LEGITIMIZING A HARAAM & HARAAM MARRIAGES

[Fahm'us Salaf]

The Issue of Legitimizing a Haraam (Sin); Censure & Analysis of the Claim that Those who Commit Haraam Marriages Such as Marriage with the Mushrikin Would Therefore Become Kafir

Bismillah, Hamidan, Musalliyan wa Bad;

With the permit and beneficence of Allah (Ta’ala), we are going to deal with the issue of legitimizing a Haraam by action, which is a matter discussed frequently and also as its continuation, whether those who commit Haraam marriages such as the marriage with the Mushrikin become Kafir or become a sinner as long as they do not make Istihlaal (make it Halal i.e., permissible). Some people of today (as no such views reached us from scholars of the past) claim that: Nikah (marriage contract) in Islam is legitimated to differentiate between Haraam (unlawful) and Halaal (permissible) and therefore it is to give permit to woman who is originally Haraam. Therefore according to them whoever commits marriage with a Mushrik woman which is Haraam by the way of Nikah contract; he legitimates and makes with his act Halaal of something that is Haraam originally, for this reason becomes Kafir. Some claim that the same person becomes Kafir due to committing an act that is Haraam by the Ijmaa (consensus) which caused him to oppose to the Ijmaa. As if there was no Ijmaa on other sins such as Hamr (alcohol), gambling etc. They continue further that according to this Baatil (false) Usuol (methodology) of theirs, the one who commits any sin which is a sin according to the Ijmaa is Kafir!..

These people bring various evidences to support their claim. We are going to debate these evidences they bring forth to support their claim Inshallah. As far as we can see this issue is being discussed either concerning the marriage with the Mushrikin or concerning the continuation of the Nikah with the Mushrikin which was done in the past. This is the most common type of Haraam marriage that is known in todays' world. Some people (there is no Ahl Ilm i.e., people of knowledge amongst them) first claimed that those who married with the Mushrikin or those who continue their Marriage contract with them, to be Kafir. Then they claimed (to legitimate their Baatil Usuol) that this Hukm (ruling) includes all types of Haraam marriages such as marriage with a Mahram (close relatives that marriage is Haraam with), milk kinship etc., (which are listed in the Ayah, an-Nisa 4/23-24 and in other Nass) are Kufr. Implication of their Madhhab is; all Haraam acts that are done by the way of contract are Kufr such as contract of Riba (interest) and other Haraam types of businesses that done by the way of contract.

After that they included many acts of Haraam into this so-called ‘Legitimating of a Haraam’ such as drinking Hamr, playing gamble, selling Haraam goods etc. As it was for all the other Bid’ah (innovation), it is the same in this Bid’ah which is so-called legitimating of Haraam as well as, the content of it was a point at the beginning then it became bigger and bigger and right now it still continues getting greater in the hand of the Juhala (ignorant). It is possible to see many Fatawa are being issued by the Juhala in opposition of each other. So much that according to them, the one who drinks Hamr in public becomes Kafir however the one who kills in public or the one who oppresses his parents in public etc., does not become Kafir. All of these views that we had mentioned neither have basis from the Salaf as-Salihin (pious predecessors) nor not based upon clearly indicating Nass from the Kitab and the Sunnah. The owners of this view are trying to back up their view by commenting on the Nass and making Ta’wil of the statements of the Ulama (scholars). In this work we are going to prove that the Dalail (evidences) that they bring out to support their view are not suiting to be Dalil (evidence) for their Baatil views with the statements from the Ulama Inshallah.

At first we are going to take in hand and verify the Hadith which is introduced by the claimant who claim that Haraam marriages are Kufr as the most Muhkam (firm) Dalil that the one who is executed due to marrying with his step mom. Since we are dealing with this Hadith, it is better to mention –as it will be understood clearly when we quote the statements of the Ulama- that this Hadith is a great Dalil for; Istihlaal being done by the way of I’tiqad (creed) and statement and also it can be done by the way of act. Our objection is not for quoting this Hadith as a Dalil against the Murji’ah of today who claim that the matters; Tashri (lawmaking) and Istihlaal are limited with I’tiqad. If this was the case, we would not have any objection to it. However with the contemporary Murji’ah limiting the term Istihlaal with I’tiqad, those who claim legitimating of Haraam is Kufr, in opposition to the contemporary Murji’ah developed this view of theirs by going into extremes with regards to Istihlaal by act so that they make the term larger and larger so much that according to their Usuol very little people who commit Haraam are saved from being Kafir. This is what our objection is all about. Also, we are saying that the act of one who married with the Mushrikin is an ill-favored Haraam and we have no intention to defend those who commit this repulsive crime which is Haraam. We are distant from them. However we are against the newly innovated Usuol which is contradictory to the Usuol of Ahl Sunnah for the sake of prohibiting those who commit Haraam marriages. And in this work our aim is to reveal this Baatil view and to clarify the fact that such claim has no basis from the Salaf.

We seek help of Allah (Ta’ala) to be successful.

[Fahm'us Salaf]

The Hadith Regarding the Man who Married his Fathers Wife

At first, we are going to quote slightly different versions of the Hadith which are narrated in the books of Hadith. This Hadith was recorded by many Muhaddith (scholar of Hadith). We will mention only those narrations that have differences in wording. Also we will mention the state of this narration by quoting the statements of the scholars Inshallah.

Abu Dawud narrated it in the Kitab al-Hudud (Book of Punishment) under the  chapter: A man who commits Zina (adultery) with a Mahram relative (close relatives that marriage with them is Haraam)

بَابٌ فِي الرَّجُلِ يَزْنِي بِحَرِيمِهِ
4456 - حَدَّثَنَا مُسَدَّدٌ، حَدَّثَنَا خَالِدُ بْنُ عَبْدِ اللَّهِ، حَدَّثَنَا مُطَرِّفٌ، عَنْ أَبِي الْجَهْمِ، عَنِ الْبَرَاءِ بْنِ عَازِبٍ، قَالَ: «بَيْنَا أَنَا أَطُوفُ عَلَى إِبِلٍ لِي ضَلَّتْ، إِذْ أَقْبَلَ رَكْبٌ - أَوْ فَوَارِسُ - مَعَهُمْ لِوَاءٌ، فَجَعَلَ الْأَعْرَابُ يَطِيفُونَ بِي لِمَنْزِلَتِي مِنَ النَّبِيِّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ، إِذْ أَتَوْا قُبَّةً، فَاسْتَخْرَجُوا مِنْهَا رَجُلًا فَضَرَبُوا عُنُقَهُ، فَسَأَلْتُ عَنْهُ، فَذَكَرُوا أَنَّهُ أَعْرَسَ بِامْرَأَةِ أَبِيهِ»

4456- Narrated al-Bara ibn Azib (radiyallahu anh): While I was wandering in search of my camels which had strayed, a caravan or some horsemen carrying a standard came forward. The Bedouin began to go round me for my position with Nabi sallallahu alayhi wa sallam. They came to a domed structure, took out a man from it, and struck his neck. I asked about him. They told me that he had married his father's wife.

حَدَّثَنَا عَمْرُو بْنُ قُسَيْطٍ الرَّقِّيُّ، حَدَّثَنَا عُبَيْدُ اللَّهِ بْنُ عَمْرٍو، عَنْ زَيْدِ بْنِ أَبِي أُنَيْسَةَ، عَنْ عَدِيِّ بْنِ ثَابِتٍ، عَنْ يَزِيدَ بْنِ الْبَرَاءِ، عَنْ أَبِيهِ، قَالَ: لَقِيتُ عَمِّي وَمَعَهُ رَايَةٌ، فَقُلْتُ لَهُ: أَيْنَ تُرِيدُ؟ قَالَ: «بَعَثَنِي رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ إِلَى رَجُلٍ نَكَحَ امْرَأَةَ أَبِيهِ، فَأَمَرَنِي أَنْ أَضْرِبَ عُنُقَهُ، وَآخُذَ مَالَهُ»

4457- Narrated Yazid ibn al-Bara ibn Azib from his father that he said: I met my uncle who was carrying a standard. I asked him: Where are you going? He said: Rasulullah sallallahu alayhi wa sallam has sent me to a man who has married his father's wife. He has ordered me to cut off his head and take his property.

Tirmidhi narrated it in Kitab al-Ahkaam (Book of Rulings) under the chapter what has been related about a man who married a woman his father was married to (previously)

بَابٌ فِيمَنْ تَزَوَّجَ امْرَأَةَ أَبِيهِ
1362 - حَدَّثَنَا أَبُو سَعِيدٍ الأَشَجُّ قَالَ: حَدَّثَنَا حَفْصُ بْنُ غِيَاثٍ، عَنْ أَشْعَثَ، عَنْ عَدِيِّ بْنِ ثَابِتٍ، عَنْ البَرَاءِ، قَالَ: مَرَّ بِي خَالِي أَبُو بُرْدَةَ بْنُ نِيَارٍ وَمَعَهُ لِوَاءٌ، فَقُلْتُ: أَيْنَ تُرِيدُ؟ قَالَ: «بَعَثَنِي رَسُولُ اللَّهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ إِلَى رَجُلٍ تَزَوَّجَ امْرَأَةَ أَبِيهِ أَنْ آتِيَهُ بِرَأْسِهِ»

1362- Narrated from al-Bara: "My maternal uncle Abu Burdah Ibn Niyar passed by me and he had a flag with him. I said: Where are you going? He said: Rasulullah sallallahu alayhi wa sallam dispatched me to a man who married a woman his father had married to: that I should bring him his head."

وَفِي البَابِ عَنْ قُرَّةَ المُزَنِيِّ: حَدِيثُ البَرَاءِ حَدِيثٌ حَسَنٌ غَرِيبٌ

Tirmidhi after narrating it said: Concerning this chapter it was also narrated from Qurratu’l-Muzani. Hadith of Bara is Hasan Gharib (a good Hadith that is strange to come from this chain of narration).

This Hadith also narrated from Bara (radiyallahu anh) by the collectors of Sunnan; Nasai, Ibn Maajah and Darimi (Nikah, #2285).

