It is in continuation of the commands relating to marriage which have been appearing earlier that the text not takes up the option of marriage with bondwomen who qualify as such under the stipulations of the Shariah of Islam. Then, the command of Hadd punishment concerning them has been added along since the status of a bondman and bondwoman is different from a free man and a free woman.
The word طَوْلاً taul in the Qur’anic text signifies power, capability and means. The sense of the ayah is that one who does not have the capability or means to marry free Muslim women, can marry Muslim bondwomen. This clearly indicates that one should, as far as possible, marry only a free woman and simply not marry a bondwoman. But, should it be that one has to marry a bondwoman, he should look for a Muslim bondwoman.
This is the very juristic position of Imam Abu Hanifah according to whom marrying a bondwoman, specially a bondwoman from the people of the Book (Jews or Christians) while having the power and means to marry a free woman, is makruh (not desirable).
According to Imam Shafa’i and other Imams, marrying a bondwoman while having the power and means to marry a free woman is unlawful, and marrying a bondwoman from the people of the Book is absolutely impermissible.
In short, to avoid marrying a bondwoman is, under all conditions, certainly better for a free man. However, if one has to do so under personal lack of choice, marrying a Muslim bondwoman is better. The reason is that the offspring from a bondwoman becomes automatically bonded to the owner of the bondwoman. Furthermore, there remains the danger that the offspring from the non-Muslim bondwoman could adopt a religion other than Islam following the example of the mother. So, in order to rescue the children from bondage and to ensure that they remain Muslims, it is necessary that the mother of the children should be free. If she is a bondwoman, let her, at the least, be necessarily a Muslim, so that the faith of the child remains secure for future flowering. For this reason, respected scholars have said that marrying a free woman from the people of the Book is, no doubt, correct, but, staying away from doing so is better; and in a time like this, its importance is much too obvious to be emphasized as Jewish and Christian women usually marry Muslim men to influence the husband himself, and his children, into adopting their religion.
The text then says: وَاللَّهُ أَعْلَمُ بِإِيمَـنِكُمْ بَعْضُكُمْ مِّن بَعْضٍ It means that Allah is fully aware of your faith, that is, emaan or faith is the criterion of precedence. It is very likely that a bondman or bondwoman may be far ahead of free men and women on the scale of faith. Therefore, the option of marriage with a Muslim bondwoman should not be taken as absolutely contemptible. Instead the fact that she has faith in Islam should be appreciated. The expression بَعْضُكُمْ مِّن بَعْضٍ appearing at the end, translated here as ‘you are similar to each other’, means that human beings, free or in bondage, all come from one species the children of Adam and all were born of only one soul. That one is better than the other depends on emaan and taqwa.
According to al-Tafseer al-Mazhari, these two sentence are there for people to get familiarized with and become acceptance-prone to marriage with bondwomen and get rid of any attitude of contempt for such marriage.
فَانكِحُوهُنَّ بِإِذْنِ أَهْلِهِنَّ وَءَاتُوهُنَّ أُجُورَهُنَّ بِالْمَعْرُوفِ So marry them with the permission of their masters and give them their dues: It means that, should they refuse to give permission, the marriage of the bondwoman will not be correct because the bondwoman does not possess the control over her person. The same rule governs the bondman as he too cannot marry without the permission of his master.
Then it was said that one who marries a bondwoman should pay her mahr promptly honestly and gracefully that is without hedging and delaying, and making sure that the payment is made in full, and that no trouble is caused to the bondwoman in this matter just because she happens to be a bondwoman. The juristic position taken by Imam Malik in this connection is that mahr is the right of the bondwoman. Other Imams say that the master of the bondwoman is the one who shall become the owner of what is received in payment of the dower of the bondwoman.
مُحْصَنَـت غَيْرَ مُسَـفِحَـتٍ وَلاَ مُتَّخِذَاتِ أَخْدَانٍ They being chaste, not committing immorality, or taking secret lovers: It means that marriage with Muslim bondwoman should be contracted while they are observers of chastity being neither musafihat, that is, open fornicators, nor keepers of clandestine paramours. It may be noted that the text, though refers to the seeking of chaste bondwomen for marriage at this place, yet it is also much better to stay away from marrying a fornicating free women as well.
