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Marriage and Divorce
By Mr. Adam Ismail
Rendered into English by Dr. Munir Munshey
Allah has created all living beings - not just humans - in pairs, so that they may find solace in the company of their mates. So that, through the process of reproduction and birth they may multiply and spread across the earth. The discoveries in the last century indicate that even the plants exist in pairs - male and female. According to the shariat the coming together of the sexes holds a great wisdom.
We have created everything in pairs (Az-zariyat 49)
That is the only means for the propagation and spread of humans across the surface of this earth. Allah has declared marriage to be the preferred practice in all his shariats.
We will limit our discussion to the relationship that exists between men and women in a civilized human society. We will highlight the problems of marriage, divorce, and the organization of family life. We will try to remind the Muslims of the spiritual values of Islam, even though we live in an age of skepticism. Material concerns seem to override all spiritual values in all walks of life. In fact, it would not be wrong to state that the civilized societies have sacrificed the holiest of relationships - the holy matrimony - at the altar of materialism.
We routinely violate all the principles, values and virtues established by the Islamic law __ the 'shariat'. We have reduced the relationship of holy matrimony to a salable commodity, for which we actively solicit the highest bid. Alas! We auction off our own flesh and blood. Intent upon securing the best bargain, we play around with the principles of 'mehar' and dowry, and have a surpassed the ignorance of the age of antiquity. The civilizations of the past, too, would fail to present examples of what we routinely practice in the name of progress and culture.
The curse of dowry has dashed the dreams of many innocent Muslim girls, and has dispatched their grieving parents to their early graves. In an effort to remedy the situation, many young girls left the sanctity of their homes. A different set of evil raised its ugly head when innocent and inexperienced young women entered the dog-eat-dog world. Hearts shudder at the mere mention of these evils.
How can we persuade our people to pause and ponder? Eagerly, they rush toward the age-old ignorance that prevails at present in the guise of progress. Of greater significance is the next question: how might we begin to cure this evil? There are no easy answers.
Charity begins at home, and so does the process of reform. It will catch on, if each of us turns over a new leaf, alters his attitude and mends himself. Light spreads as one lamp kindles another. If we talk about the evil in every company, then Insha Allah the wave of reform will roll on and it will soon become the talk of the town. The ray of hope, then, will illuminate the deepest of darkness.
As already mentioned, to contract manage is the preferred practice in all the 'shariats' of Allah. All the prophets have established this sunnah. To ignore this sunnah is not liked at all. The following ahadith prove that fact beyond doubt.
According to one of the hadith mentioned in 'Tirmizi', four acts happen to be the preferred practice of all the prophets:
1) To be modest.
2) To wear perfume
3) To use 'miswaak' __ (tooth brush)
4) To marry women.
According to another hadith in Tirmizi, Allah has taken upon Himself to help the following three types of persons:
(1) The one who fights in the cause of Allah.
(2) The slave who intend to pay for, and discharge his contract of emancipation.
(3) The one who contracts marriage, so he may remain chaste.
A long hadith mentioned in Bukhari describes a companion of the prophet who had resolved to stay unmarried for the rest of his life. When the prophet came to know about it, he remarked, "I marry women! Whoever refuses to follow this practice of mine is not of me."
Yet another hadith extols the virtues of marriage. According to that hadith mentioned in Tirmizi, the prophet said, "Whoever possesses four things has indeed received the best of this world, as well as the world to follow: the heart that expresses gratitude, the tongue that chants the praises of Allah, the body that endures during times of trouble, and a wife who neither cheats on her husband nor squanders his wealth.
Another hadith mentioned in Muslim says that this temporal world consists of nothing but the necessities of life for a brief while. In this world, a good wife is one of the better assets.
We will not go into the details of the rights and responsibilities of men as against those of the women. Rather, we wish to bring to light the basic assertion of the Qur'an. Men and women have become licit and lawful for each other, in the name of Allah and under the terms of his shariat. Husband and wife should both heed and fear the inevitable accountability before Allah. Instead of demanding the right, if each of them was more willing to grant due rights to the other, there is no reason for the gulf of differences to spring up between the two.