حَدَّثَنَا إِسْمَاعِيلُ بْنُ مُوسَى، حَدَّثَنَا هُشَيْمٌ، ح وَحَدَّثَنَا سَهْلُ بْنُ أَبِي سَهْلٍ، حَدَّثَنَا حَفْصُ بْنُ غِيَاثٍ، جَمِيعًا عَنْ أَشْعَثَ، عَنْ عَدِيِّ بْنِ ثَابِتٍ، عَنِ الْبَرَاءِ بْنِ عَازِبٍ، قَالَ مَرَّ بِي خَالِي - سَمَّاهُ هُشَيْمٌ فِي حَدِيثِهِ الْحَارِثَ بْنَ عَمْرٍو - وَقَدْ عَقَدَ لَهُ النَّبِيُّ صلى الله عليه وسلم لِوَاءً فَقُلْتُ لَهُ أَيْنَ تُرِيدُ فَقَالَ بَعَثَنِي رَسُولُ اللَّهِ صلى الله عليه وسلم إِلَى رَجُلٍ تَزَوَّجَ امْرَأَةَ أَبِيهِ مِنْ بَعْدِهِ فَأَمَرَنِي أَنْ أَضْرِبَ عُنُقَهُ ‏.‏

It was narrated that Bara bin Azib (radiyallahu anh) that he said: “My maternal uncle passed by me -(one of the narrators) Hushaim named him in his narration as Harith bin Amr- and the Nabi sallallahu alayhi wa sallam had given him a banner to carry. I said to him: Where are you going? He said: Rasulullah sallallahu alayhi wa sallam has sent me to a man who married his father's wife after he died, and has commanded me to strike his neck (i.e. execute him).” (Ibn Maajah, Hudud, #2607)

أَخْبَرَنَا أَحْمَدُ بْنُ عُثْمَانَ بْنِ حَكِيمٍ، قَالَ حَدَّثَنَا أَبُو نُعَيْمٍ، قَالَ حَدَّثَنَا الْحَسَنُ بْنُ صَالِحٍ، عَنِ السُّدِّيِّ، عَنْ عَدِيِّ بْنِ ثَابِتٍ، عَنِ الْبَرَاءِ، قَالَ لَقِيتُ خَالِي وَمَعَهُ الرَّايَةُ فَقُلْتُ أَيْنَ تُرِيدُ قَالَ أَرْسَلَنِي رَسُولُ اللَّهِ صلى الله عليه وسلم إِلَى رَجُلٍ تَزَوَّجَ امْرَأَةَ أَبِيهِ مِنْ بَعْدِهِ أَنْ أَضْرِبَ عُنُقَهُ أَوْ أَقْتُلَهُ ‏

It was narrated that al-Bara (radiyallahu anh) said: "I met my maternal uncle who was carrying a flag (for an expedition) and I said: Where are you going? He said: Rasulullah sallallahu alayhi wa sallam is sending me to a man who has married his father's wife after he died, to strike his neck or kill him." (Nasai, Nikah, #3331)

أَخْبَرَنَا عَمْرُو بْنُ مَنْصُورٍ، قَالَ حَدَّثَنَا عَبْدُ اللَّهِ بْنُ جَعْفَرٍ، قَالَ حَدَّثَنَا عُبَيْدُ اللَّهِ بْنُ عَمْرٍو، عَنْ زَيْدٍ، عَنْ عَدِيِّ بْنِ ثَابِتٍ، عَنْ يَزِيدَ بْنِ الْبَرَاءِ، عَنْ أَبِيهِ، قَالَ أَصَبْتُ عَمِّي وَمَعَهُ رَايَةٌ فَقُلْتُ أَيْنَ تُرِيدُ فَقَالَ بَعَثَنِي رَسُولُ اللَّهِ صلى الله عليه وسلم إِلَى رَجُلٍ نَكَحَ امْرَأَةَ أَبِيهِ فَأَمَرَنِي أَنْ أَضْرِبَ عُنُقَهُ وَآخُذَ مَالَهُ

It was narrated from Yazid bin al-Bara that his father said: "I met my maternal uncle who was carrying a flag (for an expedition) and I said: Where are you going? He said: Rasulullah sallallahu alayhi wa sallam is sending me to a man who has married his father's wife, and he has commanded me to strike his neck (kill him) and seize his wealth." (Nasai, Nikah, #3332)

Other than the collectors of Sunnan many of the Muhaddith (Hadith scholars) recorded it. Imam Baghawi in his Sharh’us Sunnah (10/305) while degrading it as Hasan Gharib, as Tirmidhi did. Ibn Shaybah with his Sanad (narrator chain) narrated it from Bara (radiyallahu anh) and Hafidh Ibn Hajar in his book Ithaf’ul Hiyara (4/32) commented his Sanad as Rijal Sıdk (truthful narrators). Hakim narrated the Hadith of Bara (radiyallahu anh) in his Mustadrak (2/208) and stated that it is Sahih (sound) by the criteria of Imam Muslim.

[Fahm'us Salaf]

As Tirmidhi had pointed out the same Hadith was narrated from Qurrat'ul Muzani. After narrating the Hadith of Bara (radiyallahu anh) which we have already quoted above, Ibn Majaah then recorded the wording of the Hadith of Qurrat as follows:

حَدَّثَنَا مُحَمَّدُ بْنُ عَبْدِ الرَّحْمَنِ ابْنُ أَخِي الْحُسَيْنِ الْجُعْفِيِّ قَالَ: حَدَّثَنَا يُوسُفُ بْنُ مَنَازِلَ التَّيْمِيُّ قَالَ: حَدَّثَنَا عَبْدُ اللَّهِ بْنُ إِدْرِيسَ، عَنْ خَالِدِ بْنِ أَبِي كَرِيمَةَ، عَنْ مُعَاوِيَةَ بْنِ قُرَّةَ، عَنْ أَبِيهِ قَالَ: «بَعَثَنِي رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ إِلَى رَجُلٍ تَزَوَّجَ امْرَأَةَ أَبِيهِ، أَنْ أَضْرِبَ عُنُقَهُ وَأُصَفِّيَ مَالَهُ»

2608- It was narrated from Mu'awiyah bin Qurrat (ibn Ayas ibn Khilal) that his father said: “Rasulullah sallallahu alayhi wa sallam sent me to a man who had married his father's wife after he died, to strike his neck (execute him) and confiscate his wealth.” (Ibn Majaah, #2608, Hudud, #35)

Busiri said the following in Zawaidu Ibn Majaah: This is a Sahih Isnaad, its Rijal (men) are Sika (reliable). This was also narrated by Nasai, Daraqutni, Hakim and Bayhaqi in Sunnan al-Kubra. (Summarized from; Misbah’uz Zujjaja, 3/116)

Ibn Turkmani in his Sharh, al-Jawhar’un Nakiyy which is the Sharh of Sunnan al-Kubra of Bayhaqi stated that there is weakness on Khalid ibn Abi Karima, one of the narrators in the chain of this Hadith and also mentioned that in both Hadith which Ibn Majaah narrated the Hadith of Qurrat and the Hadith of Bara (radiyallahu anh), the allocation of one fifth of the wealth of the person who was killed (as it was booty of war) was not mentioned.

The issue of, Tahmis (allocating) of one fifth of the wealth of the person who was killed due to marrying his fathers wife, to the state was mentioned in some wordings of the Hadith of Qurrat. The Hadith with the wording: ‘one fifth was allocated’ narrated by Imam Tahawi (Sharhu Maan’il Asar, 3/130) and Tabari (Tahzib’ul Asar, Musnadu Ibn Abbas, 1/571) and also with the Isnaad of Khalid ibn Abi Karima, Mu’awiyyah ibn Qurrat, his father Qurrat was narrated. Ibn Qayyim after narrating the Hadith with the Ziyada (addition) of Khumus (i.e., one fifth) mentioned Yahya ibn Ma’in said this Hadith is Sahih.

[Fahm'us Salaf]

After quoting both Tariq (way) of the Hadith from Bara (radiyallahu anh) and Qurrat (radiyallahu anh) we would like to mention what the scholars said in general with regards to the Isnaad (chain) and Matn (text) of the Hadith.

Hafidh Ibn Hajar said the following with regards to the Hadith:

أَخْرَجَهُ أَحْمَدُ وَأَصْحَابُ السُّنَنِ وَفِي سَنَدِهِ اخْتِلَافٌ كَثِيرٌ وَلَهُ شَاهِدٌ مِنْ طَرِيقِ مُعَاوِيَةَ بْنِ مُرَّةَ عَنْ أَبِيهِ أَخْرَجَهُ بن مَاجَهْ وَالدَّارَقُطْنِيُّ وَقَدْ قَالَ بِظَاهِرِهِ أَحْمَدُ وَحَمَلَهُ الْجُمْهُورُ عَلَى مَنِ اسْتَحَلَّ ذَلِكَ بَعْدَ الْعِلْمِ بِتَحْرِيمِهِ بِقَرِينَةِ الْأَمْرِ بِأَخْذِ مَالِهِ وَقِسْمَتِهِ

This Hadith was narrated by Ahmad (ibn Hanbal) and the Ashab’us Sunnan. There are many Ikhtilaaf (dispute) concerning the Isnaad of the Hadith. The Hadith has a Shahid (witness) which comes from the Tariq of Mu’awiyyah ibn Qurrat from his father. This was narrated by Ibn Majaah and Daraqutni. Imam Ahmad took the Dhahir (apparent) of the Hadith, on the other hand Jumhur (majority) attribute it to those who made it Halal (permissible) although they knew it was Haraam. The wealth of the person who was killed being taken and divided, indicates this. (Fath’ul Bari, 12/118)

After narrating the wording differences of the Hadith Shawkani said:

وَلِلْحَدِيثِ أَسَانِيدُ كَثِيرَةٌ مِنْهَا مَا رِجَالُهُ رِجَالُ الصَّحِيحِ

This Hadith has many Isnaad, among them there are ones that are narrated by the Rijal of Sahih. (Nayl’ul Awtar, 8/322)

Ibn Qayyim while answering Hafidh Mundhiri who said that; there are many Ikhtilaaf on this Hadith and then implies the Hadith being Muzdarib (contradicts) due to it being narrated with different Isnaad and Matn (wording).

While responding to Hafidh Mundhiri -who said that; there are many Ikhtilaaf on this Hadith and then implies the Hadith being Muzdarib (contradicts) due to its being narrated with different Isnaad and Matn (wording)- Ibn Qayyim said that indeed this Hadith has many Isnaad which one strengths another therefore it is a Mahfudh Hadith that one can perform accordingly. (Ibn Qayyim, Tahzib’us Sunnan, 6/266-267; Jamal ibn Muhammad as-Sayyid, Ibn’ul Qayyim al-Jawziyyah wa Juhuduhu fi Khidmet’is Sunnat’in Nabawiyyah, 3/172)

These are the views of the Ulama (scholars) concerning the Hadith. Although it the Sıhhat (soundness) of the Hadith is spoken of, we see that most of the scholars recorded it and performed accordingly. However as Ibn Hajar pointed out, scholars made different Ta’wil concerning the Hadith. We will give place to the Sharh (explanation) of the Hadith in the next section, InshaAllah.

[Fahm'us Salaf]

Sharh of the Ulama to the Hadith of the Man Who Married His Fathers Wife

We are going to start bringing the explanations of this Hadith with Imam Bayhaqi. Muhaddith Bayhaqi among the Fuqaha (jurist) of Shafii narrated this Hadith from Imam Ahmad in his book Ma’rifat’us Sunani wa’l Athar under the heading Kitab’ul Murtad:

16637- قَالَ أَحْمَدُ: وَرُوِّينَا عَنْ عَدِيِّ بْنِ ثَابِتٍ , عَنْ يَزِيدَ بْنِ الْبَرَاءِ , عَنْ أَبِيهِ ,
قَالَ: " لَقِيتُ عَمِّي وَمَعَهُ رَايَةٌ , فَقُلْتُ: أَيْنَ تُرِيدُ؟ فَقَالَ: بَعَثَنِي رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ إِلَى رَجُلٍ نَكَحَ امْرَأَةَ أَبِيهِ , فَأَمَرَنِي أَنْ أَضْرِبَ عُنُقَهُ وَآخُذَ مَالَهُ " ,

16638 - أَخْبَرَنَاهُ أَبُو عَلِيٍّ الرُّوذْبَارِيُّ , أَخْبَرَنَا أَبُو بَكْرِ بْنُ دَاسَةَ , حَدَّثَنَا أَبُو دَاوُدَ , حَدَّثَنَا عَمْرُو بْنُ قُسَيْطٍ الرَّقِّيُّ , حَدَّثَنَا عُبَيْدُ اللَّهِ بْنُ عَمْرٍو , عَنْ زَيْدِ بْنِ أَبِي أُنَيْسَةَ , عَنْ عَدِيِّ بْنِ ثَابِتٍ ,. . . , فَذَكَرَهُ

16637- Ahmad said Adiyy ibn Sabit narrated from Yazid ibn Bara who narrated from his father (Bara ibn Azib) that he said: I met my uncle who was carrying a standard. I asked him: Where are you going? He said: Rasulullah sallallahu alayhi wa sallam has sent me to a man who has married his father's wife. He has ordered me to cut off his head and take his property.

