How did Legislation evolve for this issue during the time of the Prophet Muhammad ﷺ?

 

Rather than look at each opinion separately and their own evidences and merits, I thought it might be better to discuss this issue by looking first to the evidence that the scholars based their opinions on, exactly as it was revealed. Like so many other issues the scholars differed over, they each rely on the exact same evidence, but merely differ over its interpretation.

 

The Muslims in Mecca

Nearly all Islamic injunctions that we put under the heading of “family law” were revealed after the Muslims secured a footing in Medinah, and their existence wasn’t under immediate threat. Before the hijrah, Allah primarily commanded chastity through marriage and patience with faith regardless of whatever one or the other spouse declared as conviction or would worship. So faith-matching in marriage was not a fundamental of the religion revealed in Mecca. One narration reports that some of Quraish went to the polytheist husbands of the Prophet’s daughters to divorce them, so that the women and young children would return to the Prophet’s home and keep him too busy for da`wah [al-Mu`jam al-Kabeer, no. 18517, 22/427-428]. In the beginning, Islam acknowledged the marital bonds of jāhiliyyah. Some of those who entered faith were men with disbelieving wives, and others were women with disbelieving husbands. The most well-known example was Zainab bint Muhammad and her husband Abu al-`Ās.

 

The verse from al-Baqarah

Soon after the Muslims came to Medinah, their social lives changed dramatically. They were able to worship openly without fear of persecution. In fact, the political head was none other than their religious leader, legislator, and primary advocate. They built a masjid. And then the Quran started coming down again. Scholars generally agree that the first chapters to come down in Medinah were al-Muṭaffifīn and al-Baqarah. From the verses revealed at this time in al-Baqarah are Allah’s Words:

{ وَلَا تَنْكِحُوا الْمُشْرِكَاتِ حَتَّى يُؤْمِنَّ وَلَأَمَةٌ مُؤْمِنَةٌ خَيْرٌ مِنْ مُشْرِكَةٍ وَلَوْ أَعْجَبَتْكُمْ وَلَا تُنْكِحُوا الْمُشْرِكِينَ حَتَّى يُؤْمِنُوا وَلَعَبْدٌ مُؤْمِنٌ خَيْرٌ مِنْ مُشْرِكٍ وَلَوْ أَعْجَبَكُمْ أُولَئِكَ يَدْعُونَ إِلَى النَّارِ وَاللَّهُ يَدْعُو إِلَى الْجَنَّةِ وَالْمَغْفِرَةِ بِإِذْنِهِ وَيُبَيِّنُ آيَاتِهِ لِلنَّاسِ لَعَلَّهُمْ يَتَذَكَّرُونَ} ﴿٢٢١﴾ سورة البقرة

“And do not marry idolatresses until they believe. And indeed a slave woman who believes is better than a free idolatress, even though she pleases you. And give not your daughters in marriage to idolaters until they believe. And verily, a believing slave is better than a free idolater even though he pleases you. They invite you to the Fire, but Allah invites to Paradise and forgiveness by His Leave, and makes His Signs clear to mankind that they may remember.” [2:221]

Quite obviously from the ayah’s text, the `illah or cause for ruling, is incompatible religion, and it is from the noble Sharia objective of preserving religion. Who can argue otherwise, having an intimate partnership with someone of a different faith is a strong temptation to compromise.

But what’s both interesting and important to note about this ayah, was that when it was revealed, the companions of the Prophet ﷺ did not understand the nahī (the “do not”, or prohibitive command) as being obligatory and requiring immediate action. There are no reports from the Prophet ﷺ that he ordered any of his companions to divorce their polytheistic spouses, or consider such marital agreements invalid.

There are a couple possible explanations for this.

1. The companions could have understood the ayah’s prohibition as being a prohibition to initiate any new marital contract with a non-Muslim, while acknowledging anything previously made as being pardoned, like illa ma qad salaf. The phrase illa ma qad salaf (except what happened in the past) appears in the Quran referring to two different types of forbidden marriage – simultaneously marrying two sisters, and marrying the ex-wife of one’s father. Al-Qurṭubī (5/119) noted most scholars agree that the phrase means that such marriages a person contracted from the past before Islam will not count against them as sinful (perhaps assuming they nullify the marriage once the ruling reaches them) and that any children from those marriages are considered legitimate. Muhammad Hasan al-Shaybānī (d. 189 / 805) believed that the reason the phrase was mentioned in these two circumstances, and none other, was because that’s something that Arabs practiced, and did not consider it reprehensible or forbidden, unlike the other examples. If that is the case, then this is a strong possibility for why the companions did not take any action after the verse was revealed. Al-Qurṭubī (d. 671) also stated:

وَيَحْتَمِلُ مَعْنًى زَائِدًا وَهُوَ جَوَازُ مَا سَلَفَ، وَأَنَّهُ إِذَا جَرَى الْجَمْعُ فِي الْجَاهِلِيَّةِ كَانَ النِّكَاحُ صَحِيحًا… مِنْ غَيْرِ إِجْرَاءِ عُقُودِ الْكُفَّارِ عَلَى مُوجِبِ الْإِسْلَامِ وَمُقْتَضَى الشَّرْعِ

“And [the Quranic phrase illa ma qad salaf] could carry added meaning [in addition to what was previously stated: removal of sin from the past marriage and recognizing any resulting children as legitimate] which is acknowledgement of what was started in past. Which is if [being married to two sisters at once] was allowed before Islam, then the contract remains valid, without subjecting the old but active contracts to the rule of Islam and necessities of the Sharia.”

