Surah 4. An-Nisaa'

34This prohibition applies both to the real mother and to the step-mother and both are unlawful. It also applies to the mother of the father and to the mother of the mother.

Experts have differed as to whether the woman with whom the father has had illicit relations is also unlawful for the son or not. Some of the earlier jurists do not consider her unlawful, but some others not only consider her unlawful for the son but also the woman whom the father has touched lustfully with the hand. There has also been a difference of opinion as to whether the woman with whom the son has had an illicit relation is unlawful for the father and whether the man with whom the mother or the daughter has had illicit relation becomes unlawful for both the mother and the daughter. There have been lengthy controversies concerning the legal niceties of this matter, but a little thinking will show that the existence of a wife who is also coveted by the husband's father or his son, or whose mother or daughter is also coveted by the husband himself, cannot bode well for a righteous society. Divine Law in this matter does not tolerate the legal hair splitting on the basis of which fine distinctions are made between marriage and after marriage, touching with the hand and casting of looks, etc. The simple thing is that in family life existence of sexual relations of the father and the son with one and the same woman, or of the mother and the daughter with one and the same man, is bound to corrupt the family, and the Divine Law cannot tolerate it. This is supported by the following two Traditions of the Holy Prophet:

(1) "The mother and the daughter of the woman become unlawful for the man who cast a look at her sexual organs."

(2) "God does not like even to look at a man who casts a gaze at the sexual organs of the mother and of her daughter."

35The prohibition about daughter also applies to the daughter of the son and the daughter of the daughter. There is, however, a difference of opinion in regard to a girl born of an illicit relationship. Imam Abu Hanifah, Imam Malik and lmam Ahmad-bin-Hanbal (may Allah bless them all) are of the opinion that she too is unlawful like the lawful daughter, but Imam Shafi 'i does not consider an illegitimate daughter unlawful. But the very idea is repugnant that one should marry a girl about whom one has the knowledge that she is of one's own seed.

36This applies to the real sister as well as to the foster sisters from the father's and the mother's side.

37All these relations are prohibited, irrespective of whether they are real or step from the father's side or from the mother's side. The sister of the father or mother, whether real or step, is unlawful for the son. Similarly the daughters of the brothers and sisters whether they are real or step are unlawful for a person like his own real daughter.

38The consensus of opinion is that the woman who suckled a boy or a girl should be treated as the real mother and her husband as the real father with regard to this prohibition. All those relations that have been made unlawful in respect of the real mother and real father are also prohibited in respect of the foster mother who has suckled and in respect .of her husband. This is based on a Tradition of the Holy Prophet which is to this effect: "Suckling makes unlawful what blood makes unlawful. " There is, however, a difference of opinion as to the minimum quantity of milk that is suckled. According to Imam Abu Hanifah and Imam Malik, if the child suckles milk equal to that minimum quantity that breaks the fast, the woman shall be treated as its real mother for marriage relations. But Imam Ahmad is of the opinion that the prohibition shall take place if the child suckles the woman at least three times and according to Imam Shafi `i at least five times. There is also a difference of opinion as to the age of the child at the time of suckling that brings prohibition. Below are given the opinions of the jurists:

(1) Hadrat Umm Salamah, Ibn `Abbas, Zuhri, Hasan Basri, Qatadah, `Ikrimah, and Auza`i are of the opinion that if the child is suckled during the period when it has not yet been weaned and it lives only on suckling, the prohibition shall be effective; but if it is suckled after it has been weaned, it will not apply; for this is like drinking water. There is also a saying of Hadrat `Ali to the same effect.

(2) Hadrat `Umar, Ibn Mas`ud, Abu Hurairah and Ibn `Umar (Allah be pleased with them) are of the opinion that the prohibition will be effective if the child is suckled at any time up to the age of two. Imam Shaafi `i, Imam Ahmad, Imam Abu Yusuf, Imam Muhammad and Sufyan Thauri from among the jurists also agree to this. There is also a saying of Imam Abu Hanifah to the same effect. Imam Malik also agrees to this, but he says that the prohibition shall apply even if a month or two exceeds the time limit of two years.

(3) According to a well-known saying of Imam Abu Hanifah and Imam Zufar, the prohibition shall apply if the child is suckled during the suckling period, which extends `up to the age of two years and a half

(4) Hadrat 'A' ishah is of the opinion that the prohibition shall apply, if one is suckled at any time whatsoever, irrespective of age. An authentic saying of Hadrat `Ali also supports the same and 'Urwah bin Zubair, 'Ata', Laith bin Sa'd and Ibn Hazm from among the jurists have adopted the same opinion.

