What did the companions and tābi’īn say regarding married converted Muslim women after the Prophet’s death?

Abu Bakr ibn Abi Shaibah recorded two dozen narrations in al-Muṣannaf (nos. 18297 – 18323; 4/105-107) about this issue from `Umar, `Ali and ibn al-`Abbaas from the companions, and a number of the successors. For those unfamiliar, the Musannaf of ibn Abi Shaibah is the single most comprehensive and trustworthy source of fiqh narrations from the earliest generations. Of similar value are ibn al-Mundhir’s al-Awsat and ibn Ḥazm’s al-Muḥallā.

 

Forerunners to what is now the Mainstream Opinion

Under the heading of “What they say: a woman accepts Islam before her husband, and who said they are to be separated,” ibn Abi Shaibah mentions narrations from `Abdullah ibn al-`Abbaas (heard by `Ikrimah), and then from the tābi’īn `Umar ibn `Abd al-`Aziz with al-Hasan al-Baṣrī, `Aṭā’ ibn Abi Rabāḥ, Ṭāwus al-Himyari, Mujahid ibn Jabr, and Sa`eed ibn Jubair. Note that most of the successors mentioned here, with a couple exceptions, are all devoted students of ibn al-`Abbaas. And it is those same successors that also began spreading the idea that if the husband accepts Islam during her waiting period, she can remain with him, otherwise, no (see nos. 18317 – 18322). And of the other companions that had separate views, ibn al-`Abbaas was the longest living and devoted the most time to teaching—unlike the two caliphs who obviously devoted little time to teaching—so there is little surprise that his view became held by the majority. And for benefit, ibn Ḥajr said the chain to Ibn al-`Abbaas is sound (Fath, 9/421).

 

A Kufic Opinion, Forgotten for 1200 Years

Then, ibn Abi Shaibah recorded under the heading, “if he does not accept Islam, she is not removed from him” narrations from `Umar and `Ali (whose narration was from Sa`id ibn al-Musayyib) from the companions, and then `Āmir al-Sha`bī and Ibrahim al-Nakha’ī, both from the middle of the successors’ generation in Kufah.

`Ali’s narrations (nos. 18307, 18308) specifically say:

إِذَا أَسْلَمَتِ النَّصْرَانِيَّةُ امْرَأَةُ الْيَهُودِيِّ أَوِ النَّصْرَانِيِّ كَانَ أَحَقَّ بِبُضْعِهَا لِأَنَّ لَهُ عَهْدًا

“If a Christian woman, the wife of a Jew or Christian, accepts Islam, then he has more right to her buḍ`, because he has a covenant.”

I specifically left the word buḍ` untranslated. It is similar to the word nikāḥ, because it can mean marital contract or marital intercourse. However, while nikāḥ is more often used for the contract, buḍ` is more often used for intercourse and the private parts (see al-Fayrūzaābādī, pg. 703). If we take any of these meanings and try to fit it in the sentence, it is as if Ali said “he has more right to [access] her private parts” rather than “he has more right to her contract” since the contract belongs to both of them, or “her intercourse”. No. Clearly, Ali meant her private parts “أحق بفرجها”. And there’s no shock in that. This is how the word is primarily used, the private parts for sexual intercourse, and it is the only meaning that fits the context and grammar usage in a way that makes sense. In the famous hadith, no. 25 of al-Nawawi’s Forty, the Prophet ﷺ said, “And in your buḍ` is a sadaqah [charity or reward].” Here, it meant intercourse. The companions already knew marriage is half of faith, but the Prophet ﷺ was enumerating simple acts that carried rewards, and then he mentioned this, prompting them to ask, “Would we really be rewarded by Allah for purging our desires?” And the Prophet ﷺ set a precedent saying, “Wouldn’t you be penalized for purging your lusts incorrectly? Likewise, by using the lawful means Allah gave you, you will be rewarded.” Ibn al-Athīr, famous Arabic scholar showed its multiple meanings and usages through examples of the Prophet ﷺ. From the phrases chosen, a reader may understand that buḍ` may mean the contract when used referring to bachelors and refer to intercourse in the context of married individuals (see al-Nihayah, 1/133) but context is always the best arbitrator.

