This is a Madinan sūrah except for one āyah which was revealed in Makkah in the year of the Conquest about ‘Uthmān ibn Ṭalḥah al-Ḥajabī: ‘Allah commands you to return to their owners the things you hold on trust.’ (4:58). An-Naqqāsh said that it was said that it was revealed during the Prophet’s hijrah from Makkah to Madīnah. Some people say that since Allah says, ‘O mankind’ it means that it was revealed in Makkah. ‘Alqamah and others said that, and so it seems that the beginning is Makkan and what is revealed after the Hijrah is Madinan. An-Naḥḥās said that it is all Makkan.

The first position is sounder because we find in Ṣaḥīḥ Bukhārī that ‘Ā’ishah said, ‘Sūrat an-Nisā’ was only revealed while I was with the Messenger of Allah ﷺ,’ meaning married to him. There is no disagreement that Prophet ﷺ married ‘Ā’ishah in Madīnah. Whoever examines its rulings will realise that there is no doubt that it is Madinan. As for the expression ‘O mankind’ making it Makkan, this is not sound. Al-Baqarah is Madinan, but ‘O mankind’ occurs twice in it. Allah knows best.

1 O mankind, have taqwā of your Lord who created you from a single self and created its mate from it and then disseminated many men and women from the two of them. Have taqwā of Allah in whose name you make demands on one another and also in respect of your families. Allah watches over you continually.

O mankind, have taqwā of your Lord who created you

We already discussed the derivation of the terms ‘mankind’, ‘taqwā’, ‘Lord’, ‘creation’, ‘mate’ and ‘dissemination’ in al-Baqarah. The āyah calls attention to the Creator.

The adjective ‘single’ (wāḥidah) is in the feminine, because the word nafs is feminine, even if it denotes the masculine. Linguistically, one could use the masculine since Ādam is meant, as Mujāhid and Qatādah said, and that is found in the reading of Ibn Abī ‘Ablah which has ‘wāḥid’. The verb ‘baththa’ (disseminate) means to separate and spread out over the earth, as we see in ‘spread-out rugs’ (88:16). ‘The two of them’ are Ādam and Ḥawwā’. Mujāhid said that Ḥawwā’ was created from the rib of Ādam, as in the hadith, ‘Woman was created from a crooked rib’ as we mentioned in al-Baqarah.

and then disseminated many men and women from the two of them.

Their descendants are of two categories. This means that the hermaphrodite is not a separate category, but has an actuality that refers to both categories. Such a person is a human being and must be connected to one sex or another as was already mentioned in al-Baqarah.

Have taqwā of Allah in whose name you make demands on one another and also in respect of your families

The repetition of ‘have taqwa’ is for stress and notification to the selves of those who are commanded. The word ‘whose’ is in the accusative as an adjective and ‘families’ is added. The sentence means: ‘Fear Allah lest you disobey Him and fear cutting off kin.’

The people of Madīnah read this as ‘tassā’alūna’, assimilating the tā’ into the sīn while the Kufans read it ‘tasā’alūna’ because the meaning is known. Ibrāhīm an-Nakha‘ī, Qatādah, al-A‘mash and Ḥamzah read ‘al-arḥāmi’ in the genitive. Grammarians have discussed this. The leaders of the Basrans said that it is ungrammatical and it is not lawful to recite it like that. The Kufans said that it is ugly and do not add anything to this without mentioning the reason for it. An-Naḥḥās said, ‘as far as I know.’ Sībawayh said, ‘It is not added to something implied in the genitive because it is in the position of tanwīn which is not added to it.’

One group say that it is added to something indicated. They used to make demands in that way. A man would say, ‘I ask you by Allah and kinship.’ That is how it is explained by al-Ḥasan, an-Nakha‘ī and Mujāhid. It is a sound position with respect to the matter as will be explained.

Some people, including az-Zajjāj, said that it is weak. They said, ‘It is ugly to add the substantive noun to the pronoun in the genitive unless what is in the genitive is in the substantive form, as in Allah’s words: ‘We caused the earth to swallow both him and his house.’ (28:81) It is ugly to say, ‘I passed by him and Zayd(in).’ Az-Zajjāj said that al-Māzinī said that it is because the coupled word and its antecedent are equal partners and either of them can take the place of the other.’ As it is not permitted to say, ‘I passed by Zayd and you (ka),’ it is not permitted to say, ‘I passed by you (bika) and Zayd.’ Sībawayh said that he considers it ugly and only permitted in poetry. [POEMS]

In Kitāb at-tadhkirah al-mahdiyyah, al-Fārisī says that Abu-l-‘Abbās al-Mubbarad said, ‘If you pray behind an imam who recites “mā antum bi-musrikhiyy” (14:22) and this as “tasā’alūna bihi wa-l-arḥāmi”, take your sandals and leave.’

Az-Zajjāj said, ‘In addition to being weak and ugly in Arabic, the reading of Ḥamzah is an serious error in respect of the principles of the dīn because the Prophet ﷺ said, “Do not swear by your fathers.” If it is not permitted to swear by other than Allah, how can it be permitted to swear by kinship? I also saw that Ismā‘īl ibn Isḥāq believed that swearing by other than Allah is something terrible and that one should only swear by Allah.’

An-Naḥḥās said, ‘Some of them say that “al-arḥāmi” as an oath is an error both in grammar and meaning because the hadith from the Prophet ﷺ indicates that it should be in the accusative (al-arḥāma), and it is related that Jarīr said, “We were with the Prophet ﷺ when some people of Muḍar came who were naked and barefoot. I saw the expression on the face of the Messenger of Allah ﷺ change because of what he saw of their dire poverty. Then he prayed Ẓuhr and addressed the people and quoted this āyah.” Then he said, “One man gave a dinar in ṣadaqah, another a dirham and yet another a ṣā‘ of dates.”’ So the reason that it is in the accusative is because it is encouraging maintaining ties of kinship. It is also sound that the Prophet ﷺ said, ‘Whoever swears should swear by Allah or be silent.’ This refutes the one who says: ‘I ask you by Allah and my kin.’ Abū Isḥāq said that it means ‘by which you demand your rights.’ There is also no sense to the genitive here. This is what I know about the position of language scholars who forbid reciting it as ‘al-arḥāmi’ in the genitive. Ibn ‘Aṭiyyah preferred that.

Imām Abū Naṣr ‘Abd ar-Raḥīm ibn ‘Abd al-Karīm al-Qushayrī rejected that, saying, ‘Such words are rejected by the imams of the dīn because the readings of the imams of recitation are confirmed from the Prophet ﷺ by multiple transmissions which are known. Whoever rejects that, rejects the Prophet ﷺ and finds the recitation ugly. This is a position which one should be aware of and wary about. One should not follow the imams of language and grammar in it. Arabic is learned from the Prophet ﷺ and no one doubts his eloquence.’

As for what is mentioned about the hadith, it is debatable because the Prophet ﷺ said to Abu-l-‘Usharā’, “By your father, stabbing it in the thigh is sufficient.” It is prohibited to swear an oath by other than Allah. This is entreating someone by the right of kinship, and it is not forbidden.’

Al-Qushayrī said, ‘It is said that this is an adjuration by kinship, meaning “Have taqwā of Allah and the right of kinship.” It is like when you say, “Do that, by your father’s right.” Revelation has, “By the star,” ‘By the Mount,” “By the fig” and so forth. This is unnatural.’ In fact, this is not unnatural, because it is not unlikely that ‘al-arḥām’ is like this. Swearing by that is as Allah swears by that which He has created and which indicates His oneness and power for stress. Allah knows best. Allah can swear by whatever He wishes, forbid whatever He wishes and allow whatever He wishes. So this can be an oath, as the Arabs swear by kinship. It is sound that the bā’ is meant and elided as we see in poems [POEMS]

‘Abdullāh ibn Yazīd recited ‘al-arḥāmu’ in the nominative as the inceptive and the predicate is implied. It implies: ‘And relatives are family with whom ties are maintained.’ It is also possible that it is instigation because the Arabs put that in the nominative. [POEM] It is also said that it is in the accusative added to ‘bihi’ because its position is accusative. [POEM] They used to say, ‘I ask you by Allah and by kinship.’ What is most apparent is that it is in the accusative by an implied verb as we already mentioned.

The religion agrees that it is mandatory to maintain ties of kinship and that it is forbidden to cut them off. It is confirmed that when Asmā’ asked the Prophet ﷺ, ‘Shall I give to my mother?’ he replied, ‘Yes, give to your mother,’ and he commanded her to maintain her tie of kinship although her mother was an unbeliever. So it includes within the favour even giving to an unbeliever. This is such that Abū Ḥanīfah and his people said that relatives inherit from one another if there are no paternal kin (‘aṣabah) or prescribed shares.

One should buy and free relatives who are slaves. That is supported by what Abū Dāwud related that the Prophet ﷺ said: ‘If someone comes into possession of a maḥram relative, then he is free.’ That is the position of most of the people of knowledge, and is related from ‘Umar ibn al-Khaṭṭāb and ‘Abdullāh ibn Mas‘ūd and it is not known that any of the Companions objected to it. It is the position of al-Ḥasan al-Baṣrī, Jābir ibn Zayd, ‘Aṭā’, ash-Sha‘bī and az-Zuhrī. That is the view taken by ath-Thawrī, Aḥmad and Isḥāq. Our scholars have three positions. One is that it is specific to fathers and grandfathers. The second that it applies to both sides, meaning siblings, and the third is like what Abū Ḥanīfah says about it applying to any relatives. Ash-Shāfi‘ī said that someone is only obliged to free children and parents, but not siblings or any other relatives.

The sound position is the first one based on the hadith which we mentioned and which was transmitted by at-Tirmidhī and an-Nasā’ī. The best of its paths is that which is in an-Nasā’ī which he related from Ḍamrah from Sufyān from ‘Abdullāh ibn Dīnār from Ibn ‘Umar that the Messenger of Allah ﷺ said, ‘If someone comes into possession of a maḥram relative, he must free him.’ This is a firm hadith transmitted from one reputable transmitter to another and there is no criticism of it by any of the imams for any reason which would demand that it be abandoned, other than the fact that an-Nasā’ī said at the end of it that it is a munkar hadith. Others said that he alone has Ḍamrah and this is the meaning of munkar and shādhdh in the terminology of hadith scholars. Ḍamrah is reputable and trustworthy. When someone trustworthy is the only one with a hadith, that does not impair it. Allah knows best. They disagree about whether this applies to milk relatives. Most say that it does not and the hadith does not demand that. Qāḍī Sharīk said that he must emancipate them.

The literalists and some mutakallimūn believe that a son is not forced to free his father if he owns him. Their argument is based on the hadith in which the Prophet ﷺ said, ‘A child cannot repay his parent unless he finds him a slave and buys him and sets him free.’ They said that if it is valid to buy him, ownership is confirmed and an owner has free disposal of his property.

This is ignorance of the goals (maqāṣid) of the Sharī‘ah on their part. Allah Almighty says: ‘you should show kindness to your parents.’ (17:23) So He connects worship of Him to kindness to parents in respect of obligation. It is not part of kindness for a son to allow his parent to remain his property and to be subject to his authority. Therefore he is obliged to free him either because of his ownership and acting by the hadith, or for the sake of being kind to him, acting by the āyah. According to the majority, the hadith applies when the son has the means to free his father by buying him and the Sharī‘ah applies emancipation to him as coming from him.

The disagreement of scholars is about who is set free when he or she is owned. The reason for the first position is what we mentioned from the Book and the Sunnah. The reason for the second view is the connection of close kinship to the father which is mentioned in the hadith, not the closeness of a man to his son so that it is applied to the father. A brother is close to him in that respect because of the connection by paternity. He says, ‘I am your father’s son.’ The reason for third view is connected to the hadith of Ḍamrah. Allah knows best.

Al-arḥām: raḥm is the name for all relatives without difference between maḥram or non-maḥram. Abū Ḥanīfah thinks that the maḥram relationship prevents taking a gift back, while it is permitted to take it back in the case of cousins even if severance exists when there is kinship. That is why inheritance, guardianship and other rulings are connected to it. The quality of being maḥram is additional to the text of the Book, and is not relied on. They also think that it is abrogated, especially when it indicates the cause of severance. It is allowed in respect of cousins. Allah knows best.

Allah watches over you continually.

He is Watcher, meaning Guardian, according to Ibn ‘Abbās and Mujāhid. Ibn Zayd says a Knower. It is said that Raqīb means Guardian, and it is one of the attributes of Allah Almighty. Ar-Raqīb is the One who guards and watches. The verb is raqaba. Marqab is a high place which overlooks the area where the Watcher is. Raqīb is also the third share of the seven parts, and it is said that it is a type of snake. So it is a word with different meanings, and Allah knows best.

2 Give orphans their property, and do not substitute bad things for good. Do not assimilate their property into your own. Doing that is a serious crime.

Give orphans their property,

‘Orphans’ means those who were orphans. It is like Allah’s words: ‘The magicians threw themselves down in prostration’ (7:120) when there was no longer any magic in them when they prostrated. Similarly, although an adult is not actually considered ‘an orphan’, the Prophet ﷺ was nevertheless called ‘the orphan of Abū Ṭālib’ based on what had previously been the case. The verb ‘ātū’ means ‘give’ and ‘ītā’’ is giving. ‘Atw’ is a gift. Abū Zayd said that a bribe is a gift (itāwah). The word ‘orphan’ only applies to someone who has not yet reached maturity as mentioned in al-Baqarah.

This āyah is addressed to guardians and executors. According to Muqātil and al-Kalbī it was revealed about a man of Ghaṭafān who had a lot of property belonging to a nephew who was an orphan. When the orphan came of age, he asked for his property and the uncle refused to hand it over, and this was revealed. The uncle said, ‘We seek refuge with Allah from serious crime!’ and he returned the property. The Prophet ﷺ said, ‘Whoever is protected from the avarice of his nafs and returns it, will alight in his house,’ referring to the Garden. When the lad took the money, he spent it in the Way of Allah, and the Prophet ﷺ said, ‘The wage is confirmed and the burden remains.’ He was asked, ‘How is that, the Messenger of Allah?’ He said, ‘The wage is established for the lad and the sin remains for his father,’ because he was an idolater.

There are two aspects to giving orphans their property. One is that their guardian gives them their food and clothing as long he is in that position, since that is not possible for someone who does not have full control, such as a child or an adult fool. The second is to give them money when they are capable. That is when they are tested and sensible. So the term ‘orphan’ is metaphorical since it no longer applies to someone like that. It means the one who was an orphan. It is continuing to keep the name as in the words: ‘The magicians fell down in prostration’ (26:46), which means those who had been magicians, and just as the Prophet ﷺ was called ‘the orphan of Abū Ṭālib’. When a guardian realises that his charges are properly responsible, it is forbidden for him to withhold their money. Abū Ḥanīfah said, ‘When someone is twenty-five, they are given their money in any case.’

Allah did not mention in this āyah about being aware of sensibleness (rushd). He mentioned it later: ‘Keep a close check on orphans until they reach a marriageable age, then if you perceive that they have sound judgment, hand over their property to them.’ (4:6) Abū Bakr ar-Rāzī al-Ḥanafī says in Aḥkām al-Qur’an: ‘Since good judgment is not made a condition in one place, while it is in another, it should not be applied to both situations. So when someone is twenty-five and is a fool, and good sense is not discerned in him, his money must still be given to him. If he is younger than that, then it is not mandatory, based on the two āyahs.’ Abū Ḥanīfah said, ‘It is possible that someone can be a grandfather before they reach sound judgment. If they can be a grandfather, how is it sound to give them money on account of being an orphan and in the name of an orphan? Is that not extremely unlikely?’

Ibn ‘Arabī refuted this as being baseless, especially on the basis that he sees that such payments cannot be confirmed by analogy. They must be derived from texts and no texts exist regarding this matter. What the scholars say about being debarred will be discussed later, Allah willing.

Do not substitute bad things for good.

So do not exchange a fat sheep of the orphan’s property for a thin one, nor a good dirham for an adulterated one. In the Jāhiliyyah, due to lack of dīn, people did not refrain from consuming the property of orphans. They would take what was good from the property of orphans and replace it with bad property of their own and say, ‘A name for a name and capital for capital.’ Allah forbade that. This is the position of Sa‘īd ibn al-Musayyab, az-Zuhrī, as-Suddī, and aḍ-Ḍaḥḥāk. It is the literal meaning of the āyah.

It is said that the meaning is: ‘Do not consume the property of orphans which is unlawful for you and therefore bad, claiming that it is good and your own property.’ Mujāhid, Abū Ṣāliḥ and Bādhān said, ‘Do not hasten to consume any bad things in their property and claim it is good and lawful provision.’

Ibn Zayd that in the Jāhiliyyah they did not allow women and children to inherit. The eldest would take the legacy. ‘Aṭā’ said, ‘Do not take profit from an orphan in your care when he is young and naïve.’ These two positions are outside the apparent meaning of the āyah. The verb tabaddala is to exchange one thing for another in its place. The grammatical term appositive (badal) comes from this verb.

Do not assimilate their property into your own.

Mujāhid said, ‘This āyah forbids mixing property when spending. The Arabs used to mix their expenses with those of orphans and then were forbidden to do that. Then it was abrogated by the āyah in al-Baqarah: ‘If you mix your property with theirs, they are your brothers.’ (2:220) Ibn Fūrak said that al-Ḥasan said, ‘People interpret this āyah as being a prohibition against mixing property, and so they avoided it and then the āyah in al-Baqarah made things easier for them.’

A group of later scholars said that ‘ilā’ means ‘with’. It is like His words, ‘be helpers of (ilā) Allah’. (61:14). [POEM] Others say that it has its normal meaning of ‘to’ which conveys ascription, implying, ‘Do not add their property to yours in consumption.’ So they were forbidden to think of the property of orphans as being like their own property over whose use and consumption they had full control.

Doing that is a serious crime.

The word ‘that’ refers to assimilating property. Consuming the property of orphans is great wrong action, according to Ibn ‘Abbās, al-Ḥasan and others. ‘Crime’ (ḥūb) is derived from the verb hāba, meaning to commit a wrong action. The root of the verb comes from chiding a camel. A sin is called ḥūb because a person is chided about it and encouraged to refrain from it. One says in supplication, ‘O Allah, forgive my sin (ḥūb)!’

Ḥūbah is also a need as we see in the supplication, ‘I present my need (ḥūbah) to You!’ Ḥūb is alienation, as we see from the words of the Prophet ﷺ, ‘Umm Ya‘qūb’s divorce is on account of alienation.’ There are a couple of dialectal forms: ḥūb, which is the common reading and the dialect of Hijaz; ḥawb, as decided by al-Ḥasan which al-Akhfash says is the dialect of Tamīm and Muqātil says is the dialect of Abyssinia. Ḥūb is a verbal noun as is ḥiyābah. Ubayy ibn Ka‘b recited ‘ḥāb’ as a verbal noun. Ḥaw’ab is a wide place and also means water. One says, ‘Alḥaqa-llāhu bihi-l-ḥawbah’ (May Allah bring poverty on him). Ḥībah is a state. The origin of the yā’ is wāw. Form V of the verb, taḥawwaba, means to worship and remove ḥūb from oneself. The verb also means expressing sorrow and crying out loudly, as when chiding. Taḥawwaba is also to cry out from pain. Ṭufayl said:

Taste as we tasted a morning burned by rage in our livers and grief (taḥawwab).’

3 If you are afraid of not behaving justly towards orphans, then marry other permissible women, two, three or four. But if you are afraid of not treating them equally, then only one, or those you own as slaves. That makes it more likely that you will not be unfair.

If you are afraid of not behaving justly towards orphans,

If you are afraid that you will not be fair in respect of their dowries and in spending on them, then marry other women. The Imāms agree that ‘Urwah ibn az-Zubayr reported that ‘Ā’ishah said about this āyah, ‘Nephew, this refers to an orphan girl who is in the care of her guardian and is his partner in his property; he likes both her property and her beauty and so he wants to marry her without being fair with respect to her bride-price, not giving her the like of what someone else would give her. They were forbidden to marry them unless they were fair to them and gave them the highest customary bride-price. They were commanded to marry women other than them who were lawful to them.’

Ibn Khuwayzimandād said, ‘This is why it is permitted for an executor to buy and sell using the property of the orphan as long as it does not entail gifts. A person can examine what his guardian buys or sells for him, and the ruler can oversee that. No one can oversee a father as long as there is not gift giving in which case, that should be overseen by the ruler.’ This was discussed in al-Baqarah.

Aḍ-Ḍaḥḥāk, al-Ḥasan and others say that the āyah abrogates what existed in the Jāhiliyyah and the beginning of Islam, when a man would marry however many free women he wished. This āyah restricts him to four. Ibn ‘Abbās, Ibn Jubayr and others said that it means: if you fear you will not be fair to orphans, then also fear about women, because they used to refrain from injustice to orphans, but not women.

Khawf (fear) is one of the words that can have opposite meanings. ‘Be afraid’ can mean ‘feel certain’ or ‘think it probable’. For that reason scholars disagree about the meaning of ‘fear’ in this context. Abū ‘Ubaydah said that it means if you are certain. Others say that it means you think it probable, and Ibn ‘Aṭiyyah said that this is what skilled scholars prefer, and so it has the normal meaning of thinking probable rather than of being certain. So it means if someone thinks it probable he will not be fair to the orphan girl, he should turn away from marrying her.

The verb aqsaṭa means ‘to be fair’. Qasaṭa means to act unjustly and wrong someone. The Almighty says: ‘The unjust (qāsiṭūn) will be fuel for the Fire.’ (72:15) The Prophet ﷺ said, ‘Those who are just (muqsiṭūn) in the dīn will be on minbars of light on the Day of Rising.’ Ibn Waththāb and an-Nakha‘ī recited ‘taqsiṭū’ from qasaṭa with the implied additional ‘lā’. It is as if Allah were saying, ‘If you do, you will be unfair.’

then marry other permissible women, two, three or four.

How can mā be used for human beings when it is normally used for non-sentient things? There are five answers to this objection. One is that man and mā are interchangeable as we see in other āyahs like 91:5 and 24:45. Here it is used for women, who are sentient beings. Ibn Abī ‘Ablah recited ‘man’. The second is the view of the Basrans that mā can be used in an adjectival way for anything. So it means to marry lawful women. What Allah forbade is not good (ṭayyib). The third is the idea that mā here is adverbial, meaning ‘as long as you think it good to marry.’ Ibn ‘Aṭiyyah says that this is weak. The fourth is al-Farrā’s view that it is used as a verbal noun, but an-Naḥḥās said, ‘This is very unlikely indeed. It is not sound. Marry a good woman.’ Al-Jawharī said, ‘The verb for to be good is ṭāba, yaṭību, ṭaybah, taṭyāb. The fifth is that what is meant here is the contract, i.e. ‘marry in a wholesome manner.’ The reading of Ibn Abī ‘Ablah rejects these three latter views.

Abū ‘Amr ibn al-‘Alā’ related that when the people of Makkah heard thunder, they would say, ‘Glory be to the One (mā) whom the clouds glorify!’ using mā. This is also seen in other similar expressions. All of those concerned with knowledge agree that Allah’s words: ‘If you are afraid of not behaving justly towards orphans’ does not convey the idea that someone who does not fear being unfair towards orphans should marry more than someone who is afraid of being unfair. It indicates that the āyah was revealed in response to those who feared that and that its ruling is more universal than that.

Abū Ḥanīfah connects this āyah to the permission to marry an orphan girl before she comes of age. He says that she is only an orphan before she comes of age since, once she was of age, she would be able to agree to a lowering of her dowry and is no longer called ‘orphan’. There is no consensus on this. Mālik, ash-Shāfi‘ī and the main body of scholars believe that marriage is not permitted until she comes of age and gives her consent, as Allah says: ‘They will ask you for a fatwā about women.’ (4:127). The word ‘women’ (nisā’) is used for adult women as ‘rijāl’ is used for adult men. Neither ‘man’ nor ‘woman’ is used of a child. ‘Women’ is used with ‘orphans’ in that āyah and means ‘orphans’ is in this āyah as ‘Ā’ishah said. Adult women orphans are included in the āyah. An adult orphan woman may only be married with her permission and a child may not be married because she cannot give her permission.

This is like what is related from by ad-Dāraquṭnī from Muḥammad ibn Isḥāq from Nāfi‘ that Ibn ‘Umar said, ‘My uncle, Qudāmah ibn Maz‘ūn, married me to his niece, the daughter of his brother, ‘Uthmān ibn Maz‘ūn. Al-Mughīrah ibn Shu‘bah went to her mother and desired her on account of her wealth and proposed to her. The case was presented to the Prophet ﷺ. Qudāmah said, “Messenger of Allah, she is my niece and I am her father’s executor and I have not short-changed her. I gave her in marriage to one whose excellence and kinship I know.” The Messenger of Allah ﷺ said to him, “She is an orphan, and an orphan is more entitled to dispose of her own affair.” She was removed from me and al-Mughīrah ibn Shu‘bah married her.’ Ad-Dāraquṭnī said, ‘Muḥammad ibn Isḥāq did not hear it from Nāfi‘, but heard it from ‘Umar ibn Ḥusayn from Nāfi‘.’

Ibn Abī Dhi’b related from ‘Umar ibn Ḥusayn from Nāfi‘ from ‘Abdullāh ibn ‘Umar that he married the daughter of his maternal uncle, ‘Uthmān ibn Maz‘ūn, and her mother went to the Messenger of Allah ﷺ and said, ‘My daughter dislikes that,’ and the Messenger of Allah ﷺ commanded that she be separated from him. He said, ‘Do not give an orphan in marriage until you ask for her consent. If she is silent, that constitutes her permission.’ After ‘Abdullāh she was married to al-Mughīrah ibn Shu‘bah.

This refutes the position of Abū Ḥanīfah that a girl does not require a walī when she reaches adulthood, based on his position that a walī is not a precondition for a valid marriage. This was already discussed in al-Baqarah. There is no sense in their claim that this hadith is based on her not being an adult since he said, ‘with her permission’ without mentioning her being an orphan. Allah knows best.

‘Ā’ishah’s explanation of this the āyah provides understanding of what Mālik said about appropriate dowries and his referring to it when the dowry is disordered and cheating occurs regarding its amount. The appropriate dowry must be known for every group of people according to their circumstances. Mālik said, ‘People have marriage customs which they know and recognise,’ referring to dowries and equivalence.

Mālik was asked about a man who gave his wealthy daughter in marriage to a poor cousin of his despite her mother’s objection. He said, ‘I do not think that she has any say regarding that. She can argue about it until it is evident that that is the view that the father has taken and then the mother’s objection is ignored.’ It is permitted for a girl who is not an orphan to be married with the minimum dowry for a woman of her class because the āyah is about orphans. This leads us to understand that it is different for those who are not orphans.

When an orphan girl comes of age and her guardian is fair in respect of her dowry, he can marry her as was explained by ‘Ā’ishah. Abū Ḥanīfah, al-Awzā‘ī, ath-Thawrī and Abū Thawr said that, and among the Tābi‘ūn, al-Ḥasan and Rabī‘a said it as did al-Layth. Zafar and ash-Shāfi‘ī said, ‘It is not permitted to marry her without the permission of the ruler or unless the marriage is authorised by another relative who is closer to her or has the same level of kinship. As for him being both the husband and the one who gives in marriage, that is not allowed. Evidence for this is found in the hadith of the Prophet ﷺ, “There is no marriage without a wālī and two just witnesses.” So there are necessarily a certain number of people: the one who marries, the one who gives in marriage and the witnesses. If someone combines two roles, then one of the number is lacking.’ A third view is that she entrusts her affair to a man to give her in marriage. This is related from al-Mughīrah ibn Shu‘bah. It is the position of Aḥmad, and Ibn al-Mundhir mentioned it.

