Chapter 1 - Introduction ⤵
الفصل الأول في المقدمات:
(النكاح مستحب مؤكد) لمن يمكنه فعله، ولا يخاف بتركه الوقوع في محرم، وإلا وجب. قال الله تعالي: “فانكحوا ما طاب لكم من النساء”. وأنكحوا اليامى منكم والصالحين من عليه السلام: “من تزوج والقمر في العقرب لم ير الحسنى”، والتزويج حقيقة في العقدعبادكم وإمائكم إن يكونوا فقراء يغنهم الله من فضله والله واسع عليم”. وأقل مراتب الأمر الاستحباب، وقال صلى الله عليه وآله وسلم: “من رغب عن سنتي فليس مني، وإن من سنتي النكاح”.
Book of Marriage (Al-Nikāḥ)
In it are multiple chapters – Chapter One: Regarding its Preliminaries
(Marriage is highly recommended) for one who is able to do so and while he does not fear falling into sin by abstaining from him, in which case it is obligatory. Allah has said: [4:3] “then marry [other] women that you like” and [24:32] “Marry off those who are single among you and the upright among your male slaves and your female slaves. If they are poor, Allah will enrich them out of His grace, and Allah is all-bounteous, all-knowing.” The least that is signified by the command tenses – in the verses – is recommendation. The Prophet (p) has said: “He who distances himself away from my practice, then he is not from me, and from my practice is the marriage.”
(وفضله مشهور) بين المسلمين (محقق) في شرعهم (حتى أن المتزوج يحرز نصف دينه) رواه في الكافي بإسناده إلى النبي صلى الله عليه وآله وسلم قال: “من تزوج أحرز نصف دينه، فليتق الله في النصف الآخر”، أو “الباقي” (وروي ثلثا دينه، وهو من أعظم الفوائد بعد الإسلام) فقد روي عن النبي صلى الله عليه وآله بطريق أهل البيت عليهم السلام أنه قال: “ما استفاد امرء مسلم فائدة بعد الإسلام أفضل من زوجة مسلمة تسره إذا نظر إليها، وتطيعه إذا أمرها، وتحفظه إذا غاب عنها في نفسها وماله”، وقال صلى الله عليه وآله: “قال الله عز وجل: إذا أردت أن أجمع للمسلم خير الدنيا، وخير الآخرة جعلت له قلبا خاشعا، ولسانا ذاكرا، وجسدا على البلاء صابرا، وزوجة مؤمنة تسره إذا نظر إليها، وتحفظه إذا غاب عنها في نفسها وماله”.
(Its merits are famous) amongst the Muslims (and established) in their law (to the extent that a married person safeguards half of their religion) as it has been narrated in al-Kāfī with his chain to the Messenger (p) who said: “Whoever marries, safeguards half of their religion, so they must fear Allah in the other half – or in the remainder,” (and two-thirds of their religion has also been reported. This is from the greatest benefits, after Islam) as it has been reported from the Messenger (p) through the transmission of the Ahl al-Bayt (a) that he (p) said: “A Muslim man does not benefit from anything after Islam more than a Muslim wife, who makes him happy when he looks at her, who obeys him when he commands her and who protects him with regards to himself and his wealth when he is away from her,” and he (p) has said: “Allah (azwj) has said: Whenever I decide to reconcile the best of the world and the best of the hereafter for a Muslim, I grant him a humble heart, a tongue that remembers, a body that is patient over calamity and a believing wife who makes him happy when he looks at her and protects him and his wealth when he is away from her.”
(وليتخير البكر) قال النبي صلى الله عليه وآله: “تزوجوا الابكار فإنهن أطيب شيء أفواها، وأنشفه أرحاما، وأدر شيء أخلافا، وافتح شيء أرحاما” (العفيفة) عن الزنا (الولود) أي ما من شأنها ذلك، بأن لا تكون يائسة، ولا صغيرة، ولا عقيما، قال صلى الله عليه وآله وسلم: ” تزوجوا بكرا ولودا، ولا تزوجوا حسناء جميلة عاقرا، فإني أباهي بكم الأمم يوم القيامة حتى بالسقط، يظل محبنطئا على باب الجنة فيقول الله عز وجل: أدخل الجنة. فيقول: لا حتى يدخل أبواي قبلي: فيقول الله تبارك وتعالي لملك من الملائكة: إئتني بأبويه فيأمر بهما إلى الجنة. فيقول: هذا بفضل رحمتي لك (الكريمة الأصل) بأن يكون أبواها صالحين مؤمنين. قال صلى الله عليه وآله: انكحوا الاكفاء وانكحوا فيهم واختاروا لنطفكم (ولا يقتصر على الجمال والثروة) من دون مراعاة الأصل، والعفة. قال صلى الله عليه وآله وسلم: ” إياكم وخضراء الدمن” قيل: يارسول الله: وما خضراء الدمن؟ قال: ” المراة الحسناء في منبت السوء ” وعن أبي عبد الله عليه السلام ” إذا تزوج الرجل المرأة لجمالها، أو لمالها وكل إلى ذلك، وإذا تزوجها لدينها رزقه الله المال والجمال”.
(A man should choose a virgin) the Messenger (p) has said: “Marry the virgins, because their mouths are the purest, their wombs are driest, their breasts produce the most milk and their wombs are the most open,” (pure) from fornication (fertile) meaning she should not have reached menopause, neither be underage and neither sterile. The Messenger (p) has said: “Marry the virgins and fertile ones, and do not marry the beautiful women are barren. This is because the Muslim nation is important for me even if a fetus is lost, because they will be remain standing at the gate of heaven unsatisfied and Allah will say: Enter heaven. And he will say: No, until my parents enter before me. Then Allah will say to one of the angels: Bring his parents, and He orders them two to enter heaven.” (of noble birth) as her parents should be righteous believers. The Messenger (p) has said: “Marry off those who are compatible and marry from them and select for your children from them.” (Do not suffice with beauty and wealth) without considering her nobility and chastity. The Messenger (p) has said: “Beware of going after Khaḍrā and Daman. It was said: O Messenger of Allah, what is Khaḍrā and Daman? He replied: A beautiful woman who grew up in a bad place,” and from Abī ‘Abdillah (a): “If a man married a woman for her beauty, or for her wealth, he will be given just that. However, if he marries her for her religion, Allah will grant him the wealth and the beauty.”
(ويستحب) لمن أراد التزويج قبل تعيين المرأة (صلاة – ركعتين والاستخارة) وهو أن يطلب من الله تعالي الخيرة له في ذلك، (والدعاء بعدهما بالخيرة) بقوله: ” أللهم إني أريد أن أتزوج فقدر لي من النساء أعفهن فرجا، وأحفظهن لي في نفسها ومالي، وأوسعهن رزقا، وأعظمهن بركة، وقدر لي ولدا طيبا تجعله خلفا صالحا في حياتي، وبعد موتي”، أو غيره من الدعاء، (وركعتي الحاجة) لأنها من مهام الحوائج، (والدعاء) بعدهما بالمأثور، أو بما سنح، (والاشهاد) على العقد، (والاعلان) إذا كان دائما، (والخطبة) بضم الخاء (أمام العقد) للتأسي، وأقلها الحمد لله، (وايقاعه ليلا) قال الرضا عليه السلام : ” من السنة التزويج بالليل، لأن الله جعل الليل سكنا، والنساء إنما هن سكن”. (وليجتنب إيقاعه والقمر في) برج (العقرب) لقول الصادقعليه السلام: ” من تزوج والقمر في العقرب لم ير الحسنى”، والتزويج حقيقة في العقد
(and it is recommended) for one who decides to marry, before selecting a woman, (to perform a prayer of two units and do an Istikhārah) and that is for a person to seek goodness for himself in that matter from Allah, (and a supplication after the two units for it to be the best choice) which is as follows: “O Allah, I wish to marry, so place in my fate from women one who is the most chaste of them, most protective of them with regards to me and my wealth, who is the most expansive of them in sustenance and greatest of them in blessing. Place in my fate a pure son making him a pious successor in my life and after my death,”1 or other supplications, (and two units of prayers of need [al-Ḥājāt]) because this is from the greatest of needs, (and a supplication) after the two units as they have been transmitted2 or with anything that occurs in the mind, (and [it is recommended] to have witnesses) over the contract (and to announce it) if it is a permanent marriage, (and a sermon [al-Khutbah]) with a ḍammah on the Khā’ (after the recitation of the contract) out of imitation [of the sunnah], the minimum of which would be to say ‘all praise belongs to Allah’. ([and it is recommended] to perform it at night) al-Riḍā (a) has said: “From the sunnah is to get married (tazwīj) at night, because Allah has made the night a source of tranquility, and women are also a tranquility,”3 (and avoid performing it while the moon is in) the phase of (scorpion) because of al-Ṣādiq’s (a) statement: “Whoever marries while the moon is in the scorpion phase, he will not see any good,” and the word tazwīj [as employed in the tradition] is being used in its literal meaning to refer to the marriage contract.
