Separating from Wives for Compensation (Khul')

31 Yahya related to me from Malik from Yahya ibn Sa'id that 'Amra bint 'Abd ar-Rahman told him from Habiba bint Sahl al-Ansari that she had been married to Thabit ibn Qays ibn Shammas. The Messenger of Allah, may Allah bless him and grant him peace, went out for the dawn prayer, and found Habiba bint Sahl at his door in the darkness. The Messenger of Allah, may Allah bless him and grant him peace, asked her, " Who is this? " She said, " I am Habiba bint Sahl, Messenger of Allah." He asked, " What do you want? " She replied, " That Thabit ibn Qays and I separate." When her husband, Thabit ibn Qays, came, the Messenger of Allah, may Allah bless him and grant him peace, said to him, " This is Habiba bint Sahl. She has mentioned what Allah willed that she mention." Habiba said, " Messenger of Allah, I have all that he has given me! " The Messenger of Allah, may Allah bless him and grant him peace, said to Thabit ibn Qays, " Take it from her." He took it from her and she stayed in the house of her family."

[Abu Dawud, an-Nasa'i and Ibn Majah]

32 Yahya related to me from Malik from Nafi' from a mawla of Safiyya bint Abi 'Ubayd that she gave all that she possessed to her husband as compensation for her divorce from him, and 'Abdullah ibn 'Umar did not disapprove of that.

Malik said that the divorce was ratified for a woman who ransomed herself from her husband, when it was known that her husband was injurious to her and was oppressive to her and it was known that he wronged her, and he had to return her property to her.

Malik added, " That 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."

29.12 Thu Khul' Divorce

33 Yahya related to me from Malik from Nafi' that Rubayyi' bint Mu'awwidh ibn 'Afra' came with her paternal uncle to 'Abdullah ibn 'Umar and told him that she had been divorced from her husband by compensating him in the time of 'Uthman ibn 'Affan, and'Uthman heard about it and did not disapprove.

'Abdullah ibn 'Umar said, " Her 'idda is the 'idda of a divorced woman."

Yahya related to me from Malik that he had heard that Sa'id ibn al-Musayyab and Sulayman ibn Yasar and Ibn Shihab all said that a woman who divorced her husband for compensation had the same 'idda as a divorced woman - three menstrual periods.

Malik said that a woman who ransomed herself could not return to her husband except by a new marriage. If he then married her (again) and then separated from her before he had had intercourse with her, there was no 'idda for her to observe from her second divorce, and she continued on from when her first 'idda stopped.

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."

29.13 Li'an (Invoking Mutual Curses)

34 Yahya related to me from Malik from Ibn Shihab that Sahl ibn Sa'id as-Sa'idi told him that 'Uwaymir al-'Ajlani came to 'Asim ibn 'Adi al-Ansari and said to him, " 'Asim! What do you think a man who finds another man with his wife should do? Should he kill him and then be killed himself, or what should he do, 'Asim? Ask the Messenger of Allah, may Allah bless him and grant him peace, about that for me." 'Asim asked the Messenger of Allah, may Allah bless him and grant him peace, about it. The Messenger of Allah, may Allah bless him and grant him peace, was revolted by the questions and reproved them until what 'Asim heard from the Messenger of Allah, may Allah bless him and grant him peace, became too much for him to bear.

When 'Asim returned to his people, 'Uwaymir came to him and said, " 'Asim! What did the Messenger of Allah, may Allah bless him and grant him peace, say to you? " 'Asim said to 'Uwaymir, " You did not bring me any good. The Messenger of Allah, may Allah bless him and grant him peace, was revolted by the question which I asked him." 'Uwaymir said, " By Allah! I will not stop until I ask him about it myself! " 'Uwaymir stood up and went to the Messenger of Allah, may Allah bless him and grant him peace, in the middle of the people and said, " Messenger of Allah! What do you think a man who finds another man with his wife should do? Should he kill him and then be killed himself, or what should he do? " The Messenger of Allah, may Allah bless him and grant him peace, said. " Something has been sent down about you and your wife, so go and bring her."

Sahl continued, " They mutually cursed one another in the presence of the Messenger of Allah, 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 when became the sunna for a couple mutually cursing each other (li'an)."

[In Bukhari and Muslim]

35 Yahya related to me from Malik from Nafi' from 'Abdullah ibn 'Umar that a man cursed his wife in the time of the Messenger of Allah, may Allah bless him and grant him peace, and disowned her child. The Messenger of Allah, may Allah bless him and grant him peace, separated them and gave the child to the woman.

Malik said, " Allah the Blessed, the Exalted, says, 'Those who make an accusation against their wives and have no witnesses except themselves, the legal proceeding of such a one is to testify four times by Allah that he is telling the truth and a fifth time that Allah's curse will be upon him if he is lying. And the punishment is removed from her if she testifies four times by Allah that he is lying and a fifth time that Allah's anger will be upon her if he speaks the truth.'" (24: 6-9)

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 attributed 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, so that it is not known that the pregnancy is by him."

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 freeman as regards making accusations and invoking mutual curses (li'an). He acts in the li'an as the freeman acts although no hadd applies for slandering a female slave."

