Transliteration:( Laa junaaha 'alaikum in tallaqtumun nisaaa'a maa lam tamassoohunna aw tafridoo lahunna fareedah; wa matti'hoohunna 'alal moosi'i qadaruhoo wa 'alal muqtiri qadaruhoo matta'am bilma'roofi haqqan 'alalmuhsineen )
580. The word "touching" has sexual connotations while privacy between the husband and the wife is included with the decree of sexual intercourse. By (KHILWAT E SAHIHA) is meant privacy between the husband and wife in which there is no stoppage of sexual advances by the wife. In some instances no stoppage of such advances from the husband is also acceptable.
581. From this we learn that the customary dowry is either fully incumbent or not at all.
There are no half measures regarding it e.g. in the case where marriage is solemnized without discussing or determining dowry and the man divorces his wife after having sex with her, he will be liable for full payment of the dowry; if no sex has taken place, he will not be liable for any dowry, just one suit of clothes will be deemed sufficient. Furthermore, we learn that marriage without dowry is permissible. The determining of dowry is not a precondition for marriage, so much so that if one says I will notgive any dowry, marriage will still take place, If he now divorces the wife after sexual intercourse the payment of customary dowry will become incumbent on the husband. In addition, we learn that in the matter of divorce the husband remains independent i.e. just as marriage takes place upon mutual consent of husband and wife, in the case of divorce, too, there is no restraint. Only the husband can give divorce irrespective of whether the wife accepts it or rejects it.
582. If marriage is entered into without a woman determining the dowry, and she is given a divorce without sexual intercourse, she should only be given one suit of clothes. The clothes given depend on the social status,i.e. a rich man has to give an expensive suit of clothes, a poor man will buy a cheap suit of clothes. However, if dowry was agreed upon, and divorce is given before sexual intercourse, the wife is entitled to get half of the dowry.
583. From this discussion, emerge two issues:
1. If one marries any woman without the prior agreement of dowry and is then divorced without having sex with her, it becomes compulsory to pay one suit of clothes made of dress, pants and a scarf.
2. The suit of clothes paid should be according to the financial position of the husband. These two issues are declared from the words 'upon' and 'his resources'.
235. And there is no sin on you if you make a hint of betrothal or conceal it in yourself, Allah knows that you will remember them, but do not make a promise (of contract) with them in secret except that you speak an honorable saying. And do not be determined on the marriage bond until the term prescribed is fulfilled. And know that Allah knows what is in your minds, so fear Him. And know that Allah is Oft-Forgiving, Most Forbearing.
Allah said:
(And there is no sin on you) meaning, to indirectly mention marriage to the widow during the term of `Iddah for her deceased husband. Ath-Thawri, Shu`bah and Jarir stated that Ibn `Abbas said:
(And there is no sin on you if you make a hint of betrothal) “means saying, `I want to marry and I am looking for a woman whose qualities are such and such,’ thus talking to her in general terms in a way that is better.†In another narration (by Ibn `Abbas), “Saying, `I wish that Allah endows me with a wife,’ but he should not make a direct marriage proposal.†Al-Bukhari reported that Ibn `Abbas said that the Ayah:
(And there is no sin on you if you make a hint of betrothal) means, “The man could say, `I wish to marry,’ `I desire a wife,’ or, `I wish I could find a good wife’.†Mujahid, Tawus, `Ikrimah, Sa`id bin Jubayr, Ibrahim An-Nakha`i, Ash-Sha`bi, Al-Hasan, Qatadah, Az-Zuhri, Yazid bin Qusayt, Muqatil bin Hayyan and Al-Qasim bin Muhammad and several others among the Salaf and the Imams said that one is allowed to mention marriage indirectly to the woman whose husband died. It is also allowed to indirectly mention marriage to a woman who had gone through final, irrevocable divorce. The Prophet ordered Fatimah bint Qays to remain in the house of Ibn Umm Maktum for `Iddah when her husband Abu `Amr bin Hafs divorced her for the third time. He said to her:
(Inform me when your `Iddah term ends.)
When she finished the `Iddah, Usamah bin Zayd, the Prophet’s freed slave asked to marry her, and the Prophet married her to him. As for the divorced wife (not irrevocably divorced), there is no disagreement that it is not allowed for other than her husband to mention marriage proposals to her directly or indirectly (before the `Iddah finishes). Allah knows best.
Allah said:
(…or conceal it in yourself,) meaning, if you hide the intention of seeking marriage with them. Similarly, Allah said:
(And your Lord knows what their breasts conceal, and what they reveal) (28:69) and:
(…while I am All-Aware of what you conceal and what you reveal.) (60: 1) So, Allah said here:
(Allah knows that you will remember them) meaning, in your hearts, so He made it easy for you. Allah then said:
(…but do not make a promise (of contract) with them in secret)
`Ali bin Abu Talhah reported that Ibn `Abbas said that
(but do not make a promise (of contract) with them in secret) means do not say to her, “I am in love (with you),†or, “Promise me you will not marry someone else (after the `Iddah finishes),†and so forth. Sa`id bin Jubayr, Ash-Sha`bi, `Ikrimah, Abu Ad-Duha, Ad-Dahhak, Az-Zuhri, Mujahid and Ath-Thawri said that it (meaning of the Ayah) means taking the woman’s promise not to marry someone else.
Afterwards, Allah said:
(…except that you speak an honorable saying.)
Ibn `Abbas, Mujahid, Sa`id bin Jubayr, As-Suddi, Ath-Thawri and Ibn Zayd said that the Ayah means to indirectly refer to marriage, such as saying, “I desire someone like you.†Muhammad bin Sirin said: I asked `Ubaydah about the meaning of Allah’s statement:
(. ..except that you speak an honorable saying.) He said, “He says to her Wali, `Do not give her away (in marriage) until you inform me first’.†This statement was narrated by Ibn Abu Hatim.
Allah then said:
(And do not be determined on the marriage bond until the term prescribed is fulfilled.) meaning, do not make marriage contracts before the `Iddah finishes. Ibn `Abbas, Mujahid, Ash-Sha`bi, Qatadah, Ar-Rabi` bin Anas, Abu Malik, Zayd bin Aslam, Muqatil bin Hayyan, Az-Zuhri, `Ata’ Al-Khurasani, As-Suddi, Ath-Thawri and Ad-Dahhak said that:
(until the term prescribed is fulfilled.) means, `Do not consummate the marriage before the `Iddah term finishes.’ The scholars agree that marriage contracts during the `Iddah are invalid.
Allah then said:
(And know that Allah knows what is in your minds, so fear Him.) warning the men against the ideas they conceal in their hearts about women, directing them to think good about them rather than the evil, and Allah would not let them despair of His mercy, as He said:
(And know that Allah is Oft-Forgiving, Most Forbearing.)
260. This sundering of the matrimonial contract after it has been concluded does cause some harm to the woman; God has ordered, therefore, that the person concerned should compensate for the loss according to his capacity.
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