(فإذا أراد الدخول) بالزوجة (صلى ركعتين) قبله (ودعا) بعدهما بعد أن يمجد الله سبحانه، ويصلي على النبي صلى الله عليه وآله بقوله: ” اللهم ارزقني إلفها وودها ورضاها، وأرضني بها، واجمع بيننا بأحسن اجتماع، وأنس وائتلاف، فإنك تحب الحلال وتكره الحرام ” أو غيره من الدعاء (وتفعل المرأة كذلك) فتصلي ركعتين بعد الطهارة وتدعو الله تعالي بمعنى ما دعا (وليكن) الدخول (ليلا) كالعقد، قال الصادق عليه السلام: زفوا نساءكم ليلا، وأطعموا ضحى (ويضع يده على ناصيتها) وهي ما بين نزعتيها من مقدم رأسها عند دخولها عليه، وليقل: ” أللهم على كتابك تزوجتها، وفي أمانتك أخذتها، وبكلماتك استحللت فرجها، فإن قضيت في رحمها شيئا فاجعله مسلما سويا، ولا تجعله شرك شيطان ” (ويسمي) الله تعالي (عند الجماع دائما) عند الدخول بها، وبعده، ليتباعد عنه الشيطان ويسلم من شركه. (ويسأل الله الولد الذكر السوي الصالح) قال عبد الرحمان بن كثير: ” كنت عند أبي عبد الله عليه السلام فذكر شرك الشيطان فعظمه حتى أفزعني، فقلت جعلت فداك فما المخرج من ذلك؟ فقال: إذا أردت الجماع فقل. بسم الله الرحمن الرحيم الذي لا إله إلا هو بديع السموات والأرض، أللهم إن قضيت مني في هذه الليلة خليفة فلا تجعل للشيطان فيه شركا ولا نصيبا ولا حظا، واجعله مؤمنا مخلصا صفيا من الشيطان ورجزه جل ثناؤك ” (وليولم) عند الزفاف (يوما، أو يومين) تأسيا بالنبي صلى الله عليه وآله فقد أولم على جملة من نسائه، وقال صلى الله عليه وآله: ” إن من سنن المرسلين الاطعام عند التزويج ” وقال صلى الله عليه وآله: ” الوليمة أول يوم حق، والثاني معروف، وما زاد رياء وسمعة”. (ويدعو المؤمنين) إليها، وأفضلهم الفقراء، ويكره أن يكونوا كلهم أغنياء ولا بأس بالشركة، (ويستحب) لهم (الاجابة) استحبابا مؤكدا، ومن كان صائما ندبا فالأفضل له الافطار، خصوصا إذا شق بصاحب الدعوة صيامه.
(If a man decides to have intercourse) with his wife (he should recite two units) before it4 (and supplicate) after the two units praising Allah and send his salutations upon the Prophet and his family, saying “O Allah, grant me her friendship, love and satisfaction and make me satisfied with her, and unite us with the best of unions, affinity and partnership, because you surely love that which is permissible and detest that which is prohibited,” or any other supplication (and a woman should do so likewise) by performing two units of prayers after ritually purifying herself and supplicating to Allah with that which he supplicated for.5 (It should take place) i.e. intercourse (at night) like the marriage contract. Al-Ṣādiq (a) has said: “Engage in intercourse with your women at night, and feed [the guests] by forenoon,” (and the man should place his hand on her forehead) and that is the area between her temples on the front of the head, at the time of intercourse, and he should say, “O Allah, I married her based on the instructions of your book, and took her under your protection, and her private part has become permissible through your words, so if you have decreed anything in her womb, then let it be an upright Muslim and not a partner for Satan.” (and he should mention) Allah (during intercourse continuously) when entering into her and afterwards, so that Satan stays away from him and that he remains protected from becoming his associate. (He should ask Allah for a son who is healthy and righteous) ‘Abd al-Raḥmān b. Kathīr has said: “I was with Abī ‘Abdillah (a) and the topic of becoming an associate of Satan was raised and he (a) made such a big deal out of it that it scared me. So I said, ‘May I be sacrificed upon you, what is one’s escape from that?’ so he (a) replied, ‘When you wish to engage in intercourse, then say: In the name of Allah the most Beneficent the most Merciful, there is no God except Him, the creator of the skies and the earth. O Allah, if on this night you have decreed from me a successor, then do not grant a partner for Satan in it and neither any share nor any fortune. Make him a pious believer, purified from Satan and his impurity – your praise is glorified.” (and give the marriage banquet) after the wedding night (for one day, or two days) imitating the Prophet (p) who gave the banquet for some of his wives and he (p) said: “From the practices of the messengers is to feed [guests] at the time of marriage,” and he (p) said: “The marriage banquet of the first day is correct, the second day is preferred, and anything beyond that is ostentation and seeking fame”6 (and invite the believers) to the banquet, the needy ones being a priority. It is detested for all the guests to be wealthy, though there is no issue with them attending. (It is recommended) for them (to accept) as it is highly recommended, and if one is doing a supererogatory fast then it is better for them to break it, especially if him fasting causes harm to the host.
(ويجوز أكل نثار العرس وأخذه بشاهد الحال) أي مع شهادة الحال بالأذن في أخذه، لأ أن الحال يشهد بأخذه دائما. وعلى تقدير أخذه به فهل يملك بالأخذ، أو هو مجرد إباحة، قولان أجودهما الثاني. وتظهر الفائدة في جواز الرجوع فيه ما دامت عينه باقية.
(It is permissible to eat the edibles thrown out at the wedding and to take them given the situational context) meaning, when the situational context indicates that there is permission to take it, not that the situational context (at weddings) always indicates permissibility for taking it.7 Given the presumption that one takes them, then do they own the edible by taking it or is it mere permissibility [of using someone else’s property]8 – there are two verdicts, the better of them is the second view. The benefit of this discrepancy becomes apparent in the ruling permitting [the owner] to take back the item as long as some of it is physically remaining.
(ويكره الجماع) مطلقا (عند الزوال) إلا يوم الخميس، فقد روي أن الشيطان لا يقرب الولد الذي يتولد حينئذ حتى يشيب (وبعد الغروب حتى يذهب الشفق) الأحمر ومثله ما بين طلوع الفجر إلى طلوع الشمس، لوروده معه في الخبر، (وعاريا) للنهي عنه، رواه الصدوق عن أبي عبد الله عليه السلام، (وعقيب الاحتلام قبل الغسل، أو الوضوء) قال صلى الله عليه وآله وسلم: ” يكره أن يغشي الرجل المرأة وقد احتلم حتى يغتسل من احتلامه الذي رأى، فإن فعل ذلك وخرج الولد مجنونا فلا يلومن إلا نفسه.”، ولا تكره معاودة الجماع بغير غسل للأصل. (والجماع عند ناظر إليه) بحيث لا يرى العورة، قال النبي صلى الله عليه وآله: ” والذي نفسي بيده لو أن رجلا غشى امرأته وفي البيت مستيقظ يراهما ويسمع كلامهما ونفسهما ما أفلح أبدا، إن كان غلاما كان زانيا، وإن كانت جارية كانت زانية “، وعن الصادق عليه السلام قال: لا يجامع الرجل امرأته، ولا جاريته وفي البيت صبي، فإن ذلك مما يورث الزنا “. وهل يعتبر كونه مميزا وجه، يشعر به الخبر الأول، وأما الثاني فمطلق. (والنظر إلى الفرج حال الجماع) وغيره، وحال الجماع أشد كراهة، والي باطن الفرج أقوى شدة، وحرمه بعض الأصحاب، وقد روي أنه يورث العمى في الولد. (والجماع مستقبل القبلة ومستدبرها) للنهي عنه (والكلام) من كل منهما (عند التقاء الختانين إلا بذكر الله تعالي) قال الصادق عليه السلام: ” اتقوا الكلام عند ملتقى الختانين فإنه يورث الخرس ” ومن الرجل آكد ” ففي وصية النبي صلى الله عليه وآله يا علي لا تتكلم عند الجماع كثيرا، فإنه إن قضي بينكما ولد لا يؤمن أن يكون أخرس (وليلة الخسوف، ويوم الكسوف، وعند هبوب الريح الصفراء، أو السوداء، أو الزلزلة) فعن الباقر عليه السلام أنه قال: ” والذي بعث محمدا صلى الله عليه وآله وسلم بالنبوة، واختصه بالرسالة، واصطفاه بالكرامة، لا يجامع أحد منكم في وقت من هذه الأوقات فيرزق ذرية فيرى فيها قرة عين ” (وأول ليلة من كل شهر إلا شهر رمضان، ونصفه) عطف على أول، لا على المستثنى، ففي الوصية ” يا علي لا تجامع امرأتك في أول الشهر، ووسطه، وآخره، فإن الجنون والجذام والخبل يسرع إليها، والي ولدها “. وعن الصادق عليه السلام ” يكره للرجل أن يجامع في أول ليلة من الشهر وفي وسطه وفي آخره، فإنه من فعل ذلك خرج الولد مجنونا، ألا ترى، أن المجنون أكثر ما يصرع في أول الشهر، ووسطه، وآخره، وروى الصدوق عن علي عليه السلام أنه قال: يستحب للرجل أن يأتي أهله أول ليلة من شهر رمضان لقوله عز وجل: ” أحل لكم ليلة الصيام الرفث إلى نسائكم” (وفي السفر مع عدم الماء) للنهي عنه عن الكاظم عليه السلام مستثنيا منه خوفه على نفسه.
