Divorce

Yahya related to me from Malik that he had heard that Said ibnal-Musayyab and Ibn Shihab and Sulayman ibn Yasar all said, "The iddaof the woman with a khul divorce is three periods."

Yahya related to me from Malik that he heard Ibn Shihab say, "Theidda of the divorced woman is reckoned by the menstrual cycles even ifshe is estranged ." (The reason the idda is normally reckoned by themenstrual cycle is to see whether the woman is pregnant or not.)

Yahya related to me from Malik from Yahya ibn Said from a man ofthe Ansar that his wife asked him for a divorce, and he said to her,"When you have had your period, then tell me." When she had herperiod, she told him. He said, "When you are purified then tell me."When she was purified, she told him and he divorced her.

Malik said, "This is the best of what I have heard about it."

Yahya related to me from Malik thal Yahya ibn Said heard al-Qasimibn Muhammad and Sulayman ibn Yasar both mention that Yahya ibn Saidibn al-As divorced the daughter of Abd ar-Rahman ibn al-Hakamirrevocably, so Abd ar-Rahman ibn al-Hakam took her away A'isha ummal-muminin sent to Marwan ibn al-Hakam who was the Amir of al-Madinaat that time. She said, "Fear Allah and make him return the woman toher house." Marwan said in what Sulayman related, ''Abd ar-Rahman hasthe upper hand over me." Marwan said in what al-Qasim related, "Hasn'tthe affair of Fatima bint Qays reached you?" A'isha said, "You areforced to mention the story of Fatima " Marwan said, "If you know thatevil, whatever evil there was between those two is enough for you."(See hadith 67.)

Yahya related to me from Malik from Nafi that the daughter ofSaid ibn Zayd ibn Amr ibn Nufayl was the wife of Abdullah ibn Umar ibnUthman ibn Affan, and he divorced her irrevocably and she moved out.Abdullah ibn Umar rebuked her for that.

Yahya related to me from Malik from Nafi that Abdullah ibn Umardivorced one of his wives in the house of Hafsa, the wife of theProphet, may Allah bless him and grant him peace, while he was on theway to the mosque. He went another route from behind the houses beingaverse to ask permission to enter until he returned to her.

Yahya related to me from Malik from Yahya ibn Said that Said ibnal-Musayyab was asked who was obliged to pay the rent for a womanwhose husband divorced her while she was in a leased house. Said ibnal-Musayyab said, "Her husband is obliged to pay it." Someone asked,"what if her husband does not have it?" He said, "Then she must payit." Someone asked, "And if she does not have it?" He said, "Then theAmir must pay it."

Yahya related to me from Malik from Abdullah ibn Yazid, the mawlaof al-Aswad ibn Sufyan from Abu Salama ibn Abd ar-Rahman ibn Awf fromFatima bint Qays that Abu Amr ibn Hafs divorced her absolutely whilehe was away in Syria. His agent sent her some barley and she wasdispleased with it, saying, "By Allah, I don't expect anything fromyou." She went to the Messenger of Allah, may Allah bless him andgrant him peace, and mentioned it to him. He said, "You have nomaintenance." He then ordered her to spend her idda in the house ofUmm Sharik. Then he said, "This is a woman whom my companions visit.Spend the idda in the house of Ibn Umm Maktum. He is a blind man andyou can undress at his home. When you are free to remarry, tell me."

She continued, "When I was free to remarry, I mentioned tohim that Muawiya ibn Abi Sufyan and Abu Jahm ibn Hisham had asked forme in marriage. The Messenger of Allah, may Allah bless him and granthim peace, said, 'As for Abu Jahm, he never puts down his stick fromhis shoulder (i.e. he is always travelling), and as for Muawiya he isa poor man with no property. Marry Usama ibn Zayd.' I objected to himand he said, 'Marry Usama ibn Zayd,' so I married him, and Allah putgood in it and I was content with him."

Yahya related to me from Malik that he heard Ibn Shihab say, "Thewoman who is absolutely divorced does not leave her house until she isfree to remarry. She has no maintenance unless she is pregnant. Inthat circumstance the husband spends on her until she gives birth."

Malik said, "This is what is done among us."

Malik said, "What is done among us when a slave divorces a slave-girl when she is a slave and then she is set free, is that her idda isthe idda of a slave-girl, and her being set free does not change heridda whether or not he can still return to her. Her idda is notaltered."

Malik added, "The hadd-punishment which a slaveincurs is the same as this. When he is freed after he has incurred butbefore the punishment has been executed, his hadd is the hadd of theslave."

Malik said, "When a free man divorces a slave-girlthree times, her idda is two periods. When a slave divorces a freewoman twice, her idda is three periods."

Malik said about aman who had a slave-girl as a wife, and he bought her and set herfree, ''Her idda is the idda of a slave-girl, i.e. two periods, aslong as he has not had intercourse with her. If he has had intercoursewith her after buying her and before he set her free, she only has towait until one period has passed . "

Yahya related to me from Malik from Yahya ibn Said that Saidibn al-Musayyab said, "Divorce belongs to men, and women have theidda."

Yahya related to me from Malik from Ibn Shihab that Said ibn al-Musayyab said, "The idda of the woman who bleeds constantly is ayear."

