Ala-Maududi
(60:10) Believers, when believing women come to you as Emigrants (in the cause of faith), examinethem. Allah fully knows (the truth) concerning their faith. And when you have ascertained themto be believing women, do not send them back to the unbelievers.[14] Those women areno longer lawful to the unbelievers, nor are those unbelievers lawful to those (believing)women. Give their unbelieving husbands whatever they have spent (as bridal-dues); and there isno offence for you to marry those women if you give them their bridal-dues.[15] Donot hold on to your marriages with unbelieving women: ask for the return of the bridal-due yougave to your unbelieving wives and the unbelievers may ask for the return of the bridal-due theyhad given to their believing wives.[16] Such is Allah’s command. He judges betweenyou. Allah is All-Knowing, Most Wise.
14. The background of this injunction is that after the peace treaty of Hudaibiyah, in thebeginning, the Muslim men started fleeing Makkah, while arriving at Al-Madinah they were sentback according to the terms of the treaty. Then the Muslim women started arriving and first ofall, Umm Kulthum Uqbah bin Abi Muait emigrated to Al- Madinah, The disbelievers invoked thetreaty and demanded return, and two brothers of Umm Kulthum, Walid bin Uqbah and Amarah binUqbah, came to Al- Madinah to take her back. At this the question arose whether the treaty ofHudaibiyah applied to the women as well. Allah has answered this very question here, saying: Ifthey are Muslims, and it is ascertained that they have emigrated only for the sake of the faithand for no other motive, they are not to be returned.
Here, a complication has arisen on account of the narration of the Hadith from the viewpoint ofthe meaning and content, and it must be resolved. The traditions that are found in the Ahadithabout the conditions of the treaty of Hudaibiyah are mostly traditions narrated from theviewpoint of the meaning and purport. About the condition under discussion the words in thedifferent traditions are different. In some the words are to the effect: Whoever reaches us fromyou, we will not return him, but whoever reaches you from us, you shall return. In some othersthe words are to the effect: Whoever of his companions comes to the Messenger (peace be uponhim) of Allah without the permission of his guardian, he will send him back. And in stillanother, the words are: Whoever, from the Quraish goes to Muhammad (peace be upon him) withoutthe permission of his guardian, he will return him to Quraish. The style of these traditions byitself shows that this condition of the treaty has not been reported in the actual words of thetreaty, but the reporters have reported its purport in their own words. But since most of thetraditions are of the same nature, the commentators and traditionists generally have understoodthat the treaty was general, which applied to both men and women, and the women too were to bereturned according to it. Later, when this injunction of the Quran that the believing women werenot to be returned, came to their knowledge, they interpreted it to mean that Allah in thisverse had decided to break the treaty in so far as it related to the believing women. But thiswas not an ordinary thing which should be accepted so easily. If the treaty was general, withoutany exception in respect of men and women, it could not be lawful for one party to amend itunilaterally and change a part of it by itself. And even if such a thing happened, it is strangethat the Quraish did not protest against it, whereas they remained on the lookout for anopportunity to raise objections against everything that the Prophet (peace be upon him) and theMuslims did. Had they found that the Prophet had committed a breach of the treaty conditions,they would have raised a loud clamor. But we do not find any trace of it in any tradition thatthey took an exception to this ruling of the Quran. Had this question been carefully consideredthe problem could have been resolved by reference to the actual words of the treaty. But manypeople paid no attention to it. If some scholars (e.g. Qadi Abu Bakr Ibn al-Arabi) did pay anyattention, they did not hesitate to say that the reason why the Quraish did not raise anyobjection was that Allah had miraculously scaled their mouths in this matter. It is strange howthese scholars felt satisfied at this explanation.