The second point about this statement of `Ali’s is the word `ahd or covenant. Some might think it could mean marital contract or `aqd, but that would be very uncommon usage of the language, and it would be redundant, like saying “the husband has more right to his wife because he’s her husband.” But `Ali was dispensing fiqh with `ilal causes, as a ruler and judge, and he had to be precise and use words for the most apparent and common meanings. The well known `ahd covenant that jurists would primarily refer to from Christians and Jews is the dhimmah pact. This clearly shows that he believed that furqah separation did not automatically occur while the woman had not emigrated from a land of oppression to a land of Islam. Abu Hanifa later took the `illah of `Ali—and they were both from Kufah^[1]Now you see how fiqh evolves? Even if we try to claim that `Ali’s narration is weak or broken, the fact is that the `illah he cited was still in use with a fellow Kufite shows that there was indeed … Continue reading—but Abu Hanifa mixed it with one pronouncement of `Umar that had reached him—that the husband should choose Islam or lose his wife. `Ali on the other hand seemed to understand that if the jizyah indemnity tax was paid, then there is no cause for separating the two. The woman registered her Islam, so if her husband tried to force her out of it, she could complain to the authorities. If she was voluntarily reneging, that would not slip up since she announced it and it was on record.

A third point about this narration is that `Ali mentioned the two groups of Ahl-Kitab, the Jews and Christians, in his pronouncement. He was in `Iraq, surrounded by Jews, Christians, Zoroastrians, and some philosophical learning centers. So when Ali distinguished the People of the Book, it is as if he is saying that idol worshipers without a Recognized Scripture and atheists may not enjoy this status. So for `Ali, the `illah that made separation viable may have been idolatry combined with hijrah (physical separation signifying contractual separation), war or citizenship, as signified by the jizyah. It’s difficult to understand the benefit of specifying Jews and Christians if Ali only meant that the marriage was to be suspended.

And no one can claim `Ali was ignorant of verses of the Quran regarding the matter—he is a known transmitter of the modes of recitation—or that he had lesser knowledge of the previously mentioned stories. After all, he was married to Umāmah, the daughter of Zainab and Abu al-`As, which makes us think that out of all the companions, indeed, out of all the Salaf that spoke about this issue, he would have the most intimate knowledge and understanding. Scholars universally recognize that a person more closely connected to a story (like `Ali in this case) has a more preferred understanding than those who comment from afar.

And he said,

هُوَ أَحَقُّ بِهَا مَا دَامَا فِي دَارِ الْهِجْرَةِ

“He has more right to her as long as they both remain in the land of hijrah.”

Land of hijrah, i.e. land of Islam, and haven’t left the Muslim world or physically separated. This suggests that Ali viewed their marriage subject to annulment if the husband wanted to leave with her to a land where she would be a minority and could be persecuted and would not be protected by the Muslim community.

 

Other Statements from the Companions and Successors

There are multiple opinions recorded from `Umar, the second caliph of Islam. They frequently mention where they wrote to `Umar, even though there were jurists in their presence. One narration agrees with dissolving the marriage and that `Umar ordered that Islam be explained first to the husband, who was from an Arab-Christian tribe Bani Taghlab, so that he should embrace it with his wife, but when he did not, `Umar ordered them separated. This is what Abu Hanifa clung to.

In other instances, `Umar said that the woman is acknowledged with her husband tuqarru `indahu (no. 18312). And in other examples (nos. 18309, 18313), `Umar wrote to them that she is to be offered a choice “tukhayyar”.

أَنَّ نَصْرَانِيَّةً أَسْلَمَتْ تَحْتَ نَصْرَانِيٍّ، فَأَرَادُوا أَنْ يَنْزِعُوهَا مِنْهُ، فَرَحَلُوا إِلَى عُمَرَ فَخَيَّرَهَا

“A Christian woman accepted Islam while married to a Christian man and the Muslims wanted to remove her from him, so they rode to `Umar who offered her a choice.”

