بَابُ الْعُبْدِ وَالآمَةِ

Al-Aswad narrated: Aishah (may Allah be pleased with her) purchased Barirah to free her, but her owners stipulated her clientage (wala’). She said, “O Messenger of Allah, I bought Barirah to free her, but her owners stipulated her clientage.” He said, “Free her, for clientage belongs to the one who frees or pays the price.” So, she bought her and freed her. He said, “She was given the choice (1) regarding herself,” and she chose herself, saying, “Even if I were given such and such, I would not stay with him.” Al-Aswad said, “Her husband was a free man.” Narrated by Bukhari.

In another narration by him, similar, and in it, Al-Hakam said, “Her husband was a free man.”

Muslim narrated from Shu‘bah, from Abdul Rahman ibn al-Qasim, who heard Al-Qasim narrate from Aishah (may Allah be pleased with her) that she wanted to buy Barirah for emancipation, but they stipulated her clientage. She mentioned this to the Messenger of Allah (ﷺ), and he said, “Buy her and free her, for clientage belongs to the one who frees.” Meat was gifted to the Messenger of Allah (ﷺ), and they said to the Prophet (ﷺ), “This was given as charity to Barirah.” He said, “It is charity for her and a gift for us,” and she was given the choice.

Abdul Rahman said, “Her husband was a free man.” Shu‘bah said, “Then I asked him about her husband, and he said, ‘I do not know.’” Abu Dawud narrated from Al-Aswad, from Aishah (may Allah be pleased with her), that Barirah’s husband was free when she was emancipated, and she was given the choice. She said, “I would not like to stay with him even if I were given such and such.”

In Tirmidhi’s narration, she said, “Barirah’s husband was a slave,” and the Messenger of Allah (ﷺ) gave her the choice. Ibn Majah and An-Nasa’i narrated from Al-Aswad, from Aishah (may Allah be pleased with her), that she freed Barirah, and the Messenger of Allah (ﷺ) gave her the choice, and she had a free husband.

Al-Tahawi and Ibn Abi Shaybah narrated from Tawus that he said, “A slave woman has the choice upon emancipation, even if she is married to a Qurayshi.” In another narration by them from him, he said, “She has the choice whether the husband is free or a slave.” Ibn Abi Shaybah narrated from Ibn Sirin and Ash-Sha‘bi similarly. In another narration by him from Mujahid, he said, “She has the choice, even if she were married to the Commander of the Faithful.”

(1) The statement: “She was given the choice regarding herself, etc.”: This choice is called the choice of emancipation, exclusive to a slave woman, whether partially freed, under a contract, or young or old, whether her husband at the time of emancipation is free or a slave, though Ash-Shafi‘i differs regarding a free husband. The author of Al-Hidayah said: If a slave woman marries with her master’s permission, or her husband marries her with or without her consent, then she is freed, she has the choice, whether her husband is free or a slave. But if she marries herself without his permission, then is freed, the marriage is validated by emancipation, and she has no choice. Ash-Shafi‘i differs with us when her husband is free, saying she has no choice, as does Malik. Thus, Ash-Shafi‘i said: If she is freed, she has the choice, but if he is freed, she has no choice.

Abu Hanifah said: She has the choice in both cases. The basis is the Hadith of Barirah, Aishah’s freedwoman. When Aishah freed her, the Prophet (ﷺ) said to her, “Your private parts are freed, so choose,” as narrated by Ibn Sa‘d in At-Tabaqat. Ad-Daraqutni narrated that he said to Barirah, “Go, for your private parts are freed with you.” In the Sahihayn and elsewhere, Aishah narrated that the Messenger of Allah (ﷺ) gave her the choice regarding her husband, and she chose herself.

The narrations differ on whether her husband, named Mughith, who was unanimously a slave before, was free or a slave at her emancipation. Bukhari and the Sunan compilers narrated from Ibrahim, from Al-Aswad, from Aishah, the story of Barirah, and at its end, Al-Aswad said, “Her husband was a free man.” They also narrated from ‘Ikrimah, from Ibn Abbas, that Barirah’s husband was a black slave named Mughith. The Shafi‘is relied on narrations of his slavery, assuming she has no choice if freed under a free husband. Our scholars preferred the narrations of his freedom, as they are based on observation and certainty, while the narration of his slavery relies on the presumption of continuity. Some reconciled them, saying the narration of slavery refers to his prior state, and the narration of freedom to his later state, thus affirming the choice in both cases, which is stronger in reasoning and evidence. They supported this with Ad-Daraqutni and Ibn Sa‘d’s Hadith, indicating that the choice stems from ownership of private parts, reinforced by their established rule on divorce counts, as mentioned earlier and later. A slave woman is separated by two divorces, whether her husband is free or a slave, while a free woman is separated by three, whether her husband is free or a slave. Thus, after emancipation, she has the choice in both cases to avoid additional ownership over her.