The fact of the matter is that this condition of the peace treaty had been proposed by thedisbelieving Quraish, and not by the Muslims, and the words that Suhail bin Amr, theirrepresentative, had gotten included in the treaty were: And that whichever man (rajul) come toyou from us, even if he be on your religion, you will return him to us. These words of thetreaty have been reproduced in Bukhari (Kitab ash-Shurut: Bab ash-Shurut fil-Jihad wal-Masalahah) through authentic channels. It may be that Suhail used the word rajul in the meaningof a person, but this might be the meaning he had in his mind. The word written in the treatywas rajul, which is used for a fullgrown man in Arabic. That is why when the brothers of UmmKulthum bint Uqbah came to the Prophet (peace be upon him) and demanded her return, (accordingto Imam Zuhri’s tradition), Holy Prophet (peace be upon him) refused to return her, saying: Thecondition was about the men, not the women. (Ibn al-Arabi, Ahkam al-Quran; Loam Razi, TafsirKabir) Until then the people of Quraish themselves were under the delusion that the treatyapplied to all kinds of emigrants, men or women; But when the Prophet (peace be upon him) drewtheir attention to these words of the treaty, they were struck dumb and had to accept thisdecision.
According to this condition of the treaty the Muslims had the right to decline return of anywoman who emigrated from Makkah to Al-Madinah for any reason whatsoever. But Islam wasinterested only in safeguarding the believing women and not to make the holy city of Al-Madinaha place of refuge for every kind of female fugitive. Therefore, Allah enjoined: Ascertain byexamination the faith of the women who emigrated to you and profess to have believed; and whenit is fully ascertained that they have emigrated with genuine faith, and no other motive, do notreturn them. Thus, the procedure adopted for carrying out this command was that the women whoemigrated were questioned whether they believed in the oneness of Allah and the Prophethood ofMuhammad (peace be upon him) and had emigrated only for the sake of Allah and His Messenger(peace be upon him), and not out of any worldly consideration, e.g. hatred of the husband, orlove of somebody in Al-Madinah, or some other worldly motive. Only those women who gavesatisfactory answers to these questions were allowed to stay, others were sent back. (Ibn Jariron the authority of Iba Abbas, Qatadah, Mujahid, Ikrimah, Ibn Zaid).
In this verse a basic principle of the law of evidence has also been stated and its furtherclarification has been made by the procedure that the Prophet (peace be upon him) had prescribedfor implementing it, The verse enjoins three things:
(1) Examine the faith of the emigrating women who present themselves as believers.
(2) Allah alone knows the truth about their faith; the Muslims have no means to find out whetherthey have really believed or not.
(3) When it has been ascertained that they are believers, they are not to be returned.
Then, in accordance with this injunction, the method that the Prophet (peace be upon him)prescribed for examining and ascertaining the faith of the women was that the statement given bythem on oath should be relied on and it should be made sure after necessary examination thatthey had no other motive of emigration than the faith. First, it gives the principle that fortaking decision on different matters it is not necessary for the court to have direct knowledgeof the truth; for the court only that knowledge is sufficient which is obtained throughevidence. Second, the statement given by a person on oath will be regarded as reliable until itis proved to be false by a clear evidence. Third, whatever declaration a person himself may makeabout his creed and faith, will be accepted and no search will be made into finding out, whetherwhat he states actually constitutes his faith or not, unless there is a clear indication to thecontrary. And fourth, in the personal affairs of a person, which no one else can know, his ownstatement will be trusted. e.g. in the matters of divorce and the waiting period (iddat) thewoman’s own statement about her menstrual course and state of purity will be regarded asreliable, whether it is true or false. According to these very rules, in the science of theHadith also, those traditions will be accepted, the apparent state of whose reporters testifiesto their being righteous, unless, of course, there are other circumstances which forbid theacceptance of a particular tradition.
15. This means that, a Muslim who wants to marry any of these women should pay a fresh dower andmarry her. The dowers to he repaid to their unbelieving husbands will not be considered theirdowers.
16. Four very important injunctions have been laid down in these verses, which relate both to thefamily law of Islam and to the international law.
First, that the woman who becomes a Muslim is no longer lawful for her unbelieving husband norher unbelieving husband is lawful for her.
Second, that the marriage of the married woman who becomes a Muslim and emigrates from the abodeof disbelief (dar al-kufr) to the abode of Islam (dar al-lslam) is automatically annulled, andany Muslim who likes can marry her after paying her dower.
