When Allowing a Wife Her Authority Does Not Constitute a Divorce

14 Yahya related to me from Malik from 'Abd ar-Rahman ibn al-Qasim from his father that 'A'isha, Umm al-Muminin, proposed to Qurayba bint Abi Umayya on behalf of 'Abd ar-Rahman ibn Abi Bakr. They married her to him and her people found fault with 'Abd ar-Rahman and said, " We only gave in marriage because of 'A'isha." 'A'isha therefore sent to 'Abd ar-Rahman and told him about it. He gave Qurayba authority over herself and she chose her husband and so there was no divorce.

15 Yahya related to me from Malik from 'Abd ar-Rahman ibn al-Qasim from his father that 'A'isha, the wife of the Prophet, may Allah bless him and grant him peace, gave Hafsa bint 'Abd ar-Rahman in marriage to al-Mundhir ibn az-Zubayr while 'Abd ar-Rahman was away in Syria. When 'Abd ar-Rahman arrived, he said, " Shall someone like me have this done to him? Am I the kind of man to have something done to him without his consent? " 'A'isha spoke to al-Mundhir ibn az-Zubayr, and al-Mundhir said, " It is in the hands of 'Abd ar-Rahman." 'Abd ar-Rahman said, " I will not oppose something that you have already completed." Hafsa was confirmed with al-Mundhir, and there was no divorce.

16 Yahya related to me from Malik that he had heard that 'Abdullah ibn 'Umar and Abu Hurayra were asked about a man who gave his wife power over herself, and she returned it to him without doing anything with it. They said that there was no divorce. (i.e. the man's giving his wife power over herself was not interpreted as an actual expression of divorce on his part.)

Yahya related to me from Malik from Yahya ibn Sa'id that Sa'id ibn al-Musayyab said, " If a man gives his wife authority over herself, and she does not separate from him and remains with him, there is no divorce."

Malik said about a woman whose husband gave her power over herself and they then separated while she refused to do that, that she had no longer has power to invoke the divorce. She only had power over herself as long as they remained together in the same meeting.

29.6 Annulment of Marriage by the Husband's Vow to Refrain from Intercourse (Ila')

17 Yahya related to me from Malik from Ja'far ibn Muhammad from his father that 'Ali ibn Abi Talib said, " When a man takes a vow to abstain from intercourse, divorce does not occur immediately. If four months pass, he must declare his intent and either he is divorced or he revokes his vow."

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

18 Yahya related to me from Malik from Nafi' that 'Abdullah ibn 'Umar said, " When a man makes a vow to abstain from intercourse with his wife, and four months have passed, he must declare his intent and either he is divorced or he revokes his vow. Divorce does not occur until four months have passed and he is made to declare his intent."

Yahya related to me from Malik from Ibn Shihab that Sa'id ibn al-Musayyab and Abu Bakr ibn 'Abd ar-Rahman said about a man who made a vow to abstain from intercourse with his wife, " If four months pass it is a divorce. The husband can go back to his wife as long as she is still in her 'idda."

19 Yahya related to me from Malik that he had heard that Marwan ibn al-Hakam decided about a man who had made a vow to abstain from intercourse with his wife that when four months had passed, it was a divorce and he could return to her as long as she was still in her 'idda.

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 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 from his wife and continued to abstain after four months and so divorced her, but then took her back but 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, then he had no access to her.

Malik said, " This is the best that I have heard about this matter."

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, 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 sexual 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 amounted to ila'."

29.7 The Ila' (Vow of Abstention) of Slaves

Yahya related to me from Malik that he had asked Ibn Shihab about the ila' of the slave. He said that it was like the ila' of the freeman, and it put an obligation on him. The ila' of the slave was two months.

29.8 Dhihar of Freemen

20 Yahya related to me from Malik from Sa'id ibn 'Amr ibn Sulaym az-Zuraqi that he asked al-Qasim ibn Muhammad about a man who made divorce conditional on his marrying a woman (i.e. if he married her he would automatically divorce her.) Al-Qasim ibn Muhammad said, " A man once made a woman like his mother's back, (i.e. has made haram for him by dhihar) if he were to marry her, and 'Umar ibn al-Khattab ordered him not to go near her if he married her until he had done kaffara as one would for pronouncing dhihar."

