Malik said, "The explanation of the
statement of the Messenger of Allah, may Allah bless him and grant him
peace, according to what we think - and Allah knows best - is that 'Do
not ask for a woman in marriage when another muslim has already done
so' means that when a man has asked for a woman in marriage, and she
has inclined to him and they have agreed on a bride-price, which she
has suggested and with which they are mutually satisfied, it is
forbidden for another man to ask for that woman in marriage. It does
not mean that when a man has asked for a woman in marriage, and his
suit does not agree with her and she does not incline to him that no
one else can ask for her in marriage. That is a door to misery for
people."
Malik said, "That is what is
done among us about the marriage of virgins."
Malik said, "A
virgin has no right to her property until she enters her house and her
state (competence, maturity etc.) is known for sure."
Malik said, "The husband has
damages against her guardian when the guardian is her father, brother,
or one who is deemed to have knowledge of her condition. If the
guardian who gives her in marriage is a nephew, a mawla or a member of
her tribe who is not deemed to have knowledge of her condition, there
are no damages against him, and the woman returns what she has taken
of her bride-price, and the husband leaves her whatever amount is
thought to be fair."
Malik spoke about a woman whose
father gave her in marriage and made an unreturnable gift a condition
of the bride-price which was to be given. He said, "Whatever is given
as a condition by which marriage occurs belongs to the woman if she
wants it. If the husband parts from her before the marriage is
consummated, the husband has half of the unreturnable gift by which
the marriage occurred."
Malik said about a man who married
off 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 on
the day of marriage. If the young man did have property the bride-
price was taken from his property unless the father stipulated that he
would pay the bride-price. The marriage was affirmed for the son if he
was a minor only if he was under the guardianship of his father.
Malik said that if a man divorced his wife before he had
consummated the marriage and she was a virgin, her father returned
half of the bride-price to him. That half was permitted to the husband
from the father to compensate him for his expenses.
Malik
said that that was because Allah, the Blessed, the Exalted, said in
His Book, "Unless they (women with whom he had not consummated
marriage) make remission or he makes remission to him in whose hand is
the knot of marriage." (Sura 2 ayat 237). (He being the father of a
virgin daughter or the master of a female slave.)
Malik said,
"That is what I have heard about the matter, and that is how things
are done among us."
Malik said that a jewish or christian
woman who was married to a jew or christian and then became muslim
before the marriage had been consummated, did not keep anything from
the bride-price.
Malik said, "I do not think that women
should be married for less than a quarter of a dinar. That is the
lowest amount for which cutting off the hand is obliged ."
Malik commented, "I think
that this refers to sexual intercourse. When he comes in to her in her
room and she says, 'He has had intercourse with me' and he says, 'I
have not touched her', he is believed. When she comes in to him in his
room and he says, 'I have not had intercourse with her' and she says,
'He had intercourse with me', she is believed."
Malik affirmed, "That
is what is done among us."
Malik added, "If the man has
another wife, he divides his time equally between them after the
wedding nights. He does not count the wedding nights against the one
he has just married."
Malik said, "The custom
among us is that when a man marries a woman, and he makes a condition
in the marriage contract that he will not marry after her or take a
concubine, it means nothing unless there is an oath of divorce or
setting-free attached to it. Then it is obliged and required of him."
Malik said, about the muhallil, that he could not remain in the
marriage until he undertook a new marriage. If he had intercourse with
her in that marriage, she had her dowry.
Malik said that if a man married
the mother of a woman who was his wife and he had sexual relations
with the mother then his wife was haram for him, and he had to
separate from both of them. They were both haram to him forever, if he
had had sexual relations with the mother. If he had not had relations
with the mcther, his wife was not haram for him, and he separated from
the mother.
Malik explained further about the man who married
a woman, and then married her mother and cohabited with her, "The
mother will never be halal for him, and she is not halal for his
father or his son, and any daughters of hers are not halal for him and
so his wife is haram for him."
Malik said, "Fornication
however, does not make any of that haram because Allah, the Blessed,
the Exalted, mentioned 'the mothers of your wives,' as one whom
marriage made haram, and he didn't mention the making haram by
fornication. Every marriage in a halal manner in which a man cohabits
with his wife, is a halal marriage. This is what I have heard, and
this is how things are done among us."
Malik said, "If a man were to marry a woman
in her idda-period in a halal marriage and have relations with her, it
would be haram for his son to marry the woman. That is because the
father married her in a halal manner, and the hadd-punishment would
not have been applied to him. Any child who was born to him would be
attached to him as the father. Just as it would be haram for the son
to marry a woman whom his father had married in her idda-period and
had relations with, so the woman's daughter would be haram for the
father if he had had sexual relations with her."
Malik added,
''Said ibn al-Musayyab said that she had her dowry because he had
consummated the marriage."
Malik said,"The practice with us
concerning a free woman whose husband dies, is that she does an idda
of four months and ten days and she does not marry if she doubts her
period until she is free of any doubt or if she fears that she is
pregnant."
