بَابُ الْقَسَمِFair Division Between Wives

¹ The statement: “He divided among them, etc.”: Thus, in Sharh al-Wiqayah, it is said: Justice in division is obligatory.

¹ The statement: I used to herd them for some carats for the people of Makkah, this narration proves the permissibility of hiring for herding sheep, and by extension, other animals are included in this permissibility. As stated in Nayl Al-Awtar. It is also said in Al-Marqah: It indicates the hiring of free individuals.

¹ The statement: The lifelong gift is permissible, In Ad-Durr Al-Mukhtar: The lifelong gift is valid for the recipient and their heirs after them due to the invalidity of the condition. In Al-Marqah: An-Nawawi said: Our scholars stated that the lifelong gift has three scenarios. First: If someone says, “I grant you this house for your lifetime, and after your death, it goes to your heirs or descendants,” it is valid without dispute, and the recipient owns the house’s title, as it is a gift. After their death, it goes to their heirs, or else to the public treasury, and it never reverts to the giver. Second: If they say only, “I grant it to you for your lifetime,” without mentioning anything else, Shafi’i has two opinions. The sounder and newer opinion is that it is valid, with the same ruling as the first scenario. Third: If they say, “I grant it to you for your lifetime, and after your death, it reverts to me or my heirs,” its validity is disputed. The sounder view among us is that it is valid, with the same ruling as the first scenario, relying on the unrestricted narrations and deviating from the analogy of conditions. Ahmad said: The unrestricted lifelong gift is valid, but not the time-bound one. Malik said: In all cases, the lifelong gift grants ownership of the house’s benefits, not its title. Abu Hanifah’s view aligns with ours. As stated in Umdat Al-Qari.

¹ The statement: “Do not blame me for what You control and I do not”: Meaning, for excess love and inclination of the heart, as You are the Turner of hearts. Ibn al-Humam said: Its apparent meaning is that what is within his control and power, other than that, requires equality. This includes the number of intimacies and kisses, though equality in them is not required by consensus, as in Al-Marqah. In Radd al-Muhtar: In Al-Khaniyyah, among the duties of husbands toward wives is justice and equality in what he controls, and staying with them for companionship and affection, not in what he does not control, which is love and intercourse.

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.

¹ The statement: “And lawful to you is what is beyond that, that you seek with your wealth”: This verse indicates that marriage requires a dowry, which is obligatory even if not specified, that non-wealth cannot be a dowry, and that a small amount is not suitable as a dowry, as a single grain is not considered wealth, as stated in Al-Madarak.

² The statement: “We know what We have ordained for them concerning their wives”: This refutes Ash-Shafi‘i’s view that the dowry is not specified by Allah, and its determination is left to the husband’s discretion. Since Allah used the term “ordained,” meaning specification, and attributed it to the speaker’s pronoun, it means what We have specified for them regarding their wives. The verse pertains to dowry, so it is known that the dowry is legally specified by Allah, which is ten dirhams. Any excess is voluntary, and any reduction is prohibited, unlike Ash-Shafi‘i’s view that anything valid as a price in sale is valid as a dowry, whether small or large. The clarification is that “ordained” linguistically means cutting, sometimes used for obligation, sometimes for specification. In legal terminology, it predominantly means specification, becoming a customary term after being transferred. Thus, Fakhr al-Islam asserted that “ordained” is a specific term for a specific meaning, which is specification, and the pronoun is a specific term for the speaker. Thus, it is known that the Sharia’s authority undertakes obligation and specification, and the servant’s specification is compliance. It may be said that the specified amount is not known from the verse, making it general, not specific. The response is that “ordained” is specific, while the ordained amount is general, clarified by the statement: No dowry less than ten dirhams, as in Tafsir al-Ahmadiyyah. In essence, the specified amount is general, clarified by a single report. Al-‘Ayni said: Ash-Shafi‘i said the dowry is her right, so its specification is up to her. We say it is a right of the Sharia, obligatory, so it is specified by what is significant in the Sharia, which is the theft threshold. We say it is specified legally because of His saying: “We know what We have ordained for them concerning their wives” [Al-Ahzab: 50].

