بَابُ اللَّعَانِLi‘an (Mutual Imprecation)

¹ His statement: “What should he do?” The Messenger of Allah (ﷺ) said: “A revelation has been sent down concerning you,” etc. According to al-Shafi‘i, the basis for accusing wives is the prescribed punishment based on the first verse: “And those who accuse chaste women and then do not produce four witnesses, flog them” [Qur’an 24:4]. The verse of mutual cursing clarifies that if the accuser is a husband, he can avert the punishment through mutual cursing. If the accused is the accuser’s wife, she can avert the punishment of adultery through her mutual cursing. If either refuses to perform mutual cursing, the original ruling applies, which is the punishment. Abu Hanifah and his companions held that the obligation for accusing a wife is only mutual cursing, not the punishment. According to us, the verse of mutual cursing abrogates the first verse concerning wives, as the specific ruling that comes later abrogates the general ruling to its extent. Thus, the first verse no longer applies to wives, and the obligation for accusing a wife is mutual cursing. If either refuses, they are imprisoned until they perform it, like a debtor who refuses to fulfill a debt. When Hilal accused his wife, the Messenger of Allah (ﷺ) said to him: “Evidence, or a punishment on your back,” indicating that initially, it warranted the punishment like accusing a non-wife. When the verse of mutual cursing was revealed, it abrogated this for wives, as stated in al-Bada’i‘ and al-Inayah. This was mentioned in al-Bahr al-Ra’iq.

