Divorce

Yahya related to me from Malik that he had asked Ibn Shihab aboutthe ila of the slave. He said that it was like the ila of the freeman, and it put an obligation on him. The ila of the slave was twomonths.

Yahya related to me from Malik from Said ibn Amr ibn Sulaym az-Zuraqi that he asked al-Qasim ibn Muhammad about a man who madedivorce conditional on his marrying a woman i.e. if he married her hewould automatically divorce her. Al-Qasim ibn Muhammad said, "If a manmarries a woman whom he has made as his mother's back, i.e. has madeharam for him, Umar ibn al-Khattab ordered him not to go near her ifhe married her until he had done the kaffara for pronouncing dhihar."

Yahya related to me from Malik that he had heard that a man askedal-Qasim ibn Muhammad and Sulayman ibn Yasar about a man whopronounced dhihar from his wife before he had married her. They said,"If he marries her, he must not touch her until he has done thekaffara for pronouncing dhihar."

Yahya related to me from Malik from Hisham ibn Urwa that hisfather said that a man who pronounced a dhihar from his four wives inone statement, had only to do one kaffara. Yahya related the same asthat to me from Malik from Rabia ibn Abi Abd ar-Rahman.

Maliksaid, "That is what is done among us. Allah, the Exalted said aboutthe kaffara for pronouncing dhihar, 'It is to free a slave before theytouch one another. If he does not find the means to do that, thenfasting for two consecutive months before they touch one another. Ifhe cannot do that, it is to feed sixty poor people. ' " (Sura 58 ayats4,5).

Malik said that a man who pronounced dhihar from hiswife on various occasions had only to do one kaffara. If he pronounceddhihar, and then did kaffara, and then pronounced dhihar after he haddone the kaffara, he had to do kaffara again.

Malik said,"Some one who pronounces dhihar from his wife and then has intercoursewith her before he has done kaffara, only has to do one kaffara. Hemust abstain from her until he does kaffara and ask forgiveness ofAllah. That is the best of what I have heard. "

Malik said,"It is the same with dhihar using any prohibited relations offosterage and ancestry."

Malik said, "Women have no dhihar."

Malik said that he had heard that the commentary on the wordof Allah, the Blessed, the Exalted, "Those of you who pronounce thedhihar about their wives, and then retract what they have said," (Sura56 ayat 3), was that a man pronounced dhihar on his wife and thendecided to keep her and have intercourse with her. If he decided onthat, he must do kaffara. If he divorced her and did not decide toretract his dhihar of her and to keep her and have intercourse withher, there would be no kaffara incumbent on him.

Maliksaid,"If he marries her after that, he does not touch her until he hascompleted the kaffara of pronouncing dhihar."

Malik said thatif a man who pronounced dhihar from his slave-girl wanted to haveintercourse with her, he had to do the kaffara of the dhihar before hecould sleep with her.

Malik said, "There is no ila in a man'sdhihar unless it is evident that he does not intend to retract hisdhihar."

Yahya related to me from Malik from Hisham ibn Urwa that he hearda man ask Urwa ibn az-Zubayr about a man who said to his wife, "Anywoman I marry along with you as long as you live will be like mymother's back to me." Urwa ibn az-Zubayr said, "The freeing of slavesis enough to release him from that."

ahya related to me from Malik that he asked Ibn Shihab about thedhihar of a slave. He said, "It is like the dhihar of a free man."

Malik said, "He meant that the same conditions were appliedin both cases."

