Divorce (Kitab Al-Talaq)
كتاب الطلاق
Chapter 25: Regarding A Man Who Was Married To More Than Four Women, Or To Two Sisters, And Then He Accepts Islam
I said: Messenger of Allah, I have embraced Islam and two sisters are my wives. He said: Divorce any one of them you wish.
Chapter 26: If One Of The Parents Accepts Islam, Who Is The Child Given To ?
My daughter; she is weaned or about to wean. Rafi' said: My daughter. The Prophet (ﷺ) said to him: Be seated on a side. And he said to her: Be seated on a side. He then seated the girl between them, and said to them: Call her. The girl inclined to her mother. The Prophet (ﷺ) said: O Allah! guide her. The daughter then inclined to her father, and he took her.
Chapter 27: Regarding Li'an (Mutual Cursing)
Ibn ‘Abbas said “Hilal bin Umayyah was one of the three persons whose repentance was accepted by Allaah. One night he returned from his land and found a man along with his wife. He witnessed with his eyes and heard with his ears. He did not threaten him till the morning.” Next day he went to the Apostle of Allaah(ﷺ) in the morning and said Apostle of Allaah(ﷺ) “I came to my wife in the night and found a man along with her. I saw with my own eyes and heard with my own ears. The Apostle of Allaah(ﷺ) disliked what he described and he took it seriously. There upon the following Qur’anic verse came down “And those who make charges against their spouses but have no witnesses except themselves, let the testimony of one of them....” When the Apostle of Allaah(ﷺ) came to himself (after the revelation ended) he said “Glad tidings to you Hilal, Allaah the exalted has made ease and a way out for you.” Hilal said “I expected that from my Lord. The Apostle of Allaah(ﷺ) said “Send for her. She then came.” The Apostle of Allaah(ﷺ) recited the verses to them and he reminded them and told them that the punishment in the next world was more severe than that in n this world. Hilal said “I swear by Allah I spoke the truth against her.” She said “He told a lie.” The Apostle of Allaah(ﷺ) said “Apply the method of invoking curses on one another. Hilal was told “Bear witness. So he bore witness before Allaah four times that he spoke the truth.” When he was about to utter the fifth time he was told “Hilal fear Allah, for the punishment in this world is easier than that in the next world and this is the deciding one, that will surely cause punishment to you.” He said “I swear by Allaah. Allah will not punish me for this (act), as He did not cause me to be flogged for this (act).” So he bore witness a fifth time invoking the curse of Allah on him if he was of those who tell a lie. Then the people said to her, Testify. So she gave testimony before Allaah that he was a liar. When she was going to testify the fifth time she was told “Fear Allah, for the punishment in this world is easier than that in the next world. This is the deciding one that will surely cause punishment to you.” She hesitated for a moment. And then said “By Allah, I will not disgrace my people.” So she testified a fifth time invoking the curse of Allah on her if he spoke the truth. Apostle of Allaah(ﷺ) separated them from each other and decided that the child will not be attributed to its father. Neither she nor her child will be accused of adultery. He who accuses her or her child will be liable to punishment. He also decided that there will be no dwelling and maintenance for her (from the husband) as they were separated without divorce and death. He then said “If she gives birth to a child with reddish hair, light buttocks, wide belly and light shins he will be the child of Hilal. If she bears a dusky child with curly hair, fat limbs, fat shins and fat buttocks he will be the child of the one who was accused of adultery. She gave birth to a child with curly hair, fat limbs, fat shins and fat buttocks. The Apostle of Allaah(ﷺ) said “Had there been no oaths, I would have dealt with her severely.” ‘Ikrimah said “Later on he became the chief of the tribe of Mudar. He was not attributed to his father.”
Ibn ‘Umar said “The Apostle of Allaah(ﷺ) said to the spouses who invoked curses on each other. Your reckoning is in Allaah’s hands for one of you is liar there is no way for you to (remarry) her. He then asked Apostle of Allaah(ﷺ) what about my property? He replied “There is no property for you. If you have spoken the truth, it is the price for your having had the right to intercourse with her and if you have lied against her it is still more remote for you.
Sa’d bin Jubair said I asked Ibn ‘Umar A man accused his wife of adultery? He said “The Apostle of Allaah(ﷺ) separated the brother and the sister of Banu Al ‘Ajilan (i.e., husband and wife). He said Allaah knows that one of you is a liar, will one of you repent? He repeated these words three times, but they refused. So he separated them from each other.