‘Permissible women’ means those who are lawful for you, as al-Ḥasan, Ibn Jubayr and others said. It is sufficient in this respect to mention those whom one is permitted to marry because there are many categories of women who are forbidden. Ibn Abī Isḥāq, al-Jaḥdarī and Ḥamzah recited ‘ṭāba’ with imālaha. We find in the Qur’an of Ubayy ‘ṭība’ with yā’. This is evidence of imālah.

Using the word ‘women’ indicates that it is adult women who are meant. The root of nisā’ is niswah and niswah has no singular. The noun for one woman is ‘imra’ah’. ‘Two, three or four’ is an appositive for mā. It is indefinite and undeclined and so it is an equivalent in description as Abū ‘Alī said. Aṭ-Ṭabarī said that they are definite like a noun because the alif-lām is added. It is in the position of ‘Umar in being definite. Al-Kūfī said that. Az-Zajjāj said that this is an error.

It is said that it is not inflected because it diverts from the expression. Uḥād diverts from wāḥid wāḥid, mathnā from ithnayn ithnayn, thulāth from thalāthah, thalātah, rubā‘ from arba‘ah arba‘ah. There are two dialectical forms of each: fu‘āl and maf‘al. It is said: uḥād and mawḥad, thunā ̛ and mathnā, thulāth and mathlath, and rubā‘ and marba‘. That continues to ma‘shar and ‘ushār. Abū Isḥāq ath-Tha‘labī related a third dialectical possibility: uḥud, thunā, thuluth and ruba‘, like ‘Umar and Zufar. That is how an-Nakha‘ī recites it in this āyah. Al-Mahdawī related from an-Nakha‘ī and Ibn Waththāb ‘thulāth and ruba‘ without alif in ruba‘. It is shortened from rubā‘. [POEM] Ath-Tha‘labī said, ‘This form does not go beyond four except in a verse of al-Kumayt where he uses “‘ushār” for “ashrah.”’

Ibn ad-Dahhān said, ‘Some of them stop on what is heard, which is uḥād to rubā‘. The verse is not considered since it is aberrant. Abū ‘Amr ibn al-Ḥājib said, ‘It is said: uḥād and mawḥad, thunā ̛ and mathnā, thulāth and mathlath, and rubā‘ and marba‘. Is it said going up to nine or not? There is disagreement about that, and the soundest view is that it is not confirmed.’ Al-Bukhārī has a text about that in the Ṣaḥīḥ.

That diverts from its meaning. It is not used in a place where the numbers are used unless it is diverted. You say, ‘Two and three came to me’ as ‘ithnān and thalāthah’ and it is not permitted to say, ‘mathnā and thulāth’ unless it is preceded by a plural. Where that happens it is used as a ḥāl as here in the āyah. It is an adjective. These numbers being used adjectivally is clear in His words in 35:1 which describe wings. It is in the indefinite. [POEM+BIT MORE ON THIS]

Know that this does not indicate that nine is permissible as is said by someone with little grasp of the Book and the Sunnah. He turns away from the position of the early members of this Community. If someone says that the ‘wāw’ is used to add the numbers up and supports that by saying that the Prophet ﷺ had nine wives and was married to all of them, this amounts to ignorance. The Rāfiḍites and some of the literalists take this position and make mathnā the same as ‘two’ (ithnayn) and do the same with thulāth and rubā‘. Some of the literalists have an even more repugnant position and say that it is permitted to have eighteen, taking the view that the form gives repetition and the wāw addition. So mathnā is two-two, and the same with the rest of the numbers. This is all ignorance of the language and the Sunnah and is contrary to the consensus of the community since it is not heard that any of the Companions or Tābi‘ūn married more than four.

It is transmitted by Mālik in the Muwaṭṭā’ and by an-Nasā’ī and ad-Dāraquṭnī that the Prophet ﷺ said to Ghaylān ibn Umayyah ath-Thaqafī, when he became Muslim and had eleven wives, ‘Choose four of them and divorce the rest.’ Abū Dāwud reported that al-Ḥārith ibn Qays said, ‘I became Muslim and had eight wives. I mentioned that to the Prophet ﷺ and he said, “Choose four of them.”’ Muqātil said, ‘Al-Ḥārith ibn Qays had eight free wives. When this āyah was revealed, the Messenger of Allah ﷺ commanded him to divorce four and keep four.’ He is sometimes called Qays ibn al-Ḥārith, but what is correct is that he was al-Ḥārith ibn Qays al-Asadī as Abū Dāwud said. That is also how it is related by Muḥammad ibn al-Ḥasan in his as-Siyar al-Kabīr: it is Ḥārith ibn Qays. He is known by the fuqahā’. As for what the Prophet ﷺ was permitted in that regard, that was one of his special prerogatives and will be dealt with in Sūrat al-Aḥzāb.

We have already mentioned their statement that the wāw is combining and what was said about that. Allah Almighty addressed the Arabs with the most eloquent language. The Arabs would not abandon saying ‘nine’ for saying ‘two and three and four.’ So it is ugly for someone to say, ‘Give him four, six, eight’ rather than ‘eighteen’. The wāw in this place is an appositive which means: ‘marry three rather than two’ and ‘four rather than three’. That is why they are joined with wāw and not ‘aw’ (or). If He had said ‘aw’, it would be permitted for the one with two not to have three or the one with three not to have four.

As for their statement that mathnā demands ithnān, thulāth demands thalāthah and rabā‘ demands arba‘ah, this is arbitrary and scholars of language do not agree with them. It is ignorance on their part. Others are also ignorant of the fact that mathnā demands two-two, thulāth three-three, and rubā‘ four-four. They do not know that ithnayn-ithnayn, thalāth-thalāth, and arba‘ah-arba‘ah is confined to numbers, and mathnā, thulāth and rubā‘ are different. For Arabs, the diverted numbers have a further meaning that is not in the root. That is because when one says, ‘The horses came mathnā’ by that you mean two by two, in other words that they came in pairs. Al-Jawharī said, ‘The same is true of all diverted numbers.’

Someone else said that if you describe people coming mathnā, thulāth or uḥād or ‘ushār, it means they came to you, two by two, three by three, one by one or ten by ten. This meaning is not in the root because when you say that people came to me three (thalāthah) by three or ten (‘ashrah) by ten, you count the number of the people with your words, thalāthah and ‘ashrah. When you say rubā‘ and thunā’, you do not count their number. You mean that they came to you four by four or two by two. The numbers, large or small, make no difference in this context. So their confining each form to less than what it demands is arbitrary.

Muslim scholars disagree about someone who marries a fifth wife when already married to four. Mālik and ash-Shāfi‘ī said that the ḥadd is inflicted on him if he did it knowingly. That is the position of Abū Thawr. Az-Zuhrī said that he is stoned if he did that knowingly, but if he was ignorant of the prohibition, he receives the lesser ḥadd, which is flogging. The woman receives her dowry and they are divorced and may not ever re-marry. One group said that there is no ḥadd punishment in respect of any of that. That is the view of An-Nu‘mān.

Ya‘qūb and Muḥammad said that there is a ḥadd for a forbidden woman, but no other marriage: that is like when someone marries a Magian, marries five women in one contract, contracts a mut‘ah (temporary marriage), marries without witnesses, or marries a slave-girl without the permission of her owner. Abū Thawr said, ‘When he knows that that it is not lawful, he receives the ḥadd punishment for any of those things, except for a marriage without witnesses [and marrying a Magian].’

A third view is that of an-Nakha‘ī who said that if someone marries a fifth woman deliberately before the end of the ‘iddah of one of his four wives, he is given a hundred lashes, but not exiled. These are the fatwas of our scholars about marrying a fifth wife according to what Ibn al-Mundhir mentioned. The same holds true for more than that.

Az-Zubayr ibn Bakkār related from Ibrāhīm al-Ḥizāmī that Muḥammad ibn Ma‘n al-Ghifārī said, ‘A woman came to ‘Umar ibn al-Khaṭṭāb and said, “Amīr al-Mu’minīn, my husband fasts in the day and prays at night and I do not like to complain when he is obeying Allah.” He said to her, “Your husband is an excellent husband.” She kept repeating it and he gave the same reply. Ka‘b al-Asadī said to him, “Amīr al-Mu’minīn, this woman is complaining about her husband’s distancing her from his bed.” ‘Umar said, “As you have understood her words, decide between them.” Ka‘b said, “Bring your husband.” He was brought and told that his wife had complained about him. He asked, “Is it about food or drink?” “No,” he said. The woman said:

“O Qāḍī who is wisely guided, the mosque has diverted my friend from my bed.

His worship has made him ascetic regarding my bed. Therefore, Ka‘b, make a decision and do not hesitate.

He does not sleep day or night, so I do not praise him respecting women.”

Her husband said:

“I have been made ascetic in her bed and cavorting. I am a man who has been distracted by what has been revealed

in Sūrat an-Naḥl and the Seven Long Ones. The Book of Allah contains that which alarms and causes fear.”

Ka‘b said:

“O man, she has a right which you owe her. Her share is one fourth for the person who understands.

Give her that and abandon your defects.”

Then he said, “Allah Almighty has made two, three and four women lawful for you. So that would be three nights and days in which you can worship your Lord.” ‘Umar said, “By Allah, I do not know which of the things you did is more extraordinary! Is it your grasp of their situation or your ruling regarding them? Go – I have appointed you Qāḍī of Basra.”’

Abū Hudbah Ibrāhīm ibn Hudbah related that Anas ibn Mālik said, ‘A woman went to the Prophet ﷺ to ask for help with her husband. She said, “I do not have what women normally have. My husband fasts constantly.” He said, “You have a day and he has a day. One day for worship and one day for the wife.”’

But if you are afraid of not treating them equally, then only one,

Aḍ-Ḍaḥḥāk and others said that this refers to inclination, love, sexual intercourse, company and division between multiple wives. So more than one is forbidden if that will lead to loss of fairness in division and keeping company. That indicates the mandatory nature of good company, and Allah knows best.

It is recited as ‘wāḥidatun’ in the nominative which implies, ‘One is enough.’ It is also recited in the accusative which implies the verb: ‘marry one’.

or those you own as slaves.

This means slave-girls. It indicates that if a man fears that he will not be fair to one, then he should have slave-girls. This provides evidence that the right to sexual intercourse with the slave-girl is by virtue of ownership and is not part of marital division because the words of the āyah makes all ownership the same. That negates any right of a slave-girl to sexual intercourse or to a share in the division of time. Nonetheless, it is a duty for the owner to be a good owner and to be kind to slaves.

Allah ascribes ownership to the right hand (literally ‘what your right hands own’) for praise. The right hand is singled out for good qualities. Do you not see that it is the spending hand? It is as the Prophet ﷺ said, ‘until his left hand does not know what his right hand spends.’ It is the hand used for making contracts. The right hand receives the banners of glory as he says:

When a banner for glory is raised, the Arabs take it with the right hand.

That makes it more likely that you will not be unfair.

That is closer to not inclining away from the truth and being unfair, as Ibn ‘Abbās, Mujāhid and others said. The verb ‘āla is used of someone who is unfair and biased. They say that the arrow deviated (‘āla) from the target. Ibn ‘Umar said that it is used for being unfair in weight or measure. A poet said:

They said, ‘We have followed the Messenger of Allah.” Then they discard the Messenger’s words and are unfair (‘ālū) in the balance.

Abū Ṭālib said:

A true balance does not cheat a single grain. It itself bears witness that it is not unfair (‘ā’il).

The verb can also mean ‘to become poor’ as Allah says, ‘If you fear impoverishment (‘aylah).’ (9:27) A poet says:

A poor man does not know when he will become wealthy and the wealthy does not know when he will become indigent (ya‘īlu).

The singular for indigent is ‘ā’il and the plural is ‘aylah. ‘Aylah and ‘ālah mean poverty. The verb can also mean to impose a burden and to make something momentous.

Ash-Shāfi‘ī said that the āyah means: ‘it is more likely that you will not have a large number of dependants,’ which is another meaning of the verb, but ath-Tha‘labī says that no one else says this. The verb for that a‘āla (Form IV).

Ibn al-‘Arabī claims that there are only seven meanings for ‘āla and no more. It can mean: to incline towards, to increase, to be unjust, to become poor, to burden (as Ibn Darīd says), to undertake the burden of dependants, as the Prophet ﷺ says, ‘begin with dependants’, and to overpower, as one says, ‘‘īla ṣabrihi’, ‘his patience was overcome’. One uses the verb a‘āla to describe a man with many dependants. Using ‘āla to describe having many dependants is not sound.

As for the statement of ath-Tha‘labī that no one else says that, ad-Dāraquṭnī reported it in his Sunan from Zayd ibn Aslam. It is the position of Jābir ibn Zayd. These are two imams from among the Muslim scholars and imams who preceded ash-Shāfi‘ī. As for what Ibn al-‘Arabī mentioned about their number and lack of soundness, that itself is not sound. We mentioned that a matter can be ‘momentous’ (‘āla), and al-Jawharī related that. Al-Harawī said in Gharīb: ‘Abū Bakr said, ‘It is said that a man acts unjustly in the land.’ Al-Aḥmar said that the verb can mean that something renders a person powerless. Al-Kisā’ī, Abū ‘Umar ad-Dūrī and Ibn al-A‘rābī mentioned the meaning of having numerous dependants. Abu-l-Ḥasan ‘Alī ibn Ḥamzah al-Kisā’ī said that the Arabs used ‘āla and a‘lā for having numerous dependants. Abū Ḥātim said, ‘Ash-Shāfi‘ī had greater knowledge of the Arabic language than us. Perhaps it is a dialect.’ Ath-Tha‘labī the commentator related that his teacher Abu-l-Qāsim ibn Ḥabīb said, ‘I asked Abū ‘Umar ad-Dūrī about this. He is an unimpeachable master of language. He said that it is a dialect of Ḥimyar and quoted a verse for evidence.’ [POEM] Abū ‘Amr ibn al-‘Alā’ said, ‘There are so many prominent Arabs that I fear to take ungrammatical Arabic.’ Ṭalḥab ibn Muṣarrif recited ‘allā ta‘īlū’ which is the evidence of ash-Shāfi‘ī.

Ibn ‘Aṭiyyah said, ‘Az-Zajjāj and others rejected the interpretation that ‘āla is from ‘iyāl since Allah Almighty allowed many concubines and that entails many dependants. So how can it be closer to not having many dependants?’ This objection is not valid because concubines are part of property which can be disposed of by selling. Those dependants (‘iyāl) which diminish are free women with obligatory rights. Ibn al-A‘rābī related that the Arabs use the verb ‘āla of a man with many dependants.

This āyah is connected to someone who permits a slave to marry four wives since Allah did not specify in the āyah whether the stipulation applies to slaves or just free men. This is the position of Dāwud and aṭ-Ṭabarī, and it is known from Mālik, and his final position is what is in the Muwaṭṭā’. It is also related from Ibn al-Qāsim and Ashhab. Ibn al-Mawwāz mentioned that Ibn Wahb reported that Mālik said that a slave may only marry two wives, and that is position of al-Layth.

Abū ‘Umar said, ‘Ash-Shāfi‘ī, Abū Ḥanīfah and their people, ath-Thawrī and al-Layth ibn Sa‘d said that a slave may not marry more than two wives. Aḥmad and Isḥāq said that. It is related that ‘Umar ibn al-Khaṭṭāb, ‘Alī ibn Abī Ṭālib and ‘Abd ar-Raḥmān ibn ‘Awf said that a slave may not marry more than two. I do not know of anyone among the Companions who disagreed with that. It is the position of ash-Sha‘bī, ‘Aṭā’, Ibn Sīrīn, al-Ḥakam, Ibrāhīm and Ḥammād.’ The argument for this position is a sound analogy with divorce and ḥadd punishment. All say that his ḥadd is half that of a free man, his divorce is twice, his īlā’ is two months and the like of similar rulings. Therefore it is not unlikely for there to be a reduction in respect of marrying four wives. Allah knows best.

4 Give women their dowries as an outright gift. But if they are happy to give you some of it, consume it with pleasure and goodwill.

Give women their dowries as an outright gift.

Ṣaduqāt (dowries) is the plural of ṣaduqah. Al-Akhfash said, ‘The Banū Tamīm say “ṣudqah” and “ṣudqāt”. The dāl can have a fatḥah or a sukūn.’ Al-Māzinī said that it is called ṣidāq, not ṣadāq. Ya‘qūb and Aḥmad ibn Yaḥyā said that an-Naḥḥās said that it is ṣadāq.

Husbands are addressed in this āyah, according to Qatādah, Ibn Zayd and Ibn Jurayj. Allah commanded them to give their dowries as gifts to their spouses. It is said that it is addressed to guardians, according to Abū Ṣāliḥ. The guardian would take the woman’s dowry and not give her any of it. They were forbidden to do that and commanded to hand it over to them. We find in the transmission of al-Kalbī: ‘In the Jāhiliyyah, when a guardian gave a woman in marriage and she was with him in the same clan, he would not give her any of her dowry. If she was outside it, he would take her on a camel to her husband and not give her anything except that camel and so this āyah was revealed: “Give women their dowries as an outright gift.”’ Al-Mu‘tamir ibn Sulaymān reported that his father said, ‘A Ḥaḍramawtī claimed that what was meant by the āyah was those who practised the shighār marriage (exchanging women without dowries) and they were commanded to give them dowries. The first view is the more likely. The pronouns are the same and refer to husbands. They are those who are meant in these āyahs. It is mandatory for the pronouns to be in harmony.

This āyah indicates that a dowry is mandatory for a woman, and it is agreed upon and there is no disagreement except for what is related from one of the people of knowledge among the people of Iraq, that when a master marries his slave to his slave-girl, then there is no dowry obliged. This is not right because this āyah is not restricted in its command here and elsewhere (4:25). Scholars agree that there is no maximum to the dowry and disagree about its minimum, as will be dealt with later. (4:20)

Most recite ‘ṣaduqātihinna’. Qatādah recited ‘ṣudqātihinna’ and an-Nakha‘ī and Ibn Waththāb recited ‘ṣuduqatahunna’.

‘An outright gift’ is niḥlah or nuḥlah. They are two dialectical forms. Its root means a gift. Ṣadāq is a gift from Allah to the woman and it is said that nihlah is given willingly with no dispute on the part of the husband. Qatādah said that ‘niḥlah’ means ‘mandatory’. Ibn Jurayj and Ibn Zayd said, ‘a specified obligation’. Abū ‘Ubayd said that it must be known and specified. Az-Zajjāj said, ‘a religious obligation’. Niḥlah also means a religion. You say, ‘This is his religion (niḥlah).’ This is good inasmuch as it is addressed to the guardians who used to take it in the Jāhiliyyah so that a woman said about her husband:

He does not take the gift from his daughters.

She meant that he did not do what others did. Allah wrested it from them and commanded that it be given to women.

‘Niḥlah’ is in the accusative as a ḥāl modifying an implied verb. It implies: ‘Give them a gift.’ It is said that it is in the accusative for explanation, and it is said that it is a verbal noun in the position of a ḥāl.

But if they are happy to give you some of it,

This is addressed to husbands. The fact that it is general is evidence that it is permitted for a woman, virgin or non-virgin, to give her dowry to her husband, and that is the position of the majority of the fuqaha’. Mālik forbids a gift from a virgin to her husband and assigns that to the guardian even though she is the owner.

Al-Farrā’ claimed that it is addressed to the guardians because they would take the dowry and not give the woman any of it. They are not permitted to do that unless the woman is happy about it. The first position is sounder because the guardians were not mentioned.

The pronoun ‘it’ refers to the dowry. That is what ‘Ikrimah and others said. The reason that the āyah was revealed was that it was mentioned that some people avoided taking any of what they had given their wives. Then this was revealed.

Scholars agree that when a woman who has charge of herself gives her dowry to husband, that is carried out and she cannot take it back – except for Shurayh who thinks she can. He used this āyah as evidence and said that if she asks for it back, then she is not happy about it. Ibn ‘Arabī says that this is baseless because she was happy when it happened and it is like consuming something. Once it is consumed, it is gone. ‘Make use of’ is literally ‘eat’, but does not mean actual ‘eating’, but alludes to making something lawful. This is clear.

If a woman stipulates as a condition in the marriage contract that her husband may not marry another wife and for that provision she reduces some of her dowry, and then he does marry another wife, according to Ibn al-Qāsim she has nothing because it was an unacceptable condition, as occurred when the owners of Barīrah stipulated that they would have her walā’ if ‘Ā’ishah bought and freed her. The Prophet ﷺ validated the contract but not the condition. Here the reduction of the dowry is sound but not it being connected to not marrying another wife. Ibn ‘Abd al-Ḥakam said if the proper dowry for a woman of her class, or more than that, remains, then she does not demand anything from him. If she reduces something of her proper dowry and he marries another wife, then she can demand the full dowry of a woman of her class from him because he agreed to the stipulation and took recompense for it. Therefore, it is mandatory for it to be taken from him and he must fulfill it since the Prophet ﷺ said, ‘Believers abide by their conditions.’

This āyah is evidence that emancipation is not considered to be a dowry because it is not wealth since the wife cannot give it nor the husband consume it. This is the position of Mālik, Abū Ḥanīfah, Zafar, ash-Shaybānī and ash-Shāfi‘ī. Aḥmad ibn Ḥanbal, Ishaq and Ya‘qub say that it can be a dowry, based on the hadith related by the imams about Ṣafiyyah when the Prophet ﷺ freed her and made her being freed her dowry. It is related from Anas that he did that. He is also the one who relates the hadith about Ṣafiyyah. The first group say that there is no argument in the hadith about Ṣafiyyah because the Prophet ﷺ had the prerogative to marry without a dowry. He wanted to marry Zaynab and she was unlawful to Zayd. He married her without a walī or a dowry. Therefore, this is not evidence. Allah knows best.

It is said that the word ‘nafsan’ is in the accusative for clarification. Sībawayh and the Kufans do not permit putting something that is in the accusative for clarification first. Al-Māzinī and Abu-l-‘Abbās al-Mubarrad permit that when the regent is a verb. [POEM] An example of this in the Revelation is the phrase: ‘with downcast eyes, emerging’ (54:7). The people of Sībawayh said that ‘nafsan’ is in the accusative by an implied verb. It implies: ‘I mean personally.’ It is not in the accusative for distinction. If that is the case, there is no argument regarding it. [POEM] All agree that it is not permitted to put that which is distinguishing first when the regent is not inflected.

consume it with pleasure and goodwill.

What is meant by the verb ‘kulū’ here is not literally ‘eating’, but permission for whatever manner it is consumed. That is what is meant by His words in the following āyah: ‘People who consume the property or orphans wrongfully’ (4:10). What is meant is not actually eating, although eating is the most complete form of enjoyment of wealth which can be designated by the word ‘eating’. It is similar to Allah’s words: ‘When you are called to the prayer on the Day of Jumu‘ah, hasten to the remembrance of Allah and abandon trade.’ (62:9) It is not just trade that is being indicated here; what is meant is anything that distracts one from remembering Allah, such as marriage and other things. Trade is mentioned because it is the principal thing that distracts one from remembering Allah in this context.

The words ‘pleasure and goodwill’ are in the accusative as an adverbial ḥāl describing ‘it’. It is said that it describes something elided, such as a pleasant consumption with goodwill. Hana’a, yahna’u is used for food and drink delighting a person. Something agreeable is described as hanī‘. Han’ua is used for being wholesome The verbal noun is han‘ or hin‘. All that is consumed without difficulty or toil is with pleasure (hanī‘). Hanī’ is an active participle from hanu’a like ẓarīf from ẓarf. The verb is hani’a, yahna’u with the noun hani’. One says of food being enjoyed and digested, ‘hana’a and mara’a’. If hana’a is not mentioned but amrā’a is, then it means ‘digested’. Abu-l-‘Abbās said that Ibn al-A‘rābī had the verb with a middle kasrah, but it is uncommon. It is said that hanī‘ means with no sin and marī‘ means with no illness. Kuthayyir said:

May you enjoy it (hanī‘an marī‘an) without an illness mixed in, for a might which does not make our honour fair game.

A man visited ‘Alqamah while he was eating something which his wife had given him from her dowry. He said to him, ‘Eat from that which is pleasure and good will.’

It is said that hanī‘ means that which good and allowed and which does not disturb anything and marī‘ is that which has a praised outcome and will not injure or harm. It is also said: ‘they do not fear any demand for it in this world or come-back in the Next World.’ This is indicated by what Ibn ‘Abbās reported that the Prophet ﷺ said about this: ‘It is when she gives her husband a gift voluntarily without compulsion. It does not imply any power over you and Allah will not take you to task for it in the Next World.’ It is related that ‘Alī ibn Abī Ṭālib said, ‘When one of you has an illness, he should ask his wife for a dirham of her dowry and buy honey with it and drink it with rainwater and by that Allah will join for him what is pleasure and goodwill with blessed water.’ Allah knows best.

5 Do not hand over to the incompetent any property of theirs for which Allah has made you responsible, but provide for them and clothe them out of it, and speak to them correctly and courteously.

Do not hand over to the incompetent any property of theirs

When Allah commanded that orphans be given their property, and dowries be given to wives, He made it clear that it is not permitted to give minors or the incompetent their property. The āyah indicates affirmation of the need to have an executor, guardian, and custodian for orphans.

The people of knowledge agree that it is permitted to give the role of guardianship to a free, trustworthy, upright Muslim. They disagree about free women, but most say that it is permitted. Aḥmad deduces evidence in the fact that ‘Umar made Ḥafṣah an executrix. It is related that ‘Aṭā’ ibn Abī Rabāḥ said about a man who made his wife his executrix, ‘A woman may not be an executrix. If someone does that, the duty is transferred to a man of her people.’

They also disagree about slaves having the right of guardianship. Ash-Shāfi‘ī, Abū Thawr, Muḥammad and Ya‘qūb forbade it, and Mālik, al-Awzā‘ī and Ibn ‘Abd al-Ḥakam allowed it. It is the position of an-Nakha‘ī who made his slave an executor. This was already adequately discussed in al-Baqarah.

The linguistic meaning of ‘incompetent’ was mentioned in al-Baqarah. Scholars disagree about who the incompetent are. Sālim al-Afṭas reported from Sa‘īd ibn Jubayr that they are orphans who are not given their property. An-Naḥḥās said that this is the best of what has been said about this āyah. Ismā‘īl ibn Abī Khālid related that Abū Mālik said that they are young children who are not given their wealth lest they waste it and remain penniless. Sufyān related from Ḥumayd al-A‘raj that Mujāhid said that they are women. An-Nahḥās and others said that this is not sound, even linguistically, as the word sufahā’ is used and the Arabs use safā’ih or safīhāt for women. It is said: ‘Do not give your wealth in a qirāḍ or to an agent who is not good in commerce.’ It is related that ‘Umar said, ‘Whoever does not understand should not trade in our market.’ This is based on Allah’s words: ‘Do not hand over to the incompetent any property of theirs.’ This means those who are ignorant of rulings, and it is said that means the unbelievers, which is why scholars dislike Muslims entrusting a dhimmī with buying and selling or giving him a qirāḍ investment.

