The Moral Space of Marriage in The Holy Quran

The Moral Space of Marriage in The Holy Quran:

“Relation between Spouses” from the Qura’nic Perspective and the Juristic Reading

By : Hend Mustafa *

Contemporary Muslim woman is suffering a real crisis with the entire components of the historical culture of the Muslim community. The culture is intentionally blocking her in an inferior position within the social and humanitarian ladder, and is even seeking to perpetuate this situation using all its moral authority on top which are the traditions, customs and laws.  The branches of this culture, and among the most seriously impacting on the suffering of women, are the historical/ religious branches, represented in the form of the religious speeches and the historical human readings of religion, and in its core is the jurisprudence system that legalizes the religious provisions into specific code of rulings. 

    We may differ or agree on the correctness of the process of inference adopted in inferring the specific rules and provisions that deal with the issue of “women”, and whether these rules are technically valid and meeting the sound efficient conditions for inference, diligence and analogy.   There is always an obscure area, that lies within the formulation and assessment method applied for these provisions; and this area is what we call “the spirit of the religious discourse”.  This area represents the moral values’ abstract side of the Qur’anic discourse that is mostly huge, vast and significant. It is an integral part which absence will result in wrong inference and reading processes, and will limit itself to a minor part of the Qur’anic text.  As from a qualitative level, it will stop at the level of commanding, forbidding and exhortation types of speech that are considered the weakest levels, while the Holy Qur’an is always connecting the legitimacy of actions with the spiritual moral side, in many cases.

 The moral aspect of the Qur’anic discourse has a colossal importance especially when it comes to the issue of “women”.  Missing this moral side in the speech will lead to extremely serious results;  the target meaning of a certain speech will turn to mean its complete opposite, and will hence create a wide paradoxical gap between the Qur’anic discourse and the juristic discourse.   Therefore, it is the purpose of this essay is to analyze and elaborate such moral missing sides in the Qur’anic speech, and to raise and clarify an important and eternal question:  how can the general religious and cultural discourse include the spirit of the Qur’an along with its moral goals, inclinations and commandments that form an essential part of the legitimacy of the speech? .    

This paper tries to answer this question through reflecting upon the Holy Wise verses that deal with the relationship between men and women labeled in the Qur’an under the discipline of “marital status” while focusing on the status-quo of “marriage” in particular, and the creation of everything in pairs in general.  The “matrimonial” relationship is a spacious topic that is inclusive of an edifice of Qur’anic directives and provisions, which – in their composition and goals – are based on encompassing all the sides of morale of the human psyche.  In this sense, our paper uses the linguistic: semantics, syntax and morphology – as its tools and means, through conducting a sort of “dialogue” with the Qur’anic words and “structure” that evolve around the marital issues, from all its multiple- folds.

This paper tries as well to shed light on the way “Marriage” has been tackled, addressed and treated in the books of Islamic jurisprudence.  The search uncovers the existence of a gap between the two discourses: The Qur’anic, and the human historical, in an attempt to reach conclusions on how to elevate the legal juristic treatment to reach the sublime higher levels of the encompassing divine legalization.

First, The Moral Space in the Qur’anic Discourse:

One of the authentic inherent characteristics of the Qur’anic discourse is the way it addresses the human soul.  It is a speech that is attentive and encompassing of all the human soul’s inclinations, knows how to reach them, through addressing the mind and reason sometimes, and through addressing the senses and emotions in other times; the fact that has been expressed in the Qur’an itself more than once; as the Almighty Says, “Allah has sent down the best statement: a consistent Book wherein is reiteration. The skins shiver there from of those who fear their Lord; then their skins and their hearts relax at the remembrance of Allah. That is the guidance of Allah by which He guides whom He wills.  And one whom Allah leaves astray – for him there is no guide.” ( Az-Zummar, 23).   The deep psychological effect of the Qur’an reflects the divine speech’s full encompassing knowledge of the special nature of the addressee: Man; his cognitive sources and formation where the physical entity (body) blends with the mental (spirit).   “ That is the Knower of the unseen and the witnessed, the Exalted in Might, the Merciful, Who perfected everything which He created and began the creation of man from clay. Then He made his posterity out of the extract of a liquid disdained.  Then He proportioned him and breathed into him from His [created] soul and made for you hearing and vision and hearts; little when you are grateful.”  (As-Sajda, 6:9).

The Divine compass of the human nature has found its significances – not only in the way the provisions and directives are being formulated and communicated to the human psyche – but also in the pattern they were formulated; where they took account of the humanitarian dimensions of the body, mind and heart, producing a ruling that is fully satisfactory and comprehensive of both: the innate inward factors, and the realistic outside circumstances.   Ponder over what Allah SWT says about Inheritance :  “And when [other] relatives and orphans and the needy are present at the [time of] division, then provide for them [something] out of the estate and speak to them words of appropriate kindness.” (Women: 8). 

Although the issue of inheritance is one of the illicit and strictly defined topics within the Qur’anic discourse, the Holy verse draws for us a scene that lives up to the soft hearts.  It is when the time of apportionment of the inherited wealth comes, where non-eligible persons – depending on the legally valid ruling – are present, yet they are considered eligible due to their poverty and being orphans, the fact that stretches the legitimate base to include – as an inseparable part – the moral ethical authentic dimension related to the situation.  Hence the command comes to satisfy these poor people not only by giving them money “provide for them“, but also by speaking with them in a kind manner “and speak to them words of appropriate kindness“.

Here we can cite another example of the Qur’ans lucid statement.  The Almighty says, “And test the orphans [in their abilities] until they reach marriageable age. Then if you perceive in them sound judgment, release their property to them. And do not consume it excessively and quickly, [anticipating] that they will grow up. And whoever, [when acting as guardian], is self-sufficient should refrain [from taking a fee]; and whoever is poor – let him take according to what is acceptable. Then when you release their property to them, bring witnesses upon them. And  Sufficient is Allah to take All account ”. (An-Nisaa’,6).   Once more, realize how the explicit verdict that forbids eating the orphans money has been formulated, consequently it puts into account – deeply to the core – the Issues of greed, destitution and psychological need, where it treats the first by compelling to chastity, and the second by abstinence, to allow the poor guardian who is in charge of the orphans’ wealth, to ensure him his pension in “an adequate portion”.

Here we can also cite an educational reference for the majority of believers: adherence to the values, morals and ethics; the aspects that the legal human stipulated customary laws may neglect or miss (since the human-made laws only focus on what is procedural and formal), that’s why Allah SWT highlights and stresses on the moral dimension in a more universal and extensive base that compensates and complements the inadequacy or shortcoming that the human-made laws might suffer.

Likewise, we realize – in this context – how the Islamic guidance trespasses the human rationing lapses associated with the limited cognitive capabilities of Man.  The Islamic guidance refines and guides the human consciousness and deeply hidden intentions through an eloquent guiding speeches and imperatives.  In the Bukhari narrated hadeeth, Says Abdullah bin Muslima from Hisham from his father from Zainab bint Abu Salama from Umm Salama (may Allah be pleased with her) that the Messenger of Allah (Peace and Blessing be upon him) said, “Verily, I am only a human, and the claimants bring to me (their disputes); perhaps some of them are more eloquent of his evidence than others, so I judge according to what I hear from them. So, he whom I, by my judgment, (give the undue share) out of the right of a Muslim, he should not take it, for I’m in fact is cutting for him a portion of (Hell) Fire”.  [Al-Bukhari and Muslim].

This divine guidance resonates with the nature of the special relationship between Allah SWT and the believers, as well as it connects the believer with the majority of other believers.  Faith, as a relation, is rich and complexed in dimensions: it combines the procedural and the moral, the partial and the universal, the general and the specific. This is clearly exhibited in the “love” relationship between Allah SWT and His human slaves, as drawn in the verses of Qur’an, repeatedly in numerous traces:

“And those who believe are stronger in love for Allah” (The Cow: 165)

“Allah will bring forth [in place of them] a people He will love and who will love” (Al-Maa’eda, 54).

The sincere love relationship between Allah SWT and His believing slaves is a fact of reality, and is a part of Faith that transcends the limited space of the legal rulings, commands and prohibitions, even when the two are sometimes related.  The Qur’an includes two expressions: ” That Allah loves..” and “Allah does not love”, where the repetition is significant and meaningful;  Allah loves nine categories of believers: the ones who do good[1], the repenting[2], the purified[3], the pious[4], the patient[5], the relying and trusting (Allah)[6] , the equitable and just [7], the purifying [8], “.. those who fight for His Cause in solid lines, like a well compacted wall”[9].  The “ones who do good” (al-Mohseneen) are repeated the  highest number of times, as been repeated five times, followed by the “righteous” and “equitable” (al-Moqseteen) which is repeated three times each.  The nine qualities express, mostly and basically, very special bonds and ties with Allah SWT, and has their social applications.   Then comes al-‘Ihsan (doing something perfectly) : (to worship Allah as if you see Him, so if you do not see Him, He sees you….the  hadeeth”,  on top of these reflections and bonds, along with repentance, piety, purity, patience, reliance on Allah, and equity.. etc.

On the other hand, there are nine other categories that Allah SWT does not love.  These are: the transgressors[10], the corruptors[11], the atheists[12], the oppressors[13], those who are boastfully proud[14], the betraying[15], “Allah does not love publicity of bad things”[16], the extravagant[17] , the jubilant arrogant (who are extravagantly joyful)[18].

These attributes were mentioned in an order arrangement in the Holy Quran, the first five of which are similarly repeated; each is repeated three times.  They represent the negative hateful characteristics which entail direct harm on the social arena between human beings each other (i.e aggression, injustice, corruption , treachery and arrogance …).

Assurance of love to these, or negating it from the others comes as a kind of mental and moral reward or punishment, which is being conducted in the Hereafter, either in the form of a physical reward in paradise, or physical punishment in Hellfire, or may take the form of prescribed penal in the worldly life performed by the authorities.  Hence, the mental punishment area is deeply rooted within the core of the special relationship between Allah and the individual believer; in both the psyche and heart: “Indeed, the hearing, the sight and the heart – about all those [one] will be questioned.” (AL ‘ Israa’ 36).

“Indeed in that is a reminder for whoever has a heart or who listens while he is present [in mind].” (Qaf, 37).

“So have they not traveled through the earth and have hearts by which to reason and ears by which to hear? For indeed, it is not eyes that are blinded, but blinded are the hearts which are within the breasts.” ِ (Al-Hajj, 46).

The Qur’an constructs an edifice of provisions and directives that are fully knowledgeable of the essential mental and moral dimensions of the human order.  It is also mindful of the different humanitarian situations organized by the Divine statement, maintaining that the humanitarian act must take into account – in turn – within its social surroundings, these installed dimensions towards which Allah SWT directs and guides.  In the Islamic system, the human action implies deep and clear purposes and principles tightly connected with the Islamic law-giver universal objectives; in monotheism, purification and earth-construction.  In light of this, an action is multiply folded; in its motives and objectives.  If one applies this, every act will be connected with its targeted purpose; planting a tree, for example – as a constructive act – will become an authentic act of faith that entails believing in the importance of work for the purpose of maintaining life, guarding of the human self, constructing earth and anticipating the reward in the Hereafter.. This may go much further, if we apply this on the sexual act, for example, it will become an act that has transcending dimensions of moral authentic faith, as in the Prophetic hadeeth: “Indeed, in man’s sexual Intercourse (with his wife), there is a charity”.

Combining the human logic rational dimensions side by side with the psyche moral dimensions is the fact that gives the Qur’an the attribute of being: “Insights from your Lord and guidance and mercy for those who believe”[19]. Given that “insights” is mentioned in the plural form.  The Qur’an opens up the hearts and minds, satisfy their striving needs, and is a source of guidance, tranquility and mercy.

