By Kaniz Fatma, New Age Islam
06 January 2018
The word Zihar is derived from Zihr meaning “the back”. In the Sharia terminology, the Zihar is that a man says to his wife, “You are unlawful to me like the backside of my mother”. In other words, Zihar signifies a man comparing his wife to any of his female relations, within such prohibited degree of kindred, whether by blood, by fosterage or by marriage, as renders marriage with them invariably unlawful– as if he were to say to her [by a peculiarity in the Arabic idiom], “You are to me like the back [Zihr] of my mother”. [Durr al-Mukhtar, Radd al-Muhtar, Hindiyyah, Hidaya]
Allah the Most High said in the Quran,
“Those of you who separate their wives by Zihar (i.e., they say to their wives: You are to me as my mother’s back. But by saying this) they do not become their mothers. Their mothers are only those who have given them birth. And no doubt they utter an ill word and a lie. Surely, Allah is Most Forbearing, Most Forgiving.” (58:2)
From this verse it is clear that, making one’s wife unlawful by comparing her with his mother’s back is forbidden. This is because Allah the Most High called such an act evil and a lie, and both of these things are forbidden, as mentioned above, “And no doubt, they utter an ill word and a lie” (58:2)
The point to be noted here is that there are some women with whom marriage is permanently forbidden, such as mother, sister, daughter, and others in the prohibited degree. In general, although, looking at such women is permissible, but looking at some parts of their body is not permissible, (like abdomen, back etc). Zihar refers to “comparing one’s wife with any of such parts of the body of such forbidden women. It was customary in the old Arab before the advent of Islam that all conjugal relations ceased permanently between a man and his wife when the man would use the words of Zihar; rather it was worse than divorce. At that time, after Talaq, it was possible to take back the wife, but after the pronouncement of Zihar, as per the old custom of Arab, it was not at all possible to restore the conjugal rights.
The Quranic verses (58:2-4) reformed the custom and declared Zihar a sinful act. If a person extremely needs to separate from his wife, he should choose the method of divorce and not that of Zihar. This is because the method of Zihar for separation is absurd and false, as surely his wife is not his mother. The Quran says, “Their mothers are only those who have given birth to them” and thus those who separate their wives by Zihar are those who “utter evil and false words”. In other words, their pronouncement is false, that is, “calling one’s wife mother” is a heinous sin and also contrary to truth. Another reformation that Quran brought about is that the pronouncement of the words of Zihar does not dissolve the marriage nor does it give the man an open license to do as he wishes –like having carnal act with her. Such a person is a guilty and he will have to pay a penalty for uttering such evil and false words and the penalty is that he cannot take back his wife unless he first fulfils the prescribed expiation [Kaffarah].
Allama Abu al-Hasan Ali b. Bakr al-Marghinani al-Hanafi (573 A.H) writes,
“If a man says to his wife, “you are to me like the back of my mother”, she [the wife] becomes prohibited to him, and his carnal act with her is unlawful until he performs expiation [Kaffarah] for the same as has been enjoined in the divine speech of Allah the Most High, “And those who separate their wives by Zihar, but then seek to go back on what they have said, setting free a neck (a slave) is obligatory before they touch each other. This is what you are admonished. And Allah is Well Aware of the works that you do.” [58:3]
Allama al-Marghinani further writes,
والظهار كان طلاقا في الجاهلية فقرر الشرع اصله ونقل حكمه إلى تحريم موقت بالكفارة غير مزيل للنكاح وهذا لانه جناية لكونه منكرا من القول وزورا فيناسب المجازاة عليها بالحرمة وارتفاعها بالكفارة ثم الوطي اذا حرم حرم بدواعيه كي لا يقع فيه كما في الاحرام بخلاف الحائض والصائم لانه يكثر وجودهما فلو حرم الدواعي يفضي إلى الحرج ولا كذالك الظهار والاحرام فان وطيها قبل ان يكفر استغفر الله تعالى ولا شيء عليه غير الكفارة الأولى ولا يعاود حتى يكفر لقوله عليه السلام للذي واقع في ظهاره قبل الكفارة استغفرا الله ولا تعد حتى تكفر ولو كان شيء آخر واجبا لبينه عليه السلام (الهداية، كتاب الطلاق، باب الظهار، ص 417