Also note that this reminds us of the famous theoretical usul issue: are the disbelievers accountable for adhering to the detailed rulings of Islam, or just the call to accept faith first? It may not matter here, because without any dispute, new Muslims do not make up prayers from before faith. Could marriage contracts be affected by this?

This also proves that Islam may give leeway in allowing something negative persist, while it would not give leeway in allowing that same negative thing be initiated. The most famous example of this is when the Bedouin urinated in the masjid in front of the Prophet ﷺ and his companions, not knowing better. The Prophet ﷺ did not want to interrupt him while he was in progress and even forbade others from disturbing him until he finished. It is possible that some prohibited marital contracts enjoy a similar status as the actions of the companions denote.

1. The other possible explanation for the lack of action from the companions when this ayah was revealed is that they may have considered the prohibition akin to dislike makrūh and not the type of forbiddance taḥrīm or nahī that necessitates fasād, invalidity. If this is the case, then starting such a contract would be allowed yet disliked but not forbidden. Or the sin of such a contract was small, not enough to invalidate it. This would be like another seeming prohibition in the exact same chapter, only 2 verses prior, when Allah clearly says that alcohol and gambling are “big sin”, but yet the companions, famously, did not consider this ayah as prohibitive.

{يَسْأَلُونَكَ عَنِ الْخَمْرِ وَالْمَيْسِرِ ۖ قُلْ فِيهِمَا إِثْمٌ كَبِيرٌ وَمَنَافِعُ لِلنَّاسِ وَإِثْمُهُمَا أَكْبَرُ مِن نَّفْعِهِمَا ۗ } ﴿٢١٩﴾ سورة البقرة

“They ask you about alcohol and gambling. Say: in them is great sin and benefits for people, but the sin of them is greater than their benefits.”

Even though the ayah above clearly says that [drinking] alcohol is sinful, along with gambling, ironically, the companions of the Prophet ﷺ did not interpret it as a prohibition and forbiddance until the ayah of al-Mā’idah was revealed, as most books of tafsīr will recall the evolution of alcohol prohibition with ayah 90 of that chapter.

The jurists and scholars of tafsīr paid little attention to this historical point regarding religious compatibility in marriage, and generally considered ayah 221 as being prohibitive, and that ayah 5 of Mā’idah allowing Muslim men to marry Christian and Jewish women was an exclusionary abrogation (naskh istithna’i) or specific allowance (dalīl khāṣṣ). If that is the case, which is what most hold (see Tafsir ibn al-Jawzi 1/187-189), then we can conclude that the companions did not take action because they believed the ayah only forbade starting a new contract, which may also be understood by its grammar, tankihu and tunkihu. Otherwise, the rhetorical devices of ayah 221 remind me of the rhetoric of 219 regarding alcohol, as Allah seems to say in each ayah, there are pluses and minuses, but they are imbalanced. This makes me feel, from a purely rhetorical and historical view, that my second suggested opinion is stronger, but since no scholar I know of before voiced it, I am less inclined to favor it or be the first to purport it. Plus, the sabab al-nuzul (cause of revelation) supports the idea of forbidding starting a new contract, as Abu Marthad al-Ghanawi reportedly asked the Prophet ﷺ if he could marry a former girlfriend he had in Mecca, prompting the ayah’s revelation. However, this leaves the question, did the companion abstain from that because the ayah clearly forbade starting a new contract, or because he wanted to do what was best, even if it was not a strong forbiddance?

Concerning the issue of our research, it actually doesn’t matter too much, because this isn’t the main evidence we have to look at, plus the companions did not immediately act on it, which gives us reason not to act on it either–concerning marriages we may have contracted before knowing better. Nonetheless, Muslim jurists have agreed that a Muslim woman cannot start a new marriage contract with a non-Muslim man, regardless of his beauty, wealth, lineage, ethnicity, power or connections, fertility, manners, morals, love, or religion if it is not Islam, and that such a marriage, even if conducted with proper Islamic ceremony, is false (bāṭil) in front of the Sharia. But as for remaining in such a marriage that one conducted beforehand, this ayah alone does not seem to forbid it. How do I know? We will see very soon that the companions did not divorce their polytheistic wives until another verse was revealed, which is the primary focus of this study. And Allah Knows best.

 

The Capturing of Zainab’s Husband

Then, the great battle of Badr took place in Ramadan of the 2^nd year after the Prophet’s migration. The Muslims took 70 captives from Quraish, and one of them was Abu al-`Ās, the son-in-law of the Prophet Muhammad ﷺ, who was still married with his daughter Zainab in Mecca. Most of the prisoners secured their freedom by offering the Muslims some kind of benefit, whether it was money or teaching Muslim children how to read and write. As for Abu al-`As, Zainab first sent a necklace that she inherited from her mother. When the Prophet ﷺ saw Khadijah’s jewelry, his heart softened and ached, and he made it a condition for Abu al-`As’s freedom, that he send his daughter back to him.