Yunus narrated from Al Zuhri on the authority of Sahl bin Sa’d in the tradition regarding li’an(invoking curses). He disowned her conception hence her child was attributed to her.
Chapter 28: Doubting The Child's Paternity
Abu Hurairah said A man from Banu Fazarah came to the Prophet (ﷺ) and said “My wife has given birth to a black son”. He said “Have you any camels?” He said “They are red”. He asked “Is there a dusky one among them?” He replied “Some of them are dusky”. He asked “How do you think they have come about?” He replied “This may be a strain to which they reverted”. He said “And this is perhaps a strain to which the child has reverted.”
A bedouin came to the Prophet (ﷺ), and said: My wife has given birth to a black son, and I disown him. He then narrated the rest of the tradition to the same effect.
Chapter 30: Claiming An Illegitimate Son
The tradition mentioned above has also been transmitted by Muhammad bin Rashid through a different chain of narrators to the same effect. This version adds “he is the child of fornication for the people of his mother whether she was free or a slave. This attribution of a child to the parents was practiced in the beginning of Islam. The property divided before Islam will not be taken into account.
Chapter 31: Regarding Al-Qafah
The Messenger of Allah (ﷺ) entered upon me. The version of Musaddad and Ibn as-Sarh has: one day looking pleased". The version of Uthman has: "The lines of his forehead were realised." He said: O Aisha, are you not surprised to hear that Mujazziz al-Mudlaji saw that Zayd and Usamah had a rug over them concerning their heads and letting their feet appear. He said: These feet are related.
Abu Dawud: Usamah was black and Zaid was white.
The tradition mentioned above has also been transmitted by ibn Shihab through a different chain of narrators to the same effect. This version adds “She said “he entered upon me looking pleased with the lines of his face brightened. Abu Dawud said “Ibn ‘Uyainah did not remember the words “the lines of his face”.” Abu Dawud said “The words “the lines of his face” have been narrated by Ibn ‘Uyainah himself. He did not hear Al Zuhri say (these words). He heard some person other than Al Zuhri say these words. The words “the lines of his face” occur in the tradition narrated by Al Laith and others. Abu Dawud said “ I heard Ahmad bin Salih say “Usamah was very black like tar and Zaid was white like cotton.”
Chapter 36: Regarding The Waiting Period Of A Divorced Woman
Asma', daughter of Yazid ibn as-Sakan al-Ansariyyah, was divorced in the time of the Messenger of Allah (ﷺ). No waiting period was prescribed for a divorced woman (at that time). When Asma' was divorced, Allah, the Exalted, sent down the injunction of waiting period for divorce. She is the first of the divorced women about whom the verse relating to waiting period was sent down.
Chapter 37: The Abrogation Of The Waiting Period For One Type Of Divorce
Women who are divorced shall wait, keeping themselves apart, three monthly courses; and then said: And for such of your women as despair of menstruation, if ye doubt, their period (of waiting) shall be three months. This was abrogated from the former verse. Again he said: (O ye who believe, if ye wed believing women) and divorce them before ye have touched them, then there is no period that ye should reckon."
Chapter 39: Regarding The Maintenance Of One Who Has Been Irrevocably Divorced
‘Ubaid Allah said “Marwan sent someone (Qabisah) to Fatimah and asked her (about the case). She said that she was the wife of Abu Hafs. The Prophet (ﷺ) appointed ‘Ali as governor in a certain part of Yemen. Her husband also proceeded with him. From there he sent a message to her pronouncing one divorce that had yet remained. He commanded ‘Ayyash bin Abi Rabi’ah and Al Harith bin Hisham to provide maintenance to her. They said “By Allah there is no sustenance for her except in case she is pregnant.” She came to the Prophet(ﷺ) who said “There is no sustenance for you except in case you are pregnant. She then asked permission to shift (from her house) and he gave her permission.” She asked “Where should I shift. Apostle of Allaah(ﷺ)? The Apostle of Allaah(ﷺ) said to Ibn Umm Maktum. He was blind. She would undress herself and he could not see her. She lived there till her waiting period passed. The Prophet (ﷺ) married her to Usamah. Qabisah then returned to Marwan and narrated that to him. Marwan said “We did not hear this tradition except from a woman, so we shall follow the reliable practice on which we found the people”. When this reached Fatimah she said “between me and you is the Book of Allah”. Allaah the exalted said “Divorce them for their waiting period...” Thou knowest not it may be that Allaah will afterward bring some new thing to pass. She said “What a new thing will emerge after triple divorce.” Abu Dawud said “A similar tradition has been narrated by Yunus on the authority of Al Zuhri. As for Al Zubaidi he narrated both traditions, the tradition of ‘Ubaid Allah in the version of Ma’mar and the tradition of Abu Salamah in the version of ‘Aqil.” Abu Dawud said “Muhammad bin Ishaq narrated on the authority of Al Zuhri that Qabisah bin Dhuwaib transmitted to him the version which was narrated by ‘Ubaid Allah bin ‘Abd Allaah which has Qabisah then returned to Marwan and informed him about that.”
