POST-ADULTERY AND POST-FORNICATION MARRIGE (1)

Islam: Seeking Knowledge
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Marriage in Islam occupies special position. It is regarded to be one of the most important building blocks of a family, the backbone for a strong and loving community, thus, it is the fabric of the Muslim society. Marriages create relations between the married couple and gives husband and wife sense of achievement and a brighter future together. The benefits of marriage go beyond those expected and experienced by the married individuals; it brings two families which were perhaps once strangers to each other, into kinship, love and caring for one another. Among its social benefits, the recurring effect of marriages ensures the development and the preservation of mankind from becoming extinct.

Above all, there is a significant religious benefit that is necessarily inseparable from marriage. In religious perspective, marriage is essentially a medium through which men and women are able to avoid the outlawed relations in the form of fornication and adultery. It is therefore, highly respected as a substantial cultural cord that is crucial in curbing sexually immoral ills of the society. Taking this into consideration, Islam orders its followers to start their engagement in marriage in a clean atmosphere, and continually preserve its cleanliness under all situations and circumstances, rendering it free from all elements of spiritual impurity and defilement. It is for this reason that we are initially required to look for the well-cultured, well-mannered, morally good wives and husbands as they are going to be our future partners with whom we share pain and pleasure and indeed they are going to be a part of our life.

But there are moments in human life when man and woman begin their matrimonial life wrongly, engaging themselves in an illegitimate relation – the relation that results in the evil deeds of adultery or fornication. When this happens, the whole wisdom of marriage is lost as the couple will lose trust in each other. This is because their premarital mating will plant in their conscious a seed of mistrusting each other. As the years go by, their lust for each other diminishes and they start to doubt each other’s commitment to their marriage. When the mistrust grows, the mutual respect is lost, the marital rights and duties are pushed aside and the conflict in the family sets in. Why does this happen? The reason is that, in each one of this couple’s mind, the other is an adulterer or a fornicator and must not be trusted. This is a poisonous climate in a family.

But the question everyone of us ought to ask is that, is the post-adultery or post-fornication marriage permissible according to the Islamic law? In other words, is it allowed to get married to a person with whom you once participated in an illegitimate sexual intercourse? Muslim scholars have two opinions on the subject:

1)       There are those who maintain that such kind of marriage is legal and that the illegal act committed by the unmarried couple cannot change the legality of what is legal.

2)       Others believe that such kind of marriage is not allowed in Islam, and the very act of adultery or fornication renders it illegal.

 

 

ARGUMENTS AND PROOFS

Those who believe that to get married to a woman with whom one has practiced fornication or adultery is permissible, base their arguments on three things:

1)       An analogical inference.

2)       A Prophetic tradition.

3)       Narratives from some Companions of the Prophet (PBUH).

 

Analogical inference

The exponents and advocates of the idea of the legitimate marriage after the illegal sexual intercourse, found their analogy upon the idea of likening a post-adultery or post-fornication marriage to a man who has stolen a fruit in someone’s garden. While in the process, the garden owner gets in and catches him. After a tag-of-war of words, the thief accepts to buy the fruit. In this case, the first evil deed of stealing the fruit, as committed by the thief, does not make the second act of selling and buying the fruit illegal. Typically, when we come to the issue of marriage, the once illegal sexual intercourse committed by the unmarried couple, does not outlaw their marriage which took place later on as long as other legal procedures have been accomplished.

In response to that, the opponents of the idea of legalizing the post-adultery marriage argue that the criterion used to compare between those two things is basically wrong, for there is no common factor between the act of stealing a fruit and the act of involving in that type of marriage. To appreciate this, consider for instance that, man in Islam, is allowed to buy the very garden from which his own father once stole a fruit; but he is not permissible to get married to a woman with whom his father has fornicated or committed adultery. Equally, one is allowed to possess an orchard once owned by one’s own father or one’s son, but one is not allowed to get married to a woman once married to either of them.[1] It will be seen, on this basis, that the aforesaid analogy has lost basic conditions for it to be juristically acceptable.

