24-Surah An-Noor ( The Light ) 9
            
    And the fifth [oath will be] that the wrath of Allah be upon her if he was of the truthful.
    وَالْخَامِسَةَ أَنَّ غَضَبَ اللَّهِ عَلَيْهَا إِن كَانَ مِنَ الصَّادِقِينَ


    Quran's Tafhim ( explanation)

    *7) These verses were sent down some time after the preceding verses. The Law of Qazf prescribed the punishment for the person who accused the other man or woman of zina, and did not produce witnesses to prove his charge, but the question naturally arose, what should a man do if he fords his own wife involved in zina? If he kills her, he will be guilty of murder and punishable; if he goes to get witnesses, the offender might escape; if he tries to ignore the matter, he cannot do so for long. He can, of course, divorce the woman, but in this case there will be no moral or physical punishment either for the woman or her seducer; and if the illicit intercourse results in pregnancy, he will have to suffer the burden of bringing up another person's child. Initially this question was raised by Hadrat Sa`d bin `Ubadah as an hypothetical case, who said that if he happened to see such a thing in his own house, he would not go in search of witnesses, but would settle the matter there and then with the sword. (Bukhari, Muslim). But soon afterwards actual cases were brought before the Holy Prophet by the husbands who were eyewitnesses of this thing. According to traditions related by `Abdullah bin Mas`ud and Ibn `Umar, an Ansar Muslim (probably `Uwaimir `Ajlani) came to the Holy Prophet and said, "O Messenger of Allah, if a person finds another man with his wife, and utters an accusation, you will enforce the prescribed punishment of qazf On him; if he commits murder, you will have him killed; if he keeps quiet, he will remain involved in anguish; then, what should he do?" At this the Holy Prophet prayed, "O AIIah, give a solution of this problem." (Muslim, Bukhari, Abu Da'ud, Ahmad, Nasa`i). Ibn 'Abbas has reported that Hilal bin Umayyah presented the case of his wife whom he had himself witnessed involved in the act of sin. The Holy Prophet said, "Bring your proof, otherwise you will have the prescribed punishment of qazf inflicted on you." At this a panic spread among the Companions, and Hilal said, "I swear by Allah Who has sent you as a Prophet that I am speaking the truth: I have seen it with my eyes and heard it with my ears: I am sure Allah will send down a Command, which will protect my back (from the punishment). So, this verse was revealed." (Bukhari, Ahmad, Abu Da'ud). The legal procedure which has been laid down in this verse, is termed as the Law of Li `an.
    The details of the cases which the Holy Prophet judged in accordance with the Law of Li'an are found in the books of Hadith and these form the source and basis of this law.
    According to the details of Hilai bin Umayyah's case as reported in sibah Sitta, Musnad Ahmad and Tafsir Ibn Jarir, on the authority of Ibn `Abbas and Anas bin Malik, both Hilai and his wife were presented before the Holy Prophet, who first of all apprised them of the Divine Law, and then said: "You should note it well that the punishment of the Hereafter is much severer than the punishment of this world." Hilai submitted that his charge was absolutely correct. The woman denied it. The Holy Prophet then said: "Let us proceed according to the Law of Li'an." So, Hilal stood up first and swore oaths according to the Qur'anic Command. The Holy Prophet went on reminding them again and again: "Allah knows that one of you is certainly a liar: then, will one of you repent ?" Before Hilal swore for the fifth time, the people who were present there, said to him, "Fear God: the punishment of the world is lighter than of the Hereafter. The fifth oath will make the punishment obligatory on you. " But Hilal said that God Who had protected his back (from punishment) in this world, will also spare him in the Hereafter. After this he swore the fifth oath, too. Then the woman began to swear oaths. Before she swore the fifth oath, she was also stopped and counselled, "Fear God: the worldly punishment is easier to bear than the punishment of the Hereafter. This last oath will make the Divine punishment obligatory on you." Hearing this the woman hesitated a little. The people thought that she was going to make the confession. But instead of that she said: "I do not want to put my clan to disgrace for ever," and swore for the fifth time, too. At this the Holy Prophet ordered separation between them and ruled that her child after birth would be attributed to her and not to the man; that nobody after that would blame her or her child; that anybody who accused either of them would incur the punishment of qazf and that she had no right left to claim maintenance, etc. from Hilal, during her Legal waiting period, because she was being separated neither on account of divorce nor due to the husband's death. Then the Holy Prophet asked the people to see whether the child on birth took after Hilai or the man who was being accused in connection with the woman. After delivery when it was seen that the child took . after the other man, the Holy Prophet said: `If there had been no swearing of the oaths (or if Allah's Book had not settled the matter before this), I would have dealt with this woman most severely."
