The Book on Divorce and Li'an

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Qutaybah ibn Sa'id narrated to us: Hammad ibn Zayd narrated to us, from Ayyub, from Muhammad ibn Sirin, from Yunus ibn Jubayr, who said: I asked Ibn Umar about a man who divorced his wife while she was menstruating. He said: Do you know Abd Allah ibn Umar? He divorced his wife while she was menstruating, so Umar asked the Prophet about it, and he ordered him to take her back. I said: Is that divorce counted? He replied: What else? Do you think that if he were incapable and foolish...

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Hannad narrated to us: Waki narrated to us, from Sufyan, from Muhammad ibn Abd al-Rahman, the client of the family of Talhah, from Salim, from his father: He divorced his wife while she was menstruating. Umar asked the Prophet about it, and he said: Tell him to take her back, then divorce her while she is pure or pregnant. Abu Isa said: The hadith of Yunus ibn Jubayr, from Ibn Umar, is hasan sahih, as is the hadith of Salim, from Ibn Umar. This report has been transmitted through several routes from Ibn Umar, from the Prophet. Scholars among the Companions of the Prophet and others act on this: the divorce according to the Sunnah is to divorce her while she is in a state of purity and he has not had intercourse with her during that period. Some said that divorcing her three times while she is pure is also according to the Sunnah; this is the view of al-Shafi'i and Ahmad ibn Hanbal. Others said that it is according to the Sunnah only to divorce her once at a time; this is the view of Sufyan al-Thawri and Ishaq. They said that a pregnant woman may be divorced whenever one wishes; this is the view of al-Shafi'i, Ahmad, and Ishaq. Others said to divorce her once each month.

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Hannad narrated to us: Qabisah narrated to us, from Jarir ibn Hazim, from al-Zubayr ibn Sa'id, from Abd Allah ibn Yazid ibn Rukanah, from his father, from his grandfather, who said: I came to the Prophet and said: O Messenger of Allah, I have divorced my wife irrevocably. He said: What did you intend by it? I said: One divorce. He said: By Allah? I said: By Allah. He said: Then it is as you intended. Abu Isa said: We know this hadith only through this route. I asked Muhammad about it, and he said that it is inconsistent. It is also reported from Ikrimah, from Ibn Abbas, that Rukanah divorced his wife three times. Scholars among the Companions of the Prophet and others differed about an irrevocable divorce. It is reported that Umar ibn al-Khattab counted it as one, while Ali counted it as three. Some scholars said that the husband's intention governs: if he intended one, it is one; if three, it is three; and if two, it counts as one. This is the view of al-Thawri and the scholars of Kufa. Malik ibn Anas said that if he had consummated the marriage, an irrevocable divorce counts as three. Al-Shafi'i said that if he intended one, it is one and he may take her back; if he intended two, it is two; and if he intended three, it is three.

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Ali ibn Nasr ibn Ali narrated to us: Sulayman ibn Harb narrated to us: Hammad ibn Zayd narrated to us. I asked Ayyub: Do you know of anyone who said that “your affairs are in your hands” counts as three divorces, other than al-Hasan? He said: No, only al-Hasan. Then he said: Allah forgive me—except for what Qatadah narrated to me, from Kathir, the client of Ibn Samurah, from Abu Salamah, from Abu Hurairah, from the Prophet, who said: Three. Ayyub said: I met Kathir, the client of Ibn Samurah, and asked him, but he did not recognize the report. I went back to Qatadah and told him; he said: He forgot. Abu Isa said: This hadith is gharib; we know it only through Sulayman ibn Harb, from Hammad ibn Zayd. I asked Muhammad about it, and he said: Sulayman ibn Harb narrated it to us from Hammad ibn Zayd in this form, but it is actually a statement of Abu Hurairah, not a report traced to the Prophet. The hadith of Abu Hurairah is not known as traced back to the Prophet. Ali ibn Nasr was a precise hadith scholar. Scholars differed about the phrase “your affairs are in your hands.” Some scholars among the Companions of the Prophet and others, including Umar ibn al-Khattab and Abd Allah ibn Masud, said it counts as one. This is also the view of more than one Successor and later scholar. Uthman ibn Affan and Zayd ibn Thabit said that the ruling is whatever she decrees. Ibn Umar said: If he placed her affairs in her own hands and she divorced herself three times, but the husband denied it and said, “I placed her affairs in her hands only for one,” then the husband is asked to swear an oath, and his word is accepted with his oath. Sufyan and the scholars of Kufa followed the view of Umar and Abd Allah. Malik ibn Anas said that the ruling is whatever she decrees; this is also Ahmad's view. Ishaq followed Ibn Umar's view.

