This is the only case where Jamaal `Ataaya has given a flawed argument IMHO. That's alright; every scholar has the right to be wrong sometime
He discusses this claim, which he rejects, on pages 253-259 of his book حقيقة النسخ وطلاقة النص في القرآن. He settles on the interpretation that ينكح
in 24:3 means to have sex. I strongly disagree. Az-Zajjaaj has proved that the word has never been used in the Quran to mean anything but marriage. I fully agree. Ash-Shawkaani disagreed and quoted for evidence,
Which is a rather surprising opinion since the verse says a few words later, "then if he divorces
her...", proving that 2:230 also speaks about marriage. Ash-Shawkaani said, according to `Ataaya, that the Prophet (PBUH) explained 2:230 by saying that what it means is sex. Yes, but within marriage!
`Ataaya points out that Sa`eed ibn Jabeer has said two conflicting opinions: that ينكح
in 24:3 means to have sex and that it means marriage. Again, he probably meant to have sex within marriage, as opposed to fornication.
`Ataaya concludes that 24:3 is a declarative statement, thus it cannot be abrogated, which talks about fornication only and not marriage at all, and therefore is unrelated to 24:32. I strongly disagree. The reason that 24:32 does not affect 24:3 is that الأيامى
does not mean, nor include fornicators!
Sa`eed ibn Al-Musayyib has opined that 24:3 was also abrogated by
I strongly disagree, since 24:3 specified the exception, or limitation, to the generality in 4:3.
`Ataaya's main point of contention is that he thought that the interpretation that ينكح
in 24:3 means marriage, implies that God approves of fornication. No! He simply says that fornicators cannot marry chaste people. That does not preclude punishing fornicators by flogging them. This was the opinion of Al-Hasan; that a man convicted of fornication can only marry a woman convicted of fornication. Ibn Al`Arabi disagreed and said that examination and narration do not support that. `Ataaya does not detail Ibn Al`Arabi's opinion. Does Ibn Al`Arabi suggest that convicted fornicators were allowed to marry chaste people?! That's absurd.
Ash-Shawkaani leans in his book فتح القدير, volume 4, page 5, to the opinion that 24:3 is a declarative statement stating the natural preference of fornicators to be with each other and that it is meant to discourage chaste believers from marrying fornicators. I strongly disagree. In reality, even criminals seek good people when they need something wholesome, a point brilliantly highlighted by Sheikh Sha`raawi, may God bless his soul. He pointed out how a thief would entrust his money and property to an honest man and never to a thief. By the same token, a fornicator who now wants to settle down and start a family will seek a chaste woman to marry. Verse 24:3 says he's not allowed to. This, to me, is the spirit of 24:3, which is in accordance with the general principle God emphasized by the rhetorical question,
One point `Ataaya makes is true though, and that is that 24:3 is a declarative statement. But, it is a declarative statement meant as an imperative, a style that appears many times in the Quran, for instance,
Where "obedience and good words" means "obey and say good words."