    The details of the case of `Uwaimir `Ajlani have been cited in Bukhari, Muslim, Abu Da'ud, Nasa'i, Ibn Majah and Musnad Ahmad, on the authority of Sahl bin Sa'd Sa'idi and Ibn `Umar (may Allah be pleased with them both). According to these, 'Uwaimir and his wife were both summoned to the Prophet's Mosque. Before proceeding against them in accordance with the Law of Li an, the Holy Prophet warned them thrice, saying: "Allah knows full well that one of you is a liar: then, will one of you repent ?" When neither repented, they were told to exercise Li'an. After that `Uwaimir said, "O Messenger of Allah, now if I keep this woman, I would be a liar" and then he divorced her thrice there and then even without the Holy Prophet's permission to do so. According to Sahl bin Sa`d, the Holy Prophet enforced the divorce to separate them, and said, "There shall be separation between the husband and the wife if they exercise Li'an. 'This became established as a Sunnah that the couple who swore against each other would separate never to marry again. Ibn `Umar only says this that the Holy Prophet enforced separation between them. Sahl bin Sa`d, however, adds that the woman was pregnant and `Uwaimir said that it was not due to his seed; so the child was attributed to the mother. The practice that thus became established was that such a child would inherit the mother and the mother him.
    Apart from these two cases, we find several other traditions also in the books of Hadith, which may or may not be related to these cases, but some of these traditions mention other cases as well, which provide important components of the Law of Li'an.
    Ibn `Umar has reported traditions according to which the Holy Prophet ordered separation between the spouses after Li'an and ruled that in case of pregnancy the child would be attributed to the mother (sibah Sitta, Ahmad). According to another tradition of Ibn `Umar, the Holy Prophet said to a man and woman after Li an: "Now your affair is with Allah: in any case one of you is a liar." Then he said to the man, "Now she is not yours: you have no right on her, nor can you treat her vindictively in any way." The man requested, "Sir, please have my dowry returned to me." The Holy Prophet said, "You have no right to have the dowry back. If you are true in your accusation, the dowry is the price of the pleasure you had from her when she was lawful to you; and if your accusation is false, the dowry has receded farther away from you than it is from her." (Bukhari, Muslim, Abu Da'ud).
    Daraqutni has quoted `Ali bin Abi Talib and Ibn Mas`ud (may Allah be pleased with them both) as saying: "The Sunnah that has become established is that the spouses who have exercised Li'an against each other, can never re-unite in marriage." Again Daraqutni has quoted Hadrat `Abdullah bin `Abbas as saying, "The Holy Prophet himself has ruled that the two can never re-unite in wedlock.'
    Qabisah bin Zu'aib has reported that a man in the time of Hadrat `Umar alleged that his wife was pregnant by illicit intercourse, then admitted that it was by his own seed, but after delivery again denied that the child was his. The case was brought to the court of Hadrat `Umar, who enforced the prescribed punishment of qazf on the man and ruled that the child would be attributed to him. (Daraqutni, Baihaqi).
    Ibn , `Abbas has reported that a man came to the Holy Prophet and said. "Sir, I have a wife for whom I have great love; but her weakness is that she does not mind if the other man touches her. (By this he might have meant zina or a lesser moral evil)." The Holy Prophet replied, "You may divorce her." The man said, "But I cannot live without her." Thereupon the Holy Prophet said, "Then you should pull on with her. " (The Holy Prophet did not ask the man for any explanation, nor took his complaint as an accusation of zina, nor applied the law of li`an). (Nasa'i)
    Abu Hurairah has narrated the case of a beduin who came to the Holy Prophet and said that his wife had given birth to a dark-coloured son and he was doubtful that it was his. (That is, the child's colour had caused him the suspicion, otherwise there was no ground with him to accuse her of zina). The Holy Prophet asked him, "Do you have any camels ?" The man replied in the affirmative. The Holy Prophet then asked, "What is their colour?" He said they were red. The Holy Prophet said, "Is any of them grey also?" He said, "Yes, Sir, some are grey also." The Holy Prophet asked, "What caused that colour?" He said, "MigHt be due to some ancestor of theirs." The Holy Prophet replied, "The same might be the cause for your child's colour." And he did not allow him to doubt and deny the child's fatherhood. (Bukhari, Muslim, Ahmad, Abu Da'ud).