(Intercourse is disliked) absolutely (at the time of noon) except on Thursday as it has been narrated that Satan does not come close to a child conceived at that time till he grows old (and after sunset until the glow disappears) which is red, and likewise, it is disliked to engage in intercourse between the dawn of Fajr and sunrise, due to it being mentioned in a tradition (and [completely] naked) because it has been prohibited in a tradition that al-Ṣadūq narrates from Abī ‘Abdillah (a) (and after a wet-dream before having performed the ritual shower, or wuḍū)9 the Prophet (p) has said: “It is disliked for a man to engage in intercourse with a woman while he has had a wet-dream, until he has performed the ritual shower for the dream that he saw. If he engages in it and an insane boy is born from it, then he should not blame anyone except himself.” It is not disliked to have intercourse again without a ritual shower because of the principle [absence of evidence], (and [it is disliked to have intercourse] when someone can see it) such that they cannot see the private organ, the Prophet (p) has said: “By Him in whose hands my life is in, if a man engages in intercourse with a woman while there is someone awake in the house who can see both of them and can hear their words and their breaths, the man will never succeed, and if the child happens to be a boy then he will be a fornicator and if the child happens to be a girl then she will be a fornicatoress.” From al-Ṣādiq (a) who said: “A man should not engage in intercourse with his wife, nor his slave, while there is a child in the house, as that is from the things which result in fornication.” Does the child have to be someone who can differentiate, there is a justification for it, as the first report alludes to, however the second tradition is absolute in its nature. ([It is disliked] to look towards the vagina during sex) and otherwise, but during intercourse, it is greatly detested, and the reprehensibility of looking inside the vagina is even greater, while some of the jurists deemed it prohibited and it has been narrated that it results in blindness in the child.10 (and to have intercourse facing the Qiblah or with your back towards it) due to the prohibition against it (and to speak) from both of them (at the time when the two private parts are in contact, except in the remembrance of Allah). Al-Ṣādiq (a) has said: “Refrain from speech during the contact of the private parts, as it results in the child being mute.” It is more detested for a man to speak, and in the will of the Prophet (p) it states: “O ‘Alī (a), do not speak a lot at the time of sex, for if a child is decreed between you two then there is no guarantee for it to not be mute.” ([It is disliked] during a lunar or solar eclipse, at the time of red or dark winds, or at the time of an earthquake). Al-Bāqir (a) has said: “By the one who sent forth Muḥammad (p) with prophethood and chose him to deliver the message and preferred him with nobility, no one of you should have intercourse during one of these times, so that a child is given to you in whose eyes solace can be seen.” (and the first night of every month except the month of Ramaḍān and the middle of it) the phrase “middle of it” is connected to the first part of the verdict, not the exception to it. In a will [of the Prophet] it says: “O ‘Alī, do not engage in intercourse with your wife on the first of the month and its middle and its last [night], as insanity, leprosy and mental incapacitation will approach her quickly and her child,” and from al-Ṣādiq (a): “It is disliked for a man to engage in intercourse on the first night of a month and its middle and its last [night]. Anyone who does so, then the child will be born insane. Do you not see that an insane person exhibits his insanity more on the first, middle and last of the month?” Al-Ṣadūq narrates from ‘Alī (a) who said: “It is liked for a man to approach his partner on the first night of the month of Ramaḍān because of what Allah (azwj) has said: [2:187] You are permitted, on the night of the fast, to go into your wives.” (and during a journey when there is no water) because of a prohibition against it in a tradition from al-Kādhim (a), except for someone who fears falling into sin.11
(ويجوز النظر إلى وجه المرأة يريد نكاحها) وإن لم يستأذنها، بل يستحب له النظر ليرتفع عنه الغرر، فإنه مستام يأخذ بأغلى ثمن كما ورد في الخبر (ويختص الجواز بالوجه والكفين): ظاهرهما وباطنهما إلى الزندين، (وينظرها قائمة وماشية)، وكذا يجوز للمرأة نظره كذلك (وروي عبد الله بن الفضل مرسلا عن الصادق عليه السلام: (جواز النظر إلى شعرها، ومحاسنها) وهي مواضع الزينة إذا لم يكن متلذذا، وهي مردودة بالإرسال، وغيره. ويشترط العلم بصلاحيتها للتزويج بخلوها من البعل، والعدة، والتحريم وتجويز إجابتها، ومباشرة المريد بنفسه فلا يجوز الاستنابة فيه وإن كان أعمى، وأن لا يكون بريبة، ولا تلذذ، وشرط بعضهم أن يستفيد بالنظر فائدة، فلو كان عالما بحالها قبله لم يصح. وهو حسن، لكن النص مطلق، وأن يكون الباعث على النظر إرادة التزويج، دون العكس. وليس بجيد، لأن المعتبر قصد التزويج قبل النظر كيف كان الباعث.
(It is permitted to look at the face of a woman who one wishes to marry) even if he does not seek her permission, rather it is recommended for him to look at her so that there is no possibility of deception and this is because he is [like] a haggler who is purchasing for a high price – as it has been reported in a tradition.12 (The permission is restricted to the face and the hands) the back and the inside of the hands until the wrists (and he can look at her while she is standing or walking) and likewise, it is permissible for a woman to look at him. (It has been reported) from ‘Abdullah b. al-Faḍl with a broken chain to al-Ṣādiq (it is permitted to look at her hair and maḥāsin) and they are the areas of beauty13 as long as it is not pleasurable. But, this tradition is rejected because of its broken chain and reasons besides it.14 A condition for the permissibility of looking is knowledge of the fact that she can get married such that she does not have a husband, is not in her waiting period and is not prohibited upon him and as well as that there is a possibility of her accepting [the proposal]. It is also a condition for him to look at her directly himself and representation on behalf of him is not allowed even if he [i.e. the proposer] is blind. Furthermore, there should not be any fear [of sin] nor pleasure. Some have conditioned the permissibility of looking to having a benefit, so if he is already aware of her state from before then it is not permissible for him [to look]. This is a good view, but the textual evidence is absolute. The condition that looking at her should be due to his decision to marry her, not vice-versa15 is not a good view, because what is a condition is the mere intention to marry before looking, whatever the cause may be.16
(ويجوز النظر إلى وجه الأمة) أي أمة الغير، (ويديها)، وكذا (الذمية)، وغيرها من الكفار بطريق أولى، (لا لشهوة) قيد فيهما (و) يجوز (أن ينظر الرجل إلى مثله) ما عدا العورتين (وإن كان) المنظور (شابا حسن الصورة، لا لريبة) وهو خوف الفتنة، (ولا تلذذ). وكذا تنظر المرأة إلى مثلها كذلك، (والنظر إلى جسد الزوجة باطنا وظاهرا)، وكذا أمته غير المزوجة والمعتدة، وبالعكس، ويكره إلى العورة فيهما، (والي المحارم) وهو من يحرم نكاحهن مؤبدا بنسب، أو رضاع، أو مصاهرة (خلا العورة) وهي هنا القبل والدبر. وقيل: تختص الإباحة بالمحاسن جميعا بين قوله تعالي: ” قل للمؤمنين يغضوا من أبصارهم”، وقوله تعالي: ” ولا يبدين زينتهن إلا لبعولتهن” إلى آخره.
(It is permissible to look at the face of a female slave) meaning a slave of another person (and her hands) and as well as (a protected female) and other than her from the disbelievers due to superiority17 (not with lust) is a condition in both cases (and) it is permissible (for a man to look at the same gender) except the two private parts (even if) the person being viewed (is a young boy with a good looking face, without fear) and that is the fear of falling into corruption (and without pleasure). A woman can look at the same gender likewise. ([And it is permissible] to look at the body of the wife that which is hidden and that which is apparent), and likewise one’s slave who is not married or is in her waiting period, and vice-versa,18 although looking at the private part is disliked in both cases (and towards the blood-relatives) and those are individuals with whom it is prohibited to get married either forever due to kinship, or through foster relationship or through marriage ties (except the private part) and in this case it refers to both the vagina and the anus. And it has been said that the permissibility of looking is specific areas of beauty, after reconciling between His words: [24:30] “Tell the faithful men to cast down their looks” and [24:31] “and not display their charms except to their husbands” till the end of the verse.
(ولا ينظر الرجل إلى) المرأة (الأجنبية) وهي غير المحرم، والزوجة، والأمة (إلا مرة) واحدة (من غير معاودة) في الوقت الواحد عرفا، (إلا لضرورة كالمعاملة، والشهادة) عليها إذا دعي إليها أو لتحقيق الوطء في الزنا وإن لم يدع، (والعلاج) من الطبيب، وشبهه، (وكذا يحرم على المرأة أن تنظر إلى الأجنبي، أو تسمع صوته إلا لضرورة) كالمعاملة، والطب (وإن كان) الرجل (أعمى)، لتناول النهي له، ولقول النبي صلى الله عليه وآله لأم سلمة وميمونة لما أمرهما بالاحتجاب من ابن أم مكتوم، وقولهما إنه أعمى: ” أعمياوان أنتما ألستما تبصرانه “. (وفي جواز نظر المرأة إلى الخصيّ المملوك لها، أو بالعكس خلاف) منشأه ظاهر قوله تعالي: ” أو ما ملكت أيمانهن ” المتناول بعمومه لموضع النزاع. وما قيل من اختصاصه بالاماء جمعا بينه، وبين الأمر بغض البصر، وحفظ الفرج مطلقا، ولا يرد دخولهن في نسائهن، لاختصاصهن بالمسلمات، وعموم ملك اليمين للكافرات ولا يخفى أن هذا كله خلاف ظاهر الية من غير وجه للتخصيص ظاهرا.
