Muwatta Malik: Chapter 29

Malik said, "That is
what I like best of what I have heard on the subject."

29.2
Divorce by Euphemistic Statements

Malik
said, "That is the best of what I have heard on the subject."

Malik said that any strong statements such as these or others were
considered as three pronouncements of divorce for a woman whose
marriage had been consummated. In the case of a woman whose marriage
had not been consummated, the man was asked to make an oath on his
deen, as to whether he had intended one or three pronouncements of
divorce. If he had intended one pronouncement, he was asked to make an
oath by Allah to confirm it, and he became a suitor among other
suitors, because a woman whose marriage had been consummated, required
three pronouncements of divorce to make her inaccessible for the
husband, whilst only one pronouncement was needed to make a woman
whose marriage had not been consummated inaccessible.

Malik
added, "That is the best of what I have heard about the matter."

Malik said that if a man made any
strong statement such as these to his wife, it counted as three
pronouncements of divorce for a woman whose marriage had been
consummated, or it was written as one of three for a woman whose
marriage had not been consummated, whichever the man wished. If he
said he intended only one divorce he swore to it and he became one of
the suitors because, whereas a woman whose marriage had been
consummated was made inaccessible by three pronouncements of divorce,
the woman whose marriage had not been consummated was made
inaccessible by only one pronouncement.

Malik said, "That is
the best of what I have heard."

Malik said that Abd ar-Rahman declared that this
decision had amazed al-Qasim, who thought it the best that he had
heard on the subject.

Malik added, "That is also the best of
what I have heard on the subject."

Malik said that a
woman whose husband gave her power over herself and they separated
while she was unwilling, had no power to revoke the divorce. She only
had power over herself as long as they remained together.

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

Malik added, "That was also the opinion of Ibn Shihab."

Malik said that if a man made a vow to abstain from intercourse
with his wife and at the end of four months he declared his intent to
continue to abstain, he was divorced. He could go back to his wife,
but if he did not have intercourse with her before the end of her
idda, he had no access to her and he could not go back to her unless
he had an excuse - illness, imprisonment, or a similar excuse. His
return to her maintained her as his wife. If her idda passed and then
he married her after that and did not have intercourse with her until
four months had passed and he declared his intent to continue to
abstain, divorce was applied to him by the first vow. If four months
passed, and he had not returned to her, he had no idda against her nor
access because he had married her and then divorced her before
touching her.

Malik said that a man who made a vow to abstain
from intercourse with his wife and continued to abstain after four
months and so divorced her, but then returned and did not touch her
and four months were completed before her idda was completed, did not
have to declare his intent and divorce did not befall him. If he had
intercourse with her before the end of her idda, he was entitled to
her. If her idda passed before he had intercourse with her, he had no
access to her. This is what Malik preferred of what he had heard on
the subject.

Malik said that if a man made a vow to abstain
from intercourse with his wife and then divorced her, and the four
months of the vow were completed before completion of the idda of the
divorce, it counted as two pronouncements of divorce. If he declared
his intention to continue to abstain and the idda of the divorce
finished before the four months the vow of abstention was not a
divorce. That was because the four months had passed and she was not
his on that day.

Malik said, "If someone makes a vow not to
have intercourse with his wife for a day or a month and then waits
until more than four months have passed, it is not ila. Ila only
applies to someone who vows more than four months. As for the one who
vows not to have intercourse with his wife for four months or less
than that, I do not think that it is ila because when the term enters
into it at which it stops, he comes out of his oath and he does not
have to declare his intention."

Malik said, "If someone vows
to his wife not to have intercourse with her until her child has been
weaned, that is not ila. I have heard that Ali ibn Abi Talib was asked
about that and he did not think that it was ila."

Malik
said, "That is what is done among us. Allah, the Exalted said about
the kaffara for pronouncing dhihar, 'It is to free a slave before they
touch one another. If he does not find the means to do that, then
fasting for two consecutive months before they touch one another. If
he cannot do that, it is to feed sixty poor people. ' " (Sura 58 ayats
4,5).

Malik said that a man who pronounced dhihar from his
wife on various occasions had only to do one kaffara. If he pronounced
dhihar, and then did kaffara, and then pronounced dhihar after he had
done the kaffara, he had to do kaffara again.