A narrative from the Prophet (PBUH)

Another evidence produced by the supporters of the post-adultery marriage, has been drawn from a tradition which has been wrongly attributed to the Prophet. It has been narrated from the authority of Ibn Omar and Sayyida ‘Aisha that the Prophet (PBUH) said: لا يحرم الحرام الحلال “What is illegitimate cannot render what is legitimate illegitimate”.[2] As such, an adultery or fornication cannot render the legal marriage illegitimate.

Opponents Response:

In response to that, the opposing scholars have categorically refuted the idea, arguing that the tradition narrated by Al-Bayhaqi in his different works, Ibn Majah in his Al-Sunan and Al-Daraqutni in his Al-Sunan from the authority of Ibn Omar, is not authentic, as there is in its chain of transmitters, an unreliable narrator, namely Abdullahi bin Omar.[3] Al-Mizzi in his Tahdhibu Al-Kamal and Ibn Hajar in his Tahdhibu Al-Tahdhib say the following regarding Abdullahi bin Omar:

(Al-Imam) Ahmad said about him: “He used to add more narrators to a sanad[4] (he added narrators who were originally not present in the sanad of traditions), and also contradicted (other reliable narrators). Ali bin Al-Madini, Yahya bin Said and Al-Nasai say: “He is weak”.[5]

It is clear, therefore, that the tradition which has been attributed to Abdullahi bin Omar, the Sahaba, through another Abdullahi bin Omar, non-Sahaba, is not acceptable according to the laws of the science of the Prophetic Traditions, for Abdullahi bin Omar, the non-Sahaba, is regarded to be an unauthentic narrator. This weakness of Abdullahi bin Omar, the non-Sahaba, and the inauthenticity of the tradition itself are finally verified by both Ibn Hajar in his Taqribu Al-Tahdhiband Al-Albani in his Al-Dhaifa. The former says about the narrator, Abdullahi bin Omar, non-Sahaba: “He is weak”,[6] and the latter says about the very tradition: “It is not authentic…..this is not authentic because of Abdullahi bin Omar (the narrator): he is weak”.[7]

The account that has been attributed to Aisha:

As for the second sanad in which the tradition has been ascribed to Sayyida Aisha, Al-Albani says the following:

(The tradition that): What is illegitimate cannot render what is legitimate illegitimate which has been mentioned by Al-Suyuti from both Ibn Omar and Aisha, is an unauthentic tradition”.[8]

He adds:

” لا يحرم الحرام الحلال ” . قلت : وهو منقطع بين ابن شهاب وعلي وعلقه البخاري

وقال: وهذا مرسل ” . وقد روي مرفوعا من حديث ابن عمر وعائشة ولا يصح

The sanad of (the tradition that): What is illegitimate cannot render what is legitimateillegitimate has a gap between Ibn Shihab and Ali (meaning one narrator has not been mentioned and so unknown who he is). Al-Bukhari received it without sanad. Then he said: ‘This is a hadith mursal (meaning it has been narrated from the Prophet without being mentioned the Sahaba who heard it from him). The same hadith has been also narrated from the Prophet himself with a coherent chain of transmitters on the authority of both Ibn Omar and Aisha, yet it is also unauthentic.[9]

Again in his Al-Dha’ifa, Al-Albani has quoted from Sayyida Aisha a tradition in which the Prophet was asked that:

What about a man who fornicates with a woman, is it permissible for him to get married to her daughter; or if he fornicates with the daughter is he permitted to get married to the mother?” In reply, the Prophet said: “The illegal act does not render (the legal marriage) illegitimate: what renders it illegitimate is the legal marriage itself.[10]

Elaborating on it, Al-Albani says:

This is nothing! ….Al-Bayhaqi says: ‘it is Othman bin Abdil-Rahman only, an unreliable narrator, that has narrated it. Yahya bin Ma’in and other experts at the Prophetic Traditions say that he is a weak narrator. Indeed, he is a great liar. Ibn Hiban says: ‘He has the habit of narrating fabricated accounts from the reliable narrators’. Even Ibn Ma’in, in his other statements, has clearly stated that Othman bin Abdil-Rahmanis is a liar….Moreover, the man that has transmitted this tradition from him, is Al-Mughira bin Isma’il, an unknown narrator.[11]

Summary and main points

1)       The question of whether a post-adultery or post-fornication marriage is acceptable according to the Islamic law or not, is the issue in which Muslim scholars have adopted dual opinions.

