Divorce (Kitab Al-Talaq)
كتاب الطلاق
Chapter 29: Severe Reprimand Regarding Negating One's Child
AbuHurayrah heard the Messenger of Allah (ﷺ) say when the verse about invoking curses came down: Any woman who brings to her family one who does not belong to it has nothing to do with Allah (i.e. expects no mercy from Allah), and Allah will not bring her into His Paradise.
Allah, the Exalted, will veil Himself from any man who disowns his child when he looks at him, and disgrace him in the presence of all creatures, first and last.
Chapter 30: Claiming An Illegitimate Son
The Prophet (ﷺ) said: There is no prostitution in Islam. If anyone practised prostitution in pre-Islamic times, the child will be attributed to the master (of the slave-woman). He who claims his child without a valid marriage or ownership will neither inherit nor be inherited.
If he was a child of a slave-woman whom the father did not possess or of a free woman with whom he had illicit intercourse, he was not joined to the heirs and did not inherit even if the one to whom he was attributed is the one who claimed paternity, since he was a child of fornication whether his mother was free or a slave.
Chapter 33: Regarding The Types Of Marriages That Were Practiced Before Islam
A’ishah wife of the Prophet (ﷺ) said “Marriage in pre Islamic times was of four kinds.” One of them was the marriage contracted by the people today. A man asked another man to marry his relative (sister or daughter) to him. He fixed the dower and married her to him. Another kind of marriage was that a man asked his wife when she became pure from menstruation to send fro so and so and have sexual intercourse with him. Her husband kept himself aloof and did not have intercourse with her till It became apparent that she was pregnant from the man who had intercourse with her. When it was manifest that she was pregnant, her husband approached her if he liked. This marriage was called istibda’(to utilize man for intercourse for a noble birth). A third kind of marriage was that a group of people less than ten in number entered upon a woman and had intercourse with her. When she conceived gave birth to a child and a number of days passed after her delivery, she sent for them. No one of them could refuse to attend and they gathered before her. She said to them “You have realized your affair. I have now given birth to a child. And this is your son. O so and so. She called the name of anyone of them she liked and the child was attributed to him. A fourth kind of marriage was that many people gathered together and entered upon a woman who did not prevent anyone who came to her. They were prostitutes. They hoisted flags at their doors which served as a sign for the one who intended to enter upon them. When she became pregnant and delivered the child, they got together before her and called for the experts of tracing relationship from physical features. They attributed the child to whom they considered and it was given to him. The child was called his son and he could not deny. When Allah sent Muhammad (ﷺ) as a Prophet, he abolished all kinds of marriages prevalent among the people of the pre Islamic times except of the Muslims practiced today.
Chapter 34: "The Child Belongs To The Bed"
I asked her: What is this? She replied: This belongs to Yuhannah. We then brought the case to Uthman (for a decision). I think Mahdi said these words. He inquired from both of them, and they acknowledged (the facts).
He then said to them: Do you agree that I take the decision about you, which the Messenger of Allah (ﷺ) had taken? The Messenger of Allah (ﷺ) decided that the child was to attributed to the one on whose bed it was born. And I think he said: He flogged her and flogged him, for they were slaves.
Chapter 35: Who Has More Right To Take The Child ?
Zayd ibn Harithah went out to Mecca and brought the daughter of Hamzah with him. Then Ja'far said: I shall take her; I have more right to her; she is my uncle's daughter and her maternal aunt is my wife; the maternal aunt is like mother. Ali said: I am more entitled to take her. She is my uncle's daughter. The daughter of the Messenger of Allah (ﷺ) is my wife, and she has more right to her. Zayd said: I have more right to her. I went out and journeyed to her, and brought her with me. The Prophet (ﷺ) came out.
The narrator mentioned the rest of the tradition. He (i.e. the Prophet) said: As for the girl, I decided in favour of Ja'far. She will live with her maternal aunt. The maternal aunt is like mother.
When we came out from Mecca, Hamzah's daughter pursued us crying: My uncle. Ali lifted her and took her by the hand. (Addressing Fatimah he said:) Take your uncle's daughter. She then lifted her. The narrator then transmitted the rest of the tradition. Ja'far said: She is my uncle's daughter. Her maternal aunt is my wife. The Prophet (ﷺ) decided in favour of her maternal aunt, and said: The maternal aunt is like mother.
Chapter 38: Regarding Taking Divorced Women Back
The Prophet (ﷺ) divorced Hafsah, but he took her back in marriage.