Third, that it is not lawful for a man who becomes a Muslim to retain his wife in wedlock if shelikes to remain an infidel.
Fourth, that if there exist relations of peace between the abode of disbelief and the abode ofIslam, the Islamic government should try to settle the question of the return of dowers with thenon-Muslim government, thus: The dowers of the married women of the disbelievers, who becomeMuslims and emigrate to the abode of Islam, should be returned by the Muslims, and the dowers ofthe unbelieving married women of the Muslims who are left behind in the abode of disbelief,should be taken back from the disbelievers.
The historical background of these injunctions is as follows: In the beginning of Islam, therewere many such men, who accepted Islam but their wives did not become Muslim, and there weremany such women who became Muslim but their husbands did not accept Islam. Abul Aas, the husbandof Zainab, a daughter of the Prophet (peace be upon him), was a non-Muslim and he remainednon-Muslim for several years. In the early period no command had been given to the effect thatthe pagan husband was unlawful for the Muslim wife and the pagan wife was unlawful for theMuslim husband. Therefore, the marital relations continued to exist between them. Even after themigration for several years, it so happened that many women became Muslim and emigrated toAl-Madinah while their pagan husbands remained in the abode of disbelief. Likewise, many Muslimmen emigrated and their pagan wives were left in the abode of disbelief. But in spite of thistheir marriage continued. This was creating complications for the women in particular, for themen could marry other women, but this was not possible for the women. Until their marriage withtheir previous husbands was dissolved, they could not remarry. After the peace treaty ofHudaibiyah when these verses came down, they annulled the previous marriage between the Muslimsand the pagans, and laid down an absolute and clear law for guidance in future. The jurists ofIslam have codified this law under four major titles:
First, the case when both the man and the wife are in the abode of Islam and one of them becomesa Muslim and the other remains an infidel.
Second, the case when both the man and the wife are in the abode of disbelief, and one of thembecomes a Muslim and the other remains an infidel.
Third, the case when one of the spouses becomes a Muslim and emigrates to the abode of Islam andthe other remains an infidel in the abode of disbelief.
Fourth, the case when either of the Muslim spouses becomes an apostate.
Below we give the viewpoints of the jurists with regard to all the four cases separately:
(1) In the first case, if the husband has accepted Islam and his wife is a Christian or a Jewess,and she remains faithful to her religion, their marriage will endure, for it is permissible fora Muslim to have a wife who is a follower of the earlier scriptures. This is agreed upon by alljurists.
And if the wife of the man who has accepted Islam, is not a follower of the earlier Books, andshe adheres to her faith, the Hanafis say that Islam will be presented before her; if sheaccepts it, the marriage will endure; if she refuses to accept it, separation will be effectedbetween them. In this case, if consummation between them had taken place, the woman will beentitled to the dower; if there was no consummation, she will not be entitled to any dower, forseparation has been caused because of her refusal. (Al- Mabsut; Hedayah; Fath al-Qadir). ImamShafei and Imam Ahmad say that if the spouses did not have consummation, the woman would beoutside wedlock as soon as the man accepted Islam, and if consummation had taken place; thewoman will remain in wedlock till three menstruations. During this period if she accepts Islamof her own free will, the marriage will continue, otherwise it will become void automatically assoon as she is free from her third menstrual course. Imam Shafei also adds that it is not rightto present Islam before the woman on the basis of the pledge of non-interference in religionthat the dhimmis have been given by the Muslims. But this, in fact, is a weak argument; for itwould be interference in the dhimmi woman’s religion if she was compelled to accept Islam. It isno interference to tell her that if she accepted Islam, she would continue to be her husband’swife, otherwise she would be separated from him. In Ali’s time there has been a precedent ofthis nature. An Iraqi landowner who was a Majusi by religion accepted Islam and his wiferemained an unbeliever, AIi presented Islam before her, and when she refused to accept it, heeffected separation between them. (Al-Mabsut). Imam Malik says that if consummation has nottaken place, the unbelieving wife would forthwith cease to be the wife as soon as the manembraced Islam, and if consummation has taken place, Islam would be presented before the woman,and in case she refuses to accept it, separation will result. (Ibn Qudamah, Al-Mughni ).