² His statement: “They performed mutual cursing,” etc. Its root is from “curse,” meaning expulsion and distancing from Allah’s mercy. Its legal meaning according to us is testimonies confirmed by oaths accompanied by cursing. Al-Shafi‘i said: It is oaths confirmed with the wording of testimony. He requires the eligibility for taking an oath, so it applies between a Muslim and his non-Muslim wife, between a non-Muslim and a non-Muslim wife, and between a slave and his wife. This is also the view of Malik and Ahmad. According to us, the eligibility for testimony is required, so it only applies between free, sane, adult Muslims who have not been punished for false accusation. Al-Shafi‘i’s evidence is the verse: “The testimony of one of them shall be four testimonies by Allah” [Qur’an 24:6], which is definitive regarding oaths, and testimony can include oaths. We interpreted the ambiguous as the definitive, especially since testimony for oneself is not accepted, unlike an oath. Its repetition indicates it is an oath, as it was legislated repeatedly, like in the case of qasamah, unlike delivering testimony. Our evidence is the verse: “And those who accuse their wives and have no witnesses except themselves” [Qur’an 24:6]. It excludes “themselves” from witnesses, establishing that they are witnesses, as the exception is of the same type as what it is excepted from. Then it explicitly mentions their testimony: “The testimony of one of them shall be four testimonies by Allah” [Qur’an 24:6]. It specifies testimony and oath, so we say the core is testimony confirmed by an oath, and confirmation does not negate it being testimony. The claim that testimony for oneself is not accepted is invalid, as it is only rejected in cases of suspicion. When suspicion is absent, it is accepted, as Allah says: “Allah testifies that there is no deity except Him” [Qur’an 3:18], which is among the truest testimonies due to the absence of suspicion. In this case, suspicion is negated by the oath. This was stated by al-Ayni. His testimony stands in place of the punishment for false accusation, and her testimony stands in place of the punishment for adultery. If they perform mutual cursing, the punishment for false accusation is lifted from him, and the punishment for adultery is lifted from her, as invoking Allah is as severe as the punishment, or even more so. Mutual cursing occurs when there are no witnesses. If the husband provides four witnesses to her adultery, there is no mutual cursing or punishment for him, but she receives the punishment for adultery. Similarly, if she confesses to adultery and confirms the husband’s claim. In summary, mutual cursing occurs when a man accuses his wife of adultery, she denies it, and he does not provide witnesses. Its conditions include an existing valid marriage, not an invalid one, and the accusation must be one that would warrant punishment if made against a non-wife, as she is the accused, fulfilling the conditions of chastity. Its core is testimonies confirmed by oaths and cursing. Its ruling is the prohibition of intercourse and enjoyment after mutual cursing, even before separation, based on the hadith: “The two who perform mutual cursing shall never reunite.” Its participants are those eligible to testify among Muslims, meaning both the accuser and the accused must be fit to testify, not having been punished for false accusation, not being non-Muslims, insane, slaves, or minors. This includes the immoral and the blind, as they are eligible to testify. If a man accuses his wife of adultery, either both are eligible to testify, or they are not. If they are not, the details are as in al-Durr al-Mukhtar and Radd al-Muhtar. If the husband is ineligible to testify due to slavery or disbelief (e.g., she converted to Islam, and he accused her before being offered Islam) and is eligible to make the accusation (i.e., sane, adult, and articulate), he is punished. The basis is that if mutual cursing is void due to his status, if the accusation is valid, he is punished; otherwise, there is neither punishment nor mutual cursing. If he is eligible to testify, but she is not, or if her accuser would not be punished, he faces no punishment, as if a stranger accused her, and there is no mutual cursing, as it is absent. However, he is disciplined to prevent such actions. If it is void due to both, such as both having been punished for false accusation, it is like the first case, as it is void due to his status, since he initiated it, and her status is not considered alongside his. This is supported by the hadith: “Four women have no mutual cursing with them: a Christian woman under a Muslim, a Jewish woman under a Muslim, a slave woman under a free man, and a free woman under a slave.” [Narrated by Ibn Majah and others] This was stated in Umdat al-Ri‘ayah. In al-Tafsir al-Ahmadiyya: If both are eligible to testify and the woman demands it, the man must perform mutual cursing. If he refuses, he is imprisoned until he performs it or retracts his claim, in which case he receives the punishment for false accusation. If he chooses to perform mutual cursing, he says four times: “By Allah, I am among the truthful in what I accused her of regarding adultery,” and the fifth time: “The curse of Allah be upon me if I am among the liars.” This is the man’s mutual cursing, which lifts the punishment for false accusation. After his mutual cursing, the woman must perform mutual cursing. If she refuses, she is imprisoned until she performs it or confirms her husband’s claim, in which case she receives the punishment for adultery. According to al-Shafi‘i, she receives the punishment for adultery by merely refusing mutual cursing. If she chooses to perform mutual cursing, she says four times: “By Allah, he is among the liars in what he accused me of regarding adultery,” and the fifth time: “The wrath of Allah be upon me if he is among the truthful.” This is the woman’s mutual cursing, which lifts the punishment for adultery. This is the meaning of the verse: “And it averts the punishment from her” [Qur’an 24:8]. At this point, both are equal in having the punishments lifted. In al-Bada’i‘: Scholars differed on the ruling of mutual cursing. Our three companions said it necessitates separation as long as they remain in the state of mutual cursing, but the separation does not occur by mutual cursing itself without the judge’s ruling, so the husband can still divorce, make zihar, or swear an oath of abstinence, and inheritance remains between them before separation. Zufar and al-Shafi‘i said it causes separation by mutual cursing itself, except that according to Zufar, separation does not occur unless both perform mutual cursing, while al-Shafi‘i said separation occurs by the husband’s mutual cursing before the wife’s. Al-Shafi‘i’s view is that separation pertains to the husband, as he is the cause of separation, so it does not depend on the wife’s action, like divorce. Zufar cited the narration from the Messenger of Allah (ﷺ): “The two who perform mutual cursing shall never reunite,” and their remaining married entails their reunion, which contradicts the text. The response is that it refers to after the judge’s separation, supported by what is in Abu Dawud’s Sunan: “The precedent for those who perform mutual cursing is that they are separated and never reunite.” The evidence that separation does not occur by mutual cursing itself is in Sahih al-Bukhari and elsewhere: After Uwaimir al-Ajlani performed mutual cursing, he said: “O Messenger of Allah, I have lied about her if I keep her,” and divorced her thrice. If separation had occurred by mutual cursing, the Messenger of Allah (ﷺ) would have objected to his pronouncing divorces, saying: “She is not your wife for you to divorce her.” His silence indicates she was still eligible for divorce, and separation had not yet occurred. In al-Inayah: If it is said that he objected by saying: “Go, you have no claim over her,” it is responded that this refers to his request to reclaim the dowry, as it is narrated that he said: “If you were truthful, it is for her for what you made lawful of her private parts, and if you lied, you have no claim over her.” In al-Bahr al-Ra’iq: As for al-Bayhaqi’s statement in al-Ma‘rifah that Uwaimir divorced her thrice, unaware that mutual cursing was separation, so it was like stipulating compensation in a loan, which is binding whether stipulated or not, unlike zihar, the response is that the inference is based on the lack of objection to him, not merely his action, as is clear. We also have the narration from Nafi‘ from Ibn Umar (may Allah be pleased with them): A man performed mutual cursing with his wife during the Prophet’s time (ﷺ) and disowned her child. The Prophet (ﷺ) separated them and attributed the child to the woman. From Ibn Abbas (may Allah be pleased with them): When the Prophet (ﷺ) performed mutual cursing between Asim ibn Adi and his wife, he separated them. It is narrated that the Messenger of Allah (ﷺ) performed mutual cursing between al-Ajlani and his wife, and when they finished, he separated them. These hadiths indicate that separation does not occur by the husband’s or wife’s mutual cursing, as if it had, the Prophet’s (ﷺ) separation after mutual cursing would not have been necessary. In al-Bada’i‘: Scholars also differed on it. Abu Hanifah and Muhammad said the separation in mutual cursing is by one irrevocable divorce, dissolving the marriage bond and establishing the prohibition of reunion and remarriage as long as they remain in the state of mutual cursing. If the husband retracts and is punished for false accusation, or the wife retracts by confirming him, marriage between them becomes permissible, and they can reunite. Abu Yusuf, Zufar, and al-Hasan ibn Ziyad said it is a separation without divorce, causing a permanent prohibition, like that of fosterage or affinity. They cited the Prophet’s (ﷺ) saying: “The two who perform mutual cursing shall never reunite,” which is explicit in this matter. For Abu Hanifah and Muhammad, it is narrated that when the Messenger of Allah (ﷺ) performed mutual cursing between Uwaimir al-Ajlani and his wife, Uwaimir said: “I have lied about her, O Messenger of Allah, if I keep her, she is divorced thrice.” In some narrations: “I have lied about her if I do not separate from her, she is divorced thrice.” Thus, the husband’s divorce after mutual cursing became the precedent for those who perform mutual cursing, as Uwaimir divorced his wife thrice after mutual cursing before the Messenger of Allah (ﷺ), who enforced it. Every person who performs mutual cursing must divorce, and if he refuses, the judge acts in his place to effect separation, making it a divorce, as in the case of impotence. The cause of this separation is the husband’s accusation, as it necessitates mutual cursing, which necessitates separation, which causes the dissolution. Thus, the separation, through these intermediaries, is attributed to the prior accusation. Every separation caused by the husband or his action is a divorce, as in the case of impotence, mutual agreement, or swearing abstinence, which is the view of the predecessors like Ibrahim, al-Hasan, Sa‘id ibn Jubayr, Qatadah, and others. The hadith cannot be taken literally, as we mentioned, because the literal meaning of “mutual cursers” is those engaged in the act. After completing mutual cursing, they are no longer mutual cursers literally. The intended meaning refers to the ruling, which is that the ruling of mutual cursing remains upon them. If the husband retracts and is punished for false accusation, the ruling of mutual cursing is nullified, so they are neither mutual cursers literally nor in ruling, making their reunion permissible. Thus, it is said in al-Hidayah: “They shall not reunite as long as they are mutual cursers.”