Abū Mūsā al-Ash‘arī said, ‘The incompetent are those who must be declared legally incompetent.’ This is general. Ibn Khuwayzimandād said, ‘As for debarring the incompetent from competence, there are different cases. Some are debarred because of youth, some due to lack of good sense owing to insanity or something else, and some because of poor management of property. As for someone who is unconscious, Mālik recommended that he not be declared incompetent because that quickly departs.’

Legal incompetence is sometimes for the sake of a person himself and sometimes for the rights of others. We have mentioned those under debarment for their own sake. Those debarred for the sake of others are slaves, those in debt, those who are ill, in respect of two-thirds of their property, bankrupts, wives in respect of their husbands’ entitlements, and a virgin in respect of herself. As for children and the insane, there is no disagreement about their limitation. As for an adult, in their case it is because they do not manage their property well and are not safe from ruining their property and so they resemble a child. There is a disagreement about this that will be dealt with. There is no difference between someone destroying his property through acts of disobedience, pious deeds or permitted ones. Our people disagree if they consume their property through pious deeds. Some debar them and some do not. There is no disagreement about slaves.

What a debtor has is taken from him and given to his creditors by the consensus of the Companions. ‘Umar did that to Usayfi‘ of Juhaynah and Mālik mentioned it in the Muwaṭṭā’.

As long as a virgin is secluded she is limited in her ability to transact because she is not considered good at overseeing her affairs until she marries, mixes with people and goes out, so that she is able to discern what is harmful from what is beneficial. As for someone ignorant of legal rulings, even he is not restricted with regard to making his property grow or lack of management, he is not given his property because of his ignorance of what constitutes valid and invalid sales and what is lawful and unlawful. In the case of a woman with a husband, the Messenger of Allah ﷺ said, ‘A wife is only permitted to dispose of a third of her property.’

In the case of someone who is ignorant of legal rulings, even if he is competent with regard to growing his wealth and managing it, property is not given to him since he is ignorant of what is sound and unsound in transactions or what is unlawful and unlawful. The same applies to a dhimmī both on account of his ignorance of correct sales and because it is feared that he will engage in usury, and Allah knows best.

Scholars disagree about the reason for the ascription of property to ‘you’ when it actually belongs to the incompetent. [The Arabic is literally ‘your property’.] It is said that it is ascribed to them because it is in their possession and they oversee it and so the ascription is expanded, as when Allah says: ‘greet one another’ (24:61) [The Arabic is literally ‘yourselves’] and: ‘kill yourselves’ (2:54).

It is said that it is ascribed to them because it is the same sort of property as theirs. Property is shared between creatures and moves from one hand to another and from one owner to another, meaning that it is theirs when they need it, like your property which guards your honour, protects you and exalts your worth and by which you support yourselves.

A second position is articulated by Abū Mūsā al-Ash‘arī, Ibn ‘Abbās, al-Ḥasan and Qatādah. It is that what is meant by the property of those addressed is actual. Ibn ‘Abbās said, ‘Do not give the property on which your livelihood depends to your wife and child and thus remain poor, waiting for them and what they have. You should be the one who spends on them.’ According to this, the ‘incompetent’ are women and young children. This is transmitted along with the position of Mujāhid and Abū Mālik about the incompetent.

The āyah indicates that it is permitted to limit the competence of the incompetent by the command of Allah to do that here. Allah also says: ‘If the person incurring the debt is incompetent or weak.’ (2:282) So guardianship is confirmed for the incompetent as it is for the weak. Weakness refers to children and lack of competence to adults. That is because ‘incompetent’ is a word entailing blame, and there is no blame for what someone has not earned. The pen does not record against someone who is not an adult, so they have no blame. Al-Khaṭṭābī said that.

Scholars disagree about the actions of the incompetent when they are considered to be legally incompetent. Mālik and all his people except for Ibn al-Qāsim say that the dealings and commands of the incompetent are permitted until the ruler stops them. That is the position of ash-Shāfi‘ī and Abū Yūsuf. Ibn al-Qāsim said that their dealings are not permitted, even if the ruler does not stop them. Asbagh says that if someone’s incompetence is clear, his dealings are rejected, but if it is not evident, then his dealings are not rejected until the ruler bars him. Saḥnūn uses as evidence Mālik words, ‘If the dealings of the incompetent had been rejected before they were deemed incompetent, there would be no need for the ruler to do that to anyone.’

There is disagreement about limiting the competence of an adult. Mālik and the majority of fuqahā’ say that it may be done but Abū Ḥanīfah said that a sane adult cannot be declared legally incompetent unless he ruins his property. If that is the case, he is not given his property until he is twenty-five. When he is twenty-five, it is given to him in any case, whether he spoils it or not because it was kept from him for twelve years. Then he could have had a child six months later and become a father and a grandfather. He said, ‘I am embarrassed to debar someone who might be a grandfather.’ It is said that he said about the period of debarring property, that it is when it reaches the point of being spoiled, in which case it can be forbidden to hand over property out of caution.

All of this is weak both in terms of reason and tradition. Ad-Dāraquṭnī related from Muḥammad ibn Aḥmad ibn al-Ḥasan aṣ-Ṣawwāf from Ḥāmid ibn Shu‘ayb from Shurayḥ ibn Yūnus from Ya‘qūb ibn Ibrāhīm, who is Qāḍī Abū Yūsuf, from Hishām ibn ‘Urwah from his father that ‘Abdullāh ibn Ja‘far went to az-Zubayr and said, ‘I have purchased such-and–such goods. ‘Alī wants to go to the Amīr al-Mu’minīn to ask him to debar me with respect to it!’ Az-Zubayr said, ‘I am your partner in the transaction.’ ‘Alī went to ‘Uthmān and said, ‘Ibn Ja‘far purchased such-and-such goods. Debar him with respect to them.’ Az-Zubayr said, ‘I am his partner in the transaction.’ ‘Uthmān said, ‘How can I debar a man in a sale when az-Zubayr is his partner in it?’ Ya‘qūb said, ‘I adopt debarring and think it is correct. I invalidate the sale and purchase of someone debarred. I allow what he bought or sold before he was debarred.’ Ya‘qūb ibn Ibrāhīm said, ‘Abū Ḥanīfah does not debar or adopt limitation.’ The statement of ‘Uthmān, ‘How can I debar a man’, is evidence that it is permitted to debar an adult. ‘Abdullāh ibn Ja‘far was born in Abyssinia and was the first child born in Islam. He came to the Prophet ﷺ with his father in the year of Khaybar and listened to him and memorised from him. Khaybar was in 5 AH. This refutes the view of Abū Ḥanīfah. His argument will be dealt with, Allah willing.

for which Allah has made you responsible,

This means your livelihood and good state of your dīn. There are three dialectical forms of ‘which’: allatī, allati (with kasrah) and allat (wih sukūn). There are also three dialectical forms of the dual: allatāna, allatā (with the nūn elided), and allatānni. The plural will be dealt with in its place in this sūrah, Allah willing.

‘Qiyām’ and ‘qiwām’ both mean to attend to the best interests of someone. It is said that qiyām is attending to the family and qiwām is attending to the house. He is he one who puts it right. It is qiwām, the wāw has replaced the yā’. The people of Madīnah read it as ‘qiyam’ without alif. Al-Kisā’ī and al-Farrā’ said that ‘qiyam’ and ‘qiwām’ both mean ‘qiyām’. They believe that it is in the accusative through being a verbal noun. It means: ‘Do not hand over to the incompetent their property which you put in order and are responsible for putting in order.’ Al-Akhfash says that it means to manage their affairs, believing that it is plural. The Basrans say that qiyam is a plural of qīmah, like dīmah and diyam, meaning that Allah has acquainted you with the value of things.’ Abū ‘Alī said that this view is wrong and said that it is a verbal noun like qiyām and qiwām. Its root is qiwam, but it is irregular in becoming a yā’ as we see in jiyād as the plural of jawād, and the like. Qiwam, qiwām an qiyām mean being in firm is rectifying the state of something and being constant in that.

Al-Ḥasan and an-Nakha‘ī recited ‘allātī’ as the plural of ‘allatī’. The common reading is ‘allatī’. Al-Farrā’ said that in Arabic one usually uses allawātī for women and allatī for property as well as other things than property. An-Naḥḥās mentioned it.

but provide for them and clothe them out of it.

This means: ‘Appoint for them out of it or allot them out of it.’ This is about those that a man is obliged to support and clothe: his wife or young children. It is evidence that it is mandatory for a father to maintain his child and a husband to maintain his wife. Al-Bukhārī reports from Abū Hurayrah that the Prophet ﷺ said, ‘The best ṣadaqah is that given by the wealthy. The upper hand is better than the lower hand. Begin with your immediate dependents. A woman says, “Either feed me or divorce me.” A slave says, “Feed me and employ me.” A child says, “Feed me. Who will you leave me to?”’ They said, ‘Abū Hurayrah, did you hear this from the Messenger of Allah ﷺ?’ ‘No,’ he said, ‘this is from the bag of Abū Hurayrah!’ Al-Muhallab said, ‘Maintenance of one’s wife and children is mandatory by consensus. This hadith is evidence for that.’

Ibn al-Mundhir said that there is disagreement about the age at which the maintenance of children ends when they have no money or work. One group say that a father should support male children until they reach puberty and girls until they marry and the marriage has been consummated. If a daughter is divorced after consummation or she is widowed, the father does not have to support her. If she is divorced before consummation, he must continue to support her.

Maintenance of grandchildren is not obligatory. This is the position of Mālik. One group say that a grandfather should maintain his grandchildren until puberty or menstruation and then does not have to maintain them after that unless they are chronically ill, and that male and female are the same in that respect if they have no property. That also applies to great grandchildren and so on, if they do not have a father who is able to provide for them. This is the position of ash-Shāfi‘ī.

One group oblige maintenance for all children, including adult men and women, when they do not have adequate maintenance. This is based on the literal meaning of the words of the Prophet ﷺ to Hind: ‘Take what is sufficient for you and your children in a reasonable manner.’ We also find a hadith reported by Abū Hurayrah in which a child says, ‘Feed me. Who will you leave me to?’ It indicates that anyone who has no ability or profession may say that. However, someone who has reached puberty should not say that because they can work for themselves and earn, as indicated by the words of the Almighty: ‘until they reach a marriageable age’ (4:6), and He set the age of marriage as a limit for that.

The words, ‘A woman says, “Either feed me or divorce me”’ refute those who say that there is no divorce on account of poverty and that the woman should be patient. Maintenance is a husband’s responsibility by the ruling of a judge. This is the position of ‘Aṭā’ and az-Zuhrī. The Kufans believe that, holding to the words of the Almighty: ‘If someone is in difficult circumstances, there should be a deferral until things are easier.’ (2:280) They said, ‘Therefore it is obliged for her to wait until her husband is wealthier.’ Allah says: ‘Marry off those among you who are unmarried.’ (24:22) They said, ‘Here the Almighty recommends marrying off the poor, and so poverty cannot be considered a reason for divorce, since it does not forbid marriage.’ They have no proof in this āyah as will be explained in the proper place. The hadith is the text for the dispute.

It is said that this is addressed to the guardians of orphans, authorising them to spend some of their wealth which is under their supervision as we already mentioned concerning the ascription of wealth. A guardian spends on the orphan according to his wealth and circumstances. If he is young and has much wealth, he procures a wet-nurse and carers for him and spends generously on him. If he is old, he allots him fine clothes, delicious food and servants. If he is less well off than that, he spends accordingly. If he has still less than that, he must provide basic food and clothing according to need. If orphans are poor without any wealth, then the ruler must support them from the Treasury. If the ruler does not do it, then the Muslims must do it based on whoever is closer to to the orphan concerned. His mother is closest to him and she must nurse him and support him. Neither she nor anyone else can demand to be paid back for that. This was already mentioned in al-Baqarah (2:233).

speak to them correctly and courteously.

This means with gentle words and promises of care. There is disagreement about ma‘rūf. It is said that it means to pray for them, using such words as: ‘May Allah bless you and protect you,’ or saying, ‘I will look after you,’ and similar things. It is said that it means to promise them good, telling them, ‘When you are mature, we will give you your property’ or a parent telling his child, ‘My wealth will go to you and you, Allah willing, will own it when you are mature and know how to deal with it.’

6 Keep a close check on orphans until they reach a marriageable age, then if you perceive that they have sound judgment hand over their property to them. Do not consume it extravagantly and precipitately before they come of age. Those who are wealthy should abstain from it altogether. Those who are poor should use it sensibly and correctly. When you hand over their property to them ensure that there are witnesses on their behalf. Allah suffices as a Reckoner.

Keep a close check on orphans until they reach a marriageable age,

This means to test and ascertain their state. This is addressed to everyone in explaining how to give them their property. It is said that it was revealed about Thābit ibn Rifā‘ah and his uncle. Rifā‘ah died leaving a child who was a minor. His uncle Thābit went to the Prophet ﷺ and said, ‘My nephew is an orphan in my care. What is lawful for me of his property and when should I hand it over to him?’ So Allah revealed this āyah.

Scholars disagree about the meaning of ‘keeping a close check’. It is said that a guardian should assess the character of the orphan in his care and listen to his desires, thereby obtaining knowledge of his excellence and of his ability or inability to deal with his his property in his own best interests. If he is good in this respect, scholars and others say that there is no harm in giving him some of his money which he can dispose of. If it grows and he attends to it well, he passes the test and then the guardian must hand over all of his property to him. If he is a poor manager, then the guardian should keep hold of his property. No one says that if the child is tested and found to have good judgment, guardianship is automatically removed and his guardian must give him his money and allow him to deal with it since the Almighty says: ‘until they reach a marriageable age.’

A group of fuqahā’ say that the child must either be a boy or girl. If it is a boy, he is tested by being allowed to spend on the household for a month, or is given a small amount to deal with to see if he can manage it well. Nonetheless, he is overseen while doing that to ensure he does not misspend it. If he does misspend it, his guardian is not liable. When the guardian sees that he is able to act correctly, he should hand over his property to him in the presence of witnesses. If it is a girl, her guardian should give her what would normally be given to the lady of the house to manage, for instance, the spinning process and oversee the spinners in terms of buying and paying for cotton and completing the spinning process in full. If he sees that she has sound judgment, he should give her her property. Otherwise orphans should remain in care until their good judgment is ascertained. Al-Ḥasan, Mujāhid and others said that they should be tested in respect of their minds, their dīn and their ability to make their property grow.

The term ‘marriageable age’ means puberty since Allah says: ‘Once your children have reached puberty.’ (24:59) It means the age of puberty and marriage. There are five signs of puberty. Three are common to men and women and two apply to women alone, namely, menstruation and pregnancy. Scholars do not disagree that menstruation or pregnancy indicates puberty and then the obligations and rulings dependent on that are obliged for her. They disagree about the other three. As for growth of hair and age, al-Awzā‘ī, ash-Shāfi‘ī and Ibn Ḥanbal say that for a boy it is the age is fifteen if he has not had a wet dream. That is the position of Ibn Wahb, Asbagh, ‘Abd al-Malik ibn Mājishūn, ‘Umar ibn ‘Abd al-‘Azīz and a group of the people of Madīnah. Ibn al-‘Arabī also preferred that. The ḥudūd and obligations are obliged in their view on someone of this age. Aṣbagh ibn al-Faraj says, ‘What we say is that the age at which the ḥudūd and obligations of the dīn are imposed is fifteen. I prefer that and recommended it because it is the age at which one can participate in jihād.’ His evidence is the account of Ibn ‘Umar when he presented himself for the Battle of the Ditch. He was fifteen and was allowed to participate but he had not been allowed to participate at Uḥud when he was fourteen. Muslim transmitted it.

Abū ‘Umar ibn ‘Abd al-Barr said, ‘This is when the date of someone’s birth is known. If his time of birth and age is unknown, or he denies it, then one acts according to what Nāfi‘ related from Aslam from ‘Umar ibn al-Khaṭṭāb. He wrote to his generals: “Only impose the jizyah on those who have started to shave.”’ ‘Uthmān said about a boy who had stolen: ‘See if his pubic hair has begun to grow. If it has, then cut off his hand.’ ‘Aṭiyyah al-Quraẓī said, ‘The Messenger of Allah ﷺ dealt with the Banū Qurayẓah and, going by the judgment of Sa‘d ibn Mu‘ādh, killed all of them who had pubic hair and excused those whose pubic hair had not yet begun to grow. I was one of those in that category and he left me.’

Mālik, Abū Ḥanīfah and others said that there is no judgment against anyone who has not had a wet dream until they reach the age at which someone must have reached puberty. That is considered to be seventeen. Then the hadd punishment is imposed on them. Mālik once said that it is when the voice breaks and the nose is fully formed. In another variant from Abū Ḥanīfah, the age is nineteen, and that is what is best known. He said about a girl that she reaches puberty at seventeen, but there is some debate about this. Al-Lu’lu’ī said that the age is eighteen. Dāwud said that he does not reach the age of puberty if he does not have a wet dream, even if he is forty.

As for the growth of pubic hair, some say that that indicates puberty. That is related from Ibn al-Qāsim and Sālim. Mālik said that once and it is one of the positions of ash-Shāfi‘ī. Aḥmad, Isḥāq and Abū Thawr also said that. It is said that it denotes puberty and it was a judgment used in regard to the unbelievers: those with pubic hair were killed and those without made captives. Ash-Shāfi‘ī said this in another position which is based on the hadith of ‘Aṭiyyah al-Quraẓī. A little fluff is not considered sufficient, proper hair growth is needed. Ibn al-Qāsim said, ‘I heard Mālik say, “What is acted on with us is based on the hadith of ‘Umar ibn al-Khaṭṭāb, who said: ‘If the razor has been passed over him, I will impose the ḥadd punishment on him.’”’ Asbagh said, ‘Ibn al-Qāsim said to me, “I prefer that the ḥadd punishment should only be carried out on someone when there is both hair growth and puberty.”’ Abū Ḥanīfah said that the growth of hair is means nothing and is not a sign of puberty nor proof of it.

Az-Zuhrī and ‘Aṭā’ said that no ḥadd punishment can be imposed on anyone who has not reached puberty, and that is the position of ash-Shāfī‘ī. Mālik inclined to that view once and it is held by some of his followers. Its literal meaning implies not paying attention to hair growth or age. Ibn al-‘Arabī said, ‘If the hadith of Ibn ‘Umar is not a proof of age, then every age they mention is a false claim. The age at which the Messenger of Allah ﷺ allowed him to go is more appropriate than the age that he considered insufficient and for which there is no evidence in the Sharī‘ah. Similarly the Messenger of Allah ﷺ considered hair growth in respect of the Banū Qurayẓah. Who will excuse someone for abandoning two matters which the Messenger of Allah ﷺ took into consideration and consider what the Messenger of Allah ﷺ did not consider and Allah did not appoint in the Sharī‘ah.’

Ibn al-‘Arabi says this in the context of this ayah, but the reverse in Sūrat al-Anfāl since he does not base himself on the hadith of Ibn ‘Umar, but interprets it as our scholars do. What differentiates between those who are able to fight and receive a share and those who cannot and do not receive a share is the age of fifteen. Those younger are dependents. That is what ‘Umar ibn ‘Abd al-‘Azīz understood from the hadith. Allah knows best.

then if you perceive that they have sound judgment hand over their property to them

Ānasa means to see, perceive and know. It is also used in 28:29 with that meaning. Az-Zuhrī said, ‘The Arabs say, ‘Go and look (asta’nis) if you see anyone.’ [POEM] One says ānastu, aḥsastu and wajadtu mean the same. The root is to perceive.

Most recite ‘rushd’ (sound judgment) while as-Sulamī, ‘Īsā, ath-Thaqafī and Ibn Mas‘ūd recited ‘rashad’. They are two dialectical possibilities. Scholars disagree about the interpretation of ‘rushd’. Al-Ḥasan, Qatādah and others said that it refers to soundness in both mind and dīn. Ibn ‘Abbās, as-Suddī, and ath-Thawrī said that it is about soundness of mind and preservation of property. Sa‘īd ibn Jubayr and ash-Sha‘bī said, ‘It is when a man trims his beard and shows his good sense. One does not give an orphan his property, even if he is an old man, until one is discerns his good sense.’ That is like what aḍ-Ḍaḥḥāk said: ‘An orphan is not given his property, even if he is a hundred years old, until it is known that he can deal properly with it.’ Mujāhid said that rushd only applies to soundness of mind.

Most scholars believe that rushd only exists after puberty and if an orphan still shows no sound judgment after puberty, even if they are old, the status of legal incompetence is not removed from them. That is the position of Mālik and others. Abū Ḥanīfah says that an adult free man cannot be declared legally incompetent after reaching puberty, even if he is the most impious and spendthrift of people, as long as he is sane. Zufar ibn al-Hudhayl also said that, and it is the position of an-Nakhā‘ī. Their evidence for that is what Qatādah related from Anas about Ḥabbān ibn Munqidh. He used to sell and he was unguarded in his contracts: It was asked, ‘Messenger of Allah, should he be debarred? There is weakness in his contracts.’ The Prophet ﷺ summoned him and said, ‘Do not sell.’ He said, ‘I cannot bear not to.’ He told him, ‘Then when you sell, say, “No cheating,” and you have an option to retract for three days.’ They said that because people asked for him to be declared legally incompetent due to the way he was being cheated in transactions and the Prophet ﷺ did not do that, that it confirms that making adult people legally incompetent is not permitted. There is no proof in that because it was a special case as we explained in al-Baqarah. Other people are not subject to it.

Ash-Shāfi‘ī says that if someone ruins his property and his dīn, or his property but not his dīn, he should be declared legally incompetent. If he ruins his dīn and puts his property in order, there are two possibilities. One is that he is declared legally incompetent, which is what is preferred by al-‘Abbās ibn Shurayḥ. The other is that he is not, and that is preferred by Isḥāq al-Marwazī, and it is the most apparent position of the school of ash-Shāfi‘ī. Ath-Tha‘labī said, ‘What we mentioned about making a simpleton legally incompetent was the position of ‘Uthmān, ‘Alī, az-Zubayr, ‘Ā’ishah, Ibn ‘Abbās, and ‘Abdullāh ibn Ja‘far among the Companions, and Shurayḥ among the Tābi‘ūn. Among the fuqahā’, it is the position of Mālik and the people of Madīnah, al-Awzā‘ī and the people of Syria, Abū Yūsuf, Muḥammad, Aḥmad, Ishāq and Abū Thawr. Ath-Tha‘labī said, ‘Our fellows claim that there is consensus in respect of it.’

The upshot of all this is that you should know that there are two preconditions for handing over property: ascertainment of good judgment and puberty. If there is one but not the other, it is not permitted to hand property over. That is the testing ordered by the āyah. It is transmitted by Ibn al-Qāsim, Ashhab, and Ibn Wahb from Mālik. It is the position of the fuqahā’ with the exception of Abū Ḥanīfah, Zafar and an-Nakha‘ī, who remove this stipulation when the person concerned reaches the age of twenty-five. Abū Ḥanīfah said that that is because he might be a grandfather. This indicates the weakness of his position, and the argument of Abū Bakr ar-Rāzī in Aḥkām al-Qur’ān, which makes use of it, is weak regarding the two āyahs, as was already mentioned. It comes under the principle of the unrestricted (muṭlaq) and restricted (muqayyad), and the people of uṣūl agree that the unrestricted returns to what is restricted. What is the point of saying he might be a grandfather when he is not one? However, in the case of a girl, our scholars stipulate consummation of marriage as well as puberty.

Then there is the test of good judgment. Abū Ḥanīfah and ash-Shāfi‘ī thought that both male and female should be tested, whereas our scholars differentiate between them and say that girls differ from boys since they are confined and not concerned with business and do not go out because they are unmarried. That is why one waits for a girl to be married and so all the goals are focused in that. A male is different in that he deals with matters and meets with people from the beginning of his development until he reaches puberty and so he has experience and his mind is completely formed at puberty. Therefore, the goal is achieved in his respect. What ash-Shāfi‘ī said is more correct. Sexual intercourse with actual penetration cannot be said to increase her good judgment when she is already aware of all her affairs and goals and does not squander her money.

Then our scholars continue and add, ‘Her marriage with her husband must be consummated and followed by a lapse of time in which in which she gains practical experience.’ Ibn al-‘Arabī said, ‘Our scholars have many positions about how long that should be. Some say five, six or seven years for a woman with a father. They set one year after consummation for an orphan girl without a father or guardian and make it perpetual for one with a guardian until her good judgment is confirmed. There is no evidence for any of this. The stipulation of years in respect of a woman with a father is harsh and, even harsher than it, is a year for an orphan. And as for the continuation of denial of legal competence for a woman with a guardian until her good judgment is clear, the guardian brings her out of it or a judge does so. So it goes by the literal text of the Qur’an. It is all subject to this āyah.’ ‘Good judgment’ is considered, but ascertainment of it varies according to different circumstances of the one ascertaining it. He recognises it and avoids being arbitrary when there is no evidence for it.

They disagree about the actions of a woman with a father during that period. It is said that what she does can be revoked as long as she is considered legally incompetent but that what she does after that is allowed. Some say that what she does in that period is subject to being revoked unless it is clear that it is correct, and what she does after that is assumed to be carried out unless it is clearly a matter of incompetence.

They disagree about giving property to a person who is legally incompetent and whether that requires the permission of the ruler. One group say that the case must be presented to the ruler and the person’s good judgment confirmed with him, and then they may be given their property. Another group say that the matter is left to the discretion of the guardian without having to be taken before the ruler. Ibn ‘Aṭiyyah said that the correct position is that the guardians of our time must present the case to the ruler and confirm the person’s good judgment in his presence. That is because guardians may contrive to have a child deemed to be competent when someone who is incompetent would not be responsible for his dealings because of his incompetence and lack of good judgment at that time.

When property is handed over on the basis of a person having good judgment and then they revert to incompetence by displaying extravagance and lack of management, we think that they are again deemed to be legally incompetent. That is one of two positions of ash-Shāfi‘ī. Abū Ḥanīfah disagrees on the basis that the person concerned is an adult, and his responsibility in cases of retaliation and ḥudūd is accepted. Our evidence is the words in the āyah: ‘Do not hand over to the incompetent any property of theirs for which Allah has made you responsible’ (4:5) and ‘If the person incurring the debt is incompetent or weak or unable to dictate, then his guardian should dictate to him justly.’ (2:282) Allah did not make a distinction between the person who is legally incompetent being incompetent or having that happen to him in general.

It is permitted for guardians to deal with an orphan’s property as a father would – with respect to trade and buying and selling. He must pay the zakāt due on their property, be it on money, crops, livestock or fiṭrah, and any fines for damages, maintenance of parents and all statutory rights. They are permitted to arrange a marriage for them, pay the dowry for them, buy them a slavegirl and attend to what is generally considered their best interests. If they settle some of their debts and leave others, that is permitted. If the remainder of their property is used up, the remaining creditors can do nothing against the guardian or those whose debts have been settled. If the creditors take all of an orphan’s property and then other creditors come and he knew about that debt, or the deceased had acknowledged the debt, then the guardian is liable and he can go back to the first creditors to demand a redistribution. If he did not know about that, and the deceased had not acknowledged it, then the guardian owes nothing. If he pays a creditor without witnesses, he is liable. If there were witnesses and a long time has passed and the witnesses have died, he owes nothing. This was already discussed in al-Baqarah (2:220) in the rulings concerning the executor with respect to spending and other things.

Do not consume it extravagantly and precipitately before they come of age.

