34. The word 'mother' applies to one's step-mother as well as to one's real mother. Hence the prohibition extends to both. This injunction also includes prohibition of the grandmother, both paternal and maternal. There is disagreement on whether a woman with whom a father has had an unlawful sexual relationship is prohibited to his son or not. There are some among the early authorities who do not believe in such prohibition. But there are others who go so far as to say that a woman whom a father has touched with sexual desire becomes prohibited to the son. Likewise, there is disagreement among the scholars of the early period of Islam in regard to a woman with whom a person has had an illegitimate sexual relationship whether she is prohibited to his father or not. In the same way there has been disagreement in regard to a man with whom a mother or daughter has had an illegitimate sexual relationship, whether or not marriage with him is prohibited for both the mother and daughter. (See Jassas, vol. 2, pp. 113 ff., and Bidayat al-Mujtahid, vol. 2, pp. 33 f. - Ed.) There is a great deal of formal, legal discussion on this point. But even a little reflection makes it evident that if a man marries a woman who is at once the object of the desire of either his father or his son, and if a man marries a woman and is attracted to either her mother or daughter, this militates against the requirements of a righteous society. The spirit of the Law is opposed to the legal hair-splitting which makes a distinction between sexual relations that take place either within the marital framework or outside it, and between either touching or looking with desire and so on. The plain fact is that if the sexual passions of both the father and the son are focused on the same woman, or conversely, if the sexual passions of both the mother and daughter are focused on the same man, this situation is full of evil and mischief for family life and the Law can never tolerate it. The Prophet (peace be on him) has said: 'Whoever looks at the genitals of a woman, both the mother and daughter of that woman become prohibited for him.' In another tradition, the Prophet (peace-be on him) said: 'God will not even care to look at the person who casts his look at the genitals of a woman as well as those of her daughter.' (Jassas, Ahkam al-Qur'an, vol. IV, p. 141.) These traditions bring out the intent of the Law very clearly.
35. The injunction with regard to daughters applies to grand-daughters on both the paternal and maternal sides as well. There is disagreement, however, whether a daughter born of an illegitimate relationship becomes prohibited or not. According to Abu Hanifah, Malik and Ahmad b. Hanbal such a daughter is prohibited in the same way as a daughter born in wedlock; Shafi'i, however, is of the opinion that such daughters are not prohibited. The very idea, however, of marrying a girl who was born of one's own semen would be repulsive to any decent person.
36. This applies to full sisters as well as to half-sisters.
37. In all these relationships, no distinction is made between the full and step-relationships. The sister of a man's father or mother, whether full sister or step-sister, is prohibited to him. Likewise, the daughters of a man's brothers and sisters are prohibited just as if they were one's own daughters. (See Bidayat al-Mujtahid, vol. 2, pp. 31 ff. - Ed.)
38. There is consensus among Muslims that if a boy or girl is breast-fed
by a woman, that woman attains the status of mother, and her husband the status
of father. It is forbidden to marry relatives through milk where the degree
of relationship is such as /to constitute a bar to marriage in the case of blood-relations.
The basis of this rule is the saying of the Prophet (peace be on him): 'Whatever
is rendered prohibited by descent (nasab) is likewise rendered prohibited by
breast-feeding.' (Bukhari, 'Shahadat', 4, 7,13,14; Muslim, 'Rida'ah', 1-14,26-30;
etc. - Ed.) According to Abu Hanifah and Malik prohibition is established if
a child suckles milk from a woman's breast equal to that minimum quantity which
nullifies fasting. But according to Ahmad b. Hanbal, it is established by three
sucklings; and according to Shafi'i by five. There is also disagreement about
the maximum age up to which breast-feeding leads to prohibition of marriage
with the woman concerned. In this connection, jurists have expressed the following
(1) Suckling is of legal significance only when it occurs before a child has been weaned, and when milk is its main source of nourishment. If a child suckles from a woman's breast after having been weaned, this is legally no different from drinking anything else. This is the opinion of Umm Salamah and Ibn 'Abbas, and a tradition to this effect has also been reported from 'Ali. This is also the view of al-Zuhri, Hasan al-Basri, Qatadah, 'Ikrimah and Awza'i.
