Translation of Malik's Muwatta, Book 29:
Divorce
Courtesy
of ISL Software, makers of the WinAlim Islamic database.
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Section:
The 'Irrevocable' Divorce
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Book 29, Number 29.1.1:
Yahya related to me from Malik that he had heard that a man said to
Abdullah ibn Abbas, "I have divorced my wife by saying I divorce
you a hundred times. What do you think my situation is?" Ibn Abbas
said to him, "She was divorced from you by three pronouncements,
and by the ninety-seven, you have mocked the ayat of Allah."
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Book 29, Number 29.1.2:
Yahya related to me from Malik that he had heard that a man came to
Abdullah ibn Masud and said, "I have divorced my wife by saying
I divorce you eight times." Ibn Masud said to him, "What have
people told you?" He replied, "I have been told that I have
to part absolutely from her." Ibn Masud said, "They have spoken
the truth. A person who divorces as Allah has commanded, Allah makes
it clear for him, and a person who obscures himself in error, we make
stay by his error. So do not confuse yourselves and pull us into your
confusion. It is as they have said."
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Book 29, Number 29.1.3:
Yahya related to me from Malik from Yahya ibn Said from Abu Bakr ibn
Hazm thatUmar ibn Abd al-Aziz had asked him what people said about the
'irrevocable' divorce, and Abu Bakr had replied that Aban ibn Uthman
had clarified that it was declared only once. Umar ibn Abd al-Aziz said,
"Even if divorce had to be declared a thousand times, the'irrevocable'
would use them all up. A person who says, 'irrevocably' has cast the
furthest limit."
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Book 29, Number 29.1.4:
Yahya related to me from Malik from Ibn Shihab that Marwan ibn al-Hakam
decided that if someone made three pronouncements of divorce, he had
divorced his wife irrevocably.
Malik said, "That is what I like best
of what I have heard on the subject."
29.2 Divorce by Euphemistic Statements
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Book 29, Number 29.1.5:
Yahya related to me from Malik that he had heard that Umar ibn al-Khattab
had heard in a letter from Iraq that a man said to his wife, "Your
rein is on your withers (i.e. you have free rein)." Umar ibn al-Khattab
wrote to his governor to order the man to come to him at Makka at the
time of hajj. While Umar was doing tawaf around the House, a man met
him and greeted him. Umar asked him who he was, and he replied that
he was the man that he had ordered to be brought to him. Umar said to
him, "I ask you by the Lord of this building, what did you mean
by your statement, 'Your rein is on your withers.'?" The man replied,
"Had you made me swear by other than this place, I would not have
told you the truth. I intended separation by that." Umar ibn al-
Khattab said, "It is what you intended."
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Book 29, Number 29.1.6:
Yahya related to me from Malik that he had heard that Ali ibn Abi Talib
used to say that if a man said to his wife, "You are haram for
me," it counted as three pronouncements of divorce.
Malik said, "That is the best of what
I have heard on the subject."
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Book 29, Number 29.1.7:
Yahya related to me from Malik from Nafi that Abdullah ibn Umar said
that statements like "I cut myself off from you",or"You
are abandoned", were considered as three pronouncements of divorce.
Malik said that any strong statements such
as these or others were considered as three pronouncements of divorce
for a woman whose marriage had been consummated. In the case of a woman
whose marriage had not been consummated, the man was asked to make an
oath on his deen, as to whether he had intended one or three pronouncements
of divorce. If he had intended one pronouncement, he was asked to make
an oath by Allah to confirm it, and he became a suitor among other suitors,
because a woman whose marriage had been consummated, required three
pronouncements of divorce to make her inaccessible for the husband,
whilst only one pronouncement was needed to make a woman whose marriage
had not been consummated inaccessible.
Malik added, "That is the best of
what I have heard about the matter."
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Book 29, Number 29.1.8:
Yahya related to me from Malik from Yahya ibn Said from al-Qasim ibn
Muhammad that a certain man had taken a slave-girl belonging to somebody
else as a wife. He said to her people, "She is your concern,"
and people considered that to be one pronouncement of divorce.
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Book 29, Number 29.1.9:
Yahya related to me from Malik that he heard Ibn Shihab say that if
a man said to his wife, "You are free of me, and I am free of you,
" it counted as three pronouncements of divorce as if it were an
'irrevocable' divorce.
Malik said that if a man made any strong
statement such as these to his wife, it counted as three pronouncements
of divorce for a woman whose marriage had been consummated, or it was
written as one of three for a woman whose marriage had not been consummated,
whichever the man wished. If he said he intended only one divorce he
swore to it and he became one of the suitors because, whereas a woman
whose marriage had been consummated was made inaccessible by three pronouncements
of divorce, the woman whose marriage had not been consummated was made
inaccessible by only one pronouncement.
Malik said, "That is the best of what
I have heard."
Section: What is Clear about Giving Wives
Right of Divorce
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Book 29, Number 29.2.10:
Yahya related to me from Malik that he had heard that a man came to
Abdullah ibn Umar, and said, "Abu Abd ar-Rahman! I placed the command
of my wife in her hand, and she divorced herself, what do you think?"
Abdullah ibn Umar said, "I think that it is as she said."
The man said, "Don't do it, Abu Abd ar-Rahman!" Ibn Umar said,
"You did it, it has nothing to do with me."
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Book 29, Number 29.2.11:
Yahya related to me from Malik from Nafi that Abdullah ibn Umar said,
"When a man gives a woman command over herself, then the result
is as she decides unless he denies it and says that he only meant to
give her one divorce and he swears to it - then he has access to her
while she is in her idda."
Section: Circumstances in Which only One
Pronouncement of Divorce Permitted in Giving Wives Right of Divorce
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Book 29, Number 29.3.12:
Yahya related to me from Malik from Said ibn Sulayman ibn Zayd ibn Thabit
that Kharija ibn Zayd ibn Thabit told him that he was sitting with Zayd
ibn Thabit when Muhammad ibn Abi Atiq came to him with his eyes brimming
with tears. Zayd asked him what the matter was. He said, "I gave
my wife command of herself, and she separated from me." Zayd said
to him, "What made you do that?" He said, "The Decree."
Zayd said, "Return to her if you wish for it is only one pronouncement,
and you have access to her."
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Book 29, Number 29.3.13:
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim from
his father that a man of Thaqif gave his wife command over herself,
and she said, "You are divorced." He was silent. She said,
"You are divorced." He said, "May a stone be in your
mouth." She said, "You are divorced." He said, "May
a stone be in your mouth." They argued and went to Marwan ibn al-Hakam.
He took an oath that he had only given her control over one pronouncement,
and then she returned to him.
Malik said that Abd ar-Rahman declared
that this decision had amazed al-Qasim, who thought it the best that
he had heard on the subject.
Malik added, "That is also the best
of what I have heard on the subject."
Section: What is Not Clear in Giving Wives
Right of Divorce
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Book 29, Number 29.4.14:
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim from
his father that A'isha, umm al-muminin, proposed to Qurayba bint Abi
Umayya on behalf of Abd ar-Rahman ibn Abi Bakr. They married her to
him and her people found fault with Abd ar-Rahman and said, "We
only gave in marriage because of A'isha." A'isha therefore sent
for Abd ar-Rahman and told him about it. He gave Qurayba authority over
herself and she chose her husband and so there was no divorce.
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Book 29, Number 29.4.15:
Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasim from
his father that A'isha, the wife of the Prophet, may Allah bless him
and grant him peace, gave Hafsa bint Abd arRahman in marriage to al-Mundhir
ibn az-Zubayr while Abd ar-Rahman was away in Syria. When Abd ar-Rahman
arrived, he said, "Shall someone like me have this done to him?
Am I the kind of man to have something done to him without his consent?"
A'isha spoke to al-Mundhir ibn az-Zubayr, and al-Mundhir said, "It
is in the hands of Abd ar-Rahman." Abd ar-Rahman said, "I
won't oppose something that you have already completed." Hafsa
was confirmed with al-Mundhir, and there was no divorce.
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Book 29, Number 29.4.16:
Yahya related to me from Malik that he had heard that Abdullah ibn Umar
and Abu Hurayra were asked about a man who gave his wife power over
herself, and she returned it to him without doing anything with it.
They said that there was no divorce. (i.e. The man's giving his wife
power over herself was not interpreted as a desire for divorce on his
part.)
Yahya related to me from Malik from Yahya
ibn Said that Said ibn al-Musayyab said, "If a man gives his wife
authority over herself, and she does not separate from him and remains
with him, there is no divorce."
Malik said that a woman whose husband gave
her power over herself and they separated while she was unwilling, had
no power to revoke the divorce. She only had power over herself as long
as they remained together.
Section: Annulment of Marriage by Husband's
Vow to Refrain from Intercourse (Ila)
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Book 29, Number 29.5.17:
Yahya related to me from Malik from Jafar ibn Muhammad from his father
that Ali ibn Abi Talib said, "When a man takes a vow to abstain
from intercourse, divorce does not occur immediately. If four months
pass, he must declare his intent and either he is divorced or he revokes
his vow . "
Malik said, "That is what is done
among us."
