Incest in Sunni Islam

Hello readers and welcome. Todays blog about Islam will analyse the Islamic view of Incest. Incest is mentioned in the Quran and the authentic Hadiths of Mohammad, so we can get a fair picture of the issue from these sources.

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The Quran

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The Quran gives specific rules regarding incest, which prohibit a man from marrying or having sexual relationships with:

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Quran 4:22-23:

And do not marry those [women] whom your fathers married, except what has already occurred. Indeed, it was an immorality and hateful [to Allah ] and was evil as a way. Prohibited to you [for marriage] are your mothers, your daughters, your sisters, your fathers sisters, your mothers sisters, your brothers daughters, your sisters daughters, your [milk] mothers who nursed you, your sisters through nursing, your wives’ mothers, and your step-daughters under your guardianship [born] of your wives unto whom you have gone in. But if you have not gone in unto them, there is no sin upon you. And [also prohibited are] the wives of your sons who are from your [own] loins, and that you take [in marriage] two sisters simultaneously, except for what has already occurred. Indeed, Allah is ever Forgiving and Merciful.

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Here is a chart of consanguinity that we will use to highlight what categories of incestial relationships there are. Those circled in red are what the Quran prohibits, anything not circled means the Quran doesn’t mention these relationships:
IMG_20181222_211149.jpg

The commentaries of the verses are, of course, crystal clear in the issue:

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Ibn Abbas:

Seven degrees of blood relation and seven degrees of marriage relation are prohibited (for marriage).’

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Tafsir Ibn kathir:

This honourable Ayah is the Ayah that establishes the degrees of women relatives who are never eligible for one to marry, because of blood relations, relations established by suckling or marriage.

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Tafsir Jalalayn:

Forbidden to you are your mothers, in marriage, and this includes the paternal and maternal grandmothers; and daughters, including their children, if they should lower themselves [to such standards]; your sisters, from your fathers and mothers; your paternal aunts, that is, the sisters of your fathers and grandfathers; and maternal aunts, that is, the sisters of your mothers and grandmothers; your brother’s daughters, your sister’s daughters, including the children of these daughters;

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Jalalayn interestingly includes Grandparents, grandchildren and great aunts. And while these categories are not explicitly mentioned in the Quran I do think it’s a fair enough conclusion that Jalalayn came too.

However, early Muslim scholars struggled with the issue of marriage and sexual intercourse with someone who was born out of Adultery. This debate is found clearly in the Quartubi Tafsir of 4:23.

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Tafsir Quartubi 4:23:

The scholars have differed on the issue of prohibition of sexual intercourse with someone born out of Zina. The majority of knowledgeable scholars have said that if a man commits Zina with a woman, that act does not prohibit him from marrying her. Likewise, a man’s wife is not prohibited from him if he commits zina with her mother or her daughter. It is sufficient for him to receive the punitive judgment (based on Sharia), then he may have intercourse with his wife. If a man commits zina with a woman then desired to marry her mother or her daughter, they are not prohibited from him because of this act. Another group said (such a marriage) is prohibited for him. This opinion was reported by Amran Ibn Husain, as well as Al-Shu’bi and Atta’, Al Hassan, Sufyan Al–Thuri, Ahmad, Ishaq and those of opinion. It was reported by Malik that adultery prohibits (a man’s relationship with both) the mother and the daughter and this act (of zina) has the same prohibitions that a legal marriage has. This is also the saying of the people of Iraq. However, the (only) correct portion of Malik’s saying is that zina produces no regulations. For Allah, exalted and glorified, said in Surah 4:23, “Your wives’ mothers,” but did not say, “he who commited zina with his wives’ mothers, nor his daughter whom he conceived out of zina.” This is the saying of Al-Shafi’i and Abu Thuri…… Abdul Malik Ibn Al-Maj-shun said such a marriage (between a man and the daughter he conceived through zina) is permissable; which is the correct understanding of Allah’s saying in Surah 25:54, “It is He Who has created man from water: then has He established relationships of lineage and marriage,” referring to an approved legal marriage. This will be explained in Surah 25…

 

 