Ibnul-Qayyim said regarding this, “It’s known by necessity (معلوم بالضرورة) that he allowed her to choose between waiting for him to accept Islam [which may be more than a few months!—CC] so that she would be his wife, or choose to leave him.” (Zad al-Ma`ad, 4/127, where ibnul-Qayyim discusses this issue over a few pages). Indeed, if we planted ourselves in the time of `Umar, without knowledge of ibn al-Abbaas’ eventual opinion which would not be spread for at least another couple decades, or that four schools would cover the Muslim world and they’d all agree to his opinion—ignoring that, what could the choices possibly have been other than staying with her husband or leaving him?? Certainly not choosing between Islam or not.

Then, al-Zuhrī (d. 124), one of Imam Malik’s teachers and famous historian and hadith scholar, interestingly said (no. 18316), “The Imam’s separating of them is the annulment.” And apart from some of ibn al-`Abbaas’ students, most of those mentioned in these narrations was either a caliph or a judge, suggesting that the matter really should only be decided by an Islamic court as al-Zuhri states. Al-Zuhrī also said (no. 18323):

أَيُّمَا يَهُودِيٍّ أَوْ نَصْرَانِيٍّ أَسْلَمَ، ثُمَّ أَسْلَمَتِ امْرَأَتُهُ فَهُمَا عَلَى نِكَاحِهِمَا إِلَّا أَنْ يَكُونَ فَرَّقَ بَيْنَهُمَا سُلْطَانٌ

“Any Jew or Christian who accepts Islam, then his wife accepts Islam, then they are on their original marriage, except if a judge separated them.”

This is an obvious precedent for the opinion of ibn Taymiyyah and ibnul-Qayyim. In other words, unless the couple voluntarily separate, or the legal courts separate them, no one else, no masjid imam or student of knowledge has the authority to make such a weighty pronouncement. This is a very tempting opinion. Ibn Taymiyyah and ibnul-Qayyim added that while the couple may live together, they should not have sexual relations, but merely cooperate upon righteousness and the Muslim woman should steadily employ whatever faculties she has to sway her husband to Islam. But even if he does not want to accept Islam, ever, but yet the two find benefit from living with each other without sexual relations, they are allowed to do so, as there exists no clear text prohibiting that. The first scholar to explicitly mention living together without sexual relations was Dāwūd ibn `Ali al-Ẓāhirī (see Ahkam Ahl-Dhimmah 2/646) saying,

إِذَا أَسْلَمَتْ زَوْجَةُ الذِّمِّيِّ وَلَمْ يُسْلِمْ فَإِنَّهَا تَقَرُّ عِنْدَهُ وَلَكِنْ يُمْنَعُ مِنْ وَطْئِهَا

“If the wife of a covenanted man accepts Islam but he hasn’t, she remains with him, but he is prevented from intercourse with her.”

 

To conclude this brief look at the opinions of the Salaf, we note that while the opinion voiced by Ali and those who followed him from the Kufites seems very controversial to us, it was a recorded opinion nonetheless and cannot be declared inadmissible. While some researchers attempted to claim Ali didn’t mean what he said, turning his words into puzzles and riddles, both ibn Ḥazm and ibnul-Qayyim ^[2]see Ahkam ahl-Dhimmah 2/646-647 and where he devotes 40 pages to this issue, but forgets to respond to Ali’s opinion!! considered Ali’s opinion, along with `Umar’s opinion of giving choice, to be separate opinions in the issue—i.e. unlike the opinions of anyone else. This shows without a doubt that understanding Ali’s words to mean the permissibility of sexual intercourse between the two spouses is a valid understanding, as ibn Ḥazm and ibnul-Qayyim understood as well. After all, intercourse is the most immediate benefit and primary motivator of marriage. Since the narrations of `Umar and `Ali and the Kufites who agreed did not explicitly deny this right, then it may be implicitly included.

