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

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

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

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

Imam Ibn Al-Qayyim (Zâd Al-Ma’âd)

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

and such marriage is forbidden for the believers.

There is no doubt that the claim that this âyah is abrogated by verse 32 of Sûrat Al-Nûr (24) is weak. Even weaker than this is to interpret the word ‘yankiḥ’ occurring in the âyah as meaning ‘to fornicate.’ For if we were to accept such interpretation, the meaning of the âyah will be as follows: An adulterer should have illicit sex only with an adulteress or a mushrikah; and an adulteress shall commit adultery only with an adulterer or a mushrik—a nonsensical interpretation, from which the Book of Allah should be preserved. Furthermore, both the wording and context of the âyah rule out the possibility that the âyah refers to a woman who is both mushrika and an adulteress. How could such an interpretation be when we know that Allah has made marrying free women (ḥarâ’ir) and bondwomen (ima’) conditional upon their being chaste (muḥṣanât), as per His saying in âyah 3 of Sûrat Al-Nisâ’ [The conditionality of a woman’s chastity is not explicitly mentioned in Sûrat Al-Nisâ’, 4:3].

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

One aspect of the bayân (expression of meaning and communication of intent of Allah’s words) of the Quran is that some scholars may posit an interpretive view on a certain âyah. This same âyah, however, may include a qarîna (circumstantial evidence—that is, a word or a phrase in the Text that helps the reader understand the meaning and intent of the Text) that rules out such an interpretive view. The present âyah is one such example of this characteristic of the bayân of the Quran. Scholarly opinion has differed over the interpretation of this âyah. Some say the word ‘yankiḥ’ (marry) occurring in the âyah refers to the act of sexual intercourse (in the sense of adultery, or zina, fornication). Others say the term ‘yankiḥ’ signifies a marriage contract (nikah, zawaj). As regards this latter opinion, it is disqualified by a qarîna included in the âyah itself; namely, the mention by Allah, in the same âyah, of the terms ‘mushrik’ (idolater) and ‘mushrika’ (idolatress), for a Muslim man guilty of zina is not allowed to wed a mushrika, as per the statement of Allah:

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

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

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

Now, the fact that Islam categorically outlaws intermarriage between Muslims and mushrikin (idolaters) indicates that the term ‘yankiḥ’ (marry) in the âyah  refers to the act of sexual intercourse—in the sense of adultery—not in the sense of  a marriage contract (nikâḥ). This is because the latter interpretation (marriage contract) is irreconcilable with the mention of the terms ‘mushrik’ and ‘mushrika’ in the same âyah. So far then, we are left with a situation in which scholarly opinion is divided, as a separate question, on the legal status of the act of marrying a person who has previously fornicated.

Resolution

Now, let us evaluate the arguments of each side on the meaning of the present âyah. Ibn Al-Qayyim’s statement (that the view that the âyah , specifically the word ‘yankiḥ’ signifies ‘coitus’ does not behoove the dignity of the Quran) is dismissed by the fact that such an authority of the caliber of Ibn ʿAbbâs, whose profound knowledge of the Quran and the Arabic language is universally recognized, in fact, subscribed to precisely this interpretation. I am certain that Ibn Al-Qayyim did not doubt for a moment Ibn ʿAbbâs’ immense veneration for the Quran. Commenting on Ibn ʿAbbâs’ interpretation of the term ‘yankiḥ’ occurring in the âyah, Imam Abû Bakr ibn Al-ʿArabi remarked: “This is a sound interpretation.” As for the view expressed by Ibn Al-Musayyab and Imam Al-Shâfiʿi that âyah 3 of Sûrat Al- Nûr (24) is abrogated by âyah 32 of Sûrat Al-Nûr (24), it is far-fetched. According to the established juristic principles of Imams Al-Shâfiʿi, Mâlik, and Aḥmad, a general Text (ʿam) may not abrogate a particular Text (khâṣ). Moreover, a khâṣ Text overrides an ‘am Text absolutely, whether the khâṣ is revealed before or after the ʿam. In addition, it is well known that âyah 32 of Sûrat Al-Nûr (24)

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

is of a more general application than is âyah  3 of Sûrat Al-Nûr (24). A man who fornicates shall not marry anyone but a woman who fornicates or an idolatress. And as for the woman who fornicates, none shall she marry but a fornicator or an idolater—and such marriage is forbidden for the believers. [Sûrat Al-Nûr, 24:3] Hence, âyah 32 of Sûrat Al-Nûr (24) cannot possibly be said to abrogate âyah 3 of Sûrat Al-Nûr (24). Only the principles of the legal school of Abû Hanifah allow for such a conclusion. Having said this, there is no doubt that this âyah (Sûrat Al-Nûr, 24:3) is one of the most perplexing passages of the Quran. This is because to say that the term ‘yankiḥ’ denotes ‘to marry’ does not sit well with the appearance in this âyah of the terms ‘mushrik’ and ‘mushrika’. On the other hand, maintaining that the term ‘yankiḥ’ means ‘to copulate’ flies in the face of the aḥâdîth   related to the occasion of revelation of the âyah , which leave no doubt that the term ‘yankiḥ’ in the âyah  means ‘to marry’! As far as I know, there is only way out of this Textual difficulty, which is not wholly free from arbitrariness. It goes as follows: The soundest position according to legal theorists (al-uṣuliyyûn), as expounded in the treatise Al-Furqân of Ibn Taimiyya who ascribed the view to eminent authorities in the four schools of fiqh, is that when dealing with Texts comprising what is known in Arabic as al–alfâẓ  al-mushtaraka (equivocal terms), one should allow all the possible meanings that such Texts bear. Now, the term ‘yankiḥ’ is an equivocal term (lafẓ mushtarak), which means either ‘to copulate’ (or to perform coitus) and ‘to wed.’ Thus, and based on the foregoing juristic principle regarding al–alfâẓ al-mushtaraka, the term ‘yankiḥ’ in the âyah should be held to mean both ‘to marry’ and ‘to copulate.’ That being said, the interpretive problem caused by the terms ‘mushrik’ and ‘mushrika’ mentioned in the âyah can be solved by interpreting the term ‘yankiḥ’ as meaning ‘to copulate.’ And Allah knows best. However, one should know that the majority of the people of knowledge permit marrying a person previously an adulterer or an adulteress, and that the scholars who prohibit such a marriage contract are in the minority. Know also that allowing a chaste man to marry a reformed adulteress, or the reverse, doesn’t necessarily make such man a “cuckold” (dayyûth), a man who condones his wife’s infidelity. For he has married her in order to protect her and prompt her along the path of chastity by words, deeds, and strict supervision. And if she should happen to become involved in a depraved act without his knowledge and in spite of his vigilance, then that doesn’t render him a dayyûth, nor should he be blamed for it. I for one, recommend marrying chaste, religious women and men, for there are a wealth of âyahs and aḥâdîth encouraging this practice.

And Allah knows best.