(And a man is not allowed to look towards) a woman (who is a stranger) and that is someone who is not his blood-relative, or his wife, or his slave (except one) time (without repetition) at one specific moment as deemed in custom (except out of necessity like in the case of a transaction or for a testimony) against her if he is called towards her or to investigate whether penetration took place in the case of fornication even if he was not called to do so, (and for treatment) by a doctor and its like. (Likewise it is impermissible upon a woman to look towards a strange man,19 or to listen to his voice except out of necessity)20 like in transaction or for treatment (even if he) the man (is blind) because of the general prohibition for it, and because of the statement of the Prophet (p) to Umm Salamah and Maymūnah21 when he commanded them two to cover up from the son of Ibn Maktūm and they responded he is blind, he said, “Are you two blind as well? Do you not see him instead?”. (And whether it is permissible for a woman to look at her castrated slave or vice-versa, there is a difference of opinion) rooted in His apparent words [24:31] “or their slave girls” whose general meaning is inclusive of the discussion at hand. As for that which is said regarding it being restricted to just the female slaves, then it is by reconciling between this verse and the verse commanding one to lower the gaze and to protect the private parts absolutely. The view that the female slaves are included in [24:31] “their women” is also not valid as the verse concerns the Muslim women whereas the general usage of slaves is inclusive of disbelieving women. Although it should not remain hidden that all of this22 is against the prima-facie of the verse and there is no justification to restrict it.
(ويجوز استمتاع الزوج بما شاء من الزوجة، إلا القبل في الحيض، والنفاس) وهو موضع وفاق إلا من شاذ من الاصحاب حيث حرم النظر إلى الفرج والاخبار ناطقة بالجواز، وكذا القول في الامة. (والوطء في دبرها مكروه كراهة مغلظة) من غير تحريم على اشهر القولين والروايتين، وظاهر آية الحرث (وفي رواية) سدير عن الصادق (ع) (يحرم)، لانه روي عن النبي صلى الله عليه وآله أنه قال: ” محاش النساء على امتي حرام ” وهو مع سلامة سنده محمول على شدة الكراهة، جمعا بينه، وبين صحيحة ابن ابي يعفور الدالة على الجواز صريحا. والمحاش جمع محشة وهو الدبر ويقال ايضا بالسين المهملة كنى بالمحاش عن الادبار، كما كني بالحشوش عن مواضع الغائط، فان اصلها الحش بفتح الحاء المهملة وهو الكنيف واصله البستان، لانهم كانوا كثيرا ما يتغوطون في البساتين، كذا في نهاية ابن الاثير.
(And it is permissible for the husband to derive pleasure however he wants from the wife, except through the vagina during menstruation23 and postpartum bleeding) and this is an agreed upon view except by one of the jurists who held a rare view prohibiting looking at the vagina,24 though the traditions are expressive of permissibility. The same rule applies to a female slave. (And anal penetration is disliked and detested) however not prohibited according to the more popular opinion due to two traditions and the apparent meaning of the verse of al-Ḥarth,25 (and in a tradition) of Sadīr from al-Ṣādiq (a) (it has been prohibited) because it narrates from the Prophet (p) who said, “Maḥāsh of the women are prohibited upon my nation” and assuming that its chain happens to be sound, it will be predicated upon severe detestability, in order to reconcile between it and the authentic tradition of Ibn Abī Ya’fūr which explicitly indicates permissibility. And Maḥāsh is a plural for Maḥashsha and that is the anus and the word is also pronounced with a Sīn without dots.26 The word Maḥāsh is used to allude to anuses just like the word Ḥushūsh is used to allude to the part from where one excretes from, because its root-word is from al-Ḥashh with a Ḥā that has a Fatḥa and no dots, and that is a toilet, but originally it is a garden, since many of them would empty their bowels in the gardens, as has been mentioned in the work Nihāyah of Ibn Athīr.
(ولا يجوز العزل عن الحرة بغير شرط) ذلك في حال العقد، لمنافاته لحكمة النكاح وهي الاستيلاد فيكون منافيا لغرض الشارع. والاشهر الكراهة، لصحيحة محمد بن مسلم عن احدهما (عليهما السلام) أنه سأله عن العزل فقال: ” أما الامة فلا بأس، وأما الحرة فإني اكره ذلك، إلا أن يشترط عليها حين يتزوجه “. والكراهة ظاهرة في المرجوح الذي لايمنع من النقيض، بل حقيقة فيه فلا تصلح حجة للمنع من حيث اطلاقها على التحريم في بعض مواردها، فان ذلك على وجه المجاز، وعلى تقدير الحقيقة فاشتراكها يمنع من دلالة التحريم فيرجع إلى اصل الاباحة.
(And it is not permitted to perform coitus interruptus with a free woman without condition) this is in the case of a marriage contract, because of its inconsistency with the wisdom of marriage and that is procreation, hence coitus interruptus is inconsistent with the objective of the Legislator.27 However, the more popular view is that it is disliked, due to an authentic tradition of Muḥammad b. Muslim from one of them (a) when he asked him about coitus interruptus and he (a) replied: “As for with a slave, then there is no issue, but as for a free woman, then I detest it, unless he makes it a condition at the time he married her.” The prime-facie of detestability is that [abstaining from pulling out] is preferred such that its opposite is not prohibited,28 rather, this is its literal meaning. So therefore, its prohibition is not binding, citing the fact that it has been used in the meaning of prohibition in some other instances. The latter has to be understood metaphorically. On the presumption that it is also a literal meaning, then its homonymity prevents its signification on prohibition and the matter is referred back to the principle of permissibility.29
وحيث يحكم بالتحريم (فيجب دية النطفة لها) اي للمراة خاصة (عشرة دنانير)، ولو كرهناه فهي على الاستحباب، واحترز بالحرة عن الامة فلا يحرم العزل عنها اجماعا وان كانت زوجته. ويشترط في الحرة الدوام فلا تحريم في المتعة، وعدم الاذن فلو اذنت انتفى ايضا، وكذا يكره لها العزل بدون اذنه، وهل يحرم لو قلنا به فيه مقتضى الدليل الاول ذلك، والاخبار خالية عنه. ومثله القول في دية النطفة له.
From the perspective that it happens to be prohibited (then it is obligatory to pay the blood-money for the sperm) specifically to the woman (of ten Dīnārs) and if we had deemed it a detested act, then it is to be done as a recommendation. [The author] mentions a free woman in order to differentiate from a slave woman, as it is not prohibited to perform coitus interruptus with her, unanimously, even if she is his wife. As for the free woman, she must be permanent, and coitus interruptus is not prohibited in a temporary marriage, and there should be an absence of her permission, or else if she grants permission then its prohibition is nullified. Likewise, it is disliked for her to pull out without his permission. However, is it prohibited if that is the view we held? That is what the first evidence suggests, although the narrations are absent of this issue. The same is said in the case of giving her the blood-money for the sperm.
(ولا يجوز ترك وطء الزوجة اكثر من اربعة اشهر)، والمعتبر في الوجوب مسماه، وهو الموجب للغسل، ولا يشترط الانزال، ولا يكفي الدبر، (و) كذا (لا يجوز) الدخول (قبل) اكمالها (تسع) سنين هلالية (فتحرم عليه مؤبدا لو افضاها) بالوطء بأن صير مسلك البول والحيض واحدا، أو مسلك الحيض والغائط. وهل تخرج بذلك من حبالته؟ قولان اظهرهما العدم. وعلى القولين يجب الانفاق عليها حتى يموت احدهما، وعلى ما اخترناه يحرم عليه اختها والخامسة، وهل يحرم عليه وطؤها في الدبر والاستمتاع بغير الوطء وجهان اجودهما ذلك.
(It is not permissible to abandon sexual intercourse with the wife for more than four months) and what suffices as obligatory is an act that can be called as such, and that is anything that results in performing the ritual ablution. Furthermore, ejaculation is not a condition and anal sex is not sufficient (and) likewise (it is not permissible) to penetrate (before) she completes (nine) lunar years.30 (She will become impermissible upon him forever if he tears her) through intercourse, such that the urethra and vagina become one, or the vagina and anus.31 However, does she cease being his spouse as well? There are two verdicts, the more apparent of them is no. In the case of both verdicts, it is obligatory upon the man to cover her expenses until one of them dies. Based on the view we have chosen, her sister and a fifth wife also become impermissible. However, does anal sex or deriving sexual pleasure from her through means other than intercourse also become impermissible – then there are justifications for both views, but the better view is that it does [become impermissible].
ويجوز له طلاقها، ولا تسقط به النفقة وان كان بائنا. ولو تزوجت بغيره ففي سقوطها وجهان، فان طلقها الثاني بائنا عادت، وكذا لوتعذر انفاقه عليها لغيبة، او فقر مع احتمال وجوبها على المفضي مطلقا لاطلاق النص، ولا فرق في الحكم بين الدائم والمتمتع بها. وهل يثبت الحكم في الاجنبية قولان اقربهما ذلك في التحريم المؤبد دون النفقة. وفي الامة الوجهان واولى بالتحريم، ويقوى الاشكال في الانفاق لو اعتقها. ولو افضى الزوجة بعد التسع ففي تحريمها وجهان اجودهما العدم، واولى بالعدم افضاء الاجنبي كذلك. وفي تعدي الحكم إلى الافضاء بغير الوطء وجهان اجودهما العدم وقوفا فيما خالف الاصل على مورد النص، وان وجبت الدية في الجميع.