    According to another tradition of Abu Hurairah, explaining the verse of !i `an the Holy Prophet said: "The woman who brings a child into a family which dces not actually belong to it (i.e. marries a man of the family with illicit pregnancy), has no relation with Allah. Allah will never admit her into Paradise. Similarly, the man who denies the fatherhood of his child, whereas the child looks up towards him, will never see Allah on the Day of Judgment, and Allah will put him to disgrace in front of all mankind." (Abu Da`ud, Nasa'i, Darimi).
    Thus, the verse of li `an, the traditions of the Holy Prophet, the precedents and the general principles of the Shari `ah together form the basis of the Law of Li'an, which the jurists have formulated a complete code with the following main clauses:
    (1) There is a difference of opinion about the man who sees his wife involved in zina with another man and kills him instead of having recourse to li`an. One group holds that he will be put to death because he had no right to take the law in his own hand and enforce the punishment. The other group says that he will not be put to death nor will he be held accountable for his act in any way provided that it is confirmed that he killed the man (adulterer) on account of zina and nothing else. Imam Ahmad and Ishaq bin Rahaviyah maintain that the man will have to produce two witnesses to confirm that he killed the adulterer only on account of zina. Ibn al-Qasim and Ibn Habib, from among the Malikis, attach an additional condition that the murdered person should be a married man; otherwise the murderer will be made subject to the law of retaliation for killing an unmarried adulterer. But the majority of jurists are of the opinion that the man will be exonerated from retaliation only when he produces four witnesses to establish zina, or if the murdered person himself confesses before death that he committed zina with the wife of the murderer, and if it is also confirmed that the murdered person was a married man. (Nail al-Autar, vol. IV, p. 228).
    (2) The Law of Li `an cannot be applied mutually at home, but in a court of law in front of the Judge.
    (3) Exercise of li`an is not the sole right of the man; the woman also has a right to demand it in a court of law if her husband accuses her of zina, or denies fatherhood of her child.
    (4) There is a difference of opinion among the jurists as to whether li `an can be resorted to between any husband and his wife, or whether they have to satisfy certain conditions. Imam Shafi'i holds that only that husband whose oath is legally reliable and who can exercise the right of divorce, can swear the oaths of li `an. In other words, sanity and maturity according to him, are the sufficient conditions which entitle a husband to exercise li'an no matter whether the spouses are Muslim or non-Muslim, slave or free, and whether their evidence is acceptable or not, and whether the Muslim husband has a Muslim or a zimmi wife. Imam Malik and Imam Ahmad have also given almost the same opinion. But the Hanafis maintain that li'an can be exercised only by free Muslim spouses, who should not have been convicted of qazf previously. If both husband and wife are nonMuslim, or slaves, or convicted of qazf previously, they cannot exercise li `an against each other. Furthermore, if the woman was ever found guilty of an illicit or doubtful relationship with another man, exercise of li `an will not be valid. The Hanafis have imposed these conditions, because according to them, there is no other difference between li `an and qazf than this: -the other man commits qazf, he is given the prescribed punishment, but if the husband himself commits it, he can escape the punishment by exercising li `an. In all other respects, li `an and qazf are identical. Moreover, since according to the Hanafis, the oaths of li an are in the nature of evidence, they do not concede this right to a person who is not legally fit to give evidence. But the truth is that in this matter the position of the Hanafis is weak, and the opinion of Imam Shafi`i is correct, because the Qur'an has not made the accusation of the wife a component part of the verse of qazf, but has prescribed a separate law for it. Therefore, it cannot be linked with the law of qazf and treated under the conditions prescribed for qazf. Then, the wording of the verse of li'an is different from the wording of the verse of qazf and the two lay down separate injunctions. Therefore, the law of li `an should be derived from the verse of li `an and not from the verse of qazf. For instance, according to the verse of qazf, the person who accuses chaste women (muhsanat) of zina, deserves to be punished. But in the verse of li `an, there is no condition of the chastity of the wife. A woman might have committed sins in life, but if she repents later on and marries somebody, the husband is not authorised by the verse of li `an to accuse her unjustly whenever he likes, and to deny fatherhood of her children simply because she had once lived in sin. The other equally important reason is that there is a world of difference between accusing a wife and accusing the other woman. The law cannot treat the two alike. A man has nothing to do with the other woman. He is neither attached to her emotionally, nor his honour, his family relations and rights are at stake nor his lineage. The only meaningful interest he can have in the woman's character can be his desire to see a morally pure and clean society. Contrary to this, his relationship with his wife is deep and of varied nature. She is the custodian of the purity of his race, of his property and his house; she is his life partner, sharer of his secrets, and with her he is attached in most delicate and deep feelings. If she