Chapter 39: Regarding The Maintenance Of One Who Has Been Irrevocably Divorced
Abu Salamah bin ‘Abd Al Rahman said that Fatimah daughter of Qais told him that Abu Hafs Al Mughirah divorced her three times. He then narrated the rest of the tradition. The version has Khalid bin Walid and some people of Banu Makhzum came to the Prophet (ﷺ) and said Prophet of Allaah (ﷺ) Abu Hafs Al Mughirah divorced his wife three times and he has left a little for her. He said “No maintenance is necessary for her. He then transmitted the rest of the tradition. The tradition narrated by Malik is more perfect.
Chapter 28: Doubting The Child's Paternity
The tradition mentioned above has also been narrated by Al Zuhri through a different chain of narrators to the same effect. This version adds “At that time he was hinting at disowning the child.”
Chapter 32: Those Who Said That Lots Should Be Drawn If They Differ About The Child
I was sitting with the Prophet (ﷺ). A man came from the Yemen, and said: Three men from the people of the Yemen came to Ali, quarrelling about a child, asking him to give a decision. They had had sexual intercourse with a woman during a single state of purity.
He said to two of them: Give this child to this man (the third person) with pleasure. But they (refused and) cried loudly. Again he said to two of them: Give the child to the man (the third person) willingly. But they (refused and) cried loudly. He then said: You are quarrelsome partners. I shall cast lots among you; he who receives the lot, will acquire the child, and he shall pay two-thirds of the blood-money to both his companions. He then cast lots among them, and gave the child to the one who received the lot. The Messenger of Allah (ﷺ) laughed so much that his canine or molar teeth appeared.
Three persons were brought to Ali (Allah be pleased with him) when he was in the Yemen. They and sexual intercourse with a woman during a single state of purity. He asked two of them: Do you acknowledge this child for this (man)? They replied: No. He then put this (question) to all of them. Whenever he asked two of them, they replied in the negative. He, therefore, cast a lot among them, and attributed the child to the one who received the lot. He imposed two-third of the blood-money (i.e. the price of the mother) on him. This was then mentioned to the Prophet (ﷺ) and he laughed so much that his molar teeth appeared.
Chapter 35: Who Has More Right To Take The Child ?
A woman said: Messenger of Allah, my womb is a vessel to this son of mine, my breasts, a water-skin for him, and my lap a guard for him, yet his father has divorced me, and wants to take him away from me. The Messenger of Allah (ﷺ) said: You have more right to him as long as you do not marry.
She said: AbuHurayrah, speaking to him in Persian, my husband wishes to take my son away.
AbuHurayrah said: Cast lots for him, saying it to her in a foreign language.
Then her husband came and asked: Who is disputing with me about my son?
AbuHurayrah said: O Allah, I do not say this, except that I heard a woman who came to the Messenger of Allah (ﷺ) while I was sitting with him, and she said: My husband wishes to take away my son, Messenger of Allah, and he draws water for me from the well of AbuInabah, and he has been good to me.
The Messenger of Allah (ﷺ) said: Cast lots for him. Her husband said: Who is disputing with me about my son? The Prophet (ﷺ) said: This is your father and this your mother, so take whichever of them you wish by the hand. So he took his mother's hand and she went away with him.
This tradition has been narrated by ‘Abd Al Rahman bin Abi Laila through a different chain of narrators. This version has “He decided that she would be given to Ja’far and said “Her maternal aunt is with him(i.e., his wife).
Chapter 39: Regarding The Maintenance Of One Who Has Been Irrevocably Divorced
Abu Salamah reported on the authority of Fatimah daughter of Qais that Abu ‘Amr bin Hafs Al Makhzumi divorced her three times. He then narrated the rest of the tradition. He then mentioned about Khalid bin Walid and said that the Prophet (ﷺ) said “There are no maintenance and dwelling for her.” This version has “The Apostle of Allaah(ﷺ) sent a message to her “Do not give her consent for marriage without my permission.””
The tradition mentioned above has also been transmitted by Al Sha’bi through a different chain of narrators. This version has “The husband of Fathima daughter of Qais pronounced her triple divorce. The Prophet (ﷺ) did not allow her to have maintenance and dwelling.”
Abu Dawud said: Salih b. Kaisan, Ibn Juraij, and Shu'aib b. Abi Hamzah -- all of them narrated on the authority of al-Zuhru in a similar way.
Chapter 40: Whoever Rejected What Fatimah Bint Qais Said
Aisha (Allah be pleased with her) severely objected to the tradition of Fatimah daughter of Qays. She said: Fatimah lived in a desolate house and she feared for her loneliness there. Hence the Messenger of Allah (ﷺ) accorded permission to her (to leave the place).
Aisha was asked: Did you not see (i.e. known) the statement of Fatimah? She replied: It is not good for her to mention it (to others).