And if Islam has been accepted by the woman and the man remains an infidel, whether he is afollower of an earlier scripture or a non-follower, the Hanafis say that Islam will be presentedbefore the husband whether consummation between them has taken place or not. If he accepts it,the woman will continue to be his wife; if he rejects it, the qadi will effect separationbetween them. So long as the man does not refuse to accept Islam, the woman will remain hiswife, but he will not have the right to have sexual relations with her. In case the husbandrefuses, separation will become effective just like an irrevocable divorce. If consummation hasnot taken place before this, the woman will be entitled to half the dower, and if it has takenplace, the woman will be entitled to full dower as well as maintenance during the waiting period(iddat). (AI-Mabsut; Hedayah; Fath at-Qadir). According to Imam Shafei, marriage will dissolveas soon as the woman accepted Islam in case consummation has not taken place, and in case it hastaken place, the woman will continue to be the man’s wife till the end of the waiting period. Ifin the mean-time he accepts Islam, marriage will remain valid, otherwise separation will takeplace as soon as the waiting period comes to an end. But in the case of the man, Imam Shafei hasalso expressed the same opinion as he has expressed about the woman as cited above. That is, itis not right to present Islam before him. But this is a weak opinion. In the time of Umar, onseveral occasions, the woman accepted Islam and the man was invited to Islam; when he refused toaccept it, separation was effected between the spouses. There is, for examples the case of thewife of a Christian of the Bani Taghlib, which was brought before him. Umar said to the man:Accept Islam, otherwise I will effect separation between you two. He declined, and the Caliphenforced the decree. The case of a newly converted lady of Bahz al-Malik was sent to him. In hercase too he ordered that Islam be presented before her husband; if he accepts it well and good,otherwise separation be effected between them. These incidents had happened in front of thecompanions and no dispute or difference of opinion has been reported. (AI-Jassas, Ahkamal-Quran; Al Mabsut; Fath al-Qadir). Imam Malik’s opinion in this connection is that if thewoman becomes a Muslim before the consummation of marriage Islam should be presented before thehusband; if he accepts it, well and good; otherwise separation should be effected forthwith. Andif consummation has taken place, and the woman has accepted Islam afterwards, she will have towait till the end of the waiting period. If the husband accepts Islam in the meantime, marriagewill continue otherwise separation will take place as soon as the waiting period expires. Asaying of Imam Ahmad is in support of Imam Shafei. His other saying is to the effect that theevent of the difference of religion between the spouses will in any case lead to immediateseparation, whether consummation between them has taken place or not. (Al-Mughni).
(2) If in dar al-kufr (abode of disbelief) the woman becomes a Muslim and the man remains aninfidel, or the man becomes a Muslim and the wife (who neither is Christian nor Jew but isfollower of a non-revealed religion) remains an infidel, the Hanafi viewpoint is that separationwill not take place, whether consummation between them has taken place or not, until the womancompletes three menstrual courses, or until she passes three months in case she isnonmenstruating. If in the meantime the other spouse is also converted, marriage will remainvalid, otherwise separation will take place on the expiry of the term. Imam Shafei, in this casealso, distinguishes between the occurrence of consummation and its non-occurrence. He maintainsthat if there was no consummation, separation would occur immediately on the event of thedifference of religion between the spouses. And if the difference of religion has occurred afterthe consummation, marriage will continue valid until the end of the waiting period. If in themeantime the other spouse does not accept Islam, marriage will dissolve as soon as the waitingperiod comes to an end. (Al Mabsut, Fath al-Qadir, Al-Jassas Ahkam al-Quran).
