Marriage

Yahya related to me from Malik that he had heard that when askedwhether it was permissible for a man to return to his wife if he haddivorced her irrevocably and then another man had married her afterhim and died before consummating the marriage, al-Qasim ibn Muhammadsaid, "It is not halal for the first husband to return to her."

Malik said, about the muhallil, that he could not remain in themarriage until he undertook a new marriage. If he had intercourse withher in that marriage, she had her dowry.

Yahya related to me from Malik from Abu'z-Zinad from al-Araj fromAbu Hurayra that the Messenger of Allah, may Allah bless him and granthim peace, said "One cannot be married to a woman and her paternalaunt, or a woman and her maternal aunt at the same time."

Yahya related to me from Malik from Yahya ibn Said that Said ibnal-Musayyab said, "It is forbidden to be married to a woman and herpaternal or maternal aunt at the same time, and for a man to haveintercourse with a female slave who is carrying another man's child."

Yahya related to me from Malik from Yahya ibn Said that Zayd ibnThabit asked whether it was halal for a man who married a woman andthen separated from her before he had cohabited with her, to marry hermother. Zayd ibn Thabit said, "No. The mother is prohibitedunconditionally. There are conditions, however about foster-mothers."

Malik said that a man who had committed fornication with a womanand the hadd-punishment had been applied to him for it, could marrythat woman's daughter and his son could marry the woman herself if hewished. That was because he had haram relations with her, and therelations Allah had made haram were from the relations made in a halalmanner or in a manner resembling marriage. Allah, the Blessed, theExalted, said, "Do not marry the women your fathers have married. "(Sura 4 ayat 21)

Malik said, "If a man were to marry a womanin her idda-period in a halal marriage and have relations with her, itwould be haram for his son to marry the woman. That is because thefather married her in a halal manner, and the hadd-punishment wouldnot have been applied to him. Any child who was born to him would beattached to him as the father. Just as it would be haram for the sonto marry a woman whom his father had married in her idda-period andhad relations with, so the woman's daughter would be haram for thefather if he had had sexual relations with her."

Yahya related to me from Malik from Nafi from Abdullah ibn Umarthat the Messenger of Allah, may Allah bless him and grant him peace,forbade shighar, which meant one man giving his daughter in marriageto another man on the condition that the other gave his daughter tohim in marriage without either of them paying the bride-price.

Yahya related to me from Malik from Abd ar-Rahman ibn al-Qasimfrom his father from Abd ar-Rahman and Mujamma the sons of Yazid ibnJariya al-Ansari from Khansa bint Khidam al-Ansariya that her fathergave her in marriage and she had been previously married. Shedisapproved of that, and went to the Messenger of Allah, may Allahbless him and grant him peace, and he revoked the marriage.

Yahya related to me from Malik from Abu'z-Zubayr al-Makki that acase was brought to Umar about a marriage which had only beenwitnessed by one man and one woman . He said, "This is a secretmarriage and I do not permit it. Had I been the first to come upon it,I would have ordered them to be stoned."

Yahya related to me from Malik from Ibn Shihab from Said ibn al-Musayyab and from Sulayman ibn Yasar that Tulayha al-Asadiya was thewife of Rushayd ath-Thaqafi. He divorced her, and she got married inher idda-period. Umar ibn al-Khattab beat her and her husband with astick several times, and separated them. Then Umar ibn al-Khattabsaid, "If a woman marries in her idda-period, and the new husband hasnot consummated the marriage, then separate them, and when she hascompleted the idda of her first husband, the other becomes a suitor.If he has consummated the marriage then separate them. Then she mustcomplete her idda from her first husband, and then the idda from theother one, and they are never to be reunited."

Malik added,''Said ibn al-Musayyab said that she had her dowry because he hadconsummated the marriage."

Malik said,"The practice with usconcerning a free woman whose husband dies, is that she does an iddaof four months and ten days and she does not marry if she doubts herperiod until she is free of any doubt or if she fears that she ispregnant."

Yahya related to me from Malik that he had heard that Abdullahibn Abbas and Abdullah ibn Umar were asked about a man who had a freewoman as a wife and then wanted to marry a slave-girl. Theydisapproved that he should combine the two of them.

Yahya related to me from Malik from Yahya ibn Said that Said ibnal-Musayyab said, "The slave girl is not married when there is a freewoman who is a wife unless the free woman wishes it. If the free womancomplies, she has two-thirds of the division of time."