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Muhammad ibn Bashshar narrated to us: Abd al-Rahman ibn Mahdi narrated to us: Sufyan narrated to us, from Isma'il ibn Abi Khalid, from al-Sha'bi, from Masruq, from Aishah, who said: The Messenger of Allah gave us the choice, and we chose him. Does that count as a divorce? Muhammad ibn Bashshar narrated to us: Abd al-Rahman ibn Mahdi narrated to us: Sufyan narrated to us, from al-A'mash, from Abu al-Duha, from Masruq, from Aishah, with a similar report. Abu Isa said: This hadith is hasan sahih. Scholars differed about this choice. It is reported from Umar and Abd Allah ibn Masud that they said: If she chooses herself, it is one irrevocable divorce. It is also reported from them that they said: It is one revocable divorce, and if she chooses her husband, nothing happens. It is reported from Ali that if she chooses herself, it is one irrevocable divorce, and if she chooses her husband, it is one revocable divorce. Zayd ibn Thabit said: If she chooses her husband, it is one divorce; if she chooses herself, it is three. Most scholars and jurists among the Companions of the Prophet and those after them followed the view of Umar and Abd Allah; this is the view of al-Thawri and the scholars of Kufa. Ahmad ibn Hanbal followed Ali's view.

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Hannad narrated to us: Jarir narrated to us, from Mughirah, from al-Sha'bi, who said: Fatimah bint Qays said: My husband divorced me three times during the time of the Prophet, and the Messenger of Allah said: You are entitled to neither lodging nor maintenance. Mughirah said: I mentioned this to Ibrahim, and he said: Umar said, “We will not abandon the Book of Allah and the Sunnah of our Prophet on the basis of the statement of a woman, when we do not know whether she remembered correctly or forgot.” Umar used to grant her lodging and maintenance. Ahmad ibn Mani narrated to us: Hushaym narrated to us: Husayn, Isma'il, and Mujalid informed us. Hushaym also said: Dawud narrated to us, from al-Sha'bi, who said: I visited Fatimah bint Qays and asked her about the Messenger of Allah's ruling in her case. She said: Her husband divorced her irrevocably, and she disputed with him over lodging and maintenance, but the Prophet granted her neither. In Dawud's version she said: He ordered me to observe my waiting period in the house of Ibn Umm Maktum. Abu Isa said: This hadith is hasan sahih. This is the view of some scholars, including al-Hasan al-Basri, Ata ibn Abi Rabah, and al-Sha'bi, and it is the view of Ahmad and Ishaq. They said a woman whose divorce is irrevocable is entitled to neither lodging nor maintenance if her husband has no right to take her back. Other scholars among the Companions, including Umar and Abd Allah, said that a woman divorced three times is entitled to lodging and maintenance. This is the view of Sufyan al-Thawri and the scholars of Kufa. Other scholars said she is entitled to lodging but not maintenance; this is the view of Malik ibn Anas, al-Layth ibn Sa'd, and al-Shafi'i. Al-Shafi'i said: We granted her lodging on the basis of Allah's Book: “Do not turn them out of their homes, nor should they leave, unless they commit a manifest indecency.” They said this means obscene speech—that she speaks abusively to her husband's family. They argued that the Prophet did not grant Fatimah bint Qays lodging because she spoke abusively to her husband's family. Al-Shafi'i said she is not entitled to maintenance, based on the Messenger of Allah's report concerning Fatimah bint Qays.

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Ahmad ibn Mani narrated to us: Hushaym narrated to us: Amir al-Ahwal narrated to us, from Amr ibn Shu'ayb, from his father, from his grandfather, who said: The Messenger of Allah said: A person cannot make a vow concerning what he does not own, cannot free what he does not own, and cannot divorce what he does not own. It is also reported in this chapter from Ali, Muadh ibn Jabal, Jabir, Ibn Abbas, and Aishah. Abu Isa said: The hadith of Abd Allah ibn Amr is hasan sahih and is the best report transmitted on this subject. This was the view of most scholars among the Companions of the Prophet and others. It is reported from Ali ibn Abi Talib, Ibn Abbas, Jabir ibn Abd Allah, Sa'id ibn al-Musayyab, al-Hasan, Sa'id ibn Jubayr, Ali ibn al-Husayn, Shurayh, Jabir ibn Zayd, and more than one of the jurists among the Successors; it is also the view of al-Shafi'i. It is reported from Ibn Masud that a specifically designated woman would be divorced. Ibrahim al-Nakha'i, al-Sha'bi, and other scholars said that if a time is specified, it takes effect when that time arrives. This is the view of Sufyan al-Thawri and Malik ibn Anas: if a man names a particular woman, specifies a time, or says, “If I marry in such-and-such region,” then if he marries, the divorce takes effect. Ibn al-Mubarak took a stricter position in this chapter and said: If he does so, I would not say that his wife is forbidden to him. Ahmad said: If he marries, I would not tell him to separate from his wife. Ishaq said: I allow the ruling for a specifically designated woman on the basis of Ibn Masud's hadith, but if he marries her, I would not say his wife is forbidden to him. Ishaq was more lenient when no particular woman had been designated. It is reported that Abd Allah ibn al-Mubarak was asked about a man who swore by divorce that he would not marry, then later wished to marry: Could he follow the view of the jurists who allowed this? Abd Allah ibn al-Mubarak said: If he already believed this view to be correct before facing this issue, he may follow their view. But if he did not accept it until he was tested by the situation and then wanted to follow their view, I do not consider that permissible.

