Marriage

Yahya related to me from Malik from Ibn Shihab that Rafi ibnKhadij married the daughter of Muhammad ibn Maslama al-Ansari. She waswith him until she grew older, and then he married a young girl andpreferred the young girl to her. She begged him to divorce her, so hedivorced her and then he gave her time until she had almost finishedher idda period and then he returned and still preferred the younggirl. She therefore asked him to divorce her. He divorced her once,and then returned to her, and still preferred the young girl, and sheasked him to divorce her. He said, "What do you want? There is onlyone divorce left. If you like, continue and put up with what you seeof preference, and if you like, I will separate from you." She said,"I will continue in spite of the preference." He kept her in spite ofthat. Rafi did not see that he had done any wrong action when sheremained with him in spite of preference.

Yahya related to me from Malik from Muhammad ibn Yahya ibn Habbanfrom al-Araj from Abu Hurayra that the Messenger of Allah, may Allahbless him and grant him peace, said, "Do not ask for a woman inmarriage when another muslim has already done so."

Yahya related to me from Malik from Nafi from Abdullah ibn Umarthat the Messenger of Allah, may Allah bless him and grant him peace,said, "Do not ask for a woman in marriage when another muslim hasalready done so."

Malik said, "The explanation of thestatement of the Messenger of Allah, may Allah bless him and grant himpeace, according to what we think - and Allah knows best - is that 'Donot ask for a woman in marriage when another muslim has already doneso' means that when a man has asked for a woman in marriage, and shehas inclined to him and they have agreed on a bride-price, which shehas suggested and with which they are mutually satisfied, it isforbidden for another man to ask for that woman in marriage. It doesnot mean that when a man has asked for a woman in marriage, and hissuit does not agree with her and she does not incline to him that noone else can ask for her in marriage. That is a door to misery forpeople."

Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasimthat his father said about the word of Allah, the Blessed, theExalted, "There is no fault in you about the proposal you offer towomen, or hide in yourselves. Allah knows that you will be mindful ofthem; but do not make troth with them secretly without honourablewords," (Sura 2 ayat 235) that it referred to a man saying to a womanwhile she was still in her idda after the death of her husband, "Youare dear to me, and I desire you, and Allah brings provision andblessing to you," and words such as these.

Malik related to me from Abdullah ibn al-Fadl from Nafi ibnJubayr ibn Mutim from Abdullah ibn Abbas that the Messenger of Allah,may Allah bless him and grant him peace, said, "A woman who has beenpreviously married is more entitled to her person than her guardian,and a virgin must be asked for her consent for herself, and herconsent is her silence "

Yahya related to me from Malik that he had heard that Said ibnal-Musayyab had said that Umar ibn al-Khattab said, "A woman is onlymarried with the consent of her guardian, someone of her family withsound judgement or the Sultan.

Yahya related to me from Malik that he had heard that al-Qasimibn Muhammad and Salim ibn Abdullah were marrying off their daughtersand they did not consult them.

Malik said, "That is what isdone among us about the marriage of virgins."

Malik said, "Avirgin has no right to her property until she enters her house and herstate (competence, maturity etc.) is known for sure."

Yahya related to me from Malik that he had heard that al-Qasimibn Muhammad and Salim ibn Abdullah and Sulayman ibn Yasar said aboutthe virgin given by her father in marriage without her permission,"That is binding on her."

Yahya related to me from Malik from Malik from Abu Hazim ibnDinar from Sahl ibn Sad as-Saidi that a woman came to the Messenger ofAllah, may Allah bless him and grant him peace, and said, "Messengerof Allah! I have given myself to you." She stood for a long time, andthen a man got up and said, "Messenger of Allah, marry her to me ifyou have no need of her." The Messenger of Allah, may Allah bless himand grant him peace, said, "Do you have anything to give her as abride-price?" He said, "I possess only this lower garment of mine."The Messenger of Allah, may Allah bless him and grant him peace, said,"If you give it to her you will not have a garment to wear so look forsomething else." He said, "I have nothing else." He said, "Look forsomething else, even if it is only an iron ring." He looked, and foundthat he had nothing. The Messenger of Allah, may Allah bless him andgrant him peace, said, "Do you know any of the Qur'an?" He said, "Yes.I know such-and-such a sura and such-and-such a sura," which he named.The Messengerof Allah, may Allah bless him and grant him peace, saidto him, "I have married her to you for what you know of the Qur'an."

Yahya related to me from Malik from Yahya ibn Said that Said ibnal-Musayyab had said that Umar ibn al-Khattab said, "If a man marriesa woman who is insane, or has leprosy or white leprosy, without beingtold of her condition by her guardian, and he has sexual relationswith her, she keeps her bride-price in its entirety. Her husband hasdamages against her guardian."

Malik said, "The husband hasdamages against her guardian when the guardian is her father, brother,or one who is deemed to have knowledge of her condition. If theguardian who gives her in marriage is a nephew, a mawla or a member ofher tribe who is not deemed to have knowledge of her condition, thereare no damages against him, and the woman returns what she has takenof her bride-price, and the husband leaves her whatever amount isthought to be fair."