It is note worthy that Allah has primarily addressed men, not women in the Qur'an. That is so, because men are the 'qawwam'. They have been appointed the head of their household. Allah instructs men to:
Live with the women in an honorable manner. (An-Nisa 19)
Elsewhere, in that surah it says that Men are (appointed) in charge (and the caretakers) of women. The reason for that, it declares, is that they spend their wealth for their women. (An-Nisa 34)
The shariat charges the man with the responsibility of supporting his wife and children physically, emotionally, as well as financially. He has an obligation to bear the expenses for all their legitimate needs and requirements. Within his financial means, he must provide his family a home, and every thing else that is usual and customary for the maintenance and upkeep of the home.
On her part, the wife should be conscious of Allah. She must fear Allah and take care of all her responsibilities. During her husband's absence, she must guard her honor, and protect his wealth. She should be a pious and obedient wife.
Men and women compliment each other. They may be likened to the two wheels of a cart. The household functions well, like a well-oiled cart, only if the wheels move together and in unison. The pleasant and exhilarating effects of love and harmony between the husband and wife manifest itself in the daily lives of the entire family. In his book, Allah points out that love and compassion are the basic ingredients of a happy marriage. Lack of them makes marriage a living hell. When understanding and affection depart, the families fall apart. The tussle and tension tarnishes the psyche of impressionable young children, and takes its toll on the society at large. Loveless marriages breed love starved children devoid of family values. When such ill-bred and improperly raised children grow up and interact with others, they serve to disseminate the hazard. The society suffers even when a single marriage turns sour. It is only a matter of time before the poison seeps through. The cumulative effect of broken homes ultimately brings down even the best of civilizations. The story of the rise and fall of civilizations amply illustrates that fact. The beginning of the end of any civilization can invariably be traced to the decline and decay of its family structure and values.
Islam has therefore put a special importance on the reform and organization of family life. The proper raising of children has earned the promise of a rich reward in the hereafter. It has emphatically enjoined the children to respect and obey their parents. Thus the bonds between the family members remain intact and grow stronger. It would be impossible to save the family from disintegration, if cracks appear in the bonds that cement the family. Families tend to disintegrate if these bonds are strained, or snap. The shariat has adopted concrete measures to eliminate or restrict every cause that leads to the breakup of marriage and family. Towards that end, it warns of dire punishment in the hereafter to anyone who attempts to turn a wife against her husband. Divorce is certainly discouraged and disliked, except under certain unavoidable circumstances. A hadith declares, "Among all the permissible and legitimate acts, divorce is the most hated in the eyes of Allah."
It is a well-known fact that an average marriage endures constant strains and goes through several ups and downs. This is particularly true during the earliest stages. Inexperience and a lack of understanding causes the couples to make unwise decisions that sometimes lead to divorce. The laws of divorce laid down by Islam, too, are designed to deliver the family from ultimate destruction. A little reflection would bring that fact to the fore. Such are the sacred rules of divorce! If they were applied in letter and spirit and in earnest, far fewer couples would find it necessary to split up.
Most people are not familiar with the rules of divorce, and often times they squander away their chances to settle a domestic squabble. Many salvageable marriages are lost, simply because divorce is invoked in a casual and callous manner. Gloom descends on the lively and loving couple because of a momentary lapse of good judgment. The Muslim culture is presently in the state of decline and to find a suitable match for an unmarried young girl is not an easy matter. A marriage proposal for a divorced woman is even harder to come by. An increase in the number of divorced females would place an undue burden on the society. A suitable solution for such a problem is not easy to find. Muslims face the consequences of their deeds when they commit an error of judgment and violate one of the laws of Allah. They are unfamiliar with the laws of the shariat. Instead of turning toward Allah in repentance, they break yet another law of the shariat in order to escape the consequences of the initial violation. Thus, they move on, from the frying pan into the fire. Soon, they find themselves stuck in the quicksand with no chance to escape. If only they had sought refuge in the teachings of the prophet, SAW. If only they could accept the laws of Allah in every sphere of their existence, and implement them in their daily lives! Decline would cease and a Muslim renaissance would then be possible. Even in this age of skepticism, and despite the past disobedience and defiance, Muslims can get back on track.
Through this booklet we intend to present the Islamic laws of divorce in a simple and straightforward manner. Every married couple should be able to understand and benefit from them. In fact, we would advise all young adults to familiarize themselves with the laws of 'shariat' concerning marriage and divorce. It will help their marital life in the future. God forbid, if they face circumstances that warrant a divorce, they would be able to discharge their divinely ordained responsibilities.
