Abbas - Tanwîr al-Miqbâs min Tafsîr Ibn ‘Abbâs
(And if ye fear) if you know (a breech between them twain (the man and wife)) a dispute between the man and woman and you cannot establish who is at fault, (appoint an arbiter from his folk) from the man's folk to the man so that he can hear what he has to say and therefore establish whether he is in the right or wrong (and an arbiter from her folk) from the woman's folk to the woman in order to hear what she has to say and therefore establish whether she is in the right or wrong. (If they) the arbiters (desire amendment) between the man and the woman, (Allah will make them of one mind) i.e. the arbiters, the man and the woman. (Lo! Allah is ever Knower) of the agreement and disagreement of the arbiters, (Aware) of the doing of the woman and the man. The verses from Allah's saying: (Men are in charge of women, because Allah hath made the one of them to excel the other…) to His saying: (If they desire amendment Allah will make them of one mind. Lo! Allah is ever Knower, Aware) were revealed about the daughter of Muhammad Ibn Salamah. Her husband, As'ad Ibn al-Rabi' had slapped her because she refused to sleep with him. Consequently, she went to the Prophet (pbuh) to seek retaliation against her husband, but Allah prohibited her from doing so.
And if you fear, become aware of, a breach, a dispute, between the two, the married couple (the genitive construction shiqāqa baynihimā, ‘[any] breach between the two’, is for a range [of alternatives], in other words: shiqāqan baynihimā [is the normal construction]) send forth, for them with their consent, an arbiter, a just man, from his folk, his kinsmen, and an arbiter from her folk: the husband delegates to his arbiter the [matter of] divorce or the acceptance of compensation in its place, while she delegates to her arbiter the [matter of] separation. The two arbiters do their best and bid the one guilty of the injustice to desist, or they suggest separation if they see fit. God, exalted be He, says, if they, the two arbiters, desire to set things right, God will grant them, the married couple, success, determining for them what constitutes [an act of] obedience, be it reconciliation or separation. Surely God is ever Knower, of everything, Aware, of what is hidden and what is manifested.
(If you fear a breach between the two, appoint (two) arbitrators, one from his family). The Fuqaha' (scholars of Fiqh) say that when estrangement occurs between the husband and wife, the judge refers them to a trusted person who examines their case in order to stop any wrongs commited between them. If the matter continues or worsens, the judge sends a trustworthy person from the woman's family and a trustworthy person from the man's family to meet with them and examine their case to determine whether it is best for them to part or to remain together. Allah gives preference to staying together, and this is why Allah said,
(if they both wish for peace, Allah will cause their reconciliation.) `Ali bin Abi Talhah reported that Ibn `Abbas said, "Allah commands that a righteous man from the husband's side of the family and the wife's side of the family are appointed, so that they find out who among the spouses is in the wrong. If the man is in the wrong, they prevent him from his wife, and he pays some restitution. If the wife is in the wrong, she remains with her husband, and he does not pay any restitution. If the arbitrators decide that the marriage should remain intact or be dissolved, then their decision is upheld. If they decide that the marriage remains intact, but one of the spouses disagrees while the other agrees, and one of them dies, then the one who agreed inherits from the other, while the spouse who did not agree does not inherit from the spouse who agreed.'' This was collected by Ibn Abi Hatim and Ibn Jarir. Shaykh Abu `Umar bin `Abdul-Barr said, "The scholars agree that when the two arbitrators disagree, then the opinion that dissolves the marriage will not be adopted. They also agree that the decision of the arbitrators is binding, even if the two spouses did not appoint them as agents. This is the case if it is decided that they should stay together, but they disagree whether it is binding or not when they decide for separation.'' Then he mentioned that the majority holds the view that the decision is still binding, even if they did not appoint them to make any decision.
Maududi - Sayyid Abul Ala Maududi - Tafhim al-Qur'an
The Arabic word qawam or qawam stands for a person who is responsible for the right conduct, safeguard and maintenance of the affairs of an individual, an institution or an organization. Thus, than is governor, director, protector and manager of the affairs of women.
Men are superior to women in the sense that they have been endowed with certain natural qualities and powers that have not been given to women or have been given in a less degree, and not in the sense that they are above them in honor and excellence. Man has been made qawam (governor) of the family because of his natural qualities and woman has been made his dependent for her own safety and protection because of her natural drawbacks.