³ His statement: “He divorced her thrice,” etc. Therefore, it is said in al-Bada’i‘ and al-Bahr al-Ra’iq: Every person who performs mutual cursing must divorce, and if he refuses, the judge acts in his place to effect separation, making it a divorce, as in the case of impotence.

⁴ His statement: “Were it not for what has been decreed in the Book of Allah,” etc. Meaning, were it not for the Qur’an’s ruling against imposing punishment or reprimand on those who perform mutual cursing, I would have dealt with her. They said: The hadith indicates that the judge does not consider assumptions, signs, or indications but rules based on the apparent requirements of evidence and proofs. It is understood from their words that resemblance and physiognomy are not evidence but mere assumptions and indications, so no ruling is based on them, as is our view. This was stated in al-Luma‘at.

⁵ His statement: “The testimony of one of them,” etc. Al-Shafi‘i said mutual cursing is an oath, while Abu Hanifah and his companions said it is testimony. They cited the verse: “The testimony of one of them shall be four testimonies by Allah” [Qur’an 24:6] and the Prophet’s (ﷺ) saying in this hadith: “Hilal came and testified, then she stood and testified.” [Narrated by Nayl al-Awtar, summarized]

⁶ His statement: “You have no claim to it,” etc. Know that the dowry is obligated by the contract, either by specification if present, or by the legal ruling, such as the obligation of a comparable dowry if unspecified. The dowry is confirmed by one of three things: consummation, valid seclusion, or the death of either spouse. Consummation confirms the exchange, making the dowry definitive. Seclusion is legally equivalent to consummation, as it typically leads to it. Death ends the marriage, and a thing is confirmed and solidified upon its end. This is stated in al-Hidayah and al-Binayah. This clarifies that the dowry is not obligated by intercourse or death but by the contract itself, and it is confirmed by what was mentioned. In al-Bada’i‘: Once the dowry is confirmed by what was mentioned, it does not lapse thereafter, even if the separation is due to her, as the exchange, once confirmed, does not allow for lapse except by release. Thus, it is clear that the dowry does not lapse due to the wife’s disobedience, though her maintenance does. What is in some fatwas about the dowry lapsing due to disobedience is not relied upon. This was stated in Umdat al-Ri‘ayah.