This does not mean that consuming it without extravagance is permitted. What is meant is: ‘Do not consume it. That is extravagance.’ Allah forbade guardians to consume orphans’ property other than what is permissible and necessary as will be explained. Isrāf is extravagance and excessiveness. It was already mentioned in Āl ‘Imrān. Saraf is error in spending as the poet said:

They gave a hundred camels, eight men driving them. Their gift contained no favour requiring recompense nor error in the gift.

It means that they did not miss the proper amount for the gift. Another said:

Their speaker spoke when the horses trampled them, ‘You overdid it.’ We answered, ‘We are extravagant.’

An-Naḍr ibn Shumayl said that saraf is squandering and negligence. Isrāf will be further explained in al-An‘ām, Allah willing.

‘Precipitately’ means before they grow up and become adult. It means to rush to something. It means: ‘Do not avail yourself of the property of the one who is legally incompetent and in your care and consume it, saying, “I will take it before he is an adult so that he will not have sound judgment and take it.”’ Ibn ‘Abbās and others said that.

Those who are wealthy should abstain from it altogether.

Allah makes it clear what is lawful for them of this property and commanded that someone who is wealthy should refrain from it while He permits a poor guardian to consume from the property of the charge in a correct manner. ‘Iffah (the root of ista‘ffa) means to abstain from what is not lawful or proper. To abstain from something is to abandon doing it. Allah says: ‘Those who cannot find the means to marry should be abstinent (la-yasta‘fif).’ (24:33) ‘Iffah is to refrain from everything that is not lawful and which one should not do. Abū Dāwud related from Ḥusayn al-Mu‘allim from ‘Amr ibn Shu‘ayb from his father from his grandfather that a man went to the Prophet ﷺ and said, ‘I am poor and have nothing and I am also the guardian of an orphan.’ He said, ‘Use your orphan’s property but not extravagantly or precipitately or in an attempt to enrich yourself.’

Those who are poor should use it sensibly and correctly.

Scholars disagree about who is addressed by this āyah. We find in Ṣaḥīḥ Muslim that ‘Ā’ishah said about the phrase ‘Those who are poor should use it sensibly and correctly’: ‘It was revealed about an orphan’s guardian who maintains him and attends him. When he is in need, he can use some of it.’ One variant has, ‘Correctly according to the amount of his property.’

Some say that what is meant is the orphan himself – when he is wealthy, he is generous to his guardian and refrains from his property. If he is poor, he spends on him accordingly. That was stated by Rabī‘ah and Yaḥyā ibn Sa‘īd. The first is the sound position of the majority because the orphan is not instructed to spend because he is a child and legally incompetent. Allah knows best.

Most disagree about what consuming correctly is. Some say that it is borrowing when in need and settling the debt when wealthy. That was stated by ‘Umar ibn al-Khaṭṭāb, Ibn ‘Abbās, ‘Abīdah, Ibn Jubayr, Ash-Sha‘bī, Mujāhid and Abu-l-‘Ālīyah. It is the position of al-Awzā‘ī. A guardian should not borrow more than he needs. ‘Umar said, ‘In relation to the property of Allah I put myself in the position of a guardian in relation to an orphan’s property. If I am wealthy, I abstain. If I am in need, I consume correctly. Then when I am wealthy again, I repay it.’ ‘Abdullāh ibn al-Mubārak related from Abu-l-‘Ālīyah that the words ‘those who are poor should use it sensibly and correctly’ refer to taking a loan. Then he recited the rest of the āyah.

A second position related by Ibrāhīm, ‘Aṭā’, al-Ḥasan al-Baṣrī, an-Nakha‘ī, and Qatādah is that a poor guardian does not have to pay back what he uses when it is consumed correctly because that is the right of supervision. The fuqahā’ take that position. Al-Ḥasan said, ‘It is food from Allah for him.’ That consists of consuming what will satisfy his hunger and wearing what will clothe his nakedness. He may not wear fine cotton or robes. The proof of the soundness of this position is the consensus of the Community that a ruler who oversees the Muslims is not indebted for what he consumes correctly because Allah Almighty has allotted him his share in the property of Allah. They have no argument in the words of ‘Umar, ‘When I am wealthy, I repay it,’ even if it is sound.

It is related from Ibn ‘Abbās, Abu-l-‘Ālīyah, and ash-Sha‘bī that consuming correctly refers to things like using milk from herds, employing slaves and riding animals when the capital is not harmed, applying tar to mangy animals, looking for lost animals, plastering water-basins and harvesting dates. As for the sources of wealth and capital, a guardian may not take that. This is all transmitted with the position of the fuqahā’ that a guardian may take a wage for his work. A group said that and that that is what is correct and he does not have to pay it back. Taking more than that is forbidden.

Al-Ḥasan ibn Ṣāliḥ ibn Ḥayy made a distinction between a guardian appointed by the father and a guardian appointed by a judge. A guardian appointed by the father can consume correctly while one appointed by a judge is not permitted to touch the property in any way. This is a third position.

There is a fourth position related from Mujāhid who said that a guardian may not take a loan or anything else and he believes that the āyah is abrogated by the words of Allah: ‘O you who believe, do not consume one another’s property by false means, but only by means of mutually agreed trade.’ (4:29) This is not commerce. Zayd ibn Aslam said that the āyah is abrogated by Allah’s words: ‘People who consume the property of orphans wrongfully’ (4:10). Bishr ibn al-Walīd reported that Abū Yūsuf said, ‘I do not know. Perhaps this āyah was abrogated by: “O you who believe, do not consume one another’s property by false means, but only by means of mutually agreed trade.” (4:29)’

A fifth position distinguishes between being at home and being on a journey. On this understanding a guardian is barred from using an orphan’s property when he is resident within in a city, but when he needs to travel for the orphan’s sake, he can take what he needs but should not trade. Abū Ḥanīfah and his people said that.

A sixth position espoused by Abū Qilābah is that he may consume in a correct manner from any income. As for the capital, he may not take any of it, as a loan or otherwise.

A seventh position, related by ‘Ikrimah from Ibn ‘Abbās, is that he may use the property when he is compelled by dire need. Ash-Sha‘bī said, ‘Then it is like blood and pork which someone in dire need may consume.’ An-Naḥḥās said that this makes no sense because in extreme need the same ruling applies to all property, not just the orphan’s.

Ibn ‘Abbās and an-Nakha‘ī also said that what is meant is the guardian consuming correctly from his own property so that he has no need of the orphan’s property. Someone wealthy refrains because of his wealth and someone poor stints himself so that he has no need of the orphan’s property. This is the best of what is related about the commentary on the āyah because other people’s property is sacrosanct. None of it is open to use unless there is an absolute pressing need.

Aṭ-Ṭabarī preferred this position in Aḥkām al-Qur’ān. He said, ‘Some of the early people imagined that the ruling of this āyah is that a guardian has general permission to consume the property of a child to an extent which does not reach extravagance. That is contrary to what Allah Almighty commands when He says: “Do not consume one another’s property by false means, but only by means of mutually agreed trade.” This is not possible in respect of an orphan’s property. Allah’s words: “Those who are wealthy should abstain from it altogether,” refer to consuming his own property rather than that of the orphan. It means: “Do not consume orphans’ property together with your own property,” in other words confine yourself to using your own property. This is indicated by the words of Allah: “Do not assimilate their property into your own. Doing that is a serious crime.” (4:2) And it is made clear by His words: “Those who are wealthy should abstain from it altogether. Those who are poor should use it sensibly and correctly.” It is confined to sufficiency so that he does not need to consume the orphan’s property. This is the full meaning of the āyah.’

We found that āyahs of judgment forbid the consumption of another person’s property without their consent, especially that of an orphan. We found that this āyah is susceptible to various interpretations. It can make specific what is obliged by the āyahs of judgment. Those who support the position of the early people say that qāḍīs take a wage because of their work for the Muslims. Is not a guardian in the same position when he works for an orphan? So why would he not take a wage for the work he does? They should be told that they must know that none of the early people permitted a guardian to take any of a child’s property when the guardian is wealthy. This is not the case with a qāḍī. That is the difference between the two cases. Furthermore, the position taken by the fuqahā’, qāḍīs and caliphs was that attending to the affairs of Islam does not entitle them to your property. Allah assigned unclaimed lost property to various categories, one of which are qāḍīs. A guardian would be taking for his work some of the property of a particular person without their consent. His work is unknown and his wage unknown. That is far from constituting entitlement.

Our Shaykh, Imām Abu-l-‘Abbās said, ‘If the estate of the orphan is very large and requires a lot of attention on the part of the guardian, which distracts him from his needs and concerns, then a wage for his work is allotted to him. If it is insignificant and does not distract him from his needs and concerns, he should not consume any of it, although it is recommended for him to have a small drink of milk and eat a little food and ghee, without causing harm or taking a lot of it. That is according to custom.’ Our Shaykh said, ‘The mention of a wage and taking a small amount of dates and milk is confined to an appropriate amount. That is a correct application of the āyah.’ Allah knows best. It is better, however, to be cautious.

As for what a qāḍī takes for dividing inheritance and is called a fee, I do not know of any justification for it and it is not lawful. That falls under the generality of Allah’s words: ‘People who consume the property of orphans wrongfully consume nothing in their bellies except fire.’ (4:10)

When you hand over their property to them ensure that there are witnesses on their behalf.

Allah commands the presence of witnesses to ensure the preservation of the property and remove any suspicion. A group of scholars say that this testimony is recommended and that the statement of a guardian is accepted because he is a trustee. Another group say that it is obligatory, which conforms with the literal meaning of the āyah, and that the guardian is not a trustee, making his statement accepted on that basis. He is in the position of an agent (wakīl) when he claims that he has returned what he was given or entrusted with and he is a trustee of the father: his statement is not accepted against another’s. Do you not see that if an agent claims that he gave Zayd what he was commanded to, based on his integrity, his statement requires confirmatory evidence? The same applies to guardians.

‘Umar ibn al-Khaṭṭāb and Ibn Jubayr said that there should be witnesses to an affluent guardian repaying what he borrowed of an orphan’s property in a state of need. ‘Abīdah said, ‘The āyah is evidence that it is obligatory for a guardian to repay what he consumes. It means: when you borrow or consume, call witnesses to confirm your debt.’

The sound position is that the expression is general and includes this and other things. What is meant is having witnesses to anything you spend so that if there is a dispute, there can then be clear evidence. Any property which is taken on trust with witnesses is only discharged when there are witnesses to its return, based on the words of Allah. When it was given without witnesses, then there is no need for witnesses as to its return. Allah knows best.

As a guardian must preserve an orphan’s property and make it productive, so he must also care for the child physically. Property is preserved by keeping safe and the body is cared for by teaching. This was discussed in al-Baqarah. It is related that a man asked the Prophet ﷺ, ‘I have an orphan in my care. Can I consume some of his property?’ He answered, ‘Yes, but not in order to enrich yourself or to protect your property with his.’ He said, ‘Messenger of Allah, can I beat him?’ He answered, ‘Only as you would your own child.’ Ibn al-‘Arabī said, ‘It has no confirmed isnād, but there is no one who inclines away from it.’

Allah suffices as a Reckoner.

Allah is a sufficient reckoner of our actions and repays us for them. This is a threat to anyone who refuses to discharge a right. The bā’ is redundant and is in the position of the nominative.

7 Men receive a share of what their parents and relatives leave and women receive a share of what their parents and relatives leave, a fixed share, no matter whether it is a little or a lot.

After mentioning orphans, Allah then deals with inheritance. The āyah was revealed about Aws ibn Thābit al-Anṣārī. He died and left a wife called Umm Kuḥḥah and three daughters by her. Two men, Suwayd and ‘Arfajah, who were the sons of the uncle of the deceased and his executors, came and took his property without giving his wife and daughters anything. In the Jāhiliyyah women and children, even boys, did not inherit. They said, ‘It is only given when someone can fight on horseback, use a spear or a sword and get booty.’ Umm Kuḥḥah mentioned that to the Messenger of Allah ﷺ and he summoned them. They said, ‘Messenger of Allah, her children do not ride a horse, carry a sword nor wound the enemy.’ He said, ‘Leave me until I see what Allah tells me about them.’ Then this was revealed to refute them, invalidate their statement and remove their ignorance. Young heirs are more entitled to the property than adults since they are unable to transact and attend to their own affairs and so the ruling was reversed and the assumptions of the two men refuted. They erred in their ideas and conduct.

Our scholars say that there are three benefits in this āyah. One is clarification of the cause of inheritance, which is kinship. The second is the general nature of kinship, close and distant. The third is the general statement about the obligatory shares, which is further clarified in the Āyat of Inheritance. This āyah prepares the way for the ruling and nullifies the false view.

It is confirmed that when Abū Talḥah gave his property at Bayruḥā’ as ṣadaqah and mentioned that to the Prophet ﷺ, he told him, ‘Give it to your poor relatives,’ and he gave it to Ḥassān and Ubayy. Anas said, ‘They were closer to him than me.’ Abū Dāwud said that he heard Muḥammad ibn ‘Abdullāh al-Anṣārī say, ‘Abū Talḥah al-Anṣārī was Zayd ibn Sahl ibn al-Aswad ibn Ḥarām ibn ‘Amr ibn Zayd Manāh ibn ‘Amr ibn Mālik ibn an-Najjār. He and Ḥassān ibn Thābit ibn al-Mundhir ibn Ḥarām shared a common great-grandfather: Ḥarām. Ubayy was Ubayy ibn Ka‘b ibn Ways ibn ‘Ubayd ibn Zayd ibn Mu‘āwiyah ibn ‘Amr ibn Mālik ibn an-Najjār.’ Al-Anṣārī said, ‘There were six ancestors between Abū Talḥah and Ubayy.’ He said that ‘Amr ibn Mālik was a common ancestor of Ḥassān, Ubayy ibn Ka‘b and Abū Talḥah. Abū ‘Umar said, ‘This demands that kinship goes as far as this level. What is closer than that is even more properly referred to as kinship.

a fixed share, no matter whether it is a little or a lot.

Allah affirmed that daughters have a share in inheritance but did not specify how much. So the Prophet ﷺ sent word to Suwayd and ‘Arfajah not to divide up the property of Aws. Allah had allotted Aws’s daughters a share but had not revealed the amount. So they were to wait until Allah revealed that. When āyahs 11-13 were revealed, he told them, ‘Give Umm Kuḥḥah an eighth of what Aws left and give his daughters two-thirds and you have the rest.’

Our scholars use this as evidence for including in the division things which would be altered by the shares such as bath-houses, threshing floors and houses, whose benefits would be nullified if the shares in them were confirmed. Mālik said, ‘They are divided, even if none of them has a useful share since Allah says: “a fixed share, no matter whether it is a little or a lot.”’ That is the position of Ibn Kinānah, and ash-Shāfi‘ī states that and it is similar to the position of Abu Ḥanīfah. Abu Ḥanīfah said about a small house shared between two people, when one of them asks for the division and his fellow inheritor refuses, that it is divided.’

Ibn Abī Laylā said, ‘If there are those whose share is not useful, there is no division.’ Any division which causes harm to one person rather than another is not executed. That is the position of Abū Thawr. Ibn al-Mundhir said that is the sounder of the two views. Ibn al-‘Arabī mentioned this as being related by Ibn al-Qāsim from Mālik. Ibn al-Qāsim said, ‘I think that houses, dwellings and bath-houses that cannot be divided up, and other things whose division would cause harm and are not used when divided, should be sold and there is no pre-emption in it since the Prophet ﷺ said, “There is pre-emption in all undemarcated property. When there are clear boundaries, there is no pre-emption.”’ This is the evidence provided by the hadith.

Part of the argument for this position is what ad-Dāraquṭnī reports from Ibn Jurayj from Siddīq ibn Mūsā from Muḥammad ibn Abī Bakr from his father, Abū Bakr, that the Prophet ﷺ said, ‘There is no division for the people of inheritance except in respect of things that will support division.’ Abū ‘Ubayd said, ‘This is when a man dies and leaves something which, if divided among his heirs, will entail harm to all or some.’ He said that such things are not divided. Examples might be a gem, a bath-house, a shawl and similar things. Allah says: ‘…making sure that no one’s rights are prejudiced.’ (4:12) So He rejects causing harm. Similarly the Prophet ﷺ said, ‘There is no harm nor repayment of harm.’

While the āyah does not specify division, it does insist on the obligation of the share and portion to both adult and child, whether it is a little or a lot, to refute the practice of the Jāhiliyyah. Allah says: ‘Men have a portion’ and ‘women have a portion’ (4:32), and this is very clear. Extracting the portion is based on another argument, and that is that the heir says, ‘I am entitled to a share by the words of Allah, so give it to me.’ His co-inheritor says, ‘As for it belonging only to you, that is not possible because that would lead to harm to both you and me by destroying the property, changing its condition and lowering its value.’ So something else is preferred [in this instance]. What is most apparent is that the [physical division to obtain the] share is cancelled when doing so would invalidate benefit and depreciate the value of property. Allah is the One Who grants success.

‘A fixed share’ is similar to the words, ‘a mandatory portion’ and ‘necessary right’. It is a noun with the meaning of a verbal noun which is why it is in the accusative. Az-Zajjāj said that it is in the accusative for the ḥāl and means: ‘Those have shares in the obligatory dividing up.’ Al-Akhfash said, ‘Allah appoints that as a share for them.’ Mafrūḍ is decreed and mandatory.

8 If other relatives or orphans or poor people attend the sharing-out, provide for them out of it and speak to them correctly and courteously.

Allah makes it clear here that if someone not entitled to any inheritance attends the division, and is a relative, orphan, or poor person who does not inherit, they should be honoured and not deprived if there is a lot of wealth, and given an apology if it is land or only a little which does not allow for gifts. There is, however, a great reward for a gift from a little, one dirham takes precedence over 100,000.

The āyah, according to this position, is one of judgment. Ibn ‘Abbās said that, and a group of the Tābi‘ūn followed his opinion: ‘Urwah ibn az-Zubayr and others. Abū Mūsā al-Ash‘arī commanded it. It is related from Ibn ‘Abbās that it is abrogated by the words of Allah: ‘Allah instructs you regarding your children: A male receives the same as the share of two females.’ (4:11) Sa‘īd ibn al-Musayyab said that it was abrogated by the Āyat of Inheritance and bequest. Among those who said that it was abrogated were Abū Mālik, ‘Ikrimah and aḍ-Ḍaḥḥāk.

The first is sounder. It explains the entitlement of heirs to their shares and recommends sharing with those who are present who have no share. Ibn Jubayr said, ‘People waste this āyah.’ Al-Ḥasan said, ‘Rather people are avaricious.’ In al-Bukhārī Ibn ‘Abbās says about this āyah: ‘It is one of judgment and not abrogated.’ One variant has: ‘Some people claim that this āyah is abrogated. No, by Allah, its not abrogated! But it is one of the things that are made light of.’

There are two categories of guardians (walī): those who inherit, and those are the ones who give, and those who do not, and this is the one who speaks correctly and says, ‘I do not have anything to give you.’

Ibn ‘Abbās said, ‘During the division to heirs, the believers are commanded to give to relatives, orphans and poor from the bequest. If there is no bequest, they are given to from the inheritance.’ An-Naḥḥās said, ‘This is the best of what is said about the āyah: that it is recommendation and encouragement to do good and to thank Allah.’

One group said, ‘This giving is mandatory as an obligation. The heirs should give to these categories what they are happy to give, such as tools, used garments and small things.’ Ibn ‘Aṭiyyah and al-Qushayrī related this position. The sound position is, however, that it is recommended because, if it had been an obligation, it would be an entitlement to what is left and the sharing out of the legacy would be by one aspect that is known and another that is unknown, and that is contrary to wisdom and would cause division and dissension.

One party believes that those addressed by the āyah are those who divide their property in a will, not the heirs. That is related from Ibn ‘Abbās, Sa‘īd ibn al-Musayyab and Ibn Zayd. If a sick person wants to divide his property by a will, and there are those present who do not inherit, he should not deprive them. This, and Allah knows best, was revealed when a will was obligatory and the āyah of inheritance had not yet been revealed. The sound view is the first one. It is relied on.

When the heir is a child who is not able to dispose of his property, one group say that the guardian of the child should give some of the property as is fitting. It is said that he should not give but should say to those who are present, ‘I cannot do anything with this property. It belongs to an orphan. When he comes of age, inform him of your right.’ This is the commonly accepted position, and this is also when the testator does not make any bequest to him. If he does make a bequest, then he is given what he left him.

‘Abīdah and Muhammad ibn Sirin thought that the providing referred to in this āyah means to prepare food for them to eat, and they did that by slaughtering a sheep from the estate. ‘Abīdah said, ‘If it had not been for this āyah, I would have done this from my own property.’ Qatādah reported that Yaḥyā ibn Ya‘mar said, ‘Three verses of judgment have been abandoned by people. This āyah, the āyah of asking permission before entering: “O you who believe! Those you own as slaves should ask your permission…” (24:58), and the instruction in: “O mankind! We created you from a male and female…”(49:13)’

The pronoun in ‘out of it (minhu)’ refers to the division (qismah) since it has the meaning of property and inheritance. We also see it in the phrase ‘produced it (hā) from his brother’s bag’ (12:76), in reference to ṣuwā‘ (goblet) which is masculine. Another example of that usage is seen in the words of the Prophet ﷺ, ‘Fear the supplication (da‘wah) of the wronged. There is no veil between it (baynahu) and Allah.’ So it is in the masculine with the meaning of ‘du‘ā’’. That is also like his words ﷺ to Suwayd ibn Ṭāriq al-Ju‘fī when he asked him about wine, ‘It is not a remedy, but rather an illness,’ and he repeated the pronoun meaning an alcoholic drink. There are many examples of this.

The verb for ‘share out’ is qāsama, taqāsama and iqtasama. The noun is qismah which is feminine, and qasm is the verbal noun. ‘I divided (qasamtu) and the thing was divided (inqasama). The place is maqsim, like majlis. Time divided them (taqassama) and so they were divided (taqassamū). Taqsīm is separation. Allah knows best.

Speak to them correctly and courteously.

Sa‘īd ibn Jubayr said that what should be said is, ‘Take, may you be blessed in it.’ It is said to be that a person says when they give, ‘I wish it could be more.’ It is said that there is no need for an excuse when giving, but if the distributor does not give anything to them, he should speak courteously and offer some excuse.

9 People should show concern in the same way that they would fear for small children if they were to die leaving them behind. They should have taqwā of Allah and say words that are appropriate.

People should show concern in the same way that they would fear for small children if they were to die leaving them behind.

The alif is omitted from ‘show concern’ (wa-l-yakhsha) to indicate the imperative. Sībawayh said that it is not permitted to imply the imperative lām, based on analogy with the genitive particles except for the demands of poetry. The Kufans permit it. [POEM] The object of yakhsha is elided since the words indicate it. ‘Fear’ is the apodosis of ‘law’ and implies: ‘If they would leave them behind, they would fear.’ It is permitted to elide the lām in the apodosis of ‘law’.

Scholars disagree about the interpretation of this āyah. One group say that this is admonition to guardians, meaning ‘Behave towards orphans as you would want your children to be treated after your death.’ Ibn ‘Abbās said that. This is why Allah says: ‘People who consume the property of orphans wrongfully…’ (4:10)

Another group say that what is meant is all people. They are commanded to fear Allah in dealing with orphans and other people’s children, even if they are not in their care. This instruction is reinforced by calling their attention to the way each of them would want his child to be treated after his death. Related to this is what ash-Shaybānī said: ‘We were at Constantinople with the army of Maslamah ibn ‘Abd al-Malik, and one day we sat in a group of the people of knowledge, including Ibn ad-Daylamī. We discussed the terrors at the end of time and I said to him, “Abū Bishr! I do not want to have a child.” He said to me, “It is not up to you. There is no soul which Allah has decreed will emerge from a man but that it will emerge, whether he wants that or not. But if you want to be reassured about them, fear Allah in the way you treat others.”’ Then he recited the āyah. One variant has: ‘Shall I direct you to something by doing which Allah will deliver you from it, and if you leave a child or children, Allah will preserve them for you?’ ‘Yes, indeed!’ was the reply, and he recited this āyah.

This understanding is related by Muḥammad ibn Ka‘b al-Quraẓī from Abū Hurayrah who said that the Prophet ﷺ said, ‘Whoever gives good ṣadaqah will cross the Sirāṭ. If anyone looks after the needs of a widow, Allah will replace him in those he leaves behind.’

A third position is taken by a group of commentators. This is when those present with a man who is dying at the time he is making his will say, ‘Allah will provide for your child. Look to yourself. Bequeath your property in the Way of Allah. Give ṣadaqah and set slaves free,’ until he has given the bulk of his property away, and that harms his heirs. People were forbidden to do that. So it is as if the āyah was saying to them, ‘As you would fear for your heirs and descendants after you, so fear for the heirs of others and do not impel someone to squander his property.’ Ibn ‘Abbās, Qatādah, as-Suddī, Ibn Jubayr, aḍ-Ḍaḥḥak and Jubayr said this. Sa‘īd ibn Jubayr related that Ibn ‘Abbās said, ‘When a man attends the making of a will, he should not say, “Will away your property. Allah will provide for your child.” Rather he should say, “Advance for yourself and leave something for your child.” That is the import of Allah’s words: “They should have taqwā of Allah.”’

Miqsam and Ḥaḍramī said, ‘It was revealed about the opposite of this. It is that those present tell the dying person, “Keep it for your heirs and leave it to your children. There is no one more entitled to your property than your children.” They prevent him from making bequests, and that harms relatives and those entitled to a bequest. They are told, “As you fear for your descendants and want people to be good to them, so speak correctly to the poor and orphans and fear Allah in respect of harming them.”’

Both these last two views are based on the time when making a will was obligatory before the Āyat of Inheritance was revealed, as Sa‘īd ibn Jubayr and Ibn al-Musayyab said. Ibn ‘Aṭiyyah said, ‘These two views are not mutually exclusive. Rather people fall into two categories. One view is proper for one of them and the other view for the second category. That is that if a man is leaving his heirs independently wealthy, then it is good to recommend him to make bequests and it is possible for him to send ahead [as sadaqa] something for himself. But if he is leaving weak, neglected, poor heirs, then it is good to recommend that he leave what he has to them and be cautious. His reward in doing that is like his reward in respect of giving to the poor. What one takes account of is weakness and one must make it one’s guiding principle.’

This distinction is sound since the Prophet ﷺ said to Sa‘d, ‘It is better for you to leave your heirs wealthy than to leave them poor and dependent on people.’ If someone has no children, or he is independently wealthy, inheriting his wealth from his father, then he is its trustee. In such a case, when a person has old wealth in his possession such that he will not spend it on those after him in a proper manner, then it is a burden for him.

and say words that are appropriate.

‘Appropriate’ (sadīd) means ‘just and correct words.’ This means: ‘Direct the ill person to pay the obligatory dues from his property and then to will to his relatives an amount which will not harm his young heirs.’ It is said that it means: Speak fair words to the dying, which entails instructing them to say, ‘There is no god but Allah.’ You do not command him to say that, but say it yourself in such a way that the person can hear it. The Prophet ﷺ said, ‘Encourage your dying to say: “There is no god but Allah.”’ He did not say, ‘Command them’ because such a command might anger the person, making him refuse. It is said that what is meant is the orphan: ‘Do not chide him or make light of him.’

10 People who consume the property of orphans wrongfully consume nothing in their bellies except fire. They will roast in a Searing Blaze.