A tradition of the Holy Prophet is the best commentary on this, He said, "The best wife is the one who pleases you when you see her; who obeys your orders and who guards your property and her own honor when you are not at home. "
In this connection, it is necessary to give a warning. Obedience to Allah is of far greater importance than obedience to the husband and has precedence over it. 'therefore, it is the duty of the wife to refuse to obey her husband, if and when he orders her to do a thing which amounts to Allah's disobedience. In that case it shall be a sin to obey him. On the contrary, if the husband orders her not to observe a certain voluntary religious devotion, she must obey him, otherwise her devotion will not be accepted.
If the wife is defiant and does trot obey her husband or does not guard his rights, three measures have been mentioned, but it does not mean that all the three are to be taken at one and the same time. Though these have been permitted, they are to be administered with a sense of proportion according to the nature and extent of the offense. if a mere light admonition proves effective, there is no need to resort to a severer step. As to a beating, the Holy Prophet allowed it very reluctantly and even then did not like it. But the fact is that there are certain women who do not mend their ways without a beating. In such a case, the Holy Prophet has instructed that she would not be beaten on the face, or cruelly, or with anything which might leave a mark on the body.
"The two sides" refers both to the arbiters and to the spouses. Reconciliation can be effected in every quarrel, if the parties concerned desire it and if the arbiters try to effect it sincerely and justly.
In this verse, a plan has been put forward for settling disputes between husband and wife within the family. An effort should be made to effect a reconciliation before resorting to a court of law or making the final breach. The plan is to appoint one arbiter from the family of each spouse for this purpose. The two should probe into the real cause or causes of the dispute and then try to find a way out of it. Of course, the relatives are best qualified for it, knowing as they do the true conditions of the spouses.
Allah has left it unanswered as to who should appoint the arbiters so that each spouse may appoint one arbiter from his or her relatives, if they desire to patch up their differences, or the leaders of the two families may take the initiative and entrust the work of reconciliation to two arbiters, or if the case goes to the court, it may appoint two arbiters before taking any action.
There is a difference of opinion regarding the powers of the arbiters. According to the Hanafi and the Shafi `i schools of thought, the arbiters are not authorized to pass any final decree but may recommend measures for reconciliation, which tray be accepted or rejected by the spouses. Of course, if the spouses themselves authorize them to effect divorce or khula' or take any other measure, then they shall be bound to accept their decision. Hasan Basri, Qatadah and some other jurists are of the opinion that the arbiters are authorized to enforce reconciliation but not separation. Ibn `Abbas, Said bin Jubair, Ibrahim Nakha 'i, Sha 'bi, Muhammad bin Sirin and some other jurists are of the opinion that the arbiters have full authority to enforce their decision about reconciliation or separation whichever they consider to be proper.
Caliph Uthman and Caliph 'Ali used to authorize the arbiters appointed by theta with full powers to effect reconciliation or separation as required by the circumstances. For instance, when the case of 'Aqil, son of Abu Talib, and his wife Fatimah, daughter of 'Utbah bin Rabi'ah, was brought in the court of Caliph Uthman, he appointed as arbiter Ibn 'Abbas from the family of the husband and Mu'aviyah bin Abi Sufyan from the family of the wife and told them that they ware authorized to cause separation between them, if required by circumstances. Likewise, Caliph `Ali appointed arbiters in a similar case and authorized them to effect reconciliation between the spouses or separate them. This shows that the arbiters as such do not possess judicial powers, but if at the tithe of their appointment, the authority concerned empowers them with judicial powers, their decision shall be binding and enforced like other judicial decisions.
And if you fear a breach between the two send forth an arbiter from his folk and an arbiter from her folk if they desire to set things right God will grant them success. Surely God is ever Knower Aware. It is said that you have the right to her obedience in terms of the body but as for love and inclination toward you in the heart that is up to God. So do not burden her with what God has not provided for you from her. Hearts are in the power of God and He causes love within them toward whom He will and makes them hate whom He will. It is said that if they then obey you do not seek a way against them that is do not forget her loyalty in the past because of a single incident of antipathy in the present for perhaps the situation will become amicable again.