¹ His statement: “If I found a man,” etc. Allamah al-Ayni said in Umdat al-Qari: It is understood from Sa‘d ibn Ubadah’s words (may Allah be pleased with him) that if this happened to him, he would kill the man. For this reason, when it reached the Prophet (ﷺ), he did not prohibit him from it. Al-Dawudi said: His statement: “Are you amazed at Sa‘d’s zeal?” indicates that he praised and permitted it for him in his relationship with Allah. Zeal is among the most praiseworthy qualities, and one who lacks it is not of commendable character. Our companions elaborated on this, saying: If a man finds someone with his wife or slave girl intending to overpower and commit adultery with her, he may kill him. If he sees him with his wife or a close relative who consents to it, he kills both the man and the woman. Some prohibited this outright. There is disagreement on the ruling. The majority said he is subject to retaliation. Ahmad and Ishaq said: If he provides evidence that he found him with his wife, his blood is spared. Al-Shafi‘i said: It is permissible for him in his relationship with Allah to kill the man if he is married and knows he committed an act requiring purification, but retaliation is not lifted in the apparent ruling. Al-Muhallab said: The hadith indicates that retaliation is obligatory for one who kills a man he found with his wife, as Allah, though more zealous than His servants, required witnesses for punishments. No one may transgress Allah’s limits, and no blood is spared by mere claim. In summary, according to Badr al-Majhud: One who kills a man he found committing adultery with his wife, the majority say he is subject to retaliation unless he provides evidence or the heirs of the killed confess. In his relationship with Allah, if he is truthful, he faces no consequence.

¹ "Take your gold", The ruling on incidental inclusions in sales depends on two principles:

¹ The statement: “When you contract a debt”: Although this verse appears to apply to all debts, whether for a sold item or its price, it is narrated from Ibn ‘Abbas (may Allah be pleased with him) that it refers to forward sales. In Al-Hidayah, it is stated: Forward sale is a legislated contract based on the Book, which is the verse of indebtedness. Ibn ‘Abbas said: I bear witness that Allah, the Exalted, has permitted forward sales guaranteed for a known term in His Book and revealed the longest verse in His Book regarding it, reciting: O you who have believed, when you contract a debt (Al-Baqarah: 282). This is stated in Tafsir Al-Ahmadiyya. ² The statement: “A pledge taken”: In Al-‘Inayah, it is stated: The legitimacy of pledges is based on Allah’s saying: Then [let there be] a pledge taken (Al-Baqarah: 283). The plural of pledge is like the plural of servant. It is also based on the narration that he bought food from a Jew and pledged his iron armor, on consensus, as the Muslim community agreed on its permissibility without objection, and on reason, as it is a contract securing the side of fulfillment. It is akin to a guarantee on the side of obligation. The explanation is that a debt has two aspects: obligation and fulfillment. It is first obligatory on the person, then the wealth is fulfilled afterward. The guarantee pertains to the obligation tied to the person, which is surety, and it is permissible. Likewise, the guarantee tied to wealth is permissible, even more so, as fulfillment is the goal, and obligation is a means to it.

¹ His statement: “He disowned her child,” etc. Meaning, if a man accuses his wife by denying the child or by denying the child and accusing her of adultery, the judge separates them, and the child’s lineage is negated and attributed to the mother, provided they mention the accusation in the mutual cursing. This is stated in Sharh al-Wiqayah and al-Tafsir al-Ahmadiyya. In Umdat al-Qari: This hadith encompasses three rulings. First, mutual cursing, with no disagreement, and there is consensus on its validity and legislation. Second, separation, where scholars differed. It was mentioned earlier that according to Malik and al-Shafi‘i, separation occurs by mutual cursing itself, while according to Abu Hanifah, it occurs only by the judge’s ruling, based on the apparent meaning of the mentioned hadith, which is evidence against the opponents. Third, attributing the child to the mother, based on the apparent meaning of the hadith, on which the majority of jurists from the successors and those after them, including the four Imams and their followers, agreed. There is another disagreement from another perspective. Our companions said: If the accusation denies the child at the time of birth or a day or two after, or a similar period during which congratulations and purchasing birth items are customary, it is valid. If he denies it after that, it is not negated. Abu Hanifah did not specify a time for this, though it is narrated that he set seven days. Abu Yusuf, Muhammad, and Qatadah set it at the maximum period of postpartum, which is forty days. Al-Shafi‘i considered immediacy, saying if he denies it immediately, it is negated; otherwise, it is not.