People who consume the property of orphans wrongfully

It is related that this was revealed about a man of Ghaṭafān called Mirthad ibn Zayd. He was in charge of the property of his nephew, who was an orphan, and consumed it. Then Allah revealed this about him. Muqātal ibn Ḥayyān said that. That is why a group said that what is meant here are trustees who consume what they are not permitted to consume of the property of orphans in their care. Ibn Zayd said, ‘It was revealed about the unbelievers who did not allow women or children to inherit.’

Consuming in all its aspects is called ‘eating’ because it uses property up, and ‘bellies’ are mentioned to make their wrongdoing clear and show the ugliness of doing this which is contrary to noble character. What is consumed is called fire because that is what it leads to. That usage is the same as that found in Allah’s words: ‘I dreamt that I was pressing wine’ (12:36) which means, in this context, grapes. It is said that ‘fire’ means ‘the unlawful’ here because the unlawful makes the Fire mandatory. That is why Allah called it this.

Abū Sa‘īd al-Khudrī said, ‘The Prophet ﷺ related about his Night Journey, “I saw some people with lips like those of camels. Someone would take hold of their lips and put a rock of fire in their mouths which then emerged from their rear. I asked, ‘Jibrīl, who are they?’ He replied, ‘They are those who wrongfullly consumed the property of orphans.’”’

The Book and Sunnah indicate that consuming the property of orphans is one of the major wrong actions. The Prophet ﷺ said, ‘Avoid the seven deadly ones,’ and he mentioned consuming orphans’ property among them.

They will roast in a Searing Blaze.

Ibn ‘Āmir and ‘Āṣim in the transmission of Ibn ‘Abbās recited ‘sa-yuṣlana’ in the passive instead of ‘sa-yaṣlana’ from the verb aṣlā, to roast. Allah says: ‘I will roast (sa-uṣlīhi) him in Saqar.’ (74:26) Abū Ḥaywah recited ‘sa-yuṣallawna’ in Form II as we see in 69:31. That can mean time after time. Taṣallā is to warm with fire. A poet said:

You warmed the heat of their war as someone chilled is warmed from the cold

The rest recite ‘sa-yaṣlana’ from ṣalā with the nouns ṣallā and ṣilā’. Allah says: ‘in which only the most wretched with roast.’ (92:15) Ṣalā’ is to heat by proximity to the fire or actually bring in direct contact with it. Sa‘īr are burning coals.

This is one of the āyahs of threat but there is no evidence in it for anyone who says that wrong actions make someone an unbeliever. What the people of the Sunnah believe is that the threat will be carried out on some rebellious Muslims who will be burned and die, as opposed to the people of the Fire who do not die and do not live. This seems to be an attempt to combine the Book and the Sunnah since there is some disparity. By His will Allah will remove from the Fire whomever He wills. Allah says: ‘Allah does not forgive partners being attributed to Him but He forgives whomever He wills for anything apart from that.’ (4:47) That is the upshot with everything said to you on this theme.

Muslim related in his Ṣaḥīḥ from Abū Hurayrah that the Messenger of Allah ﷺ said, ‘As for the people of the Fire who are truly its people, they will not die in it or live, but some people will be burned by the Fire for their wrong actions (or errors). Allah will make them die until they are charcoal and then permission for intercession will be granted. They will be brought in groups and cast up on the banks of the rivers of the Garden. Then it will be said, “People of the Garden, pour on them!” They will pour [water] on them and they will grow like seeds grow in what is carried by the flood.” A man from among the people said, ‘It seems that the Messenger of Allah ﷺ has herded animals in the desert.’

11 Allah instructs you regarding your children: A male receives the same as the share of two females. If there are more than two daughters they receive two-thirds of what you leave. If she is one on her own she receives a half. Each of your parents receives a sixth of what you leave if you have children. If you are childless and your heirs are your parents your mother receives a third. If you have brothers or sisters your mother receives a sixth, after any bequest you make or any debts. With regard to your fathers and your sons, you do not know which of them is going to benefit you more. These are obligatory shares from Allah. Allah is All-Knowing, All-Wise. 12 You receive half of what your wives leave if they are childless. If they have children you receive a quarter of what they leave after any bequest they make or any debts. They receive a quarter of what you leave if you are childless. If you have children they receive an eighth of what you leave after any bequest you make or any debts. If a man or woman has no direct heirs, but has a brother or sister, each of them receives a sixth. If there are more than that they share in a third after any bequest you make or any debts, making sure that no one’s rights are prejudiced. This is an instruction from Allah. Allah is All-Knowing, All-Forbearing. 13 These are Allah’s limits. As for those who obey Allah and His Messenger, We will admit them into Gardens with rivers flowing under them, remaining in them timelessly, for ever. That is the Great Victory. 14 As for those who disobey Allah and His Messenger and overstep His limits, We will admit them into a Fire, remaining in it timelessly, for ever. They will have a humiliating punishment.

Allah instructs you regarding your children:

In this āyah Allah clarifies what is undefined in His words: ‘Men have a portion…’ (4:32) This indicates that it is permitted to delay clarification of a matter beyond the moment of the question about it. This āyah is one of the pillars of the dīn and underpinnings of judgments and one of the matrix āyahs of the Qur’an. Shares of inheritance are so important that they constitute a third or a half of knowledge. It is the first knowledge which will be taken from people and forgotten. Ad-Dāraquṭnī reported from Abū Hurayrah that the Prophet ﷺ said, ‘Learn the shares of inheritance and teach them to people. It is half of knowledge and the first thing which will be forgotten. It is the first thing which will be removed from my community.’ He also related from ‘Abdullāh ibn Mas‘ūd that the Messenger of Allah ﷺ said, ‘Learn the Qur’an and teach it to people. Learn the shares of inheritance and teach them to people. Learn knowledge and teach it to people. I am a man who will be taken. Knowledge will be taken and seditions will appear. It will be such that two will dispute their share and not find anyone to decide between them.’

This being confirmed, know that the knowledge of shares of inheritance constituted the bulk of the knowledge of the Companions and was an important topic of discussion, but people have lost it. Muṭarrif related from Mālik that ‘Abdullāh ibn Mas‘ūd said, ‘If someone does not learn the shares, divorce and ḥajj, how does he differ from the people of the desert?’ Ibn Wahb reported that Mālik said, ‘I heard Rabī‘ah say, “If someone learns the shares of inheritance without learning them from the Qur’an, he is quick to forget them.”’ Mālik added, ‘He spoke the truth.’ Abū Dāwūd and ad-Dāraquṭnī related from ‘Abdullāh ibn ‘Amr ibn al-‘Āṣ that the Messenger of Allah ﷺ said, ‘Knowledge consists of three things, and what is other than them is extra: an āyah of judgment, a confirmed sunnah and a just share.’ Abū Sulaymān al-Khaṭṭābī said, ‘The āyah of judgment is the Book of Allah, and mastery is stipulated in it because some āyahs are abrogated and not acted on and one must act on what supersedes them. A confirmed sunnah is what is established as coming from the Messenger of Allah ﷺ. A just share can be interpreted in two ways. One is that someone is just in the division and fair in the portions and shares mentioned in the Book and Sunnah. The other is that it is derived from the Book and Sunnah and what is like them.’

‘Ikrimah related: ‘Ibn ‘Abbās sent to Zayd ibn Thābit to ask him about a woman who died leaving a husband and parents. He said, “The husband receives half, and the mother has a third of what is left.” He asked, “Do you find it in the Book or is that your opinion?” He replied, “It is my opinion. I do not prefer a mother to a father.”’ Abū Sulaymān said, ‘This is part of balancing the share when there is no text concerning it. It is based on the interpretation of the text: “If your heirs are your parents, your mother receives a third.” When the share of a mother is a third, the rest, which is two-thirds, goes to the father. The half left of the property after the husband’s share is analogous to property when there is no child or anyone with a share along with the parents. So the remaining half is divided into three: one share for the mother and two shares for the father. This is a fairer division than giving the mother a third of all the property and the father what remains, which is a sixth, thereby preferring her to him, which is not the basic rule in inheritance. It is fairer than what Ibn ‘Abbās believed about giving a full third to the mother and thereby diminishing the right of the father to a sixth. Most fuqahā’ abandon his position for that of Zayd.’

Abū ‘Umar said, ‘‘Abdullāh ibn ‘Abbās said about a case when there is a husband and both parents that the husband receives a half, the mother a third of the total and the father receives the rest. He said that in the case where there is a wife and both parents that the wife receives a quarter, the mother a third of the total and the father receives the rest. This was the position of Qāḍī Shurayḥ, Muḥammad ibn Sīrīn and Dāwud ibn ‘Alī, and a group, including Abu-l-Ḥasan Muḥammad ibn ‘Abdullāh al-Faraḍī al-Miṣrī, known as Ibn al-Labbān, about both cases. He claimed that it is analogous to the view of ‘Alī about a mushtarikah case. He said elsewhere that he related it from ‘Alī.’

Abū ‘Umar said, ‘What is well known and famous from ‘Alī, Zayd, ‘Abdullāh and the rest of the Companions and most scholars is what Mālik wrote. Part of their argument against Ibn ‘Abbās is that when the parents are among the heirs, others do not share with them. The mother has a third and the father two-thirds. That is the same when they share in the half left by a husband: she has a third and he has two-thirds of it. This is sound in investigation and analogy.’

There are various transmissions about the reason for the revelation of the Āyah of Shares of Inheritance. At-Tirmidhī, Abū Dāwūd, Ibn Mājah, and ad-Dāraquṭnī reported from Jābir ibn ‘Abdullāh that the wife of Sa‘d ibn ar-Rabī‘ said, ‘Messenger of Allah, Sa‘d has died and left two daughters and a brother. His brother came and took what Sa‘d left. Women are married on account of their property.’ He did not answer her in that gathering. Then she came to him and said, ‘Messenger of Allah, what about the daughters of Sa‘d?’ He said, ‘Summon his brother to me.’ He came to him and the Prophet ﷺ told him, ‘Give his daughters two-thirds, his wife an eighth, and you have the rest.’ That is how Abū Dāwud has it. At-Tirmidhī and others have: ‘The Āyah of Inheritance was revealed,’ and he said that this is a sound hadith.

Jābir also reports, ‘The Messenger of Allah ﷺ and Abū Bakr came walking to visit me among the Banū Salimah when I was ill and unconscious. He ﷺ performed wuḍū’ and then poured his wuḍū’ water over me. I regained consciousness and said, “Messenger of Allah, who will inherit from me as I have no direct heirs?” Then the Āyahs of the Shares of Inheritance were revealed.’ It is in the Ṣaḥīḥ Collections. At-Tirmidhī transmitted it and has in it: ‘I said, “Prophet of Allah, how should I distribute my wealth among my children?” He did not give me any answer at all. Then it was revealed: “Allah instructs you regarding your children…”’ He said that it is a sound ḥasan hadith.

We find in al-Bukhārī from Ibn ‘Abbās that the āyah was revealed concerning the property of children and the bequest to the parents. That was abrogated by these āyahs. Muqātil and al-Kalbī said that it was revealed about Umm Kuḥḥah, as we mentioned earlier. As-Suddī said that it was revealed because of the daughter of ‘Abd ar-Raḥmān ibn Thābit, the brother of Ḥassān ibn Thābit. It is said that in the Jāhiliyyah they only allowed those who could fight in battle to inherit and then this was revealed to make it clear that every child and old person had a share. It may have been an answer to all the cases mentioned which is why its revelation was delayed. Allah knows best.

Aṭ-Ṭabarī said, ‘There are some traditions related about not allowing children to inherit, which remained at the beginning of Islam until they were abrogated by this āyah. We do not believe that that was part of the Sharī‘ah. Indeed, the opposite is established. This āyah was revealed about the heirs of Sa‘d ibn ar-Rabī‘ or the heirs of Thābit ibn Qays ibn Shammās. The first is sounder according to the people of transmission. The Messenger of Allah ﷺ cancelled inheritance for the paternal uncle. If that had been confirmed before in our Sharī‘ah, he would not have cancelled it. It was also not confirmed in our Sharīah that a child was not given a share until he could fight on horseback and defend the tribe.’

That is what Qāḍī Abū Bakr ibn al-‘Arabī said: ‘The revelation of this āyah indicates that it was based on something new. In the beginning of Islam, there was no law based on how property was inherited in the Jāhiliyyah. It was silent about it which amounts to affirmation because if there had been a confirmed law about it, then the Prophet ﷺ would not have judged that the uncle of the two girls had to return any of their property because, when rulings have been delivered and then abrogation comes afterwards, that has an effect in the future and does not undo what happened in the past. Injustice was removed.’

The Shāfi‘īs say that the words of Allah: ‘Allah instructs you regarding your children…’ is literally about children. As for the grandchildren, they are included by extension. When someone swears that he has no children and he does have a grandchild, he does not break his oath. When he makes a bequest to a certain child, that does not include that child’s child. Abū Ḥanīfah said that the grandchild is included when the child no longer exists.

Ibn al-Mundhir said that according to the literal meaning of the āyah, it would give obligatory inheritance rights to all children, believers or unbelievers. It is confirmed that the Messenger of Allah ﷺ said, ‘An unbeliever does not inherit from a Muslim.’ It is known that it means only some children because a Muslim does not inherit from an unbeliever or vice versa based on the literal meaning of the hadith.

When Allah says: ‘your children,’ He includes in that captives in the hands of the unbelievers. They inherit as long as they are known to be Muslim and alive. That is the position of all the people of knowledge except an-Nakha‘ī who says that captives do not inherit. If someone is not known to be alive, their ruling is that of someone absent. The legacy of the Prophet ﷺ is not included in the generality because he said, ‘We do not leave inheritance. What we leave is ṣadaqah.’ That will be explained in Sūrat Maryam, Allah willing. Similarly, the ruling does not include someone who murders his father, grandfather, brother or uncle by the consensus of the Community. A murderer does not inherit anything from the property of the one he killed nor any of his blood-money as was explained in al-Baqarah.

If the killing is accidental, the killer does not inherit from the blood-money, but does inherit from the estate, according to Mālik, but not according to ash-Shāfi‘ī, Aḥmad, Sufyān and the People of Opinion as already explained in al-Baqarah. The position of Mālik is sounder. That is the position of Isḥāq and Abū Thawr as well as Sa‘īd ibn al-Musayyab, ‘Aṭā’ ibn Rabāḥ, Mujāhid, az-Zuhrī, al-Awzā‘ī, and Ibn al-Mundhir, because the inheritance of the heir is confirmed by Allah in His Book and there is no exception to it except by Sunnah or consensus. Any disagreement regarding it is referred to the apparent meaning of the āyahs which deal with inheritance.

Know that in the beginning of Islam entitlement to inheritance came by various means, among them alliance, emigration and treaty. Then all that was abrogated in this sūrah when Allah says: ‘We have appointed heirs for everything.’ (4:33)

Scholars agree that when there is someone who has a fixed share along with the children of the deceased person, he is given it. In respect of the rest of the property a male has the portion of two females since the Prophet ﷺ said, ‘Give the shares to their people.’ This means the shares designated in the Book of Allah, which are six: a half, a quarter, an eighth, two-thirds, a third and a sixth. Five have a half share: the daughter, son’s daughter, full sister, paternal sister and husband. All of that is when they have no one to exclude them. A quarter is for the husband when there is exclusion, and for wives when there is no exclusion. An eighth is for wives when there is exclusion. Four have two-thirds: two or more daughters, a son’s daughters, full sisters or paternal sisters. All of that is when there is no exclusion.

A third is for the mother when there are no children or the children of the son, and fewer than two or more brothers and sisters, and for two or more the mother’s children. This is a third of the total property. As for the third of what remains, that is for the mother in the case of a spouse and both parents. The mother has a third of what remains, as has already been explained. In the case of a grandfather when there are brothers, when there is someone with a share with them, he has a third of what remains. Seven have a sixth: parents and a grandfather when there is a child and grandchild, grandmother, or grandmothers when there are more than one, granddaughters by a son when there is a daughter, paternal sisters when there are full sisters, and a child, male or female, of the mother. All these shares are taken from the Book of Allah except for the grandmother which is taken from the Sunnah.

There are three things which make these shares obligatory: established lineage, contracted marriage, and the walā’ of emancipation. The three can be combined, as when someone is the husband of a woman, her emancipator (mawlā) and a son of her paternal uncle. There can also be only two of them, as when someone is a woman’s husband and her emancipator (mawlā), or her husband and the son of her paternal uncle. Then he inherits by two paths and has all the property if he is the only heir: half by being her husband and half on the basis of the walā’ or by lineage. A similar case is when a woman is a man’s daughter and his emancipator (mawlā); she also receives all of the estate when she is the only heir: half by lineage and half by the walā’.

Inheritance only takes place after any debts have been paid and any bequests made. When someone dies, specific rights are paid from his estate, then what is needed for his shroud and burial, then his debts in order, then the third for bequests and what is like that in order, and the rest is inheritance for the heirs, who are seventeen in total. Ten are men: son, grandson – however far removed – father, grandfather – however far removed – brother, brother’s son, paternal uncle, and his son, husband, and male mawla. The seven women are: daughter, son’s daughter – however far removed – mother, grandmother – however far removed – sister, wife, and female mawla. An excellent man put them in order, saying:

If you want to count all the heirs, both male and female, They are ten men and seven women.

I have counted them in order: the son, the son’s son, the paternal uncle’s son, The father who is in the rank, the grandfather, before the close brother,

The son of the closest brother, indeed, the uncle, the husband, the mawla and then the mother.

The son’s daughter after her, the daughter, the wife, the grandmother

and the sister. And the female mawla. Take that number exactly.

‘Your children’ includes all your children, whether present or in the womb, near or far removed, male and female, except for unbelievers. Some say that it is actually about the near, and by extension about the far removed. Some say that it is actually about all of them because it comes from ‘birth’, although they inherit according to nearness. Allah says: ‘O sons of Ādam’ (7:26) and the Prophet ﷺ said, ‘I am the master of the sons of Ādam.’ He ﷺ also said, ‘Sons of Ismā‘īl, shoot! Your father was an archer.’

However, it is generally applied to those who are specifically close to one in reality. If there is a direct male child, then the son’s son gets nothing. This is agreed on by the people of knowledge. If there is no male child, but there are male grandchildren, one begins with the actual daughters and they are given the two-thirds and then the remaining third is given to the grandchildren if they are equal in closeness to the deceased, or if the male is further removed than the daughters, since the male has the share of two females. This is the position of Mālik, ash-Shāfi‘ī, and the People of Opinion. It is stated by the majority of the people of knowledge among the Companions, Tābi‘ūn and those after them except for something which is related from Ibn Mas‘ūd who said that if there is a male grandchild opposite a granddaughter, he precludes her. If he is further away in lineage, he does not. In that he took account of the words of Allah: ‘If there are more than two daughters they receive two-thirds of what you leave.’ Even if there are many, He did not assign them more than two-thirds.

Ibn al-‘Arabī also gave an opinion based on this distinction from Ibn Mas‘ūd. Ibn al-Mundhir and al-Bājī mentioned that he said that what is left after the daughters inherit goes to the sons of the son rather than the daughters of the son, and there is no distinction. Ibn al-Mundhir related it from Abū Thawr. Abū ‘Umar related the like of it and said, ‘Ibn Mas‘ūd disagreed with that and said, ‘When daughters take the two-thirds, the remaining third goes to the sons of the son rather than their sisters and rather than those closer and further than them of the daughters of the son.’ This is the position of Abū Thawr and Dāwud ibn ‘Alī. The like of it is related from ‘Alqamah. The argument of those who take this position is found in the hadith of Ibn ‘Abbās who reported that the Prophet ﷺ said, ‘Divide the property between the people of obligatory shares according to the Book of Allah. What remains of the shares goes to the closest male relative.’ Al-Bukhārī, Muslim and others transmitted it.

Part of the majority argument are the words of Allah: ‘Allah instructs you regarding your children: a male receives the same as the share of two females’ because the child of a child is also considered a child. From the standpoint of reflection and analogy, whoever is deemed to be ‘aṣabah in his degree in respect of the entire property must also be ‘aṣabah in any excess property, like immediate children. Therefore, it is mandatory that the son’s son shares with the son of his sister, as the direct son shares with his sister. As for the argument of Abū Thawr and Dāwud that as the son’s daughter does not inherit anything of the excess after the two-thirds, she is alone and so her brother does not make her one of the ‘aṣabah, the answer is that when her brother is with her, she is strengthened by him and becomes one of the ‘aṣabah with him. The apparent meaning of: ‘Allah instructs you regarding your children’ is that she is one of the children.

If there are more than two daughters they receive two-thirds of what you leave.

Allah obliged a half share for one daughter, and two-thirds for more than two, and so, if there are just two, they are not given a specified share in the Book. Scholars discussed the evidence about whether they are given two-thirds. It is said that this is the consensus but that is rejected because the sound view from Ibn ‘Abbās is that two daughters are given a half because of this āyah. It is said that they are given two-thirds by analogy with two sisters as Allah says at the end of the sūrah: ‘…he has a sister and she has a half of what he leaves’ (4:186) and ‘…if they are two, they have two-thirds of what he leaves.’ So two daughters are connected to two sisters in sharing in two-thirds, and if there are more sisters than two, they are connected to the daughters and share in two-thirds. This is countered by the fact that it is a text about sisters.

It is said that the āyah indicates that two daughters receive two-thirds. That is since when there is one with her brother, she has a third when she is alone, we know that two have two-thirds. This is the position of Qāḍī Ismā‘īl and Abu-l-‘Abbās al-Mubarrad. An-Naḥḥās says that this argument is erroneous because the disagreement is about two daughters, not one. His opponents would say, ‘Then if there are daughters and a son, the daughters receive a half.’ This is evidence that this is their share.

It is said that the word ‘fawq’ (more) is redundant, and the actual meaning is ‘if they are two.’ Grammatically, this is like Allah’s words: ‘Strike (above) the necks’ (6:12), which actually means ‘the necks’ themselves. This position is refuted by an-Naḥḥās and Ibn ‘Aṭiyyah because it is not permitted for prepositions and nouns to be meaningless in Arabic. Ibn ‘Aṭiyyah said, ‘That is because His words, “Strike (above) the necks” is a matter of eloquence and “fawq” here is not redundant. Rather it makes the meaning precise because striking the neck must be above the neck joint and below the brain as Darīd ibn aṣ-Ṣimah said, “Lower than the brain and above the joint. That is how I strike the necks of heroes.”’

The strongest argument for two daughters receiving two-thirds is the sound hadith related about the reason for its revelation. The dialect of the people of the Hijaz and the Banū Asad is thuluth and rubu‘ up to ten. The dialect of the Banū Tamīm and Rabī‘ah is thulth, and so on up to ten. [BIT MORE]

If she is one on her own she receives a half.

Nāfi‘ and the people of Madīnah read the word ‘one’ (wāḥidatun) in the nominative meaning ‘it has happened and occurred’ and so it is a full kāna. [POEM] The rest read it as ‘wāḥidatan’ in the accusative. An-Naḥḥās said that it is a good reading, meaning if she is left [as a sole daughter] or born [as a sole daughter].

If there are daughters of the son with daughters and the daughters are two or more, they exclude the daughters of the son from inheriting because they have no access to inheritance by any share other than that of the two-thirds. If there is no daughter, then the daughter or daughters of the son inherit with the daughter to complete the two-thirds. They take the place of the other daughters, just as the sons of son take the place of the sons in exclusion and inheritance. In the absence of any of them who are entitled to the sixth, it then goes to the son’s daughter. She is more entitled to the sixth than the full sister according to the majority of fuqahā’ among the Companions and Tābi‘ūn, except for what is related from Abū Mūsā and Sulaymān ibn Abī Rabī‘ah that the daughter has a half, the sister the other half, and the son’s daughter nothing.

There is a sound transmission from Abū Mūsā that he retracted that. We find in al-Bukhārī from Ādam from Shu‘bah from Abū Qays that Huzayl ibn Shuraḥbīl said, ‘Abū Mūsā was asked about a daughter, a son’s daughter and a sister. He said, “A daughter receives a half. A sister receives a half. If you go to Ibn Mas‘ūd, he will corroborate me.” Ibn Mas‘ūd was asked and was told of what Abū Mūsā said. He said, “I would then be misguided and not one of the guided. I give the decision which the Prophet ﷺ gave. A daughter has a half and a daughter of a son has a sixth which completes two-thirds, and what is left is for the sister.” Then I went to Abū Mūsā and told him what Ibn Mas‘ud had said, and he said, “Do not ask me as long as this scholar is among you.”’

If there is a son with the son’s daughter or daughters who is at the same level as them or less in the ‘aṣabah, then the second half is shared between them, the male having the share of two females, differing from Ibn Mas‘ūd. Then the immediate daughters, or immediate daughters and sons’ daughters take the full two-thirds. The same is said about full sisters and paternal siblings: the paternal sister and mother have a half, and the rest goes to the brothers and sisters as long as the individual share is not more than a sixth. If it is more than a sixth, then they are given the full two-thirds, but no more than that. Abū Thawr said that.

If a man dies and leaves a pregnant wife, the property is held in hand until the sex of the child is clear. The people of knowledge agree that when a man dies while his wife is pregnant, the child in her womb inherits and is inherited from if it is born alive and cries. They all say that if it is born dead, it does not inherit. If it is born alive and does not cry, one group say that it has no inheritance, even if it moves or sneezes. This is the position of Mālik, al-Qāsim ibn Muḥammad, Ibn Sīrīn, ash-Sha‘bī, az-Zuhrī and Qatādah. Another group said, ‘If life is recognised by movement, crying, suckling, or breathing, then the rulings concerning it follow those of the living.’ That is the view of ash-Shāfi‘ī, Sufyan ath-Thawrī and al-Awzā‘ī. Ibn al-Mundhir said, ‘What ash-Shāfi‘ī said is open to debate although the report in fact precludes it. The Prophet ﷺ said, “There is no child born but that Shayṭān pricks it and so it cries at the prick of Shayṭān except for the son of Maryam and his mother.”’ This is a report, and there is no abrogation in respect of a report.

If one of the children is a hermaphrodite, scholars agree that the inheritance is determined by how the child urinates. If it is like a male, then he receives the inheritance of a male. If it is like a female, then it is the inheritance of a female. Ibn al-Mundhir said that he did not record anything about this from Mālik. Ibn al-Qāsim said that he was too in awe of Mālik to ask him about it. If the individual urinates in both ways, then one considers how urination begins. Sa‘īd ibn al-Musayyab, Aḥmad and Isḥāq said that. That is also related from the People of Opinion. Qatādah related that Sa‘īd ibn al-Musayyab said that a hermaphrodite inherits according to how they urinate, and that if they urinate in both ways, it is according to which manner is first.

If they urinate in both ways at the same time, then it is half that of a male and half that of a female. Ya‘qūb and Muḥammad said that they inherit according to which manner produces the most urine. That is related from al-Awzā‘ī. An-Nu‘mān said, ‘When a baby urinates in both ways together, it is problematic. I do not know which of them predominates.’ It is related that he hesitated about a person when they are like that. It is related that he said, ‘When things are unclear, they are given the smaller of the two shares.’

Yaḥyā ibn Ādam said, ‘When someone urinates like a man and menstruates like a woman, they inherit according to their manner of urination because we find in a tradition, “He inherits according to his urination.”’ Ash-Shāfi‘ī said, ‘When someone urinates from both places and one has no precedence over the other, then they are problematic and receive the inheritance of a female. The rest is held between them and the other heirs until the business is clear or they come to an agreement.’ Abū Thawr said that. Ash-Sha‘bī said, ‘Such a person is given half the inheritance of a male and half that of a female.’ Al-Awzā‘ī said that, and it is the position of the Māliki school.