In case where along with the difference of religion between the spouses the separation of abodealso takes place, i.e. one of them remains an infidel in daral-kufr (the non-Muslim state) andthe other emigrates to dar al-lslam (the Islamic state), the Hanafi viewpoint is that marriagebetween them will automatically dissolve. If the emigrant is the woman, she has the right toremarry immediately; she does not have to observe any waiting period. However, her husband willhave to abstain from sexual intercourse until after she has discharged the menses once; and ifshe is pregnant, even then marriage can be contracted, but the husband must abstain fromcohabitation until after the delivery. Imam Muhammad and Imam Abu Yusuf have differed from ImamAbu Hanifah in this. They say that the woman has to observe the waiting period; and if she ispregnant, she cannot contract marriage before the delivery. (Al-Mabsut; Hedayah; AI-Jassas,Ahkam al-Quran). Imam Shafei, Imam Ahmad and Imam Malik maintain that the separation of abodehas nothing to do with this, for the real thing is only the difference of religions. If thisdifference takes place between the spouses, the injunctions to govern this are the same as thosewhich govern it in case such a difference takes place between the spouses in the Islamic state(Al-Mughni). Imam Shafei along with his above cited opinion has also expressed the view that ifthe emigrant Muslim woman has emigrated after a quarrel with her infidel husband, with theintention of dissolving his marital right, an immediate separation will take place not on thebasis of the separation of abode (ikhtilaf dar) but on the basis of her this intention.(Al-Mabsut Hedayah).
But a careful consideration of the Quranic verse under discussion clearly shows that in thismatter the most sound opinion is the one that Imam Abu Hanifah has expressed. Allah has sentdown this verse concerning the believing women who emigrated and about them He has said thatthey are no longer lawful for the pagan husbands whom they have left behind in dar al-kufr, andhas allowed the Muslims of the Islamic state to marry them after they have paid them the dowers.On the other hand, the emigrant Muslims have been addressed and enjoined not to keep those oftheir pagan wives in wedlock, who are left is dar alkufr, and to ask of the disbelievers thedowers that they had given to those women. Obviously, these injunctions do not pertain only tothe difference of religion, but it is the difference of abode that has given these injunctionsthis particular form. If on account of migration the marriages of the Muslim women with theirpagan husbands had not become dissolved, how could the Muslims be permitted to marry them. Andthat too in a way that the permission does not contain any reference to the observance of thewaiting period by them. Likewise, if even after the revelation of the command, “and you alsoshould not hold back unbelieving women in marriage” the pagan wives of the Muslim emigrants hadcontinued to be their wives, they also would have been commanded to divorce them. But there isno reference here to this either. No doubt, it is correct that after the revelation of thisverse, Umar and Talhah and some other emigrants had divorced their wives, but this is no proofthat such a thing was at all necessary, and their severing of the marital relationship withthose wives depended on their pronouncing divorce on them, and if they had not pronounced thedivorce, the wives would have continued to be their legal wives.
In response to this, three events of the Prophet’s (peace be upon him) time are quoted asprecedents, which are regarded as a proof that even after the revelation these verses theprophet (peace be upon him), in spite of the separation of abode, allowed the marriagerelationship to continue between the believing and the unbelieving spouses. The first event isthis, a little before the conquest of Makkah, Abu Sufyan visited the Islamic army at Marr az-Zahran (present Wadi Fatimah) and accepted Islam, and his wife, Hind, remained a pagan inMakkah. Then Hind accepted Islam after the conquest of Makkah, and the Prophet (peace be uponhim) ruled that their previous marriage would continue to be valid. The second event is thatafter the conquest of Makkah, Ikrimah bin Abu Jahl and Hakim bin Hizam fled Makkah and in theirabsence the wives of both became Muslims. Then they sought the Prophet’s protection for theirhusbands and went and brought them back. Both the men come before the Prophet (peace be uponhim) and accepted Islam and in their case too he held their previous marriages as valid. Thethird event relates to the Prophet’s (peace be upon him) own daughter, Zainab, who emigrated toAl-Madinah and her husband, Abul-Aas, was left an infidel in Makkah. About him Musnad Ahmad, AbuDaud, Tirmidhi and Ibn Majah contain a tradition on the authority of Ibn Abbas, saying that hecame to Al-Madinah in A.H. 8 and became a Muslim, and the Prophet (peace be upon him) allowedhis daughter to continue in marriage with him, without renewal of marriage. But the first two ofthese events, in