Ibn al-Humam said: The root of the disagreement lies in preferring one of the conflicting narrations about Barirah’s husband, whether he was free or a slave when she was freed. The preference is for him being free because the narrators from Aishah are three: Al-Aswad, Urwah, and Ibn al-Qasim. Al-Aswad’s narration is undisputed that he was free. Urwah has two authentic narrations: free and slave. Abdul Rahman ibn al-Qasim has two authentic narrations: free and uncertain. Certainty prevails, and there is no preference between Urwah’s narrations due to their conflict, leaving Al-Aswad’s narration intact, along with Ibn al-Qasim’s certain narration. Another perspective for preference, not specific to Aishah’s narrations, is that the narration “she was given the choice, and her husband was a slave” may mean the conjunction is not for the state. In essence, it reports both facts, and his being a slave does not necessitate that he was so at her emancipation. This allows the possibility that “slave” is used metaphorically for a freed slave, as is common in custom. The undeniable preference is that the narration “he was free” is clearer than “he was a slave” and adds detail, so it is preferred. Another perspective is that the affirmative prevails over the negative, as noted by the scholars of principles here. Another is Ad-Daraqutni’s narration from her that he said to Barirah, “Go, for your private parts are freed with you,” justified by the choice stemming from ownership of private parts, generalizing the ruling by the generality of the cause. This perspective is free from conflict, as summarized from Umdat ar-Ri‘ayah, Al-Marqah, and Fath al-Qadir.

In Umdat al-Qari, it is said: The statement in a narration, “I saw him a slave,” referring to Barirah’s husband, does not indicate he was a slave when Barirah was freed, as it likely reports that he was a slave. Thus, it does not support the argument. The accurate approach is to say: Their disagreement is about two mutually exclusive attributes, so we assign them to two states, slave in one state, free in another. Necessarily, one state follows the other. It is known that slavery precedes freedom, and freedom does not revert to slavery, which is undisputed. Thus, we assign slavery to the earlier state and freedom to the later. This establishes that he was free when Barirah was given the choice and a slave before that. Those who said he was a slave refer to the earlier state, and those who said he was free refer to the later state. Thus, no conflict remains, and the opinion that he was free is established, so the ruling is attached to it. Even if we concede that all narrations report him as a slave, it does not prove the view that if a slave woman’s husband is free and she is freed, she has no choice, as there is no indication of that. It is not reported that he said, “She was given the choice because her husband was a slave,” which is absent from the narrations. Thus, it is established that she was given the choice because she was freed, so it is the same whether her husband is free or a slave.

And in Bukhari's most common narration, it is somewhat like this, and in this narration, it is said that Kahan's husband was having intercourse.

that the Mother of the Believers intended to purchase a slave girl to manumit her. Her mother stipulated her right and condition. The Mother of the Believers mentioned this to the Messenger of Allah ﷺ, and he ﷺ commanded her: 'Purchase her and manumit her, for the right of manumission belongs to the one who frees (the slave or slave girl). When meat was presented to the Messenger of Allah ﷺ, those present mentioned to him ﷺ that it was given as charity. He ﷺ said: 'It is charity, and this is for us to eat.' And he gave her (the slave girl) the choice to remain with her husband after being manumitted or not. 'Abd ar-Rahman said: 'Her husband manumitted her.' Shu'bah said: 'I asked 'Abd ar-Rahman about her husband, and he replied: 'I do not know.'

Aishah (may Allah be pleased with her) narrated: Barirah was freed while she was with Mughith, and the Messenger of Allah (ﷺ) gave her the choice and said to her, “If he is intimate with you (1), you have no choice.” Narrated by Abu Dawud.

(1) The statement: “If he is intimate with you, you have no choice”: Al-Shawkani said: This is evidence that the choice of an emancipated woman is delayed, and it is nullified if she allows her husband intimacy. This is the view of Malik, Abu Hanifah, and Ahmad, and one opinion of Ash-Shafi‘i. He has another opinion that it is immediate, and in another narration, it lasts three days, or upon rising from the judge’s assembly, or her own assembly. These two opinions are held by the Hanafis, but the first is apparent due to the unrestricted granting of the choice until she allows intimacy. This is supported by Ahmad’s narration from the Prophet (ﷺ): “When a slave woman is freed, she has the choice as long as he does not have intercourse with her. If she wishes, she may leave him, but if he has intercourse with her, she has no choice and cannot leave.” Ad-Daraqutni narrated, “If he has intercourse with you, you have no choice.” In Rahmat al-Ummah: If a woman is freed and her husband is a slave, the choice is established according to Abu Hanifah as long as she remains in the assembly where she learned of her emancipation. If she learns of it and allows him intercourse, it is consent. Ash-Shafi‘i has opinions: the soundest is that she has the choice immediately, the second is for three days, and the third is as long as she does not allow him intercourse. If she is freed and her husband is free, she has no choice according to Malik, Ash-Shafi‘i, and Ahmad. Abu Hanifah said her choice is established even if he is free.