(2) Prohibition is established by breast-feeding during the first two years of a child's life. This is the view of 'Umar, Ibn Mas'ud, Abu Hurayrah and 'Abd Allah b. 'Umar. Among jurists, Shafi'i, Ahmad b. Hanbal, Abu Yusuf, Muhammad b. al-Hasan al-Shaybani and Sufyan al-Thawri followed this view; and according to a report, so did Abu Hanifah. Malik largely followed this view, but he was of the opinion that if breast-feeding took place a month or two after the age of two, the prohibition would still remain in effect.
(3) The generally-reported opinion of Abu Hanifah and Zufar is that a bar to marriage is created by breast-feeding up to an age limit of two and a half years.
(4) Some other jurists are of the opinion that the prohibition comes into effect irrespective of the age when breast-feeding takes place. This opinion is based on the view that the effective cause of the prohibition is a woman's milk, rather than the age of the person fed. Hence, even in the case of an older person, the same prohibition would apply as in the case of an infant. This is the view of 'A'ishah and this has been supported on the basis of a tradition from 'Ali, which is presumably .authentic. Among the jurists this opinion has been followed by 'Urwah b. al-Zubayr, 'Ata', Layth b. Sa'd and Ibn Hazm. (On this subject see Jassas, vol. 2, pp. 124 ff.; and Ibn Rushd, Biddyat al-Mujtahid, vol. 2,'pp'. 35 ff. -Ed.)
39. There is disagreement about prohibition in respect of the mother of the woman with whom one has merely contracted marriage (without having consummated it). Abu Hanifah, Malik, Ahmad b. Hanbal and Shafi'i believe that such a relationship is prohibited. 'Ali, however, holds the opinion that unless the marriage has been consummated the mother of one's wife does not become prohibited.
40. The prohibitive restriction in regard to such girls is not based on the consideration of their having been brought up in the house of a step-father. The reference to the child's upbringing in his house points to the delicacy of this relationship. The jurists are almost unanimous that it is prohibited to marry one's step-daughter irrespective of whether or not she has been raised in the step-father's house.
41. This restriction has been added because the widow of one's adopted son is, according to Islam, not prohibited. It is only the wife of one's own son who is prohibited. Likewise, the wives of grandsons (paternal and maternal) are prohibited to grandfathers (on both the mother's and father's side).
42. The Prophet (peace be on him) has taught that it is prohibited for a man to combine in marriage an aunt - whether maternal or paternal - with her niece. The guiding principle is that it is prohibited to have as wives two women who, if one were male, would be prohibited to each other. (See Bidayat al-Mujtahid, vol. 2, p. 41 - Ed.)
43. This is an assurance that God would not call them to task for such misdeeds of the Jahiliyah period as combining two sisters in matrimony, provided they abstained from doing so in the future. See also( n. 32 above.) For this reason a man with two sisters as his wives is required to divorce one of them when he embraces Islam.
44. Women who come as captives of war, leaving their husbands behind in Dar
al-Harb (Domain of War), are not prohibited, for their marriage is nullified
by virtue of their entry into Dar al-Islam (Domain of Islam). A man may marry
such women and, if they happen to be his slave-girls, he may have sexual relations
with them. There is disagreement, however, among jurists as to what should be
done if both husband and wife have been taken captive together. Abu Hanifah
and the jurists of his school are of the opinion that their marriage should
remain intact. Malik and Shafi'i, on the other hand, argue that their matrimonial
contract should be rendered void.
Many misunderstandings seem to persist about the right to have sexual relations with one's slave-girls. It is pertinent to call attention to the following regulations of Islam:
(1) Islam does not permit soldiers of the Islamic army to have sexual relations with women they capture in war. Islamic Law requires that such women should first be handed over to the government, which then has the right to decide what should be done with them. It may either set them free unconditionally, release them on payment of ransom, exchange them for Muslim prisoners of war held by the enemy or distribute them among the soldiers. A soldier may have sexual relations only with that woman who has been entrusted to him by the government.
(2) Even then, he may not have sexual relations with her until at least one menstrual period has expired; this is in order to establish that she is not already pregnant. If the woman concerned is pregnant one may not have sexual relations with her until after the birth of her child.
(3) It is not necessary for female captives of war to be People of the Book in order that sexual relations with them be permitted. The man to whom such a woman is entrusted has the right to have sexual relations with her regardless of her religious affiliations.
