, two Mudds of wheat}. Furthermore, the consideration is the daily need of the poor person, similar to Sadaqat al-Fitr, which requires the larger measure.

Al-Shafi'i holds that feeding one poor person sixty times is insufficient. Abu Hanifa holds that it suffices.

• Al-Shafi'i's Evidence: The verse requires feeding sixty poor people (ستين مسكينا), so the literal meaning must be observed.
• Abu Hanifa's Evidence: The objective is to remove need, which is achieved by feeding one person sixty times.
• Al-Shafi'i's Rebuttal: Such precise estimations are often arbitrary, making analogy inappropriate. Moreover, bringing joy to sixty hearts might be closer to Allah's pleasure than bringing joy to one heart sixty times.

The verse states: {...then whoever cannot find [a slave] then fasting for two consecutive months} (فمن لم يجد), but for the next step: {...then whoever is unable [to fast] then feeding sixty poor people} (فمن لم يستطع). The Shafi'i school argues:

1. If a person's wealth is absent (e.g., traveling), he does not transition to fasting because he "cannot find" (لم يجد) the slave at that moment.
2. If a person is ill now, he transitions to feeding, even if the illness is expected to pass, because he is "unable" (لم يستطع) due to the immediate ailment.

• The Distinction: The inability to fast (لم يستطع) relates to an immediate, present inability (illness), whereas the inability to find a slave (لم يجد) relates to lacking the means (wealth), which can be acquired by choice (e.g., retrieving absent funds).

Some Shafi'i scholars argue that intense sexual desire or overwhelming lust (الشبق المفرط والغلمة الهائجة) is a valid excuse to transition from fasting to feeding.

• Evidence: When the Prophet commanded the Bedouin (Aws) to fast, and Aws replied that he could only manage fasting through great difficulty, the Prophet said: "Feed [sixty poor people]." This shows intense desire is an excuse to move from fasting to feeding. Furthermore, Istita'ah (ability) implies ease; intense desire prevents ease of action.

Verse 4: {That is what you are admonished with. And Allah is ever, with what you do, Acquainted.}

Linguistic Interpretation (Al-Zajjaj): {That is what you are admonished with} (ذلكم توعظون به) refers to the severity of the expiation, serving as a strong admonition to abandon Zihar and never repeat it.

Other Interpretations: It means you are commanded concerning this expiation (تؤمرون به من الكفارة), and {And Allah is ever, with what you do, Acquainted} means He knows whether you perform the expiation or neglect it.

Verse 5: {And whoever cannot find [a slave], then fasting for two consecutive months before they touch each other. And whoever is unable [to fast], then feeding sixty poor people. That is so you may believe in Allah and His Messenger. And those are the limits of Allah. And for the disbelievers is a painful punishment.}

(The text transitions here to the next verse, outlining the subsequent rulings.)