2)       Those who favor the permissibility of such marriages, have based their argument on three major grounds. In this article we have discussed two of them:

  1. The analogy between adultery, or fornication with the act of stealing a fruit in someone’s garden. The evil of stealing the fruit does not logically and juristically mean that the two parties – the thief and the owner of the fruit – cannot engage in the business of selling and buying the same fruit once stolen. In this sense, the act of adultery or fornication does not render the legal marriage illegal. But this analogy has been shown to be erroneous as there is a serious difference between the transaction of fruits or of an orchard and the contract of marriage, in that a man is allowed to possess an orchard once possessed by his father but cannot get married to a woman once married by his father.
  2. The Prophetic tradition that:لا يحرم الحرام الحلال What is illegitimate cannot render what is legitimate illegitimate. This is another basis whereupon the advocates of the idea of the legitimate marriage after the illegal sexual intercourse have founded their argument. But the basic problem still exists, for the tradition itself has been rejected on the basis of its inauthenticity due to the unreliable narrators found in its chain of transmitters.

To be continued in the article no. 2.

Juma Al-Mazrui

 

 

[1] – Al-Imam Ahmad Al-KhaliliFatawa Al-Nikahp. 154.

[2] – Al-BayhaqiAl-SughraVol. 5, p. 325, tradition no. 1920.Al-Kubra Vol. 7, p. 169, tradition no. 14339. Al-Ma’arifa Vol. 11, p. 353, tradition no. 4402.Al-TabaraniAl-Awsat Vol. 5, p. 104, tradition no. 4803, also Vol. 7, p. 183, tradition no. 7224.IbnMajahAl-Sunantradition no. 2005. Al-DaraqutniAl-SunanVol. 3, p. 268, tradition no. 88, also no. 89 an 90.

[3]– Not Abdullahi bin Omar who was a Companion of Prophet to whom this tradition is attributed.

[4]Sanad in the science of the Prophetic tradition means chain of transmitters. For example, when I say: “From Zuhri, from Salim, from Ibn Omar, from the Prophet said……”. This chain of narrators is called sand and the very words of the Prophet or Sahaba is called matn(text).

[5]– IbnHajarTahdhibu Al-TahdhibuVol. 5, p. 285-287, biography no. 564. Al-MizziTahdhibu Al-Kamal Vol. 5, p. 495-497, biography no. 3462.

[6]– IbnHajarTaqribu Al-Tahdhibp. 314, biography no. 3489.

[7] – Al- AlbaniSilsilatuAhadithi Al-Dhaifawa Al-Maudhuu’aVol. 1, p. 564, tradition no. 385.

[8]– Al-AlbaniDha’ifu Al-Jami’itradition no. 6331, SahihuwaDha’ifu Al-Jami’i Al-SaghirwaZiyadatihVol. 1, p. 1448, tradition no. 14473. Source (Al-Maktaba Al-Shamila).

[9]– Al-AlbaniIr-wau Al-GhalilVol. 6, p. 288, tradition no. 1881.

[10] – Al-TabaraniAl-Awsat Vol. 5, p. 104-105 tradition no. 4803, Al-BayhaqiAl-Kubra Vol. 7, p. 169, tradition no. 14341. Al-DaraqutniAl-SunanVol.3, p. 368, tradition no. 90.

[11]– Al-AlbaniSilsilatuAhadithi Al-Dhaifawa Al-Maudhuu’aVol. 1, p. 565-66, tradition no. 388.

 

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