Shari‘ah Ruling on Marrying a Person Who was Previously an Adulterer or an Adulteress (2) | Mahmoud Rizq    

PART (1) DISCUSSED an âyah (24:3) which apparently prohibits a Muslim from marrying a person involved in adultery or fornication. Scholars differ as to the meaning of yankiḥ, whether it means ‘to marry’ or ‘to copulate.  Each side of the controversy can marshal the arguments of some of our most respected scholars. We continue with the evidence and conclusions given by prohibiting scholars and proceed to a resolution of the matter.

In addition, the scholars who argue for the prohibition of believers marrying adulterers say that the Sunnah of the Prophet œ supports their position that the âyah speaks directly to marriage and that an adulterer may only wed an adulteress. On the authority of Abû Hurairah, the Prophet œ said:

The adulterer (fornicator) upon whom the prescribed punishment of adultery (fornication) has been administered may only marry his like (an adulteress / fornicator).

Commenting on this adîth, Imam Ibn ajar said in his Bulûq Al-Murâm:

“This adîth   is narrated by Ahmad and Abû Dâwûd through chains of transmitters rated trustworthy by adîth   scholars.” Thus, they argue, the aâdîth that reference the occasion of the revelation of the âyah indicate, in no unclear terms, that the allusion in the Text is to marriage (zawâj), not to sexual intercourse.

Imam Qurtubi (Al-Jâmi ‘ li Ahkâm Al-Qur’ân)

It is narrated from Ibn ¢Abbâs and those who learned from him that the term ‘yanki’ in the âyah refers to ‘wa’’ (to perform coitus). Since Ibn ¢Abbâs is among the most well-versed of the Companions in Quran explication, and since he is also an authority on the Arabic language, his interpretation of the term ‘yanki’ must have agreed with the understood conventions of Arabic eloquence (al-uslûb al-¢arabi al-fai). Hence, the interpretation of Ibn ¢Abbâs belies the assertion that the conventions of Arabic language do not uphold the interpretation of the term ‘yanki’ as referring to copulation (wa).

Imam Ibn Al-Qayyim (Zâd Al-Ma’âd)

As for the act of marrying an adulteress, it is clearly proscribed (disallowed, forbidden) in Sûrat Al-Nûr (24). In this Sûrah, Allah states that the one who marries an adulteress is either an adulterer himself or a mushrik; i.e., either he believes in, and acts upon, Allah’s command in this matter or he disbelieves in, and disregards it, thus becoming a mushrik. If one, however, believes in the obligation (wujûb) of the said divine command upon him but still acts contrary to it, he becomes an adulterer.

Moreover, Allah concludes the âyah with a statement that indicates clearly that intermarriage between a chaste person and an adulterous person is prohibited:

and such marriage is forbidden for the believers.

There is no doubt that the claim that this âyah is abrogated by verse 32 of Sûrat Al-Nûr (24) is weak. Even weaker than this is to interpret the word ‘yanki’ occurring in the âyah as meaning ‘to fornicate.’ For if we were to accept such interpretation, the meaning of the âyah will be as follows: An adulterer should have illicit sex only with an adulteress or a mushrikah; and an adulteress shall commit adultery only with an adulterer or a mushrik—a nonsensical interpretation, from which the Book of Allah should be preserved.

Furthermore, both the wording and context of the âyah rule out the possibility that the âyah refers to a woman who is both mushrika and an adulteress. How could such an interpretation be when we know that Allah has made marrying free women (arâ’ir) and bondwomen (ima’) conditional upon their being chaste (muḥṣanât), as per His saying in âyah 3 of Sûrat Al-Nisâ’ [The conditionality of a woman’s chastity is not explicitly mentioned in Sûrat Al-Nisâ’, 4:3].