¹ The statement: Give it to him from where the whip reached, Al-Mudhhar said: The granting to Zubair is interpreted as dead land or the fifth that is his share, so it is evidence for Abu Hanifah (may Allah be pleased with him). The general narrations are interpreted by it. Summarized from Al-Marqah.

¹ His statement: “My wife gave birth to a black boy,” etc. This implies an accusation, and scholars differed on its ruling. Some said there is no punishment for implication, only for explicit accusation. This was narrated from Ibn Mas‘ud, al-Qasim ibn Muhammad, al-Sha‘bi, Tawus, Hammad, Ibn al-Musayyib in one narration, al-Hasan al-Basri, and al-Hasan ibn Hayy. This was the view of al-Thawri, Abu Hanifah, and al-Shafi‘i, though they required discipline and deterrence. They cited the hadith of this chapter, and Bukhari’s chapter heading supports this. Others said implication is like explicit accusation, narrated from Umar, Uthman, Urwah, al-Zuhri, and Rabi‘ah. This was the view of Malik and al-Awza‘i. This is stated in Umdat al-Qari. In Rahmat al-Ummah: Implication does not warrant punishment according to Abu Hanifah, even if intended as an accusation. Malik said it warrants punishment absolutely. Al-Shafi‘i said if it is intended and explained as an accusation, it warrants punishment. Ahmad has two narrations, the more apparent being that it warrants punishment absolutely, and the other aligns with al-Shafi‘i’s view. The hadith indicates that denying a child based on mere suspicion or imagination without strong evidence is not permissible. It affirms the use of analogy, consideration, and examples. This was stated in al-Ta‘liq al-Mumajjad. In al-Marqah: The benefit of the hadith is the prohibition of denying a child based on weak indications. There must be clear, evident proof, such as not having had intercourse with her or her giving birth to a child before six months from the start of intercourse. The consideration of color here is to dispel suspicion, as the default is the innocence of Muslims. This differs from the earlier consideration of characteristics in Sharik’s hadith, which was not to dispel suspicion but to highlight that apparent traits are insignificant in the presence of the Qur’an’s text, so how much more so for subtle traces.