Malik said, "The dhihar of the slave isincumbent on him, and the fasting of the slave in the dhihar is twomonths. "

Malik said that there was no ila for a slave whopronounced a dhihar from his wife. That was because if he were to fastthe kaffara for pronouncing a dhihar, the divorce of the ila wouldcome to him before he had finished the fast.

firstly wasthat when she was set free she was given her choice about her husband,secondly, the Messenger of Allah, may Allah bless him and grant himpeace, said about her, 'The right of inheritance belongs to the personwho has set a person free,' thirdly, the Messenger of Allah, may Allahbless him and grant him peace, came in and there was a pot with meaton the boil. Bread and condiments were brought to him from the stockof the house. The Messenger of Allah, may Allah bless him and granthim peace, said, 'Didn't I see a pot with meat in it?' They said,'Yes, Messenger of Allah. That is meat which was given as sadaqa forBarira, and you do not eat sadaqa.' The Messenger of Allah, may Allahbless him and grant him peace, said, 'It is sadaqa for her, and it isa gift for us.' "

ahya related to me from Malik from Nafi that Abdullah ibn Umarsaid that a female slave who was the wife of a slave and then was setfree, had the right of choice as long as he did not have intercoursewith her.

Malik said, "If her husband has intercourse withher and she claims that she did not know, she still has the right ofchoice. If she is suspect and one does not believe her claim ofignorance, then she has no choice after he has had intercourse withher."

Yahya related to me from Malik from Ibn Shihab from Urwa ibn az-Zubayr that a mawla of the tribe of Banu Adi called Zabra told himthat she had been the wife of a slave when she was a slave-girl. Thenshe was set free and she sent a message to Hafsa, the wife of theProphet, may Allah bless him and grant him peace. Hafsa called her andsaid, "I will tell you something., but I would prefer that you did notact upon it. You have authority over yourself as long as your husbanddoes not have intercourse with you. If he has intercourse with you,you have no authority at all." Therefore she pronounced her divorcefrom him three times.

Yahya related to me from Malik that he had heard that Said ibnal-Musayyab said that if a man married a woman, and he was insane orhad a physical defect, she had the right of choice. If she wished shecould stay, and if she wished she could separate from him.

Malik said that if a slave-girl, who was the wife of a slave, wasset free before he had consummated the marriage, and she choseherself, then she had no bride-price and it was a pronouncement ofdivorce. That was what was done among them.

Yahya related to me that Malik heard Ibn Shihab say, "When a mangives his wife the right of choice, and she chooses him, that is notdivorce."

Malik added, "That is the best of what I haveheard."

Malik said that if a woman who had been given theright of choice by her husband chose herself, she was divorced trebly.If her husband said, "But I only gave her the right of choice in one,"he had none of that. That was the best of what he had heard.

Malik said, "If the man gives his wife the right of choice and shesays, 'I accept one', and he says, 'I did not mean that, I have giventhe right of choice in all three together,' then if she only acceptsone, she remains with him in her marriage, and that is not separationif Allah, the Exalted wills."

Yahya related. to me from Malik from Yahya ibn Said that Amrabint Abd ar-Rahman told him from Habiba bint Sahl al-Ansari that shehad been the wife of Thabit ibn Qays ibn Shammas. The Messenger ofAllah, may Allah bless him and grant him peace, went out for the dawnprayer, and found Habiba bint Sahl at his door in the darkness. TheMessenger of Allah, may Allah bless him and grant him peace, said toher, "Who is this?" She said, "I am Habiba bint Sahl, Messenger ofAllah." He said, "What do you want?" She said, "That Thabit ibn Qaysand I separate." When her husband, Thabit ibn Qays came, the Messengerof Allah, may Allah bless him and grant him peace, said to him, "Thisis Habiba bint Sahl. She mentioned what Allah willed that shemention." Habiba said, "Messenger of Allah, all that he has given meis with me!" The Messenger of Allah, may Allah bless him and grant himpeace, said to Thabit ibn Qays, "Take it from her," and he took itfrom her, and she stayed in the house of her family.

Yahya related to me from Malik from Nafi from a mawla of Safiyyabint Abi Ubayd that she gave all that she possessed to her husband ascompensation for her divorce from him, and Abdullah ibn Umar did notdisapprove of that.

Malik said that divorce was ratified fora woman who ransomed herself from her husband, when it was known thather husband was detrimental to her and was oppressive for her, and itwas known that he wronged her, and he had to return her property toher. Malik added, "This is what I have heard, and it is what is doneamong us."