Why did the Prophet ﷺ ask for his daughter back? The narrations do not explain. There are several possibilities. One of which is religious incompatibility, like the ayah of al-Baqarah would suggest. However, if that were the case, the Prophet ﷺ would have probably asked for his daughter back before the necklace was sent. Another possibility is fear for his daughter’s safety if she remained in Mecca, after total war broke out between the Muslims and Quraish, and the Quraish suffered a humiliating defeat that they felt the need to inflict an equally humiliating vengeance upon the Muslims and the Prophet of Islam. Another possibility is simply that, after seeing his first wife’s necklace, he missed her greatly, and missed his first daughter from her, and used this situation as a means of reuniting after not seeing her for a year and a half.

Here’s the wording in Abu Dawud (no. 2320):

أَخَذَ عَلَيْهِ أَوْ وَعَدَهُ أَنْ يُخَلِّيَ سَبِيلَ زَيْنَبَ إِلَيْهِ

“He made an agreement with him or promise for Zainab to go to him.”

The actual Arabic text reminds us of a subtle but popular Arabic expression of divorce, like “join your family” (ilḥaqī bi-ahliki). So it’s possible that when the Prophet ﷺ sought Abu al-`Ās to send Zainab to him, it was in reality, asking Abu al-`Ās to divorce Zaynab and send her to him. This would not be too surprising. And if this is the case, then even this story would be inadmissible as evidence. The Prophet ﷺ did not tell any of his companions to divorce the spouses they left behind in Mecca, even though there were plenty of opportunities, this being one. This proves that the Prophet’s request here was purely personal, whether or not it included divorce, which the narrations are not explicit about.

Zainab then went to Medinah, where her daughter Umāmah from Abu al-`As would be raised with the Prophet ﷺ. It is not known whether Umāmah was born in Mecca, before or after the Prophet’s hijrah, or if Zainab was pregnant and gave birth to her in Medinah. One thing mentioned by the books of history is that after the Prophet’s death, Umāmah was transferred to the care of al-Zubair who married her to `Ali, after Fatimah’s death, in the 12^th year after hijrah.

 

The Verse of al-Mumtaḥinah

After the battle of Badr, Uhud and al-Khandaq, the Ṣulḥ of Hudaibiyah was drafted and signed between Quraish and the Prophet Muhammad ﷺ in Dhul-Qa`dah of the 6^th year after hijrah. From its conditions was that if any Muslims from Mecca fled to Medinah after the pact was signed, then the Meccans had right to have them returned. But then Allah revealed that Muslim women should not be included in this, advising the Muslims to take advantage of only Muslim [males] being mentioned specifically by the contract. Allah said:

{يَا أَيُّهَا الَّذِينَ آمَنُوا إِذَا جَاءَكُمُ الْمُؤْمِنَاتُ مُهَاجِرَاتٍ فَامْتَحِنُوهُنَّ ۖ اللَّـهُ أَعْلَمُ بِإِيمَانِهِنَّ ۖ فَإِنْ عَلِمْتُمُوهُنَّ مُؤْمِنَاتٍ فَلَا تَرْجِعُوهُنَّ إِلَى الْكُفَّارِ ۖ لَا هُنَّ حِلٌّ لَّهُمْ وَلَا هُمْ يَحِلُّونَ لَهُنَّ ۖ وَآتُوهُم مَّا أَنفَقُوا ۚ وَلَا جُنَاحَ عَلَيْكُمْ أَن تَنكِحُوهُنَّ إِذَا آتَيْتُمُوهُنَّ أُجُورَهُنَّ ۚ وَلَا تُمْسِكُوا بِعِصَمِ الْكَوَافِرِ وَاسْأَلُوا مَا أَنفَقْتُمْ وَلْيَسْأَلُوا مَا أَنفَقُوا ۚ ذَٰلِكُمْ حُكْمُ اللَّـهِ ۖ يَحْكُمُ بَيْنَكُمْ ۚ وَاللَّـهُ عَلِيمٌ حَكِيمٌ} ﴿١٠﴾ سورة الممتحنة

“O you who believe! When believing women come to you as emigrants, examine them; Allah knows best as to their Faith. Then if you ascertain that they are true believers do not return them to the disbelievers. They are not lawful (wives) for the disbelievers nor are the disbelievers lawful (husbands) for them. But give them (disbelievers) that (amount of money) which they have spent (as their Mahr) on them. And there will be no sin on you (Muslim men) to marry them if you have paid their Mahr to them. Likewise hold not the disbelieving women as wives, and ask for (the return of) that which you have spent (as Mahr) and let them (the disbelievers) ask back for that which they have spent. That is the Judgement of Allah, He judges between you. And Allah is All-Knowing, All-Wise.” [al-Mumtaḥinah 60:10]

The most important phrases of this ayah are in bold. We will study each. But first of all, what was the immediate affect the ayah had?

When this ayah was revealed, `Umar ibn al-Khaṭṭāb divorced two polytheist wives he had in Mecca that did not emigrate with him to Medinah (see al-Qurṭubī, 18/65) in accordance with Allah’s words “ولا تمسكوا بعصم الكوافر” which al-Tafsir al-Muyassar explains as meaning:

لا تمسكوا بنكاح أزواجكم الكافرات

“Do not hold onto the marriages of your disbelieving wives.” In other words, let go of those marriages, i.e. divorce them.