¹ His statement: “He is yours, O Abd ibn Zam‘ah. The child belongs to the bed,” etc. Al-Shafi‘i held that if a master has intercourse with his slave girl, every child she bears thereafter is his, whether he claims it or not. He cited this hadith, as the Messenger of Allah (ﷺ) said: “He is yours, O Abd ibn Zam‘ah,” then said: “The child belongs to the bed, and for the adulterer is the stone.” He attributed him to Zam‘ah not because of his son’s claim, as a son’s claim of lineage for another from his father is not accepted, but because his mother was Zam‘ah’s bed through his intercourse with her. A slave girl becomes a bed for her master through his intercourse or his acknowledgment of intercourse, not merely by ownership without intercourse. Abu Hanifah said she does not become a bed through intercourse or acknowledgment of it. If he had intercourse with her or acknowledged it and she bore a child, it is not attributed to him, and it remains a slave, as does its mother. The child is only attributed to him if he acknowledges it. In summary, any child a slave girl bears does not obligate her master unless he acknowledges it. If he dies before acknowledging it, it is not attributed to him and remains for the adulterer. Abu Hanifah’s evidence in the hadith is that the Messenger of Allah (ﷺ) said to Abd ibn Zam‘ah: “He is yours,” and did not say: “He is your brother.” It is possible he meant: “He is yours,” meaning a slave under your ownership, without ruling on his lineage. The evidence is that the Messenger of Allah (ﷺ) ordered Sawdah bint Zam‘ah to veil herself from him. If the Prophet (ﷺ) had made him Zam‘ah’s son, he would not have veiled Zam‘ah’s daughter from him, as he would not order the severance of family ties but their connection, including visits. How could he order her, having made him her brother, to veil from him? This is not permissible for him, as he ordered Aishah to permit her foster uncle to visit her, yet veiled Sawdah from one made her brother and father’s son. In our view, he did not rule on anything except the ownership, attributing him to Abd ibn Zam‘ah and Zam‘ah’s other heirs, excluding Sa‘d. If someone says: What is the meaning of his saying connected to this: “The child belongs to the bed, and for the adulterer is the stone”? It is said: This was instruction to Sa‘d that you claim for your brother, but your brother had no bed. Lineage would be established from him if he had a bed. Since he had no bed, he is an adulterer, and for the adulterer is the stone. If someone says: He ordered her to veil from him because of his resemblance to Utbah, as in Aishah’s hadith, it is said: This is not permissible, as resemblance does not establish lineage, nor does its absence negate lineage. Do you not see the man who said to the Messenger of Allah (ﷺ): “My wife gave birth to a black boy”? The Messenger of Allah (ﷺ) said: “Do you have camels?” He said: “Yes.” He said: “What are their colors?” He mentioned words, saying: “Is there a gray one among them?” He said: “There are gray ones.” He said: “Where do you think that came from?” He said: “A lineage pulled it.” The Messenger of Allah (ﷺ) said: “Perhaps this is a lineage that pulled it.” He did not permit him to deny him due to the lack of resemblance or prevent him from admitting him to his daughters and women, but gave him an example that resemblance does not establish lineage, nor does its absence negate it. Similarly, if Zam‘ah had intercourse with his mother, it would establish his lineage from him, and the lack of resemblance would have no significance, and his lineage from him would be established, entering upon his daughters as his other sons do. This argument is countered by the narration explicitly stating: “He is your brother.” However, it means your brother in faith. It is possible the original hadith was “He is yours,” and the narrator assumed it meant his brother in lineage, interpreting it as such. The narration by Abdullah ibn al-Zubair explicitly states: “He is not your brother.” In Amr ibn Shu‘ayb’s hadith, there are rulings the Messenger of Allah (ﷺ) judged in the early days of Islam and the beginnings of the law, as al-Khattabi said. Thus, it is not used as evidence against requiring acknowledgment for the lineage of a slave girl’s child. The apparent meaning of the hadith mentioned in the text is that the child is attributed to the father after establishing the bed, which is only established after the possibility of intercourse in a valid or invalid marriage. This is the view of the majority. It is narrated from Abu Hanifah that it is established by the contract alone, even if a man from the West marries a woman from the East, neither leaves their place nor has intercourse, and she bears a child after six months or more, it is attributed to him. This is stated in Nayl al-Awtar. The author of al-Tawdih said: According to most scholars, a free woman is not a bed except with the possibility of intercourse, and the child is attributed within a period she could give birth, the minimum being six months. Abu Hanifah diverged, saying if he divorces her immediately after the contract without the possibility of intercourse and she bears a child six months from the contract, it is attributed to him. He also said: What Abu Hanifah held contradicts what Allah has made customary, that a child comes from the man’s and woman’s fluids. Al-Ayni said: Abu Hanifah did not diverge or contradict what Allah has made customary. The author of al-Tawdih and those who followed him did not grasp what Abu Hanifah understood in this issue. He argued for his view with: “The child belongs to the bed,” meaning the owner of the bed, without mentioning the requirement of intercourse. The contract is like intercourse in this regard, unlike a slave girl, who has no bed, so her child’s lineage is only established by her master’s acknowledgment.

