كتاب الطلاقDivorce

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."

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."

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."

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

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."

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."

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."

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.

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."

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."

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."

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."

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."

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.

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.

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.

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."

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."

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."

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.

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."

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."

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."

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."

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.

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.' "

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."

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.

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.

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.

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."

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.

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."

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."

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)."

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.

Yahya related to me from Malik that he had heard that `Urwa ibn az-Zubayr said that if the child of the woman against whom li`an 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."

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.' "

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.' "

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."

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.

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.

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."

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."

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."

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."

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."

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."

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."

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."

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.

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."

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."

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."

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."

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 .' "

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."

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."

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."

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."

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."

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."

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.)

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."

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.)

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.

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.

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."

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."

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."

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 . "

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."

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."

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 "

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."

"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."

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."

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."

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.' "

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."

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."

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."

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."

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.

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

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.' "

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."

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."

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

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."

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.

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."

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."

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.' "

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."

Malik said, "This is what is

done among us."

Malik added, "If she does not have a

menstrual period, her idda is three months."

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."

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."

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.' "

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.

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.

Yahya related to me from Malik from Nafi that Abdullah ibn Umar

did not practise coitus interruptus and thought that it was

disapproved.

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.' "

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."

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.'

"

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.' "

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."

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."

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."

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."

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."

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."

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.''