And it is allowed for him to divorce her, but her expenses will not drop even if it is an irrevocable divorce. If she marries someone else then whether the expenses are dropped, there are justifications for both opinions. If the second husband gives her an irrevocable divorce, then the [obligation of covering her expenses] returns. Likewise, if [the second husband] is unable to cover her expenses because he is missing or due to poverty. Although it is possible that the obligation of covering the expenses on the man who injured her remains absolutely because of the absolute nature of the textual evidence, and there is no difference in ruling whether the marriage is permanent or temporary. Is the ruling established in the case of a strange woman, then there are two opinions, the more closer is that she becomes prohibited forever, but without the need to cover expenses. Regarding the case of a female slave, there are justifications for both opinions, and prohibition is more due to superiority. If a man frees her, then the critique on whether her expenses need to be paid by him is stronger. If he damages the wife after nine years, then whether she becomes prohibited or not, there are justifications for both views the better one of them being no. The absence of prohibition for a strange woman who was damaged is more superior. Whether the ruling expands to damage done through non-penetration, then there are two justifications, the better view is no, because on it going against the principle32 in the case of textual evidence, even though it is obligatory to pay blood-money in all cases.
(ويكره للمسافر أن يطرق اهله) اي يدخل اليهم من سفره (ليلا) وقيده بعضهم بعدم اعلامهم بالحال، وإلا لم يكره، والنص مطلق: روى عبدالله بن سنان عن الصادق (ع) أنه قال: ” يكره للرجل اذا قدم من سفره أن يطرق اهله ليلا حتى يصبح “. وفي تعلق الحكم بمجموع الليل، او اختصاصه بما بعد المبيت وغلق الابواب نظر، منشأه، دلالة كلام اهل اللغة على الامرين. ففي ” الصحاح “: اتانا فلان طروقا اذا جاء بليل. وهو شامل لجميعه. وفي نهاية ابن الاثير ” قيل: اصل الطروق من الطرق وهو الدق وسمي الآتي بالليل طارقا لاحتياجه إلى دق الباب ” وهو مشعر بالثاني ولعله اجود. والظاهر عدم الفرق بين كون الاهل زوجة، وغيرها عملا باطلاق اللفظ، وان كان الحكم فيها آكد، وهو بباب النكاخ انسب.
(It is disliked for a traveller to enter upon his family) meaning entering upon them from his journey (at night time) and some have conditioned the ruling to him not having announced his plans, in which case it is not disliked, although the textual evidence is absolute.33 ‘Abdullah b. Sinān narrates from al-Ṣādiq (a) who said, “It is disliked for a man who returns back from his journey to enter upon his family at night time until it is morning.” Whether the ruling concerns all of the night or if it is specific to just the time after one goes to bed and locks the doors, there is room for thought, rooted in the words of the linguistics that signify both meanings. In al-Ṣiḥāḥ it says, so and so came to us ṭurūqān when he comes at night, and that is inclusive of the whole night. In Nihāyah of Ibn Athīr it has been said, “the root of Ṭurūq is from Ṭarq and that is to knock, and someone who arrives at night time has been called a Ṭāriq because they need to knock on the door.” This seems to allude to the second possibility and perhaps that is a better stance. Apparently, there is no difference between the family member being the wife or someone else, acting upon the absolute nature of the word, even though the rule is emphasized more in her face, and that is appropriate with respects to the chapter of marriage.
Chapter 2 – Regarding the Contract ⤵
الفصل الثاني في العقد:
ويعتبر اشتماله على اليجاب والقبول اللفظيين كغيره من العقود اللازمة (فاليجاب زوجتك وأنكحتك ومتعتك لا غير) أما الأولان فموضع وفاق وقد ورد بهما القرآن في قوله تعالي: ” زوجناكها “. ” ولا تنكحوا ما نكح آباؤكم من النساء “. وأما الأخير فاكتفى به المصنف وجماعة لأنه من ألفاظ النكاح، لكونه حقيقة في المنقطع وإن توقف معه على الأجل، كما لو عبر بأحدهما فيه وميزه به، فأصل اللفظ صالح للنوعين، فيكون حقيقة في القدر المشترك بينهما، ويتميزان بذكر الأجل، وعدمه، ولحكم الأصحاب تبعا للرواية بأنه لو تزوج متعة ونسي ذكر الأجل انقلب دائما، وذلك فرع صلاحية الصيغة له.
وذهب الأكثر إلى المنع منه، لأنه حقيقة في المنقطع شرعا فيكون مجازا في الدائم، حذرا من الاشتراك، ولا يكفي ما يدل بالمجاز حذرا من عدم الانحصار والقول المحكي ممنوع، والرواية مردودة بما سيأتي وهذا أولى.
It is a condition that the contract is inclusive of an offering and an acceptance with words, just like the rest of the binding contracts.34 (The offering is with Zawwajtuka, Ankaḥtuka, Matta’tuka and nothing else) as for the first two then there is an agreement upon them and they have also been mentioned in the Qurān in His words [33:37] We married her to you (zawwajnākhā) and [4:22] And do not marry (la tankiḥū) those whom your fathers married. As for the last one, the author and a group of jurists have considered it sufficient because it is from the synonymous words indicating marriage, because it is used in the meaning of temporary marriage literally, even though a time has to be mentioned in that case. Just like if someone uses one of the first two statements [zawwjatuka and ankaḥtuka] and then differentiates it [by mentioning the time]. So the actual word can be rightfully used in both cases and thus its literal meaning is for what is shared between both instances of marriage, and they are differentiated by the mentioning of the time or the absence of its mention,35 and also due to the verdict of the jurists, based on a tradition, that if one marries someone temporarily but forgets to mention the time the contract turns into a permanent contract. This is a result of the formula being applied to it.36
But the majority of the jurists have gone towards the view that it is not allowed, because its legal veritative is in it being a temporary marriage and it is a metaphor when used in the meaning of a permanent marriage, out of precaution of being homonymous.37 What is signified metaphorically is not sufficient due to fear that there will be no limit to it, and the argument that was cited is also wrong and the tradition is also rejected as it will be explained later, and this is the better view.38
(والقبول، قبلت التزويج والنكاح، أو تزوجت، أو قبلت، مقتصرا عليه) من غير أن يذكر المفعول (كلاهما) أي اليجاب والقبول (بلفظ المضي) فلا يكفي قوله: أتزوجك بلفظ المستقبل منشيءا على الأقوى، وقوفا على موضع اليقين. وما روي من جواز مثله في المتعة ليس صريحا فيه، مع مخالفته للقواعد.
(The acceptance is with Qabiltu al-Tazwīj and al-Nikāḥ, or Tazawwajtu, or Qabiltu shortening it) without mentioning the object39 (Both of them) meaning the offering and acceptance (have to be in a past-tense) and it is not enough for one to say Atazawwajuka [I am marrying you] in future-tense as a creative statement, due to greater strength [for its evidence],40 because of what is known with certainty. As for that which is transmitted implying the permissibility of it in temporary marriage is not explicitly clear, besides it also being against other principles.
(ولا يشترط تقديم الايجاب) على القبول، لان العقد هو الايجاب والقبول. والترتيب كيف اتفق غير مخل بالمقصود. ويزيد النكاح على غيره من العقود. أن الايجاب من المرأة وهي تستحي غالبا من الابتداء به فاغتفر هنا، وان خولف في غيره، ومن ثم ادعى بعضهم الاجماع على جواز تقديم القبول هنا، مع احتمال، عدم الصحة كغيره، لان القبول إنما يكون للايجاب فمتى وجد قبله لم يكن قبولا. وحيث يتقدم يعتبر كونه بغير لفظ قبلت، كتزوجت ونكحت وهو حينئذ في معنى الايجاب.
(It is not a condition to say the offering) over the acceptance, because a contract is an offering and acceptance. Hence whichever order [in which it is said] is not a deterrent to what is intended. In addition, marriage has something extra in it, unlike other contracts. The offering is done by a woman and she generally is shy to initiate it, hence it is overlooked for her here, even though this is not allowed in other contracts. It is due to this that some have made the claim of consensus on the permissibility of saying the acceptance first, even though there is a possibility that it is not valid like the rest of the contracts, because an acceptance is only for an offering, so if [the acceptance] exists before [the offering] it is not considered an acceptance. If [the acceptance is said first] then it is a condition for it to be from words other than Qabiltu, like Tazawwajtu and Nakaḥtu, in which case they will be uttered in the meaning of an offering.
(و) كذا (لا) يشترط (القبول بلفظه) اي بلفظ الايجاب، بان يقول: زوجتك. فيقول: قبلت التزويج، أو انكحتك. فيقول: قبلت النكاح، (فلو قال: زوجتك فقال: قبلت النكاح صح)، لصراحة اللفظ، واشتراك الجميع في الدلالة على المعنى.
(And) likewise (it is not) a condition for (the acceptance to be with its words) meaning, with the same word used in theoffering such that she says Zawwajtuka and then he responds Qabiltu al-Tazwīj, or Ankāhtuka and he responds Qabiltu al-Nikāḥ. (If she says Zawwajtuka and he responds Qabiltu al-Nikāḥ, it is valid) due to the explicitness of the words and because all of them are similar in signifying the meaning.
(ولا يجوز) العقد إيجابا وقبولا (بغير العربية مع القدرة) عليها، لأن ذلك هو المعهود من صاحب الشرع كغيره من العقود اللازمة، بل أولى. وقيل: إن ذلك مستحب لا واجب، لأن غير العربية من اللغات من قبيل المترادف يصح أن يقوم مقامه، ولأن الغرض إيصال المعاني المقصودة إلى فهم المتعاقدين فيتأدى بأي لفظ اتفق، وهما ممنوعان.