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Book 29, Number 29.5.18:
Yahya related to me from Malik from Nafi that Abdullah ibn Umar said,
"When a man makes a vow to abstain from intercourse with his wife
and four months have passed he must declare his intent and either he
is divorced or he revokes his vow. Divorce does not occur until four
months have passed and he continues to abstain."
Yahya related to me from Malik from Ibn
Shihab that Said al-Musayyab and Abu Bakr ibn Abd ar-Rahman said about
a man who made a vow to abstain from intercourse with his wife, "If
four months pass it is a divorce. The husband can go back to his wife
as long as she is in her idda."
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Book 29, Number 29.5.19:
Yahya related to me from Malik that he had heard that Marwan ibn al-Hakam
decided about a man who had made a vow to abstain from intercourse with
his wife, that when four months had passed, it was a divorce and he
could return to her as long as she was in her idda.
Malik added, "That was also the opinion
of Ibn Shihab."
Malik said that if a man made a vow to
abstain from intercourse with his wife and at the end of four months
he declared his intent to continue to abstain, he was divorced. He could
go back to his wife, but if he did not have intercourse with her before
the end of her idda, he had no access to her and he could not go back
to her unless he had an excuse - illness, imprisonment, or a similar
excuse. His return to her maintained her as his wife. If her idda passed
and then he married her after that and did not have intercourse with
her until four months had passed and he declared his intent to continue
to abstain, divorce was applied to him by the first vow. If four months
passed, and he had not returned to her, he had no idda against her nor
access because he had married her and then divorced her before touching
her.
Malik said that a man who made a vow to
abstain from intercourse with his wife and continued to abstain after
four months and so divorced her, but then returned and did not touch
her and four months were completed before her idda was completed, did
not have to declare his intent and divorce did not befall him. If he
had intercourse with her before the end of her idda, he was entitled
to her. If her idda passed before he had intercourse with her, he had
no access to her. This is what Malik preferred of what he had heard
on the subject.
Malik said that if a man made a vow to
abstain from intercourse with his wife and then divorced her, and the
four months of the vow were completed before completion of the idda
of the divorce, it counted as two pronouncements of divorce. If he declared
his intention to continue to abstain and the idda of the divorce finished
before the four months the vow of abstention was not a divorce. That
was because the four months had passed and she was not his on that day.
Malik said, "If someone makes a vow
not to have intercourse with his wife for a day or a month and then
waits until more than four months have passed, it is not ila. Ila only
applies to someone who vows more than four months. As for the one who
vows not to have intercourse with his wife for four months or less than
that, I do not think that it is ila because when the term enters into
it at which it stops, he comes out of his oath and he does not have
to declare his intention."
Malik said, "If someone vows to his
wife not to have intercourse with her until her child has been weaned,
that is not ila. I have heard that Ali ibn Abi Talib was asked about
that and he did not think that it was ila."
Section: The Ila (Vow of Abstention) of
Slaves
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Book 29, Number 29.6.19a:
Yahya related to me from Malik that he had asked Ibn Shihab about the
ila of the slave. He said that it was like the ila of the free man,
and it put an obligation on him. The ila of the slave was two months.
Section: Dhihar of Free Men
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Book 29, Number 29.7.20:
Yahya related to me from Malik from Said ibn Amr ibn Sulaym az-Zuraqi
that he asked al-Qasim ibn Muhammad about a man who made divorce conditional
on his marrying a woman i.e. if he married her he would automatically
divorce her. Al-Qasim ibn Muhammad said, "If a man marries a woman
whom he has made as his mother's back, i.e. has made haram for him,
Umar ibn al-Khattab ordered him not to go near her if he married her
until he had done the kaffara for pronouncing dhihar."
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Book 29, Number 29.7.21:
Yahya related to me from Malik that he had heard that a man asked al-Qasim
ibn Muhammad and Sulayman ibn Yasar about a man who pronounced dhihar
from his wife before he had married her. They said, "If he marries
her, he must not touch her until he has done the kaffara for pronouncing
dhihar."
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Book 29, Number 29.7.22:
Yahya related to me from Malik from Hisham ibn Urwa that his father
said that a man who pronounced a dhihar from his four wives in one statement,
had only to do one kaffara. Yahya related the same as that to me from
Malik from Rabia ibn Abi Abd ar-Rahman.
Malik said, "That is what is done
among us. Allah, the Exalted said about the kaffara for pronouncing
dhihar, 'It is to free a slave before they touch one another. If he
does not find the means to do that, then fasting for two consecutive
months before they touch one another. If he cannot do that, it is to
feed sixty poor people. ' " (Sura 58 ayats 4,5).
Malik said that a man who pronounced dhihar
from his wife on various occasions had only to do one kaffara. If he
pronounced dhihar, and then did kaffara, and then pronounced dhihar
after he had done the kaffara, he had to do kaffara again.
Malik said, "Some one who pronounces
dhihar from his wife and then has intercourse with her before he has
done kaffara, only has to do one kaffara. He must abstain from her until
he does kaffara and ask forgiveness of Allah. That is the best of what
I have heard. "
Malik said, "It is the same with dhihar
using any prohibited relations of fosterage and ancestry."
Malik said, "Women have no dhihar."
Malik said that he had heard that the commentary
on the word of Allah, the Blessed, the Exalted, "Those of you who
pronounce the dhihar about their wives, and then retract what they have
said," (Sura 56 ayat 3), was that a man pronounced dhihar on his
wife and then decided to keep her and have intercourse with her. If
he decided on that, he must do kaffara. If he divorced her and did not
decide to retract his dhihar of her and to keep her and have intercourse
with her, there would be no kaffara incumbent on him.
Maliksaid, "If he marries her after
that, he does not touch her until he has completed the kaffara of pronouncing
dhihar."
Malik said that if a man who pronounced
dhihar from his slave-girl wanted to have intercourse with her, he had
to do the kaffara of the dhihar before he could sleep with her.
Malik said, "There is no ila in a
man's dhihar unless it is evident that he does not intend to retract
his dhihar."
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Book 29, Number 29.7.23:
Yahya related to me from Malik from Hisham ibn Urwa that he heard a
man ask Urwa ibn az-Zubayr about a man who said to his wife, "Any
woman I marry along with you as long as you live will be like my mother's
back to me." Urwa ibn az-Zubayr said, "The freeing of slaves
is enough to release him from that."
Section: Dhihar of Slaves
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Book 29, Number 29.8.24:
ahya related to me from Malik that he asked Ibn Shihab about the dhihar
of a slave. He said, "It is like the dhihar of a free man."
Malik said, "He meant that the same
conditions were applied in both cases."
Malik said, "The dhihar of the slave
is incumbent on him, and the fasting of the slave in the dhihar is two
months. "
Malik said that there was no ila for a
slave who pronounced a dhihar from his wife. That was because if he
were to fast the kaffara for pronouncing a dhihar, the divorce of the
ila would come to him before he had finished the fast.
Section: The Option (of Slave-Girls Married
to Slaves when Freed)
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Book 29, Number 29.9.25:
Yahya related to me from Malik from Rabia ibn Abi Abd ar-Rahman from
al-Qasim ibn Muhammad that A'isha umm al-muminin, said, "There
were three sunnas established in connection with Barira: firstly was
that when she was set free she was given her choice about her husband,
secondly, the Messenger of Allah, may Allah bless him and grant him
peace, said about her, 'The right of inheritance belongs to the person
who has set a person free,' thirdly, the Messenger of Allah, may Allah
bless him and grant him peace, came in and there was a pot with meat
on the boil. Bread and condiments were brought to him from the stock
of the house. The Messenger of Allah, may Allah bless him and grant
him peace, said, 'Didn't I see a pot with meat in it?' They said, 'Yes,
Messenger of Allah. That is meat which was given as sadaqa for Barira,
and you do not eat sadaqa.' The Messenger of Allah, may Allah bless
him and grant him peace, said, 'It is sadaqa for her, and it is a gift
for us.' "
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Book 29, Number 29.9.26:
ahya related to me from Malik from Nafi that Abdullah ibn Umar said
that a female slave who was the wife of a slave and then was set free,
had the right of choice as long as he did not have intercourse with
her.
Malik said, "If her husband has intercourse
with her and she claims that she did not know, she still has the right
of choice. If she is suspect and one does not believe her claim of ignorance,
then she has no choice after he has had intercourse with her."
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Book 29, Number 29.9.27:
Yahya related to me from Malik from Ibn Shihab from Urwa ibn az-Zubayr
that a mawla of the tribe of Banu Adi called Zabra told him that she
had been the wife of a slave when she was a slave-girl. Then she was
set free and she sent a message to Hafsa, the wife of the Prophet, may
Allah bless him and grant him peace. Hafsa called her and said, "I
will tell you something., but I would prefer that you did not act upon
it. You have authority over yourself as long as your husband does not
have intercourse with you. If he has intercourse with you, you have
no authority at all." Therefore she pronounced her divorce from
him three times.