Maliksaid, "A free man must not marry a slave-girl when he can afford tomarry a free-woman, and he should not marry a slave-girl when hecannot afford a free woman unless he fears fornication. That isbecause Allah, may he be Blessed and Exalted, says in His Book, 'Ifyou are not affluent enough to marry believing women, who aremuhsanat, take slave-girls who are believing women that your righthands own.' (Sura 4 ayat 24) He says, 'That is for those of you whofear al-anat.' "

Malik said, "Al-anat is fornication."

Yahya related to me from Malik from Ibn Shihab from Abu Abd ar-Rahman that Zayd ibn Thabit said that if a man divorced his slave-girlthree times and then bought her, she was not halal for him until shehad married another husband.

Yahya related to me from Malik that he had heard that Said ibnal-Musayyab and Sulayman ibn Yasar were asked whether, when a manmarried a slave of his to a slave-girl and the slave divorced herirrevocably, and then her master gave her to the slave, she was thenhalal for the slave by the possession of the right hand. They said,"No. She is not halal until she has married another husband."

Yahya related to me from Malik that he had asked Ibn Shihab abouta man who had a slave-girl as a wife, and then he bought her, anddivorced her once. He said, "She is halal for him by the possession ofthe right hand as long as he does not make his divorce irrevocable. Ifhe irrevocably divorces her, she is not halal for him by thepossession of the right hand until she has married another husband."

Malik said that if a man rnarried a female slave and then shehad a child by him, and then he bought her, she was not an umm waladfor him because of the child born to him while she belonged toanother, until she had had a child by him while she was in hispossession after he had purchased her.

Malik said, "If hebuys her and she is pregnant by him and she then gives birth while shebelongs to him, she is his umm walad by that pregnancy, according towhat we think, and Allah knows best."

Yahya related to me from Malik from Ibn Shihab from Ubaydullahibn Abdullah ibn Utba ibn Masud from his father that Umar ibn al-Khattab was asked about a woman and her daughter who were in thepossession of the right hand, and whether one could have intercoursewith one of them after the other Umar said, "I dislike both beingpermitted together." He then forbade that.

Yahya related to me from Malik from Ibn Shihab from Qabisa ibnDhu'ayb that a man asked Uthman ibn Affan whether one could haveintercourse with two sisters who one owned. Uthman said, "One ayatmakes them halal, and one ayat makes them haram. As for me, I wouldn'tlike to do it." The man left him and met one of the companions of theMessenger of Allah, may Allah bless him and grant him peace, and askedhim about it, and he said, "Had I any authority and I found someonewho had done it, I would punish him as an example."

IbnShihab added, "I think that it was Ali ibn Abi Talib. "

Yahya related to me from Malik that he had heard that az-Zubayribn al-Awwam said the like of that.

Malik said that if a manhad sexual relations with a female slave that he owned, and then hewanted to also have relations with her sister, the sister was nothalal for a man until intercourse with the slave-girl had been madeharam for him by marriage, setting free, kitaba, or the like of that -for instance, if he had married her to his slave or someone other thanhis slave.

Yahya related to me from Malik thatAbd arRahman ibn al-Mujabbir said that Salim ibn Abdullah gave his sona slave-girl and said, "Do not go near her, for I wanted her, and didnot act towards her."

Yahya related to me from Malik from Yahya ibn Said that AbuNahshal ibn al-Aswad said to al-Qasim ibn Muhammad,"I saw a slave-girlof mine uncovered in the moonlight, and so I sat on her as a man sitson a woman. She said that she was menstruating, so I stood up and havenot gone near her after that. Can I give her to my son to haveintercourse with?" Al-Qasim forbade that.

Malik said, "It is not halal to marry a christian or jewishslave-girl because Allah the Blessed, the Exalted, said in His Book,'Believing women who are muhsanat and women of those who were giventhe Book before you who are muhsanat', (sura 5 ayat 6) and they arefree women from the Christians and Jews. Allah, the Blessed, theExalted, said in His Book, 'If you are not affluent enough to marrybelieving women who are muhsanat, take believing slave-girls whom yourright hands own.' " (Sura 4 ayat 24)

Malik said, "In ouropinion, Allah made marriage to believing slave-girls halal, and Hedid not make halal marriage to christian and jewish slave-girls fromthe People of the Book."

Malik said, "The christian andjewish slave-girl are halal for their master by right of possession,but intercourse with a magian slave-girl is not halal by the right ofpossession."