واعتبر ثالث كونه بالعربية الصحيحة فلا ينعقد بالملحون، والمحرف مع القدرة على الصحيح، نظرا إلى الواقع من صاحب الشرع ولا ريب أنه أولى، ويسقط مع العجز عنه.
والمراد به ما يشمل المشقة الكثيرة في التعلم، أو فوات بعض الأغراض المقصودة، ولو عجز أحدهما أختص بالرخصة، ونطق القادر بالعربية بشرط أن يفهم كل منهما كلام الآخر ولو بمترجمين عدلين. وفي الاكتفاء بالواحد وجه، ولا يجب على العاجز التوكيل وإن قدر عليه، للأصل.
(والأخرس) يعقد إيجابا وقبولا (بالإشارة) المفهمة للمراد.
(And it is impermissible) to pronounce the offering and acceptance of the contract (in other than Arabic when one is capable) of it, because that is what has been ordained by the legislative authority, like is the case with the rest of the binding contracts, in fact, this is more superior.
It has been said: This is merely a recommendation, not obligatory because non-Arabic languages are similar to synonyms which can replace the Arabic words, and that the objective is to convey the intended meaning to both parties of the contract, and this is achieved by any word – but these two justifications are prohibited.
There is a third view which believes that it must be pronounced in correct Arabic, and that it does not become effective with mispronunciations or altered words when one is capable of correct pronouncement. This is due to the fact that the legislative authority has conveyed us the correct words in reality, and there is no doubt that this position is superior.
This ruling [of reciting the contract in Arabic] is dropped in the case of incapacity. What is meant by incapacity is extreme difficulty in learning [Arabic], or some of the goals of marriage are missed out on, then if either of the two parties are incapable, they are permitted [to recite in non-Arabic]. The party who is capable of reciting the contract in Arabic shall recite with the condition that both parties understand one another, even if requires two just translators. Having one just witness also a justification, and it is no obligatory upon the incapable party to delegate their pronouncement even if they are able to, due to the principle [of non-existence].
(A mute person) performs the offering and acceptance of the contract (with signs) that convey the party’s intended meaning.
Miscellaneous Issues ⤵
- This supplication is taken from a tradition recorded in al-Kāfī reported on the authority of Imām al-Bāqir (a).
- The two units of prayers of Ḥājāt and a supplication after it have not been transmitted specifically for marriage. Rather the tradition prescribing the prayers is doing so for any need a person may have. Perhaps this is also why al-Shahīd al-Thānī has mentioned in his commentary that marriage is from the greatest of needs, in order to justify the verdict as marriage is an appropriate instance where the prayers can be performed.
- The Arabic word tazwīj and tazawwuj in these traditions to mean marriage contract is not very apparent as claimed by al-Shahīd al-Thānī and the author. It is just as plausible for it to mean sexual intercourse, just as Qāḍī ibn Barrāj understood. A tradition that assists us in this view is recorded in Al-Kāfī (Vol. 5, Ch. 41, H # 3, Pg. 366-367) reported on the authority of Imām al-Ṣādiq (a) says: ‘O Muyassir, marry (tazawwij) during the night because Allah has made the night for comfort and do not seek for any of your other needs during the night, because the night is dark. He (the narrator) has said, that he (the Imām) then said, ‘This is because the Ṭāriq has a great right and the Ṣāḥib has a great right.’”
The command tense tazawwij in the above tradition is more apparent in sexual intercourse rather than a marriage contract, and this is understood through the connected alibi at the end of the tradition which refers to a Ṭāriq. There is much discussion on who is a Ṭāriq and who is a Ṣāḥib in this tradition. Ṭāriq is someone who returns back from a journey at night and intends on having sexual intercourse with their legal partner (wife or slave). As such the tradition is implying that they have a great right and that they should not be rejected. As for the Ṣāḥib, it could be referring to the companion of the traveller, or most likely it could be referring to the legal partner. In either case, the tradition is apparent in encouraging intercourse at night time.
In another tradition from Al-Kāfī (Vol. 5, Ch. 41, H # 3, Pg. 366) reported on the authority of Imām al-Ṣādiq (a) says: “Engage in intercourse (zuffū) with your brides during the night and and feed [the guests] by forenoon,” the command tense from the word zifāf is another indicator that it is sexual intercourse that is preferable to engage in at night time, not necessarily the marriage contract itself. This tradition will also be cited by al-Shahīd al-Thānī in a ruling that follows which says it is recommended to engage in intercourse at night time.
In yet another tradition recorded in al-Khiṣāl (Vol. 1, Pg. 112) reported on the authority of Imām al-Bāqir (a) who quotes the Holy Prophet (p) saying, “One should not stay up at night except for three reasons: for the Qurān, for seeking knowledge, and for a bride that is being taken to her husband.”
- There are reports that indicate that two units of prayers should be performed when one wishes to get married, however, there appear to be no reports indicating it is also recommended to perform two units of prayers when one intends on engaging in intercourse. There is one report in Al-Kāfī (Vol. 5, Ch. 123, H # 1, Pg. 500) which mentions a two-unit prayer before to be performed before intercourse, but the tradition is in context of an old person. The tradition is as follows:
Abū Baṣīr says: “I heard a man saying to Abū Ja’far (a), ‘I pray to Allah to keep my soul in service for your cause, I am an aged man. I have married a virgin young woman. I have not gone to bed with her as yet and I am afraid that when she enters upon me and sees me, she will dislike me due to my old age and the dye on my beard.’ Abū Ja’far (a) replied, ‘When you are there ask her before approaching you to perform Wuḍū. You also should not approach her before performing Wuḍū and performing a two-unit prayer. Thereafter, glorify Allah and say, “Allahumma Ṣalli ‘Ala Muḥammad Wa Ālī Muḥammad.” Thereafter ask her and others present with her to say Ā’mīn after your supplications. Thereafter say, ‘O Lord, provide her enough reasons to be kind to me, love me, be happy with me, grant me enough reason to be happy with her, bring us together in the best form of gathering, and the happiest kindness; You love what is lawful and dislike unlawful matters.’ The Imam then said, ‘You must bear in mind that kindness comes from Allah and hate comes from Satan so that people clash and dislike what Allah has made lawful.’”
- The tradition of Abū Baṣīr narrating what the Imam said to the old man is also recorded in Tahdhīb al-Aḥkām (Vol. 7, Ch. 37, H #8, Pg. 409-410) and in it additional words are added to the manuscript where it says that the man should also ask his wife to perform two units of prayers. Therefore, the fact al-Shahīd al-Awwal and al-Shahīd al-Thānī in agreement with him are proposing the same ruling for the woman is most likely taken from this tradition. Nevertheless, as mentioned in the previous footnote, the tradition concerns a very specific scenario which involves an old man who is fearful of what his young wife will think of him at the time of sexual intercourse. The tradition does not imply a general recommendation for everyone wishing to engage in sexual intercourse to perform a two-unit prayer.
What however is present in numerous traditions is the recommendation to supplicate before engaging in sexual intercourse.
- There is a tradition in Al-Kāfī (Vol. 6, Ch. 34. H # 1, Pg. 281) which shows Imām al-Kāẓim giving a banquet for three days:
“Abū al-Ḥasan Mūsa (a) prepared a banquet for the ceremony of a certain one of his children and fed people Medīna with Fāludhajāt in large cooking pots for three days in the mosques and streets. Certain people of Medīna criticized him about it. The information reached the Imam and he said, ‘Everything that Allah, most Majestic, most Glorious, gave to any Prophet, He gave such things to Muhammad, O Allah, grant compensation to Muhammad and his family worthy of their services to Your cause, and more which He did not give to the Prophets. To Sulayman (a) He said, “This is our gift. You can give to others or keep it without being questioned.” He said to Muhammad, “What the messenger brings you must take and what he prohibits, you must stay away from it.”’
This act of the Imam is not against the Prophetic tradition which condemns the third day of a wedding banquet, because the banquet in the above tradition is most likely due to the birth of his child, not his marriage. Interestingly, a tradition in al-Maḥāsin of al-Barqī (d. 274 or 280) exists which indicates Imām al-Ṣādiq feeding people for three days as well on the birth of Imām al-Kādhim:
Minhāl Al-Qaṣṣāb says: ‘I departed Makkah to head towards Medina and passed by Abwā. Abu ‘Abdillah (a) was blessed with Musa (a), so I arrived in Medīna before him and he (a) arrived a day after me. He (a) fed the people for three days, and I ate alongside those who ate and then did not eat until the next day when I returned and ate again. This prevailed for three days, I ate until I would lean back on my elbows, then I would not eat anything until the next day.’
Both these traditions imply that the banquet given for three days for the birth of a child is other than a banquet given after marriage.
Of course, these reconciliations are only required if one takes the number of days as a relevant submissive factor in defining what is ostentation. If a non-submissive approach is taken to the number of days, one could even argue that the number of days required for people to deem giving out food as ostentation depends on the customs of a place and community. These could change from time to time and from one place to another, and therefore it is possible that three days of food given by Imām al-Ṣādiq or Imām al-Kādhim was not considered ostentation.
- During wedding ceremonies, the hosts or anyone else may throw out raisins, almonds and other types of edibles in celebration. The ruling is arguing that it is permissible for the guests to eat them and even take them back home with themselves if the situational context implies that there is permission to do so.
- This ruling concerns property ownership and whether the edibles that are picked up by the hosts become their property or not. As an example, when a host invites a guest over for lunch or dinner and offer them food, the guest does not become the owner or the food, rather they only have permission to consume it. The first verdict is justified by saying that when the host throws the edibles, they have essentially give up their ownership over the items and therefore the items become like many of the things found around the earth that are not the property of anyone, such as wood or grass and whoever picks them up becomes its owner.