is morally corrupt, it will deal a serious blow to his honour, his interests and his progeny. These two things, therefore, cannot be considered alike, and the law cannot treat them as equal to each other. Is an evil affair of the wife of a zimmi, or a slave, or a convicted husband in any way different, or less serious, in consequences than that of the wife of a free, mature and sound Muslim? If the husband himself sees his wife involved in zina with another person, or has reasons to believe that his wife is pregnant by illicit intercourse, how can he be denied the right of li 'an? And if he is denied this right, what else is there in our law which can help him out of his awkward situation? The intention of the Qur'an seems to be to open a way out of a difficult situation for married couples in which a husband may find himself placed due to the wife's immorality or illicit pregnancy, or a wife due to the husband's false accusation or unjustified denial of the fatherhood of her child. This is not particularly the need of the free and sound Muslims alone; there is in fact nothing in the Qur'anic Text which may confine it to them only. As for the argument that the Qur'an has described the oaths of li `an as evidence (shahadat), and therefore the conditions of evidence will apply here, the logical implication would be that in case a righteous and just husband whose evidence is acceptable, takes the necessary oaths, and the wife declines to take the oaths, she would have to be stoned to death, because her immorality would thus become established. But it is strange that in this case the Hanafis do not recommend stoning. This is a clear proof of the fact that they too do not regard the oaths as exactly identical with evidence. The truth is that though the Qur'an describes the oaths of li `an as evidence, it does not regard them as evidence in the technical sense, otherwise it would have required the woman to swear eight oaths and not four.
    (5) Li `an is not necessitated by an allusion or expression of doubt or suspicion, but only when the husband accuses his wife clearly of zina, or denies in plain words that the child is his. Imam Malik and Laith bin Sa`d impose an additional condition that the husband while exercising li `an must say that he has himself seen his wife involved in zina. But this is an unnecessary restriction which has no basis whatever in the Qur'an and Hadith.
    (6) If after accusing his wife, the husband declines to swear the oaths, the verdict of Imam Abu Hanifah and his companions is that he will be imprisoned and shall not be released until he exercises li `an or confesses the falsehood of his accusation, in which case he will be awarded the prescribed punishment of qazf On the contrary, Imam Malik, Shafi`i, Hasan bin Saleh and Laith bin Sa`d express the opinion that refusal to exercise li`an itself amounts to confessing one's being a liar, which makes the prescribed punishment of qazf obligatory.
    (7) If after the swearing of oaths by the husband, the wife declines to lake the oaths, the Hanafis give the opinion that she should be imprisoned and should not be released until she exercises li `an, or else confesses her guilt of zina. On the contrary, the other Imams (as mentioned in clause 6 above) say that in this case she will be stoned to death. They base their argument on the Qur'anic injunction: "...it shall avert the punishment from her if she swears four times by Allah," Now that she declines to swear the oaths, she inevitably deserves the punishment. But the weakness in this argument is that the Qur'an does not specify here the nature of "punishment"; it simply mentions punishment. If it is argued that punishment here means the punishment of zina only, the answer is that for the punishment of zina the Qur'an has imposed the condition of four witnesses in clear words, and this condition cannot be fulfilled by four oaths sworn by one person. The husband's oaths can suffice for him to escape the punishment of qazf and for the wife to face the injunction of li `an, but they are not enough to prove the charge of zina against her. The woman's refusal to swear the oaths in self-defense certainly creates a suspicion, and a strong suspicion indeed, but a prescribed punishment cannot be enforced on the basis of suspicions. This thing cannot be considered as analogous with the prescribed punishment of qazf for the man, because his qazf is established, and that is why he is made to exercise li `an. But contrary to this, the woman's guilt of zina is not established unless she herself makes a confession of it or four eye-witnesses are produced to prove it.
    (8) If the woman is pregnant at the time of li `an according to Imam Ahmad, li`an itself suffices to absolve the husband from the responsibility for pregnancy whether he has denied accepting it or not. Imam Shafi`i, however, says that accusation of zina by the husband and his refusal to accept responsibility for pregnancy are not one and the same thing. Therefore, unless the husband categorically refuses to accept the responsibility for pregnancy, he will be considered as responsible for it in spite of the accusation of zina by him, because the woman's being adulterous dces not necessarily mean that her pregnancy is also due to zina.
    (9) Imam Malik, Imam Shafi`i and Imam Ahmad concede the husband's right to deny responsibility for pregnancy during pregnancy, and allow him the right of li`an on that basis. But Imam Abu Hanifah says that if the basis for the man's accusation is not Zina, but only this that he has found pregnancy in the woman when it could not possibly be due to him, exercise of li 'an should be deferred until after delivery because sometimes symptoms of pregnancy appear due to some disease and not actual pregnancy.