16638- Same Hadith with a different Isnaad.

Bayhaqi after narrating the Hadith said:

16639 - قَالَ أَصْحَابُنَا: وَضَرْبُ الْعُنُقِ لَا يُجِبُّ نَفْسَ النِّكَاحِ دُونَ الِاسْتِحْلَالِ , فَكَأَنَّهُ اسْتَحَلَّهُ بَعْدَ اعْتِقَادِ تَحْرِيمِهِ فَصَارَ بِهِ مُرْتَدًّا فَوَجَبَ بِهِ ضَرْبُ عُنُقِهِ وَأَخْذُ مَالِهِ فَيْئًا , وَاللَّهُ أَعْلَمُ

Our companions (Shafii) said: Without making Istihlaal merely for the contract of Nikah, it does not necessitate to cut his head off. Therefore this person became Murtad (apostate) due to making Istihlaal after believing it to be Haraam and because of this it became Waajib (obligatory) to cut his head off and to take his wealth as Fay (non-militarily obtained property). Wallahu A’lam!.. (Bayhaqi, Marifat’is Sunani wa’l Athar, 12/263)

This statement of Bayhaqi clearly shows that merely proceed the contract of Nikah does not mean making Istihlaal and Irtidad (apostasy) which makes killing Waajib. Bayhaqi attributed this view to the Shafii’s indeed no matter it is from the Shafii’s or others, none of the Aimmah (pl. Imam) of the Islam stated that proceeding the contract of Nikah means Istihlaal. This will be clearly understood Inshallah when we quote later the statements of the Ulama in this regard. The reason for this person who was mentioned in the Hadith to be Murtad is due to his Kufr that he added over proceeding the contract of Nikah such as believing it to be Halaal and it is not proceeding the contract of Nikah. With this it became clear that those contemporary Juhala who claim that the one who proceeds contract of Nikah for Haraam marriages especially marriage with the Mushrikin becomes Kafir even if he does not believe it to be Halaal due to legitimizing a Haraam by proceeding the contract have said something which has no base at all. Claiming that the Silsilah Takfir should be performed because of it and those who does not accept it being Kufr becomes Kafir indicates all the Shafii Ulama and other than them who don’t make Takfir of them to be Kafir. It is impossible for the Ummah (nation) of Islam will not agree on Dalalah (misguidance). Dalil (proof) of being this statement Baatil (false) is the statement itself and there is no need to explain its being Baatil. Wallahu A’lam!..

[Fahm'us Salaf]

Bayhaqi later on under the heading Kitab’ul Hudud mentions this Hadith once again:

مَنْ وَقَعَ عَلَى ذَاتِ مَحْرَمٍ بِنِكَاحٍ أَوْ غَيْرِهِ

The one who had sexual relation with his Mahram by the way of Nikah or without it.

16852 - رُوِّينَا عَنْ أَبِي الْجَهْمِ , عَنِ الْبَرَاءِ بْنِ عَازِبٍ , قَالَ: إِنِّي " لَأَطُوفُ فِي تِلْكَ الْأَحْيَاءِ عَلَى إِبِلٍ لِي ضَلَّتْ فِي عَهْدِ النَّبِيِّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ إِذْ جَاءَ رَكْبٌ أَوْ فَوَارِسُ مَعَهُمْ لِوَاءٌ , فَجَعَلَ الْأَعْرَابُ يَلُوذُونَ بِي لِمَنْزِلَتِي مِنْ رَسُولِ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ , فَانْتَهَوْا إِلَيْنَا , فَأَطَافُوا بِقُبَّةٍ , فَاسْتَخْرَجُوا رَجُلًا , فَضَرَبُوا عُنُقَهُ , فَسَأَلْتُ عَنْ قِصَّتِهِ فَقِيلَ: وُجِدَ قَدْ عَرَّسَ بِامْرَأَةِ أَبِيهِ

16852- It was narrated to us from Bara ibn Azib (radiyallahu anh), from Abi Jahm that he said: During the era of Rasulullah sallallahu alayhi wa sallam I was wandering in search of my strayed camel in these places a caravan or some horsemen carrying a standard came forward. The Bedouin began to go round me for my position with Nabi sallallahu alayhi wa sallam. Then they went away from us. They came to a domed structure, took out a man from it, and struck his neck. I asked about him. They told me that he had sexual relation with his father's wife.

16853 - أَخْبَرَنَاهُ أَبُو عَبْدِ اللَّهِ الْحَافِظُ , حَدَّثَنَا أَبُو الْعَبَّاسِ بْنُ يَعْقُوبَ , حَدَّثَنَا الْحَسَنُ بْنُ عَلِيِّ بْنِ عَفَّانَ , حَدَّثَنَا أَسْبَاطُ بْنُ مُحَمَّدٍ , عَنْ مُطَرِّفٍ , قَالَ: وَحَدَّثَنَا أَبُو الْعَبَّاسِ , حَدَّثَنَا مُحَمَّدُ بْنُ إِسْحَاقَ , حَدَّثَنَا مُعَلَّى بْنُ مَنْصُورٍ , حَدَّثَنَا أَبُو زُبَيْدٍ , حَدَّثَنَا مُطَرِّفٌ , عَنْ أَبِي الْجَهْمِ مَوْلَى الْبَرَاءِ بْنِ عَازِبٍ , عَنِ الْبَرَاءِ ,. . . فَذَكَرَهُ. وَاللَّفْظُ لِحَدِيثِ أَبِي زُبَيْدٍ ,

16854 - وَرُوِّينَاهُ مِنْ حَدِيثِ يَزِيدَ بْنِ الْبَرَاءِ , عَنْ أَبِيهِ , وَفِيهِ: «إِلَى رَجُلٍ نَكَحَ امْرَأَةَ أَبِيهِ» , فَكَأَنَّهُ نَكَحَهَا وَعَرَّسَ بِهَا بِمَجْمُوعِ الرِّوَايَتَيْنِ , فَأَمَرَ بِقَتْلِهِ

16853- The same Hadith with a different Isnaad.

16854- In the Riwayah (narration) of Yazid ibn Bara from his father (Bara ibn Azib) it is referred as the man who proceeded Nikah with his fathers wife. With combining these two narrations, it becomes clear that the man proceeded Nikah with his fathers wife and had sexual relation (or wedding) with her and for this reason (Rasulullah) commanded him to be killed.

16855 - قَالَ الشَّافِعِيُّ فِي رِوَايَةِ الْمُزَنِيِّ فِيمَنْ تَزَوَّجَ بِأُمِّ امْرَأَتِهِ بَعْدَ دُخُولِهِ بِالْبِنْتِ وَهُمَا عَالِمَانِ , ثُمَّ أَصَابَهَا: أَقَمْنَا عَلَيْهِمَا الْحَدَّ , وَهُمَا زَانِيَانِ سَمَّيَا الزِّنَا بِاسْمِ النِّكَاحِ

16855- According to the narration of Muzani, Shafii said concerning the one who after having nuptial with is wife then both of them knowingly married with his wives mother that: We will perform Hadd punishment (of Zina) to them, they both are Zaniyan (adulterer) and they committed adultery with the name of Nikah. (Bayhaqi, Marifat’is Sunani wa’l Athar, 12/320)

As it is seen, after mentioning the man who had been referred to in the Hadith had both Nikah and sexual relation (marriage), Bayhaqi narrated from Shafii that as him, the one who had married and had relation with his mother-in-law the  Hadd punishment of Zina (adultery) was necessitated over them. Bayhaqi’s title for this chapter ‘The one who had sexual relation with his Mahram by the way of Nikah or without it’ also indicated it. Imam Shafii without paying any attention to the one who married his Mahram and called it as Nikah, accepted for him the Hadd punishment of Zina to be performed. Imam Shafii mentioned both Nikah and sexual relation (wedding) separately while speaking about this person who married with his mother in law. This is in opposition to the Ahl Dalalaah (People of Misguidance) of today who separate the rulings for the matter by claiming that proceeding a contract of Nikah with someone to whom marriage is Haraam is Kufr and the one who did the same thing without proceeding a contract of Nikah is Haraam. It is because Imam Shafii ruled for the one who had proceeded both Nikah and sexual relation at the same time with his Mahram Hadd punishment of Zina to be performed against him. Whereas according to the view of Ahl Baatil (People of Falsehood) the same person should be ruled with the Hadd punishment of Murtad due to legitimizing Haraam by proceeding the contract of Nikah. As it will come later, the punishment that Imam Shafii ruled concerning both marriage with his mother in law or other women amongst the Muhamarat (womenfalk which marriage is forbidden with them) is the Hadd punishment of Zina. Imam Malik and other than him are also on this view. With it, the Juhala innovated a Bid’ah that had not been said by the Islamic Ummah before by claiming that the Haraam marriages will be Kufr when the contract of Nikah is proceeded.

Wallahu Musta’an (Allah alone is the worthy of seeking help)!..

[Fahm'us Salaf]

Bayhaqi continues narrating the statements of Imam Shafii:

16856 - وَبَسَطَ الْكَلَامَ فِيهِ , ثُمَّ قَالَ: ثُمَّ جَاءَ مَنْ يَدَّعِي تَسْوِيَةَ الْأَخْبَارِ عَلَى مَذْهَبِهِ , وَحَمَلَ الْخَبَرَ الَّذِي رُوِّينَاهُ فِي هَذَا الْبَابِ عَلَى أَنَّهُ إِنَّمَا أَمَرَ بِقَتْلِهِ لِأَنَّهُ كَانَ قَدِ اسْتَحَلَّهُ , فَصَارَ بِهِ مُرْتَدًّا مُحَارِبًا

16857 - وَاحْتَجَّ بِمَا رَوَيْنَا فِي , حَدِيثِ يَزِيدَ بْنِ الْبَرَاءِ عَنْ أَبِيهِ , قَالَ لَقِيتُ عَمِّي وَمَعَهُ رَايَةٌ , فَقُلْتُ: أَيْنَ تُرِيدُ؟ قَالَ: «بَعَثَنِي رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ إِلَى رَجُلٍ نَكَحَ امْرَأَةِ أَبِيهِ , فَأَمَرَنِي أَنْ أَضْرِبَ عُنُقَهُ وَآخُذَ مَالَهُ»

16858 - وَبِحَدِيثِ مُعَاوِيَةَ بْنِ قُرَّةَ , عَنْ أَبِيهِ , أَنَّ «النَّبِيَّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ بَعَثَ جَدَّ مُعَاوِيَةَ إِلَى رَجُلٍ عَرَّسَ بِامْرَأَةِ أَبِيهِ أَنْ يَضْرِبَ عُنُقَهُ , وَيُخَمِّسَ مَالَهُ» ,

16859 - قَالَ: فَدَلَّ عَلَى أَنَّهُ كَانَ مُرْتَدًّا مُحَارِبًا , لِأَنَّ الْمُرْتَدَّ الَّذِي لَمْ يُحَارِبْ لَا يُخَمَّسُ مَالُهُ ,

16860 - وَهَذَا الَّذِي ذَكَرَهُ لَيْسَ فِي الْحَدِيثِ مِنْهُ شَيْءٌ لَا الِاسْتِحْلَالُ وَلَا الْمُحَارَبَةُ , وَلَوْ جَازَ دَعْوَى الِاسْتِدَلَالِ فِي هَذَا لَجَازَ مِثْلُهَا فِي زَنَا مَنْ رُجِمَ لِأَنَّ أَهْلَ الْجَاهِلِيَّةِ كَانُوا يَسْتَحِلُّونَ الزِّنَا ,

16856- (Shafii) after mentioning the matter in length, said: Then he came who claims the leveling of the narrations according to his Madhhab, and ascribed the Hadith had been narrated to us in this Bab (chapter) to that this man made Istihlaal therefore becoming a Muharib (combatant) Murtad (Rasulullah) commanded him to be killed.