`Umar’s action at this juncture, like other companions who followed suit, shows that this was the first clear forbiddance of Muslim men to even continue with marriages that they started before Islam. So while the verse from al-Baqarah might have forbade initiation, the verse from al-Mumtaḥinah forbade continuance. Can we then say more rightfully or “من باب أَولى” that Muslim women shouldn’t hold onto their marriages with disbelieving men? To be honest, it would not seem so, since women have never held that right to dissolve a marriage, and because the phrase’s linguistic choices are very specific, as kawāfir is a plural that can only be applied to women, not men. Rightly so, most jurists did not cite that phrase as indicative of nullifying marital contracts between believing women and disbelieving men. But for those who did, is that really a necessity of the phrase? There are many qualities women possess over men, as some recent studies indicate and even the Prophet ﷺ testified:

ما رَأَيْتُ مِنْ نَاقِصَاتِ عَقْلٍ وَدِينٍ أَذْهَبَ لِلُبِّ الرَّجُلِ الْحَازِمِ مِنْ إِحْدَاكُنَّ

“I have not seen any, while possessing deficient intellect and faith, greater at captivating the minds of even the most stubborn of men than any of you women.” Recorded by al-Bukhari

A woman could, as women have, use these abilities to sway her husband to loving what she loves, or at the very least, facilitating her. So are women necessarily more rightly excluded or more rightfully prohibited from anything and everything that Muslim men are forbidden of? Something to consider, as the Prophet ﷺ was known to gloss over a woman looking at a man in some circumstances, while a man’s gaze was not as easily forgiven. ^[1]I am recalling the Prophet allowing `Aishah his wife viewing the Ethiopian gymnasts, and yet he forbade al-Fadl ibn al-`Abbaas to look at the woman from al-Khath`am during hajj. Gender psychologists … Continue reading

But the most oft-cited phrase from this ayah that concerns our topic is “those women are not halal for those men and those men are not halal for those women,” or {لا هن حل لهم ولا هم يحلون لهن}.  So who are hunn or “those women”? We see this pronoun used multiple times throughout the verse. The first times we see it is, “so test those women, Allah knows best about the faith of those women.” So again, who are those women? Go back to the beginning of the verse. They are the believing women that emigrated to the land of Islam. They are not every single believing woman, as the Prophet ﷺ did not immediately test all believing women. The sabab al-nuzul cause of revelation also supports this, as companions later described that some women fled Mecca simply due to anger at their husbands and claimed to be joining the Muslims, but not out of sincere conviction. Allah knew what was in their hearts, so He told the Prophet ﷺ not to accept every single woman who comes from Mecca, but only accept the true believers that fled with their religion.

And linguistically—as we are forbidden to ever explain the Quran without considering the mechanics of the Arabic language—we see that this ayah is a conditional ayah. The condition begins with idha near the beginning, “if/when believing women emigrate to you…” The response begins with fa’ in Allah’s phrase “so/then test those women; Allah knows best about their faith.” And then another conditional begins, with the Arabic in this time (which has a similar meaning to idha except implying lesser likelihood of actually happening) “so if you know those women to be believers…” And then the resulting response with fa’, after stating the condition, “so do not return them to the disbelievers; those women are not halal for them and they are not halal for those women.” This entire verse is talking about women who fled with their religion from Mecca to Medinah, or to the abode of Islam, where they feel safe to practice Islam without persecution, if we were to put this in universal terms. Linguistically, the response to a conditional is irrelevant if the condition is not present.

It seems from this verse that a new Muslim woman whose faith is weak and or she relies completely on her husband to provide and care for her and she has little or no ability to leave his dwelling, then the conditions are not present, and thus, the response cannot be realized either. There is no forbiddance of returning to the disbelievers what is not in our possession. They have yet to emigrate from the disbelievers’ dwellings. It is more than reminiscent of the ayah in al-Anfāl:

{إِنَّ الَّذِينَ آمَنُوا وَهَاجَرُوا وَجَاهَدُوا بِأَمْوَالِهِمْ وَأَنفُسِهِمْ فِي سَبِيلِ اللَّـهِ وَالَّذِينَ آوَوا وَّنَصَرُوا أُولَـٰئِكَ بَعْضُهُمْ أَوْلِيَاءُ بَعْضٍ ۚ وَالَّذِينَ آمَنُوا وَلَمْ يُهَاجِرُوا مَا لَكُم مِّن وَلَايَتِهِم مِّن شَيْءٍ حَتَّىٰ يُهَاجِرُوا ۚ وَإِنِ اسْتَنصَرُوكُمْ فِي الدِّينِ فَعَلَيْكُمُ النَّصْرُ إِلَّا عَلَىٰ قَوْمٍ بَيْنَكُمْ وَبَيْنَهُم مِّيثَاقٌ ۗ وَاللَّـهُ بِمَا تَعْمَلُونَ بَصِيرٌ} ﴿٧٢﴾ سورة الأنفال

“Truly, those who’ve believed and emigrated and fought with their wealth and selves for Allah’s Cause, and those who sheltered and helped, they are guardians to one another. And those who’ve believed but have yet to emigrate, you owe them no guardianship until they emigrate. But if they seek your support in faith, you must aid them, except against a people with whom you have a treaty. And Allah is Seeing of all that you do.”

There are some differences of rules and recognitions between the Muslims that live in Muslim lands versus the Muslims who do not. There are other examples of this from the Sunnah.