Malik said, "What is done among us about a divorcedwoman whose periods stop when her husband divorces her is that shewaits nine months. If she has not had a period in them, she has anidda of three months. If she has a period before the end of the threemonths, she accepts the period. If another nine months pass withouther having a period, she does an idda of three months. If she has asecond period before the end of those three months, she accepts theperiod. If nine months then pass without a period, she does an idda ofthree months. If she has a third period, the idda of the period iscomplete. If she does not have a period, she waits three months, andthen she is free to marry. Her husband can return to her before shebecomes free to marry unless he made her divorce irrevocable."

Malik said, "The sunna with us is that when a man divorces hiswife and has the option to return to her, and she does part of heridda and then he returns to her and then parts from her before he hashad intercourse with her, she does not add to what has passed of heridda. Her husband has wronged himself and erred if he returned to herand had no need of her."

Malik said, "What is done among usis that if a woman becomes a muslim while her husband is a kafir andthen he becomes muslim, he is entitled to her as long as she is in heridda. If her idda is finished, he has no access to her. If heremarries her after the end of her idda, however, that is not countedas divorce. Islam removed her from him without divorce."

Yahya related to me from Malik that he had heard that Ali ibn AbiTalib said about the two arbiters about whom Allah, the Exalted,said,"If you fear a breach between the two, appoint an arbiter fromhis people, and an arbiter from her people. If they desire to setthings aright, Allah will make peace between them, surely Allah isKnowing, Aware," (Sura 4 ayat 35), that the separation and the joiningwere overseen by the two of them.

Malik said, "That is thebest of what I have heard from the people of knowledge. Whatever thetwo arbiters say concerning separation or joining is taken intoconsideration "

"As for his wives, it is divorce as he said, and as for hisstatement, 'Every woman I marry is divorced', if he did not name aspecific woman, tribe, or land, or such, it is not binding on him andhe can marry as he wishes. As for his property, he gives a third of itaway as sadaqa."

Yahya related to me from Malik from Ibn Shihab that Said ibn al-Musayyab said, "If someone marries a woman and cannot have intercoursewith her, there is a deadline of a year set for him to haveintercourse with her. If he does not, they are separated."

Yahya related to me from Malik that Ibn Shihab said, "I haveheard that the Messenger of Allah, may Allah bless him and grant himpeace, said to a man from Thaqif who had ten wives when he becamemuslim, 'Take four and separate from the rest.' "

Yahya related to me from Malik that Ibn Shihab said that he hadheard Said ibn al-Musayyab, Humayd ibn Abd ar-Rahman ibn Awf,Ubaydullah ibn Abdullah ibn Utba ibn Masud, and Sulayman ibn Yasarallsay, that they had heard Abu Hurayra say that he had heard Umar ibnal-Khattab say, "If a woman is divorced by her husband once or twice,and he leaves her until she is free to marry and she marries anotherhusband and he dies or divorces her, and then she marries her firsthusband, she is with him according to what remains of her divorce."

Malik said, "That is what is done among us and there is nodispute about it."

Yahya related to me from Malik from Thabit ibn al-Ahnaf that hemarried an umm walad of Abd ar-Rahman ibn Zayd ibn al-Khattab. Hesaid, "Abdullah ibn Abd ar-Rahman ibn Zayd ibn al-Khattab summoned meand I went to him. I came in upon him and there were whips and twoiron fetters placed there, and two of his slaves whom he had made tosit there. He said, 'Divorce her, or by He by whom one swears, I willdo such-and-such to you!' I said, 'It is divorce a thousand times.'Then I left him and I saw Abdullah ibn Umar on the road to Makka and Itold him about my situation. Abdullah ibn Umar was furious, and said,'That is not divorce, and she is not haram for you, so return to yourhome.' I was still not at ease so I went to Abdullah ibn az-Zubayr whowas the Amir of Makka at that time. I told him about my situation andwhat Abdullah ibn Umar had said to me. Abdullah ibn az-Zubayr said tome, 'She is not haram for you, so return to your home,' and he wroteto Jabir ibn al-Aswad az-Zuhra who was the Amir of Madina and orderedhim to punish Abdullah ibn Abdar-Rahman and to have him leave me andmy family alone. I went to Madina, and Safiyya, the wife of Abdullahibn Umar fitted out my wife so that she could bring her to my housewith the knowledge of Abdullah ibn Umar. Then I invited Abdullah ibnUmar on the day of my wedding to the wedding feast and he came."

Yahya related to me from Malik that Abdullah ibn Dinar said, "Iheard Abdullah ibn Umar recite from the Qur'an, 'Prophet! When youdivorce women, divorce them at the beginning of their idda.'"

Malik said, "He meant by that, to make one pronouncement of divorce atthe beginning of each period of purity."

Yahya related to me from Malik from Hisham ibn Urwa that hisfather said, "It used to be that a man would divorce his wife and thenreturn to her before her idda was over, and that was alright, even ifhe divorced her a thousand times. The man went to his wife and thendivorced her and when the end of her idda was in sight, he took herback and then divorced her and said, 'No! By Allah, I will not go toyou and you will never be able to marry again.' Allah, the Blessed,the Exalted, sent down, 'Divorce is twice, then honourable retentionor setting free kindly.' People then turned towards divorce in a newlight from that day whether or not they were divorced or notdivorced."