Divorce

Yahya related to me from Malik that he had heard that Umm Salama,the wife of the Prophet, may Allah bless him and grant him peace,said, "A mourning woman can rub her head with lotus leaves and oliveoil.''

Yahya related to me from Malik that he had heard that a man saidto Abdullah ibn Abbas, "I have divorced my wife by saying I divorceyou a hundred times. What do you think my situation is?" Ibn Abbassaid to him, "She was divorced from you by three pronouncements, andby the ninety-seven, you have mocked the ayat of Allah."

Yahya related to me from Malik that he had heard that a man cameto Abdullah ibn Masud and said, "I have divorced my wife by saying Idivorce you eight times." Ibn Masud said to him, "What have peopletold you?" He replied, "I have been told that I have to partabsolutely from her." Ibn Masud said, "They have spoken the truth. Aperson who divorces as Allah has commanded, Allah makes it clear forhim, and a person who obscures himself in error, we make stay by hiserror. So do not confuse yourselves and pull us into your confusion.It is as they have said."

Yahya related to me from Malik from Yahya ibn Said from Abu Bakribn Hazm thatUmar ibn Abd al-Aziz had asked him what people said aboutthe 'irrevocable' divorce, and Abu Bakr had replied that Aban ibnUthman had clarified that it was declared only once. Umar ibn Abd al-Aziz said, "Even if divorce had to be declared a thousand times,the'irrevocable' would use them all up. A person who says,'irrevocably' has cast the furthest limit."

Yahya related to me from Malik from Ibn Shihab that Marwan ibnal-Hakam decided that if someone made three pronouncements of divorce,he had divorced his wife irrevocably.

Malik said, "That iswhat I like best of what I have heard on the subject."

29.2Divorce by Euphemistic Statements

Yahya related to me from Malik that he had heard that Umar ibnal-Khattab had heard in a letter from Iraq that a man said to hiswife, "Your rein is on your withers (i.e. you have free rein)." Umaribn al-Khattab wrote to his governor to order the man to come to himat Makka at the time of hajj. While Umar was doing tawaf around theHouse, a man met him and greeted him. Umar asked him who he was, andhe replied that he was the man that he had ordered to be brought tohim. Umar said to him, "I ask you by the Lord of this building, whatdid you mean by your statement, 'Your rein is on your withers.'?" Theman replied, "Had you made me swear by other than this place, I wouldnot have told you the truth. I intended separation by that." Umar ibnal- Khattab said, "It is what you intended."

Yahya related to me from Malik that he had heard that Ali ibn AbiTalib used to say that if a man said to his wife, "You are haram forme," it counted as three pronouncements of divorce.

Maliksaid, "That is the best of what I have heard on the subject."

Yahya related to me from Malik from Nafi that Abdullah ibn Umarsaid that statements like "I cut myself off from you",or"You areabandoned", were considered as three pronouncements of divorce.

Malik said that any strong statements such as these or others wereconsidered as three pronouncements of divorce for a woman whosemarriage had been consummated. In the case of a woman whose marriagehad not been consummated, the man was asked to make an oath on hisdeen, as to whether he had intended one or three pronouncements ofdivorce. If he had intended one pronouncement, he was asked to make anoath by Allah to confirm it, and he became a suitor among othersuitors, because a woman whose marriage had been consummated, requiredthree pronouncements of divorce to make her inaccessible for thehusband, whilst only one pronouncement was needed to make a womanwhose marriage had not been consummated inaccessible.

Malikadded, "That is the best of what I have heard about the matter."

Yahya related to me from Malik from Yahya ibn Said from al-Qasimibn Muhammad that a certain man had taken a slave-girl belonging tosomebody else as a wife. He said to her people, "She is your concern,"and people considered that to be one pronouncement of divorce.

Yahya related to me from Malik that he heard Ibn Shihab say thatif a man said to his wife, "You are free of me, and I am free of you," it counted as three pronouncements of divorce as if it were an'irrevocable' divorce.