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Book 29, Number 29.9.28:
Yahya related to me from Malik that he had heard that Said ibn al-Musayyab
said that if a man married a woman, and he was insane or had a physical
defect, she had the right of choice. If she wished she could stay, and
if she wished she could separate from him.
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Book 29, Number 29.9.29:
Malik said that if a slave-girl, who was the wife of a slave, was set
free before he had consummated the marriage, and she chose herself,
then she had no bride-price and it was a pronouncement of divorce. That
was what was done among them.
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Book 29, Number 29.9.30:
Yahya related to me that Malik heard Ibn Shihab say, "When a man
gives his wife the right of choice, and she chooses him, that is not
divorce."
Malik added, "That is the best of
what I have heard."
Malik said that if a woman who had been
given the right of choice by her husband chose herself, she was divorced
trebly. If her husband said, "But I only gave her the right of
choice in one," he had none of that. That was the best of what
he had heard.
Malik said, "If the man gives his
wife the right of choice and she says, 'I accept one', and he says,
'I did not mean that, I have given the right of choice in all three
together,' then if she only accepts one, she remains with him in her
marriage, and that is not separation if Allah, the Exalted wills."
Section: Separating from Wives for Compensation
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Book 29, Number 29.10.31:
Yahya related. to me from Malik from Yahya ibn Said that Amra bint Abd
ar-Rahman told him from Habiba bint Sahl al-Ansari that she had been
the wife of Thabit ibn Qays ibn Shammas. The Messenger of Allah, may
Allah bless him and grant him peace, went out for the dawn prayer, and
found Habiba bint Sahl at his door in the darkness. The Messenger of
Allah, may Allah bless him and grant him peace, said to her, "Who
is this?" She said, "I am Habiba bint Sahl, Messenger of Allah."
He said, "What do you want?" She said, "That Thabit ibn
Qays and I separate." When her husband, Thabit ibn Qays came, the
Messenger of Allah, may Allah bless him and grant him peace, said to
him, "This is Habiba bint Sahl. She mentioned what Allah willed
that she mention." Habiba said, "Messenger of Allah, all that
he has given me is with me!" The Messenger of Allah, may Allah
bless him and grant him peace, said to Thabit ibn Qays, "Take it
from her," and he took it from her, and she stayed in the house
of her family.
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Book 29, Number 29.10.32:
Yahya related to me from Malik from Nafi from a mawla of Safiyya bint
Abi Ubayd that she gave all that she possessed to her husband as compensation
for her divorce from him, and Abdullah ibn Umar did not disapprove of
that.
Malik said that divorce was ratified for
a woman who ransomed herself from her husband, when it was known that
her husband was detrimental to her and was oppressive for her, and it
was known that he wronged her, and he had to return her property to
her. Malik added, "This is what I have heard, and it is what is
done among us."
Malik said, "There is no harm if a
woman ransoms herself from her husband for more than he gave her."
Section: Divorce of Men who Divorce for
Compensation
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Book 29, Number 29.11.33:
Yahya related to me from Malik from Nafi that Rubayyi bint Muawwidh
ibn Afra came with her paternal uncle to Abdullah ibn Umar and told
him that she had divorced her husband for a compensation in the time
of Uthman ibn Affan, and he heard about it and did not disapprove. Abdullah
ibn Umar said, "Her idda is the idda of a divorced woman."
Yahya related to me from Malik that he
had heard that Said ibn al-Musayyab and Sulayman ibn Yasar and Ibn Shihab
all said that a woman who divorced for a compensation had the same idda
as a divorced woman - three periods.
Malik said that a woman who ransomed herself
could not return to her husband except by a new marriage. If someone
married her and then separated from her before he had intercourse with
her, there was no idda against her from the recent marriage, and she
rested on her first idda.
Malik said, "That is the best that
I have heard on the matter."
Malik said, "If, when a woman offers
to compensate her husband, he divorces her straightaway, then that compensation
is confirmed for him. If he makes no response, and then at a later date,
does divorce her, he is not entitled to that compensation."
Section: Lian (Invoking Mutual Curses)
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Book 29, Number 29.12.34:
Yahya related to me from Malik from Ibn Shihab that Sahl ibn Sad as-Saidi
told him that Uwaymir al-Ajlani came to Asim ibn Adi al-Ansari and said
to him, "Asim! What do you think a man who finds another man with
his wife should do? Should he kill him and then be killed himself, or
what should .he do? Asim! ask the Messenger of Allah, may Allah bless
him and grant him peace, about that for me." Asim asked the Messenger
of Allah, may Allah bless him and grant him peace, about it. The Messenger
of Allah, may Allah bless him and grant him peace, was revolted by the
questions and reproved them until what he heard from the Messenger of
Allah, may Allah bless him and grant him peace. was intolerable for
Asim. When Asim returned to his people, Uwaymir came to him and said,
" Asim! what did the Messenger of Allah, may Allah bless him and
grant him peace, say to you?" Asim said to Uwaymir, "You didn't
bring me any good. The Messenger of Allah, may Allah bless him and grant
him peace, was revolted by the question which I asked him." Uwaymir
said, "By Allah! I will not stop until I ask him about it!"
Uwaymir stood up and went to the Messenger of Allah, may Allah bless
him and grant him peace, in the middle of the people and said, "Messenger
of Allah! What do you think a man who finds another man with his wife
should do? Should he kill him and then be killed himself, or what should
he do?" The Messenger of Allah, may Allah bless him and grant him
peace, said, "Something has been sent down about you and your wife,
so go and bring her."
Sahl continued, "They mutually cursed
one another in the presence of the Messenger, may Allah bless him and
grant him peace, and I was present with the people. When they finished
cursing each other, Uwaymir said, 'I shall have lied about her, Messenger
of Allah, if I keep her,' and pronounced the divorce three times before
the Messenger of Allah, may Allah bless him and grant him peace, ordered
him to do it."
Malik said that Ibn Shihab said, "That
was how the sunna of a couple mutually cursing each other was established
(lian)."
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Book 29, Number 29.12.35:
Yahya related to me from Malik from Nafic from Abdullah ibn Umar that
a man cursed his wife in the time of the Messenger of Allah, may Allah
bless him and grant him peace, and disowned her child. The Messenger
of Allah, may Allah bless him and grant him peace, separated them and
gave the child to the woman.
Malik said, "Allah the Blessed, the
Exalted, said, 'The testimony of men who accuse their wives but do not
have any witnesses except themselves is to testify by Allah four times
that he is being truthful, and a fifth time, that the curse of Allah
will be upon him, if he should be a liar. She will avoid punishment
if she testifies by Allah four times that he is a liar, and a fifth
time, that the wrath of Allah shall be upon her, if he should be telling
the truth. ' "(Sura 24 ayat 6).
Malik said, "The sunna with us is
that those who curse each other are never to be remarried. If the man
calls himself a liar, (i.e. takes back his accusation), he is flogged
with the hadd-punishment, and the child is given to him, and his wife
can never return to him. There is no doubt or dispute about this sunna
among us. "
Malik said, "If a man separates from
his wife by an irrevocable divorce by which he cannot return to her,
and then he denies the paternity of the child she is carrying, whilst
she claims that he is the father, and it is possible by the timing,
that he be so, he must curse her, and the child is not recognised as
his."
Malik said, "That is what is done
among us, and it is what I have heard from the people of knowledge."
Malik said that a man who accused his wife
after he had divorced her trebly while she was pregnant, and he had
at first accepted being the father but then claimed that he had seen
her committing adultery before he separated from her, was flogged with
the hadd-punishment, and did not curse her.
If he denied the paternity of her child
after he had divorced her trebly, and he had not previously accepted
it, then he cursed her.
Malik said, "This is what I have heard."
Malik said, "The slave is in the same
position as the free man as regards making accusations and invoking
mutual curses (lian). He acts in the lian as the free man acts although
there is no hadd applied for slandering a female-slave."
Malik said, "The muslim slave-girl
and the christian and jewish free woman also do lian when a free muslim
marries one of them and has intercourse with her. That is because Allah
- may He be blessed and Exalted, said in His Book, 'As for those who
accuse their wives,' and they are their wives. This is what is done
among us.
Malik said that a man who did the lian
with his wife, and then stopped and called himself a liar after one
or two oaths and he had not cursed himself in the fifth one, had to
be flogged with the hadd-punishment, but they did not have to be separated.
Malik said that if a man divorced his wife
and then after three months the woman said, "I am pregnant,"
and he denied paternity, then he had to do lian.
Malik said that the husband of a female
slave who pronounced the lian on her and then bought her, was not to
have intercourse with her, even if he owned her. The sunna which had
been handed down about a couple who mutually cursed each other in the
lian was that they were never to return to each other.
Malik said that when a man pronounced the
lian against his wife before he had consummated the marriage, she only
had half of the bride price.