 

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Tafsir Quartubi 25:54:

Lineage and relationship through marriage are two terms that describe the personal relationships that may exist between humans. Ibn Al-Arabi said, “Lineage is an expression referring to the mixture of fluids between a male and a female from a religious legal point of view. However, if this union (between male and female) occurs through disobedience (fornication) then the resulting child is not considered part of a person’s true lineage. That is why a daughter born from zina is not mentioned in Allah’s saying, ‘Prohibited to you (for marriage) are: your mothers and daughters’ (Surah 4:23) because she is not considered a daughter according to the most authentic teaching of our scholars and the most authentic teaching of our religion.. If there is no legal lineage then there is no legal relationship; for zina does not prohibit (from marriage) the daughter of the mother (you committed zina with) nor the mother of a woman (you committed zina with). What is lawfully prohibited is not also prohibited due to sin, for Allah has bestowed lineage and relation through marriage upon His servants and greatly esteemed these relationships. Allah has also established laws identifying what is legal and what is prohibited, which are not equal to each other; therefore falsehood cannot be a part of these laws.” I (Qurtubi) said: The scholars have differed on the permissibility of a man marrying his daughter who was the result of an adulterous relationship; or for that matter marrying his sister or granddaughter who was the result of zina. Some prohibited this type of relationship; among them was Ibn Al Qasim, which is also the saying of Abu Hanifa and his companions. others however allowed this type of marriage such as Abdul Malik Al Maj’shun, which is also the opinion of Al-shafi’i. This was detailed in the explanation of Surah 4 (Al Nisa’).

Screenshot_20181223-000748~2.png

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Multiple other scholars have recorded this opinion, such as Jazairi, Ibn Qudamah and Maudidi.

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Al-Fiqh ala Madahib Arbea, by Jazairi, Vol 4 pg 42:

It is permissible for a man to marry his biological daughter if she was (conceived) through fornication, if he committed fornication with a woman and she got pregnant from him and gave birth to a girl then the girl is not unmarriable for him because the sperm released through fornication doesn’t make someone umarriable, as she is marriable for him, she is also marriable for his ancestors and progeny

Screenshot_20181222-223921~2.png

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Al-Mughni vol. 7 pg. 485:

It is not permissible for the man to marry his daughter born through zina, or her sister, grand daughter, niece and sister and this is the statement of the scholars, but Malik and Shafi said that it is permissible because she is alien and does not relate to him.

Screenshot_20181222-224227~2.png

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Tafsir Maudidi 4:23:

The prohibition about daughter also applies to the daughter of the son and the daughter of the daughter. There is, however, a difference of opinion in regard to a girl born of an illicit relationship. Imam Abu Hanifah, Imam Malik and lmam Ahmad-bin-Hanbal (may Allah bless them all) are of the opinion that she too is unlawful like the lawful daughter, but Imam Shafi ‘i does not consider an illegitimate daughter unlawful. 

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Al-Islam:

The Shafi’i and the Maliki schools consider a man’s marrying his daughter born of fornication as permissible and so also marrying his sister, his son’s daughter, his daughter’s daughter, his brother’s daughter, and his sister’s daughter, because she is legally a stranger to him and because the law of inheritance does not apply between them, nor the law of maintenance. The Hanafi, the Imamiyah and the Hanbali schools regard marriage with a daughter by fornication as haram (prohibited) as one with a lawful daughter, because. they say, the daughter by fornication is born of his seed and is therefore considered his daughter in the literal sense and by the society in general. Her legal disability to inherit does not negate the fact of her being his daughter: it only negates such legal effects as inheritance and maintenance.

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This basically says: if a man who is married to a woman has intercourse with for example: the wife’s mother and they conceive a child together, that means that because the child is illegitimate, the child is not considered a part of a person’s true lineage and because of this it is acceptable for the father to marry and have intercourse with the daughter according to some Quran scholars. The reason why these scholars held this view is that the Quran is not clear on this issue and doesn’t gove specific details on a given subject, i.e. permissible versus impermissible sexual acts. Quartubi himself admits this. Here is what he said again: “For Allah, exalted and glorified, said in Surah 4:23, “Your wives’ mothers,” but did not say, “he who commited adultery with his wives’ mothers, nor his daughter whom he conceived out of Adultery.”” Quartubi bases his position on Allah not specifically prohibiting having sexual relations with the kin of the woman with whom adultery was committed. I personally think it’s a bit of a far-fetched opinion if you know you have biological ties to the person, nevertheless it is a mainstream opinion and thus it was mentioned here.