fact, do not come under the definition of the difference of abode. For thedifference of abode does not mean a person’s temporarily leaving one place for another, or hisfleeting to another place, but the difference takes place only in case a person emigrates fromone place and settles down in another place and the difference of nationality takes placebetween him and his wife. As for the event relating to Zainab, there are two traditions, onerelated on the authority of Ibn Abbas, as referred to above, and the other related by ImamAhmad, Tirmidhi and Ibn Majah on the authority of Abdullah bin Amr bin Aas. In this secondtradition it has been stated that the Prophet (peace be upon him) allowed his daughter tocontinue as the wife of Abul- Aas after renewal of the marriage, and with a fresh dower. Thus,in the first place, this precedent, due to the difference in reporting, no longer remains adefinite argument with those who deny the legal effect of the separation of abode. Secondly, ifthey insist on the authenticity of Ibn Abbas’s tradition, it contradicts their own viewpoint.For, according to their viewpoint, the marriage of the spouses between whom difference ofreligion takes place and who have consummated their marriage remains valid only until threemenstruations. In the meantime if the other party also accepts Islam, the marriage continues tobe valid, otherwise it dissolves automatically as soon as the third menstrual course starts. Butin the case of Zainab from which they take their argument, the difference of religion betweenthe spouses had taken place several years earlier. Abul Aas had affirmed the faith six yearsafter Zainab’s emigration, and at least two years before his conversion to Islam the injunctionhad been revealed in the Quran, according to which the Muslim woman had been forbidden for thepagans.
(4) The fourth case is of apostasy. Its one form is that both the husband and the wife shouldbecome apostates together, and the other that one of them becomes an apostate and the otherremains a Muslim. If both the husband and the wife become apostates together, the Shafeis andthe Hanbalis say that their marriage contracted in Islam will dissolve immediately if thishappened before consummation, and after the lapse of the waiting period if it happened afterconsummation. On the contrary, the Hanafis hold the view that although according to common sensetheir marriage should dissolve, yet in the time of Abu Bakr, when thousands of people becameapostates, and then again became Muslims, the companions did not direct anyone to renew themarriage; therefore, we accept this unanimous decision of the companions and admit, contrary tocommon sense, that in case both the husband and the wife become apostates together, theirmarriages do not dissolve.(Al Mabsut; Hedayah; Fath al-Qadir Al-Fiqh alal-Madhahib al-Arbah).
If the husband becomes an apostate and the wife continues to be Muslim, according to the Hanafisand the Malikis, the marriage will dissolve immediately, whether this happens beforeconsummation or after it. But the Shafeis and the Hanbalis in this connection make a distinctionbetween the two states. If it happens before consummation, the marriage will dissolvedimmediately, and if it happens after consummation it will endure till the end of the waitingperiod, In the meantime if the person returns to Islam, marriage will continue to hold good,otherwise, on the expiry of the waiting period, it will be deemed to have dissolved since hebecame an apostate. That is, the woman will not have to observe another waiting period afresh.All the four jurists agree that if this happened before consummation, the woman would beentitled to half the dower, and if after consummation to full dower.
And if the woman became an apostate, the old ruling of the Hanafis was that in this case toomarriage would dissolve immediately. But later the scholars of Balkh and Samarkand gave theruling that in case the woman becomes an apostate, separation does not take place immediately;and by this their object was to discourage the women from adopting this course in order to getrid of their husbands. The Malikis verdict is somewhat similar. They say that if circumstancestestify that the woman adopted this course only as a pretence to win separation from thehusband, separation will not take place. The Shafeis and the Hanbalis say that in case of thewoman’s turning an apostate too, the law is the same as in case of the husband’s turning anapostate. That is, if she became an apostate before consummation, marriage would dissolveimmediately and if after consummation, Marriage will endure till the end of the waiting period.If conversion takes place in the meantime marriage will continue to hold good, otherwise it willbe deemed to have dissolved since the time of apostasy. There is consensus with regard to thedower. If the woman became an apostate, before consummation she would not be entitled to anydower, and if she adopted apostasy after consummation, she would be entitled to full dower.(Al-Mabsut. Hedayah; Fath al-Qadlr, Al Mughni; Al-Fiqh alal-Madhahib al-Arbah).
