Ala-Maududi
(60:10) Believers, when believing women come to you as Emigrants (in the cause of faith), examine
them. Allah fully knows (the truth) concerning their faith. And when you have ascertained them
to be believing women, do not send them back to the unbelievers.[14] Those women are
no 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 is
no offence for you to marry those women if you give them their bridal-dues.[15] Do
not hold on to your marriages with unbelieving women: ask for the return of the bridal-due you
gave to your unbelieving wives and the unbelievers may ask for the return of the bridal-due they
had given to their believing wives.[16] Such is Allah’s command. He judges between
you. Allah is All-Knowing, Most Wise.
14. The background of this injunction is that after the peace treaty of Hudaibiyah, in the
beginning, the Muslim men started fleeing Makkah, while arriving at Al-Madinah they were sent
back according to the terms of the treaty. Then the Muslim women started arriving and first of
all, Umm Kulthum Uqbah bin Abi Muait emigrated to Al- Madinah, The disbelievers invoked the
treaty and demanded return, and two brothers of Umm Kulthum, Walid bin Uqbah and Amarah bin
Uqbah, came to Al- Madinah to take her back. At this the question arose whether the treaty of
Hudaibiyah applied to the women as well. Allah has answered this very question here, saying: If
they are Muslims, and it is ascertained that they have emigrated only for the sake of the faith
and 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 of
the meaning and content, and it must be resolved. The traditions that are found in the Ahadith
about the conditions of the treaty of Hudaibiyah are mostly traditions narrated from the
viewpoint of the meaning and purport. About the condition under discussion the words in the
different traditions are different. In some the words are to the effect: Whoever reaches us from
you, we will not return him, but whoever reaches you from us, you shall return. In some others
the words are to the effect: Whoever of his companions comes to the Messenger (peace be upon
him) of Allah without the permission of his guardian, he will send him back. And in still
another, the words are: Whoever, from the Quraish goes to Muhammad (peace be upon him) without
the permission of his guardian, he will return him to Quraish. The style of these traditions by
itself shows that this condition of the treaty has not been reported in the actual words of the
treaty, but the reporters have reported its purport in their own words. But since most of the
traditions are of the same nature, the commentators and traditionists generally have understood
that the treaty was general, which applied to both men and women, and the women too were to be
returned according to it. Later, when this injunction of the Quran that the believing women were
not to be returned, came to their knowledge, they interpreted it to mean that Allah in this
verse had decided to break the treaty in so far as it related to the believing women. But this
was not an ordinary thing which should be accepted so easily. If the treaty was general, without
any exception in respect of men and women, it could not be lawful for one party to amend it
unilaterally and change a part of it by itself. And even if such a thing happened, it is strange
that the Quraish did not protest against it, whereas they remained on the lookout for an
opportunity to raise objections against everything that the Prophet (peace be upon him) and the
Muslims 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 that
they took an exception to this ruling of the Quran. Had this question been carefully considered
the problem could have been resolved by reference to the actual words of the treaty. But many
people paid no attention to it. If some scholars (e.g. Qadi Abu Bakr Ibn al-Arabi) did pay any
attention, they did not hesitate to say that the reason why the Quraish did not raise any
objection was that Allah had miraculously scaled their mouths in this matter. It is strange how
these scholars felt satisfied at this explanation.
The fact of the matter is that this condition of the peace treaty had been proposed by the
disbelieving Quraish, and not by the Muslims, and the words that Suhail bin Amr, their
representative, had gotten included in the treaty were: And that whichever man (rajul) come to
you from us, even if he be on your religion, you will return him to us. These words of the
treaty 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 meaning
of a person, but this might be the meaning he had in his mind. The word written in the treaty
was rajul, which is used for a fullgrown man in Arabic. That is why when the brothers of Umm
Kulthum bint Uqbah came to the Prophet (peace be upon him) and demanded her return, (according
to Imam Zuhri’s tradition), Holy Prophet (peace be upon him) refused to return her, saying: The
condition was about the men, not the women. (Ibn al-Arabi, Ahkam al-Quran; Loam Razi, Tafsir
Kabir) Until then the people of Quraish themselves were under the delusion that the treaty
applied to all kinds of emigrants, men or women; But when the Prophet (peace be upon him) drew
their attention to these words of the treaty, they were struck dumb and had to accept this
decision.