Ibn Shās said in Jawāhir ath-Thamīnah ‘alā madhhab Mālik ‘ālim al-Madīnah: ‘Someone is considered to be a hermaphrodite when they have two sets of genitals – those of a female and those of a male – and urinate from both. Ruling about them is given on the basis of how they urinate. If they urinate in both ways, then it is more frequent of them. When they are both equal, one considers which starts first. If they both start at the same time, one considers the growth of a beard or size of breasts and whether they are like a woman’s breasts. If someone has both, then one considers their state at puberty. If they menstruate, then the ruling is given based on that. If they only have a wet dream, then the ruling is given based on that. If both exist, then they are problematic. The same is true if someone has no genitalia and nothing specific designating either a male or a female but has a site by which they urinate. In that case one waits until puberty to see if any distinguishing sign appears. If it does not, they are problematic. Then we judge by that and they inherit half the share of a male and half that of a female.’

This is what has been mentioned about the signs of a problematic hermaphrodite. We indicated the sign in al-Baqarah and the beginning of this sūrah: one considers the ribs. That is related from ‘Alī and judgment is given on that basis. One of the excellent scholars wrote some verses on the ruling of the hermaphrodite. They begin:

One considers circumstances: breasts, beard and urination.

He says in it:

If his circumstances are equal and unclear, and signs are ambivalent, Then his share of the inheritance of a relative is six-eighths of a share.

This is what he is entitled to because of the lack of clarity, and there is the abstention that is in it.

He should not marry as long as he lives in this world nor be given in marriage. Then he does not have dependants nor bringing up young as men do.

All that I have mentioned in poetry was stated by the leaders of scholars. Some people refuse to speak about it, and there is no blame in that,

Because of atrocities that may arise in discussion, and clear repulsiveness. The ruling of the pleasing imam, ‘Alī, was already given on it

About if the person is lacking a rib. Men must follow that In inheritance, marriage, iḥrām in ḥajj, prayer and rulings.

If she has a rib more than men, then she is female Because women have a rib more than men. So take advantage of that. It was missing from Ādam before on account of the creation of Ḥawwā’.

This is a true statement. There is evidence for that in what the Messenger, peace be upon him, said.

Abu-l-Walīd ibn Rushd said, ‘Someone problematic in this way may be neither a husband nor a wife, nor a mother nor a father. It is said that they may have children from the womb and children from the back [i.e. sperm].’ Ibn Rushd said, ‘If this is sound, then the person inherits from their son by sperm with the full share of a father and from their son by the womb with the full share of a mother. This is unlikely, and Allah knows best.’ We find in the Sunan of ad-Dāraquṭnī that Abū Hāni’ ‘Umar ibn Bashīr said, ‘‘Āmir ash-Sha‘bī was asked about a child who is neither male nor female who did not have what either a male or female have, and urine and faeces came from his navel. He was asked about its inheritance and ‘Āmir said that it is half the share of a male and half the share of a female.’

Each of your parents receives a sixth of what you leave if you have children.

‘Parents’ here means the parents of the deceased. This alludes to something not mentioned which is permitted linguistically. ‘Sixth’ is in the nominative by the inceptive and what is before it is its predicate. The same is true of ‘third,’ ‘half’, fourth, etc.

The word ‘parents’ is dual: the father and mother (ābah). The expression umm spares the need for ābah. Some Arabs prefer one to the other since it is easy and famous. That is heard in sound names, like calling the parents al-abwān, calling the sun and moon ‘two moons’ and night and day al-malawān. ‘The two ‘Umars’ is used for Abū Bakr and ‘Umar. They make the moon dominate the sun because it is easy to remember and ‘Umar dominate Abū Bakr because ‘Umar ruled for a long time and his time was famous. Whoever claims that it means ‘Umar ibn al-Khaṭṭāb and ‘Umar ibn ‘Abd al-‘Azīz has nothing to stand on because they spoke of ‘the two ‘Umars’ before they saw ‘Umar ibn ‘Abd al-‘Azīz. Ash-Shajarī said that.

The word ‘parents’ does not include grandparents here, however distant, since it is in the dual whereas further descendants are included in the word ‘children’. The fact that the word ‘parents’ is dual means cannot be universal and plural. This is not the case with ‘children’. This is proven by Allah’s words: ‘If you are childless and your heirs are your parents your mother receives a third.’ The grandmother does not receive a third by consensus and so she is definitely not part of this.

There is, however, disagreement about the grandfather. Among those who said that he is a father and excludes the brothers was Abū Bakr aṣ-Ṣiddīq. While he was alive, none of the Companions disagreed with him regarding that. They did disagree after his death. Among those who said that the grandfather was included under the word ‘father’ were Ibn ‘Abbās, ‘Abdullāh ibn az-Zubayr, ‘Ā’ishah, Mu‘ādh ibn Jabal, Ubayy ibn Ka‘b, Abu-d-Dardā’ and Abū Hurayrah. All of them made the grandfather like the father in the father’s absence and made him exclude all brothers who do not inherit anything when he is present. That was the view of ‘Aṭā’, Ṭāwus, al-Ḥasan and Qatādah. Abū Ḥanīfah, Abū Thawr and Isḥāq also believed that. Their argument is found in the words of the Almighty: ‘the religion of your father Ibrāhīm’ (22:78) and ‘O sons of Ādam’ (7:26) as well as the words of the Prophet ﷺ, ‘Shoot, sons of Ismā‘īl. Your father was an archer.’

‘Alī ibn Abī Ṭālib, Zayd and Ibn Mas‘ūd believed that the grandfather inherits with the brothers and there is no decrease in the third with the full brothers or the father except with those with stipulated shares. That is the position of Mālik, al-Awzā‘ī, Abū Yūsuf and ash-Shāfi‘ī. ‘Alī made the brothers and grandfather share in a sixth and the sixth did not reduce any of the obligatory shares of others. That is the position of Ibn Abī Laylā and a group. Scholars agree that the grandfather does not inherit when the father is alive, and the son does not exclude his father. They put the grandfather in the same position as the father in respect of exclusion and inheritance when the deceased does not have a father closer than him.

Most believe that the grandfather cancels brothers in inheritance, except for what is related from ash-Sha‘bī from ‘Alī that he is treated like the sons of the brothers in the division. The argument of the majority is that he is a male who does not make his sister one of the ‘aṣabah and so the grandfather does not have a share like the paternal uncle and son of the paternal uncle.

Ash-Sha‘bī said that the first grandfather to inherit in Islam was ‘Umar ibn al-Khaṭṭāb. A son of ‘Āṣim ibn ‘Umar died, leaving two brothers. ‘Umar wanted to claim his property and consulted ‘Alī and Zayd about that. They told him a parable about it and he said, ‘Were it not that I see that you two agree, I would not think that he was my son nor I was his father.’ Ad-Dāraquṭnī related from Zayd ibn Thābit that ‘Umar ibn al-Khaṭṭāb asked permission to visit him one day and he gave it. His head was in the hand of a girl of his who was combing it. He removed his head and ‘Umar told him, ‘Let her comb you.’ I said, ‘Amīr al-Mu’minīn, if you were to send for me, I would come to you.’ ‘Umar said, ‘I have need of you. I came to you to look into the position of a grandfather.’ Zayd said, ‘No, by Allah! What do you say about it?’ ‘Umar said, ‘There is no revelation so that we could modify it one way or another. It is something based on opinion. If your opinion agrees with me I will follow it. Otherwise there is no going against you in it.’

Zayd refused to give an opinion and ‘Umar left angry, exclaiming, ‘I came to you thinking that you would relieve me!’ Then he went to him again at the same time that he had come to him the first time and kept at him until he said, ‘I will write something for you.’ So he wrote it for him on a piece of hide and he made a parable for him. The parable was a tree which grows on one trunk and branches issue from it. Then the branches produce other branches. The trunk waters the branch. If the first branch is cut off, the water reverts to another branch. If the second branch is cut off, the water reverts to the first. He took it and ‘Umar addressed the people and then read what was written on the piece of hide to them. Then he said, ‘Zayd ibn Thābit has stated a position about the grandfather and I have carried it out.’ He said that ‘Umar was the first grandfather and wanted to take all the property of his son’s son rather than his brothers. So ‘Umar ibn al-Khaṭṭāb divided that.

The people of knowledge agree that the grandmother has a sixth if the deceased has no mother. They agree that a mother excludes both her mother and the father’s mother. They agree that the father does not exclude the mother’s mother. They disagree about the inheritance of the grandmother when her son is alive. Some say that the grandmother does not inherit when her son is alive. That is related from Zayd ibn Thābit, ‘Uthmān and ‘Alī. It was the position of Mālik, ath-Thawrī, al-Awzā‘ī, Abū Thawr and the People of Opinion. One group said, ‘The grandmother inherits with her son.’ That is related from ‘Umar, Ibn Mas‘ūd, ‘Uthmān, ‘Alī and Abū Mūsā al-Ash‘arī, and is the position of Shurayḥ, Jābir ibn Zayd, ‘Ubaydullāh ibn al-Hasan, Shurayk, Aḥmad, Isḥāq and Ibn al-Mundhir. He said, ‘As the grandfather is only excluded by the father, so the grandmother is only excluded by the mother.’ At-Tirmidhī related from ‘Abdullāh about the grandmother with the son that she was the first grandmother to whom the Messenger of Allah ﷺ gave a sixth with her son while her son was alive. Allah knows best.

Scholars disagree about the inheritance of grandmothers. Mālik said only two grandmothers inherit: the mother’s mother and the father’s mother and their mothers. That is what is related by Abū Thawr from ash-Shāfi‘ī, and a group of Tābi‘ūn said that. If there is only one, she has a sixth. If there are more and have the same closeness, the sixth is shared between them. All of this is agreed upon. If the one on the mother’s side is closer, she alone has a sixth. If the one on the father’s side is closer, it is shared between her and the one on the side of the mother, however far removed. Only one grandmother inherits on the mother’s side and the grandmother of the mother of the father does not inherit. This is the position of Zayd ibn Thābit. It is the most confirmed of what is related on that. It is the position of Mālik and the people of Madīnah.

It is said that the grandmothers are also mothers. If there are several, the sixth is for the closer of them, as is the case when there are several fathers [including grandfathers]. The closest of them is the one most entitled to the inheritance. The same hold true for sons, brothers, sons of brothers and sons of uncles when there are several: the closest of them is the most entitled to inherit. Ibn al-Mundhir said, ‘This is the sounder view, and is my position.’

Al-Awzā‘ī makes three grandmothers inherit: one from the mother’s side and two from the father’s side. That is the position of Aḥmad ibn Ḥanbal. Ad-Dāraquṭnī related it from the Prophet ﷺ as mursal. The opposite of that is related from Zayd ibn Thābit: three grandmothers inherit: two from the side of the mother and one from the father. ‘Alī has the same position as Zayd. They both give the sixth to the closest of them, on the side of the mother or father and no one shares with her in it unless they are of the same level of closeness. That is the position of ath-Thawrī, Abū Ḥanīfah and his people, and Abū Thawr.

‘Abdullāh ibn Mas‘ūd and Ibn ‘Abbās, however, make the four grandmothers inherit. That is the position of al-Ḥasan al-Baṣrī, Muḥammad ibn Sīrīn and Jābir ibn Zayd. Ibn al-Mundhir said, ‘Any grandmother connected to the deceased who has a father in her lineage between two mothers does not inherit.’ The position of each of them by the people of knowledge.

Allah allotted a sixth to each of the parents of someone with children, and the male and female child are the same in that respect. If a man dies leaving a son and both parents, each of the parents has a sixth and the rest goes to the son. If he leaves a daughter and two parents, the daughter has half and the parents two-sixths and what remains goes to the ‘aṣabah, the paternal relations, since the Messenger of Allah ﷺ said, ‘What is left of the shares is for the male relatives of a man.’ The father has rights on two sides: paternal lineage and obligatory share.

If you are childless and your heirs are your parents your mother receives a third.

When the parents are the heirs, the mother takes a third, as is indicated by Allah’s words, and the rest, which is two-thirds, goes to the father. It is as when you tell two men, ‘This property is shared between you,’ and then you tell one of them, ‘You have a third of it.’ Your words have stipulated that the other has two-thirds. The strength of His words indicate that that the two are alone among people entitled to shares. There is no disagreement about this. According to this, two-thirds is a share prescribed for the father and not inasmuch as he is ‘aṣabah. Ibn al-‘Arabī mentioned that the point is to prefer the mother with a third in the absence of male children. The mother is confirmed over the share because of kinship.

This is contradictory. That exists when he is alive, so why is he denied the sixth? That which is clear is that a father is denied the sixth while he is alive out of kindness to the child and guarding his property since part of his property may be removed unjustly or that is an act of worship. That is the most appropriate thing to say. Allah is the One Who gives success.

The addition of the wāw in ‘and your heirs’ makes it clear that this is a continuing firm command. The position of the parents when they are the only heirs is like the position of two children: the male receives twice the share of a female. The father has two shares: the normal share and that of ‘aṣabah when he excludes the brothers as the child does. This is a balanced rulings and its wisdom is clear. Allah knows best.

The people of Kufa recite ‘li-immihi’ which is a dialect related by Sībawayh. Al-Kisā’ī said that it is a dialect of many of Hawāzin and Hudhayl. That is because when there is a lām with a kasrah and it is connected to a letter, they dislike having a ḍammah after a kasrah because there is no fi‘ula in words. If someone has a ḍammah, he takes the root. It is also because the lām is separate and added to the noun. An-Naḥḥās said all of that.

If you have brothers or sisters your mother receives a sixth,

Brothers reduce the share of the mother from a third to a sixth. This is partial exclusion, whether the brothers are full or half brothers. They have no share. It is related from Ibn ‘Abbās that the sixth which the brothers exclude the mother from is for the brothers. He also related the like of the position of the people that it is for the father. Qatādah said that the father takes it rather than them because he provides for them and attends to their marriage and maintenance.

The people of knowledge agree that two or more siblings, male or female, full or half, reduce a mother from a third to a sixth except what is related from Ibn ‘Abbās that two brothers have the same ruling as one and less than three do not exclude the mother.

Some people believe that sisters do not reduce a mother from a third to a sixth because the Book of Allah speaks about brothers, and the strength of the inheritance of the female is not like the strength of the inheritance of the male. Aṭ-Ṭabarī says that what their position would mean is that the sisters are not included with the brothers, as sons do not include daughters. That would necessitate that a mother with one brother and a sister is not reduced from a third to a sixth, which is counter to the consensus of the Muslims. If they are meant by the āyah with the brothers, they are also meant when they are on their own.

All of them deduce that the minimum plural is two because it is adding one to another like it. Therefore, it must be a plural. Furthermore, the Prophet ﷺ said, ‘Two or more is a group.’ It is related that Sībawayh said, ‘I asked al-Khalīl about what is the best way to take the words in the dual and he said, “Two is a plural.”’ The words of the poet are sound:

Two distant barren deserts like the backs [plural] of two shields.

Al-Akhfash said:

When the two women brought us the news They [plural] said, ‘The business is famous among us.’

Another said:

They give the greeting to wealthy people and are miserly with greeting the poor.

Is not death the same between them [dual] when they die [plural] and go to the graves?

There was a disagreement about that between ‘Uthmān and Ibn ‘Abbās. ‘Uthmān said to him, ‘Your people (meaning Quraysh) exclude her, and they are the people of eloquence and fine rhetoric.’

Some say that the minimum is three: Ibn Mas‘ūd, ash-Shāfi‘ī, Abū Ḥanīfah and others. Allah knows best.

After any bequest you make or any debts.

Ibn Kathīr, Abū ‘Amr, Ibn ‘Āmir and ‘Āṣim recite yuṣā and the rest have it as yuṣī. The readings from ‘Āṣim vary. Abū ‘Ubayd and Abū Ḥātim prefer the kasrah because the deceased was mentioned before this. Al-Akhfash said: ‘The confirmation of that is His words “yūṣīna” and “tūṣūna”.’

It may be asked, ‘What is the wisdom in mentioning bequests before debts when debts take priority by consensus?’ At-Tirmidhī related from al-Ḥārith that someone said to ‘Alī, ‘The Prophet ﷺ paid debts before bequests and confirmed bequests after debts while this mentions bequests before debts.’ He said, ‘The action regarding this according to most of the people of knowledge is that one begins with debts before bequests.’ Ad-Dāraquṭnī reported from ‘Āṣim ibn Ḍamrah from ‘Alī that the Messenger of Allah ﷺ said, ‘Debts come before bequests, and an heir receives no bequest.’ Abū Isḥāq al-Hamdānī related it from both of them.

There are five aspects to the answer to this. The first is that what is intended is to put these two categories before the shares of inheritance and no particular order is proposed by it. That is why bequests are put first. The second is that since a bequest is less necessary than a debt, it is put first out of concern for it, as the Almighty said about His Book: ‘which does not pass over any action, small or great.’ (18:49) The third is that bequests are put first because they often exist and so it is like it is necessary for every dead person as the Sharī‘ah has a text on it, and debts are mentioned afterwards because they are rarer and may or may not exist. So Allah begins first with what is necessary. This is strengthened by ‘or’. If there had been an order involved, He would have used the conjunction ‘and’. The fourth is that bequests are put first because they are the portion of the wretched and weak, and debts last because it is the portion of the creditor who will seek it with strength and force. The fifth is that it is because a bequest is from himself that it is put first, while a debt is confirmed, whether mentioned or not.

Since this is confirmed, ash-Shāfi‘ī added as a corollary to that the putting of debts of zakāt and ḥajj before the inheritance. He said, ‘When a man has been lax about his zakāt, that must be taken from his capital.’ This is evident because it is one of the religious rights and must be paid after death, like the rights of human beings, especially since zakāt is given to human beings. Abū Ḥanīfah and Mālik said, ‘If someone puts it in the will, it is paid from the third. If they are silent about it, nothing is paid.’ They said, ‘Because that might entail leaving heirs poor since the entire estate could be used up, leaving the heirs with nothing.’

With regard to your fathers and your sons, you do not know which of them is going to benefit you more.

This is in the nominative by the inceptive whose predicate is elided. ‘Your’ implies: ‘They are the ones who are given shares.’ It is said that the benefit is in this world through supplication and ṣadaqah, as is the tradition, ‘A man is elevated by the supplication of his child after him.’ We find in a sound hadith: ‘When a man dies, his actions are cut off except for three.’ Among them he mentioned a righteous child who makes supplication for him. It is said that it is in the Next World and the son may be better and can intercede for his father, as Ibn ‘Abbās and al-Ḥasan stated. Some commentators say that if the son has a higher degree than his father in the Hereafter, he asks Allah to raise him to him, and the same applies to the father. This will be explained in aṭ-Ṭūr. It is said that it is in both this world and the Next. Ibn Zayd said that the expression implies that.

These are the obligatory shares from Allah.

‘Obligatory shares’ is the object of ‘instructs you’ or it is in the accusative because it is a verbal noun. This informs people that they are spared the effort of making bequests to relatives when they are joined in lineage, meaning that fathers and sons benefit one another in this world by means of mutual help and solace and in the Next World by means of intercession. As that is confirmed about fathers and sons, it is confirmed about all relatives.

If the division had been entrusted to individual discretion, that would oblige investigating the wealth of each and then there would no precision since the matter varies. Therefore, the Lord makes it clear that what is best for the person is that the amounts of inheritance are not left to their discretion. So Allah clarified legal amounts.

‘Allah is All-Knowing’ of the division of the shares and ‘All-Wise’ in judging their division and making it clear to people. Az-Zajjāj said, ‘He knows things before He created them and is wise in what He decrees for them and decides about them.’ Some said that Allah was and is. The report in the past regarding Him is the same as that in the future tense. The school of Sībuwayh is that they saw wisdom and knowledge and so they were told that Allah was like that and remains like that.

You receive half of what your wives leave if they are childless.

This is addressed to men. Here the word ‘childless’ refers to not having children themselves or, therefore, grandchildren, however far removed, male or female, one or more, by consensus. Scholars agree that the husband receives a half when there are no children or grandchildren. If there are children, then he receives a quarter. When there are no children, the wife inherits a quarter from her husband, and an eighth if there are children. They agree that the ruling of one, two, three or four wives is out of the quarter if there are no children and the eighth if there are. They share in that because Allah did not distinguish between one or all as He did between one daughter and one sister and the ruling of all of them.

If a man or woman has no direct heirs

The word kalālah (tr. ‘has no direct heirs’) is a verbal noun derived from takallala in reference to lineage, meaning encompassed. Crown (iklīl) comes from it as it encompasses the head. Iklīl is also one of the stations of the moon which is encompassed by the moon. The technical term kalālah is used when a man dies and has no children or parents, as is said by Abū Bakr, ‘Umar, ‘Alī and most of the people of knowledge.

Yaḥyā ibn Ādam mentioned from Sharīk, and Zuhayr and Abu-l-Aḥwaṣ from Abū Isḥāq that Sulaymān ibn ‘Ubayd said, ‘I have not seen anyone who did not agree that the person who dies without father or child is kalālah.’ That is what was stated by the author of Kitāb al-‘Ayn, Abū Manṣūr al-Lughawī, Ibn ‘Arafah, al-Qutabī, Abū ‘Ubayd and Ibn al-Anbārī. The father and child are the two ends of lineage and ‘surround’ him. A meadow is ‘crowned’ (mukallalah) when it is surrounded in blossoms. They said:

His dwelling is a crowned meadow Covered in Ayhuqān and sweet trefoil.

He means two plants. Imru ’l-Qays said:

Companion! you see lightning and I will show you its flash like the clap of hands in the surrounding (mukallalah) clouds.

Relatives are called ‘kalālah’ because they ‘surround’ him on all sides, they not being from him nor him from them. Their surrounding him is that they are connected to him, as a desert Arab would say, ‘My wealth is great and the kalālah with loose relationship will inherit from me. Al-Farazdaq said:

You did not inherit the staff of majesty through kalālah, but from the two sons of Manāf, ‘Abd Shams and Hāshim.

Another said:

A man’s father gives him protection, but the client of kalālah is not roused to anger.

It is also said that kalālah (not having direct heirs) is derived from kalāl, which is fatigue. So it is as inheritance goes to the heir from a distance and with toil. Al-A‘shā uses it to mean exhaustion

Abū Ḥātim and al-Athram reported that Abū ‘Abīdah said, ‘Kalālah refers to the one who dies with no father, son or brother. The Arabs called him kalālah.’ Abū ‘Umar says that mentioning the brother is a mistake on his part. No one else mentions him as part of kalālah. It is also reported from ‘Umar ibn al-Khaṭṭāb that it only applies to someone with no children. That was also related from Abū Bakr, and then they both retracted it. Ibn Zayd said, ‘Kalālah describes both the living and the dead.’ ‘Aṭā’ said that kalālah is property. Ibn al-‘Arabī said that that is an unusual view with no sense whatsoever. I say that it has a meaning which was already explained by the syntax. It is reported from Ibn al-A‘rabī that kalālah are the distant sons of the paternal uncle. As-Suddī said that it is the deceased. He also mentioned the view of the majority.

These statements make its aspects clear through the syntax. Some Kufans recite ‘yūrrithu kalālatan’. Al-Ḥasan and Ayyūb recite ‘yūrithu’ while there is disagreement from the two of them. According to these two readings, the kalālah is only the heirs or the property. That is what is related by the people who deal with meanings. The first is from warratha and the second from awratha and kalālah is the object and ‘kāna’ means ‘occurred’.

If someone recites ‘yūrithu’, he makes kalālah mean property. It implies: ‘He inherits the legacy of the kalālah, and so it is an adjective of an elided verbal noun. Kalālah can also be a name for the heirs and the predicate of kāna. So it would imply: ‘with kalālah’. It can also be complete with the meaning of ‘occurred’ and ‘yūrithu’ is an adjective of ‘man’ and ‘man’ is in the nominative by ‘kāna’, and kalālah is in the accusative for explanation or for the ḥāl on the basis that the kalālah is the deceased. It implies: a man allows the relatives surrounding the deceased to inherit.

Allah mentions kalālah in His Book in two places: here and at the end of the sūrah, and in neither place does He mention any heirs except brothers. As for this āyah, scholars agree that the brothers in it are the mother’s brothers since the Almighty says: ‘If there are more than that they share in a third.’ Sa‘d ibn Abī Waqqāṣ recited, ‘and he has a brother or sister by his mother.’ There is no disagreement among the people of knowledge that the brothers of the father or mother are not the heirs. There is consensus that the brothers mentioned at the end of the sūrah are the siblings of the deceased by both the father and mother or by just the father going by Allah’s words: ‘If there are brothers and sisters, the males receive the share of two females.’ (2:176) There is no disagreement that the inheritance of maternal siblings is not like that. So the two āyahs together indicate that all siblings are kalālah. Ash-Sha‘bī said, ‘Kalālah designates heirs other than children and parents: siblings and others of the ‘aṣabah.’ That is like what ‘Alī, Ibn Mas‘ūd, Zayd and Ibn ‘Abbās said. It is the first view with which we began.

Aṭ-Ṭabarī said, ‘What is correct is that kalālah are those other than parents and children who inherit from the deceased based on the sound report of Jābir who said, “I said, ‘Messenger of Allah, the kalālah inherit from me. Shall I will away all of my property?’ ‘No,’ he answered.”’

Linguists say that a male is described as kalālah and a female also as kalālah and there is no plural or dual because it is a verbal noun like wakālah, dalālah, samāḥah and shajā‘ah. In ‘lahu akh’ the singular pronoun is repeated and not ‘lahumā’ in the dual. It was already mentioned that the custom in Arabic about men and women is that when the two names have been mentioned and then they are reported about and both have the same ruling, sometimes it is attributed to one of them and sometimes to both of them. You say, ‘Whoever has a slave and slavegirl should be good to him, to her, to both and to them,’ using any of the four pronouns. Allah says: ‘Seek help in steadfastness and the prayer. It (innahā) is very hard.’ (2:45) Allah also says: ‘Whether rich or poor, Allah is well able to look after them (bihimā)’ (4:135) in the dual. Al-Farrā; and others said that it would be permitted to say ‘bihim’ [in the plural].

A woman is called ‘imra’ah’ which is the root. The root of akh (brother) is akhw as is indicated in the dual, akhwān. It is elided from it and changed. Al-Farrā’ said that the beginning of ukht (sister) has a ḍammah because of the elision of the wāw and there is a kasrah at the beginning of bint (daughter) because of the elision of the yā’. This elision and weakness are not based on any reference.

If there are more than that they share in a third.

This sharing demands equality between a male and female, even if they are many. When they take via the mother, there is no preference for male over female. This is consensus of the scholars. There is no place in the shares in which men and women are equal except in the inheritance of the siblings of the mother.

If a woman dies and leaves a husband, mother and brother by her mother, the husband has a half, the mother a third, and the brother a sixth. If she leaves two brothers and sisters, then the husband has a half, the mother a sixth, and brothers and sisters a third and that completes the sharing out. This is the position of most of the Companions because they reduce the mother by the brother and sister from a third to a sixth. Ibn ‘Abbās does not think that there is adjustment, even if the mother is given a third. Adjustment (‘awl) is mentioned elsewhere rather than here. If she leaves a husband and brothers by the mother and a brother by the father and mother, the husband gets a half and the brothers by the mother a third, and the rest goes to the full brothers.