But this was precisely what Abu Hanifa saw that was hidden from the view of other jurists that gave the ayah less thought. Al-Qurṭubī said (18/63-64),

وَهَذَا أَدَلُّ دَلِيلٍ عَلَى أَنَّ الَّذِي أَوْجَبَ فُرْقَةَ الْمُسْلِمَةِ مِنْ زَوْجِهَا إِسْلَامُهَا لَا هِجْرَتُهَا. وَقَالَ أَبُو حَنِيفَةَ: الَّذِي فَرَّقَ بَيْنَهُمَا هُوَ اخْتِلَافُ الدارين. وإليه إشارة في مذهب مالك بل عبارة

“And this is the most indicative evidence that Islam necessitates the separation [of marriage] between a Muslim woman and her husband, not emigrating. Abu Hanifa said: what separates them is their differing abodes. And the school of Malik contains a hint at that as well; actually, a statement.”

However, al-Qurṭubī merely relied on the phrase by itself without following the pronouns or the conditionals, as is clear from the context, which is why he did not see the strength of Abu Hanifa’s opinion, or give more consideration to this opinion existing within his own school. Abu Hanifa and Imam Malik are not the only ones who saw this possibility. Ibn Ḥazm, a first rate scholar of Arabic also accepted emigration, or fleeing with one’s faith, as a valid `illah cause for the ruling necessitating the dissolution of a marriage. However, ibn Ḥazm overlooking the historical circumstances surrounding the verse, and relied solely on a general Prophetic narration to support his original view, saying that hijrah is migrating from what Allah forbade, and that this is realized merely be accepting Islam. I don’t know any other scholar of Islam, jurist or exegete, to agree that such is the hijrah meant in this ayah. It makes the ayah redundant and deflating.

Other scholars believed that the `illah or cause for the ruling, was mere disbelief, which is why they said disbelief of a man does not mix with faith of a woman in marriage, as we saw from al-Qurṭubī before.

Then al-Qurṭubī said, explaining another part of the ayah:

أَمَرَ اللَّهُ تَعَالَى إِذَا أُمْسِكَتِ الْمَرْأَةُ الْمُسْلِمَةُ أَنْ يُرَدَّ عَلَى زَوْجِهَا مَا أَنْفَقَ وَذَلِكَ مِنَ الْوَفَاءِ بِالْعَهْدِ، لِأَنَّهُ لَمَّا مُنِعَ مِنْ أَهْلِهِ بِحُرْمَةِ الْإِسْلَامِ، أَمَرَ بِرَدِّ الْمَالِ إِلَيْهِ حَتَّى لَا يَقَعُ عَلَيْهِمْ خُسْرَانٌ مِنَ الْوَجْهَيْنِ: الزَّوْجَةِ وَالْمَالِ

“Allah commanded that if the Muslim woman is being kept with the Muslims, that whatever the husband gave her [in exchange for her hand in marriage] should be returned to him, as fulfillment of treaty, and since he has been forbidden from his wife by the sanctity of Islam, [Allah] commanded that his wealth be returned to him, so that he does not experience loss from two angles: wife and wealth.”

The Permanent Committee, based in Saudi Arabia, was the only fatwa body that added this clause just as Allah did. However, its application in the West is difficult to summon, since there is no bridal dowry given specifically from the husband to the wife in exchange for access to her body, as conditioned for Sharia marriages. The closest equivalent might be returning the wedding band to him, and any other related anniversary gifts, and jewelry, or covering divorce expenses, and Allah knows best. But in any case, there is no doubt that this is from iḥsān and might make the man think better about Islam and the Muslims.

In any case, it seems the jurists agreed that the verse from al-Baqarah was not definitive enough, and that the truly decisive verse is from al-Mumtaḥinah. Mainstream jurists then use the phrase “those women are not halal for them, and they are not halal for those women” beyond contexts that mimic the situation of that time or the verse’s text, leaving one’s home for the Muslims. Instead, they took that one phrase and made it general and encompassing, putting aside any linguistic or contextual evidence that it was only applicable for a specific married Muslim convert. They held it to be like other verses where a seemingly specific phrase carried wider and general application, for example:

{مَّا أَفَاءَ اللَّـهُ عَلَىٰ رَسُولِهِ مِنْ أَهْلِ الْقُرَىٰ فَلِلَّـهِ وَلِلرَّسُولِ وَلِذِي الْقُرْبَىٰ وَالْيَتَامَىٰ وَالْمَسَاكِينِ وَابْنِ السَّبِيلِ كَيْ لَا يَكُونَ دُولَةً بَيْنَ الْأَغْنِيَاءِ مِنكُمْ ۚ وَمَا آتَاكُمُ الرَّسُولُ فَخُذُوهُ وَمَا نَهَاكُمْ عَنْهُ فَانتَهُوا ۚ وَاتَّقُوا اللَّـهَ ۖ إِنَّ اللَّـهَ شَدِيدُ الْعِقَابِ} ﴿٧﴾ سورة الحشر

“What Allah gave as spoils to His Messenger from the people of the townships – it is for Allah, His Messenger, his kindred, the orphans, the needy and the wayfarer, in order that it may not become a fortune used by the rich among you. And whatsoever the Messenger gives you, take it; and whatsoever he forbids you, abstain. And fear Allah; Truly, Allah is Severe in punishment.” [Al-Hashr 59:7]

Not only tangible offerings but whatever the Prophet gave us of knowledge and command, and whatever he forbade. However, with this verse, the language of this phrase changes so that it can be universally applicable. There are no pronouns referring to anything of the previous context. And instead of Allah saying “…and whatever he doesn’t give you, don’t ask…” Allah said, “whatever he forbids you” strongly indicating that Allah truly did in fact intend for this statement to be interpreted and applied much further beyond the scope of distributing war spoils. Similar to this is the command to cooperate in good and righteous causes but not to assist in sinful or nefarious causes from al-Mā’idah 5:2.