According to this condition of the treaty the Muslims had the right to decline return of any
woman who emigrated from Makkah to Al-Madinah for any reason whatsoever. But Islam was
interested only in safeguarding the believing women and not to make the holy city of Al-Madinah
a place of refuge for every kind of female fugitive. Therefore, Allah enjoined: Ascertain by
examination the faith of the women who emigrated to you and profess to have believed; and when
it is fully ascertained that they have emigrated with genuine faith, and no other motive, do not
return them. Thus, the procedure adopted for carrying out this command was that the women who
emigrated were questioned whether they believed in the oneness of Allah and the Prophethood of
Muhammad (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, or
love of somebody in Al-Madinah, or some other worldly motive. Only those women who gave
satisfactory answers to these questions were allowed to stay, others were sent back. (Ibn Jarir
on 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 further
clarification has been made by the procedure that the Prophet (peace be upon him) had prescribed
for 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 whether
they 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 by
them on oath should be relied on and it should be made sure after necessary examination that
they had no other motive of emigration than the faith. First, it gives the principle that for
taking decision on different matters it is not necessary for the court to have direct knowledge
of the truth; for the court only that knowledge is sufficient which is obtained through
evidence. Second, the statement given by a person on oath will be regarded as reliable until it
is proved to be false by a clear evidence. Third, whatever declaration a person himself may make
about his creed and faith, will be accepted and no search will be made into finding out, whether
what he states actually constitutes his faith or not, unless there is a clear indication to the
contrary. And fourth, in the personal affairs of a person, which no one else can know, his own
statement will be trusted. e.g. in the matters of divorce and the waiting period (iddat) the
woman’s own statement about her menstrual course and state of purity will be regarded as
reliable, whether it is true or false. According to these very rules, in the science of the
Hadith also, those traditions will be accepted, the apparent state of whose reporters testifies
to their being righteous, unless, of course, there are other circumstances which forbid the
acceptance of a particular tradition.
15. This means that, a Muslim who wants to marry any of these women should pay a fresh dower and
marry her. The dowers to he repaid to their unbelieving husbands will not be considered their
dowers.
16. Four very important injunctions have been laid down in these verses, which relate both to the
family law of Islam and to the international law.
First, that the woman who becomes a Muslim is no longer lawful for her unbelieving husband nor
her unbelieving husband is lawful for her.
Second, that the marriage of the married woman who becomes a Muslim and emigrates from the abode
of disbelief (dar al-kufr) to the abode of Islam (dar al-lslam) is automatically annulled, and
any 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 she
likes to remain an infidel.
Fourth, that if there exist relations of peace between the abode of disbelief and the abode of
Islam, the Islamic government should try to settle the question of the return of dowers with the
non-Muslim government, thus: The dowers of the married women of the disbelievers, who become
Muslims and emigrate to the abode of Islam, should be returned by the Muslims, and the dowers of
the 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, there
were many such men, who accepted Islam but their wives did not become Muslim, and there were
many such women who became Muslim but their husbands did not accept Islam. Abul Aas, the husband
of Zainab, a daughter of the Prophet (peace be upon him), was a non-Muslim and he remained
non-Muslim for several years. In the early period no command had been given to the effect that
the pagan husband was unlawful for the Muslim wife and the pagan wife was unlawful for the
Muslim husband. Therefore, the marital relations continued to exist between them. Even after the
migration for several years, it so happened that many women became Muslim and emigrated to
Al-Madinah while their pagan husbands remained in the abode of disbelief. Likewise, many Muslim
men emigrated and their pagan wives were left in the abode of disbelief. But in spite of this
their marriage continued. This was creating complications for the women in particular, for the
men could marry other women, but this was not possible for the women. Until their marriage with
their previous husbands was dissolved, they could not remarry. After the peace treaty of
Hudaibiyah when these verses came down, they annulled the previous marriage between the Muslims
and the pagans, and laid down an absolute and clear law for guidance in future. The jurists of
Islam 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 becomes
a 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 them
becomes 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 and
the 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 for
a Muslim to have a wife who is a follower of the earlier scriptures. This is agreed upon by all
jurists.