Malik said, "There is no harm if a woman ransomsherself from her husband for more than he gave her."

Yahya related to me from Malik that he hadheard that Said ibn al-Musayyab and Sulayman ibn Yasar and Ibn Shihaball said that a woman who divorced for a compensation had the sameidda as a divorced woman - three periods.

Malik said that awoman who ransomed herself could not return to her husband except by anew marriage. If someone married her and then separated from herbefore he had intercourse with her, there was no idda against her fromthe recent marriage, and she rested on her first idda.

Maliksaid, "That is the best that I have heard on the matter."

Malik said, "If, when a woman offers to compensate her husband, hedivorces her straightaway, then that compensation is confirmed forhim. If he makes no response, and then at a later date, does divorceher, he is not entitled to that compensation."

Yahya related to me from Malik from Ibn Shihab that Sahl ibn Sadas-Saidi told him that Uwaymir al-Ajlani came to Asim ibn Adi al-Ansari and said to him, "Asim! What do you think a man who findsanother man with his wife should do? Should he kill him and then bekilled himself, or what should .he do? Asim! ask the Messenger ofAllah, may Allah bless him and grant him peace, about that for me."Asim asked the Messenger of Allah, may Allah bless him and grant himpeace, about it. The Messenger of Allah, may Allah bless him and granthim peace, was revolted by the questions and reproved them until whathe heard from the Messenger of Allah, may Allah bless him and granthim peace. was intolerable for Asim. When Asim returned to his people,Uwaymir came to him and said, " Asim! what did the Messenger of Allah,may Allah bless him and grant him peace, say to you?" Asim said toUwaymir, "You didn't bring me any good. The Messenger of Allah, mayAllah bless him and grant him peace, was revolted by the questionwhich I asked him." Uwaymir said, "By Allah! I will not stop until Iask him about it!" Uwaymir stood up and went to the Messenger ofAllah, may Allah bless him and grant him peace, in the middle of thepeople and said, "Messenger of Allah! What do you think a man whofinds another man with his wife should do? Should he kill him and thenbe killed himself, or what should he do?" The Messenger of Allah, mayAllah bless him and grant him peace, said, "Something has been sentdown about you and your wife, so go and bring her."

Sahlcontinued, "They mutually cursed one another in the presence of theMessenger, may Allah bless him and grant him peace, and I was presentwith the people. When they finished cursing each other, Uwaymir said,'I shall have lied about her, Messenger of Allah, if I keep her,' andpronounced the divorce three times before the Messenger of Allah, mayAllah bless him and grant him peace, ordered him to do it."

Malik said that Ibn Shihab said, "That was how the sunna of a couplemutually cursing each other was established (lian)."

Yahya related to me from Malik from Nafic from Abdullah ibn Umarthat a man cursed his wife in the time of the Messenger of Allah, mayAllah bless him and grant him peace, and disowned her child. TheMessenger of Allah, may Allah bless him and grant him peace, separatedthem and gave the child to the woman.

Malik said, "Allah theBlessed, the Exalted, said, 'The testimony of men who accuse theirwives but do not have any witnesses except themselves is to testify byAllah four times that he is being truthful, and a fifth time, that thecurse of Allah will be upon him, if he should be a liar. She willavoid punishment if she testifies by Allah four times that he is aliar, and a fifth time, that the wrath of Allah shall be upon her, ifhe should be telling the truth. ' "(Sura 24 ayat 6).

Maliksaid, "The sunna with us is that those who curse each other are neverto be remarried. If the man calls himself a liar, (i.e. takes back hisaccusation), he is flogged with the hadd-punishment, and the child isgiven to him, and his wife can never return to him. There is no doubtor dispute about this sunna among us. "

Malik said, "If a manseparates from his wife by an irrevocable divorce by which he cannotreturn to her, and then he denies the paternity of the child she iscarrying, whilst she claims that he is the father, and it is possibleby the timing, that he be so, he must curse her, and the child is notrecognised as his."