Translation: “In the Jahiliyyah period [that is, before the advent of Islam], Zihar stood as a divorce [Talaq], and the Islamic Sharia afterwards preserved its nature [which is prohibition], but altered its effect to a temporary prohibition which continues until the performance of expiation [Kaffarah]. But Zihar does not dissolve the marriage [Nikah]. The reason for this is that Zihar is an offence, as being a declaration founded upon falsehood and which amounts to a disowning or denying of the wife; and therefore finds its proper punishment in her being rendered unlawful to him who pronounces it, by a prohibition which cannot be removed but by his performing expiation. And as carnal act becomes prohibited by Zihar, so do all its accompanying privileges, such as kissing, touching and other familiarity, lest the husband be tempered to the commission of the carnal act; in the same manner as is the rule with respect to relations within the prohibited degrees, with whom not only the carnal act itself, but also every familiarity which leads to the commission of it, are prohibited: contrary to that respecting women fasting, or in their courses, with whom although the commission of the carnal act itself be prohibited, yet other liberties are not so, as those situations are perpetually recurring to them and if such a rule were to hold, it would operate as an almost continual restraint upon them, whereas, with respect to women under Zihar, or within the prohibited degrees, this is not the case”. [Al-Marghinani, The Book of Talaq, Chapter Zihar, p. 417)
Does Zihar Dissolve The Marriage?
Explaining whether by the pronouncement of the words of Zihar, the divorce occurs or not, Allama Al-Marghinani says, “Zihar cannot occasion divorce. Let it be observed that from the words of the husband, “you are to me like the back of my mother, “nothing but Zihar is established, because the term employed expressly signifies Zihar; and if he should intend divorce by it, yet that does not take place, as the law of divorce is broken through in this particular situation [that is to say, Zihar has been made, by the law, a thing distinct and separate from divorce, and subject to a rule peculiarly applicable to itself] and also because it is abrogated [that is, now after the advent of Islam, Zihar is not considered a divorce] and consequently Zihar does not admit of divorce being intended by the words of Zihar.” [Al-Marghinani, The Book of Talaq, Chapter Zihar, p. 417)
If the prohibition occasioned by Zihar be violated, yet no additional penalty is incurred. If a man, having produced Zihar upon his wife, have carnal connexion with her before fulfilling the expiation, he will be a sinner. Therefore it is incumbent upon him to turn to Allah in repentance by feeling guilty and seeking forgiveness. Then he has to carry out the expiation and there is nothing additional penalty, and this is due to the Prophet’s statement to a man who came and said to the Prophet (peace be upon him) “Verily I declared my wife to be like my mother’s backside, then I committed the carnal act with her before making expiation”. The Prophet (peace be upon him) said to that man, “What encouraged you to do such thing, may Allah grant you His mercy? Do not go near her till you do what Allah has commanded you to do” (Al-Tirmidhi, who graded it Sahih-)
All the doctors of Islamic jurisprudence unanimously agree that if a man, with the intention of Zihar, pronounces the words of Zihar, it will not dissolve the marriage, that is, the divorce will not take place this way. However, it is forbidden to make carnal connexion with the wife unless the man performs the divinely prescribed expiation. This forbiddance can be terminated only by the expiation.
The competency of pronouncing Zihar appertains only to one who is in the state of sound mind and of mature age. The Zihar of immature and insane (Majnoo) is not valid.