Malik
said, "A free man must not marry a slave-girl when he can afford to
marry a free-woman, and he should not marry a slave-girl when he
cannot afford a free woman unless he fears fornication. That is
because Allah, may he be Blessed and Exalted, says in His Book, 'If
you are not affluent enough to marry believing women, who are
muhsanat, take slave-girls who are believing women that your right
hands own.' (Sura 4 ayat 24) He says, 'That is for those of you who
fear al-anat.' "
Malik said, "Al-anat is fornication."
Malik said that if a man rnarried a female slave and then she
had a child by him, and then he bought her, she was not an umm walad
for him because of the child born to him while she belonged to
another, until she had had a child by him while she was in his
possession after he had purchased her.
Malik said, "If he
buys her and she is pregnant by him and she then gives birth while she
belongs to him, she is his umm walad by that pregnancy, according to
what we think, and Allah knows best."
Ibn
Shihab added, "I think that it was Ali ibn Abi Talib. "
Malik said that if a man
had sexual relations with a female slave that he owned, and then he
wanted to also have relations with her sister, the sister was not
halal for a man until intercourse with the slave-girl had been made
haram 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 than
his slave.
Malik said, "In our
opinion, Allah made marriage to believing slave-girls halal, and He
did not make halal marriage to christian and jewish slave-girls from
the People of the Book."
Malik said, "The christian and
jewish slave-girl are halal for their master by right of possession,
but intercourse with a magian slave-girl is not halal by the right of
possession."
Malik said, "All (of the people of knowledge) I have seen said
that a slave-girl makes a free man muhsan when he marries her and
consummates the marriage."
Malik said, "A slave makes a free
woman muhsana when he consummates a marriage with her and a free woman
only makes a slave muhsan when he is freed and he is her husband and
has had sexual relations with her after he has been set free. If he
parts from her before he is free, he is not a muhsan unless he marries
her after having been set free and he consummates the marriage."
Malik said, "When a slave-girl is married to a free man and then
he separates from her before she is set free, his marriage to her does
not make her muhsana. She is not muhsana until she has married after
she has been set free and she has had intercourse with her husband.
That gives her ihsan. If she is the wife of a freeman and then she is
set free while she is his wife before he separates from her, the man
makes her muhsana if he has intercourse with her after she has been
set free."
Malik said, "The christian and jewish free women
and the muslim slave-girl all make a muslim free man muhsan when he
marries one of them and has intercourse with her."
Malik said,
"This is the best of what I have heard about the matter."
Malik said, "The slave differs with the muhallil if the slave is given
permission by his master for his ex-wife. If his master does not give
him permission, he separates them. The muhallil is separated in any
case if he intends to make the woman halal by marriage."
Malik said, "When a slave is owned by his wife or a husband owns his
wife, the possession of each of them is rendered void without divorce.
If a man, for instance, is married to a slave-girl, and then he buys
her, he must divorce her as a matter of course. They can then re-
marry. If they re-marry afterwards, that separation was not divorce."
Malik said, "When a slave is freed by his wife who owns him
and she is in the idda-period from him, they can only return to each
other after she has made another marriage."
When Safwan came to the Messenger of Allah, may Allah
bless him and grant him peace, with his cloak, he called out to him
over the heads of the people, "Muhammad! Wahb ibn Umayr brought me
your cloak and claimed that you had summoned me to come to you and if
I was pleased with the matter, I should accept it and if not, you
would give me a respite for two months. "The Messenger of Allah, may
Allah bless him and grant him peace, said, "Come down, Abu Wahb." He
said, "No, by Allah! I will not come down until you make it clear to
me." The Messenger of Allah, may Allah bless him and grant him peace,
said, "You have a respite of four months." The Messenger of Allah, may
Allah bless him and grant him peace, went out toward Hawazin at
Hunayn. He sent to Safwan ibn Umayya to borrow some equipment and arms
that he had. Safwan said, "Willingly or unwillingly?" He said,
"Willingly." Therefore he lent him the equipment and arms which he
had. Then Safwan went out with the Messenger of Allah, may Allah bless
him and grant him peace, while he was still a kafir. He was present at
the battles of Hunayn and at-Ta'if while he was still a kafir and his
wife was a muslim. The Messenger of Allah, may Allah bless him and
grant him peace, did not separate Safwan and his wife until he had
become muslim, and his wife was settled with him by that marriage.
Ibn Shihab said, "We have not heard about any woman doing
hijra for Allah and His Messenger while her husband was a kafir
abiding in the land of kufr, but that her hijra separated her and her
husband unless her husband came in hijra before her period of idda had
been completed."
Malik said, "If a man becomes muslim before his
wife, a separation occurs between them when he presents Islam to her
and she does not become muslim, because Allah, the Blessed, the
Exalted, said in His Book, 'Do not hold fast to the ties of women who
are kafirun.' "
Anas said, "I went with the
Messenger of Allah, may Allah bless him and grant him peace, to eat
the food. He served barley bread and a soup with pumpkin in it. I saw
the Messenger of Allah, may Allah bless him and grant him peace, going
after the pumpkin around the dish, so I have always liked pumpkin
since that day."