(In the light of Surah an-Nisa Ayaat 19 – 21)
Given in these three ayaat are steps taken to eliminate injustices to which women were commonly subjected.
The most glaring of these was that men used to act as owners of the life and property of women. After her husband’s death, a woman was passed on to his heirs. They were considered as the new owners and inheritors of the property, plus the wife. They could, if they wished to, marry her or give her in marriage to somebody else against payment. The son of the husband from another wife could himself marry her after the death of his father. When a living human being has been taken as an article of ownership, what would have happened to the normal property is all too obvious. This one basic social ill became the cause of hundreds of other unjust practices against women, some of which are pointed out below:
1.If a woman received some property in inheritance or some gift from her parents, the poor thing stayed deprived of it. Everything received in her name was devoured by men at her husband’s home.
2. If, somehow the woman did come in possession of her share of the property, men would prevent her from remarrying so that she could not take her share out of the house, they wanted her to die right there where she was, leaving her property which they could possess after her.
3. In some places there was the practice that if the husband did not like his wife because of whimsical factors and not because of any shortcoming of the wife, then, while he skipped relating to her as his wife, did not get rid of her by giving her a divorce. This was to harass her to the limit that she was forced to give him back the jewelry and dower money he had given her; or, if he had not yet given these as due, he expected that she would forgo her claim before she could hope to be released. There were situations when the husband, despite having divorced her would not let the divorced wife remarry so that she breaks up and returns to him the amount of dower he had given her, or forgoes the dower still unpaid.
4. On occasions, following the death of her husband, his heirs would not let the widow remarry. They would do so either to satisfy their false sense of prestige, or to let her go only after they get something for themselves in the deal.
As stated earlier, all these injustices were perpetrated on the basis of the central assumption that man owned not only the property but also the life of the woman. The Qur’an struck at the root of this evil which produced other injustices and openly declared يَـأَيُّهَا الَّذِينَ ءَامَنُواْ لاَ يَحِلُّ لَكُمْ أَن تَرِثُواْ النِّسَآءَ كَرْهاً “O you who believe! It is not lawful for you to inherit the women by force…”
The word “forcibly” does not appear here as a condition which would have given the impression that their becoming owners of women with the latter’s approval was all right, but this restriction has been introduced here as a statement of fact. It means that taking over the charge of the life and property of women as self-appointed owners without any legal or rational basis whatsoever could, obviously, be only “forcibly”. How could a woman, in her normal, ever agree to such a proposition? [al-Bahr, al-Muhit]. This is why the Shariah does not accept her approval in this matter as effective. if any woman, so out of her mind approves of being owned by somebody, the Islamic law is not willing to concede this position.
The common method of preventing injustice and disorder would be to use a prohibitive order, but the Qur’an has avoided this common method at this place and has expressed the element of prohibition by negating the lawfulness of this act by saying, لاَ يَحِلُّ لَكُمْ it is not lawful for you. Here, in addition to stressing upon the severe sinfulness of this matter, the purpose may also be to indicate that, should it be that someone does go on to marry an adult woman without her consent and permission, the marriage thus entered into shall not be lawful and in fact, it is null and void. Being totally non-sequitur, no husband-wife relationship between the man and woman gets established from such a marriage, nor do the commands of inheritance or lineage follow from it.
Similarly, if someone forces a woman and takes back the dower he had given her, or compels her to forgo the outstanding dower, this forced return or forgiveness is not valid in the sight of the Shariah. Money or property taken in this manner do not make them lawful for the man, nor does it cause any due right to be forgiven. This subject has been further clarified in كَرْهاً وَلاَ تَعْضُلُوهُنَّ لِتَذْهَبُواْ بِبَعْضِ مَآ ءَاتَيْتُمُوهُنَّ do not prevent women from marrying at their choice with the intention of taking back what you, or a relative, have already given them as dower or gift.