As mentioned earlier, Islam has maintained a judicious and intricate balance between the preservation and protection of family on the one hand, and the freedom of choice of the couple on the other. It details the procedure along which separation can proceed, if the marriage breaks down beyond the possibility of reconciliation. Thus, it avoids the stifling suffocation found in Hinduism, which does not allow divorce under any circumstances. Nor does it leave the matter to the whims of the individual, as is the case in the western societies. There, the society appears not to be concerned about the relationship between a man and a woman.
Muslims were meant to adopt and implement the laws of marriage and divorce. They were supposed to advocate them to others. A pity! They have themselves forgotten these laws. Owing to ignorance and a lack of education, they have begun to accept the influences of foreign cultures. They still maintain a vague reverence and respect for the 'shariat', but their practical lives betray neglect for the great code of conduct. Consequently, the lives of the Muslims have become a living hell.
In surah Nisa, Allah has detailed certain steps to follow before resorting to divorce. These measures are meant to rescue a marriage on the rocks. Following this brief introduction, we now return to the subject of divorce.
We present the translation of the verses along with the authentic interpretation of the scholars, in order to clarify matters.
Men are (appointed) in charge (and the caretakers) of women _ (they are held responsible for maintaining the women physically, financially, and emotionally) _ because Allah has given one precedence over the other. Also, because they spend their means (to support the women). Thus, the virtuous women are obedient. They guard the rights of their husbands in their absence _ (the right) that Allah has upheld. If you perceive defiance from your women, admonish them, (then) keep them apart from your bed, and (then, as a last resort) beat them. If they relent and obey, do not seek the means to harass them. Of course, Allah is the most High, the Greatest!
If you fear a breach (of relationship) between the husband and wife, appoint two arbiters _ one from his family and one from hers. If both of them want reconciliation, Allah will cause a consensus between the two. Indeed, Allah is the all-Knowing, and the most Aware! (An-Nisa 34,35)
A short reflection on the above versus will clarify matters further. The Qur'an enjoins a course of action to deal with the complex problems of marital life right when they begin do crop up. It aims to nip the evil in the bud. Subhan Allah! It has a wonderful style of the narration. The Qur'an recommends four steps to save the marital life from ruin before contemplating the decision to divorce.
1) If the wife is defiant and disobedient, the first step is to talk to her. Perhaps she would understand.
2) If she refuses to listen, the husband may, in her own home, quit sleeping with her. That may persuade her to stop being defiant.
3) As a last resort, the husband has been permitted to punish his wife with a light beating. This is allowed when all else fails, and in order to save the entire family from total ruin. This is a last ditch measure, and is designed to teach a lesson, not to inflict an injury.
Despite the above measures, some women would continue to be defiant and obstinate. Beating such a woman on a repeated and regular basis __ especially if there are children watching __ would benefit no one. It cannot be condoned and is not permitted. It can only turn a home into a battle arena. Allah has addressed the Muslims and has enjoined that in such cases, an arbiter should be chosen from each family. If peace is at stake between a husband and wife, and the matter can not be resolved through dialogue within the family, then an attempt should be made to save the marriage through arbitration. Perhaps divorce could still be averted.
The Qur'an conveys to us in the form of a command, the answer to our problems. It is such a sacred and sane solution! We recite the Qur'an frequently, douse it with perfume and incense and shower it with respect. We place it on our eyes and over our heads, but when it is the time to act on its injunctions, we shy away from it. Seldom do we consult in order to heed its advice. Will such an evasive attitude save us from the hellfire in the hereafter? Can it grant us prosperity here on earth?
The behavior of many Muslims today contrasts so sharply with the commands of the Qur'an and the recommendations of the prophet, SAW. Many Muslim men slap their wives smack on their faces, even though the mistake their wives commit happens to be innocent and inadvertent. They make no attempt to determine the cause of the error. If the disagreement and dispute drags, they proclaim the divorce three times all in the same breath. Thus, they bring the sacred marital relationship to an abrupt halt. The very next moment, their wives become forbidden for them for good. Thriving prosperous homes suddenly begin to display the picture of hell.
Who is responsible for all that misery? Perhaps it is just the first of a series of punishments for banishing the edicts of the Qur'an from our personal lives. The torment of the hellfire is yet to come!