Shaykh Muhammad Al-Amin Al-Shinqiti (Adwâ’ Al-Bayân)

One aspect of the bayân (expression of meaning and communication of intent of Allah’s words) of the Quran is that some scholars may posit an interpretive view on a certain âyah. This same âyah, however, may include a qarîna (circumstantial evidence—that is, a word or a phrase in the Text that helps the reader understand the meaning and intent of the Text) that rules out such an interpretive view. The present âyah is one such example of this characteristic of the bayân of the Quran.

Scholarly opinion has differed over the interpretation of this âyah. Some say the word ‘yanki’ (marry) occurring in the âyah refers to the act of sexual intercourse (in the sense of adultery, or zina, fornication). Others say the term ‘yanki’ signifies a marriage contract (nikah, zawaj).

As regards this latter opinion, it is disqualified by a qarîna included in the âyah itself; namely, the mention by Allah, in the same âyah, of the terms ‘mushrik’ (idolater) and ‘mushrika’ (idolatress), for a Muslim man guilty of zina is not allowed to wed a mushrika, as per the statement of Allah:

Moreover, you shall not marry idolatrous women until they believe in Allah alone. [Sûrat Al- Baqarah, 2:221]

Likewise, a Muslim adulteress is not allowed to take a mushrik man for a husband, as indicated in the Quran:

Nor shall you marry your believing women to idolatrous men until they believe in Allah alone. [Sûrat Al-Baqarah, 2:221]

Now, the fact that Islam categorically outlaws intermarriage between Muslims and mushrikin (idolaters) indicates that the term ‘yanki’ (marry) in the âyah  refers to the act of sexual intercourse—in the sense of adultery—not in the sense of  a marriage contract (nikâ). This is because the latter interpretation (marriage contract) is irreconcilable with the mention of the terms ‘mushrik’ and ‘mushrika’ in the same âyah.

So far then, we are left with a situation in which scholarly opinion is divided, as a separate question, on the legal status of the act of marrying a person who has previously fornicated.

Resolution

Now, let us evaluate the arguments of each side on the meaning of the present âyah.

Ibn Al-Qayyim’s statement (that the view that the âyah , specifically the word ‘yankisignifies ‘coitus’ does not behoove the dignity of the Quran) is dismissed by the fact that such an authority of the caliber of Ibn ¢Abbâs, whose profound knowledge of the Quran and the Arabic language is universally recognized, in fact, subscribed to precisely this interpretation. I am certain that Ibn Al-Qayyim did not doubt for a moment Ibn ¢Abbâs’ immense veneration for the Quran.

Commenting on Ibn ¢Abbâs’ interpretation of the term ‘yanki’ occurring in the âyah, Imam Abû Bakr ibn Al-¢Arabi remarked: “This is a sound interpretation.”

As for the view expressed by Ibn Al-Musayyab and Imam Al-Shâfi¢i that âyah 3 of Sûrat Al- Nûr (24) is abrogated by âyah 32 of Sûrat Al-Nûr (24), it is far-fetched. According to the established juristic principles of Imams Al-Shâfi¢i, Mâlik, and Amad, a general Text (¢am) may not abrogate a particular Text (khâṣ). Moreover, a khâṣ Text overrides an am Text absolutely, whether the khâ is revealed before or after the ¢am.

In addition, it is well known that âyah 32 of Sûrat Al-Nûr (24)

Moreover, let the unwed among you marry, and also the righteous of your bondmen and bondwomen. [Sûrat Al-Nûr, 24:32]

is of a more general application than is âyah  3 of Sûrat Al-Nûr (24).

A man who fornicates shall not marry anyone but a woman who fornicates or an idolatress. And as for the woman who fornicates, none shall she marry but a fornicator or an idolater—and such marriage is forbidden for the believers. [Sûrat Al-Nûr, 24:3]

Hence, âyah 32 of Sûrat Al-Nûr (24) cannot possibly be said to abrogate âyah 3 of Sûrat Al-Nûr (24). Only the principles of the legal school of Abû Hanifah allow for such a conclusion.