This is in the case of those who do not have a named share. The rest goes to the paternal relatives (‘aṣabah). If she leaves six brothers, this is the Ḥimāriyyah case and it is also called the shared case (mushtarikah). Some people said that the maternal brothers have a third, the husband half, and the mother a sixth, and the full siblings and paternal siblings are dropped. That is related from ‘Alī, Ibn Mas‘ūd, Abū Mūsā, ash-Sha‘bī, Shurayk, and Yaḥyā ibn Ādam. That is the position of Aḥmad ibn Ḥanbal, and Ibn al-Mundhir preferred it, because the husband, mother and maternal brothers have named shares and nothing remains for the ‘aṣabah. Some people said that the mother is one and that leaves their father like a donkey! They made them share the third. That is why this case is called the mushtarikah or Ḥimāriyyah. This is related from ‘Umar, ‘Uthmān, Ibn Mas‘ūd, Zayd ibn Thābit, Masrūq and Shurayḥ. It was stated by Mālik, ash-Shāfi‘ī and Isḥāq. This case is not right when the deceased is a man.

This is the sum of the knowledge of obligatory shares which the āyah contains. Allah is the One Who gives success to guidance.

In the Jāhiliyyah, inheritance was based on maleness and strength. Men rather women inherited, and then Allah nullified this by His words: ‘men have a portion’ and ‘women have a portion’ (4:32) as was already mentioned. Also in the Jāhiliyyah and at the beginning of Islam, inheritance was by alliance. Allah says: ‘If you have a bond with people’ (4:33). Then after alliance, there was alliance by hijrah. Allah says: ‘As those who believe but have not made hijrah, you are not in any way responsible for their protection until they make hijrah.’ (8:72)

Then there was the position about relatives and their inheritance. In Sūrat an-Nūr we will discuss the inheritance of the child of a li‘ān, a bastard and a mukātib. Most scholars say that if someone who has been captured by the enemy is known to be alive, his inheritance is confirmed because he is part of the sum of Muslims subject to the rulings of Islam, although it is related that Sa‘īd ibn al-Musayyab said that someone held by the enemy does not inherit. The inheritance of an apostate was mentioned in Sūrat al-Baqarah.

making sure that no one’s rights are prejudiced.

This is in respect of the bequests, in other words without that harming the heirs. For instance, it is not appropriate for someone to put a debt in the will, that he does not owe, in order to harm the heirs. Causing harm refers to bequests and debts. In bequests, it is to make bequests of more than a third or to make a bequest to an heir. If it is more than a third, it is rejected unless the heirs allow it because it is denying them their rights, not a right of Allah. A bequest to an heir reverts to the general inheritance. Scholars agree that a bequest to an heir is not permitted. This was already mentioned in al-Baqarah. As for claiming a debt, it is affirmation in a situation in which it is not permitted, as when someone affirms in his final illness that he owes it to his heirs or a close friend. We do not think that that is permitted.

It is related that al-Ḥasan recited ‘ghayra muḍārri waṣīyatin’ based on iḍāfah. An-Naḥḥās said, ‘Some linguistic scholars claim that this is ungrammatical because the noun of the active participle is not put into iḍāfah with a verbal noun. The reading is good based on an elision. It means: not prejudicing the one with a will,’ i.e. not harming his heirs in their inheritance by it.

Scholars agree that affirming a debt to other than a relative in a final illness is allowed when someone did not have the debt while healthy. If there is clear evidence of a debt being incurred while he was healthy and he affirms a debt owed to a non-relative, one group say that one begins with debts incurred while he was healthy. This is the view of an-Nakha‘ī and the Kufans. They said, ‘When the person settles them, the people who have been confirmed while he was ill take shares. Another group says that they are both the same when the creditor is not an heir. This is the position of ash-Shāfi‘ī, Abū Thawr, and Abū ‘Ubayd. Abū ‘Ubayd mentioned that it is the position of the people of Madīnah. He related that from al-Ḥasan.

The different aspects of harm in respect of bequests were already discussed in al-Baqarah. It is reported by Abū Dāwud from Sahr ibn Ḥawshab (who is attacked) from Abū Hurayrah that the Messenger of Allah ﷺ said, ‘A man or woman may obey Allah for sixty years and then they are dying and they cause harm in their will and so the Fire becomes mandatory from them.’ Then Abū Hurayrah would recite this āyah.

Ibn ‘Abbās said that causing harm by one’s will is one of the great wrong actions, and he related that from the Prophet ﷺ. The well-known position of the school of Mālik and Ibn al-Qāsim is that the harm of someone who makes a will cannot exceed the third because that is his right to dispose of as he wishes. There is also a position in the school which is that harm is rejected. Success is by Allah.

Allah is All-Knowing, All-Forbearing.

He knows the people of inheritance and is forbearing to the people of ignorance among you. Some people recite Ḥakīm (wise) instead of Ḥalīm (All-Forbearing), meaning that He is wise regarding the division of the legacy and wills.

These are Allah’s limits.

‘Those’ means ‘these’, i.e. these are the rulings of Allah which He has made clear to you so that you know them and act by them.

As for those who obey Allah and His Messenger

They obey Him in respect of the division of inheritance and affirm it as Allah has commanded them. The sentence: ‘We will admit them into Gardens with rivers flowing under them’ is in the position of the accusative as an adjective of ‘Gardens’.

As for those who disobey Allah and His Messenger and overstep His limits,

They disobey Him in respect of the division of inheritance and do not distribute it and do not act by it. They ‘overstep His limits’ by opposing His command. If disobedience here means disbelief, then it is in the Fire forever. If it means a major wrong action and exceeding Allah’s commands, then it is a metaphor for a certain period, and that is a usage of khalada as one might say, ‘May Allah make his kingdom endure forever!’ Zuhayr said:

Nothing is forever except the firm mountains.

This has been discussed elsewhere.

Nāfi‘ reads this as ‘We will admit’ (nudkhilhu) with the Divine ‘We’ in the two places while the rest read it as ‘He will admit’ (yudkhilhu) because Allah was already mentioned. It means: Allah will admit him.

15 If any of your women commit fornication, four of you must be witnesses against them. If they bear witness, detain them in their homes until death releases them or Allah ordains another procedure for their case.

In this sūrah, Allah mentions being good to women and giving them their dowries and He also mentions their inheritance together with that of the men. Then He mentions being harsh to them in the case of any fornication they may commit of so that it might not be imagined that a woman be allowed to be lax where chasteness is concerned.

Allātī is the plural of allatī and it is an undefined feminine noun which is definite. It is not permitted to remove the alif-lām from it to make it indefinite and it is only complete when connected. As we already mentioned, it has three dialectical forms and a plural: allāti without the yā’ but with the kasrah, allā’ī with a hamzah and keeping the yā’, and allā with the hamzah elided. When you make the plural plural, you use allawātī for allāti, allawā’ī for allā’ī. It is related from them as allawāti without the yā’ but with the kasrah. Ibn ash-Shajarī said that. [POEMS WITH FURTHER GRAMMATICAL EXAMPLES] Fāḥishah here means fornication. Faḥishah is an ugly action, and it is a verbal noun like ‘āqibah and ‘āfīyah. Ibn Mas‘ūd recited ‘bi-l-fāḥishati’.

‘Your women’ means Muslim women, not those related by lineage. It explains the state of the believing women. The same usage is seen in 2:282. That is because an unbelieving woman might be connected to women of the Muslims by lineage but would not not be subject to this ruling.

four of you must be witnesses against them.

This means four Muslims. Allah requires four witnesses to fornication in order to make it hard for the claimant and to veil people. Requiring four reputable witnesses to fornication is a firm ruling in both the Gospel and the Qur’an. Allah says: ‘But those who make accusations against chaste women and then do not produce four witnesses: flog them with eighty lashes.’ (24:4) Here He mentions four.

Abū Dāwūd reports from Jābir ibn ‘Abdullāh: ‘The Jews brought a man and woman of theirs who had committed fornication. The Prophet ﷺ said, “Fetch me the most knowledgeable two men among you.” They brought him the sons of Ṣūriyā and he asked, “What do you find in the Torah about the business of these two?” They said, “We find in the Torah that if four testify that they saw his penis in her vagina like a stick in a kohl bottle, then they are stoned.” He asked, “What keeps you from stoning them?” They replied, “Our authority has gone and we dislike killing.” So the Messenger of Allah ﷺ summoned the witnesses and they came and testified that they saw his penis in her vagina like a stick in a kohl bottle, and the Messenger of Allah ﷺ commanded that they be stoned.’

Some people say, ‘The witnesses in fornication are four so that there are two witnesses against each of the two parties, as is the case in all rights, since a right is taken from each of them.’ This is weak. The oath deals with property and suspicion in the qasamah, and it does not apply here. The witnesses must be male since He says, ‘minkum’, and there is no disagreement in the Community about that, and they must be of good character because Allah stipulates good character in sales and retraction, and this is a greater matter so it is more fitting here. This is part of applying the general to the restricted in evidence as mentioned in the fundamental principles of fiqh. They cannot be dhimmīs, although judgment can be made against dhimmīs. That will be discussed in al-Mā’idah. Abū Ḥanīfah added that ‘four of you’ is about the husband when he is one of the witnesses in slander and does not carry out the li‘ān. This will be explained in an-Nūr.

If they bear witness, detain them in their homes

This was the first of the punishments for fornication. It was at the beginning of Islam. ‘Ubādah ibn aṣ-Ṣāmit, al-Ḥasan and Mujāhid said that. That lasted until it was abrogated by the punishment after it and then that was abrogated by the āyah in an-Nūr and stoning for someone previously married. One group said that the corporal punishment was first and then was abrogated by detaining but the order in recitation is different. Ibn Fūrak mentioned that. Detaining used to be in houses at the beginning of Islam before there were a lot of criminals. When they were a lot and their strength was feared, a prison was constructed for them. Ibn al-‘Arabī said that.

Scholars disagree about whether prison is a ḥadd punishment or threatening with a ḥadd. One position is that it is threatening a ḥadd and the second that that is an actual hadd. Ibn ‘Abbās and al-Ḥasan said that. Ibn Zayd said that they were forbidden to marry until they died as a punishment for them when they had unlawful sexual intercourse. This indicates that it was a ḥadd punishment and indeed more severe. However, that ruling ended with the punishment prescribed in the other āyah, according to the difference in the two interpretations about which was first. Both had a term in the words of the Prophet ﷺ in the hadith of ‘Ubādah ibn aṣ-Ṣāmit: ‘Take from me. Take from me. Allah has made a way for them: a hundred lashes and exile for a year for a virgin and a hundred lashes and stoning for someone previously married.’ This is like Allah’s words: ‘Fulfil the fast until the night appears.’ (2:187) When night comes, the ruling of fasting is removed; it is not abrogated. This is what is stated by accurate later scholars from among those who study fundamentals. Abrogation occurs when there are two contradictory positions which cannot be combined. It is possible to combine imprisonment and ignominy, and flogging and stoning.

Some scholars said that abuse and ignominy remain with flogging because they are not contradictory and can both be combined against the same person. There is consensus that imprisonment is abrogated. It is permissible to apply abrogation to the like of it. Allah knows best.

16 If two men commit a like abomination, punish them. If they repent and reform, leave them alone. Allah is Ever-Returning, Most Merciful.

‘Two’ (alladhāni): it is the dual of alladhī. By analogy, one would say, ‘alladhayāni’ like raḥayāni, muṣṭafayāni and shajayāni. Sībawayh said that the yā’ is elided in order to differentiate between declinable nouns with nunnation and demonstrative pronouns. Abū ‘Alī said that the yā’ is elided for lightening when one is safe from confusion in alladhānī because the nūn is not elided, although the nūn of the dual in declinable nouns is elide when it is in iḍāfah in raḥayā, and muṣṭafayā. If the yā’ had been elided, it would have resembled the singular with two.

Ibn Kathīr recited ‘alladhānni’ with a doubled nūn which is the dialect of Quraysh. The reason is that the doubling takes the place of the alif of dhā as will be explained in al-Qaṣaṣ. (28:32) There is another dialect which has ‘alladhā’ with the nūn elided. This is the view of the Kufans. The Basrans said that the nūn is elided because of the length of the word when connected. Similar is the reading of ‘hadhānni’ and ‘fa-dhānnaka burhānāni’. The rest have ‘alladhāni’. Abū ‘Amr has the aberrant ‘fa-dhānnika’.

‘Two’ is in the nominative for the inceptive. Sībawayh says that it means: ‘in what is recited to you: if two men among you commit it (meaning fornication).’ The fā’ is added to ‘punish them’ because the words have the meaning of a command because when ‘alladhī’ is connected to a verb, it is possible for it to have the meaning of a precondition when nothing specific is applied to it. When a precondition is possible and nothing is defined, then it acts as a precondition and the fā’ is added, and what is implied before it does not act on it, as the precondition is not affected by [what is implied or clearly stated before it. Then it is unlikely that what is implied before it acts on ‘those’, then the implication is not good.] The accusative is permitted when a verb is implied, and that is preferred when the words convey the meaning of a command or prohibition, like: ‘Those who are with you: honour them.’

punish them.

Qatādah and as-Suddī said that it means to rebuke and reproach. A group said that it is castigation and being harsh without reproach. Ibn ‘Abbās said, ‘It is attacking with the tongue and hitting with sandals.’ An-Naḥḥās said that some people claim it is abrogated. Ibn Abī Najīḥ related that Mujāhid said that this and the previous āyah existed at the beginning and then were abrogated by the āyah in an-Nūr. An-Naḥḥās said that it more fitting that it is not abrogated and it is obliged to punish them with rebuke, saying, ‘You committed this, sinned and opposed Allah’s command.’

Scholars disagree about the interpretation of the prepositions ‘they’ (fem.) in the previous āyah and ‘two’ here. Mujāhid and others said that the first āyah is about women in general, muḥṣanāt or not. The second is about men in particular, and the dual makes the category of men clear, muḥṣan or not. The punishment of women is imprisonment and that of men is castigation. This is what the words demand and the words deal in full with the types of fornication. That is reinforced by what His words in the first, ‘your women’ and ‘you’ in the second. An-Naḥḥās preferred that and related it from Ibn ‘Abbās.

As-Suddī, Qatādah and others said, ‘The first is about muḥṣanāt women, and so includes men who are muḥṣan, and the second is about men and women who are virgins.’ Ibn ‘Aṭiyyah said, ‘According to this, the meaning is complete, although the expression of the āyah is unsettled about it.’ Aṭ-Ṭabarī preferred that but an-Naḥḥās rejected it, saying that it is unlikely that the feminine preposition would dominate the masculine.

It is said that a fornicatress is imprisoned rather than the man, but they are both castigated. Qatādah said, ‘A woman is imprisoned and both are castigated. This is because a man needs to earn and work.’ Scholars disagree about the position according to the hadith of ‘Ubādah which clarifies the rulings of fornication as we made clear. ‘Alī ibn Abī Ṭālib’s position, in which there is no dispute, was in agreement with it. He flogged Shurāḥah al-Hamdāniyyah with a hundred lashes and stoned her afterwards. He said, ‘I flogged her by the Book of Allah and stoned her by the sunnah of the Messenger of Allah ﷺ.’ Al-Ḥasan al-Baṣrī, al-Ḥasan ibn Ṣāliḥ ibn Ḥayy and Isḥāq said that.

A group of scholars said, ‘Someone previously married is stoned without being flogged.’ This is related from ‘Umar and is the position of az-Zuhrī, an-Nakha‘ī, Mālik, ath-Thawrī, al-Awzā‘ī, ash-Shāfi‘ī, the People of Opinion, Aḥmad and Abū Thawr, holding to the fact that the Prophet ﷺ stoned Mā‘iz and the Ghāmidiyyah woman without flogging them, and to what the Prophet ﷺ said to Unays, ‘Go to this woman and if she confesses, stone her.’ He did not mention flogging. If it had been prescribed, he would not have been silent about it. The response to that was that he was silent about it because it is confirmed by the Book of Allah. It is not impossible for him to have been silent about it since it was well known and there is a text on it in the Qur’an since Allah says: ‘A woman and a man who commit fornication: flog both of them with a hundred lashes.’ (24:2) This includes all fornicators. Allah knows best. This explains what ‘Alī did by adopting it from the caliphs and no one objected to it. The answer to this is that he acted by the abrogated and left the abrogating. This is clear.

They disagree about the exile of unmarried people in addition to flogging. The position of the majority is that they are exiled as well. The Rāshidūn caliphs, Abū Bakr, ‘Umar, ‘Uthmān and ‘Alī, said that. It is the position of ‘Aṭā’ Ṭāwus, Sufyān, Mālik, Ibn Abī Laylā, ash-Shāfi‘ī, Aḥmad, Isḥāq and Abū Thawr. Ḥammād ibn Abī Sulaymān, Abū Ḥanīfah and Muḥammad ibn al-Ḥasan ash-Shaybānī said that it is abandoned. The evidence of the majority is the hadith of ‘Ubādah and that of Abū Hurayrah and Zayd ibn Khālid in which the Prophet ﷺ said, ‘By the One who has my soul in His hand, I will decide between you two by the Book of Allah. Your sheep and slave-girl should be returned to you.’ He flogged his son with a hundred and exiled him for a year. The imams transmitted it.

Those who do not think that there should be exile use the hadith of Abū Hurayrah about the slave-girl in which flogging rather than exile is mentioned. ‘Abd ar-Razzāq mentioned from Ma‘mar from az-Zuhrī that Sa‘īd ibn al-Musayyab said, ‘‘Umar exiled Rabī‘ah ibn Abī Umayyah ibn Khalaf to Khaybar for drinking wine where he joined Heraclius and became a Christian. ‘Umar said, “I will not exile a Muslim after this.”’ They said, ‘If exile had been a ḥadd punishment of Allah, ‘Umar would never have abandoned it. The text which is in the Book is flogging and increase beyond the text is abrogated.’

In reply to this, the hadith of Abū Hurayrah is about slave-girls, not free people. There is a sound report that ‘Abdullāh ibn ‘Umar beat his slave-girl for fornication and exiled her. As for the hadith of ‘Umar, he meant for wine, and Allah knows best, since Nāfi‘ related from Ibn ‘Umar that the Prophet ﷺ flogged and exiled as did Abū Bakr and ‘Umar. At-Tirmidhī in the Jāmi‘ and an-Nasā’ī in the Sunan transmitted it from Abū Kurayb Muḥammad ibn al-‘Alā’ al-Hamdānī from ‘Abdullāh ibn Idrīs from ‘Ubaydullāh ibn ‘Umar from Nāfi‘. Ad-Dāraquṭnī said that ‘Abdullāh ibn Idrīs alone had it and the only reliable person who has it from him is Abū Kurayb. Exile is reported in a sound transmission from the Prophet ﷺ, so no one can debate its validity. Whoever differs from the Sunnah argues with it. Success is by Allah.

What they said about increase over the text being abrogated is not sound. There can be an additional ruling to the basic one. There are many instances of this about things which are not in the Qur’an. This was discussed in al-Baqarah.

Those who disagree about exile do not do so about exiling free males. They disagree about exiling slaves or slave-girls. Ibn ‘Umar was one of those who thought that they should be exiled: he flogged a slave-girl for fornication and exiled her to Fadak. It is the position of ash-Shāfi‘ī, Abū Thawr, ath-Thawrī, aṭ-Ṭabarī and Dāwud. They disagree about ash-Shāfi‘ī’s position about exiling slaves. Sometimes he said that exiling slaves is subject to doing an istikhārah, sometimes he said that it is for half a year, and sometimes he said that it is a year to a different town, as aṭ-Ṭabarī said.

They have two positions about exiling slave-girls. Mālik said that men should be exiled but not women or slaves. The one who is exiled is detained in the place to which they are exiled, as from Egypt to the Hijaz, Shaghb, Aswan and the like, and from Madīnah to Khaybar and Fadak. That is what ‘Umar ibn ‘Abd al-‘Azīz did, and ‘Ali exiled people from Kufa to Basra. Ash-Shāfi‘ī said that the minimum is the journey of a day and a night.

Ibn al-‘Arabī said, ‘The basis of exile is that the tribe of Ismā‘īl agreed that someone who committed something wrong in the Ḥaram should be exiled from it and so that became a sunnah in their dīn. That is why the sunnah of the people was that when someone committed something wrong, they were exiled. That continued in the Jāhiliyyah until Islam came and then it was confirmed only in the case of fornication.’

Those who did not think that exile applied to slaves used the hadith of Abū Hurayrah as evidence. That is also because exile then becomes a punishment for the owner who is denied the use of the slave during the period of exile. That is not in keeping with the usage of the Sharī‘ah. None but the perpetrator should be punished. Allah knows best. Furthermore, Jumu‘ah, ḥajj and jihad which are Allah’s right are cancelled for him because of his master. The same is true of exile. Allah knows best.

When a woman is exiled, that could be a cause for her falling into the very thing she was expelled for, which is fornication. Exile might act as a cause of her being exposed and possibly ruin her. That was the reason for not letting her leave her house and for her praying in it being better. This restricts the generality of the hadith about exile to the aspect of welfare that is witnessed in it. It is a topic of disagreement among those who deal with uṣūl and thinkers. One group took an aberrant view and said that flogging and stoning are combined in the case of an old man while a young man is flogged. This is based on holding to the word ‘old man’ in the hadith of Zayd ibn Thābit who heard the Messenger of Allah ﷺ say, ‘When an old man and old woman fornicate, stone them completely.’ An-Nasā’ī transmitted it. This is unsound because in another hadith he called him ‘previously married (thayyib).’

If they repent and reform, leave them alone.

‘If they repent’ of fornication and ‘reform’ with respect to what they do afterwards, ‘leave them alone,’ meaning do not castigate them. That was before the revelation of the ḥadd punishments. When the ḥudūd were revealed, this āyah was abrogated. What is meant by ‘leave them alone’ is not emigration but being shunned and left alone. That is abasement for them because of their disobedience and because of the ignorance in the other āyah. Allah is Ever-Turning means that He makes His slaves turn back from acts of disobedience.

17 Allah only accepts the repentance of those who do evil in ignorance and then quickly repent after doing it. Allah turns towards such people. Allah is All-Knowing, All-Wise. 18 There is no repentance for people who persist in doing evil until death comes to them and who then say, ‘Now I repent,’ nor for people who die unbelievers. We have prepared for them a painful punishment.

Allah only accepts the repentance of those who do evil in ignorance

This āyah is general to all who commit a wrong action. It is also said that it only applies to those who commit do evil in ignorance. Tawbah (repentance), however, is for everyone who does a wrong action. The Community agree that tawbah is obligatory for the believers since the Almighty says: ‘Turn to Allah, every one of you, O believers.’ (24:31) It rectifies a wrong action even if he does another one of a different type, which differs from the Mu‘tazilites who say that someone who does any other wrong action has not truly repented. There is no difference between one act of disobedience and another. This is the school of the people of the Sunnah.

When a person repents, Allah can accept it if he wishes or not accept it. It is not logically obligatory for Allah to accept repentance, as opponents state, because a precondition of an obligator is that it is necessarily higher than the rank of the object of the obligation. Allah created creation and is its King and the One who imposes responsibility and so cannot be described as there being anything obligatory on Him. He is exalted above that. Nonetheless He states that He fulfils His promise to accept repentance from those of His slaves who disobey when He says: ‘It is He Who accepts repentance from His slaves and pardons evil acts’ (42:25) and: ‘Do they not know that Allah accepts repentance from His slaves’ (9:104) and: ‘But I am Ever-Forgiving to anyone who repents.’ (20:82).

So He speaks about things which He makes obligatory on Himself while the belief is that nothing is logically obliged for him. As for what the words say, their literal expression indicates that He accepts the repentance of the one who repents. Abu-l-Ma‘ālī and others said that the literal accords probability; it is not an absolute statement that Allah will accept repentance. Ibn ‘Aṭiyyah said, ‘Abū ‘l-Ma‘ālī and others were opposed in their espousal of this meaning. If we assume that someone repents with sincerity and with all the preconditions necessary for it, according to Abu-l-Ma‘ālī, it is only probable that his repentance be accepted. Others say that it is certain that Allah will accept it since He has reported this about Himself.’ Ibn ‘Aṭiyyah said, ‘My father inclined to this position and gave it predominance. It is also my position. Allah is too merciful to His slaves to break this promise to the one who repents, as He says: “It is He Who accepts repentance from His slaves” (42:25) and: “But I am Ever-Forgiving” (20:82).’

Since this is confirmed, know that this means that there is elision here and it is not taken literally. It means: ‘It is from the bounty and mercy of Allah to His slaves.’ This is similar to what the Prophet ﷺ said to Mu‘ādh, ‘Do you know the right that Allah’s slaves have over Him?’ He replied, ‘Allah and His Messenger know best.’ He said, ‘That He admits them to the Garden.’ This all means ‘by His favour and mercy,’ and it is a promise. The evidence is in His words: ‘Allah has prescribed for himself mercy’ (6:12), meaning He has promised it.

It is also said that the preposition ‘alā here means ‘with’. The meaning is the same. It means that Allah does not fail in His promise to accept repentance when four conditions are fulfilled: regret in the heart, immediately abandoning the action, resolve not to return to the like of it, and that it arises from shame before Allah, not other people. If one of these conditions is lacking, then repentance is not sound. It is said that another of its conditions is admission of the wrong action and a lot of asking forgiveness. Many of the ideas and rulings about repentance were mentioned in Āl ‘Imrān.

There is no disagreement that repentance does not rescind a ḥadd punishment. That is why our scholars said that if a male or female thief or slanderer repent but evidence against them is established, then the ḥadd punishment must still be carried out on them.

It is also said that the preposition ‘alā here means ‘from’, meaning that tawbah comes from Allah to those. Abū Bakr ibn ‘Abdūs said that. Allah knows best. Sincere repentance and the things for which repentance should be made will be discussed in at-Taḥrīm.

In the phrases ‘of those who do evil in ignorance’ and in ‘If anyone among you does evil out of ignorance’ (6:54) the word ‘evil’ includes both disbelief and disobedience. Anyone who disobeys his Lord is ignorant until he ceases his disobedience. Qatādah said, ‘The Companions of the Prophet ﷺ agreed that every act of disobedience is ignorance, whether intentional or out of ignorance.’ Ibn ‘Abbās, Qatādah, aḍ-Ḍaḥḥāk, Mujāhid and as-Suddī said that. It is related that aḍ-Ḍaḥḥāk and Mujāhid said that the ignorance meant here is intentional. ‘Ikrimah said, ‘All the matters of this world are ignorance,’ meaning in particular what is not obedience to Allah. This refers to the worlds of the Almighty: ‘The life of this world is merely a game and diversion.’ (47:36) Az-Zajjāj said that ‘ignorance’ here is their choosing passing pleasure over the lasting pleasure. It is said that ‘ignorance’ means not knowing the manner of punishment. Ibn Fūrak mentioned that, but Ibn ‘Aṭiyyah said it is weak and refuted.

and then quickly repent after doing it.

Ibn ‘Abbās and as-Suddī said that this means before a person’s final illness. It is related that aḍ-Ḍaḥḥāk said, ‘All that occurs before death is quick.’ Abū Miljaz, aḍ-Ḍaḥḥāk, ‘Ikrimah, Ibn Zayd and others said that it means before seeing the angels and drivers and before a person is overpowered. Maḥmūd al-Warrāq said some excellent verses on this:

Before you die and before tongues are stopped, send ahead hopeful repentance.