Yahya related to me from Malik from Nafi that the daughter ofUbaydullah ibn Umar whose mother was the daughter of Zayd ibn al-Khattab, married the son of Abdullah ibn Umar. He died and had not yetconsummated the marriage or specified her bride-price. Her motherwanted the bride-price, and Abdullah ibn Umar said, "She is notentitled to a bride-price. Had she been entitled to a bride-price, wewould not have kept it and we would not do her an injustice. "Themother refused to accept that. Zayd ibn Thabit was brought toadjudicate between them and he decided that she had no bride-price,but that she did inherit.

Yahya related to me from Malik that he had heard that Umar ibnAbd al-Aziz during his khalifate, wrote to one of his governors,"Whatever a father, or guardian, who gives someone in marriage, makesa condition in the way of unreturnable gift or of favour, belongs tothe woman if she wants it."

Malik spoke about a woman whosefather gave her in marriage and made an unreturnable gift a conditionof the bride-price which was to be given. He said, "Whatever is givenas a condition by which marriage occurs belongs to the woman if shewants it. If the husband parts from her before the marriage isconsummated, the husband has half of the unreturnable gift by whichthe marriage occurred."

Malik said about a man who marriedoff his young son and the son had no wealth at all, that the bride-price was obliged of the father if the young man had no property onthe day of marriage. If the young man did have property the bride-price was taken from his property unless the father stipulated that hewould pay the bride-price. The marriage was affirmed for the son if hewas a minor only if he was under the guardianship of his father.

Malik said that if a man divorced his wife before he hadconsummated the marriage and she was a virgin, her father returnedhalf of the bride-price to him. That half was permitted to the husbandfrom the father to compensate him for his expenses.

Maliksaid that that was because Allah, the Blessed, the Exalted, said inHis Book, "Unless they (women with whom he had not consummatedmarriage) make remission or he makes remission to him in whose hand isthe knot of marriage." (Sura 2 ayat 237). (He being the father of avirgin daughter or the master of a female slave.)

Malik said,"That is what I have heard about the matter, and that is how thingsare done among us."

Malik said that a jewish or christianwoman who was married to a jew or christian and then became muslimbefore the marriage had been consummated, did not keep anything fromthe bride-price.

Malik said, "I do not think that womenshould be married for less than a quarter of a dinar. That is thelowest amount for which cutting off the hand is obliged ."

Yahya related to me from Malik from Yahya ibn Said from Said ibnal-Musayyab that 'Umar ibn al-Khattab decided about the woman who wasmarried by a man and the marriage had been consummated, that thebride-price was obligatory.

Yahya related tome from Malik that he had heard that Said ibn al-Musayyab said, "Whena man comes to his wife in her room, he is believed. When she comes tohim in his room, she is believed."

Malik commented, "I thinkthat this refers to sexual intercourse. When he comes in to her in herroom and she says, 'He has had intercourse with me' and he says, 'Ihave not touched her', he is believed. When she comes in to him in hisroom and he says, 'I have not had intercourse with her' and she says,'He had intercourse with me', she is believed."

Yahya related to me from Malik from Abdullah ibn Abi Bakr ibnMuhammad ibn Amr ibn Hazm from Abd al-Malik ibn Abi Bakr ibn Abd ar-Rahman ibn al-Harith ibn Hisham al-Makhzumi from his father that whenthe Messenger of Allah, may Allah bless him and grant him peace,married Umm Salama and then spent the night with her, he said to her,"You are not being humbled in your right. If you wish, I will staywith you for seven nights as I stayed seven nights with the others. Ifyou wish, I will stay with you for three nights, and then visit theothers in turn." She said, "Stay three nights."

Yahya related to me from Malik from Humayd at-Tawil that Anas ibnMalik said, "A virgin has seven nights, and a woman who has beenpreviously married has three nights."

Malik affirmed, "Thatis what is done among us."

Malik added, "If the man hasanother wife, he divides his time equally between them after thewedding nights. He does not count the wedding nights against the onehe has just married."

Yahya related to me from Malik that he had heard that Said ibnal-Musayyab was asked about a woman who made a stipulation on herhusband not to take her away from her town. Said ibn al-Musayyab said,"He takes her away if he wishes."

Malik said, "The customamong us is that when a man marries a woman, and he makes a conditionin the marriage contract that he will not marry after her or take aconcubine, it means nothing unless there is an oath of divorce orsetting-free attached to it. Then it is obliged and required of him."

Yahya related to me from Malik from al-Miswar ibn Rifaa al-Quradhi from az-Zubayr ibn Abd ar-Rahman ibn az-Zubayr that Rifaa ibnSimwal divorced his wife, Tamima bint Wahb, in the time of theMessenger of Allah, may Allah bless him and grant him peace, threetimes. Then she married Abd ar-Rahman ibn az-Zubayr and he turned fromher and could not consummate the marriage and so he parted from her.Rifaa wanted to marry her again and it was mentioned to the Messengerof Allah, may Allah bless him and grant him peace, and he forbade himto marry her. He said, "She is not halal for you until she has tastedthe sweetness of intercourse."

Yahya related to me from Malik from Yahya ibn Said from al-Qasimibn Muhammad that A'isha, the wife of the Prophet, may Allah bless himand grant him peace, said when asked whether it was permissible for aman to marry again a wife he had divorced irrevocably if she hadmarried another man who divorced her before consummating the marriage,"Not until she has tasted the sweetness of intercourse."