Author
Mustafa Ates
Subject
Islamic law
Type
Book
Language
Arabic
Digital
Yes
Manuscript
No
Library
Royal Danish Library
Library Asset ID
EISSN: 2757-8399, DOI: 10.52637/kiid.980449
Record ID
cdi_doaj_primary_oai_doaj_org_article_6db3866954ec4a69a22eb9ac673a7f47
Library Location
DOAJ Directory of Open Access Journals
Notes
Discussions such as the failure to share the booty in accordance with the Sharia method and the compliance with the Sharia of the methods of obtaining the concubines sold by slave traders have led to the questioning of the permissibility of sexual intercourse with concubines, especially since the 15th century. When there is a possibility that the concubine, who is permissible for her master in terms of intercourse under normal conditions, may be free, it was deemed necessary as a precaution to marry the concubine due to the existence of this doubt. In case there is a strong possibility that the milk is not valid, the marriage in which a person performs a marriage with his own concubine in order to get rid of the fear of adultery, citing precautionary reasons, is called nikâh-ı tenezzühî. Since the institution of slavery and concubinage in the classical sense has disappeared, marriage does not have any importance today. However, in our opinion, the practice of nikâh-ı tenezzühî is an issue that should be emphasized, especially in terms of its application in the Ottoman period and the legal evaluation of some historical information. In this context, first of all, the issue of concubines and marriage will be discussed within the general framework of the subject. Subsequently, the theoretical background, reasons and emergence of the nikâh-ı tenezzühî practice will be investigated, its differences from normal marriage and its legal consequences will be examined, and examples of nikâh-ı tenezzühî in Ottoman practice will be examined. This study also aims to examine the existence of rulings and fatwas similar to nikâh-ı tenezzühî within the Hanafi sect and the relationship between them. In the research conducted within this framework, firstly in Hanafi sources 8/14. It has been observed that marriage has taken place since the 11th century. Under normal circumstances, it is not possible for the master to marry his concubine. Because the fact that the concubine is a mamluk, since she is under the ownership of her master, prevents her from becoming an owner in terms of marriage. On the other hand, the master has the right to divorce his concubine as long as he does not marry her to someone else. However, as mentioned above, there are also concubines who are sold as slaves but there is doubt that they are actually free. Especially when the kadi registers of the Ottoman period are examined, it is seen that this situation has become widespread enough to be subject to litigation. Of course, concubines who are proven to be free can gain their freedom through the court. For this reason, marriage cannot be applied to those who have the status of concubines but are actually free. On the other hand, those who are definitely known to be concubines are not included in the scope of marriage. Therefore, nikâh-ı tenezzühî is applied only to concubines for whom there is doubt as to whether they are actually free or not. One of the debates on whether istifras with concubines is permissible or not is the issue of not sharing the spoils properly, as mentioned above. This discussion about concubines obtained from booty is not within the scope of nikâh-ı tenezzühî, even though it is related to istifrâş. Because there is no doubt that the concubines obtained from the booty were in slave status. The reason why it is not permissible to excrete a concubine who is the booty is due to the suspicion of the property rights of other people who have a share of the booty over these concubines. When the Ottoman kadi registers and fatwa books of the period are examined, it is understood that there is no difference from the normal marriage contract in terms of the way the nikâh-ı tenezzühî is performed. In other words, the nikâh-ı tenezzuhî is concluded in the presence of witnesses, with the determination of the dowry and with the offer and acceptance of the parties, as in the normal marriage contract. However, with nikâh-ı tenezzühî, the results of the marriage contract are not revealed. Because the concubine status of the concubine who is married to her continues. When viewed from this perspective, the idea that nikâh-ı tenezzühî is a show-off marriage may come to mind. However, just like the zuhr prayer, the nikâh-ı tenezzühî is also aimed at eliminating the doubt in question from a religious perspective, on the grounds of precaution. Therefore, it can be said that nikâh-ı tenezzühî was deemed necessary not by accident but by religious reasons. When evaluated from this perspective, it is understood that nikâh-ı tenezzühî is a fatwa put forward to solve a problem that arose later through intra-sectarian ijtihad.
Görüntüle
Kocatepe İslami İlimler dergisi : (Online), 2021-12, Vol.4 (2), p.298-311