Having said this, there is no doubt that this âyah (Sûrat Al-Nûr, 24:3) is one of the most perplexing passages of the Quran. This is because to say that the term ‘yanki’ denotes ‘to marry’ does not sit well with the appearance in this âyah of the terms ‘mushrik’ and ‘mushrika’. On the other hand, maintaining that the term ‘yanki’ means ‘to copulate’ flies in the face of the aâdîth   related to the occasion of revelation of the âyah , which leave no doubt that the term ‘yanki’ in the âyah  means ‘to marry’!

As far as I know, there is only way out of this Textual difficulty, which is not wholly free from arbitrariness. It goes as follows:

The soundest position according to legal theorists (al-uuliyyûn), as expounded in the treatise Al-Furqân of Ibn Taimiyya who ascribed the view to eminent authorities in the four schools of fiqh, is that when dealing with Texts comprising what is known in Arabic as alalfâ  al-mushtaraka (equivocal terms), one should allow all the possible meanings that such Texts bear.

Now, the term ‘yanki’ is an equivocal term (laf mushtarak), which means either ‘to copulate’ (or to perform coitus) and ‘to wed.’ Thus, and based on the foregoing juristic principle regarding alalfâ al-mushtaraka, the term ‘yanki’ in the âyah should be held to mean both ‘to marry’ and ‘to copulate.’ That being said, the interpretive problem caused by the terms ‘mushrik’ and ‘mushrika’ mentioned in the âyah can be solved by interpreting the term ‘yanki’ as meaning ‘to copulate.’ And Allah knows best.

However, one should know that the majority of the people of knowledge permit marrying a person previously an adulterer or an adulteress, and that the scholars who prohibit such a marriage contract are in the minority.

Know also that allowing a chaste man to marry a reformed adulteress, or the reverse, doesn’t necessarily make such man a “cuckold” (dayyûth), a man who condones his wife’s infidelity. For he has married her in order to protect her and prompt her along the path of chastity by words, deeds, and strict supervision. And if she should happen to become involved in a depraved act without his knowledge and in spite of his vigilance, then that doesn’t render him a dayyûth, nor should he be blamed for it.

I for one, recommend marrying chaste, religious women and men, for there are a wealth of âyahs and aâdîth encouraging this practice.

And Allah knows best.

 

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5 Comments

  • Hmmmmm and what is someone has made tawbah? I know lots of girls who lived a promiscuous life, and made tawbah, and Allah SWT sent them virgin husbands. Tawbah is much stronger than someone’s interpretation of an ayah.

  • You absolutely have to go by the correct interpretation. What Allah has made haram and halal does not go by feelings.

    In the fiqhi definition, one that has repented and stopped committing zina (unlawful sexual) is not considered a zani. Also, in the fiqhi definition, one is considered a virgin (bikr) as long as never married. Adultery, with the death penalty, applies to someone that was previously married, not neccessarily someone currently married.

  • Ok Lama. Your point is strong and I believe the acceptance of Tawbah is in the hand of Allah and if someone make it then who we are to judge it, I partly agree with you however, what is the exact point of debate here? Is it about Zina or Virginity?. If it is about Zina, then we have to differentiate Zina as an action and Zina as a character sticking with a person who is commeting Zina in the past and still doing the same action. But if we are discussing virginity, the matter is really different since a girl could loose her virginity for several reasons. To me, if a person is commiting Zina and still continue, then I would say go away from my daughter or son which means better to look for another person. But if a person commited Zina in the past and stopped with Tawba (this is what I agree with Lama in), then may alah accept his/her Tawba and bless him/her with good wife/husband. PLEASE CONSIDER THIS AS A PERSONAL VIEW AND NOT FATWA IN ANY MEANS, PLEASE DO YOUR HOMEWORK AND SEEK BETTER UNDERSTANDING OF THIS TOPIC. If you are reading this sentence, then thank you very much for your time and patience.

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