The Divine Jurisdiction entails mercy, and mercy is the essential base on which every human act is founded, as long as Man is fully aware of the rich Wisdom of the Divine guidance. Whereas once the human act deviates away from the divine guidance; an act of mercy will turn into an act of cruelty, and an act of giving will turn into an act of stinginess.  Compare the verses where Allah SWT addresses His Prophet (Peace and blessings be upon him):

“So by mercy from Allah, [O Muhammad], you were lenient with them. And if you had been rude [in speech] and harsh in heart, they would have dispersed from around you. So pardon them and ask forgiveness for them and consult them in the matter. And when you have decided, then rely upon Allah . Indeed, Allah loves those who rely [upon Him].” (A’li- ‘Imraan- 159)..”

Compare this with the following verses where Allah SWT describes the Children of Israel:

“So for their breaking of the covenant We cursed them and made their hearts hard. They distort words from their [proper] usages and have forgotten a portion of that of which they were reminded. And you will still observe deceit among them, except a few of them. But pardon them and overlook [their misdeeds]. Indeed, Allah loves the doers of good.” (Al-Maa’eda – 13(.

The two bundles of verses are similar in the pattern of their division and the succession of the cause and effect.  They both use almost the same vocabulary, though the content and the results are contradicting.  Look at the elaboration in the table below.

The act in the first case is performed originally by the Divine, that pours mercy into the heart of the Prophet PBUH then it becomes lenient and encompassing to all people.  Allah SWT protected him (Peace and Blessings be upon him) against the harshness of the heart that might trigger discord.  Whereas in the second case, the act is ultimately human, that of the Children of Israel; they were oblivious of the Divine miracles and signs revealed to them, and hence they broke the covenant (With Allah).  Doing so made their hearts become full of harshness, so they dared to exceed Allah’s limits and forge the revealed words of Allah.  Spite of this, comes the Divine guidance that calls for pardoning and forgiveness for the minority of them who did not show treason to the Messenger of Allah (Peace and blessings be upon him).  Read the following verse, while applying this same logic: The Almighty says, “Say, “Who has forbidden the adornment of Allah which He has produced for His servants and the good [lawful] things of provision?” Say, “They are for those who believe during the worldly life [but] exclusively for them on the Day of Resurrection.” Thus do We detail the verses for a people who knows” (Al-A’raaf, 32).

On the contrary, the Almighty says,

“For wrongdoing on the part of the Jews, We made unlawful for them [certain] good foods which had been lawful to them, and for their averting from the way of Allah many [people].” (An-Nisaa’, 160). Hence, the human act which is void of the Divine guidance and acted “unjustly” necessitates deprivation and denial, using the same logic. 

Gaining the insights, guidance and mercy are attached to the adherence to mentioning Allah and to the true approaching and complete understanding of the Words of Allah:

“ There has come to you enlightenment from your Lord. So whoever will see does so for [the benefit of] his soul, and whoever is blind [does harm] against it. And [say], “I am not a guardian over you.” ( Al-An’aam, 104).

“And We gave Moses the Scripture, after We had destroyed the former generations, as enlightenment for the people and guidance and mercy that they might be reminded” (Al-qasass, 43).

Action/ Event	Transcendence of Mercy	Breaking the Covenant
The Doer	Allah (SWT)	The Children of Isreal
The Effect	You were lenient towards them	We cursed them and made their hearts harsh
The Direction	So pardon them and ask forgiveness for them and consult them in the matter.	So pardon them and overlook (their misdeeds)
The action / the negative event (unmentioned)	The harshness of the heart (And if you had been rude [in speech] and harsh in heart )	Remembering Allah (They forgot a big portion of what they had been reminded to remember)

Second, Matrimony in the Qur’anic Discourse:

When matrimony is mentioned in its absolute manner in the Qur’anic space, it entails numerous levels; starting from the cosmic level of the accurate physical regime, and extends to the living creatures, plants, animals and human beings.  Then we find its “unique” image exhibited in the relationship between the human male and female, where “marriage” status-quo is located in the core of this relationship.  This is what is being expressed through the Qur’anic discourse:

“And We created pairs of everything that you may remember (contemplate)” (Az-Zariyat, 49).

“Did they not look at the earth – how much We have produced therein from every noble kind?” (Ash-Shu’araa’,7).

” And it is He who spread the earth and placed therein firmly set mountains and rivers; and from all of the fruits He made therein two mates; He causes the night to cover the day. Indeed in that are signs for a people who give thought.” (Ar-Ra’ad,3).

” He created the heavens without pillars that you see and has cast into the earth firmly set mountains, lest it should shift with you, and dispersed therein from every creature. And We sent down rain from the sky and made grow therein pairs [plants] of every noble kind.” (Luqman, 10).

“In both of them there will be every kind of fruits in pairs.” (Ar-Rahman, 52).

 ” He created you from one soul. Then He made from it its mate, and He produced for you from the grazing livestock eight mates. He creates you in the wombs of your mothers, creation after creation, within three darknesses. That is Allah, your Lord; to Him belongs dominion. There is no deity except Him, so how are you averted?” (Az-Zumar, 6).

“That He created pairs, male and female” (An-Najm, 45)

Based on the above verses, Creation of the human male and female is a part and extension of the cosmic norm of living in pairs (marriage), as in the verse:

“And Allah created you from dust, then from a sperm-drop; then He made you mates. And no female conceives nor does she give birth except with His knowledge. And no aged person is granted [additional] life nor is his lifespan lessened but that it is in a register. Indeed, that for Allah is easy.” (Faater, 11).

By “living in pairs” and “marriage” we are tracing the meaning not the wording,  as in the Almighty saying, “that in the creation of the heavens and the earth and the alternation of night and day are Signs for men of understanding.” (‘Ali-‘Imran, 190).

When matrimony is being mentioned in the Qur’an, it comes – as we note – as one of the signs of God in His creation, and as one of His blessings on this creation, which is visible in the cascading verses of Surat An-Nabaa’, and the question it raises:

“Have We not made the earth a resting place?. And the mountains as stakes?, And We created you in pairs, And made your sleep [a means for] rest, And made the night as clothing. And made the day for livelihood….” The Surah. (An-Nabaa’, 6:11)-

Marital status has been added to the noble attributions in the Qur’anic discourse:

“ Did they not look at the earth – how much We have produced therein from every noble kind?.” (Ashu’araa’- 7)

“And you see the earth barren, but when We send down upon it rain, it quivers and swells and grows [something] of every beautiful kind” (Al-Hajj, 5)

Married life is the middle stage that lies between birth and death: “ And Allah created you from dust, then from a sperm-drop; then He made you mates” (Faater, 11)

Observe what the Almighty says where He SWT sums up the philosophy behind life: “And present to them the example of the life of this world, [its being] like rain which We send down from the sky, and the vegetation of the earth mingles with it and [then] it becomes dry remnants, scattered by the winds. And Allah is ever, over all things, Perfect in Ability.” (Al-Kahf, 45).

The descending of water brings life to earth, and the pairs had been implanted – as a sign of life, (as we read in the verses 10 and 5 of the two chapters of Luqman and Al-Hajj) before the aging where everything dries up and becomes turbulent and turns into yellow ashes scattered by the wind as a sign that marks the end of life.

“Matrimony” in this sense that extends to the rest of creations which Allah SWT created; inanimate, plants, animals and human beings, is one of the basic foundations of the universe and life, even the Prophet Noah, (peace be upon him) when he was on his way to resume a new episode of life after the sinking of his people, has been ordered to carry pairs of all creatures on his ship:

 “ It was, until when Our command came and the oven overflowed, We said, “Load upon the ship of each [creature] two mates and your family, except those about whom the word has preceded, and [include] whoever has believed.” But none had believed with him, except a few.” (Huud, 40).

When the word “mate” in the Qur’an is mentioned in the absolute sense, so it points to men and women equally:

“O mankind, fear your Lord, who created you from one soul and created from it its mate and dispersed from both of them many men and women. And fear Allah, through whom you ask one another, and the wombs. Indeed Allah is ever, over you, an Observer.” (Women: 1)

“It is He who created you from one soul and created from it its mate that he might dwell in security with her. And when he covers her, she carries a light burden and continues therein. And when it becomes heavy, they both invoke Allah, their Lord, “If You should give us a good [child], we will surely be among the grateful.” (Al-A’raaf- 189).

“And [yet] they learn from them that by which they cause separation between a man and his wife.” (Al-Bakkara- 102).

” Enter Paradise you and your spouse’s shall be glad”(Az-zukhruf- 70).

To identify those aspects of the concept as reflected in the general sense in these noble verses we have here outlined, we cited the following observations:

• Connecting the fact of pairing to all the living creatures in the universe, in addition to the material physics system of the cosmos itself, prove a kind of harmony between the human life and Nature in general, and this harmony exterminates and nullifies the conceptions that view Man in a corresponding or confronting position against Nature, and hence the human life will be seen as an extension and harmonious with a Cosmic-proven norm that lies within one ontological arena, characterized by: multitude, variations and relativity. Compare this level with another totally different ontological one; that’s of the Divine Existence, that is characterized by being: Absolute and One, as described in the Holy verses of Chapter (Al-‘Ikhlas – The Sincerity):  “Say, He is Allah, [who is] One, Allah, the Eternal Refuge. He neither begets nor is born, Nor is there to Him any equivalent.” (Al-Ikhlas)[20].
• By the same token, proving this cosmic norm for Man and all the other living creatures, as well as to the natural system, reflect a kind of harmony and integration between the aspects of the marital life from one side and the physical scope from the other, hence detaching the spiritual scope away from the ethical and values, and from the physical scope and its applications, deviates the “marriage” concept away from the spirit of the concept drawn by the Holy Qur’anic directives, as described by all the characteristics stated by the verses above.
• Pairing/ Marriage as we have elaborated here reflects a cosmic norm and life, as well as a beauty that’s rich with the qualities of dignity and delight which the Qur’an associated with the concept.
• The meaning of marriage – in its humanitarian limits – even when it entails a kind of difference, yet it also reflects a unity of nature and origin; for both parties have been created from the same soul, and both parties are being expressed in the Qur’an using the same word: “a mate”/ “a spouse”, the fact that makes it so difficult to specify the “type” of this soul that Allah SWT mentions in the beginning of the chapter of “Women”, and whether it was male (Adam) or female (Eve) (also as the Verse 189 of the chapter “Al-A’raf” may suggest). At the same time, it also reflects the hurling seeking of some people for assigning the lead either to the male or to the female.  Oneness of the origin has been expressed in the Qur’anic discourse more than once using the phrase “you are of one another”; the Almighty says, ” And their Lord responded to them, “Never will I allow to be lost the work of [any] worker among you, whether male or female; you are of one another.” (‘Ali-‘Imran, 195).  And says, “And Allah is most knowing about your faith. You [believers] are of one another.” (An-Nisaa’, 25).

This is an assurance of the initial humanitarian bonds that bind between the two genders and sets a framework for all kinds of bonds; legally or socially invented.

• Regarding the human pairing also, and within the marital relationship as one of its chains, treating the relation between the spouses from such approach will be considered as an initial confiscation from any perspective that looks to the relation from an equality or conflict aspect. Stating that the universe – with its nature of notorious complications and accuracy – is established on the principle of marriage, so the farthest connotations of the significances of the concept that can come to one’s mind are those that are related to: the similitude from one side, and the replacement or the conflicting contrast from another. And the closest significance will revolve around the meaning of “a kind of diversity that denotes richness and growth”, which sustains the continuation of life; and this is the interpretation intended by the verse:  “O mankind, indeed We have created you from male and female and made you peoples and tribes that you may know one another. Indeed, the most noble of you in the sight of Allah is the most righteous of you. Indeed, Allah is Knowing and Acquainted.” (Al-Hujurat, 13).