Section: Inheritance of Children of Women
against whom Lian has been Pronounced
--------------------------------------------------------------------------------
Book 29, Number 29.13.36:
Yaha related to me from Malik that he had heard that Urwa ibn az-Zubayr
said that if the child of the woman against whom lian had been pronounced
or the child of fornication, died, his mother inherited from him her
right in the Book of Allah the Exalted, and his maternal half-brothers
had their rights. The rest was inherited by the owners of his mother's
wala' if she was a freed slave. If she was an ordinary free woman, she
inherited her right, his maternal brothers inherited their rights, and
the rest went to the muslims.
Malik said,"I heard the same as that
from Sulayman ibn Yasar, and it is what I saw the people of knowledge
in our city doing."
Section: Divorce of Virgins
--------------------------------------------------------------------------------
Book 29, Number 29.14.37:
Yahya related to me from Malik from Ibn Shihab from Muhammad ibn Abd
ar-Rahman ibn Thawban that Muhammad ibn Iyas ibn al-Bukayr said, "A
man divorced his wife three times before he had consummated the marriage,
and then it seemed good to him to marry her. Therefore, he wanted an
opinion, and I went with him to ask Abdullah ibn Abbas and Abu Hurayra
on his behalf about it, and they said, 'We do not think that you should
marry her until she has married another husband.' He protested that
his divorcing her had been only once. Ibn Abbas said, 'You threw away
what you had of blessing.' "
--------------------------------------------------------------------------------
Book 29, Number 29.14.38a:
Yahya related to me from Malik from Yahya ibn Said from Bukayr ibn Abdullah
al-Ashajj from an-Numan ibn Abi Ayyash al Ansari from Ata ibn Yasar
that a man came and asked Abdullah ibn Amr ibn al-As about a man who
divorced his wife three times before he had had intercourse with her
Ata said, "The divorce of the virgin is one. Abdullah ibn Amr ibn
al-As said to me, 'You say one pronouncement separates her and three
makes her haram until she has married another husband.' "
--------------------------------------------------------------------------------
Book 29, Number 29.14.38b:
Yahya related to me from Malik from Yahya ibn Said that Bukayr ibn Abdullah
al-Ashajj informed him that Muawiya ibn Abi Ayyash al-Ansari told him
that he was sitting with Abdullah ibn az-Zubayr and Asim ibn Umar ibn
al-Khattab when Muhammad ibn Iyas ibn al-Bukayr came up to them and
said, "A man from the desert has divorced his wife three times
before consummating the marriage, what do you think?" Abdullah
ibn az-Zubayr said "This is something about which we have no statement.
Go to Abdullah ibn Abbas and Abu Hurayra. I left them with A'isha. Ask
them and then come and tell us." He went and asked them. Ibn Abbas
said to Abu Hurayra, "Give an opinion, Abu Hurayra! A difficult
one has come to you." Abu Hurayra said, "One pronouncement
separates her and three makes her haram until she has married another
husband." Ibn Abbas said the like of that.
Malik said, "That is what is done
among us, and when a man marries a woman who has been married before,
and he has not had intercourse with her, she is treated as a virgin
- one pronouncement separates her and three make her haram until she
has married another husband."
Section: Divorce of Sick Men
--------------------------------------------------------------------------------
Book 29, Number 29.15.40:
Yahya related to me from Malik from Ibn Shihab that Talha ibn Abdullah
ibn Awf said, and he knew that better than them, from Abu Salama ibn
Abd ar-Rahman ibn Awf that Abd ar-Rahman ibn Awf divorced his wife irrevocably
while he was terminally ill, and Uthman ibn Affan made her an heir after
the end of her idda.
--------------------------------------------------------------------------------
Book 29, Number 29.15.41:
Yahya related to me from Malik from Abdullah ibn al-Fadl from al-Araj
that Uthman ibn Affan made the wives of ibn Mukmil inherit from him,
and he had divorced them while he was terminally ill.
--------------------------------------------------------------------------------
Book 29, Number 29.15.42:
Yahya related to me from Malik that he heard Rabia ibn Abi Abd ar-Rahman
say, ''I heard that the wife of Abd ar-Rahman ibn Awf asked him to divorce
her. He said, 'When you have menstruated and are pure, then come to
me.' She did not menstruate until Abd ar-Rahman ibn Awf was ill. When
she was purified, she told him and he divorced her irrevocably or made
a pronouncement of divorce which was all that he had left over her Abd
arRahman ibn Awf was terminally ill at the time, so Uthman ibn Affan
made her one of the heirs after the end of her idda."
--------------------------------------------------------------------------------
Book 29, Number 29.15.43:
Yahya related to me from Malik from Yahya ibn Said that Muhammad ibn
Yahya ibn Habban said, "My grandfather Habban had two wives, one
from the Hashimites and one from the Ansars. He divorced the Ansariyya
while she was nursing, and a year passed and he died and she had still
not yet menstruated. She said, 'I inherit from him. I have not menstruated
yet.' The wives quarrelled and went to Uthman ibn Affan. He decided
that she did inherit, and the Hashimiyya rebuked Uthman. He said, 'This
is the practice of the son of your paternal uncle. He pointed this out
to us.' He meant Ali ibn Abi Talib."
--------------------------------------------------------------------------------
Book 29, Number 29.15.44:
Yahya related to me from Malik that he had heard Ibn Shihab say, "When
a man who is terminally ill divorces his wife three times, she inherits
from him."
Malik said, "If he divorces her while
he is terminally ill before he has consummated the marriage, she has
half of the bride-price and inherits, and she does not have to do an
idda. If he consummated the marriage, she has all the dowry and inherits.
The virgin and the previously married woman are the same in this situation
according to us."
Section: Compensation in Divorce
--------------------------------------------------------------------------------
Book 29, Number 29.16.45:
Yahya related to me from Malik that he had heard that Abd ar-Rahman
ibn Awf divorced his wife, and gave her compensation in the form of
a slave-girl.
Yahya related to me from Malik from Nafi
that Abdullah ibn Umar said, "Every divorced woman has compensation
except for the one who is divorced and is allocated a bride-price and
has not been touched. She has half of what was allocated to her."
--------------------------------------------------------------------------------
Book 29, Number 29.16.46:
Yahya related to me from Malik that Ibn Shihab said, "Every divorced
woman has compensation."
Malik said, "I have also heard the
same as that from al-Qasim ibn Muhammad."
Malik said, "There is no fixed limit
among us as to how small or large the compensation is."
Section: The Divorce of the Slave
--------------------------------------------------------------------------------
Book 29, Number 29.17.47:
Yahya related to me from Malik from Abu'z-Zinad from Sulayman ibn Yasar
that Nufay, a mukatab of Umm Salama the wife of the Prophet, may Allah
bless him and grant him peace, or her slave, had a free woman as a wife.
He divorced her twice, and then he wanted to return to her. The wives
of the Prophet, may Allah bless him and grant him peace, ordered him
to go to Uthman ibn Affan to ask him about it. He found him at ad-Daraj
with Zayd ibn Thabit. He asked them, and they both anticipated him and
said, "She is haram for you. She is haram for you."
--------------------------------------------------------------------------------
Book 29, Number 29.17.48:
Yahya related to me from Malik from Ibn Shihab from Said ibn al-Musayyab
that Nufay, a mukatab of Umm Salama, the wife of the Prophet, may Allah
bless him and grant him peace, divorced his free wife twice, so he asked
Uthman ibn Affan for an opinion, and he said, "She is haram for
you."
--------------------------------------------------------------------------------
Book 29, Number 29.17.49:
Yahya related to me from Malik from Abdu Rabbih ibn Said from Muhammad
ibn Ibrahim ibn al-Harith at-Taymi that Nufay, a mukatab of Umm Salama,
the wife of the Prophet, may Allah bless him and grant him peace, asked
Zayd ibn Thabit for an opinion. He said, "I have divorced my free
wife twice." Zayd ibn Thabit said, "She is haram for you."
--------------------------------------------------------------------------------
Book 29, Number 29.17.50:
Yahya related to me from Malik from Nafi that Abdullah ibn Umar said,
"When the slave divorces his wife twice, she is haram for him until
she has married another husband, whether she is free or a slave. The
idda of a free woman is three menstrual periods, and the idda of a slave-girl
is two periods.
--------------------------------------------------------------------------------
Book 29, Number 29.17.51:
Yahya related to me from Malik from Nafi that Abdullah ibn Umar said,
"If a man gives his slave permission to marry, the divorce is in
the hand of the slave, and nobody else has any power over his divorce.
Nothing is held against a man who takes the slave-girl of his male slave
or the slave-girl of his female-slave."
Section: Maintenance of Slave-Girls Divorced
when Pregnant
--------------------------------------------------------------------------------
Book 29, Number 29.18.51a:
Malik said, "Neither a free man nor a slave who divorces a slave-girl
nor a slave who divorces a free woman, in an irrevocable divorce, is
obliged to pay maintenance even if she is pregnant, and he cannot return
to her."
Malik said, "A free man is not obliged
to pay for the suckling of his son when he is a slave of other people,
nor is a slave obliged to spend his money for what his master owns except
with the permission of his master."