If a man says to his wife, “O my mother, or O my sister, or O my daughter” [as in India it is usually spoken ‘Are Meri Maa, Are Meri Bahan’], then in that case Zihar will not occur, however it is disliked [Makrooh] to use such a word. [Al-Fatawa Al-Hindiyyah, Chapter – Zihar vol 1, p.507). it is also to be noted that if a man compares teeth, hands, feet, head and hair of his wife with those of Mahramat women [such as mother, sister, daughter], then such a comparison will not make Zihar valid, because looking at such parts of mother and sister is not forbidden. Similarly for example, if a man says to his wife, “your hand is like my mother’s hand”, then Zihar will not occur, nor will that man have to fulfill the expiation. [Sadrus Sharia Amjad Ali, Bahare Shariat, Chapter Zihar]
The Expiation for Zihar
The Quranic verses (58:2-4) show that the penalty has been imposed on the man who pronounces the words of Zihar upon his wife. Zihar is a heinous sin for which it is absolutely necessary for the man to repent and seek forgiveness. Since the concluding part of the Quranic verse 58:2 says “…..Allah is surely Most-forgiving, Very Merciful”, it signifies that Allah the Most High is always ready to forgive the lapses of the man, provided he seeks pardon and forgiveness with a penitent heart and reforms himself. From these Quranic verses, a Zihar may be expiated in three ways; 1) by the emancipation of a slave, 2) if the man cannot afford to do that, he should keep fast for two months successively and 3) if he is too ill or too weak to fast, then he must give two meals to sixty poor people on a single day, or alternatively one poor person can be given two meals for sixty days. After fulfilling such a prescribed expiation, the man shall be able to terminate the prohibition between him and his wife.
These three ways of expiation are clearly mentioned in the Quran. Allah the Most High says,
“And those who separate their wives by Zihar, but then seek to go back on what they have said; setting free a neck (a slave) is obligatory before they touch each other. This is what you are admonished. And Allah is Well Aware of the works that you do. But the one who does not find (a slave) must fast for two consecutive months (as an obligation) before they touch each other. Then someone who is unable to do that must feed sixty poor people (under obligation). That is in order that you may keep your belief in Allah and His Messenger (blessings and peace be upon him). And these are the limits (set by) Allah. And there is a painful punishment for the disbelievers.” (58:3-4)
It is narrated that the beloved Prophet (peace be upon him) said to the one who pronounced Zihar upon his wife, “Free a slave.” He said, “I don't have one”. So he [peace be upon him] said, “Then fast two consecutive months.” He said, “I am unable.” He [peace be upon him] said, “Feed sixty needy people.” He said, “I cannot.” So the Messenger of Allah said to Farwah bin Amr, “Give him that Araq - and it is a large basket that holds fifteen or sixteen Saa’ - to feed sixty needy people.” (Jami’ al-Tirmidhi)
In the case of emancipation of a slave, Allama Al-Marghinani says “it suffices for an expiation that a slave be released, whether that slave be a Kafir or a Muslim, an infant or an adult, a male or a female, because the word Raqba in the Quran applies equally to all of these” (Hidaya, the chapter of Zihar). Explaining it further, Mufti Azam-e-Hind Mustafa Raza says, “Since there is no slave in India, the man will have to keep fast for two months successively. If he discontinues his fasting without any genuine legal excuse of illness, his previous fast will be invalid and therefore he must restart his two months of fasting, as has been said in the divine statement of Allah, “…they must fast two successive months (58:4). If the man, without making the intention of Zihar, says to his wife “you are to me like my mother” explaining that his meaning was only to show respect to his wife, or that his wife is equal to his mother in rank and respect, it would be received according to his explanation. And therefore, Zihar will not be valid nor will that person have to fulfil the expiation” (Fatawa Mustafaviyyah; p 379, summarized)
To sum up, the words of Zihar do not dissolve the marriage. However if a man pronounces Zihar upon his wife, it is forbidden for him to make carnal connexion with his wife unless he pays the prescribed expiation, as discussed above in the light of the Quranic verses and Hadith.
(Translated from Urdu to be Published)
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