The difference between the male and the female – that is the first level of difference stated by the noble verse – is meant for the purpose of attractions and convergence, for production and “construction”, or what the verse stated regarding the concept of “acquaintance”, and by this same concept all things are being made of two different spouses that are integrated for the sustenance of the continuity of life’s pattern, and for assuring that the cosmic wheel will spin continuously till it reaches a definite-set end.  Matrimony by this concept does not give any room to talk about one gender being superior and the other as inferior, and is not related to the degree of faith, but it is rather only a mechanism for the conduct of life and construction by the best formation ever:

 ” We have certainly created man in the best of stature” (At-teen -4).

” Who created and proportioned. And Who destined and [then] guided” (Al-‘A’la, 2:3).

• In the universe, while all pairs live and dwell according to the accurate order of the Divine subdue, Man, by his special unique status has held the honor of accountability and free-choice, ” And We have certainly honored the children of Adam and carried them on the land and sea and provided for them of the good things and preferred them over much of what We have created, with [definite] preference.” (al-‘Israa’- 70).

“Indeed, we offered the Trust to the heavens and the earth and the mountains, and they declined to bear it and feared it; but man [undertook to] bear it. Indeed, he was unjust and ignorant.” (Al-Ahzaab- 72) : was in need to rules that are compatible with the special nature with which he has been created.

The marital relationship transcends from its just being a biological mating to a uniting integration between the intellect, soul and passion:

“And among His signs is that he created for you mates from among yourselves, that ye may dwell in them, and he put between you love and compassion; most surely there are signs in this for a people who reflect.” (Ar-Ruum, 21).

And above of all this, the marital relationship between humans demands a foundation of rules that guard against the unjust violation of one member of the relation over the marriage’s rules and conditions: “Verily, many of the stews aggress over each other except those who believe and do good deeds, and very few are they” (Saad, 24).

This is how the concept of pairing sets for us the perspective scope of “marriage”.  It defines the marriage borders according to the integrated Islamic framework; which rescued it from the narrow grounds of conflicts, to the vast grounds of integration; that’s open to the Universe and Nature, filling it with peace and nourishment, and filling the human self with purification and purity, and to pertaining Allah SWT the confession of ultimate Oneness, in opposition to the ideas of multiplicity, difference, and relativity of Man and the Universe.   Not only this, but it attaches and opens it up also to the Afterlife of eternal reward and punishment.

 Third:  Pairing/  Marriage: Levels of the Relationship:

Levels of the relationship between spouses in the Qur’anic discourse can be traced and defined according to overlapping conceptual circles, which can be described as follows:

1. A) Concepts related to the special- intimate relationship between man and woman, covering its sexual and psychological dimensions, such as: the dress, the plowing, confessing, tranquility, housing, compassion, and mercy, as per the noble verses:

 “It is Who created you from a single being, and of the same to her so when thou givest carried the light load upon Allah, their Lord while آتَيْتَنَا valid verily thankful” (Al-A’raf, 189).

“And among His signs is that he created for you mates from among yourselves, that ye may dwell in them, and he put between you compassion and mercy; most surely there are signs in this for a people who reflect.” (Ar-Ruum,  21) .

 “It has been made lawful for you the night preceding fasting to go to your wives [for sexual relations]. They are clothing for you and you are clothing for them.” (Al-Baqqara, 187).

“Your wives are a place of sowing of seed for you, so come to your place of cultivation however you wish and put forth [righteousness] for yourselves. And fear Allah and know that you will meet Him. And give good tidings to the believers.” (Al-Baqqara, 223).

“And how could you take it while you have gone in unto each other and they have taken from you a solemn covenant?” (An-Nisaa’, 21)

“Clothing” is a metaphor that denotes the close proximity and containment, where the combination of both the moral and the physical containment significances are clear in the word:

” O Children of Adam, We have bestowed upon you clothing to conceal your private parts and as adornment. But the clothing of righteousness – that is best. That is from the signs of Allah that perhaps they will remember.” (Al-A’raaf, 26).

The state of stillness and tranquility “al–sakan” completes the state of containment, where it enriches and extends its meaning with adding connotations of compassion, warmth and tranquility which the word carries within itself:  

” Indeed, your invocations are reassurance for them. And Allah is Hearing and Knowing.” (At-Tawba,  103).

As to :Exposure “‘Ifdaa’“, linguistically means the connection, and this word has been mentioned once in the Quran (verse 31 of Sura of Women) as a metaphor to denote the uniqueness of the intimate physical and psychological contact between the spouses.  Then comes the compassion “al–mawadda” to compliment the concept of connection that covers its positive dimensions.  Hence the “connection” here is that of love and compassion, whereas “plowing” (al–harth), which makes women a fertile land for agriculture, trespasses the direct sensory perception, and transfers the relationship to the vast space of life with its joyfulness, richness and continuity, and to all that lies beyond:

” Beautified for people is the love of that which they desire – of women and sons, heaped-up sums of gold and silver, fine branded horses, and cattle and tilled land. That is the enjoyment of worldly life, but Allah has with Him the best return.” (‘Ali-‘Imran, 14),

 ” Whoever desires the harvest of the Hereafter – We increase for him in his harvest. And whoever desires the harvest of this world – We give him thereof, but there is not for him in the Hereafter any share.” (As-Shura, 20).

Here we find that “Mercy” is the umbrella that units all the bonds of this relationship and protects it when the parties treat each other with mercy and kindness.

At this level, we find that the concepts combine between the sensory and the moral significances, in a very pure refined manner, concentrated basically in the internal individual senses and feelings, and hence defining certain psychological limits to a first level of the marital relationship levels where the voice of feelings dominate, and the individual dimension wins over the communal one.

It is worth considering here how the Qur’an addresses the sensual relationship between spouses, especially highlighting this mix between the physical and the moral dimensions which we have notices in the previous verses, and which are visible when we reflect over the following verses:

Then approach them	And seek what Allah has ordained for you	Al-Baqqara, 187
So keep away from wives during menstruation. And do not approach them until they are pure. And when they have purified themselves	Then come to them from where Allah has ordained for you.  Indeed Allah loves those who are constantly repentant and loves those who purify themselves.	Al-Baqqara, 222
Your wives are a place of sowing of seed for you, so come to your place of cultivation however you wish[21]	And put forth for yourselves.  And fear Allah and know that you will meet Him. And give good tidings to the believers.	Al-Baqqara, 223

These verses, which began with a direct signal to the physical relationship between the spouses, as set a complete picture of all the relationship facets and dimensions, in a way that canonizes, and frames it in a moral, belief and eschatological frame, that transcends it from a physical one to become an act of faith, that embodies the Islamic combination between the moral and the sensual sides.

This framing, at the same time, entails an exhortation and encouragement for the majority of believing men to cohabitate with kindness and goodness with their wives, in a way that escalates the intercourse to a higher humanitarian level, where it considers the physical, psychological status and desires of women, which are contained in the integrated whole command: “And live with them in goodness” (An-Nisaa’,  19).

(b) Concepts related to the Relationship from a “Familial/ general” Dimension:

Here the levels of the relationship start to open up to the outside; to the area of the communal dimensions, on their variations and differences, as well as the requirements of daily life, and the other parties of the family; that’s “the extension of the family” in its wider sense.  Here emotions were being set aside paving the way for a larger area for reason/logic dimensions, demonstrating concepts such as compromise, consultation, obedience, curatorship (al-Qowama), and disobedience (al-nushooz), goodness, reconciliation, kindness and honor:  

“When you divorce women and they have reached their set time, do not prevent them from remarrying their husbands if they both agree to do so in a fair manner.  Let those of you who believe in Allah  and the Last Day take this to heart: that is more wholesome and purer for you.  Allah Knows and you do not” (Al-Baqqara, 232)

“Mothers may breastfeed their children two complete years for whoever wishes to complete the nursing [period]. Upon the father is the mothers’ provision and their clothing according to what is acceptable. No person is charged with more than his capacity. No mother should be harmed through her child, and no father through his child. And upon the [father’s] heir is [a duty] like that [of the father]. And if they both desire weaning through mutual consent from both of them and consultation, there is no blame upon either of them. And if you wish to have your children nursed by a substitute, there is no blame upon you as long as you give payment according to what is acceptable. And fear Allah and know that Allah is Seeing of what you do.” (Al-Baqqara, 233).

 “You, [O Muhammad], may put aside whom you will of them or take to yourself whom you will. And any that you desire of those [wives] from whom you had [temporarily] separated – there is no blame upon you [in returning her]. That is more suitable that they should be content and not grieve and that they should be satisfied with what you have given them – all of them. And Allah knows what is in your hearts. And ever is Allah Knowing and Forbearing.” (Al-Ahzab, 51).

 “Lodge them [in a section] of where you dwell out of your means and do not harm them in order to oppress them. And if they should be pregnant, then spend on them until they give birth. And if they breastfeed for you, then give them their payment and confer among yourselves in the acceptable way; but if you are in discord, then there may breastfeed for the father another woman.” (At-Talaq, 6).

 “And those who no longer expect menstruation among your women – if you doubt, then their period is three months, and [also for] those who have not menstruated. And for those who are pregnant, their term is until they give birth. And whoever fears Allah – He will make for him of his matter ease.” (An-Nisaa’, 4).

 “Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband’s] absence what Allah would have them guard. But those [wives] from whom you fear arrogance – [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand.” (An-Nisaa’, 34).

“Divorce is twice. Then, either keep [her] in an acceptable manner or release [her] with good treatment. And it is not lawful for you to take anything of what you have given them unless both fear that they will not be able to keep [within] the limits of Allah . But if you fear that they will not keep [within] the limits of Allah, then there is no blame upon either of them concerning that by which she ransoms herself. These are the limits of Allah, so do not transgress them. And whoever transgresses the limits of Allah – it is those who are the wrongdoers.” (Al-Baqqara, 229).

 “There is no blame upon you if you divorce women you have not touched nor specified for them an obligation. But give them [a gift of] compensation – the wealthy according to his capability and the poor according to his capability – a provision according to what is acceptable, a duty upon the doers of good.” (Al-Baqqara, 236).

  “And if a woman fears from her husband contempt or evasion, there is no sin upon them if they make terms of settlement between them – and settlement is best. And present in [human] souls is stinginess. But if you do good and fear Allah – then indeed Allah is ever, with what you do, Acquainted.” (An-Nisaa’, 128).

“Divorced women remain in waiting for three periods, and it is not lawful for them to conceal what Allah has created in their wombs if they believe in Allah and the Last Day. And their husbands have more right to take them back in this [period] if they want reconciliation. And due to the wives is similar to what is expected of them, according to what is reasonable. But the men have a degree over them [in responsibility and authority]. And Allah is Exalted in Might and Wise.” (Al-Baqqara, 228).

 “And you will never be able to be equal [in feeling] between wives, even if you should strive [to do so]. So do not incline completely [toward one] and leave another hanging. And if you amend [your affairs] and fear Allah – then indeed, Allah is ever Forgiving and Merciful.” (An-Nisaa, 129).

“And when you divorce women and they have [nearly] fulfilled their term, either retain them according to acceptable terms or release them according to acceptable terms, and do not keep them, intending harm, to transgress [against them]. And whoever does that has certainly wronged himself. And do not take the verses of Allah in jest. And remember the favor of Allah upon you and what has been revealed to you of the Book and wisdom by which He instructs you. And fear Allah and know that Allah is Knowing of all things.” (Al-Baqqara, 231).

 “There is no blame upon you for that to which you [indirectly] allude concerning a proposal to women or for what you conceal within yourselves. Allah knows that you will have them in mind. But do not promise them secretly except for saying a proper saying. And do not determine to undertake a marriage contract until the decreed period reaches its end. And know that Allah knows what is within yourselves, so beware of Him. And know that Allah is Forgiving and Forbearing” (Al-Baqqara, 235).