Jurists have all tried to explain the ambiguous and undetailed narrations according to their own preferred school of thought, similarly to what I have done, filling in the gaps with what we may believe to be assumable. Ibn Shubrumah (d. 144) gave the primary precedent for the 4 imams when he said, “The people during the time of Allah’s Messenger might witness a man accept Islam before his wife, or the woman accept Islam before her husband. So whichever one would accept Islam before the conclusion of her waiting period kept his wife, but if he accepted Islam after her waiting period, there was no marriage between them,” (Zād 4/127). Ibnul-Qayyim likewise said, supporting the opinion of al-Zuhrī, some Kufites, Dāwūd and ibn Taymiyyah, “We never heard of anyone renewing their marriage contract, ever. Rather, the reality was one of two things: either they’d be separated, or they’d remain together, even if the Islam of one or the other was delayed,” (Zad 4/125).

Whose opinion do you feel has the stronger evidence?

 

The points of unity and difference or taḥrīr maḥall al-nizā`

The scholars unanimously agree that:

1. The marriages of the disbelieves between themselves are acknowledged as long as their own religions and laws acknowledge them. ^[3]Among classical scholars. But as for LGBT issues, this is a new phenomenon which I won’t include.
2. A Muslim woman may never initiate a marriage contract with a non-Muslim man.
3. If a bride-to-be accepted Islam before consummation and her husband-to-be refuses then and there, they have no marriage, and there is no waiting period, just like a divorce before consummation.

The points of disagreement, during the formative classical period were:

1. Must Islam be “shown” to the husband? Should he be invited to Islam? Is that waajib to be done right then and there? Abu Hanifa alone says yes, based on one narration from `Umar. Why is this relevant? Imagine if a woman—like we saw earlier from the Prophet’s time—accepted Islam and coincidentally saw that as a good reason to leave her husband and start a new life. She might not want to take any chances of her husband accepting Islam too. If it’s obligatory, she has to wait for a qualified Islamic court-appointed teacher to sit with her husband before she can move on with her life.
2. When does the annulment occur—for those who claim it does occur? Is it after the woman says the last word of the declaration of faith, like ibn Ḥazm claimed, and some narrations from Ahmad and ibn al-Mundhir? Or, like the majority say, after a reasonable meeting or sit-down while the husband is invited to Islam and refuses?
3. What kind of dissolution is it? A divorce ṭalāq or an annulment faskh? With the waiting period or without (as ibn Ḥazm seems to think, although alone)?
4. Should the wife or the Muslim community or leadership return to the husband the value of what he offered her in marriage? This would be what is apparent from the ayah and the Permanent Committee voiced, but is hardly mentioned in the books of fiqh. And if the jurists thought that the ruling of returning wealth was limited in historical context, we would like to see their evidence which clearly indicates such, and why nothing else from the verse is limited to historical context, as the jumhūr claim.
5. If the husband accepts Islam after her waiting period, and they want to live together as a married couple, do they need a new contract, like the four schools say, or not, as ibnul-Qayyim primarily argued on behalf of several predecessors of his, like al-Zuhrī and Dāwūd?
6. If, according to the opinions beyond the 4 schools, they remain living together indefinitely, are they allowed to enjoy each other sexually, as the opinion of `Ali and some Kufites indicate?
7. If they are not allowed sexual intercourse, but happen to fall into it, is the sin like zinā’ fornication (as followers of the 4 imams’ suggest) or lesser, like intercourse while menstruating (as followers of ibnul-Qayyim’s opinion suggest)?

Addressing a Claim of Consensus

Regarding point number six and the ruling of sexual relations, some scholars claimed that the Muslims reached consensus that it is impermissible. Al-Qurṭubī said (3/72):

وَأَجْمَعَتِ الْأُمَّةُ عَلَى أَنَّ الْمُشْرِكَ لَا يَطَأُ الْمُؤْمِنَةَ بِوَجْهٍ، لِمَا فِي ذَلِكَ مِنَ الْغَضَاضَةِ عَلَى الْإِسْلَامِ

“The Ummah has agreed unanimously that the polytheist may not penetrate a believing woman for any reason, due to what is contained in that of degradation towards Islam.”