(4) Only that person to whom a female captive has been entrusted has the right to have sexual relations with her. Any child born to her will be regarded as the legitimate child of her master, and will be entitled to all the rights laid down by the Law for one's issue. Moreover, once such a woman has given birth to a child she may not be sold to anyone, and on the death of her master she automatically becomes a free person.
(5) If the master allows the woman to marry someone else he ceases to have the right to sexual relations with her but retains the right to have her serve him in other ways.
(6) Although the Law has fixed the maximum number of wives at four, it has set no limit with regard to slave-girls. The Law does not lay down a limit in order to encourage people to accumulate huge armies of slave-girls, and thereby turn their homes into dens of sexual enjoyment. Rather the Law does not define the limit because the effects of war and the total number of female captives that would have to be disposed of after a certain war are unpredictable.
(7) In the same way as other rights of property are transferable, so are the proprietary rights regarding the captives of war that have been legally entrusted to a man by the state.
(8) Since the regular conferment of property rights is as legal an act as that of marriage, there is no basis for a person who feels no revulsion towards the idea of marriage to feel revulsion towards the idea of having sexual relations with a slave-girl duly entrusted to him.
(9) If a government confers proprietary rights to a man over a female captive of war it forfeits the right to withdraw those rights in the same way as the guardian (wali) of a woman ceases to have the right to withdraw his agreement to the marriage proposal after the marriage has been contracted.
(10) If a military commander permitted his soldiers to temporarily use the female captives as objects of sexual desire and distributed them among the soldiers for that purpose, such an act would be considered unlawful by Islamic Law. Such an act is not essentially different from fornication or adultery. For details see my book Tafhimat, vol. 2, pp. 366-84, and Rasai'il wa Masa'il, 6th edition, Lahore, 1976, vol. 3, pp. 102-4.
45. The difference between the status of people is relative. All Muslims are alike. If there is any true distinction its basis is a person's faith and faith is not an exclusive privilege of the rich or so-called upper classes of the society. So it is possible for a slave-girl to be superior, in respect of her faith and morals, to a woman belonging to the elite of a society.
46.A superficial reading of this verse can lead to the mistaken conclusion,
as Khawarij and others have done, that stoning is not the prescribed punishment
for adultery. Such people ask: If stoning is the prescribed punishment for extra-marital
sexual intercourse, then how is it possible to halve that punishment with regard
to slave-girls? Such people have not noted carefully the wording of this verse.
In this section see (verses 24-5) the term muhsanat (protected women) is used
in two different meanings. First, it is used in the sense of 'married women',
that is, those who enjoy the protection of their husbands. Second, it is used
in the sense of 'women belonging to families', i.e. those who enjoy the protection
of families even though they may not be married. In the verse under discussion,
the word muhsanat is used in the latter sense, i.e. in the sense of women who
enjoy the protection of families as opposed to slave-girls. At the same time,
the word is also used in the first meaning, when slave-girls have acquired the
protection accorded by the contract of marriage (fa idha uhsinna), they will
be liable to the punishment laid down in this verse if they have unlawful Sexual
It is therefore apparent that a free woman enjoys two kinds of protection. One is the protection of her family through which she remains protected even when she is not married. The second is the protection of her husband, which reinforces the protection of the family that she already enjoys. As long as the slave-girl remains a slave, she does not enjoy the protection of the family. However, when she is married she has the protection of her husband - and of her husband alone. This protection is partial. Even after marriage she is neither liberated from the bond of her master nor does she attain the status enjoyed by free women. The punishment prescribed for a married slave-girl is accordingly half the punishment of an unmarried free woman rather than half that of a married free woman.
This also explains that the punishment for unlawful sexual intercourse (zina) laid down in (Surah al-Nur 24: 2 )refers to the offence committed by unmarried free women alone, and it is in comparison with their punishment that the punishment of married slave women has been laid down as half. As for free married women, they deserve more severe punishment than the unmarried free women (muhsanat) for they violate the double protection. Even though the Qur'an does not specifically mention punishment by stoning it does allude to it in a subtle manner.
47. That is, if a man cannot afford to marry a free woman then he should marry a slave-girl with the permission of her master.