Malik said that if a man made anystrong statement such as these to his wife, it counted as threepronouncements of divorce for a woman whose marriage had beenconsummated, or it was written as one of three for a woman whosemarriage had not been consummated, whichever the man wished. If hesaid he intended only one divorce he swore to it and he became one ofthe suitors because, whereas a woman whose marriage had beenconsummated was made inaccessible by three pronouncements of divorce,the woman whose marriage had not been consummated was madeinaccessible by only one pronouncement.

Malik said, "That isthe best of what I have heard."

Yahya related to me from Malik that he had heard that a man cameto Abdullah ibn Umar, and said, "Abu Abd ar-Rahman! I placed thecommand of my wife in her hand, and she divorced herself, what do youthink?" Abdullah ibn Umar said, "I think that it is as she said." Theman said, "Don't do it, Abu Abd ar-Rahman!" Ibn Umar said, "You didit, it has nothing to do with me."

Yahya related to me from Malik from Nafi that Abdullah ibn Umarsaid, "When a man gives a woman command over herself, then the resultis as she decides unless he denies it and says that he only meant togive her one divorce and he swears to it - then he has access to herwhile she is in her idda."

Yahya related to me from Malik from Said ibn Sulayman ibn Zaydibn Thabit that Kharija ibn Zayd ibn Thabit told him that he wassitting with Zayd ibn Thabit when Muhammad ibn Abi Atiq came to himwith his eyes brimming with tears. Zayd asked him what the matter was.He said, "I gave my wife command of herself, and she separated fromme." Zayd said to him, "What made you do that?" He said, "The Decree."Zayd said, "Return to her if you wish for it is only onepronouncement, and you have access to her."

Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasimfrom his father that a man of Thaqif gave his wife command overherself, and she said, "You are divorced." He was silent. She said,"You are divorced." He said, "May a stone be in your mouth." She said,"You are divorced." He said, "May a stone be in your mouth." Theyargued and went to Marwan ibn al-Hakam. He took an oath that he hadonly given her control over one pronouncement, and then she returnedto him.

Malik said that Abd ar-Rahman declared that thisdecision had amazed al-Qasim, who thought it the best that he hadheard on the subject.

Malik added, "That is also the best ofwhat I have heard on the subject."

Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasimfrom his father that A'isha, umm al-muminin, proposed to Qurayba bintAbi Umayya on behalf of Abd ar-Rahman ibn Abi Bakr. They married herto him and her people found fault with Abd ar-Rahman and said, "Weonly gave in marriage because of A'isha." A'isha therefore sent forAbd ar-Rahman and told him about it. He gave Qurayba authority overherself and she chose her husband and so there was no divorce.

Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasimfrom his father that A'isha, the wife of the Prophet, may Allah blesshim and grant him peace, gave Hafsa bint Abd arRahman in marriage toal-Mundhir ibn az-Zubayr while Abd ar-Rahman was away in Syria. WhenAbd ar-Rahman arrived, he said, "Shall someone like me have this doneto him? Am I the kind of man to have something done to him without hisconsent?" A'isha spoke to al-Mundhir ibn az-Zubayr, and al-Mundhirsaid, "It is in the hands of Abd ar-Rahman." Abd ar-Rahman said, "Iwon't oppose something that you have already completed." Hafsa wasconfirmed with al-Mundhir, and there was no divorce.

Yahya related to me from Malik fromYahya ibn Said that Said ibn al-Musayyab said, "If a man gives hiswife authority over herself, and she does not separate from him andremains with him, there is no divorce."

Malik said that awoman whose husband gave her power over herself and they separatedwhile she was unwilling, had no power to revoke the divorce. She onlyhad power over herself as long as they remained together.

Yahya related to me from Malik from Jafar ibn Muhammad from hisfather that Ali ibn Abi Talib said, "When a man takes a vow to abstainfrom intercourse, divorce does not occur immediately. If four monthspass, he must declare his intent and either he is divorced or herevokes his vow . "

Malik said, "That is what is done amongus."

Yahyarelated to me from Malik from Ibn Shihab that Said al-Musayyab and AbuBakr ibn Abd ar-Rahman said about a man who made a vow to abstain fromintercourse with his wife, "If four months pass it is a divorce. Thehusband can go back to his wife as long as she is in her idda."