¹ The statement: “That separation occurs due to the difference in abodes”: Meaning, the difference in abodes is the cause of separation according to us. Ash-Shafi‘i said: The cause of separation is captivity, not the difference in abodes. The reasoning is that the difference in abodes disrupts mutual benefits, interrupting the marriage, while captivity entails ownership of the person, which does not inherently conflict with marriage initially, as when a man marries his slave woman to another, and likewise in continuation. If you say: It is reported that Zaynab, the daughter of the Prophet, migrated from Makkah to Madinah, leaving her husband Abu al-‘As ibn ar-Rabi‘ in Makkah. When he embraced Islam and arrived in Madinah, the Messenger of Allah (ﷺ) returned her to him under the original marriage. If the difference in abodes necessitated separation, this would not have been valid, and this is why Ash-Shafi‘i relied on it to say that the difference does not cause separation. I say: It is authentically reported in Jami‘ Tirmidhi, Sunan Ibn Majah, Musnad Ahmad, and others that the Messenger of Allah (ﷺ) returned her to him with a new marriage contract. The meaning of what is narrated as “the original marriage” is that he returned her to him with a marriage like the original, without adding anything to the dowry or otherwise. If you say: The saying of Allah, the Exalted, regarding prohibited women: “And married women” [An-Nisa: 24], meaning those with husbands, “except those your right hands possess” [An-Nisa: 24], indicates by its generality that captivity causes separation, as Ash-Shafi‘i held. I say: It is interpreted as applying when only the woman is taken captive, as separation then occurs due to the difference in abodes in ruling. Thus, if one of the spouses comes to us from the abode of war as a Muslim, separation occurs between them according to us, but not according to Ash-Shafi‘i. If one of the belligerent spouses is taken captive and brought to the abode of Islam, separation occurs between them by consensus, due to the difference in abodes according to us, and captivity according to Ash-Shafi‘i. If both are taken captive together, no separation occurs according to us, but it does according to Ash-Shafi‘i. As stated in Umdat ar-Ri‘ayah with additions from Al-‘Ayni. ² The statement: “Due to the lack of indication of the occurrence of separation of abodes”: In Al-Jawhar an-Naqi, it is said: As for Safwan, ‘Umayr ibn Wahb caught up with him as he intended to board a ship, and he brought him back. Al-Quduri mentioned in At-Tajrid from Al-Waqidi that he caught up with him at the port of ships for the people of Makkah, from where the Muslims embarked for the migration to Abyssinia, and from where Quraysh built the ship used to roof the Ka‘bah. This place is an extension of Makkah and under its ruling, so there was no difference in abode between him and his wife. ³ The statement: “As for ‘Ikrimah, etc.”: Thus said Ibn Lahi‘ah.

¹ His statement: “He is shared between you; he inherits from both of you, and you both inherit from him,” etc. This indicates that the opinion of physiognomists is not used for lineage or otherwise, as held by the Kufans, al-Thawri, Abu Hanifah, and his companions. Al-Shafi‘i and others cited the hadith of al-Mudliji to establish the validity of physiognomy and ruling by their opinions in attributing a child. If it were not so, the Prophet (ﷺ) would have objected to Mujazziz, saying: “How do you know?” His silence and lack of objection indicate that their opinion leads to a truth that warrants ruling. The Hanafis’ evidence against them is that the Prophet’s (ﷺ) pleasure with Mujazziz’s statement in Aishah’s hadith does not indicate what they assumed about the obligation to rule by physiognomists’ opinions. Usamah’s lineage from Zayd (may Allah be pleased with them) was established before that, and the Prophet (ﷺ) did not need anyone’s opinion. Otherwise, Usamah would not have been attributed to Zayd earlier. The Prophet’s (ﷺ) amazement was at Mujazziz’s accuracy, as one is amazed at someone whose assumption correctly identifies the reality, but it does not necessitate ruling by it. The Prophet (ﷺ) did not object because Mujazziz’s statement did not attempt to establish what was not already established. Allah says: “And do not pursue that of which you have no knowledge” [Qur’an 17:36]. This is summarized in Sharh Ma‘ani al-Athar. Al-Qari said: The hadith of al-Mudliji does not establish lineage by physiognomy; it is only for reinforcement and dispelling suspicion, like when a just witness testifies to seeing the crescent moon, and an astrologer agrees. The astrologer’s opinion is not a standalone proof for affirmation or negation but can reinforce a legal proof. Our evidence is the hadith: “The child belongs to the bed.” The inference is that the definite article and the lam of specification indicate exclusivity. Ibn al-Humam said: If a slave girl is shared between two partners and bears a child, and one claims it, his lineage is established from him, whether in sickness or health, and she becomes his umm walad by agreement, without compensating the partner’s share in solvency or insolvency. If both claim it, his lineage is established from both, and she becomes their umm walad, serving each one day. If one dies, she is freed, and the son inherits from both as a full son, and they inherit from him as one father. If one dies, the son’s entire inheritance goes to the surviving one. This is our view, as held by al-Thawri and Ishaq ibn Rahawayh. Al-Shafi‘i held this in his old opinion. Ahmad preferred the hadith of physiognomy, and it is said to be used if physiognomists are absent. Al-Shafi‘i said to refer to the physiognomist’s opinion, and if none is found, the matter is deferred until the child reaches maturity and chooses one. If he does not choose, his lineage remains deferred, not established except from his mother.

² His statement: In a narration by al-Bayhaqi, etc. This is stated in al-Binayah.