But the best example of an ayah where something specific is made very general could be…

{وَإِنْ خِفْتُمْ أَلَّا تُقْسِطُوا فِي الْيَتَامَىٰ فَانكِحُوا مَا طَابَ لَكُم مِّنَ النِّسَاءِ مَثْنَىٰ وَثُلَاثَ وَرُبَاعَ ۖ فَإِنْ خِفْتُمْ أَلَّا تَعْدِلُوا فَوَاحِدَةً أَوْ مَا مَلَكَتْ أَيْمَانُكُمْ ۚ ذَٰلِكَ أَدْنَىٰ أَلَّا تَعُولُوا} ﴿٣﴾ سورة النساء

“And if you fear that you shall not be able to deal justly with the orphan girls then marry (other) women of your choice, two or three, or four; but if you fear that you shall not be able to deal justly (with them), then only one or (slaves) that your right hands possess. That is nearer to prevent you from doing injustice.” [al-Nisa’ 4:3]

No classical or medieval scholar claimed that marrying more than one woman was conditional upon raising orphan girls at the same time. But to be fair, those scholars had more than one ayah as evidence, but also the overwhelmingly numerously transmitted mutawaatir Sunnah of the Prophet  ﷺ and his companions, taking up to four wives without such conditions. But nonetheless, it is this ayah that sets the limit at four, even though the wording alone suggests a very limited context.

And from that angle, yes, even I agree, the case of those scholars suggesting that our phrase in question is general overreaching is strong. And it is mainstream, and the Prophet ﷺ did say many times to follow the mainstream Muslims (السواد الأعظم), but that should not prevent those learned in faith from proposing other qualified opinions, even if they are of a small minority, if that is what Allah has guided them to after sincere prayer and research. After all, Abu Bakr was only one person who saw that fighting the deniers of zakat was justified, but by his strong argument, he persuaded the entire Ummah.

 

Revisiting Zainab and Abu al-`As

Before continuing, we are going to return to the story of Zainab and Abu al-`As. What happened after Badr? When did he accept Islam and return to his wife? And upon what conditions?

The historians differed.

Al-Dhahabi (d. 748 / 1348) said, “He accepted Islam before Ḥudaibiyah by five months” (Siyar, 1/331). Ibn Ḥazm also chose this. It seems they favored the shorter narrations, claiming that Abu al-`As went to Medinah in secret, and Zaynab gave him protection, which the Prophet ﷺ acknowledged, and famously said, “Pact of security for those seeking protection is acknowledged by all the Muslims even if it is offered by the lowest of them.” [يجير على المسلين أدناهم] The Prophet ﷺ is then reported to have said to Zaynab, “My daughter, make his abode hospital, but he should not be alone with you since you are not halal for him.” Al-Baihaqi relied on the longer versions of this story, combining them with the narrations saying that Abu Baṣīr took possession of Abu al-`As’s caravan, but did not kill him out of respect, while the latter then fled to Medinah to plea with the Prophet ﷺ to ask them to return his goods. Al-Baihaqi then said:

نَزَلَتْ آيَةُ تَحْرِيمِ الْمُسْلِمَاتِ عَلَى الْمُشْرِكِينَ بَعْدَ صُلْحِ الْحُدَيْبِيَةِ، ثُمَّ بَعْدَ نُزُولِهَا تَوَقَّفَ نِكَاحُهَا عَلَى انْقِضَاءِ عِدَّتِهَا، فَلَمْ تَلْبَثْ إِلا يَسِيرًا حَتَّى أَخَذَ أَبُو بَصِيرٍ وَغَيْرُهُ أَبَا الْعَاصِ أَسِيرًا وَبَعَثَ بِهِ إِلَى الْمَدِينَةِ، فَأَجَارَتْهُ زَيْنَبُ رَضِيَ اللَّهُ عَنْهَا، ثُمَّ رَجَعَ إِلَى مَكَّةَ وَرَدَّ مَا كَانَ عِنْدَهُ مِنَ الْوَدَائِعِ وَأَظْهَرَ إِسْلامَهُ فَلَمْ يَكُنْ بَيْنَ تَوَقُّفِ نِكَاحِهَا عَلَى انْقِضَاءِ الْعِدَّةِ وَبَيْنَ إِسْلامِهِ إِلا الْيَسِير

“The verse forbidding Muslim women to polytheist men was revealed ^[2]al-Baihaqi apparently also agrees that the verse from al-Baqarah allowed continuance of former contracts. after the Treaty of Hudaibiyah. Then after the verse’s revelation, her marriage was hanging on her waiting period, and then little time passed before Abu Basir and others took Abu al-`As prisoner and sent him to Medinah. Zainab then gave him sanctuary, and then he returned to Mecca and gave back whatever he still had in keeping of deposits [that Quraish trusted him with] and announced his Islam. So only a short span went by between the beginning of her marriage’s suspension and between his Islam.” (al-Kubra, no. 13024, 7/187)