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Muhammad ibn Yahya al-Naysaburi narrated to us: Abu Asim narrated to us, from Ibn Jurayj, who said: Muzahir ibn Aslam narrated to me, from al-Qasim, from Aishah, that the Messenger of Allah said: The divorce of an enslaved woman is two divorces, and her waiting period is two menstrual cycles. Muhammad ibn Yahya said: Abu Asim also narrated this to us from Muzahir, with this report. It is also reported in this chapter from Abd Allah ibn Umar. Abu Isa said: We know the hadith of Aishah as a report traced to the Prophet only through Muzahir ibn Aslam; we know no other scholarly report from Muzahir. Scholars among the Companions of the Prophet and others act on this. It is the view of Sufyan al-Thawri, al-Shafi'i, Ahmad, and Ishaq.

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Qutaybah narrated to us: Abu Awanah narrated to us, from Qatadah, from Zurara ibn Awfa, from Abu Hurairah, who said: The Messenger of Allah said: Allah has pardoned my community for the thoughts that occur within themselves, so long as they do not speak of them or act upon them. Abu Isa said: This hadith is hasan sahih. Scholars act on this: if a man only entertains the thought of divorce, nothing takes effect until he speaks it aloud.

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Qutaybah narrated to us: Hatim ibn Isma'il narrated to us, from Abd al-Rahman ibn Ardak, from Ata, from Ibn Mahak, from Abu Hurairah, who said: The Messenger of Allah said: Three matters count whether spoken seriously or in jest: marriage, divorce, and taking a wife back. Abu Isa said: This hadith is hasan gharib. Scholars among the Companions of the Prophet and others act on this. Abu Isa said: Abd al-Rahman is Abd al-Rahman ibn Habib ibn Ardak al-Madani, and Ibn Mahak is, in my view, Yusuf ibn Mahak.

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Mahmud ibn Ghaylan informed us: al-Fadl ibn Musa narrated to us, from Sufyan, who informed us that Muhammad ibn Abd al-Rahman, the client of the family of Talhah, narrated to us from Sulayman ibn Yasar, from al-Rubayyi bint Muawwidh ibn Afra: She sought release from her marriage during the time of the Prophet, and the Prophet—or, according to another wording, she was—ordered to observe a waiting period of one menstrual cycle. It is also reported in this chapter from Ibn Abbas. Abu Isa said: The sound version of al-Rubayyi's report is that she was ordered to observe a waiting period of one menstrual cycle.

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Muhammad ibn Abd al-Rahim al-Baghdadi informed us: Ali ibn Bahr informed us: Hisham ibn Yusuf informed us, from Ma'mar, from Amr ibn Muslim, from Ikrimah, from Ibn Abbas: The wife of Thabit ibn Qays sought release from her marriage during the time of the Prophet, and the Prophet ordered her to observe a waiting period of one menstrual cycle. Abu Isa said: This hadith is hasan gharib. Scholars differed about the waiting period of a woman who obtains release through khul. Most scholars among the Companions of the Prophet and others said it is the same as that of a divorced woman: three menstrual cycles. This is the view of Sufyan al-Thawri and the scholars of Kufa, as well as Ahmad and Ishaq. Other scholars among the Companions and others said it is one menstrual cycle. Ishaq said: If someone adopts this view, it is a strong position.

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Abu Kurayb narrated to us: Muzahim ibn Dhawwad ibn Ulbah narrated to us, from his father, from Layth, from Abu al-Khattab, from Abu Zur'ah, from Abu Idris, from Thawban, from the Prophet, who said: Women who seek release from their marriages are hypocrites. Abu Isa said: This hadith is gharib through this route, and its chain is not strong. It is also reported from the Prophet that he said: Any woman who seeks release from her husband without cause will not smell the fragrance of Paradise.

