Shari‘ah Ruling on Marrying A Person Who Was Previously an Adulterer Or An Adulteress (1) | Mahmoud Rizq   

ALLAH SAYS IN Sûrat Al-Nûr:

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

Occasion of Revelation (Sabab Al-Nuzul) of the Ayah

According to ʿAbdullah ibn ʿAmr ibn Al-ʿÂṣ, this âyah was revealed in the case of a man who sought the permission of the Prophet ﷺ to marry a [certain] prostitute who agreed to financially support the man (from the wealth she drew from prostitution) should he marry her (Aḥmad). In another ḥadîth narrated by ʿAmr ibn Shuʿayb, the Companion Marthad ibn Abi Marthad Al-Ghanawi used to have a prostitute girlfriend in the times of jâhiliyya. One day, Marthad came up to the Prophet ﷺ and inquired as to whether he could marry his former girlfriend. The Prophet ﷺ recited the âyah to Marthad and said: Do not marry her (Abû Dâwûd, Nasâ’i, Tirmidhi).

Two Exegetical Views

Quran commentators have differed over the meaning of this âyah—or to be precise, over the meaning of the term ‘yankiḥ’— does it mean ‘to marry,’ or does it mean ‘to copulate’? And what are the implications of each?

First View: ‘Yankih’ Means to Marry

Some, like Imam Aḥmad—as quoted in Ibn Qudâmah’s Al-Muqni—held that the word ‘yankiḥ’ occurring in the âyah means ‘to marry.’ He, therefore, concluded that the âyah prohibits intermarriage between a chaste person and a person guilty of adultery, repentant or otherwise. Imams Ibn Taymiyya and Ibn Al-Qayyim concurred with Imam Aḥmad’s interpretation and presented numerous proofs in support of their stance (see MajmûʿAl-Fatâwa, 15:315, 32, 113 and Ighâthat Al-Lahfân, 1:65). Imam Al-Shâfiʿi, too, was of the mind that the passage proscribes entering into a marital bond with a person who fornicates, but he held that the âyah was abrogated. Thus, he permitted chaste believers to marry persons who had fornicated. Imam Al-Shâfiʿi says: “Quran commentators have differed as to what this âyah signifies. In my opinion, Imam Ibn Al-Musayyab’s view that the âyah was abrogated by Allah’s saying: Moreover, let the unwed among you marry, and also the righteous of your bondmen and bondwomen [Sûrat Al-Nûr, 24:32] is the closest to the intent of the Law-Giver (Allah). For, as Ibn Al-Musayyab says, adulterers and adulteresses belong in the category of the unwed (ayâma) mentioned in the abrogating âyah (see Imam Al-Shâfiʿi’s Al-Umm, 5:158).

Second View: ‘Yankih’ Means to Copulate

Others have maintained, in the first place, that the ayah does not include any prohibition (taḥrîm). This is the view of the majority of scholars. Imam Ibn Kathîr remarks:

This is no more than a divine narrative to the effect that an adulterer only finds willing sexual partners among rebellious adulterers or adulteresses, or among the idolaters (mushrikîn), who do not believe in the unlawfulness of adultery.

The Companion Ibn ʿAbbâs is reported to have said in an authentic report that the âyah alludes to sexual intercourse (jimaʿ), not to marriage (nikâḥ). The same view is reported from Mujâhid, ʿIkrimah, Saʿid ibn Jubayr, ʿUrwah ibn Al-Zubayr, Makḥûl, and Muqâtil ibn Ḥayyân, among others. (Tafsîr Al-Qur’ân Al-ʿAẓîm by Ibn Kathîr, 6:9)

The Permitting Scholars and Their Proofs

Some scholars, including Imams Al-Shâfiʿi, Mâlik, and Abû Ḥanîfah, hold that it is permissible to marry an adulterer or an adulteress. They adduce in support of their opinion the following proofs:

1. The general implication of the statement of Allah: Also forbidden to you are presently wedded women….but lawful for you are all those beyond this [Sûrat Al-Nisâ’, 4:24]; and His statement: Moreover, let the unwed among you marry, and also the righteous of your bondmen and bondwomen [Sûrat Al-Nûr, 4:32], as these two passages apply both to perpetrators of fornication and to those who are chaste.