Section: Idda of Women whose Husbands are
Missing
--------------------------------------------------------------------------------
Book 29, Number 29.19.52:
Yahya related to me from Malik from Yahya ibn Said from Said ibn al-Musayyab
that Umar ibn al-Khattab said, "The woman who loses her husband
and does not know where he is, waits for four years, then she does idda
for four months, and then she is free to marry."
Malik said, "If she marries after
her idda is over, regardless of whether the new husband has consummated
the marriage or not, her first husband has no means of access to her."
Malik said, "That is what is done
among us and if her husband reaches her before she has remarried, he
is more entitled to her."
Malik said that he had seen people disapproving
of someone who said that one of the people (of knowledge) attributed
to Umar ibn al-Khattab that he said, "Her first husband chooses
when he comes either her bride-price or his wife."
Malik said, "I have heard that Umar
ibn al-Khattab, speaking about a woman whose husband divorced her while
he was absent from her, and then he took her back and the news of his
taking her back had not reached her, while the news of his divorcing
her had, and so she had married again, said, 'Her first husband who
divorced her has no means of access to her whether or not the new husband
has consummated the marriage.' "
Malik said, "This is what I like the
best of what I heard about the missing man."
Section: Idda of Divorce and Divorce of
Menstruating Women
--------------------------------------------------------------------------------
Book 29, Number 29.20.53:
Yahya related to me from Malik from Nafi that Abdullah ibn Umar divorced
his wife while she was menstruating in the time of the Messenger of
Allah, may Allah bless him and grant him peace, Umar ibn al-Khattab
asked the Messenger of Allah, may Allah bless him and grant him peace,
about it. The Messenger of Allah, may Allah bless him and grant him
peace, said, "Go and tell him to take her back and keep her until
she is purified and then has a period and then is purified. Then if
he wishes, he an keep her, and if he wishes he should divorce her before
he has intercourse with her. That is the idda which Allah has commanded
for women who are divorced."
--------------------------------------------------------------------------------
Book 29, Number 29.20.54:
Yahya related to me from Malik from Ibn Shihab from Urwa ibn az-Zubayr
from A'isha, umm al-muminin, that she took Hafsa ibn Abd ar-Rahman ibn
Abi Bakr as-Siddiq into her house when she had entered the third period
of her idda. Ibn Shihab said, "That was mentioned to Amra bint
Abd ar-Rahman, and she said that Urwa had spoken the truth and people
had argued with A'isha about it. They said that Allah, the Blessed,
the Exalted, said in His Book, 'Three quru.' A'isha said, 'You spoke
the truth. Do you know what quru are? Quru are times of becoming pure
after menstruation .' "
--------------------------------------------------------------------------------
Book 29, Number 29.20.55:
Yahya related to me from Malik that Ibn Shihab said that he heard Abu
Bakr ibn Abd ar-Rahman say, "I have never seen any of our fuqaha
who did not say that this was what the statement of A'isha meant."
--------------------------------------------------------------------------------
Book 29, Number 29.20.56:
Yahya related to me from Malik from Nafi and Zayd ibn Aslam from Sulayman
ibn Yasar that al-Ahwas died in Syria when his wife had begun her third
menstrual period after he had divorced her. Muawiya ibn Abi Sufyan wrote
and asked Zayd ibn Thabit about that. Zayd wrote to him, "When
she began her third period, she was free from him and he was free from
her, and he does not inherit from her nor she from him."
--------------------------------------------------------------------------------
Book 29, Number 29.20.57:
Yahya related to me from Malik that he had heard that Abu Bakr ibn Abd
ar-Rahman and Sulayman ibn Yasar and Ibn Shihab used to say, "When
the divorced woman enters the beginning of her third period, she is
clearly separated from her husband and there is no inheritance between
them and he has no access to her."
--------------------------------------------------------------------------------
Book 29, Number 29.20.58:
Yahya related to me from Malik from Nafi that Abdullah ibn Umar said,
"When a man divorces his wife and she begins her third period,
she is free from him and he is free from her."
Malik said, "This is how things are
done among us."
--------------------------------------------------------------------------------
Book 29, Number 29.20.59:
Yahya related to me from Malik from al-Fudayl ibn Abi Abdullah, the
mawla of al-Mahri that al-Qasim ibn Muhammad and Salim ibn Abdullah
said, "When a woman is divorced and begins her third period, she
is clearly separated from him and is free to marry again."
--------------------------------------------------------------------------------
Book 29, Number 29.20.60:
Yahya related to me from Malik that he had heard that Said ibn al-Musayyab
and Ibn Shihab and Sulayman ibn Yasar all said, "The idda of the
woman with a khul divorce is three periods."
--------------------------------------------------------------------------------
Book 29, Number 29.20.61:
Yahya related to me from Malik that he heard Ibn Shihab say, "The
idda of the divorced woman is reckoned by the menstrual cycles even
if she is estranged ." (The reason the idda is normally reckoned
by the menstrual cycle is to see whether the woman is pregnant or not.)
--------------------------------------------------------------------------------
Book 29, Number 29.20.62:
Yahya related to me from Malik from Yahya ibn Said from a man of the
Ansar that his wife asked him for a divorce, and he said to her, "When
you have had your period, then tell me." When she had her period,
she told him. He said, "When you are purified then tell me."
When she was purified, she told him and he divorced her.
Malik said, "This is the best of what
I have heard about it."
Section: Idda of Women in their Houses
when Divorced in Them
--------------------------------------------------------------------------------
Book 29, Number 29.21.63:
Yahya related to me from Malik thal Yahya ibn Said heard al-Qasim ibn
Muhammad and Sulayman ibn Yasar both mention that Yahya ibn Said ibn
al-As divorced the daughter of Abd ar-Rahman ibn al-Hakam irrevocably,
so Abd ar-Rahman ibn al-Hakam took her away A'isha umm al-muminin sent
to Marwan ibn al-Hakam who was the Amir of al-Madina at that time. She
said, "Fear Allah and make him return the woman to her house."
Marwan said in what Sulayman related, ''Abd ar-Rahman has the upper
hand over me." Marwan said in what al-Qasim related, "Hasn't
the affair of Fatima bint Qays reached you?" A'isha said, "You
are forced to mention the story of Fatima " Marwan said, "If
you know that evil, whatever evil there was between those two is enough
for you." (See hadith 67.)
--------------------------------------------------------------------------------
Book 29, Number 29.21.64:
Yahya related to me from Malik from Nafi that the daughter of Said ibn
Zayd ibn Amr ibn Nufayl was the wife of Abdullah ibn Umar ibn Uthman
ibn Affan, and he divorced her irrevocably and she moved out. Abdullah
ibn Umar rebuked her for that.
--------------------------------------------------------------------------------
Book 29, Number 29.21.65:
Yahya related to me from Malik from Nafi that Abdullah ibn Umar divorced
one of his wives in the house of Hafsa, the wife of the Prophet, may
Allah bless him and grant him peace, while he was on the way to the
mosque. He went another route from behind the houses being averse to
ask permission to enter until he returned to her.
--------------------------------------------------------------------------------
Book 29, Number 29.21.66:
Yahya related to me from Malik from Yahya ibn Said that Said ibn al-Musayyab
was asked who was obliged to pay the rent for a woman whose husband
divorced her while she was in a leased house. Said ibn al-Musayyab said,
"Her husband is obliged to pay it." Someone asked, "what
if her husband does not have it?" He said, "Then she must
pay it." Someone asked, "And if she does not have it?"
He said, "Then the Amir must pay it."
Section: Maintenance of Divorced Woman
--------------------------------------------------------------------------------
Book 29, Number 29.22.67:
Yahya related to me from Malik from Abdullah ibn Yazid, the mawla of
al-Aswad ibn Sufyan from Abu Salama ibn Abd ar-Rahman ibn Awf from Fatima
bint Qays that Abu Amr ibn Hafs divorced her absolutely while he was
away in Syria. His agent sent her some barley and she was displeased
with it, saying, "By Allah, I don't expect anything from you."
She went to the Messenger of Allah, may Allah bless him and grant him
peace, and mentioned it to him. He said, "You have no maintenance."
He then ordered her to spend her idda in the house of Umm Sharik. Then
he said, "This is a woman whom my companions visit. Spend the idda
in the house of Ibn Umm Maktum. He is a blind man and you can undress
at his home. When you are free to remarry, tell me."
She continued, "When I was free to
remarry, I mentioned to him that Muawiya ibn Abi Sufyan and Abu Jahm
ibn Hisham had asked for me in marriage. The Messenger of Allah, may
Allah bless him and grant him peace, said, 'As for Abu Jahm, he never
puts down his stick from his shoulder (i.e. he is always travelling),
and as for Muawiya he is a poor man with no property. Marry Usama ibn
Zayd.' I objected to him and he said, 'Marry Usama ibn Zayd,' so I married
him, and Allah put good in it and I was content with him."