 “And if you divorce them before you have touched them and you have already specified for them an obligation, then [give] half of what you specified – unless they forego the right or the one in whose hand is the marriage contract foregoes it. And to forego it is nearer to righteousness. And do not forget graciousness between you. Indeed Allah, of whatever you do, is Seeing.” (Al-Baqqara, 237).

“O you who have believed, it is not lawful for you to inherit women by compulsion. And do not make difficulties for them in order to take [back] part of what you gave them unless they commit a clear immorality. And live with them in kindness. For if you dislike them – perhaps you dislike a thing and Allah makes therein much good.” (An-Nisaa’, 19).

The concepts here progress gradually from a purpose to another; so while we find the demand for the virtues of compromising, consultation and obedience as the dual duties between the spouses,  comes also the incitement to goodness, kindness and forgiveness as a higher sublime level of the relationship where values like sacrifice, giving and selflessness of the two spouses equally, considering them as virtues that must prevail among the Muslims in general, and as a bedrock of the pillars of the relationship between the members of the Muslim family.

At the family and household level also, emerge two main concepts that trigger the current controversy about women. They are: “Qowama” (curatorship); superiority according to responsibility bearing, and “nushooz”; disobedience out of feelings of arrogance.  This conflict may seem irrelevant in light of the previous presentation of the marital status concept and philosophy in itself, as well as in light of the other network of interrelated concepts which frame the relationship between men and women in general; “pairing” and in the middle of which is “marriage”.

Perhaps the first to see in regard to curatorship “Qowama”, as referred by the thirty-fourth verse of the chapter of Women (An-Nisaa’), in the beginning of the verse there is a proof that it is a curatorship of accountability and responsibility, for men are responsible for looking after women affairs, in terms of expenditure, protection and guidance, under the umbrella of the concept of “kindness” which we shall tackle later. Then comes the allocation in: “Some of them over another”, a statement the interpreters did not stop at, spite of the exclamations and questions it raises, and why did the statement come with mentioning “some”?, and why it did not say “with what Allah favored some men over women”?, or “with what Allah favored men over some women”,  making the meaning open to mean “by what Allah favored some men over another” where some of them are more powerful, stronger, wealthier or more knowledgeable than others.  Man is in charge of looking after the women affairs using the strength and preference divinely bestowed upon him.  Once again, the probative assertive statement style is repeated, “So virtuous women are those who are steadfast in prayer and dependable in keeping the secrets that Allah has protected”. There are pious and worshiping women who protect Allah in themselves and their husbands’ rights through obeying Allah’s Commands and being attentive to their limits.  This is the type of believing women whom Allah urges the believing men to marry, amid the discourse concerning the pre-marital process, saying:

“And whoever among you cannot (find) the means to marry free believing women, then (he may marry) from those whom your right hands possess of believing slave girls.”  (An-Nisaa’, 25).

” And do not marry polytheistic women until they believe. And a believing slave woman is better than a polytheist, even though she might please you. And do not marry polytheistic men [to your women] until they believe. And a believing slave is better than a polytheist, even though he might please you. Those invite [you] to the Fire, but Allah invites to Paradise and to forgiveness, by His permission. And He makes clear His verses to the people that perhaps they may remember.” (Al-Baqqara, 221).

“Faith” here is a protecting shield against falling into seductions or dubious matters. The Qur’an includes clear models for such pious good women figures:

 “And Allah presents an example of those who believed: the wife of Pharaoh when she said ” My Lord, build for me near You a house in Paradise and save me from Pharaoh and his deeds and save me from the evildoers people. And Mary, daughter of ‘Imran, who guarded her chastity, so We breathed into her from Our Spirit and ratified the words of her Lord and His books, and was one of the devout .”(At-Tahreem, 11 : 12).

The two models of Asia and Mary present absolute model-figures for the pious woman status in the absence of her husband, or rather in the presence of a wrongdoer husband.  On the other extreme, lie the typical wrongdoing women-models; the wives of Prophet Nuh and Prophet Lut (Peace be upon them), “They were under two of Our righteous servants of Allah but they betrayed them.  Their husbands could not help them against Allah: it was said: Both of you enter Fire with the others (who are entering|).” (At-Tahreem,  10)

Assertion of righteousness and faith to woman, apart from the husband, does not in fact deny the responsibility of men in curatorship as a general rule, but at the same time it reflects the direct accountability for woman/wife to bear responsibility for herself and for her righteous or wrong actions.  It also reflects the ultimate process of curatorship in its “reforming and guiding” responsibilities which the man/ guardian is obliged to do, while the piousness of woman and her perseverance of the pure marriage’s values lie in her genuine faith, and is directly associated with her relation with Allah: “By what Allah guarded”.

By treating the issue of “nushooz”, the Qur’an is addressing a real “crisis” that jeopardizes the entity of the family. The Qur’an is also setting a gradual and functional remedy for such crisis on purpose of protecting the internal structure of the family.  We can easily trace this neutral functionality when it comes to the issue of “testimony”, where the verses elaborate the situation in which one of the spouses accuses the other of committing fornication.

The verses say “Those who accuse their wives but have no witnesses except themselves, the evidence of one of four certificates in God it is truthful and the fifth that the curse of Allah on the liars and it shall avert the witness before Allah four times that the liars and the fifth that the wrath of God that was one of the truthful” (An-Noor,  6: 9)

The verse here locates the word: “man” (husband) corresponding to the word: “woman” (wife), in regard to the issue of one party accusing the other of fornication, yet, this situation differs when it comes to the verse of loans in the Chapter of Al-Baqqara:

“And ask the testimony of two of among your men, so if they were not two men then one man and two women from among these with whom you are satisfactory from among the testifiers, alas one of those women forgets so the other shall remind her” (The Cow: 282).

The verse confirms the functional nature of the issue of testimony in both situations, while there is complete absence of any mention to a preference of one party over another, either on the human or the Belief level.

The concept of “Maa’rouf” “Kindness and equity” emerges also in particular as one of the most frequent concepts in the verses that address the marriage relation dimensions, or say, the verses that deal with men and women (matrimony) in general.  The word has been repeated in various recurred forms: (justly, the kindness, a kindness, good treatment, goodness” (Maa’rouf – al-Maa’rouf – Maa’roufan – Maa’rufa) in the whole Qur’an 39 times, and seven times to describe the nation of Muslims or believers, “(Believers) You are the best nation singled out for people; you order what is right, forbid what is wrong ” (‘Ali-‘Imran, 110).

“Be a community that calls for what is good, and forbids what is wrong: those who do this are the successful ones” ‘Ali-‘Imran, 104)

“who believe in Allah and the Last Day, who order what is right and forbid what is wrong, who are quick to do good deeds.  These people are among the righteous”. (‘Ali-‘Imran, 114).

“Who follow the Messenger – the unlettered Prophet they find described in the Torah that is with them, and in the Gospel, who commands them to do right and forbids them to do wrong..” (Al-‘Aa’raf, 157).

“(The believers) are those who turn to Allah in repentance, who worship and praise Him; who bow down and prostrate themselves, who order what is good and forbid what is wrong, and who observe Allah’s Limits..” (At-Tawba, 112).

“The believers, both men and women, support each other; they order what is right and forbid what is wrong; they keep up the prayer; and pay the prescribed alms; they obey Allah and His Messenger…” (At-Tawba, 71).

“Those who , when We establish them in the land, keep up the prayer, pay the prescribed alms, command what is right and forbid what is wrong: Allah controls the outcome of all events” (Al-Hajj, 41).

Out of the thirty nine times[22], there are nineteen verses that address the men and women in specific; and this has a significance.

‘Al Maa’rouf‘ in definition is “every act which goodness is well- known either by Intellect or by legislation”.  It also means: the good doing.  Bearing both meanings, the concept assumes the role of frameworking of the marital relationship, as well as the whole family relationships in its wider sense, and this in itself lies under the frameworking of the relationship among the whole community of believers; these who enjoin the good and forbid the bad.

We see this idea but in a different presentation in the Chapter of Women (an-Nisaa’), that tackles some of the issues of women and marriage.  The thirty-sixth verse of the Surah deals with a network of the human relations, among which is the family and marital relations. 

” Be kind to your parents and to the near of kin and the orphans and the needy and the relative-neighbor and the neighbor of kin, and the near friend and the Wayfarer and what your right hands possess that Allah does not love the proud, boastful;” (An-Nisaa’, 36).

“‘Ihsaan” (the best doing) here is similar to “Maa’rouf” (good doing), as both are close and imminent attributes of the Muslim nation, and are associated with all its various relations.

 In other words, the Qur’anic discourse locates the issue of marriage in more than one level of social regeneration:

• Private and intimate level of the relationship between men and women: Male and female.
• Familial level of the couple as assigned to different social roles within a surrounding of parties and relatives.
• A general level, where the couple appear as part of the group of believers and one of its living cells, valid for the application of the group’s universal laws. We find “al-Maa’rouf” kindness – for example –  is the key concept for understanding the mechanism of the relationship between the majority of believers in the various life situations such as: retribution[23] and inheritance[24] as well as the issue of Marriage along with its dimensions:  choice and engagement[25],cohabitation[26], divorce[27], death of the husband[28] .  “Al–Maa’rouf“, good doing such as giving, treating others in the best manner and forgiveness are general virtues that indicate the moral ethical association bond that connects the majority of believers, and shades their social and legal ties, no matter how these ties differ and vary.

Fourth, The Moral Space of the Marriage Relationship:

All the verses of Marriage in the Qur’an stress on the moral psychological dimension immanent within this relationship. Initially we concurrently sense the emphasis on the knowledge of Allah that is all-knowing and fully encompassing of what are hidden inside the human inner- selves.  Reflect over the endings of the five verses (from 231 to 235 of chapter Al Baqqara) which address the issue of divorce:

“Allah Knows and you do not” (231).  ” And be mindful of Allah And know that He has full knowledge of everything” (232).  “And know that Allah sees everything you do” (233).  “Allah is fully aware of what you do” (234), “Remember that Allah is most forgiving and forbearing” (235).

These verses absorb the psychological dimensions that affect the specific private dimension of the marital relationship. likewise, there is a reminder and warning against injustice with regard to these undeclared dimensions which the relationship include; the dimensions that are accurately defined by the human hidden conscience which no one encompasses the knowledge of its reality except Allah the Almighty.  This fact has been mentioned in the honorable verse: “They try to hide themselves from people and do not try to hide from Allah while He is with them when they plot at night saying things that do not please Him: and Allah is fully aware of what they do” An-Nisaa’, 108″.  Especially that the undeclared dimensions are enormous and rich in a relationship of a nature that demands concealment and secrecy as in the relationship of marriage.  While we find the concept of “concealment” (As-Satr) is immanent and inferred in the words of Allah:  “As for those who accuse chaste women of fornication and then fail to provide four witnesses, strike them eighty lashes and never accept their testimony ever afterwards: they are the lawbreakers” (An-Nour, 4).

Consequently, note the intensive combination between the verbal methods of admonition, warning, incitement, persuasion and exhortation. In fact, the diversity of the methods of rhetorical styles; warning and glad tidings, is a general feature of the Qur’anic verses that talk about women.  One explanation to this diversity that it is a means to include all types of audiences, with different mentalities and psyches; where some of which may be affected by intimidation and others by admonition and encouragement.

With regard to the marital issues in general, the audiences vary; they may include the man as a husband, and the women as a wife, and may extend to include the guardians, kinship and the majority of believers, and within these categories there are men and women also.. The speech may address the women only as the main doer, like in the following verses:

“And mothers may breastfeed their children”, “O Wives of the Prophet, you are not like any of the other women”, “O wives of the Prophet; whoever of you commits a sin”, ‘And whoever dies among you and leave wives (their wives) shall wait for three periods’, “And the      of women”, “Ask the believing women to lower their gaze..”, “And if a woman fears isolation of her husband..”, ‘If you repent to Allah so your hearts had strictly listened..”, O You Prophet, tell your wives and daughters and the believing women..”,

The speech here addresses the woman along with the husband, saying:  “There is no misexcuse to..”, and says, “If they wanted separation for their compromise, there is no consultation”.  The speech may addresses her as a part of the majority of believers, as saying: “the believers, men and women are protectors..”.