Hasten with it before breath is stopped. It is a treasure and booty for the penitent good-doer.

Our scholars say that repentance is sound at this moment because hope still remains, and regret and resolve to reform is sound. At-Tirmidhī related from Ibn ‘Umar from the Prophet ﷺ, ‘Allah accepts the repentance of a person as long it is before the death rattle.’ He said that this is a ḥasan gharīb hadith. That is as long as his spirit has not reached his throat. So the position is where the rattle or gargling takes place as al-Harawī said.

It is also said that it means people should repent soon after the wrong action without persisting in it. It is better to do so when one is still healthy since there is then hope of performing righteous actions. The furthest distance is death. It is as is said:

[They say, ‘You are not far away’ as they are burying me.] Where is distance except where I am.

Ṣāliḥ al-Murrī related that al-Ḥasan said, ‘Whoever faults his brother for a wrong action for which he repents to Allah, Allah will test him by it.’ Al-Ḥasan said, ‘When he fell Iblīs said, “By Your might, I will not leave the son of Ādam as long as his spirit is in his body.” Allah replied, “By My might, I will not veil repentance from the son of Ādam as long as he has not made his death rattle.”’

There is no repentance for people who persist in doing evil until death comes to them

Allah precludes those who are dying and despairing of life from being included under the judgment of repentance, as, for instance, was the case of Pharaoh when he was drowning. The faith he displayed did not help him. Repentance at that moment is of no use because it takes place after the removal of responsibility. That is what Ibn ‘Abbās, Ibn Zayd and the majority of commentators say.

As for the unbelievers who die in their disbelief, there is no possibility of repentance for them in the Next World, as Allah indicates to them when he says: ‘We have prepared for them a painful punishment,’ meaning for all eternity. Although the words indicate everyone, the punishment for the disobedient Muslim is not eternal. The same applies to all wrong actions short of disbelief. It means that repentance is possible for anyone who does evil deeds short of unbelief and then repents at death, but not for someone who is an unbeliever who repents on the Day of Rising. It is said that the evil here is unbelief and so it means: ‘There is no repentance for the unbelievers who repent at the time of death nor for those who die while they are unbelievers.’

Abu-l-‘Ālīyah said, ‘The first āyah was revealed about the believers: “Allah only accepts the repentance,” and the second is about the hypocrites: “There is no repentance…”, meaning there is no acceptance of repentance from those who persist in their actions until they are dying and see the Angel of Death.’ Then his words, ‘Now I repent’ do not constitute repentance. The unbelievers will have a painful abiding punishment.

19 You who believe! it is not lawful for you to inherit women by force. Nor may you treat them harshly so that you can make off with part of what you have given them, unless they commit an act of flagrant indecency. Live together with them correctly and courteously. If you dislike them, it may well be that you dislike something in which Allah has placed a lot of good. it is not lawful for you to inherit women by force.

This is connected to what was already mentioned about wives. What is meant is to prevent any injustice or harm to them. It is addressed to guardians. ‘An’ is in the nominative by ‘not lawful’, in other words, ‘it is not lawful for you to inherit women.’ ‘Karh’ is a verbal noun in the position of a ḥāl.

Various things are said about the reason for the revelation of this āyah. Al-Bukhārī reported about it from Ibn ‘Abbās: ‘When a man died, his guardians were entitled to his wife. If one of them wished, he could marry her, or give her in marriage or not give her in marriage. They were more entitled to her than her own family and so this āyah was revealed about that.’ Abū Dāwud transmitted it. Az-Zuhrī and Abū Mijlaz said, ‘Their custom when a man died was that when his son by another woman or the closest of his paternal relatives cast his garment on the wife, he became more entitled to her than herself and her guardians. He could marry her without any dowry other than the one she had been given by the deceased or marry her to another and take her dowry and not give her anything. If he wished, he could leave her in limbo until she ransomed herself with what she had inherited or until she died. So Allah revealed this.’ It means: ‘It is not lawful for you to inherit women from their husbands and become their husbands.’ It is said that if the heir arrived first and threw a garment on her, he was more entitled to her. If she reached her family first, then she was entitled to herself. As-Suddī said that.

It is said that if an old woman was married to a man and he desired a young woman and disliked leaving the old one because of her wealth, he would keep her and not go near her until she ransomed herself from him by her property or died so that he would inherit her wealth. This āyah was revealed and the husband ordered to divorce her if he disliked her company and not to keep her forcibly. That is the meaning of this āyah. What is meant by the āyah is to annul what they did in the Jāhiliyyah and not to treat women like property which could be inherited by men.

‘Force’ is read as karh by all except Ḥamzah and al-Kisā’ī who read it ‘kurh’. They are two dialectical forms. Al-Qutabī said that karh means force and kurh means hardship. It is said that it means doing that willingly or unwillingly.

The āyah is addressed to guardians. It is also said that it is addressed to the husbands of women when they retain them while at the same time treating them badly out of desire for their inheritance or wanting them to ransom themselves with some of their dowries. This is sounder, and preferred by Ibn ‘Aṭiyyah. The proof of that is: ‘unless they commit an act of flagrant indecency.’ If they do that, then the guardian cannot keep them in order to exhaust their property: that is the consensus in the community. That is for the husband as will be explained further on.

nor may you treat them harshly

The meaning of ‘aḍl, which is prevention, was explained in al-Baqarah.

unless they commit an act of flagrant indecency.

People disagree about what is meant by this. Al-Ḥasan said, ‘It refers to fornication. If a virgin commits fornication, she is given a hundred lashes and exiled for a year and returns to her husband what she took from him.’ Abū Qilābah said, ‘If a man’s wife commits fornication, there is nothing wrong in harming her and constricting her until she ransoms herself.’ As-Suddī said, ‘If they do that, take their dowries.’ Ibn Sīrīn and Abū Qilābah said, ‘It is not lawful to take ransom from her unless he finds a man on her belly. Allah says: “unless they commit an act of flagrant indecency.”’ Ibn Mas‘ūd, Ibn ‘Abbās, aḍ-Ḍaḥḥāk and Qatādah said a flagrant act of indecency in this āyah means hatred and recalcitrance. They said, ‘When she refuses to fulfil her duties, her husband can take her property, and this is the school of Mālik.’ Ibn ‘Aṭiyyah said, ‘I do not have any text from him about the “act of flagrant indecency” referred to in the āyah.’

Some people said that fāḥishah here means foul language and bad company in respect of word and action. This is recalcitrance (nushūz). Some of the people of knowledge permit taking money from a disobedient wife in a khul‘ although he cannot exceed what he gave her since Allah says: ‘to make off with part of what you have given them.’ Mālik and another group of the people of knowledge said that a husband can take everything that a disobedient wife owns. Ibn ‘Aṭiyyah said, ‘Fornication is harder for the husband than disobedience and harm. Every fāḥishah renders taking property lawful.’

Abū ‘Umar said, ‘I consider the statement of Ibn Sīrīn and Abū Qilābah to be nothing because fāḥishah can be foul language and harm. Someone who uses foul language is called fāḥish. If an act of fāḥishah is committed, the husband can pronounce a li‘ān or simply divorce her. But he is not allowed to harm her to make her ransom herself from him with her money. I do not know of anyone who says that he can harm her and be bad to her so that she demands a khul‘ if he finds that she has fornicated – other than Abā Qilābah. Allah knows best.’

Allah says in Surah al-Baqarah: ‘If you fear that they will not remain within Allah’s limits’ (2:229). This means that in the event that there is no likelihood of the the couple maintaining good companionship and the husband respecting his wife’s rights over him and the wife respecting her husband’s rights over her: ‘There is nothing wrong in the wife ransoming herself.’ Allah also says: ‘If they are happy to give you some of it, make use of it with pleasure and goodwill.’ (4:4) These āyahs give us the basic principles underlying this matter. Ibn ‘Aṭā’ al-Khurāsānī said, ‘It used to be that if a man’s wife committed adultery, he would take from her what he had given her and throw her out. That was abrogated by the ḥudūd.’ A fourth position is that this means: ‘unless they fornicate. If they do so, they are detained in their houses.’ So this refers to the time before the abrogation and this is the same idea as the position of Ibn ‘Aṭiyyah. It is weak.

If we take the position that it is guardians who are addressed, then its fiqh is that, if it is proven that the guardian is unduly harsh, the Qāḍī investigates the business of a woman and her husband and he should only look at her as a father would at his daughters. If there is benefit in his preventing her marriage, he is not opposed in doing that. That is in relation to one or more marriage proposals. If it is proven that he is simply preventing her from marrying, there are two positions on it in the school of Mālik. One is that he is like all guardians and the Qāḍī can marry off any of his daughters he wishes to, and the other is that he is not opposed in what he does.

The words ‘Nor treat them harshly’ can be jussive as a prohibition, and the wāw is then conjunctive, adding a sentence composed of words disconnected from the first sentence. It can also be in the accusative as joined to ‘inherit and so the wāw is shared, adding one verb to another. Ibn Mas‘ūd recited ‘walā ta‘ḍulūhunna’, a reading which strengthens the possibility of the accusative and the fact that it is a statement about ‘aḍl not being permitted.

Nāfi‘ and Abū ‘Amr read ‘clear’ as ‘mubayyinah’ and ‘mubayyanāt’ in 24:34 and 46. Ibn ‘Abbās reads ‘mubīnah’ from Form IV which is used for the thing being clear itself and for making it clear. All of these are eloquent dialectical usages.

Live together with them correctly and courteously

This means according to what Allah has commanded in terms of keeping good company. It is addressed to everyone since all keep company, whether they are husbands or guardians. The command, however, is directed particularly to husbands, as in Allah’s words: ‘retain them with correctness and courtesy.’ (2:229) It means to give a wife full rights of dowry and maintenance and not to frown at her for no reason and to be cheerful in speech, not rude or harsh or showing inclination for another woman. ‘Living together’ refers to mixing together and socialising. Illustrating that are the words of Ṭarafah:

If the tract she travels in is sometimes far, Perhaps the promise of the lover will be intimate.

He makes the lover like an associate and company. ‘Āshara, mu‘āsharah, is to consort with as ta‘āshara describes people mixing together as does a‘tashara.

Allah commands people to keep good company with women when a contract is made with them so that there is familiarity between them and perfect companionship. It is more calming for the self and better for life. This is a duty for the husband, but he is not obliged to make it up. One of them said, ‘He should beautify himself for her as she does for him.’ Yaḥyā ibn ‘Abd ar-Raḥmān al-Ḥanẓalī said, ‘I went to Muḥammad ibn al-Ḥanafiyyah and he came out to me wearing a red mantle with perfume dripping from his beard. “What is this?” I asked. He replied, “This is a cloak which my wife put on me and she put perfume on me as well. They want of us what we want of them.”’ Ibn ‘Abbās said, ‘I want to adorn myself for my wife as I want my wife to adorn herself for me.’ Ibn ‘Aṭiyyah said, ‘For the meaning of the āyah, look at the words of the Prophet ﷺ, “Enjoy her even if there is some crookedness in her,” meaning do not show bad companionship towards her even if she is crooked. That will produce opposition and end in a split. It is the reason for khul‘.’

Scholars use the words as evidence that when one servant is not enough for a woman, her husband should provide her with servants commensurate with her social standing, as, for instance, in the case of the daughter of a caliph or king and those like them for whom one servant is not enough. That is living together correctly. Ash-Shāfi‘ī and Abū Ḥanīfah said, ‘He is only obliged to provide one servant. That will spare her serving herself. There is no woman in the world for whom one servant is not adequate. This is like someone who has a number of horses. He only gets the share of one horse because he can only fight on one horse.’ Our scholars said, ‘This is wrong because daughters of kings, who have many servants, are not satisfied by one servant because they need to have their clothes washed, their beds made and others things which require more than one.’ This is clear and Allah knows best.

If you dislike them, it may well be that you dislike something in which Allah has placed a lot of good.

This dislike may come about because of ugliness or bad character that did not involve their committing an act of indecency or disobedience. In that case putting up with it is recommended. Perhaps the reason for that is that through her Allah will provide him with righteous children. This is indicated by something in Ṣaḥīḥ Muslim from Abū Hurayrah who reported that the Messenger of Allah ﷺ said, ‘A believing man should not hate a believing woman. If he dislikes something in her character, he should be pleased with some other – or another – trait of hers.’ It is said that it means that he should not hate her completely which might move him to divorce her. He should forgive her bad because of her good and overlook what he dislikes on account of what he likes. Makḥūl said, ‘I heard Ibn ‘Umar say, “A man does the istikhārah, asking for good from Allah and He chooses for him, and then he is angry with his Lord. It is not long before he sees that in the end it is better for him.”’

Ibn al-‘Arabī mentioned from Abu-l-Qāsim in Mahdia from Abu-l-Qāsim as-Sayūrī that Abū Bakr ibn ‘Abd ar-Raḥmān said, ‘Shaykh Abū Muḥammad ibn Abī Zayd had position and recognition with regard to knowledge and the dīn. He had a wife who was a bad companion and she was lax with respect to his rights and injured him with her tongue. People spoke to him about her and he was criticised for being patient with her. He used to say, “I am a man to whom Allah has given full blessing in the health of my body, recognition and what I own. Perhaps she was sent as a punishment for my wrong actions and I fear that if I divorce her a worse punishment may descend on me.”’

Our scholars said, ‘This is evidence for the dislike of divorce even though it is permitted.’ It is related that the Prophet ﷺ said, ‘Allah does not dislike anything He has allowed except for divorce and eating. Allah dislikes full intestines.’

20 If you desire to exchange one wife for another and have given your original wife a large amount, do not take any of it. Would you take it by means of slander and outright crime? 21 How could you take it when you have been intimate with one another and they have made a binding contract with you?

Since the previous āyah dealt with the ruling of divorce instigated by the wife, and the husband taking property from her, Allah follows that by mentioning divorce instigated by the man. It is clear that He means divorce without there being disobedience or bad companionship and so he cannot ask her for any property.

Scholars disagree about what happens when a couple want to divorce and one of them displays bad companionship and disobedience. Mālik said that the husband can take from his wife if she instigates the divorce but does not mention [whether he can] when he instigates it. Most scholars say that that is not permitted to take money unless the disobedience is hers alone and she asks him for divorce.

and have given your original wife a large amount,

This āyah indicates the permission to give a large amount as a dowry because Allah would only use something permissible as an example. ‘Umar said in a speech, ‘Do not be excessive in the amount of a woman’s dowry. If she is noble in this world or in taqwā of Allah, the Messenger of Allah ﷺ would have been more entitled to that than you, and none of his wives or daughters was given a dowry of more than twelve ūqiyyahs.’ A woman got up and said, ‘‘Umar! Allah gives to us and you forbid us! Does not Allah say: “… and have given your original wife a large amount do not take any of it”?’ ‘Umar said, ‘The woman is right and ‘Umar was wrong.’ In one variant, ‘‘Umar bowed his head and said, “Everyone has more understanding of fiqh than you, ‘Umar!”’ Another has, ‘The woman is right and the man is wrong. Allah is the One from whom help is sought.’ He dropped his objection.

Abū Ḥātim al-Bustī transmitted with a sound isnād that Abu-l-‘Ajfā’ as-Sulamī said, ‘‘Umar said in a speech to the people…’ as far as ‘more than twelve ūqiyyahs.’ He did not mention the woman standing up to address him. Ibn Mājah transmitted it in his Sunan from Abu-l-‘Ajfā’ and added after mentioning the ūqiyyahs continued, ‘A man may feel so burdened by his wife’s dowry that this engenders his animosity towards her and he says, “You cost me everything I own (lit. the strap of the water-skin or the sweat of the water-skin)!” I was an Arab man and did not know what was meant by the strap of the water-skin or the sweat of the water-skin.’ Al-Jawharī said that ‘strap (‘alaq) of a water-skin’ is a dialectical form of the sweat (‘araq) of a waterskin’.’ Someone else said that ‘alaq is the string which ties a water-skin. So he is saying, ‘You have cost me everything, even the string that ties the water-skin.’ ‘Araq is the liquid in a waterskin. One uses the expression in saying, ‘I tired myself out for us and imposed on myself until I sweated like a water-skin,’ meaning its flow. It is said that they used to provision themselves with water and tied it to camels to carry, and it was heavy on their backs. This explains both expressions.

Al-Aṣma‘ī said, ‘The sweat of a water-skin is an expression which conveys hardship. I do not know its origin.’ Al-Aṣma‘ī further said, ‘I heard Ibn Abī Ṭarafah, one of the most eloquent men I have seen, say, “I heard our shaykhs say, ‘I have met the sweat of the water-skin from so-and-so,’ and he meant hardship.” He quoted to me from Ibn Aḥmar:

It is not counted an insult, when her pardon Is the sweat of the water-skin on a tired camel.

Abū ‘Ubayd said, ‘He means that he hears a word which angers him and is not an insult and the person is punished by it and for him it is like the sweat of a water-skin. He uses a different word for water-skin for the sake of the poem. Then he said ‘a tired camel’. It is as if it means that the water-skins are hung on the camel in their journeys. This idea is like what al-Farrā’ related. He claimed that in the desert on their journeys they stocked themselves with water and they would hand it on the camels and take it in turns. That entailed toil and hardship on the back. Al-Farrā’ used this explanation in hanging water-skins with lām.

Some people say that it does not give permission to have excessive dowries because Allah uses the amount of a ‘qinṭār’ simply as an example, as if he saying, ‘Even if you were to give this large amount which no one is given.’ This is like the words of the Prophet ﷺ, ‘Anyone who builds a mosque, even one the size of the nest of a sand grouse, Allah will build a house for him in the Garden.’ It is known that there is no mosque the size of the nest of a sand grouse.

When Ibn Abī Ḥadrad came to the Prophet ﷺ to ask for his help with paying a dowry, the Prophet ﷺ asked him about it and he said that it was two hundred. The Prophet ﷺ became angry and said, ‘It is as if you are cutting gold and silver from surface of al-Ḥarrah or a mountain.’ Certain people deduced from this that it is forbidden to give excessive dowries. This is not necessary. The Prophet ﷺ objected to this man, not as an objection to a large amount of dowry, but because he was poor in that state and needed to beg and ask for help. This is agreed to be disliked. ‘Umar gave Umm Kulthūm bint ‘Alī, the daughter of Fāṭimah, a dowry of 40,000 dirhams.

Abū Dāwud reported from ‘Uqbah ibn ‘Amr that the Prophet ﷺ asked a man, ‘Do you want me to marry you to so-and-so?’ ‘Yes,’ he replied. He said to the woman, ‘Do you want me to marry you to so-and-so?’ ‘Yes,’ she replied. So he married them to one another. The man consummated the marriage without allotting her a dowry and did not give her anything. He was one of those who had been at al-Ḥudaybīyah and had a share at Khaybar. When he died, he said, ‘The Messenger of Allah ﷺ married me to so-and-so and I did not allot her a dowry or give her anything. I testify that I have given her my share at Khaybar as her dowry.’ She took his share and sold it for 100,000.

Scholars agree that there is no limit on the maximum amount for a dowry because of this āyah. They disagree about its minimum. That will be discussed in āyah 24. The definition of qinṭār was mentioned in Āl ‘Imrān.

Ibn Muḥayṣin recited ‘ātaytumu-ḥdāhunna’ with the alif connected to ‘iḥdāhunna’. It is a dialectical usage. [POEMS]

do not take any of it.

Bakr ibn ‘Abdullāh al-Muzanī said, ‘The husband used not to take anything from the wife divorced by a khul‘ according to the words of Allah: “do not take.” Then it was abrogated by the āyah in al-Baqarah.’ Ibn Zayd and others said that it is abrogated by the words in al-Baqarah: ‘It is not lawful for you to keep anything you have given them.’ (2:229)

The sound position is that these āyahs are both āyahs of judgment and there is no abrogation or abrogated in them. They support one another. Aṭ-Ṭabarī says that it is an āyah of judgment and there is no sense to the words of Bakr. If you wish, it is about gifts, and the Prophet ﷺ allowed Thābit to take from his wife what he had given her.

How could you take it when you have been intimate with one another?

The reason for the prohibition against taking it back is that they have been intimate together. Someone said that ‘ifḍa’’ (being intimate) is being with her under the same blanket, whether or not sexual intercourse took place. Al-Harawī related that and that is the position of al-Kalbī. Al-Farrā’ said that it refers to when a man has been alone with his wife and has had sexual intercourse with her. Ibn ‘Abbās, Mujāhid, as-Suddī and others said that in this āyah it means sexual intercourse. Ibn ‘Abbās said that Allah is noble and uses an allusion. The linguistic root of ifḍā’ is mixing together. A mixture is called ‘faḍā’. A poet said:

I said to her, ‘My aunt, you can have my she-camel. It makes a mixture (faḍā) in my bag with raisins.

People who described as fawḍā are mixed together without a leader.

Taking the meaning to be ‘being alone together’, even if there is no sexual intercourse, does that mean that the dowry is confirmed by that or not? Our scholars disagree about it, taking four positions: that it is confirmed by the simple fact of being alone together; that it is only confirmed by sexual intercourse; that it is confirmed by being alone in the house where a wife is given to her husband; and that there is a difference between her room and his room.

The sound position is that it is confirmed by simply being alone together. That is the position of Abū Ḥanīfah and his people. They say, ‘When he has been properly alone with her, the full dowry is obliged as well as ‘iddah, whether or not he consummates the marriage.’ That is based on what ad-Dāraquṭnī related from Thawbān that the Messenger of Allah ﷺ said, ‘Anyone who removes the veil of a woman and looks at her must pay the dowry.’ ‘Umar said, ‘When he closes the door, lowers the curtain and sees her private parts, payment of the dowry is obliged, she must observe ‘iddah and she inherits.’ ‘Alī said, ‘When he closes the door, lowers the curtain and sees her private parts, the payment of the dowry is obliged.’ Mālik said, ‘When he stays a long time with her, like a year, and they agree that there was no touching, and she asks for her full dowry, she has it.’ Ash-Shāfi‘ī said, ‘She has no ‘iddah and receives half the dowry.’ This was discussed in al-Baqarah.

they have made a binding contract with you

There are three things said about this. It is said that it is what is meant by the words of the Prophet ﷺ, ‘Fear Allah regarding women. You take them as a trust of Allah and you are allowed access to their private parts by the Word of Allah.’ ‘Ikrimah and ar-Rabī‘ said that. The second is that it refers to the words of the Almighty: ‘Wives may be retained with correctness and courtesy or released with good will.’ (2:229). Al-Ḥasan, Ibn Sīrīn, Qatādah, aḍ-Ḍaḥḥāk and as-Suddī said that. The third is that what is meant is a verbal contract of marriage where a man says, ‘I have married’ and ‘I have the marriage contract.’ Mujāhid and Ibn Zayd said that. Some people said that it is a child. Allah knows best.

22 Do not marry any women whom your fathers married – except for what may have already taken place. That is an indecent act, a loathsome thing and an evil path.

Do not marry any women whom your fathers married

It is said that people used to marry their father’s wife with her permission after Allah revealed: ‘it is not lawful for you to inherit women by force.’ When this was revealed, it became unlawful in all cases, whether or not the marriage had been consummated, as the meaning of the term nikāḥ includes both the contract and sexual intercourse. When a father marries a woman or, indeed, has sexual intercourse with her outside marriage, she is unlawful to his son as will be explained.

In the words ‘whom your fathers married’, it said that ‘mā’ (tr. ‘whom’) here means women. It is said that it means the contract, in other words that such a marriage is void and contrary to the dīn of Allah since Allah has given judgment regarding the manner of marriage and detailed its preconditions. That is what aṭ-Ṭabarī prefers. ‘Min’ is connected to ‘marry’ and ‘mā nakaḥa’ is a verbal noun. He said that if it had meant ‘Do not marry women whom your fathers have married,’ it would be obliged to have “who” (man) and not “what” (mā). According to this, the prohibition is about marriage in the unsound manner of your fathers. The first is sounder, because ‘mā’ (what) can mean ‘man’ (who), and the Companions took it to mean that. From it is deduced the prohibition against sons marrying their fathers’ wives.

The custom of some Arab tribes was that a man’s son would marry his father’s wife. That was a binding practice among the Anṣār and permitted among Quraysh with mutual consent. ‘Amr ibn Umayyah married his father’s wife after his death and she bore him Musāfir and Abū Mu‘ayṭ, and she had Abu-l-‘Īṣ and others from Umayyah. The sons of Umayyah were both the brothers and uncles of Musāfir and Abū Mu‘ayṭ.

Another example of it is Ṣafwān ibn Umayyah ibn Khalaf who married his father’s wife, Fākhitah bint al-Aswad ibn al-Muṭṭallib ibn Asad. Umayyah was killed while married to her. Another example was Manẓūr ibn Zabbān who married Mulaykah bint Khārijah who had been married to his father, Zabbān ibn Zayyār. Another example is Ḥiṣn ibn Abī Qays who married his father’s wife, Kubaysha bint Ma‘n and al-Aswad ibn Khalaf who also married his father’s wife.

Al-Ash‘at ibn Sawwār said, ‘Abū Qays died. He was one of the righteous men of the Anṣār. His son Qays proposed to his father’s wife. She said, “I think of you as a son. I will go to the Messenger of Allah ﷺ to consult him about it,” and she went to him and told him and Allah revealed this āyah.’

Some Arabs used to marry their daughters. One of them was Ḥājib ibn Zurārah who became a Magian and did this. That was mentioned by an-Naḍr ibn Shumayl in Kitāb al-Mathālib. Allah forbade the believers to follow this custom of their fathers.

except for what may have already taken place.

This is what has passed and gone. Salaf are your forefathers and relatives. This is an absolute exception, meaning ‘avoid and leave what happened before.’ It is said that ‘except’ means ‘after’, i.e. after what already happened. This usage is seen in Allah’s words: ‘They will not taste any death there – other (illā) than the first one.’ (44:56) This means ‘after the first death’. It is said that it means ‘not what has already taken place’ as in the words: ‘A believer should never kill another believer unless (illā) it is by mistake,’ (4:92) meaning not by mistake either. It is said that there is a change of order in the āyah and it means: ‘Do not marry women your fathers married. It is indecent and an evil path, except for what already happened.’

It is said that the āyah contains an implication which means: if you do that, you will be punished for it, except for what was in the past.

That is an indecent act, a loathsome thing and an evil path.

This is a resulting grave censure which indicates that the forbidden action is very foul indeed. Abu-l-‘Abbās said, ‘I asked Ibn al-A‘rabī about what a ‘loathsome marriage’ is. He answered, “It is that a man marries his father’s wife when he divorces her or leaves her a widow. Such a man is called ‘ḍayzan’.”’

Ibn ‘Arafah said, ‘When a man married his father’s wife and she bore him a child, the child was called maqtiyy.’ The root of maqt means to be hateful from the verb, maqata, to hate. So the Arabs called a man who marries his father’s wife ‘maqịt’ (hated). Allah called this marriage ‘maqt’ (hateful and loathsome) since hatred is attached to the one who does it.

It is said that the meaning of the prohibition is forbidding a man from having sexual intercourse with any woman with whom his father had sexual intercourse, except for what happened in the past in the Jāhiliyyah in respect of women their fathers had fornicated with and were not actually married to. A son is permitted to marry a woman with whom his father fornicated and to have lawful sex in marriage with her. Ibn Zayd said that. He believes that the exception is connected and that it is a basic principle that fornication does not make someone unlawful as will be explained. Allah knows best.