16857- At this point he presented the Hadith that we have narrated from Yazid ibn Bara from his father as a Hujjah (evidence). I met my uncle who was carrying a standard. I asked him: Where are you going? He said: Rasulullah sallallahu alayhi wa sallam has sent me to a man who has married his father's wife. He has ordered me to strike his neck and take his property.

16858- In the same manner he presented the Hadith that Mu’awiyyah ibn Qurrat narrated from his father. Nabi sallallahu alayhi wa sallam sent me to a man who had sexual relation (wedding) with his father's wife, to strike his neck (execute him) and to allocate one fifth of his wealth.

16859- Then (the claimant) said: This Hadith indicates this man being Muharib Murtad. Since none other than the Muharib Murtad, one fifth of his wealth is allocated.

16860- However there is nothing in the Hadith indicating his Istihlaal or him being a Muharib. If this Istidlaal (inference) is Jaiz (permissible) then the same should be Jaiz for the Rajm (stoning to death) of the adulterer. It is because the Ahl Jaahiliyyah was making Istihlaal for the Zina (fornication).

Both Imam Shafii and Bayhaqi clearly refute the claim that the man who was mentioned in the Hadith made Istihlaal therefore he became Murtad. It is understood from the explanations of the Ulama that, let alone the man became Murtad due to making Istihlaal by proceeding contract of Nikah, there is an Ikhtilaaf (disagreement) amongst the scholars concerning the matter that whether he was Murtad or not. Since there is neither a statement nor an indication in the Hadith that informed us he was Murtad or that he made Istihlaal. As it was understood from the narrations, the Ulama that stated the man was Murtad, they said so; due to him being killed and his wealth being taken.

Even though it is constant that he married his fathers’ wife, there is no Ijmaa concerning his Takfir. The matter of fact is, unable to bring the Ijmaa with regards to his Takfir invalidates the claim Haraam marriages being Kufr is amongst the clear matters of Din and that the one that pauses on his Takfir would be made Takfir of. If proceeding contract of Nikah –according to their claim- indicated the Istihlaal was amongst the clear matters of Din, the Ulama would not have paused on applying the Hukm (ruling) of Takfir. It is not for the Juhala to find out something that even the Ulama had not found yet!

More over this man was a Muayyan (determined) person and there could be many other reasons other than the contract of Nikah for applying Takfir on him. This will be explained in details later Inshallah. None of the Ulama believed that he was Murtad, due to the contract of Nikah as the reason. There is non among the Salaf (predecessor) that had such explanation of this Hadith which some have claimed.

[Fahm'us Salaf]

After rejecting this man narrated in the Hadith was a Murtad, Imam Shafii then rejects the second claim that he was Muharib:

16861 - وَفِي حَدِيثِ أَبِي الْجَهْمِ عَنِ الْبَرَاءِ , «أَنَّهُمْ أَطَافُوا بِقُبَّةٍ , فَاسْتَخْرَجُوا رَجُلًا» فَأَيْنَ الْمُحَارَبَةُ هُنَا؟ ثُمَّ إِنْ كَانَ الْأَمْرُ عَلَى مَا قَالَ مِنَ الِاسْتِحَلَالِ فَهُوَ حُجَّةٌ عَلَيْهِ فِي أَنَّ مَالَ الْمُرْتَدِّ لَا يَكُونُ لِوَرَثَتِهِ , وَتَخْمِيسُهُ لَا يُنَافِي مَذْهَبَ الشَّافِعِيِّ فَإِنَّهُ يُوجِفُ الْخُمُسَ فِيمَا أَوْجَفَ عَلَيْهِ مِنَ الْغَنِيمَةِ , وَفِيمَا لَمْ يُوجِفْ عَلَيْهِ مِنَ أَمْوَالِ الْفَيْءِ ,

16862 - قَالَ الشَّافِعِيُّ: الْخُمُسُ ثَابِتٌ لِأَهْلِهِ فِي كُلِّ مَا أُخِذَ مِنْ مُشْرِكٍ غَنِيمَةً كَانَتْ أَوْ فَيْئًا , وَالْفَيْءُ مَا رَدَّهُ اللَّهُ عَلَى أَهْلِ دِينِهِ مِنْ مَالِ مَنْ خَالَفَ دِينَهُ ,

16863 - قَالَ أَحْمَدُ: وَإِنْ كَانَ فَعَلَهُ عَلَى وَجْهِ الِاسْتِحْلَالِ , فَهُوَ حُجَّةٌ عَلَيْهِ وُجُوبِ الْحَدِّ عَلَيْهِ , وَقَوْلُ الرَّاوِي: «إِلَى رَجُلٍ نَكَحَ امْرَأَةَ أَبِيهِ» يَدُلُّ عَلَى الْعَقْدِ , وَقَوْلُ الْآخَرِ: «إِلَى رَجُلٍ عَرَّسَ بِامْرَأَةِ أَبِيهِ» يَدُلُّ عَلَى الدُّخُولِ

16861- In the Hadith which Abu’l Jahm narrated from Bara (radiyallahu anh) it is stated: ‘They came to a domed structure, took out a man from it’ Where is Muharaba in it? Then if the issue was the Istihlaal as they (i.e., the Hanafis) claimed, this incident would be in opposition to their view concerning the wealth of Murtad is dividend between his inheritors. The issue of allocating one fifth of his wealth is not in opposition with the Shafii Madhhab. It is because as he found it suitable to allocate one fifth of the Ganimah (war booty) which no horse rode for also found it suitable (to allocate one fifth of the) Fay (non-militarily obtained property) which no horse rode for it.

[It is because the Ahnaf claim that the wealth of Murtad will divided between the inheritors. If the person who has mentioned in this Hadith Murtad, then his wealth would be divided between his inheritors and not allocated according to their Madhhab.]

16862- Imam Shafii said: Humus is constant for its people in everything that has been taken from the Mushrikin as Ganimah or Fay. Fay is something that Allah (Ta’ala) gives to the Ahl Din (People of the Religion i.e., Islam) from the wealth of those who are in opposition to the Din.

[Therefore allocating one fifth of his wealth does not necessarily indicates his being absolutely Murtad. This (allocated wealth) could be something that had been taken as Fay.]

16863- Imam Ahmad said: If his act actualized as Istihlaal then this is a Hujjah in opposition to those who accept this punishment as Hadd punishment. Statement of the Rawi (narrator) ‘to the man who married (Nikah) with his fathers wife’ is refers to the contract (of Nikah). The Latter statement ‘to the man who had sexual relation (wedding) with his fathers wife’ refers to the intercourse.

Imam Shafii therefore rejected both views that he became Murtad due to legitimizing a Haraam and also the view that he was a Muharib who fights against the Muslimin and stated that the fact of allocating one fifth of his wealth does not indicate that he is a Muharib Murtad.

The Statement of Imam Ahmad spreads light on the matter that there is Ikhtilaaf concerning whether this person was killed as Murtad or with the Hadd punishment.
 
Bayhaqi then at the end said:

16864 - وَقَدْ ذَهَبَ بَعْضُ أَهْلِ الْعِلْمِ إِلَى ظَاهِرِ الْخَبَرِ فِي إِيجَابِ الْقَتْلِ بِهِ بِكُلِّ حَالٍ لَعَظِيمِ التَّحْرِيمِ , وَذَهَبَ بَعْضُهُمْ إِلَى أَنَّ ذَلِكَ كَانَ قَبْلَ نُزُولِ الْحُدُودِ فِي سُورَةِ النُّورِ قَبْلَ بَيَانِ النَّبِيِّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ رَجْمَ الثَّيِّبَ الزَّانِيَ , فَلَمَّا نَزَلَتْ وَبَيَّنَ ذَلِكَ صَارَ الْأَمْرُ إِلَى ذَلِكَ قَالُوا: ثُمِّ أَنَّهُ إِنَّمَا نُسِخَ مِنْهُ كَيْفِيَّةَ الْقَتْلِ , فَأَمَّا أَصْلُ وُجُوبِ الْقَتْلِ فَإِنَّهُ لَمْ يَقُمْ دَلَالَةٌ إِلَى نَسْخِهِ فَهُوَ بَاقٍ عَلَى الْوُجُوبِ , وَاللَّهُ أَعْلَمُ

16864- Some amongst the Ahl Ilm (People of Knowledge) stated that according to the Dhahir of this Khabar (narration), due to the severity of sin that he performed should be killed in by all means. Some of them said that this was before the Hadd punishment of Zina revealed in Surah an-Nur and before the Hukm of Nabi sallallahu alayhi wa sallam concerning Rajm as a Hadd punishment of Zina for the married. Those who are in this view said: With this (incident and application) the way of killing was Nash (abrogated). (Meaning; instead of striking the neck, Rajm become as the law.) However for the one who fall into Zina in this manner, this punishment was not Nash (abrogated) and its Hukm is left permanent. Wallahu A'lam. (Bayhaqi, Marifat’us Sunani wa’l Athar, 12/320-322)

It is clear that the Ulama whom Bayhaqi quoted from are on the view that the punishment of killing is not prescribed for the Murtad but as a Hadd punishment for Zina, whereas in the Qissa (story), besides the contract of Nikah which the Ahl Dalalah accepted to be Kufr, there is Zina as well. Nevertheless some of the scholars accepted it as Hadd punishment for Zina. They tried to explain the punishment of killing due to having Zina with a Mahram. These scholars did not bind the killing of this man to the reason that he was a Murtad rather they attribute it (the punishment) to the severity of the sin that he had committed. Likewise for the Zina of a married person and Liwata (anal intercourse with a man or woman) there is the punishment of killing that is prescribed. In the presence of these scholars Marriage with a Mahram is not Kufr but a sin that has a punishment of killing as in the case of the doer of Zina while married and Liwata, neither are Kufr. Wallahu A’lam (Allah knows the best)!..

Quotes from Bayhaqi ends here. Inshallah next we are going to quote from Abu Ja’far at-Tahavi.

[Fahm'us Salaf]

Abu Ja’far at-Tahavi amongst the Hanafi Fuqaha in his renowned book Sharhu Maani’l Athar after mentioning the Hadith with different wordings, he said the following:

فَذَهَبَ قَوْمٌ إِلَى مَنْ تَزَوَّجَ ذَاتَ مَحْرَمٍ مِنْهُ وَهُوَ عَالِمٌ بِحُرْمَتِهَا عَلَيْهِ , فَدَخَلَ بِهَا أَنَّ حُكْمَهُ حُكْمُ الزَّانِي , وَأَنَّهُ يُقَامُ عَلَيْهِ حَدُّ الزِّنَا الرَّجْمُ أَوِ الْجَلْدُ وَاحْتَجُّوا فِي ذَلِكَ بِهَذِهِ الْآثَارِ. وَمِمَّنْ قَالَ بِهَذَا الْقَوْلِ أَبُو يُوسُفَ وَمُحَمَّدٌ رَحِمَهُمَّا اللهُ. وَخَالَفَهُمْ فِي ذَلِكَ آخَرُونَ , فَقَالُوا: لَا يَجِبُ فِي هَذَا حَدُّ الزِّنَا , وَلَكِنْ يَجِبُ فِيهِ التَّعْزِيرُ وَالْعُقُوبَةُ الْبَلِيغَةُ. وَمِمَّنْ قَالَ بِذَلِكَ أَبُو حَنِيفَةَ وَسُفْيَانُ الثَّوْرِيُّ رَحِمَهُمَا اللهُ.