Malik said, "That is what is done amongus, and it is what I have heard from the people of knowledge."

Malik said that a man who accused his wife after he had divorcedher trebly while she was pregnant, and he had at first accepted beingthe father but then claimed that he had seen her committing adulterybefore he separated from her, was flogged with the hadd-punishment,and did not curse her.

If he denied the paternity of herchild after he had divorced her trebly, and he had not previouslyaccepted it, then he cursed her.

Malik said, "This is what Ihave heard."

Malik said, "The slave is in the same positionas the free man as regards making accusations and invoking mutualcurses (lian). He acts in the lian as the free man acts although thereis no hadd applied for slandering a female-slave."

Maliksaid, "The muslim slave-girl and the christian and jewish free womanalso do lian when a free muslim marries one of them and hasintercourse with her. That is because Allah - may He be blessed andExalted, said in His Book, 'As for those who accuse their wives,' andthey are their wives. This is what is done among us.

Maliksaid that a man who did the lian with his wife, and then stopped andcalled himself a liar after one or two oaths and he had not cursedhimself in the fifth one, had to be flogged with the hadd-punishment,but they did not have to be separated.

Malik said that if aman divorced his wife and then after three months the woman said, "Iam pregnant," and he denied paternity, then he had to do lian.

Malik said that the husband of a female slave who pronounced thelian on her and then bought her, was not to have intercourse with her,even if he owned her. The sunna which had been handed down about acouple who mutually cursed each other in the lian was that they werenever to return to each other.

Malik said that when a manpronounced the lian against his wife before he had consummated themarriage, she only had half of the bride price.

Yahya related to me from Malik that he had heard that `Urwa ibn az-Zubayr said that if the child of the woman against whom li`an had beenpronounced or the child of fornication, died, his mother inheritedfrom him her right in the Book of Allah the Exalted, and his maternalhalf-brothers had their rights. The rest was inherited by the ownersof his mother's wala' if she was a freed slave. If she was an ordinaryfree woman, she inherited her right, his maternal brothers inheritedtheir rights, and the rest went to the Muslims.

Malik said,"Iheard the same as that from Sulayman ibn Yasar, and it is what I sawthe people of knowledge in our city doing."

Yahya related to me from Malik from Ibn Shihab from Muhammad ibnAbd ar-Rahman ibn Thawban that Muhammad ibn Iyas ibn al-Bukayr said,"A man divorced his wife three times before he had consummated themarriage, and then it seemed good to him to marry her. Therefore, hewanted an opinion, and I went with him to ask Abdullah ibn Abbas andAbu Hurayra on his behalf about it, and they said, 'We do not thinkthat you should marry her until she has married another husband.' Heprotested that his divorcing her had been only once. Ibn Abbas said,'You threw away what you had of blessing.' "

Yahya related to me from Malik from Yahya ibn Said that Bukayribn Abdullah al-Ashajj informed him that Muawiya ibn Abi Ayyash al-Ansari told him that he was sitting with Abdullah ibn az-Zubayr andAsim ibn Umar ibn al-Khattab when Muhammad ibn Iyas ibn al-Bukayr cameup to them and said, "A man from the desert has divorced his wifethree times before consummating the marriage, what do you think?"Abdullah ibn az-Zubayr said "This is something about which we have nostatement. Go to Abdullah ibn Abbas and Abu Hurayra. I left them withA'isha. Ask them and then come and tell us." He went and asked them.Ibn Abbas said to Abu Hurayra, "Give an opinion, Abu Hurayra! Adifficult one has come to you." Abu Hurayra said, "One pronouncementseparates her and three makes her haram until she has married anotherhusband." Ibn Abbas said the like of that.

Malik said, "Thatis what is done among us, and when a man marries a woman who has beenmarried before, and he has not had intercourse with her, she istreated as a virgin - one pronouncement separates her and three makeher haram until she has married another husband."