And if the wife of the man who has accepted Islam, is not a follower of the earlier Books, and
she adheres to her faith, the Hanafis say that Islam will be presented before her; if she
accepts it, the marriage will endure; if she refuses to accept it, separation will be effected
between them. In this case, if consummation between them had taken place, the woman will be
entitled to the dower; if there was no consummation, she will not be entitled to any dower, for
separation has been caused because of her refusal. (Al- Mabsut; Hedayah; Fath al-Qadir). Imam
Shafei and Imam Ahmad say that if the spouses did not have consummation, the woman would be
outside wedlock as soon as the man accepted Islam, and if consummation had taken place; the
woman will remain in wedlock till three menstruations. During this period if she accepts Islam
of her own free will, the marriage will continue, otherwise it will become void automatically as
soon as she is free from her third menstrual course. Imam Shafei also adds that it is not right
to present Islam before the woman on the basis of the pledge of non-interference in religion
that the dhimmis have been given by the Muslims. But this, in fact, is a weak argument; for it
would be interference in the dhimmi woman’s religion if she was compelled to accept Islam. It is
no interference to tell her that if she accepted Islam, she would continue to be her husband’s
wife, otherwise she would be separated from him. In Ali’s time there has been a precedent of
this nature. An Iraqi landowner who was a Majusi by religion accepted Islam and his wife
remained an unbeliever, AIi presented Islam before her, and when she refused to accept it, he
effected separation between them. (Al-Mabsut). Imam Malik says that if consummation has not
taken place, the unbelieving wife would forthwith cease to be the wife as soon as the man
embraced 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 a
follower of an earlier scripture or a non-follower, the Hanafis say that Islam will be presented
before 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 separation
between them. So long as the man does not refuse to accept Islam, the woman will remain his
wife, but he will not have the right to have sexual relations with her. In case the husband
refuses, separation will become effective just like an irrevocable divorce. If consummation has
not taken place before this, the woman will be entitled to half the dower, and if it has taken
place, 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 dissolve
as soon as the woman accepted Islam in case consummation has not taken place, and in case it has
taken place, the woman will continue to be the man’s wife till the end of the waiting period. If
in the mean-time he accepts Islam, marriage will remain valid, otherwise separation will take
place as soon as the waiting period comes to an end. But in the case of the man, Imam Shafei has
also expressed the same opinion as he has expressed about the woman as cited above. That is, it
is not right to present Islam before him. But this is a weak opinion. In the time of Umar, on
several occasions, the woman accepted Islam and the man was invited to Islam; when he refused to
accept it, separation was effected between the spouses. There is, for examples the case of the
wife 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 Caliph
enforced the decree. The case of a newly converted lady of Bahz al-Malik was sent to him. In her
case 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 the
companions and no dispute or difference of opinion has been reported. (AI-Jassas, Ahkam
al-Quran; Al Mabsut; Fath al-Qadir). Imam Malik’s opinion in this connection is that if the
woman becomes a Muslim before the consummation of marriage Islam should be presented before the
husband; if he accepts it, well and good; otherwise separation should be effected forthwith. And
if consummation has taken place, and the woman has accepted Islam afterwards, she will have to
wait till the end of the waiting period. If the husband accepts Islam in the meantime, marriage
will continue otherwise separation will take place as soon as the waiting period expires. A
saying of Imam Ahmad is in support of Imam Shafei. His other saying is to the effect that the
event of the difference of religion between the spouses will in any case lead to immediate
separation, 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 an
infidel, or the man becomes a Muslim and the wife (who neither is Christian nor Jew but is
follower of a non-revealed religion) remains an infidel, the Hanafi viewpoint is that separation
will not take place, whether consummation between them has taken place or not, until the woman
completes three menstrual courses, or until she passes three months in case she is
nonmenstruating. If in the meantime the other spouse is also converted, marriage will remain
valid, otherwise separation will take place on the expiry of the term. Imam Shafei, in this case
also, distinguishes between the occurrence of consummation and its non-occurrence. He maintains
that if there was no consummation, separation would occur immediately on the event of the
difference of religion between the spouses. And if the difference of religion has occurred after
the consummation, marriage will continue valid until the end of the waiting period. If in the
meantime the other spouse does not accept Islam, marriage will dissolve as soon as the waiting
period 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 abode
also takes place, i.e. one of them remains an infidel in daral-kufr (the non-Muslim state) and
the other emigrates to dar al-lslam (the Islamic state), the Hanafi viewpoint is that marriage
between them will automatically dissolve. If the emigrant is the woman, she has the right to
remarry immediately; she does not have to observe any waiting period. However, her husband will
have to abstain from sexual intercourse until after she has discharged the menses once; and if
she is pregnant, even then marriage can be contracted, but the husband must abstain from
cohabitation until after the delivery. Imam Muhammad and Imam Abu Yusuf have differed from Imam
Abu Hanifah in this. They say that the woman has to observe the waiting period; and if she is
pregnant, 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 abode
has nothing to do with this, for the real thing is only the difference of religions. If this
difference takes place between the spouses, the injunctions to govern this are the same as those
which 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 if
the emigrant Muslim woman has emigrated after a quarrel with her infidel husband, with the
intention of dissolving his marital right, an immediate separation will take place not on the
basis 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 this
matter the most sound opinion is the one that Imam Abu Hanifah has expressed. Allah has sent