2. The ḥadîth reported on the authority of Ibn ʿAbbâs:A man once came to the Prophet ﷺ and said: “My wife does not mind sexual advances made on her by other men!” “Divorce her,” the Prophet ﷺ replied. The man answered: “But I can’t imagine myself separated from her!” “Then keep her,” the Prophet ﷺ said. (Abû Dâwûd, Tirmidhi, Al-Bazzâr, Al-Nasâ’i)

The Prohibiting Scholars’ Rebuttal of the Proofs of the Permitting Scholars

The scholars who allow marrying adulterers and adulteresses answer their opponents’ arguments with regard to this âyah in either of two ways:

1. The term ‘yankiḥ’ in the âyah means ‘sexual intercourse’ (jimâʿ) and not ‘marry.’ They hold that the âyah seeks to represent adultery in an extremely reprehensible light, such that an adulterer or an adulteress can find a willing partner only among those steeped in profligacy and ungodliness—the likes of a mushrik or mushrika, who do not hold adultery as unlawful, or the likes of a wicked and depraved perpetrator of zina, adultery.Thus, they assert that the allusion in ayah 3 of Sûrat Al-Nûr (24) has to be to the act of sexual intercourse (waṭ’). Such interpretation, they maintain, renders the mention of the terms ‘mushrik’ and ‘mushrika’ in the âyah unproblematic.Or:
2. The term ‘yankiḥ’ in verse 3 of Sûrat Al-Nûr (24) does denote ‘to wed.’ But this âyah is abrogated by âyah 32 of Sûrat Al-Nûr (24–see above). This exegetical view is, as stated previously, championed by Saʿîd ibn Al-Musayyab and Imam Al-Shâfiʿi.

The Prohibiting Scholars and Their Proofs

Another Group of jurists, like Imam Aḥmad, Al-Ḥasan, and Qatâdah, argue that intermarriage between persons guilty of adultery and chaste persons is not permissible. They cite the following proofs in support of their position.

1. They contend that the term ‘yankiḥ’ in âyah 3 of Sûrat Al-Nûr (24) means ‘to marry.’ They add that Allah has emphatically prohibited intermarriage between chaste people and perpetrators of adultery, as per His divine statement:Moreover, lawful for you in matrimony are chaste women from among the believers and chaste women from among those who have been given the Scripture before you—provided you have given them their full dowry compensation in marriage—not to commit fornication, nor to take them as lovers. [Sûrat Al-Mâ’idah, 5:5]They hold that the divine statement “in marriage—not to commit fornication” means chaste and clear of adultery, which denotes the impermissibility of intermarriage between a chaste person and a fornicator.

2. They assert that the Quranic phrase in the âyah — …They are to be chaste women and not fornicators…. [Sûrat Al-Nisâ’, 4:25] — indicates that chaste men can enter into marital relationship only with chaste women who do not practice adultery.

3. They argue that the extant aḥadîth pertaining to the occasion of the revelation of ayah 3 of Sûrat Al-Nûr (24) are all concerned with the marriage contract (ʿaqd al-nikâḥ). Not a single one of these aḥâdîth mentions wat’ (coitus). Hence, they cite the juristic principle that stipulates that the occasion of revelation of a verse must be considered in determining the general meaning of the Text (ʿumûm), and that the occasion of revelation is one of the decisive indicators of the intent of any Qur’anic passage.

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

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

Commenting on this ḥadîth, Imam Ibn Ḥajar said in his Bulûq Al-Murâm:

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

To be continued, Inshâ’Allah, in Part (2)…