While the story of Abu Baṣīr is vivid, it’s not free from critique. Other more authentic narrations do not give us a clearer picture either, some mentioning two years, others three, four, six or even eight years. Some narrators say this was the time between Zainab’s Islam and her husband’s Islam. Ibn Ḥajr pointed out that this was incorrect, since she accepted Islam when her father first proclaimed the message, but what is meant is between her hijrah and his Islam, i.e. the length of time they did not live together as a couple. Ibn Ḥajr reconciled the narrations that mentioned only a couple years as meaning, between the revelation of the ayah of al-Mumtaḥinah and his entering Islam ^[3]see Fath, 9/423, commentary of al-Bukhari’s: Bab idha aslamat al-mushrikat aw al-nasraniyah tahta al-dhimmi aw al-harbi. And if that were the case, then the majority would have to say that she either had a 2-year waiting period or the marriage contract was renewed.

In any case, since determining when Abu al-`As accepted Islam with any strong evidence is nearly impossible, even the story of him and Zainab poses multiple problems when using it to make rulings on this issue, especially rulings which could literally destroy families. If it affected how we make ablution, or worship Allah in secret without affecting others, that would be one matter. Yet when issuing rulings that have huge long term impact on our lives and happiness, we may only admit tested and tried evidence, just as is often said, “use any doubts to avoid enforcing the hudūd,” from ibn al-Abbaas and Ali.

As for the terms of their reunion. Ibn al-`Abbaas, a historian among the ṣaḥābah who diligently tracked down his elders’ events to better understand the fiqh behind them, is the only companion who reported this matter. However, his narrations, from a few different chains, are conflicting. They all agree that he said, “The Prophet ﷺ returned Zainab to Abu al-`As” and then they differ. Some say, “with a new contract” but others say “with the original first marriage.” Scholars of hadeeth, like Ahmad ibn Hanbal among others considered the narration claiming there was a new marriage to be baseless (ibn Qudāmah, 7/155). However, they admit that the jurists have acted upon nonetheless, out of iḥtiyāṭ or to be cautious on the safe side and almost unanimously oblige a renewed contract. Ibn Taymiyyah and ibnul-Qayyim on the other hand stuck with the authentic narrations, and some opinions that they attributed to the Salaf, which we’ll come to insha’Allah.

 

Other Examples from the Prophet’s Life

After Mecca was liberated in Ramadan of the 8^th year after hijrah, people entered into Islam by crowds, none holding back except the obstinate and fearful of Muslim retribution. Ibn Qudāmah mentions some of what happened (al-Mughni, 7/153, 154):

رَوَى مَالِكٌ فِي مُوَطَّئِهِ، عَنْ ابْنِ شِهَابٍ قَالَ: كَانَ بَيْنَ إسْلَامِ صَفْوَانِ بْنِ أُمَيَّةَ وَامْرَأَتِهِ بِنْتِ الْوَلِيدِ بْنِ الْمُغِيرَةِ نَحْوٌ مِنْ شَهْرٍ. أَسْلَمَتْ يَوْمَ الْفَتْحِ، وَبَقِيَ صَفْوَانُ حَتَّى شَهِدَ حُنَيْنًا وَالطَّائِفَ وَهُوَ كَافِرٌ. ثُمَّ أَسْلَمَ. فَلَمْ يُفَرِّقْ النَّبِيُّ ﷺ بَيْنَهُمَا، وَاسْتَقَرَّتْ عِنْدَهُ امْرَأَتُهُ بِذَلِكَ النِّكَاحِ … وَقَالَ ابْن شِهَابٍ: أَسْلَمَتْ أُمُّ حَكِيمٍ يَوْمَ الْفَتْحِ، وَهَرَبَ زَوْجُهَا عِكْرِمَةُ حَتَّى أَتَى الْيَمَنَ. فَارْتَحَلَتْ حَتَّى قَدِمَتْ عَلَيْهِ الْيُمْنَ، فَدَعَتْهُ إلَى الْإِسْلَامِ، فَأَسْلَمَ. وَقَدِمَ فَبَايَعَ النَّبِيَّ ﷺ فَثَبَتَا عَلَى نِكَاحِهِمَا

“Malik narrated in his Muwatta’ from ibn Shihab who said: between the Islam of Safwan ibn Umayyah and his wife bint al-Waleed ibn al-Mugheerah was about a month. She accepted Islam the day of liberation, but Safwan remained as he was until he witnessed [the battles of] Hunain and al-Ta’if while he was a disbeliever, and then he accepted Islam. So the Prophet ﷺ hadn’t separated them, and so his wife remained with him from their original marriage contract. … Ibn Shihab said: Umm Hakeem also embraced Islam the day of liberation, and her husband `Ikrimah [ibn Abi Jahl] fled until he reached Yemen. She then left until she met up with him in Yemen, called him to Islam, and then he accepted, and then they came together to the Prophet ﷺ, offered allegiance and remained upon their original marriage.”

We note that ibn Shihāb did not mention the `iddah in connection with this issue, nor any narrations before him, which is what led ibn Ḥazm to consider it irrelevant claiming the other jurists pulled it out of a magician’s hat. Other scholars extracted the `iddah simply from the short time span between the Islam of those women and their husbands. As if to say, if the husband does not accept Islam before her waiting period ends—which began by her declaration of faith—then an unreturnable divorce has taken place, until he accepts Islam and wants to marry again. However, there are multiple narrations concerning these events giving conflicting time spans for each, but the strongest ones mention a month.

