The Rights of the Orphans and the Protection of Their Property
The first Ayah stressed upon the care and concern for kinship in an absolute sense. Then came the general emphasis on the fulfillment of rights that issue forth from it. Now, the second Ayah carries the command to protect the properties of the orphans, as well as the prohibitions of any misappropriation therein because the guardian of an orphaned child is usually one of his relatives. Therefore, this too has a bearing on the fulfillment of the rights of kinship.
The word, “al-yatama” in the first sentence of Ayah 2 is the plural of al-yateem (the orphan). Literally, it means the lone or the unique. Therefore, a pearl that resides in its shell all alone is called Ad-Durr al-Yateem (the orphan-pearl).
When a child attains puberty he is no more referred to as yateem in the terminology of Islamic law as it has been clarified in a hadith which says, “Orphanhood ends with puberty”. [Mishkat, p. 284]
If orphaned children have property, either gifted to them or received by them through inheritance, then the responsibility of protecting this property as well as the orphan himself falls on the shoulders of the person who is the guardian of the orphan. It does not matter whether the guardian was appointed by the father of the orphan himself before his death or by the government. It is the guardian’s duty that he should certainly cover all costs incurred on the necessary maintenance of the orphan from what he owns, but he should not give what the orphan owns into his possession before he has reached the age of maturity because he, being an immature minor, may lost it somewhere.
So, the statement, ‘give the orphans their property’, in this Ayah, has been clarified a little later in ayah 5 where it has been said that the property of the orphans should be given to them after it is certain that they have become mature and do have the ability to distinguish between what is good for them and what is not.
Therefore, the meaning of ‘give the orphans their property’ in this ayah should be taken in the sense of protecting their property so that it could be given to them at its appropriate time. Furthermore, there is a clear hint in this sentence towards the extent to which the guardian of the orphan is responsible for his welfare. It is being said here that his responsibility is not limited to just that he himself refrains from eating up or squandering the property of the orphan, but it is also an integral part of his duties that he should do everything possible to protect, guard and conserve the property in the best of state, capable of being handed over to him when mature.
The second sentence prohibits the substitution of bad things for the good ones. There were people who would let the number of things owned by the orphan stay unaltered, but would take something good from there and substitute it with something bad they themselves had. For example, swapping a lean goat for a healthy one, a bad coin for a good one, and things like that. Since, this too is a breach of trust in respect of the property of the orphan, and in the event that someone driven by his naughty self comes up with the excuse that he has not ‘taken’ what belonged to the orphan, he has rather ‘exchanged’ it. So, the Qur’an has forbidden it explicitly.
Now, this forbiddance not only covers the substitution of one’s bad things for the orphan’s good things, but it also covers any attempt by the guardian to enter into any deal with some other person which results in a loss for the orphaned child.
The third sentence, “and do not eat up their property along with your own” obviously aims to forbid the eating up of the orphan’s property through impermissible method whether it is consumed from the jointly-held property of the guardian and the orphan, or that it is held separately and consumed from there.
But, the general practice is that the guardian would hold what belongs to the orphan with his own personal holdings, would himself consume out of there and let the orphan do the same. Since no separate accounting is involved here, even a religiously observing Muslim may fall into thinking that there was no sin in doing so. It was for this particular reason that the prohibition of consuming what belongs to the orphan by pooling it with one’s own was mentioned here and warning was given to either keep the property of the orphan absolutely separate and spend from it separately so that there remains no danger of any excess; or should one elect to have a joint-expense system then, the account maintained should be so clear that one can be sure of not having spent anything belonging to the orphan for his own personal needs.
The style of expression here gives a hint that those who misappropriate the property of orphans are generally the people who have properties of their own as well. So, it is by implication that such people have been reproached for stooping down to eat up the property of the orphans unlawfully while they have their own lawful belongings at hand – a shameful act indeed.
It must be noted that ayah 2 mentions the prohibition of “eating” is one of the major end-uses of what one possesses. But, in common usage, every act of using up consuming and exhausting is referred to as “eating up” whether this be by using or by eating.
The expression, “la ta’kulu” (do not eat up) in the Qur’an carries this very sense of the usage, included in which are all sorts of impermissible uses. Therefore, spending anything from the property of the orphan unlawfully by any means whatsoever is absolutely haraam.
The Ayah ends with the admonition, “it is surely, a great sin”. Here, the word “hub” as explained by Ibn Abbas comes from the Ethiopean language. It means “major sin”. It is used in Arabic for the same meaning. The sense is that any unlawful appropriation or use of the orphan’s property, be it because of lack of supervision or substitution of something bad for something good or because of consuming the orphan’s assets are mixed up with one’s own, is a great sin after all.