39There is a difference of opinion as to whether the mere event of nikah (marriage ceremony) with a woman makes her mother unlawful or not. Imam Abu Hanifah, Malik, Ahmad and Shafi `i are of the opinion that this alone makes her mother unlawful but Hadrat "Ali is of the opinion that unless one has had any conjugal relation with her, her mother shall not become unlawful for him.

40The wife's daughter is unlawful in any case, whether she has been brought up in the house of the step-father or not. Allah has used these words only to show the great delicacy of the relation. There is almost a consensus of opinion among the jurists that the step-daughter is unlawful in any case whether one has brought her up or not.

41The significance of "who are from your loins" is that the widows or the divorced wives of those whom one has adopted as sons are not unlawful. The prohibition applies only to the wives of the sons who are of one's own seed. Likewise, the wives of the grandsons are also unlawful.

42Likewise it is unlawful to keep the aunt and her real niece as wives at one and the same time. The principle is that no two women who would have been unlawful for each other if one of them had been a man should be kept as wives at one and the same time.

43That is, "No action will be taken for the transgression committed during the days of 'ignorance', by keeping two sisters as wives at one and the same time." (Please also see E.N. 32 above). However, one shall have to divorce one of the two sisters thus married during the time of un-belief after one has become a Muslim.

44That is, those women who become prisoners of war, while their unbelieving husbands are left behind in the War Zone, are not unlawful because their marriage ties are broken by the fact that they have come from the War Zone into the Islamic Zone. It is lawful to marry such women, and it is also lawful for those, in whose possession they are, to have sexual relations with them. There is, however, a difference of opinion as to whether such a woman is lawful, if her husband is also taken a prisoner along with her. Imam Abu Hanifah and those of his way of thinking are of the opinion that the marriage tie of such a pair would remain intact but Imam Malik and Shafi 'i, are of the opinion that it would also break.

As there exist many misunderstandings in the minds of the people concerning the slave-girls taken as prisoners of war, the following should be carefully studied:

(1) It is not lawful for a soldier to have conjugal relations with a prisoner of war as soon as she falls into his hands. The Islamic Law requires that all such women should be handed over to the government, which has the right to set them free or to ransom them, or to exchange them with the Muslim prisoners in the hands of the enemy, or distribute them among the soldiers. A soldier can cohabit only with that woman who has been formally given to him by the government.

(2) Even then, he shall have to wait for one monthly course before he can cohabit with her in order to ensure whether she is pregnant or not; otherwise it shall be unlawful to cohabit with her before delivery.

(3) It does not matter whether the female prisoner of war belongs to the people of the Book or not. Whatever her religion, she becomes lawful for the man to whom she is formally given.

(4) None but the one to own the slave-girl is given has the right to "touch her." The offspring of such a woman from his seed shall be his lawful children and shall have the same legal rights as are given by the Divine Law to the children from one's loins. After the birth of a child she cannot be sold as a slave-girl and shall automatically become free after her master's death.

(5) If the master marries his slave-girl with another man, he forfeits his conjugal rights over her, but retains other rights such as service from her.

(6) The maximum limit of four has not been prescribed for slave-girls as in the case of wives for the simple reason that the number of female prisoners of war is unpredictable. The lack of limit does by no means provide a license for the well-to-do people to buy any number of slave-girls for licentious purposes.

(7) The proprietary rights over a slave, male or female, as given to a person by the government are transferable like all other legal proprietary rights.

(8) The handing over of the proprietary rights over a slave-girl to a man formally by the government makes her as much lawful for him as the giving of the baud of a free woman to a man by her parents or guardian through nikah (marriage ceremony). Therefore, there is no reason why a man who does not hold marriage in detestation should hold sexual intercourse with a slave-girl in detestation.

(9) When once the government hands over the female prisoner of war to someone, it has no right whatever to take her back from him, just as the parent or guardian has no right to take back a woman after she is handed over to a man through nikah.

(10) It should also be noted well that if a military commander temporarily distributes female prisoners of war among the soldiers for sexual purposes, or permits them to have sexual relations for the time being, such an act shall be unlawful and there is absolutely no difference between this and fornication, and fornication is a crime according to the Islamic code. (For detailed discussion please refer to my books, Tafhimat II and Rasa `il-o-Masa 'il I).