Abu Ja’far said: Some people, accept that ruling of the one who even though he knew that it is Haraam to marry with the Mahram, married with her and then had sexual relation with her is the same as Zina doer (fornicator) and the Hadd punishment of Zina, Rajm (in the case of the married) or Jalda (whipped for a hundred lashes of moderate intensity in the case of the unwed) and brought these Athar (narrations) as a Dalil (evidence).

Amongst those who stated this view are (the most renowned students of Abu Hanifa) Abu Yusuf and Muhammad (rahimahullahuma).

Some people oppose with the regarding this Hukm and said: No need to perform the Hadd punishment of Zina in this case. However Tazir (discretionary crime) and a harsh penalty should be preformed. Amongst those who accept this view are Abu Hanifah and Sufyan ath-Thawri (rahimahullahuma).

If attention is paid to it, Tahawi narrated that some of the scholars found it suitable to perform the Hadd punishment of Zina to the one who proceeded the contract and had sexual relation with her. As seen in the quote, these scholars mentioned both the terms Nikah and sexual relation and stated that the Hadd punishment of Zina shall be performed over him even though they knew he proceeded the contract of Nikah. According to this view; if the person who did a Haraam marriage contract and had sexual relation with the Mahram then his punishment would be Rajm if he was married yet if he was single then his punishment would be a hundred lashes. Whereas according to those empty headed people who claim that proceeding contract of Nikah with the Kuffar is Kufr, he should had been executed due to being Murtad by proceeding a contract of Nikah. However as it is clearly seen that, no one except these empty headed people, make such claim. Regarding this Hukm, the attribution of the scholars that it is Haraam for those who acted upon it knowingly, makes it impossible for us to attribute this view of theirs to those who performed it without knowing its ruling to be Haraam.

Also, Tahawi mentioning both the contract and sexual relation together, clearly shows how hollow their claim of those who attribute the Ikhtilaaf of the Ulama only to those who had sexual relations with their Mahram without Nikah. They are trying to take advantage that Nikah in Arabic is used for both the marriage and sexual relation and claimed that, the statements of the scholars with regards to the Hukm of the Hadd punishment of Zina or Tazir shall be performed to those who had Nikah (sexual relations) with his Mahram, is related with those who had sexual relation with them and those who made Nikah (i.e., proceeded contract of Nikah) with them (i.e., Mahram) or others are Kuffar by the Ijmaa. Whereas Tahawi while mentioning the Ikhtilaaf of the scholars concerning this matter mentioned the both sexual relation and the contract and then narrated the Ikhtilaaf whether Hadd punishment of Zina or Tazir shall be applied. Similar to this it was mentioned while we were quoting from Bayhaqi and more similar to this will be quoted soon Inshallah.

Note: Tahawi here mentions only the views of Ahl (People of) Iraq. Other than Imamayn (two Imam i.e., two Imam of the Hanafis Qadi Abu Yusuf and Muhammad ash-Shaybani) those who ruled the one who had married and had sexual relation with his Mahram to be given the Hadd punishment of Zina are Hasan al-Basri, Malik, Shafii, Ahmad and Abu Thawr. Badr ad-Din al-Ayni in his Sharh on Tahawi’s book added these names. (Badr ad-Din al-Ayni, Nuhab’ul Afqar, 15/505)

[Fahm'us Salaf]

As Tahawi mentioned, Abu Hanifa and Sufyan ath-Thawri amongst the Fuqaha of Kufa, found it suitable for such person to be given Tazir. Tahawi first mentioned the Isnaad (chain) of the narration up to these two Imam:

4884 - حَدَّثَنَا سُلَيْمَانُ بْنُ شُعَيْبٍ , عَنْ أَبِيهِ , عَنْ مُحَمَّدٍ , عَنْ أَبِي يُوسُفَ , عَنْ أَبِي حَنِيفَةَ , بِذَلِكَ

4884- Sulayman ibn Shu’ayb narrated to us from his father, who narrated it from Muhammad, who narrated it from Abu Yusuf who narrated it from Abu Hanifa:

4885 - حَدَّثَنَا فَهْدٌ قَالَ: ثنا أَبُو نُعَيْمٍ قَالَ: سَمِعْتُ سُفْيَانَ يَقُولُ فِي رَجُلٍ تَزَوَّجَ ذَاتَ مَحْرَمٍ مِنْهُ فَدَخَلَ بِهَا قَالَ: لَا حَدَّ عَلَيْهِ.

4885- Fahd narrated to us and said: Abu Nu’aym narrated it to us and said: I heard Sufyan stating that Hadd would not be performed to him who married with his Mahram and had sexual relation with her.

Then Tahawi said:

]وَكَانَ مِنَ الْحُجَّةِ عَلَى الَّذِينَ احْتَجُّوا عَلَيْهِمَا بِمَا ذَكَرْنَا أَنَّ فِي تِلْكَ الْآثَارِ أَمَرَ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ بِالْقَتْلِ وَلَيْسَ فِيهَا ذِكْرُ الرَّجْمِ , وَلَا ذِكْرُ إِقَامَةِ الْحَدِّ. وَقَدْ أَجْمَعُوا جَمِيعًا أَنَّ فَاعِلَ ذَلِكَ لَا يَجِبُ عَلَيْهِ قَتْلٌ إِنَّمَا يَجِبُ عَلَيْهِ - فِي قَوْلِ مَنْ يُوجِبُ عَلَيْهِ الْحَدَّ - عَلَيْهِ الرَّجْمُ إِنْ كَانَ مُحْصَنًا. فَلَمَّا لَمْ يَأْمُرِ النَّبِيُّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ الرَّسُولَ بِالرَّجْمِ , وَإِنَّمَا أَمَرَهُ بِالْقَتْلِ ثَبَتَ بِذَلِكَ أَنَّ ذَلِكَ الْقَتْلَ لَيْسَ بِحَدٍّ لِلزِّنَا , وَلَكِنَّهُ لِمَعْنًى خِلَافَ ذَلِكَ. وَهُوَ أَنَّ ذَلِكَ الْمُتَزَوِّجَ , فَعَلَ مَا فَعَلَ مِنْ ذَلِكَ عَلَى الِاسْتِحْلَالِ كَمَا كَانُوا يَفْعَلُونَ فِي الْجَاهِلِيَّةِ فَصَارَ بِذَلِكَ مُرْتَدًّا , فَأَمَرَ رَسُولُ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ أَنْ يُفْعَلَ بِهِ مَا يُفْعَلُ بِالْمُرْتَدِّ. وَهَكَذَا كَانَ أَبُو حَنِيفَةَ وَسُفْيَانُ رَحِمَهُمَا اللهُ , يَقُولَانِ فِي هَذَا الْمُتَزَوِّجِ إِذَا كَانَ أَتَى فِي ذَلِكَ عَلَى الِاسْتِحْلَالِ أَنَّهُ يُقْتَلُ. فَإِذَا كَانَ لَيْسَ فِي هَذَا الْحَدِيثِ مَا يَنْفِي مَا يَقُولُ أَبُو حَنِيفَةَ وَسُفْيَانُ , لَمْ يَكُنْ فِيهِ حُجَّةٌ عَلَيْهِمَا لِأَنَّ مُخَالِفَهُمَا لَيْسَ بِالتَّأْوِيلِ أَوْلَى مِنْهُمَا.

Against those who bring the aforementioned Hujjah (evidences) in opposition to Abu Hanifa and Sufyan ath-Thawri, there is also amongst the Athar (narrations) that Nabi sallallahu alayhi wa sallam to command killing but not mentioning neither the Rajm nor the Hadd punishment.

Altogether accepted that there is no need to command to kill to the doer of such act –according to the view that Hadd punishment is necessary- in the case of Muhsan (married) the Rajm (death to stoning) needs to be applied.

Nabi sallalllahu alayhi wa sallam did not command with the Rajm rather the messenger (that he sent) to kill him, this killing is not Hadd punishment of Zina (fornication) rather the punishment of killing is constant with a reason other than it.

And it is that: He married by doing Istihlaal. As it was done during the Jaahiliyyah (times of ignorance i.e., pre-Islamic period). With it he became Murtad. So Rasulullah sallallahu alayhi wa sallam commanded to be done to him what is done to a Murtad.

Likewise Abu Hanifa and Sufyan (rahimahullahuma) said that the one who married in such, if he does Istihlaal to be killed.

Since there is no Hujjah (evidence) invalidates what Abu Hanifa and Sufyan said (in the Hadith), therefore there is no Hujjah against them in it. It is because there is nothing that indicates the Ta’wil of the opposition is better than theirs (i.e., Ta’wil of Abu Hanifa and Sufyan).

Tahawi is trying to explain here that this Hadith is not in opposition with the view of Abu Hanifa and Sufyan (ath-Thawri) that it was the Tazir punishment. It is because the man in the Hadith did Istihlaal therefore he was killed as a Murtad with the Hadd punishment of a Murtad. Tahawi brought this as a Hujjah against the Jumhur (majority of scholars) who believe that the one who married with his Mahram, should be given the Zina Hadd punishment. He said that, if it was a Hujjah for them then the man would have been applied the Rajm punishment. Pay attention to the statements of these Imams that one who does Istihlaal to be killed. If in the presence of these two Imams, proceeding Nikah was Istihlaal itself, there would be no need to mention the condition of Istihlaal. Whereas they ruled the one who did Istihlaal to be killed, they ruled with Tazir punishment to the one who did the same thing without committing Istihlaal. Therefore according to this Hadith, that man was killed due to making Istihlaal while continuing the custom of the Jaahiliyyah and not merely proceeding with the Nikah.

