Al-Baqarah 2:236–240

Commentary

Keeping dower and consummation in view, divorce can be of four situations. The injunction concerning the first two of these has been stated in these verses. (1) Dower is not fixed and consummation has not taken place. (2) Dower is fixed but consummation has not taken place. (3) Dower is fixed and consummation has taken place. Here the fixed dower will have to be paid in full. This injunction appears elsewhere in the Holy Qur'an. (4) Dower has not been pre-fixed but divorce was given after consummation. Here full mahr al-mithl مھر المثل (a dower as in the divorcees' family) will have to be paid. It means the amount of the dower will be the same as customarily given in the immediate family circle of the woman. This too has been taken up in yet another verse of the Holy Qur'an.

The injunction related to the first two situations has been stated in the verses appearing here. Out of the two, the injunction for the first situation is: No dower is due but it is obligatory for the husband to

give something on his own to the woman -- the least being a set of clothes. In fact, the Holy Qur'an has not fixed any amount for this gift. However, it does indicate that the affluent should give in accordance with their capacity, which carries an element of persuasion for the man of means who should not behave tight-fisted in this act of grace. Sayyidna Hasan ؓ ، in a situation like this, gave a gift of twenty thousand dirhams to the divorced woman, and Qadi Shurayh, that of five hundred dirhams; and Sayyidna Ibn ` Abbas ؓ has said that the lowest degree here is to give one set of clothes. (Qurtubi)

In the second situation, when the woman's dower has been fixed before marriage and divorce occurs before actual consummation, the injunction says that the man shall be obligated to pay half of the dower already fixed. However, should the woman forgive, or should the man pay the whole, this will be a matter of free choice, as is evident from the verse:

إِلَّا أَن يَعْفُونَ أَوْ يَعْفُوَ الَّذِي بِيَدِهِ عُقْدَةُ النِّكَاحِ

Unless they (the women) forgive, or forgives the one in whose hand lies the marriage tie. (2:237)

The use of the word ya` fu يَعْفُوَ ('forgives' ) to cover even the payment of full dower, perhaps, reflects the customary Arab practice of the payment of dower amount simultaneously with the marriage. If so, the husband has become, in the event of a pre-consummation divorce, deserving of taking half of the dower back. Now, if he yields voluntarily and does not take his half back, this too, would virtually be an act of forgiving. And the act of forgiving has been declared more merit-worthy, and closer to Tagwa (the sense of being responsible to Allah, commonly rendered as piety or fear or righteousness in absence of an exact equivalent); because this forgiveness symbolically indicates that the severance of the bond of marriage was also done with magnanimity and good grace, which is the objective of the Shari'ah and certainly, deserving of great merit -- the forgiveness could come from the woman, or from the man, it does not matter.

Explaining the words of the verse الَّذِي بِيَدِهِ عُقْدَةُ النِّكَاحِ whose hands lies the marriage tie), the Holy Prophet ﷺ has himself said: ولی عُقْدَةُ النِّكَاحِ , that is, 'the husband is the guardian (wali) of the bond of marriage.' This hadith appears in Darqutni as narrated by ` Amr ibn Shu'ayb from his father on the authority of his grandfather, and also from Sayyidna ` Aii ؓ and Sayyidna ibn ` Abbas ؓ (Qurtubi).

This also proves that the authority to continue or terminate the bond of marriage rests with the husband. It is he who can pronounce talaq (divorce). The woman cannot divorce her husband.

Commentary

Based on the authority of some ahadith, a very large number of ` ulama', have said that al-salat al-wusta َالصَّلَاةِ الْوُسْطَىٰ or the middle salah is the salah of ` Asr because there are before it, two Salahs during the day, that of Fajr and Zuhr; and after these come two evening Salahs, that of Maghrib and ` Isha'. Special emphasis has been placed on it because this is a time in which most of the people are busy in their professional work.

Incidentally, the Qur'anic word, Qanitin قَانِتِينَ meaning obedient or submitting, rendered here as 'stand before Allah in total devotion', has been explained in Hadith as denoting sukut سکوت or motion-less silence.

It was through this very verse that talking in salah was forbidden. Earlier, talking was permissible. The verse 239 has allowed a special way of offering prayers in the state of 'fear' i.e. the state of war. In such a state, one can offer salah نماز (prayer) while standing, with a condition that he can stand in one place without moving, and can make the gesture of sajdah سجدہ in a lower position than he makes in ruku' رکوع . However, salah cannot be performed while walking. If it is not possible to perform the prayer in the said manner, such as at the time of actual fighting, then, it is permissible to delay the prayer and to offer it later as qada' قضاء .

The text now returns to the subject of divorce mentioned in verses 234-237. The command to take due care of all prayers (verses 238-239) put in between was to remind that the real thing in life is a constant orientation towards Allah, not only in prayers where it is more pronounced, but also in social relationships such as marriage and divorce, rather, in all areas of one's life. The message is: Follow rules set by Allah in your ultimate interest.

Verses 240-242 cited above give guidance on the provision of

residence and maintenance for widows which has been explained in the commentary which follows.

1. In the Age of Ignorance, the period of waiting for a widow was one year, and in Islam, it came to be four months and ten days rather than one full year as we already know from يَتَرَ‌بَّصْنَ بِأَنفُسِهِنَّ أَرْ‌بَعَةَ أَشْهُرٍ‌ وَعَشْرً‌ا : 'They keep themselves waiting for four months and ten days,' in Verse 234, explained earlier. However, women were given a certain advantage in this respect. Those were the days when the injunction of inheritance was not revealed and a wife's share in the inheritance was yet to be determined; in fact, the rights of all others simply revolved around the will of the deceased, as we have already learnt from the explanation of the verse 2:180. Therefore, it was made obligatory that a woman should be allowed to live in the premises of her late husband's house for one full year if she so desires. It was also mandatory under this arrangement that she be given her maintenance during this period out of what has been left behind by her husband. This rule is mentioned in this verse. Husbands have been instructed to make wills to this effect. Since this was the right of the woman and she had the choice to receive or leave it, therefore, it was not permissible for the inheritors to evict her out of the house, but it was permissible for her not to live in that house at her discretion, and leave her due for the inheritors. The condition, however, was that ` iddah or the waiting period of four months and ten days be completed. After the completion of this period she could leave the house of her husband and could enter into a new marriage with another person. This is what is meant by the Qur'anic expression: "Then, if they move out, there is no sin on you in what they have done for themselves of the recognized practice." However, going out during the period of ` iddah and getting married was all counted as sin -- not only for the woman concerned but also for those who could stop her yet did not do so. When 'the verse of inheritance' was revealed, the woman received her ordained share in the house and in all other items of inheritance on the strength of which she had the choice to live in her section of the house and spend out of her share in the inheritance after the completion of four months and ten days, and this verse was abrogated.