down this verse concerning the believing women who emigrated and about them He has said that
they are no longer lawful for the pagan husbands whom they have left behind in dar al-kufr, and
has 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 of
their pagan wives in wedlock, who are left is dar alkufr, and to ask of the disbelievers the
dowers that they had given to those women. Obviously, these injunctions do not pertain only to
the difference of religion, but it is the difference of abode that has given these injunctions
this particular form. If on account of migration the marriages of the Muslim women with their
pagan husbands had not become dissolved, how could the Muslims be permitted to marry them. And
that too in a way that the permission does not contain any reference to the observance of the
waiting period by them. Likewise, if even after the revelation of the command, “and you also
should not hold back unbelieving women in marriage” the pagan wives of the Muslim emigrants had
continued to be their wives, they also would have been commanded to divorce them. But there is
no reference here to this either. No doubt, it is correct that after the revelation of this
verse, Umar and Talhah and some other emigrants had divorced their wives, but this is no proof
that such a thing was at all necessary, and their severing of the marital relationship with
those wives depended on their pronouncing divorce on them, and if they had not pronounced the
divorce, 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 as
precedents, which are regarded as a proof that even after the revelation these verses the
prophet (peace be upon him), in spite of the separation of abode, allowed the marriage
relationship to continue between the believing and the unbelieving spouses. The first event is
this, 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 in
Makkah. Then Hind accepted Islam after the conquest of Makkah, and the Prophet (peace be upon
him) ruled that their previous marriage would continue to be valid. The second event is that
after the conquest of Makkah, Ikrimah bin Abu Jahl and Hakim bin Hizam fled Makkah and in their
absence the wives of both became Muslims. Then they sought the Prophet’s protection for their
husbands and went and brought them back. Both the men come before the Prophet (peace be upon
him) and accepted Islam and in their case too he held their previous marriages as valid. The
third event relates to the Prophet’s (peace be upon him) own daughter, Zainab, who emigrated to
Al-Madinah and her husband, Abul-Aas, was left an infidel in Makkah. About him Musnad Ahmad, Abu
Daud, Tirmidhi and Ibn Majah contain a tradition on the authority of Ibn Abbas, saying that he
came to Al-Madinah in A.H. 8 and became a Muslim, and the Prophet (peace be upon him) allowed
his daughter to continue in marriage with him, without renewal of marriage. But the first two of
these events, in fact, do not come under the definition of the difference of abode. For the
difference of abode does not mean a person’s temporarily leaving one place for another, or his
fleeting to another place, but the difference takes place only in case a person emigrates from
one place and settles down in another place and the difference of nationality takes place
between him and his wife. As for the event relating to Zainab, there are two traditions, one
related on the authority of Ibn Abbas, as referred to above, and the other related by Imam
Ahmad, Tirmidhi and Ibn Majah on the authority of Abdullah bin Amr bin Aas. In this second
tradition it has been stated that the Prophet (peace be upon him) allowed his daughter to
continue 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 a
definite argument with those who deny the legal effect of the separation of abode. Secondly, if
they 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 of
religion takes place and who have consummated their marriage remains valid only until three
menstruations. In the meantime if the other party also accepts Islam, the marriage continues to
be valid, otherwise it dissolves automatically as soon as the third menstrual course starts. But
in the case of Zainab from which they take their argument, the difference of religion between
the spouses had taken place several years earlier. Abul Aas had affirmed the faith six years
after Zainab’s emigration, and at least two years before his conversion to Islam the injunction
had been revealed in the Quran, according to which the Muslim woman had been forbidden for the
pagans.
(4) The fourth case is of apostasy. Its one form is that both the husband and the wife should
become apostates together, and the other that one of them becomes an apostate and the other
remains a Muslim. If both the husband and the wife become apostates together, the Shafeis and
the Hanbalis say that their marriage contracted in Islam will dissolve immediately if this
happened before consummation, and after the lapse of the waiting period if it happened after
consummation. On the contrary, the Hanafis hold the view that although according to common sense
their marriage should dissolve, yet in the time of Abu Bakr, when thousands of people became
apostates, and then again became Muslims, the companions did not direct anyone to renew the
marriage; therefore, we accept this unanimous decision of the companions and admit, contrary to
common sense, that in case both the husband and the wife become apostates together, their
marriages 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 Hanafis
and the Malikis, the marriage will dissolve immediately, whether this happens before
consummation or after it. But the Shafeis and the Hanbalis in this connection make a distinction
between the two states. If it happens before consummation, the marriage will dissolved
immediately, and if it happens after consummation it will endure till the end of the waiting
period, 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 he
became 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 be
entitled 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 too
marriage would dissolve immediately. But later the scholars of Balkh and Samarkand gave the
ruling 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 get
rid of their husbands. The Malikis verdict is somewhat similar. They say that if circumstances
testify that the woman adopted this course only as a pretence to win separation from the
husband, separation will not take place. The Shafeis and the Hanbalis say that in case of the
woman’s turning an apostate too, the law is the same as in case of the husband’s turning an
apostate. That is, if she became an apostate before consummation, marriage would dissolve
immediately 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 will
be deemed to have dissolved since the time of apostasy. There is consensus with regard to the
dower. If the woman became an apostate, before consummation she would not be entitled to any
dower, 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).