--------------------------------------------------------------------------------
Book 29, Number 29.22.68:
Yahya related to me from Malik that he heard Ibn Shihab say, "The
woman who is absolutely divorced does not leave her house until she
is free to remarry. She has no maintenance unless she is pregnant. In
that circumstance the husband spends on her until she gives birth."
Malik said, "This is what is done
among us."
Section: Idda of Slave-Girls Divorced by
Their Husbands
--------------------------------------------------------------------------------
Book 29, Number 29.23.69:
Malik said, "What is done among us when a slave divorces a slave-girl
when she is a slave and then she is set free, is that her idda is the
idda of a slave-girl, and her being set free does not change her idda
whether or not he can still return to her. Her idda is not altered."
Malik added, "The hadd-punishment
which a slave incurs is the same as this. When he is freed after he
has incurred but before the punishment has been executed, his hadd is
the hadd of the slave."
Malik said, "When a free man divorces
a slave-girl three times, her idda is two periods. When a slave divorces
a free woman twice, her idda is three periods."
Malik said about a man who had a slave-girl
as a wife, and he bought her and set her free, ''Her idda is the idda
of a slave-girl, i.e. two periods, as long as he has not had intercourse
with her. If he has had intercourse with her after buying her and before
he set her free, she only has to wait until one period has passed .
"
Section: General Chapter on Idda of Divorce
--------------------------------------------------------------------------------
Book 29, Number 29.24.70:
Yahya related to me from Malik from Yahya ibn Said and from Yazid ibn
Abdullah ibn Qusayt al-Laythi that Said ibn al-Musayyab said, ''Umar
ibn al-Khattab said, 'If a woman is divorced and has one or two periods
and then stops menstruating, she must wait nine months. If it is clear
that she is pregnant, that is that. If not, she must do an idda of three
months after the nine, and then she is free to marry.' "
Yahya related to me from Malik from Yahya
ibn Said that Said ibn al-Musayyab said, "Divorce belongs to men,
and women have the idda."
--------------------------------------------------------------------------------
Book 29, Number 29.24.71:
Yahya related to me from Malik from Ibn Shihab that Said ibn al-Musayyab
said, "The idda of the woman who bleeds constantly is a year."
Malik said, "What is done among us
about a divorced woman whose periods stop when her husband divorces
her is that she waits nine months. If she has not had a period in them,
she has an idda of three months. If she has a period before the end
of the three months, she accepts the period. If another nine months
pass without her having a period, she does an idda of three months.
If she has a second period before the end of those three months, she
accepts the period. If nine months then pass without a period, she does
an idda of three months. If she has a third period, the idda of the
period is complete. If she does not have a period, she waits three months,
and then she is free to marry. Her husband can return to her before
she becomes free to marry unless he made her divorce irrevocable."
Malik said, "The sunna with us is
that when a man divorces his wife and has the option to return to her,
and she does part of her idda and then he returns to her and then parts
from her before he has had intercourse with her, she does not add to
what has passed of her idda. Her husband has wronged himself and erred
if he returned to her and had no need of her."
Malik said, "What is done among us
is that if a woman becomes a muslim while her husband is a kafir and
then he becomes muslim, he is entitled to her as long as she is in her
idda. If her idda is finished, he has no access to her. If he remarries
her after the end of her idda, however, that is not counted as divorce.
Islam removed her from him without divorce."
Section: The Two Arbiters
--------------------------------------------------------------------------------
Book 29, Number 29.25.72:
Yahya related to me from Malik that he had heard that Ali ibn Abi Talib
said about the two arbiters about whom Allah, the Exalted, said,"If
you fear a breach between the two, appoint an arbiter from his people,
and an arbiter from her people. If they desire to set things aright,
Allah will make peace between them, surely Allah is Knowing, Aware,"
(Sura 4 ayat 35), that the separation and the joining were overseen
by the two of them.
Malik said, "That is the best of what
I have heard from the people of knowledge. Whatever the two arbiters
say concerning separation or joining is taken into consideration "
Section: Oath of Men to Divorce while Not
yet Married
--------------------------------------------------------------------------------
Book 29, Number 29.26.73:
Yahya related to me from Malik that he had heard that Umar ibn al-Khattab,
Abdullah ibn Umar, Abdullah ibn Masud, Salim ibn Abdullah, al-Qasim
ibn Muhammad, Ibn Shihab,and Sulayman ibn Yasar all said, "If a
man has vowed to divorce his wife before marrying her and then he breaks
his vow, divorce is obligatory for him when he marries her."
Yahya related to me from Malik that he
had heard that Abdullah ibn Masud said that there was nothing binding
on someone who said, "Every woman I marry is divorced," if
he did not name a specific tribe or woman.
Malik said, "That is the best of what
I have heard."
Malik said about a man saying to his wife,
"You are divorced, and every woman I marry is divorced," or
that all his property would be sadaqa if he did not do such-and-such,
and he broke his oath: "As for his wives, it is divorce as he said,
and as for his statement, 'Every woman I marry is divorced', if he did
not name a specific woman, tribe, or land, or such, it is not binding
on him and he can marry as he wishes. As for his property, he gives
a third of it away as sadaqa."
Section: Deadline of Men who do Not have
Intercourse with Their Wives
--------------------------------------------------------------------------------
Book 29, Number 29.27.74:
Yahya related to me from Malik from Ibn Shihab that Said ibn al-Musayyab
said, "If someone marries a woman and cannot have intercourse with
her, there is a deadline of a year set for him to have intercourse with
her. If he does not, they are separated."
--------------------------------------------------------------------------------
Book 29, Number 29.27.754:
Yahya related to me from Malik that he had asked Ibn Shihab about whether
the deadline was set from the day he had married her, or from the day
she raised the question before the Sultan. He said. 'It is from the
day she presents it before the Sultan.'
Malik said, "As for someone who has
intercourse with his wife and then is prevented from intercourse with
her, I have not heard that there is a deadline set for him or that they
are separated."
Section: General Section on Divorce
--------------------------------------------------------------------------------
Book 29, Number 29.28.76:
Yahya related to me from Malik that Ibn Shihab said, "I have heard
that the Messenger of Allah, may Allah bless him and grant him peace,
said to a man from Thaqif who had ten wives when he became muslim, 'Take
four and separate from the rest.' "
--------------------------------------------------------------------------------
Book 29, Number 29.28.77:
Yahya related to me from Malik that Ibn Shihab said that he had heard
Said ibn al-Musayyab, Humayd ibn Abd ar-Rahman ibn Awf, Ubaydullah ibn
Abdullah ibn Utba ibn Masud, and Sulayman ibn Yasarall say, that they
had heard Abu Hurayra say that he had heard Umar ibn al-Khattab say,
"If a woman is divorced by her husband once or twice, and he leaves
her until she is free to marry and she marries another husband and he
dies or divorces her, and then she marries her first husband, she is
with him according to what remains of her divorce."
Malik said, "That is what is done
among us and there is no dispute about it."
--------------------------------------------------------------------------------
Book 29, Number 29.28.78:
Yahya related to me from Malik from Thabit ibn al-Ahnaf that he married
an umm walad of Abd ar-Rahman ibn Zayd ibn al-Khattab. He said, "Abdullah
ibn Abd ar-Rahman ibn Zayd ibn al-Khattab summoned me and I went to
him. I came in upon him and there were whips and two iron fetters placed
there, and two of his slaves whom he had made to sit there. He said,
'Divorce her, or by He by whom one swears, I will do such-and-such to
you!' I said, 'It is divorce a thousand times.' Then I left him and
I saw Abdullah ibn Umar on the road to Makka and I told him about my
situation. Abdullah ibn Umar was furious, and said, 'That is not divorce,
and she is not haram for you, so return to your home.' I was still not
at ease so I went to Abdullah ibn az-Zubayr who was the Amir of Makka
at that time. I told him about my situation and what Abdullah ibn Umar
had said to me. Abdullah ibn az-Zubayr said to me, 'She is not haram
for you, so return to your home,' and he wrote to Jabir ibn al-Aswad
az-Zuhra who was the Amir of Madina and ordered him to punish Abdullah
ibn Abdar-Rahman and to have him leave me and my family alone. I went
to Madina, and Safiyya, the wife of Abdullah ibn Umar fitted out my
wife so that she could bring her to my house with the knowledge of Abdullah
ibn Umar. Then I invited Abdullah ibn Umar on the day of my wedding
to the wedding feast and he came."
--------------------------------------------------------------------------------
Book 29, Number 29.28.79:
Yahya related to me from Malik that Abdullah ibn Dinar said, "I
heard Abdullah ibn Umar recite from the Qur'an, 'Prophet! When you divorce
women, divorce them at the beginning of their idda.'"
Malik said, "He meant by that, to
make one pronouncement of divorce at the beginning of each period of
purity."