Example of the Qur’anic approach using the verbal emphasis on the role of the believing women, as in the replication of saying “the believers, believing men and believing women”[29] “..and believing men and believing women[30], and the inclusive statement:

” For men and women, who are devoted to Allah – believing men and women, obedient men and women, truthful men and women, humble men and women, charitable men and women, men and women who remember Allah often – Allah has prepared forgiveness and a rich reward’ (Al-Ahzab, 35).

Although this is obviously and normally included in the speech that addresses the majority of believers in general, it is also a kind of special allocation and emphasis on the active and independent role of women within a social surrounding, which may keep her unmentioned  unless explicitly mentioned in the Qur’anic discourse.

At the same time, we find that in the verses that talk generally about marriage, the speech is often directed to married men, or to the male guardians, since real life demands this, for women are – mostly –under the guardianship or custody of a male figure, and hence the speech comes clearly and directly, persuading those guardians, to treat their wives in the best manner and protect their rights in parity.  Note here the stylistic method of forbidding and the assertive voice in the verses that deal with framing the basic rules of women protection and rights preserving.

Forbidding	Commanding
Do not drive them out	Give them their due rights
Do not transgress them by any means	Give the women their dowries
Do not harm them to make it narrow for them	Pay them their rights justly
Do not	Cohabitate with them in kindness
Do not hold them transgressively to	Hold them kindly
Do not take anything from it	Set them free justly
Do not take the verses of Allah as mooching	Accommodate them where you are located
Do not incline all inclination	Spend over them

Corresponding to this decisive voice according to the context requiring, the Qur’anic style turns to flexibility and smoothness when the context touches the emotional chord – whether implicitly or explicitly- and encompasses the women psychological dimension; the dimension which the human-written laws ignore.  Consider what Allah says:  “And live with them in kindness. For if you dislike them,  perhaps you dislike a thing and Allah makes therein much good.” (An-Nisaa’, 19).

As to the issue of “hatred”, the Divine promises glad tidings and big rewards for people who resort to patience. The speech is directed towards the heart and deep inner self of the addressee, trying to turn the negative charge of hatred and resentment to the positive charge of anticipation and hope in the promise of Allah, the Almighty. This special Qur’anic treatment of the issue of “hatred between the spouses”, goes in parallel with the legal treatment of the issue of divorce; that includes preserving the women mental and material rights as well.  This is because the first treatment (reconciliation the moment the hatred starts) may totally close the door against the option of divorce, and eradicate the idea from its roots, so in case the reconciliation did not work so:  ” And live with them in kindness. For if you dislike them, perhaps you dislike a thing and Allah makes therein much good.” (An-nisaa’, 19)

Reflect also over the following verses:  ” But if you want to replace one wife with another and you have given one of them a great amount [in gifts], do not take [back] from it anything. Would you take it in injustice and manifest sin?” (An-Nisaa, 20:21)

Notice here the strong condemnation in the exclamation style, insisting on asking the question repetitively:  “would you take it?.. How can you take it?”.

Note the words which the Qur’an selected to describe the marriage relationship: “‘Afda“, means: the connection, and: “Mee-tha-qan ghaleezan“, means a strongly-tight covenant, within the same verse.  In light of this we need to read this noble verse ” And those who break the covenant of Allah after its confirmation and cut asunder what Allah Has ordered to be joined, and make mischief in the land on them is the curse; “(Ar-Raa’d, 25).  The verse refers to the importance of this known-conditions covenant or treaty which connects the couple together, and the harmful outcomes of the unjust breaking or terms violation of this strongly-tied covenant. 

See also what Allah Says: “And give women their bridal gift upon marriage, though if they are happy to give some of it for, you may enjoy it with a clear conscience” (An-Nisaa’, 4).  Notice the mutual affection between the two words:  “Tebna” (enjoy it), and “Nehla” (clear conscience).  They denote voluntary giving in consent.  In clear conscience and full consent differ greatly from the words “agreed” or “accepted”, for an approval may result out of convincing or fear and coercion, as a result to this, the Qur’anic statement here pre-conditions the existence of inner peace and satisfaction, which cannot result under the circumstances of coercion or intimidation which a wife may be exposed to by her husband or guardian.  The answer of the conditional phrase comes in the final ends in symmetry with the beginning of the verse by an expression that’s full of satisfaction and inner peace: ‘hanee’an ma-ree’an’ (enjoy it)! .

The speeche that addresses the feelings and encompass them is also mentioned in the verses: “There is no harm in proposing in secret to (any of) these women, or keeping the intention to yourself: Allah is aware that you will keep them in mind. Yet do not make a promise in secret, unless you speak in a manner that is proper..” (Al-Baqqara, 235).

“Allah knows what is hidden in the breasts”, He is here heading the speech to the believing category that fears seduction and tribulation, so He soothes them, and verifies a clear distinction between the mental field, the legally permissible actual field, and the forbidden field, by saying, “Unless you say a good saying “.

You can notice the flexibility of the speech and the miraculous voice-shift are manifested also in another verse: “And if you fear that you will not deal justly with the orphan girls, you may marry whichever [other] women that seem good to you, two, three or four. If you fear that you cannot be equitable [to them], then [marry only] one your girl slave(s): That is more likely to make you avoid bias.” (An-Nisaa’,3)

Ibn Katheer interprets this verse saying, “said al-bukhari: Describe Abdul Aziz Bin Abdullah, from Ibrahim Bin from Saleh bin Kaisan from Ibn Shihab said: ‘Erwa bin Zaid told me he asked Aisha (may Allah be pleased with her) about what the Allah the Almighty saying, “And if you fear that you may commit injustice to the orphan girls” , She said, O my niece, this orphan girl is in the custody of her guardian, lets him share her wealth with her and he admires her beauty and wealth, so this guardian wants to marry her without giving her the due rights in dowry so he gives her the same as others may give her, hence it is forbidden to marry the orphan girls in condition of giving them their full stipulated rights, and pay them the highest amounts due according to what’s normally given”.

The first notice here that this verse comes in response to a question from a group of Muslims:

 “And they request from you, [O Muhammad], a [legal] ruling concerning women. Say, ” Allah gives you a ruling about them and [about] what has been recited to you in the Book concerning the orphan girls to whom you do not give what is decreed for them – and [yet] you desire to marry them – and concerning the oppressed among children and that you maintain for orphans [their rights] in justice.” And whatever you do of good – indeed, Allah is ever Knowing of it.” (Women,127)

Thus, the verse addresses a group of people who came asking questions to the Prophet Peace and Blessings upon him, motivated by their fear of Allah and avoidance of sins.

The verses call upon the male guardians to disdain from taking some of the money of the orphan girls who are in their laps, and commands them to choose wives other than them even if two or three or four women. 

Notice the hight eloquence of the Qur’an:  the mention of permitting polygamy – that is generally often associated with the unbridled lust  – comes simultaneously within the same position that is focusing purely on the concept of chastity, thus making polygamy in itself a means for seeking chastity.

This verse is formed of a number of short phrases, and includes some well-regulated positive movements that are related to the same reciprocal concept: ‘Justice’.

• If you fear not to act in equal fairness so marry
• If you fear not being just so (marry) one
• This is much far from injustice

The verse disposes the addressee away from marrying the orphan girls to others on purpose of maintaining justice and chastity “As you like”.  To maintain justice, the verse commands the addressees to stay away from polygamy, and ordains only one wife, asserting that this is better and closer to maintaining justice and equity. The speech moves in a magnificent depth and simplicity, shifting the audience through different mental modes, carrying in each time a different promise and advice.

Professor Jamal Al-banna says, “One of the biggest causes that lead to the inability of the old interpreters to reach the secret behind the miraculousness of the Qur’an was their inability to link between the Qur’anic linguistic tools and the targeted content message.  Such message is the target behind the revelation of the Qur’an; for people’s guidance and recreation of Faith within the human soul.  Thus there is a tight link between the means and the purpose ” [31].

The “means” here points to the speech that is full with richness and depth, and is fully mindful with the human feelings and inherent weakness,  ” He wishes to make His laws clear to you and guide you to the righteous way of those who went before you.  He wishes to turn towards you in mercy – He is all Knowing, all Wise. He Wishes to turn towards you, but those who follow their lusts want you to go for astray.  Allah Wishes to lighten your burden; Man was created weak.”  (An-Nisaa’, 26: 28).

Mindfulness of the mental relationship and caring for feelings, especially the feelings of the wife, are being strongly ordained by the Qur’anic discourse, and we see this clear in the contexts where the concept or philosophy of “lust” or “sensual pleasure” is mentioned.

Leisure in the Qur’anic discourse is not confined to the physical meanings as promptly jumps to minds.  Leisure – as mentioned in verse 236 of Chapter Al-Baqqara –includes women who had been divorced before consummating their marriage; it is an implication that Allah SWT wants to compensate these women for the negative mental impact they suffered upon the dissolution of the marital link. The verse also includes the widows, where they are entitled to remain at their homes, and acquire their living expenditures from the money of the deceased husband (Al-Baqqara, 140).  This ruling is a sort of ensuring safety and care for a woman who prepares for the subtle shift in her life after the absence of a partner or parent, in a time in which it does not prevent those women from leaving the house, and gives her full freedom during their waiting period.

Thus, women’s financial right here is more than a pay in return for the sexual relationship, as stated by the various legal interpretations.  In all cases, the Qur’an gives the ultimate care for the mental status of men and women individually as parties of the marital relationship in the same proportion of caring for the mutual mental dimension of them both within the relationship itself.   This means that the Qur’an is building a structure in correspondence to the legal jurisdiction structure.  Both structures unite together to form a well-constructed legal formation which – by its two-folded dimensions of the legal and the human conscience together- form what Allah SWT called: “the Limits of Allah” (Hudood Allah).  The strange thing is that this concept has been repeated in the Holy Qur’an twelve times in seven different verses all concerning matters pertaining to men and women[32].

Fifth: The Jurisprudence Approach and the Absence of the Moral condition – (The Marriage Contract as a Model):

The first to note in the jurisprudent Fiqhi handling of the issue of marriage is the use of the expression “Nikaah” and not the term “Zawaj” (to mean: marriage).  (Nikaah bears both meanings: the marriage contract and the physical consummation of the marriage), and this is being included (in the books of Fiqh) in the section of transactions[33] under the title “the book of Matrimony”.

Usage of the concept of Nikah comes based on the repetition of the word in the Qur’anic speech in various expressions:  Tankihoo[34] (to marry), Tankih[35] (is marrying), yankihna[36] (women marry), Al-Nikah[37], Ankihooho [38] (to marry, addressing the plural), nakaha [39] (has married) , yankeh [40] (marrying), ankiho-honna[41] (marry the women), tankihohonna [42] (marrying the women), nikahan[43] (marriage), ankahaka[44] (married her), nakahtom[45] (has married them), yastankihoha[46] (requesting to marry her).

These all are concentrated in the Chapters: Women, The Cow, The Light, The parties (Al-Ahzab), then The Stories (Al-Qassas) and Al-Momtahena.

As to the linguistic and lexical definitions of the term “Nikah”, Linguists stated that it linguistically means[47] the interconnection and overlapping.  It is said in Arabic “Tanakahat al-Ashgaar” to mean the trees joined altogether. At this level, they added two meanings that the term can apply as used by the Arab tongue: consuming the sexual intercourse and the contract both together.  If we say, a man nakaha a certain woman, this means he desires to marry this woman and perform a marriage contract.   Whereas if we say “someone nakaha his own wife” here nakaha means the actual intercourse[48].