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Cousin marriage

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If you remember from the Quran verse quoted above, marriage of cousins was not mentioned. However Islamic history dating back to mohammad and his early followers has instances of cousin marriages of varying degrees.

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Instance 1: Fatimah ❤️ Ali

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Fatimah was the daughter of the prophet Muhammad, and Ali was Mohammads cousin. Because of this, the relationship between the two were that they were first cousins once removed.

Multiple direct and indirect references to this marriage exist. I will quote 2 of them here for you.

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Sunan An Nasa’i 3221:

Narrated ‘Abdullah bin Buraidah: It was narrated from ‘Abdullah bin Buraidah that his father said: “Abu Bakr and ‘Umar, may Allah be pleased with them, proposed marriage to Fatimah but the Messenger of Allah said: ‘She is young.’ Then ‘Ali proposed marriage to her and he married her to him.
Hadith Grade:
(Sahih) according to Darussalam
(Sahih) according to Al-albani

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Sahih-Bukhari 3523:

It is related that al-Miswar ibn Makhrama said, “‘Ali ibn Abi Talib proposed to the daughter of Abu Jahl and Fatima heard about it. She went to the Messenger of Allah, may Allah bless him and grant him peace, and said, ‘Your people claim that you do not become angry on account of your daughters and so ‘Ali is going to marry the daughter of Abu Jahl.’ The Messenger of Allah, may Allah bless him and grant him peace, got up and I heard him say after the tashahhud, “Following on from that, I married my daughter to Abu’l-‘As ibn ar-Rabi’ and he spoke to me and told the truth to me. Fatima is part of me and I dislike that she be vexed. By Allah, the daughter of the Messenger of Allah, may Allah bless him and grant him peace, and the daughter of the enemy of Allah will not both be married to same man.’ So ‘Ali abandoned his proposal.” It is related that Miswar said, “I heard the Prophet, may Allah bless him and grant him peace, mention a son-in-law of his from the Banu ‘Abd Shams whom he praised as a good son-in-law, saying, ‘He spoke to me and told the truth. He promised me and kept his promise.'”

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Instance 2: Umar ❤️ Atika Zaid

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Atika was the daughter of Zaid bin Amr bin Naufal. Zaid was the uncle of the Umar. Atika was thus a cousin of Umar. They both had a son together.

Here are 2 sources which mention their marriage:

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Malik’s Muwatta 14:14:

Yahya related to me from Malik from Yahya ibn Said that Atika bint Zayd ibn Amr ibn Nufayl, the wife of Umar ibn al-Khattab, used to ask Umar ibn al-Khattab for permission to go to the mosque. He would keep silent, so she would say, “By Allah, I will go out, unless you forbid me,” and he would not forbid her.

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Tabaqat Al-Kubra vol 8 page 186:

Umar said to her guardian, “Mention me to her.” He was mentioned to her and she also rejected Umar. Umar said, “Marry her to me.” He married him to her and Umar went to her and went in where she was and contended with her until he overcame her and she carried out the marriage to him. When he finished, he said, “Bother! Bother! Bother! I say ‘Bother!’ to her!” Then he left her and left her alone and did not go to her. She sent a client of hers, saying to him, “Come, and I will prepare for you.”

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The story of these 2 can be read here: https://theislamicworld.net/node/543

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Incident 3: Mohammad ❤️ Zainab

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Little Backstory to this: Zaynab and Muhammad were cousins who knew each other since they were kids. Thus this marriage is 1st cousin incest. This incident is found in the Quran and the authentic Hadiths.