Chapter 32: Those Who Said That Lots Should Be Drawn If They Differ About The Child
Khalil or Ibn Khalil said “A woman was brought to Ali bin Abi Talib(may Allaah be pleased with him). She bore a child from intercourse of three persons. The narrator transmitted the rest of the tradition similar to the previous one. But in this version he did not mention “Yemen” and the Prophet (ﷺ) and his words “give the child willingly.”
Chapter 34: "The Child Belongs To The Bed"
A’ishah said “Sa’d bin Abi Waqqas and ‘Abd bin Zamah disputed amongst themselves about the (relationship of the) son of the slave girl of Zam’ah and brought the case to the Apostle of Allaah(ﷺ). Sa’d said “My brother ‘Utbah enjoined me that when I came to Makkah I should see the son of the slave girl of Zam’ah and take his possession for that is his son”. ‘Abd bin Zam’ah said “He is my brother, the son of my father’s slave girl having been born on my father’s bed”. The Apostle of Allaah(ﷺ) saw his clear resemblance to ‘Utbah. So he said “The child is attributed to the one on whose bed it is born and the fornicator is deprived of any right (lit. the fornicator will have the stone). Veil yourself from him, Saudah. Musaddad added in his version “he is your brother ‘Abd”.
A man got up and said: Messenger of Allah, so-and-so is my son; I had illicit intercourse with his mother in the pre-Islamic period. The Messenger of Allah (ﷺ) said: There is no unlawful claiming of paternity in Islam. What was done in pre-Islamic times has been annulled. The child is attributed to the one on whose bed it is born, and the fornicator is deprived of any right.
Chapter 39: Regarding The Maintenance Of One Who Has Been Irrevocably Divorced
Abu Salamah bin ‘Abd Al Rahman reported on the authority of Fatimah daughter of Qais Abu ‘Amr bin Hafs divorced her (Fatimah daughter of Qais) absolutely when he was away from home and his agent sent her home barley. She was displeased with it. He said “I swear by Allah, you have no claim on us. She then came to Apostle of Allah (ﷺ) and mentioned that to him. He said to her “No maintenance is due to you from him. He ordered her to spend the waiting period in the house of Umm Sharik but he said afterwards “that is a woman whom my Companions visit. Spend the waiting period in the house of Ibn Umm Maktum for he is blind and you can undress. Then when you are in a position of being remarried, tell me.” She said “When I was in a position to remarry, I mentioned to him that Mu’awiyah bin Abi Sufyan and Abu Jahm had asked me in marriage. The Apostle of Allah (ﷺ)said “As for Abu Jahm, he does not put down his stick from his shoulder, and as for Mu’awiyah he is a poor man who has no property; marry Usamah bin Zaid. I disliked him but he said “Marry Usamah bin Zaid. So, I married him. And Allah prospered him very much and I was envied.”
Fatimah daughter of Qais said “I was married to a man of Banu Makhzum. He divorced me absolutely. The narrator then transmitted the rest of the tradition like that of Malik. This version has “Do not marry yourself without my permission.” Abu Dawud said Al Sha’bi, Al Bahiyy and ata from abd Al Rahman bin asim and Abu Bakr bin Abi Al Jahm all narrated on the authority of Fatimah daughter of Qais that her husband had divorced her three times.
Chapter 40: Whoever Rejected What Fatimah Bint Qais Said
Abu Ishaq said “I was with Al Aswad in the congregational mosque. He said “Fathimah daughter of Qais came to ‘Umar bin Al Khattab(may Allaah be pleased with him). (When she narrated the tradition about her divorce) he said “We are not to leave the Book of our Lord and the Sunnah of our Prophet (ﷺ) for the statement of a woman, we do not know whether she remembered it or not.”