Tahawi then said:

وَفِي ذَلِكَ الْحَدِيثِ «أَنَّ رَسُولَ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ عَقَدَ لِأَبِي بُرْدَةَ الرَّايَةَ» وَلَمْ تَكُنِ الرَّايَاتُ تُعْقَدُ إِلَّا لِمَنْ أَمَرَ بِالْمُحَارَبَةِ , وَالْمَبْعُوثُ عَلَى إِقَامَةِ حَدِّ الزِّنَا , غَيْرُ مَأْمُورٍ بِالْمُحَارَبَةِ. وَفِي الْحَدِيثِ أَيْضًا أَنَّهُ بَعَثَهُ إِلَى رَجُلٍ تَزَوَّجَ امْرَأَةَ أَبِيهِ وَلَيْسَ فِيهِ أَنَّهُ دَخَلَ بِهَا. فَإِذَا كَانَتْ هَذِهِ الْعُقُوبَةُ وَهِيَ الْقَتْلُ مَقْصُودًا بِهَا إِلَى الْمُتَزَوِّجِ لِتَزَوُّجِهِ دَلَّ ذَلِكَ أَنَّهَا عُقُوبَةٌ وَجَبَتْ بِنَفْسِ الْعَقْدِ لَا بِالدُّخُولِ وَلَا يَكُونُ ذَلِكَ إِلَّا وَالْعَاقِدُ مُسْتَحِلٌّ لِذَلِكَ. فَإِنْ قَالَ قَائِلٌ: فَهُوَ عِنْدَنَا عَلَى أَنَّهُ تَزَوَّجَ وَدَخَلَ بِهَا. قِيلَ لَهُ: وَهُوَ عِنْدَ مُخَالِفِكَ عَلَى أَنَّهُ تَزَوَّجَ وَاسْتَحَلَّ. فَإِنْ قَالَ: لَيْسَ لِلِاسْتِحْلَالِ ذِكْرٌ فِي الْحَدِيثِ. قِيلَ لَهُ: وَلَا لِلدُّخُولِ ذِكْرٌ فِي الْحَدِيثِ فَإِنْ جَازَ أَنْ تَحْمِلَ مَعْنَى الْحَدِيثِ عَلَى دُخُولٍ غَيْرِ مَذْكُورٍ فِي الْحَدِيثِ جَازَ لِخَصْمِكَ أَنْ يَحْمِلَهُ عَلَى اسْتِحْلَالٍ غَيْرِ مَذْكُورٍ فِي الْحَدِيثِ. وَقَدْ رُوِيَ فِي ذَلِكَ حَرْفٌ زَائِدٌ عَلَى مَا فِي الْآثَارِ الْأُوَلِ

Also in the Hadith, Rasulullah sallallahu alayhi wa sallam gave a flag to Abu Burda (radiyallahu anh). Flags would be given only those who were commanded to Muharaba (fight). For the one who had been sent to apply the Zina Hadd punishment would not have been given the command of war.

Again in the Hadith, it is mentioned that a man who had married with his fathers wife and not (mentioned that) he had sexual relation with her.

If the goal for the punishment of killing had been applied due to the marriage then it is a Hujjah that it is a punishment and it is not due to the sexual relation but the contract (of Nikah) itself. This Hukm (ruling) is only (possible) when he made Istihlaal.

If one says that; according to us it is related with his marriage and having sexual relation with her, then it is said (to him):

However according to those who are in opposition to you, it is related with the marriage and Istihlaal.

If he says; Istihlaal is not mentioned in the Hadith. then it is said (to him):

Sexual relation was not mentioned in the Hadith as well. If it is Jaiz (permissible) for you to attribute the Hadith to sexual relation which was not mentioned in the Hadith then it is Jaiz for your opponent to attribute the Hadith to Istihlaal which was not mentioned in the Hadith. Additional wording was narrated over the Athar which came before.

Some people who claim Haraam Marriages to be Kufr try to rely upon this statement of Imam Tahawi. However there is nothing in this statement for them to rely on. It is because Imam Tahawi said the following right after he said the punishment of killing is due to the contract and not for the Zina.

وَلَا يَكُونُ ذَلِكَ إِلَّا وَالْعَاقِدُ مُسْتَحِلٌّ لِذَلِكَ

This Hukm (ruling) is only (possible) when he made Istihlaal with it.

So it is stated clearly that Haraam Marriage being Kufr is only possible when Istihlaal occurs. If the contract of Nikah was making Istihlaal itself then there is no need to mention it here. This was pointed out before.

Attention should be paid to his point that Istihlaal is not clear in this Hadith. Tahawi although attributed it to Istihlaal, accepts that it is a comment which was extracted from the Hadith even more he is silencing his opponents with it. What he was saying was: There is no clear Hujjah in this Hadith for none of us. Wallahu A’lam (Allah knows the best)!..

[Fahm'us Salaf]

Tahawi then narrated the additional wording in the Hadith that indicates the man who was killed was a Murtad which he was mentioning above and it is:

4886 - حَدَّثَنَا حُسَيْنُ بْنُ نَصْرٍ , قَالَ: ثنا يُوسُفُ بْنُ عَدِيٍّ , قَالَ: ثنا عَبْدُ اللهِ بْنُ عَمْرٍو , عَنْ زَيْدِ بْنِ أَبِي أُنَيْسَةَ , عَنْ جَابِرٍ الْجُعْفِيِّ , " عَنْ يَزِيدَ بْنِ الْبَرَاءِ , عَنْ أَبِيهِ , قَالَ: لَقِيَ خَالَهُ وَمَعَهُ رَايَةٌ فَقُلْتُ لَهُ: إِلَى أَيْنَ تَذْهَبُ؟ فَقَالَ: بَعَثَنِي رَسُولُ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ إِلَى رَجُلٍ نَكَحَ امْرَأَةَ أَبِيهِ أَنْ أَقْتُلَهُ وَآخُذَ مَالَهُ "

4886- It was narrated to us from (...) from Yazid ibn Bara from his father that he said: I met my uncle who was carrying a standard. I asked him: Where are you going? He said: Rasulullah sallallahu alayhi wa sallam has sent me to a man who has married his father's wife. He has ordered me to kill him and take his property.

Again with similar wording which was narrated from other than Bara (radiyallahu anh):

4887 - حَدَّثَنَا مُحَمَّدُ بْنُ عَلِيِّ بْنِ دَاوُدَ , وَفَهْدٌ وَمُحَمَّدُ بْنُ الْوَرْدِ قَالُوا: حَدَّثَنَا يُوسُفُ بْنُ مُنَازِلٍ الْكُوفِيُّ قَالَ: ثنا عَبْدُ اللهِ بْنُ إِدْرِيسَ عَنْ خَالِدِ بْنِ أَبِي كَرِيمَةَعَنْ مُعَاوِيَةَ بْنِ قُرَّةَ عَنْ أَبِيهِ «أَنَّ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ بَعَثَ جَدَّهُ مُعَاوِيَةَ إِلَى رَجُلٍ عَرَّسَ بِامْرَأَةِ أَبِيهِ أَنْ يَضْرِبَ عُنُقَهُ وَيُخَمِّسَ مَالَهُ»

4887- (...) According to what Mu’awiyyah ibn Qurrat narrated from his father that Nabi sallallahu alayhi wa sallam sent me to a man who had sexual relation (wedding) his father's wife, to strike his neck (execute him) and to allocate one fifth of his wealth.

Imam Tahawi gives the explanation of these Hadith in the following manner:

فَلَمَّا أَمَرَ رَسُولُ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فِي هَذَيْنِ الْحَدِيثَيْنِ بِأَخْذِ مَالِ الْمُتَزَوِّجِ وَتَخْمِيسِهِ دَلَّ ذَلِكَ أَنَّ الْمُتَزَوِّجَ كَانَ بِتَزَوُّجِهِ مُرْتَدًّا مُحَارِبًا فَوَجَبَ أَنْ يُقْتَلَ لِرِدَّتِهِ , وَكَانَ مَالُهُ كَمَالِ الْحَرْبِيِّينَ لِأَنَّ الْمُرْتَدَّ الَّذِي لَمْ يُحَارِبْ كُلٌّ قَدْ أَجْمَعَ فِي أَخْذِ مَالِهِ , عَلَى خِلَافِ التَّخْمِيسِ. فَقَالَ قَوْمٌ وَهُمْ أَبُو حَنِيفَةَ وَأَصْحَابُهُ رَحِمَهُمُ اللهُ وَمَنْ قَالَ بِقَوْلِهِمْ مَالُهُ لِوَرَثَتِهِ مِنَ الْمُسْلِمِينَ. وَقَالَ مُخَالِفُوهُمْ: مَالُهُ كُلٌّ فَيْءٌ وَلَا تَخْمِيسَ فِيهِ لِأَنَّهُ لَمْ يُوجِفْ عَلَيْهِ بِخَيْلٍ وَلَا رِكَابٍ. فَفِي تَخْمِيسِ النَّبِيِّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ مَالَ الْمُتَزَوِّجِ - الَّذِي ذَكَرْنَا - دَلِيلٌ عَلَى أَنَّهُ قَدْ كَانَتْ مِنْهُ الرِّدَّةُ وَالْمُحَارَبَةُ جَمِيعًا. فَانْتَفَى بِمَا ذَكَرْنَا أَنْ يَكُونَ عَلَى أَبِي حَنِيفَةَ وَسُفْيَانَ رَحِمَهُمَا اللهُ فِي ذَلِكَ الْحَدِيثِ حُجَّةٌ.

Ordering of Rasulullah sallallahu alayhi wa sallam in these two Hadith that the wealth (in the other narration; or) one fifth of his wealth of the man who had married to be taken is proof that he was Murtad and Muharib (wages war against the society) with this marriage of his, to be killed due to being a Murtad, his wealth was taken in consideration as the wealth of Harbi (warlike). Since everyone accept it with Ijmaa that the wealth of Murtad who is not Muharib would not be taken from him on the opposition on the one fifth (of his wealth to be taken).

Some –they are Abu Hanifa, his Ashab (companions) and those who accept their views rahimahumullah- said that his wealth is belongs to his inheritors amongst the Muslimin.

Those who opposed with them said: His wealth is like Fay and one fifth (of his wealth) can not be taken. It is because no horse or camel rode in order to take their wealth.

Tahmis (allocating one fifth) of his wealth of the man who had married which we have been mentioning about by Nabi sallallahu alayhi wa sallam is a Dalil (evidence) both for his Riddat (apostasy) and Muharib.

These explanations that we have been mentioning that there will be no Hujjah (left) in this Hadith against Abu Hanifa and Sufyan rahimahumallah.

So Tahawi stated clearly that; the Jumhur who said to the one who had married with his Mahram, the Hadd punishment of Zina to be applied can not take this Hadith as evidence, this person who is mentioned in the Hadith was killed due to his Irtidad and his wealth had been taken same as the wealth of Murtad is taken and not because of his marriage with his Mahram. Then he said the following for the sake of proving that for the doer of Zina by a Fasid (flawed) Nikah, Tazir punishment would be applied to him and not Hadd punishment as these two Fuqaha of Kufa (i.e., Abu Hanifa and Sufyan) were advocating.

فَإِنْ قَالَ قَائِلٌ: فَقَدْ رَأَيْنَا ذَلِكَ النِّكَاحَ نِكَاحًا لَا يَثْبُتُ فَكَانَ يَنْبَغِي إِذَا لَمْ يَثْبُتْ أَنْ يَكُونَ فِي حُكْمِ مَا لَمْ يَنْعَقِدْ فَيَكُونُ الْوَاطِئُ عَلَيْهِ كَالْوَاطِئِ لَا عَلَى نِكَاحٍ فَيُحَدُّ. [ص:151] قِيلَ لَهُ: إِنْ كَانَ ذَلِكَ كَذَلِكَ , فَلِمَ كَانَ سُؤَالُكَ إِيَّانَا مَا ذَكَرْت ذِكْرَ التَّزْوِيجِ كَانَ يَنْبَغِي أَنْ تَقُولَ رَجُلٌ زَنَى بِذَاتِ مَحْرَمٍ مِنْهُ. فَإِنْ قُلْت ذَلِكَ كَانَ جَوَابُنَا لَكَ أَنْ نَقُولَ: عَلَيْهِ الْحَدُّ وَإِنْ أَطْلَقْت اسْمَ التَّزَوُّجِ , وَسَمَّيْت ذَلِكَ النِّكَاحَ نِكَاحًا وَإِنْ لَمْ يَكُنْ ثَابِتًا فَلَا حَدَّ عَلَى وَاطِئٍ عَلَى نِكَاحٍ جَائِزٍ وَلَا فَاسِدٍ.

If one says: We see that this is a Nikah that is not a constant Nikah. Since it is not constant, he should be on the Hukm that the contract was never made therefore the one who had sexual relation in this case should have been taken in consideration as the one who had sexual relation without Nikah and the Hadd punishment would have applied to him then it is said (to him):

If it is such then why do you ask in this manner? In this case you should have mentioned the marriage and you should have said: A man did Zina with his Mahram.