Malik said,
"Some one who pronounces dhihar from his wife and then has intercourse
with her before he has done kaffara, only has to do one kaffara. He
must abstain from her until he does kaffara and ask forgiveness of
Allah. That is the best of what I have heard. "

Malik said,
"It is the same with dhihar using any prohibited relations of
fosterage and ancestry."

Malik said, "Women have no dhihar."

Malik said that he had heard that the commentary on the word
of Allah, the Blessed, the Exalted, "Those of you who pronounce the
dhihar about their wives, and then retract what they have said," (Sura
56 ayat 3), was that a man pronounced dhihar on his wife and then
decided to keep her and have intercourse with her. If he decided on
that, he must do kaffara. If he divorced her and did not decide to
retract his dhihar of her and to keep her and have intercourse with
her, there would be no kaffara incumbent on him.

Maliksaid,
"If he marries her after that, he does not touch her until he has
completed the kaffara of pronouncing dhihar."

Malik said that
if a man who pronounced dhihar from his slave-girl wanted to have
intercourse with her, he had to do the kaffara of the dhihar before he
could sleep with her.

Malik said, "There is no ila in a man's
dhihar unless it is evident that he does not intend to retract his
dhihar."

Malik said, "He meant that the same conditions were applied
in both cases."

Malik said, "The dhihar of the slave is
incumbent on him, and the fasting of the slave in the dhihar is two
months. "

Malik said that there was no ila for a slave who
pronounced a dhihar from his wife. That was because if he were to fast
the kaffara for pronouncing a dhihar, the divorce of the ila would
come to him before he had finished the fast.

Malik said, "If her husband has intercourse with
her and she claims that she did not know, she still has the right of
choice. If she is suspect and one does not believe her claim of
ignorance, then she has no choice after he has had intercourse with
her."

Malik added, "That is the best of what I have
heard."

Malik said that if a woman who had been given the
right of choice by her husband chose herself, she was divorced trebly.
If her husband said, "But I only gave her the right of choice in one,"
he had none of that. That was the best of what he had heard.

Malik said, "If the man gives his wife the right of choice and she
says, 'I accept one', and he says, 'I did not mean that, I have given
the right of choice in all three together,' then if she only accepts
one, she remains with him in her marriage, and that is not separation
if Allah, the Exalted wills."

Malik said that divorce was ratified for
a woman who ransomed herself from her husband, when it was known that
her husband was detrimental to her and was oppressive for her, and it
was known that he wronged her, and he had to return her property to
her. Malik added, "This is what I have heard, and it is what is done
among us."

Malik said, "There is no harm if a woman ransoms
herself from her husband for more than he gave her."

Malik said that a
woman who ransomed herself could not return to her husband except by a
new marriage. If someone married her and then separated from her
before he had intercourse with her, there was no idda against her from
the recent marriage, and she rested on her first idda.

Malik
said, "That is the best that I have heard on the matter."

Malik said, "If, when a woman offers to compensate her husband, he
divorces her straightaway, then that compensation is confirmed for
him. If he makes no response, and then at a later date, does divorce
her, he is not entitled to that compensation."

Sahl
continued, "They mutually cursed one another in the presence of the
Messenger, may Allah bless him and grant him peace, and I was present
with the people. When they finished cursing each other, Uwaymir said,
'I shall have lied about her, Messenger of Allah, if I keep her,' and
pronounced the divorce three times before the Messenger of Allah, may
Allah bless him and grant him peace, ordered him to do it."

Malik said that Ibn Shihab said, "That was how the sunna of a couple
mutually cursing each other was established (lian)."

Malik said, "Allah the
Blessed, the Exalted, said, 'The testimony of men who accuse their
wives but do not have any witnesses except themselves is to testify by
Allah four times that he is being truthful, and a fifth time, that the
curse of Allah will be upon him, if he should be a liar. She will
avoid punishment if she testifies by Allah four times that he is a
liar, and a fifth time, that the wrath of Allah shall be upon her, if
he should be telling the truth. ' "(Sura 24 ayat 6).