As to the Terminological definition, “Nikah” is defined as the contract of matrimony.  And it is also defined as: a contract that guarantees the permissibility of sexual intercourse[49], or a contract between the spouses that makes the intercourse between them lawful.  Other scholars refer to the matrimony contract as being one that refers the ownership of the Bedu’ of woman[50].

As to its legal significance of the term, the concept pertains to both meanings: the contract and the intercourse.  Some scholars say it means contract in reality and means intercourse metaphorically, based on the fact that the Qur’an did not use the term “Nikah” to mean the intercourse except once: “Unless she marries (had intercourse/ Tankiha) another husband” (Al-Baqqara, 230).  ‘Ibn Kathir interprets this verse saying: “until she has an intercourse with another husband within a valid marriage contract”.  In regard to the meaning of “Al-Wate’), Jurists based their evidence on a well known hadeeth that has a multitude of narrations.  In its brief it mentions that the Messenger of Allah Peace and Blessings be upon him  has been asked about the condition of a man who divorced his wife three times, then she married another one then divorces her before consuming the marriage, will she be lawful to the first husband?.  He, PBUH answered: “No, until she tastes his sweetness and he tastes her sweetness” (significance to mean that the consummation of the marriage is a must in this case).  Imam Ahmad narrates this hadeeth in a more elaborated and artistically detailed narration.  His narration states: narrated Abd el ‘A’la from Mo’amer from Az-Zuhari from ‘Orwa from ‘A’isha (may Allah be pleased with her and them all) said, “The wife of Rifa’ah Al-Qurazi came to the Prophet when Abu Bakr was with him, and she said: ‘O Messenger of Allah! I was married to Rifa’ah Al-Qurazi and he divorced me, and made it irrevocable. Then I married ‘Abdur-Rahman bin Az-Zabir, and by Allah, O Messenger of Allah, what he has is like this fringe;’ and she held up a fringe of her Jilbab. Khalid bin Sa’eed was at the door and he did not let him in. He said: ‘O Abu Bakr? Do you not hear this woman speaking in such an audacious manner in the presence of the Messenger of Allah?’ He said: “It is as if you want to go back to Rifa’ah?,  No, not until you taste his sweetness and he tastes your sweetness.”. The same has been narrated also by Al-Bukhari.[51]

Some said that the term “Nikah” has been mentioned in the Qur’an to mean matrimony only, except in the verse, “And test the orphans until they reach the age of matrimony” (An-Nisaa’, 6) on the basis that in this context it means “puberty”.  

On the contrary, Abu Hanifa says that its direct real meaning is “the intercourse” and the metaphorical meaning is “the contract”, based on the hadeeth of the Prophet of Allah PBUH: “Reproduce in big numbers……” (the hadeeth) .[52]

As to the Hanbali Scholars, they all agree that the term real meaning is “the contract” and the metaphore is “the intercourse”[53] relying on the verse that says “ And do not marry those [women] whom your fathers married, except what has already occurred” (An-Nisaa’, 22) on the basis that consummation of the marriage through having an intercourse between the father and the wife results in making the wife eternally forbidden to marry the son.

At this initial level of the terminological definition, we find that the meanings of marriage had been reduced to combine both: the contract and the direct sensory meaning: the intercourse.  This definition ignores completely all the social, mental, moral, intimate and essential meanings of the term.  When the term “Nikah” is the marriage or matrimony in the language of the Arabs, then the Book of Nikah (in the Jurisprudence books) should have begun with mentioning the definition of marriage as a social and life constructing event that bears a lot of personal, communal, physical and moral dimensions.  And these are the  dimensions established by the Qur’an clearly in more than one-position, but this did not happen.  What happened is that some scholars introduced the chapter by just a general introduction stating only the Prophetic sayings that recommends “Nikah” as a means for preserving the human kind existence and shield against seductions and turbulences.  Yet, Scholars differ on its legal ruling, but they generally agree that it becomes obligatory (Fard) on an individual who is in eager for it and is capable of enduring its duties and responsibilities; dowry and expenditure.  Ash-Shafei’ said that it is permissible just like buying and selling dealings.  Some of the Zahareya Scholars said that it is a Sufficient obligation (Fard Kefaya: when one in the Ummah commits it all the community individuals are not sinful if they leave it) [54] .  Some said it is recommended and enjoined, others made it obligatory[55].

Units of the “Nikah” book vary in subjects and incidents, but remains the most important of which are those that deal with the pillars of marriage “Arkan an-Nikah”.  These also vary between the Imams.  They are five according to the Shafei’ School: pronouncing of a fixed phrasing statement, a wife and husband, walii (a male guardian), and two male witnesses, and the Maliikii School added “the Dowry”.   Hanbaliis scholars stated three pillars: man and woman and a fixed phrasing statement.  Hanafiis state the phrase statement only as consent and agreeing, this means that the male guardian should say “I give you so and so in marriage” (Zawajtoka ….. or ankahtoka…..), then the husband should answer, “and I accepted marrying her (qabilto nikahaha).  It is worth noting that Scholars differ about pronouncing the verbal formula wording of the marriage statement that’s being uttered and spoken between the walii and the husband.  For example, if the groom answers, “I married” or “Onkihet” or “I agree” only then the contract is not considered valid, as per the Shafeei’s, whereas the Malikiis and Hanbaliis consider it valid[56].  The Hanafiis Nikah/ marriage is considered valid by uttering the same verbal phrasing of the transactions: buying, giving a gift, charity and ownership, whereas it is not valid if the verbal phrasing formula used was pertaining to “hiring” or “renting” transactions.  This is because “marriage is not considered valid unless by the verbal wording set especially for the purpose of ownership of the utility” [57].  Formal and superficial outer appearance here reaches its highest ultimate level turning the marriage contract into being purely a contract of ownership of life! .

Note here that they did not include the condition of the woman’s consent or intention as an essential pillar among the pillars of marriage contract.  They may have referred to it indirectly, or as a part of other main topic under some subsidiary outlines, yet was not given the higher importance as an essential foundation that compliments and frames all the other superficially-typo pillars.

On the other hand, we find that the concept of “guardianship” (Al-welaaya) has been given the highest attention and importance, especially to the Shafi’i, al-malikiyah and Hanbalis.  They say that no marriage (is allowed) unless a guardian is provided “Laa Nikah bedoun walii”.  Some scholars interpret this saying to mean that “women had been deprived from conducting their own marriages independently on basis of their inadequacy of the mind, and that they are not fully protected against being deceived, and letting women conduct their own marriages shall bear corruption, while women are fully protected if they marry under the authority and consent of a male guardian”.  Another reason is for the sake of “her own protection against doing an action that may give her the feeling of contempt and shallow mindedness and inclination towards the male figures, and this contradicts the status of virility and bashfulness”.[58]

What is strange is that this interpretation states that woman must not marry except on the presence and acceptance of the male guardian, the fact that clearly contradicts with the clear self-interpreted incident expressed in the Qur’an:  God Almighty says, “And a believing woman if she endowed herself to the Prophet in case the Prophet wanted to marry her” (Al-Ahzab, 50 ), not to mention the saying of the Great and Almighty, “The believers, men and women are guardians over each other..”.   While the majority of jurists relied their stance on the inevitability of the guardianship based on the hadeeth related to the Prophet, peace be upon him from Aisha, may Allah be pleased with her, says: “Any woman that marries without the permission of her male guardian then her marriage is null null null”.  Hanafiis see that this hadeeth is fabricated “Mawdoo” for two reasons:

First is that Aisha herself has conducted the marriage of Hafsa, the daughter of her brother Abdul Rahman without his permission or knowledge, while he was absent in the travel, and it is not possible for the mother of the Faithful to narrate something and act oppositely.  Second is that Az-Zauharrii is the narrator of the Aisha haddeth, has once been asked about it and he denied knowing it.  Hanafiis conclude that the narrators had fabricated the hadeeth and connected it to the narration of Aisha (may Allah be pleased with her) [59].

Guardianship has been examined excessively through numerous details[60] including the conditions of the guardian, and degrees and ranks of the guardianship.  For example questions had been raised such as: Is the woman’s grandfather preferred as a guardian? Or is her brother more preferred? Can the son be a guardian over his mother?, Does misvirtousness and sinfulness prevent an individual from being a guardian? Were the guardian entitled the right to compel the woman to marry without her consent or not (according to the various cases and given information).

It is noteworthy that acceptance and choice on part of the man are mandatory main conditions of marriage on the basis that “Marriage under compulsion is not valid”, whereas the issue is not absolutely free when it comes to woman, for example, Ash-Shafe’iis sees that the consent of the adult woman is not mandatory, but “her permission is just normally recommended”. [61]

  Al-malikiyah, Al-Hanbali’s and Shafii jurists stipulate that the guardian has the right to force the adult woman to marry and her disapproval does not carry any importance. [62]

The paradox is that the inevitability of the guardianship issue that won the extensive attention of the majority of Scholars does not have any basis from the Qur’anic discourse, whereas the woman consent of marriage which they deny as her right, is the axis subject of many Qur’anic verses that deal with the marital issues, as previously seen, based on the fact that Allah, SWT has described marriage as founded on tranquility, compassion and mercy.

The dowry is another important chapter of the book of Nikaah.  Some scholars justified the purpose of dowry saying, “ownership through marriage is not meant for its own sake but for further targets which cannot be reached unless with assuring the continuity and eternity of marriage, and sustainance of continuity mandates the availability of dowry within the same contract.  Conflicts that may happen between husband and wife, desolation and roughness that may urge the husband to divorce his wife, so if the dowry was not mandated in the same contract, the husband may easily resort to sacrifice his ownership of his wife at the first disagreement between them, once it becomes easy for him to break the marital tie.  Since the targets and objectives of marriage cannot be achieved unless through consent, and consent cannot be reached unless the woman is in an honorable respected status in the eyes of her husband, hence such respected status cannot be reached unless there is a means through which preventing the dissolution of this connection is maintained, and this means can be the dowry money which is deemed important by the husband and will not resort to sacrifice easily.  What was obtained by hardship will not be sacrificed except by hardship, and what was gained easily will be sacrificed easily, hence once a wife becomes cheap in the eyes of her husband, and this brings disagreement, the goals of marriage will not be attained, and because her ownership is established; either in regard to herself or in leisure and the rules of ownership.[63] 

He also says, “The benefits of owning the woman’s sexual parts/ sexual access (Bedu’) are being exhibited in the form of money which amount has been legally stipulated the moment the wife enters into the ownership of the husband since such ownership will effect in the production of human (children), so (the dowry) is a means of glorifying the human and protecting him against transgression and inferiority.[64] He also adds, “Before consummation of the marriage, woman has the right to prevent the husband from having intercourse with her until he pays her all of the dowry entitled for her, only then she can give herself to him.  This is because the dowry is considered a compensation for using her sexually (bedu’), similar to the money paid for buying some merchandise, where the seller has the right to withhold the commodity until the price (dowry) is fully paid”. [65]   

It could be argued here that the excessive sensory approach was not limited to the conditions and pillars, but also extended to provide a philosophical meaning for the marriage itself in the framework of the importance of dowry in the creation of the marital relationship, results in the fact that the marriage is a form of exchange or transaction in which an exchange takes place, exchanging the sexual relationship with the wife (bedu’) with money (dowry).

There is no doubt that keeping the rights especially the rights of women, including finance, is an issue that the Qur’anic discourse urged in more than one position, but not limited to, as the Qur’an made finance only as one part of the integrated marriage system. The concept of “owning the woman bedu'”, as stated by the Hanafi Jurisitic school as the core of the issue of marriage carries some logic, for the reality of the marriage tie entails the man “monopolizes” the sexual life of his wife, and this entails breaking through her privacy and innate feminine bashfulness, through merging with her mentally and physically, which is a matter of great respect in itself, and its grandeur has been sensed in the Qur’anic discourse, “and you has been exposed to each other”.  At the same time it is not right to sum up the concept of marriage in owning a bedu’ in return of money, because this in itself contradicts the principle of honoring the human being, and violates the moral ethical value carried by religion in general, and embodied within the institution of marriage in particular.

