The Fifth Issue

Some who hold that istiḥlāl can be determined by one's actions, cite as evidence the authentic narration of the man who married his father’s wife. The Prophet ﷺ ordered his execution [Tirmidhi 1362, Nasā'ē 3331, Ibn Mājah 2607]. In some wordings of the ḥadīth, it mentions that the man also took his father’s wealth. [Abū Dāwūd 4476, Nasā'ē 3332]. There is an additional narration stating that he divided the wealth in fifths. Ibn Ḥajar referenced this in 'Al-Isābah' to sources like Nasā'ē, Ibn Mājah, Ibn Abī Khaythamah, Ibn As-Sakan, and Al-Bāwardi, among others. Ibn Al-Qayyim attributed it in 'Zād Al-Ma’ād' to Ibn Abī Khaythamah in his 'Tārīkh'. However, I did not find this addition in the 'Mujtabā' of Nasā'ē or the 'Sunan' of Ibn Mājah, may Allāh have mercy on them. Regarding this narration with the additional detail of dividing the wealth in fifths, Ibn Al-Qayyim (may Allāh have mercy on him) stated: «قال يحيى بن معين: هذا حديث صحيح» "Yaḥyā ibn Ma’een said: This is an authentic ḥadīth." [Zād Al-Ma’ād (5/15)]. Ibn Ḥajar (may Allāh have mercy on him) said: «إسناده حسن» "Its chain of transmission is good." [Al-Iṣābah (1/314)] in the biography of Abū Qurrah Iyās ibn Hilāl Al-Muzani (may Allāh be pleased with him). I say: Division of the wealth in fifths indicates that it was treated as spoils of war (fay'), which is defined as "any wealth taken from disbelievers without combat"; as stated by Ibn Kathīr in his Tafsīr [4/396], under the commentary of Sūrah Al-Ḥashr (Āyah 7). This suggests that he was killed as an apostate [as explained by Aṭ-Ṭaḥawi in 'Sharḥ Ma’āni Al-Āthar' (3/150)]. Furthermore, I say: Using this ḥadīth as evidence is not valid because the ḥadīth implies that the Prophet ﷺ knew that the man considered this sin permissible in his heart. This is supported by four points: First Point: The people of Jāhiliyyah deemed it permissible to marry the father’s wife, viewing her as part of the inheritance. The man followed this Jāhiliyyah practice, believing it to be lawful. As-Sindi, may Allāh have mercy on him, said: «(نكح امرأة أبيه): على قواعد أهل الجاهلية، فإنهم كانوا يتزوجون بأزواج آبائهم، يعدون ذلك من باب الإرث، ولذلك ذكر الله تعالى النهي عن ذلك بخصوصه بقوله: ﴿وَلَا تَنكِحُوا مَا نَكَحَ ءَابَآؤُكُم﴾ [النساء ٢٢]...فالرجل سلك مسلكهم في عَدّ ذلك خلالاً، فصار مرتداً، فقُتل لذلك. وهذا تأويل الحديث عند من لا يقول بظاهره» "(He married his father's wife) according to the customs of Jāhiliyyah, as they used to marry the wives of their fathers, considering it part of inheritance. This is why Allāh specifically prohibited it by saying: 'And do not marry those [women] whom your fathers married' [An-Nisā' 22]...The man followed their tradition of considering this lawful, thus he became an apostate and was killed for that. This is the interpretation of the ḥadīth according to those who do not take it literally." [his commentary on Sunan An-Nasā'ē, under ḥadīth number 3332]. Second Point: The scholars (may Allāh have mercy on them) understood the ḥadīth to mean that it was known that the man considered the act permissible. Aḥmad, may Allāh have mercy on him) said: «نرى والله أعلم أن ذلك منه على الاستحلال» "We believe, and Allāh knows best, that this was due to his considering it permissible" [Masā'il of his son ’Abdullāh (3/1498/1085)]. Aṭ-Ṭaḥāwi, may Allāh have mercy on him, stated: «ذلك المتزوج فعل ما فعل من ذلك على الاستحلال، كما كانوا يفعلون في الجاهلية؛ فصار بذلك مرتداً، فأمر رسول الله ﷺ أن يفعل به ما يفعل بالمرتد» "The man who married his father's wife did so considering it permissible, as was the custom in Jāhiliyyah, and this made him an apostate. Thus, the Prophet ﷺ ordered him to be treated as an apostate" [Sharḥ Ma’āni Al-Āthār (3/149)]. Ash-Shawkāni, may Allāh have mercy on him, said: «لا بد من حمل الحديث على أن ذلك الرجل . . . عالِم بالتحريم وفَعَلَهُ مستحلاً؛ وذلك من موجبات الكفر» "The ḥadīth must be interpreted as indicating that the man...knew it was forbidden but did due to istiḥlāl, which is a cause of disbelief." [Nayl Al-Awṭār (7/131)].