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Bundar informed us: Abd al-Wahhab informed us: Ayyub narrated to us, from Abu Qilabah, from someone who narrated to him, from Thawban: The Messenger of Allah said: Any woman who asks her husband for divorce without cause will be forbidden the fragrance of Paradise. Abu Isa said: This hadith is hasan. It is also reported from Ayyub, from Abu Qilabah, from Abu Asma, from Thawban. Some narrators reported it from Ayyub through this chain without tracing it back to the Prophet.

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Abd Allah ibn Abi Ziyad narrated to us: Yaqub ibn Ibrahim ibn Sa'd narrated to us: Ibn Akhi Ibn Shihab narrated to us, from his uncle, from Sa'id ibn al-Musayyab, from Abu Hurairah, who said: The Messenger of Allah said: A woman is like a rib; if you try to straighten it, you will break it, but if you leave it, you can enjoy her while she remains bent. It is also reported in this chapter from Abu Dharr, Samurah, and Aishah. Abu Isa said: The hadith of Abu Hurairah is hasan sahih gharib through this route.

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Ahmad ibn Muhammad narrated to us: Ibn al-Mubarak informed us: Ibn Abi Dhi'b informed us, from al-Harith ibn Abd al-Rahman, from Hamzah ibn Abd Allah ibn Umar, from Ibn Umar, who said: I had a wife whom I loved, but my father disliked her and ordered me to divorce her. I refused, so I mentioned this to the Prophet. He said: O Abd Allah ibn Umar, divorce your wife. Abu Isa said: This hadith is hasan sahih. We know it only through the narration of Ibn Abi Dhi'b.

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Qutaybah narrated to us: Sufyan ibn Uyaynah narrated to us, from al-Zuhri, from Sa'id ibn al-Musayyab, from Abu Hurairah, tracing it back to the Prophet, who said: A woman should not ask for her co-wife to be divorced so that she may take over what is in her vessel. It is also reported in this chapter from Umm Salamah. Abu Isa said: The hadith of Abu Hurairah is hasan sahih.

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Muhammad ibn Abd al-A'la al-San'ani informed us: Marwan ibn Muawiyah al-Fazari informed us, from Ata ibn Ajlan, from Ikrimah ibn Khalid al-Makhzumi, from Abu Hurairah, who said: The Messenger of Allah said: Every divorce is valid except the divorce of a mentally incapacitated person whose reason is overcome. Abu Isa said: We know this hadith as traced back to the Prophet only through Ata ibn Ajlan, who is weak and whose reports are rejected. Scholars among the Companions of the Prophet and others act on this: the divorce of a mentally incapacitated person whose reason is overcome is not valid, unless he has periods of clarity and divorces during one of them.

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Qutaybah narrated to us: Ya'la ibn Shabib narrated to us, from Hisham ibn Urwah, from his father, from Aishah, who said: In the past, a man could divorce his wife as many times as he wished and still take her back during her waiting period, even if he had divorced her a hundred times or more. Then a man said to his wife: By Allah, I will not divorce you so that you become separated from me, nor will I ever give you shelter. She asked: How is that? He said: I will divorce you, and whenever your waiting period is about to end, I will take you back. The woman went to Aishah and told her. Aishah remained silent until the Prophet came, then she told him. The Prophet remained silent until the verse was revealed: “Divorce is twice; then retain her honorably or release her graciously.” Aishah said: Thereafter, people began the count of divorces anew, whether they had divorced before or not. Abu Kurayb narrated to us: Abd Allah ibn Idris narrated to us, from Hisham ibn Urwah, from his father, with a similar report in meaning, but without mentioning Aishah. Abu Isa said: This is more sound than the hadith of Ya'la ibn Shabib.

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Ahmad ibn Mani narrated to us: Husayn ibn Muhammad narrated to us: Shayban narrated to us, from Mansur, from Ibrahim, from al-Aswad, from Abu al-Sanabil ibn Ba'kak, who said: Subay'ah gave birth twenty-three or twenty-five days after her husband died. When she had recovered, she became interested in marrying, but people objected to this. The matter was mentioned to the Prophet, and he said: If you do that, your waiting period has ended. Ahmad ibn Mani narrated to us: al-Hasan ibn Musa narrated to us: Shayban narrated to us, with a similar report from Mansur. It is also reported in this chapter from Umm Salamah. Abu Isa said: The report of Abu al-Sanabil is well known through this route, but we do not know that al-Aswad heard it from Abu al-Sanabil. I heard Muhammad say: I do not know that Abu al-Sanabil lived beyond the Prophet's time. Most scholars among the Companions of the Prophet and others held that when a pregnant widow gives birth, she may marry, even if the other waiting period has not elapsed. This is the view of Sufyan al-Thawri, al-Shafi'i, Ahmad, and Ishaq. Other scholars among the Companions and others said she must observe whichever of the two periods ends later. The first view is more sound.