The second verdict is justified by saying that the edibles thrown in the wedding ceremony already had an owner, unlike things like grass or wood found on earth, and the things by which a person becomes an owner of an item that previously had an owner are specified in law. Merely picking an item up from the ground that is owned by someone does not make the person who picks it up its owner. Therefore, the principle of continuity (al-istiṣḥāb) will be applied and the items will be treated as a property of the individual who threw it and only a permission to utilize and eat the edible has been granted by the owner.
The impact of this difference in verdict becomes apparent when if the edible is remaining physically. According to the first verdict, the host cannot take the edible back from the guest as the guest is now its owner. Whereas according to the second verdict, the host has the right to take back the edibles as long as they have not been fully consumed.
- There seems to be no textual evidence for adding wuḍū to this ruling. Al-Shaykh al-Ṭūṣī appears to be the earliest to suggest it and Qāḍī Ibn Barrāj, as well as Ibn Ḥamza, followed him. Otherwise, al-Shaykh al-Mufīd, al-Sallār al-Daylamī and ‘Allāmah al-Ḥillī only mention the ritual shower. The subsequent tradition quoted by al-Shahīd al-Thānī also only mentions a ritual shower and makes no mention of wuḍū.
- There are contradictory reports on this issue as a report in Nawādir al-Ḥikmah suggests it is not only appropriate to do so, but rather it is a source of pleasure. It is possible to reconcile the two traditions by saying that the detestability is only limited to looking inside the vagina and not simply looking at it.
- In which case it will become obligatory to engage in sexual intercourse, though since they did not have water, they will have to do tayammum in place of a ritual ablution in order to perform the Ṣalāt.
- The tradition being quoted is from Al-Kāfī (Vol. 5, Ch. 39, H #1, Pg. 365): Muḥammad b. Muslim says, “I once asked Abū Ja‘far (a) about the case of a man who wanted to marry a woman whether he could look at her. He (a) replied said, ‘Yes, he can do so because he is purchasing her for a high price.’”
- The word maḥāsin when used to refer to the body of a woman generally refers to places such as the neck, ears and feet, whereas when it is used to refer to the body of a man it generally refers to the beard.
- These other aspects are essentially the other traditions which appear to restrict the permission of looking only to the face and the hands, and since many jurists have also given a verdict restricting the permission to just the face and the hand, preference is given to this view.
It appears that al-Shahīd al-Thānī could have done a better attempt at justifying the ruling permitting looking at areas other than the face and the hand. This is because there are other traditions which do exist indicating such permissibility.
- That is to say, first a man wants to see the woman and then decide whether he wants to marry her or not.
- Al-Shahīd al-Thānī is arguing that what makes looking at a woman permissible is the mere intention to marry, regardless of whether the man has someone specific in mind or not. In which case, if for example, a friend were to come and inform a man about a potential wife, he would be allowed to look at her even if he did not yet have a specific intention to marry her.
- This ruling is arguing based on what is termed Qiyās al-Awla (analogy of the superior). This is a type of conjecture accepted and permitted by the Shī’ī Imāmī scholars of legal theory as they believe its basis to be rooted in the probative force of the prima-facie of an evidence. In this case given that it is permissible to look at a protected tax-paying woman, who were generally Christians of Jews, then it is only appropriate for it to be permissible to look at a woman who holds a lower position legally speaking, in this case a disbelieving woman who is unprotected.
- Meaning, the wife can look at her husband and a slave can look at her master.
- It appears this verdict is referring to looking while there is fear of falling into sin or with lustful intentions.
- This is one of the strangest verdicts in the work of al-Shahīd al-Awwal and Marḥūm Narāqī goes as far as to say this view must have only been held by the former as no other jurist seems to have ever held this position. It is also highly possible that it was simply an error by the author.
The only possible way to justify the ruling is if we say that the author considered it impermissible if there is fear of falling into sin or if she has lustful intentions. Otherwise, besides the absence of any textual evidence for the ruling, it also goes against what we historically know about the nature of the early Muslim societies where men played a dominating role and would have been overheard speaking at all times. It would have been near impossible for women to avoid listening to men if such a ruling were true. Not to mention the fact that we know for a fact that women would hear and listen to the Prophet (p).
- A similar tradition exists in Al-Kāfī (Vol. 5, Pg. 534) where the wives mentioned are ‘Āisha and Ḥafṣah.
- The second opinion which says the ruling is restricted to just the females.
- It should be mentioned that some of the classical scholars believed that even anal sex is prohibited during menstruation, even though some others and the majority of the later and contemporary jurists consider it permissible.
- Ibn Ḥamzah, a fifth to sixth century hijrī jurist held this opinion and as far as it is known, no other Imāmī Shī’ī jurist held this view. In his al-Wasīlah ila Nayl al-Faḍīlah (Pg. 314):
إذا جامع حرم عليه أشياء و كره له أشياء و استحب له أشياء. فالمحرم ثلاثة أشياء قراءة العزائم، والنظر إلى فرج المرأة حالة الجماع، والعزل إلا بإذن المرأة.
If a man engages in intercourse, a number of things become prohibited upon him, some are disliked, and some are recommended. That which is prohibited are three: reciting the chapters which have an obligatory prostration in them, looking at the vagina during intercourse, and pulling-out except with the permission of the woman.
- [2:223] Your women are a tillage for you
- These minor remarks are mentioned as a guideline for readers and scribes who would make copies of the manuscript. In order to avoid confusion between two similar letters, the author points out specifically that the letter is one with or without dots.
- Many classical jurists held this view, such as al-Shaykh al-Mufīd, al-Ḥalabī, Ibn Ḥamzah and Ibn Zuhrah. However, the prima-facie of many of the reports at hand generally indicate permissibility. What is rather interesting is that justification al-Shahīd al-Thānī provides for the opinion of al-Shahīd al-Awwal and that is resorting to the wisdom of marriage. Whether these jurists actually cited the wisdom of marriage to be in procreation as a justification for their view is not clear, but this is a rare case where such a deduction is even being resorted to. Determining the wisdom and objective behind an act is not sufficient in the eyes of traditional jurists as reason enough to argue for a ruling. This is because a wisdom does not necessarily constitute the complete cause of a ruling and there could be other reasons why any given law is the way it is. Furthermore, with regards to this specific case, one can argue that limiting the wisdom of marriage, or more precisely sexual intercourse, to procreation is not very clear.
- The opposite being pulling-out.
- If one presumes that the word Ikrāh was coined independently to literally mean prohibition and detestability and thus be an instance of a homonym, then its usage here would require evidence to determine what meaning is being used. In the case that no evidence exists for us to determine which meaning is being used, then we will refer back to a procedural principle that tells us to treat it as permissible.
- This ruling presumes that a guardian can marry off his daughter who happens to be under the age of nine to another male. There is debate and a difference of opinion on whether this marriage can be conducted if the guardian considers it to be in the daughter’s best interest or whether mere absence of any harm for her is sufficient, regardless of there being any benefit for her or not.
Additionally, the predominant view amongst the Shī’ī and as well as many non-Shī’ī jurists was that once such a marriage is conducted, the couple are now husband and wife, hence the husband can derive all forms of sexual pleasure from his wife, albeit a breastfeeding baby, except intercourse; be it touching, hugging or thighing. Over the past few decades, this ruling has been repeatedly cited by non-Muslims to condemn Islam as a religion and to argue for the immorality of their law.
The classical jurists have not expressed any opinion on this specific matter and most of their works simply stop at saying sexual intercourse with a wife under the age of nine is impermissible. It appears one of the earliest jurists to suggest the permissibility of sexual pleasures other than intercourse was al-Fāḍil al-Miqdād (d. 826 / 1423) in his al-Tanqīḥ al-Rā’i li-Mukhtaṣar al-Sharā’ī (vol. 3, pg. 26). Al-Shaykh Muḥammad al-Najafī (d. 1850) in his magnum opus Jawāhir al-Kalām (vol. 29, pg. 420) suggests the same.
In terms of scholars of the past and present century, some of the most influential Shī’ī jurisconsults have published this ruling in their readily available works. Publishing a complete list of scholars who held this view would be an immense task, however, just a few of these notable names are:
- Al-Sayyid Muḥammad Kāẓim al-Yazdī (d. 1919) in his al-‘Urwah al-Wuthqa (vol. 5, pg. 502)
- Al-Sayyid Muḥsin al-Ḥakīm (d. 1970) in his Mustamsak al-‘Urwah al-Wuthqa (vol. 14, pg. 80)
- Al-Imām al-Khomeynī (d. 1989) in his Taḥrīr al-Wasīlah (vol. 2, pg. 259)
- Al-Sayyid Mar’ashī al-Najafī (d. 1990) in his Minhāj al-Mu’minīn (vol. 2, pg. 208)
- Al-Sayyid al-Khūī (d. 1992) in his Kitāb al-Nikāḥ (vol. 1, pg. 155)
- Al-Sayyid ‘Abd al-A’la al-Sabzwārī (d. 1993) in his Muhadhdhab al-Aḥkām fī Bayān Ḥalāl wa al-Ḥarām (vol. 24, pg. 73)
- Al-Shaykh Muḥammad al-Fāḍil al-Lankarānī (d. 2007) in his Tafṣīl al-Sharī’ah – al-Nikāḥ (pg. 22)
- Al-Sayyid Muḥammad Ṣādiq al-Rūḥānī in his Fiqh al-Ṣādiq (vol. 21, pg. 88)
- Al-Shaykh Luṭfallah al-Ṣāfī in his Hidāyah al-‘Ibād (vol. 2, pg. 238)
- Al-Sayyid Muḥammad Taqī al-Modarresī in his Al-Wajīz fī Fiqh al-Islāmī – Aḥkām al-Ziwāj wa Fiqh al-Usra (pg. 147)
- Al-Sayyid al-Sīstānī in his Minhāj al-Ṣāliḥīn (pg. 10, issue #8)
As can be read in some of the aforementioned works, three proofs are used to argue for the permissibility of all types sexual pleasures, except intercourse, with an underage wife:
1) The principle of permissibility, which states anything for which there is no explicit law mentioned in the Qurān or traditions, it is to be considered permissible. In this case, there is no explicit law in the religious sources that say anything about deriving other forms of sexual pleasures from an underage wife.