21 Yahya related to me from Malik that he had heard that a man asked al-Qasim ibn Muhammad and Sulayman ibn Yasar about a man who pronounced dhihar from his wife before he had married her. They said, " If he marries her, he must not touch her until he has done the kaffara for pronouncing dhihar."

22 Yahya related to me from Malik from Hisham ibn 'Urwa that his father said that a man who pronounced a dhihar from his four wives in one statement had only to do one kaffara.

Yahya related the same as that to me from Malik from Rabi'a ibn Abi 'Abd ar-Rahman.

Malik said, " That is what is done among us. Allah, the Exalted, says about the kaffara for pronouncing dhihar, 'Anyone who cannot find the means must fast for two consecutive months before the two of them may touch one another again. And anyone who is unable to do that must feed sixty poor people.'" (58: 3-4)

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, " Someone 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 has completed the 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 either fosterage or ancestry."

Malik said, " Women cannot pronounce dhihar."

Malik said that he had heard that the commentary on the word of Allah, the Blessed, the Exalted, " Those who divorce their wives by equating them with their mothers, and then wish to go back on what they said" (56: 3), was that a man pronounced dhihar on his wife and then decided to keep her and have intercourse with her. If he divorced her and without having decided, after pronouncing dhihar on her, to keep her and have intercourse with her, there would be no kaffara incumbent on him.

Malik said, " 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."

23 Yahya related to me from Malik from Hisham ibn 'Urwa that he heard a man ask 'Urwa ibn az-Zubayr about a man who said to his wife, " Any woman I marry along with you as long as you live will be like my mother's back to me." 'Urwa ibn az-Zubayr said, " Freeing a slaves is enough to release him from that."

29.9 Dhihar of Slaves

24 Yahya related to me from Malik that he asked Ibn Shihab about the dhihar of a slave. He said, " It is like the dhihar of a freeman."

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.

29.10 The Option (of Slave-girls Married to Slaves when Freed)

25 Yahya related to me from Malik from Rabi'a ibn Abi 'Abd ar-Rahman from al-Qasim ibn Muhammad that 'A'isha, Umm al-Muminin, said, " There were three sunnas established in connection with Barira: firstly was that when she was set free she was given her choice about her husband; secondly, the Messenger of Allah, may Allah bless him and grant him peace, said about her, 'The right of inheritance belongs to the person who has set a person free'; and thirdly, the Messenger of Allah, may Allah bless him and grant him peace, came in and there was a pot with meat on the boil. Bread and condiments were brought to him from the stock of the house. The Messenger of Allah, may Allah bless him and grant him peace, said, 'Didn't I see a pot with meat in it? ' They said, 'Yes, Messenger of Allah. That is meat which was given as sadaqa for Barira, and you do not eat sadaqa.' The Messenger of Allah, may Allah bless him and grant him peace, said, 'It is sadaqa for her, and it is a gift for us.' "

[Bukahri and Muslim]

26 Yahya related to me from Malik from Nafi' that 'Abdullah ibn 'Umar said that a female slave who was the wife of a slave and then was set free had the right of choice as long as he did not have intercourse with her.

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."

27 Yahya related to me from Malik from Ibn Shihab from 'Urwa ibn az-Zubayr that a mawla of the tribe of Banu 'Adi called Zabra' told him that she had been the wife of a slave when she was a slave-girl. Then she was set free and she sent a message to Hafsa, the wife of the Prophet, may Allah bless him and grant him peace. Hafsa called her and said, " I will tell you something, but I would prefer that you did not act upon it. You have authority over yourself as long as your husband does not have intercourse with you. If he has intercourse with you, you have no authority at all." Therefore she pronounced her divorce from him three times.

28 Yahya related to me from Malik that he had heard that Sa'id ibn al-Musayyab said that if a man married a woman, and he was insane or had a physical defect, she had the right of choice. If she wished she could separate from him.

29 Malik said that if a slave-girl, who was the wife of a slave, was set free before he had consummated the marriage, and she chose herself, then she had no bride-price and it was a pronouncement of divorce.

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

30 Yahya related to me that Malik heard Ibn Shihab say, " When a man gives his wife the right of choice, and she chooses him, that is not divorce."

Malik said, " 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 divorce in one, " he was not allowed to do that.

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."

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