We have already enumerated the steps to be taken in the event of a disagreement or a dispute between the husband and wife. These measures may suffice to settle even the complex domestic quarrel. Some domestic disputes, however, are too tangled and tortuous to solve. Arbitration fails to secure a settlement in such cases. An attempt to force a decision and an arbitrary truce would frustrate the couple still further. Such an agreement seldom endures. Hatred and mistrust is the barrier between them. That root cause often defeats all attempts at reconciliation. The family and the society would probably suffer more if the couple stays together. To effect an orderly separation is more prudent and pragmatic. In such cases, the distasteful option of divorce is appropriate, and less harmful. We present a brief out line of how a separation should occur.
The preferred procedure for divorce has been described by the Qur'an. Allah says:
Divorce can only be (revoked) twice. After that, the divorced woman must be retained with honor (and love) or allowed to leave with (kindness and) grace. It is not permissible for you to take back anything you had given to her. (Al-baqarah 229)
Many authentic scholars of Islam __ the ulema __ have written detailed interpretations of the above verse. It becomes clear that under no circumstances should divorce be proclaimed thrice in the same sitting. It is certainly contrary to the Qur'an and the hadith. It is a manifest sin, and amounts to poking fun at the verses of Allah. It has been called an atrocious act.
The prophet, SAW, once came to know about a man who had proclaimed three divorces to his wife, all at the same time. With extreme displeasure the prophet remarked, "you play around with the verses of Allah, even while I am still present among you."
Yet, if someone utters three divorce pronouncements in the same sitting, then all three divorces, causing permanent and irreversible separation, become valid and effective right away.
The prescribed procedure for divorce, should a man intend to do so, according to the shariat is the following: the husband should wait till the wife starts her menstrual period. He should wait further till she is off, has bathed, and is clean. He may now utter the pronouncement of divorce, provided no sexual contact has occurred between the two since her last period. If it has, he needs to wait till she menstruates again. Divorce should be pronounced only once. No sexual activity may occur after that, and the wife should continue to live in the same house until the period of 'iddat' is over. During that time, the husband may change his mind and return to his wife. In that case the divorce would be considered to have been revoked. Reconciliation is more likely if both continue to live in the same house. Unless revoked, the divorce becomes effective at the completion of the 'iddat'. The marriage is officially over and she is no longer his wife. The same is true if __ the first having being revoked __ it happens to be the second divorce. He can no longer exercise his option to revoke the divorce, but he can still remarry her. If the divorce has been pronounced only once, the couple can still enter into wedlock at any time during their lives. With a fresh 'mehar' (nuptial dowry) and after another 'nikah' (wedding) they can once again become husband and wife. If on the other hand, divorce has been pronounced thrice the separation becomes irreversible. The third divorce cannot be revoked or annulled. Regret, remorse, and repentance is of no avail, and such a couple cannot remarry. A woman divorced thrice by her husband __ whether or not any of the divorces had been revoked __ needs to wed another man, consummate that relationship, be divorced by him and go through another 'iddat' before she can marry her first husband. That is called 'halala'.
Proclaiming one divorce at a time achieves all the objects of a divorce. It conforms with the teachings of the prophet, and his preferred practice. That is its main virtue! It does not slam the door shut on reconciliation and remarriage. That is its major advantage! Three quick pronouncements of divorce cause a permanent separation, and burn all bridges. The woman has to go through 'halala' before she becomes licit and legitimate for that man.
Marriage and divorce is an extensive subject, and it is not possible to cover all its related aspects in a small booklet. The above discussion touches upon the more pressing and immediate problems of divorce. To gain a better perspective of the subject, one may contact the 'ulemas'.
Let us now talk about the customs that prevail in our society and precede or follow the rite of 'nikah' __ the wedding.
There is nothing wrong if a few people from two families get together and celebrate the acceptance of the marriage proposal. There is nothing wrong if some food and beverages are served at the gathering. It strengthens the newly developed ties between the two families, and promotes an atmosphere of amity gaiety, and good will. It also serves to announce to the society that that boy is now betrothed to that girl. There is also nothing wrong if during the engagement __ or even before it, provided betrothal is intended __ the boy and the girl get to look at each other once or twice.