--------------------------------------------------------------------------------
Book 29, Number 29.28.80:
Yahya related to me from Malik from Hisham ibn Urwa that his father
said, "It used to be that a man would divorce his wife and then
return to her before her idda was over, and that was alright, even if
he divorced her a thousand times. The man went to his wife and then
divorced her and when the end of her idda was in sight, he took her
back and then divorced her and said, 'No! By Allah, I will not go to
you and you will never be able to marry again.' Allah, the Blessed,
the Exalted, sent down, 'Divorce is twice, then honourable retention
or setting free kindly.' People then turned towards divorce in a new
light from that day whether or not they were divorced or not divorced."
--------------------------------------------------------------------------------
Book 29, Number 29.28.81:
Yahya related to me from Malik from Thawr ibn Zayd ad-Dili that Allah,
the Blessed, the Exalted, sent down about a man who divorced his wife
and then returned to her while he had no need of her and did not mean
to keep her so as to make the idda period long for her by that in order
to do her harm, "Do not retain them by force, to transgress. Whoever
does that has wronged himself." (Sura 2 ayat 231). Allah warns
them by that ayat.
--------------------------------------------------------------------------------
Book 29, Number 29.28.82:
Yahya related to me from Malik that he had heard that Said ibn al-Musayyab
and Sulayman ibn Yasar were asked about a man who divorced when he was
drunk. They said, "When a drunk man divorces, his divorce is allowed.
If he kills, he is killed for it."
Malik said, "That is what is done
among us."
Yahya related to me from Malik that he
had heard that Said ibn al-Musayyab said, "If a man does not find
the means to spend on his wife, they are to be separated . "
Malik said, "That is what I saw the
people of knowledge in our city doing."
29.30 Idda of Widows when Pregnant
Section: Idda of Widows when Pregnant
--------------------------------------------------------------------------------
Book 29, Number 29.29.83:
Yahya related to me from Malik from Abdu Rabbih ibn Said ibn Qays that
Abu Salama ibn Abd ar-Rahman said that Abdullah ibn Abbas and Abu Hurayra
were asked when a pregnant woman whose husband had died could remarry.
Ibn Abbas said, "At the end of two periods." Abu Hurayra said,
"When she gives birth, she is free to marry." Abu Salama ibn
Abd ar-Rahman visited Umm Salama, the wife of the Prophet, may Allah
bless him and grant him peace, and asked her about it Umm Salama said,
''Subaya al-Aslamiya gave birth half a month after the death of her
husband, and two men asked to marry her. One was young and the other
was old. She preferred the young man and so the older man said, 'You
are not free to marry yet.' Her family were away and he hoped that when
her family came, they would give her to him. She went to the Messenger
of Allah, may Allah bless him and grant him peace, and he said, 'You
are free to marry, so marry whomever you wish.' "
--------------------------------------------------------------------------------
Book 29, Number 29.29.84:
Yahya related to me from Malik from Nafi that Abdullah ibn Umar was
asked about a woman whose husband died while she was pregnant, and he
said, "When she gives birth, she is free to marry." A man
of the Ansar who was with him told him that Umar ibn al-Khattab had
said, "Had she given birth while her husband was still on his bed,
unburied, she would be free to marry."
--------------------------------------------------------------------------------
Book 29, Number 29.29.85:
Yahya related to me from Malik from Hisham ibn 'Urwa from his father
that al-Miswar ibn Makhrama told him that Subaya al-Aslamiya gave birth
a few nights after the death of her husband. The Messenger of Allah,
may Allah bless him and grant him peace, said to her, "You are
free to marry, so marry whomever you wish."
--------------------------------------------------------------------------------
Book 29, Number 29.29.86:
Yahya related to me from Malik from Yahya ibn Said from Sulayman ibn
Yasar that Abdullah ibn Abbas and Abu Salama ibn Abd ar-Rahman ibn Awf
differed on the question of a wornan who gave birth a few nights after
the death of her husband. Abu Salama said, "When she gives birth
to the child she is carrying, she is free to marry." Ibn Abbas
said, "At the end of two periods." Abu Hurayra came and said,
"I am with my nephew", meaning Abu Salama. They sent Kurayb,
a mawla of Abdullah ibn Abbas to Umm Salama, the wife of the Prophet,
may Allah bless him and grant him peace, to ask her about it. He came
back and told them that she had said that Subaya al-Aslamiya had given
birth a few nights after the death of her husband, and she had brought
the matter to the Messenger of Allah, may Allah bless him and grant
him peace, and he had said, "You are free to marry, so marry whomever
you wish."
Malik said, "This is how the people
of knowledge here continue to act."
29.31 Widows Remaining in Their Houses
until Free to Marry
--------------------------------------------------------------------------------
Book 29, Number 29.29.87:
Yahya related to me from Malik from Said ibn Ishaq ibn Kab ibn Ujra
from his paternal aunt, Zaynab bint Kab ibn Ujra that al-Furaya bint
Malik ibn Sinan, the sister of Abu Said al-Khudri, informed her that
she went to the Messenger of Allah, may Allah bless him and grant him
peace, and asked to be able to return to her people among the Banu Khudra
since her husband had gone out in search of some of his slaves who had
run away and he had caught up with them near al-Qudum, (which is 6 miles
from Madina), and they had killed him.
She said, "I asked the Messenger of
Allah, may Allah bless him and grant him peace, if I could return to
my people in the Banu Khudra, as my husband had not left me in a dwelling
which belonged to him, and had left me no maintenance. The Messenger
of Allah, may Allah bless him and grant him peace, said,'Yes.' So I
left. When I was in the courtyard, the Messenger of Allah, may Allah
bless him and grant him peace, called me or summoned me, and I answered
him. He said, 'What did you say?' I repeated the story about my husband.
He said, 'Stay in your house until what is written reaches its term.'
I did the idda in the house for four months and ten days."
She added, "When Uthman ibn Affan
sent for me, I told him that, and he followed it and made decisions
by it."
--------------------------------------------------------------------------------
Book 29, Number 29.29.88:
Yahya related to me from Malik from Humayd ibn Qays al-Makki from Amr
ibn Shuayb from Said ibn al-Musayyab that Umar ibn al-Khattab sent back
widows from the desert and prevented them from doing the hajj.
Yahya related to me from Malik from Yahya
ibn Saqd that he had heard that as-Sa'ib ibn Khabbab died, and his wife
went to Abdullah ibn Umar and mentioned to him that her husband had
died and mentioned some land which they had at Qanah, (a district on
the outskirts of Madina), and asked him if it would be alright for her
to stay overnight there. He forbade her to do so. So, she went out before
dawn from Madina and spent the whole day on their land, but when evening
came, she spent the night in her house.
--------------------------------------------------------------------------------
Book 29, Number 29.29.89:
Yahya related to me from Malik that Hisham ibn Urwa said about a Bedouin
woman whose husband died, that she was to stay where her people stayed.
Malik said, "This is what is done
among us."
--------------------------------------------------------------------------------
Book 29, Number 29.29.90:
Yahya related to me from Malik from Nafi that Abdullan ibn Umar said,
"The only place a woman whose husband has died and a woman who
is absolutely divorced can spend the night is in their houses."
Section: Idda of an Umm Walad when Her
Master Dies
--------------------------------------------------------------------------------
Book 29, Number 29.30.91:
Yahya related to me from Malik that Yahya ibn Said said that he had
heard al-Qasim ibn Muhammad say that Zayd ibn Abd al-Malik separated
some men and their wives who were slave-girls who had borne children
to men who had died, because they had married them after one or two
menstrual periods. He separated them until they had done an idda of
four months and ten days. Al-Qasim ibn Muhammad said, "Glory be
to Allah! Allah says in His Book, 'Those of you who die, leaving wives,
they are not wives.' "
--------------------------------------------------------------------------------
Book 29, Number 29.30.92:
Malik related to me from Nafi that Abdullah ibn Umar said, "The
idda of an umm walad when her master dies is one menstrual period."
Yahya related to me from Malik from Yahya
ibn Said that al-Qasim ibn Muhammad said, "The idda of an umm walad
when her master dies is one menstrual period."
Malik said, "This is what is done
among us."
Malik added, "If she does not have
a menstrual period, her idda is three months."
Section: Idda of Slave-Girls whose Master
or Husband Dies
--------------------------------------------------------------------------------
Book 29, Number 29.31.93:
Yahya related to me from Malik that he had heard that Said ibn al-Musayyab
and Sulayman ibn Yasar said, "The idda of a slave-girl when her
husband dies is two months and five days."
--------------------------------------------------------------------------------
Book 29, Number 29.31.94:
Yahya related to me the like of that from Malik from Ibn Shihab.
Malik said, about a slave who divorced
a slave-girl but did not make it absolute, "He can return to her.
If he then dies while she is still in the idda from her divorce, she
does the idda of a slave-girl whose husband dies, and it is two months
and five days. If she has been set free and he can return to her, and
she does not choose to separate after she has been set free, and he
dies while she is in the idda from the divorce, she does the idda of
a free woman whose husband has died, four months and ten days. That
is because the idda of widowhood befell her while she was free, so her
idda is the idda of a free woman."
Malik said, "That is what is done
among us."