Since this ayah has declared that if one cannot afford to marry a free woman, the second option for him is to marry a bondwoman. This also proves that mut’ah is not permissible, because, had mut’ah been permissible, a person who could not afford to marry a free woman could have gone for the easiest alternate by doing mut’ah as it would have gratified his sexual desire and, in addition to that, the relative financial burden of this deal would have been much less than that of a regular marriage.
Furthermore, the Qur’anic words مُحْصَنَـت غَيْرَ مُسَـفِحَـتٍ identify the trait of the bondwomen – an observer of chastity while being bound in marriage and no fornication. Now, as far as mut’ah is concerned, it is all safh nothing but spillage and rank whoredom. One woman gets used by several men in short spans of time. The offspring, if it comes, cannot be credibly ascribed to anyone. There goes the benefit of procreation.
فَإِذَآ أُحْصِنَّ فَإِنْ أَتَيْنَ بِفَـحِشَةٍ فَعَلَيْهِنَّ نِصْفُ مَا عَلَى الْمُحْصَنَـتِ مِنَ الْعَذَابِ It means that after the bondwomen have been bound in marriage and their observance of chastity has been given a safe cover, if they commit zina, an act of shame, they shall be liable to half of the punishment prescribed for the free women.
This refers to unmarried free women. If unmarried free man and woman happen to commit zina, the punishment is one hundred lashes, which appears in Surah an-Nur Ayah 2. As for the married man and woman committing zina, the punishment is rajm which is death by stoning. Since this particular punishment cannot be reduced to half, all four Imams agree on the position that the punishment of zina committd by a bondman or bondwoman, married or unmarried is fifty lashes. The command relating to the bondwomen has been mentioned in the present ayah, but the question of the bondman too becomes clear from the obvious analogy of the text.
ذَلِكَ لِمَنْ خَشِىَ الْعَنَتَ مِنْكُمْ It means that the permission to marry a bondwoman is for a person who apprehends that he might fall into the sin of fornication.
وَأَن تَصْبِرُواْ خَيْرٌ لَّكُمْ And that you be patient is better for you; that is, if a person, despite the apprehension of falling into zina, exercises restraint and keeps himself morally pure rising above the pull of his sexual desire, then, this state of being is better than that one marries bondwomen.
وَاللَّهُ غَفُورٌ رَّحِيمٌ And Allah is Most-Forgiving, Very-Merciful: It means that, no doubt, marrying bondwomen is makruh (not desirable) yet, should one go onto do something in this line, Allah subhanahu wa ta’ala will still forgive him. Then, He is Very-Merciful too, because He allowed marriage with bondwomen and did not make it totally prohibited.
Bondmen and bondwomen mentioned in the explanation of the present ayah represent the Shar’i bondmen and bondwomen. Men and women from among the disbelievers who were taken prisoners during Jihad were given to the Mujahidin as part of the distribution of spoils by the Amir al-Mumineen of Muslims. These prisoners became the bondmen and bondwomen. Their offspring too remained in bondage (with the exception of some cases which appear in due details in books of Fiqh). Today, Muslims have forsaken taking up Jihad in the manner prescribed by the Shariah of Islam, ignored the demands of their Jihad have entrusted the options of peace and war in the hands of the enemies of their religion and have themselves become chained to principles and policies which have nothing to do with the Shariah of Islam.
Since that point of time Muslims departed from the pivot, they ended up by being deprived of what was known as a bondman and bondwoman.
Common domestic servants in our own time are not bondmen and bondwomen because they are free.
In some parts of the world, children are sold out or enslaved. This is absolutely and totally haraam. They do not become bondmen and bondwomen by doing that.
(Taken from Maaruf-ul-Qur’an by Mufti Muhammad Shafi Usmani)