This raises another issue.  It is the amount of attention the Jurists – as previously stated – gave to the “social honor” for woman through dowry money, and neglected completely the mental honor through mental satisfaction needed by her as a human.  This sensual and physical inclination appears also in the definition of competency (Al-Kafaa’aa) which was given the higher attention also in the Books of Fiqh.  Competency means to marry off a woman to a man who is competent to her.  Here the jurists discuss the validity of the marriage contract when a woman marries an incompetent man throughout different occasions; in terms of the availability of her consent and the guardians’ consent or some of them.  Initially they defer about the characteristics through which competency is measured.  Shafei’is identifies it as follows:

• Religion: A man who embraced Islam individually (not a son of Muslim parents) is not competent to a woman who was born to a Muslim father.
• Descent: The non-Arab is not competent to the Arab woman, nor a non-Qorashi man to a Quraishi woman.
• Craft: someone who works in an inferior job is not competent to an elite.
• Chastity by Religion and righteousness: a non-pious is not competent to a chaste woman.
• Interdiction due to infirm of mind is not competent to a wise conscious woman.
• Freedom: The slave is not competent for a free woman.
• Clearance of impediments.

Whereas Imam Malek sees that competency is in Religion only[66].

Setting these conditions as criteria of competency from the one hand, given that it is not permissible for a woman to marry by herself nor could she marry without the consent of her guardian from the other hand, these constitute a double-faced equation,  signifies: The Arab man’s grand respect for keeping the purity of lineage as one of the most important tribal features that distinguishes the Arabs, and which has remained stable in the souls despite of the principles advocated by Islam; as to the imparity and equality of all Muslims without prejudice to the terms of the Arab excellence.  The end result of this is that woman is prevented from marrying someone who lacks the characteristics of honor and superiority.  After the Prophet (PBUH) passed away, the Muslim Arabs began to get out of the Arab peninsula, opened the countries and expanded, and they were considered minorities in these new societies where they settled in.  They carried feelings of the Arabian honor deep inside them, as being descendants of the race of the Messenger of Allah PBUH, and that they are the owners of the new Religion for which they were calling for and for which they opened these countries, the fact that enriched inside them the feelings of honor and supremacy over others.  This supremacy has reflected in the form of the social division of excellence, which made the tribe of Quraish the leader of the Arabs and the residents of the city of the Islamic Khilafa.  This has been reflected in the issue of marriage, for fear that Arab women involved motivated by her emotions to choose an incompetent husband amid such social criteria, which threatens the social security in general.  Accordingly, it was not desirable to women to leave the home so as not to mix with foreigners (non-Arab Muslims), it was also necessary to accelerate the authority of the guardian. For example, we find that although Abu Hanifa was the sole to allow the adult woman the right to choose a spouse and direct the marriage contract on her own, he himself gave the guardians the right to object to the marriage to the judge and hence has the power to dissolute the contract if she married an incompetent man[67].

Fiqh books allocated many chapters elaborating the women whom one is forbidden to marry, ones whom one is permissible to combine in marriage, and ones who are not, and distinguished between the various cases, incidents and details, that deal with the contract settlement, the intercourse and its effects, the factors that make the contract valid or invalid.. and so on including details of very rigid and solid nature deprived from the human feelings or emotions, and most importantly is the complete absence of the woman’s voice from the scene, whereas she is always the member that’s acted upon; not the one who speaks out nor the doer interlocutor. 

In sum, we can refer to two things, commenting on the juristic approach of the issue of marriage and the role of women:

• The juristic discourse, like all human speech, is affected by its contexts, whereas culture here is the main context that intervenes and influences the way of understanding and interpretation, circumvents the contents of the authentic religious discourse in the Qur’an and the sound Sunnah to stipulate the constituents of this culture, the fact that is visible in many cases that are evident in the history of Islamic Thought in general, where the shift in the form of political power after the era of the rightly guided Caliphs is not its last, and how it was legalized by the Muslim thinkers then, or the centrality of the issue of lineage and giving preference to the Quraishi descent, to the extent they made it a condition of the Muslim Imam.. At the level of the Fiqh books we note how much was the expansion in the handling the partial matters of worship and transactions in return for overlooking issues that are related to the issue of assigning the Imam in general, and transferring it to the books of Tawheed. In the same framework, the approaches to women’s issues were advent, in a culture that is loaded with sensitivities towards women on the one hand, and the gender issues, on the other hand.
• In viewing women, the narrow sexual perspective prevails over all the dimensions through which one can understand and legitimize her role as part of the Muslim community and one of the majority of the faithful. Hence the treatment approach came as inadequate, dissecting, and internally contradictory at the same time.  In the historical literature and biographies that deal with the roles of members of the Muslim community in general, we find significant presence for women, but in the legalization of the women’s movement the sexual outlook prevails, where it limits the concept of women on the borders of her own body, is focused on the guidance and imperatives regulating this body only, irrespective of any other factors.  For example, we can read in the biography of the prophet PBUH and in His Sunnah we sense a wide presence for women, moving actively and dynamically with men and ask them about matters that they concern without embarrassment.  These incidents and situations cited from the Seerah are always mentioned in many places to infer a lot of provisions, yet these situations are not taken in consideration when the talk is about issues like the shortcomings of women, or the necessity of her isolation and obliging her to obey her husband to a degree that approaches that of worship.  An example of this is the hadith of “sweetness” previously mentioned, where this hadith is considered in the definition of marriage, and whether it points to the intercourse or to the contract.  This hadith in itself draws a picture for a courageous woman who was able to face the Prophet PBUH, complains and elaborates for him the matter in complete details regarding a very sensible or embarrassing issue in public and in the presence of strangers like ‘Abu Bakr As-Sedeeq and Khaled ibn Saeed ibn ‘Al ‘Aas (may Allah be pleased with both), at the same time we see the Prophet PBUH not forbidding her from speaking nor condemns her act, but smiling in response and answered in a funny way “not until you taste his sweetness and he tastes your sweetness”; a statement that is rich with meanings, yet the consensus were on interpreting it to mean “the Intercourse”.

On the other hand, we see how the Qur’anic discourse liberated from the sensitivity of the sexual issue, and how it tackles the issue in a very clear direct way not having the least shadow of contempt or condemnation or exaggeration, also liberated women’s vision of the narrow “gender” look which considers women as a special distinct object, different  from people and the majority of believers.

The Qur’an tells the story of Prophet Yusuf (Joseph) (Peace be upon him), and the wife of Al-Aziz, and narrates the story of the daughter of Shu’aib with Moses, (peace be upon them), and narrates pictures from the house of prophethood, and insinuates the human feelings of love, desire and jealousy; normal human feelings that exist within every person out of the human nature, whereas we do not find in the Divine speech any threatening or condemnation to these feelings, but a guidance and good tidings[68], and a permanent readiness to accept repentance and renewal of faith, the fact that is repeated since the beginning of creation, since the creation of Adam and the decision of the divine Khilafa (successorship) in the ground, then the explicit violation of Adam and his wife to God not to eat from the tree, then eating, repentance and acceptance, the ending of the situation with the advice that Satan will remain an enemy to Adam and he must learn the lesson.

Allah created Man and knows his nature and weakness, so He decided that “God commands a soul only to its capacity” (Al-Baqqara, 286) and that “God commands a soul only to what is prevalent” (Divorce: 7)”, and decreed on Himself the acceptance of repentance “except those who repent and amend and make manifest, these it is to whom I am ever Merciful ” (The Cow: 160)

Conclusion:

Towards integrating the moral components in the heart of the cultural and legal structure:

The previous debate raises several questions: if observing the moral dimension is an essential part in forming the legal system that regulates the human behavior in general, as seen in the Qur’anic discourse, so: To what extent has this been applied in reality of the legalization and legislation processes of the juristic heritage books, or in the contemporary statutory law, especially in regard to the women’s issues where morality occupies a wider space, as we have previously seen?.  How to ensure this to be applied on the Islamic legislation and practice?, And, what is the scope that we can imagine for an Islamic society where the laws that regulates its primary cell; “the family” are being re-constructed based on the concept of “kindness”, tolerance, giving and good doing?.

There is no doubt that the practice in many cases has reduced Religion to a number of formal procedures that lacked the richness of divine guidance and the depth of moral values, which we see in the case of women, suffice is the treatment of the Muslim Scholars to the issue of marriage, in terms of content, form and rulings, to discover the great difference between their poor formal dissenting speech, and the all-knowing encompassing Divine Speech. It is the same difference that creates a growing team of rejecters and adopters of misconceptions regarding Islam as a whole, driven by the status of women in it.

In fact, the writer of these lines do not have sufficient capacity to argue in jurisprudent or legal matters, and does not claim ownership of the tools that can raise the level of man-made legislation and practice to the level of the Qur’anic discourse, but only owns an awareness of the accurate interrelated close link between the full understanding of the exponential divine guidance, and the preservation of religion in itself, and maintains its continuity as guiding lights and mercy for Muslims. Other studies may emerge from different disciplines and specializations that can undertake the task of bridging the legislative gap between the Qur’an in one hand, and law and Reality on the other.

The cultural arena is already witnessing the emergence of some independent creative legal opinions ‘Ijtihad trying to re-read the inherited jurisprudence in light of the Qur’an, and judging according to the absolute in regard to the historic cultural product.  Reading this cultural product a kind of reading that is conscious of its different political and social contexts, and works to minimize the issue of prohibition and  lawfulness by referring it to Allah and the sound explicit authentic texts which do not need interpretation, or to the sound Prophetic Sunnah, which cannot get contaminated with the least suspicion of weakness, while rediscover the “forgivable” zone stipulated by Allah and the Messenger PBUH, Allah Almighty says, “O you who believe, do not ask about matters, which, if made known to yous, might make things difficult for you – if you ask about them while the Qur’an is being revealed , they will be made known to you – for Allah has kept silent about them: Allah is most Forgiving and Forbearing. ” (Al-Maae’da, 101).  The Prophet, may Allah bless him and grant him peace says “what Allah disbands in His Book is permissible, and what He forbids is unlawful, and what He remains silent about is pardoned from Allah, so accept from Allah His pardons, for Allah forgets nothing and thy Lord is not forgetful”. 

We should reconsider the issue of “closing the loop of pretexts” (Sad az-Zaraa’ei’) which the jurists used exaggeratedly, especially with regard to women’s issues, and seeking guidance adopting the Qur’anic method, by its openness, inclusiveness, understanding and encompassing of the human life in all its dimensions, and seeking light guidance in this method, and applying it in writing the books of Jurisprudence, which is restricted till now to the dry and reduced form of laws. [69]That’s side by side with the issue of review and renewal of jurisprudence, emerges the importance of activating the role of well-literate knowledgeable Muslim women, whether in the public life as she is a key player in the different operations of the social up bringing, by caring and cultivating the religious conscience and spirit within the souls of the children, brothers, husband and every surrounding individual,  or her role in the production and renewal of culture as she is the most aware and sensitive to the injustice inflicted upon her through abridging her multi-sided human existence in her physical body.  Doing this will result in the creation of a general social awareness capable of seeing things in a universal view that goes deep into the spirit of Religion, not stopping at its parts and parcels, nor shapes and re-organizes them according to whims or according to the prevailing norms and culture.

Translated by: Hala Aly**

_____________________________________

* A Social Studies and Feminism researcher, and preparing her Masters degree.

The Women and Civilization Studies Society, Cairo, Issue no. 3, Shaa’ban 1422 H, October 2002.