So, the giving and the taking back of dower is inclusive of the incidence of making the woman forgive the dower the payment of which is due, fixed and agreed upon. Whether one forces the woman to return the dower amount already paid or forces her to forgo the dower still outstanding, both are impermissible and patently haraam. Similarly, whatever has been given to the wife as gift or something of which she has become the owner, cannot be taken back by the husband, or the heirs, for it is not lawful for them to do so. However, this rule applies only to a situation where anything has been assigned to her as an owner. If something was given to her for a temporary use, like jewelry or any other article, not making her the owner of it, then, that simply does not enter into the ownership of the wife and therefore asking for their return is not forbidden.
The text after that by saying إِلاَّ أَن يَأْتِينَ بِفَاحِشَةٍ مُّبَيِّنَةٍ exempts some such situations under which it becomes permissible for the husband to take back what he has given, including the dower. It means that should the woman commit a shameful act compelling the husband to divorce her, then, this will be a situation in which it does not matter if the husband holds back the word of divorce until such time that the woman returns the dower he had given her or forgoes the outstanding dower, if that is the case.
According to Ibn Abbas radhiAllahu anhu, Aishah radhiAllahu anha and Dahhak and others, the word, fahisha (translated as a shameful act) here means disobedience to the husband and indecent abuses against him; while Abu Qilabah and Hasan al-Basree take it to mean immodesty and adultery in this particular place. Thus, the sense would come to be: If these women happen to commit some shameful act or they behave disobediently and vituperatively which forces the husband to think of a divorce, then, this being a fault of the woman, the husband has the right to hold her in the bond of marriage, until he receives back what he had given her, or has the outstanding dower forgiven by her.
The next two ayaat also enlarge upon this subject. Here it has been said that, should it be that the woman has just not shown any contumacy or immodesty, but the husband, following his own physical desire and pleasure, intends to marry another woman in her place, then again it will not be permissible for him to claim anything from her in exchange of divorce, even though he had given her a lot of wealth. Similarly, it will not be allowed for him to force her to forgo the dower due against him. This is because there is no fault of the woman and the cause which makes the dower due and payable has been vacated, that is, they have been married and have had their privacy with each other. Now, the husband no right to take back what he has given her or make her forgo the dower.
That the taking back of this amount is an injustice and sin has been later on described in three stages.
First, it was said that is, أَتَأْخُذُونَهُ بُهْتَـناً وَإِثْماً مُّبِيناً ‘do you want to take it through imputation and an open sin?’
This sentence refers back to the previous ayah (19) where it was laid down that the husband has no right to take back the dower from his wife except when she was committed a shameful act. On the basis of this principle the present ayah (20) says that if you take back the dower from your wife, it will mean that you are imputing her for a shameful act, because it is the only situation where your claim may be rightful. Since your wife has not committed a shameful act, your claim to the dower is a false imputation which is an open sin.
Secondly, in the following sentence in ayah 21 it has said, that is, how can you not take back what you had given her when not only the marriage has been solemnized, but you have also had access to each other in privacy? For, in this situation, whatever has been given, if against dower, the woman certainly deserved it. She now owns it because she surrendered herself to her husband. The idea that if could be returned is senseless. Even if this money or property given by the husband was presented or gifted, even then, it is not possible that it could be returned because what a husband and wife give to each other as gift cannot be taken back. Such claim of its returns is neither permissible in Shariah, nor is it legally enforced. So marital bond prevents the taking back of what has been given as gift.
The same subject has been stated in the last sentence of ayah 21 and they have taken a firm covenant from you. This covenant is the bond of marriage which is solemnly attested to with the name of Allah before a gathering of people following a khutbah.
To sum up, once this marital covenant has been made and mutual privacy has brought the couple close together, to force the woman to return what was given to her is open injustice and tyranny. All Muslims must abstain from it.
(Taken from Maarif-ul-Qur’an by Mufti Muhammad Shafi Usmani)