But what actually happens is far more than that. Unless stopped now these customs may become widespread. It may be impossible to put out the flames, once the fire engulfs the entire society. Nowadays, right after the engagement the boy and the girl talk to each other over the phone for hours. Some parents, having lost all the shame, let their daughter be alone with her fiancÚ. She is free to frolic and roam around with him. Two adults of the opposite sex alone to gather! The hazards are not hard to imagine. Such instances are not unheard of, when the girl became pregnant right after engagement and the boy's parents called off the wedding. The girl and her parents had their faces rubbed in dirt. Disgrace loomed over the family for life, and thereafter, they could not find another proposal for their girl. How far would we stray in our rebellion against Allah? We have failed to draw the line! That is the food for thought.
The shariat forbids us to send our daughter out with her fiancÚ __ a promise to wed earns no privileges __ who has merely just made known his intentions to marry. It is 'haram', and is not allowed. Besides, its worldly hazards are all too obvious.
The history of European civilization reveals that the same ills afflicted that culture decades ago. Under the pretext of getting to know each other, the boy and the girl began to 'date' right after engagement. Then, the boy would take advantage of the girl. Soon, the boys got into a habit and developed a taste for women. They would get engaged to girls, spoil them, and then move on in search of greener pastures. Families disintegrated, and moral values declined drastically, when this evil became widespread in the European culture.
Our society commits another major blunder in this regard. People just wait until someone asks for their daughter's hand. They consider marriage only after they receive a formal proposal from the boy's parent. For thousands of ladies, the wait is too long and they grow old waiting. Many young ladies feel compelled to leave home and look for a husband. They take matters into their own hands and mingle with men. Some end up being playmates and toys in the hands of unscrupulous rogues. Our society accepts the fallacy, and lends itself to the lore that only the boy's family may initiate a proposal. Therefore, many parents stand idly by, as their daughters discard 'purdah', put on alluring clothes, wear makeup and perfume, and venture out. Perhaps, an eligible bachelor would take a fancy for her and ask for her hand in marriage. Every blunder brings the society closer to ruin.
Who ever needs a mate should initiate the proposal. That is proper and prudent. Countless number of girls need not grow old, as they passively await proposals. It is the 'sunnah' of the prophets to initiate the proposal for a girl and approach the boy.
The Qur'an narrates the incident of prophet Shoaib (AS). He initiated the proposal and offered his daughter in marriage to prophet Musa (AS).
Perversion had become rampant among the nation of prophet Loot (AS). He addressed his people saying, "do not engage in a perverse practice. Instead, pick your wives from among the daughters of my nation."
Prophet Muhammad, SAW, too, offered his daughter in marriage to his companion, Usman, RA. After she died, he offered another one of his daughters to him. When she also died, the prophet remarked, "Usman, if I had another daughter, I would have asked you to marry her, too."
Caliph Omar, RA, also initiated the proposal, and suggested to the prophet SAW, to marry his daughter, Hafza (RA). Several such examples can be cited in the lives of the companions. So also, among the best of those who followed them. Such examples are also plentiful among our elders in the recent past. It goes to show that they did not consider it disgraceful to come forward and offer their daughters in marriage to suitable men. It would serve well here, to present the example of the father of one of the great leaders of Muslim, Syed Abdul Kadir Jeelani. Impressed by his piety, a man offered his daughter in marriage to him.
It becomes crystal clear from this and similar examples, that the one in need __ boy or girl __ should initiate the proposal. Almost all Muslim societies consider it a matter of disgrace and dishonor, if the girls parents initiate the proposal. Such an attitude is unsupported by the Qur'an and the hadith. In fact, quite the reverse is true. Until the society changes its attitude, it will continue to labor under the burden. The problem will persist, "how can I get my daughter married. No one has proposed, yet." The intractable wait and the false pride will ruin the lives of hundreds, even thousands of young girls.
The Qur'an and the 'sunnah' teach that the Muslims are brothers, and should wish each other well. In fact, a hadith declares that Muslims constitute a single body of believers. If an eye is sore, the entire body is restless. Muslims should feel each other's pain. Exactly the opposite seems to be the norm these days. Muslims inflict pain upon their brothers. They dishonor and disgrace one another in public. They pluck at, and plunder each other. One wonders! What is going to happen to the Muslims?