[1] Al-Baqqara, 195 – ‘Ali-‘Imraan, 146, 134 – Al-Maa’eda, 13, 93.

[2] Al-Baqqara, 222

[3] Al-Baqqara, 222

[4] ‘Ali-‘Imran, 76 – At-Tawba, 4,7

[5] ‘Ali-‘Imran, 146

[6] ‘Ali-‘Imran, 159

[7] ‘Al-Maa’eda, 42 – Al-Hujurat, 9 – Al-Momtahena, 8

[8] At-Tawba, 108

[9] As-Saf, 4

[10] Al-Baqqara, 190 – Al-Maa’eda, 87

[11] Al-Baqqara, 205 – Al-Maa’eda, 64 – Al-qassas, 77

[12] Al-Baqqara, 276 – A’li-‘imran, 32 – Ar-Ruum, 45

[13] ‘Ali-‘Imran, 75, 140 – As-Shura, 40

[14] An-Nisaa’, 36 – Luqman, 18 – Al-Hadeed, 23

[15] An-Nisaa’, 107 – Al-Anfaal, 58 – Al-Hajj, 38

[16] An-Nisaa’, 148

[17] Al-An’aam, 141 – Al-A’raaf, 31

[18] An-Nahl, 23 – Al-Qassas, 76

[19] Repeated in the verses: Al-A’raaf, 203 – Al-qasass, 43 – Al-Jatheyah, 20

[20] Dr. Mona Abu Fadl, women in the Qur’an: methodological notes, unpublished lecture, the association of women’s studies and civilization, August 2001.

[21] The verse “so come to your place of cultivation however you wish” interpreted to mean either however you wish or whenever you wish, the fact that stirred some argument since intercourse from the back is clearly forbidden.  Professor Jamal el Banna’s opinion that “however” here points to the timing; that’s whenever you want, similar to the verse “Or like that who passed by a village while it was empty on its ruins said when shall  Allah brings it back to life?” (al-Baqqara, 259).  And the verse, “So were they look to the final hour it shall come suddenly where its conditions had took place, so however for them if they were reminded by it” (Muhammad, 18).  “and However” (wa ‘Anna’) does not leave room for the above mentioned controversy. “Towards a New Jurisprudence”, volume 1, p. 124- 125.

²² See the verses: 228, 229, 231, 236, 240, 241 from Chapter Al-Baqqara.  And the verses: 19, 25 from Chapter An-Nisaa’. And the verse 12 and 32 from Chapter Al-Momtahena. And the verses 2,6 from Chapter At-Talaq.

[23] Al-Baqqara, 178

[24] Al-Baqqara, 180, An-Nisaa’ 8

[25] Al-Baqqara, 235, An-Nisaa’ 25

[26] An-Nisaa’ 19

[27] Al-Baqqara, 229, 231, 232, 233, 234, 236, 241 – At-talaq, 2:6

[28] Al-Baqqara, 240

[29] See the verses: At-Tawba 71:72 – Al-Fat’h, 5 – Al-Hadeed, 12 – Nuh, 28 – Al-Burooj, 10

[30] Al-Fat’h, 25

[31] Jamal el Banna, Towards a New Jurisprudence, Vol. 1, P 106

[32] The Vereses: Al-Baqqara, 187, 229, 230 – An-Nisaa’ 13:14 – Al-Mujadala, 4 – At-Talaq,1

[33] Jurists had made a distinction between two major legal cases: namely “worship” that includes prayer, almsgiving, fasting, pilgrimage and related matters like purifications, and “the habits or transactions” which include the legitimate transactions, crimes, jihad, inheritance and Jurisdiction.  The juristic schools differ, each has made its own sections division, yet they all adopt the same division regarding the “Worships” section, and differ in the division of the other sections. For example, the Shafee’ie school divides the worldly transactions and dealings to three parts, one that deals with survival of the person like the trading buying and selling dealings, a part for survival of the type, that’s for the marriage contracts, the rights of the relatives and children, and a part for keeping order and security section; “the Penal and punishments”.  Whereas the Hanafi Jurists divide the transactions into: the financial transactions, safe matters, marital matters, conflicts and inheritances, whereas they separated these from the punishments that include retribution and Hudood of theft, adultery, slander, and penalty for apostasy from Islam.

Mohammed Mohammed Farahat, The entrance to the study of Islamic jurisprudence (history of legislation) (Cairo: Arab Renaissance Publishing House, 2000) p. 13- 15.

[34] Al-Baqqara, 21 – An-Nisaa’, 22 – Al-Ahzab, 53

[35] Al-Baqqara, 230

[36] Al-Baqqara, 232

[37] Al-Baqqara, 235, 237 – An-Nisaa’ 6

[38] An-Nisaa’, 3 – An-Nur, 32

[39] An-Nisaa’, 22

[40] An-Nisaa’, 25 – An-Nur, 3

[41] An-Nisaa’, 25

[42] An-Nisaa’, 127 – Al-Momtahena, 10

[43] An-Nur, 33 – 60

[44] Al-Qassas, 27

[45] Al-Ahzaab, 49

[46] Al-Ahzaab, 50

[47] Regarding the meaning of the word “nakaha”:  stated in “Lisaan al-Arab” Lexicon, (Vol. 2, P. 625, 626), under the subject “Na-ka-ha” as follows: Someone nakaha a woman, yan-ki-ho-ha ni-ka-han, when he marries her.  Na-ka-haha – yan-ki-ho-ha ba-daa-‘a-o-ha, and also da-ha-ma-ha, and, kh-ga-‘a-ho-ha.  Al-‘A’ieshey said that Naka-ha means married.  Allah, the Almighty says, “The fornicator man [shall not] marry except a fornicator or an Idolatress, and the fornicator woman [shall not] marry except a fornicator or idolator”, interpreted that the fornicator man should not marry except an adulteress, and the same applies for the adulteress should not marry except to a fornicator.  Some interpreters said that “na-ka-ha” here means the intercourse, as they see it to mean that the fornicator man should not make intercourse except with an adulteress and the same applies to the adulteress, said: “and this is a remote because it is ignorant about the mention of marriage (Nikaah) in the Qur’an except by the meaning “marriage/ to marry”. Allah the Almighty says, ” and marry the women who have no husbands” (wa an-ki-hoo al-ayama menkom), the meaning here is one and illicit clear, that’s “marriage”.  Allah the Almighty also says, “O you who believed, if you married the believing women” (‘iza na-kahtom).  Know that the marriage contract is called “al-Nikaah”.  Az-Zuharey said: “The source of “al-Nikaah” in the Arabs tongue is the intercourse.  And marriage is called “Nikaah” because it is a cause and means for having a permissible intercourse, and it can signify to mean “the contract”.  One say “Na-kah-ta-ha” and “na-ka-hat” means “got married”.  There is also the term “naakeh fi bani ….” Means she has a husband from this tribe.  ‘Ibn Sayyeda said, “al-Nikaah” is “al-Bodu'” that’s from the human kind in particular.  Man in Jahiliya, in the times before Islam, comes to the tribe seeking engagement, so he delivers a speech clarifying the purpose of his coming; to look for a woman to marry.  Then it is said to him “na-ka-ha” means: “we have accepted you marry her”. Ajuharey said, “al-Nakaha” is a word that the Arabs used to conclude marriage by pronouncing it.  It is said “the rain nakaha the land” when the land relies on the rain for its revival of life and flourishing.  There is also the expression: “Nakaha the sleep his eyes” (he feels sleepy), and “naka the rain the land” and “naka the sleep his eyes”.  A woman is described to be “Nakih” when she has a husband.  “Zaat Nikaah” means “in the status of marriage” parallel to the morphological manner “Haa’ed” (in the status of menstruation), and “taaher” (in the status of purity), and “Taaleq” (in the status of divorce/ divorced).

[48] Mansour Bin Yunus ibn Idris el-Bahouty, unmasking the board regarding the persuasion text “Kashf al-Q’inaa’ ‘an matn al-‘Iqnaa'”, editor: Hilal Meselhi, Mustafa Hilal (Beirut: Al-Fiqr Pub. House 1402 e) Part I, p. 6

[49] Hussein Ibn Muhammad al-Mhaly al-Shafee’ei, Al-‘Ifsah an ‘Aqd al-Nikah according to the Four Legal Schools, Revised by: Aly Muhammad Moe’awad and Adel Ahmad Abdel Gawwad (Alippo: Dar al-Qlam al-Arabi, 1982).

^[50] Aladdin al-Kasany, Badaae’I’ al-Sanaa’ei’ in the order of the Legal Rulings ,Beirut: Arab Book Publishing House, 1982), part II, p. 229

[51] ‘Ibn Kathir, The Interpretation of the Great Qur’an, Dar Arab books, vol. I, p. 267 – 268

[52] Mohammad Bin Ali Bin Mohammad Ash-Shawkany, “Nayl al-Awtaar men Ahadeeth Sayyed al-Akhbaar”, a selected explanation of news, (Beirut: Dar el-Geel, 1973) Part VI, p. 227

[53] Abdullah Bin Ahmad Bin Qudamah, Al-Mughni in the jurisprudence of Imam Ahmad Bin Hanbal (Beirut: Dar Al-Fikr, 1405 e) Part VII, p. 3

[54] Badaa’ei As-Sanaa’ei, Vol 2, P. 228.

[55] Jurists divided the transactions or habits field into five zones: obligation, unlawfulness, recommended, non-recommended and lawfulness.  They accordingly inserted all the human actions within the frame of rulings including what’s lawful as well.

[56] Al-‘Ifsaah ‘an Aqd el Nikah (Confessing the marriage contract), P. 29,30.

[57] Badaa’ei As-Sanaa’ei, Vol 2, P. 230.

[58] Al-Mughni, Vol.7, P. 6.

[59] Chaimaa as-Sarraf, Legal Rulings of Woman between ‘Ijtihad and Takleed.. a comparative study in Shar’iah, Jurisprudence and ‘Ijtimaa’ (Paris: Dar al-Kalam, 2001, 1^st edition), P. 22, 23.

[60] Refer also to the Book related to marriage in “Al-Om” (The Mother) by Al-Shafei’ (Beirut: Dar al-Me’refa, 1393), Vol. 5, starting from P. 3.

[61] Al-‘Ifsah ‘an Aqd el-Nikah (Confessing of the marriage contract), P. 63.

[62] Chaimaa’ As-Sarraf, ibid, P. 25.

[63] Badaa’ei’ al-Sanaa’ei’, Vol. 2, P. 275

[64] Ibid, P. 287

[65] Ibid, P. 288

[66] Al-‘Ifsah ‘an ‘Aqd el-Nikaah, P. 91:94.

[67]  See in this concern: Chaimaa’ As-Sarraf, Ibid, P 28 – 35

[68] Regarding the controversy that took place in the Prophet’s house, it is enough to compare the speech of the Qur’an to the wives of the prophet who demonstrated against him, and he is the noble Prophet,  Peace and blessings of Allah upon him (Al-Momtahena, 4- 5), with the unlimited number of fabricated Prophetic sayings that curse and expel woman eternally out of the Mercy of Allah if she frowns in the face of her husband, or disagreed with him or went out of the house, let alone to stir his anger or prevent him herself or her money.  Narrators attribute to the prophet of Allah, PBUH from the narration of ‘Aly bin Abi Taaleb (may Allah brighten his face) says, “Even if it takes a woman to cook her breasts and gave them (as a gift) to her husband, she would not be giving him his due!”.

[69] Refer, for example, to the valuable attempt of Dr. Gamal Al Banna in his three volumes “Towards a new jurisprudence” (Cairo: The New Thought, 1996) and on the characteristics of the Qur’anic discourse and method of dealing with it, see: Mona Abu Al-fadl, towards the methodology of dealing with the sources of Islamic Theory between the premises and infrastructure (Cairo: World Institute for Islamic Thought, 1996).

** Egyptian Researcher and Translator.