³ The statement: “And if you have given one of them a qintar”: This indicates that a dowry can be any amount, as it means a great wealth. It is narrated that Umar said on the pulpit, “Do not exaggerate in women’s dowries.” A woman said to him, “Do we follow your words or Allah’s: ‘And if you have given one of them a qintar, do not take anything from it’ [An-Nisa: 20]?” Umar said, “Everyone is more knowledgeable than Umar,” and said, “Marry with whatever you wish,” as in Tafsir al-Ahmadiyyah.

¹ The statement: “I have given my day with you to Aishah, etc.”: In Al-Hidayah: If one wife agrees to forgo her share for another, it is permissible, per this Hadith. She may retract, as she waived a right not yet due, so it is not forfeited. Ibn al-Humam said: This applies if it is not a bribe from the husband, such as increasing her dowry to do so or marrying her on condition that he marries another and stays with her two days and the addressed one day. Such a condition is void, and the money is unlawful for her in the first case, so he may retract it. If she paid or reduced money for him, it is apparently not binding, unlawful for her, and she may retract her money.

¹ The statement: “When he intended to travel, he drew lots among his wives, etc.”: Meaning, they have no right to division during travel, so the husband travels with whichever he wishes. It is better to draw lots and travel with the one whose lot is drawn. Ash-Shafi‘i said: Drawing lots is required, meaning obligatory, as it is narrated that the Prophet (ﷺ) drew lots among his wives when intending travel. We say: The drawing of lots in this Hadith is to comfort their hearts, so it is recommended. This is because a wife has no right during her husband’s travel. Does he not have the right to travel without any of them? Likewise, he may travel with one, and that duration is not counted against him, as in Al-Hidayah. In Radd al-Muhtar: There is no division during travel, as it is not feasible unless he takes them all, and requiring that causes evident harm, per An-Nahr. He may trust one for travel and another for residence, or for safeguarding property, or fear fitnah, or one’s excessive weight may prevent travel. Requiring travel with one whose companionship he fears, because her lot came up, imposes severe harm, which is negated by the principle of removing hardship, per Fath. In Al-‘Inayah: They have no right to division during travel. This addresses two issues: First, drawing lots is recommended for us, but required for Ash-Shafi‘i, meaning obligatory. Second, if he travels with one without drawing lots and returns, do the others count that duration? For us, they do not, unlike him. This is based on the first, as if drawing lots is required and he does not do it, the travel duration is the turn of the one with him, so the others should have equivalent turns for justice. We say: Equality is obligatory when division is due, and during travel, it is not, so equality is not required, and that duration is not counted as her turn.

¹ The statement: “I will stay seven with you, etc.”: Based on these Hadiths, our scholars said the new and old wife are equal in division, whether the new is a virgin or previously married. Ash-Shafi‘i said: If she is a virgin, he favors her with seven nights; if previously married, three nights, then equality, citing Abu Hurayrah’s Hadith that the Prophet (ﷺ) said: “Favor the virgin with seven and the previously married with three.” The old wife is accustomed to his companionship and comfortable with him, while the new wife is not, having some shyness and unease, so he should remove that with companionship to equal the old wife in familiarity, then equality follows. A virgin has greater shyness toward men, so she is favored with seven nights. A previously married woman has experienced men but not him specifically, so three nights suffice for her to become familiar with his companionship. Our evidence is that the cause of obligatory equality is their inclusion in his marriage, which is realized by the contract itself. If favoring one were required, the old wife would be more entitled, as her unease is greater, having another brought upon her, which typically angers her. The old wife has greater sanctity due to her service, as it is said: Every new has pleasure, and every old has sanctity. As for the Hadith, it means favoring by starting, not increasing, as in Umm Salamah’s Hadith: “If you wish, I will stay seven with you and seven with them,” and “If you wish, I will stay three with you and rotate,” meaning I will rotate with the same among each of them. We say: The husband may start with the new wife for the pleasure in that, but after equalizing between them, as in Al-Mabsut.