Likewise, ibn Qudāmah (7/154) uses a word implying consensus, while difference exists, and he did not mention any of the narrations ibn Abi Shaibah mentioned, surprisingly:

إذَا أَسْلَمَ أَحَدُ الزَّوْجَيْنِ. وَتَخَلَّفَ الْآخَرُ حَتَّى انْقَضَتْ عِدَّةُ الْمَرْأَةِ، انْفَسَخَ النِّكَاحُ فِي قَوْلِ عَامَّةِ الْعُلَمَاءِ. قَالَ ابْنُ عَبْدِ الْبَرِّ: لَمْ يَخْتَلِفْ الْعُلَمَاءُ فِي هَذَا، إلَّا شَيْءٌ رُوِيَ عَنْ النَّخَعِيِّ، شَذَّ فِيهِ عَنْ جَمَاعَةِ الْعُلَمَاءِ، فَلَمْ يَتْبَعْهُ عَلَيْهِ أَحَدٌ، زَعَمَ أَنَّهَا تُرَدُّ إلَى زَوْجِهَا، وَإِنْ طَالَتْ الْمُدَّةُ

“If any of the two spouses accepts Islam and the other delays until the woman’s waiting period ends, the nikāḥ is nullified, according to the word of all scholars. Ibn Abdil-Barr said: The scholars did not differ in this, except something narrated from Ibrahim al-Nakha`ī, and he deviated from the scholars in this, and no one followed him in it, he claimed she is returned to her husband, even if the duration is lengthy.”

Beginning students of knowledge should note that al-Qurṭubī and ibn Abdil-Barr were like al-Ṭabarī–they would each sometimes use the word “ijmā`” to mean the vast majority, but not the ijmā` which is binding and may never be contradicted. Imam al-Nawawi is another scholar who has received some criticism over using the word ijmā` without clear guidelines. Ibn Ḥajr was the first was who realized that there was something amiss with all this—you can’t claim consensus when there isn’t a consensus, no matter how tempting—when he said (al-Fatḥ, 9/423):

وَلَمْ يَذْهَبْ أحد [أي بعد تكوين المذاهب] إِلَى جَوَاز تَقْرِير الْمَسْأَلَة تَحْتَ الْمُشْرِكِ إِذَا تَأَخَّرَ إِسْلَامُهُ عَنْ إِسْلَامِهَا حَتَّى انْقَضَتْ عِدَّتُهَا. وَمِمَّنْ نَقَلَ الْإِجْمَاعَ فِي ذَلِك بن عَبْدِ الْبَرِّ وَأَشَارَ إِلَى أَنَّ بَعْضَ أَهْلِ الظَّاهِرِ قَالَ بِجَوَازِهِ وَرَدِّهِ بِالْإِجْمَاعِ الْمَذْكُورِ. وَتُعُقِّبَ بِثُبُوتِ الْخِلَافِ فِيهِ قَدِيمًا وَهُوَ مَنْقُولٌ عَنْ عَليّ وَعَن إِبْرَاهِيم النَّخعِيّ أخرجه بن أَبِي شَيْبَةَ عَنْهُمَا بِطُرُقٍ قَوِيَّةٍ

“No jurist [after the 4 imams, until ibn Taymiyyah—CC] chose to allow the woman in question stay with her husband if he delayed accepting Islam until her waiting period ended. And from those who claimed this was a matter of consensus was ibn Abdil-Barr, and he pointed to some of the Ẓāhirī jurists that said it was allowed, yet refuting that by the evidence of consensus. However, he cannot use that evidence because the difference of opinion has been fixed since old, and it has been transmitted from `Ali and from Ibrahim al-Nakha’ī; ibn Abi Shaibah recorded from each with strong paths of narration.”