If you say that then our answer to you is: Hadd punishment should have been applied to him. If you use the term marriage and name it as Nikah then even if it was not constant, there is no Hadd punishment for the one who had sexual relation by the way of Nikah whether it (i.e., Nikah) is Jaiz or Fasid.

As Badr ad-Din al-Ayni explained in the Sharh (explanation) of this statement, those in the opposition to the Abu Hanifah in this issue find the Hadd punishment of Zina suitable for the one who had Haraam marriages like the marriage with a Mahram due to eliminating their Nikah because of their Nikah being a Fasid Nikah. Ayni after stating that if they had sexual relation without a Nikah -even if it was Fasid Nikah- they would have been applied the Hadd punishment of Zina said: If you say: This person had married with his Mahram and had sexual relation. Then we say: Hadd punishment can not be established due to doubt. Since, there is no Hadd punishment for it, whether it is Halaal Nikah or Haraam Nikah. (Ayni, Nuhab’ul Afkar, 15/512)

Both Tahawi and Ayni defend the renowned principle; if there is Shibhi Nikah (doubt concerning Nikah) then there is no Hadd punishment of Zina. As they stated clearly that if Nikah contract whether valid or Fasid, had been done before sexual relation had been proceeded then there is no Hadd punishment of Zina to them. According to the Hanafis whether permanent Haraam marriages like marrying with the Mahram that one is never allowed to marry or temporary Haraam marriage like marrying with the Mushrikin before they became Muslim, Hadd punishment of Zina will be lifted from him. Since Rasulullah (sallallahu alayhi wa sallam) said: Hudud (pl., of Hadd) should be suspended in all cases of doubt. So these scholars do not rule with the Hukm of the Hadd punishment of Zina in this case let alone rule them as Murtad make Takfir of them and apply the Hadd punishment of Murtad to those who proceeded contract of Nikah for a Haraam marriage. Scholars other than them, due to considering the contract to be invalid rule them with the Hadd punishment of Zina.

None of the Ulama amongst the Salaf and Khalaf rule that proceeding a Nikah contract for Haraam marriages to be Kufr due to it being legitimizing a Haraam and did not make Takfir of the doers of such act. Every Fiqh book has a chapter for Haraam marriages and none of them contains what our opponents claim. Our opponents may fail to bring any evidence from the books of Fiqh with regards to their claim that, Haraam marriages whether it is with the Mushrikin or with the Mahram, at the same time are Kufr. This claim belongs to those Juhala of our time which rule with it without thinking and without relying on any evidence. Now they do not even know how to defend it, but insisting on it and it is nothing but delirium. Books of the Ummah are available for everyone. Those who stand for the opposite are obligated to bring evidences from the sources.

wa'l Hamdulillahi Rabb'il Alamin!..

[Fahm'us Salaf]

Tahawi lastly mentioned the Fatwa (legal verdict) of Umar ibn al-Khattab (radiyallahu anh) in order to prove that the Hadd punishment of Zina can not be applied to the one who committed the Haraam marriage.

وَقَدْ رَأَيْنَا عُمَرَ بْنَ الْخَطَّابِ رَضِيَ اللهُ عَنْهُ , قَضَى فِي الْمُتَزَوِّجِ فِي الْعِدَّةِ الَّتِي لَا يَثْبُتُ فِيهَا نِكَاحُ الْوَاطِئِ عَلَى ذَلِكَ مَا يَدُلُّ عَلَى خِلَافِ مَذْهَبِكَ. وَذَلِكَ أَنَّ

We see that Umar ibn al-Khattab radiyallahu anh ruled for the one who married during the Iddah (waiting period for women to get re-married) with something that is a Dalil against your Madhhab (i.e., view). Whereas for the one who had sexual relation during Iddah, Nikah would not be established. And this is in (the following) narration:

4888 - إِبْرَاهِيمَ بْنَ مَرْزُوقٍ حَدَّثَنَا قَالَ: ثنا عَبْدُ اللهِ بْنُ مَسْلَمَةَ بْنِ قَعْنَبٍ قَالَ: ثنا مَالِكٌ عَنِ ابْنِ شِهَابٍ عَنْ سَعِيدِ بْنِ الْمُسَيِّبِ وَسُلَيْمَانَ بْنِ يَسَارٍ أَنَّ طُلَيْحَةَ نَكَحَتْ فِي عِدَّتِهَا فَأُتِيَ بِهَا عُمَرُ بْنُ الْخَطَّابِ فَضَرَبَهَا ضَرَبَاتٍ بِالْمِخْفَقَةِ وَضَرَبَ زَوْجَهَا وَفَرَّقَ بَيْنَهُمَا وَقَالَ أَيُّمَا امْرَأَةٍ نَكَحَتْ فِي عِدَّتِهَا فُرِّقَ بَيْنَهَا وَبَيْنَ زَوْجِهَا الَّذِي نَكَحَتْ ثُمَّ اعْتَدَّتْ بَقِيَّةَ عِدَّتِهَا مِنَ الْأَوَّلِ , ثُمَّ اعْتَدَّتْ مِنَ الْآخَرِ وَإِنْ كَانَ دَخَلَ بِهَا الْآخَرُ ثُمَّ لَمْ يَنْكِحْهَا أَبَدًا , وَإِنْ لَمْ يَكُنْ دَخَلَ بِهَا اعْتَدَّتْ مِنَ الْأَوَّلِ وَكَانَ الْآخَرُ خَاطِبًا مِنَ الْخُطَّابِ

4888- Ibrahim ibn Marzuqi (...) from Sa’id ibn al-Musayyab and Sulayman ibn Yesar that Tulayha (al-Asadiya) married during her Iddah. He came with her to Umar ibn al-Khattab (radiyallahu anh). As he beat her several times with a stick, he beat her husband as well and separated them and said: If a women marries during her Iddah period would be separated from her husband. Then she will wait for her Iddah from her first husband even if the other (latter) had sexual relation with her. Then they are never to be reunited. If she had not had sexual relation with the latter husband then she would wait for Iddah from the first husband, the latter can be among those who can proposal to her as a suitor. (Malik, Muwatta, #1115)

4889 - حَدَّثَنَا يُونُسُ , قَالَ أَخْبَرَنَا ابْنُ وَهْبٍ , قَالَ: أَخْبَرَنِي يُونُسُ , عَنِ ابْنِ شِهَابٍ , فَذَكَرَ بِإِسْنَادِهِ مِثْلَهُ

4889- Yunus from Ibn Shihab mentioned the it (the Hadith) with the same Sanad.

4890 - حَدَّثَنَا إِبْرَاهِيمُ بْنُ مَرْزُوقٍ , قَالَ: ثنا وَهْبُ بْنُ جَرِيرٍ , قَالَ: ثنا هِشَامُ بْنُ أَبِي عُبَيْدِ اللهِ , عَنْ قَتَادَةَ , عَنْ سَعِيدِ بْنِ الْمُسَيِّبِ , أَنَّ رَجُلًا , تَزَوَّجَ امْرَأَةً فِي عِدَّتِهَا , فَرُفِعَ إِلَى عُمَرَ فَضَرَبَهَا دُونَ الْحَدِّ وَجَعَلَ لَهَا الصَّدَاقَ وَفَرَّقَ بَيْنَهُمَا وَقَالَ لَا يَجْتَمِعَانِ أَبَدًا. قَالَ: وَقَالَ عَلِيٌّ رَضِيَ اللهُ عَنْهُ إِنْ تَابَا وَأَصْلَحَا جَعَلْتُهُمَا مَعَ الْخُطَّابِ.

4890- From Sa’id ibn Musayyab that one man married with a woman who is on her Iddah. This was taken to Umar (radiyallahu anh), he beat her lesser than Hadd and decreed to be given Mahr (dowry) to her. Separated her and her husband and said that they are never to be reunited.

(Sa’id ibn al-Musayyab) said: Ali said: If both of them make Tawbah (repentance) and better (their states), I would put both of them amongst the suitors. (Ibn Abi Shaybah, al-Musannaf, #28553)

Badr ad-Din al-Ayni said that all of these three narrations were narrated as Sahih (sound) and stated that the claim of Ibn Hazm that Sa’id ibn al-Musayyab had not seen Umar ibn al-Khattab (radiyallah anh) therefore it is Munqati (broken) is not correct. (al-Ayni, Nuhab’ul Afkar, 15/514)

Tahawi after narrating these said:

أَفَلَا تَرَى أَنَّ عُمَرَ رَضِيَ اللهُ عَنْهُ قَدْ ضَرَبَ الْمَرْأَةَ وَالزَّوْجَ الْمُتَزَوِّجَ فِي الْعِدَّةِ بِالْمِخْفَقَةِ فَاسْتَحَالَ أَنْ يَضْرِبَهُمَا وَهُمَا جَاهِلَانِ بِتَحْرِيمِ مَا فَعَلَا لِأَنَّهُ كَانَ أَعْرَفَ بِاللهِ عَزَّ وَجَلَّ مِنْ أَنْ يُعَاقِبَ مَنْ لَمْ تَقُمْ عَلَيْهِ الْحُجَّةُ. فَلَمَّا ضَرَبَهُمَا دَلَّ ذَلِكَ أَنَّ الْحُجَّةَ قَدْ كَانَتْ قَامَتْ عَلَيْهِمَا بِالتَّحْرِيمِ قَبْلَ أَنْ يَفْعَلَا ثُمَّ هُوَ رَضِيَ اللهُ عَنْهُ لَمْ يُقِمْ عَلَيْهِمَا الْحَدَّ وَقَدْ حَضَرَهُ أَصْحَابُ رَسُولِ اللهِ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ فَتَابَعُوهُ عَلَى ذَلِكَ وَلَمْ يُخَالِفُوهُ فِيهِ. فَهَذَا دَلِيلٌ صَحِيحٌ أَنَّ عَقْدَ النِّكَاحِ إِذَا كَانَ وَإِنْ كَانَ لَا يَثْبُتُ , وَجَبَ لَهُ حُكْمُ النِّكَاحِ فِي وُجُوبِ الْمَهْرِ بِالدُّخُولِ الَّذِي يَكُونُ بَعْدَهُ وَفِي الْعِدَّةِ مِنْهُ وَفِي ثُبُوتِ النَّسَبِ وَمَا كَانَ يُوجِبُ مَا ذَكَرْنَا مِنْ ذَلِكَ فَيَسْتَحِيلُ أَنْ يَجِبَ فِيهِ حَدٌّ لِأَنَّ الَّذِي يُوجِبُ الْحَدَّ هُوَ الزِّنَا , وَالزِّنَا لَا يُوجِبُ ثُبُوتَ نَسَبٍ وَلَا مَهْرٍ وَلَا عِدَّةٍ.

We see that Umar radiyallahu anh beat both the man and woman who married during her Iddah with his whip. It is impossible for him to beat them while they are Jahil (ignorant) of being it Haraam. It is because Umar was an Arif (person that knows) Allah Azza wa Jalla (Mighty and Majestic is He) so that he would not punish anyone without Iqamatu’l (establishing the) Hujjah (proof).

His beating them show that Iqamatu’l Hujjah had been established to them concerning it being Haraam before they committed it. Then he radiyallahu anh had not performed Hadd punishment to them and performed it in the presence of the Ashab (radiyallahu anhu ajmain) of Rasulullah sallallahu alayhi wa sallam. They submitted to him in it and they did not oppose with him.
 