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Quran 33:37-38

And [remember, O Muhammad], when you said to the one on whom Allah bestowed favor and you bestowed favor, “Keep your wife and fear Allah,” while you concealed within yourself that which Allah is to disclose. And you feared the people, while Allah has more right that you fear Him. So when Zayd had no longer any need for her, We married her to you in order that there not be upon the believers any discomfort concerning the wives of their adopted sons when they no longer have need of them. And ever is the command of Allah accomplished. There is not to be upon the Prophet any discomfort concerning that which Allah has imposed upon him. [This is] the established way of Allah with those [prophets] who have passed on before. And ever is the command of Allah a destiny decreed!

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Sahih-Bukhari 7420:

Narrated Anas: Zaid bin Haritha came to the Prophet (ﷺ) complaining about his wife. The Prophet (ﷺ) kept on saying (to him), “Be afraid of Allah and keep your wife.” Aisha said, “If Allah’s Messenger (ﷺ) were to conceal anything (of the Qur’an he would have concealed this Verse.” Zainab used to boast before the wives of the Prophet (ﷺ) and used to say, “You were given in marriage by your families, while I was married (to the Prophet) by Allah from over seven Heavens.” And Thabit recited, “The Verse:– ‘But (O Muhammad) you did hide in your heart that which Allah was about to make manifest, you did fear the people,’ (33.37) was revealed in connection with Zainab and Zaid bin Haritha.”

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Sahih-muslim 177b:

Dawud reported on the same authorities the hadith as narrated above by Ibn ‘Uliyya and added: She (‘A’isha) said: If Muhammad were to conceal anything which was sent to him, he would have certainly concealed this verse:” And when thou saidst to him on whom Allah had conferred favour and thou too had conferred favour: Keep thy wife to thyself and fear Allah, and thou wast concealing in thy heart that which Allah was going to disclose, and thou wast fearing men while Allah has a better right that thou shouldst fear Him.

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Before we move onto the schools of Jurisprudence, let us revisit our “incest table”.

Yellow= Some scholars say they are allowed if they are a product of Adultery or fornication. Apart from that, they are prohibited.
Green= allowed explicitly (by actions of Mohammad and his companions)
Black= not explicitly prohibited, but can make sense to prohibit anyway or allowed to marry if product of Adultery if you follow that scholarly opinion.
Orange= not explicitly allowed, but makes sense to allow considering certain types of incestious marriages are allowed.
IMG_20181222_213301.jpg

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The Hadiths:

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There are two hadiths which deal with the matter of sexual intercourse with any of the prohibited groups of people in the Quran.

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Sunan Ibn Majah 2561:

It was narrated from Ibn`Abbas that the Messenger of Allah (ﷺ) said: “Whoever has intercourse with a Mahram relative, kill him; and whoever has intercourse with an animal, kill him, and kill the animal.”
Hadith Grade:
(Sahih) according to Darussalam
(Daif) according to Al-albani

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Sunan Ibn Majah 2608:

It was narrated from Mu’awiyah bin Qurrah that his father said: “The Messenger of Allah sent me to a man who had married his father’s wife after he died, to strike his neck (execute him) and confiscate his wealth.”
Hadith Grade:
(Hasan) according to Darussalam
(Sahih) according to Al-albani

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Schools of Jurisprudence

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For those of you who don’t know, Schools of Islamic law (madhahib) are the paths people follow to the Quran and Prophet Muhammad. Essentially these schools interpret what the Sharia law is. Today, the 4 sunni schools of Islamic thought accepted by all Muslims are the Hanafi, comprising 31% of the Muslims; the Maliki, comprising 25% of the Muslims; the Shafi΄i, comprising 16% of the Muslims; and the Hanbali, comprising 4% of the Muslims.
Screenshot_20181104-140322~2.png

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On the issue of intercourse with mother’s daughters and sisters the schools said (as reported by Ibn Qayyim):

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Al-Jawaab al-Kaafi, p. 270:

There is a totally natural repulsion towards that, and the hadd punishment for that is one of the most severe of punishments according to one of the two opinions, which is execution in all cases, whether he was married or not. This is one of the two views narrated from Imam Ahmad, and it is also the view of Ishaq ibn Raahawayh and a number of the scholars of hadith. Abu Dawud narrated that al-Bara’ ibn ‘Aazib said: I met my paternal uncle and he was carrying the banner. I said to him: Where are you going? He said: The Messenger of Allah has sent me to a man who married his father’s wife after he died, to strike his neck and confiscate his wealth. In Sunan Abu Dawud and Sunan Ibn Majah it is narrated that Ibn ‘Abbas said: The Messenger of Allah said: “Whoever has intercourse with a mahram relative, kill him.” The Muslims are unanimously agreed that the one who commits zina with a mahram deserves the hadd punishment; they only differed with regard to the nature of hadd punishment: should it be execution in all cases, or is it the hadd punishment of the fornicator? There are two points of view. Al-Shafi’i, Malik and Ahmad, according to one of the reports from him, were of the view that he should be subjected to the hadd punishment for zina. Ahmad, Ishaq and a number of the scholars of hadith were of the view that his punishment is execution whatever the case.

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For clarification, the first opinion basically means that if the people commiting incest are not married then they are lashed 100 times in public, but if they are married they are to be executed by stoning. The second opinion is stoning in all cases regardless of marriage status. However of course on a side note: if the person is a product of fornication or Adultery then their is no punishment according to the opinion of the scholars I have previously listed.

Furthermore, those of you who have been paying attention will notice that Ibn Qayyim mentioned nothing about the Hanafi school. This is because Ibn Qayyim was completely wrong when he said all schools punished incest. The hanafi school has absolutely no punishment at all. This is recorded by top Hanafi scholar Hassan bin Mansoor Qazi Khan in his book “Fatawa Qadhi Khan”

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Fatawa Qadhi Khan, Vol 4, Pg 821:

if a person marries a mahram and has sexual intercourse with them and even admits the fact that he knew while performing the marital rites that it was Haram for him to do that even then according to Imam Abu Hanifa, he is not subject to any type of Islamic penalty”.

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Cousin intercourse according to the 4 schools of Jurisprudence were hard to find. However these books and scholars hopefully shed some light on the subject.

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Al-Nawawi:

It is mustahabb to choose a religiously committed virgin who is of good lineage but is not a close relative.” Al-Jalaal al-Mahalli said in his Sharh: “Not a close relative” means a non-relative or a distant relative. The one who is distantly related is better than one who is not related at all.

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Mustahaab for those of you who don’t know, is an act in Islam that is Desirable, preferable or recommended, ordered without obligation. Mustahabb is something that is recommended and performed in desire for (Divine) love. Refers to those acts done by the Prophet; or the Companions very occasionally. The acts whose neglect is not punished, but whose performance is rewarded

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Shaykh Ibn ‘Uthaymeen:

What they said is true, but if there is someone among the relatives who is better in terms of other considerations (such as religious commitment, lineage and beauty), then that is better. In the event that they are equal in these terms, then a non-relative is better. So if a female cousin is religiously committed and of good character, and he is in a weak position and needs kindness and support, then undoubtedly such a marriage serves a great interest. A man should pay attention to his interests in this case. There is no shar’i text concerning this matter that has to be followed, hence a person should do what he thinks is in his best interests.

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Scholars of the Standing Committee:

There are no sahih hadith which forbid marriage to relatives. The incidence of retardation happens by the will and decree of Allah and is not caused by marriage to relatives as is widely believed.

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Al-Insaaf vol 8 page 16:

It is mustahabb to choose a woman who is religiously committed and fertile, a virgin of good lineage who is not a relative.

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Mataalib Ooli al-Nuha volume 5 page 9:

A non-relative, because her children will have better characteristics, and because there is no guarantee that they will not separate, which in the case of marriage to a relative would lead to severing of the ties of kinship, which we are enjoined to uphold. And it is said that non-relatives give children with better characteristics and female cousins have more patience.

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So what do you think?

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Do you agree with Imam Shafi?
Should incest be punished by lashings or stonings?
Should there be no punishment at all?
Should cousin marriage be legal?
Or maybe you think all incest should be legal?

Let me know!

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