The healthy attitude is a not hard to figure. If the groom's father is financially strong, he may provide his son with the house and other needs. He could accept the daughter of his poorer brother into his home as his daughter-in-law. If the girl's father is well off, he may accept a poorer boy as his son-in-law. He could provide financial help, so the groom could establish himself and earn a livelihood. But alas, in our society the bride's father is overly burdened. That seems to be the hard and fast rule. The bride's father is made responsible for all the needs of the bride and groom. Even if he is poor! Even if he has to beg, borrow or steel! In some Muslim societies, the groom is made to pay an exorbitant sum of money as 'mehar' to the bride's father. He may grow old before he can afford that amount.
Except for the rite of 'nikah', the way of Allah and the practice of the prophet is no where to be found during the marriage celebrations. Instead, the customs and conventions of the pagans and the Hindus are adhered to, meticulously. They remind everybody of the days of ignorance. Soon after the wedding, the groom's parents throw a party and call it 'waleema', the sacred sunnah of the prophet. Nonsense and banalities of all kinds find their way into the practice of this sunnah. May Allah help us! The rich spend lavishly. The amount they spend on a single 'waleema' party would suffice to marry off dozen or so of the less fortunate girls. The middle class and poor people emulate the rich. They arrange a lavish 'waleema' dinner even if they have to borrow a hefty sum. Singing, dancing, videocassettes, and other banal acts are considered a requisite at these gatherings. The rich are invited while the poor are ignored. A hadith points out:
The worst 'waleema' meal is where the rich are welcome, and the poor are shunned.
Another hadith describes the worst of the 'waleema' meals. It is a party where unwelcome are those who want to come, while those invited eagerly are not eager to come.
According to the shariat, a woman just divorced or widowed may not contract another marriage until a specified period of time. A brief description will soon follow. That period of time is referred to as iddat. The shariat has placed certain restrictions upon the time and manner in which a husband may pronounce divorce. Else, the period of iddat might get unduly prolonged. What follows is brief description of the restrictions. Allah asks the prophet that if you must divorce your wife, do so in the clean period (The Tuhr, i.e. before their period) and remember the iddat.
The blessed hadith that follows explains the above verse well. Abdullah bin Umar (RA) narrates that he divorced his wife while she was on her period. The prophet came to know about this from Omar (RA), the father of Abdullah (RA). The prophet was quite displeased and said: let Abdullah revoke the divorce proclaimed during the state of menstruation. Let him keep his wife till her period quits, and she is clean. Let him wait further till she menstruates again, and is once again clean after that. Then, if he wants he may divorce her during the period when she is clean, provided he has not had an intercourse with her since her last period. And he must proclaim divorce only once. This is the iddat that Allah has enjoined in the above verse. (Bukhari and Muslim)
The duration of iddat
1. No iddat is required of a woman, if her husband dies or divorces her without having consummated the marriage.
2. The iddat of a woman who does not menstruate __ either because she is too old, and past her menopause, or too young __ is three lunar months counting from the time of her divorce.
3. The termination of pregnancy ends the iddat of a pregnant woman, regardless of whether she is divorced or widowed.
4. For the non-pregnant widow the iddat is four months and ten days, per the lunar calendar.
5. For the divorced woman whose marriage had been consummated, the iddat is three menstrual cycles. The iddat is over when the third period starts.
Rules that are established by the ahadith:
1. To proclaim divorce during menstruation is prohibited - it is 'haram'.
2. Whoever does that is obligated to revoke that divorce, provided it is revocable _ that is, it is the first or the second divorce.
3. Divorce may only be proclaimed during 'tuhur', the clean period _ the time between the two menstrual periods.
4. Lastly, divorce may not be proclaimed if sexual activity has already occurred during that clean period.
There is a complete consensus of opinion
among all the Muslim 'ulema' that divorce is prohibited during menstruation. It is also
prohibited in the clean period if sexual activity has already occurred. The prohibition,
in both cases is because of the fact that the iddat becomes unduly prolonged.
That will inflict undue hardship upon the woman. The menstruation during which divorce is
proclaimed does not count, nor does the rest of the menstrual cycle. The next menstrual period and the clean days
following that are also not counted. The
iddat begins when the second menstrual period ends. Thus the iddat of the divorced woman
becomes overly protracted. (Muarif alQur'an)
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