So this is a Sahih (sound) Dalil that; if the contract -even if it was an invalid contract- of Nikah was proceeded after the sexual relation the Mahr (dowry) is obligated, because of (the sexual relation) that the Iddah is obligated, rulings for the Subutu Nasab (certitude of line of descent) are valid with the contract. Hadd punishment would be impossible when there is a contract which obligated all of these. It is because Zina itself obligated the Hadd punishment while Zina does not obligate neither Nasab (ancestry), Mahr nor Iddah.

So Umar ibn al-Khattab (radiyallahu anh), did not perform anything other than Tazir and did not make Takfir of them and moreover did not even perform Hadd punishment of Zina rather he performed rulings of Mahr, Iddah and Subutu Nasab as the Nikah is valid while taking in consideration their contract invalidated even though those who married with in the Iddah period therefore had a Haraam contract. Whereas according to the opponents he should have executed both the wife and her husband as Murtad due to legitimizing Haraam. As Tahawi mentioned this couple knew beforehand that marriage while in the period of Iddah is Haraam since it is an issue that is constant with the clear Nass. Allah (Ta’ala) stated:

وَالْمُطَلَّقَاتُ يَتَرَبَّصْنَ بِأَنفُسِهِنَّ ثَلاَثَةَ قُرُوَءٍ

Divorced women shall wait concerning themselves for three monthly periods. (al-Baqarah 2/228);

يَا أَيُّهَا النَّبِيُّ إِذَا طَلَّقْتُمُ النِّسَاء فَطَلِّقُوهُنَّ لِعِدَّتِهِنَّ وَأَحْصُوا الْعِدَّةَ وَاتَّقُوا اللَّهَ رَبَّكُمْ

O Prophet! When ye do divorce women, divorce them at their prescribed periods, and count (accurately), their prescribed periods: and fear Allah your Lord. (at-Talaq 65/1)

There are many more Nass concerning it. Even though these people who were mentioned in the Hadith, act upon in the opposition of these Nass and proceeded a contract of Nikah which is in opposition to the Nass nobody amongst the Ulama spoke about making Takfir of them.

Badr ad-Din al-Ayni, brought this implementation of Umar ibn al-Khattab (radiyallahu anh) for the Hanfi view that the Hadd punishment of Zina can not be applied to the contracts that carry doubt in Nikah.

Imam Tahawi completed this matter by stating:

فَإِنْ قَالَ قَائِلٌ: إِنَّ هَذَا الَّذِي ذَكَرْت مِنْ وَطْءِ ذَاتِ الْمَحْرَمِ مِنْهُ عَلَى النِّكَاحِ الَّذِي وَصَفْتَهُ وَإِنْ لَمْ يَكُنْ زِنًا فَهُوَ أَغْلَظُ مِنَ الزِّنَا فَأَحْرَى أَنْ يَجِبَ فِيهِ مَا يَجِبُ فِي الزِّنَا. قِيلَ لَهُ: قَدْ أَخْرَجْتَهُ بِقَوْلِكَ هَذَا مِنْ أَنْ يَكُونَ زِنًا وَزَعَمْت أَنَّهُ أَغْلَظُ مِنَ الزِّنَا وَلَيْسَ مَا كَانَ مِثْلَ الزِّنَا أَوْ مَا كَانَ أَعْظَمَ مِنَ الزِّنَا مِنَ الْأَشْيَاءِ الْمُحَرَّمَةِ يَجِبُ فِي انْتِهَاكِهَا مِنَ الْعُقُوبَاتِ مَا يَجِبُ فِي الزِّنَا لِأَنَّ الْعُقُوبَاتِ إِنَّمَا تُؤْخَذُ مِنْ جِهَةِ التَّوْقِيفِ لَا مِنْ جِهَةِ الْقِيَاسِ. أَلَا تَرَى أَنَّ اللهَ عَزَّ وَجَلَّ قَدْ حَرَّمَ الْمَيْتَةَ وَالدَّمَ وَلَحْمَ الْخِنْزِيرِ كَمَا حَرَّمَ الْخَمْرَ , وَقَدْ جَعَلَ عَلَى شَارِبِ الْخَمْرِ حَدًّا لَمْ يُجْعَلْ مِثْلُهُ عَلَى أَكْلِ لَحْمِ الْخِنْزِيرِ , وَلَا عَلَى أَكْلِ لَحْمِ الْمَيْتَةِ وَإِنْ كَانَ تَحْرِيمُ مَا أَتَى بِهِ كَتَحْرِيمِ مَا أَتَى ذَلِكَ. وَكَذَلِكَ قَذْفُ الْمُحْصَنَةِ جَعَلَ اللهُ فِيهِ جَلْدَ ثَمَانِينَ وَسُقُوطَ شَهَادَةِ الْقَاذِفِ وَإِلْزَامَ اسْمِ الْفِسْقِ. وَلَمْ يَجْعَلْ ذَلِكَ فِيمَنْ رَمَى رَجُلًا بِالْكُفْرِ , وَالْكُفْرُ فِي نَفْسِهِ أَعْظَمُ وَأَغْلَظُ مِنَ الْقَذْفِ. فَكَانَتِ الْعُقُوبَاتُ قَدْ جُعِلَتْ فِي أَشْيَاءَ خَاصَّةٍ , وَلَمْ يُجْعَلْ فِي أَمْثَالِهَا وَلَا فِي أَشْيَاءَ هِيَ أَعْظَمُ مِنْهَا وَأَغْلَظُ. فَكَذَلِكَ مَا جَعَلَ اللهُ تَعَالَى مِنَ الْحَدِّ فِي الزِّنَا لَا يَجِبُ بِهِ أَنْ يَكُونَ وَاجِبًا فِيمَا هُوَ أَغْلَظُ مِنَ الزِّنَا. فَهَذَا الَّذِي ذَكَرْنَا فِي هَذَا الْبَابِ هُوَ النَّظَرُ , وَهُوَ قَوْلُ أَبِي حَنِيفَةَ وَسُفْيَانَ رَحِمَهُمَا اللهُ تَعَالَى

If it is said; the one who you mentioned by relying on a Nikah that you described and had sexual relation with his Mahram had not taken in consideration that he committed Zina but whatever he had done is worse (greater) than Zina then the Hadd punishment of Zina more adequately fits him. It is said (to him):

You –with your statements- take this matter out of Zina. You claim that this matter is worse (greater) than Zina whereas Zina or a Haraam that is worse (greater) than Zina, the Hadd punishment of Zina does not necessarily come into sight for it. Since punishments can be learned by Tawqif (limited by Shari’ah) and not by Qiyas (analogy).

Likewise we see that as Allah Azza wa Jall made Hamr (alcohol) Haraam, He made Maytah (carcass), blood and pork Haraam as well. (Allah) prescribed Hadd for drinking alcohol but even though they are the same in being Haraam, (Allah) had not prescribed Hadd for the one who eats pork or Maytah.

Likewise, Qazf (slander of fornication) for the Muhsan (chaste) women Allah (Ta’ala) prescribed eighty lashes and also the person who slanders, their Shahadah (witnessing) not to be accepted and called as Fasiq (corrupt).

However such punishment was not prescribed (by Allah) for the one who slanders someone to be a Kafir. Whereas in the essence the slander of Kufr is greater and worse than the Qazf (slander of Zina).

For this reason punishments even though they had been prescribed for specific matters and not prescribed neither for similar of it nor matters that are greater or worse than them.

Likewise what Allah Ta’ala prescribed for the Hadd punishment of Zina is not obligated for matters that are greater than Zina.

So, these explanations in this chapter are the correct view itself and also the view of Abu Hanifa and Sufyan rahimahumullah ta’ala.

As al-Ayni pointed out that some people objected the Fuqaha of Kufa, for they ruled with Tazir which is lesser than the Hadd punishment of Zina while claiming marriage with Mahram and having sexual relation with her and violate their rights is a crime worse than Zina even more it necessitates worse punishment than Zina. Hanafis answered saying that Hadd punishment were prescribed by Shari’ah and they are Tawqifi meaning fixed ruling bounded to the Nass so they can not be determined by Qiyas (analogy).

"Tawqif is the principle in relation to acts of worship and Hadd punishments", that is to say, nothing can be legislated in this regards except what Allah (Ta’ala) Himself has legislated. To do otherwise is to incur the risk of being included in the Ayaat (verses):

ْ لَهُمْ شُرَكَاء شَرَعُوا لَهُم مِّنَ الدِّينِ مَا لَمْ يَأْذَن بِهِ اللَّهُ

"Do they have partners (with Allah) who have prescribed for them in religion that concerning which Allah has given no permission?" (ash-Shura 42/21);

قُلْ أَرَأَيْتُم مَّا أَنزَلَ اللّهُ لَكُم مِّن رِّزْقٍ فَجَعَلْتُم مِّنْهُ حَرَاماً وَحَلاَلاً

"Say: Do you see what Allah has sent down to you for your sustenance? Yet you have made some part of it Halaal and some part Haraam." (Yunus 10/59);

وَلاَ تَقُولُواْ لِمَا تَصِفُ أَلْسِنَتُكُمُ الْكَذِبَ هَـذَا حَلاَلٌ وَهَـذَا حَرَامٌ لِّتَفْتَرُواْ عَلَى اللّهِ الْكَذِبَ

and, for what your tongues describe, do not utter the lie, (saying) this is lawful and this is unlawful, in order to forge a lie against Allah. (an-Nahl 16/116)

We need to express that we are not discussing Fiqh of Haraam marriages and doers of Haraam marriages here. We also are not discussing the variety of the views from the scholars and to find out which one is Sahih and which one is not or the preferred one to the other, which we have no right to do so. In such matters we submit to the Fuqaha of the Hanbali Madhhab, they are our Mufti (verdict giver) and Fatawa (verdict) we narrate from. We do not narrate everything here to be the correct Ijtihaad which we accept. Our aim here is to shed light on the statements of the scholars concerning this matter and criticize the Baatil claim that committing Haraam marriages is Kufr under the light of narrations from the Ulama.

We invite everyone –although not related to this matter- to the general principle that Tahawi mentioned regarding Hadd punishments by Tawqif meaning Nass and not with Qiyas. Actually this general principle is valid for all the matters of Shari’ah including the greatest punishment in Shari’ah that is the Ahqaam of Murtad and the Ahqaam of Iman and Kufr. Ali ibn Abi Talib (radiyallahu anh) said the following: If the Din was bounded by Ra’y (view), we would do Mash (wiping over) under the Khuffs (leather socks) and not on top of them. Whereas today most of the people while forgetting that Din is Tawqifi therefore forget that limitations are prescribed by Allah (Ta’ala) and His Rasul (sallallahu alayhi wa sallam), especially with regards to matters of Takfir state views of Ifrat (taking it to the extreme) and Tafrit (neglecting its true meaning). Some among them call everything they do not like to be Kufr while others refrain from giving the Hukm Kufr to things that are clearly Kufr. As Qadi Iyaad in the last part of his renowned book ash-Shifa said, the rulings of Iman and Kufr are taken from Allah (Ta’ala) and His Rasul (sallallahu alayhi wa sallam); barren evidences or Fasid Qiyas are not valid in this matter. Wallahu A’lam!..

Quotes from Tahawi and Badr ad-Din al-Ayni with regards to the topic of Haraam marriages has ended here. Walhamdulillahi rabbil alamin.

Abu Ja’far at-Tahawi, Sharhu Ma’an’il Athar, 3/148-152; Badr ad-Din al-Ayni, Nuhab’ul Afkar, 15/501-517