WHAT IS 'BONDMAID" MARRIAGE AGREMENT

The Details of the Question

READ AN ARTICLE ON" QUESTIONS ON ISLAM" IN WHICH IT WAS TOLD THAT IN ISLAM A MAN AND WOMAN CAN LIVE TOGETHER AND CAN DO SEX IN TWO FORMS. ONE IS MARRIAGE AGREMENT AND THE OTHER IS BONDMAID AGREMENT. SO I WANT TO ASK WHAT IS BONDMAID AGREMENT? WHAT ARE ITS CONDITIONS? IS IT IN PRACTICE THESE DAYS IN ANY MUSLIM COUNTRY?

The Answer

Dear Brother / Sister,

Today a Muslim cannot keep a woman as a female slave from non-Muslim countries referring to the example above because the institution of slavery which was a historical event is not present any more in today’s world.

Women and girls taken captive by the enemy during the war were taken as female slaves. Because they were regarded as the spoils by the law, they were given, by the Islamic State, to ghazis (warriors) who needed a servant. They were bought and sold as if they were commercial goods unless they were set free. After that moment, the female slaves were accepted and treated as a member and part of family. The master who had a female slave could employ her in the daily and personal works of him and if he wished, he could have a sexual relationship with her. Although it seems unusual at first sight, it was accepted normal in the historical conditions of that time. In fact, there is a permission about it in the Quran. In the Surah of Al-Mu’minun the permission is expressed as follows:

“Except from their wives or (the captives and slaves) that their right hands possess, for then, they are free from blame.”10

There are two important advantages of, for the benefit of female slave, that the master sexually has a relationship with his female slave. The first and most important one is that those women whose husbands died at war can be prevented from being neglected. Otherwise, it would be unavoidable that they would prostitute themselves. In this way, she would be dependent on her master’s home.

The other advantage: if she gave birth to a child from her master, she would be called “ummul walad” (the mother of the child). That child from the female slave is considered as free. Her mother becomes free and does not pass to the heirs by inheritance when her master dies. If she did not have the child or if her master did not set her free, like the other goods, the female slave would pass to the heirs by inheritance.

It was not obligatory that the master and female slave should be wife and husband. The master can employ her only as maidservant. If husband of the female slave was among the captives, their marriage will continue; then it is not religiously permissible to have a sexual intercourse with the female slave. Even if their masters are different, the master cannot sexually benefit from that female slave. 6

Along with those matters, Islam encouraged people (masters) to marry the male and female slaves with each other. In the Surah of an-Nur the following is stated:

And marry those among you who are single (i.e. a man who has no wife and the woman who has no husband) and (also marry) the Sâlihûn (pious, fit and capable ones) of your (male) slaves and maid-servants (female slaves). If they be poor, Allah will enrich them out of His Bounty. 7  Thus, slaves can be made equal to some extent. Islam always recommends masters to set slaves free and encourages them to get married with female slaves. In a Hadith, the Messenger of Allah (pbuh) explains the issue as follows:

"He who has a slave-girl and educates and treats her nicely and then manumits and marries her will get a double reward."8

Paying attention to those explanations, one can understand how well Islam has defended the rights of male and female slaves. A female slave was not seen just as a human whose womanhood would be exploited. She, at the same time, was a member and part of the family. She was the most responsible woman at home after her mistress.

A man could liberate his female slave by setting her free; he could also give her to someone as a present. The two female slaves that Muqawqis, the Emperor of Egypt, sent to the Prophet (pbuh) were like that. Those two female slaves had become Muslims by changing their religion on the way to Makkah. As it is known, the Prophet (pbuh) got married to one of those female slaves, Maria. Then she gave birth to Abraham. After Abraham was born, the Prophet set Maria free. Thus, she was in a position that the other wives of the Prophet desired to be in her place. The Prophet married the other female slave called Shirin with his poet, Hassan Bin Sabit.

1. Muslim, Jihad: 24; Ibn Majah, Jihad: 30.
2. Muslim, Itq: 21; Bıı/tnn , Itq: 1.
3. The Surah of an-Nur, 33.
4. Bukhari, Itq: 15.
5. ibid 16.
6. Istılâhat-ı Fıkhiyye Kamusu, 3:402.
7. The Surah of an-Nur, 32.
8. Bukhari, Itk: 15.

Mehmed Paksu

Detailed Answer

Marriage contract is an agreement which is done between a free man and woman (in this respect also those who possess their bodies as well) in order to establish a family and benefit from each other in sexual way and accepting that conditions. The agreement and disposal which provide to possess (to buy or to get with heritage, booty or donation) the bondmaid are a legal transaction.  And this legal transaction provides a right to live like a husband-wife between the owner and bondmaid. And also that way stands for marriage contract and is stronger and more comprehensive than it. (Prof. Dr. Hayrettin Karaman)

Two kinds of marriage are mentioned in the following verses, in the Qur’an: One is about the marriage that solemnized with a free woman, and the other is about a bondmaid.

“They/Believers, guard their modesty. Except with those joined to them in the marriage bond, or (the captives) whom their right hands possess,- for (in their case) they are free from blame.” (The Qur’an, Al-Muminun, 23/5-6).

“If ye fear that ye shall not be able to deal justly with the orphans, marry women of your choice, two or three or four; but if ye fear that ye shall not be able to deal justly (with them), then only one, or (a captive) that your right hands possess.” (The Qur’an, An-Nisaa, 4/3).

- The marriage which is done with a bondmaid is mentioned in the verse as “whom their right hands possess”. That is in another saying called “milku’l yemin” or “akdu’l milk” (the contract which shows the ownership of a bondmaid).

In Islamic jurisprudence, one more important concept concerning with that subject is the concept of “tasarri”. Its meaning is to decide to own a slave maid as a wife and to live with her henceforth. According to the Islamic law, the case of “tasarri” does not occur merely with getting a bondmaid. Except for the agreement of marriage (nikah), all of the conditions must be prepared in accordance with a marriage that solemnized with a normal woman. According to the sect of Hanafi, there are two conditions in order the “tasarri” to be carried out: The first is he must prepare a house for (bondmaid) her like his other wives who are free. And the second is he must have time for her, as he has time for his other free wives. According to Ebu Yusuf, man’s being in a desire of having a child from her (bondmaid) is a condition as well (see al-Badai, 8/344-45-shamile). These two conditions are valid in the sect of Shafii (see Muqni’l Muhtac, 20/316; Nihayetu’l Muhtac, 29/343- shamile).

Why there is no need for a marriage contract with a bondmaid?

Because, the agreement of “milq” is more efficient than a marriage contract. A marriage contract is an advantage contract. But in the agreement of Milq, there is an ownership to a concerned person, so the contract of Milq requires owning that concerned person. And the advantage contract occurs depending on that agreement (see the article called as “Mahmud Hamdi Zakzuk, at-Tasarri”).

-The arbiters on that subject are Islam scholars and fiqh sources. The judgments that the Ummah (the community of Our Prophet Muhammad (pbuh) whom follow Islam) complied with has been in accordance with those sources.

- According to the Islam scholars, in order that a man can be together with a woman is possible only in two ways: The contract of marriage or the contract of Milqul Yemin (keeping the personality of a bondmaid in his hands with a contract) (see Reddu’l Muhtar, 3/163).

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