As for al-`Abbaas ibn `Abdil-Muttalib, there are contradictory narrations on when he accepted Islam. Some of them, like historical stories with not much of a chain to stand on, mention that he accepted Islam around the time of the hijrah, and stayed in Mecca to spy on Quraish and provide some help to the weak Muslims there while concealing his Islam.

Authentic narrations show him openly declaring his Islam the day of liberation, year 8, right before Abu Sufyan. One of the stronger evidences for a delayed acceptance of Islam is the statement of his son `Abdullah <sup>[4]</sup>See: Tafsir ibn Katheer, 2/390, he said `Abd al-Razzāq recorded it:

كُنْتُ أَنَا وَأُمِّي مِنَ الْمُسْتَضْعَفِينَ مِنَ النِّسَاءِ وَالْوَلَدَانِ.

“I and my mother were among the weakened women and children [unable to emigrate].”

Ibn al-`Abbaas did not mention anyone else of his family, and so he either made that statement because his father had not accepted Islam, or because his father did accept Islam, but would not leave with the family from Mecca.

In spite of all this, the contradictory and confusing historical narrations, most medieval jurists loosely cited them, using them as added support (not primary support mind you) to further justify their positions.

Also, in the 8^th year of hijrah, Zainab bint Muhammad, the wife of Abu al-`As and mother of Umāmah, passed away, may Allah be pleased with her, according to most historians. And regarding this story, ibn Qudāmah quotes ibn Abdil-Barr who was attempting to justify the tremendously long `iddah that Zainab may have possibly observed before her husband accepted Islam. This would be if we agree with ibn Ḥajr that Abu al-`As accepted Islam a year or even more after the ayah al-Mumtaḥinah was revealed and around the time Mecca was liberated. Ibn Abdil-Barr said: “[His Islam] was either before the revelation forbidding Muslim women for disbeliever, and thus abrogated by what came after; or [afterwards, and] she was pregnant, and the pregnancy continued until her husband accepted Islam; or she was sick so that she did not menstruate three times before her husband entered Islam; or she was returned to him on a new contract.” (al-Mughni, 7/155) Thus have a majority of mainstream jurists attempted to justify the claim that once the woman’s `iddah has finished after she accepted Islam [and fled from home] then there is no recourse for the husband after accepting Islam except to request a new marriage.

 

One other important incident from the Sunnah that took place during the Prophet’s life that is directly relevant is what ibn al-`Abbaas related:

أَسْلَمَتِ امْرَأَةٌ عَلَى عَهْدِ رَسُولِ اللَّهِ ﷺ ، فَتَزَوَّجَتْ ، فَجَاءَ زَوْجُهَا إِلَى رَسُولِ اللَّهِ ﷺ، فَقَالَ: إِنِّي قَدْ أَسْلَمْتُ مَعَهَا ، وَعَلِمَتْ بِإِسْلامِي مَعَهَا ، فَنَزَعَهَا رَسُولُ اللَّهِ ﷺ مِنْ زَوْجِهَا الآخَرَ ، وَرَدَّهَا إِلَى زَوْجِهَا الأَوَّلِ.

“A woman accepted Islam during the time of the Prophet ﷺ, then she married, but then her husband came to the Prophet ﷺ and said, ‘I accepted Islam [with her], and she knew about my Islam [with her]’ so the Prophet ﷺ took her from her second husband and returned her to her original husband.” [recorded by Abu Dawud, Ahmad, and al-Hakim]

Most narrations of the above hadeeth do not come with the phrase “with her”. This narration is perhaps the strongest evidence that ibn Ḥazm and ibnul-Qayyim have to bolster their separate opinions, because the Prophet ﷺ did not ask if the `iddah was completed or not. It also suggests that the woman seems to have used Islam as an excuse to leave her first husband, and while she fled with her deen, she had additional motives, and that’s why the Prophet ﷺ did not consider her new marriage valid or need to ask about the `iddah.

All in all, not a single one of the examples suffices to negate that hijrah, or fleeing with one’s faith, is a perfectly valid `illah for deeming the marriage nullified or on hold indefinitely. Even the case of Zainab, the Prophet ﷺ forced her to leave the home of her husband and make the trek to Medinah and be with the Muslims. Not a single example exists demonstrating the Prophet ﷺ taking a woman out of the home of her husband when she accepted Islam. But rather, only if she voluntarily left that home, and then joined the Muslim community to benefit from their community welfare, then she would not be returned.

And Allah Knows best.

 

The Final Revelation

Fast forward to Dhul-Hijjah of the 10^th year after the Prophet’s hijrah, while the Prophet made his farewell pilgrimage.

Among the verses that were revealed during that momentous occasion was the final ayah concerning religious compatibility in marriage, the 5^th ayah of al-Mā’idah, which allowed Muslim men to marry chaste Christian and Jewish women. This came as a concession for the Muslim Ummah after al-Baqarah seemed to forbid initiating such contracts, while al-Mumtaḥinah forbade their continuation, much less inception. Scholars have disagreed as to the `illah for the concession, and callers to Islam give varying explanations as to why, for example, Muslim women cannot initiate a marriage contract with a disbelieving man, even the Christians and Jews among them. But we’ll touch on that insha’Allah when comparing Islamic and Western perspectives of marriage.