2) The general narrations on marriage which indicate that a husband can derive sexual pleasure from his wife in any way he wants. These narrations are absolute in their nature, meaning they do not say that sexual pleasure is restricted to a wife above the age of nine. Sexual intercourse is simply one instance of sexual pleasure but has been made an exception because of other evidence.
3) There is a consensus by the jurists on this matter and the ruling is a popular one, with no one ever having said anything against it.
Some contemporary jurists have argued against this ruling. One of the earliest jurists to argue against the ruling was Al-Sayyid Muṣṭafa al-Khomeynī (d. 1977), who critiques his own father al-Imām al-Khomeynī in his Mustanad Taḥrīr al-Wasīlah (vol. 2, pg. 344). He argues that sexual pleasure deemed permissible through the marriage contract is restricted to what is socially considered acceptable. All abnormal acts are outside of the scope of such a contract and one will need additional evidence to argue for their permissibility.
Al-Shaykh Makārim al-Shīrāzī argues against this permissibility by critiquing the first two arguments, in his Al-‘Urwah al-Wuthqa Ma’ Ta’līqāt (vol. 2, pg. 772) and in Anwār al-Faqāha – Kitāb al-Nikāḥ (vol. 1, pg. 39). He argues that in contemporary times, humans perceive the severe immorality of deriving of sexual pleasure from underage children who are married. Therefore, the absolute nature of the traditions which speak of the permissibility of deriving sexual pleasure from an underage wife is restricted to those things which society considers morally acceptable.
If one were to accept Makārim al-Shīrāzī’s argument, they would be on a slippery slope since at that point one could also argue for the immorality of child marriage altogether as it is generally something not to their benefit. On the contrary, on most occasions, it is harmful to the child. Interestingly, Makārim al-Shīrāzī does believe that the age of marriage for females today should be around 13 years old (source) and this is also reflected in Iran’s Civil Code. A guardian wanting to get his daughter who is under the age of 13 married, would not only need to consider the best interest of the girl in the union but would also need the court to affirm that the marriage is to her benefit. Ironically, this is very similar to the laws of some of the states in America where there is no minimum age of marriage, and a parent can get their young child married with judicial consent.
Some other jurisconsults have approached the matter by simply pointing out that if such types of sexual pleasures result in harm for the child, then they are not allowed to engage in them. Al-Sayyid Shubeyrī al-Zanjānī in his Kitāb al-Nikāḥ (vol. 5. Pg. 499) argues as follows and in essence resorts to a secondary principle which states anything that causes harm should be abstained from.
In light of what al-Zanjānī writes, it appears that the general rule about deriving all forms of sexual pleasure present in the published works of the jurists should also be understood in the context of no harm being caused to the child. In other words, the jurists are not discussing secondary scenarios. Though the layman’s lack of expertise and precision in how a law is derived may not allow him or her to consider the ruling in any other way besides what they have an affinity with and that is to presume harm at all times and as such may elicit dicomfort. If those jurists were to be questioned whether deriving such sexual pleasures are still permissible given their harmful effects on the child, it seems far-fetched that they would deem it to be so.
- Al-Shaykh al-Ṭūsī in his al-Mabsūṭ does not seem to indicate whether she will become impermissible upon the husband forever.
- Of ‘adam (non-existence).
- It is highly likely that the textual evidence for this ruling are actually referring to engaging in sexual intercourse rather than simply entering into the house.
- In classical jurisprudence, the basic premise was that all binding contracts have a specific formula that has to be verbally pronounced unless there is evidence excluding a certain contract from that condition. For example, many jurists held the view that transactions – a type of contract – which involved buying or selling an item would not be considered valid unless a formula was verbally expressed by the parties indicating that one of them has sold an item and another one has purchased it.
After al-Shaykh al-Anṣārī (d. 1864), the common opinion amongst the jurists had altered and most contemporary jurists today hold the view that the basic premise in all binding contracts is that a formula is not required unless proven otherwise. These formless contracts are called synallagmatic contracts (Mu’āṭāt) and many jurists in their classes of advance jurisprudence arrive at the theoretical conclusion that marriage can also be conducted without the pronouncement of a formula. However, a majority of them have not yet issued this theoretical view as a legal edict in their published books that their followers are expected to follow, except a few of them, most notably Āyatullah Muḥammad al-Ṣādiqī al-Ṭihrānī (d. 2011). In his work Tabsirah al-Fuqahā’ (Vol. 1, Pg. 83) he writes:
Rather, nothing is required for the validity of Nikāḥ except a contract with whatever words that tend to clarify it. In fact, what needs to be clarified is the marriage contract itself and there is no evidence for the obligation of using words – let alone a specific formula – whenever possible. Using sign language, writing, or any other act that signifies a marriage, is like the words for a marriage formula, if that is how it is understood in local custom. In some local customs, what is a clear indication of marriage is if the groom places his shoe on the shoe of the bride, and that is their contract (‘aqd), while the absence of refusal from the bride implies her satisfaction, as long as there is no substantial possibility given for her lack of satisfaction. Else, the natural course of things conveys that her silence is her satisfaction, just like in the case when words are used.
Imām al-Khomeynī in his Kitāb al-Bay’ (1421 AH, vol. 1, pg. 267) illustrates one such theoretical scenario as follows:
So if a woman and man decide to get married, and the woman with her items goes to the house of the man and actualizes this intent (of marriage), and the man subsequently accepts her and gives her room in his house with the same intent, marriage through Mu’āṭāt has taken place and the laws of marriage such as permissibility of looking, intercourse, obligation of maintenance (nafaqah) will apply.
In one of his lessons on advance jurisprudence, Ayatullah Shubayrī Zanjānī cites Kitāb al-Nikāh (pg. 183) of al-Shaykh ‘Abdul Karīm al-Ḥā’irī (d. 1937) transcribed by al-Mīrzā Maḥmūd al-Āshtiyānī, who claimed that there were certain individuals contemporary to himself, who apparently believed that engaging in sexual intercourse with the intention of establishing a spousal relationship resulted in a valid marriage contract. While the names of these jurists remain a mystery, the scenario is an explicit instance of a Mu’āṭāti marriage.
- This is the first argument made by those jurists who say that using the verb tense matta’tuka is valid for a permanent marriage. Their argument is that the original verb was simply coined to mean deriving sexual pleasure and therefore when it is used in the instance of a permanent marriage or a temporary marriage, the use is considered literal and not metaphorical. In other words, its use is similar to using the verb tense zawwajtuka and ankaḥtuka for a temporary marriage contract.
To put it simply, the word human for example was coined for a certain meaning, but its application on both Bakr and Ali is a literal application of its meaning, not metaphorical.
- The second argument is based on a tradition which apparently indicates that if someone uses the phrase matta’tuka while intending to perform a temporary marriage, but forgets to mention the time, their contract will automatically turn into a permanent marriage contract. This tradition implies that it is perfectly suitable for one to use the verb for a permanent marriage contract.
- The word mut’ah is a legal veritative for temporary marriage and when it is used in the meaning of a permanent marriage, then one remains in a state of doubt whether it is being used literally in it or metaphorically. In this case of doubt, al-Shahīd al-Thānī says that we must presume it to be a metaphor so that we do not consider it a homonym.
The evidence of this goes back to a discussion in legal theory which says that when one is doubtful whether a word should be predicated as a metaphor or as a homonym, it is better to predicate it on a metaphor. This principle, like most other principles, is contested and arguments are put forth for both positions.
- Al-Shahīd al-Thānī is bringing three reasons for why the word matta’tuka cannot be used in a permanent marriage contract:
Firstly, he says that if we begin to allow metaphors to be used in such an important contract like that of marriage, then there would remain no limitations on the number of words one could possibly use to pronounce the formula. Any word can eventually be turned into a metaphor to indicate permanent marriage, while the jurists all agree that the words used to carry out this contract are limited and restricted.
Secondly, al-Shahīd al-Thānī does not agree with the opinion which said if one intended on getting temporarily married and used the word matta’tuka in the marriage formula, but forgot to mention the time, that their contract will turn into a permanent marriage contract.
Lastly, the tradition cited by the proponents of the first view is also rejected, although the reason for its rejection will be explained in the chapter of temporary marriage.
- The verbs being used to convey acceptance are all transitive verbs that require an object. For example, in the statement ‘I accept the marriage’ the word ‘marriage’ is an object for the transitive verb ‘I accept’. However, simply saying I accept is also enough.
- Unlike Ibn Abī ‘Aqīl who believed it was not an issue.