Aishah (may Allah be pleased with her) narrated: Barirah was freed while she was with Mughith, and the Messenger of Allah (ﷺ) gave her the choice and said to her, “If he is intimate with you (1), you have no choice.” Narrated by Abu Dawud.

(1) The statement: “If he is intimate with you, you have no choice”: Al-Shawkani said: This is evidence that the choice of an emancipated woman is delayed, and it is nullified if she allows her husband intimacy. This is the view of Malik, Abu Hanifah, and Ahmad, and one opinion of Ash-Shafi‘i. He has another opinion that it is immediate, and in another narration, it lasts three days, or upon rising from the judge’s assembly, or her own assembly. These two opinions are held by the Hanafis, but the first is apparent due to the unrestricted granting of the choice until she allows intimacy. This is supported by Ahmad’s narration from the Prophet (ﷺ): “When a slave woman is freed, she has the choice as long as he does not have intercourse with her. If she wishes, she may leave him, but if he has intercourse with her, she has no choice and cannot leave.” Ad-Daraqutni narrated, “If he has intercourse with you, you have no choice.” In Rahmat al-Ummah: If a woman is freed and her husband is a slave, the choice is established according to Abu Hanifah as long as she remains in the assembly where she learned of her emancipation. If she learns of it and allows him intercourse, it is consent. Ash-Shafi‘i has opinions: the soundest is that she has the choice immediately, the second is for three days, and the third is as long as she does not allow him intercourse. If she is freed and her husband is free, she has no choice according to Malik, Ash-Shafi‘i, and Ahmad. Abu Hanifah said her choice is established even if he is free.

When a slave woman is freed, she has the choice to maintain or terminate her marriage. If she wishes, she may marry a Quraishi.

a woman has the choice to maintain or terminate the marriage, whether her husband is free or a slave.

Aishah (may Allah be pleased with her) narrated: Barirah was freed while she was with Mughith, and the Messenger of Allah (ﷺ) gave her the choice and said to her, “If he is intimate with you (1), you have no choice.” Narrated by Abu Dawud.

(1) The statement: “If he is intimate with you, you have no choice”: Al-Shawkani said: This is evidence that the choice of an emancipated woman is delayed, and it is nullified if she allows her husband intimacy. This is the view of Malik, Abu Hanifah, and Ahmad, and one opinion of Ash-Shafi‘i. He has another opinion that it is immediate, and in another narration, it lasts three days, or upon rising from the judge’s assembly, or her own assembly. These two opinions are held by the Hanafis, but the first is apparent due to the unrestricted granting of the choice until she allows intimacy. This is supported by Ahmad’s narration from the Prophet (ﷺ): “When a slave woman is freed, she has the choice as long as he does not have intercourse with her. If she wishes, she may leave him, but if he has intercourse with her, she has no choice and cannot leave.” Ad-Daraqutni narrated, “If he has intercourse with you, you have no choice.” In Rahmat al-Ummah: If a woman is freed and her husband is a slave, the choice is established according to Abu Hanifah as long as she remains in the assembly where she learned of her emancipation. If she learns of it and allows him intercourse, it is consent. Ash-Shafi‘i has opinions: the soundest is that she has the choice immediately, the second is for three days, and the third is as long as she does not allow him intercourse. If she is freed and her husband is free, she has no choice according to Malik, Ash-Shafi‘i, and Ahmad. Abu Hanifah said her choice is established even if he is free.

Aishah (may Allah be pleased with her) narrated: Barirah was freed while she was with Mughith, and the Messenger of Allah (ﷺ) gave her the choice and said to her, “If he is intimate with you (1), you have no choice.” Narrated by Abu Dawud.

(1) The statement: “If he is intimate with you, you have no choice”: Al-Shawkani said: This is evidence that the choice of an emancipated woman is delayed, and it is nullified if she allows her husband intimacy. This is the view of Malik, Abu Hanifah, and Ahmad, and one opinion of Ash-Shafi‘i. He has another opinion that it is immediate, and in another narration, it lasts three days, or upon rising from the judge’s assembly, or her own assembly. These two opinions are held by the Hanafis, but the first is apparent due to the unrestricted granting of the choice until she allows intimacy. This is supported by Ahmad’s narration from the Prophet (ﷺ): “When a slave woman is freed, she has the choice as long as he does not have intercourse with her. If she wishes, she may leave him, but if he has intercourse with her, she has no choice and cannot leave.” Ad-Daraqutni narrated, “If he has intercourse with you, you have no choice.” In Rahmat al-Ummah: If a woman is freed and her husband is a slave, the choice is established according to Abu Hanifah as long as she remains in the assembly where she learned of her emancipation. If she learns of it and allows him intercourse, it is consent. Ash-Shafi‘i has opinions: the soundest is that she has the choice immediately, the second is for three days, and the third is as long as she does not allow him intercourse. If she is freed and her husband is free, she has no choice according to Malik, Ash-Shafi‘i, and Ahmad. Abu Hanifah said her choice is established even if he is free.