Returning to the issue of sexual intercourse in specific, some researchers stated that what hints at its lack of credit and even lack of existence as an opinion is the fact that no other scholars even refuted it. It is true the no scholar since the middle ages attempted to refute Ali’s opinion and the Kufi jurists who appeared to follow him. But that’s simply because it did not become mainstream. There’s no benefit in refuting something no one follows. Ibn Ḥazm mentioned it as a separate opinion but devoted his energy to blasting away at the three fiqh schools. As for ibnul-Qayyim, the only scholar who wrote about the issue in great detail, in Ahkam ahl-Dhimmah, Shaykh Qaraḍāwī said, “In spite of the fact that ibnul-Qayyim promised to debate all nine opinions he mentioned, and what each contain of strength and weakness, he did not fulfil his promise, and did not attend to all, but rather, paid attention primarily to the sixth opinion, which was his own and that of ibn Taymiyyah, as if he forgot about the other three.” Anyone who looks at the work itself will find al-Qaradawi’s observation to be painfully true. Plus we saw how ibn Abdil-Barr dismissed it, while acknowledging its existence.

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A final word, concluding our look at the issue from a purely transmitted manqūl perspective, before we look at related aspects of reason ma`qūl perspective…

Out of the many outstanding jurists and qualified codifiers of Islamic Law in the first three centuries after the Prophet’s hijrah, none of the four whose schools ultimately covered the Muslim world chose to allow such a married couple to stay together, or even allow the wife to choose, even though both ideas have an undisputed precedent. Those schools took hold where they spread and filled a much needed vacuum, but because of that, many otherwise qualified opinions were forgotten. From time to time in the following centuries, some jurists of remarkable caliber recognized that the opinions within the four schools may, in some instances, seem to be outside the spirit of Islam, or that, for the sake of ever-changing circumstances, we need to look closer at the issue and our full breadth of options. That need provoked them to return to the original narrations of the companions and their students, and be surprised at how the fiqh of the first generations was more lively and varied than the fiqh of the middle ages, narrow and close-minded. Ibn Ḥazm and ibn Taymiyyah are the foremost examples of those who proudly and with great effort gave precedence to a lot of the fiqh of the salaf, and then in the colonial era, some of the scholars of Yemen. But even in modern times, fatwa bodies like those referred to in the beginning are extremely hesitant to go beyond the opinions contained in the Four Sunni Schools, while admitting that the legal geniuses of ibn Ḥazm and ibn Taymiyyah and whoever was likewise inspired by them, are still examples worthy of pursuing. But like those individuals in their own times, were we to champion an opinion, even inherited from uber-qualified Sunni jurists and a rightly guided Caliphs like Umar and Ali whom we are commanded to follow, we would be rebuked or even declared heretical if we could not say it belonged to Abu Hanifa, Malik, al-Shāfi’ī, or Ahmad. A price to pay for the many great benefits that their schools have brought.

One of the few fatwa bodies that has chosen some fatāwā beyond the four schools is the Saudi Permanent Committee. But only after feeling comfortable by the support of ibn Taymiyyah and ibnul-Qayyim, or Muhammad ibn Abdil-Wahhaab. For example, their agreement with ibn Ḥazm and al-Hasan al-Baṣrī, that one who skipped prayers may never make them up, while the four schools unanimously agreed that all missed prayers must be made up. Admittedly, there is less risk choosing a non-conforming opinion in matters of worship than in transactions.

In contemporary times, many Western du`at are giving new life to a scholarly opinion concerning the ruling on music without provocative lyrics, while the Four Schools unanimously forbade music.

In both of those issues—making up prayers and listening to music—this author sides with the Four Imams and their schools and is convinced by their argument, but I do not declare astray anyone who differs based on scholarly precedent and can argue their case based on the principles of fiqh derivation and preference. And in the tradition of scholarship and academics, and from the examples of Abu Hanifa and al-Shāfi’ī, debate of these issues should be welcome, while all sides should be respected.