Malik
said, "The sunna with us is that those who curse each other are never
to be remarried. If the man calls himself a liar, (i.e. takes back his
accusation), he is flogged with the hadd-punishment, and the child is
given to him, and his wife can never return to him. There is no doubt
or dispute about this sunna among us. "

Malik said, "If a man
separates from his wife by an irrevocable divorce by which he cannot
return to her, and then he denies the paternity of the child she is
carrying, whilst she claims that he is the father, and it is possible
by the timing, that he be so, he must curse her, and the child is not
recognised as his."

Malik said, "That is what is done among
us, and it is what I have heard from the people of knowledge."

Malik said that a man who accused his wife after he had divorced
her trebly while she was pregnant, and he had at first accepted being
the father but then claimed that he had seen her committing adultery
before he separated from her, was flogged with the hadd-punishment,
and did not curse her.

If he denied the paternity of her
child after he had divorced her trebly, and he had not previously
accepted it, then he cursed her.

Malik said, "This is what I
have heard."

Malik said, "The slave is in the same position
as the free man as regards making accusations and invoking mutual
curses (lian). He acts in the lian as the free man acts although there
is no hadd applied for slandering a female-slave."

Malik
said, "The muslim slave-girl and the christian and jewish free woman
also do lian when a free muslim marries one of them and has
intercourse with her. That is because Allah - may He be blessed and
Exalted, said in His Book, 'As for those who accuse their wives,' and
they are their wives. This is what is done among us.

Malik
said that a man who did the lian with his wife, and then stopped and
called himself a liar after one or two oaths and he had not cursed
himself in the fifth one, had to be flogged with the hadd-punishment,
but they did not have to be separated.

Malik said that if a
man divorced his wife and then after three months the woman said, "I
am pregnant," and he denied paternity, then he had to do lian.

Malik said that the husband of a female slave who pronounced the
lian on her and then bought her, was not to have intercourse with her,
even if he owned her. The sunna which had been handed down about a
couple who mutually cursed each other in the lian was that they were
never to return to each other.

Malik said that when a man
pronounced the lian against his wife before he had consummated the
marriage, she only had half of the bride price.

Malik said,"I
heard the same as that from Sulayman ibn Yasar, and it is what I saw
the people of knowledge in our city doing."

Malik said, "That
is what is done among us, and when a man marries a woman who has been
married before, and he has not had intercourse with her, she is
treated as a virgin - one pronouncement separates her and three make
her haram until she has married another husband."

Malik said, "If he divorces her while he
is terminally ill before he has consummated the marriage, she has half
of the bride-price and inherits, and she does not have to do an idda.
If he consummated the marriage, she has all the dowry and inherits.
The virgin and the previously married woman are the same in this
situation according to us."

Malik said, "I have also
heard the same as that from al-Qasim ibn Muhammad."

Malik
said, "There is no fixed limit among us as to how small or large the
compensation is."

Malik said, "A free man is not obliged to pay
for the suckling of his son when he is a slave of other people, nor is
a slave obliged to spend his money for what his master owns except
with the permission of his master."

Malik said, "If she marries after her idda is over, regardless of
whether the new husband has consummated the marriage or not, her first
husband has no means of access to her."

Malik said, "That is
what is done among us and if her husband reaches her before she has
remarried, he is more entitled to her."

Malik said that he
had seen people disapproving of someone who said that one of the
people (of knowledge) attributed to Umar ibn al-Khattab that he said,
"Her first husband chooses when he comes either her bride-price or his
wife."

Malik said, "I have heard that Umar ibn al-Khattab,
speaking about a woman whose husband divorced her while he was absent
from her, and then he took her back and the news of his taking her
back had not reached her, while the news of his divorcing her had, and
so she had married again, said, 'Her first husband who divorced her
has no means of access to her whether or not the new husband has
consummated the marriage.' "

Malik said, "This is what I like
the best of what I heard about the missing man."

Malik said,
"This is how things are done among us."

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

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

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

Malik added, "The hadd-punishment which a slave
incurs is the same as this. When he is freed after he has incurred but
before the punishment has been executed, his hadd is the hadd of the
slave."