Malik said, " The Muslim slave-girl and the Christian and Jewish freewoman also do li'an when a free Muslim marries one of them and has intercourse with her. That is because Allah - may He be blessed and exalted, says in His Book, 'Those who make an accusation against their wives, ' and they are their wives. This is what is done among us."

Malik said, " If a slave marries a free Muslim woman, or a Muslim slave-girl, or a free Chrrstian or Jewish woman, he can do li'an against her."

Malik said that if a man pronounced the li'an with his wife, and then stopped and called himself a liar after one or two oaths without having asked for curses on himself in the fifth one, he should be flogged with the hadd punishment [for slander], 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 li'an.

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

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

29.14 Inheritance of Children of Women against whom Li'an has been Pronounced

36 Yahya related to me from Malik that he had heard that 'Urwa ibn az-Zubayr said that if the child of the woman against whom li'an had been pronounced or the child of fornication died, his mother inherited from him her right or mentioned in the Book of Allah the Exalted, and his maternal half-brothers had their rights. The rest was inherited by the owners of his mother's wala' if she was a freed slave. If she was an ordinary freewoman, she inherited her right, his maternal brothers inherited their rights, and the rest went to the Muslims."

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

Divorce of Virgins

37 Yahya related to me from Malik from Ibn Shihab from Muhammad ibn 'Abd ar-Rahman ibn Thawban that Muhammad ibn Iyas ibn al-Bukayr said, " A man divorced his wife three times before he had consummated the marriage, and then it seemed good to him to marry her. He wanted, therefore, an opinion, and I went with him to ask 'Abdullah ibn 'Abbas and Abu Hurayra on his behalf about it, and they said, 'We do not think that you should marry her until she has married another husband.' He protested that his divorcing her had been only once. Ibn 'Abbas said, 'You threw away what you had of blessing.'"

38 Yahya related to me from Malik from Yahya ibn Sa'id from Bukayr ibn 'Abdullah al-Ashajj from an-Nu'man ibn Abi 'Ayyash al-Ansari from 'Ata' ibn Yasar that a man came and asked 'Abdullah ibn 'Amr ibnal-'As about a man who divorced his wife three times before he had had intercourse with her. 'Ata' said, " The divorce of the virgin is one. 'Abdullah ibn 'Amr ibn al-'As said to me, 'You say one pronouncement completely separates her from her husband and three makes her haram until she has married another husband.'"

39 Yahya related to me from Malik from Yahya ibn Sa'id that Bukayr ibn 'Abdullah al-Ashajj informed him that Mu'awiya ibn Abi 'Ayyash al-Ansari told him that he was sitting with 'Abdullah ibn az-Zubayr and 'Asim ibn 'Umar ibn al-Khattab when Muhammad ibn Iyas ibn al-Bukayr came up to them and said, " A man from the desert has divorced his wife three times before consummating the marriage. What do you think? " 'Abdullah ibn az-Zubayr said, " This is something about which we have no statement. Go to 'Abdullah ibn 'Abbas and Abu Hurayra. I left them with 'A'isha. Ask them and then come and tell us." He went and asked them. Ibn 'Abbas said to Abu Hurayra, " Give an opinion, Abu Hurayra! A difficult one has come to you." Abu Hurayra said, " One pronouncement separates her and three makes her haram until she has married another husband." Ibn 'Abbas said something similar to that.

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."

Divorce of Sick Men

40 Yahya related to me from Malik from Ibn Shihab that Talha ibn 'Abdullah ibn 'Awf said, and he knew better than them, from Abu Salama ibn 'Abd ar-Rahman ibn 'Awf that 'Abd ar-Rahman ibn 'Awf divorced his wife irrevocably while he was terminally ill and 'Uthman ibn 'Affan made her an heir after the end of her 'idda.

41 Yahya related to me from Malik from 'Abdullah ibn al-Fadl from al-A'raj that 'Uthman ibn 'Affan made the wives of Ibn Mukmil inherit from him, and he had divorced them while he was terminally ill.

42 Yahya related to me from Malik that he heard Rabi'a ibn Abi 'Abd ar-Rahman say, " I heard that the wife of 'Abd ar-Rahman ibn 'Awf asked him to divorce her. He said, 'When you have menstruated and are pure, then let me know.' She did not menstruate until 'Abd ar-Rahman ibn 'Awf was ill. When she was purified, she told him and he divorced her irrevocably or made a pronouncement of divorce which was all that he had left over her. 'Abd ar-Rahman ibn 'Awf was terminally ill at the time, so 'Uthman ibn 'Affan made her one of the heirs after the end of her 'idda."

43 Yahya related to me from Malik from Yahya ibn Sa'id that Muhammad ibn Yahya ibn Habban said, " My grandfather Habban had two wives, one from the Banu Hashim and one from the Ansar. He divorced the Ansari wife while she was nursing, and a year passed and he died and she had still not menstruated. She said, 'I inherit from him. I have not menstruated yet.' The wives quarrelled and went to 'Uthman ibn 'Affan. He decided that she did inherit, and the Hashim wife rebuked 'Uthman. He said, 'This is the practice of the son of your paternal uncle. He pointed this out to us.' He meant 'Ali ibn Abi Talib."

44 Yahya related to me from Malik that he had heard Ibn Shihab say, " When a man who is terminally ill divorces his wife three times, she still inherits from him."

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 has 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."

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