Section: Coitus Interruptus
--------------------------------------------------------------------------------
Book 29, Number 29.32.95:
Yahya related to me from Malik from Rabia ibn Abi Abd ar-Rahman from
Muhammad ibn Yahya ibn Habban that Ibn Muhayriz said, "I went into
the mosque and saw Abu Said al-Khudri and so I sat by him and asked
him about coitus interruptus. Abu Said al-Khudri said, 'We went out
with the Messenger of Allah, may Allah bless him and grant him peace,
on the expedition to the Banu al-Mustaliq. We took some Arabs prisoner,
and we desired the women as celibacy was hard for us. We wanted the
ransom, so we wanted to practise coitus interruptus. We said, 'Shall
we practise coitus interruptus while the Messenger of Allah, may Allah
bless him and grant him peace, is among us before we ask him?' We asked
him about that and he said, 'You don't have to not do it. There is no
self which is to come into existence up to the Day of Rising but that
it will come into existence.' "
--------------------------------------------------------------------------------
Book 29, Number 29.32.96:
Yahya related to me from Malik from Abu'n-Nadr, the mawla of Umar ibn
Ubaydullah from Amir ibn Sad ibn Abi Waqqas from his father that he
used to practise coitus interruptus.
--------------------------------------------------------------------------------
Book 29, Number 29.32.97:
Yahya related to me from Malik from Abu'n-Nadr, the mawla of Umar ibn
Ubaydullah from Ibn Aflah, the mawla of Abu Ayyub al-Ansari from an
umm walad of Abu Ayyubal-Ansari that he practised coitus interruptus.
--------------------------------------------------------------------------------
Book 29, Number 29.32.98:
Yahya related to me from Malik from Nafi that Abdullah ibn Umar did
not practise coitus interruptus and thought that it was disapproved.
--------------------------------------------------------------------------------
Book 29, Number 29.32.99:
Yahya related to me from Malik from Damra ibn Said al-Mazini from al-Hajjaj
ibn Amr ibn Ghaziya that he was sitting with Zayd ibn Thabit when Ibn
Fahd came to him. He was from the Yemen. He said, "Abu Said! I
have slave-girls. None of the wives in my keep are more pleasing to
me than them, and not all of them please me so much that I want a child
by them, shall I then practise coitus interruptus?" Zayd ibn Thabit
said, "Give an opinion, Hajjaj!" "I said, 'May Allah
forgive you! We sit with you in order to learn from you!' He said, 'Give
an opinion! 'I said, 'She is your field, if you wish, water it, and
if you wish, leave it thirsty. I heard that from Zayd.' Zayd said, 'He
has spoken the truth.' "
--------------------------------------------------------------------------------
Book 29, Number 29.32.100:
Yahya related to me from Malik from Humayd ibn Qays al-Makki that a
man called Dhafif said that Ibn Abbas was asked about coitus interruptus.
He called a slave-girl of his and said, "Tell them." She was
embarrassed. He said, "It is alright, and I do it myself."
Malik said, "A man does not practise
coitus interruptus with a free woman unless she gives her permission.
There is no harm in practising coitus interruptus with a slave-girl
without her permission. Someone who has someone else's slave-girl as
a wife, does not practise coitus interruptus with her unless her people
give him permission."
Section: Limit of Abstaining from Adornment
in Mourning
--------------------------------------------------------------------------------
Book 29, Number 29.33.101:
Yahya related to me from Malik from Abdullah ibn Abi Bakr ibn Muhammad
ibn Amr ibn Hazm from Humayd ibn Nafi that Zaynab bint Abi Salama related
these three traditions to him. Zaynab said, "I visited Umm Habiba,
the wife of the Prophet, may Allah bless him and grant him peace, when
her father Abu Sufyan ibn Harb had died. Umm Habiba called for a yellowy
perfume perhaps khaluq or something else. She rubbed the perfume first
on a slave-girl and she then wiped it on the sides of her face and said,
'By Allah! I have no need of perfume but I heard the Messenger of Allah,
may Allah bless him and grant him peace, say, 'It is not halal for a
woman who trusts in Allah and the Last Day to abstain from adornment
in mourning for someone who has died, for more than three nights, except
for four months and ten days for a husband.' "
--------------------------------------------------------------------------------
Book 29, Number 29.33.102:
Zaynab said, "I went to the house of Zaynab bint Jahsh, the wife
of the Prophet, may Allah bless him and grant him peace, when her brother
had died. She called for perfume and put some on and said, 'By Allah!
I have no need of perfume, but I heard the Messenger of Allah, may Allah
bless him and grant him peace, say, 'It is not halal for a woman who
trusts in Allah and the Last Day to abstain from adornment in mourning
for someone who has died for more than three nights, except for four
months and ten days for a husband.' "
--------------------------------------------------------------------------------
Book 29, Number 29.33.103:
Zaynab said, "I heard my mother, Umm Salama, the wife of the Prophet,
may Allah bless him and grant him peace, say that a woman came to the
Messenger of Allah, may Allah bless him and grant him peace, and said,
'Messenger of Allah! My daughter's husband died, and her eyes are troubling
her, can she put kohl on them?' The Messenger of Allah, may Allah bless
him and grant him peace, said, 'No' two or three times. Then he said,
'It is only four months and ten days. In the Jahiliyya, none of you
threw away the piece of dung until a year had passed.' "
Humayd ibn Nafi said, "I asked Zaynab
to explain what 'throwing away the piece of dung at the end of a year'
meant. Zaynab said, 'In the Jahiliyya when a woman's husband died, she
went into a small tent and dressed in the worst of clothes. She did
not touch perfume or anything until a year had passed. Then she was
brought an animal - a donkey, a sheep, or a bird, and she would break
her idda with it, by rubbing her body against it (taftaddu). Rarely
did she break her idda with anything (by rubbing herself against it)
but that it died. Then she would come out and would be given a piece
of dung. She would throw it away and then return to whatever she wished
of perfumes or whatever.' "
Malik explained, 'Taftaddu' means to wipe
her skin with it in the same way as with a healing charm."
--------------------------------------------------------------------------------
Book 29, Number 29.33.104:
Yahya related to me from Malik from Nafi from Safiyya bint Abi Ubayd
from A'isha and Hafsa, the wives of the Prophet, may Allah bless him
and grant him peace, that the Messenger of Allah, may Allah bless him
and grant him peace, said, "It is not halal for a woman in mourning
for someone who has died, if she trusts in Allah and the Last Day, to
abstain from adornment for more than three nights, except for a husband."
--------------------------------------------------------------------------------
Book 29, Number 29.33.105:
Yahya related to me from Malik that he had heard that Umm Salama, the
wife of the Prophet, may Allah bless him and grant him peace, said to
a woman in mourning for her husband whose eyes were troubling her and
the pain had become very strong, "Apply jala kohl at night and
wipe it off in the day."
--------------------------------------------------------------------------------
Book 29, Number 29.33.106:
Yahya related to me from Malik that he had heard that Salim ibn Abdullah
and Sulayman ibn Yasar said that if a woman whose husband had died feared
that an inflammation of her eyes might affect her sight or that some
complaint might befall her, she should put kohl on and seek a remedy
with kohl or some other cure even if it had perfume in it.
Malik said, "If there is a necessity,
the deen of Allah is ease."
--------------------------------------------------------------------------------
Book 29, Number 29.33.107:
Yahya related to me from Malik from Nafic that Saffiyya bint Abi Ubayd
suffered from an eye-complaint while she was in mourning for her husband,
Abdullah ibn Umar. She did not apply kohl until her eyes almost had
ramas (a dry white secretion in the corners of the eye).
Malik said, "A woman whose husband
has died should anoint her eyes with olive oil and sesame oil and the
like of that since there is no perfume in it."
Malik said, "A woman in mourning for
her husband should not put on any jewellery - rings, anklets, or such-like,
neither should she dress in any sort of colourful, striped garment unless
it is coarse. She should not wear any cloth dyed with anything except
black, and she should only dress her hair with things like lotus-tree
leaves which do not dye the hair."
--------------------------------------------------------------------------------
Book 29, Number 29.33.108:
108 Yahya related to me from Malik that he had heard that the Messenger
of Allah, may Allah bless him and grant him peace, visited Umm Salama
while she was in mourning for Abu Salama and she had put aloes on her
eyes. He said, "What is this, Umm Salama?" She said, "It
is only aloes, Messenger of Allah." He said, "Put it on at
night and wipe it off in the daytime."
Malik said, "The mourning of a young
girl who has not yet had a menstrual period takes the same form as the
mourning of one who has had a period. She avoids what a mature woman
avoids if her husband dies."
Malik said, "A slave-girl mourns her
husband when he dies for two months and five nights like her idda.''
Malik said, "An umm walad does not
have to mourn when her master dies, and a slave-girl does not have to
mourn when her master dies. Mourning is for those with husbands."
--------------------------------------------------------------------------------
Book 29, Number 29.33.109:
Yahya related to me from Malik that he had heard that Umm Salama, the
wife of the Prophet, may Allah bless him and grant him peace, said,
"A mourning woman can rub her head with lotus leaves and olive
oil.''
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