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

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

Malik said, "What is done among us about a divorced
woman whose periods stop when her husband divorces her is that she
waits nine months. If she has not had a period in them, she has an
idda of three months. If she has a period before the end of the three
months, she accepts the period. If another nine months pass without
her having a period, she does an idda of three months. If she has a
second period before the end of those three months, she accepts the
period. If nine months then pass without a period, she does an idda of
three months. If she has a third period, the idda of the period is
complete. If she does not have a period, she waits three months, and
then she is free to marry. Her husband can return to her before she
becomes free to marry unless he made her divorce irrevocable."

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

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

Malik said, "That is the
best of what I have heard from the people of knowledge. Whatever the
two arbiters say concerning separation or joining is taken into
consideration "

Malik said,
"As for someone who has intercourse with his wife and then is
prevented from intercourse with her, I have not heard that there is a
deadline set for him or that they are separated."

Malik said, "That is what is done among us and there is no
dispute about it."

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

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

Malik said, "That is what I saw the people of knowledge in
our city doing."

29.30 Idda of Widows when Pregnant

Malik said, "This is how the people of knowledge here continue to
act."

29.31 Widows Remaining in Their Houses until Free to
Marry

She said,
"I asked the Messenger of Allah, may Allah bless him and grant him
peace, if I could return to my people in the Banu Khudra, as my
husband had not left me in a dwelling which belonged to him, and had
left me no maintenance. The Messenger of Allah, may Allah bless him
and grant him peace, said,'Yes.' So I left. When I was in the
courtyard, the Messenger of Allah, may Allah bless him and grant him
peace, called me or summoned me, and I answered him. He said, 'What
did you say?' I repeated the story about my husband. He said, 'Stay in
your house until what is written reaches its term.' I did the idda in
the house for four months and ten days."

She added, "When
Uthman ibn Affan sent for me, I told him that, and he followed it and
made decisions by it."

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

Malik added, "If she does not have a
menstrual period, her idda is three months."

Malik said, about a slave who divorced a slave-girl but did
not make it absolute, "He can return to her. If he then dies while she
is still in the idda from her divorce, she does the idda of a slave-
girl whose husband dies, and it is two months and five days. If she
has been set free and he can return to her, and she does not choose to
separate after she has been set free, and he dies while she is in the
idda from the divorce, she does the idda of a free woman whose husband
has died, four months and ten days. That is because the idda of
widowhood befell her while she was free, so her idda is the idda of a
free woman."

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

Malik said, "A man does not practise coitus interruptus with a
free woman unless she gives her permission. There is no harm in
practising coitus interruptus with a slave-girl without her
permission. Someone who has someone else's slave-girl as a wife, does
not practise coitus interruptus with her unless her people give him
permission."

Humayd ibn Nafi said, "I asked Zaynab to
explain what 'throwing away the piece of dung at the end of a year'
meant. Zaynab said, 'In the Jahiliyya when a woman's husband died, she
went into a small tent and dressed in the worst of clothes. She did
not touch perfume or anything until a year had passed. Then she was
brought an animal - a donkey, a sheep, or a bird, and she would break
her idda with it, by rubbing her body against it (taftaddu). Rarely
did she break her idda with anything (by rubbing herself against it)
but that it died. Then she would come out and would be given a piece
of dung. She would throw it away and then return to whatever she
wished of perfumes or whatever.' "

Malik explained,
'Taftaddu' means to wipe her skin with it in the same way as with a
healing charm."

Malik said, "If there is a necessity, the deen of Allah is
ease."

Malik said, "A woman whose husband has died should anoint her
eyes with olive oil and sesame oil and the like of that since there is
no perfume in it."

Malik said, "A woman in mourning for her
husband should not put on any jewellery - rings, anklets, or such-
like, neither should she dress in any sort of colourful, striped
garment unless it is coarse. She should not wear any cloth dyed with
anything except black, and she should only dress her hair with things
like lotus-tree leaves which do not dye the hair."

Malik said, "The mourning of a
young girl who has not yet had a menstrual period takes the same form
as the mourning of one who has had a period. She avoids what a mature
woman avoids if her husband dies."

Malik said, "A slave-girl
mourns her husband when he dies for two months and five nights like
her idda.''

Malik said, "An umm walad does not have to mourn
when her master dies, and a slave-girl does not have to mourn when her
master dies. Mourning is for those with husbands."