    (10) If a husband denies fatherhood of a child, there is a consensus that li`an becomes necessary There is also a consensus that after he has accepted e child once (whether it is in clear words or by implication, e.g. by receiving congratulatory messages on its birth, or by treating it lovingly like. one's own child and taking due interest in its bringing up), he loses his right to deny him later, and if he dces so, he makes himself liable to the prescribed punishment of qazf. There is, however, a difference of opinion as to how long the father retains a right to deny fatherhood of the child. According to Imam Malik, if the husband was present at home while the wife was pregnant, he can deny the responsibility from the time of pregnancy till the time of delivery; after that he will have no right. However, if he was away from home and delivery took place in his absence, he can deny the child's fatherhood as soon as it comes to his knowledge. According to Imam Abu Hanifah, if he denies within a day or two of the child's birth, he will be absolved from the responsibility of the child after exercising li`an, but if he denies after a year or two, li`an will be valid, but he will not be absolved from the responsibility of the child. According to Imam Abu Yusuf, the father has the right to deny fatherhood within 40 days of the child's birth. or knowledge of its birth; after that he will have no right. But this restriction of 40 days is meaningless. The correct view is that of Imam Abu Hanifah that fatherhood can be denied within a day or two of the child's birth or knowledge of its birth, unless one is hindered from doing so due to a sound and genuine reason.
    (11) If a husband accuses a divorced wife of zina, according to Imam Abu Hanifah, this will be a case of qazf and not of li `an. Li `an can be resorted to between the spouses and cannot be extended to a divorced woman unless it is a retractable divorce and the accusation is made within the period of retraction. But Imam Malik holds that this will be qazf only if it does not involve the question of accepting or denying the responsibility of pregnancy or fatherhood of the child. If it is not that, the man has the right to exercise li `an even after pronouncing the final divorce, because in that case he would not be having recourse to li `an for the purposes of bringing infamy on the woman but to absolve himself from the responsibility of the child who, he believes, is not his. The same almost is the opinion of Imam Shafi`i.
    (12) There is a complete consensus of opinion in respect of certain legal implications of li `an, but certain others have been disputed by the jurists. The agreed ones are the following:
    Neither the woman nor the man is liable to punishment. If the man denies fatherhood of the child, it will be attributed to the mother alone; it will neither be attributed to the father nor will inherit him; the child will inherit the mother and the mother him. Thereafter nobody will have the right to call the woman adulterous nor the child illegitimate, whether the people might be wholly sure of her being adulterous under the circumstances at the time of li `an. Any person who repeats the old charge against the woman or her child, will make himself liable to the punishment of qazf. The woman's dowry will remain intact, but she will not be entitled to claim maintenance, etc. from the man, and she will become forbidden to him for ever,
    There is, however, a difference of opinion in respect of two things:
    (a) After li `an how will separation be effected between the husband and the wife?
    (b) Is it possible for them to re-unite in marriage after they have been separated on account of li'an?
    As regards the first question, Imam Shafi'i holds the opinion that as soon as a man has exercised his li'an, the woman stands automatically separated whether she refutes the man's charge by her li `an or not. Imam Malik, Laith bin S`ad and Zufar maintain that separation is effected when both a man and a woman have exercised their li `an one after the other. Imam Abu Hanifah, Abu Yusuf and Muhammad hold that separation dces not take place automatically after li`an, but it is effected by the judge. If the husband pronounces divorce, it takes effect, otherwise the judge will announce their separation.
    Regarding the second, question, the opinion of Imam Malik, Abu Yusuf, Zufar, Sufyan _Thauri, Ishaq bin Rahaviyah, Shafi`i, Ahmad bin Hanbal and Hasan bin Zaid is that the spouses who have been separated due to li'an, are forbidden to each other for ever. Even if they wish to remarry, they cannot do so in any case. The same is the opinion also of Hadrat `Umar, Hadrat `Ali and Hadrat `Abdullah bin Mas`ud. Contrary to this, Said bin Musayyab, Ibrahim Nakha`i, Sha`bi, Said bin Jubair, Abu Hanifah and Muhammad (may Allah be pleased with them all) opine that if the husband confesses his lie, and he is awarded the prescribed punishment for qazf, the two can re-unite in marriage. They argue that it is li `an which makes them unlawful for each other. As long as they stand by their li `an, they will remain forbidden for each other, but when the husband confesses his lie and receives the punishment, li `an will become null and void and so will their prohibition to marry each other again.
     
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