¹ The statement: “And live with them in kindness, etc.”: This means to treat women with kindness, such as providing maintenance, speaking gently, and other good conduct. If you dislike them due to their bad character or appearance, be patient with them and do not separate from them, for in what you dislike, there may be much good, such as abundant reward, righteous offspring, or other benefits. The phrase “perhaps you dislike” is placed as the reason for the implied command to be patient, as explained in Tafsir al-Ahmadiyyah. ² The statement: “And they have rights similar to those against them in a just manner”: This indicates the mutual rights of the husband and wife. The husband’s rights over the wife include her service, respect, refraining from objecting to him, complete obedience to his commands, submission to him in all matters, and not preventing intimacy during menstruation or postpartum. The wife’s rights over the husband include maintenance, clothing, payment of the dowry as specified in fiqh, and teaching her the laws and rulings of the religion. Although the husband and wife are equal in rights, men have a degree over them, meaning an additional right and virtue due to their responsibility for expenditure, authority in marriage, divorce, revocation, inheritance, and similar matters, as in Tafsir al-Ahmadiyyah. ³ The statement: “As for those from whom you fear rebellion”: This refers to their turning away or disobedience. Admonish them by advising them to obey. If advice does not work, forsake them in bed, meaning do not share their blanket, engage in intimacy, or turn your back to them in bed. If forsaking does not work, strike them lightly, without causing harm or injury. If they then obey by ceasing rebellion after admonishment, forsaking, or striking, as clarified in “Then if they obey you” [An-Nisa: 34], do not seek means against them by rebuking or harming them. Instead, remove any blame from them and treat their past actions as if they did not occur, for one who repents from a sin is as one who has no sin. “Indeed, Allah is Exalted, Great” [An-Nisa: 34], meaning He has greater power over you than you have over your wives, as in Tafsir al-Ahmadiyyah.

In Umdat al-Qari, Imam At-Tahawi said: Some said if a man marries a previously married woman, he has the choice to stay seven with her and seven with the others, or three with her and rotate among the rest day by day, night by night. I say: He meant by “some” Ibrahim an-Nakha‘i, ‘Amir ash-Sha‘bi, Malik, Ash-Shafi‘i, Ahmad, Ishaq, Abu Thawr, and Abu ‘Ubayd. He said: Others differed, saying if he stays three with her, three with the others, as if he stays seven with her, seven with the others. I say: He meant by “others” Hammad ibn Abi Sulayman, Al-Hakam ibn ‘Utbah, Abu Hanifah, Abu Yusuf, and Muhammad. They cited Umm Salamah’s Hadith, narrated by At-Tahawi, that the Messenger of Allah (ﷺ) said to her, “If you wish, I will stay seven with you and seven with them,” narrated at length by Ahmad, and longer by At-Tabarani, Abu Ya‘la, and Al-Bayhaqi. At-Tahawi said: When he said to her, “If you wish, I will stay seven with you and seven with them,” meaning I will be just between them and you, giving each seven as I stayed seven with you. Likewise, if he stays three with her, he stays three with each of them. The Shafi‘is said Anas’s Hadith is evidence against the Hanafis. I say: Likewise, Umm Salamah’s Hadith is evidence against the Shafi‘is. The Hanafis also cited Aishah’s Hadith that the Prophet (ﷺ) divided among his wives justly, narrated by the four, recently mentioned, whose apparent meaning requires absolute equality. In Bahr ar-Ra’iq: What is narrated in the Hadith, “For the virgin seven, for the previously married three,” and his saying to Umm Salamah, “If you wish, I will stay seven with you and seven with my wives, or three with you and rotate,” means favoring by starting with the new wife, not increasing. There is no doubt the Hadiths are ambiguous, not definitive, so the definitive evidence and absolute Hadiths take precedence. In Sharh Durar al-Bihar: The Hadith does not negate equality but allows choosing rotation with seven or three, reconciling with what we narrated.

² The statement: “Meaning with three among the rest”: This is the essence of what Imam At-Tahawi said, meaning “rotate” refers to rotating among the rest with three to achieve equality.