¹ The statement: Do not withhold excess water to withhold excess grass, they differed on whether this prohibition is for unlawfulness or disapproval. In At-Tawdih: The prohibition is for unlawfulness according to Malik and Al-Awza’i, and Al-Khattabi and Ibn At-Tin narrated it from Shafi’i. Some preferred it and interpreted it as recommended. The correct view among us is that it is obligatory to provide it for livestock, not for crops, as stated by Al-Ayni. He said: This is also the Hanafi view, specific to livestock. In Al-Hidayah: It is not permissible to sell or lease pastures, meaning grass, as per the statement: People are partners in three: fire, grass, and water. At-Tahawi and others said: This means if someone lights a fire, anyone can warm themselves by it or dry their clothes. He cannot take embers without permission. This is the meaning of partnership in fire. In water, it means drinking, watering animals, and drawing from owned wells, reservoirs, and rivers. In grass, it means harvesting it, even in owned land. This applies if the water is not contained in vessels or the grass is not cut. If they are contained, selling them is permissible, as containment makes them owned. This also applies if they grew naturally. If the owner watered and prepared the land for growth, and it grew, he can sell it, as he owns it, as in Adh-Dhakhirah, Al-Muhit, and An-Nawazil. This is the chosen view of As-Sadr Ash-Shahid and the majority. Al-Quduri prohibited its sale. In Fath Al-Qadir: Al-Quduri said: It is not permissible to sell grass in its land, even if he brought water to his land and incurred expenses, as the partnership in it is established naturally, and partnership ends only by containment. Bringing water to his land is not containment, so the grass remains shared, and selling it is not permissible. The majority hold the first view. Al-Halwani narrated from Muhammad (may Allah be pleased with him) that grass is what has no stem, and what has a stem is not grass. Al-Fadli said: It is also grass. In Al-Mughrib: It is everything grazed by animals. The details were covered in the chapter on prohibited sales.

¹ His statement: “Then keep her,” etc. Therefore, it is said in al-Durr al-Mukhtar: It is not obligatory for a husband to divorce an immoral wife. In Radd al-Muhtar: Nor is it obligatory for her to release an immoral husband, unless they fear they will not uphold Allah’s limits, in which case there is no harm in separating. Immorality includes adultery and other sins. The Prophet (ﷺ) said to one whose wife did not repel the hand of a toucher, and who said: “I love her,” “Enjoy her.”

¹ The statement: And for divorced women, This verse clarifies the maintenance of divorced women, as provision refers to maintenance, which is the preferred view of the author of Al-Madarak. The meaning of the verse is that a divorced woman is entitled to maintenance from her husband as long as she is observing her waiting period, whether the divorce is revocable, irrevocable, or otherwise. This verse’s ruling remains in effect and is not abrogated by consensus. There is a difference of opinion regarding the irrevocably divorced woman, which will be discussed in this chapter, God willing. This is derived from At-Tafsir Al-Ahmadiyya.

² The statement: Do not expel them, This means it is not permissible to expel a divorced woman observing her waiting period from her husband’s house, nor for her to leave. Do not expel them means, O husbands, do not remove them from their homes at the time of separation until their waiting period ends. Nor should they leave [At-Talaq: 1] means they should not leave voluntarily except if they commit a clear immorality [At-Talaq: 1], i.e., an evident sinful act that warrants a prescribed punishment, such as adultery or theft, in which case they may be expelled for that reason, or if she harms the household with obscenity or immorality, it is permissible to expel her as she is considered rebellious (nashiz). This exception applies to both forms of expulsion. In summary, the verse proves her right to housing and her obligation to remain in the place of separation. This is summarized from At-Tafsir Al-Ahmadiyya.

³ The statement: House them, This clarifies that providing housing is obligatory for a divorced woman observing her waiting period. House them means, O men, provide them a place where you dwell [At-Talaq: 6], i.e., a place from your residence according to your means [At-Talaq: 6], i.e., within your capacity. And do not harm them [At-Talaq: 6] in housing or maintenance to oppress them in their livelihood and force them to leave. The first phrase indicates partial provision, and the second clarifies it, as stated by the authors of Al-Kashshaf and Al-Madarak. Fakhr Al-Islam mentioned in Aqsam As-Sunnah that it means: Spend on them according to your means, indicating both housing and maintenance. This is from At-Tafsir Al-Ahmadiyya.

⁴ The statement: Menstrual periods, There is disagreement regarding the menstrual periods mentioned in the verse, whether they refer to periods of purity or menstruation. The apparent meaning of the Prophet’s (ﷺ) saying: She observes her waiting period with three menstruations, and his saying: She remains during her menstrual periods, and his saying: Her waiting period is two menstruations, and the narrations mentioned in the book, indicate that the menstrual periods are menstruations. This is the view of Abu Hanifah. This is derived from Nayl Al-Awtar.